2008] The Minimum Core of Economic and Social Rights 147 exceptional in its commitment to consen sus is a matter of debate because the tension between the democracy-overriding self-restraints presented by ri ghts on the one hand, and democracy itself on the other, is unavoidable for all constitutional democracies.196 This brief survey of the role of cons ensus as a norm i n both systems of law would be incomplete without ackn owledging the alternative status of consensus as an operational guide for other norms, rather than a norm for its own sake. In this view, the i mportance of cons ensus is due, not to it s connection to the self-rep resentation of the units expressing agreement, but rather to its ability to assist in the de termination of normative principle. Here, consensus (and particularly internatio nal consensus) is im portant because it reveals the normative standards that evolve with reason. It is this use that Jeremy Waldron advocates in extolling the Supreme Court’s use of international law in Roper v. Simmons . 197 Consensus here harkens to the international law of the past and its aim to represent the “common law of mankind.” These principles—captured by the traditional concept of the law of nations, or ius gentium—reflect the common agr eement on pri nciples of (domestic) law which are demonstrated by the work of judges, jurists, and 198 Because the relevant lawmakers from different parts of the world. consensus remains incomplete and must be supplemented by a sense of justice to guide newer norms (a sense itself informed by the charact er of the consensus), the approach depends u pon a reflective equ ilibrium between natural and positive law. 199 This equilibrium differs from the “overlapping consensus” of moral principles discussed in relation to the Essence Approach, precisely because of its connection to positive law. For Wa ldron, consensus points to “a set of endur ing intermediate principles that one might use as touchstones for real-world legal systems.”200 C. The Limits of Consensus Whether necessary for sovereignty and self-government on the one hand, or for principled l egality on the other, the Consensus Approach to the minimum core is beset by several limit ations. In brief, t he approach fails because it makes legitimate only th e lowest common denominator of international protection, a pr oblem exacerbated by the relative dearth of explicit pronouncements on what the mi nimum formulations of economic and “internationalist constitutionalism” of Europe, which “is based on . . . universal rights and principles that derive their authority from sources outside of or prior to national democratic processes”). 196. E.g., Holmes, supra note 179, at 222-24 (prese nting the inevitable ch allenge for binding the hands of sovereignty, described by JON ELSTER, ULYSSES AND THE SIRENS 94 (1984)). 197. 543 U.S. 551 (2005); see Waldron, Foreign Law and the Modern Ius Gentium, supra note 162. But cf. Ernest A. Young, Foreign Law and the Denominator Problem , 119 H ARV. L. REV. 148 (2005) (criticizing as illegitim ate the “swelling of the denom inator” that underlies a justification based on international consensus). 198. Waldron, Foreign Law and the Modern Ius Gentium, supra note 162, at 132, 133, 137 (using the law of nations—the ius gentium—to encompass a m ore comprehensive m eaning than, for example, customary international law or federal common law). 199. Id. at 136 (citing RAWLS, supra note 74, at 48-51). 200. Waldron, Foreign Law and the Modern Ius Gentium, supra note 162, at 134 (citing S T. THOMAS AQUINAS, SUMMA THEOLOGICA Pt. I-II, Q. 95, Art. 4, Reply I, at 298 (R.J. Henle trans., 1993).