Constitutional Engagement in a Transnational EraPDF电子书下载

INTRODUCTION: CONSTITUTIONAL COSMOLOGY—CONVERGENCE, RESISTANCE, AND ENGAGEMENT 1

Transnationalism and Constitutional Review 1

The Distinctiveness of Constitutions as Law 3

The Functions of Judicial Review 3

An Expanding Universe of Law 5

Historic Relationships of Constitutions to a Global Audience 6

Three Postures toward the Transnational 8

Transnational Sources, Foreign and International 10

Engagement and Constitutional Law in the United States 11

Engagement in a Pluralist Global Context: Transnational Constitutionalism? 14

CHAPTER 1: RESISTING THE TRANSNATIONAL 17

A.Sources of Resistance 18

Constitutions as Self-Constituting and Self-Expressive 18

Interpretive Theory: Originalism, Contractarianism, and Popular Sovereignty 20

Interpretive Theory: Representation-Reinforcement and “Majoritarianism” 22

Law as Autochthonous Identity 24

Judging under Constraints: Sources and Discretion, Expertise, Opportunity Costs, and Comparison 26

Political Resistance: Nation-Building, Western Dominance, and Cultural Exceptionalism 27

Political Resistance and Principled Substantive Disagreement 28

The Political Economy of Transnationalism and Constitutional Interpretation 29

Cultural Elites, Self-Interested Judges, and the Politics of Citation 30

B.Jurisprudential Assumptions 30

Positivism 30

Organic Conceptions of Law 31

Will, Organicity, and Exceptionalism 32

C.Manifestations of Resistance: Silence, Indifference, and Active Resistance 32

Articulated Resistance Inside the United States 33

Silent Resistance or Indifference 34

Articulated Resistance Outside the United States 34

Ambivalent Resistance 35

Resistance in Specific Settings—Foreign Investment, Control of Natural Resources, and Supranational Regimes 35

D.Resistance, Differentiation, and the Expressive Function of Constitutions 38

CHAPTER 2: CONVERGENCE WITH THE TRANSNATIONAL 39

A.Influences toward Postures of Convergence 40

Of Archetypes, Incentives, and Supranational Courts and Organizations 40

Convergence or Fragmentation? 41

Convergence in Law or As Interpretive Posture 42

B.Convergence Postures and Their Normative or Jurisprudential Foundations 43

Universal Moral Rights 45

Epistemic Arguments 47

Interpretive Discretion and Legitimacy 48

Arguments from Judges’ Roles 49

Support for the International Legal System 49

Checks against Horrific Conduct or Backsliding from Democracy 51

Positive Textualist Arguments 52

C.Doctrinal Implications and Manifestations 54

Different Presumptions? 54

Extraterritorial Effects 55

Margins of Appreciation 57

Proportionality, Balancing, and Means-End Analysis 60

Scope of Its Use 60

Proportionality Inherent in Constitutional Review? 61

Divergent Predictions 63

Dualism/Monism and Convergence 64

D.Interpretive Approaches and Convergence Postures 65

Multiple Interpretive Roots 65

The Necessary Incompleteness of Convergence as Interpretive Approach 66

CHAPTER 3: ENGAGEMENT WITH THE TRANSNATIONAL 71

A.Engagement: Deliberative and Relational Modes 73

Deliberative Engagement: Australia, the United States, Canada,and Japan 73

Expressive and Affiliative Functions of Engagement 77

Relational Engagement: South Africa and Elsewhere 78

B.Normative or Jurisprudential Foundations 81

Positive law 81

Pragmatism or Consequentialism 81

Law as Inquiry 82

Autopoiesis 84

Process and Justification 84

Constitutional Law as Mediating the Domestic and the Global 85

C.Doctrinal or Interpretive Manifestations 86

Texts That Call For or Invite Comparison—Limitations Clauses and Other Examples 86

Multi-Valenced Interpretation 88

The Judicial Role, Constitutionalism, and Interpretive Approaches 90

Legal Hierarchies and Multi-Vocal Constitutionalism in Europe 91

D.Positive Influences 95

Globalization, Transnational Disputes, and Plural Legal Orders 95

Past Colonialism and the Commonwealth Nations 96

Increases in Comparative Legal Knowledge 97

Institutional and Strategic Concerns, Mandatory Consideration as Soft Monitoring 97

