Choudry-migrations as a new metaphor.pdf

Electronic copy available at: http://ssrn.com/abstract=943526

THE MIGRATION OF

CONSTITUTIONAL IDEAS

Edited by

SUJIT CHOUDHRY

.",.~.,." CAMBRIDGE::: UNIVERSITY PRESS

Electronic copy available at: http://ssrn.com/abstract=943526

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1

Migration as a new metaphor incomparative constitutional law

SUIIT CHaUDHRY

The politics of comparative constitutional law

Usually judges ask the questions, but on this night the roles were reversed.The occasion was a public~ersation between United stat~s Supreme~USt.i~~Y~~and Scalia, answering questiOnsposed by constitutional ~21ar J:!Q!m~Jl..J)_Q!:~gJl... ITh~- topi~-~~~-th~-(~n~~;:ti(;n~

~vance.~~!gp.~urt D~~isio!!~' to the Court's constitutional caselaw. For a court routinely called upon to address the most divisive issues inUS public life, judicial citation practices hardly seem worthy of a rareevening with two of its most distinguished members. Yet the auditoriumwas packed, with hundreds more watching over a live video feed.

Court observers knew that the event merited close attention. .Thebackdrop was the Co~.!(~i.Q<;:!:.e~.§.inK~~,§.L9.f..co~p.~!a.tiy~_~(till!~~

tional~ - both described as 'foreign' to the US constitutional order - inits constitutional decisions over the previous decade. This practice which I tenn the migration- of conStitutiOn.aI"icfe~;=has de~plydivided~*~4YM;d~!t~Q_1iit:aIong- th~"~ame ideological~s whicll-have-"polarized its jurisprudence. Breyer and Scalia are the leading figures inthis ongoing jurisprudential &ama, although other Justices have joinedthe debate. Their initial -skirmish: in Printz,2 arose in a challenge tofederal attempts to 'commandeer' state officials to deliver federal

Thanks to Norman Dorsen. Mayo Moran, Ira Parghi, and David Schneiderman.

I Thereare two transcripts ofthis conversation, a verba lim recordfrom American Universityand anedited version in the Internatiollal JOllrnal ofConstitlltiollal Law - I cite both as appropriate. Aconversationbetween U.S. SupremeCourtjustices (2005) 3 IntematiomzlJOllmal ofConstitlltiollalLaw 519; Transcript of Discussion Between U.S. Supreme Court Justices Antonin Scalia andStephen Breyer. American University Washington College of Law, available at http://dornino.american.edu/AUlmedialmediarel.nsflO/1F2F7DC4757FD01E85256F890068E6EmOpenDocument.

2 Printz v. United States. 521 US 898 (1997).

1

2 SUJIT CHOUDHRY

programmes. Breyer suggested that the constitutionality of this practicein European federations was relevant to the Court's analysis, while Scalia,delivering the opinion of the Court, declared 'comparative analysisinappropri~!e to _th.~task_<rt"_lI!te!preting...1l_ constitutio!!,.3 The battlequickly moved to the interpretation of the Bill of Rights, principally incases involving the death penalty. In dissenting judgments in denials ofcertiorari to challenges to the 'death row phenomenon' (Knight,4 Poste?),Breyer invoked the unconstitutionality of lengthy waits on death row inother jurisdictions as 'relevant and informative',6 'useful even though notbinding',7 and as material that 'can help guide this Courf.s JusticeThomas, speaking for the majority, suggested that the citation of foreign~--- -'_-.-....-~-

jurisprudence indicated a lack of legal support in domestic materials,9~d equ~te~fit-~th'th~'i~p-;;c~itio~ o{'-f~~eig~ moo-J~fud;~;'fu;hions onAmericans'. 10

Advocates of.-the migratiQ..I!.9f C2!!s.!!-_~!~~j~Jl~~!~!~ear1.0have gained the uj:lper hand. In Lawrence v. Texas, II where the Court__ _ ~_H_' _." -.. • ", ••. ~ .,~,~ _•.•. , •.'"-~ _~_'::-""'_~_ "-"._.."." ' ."". ~., _ ..~"'.~-.

struck down the criminal prohibition of sodomy and departed from itsearlier holding in Bowers v. Hardwick,12 Justice Kennedy's maj.nrityjudgment cited decisions of the European Court of Human~toillustra~.-1haUh£..rea~oni!!fL~!!~!}l()J~iE:g}E:.~ow~have b.een reject~c!

elsewhere'.13 Although it is possible to read Lawrence's citation ofEurop~;njurisprudence narrowly as a refutation of Bowers' claim that theprohibition of sodomy was universal in Western civilization, the betterinterpretation is Michael Ramsey's, who argues that the citation 'suggeststhat constitutional courts are all engaged in a common interpretiveenterprise,.14 Scalia, now in dissent, stated that the Qiscussion.European c~e law was 'meanin~ss dicta'lS and 'dangerous dicta'16because 'for~i;~~;s;J:7-Y;~~e ~;;t rel~;;~t-;;the i!ti~;~i~!~~~'USCot:istit~ti~·I1. -~d last spring in Roper,18 the debate over the migration of(".-~......_....... _._,.-.....-

3 Ibid., at 2377. 4 Kllight v. Florida, 528 US 990 (1990).

s Foster v. Florida, 537 US 990 (2002). 6 Knight, at 463. 7 Ibid., at 528.

8 Foster, at 472. 9 Knight, at 459. 10 Foster, at 470. II 539 US 558 (2003).12 478 US 186 (1986). 13 Lawrellce. at 2483.14 Appropriate Role of Foreign Judgments in the Interpretation ofAmerican Law: Hearing before

the Subcommittee on the Constitution. of the House Committee on the Judiciary, 108th Cong.,2d Sess. 568 (2004) (statement of Michael Ramsey); see also M. Ramsey, InternationalMaterials and Domestic Rights: Reflections on Atkins and Lawrence (2004) 98 American]ollmal of Intemational Law 69.

IS Ibid., at 2495. 16 Ibid. 17 Ibid. 18 Roper v. Simmons, 543 US 551 (2005).

MIGRATION IN COMPARATIVE CONSTITUTIONAL LAW 3

constitutional ideas was joined again. In finding the juvenile deathpenalty unconstitutional, Justice Kennedy (for the majority) reviewed arange of foreign sources and declared that they, 'while not controllin~routcome, .. ~J~rovider~spe<:.~~4!!~~~ignificantconfirmationfor our ownconclusion~;.19 &alia's diss,eEt~~ntin~~d-hi~-~~!i;-;;fes~;]ati~g'attaCh

on theSourt~.~~~~r~~'y'e turn. He accused the majority of holding theview 'that American law should conform to the laws of the rest of theworld' - a view which 'ought to be rejected out of hand'.2D

The Court's increasingly acrimonious exchanges over the citation offoreign sources had shed more heat than light. Justices advocating the

~ration of constitutio~ali4~.a.~.h~~J~il~~~r..~Qj~~gfy th}:~.!:.~erg~~

_~~!p-!eti~J?!.l~Sn_<:.~. that is, ..!2.~?£pl~f.l~h~J2E~g:!!J~wshQ!Jld_<;Q!m!:The evening (after oral argument in Roper, but before it was handeddown) presented a rare opportunity for clarification. Although Breyerand Scalia both referred to foreign law, their focus appeared to be oncomparative materials - that is, either judgments ofother national courts,or international courts interpreting treaties not binding on the UnitedStates (e.g. the European Court of Human Rights, interpreting theEuropean Convention on Human Rights) - as opposed to internationallegal materials which do bind the United States. Dorsen raised this issueat the outset, and S.£alia.-tiKhtly responded that the burden of justificationsquarely rested on the proponentsof its use. As he noted, p~2Pon..m!!.~.!!~

~~_2t..!.-1l~...l!~~_.QLs.Q!!1.P.l!m!!y~_1E-.!':-_.l!K~£..-!pat i!..lL!!Qt'a2.tho!!~~tivl{._:- i.e., thalJt is .!!Q..LbiQ4igK.~LP.!.~ce9£n1. But as Scalianoted, the question then is what work foreign law is doing: 'What's goingon here? ... if you -don't ~~~tHit·;;··b~ -~uthoritativ~, then what is

~........-..~- ... ", ",-,-,,,------,-~----~ .the crite!i.9!l~fQ!..fiti!!gj..t? Why is it that foreign law would be relevantto what an American judge does when he interprets [the USConstitution]?'21

Scalia's retort shifted the persuasive onus to Breyer, and highlightedthat his colleagues on the Court had offered casual and under-theorized

~--"'-"'--'~"----""-<~. ,--",~.. >. _."'''';-_ ....~

responses to this fundamental question. Breyer did lli&e that evening.l0advance his case. He began strongly, stating that he 'was taken rather by;~qJl{s·~,-frlmkly, at the controversy that this matter has generated,because I thought it so obvious'.22 The reason for comparative

19 Ibid.• at 1200. 20 Ibid.. at 1226. ~l A conversation. 522-5.22 Transcript of Discussion.

engagement was that th~~!erialswere citeclln:r advocates before theCourt, and 'what's cited is what the lawyers tend to think is useful'. Now~ • __••__••__• •__• u •••_. •

this begs the question of why these materials are useful. Breyer offered apragamatic rationale, suggesting that foreign courts:-----""~--

4 SUJIT CHaUDHRY

... have problems that of!en,_IJ.l.o.!:-e_~_d -!!1.Q!:e, ar~~imilar to ourowaThey're -d;;-~h;,i~th ... certain texts, texts that more and~ore protect basic human rights. Their societies more and more have

become democratic, and they're faced not with things that should beobvious - should we stop torture or whatever - they're faced withsome of the really difficult ones where there's a lot to be said on bothsides ...Mhercl-hay.~human being called a judge in a differentcountry dealing with a similar problem, why don't I read what he~-'-""--'------' ----------zsays if it's similar enough? Maybe I'll learn something... 3-.-----_.------

So f~rei~ ju...Qgments a!~ a source of practical wisdom to thsJ;QYgh!>usin~s~ 0~~~..c:~.9ing.E~:!_~~ where the positive legal!,!1aterials run out.As Breyer put it, he was 'curious' about how other courts tackled similarproblems.24 Scalia pushed back, asking why judges should cite such cases,according normative status to their reasoning. Rea4 the cases, 'indulg.eyour curiosity! Just don't put it in your opinions', he said.25 When facedwith this argument on an earITer-occasioi~B~;y~r's response was simplyto think <All right'.26 Having failed to explain why the Court should citecomparative case law, Breyer, by his own admission, became <defensive'and opined that comparative en~gement was_ab.ouL~openin~~QU-LeYes

to things that are going on elsewhere'.27 To cite comparative~~I1!=.e is .to .d~Ql1st~ate·m~~4.11l:'!.t;d, cosmop9litgI.Ll1ensibility,as opposed !o_.! n_l!!!P~, inward:looking, anel. illiter!.~~rochialjsm.

~r, d~monst~ating worldliness is hardly adequate justification for amajor shift in the Court's constitutional practice.

A lot is at stake in Breyer's failure to respond to Scalia's challenge. AsAlexander Bickel explained over forty years ago, in liberal democracieswhich have opted for written constitutions enforced by~nclected courtS,tI;pOwer.9f}U"diciat review i~-~ for~ ·~fpoii.ticaIpower-wlUch·cannot be"legitimi~ed ~o~gh' democratic .~~U;-tabilltYiiiX'c-o~troplrSo courts

---------'_., "',...... ~ - ...-~~.- .- .... '- .~~._--._._---~ "-""'._- --------'--.. - -,,~~--'"

23 Ibid. 2, A conversation. 534. 25 Ibid. 26 Transcript of Discussion.27 Ibid.

28 The Least Dangerous Brauch: The Supreme COlIn at the BarofPolitics (2nd edn, Yale UniversityPress, Ne'\v Haven, CT, 1986).


must legitimize their power through both the processes whereby theydetermine whether issues come before the courts and the reasons for theirju4gments, somehow distinguishing adjudication from other forms of- ----------....political decision-making. The various features of.~al reasoning. - stare'decisis, for example - are'more than just the ~"":~I?-!.Ym:~.!!gh whic~ cQ!trt~

~ive at dc:.cision~. They defrn.~.. ~E..~",_':?_~~.~ll~~ __!~~...f£!!-rt~~ ~q'l:l,e

~~~a.!J~~nti!y. 'J.!1e very le!i!!im~9'. of ju~g<!l 4!gi!utions.~eson interpretive methodology. So courts must explain why comparative~oU-nt.-And ifcourts do not, judicial review is open to thecharge ofsimply being politics by other means, cloaked in legal language,and subject to attenuated democratic control.

This is not a problem unique to the United States. As Alan Brudnerwrote recently:

... those who interpret local constitutional traditions take a livelyinterest in how their counterparts in other jurisdictions interprettheir own traditions and in how international tribunals interprethuman-rights instruments whose language is similar to that of theirown texts. This interest, moreover, is a professional one. Comparative constitutional studies are valued, not as a leisur~ after-hours'pastime, b~~ the JiliLthey_give JIU.Jldicigl ... ~preters_?£~national constitution.29

-~--"--""""'-""

In ea.fh_and_e:v.~ry:.fp'un!rywhere th~ migration of constitutional ideas is-,-"",", - ,-~- - ".-" .....".~_._~ -..__. -.. '~~-.-.- ....--.-~---~-'~._.

on the rise,_t!!~_4<:_I?agl:ls.Qf j!!S!!§.£~tiqp.}~:U~!.£t:2E.et. This is t~~e even f()~

rouniri;s such as South Africa, whose Constitution provides that courts

~~_:~!1s{~·i_j;;t~';ti~~~T!~~'.•·~I1<l.Sil!y_fQIl~jsle!~.fQ!~iiQ:~~~j»~~.!Ef~!!.~g.i!~)Ji11 ofBigQ.!~.30 Although international law asserts itssupremacy over the South African legal order, the South AfricanConstitution only directs courts to 'consider' it, raising the questionof how exactly it should be considered. And with 'foreign law'(i.e., comparative law), the additional question is why and under whatcircumstances courts should engage with it at alL

~ To be sure, the cha:.~~..!hat_~g!!lJ?_~ra~~~_.l:.J;!g~g~!!!entjL§'9m_~ho\t

undemocratic has gained wideseread currency in US legal circles, albeitfu;-a~--;~ti;eTy'diffe~~nt set-~-re;;~~~-~th-p~rti~;;-;e~~;;;'cei~ that

29 cOllSritlltiollal Goods (Oxford University Press, Oxford, 2004). p. viii.

30 Constitution of the Republic of South Africa, s. 39(1).

6 SUJIT CHaUDHRY

country.3! Contra Bickel, the argument made is that judicial review is ademocratic practice in the United States. The constitutional text waspopularly ratified, and so as Paul Kahn puts it:32

... the primary work of the Supreme Court is to construct and maintain an

understanding of our polity as the expression of the rule oflaw ... our own

Supreme Court. .. [is] engaged in the unique enterprise ofmaintaining the

belief in American citizenship as participation in a popular sovereign that

expresses itself in and through the rule of law ...

To Americans, judicial review is legitimate becall~e_!h~yyj.~~_ :theCourt as the v;ke of theS-;v~ci~-peocle;. chi~f J~sti~e John Marshallm~ckthi;p~in.t"-b~illi;;;:rlY·i;·Md;b;;;Y"v. Madison.33 Moreover, federaljudges, as ChiefJustice Roberts pointed out in his confirmation hearings,'are appointed through a process that allows for participation of theelectorate' since both 'the President who nominates judges' and 'Senatorswho confirm judges are accountable to the people'.34 For its opponents,--=--=_ ..--_.--the migration of constitutional ideas poses two threats to the democraticc~act~r--;;fj~(Hdafrevi-ew;from~ithin-an(r-wftlioutth~'lJSc~n~tit~tiQniL<?Ig~r:' '"" ' ....-,--' ~'''-'----'-- ...,,'.- u·· --"",-' .... .,.-...><." -- .' <=

First, comparative er:g~g~:rg~I?:_!_J~~£I£!!!~o~_f~~!§..Egar~jp:g_judicial

acti~_s2il' ~!?~_~c.~!'§~-tI{~~~~mo~.~~!ic:...~haEacte!9n!1di~ial ~~ew not onlyjustifies it, ~1l..!~!~. limi~s_on it~!.lte~.um4~ scoJl.!:. In particular, it~~n.s~ls·~rigin~ism, with courts serving as modern-day agents of the~"--;---''''~i:I"~L,8t:~ -. -, ~._-~_~.. ~_.-_ .. . _..... ,.J_---.-_.,-,~ ," _ ,--_.~... . _....:.-..:..J;.

constitutional framers. Foreign law - whether comparative or interna-tionaf:"-on the-(;figi~alist view, 'is irrelevant with one exception: oldEnglish kw', w~ich served as the backdrop for the -.framing of the

~!!i.~t-i;n~U~~!:3S Now Scalia quickly concedes th~tU~;iginali;~i-s'-;o

longer the exclusive method of US constitutional interpretation. TheEighth Amendment, for example, has been interpreted as incorporating'evolving standards of decency that mark the progress. of a maturing

31 R. Posner, No Thanks, We Already Have Our Own Laws. Legal Affairs, July/August 2004.32 P. Kahn, Comparative Constitutionalism in a New Key (2003) 101 Michigan Law Review 2677

at 2685-6; see also Ie. Kersch, The New Legal Transnationalism. The Globalized Judiciary, andthe Rule of Law (2005) 4 Washington University Global Stlldies Law Review 345.

33 5 US 137 (1803).

34 Confirmation Hearing on the Nomination of John G. Roberts, Jr to be Chief Justice of theUnited States: Hearing before the Senate Committee on the Judiciary, 109th Cong.• 1st Sess.158 (13 September 2005) (statement of John Roberts).

3S A conversation. 525.


society'.36 Even here, though, Scalia argues that to maintain thedemocratic character of judicial review, the Court mustrely on '[t]he

stan~~rds oJ dec..~~.9'~l?t~~~i<:~Il_SoS!~ty --;;~!_tlI~ st~ii~ii~i~I~~c.~~fygf the ~.Qr!9"" not the standards of decency of other countries that don'thave our background, that don't have our culture, that don't have ourmoral views'.37 To retain its democratic legi!!!!l~.sY' th~.JI~JJ..Lact:i~~<;.. ofjuciicial review must fix its gaze firmlY inward, not outward.!..taking cuesir""OmUS politicalTristit~ti~ns--and -~aI~~s~-''"' ,

Tk onlL_th~QIY 9J._C::Q1J~.tilli1i.onalj!1t.er12r.et"'Jion-which permitscQ.!!!J.2arative J;ugagement, fOL~caliil, is_Q!!~.}\'ll~[e__th~j!:14g~Jp.()Js~.5.Q!~hat i~~~__~~~!-_~nsweX_J9_Jh!~_'§Q_~j~_g~gim! itLmY.J.!!cigI!l~nt.._~:l.1!.P

intelligent person', ~!~~~L()P:,_!!I~_'~Qr~_P~~l::~ptJ.Q.Q~~,eU~~.j~.~~if~'.38 ForSCaIia, this ~oUld mean that constitutional adjudicationis no more thanthe imposition of judicial policy--p~~"'fe~;~ces. - s~ili; -·~harpe;ed-·thi~

~bjectio"U-by--suggesti~g-'th~t--judges working with this theory cite.. -----...~--~--,,~-,-,~comparative law selectively, such that '[w]hen it agrees with what thej;}Stices wo'UfdIik;'th;~;e to say, we use the foreign law, and when itdoesn't agree we don't use it'.39 ~~_~i~. _son!i!"m~!il?E __h~~J;"jJ!gs, Q!.i£.f

lustice Roberts !D.:a~~~!!e..s.a.~~ ~'pgiIll, testifY!l)g ~~t!?~!<!!lfL~!J~!~

~for_~PR()X!js.~~ .10Q!<i!lK o~!o~eracr()~~L~Il~_l?!<:ls!!}K.o.l.l.Ly.Q.1!r~~.9~. YC?l,1.caI!.nn<!JAcrn.,. they'_~~ __~~!~'.40 Citing comparative lawpermits courts to achieve desired results while pretending they areengaged in a legal enterprise. For example, Scalia suggested that while the

~L~i!~<!J~r.~jg~Jfl~ in Lawrence to expap~_th.~~c~p.~QfTIk~itY,iI.failed to cite comparative materials in its abortion jurisprudence becausefo!eig~~;~~t~· h~v~-~~;st;;ed ~~p~~d~~ti~; -;igh~'-~~~~"'~~~O:~i-th~~

~-USC~l.lrt-;~In su~:'the cit~ti~n of coml'arati~~c~s~-law'le~d~it;lfttCm~~ll?~~~~41or wh~ Judge P~s-~e·;ha;-;;fu;;~~rt:~-;~·~'j~di~iarfiileafing',42 designed to obscure the reality of judicial choice. And althoughhe clearly disagrees with Scalia on the propriety of comparative citation,Breyer accepts that it is wrong for judges to <substitute their ownsubjective views for that of a legislature'.43

The second objection to the mi8!'~ti-oI! of~onstit!:1tionalideas is that itfacilitates the ~rQ.~!Q!L9J U.S sqys:reigQ.ty by _fufdQrce~Qf.gloQa.!~~!!2!!'~_. - .-.:.;...-..:~_.~;..-"...~.'-,::;:,--~-';':,..,.:;" ';':~''''~-''-'.;..-_.-'--

36 Ibid, 37 Ibid., 526. 38 Ibid. 39 Ibid., 52!.

40 Confirmation Hearing on the Nomination of John G. Roberts. Jr (13 September 2005).41 A conversation. 531. 42 Posner. No Thanks. 43 A conversation. 539.

8 SUIlT CHOUDHRY

The concern is not about the imposition of the elite social, political, andeconomic views of the judiciary on the US people. Rather, the fear is thatcomparative.-.-9!.a.!iQJ:!_lJ!±!!LS;Qu,qLiD!Q..~gC::Rts.J;lfsJUl:$id_e __p_oxeJ"s [nternatio~~ public opinion, international organizations, and evenforeign governments - to thwart the will of the US public. Roger Alford

__... ~_._~.... .,.._."~,,,--._._,-,r.~.>------.~,oc.-_._.r·'_:;:f ....~

has coined the term 'international_ co~ter~jg_riJman_.cliffic<ulty' tocapture this idea.44 As Alford writes, '[u]sing global opinions as a meansof constitutional interpretation dramatically undermines sovereign~ byutilizing the one vehicle - constitutional supremacy that can trump thedemocratic will'.45 By contrast, constitutional adjudication which relieson sources internal to US constitutional culture is for that reasonlegitimate. As one questioner from the floor at the Breyer and Scaliasession put it, 'these [i.e., non-US] legal materials have no democraticprovenance, they have no democratic connection to this legal system, tothis COiistitution;I-sySt~~,~d thus lack democratic ac~ountability ~S~tln.'~e;(al~\46- ..... .. ...•.... - 'n' .. " .. - -.'- _.--

An important part of this argument is the elision of the distinctionbetween international law binding on the United States and comearativematerials which ";"e not. Although their claims to authority in dom;stic

"..",. _...legal orders are totally different, the two are nonetheless referred totogether in the literature as 'international norms', 'international values',or 'international sources'.47 As Breyer said on an earlier occasion, 'mydescription blurs the differences between what my law professors used tocall comparative law and public international law. That refusal todistinguish (at least for present purposes) may simply reflect reality'.48Harold Koh uses the term 'transnational la\'{' to conjoin the internationaland the comparative.49 What binds these hitherto distinct bodies of lawtogether is that thl:Y ar~J!:om out~.~~_~e lJ~~~~!ate~ and are viewed asthrea~.~Q.J!~...i9.Y~.r~j~"!y. Into this broad category fall the decisions ofUnited Nations bodies, international treaties (including those to which

44 R.. Alford, Misusing International Sources to Interpret the Constitution (2004) 98 AmericanJOIITlla! of I/ltemational Law 57 at 59.

45 Ibid., 58. 46 A conversation, 540-1.47 See e.g. Alford, Misusing International Sources.48 S. Breyer, The Supreme Court and The New International Law, speech, 97th annual meeting of

the American Society of International Law, available at http://www.supremecourtus.gov!publicinfo/speeches/sp_O~3.html.

49 The Globalization of Freedom (2001) 26 Yale Jorln/a! of Intematiollal Law 305 at 306.


the United States is a signatory), the decisions of international humanrights bodies and tribunals, and the judgments of foreign courts.

Although not part of Scali~'-s_talk~ this criticism is central to popular-..,-- - .-, ........................_-'-"~,,~~

s..r.!!tcism of~EI(~tlJmJQ ..co111para!iy_e_sg"'!!:.~. Quin Hillyer wrotein the National Review that the reference to European case law inLawrence was 'subversive', because it would lead to a loss of USsovereignty.50 In criticizing this position, Tim Wu describes this fear asthe Court 'obeying foreign commands'.51 Chief Justice Roberts has pickedup on this criticism as well, testifying that '[i]fwe're relying on a decisionfrom a German judge about what our Constitution means, no Presidentaccountable to the people appointed that judge, and no Senateaccountable to the people confirmed that judge, and yet he's playing arole in shaping a law that binds the people in this country. I think that's aconcern that has to be addressed'.52

Opponent~ of the _J:I.ligrat!9Jl of co~st!tuti~I1~~e..~_.!!~~_~Q.nfr~I!te4

