The Controversy Over Citations to Foreign Authorities in American Constitutional Adjudication and the Conflict of Judicial Philosophies: A Reply to Professor Glendon

Abstract

In her contribution to this symposium, Professor Mary Ann Glendon acknowledges that US Supreme Court citations to foreign authorities are here to stay and argues for a modest place for them consistent with a view that they ought not to be used to expand judicial activism. This reply argues that the controversy over citations to foreign law is subordinate to a much larger contentious debate among proponents of restrictive judicial philosophies and those that embrace expansive ones. Moreover, except for “original meaning” originalists when they actually practice what they preach, even proponents of restrictive approaches have used references to foreign law either to buttress their position or to refute those advanced by their colleagues who adopt more expansive approaches. Based on this and on a review of the relevant cases, I argue for unrestricted introduction of the citations in question, leaving it to the adversary system of justice to sort out relevance and selectivity concerns. The actual relevance of foreign law in constitutional adjudication varies depending on context, ranging from very important where it embodies jus cogens to largely incidental where it provides a foil for further domestic self understanding and self evaluation.

Keywords: comparative constitutional law, jus cogens, citations