Mark Tushnet’s prolific and generative engagement with comparative constitutional law has been wide-ranging. One line of methodological critique that he and others have pursued has taken on large-n studies, noting that constitutional texts cannot be understood without interpretation, which necessarily varies across countries. This chapter takes on this critique and argues that if pushed too far, it undermines comparison entirely. The chapter argues that comparison is possible and that the degree of determinacy of legal texts is ultimately an empirical question. It notes that the recent literature on transnational judicial dialogue suggests that there is a good deal of common understanding of texts across contexts.
Citation
Mila Versteeg & Tom Ginsburg, Are Constitutional Texts so Indeterminate that We Cannot Interpret Them?, in Redefining Comparative Constitutional Law: Essays for Mark Tushnet, Oxford University Press, 30–41 (2025).