Foreign Law in U.S. Constitutional Interpretation

A litigant challenges a state statute as unconstitutional under the Due Process Clause. The Supreme Court rejects this claim in spite of powerful evidence that the statute is inconsistent with the original understanding of the Constitution. In part, they rest this conclusion on European law, which sanctions the state practice at issue and “informs” the meaning of due process. According to the Court:

“The constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of the English law and history; but it was made for an undefined and expanding future, and for a people gathered, and to be gathered, from many nations and of many tongues; and while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not alien to that Code which survived the Roman empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice, suum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not useful forms.”

So who wrote this internationalist claptrap? Justice Kennedy? Justice Breyer? Harold Koh?

Actually, it was Hurtado v. California, the 1884 decision holding that grand jury indictment was not part of the due process guarantied by the Fourteenth Amendment and that proceeding by information, which was a civil law practice, was consistent with the Due Process Clause.

Now does this (or other similar cases that I could cite from that time) settle the question of how foreign law should be used in constitutional interpretation? Of course not. My point is that the argument that this technique is new and at odds with our constitutional tradition is simply inaccurate.

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7 Responses

  1. JP says:

    Hurtado also nicely illustrates the proposition that a supposedly “progressive” method of Constitutional interpretation is not particularly more likely to be protective of liberty.

    “It is difficult, however, to perceive anything in the system of prosecuting human beings for their lives, by information, which suggests that the state which adopts it has entered upon an era of progess and improvement in the law of criminal procedure.” (Harlan, J. dissenting)

  2. Orin Kerr says:


    Can you explain why you think the existence of this passage from Hurtado proves that it is “simply inaccurate” to say that citing foreign law in interpreting the constitution is “at odds with our constitutional tradition”? Establishing what is at odds without our constitutional tradition (and what is not) seems to require more than that. I assume you wouldn’t say that we can rely the same argument about, say, Plessy v. Ferguson and segregation.

    More broadly, my sense is that the opposition to citing foreign law isn’t to the citation per se, but the specific way it has been done recently — and specifically, in the way it has been done to appear to take sides in the culture wars. For more on this, see here:

  3. Vladimir says:

    Gerard, I think your post is characteristically sharp and wry. The “debate” over the citation of foreign law is so, so strange to me — in that it’s hard even to fathom what the argument against it is — that I think opponents of the practice need to be studied much like an anthropologist studies a very remote culture, to figure out what the heck makes these people tick!

  4. Gerard Magliocca says:


    I read your post when it was originally written, and I agree with it. So am I being a little cute with my example? Probably. It is worth noting, though, that Hurtado is still good law, so I think it’s fair to say it’s part of our current (valid) tradition. Moreover, there are plenty of other cases where the Supreme Court followed a similar approach in the 19th century and 20th centuries. The question of how to characterize those precedents is another matter, but they must be addressed in some fashion.

    Regards, Gerard

  5. Orin Kerr says:


    Fair point. Thanks for the repsonse.


    Yeah, but then they’re mostly conservatives — everyone knows they are barely even human!

  6. Robert Tsai says:

    Very interesting post, Gerard. Nelson Tebbe and I are working on a project that makes an intervention in this discussion, “Constitutional Borrowing,” 108 Michigan Law Review (forthcoming 2009). In the article, we present a definition of interpretive appropriation (as well as refusals to borrow) that captures both intrasystem and intersystem appropriations. Instead of relying merely on custom, we defend the practice from a rule-of-law perspective. We put Scalia’s opinion in D.C. v. Heller on the same footing as Kennedy’s opinions in Lawrence v. Texas and Roper v. Simmons. So we would apparently agree with Gerard that the practice of drawing on foreign law is a well-established practice and with Orin’s observation that most serious objections today go to how and under what circumstances foreign law is used (this is how we read Scalia’s objections since he is as avid a borrower as any). Our paper can be downloaded here:

  7. SecPress says:

    You might very well see Harold Koh promote this as a Supreme Court Justice, although I really hope not. There are some people who are following him pretty closely, check out what Tom Kilgannon has said about him: