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

Last summer I was fortunate to share with Anne Massie the chance to teach Comparative Constitutional Law in the Loyola Chicago program at its Rome campus. Part of what made it enjoyable was the participation of Justice Ruth Ginsburg, along with her law professor husband, Marty Ginsburg. Justice Ginsburg gave three lectures – one on the inner workings of the Court, a second on her experiences litigating women’s rights cases in the 1970s, and the third on dissents. Her lectures revealed to enthralled students how passionate she is about what she is doing and how personal the relationship is among most of the Justices. Marty gave a wonderful lecture entitled “Imperfections.” It was about how things that happen that might seem not so desirable at the time can, nevertheless, lead to even better outcomes. He started with wondering what would have happened if big law firms would have hired women lawyers when Sandra Day O’Connor and Ruth Bader Ginsburg graduated from law school. That would have been good, but, had that been the case, both of them would now be rich, retired partners of major law firms. As things turned out, much better things happened because one path had been closed. His warmth and humor made the ambiance so relaxed that a student was so bold to ask how he and Justice Ginsburg had met, which they took turns answering.

What I want to comment on, however, is an insight that teaching comparative constitutional law allowed me to have and has been useful in my thinking about American constitutional law. It ties together our supposed “exceptionalism,” our doctrine of judicial review, and “originalism.”

I have always been proud that the US Constitution has been the inspiration for the development of written constitutions and of constitutional democracy, including individual constitutional rights, in many countries around the world. Judicial review, as originally articulated in Marbury v. Madison, has taken hold around the world in part because of our experience with it, particularly in its role in developing individual constitutional rights to expand the concept of what a democracy entails.

In recent times, however, our Constitution and the decisions of our Supreme Court are not cited that often by the courts making constitutional decisions in these other countries. Given the strident rejection of any citation to foreign legal developments by some in the US, including some member of our Supreme Court, one explanation is simply that turnabout is fair play: If the constitutional law of other countries is to be avoided at all costs in US courts because of our supposed “exceptionalism,” why should the courts in other countries cite US decisions?

There may be some of that.  However, I think more is at stake. The demand for isolationist “exceptionalism” may have something to do with our turn toward “originalist” interpretative approaches that has come to so dominate the discourse about constitutional law in this country.  “Originalism” creep is even expanding across the ideological spectrum of US constitutionalists. “Originalism” in any of its many versions is simply a non-starter for the courts of most other countries deciding constitutional questions.

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. Some have even created specialized constitutional courts with jurisdiction limited to decisions of constitutional questions. Our written constitution lacks such an explicit provision, though the structure of our constitution, with the horizontal separation of powers into three branches for the national government and a vertical power distribution between the national and supposedly sovereign states, seems to me to ache for judicial review to resolve the inevitable disputes that emerge in such a complicated power sharing system. In countries with express judicial review provisions, there is no question of the legitimacy of judicial review, though, of course, there are intense disputes over any particular exercise of that power.

So what is the link between “originalism” and an explicit judicial review power? Given security over the legitimacy of judicial review in those countries where it is explicitly established in the written constitution, it struck me that one way of looking at our obsession with “originialism” is that it reflects our collective insecurity about the legitimacy of judicial review. The strident cry of US “exceptionalism,” as virtuous and not to be contaminated by the introduction of foreign influences, is a way of shielding our constitutional discourse about judicial review from any recognition of its calm acceptance in so many other countries. What is exceptional is not judicial review but our insecurity over its legitimacy.

Some years back, Cass Sunstein proffered a straightforward political explanation for US judicial “exceptionalism:” The national political turn away from Warren Court activism with the coming of Nixonian Republicanism. One of its goals was to stop the momentum the Warren Court had been developing for the expansion of individual constitutional rights from negative ones to include positive rights. Shutting out the experiences of other countries that had been developing broader individual constitutional rights helped stem the tide toward recognition of positive rights here.

If that is true, that raises a question of which way causation runs: Has our collective insecurity about the validity of judicial review caused the cry for US “exceptionalism” and our soul-searching “originialism”? Or, has that insecurity been used instrumentally with politically motivated calls of “exceptionalism” and “originalism” made to retard the development of individual constitutional rights?

I wish I knew the answer to that. At any rate, teaching comparative constitutional law sure put the debates over how to interpret our Constitution into a new context. I hope I will be able to expand the discussion in my US constitutional law course this coming semester.

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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.