A Response to Mark Tushnet by David Fontana

[David Fontana is a Professor at George Washington University School of Law]

Mark Tushnet has written another interesting paper, yet again combining his background in American and comparative constitutional law.  Tushnet argues—with some qualifications—that there are major structural pressures leading to the globalization of a genre of provisions of domestic constitutional law.  Tushnet’s paper is shorter, so there are many claims that can only be discussed by necessity in less detail.  But I want to use my space to raise some methodological questions and requests for clarification, and then raise some substantive responses to his article.

First, let me discuss my questions about methodology and calls for clarification.  Before being asked to evaluate Tushnet’s claims, I would want to know more clearly precisely which countries he is referencing.  He talks about “nations that compete internationally for investment and human capital, with classes of lawyers able to assert some autonomous pressure on a nation’s government.”  Does that include China, which surely meets the first criteria, and maybe less so the second criteria?  Does that include Colombia, which is better on the second criteria and maybe less good on the first criteria? This call for clarification is related to a note about methodology.  There are actually indices of protections of rights, and so it is possible to look into whether Tushnet’s claims about the globalization of constitutional law have actually played out in practice, and if not what caveats he might add to this analysis.

Second, let me discuss my substantive comments.  It strikes me that many of the pressures leading to the globalization of constitutional law that Tushnet discusses might just result in a quite narrow globalization.  As Tushnet briefly notes at a few points in his Article, the elites that prefer the protection of rights might prefer protection of the rights that global elites find most relevant.  The evidence that those involved in international business care about the rights of others (either for its own sake or because of a slippery slope concern that once rights are violated as relates to others they might be violated for international business) is not that strong.

This limited nature of globalization referenced above might be taken even farther.  Only certain schools might be subject to the globalizing pressures that Tushnet describes—maybe the top few elite law schools in other countries, and likewise here (the globalization of law faculty, students and classes is much less pronounced at schools outside of a handful of the top law schools in the United States).  Only certain lawyers might be subject to globalizing pressures.  It is true that the small town family lawyer in Nebraska might have more cases that involve non-American law, but all the evidence suggests that they deal with non-American law still only very, very rarely.  And only certain courts might be subject to the globalizing pressures that Tushnet describes.  It might affect the Constitutional Court in a country, but not other courts (since maybe only the Constitutional Court will have lawyers who practiced in big cities, went to super-elite law schools, and only that court will deal with major overseas interests).

Finally, there are many ways in which the globalization that Tushnet describes, however broad in terms of the substance or reach of the constitutional provisions being enforced, might be much more limited than we might imagine because preferences are not fixed.  An interest in the protection of rights and in constitutional principles is post-materialist.  As Ronald Ingelhart and others have discussed, our interest in post-materialist political issues is a product of a certain sense of economic security that has pervaded the developed world (Inglehart is really talking about global political life after 1970).  When countries hit hard economic times, the structural dynamics that led to globalization might cut against it.  Global elites care less about protecting the rights of others, or non-business rights, when their very existence is at stake.  In other words, much of constitutional law involves luxury goods.  And with us facing a global recession, there might be to reason to believe there will be at least some inevitable retrenchment of the globalization of constitutional law.