Breyer v. Scalia on Foreign Law and Constitutional Interpretation

by Julian Ku

As Chris noted, Justice Breyer and Scalia engaged in an unusual public “conversation” about the use of foreign law in constitutional interpretation last Thursday. The transcript has been posted here (via how appealing ). This exchange has already been the subject of numerous posts in the blogosphere here and here. I don’t have much more to add except to observe that Justice Breyer’s defense is essentially that since foreign law is not binding, it can’t really be that bad (and might well be helpful) for constitutional interpretation. This is an attractive position, perhaps, but it is useful to compare Justice Breyer’s defense with Justice Scalia’s approach, which provides a theory of constitutional interpretation which coherently explains why foreign law is irrelevant. Justice Breyer’s approach lacks any coherent theory explaining why foreign law is relevant and, for that reason alone, is less persuasive. I do think there are coherent theories of why foreign law might matter, but Justice Breyer has simply failed to identify or endorse any of them. Any thoughts, Chris or Peggy?

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