Balkinization: Comparative Advantage

Comparative Advantage

Guest Blogger

This post was prepared for a roundtable on Comparative Constitutional Design, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Gary Jacobsohn

Twenty-five years ago Sandy contributed an essay to a book I co-edited on citizenship in which he began with a reflection on pedagogy that is recognizably Levinsonian. “Perhaps the most basic lesson of teaching,” he wrote, “is that the learning process can work two ways, and it is not always easy to distinguish the teachers from the taught.” In this particular essay Sandy was addressing the lawyer/citizen problem, namely whether a state—Connecticut was one that had done so—could limit membership to the bar to “loyal Americans,” individuals who were not associated by membership or propagation with “subversive” ideas. The issue had arisen for discussion in a seminar with Eastern European lawyers, a group whose members Sandy thought would benefit from exposure to a liberal academic lawyer’s reflections on the American experience.

It will come as no surprise that Sandy opposed the Connecticut policy, a stance that found him in agreement with the Supreme Court. And true to his pedagogical musings, that he could see his way to understanding why a political test for limiting legal practice was in certain instances justifiable is also not surprising. In an exchange with a Latvian lawyer who defended a citizenship requirement, he was left wondering if “the specific circumstances of Latvia” required a reassessment of her “tribal parochialism,” one that “might have implications even for our own, very different, political situation here in the United States.” This then led to some predictably thoughtful ruminations about small vulnerable societies, settings where cultural preservation might sensibly be seen as taking precedence over liberal universalism.
As they say, so far so good. But then this: “Perhaps I should note that I know almost nothing about the actual system of Latvian law…. To the extent that specific facts matter, I exercise the prerogative of law professors to stipulate them when convenient for my argument.” The candor is surely laudable as a refreshingly uncommon example of academic humility, yet does it not compel one to be skeptical of some of what Sandy had to say in the essay, especially if, like me, you fancy yourself a fact-based scholar of constitutional issues in faraway places? More generally, the question of how much knowledge about a country other than one’s own is sufficient for generating valuable insights about that country’s constitutional order is what I want to address in these remarks.

The safest answer to the epistemological question would follow from the teachings of anthropology, where expressive meanings are only cognizable within a specific interpretive setting, where, as Clifford Geertz pointed out, “the ability to construe…modes of expression” requires deep engagement with the other. The anthropologist’s ethnographic methods have a trans-disciplinary appeal; hence the appearance of an approach to the study of foreign legal systems known as “constitutional ethnography.” As defined by Kim Scheppele, it is “the study of the central legal elements of polities using methods that are capable of recovering the lived detail of the politico-legal landscape.” As she also makes clear, this intense engagement with the details of a given polity does not mean that the knowledge obtained from such an inquiry extends no further than its originating source. After all, an “urgent issue” in comparative constitutional studies is to advance an understanding of one’s own constitutional experience through knowledge of another’s. Or as Alexis de Tocqueville wrote, “It is not…merely to satisfy a curiosity, however legitimate, that I have examined America; my wish has been to find there instruction by which we may ourselves profit.”

Indeed, Tocqueville can help us think through the problem at hand. His visit to the United States clearly checks the box of Geertzian deep engagement with the other, and even if his extended trip did not have as its main focus “the central legal elements” of American society, he probably said enough about public law related matters to qualify as a constitutional ethnographer. [Indeed, Tocqueville wrote at great length about the American Constitution. Anticipating Levinson, he wrote: “It can happen that a minority of the nation, dominating the Senate, entirely paralyzes the will of the majority…which is contrary to the spirit of constitutional governments.”] The knowledge he acquired surely fulfilled the purpose of providing timely and profitable instruction for his countrymen; in the long term no doubt even greater illumination for generations of Americans.

But what exactly was it that Tocqueville knew that was of most value to his readers? Was it the deep immersion in a particular cultural and social milieu that generated his instructive discernments? Was it only that immersion that led him to his most definitive conclusion about American law? “When one wants to speak of the political laws of the United States, it is always with the dogma of the sovereignty of the people that one must begin.” To be sure, generative or not, it would be odd to think of his singular direct exposure as unrelated to the quality of the insights. Still, consider this. Although Tocqueville never visited India, he fully grasped the enormity of its challenges. “India cannot be civilized as long as she conserves her religion and her religion is so intermingled with the structure of its social state, of its customs and of its laws, that one does not know how to destroy it.” His account of a religiously based feudalism was tinged with a dark pessimism, the poignancy of which is underscored by his experience as a direct observer of a feudal order that had been destroyed. He did not imagine a constitutionally grounded deliverance from this sad predicament in a place he knew only from a distance, but a century later the leading Indian constitutional designers invoked the same foundational premise to create a “civilized,” if imperfect, regime.

Which brings me back to Sandy, with whom I have had the privilege of co-teaching a seminar on comparative constitutionalism. In a recent look back at that collaboration, he echoed his Latvia remark of twenty-five years earlier. While claiming to lack “a requisite degree of genuine knowledge that entitles me to make any very confident pronouncements about given foreign constitutional systems,” he proceeded to articulate a strong pedagogical rationale for what he could contribute to the occasion. “My comparative advantage in discussions of world constitutions is to push the conversation toward the United States Constitution.” Setting aside my own clear recollections of pronouncements that seemed extremely well informed by requisite knowledge, there is something very Tocquevillian about this remark, as arguably the Frenchman’s comparative advantage was his capacity for producing trans-nationally derived insights that were germane to the constitutional condition of his home country.

