Many explanations have been suggested for the divide between the European (especially the German-based) and the American models of constitutional law and for the unique character of American constitutionalism in particular.
In this post, based on a recent article, we would like to explore a new explanation for this divide. Our argument would be that the gap between American and European constitutional law stems partly from the fact that American constitutional law developed well before American administrative law, whereas European constitutional law developed well after European administrative law. This historical fact, we shall argue, has created a different conception of constitutional law and of constitutional rights which keeps informing both systems to this day.
The circumstances in which the American Constitution was adopted point to a particular conception of rights in which text has a central role. We will term this conception the “Constitutional Model of Rights”…
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