Using “Foreign” Law in Constitutional Interpretation
It is not breaking news to note that a significant debate is underway about whether foreign law should be used to read our Constitution. Separating this jurisprudential issue from the substantive controversies that often accompany the debate (on capital punishment, for example) is difficult and often breaks down into a liberal/conservative smackdown. So I’d like to suggest a possible line of neutral research. This might be a good student note topic.
Pick a pair of U.S. states (or multiple pairs) that differ widely in their politics. (Say Mississippi and Vermont, or Utah and Hawaii). Then look at each State Supreme Court’s cases interpreting its own Constitution. How often do those cases cite the “foreign law” from the ideologically opposed state?
This would be helpful information. Nobody would argue that it is inappropriate for a state court to cite another state court in a constitutional context because we are one nation. But it would be interesting to learn whether this practice is common. Critics of citing foreign law in the U.S. Supreme Court argue that the practice is wrong in part because our citizens did not consent to the processes that produce those decisions and often have different values from a country like France. The same argument, though, could be made if the Texas Supreme Court, for example, cites a decision from Maine. (Note that this study would work best in states where amending the constitution is relatively hard.) If states like Texas routinely cite states like Vermont in constitutional cases (not garden-variety common law cases), then the argument against doing so at the federal level would be undermined. And vice versa.