Looking Abroad When Interpreting the U.S. Constitution: Some Reflections

To what extent should those charged with interpreting national constitutions into account the lessons that might be taught by experience? In asking this question, I do not mean to confine myself to the relevance of such legal materials as cases from other courts; there is no reason to confine oneself to such material if one is seriously interested in learning more about comparative approaches to similar problems. Obviously, this is a general problem, and the lawyers, academics, judges, and other public officials concerned about adhering to their duties of constitutional fidelity could be members of any of the more than 150 countries with written constitutions who are considering the possibility of looking to the of any other given country, near or far. I am interested primarily in the advisability of lawyers, academics, and judges from the United States taking cognizance of the structuring and operation of legal institutions in other countries when interpreting the U.S. Constitution. The principal reason is, of course, that this is the system that I know best; a second reason is that the issue is now the subject of an unusually heated debate among justices of the U.S. Supreme Court. (A third reason, provoked by my having decided to co-teach a course at The University of Texas School of Law on comparative constitutional law, is a degree of perplexity as to exactly why we wish to compare constitutions and what we think the practical payoffs, if any, are likely to be.) Let me note at the outset that I am not remotely interested in a decidedly different jurisprudential problem, which is the potential authority of non-U.S. law with regard to the decision of American an authority that could derive from treaties entered into by the United States or, most controversially, from the reception of international law into American law. Whether one should feel bound by international legal norms is an entirely different subject from whether an American judge should merely take into account experience while making decisions about the shape of American constitutional law. One obviously need not believe that there is an obligation to be bound by that experience-indeed, I know of no one who makes such a foolish argument-in order to believe that it is simply prudent practice to become knowledgeable about such and to apply the lessons one finds there to comparable dilemmas facing us here in the United States. In order to set the stage for the debate here in the United States, it is helpful to look at the practices of at least one other American country, just north of us. In an examination of the citation practices of the Supreme Court of Canada, three political scientists note the frequency with which that court has looked to especially following the adoption of the Canadian Charter of Rights in the early 1980s.1 Almost 45% of the 858 cases that were decided between 1984-1995 contained at least one citation to a British case, though some might dispute whether this really counts as a foreign citation, given the particular historical relationship of Canada to the United Kingdom.2 Consider, then, that 30% had at least one citation to a U.S. case, with 58% of these U.S. citations being to cases decided after 1970.3 This suggests, among other things, an interest in how such courts are confronting similar problems at present. (Another 18% of the citations were to cases decided between 1950-1970; only 24% were to old cases, including presumably classic chestnuts of American constitutional law.)4 Citations per se obviously provide only limited, albeit suggestive, information. Consider, then, two representative comments from Canadian judges. In a concurring opinion in a case involving self-incrimination and right-to-counsel claims by someone charged with child molestation and sexual assault, Justice L'Heureux-Dube wrote that . . . …

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