International Consensus as Persuasive Authority in the Eighth Amendment

58 Pages Posted: 28 Jan 2007 Last revised: 23 Oct 2007

See all articles by Youngjae Lee

Youngjae Lee

Fordham University School of Law


This Article is about the epistemic significance of international consensus on constitutional interpretation in the Eighth Amendment context. First, the Article examines whether meaningful conclusions about one's desert judgments can be reached through a process of interjurisdictional comparison that focuses on the existence of a consensus on the question of what punishment is appropriate for what crimes and criminals. Second, this Article examines the relevance of international consensus on penal practices by analogizing the consensus to three different types of consensus: scientific, aesthetic, and moral. This Article concludes from this discussion that so long as the Supreme Court stays with what this Article calls the norm-centric analysis in consulting foreign sources, the existence of an international consensus on a penal practice should not lead us to lean one way or the other about its constitutionality under the Eighth Amendment. This Article then argues that the Court, given its judicial minimalist tendencies, is unlikely to go beyond its norm-centric mode of analysis and also that abandoning the norm-centric analysis would counsel against consulting types of foreign legal materials, such as international human rights treaties, that do not reveal reasons behind the norms that they endorse. This Article ends by exploring both broader implications and limits of arguments made in this Article for the judicial borrowing debate.

Suggested Citation

Lee, Youngjae, International Consensus as Persuasive Authority in the Eighth Amendment. University of Pennsylvania Law Review, Vol. 156, 2007, Fordham Law Legal Studies Research Paper No. 959706, Available at SSRN:

Youngjae Lee (Contact Author)

Fordham University School of Law ( email )

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