Response Essay: Why Constitutional Comparativism Is Different: A Response to Professor Tushnet

Document Type

Book Chapter

Publication Date

2011

Publication Information

in International Law in the U.S. Supreme Court: Continuity and Change 518 (David L. Sloss, Michael D. Ramsey, & William S. Dodge eds., 2011).

Available in Kresge Law Library

Abstract

From the Publisher

Professor Mark Tushnet is one of this country's leading scholars of comparative constitutional law, and his short essay reflects the traditional internationalist position in favor of constitutional comparativism. He defends Lawrence v. Texas and Roper v. Simmons as unremarkable cases consistent with a long line of Supreme Court precedent. The only thing remarkable about these cases, Professor Tushnet argues, is the tempest in a teapot they have generated.

I offer here a few brief reflections on where I disagree with Professor Tushnet, focusing on two key issues: (1) why the problem of selective use of comparative material is so intractable and (2) why the case for constitutional exceptionalism is not based on a belief in American superiority. Given space limitations, I do not address other areas of disagreement. For example, I do not address Professor Tushnet's claim that scholarly criticism of constitutional comparativism is motivated by an originalist agenda. As I have written elsewhere, the most thoughtful critics of constitutional comparativism are not movement conservatives, but respected scholars who present cogent concerns that have nothing to do with originalism.

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