Foreign Law in U.S. Constitutional Interpretation

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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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:

    Gerard,

    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:

    http://volokh.com/posts/1239637191.shtml

  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:

    Orin,

    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:

    Gerard,

    Fair point. Thanks for the repsonse.

    Vladimir,

    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: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1392122

  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:

    http://thesovereigntysource.wordpress.com/2009/05/06/opposition-builds-against-koh-nomination/