Comparative Approaches to Constitutional History

Delaney, E. F., & Dixon, R. (2018). Comparative Judicial Review. Cheltenham, UK: Edward Elgar Publishing.

Columbia Public Law Research Paper No. 14-613

24 Pages Posted: 18 Dec 2018 Last revised: 20 Jan 2019

See all articles by Jamal Greene

Jamal Greene

Columbia University - Law School

Yvonne Tew

Georgetown University Law Center

Date Written: 2018

Abstract

An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional courts or apex courts that engage in constitutional review: those of the United States, Canada, Germany, Australia, India, Hong Kong, Malaysia, and Singapore.

Because our selection of cases aims to be illustrative rather than exhaustive, we do not attempt to draw firm conclusions about the global use of constitutional history. Still, the qualitative evidence that follows hints at what might well be universal within constitutional judging: (1) the significance of history broadly understood, and (2) the limits on history’s reach into contemporary rights conflicts.

Suggested Citation

Greene, Jamal and Tew, Yvonne, Comparative Approaches to Constitutional History (2018). Delaney, E. F., & Dixon, R. (2018). Comparative Judicial Review. Cheltenham, UK: Edward Elgar Publishing. ; Columbia Public Law Research Paper No. 14-613. Available at SSRN: https://ssrn.com/abstract=3292350

Jamal Greene

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

Yvonne Tew (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue NW
McDonough Hall
Washington, DC 20001
United States
202 662 9225 (Phone)

HOME PAGE: http://https://www.law.georgetown.edu/faculty/yvonne-tew/

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