Robert webber u chicago1/18/2024 The recent crisis of constitutional democracy and the phenomenon of democratic backsliding has, for example, led to an outpouring of comparative literature. 6 Now that comparisons between constitutional orders are commonplace, greater attention is being devoted to a different question: how is comparative constitutionalism to be conducted? 7 The question implicates tasks that stretch far beyond the judicial citation of foreign legal materials. Could a comparison between rules and developments in country A and country B occur in an intelligible and meaningful fashion? Though comparative constitutional law was not new to the American legal academy, it had declined in importance over the years, thereby requiring the field to be somewhat reborn. In the late 1990s and early 2000s, the question - crudely put - was whether we could compare the constitutional law of different nations. Though the study of comparative constitutional law may not quite require a defense at present, much remains to be settled. 4 Today, it no longer seems necessary to demonstrate, as Professor Mark Tushnet once did, “the possibilities of comparative constitutional law.” 5 We have seen the publication of scores of articles and books that compare constitutional systems and elaborate reflections by judges over the nature and form of comparative judicial reasoning. 3 Many years on, there is still much to be debated - including the purpose and potential benefits of judicial engagement with foreign law - but “comparative constitutional law” has unquestionably emerged as a field of study in its own right. Foreign law had, after all, been relied on in significant cases like Roper v. 1 At the time, the matter was controversial and invited the interest of both judges and scholars. Nearly a generation ago, Justice Scalia and Justice Breyer debated the legitimacy and value of using foreign law to interpret the American Constitution. New York, N.Y.: Oxford Uni-versity Press.
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