The Relevance of Comparative
Constitutional Law to
Undergraduate Education in Constitutional History
Mark Tushnet
My presentation is doubly awkward,
because I teach constitutional law in a law school and am unfamiliar
with the constraints placed on teaching constitutional history to
undergraduates, and because my topic here is comparative constitutional
law. Yet perhaps I can defend myself by invoking the opening line of the
novel The Go-Between: "The past is another country; they do
things differently there." Just as understanding history can inform
contemporary discussions, so can understanding constitutional experience
in other countries, and for roughly the same reasons. I begin by
describing some general benefits of comparative study, which are also
benefits of historical study, and then turn to some observations about
some selected examples of comparative constitutional law that might
profitably be mentioned in constitutional history courses. (In saying
mentioned, I mean to signal my awareness that time and other
constraints are likely to make it difficult for anyone to devote
substantial attention to these examples in a semester-long class.)
The standard reasons for asserting that
comparative legal studies are valuable include the following. First,
comparative study is said to give students some distance on the
practices with which they are familiar. In a strong version, the
argument is that comparative study can induce in students a sense of
false necessity. That is, students come into the class thinking that the
constitutional arrangements with which they are familiar are necessary -
for example, necessary to have a well-functioning democratic system.
They then see that other apparently well-functioning democratic systems
are organized quite differently.
As this formulation suggests, teaching
comparative material with the idea of false necessity in mind pushes in
a functionalist direction. Students and teachers both are likely to
think that legal institutions here and there perform certain functions,
and the fact that we try to accomplish some particular goal through the
institutions we have does not mean that that is the only way to
accomplish it. So, for example, the United States does not let
legislators bring constitutional challenges because of the way in which
the Supreme Court has interpreted Article III's "case or controversy"
requirement, but legislator standing is available in Germany and
elsewhere. The United States and Germany, that is, simply have chosen
different ways of structuring the process of judicial review to ensure,
as best the system-designers can, that government actions conform to
fundamental law.
There is an obvious danger here,
analogous to dangers that historians are familiar with under the heading
Whig history. For Whiggish historians, what has gone before is
only a preparation for what we now have. They note that people in the
past did things differently from the way we do them now, and conclude
that history is a process of learning what was good and what was bad,
then discarding the bad and preserving the good. The analogue in
comparative legal studies is ethnocentrism, in which the student notes
that arrangements are different elsewhere and concludes that the reason
lies in the backwardness of the people there. This is confirmed, for the
ethnocentric student, by such things as the development of international
human rights law and the adoption of a watered down Bill of Rights in
Great Britain (watered down, because the recently adopted Human Rights
Act does not authorize judges to overturn parliamentary legislation).
These developments show that backwardness is being eliminated as people
elsewhere move toward the point that the enlightened United States has
already reached.
Of course teachers can combat
ethnocentrism, just as historians can fight the tendency toward Whig
history. One way is simply to point out how implausible it is to contend
that Canadians, Britons, and the Dutch are all quite so backward.
Another is to describe people elsewhere as different, without
suggesting that difference entails backwardness. Their choices may be
appropriate, given their nation's characteristics and history, but might
not be appropriate for us.
This moves us toward a second general
idea about the value of comparative study. The idea of false necessity
suggests that we might erroneously think that the arrangements we have
are functionally necessary. But, reflecting on experience elsewhere, we
might end up thinking that they are true necessities, albeit not in a
strictly functional sense. Comparative constitutional law shows that
they are not universal requirements of all well-functioning democratic
systems, but it may remain true that they are necessities for us,
given who we are and what our history has been. Put more generally, this
value of comparative study is that, like historical study, it can help
students understand legal principles in their context, here comparative
rather than historical.
I conclude these comments on the value of
comparative study with an observation about pedagogy. My experience is
that students, at least law students, find the argument about false
necessity much easier to grasp than the argument about contextualizing.
Perhaps they do so because they are more committed to functionalist ways
of thinking about law than to the contextualist's idea that law
expresses something about the society in which it is embedded. Perhaps,
however, it is that law students are different from undergraduate
students, with a more focused need to fund something of immediate use in
their studies. Or, perhaps, it is because I myself am drawn to
functionalist ways of thinking even though I try to present the
contextualist idea in class with equal vigor.
With this as background, let me offer two
examples that try to integrate comparative constitutional study with
historical study in ways that might illuminate undergraduate teaching in
constitutional history. The first deals with regime changes, the second
with social welfare rights.
