This chapter reflects on whether and how large-N empirical studies can help our understanding of constitutional identity. It argues that although we cannot simply count and measure many aspects of constitutional identity, empirical analysis can help us better understand the concept and offers some practical suggestions for how it can do so. Next, it presents original data from nationally representative surveys conducted in five countries (the United States, Japan, China, South Korea, and Taiwan) and analyzes respondents’ responses to whether they feel represented by the constitution. The main finding from this exercise is that respondents who are older, male, higher-educated and have high incomes feel more represented than younger, female, lower-educated, and low-income respondents. In essence, groups that are relatively well off in society believe that their values and interests are better represented by the constitution than those who are less well off. While it does not directly tell us what the constitution’s identity is, these data do tell us something about the nature of the relationship between the constitution and those governed by it. Notably, they are consistent with accounts that suggest that constitutions reflect elite interests.

This chapter builds upon Gary Jacobsohn’s work conceptualizing constitutional identity as characterized by contestations, rather than consensus. I argue that once we abandon the mythical, imagined creature called ‘We, the people’, we find a society that is far less cohesive and, often, far less agreed or agreeable about certain fundamental ideas. Within this realistic view of society, constitutional disharmonies and contestations make more sense. This chapter drills down on how these constitutional disharmonies and contestations can be understood as competing claims about constitutional identity. I look at the modalities of disharmonies and the narratives that constitutional actors employ in relation to ‘constitutional identity’ and identify two modes of argumentation that challenge extant claims about constitutional identity: ‘constitutional mis-identity’ and ‘constitutional dis-identity’. These two modes of argumentation help illustrate the dynamism of this contestation over constitutional identity. Through a case study of the state-religion contestations within two seemingly divergent constitutional systems, that is, Malaysia and the United States, I show how the framework of dis-identity and mis-identity allows us to better parse through the different forms of contestations over the centrality of religion in their respective constitutional identity.

Gary Jacobsohn’s work on constitutional identity was an early exemplar of constitutional theory, testing and refining broad theoretical claims against a deep analysis of constitutional developments in diverse constitutional systems. One aspect of Jacobsohn’s rich and multi-textured theory is the claim that constitutional identity constrains amendment powers. This chapter explores that claim through the lens of the two seminal Irish cases with which Jacobsohn engages. These cases, while rejecting unamendability, illustrate Jacobsohn’s central distinction between generic constitutional identity and particular constitutional identity. The chapter argues that while Jacobsohn is correct to claim that generic constitutional identity – conformity to the moral values of constitutionalism – constrains constitutional amendment, it is problematic to assign moral salience to a country’s distinctive constitutional identity. The chapter interprets Jacobsohn’s particular constitutional identity not as a substantive constraint on amendment but rather as an argumentative frame for debate about the legitimacy of amendments. This argumentative frame, however, lacks a sound normative basis and encourages an excessive focus on the constitutional past, diminishing the potential of constitutional amendment as a site of democratic deliberation.

This chapter examines the appointment of foreign judges through the lens of political contestation and potential judicial interference in Botswana, Lesotho and Eswatini. It first interrogates why the appointment of foreign judges continued after domestic pipelines of judges had increased. Adopting a regime-based approach, the chapter first argues that the continued appointment of foreign judges beyond functional necessity is a form of strategic policy drift, because it does not require a new policy and it may be couched in positive or populist terms. Second, this chapter examines the timing of the pivot away from the appointment of foreign judges in Botswana and Eswatini. It shows that judicial leadership combined with local demand plays an important role in the timing of change, but that the localisation of appointments to apex courts of appeal, without reform of the appointment process itself, provides democratic window dressing for hegemonic regimes. The rhetoric around citizen-based localisation (Botswana) or racially-based Africanisation (Eswatini) has a populist flavour which may provide cover for varying degrees of autocratic behaviours.

This chapter provides an introduction and overview to the idea of the collaborative constitution, sketching out the central claim that protecting rights is a collaborative enterprise between all three branches of government, where they each play distinct roles, whilst working together in constitutional partnership. This Introduction also clarifies the constitutional methodology employed in the book, namely, a methodology which connects theory with practice, and analyses the UK constitutional order in comparative context.

This chapter considers thematic concerns addressed by some of the authors in the volume, from the perspective of those in the study of Hinduism and constitutional law. The focus is on three chapters in particular: Mark Nathan’s analysis of monasticism and celibacy in Korea; Richard Whitecross’ reflections on dual sovereignty in Bhutan; and Krishantha Fedricks’ writing on language ideology in Sri Lanka.

In this chapter, the author offers a comparative outlook on whether and how we might understand the act of “amending” America’s unwritten Constitution. Drawing upon examples from the United States and the United Kingdom, the author argues that the unwritten rule for amending an unwritten constitution is “Just Do It.” Unwritten constitutions are amended when relevant political actors simply ignore existing conventions or taken-for-granted propositions about the constitutional order. But, for such an action to lead to an “amendment,” the change must “stick” – subsequent actors must either treat the prior convention as now merely optional or, more strongly, treat the new practice as a new convention. One condition for “sticking,” he explains, is that those who breach the prior convention offer an explanation for the breach that (a) seems reasonable at the moment of breach and that (b) identifies a large enough class of similar occasions for breach in which departing from the convention would also seem reasonable. Such explanations provide the basis for the sense of obligation (or, sometimes, the sense of “optionality”) that characterizes elements of unwritten constitutions.

