I, International Impact of Court Decisions.
Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman
Edited By: Kermit L. Hall
International Impact of Court Decisions.
*Marbury v. Madison (1803) held that the power of a court to say what the Constitution means was implicit in an independent judiciary. This power of *judicial review was a unique feature of American constitutionalism well into the twentieth century. The perceived success of this experiment prompted several nations emerging from the ruins of *World War II to include explicit provisions for courts of judicial review in their new constitutions. By the end of the century, almost every constitutional democracy in the world had adopted judicial review in one form or another. In explicit recognition of the American tradition of judicial review, many nations conferred this power on special constitutional courts. But several common law countries, following the American model, empowered all judges to decide constitutional issues subject to final review by their highest appellate courts. Among the world’s most notable constitutional tribunals, apart from the United States Supreme Court, are the constitutional courts of Germany, Italy, Hungary, and South Africa, along with the highest appellate courts of countries such as Canada, India, Australia, and Japan.
In the beginning, as fledgling institutions, these courts had few if any precedents to look to when interpreting their constitutions. It was only natural, then, that many of them would turn to the American experience for guidance in shaping their own law. As Aharon Barak, president of Israel’s Supreme Court, said in 2003, “We foreign jurists all look to developments in the United States as a source of inspiration.” The constitutional case law of Canada, Australia, India, South Africa, and other national high courts is studded with references to American judicial precedents, especially in the areas of speech, press, association, and criminal procedure. *New York Times Co. v. Sullivan (1964)—a free speech decision—is just one example of an important case that has received substantial attention in nearly all these courts. Even when such decisions are not cited, foreign courts often employ terminology clearly borrowed from American case law; they have also borrowed heavily from the rhetoric of liberty found in the judicial dissents of justices like Louis *Brandeis, Oliver Wendell *Holmes, Earl *Warren, and William *Brennan. The fierce independence associated with the exercise of judicial review by these and other justices has served as a model of constitutional justice around the world.
Yet the impact of the Supreme Court on the development of foreign constitutional law has been limited. Over the years, foreign high courts have produced important precedents of their own, especially in the area of rights and liberties, even rivaling—and sometimes upstaging—the Supreme Court. These courts continue to cite American constitutional decisions while developing bodies of law steeped in their own legal cultures and political traditions. They share—and imitate—the American language of rights but often speak in different accents when defining concepts such as liberty, democracy, and human dignity. Like the pitch of a musical score, these accents attune themselves to the distinctive notes of given political cultures or constitutional texts.
The South African and Hungarian constitutional courts, for example, after engaging—even quarreling with—the Supreme Court’s reasoning in *Gregg v. Georgia (1976) and related cases, held that the death penalty constituted inhuman and degrading treatment in violation of the principle of human dignity. (In Soering v. United Kingdom, 1989, the European Court of Human Rights came to a like conclusion after its analysis of the death-row phenomenon in Virginia.) Similarly, in several homosexual sodomy cases, several foreign tribunals, including the European Court of Human Rights, declined to follow the lead of *Bowers v. Hardwick (1972). But then in 2003, when *Lawrence v. Texas overruled Bowers, the majority opinion, written by Justice Anthony *Kennedy, cited several decisions of the European Court of Human Rights in support of its holding that criminal sodomy laws were unconstitutional.
(p. 503) These references to the European Court’s decisions drew scathing remarks from Justice Antonin *Scalia who opined, along with Chief Justice William *Rehnquist, that they were totally irrelevant to American constitutional interpretation. Although some justices have cited foreign constitutional decisions in several death penalty, *equal protection, and *federalism cases, the Court overall has tended to separate itself from the growing transnational universe of constitutional law. Claire L’Heureuz-Dube, a former justice of Canada’s Supreme Court, recently lamented “the failure of the [Rehnquist] Court to take part in the international dialogue among the courts of the world.”
L’Heureuz-Dube’s view is interesting in light of the Canadian Supreme Court’s heavy reliance on the United States in its interpretation of the 1982 Charter of Rights and Freedoms. There is of course far more convergence than divergence in the constitutional jurisprudence of these two countries, where common values prevail. Still, as Canada’s high court continues to examine comparable American cases, often admiringly, it has declined to accept their doctrinal holdings in areas such as defamatory speech, *obscenity, *affirmative action, legislative apportionment, and church-state relations. The Canadian decisions lack the sharp individualistic edge of American *First Amendment and equal protection jurisprudence. As the Canadian court observed in Regina v. Keegstra (1990)—contesting a law punishing forms of *hate speech—“[i]t is only common sense to recognize that, just as similarities will justify borrowing from the American experience, differences may require that Canada’s constitutional vision depart from that endorsed in the United States.”
Tim Koopmans, Courts and Political Institutions: A Comparative View (2003). Gerard V. La Forest, “The Use of American Precedents in Canadian Courts,” Maine Law Review 46 (1994): 211–220. Alexander Somek, “The Deadweight of Formulae: What Might Have Been the Second Germanization of American Equal Protection Review,” University of Pennsylvania Journal of Constitutional Law 1 (1998): 284–324.
Donald P. Kommers