The Three Methodologies in Comparative Constitutional Theory (Edward Elgar 2018)

The term methodology is conventionally defined as the set of principles that illuminate inquiry in a field. Scholars, moreover, seek to be parsimonious in discussing methodology. We prefer, however, to go back to the root of the term which lies in critically examining and re-examining the path that inquiry takes. Therefore, in the spirit of messy empiricism, we offer up not one but three methodologies that can be found in Comparative Constitutional Theory. Sometimes less is more but in this case we think that laying out the three distinct but overlapping pathways taken in the book is better than a reductionist approach.

The first pathway has to do with what the authors–Gary and Miguel–thought is the “right” way to put together an edited book on comparative constitutionalism. When Gary, the social scientist, approached Miguel, the academic lawyer, about the project, Gary said that he did not want too many damn lawyers in the book. Miguel agreed and said we should not have too many Americans as well. We then discussed and elaborated the big questions that comparative constitutionalists ask which formed the chapter studies. The table of contents can be found here.

The second pathway is deductive and is discussed in the first part of the Introduction to Comparative Constitutional Theory. Although framers of constitutions and scholars of comparative constitutionalism ask similar questions, there is a crucial difference between framers and scholars. The framers of a constitutional order pursue a vision of the good bound by the twin realities of elite negotiations and popular ratification. Scholars, on the other hand, have the freedom–detached from the politics of constitution making–to engage in the “clarification of concepts important to the activity of comparative theorizing.” Comparative Constitutional Theory, at 5.

The third pathway is inductive as it is found in the chapter studies and laid out in the second part of the Introduction to Comparative Constitutional Theory. Although the United States Constitution has been eclipsed as a model by newer and arguably better designed constitutions, there is an intellectual advantage to being the first mover in any field. The United States Constitution is the great intellectual overhang in comparative constitutional thinking. Its influence in shaping comparative constitutional theorizing ran through the various chapter studies and is reflected in the organization of the book. Issues such as constitutional structure, entrenched rights, constitutional interpretation, and constitutional change, and constitutional exceptionalism were all raised and discussed during the framing of the Constitution and continue to influence how we think.

One of the peculiar characteristics of constitutional design is that it does not readily fit within the existing disciplines found within the modern university. The great innovation wrought by the generation of men who papered over their disagreements by ratifying the United States Constitution is that they took inchoate ideas about government inherited from the past and fleshed those ideas out in a written document. Over time courts, which at the time of the framing of the American Constitution were bit players in the political-constitutional order, would eventually come to play a considerably more prominent role not only in the United States but around the globe. Yet lawyers obviously have no monopoly when it comes to the problems of constitutionalism writ large. The growth of courts in the constitutional imagination, moreover, has come at a cost which is that we have lost sight of the telos of constitutionalism which is to facilitate a decent politics. There is a serious and underexplored tension between constitutional law and constitutionalism.

We are at a peculiar moment of time when it comes to constitutional democracy. The old orthodoxy–liberal democracy–is increasingly under siege by populist and nationalistic currents. This is a powerful reminder of the importance of what Gary calls constitutional identity. Constitutions are shaped by the customs, habits, and beliefs of a people and contain profound disharmonies. If scholars are going to confront the problems raised by populism, they will need to refocus their attention away from courts to the core problématique of constitutionalism which is the fragility of institutions. Comparative Constitutional Theory is a step in that direction. The chapter studies have little to say about constitutional law but much to say about the core concepts that inform constitutionalism.

Gary Jacobsohn, H. Malcom Macdonald Professor of Constitutional and Comparative Law, Department of Government, University of Texas at Austin

Miguel Schor, Professor of Law & Associate Director of the Drake University Constitutional Law Center