The politics of comparative constitutional law. Migration as a new metaphor in comparative constitutional law. SUJIT CHOUDHRY
Alunos: Renato Souza Oliveira Junior e Felipe Dantas de Araújo
DEBATE BREYER E SCALIA:
Breyer suggested that the constitutionality of this practice in European federations was relevant to the Court's analysis, while Scalia, delivering the opinion of the Court, declared 'comparative analysis inapproprete to the task of interpreting the constitution.
Breyer invoked the unconstitutionality of lengthy waits on death row in other jurisdictions as 'relevant and informative', 'useful even though not binding', and as material that 'can help guide this Courf.s Justice Thomas, speaking for the majority, suggested that the citation of foreign jurisprudence indicated a lack of legal support in domestic materials.
PARANÓIA:
This is not hypothetical. It is not remote. It's not implausible. This is where we are right now ... I think they are absolutely trying to infiltrate into our judicial system this idea that our judges need to listen to what their judges say, and we should say no to that.
Justice Kennedy (for the majority) reviewed a range of foreign sources and declared that they, 'while not controlling the outcome, provided significant confirmationfor our own conclusion.
Scalia: He accused the majority of holding the view 'that American law should conform to the laws of the rest of the world' - a view which 'ought to be rejected out of hand'.
CURIOSIDADE:
Breyer put it, he was 'curious' about how other courts tackled similar problems. Scalia pushed back, asking why judges should cite such cases, according normative status to their reasoning.“Read the cases, 'indulge your curiosity! Just don't put it in your opinions“
COURTS MUST EXPLAIN WHY COMPARATIVE COUNT!!! And ifcourts do not, judicial review is open to the charge of simply being politics by other means, cloaked in legal language, and subject to attenuated democratic control.
Scalia sharpened this objection by suggesting that judges working with this theory cite comparative law selectively, such that '[w]hen it agrees with what the foreign decision says, we use the foreign law, and when it doesn't agree we don't use it'
Citing comparative law permits courts to achieve desired results while pretending they are engaged in a legal enterprise???
Breyer accepts that it is wrong for judges to substitute their own subjective views for that of a legislature'.
PARANÓIA 2: The concern is not about the imposition of the elite social, political, and economic views of the judiciary on the US people. Rather, the fear is that public opinion, international organizations, and even foreign governments - to thwart the will of the US public.
Roger Alford has coined the term "INTERNATIONAL COUNTERMAJORITARIANISM’ to capture this idea.44 As Alford writes, '[u]sing global opinions as a means of constitutional interpretation dramatically undermines sovereign~ by utilizing the one vehicle - constitutional supremacy that can trump the democratic will'.
PRAGMATISMO: One reason for citing the case law of other national courts, said Breyer, was to consolidate judicial review in transitional democracies:
CONTRADIÇÃO: Proponents assert that foreign case law is not 'binding' or 'controlling, but then cannot explain how or why it is used instead
RESOLUÇÃO DO SENADO: which states that the 'inappropriate judicial reliance on foreign judgments, laws, or pronouncements threatens the sovereignty of the United States'. Such reliance is inappropriate because it contradict::; the Court's institutional role in the US constitutional scheme: 'to faithfully interpret the expression of the popular will through the Constitution.' As a consequence, the resolution states that !judicial interpretations should not be based in whole or in parts in judgments, laws or pronouncements of foreign instituitons, unless [...] (they) inform an understanding of the original meaning of the Constitution of the US
SITUATING THE MIGRATION OF CONSTITUTIONAL IDEAS IN THE DISCIPLINE OF COMPARATIVE CONSTITUTIONAL LAW
1. Moreover, the migration of constitutional ideas occurs not only across national jurisdictions, but also SUPRANATIONALS: 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.
2. Comparative law an'd legal transplants:
Boiled down to its essentials, Watson claimed that
(a) legal transplants consist of transferring rules between legal systems,
(b) such transfers are the primary engine of legal change,
(c) the fact of widespread transfer suggests there is no close relationship between law and the broader society, and finally,
(d) the discipline of comparative law should be oriented toward the study of transplants.
