Judicial Review and United States Supreme Court Citations to Foreign and International Law

Abstract

Recent decisions by the United States Supreme Court and extracurricular discussions between some of the Justices have fueled a debate regarding whether and when it is appropriate for the Court to make reference to foreign law in cases involving the interpretation and application of the United States Constitution. This debate has, to some extent, paralleled the argument over whether the Constitution is best interpreted by looking at the intent of the original drafters - an originalist approach - or by considering it to be a "living" document that must be interpreted to take account of contemporary realities. This article considers the rather limited nature of the real differences on these issues, the limited purpose of references that are made to foreign law in United States Supreme Court decisions, and the problem of being able to make comparisons without making reference to what it is that is being compared.

Keywords: judicial review, foreign law, international law, constitutional interpretation