Wednesday, May 18, 2011

Comparative Constitutional History, continued

As I mentioned in my previous post, I’m trying to come up with ways to smake my comparative constitutional history course something more than a course in comparing other constitutions to the US constitution. That aim assumes, of course, that it’s wrong to teach the seminar from a US centered perspective, and not everyone shares that view. I should also note that its a lot easier to use the US Constitution as the centerpiece of the course, especially in light of the fairly recent (since I last taught the seminar, that is) publication of George Billias’s book.
But I think there’s something to be said for trying to rise to the challenge of teaching a real comparative history course. So that’s the goal and here are the ways I’ve tried to set about reaching it:

Over the course of the semester, some aspects of the seminar spontaneously lead to brief forays into real comparison. Sometimes, I have a student in the class with a strong background in the history or constitution of another country; students like that can help push comparisons that go beyond the US Constitution. The presentations sometimes prompt a similar process. As students do presentations on particular constitutional moments, they come to see themselves as subject experts. And that sometimes leads them to make comparisons between the constitution they studied and other constitutions. So too, the books I assign tend sometimes make or invite comparisons. 
Of those three forces, the books are probably the most reliable way to inspire comparison. Unfortunately, there are not a lot of historical studies of other constitutional systems (at least not in print or in English). As problematic, there is the issue of student resistance to having to read too many books. [I confess, I do not completely understand this objection, as a practical matter I assign fewer readings to law students per week than I assign to undergraduates, and far less than I assign to graduate students. But the law students complain. When I’ve asked about this, law students have assured me that they have lots of reading for their other classes and it’s the total reading they do in a week that becomes the problem. I'm a bit skeptical, I don’t actually think law students read as much in a week as a typical history major, and I am fairly certain they don’t read as much in a week as a typical graduate student who is taking 2-3 seminars and acting as a teaching assistant to an undergraduate course.  So I find the too much reading objection hard to completely grasp. I wonder whether it's partly a function of expectations based on law students' undergraduate majors, but maybe I'm just misremembering how much I read when I was in law school, or maybe I don't understand how much law students these days really are doing.]
On the theory that the outside readings do help encourage comparative discussions, I’ve tried, on occasion, to assign articles along with constitutions in the weeks we don’t have books. That can help provide a basis for discussion; we can compare, for example, the citizenship described in one article with the description of citizenship we saw in an article from an earlier week.
Unfortunately, articles typically assume that readers have a historical background, so either we need to do the articles along with student presentations (which leads to a complaint of too much reading) or I have to provide a background lecture on the relevant history before we can have any discussion. And in my experience, if a seminar begins with me talking a lot, then its hard to get discussion going. So I've decided its better to go the route of having the presentations, and dropping the articles.
But that gets us back where we started. My current theory is that the way to encourage discussion that moves beyond the straight “how is this constitution like, or not like, the US constitution?” is by providing yet another framework for the class discussion. You will recall that early on in the semester I try to get the students to look at each constitution in terms of a checklist, which is is derived from our discussion of what a constitution is. That does help frame future comparisons to the extent that it makes it easy enough to see that last week’s constitution, with its single term presidency, is different from the constitutional monarchy we are discussing this week, and that both are different from a constitution with a prime minister in a parliamentary system.
But it's possible to move beyond that to a more complex framework for discussion. I've come up with two ways to do this. One is to shift from the general comparison invited by the checklist to a more specific focus on particular elements of the constitutions we read. Usually this happens somewhat organically over the course of the semester, as the class becomes interested in certain issues. For example, one year our discussion continuously circled around the issue of federal systems vs. centralized constitutional governments. Another year we kept coming back to citizenship. And several semesters, our discussion has focused on the various ways different constitutions dealt with rights. 
Shifting the conversation so that we begin to focus more on how each constitution we study engages our theme is one way to move the discusson beyond the checklist. But it doesn't always get us to put down the crutch of comparisons to the US Constitution since, most of the time, the themes that we find interesting are themes we identify with, or derive from, the US Constitution.
Another approach, is to  shift the discussion away from the checklist so that we begin to talk in terms of a constitutional lifecycle. If we assume that any constitutional system begins, exists (if only briefly) and will some time come to an end, we have a three-stage lifecycle. As a practical matter, all the books we read and most of the presentations, focus on one stage or another in that lifecycle. For obvious reasons, founding moments are often interesting to the students doing presentations and to authors of books of constitutional history, but there are also books that talk about how and why a particular constitution began to function in a particular way. And there are also books that discuss how and why a given constitution failed.
Using these stages to shape discussion provides a framework on which to build comparisons. If we are looking at the founding moment for this week’s constitution, we can obviously compare it to the founding moments for other constitutions we know about. From that, it's a short step to more complicated comparisons. We can think about the different aspects of the founding moment.  Perhaps, for example, the first time we talked about the founding of the constitution in terms of the processes that prompted the decision to create a new constitution. Another time, the readings or the presentation focused on the decisions about what materials to put into the constitution, and what to leave out. So in one week we've talked about the role of social (or political or economic) forces in prompting creation of a constitution, and in a second we've addressed issues of constitutional borrowing (why were some things borrowed and some not? what countries were things borrowed from and why?). So we can talk about these different perspectives on founding moments.
From that we can, maybe, get to a discussion of the differences between examining constitutional history as a matter of social or political processes and considering constitutional history as a type of intellectual history. And if we’re really going crazy, we can complicate it further, considering whether there are elements of intellectual history at play even in a history that looks at social forces, or whether there are social forces driving choices in our intellectual history.
And over the course of the semester, we might even be able to make comparisons across the stages of a constitutional lifecycle. Constitutional borrowing is not limited to a constitution’s founding period, so if we see examples of it at another stage we can consider that process in different contexts. And we can also think about why some constitutional systems might chose to borrow at certain moments, while others might not.
Or we can think about the role of social movments at various stages in a constitutional lifecycle, and along the way consider why a reform movement in one country led to the end of a constitutional system, but simply prompted reforms to the extent constitution in another country. Or we can bring in specific elements of a constitution, like citizenship, to see how their importance waxes and wanes depending on where in a constitutional lifecycle we are.
All of that gets the discussion away from simply comparing everything to the US Constitution and actually sets in motion a kind of comparative history that lets us plot resemblances and differences on a matrix, maybe even (I’m not real spatial, sorry) a multi-level matrix. And that strikes me as a good thing both because to some degree complexity is good in and of itself, and also because it helps complicate the way we think about particular constitutions, including the US Constitution.

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