Justice Scalia on the Use of Foreign Law in Constitutional Interpretation: Unidirectional Monologue or Co-Constitutive Dialogue?

Abstract:     
This short essay explores Justice Antonin Scalia's conservative alternative approach to recent efforts by other Justices to utilize foreign and international legal sources in the Supreme Court's jurisprudence. It discusses Justice Scalia's writings and remarks over the course of the 2003-2004 Supreme Court Term: On the one hand, Justice Scalia consistently denounced the use of foreign legal sources in constitutional interpretation, both in his concurring opinion in Sosa v. Alvarez-Machain and in his keynote address at the Annual Meeting of the American Society of International Law. On the other hand, in his dissent in Olympic Airways v. Husain, Justice Scalia criticized the majority for failing to give sufficient consideration to foreign court decisions in interpreting the meaning of the Warsaw Convention. He argued that the Court should give considerable deference to prior decisions by the courts of U.S. treaty partners. Drawing on his writings and remarks, this essay explores the possible construction of a conservative alternative approach to transnational judicial dialogue, and evaluates both the practicality and the wisdom of such an approach. It argues that Justice Scalia's approach misunderstands the nature of transnational judicial dialogue: He views it as a unidirectional monologue involving a largely passive role for U.S. courts as mere recipients of foreign legal norms, rather than as a true co-constitutive dialogue in which US court participation can play a role in shaping the content of foreign and international law.

Number of Pages in PDF File: 17

Keywords: judicial dialogue, foreign and international law, comparative law, international law in us courts, roper

Accepted Paper Series