An Early Tragedy of Comparative Constitutionalism: Frank Goodnow & the Chinese Republic
58 Pages Posted: 2 Feb 2012 Last revised: 14 Aug 2013
Date Written: January 17, 2012
This article recovers a lost episode in the neglected early history of American comparative constitutionalism. In 1913, pioneering comparative lawyer Frank Goodnow was sent to China to assist the new Chinese Republic in the writing of its first constitution. Goodnow’s mission reflected the growing interest of America in China’s legal development in this era, and his constitution-writing project won broad support from the American legal profession. Goodnow’s tenure ultimately generated great controversy when he advised China to adopt constitutional monarchy rather than continue on as a republic. This article describes this controversy and how American international engagement was increasingly shaped in the early 20th century by the attempted export of American legal models as a presumptively altruistic mechanism of modernization. Goodnow’s allegiance to comparative legal science agitated against this more parochial view of legal internationalism, and in the end he was excommunicated from American foreign policy affairs.
More broadly, this article shows how the early history of American comparative constitutionalism had its roots in the early 20th century American discourse on colonial administration. Goodnow and other American lawyers of the era turned to indirect engagements with foreign legal reform only after the popular rejection of colonialism that had been already constitutionally sanctioned by the now infamous Insular Cases. This article further argues that these colonial roots and Goodnow’s feckless misadventure in China hold key lessons for today’s comparative constitutionalists. It provides a vivid example of how the technocratic illusion of engaging in depoliticized legal reform abroad is self-defeating and untenable. Further, it warns against the inherent tensions between a methodologically coherent comparative law and the desire to export American constitutional models abroad, and how such tensions can undercut clear-sighted American understanding of foreign legal developments.
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