Brinton Lucas has posted Structural Exceptionalism and Comparative Constitutional Law (Virginia Law Review, Vol. 96, p. 1965, 2010) on SSRN. Here is the abstract:
For over the past two decades, there has been an ongoing debate over whether the Supreme Court should rely on comparative constitutional law when interpreting the U.S. Constitution. This Note offers an exceptionalist critique of the practice. Specifically, it argues that the structures of the U.S. Constitution are ill-equipped to handle the constitutional law of other nations with different conceptions of the judicial role. The U.S. Constitution is unusual among the constitutions of the world in its reflection of the belief that the judicial branch should be confined to law rather than policy, a conviction manifested in the relative absence of institutional constraints on the federal judiciary. By contrast, the architects of foreign constitutions expected some judicial policy-making and consequently included democratic controls over the judiciary in their founding charters. This Note contends that when the Supreme Court draws on the constitutional law of these countries without their accompanying safeguards, it risks that the reasoning of foreign judges will operate unconstrained by the checks they took for granted and lead to unintended costs for American society.
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