SMNR: Comparative Constitutionalism

According to the legal theorist, Roscoe Pound, "Experience, which is no longer merely local, must be subjected to the scrutiny of reason and developed by reason, and reason, which in its very nature transcends locality, must be tested by experience. The wider the experience, the better is the test. Thus the science of law must increasingly be comparative. Whether we are dreaming of a world law or thinking of the further development of our own law...the methods of the jurist must have a basis in comparison." Written in 1957, Pound's point is much older than fifty-six years; indeed the framers of the American Constitution proceeded in accordance with its insight, as their architectural design for constitution-making relied on comparative examples to supplement their Enlightenment faith in reason. Still, the comparative method was for many years marginalized as a tool of constitutional analysis. This is especially the case in the United States, where the longevity and success of the Constitution have surely contributed to a discernible insularity (and perhaps arrogance) in scholarly and juristic awareness of alternative constitutional possibilities. Yet, with the extraordinary regime changes that have occurred throughout the world over the last several decades, this appears to be changing. The heightened activity surrounding recent fundamental re-structurings of polities has led to a renewed interest in the old subject of comparative constitutionalism. Indeed, it is routine now regularly to encounter news items on constitutional design, amendment, and interpretation. This course will explore alternative traditions of constitutionalism, connecting them to the broader political cultures from which they have emerged. It will examine the various shades of meaning underlying political values and moral theories that inform concepts -- for example, liberty, autonomy, equality, and community -- within various constitutional traditions. It will seek to account for the similarities and differences within the constitutional ideas and arrangements in contrasting systems. It will explore the role of constitutional courts in polities with varying conceptions of judicial review and its significance. It will consider alternative approaches to the study of constitutional maintenance and change. It will attempt to clarify the elusive concepts of constitutional identity and revolution. And it will look closely at the ways in which foreign experience might illuminate and possibly enrich American constitutional understandings. As that other famous comparative legal scholar, Tom Waits, has said (actually sung), “I never saw my hometown until I stayed away too long.”

Class Details

Meeting Days Time Location
Wednesday 3:30 - 6:30 pm BAT 1.104

Examination information not available

Additional Information

Course Type
Grading Method
Pass/Fail Allowed

Textbooks

  • The Endurance of Constitutions - Z. Elkins et.al
      Cambridge
        (required)
  • Towards Juristocracy - R. Hirschl
      Harvard
        (required)
  • Constitutions in Deeply Divided Societies - H. Lerner
      Cambridge
        (required)
  • Advanced Intro to Comparative Constitutional Law - M. Tushnet
      Elgar
        (required)