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Article Excerpt
This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional rights resulting in their lesser reach into private conduct. Third, the U.S. Constitution is exclusively a charter of negative rights and so rejects the types of positive constitutional rights, including social and economic rights, that many other modern constitutions recognize.
The thesis of the Article is that while the conventional wisdom is largely correct about American exceptionalism regarding the contemporary content of a few specific rights, it is largely wrong regarding the general structure of constitutional rights. Once labels and assumptions are set aside, I show that on each of the three identified structural issues, far from occupying a relatively extreme and lone position as is generally thought, the U.S. approach is actually well within the contemporary global constitutional mainstream. Debunking the myth of American structural exceptionalism matters for several important and timely reasons. These include undermining one prominent argument against the federal courts using foreign constitutional decisions and also the idea that there are distinctive threshold barriers in the United States against judicial implication of a few social and economic rights.
TABLE OF CONTENTS INTRODUCTION I. SUBSTANTIVE EXCEPTIONALISM A. The Text B. Freedom of Speech and Expression C. Religion D. Guns, Jobs, and Scaffolds E. Constitutional Interpretation II. THE AMERICAN VERSUS THE EUROPEAN MODEL OF JUDICIAL REVIEW III. CONCEPTIONS OF CONSTITUTIONAL RIGHTS AND THEIR LIMITS A. The Weight of Constitutional Rights Claims B. The Methodology of Constitutional Rights Claims 1. General Styles of Reasoning 2. A One-Step or Two-Step Approach? IV. THE STATE ACTION DOCTRINE AND HORIZONTAL EFFECT A. The Comparative Position of the United States B. The Surprising Role of the State Action Doctrine V. NEGATIVE AND POSITIVE CONSTITUTIONAL RIGHTS A. Social and Economic Rights B. Constitutional Rights to Protection CONCLUSION: WHAT'S AT STAKE?
INTRODUCTION
The familiar notion of American exceptionalism (1)--that, in many spheres of activity, the United States does things in a qualitatively different way than other developed countries--is shared by Americans ("only in America") and non-Americans alike. (2) Although there is, perhaps, broad consensus on the list of differences, there is less agreement between internal and external viewpoints on their explanations, and still less on the underlying normative assessment attached to the entire phenomenon. While Americans tend to see these differences as a badge of honor, reflecting the vigor and boldness of the new world versus the old, many non-Americans like to view them, if not quite as a badge of shame, as a badge of immaturity, cultural inferiority, or lack of sophistication.
Depending on one's perspective, the standard list of differences includes economic systems (free market capitalism versus a mixed economy), political traditions (U.S. antigovernmentalism, top elective offices open to those with little or no political experience, and the absence of both a strong socialist movement (3) and a professional, high-level civil service), work ethics and culture, moral and personal values, the contemporary roles of religion and extent of religious belief, attachment to firearms, unique team sports, senses of humor, and forms of self-presentation. The explanations of these differences are, of course, legion and much disputed, but they include the United States' newness, existence and status as the product of the first successful colonial revolution, geography, political isolation and isolationism, a long period of buoyant economic self-sufficiency, and demographics as a heterogeneous and non-organic immigrant society. (4) To a greater or lesser degree, the United States seems to have evolved differently, like a giant Galapagos, or better yet, started out as a political-economic mutation of the species.
There is a parallel view, widespread among both American and comparative legal scholars, that the list of differences also includes constitutional law. (5) Prior to 1945, the United States was unequivocally exceptional in this regard and, by any standard, far more exceptional than it is now. It was then one of the very few countries with a written constitution that (1) included a bill of rights, (2) gave the constitution, including the bill of rights, the status of the supreme law of the land, (3) entrenched it against amendment or repeal by ordinary legislative vote, and (4) enforced it by the power of judicial review. Since 1945, however, the developed world in particular has converged on these constitutional fundamentals to such an extent that countries which continue to reject one or all of them--such as the United Kingdom, the Netherlands, New Zealand, or Australia (6)--are now truly exceptional.
