Getting Beyond the Crossfire Phenomenon: A Militant Moderate's Take on the Role of Foreign Authority in Constitutional Interpretation
13 Pages Posted: 8 Jun 2011 Last revised: 14 Jun 2011
Date Written: November 1, 2008
This brief essay sketches out a, "militant moderate," take on the role of foreign and international law in constitutional interpretation. The essay examines and critiques the key arguments and assumptions of both internationalists (like Justice Breyer) and nationalists (like Justice Scalia). It urges scholars and policymakers to shift from the Crossfire-style debate that has dominated in recent years, toward a more nuanced approach that strikes a balance between the legitimate concerns of nationalists and the legitimate aspirations of internationalists. A militant moderate approach situates the debate over foreign authority in its broader context: American judges' growing participation in transnational judicial dialogue of various kinds. The militant moderate takes as givens the emergence of a globalizing judiciary, and the rise of the domestic judge as a key transnational intermediary with the capacity to shape transnational legal norms on a wide array of subjects. Thus the U.S. debate over foreign authority in constitutional interpretation has not only internal, but also external, implications, for example, by shaping (and potentially limiting) American judges' capacities to serve as intermediaries between domestic and international law. The outcome of the debate over constitutional interpretation will likely have spillover effects in the many arenas (like intellectual property, defamation, bankruptcy, or commercial law) where transnational judicial dialogue is increasingly prominent. For this reason, the militant moderate asserts that more nuanced analytical frameworks are needed, frameworks that recognize the the existence of a range of possible interpretive approaches that courts might use to participate in dialogue on constitutional interpretation.
Keywords: international law, foreign authority, constitutional interpretation, foreign authority in constitutional interpretation, transnational judicial dialogue
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