The Dilemma of the Three Wise Monkeys? Transnational Law as a Tool of Constitutional Interpretation and the US Supreme Court

Abstract

A review of the case law of the US Supreme Court shows that the use of foreign and international law has a long pedigree. It also shows that comparative practice has been especially important in ‘social’ periods of American legal history. This paper provides a model of the three ideal types that foreign and international law may occupy in constitutional interpretation. It also categorises a series of arguments in favour of an ‘interlocutory relationship with transnational legal sources’ and reviews three interrelated issues that are often heralded by its opponents—originalism, juristocracy, and the legitimacy/democratic case against it—in the light of the emergence of an American nationalist school of international law. Lastly, it reflects on whether the blending of traditional conceptions of statehood and democratic ideals is bringing the US Supreme Court closer to developing a new jurisprudence to delimit the proper hermeneutic space for transnational sources.