Nonetheless, even within the common framework of these modern constitutional fundamentals, there is still a pervasive sense that the United States remains broadly exceptional or different, even if not as exceptional as before 1945. That is to say, such differences are in some meaningful sense general, systemic, or qualitative in nature and not merely limited to the type of particular, specific, or narrow differences that inevitably exist between the constitutional laws of any two or more countries. There are, if you will, one or more macro-differences that are more than the sum of ordinary, expected micro-differences among constitutional systems. In a word, American constitutional law is still perceived as different from all other constitutional laws. And yet, there is a surprising paucity of scholarship that actually focuses specifically on--sets itself the goal of--identifying, exploring, and evaluating this alleged fact of general American constitutional exceptionalism, (7) as distinct from (1) largely assuming it in passing or as the premise of some other argument or (2) focusing on an individual part of it. (8) So in this Article, I seek to take this more systemic or holistic view and explore whether this sense is an accurate one--whether or to what extent any such differences that exist justify the overall conception of American constitutional law as exceptional in some basic or fundamental sense.
Immediately, however, I must make explicit a limit on the comprehensive nature of my analysis. In what follows, I will focus on that part of constitutional law dealing with the protection of rights, as distinct from the allocation of powers between the various branches and levels of government: federalism and separation of powers. The reason for this limitation of scope is clearly not that these areas hold no interest or importance in themselves, nor that there are no significant similarities or differences between federalism and separation of powers in the United States and in other countries. (9) Apart from space, there are two reasons. First, protection of fundamental or human rights has been the central driving force behind the convergence on constitutional fundamentals since 1945. Because this goal has defined--indeed, created--constitutional law in the modern world, it is here too that claims of exceptionalism must be anchored and explored. Second, this anchoring at least has happened, for it is very widely believed that what primarily distinguishes U.S. constitutional law from all others is its exceptional "rights tradition." (10)
Within this general focus on its constitutional rights jurisprudence, there are two dimensions to the perceived exceptionalism of the United States. The first is the substance or content of constitutional rights: what particular rights exist. The second is the structure of constitutional rights. This structure is the underlying framework--set of concepts, principles, doctrines, and institutions--that applies to, organizes, and characterizes constitutional rights jurisprudence as a whole. I think it is fair to say that there is a substantial body of opinion inside and outside the United States that views its rights tradition as exceptional or highly distinctive in both respects."
As far as the substance of constitutional rights is concerned, the claim of exceptionalism focuses primarily on two well-known features of American constitutional law. First is the text. Its age and many correspondingly anachronistic concerns (state militias, quartering of soldiers) and omissions (gender equality), its brevity, its comparatively few enumerated rights, the vagueness of such central enumerated rights as due process and equal protection, and the absence of any express limits on rights, all stand in marked contrast to such paradigmatic post-1945, rights-protecting constitutions as the Basic Law of the Federal Republic of Germany (1949), Canada's Charter of Fundamental Rights and Freedoms (1982), and South Africa's Final Constitution (1996). Second is the unusually high value attributed to free speech and related rights, and the corresponding lower priority (or outright rejection) of competing rights or values, such as reputation, privacy, the individual and/or collective harm caused by certain types of speech, and access by the electorate to a full range of political views. (12)
Beyond these two major perceived differences concerning the substance of rights, there are a few additional ones. The current constitutional position of religion in the United States creates a virtually unique combination of a high level of separation between church and state (notwithstanding some recent lowering (13)) and a comparatively low level of protection of religious freedom (at least after Employment Division, Department of Human Resources v. Smith (14)). Yet this occurs in such an unofficially non-secular public and political culture that the United States is arguably the only Western country in which an avowed atheist could likely never gain the highest political office and candidates are required to expound on the role of faith in their personal development and lives. Another significant substantive difference is the depth of the anti-Lochner reaction, which has resulted in the near non-protection of most economic rights in the face of government regulation, such as the right to choose an occupation. (15) Finally, there are the twin instruments of death: guns and capital punishment. The U.S. Supreme Court recently affirmed an individual constitutional right to possess firearms for the first time, although the precise scope and limitability of the right remain unclear. (16) The death penalty violates the constitutional rights to life and to be free of cruel and unusual punishment in all other developed countries except Japan. (17)
