It has now become the conventional wisdom that many justices on the United States Supreme Court are thinking about the relevance of comparative constitutional law to the interpretation of the United States Constitution. An emerging conservative critique of doing so questions the democratic legitimacy of the practice. I believe that those questions are badly formed, but that other questions are worth raising about the (perhaps) emerging practice. In this comment I identify some reasons for caution about the use of transnational comparative law in interpreting domestic constitutions. Some reasons are institutional, others arise from the doctrinal context within which particular constitutional controversies arise. I emphasize at the start that I am offering some cautionary notes, not knock-down arguments against the use of transnational comparisons in domestic constitutional interpretation. Such comparisons can be useful, especially in bringing to mind possibilities that might otherwise be overlooked or thought too utopian to be considered as part of a real-world constitution. Here Justice Brandeis's observation, "If we would guide by the light of reason, we must let our minds be bold," seems relevant. And yet, I will suggest in conclusion, letting our minds be bold might not lead us all to think about transnational constitutional comparisons.
36 Conn. L. Rev. 649-663 (2004)
Scholarly Commons Citation
Tushnet, Mark V., "Interpreting Constitutions Comparatively: Some Cautionary Notes, with Reference to Affirmative Action" (2004). Georgetown Law Faculty Publications and Other Works. 229.