International and Foreign Law Sources: Siren Song for U.S. Judges?
Advance: The Journal of the ACS Issue Groups, Vol. 3, No. 1, 2009
17 Pages Posted: 7 Nov 2007 Last revised: 13 Nov 2012
Date Written: October 1, 2007
In this issue brief distributed by the American Constitution Society, Professor Keitner addresses the growing debate over the use of foreign and international law sources by U.S. judges engaged in constitutional adjudication. She begins by summarizing the attitudes towards international law sources exhibited by individual justices in the American legal system, noting that "one's opinion about the potential relevance of foreign and international law sources... depends in no small part on one's view of the role of judges in a constitutional democracy." Professor Keitner then examines the public opposition to the citation of foreign law sources in Lawrence v. Texas and Roper v. Simmons, which manifested itself in proposed legislation that would constrain how judges could interpret cases and prohibit the consideration of international law sources. Finally, Professor Keitner identifies three principled objections to the use of foreign and international law sources in constitutional adjudication (categorizing them as as institutionalist, instrumentalist, and inherentist objections), and responds to each in turn. Professor Keitner concludes, "Participating in international judicial dialogue should be viewed as a means of strengthening, not weakening, our commitment to the democratic values embodied in the U.S. Constitution."
Keywords: constitutional interpretation, international law, foreign law, transnationalism
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