2011 Articles

Same Difference: Inter-State Legal Citation and the Supreme Court‘s Use of Foreign Law

Rauch, Daniel E.

We must never forget that it is a Constitution for the United States of America that we are expounding.“ With these words, Justice Antonin Scalia registered his disapproval for an increasingly prominent practice: the Supreme Court‘s citation of non-American law. He is not alone; over the past decade, the Court‘s use of foreign and international materials has proven deeply controversial, attracting both ardent support and scathing criticism. Yet, although the Court‘s glimpses abroad have proven polarizing, America has seen a similar practice flourish without controversy for centuries. Since the Founding, America‘s state court systems—each with its own judicial system and constitutional law—have cited each other when interpreting their state constitutions. That two seemingly comparable techniques have drawn such dramatically different reactions logically suggests the question: if one practice is so widely accepted, what justifies rejecting the other? Addressing this question, in this analysis I argue that there is, in fact, justification for treating these practices differently, but that such justification is limited to concerns drawn from the practical difficulties each method presents.