At Prawfsblawg, Paul Horwitz: Where is the Comparativism in Criticisms (or Defenses) of Originalism? From the introduction:
The New York Times this past weekend ran an interesting story about the status of foreign judges who sit on the high courts of other nations, noting that it is "a curious phenomenon among Pacific island nations" but also occurs elsewhere, including "Hong Kong, the Caribbean, Africa and small European nations." Canadians, and I am still one, may be familiar with this phenomenon because of controversy over the role of its former Chief Justice, Beverley McLachlin, who insisted on staying on as a high court judge in Hong Kong despite the resignation of a couple other foreign judges, arguing that that court is still independent of interference from the Chinese government. And I recently heard an interesting talk about the personnel of the U.S. Virgin Islands courts, who often come from neighboring islands and specifically from Puerto Rico. But for the most part I cannot say I had heard or thought much about the phenomenon of "foreign judges on constitutional courts."
The general subject is surely interesting, as is the article's focus on those judges' unsteady status given the domestic politics of those nations. But what struck me the most was this passage, relying on an interview with Dr. Anna Dziedzic of Melbourne Law School:
Aware of their position as outsiders, foreign judges tend to focus on interpreting the text of a country’s constitution based on what they see as the authors’ original intent, which makes them less likely to make decisions that create social change, Dr. Dziedzic said.
Obviously this is interesting in any number of ways, not least because it offers a justification for originalism as a method of constitutional interpretation that is consistent with one or two main strands of justification for originalism: that it is less socially disruptive, and in particular–appearing here in a particularly salient context–that it leaves potentially socially disruptive changes to political rather than judicial actors. And it is interesting because that justification is pragmatic and institutional rather than relying on a theory of authority or of what is necessary for proper textual interpretation.
But what is most interesting about it is that, like any constitutional law professor, I have read the usual leading or popular criticisms (and defenses) of originalism–and I had no idea, or none that I can recall, that this phenomenon existed. . .
This opening leads to the main point of the post, which is that critics and defenders of originalism (with a few prominent exceptions) tend to focus on the U.S. without much attention to comparative sources.
At this blog we are always on the lookout for comparative originalism, but I agree it is an understudied topic.
(Via How Appealing).
Posted at 6:04 AM