Breyer and his colleagues with a dilemma. They have defined the terms of~.L...-_"'_~''-''''_'_'''_'_' .....~ ..~_...', .~~

debate: on one hQInof the.dilemma, comparative jurisprudence is legally-- -~"- '.__.~.- - .._- .. - '--'-~'__.,....._-." .....binding. On the other hom, it is not. But either use is illegitimate. If~;;ti;;;;~t~;ial;-~~;-bindinitheC~~rt'i;~~ting-~s-~'~g;~t ~

~-;ti:thoritI~ifi.tE!!ot, '~mParative citati~~ i~wi~d~~:d;e;i;gfor judfaariegislati~~: These ar~~~t~'~e~~' the ~~~'t~-ine~t that.,,---_...--_. - .... ,. .....-evening. B!!yer desper'!l~!Y.n.e.eJleq to .aYJ1id_the_diJemma. Qy~challengingthis way of framing ~~_P!!"~Q~m,J;/!J! j@ed miserably. Even worse, faced~th .scai[~s__().bj~c:ti~Il_!h~~t1l.~ __C:~~P~!~1ive_eng~g~!U~~ is part of a

r politi.Eal ~g~nda, B~yer effr:.ctivelY..!l:g!~d. One reason for citing the caselaw of other national courts, said Breyer, was to consolidate judicialreview in transitional democracies:53 . ---- ._'>

... in some of these countries there are institutions, courts that are

trying to make their way in societies that didn't used to be democratic,

and they are trying to protect human rights, they are trying to protect

democracy ... And for years people all o'.'ex:JI!e~~~rld.~!.c:_~!ed !h-e

Supreme Court, why don't we cite them occasionally? They will then~--~ _.....-,~-_..-.. ... ~ -- _. - ..-.- ... ~ ..~~~.~_ .._--"'-"~. '"

so Q. Hillyer. Constitutional Irrelevance: Forfeiting sovereignty for sodomy, Natiollal ReviewOllline, 7 July 2003.

51 T. Wu, Foreign Exchange: Should the Supreme Court care what other countries think?, Slate,9 April 2004.

52 Confirmation Hearing on the Nomination of John G. Roberts, Jr (13 September 2005).53 Transcript of Discussion.

10 SUJIT CHOUDHRY

go to some of their legislators and others and say, 'See, the Supreme

Court of the United States cites us.' That might give them a leg up ...

Other members of the Court have joined Breyer in offering this crude,.,-.-----------_._--------- --~,-

over-blown, realpolitik justification. Justice O'Connor thus remarkedffiat·-atingthe--c·;se-T~w-ofoiher~nationaT courts 'wU(create~ thaJ ~aiI;

i~i;;:t~;f g99Iimp'~e~§iQ~:·Wh~~·USC;;~~ts ·~;~;~to be cogniz~nt of......~ .-.... , "_..-,.- - ,

other judicial systems, our ability to act as a rule-of-Iaw model for othernations will be enhanced'.54 Justice Ginsburg pushed this line of thinkingeven further, suggesting that this interpretive practice promotes comityon other fronts, which is valuable 'because projects vital to our wellbeing - combating international terrorism is a prime example - require!n!~.t~~!Lc.RI?Jl.~~t!9_l!:. of nations the world over'.ss

r.R.e r~l£€:~~nt~re~~m an~Jh~.~il!!re ofJJ.SiyQges.i!lUy_to_artkulateand jU-?!~~.t1.I~j!.p~!i£!£~,!,i.~p. i"!! ~_~!: .'Ei.~~~!~~.{)~ C~~~!i!':l:tional ide~s2~linked. Judicial realism is fueled by the poor fit between traditional legalcategories and the emerging phenomenology of comparative constitutional argument. This is reflected in the difficulty that judges and scholarshave faced in simply trying to describe what is taking place. Proponentsassert that foreign case law is not 'binding' or 'controlling,56 but thencannot explain how or why it is used instead. To say that courts 'rely,....upon' or 'use' foreig!l-_t~riS.l!!.l;ld~!!~~_b.ef~'l!§e_ .jUs_lI~ful) or 'hel:Rful'> orthat US courts should 'construe [the US Constitution] with decentrespect;5?lor-~~;p~r~Jiy~j!IT~sPJJJMI!k~' does not explain why-;~- how;ucfj~·ris.p;~~~~~e - is helpftU:. Nor, on a deeper level, do-;s-it--;;~ktojustify the appropriateness of seeking that kind of help.

1 In short, the practice of comparative constitutional law has outgrown11 the conceptual apparatus that legal actors use to make sense of it. It is the~l responsibility of the bench, the bar, and the academy to respond. The

failure to do so until now has had severe costs. In a remarkable series ofresolutions in the US House of Representatives and Senate, US legislatorsfrom the Republican Party have begun to challenge the Court's

54 S. O'Connor, remarks, Southern Center for International Studies, available at http://www.southemcenter.orgiOConnoctranscript.pdf.

55 R. Ginsburg, Looking Beyond Our Borders: The Value of a Comparative Perspective inConstitutional Adjudication (2004) 22 Yale Law and Policy Review 329 at 337.

S6 A conversation, 524, 528 (words of J. Breyer).57 H. Koh, International Law as Part ofOur Law (2004) 98 Americall jotlrllal ofImematiollal Law

43 at 56.

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MIGRATION IN COMPARATIVE CON.STITUTIONAL LAW 11

cosmopolitan turn.58 The proximate cause for the political reaction isidentified in every legal text as Lawrence v. Texas, which struck a politicalnerve. But in contrast to Scalia's criticisms in that case, which allegedjudicial activism, the dominant concern voiced in Congressionalresolutions has been the perceived !hreat to US soverei@!}'. Thisargument was made most clearly in a ~005 S~!.1...ate resqll!..t:!Q!!, which statesthat the 'inappropriate judicial reliance on foreign judgments, laws, orpronouncements threatens the sovereignty of the United States'. Suchreliance is inappropriate because it contradict::; the Court's institutionalrole in the US constitutional scheme: 'to faithfully interpret theexpression of the popular will through the Constitution.' As aconsequence, the resolution states that !judicial inte!pret~!ionsJ~gardJng

the~!!!K.Qt ~~o_~sti~.H!!on ... sl<?_~..9-._~9!_~_~_.~~~~_~.l~~~g~le_.()!jnpart on judgment$, laws, or pronouncements of foreign institutionsunle-~~~ch- i~~~ign. j~dg~ents:'-l;ws',·~r-"p;onouncemeiitslntorm-·.a~~nde;:st~~4i~g~fth~ ~~igi~;;j-mea~i~g~ofili; C~~~.t:i!~tiQ~:·Q(th..~~Yif~ftSt~t:~~;.59

Hearings on the 2004 House resolution provide a window into thepolitical fallout from the Court's inarticulate comparative turn.60

Representa!~v~.s__~~tl_~~~d . the .. alarm ~n. ,the language of populaFsovereignty. The use of foreign law was described by Republicanlegisl.rt~rs· ~~-an 'alarming new trend',61 a 'disturbing line of precedents'62which 'undermines our democracy'63 and is 'quietly undermining thesovereignty of our nation'.64 Representative Chabot, opening thehearings, argued that that US constitutional interpretation relied onpopular consensus, and 'the relevant consensus behind American law is

58 The three leading resolutions are the Reaffirmation of American Independence Resolution,H. Res. 568, 108th Cong., 2d Sess. (2004) which died in the Judiciary Committee in 2004, andH. Res. 97 and S. Res. 92, which were introduced in the 1st session of the 109th Congress in2005. Indeed, legislators have gone so far as to propose legislation to prohibit the Court fromciting foreign materials. See e.g. Constitution Restoration Act of 2004, H. R. 3799, 108thCong., 2d Sess. (2004) and Constitution Restoration Act of 2005, S. 520, 109th Cong., 1st Sess.(2005).

59 S. Res. 92, 109th Cong., 1st Sess. (2005).60 Appropriate Role of Foreign Judgments in the Interpretation ofAmerican Law: Hearing before

the Subcommittee on the Constitution, of the House Committee on the Judiciary, 108thCong., 2d Sess. 568 (March 25, 2004).

61 Ibid., words of Representative Steve Chabot (R-OH). 62 Ibid.

63 Ibid., words of Representative Stanley Bachus (R-AL).64 Ibid., prepared statement of Representative J. Randy Forbes (R-VA).

12 SU]IT CHOUDHRY

not a world consensus, but rather the consensus of those in the UnitedStates on the meaning of the words used in the Constitution andlegislation when originally enacted'.65 The problem with recent 'decisionsof the United States Supreme Court that are based, at least in part, onselectively cited decisions drawn by a variety of foreign bodies'66 is that"[t]he ~~ricaripeoPk'have had no opportunity to vote on any of theselaws'.67

Indeed, Representative Ryun went one step further, equating thecitation of foreign materials with foreign interference in the UnitedStates' internal affairs. He suggested that 'the Supreme Court, in usingthe laws passed by these countries to interpret and rewrite American laws,are achieving ... foreign interference in our government'.68 The next,absurd move in this line of argument is the truly paranoiac fear thatforeign courts could draft their judgments maliciously to harm theUnited States, in the hope that a US court would cite that judgment.Asked Representative Forbes, 'My big concern is that there could verywell be countries out there who are hostile to this country ... How willour justices know who out enemies are today; will they be our enemiestoday; will they be tomorrow? When the decision was decided in thatcountry, were they hostile or not?'69 Jeremy Rabkin, testifying as anacademic expert in the hearings, stoked these fears in his answer: 'This isnot hypothetical. It is not remote. It's not implausible. This is where weare right now ... I think they are absolutely trying to infiltrate into ourjudicial system this idea that our judges need to listen to what theirjudges say, and we should say no to that.'70

Democra!~s:. re.pr:.~s~.~t<lti.y~.s. did JiJ.tle. JQ_r~sP..Qnd_eff~ctively. They-- -- .... ' .... -, -." --. - -described the resolution as a threat to judicial indeE..endence and thesq;aration ofpowers:-Thus, Represent.rti~~ 'S~hiff said that th~ resol;rtic;was partOf"~'trendthat concerns me, and that is the deterioration of therelationship between the Congress and the courts', and 'a shot across thebough [sic] of the judiciary'.71 The resolution, because it purported topass judgment on the Court's decisions, was 'a violation of the separation

65 Ibid., words of Representative Steve Chabot (R-OH). 66 Ibid.61 Ibid" prepared statement of Representative jim Ryun (R-KS). 611 Ibid,69 Ibid" words of Representative J. Randy Forbes (R-VA).70 Ibid., testimony of Jeremy Rabkin, Professor of Government, Cornell Unversity.71 Ibid., words of Representative Adam Schiff (D-CA).

r,\

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ofpowers, and at worst, an attempt at intimidation'.72 Entir~ absent~"..:- " - ---

from Democratic defences of the Court was a substantive response to the---~ --

9?urt's ~l?E1P~~!ive.!.1!!n. To a large extent, the failure of the Democratsis a function of an underlying judicial failure. Since the Court had notequipped them with the intellectual resources and argumentativeframework to respond, Democrats were forced back to a formal,institutional defence of the Court. The unfortunate effect of standingon constitutional structure was to elevate the stakes and to shut downpublic discussion of the Court's reasoning, when in fact the legitimacy ofthe Court's judgments requires an active public discussion on preciselythe issue of interpretive methodology.

Situating the migration of constitutional ideas in thediscipline of comparative constitutional law

The gap between the intellectual architecture of constitutional law andthe increasing speed of the migration of constitutional ideas poses achallenge not only to courts engaged in this practice, but also to theacademics who study it. The migration of constitutional icklls a~qQssJ~1lJ.

s~stem~_ i§ ,JeJ?idlL~!E~lgin~L.~~~ne ?!..:..':~;, :~c~~!!~h.!e,~1~~£~c,,,~co~t~!'~~lr_~2~~_tit~!?E~.J~!~£!i£~; The nu.gration_.QUon~!i:~ti()_Jl&.ideas occurs at_.Y!.tigu~ stages in the life-cyc!e <>.(~.o.4':.~C:Q~!.tilu.tj.Q~S.

The use of forei~~~_~~_c()E~~~l:l,I!~L~!~!PE~t!l:tionisJ?~LQ!1eexample. Another is the use of foreig!!..£Q!lstitJJtions..ClLID.QQ.ej§,j!l.JPs:proc~~f constitution-making. Moreover, the migration of constitutional 'ideasoccurS'-not-'o:riiy across national jurisdictions, but also

Ee~g, the. I.1ation~_and_ th.:.~l!E!_~Jl~.Ji~~~.leyel. The most prominentexample of the latter is the process surrounding the drafting of theEuropean Union's Draft Constitutional Treaty, which drew heavily uponthe constitutional traditions of member states both for specificinstitutional prescriptions and, indeed, for the very idea of constitutionalism itself as a way to understand and describe the character andcontent of that project.

'!!Ie migration of constitgtiQ.:oal..i9.-?J!s bJ!.!J)eenjds;ntifieQ!o~~extent at a descriptive level. But many basic conceptual issues havereceived almost no attention in th~Ta-;g~·~nd"g~~~~g·critical-litera.tU.re... - ~,,~---- -~---"""""--'-

72 Ibid., words of Representative Jerrold Nadler (D·NY).

14 SUllT CHOUDHRY

on comparative constitutional law. For example, the existing literature hasnot addressed systematically!.!t,.!.m}thodolg,gy ofconstitutional migration,nor the normative underPinnings ofthis enterprise. This lack ofattention is

