Rethinking the Use of Foreign Law and Public Consensus: The U.S. Supreme Court’s Inconsistent Methods for Defining Constitutional Rights
Luke Nikas, 13 Lewis & Clark L. Rev. 1007 (2009)
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The debate over the Supreme Court’s citation of foreign law rages on. Does the Court have a constitutional license to consider foreign law? Does foreign law differ too much from our own to be of any value? Discussions of questions like these fill confirmation hearings, law reviews, and pages of the U.S. Reports. But a key piece of the debate is missing. This Article connects the use of foreign law with the ways in which the Supreme Court has used a domestic consensus to define constitutional rights. It argues that the decision to consider foreign law, or not, raises substantially the same moral-philosophical problems as the Court’s use of a domestic consensus. These philosophical problems are particularly pronounced because the Supreme Court’s doctrinal methods for defining constitutional rights rely upon consensus in inconsistent ways, all of which conflict with moral-philosophical theories about the source and meaning of our rights. The Article concludes by arguing that the Court has failed to justify its consensus-related jurisprudence and, in turn, has failed to explain how our rights come to fruition and what they actually mean.