Straddling the substantive/structural distinction (18) is the increasingly well-known exceptionalism regarding the use of foreign and international materials in domestic constitutional interpretation. In fact, U.S. exceptionalism regarding constitutional interpretation has two other important dimensions: (1) the greater emphasis on historical understandings of the text, particularly on original intent; and (2) the relative rarity and questionable legitimacy of employing a "teleological" or purposive mode of interpretation that is common in many other countries. (19)
As far as the structure of constitutional rights is concerned, the list of claimed exceptionalisms is at least as long and even more fundamental. First is the U.S. adherence to the so-called "American model" of judicial review rather than the "European model." Very briefly, the former is paradigmatically characterized by decentralized, incidental judicial review performed by generalist judges via personalized opinions; the latter by centralized, more abstract judicial review performed by specialist judges via anonymous opinions. (20) Second, the United States has a more categorical conception of constitutional rights as compared to the more flexible, open-ended, and pragmatic conception employed elsewhere. This difference is said to be manifested by the U.S. rejection of the near-universal proportionality test for determining if the government has justified its limitation of a right. (21) Third, the state action doctrine of American constitutional law is said to result in the United States having a much sharper public/private split in the scope of constitutional rights than elsewhere, resulting in a higher wall protecting private autonomy. In the terminology of comparative constitutional law, the United States takes a more "vertical" approach to the reach of constitutional rights into the private sphere and, unlike most other contemporary systems, rejects all forms of "horizontal effect" on private actors. (22) Fourth is the well-known axiom that the U.S. Constitution is exclusively a charter of negative rights, prohibiting the government from doing certain things to its citizens but rejecting the types of positive constitutional rights that require the government to do certain things, which many other modern constitutions recognize. Exhibit number one for this claim is the exceptional absence of social and economic constitutional rights in the United States; exhibit number two is the exceptional absence of a constitutional right to protection from the government. (23)
In a nutshell, the thesis of this Article is that while the perceived wisdom is largely correct about American exceptionalism concerning the substance of constitutional rights, it is largely wrong concerning the structure. While there are currently several clear and sharp differences regarding the former, this is not so regarding the latter. More specifically, my argument is that once labels and assumptions are set aside, the structure of constitutional rights in the United States is far more similar to than different from that of other developed countries--and far more similar than generally understood. In particular, whereas on each of the four identified structural issues the United States is commonly viewed as occupying a relatively extreme and lone position, I aim to demonstrate that its approach to each is in fact well within the contemporary constitutional mainstream.
This partial debunking of the myth of American constitutional exceptionalism has several significant implications worth noting at the outset. (24) For one, it may help to break down the mutual wall of separation arising from the perception of the U.S. system--by Americans and non-Americans alike--as so different in its basic principles and assumptions concerning rights that nothing tangible is to be gained from deeper engagement with the other. More particularly on this score, it undermines the particular argument against use of foreign constitutional materials by U.S. courts that is premised on exceptionalism. For another, recognizing that the United States is not exceptional in the structure of its constitutional rights could well have important substantive effects. As one example, it undercuts the notion that there are formidable and distinctive structural hurdles to adopting a few social and economic constitutional rights.
