Constitutional Engagement in a Transnational EraPDF|Epub|txt|kindle电子书版本网盘下载

Constitutional Engagement in a Transnational EraPDF格式电子书版下载

注意：本站所有压缩包均有解压码： 点击下载压缩包解压工具

INTRODUCTION: CONSTITUTIONAL COSMOLOGY—CONVERGENCE, RESISTANCE, AND ENGAGEMENT1

Transnationalism and Constitutional Review1

The Distinctiveness of Constitutions as Law3

The Functions of Judicial Review3

An Expanding Universe of Law5

Historic Relationships of Constitutions to a Global Audience6

Three Postures toward the Transnational8

Transnational Sources, Foreign and International10

Engagement and Constitutional Law in the United States11

Engagement in a Pluralist Global Context: Transnational Constitutionalism?14

CHAPTER 1: RESISTING THE TRANSNATIONAL17

A.Sources of Resistance18

Constitutions as Self-Constituting and Self-Expressive18

Interpretive Theory: Originalism, Contractarianism, and Popular Sovereignty20

Interpretive Theory: Representation-Reinforcement and “Majoritarianism”22

Law as Autochthonous Identity24

Judging under Constraints: Sources and Discretion, Expertise, Opportunity Costs, and Comparison26

Political Resistance: Nation-Building, Western Dominance, and Cultural Exceptionalism27

Political Resistance and Principled Substantive Disagreement28

The Political Economy of Transnationalism and Constitutional Interpretation29

Cultural Elites, Self-Interested Judges, and the Politics of Citation30

B.Jurisprudential Assumptions30

Positivism30

Organic Conceptions of Law31

Will, Organicity, and Exceptionalism32

C.Manifestations of Resistance: Silence, Indifference, and Active Resistance32

Articulated Resistance Inside the United States33

Silent Resistance or Indifference34

Articulated Resistance Outside the United States34

Ambivalent Resistance35

Resistance in Specific Settings—Foreign Investment, Control of Natural Resources, and Supranational Regimes35

D.Resistance, Differentiation, and the Expressive Function of Constitutions38

CHAPTER 2: CONVERGENCE WITH THE TRANSNATIONAL39

A.Influences toward Postures of Convergence40

Of Archetypes, Incentives, and Supranational Courts and Organizations40

Convergence or Fragmentation?41

Convergence in Law or As Interpretive Posture42

B.Convergence Postures and Their Normative or Jurisprudential Foundations43

Universal Moral Rights45

Epistemic Arguments47

Interpretive Discretion and Legitimacy48

Arguments from Judges’ Roles49

Support for the International Legal System49

Checks against Horrific Conduct or Backsliding from Democracy51

Positive Textualist Arguments52

C.Doctrinal Implications and Manifestations54

Different Presumptions?54

Extraterritorial Effects55

Margins of Appreciation57

Proportionality, Balancing, and Means-End Analysis60

Scope of Its Use60

Proportionality Inherent in Constitutional Review?61

Divergent Predictions63

Dualism/Monism and Convergence64

D.Interpretive Approaches and Convergence Postures65

Multiple Interpretive Roots65

The Necessary Incompleteness of Convergence as Interpretive Approach66

CHAPTER 3: ENGAGEMENT WITH THE TRANSNATIONAL71

A.Engagement: Deliberative and Relational Modes73

Deliberative Engagement: Australia, the United States, Canada,and Japan73

Expressive and Affiliative Functions of Engagement77

Relational Engagement: South Africa and Elsewhere78

B.Normative or Jurisprudential Foundations81

Positive law81

Pragmatism or Consequentialism81

Law as Inquiry82

Autopoiesis84

Process and Justification84

Constitutional Law as Mediating the Domestic and the Global85

C.Doctrinal or Interpretive Manifestations86

Texts That Call For or Invite Comparison—Limitations Clauses and Other Examples86

Multi-Valenced Interpretation88

The Judicial Role, Constitutionalism, and Interpretive Approaches90

Legal Hierarchies and Multi-Vocal Constitutionalism in Europe91

D.Positive Influences95

Globalization, Transnational Disputes, and Plural Legal Orders95

Past Colonialism and the Commonwealth Nations96

Increases in Comparative Legal Knowledge97

Institutional and Strategic Concerns, Mandatory Consideration as Soft Monitoring97

