Cruel and Unusual Existence: Comparative Constitutionalism Revisited

Abstract

In Atkins v. Virginia (2002) and Roper v. Simmons (2005), the Supreme Court borrowed from foreign legal sources in the context of the "cruel and unusual punishment" provision of the Eighth Amendment, as applied to special cases of capital punishment. In City of Grants Pass, Oregon v. Johnson (2024), a new case involving the same provision as applied to penalties for sleeping in public, the Supreme Court faced an opportunity to indulge similarly in comparative constitutionalism-the practice of examining and using the constitutional laws, practices, or court decisions of other countries to inform or interpret one´s own constitutional law. This Article contrasts the use of foreign law in constitutional adjudication in the former cases with the Johnson case and explores the extent to which it is true what Justice Kennedy wrote for the Court in Graham v. Florida (2010)-a follow up to Atkins and Roper-that the Court treats "the laws and practices of other nations and international agreements as relevant to the Eighth Amendment."This Article argues that the Johnson Court missed a critical opportunity to employ persuasive, non-binding guidance in constitutional adjudication. Drawing on natural law theory, the Article defends the use of foreign sources as confirmatory and educational tools in interpreting fundamental rights. Ultimately it calls for a more principled and consistent application of comparative analysis in Eighth Amendment jurisprudence, particularly in those areas involving human dignity and evolving standards of decency.