The possibilities of comparative constitutional law

This Article examines the ways in which comparative constitutional law can appropriately affect the interpretation of the U.S. Constitution. Comparative constitutional law has been offered as a guide to constructing new constitutional provisions; the argument for using it to interpret the existing Constitution is more complex. The Article describes the way in which existing modes of constitutional interpretation may license reliance on comparative constitutional law. It then identifies three ways in which constitutional interpretation might employ comparative material. The functional approach identifies functions performed in two or more constitutional systems and examines how U.S. practice might be improved by using devices developed elsewhere that perform the same functions that existing U.S. constitutional institutions perform. The Article shows how reflection on institutions called "quangos" in Great Britain might assist our understanding of free speech problems arising from government decisions to subsidize some, but not other, activities The expressivist approach treats constitutions as expressions of a nation's constitutional culture. The Article argues that understanding the U.S. Constitution in such terms illuminates controversies over hate speech regulation. Finally, the approach the Article calls "bricolage" points to the haphazard ways in which constitutions are drafted and argues that this casts doubt on a particular form of rigorous textualism as a method of constitutional analysis.