Comparative constitutional law has experienced a resurgence in recent decades. Whereas two decades ago the field was focused on the North Atlantic and the issue of rights adjudication, there now exists a vibrant literature on many different jurisdictions and issues, covering a wide field of global constitutional arrangements. This chapter will review the history and rapid progress of the field of Constitutionalism in Context. The most encouraging and visible manifestations of this progress include a shift away from Eurocentrism and the traditional focus on apex courts. It will also identify lacunae in the existing literature and questions that would benefit from further exploration. This essay will conclude by proposing a next-generation research agenda for the field.

Despite the tremendous renaissance of comparative constitutional law, the comparative aspect of the enterprise, as a method and a project, remains under-theorized and imprecise. Methodological self-awareness has not been one of the field’s strengths. In comparative constitutional law (and Constitutionalism in Context more generally) the term “comparative” is often used indiscriminately to describe what, in fact, are several different types of scholarship, each with its own meanings, aims and purposes. What is more, various vocational, jurisprudential, academic, and scientific stakeholders involved in practicing the art of constitutional comparison. This chapter will explore the various types, aims and methodologies deployed in exploring constitutional phenomena comparatively across time and space. In so doing, it will identify some gaps in the field’s contemporary methodological matrix and suggest ways in which these deficiencies may be addressed and overcome.

This introductory chapter uses the framework of pedagogical choice to articulate and compare competing visions of how the field should be conceptualized and taught. Part 2 explicates the practical challenge that renders pedagogy in the field of comparative constitutional law unusually difficult – namely, the problem of capacity. Part 3 articulates and evaluates five competing models of pedagogy, which might be called instrumentalism, tourism, immersion, abstraction, and representation. Each model is defined by a distinctive set of pedagogical goals and a practical strategy for pursuing those goals in the face of the problem of capacity. Part 4 uses the contents of Constitutionalism in Context to illustrate how the representation model might be implemented in textbook form, and what intellectual and pedagogical benefits might result. Many of the representation model’s unique benefits stem from the fact that it invites and even demands that we explore what might be called boundary cases – namely, extreme, novel, or otherwise nonstandard cases that require us to test or apply familiar concepts and strategies in unfamiliar ways. Part 5 concludes by arguing that the challenges of teaching comparative constitutional law call for pedagogical pluralism.

This paper contrasts two different perspective on foreign relations law, one that developed in liberal democracies at the centre of geopolitical gravity, and one shaped by the postcolonial contexts and historical experiences of countries at the periphery of the global political economy. It argues that taking into account the peripheral perspective not only pluralizes comparative foreign relations law and thus makes it more representative. It might also help understand contemporary transformations of foreign relations law in Western liberal democracies, as these legal orders become less centric and more peripheral in a new multipolar geopolitical context. The contrasts between the different legal paradigms come into sharp relief in the legal treatment of transnational corporations, whose socio-legal reality questions categorical distinctions between international and national, political and economic, state and individual.

Previous chapters have focused primarily on factual issues bearing on theories of constitutional interpretation. This chapter turns toward perceptions as it explores how both elite and popular opinion influence the justices’ perspectives on interpretive issues. These perception issues fall generally into the Court’s need for what Richard Fallon has called “sociological legitimacy,” along with the individual justices’ views of their “fidelity to role,” as described by Lawrence Lessig. The specific issues addressed are aspects of what are sometimes considered “conventional wisdom,” and they turn out not to be true. The first is the notion that any interpretive approach based on the Framers’ understandings is so far out of step with the contemporary thinking in the international community of judges and scholars that it represents little more than a peculiarly American form of “ancestor worship,” and the second is the belief that calling on the Framers’ understandings is principally a tool for advancing conservative social and political views.

This Chapter questions whether there is a “doctrine” of proportionality. By “doctrine,” a way of dealing with problems across a range of problems. Using the country studies presented in this book, the chapter identifies a number of reasons for thinking that there is – and perhaps cannot be – such a doctrine. First, the components of proportionality are elements in any reasoned explanation for an outcome in a constitutional case; as a result, “hints” of proportionality analysis in cases not using its structured version may not in fact illustrate proportionality analysis at all. Second, courts allocate different analytic methods to different domains; as a result, proportionality analysis and categorical analysis co-exist in the system as a whole. Third, something like a categorical analysis is likely to appear at the “less restrictive alternatives” stage of proportionality analysis. Finally, even systems committed to proportionality analysis might find themselves eventually adopting some categorical rules as a means of achieving better results overall than proportionality would produce directly. The Chapter concludes with some observations about the role that structural, educational, and political contexts play in the choice between categorical and proportionality analysis.