3. THE MIGRATION OF CONSTITUTIONAL IDEAS AND DIALOGICAL INTERPRETATION
Since difference is defined in comparative terms, a keener awareness of the particular can be sharpened through a process of comparison. Comparative engagement, far from necessarily directing courts and legal actors toward constitutional convergence, can instead reinforce moments of constitutional difference.
The goal is to use comparative 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 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.
PART I: THE METHODOLOGY OF COMPARATIVISM
Mark Tushnet (Some reflections on method in comparative constitutional law) provides a striking contrast to HirschI. Whereas HirschI argues that legal studies of comparative constitutionalism have been methodologically deficient, Tushnet defends the existing literature and the methods it has employed, and situates the academic study of comparative constitutional law firmly within the mainstream of legal scholarship.
Tushnet observes that the academic study of comparative constitutional law has not been methodologically innovative because it has relied on a series of well-established methods used in the study of comparative law.
Tushnet suggests that despite its lack of methodological originality, the existing literature has nonetheless yielded intellectual dividends. There are three principal comparative law methodologies: normative universalism, functionalism, and contextualism.
Lorraine Weinrib (The postwar paradigm and American exceptionalism) also works from within a legal perspective, but proceeds from the practice of courts. Her target, however, is American exceptionalism - i.e., the refusal of many us courts and justices to engage in comparative analysis. American exceptionalism flows from the premise that constitutional judicial review is undemocratic and illegitimate, and views the migration of constitutional ideas as a form of judicial activism that further undermines the legitimacy of judicial review.
Weinrib contrasts American exceptionalism with the 'postwar juridical paradigm' of rights protection, a common constitutional model she claims is found in a wide variety of liberal democracies (e.g. Israel, Canada, and Germany). This model views judicially enforced constitutional rights as crystallizations of inherent human dignity and comparative constitutional analysis as a natural by-product of the shared constitutional template that transcends jurisdictional boundaries.
While the dominant view is that the postwar model is totally foreign to the US experience, Weinrib argues that the rights-based conception has a pedigree in the decisions of the Warren Court, which themselves influenced constitutional courts in other countries.
PART III: COMPARATIVE CONSTITUTIONAL LAW, INTERNATIONAL LAW AND TRANSNATIONAL GOVERNANCE
DEBATE BREYER E SCALIA:
Breyer suggested that the constitutionality of this practice in European federations was relevant to the Court's analysis, while Scalia, delivering the opinion of the Court, declared 'comparative analysis inapproprete to the task of interpreting the constitution.
Breyer invoked the unconstitutionality of lengthy waits on death row in other jurisdictions as 'relevant and informative', 'useful even though not binding', and as material that 'can help guide this Courf.s Justice Thomas, speaking for the majority, suggested that the citation of foreign jurisprudence indicated a lack of legal support in domestic materials.
PARANÓIA:
This is not hypothetical. It is not remote. It's not implausible. This is where we are right now ... I think they are absolutely trying to infiltrate into our judicial system this idea that our judges need to listen to what their judges say, and we should say no to that.
Justice Kennedy (for the majority) reviewed a range of foreign sources and declared that they, 'while not controlling the outcome, provided significant confirmationfor our own conclusion.
Scalia: He accused the majority of holding the view 'that American law should conform to the laws of the rest of the world' - a view which 'ought to be rejected out of hand'.
CURIOSIDADE:
Breyer put it, he was 'curious' about how other courts tackled similar problems. Scalia pushed back, asking why judges should cite such cases, according normative status to their reasoning.“Read the cases, 'indulge your curiosity! Just don't put it in your opinions“
COURTS MUST EXPLAIN WHY COMPARATIVE COUNT!!! And ifcourts do not, judicial review is open to the charge of simply being politics by other means, cloaked in legal language, and subject to attenuated democratic control.
