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Monday, February 06, 2012

More on the "Declining Influence of the U.S. Constitution"

Adam Liptak's latest Sidebar column in the New York Times spotlights a forthcoming article by our friends David Law and Mila Versteeg, "The Declining Influence of the United States Constitution."  The article, as described by Liptak, provides the results of a comprehensive study showing the declining influence of the American Constitution as a model for drafters of constitutions in other countries.  This will not be a surprise to those who have studied constitutional law elsewhere and read at all in the field of comparative constitutional law (which is no knock against the study; there's a difference between 'knowing' something and proving it), but it may still be of interest and even surprise to others.  I certainly look forward to reading the study.

It's worth emphasizing that one needn't feel one way or another about this.  I don't see this as either a good or bad thing--unless, I suppose, like Sandy Levinson, one has given up on the American Constitution itself and is looking for some fresh drafting advice.  Liptak, in his opening sentences, paints the story in mock-epic terms by writing, "The Constitution has seen better days," but that strikes me as a needless flourish.

Another interesting question is one David Law asked, somewhat archly, in a comment to my earlier post about Justice Ginsburg: "What does this mean for Comparative Constitutional Law as a discipline? Will people start paying attention to constitution-writing instead of just constitutional interpretation now? Or is that too much to hope?"  It seems to me that paying attention to constitution-writing is a perfectly sensible thing to do.  I see no reason for it to take up a huge amount of attention among domestic constitutionalists in the United States, since so much of the day-to-day enterprise has clearly shifted from that field, but it obviously has many virtues of its own as an area of study.  As for what it means for comparative constitutional law as a discipline, I should think, not much, except that the Americans engaged in the field would be well advised to 1) start learning languages and 2) get a larger research and travel budget.  

It's also worth noting the degree to which Liptak's story mixes and matches questions about constitution drafting with questions about constitutional jurisprudence.  I'm not singling him out; this is not uncommon.  But starting from the Law and Versteeg study, he then goes on to cite various usual suspects arguing (correctly) that the influence of American constitutional law has declined abroad: it "is losing the central role it once had among courts in modern democracies" [Aharon Barak], and risks "becoming something of a legal backwater," according to Australian High Court Justice Michael Kirby.  

Again, I don't see huge cause for lament about this, except on a personal level: one of the reasons for this decline is the increasingly insular originalist tilt of American constitutional interpretation, and I am not a committed originalist.  Still, the decline of American influence in foreign countries' constitutional law does not tell us much about how well American constitutionalism is faring in the United States itself.  I do think there are problems with insularity leading us to ignore valuable evidence and resources as we go about doing constitutional law, but the question is what kind of evidence best serves this enterprise.  Posner-like, I doubt the best resources are judicial opinions, foreign or domestic. We would, I think, be better off looking at foreign or domestic empirical work and work on public policy and social sciences than trolling through another set of case reporters.  There is some question, given the seeming insularity of American judicial opinions, how much the courts make use of this material (although they are more than happy to criticize scholars for not doing their doctrinal work for them). But my sense from surveying both American and foreign legal scholarship is that much more work of this kind makes it into American legal scholarship, and legal argument before the courts, than it does into foreign law journals, which are mostly either doctrinal or theoretical in approach.  By being more welcoming toward comparative constitutional law, those foreign courts and scholars may be drawing on a larger body of water, but it's also a fairly shallow one.

Two last observations. First, Barak (who is an important and delightful man, currently visiting with us at Alabama), in the Times story, praises Canadian law "as a source of inspiration for many countries around the world."  As a Canadian, trained in Canadian constitutional law, I'm happy to give a thumbs-up to the old home team.  But it's worth noting that Canadian constitutional jurisprudence in the post-Charter era observed something of a trend: with its cupboards bare, it began by relying heavily on American constitutional jurisprudence, and gradually departed from that reliance as 1) it became clear that local text, values, or traditions dictated otherwise and 2) the Canadian courts eventually grew enough jurisprudence of their own to make it less necessary to draw on American law. If comparative constitutional law is to become truly comparative, and not just redundant--if it is to show signs of responding to varying traditions and needs in different countries--then one would anticipate, and even hope, that eventually those countries too will gradually draw more from their own well than from Canada's.  Its constitutional text itself may have been an important influence, but comparative constitutionalists who are thnking about the long run ought to be asking, in a favorable way, when Canadian constitutional jurisprudence will cease being an influence abroad, because that influence is no longer necessary. (A caveat to this is that some writers, including Barak, David Beatty, and some others, think that comparative constitutionalism can unlock a general template or even set of answers for global constitutionalism, a general approach to human rights, and so on. They're wrong.)

Second, I can't help but note, as I have here before, a growing interest in originalism among a rump (but they're a good rump!) group of Canadian constitutional scholars.  Those who worry that the American obsession with originalism has led to its courts' declining influence abroad may content themselves with a little patience and the thought that what goes around comes around. 

Posted by Paul Horwitz on February 6, 2012 at 04:02 PM in Paul Horwitz | Permalink


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Regarding " ... a growing interest in originalism ... " I just finished reading Saul Cornell's "The People's Constitution vs. The Lawyer's Constitution: Popular Constitutionalism and the Original Debate over Originalism" that does a fandango on originalism. A link to Prof. Cornell's article is available at the Originalism Blog. Here's Cornell's closing sentence as a tease:

"If Originalism is to become a serious intellectual enterprise, and not simply remain an ideological tool, it must cease to be a conversation among a narrow group of true believers and must become truly inter-disciplinary."

Posted by: Shag from Brookline | Feb 8, 2012 6:29:17 AM

Amen to the bigger research and travel budget. Too true to be entirely tongue-in-cheek. Comparative work isn't cheap or easy. 高いです. Then you also have to find the sheer time to do fieldwork too. But it's for precisely for that very reason that there are so many stones left unturned. Similar point might be made of empirical work: lots left to say, precisely because there are skill-based barriers to entry.

Posted by: David Law | Feb 7, 2012 11:24:11 PM

I would add the observation that both Barak and Kirby are regarded as lefties, and their jurisprudence envisions an aggressive judicial role. Given the retreat of US constitutional law from the Warren Court era, it is unsurprising to discover these two judges in particular find less to draw upon in modern US constitutional law. I don't mean this as a criticism of either modern US constitutional law or the two judges, but rather to point out that another reason for the distance may be because there are fewer shared values than previously.

Posted by: TJ | Feb 6, 2012 8:10:32 PM

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