Bench Memos

Goodwin Liu on Using Foreign Law to Redefine the Constitution

I hadn’t run across this passage of Goodwin Liu’s:

The use of foreign authority in American constitutional law is a judicial practice that has been very controversial in recent years.  The U.S. Supreme Court has cited foreign authority in cases limiting the death penalty and invalidating criminal laws against homosexual sodomy, among others.  The resistance to this practice is difficult for me to grasp, since the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world.

Liu, Developments in U.S. Education Law and Policy, 2 Daito L. Rev. 18, 27 (2006).

Well, yes, if you think that the Supreme Court has freewheeling authority to reconstrue the Constitution to devise “wise solutions”—sometimes by inventing new rights, sometimes by disregarding inconvenient old ones—then anything goes.  What is evidently “difficult for [Liu] to grasp” is that that’s not a legitimate role for the Court.