'A Shining City on a Hill': American Exceptionalism and the Supreme Court's Practice of Relying on Foreign Law

Abstract

This is a tale of two cultures. The first culture is that of the United States Supreme Court and of the lawyerly elite. In that culture, it is not only socially acceptable for the Court and law professors to rely on foreign law in deciding American cases, it is obligatory that the Court do so. Operating within the confines of this elite culture, the Justices have struck down laws as being unconstitutional since at least the time of Chief Justice Warren's famous 1958 plurality opinion in Trop v. Dulles. More strikingly, the Court has relied on foreign law in deciding U.S. constitutional cases more generally at least since Dred Scott and arguably since the Marshall Court era. So all-encompassing is the Supreme Court's practice of relying on foreign law that some of the most famous and consequential Supreme Court cases in American history have been decided with reference to foreign law. Among the cases so decided are: federalism cases, like The Legal Tender Cases and The Selective Draft Law Cases; separation of powers cases like O'Malley v. Woodrough, dealing with taxation of judge's salaries; criminal law cases from 1820 to 2005; famous criminal procedure cases, like Hurtado v. California, Palko v. Connecticut; Wolf v. Colorado, and Miranda v. Arizona; and even economic liberty cases like Block v. Hirsh, a case involving the constitutionality of rent control. In the elite culture of the U.S. Supreme Court, references to foreign law to determine the scope of U.S. constitutional rights are totally commonplace.