Saturday, May 14, 2011

Comparative Constitutional History

As I suggested earlier, teaching comparative constitutional history has its own unique challenges. The good news is that everyone in the class feels equally uncomfortable with both the constitutions and the historical material. The bad news is… Well, you presumably get the picture.

I teach comparative constitutional history about once every other year as a seminar for a mix of law and grad students.  The course moves more or less chronologically, looking at a constitutional system a week in its historical context.   There are three goals for the course: to think about how and why constitutions (and constitutionalism) changed over time; to look at trends in constitutions; and to think about how history (local and global) and context work together to shape constitutional orders.

Readings for the seminar take a couple of forms: We read a constitution every week. Three or four weeks we also read a book that discusses some aspects of that week’s constitution. For those weeks without a book, 1-2 students do a presentation on the historical background of the constitution we are reading; ideally that presentation provides some introduction to the constitution as well, identifying some key issues or providing a context for its historical significance.

Comparative study is hard, particularly for students who haven’t done much (and most of mine have not), and the seminar format means I can’t just lecture our way through the various points and perspectives I think are important. So I try to work it so that we progress through several layers of analysis over the course of the semester.

We begin by just discussing what a constitution is, I often use a document like Magna Charta to get a debate going about what basic elements a constitution has to include.  

Once we get that on the table, our discussions in subsequent sessions move to a second layer of analysis. This approach, which we use a lot in the earliest weeks, works off of a checklist of basic elements of constitutions. Usually, the checklist reflects our working definition of a constitution; we may ask: What are the institutions of government in this constitution? How does the constitution define citizenship (or does it do so)? What does citizenship entail? What rights, if any, are set out? How are they presented (do they appear to be absolute, or limited)? How might we characterize the rights we find (we often use Marshall’s civil, political and social rights framework here)? What processes of ratification, amendment, or review do we see here?  Who are the constitutional actors in those processes?

That approach has several advantages. It creates an easy way to get into each week’s reading, and it helps call attention to some of the concepts in a constitution that might not be immediately apparent. It also offers a way of identifying trends (or ruptures) in constitutional design over time, and it can lead to exploration of the relations between the parts of a constitution. But its generic aspect tends to make it too easy to ignore the local influences on a particular constitution, and it puts far too much premium on the institutions and terms set out in the constitution, at the expense of thinking about the influence of popular forces (social movements) and external factors (economic crises) on the constitutional order. Those results offend my law and society sensibilities in general, but I also object because they tend to make it hard to think about a distinction I think is important to constitutional study—the contrast between the formal constitution and the actual constitutional order (by which I mean the interpretations, practices or customs that make up the constitutional system as it is works and is experienced).

So after a couple of weeks of using the checklist I try to shift discuss to some sort of analysis that lets us make more complicated comparisons and offers a way to introduce the idea that the constitutional document needs to be thought of in terms of practices, as well as text. The easiest way to do this is by considering how each constitution we are studying compares to the US Constitution as it was implemented at that particular period.  

This approach, which typically evolves fairly naturally over several weeks of discussion, helps make the conversation historical, since we can (ideally) build on our shared knowledge of US history and our understanding of how the US Constitution evolved over time. It not only allows for some interesting contrasts, but also permits a more complicated discussion of constitutional actions by making them less abstract. By inviting reflections on the ways in which the US constitutional system changed over time (often without any amendment to the constitution), this approach also introduces the idea that other constitutional systems may be different in practice than they are on paper. And, last but not least, since quite a few of the books on other countries’ constitutional histories either explicitly or implicitly draw comparisons to the US Constitution, this approach ties into those studies and is reinforced by them.

But the approach is not without problems. Most obviously, it assumes that everyone in the class thinks about US Constitutional law historically, which is not always the case (I average one reminder a semester that women did not have the right to vote in the US in the 19th century). In addition, using the US Constitution as the measure of comparison tends to reinforce the idea that it is the blueprint for all other constitutions. That’s clearly not the case, but it’s harder to unpack constitutional genealogies when your discussions are overshadowed by one constant comparison. The emphasis on US Constitutional history also reinforces the (often mistaken) view that constitutions evolve, when they do, through court cases. Finally, it invites a type of unreflective brand loyalty (or brand hostility) that can detract from discussions.   
Unfortunately, it’s hard to move beyond this approach—the law students like to talk about US constitutional case law and the history (or other) grad students usually know more US history than any other sort, so they’re all comfortable working in that space and want to stay there.So we putter along, mostly defaulting to talk about other countries’ constitutions in US constitutional terms—we look for judicial review, we compare the role of citizens, we look for rights, and so on. It's not all bad. We get a fair amount of history along the way, and we do see how constitutional ideals have changed over time and how particular sorts of pressures result in certain sorts of constitutional responses. But ultimately, we aren’t studying and comparing constitutions so much as we’re studying the US Constitution in comparative perspective.  By the end of the semester, our discussions and assumptions about the US Constitution are often far more complicated than they were at the beginning, and that strikes me as a good thing. Perhaps in a class that is mostly full of law students, that's the appropriate goal to shoot for.  

But it would be nice to do something a bit more complicated, and so there are a few things I try to do to push the conversation in other directions. Since this post is already long, I'll discuss how I try to bring the discussion to another layer of difficulty in another post in a couple of days.