69 Alb. L. Rev. 653 (2005-2006)
The purpose of this Article is to discuss common mistakes in the current debate on outsourcing authority. The first mistake in the debate on outsourcing authority is about the protagonists. To focus solely on the fact that some justices espouse this approach, while others do not, distorts the true picture of the rich debate that is ongoing at the bar, the bench, the academy, and beyond. Mistaking the voices in the debate will distort what is at issue in the discussion. The reality is much more complex. There is a groundswell of opposition to this trend from various corners and for a variety of reasons. It would be a mistake to discount the importance of this debate based on antipathy toward one or more justices or their constitutional persuasion.
The second mistake in the debate is about the novelty of constitutional comparativism. Many proponents feel threatened by recent criticism of this movement and they seek comfort in the embrace of history. But those who maintain that there is nothing novel about the current rage of constitutional comparativism ignore the numerous ways in which history is not an accurate guide to present trend toward comparativism, including: (1) the manner in which foreign authority is cited; (2) the quantity and quality of foreign and international authority; (3) the move toward global constitutionalism and international human rights; (4) the concerted effort to lobby justices to become internationalists; and (5) the willingness of some justices to engage in foreign diplomacy.
A third mistake in the debate on outsourcing authority is to fail to distinguish between statutory and constitutional interpretation. Some proponents of constitutional comparativism note approvingly the longstanding tradition of interpreting statutes consistent with international norms. A proper appreciation for outsourcing authority would make a sharp distinction between this relatively uncontroversial practice of importing international law through statutory presumptions, and the quite controversial practice of interpreting constitutional liberties consistent with international law.
The final mistake in the debate on outsourcing authority is to assume that the outcome of constitutional comparativism will be an expansion of individual liberties. That has not proven to be the case in the United States, and there is no reason to assume it will be so in the future. It is a mistake to assume that advocates of constitutional comparativism will be limited to those who wish to expand constitutional liberties. The Court has not, should not, and will not rely on foreign authority as a one-way ratchet that only broadens constitutional liberties.
Roger P. Alford,
Four Mistakes on the Debate on "Outsourcing Authority",
69 Alb. L. Rev. 653 (2005-2006).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/25
Reprinted with permission of the Albany Law Review.