Author: Stephen Gardbaum

Title: The Myth and the Reality of American Constitutional Exceptionalism

Abstract:

This Article evaluates the widely held view that American constitutional rights jurisprudence is exceptional.  Its thesis is that while the conventional wisdom is largely correct about the content of a few specific constitutional rights, it is largely wrong about the more general structure of constitutional rights.  The perceived exceptionalism of this structure is threefold.  First, the United States has a more categorical conception of constitutional rights than other countries.  Second, the reach of constitutional rights into the sphere of private conduct is less than elsewhere.  Third, the United States rejects the types of positive constitutional rights―including social and economic rights―recognized by many other modern constitutions.  Once labels and assumptions are set aside, I aim to show that on each of these structural issues, far from occupying a comparatively extreme and lone position as is generally thought, the U.S. approach is actually well within the contemporary constitutional mainstream. Finally, I explain why debunking the myth of American structural exceptionalism matters.

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This paper is also published as IILJ Working Paper 2008/11. 

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