The Next Generation of Transnational/Domestic Constitutional Law Scholarship: A Reply to Professor Tushnet

which is the context in which transnational law would be used. This is a debate about the usages of transnational law as an interpretive tool in particular—how important transnational law is and where it fits within the hierarchy of interpretive sources. Also, those who have occasionally indicated some hesitation about the use of transnational law are concerned that transnational law itself be used in a principled fashion. In his speech to the American Society for International Law, Justice Scalia noted his concerns about when the Court used transnational law, and which 111. I have elsewhere addressed (and I hope rebutted) at least some of these concerns. David Fontana, Refined Comparativism in Constitutional Law, 49 UCLA L. REV. 539 (2001). 112. Thompson v. Oklahoma, 487 U.S. 815, 869 n.4 (1988) (Scalia, J., dissenting). 113. Id. (Scalia, J., dissenting). 114. See id. (Scalia, J., dissenting) (arguing that there must first be “a settled consensus among our own people” before “the views of other nations” may be imposed). DAVID_FONTANA_PRINTREADY_032405.DOC 3/28/2005 9:50:58 AM 124 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. XX:nnn countries and courts it referred to when citing such law. As Judge Posner has argued, “the judicial systems of the rest of the world are immensely varied and most of their decisions inaccessible, as a practical matter, to our monolingual judges and law clerks.” This same concern was also voiced during the congressional hearings about the Feeney resolution and in Justice Scalia’s speech to the American Society of International Law. Again, this is not the debate that Tushnet is referencing: Tushnet references a debate about the propriety of transnational law ever being used, and a debate that is really just a charade, when the real debate is about originalism. In contrast to this argument that the debate is all about originalism, this argument about selective use of transnational materials is valid, serious, and independent of concerns about originalism. It is also a debate more about how using transnational law would work in practical operation. 115. Scalia, supra note 56, at 309. 116. Posner, supra note 65, at 41. 117. Ramsey testimony, supra note 61, at 1–3. 118. Scalia, supra note 56, at 309 (noting problems with selectivity of Court decisions as to when they use transnational law at all and what transnational law they use). 119. This is not to deny that the debate about originalism is a central part of the debate about transnational law. See generally id. There is just more to this debate than traditional debates about constitutional interpretation. 120. Critics of the use of transnational law have made other objections that seem to be determinative (i.e. not next generation debates), but these objections are not ones that many take seriously. Judge Posner, for example, recently commented: This brings me to the third problem, which is the undemocratic character of citing foreign decisions. Even decisions rendered by judges in democratic countries, or by judges from those countries who sit on international courts, are outside the U.S. democratic orbit. This point is obscured because we think of our courts as “undemocratic” institutions. But that is imprecise. Not only are most state judges elected, but federal judges are appointed and confirmed by elected officials, the president, and the members of the Senate. So our judges have a certain democratic legitimacy. But the judges of foreign countries, however democratic those countries may be, have no democratic legitimacy here. The votes of foreign electorates are not events in our democracy. Posner, supra note 65, at 42. I address this argument in a work in progress, but suffice it to say, it is hard to say how these concerns are fully valid. DAVID_FONTANA_PRINTREADY_032405.DOC 3/28/2005 9:50:58 AM