A Framework for the Application of Foreign and International Law by the US Supreme Court

Abstract

Throughout this paper, I will be supporting the use of foreign law in Constitutional interpretation through both a theoretical lens and its application in court cases. Accordingly, this paper will proceed in two parts. In the first part, I will discuss the theoretical debate over the use of foreign law in Constitutional interpretation and propose a framework for its application. In the second part, I will apply the theory laid out in part one, to five Supreme Court cases: Thompson v. Oklahoma, Stanford v. Kentucky, Atkins v. Virginia, Roper v. Simmons, and Graham v. Florida. These are all Eighth Amendment6 cases. These cases were chosen because, even among critics of the use of foreign law in Constitutional interpretation, there is general agreement that it is acceptable to use foreign law in Eighth Amendment cases. By highlighting this ideal use of foreign law, I hope to then advocate for a wider use of foreign law in Constitutional interpretation.