From Mark Tushnet's "The Possibilities of Comparative Constitutional Law," 108 Yale Law Journal 1225 (1999) [footnotes omitted]:
"In 1995, Judge Guido Calabresi referred to constitutional experience in Germany and Italy in concluding a concurring opinion dealing with an equal protection challenge to the disparity between the sentences required for crack and powder cocaine offenders. Citing decisions from those nations' constitutional courts, Judge Calabresi suggested the possibility that U.S. courts might someday hold that the disparity violated the Equal Protection Clause because new information not available to the enacting Congress might demonstrate that the distinction was irrational. Constitutional experience in Germany and Italy was relevant to interpreting the U.S. Constitution, Judge Calabresi argued, because the constitutional systems there were our “‘constitutional offspring,”’ a reference to the fact that they “unmistakably dr[e]w their origin and inspiration from American constitutional theory and practice.”
Reciprocating was appropriate because “[w]ise parents do not hesitate to learn from their children.”
Judge Calabresi's comment is a symptom of broader tendencies in contemporary constitutional law.
Several Supreme Court opinions
and recent law journal articles
expressly raise the question of the relevance of *1227
learning from our “offspring.” But precisely how can we go about learning? Scholars in the field of general comparative law have paid a great deal of attention to similar questions.
Some of the best work in the field suggests skepticism about any direct “borrowing” of solutions developed in one system to resolve problems in another.
One version of the difficulty is this: Comparative study is sometimes said to allow a person embedded in one system to gain some distance from it.
Having become intellectually estranged from that system, one can then see that seemingly unchangeable arrangements actually might be altered without substantial loss and sometimes with substantial gain.
Familiar arrangements seem necessary to us, but comparative study demonstrates that they might be false necessities. And yet the estrangement, the sense that particular arrangements might indeed be false necessities, could be misleading. Some think that comparative study is worth little if it consists of yanking something that seems useful out of one system in which it is embedded and inserting it into another.
Put another way, we might begin by believing that certain arrangements are necessary, then have that belief displaced by comparative study into thinking them false necessities, only to learn, on deeper *1228
comparative study, that they were necessary all along.
And if that is so, it is unclear what comparative study can do to inform the making of constitutional law.
This Article offers a more systematic approach to the possibility of learning from constitutional experience elsewhere. Its main effort is to describe three ways--functionalism, expressivism, and a process I call bricolage, using a term made familiar to social scientists by Claude Lévi-Strauss--in which comparing constitutional experience elsewhere might contribute to interpreting the U.S. Constitution. In addition, I seek to assess with some precision what the contribution of each approach might be.
Although I discuss these three approaches briefly here, I devote separate Parts to them in the remainder of this Article. My claim is, in the end, rather modest: U.S. courts can sometimes gain insights into the appropriate interpretation of the U.S. Constitution by a cautious and careful analysis of constitutional experience elsewhere.
Functionalism claims that particular constitutional provisions create arrangements that serve particular functions in a system of governance.
Comparative constitutional study can help identify those functions and show how different constitutional provisions serve the same function in different constitutional systems. It might then be possible to consider whether the U.S. constitutional system could use a mechanism developed elsewhere to perform a specific function, to improve the way in which that function is performed here.
According to the expressivist view, constitutions help constitute the nation, to varying degrees in different nations, offering to each nation's people a way of understanding themselves as political beings. The United States may lie at one extreme of a continuum, but that would only make it all the more important to think about whether comparative inquiries could advance an expressivist understanding of U.S. constitutional law. It might seem that comparative study could do little with respect to constitutional provisions or doctrines understood in this constitutive sense, because each *1229
nation's constitution constitutes its people differently. The bulk of Part IV's discussion of expressivism aims at developing arguments that make it possible to think about learning from experience elsewhere in an expressivist mood.
The process I call bricolage is perhaps the method least familiar to U.S. constitutional scholars. Describing a people she studied who annoyingly seemed to appropriate elements of its culture from anything at hand, Margaret Mead wrote, “A picture of a local native reading the index to the Golden Bough just to see if they had missed anything, would be appropriate.”
Claude Lévi-Strauss called this sort of activity bricolage, the assembly of something new from whatever materials the constructor discovered.
Contemporary references to comparative constitutional materials may be a form of bricolage. Functionalists and expressivists worry about whether appropriating selected portions of other constitutional traditions is sensible, or whether the appropriation will “work” in some sense. The bricoleur does not have these concerns about maintaining proper borders among systems.
Comparative constitutional analysis can use the idea of bricolage in several ways. In contrast to functionalism and expressivism, which offer ways of interpreting particular constitutional provisions, bricolage cautions against adopting interpretive strategies that impute a high degree of constructive rationality to a constitution's drafters. Further, the idea of bricolage can displace our sense of the taken-for-granted in the constitutional system with which we are most familiar, without suggesting, as the functionalist would, that we can replace some parts of what we take for granted with elements appropriated from other systems. Finally, bricolage brings the historical contingency of all human action to the fore. It may therefore help us think about the recent interest in comparative constitutional law in the Supreme Court and the legal academy.
The suggestion that bricolage might somehow help us use comparative constitutional experience in interpreting the U.S. Constitution raises an immediate question: What does Lévi-Strauss have to do with interpreting the Constitution? More precisely, constitutional interpretation is an exercise within U.S. constitutional law, which has its distinctive methods and sources on which interpreters may justifiably rely. We must know what methods and sources authorize interpreters to refer to constitutional *1230
experience elsewhere before we can examine how that experience aids us in interpreting the Constitution. The next Part of this Article develops the argument that the Constitution, either in particular provisions or in the interpretive methods we have developed, licenses reliance on experience elsewhere through the three approaches I have sketched.
The succeeding Parts examine functionalism, expressivism, and bricolage in more detail. Each has the same structure. After briefly describing the approach that is the topic of the Part, I analyze a problem in U.S. constitutional law, initially using only domestic sources and then adding the functionalist's, expressivist's, or bricoleur's contribution. Each Part then proceeds to discuss the limitations of relying on experience elsewhere in the specific ways that functionalists, expressivists, and bricoleurs would, and concludes by sketching some connections among these varying approaches. Part VI defends the comparative enterprise as a form of liberal education in law.
Before launching into the extended discussions that follow, an advance warning seems necessary. By far the bulk of this Article deals with U.S. constitutional law, not the constitutional law of other nations. This apparent imbalance is justified, however, by the underlying inquiry. To know what we can learn from constitutional experience elsewhere, we must first find out how far we can go using only domestic resources. Comparative study may well produce only small, though perhaps important or at least interesting, adjustments to what we can conclude from those resources.
Indeed, it would be quite surprising to draw dramatically different conclusions once we introduce comparative considerations, for that would mean that people who had done and thought about U.S. constitutional law for two centuries had somehow overlooked something quite fundamental."
108 Yale L.J. 1225, 1225 -1230 (1999) [footnotes omitted].