Transnational Perspectives on the U.S. Transnational Law Controversy

This Symposium celebrates the extraordinary career of Aharon Barak, with particular emphasis on his delineation of a constitutional jurisprudence of rights. In the United States, high praise for President Barak has prompted intemperate critique. Why are the critics so alarmed that Americans might be interested in Barak’s constitutional thinking? Perhaps they realize that after decades of effort, and considerable tinkering, the proponents of originalism have failed to demonstrate the wisdom and institutional legitimacy of their constitutional paradigm. Their views prevail only because their interlocutors, the advocates of a living constitution, despite having produced withering criticism of originalism, have similarly failed to demonstrate the superiority of their paradigm. The originalists claim victory, saying that they alone have a theory. They have a point, but only within domestic circles. It is time to open up the originalist critique of judicial activism, and the related debate of judicial recourse to transnational legal resources, to transnational perspectives. The study of President Barak’s approach to constitutional law and adjudication provides an excellent first step on a journey that should include study of other great rights-protecting justices and sophisticated legal systems that endorse rights-based democracy, the juridical embodiment and theoretical exemplification of the post-World War II “rights revolution.” Such study will generate many insights, including the good news that the Warren Court’s distinctive mode of rights adjudication, premised upon a living constitutional paradigm, has enjoyed an intense and flourishing afterlife on the world stage. This essay has five parts. Part II examines the constitutional paradigms that frame the current U.S. debate on many constitutional questions, including judicial activism and judicial recourse to transnational legal materials. Part III analyzes three assessments of President Barak’s work by leading U.S. commentators to demonstrate that their strong desire to dismiss him an activist undermines, distorts, and obscures legal analysis generally and the debate on transnational law specifically. Part IV presents what Barak’s critics have labored to obscure: his sophisticated understanding of constitutional law and adjudication in respect to rights protection, especially its emphasis on the rationality of proportionality analysis. Part V delineates the larger dimensions of post-WWII constitutional thought, to which President Barak has made an invaluable contribution. Part VI concludes by inviting transnational study to deepen understanding of U.S. constitutional theory, history, and institutional roles generally and the current debates on transnational legal resources in particular.

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