Independent Judging Gone Global: Judicial Networks and the Ideology of Judging 98

The Idea of Independent Judging in International and Constitutional Law 98

Judging as an Activity with Supranational Elements 99

Autonomy and judicial control of interpretive sources 99

Human rights law’s protection of judicial independence 100

Independence of judges from each other 100

Judicial Networks 100

Courts Constructing Influence? 101

CHAPTER 4: CONSTITUTIONAL ADJUDICATION IN THE U.S.SUPREME COURT: WHY ENGAGE THE TRANSNATIONAL? 103

A.Deliberative Engagement: An Internal Perspective 103

Reflective Comparisons and Expressive Aspects of Interpretation in U.S.Constitutional History 104

Freedom and Equality 105

Due Process and Criminal Procedure 106

Executive Power 106

Citizenship and Immigration 107

Cruel and Unusual Punishment 108

Overlapping Normative Commitments and Constitutional Justice Seen from Outside 108

Implementing the Constitution: Functionality and Doctrine 110

Change, New Problems, Health and Safety Regulation 111

Criminal Procedure 111

Separation of Powers 112

Federalism 112

The Law of Nations in the Constitution 113

Inevitability of Comparison, Multiple Perspectives, and Ethical Judging:Reflective Comparison and Impartiality 114

B.Relational Engagement: Constitutional Symbiosis in a Globalizing Legal World 117

Strategic or Institutional Goals, Weak State-Strong State Differences? 118

Moral Obligations and Claims of Outsiders 119

A Transnational Court? 119

An Influential Court? 120

Relational Constitutionalism and Minimal Cosmopolitanism? 121

Judges and National Legitimacy in a Transnational Environment 122

Judges as Diplomats? 123

Diffuse Instrumentalism, Diffuse Legitimacy 124

Jurisprudential Change and Constitutional Interdependence 124

Permeable Boundaries 124

Pluralism, Courts, and Constitutional Self-Defense 125

Constitutional Coexistence and Interdependence 128

CHAPTER 5: ENGAGEMENT, U.S.INTERPRETIVE THEORY, AND MULTIFUNCTIONAL CONSTITUTIONS 133

A.Engagement and Leading Interpretive Approaches 133

Text- or “Moment”-Focused Positivism, Originalism, and Intentionalism 134

Purposivism 135

Multi-Valenced （“Common Law”） Practice-Based Approaches 136

B.Rejecting Resistance: Legitimate Interpretation in the United States 139

Fear of Being Bound 140

Originalism and Formalism 140

Democracy, Self-Rule, and Sovereignty 142

Interpretive License 145

Separation of Powers, Federalism, and the Treaty Power 145

National Ethos and the Perils of Pragmatic Comparative Inquiry 147

Rule of Law, “Persuasive Authority,” and Judicial Discretion 147

Expertise and Bounded Rationality 150

Comparability Challenges 151

Constitutional Situation Sense, Contextualized Judgment, and Socialization 151

C.Questioning Convergence: Constitutions as Embodiments of National Distinctiveness and Plural Functions 154

Compromise and Constraint in Constitutional Design 155

Local Authorship and Universal Reason 155

Textual, Institutional, and Practice-Based Distinctions 156

Treaties, Presumptions, and Sub-Constitutional Implementation 157

International Law and Interpretive Space 158

Elusiveness of Goal 158

CHAPTER 6: ENGAGING THE TRANSNATIONAL: A CONTEXTUAL FRAMEWORK 161

A.Three Contextual Considerations 162

The Nature of the Issue and of Domestic Sources of Interpretation 162

Fifth Amendment Grand Jury Clause 162

Establishment Clause 163

Eighth Amendment 163

Security and Liberty 164

International Law as Embedded Element in Constitutional Terms 165

Transnational Sources and “Open” Questions 165

The Nature of the Transnational Source and its Proposed Use 166

Authority and Institutional Setting: Courts and Legislatures 167

Authority and Source of Law: International and Foreign Law 168

International law as binding or potentially binding 169

International law and questions of comparison 170

International law as “part of our law” 171

The limited scope of international law 171

General, aspirational, or conflicted norms； clarity and enforceability 172

Gravitational pull and seriousness among rule of law constitutional democracies 173

