Judicial Globalization in the Service of Self-Government

This working paper considers potential justifications for the democratic legitimacy of what Anne-Marie Slaughter has termed, “judicial globalization” – the reliance by U.S. judges on international and foreign legal materials in the interpretation of domestic law. Toward this end the paper offers two and a half tentative answers, one distinctive to the U.S., the other(s) with general applicability. The distinctively American response, however conservative in theory, suggests that the original understanding of the Constitution supports a strong presumption that the Constitution, and Federal law generally, be interpreted in a way that is consistent with international law, particularly with regard to fundamental rights. The more general and adventurous response, which argues that courts, in their capacity as democratic institutions charged with the responsibility of rendering principled judgments, may consult at least international law: a) to exercise a distinctive type of foreign affairs authority as well, and; b) to better discern the fundamental commitments of the American people. The balance of the paper defines the project with greater precision, then fleshes out the American and more general ways forward.