Scholarship@WashULaw

Document Type

Book Review

Language

English (en)

Publication Date

2011

Publication Title

American Journal of Comparative Law

Abstract

This essay reviews and critiques Vicki C. Jackson's book on constitutional engagement and comparative constitutional law.

Over the past decade, the debate over the use of foreign authority in interpreting the U.S. Constitution has fallen prey to an unfortunate “Crossfire” phenomenon, reminiscent of the old (and much maligned) CNN news commentary program. Serious discourse on this important issue has been obscured by an increasingly rancorous public debate in the news media, the blogosphere, and even before Congress. In this Crossfire debate, it seems, everyone must “choose up sides.” So-called “nationalists” deplore even most modest citations to foreign authority in constitutional interpretation, with at least one U.S. senator expressing the view that a judge’s citation to foreign authority constitutes an impeachable offense. So-called “internationalists,” for their part, simply cannot understand what all the fuss is about: they remain convinced that citation to foreign authority raises few real legitimacy concerns. The Crossfire nature of this debate seems to be grounded in at least two myths. The first is that there is no middle ground: the choice is a binary one in which American judges themselves must “choose up sides,” either entirely rejecting foreign and international law or importing it wholesale into their interpretive work. The second myth is that there is something uniquely American about this debate. Nationalists assert the self-constituting and (to borrow Professor Mark Tushnet’s term) expressivist nature of the U.S. Constitution: as Justice Scalia has written, “We must never forget that it is a Constitution for the United States of America that we are expounding.” Internationalists, for their part, decry such arguments as an unfortunate new form of American exceptionalism. Professor Vicki Jackson’s new book, Constitutional Engagement in a Transnational Era, explodes both myths. She reminds readers that there is nothing particularly exceptional about the American debate over foreign authority in constitutional interpretation.

Keywords

Comparative Law, International Law, Transnational Judicial Dialogue, Jackson, Constitutional Engagement, Constitutional Comparative Law

Publication Citation

Melissa A. Waters, Vicki C. Jackson, Constitutional Engagement in a Transnational Era, 59 Am. J. Comp. L. 602 (2011)

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