Seriousness and cosmoskepticism: Breard, Sanchez-Llamas, and Medellin 175

Comparability: Normative and Functional Concerns 178

B.Fair Usage, Fair Process, and Recent Controversies 183

Fair and Accurate Usage: Death Penalty and Gay Rights Cases 184

Hate Speech and the Importance of National Context 186

Fair-Mindedness and the Multi-Directionality of Transnational Law: The Exclusionary Rule 187

Procedures for Gathering and Considering Transnational Legal Sources 189

C.Institutional Constraints and Prudential Silences: Limits on Engagement? 192

Lower Courts as well as Supreme Court? 192

Prudential Noncitation, “Silent Dialogues,” and Internal and External Legitimacy 193

CHAPTER 7: ENGAGEMENT, EQUALITY, AND OLDER CONSTITUTIONS 197

A.Equality and Interpretation over Time: Federal Power to Redress Gender Inequality 199

Reading the U.S.Constitution Holistically 199

The Morrison Case: Federal Power and Gender Equality 201

The Commerce Clause of the Original Constitution 202

The Fourteenth Amendment 205

Doctrinal Specificities and the Hibbs Case 206

B.Citizenship and Gender: Nguyen 206

C.Abortion, Reproductive Freedom, and Equality 210

The Absence of Worldwide Consensus 212

Health, Autonomy, Multiple Perspectives and Gonzales v.Carhart 215

Social Rights, Social Reasons, Equality, and Abortion 217

Liberty and Equality at Stake 220

The Absence of a “Positive” State and the “Optionality” of Government Interests 220

D.Optional But “Compelling” State Interests in U.S.Constitutional Law:Affirmative Action in the United States and India 222

Constitutional Solidarity, Societal Discrimination, and Individualized Consideration 223

Temporary Measures? 224

Super-Classifications and Specially Subordinated Groups 225

CHAPTER 8: CONSTITUTIONAL PARTICULARITIES, FEDERALISM, AND THE TRANSNATIONAL 227

A.Federalism and the Limits of Interpretive Engagement 227

Historically Contingent Compromises 228

Interdependent Federal Balances 229

No Transnational Archetype 230

B.Federal Systems’ Varying Postures toward the Transnational 232

Theoretical Tendencies? 232

Federalism Tropes and the Transnational in the United States and Canada 234

Constitutional Commonalities 235

Distinctive Constitutional Histories and Federal Bargains 237

Founding Divisions and Historic Momentum 238

Age of Rights-Incorporating Texts 239

Geopolitics 240

Legal Culture: Rights and Negotiation, Written and Unwritten Constitutional Constraints 240

Legal Culture and Legal Education 242

C.Federal Systems, Constitutional Adjudication, and Transnational Sources of Law 243

Secession 244

Commerce, Criminal Law, and National Power 245

Rights and Federalism 248

Death Penalty and the Allocation of Criminal Jurisdiction 248

Group Rights, Group Remedies, and Federal Compromises 250

D.Toward Moderating Certainties about Federalism 252

CHAPTER 9: CONSTITUTIONS AS MEDIATING INSTITUTIONS, TRANSNATIONAL CONSTITUTIONAL VALUES, AND ENGAGEMENT IN TWENTY-FIRST CENTURY CONSTITUTIONAL INTERPRETATION 255

A.The Interdependence of Constitutional and International Law 257

Recognition of States 258

International Law and Domestic Constitutional Compliance 259

Overlapping Subjects 261

International Incentives for Domestic Constitutional Change 261

Interlock and Overlap 262

B.Boundaries and Transitions at the Intersection of International and Constitutional Law: Transnational Constitutional Values? 262

Boundaries, Membership, and Secession 263

Transitional and Transnational Constitutional Processes 265

Federalism and the National/ International Border 267

Risks of Transnational Constitutionalism: Law or Values? 270

C.The Future: The Gravitational Force of the Transnational and the Range of Constitutional Responses 273

Interdependence and Interpretation: Mediating the National and the Global 273

Constitutional Interdependence, Transnational Legal Process,Acculturation, and Changing Threats 275

Constitutional Diversity and the Mediating Role 277

Increased Interactions, Litigation, and Technology 278

Future Choices and the Enduring Significance of National Constitutions 279

NOTES 287

Table of Cases 477

Index 495