Foreign to Our Constitution

Abstract

This essay argues against most use of international and foreign law in constitutional interpretation, particularly its use to displace state or federal statutory law. I separately address arguments based on foreign law and those based on international law. There is no reason to think that foreign laws, including foreign judicial decisions, contain better norms for the United States than those made democratically here, because foreign laws do not purport to be good norms for the United States, but instead emerge from different, complex social structures.

As to international law, I discuss the main reason that international law might be thought to be useful as a factor to impeach conflicting United States law­ its norm universality. I will then show that this claim is undercut by international law's democratic deficit. It is no answer to reply that constitutional law may legitimately rely on norms that are not democratically validated, such as norms that are good by virtue of some economic or moral theory. The mere fact that a proposition is contained in international law does not make it intrinsically good. I also show that using international or foreign law to displace American law decreases the diversity of global rules and undermines American experimentation that has in the past paid dividends to the entire world. Moreover, reliance on international or foreign law undermines self-governance by encouraging interest groups, domestic and foreign, to frame international and foreign law with a view toward influencing our domestic law.

Finally, I describe the real function that use of international and foreign law serves in our contemporary system of constitutional adjudication­ as a mode by which the aristocratic element of a mixed regime cloaks judgments that it does not want to defend on its own authority.