Comparative Law in the Modalities of Constitutional Argument

In recent years there has been considerable controversy, perhaps best exemplified in a famous Conversation between Justices Scalia and Breyer, over whether it is appropriate for American courts to consider foreign law when deciding constitutional questions. This Article uses the system of modalities of constitutional argument described by Professor Philip Bobbitt to argue that there is no unitary answer to that question. Foreign law is of no relevance in making historical or doctrinal arguments, but is potentially of great relevance in making prudential ones, while its potential use in making textual, structural, or ethical arguments is considerably more complicated. Thus, a constitutional ideologue like Justice Scalia, who denies the legitimacy of certain modalities, may well find no place for foreign law in American courts. However, anyone who accepts Professor Bobbitt's view that all six modalities are legitimate should conclude that, if only for certain purposes, comparative law can play a legitimate role in constitutional decision-making.