Faculty Bibliography
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The work of Tom Ginsburg, a leading scholar of comparative constitutional studies, is influential around the world and spans a very wide range of topics. He has played an absolutely essential role in establishing a database of constitutional provisions, both around the world and over time, that has fueled his own research, including his co-authored book on the endurance of national constitutions, and the research of other comparative constitutional scholars. He has contributed important insights about many different areas of comparative constitutional study. In much of his work he has been concerned with the relationship between political forces and political life on the one hand, and constitutional forms of law on the other. Whether on judicial review in new democracies, or on the role of courts and constitutions in authoritarian societies, his work is always interesting and reflects his terrific instinct for important and fruitful topics of inquiry.
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Knowledge institutions—understood as ongoing entities with a central purpose of creating or disseminating knowledge according to disciplinary standards—are central to the workings of a constitutional democracy. The press is made up of knowledge institutions that should be recognized as such. Moreover, and contrary to the suggestions of some jurists, the press can be reasonably defined, without suspect content discrimination, in light of its special role in seeking and reporting knowledge; different definitions may be appropriate for different purposes, such as limited access to physical press briefings as compared to privileges for confidential sources. Finally, knowledge institutions, including the press, are interdependent on each other, which means that all knowledge institutions have stakes in the well-being of others.
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Nations around the world are facing various crises of ineffective government. Basic governmental functions, including rights-protection and securing material well-being, including education and healthcare, are compromised, leading to declines in general welfare, in enjoyment of rights, and even of democracy itself. This innovative collection, featuring analyses by leaders in the fields of constitutional law and politics, highlights the essential role of effective government in sustaining democratic constitutionalism. The book explores 'effective government' as a right, principle, duty, and interest, situating questions of governance in debates about negative and positive constitutionalism. In addition to providing new conceptual approaches to the connections between rights and governance, the volume also provides novel insights on government institutions, including courts, legislatures, executives, and administrative bodies, as well as the media and political parties. This is an essential volume for anyone interested in constitutionalism, comparative law, governance, democracy, the rule of law, and rights.
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This review of Madhav Kkhosla’s book, India’s Founding Moment, sees his approach as one of “best lights” understandings, that is, an effort to identify and explain the conceptual underpinnings of India’s founding constitution in their best lights. Khosla emphasizes as key the ways in which the constitution’s requirements of full adult suffrage, its intense specificity of language, and its strongly centralized government form, all contribute conceptually to the creation of the democratic citizen of India—a citizen whose rights across the country were secured by a common constitution and central government, whose knowledge of and ability to exercise rights were enhanced by the constitution’s codified approach, and a citizen whose capacities to participate in democratic processes would be developed by the exercise of democratic rights. The review focuses attention on choices about suffrage, comparing India’s with the less inclusionary founding impulses of the United States constitution. It explores nuances of how codification would and would not promote exercises of citizenship rights, noting the importance of adjudication in the construction of the “common knowledge” to which (according to Khosla) the founders aspired. And the review argues that today, as more illiberal, authoritarian regimes are on the rise, the book’s emphasis on the importance of ideas, words, and common knowledge in constructing liberal, democratic politics is of urgent contemporary importance.
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The Facebook Oversight Board should be mindful that Facebook is not a government—and that the platform’s decisions denying active accounts or taking down posts pose no threat of loss of liberty to any person.