~~~-ft",l'I.I;:'~~_""""''';'''''>-;;;;;~';''''''''''' !.!:H-·>....•........

all the more surprising given that comparative constitutional law is rapidlyemerging as a major field within legal scholarship, as evidenced by two hewcase books,?3 and a dedicated journal.74

A brief review of some recent book-length studies on the cutting-edgeof comparative constitutional scholarship quickly illustrates how the_......----.....

~~~~~!.1 .. ,~,f ..c(),~~t.i!1:!~i~!!.~~i4e.1l~J.~_I!9_~._Y~.t,.~._ce.!!_y~,S2~~~rn LtP.ediscipline. These important works fall into two broad categories. The first~;t~hkh includes Mitchel Lasser's Judicial Deliberation/5 and PeterOliver's The Constitution of Independence,76 consist of in-depth casestudies of a handful of carefully selected constitutional systems in orderto compare and contrast how they respond to common problems. Thesecond set, which includes Trevor Allan's Constitutional Justici7 andDavid Beatty's The Ultimate Rule ofLaw,?8 sets outJ!nivers~!J§Ub.e_Qries~of

~~Il':;.t!~,':ltional l~~, wh.!ch.<l.!!,~g ..cO!1§rttt1tional.<:()Jl.lt~. to conv~gL9n

common'dintetpretations. Although they raise and address importantqJie~ti;;;~,';e'ithe;~~t'~;plores the migration of constitutional ideas.

Consider the first body of work. In The Constitution of Independence,Oliver asks how the former British colonies of Australia, Canada, andNew Zealand achieved constitutional independence from the UnitedKingdom through entirely legal means, via enactments of theWestminster Parliament. The difficulty is that under the doctrine ofparliamentary sovereignty, the Westminster Parliament could theoretically repeal the enactments whereby independence was granted.Achieving total constitutional independence while respecting constitutional continuity seemed impossible. The doctrine of parliamentary

73 V. Jackson and M. Tushnet, Comparative COllstittttiollal Law (Foundation Press, New York,1999); N. Dorsen et aL, Comparative COllstitlltiollalism: Cases alld Materials (Thomson/West,St Paul, MN,2003).

74 The Illtematiollal JOllmal of COllstitutiollal Law.75 JlIdicial Deliberatiolls: A Comparative Allalysis ofJudicial TrallsparellCY alld Legitimacy (Oxford

University Press, Oxford, 2004).76 The COIIStitutiOIl of Illdepelldellce: The Development of COllstitlltional T1leory itl Af/stralia,

Callada and New Zealand (Oxford University Press, Oxford, 2005).77 COllstitutiollal Jf/stice: A Liberal Theory of tile Rille of Law (Oxford University Press, Oxford,

2001).78 (Oxford University Press, Oxford, 2004).

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sovereignty accordingly pushed colonies toward legal revolution, in orderto establish an autochthonous source of constitutional title.

Oliver's richly documented and insightful analysis suggests that the--ans.~~r§ Q.ff~!e.d.1:>y constituti()!1.~. actor~ ill the Jormer.colonies.poinUo.a_i~~onceptualization.9f pa..I"fu2n.J[l~ty...s()~r:tg!!:!X. What is of salience is

how Oliver frames his subject of inquiry and his method ofanalysis. Oliverseeks to untangle and explain differences and similarities, observed andunobserved, between three constitutional orders, in order to interrogatebasic assumptions about the relationship between parliamentary sovereignty, constitutional independence, and legality. Oliver engages in thestaticcomparison ofdifferent legal orders, examining them as separate legalentities in isolation from one another. What Oliver is not interested in, andhence does not study, is wh.ether thesekg~ordC;s interact~aTn]i'J.~!J.ceone another, if at all. Th~;,Oli~er-i~effect de~~{f;esI~ur'- r~i~ted but~-~--_.".--

separate sets of conversations - amongst respective constitutional actorswithin Australia, Canada, and New Zealand over how to reconcileconstitutional continuity with constitutional independence and amongstBritish legalactors over the same question. What Oliver chose to not exploreis the additional question of how constitutional ideas regarding thesefundamental constitutional questions migrated acrossth~ three formerco)omes:' . -.. ..

,- Now let us move to the second body of work. In Constitutional Justice,....- ....",; ..i.,.~"'~,.._

Allan is explicitly universalist, setting out a constitutional theory framed~~d 'the bas~..~prinEp'les _.oTliberarconstitution~i~~;:-'~hi~~'b..!.Q.adly applicable to every liberal democracy of the familiar WesterniYPi.79 -His---;-n;Iysis s~ttles- bacTc--and .. forth betWeen-theoretICald.isCii.'ssions of abstract principles of justice which, on Allan's account,inhere in the very idea of liberal democratic constitutional order, andjudicial decisions drawn from a range of actual liberal democratic regimesin the common law world. The link between the two is intimate, sinceconstitutional interpretation within particular jurisdictions 'is inevitablydependent' on 'more abstract principles of legitimate governance'.80

Because of the tie between universal constitutional theory andadjudication within particular constitutional orders, Allan offers anarrative of legal convergence. As he writes, 'raj general commitmentto certain foundational values that underlie and inform the purpose and

79 Allan, COlIstlwtiomll 80 Ibid.

16 gUJIT CHaUDHRY

character of constitutional government ... imposes a natural unity onthe relevant [common law] jurisdictions,.sI Accordingly, 'these (commonlaw) jurisdictions should, to that extent, be understood to share acommon constitution,.82

Because ofits extensive reliance on comparative materials, Allan's workcounts as an important piece of comparative constitutional scholarship.What are worth dwelling on are the mechanisms of constitutionalconvergence in Allan's account. One obvious mechanism is constitutionaltheory itself, which sets a benchmark against which the particular deciSIonsof specific common law jurisdictions can be assessed. If, as Allan suggests,deviations from this model are 'legalerrors, reflecting failures to understandthe full implications of the rule of law',83 then ~I!l:gl.AIlfQ.1].,~!i!H.tio~~

theory can serve as a reason for courts to correct those legal errors. But"..,-.~

Allan's account would also suggest that comparative materials whichcorrectly apply his constitutional theory could also serve this role. Indeed,

~~ill!l-:~17.2:Q.l!§",,~~£!!g!l.K~M..Illl,~l!~I~~ cl.?E~~~oX;al £~ol~~t, the.~;is no reason against the citation offoreign cases. Allan is ckarlYJ:ecs:ptive to

....~""~... , ....:._~._,,:_"'::~ _-:~'.-;;.'.'., ,_.',,_ .d ... • ...;~_~._~:t',,"",_,., ~~'--,.l..!.-,."..-•.\.-.,.;.,.t.",,"~ ---- __-.--___oor..::...v

.the migi:~tio.n,9f constituti<;>?~.id.~as:But since Constitutional Justice isprin1arily~a-workof normative constitutional theory, Allan does notsquarely address this question. .......-- . --,-

S;-where doe~ t:liis leave us? The migration of constitutional ideas stillremains relatively u~_d in the vast and growing literature on

~.__ ._-_.."""..: comparative constitUtIonal law. Detailed case studies of common issues

across a small set of legal orders have consisted of static comparisons of"""'"'" -different constitutional systems, but have not examined how and why

constitutiona:rIc.kas have migrated <icross·~ystems. Normative-~oii.Stitu

tiOli;J-theorTsfi'have"set-oUi:universaI'accoUiltS of liberal democraticconstitutionalism, have called for those accounts to inform constitutionalinterpretation across jurisdictions, and are open to comparativeengagement. They have not, however, examined how the migration ofconstitutional ideas figures into their narratives of convergence. To besure, the existing literature addresses important questions. But thepremise of this volume is that the field should go in new directions, andthat the migration of constitutional ideas is desperately in need of seriousacadenuc attention.---------- ._-~-~-

81 Ibid., p.4. 82 Ibid., p.5. 83 Ibid.

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MIGRATION IN COMPARATIVE CONSTITUTIONAL LAW I]

Comparative law an'd legal transplants

This volume also intervenes in ~ recent debate among comparative lawtheorists over legal transplants, sparked by Alan Watson's famous

'argument.84 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 ofwidespread transfer suggests there is no close relationship between lawand the broader society, and finally, (d) the discipline of comparative lawshould be oriented toward the study of transplants. In his well-knownresponse, Pierre Legrand suggests that Watson's claims all rest on anunderlying error - his reliance on an incorrect concept of a legal rule. ForLegrand, laws are not merely 'bare propositional statement[s]', as Watsonassumes, but rather 'an incorporative cultural form ... buttressed byimportant historical and ideological fonnations',85 'the frameworks ofintangibles within which interpretive communities operate and which havenormative force for these communities,.86 Consequently, 'interpretationis ... the result ofa particular understanding ofthe rule that is influencedby a series of factors ... which would differ if the interpretation hadoccurred in another place or in another era'.87 Thus, a legal rule consists of

~o~i~ional_~~~teI?_e3tas such and it.si~~st<E~aning-~jointly constitute the rule'.88 Legal transplants could only occur ifboth the

r~~<!_!~~__<:~J.1J~._ could '.Q~._!~!nsf~!!:~.fl )etw~it t~g~~Syste1I!s, J!!lexceedingl~~b::,EL~~t. IIlJ~~J.1ev.r <:<:l!1.~~xt, a legal rule 'is un4~_r.s!pE..d

differently by thehost culture and is, therefore, invested with a culturespe~ifi~-';;-~;ni;;'g ;t va~'i';~c~-~th the earlier one;:89 In oth~ru~~d~:it

