INTERNATIONAL MATERIALS AND DOMESTIC RIGHTS: REFLECTIONS ON ATKINS AND LAWRENCE

摘要

In two recent cases-Atkins v. Virginia and Lawrence v. Texas-amicus briefs urged the U.S. Supreme Court to use international materials to expand the scope of domestic constitutional rights. In a footnote in Atkins and three paragraphs in Lawrence, the Court may have signaled a willingness to listen. Some applaud the beginning of a positive trend. Others-notably Justice Antonin Scalia in dissent in the two cases-condemn the entire project as illegitimate. Rather than seeking an immediate answer to the question whether international materials should be determinative of domestic rights, this essay makes an indirect approach by asking: if we are to undertake a serious project of using international materials in this way, what would that project look like? Identifying the nature of the project may suggest whether it is the sort of thing we want to undertake, and what the scope of its impact is likely to be.