Yitzchok Segal


The appropriateness of using foreign and international law in interpreting the U.S. Constitution has spawned passionate rhetoric and an ever-growing body of literature. Yet, the Supreme Court’s use of foreign and international law in interpreting the Constitution is not itself revolutionary, as the Court has freely drawn on supranational law throughout history. It is not the Court’s mere use of comparative legal sources that has sparked the recent debate, it is the context of these references. The Court has recently cited foreign and international law to support key positions in high-profile cases dealing with hyper-sensitive domestic issues, including the death penalty. This Comment examines the role that foreign and international law has played in the Court’s death penalty cases. The author argues that foreign and international law have been peripheral to the Court’s death penalty decisions and demonstrates that in capital punishment jurisprudence, comparative materials function, if at all, merely as a minor consideration in a multifaceted analysis. It further argues that the Court develops, adopts, and sustains a “national consensus” analytical paradigm in its death penalty decisions and that this calculated paradigm severely constrains the judicial impact of these comparative materials. Finally, this Comment concludes that that the judicial impact of foreign and international law on the Court has been exceptionally limited in all jurisprudential areas.