I would like to follow up Tom’s suggestion that we look forward to what 2011 might bring us constitutionally speaking by taking a look back at 2010. Which monographs and articles written in 2010 are worth reading?
My suggestion is David Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton U. Press 2010). It is a very cool and unusual study that analyzes in detail (and seeks to make sense of) the output of national high courts in Germany, Eastern Europe, France, Canada, and South Africa.
Here is why I think the book matters. It seeks to tease out what the job of courts is in a democracy by examining in detail what they do. This kind of empiricism is tough to do. It is a lot of work to read that many cases in detail. The conclusions are perhaps not surprising but they are important.
The argument is that the job of national high courts is to spread the values of a constitution throughout society: “[C]onstitutional judges often come near to being applied political theorists, carrying out a quite new type of political function (Robertson 1).” In fulfilling this mandate, judges create and rely on a body of judicial material, “part of what the French Conseil constitutionnel calls the bloc de constitutionnalité (Robertson 5).” In short, the right way to understand what it is that national high courts do is to examine and take seriously the common law of the constitution.
In an era when the common law output of the Supreme Court of the United States is coming under increasing criticism by originalists who, frankly, adopt a surprisingly civil law attitude by exalting constitutional text over precedent, we might want to reflect on why national high courts around the globe are busy building up and creating a common law of the constitution.