Harvard Law School

Public Law & Legal Theory Working Paper Series

Paper No. 09-06

The Inevitable Globalization of

Constitutional Law

Mark Tushnet
Harvard Law School

This paper can be downloaded without charge from the Social Science
Research Network (SSRN) electronic library.

Electronic copy available at: http://ssrn.com/abstract=1317766

 1

The Inevitable Globalization of Constitutional Law

Mark Tushnet1

I. Introduction
Lorraine Weinrib writes of a post-war paradigm of domestic
constitutional law, adopted by nations around the world.2 That paradigm
combines institutional and doctrinal features. Institutionally the post-war
paradigm insists on the importance of constitutional review of legislation
by an independent court; that is, it rejects parliamentary supremacy in its
strongest forms. I would add a reasonably high degree of centralization of
regulatory authority in national governments,3 even in nominally federal
systems.4 Doctrinally the post-war paradigm implements national

1
William Nelson Cromwell Professor of Law, Harvard Law School.
Prepared for presentation at a workshop on separation of powers at The
Changing Role of Highest Courts in an Internationalizing World,
sponsored by the Hague Institute on International Law, Oct. 23-24, 2008.
I thank participants in the workshop, and especially Eyal Benvenisti,
Rainer Nickel, and Otto Pfersman, for their comments and critical
suggestions, and Gabriella Blum for her comments. I received additional
helpful comments at a workshop at the University of Pennsylvania Law
School, and at the Public Law Workshop at Harvard Law School.
2
The Post-War Paradigm and American Exceptionalism, in THE
MIGRATION OF CONSTITUTIONAL IDEAS (Sujit Choudhry ed. 2006).
3
Notably, as a matter of stated international law, the fact that a nation
may be unable to comply with international obligations it has undertaken
because of its internal federal structure does not in general relieve the
nation of its duty to comply and its vulnerability to sanctions for non-
compliance.
4
The combination of regulatory authority flowing upwards from nations
to supranational bodies such as the European Union and the devolution of
regulatory authority to subnational units complicates this suggestion.
Speaking broadly, I would assert that the post-war paradigm with respect
to regulatory authority is that no governing entity can depart much from
some standard set at a reasonably high level: So, for example, both
subnational units exercising devolved power and national ones have some,
in my view, modest margin of appreciation with respect to their
regulatory choices, but it is the modesty of the margin rather than its
existence that is the important feature of the post-war paradigm. I believe
that there is also a trend toward concentration of power in the executive
branch in separation-of-powers systems, but that the reasons for this trend

Electronic copy available at: http://ssrn.com/abstract=1317766

 2

commitments to the protection of basic human rights through

proportionality tests licensed by explicit (though sometimes implicit)
limitations clauses. In addition, the paradigm includes a separate
commitment to rule of law principles regarding procedural regularity,
legal transparency, and modulated legal change so as to avoid defeating
reasonable expectations of legal stability.
Set against the idea of a post-war paradigm of constitutional law is
the idea of domestic constitutional exceptionalism. Australia and the
United States appear to be the nations with the strongest commitment to
exceptionalism. Australia lacks a judicially enforceable set of human
rights, for example, and the United States appears to resist references to
non-U.S. constitutional law in constitutional adjudication for reasons
rooted in exceptionalist ideas. The sources of these commitments to
exceptionalism differ somewhat. Australian exceptionalism seems rooted
in a deep national commitment to legislative supremacy as the best
expression of democratic self-governance.5 United States exceptionalism
seems to arise from a related concern: Not that legislative supremacy is
the best expression of democratic self-governance, but that there is an
ineradicable tension between the post-war paradigms commitment to
reasonably intrusive judicial supervision of legislation and even somewhat
modest versions of the view that legislatures are the preferred locations for
democratic choice.6
To speak of the globalization of domestic constitutional law is to
suggest that these and other traditions of exceptionalism are likely to
weaken over time.7 The suggestion is different from weaker in some
ways, stronger in others the claim that nations will gradually but
inevitably abandon authoritarianism for rule-of-law constitutionalism. It
is weaker than that claim because the globalization processes I identify are

are not closely related to the causes of the globalization of domestic

constitutional law I discuss here
5
For an argument that Australian exceptionalism is weakening (or perhaps
only that it should weaken), see Michael Kirby, Transnational Judicial
Dialogue, Internationalisation of Law and Australian Judges, 9
MELBOURNE J. INTL L. 171 (2008).
6
For reasons sketched below, text accompanying notes --- infra, I do not
think that American constitutional exceptionalism rests on an accurate
judgment that the values constitutionalized in the United States differ
significantly, either individually or as a package, from those
constitutionalized in other modern social welfare states.
7
I am concerned here with domestic constitutional law, and do not address
the separate question of, and controversy over, whether there is something
fairly called a constitution of the international order or a global
constitution.

Electronic copy available at: http://ssrn.com/abstract=1317766

 3

limited to nations some authoritarian but others already rule-of-law

systems that compete internationally for investment and human capital,
with a class of lawyers able to assert some autonomous pressure on the
nations government.8 It is stronger than that claim, though, because I use
the term globalization to suggest convergence among national
constitutional systems in their structures and in their protections of
fundamental human rights.9
I refer to convergence and (sometimes) harmonization, but not to
uniformity. The processes I describe may induce nations to converge on
the statement of constitutional principles on high or intermediate levels of
abstraction or on some quite specific details, and even convergence on the
most abstract level can be important and consequential. But so too are
differences in detail, which means that globalization does not entail
uniformity. Further, although I argue that there are processes that push in
the direction of convergence, I make no claims about the magnitude of
those processes effects, or (putting it another way) about the extent to
which those effects will be offset by counter-pressures in particular
nations. As a result, I make no claims either about the rate at which the
globalization of domestic constitutional law will occur.
My point of reference is the United States, whose constitutional
system I know best, and my argument is that the globalization of
constitutional law is impelled by top down and bottom up forces that
have reasonably deep roots in the political and economic system in which
every nation within the scope of my argument is today located.10 This
Essay examines top down processes impelling the globalization of
constitutional law in Section II and bottom up processes in Section III.
Section IV turns to some sources of resistance to that globalization,
describing and to some extent explaining why I discount these
countervailing forces. My argument might be described as one in which
nations race with respect to constitutional law, and Section V asks whether

