The morning plenary panel at the Federalist Society's annual lawyers' convention concerns "he Constitution & American Exceptionalism: Citation of Foreign Law." First up is Georgetown University law professor Nicholas Rosenkranz who lays out the basic case against relying upon foreign or international law in constitutional interpretation. Rosenkranz makes several points (and my summary us unlikely to do justice to his remarks). The Constitution, he notes, draws its legitimacy from the consent of the governed and the American Revolution was motivated, in part, in opposition to the imposition of foreign rule on the colonies. Thus it would be quite incongruous for the meaning of the Constitution to be dependent upon the decisions and views of foreign governments or international institutions, rather than the considered views of the American people. Changing the meaning of the Constitution, Rosenkranz notes, is to be done through constitutional amendment, not the changing conceptions of justice embraced by foreign governments and international organizations.

The most interesting part of Rosenkranz's remarks is a proposal for a constitutional amendment declaring that foreign and international law should not be relied upn to interpret or construe the U.S. Constitution. At one level this is quite a radical proposal — perhaps killing a gnat with an elephant gun, Rosenkranz acknowledges — but Rosenkranz offers a few reasons why such an Amendment would be quite in line with the American experience. First, Rosenkranz notes, there is precedent for amending the constitution with rules of constitutional construction. Both the 9th and 11th Amendment are, by their own terms, rules of interpretation, explaining that the Constitution should not be interpreted in a particular fashion. Further, Rosenkranz observes, both Amendments stated interpretive rules that (at least many of) the Founders believed should have gone without saying. They reaffirmed the prevailing understanding of the constitutional text more than they amended it (though the 11th Amendment also overturned a Supreme Court opinion adopting a contrary view). There should be little doubt, in Rosenkranz's view, that the Founders would have also disapproved of relying upon foreign law in constitutional interpretation. So such an amendment would help reinforce, or perhaps restore, an original understanding of the Constitution, and reinforce the idea that the American Constitution as the ultimate expression of the will of the American people.

Now I don't for a minute expect such an amendment to pass — nor, do I suspect, does Professor Rosenkranz. Yet if reliance upon foreign and international law in constitutional interpretation is wrong, as Rosenkranz argues, there is nothing particularly incongruous about saying so in the Constitution. His is an interesting proposal that may help inform discussion and debate over the role of foreign law in constitutional interpretation.