Questions about the efficacy of the Bill of Rights cry out for serious comparative legal scholarship. Robert Ellickson and Frank Easterbrook suggest that one might approach these questions by looking at different state constitutions.1 One might also look more seriously at the different constitutional regimes around the world, and try to draw some judgments about what impact, if any, different types of constitutional arrangements have on individual rights. We have heard expressions of skepticism about this approach,2 but there has been very little serious comparative scholarship by constitutional law scholars in this country. The scholarly tradition in America has been extremely myopic, obsessively concerned with Supreme Court cases and the history of our own constitutional development; very little attention has been given to constitutional developments elsewhere to determine the actual effect of institutional differences.
I readily acknowledge the difficulty of doing comparative work in this area. There are serious definitional problems, such as compiling the list of liberties or rights to use as a bench mark, deciding whether the scope of rights is more important than the security with which the rights are maintained, and determining the importance of how rights are protected. With respect to the latter question, do we think exclusively in terms of judicial protection through litigation, or do we entertain the possibility that rights can be maintained in other ways? To make any headway in answering questions like the one before the panel, it would be useful to identify some institutional factors that vary across cultures and that could be studied to see to what extent they make a difference.
Thomas W. Merrill,
The Role of Institutional Factors in Protecting Individual Liberties,
Harv. J. L. & Pub. Pol'y
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/836