AutorToni Jaeger-Fine
Ocupação do AutorFordham Law School
Toni Jaeger-Fine
Fordham Law School
It is for me an enormous honor and pleasure to write this
essay for Multinational Constitutionalism: Persuasive Use of Foreign
Jurisprudence by Constitutional Courts by Guilherme Peña de Moraes.
The topic is one that interests me greatly and its author is a dear friend
and greatly admired colleague.
The issue of whether and to what extent constitutional or
other high courts may or should consider precedent issued by their
coordinate courts in foreign jurisdiction is not a new topic, but it is
an area of inquiry that in recent years has taken on great currency
in the United States and elsewhere. Professor Peña de Moraes’ book
offers a theoretical framework for discussing the subject followed by a
presentation of the varied views of scholars relating to this important
subject. Multinational Constitutionalism then goes on to provide
an exhaustive review of the treatment of foreign jurisprudence by
constitutional courts around the world. It is to my knowledge the
most comprehensive coverage of the subject in the literature to date.
At the outset, it is important to state what the topic is, and what
it is not. Multinational Constitutionalism: Persuasive Use of Foreign
Jurisprudence by Constitutional Courts does not deal with the issue of
courts applying foreign or international law when the interpretation
and application of another state’s law or international treaties are
properly presented before a court. In these days of globalization, it is
not unusual for a court to have to apply foreign or international law
to cases before it; this is a relatively longstanding and well-accepted
The issue of multinational constitutionalism also does not
make the case that constitutional norms adopted in other states are
mandatory or binding precedent in other nations. There would be
few if any who argue that constitutional decisions are controlling
for other courts. As U.S. Justice Ruth Bader Ginsburg has explained,
“[i]n one sense, we use foreign decisions … as an ornament. Foreign
decisions do not bind our court.”1 What is at stake is the extent to
which a court may or should, within its sound discretion, refer to
constitutional decisions of sister high courts to help it evaluate thorny
constitutional questions. Indeed, in this respect, foreign sources of
law are much like other non-binding persuasive sources (decisions
of courts in other jurisdictions or at lower levels of the hierarchy,
law review articles, and books, to name a few) to which common law
courts refer regularly in making decisions in cases in which there is
no controlling authority.2 Indeed, common law reasoning “is often
based on analogies, providing jurists and lawyers with training in
how to examine conf‌licting approaches and sort out what is most
relevant and persuasive”.3
The most interesting debate in the modern era in the United
States on this topic centers around three cases decided by the Supreme
Court early in the century: Atkins v. Virginia (2002), Lawrence v. Texas
(2003), and Roper v. Simmons (2005) (all discussed in Professor Peña
de Moraes’ book). The decisions in these cases, as well as the reaction
they prompted in the academe, the popular press, and even Congress,
in many ways ref‌lects the various facets and positions of this debate.
Atkins v. Virginia (2002)
In Atkins v. Virginia,4 the issue presented to the Court was whether
the Eighth Amendment’s ban on “cruel and unusual punishments”
barred the imposition of the death penalty on a mentally retarded
offender. The Court, by a 6-3 majority, held that such executions
were prohibited by the Constitution.
1. Ruth Bader Ginsburg, Comments, Symposium: To What Extent Should the Interpretation
and Application of Provisions of the U.S. Constitution be Informed by Rulings of Foreign
and International Tribunals, 26 U. Haw. L. Rev. 335, 335 (2004).
2. See Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001).
3. Vicki Jackson, Yes Please, I’d Love to Talk With You, Legal Affairs (July/August 2004),
available at g/issues/July-August-2004/feature_jackson_
4. 536 U.S. 304 (2002).

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