8
For example, nations whose income depends on resource extraction may
not experience many of the pressures attributable to the preferences of
highly skilled workers, few of whom will be permanent residents in such
nations. The limited effects of the processes I describe here on
authoritarian regimes and resource-extraction nations suggests that the
phenomenon I am describing is one of only partial globalization of
constitutional law.
9
In what follows I sometimes speak of a convergence among domestic
constitutional systems, but I refer to a single phenomenon of
globalization/convergence.
10
As noted in the text, I am agnostic as to the general content of the rules
on which domestic constitutional systems will converge, whether on
abstractions, mid-range concepts, or details.
 4

the race is to the top, the bottom, or somewhere else. The Conclusion
discusses some implications of the argument for domestic separation of
powers law. In sum: Because the globalization of domestic constitutional
law is inevitable, notions of separation of powers or of legislative
supremacy qualified by the existence of judicial review will have to
accommodate themselves to that globalization. Although my primary
argument here is about the processes impelling globalization, in my
conclusion I will sketch some thoughts about how that accommodation
might occur.

II. Top-Down Processes of the Globalization of Constitutional Law

Most scholarship on the globalization of domestic constitutional
law focuses on top-down processes. Probably the most widely known is
Anne-Marie Slaughters work on the development of cross-national
networks of constitutional court judges, akin to the cross-national
networks she finds throughout the contemporary international system.11
Judges of the worlds constitutional courts now meet regularly in
academic and other conferences, and some serve with others on various
transnational bodies. Slaughter suggests that personal interactions at least
conduce to and probably encourage judges to consider and occasionally
adopt solutions to problems they come to see as common across
constitutional systems.12 Personal contact will show a judge of a
constitutional court in one nation that judges occupying similar positions
elsewhere often confront the same kinds of problems the first judge does,
that those judges seem to be sensible people and reasonably astute
lawyers, and that the first judge could probably do worse than take their
solutions seriously as she attempts to solve the problems she faces. For
some, judges in other nations will become members of the reference group
of people whose judgments about their own work matter. And, apart from
these networking connections, as the worlds elites become more
cosmopolitan as trends in education and transnational career paths
suggest they will they will be increasingly inclined to view decisions

11
The most developed exposition is ANNE-MARIE SLAUGHTER, A NEW
WORLD ORDER, ch. 2 (2004). Slaughter includes among the reasons for
the development of a globalized constitutional law the choices individual
judges make when they refer to decisions by courts from other nations.
This is of course descriptively accurate, but in contrast to her identification
of personal contacts, it does not suggest a mechanism leading judges to
make such choices.
12
See id. at 96-99. For a substantially more skeptical view of the effects
of transnational networks, focusing on NGOs, see ANNELISE RILES, THE
NETWORK INSIDE OUT (2000).
 5

taken elsewhere as worth considering as they deal with domestic

constitutional problems.
As Weinribs account suggests, convergence can occur narrowly,
for example with respect to the general approach constitutional court
judges take to government efforts to regulate speech critical of
government policy that executive officials believe poses some threat of
social disorder. Or it can occur more broadly, as with the formulation of
proportionality tests in numerous doctrinal domains. But, in this phase of
the analysis, what propels convergence is personal contact among sensible
lawyers seeking to perform what they come to understand to be similar
jobs.
Transnational NGOs who take constitutional matters typically
but not exclusively, a subset of constitutional law dealing with
fundamental human rights as their focus of concern provide another
institutional location pushing toward the globalization of constitutional
law.13 These NGOs intervene in domestic constitutional disputes in
several (or many) nations, and put forward a universalist understanding of
human rights. Sometimes the interventions take the form of
constitutional advice giving, in which they offer constitutional structures
and rights as models worth adopting.14 Sometimes this may mean no
more than informing domestic courts of the approaches taken to the
problem at hand in other nations; sometimes, I think more often, the aim is
to influence the domestic courts to adopt the NGOs preferred solutions by
providing good reasons (as the NGOs see things) for those solutions. To
the extent that transnational NGOs tend to present a more-or-less unified
perspective in favor of human rights as currently understood, their regular
appearance in domestic courts will provide a consistent force in one
direction, at least until (as might happen) some countervailing pressure is
consistently asserted by some other institutions.15

13
These NGOs might be transnational in structure, such as Amnesty
International, or might be permanent alliances among domestically
organized groups.
14
For my views on this practice, see Mark Tushnet, Some Skepticism
About Normative Constitutional Advice, 49 WILLIAM & MARY L. REV.
1473 (2008).
15
These countervailing pressures might come from counter-NGOs, if they
develop (anti-terrorism NGOs, for example). Particularly if such NGOs
are domestically oriented, they might emphasize the peculiar national
concerns implicated in the problem presented, and stress that transnational
NGOs cannot fully appreciate those concerns. And, of course, domestic
legislatures and executive authorities will always be present, perhaps
supplemented by support from allies on the international scene. My
tentative view is that the transnational NGOs have a systematic advantage
 6

