How to Compare Constitutionally: An Essay in Honour of Mark Tushnet

Abstract

Tushnet has contributed to debate on methodology at three key levels: first, by providing a useful taxonomy for thinking about different modes of comparison (taxonomy); second, by using and citing a variety of different methods of comparison (mixed methods); and third, by providing a model of realistic, provisional small-n case-selection. This piece, divided into five parts, links Tushnet's ideas about methodology to Dixon's own thoughts about some basic modes and methods of comparison. Part 1 provides a taxonomy of different modes of comparison and relates those to the modes of comparison identified by Tushnet and others in previous work. Part 2 considers variants of these different modes, and especially the idea of ‘thin’ versus ‘thick’ modes of comparison. Part 3 considers the question of who is engaging in comparison, and the relevance of an actor’s institutional role, and their own theory of that role, to processes of comparison. Part 4 considers issues of scope and case-selection, and especially how researchers might approach the task of qualitative, empirical comparison. Throughout these sections, I draw on Tushnet’s own scholarship, and especially his work on weak-form review, as illustrative, and in part 5, conclude by considering the link between these lessons and Tushnet’s contribution to the field.

Keywords: Mark Tushnet, comparative constitutional law, pioneer, taxonomy, mixed methods