Rivka Weill (Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; University of Chicago Law School; Yale Law School) has posted Constitutionalism Reborn on SSRN. Here is the abstract:
As Conservatives have come to dominate the US Supreme Court, originalist interpretation methods will determine constitutional disputes. While the Court rejects the use of comparative constitutional law to interpret the Constitution, even its Conservative members accept the legitimacy of resorting to British sources, if the language of the Constitution was derived from the UK. This practice of reliance on British precedents seems natural yet perplexing. It is natural because the US seceded from the UK. It is perplexing since the US constitutional revolution stands for rejection of the British model of parliamentary sovereignty.
This Article intends to redefine the relationship between the US and UK constitutional models. While the literature perceives the two as polar-opposites, I suggest that there is, in fact, a common Anglo-American constitutional model, which has been informing the US’ character since its founding. It is not that we misunderstood the American model of popular sovereignty and supreme Constitution. Rather, we did not realize that parallel developments were taking place in the UK. The political actors on both sides of the pond were aware of this reality, but the jurisprudence missed it. Shifting the paradigm and accepting the existence of this common model will enable us to grapple with the most burning current dilemmas of our time on both sides of the Atlantic. It lends new legitimacy to examining British sources to better understand American constitutional law, even if the textual provision per se is not attributable to the UK. We may now study how the common model intended the dynamics between the different constitutional actors to play out. While the US felt powerless to deal with a President who does not care for constitutional norms, the Article reveals how the model designated enforcement mechanisms for constitutional norms/conventions, including court packing and judicial review. British debates on reforming an obstructionist second chamber resonate with current American discourse on reforming the US Supreme Court and the Senate. Both American institutions were modeled after the House of Lords. The Article develops the two types of court packing justified in the US under the common model to remedy breach of constitutional norms. It further discusses the inevitability of filibuster reform. Similarly, while Brexit is incomprehensible in a parliamentary sovereignty system, Parliament’s reluctant adherence to the 2016 “consultative” referendum’s results is a natural outgrowth of the common Anglo-American rule of the People.
Recommended. I think it is important to distinguish the specific ways in which British sources are relevant to determination of the original public meaning of the constitutional text from other uses of British practice. From an originalist perspective, we aim to recover the communicative content of the constitutional text--that is the aim of constitutional interpretation. That task involves both semantics (e.g., the meaning of words and phrases) and pragmatics, including contextual disambiguation and contextual enrichment. American English and British English were not identical in 1787, but there was substantial overlap and with respect to some technical terms, the best evidence of meaning may be usage by English lawyers and judges. Moreover, English practices may be relevant to pragmatic enrichment, because English practices would be part of the background knowledge that forms the publicly accessible context of constitutional communication. As I understand the Article, it does not employ the framework of contemporary public meaning originalism.
