In two of the most controversial cases of the past decade, Roper v. Simmons (1) and Lawrence v. Texas, (2) the Supreme Court relied on foreign law to help determine the meaning of the United States Constitution. (3) This short Essay will explain why such citations violate important constitutional principles and will suggest a possible constitutional remedy.
I. FOREIGN LAW AS A MECHANISM OF CONSTITUTIONAL CHANGE
The basic problem with these foreign citations is simple: the current state of foreign law generally does not tell us anything relevant to the project of constitutional interpretation, properly understood. For textualists and originalists, the project of constitutional law is to discern what the text of the document would have meant to an educated reader at the time of ratification. (4) For this project, the proper referents are constitutional text, history, and structure. The current trend is inconsistent with textualism and originalism not merely because the sources cited are foreign, but also because they are contemporary. (5) As a general matter, it is simply unfathomable how the law of, say, France in 2009 could be relevant to the public meaning of the United States Constitution in 1789.
But of course, those who would cite foreign law do not accept these premises. The current predilection for using contemporary foreign law to interpret the United States Constitution necessarily entails a rejection of the quest for its original meaning. Those who would cite contemporary foreign law necessarily embrace the notion of an "evolving" Constitution.
Or, to put the point more starkly, the current predilection for use of current foreign law is as a mechanism of constitutional change. Foreign law changes all the time. If foreign law is relevant to constitutional interpretation, it follows that a change in foreign law can alter the meaning of the United States Constitution.
And that is why the stakes are so high. The notion of the Court "updating" the Constitution to reflect its own evolving view of good government is troubling enough. But the notion that this evolution may be brought about by changes in foreign law violates basic premises of democratic self-governance. (6) When the Supreme Court declares that the Constitution evolves--and that foreign law effects its evolution (7)--it is declaring nothing less than the power of foreign governments to change the meaning of the United States Constitution.
And even if the Court purports to seek a foreign "consensus," (8) a single foreign country might make the difference at the margin. (9) Indeed, foreign countries might even attempt this deliberately. (10) France, for example, has declared that one of its priorities is the abolition of capital punishment in the Untied States. (11) Yet surely the American people would rebel at the thought of the French Parliament deciding whether to abolish the death penalty--not just in France, but also, thereby, in the United States. (12)
After all, foreign control over American law was a primary grievance of the Declaration of Independence. The Declaration's most resonant protest was that King George III had "subject[ed] us to a jurisdiction foreign to our constitution." (13) And this is exactly what is at stake here: foreign government control over the meaning of our Constitution. Any such control, even at the margin, is inconsistent with our basic founding principles of democracy and self-governance. (14)
Indeed, the Constitution itself has something to say about constitutional change. "We the People of the United States ... ordain[ed] and establish[ed] th[e] Constitution," (15) and have also included mechanisms by which we could change it if necessary. Article V sets forth a complex, carefully wrought mechanism--really four such mechanisms--for constitutional change. (16) These mechanisms require the concurrence of many different collective bodies, each with a different--and exclusively American--geographic perspective. …