How To Study Constitution-Making: Hirschl, Elster, And The Seventh Inning Problem

Abstract

It is very difficult to comment on a book with which one fundamentally agrees. Ran Hirschl's magnificent Comparative Matters is not only a deep work of intellectual history, but it also makes a powerful methodological argument. Hirschl calls for integrating the study of comparative constitutional law into a broader field of comparative constitutional studies, in which rigorous but pluralistic social sciences are deployed to help us understand problems. Who could possibly object? Certainly not I.Hirschl's clarion call is to expand our frameworks outward in three ways. First, he asks us to expand our focus geographically, away from the established democracies of Europe and North America; this is something that the field has belatedly begun to do in the last few years with superb results.1 Second, Hirschl wants the field to expand methodologically, away from narrow lawyerly doctrinalism toward truly interdisciplinary inquiry, and he points out the many contributions of social scientists to the endeavor.2 Third, he asks us to expand our temporal framework.3 Hirschl's own methodology of returning to earlier exemplars of comparison, ancient and modern, is itself an example here. Hirschl also points out that, within any particular system, we ought not be limited in our focus on the moment courts decide cases but rather should take a broader frame. Instead we ought to look at moments of constitutionalization, constitution-making and constitutional politics beyond the judiciary. This is another way of expanding the temporal frame, away from the moment of judicial decision.Let's begin with this last point. With apologies for the American parochialism, I have characterized the narrow focus on court decisions the "Seventh Inning Problem" in Comparative Constitutional Law.4 The analogy is to a baseball fan who pays overly felicitous attention to a late inning. Imagine yourself as a fan going to watch the Toronto Blue Jays with a good friend; let's call him Shai. You arrive very late, at the top of the seventh inning. You see which team is batting, and so can deduce who is the home team, since the home team in baseball always bats in the bottom half of the inning. You look at the scoreboard and see the score, which allows you to ascertain who is winning and losing. But you do not know how the score came to be that way or why.You proceed to watch the seventh inning. As baseball innings go, the seventh is fairly important-not just in the top ten but somewhat higher. Sometimes a team will score a decisive comeback run; other times a team will shut out the other side and close in on victory. (Indeed, this past October, the aforementioned Toronto Blue Jays played one of the most remarkable and important seventh innings in baseball history, winning the National League Championship Series with a three-run comeback.5) It is also the case that the seventh inning has some aesthetic or theatrical advantages over other innings. The inning is always accompanied by a rousing ritual of community, in which the whole stadium joins in the classic song "Take me out to the ballgame." You find this experience stirring and entertaining, as a rare opportunity to join with masses of others in a collective activity; you might also note to yourself that the overly formal civic hymn "God Bless America" is not sung in Canada.Imagine that you as a fan watch the inning as it plays out with great excitement. One team scores some runs, perhaps taking the lead from the other. The fans cheer, the tension builds, perhaps the inning ends with a dramatic play in the field. Then . . . you leave. You walk out of the stadium. Maybe you hear the final score of the game on your car radio on the drive home. Maybe you don't. But either way, you do not observe the outcome first hand.The absurdity of this example is not too far from where we started as a discipline in recent decades. Focusing too much on court cases in the constitutional "game" has precisely the same structure as the baseball fan who watches only one late inning. …