Comparative Constitutional Theory
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Comparative Constitutional Theory

Edited by Gary Jacobsohn and Miguel Schor

The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.
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Chapter 13: Text and textualism: religious establishment in the United States Supreme Court and the European Court of Human Rights

Howard Schweber


Abstract: In recent years there has been renewed attention paid to the variations in the ways in which constitutional reasoning takes place in different systems. This chapter extends that analysis by focusing specifically on the ways in which the constitutional text is treated as authoritative in different interpretive approaches. In the chapter I develop a scale of textualism running from greater to lesser reliance on the specific words of a constitutional text: strict textualism (Category 1), textual hermeneutics (Category 2), “empty vessel” readings (Category 3), and atextualism (Category 4). To apply this analysis I focus on cases involving religious establishment in the United States Supreme Court and the European Court of Human Rights. The choice of religious establishment as a test case is based on several factors: the fact that the European Convention on Human Rights contains no equivalent to the Establishment Clause of the Ist Amendment of the US Constitution; the fact that the need to balance religious pluralism and liberal democracy is a basic challenge to constitutional interpretation; and the wide variety of current national practices, as a result of which it is not possible to appeal to shared historical practices. All of these factors increase the salience of textualism in constitutional interpretation, but a comparison of the two courts studied here shows distinctly different approaches. These results suggest that textualism would be a fruitful basis for future comparative studies of constitutionalism.

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