By: James G. Apple, Editor-in-Chief, International Judicial Monitor and President, International Judicial Academy

One dramatic moment in the otherwise listless confirmation hearings of U.S. Supreme Court Justice-nominee (now Justice) Sonia Sotomayor this summer was an exchange between the nominee and a Southern Senator. The senator asked the nominee whether she would rely on or cite international or foreign law in cases involving the interpretation of the Constitution of the United States and pressed her to “affirm” that she would not. This inquiry is the embodiment of a prejudice that has been adopted by the conservative movement in the United States – a prejudice that makes it somehow un-American to look to foreign sources of law for constitutional or statutory interpretation or construction, or even for inspiration.

This opposition to foreign influences in judicial decisions is a relatively new article of faith for conservative ideologists. It is apparently derived from recent but still rare occasions when some Supreme Court justices have quoted from or examined the constitutions, statutes or decisions of the courts of other countries, or even worse, according to the ideologists, from international law.

As one commentator summed up the situation:

“The Justices have sinned, it seems, by stating honestly that consultation with international or foreign legal norms had aided their decision making.”

From what is this fear of foreign or international influence derived? It certainly does not flow from a familiarity with, or an examination or knowledge of the history and traditions of the United States legal system, or even from the legal system from which much of the U.S. legal system is derived, the English common law system.

In fact, the legal system of the United States is ultimately a product of the influences of a variety of sources, primarily European, but by no means limited to English common law. Consider the following:

The concept of an independent judiciary operating in a separate judicial branch, a mainstay of the American constitutional system of government, was first formulated by the French political philosopher Montesquieu, in his The Spirit of the Laws, published in 1748.

Many of the ingredients of the concept of liberty, especially those incorporated into the first ten amendments to the Constitution of the United States, aptly named the Bill of Rights, were derived in part from the writings of the English philosopher John Locke, including his Second Treatise on Government.

The jury system, another staple of the American legal system, actually had its origins in Brittany in France and was brought to England by William the Conqueror in 1066.

Many of the characteristics of trials in the United States, including the calling of witnesses and examination of witnesses by lawyers, have their distant origins in the canon law of the Roman Catholic Church and were developed in church trials in Italy at a time when the European civil law system developed before and during the Renaissance.

The Constitution specifically refers, in Article I, Section 8, to the “law of nations” (the law of nations then existing was primarily of European origin). John Jay, the first Chief Justice of the United States, and other early justices of the Supreme Court, recognized in their decisions the primacy of “the law of nations” in American jurisprudence.

One of the stated reasons that President John Adams selected John Marshall, the “Great Chief Justice,” as head of the U.S. judiciary was his familiarity with the “law of nations.”

Blackstone, the great commentator on English common law, to which so much of the American legal system is indebted, recognized that the “law of nations” was part of the common law of England.

I am sure that a dedicated legal scholar, interested in tracing the sources of the content of discrete areas of American jurisprudence, such as the law of property, the law of torts, the law of contracts, and criminal law, would eventually have to concede that at least some of the principles that now make up the corpus of these areas of law can be traced to the laws of other countries or, in some cases, to international law. This is because some legal norms and principles don’t always come from a single source, but rather are sometimes derived from sources distant from the place where the particular legal principle is announced or applied.

Thus, the question arises, if so much of the American legal experience, or at least some of it, has its origins in the legal systems and jurisprudence of other countries and the law of nations (which we now call international law) what is wrong with looking to foreign law and international law for assistance in interpreting the Constitution of the United States? Looking to foreign and international law on a particular issue to assist in constitutional interpretation might result in an enlightenment that would not otherwise be present, and might also produce a more just result in a particular case, as well as a stronger Constitution for a diverse and changing society.

There is another reason why reference to foreign and international law in interpreting the U.S. Constitution might be a useful exercise. I recently read a book titled Founding Faith, written by Steven Waldman, a journalist and president of a faith and spirituality website. This book provides an excellent description and analysis of the religious views of five “founding fathers” of the U.S. Constitution and of the government of the United States. In the book, Waldman makes the point that, in interpreting the First Amendment to the Constitution of the United States, which both prohibits the government of the United States and of the individual states from establishing religion or preventing the free exercise thereof, there are cases that present clear issues for constitutional review. But he also points out that there are other cases where constitutional issues do not offer clear black and white choices, but are rather in gray areas, where good arguments can be made on either side. The reason for this may be that the constitutional language is such that it cannot be easily applied to a given set of circumstances. In these gray areas, he argues, it might be better to forego strictly constitutional analysis and seek to determine whether the action or activity under scrutiny is wise.

Therein lies the value of the judge, occasionally in those cases where the constitutional issue in a case is not black and white, but gray, particulary because of the vagueness of constitutional language, - looking to foreign or international law or legal principles, to determine if a particular conduct or activity is, likewise, wise or prudent.

An international jurist has offered another reason why a Supreme Court justice or U.S. appellate judge might want to look to foreign or international law to resolve a constitutional issue or assist in the resolution of a particular case. This jurist pointed out in a lecture that the jurisprudence and laws of almost all countries contain “gaps” where there is no legal principle or judicial precedent to assist the judge in the resolution of the case. In such instances, this jurist argued, it seems perfectly reasonable to look to foreign or international law that has addressed the issue for guidance and a way to fill the gap in the domestic legal system.

I will conclude with a remark by a friend who sits as a justice on the constitutional court of another country. My friend observed that he often consulted with foreign judicial decisions and foreign law to become acquainted with the “best thinking” of a particular issue. For U.S. judges, including justices of the Supreme Court, there can be no better way of looking at a constitutional issue and deciding it, than to seek the “best thinking” on it, even if the origins of that thinking are the laws and decisions from other countries or international law.