The Legitimacy of Comparative Constitutional Law: A Modal Evaluation

Abstract

In recent years, there has been intense debate — within the judiciary, academia, the press, even Congress — over the legitimacy of using foreign law in American courts. This question cannot be answered, however, unless one knows what the relevant criteria for constitutional legitimacy are. By what standards should we decide whether it is appropriate for American courts to cite foreign law in their decisions? Before we can figure out whether it is constitutionally proper for American courts to use foreign law, we need to first agree on what makes something constitutionally proper. In a pair of path-breaking books, Constitutional Fate: Theory of the Constitution and Constitutional Interpretation, Philip C. Bobbitt offers a modal approach to constitutional argument, presenting six different types, or modalities, through which constitutional discourse is channeled. This Article will attempt to evaluate the legitimacy of the practice of comparative constitutional law by American courts through modal lenses. It will ask one question — is it legitimate for our judges to cite foreign law? — six times, each time analyzing it within a particular modal framework; textual, historical, structural, doctrinal, prudential, and ethical. Using those methodological tools, it will provide one answer.