Top-down pressure also comes from transnational treaty bodies

whose decisions have domestic constitutional implications, sometimes
through the force of law and sometimes through more diffuse mechanisms
such as effects on reputation. Here the exemplary institution is the
European Court of Human Rights. National courts subject to review by
these treaty bodies will almost inevitably mirror their jurisprudence, that
being the safest way to avoid reversal, embarrassment, and perhaps
financial sanctions against the domestic government. Here the mechanism
of convergence is straightforward. Perhaps the only point worth making is
that this form of globalization can occur with respect to institutional
structure as well as human rights. So, for example, the ECHRs decisions
on the relation between fundamental fairness and judicial structure16
appear to have played some role in the creation of the new Supreme Court
in the United Kingdom.17
Convergence induced by international treaty bodies does raise an
important point relevant to the separation of powers. Nations subject
themselves to regulation by international treaty bodies through their
domestic law-making processes.18 Accession itself cannot raise
interesting separation-of-powers questions. But, as the international treaty
bodies begin to make decisions that some claim to have domestic effect, it
may sometimes happen that treating those decisions as domestic law will
raise troublesome questions of domestic constitutional law.19 But, the

along one dimension because they can present and sustain a single view
over a reasonably long period, whereas national governments face
conflicts from within the nation that make it more difficult for them to do
the same. But, of course, national governments will almost certainly have
greater resources than transnational NGOs, giving them an advantage
along another dimension.
16
See, e.g., Procola v. Luxembourg, 22 ECHR 193 (1995); McGonnell v
United Kingdom, 30 EHRR 289 (2000).
17
For a report of the Council of Europe recommending that the United
Kingdom consider the creation of a Supreme Court to avoid the
combination of functions in the House of Lords, see Council of Europe,
doc. 9798, 28 April 2003, Office of the Lord Chancellor in the
constitutional system of the United Kingdom, available at
http://assembly.coe.int/Documents/WorkingDocs/Doc03/edoc9798.htm.
18
For present purposes I put aside as unproductive what seem to me
largely theoretical questions about whether a nations constitutional
system is monist or dualist with respect to international law.
19
For discussions of the U.S. constitutional issues, see Curtis A. Bradley,
International Delegations, the Structural Constitution, and Non-Self-
Execution, 55 STAN. L. REV. 1557 (2003); David Golove, The New
Confederalism: Treaty Delegations of Legislative, Executive, and Judicial
 7

very fact that the international treaty body with some semblance of
authority has made a decision will assert some pressure against the
arguments premised solely on domestic constitutional law.20 And, as I
have already suggested, when the purely domestic arguments fail and the
international bodys decision prevails, almost necessarily domestic
separation-of-powers law will have accommodated the development.
Again, these effects will not always occur,21 but when they do the effect is
always in the direction of globalization and, concomitantly, adjustment of
domestic separation-of-powers law.

III. Bottom-Up Processes of the Globalization of Constitutional Law

David Law connects globalization and constitutional rights by
means of market processes.22 He argues that economic globalization
includes competition among nations for investment and human capital.
Nations compete by offering investors and those with high levels of
human capital the well-educated and trained attractive packages of
benefits. An important component of those packages, Law argues, is
constitutional protection.
The argument as to investors is straight-forward.23 When
considering where to place their capital, investors will consider the returns

Authority, 55 STAN. L. REV. 1697 (2003); Edward T. Swaine, The

Constitutionality of International Delegations, 104 COLUM. L. REV. 1492
(2004).
20
Here I think it significant that the weight of scholarly authority in the
United States on the separation-of-powers questions these arrangements
raise supports the arrangements, as does the weight of the (very little)
judicial authority.
21
See, for example, Medellin v. Texas, 128 S. Ct. ---- (2008).
22
David S. Law, Globalization and the Future of Constitutional Rights,
102 NW. U. L. REV. 1277 (2008). In what follows I sketch the outlines of
Laws argument, which in its details contains a number of important
qualifications that go largely to the pace of globalization of constitutional
law.
23
A note on the harmonization of private law seems appropriate here. The
pressures for private-law harmonization are, I believe, substantially greater
than those for the globalization of constitutional law. Differences among
substantive legal rules applicable to private transactions are costly in direct
and obvious ways. This gives lawyers and their clients a reasonably
strong interest in reducing such differences, which can be accomplished
through harmonization. The costs of differences in constitutional law are,
in contrast, less obvious and, perhaps more important, more difficult to
reduce by ordinary political means.
 8

they are likely to receive on the investment. Consider an investor

choosing between one nation that offers a relatively high rate of return, but
does not guarantee that the investor will actually be able to realize the
returns because the nations constitution authorizes the government to
expropriate investments and returns at will, and a nation offering a slightly
lower rate of return. As Law puts it, investors seek . . . to maximize
their risk-adjusted returns.24
Depending on the size of the gap and the likelihood of
expropriation, the second nation may be able to attract the investment by
coupling the lower rate of return with an assurance that the returns will
actually be realized. And it can do that by providing constitutional
protections for investment, to be enforced by an independent court (that is,
a court not under the control of the executive government). To meet that
competition, the first nation will adopt similar constitutional protections.
So, through a race to the top, globalization induces one nation after
another to adopt constitutional protections for property rights, enforced by
independent courts.25
But more than property rights are involved. Investors value
political stability generally, and there is some reason to think that a
government can reassure investors worried about stability by providing
some threshold level of civil rights and civil liberties to the nations
residents. That level, to be sure, may not be terribly high. Further, some
authoritarian rules may have time horizons that are short enough
basically, to the point where they expect to leave the country with wealth
they have accumulated that make them indifferent to concerns about
stability in the longer term. Even so, stability concerns are likely to have
some effect, however modest, in giving ruling elites incentives to provide
some modest rights guarantees.
The argument with respect to human capital is different because it
depends on assumptions, almost certainly correct, about the preferences of
well-educated people, that is, those with relatively high levels of human
capital.26 Law assumes that such people prefer reasonably high levels of
individual freedom, including freedom to live a private life pretty much as

