Jack’s got it right when he writes: ” Don’t assume that living constitutionalism only swings to the left. It doesn’t.” And that’s a lesson that extends beyond the question of whether today, 217 years after ratification, the 2d Amendment to the U.S. Constitution includes an individual right to keep and bear arms. It applies as well to the consultation of foreign and international law and context in the course of interpreting open-textured constitutional terms such as ” due process ,” ” unreasonable searches and seizures ,” or ” cruel and unusual punishments .” Critiques of consultation frequently have come from Justices and jurists toward the right of the spectrum. Yet as I’ve noted here (p. 1334 n.107), some of those Justices themselves have cited such sources, to support refusals to recognize a constitutional right to assisted suicide , and to limit rights related to abortion .
In short, consultation of foreign or international sources will not inevitably nudge interpretation of a constitutional term to the left or to the right – any more than would consultation of historical context or contemporary legal practice in the United States. That fact counsels shifting away from blanket condemnation of foreign consultation, and toward demands that it be conducted with no less methodological rigor than is expected in historical exegeses and 50-state surveys.
* Here’s Mr. Dooley on interpretation: “I niver r-read th’ constitootion an I niver seen anny wan that r-readit, but it must be all right, for an’ because ‘twas made wan hundherdyears ago or more be min that is now dead an’ in their graves. … Could thim pathriots do wrong? Did they know what was best f’rus afther fightin’ f’r our liberties? I should smoke a ham.”