Independent Judging Gone Global: Judicial Networks and the Ideology of Judging98

The Idea of Independent Judging in International and Constitutional Law98

Judging as an Activity with Supranational Elements99

Autonomy and judicial control of interpretive sources99

Human rights law’s protection of judicial independence100

Independence of judges from each other100

Judicial Networks100

Courts Constructing Influence?101

CHAPTER 4: CONSTITUTIONAL ADJUDICATION IN THE U.S.SUPREME COURT: WHY ENGAGE THE TRANSNATIONAL?103

A.Deliberative Engagement: An Internal Perspective103

Reflective Comparisons and Expressive Aspects of Interpretation in U.S.Constitutional History104

Freedom and Equality105

Due Process and Criminal Procedure106

Executive Power106

Citizenship and Immigration107

Cruel and Unusual Punishment108

Overlapping Normative Commitments and Constitutional Justice Seen from Outside108

Implementing the Constitution: Functionality and Doctrine110

Change, New Problems, Health and Safety Regulation111

Criminal Procedure111

Separation of Powers112

Federalism112

The Law of Nations in the Constitution113

Inevitability of Comparison, Multiple Perspectives, and Ethical Judging:Reflective Comparison and Impartiality114

B.Relational Engagement: Constitutional Symbiosis in a Globalizing Legal World117

Strategic or Institutional Goals, Weak State-Strong State Differences?118

Moral Obligations and Claims of Outsiders119

A Transnational Court?119

An Influential Court?120

Relational Constitutionalism and Minimal Cosmopolitanism?121

Judges and National Legitimacy in a Transnational Environment122

Judges as Diplomats?123

Diffuse Instrumentalism, Diffuse Legitimacy124

Jurisprudential Change and Constitutional Interdependence124

Permeable Boundaries124

Pluralism, Courts, and Constitutional Self-Defense125

Constitutional Coexistence and Interdependence128

CHAPTER 5: ENGAGEMENT, U.S.INTERPRETIVE THEORY, AND MULTIFUNCTIONAL CONSTITUTIONS133

A.Engagement and Leading Interpretive Approaches133

Text- or “Moment”-Focused Positivism, Originalism, and Intentionalism134

Purposivism135

Multi-Valenced （“Common Law”） Practice-Based Approaches136

B.Rejecting Resistance: Legitimate Interpretation in the United States139

Fear of Being Bound140

Originalism and Formalism140

Democracy, Self-Rule, and Sovereignty142

Interpretive License145

Separation of Powers, Federalism, and the Treaty Power145

National Ethos and the Perils of Pragmatic Comparative Inquiry147

Rule of Law, “Persuasive Authority,” and Judicial Discretion147

Expertise and Bounded Rationality150

Comparability Challenges151

Constitutional Situation Sense, Contextualized Judgment, and Socialization151

C.Questioning Convergence: Constitutions as Embodiments of National Distinctiveness and Plural Functions154

Compromise and Constraint in Constitutional Design155

Local Authorship and Universal Reason155

Textual, Institutional, and Practice-Based Distinctions156

Treaties, Presumptions, and Sub-Constitutional Implementation157

International Law and Interpretive Space158

Elusiveness of Goal158

CHAPTER 6: ENGAGING THE TRANSNATIONAL: A CONTEXTUAL FRAMEWORK161

A.Three Contextual Considerations162

The Nature of the Issue and of Domestic Sources of Interpretation162

Fifth Amendment Grand Jury Clause162

Establishment Clause163

Eighth Amendment163

Security and Liberty164

International Law as Embedded Element in Constitutional Terms165

Transnational Sources and “Open” Questions165

The Nature of the Transnational Source and its Proposed Use166

Authority and Institutional Setting: Courts and Legislatures167

Authority and Source of Law: International and Foreign Law168

International law as binding or potentially binding169

International law and questions of comparison170

International law as “part of our law”171

The limited scope of international law171

General, aspirational, or conflicted norms； clarity and enforceability172

Gravitational pull and seriousness among rule of law constitutional democracies173

