18 - American Constitutional Exceptionalism, Constitutional Identity, and Democracy

Summary

During the era of democratic optimism that took off in the wake of the Second World War, scholars believed that democracy worked tolerably well in polities that exhibited wide institutional variation. Comparativists consequently focused on courts, rights, and constitutional values while sharply disagreeing over the extent of American exceptionalism. In his seminal contribution to this literature in A Lighter Touch: American Constitutional Principles in Comparative Perspective, Gary Jacobsohn provocatively argues that the United States is not a paradigmatic example of a nation built on constitutional values. Jacobsohn concludes that the American Constitution applies with a “lighter” touch than in many of its peer democracies which might prove problematic were the Constitution to undergo a stress test. With the advent of democratic erosion in the twenty-first century, scholars have turned pessimistic about democracy’s prospects. This paper argues that scholars will need to focus on structural issues – rather than courts, rights, and values – and the role that constitutional design may play in stemming or facilitating democratic erosion in America. The problem is not that the American Constitution applies with a lighter touch, as Jacobsohn argues, but that it applies with a heavy, almost Trumpian hand under the conditions of contemporary American democracy.