Constitutional Law

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Tin Nguyen - One of the best experts on this subject based on the ideXlab platform.

Emily Mayers-twist - One of the best experts on this subject based on the ideXlab platform.

Iantha Haight - One of the best experts on this subject based on the ideXlab platform.

Mary Martin - One of the best experts on this subject based on the ideXlab platform.

Mark Tushnet - One of the best experts on this subject based on the ideXlab platform.

  • Writing While Quarantined: A Personal Interpretation of Contemporary Comparative Constitutional Law
    SSRN Electronic Journal, 2020
    Co-Authors: Mark Tushnet
    Abstract:

    This Essay is a personal reflection on the state of scholarship in the field of comparative Constitutional Law. I draw parallels between the development of and reaction to “critical perspectives” on domestic US Constitutional Law in the 1970s and 1980s and the development and reaction to similar perspectives on comparative Constitutional Law today. I argue that the parallels have similar political roots, in concern that critical perspectives undermine the ability of Constitutional Law, whether domestic or comparative, to resist conservative and anti-liberal tendencies. I conclude with some speculations about the source of the political commitments by scholars of comparative Constitutional Law, and in particular about the way the field’s overall cosmopolitanism affects scholarship on anti-cosmopolitan populisms.

  • new institutional mechanisms for making Constitutional Law
    2016
    Co-Authors: Mark Tushnet
    Abstract:

    Traditionally, two general methods have been used to make Constitutional Law. The first involves creating a Constitutional text, and has been done by constituent assemblies convened especially for that purpose or by legislatures either proposing replacement constitutions or more limited Constitutional amendments. The second involves interpreting existing Constitutional texts, and has been done by specialized Constitutional courts or generalist courts. After describing briefly what we know about how Constitutional Law is made by these traditional methods, this essay turns to some recent innovations in making Constitutional Law, which I describe generically as involving substantially higher levels of public participation than in the traditional methods: the process of drafting a proposed new constitution for Iceland, and the practice of “public hearings” in the Brazilian Supreme Federal Court. My aim is to identify some features of these newer methods that might be of interest to scholars of comparative Constitutional Law. For that reason, the essay paints in deliberately broad strokes, isolating features that may point in the direction of a more general understanding of constitution-making processes while ignoring features that may play crucial roles in the two specific processes on which I focus.

  • Constitutional Law: Critical and Comparative
    SSRN Electronic Journal, 2015
    Co-Authors: Mark Tushnet
    Abstract:

    This brief essay serves as an introduction to a volume of studies by Latin American scholars of Constitutional Law and theory responding to themes in my work. It outlines the jurisprudential and historical-political background against which my work developed, stressing the important roles played by American Legal Realism and the politics of the 1960s in shaping my thinking. The essay explains how my interest in populist Constitutional Law and dialogic forms of Constitutional review emerged from the same background, but was strengthened by an interest in comparative Constitutional Law that I developed in the 1990s.

  • Global Perspectives on Constitutional Law
    2008
    Co-Authors: Vikram D Amar, Mark Tushnet
    Abstract:

    An ideal supplement for professors who wish to incorporate comparative Law into their Constitutional Law courses, Global Perspectives on Constitutional Law introduces students to the various ways that nations other than the United States resolve contemporary Constitutional questions. Covering both structural issues and individual rights, the book offers a wide but select range of readings on interesting Constitutional issues in sixteen accessible chapters. Each brief chapter presents foreign case materials on a particular Constitutional topic along with notes and questions that further illuminate the comparisons between U.S. Constitutional Law and that of other nations. Featuring selections by expert contributors from a variety of ideological and demographic backgrounds, the volume is designed to encourage students to reexamine and deepen their understanding of U.S. Constitutional Law in light of the alternatives offered by other systems. Features *Modular design of chapters allows instructors to pick and choose which topics they use for comparative study *Brief chapters can be easily integrated into relevant class discussions *Chapters authored by top Constitutional Law scholars who frame the cases with introductory and concluding comments *Covers a broad range of contemporary Constitutional issues including property rights, abortion rights, regulation of hate speech, regulation of campaign finance, and religious freedom

  • The Inevitable Globalization of Constitutional Law
    SSRN Electronic Journal, 2008
    Co-Authors: Mark Tushnet
    Abstract:

    This Essay examines the forces pushing the presently varying forms of domestic Constitutional Law toward each other, and the sources of and forms of resistance to that globalization (or convergence, or harmonization). After a brief introduction sketching claims for the existence of a "post-war paradigm" of domestic Constitutional Law and competing claims about national exceptionalism, the Essay sketches the "top down" pressures for convergence - judicial networks and actions by transnational institutions, including transnational courts, international financial institutions, and transnational NGOs. It then turns to "bottom up" pressures, from domestic interests supporting local investments by foreign investment and high-level human capital and from Lawyers engaged in transnational practice. A discussion of counterpressures from the supply side follows. These counterpressures include resistance from local interests, including authoritarian or semi-authoritarian political elites, and subtle but perhaps deliberate misunderstandings that can arise when superficially similar legal arrangements take on distinctive local meanings. The Essay discusses whether the mechanisms it identifies lead to a race to the "top," to the "bottom," or to some more variegated location. It concludes with a brief treatment of how the globalization of domestic Constitutional Law can be accommodated to local notions of separation of powers.

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