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"Once a mere appendage to constitutional law proper, research in comparative constitutional law has burgeoned in recent decades. Indeed, a growing tendency towards international borrowing and harmonization has been marked in many jurisdictions (even, tentatively, the United States), but it has not been uncontroversial, or uncontested. Now, this new collection from Routledge’s Critical Concepts in Law series meets the need for an authoritative reference work to help researchers and students navigate and make better sense of an abundance of scholarship in comparative constitutional law. The collection is made up of four volumes which bring together the best and most influential canonical and cutting-edge thinking. Topics include constitution-making and amendment; the different structural components of constitutional governance (such as the relationship of legislatures to courts and the effects of different methods of judicial oversight); the interaction of constitutional law with transnational sources of law; and theoretical and practical aspects of constitutional legitimacy. With a full index, and thoughtful introductions, newly written by the learned editor, Comparative Constitutional Law traces the field's development and highlights the challenges for future explorations. The collection will be valued by legal scholars—as well as by political philosophers and theorists—as a vital and enduring resource." -- Routledge
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Grégoire Webber and his colleagues in the jointly authored collection, Legislated Rights, have produced an important book whose central purpose is to reorient constitutional theory to the role of legislatures in protecting rights. They open the book by saying, “[t]he legislature is well placed to secure and promote human rights. That is this book's central thesis.” I am in considerable agreement with the general idea of expanding constitutional theory to include more of a focus on legislators and legislatures. The role of legislators in positively promoting constitutionalism and protecting rights has been neglected in constitutional theory; too often legislation is viewed as presumptively problematic when evaluated through the lens of principled judicial decision-making, and what Jeremy Waldron calls the “dignity of legislation” ignored or undervalued. This review is thus primarily an appreciation of several points made in the book, including its effort at a balanced presentation in some chapters of the relative roles of courts and legislatures in the protection of rights. Along the way, I will note some disagreements, including with their argument about the nature of rights. Many of the book’s arguments for giving legislatures a more central role in constitutional theory and in the protection of rights hold, I suggest, even if rights are conceptualized differently from the view of rights as, in a sense, categorically absolute. In closing, I will extend the authors’ arguments to suggest that if legislatures are to be viewed as playing a more central role in fulfilling rights guarantees in constitutions, then we need to develop a richer and more nuanced set of conceptions and discourse around the role obligations of legislators in constitutional democracies.
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Although the US Constitution is quite short, it is also quite old. The structures it called forth – including the presidency, the bicameral Congress, the Supreme Court – survive, even as their relationships have evolved. Its brief provisions have also spawned a complex body of jurisprudence on many issues that has shifted over more than two centuries; there are now more than 560 volumes of the official ‘US Reports’, that is, of cases decided by the US Supreme Court.
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Rosalind Dixon & Vicki Jackson, Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts, 57 Colum. J. Transnat'l L. 283 (2019).
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Foreign judges play an important role in deciding constitutional cases in the appellate courts of a range of countries. Comparative constitutional scholars, however, have to date paid limited attention to the phenomenon of “hybrid” constitutional courts staffed by a mix of local and foreign judges. This Article addresses this gap in comparative constitutional scholarship by providing a general framework for understanding the potential advantages and disadvantages of hybrid models of constitutional justice, as well as the factors likely to inform the trade-off between these competing factors. Building on prior work by the authors on “outsider” models of constitutional interpretation, it suggests that the hybrid constitutional model's attractiveness may depend on answers to the following questions: Why are foreign judges appointed to constitutional courts--for what historical and functional reasons? What degree of local democratic support exists for their appointment? Who are the foreign judges, where are they from, what are their backgrounds, and what personal characteristics of wisdom and prudence do they possess? By what means are they appointed and paid, and how are their terms in office structured? How do the foreign judges approach their adjudicatory role? When do foreign *284 judges exercise their role? Exploration of these questions is informed by interviews of judges who have served on three jurisdictions' appellate courts that include foreign judges. Ultimately, the Article suggests that the value of having foreign judges on a national court may well depend on their partial “domestication”--through some meaningful degree of domestic support for the role of such judges and through the foreign judges' own approach to constitutional appellate decision-making, such that they occupy a truly hybrid position between that of constitutional “outsider” and “insider.”
