The Foreign Source Doctrine: Explaining the Role of Foreign and International Law in Interpreting the Constitution

Abstract

This article brings much-needed precision to the debate over the Supreme Court's use of foreign and international law to interpret the Constitution. The debate has been both imprecise, ignoring the subtleties of the phenomenon at issue, and prematurely abstract, jumping to theoretical and ideological levels without first looking to establish the specifics. By focusing on the particular areas of constitutional text subjected to foreign sources and the longstanding lines of caselaw upon which the use of foreign sources builds, this article reveals that a doctrine has crystallized around the use of foreign sources. The doctrine specifies the precise uses to be made of foreign sources and the amount of authority to be bestowed upon them, and, consequently, provides a foundation upon which sensible theoretical and ideological inquiries could be based. In sum, this article tells a story that needs to be heard, exposes the constitutional traditions underlying what is commonly but wrongly treated as a practice of activist judges, and sets the stage for productive social discourse on an important constitutional practice.

Keywords: Constitutional Law, Constitutional Interpretation, International Law, Foreign Source Doctrine