Burying Our Constitution in the Sand?: Evaluating the Ostrich Response to the Use of International and Foreign Law in U.S. Constitutional Interpretation


This article contributes to the current heated debate regarding the extent to which the U.S. Supreme Court should use foreign and international law in U.S. Constitutional interpretation. Despite a fairly high degree of commentary on this issue among the Supreme Court justices and other judges, scholars, politicians, and the media, the arguments on both sides of the debate have not been fully explored. This article clarifies the debate by carefully separating the different sources of law at issue and examining each source in light of the objections to the use of foreign and international law sources that have been raised. I use history and political theory to demonstrate that not only is it entirely appropriate for the courts to take international law into account when interpreting the U.S. Constitution, in many cases the Court has an obligation to do so. In fact, failing to take international law into account would be contrary to the framers' intentions, violate the social compact upon which this nation was founded, and undermine the Supreme Court's legitimacy. However, I also conclude that foreign law has a weaker constitutional basis and therefore should be used more carefully and sparingly. Finally, I suggest how and why the Supreme Court should continue to use international, and to a lesser extent, foreign law, in the future.


Constitutional Law | International Law

Date of this Version

March 2006