The Migration of Constitutional Ideas

The migration of constitutional ideas across jurisdictions is rapidly emerging as one of the central features of contemporary constitutional practice. The increasing use of comparative jurisprudence in interpreting constitutions is one example of this. In this book, leading figures in the study of comparative constitutionalism and comparative constitutional politics from North America, Europe and Australia discuss the dynamic processes whereby constitutional systems influence each other. They explore basic methodological questions which have thus far received little attention, and examine the complex relationship between national and supranational constitutionalism - an issue of considerable contemporary interest in Europe. The migration of constitutional ideas is discussed from a variety of methodological perspectives - comparative law, comparative politics, and cultural studies of law - and contributors draw on case-studies from a wide variety of jurisdictions: Australia, Hungary, India, South Africa, the United Kingdom, the United States, and Canada.

• Whereas existing works on 9/11 tend to focus on the responses of single jurisdictions, and at best suggest how the experiences of other jurisdictions ought to be drawn upon, this book attempts to link the myriad legal responses to 9/11 across a large number of jurisdictions to the study of the movement of constitutional ideas that has taken place • Draws on case studies from a wide variety of jurisdictions - Australia, Hungary, India, South Africa, the US, the UK and Canada - to illustrate how constitutional systems influence each other • Devotes several chapters to exploring basic methodological questions which have thus far received insufficient attention, and addresses these from a variety of methodological perspectives

1. Migration as a new metaphor in comparative constitutional law Sujit Choudhry; Part I. The Methodology of Comparativism: 2. On the blurred methodological matrix of comparative constitutional law Ran Hirschl; 3. Some reflections on method in comparative constitutional law Mark Tushnet; 4. The postwar paradigm and American exceptionalism Lorraine Weinrib; Part II. Convergence Toward a Liberal Democratic Model?: 5. Questioning the migration of constitutional ideas: rights, constitutionalism and the limits of convergence Jeff Goldsworthy; 6. Spreading liberal constitutionalism: an inquiry into the fate of free speech rights in new democracies Andras Sajo and Michel Rosenfeld; 7. Underlying principles and the migration of reasoning templates: a trans-systemic reading of the Québec Secession Reference Jean-François Gaudreault-Desbiens; 8. Migrating marriages and comparative constitutionalism Brenda Cossman; Part III. Comparative Constitutional Law, International Law and Transnational Governance: 9. Inimical to constitutional values: complex migrations of constitutional rights Mayo Moran; 10. Democratic constitutionalism encounters international law: terms of engagement Mattias Kumm; 11. Constitution or model treaty? Struggling over the interpretive authority of NAFTA David Schneiderman; 12. The migration of constitutional ideas and the migration of the constitutional idea: the case of the EU Neil Walker; Part IV. Comparative Constitutional Law in Action - Constitutionalism Post 9/11: 13. The migration of anti-constitutional ideas: the post-9/11 globalization of public law and the international state of emergency Kim Scheppele; 14. The post-9/11 migration of Britain\'s Terrorism Act 2000 Kent Roach; 15. Control systems and the migration of anomalies Oren Gross.

‘This superb volume will be widely read and cited - by comparative lawyers, international lawyers, scholars of socio-legal studies, and political scientists.’

– Michael Byers, Canada Research Chair in Global Politics and International Law, University of British Columbia

‘It has become a cliché to refer to globalization and the increasing international influences on domestic constitutional law; but clichés are not scholarship. The Migration of Constitutional Ideas brings together an outstanding collection of articles by international and interdisciplinary scholars who offer both greater conceptual clarity and much useful empirical data. No one interested in the topic can afford to ignore this book.’

– Sanford Levinson, University of Texas Law School and Department of Government; Co-editor of Constitutional Stupidities, Constitutional Tragedies (1998)

‘Under Sujit Choudhry\'s artful guidance, the contributors to The Migration of Constitutional Ideas have produced a remarkably coherent volume that will be indispensable to constitutional scholars and policymakers everywhere. The essays not only give a snapshot of the global state of constitutional thought today, they take on the hard normative questions of right and wrong that are so pressing as new constitutions are written and old ones put under pressure in the post 9/11 world. This is comparative law the way it was meant to be - with a keen eye for discerning the inner life of constitutional ideas on the move.’

– Noah Feldman, Professor of Law, New York University School of Law