~~~-a-diff~~ntrule. Legr~lcoi;d1ides-t:h~'t '''legal transplants" ;;:::;::= -----~'''"--=.''--..., ~ - -~_." _ ---- _ -. __ .-.-. ~._~-- --"'"-

impossible'9o and that 'at best, what can be displaced from one jurisdictionto another is, literally, a meaningless form of words'.91

Legrand's critique ofWatson is nested in a larger theory of the purposeof comparative law.92 It is an explicit response to the functionalist

84 Legal Transplants: An Approac11 to Comparative Law (Scottish Academic Press, Edinburgh,1974).

8S P. Legrand, What 'Legal Transplants' in D. Nelken and J. Feest (eds.), Adapting Legal Cultures(Hart Publishing, Oxford, 2001), p.55 at p.59.

86 Ibid., p.65. 87 Ibid., p.58. 88 Ibid., p.60. 89 Ibid. 90 Ibid., p. 57.91 Ibid. p.63.92 P. Legrand, The Same and the Different in P. Legrand and R Munday (eds.), Comparative Legal

Studies: Traditions altd Transitiom (Cambridge University Press, Cambridge, 2003). p.240.

18 SUJIT CHOUDHRY

impulse, embodied most explicitly in the work of Zwiegert and Katz, toidentify sameness across legal systems. In their famous formulation, 'legalsystems give the same or very similar solutions, even as to detail, to thesame problems of life' and 'the comparativist can rest content if hisresearches through all the relevant material lead to the conclusion thatthe systems he has compared reach the same or similar practical results'.By contrast, they contend, 'if he finds that there are great differences orindeed diametrically opposite results, he should be warned and go b.ackto check again whether the terms in which he posed his original questionswere ... purely functional, and whether he has spread the net of hisresearches quite wide enough'.93 Basil Markesinis has expressed similarviews.94 The point of these scholars is to explain away diversity, 'to beabove diversity, to be intrinsically diversity-free'.95 Instead, Legrand callsfor difference in response to the urge for convergence. In his view,comparative lawyers should:

... resign themselves to the fact that ~~.!.1!E.~~nonand that, therefore, differences across legal cultures can only ever be<.>~!~<.>.~~ ..~lllP'~r,~ec.!:!r ·:·."':'~[TjheY·~~-Usr·P~;P~~~fully·-pr1Vilege theidentification ofdifferences across the laws they compare lest they failto address singularity with scrupulous authenticity. They mus~eth I . d"({l . 96emse ves roto l~rence engmeers.

_",_ •.li.~

If comparative law is about difference, to Legrand, it would appear thatlegal transplants are not worthy of serious study. But as JamesQ. Whitman perceptively notes, it is possible to separate the study oftransplants from the call for convergence. As he writes in direct responseto Legrand:

... we must be careful not to slip into the error of believing that legalpractices can be so rooted in their 'cultures' that they can never betransplanted .. , [1}n raising doubts about the 'transplantation' oflegal institutions, we run the risk of neglecting what is unquestionably a fundamentally important issue: legal systems do permit---- ..-

93 K. Zweigert and H. Katz, Illtroductioll to Comparative Law, T. Weir translator (3rd rev. edn,Oxford University Press, Oxford, 1988), pp.39-40.

94 Foreigll Law lllld Comparative Metllodology: A Subject alld a 17/esis (Hart Publishing, Oxford,1997), p.6.

95 Legrand, The Same and the Different, p.248. 96 Ibid., p.288.


. tfanscultural discussion and transcultural change. Indeed, theyundergotrariscUitural chan:g~-alfth-e iimi.9T--···-

A case in point is the law of sexual harassment, which has beenborrowed by Western European legal orders from the United States. Theresult has been 'a sexual harassment law that is strikingly different fromits US model', since 'the new European sexual harassment law focuses ondignitary interests in a way that its US model does not'.98 To be sure, legal

lules are 'being more deeply transformed than the metap~or is capable of

co~veyi~.99 B~t to acknowledg~-.!.~at_!e.g;~-.!~~~ .:~a.Ilg:".~~.~~:}'_~~~~teA far fro~-.--!:.~g;:~s!~ ~.. ~§~_er!~.Q.n.: Jh3;!Jeg~. t~a!1JI~lan~§_.~r.El. J2g!£@:yimpossible. As Whitman concludes, 'some kind of borrowing is surelytaki~g'place and we need some account of what is going on'.100

David Nelken's response to Legrand likewise accepts that his views onlegal transplants are 'incontrovertible, but also unhelpful', for baldly tostate that legal transplants cannot 'reproduce identical meanings andeffects in different cultures,IOl directs the field away from the facts on theground - i.e., 'that legal transfers are possible, are taking place, have takenplace and will take place'.I02 Indeed, legal transplants are oftendeliberately sought after by the receiving legal order. Constitutionaltransitions, for example, have often looked to comparative constitutionalmaterials as the engines of domestic constitutional change, as 'geared tofitting an imagined future'. 103 And so if Legrand wants comparative law'to concentrate here mainly on how best to preserve existing differences,we would surely be missing the point'.104

The migration of constitutional ideas anddialogical interpretation

What Legrand has accomplished is to illustrate the inaptness of the legal~ .

transplant metaphor. But the shortcoming of a single metaphor is not agood reaso~bandonmetaphors altogether. As Kim Lane Scheppele

97 The Neo-Romantic Turn in P. Legrand and R. Munday (eds.), Comparative Legal Studies:Traditiolls alld Trallsitiolls (Cambridge University Press, Cambridge, 2003), p. 312, pp. 341-2.

9. Ibid., p.342. 99 Ibid. 100 Ibid.101 D. Nelken, Comparatists and Transferability in P. Legrand and R. Munday (eds.),

Comparative Legal Studies: Traditiolls alld Trallsitiolls (Cambridge University Press,Cambridge, 2003), p.437 at p.442.

102 Ibid., p.443. 103 Ibid. ICH Ibid., p. 444.

20 SUJIT CHOUDHRY

notes in her contribution to this volume, '[m]etaphors matter in shapingthought, and so it is crucial to get the metaphors right for highlightingkey features of the matter under discussion'. Metaphors highlight somefeatures of phenomena, while casting shadow on others. So the challengeis to locate the right metaphor.

Unfortunately, the inadequacies of the idea of legal transplants in theworld of comparative law are matched by its counterpart in comparativeconstitutional law, (~tional borr~'. The dominance of thismetaphor was confirmed by the devotion of a symposium to constitutional borrowing in the leading journal in the field, the InternationalJournal of Constitutional Law. lOS Yet at the same time, the fact that onlyone article squarely endorsed constitutional borrowing (in South Africa),while the other contributions described the failures of constitutionalborrowing in specific contexts, argued for the impossibility andillegitimacy of constitutional borrowing as a general matter, and advancedthe claim that ~~~~!lli.do~s not captur!J!1e fi!!! rang~9~ses to w~hcomparative constitutional materials are used, inadvertently highlightsthat "the"met~]Jhor-~Yh;;~·~~tlivedits~;fufuess.

