Foreign Law and the U.S. Constitution

Abstract:     
The use of foreign law and unratified international treaty law by U.S. courts in U.S. constitutional adjudication has emerged as a major debate among justices of the U.S. Supreme Court, with Justice Anthony Kennedy writing for a majority approving the practice in the March 2005 decision of Roper v. Simmons, and Justices Antonin Scalia and Stephen Breyer undertaking an unusual public discussion of the practice in January 2005 at American University law school. This article examines the arguments made by Justices Kennedy, Scalia, and Breyer for and against the practice, setting them in the broader context of constitutional theory. It criticizes the practice, and Justice Breyer's pragmatic defense of it, on grounds that it claims the use of foreign law merely provides "information" to the court about practices in other places, whereas in fact it is a potent source of ideology and values-based justification. The article further criticizes the practice on the basis of the value of democratic sovereignty and the adherence to the political legitimacy of a particular people and its democratic will. The article closes by suggesting that, beyond political theory, the practice of citing foreign law needs to be understood as sociology and social theory, and as the promotion of a shared set of globalized elite bourgeois values by particular Justices of the Supreme Court.

Keywords: US Supreme Court, foreign law in US courts, democratic sovereignty, sovereignty, constitutional law, comparative law, comparative constitutionalism, constitutional comparativism, pragmatism, international law, global law, elite, elitism, globalization

JEL Classifications: K33

Accepted Paper Series