My project in this Article obviously invokes what Mitchel Lasser has referred to as "the most visible methodological cleavage in contemporary comparative law: the division between the proponents of similarity-oriented, and those of difference-oriented, comparison." (25) As just described, my enterprise here appears to be a similarity-oriented one, but I do not undertake it as a "proponent" of such scholarship or indeed of the sameness/difference debate. My concerns in this Article are primarily first-order ones: misconceptions and inaccuracies about the comparative structure of rights have prevented commonalities from being identified and led to a skewed understanding of important aspects of American and comparative constitutionalism. In addition, because my task is to challenge a descriptive thesis (albeit one with important normative implications), I largely limit myself to descriptive and analytical modes of reasoning: what is the case plus some reconceptualization of structural issues. Accordingly, the methodological approach of this Article is, in Ran Hirschl's terminology, "[c]oncept formation through multiple description." (26) As such, its focus is not on providing causal explanations--or justifications---of either structural similarities or substantive differences, although I briefly discuss possible explanations in the Conclusion. There too, I present a fuller discussion of the practical, theoretical, and methodological implications of my analysis.
The Article proceeds as follows. Part I briefly surveys and confirms the reality of contemporary American exceptionalism concerning the substance of constitutional rights as well as certain methods of constitutional interpretation. Parts II to V challenge the conventional wisdom on each of the four structural claims and, taken together, seek to establish that American exceptionalism in this foundational aspect of its rights tradition is largely a myth. Part II discusses models and forms of judicial review. The heart of the Article lies in Parts III to V. Part III considers conceptions of constitutional rights and their limits; Part IV the issue of state action and horizontal effect; and Part V negative and positive rights. The Conclusion explains why debunking the myth of American structural exceptionalism matters.
I. SUBSTANTIVE EXCEPTIONALISM
Since the thesis of this Article is that the conventional wisdom is largely correct on the substantive exceptionalism of certain contemporary constitutional rights in the United States but largely wrong on the deeper, more enduring matter of its structural exceptionalism, I will naturally be focusing primarily on the latter. Accordingly, in this Part, I present only a brief survey of the substantive and interpretive differences. Many, though not all, are fairly well known, but it will perhaps be a useful exercise to put these differences together in one place, as they are usually discussed piecemeal and individually. (27)
A. The Text
Overall, the U.S. Constitution is exceptional among written constitutions both in its age and its brevity. It is the oldest currently in effect (28) and, if not the shortest (as is sometimes erroneously claimed), is among the shortest at 7591 words including amendments, especially if the frame is limited to Western constitutions. (29)
Specifically in terms of constitutional rights, the U.S. Constitution is exceptional in how few enumerated rights it contains, especially of a substantive rather than a procedural nature. (30) In addition to the few scattered rights in the main body of the original Constitution, (31) the Bill of Rights enumerates only the substantive rights of free speech, free exercise of religion, and the right to be compensated for the taking of private property for public use--apart from the antiquated concerns of eighteenth century warfare seemingly dealt with in the Second and Third Amendments. Post-Bill of Rights, the Thirteenth Amendment ended the inhuman treatment of one group of Americans by another, (32) and four of the remaining amendments deal with the right to vote. (33)
These sparsely worded but relatively specific enumerated substantive rights are, of course, supplemented by several critical, but by comparative standards exceptionally vague, ones. In particular, the three Delphic phrases of the second sentence of Section 1 of the Fourteenth Amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (34)
Almost all other constitutions contain longer lists of more particular liberties (35) and an equality provision setting out prohibited bases of discrimination. (36) The age, terseness, and vagueness of enumerated rights have, controversially, resulted in significant implication of rights by the U.S. Supreme Court in modern times. (37)
Finally, it is not only rights that have been implied in the United States, but also limits on rights. This is because, as another example of its textual exceptionalism, the U.S. Constitution lacks any express limits on the rights that it contains. Almost all other constitutions contain such express limits, either in the form of a general limitations clause applying to all rights or specific limitations clauses applying to particular rights. (38) This lack of express limits has not, contrary to well-known textualist arguments, resulted in rights being deemed absolute but rather in the judicial implication of limits. As I will argue in Part III, this perceived need to imply limits in the absence of express ones plays an important role in explaining certain relatively superficial differences between the United States and other countries on the structural issues of the conception of constitutional rights and the methodology of rights analysis.
