American University Law Review Volume 56 | Issue 3 Article 3 2007 Comparative Constitutional Advocacy Mark C. Rahdert Temple University Beasley School of Law, [email protected] Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Constitutional Law Commons Recommended Citation Radhert, Mark C. “Comparative Constitutional Advocacy.” American University Law Review 56, no. 3 (February 2007): 553-665. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Comparative Constitutional Advocacy Abstract When the Supreme Court handed down its decision in Roper v. Simmons, a longstanding debate about comparative analysis in constitutional cases came to national prominence. In Roper the Court relied in part on comparative precedent in ruling that the execution of juvenile offenders violates the Eighth Amendment's proscription against cruel and unusual punishment. This look beyond our borders earned the Supreme Court both accolades and scathing criticism. This article comprehensively evaluates the place of comparative analysis in our constitutional jurisprudence. It discusses and adds to the arguments in support of comparative constitutional advocacy offered by several leading scholars, and responds to arguments against the practice, including many that figured in the confirmation hearings for Chief Justice John Roberts and Associate Justice Samuel Alito. The ra ticle identifies several catalysts that have driven comparative constitutionalism to the fore, including the exponential growth of foreign constitutional precedent, the similarity of constitutional issues worldwide, shared analytic methods among jurists, and increased availability of foreign materials. Also supporting the appropriateness of comparative analysis are increasing globalization, international judicial interaction, constitutional convergence, and the growing sophistication of foreign constitutional courts. Countering these factors are the U.S. Supreme Court's tradition of separateness, a longstanding view of our own constitutional uniqueness, America's head start in constitutionalism, and the persistence of insularity and exceptionalism in American legal education. Comparative analysis is only worthwhile if it confers unique benefits not va ailable from domestic law that justify the added challenges of identifying and contextualizing foreign constitutional law. On the benefits side of this formula are satisfaction of constitutional curiosity, shared institutional responsibility among jurists, and increased opportunities for constitutional dialogue. Further, by looking to decisions of foreign courts, U.S. jurists can identify rules that work elsewhere and consider their application here, as well as reject rules that have either proven detrimental elsewhere or clearly would do so here. Considering the opinions of foreign courts also exposes U.S. jurists to ideas uninfluenced by American political landscape, gives jurists the opportunity to return to first principles, and allows them opportunities for judicial cross-fertilization. The ra ticle evaluates and rejects claims against comparative constitutional analysis that stem from conceptualization of the US Constitution as a social contract, reliance on original intention, or assertions that reliance on foreign precedent unconstitutionally delegates decision making and interferes with separation of powers. The ra ticle accepts some limits on use of foreign precedent based on American exceptionalism but argues that these concerns go to the weight of foreign precedent, not its admissibility. The ainm challenges inherent in comparative constitutional advocacy, however, stem primarily from U.S. lawyers' and judges' lack of expertise with foreign materials. Many advocates and jurists are not sufficiently familiar with foreign jurisdictions to ensure that materials selected are sufficiently similar and relevant to the case at hand. Adding to the challenge are obvious language and access barriers. Despite these challenges, comparative constitutional advocacy is worth the candle, although the article argues for several significant changes in legal education to give American lawyers more skill in using foreign materials. The exercise of looking beyond our borders for insight into constitutional issues should begin in law school and become a norm in constitutional advocacy. This article is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol56/iss3/3 Keywords Comparative constitutionalism, Foreign precedent, Judicial interaction, Globalization, Roper v. Simmons, Lawrence v. Texas, Insularity, Exceptionalism, Original intention, Constitutional advocacy, Legal education, Judicial cross-fertilization, Constitutional convergence This article is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol56/iss3/3 RAHDERT.OFFTOPRINTER 1/30/2007 12:44:23 PM COMPARATIVE CONSTITUTIONAL ADVOCACY ∗ MARK C. RAHDERT TABLE OF CONTENTS Introduction.........................................................................................554 I. Catalysts for the Comparative Constitutional Debate...............561 A. External Factors....................................................................561 1. Growth of foreign Constitutional precedent...................562 2. Similarity of issues.............................................................564 3. Analytic methods ..............................................................568 4. Availability .........................................................................570 B. Internal Factors.....................................................................571 C. The Terms of the Present Debate .......................................575 II. The American Tradition of Constitutional Insularity...............589 A. Tradition of Separateness ....................................................590 B. Constitutional Uniqueness...................................................592 C. A Constitutional Head Start.................................................595 D. Insularity and Exceptionalism in American Legal Education..............................................................................597 III. Prospects for Change ..................................................................602 A. Globalization and its Constitutional Implications ..............602 B. International Judicial Interaction........................................607 C. Constitutional Convergence ................................................608 D. Relative Sophistication: A Shift in the Constitutional Learning Curve ....................................................................611 IV. The Merits of Comparative Constitutional Analysis ..................614 A. The Benefits of Comparative Constitutional Reasoning .....614 1. Constitutional curiosity ....................................................614 2. Shared institutional responsibility. ..................................615 ∗ A.B. 1974, Harvard College; J.D. 1978, Yale Law School. Professor of Law, Temple University Beasley School of Law. The author wishes to thank Dana Becker and Emily Simpson for their outstanding research assistance, and to thank Dean Robert Reinstein and Temple University Beasley School of Law for their generous research support. 553 RAHDERT.OFFTOPRINTER 1/30/2007 12:44:23 PM 554 AMERICAN UNIVERSITY LAW REVIEW [Vol. 56:3 3. Opportunities for constitutional dialogue ......................620 4. Rule rejection and rule alignment...................................624 5. De-politicization................................................................627 6. Return to first principles ..................................................629 7. Judicial cross-fertilization .................................................632 B. “Factors Counseling Hesitation”...........................................635 1. Relevance ..........................................................................635 2. Contextual difficulties ......................................................649 3. Informational demands....................................................653 4. Language and access barriers...........................................654 C. Evaluation: Is Comparative Constitutionalism Worth the Candle?...................................................................................655 D. The Best Uses of Comparative Constitutional Precedent ...656 1. Results................................................................................656 2. Administrability.................................................................656 3. Impact on governmental institutions. .............................657 4. How horrible the parade? How slippery the slope? ........658 V. Implementing Comparative Constitutional Analysis: The Importance of Advocacy and the Role of Legal Education......659 Conclusion .......................................................................................... 665 INTRODUCTION In January 2005, Justices Stephen Breyer and Antonin Scalia of the U.S. Supreme Court engaged in a highly publicized “conversation” before an audience at American University’s Washington