The myth and the reality of American constitutional exceptionalism.

AuthorGardbaum, Stephen

This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional rights resulting in their lesser reach into private conduct. Third, the U.S. Constitution is exclusively a charter of negative rights and so rejects the types of positive constitutional rights, including social and economic rights, that many other modern constitutions recognize.

The thesis of the Article is that while the conventional wisdom is largely correct about American exceptionalism regarding the contemporary content of a few specific rights, it is largely wrong regarding the general structure of constitutional rights. Once labels and assumptions are set aside, I show that on each of the three identified structural issues, far from occupying a relatively extreme and lone position as is generally thought, the U.S. approach is actually well within the contemporary global constitutional mainstream. Debunking the myth of American structural exceptionalism matters for several important and timely reasons. These include undermining one prominent argument against the federal courts using foreign constitutional decisions and also the idea that there are distinctive threshold barriers in the United States against judicial implication of a few social and economic rights.

TABLE OF CONTENTS INTRODUCTION I. SUBSTANTIVE EXCEPTIONALISM A. The Text B. Freedom of Speech and Expression C. Religion D. Guns, Jobs, and Scaffolds E. Constitutional Interpretation II. THE AMERICAN VERSUS THE EUROPEAN MODEL OF JUDICIAL REVIEW III. CONCEPTIONS OF CONSTITUTIONAL RIGHTS AND THEIR LIMITS A. The Weight of Constitutional Rights Claims B. The Methodology of Constitutional Rights Claims 1. General Styles of Reasoning 2. A One-Step or Two-Step Approach? IV. THE STATE ACTION DOCTRINE AND HORIZONTAL EFFECT A. The Comparative Position of the United States B. The Surprising Role of the State Action Doctrine V. NEGATIVE AND POSITIVE CONSTITUTIONAL RIGHTS A. Social and Economic Rights B. Constitutional Rights to Protection CONCLUSION: WHAT'S AT STAKE? INTRODUCTION

The familiar notion of American exceptionalism (1)--that, in many spheres of activity, the United States does things in a qualitatively different way than other developed countries--is shared by Americans ("only in America") and non-Americans alike. (2) Although there is, perhaps, broad consensus on the list of differences, there is less agreement between internal and external viewpoints on their explanations, and still less on the underlying normative assessment attached to the entire phenomenon. While Americans tend to see these differences as a badge of honor, reflecting the vigor and boldness of the new world versus the old, many non-Americans like to view them, if not quite as a badge of shame, as a badge of immaturity, cultural inferiority, or lack of sophistication.

Depending on one's perspective, the standard list of differences includes economic systems (free market capitalism versus a mixed economy), political traditions (U.S. antigovernmentalism, top elective offices open to those with little or no political experience, and the absence of both a strong socialist movement (3) and a professional, high-level civil service), work ethics and culture, moral and personal values, the contemporary roles of religion and extent of religious belief, attachment to firearms, unique team sports, senses of humor, and forms of self-presentation. The explanations of these differences are, of course, legion and much disputed, but they include the United States' newness, existence and status as the product of the first successful colonial revolution, geography, political isolation and isolationism, a long period of buoyant economic self-sufficiency, and demographics as a heterogeneous and non-organic immigrant society. (4) To a greater or lesser degree, the United States seems to have evolved differently, like a giant Galapagos, or better yet, started out as a political-economic mutation of the species.

There is a parallel view, widespread among both American and comparative legal scholars, that the list of differences also includes constitutional law. (5) Prior to 1945, the United States was unequivocally exceptional in this regard and, by any standard, far more exceptional than it is now. It was then one of the very few countries with a written constitution that (1) included a bill of rights, (2) gave the constitution, including the bill of rights, the status of the supreme law of the land, (3) entrenched it against amendment or repeal by ordinary legislative vote, and (4) enforced it by the power of judicial review. Since 1945, however, the developed world in particular has converged on these constitutional fundamentals to such an extent that countries which continue to reject one or all of them--such as the United Kingdom, the Netherlands, New Zealand, or Australia (6)--are now truly exceptional.

Nonetheless, even within the common framework of these modern constitutional fundamentals, there is still a pervasive sense that the United States remains broadly exceptional or different, even if not as exceptional as before 1945. That is to say, such differences are in some meaningful sense general, systemic, or qualitative in nature and not merely limited to the type of particular, specific, or narrow differences that inevitably exist between the constitutional laws of any two or more countries. There are, if you will, one or more macro-differences that are more than the sum of ordinary, expected micro-differences among constitutional systems. In a word, American constitutional law is still perceived as different from all other constitutional laws. And yet, there is a surprising paucity of scholarship that actually focuses specifically on--sets itself the goal of--identifying, exploring, and evaluating this alleged fact of general American constitutional exceptionalism, (7) as distinct from (1) largely assuming it in passing or as the premise of some other argument or (2) focusing on an individual part of it. (8) So in this Article, I seek to take this more systemic or holistic view and explore whether this sense is an accurate one--whether or to what extent any such differences that exist justify the overall conception of American constitutional law as exceptional in some basic or fundamental sense.

Immediately, however, I must make explicit a limit on the comprehensive nature of my analysis. In what follows, I will focus on that part of constitutional law dealing with the protection of rights, as distinct from the allocation of powers between the various branches and levels of government: federalism and separation of powers. The reason for this limitation of scope is clearly not that these areas hold no interest or importance in themselves, nor that there are no significant similarities or differences between federalism and separation of powers in the United States and in other countries. (9) Apart from space, there are two reasons. First, protection of fundamental or human rights has been the central driving force behind the convergence on constitutional fundamentals since 1945. Because this goal has defined--indeed, created--constitutional law in the modern world, it is here too that claims of exceptionalism must be anchored and explored. Second, this anchoring at least has happened, for it is very widely believed that what primarily distinguishes U.S. constitutional law from all others is its exceptional "rights tradition." (10)

Within this general focus on its constitutional rights jurisprudence, there are two dimensions to the perceived exceptionalism of the United States. The first is the substance or content of constitutional rights: what particular rights exist. The second is the structure of constitutional rights. This structure is the underlying framework--set of concepts, principles, doctrines, and institutions--that applies to, organizes, and characterizes constitutional rights jurisprudence as a whole. I think it is fair to say that there is a substantial body of opinion inside and outside the United States that views its rights tradition as exceptional or highly distinctive in both respects."

As far as the substance of constitutional rights is concerned, the claim of exceptionalism focuses primarily on two well-known features of American constitutional law. First is the text. Its age and many correspondingly anachronistic concerns (state militias, quartering of soldiers) and omissions (gender equality), its brevity, its comparatively few enumerated rights, the vagueness of such central enumerated rights as due process and equal protection, and the absence of any express limits on rights, all stand in marked contrast to such paradigmatic post-1945, rights-protecting constitutions as the Basic Law of the Federal Republic of Germany (1949), Canada's Charter of Fundamental Rights and Freedoms (1982), and South Africa's Final Constitution (1996). Second is the unusually high value attributed to free speech and related rights, and the corresponding lower priority (or outright rejection) of competing rights or values, such as reputation, privacy, the individual and/or collective harm caused by certain types of speech, and access by the electorate to a full range of political views. (12)

Beyond these two major perceived differences concerning the substance of rights, there are a few additional...

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