24
Law, supra note ---, at 1311.
25
Law emphasizes that constitutional rules that maximize risk-adjusted
returns will almost inevitably authorize significant amounts of government
economic regulation in the service of economic and political stability. Id.
at 1311-12.
26
As Law puts it, To the extent that workers with valuable skills are
mobile and desire similar rights and freedoms, competition for such
workers has the potential to generate a race to the top . Id. at 1323
(emphasis added).
 9

one will, freedom of expression, and freedom of religion.27 It is important

to emphasize that this is an assumption about the preferences of and values
held by those with these levels of human capital: Not only do they prefer
these liberties for themselves, but they also prefer that others in the society
with which they identify have the same liberties.28 If that is correct,
nations will compete to offer these people constitutional protections of
personal freedom, for the same reasons that they will compete to offer
property-rights protections: In a globalized economy, people with high
levels of human capital are just about as mobile as investment capital, and
will locate themselves in nations that provide them with what they want by
way of freedom.
Laws arguments rest on the proposition that real and human
capital is mobile. There is another source of bottom-up pressure to
globalize constitutional law, involving not actual physical mobility of
investments and people but mobility in the provision of services,
specifically legal services. Globalization means that lawyers in one
country will routinely interact with other nations legal systems. So, for
example, family lawyers in the United States will inevitably deal with the
Hague Convention on the Civil Aspects of Child Abduction, and in doing
so will have to come to some understanding of whether or how another
nations procedures provide fundamental guarantees of procedural
justice.29 Lawyers working on transnational contracts will have to
understand where in some other nations constitutional system relevant
regulatory authority resides in the nation or in some subnational unit, for
example, or in which administrative body. To do so the lawyer will have
to understand the nations constitutional system.

27
See id. at 1335-36 (citing evidence to support the proposition that elite
workers are . . . characterized by a taste for individual freedom .).
This taste, I note, might sometimes be satisfied by constitutional
protection afforded to common values realized differentially, at least
within some range of reasonableness. To the extent that Webers classic
thesis about the connection between certain religious beliefs and personal
investments in acquiring human capital is correct, there might be an
intrinsic connection between having a high level of human capital and
(some) religious beliefs supporting religious freedom.
28
The idea here is similar to that dealt with in the literature on the
proposition that richer is safer, that richer people prefer higher levels of
safety than poor people do because their preferences change as they
become richer and not simply because they can afford to purchase more
safety with their greater incomes.
29
I use the example of family lawyers and the Hague Convention because
in the United States such lawyers tend to be sole practitioners or
practitioners in small law firms. The example thus demonstrates how
deeply globalization penetrates into the legal profession.
 10

These examples, involving both constitutional rights and

constitutional structure, show that domestic lawyers will need to learn
about other nations constitutional systems. Doing so is costly. The cost
of learning will be lower if the other nations constitutional system is the
same as, or nearly the same as, the domestic lawyers.30 To overstate the
point: Having learned domestic constitutional law, the domestic lawyer
will already know at least something about the other nations.31
This suggests that domestic lawyers with transnational business
which is to say, a great many domestic lawyers will prefer some degree
of convergence of constitutional systems. A domestic lawyer will face
lower costs in transacting with lawyers in nations with constitutional
systems similar to the one the domestic lawyer already knows than in
transacting with lawyers in nations with dramatically different
constitutional systems. The difficulty, though, is that this demand will
arise at both ends of transactions, and it will be less costly for the lawyers
in each nation if the other nations law moves in their direction. This is a
classic coordination game, with two equilibria acceptable to the players
but with neither having any obvious advantages. To some extent it can be
solved, or at least its impact lessened, because of ordinary learning
processes: With any luck, after dealing with each other, the lawyers in
one nation will come to think that the other nation offers a better solution
to specific constitutional problems, and will urge their law-makers to
adopt that solution. The same network processes that lead constitutional
court judges to learn from each other can lead lawyers to do the same.
The judges have the power to change the law, of course, whereas the
lawyers can only place pressure on their nations law-makers to change
the law.
Perhaps more important, markets may intervene here as well.
Consider lawyers in two nations competing to obtain business in another
nation. Their transacting partners will prefer to deal with lawyers from the

30
My argument here is related to the argument prevalent in the literature
on harmonization of private law that harmonization or convergence makes
coordination (and contracting) easier. It differs from that argument
because the domestic constitutional rules on which national systems
converge do not provide a solution to a coordination problem available to
both parties at low cost but instead reduce the cost of determining whether
some arrangement is constitutionally permissible or prohibited in one or
the other constitutional system.
31
Changes in legal education could supplement convergence. As students
lawyers would learn the constitutional law of other nations, thereby
reducing the costs of practicing law transnationally. Legal education
occurs before the lawyer knows which nations constitutional law she
should know, which suggests that some degree of convergence will still be
useful to practicing lawyers.
 11

nation whose laws (including constitutional law) are similar to their own:
The costs to the transacting partners are lower, after all. That will induce
the lawyers in the nation who lose business to seek changes in their own
nations law. Competing for business in a globalized economy, domestic
lawyers will demand (in the economic sense) that their own
constitutional system converge with systems elsewhere.32
That demand exists does not mean that supply will be forthcoming.
Law producers have to see the increased demand and conclude that
somehow they themselves will benefit from convergence.33 Here bottom-
up pressure has to be satisfied through top-down processes. To this point I
have emphasized structures and pressures, but to complete the argument, it
seems to me necessary to give ideology some direct role rule-of-law
considerations for the judges in transnational networks, substantive
commitments to human rights for the highly skilled. By way of
introducing further qualifications, I point out there is nothing inevitable
about the direction in which these ideological considerations will push,
and so nothing truly inevitable about the globalization of domestic
constitutional law only some seemingly strong structural pressures in
that direction.

