Does Constitutional Scholarship Travel?

The connection between constitutional theory and comparative constitutional law is under-theorized - and this collection helps fill that gap. In responding to the many excellent contributions it contains, I will offer several thoughts about: (i) silent constitutional comparison, (ii) the mix of small n and large n approach to comparison and their relationship to constitutional theorizing, and (iii) the gender of constitutional theorizing as a practice.

In the United States the best accounts of constitutional theory, such as Richard Fallon's and Phillip Bobbitt's, are pluralist, in the sense that all modalities (in Bobbitt's terms) are permissible in judicial and other forms of constitutional practice. I have argued against excessive concern about methodology in comparative constitutional law, in favor of a pragmatic pluralism. The book on which we are commenting can be understood as an exemplar of pluralism in constitutional theory, with some authors [some to be discussed a bit individually] defending specific methodological approaches, others defending pluralism. That seems to me the most intellectually defensible stance with respect to constitutional theory generally: individual commitments to specific approaches, eclecticism or pluralism for the field as a whole.

Constitutional theory is still on a quest of self-definition as a field of inquiry and consequently is ripe for methodological reassessment. This paper explores the role of comparison in constitutional theorising. Insofar as it finds itself in close conversation with disciplines such as political and legal theory, constitutional theory has developed hybrid methodological tools. It often finds it difficult to occupy the space between ideal and non-ideal theory. It may employ tools such as analogy and extrapolation, but frequently decontextualises or generalises from cherry picked or ‘usual suspect‘ case studies. The rich methodological advances in cognate fields such as comparative constitutional law and comparative politics offer insights into how constitutional theory can embrace contextualism and robust comparison. Our aim should be to avoid a ‘view from nowhere‘ approach that mistakes for objectivity what are ultimately contextual impoverishment and comparative blindness.

In “Slaying the Misshapen Monster“ we proposed: (a) an account of how constitutional facts are memorialised, elevated and axiomatised in the process of constitutional world-making - and (b) a taxonomy of constitutional cosmologies resulting from such processes. In this paper we use our scheme to study the impact travel across space and time has on constitutional theories. We argue that travel places constitutional theory in a new intellectual and institutional 'terroir', whose conditions and needs reshape the significance of the constitutional facts the theory memorialises and the constitutional cosmology it enshrines. Although constitutional theorists rarely recognise this reshaping, we demonstrate through an analysis of superficially attractive aspects of recent work in constitutional theory that it has significant implications for the order these theories would produce. We conclude by calling for a greater sensitivity to context and a more heuristic approach to constitutional theory.

In recent times, a growing attention in comparative constitutional studies is being devoted to the notion of constitutional imagination and its capacity to animate constitutional orders. Usually, constitutional imagination is presented as an achievement of symbolic representation. But how to compare different constitutional imaginations? The paper tries to address this question by introducing a first qualifying aspect: the material context in which imagination is embedded. The main aim is to assess how far a disembodied constitutional imagination can travel from one jurisdiction to another. In particular, the focus will be on the old question of the relation between the material organisation of society and the formation of a constitutional imagination. The paper does not intend to propose a solution to this question, but to start working on ways to articulate the relation between materiality and imagination.