[W]hat the Supreme Court has done in two controversial cases is to rely on contemporary foreign law in determining the meaning of the United States Constitution. This is the practice that Judge Sotomayor seemed to endorse in her recent speech. And it is this practice that is of great concern, because the relevance of these sources is questionable at best. When one is trying to figure out the meaning of the document down the street at the Archives, it is mysterious why one would need to study other legal documents, written in other languages, for other purposes, in other political circumstances, hundreds of years later and thousands of miles away. To put the point most simply, as a general matter, it is simply unfathomable how the law of, say, France in 2009 could help one discern the public meaning of the United States Constitution in 1789.
So far, all this must seem like common sense. But it may come as a surprise to the American people to learn that not everyone accepts these premises. Some judges, and many law professors, do not believe that the Court should try to discern the original public meaning of the words on the parchment down the street. They seem to believe, instead, that the Court should infuse those words with meaning. They reject the quest for original meaning and embrace the notion of an “evolving” Constitution. And the current predilection for using contemporary foreign law to interpret the United States Constitution necessarily implies an embrace of this “evolving Constitution” theory. These citations must entail a rejection of the quest for the original meaning of the Constitution, because, as a matter of logic, they cannot possibly shed light on that original meaning.
And so, to put the point most starkly, this sort of reliance on contemporary foreign law must be, in essence, a mechanism of constitutional change. Foreign law changes all the time, and it has changed continuously since the Founding. If modern 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 this issue is so important. 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. When American judges conceive of their job as ensuring, on an ongoing basis, that “our understanding of our own constitutional rights f[alls] into the mainstream of human thinking” [quoting Sotomayor’s April speech], then changes in that supposed “mainstream” can expand or contract those constitutional rights. When the Supreme Court declares that the Constitution evolves—and that foreign law may effect its evolution—it is declaring nothing less than the power of foreign governments to change the meaning of the United States Constitution.
Professor Rosenkranz’s responses to senators’ written questions are equally cogent.