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Referring to Foreign Law in Constitutional Interpretation: An Episode in the Culture Wars

By Mark V. Tushnet


As Judge Messitte\u27s essay demonstrates, recent references in Supreme Court decisions to non-U.S. legal materials have generated a great deal of controversy. Those who make such references say that doing so is no big deal. I have called the controversy a tempest in a teapot. My topic here is the disjuncture between the perception on one side that something important and troubling has happened - or, as I will argue, may be about to happen - and the perception on the other that there is nothing to be concerned about. After describing in Section I the practice that has given rise to the controversy, I examine in Section II one feature of the controversy that, I believe, has not yet been addressed in detail: The target of criticism is not really what Justices of the Supreme Court have done, but rather what they might do. I then argue that the fact that the target is an imagined practice rather than the real one is a clue to the nature of the controversy. The controversy, I conclude in Section III, is a skirmish in the ongoing culture wars over the courts. The claims made against and for references to non-U.S. law in constitutional interpretation ought to be analyzed as cultural artifacts rather than as arguments, that is, in terms of the reasons given against and for the practice

Topics: Constitution – Interpretation and construction, judicial review, comparative law, Comparative and Foreign Law, Constitutional Law
Publisher: Scholarship @ GEORGETOWN LAW
Year: 2006
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