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Siegel, N --- "Some Modest Uses of Transnational Legal Perspectives in First-year Constitutional Law" [2007] LegEdDig 28; (2007) 15(2) Legal Education Digest 27

Some Modest Uses of Transnational Legal Perspectives in First-year Constitutional Law

N Siegel

[2007] LegEdDig 28; (2007) 15(2) Legal Education Digest 27

56 J Legal Educ, 2006, pp 201–215

Comparing constitutional practices in the United States with those elsewhere gives students the sense that the American constitutional structure is neither inevitable nor necessarily best. Such comparisons can stimulate discussions about which approaches to constitutional questions are most desirable in particular institutional and cultural contexts, and can also encourage students to question why one approach was adopted in the United States but not another. In making such comparisons to other nations, students gain a sense of the great extent to which constitutional provisions are a product of the time, circumstances, and culture in which they are adopted.

In the area of separation of powers, I draw from foreign legal experience in teaching Marbury v Madison and judicial review. In my experience, many students come to law school believing that U.S.-style judicial supremacy is a logical entailment of a written constitution that imposes meaningful limits on the exercise of government power. Alexander Hamilton’s defence of judicial review in Federalist 78 and Chief Justice Marshall’s reasoning in Marbury v Madison solidify — and may be partly responsible for — this impression. I have found that I can motivate students to think critically about the functional advisability of judicial supremacy, as opposed to its self-evident inevitability or logical necessity, by stressing that few other democracies in the world have high courts with as much authority to resolve constitutional questions as the U.S. Supreme Court.

To be sure, use of transnational perspectives is not essential if one wants to encourage students to question U.S.-style judicial review. One could simply interrogate Alexander Hamilton’s and Chief Justice Marshall’s reasoning — and that of the students who endorse it reflexively. Both Hamilton and the great Chief Justice beg the question of who decides whether a particular government action comports with the Constitution when the legislature and the courts disagree on this question. Neither explains why his reasoning does not apply with equal force when the U.S. Supreme Court decides the scope of its own power — as in Marbury itself, when the Court declared that it possessed the awesome power of judicial review.

But the transnational dimension constitutes a useful supplement to rigorous analysis of foundational reasoning. Exposure to the practices of other nations tends to free students up to think critically about American institutions. The idea that ‘it couldn’t be otherwise’ becomes more difficult to sustain if, in fact, it is otherwise elsewhere.

One might question the need to look abroad if the purpose is to unsettle the normative power of the actual in the minds of students. One could also look back, using U.S. constitutional history as a source of comparisons. For much of the existence of the United States as a nation, for example, the Supreme Court was not nearly as powerful an institution as it is today.

History plays an important role in a constitutional law course. But transnational perspectives and historical comparisons are not mutually exclusive alternatives. And the key point for my current purposes is that transnational outlooks can sometimes unsettle the preconceptions of students more effectively than U.S. history can.

There is another reason why transnational outlooks can prove more effective than U.S. history in unsettling the preconceptions of students. Looking to American history can be of limited usefulness in reaching students who identify certain structural arrangements with particular ideological commitments. Switching venues to, say, the European Union, can depoliticise the issue, facilitating a functional, normative analysis of the various potential roles of states in a federal system.

When my course turns to federalism, I compare the U.S. Supreme Court’s view of commandeering with that of the European Union and Germany. The general view of member states of the European Union on commandeering is the opposite of the U.S. Supreme Court’s position: member states tend to prefer directives, which ‘command a Member State to regulate in a particular area and thus require further Member State legislative action to become fully effective within that state,’ to regulations, which ‘have immediate legal force for individuals within a Member State.’ Among other things, the general European judgment is that directives leave member states with more regulatory power.

Dabbling in comparative law by contrasting legal regimes briefly and at a high level of abstraction does not position Justices, let alone students, to offer definitive conclusions about the wisdom of current Tenth Amendment doctrine. Justice Breyer rightly recognised that ‘we are interpreting our own Constitution, and not those of other nations, and there may be relevant political and structural differences between their systems and our own.

The political safeguards of federalism are more present in Europe than they are here.

Moreover, the directive in European Union law (1) refers only to commandeered legislation, not to executive action, as was at issue in Printz; (2) is specifically provided for in the European Union Treaty; (3) is the only available instrument in some areas; and (4) is partly justified by the very different doctrinal structures that characterise the legal regimes of member states.

Accordingly, there exists a stronger textual basis for legislative commandeering in the European Union than in the United States and a greater need for state-level flexibility.

Turning from constitutional structure to individual rights, I ask my students to consider the fact that many European countries restrict access to abortion to a much greater extent than the U.S. Supreme Court has allowed to date, yet these communities provide more explicit and robust protection of other privacy rights. Germans, for instance, enjoy protection of personal ‘dignity’ (Article 1) and the ‘right to the free development of...personality’ (Article 2), together with provisions protecting the ‘[p]rivacy of letters, posts, and telecommunications’ (Article 10) and the ‘[i]nviolability of the home’ (Article 13), in their Constitution. This is a more extensive right to privacy than Americans possess, particularly because the right has been used to protect personal data and privacy from invasions by the press and market.

