Note: This is one of the 1L required international or comparative courses and is only available to HLS first-year and LLM students.
Exam: Any Day Take-Home
The course will cover a series of topics arising in the comparative study of constitutional systems. Concentrating on constitutional structure and law in the United States and in such other countries as Australia, Canada, Colombia, France, Germany, Great Britain, India, Israel, Japan, and South Africa, it will examine selected problems of both constitutional design and constitutional adjudication. Early in the course we will consider the varying foundations and structures of judicial review of the constitutionality of laws (e.g., how are courts that engage in constitutional review structured, how are their judges appointed, what is the source of their authority to engage in constitutional review). We will also, early in the course, likely consider the constitutional law regulating availability of abortion in the United States, Germany, Canada, Colombia, and Ireland. Other likely topics include (1) the relationships between "popular" branches of government and courts under constitutional regimes that permit legislative ‘override’ of constitutional decisions, (2) constitutional transitions, including from democratic constitutionalism to more abusive forms of constitutionalism, (3) presidential compared to parliamentary systems of governance and whether/how constitutions should address “emergency” powers, (4) different forms of constitutional federalism, (5) approaches to protecting minority groups (for example, federalism, affirmative action for racial/ethnic/linguistic minorities, or group-based rights), (6) gender equality; (7) freedom of religion, (8) freedom of speech, and (9) positive social welfare rights.
Two overarching questions will be explored through these topics. First, we will be trying to improve our capacities to think systematically about constitutions, different structures for organizing governments and establishing just and efficacious governments, and about the role of constitutional law, and courts. How can governments be structured to both provide flexibility to respond to future needs and ensure appropriate degrees of ongoing stability? How can law and government structures help organize or manage responses to the tensions between majoritarian democracy and basic human rights? Between the human needs and demands of competing minorities? To do so, we will focus on a set of basic questions about constitutions, and constitutionalism: Why have constitutions? What is the relationship between a written constitution and constitutionalism? Can there be constitutionalism without a constitution? Does constitutionalism necessarily entail precommitment through entrenched law? Does constitutionalism necessarily require commitment to specific substantive norms?
Second, we will also critically examine what it is that can be learned from a comparative study of constitutions and constitutionalism. Can one draw conclusions for one country based on comparing constitutional experiences in others? Or is the possibility of drawing lessons from one polity to another always limited by the particularities of context and culture within which constitutions are formed and constitutional decisionmaking proceeds? Comparative constitutional study might yield insights into parts of one's own system that are (falsely) experienced as essential – when one learns that similar results are produced through different constitutional structures elsewhere, it is eye-opening. On the other hand, comparative study may also illuminate how difficult it is to distinguish "false necessities" from "true necessities," to the extent that each constitutional system's parts are integrally interrelated with others and bound up with a specific constitutional and political culture. Controversies over the U.S. Supreme Court’s references to foreign law (for example, in death penalty cases) raise important questions: can courts (or other domestic constitutional decision-makers) really benefit from the constitutional experiences of other countries? Is it legitimate for them to do so?