Comparative Constitutional Law, “Exceptionalism,” and “Originalism”

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7 Responses

  1. Mark Knights says:

    Are Justice Ginsburg’s lectures available anywhere, in written or recorded form? They sound very interesting — did she examine all three topics from the perspective of comparative constitutional law? With dissents in particular, I’m sure there’s fertile ground for an interesting lecture given that courts in many countries issue only unanimous opinions.

  2. Chris says:

    Australia’s High Court has articulated a sophisticated form of originalism. Ex Parte Professional Engineers’ Ass’n, 107 C.L.R. 208, 267 (1959): “We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes.” See also here at 576-79.

  3. Mike Zimmer says:

    I don’t think there is any record of her lectures. She focused on US constitutonal law, though she did allude to some developments elsewhere several times.

  4. Alternatively, you might consider that our Constitution has been in effect for much longer than most. As a consequence of this, there’s been more time for conspicuous divergences between text and judicial doctrine to arise. In the absence of such divergences, you don’t need an explicit “originalism”.

    You’re not going to get an originalist movement in a country with a young constitution; They’re still AT their “origin”, originalism is the water they swim through, and never notice.

  5. A.J. Sutter says:

    Nice post. Concerning originalism and countries with young constitutions, it’s not at all correct to generalize that “originalism is the water they swim through.” Some of those countries, e.g. Germany and Japan, had other constitutions before their present ones (Weimar and Meiji, respectively). Both of those countries, in particular, have quite different societies from those they had at the end of WWII, when their current constitutions were written — a fact that makes for a huge debate currently in Japan. Moreover, both of those countries, among others, have histories many centuries longer than America’s; this history certainly informs the interpretation of the Grundgesetz, e.g. in the understanding of its religion clauses. I think the explanation of US “originalism” as arising from political motivations is far more convincing.

    I’m less sure what the content of “exceptionalism” is. It seems to mean that the US demands the right to exercise hegemonic power over other countries, to ignore norms of public international law, and to deny accountability therefor. Exceptionalism also seems to be invoked when the US protection of individual human rights, including for the health, safety and welfare of its citizens, falls below standards or trends in other developed democracies. That’s not to say that the US doesn’t sometimes meet or even exceed such standards, but rather that when it does exceed them, it’s not regarded as exceptionalism (possibly aside from when individuals’ economic rights are involved).

  6. A.J. Sutter says:

    PS, concerning judicial review: The example of Japan shows that having a judicial review provision in the constitution is not sufficient to avoid insecurity with judicial review. On several occasions, the Japan Supreme Court has found that elections for the national legislature were unconstitutional. (Usually these were controversies involving violations of the one-person, one-vote principle under the Public Election Law.) But on every occasion it has refused to set the elections aside, saying that it was a matter for the political branches. Similarly, any law that the Supreme Court holds to be unconstitutional isn’t held to be null and void, but merely inapplicable in the specific case at issue. The legislature is expected to fix it, if it wishes.

    Some scholars have suggested that this deference to the legislature is similar to the practice of the Great Court of Judicature under the Meiji Constitution. If so, then considering that the current constitution was drafted by the US occupying forces with reference to the US Constitution, the Court’s practice could be an example of pre-originalism.

  7. “The absence of “originalist” talk outside the US may be because most of the countries that now have constitutional judicial review have written it into their constitutions.”

    …and if we had it WRITTEN into our constitution then “originalism” would encompass it.

    That said, outside the likes of Justice Kennedy and, I guess, some law professors – who cares if other courts cite ours? If that’s the price of our non-cites, well, that’s a price I’m willing to pay.