Right. So how is that different than a justice looking at the phrasing of, say, the Australian constitution (a document that was based in large part on the US constitution) for the interpretation of similar language, like due process?
If your answer is that the Australian constitution was written in 1900, and thus the US Constitution wasn't based on it, I think it's hard to make that argument, because the founders clearly rejected a MAJOR premise of the common law when drafting the constitution; that is, that parliament can override the common law. I don't think you can compare the common law to the constitution because the common law wasn't binding on parliament; the constitution is.
The British common law of free press at the time of the adoption of the constitution meant that you didn't have to get a license from the government to print your newspaper. The government can and did punish for printing certain things. But I think it's pretty clear that the founders, with the first amendment, intended to protect against more than just licensing--indeed; the uproar surrounding the Sedition Act of 1798 indicates this.
Again, I don't have a problem with Scalia citing foreign sources. But then again, I don't have a problem with consideration of foreign sources at all. I think it's legitimate to look at how others deal with problems. I don't think we should go through life with blinders on just because we didn't think up an idea. I think the problem comes in when people begin to rely on foreign law as somehow binding.
There is a difference and a distinction.
Scalia does not use the mores or laws of other countries to cherry pick what he likes and dislikes. He does use foreign law when he adjudicates treaties. He also uses English common law when English common law phrases are part of our Constitution.
The activists use it to justify their attempt to set the mores for the nation but only when it accrues to their benefit.
For instance, Britain does not have an exclusionary rule. You will never see Kennedy and friends cite to that. Britain does not have rules preventing double jeopardy, they will not cite to that. Britain does not use trial by jury in many cases, they use magistrates. Why no cite to that. All of Europe has laws restricting abortion post viability, seen any of Kennedy and his pals citing to that?
You need to ask yourself a couple of questions. First, do you want to be governed by the laws of foreigners? If you don't want foreign laws to be authoritative then what is the sense in citing same?