Scalia sharpened this objection by suggesting that judges working with this theory cite comparative law selectively, such that '[w]hen it agrees with what the foreign decision says, we use the foreign law, and when it doesn't agree we don't use it'
Citing comparative law permits courts to achieve desired results while pretending they are engaged in a legal enterprise???
Breyer accepts that it is wrong for judges to substitute their own subjective views for that of a legislature'.
PARANÓIA 2: The concern is not about the imposition of the elite social, political, and economic views of the judiciary on the US people. Rather, the fear is that public opinion, international organizations, and even foreign governments - to thwart the will of the US public.
Roger Alford has coined the term "INTERNATIONAL COUNTERMAJORITARIANISM’ to capture this idea.44 As Alford writes, '[u]sing global opinions as a means of constitutional interpretation dramatically undermines sovereign~ by utilizing the one vehicle - constitutional supremacy that can trump the democratic will'.
PRAGMATISMO: One reason for citing the case law of other national courts, said Breyer, was to consolidate judicial review in transitional democracies:
CONTRADIÇÃO: Proponents assert that foreign case law is not 'binding' or 'controlling, but then cannot explain how or why it is used instead
RESOLUÇÃO DO SENADO: which states that the 'inappropriate judicial reliance on foreign judgments, laws, or pronouncements threatens the sovereignty of the United States'. Such reliance is inappropriate because it contradict::; the Court's institutional role in the US constitutional scheme: 'to faithfully interpret the expression of the popular will through the Constitution.' As a consequence, the resolution states that !judicial interpretations should not be based in whole or in parts in judgments, laws or pronouncements of foreign instituitons, unless [...] (they) inform an understanding of the original meaning of the Constitution of the US
SITUATING THE MIGRATION OF CONSTITUTIONAL IDEAS IN THE DISCIPLINE OF COMPARATIVE CONSTITUTIONAL LAW
1. Moreover, the migration of constitutional ideas occurs not only across national jurisdictions, but also SUPRANATIONALS: 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.
2. Comparative law an'd legal transplants:
Boiled down to its essentials, Watson claimed that
(a) legal transplants consist of transferring rules between legal systems,
(b) such transfers are the primary engine of legal change,
(c) the fact of widespread transfer suggests there is no close relationship between law and the broader society, and finally,
(d) the discipline of comparative law should be oriented toward the study of transplants.
3. THE MIGRATION OF CONSTITUTIONAL IDEAS AND DIALOGICAL INTERPRETATION
Since difference is defined in comparative terms, a keener awareness of the particular can be sharpened through a process of comparison. Comparative engagement, far from necessarily directing courts and legal actors toward constitutional convergence, can instead reinforce moments of constitutional difference.
The goal is to use comparative 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 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.
PART I: THE METHODOLOGY OF COMPARATIVISM
Mark Tushnet (Some reflections on method in comparative constitutional law) provides a striking contrast to HirschI. Whereas HirschI argues that legal studies of comparative constitutionalism have been methodologically deficient, Tushnet defends the existing literature and the methods it has employed, and situates the academic study of comparative constitutional law firmly within the mainstream of legal scholarship.
Tushnet observes that the academic study of comparative constitutional law has not been methodologically innovative because it has relied on a series of well-established methods used in the study of comparative law.
Tushnet suggests that despite its lack of methodological originality, the existing literature has nonetheless yielded intellectual dividends. There are three principal comparative law methodologies: normative universalism, functionalism, and contextualism.
Lorraine Weinrib (The postwar paradigm and American exceptionalism) also works from within a legal perspective, but proceeds from the practice of courts. Her target, however, is American exceptionalism - i.e., the refusal of many us courts and justices to engage in comparative analysis. American exceptionalism flows from the premise that constitutional judicial review is undemocratic and illegitimate, and views the migration of constitutional ideas as a form of judicial activism that further undermines the legitimacy of judicial review.
