1 Brief of the European Union, amicus curiae, McCarver v. North Carolina, 533 U.S. 975 (2001) (No. 00-8727), available in 2001 WL 648609 (resubmitted in Atkins) [hereinafter EU Brief]; Brief of Diplomats Morton Abramowitz et al., amici curiae, McCarver (No. 00-8727) • availablein 2001 WL 648607 (resubmitted in Atkins) [hereinafter Abramowitz Brief]; Brief of Mary Robinson et al., amici curiae, Lawrence, 123 S.Ct. 2472 (2003) (No. 02-102), available in 2003 WL 164151 [hereinafter Robinson Brief]; see also Brief of the American Bar Association as amicus curiae at 24 n.15, Lawrence (No. 02-102), available in 2003 WL 164108 (referring to international materials in a footnote).

2 Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002); Lawrence v. Texas, 123 S.Ct. 2472, 2483 (2003).

3 Lawrence, 123 S.Ct. at 2494-95 (Scalia, J., dissenting); Atkins, 536 U.S. at 347-48 (Scalia, J., dissenting); see also id. at 324-25 (Rehnquist, C.J., dissenting) (“I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court’s ultimate determination.”); Foster v. Florida, 537 U.S. 990, 990 n.* (2002) (Thomas, J., concurring) (“[T]his Court... should not impose foreign moods, fads, or fashions on Americans.”).

4 See, e.g., Stanford v. Kentucky, 492 U.S. 361 (1989); Thompson v. Oklahoma, 487 U.S. 815 (1988).

5 U.S. CONST, amend. VIII; see Atkins, 536 U.S. at 306.

6 See briefs cited supra note 1.

7 Harold Hongju, Koh, Paying “Decent Respect” to World Opinion on the Death Penalty, 35 U.C. Davis L. Rev. 1085, 1109–1129 (2002).Google Scholar

8 Atkins, 536 U.S. at 316 n.21 (“Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.”) (citing EU Brief, supra note 1).

9 Lawrence, 123 S.Ct. at 2472-75.

10 Robinson Brief, supra note 1.

11 478 U.S. 186(1986).

12 Lawrence, 123 S.Ct. at 2483:

See also id. at 2481 (noting that Dudgeon decision of the European Court of Human Rights “is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization”).

13 Atkins, 536 U.S. at 347-48 (Scalia, J., dissenting) (quoting Thompson v. Oklahoma, 487 U.S. 815, 868–69 n.4 (1988) (Scalia, J., dissenting)); see also Lawrence, 123 S.Ct. at2494 (Scalia, J., dissenting) (“Constitutional entitlements do not spring into existence... as the Court seems to believe, because foreign nations decriminalize conduct The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta.”).

14 I have used international materials in this way in previous writings to illuminate the Constitution’ s use of international relations concepts such as war and treaty making. See, e.g., Michael, D. Ramsey, Presidential Declarations of War, 37 U.C. Davis L. Rev. 321 (2003)Google Scholar (war power); Michael, D. Ramsey, Textualism and War Power, 69 U. Chi. L. Rev. 1543 (2002)Google Scholar (same); Saikrishna, B. Prakash & Michael, D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231 (2001)Google Scholar (presidential power); Michael, D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C.L.Rev. 133 (1998)Google Scholar (treaty power).

15 See Mark, W. Janis, An Introduction to International law 41–84 (4th ed. 2003)Google Scholar (discussing sources of international law).

16 E.g., Palko v. Connecticut, 302 U.S. 319 (1937); Hurtado v. California, 110 U.S. 516 (1884); see Thompson, 487 U.S. at 868 n.4 (Scalia, J., dissenting).

17 Gerald Neuman argues that the use of international materials in constitutional adjudication has deep historical roots. But all of his examples seem to be (1) interpretations of structural provisions, (2) instances in which domestic rights were denied, or (3) scattered and unexplained recent practice. Gerald, L. Neuman, The Uses of International Law in Constitutional Interpretation, 98 AJIL 82 (2004)Google Scholar. Harold Koh proposes an even more aggressive interpretation of history, suggesting that the Constitution’s framers intended reliance on modern international materials largely on the basis of the Declaration of Independence’s statement of the need to give “a decent respect to the opinions of mankind.” Koh, supra note 7, at 1087 (quoting The Declaration of Independence, para. 1 (1776)); Harold Hongju, Koh, International Law as Part of Our Law, 98 AJIL 43, 44 (2004).Google Scholar What the Declaration has to do with the issue is mystifying. The Declaration does not say anything about the need to conform domestic rights to international views, or indeed anything at all about the persuasive weight of international views. The point of the Declaration is that we should explain our own actions to the world, not that we should be influenced by what the world thought of them. And, in any event, the Declaration obviously does not say anything about how to interpret the Constitution, or about how to interpret texts in general. Professor Koh’s broader invocation of the framers’ interest in international law, see Koh, supra note 7, at 1087-91, is similarly beside the point, since (1) die quoted comments have nothing to do with constitutional interpretation, and (2) the Atkins/Lawrence advocacy, as discussed above, is not properly understood as an appeal to international law.