The point of the example is not to suggest any inconsistency within the European view. Rather, the purpose is to underscore a strong contrast with U.S. constitutional law. This contrast encourages U.S. students to consider whether cases like Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey necessarily follow from a broad conception of privacy rights, or whether the government’s interest in protecting a fetus suffices to distinguish the abortion question from other privacy issues of constitutional moment. To facilitate this discussion, I inform my students that the West German Constitutional Court declared unconstitutional a statute protecting abortion rights around the same time as Roe.

In addition, the abortion comparison helps to clear the ideological air by illustrating that appeals to transnational legal perspectives can be used to advance both liberal and conservative constitutional commitments.

Beyond serving as fodder for comparisons to legal practices in other countries, transnational perspectives also inform my teaching of judicial decisions in the ‘war on terror.’ In covering cases like Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, which implicate questions of statutory interpretation in addition to constitutional law, I expose my students to some of the international law of war and the Geneva Conventions.

One cannot successfully teach these cases without exposing students to the relevant federal statutes, Geneva Convention provisions, and military regulations implementing them.

Not only is international law important in U.S. constitutional litigation, but the experiences of other nations in dealing with terrorism are also relevant in evaluating the strength of the interests asserted by the government in court. The United States is less experienced at confronting issues involving the detention and interrogation of terror suspects than is, for example, the United Kingdom and Israel. The United States is thus more appropriately situated to learn the lessons of their history, rather than the other way around. And with some such exposure to the trials, tribulations, and resulting policies of other nations, law students are better able to evaluate the Executive Branch’s current claims of national security and military necessity.

Finally, the debate among the Justices themselves regarding the citation of foreign legal sources, both in their opinions and beyond, has made it important to consider the relevance of transnational legal perspectives in teaching foundational issues of constitutional authority and interpretation. Among other questions, I address the following points with my students when covering various approaches to reading the Constitution. It is not clear what independent work, if any, the majority’s invocations of foreign legal authority are doing in the majority opinions in Atkins v. Virginia, Lawrence v. Texas, and Roper v. Simmons. In Roper, for example, Justice Kennedy explained for the Court that ‘[i]t is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty,’ and that ‘[t]he opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.’ He added that ‘[i]t does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.’ It is unclear whether Justice Kennedy is implying that the opinion of the world community could also disconfirm a constitutional conclusion that the Court would otherwise accept. It is also not clear why the Court seems to invoke foreign legal authority selectively — that is, regarding only certain legal questions and from only certain countries. One might further query why the same transnational comparisons do not ‘simply underscore[]’ how We the People are different from the rest of the world — that is, how America’s ‘present day self-definition and national identity’ compel distinct resolutions of similar legal problems.

At the same time, those who criticise the Court’s citations to foreign legal authority in Atkins, Lawrence, and Roper may not have persuasively explained why their objections do not apply with similar force when the Justices cite law review articles, the Bible, or even lower court decisions. All are employed as forms of persuasive authority, nothing more. It may be a stretch to distinguish foreign judicial decisions from other sources by suggesting that reliance on decisions from non-American courts will facilitate ‘judicial activism’ and ‘making it up’ in ways that the other sources cannot.

There is rich material here for class discussions about the legitimacy of the Court’s uses of non-U.S. law in deciding controversial constitutional cases.

To what extent does the authority of the Constitution as ethos — as an evolving instantiation of collective identity — encompass not just a consensus on contemporary American values, but on values of the world as well? Why should or should not ‘[t]he opinion of the world community’ provide a criterion for constitutional judgment? Whatever one’s answer to these questions, transnational legal perspectives facilitate their formulation. By asking such questions to my students, I focus their attention on the nature and legitimate scope of the U.S. Supreme Court’s exercise of judicial review in constitutional cases.

For the reasons explored above, I believe it is important to expose students in my introductory course in U.S. constitutional law to transnational legal perspectives. Indeed, I respectfully appeal to casebook authors to include more transnational material so that instructors are better able to teach it. I also think it is important, however, not to overstate the case for transnational perspectives in teaching a first-year course in constitutional law. Although I support the general enterprise, I avoid comprehensive transnational comparisons in class, just as I have resisted claims of pedagogical necessity in this essay. In my judgment, a first-year course in U.S. constitutional law appropriately focuses on the U.S. Supreme Court’s exercise of judicial review in constitutional cases, as well as on the constitutionally relevant conduct of other federal and state officials. The transnational dimension, in other words, constitutes a relatively minor part of my overall course.

Of course, times change and so does the content of U.S. constitutional law. Transnational perspectives arguably matter more today than in times past. Globalisation continues to make the world a smaller place, the U.S. Supreme Court confronts the legal limits of presidential power in the ‘war on terror,’ and the Justices themselves are invoking (or criticising invocations of) foreign legal authority.

But in a survey course in U.S. constitutional law, class time remains a scarce resource and coverage tradeoffs must be negotiated with discipline. Moreover, U.S. constitutional law is a difficult subject for beginning law students to master when studied on its own terms. Routinely adding other legal systems to the course discussion can cultivate confusion, not clarity. Finally, and most importantly, teachers who are not comparative constitutional lawyers must confront the daunting reality that it is difficult to construct transnational examples that are both intellectually serious and pedagogically tractable. One must proceed with care, lest a little knowledge become a dangerous thing and one’s students conclude that they are competent to make useful comparisons without serious study of other legal systems and comparative constitutional law. I therefore suggest that transnational legal perspectives are best cast in a modest, supporting role in introductory courses in constitutional law.

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