Why Justice Scalia Should Be a Constitutional Comparativist Sometimes

33 Pages Posted: 10 Sep 2006

See all articles by David C. Gray

David C. Gray

University of Maryland Francis King Carey School of Law

Abstract

The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a full-blooded theory of constitutional comparativism, it sketches the outlines and sets the stage for further conversation.

Keywords: Jurisprudence, Constitutional Theory, Originalism

Suggested Citation

Gray, David C., Why Justice Scalia Should Be a Constitutional Comparativist Sometimes. Stanford Law Review, Vol. 59, No. 5, p. 1249, 2007, Available at SSRN: https://ssrn.com/abstract=929095

David C. Gray (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

HOME PAGE: http://www.law.umaryland.edu/faculty/profiles/faculty.html?facultynum=598

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