18 See Wechsler, Herbert, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).Google Scholar As the Court’s plurality put it in Planned Parenthood of Pennsylvania v. Casey, the Court’s legitimacy arises from “making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.” 505 U.S. 833, 866 (1992).

19 See Roger, P. Alford, Misusing International Sources to Interpret the Constitution, 98 AJIL 57, 65–66 (2004)Google Scholar (discussing worldwide state of sodomy laws).

20 For example, the brief cited judicial opinions from Colombia and Ecuador, but no other South American country; it cited judicial opinions from South Africa, but no other African country; it cited practice from Israel, Australia, and New Zealand, but none of the big Asian democracies (e.g., India, Japan, the Philippines). Robinson Brief, supra note 1, at 9-17. There may be a principle (other than friendliness to the claimant’s argument) that explains this selection, but it is not explicit in the brief.

21 To be clear, I am not making any claim about India’s antisodomy practice. I note only that India is a large, democratic, rights-oriented nation whose practice (whatever it is) did not rate a mention in the Robinson brief.

22 Lawrence, 123 S.Ct. at 2483 (citing Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981); Norris v. Ireland, 142 Eur. Ct. H.R. (ser. A) (1988); Modinos v. Cyprus, 259Eur. Ct. H.R. (ser. A) (1993); P.G. & J.H. v. United Kingdom, App. No. 44787/98 (2001). Opinions of the European Court of Human Rights are available online at <http://www.echr.coe.int>.

23 E.g., MCC Marble Ceramic Ctr., Inc. v. Ceramica Nuova D’Agostina, S.p.A., 144 F.3d 1384 (11th Cir. 1998) (CISG); El Allsr. Airlines v. Tseng, 525 U.S. 155 (1999) (Warsaw Convention).

24 This seems to be the thrust of Justice Breyer’s comment, quoted in Alford, supra note 19, at 57, on the prospect of a “global legal enterprise” in constitutional law. Indeed, this view has apparently been blessed by no less a skeptic than Chief Justice Rehnquist. See William, H. Rehnquist, Constitutional Courts—Comparative Remarks (1989), reprinted in pGermany and its Basic Law: Past, Present and Future—A German-American Symposium 411, 412 (Kirchhof, Paul & Donald, P. Kommers eds., 1993)Google Scholar, quoted in Robinson Brief, supra note 1, at 5–6 (“[N]ow that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process.”).

25 Merrills, J. G. & Robinson, A. H., Human Rights in Europe 1–20 (4th ed. 2001).Google Scholar

26 See Dudgeon, 45 Eur. Ct. H.R. (ser. A) paras. 49-52.

27 Washington v. Glucksberg, 521 U.S. 702, 710, 728 (1997).

28 Dudgeon, 45 Eur. Ct. H.R. (ser. A) paras. 48, 51.

29 This idea seems to underlie Gerald Neuman’s suggestion that foreign courts can provide U.S. courts with “normative insight.” Neuman, supra note 17, at 87; cf. Monaghan, Henry, Our Perfect Constitution, 56 N.Y.U. L. Rev. 353, 353–60 (1981)Google Scholar.

30 To the extent that any of the briefs stated an explicit theory of the relevance of international opinion, it was quite problematic. According to the Abramowitz brief, we should be concerned about diplomatic protests—especially by the European Union—over the fate of defendants such as Atkins. Allowing Atkins’s execution, it complained, “will strain diplomatic relations with close American allies, provide diplomatic ammunition to countries with demonstrably worse human rights records, increase U.S. diplomatic isolation, and impair other United States foreign policy interests.” Abramowitz Brief, supra note 1, at 5-6. But even if these impending misfortunes are well-founded (and there is not much way for the Court to assess whether they are), it is surely the province of the political branches, not the courts, to balance harms to diplomatic interests against the benefit of domestic laws and punishments. One does not need to be a great fan of the political question doctrine to realize that this argument is addressed to the wrong branch of government. It is simply not part of our system of government to make the Supreme Court’s decisions on individual rights turn on what is convenient for the Department of State.

31 It is also worth noting that the Court rarely invokes the mere opinions of domestic groups, such as political advocacy organizations, state supreme courts, or (sadly) law professors. We need a theory as to why the moral and philosophical opinions of the international speakers cited are more important than the moral and philosophical opinions of domestic speakers who, though much respected, are not usually relied upon by the Court.

