Storm in a Teacup: the U.S. Supreme Court's Use of Foreign Law

Abstract

In this Article, Professor Parrish explores the legitimacy of the U.S. Supreme Court's use of foreign law in constitutional adjudication. In recent years, the U.S. Supreme Court has used foreign law as persuasive authority in a number of highly contentious cases. The backlash has been spirited, with calls for foreign law to be categorically barred from constitutional adjudication, and even for Justices to be impeached if they cite to foreign sources. Last year, the condemnation of comparative constitutionalism reached a high note, as a barrage of scholarship decried the practice as illegitimate and a threat to our national sovereignty. The result has been a change to the debate's tenor. Instead of exploring how to use foreign materials in a sophisticated, refined manner, the debate has been reduced to an overly simplistic one of all or nothing. This Article is the first to systematically address the recent condemnation of the U.S. Supreme Court's use of foreign law as persuasive authority. After explaining how the debate has unfolded, the Article critiques the arguments recently made by those who oppose the use of foreign law. The Article reveals how those arguments are misplaced, at times extreme, and inconsistent with a long history of American jurisprudence. In particular, the Article explains how comparative constitutionalism is a hallmark of our state court system. The Article then explains how the use of foreign law is not only sensible, but compatible with American constitutionalism and the proper role of the judiciary. Professor Parrish concludes that the judiciary's use of foreign law as persuasive authority is largely commendable, not illegitimate. The recent attacks against the use of foreign law are spurred on by rhetoric not substance: a storm in a teacup.