Comparative Constitutionalism and Rights: Robson's Saturday Evening Review

Being in Montreal the last two days for a workshop entitled "Queer Empire" at McGill University organized by Canadian scholars Kim Brooks and Robert Leckey has been quite a treat.  The presenters included American ConLaw Profs Kendall Thomas and Kenji Yoshino, as well as a more than a dozen of other scholars working in many disciplines and from various nations including Jaco Barnard, Jon Binnie,  Brenda Cossman, Margaret Denike, David Eng, Shohini Ghosh, Ratna Kapur, Jenni Millbank, Les Moran,  Chantal Nadeau, Jeff Redding,   Becki Ross, and Nan Seuffert.   I feel quite privileged to have participated in such a stellar event with amazing brilliance and collegiality - - - a rare combination.    It really was a workshop rather than a conference, so  I won't be reporting on the presentations; those not present, however, will have the opportunity to read the anthology when it is published next year.

The one regrettable, but certainly understandable, shortcoming of the workshop was that the organizers did not present their own work.  I've been familiar with the great work of Kim Brooks on both feminist tax policies and pedagogy for quite some time (see her papers on ssrn here), but was less familiar with Robert Leckey's work.   So I've just read his latest piece, Thick Instrumentalism And Comparative Constitutionalism: The Case Of Gay Rights, 40 Colum. Hum. Rts. L. Rev. 425  (2009), in which Leckey

intervenes in the burgeoning field of comparative constitutionalism. Adopting comparative constitutional research on gay rights as a case study, it addresses the scholarship that comparative constitutionalists are producing, including the methodology and underlying assumptions about constitutions. It criticizes the mainstream comparative work on gay rights for its methodological thinness. Such research views constitutions as rule-based, privileging the judgments of constitutional courts over the practice of constitutionalism in other sites of governance. Foreign examples are pressed into service to bring about change in a designated place. From the vantage of an activist or advocate, the comparative constitutional work on gay rights that is prevalent now may prove misleading. Undue emphasis on courts as the site of constitutional change directs efforts to litigation, away from other forms of activism. The literature also exaggerates the transferability of constitutional precedents by abstracting them from their discursive and cultural context. Moreover, the consistent selection of a handful of “success” stories from pioneering jurisdictions distracts from the potential lessons waiting in the “failures,” where reform efforts have foundered. From a scholar's perspective, the work is also unsatisfactory. By accepting the debates as currently framed, comparative constitutionalists fail to imagine transformations beyond same-sex marriage litigation and, consequently, fall short of their distinctive power as scholars. The article argues for thick instrumentalism as a mode of comparative constitutional scholarship. Thick instrumentalism combines commitment to a justice project for gay rights with a richer, more discursive and culturally sensitive understanding of the multiple sites in which constitutional rights are respected--and infringed.

This Article is a must-read for any scholar “doing” comparative constitutionalism.  It is especially important for American scholars, for too often the debate in the States seems to be a simplistic choice between exiling all foreign/international law or referencing foreign/international law.   Leckey demonstrates that the matter is not so easily resolved.  Moreover, Leckey’s invocation of “thick instrumentalism” is a refreshingly candid approach, as is his argument that there are distinct "roles of the advocate and of the scholar."  Leckey argues that dissolving the scholar/advocate distinction does a disservice to both roles, even as he insists on the importance of the integrity of scholarship.   

Leckey's article is yet another example of recent scholarship on comparative constitutionalism that uses "gay rights," and more specifically, same-sex marriage legal controversies, as an example.  But unlike so many other articles, Leckey makes clear that he has a stake in the outcome of these debates, as a scholar and as a person. And unlike many other articles, Leckey provides much guidance for other scholars engaging in comparative constitutional projects.

RR