The migration of constitutional rules throughout jurisdictions is without doubt one of the imperative good points of up to date constitutional perform. The expanding use of comparative jurisprudence in examining constitutions is one instance of this. during this 2007 booklet, prime figures within the learn of comparative constitutionalism and comparative constitutional politics from North the USA, Europe and Australia talk about the dynamic procedures wherein constitutional platforms effect one another. They discover easy methodological questions that have to date bought little recognition, and think about the complicated dating among nationwide and supranational constitutionalism—an factor of substantial modern curiosity in Europe. The migration of constitutional rules is mentioned from quite a few methodological perspectives—comparative legislation, comparative politics, and cultural stories of law—and individuals draw on case-studies from a wide selection of jurisdictions: Australia, Hungary, India, South Africa, the uk, the U.S., and Canada.
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In other words, Weinrib provides an empirical account to back up Allan’s narrative of constitutional convergence. While the dominant view is that the postwar model is totally foreign to the US experience, Weinrib argues that the rights-based conception has a pedigree in the decisions of the Warren Court, which themselves influenced constitutional courts in other countries. Recent debates over reference to comparative materials have been unnecessarily acrimonious as a result of the view that there are two competing conceptions of constitutionalism, only one with roots in US legal and political experience.
The goal of this volume is to tackle that task. What is distinctive is how we address this challenge. Alford proceeds from established theories of constitutional interpretation in the US constitutional order, and attempts fit the increasing comparative engagement by the US Supreme Court within those theories. This is a top-down approach which takes existing ways of thinking about constitutional practice as a given. By contrast, we begin from the bottom up. The task of the constitutional theorist is to identify the reasons offered by courts and other legal actors for the recourse to comparative materials, and to weave those justifications into coherent accounts.
As a case study, she examines the impact of the Canadian jurisprudence on same sex marriage in the United States. Cossman agrees with Weinrib that the judgments will have little or no direct impact on US legal developments because of US exceptionalism. She argues, however, that the denial by US courts of the validity of Canadian marriages on US soil constitutes itself a form, albeit a thin one, of recognition: if same sex marriage is valid in Canada, it is no 30 sujit choudhry longer unthinkable in the United States.