B. Freedom of Speech and Expression
Although within the United States it is well known that Justice Hugo Black failed to establish an absolute understanding of the First Amendment right to free speech--that no law abridging the freedom of speech means no law (39)--this knowledge is largely lost on outsiders, who find it hard to see the difference. For one of the paradigmatic contemporary exceptionalisms of American constitutional law is the higher value placed on free speech and the lower value placed on conflicting rights, values, and interests than anywhere else. The U.S. Supreme Court has never officially pronounced a hierarchy of rights and values, unlike the German and South African constitutional courts (which place human dignity at the top), (40) but its jurisprudence leaves little doubt about the unofficial one. Across the broad range of substantive free speech issues, the United States takes an exceptional position in favor of unregulated and unregulable speech.
Rather than chart this entire range, I will briefly review some of its most prominent and visible peaks. (41) Whereas most Western countries permit some significant form of "hate speech" regulation, including laws making it a criminal offence to deny the Holocaust or to incite racial or religious hatred, (42) almost all such laws run afoul of the First Amendment as impermissible content-based regulation. (43) Under existing doctrine, only speech that is directed at inciting or producing imminent lawlessness may be regulated. (44) Avoiding the individual, social, psychological, and cultural harms that hate speech undeniably causes is either not seen as a compelling public interest that can in principle justify speech restrictions, or such restrictions are deemed an unnecessary means of promoting this goal. (45)
Similarly, the United States is exceptional in the extent to which it protects defamatory speech. Under the rule of New York Times v. Sullivan and its subsequent extensions, laws imposing liability on those who defame government officials or other public figures are constitutionally permissible only when such speech is made with "actual malice"--that is, knowledge that the statement is false or reckless disregard of its truth or falsity. (46) This rule has expressly been considered and rejected under both the Canadian Charter (47) and Australian Constitution (48) as insufficiently protecting the conflicting values of reputation and dignity, a position mirrored in most other countries, including Germany. (49)
Somewhat ironically, given New York Times's rationale of ensuring "that debate on public issues should be uninhibited, robust, and wide-open," (50) the combined real-world effects of the First Amendment on the regulation of the mass media and of political campaign expenditures are to ensure that this debate is largely conducted about and among the various multi-millionaires or hugely successful fundraisers running for highest public office. Thus, on the one hand, the exceptional understanding of the right to free speech as permitting at most only very limited regulation of broadcasting companies (51) means that the common ban elsewhere on paid political advertisements in favor of free, mandated airtime for electoral candidates (52) would be unconstitutional in the United States. As a direct result, only those with the wherewithal to pay for such ads are plausible candidates. On the other hand, the exceptional inability to limit campaign expenditures because it violates the First Amendment (53) ensures that each election season sees ever-higher economic barriers to entry for public office. Elsewhere, this skewing of democratic elections by the exigencies and dangers of fundraising is commonly rejected in favor of a conception of free speech that requires access by the citizenry to the full range of political views. As a result, both broadcasting regulation and limits on campaign expenditures are either constitutionally permissible or mandatory. (54)
The final free speech exceptionalism I will mention, although there are several others, is that in the conflict between the freedom of the press to report on criminal proceedings on the one hand, and both the right of the accused to a fair trial and the privacy interests of crime victims on the other, the United States stands alone in the degree to which it favors the former. (55) Indeed, this exemplifies the more general difference that the constitutional presumption against prior restraint on publication is exceptionally strong in the United States. (56)
C. Religion
To many, the United States is "a riddle wrapped in a mystery inside an enigma" on the topic of religion in public life. It has by far the largest percentage of believers and active worshippers of any developed country. (57) Despite the constitutional ban on religious tests for public office, (58) it undoubtedly has one de facto given that, among Western countries, only in the United States must political leaders go through the public ritual of confessing their religious faith and would a professed atheist be politically disqualified from office. And this in a country that, apart from funds raised or made, otherwise and exceptionally has no particular qualifications or experience as prerequisites for high political office. Yet despite, or perhaps because of, these political and cultural facts, the constitutional position of religion in the United States is exceptional for the low level of protection it is currently afforded.
