The spread of constitutional government around the world has generated enormous interest in the comparative aspects of constitutional law. The scholarly literature in comparative constitutional law is large and growing. Recently, for example, comparative scholars have usefully explored how new constitutions get implemented, compared mechanisms of judicial review, traced sources of instability in constitutional systems, assessed the place of constitutions in authoritarian regimes, examined the role of constitutional courts in transitions to democracy, demonstrated and explained the lifespan of constitutions, and investigated the significance of constitutional preambles. Every year there are conferences around the world on comparative constitutional law. Universities offer courses and even degrees in comparative constitutional law and they host institutes and projects dedicated to the topic. There are also numerous professional organizations and journals for comparative constitutional law scholars and their scholarship.
Comparative constitutional law scholarship might involve historical inquiry. However, comparative constitutional history itself has not yet fully emerged as a distinct and independent field of study. Over the past decade, we three have been part of an effort, through a collaboration among the University of Illinois, the University of Bologna Department of Legal Studies, and the Center for Constitutional Studies and Democratic Development, to address this shortcoming by energizing the comparative study and analysis of constitutional history—in other words to establish comparative constitutional history as an important subject in its own right.
Among other activities, we have organized a regular series of academic conferences on the specific topic of comparative constitutional history. These conferences provide a forum for presentation and discussion of research on issues of constitutional history that cross national boundaries as well as historical work in single jurisdictions that can benefit from input from comparative-minded scholars. More broadly, the conferences create a setting for considering the usefulness of comparative historical work on constitutions, challenges in undertaking that work, and best methodological practices. In order to promote cohesion, each conference is organized around a theme. The conference meetings rotate between Bologna and Chicago and they have attracted engaged and energetic scholars from all over the world.
Recently, we entered into an agreement with Brill to publish, as a single edited volume, peer-reviewed essays from each conference meeting. Two volumes of essays have so far appeared. The first, Comparative Constitutional History: Principles, Developments, Challenges, was published in 2020. The second, Comparative Constitutional History: Uses of History in Constitutional Adjudication, has just been released.
Uses of History in Constitutional Adjudication
Contributors to the volume on “Uses of History in Constitutional Adjudication” tackle some big and important questions about the role history plays—and should play—when courts decide constitutional cases.
In a very general sense, use of history is unavoidable in constitutional adjudication because courts resolving constitutional disputes necessarily examine events that occurred and laws that were adopted in the past. Constitutional adjudication also invites consideration of other historical materials—such as dictionaries and records of drafting processes and ratification debates—that might shed light on the meaning and application of a constitution’s particular provisions. As the chapters in the volume demonstrate, there is considerable debate about the relevance and reliability of historical sources for construing a constitution and courts around the world vary significantly in their consideration of historical sources in deciding constitutional cases.
Should, for example, the words of a constitution be understood to mean today what they meant at the time the constitution was adopted? (In the United States, public meaning originalism, in which provisions of the U.S. Constitution are deemed to have the meaning they had to an ordinary reader at the time of ratification, is now ascendant.) Should constitutional meaning be informed by what the drafters of the constitution stated to be their understanding of the document or the way in which they expected it to operate? Are historical public debates over the adoption of a constitution relevant to reading its provisions today? How does a country’s history before the adoption of the constitution bear on constitutional meaning? If a constitution represents a break from a prior repressive or otherwise unjust regime should courts construe the constitution’s provisions in light of that background? Are historical origins more—or less—relevant in a country where there has been a revolution or other dramatic development than in nations that have adopted a new constitution but without a fundamental shift in the political system? Are former constitutions relevant to interpreting a new constitution—by, for example, demonstrating points of continuity or change—or should past constitutions just be set aside? To what extent does history reduce indeterminacy in constitutional interpretation?
The chapters in the volume explore these and related questions through close analysis of judicial practices across the globe. The chapters provide both in-depth examination of the work of supreme and constitutional courts in single jurisdictions (coverage includes Brazil, Spain, Japan, Taiwan, Canada, Hungary and the United States) and offer comparisons across nations that reveal and account for similarities and differences (e.g., between Germany and South Africa and between Canada and the United States). Together, the chapters demonstrate some striking ways in which courts around the world have engaged with the past. Drawing upon the practices they identify, the contributors to the volume offer also normative accounts of history’s relevance.
Two Examples
Two exemplary chapters give a sense of the range and depth of the volume.
Justin Collings’s chapter is entitled Memory as Mantle: Evil Pasts and Judges’ Power in Germany and South Africa. Collings explores the significance to constitutional adjudication of a particular kind of history: the memory of a nation’s own evil past. Collings is interested in how courts wrap themselves in what he calls the mantle of memory in order to secure their own authority. He draws insightfully on the examples of the Constitutional Court of South Africa and the German Federal Constitutional Court to show that past evils provide a reference point for constitutional interpretation but also, and perhaps more significantly, as a basis for judicial power. Collings explores how both of these courts have presented themselves as playing important roles in responding to and overcoming historical evils. But, Collings shows, the two courts invoke memory in different ways. While the South African Court has regularly drawn linkages to colonialism and apartheid, the German Court has been far more sparing in its references to Nazism. In addition, in both systems, memory has at times meant judicial deference rather than a heightened role for courts. Nonetheless, memory as mantle has allowed both courts to secure a role as democratic guardian. Collings concludes his chapter with some intriguing suggestions about the possible anti-democratic purposes memory as mantle might play in other contexts.
Another chapter in the volume, by Jean-Christophe Bédard-Rubin, is entitled Comparing Constitutional Historicities: The Case of Precedents in Canada and the United States. Bédard-Rubin focuses on precedent as a vehicle for exploring some striking differences in the influence of history in constitutional adjudication in the United States and in Canada. Bédard-Rubin shows that while adherence to precedent is an important aspect of constitutional adjudication in the United States, precedent has much less significance to courts in Canada. As he explains, for the U.S. Supreme Court to overrule a past decision under the Constitution requires special justification and generates significant public attention. On the other hand, Bédard-Rubin demonstrates, the Supreme Court of Canada revisits its own rulings under the Charter with little fanfare. Bédard-Rubin incisively explains why the role of precedent is so different in these two neighboring countries. Among other factors, he points to a constitutional culture in the United States in which there is a dominant historical narrative about the origins and trajectory of the constitutional system and the rights it protects. That culture, Bédard-Rubin contends, supports a strong commitment to precedent in American jurisprudence—and has no counterpoint in Canada.
Invitation
The next conference in the series will be held at the University of Bologna Department of Legal Studies on September 14-15, 2023. The theme of that conference is Landmark Judgments. We warmly invite scholars interested in that topic—and particularly in its comparative dimensions—to respond to the call for papers for the conference and to join us in Bologna.
More generally, we invite readers to join us in thinking about the rich possibilities that comparative constitutional history, as a distinct subject, offers.
Posted by Francesco Biagi (Bologna), Justin O. Frosini (Bocconi) and Jason Mazzone (University of Illinois)
British Association of Comparative Law 