Title: Comparative Avenues in Constitutional Law: An Introduction
Abstract: Judicial review once seemed an American specialty. Today, it flourishes around the globe. Over the past two decades, new courts have emerged in many nations, while others have grown to impressive maturity with rich bodies of case law and experience. But it has taken American scholars a long time to get seriously interested in worlds outside our own. Most, but happily not all, of the contributors to this Symposium are American scholars; and in many cases, their work has been strictly about the American Constitution, until quite recently. A few contributors are more seasoned American comparativists. Others are constitutionalists from abroad who are deeply familiar with American constitutionalism. Thus, all of the articles take the American Constitution as one of their reference points; yet none employs American institutions, doctrines, and practices as yardsticks against which to measure other nations. Instead, similarity and difference yield fresh insights and new angles of vision into our world and others. I. Comparative Avenues in Constitutional Law A. Constitutional Structures and Institutional Designs The distinctive yield of comparative scholarship emerges from structural and institutional studies as readily as it does from substantive and doctrinal ones. Both are on offer in this Symposium. John Ferejohn and Pasquale Pasquino's Constitutional Adjudication: Lessons from Europe and Victor Ferreres Comella's The Consequences of Centralizing Constitutional Review in a Special Court: Some Thoughts on Judicial Activism concern the design and operation of courts in Europe and the United States. Formidable knowledge of a great many systems enables these scholars to explore how different systems' distinctive and offsetting liabilities may be linked to the differing institutional details of review. Ferejohn and Pasquino note that the post-1945 European courts have inscribed restraints in systems long hostile to them without politicizing judging in the American fashion.1 European judges engage in almost no public conflicts; they have no ideologically marked public identities (no Justice Scalias or Justice Brennans); and no European politicians run for office promising to appoint certain kinds of judges to the bench.2 While most commentators might explain this contrast in terms of broad cultural differences, Ferejohn and Pasquino suggest that it arises largely from an array of far more concrete and specific institutional differences.3 The rules and terms of judicial appointments, the single court's monopoly on the power of review, the norm of single decisions for the whole court, the absence of oral arguments, and other institutional features, large and small, conduce in Europe to the pursuit of consensual decisions and richer and deeper internal deliberations.4 Acknowledging that this value competes with the rich and fractious external deliberations conducted by the U.S. Supreme Court with the larger polity that contribute to the project of constitutional democracy',5 Ferejohn and Pasquino enable us to see the liabilities of this American virtue and the institutional details that do much to determine the particular and, perhaps, lopsided balance Americans, unselfconsciously, have struck. If Ferejohn and Pasquino use the design of Europe's courts as a diagnostic tool for better understanding features of the American system, Ferreres returns the favor. As befits a European whose American training came from the Yale Law School, Ferreres is attuned to the passive virtues Alexander Bickel extolled, but he suggests that the institutional architecture of European constitutionalism makes the exercise of the passive virtues more difficult.6 European systems, he claims, lean in quite unintended ways toward activism.7 Ferreres argues that because European systems have separate courts that lack discretionary review and have little to do except decide issues, the courts of Europe have a built-in anti-Bickelian bias8 and, as a consequence, may be more fragile. …
Publication Year: 2004
Publication Date: 2004-06-01
Language: en
Type: article
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Cited By Count: 3
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