Justifying the Use of Foreign Precedent in Constitutional Cases

Abstract

In this thesis, I attempt to justify the use of foreign precedent in Supreme Court constitutional cases and respond to various criticisms that have been brought forth. There are many critics of this process, as it is typically thought that Supreme Court Justices ought to look to their own domestic constitution and history of precedent when deciding cases. One of the critiques that I highlight is that the process is undemocratic and I respond to this by showcasing a distinction between procedural and constitutional conceptions of democracy. As well, I attempt to justify the process by showing how the utilization of foreign precedent can actually help judges uphold important values that we cherish in a constitutional democracy. I also attempt to do this for those who do not endorse the constitutional conception of democracy, by distinguishing between a community’s moral opinions and true moral commitments. I also examine two landmark cases Roper v. Simmons and Lawrence v. Texas, in order to establish the reasons that judges utilize foreign precedent; namely, as a source of further legal information and not due to any binding requirement.