IV. Qualifications: Counterpressures on the Supply Side

The law- and lawyer-driven accounts of bottom-up globalization
identify tendencies, of course, and certainly identifying them tells us
nothing about the pace of globalization of domestic constitutional law. In
addition, each is subject to possibly important qualifications.
Perhaps the most important qualification is that the bottom-up
accounts treat market pressures toward globalization as exogenous to the
domestic and international legal systems, yet markets are themselves
constructed by legal rules. Were there a different set of legal rules in
place for example, rules that treated contracts between a prosperous
party and a significantly less prosperous one as voidable as coercive
there would be different pressures on national law-makers to develop
other rules, and not necessarily the constitutional protections Law argues
are produced by the race to the top.34 As an analytic matter, this seems
clearly correct, but somehow misdirected in the world as it now is. Law

32
I suspect that some mechanism like this might explain what appear to be
mere preferences for convergence in Slaughters account.
33
The profit motive induces producers of goods and services to respond to
increased demand, but there is no closely analogous motive for law-
makers.
34
This combines a standard legal realist critique of contract doctrine with
equally standard public choice analysis.
 12

implicitly makes reasonable assumptions about the actual content of

domestic legal regimes, and at the very least his arguments have a
resonance that the realist critical argument lacks.35 Put another way: Law
assumes, I believe correctly, that some version of the so-called
Washington Consensus is likely to remain important in structuring
domestic legal rules in nations interested in attracting investment and
high-skilled human capital.
Earlier I suggested some additional qualifications. Authoritarian
regimes are likely to resist rather strongly pressures to level up the
protections they give civil rights and civil liberties, though not property
rights. And a nation whose wealth rests on resource extraction may have
little need to attract large enough numbers of people with high levels of
human capital for such people to place pressure on the nations
government. These qualifications have a common structure. Political
elites are willing to forgo the economic benefits of inflows of investment
or high-level human capital,36 so as to ensure that their political power is
not diminished by constitutionalizing civil rights and civil liberties. Put
another way, elite preferences can counter pressures toward the
globalization of domestic constitutional law.37

35
A more limited point about the endogeneity of law bears on the lawyer-
related bottom-up argument. Domestic lawyers have an interest in
monopolizing access to domestic law through the usual exclusionary
practices. Yet, it seems to me, exclusion of non-domestic lawyers from
domestic legal practice is not related to (or only quite indirectly related to)
the bottom-up pressures domestic lawyers may place on their law-makers
to bring domestic constitutional law into rough alignment with
constitutional law elsewhere. And, in any event (and for whatever
reason), the domestic lawyers monopoly over legal practice seems to
have weakened substantially in the era of globalization. Each member of
the European Union must allow lawyers licensed in other member states to
practice locally. See Case 2/74 Reyners v Belgian State [1974] ERC 631;
Case C-55/94 Gebhard v Consiglio dell'Ordine degli Avvocati e
Procuratori di Milano, [1995] ECR I-4165. And, even in the United
States, many jurisdictions allow non-U.S. lawyers to practice relatively
freely.
36
Inflows of high-level human capital may be unnecessary in both cases
for resource-extraction nations because resource extraction can take place
without much high-level human capital, and in large authoritarian nations
because such capital can be developed internally rather than imported.
37
These elite preferences can take other forms. They may prefer to
preserve domestic sovereignty rather than elite power. Or elites may
believe that the costs of guaranteeing human rights are too great given the
nations resources, especially if the package of human rights includes
some degree of protection for social and economic rights. For a
 13

Consider next the argument that competition for investment capital

will induce nations to provide reasonably high levels of protection for
investment by means of constitutional doctrines limiting expropriation and
regulatory interventions that substantially reduce that capitals value.
Tamir Moustafas account of judicial independence in Egypt is quite
suggestive here,38 and seems likely to have general implications.
According to Moustafa, Egypts authoritarian government came to
understand that its socialist and nationalist commitments obstructed in-
flows of capital, because investors worried that their investments were
always at risk of expropriation. The government responded to those
concerns by creating an independent constitutional court authorized to
enforce constitutional guarantees, including an anti-expropriation
guarantee. The court then exercised its independence to weaken the
governments authoritarian control over elections a bit, thereby leading the
government to reconsider its commitment to judicial independence. Yet,
doing so across-the-board would raise once again foreign investors
concerns about expropriation.
On the level of institutional design, the solution for an
authoritarian government seems obvious: Create an independent court
with jurisdiction restricted to the matters of concern to foreign investors,
and rigorously honor that courts decisions even when they are at odds
with the governments immediate policy preferences.39 The effect would
be to create a bifurcated system of constitutional protections, in which
rights of domestic subjects received relatively low levels of protection.
Law suggests that such a solution might be unstable, perhaps because the
existence of parallel regimes of protection would be an ever-present
reminder of the authoritarian governments ability to set the level of
protection at whatever point it found politically advantageous at the
moment, and such a reminder would undercut the anti-expropriation
commitment the government seeks to make.40 If Law is correct, the

discussion of resistance by local lawyers to the lawyer-driven bottom up

pressure, see text accompanying notes --- infra.
38
TAMIR MOUSTAFA, THE STRUGGLE FOR CONSTITUTIONAL POWER: LAW,
POLITICS, AND ECONOMIC DEVELOPMENT IN EGYPT (2007).
39
I suspect that this solution may sometimes be unavailable because of
path-dependence: Were Egypt to shut down its existing constitutional
court and create a new court with narrower jurisdiction, the message to
foreign investors might be merely that the government retains complete
control over outcomes. Creating a court with restricted jurisdiction from
the outset would not send such a message nearly as overtly.
40
I take this suggestion from a portion of Laws article dealing with
competition for human capital, not investment, but it seems to be
applicable in both contexts. See Law, supra note ---, at 1342 (A
sovereign commitment to respect certain rights can be rendered credible
 14

globalization of constitutional law might occur even in somewhat

authoritarian nations.
A similar problem, and a related response, might arise in
connection with the argument for globalization of constitutional law based
on human capital. Even if nations need to attract and retain residents with
specialized training so as to compete effectively in global markets, they
could provide bifurcated protections high levels for people with good
human capital, low levels for those with only basic human capital assets.41
Again, this solution might be unstable because of the message of
vulnerability it sends to those with good human capital. And, probably
more important, people with high levels of education and training tend to
support human rights as such, that is, for everyone and not just for
themselves.42 A bifurcated system of rights-protection would then be
insufficient to attract and retain such people.43
Government resistance to globalization of domestic constitutional
law is a thread common to these processes. Local values, of a sort
captured in some conceptualizations of domestic legal exceptionalism,
counter the pressures toward globalization. So, for example, while there
might be widespread agreement on eliminating the possibility of outright
expropriation of foreign investments, there may well be a wide range of
variation in the extent to which regulatory impositions will be regarded as
the equivalent of expropriation. Some regulatory impositions might be
regarded as regulatory takings in one nation, and not in another, simply
because the nations differ with respect to the value they place on the goal
sought through the regulation.