Those reflections, however, were set against a backdrop of philosophical acumen and cross-cultural curiosity, without which the comparative advantage becomes illusory. In Sandy’s case, what he recently opined should be paired with another thought from that essay from twenty-five years ago. “Whether discussing Connecticut, Canada, or Latvia, one must pay close attention to context in determining the relevance of citizenship to such social roles as lawyering.” That sentence was also the essay’s final words; to underscore what is ultimately most valuable to the knowledge question in the study of comparative public law requires only a brief elaboration. A contextual rendering of citizenship, or for that matter Church/State relations, or hate speech (to name just a couple of obvious issues) must take into account the aspirations and commitments that have a connection to the more particular constitutive features of individual polities.

So think again about Latvia, as it exists today, bordered to its east by Russia, to its southeast by Belarus, and in close proximity to Ukraine, with whom it shares a Soviet-era history. Russians in Latvia constitute 25% of its population, more than 50% in Riga, the nation’s capital. Latvian is the only official language, a policy overwhelmingly upheld ten years ago in a constitutional referendum. By contrast, there is no official language in the United States, although some thirty states have designated English to be just that. How should one think about this linguistic conundrum, specifically how might the “comparative advantage” illuminate the question?

Assume that the question called for an assessment of Latvia’s language policy. Tocquevillian comparative advantage methodology begins with a depiction of the aristocratic condition (for example, “The aristocratic constitution influences the ideas and mores of servants scarcely less than those of masters….”), then proceeds with an analysis of how the problem ought to be understood in that other place, where, as in the United States, a contrasting explanatory perspective, the equality of condition, prevails. In Sandy’s case, he might begin with the not uncontroversial supposition that the United States is a multicultural polity, a point he has made against the contrary “one people” claim of John Jay in Federalist #2, and has also made in the essay on the lawyer as citizen. Like Canada, which, it should be said, is officially multicultural, the US is an immigrant society. The familiar melting pot metaphor to the contrary notwithstanding, an alternative assimilative model that clearly favors the official national prioritizing of English is, I presume, anathema to Sandy. So having pushed the conversation in an American direction, what should be said about Latvia?

Again, context is everything. What situational concern would support a decision by the state of Connecticut to adopt English as its official language? Is its cultural identity being threatened by New York and Massachusetts? If constitutionally mandated multiculturalism in Canada requires official national recognition of English and French, does not that same constitutional identity oblige deference to Quebec’s linguistic act of cultural self-preservation? And would not the same logic that Sandy has applied to lawyering apply to the language question? To wit: “Small, vulnerable societies, concerned to preserve (or restore) a particularistic culture against the perceived threat of being overwhelmed by cultural outsiders, might legitimately reach different conclusions from our own about the attributes deemed desirable in those who would practice law.” To be sure, the cosmopolitan logic of liberal constitutionalism offers a strong counter-argument to this particularism; when applied, for example, to the “illiberal constitutionalism” of, say, Hungary it convincingly reaches a different outcome.

But, alas, Latvia is not Hungary. It’s one thing to worry about preserving a cultural identity, quite another to agonize about losing one’s very physical identity. Affirming that identity constitutionally (or at least through ordinary law) is defensible, even if its wisdom is debatable; i.e., why give the Russians another pretext for making your country another Ukraine? And then there’s the additional question—about which I am quite ambivalent—as to how such a policy might affect the enlightenment project of constitutionalism if its justification is predicated on purely pragmatic concerns. Indeed, what Sandy said about the Latvian prohibition of noncitizen lawyers applies here as well, which is that while its underlying rationale may not generate support for the policy, it does not lead unambiguously to a condemnation.

So, to return to the question of how much knowledge about a country other than one’s own is sufficient for earning a respectful hearing about such matters. Law incorporates an aspect that comparative inquiry reveals as ubiquitous, namely a need to convey meaning about features of the legal system that are expressive of a specific homegrown identity, and those attributes that are part of a more or less common stock of aspirations we have come to associate with the generic practice of law. It confronts one with the diversity of national experiences in constitutional governance, but it also makes one aware of general properties that, to varying degrees, serve to mark constitutions as distinguishable entities of a certain type. These become the chapters of the larger story we tell about the law that entails reconciling the particularistic commitments of local traditions and practices with our obligation to pursue a path in the law that brings us to a place that satisfies expectations concerning a universal sense of justice.

Comparativists are wise to include a diverse group of fellow travelers along that path: among the included, the ethnographer deeply immersed in the study of one or two constitutional orders, and the large-N investigator whose limited contextual knowledge should not deflect from the knowledge of larger tendencies in constitutionalism that are attainable through her efforts. But there should be room as well for the philosophically learned individual whose comparative advantage is rooted in his knowledge base meticulously fashioned from an intense engagement with sources within the domestic constitutional environment; who asks, if there are attributes of a constitutional order that are taken to be essential for constitutionalism to exist in more than name only, then would it not be sensible to look beyond resident boundaries to seek validation or disapprobation of prevailing arrangements?

Gary Jacobsohn is Professor of Government and Professor of Law at the University of Texas at Austin. You can contact him at gjacobsohn@austin.utexas.edu.

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