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Aspects of an entrenched constitution that were essential parts of founding compromises, and justified as necessary when a constitution was first adopted, may become less justifiable over time. Is this the case with respect to the structure of the United States Senate? The US Senate is hardwired in the Constitution to consist of an equal number of Senators from each state—the smallest of which currently has about 585,000 residents, and the largest of which has about 39.29 million. As this essay explains, over time, as population inequalities among states have grown larger, so too has the disproportionate voting power of smaller-population states in the national Senate. As a result of the ‘one-person, one-vote’ decisions of the 1960s that applied to both houses of state legislatures, each state legislature now is arguably more representative of its state population than the US Congress is of the US population. The ‘democratic deficit’ of the Senate, compared to state legislative bodies, also affects presidential (as compared to gubernatorial) elections. When founding compromises deeply entrenched in a constitution develop harder-to-justify consequences, should constitutional interpretation change responsively? Possible implications of the ‘democratic’ difference between the national and the state legislatures for US federalism doctrine are explored, especially with respect to the ‘pre-emption’ doctrine. Finally, the essay briefly considers the possibilities of federalism for addressing longer term issues of representation, polarisation and sustaining a single nation.
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This book serves as a single point of entry for legal scholars and practitioners interested in understanding the field of comparative judicial review in its broader political and social context.
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In recent years, legislatures and their members have increasingly asserted standing to sue other branches of government, in controversies involving state legislators or legislatures as party litigants and in controversies involving members of or parts of the U.S. Congress. These cases present challenging questions for the federal Article III courts, whose jurisdiction has been interpreted to be bounded by “justiciability” doctrines, including that the party invoking federal court jurisdiction must have standing to do so. This Essay will focus on congressional standing, discussing case law involving claims by state legislatures or legislators to the extent they are relevant.1 It will examine congressional standing—including standing of individual Members of Congress, standing of parts of Congress, and standing for the whole body—within the context of U.S. commitments to democratic constitutionalism, offering a framework for analysis that is intended more to suggest ways of thinking about congressional standing than to prescribe a set of answers.
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Three Harvard Law School alumni — James Bradley Thayer, Oliver Wendell Holmes, Jr., and Louis D. Brandeis — have had outsized impacts on judicial review, how it is conducted and conceived. Part I of this Essay provides a brief overview of Thayer’s theories of judicial deference, Holmes’s value skepticism and deference to “dominant opinion,” and Brandeis’s efforts, through improved understandings of facts, to bring “legal justice” closer to “social justice.” Their influences endure in (at least) rhetorical commitments to judicial deference to legislatures and a certain “value skepticism” that, as Part II suggests, help explain why “proportionality review,” though widely used in other constitutional democracies, has not been adopted here. Part III argues that proportionality review, in some areas, would improve the transparency of constitutional analysis and enable constitutional law to better approach constitutional justice. It further argues that, in an age of “truthiness,” “fake news,” and “kabuki theater” in legislative hearings, courts are most likely, among major institutions of government, to provide publicly transparent and impartial decisionmaking about facts relevant to the constitutionality of laws, whether under proportionality review or other doctrines. Deference may be appropriate, as Thayer, Holmes, and Brandeis in different ways urged, but it should be deployed in ways responsive to the social facts about different governmental decisionmaking processes.
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"With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or detracts from democracy. Contributions from some of the seminal thinkers on the development of scholarship on proportionality (e.g. Alexy, Barak, and Beatty) extend their prior work and engage in an important dialogue on the topic. Some offer substantial critiques, others defend the doctrine and offer important clarifications and extensions of their prior work. Throughout, the authors engage not only with case law from around the world but also with existing scholarly treatments of the subject. Mathematical treatments are avoided, making the book accessible to readers from both 'soft' and hard' social science backgrounds"-- Provided by publisher.
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"This edited collection explores the topic of constitutionalism across borders in the struggle against terrorism, analyzing how constitutional rules and principles relevant in the field of counter-terrorism move across borders. Various chapters underline how constitution-like norms consolidate at the level of international and supranational organizations as a limit to the exercise of public power in the field of counter-terrorism policy, especially counter-terrorism financing. Other chapters examine the extraterritorial application of constitutional rights and the migration of constitutional norms - or anti-constitutional practices - from one state to another. Still others consider how transnational cooperation between states in areas such as intelligence gathering and data sharing may call for updating domestic constitutional law rules or for new international law compacts entrenching rights across borders. What emerges is a picture of the complex interplay of constitutional law, international law, criminal law and the law of war, creating webs of norms and regulations that apply in the struggle against terrorism conducted across increasingly porous borders. The book will be of particular interest to academics and graduate or postgraduate students working in the fields of constitutional law, international law, human rights, comparative law and national security law. It may also be of interest to practitioners concerned with national security, counter-terrorism, and related questions of individual rights"--Page [4] of cover.
