NCPA - National Center for Policy Analysis


May 23, 2006

Foreign law should not be used to interpret the United States Constitution, because it can never be relevant to any interpretation of the meaning of the Constitution, says Supreme Court Justice Antonin Scalia.. Yet, the Supreme Court has recently expanded the use of foreign law.

Moreover, the Court's use of foreign law in the interpretation of our Constitution will continue at an accelerating pace for three main reasons, says Scalia:

  • The "living Constitution" paradigm of interpretation prevails on today's Court, and indeed in our legal community generally; under this view, it is the task of the Court to make sure that the current Constitution comports with "the evolving standards of decency that mark the progress of a maturing society."
  • Foreign law is also likely to be used increasingly because it's there.
  • Adding foreign law to the box of available legal tools is attractive to judges because it vastly increases the scope of their discretion.

The Supreme Court's reliance on foreign sources has not only been selective in terms of which foreign laws are consulted, it has also been selective as to when foreign law is consulted at all, says Scalia.

Furthermore, if there was any thought absolutely foreign to the founders of our country, it was the notion that we Americans should be governed the way Europeans are; few Americans would want their life or liberty subject to the disposition of foreign law, says Scalia.

Source: Antonin Scalia, "Don't Impose Foreign Law on Americans," American Enterprise Online, May 2006.


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