States Reassert Constitutional Authority Over Judicial Process
Legislators in multiple states are moving forward with what they call American Laws for American Courts measures. The proposals are straightforward on their face: prevent foreign legal systems, international treaties, and unelected global bodies from having any authority over state judicial proceedings or the interpretation of state law.
On the surface, this sounds like it should be unnecessary. The Constitution is the supreme law of the land. Federal judges take an oath to defend it. State courts operate under state constitutions that derive their legitimacy from state sovereignty and the consent of state voters. Foreign law should not apply in American courts.
But the legislation exists because it has happened.
The Problem in Practice
Courts have cited international law, foreign legal precedents, and United Nations human rights findings in decisions affecting American citizens. A state court considering parental rights, for instance, might reference how another country's courts have handled similar custody disputes. A judge interpreting a state's own constitution might look to how international bodies have addressed comparable questions. This is presented as comparative analysis, judicial craftsmanship, intellectual exchange among learned judges worldwide.
To supporters of these state bills, it is something else: outsourcing constitutional interpretation to people who did not take an oath to defend the American Constitution and do not answer to American voters.
The concern is not theoretical. It is institutional. A federal judge citing international consensus on human rights interpretations is importing a standard of legitimacy that does not rest on the Constitution or on American law. That judge is saying, in effect, that what matters is not what the Constitution says but what foreign courts and international bodies think it should mean. That is a transfer of authority from the constitutional document itself to an external standard.
Sovereignty and the Judicial Function
States arguing for these measures contend that judicial power is derivative from the people and their law. A state judge interprets the state constitution because the people of that state adopted it and the state legislature, representing the people, structured the courts. That judge has no authority over the people of France or the United Nations or the International Criminal Court. Conversely, none of those bodies has authority over that judge.
When a state court invokes foreign law as persuasive authority, it is saying that international legal thinking has a seat at the table. That is not an exchange between coequal legal systems. It is a hierarchy. American law sits at the bottom, constrained by what enlightened foreign judges and international bodies have decided. This runs backward from how American federalism is supposed to work.
The legislation typically includes narrow carve-outs. It does not prohibit a lawyer from citing foreign law if both parties consent. It does not prevent a court from consulting international sources if the state constitution explicitly allows it. It does not block the application of treaties that the United States Senate has ratified. These measures are about preventing the importation of foreign legal authority through the back door of judicial discretion.
What Happens Next
These bills face two barriers. The first is political. Legislators who see themselves as cosmopolitan, who prize international engagement, or who worry about how foreign governments might perceive American courts may resist them. Federal judges and law professors often oppose such measures, arguing they limit judicial reasoning and America's engagement with global legal thought.
The second is constitutional. If a bill passes and a state court applies it, a losing party may challenge it in federal court, arguing that it violates the First Amendment (judges' right to consider relevant authority), the Due Process Clause, or some other federal guarantee. Federal judges, the very people these bills are designed to constrain at the state level, will decide whether states can constrain themselves.
That is the structural problem these measures highlight. States cannot constitutionally prevent their own courts from invoking federal law or federal constitutional authority. But the inverse should be true as well: if a state wants to prohibit its own courts from adopting foreign law as binding authority, that is a choice about state sovereignty that should belong to the state.
The Accountability Question
The deeper argument here is about accountability. An American voter can throw out a state legislator who passes a law the voter dislikes. That voter can organize against the governor. In a primary or general election, voters can make themselves heard. They cannot vote out a foreign judge or reform the United Nations. They have no remedy if an international body's thinking seeps into American judicial decisions through the discretionary choices of American courts.
If an American judge decides to constrain herself by the Constitution and American law alone, she is choosing a method of reasoning that voters can understand and contest. If she decides to import foreign legal standards without explicit democratic authorization, she has taken a step away from accountable government and toward governance by an appointed elite consulting standards that ordinary citizens did not authorize.
These bills are not radical. They are states saying: our courts are accountable to us. We set the boundaries of judicial authority. And those boundaries stop at the water's edge.
Watch the bill numbers in your state legislature. If such a measure is introduced, ask your representative where he or she stands. These arguments about sovereignty are not academic. They are about who gets to decide what your courts apply when they decide cases involving your family, your property, and your rights.
