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Comparative Originalism

Thank you to Tom for noting my book review! I did want to add one thing: The issue of how the courts of other countries interpret their constitutions is relatively understudied. There is a good book with single-country studies from 2007 edited by Jeffrey Goldsworthy (Monash University, Australia).

I have a reply forthcoming in the Texas Law Review to an article on originalism in comparative perspective written by Jamal Greene. Professor Greene's very interesting article talks about originalism in a few different countries. In my reply--which I hope to expand into an article in the near future--I note that there are actually other countries where originalism is a topic of discussion and a source of constitutional meaning. As the reply (and the article) discuss, it tends to be the constitutions where the constitution is part of a nation-creating revolution--and so where the drafters of the Constitution have a special status because they are not just constitution drafters but nation-creators. This means that many post-colonial constitutional systems--like the United States--feature discussions of originalism.


1 comment:

  1. A discussion of constitutional originalism needs to begin with establishing a theory of constitutional design. I have begun to do that with the article Social Contract and Constitutional Republics in which I identify constitutions of nature, society, and the state, that are superior to (written) constitutions of government. Any discussion of original meaning, intent, or understanding that does not examine fundamental principles will likely get embroiled in linguistic controversy.

    For example, some principles of proper design for written constitution of government include:

    1. It needs to specify certain structures, procedures, rights, powers, and duties.

    2. Power should be divided in ways that enable necessary action while requiring deliberation that respects the rights of individuals and minorities.

    3. It should contain no entitlements to a sufficiency of scarce resources.

    4. The only rights it should recognize are immunities against the exercise of powers. That is, restrictions on the exercise of powers. Conversely, delegations of powers are restrictions on immunities (rights).

    5. Every right must have at least one remedy that is accessible to ordinary people at a reasonable cost.

    6. Key decisions that might be unduly influenced by special interests should be made by persons selected by some kind of sortition process, that is, randomly. This is espercially important of judges and juries.

    7. It must recognize two key rights: the right to a presumption of nonauthority, and a right to the means to supervise official activity.

    I could go on, but others can add to this.


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