Constitutional Rights Coming Home to Roost? Rights Internationalism in American Courts

There is increasing pressure for American courts to accept the decisions of foreign courts and international tribunals as relevant, if not persuasive, authority in interpreting the US Bill of Rights. American courts are accused of being old-fashioned, if not parochial, and of failing to understand and respect international human rights norms. The authors suggest that American courts should be more wary than most when it comes to the decisions of foreign courts and international tribunals. These bodies speak the same language of rights, but they have different understandings of what rights are and how particular rights are to be understood. In addition, many countries have different conceptions of the state and its role, and the role of the courts. The very basics of American constitutionalism are, in significant ways, foreign to many of the countries that have adopted bills of rights. The authors discuss human rights jurisprudence in other countries with bills of rights and under international law, highlighting the features that distinguish that jurisprudence from American law. They consider the leading arguments used to justify the practice of judicial review under bills of rights, and indicate which of those arguments are applicable when the decisions of foreign courts and international tribunals are raised or in some sense relied upon by American courts. Finally, the authors review recent case law from Canada, New Zealand, and the United Kingdom, suggesting what might lie in store if rights internationalism becomes commonplace in American courts. They argue that there is a noticeable ratcheting-up effect in the rights-based jurisprudence of these common law systems as each draws on the most expansive case law of the others