There has been an ongoing debate about the use of foreign law to interpret the American constitution. In 2010 Oklahoma enacted a broad ban on the use of foreign law. A federal court later lifted this ban. There remains however a lot of opposition to the use of international law. Justice Scalia stated, “we must never forget that it is a Constitution for the United States of America that we are expounding. Where there is not first a settled consensus among our own people, the views of other nations, however enlightened the justices of this court may think them to be, cannot be imposed upon Americans through the Constitution.”
Scalia is not alone in his views. The court’s conservatives – including Chief Justice John Roberts Jr., Justices Clarence Thomas and Samuel Alito Jr. – argue that foreign decisions can be relevant in some of the court’s cases that deal specifically with international issues but never in interpreting the Constitution.
On the other hand, Justice Stephen Breyer in his new book, “The Court and the World: American Law and the New Global Realities,” cites the importance of using foreign law in deciding tough cases. Breyer says, “15 to 20 percent of the cases we review require the judges to know something about what happens abroad. Sometimes facts, sometimes laws, sometimes decisions.” Justices Anthony Kennedy and Ruth Ginsburg agree that examining such information from abroad is no different from reviewing the many studies or briefs that seek to influence court deliberations.
While we shouldn’t embrace every attempt to introduce foreign law into the American legal system, neither should we reject it altogether. There will be times when American law should seek reference to foreign law and times when it should not. It is up to the judges then and those who interpret the Constitution.
With 16.5% of the United States GDP attributed to foreign direct investment, the U.S. must look at foreign laws. The constitutional limitations along with restrictions on tax laws, antitrust laws, and immigration laws all affect foreign investment. While the United States should remain true to its roots, if it does not adapt to the new global realities, it may very well be left behind.
According to the Organization for International Investment: Worldwide, cumulative foreign inward investment rose to $25.5 trillion through 2013. The U.S. share dropped to less than one-fifth in 2014 from more than a third in 2000. This is because competition for foreign investment dollars has increased, and multinational companies have expanded their investments in faster growing developing markets. For the fourth consecutive year, more than half of all foreign direct investment in 2013 flowed to developing and transition economies; in fact, developed countries now account for only 39% of global FDI inflows. So foreign allies seem to matter after all.
Sources: Breyer, S. (2015). The court and the world: American law and the new global realities.