The Inevitable Globalization of Constitutional Law

[Mark Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School]

The argument for “The Inevitable Globalization of Constitutional Law” identifies two general processes – top-down and bottom-up – pushing toward convergence of basic constitutional principles in a rather large number of jurisdictions, those that participate in world-wide markets requiring significant cross-border flows of investment and human capital.  We can talk about which jurisdictions are included and excluded, and why, if that’s the way the conversation develops, but for this initial post I’ll confine myself to describing the mechanisms of convergence.

The top-down processes have received the most attention in the literature.  These include the development of networks of judges who exchange ideas and become familiar with the way constitutional law is done in other jurisdictions, and the influence on domestic law of transnational “adjudicatory” bodies such as the European Court of Human Rights and the various United Nations committees dealing with human rights.  In addition, many transnational NGOs advocate the adoption of universal rules.

Bottom-up processes are less familiar but perhaps more important.  David Law has brought to our attention some effects of economic globalization on constitutional law.  He emphasizes the interests of transnational investment capital and of people with relatively high levels of human capital who migrate, temporarily or permanently, to maximize the returns on their human capital.  As the so-called Washington consensus showed, transnational investment capital has a strong interest in constitutional protection of property rights, to insure returns against the risk of expropriation.  And, independent courts created to protect property rights may have spill-over effects on the protection of other basic rights.

People with relatively high levels of human capital tend to have a preference for basic rights like privacy and free speech, at least for themselves.  They may be reluctant to relocate to jurisdictions where they will not have those rights.  To attract such capital, regimes will offer constitutional protection for those rights.  It may be difficult to “segregate” constitutional protections so that they are provided only to those with high levels of human capital and not to the population generally.  And, it may be that the preferences for constitutional protection are not entirely self-interested:  People with high level of human capital may prefer to live in jurisdictions where everyone has freedom of speech, for example.

In addition, in public law as in private law transactional lawyers have an interest in reducing the costs of transactions, many of which must be developed with an eye to domestic constitutional law, by reducing the differences among the law applicable in different jurisdictions.  Convergence in constitutional law is an attractive method of cost-reduction, though of course not the only one.

Finally, I should note that “convergence” or globalization doesn’t mean that the specific versions of constitutional principles will be identical across jurisdictions.  There may be family resemblances among the principles, or – as discussions of proportionality as a “universal” rule of law suggest – approaches to constitutional interpretation.  Such resemblances may be enough to reduce the learning costs for transactional lawyers sufficiently, and to enable people with relatively high levels of human capital to move comfortably from one to another jurisdiction.

Of course there are lots of qualifications that need to be inserted to flesh out the argument and identify its precise scope, but I hope that this is enough to give a general sense of why I think that the globalization of constitutional law is inevitable.