Would Elena Kagan Use Foreign Law to Interpret Our Constitution?

In 2004, Elena Kagan spoke at a conference sponsored by Lex Mundi[1], where she emphasized the importance of international and comparative law in the curriculum of law schools, and recommended that law schools bring more visiting foreign professors to their faculty.[2]  “They will help to make American students aware that there are many different ways of solving legal problems and of using law to shape public life,” she said.[3]

While increasing law students’ awareness of the laws of other countries is not wrong, favoring international law as a means to “shape” American jurisprudence is problematic.  Kagan should be questioned as to whether she emphasizes comparative and international law merely to inform law students that “many different ways of solving legal problems” exist around the world, or if she believes lawyers and judges should be trained to use international and comparative law as one way “to solve legal problems” within the U.S.

Kagan’s emphasis on international and comparative law presents yet another similarity to her “judicial hero,” Judge Aharon Barak.  In his book, The Judge in a Democracy, Barak dedicates an entire chapter to discuss the significance of comparative law.  There, Barak states that comparative law is an “important tool” to enable judges to “fulfill their role in democracy.”[4]  Does Kagan consider comparative law an “important tool” for a judge?  If so, how is it to be used?  While dean of Harvard Law School, she viewed comparative law as important enough to support requiring law students to study it.

Barak also writes: “Comparative law is a tool that aids in constitutional and statutory interpretation… [and] helps the judge better understand the place of interpretation and the role of the judge as an interpreter.  With comparative law, the judge expands the horizon and the interpretive field of vision.”[5]  Would Kagan include comparative law in her “interpretive field of vision” as a Supreme Court Justice?

Aharon Barak, Kagan’s “judicial hero,” says: “Before judges decide their own positions on the issue, they would do well to consider how other legal systems treat the question…[C]omparative law can help judges determine the objective purpose of a constitution.”[6]    As a Supreme Court Justice, would Kagan rely on comparative law to interpret our Constitution?

Barak goes so far as to say that even in the absence of a direct influence of one constitutional text upon another, there still exists “a basis for interpretive inspiration.”[7]  He gives an example of where this interpretation would be proper: to determine “the scope of human rights, resolving particularly difficult issues such as abortion and the death penalty, and determining constitutional remedies.”[8]  In other words, Barak is arguing that judges should look to foreign countries’ constitutions to determine how to rule on important issues, like abortion, under their own Constitutions.  Would Kagan rely on foreign constitutions to “inspire” her judicial opinions on issues like abortion under the U.S. Constitution?

Barak regrets that judges in the United States have made little use of comparative law.  He urges them to do so.  If confirmed, would Kagan follow Barak’s advice?


The importance Kagan placed on incorporating international and comparative law into Harvard Law School’s curriculum suggests that Kagan may discount the principal role our Constitution holds in American jurisprudence.[9]  Her admiration of Judge Barak, whose judicial philosophy welcomes comparative law in judicial decision-making, raises further concern that Kagan may embrace comparative law as a method of interpreting the Constitution.  During Kagan’s confirmation hearings, the Senate needs to question deeply Kagan on her view of the role international and comparative law play in a justice’s judicial opinions and in the interpretation of the U.S. Constitution.

[1] Lex Mundi is an organization focused on the local and global practice and development of law.

[2] This speech may be found in the compilation of Kagan’s lectures and speeches put together by the Judiciary Committee at http://judiciary.senate.gov/nominations/SupremeCourt/upload/12D-Part3.pdf.  See also Kagan’s 2008 John W. King Memorial Lecture at the New Hampshire Supreme Court, which also may be found at http://judiciary.senate.gov/nominations/SupremeCourt/upload/12D-Part3.pdf

[3] http://judiciary.senate.gov/nominations/SupremeCourt/upload/12D-Part3.pdf (emphasis added).

[4] Barak, Aharon, The Judge in a Democracy, New Jersey: Princeton University Press, 2006: 197.

[5] The Judge in a Democracy, 197.

[6] Id., 197-198.

[7] Id., 201.

[8] Id., 201.

[9] http://judiciary.senate.gov/nominations/SupremeCourt/upload/12D-Part3.pdf

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