Comparative Constitutional Approach Essay

The Comparative Constitutional Approach

The Constitution of the United States of America (US) is the bedrock of the political and judicial system of a country which at the time founded represented a new direction of governance not practiced for nearly two millenniums. The US became the first democratic republic in modern history with a Constitution that came into force in 1789, deriving more ideals from the Romans or the Greek Mini-States that from any political system in place around the world at the time. It is undeniable, even by the strictest constructionist or originalists that the U.S. Constitution borrowed concepts not only from famous ancient philosophers like Aristotle or Cicero but also from modern political thinkers like Locke, Montesquieu

Justice Clearance stated very clearly that there is no need to rely on the foreign Supreme Courts when there is an established jurisprudence in the United States addressing questions of law regarding constitutional interpretation. Knight v. Florida, 528 U.S. 990, 990 (1999). Every country has different needs and circumstances. Constitutional provisions are not completely arbitrary political constructs that are idiosyncratic to a particular country and a particular era. There are similarities among the constitutions in many areas and of course there are normative principles that are universal for all peoples and constant over all time. But despite this, the reality is when a Justice jumps to foreign jurisprudence without first attempting to find the solution internally based on a country that has over 200 years of judicial experience, they are undermining the system credibility, especially in a legal system that weighs heavily on prior

The nature of the US Constitution had allowed the country to reinterpret the Constitution over a span of time and adapt it to the modern context. What constitutes “cruel and unusual” under the eight Amendment is very different now than when the Constitution was adopted, some call this a living Constitution. The difficulty would be to adapt a positive right, for example an affirmative action as implemented in the German Constitution and apply it to the United States in the context of the fourteen Amendment “equal protection clause”. Different constitutions call for different national approaches in interpreting and applying the law of the land, and foreign jurisprudence should be narrowly tailored to the needs and constitutional principles of each individual country. For example, a country that suffers from an endemic problem with corruption could be more rigorous in punishing offenders in comparison with a country that might have a great issue with sexual violence. The role of the constitutional court is to interpret the constitution in behalf of the citizens of the country, not of a foreign nation that might have other needs or political doctrines. At the end the culture generally shapes the constitution over time, they vote for the legislative, the executive branch which appoints the judicial Supreme Court