Thus on the one hand, the Establishment Clause (59) has generally been interpreted to prohibit state support for (or connection to) either religion in general or particular religions, placing it close to the secular pole on a spectrum of actual or possible positions, perhaps third only to the well-known, affirmatively secularist regimes of France and Turkey. And on the other hand, after the changed position or clarification in Employment Division v.
Smith, the freedom to act on one's religious convictions is arguably less protected in the United States than in most other Western countries, including France and Turkey as member states of the European Convention on Human Rights ("ECHR").
Several constitutional rights regimes, including the Canadian and the ECHR, have no equivalent provision to the Establishment Clause at all and contain only a right to free exercise of religion. Indeed, twelve out of the forty-seven current member states of the ECHR, including the United Kingdom, Norway, and Greece, have officially established religions. (60) Many other Western countries do have constitutional bans on established religions, but still clearly permit even-handed support for religion as a whole, and in some cases special privileges. For example, Article 137(6) of the German Constitution grants certain religious bodies the right to levy taxes on their members that are collected by state governments. (61) And apart from the United States, France, and Turkey, almost all Western countries permit or require some form of religious education in public schools.
On free exercise, the current U.S. constitutional position is that only state action targeting religious practice is subject to strict scrutiny, while the many more general laws that incidentally burden religious practice are subject to ordinary rational basis review. (62) Accordingly, no accommodation of religious practice is constitutionally required, and the state's duty is essentially one of neutrality of intent. Few other countries draw such a distinction between purpose and effect in their constitutional treatment of religious freedom. In defining the scope of the freedom, they tend to focus on the motivations of the individual (is this religiously motivated conduct?) rather than on the motivations of the government in regulating. As a result, special protection is commonly afforded the freedom to act on one's religious convictions, and exceptions from general laws that burden such actions are often constitutionally mandated under the proportionality test, which is more stringent than the U.S. rational basis test used for incidental burdens. (63) Thus, for example, while certain types of post-9/11 regulations around the world, which "target" either Muslim clothing or the wearing of religious symbols more generally, may still be subject to at least as high a presumption of unconstitutionality in the United States as elsewhere, this is not true of many other types of general regulations burdening religion--including those at issue in Employment Division v. Smith (a general drug law) and City of Boerne v. Flores (64) (a zoning ordinance).
D. Guns, Jobs, and Scaffolds
Three final areas of U.S. substantive exceptionalism are the rights to choose an occupation, to own a gun, and not to be subject to cruel and unusual punishment.
Ever since the demise of the Lochner era, the U.S. Supreme Court has lumped all forms of social and economic regulation together for the purpose of determining whether it interferes with the liberty protected by the Due Process Clauses of the Fifth and Fourteenth Amendments and uniformly applied its lowest standard of scrutiny. The result is that no such regulation has been held unconstitutional since 1936. Indeed, many have wondered whether it is even correct to say there are constitutional rights at stake in this area. (65)
Several of the canonic American cases involved what would typically be thought of in other Western constitutional systems as the independent constitutional right to choose an occupation. Thus, The Slaughter-House Cases upheld a state law conferring a monopoly on one slaughterhouse and stockyard facility and requiring all competitors to cease doing business, (66) and Ferguson v. Skrupa upheld a state law prohibiting all but lawyers from engaging in the business of debt adjusting. (67) As epitomized by Ferguson, the modern approach is that the ousted loan makers have no substantial constitutional right claim and that the state's economic regulation is entitled to the high level of deference embedded in the ordinary rational basis test.