32 E.g., Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 951 (1992) (Rehnquist, C.J., dissenting); Teague v. Lane, 489 U.S. 288, 311 (1989); Wolf v. Colorado, 338 U.S. 25 (1949); Palko v. Connecticut, 302 U.S. 319, 326 (1936).

33 E.g., N.Y. Times v. United States, 403 U.S. 713 (1971).

34 Pennell v. City of San Jose, 485 U.S. 1 (1988); Palmore v. Sidoti, 466 U.S. 429 (1984); United States v. Carolene Prods. Co., 304 U.S. 144 (1938).

35 See Washington v. Glucksberg, 521 U.S. 702, 724 (discussing the Netherlands’ experience with legalized assisted suicide as a way of measuring the state’s interest in forbidding it). As Neuman writes, empirical observation may be preferred to “armchair speculation.” Neuman, supra note 17, at 87.

36 Bowers, 478 U.S. at 196 (Burger, C.J., concurring) (“Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards.”); Lawrence v. State, 41 S.W.3d 349, 361 (Tex. Ct. App. 2001) (finding that private homosexual conduct is not a right “implicit in the concept of ordered liberty” because “Western civilization has a long history of repressing homosexual behavior by state action”).

37 Lawrence, 123 S.Ct. at 2474; see also Robinson Brief, supra note 1, at 5 (suggesting this approach). This does not answer the question whether a modern consensus in support of sodomy laws, if it existed, should have any bearing on constitutional interpretation. But it does show that if Burger and the Texas court thought it did, they had their facts wrong.

38 Lawrence, 123 S.Ct. at 2495 (Scalia, J., dissenting). Similarly, as mentioned above, Scalia claimed in his Atkins dissent that the categorical exclusion of the mentally handicapped from capital punishment will produce hazards of faking. Leaving aside the question whether we should care (for constitutional purposes), Scalia’s prediction may be tested empirically, if we can study the experiences of jurisdictions with the categorical rule.

39 The Robinson brief in Lawrence made some move in this direction, suggesting that in Europe there is a trend away from laws that are purely moral without being grounded in some articulable social benefit. Robinson Brief, supra note 1, at 14-18. As Scalia’s comment indicates, this seems like a promising avenue for comparative study, given the way the constitutional issue is framed in Lawrence. There remains the question whether it matters—but since Scalia apparently thought it does, the claim should be investigated rather than merely asserted.

40 To answer the question posed above, proof that India had a strong antisodomy regime would not undermine this claim, since the claim is that some societies survive without sodomy laws, not that all do.

41 “Potential” because I have not made an empirical inquiry sufficient to support any conclusions about actual practice.

42 See, e.g., Merrills & Robinson, supra note 25, at 172–180. For key European decisions on free speech that may be less protective than U.S. law, see, for example, Zana v. Turkey, 27 Eur. H.R. Rep. 667 (1997); Observer & Guardian v. United Kingdom, 14 Eur. H.R. Rep. 153 (1991); Barfod v. Denmark, 13 Eur. H.R. Rep. 493 (1989).

43 376 U.S. 254, 271-72 (1964) (false statements “must be protected if the freedoms of expression are to have the breathing space that they need . . . to survive”) (internal quotation marks omitted).

44 See generally Bradley, Craig, Criminal Procedure: A Worldwide Study (1999).Google Scholar This might even be the case with the death penalty, where the Court’s Eighth Amendment jurisprudence deploys elaborate protections that may go beyond what other death penalty jurisdictions think necessary. See Atkins, 536 U.S. at 352-53 (Scalia, J., dissenting) (listing cases). Yet Professor Koh’s discussion of the plan to deploy international materials in death penalty litigation makes it appear that this is a one-way enterprise. See Koh, supra note 7, at 1109–29.

45 As Professor Alford suggests, abortion is another area in which U.S. constitutional rights may exceed those guaranteed in international practice. Alford, supra note 19, at 67-68. To put the point most sharply, the Court will likely consider whether recent federal legislation banning late-term abortion violates the due process clause. See Milbank, Dana, Bus h Signs Ban on Late-Term Abortions into Effect; Civil Bights Agency to Enforce Law; Lawsuits Are Filed, Wash. Post, Nov. 6, 2003, at A4.Google Scholar If essentially no other jurisdiction around the world permits the practice in question, should that not bear upon the question whether the right is so “fundamental” as to be protected by our due process clause? Cf. Stenberg v. Carhart, 530 U.S. 914 (2000) (per Breyer, J.) (striking down a state late-term abortion law without any reference to international materials). In mentioning abortion and similar examples, Professor Alford seems to regard it as an argument against using international materials that their use may lead to constricting constitutional rights. I do not see how this conclusion follows, unless one holds the view that more rights are always better. Some claimed rights are simply misguided, and examination of international practice might provide a more principled way to decide which rights are appropriate than does current due process jurisprudence. My point is simply that international materials must be allowed to lead where they may.