Weinrib contrasts American exceptionalism with the 'postwar juridical paradigm' of rights protection, a common constitutional model she claims is found in a wide variety of liberal democracies (e.g. Israel, Canada, and Germany). This model views judicially enforced constitutional rights as crystallizations of inherent human dignity and comparative constitutional analysis as a natural by-product of the shared constitutional template that transcends jurisdictional boundaries.
While the dominant view is that the postwar model is totally foreign to the US experience, Weinrib argues that the rights-based conception has a pedigree in the decisions of the Warren Court, which themselves influenced constitutional courts in other countries.
PART III: COMPARATIVE CONSTITUTIONAL LAW, INTERNATIONAL LAW AND TRANSNATIONAL GOVERNANCE
Whereas many of the chapters explore the migration of constitutional ideas across national jurisdictions, Mayo Moran and Mattias Kumm enter this debate from a different angle. International law (especially international human rights law) increasingly serves as a source of constitutional ideas for domestic legal orders through judicial interpretation.
Moran and Kumm accordingly address the question of constitutional migration through the lens of traditional models for the reception of international law into domestic law.
PART N: COMPARATIVE CONSTITUTIONAL LAW IN ACTION - CONSTITUTIONALISM POST 9/11
The final set of chapters examines the migration of constitutional ideas in the wake of 9/11, as a lens through which to explore the themes developed in the earlier chapters. Constitutionalism post 9/11 raises acute dilemmas for liberal democratic constitutions. The challenge posed by mass terrorism arguably threatens the survival of liberal democratic constitutional orders. Legal responses to terrorism accordingly can be viewed as acts of constitutional protection and preservation.
The final chapter is from Oren Gross ('Control systems' and the MIGRATION OF ANOMALIES), who explores the history of 'control systems', whereby imperial powers such as the United Kingdom and France applied an emergency regime to a dependent territory, while purporting to maintain a state of legal normalcy in the controlling territory itself. The hope is that the situation of legal exception would not migrate across territorial boundaries and contaminate the normal legal order in the controlling territory. However, history has taught us that emergency mechanisms have had a tendency to migrate across territorial boundaries.
For example, the curtailment of the right to silence in Northern Ireland eventually found its way into ordinary criminal legislation, and the use of torture in Algeria by French forces made its way into France. And so the stern lesson for constitutionalism post 9/11 is the inability to restrain the migration of constitutional (or anti-constitutional) ideas across territorial boundaries within a single control system - a cautionary tale for the United States, in light of the interrogation techniques it has employed in Guantanamo Bay and Iraq.
Moran and Kumm accordingly address the question of constitutional migration through the lens of traditional models for the reception of international law into domestic law.
PART N: COMPARATIVE CONSTITUTIONAL LAW IN ACTION - CONSTITUTIONALISM POST 9/11
The final set of chapters examines the migration of constitutional ideas in the wake of 9/11, as a lens through which to explore the themes developed in the earlier chapters. Constitutionalism post 9/11 raises acute dilemmas for liberal democratic constitutions. The challenge posed by mass terrorism arguably threatens the survival of liberal democratic constitutional orders. Legal responses to terrorism accordingly can be viewed as acts of constitutional protection and preservation.
The final chapter is from Oren Gross ('Control systems' and the MIGRATION OF ANOMALIES), who explores the history of 'control systems', whereby imperial powers such as the United Kingdom and France applied an emergency regime to a dependent territory, while purporting to maintain a state of legal normalcy in the controlling territory itself. The hope is that the situation of legal exception would not migrate across territorial boundaries and contaminate the normal legal order in the controlling territory. However, history has taught us that emergency mechanisms have had a tendency to migrate across territorial boundaries.
For example, the curtailment of the right to silence in Northern Ireland eventually found its way into ordinary criminal legislation, and the use of torture in Algeria by French forces made its way into France. And so the stern lesson for constitutionalism post 9/11 is the inability to restrain the migration of constitutional (or anti-constitutional) ideas across territorial boundaries within a single control system - a cautionary tale for the United States, in light of the interrogation techniques it has employed in Guantanamo Bay and Iraq.
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