Seriousness and cosmoskepticism: Breard, Sanchez-Llamas, and Medellin175

Comparability: Normative and Functional Concerns178

B.Fair Usage, Fair Process, and Recent Controversies183

Fair and Accurate Usage: Death Penalty and Gay Rights Cases184

Hate Speech and the Importance of National Context186

Fair-Mindedness and the Multi-Directionality of Transnational Law: The Exclusionary Rule187

Procedures for Gathering and Considering Transnational Legal Sources189

C.Institutional Constraints and Prudential Silences: Limits on Engagement?192

Lower Courts as well as Supreme Court?192

Prudential Noncitation, “Silent Dialogues,” and Internal and External Legitimacy193

CHAPTER 7: ENGAGEMENT, EQUALITY, AND OLDER CONSTITUTIONS197

A.Equality and Interpretation over Time: Federal Power to Redress Gender Inequality199

Reading the U.S.Constitution Holistically199

The Morrison Case: Federal Power and Gender Equality201

The Commerce Clause of the Original Constitution202

The Fourteenth Amendment205

Doctrinal Specificities and the Hibbs Case206

B.Citizenship and Gender: Nguyen206

C.Abortion, Reproductive Freedom, and Equality210

The Absence of Worldwide Consensus212

Health, Autonomy, Multiple Perspectives and Gonzales v.Carhart215

Social Rights, Social Reasons, Equality, and Abortion217

Liberty and Equality at Stake220

The Absence of a “Positive” State and the “Optionality” of Government Interests220

D.Optional But “Compelling” State Interests in U.S.Constitutional Law:Affirmative Action in the United States and India222

Constitutional Solidarity, Societal Discrimination, and Individualized Consideration223

Temporary Measures?224

Super-Classifications and Specially Subordinated Groups225

CHAPTER 8: CONSTITUTIONAL PARTICULARITIES, FEDERALISM, AND THE TRANSNATIONAL227

A.Federalism and the Limits of Interpretive Engagement227

Historically Contingent Compromises228

Interdependent Federal Balances229

No Transnational Archetype230

B.Federal Systems’ Varying Postures toward the Transnational232

Theoretical Tendencies?232

Federalism Tropes and the Transnational in the United States and Canada234

Constitutional Commonalities235

Distinctive Constitutional Histories and Federal Bargains237

Founding Divisions and Historic Momentum238

Age of Rights-Incorporating Texts239

Geopolitics240

Legal Culture: Rights and Negotiation, Written and Unwritten Constitutional Constraints240

Legal Culture and Legal Education242

C.Federal Systems, Constitutional Adjudication, and Transnational Sources of Law243

Secession244

Commerce, Criminal Law, and National Power245

Rights and Federalism248

Death Penalty and the Allocation of Criminal Jurisdiction248

Group Rights, Group Remedies, and Federal Compromises250

D.Toward Moderating Certainties about Federalism252

CHAPTER 9: CONSTITUTIONS AS MEDIATING INSTITUTIONS, TRANSNATIONAL CONSTITUTIONAL VALUES, AND ENGAGEMENT IN TWENTY-FIRST CENTURY CONSTITUTIONAL INTERPRETATION255

A.The Interdependence of Constitutional and International Law257

Recognition of States258

International Law and Domestic Constitutional Compliance259

Overlapping Subjects261

International Incentives for Domestic Constitutional Change261

Interlock and Overlap262

B.Boundaries and Transitions at the Intersection of International and Constitutional Law: Transnational Constitutional Values?262

Boundaries, Membership, and Secession263

Transitional and Transnational Constitutional Processes265

Federalism and the National/ International Border267

Risks of Transnational Constitutionalism: Law or Values?270

C.The Future: The Gravitational Force of the Transnational and the Range of Constitutional Responses273

Interdependence and Interpretation: Mediating the National and the Global273

Constitutional Interdependence, Transnational Legal Process,Acculturation, and Changing Threats275

Constitutional Diversity and the Mediating Role277

Increased Interactions, Litigation, and Technology278

Future Choices and the Enduring Significance of National Constitutions279

NOTES287

Table of Cases477

Index495