46 Atkins, 536 U.S. at 316 n.21; EU Brief, supra note 1, at 4; Abramowitz Brief, supra note 1, at 6.

47 Abramowitz Brief, supra note 1, at 12 n.10 (stating that “the Peoples’ Republic [of China] . . . has reportedly banned the execution of people with mental retardation for centuries”) (citing Davis, Stephen, Note, The Death Penalty and Legal Reform in the PRC, 1 J. Chinese L. 303, 307, 315 (1987)Google Scholar).

48 Davis, supra note 47, at 315 (“Article 44 of the current Criminal Law prohibits capital punishment of pregnant women and children under the age of eighteen. These restrictions constitute the only statutory exemptions from capital punishment based on group affiliation.”). Davis does say that in ancient China there was a categorical exclusion for at least some degree of mental handicap. Id. at 307.

49 It may seem troubling to make domestic U.S. constitutional guarantees turn on what is happening in China. That is a question of whether international materials are relevant in the first place. But once we decide that they are, it seems inappropriate to say, as the Court does, that the “world community” opposes something without investigating the beliefs and practices of the largest member of that community.

50 EU Brief, supra note 1, at 7 (citing United Nations Commission on Crime Prevention and Criminal Justice, Report of the Secretary-General, Capital Punishment and Implementation of the Safeguards Guaranteeing Protection of Those Facing the Death Penalty, UN Doc. E/CN.15/2001/10 [hereinafter Safeguards Study]).

51 Safeguards Study, supra note 50, summary (“Sixty-three countries participated in the survey. There was again a relatively poor response from retentionist countries [i.e., those with a death penalty], especially those with the most use of capital punishment”). The study further notes, in its section discussing safeguards for “[t]he insane and persons suffering from mental retardation,” that “other sources suggest that most, if not all, other countries provide a defence of insanity in capital cases” but makes no remark about the general availability of a defense of mental retardation. Id. at 25, para. 105.

52 The European Union’s only other material source on worldwide practice is a pair of UN reports from the mid-1990s purportedly showing that “since 1995 only three countries are reported to have carried out the execution of a mentally retarded defendant.” EU Brief, supra note 1, at 4 n.3. These reports, written in 1996, relate only to practice in that year, and so do not support the briefs claim regarding practice “since 1995”—i.e., from 1995 to 2002. In any event, surely the question is whether any mentally handicapped defendants have been finally sentenced to death, not whether the execution has actually been carried out, since execution might not have occurred for many unrelated reasons.

53 See Heifer, Laurence, Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes, 102 Colum. L. Rev. 1832 (2002)Google Scholar (discussing legal regimes of capital punishment in the Caribbean); see also Safeguards Study, supra note 50, at 25, para. 105 (noting the lack of examination of the mental health of capital defendants in the Caribbean). I make no suggestion as to what an examination of Caribbean practices would show; my point is only that this is a relatively active and accessible death penalty practice that we could examine.

54 Atkins, 536 U.S. at 316 n.21.

55 The Robinson brief seems less open to criticism on this score, underscoring the importance of modest claims. Unlike Atkins, Lawrence did not involve any claims that all, or even most, international sources supported a repeal of sodomy laws—only that some did.

56 EU Brief, supra note 1, at 11.

57 See, e.g., id. at 7, 15-16 (relying heavily on the statements of Bacre Waly Ndiaye, special rapporteur for the UN Commission on Human Rights).

58 This suggests a corollary guideline: avoid unsupported rhetorical appeals to international law. See, e.g., Koh, supra note 7 (implying that the death penalty raises serious questions under international law without the support of universal practice or any treaty to which the United States is a party).

59 This statement must be further qualified because UN agencies whose personnel serve under at-will appointments by member states to some extent reflect what the governments of those states consider diplomatically convenient 60 Indeed, it is conventional wisdom that the point of a constitutional court in a democratic society is to enforce values that are not the values of the present majority.

61 Perhaps international materials could decide the rational basis issue in Lawrence because the state advanced no rational argument in support of its antisodomy law other than the claim that antisodomy laws were universal. But this will usually not be the case.

62 Even this claim has its difficulties. If China executes the mentally handicapped, one might question the moral force of that fact, because Chinese practice does not necessarily reflect the views of the Chinese people, China not being a democracy. Indeed, this point may sometimes cut against using even the practice of democratic nations. For example, polls suggest that in Europe the death penalty is much more popular among the ordinary population than among elites. See Crime Uncovered, OBSERVER Supp., Apr. 27, 2003 (reporting poll showing 67% in Britain support reintroduction of the death penalty). That might also be true of antisodomy laws, which in some cases in Europe were eliminated by court decree rather than by legislative consent.