Comparative Constitutional Analysis Is an Appropriate and a Legitimate Aspect of American Judicial Review
Comparative research has been an important component in creating the constitution as well as determining the consequences of the constitution. This is where comparative analysis gets its meaning. It is the use of other court holdings to interpret constitutions. This includes the use of constitutions from other nations (Hirsch, 2005). This is different from international law. International law means the legal system that directs the relationship between nations. An example is the international treaty that nations sign to guide their legal behaviours to, for example, reduce pollution or conserve water. The universal declaration of human rights is another example. Article one for example indicates that; “all human beings are born free and equal in dignity and rights” (Ginsburg & Merritt, 1999, p. 2). This is a universal law shared by various nations worldwide (Ginsburg & Merritt, 1999).
This essay argues that for the American Judicial Review, comparative constitutional analysis should only use court rulings from the nation, and not from other countries. This is because countries have different circumstances under which the laws are enacted, countries have different cultures, and constitutions of each country have a history of political influence.
Yes, the U.S should only use its laws and constitution in comparative constitutional analysis. This is because constitutional provisions are political constructs that are characteristic of a particular country. Take the example of the abortion law (The Pew Forum, 2006). Different countries have different legislation concerning the matter. In Israel, it was made legal to preserve the mental and physical well-being of the woman, to save the life of a woman, and in cases of incest or rape. It was also allowed in complicated public circumstances and cases of foetal impairment. In Egypt, the laws about abortion are informed by its Penal code of 1937. The Penal code banned abortion, but there is flexibility in the criminal law which uses, ‘necessity’, as a ground to allow abortion. In another country Canada, the laws were relaxed after the Supreme Court made a judgement that the laws against abortion were undemocratic. The government then tried to enact laws that restrict it in certain conditions, but this was not to be fulfilled. Abortion is, therefore, legal in Canada, and there is no criminal code on the practice (The Pew Forum, 2006). These three countries’ laws show how each constitutional provision is a political construct specific to a country. It is therefore inappropriate to use other countries’ constitutions to analyse the U.S constitution. If U.S were to compare its constitution using the Egyptian laws, the meaning of such a constitution to its people would be distorted. This is because each constitution is formed to serve the interests of its people. The people influence the constitution through the political constructs of the society and culture, and the constitution also influences the culture of the people. America has a history of formulating its laws just like other countries. There are different circumstances and reasons for formulating the laws, which are expected to guide the society to uphold morality, among other aims of the judicial system. These differences explain why it would be inappropriate to use other countries’ laws in interpreting the American constitution.
This brings in a new argument about culture. The culture of the people influences their law making behaviours. If a country is ever exposed to drug dealing practices from a specific community, it may develop stringent rules against members of that community to help reduce the crime. The same stringent rules cannot be applied by a different nation because such a nation does not have the same kind of people. It is indicated in lesson II that a country’s constitution cannot be exported or imported because such laws are exclusive to a particular country (Lesson II). The constitution of a nation also influences the culture that people develop. Take the example of the American Bill of Rights. Hirsch (2005) indicates that this Bill of Rights has developed a very poor culture among Americans of always full of self-interest and forgetting communal values. The current “culture of rights” has changed the Americans’ manner of relating to others. It has developed a culture where people judge others by the limitations of their freedom. One’s fulfilment, self-realization, and freedom have turned out to be something that is achieved through one’s assertive capacity on others’ limits (Hirsch, 2005). Other countries may have developed this culture. Culture in turn influences what is to be enacted in the constitutional laws; therefore America should only use its laws in interpretation of its constitution.
This analysis shows that the constitution of a nation shapes the culture of the nation. This is the same way comparative constitutional analysis has shaped the practice of American Judicial Review. This is evident in the use of previous cases in the analysis of unconstitutionality of other laws. Examples include; In Foster v. Florida, the dissenting and concurring justices both present previous cases for reference. In one of the cases, Knight v. Florida, both Justice Thomas and Breyer had presided over. While concurring, Justice Thomas emphasized the importance of consistency and for that reason, the Judge expected people to understand that if the death penalty was just, then they should accept the consequence of a lengthy delay.
Justice Breyer, on the other hand, argued that the lengthy proceedings were a violation of the constitution that prohibits “cruel and unusual punishments”. From this case, a new consequence of the court’s action could be added to the list of the prohibited.
The proper role of a constitutional court should be to interpret its constitution appropriately, uphold justice and ensure its purposes are achieved. The analysis explains the connection between the laws and culture. It shows the important role comparative constitutional analysis has played in the American judicial review practice. There is no way the constitutional court can achieve its proper role by using other countries’ laws to interpret its constitution. Each country’s constitution is different for one reason; the countries’ cultures are different. Opponents might argue that there are court cases from other countries that can be used to interpret the constitution because of the similar circumstances under which they occur. Whatever is constitutional in America may not be constitutional in another country. The main point is that, it is an American constitution, which has been shaped over time by American politics, culture and experiences. These are not similar to any other country.
Some opponents might argue that there are certain clauses that comparative analysis should apply other nation’s laws. Comparative analysis applies to almost every clause so long as the justices explain the meaning of their interpretations. Both sides of the judges are free to present their understanding and interpretations so long as they uphold the role of the courts in interpreting what is constitutional or not (Hirschl, 2005). In upholding the role of the courts, culture plays an important role. It determines what is unconstitutional or not. This explains why it is inappropriate to use the other countries’ cases to make a decision.
This argument applies to other countries as well. This is because comparative constitutional analysis has been established to be a legitimate element of judicial review, and judicial review is a worldwide practice. According to Nelson (2000), judicial review was previously an American phenomenon, but other countries soon adopted it. Each country nevertheless, has a constitution and if any law from an outside country should be used to interpret the constitution, it should be done at the enactment levels. When enacting laws, countries can compare the effect of such laws before implementing them. That way, the laws will be part of its constitution. It is however inappropriate to use other countries’ laws to interpret the constitution of a nation. Law and culture influence each other, and each country is characterised by different cultures.
Hirschl, R. (2005). Looking sideways, looking backwards, looking forwards: judicial review
Vs. Democracy in comparative perspective. Commentaries on Mark Tushnet’s Taking the Constitution Away from the Courts.
Nelson, W. E. (2000). Marbury Vs. Madison: The Origins and Legacy of Judicial Review, 104-113.
The Pew Forum. (2006). Abortion laws around the world. A Pew Forum Fact Sheet.
Lesson II. Chapter 5. The Foreign Affairs Power: 5-2. Treaties and Executive Agreements at 372.
Foster v. Florida, 537 U.S. 990 (2002)
Knight v. Florida, 528 U.S. 990 (1999)
Lawrence v. Texas, 539 U.S. 558 (2003)