The proper role of international law in domestic constitutional adjudication is a hot issue in legal circles and beyond, particularly in light of attacks on an "activist" judiciary, presently the fad among pundits, politicians, and pulpitarians. While the contest has been simmering for years in Congress, on the Court, and among academics, the top blew off the pot during the 2003 and 2004 Supreme Court terms "[w]hen [Justice] Kennedy, who's hardly a liberal, started citing these international sources . . . [and] the subject exploded in the broader political world."

It is no surprise to his fans or critics that Justice Scalia has been at the front of this contest. In written decisions, public speeches, and an unprecedented debate on the topic with Justice Breyer, Justice Scalia has drummed a regular beat against the use of contemporary foreign law materials when interpreting the Constitution. This Article provides a critical exegesis of his position and argues that, in a narrow set of constitutional cases, including those implicating the Eighth Amendment prohibition against cruel and unusual punishment, Justice Scalia, as an originalist, ought to refer to contemporary foreign sources...