Transnationalizing Public Law

Abstract

I am tasked today with talking about transnationalization, in particular the question of whether public law in the United States is undergoing some process of transnationalization today. My response, based on the work of the U.S. Supreme Court is yes, although probably only in a thin sense. The starting point for discussing this issue is generally the Supreme Court's citation to the laws of other countries in Printz v. United States, Roper v. Simmons, and Lawrence v. Texas. But these examples of comparative public law are controversial, substantively weak in the case of Printz, and relatively case (or issue) specific. It is somewhat unclear how significant the comparative aspects of the opinion were to the holding. Serious problems arise, moreover, in deciding which countries serve as useful benchmarks for comparison. My guess - and it is only that - is that we won't see the U.S. Supreme Court moving much further in this direction. There is, however, another form of transnationalization that is part of the Court's broader engagement with war and with international law over the half decade or so. In cases like Sosa v. Alvarez-Machain, Boumediene v. Bush, Sanchez-Llamas v. Oregon, and Medellin v. Texas, the Court has engaged with the domestic legal systems of other countries. But this engagement has been thin in three ways. First, the discussions of transnational law have been short and sometimes cursory. Second, by and large (with the exception of Boumediene), this engagement with foreign legal systems is driven by questions of international law, rather than domestic constitutional law. Finally, it is Congress, at one level or another, that forced the Court's engagement with international law in the first place. So, while I do think these are important examples of transnationalism, they provide no clear path toward an expansive use of comparative materials in constitutional law generally.