International Law and Rehnquist-Era Reversals

29 Pages Posted: 11 Dec 2006

See all articles by Diane Marie Amann

Diane Marie Amann

University of Georgia School of Law


In the last years of Chief Justice Rehnquist's tenure, the Supreme Court held that due process bars criminal prosecution of same-sex intimacy and that it is cruel and unusual to execute mentally retarded persons or juveniles. Each of the later decisions not only overruled precedents set earlier in Rehnquist's tenure, but also consulted international law as an aid to construing the U.S. Constitution. Analyzing that phenomenon, the article first discusses the underlying cases, then traces the role that international law played in Atkins, Lawrence, and Simmons. It next examines backlash to consultation, and demonstrates that critics tended to overlook the Court's longstanding tradition of consulting external norms. The article gives the interpretive practice qualified approval. Thus it calls upon Justices both to articulate when it is appropriate to look to external sources and to set forth a framework for consultation. At a minimum, foreign jurisprudence ought to shed the light of experience on issues like those in the case before the Court; it must arise out of a legal culture that shares with the United States a commitment to fundamental rights; and the way in which the jurisprudence influenced the Court must be set forth in a reasoned explanation. Whether the Court would pursue such a path remained uncertain, however, as the era of the new Chief Justice began.

Keywords: International, Transnational & Comparative Criminal Law; international law, comparative law, criminal law, public international law, constitutional law, federal courts

JEL Classification: K10, K14, K19, K33, K39

Suggested Citation

Amann, Diane Marie, International Law and Rehnquist-Era Reversals. Georgetown Law Journal, Vol. 94, p. 1319, 2006, University of California, Davis, Legal Studies Research Paper No. 94, Available at SSRN:

Diane Marie Amann (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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