Using Comparative Constitutional Law to Resolve Domestic Federal Questions

Abstract:     
This paper examines whether comparative constitutional analysis, while rich in substance, is incongruous to the task of interpreting the United States Constitution. In short, comparative constitutional analysis presupposes that there is a public good and right political order to be achieved through judicial reason. Yet, the United States Constitution might presuppose, in contrast, that there is never a right political order to be achieved through the judiciary alone. In so arguing, this paper seeks to remedy a defect in the scholarly literature by illustrating that the current debate about comparative constitutional law is not a debate about comparativism as such. Rather, the debate is about the role of the judiciary within American democracy. In Part I, this paper briefly describes what comparative constitutional law has meant and currently means for American courts. Building upon Part I, Part II puts forward the claim that one's view of the appropriateness of comparative constitutional analysis is ultimately a reflection of the interpretive posture of the advocate - judge, lawyer, or scholar - regarding the role of the Supreme Court in American democracy. As this paper argues, comparative constitutional analysis may be appropriate as part of a view towards interpreting the Constitution that relies heavily on a common law conception of constitutionalism providing the Court with an expanded, quasi-legislative role. In contrast, a textualist school of constitutionalism might resist the utilization of comparative law in order to exercise judicial restraint so as not to "impose upon those people of the United States norms that those people themselves (through their democratic institutions) have not accepted." Finally, in Part III this paper urges restraint as to the uses of comparative constitutional law so as to ensure that the law is not usurped from its organic ground: the American people.

Number of Pages in PDF File: 29

Keywords: Constitutional law, international law, comparative law, comparative constitutionalism

Accepted Paper Series