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Political Support And Structural Constitutional Law, David Landau

Scholarly Publications

The field of comparative constitutional law has paid insufficient attention to judicial decisions on structural issues. This Article seeks to begin the process of constructing a comparative analysis of structural constitutional jurisprudence. Using both theoretical analysis and a case study, it seeks to demonstrate that courts are more likely to be successful in their programs of structural constitutional law when they enjoy support from other political and social actors. This simple point has significant implications for constitutional theory. First, it suggests that the structural safeguards theory long assumed in United States constitutional law may have only limited applicability. Under common …

Selective Entrenchment In State Constitutional Law: Lessons From Comparative Experience, David Landau

Scholarly Publications

While the U.S. Constitution has long been viewed as an outlier along a number of dimensions, recent work has explored the similarities between comparative constitutionalism and the constitutionalism of the states. Scholars have noted that state constitutions look more like the constitutions often found abroad along several key dimensions. Most importantly for our purposes, they are often long, detailed, and specific documents that go well beyond merely setting up a basic framework, and they are often relatively flexible and easy to amend. In contrast, the U.S. Constitution seems unusually sparse and rigid.

This essay argues that the recent work on …