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45 Willamette L. Rev. 767 (2008-2009)
Discounting Foreign Imports: Foreign Authority in Constitutional Interpretation & (and) the Curb of Popular Sovereignty

handle is hein.journals/willr45 and id is 775 raw text is: DISCOUNTING FOREIGN IMPORTS: FOREIGN AUTHORITY IN CONSTITUTIONAL INTERPRETATION & THE CURB OF POPULAR SOVEREIGNTY BY ZACHARY LARSENt I. INTRODUCTION The U.S. Supreme Court's resort to foreign and international sources of authority, although not of recent vintage,' has been a cause of alarm for some in the American public and legal academia in recent years,2 as decisions such as Lawrence v. Texas3 and Roper v. Simmons4 have invoked the value judgments of other nations to provide content to constitutional rights in exercising the Court's counter-majoritarian power. The contemporaneous declarations of Supreme Court Justices haling the dawn of a new global legal enterprise,5 ensures that the practice will not be short-lived but is instead quickly becoming firmly rooted in the Court's jurisprudence.6 t Law Clerk to Hon. Calvin Osterhaven. J.D., Magna Cum Laude, Ave Maria School of Law 2008; B.A. Magna Cum Laude, Washington State University 2005. I am grateful to my wife Andrea for her encouragement, patience, and love. I am also indebted to Professor Richard Myers for his feedback and to the members of the Willamette Law Review for their professional courtesy and scrutinizing eyes. 1. Historically, the Supreme Court has resorted to foreign and international law in certain circumstances. See Steven Calabresi and Stephanie Dotson Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 WM. & MARY L. REv. 743 (2005). 2. Daniel A. Farber, The Supreme Court, The Law of Nations, and Citations to Foreign Law, 95 CALIF. L. REv. 1335 (2007) (The Supreme Court's reliance on 'foreign' law has become the subject of heated controversy, particularly with regard to the relevance of foreign authority in constitutional cases.). 3. 539 U.S. 558 (2003). 4. 543 U.S. 551 (2005). 5. Stephen Breyer, Keynote Address, 97 AM. SOCY INT'L L. PROC. 265, 268 (2003). 6. Indeed, very recently Justice Breyer invoked foreign sources to elucidate his theory of the First Amendment in his opinion dissenting in part and concurring in part in Ysursa v.

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