Structural Exceptionalism and Comparative Constitutional Law

Note — Volume 96, Issue 8

96 Va. L. Rev. 1965
Download PDF

For over the past two decades, there has been an ongoing debate over whether the Supreme Court should rely on comparative constitutional law when interpreting the U.S. Constitution.This Note offers an exceptionalist critique of the practice. Specifically, it argues that the U.S. Constitution’s exceptional view of the role of the judiciary cautions against this use of comparative constitutional law. The U.S. Constitution is rare among contemporary charters in its reflection of the belief that the judicial branch should be confined to matters of law instead of questions of policy. This separation of law and politics is primarily expressed in the relative absence of institutional safeguards to control the federal judiciary. Whereas architects of foreign constitutions expected some judicial policy-making and consequently built in ex ante and/or ex post controls into their systems, the U.S. Constitution treats the judiciary as a relatively unthreatening institution. This Note contends that when the Supreme Court draws on the constitutional law of these countries without their accompanying safeguards, it risks that the reasoning of foreign judges will operate unconstrained by the checks they took for granted and lead to unintended costs for American society.

Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.

  Volume 96 / Issue 8  

The State Action Principle and Its Critics

By Lillian BeVier and John Harrison
96 Va. L. Rev. 1767

Decentralization and Development

By Richard Schragger
96 Va. L. Rev. 1837

Corporate Capacity for Crime and Politics: Defining Corporate Personhood at the Turn of the Twentieth Century

By Daniel Lipton
96 Va. L. Rev. 1911

Structural Exceptionalism and Comparative Constitutional Law

By Brinton Lucas
96 Va. L. Rev. 1965