By contrast, in many other Western countries, such a claim would fall under the independent constitutional right to choose an occupation, a more significant right than in the United States. (68) Although far from absolute, this right is nonetheless protected more rigorously under the standard test of proportionality than in the United States and has, on occasion, resulted in a finding of unconstitutionality. (69) This right to choose an occupation in the first place--concerning the ability of the government to restrict entry into a trade or profession--is to be distinguished from the generally lesser right to practice an ongoing occupation as one sees fit, free of regulation. (70) Even this lesser economic right is, however, arguably still more protected elsewhere under the "minimal impairment" prong of the proportionality test than it is in the United States. (71)
The U.S. Supreme Court finally ruled for the first time on what had been the open question of whether there is an individual constitutional right to bear arms, (72) an issue that arouses great passion and controversy. This latter point is sufficient by itself to distinguish the United States from other Western countries, where gun ownership is comparatively rare and tends not to be a subject that triggers--excuse the pun--the emotions. In the end, although the Supreme Court has undoubtedly increased the difference by finding that there is an individual constitutional right to possess a firearm, much is still uncertain because it was vague on the scope of the right and chose not to address the important issue of what standard of scrutiny applies to government limitations of the right. (73)
Finally, there is the well-known exceptionalism surrounding the death penalty. (74) Among other Western industrialized countries today, only Japan permits and carries out the death penalty. Most constitutions either expressly prohibit the death penalty or contain provisions banning inhumane and degrading punishment, which have been interpreted to include the death penalty in all circumstances. (75)
E. Constitutional Interpretation
The final area of undoubted and well-known contemporary American exceptionalism straddles the substance/structure dichotomy: namely, methods of constitutional interpretation. In particular, both a raging legal/political controversy and a cottage academic industry have recently arisen (76) following the first citation by the Supreme Court in a majority opinion of foreign/international constitutional cases, (77) as well as the slightly less unprecedented practice of referring to foreign and international laws. (78) Regardless of its merits or outcome, this controversy is obviously a testament to the fact that such use of foreign constitutional materials is hardly normal or routine in the United States, as it increasingly is elsewhere.
As is well known, the Constitutional Court of South Africa is required by an express constitutional provision to consider the decisions of international courts in interpreting its own constitution and is permitted to consider those of foreign courts, which it typically does quite comprehensively. (79) Similarly, the United Kingdom's Human Rights Act of 1998 requires British courts to "take into account" the case law of the European Court of Human Rights ("ECtHR") in interpreting and applying its substantive provisions. (80) The German Federal Constitutional Court ("FCC") has also required courts to take into account decisions of the ECtHR in interpreting the Basic Law. (81) The Supreme Court of Canada routinely canvasses the decisions of foreign constitutional courts, including a usually quite extensive discussion of relevant U.S. jurisprudence--if often only to reject it. (82) So too, although slightly less frequently, does the Indian Supreme Court. (83) To immediately identify the red herring, in none of these countries is the domestic constitutional court bound by foreign decisions; the power--and sometimes the duty--is rather to consider and take them into account for whatever relevance and lessons they may hold.
