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