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"Exceptionalism" or "parochialism"

By Jack M. Balkin

Adam Liptak has just posted an article on the declining influence of the U.S. Supreme Court in the rest of the world. One of the issues, of course, is the refusal of some members of the Court to consider foreign law themselves. One of the persons quoted is Eric Posner, a law professor at the University of Chicago:

?We are used to encouraging other countries to adopt American constitutional orms," he wrote in an essay last month, ?but we have never accepted the idea that we hould adopt theirs.? ?It?s American exceptionalism,? Professor Posner added in an interview. ?The view going back 200 years is that we?ve figured it out and people should follow our lead.?

Prof. Posner may be correct descriptively. And those who object to looking at foreign materials to help interpret the US Constitution certainly have a real argument with regard to the foundation of the Constitution in the popular sovereignty of "We the People." But consider the further implication of Posner's comment in the light of someone like myself who wonders about the adequacy of the US Constitution for us today. My own criticisms of the Constitution have almost literally nothing to do with "interpretation." For better or worse, unlike my beloved friend Jack Balkin, I am becoming less and less interested in the debates over how best to interpret the Constitution, precisely because the parts of the Constitution I am most interested in raise no real interpretive dilemmas and never generate any litigation, let alone Supreme Court decisions.

So perhaps we should consider the fact that almost no countries writing Constitutions in the "current era" (post 1970) have "followed the American lead" in terms of basic constitutional design. There is an almost unanimous "revealed preference" (a term that Prof. Posner should appreciate) around the world that the United States Constitution is not worth buying, unlike, say, some combination of the French, German, and Spanish constitutions. (The fact that almost all constitutions include bills of rights is beside the point; the US Constitution might at one timem been an inspiration on that score, but contemporary drafters are far more likely to look at the European Convention of Human Rights, the Canadaian Charter of Liberties, etc., than our own "Bill of Rights.")

One moral I take from this, of course, is that these countries are basically correct, and that we indeed have much we could learn, NOT necessarily by reading the decisions of other courts, though that could conceivably be both interesting and illuminating, but, rather, through looking at the systems other countries have adopted and trying to determine their relative success and failure compared to our own.

"American exceptionalism" has really become synonymous with boorish provincialism, which not only leads to increasing hostility to the US around the world, but, even more to the point, leaves us mired in smug satisfaction, especially on "Constitution Day," that we really have a Constitution we ought to mindlessly venerate instead of one that we might actually analyze and even make better than it is now.

I note for the record that the University of Chicago Law School has recently made the excellent appointment of Tom Ginsburg, a wonderful political scientist/lawyer and student of comparative constitutionalism. I assume that Prof. Posner approves of this appointment and, therefore, that we should read him only as describing a lamentable aspect of American political culture and not necessarily as endorsing it.

Full post as published by Balkinization on September 17, 2008 (boomark / email).