Friday, November 04, 2005

Roper v. Simmons and Our Constitution in International Equipoise

For those of you interested in constitutional comparativism, my latest article, Roper v. Simmons and Our Constitution in International Equipoise, 53 UCLA L. Rev. 1 (2005) was just published and is now available on SSRN here. It essentially is a postscript to my earlier (and much longer) article, In Search of a Theory for Constitutional Comparativism, 52 UCLA L. Rev. 639 (2005), available on SSRN here.

The latest article makes two essential points. First, it argues that the Supreme Court in Roper is moving away from a majoritarian paradigm in Eighth Amendment jurisprudence to a natural law approach, with all the attendant problems associated therewith. I argue that:
“The Court's references to comparative experiences are best understood as objective signposts in the Court's search for constitutional limits grounded in natural law…. If Glucksberg defines the objective limitations on substantive due process, Roper defines the objective limitations on cruel and unusual punishment. It prohibits excessive sanctions based on the "objective indicia of [a national] consensus" confirmed by "fundamental rights" affirmed by "other nations."… The difference of course is that Glucksberg looks backward and inward, while Roper looks forward and outward….Roper's benchmark for natural law is the shifting current of the enlightened present, not the abiding wisdom of the blinkered past. What gives one pause about Roper is that it is unclear whether the objective indicators proffered impose any significant limitations on the Court. Objectivism is invoked, but it has no purchase.”

Second, it more broadly suggests that the Court in Roper may be expressing a willingness to distribute international values liberally throughout our constitutional jurisprudence to ensure foreign and and domestic equilibrium. As Justice Ginsburg put it at the ASIL annual meeting this spring, comparative experiences are indicators of "common denominators of basic fairness governing relationships between the governors and the governed." Thus, Roper may signal a new methodology, one of "international equipoise." If so, then the consequences may be quite significant:

"Plotting constitutional rights based on their international disequilibrium shows how this new interpretive medium offers something for everyone. Social conservatives no doubt will be intrigued by an interpretive device that undermines Roe v. Wade, chips away at the wall of separation between church and state, and offers only halting support for gay marriage. Libertarians will welcome an approach that makes greater room for personal choice on issues such as polygamy, euthanasia, and property rights. Law and order conservatives will welcome a rethinking of the exclusionary rule, the need for a Miranda warning, and the freedoms we grant neo-Nazis to spread their hate. Plaintiffs' lawyers will delight in possible new causes of action for defamation, while defendants will thrill at a curtailment on tag jurisdiction. Liberals will embrace the abolition of the death penalty, enhanced protections for welfare and education rights, greater limits on associational rights to discriminate, and firm support for gun control. A constitution in international equipoise has the potential to become a great political anodyne, offering soothing hope for past constitutional failures. Virtually every group can benefit from robust constitutional comparativism. But, of course, it also risks becoming a great political irritant, upsetting settled expectations of constitutional doctrine. Virtually every group can lose from constitutional comparativism, although at present its patrons are from the left as the protesters howl from the right. But if Roper portends the loss of Roe, the left will rue this day."
I conclude on a note of caution, contending that although the Court in Roper is confident that comparative references do not lessen fidelity to the Constitution, it is by no means certain that others share this confidence. This is no small matter, for as Richard Fallon has admonished, "a crucial aim of constitutional theorizing is to identify interpretive principles that others can reasonably be asked to accept."

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