A Case Against Judicial Internationalism

Abstract

The United States Supreme Court has increasingly referred to specific foreign legal authorities and practices, as well as international conventions, in decisions involving purely domestic concerns. While the Court, to date, has only given such materials persuasive, and not binding, effect in such instances, a number of legislators and commentators in both the media and the legal academy have expressed concern over foreign and international law's increasing role in constitutional jurisprudence. This article critiques what it defines as the Court's increasing internationalism - the use of foreign law and international conventions as persuasive authority in cases with little or no implications beyond U.S. borders. It suggests that the Court should both refuse to expand and reconsider this approach to constitutional adjudication. The article first examines the history of the Court's use of foreign and international law in illustrating how this so-called cosmopolitan approach to decisionmaking constitutes a relatively recent phenomenon. After exploring the current state of the debate over the degree to which the Court should incorporate non-U.S. legal perspectives into its interpretations of the Constitution, the article suggests some negative consequences that might result from the Court's basing conclusions of law on anything but American authorities and practices when evaluating domestic constitutional issues.