Scheppele catalogues the deficiencies of constitutional borrowing, eachof which is reQ.J;:.e~se4.~~y-th~_~~~!iQhQ!, __gr migr!QQn. Iqeas which arebor~~~~<i.E~rry no implicit promise of return, altho'p"g!.l~ idea ofGrowin~Ls.ee.J.l:l~_t~~guireit. Migration does not carry_the implicationthat constitutional ideas will necessarily be returned ~y the reciEientjurisdicti~~.-:Mo~~~~ii:·"Wants -;q~~p~~~i~~nce t~ the fact ofmo-;~~ent''of constitutional ideas across legal orders, as well as to theactual ideas which are migrating.

105 (2003) 1 International Journal of Constitutional Law 177-324, the relevant articles are: B.Friedman and C. Saunders, Editors' Introduction, p. 177; D. Davis, Constitutional Borrowing:The 1n.fluence of LegaJ. Culture and Local History in the Reconstitution of ComparativeInfluence: The South African Experience, p.181; 1. Epstein and J. Knight, ConstitutionalBorrowing and Nonborrowing, p.196; Y. Hasebe, Constitutional Borrowing and PoliticalTheory, p.224; w. Osiatynski, Paradoxes of Constitutional Borrowing, p.244;C. Rosenkrantz, Against Borrowings and Other Nonauthoritative Uses of Foreign Law,p.269; K. Lane Scheppele, Aspirational and Aversive Constitutionalism: The Case forStudying Cross-constitutional Influence Through Negative Models, p. 296. For other relateddiscussions see V. Jackson, Comparative Constitutional Federalism and TransnationalJudicial Discourse (2004) 2 International Journal of Constitutional Law 91; W. Eskridge,United States: Lawrence v. Texas and the Imperative of Comparative Constitutionalism(2004) 2 Illtemational loumal ofConstitutional Law 555; D. Law, Generic Constitutional Law(2005) 89 Millnesota Law Review 652.


Borrowing inaccurately connotes <;LwnersJ!!p on the part of the lenderand hence ongoing control on the part of the source constitutional orderover use by the recipient jurisdiction of that which has been borrowed. Incontrast, the migration of constitutional ideas does not necessarilyconnote cont!:Q! on the part of the originating constitutional order.Indeed, the migration of con~tjQIlal ideCls .!!!-aY9.C:l:!!rwitlm.l!L!Aeknowledge or~p~~~slCin;~.2t1J:l!L$.Q~.~ejgr.isdjction.1\i!gLllt.!2n i~_gf!:tncovert and illicit.~~,----.-

Moreover, borrowing implies both that ideas are a positive influence andthat·th~y··m~~t--be-used'~-is', WithoUi·signiflcant modifica:tfonor

~ptati~n. B~t the metaph()rof ~iirati~~-~~li~it1y0E~ns the. door to.a~ge of ;;~s f~; ~o;;stitutionaJiqeas, angJqr. the.~ut~oI!!~_~QLthe~_.~~~--- ..- ~-_., ,._.".....-~.. ~ -' _., ....... _.--""" ..~~. ,." .'-'

p~o(c~~pii!:r:<ltiy~eng~~!E£nt.Although the metaphor ofborrowingdoes not preclude the possibility of adaptation and adjustment, themetaphor of migration is more amenable to this turn of events. Cons---~~iQ.~,E!~Y~.E~IlSein ~e p'ro£~~~i~~!i~~It is understoodthat the process ofmigratingchanges that which migrates. Indeed, given thecentrality of migration to the contemporary practice of constitutionalism,the truly interesting question is why and how such changes take place.__.__... H_....,..__·~·__ ~_~~,..::::I

Finally, while borrowing shares the functionalist impulse of legaltransplants, the migration of constitutional ideas encompasses a muchbroader range of relationships between the recipient jurisdiction andconstitutional ideas. Neil Walker aptly summarizes the benefits of themigration metaphor in his contribution to this volume:

Migration '" is a helpfully ecumenical concept in the context of the

inter-state movement of constitutional ideas. Unlike other terms current in the comparativist literature such as 'borrowing', or 'transplant'

or 'cross-fertilization', it presumes nothing about the attitudes of the

giver or the recipient, or about the properties or fate ofthe legal objects

transferred. Rather, as we shall develop in due course, it refers to all

movements across systems, overt or covert, episodic or incremental,

planned or evolved, initiated by giver or receiver, accepted or rejected,

adopted or adapted, concerned with substantive doctrine or with

institutional design or some more abstract or intangible constitutional

sensibility or ethos.

Now to be sure, 1:[a.!!splaI1.t.~.Q_rJ~9-rrowing~.as traditiQna.lly 1,l;I;ld~J:gQ9d

are possible. However, the actual place of comparative materials often.;,iI:)'-' .,.--- • .:.,,, ....

-----------_.._--

22 SUIIT CHOUDHRY

does not fit well within a narrow functionalist account of constitutionalconvergence. Indeed, it is possible to take both constitutional differenceand comparative engagement seriously. Difference is an inherently relativeconcept - one constitution is only unique by comparison with otherconstitutions that lack some characteristic which this constitutionpossesses. The Notwithstanding Clause in the Canadian Charter ofRightsand Freedoms, for example, was a unique innovation in constitutionaldesign because other bills of rights did not contain such a provision.106

Since difference is defined in comparative terms, a keener awareness of theparticular can be sharpened through a process of comparison. Comparative engagement, far from necessarily directing courts and legal actorstoward constitutional convergence, can instead reinforce moments ofconstitutional difference.

Elsewhere, I have termed this use of comparative materials as'2.ial~<;.a-f.lo7 Dialogical interpretation in constitutional adjudication isan examele of the tyEe of comparative engagement that lies outside thefra"'inewor~f coti"stittrtional borrowing, but which falls withiI!Jhe s£QPeof the migraifo~-of-coJ!.stitu~iol:i31ide-;S. The goal is to use comparativeIiia'te'rials -;i"'ati"-~t~q,retive foil, to expose the factual and normativeassumptions underlying the court's own constitutional order. First,comparative materials are engaged to identify the assumptions embeddedin positive legal materials. But in the process of articulating theassumptions underlying foreign jurisprudence, a court will inevitablyuncover its own. By asking why foreign courts have reasoned a certainway, a court engaged in process of discursive justification asks itself whyit reasons the way it does. And so the next move is to engage in a processof justification. If the assumptions are different, the question becomes

106 S. 33 of the Constitution Act 1982.107 Globalization in Search of Justification: Toward a Theory of Comparative Constitutional

Interpretation (1999) 74 II/dial/a Law ]oumal819 at 835; The Lochner Era and ComparativeConstitutionalism (2004) 2 Illtemariollal JOllmal ofC01l5ritlltiol/aI Law 1 at 52. My dialogicalmodel of comparative constitutional interpretation is similar to Vicki jackson's 'EngagementModel'. See v. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement(2005) 119 Harvard Law Review 109. As Ernie Young suggests, however, the actual reasoningin Roper is far from a model of comparative engagement: E. Young, Foreign Law and theDenominator Problem (2005) 119 Harvard Law Review 148. Similarly, jeremy Waldronobserves that '[olne of the most frustrating things about Roper, however, is that no one onthe Court bothered to articulate a general theory of the citation and authority offoreign law'.j. Waldron, Foreign Law and the Modern Jus Gentium (2005) 119 Harvard Law Review129 at 129.

-----------MIGRATION IN COMPARATIVE CONSTITUTIONAL LAW 23

why they are different. Comparative en~gement highligbts the--~--~--- --..;;..:..

contingency of legal and constitutional offi~, and opens for discussion~tati()~.iho~e ch3:!-;ct~~~~!!~~HWh~~h_h~(Lr~!I1ail!~d iI!Yi.~~.todomestic eyes. Conversely, if the assumptions are similar, one can still ask~_ ......._- ~_..

whether those assumptions ought to be shared. The types of reasons~-~.-. ,~.~~ .._-------------~.--'" ..-offered will vary depending on the culture of constitutional argument inthe 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 courtmay be able to justify the similarity with, or the difference between, theassumptions underlying its own constitutional order and a foreign one.Comparative engagement, then, lea~s. to_a_heigJ1.!~!!~~Ls.~I!§.~~U~g~1

2lwarene~_!h!.~!:1.g~j~!I'!et~ve clarification and confrontation. But theidentification and attempted jusi:ificai:Ion-ofconst1tuilOnalas~mptionsthrough comparison may lead a court to challenge and reject thoseassumptions and search for new ones. In cases of constitutionalsimilarity, a court may reject shared assumptions and may strike out ina new direction based on radically different premises. In cases ofconstitutional difference, a court may determine a difference to beunfounded, and may rely on comparative jurisprudence as the engine oflegal change.

Frank Michelman has recently applied the dialogical method in aninsightful comparison of the US and South African jurisprudence onaffirmative action on the basis of race. US constitutional doctrine treats~affirmllti~~~E~_~:~=-rv~ng -of_.the-=-~~lgh~~t _-c:.qis~h~t;t9.~aJscrutiny, and h~!-.!"~!1_der.ed it unc~ll~Ii!l.!!toB~Ull_iill.1?_"\!-t~naJIQ..~..x~.ngepi circumstances. The benign motivation underlying such racialcIassificati~d~es not operate to save them. South African constitutional doctrine, by contrast, would a~r to beopentotreatingraetaI~ffirmativ~aaion wit!fcon~[~.!~~·i~~.§~i?~I9.n;re.!Yi~_p'r~d~~k.Q.9 a__notion of objective dignity which replicates the distinction between

benign an~JEii~0~~~~1~~~ftc.~~i~~-w~~~·!~~~V~:f9~~ts~.h~~~J:~j~~~t:9'Michelman asks: 'Is there a lesson for us? Might American jurists do wellto take heed of the South African way and follow suit?,I08 Michelman

lOB Reflection (Symposium: Comparative Avenues in Constitutional Law Borrowing) (2004) 82Texas Law Review 17:37 at 1758; For another example of the application of the dialogicalmethod of interpretation, see G. Jacobsohn, The Permeability of Constitutional Borders(2004) 82 Texas Law

SUJIT CHOUDHRY

traces South African constitutional doctrine to a 'consensually ascribedconstitutional project ... of racially redistributive soci~ transformation.'109 US doctrine sounds ~. a diffe;en~-; of 'the tenaciou~~ak of self-reliant individualism in our ideological soul,.1l0 Against~ • .___ ••• _.,'H __ . _,. .._. __ •• ' •• ,, •.._~_~__

that backdrop, the South African jurisprudence should not be appliedby US courts, because it is not 'compatible with American selfunderstanding'.l11 However, comparative engagement is fruitful, since'[b]y our comparative encounter with the emergent South Africandoctrine .. , we ... clarify our picture of ourselves'.112 .

The dialogical method of comparative engagement may equip UScourts to respond to Scalia's challenge. It may help the leaders of the USSupreme C-;;ureS-~~mpa~ativetu.In"'to ~ect~.Q!omLbe~een

~nding._<:Dt!.J.l()!!:-b.i.I1~~E:.g..l!.s_e§.of ~.<?!!!p~3!tiv~ Il!.l!:!erials, o~nin~ thespace for a third option which accords comparative..J!laterials . a~~~#y~)~g~-~f~&~£i..With~~t· ~~in-g-th~'f~rs ~fjudicicdacti~or threats to US sovereignty. The Court may itself be heading toward thisunderstanding. Consider the following passage from Roper:

.,:'- .