by the existence of constraining institutional arrangements. By

definition, however, an authoritarian regime lacks such restraints on its
own power. The credibility of an institutional arrangements that a dictator
might devise in order to implement a two-tiered system of rights
protection would, in all likelihood, be backed by little more than the
dictators interest in developing and maintaining a reputation for the
favorable treatment of skilled workers.).
41
This is especially true because unskilled workers are likely to be less
mobile than skilled ones.
42
See note --- supra.
43
I should note that if a nation can manage to segregate highly skilled
workers in their own enclaves (a segregation that might be geographical or
cognitive), the bifurcated system of constitutional protection for the rights
of such workers and no protections for other workers might be reasonably
stable although I wonder how effective such segregation can be over the
long run.
 15

Resistance of this sort might be accommodated by adjusting

transnational norms, through doctrines in the margin of appreciation
family, without eliminating entirely the pressures toward convergence.44
More important, though, may be the difficulty national governments will
have in sustaining resistance. On many issues that might be arise in the
globalization of domestic constitutional law, national governments may
find themselves internally divided, needing to satisfy some domestic
constituencies that favor the convergence on a specific issue even if they
are indifferent to convergence in other issue-areas. Overstating a bit:
National governments will face constant pressure toward globalization of
domestic constitutional law, and will be able to resist that pressure only
intermittently.
One might think that there might be a somewhat different conflict
between protection of property rights, induced by competition in the
market for investment capital, and one set of human rights widely
recognized in contemporary constitutions protection for so-called
second-generation social and economic rights. The reason for the conflict
is basically cost: Ensuring second-generation rights requires state
expenditures financed out of taxes (todays or tomorrows), but the
prospect of paying high taxes might adversely affect a decision to invest in
one rather than another nation. As with the other qualifications I have
mentioned, here too there is an offsetting influence, albeit one falling
within the top-down category: International financial institutions such
as the World Bank and the International Monetary Fund have increasingly
come to the view that investments in human capital particularly the
provision of education and medical care ultimately repay themselves out
of the increased productivity to which they contribute.45 These top-down
pressures to protect some second-generation rights might offset the
bottom-up pressures against doing so.46 I suspect that the globalization of

44
This is particularly so if the theory of the margin of appreciation
contemplates its gradual reduction over time, as the official theory of the
European human rights regime has it.
45
See, e.g., Press Release no. 2008/259/DEC, Progress Toward Nutrition,
Health, Education, and other Development Goals off Track, April 8, 2008
(available at
http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:
21717783~pagePK:64257043~piPK:437376~theSitePK:4607,00.html)
(quoting World Bank president Robert Zoellick: As the report shows,
reducing malnutrition has a multiplier effect, contributing to success in
other MDGs including maternal health, infant mortality, and education.).
46
For a further account of top-down pressures, see Law, supra note ---,
at 1318-19 (describing World Bank, U.S. government, and European
Union programs that encourage aid recipients to protect human rights).
 16

domestic constitutional law will lead to convergence not towards classical

liberalism, but to some sort of social democratic liberalism.47
The lawyer-driven account of bottom-up globalization faces its
own challenges, and can offer its own responses. One challenge, again,
looks to local elites, here local lawyers who can offer themselves as
specialists in domestic constitutional law to the lawyers outside the nation
who are trying to arrange deals. My sense is that such lawyers play an
important role in contemporary transnational transactions. Lawyers on the
other side of the transaction hire local specialists to assure them that the
transaction is consistent with local law, including local constitutional law.
Harmonization and convergence take the local constitutional lawyers
distinctive knowledge away from them, and they can be expected to argue
against convergence.
These domestic constitutional specialists are not the only interest
group involved, though, and may not be the strongest one. First, the non-
national lawyers must be confident that the local lawyers they are hiring
are truly competent in the fields in which they specialize. Achieving that
confidence may be difficult, but some degree of convergence may help.
Perhaps more important, the domestic constitutional lawyers are only a
subset of all the domestic lawyers involved in transnational transactions.
The local transactional lawyers can reduce the cost of transacting by
eliminating their partners need to hire another specialist.48 It seems to me
likely that there will be more, and more influential, local transactional
lawyers than local constitutional specialists.
A second lawyer-focused challenge is suggested by an important
recent article urging some caution in identifying areas of convergence in
constitutional law. Using judicial balancing and proportionality
doctrine as a case study, Jacco Bomhoff argues that we should be careful
about inferring from superficial similarities in doctrinal form convergence
at a deeper level.49 Bomhoff points to the many suggestions that
balancing in the United States and proportionality in the post-war
paradigm model are quite similar. But, he points out, Europeans often

