The Limits of Constitutional Convergence

Abstract Globalization, some legal scholars suggest, is a force that makes increasing convergence among different countries' constitutions more or less inevitable. This Essay explores this hypothesis by analysing both the logic-and potential limits-to four different mechanisms of constitutional convergence: first, changes in global "superstructure"; second, comparative learning; third, international coercion; and fourth, global competition. For each mechanism, it shows, quite special conditions will in fact be required before global convergence is likely even at the level of legal policy. At a constitutional level, it further suggests, it will be even rarer for these mechanisms to create wholesale convergence. This also has direct implications for ongoing debates over the desirability of constitutional decision-makers seeking to engage in global learning or borrowing. I. INTRODUCTION In recent years, legal scholars have given increasing attention to the ways in which constitutional law in one country influences the development of constitutional law in another country. This scholarship has been driven in part by the high-profile, politically charged debate about whether the US Supreme Court's constitutional decisions should rely on foreign law. But the scholarship also addresses larger questions about the process of legal change and the relationship between national law and globalization. There are two positions in this debate. The first is that the constitutional law of one country is, or should be, largely independent of the constitutional law of other countries.3 The people or national political elites choose a constitutional law that meets their needs. This claim is sometimes made today about the US Constitution. The US Constitution changes through amendment or judicial construction that, with a few exceptions, is not influenced by constitutional developments elsewhere in the world. To be sure, all constitutions must start somewhere. The drafters of the US Constitution were influenced by British and Roman constitutional law, English common law, and constitutional theory from continental Europe. But in mature constitutional systems, foreign influence is muted.4 The second is that the constitutional law of one state inevitably influences, and should influence, constitutional law in other states, putting aside extreme cases - such as isolated countries like North Korea or failed states like Somalia. Constitutional systems are not hermetically sealed.' Judges and other relevant decision-makers seek inspiration in the constitutional developments of foreign countries, or, at least, cannot help but be influenced by what happens elsewhere. Scholars who take this position tend to believe that constitutions not only influence each other but also become more similar, so that over time constitutions converge.6 Supporters of the convergence thesis can cite a mass of anecdotal evidence. Liberal democracy has advanced in a succession of waves over the past two hundred years. Setbacks have occurred, but the trend is clear and in the last several decades has accelerated. Judicial independence, including judicial protection of individual rights, has also advanced steadily, making significant incursions in countries with traditions of parliamentary sovereignty.8 At the retail level, certain kinds of rights - freedom of expression, freedom of religion, the right not to be tortured - have spread, as have various doctrinal techniques for trading off liberties and other values.9 Citing this evidence, Mark Tushnet has argued for the "inevitability" of at least some forms of constitutional convergence.10 But the convergence thesis raises a number of questions that have received litde attention from scholars. The major empirical question is whether convergence is really taking place - whether the anecdotal evidence reflects deep forces or is epiphenomenal. Recent years have seen an upsurge of authoritarianism in Russia, China, and many other countries, and certain types of convergence at the retail level have been offset by other types of new or persistent divergence. …