Introduction

The Constitution of the United States provided the inspiration for the rights-protecting constitutions of liberal democracies throughout the world. Yet the constitutional systems developed or newly established since the Second World War now differ from their US precursor. These systems have come to share a sophisticated legal paradigm that facilitates – indeed, perhaps necessitates – comparative engagement. The constitutional jurisprudence of the United States stands apart from this shared legal paradigm. Recently, prominent US judges and politicians have crossed swords on the issue of comparative reflection. This debate raises an important question: how should US scholars and judges define the relationship of their Constitution to the constitutional systems of liberal democracies that operate within the postwar constitutional paradigm?

To broach this subject one must consider the rancorous history of US constitutionalism over the last half century and beyond. Two competing constitutional conceptions vie for supremacy, each with its own view of fundamental principles, institutional role, and comparative engagement. A rights-based conception favours comparative engagement, regarding other constitutional systems as repositories of methodological direction, illuminating example, and theoretical reflection. The other, an indigenous, historically fixed conception, regards such engagement as unnecessary and perhaps even subversive.

The rights-based conception was dominant during the era of the Warren Court.