A few months ago, I noted that the usage of foreign law in American judicial opinions actually has rather deep roots in American jurisprudence, stretching back to the founding generation. Since then, I've only seen evidence supporting that view:
Under an originalist approach, a good deal of evidence demonstrates that at the country's inception, discussion of law from elsewhere was commonplace....Critics of the contemporary use of foreign law sometimes reply that foreign sources were not used to interpret the meaning of the Constitution. Defenders respond that (1) as an empirical matter, citations in cases prove otherwise; (2) in early periods, the Court did less constitutional interpretation; and (3) the line between common law and constitutional interpretation was not sharp. [Judith Resnik, Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry, 115 Yale L.J. 1564, 1568-9 n.7 (2006)]
I'm not an originalist, so in that past post I gave my own independent reasons for allowing citation to foreign cases. But I'm curious how self-described originalists make their case. There may well be solid reasons for opposing foreign law citation, but they are the type of objections that originalists would normally tag as fundamentally policy questions (e.g., it undermines the democratic process because we don't vote for foreign judges). Were I to use their rhetoric, I could very easily respond to a Scalia acolyte
"Sure, citation to foreign law may be suspect as a matter of good policy, but it's been well established since the time of the founding that this sort of interpretation is permissible. What grounds do we have to say it's illegitimate now?"
Now, one could respond that judges should use their discretion and refrain from using these sources even though they theoretically could. But that doesn't seem to be the objection of Scalia and his ilk. They say that this sort of usage is not just wrong, but illegitimate (Paul Mirengoff said it was grounds for impeachment). How is that defensible on originalist grounds?
I ask any originalist readers of the blog (this seems right up Southern Appeal's alley) for an answer to this truly vexing question.