June 1, 2024

Pessoptimistic Constitutional Analysis

NBNathan J. BrownCarnegie Endowment for International Peace

Key Points

Comparative constitutional analysis shows a need for broader case comparisons beyond North America and Europe, underscoring a gap in the field.
Judicial review has emerged as a global norm, but analysis still largely references canonical cases from a narrow geographical perspective.
An investigation of adjudication practices reveals that traditional scholarship may overlook diverse international practices.
The shift towards global judicial review calls for an expansion in the scope of constitutional studies to include varied regional contexts.

Abstract

Traditionally, comparative constitutional analysis has been anything but truly comparative—or, rather, the comparisons drawn by scholars were limited to a small number of canonical cases, generally in North America and Europe. Older scholarship focused on structure and text; it began to branch out into adjudication as judicial review of the constitutionality of legislation became a global norm rather than an exception in the second half of the twentieth century.

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