States Assert Judicial Independence from Foreign Legal Frameworks
A growing number of state legislatures are moving to explicitly prohibit their courts from applying foreign legal systems or international legal principles in judicial decisions. The push reflects a broader constitutional concern: that American courts must answer only to American law, made by American voters through their elected representatives.
The mechanics of this threat are less obvious than they seem. Federal courts already operate under the Supremacy Clause, which makes the U.S. Constitution and federal law the supreme law of the land. State courts have their own constitutions and statutes to interpret. The concern animating these legislative efforts is more subtle—and more institutional.
When a court cites foreign law or international legal norms to interpret an American constitutional provision, it does two things. First, it imports judicial reasoning from a jurisdiction the American voter cannot elect, cannot hold accountable, and cannot remove. Second, it treats principles developed in foreign political contexts—sometimes radically different from American federalism, property rights, or religious liberty—as persuasive authority for decisions binding on Americans.
Consider a straightforward example. A state court interpreting the Second Amendment might cite decisions from Canada or Australia to argue that gun restrictions align with international norms. But those norms reflect the constitutional frameworks and political pressures of those nations, not the written text of the American Constitution. An American court should answer to American voters, not to what seems reasonable in Toronto.
Why This Matters for Federalism
State legislatures occupy a critical position in the American constitutional order. They are closer to voters than Washington. They respond faster to local conditions. And they retain powers the federal government does not. When a state legislature passes a statute governing its own courts' authority, it is doing exactly what the Tenth Amendment contemplates—exercising a power reserved to the states.
The measures being proposed typically operate in one of two ways. Some states are drafting language that directs their courts to apply only the text of the U.S. Constitution, state constitutional provisions, and applicable statutes. Others are taking the additional step of explicitly prohibiting courts from citing foreign law or international legal principles except in narrow, factual contexts—such as determining whether a foreign judgment is enforceable in an American court.
The distinction matters. A court interpreting contract law in a commercial case might need to know what Swiss law says about certain transactions—that is a factual question about a foreign legal system, not an adoption of its principles. A court interpreting the First Amendment has no legitimate reason to ask what European courts think about religious liberty. The two questions are not the same.
The Accountability Problem
Here is the core issue. When an unelected judge applies a legal principle from abroad, the voter who disagrees with that decision has no recourse. That voter did not elect the foreign court. That voter cannot recall the foreign judge. The foreign legal system answers to different constituencies, different political pressures, and sometimes fundamentally different constitutional principles. To import those principles into American law is to make American citizens subject to legal reasoning developed by institutions they do not control.
Federalism is supposed to solve this problem. When you disagree with how your state interprets state law, you can work to amend the state constitution or elect legislators who will change the statute. When you disagree with how a state interprets the federal Constitution, you still have recourse—you can work to amend the federal Constitution or elect a president who will appoint judges who read it differently. Neither remedy is easy, but both remain theoretically available within American institutions.
Importing foreign law removes that lever. It makes American constitutional interpretation subject to judicial reasoning from jurisdictions where American voters hold no power.
What Legislators Are Actually Doing
The legislative proposals vary by state. Most focus on directing courts to restrict citation of foreign law to appropriate factual contexts. Some go further, establishing that when a court does need to reference foreign legal principles, that citation must explain why it is necessary and must not supersede American constitutional text or statutory language.
None of these measures prevent courts from studying how other nations have addressed similar legal questions. A judge can learn from comparative law. What these statutes do is prevent that foreign law from becoming binding or persuasive authority in a decision affecting American citizens under the American Constitution.
The proposals also typically preserve a court's ability to enforce foreign judgments through established comity—the legal courtesy that allows an American court to recognize a foreign court's authority over a transaction or dispute that properly belongs in that foreign jurisdiction. A judgment from a British court in a contract dispute between British parties does not change because Arizona law says Arizona courts must apply American law to Arizona constitutional questions.
The Practical Stakes
State legislatures understand that judicial philosophy has shifted in ways that make foreign law citations more common than they once were. Some American judges and legal scholars have argued that the U.S. Constitution should evolve in light of international norms and global legal trends. That argument has real adherents in the judiciary. The state legislative response is to say: not in my state, not on my dime, not over my voters.
That is not judicial restraint. It is legislative defense of the boundaries that make federalism work. When a state restricts its own courts to American law, it is not attacking judicial independence. It is protecting legislative authority and voter sovereignty. A court that must answer to American law is more accountable than a court that can range freely through the world's legal systems looking for principles that support a desired outcome.
What Comes Next
Watch your state legislature. If a bill arrives that directs your courts to apply American law to American constitutional questions, read it carefully. The language matters—overly broad prohibitions can create their own problems. But the core principle is sound. American courts should answer to American law made by American voters. That is not judicial activism. That is federalism.
Check your state legislator's position on this issue before the next election. Some will support the measures. Others will argue that courts need flexibility, that comparative law is valuable, that American law benefits from global legal reasoning. Listen to both sides. Then decide whether you want your court bound by what your vote can reach, or whether you want judges free to wander the world's legal systems in search of authority that suits them.
Your answer determines what kind of government you have. A government that answers to you, or one that answers to itself.
