"Raise the flag and let it talk": On the use of external norms in constitutional decision making

Abstract

Landmark judgments in 2003 prompted comments that the U.S. Supreme Court had abandoned a tradition of insularity in favor of allowing external norms to inform its internal constitutional deliberations. Viewing these judgments against the backdrop of the Court's prior jurisprudence, this essay finds a willingness to look at foreign law, as well as an unexplained selectivity with regard to the circumstances in which this is deemed to be appropriate. It identifies two threshold criteria for consultation: the presence of similar experiences; and the resolution of questions in accordance with norms derived from a shared commitment to fundamental rights. Even when both criteria are met, the Court is likely to rely only on those external norms that are imbued with internal resonance; that is, on foreign law whose application serves an American vision of what is just.