Storm in a Teacup: The U.S. Supreme Court’s Use of Foreign Law

In this article, Professor Parrish explores the legitimacy of the U.S. Supreme Court’s use of foreign law in constitutional adjudication. In re-cent years, the U.S. Supreme Court has used foreign law as persuasive authority in a number of highly contentious cases. The backlash has been spirited, with calls for foreign law to be categorically barred from constitutional adjudication, and even for justices to be impeached if they cite to foreign sources. The condemnation of comparative constitutionalism recently reached its high watermark, as a barrage of scholarship decried the practice as illegitimate and a threat to our national sovereignty. The result has been a change to the debate’s tenor. Instead of exploring how to use foreign materials in a sophisticated and refined manner, the debate has been reduced to an overly simplistic all-or-nothing proposition.This article addresses the recent condemnation of the U.S. Supreme Court’s use of foreign law as persuasive authority. After explaining how the debate has unfolded, the article critiques the recent arguments that opponents of the use of foreign law make. The article reveals how those arguments are misplaced, at times extreme, and inconsistent with a long history of American jurisprudence. In particular, the article explains how comparative constitutionalism is a hallmark of our state court sys-tem. The article then explores how the use of foreign law is not only sen-sible, but compatible with American constitutionalism and the proper role of the judiciary. Professor Parrish concludes that the judiciary’s use of foreign law as persuasive authority is largely commendable, not illegitimate. The recent attacks against the use of foreign law are spurred on by rhetoric, not substance: a storm in a teacup.

The full text of this Article is available to download as a PDF.