Comparative Approaches to Constitutional History

In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional courts or apex courts that engage in constitutional review: those of the U.S., Canada, Germany, Australia, India, Hong Kong, Malaysia, and Singapore. Because our selection of cases aims to be illustrative, we do not attempt to draw firm conclusions about the global use of constitutional history. Still, the qualitative evidence that follows hints at what might well be universal within constitutional judging: (1) the significance of history broadly understood, and (2) the limits on history’s reach into contemporary rights conflicts.