December 2008 Vol. 107 No. 3 THE REVIEW

The Myth and the Reality of American Constitutional Exceptionalism

Stephen Gardbaum

This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional rights resulting in their lesser reach into private conduct. Third, the U.S. Constitution is exclusively a charter of negative rights and so rejects the types of positive constitutional rights, including social and economic rights, that many other modern constitutions recognize.

The thesis of the Article is that while the conventional wisdom is largely correct about American exceptionalism regarding the contemporary content of a few specific rights, it is largely wrong regarding the general structure of constitutional rights. Once labels and assumptions are set aside, I show that on each of the three identified structural issues, far from occupying a relatively extreme and lone position as is generally thought, the U.S. approach is actually well within the contemporary global constitutional mainstream. Debunking the myth of American structural exceptionalism matters for several important and timely reasons. These include undermining one prominent argument against the federal courts using foreign constitutional decisions and also the idea that there are distinctive threshold barriers in the United States against judicial implication of a few social and economic rights.

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