In this Article I argue that the reductionism of global models of constitutional rights is problematic. Despite how they are labelled, these theories are typically modelled on the domestic constitutional law of an exclusive group of Western countries. The criteria for selecting these countries are not usually clearly or satisfactorily articulated. They then go on to present a simplistic version of the domestic constitutional law of the countries they are describing. The combined effect of these analytic moves raises questions about what is lost in the process, and in particular, whether these frameworks allow for adequate recognition of the claims of those seeking – and achieving – social change within a constitutional democracy. Drawing on insights from critical legal studies, and in particular scholars who seek the decolonization of constitutional law, I argue that the utility of global theories of constitutional rights depends on their ability to recognize and give voice to the forces of social change. Otherwise, they risk being descriptively inaccurate and even damaging to the broader causes they seek to advance.
I am grateful to Iddo Porat and Gila Stopler for organizing a workshop on global constitutionalism at the Clough Centre for the Study of Constitutional Democracy, Boston College, in December 2016 at which this article was presented. I also acknowledge their insightful suggestions, provided in their capacity as editors of this Special Issue. I am grateful to Vlad Perju, the Director of the Clough Centre, for hosting us in Boston. Thank you to Moshe Cohen-Eliya for commenting on my paper, and to the other workshop participants for their helpful questions and interventions. I am also grateful to Leo Russomanno and Jena McGill for useful conversations about the ideas discussed in this paper, to the anonymous reviewer for pushing me to sharpen my arguments, and to Kai Möller for generously agreeing to be my interlocutor.
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