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Vicki C. Jackson, Feminisms and Constitutions, in The Public Law of Gender: From the Local to the Global 41 (Kim Rubenstein & Katherine G. Young eds., 2016).
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In demarcating the academic study of the public law of gender, this book brings together leading lawyers, political scientists, historians and philosophers to examine law's structuring of politics, governing and gender in a new global frame ...
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Vicki C. Jackson, Feminisms, Pluralisms, and Transnationalism: On CEDAW and National Constitutions, in The Public Law of Gender: From the Local to the Global 435 (Kim Rubenstein & Katherine G. Young eds., 2016).
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In demarcating the academic study of the public law of gender, this book brings together leading lawyers, political scientists, historians and philosophers to examine law's structuring of politics, governing and gender in a new global frame ...
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The role of elected representatives in a constitutional democracy deserves more attention than it typically receives in law schools. Just as judges have a set of role obligations, which are widely discussed and debated, so, too, do representatives. Their obligations, however, are far less widely discussed in normative terms. Understandable reasons for this neglect exist, due to institutional differences between legislatures and courts, law schools’ long-standing focus on courts, and the intensely competing demands on elected officials; but these factors do not justify the degree of silence on the normative obligations of representatives. This Essay seeks to introduce and defend the normative concept of “pro-constitutional” legislative representatives — that is, representatives whose goals are to advance the purposes of constitutional democracy within their own constitutional system. In identifying some of the normative obligations of a “pro-constitutional” representative in a democratically elected legislature, this Essay argues that such obligations are not limited to issues of constitutional interpretation, but extend to an active role in promoting a working and democratic constitutional government. If judges’ decisions are generally to be governed by consistently and impartially applied principles, legislators must balance the demands of many competing norms and multiple obligations of accountability. To act representatively, legislators must not only be aware of their constituents’ views, but must also be willing to engage with their constituents on and sometimes even seek to influence the substance of those views. To act legislatively representatives must act collectively, and thus, in a heterogeneous and pluralistic setting, they must sometimes be willing to compromise. Representatives also may have obligations of providing information, of fair treatment of constituents, and, in the U.S. Congress, of giving special attention to areas of constitutional legislative jurisdiction in which only the federal government can effectively respond to developments. This Essay also argues that law schools should give more attention to the normative roles of elected representatives. Focusing on the normative obligations of members of Congress can help illuminate distinctions among differently constituted legislative bodies, as well as degrees of overlap and difference between the role obligations of judges and those of elected officials. Improved normative understandings of legislative members’ roles may also bear on statutory and constitutional interpretation. And a more complex understanding of these normative dimensions may help better prepare those law graduates who are themselves elected as representatives to evaluate and respond to the competing demands of their position. Finally, developing a more realistically complex account of normatively attractive conceptions of representation may contribute to ameliorating some contemporary political pathologies.
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The article explores certain claims about the amendment process of the US Constitution. Empirically, it argues that the difficulty posed by formal procedures in obtaining textual amendments of the US Constitution is overstated, if one looks to history and to analogous constitutional requirements for override of presidential vetoes. It suggests that the low amendment rate may result not only from its formal procedures, and exaggerated estimates of their difficulty, but also from ideological or emotional opposition to amendment, as opposed to other methods of legal change. As a normative matter, it argues that, notwithstanding important arguments for caution in seeking constitutional amendment, a constitution that is truly not amendable by its own formal procedures, that relies on indefinitely long tenures for its highest court, and that is committed to judicial supremacy in constitutional interpretation, is in real tension with the democratic component of democratic constitutionalism.
