The Supreme Court of the United States has turned to foreign and international law in recent major cases, but many critics question bringing other country’s law into the United States’ constitutional jurisprudence.

Professor John McGinnis, an international and constitutional law scholar from Northwestern Law School debated the issue with UF Law’s Professor Winston Nagan on Wednesday. The Federalist Society sponsored the event.

McGinnis started the debate off by bringing up the court’s use of foreign law in Lawrence v. Texas, which gave citizens the right to consensual homosexual intercourse. McGinnis argued even if the court does not entirely base its decision on international standards, it’s still inappropriate for the court to give international and foreign law any weight.

“It’s sometimes said for defenders of the use of international law that of course propositions have no authority because the Supreme Court isn’t treating them as binding,” he said. “But that seems to be a non-sequitur. Supreme Court precedent to bind the Supreme Court isn’t really binding because it may be overruled and no one doubts that precedent has authority in constitutional law. The real question is whether propositions of international and foreign law are given any weight, whether their existence makes a difference in how the Court comes out.”

While using international law to interpret the U.S. Constitution has become more controversial lately, Nagan argued that the Supreme Court has used international sources since the Constitution was written.

“The pedigree of applying international law in the Supreme Court is very well established, traditionally,” he said.

Nagan reviewed Supreme Court cases from 1789-1820 and found literally hundreds of cites, references and quotes of international authors and judges. Also, in 1900, the Supreme Court decided The Paquete Habana, a landmark case that used customary international law to decide that fishing boats cannot be captured.

McGinnis made two arguments as to why international and foreign law should not be used to interpret the U.S. Constitution: an originalist argument and a pragmatic argument. Originalists would be opposed to using international and foreign law because it is contemporary he said.

Pragmatically, using international and foreign law is wrong is because there is a lack of democracy. McGinnis said authoritarian states having an effect on American law is troublesome. Also, he argued that other countries’ laws would affect ours, albeit marginally.

“There’s not really much reason why international law is likely to be good for the United States because it has a substantial democratic deficit,” he said. “Our laws are made democratically and that’s an advantage for them. International law, however, reflects the consent of nation-states in the world, not some global democratic behemoth.”

Nagan argued against the originalist view of the Constitution.

“One of the problems with the originalist view of the Constitution is that the Constitution doesn’t come with a prepackaged framework of constitution-mandated rules of procedure… It assumes that there is ambiguity, there is no incompleteness and that the terms in the Constitution were absolutely clear.”

McGinnis countered with the Supremacy Clause of the Constitution.

“The Supremacy Clause tells us what’s supreme,” he said. “Treaties are supreme, statutes made in pursuance of the Constitution are supreme. What’s not listed there is customary international law. So I don’t see that the Supreme Court in striking down a state statute has any textual warrant actually to use international law to strike down a statute.”

When a student asked about the Constitution being written well before what the United States has become and therefore not democratically, McGinnis admitted that is the toughest question for originalists to answer. However, he argued it was still more democratic than allowing foreign law to influence ours.

“The question isn’t how perfectly democratic the original Constitution was but how democratic it was compared to the process of making international law, which I think is much less democratic with the influence of authoritarian states,” he said.