These doctrines and guarantees are central to the American experienceand remain essential to our present-day self-definition and nationalidentity. Not the least of reasons we honor the Constitution, then, isbecause we know it to be our own. It does not lessen our fidelity tothe Constitution or our pride in its origins to acknowledge that theexpress affirmation of certain fundamental rights by other nationsand peoples simply underscores the centrality of those same rightswithin our own heritage offreedom. 113

Viewed through the lens of dialogical interpretation, the Court'srecourse to comRarative materials can be understood as forcing-the Courtto identify and challenge the assumptions underlying US constitutional

<f<}ctrine. The argument maaeGYth.e majority was tlia:ti.:11e tatiliig of a life-;;fa juvenile is a disproportionate punishment for a capital offencebecause juveniles have diminished culpability owing to their vulnerabilityto influence and their susceptibility to immature and irresponsiblebehaviour. Until Roper, US constitutional law had reached the oppositeconclusion. But comparative law opened up US legal doctrine to analternative way of understanding US constitutional commitments - by

109 Ibid., 1760. 110 Ibid.,1761. III Ibid.• 1758. 112 Ibid.113 Roper, at 1200 (emphasis added).


articulating a different viewpoint ofthe appropriate theory of punishmentin a constitutional democracy. The question for the Court was whether thisviewpoint resonated within US constitutional culture and was coherentwith an intelligible and persuasive interpretation ofconstitutional doctrineand a textual guarantee which is 'central to the American experienceand ... to our present-day self-definition and national identity'. Hencecomparative law simply 'underscored the centrality of those same rightswithin our [Le.• US] heritage of freedom'.

This volume: exploring the migration of constitutional ideas

The dialogical approach to the use ofcomparative materials is but one wayof understanding the migration of constitutional ideas. The chapters inthis volume tackle this phenomenon from a diverse range of methodological perspectives. Moreover, they draw on a rich range ofconstitutionalpractice. Together, the chapters fill a major gap iIi the critical literature.The focus on case studies was a conscious choice. A major impetus for thevolume is that the practice of the migration of constitutional ideas hasoutpaced the theoretical frameworks through which scholars have hithertoapproached the study of comparative constitutionalism. To recast ourtheories of comparative constitutional law, we must therefore turn to adetailed study of constitutional practice. As a consequence, many of thechapters draw on detailed examples from a wide variety of jurisdictions(e.g. Hungary, India, Canada, South Africa, Hong Kong, the EuropeanUnion) on a diverse range of subject-matters (e.g. same sex marriage,freedom of expression, anti-terrorism legislation, judicial independence).A richer account of constitutional practice will serve as fodder for thetheoretical reconceptualization of the discipline.

The volume is divided into four parts: The methodology of comparativism; Convergence toward a liberal democratic model?; C()mparativeconstitutional law, international law and transnational governance; and

. Comparative constitutional law in action - constitutionalism post 9111.

Part I: The methodology of comparativism

The globalization of the practice of modern constitutionalism has had adramatic impact on the legal academy, by reinvigorating the study of

26 SUJIT CHOUDHRY

comparative constitutional law. The first part of the volume will addressbasic issues such as what the point of comparative inquiry is, and howthat enterprise is to be undertaken, by bringing to bear the differingdisciplinary perspectives of comparative law and comparative politics.These two disciplines take different approaches and offer differentconceptual tools to explain the migration of constitutional ideas.

For students of comparative politics, as Ran HirschI argues (On theblurred methodological matrix ofcomparative constitutional law), the goalofacademic inquiry is both to describe observed patterns of constitutionalphenomena and to explain their causes. Against this benchmark, HirschIcarefully reviews the legal literature on comparative constitutionalism,suggesting that it comes up short. The principal difficulty is that legalstudies of comparative constitutionalism lack methodological rigourbecause they have failed to deploy the social scientific research methodsof controlled comparison, research design, and case selection that arenecessary to draw causal inferences. By contrast, HirschI argues, scholars ofcomparative politics have successfully used a variety of case selectionmethodologies to explain the political origins and consequences of therecent spread ofwritten constitutions and bills ofrights. HirschI concludesby suggesting that inference-oriented principles of case selection maylikewise help scholars to explain why, when and how the migration ofconstitutional ideas occurs.

Mark Tushnet (Some reflections on method in comparative constitutional law) provides a striking contrast to HirschI. Whereas HirschIargues that legal studies of comparative constitutionalism have beenmethodologically deficient, Tushnet defends the existing literature andthe methods it has employed, and situates the academic study ofcomparative constitutional law firmly within the mainstream of legalscholarship. Tushnet observes that the academic study of comparativeconstitutional law has not been methodologically innovative because ithas relied on a series of well-established methods used in the study ofcomparative law. Tushnet suggests that despite its lack of methodologicaloriginality, the existing literature has nonetheless yielded intellectualdividends. There are three principal comparative law methodologies:normative universalism, functionalism, and contextualism. He theninstructively distinguishes simple contextualism from expressivism.Tushnet provides a conceptual map of these methodologies with concreteillustrations from the academic literature on comparative constitutional


law. For each example, he explains what useful insights these studies haverevealed. Rather than arguing for the superiority of one methodologyover another, he suggests that each approach has its benefits andlimitations.

If Tushnet's chapter provides a taxonomy of the distinctively legalapproaches to comparative constitutional law found in the academicliterature, Lorraine Weinrib (The postwar paradigm and Americanexceptionalism) also works from within a legal perspective, but proceedsfrom the practice of courts. Her target, however, is Americanexceptionalism - i.e., the refusal of many us courts and justices toengage in comparative analysis. American exceptionalism flows from thepremise that constitutional judicial review is undemocratic andillegitimate, and views the migration of constitutional ideas as a formof judicial activism that further undermines the legitimacy of judicialreview. Weinrib contrasts American exceptionalism with the 'postwarjuridical paradigm' of rights protection, a common constitutional modelshe 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 andcomparative constitutional analysis as a natural by-product of the sharedconstitutional template that transcends jurisdictional boundaries. Inother words, Weinrib provides an empirical account to back up Allan'snarrative of constitutional convergence. While the dominant view is thatthe postwar model is totally foreign to the US experience, Weinrib arguesthat the rights-based conception has a pedigree in the decisions of theWarren Court, which themselves influenced constitutional courts inother countries. Recent debates over reference to comparative materialshave been unnecessarily acrimonious as a result of the view that there aretwo competing conceptions of constitutionalism, only one with roots inUS legal and political experience.

Part II: Convergence toward a liberal democratic model?

Lorraine Weinrib has offered a powerful model of comparativeconstitutional law that makes three controversial claims. First, themigration of constitutional ideas through judicial borrowings hasfacilitated the emergence of a common constitutional model forconstitutions in a variety of jurisdictions. Second, the adoption of the

=

28 SUJIT CHOUDHRY

post-Second World War constitutional model has precipitated theconvergence of constitutional analysis across both common law and ci~

law jurisdictions. Third, this emerging constitutional conversation hasnot, for the most part, involved the United States. The chapters in thissection engage with each of these points.

Jeff Goldsworthy (Questioning the migration of constitutional ideas:rights, constitutionalism and the limits of convergence) challengesWeinrib's descriptive and normative accounts of constitutional cOllvergence. He asks two questions: whether convergence toward a commonconstitutional model is a good thing, and whether judicial interpretationshould serve as a vehicle for convergence. Goldsworthy answers bothquestions in the negative. Pointing to the diversity of institutionalarrangements surrounding judicial review in England, New Zealand, andCanada, Goldsworthy suggests that significant variations continue todistinguish different liberal democratic constitutions. He also suggests thatdiversity and experimentation in constitutional design enable adaptation todiffering political and cultural circumstances. Finally, Goldsworthy arguesagainst convergence through constitutional interpretation. He asserts thatsuch an interpretive stance fails to take seriously the constraints that textimposes on the legitimate role of the courts in elaborating constitutionalmeaning.

Michel Rosenfeld and Andras SajD (Spreading liberal constitutional--f. ism: an inquiry into the fate of free speech rights in new democracies)

also argue against the existence of convergence, focusing on the case offree speech in Hungary. Free speech makes for an interesting case studybecause it is valued by many versions of liberal constitutionalism.Rosenfeld and SajD use the Hungarian case to explore the contribution ofthe transplantation of liberal constitutional norms to the spread andconsolidation ofliberal constitutionalism. They pose a series of questions.Is the importation of such norms sufficient to pave the way to liberalconstitutionalism, or must certain preconditions prevail or becomedeveloped prior to any successful transplantation? Can the importationof liberal constitutional norms have a significant impact notwithstandingthe concurrent importation of non-liberal constitutional norms? Doesthe outcome of transplantation depend more on the nature of the rightsand/or the approach to these imported rights, or more on contextualissues relating to conditions in the importing countries? The Hungari;mcase suggests two conclusions: that the importation of liberal free spe.ech


norms can be linked to the implantation of liberalism to some degree, butalso that historical, cultural, political, and institutional factors play animportant part in determining the viability, scope, and possible depth ofany possible adaptation of imported constitutional norms, which speaksto Whitman's concerns. It also suggests the need to take a longer-termview of the project of liberalism, as the authors argue that apparentlyilliberal influences can be co-opted into the service of liberalism.

Jean-Fran~ois Gaudreault-DesBiens (Underlying principles and themigration of reasoning templates: a trans-systemic reading of the QuebecSecession Reference) addresses the possibility of constitutional convergence across the divide between the common law and civil law worlds,as Weinrib suggests has occurred. He argues that most students ofcomparative constitutionalism have assumed this divide to be aninsurmountable barrier to the migration of constitutional ideas. Inparticular, while it is often supposed that unwritten legal principles canmigrate freely among common law jurisdictions, it is also presumed thatthe centrality of text to legal reasoning in civilian systems makes themimpervious to such arguments. Gaudreault-DesBiens argues, however,that this view is based on a caricature of the civil law tradition. Properlyunderstood. the civil law tradition holds that legal texts are always basedon underlying and unwritten legal principles on which courts may rely tosupplement textual provisions. Indeed, unwritten principles may evenprovide courts a justification for refusing to follow explicit textualprovisions in a given case. He argues, counter-intuitively, that thisinterpretive methodology has in fact migrated from the civil law into thecommon law world of Canadian public law. His principal example is thejudgment of the Supreme Court of Canada in the Quebec SecessionReference, often offered as the leading example of unwritten, common lawconstitutionalism.

Finally, Brenda Cossman (Migrating marriages and comparativeconstitutionalism) takes up the claim that the US constitutional systemis impervious to comparative influence. As a case study, she examines theimpact of the Canadian jurisprudence on same sex marriage in theUnited States. Cossman agrees with Weinrib that the judgments will havelittle or no direct impact on US legal developments because of USexceptionalism. She argues, however, that the denial by US courts of thevalidity of Canadian marriages on US soil constitutes itself a form, albeita thin one, of recognition: ifsame sex marriage is valid in Canada, it is no

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30 SUIIT CHOUDHRY

longer unthinkable in the United States. She suggests, further, that anarrow focus on the migration of constitutional doctrine misses out pnthe important role that cultural representations of foreign constitutionaldevelopments play in US constitutional debates. Cultural representationsof same sex marriages of Americans that have taken place in Canada aresignificant interventions in US constitutional debates around same sexmarriage because they reconstitute the very nature of the gay and lesbiansubject, and the very nature of marriage. Cossman's conclusion is, thatcomparative constitutionalism needs to broaden its methods beyondformal sources of constitutional law to encompass a cultural studiesdimension.

