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The Rise and Fall of Comparative Constitutional Law in the Postwar Era

Written by  David Fontana

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There have been four confirmation hearings in the United States Senate for nominees to the Supreme Court since 2004—first, for John Roberts to be the new Chief Justice of the Supreme Court in 2005, and then for Samuel Alito in 2006, Sonia Sotomayor in 2009, and Elena Kagan in 2010 to be Associate Justices. Each nominee faced hundreds of questions from a range of senators on a range of different constitutional issues. Among the thousands of questions asked in these four different Senate confirmation hearings, there were only a few issues that were raised in each of the four. One such issue was the role of comparative constitutional law in the American constitutional system.

Senators performing for the television cameras are not the only ones with the feeling that something important and at least somewhat fresh and new is developing in our constitutional system. Just over ten years ago, Mark Tushnet wrote about the new possibilities of comparative constitutional law,  and Bruce Ackerman wrote about the rise of world constitutionalism.  Comparative constitutional law might offer different lessons to different scholars, but the sense shared by all is that something new and original is transpiring—that the Founding Moment for the domestic American Constitution might have transpired in 1787, but the Founding Moment for comparative constitutional law is right now.

However universal this sense is that comparative constitutional law is new to the world of the American law school, it was actually universally studied in American law schools in the first few decades after World War II. Within a year of being appointed Chief Justice of the Supreme Court in 1953, Earl Warren traveled to Germany, Japan, and South Korea, speaking to audiences about a “revival of comparative jurisprudence”  in the United States.  Indeed, fifty years before the Senate Judiciary Committee asked Chief Justice Roberts about comparative constitutional law, Fortune Magazine ran an essay written by Chief Justice Warren about the importance of studying the constitutions of other countries. In statements that today might have prompted calls for his impeachment, Chief Justice Warren indicated that the principles in the American Constitution were not “discovered by our Founding Fathers. They had learned from the experience of people of all ages. But put together as they were and adapted to our conditions and mores, they have served us well.”  Justice William O. Douglas gave a series of lectures and published a book about the constitutional law of India.  Justice Robert Jackson, after working on the Nuremberg Trials, traveled the country and the world discussing recent comparative constitutional changes.

The actions of these three Justices were not anomalous, but were instead a reflection of the burgeoning interest in comparative constitutional law in American law schools during that time period. Many law schools created comparative constitutional law classes during the first few decades after World War II, and a substantial percentage of the articles in the two leading law reviews (the Harvard Law Review and The Yale Law Journal) touched in some way on comparative constitutional law—almost as many articles as touched on American Supreme Court cases resolving issues of American constitutional law. Erwin Griswold—Dean of the Harvard Law School for twenty-one years, Solicitor General of the United States under President Nixon, and the lawyer who argued more cases before the United States Supreme Court than any other during the twentieth century—wrote several law review articles about the constitutional experiences of foreign countries.

But just as quickly as comparative constitutional law came to prominence in American law schools, starting in the early 1970s it began to disappear. Law schools that had earlier created comparative constitutional law classes scrapped those classes in the next few decades. The same two leading law reviews that had earlier published many articles on comparative constitutional law issues then went several decades before publishing another article touching on the topic. Just as soon as comparative constitutional law rose to prominence, it disappeared into thin air.

The reasons for the rise—and later the fall—of comparative constitutional law are complicated, but many of these reasons revolve around the changing focus of the elite members of the legal profession. This dynamic explains why comparative constitutional law first rose to prominence in the decades after World War II, when American lawyers returned from their service overseas and the attention of the profession and the country was focused overseas; it also explains why when the attention of the profession turned inward during the years of the Warren Court, comparative constitutional law largely disappeared. This dynamic of a profession engaged in comparative developments was also cultivated by scholars of comparative constitutional law themselves. The profession started to focus more on public law litigation in American federal courts during later years, and this activity occupied many of the resources and energy that had earlier gone to comparative constitutional examination. Examining this world of American law schools after the fall of comparative constitutional law can also point to some of the deficiencies in American constitutional scholarship and some of the reasons why an infrastructure and related social movements have organized and supported Warren Court-style domestic litigation—to the detriment of comparative constitutional law, and therefore to the detriment of American judicial review. A similar story and division of time periods could be told for comparative law more generally, but this Article begins this story by focusing in particular on comparative constitutional law, which I define as the study of the domestic constitutional law of other countries.

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