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Proper Consideration of International Case Law

Below the radar in yesterday's news coverage was a proper discussion of international case law in a Supreme Court opinion by Justice Kennedy.

No, not Graham v. Florida. The case was Abbott v. Abbott, and it involved a treaty, the International Child Abduction Remedies Act. When interpreting a treaty, the opinions of courts in other countries interpreting the same document are certainly a proper part of the discussion.

This Court's conclusion that ne exeat rights are rights of custody is further informed by the views of other contracting states. In interpreting any treaty, "[t]he 'opinions of our sister signatories' . . . are 'entitled to considerable weight.'" El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U. S. 155, 176 (1999) (quoting Air France v. Saks, 470 U. S. 392, 404 (1985)). The principle applies with special force here, for Congress has directed that "uniform international interpretation of the Convention" is part of the Convention's framework. See ยง11601(b)(3)(B).
On the other hand, when interpreting the Eighth Amendment to the Constitution of the United States, the recent* opinions of courts of other countries have no conceivable relevance to what the Supreme Court is supposed to be doing. Let us assume that "cruel and unusual" may mean something different than it meant in 1791. The same Congress that proposed the Eighth Amendment also prescribed whipping, and that is certainly unusual in America today. Even so, those words must have reference to American social mores. What Europe thinks is utterly irrelevant.

* I hedge with "recent" because British opinions before or around the time of the Founding are highly relevant to understanding the common law background of constitutional provisions. British courts are not foreign courts up through July 4, 1776. For several decades after that date, they are foreign courts, but their opinions illuminate the legal foundation on which the Constitution was constructed.

BTW, I express no opinion on whether the majority or dissent is correct in Abbott. I know nothing about the field.


"BTW, I express no opinion on whether the majority or dissent is correct in Abbott. I know nothing about the field."

To the extent final equals correct the majority is.

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