47
An additional reason for this suspicion is the path-dependent one that
many workers with high levels of human capital will come from nations
with some degree of social democratic commitments and will (therefore)
prefer to see such commitments honored wherever they are located. Yet,
countering these preferences would be the interest-based advocacy of
more pure forms of neo-liberalism.
48
And, by doing so, may be able to reap a larger portion of the
transactions benefits for themselves.
49
Jacco Bomhoff, Balancing, the Global and the Local: Judicial
Balancing as a Problematic Topic in Comparative (Constitutional) Law,
31 HASTINGS INTL & COMP. L. REV. 555 (2008).
 17

omit extended treatment of institutional considerations in their discussion

of proportionality, while U.S. commentators and courts often make such
considerations important in their treatment of balancing. And Europeans
discuss proportionality by invoking Weberian concerns about formal
rationality, a concept entirely absent from U.S. discussions.
To some extent Bomhoffs argument is, as he acknowledges, a
straight-forward application of cautions familiar to scholars of
comparative law. Words take on meanings in contexts, and the relevant
contexts include the social, economic, and political organization of the
world within which the words are used. So, for example, judicial
references to balancing are at heart arguments offered to legitimize the
exercise of political power in particular settings. But, the legitimizing
force of these arguments is inherently dependent on local meanings and
understandings. More generally, balancing formulations combine the
universal the interests to be balanced with the local, the context within
which balancing occurs. Those who notice the similarities in doctrinal
formulations may overlook the differences in application because they are
insufficiently aware of the local contexts. And, as I indicated at the outset,
apparently small differences in detail can have large consequences, both
doctrinally and practically.
Another example might be the language of margins of
appreciation. That terminology resonates with notions of deference, but it
was developed by transnational treaty bodies attempting to explain why
they sometimes tolerated diversity with respect to the content and
enforcement of treaty rights across national jurisdictions. The rationale
for allowing a margin of appreciation is two-fold: an acknowledgement
that local conditions may vary widely enough to make variations in the
definition and protection of treaty rights sensible on policy grounds (the
local decision makers having a better sense of what will work well in their
local conditions), and respect for residual national sovereignty.
Consider then the question of whether or the degree to which a
domestic constitutional court should defer to decisions made by national
executives or legislatures respecting constitutional rights. A constitutional
court might observe that, with respect to the constitutional right at issue
(freedom of expression with respect to reputation, for example), some
transnational treaty body allows a substantial margin of appreciation. The
reason for allowing such a margin of appreciation will combine the two
reasons for having such a margin in the first place local variation and
national sovereignty. It might be a mistake, though, to give the national
law-maker a similar margin of appreciation. To some extent, the national
law-makers expertise might be analogous to domestic law-makers
greater knowledge of local conditions, and respect for the democratic
warrant for legislative or executive decision-making might similarly be
analogous to the sovereignty concerns to some extent. But the to some
extent qualifications mean that the deference the constitutional court
 18

should give in the purely domestic context might differ from the margin of
appreciation the transnational treaty body gives in its own institutional
context.
Bomhoffs arguments identify risks, and certainly caution against
strong claims about the extent to which the globalization of constitutional
law has already occurred. Some of the pressures for the globalization of
constitutional law might also work to reduce the imperfect understanding
that Bomhoff suggests might occur. Lawyers who discover that seeming
agreement on legal meaning masks misunderstanding will do what they
can to get meanings to converge further. And each transnational NGO
will be ready to offer consistent understandings across nations. The result,
I suspect, will be more rapid convergence with respect to high-level
abstractions than with respect to mid-level ones, and more rapid
convergence with respect to mid-level ones than with respect to many
though perhaps not all detailed constitutional rules.50
I should emphasize that the pressures for globalization that I have
identified merely push in that direction. We have no way to identify the
rate at which national constitutional systems will respond to those
pressures. A reasonable guess would be that convergence with respect to
fundamental rights will occur more quickly than convergence with respect
to constitutional structures, largely because constitutional structures more
strongly condition the way politics is conducted on the national level and
so through those who are involved in domestic politics produce
stronger counterpressures.
One final source of pressure against the globalization of domestic
constitutional law deserves mention. Constitutional constraints can be
enforced externally, by supranational treaty bodies for example, without
becoming internalized into domestic constitutional law. Indeed, we might
see the globalization of domestic constitutional law as a substitute for the
creation of a more general system of external enforcement a worldwide
federation of nations, for example. But, to the extent that external
enforcement is available and acceptable,51 domestic constitutionalization
is unnecessary.
V. Races to the Top and Bottom, and Elsewhere

50
For the moment I put to one side the question of whether nominal
commitment to high-level abstractions will be accompanied by genuine
enforcement of those abstractly described rights. For a discussion, see text
accompanying notes --- infra.
51
The British experience with the European Court of Human Rights
suggests that external enforcement may not always be acceptable: One
impetus for the adoption of the Human Rights Act 1998 was a sense
among British political elites that it was embarrassing for the nation to be
losing some many cases in the European Court.
 19

The bottom=-up pressures I have described create a race among

nations on issues of constitutional law. But is it a race to the top, to the
bottom, or to somewhere else?
Answering that question is difficult in part because it may be badly
posed. What is the top with respect to constitutional protections? The
United States gives greater constitutional protection to hate speech than do
most other liberal democracies, but at some cost to equality and human
dignity. Would convergence on rules allowing restrictions on hate speech
demonstrate a race in the direction of the bottom? Similarly with respect
to constitutional protections of property rights: How much
accommodation of local values is consistent with a race in the direction of
the top?
A few observations about the races direction seem reasonably
well-supported. First, there is no reason to think that the top with
respect to any specific constitutional guarantee is the most robust
protection offered anywhere in the world. Constitutional guarantees come
with costs, some to other constitutional values, and the nation with the
most robust protection of a particular guarantee may be giving insufficient
weight to those other values.
A second point is of particular relevance to U.S. readers. There is
no general reason to think that U.S. constitutional law is at the top with
respect to every specific constitutional guarantee. It may be there as to
some guarantees but not as to others. As a result, the possibility that U.S.
constitutional law will change as a result of the top-down and bottom-up
pressures does not mean that in general U.S. constitutional law will get
worse in some normative sense. My own sense is that these pressures will
induce some changes in constitutional law. Some of those changes will
seem reductions in the level of protection, for example perhaps with
respect to the protection given commercial speech, and others will seem
enhancements in the level of protection, for example perhaps with respect
to the open acknowledgement that U.S. constitutional law properly
understood guarantees some social and economic rights.52 In both cases,
though, the developments might as readily be characterized as movement
toward the top as toward the bottom.
Third, radical critics of the Washington Consensus tend to believe
that the consensus leads to a race to the bottom with respect to workers
rights and environmental protection. That belief seems to me overstated