Bruce Ackerman has recently made a major
topic of discussion among U.S. constitutional scholars the theme that
the U.S. constitutional regime has undergone several major
transformations. I am not committed to his idea that these regime
transformations occur in narrow constitutional moments, an idea that I
believe is rooted in his specifically legal concerns. Nonetheless, his
idea that regime transformation is important seems to me entirely
correct. Ackerman identifies three constitutional regimes: the first was
created at the Founding, the second during Reconstruction, and the third
during the New Deal.
A historian might point out that regime
transformations were occurring around the world at roughly the same
time. A classic work, for example, is R.R. Palmer's Age of Democratic
Revolutions, which situates the first constitutional regime in an
international framework. Perhaps a historian might connect the regime
transformation of Reconstruction to the revolutions of 1848,
particularly if we think of transformations occurring not in discrete
moments but in the course of a generation. Pursuing the connection
between the 1848 revolutions and Reconstruction, a historian might
suggest that both were largely failures in the short run, but both had
substantial effects on the ideology of democratic governance with deep
effects in the long run.
International comparisons may illuminate
the New Deal regime transformation as well. Undergraduates studying the
New Deal constitutional revolution may profit from knowing that similar
constitutional crises occurred in many other countries. In Australia and
Canada the economic conditions of the Depression elicited governmental
innovations quite similar to the ones used in the New Deal, and drew
quite similar resistance by those nations' high courts. The
constitutional crises in Argentina and Weimar Germany had, of course,
rather different outcomes.
Finally, one might draw all this together
with a single theme, of the unsurprising type that often helps organize
lectures: There have been regime transitions, both in the United States
and elsewhere, and they are generally connected closely to severe
economic or social crises. For, after all, such crises may lead people
to conclude that the existing constitutional order has failed in its
central task, which is precisely to prevent crisis.
My second example of an area where
comparative constitutional study may enhance the study of U.S.
constitutional history is welfare rights. United States constitutional
law is of course hostile to the idea that social welfare rights have
constitutional status, although they are an important component of the
modern welfare state. The contrast with other modern welfare states is
quite dramatic. Nearly every modern constitution contains guarantees of
social welfare rights. The German Basic Law, for example, says at its
very outset that Germany is a "rule of law" state and a social
welfare state.
The false necessity idea can be used here
as well. United States students may think that denying constitutional
status to social welfare rights is a functional necessity in the modern
world, where economic conditions change so rapidly that constitutional
commitments to social welfare rights could not possibly be honored, and
certainly could not be enforced by courts.
Here I would make a modest observation,
that there is no necessary connection between having a constitution,
even a written constitution, and having judicial review. One could,
then, constitutionalize social welfare rights, making them an important
national commitment, without worrying about whether they were judicially
enforceable. This is what the Irish and Indian Constitutions do, in
sections labeled "Directive Principles of Social Policy," which are
expressly made unenforceable in the courts. Other nations' courts, such
as the Italian constitutional court, do enforce the social welfare
provisions of their constitutions, albeit with a great deal of deference
given to legislative choices.
The more important point about social
welfare rights is one that historians can help students with. In
presenting the U.S. position on social welfare rights to students, I
tell a story that is almost entirely historical. The modern social
welfare state originated in a confluence of several forces: the rise of
socialist parties in Germany and Europe more generally in the late 19th
century; Otto von Bismarck's conservative strategy of responding to
socialist challenges by creating social welfare provisions; the Roman
Catholic Church's related response in the development of its social
teachings, particularly in the encyclical Rerum Novarum,
reiterated forty years later during the Depression; and the continuing
power of social parties in Europe during the constitutional
reconstructions that occurred after 1945.
If this story is right, even in broad
outlines, the subject of social welfare rights might be particularly
interesting to constitutional historians, because it connects an
interpretation of the status of welfare rights in U.S. constitutional
law to one of the enduring themes in the historiography of the United
States, the theme of American exceptionalism.
To conclude, I should make it clear that
I do not offer these examples as settled truths about how the
undergraduate study of constitutional history might incorporate
comparative material. Rather, I use them to suggest that students might
get something out of at least a bit of exposure to comparative material.
And, in the end, I am not sure that we can ask for much more from
anything that we think could be included in the curriculum.
Note: The themes sketched here are
developed in more detail in Mark Tushnet, "The Possibilities of
Comparative Constitutional Law," Yale Law Journal (April 1999), and in
Vicki C. Jackson and Mark Tushnet, Comparative Constitutional Law
(Foundation Press, 1999).
Mark Tushnet
Carmack Waterhouse Professor of Constitutional Law
Georgetown University Law Center