77 Pages Posted: 22 Oct 2008 Last revised: 15 Nov 2012
Date Written: October 22, 2008
This article critically evaluates the widely held view both inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional rights resulting in their lesser reach into private conduct. Third, the U.S. Constitution is exclusively a charter of negative rights and so rejects the two main types of positive constitutional rights - social and economic rights and rights to governmental protection - recognized by many other constitutions.
The thesis of the article is that while the conventional wisdom is largely correct about American exceptionalism regarding the contemporary content of a few specific constitutional rights, it is largely wrong regarding the general structure of constitutional rights. Once labels and assumptions are set aside, I seek to show that on each of the three identified structural issues, far from occupying a comparatively extreme and lone position as is generally thought, the U.S. approach is actually well within the contemporary constitutional mainstream around the world. Debunking the myth of American structural exceptionalism matters for several important and timely reasons. These include undermining one prominent argument against the use by federal courts of foreign constitutional decisions and also the idea that there are distinctive threshold barriers in the United States against judicial implication of a few social and economic rights.
Keywords: American exceptionalism, comparative constitutional rights, structure of constitutional rights, constitutional rights jurisprudence, social and economic rights, horizontal effect, proportionality, constitutional balancing
Suggested Citation: Suggested Citation
Gardbaum, Stephen, The Myth and the Reality of American Constitutional Exceptionalism (October 22, 2008). Michigan Law Review, Vol. 107, No. 3, 2008; UCLA School of Law Research Paper No. 08-33. Available at SSRN: https://ssrn.com/abstract=1287701