Sujit Choudhry (Faculty of Law, University of Toronto) has posted Migration as a New Metaphor in Comparative Constitutional Law (THE MIGRATION OF CONSTITUTIONAL IDEAS, S. Choudhry, ed., Cambridge University Press, 2006) on SSRN. Here is the abstract:
The debate over the use of foreign law on the U.S. Supreme Court is a part of a much larger constitutional conversation occurring in many jurisdictions regarding the migration of constitutional ideas. The migration of constitutional ideas across legal systems is rapidly emerging as one of the central features of contemporary constitutional practice. The migration of constitutional ideas occurs at various stages in the life-cycle of modern constitutions. The use of foreign law in constitutional interpretation is one example. Another is the use of foreign constitutions as models in the process of constitution-making. Moreover, the migration of constitutional ideas occurs not only across national jurisdictions, but also between the national and supranational level. The most prominent example of the latter is the process surrounding the drafting of the European Union’s Draft Constitutional Treaty, which drew heavily upon the constitutional traditions of member states both for specific institutional prescriptions and, indeed, for the very idea of constitutionalism itself as a way to understand and describe the character and content of that project.
The migration of constitutional ideas has been identified to a limited extent at a descriptive level. But many basic conceptual issues have received almost no attention in the large and growing critical literature on comparative constitutional law. For example, the existing literature has not addressed systematically the methodology of constitutional migration, nor the normative underpinnings of this enterprise. Detailed case studies of common issues across a small set of legal orders have not examined how and why constitutional ideas have migrated across systems. Normative constitutional theorists have set out universal accounts of liberal democratic constitutionalism, have called for those accounts to inform constitutional interpretation across jurisdictions, and are open to comparative engagement. They have not, however, examined how the migration of constitutional ideas figures into their narratives of convergence.
This volume, the Migration of Constitutional Ideas, tackles this phenomenon from a diverse range of methodological perspectives. Moreover, the chapters draw on a rich range of constitutional practice. Together, the chapters fill a major gap in the critical literature. A major impetus for the volume is that the practice of the migration of constitutional ideas has outpaced the theoretical frameworks through which scholars have hitherto approached the study of comparative constitutionalism. To recast our theories of comparative constitutional law, we must therefore turn to a detailed study of constitutional practice. As a consequence, many of the chapters draw on detailed examples from a wide variety of jurisdictions (e.g. Hungary, India, Canada, South Africa, Hong Kong, the European Union) on a diverse range of subject-matter (e.g. same sex marriage, freedom of expression, anti-terrorism legislation, judicial independence). A richer account of constitutional practice will serve as fodder for the theoretical reconceptualization of the discipline.
In this introductory essay, I describe and defend a theory of the use of comparative constitutional materials in constitutional interpretation which I term dialogical interpretation. The goal is to use comparative materials as an interpretive foil, to expose the factual and normative assumptions underlying the court’s own constitutional order. First, comparative materials are engaged to identify the assumptions embedded in positive legal materials. But in the process of articulating the assumptions underlying foreign jurisprudence, a court will inevitably uncover its own. By asking why foreign courts have reasoned a certain way, a court engaged in a process of discursive justification asks itself why it reasons the way it does. And so the next move is to engage in a process of justification. If the assumptions are different, the question becomes why they are different. Comparative engagement highlights the contingency of legal and constitutional order, and opens for discussion and contestation those characteristics which had remained invisible to whether those assumptions ought to be shared. The types of reasons offered will vary depending on the culture of constitutional arguments in the jurisdiction of the interpreting court, and may encompass constitutional text, structure, history, precedent, and normative considerations. Finally, the court is faced with a set of interpretive choices. A court may be able to justify the similarity with, or the difference between, the assumptions underlying its own constitutional order and a foreign one. Comparative engagement, then, leads to a heightened sense of legal awareness through interpretive clarification and confrontation. But the identification and attempted justification of constitutional assumptions through comparison may lead a court to challenge and reject those assumptions and search for new ones. In cases of constitutional similarity, a court may determine a difference to be unfounded, and may rely on comparative jurisprudence as the engine of legal change.
The dialogical method of comparative engagement may equip US courts to respond to the challenge that the use of comparative law is a form of judicial activism, because it rejects the dichotomy between binding and non-binding uses of comparative materials, opening up the space for a third option which accords comparative materials a distinctive legal significance without raising the fears of judicial activism or threats to US sovereignty. I suggest that Roper v. Simmons illustrates that the Court may itself be heading toward this understanding.