52
For discussions of the proposition that such rights are indeed already
guaranteed by U.S. constitutional law properly understood, see Ernest
Young, The Constitution Outside the Constitution, 117 YALE L.J. 408
(2007); CASS R. SUNSTEIN, THE SECOND BILL OF RIGHTS: FDRS
UNFINISHED REVOLUTION AND WHY WE NEED IT MORE THAN EVER
(2004).
 20

even when we consider only competition for investment capital, because

of the effects of being at the bottom on social and political stability.
Adding the pressures from competition for high-level human capital
further weakens the claim that the race will end at the bottom. Subject to
the possibility that geographical and cognitive separation of those with
high-level human capital from those will less such capital will allow
nations to deny human rights to those with lower levels of human capital,
elite preferences for human rights exert pressure to push human rights
guarantees upwards though of course without any assurances about how
much upwards.
Perhaps, though, the metaphor of top and bottom leads us to
think in the wrong terms because it suggests that convergence will move
everyone to a single point, whether at the top or the bottom. Instead, there
might be multiple resting points. So, for example, we might see the
emergence of separate top down networks of high court judges.53
Cultural values to some but not all nations interested in attracting
investment and high-level human capital may lead to various stable
arrangements.
This seems a real possibility, but the argument may not undermine
the argument that globalization of constitutional law is inevitable quite as
much as it might seem. Perhaps human rights come in relatively large
packages, with some but relatively small variations within the packages. I
alluded to one version of this suggestion in discussing the possibility that
constitutional law would converge on rights stated at an intermediate level
of abstraction. It seems clear, for example, that a range of doctrines are
compatible with fundamental principles of free expression, but that some
doctrines are not.54 If this suggestion is right, we might observe races to
different points, but not to points widely separated on some relevant
measure of human rights overall.
VI. Conclusion: Globalization of Domestic Constitutional Law and the
Separation of Powers
Most of the pressures I have described can be accommodated by
any or all of a nations law-making institutions, and with respect to those

53
One can imagine, for example, a network of high-court judges from
Moslem-majority nations operating with only occasional contacts with
other judicial networks, or networks organized on a regional basis and,
again, with relatively few contacts with other networks.
54
A good candidate for one core principle is that governments may not
criminally punish people merely because they criticize government policy,
without making a reasonably strong showing that the criticism is likely to
lead to serious social instability.
 21

pressures separation of powers concerns are largely irrelevant.55 The most

prominent top-down pressures may be different in this respect, and indeed
my sense is that most separation-of-powers concerns have indeed been
expressed about judges influenced by transnational networks transforming
domestic constitutional law on their own, so to speak, and about the
implications for sovereignty of domestic constitutional responses to
pressures from and decisions by transnational treaty bodies. At the formal
level at least, I think that these concerns are misplaced.56
Rather, the concerns arise from an inchoate sense that convergence
among national constitutions toward a common position is somehow
problematic that it undermines national sovereignty in some difficult-to-
specify way. But, precisely because there is no good way to spell out
precisely and in good legal form why the convergence is troublesome,
application of ordinary domestic rules of constitutional interpretation will
almost always and perhaps will always lead to the conclusion that the
way in which globalization takes root in a nations constitution is
consistent with the nations constitution.
In many ways the globalization of domestic constitutional law
poses a problem for the separation of powers that resembles the problem
posed by the rise of the administrative state and its modern successors. In
the United States and Great Britain, the administrative state fit badly into
the standard tripartite theory of separation of powers. James M. Landis
finessed the problem by asserting that there was nothing magic about the
number three.57 And that turned out to be the solution in the United States
and Great Britain.58 Although occasionally questions about where

55
Put another way, to the extent that domestic constitutional law limits the
paths by which constitutional change can be accomplished through, those
pressures can exert themselves along the required pathways.
56
Judges on domestic constitutional courts have the authority to make
(and re-make) domestic constitutional law, and the separation-of-powers
concerns one might have about their doing so by appropriating non-
domestic law are no different from the separation-of-powers concerns
associated with their power to make law generally. For a discussion, see
Mark Tushnet, Transnational/Domestic Constitutional Law, 37 LOYOLA
(LOS ANGELES) L. REV. 239 (2003). And decisions by transnational treaty
bodies are either made applicable in domestic law by domestic processes,
including whatever requirements domestic separation-of-powers rules
impose, or induce domestic law-makers to make their own decisions,
again in accordance with those rules.
57
JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS (1938), p. ---.
58
Theorists of the administrative state attempted to rest its legitimacy on a
new account of the separation of powers. They emphasized that all we
really wanted from the separation of powers was a system in which
 22

administrative agencies, quangoes, Next Steps organizations and the like

fit into separation of powers theories crop up to bedevil constitutional
theorists,59 Landiss solution seems to have stuck: However
conceptualized, the modern administrative state must fit into our account
of separation of powers because it is here to stay.
So too, I suspect, with the globalization of domestic constitutional
law. Perhaps we will talk of the convergence process as one involving a
fifth branch of government Slaughters networks, for example. But
once we are comfortable with the globalization of domestic constitutional
law, the question of how we fit it into our separation of powers theories
will become uninteresting. I end by saying that this is entirely
understandable if, as I have sketched, the globalization of domestic
constitutional law is inevitable.

different institutions, with varying bases of legitimacy themselves, were in

a position to check and balance each other, and that modern society had
such institutions, both within the government and outside it in civil
society.
59
For a discussion of the imperfect fit between the British theory of
ministerial responsibility and modern forms of administration, see PAUL
CRAIG, ADMINISTRATIVE LAW (6th ed. 2008), ch. ---.