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Transnational/Domestic Constitutional Law

25 Pages Posted: 22 Aug 2003  

Mark Tushnet

Harvard Law School

Abstract

The Supreme Court's references to non-U.S. law in deciding constitutional cases, new treaty institutions associated with NAFTA and the WTO, and recent advocacy urging that U.S. courts should make non-U.S. law a rule of decision more often than they have - all these have generated a new critical literature arguing that these developments threaten domestic sovereignty and self-governance. This Essay attempts to describe precisely what the objections are, distinguishing between discrete objections focusing on particular constitutional problems and sovereignty-based objections. I argue that the discrete objections are not terribly strong and that the sovereignty-based ones re-state familiar arguments about judicial activism. The context is new, but the nature of the arguments is not. I conclude by suggesting that the critical literature is a form of interest-group advocacy of precisely the same kind that the literature criticizes as undermining domestic sovereignty and self-governance - which suggests that neither form of advocacy is really troubling.

Suggested Citation

Tushnet, Mark, Transnational/Domestic Constitutional Law. Loyola of Los Angeles Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=437382 or http://dx.doi.org/10.2139/ssrn.437382

Mark V. Tushnet (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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