International Law, Sovereignty, and American Constitutionalism: Reflections on the Customary International Law Debate

Abstract

The preceding contributions to this Agora investigate the discernible trend in Supreme Court decisions of citing international legal materials in support of a conclusion about domestic constitutional law. Discussion of this rather limited use of international law—far short of the notion that “[i] nternational law is part of our law”—implicates a deeper set of questions about democracy, sovereignty, and sources of law: Is recourse to international sources a fundamental affront to notions of democratic self-rule, or is it the natural development of a maturing legal system—one moving toward new understandings of sovereignty and popular sovereignty appropriate to an increasingly interconnected web of transnational legal relations? I will argue here for the latter position, and from this perspective the occasional illustrative citation to international norms in the course of a conventional constitutional law opinion is an invitation to broader thought more than a fire bell in the night.