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Proportionality, accepted as a general principle of constitutional law by many countries, requires that government intrusions on freedoms be justified, that greater intrusions have stronger justifications, and that punishments reflect the relative severity of the offense. Proportionality as a doctrine developed by courts, as in Canada, has provided a stable methodological framework, promoting structured, transparent decisions even about closely contested constitutional values. Other benefits of proportionality include its potential to bring constitutional law closer to constitutional justice, to provide a common discourse about rights for all branches of government, and to help identify the kinds of failures in democratic process warranting heightened judicial scrutiny. Earlier U.S. debates over “balancing” were not informed by recent comparative experience with structured proportionality doctrine and its benefits. Many areas of U.S. constitutional law include some elements of what is elsewhere called proportionality analysis. I argue here for greater use of proportionality principles and doctrine; I also argue that proportionality review is not the answer to all constitutional rights questions. Free speech can benefit from categorical presumptions, but in their application and design proportionality may be relevant. The Fourth Amendment, which secures a “right” against “unreasonable searches and seizures,” is replete with categorical rules protecting police conduct from judicial review; more case-by-case analysis of the “unreasonableness” or disproportionality of police conduct would better protect rights and the rule of law. “Disparate impact” equality claims might be better addressed through more proportionate review standards; Eighth Amendment review of prison sentences would benefit from more use of proportionality principles. Recognizing proportionality’s advantages, and limits, would better enable U.S. constitutional law to at once protect rights and facilitate effective democratic self-governance.
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This chapter examines controversies surrounding the U.S. Constitution’s relationship to international law, with particular emphasis on the separation of powers, federalism, the supremacy clause, and individual rights. Before discussing tensions between “original” understandings of international law and the U.S. Constitution, the chapter provides an overview of the founding of the Constitution and its focus on international affairs and foreign relations. It then considers what the Constitution says about treaty law and other international agreements, along with U.S. law’s jurisdiction and supremacy over customary international law. Finally, it explores how international law is interpreted by U.S. law, and how the overlap between international law and constitutional law has increased.
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Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law (Found. Press 3d ed. 2014).
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This book analyzes the structure of our constitutional system of government, providing an overview of the constitutional history of American federalism as it has been developed in decisions of the United States Supreme Court.
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This book offers a comprehensive study of Israeli constitutional law that moves from constitution-making to specific areas of contestation including state/religion relations, national security, social rights, and structural questions of judicial review.
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Rosalind Dixon & Vicki C. Jackson, Constitutions Inside Out: Outsider Interventions in Domestic Constitutional Contests, 48 Wake Forest L. Rev. 149 (2013).
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Increased interactions among peoples and states combined with the growth of written constitutions are creating new opportunities for “extra-territorial” forms of constitutional interpretation, that is, the interpretation of domestic constitutions by “outsiders.” This article considers the potential benefits, and dangers, of outsider interpretation. It also identifies factors relevant to the appropriateness or legitimacy of such practices, drawing from analogous rules and doctrines developed in the context of U.S. federalism and international law.
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David Law and Mila Versteeg have used their considerable legal and empirical skills to identify what they provocatively describe as the “declining influence of the U.S. Constitution,” or of what they sometimes call “American constitutionalism.” This claim has been headline-grabbing in important part because of the larger sociolegal context, in which the question of American hegemony in the world of global politics and economics is deeply unsettled. Declining influence in the design of constitutions thus resonates with a larger set of anxieties about the role of the United States in the world.
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Methodologies of constitutional comparison vary at least as much as, if not more than, methodologies more generally in comparative law. Methods vary in what they aim to do and in who is engaged in comparisons, particularly if the comparative enterprise is defined broadly to include doctrine produced by courts, features of government, and the processes of constitution-making and adoption. This article discusses the different communities of comparative constitutional analysis and identifies some methodological challenges of comparative constitutional analysis.
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My talk today, Methodological Challenges in Comparative Constitutional Law, has two parts. The first part focuses on the relationship between the purposes of comparison and the methodological challenges of comparison. The second part asks whether there are particular methodological challenges in comparative constitutional law as compared with other comparative legal studies.
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Explores the role of constitutions and constitutional law in this changing legal environment, analyzing complex currents of convergence, resistance and engagement with the transnational in the United States, Australia, Canada, Colombia, France, Germany, India, South Africa and elsewhere.
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