Sunday, January 16, 2011

American constitutional exceptionalism

Guest Blogger

Miguel Schor

In a recent post David Beatty writes that while the American Constitution is thriving abroad, American constitutional law is not. While I have reservations about Professor Beatty’s claim that our formal Constitution still sets the global standard given the variation we see in how governments are organized around the world, there is little doubt that the United States is increasingly an outlier on the global stage when it comes to judicial output. Professor Beatty characterizes the American approach as a “pluralist” and polarized “conversation between competing cults.”

Constitutional polarization may well be our distinctive contribution to twenty-first century global constitutionalism but the causes for this have less to do with how judges reason than it does with how constitutions mediate conflict. All constitutions that authorize judicial review have to deal with the problem of judicial discretion since reasonable people can and do disagree on the meaning of the open-ended provisions of a constitution.

One could seek to cabin this discretion by policing how judges interpret a constitution. The debate between common law constitutionalism and originalism is, at bottom, a disagreement over how best to constrain judicial discretion.

One could also seek to limit judicial discretion by means of checks and balances. While all constitutions place democratic limits on judicial review, the United States Constitution is exceptionally weak in this regard. The problem of judicial discretion did not loom as large in the constitutional imagination of the framers as it did in the imagination of twentieth century constitution writers who could and did draw on our experience to fashion stronger political limits for national high courts. Judges on European constitutional courts are subject to term limits and are also typically subject to supermajority appointment provisions. Canada, the United Kingdom, and New Zealand have sought to empower legislatures to play a larger role in constitutional interpretation.

These are post-war constitutional developments and it may be that polarization will one day characterize constitutional orders abroad much as it now does in the United States. Nonetheless, it is also quite possible that the sharper tools political actors abroad have at their disposal to contest judicial decisions they disagree with mediate conflict better than the weaker tools available in the United States. Democracies, for example, do a better job of mediating conflict than do dictatorships because there is greater input into policymaking. The same is likely true for constitutional law. Judicial supremacy as we have in the United States weakens the ability of other actors to contest decisions they disagree with. In short, design, time, and accident go a long ways towards explaining why our constitutional order is so exceptionally polarized.

Miguel Schor is Professor of Law, Suffolk University Law School and currently Visiting Professor and Director of the Constitutional Law Center, Drake University School of Law. You can reach him by e-mail at mschor at

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