U.S. interpretive exceptionalism does not, however, begin and end with the use of foreign and international materials as one might infer from the current focus on this issue. It also encompasses both the greater use and importance of history--in particular, original intent and/or understanding--and the lesser use and legitimacy of the "purposive" or "teleological" method of reasoning that is common, and often dominant, elsewhere. Prior to the modern revival of originalism about twenty years ago, the U.S. approach to historical methods of reasoning, summed up in Brown's famous verdict that "[a]t best, they are inconclusive," (84) was more in line with other countries. (85) Since then, however, the rise of originalism in the United States has gone so far that even such an avowed anti-historicist in statutory interpretation as Justice Scalia has on occasion engaged in detailed exegeses of the Federalist Papers in constitutional cases. (86) Textualism and originalism have tended to merge in practice in recent years, with the original meaning of the text coming to predominate over the current. It is obviously a curious fact that constitutional courts elsewhere, when interpreting the provisions of relatively recent constitutions--including some written in the last decade--should generally eschew an interpretive method (i.e., originalism) so heavily relied upon by a court interpreting a 219-year-old document. (87)
The purposive or teleological approach to constitutional interpretation is, roughly speaking, an approach that looks to the present goals, values, aims, and functions that the constitutional text is designed to achieve. Although a version is certainly endorsed by some U.S. judges and commentators in the form of "living constitutionalism," it is neither as widely and overtly employed nor deemed of generally uncontested legitimacy as in many other (although not all) countries. Indeed, in some, including Germany, Canada, South Africa, and Israel, it is not only an orthodox but probably the dominant approach to constitutional interpretation. (88)
Having completed my survey of the ways in which the substance of constitutional rights affirms the reality and extent of American exceptionalism, I now aim to lay bare its mythical elements by turning to the deeper, structural aspects of the U.S. rights tradition.
II. THE AMERICAN VERSUS THE EUROPEAN MODEL OF JUDICIAL REVIEW
As we have seen, the claim of American exceptionalism in constitutional law was self-evident and unanswerable prior to 1945 because, as the inventor of modern constitutional supremacy--a constitution containing a bill of rights that is entrenched, the supreme law of the land, and enforced by the power of judicial review--the United States was one of the very few countries that then practiced it. After 1945, however, when this general system began to be adopted for the first time in western Europe and elsewhere in order to protect fundamental rights, the institutional structure of judicial review put in place departed from that of the United States. Instead, these countries borrowed from the first pre-1945 European prototype: the Austrian Constitutional Court, which had functioned from 1920 until 1938, although it did not have a bill of rights to enforce. (89) By the mid-1980s, when almost all western European countries had made the switch from legislative to constitutional supremacy, including a bill of rights, this Austrian model was so widely copied or adapted that it became known as the "European model" of judicial review. By contrast, the rejected American model seemed exceptional.
And, to a significant extent, so it was at this particular point in time. But three things have occurred since that heyday of the contrast to reduce, if not eliminate, both the relative exceptionalism of the American model and the primacy of the American/European distinction as the most useful or important one concerning the institutionalization of judicial review. First, starting in the early 1980s and continuing into the 1990s, several countries, including Canada, Ghana, and Malawi (the latter two under their new, post-authoritarian constitutions) converted from legislative to constitutional supremacy but, unlike European countries after 1945, adopted the decentralized, American model of judicial review. Second, the "pure" version of the European model came under various sorts of pressures resulting in systemic movements in the direction of the American model. Finally, even more recent developments in certain countries have created an alternative to the now traditional model of constitutional supremacy adopted after 1945, and this alternative model also suggests a new and interesting dichotomy concerning forms of judicial review--strong versus weak--that transcends the older American/European one.
Before briefly describing these three developments, let me pause to summarize the well-known differences between the American and European models of judicial review. (90) The most visible, important, and still sharpest difference is between the decentralization of the American system, in which all courts have the power to disapply legislation that conflicts with the constitution, and the centralization or concentration of the European system, in which only one court (typically called the constitutional court) has this power. (91) Second, in the American system, courts engage only in concrete judicial review, (that is, decide constitutional issues that are part of a litigated case) whereas in the European model, courts also or only engage in abstract judicial review (that is, decide constitutional issues referred to them by a qualified political institution). (92) Third, under the American model, courts engage in a posteriori judicial review, and they do so without a time limit; they consider the constitutionality of a law only after it has come into effect and, moreover, at any time thereafter. Under the European model, some courts engage (only or also) in a priori review, that is prior to the promulgation of the law, and under abstract a posteriori review, there is often a short deadline for seeking review. (93) Fourth, under the American model, with its primarily...
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