Foreign Precedent in State Constitutional Interpretation

Abstract

The use of foreign law in constitutional interpretation has been met with intense criticism and commentary. Indeed, few subjects in constitutional law have attracted more attention in the last two decades. Justices, scholars, politicians, and pundits have all weighed in on how and whether American courts should consider foreign law when interpreting domestic constitutional provisions. The issue is now standard stock for questioning at judicial confirmation hearings, and law reviews have dedicated hundreds — perhaps thousands — of pages to related analysis and commentary. Despite this impressive tome of literature, this essay draws attention to an issue that the vast majority of commentators have overlooked. Almost all of the commentary on this issue has focused exclusively on whether it is appropriate for judges to use foreign precedent when interpreting the U.S. Constitution. Hardly anyone has stopped to ask whether state constitutional interpretation raises unique comparative issues or whether existing criticisms of using foreign precedent apply equally to state constitutional interpretation. This essay suggests various reasons why the debate regarding comparative analysis may be very different when a judge is interpreting a state constitutional provision rather than the U.S. Constitution.