Two Hundred Years of Reliance on Foreign Authority

Steven Calabresi and Stephanie Dotson Zimdahl have recently published in William & Mary Law Review an article on The Supreme Court and Foreign Sources of Law: Two Hundred Years Of Practice and the Juvenile Death Penalty Decision available at 47 William & Mary L. Rev. 743. An earlier version is available on SSRN here.

Here is the summary from their introduction:

Our analysis of the Court’s practice leads us to several conclusions. First, we believe that those political and journalistic commentators who say that the Court has never before cited or relied uponforeign law are clearly and demonstrably wrong. In fact, the Court has relied on such sources to some extent throughout its history. Second, the Court has cited foreign law with much more frequency in far more important constitutional cases as the Court has grown older and has increased significantly its use of such sources in striking down legislation only since Trop v. Dulles in 1958. The phenomenon that Justice Scalia complains about is thus a relatively new development. Third, the Court has tended to cite foreign law in some of its most problematic opinions, such as several of the concurring opinions in Dred Scott, and its opinions in Reynolds and in Roe v. Wade. This suggests that Justice Scalia is right to be wary of the Court’s movement in this direction. Fourth, the historical evidence suggests to us that citation of foreign law is most (if at all) justifiable when the U.S. Constitution asks the Justices to weigh whether a certain practice is reasonable, as it does in the Fourth Amendment, or whether it is unusual, as it does in the Eighth Amendment. In contrast, citing foreign law is least justifiable when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence, or whether a federal statute violates historically unique American federalism rules, as it was asked to do in Printz v. United States. We suggest that in the overwhelming majority of non-Fourth and non-Eighth Amendment cases, it is inappropriate for the Court to cite foreign law. Citation of such law can, in fact, be a sign that the Court is falling into policymaking, as it did in Dred Scott, Reynolds, and Roe, and this, in turn, suggests that the Justices are behaving illegitimately. We thus substantially agree with the spirit, if not entirely all of the substance, of Justice Scalia’s warning against citing foreign law in most U.S. constitutional cases.