Why Justice Scalia Should Be a Constitutional Comparativst . . . Sometimes


The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This essay begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia’s writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the essay does not propose a full-blooded theory of constitutional comparativism, it sketches the outlines and sets the stage for further conversation.


Comparative and Foreign Law | Constitutional Law | International Law | Jurisprudence

Date of this Version

August 2006