Part III: Comparative constitutional law, internationallaw and transnational governance

Whereas many of the chapters explore the migration of constitutionalideas across national jurisdictions, Mayo Moran and Mattias Kummenter this debate from a different angle. International law (especiallyinternational human rights law) increasingly serves as a source ofconstitutional ideas for domestic legal orders through judicial interpretation. Moran and Kumm accordingly address the question ofconstitutional migration through the lens of traditional models for thereception of international law into domestic law.

Mayo Moran (Inimical to constitutional values: complex migrations ofconstitutional rights) approaches this issue by linking two hithertounconnected debates. The first is the use of international andcomparative law in domestic constitutional adjudication, and the secondis the use ofdomestic constitutional law in private law adjudication. Bothphenomena tend to occur in the same jurisdictions, such as South Africa.Moran suggests that this is not surprising, since both rely on a conceptionof legal sources that rejects the traditional fixation with the presence orabsence of binding sources of law. Constitutional practice points to amore nuanced and complex theory oflegal sources - one where the valuesof international and comparative law exert some kind of mandatory effectupon domestic constitutional law, and where the values of constitutionallaw exert a comparable effect on domestic private law, even wheninternational and constitutional legal rules do not apply directly. Sheterms this effect 'influential authority'.

II MIGRATION IN COMPARATIVE CONSTITUTIONAL LAW 31

Mattias Kumm (Democratic constitutionalism encounters internationallaw: terms of engagement) makes a similar point, albeit by focusing~xclusively on the migration of constitutional ideas from internationallaw. Kumm suggests that debates over the place of 'binding' internationallaw in domestic constitutional adjudication have proceeded, unhelpfully,on an all-or-nothing basis. As an alternative, he suggests a differentiatedapproach within domestic constitutional doctrine directly to engage withthe reasons offered by proponents and opponents of the use ofinternational law in domestic adjudication. These are formal concernsrelating to the idea of international legality, jurisdictional concernsrelating to subsidiarity, procedural concerns relating to participation andaccountability, and substantive concerns relating to individual rights.Different treaties would be treated differently. Moreover, constitutionaldoctrine would shift from rules of conflict to rules of engagement. Kummfinds these elements in the jurisprudence of the European Court ofHuman Rights and the European Court of Justice. He then appliesthis framework to suggest that UN Security Council anti-terrorismresolutions do not have a strong claim to be applied in domesticcourts, because of procedural concerns regarding UN Security Councildecision-making.

Moran and Kumm assess the legitimacy of importing constitutionalideas from international law from within the standpoint of domesticconstitutional law. David Schneiderman and Neil Walker address aslightly different question of legitimacy, asking whether the conceptuallens of constitutionalism has migrated and should migrate to theinternational legal realm to serve as a normative standard fortransnational governance. Schneiderman (Constitution or model treaty?Struggling over the interpretive authority of NAFfA) explores this issuein the context of the North American Free Trade Agreement (NAFTA),where the very idea of referring to NAFTA as a constitution has been asource of political controversy. Commentators writing in the vein ofpolitical economy have invoked the language of constitutionalismbecause NAFTA's protections for investors replicate and expand uponprotections for property rights typically found in domestic constitutions.International lawyers have resisted the application of a constitutionalframework of analysis to NAFfA, emphasizing NAFTA's continuity withexisting international treaties. Schneiderman argues that the language ofconstitutionalism should migrate to NAFTA, because it provides a

32 SUJIT CHOUDHRY

normative framework through which to assess the legitimacy ofrestrictions that NAFTA imposes on democratic decision-making.

Neil Walker (The migration of constitutional ideas and the migration oftheconstitutional idea: the case ofthe EU), by contrast, suggests that the useof the language of constitutionalism at the transnational level in theEuropean Union (EU) raises problems of legitimacy, instead of resolvingthem. At the domestic level, Walker suggests that the migration ofconstitutional ideas has been challenged on the grounds of democraticlegitimacy and cultural specificity. He argues that in the EU context; thechallenge of democratic legitimacy, although on its face a challenge evenmore profound than in the national context, is on reflection still significantbut not decisive against the legitimacy of constitutional migration. But healso argues that the question of the specificity of the EU legal culture,though superficially less of a problem than in the traditional intra-statecontext because it owes its legal pedigree to national systems, actuallypresents a more fundamental and resilient set of problems whoseresolution remains a matter of deep and long-term uncertainty. Themigration of constitutional ideas to the EU carries with it the migration ofthe constitutional idea to the ED as a fully constitutional polity. This wouldchallenge the view that the EU is a partial and relational supranationalpolity.

Part N: Comparative constitutional law inaction - constitutionalism post 9/11

The final set of chapters examines the migration of constitutional ideas inthe wake of 9/11, as a lens through which to explore the themesdeveloped in the earlier chapters. Constitutionalism post 9/11 raises acutedilemmas for liberal democratic constitutions. The challenge posed bymass terrorism arguably threatens the survival of liberal democraticconstitutional orders. Legal responses to terrorism accordingly can beviewed as acts of constitutional protection and preservation. But thosevery same responses often put considerable strain on the rule of law. Theproblem is that compliance with the rule of law may impede theeffectiveness of responses to terror, arguably jeopardizing the veryexistence of the constitutional order itself. This shared dilemma hasfuelled the migration of constitutional ideas, as jurisdictions search forthe right balance between the promotion of security and respect for


legalism. Accordingly, 9/11 has forced the development and elaborationof Weinrib's shared constitutional model in the context of the 'war onterrorism'. It illustrates how this shared model is developing, quiteliterally, through comparative conversation, and is therefore a test-casefor her empirical claims of constitutional convergence. Constitutionalismpost 9/11 is worth examining closely for another reason. As Kim LaneScheppele and Kent Roach demonstrate, post 9/11, the constitutionalideas which have migrated are often actually anti-constitutional ideas.And so, whereas the migration of constitutional ideas has typically beenassociated with enhanced respect for human rights and the rule of law,post 9/11 it has arguably resulted in their dilution. Constitutionalismpost 9/11 therefore raises the question of whether constitutionalconvergence is an unqualified good - with strong suggestions from thisvolume for the persuasiveness of negative responses.

Kim Lane Scheppele (The migration of anti-constitutional ideas: thepost-9/ll globalization of public law and the international state ofemergency) opens this section by exploring the tension between therequirements of international law and domestic constitutional law in thewar on terror. Typically, international law is viewed as a source ofconstitutional ideas to enhance domestic constitutional protections, as isthe case with the law of international human rights. But Scheppele arguesthat in the war on terror, international law has been a source of anticonstitutional ideas. In particular, UN Security Resolution 1373 obligedmember states to criminalize terrorism, without defining it or requiringthat states comply with human rights norms. This gap has been filled bythe enforcement practices of the Security Council's Counter-TerrorismCommittee, which has pushed states to adopt measures raising seriousquestions about the repression of political dissent, the arbitrariness ofexecutive power, and the bypassing of judicial determinations of fact thathave become characteristic of terrorism prosecutions around the world.Scheppele also argues that one should not mistake convergence forconstitutional borrowing in the traditional, horizontal sense of one stateborrowing from an equal other, since the adoption of common legalframeworks in her case study has resulted from international pressureexerted vertically by the Counter-Terrorism Committee of the UNSecurity Council.

In contrast, Kent Roach (The post-9/11 migration of Britain'sTerrorism Act 2000) argues that the migration of constitutional ideas

34 SUIIT CHOUDHRY

in the anti-terrorism field has been marked by the surprising resilience ofnational jurisdictions against anti-constitutional ideas from other jurisdictions. Roach's principal focus is the impact of the United Kingdom'sTerrorism Act 2000 on the drafting of anti-terrorism legislation in theformer colonies ofAustralia, Canada, Hong Kong, Indonesia, South Africa,and the United States. The Act's definition ofterrorism reflects one view ofthe correct balance between anti-terrorism policies and the constitutionalvalue of free speech. Roach's argument is that precisely because of theUnited Kingdom's status as a former colonial power, the constitutionalideas contained in the British statute had a much greater impact on thesejurisdictions than corresponding US legislation. But the constitutionalpolitics of each jurisdiction had the effect of significantly narrowing thescope of the definition of terrorism. The lesson is that even in the antiterrorism context, domestic law, politics, and history collaborate to ensurethat the migration of constitutional ideas does not necessarily produceconvergence.

The final chapter is from Oren Gross ('Control systems' and themigration of anomalies), who explores the history of 'control systems',whereby imperial powers such as the United Kingdom and Franceapplied an emergency regime to a dependent territory, while purportingto maintain a state of legal normalcy in the controlling territory itself.The hope is that the situation of legal exception would not migrate acrossterritorial boundaries and contaminate the normal legal order in thecontrolling territory. However, history has taught us that emergencymechanisms have had a tendency to migrate across territorial boundaries.For example, the curtailment of the right to silence in Northern Irelandeventually found its way into ordinary criminal legislation, and the use oftorture in Algeria by French forces made its way into France. And so thestern lesson for constitutionalism post 9/11 is the inability to restrain themigration of constitutional (or anti-constitutional) ideas across territorial boundaries within a single control system - a cautionary tale for theUnited States, in light of the interrogation techniques it has employed inGuantanamo Bay and Iraq.

Conclusion

Roger Alford has recently written that 'there is a remarkable absence ofany serious attempt to square' the migration of constitutional ideas with


constitutional theory.114 Our discipline is out of step with thephenomenology of a rapidly developing constitutional practice, and soha,s lost its ability to describe and make sense of a shift in the culture ofconstitutional argument. The goal of this volume is to tackle that task.

What is distinctive is how we address this challenge. Alford proceedsfrom established theories of constitutional interpretation in the USconstitutional order, and attempts fit the increasing comparative engagement by the US Supreme Court within those theories. This is a top-downapproach which takes existing ways of thinking about constitutionalpractice as a given. Bycontrast, we begin from the bottom up. The task oftheconstitutional theorist is to identify the reasons offered by courts and otherlegal actors for the recourse to comparative materials, and to weave thosejustifications into coherent accounts. Constitutional theories emerge fromandseek to justifyour interpretive practice. By working from the ground upthrough case studies drawn from a broad variety of jurisdictions, thisvolume is a preliminary step in recasting the conceptual apparatus ofcomparative constitutional law. And so the next step is for scholars to buildupon this work, and further to enrich both our accounts ofthe migration ofconstitutional ideas and the theories we develop to explain and justify it.

!l4 R. Alford, In Search of a Theory for Constitutional Comparativism (2005) 52 UCLA LawReview 639 at 641. Also see R. Alford. Roper v. Simmons and Our Constitution inInternational Equipoise (2005) 53 UCLA Lllw Review 1.

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