The Postwar Paradigm and American Exceptionalism

University of Toronto, Faculty of Law, Legal Studies Research Paper No. 899131

THE MIGRATION OF CONSTITUTIONAL IDEAS, Sujit Choudhry, ed., pp. 83-113, New York: Cambridge University Press, 2006

31 Pages Posted: 27 Apr 2006

See all articles by Lorraine Weinrib

Lorraine Weinrib

University of Toronto - Faculty of Law


The Constitution of the United States provided the inspiration for the rights-protecting constitutions of liberal democracies throughout the world. Yet the constitutional systems developed or newly established since the Second World War now differ from their US precursor. These systems have come to share a sophisticated legal paradigm that facilitates - indeed, perhaps necessitates - comparative engagement. The constitutional jurisprudence of the United States stands apart from this shared legal paradigm. Recently, prominent US judges and politicians have crossed swords on the issue of comparative reflection. This debate raises an important question: how should US scholars and judges define the relationship of their Constitution to the constitutional systems of liberal democracies that operate within the postwar constitutional paradigm?

In this chapter I focus, in the light of the postwar constitutional conception and its juridical paradigm, on two interrelated strands of the purported justification for the exceptionalist constitutional conception with which it competes. In the first strand, the Constitution stands as the unique product of the US founding, so that constitutional interpretation operates within the parameters of US constitutional tradition and history. Deference to past and present expressions of the people shape legal reasoning about constitutional rights. In the second strand, any deviation from such deference invites subjective and unaccountable judicial preference to reign supreme. The classical exemplar of this danger is the Lochner case. Recoiling from the perceived judicial hubris of Peckham's majority opinion, courts and commentators in the United States have endorsed Holmes's extreme deference to majoritarianism, history, and tradition.

The postwar constitutional conception demonstrates the vulnerability of both strands in this argument. The growing development of a transnational culture of rights suggests an alternative to the conception of rights-protection as the unique product of US experience. Moreover, the traditional reading of Lochner is mistaken in asserting, as the sole corrective to Peckham's majority opinion, Holmes's policy of deference to majority, history, and tradition. Rather, we should take up the neglected reasoning of Harlan, who carefully examined the impugned limitation of freedom of contract and found it justified as an exercise of the traditional police power of the state.

This chapter develops these themes. The following section traces the emergence and legal structure of the postwar constitutional paradigm. The next section traces the features of this juridical paradigm within the Warren Court. The final section revisits the legitimacy of the Warren Court's constitutional methodology, by arguing that Harlan's dissent - the road not taken, as it were - delineates the legal ordering now acknowledged to be the precursor of the postwar paradigm. The conclusion draws out some of the implications of the overall argument. For example, this reassessment of Harlan's opinion would not merely enrich the recent revisionary examination of the Lochner crisis and its resolution; it would also vindicate as juridical even the most controversial judgments of the Warren Court. If the postwar constitutional paradigm were to be recognized as an integral part of US constitutional legal structure, the door would open to comparative constitutional engagement in the further development of that paradigm within the distinctive contours of US constitutional law.

Suggested Citation

Weinrib, Lorraine, The Postwar Paradigm and American Exceptionalism. University of Toronto, Faculty of Law, Legal Studies Research Paper No. 899131, THE MIGRATION OF CONSTITUTIONAL IDEAS, Sujit Choudhry, ed., pp. 83-113, New York: Cambridge University Press, 2006, Available at SSRN:

Lorraine Weinrib (Contact Author)

University of Toronto - Faculty of Law ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
416-978-5075 (Phone)
416-978-7899 (Fax)

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