Fall 2020 • Course
Comparative Constitutional Law
Prerequisites: None; U.S. constitutional law helpful but not required.
Exam Type: Please refer to the Fall 2020 Tentative Exam Schedule
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, Sri Lanka and South Africa, it will examine selected problems of both constitutional design and constitutional adjudication. We will, for example, take up 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), in light of recent controversies. We will also likely consider various constitutional approaches to addressing emergencies and emergency powers, as well as constitutional law regulating the availability of abortion in selected jurisdictions (including the United States, Germany, Canada, Colombia, and Ireland). The course will consider the meanings of terms like “constitution” and “constitutionalism,” “liberal” and “authoritarian,” as well as the purposes and nature of legal comparison. Other likely topics include (1) relationships between “popular” branches of government and courts, including under constitutions that permit legislative ‘override’ of constitutional limits, (2) constitutional transitions, including from democratic constitutionalism to more abusive or authoritarian forms of constitutionalism, (3) different forms of constitutional federalism, (4) approaches to protecting minority groups (for example, federalism, affirmative action for racial/ethnic/linguistic minorities, or group-based rights), (5) gender equality; (6) freedom of religion, (7) freedom of speech and the role of “knowledge” institutions (e.g. free press, universities, civic NGOs), and (8) 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 provide both flexibility to respond to future needs and 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 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? Does constitutionalism require some degree of at least minimally effective governance?
Second, we will also critically examine the nature of comparative study. 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? Does comparative constitutional study suggest that elements thought necessary for constitutional governance may be “falsely” thought necessary, in light of experience elsewhere? Or does it illuminate how difficult it is to distinguish “false necessities” from “true necessities,” to the extent that a 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?
Author(s): Vicki C. Jackson & Mark V. Tushnet
Title: Comparative Constitutional Law
Edition: Third Ed.
Publisher: Foundation Press