[T]he Court has relied on such sources to some extent throughout its history. Second, the Court has...cited foreign sources of law with much more frequency in far more important constitutional cases in recent years...and in addition the Court has tended to cite foreign sources of law in some of its most problematic opinions such as Dred Scott, Reynolds, and Roe v. Wade....Third...citation to foreign law is most justifiable when the U.S. Constitution asks the justices to weigh whether a certain practice is reasonable, as it does in the Fourth Amendment, or whether it is unusual, as it does in the Eighth Amendment. [It] is least justifiable when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence, or whether a federal statute violates American federalism rules, as it was asked to do in Printz v. United States.
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