Thinking Ahead
by David Atkins
Adam Liptak at The New York Times has a brave article about the declining influence of the U.S. Constitution as a model overseas. I’m sure he’ll catch huge grief for it on both sides of the political spectrum, but his point is an important one:
In 1987, on the Constitution’s bicentennial, Time magazine calculated that “of the 170 countries that exist today, more than 160 have written charters modeled directly or indirectly on the U.S. version.”
A quarter-century later, the picture looks very different. “The U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere,” according to a new study by David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia.
The study, to be published in June in The New York University Law Review, bristles with data. Its authors coded and analyzed the provisions of 729 constitutions adopted by 188 countries from 1946 to 2006, and they considered 237 variables regarding various rights and ways to enforce them.
“Among the world’s democracies,” Professors Law and Versteeg concluded, “constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. Constitution, only to reverse course in the 1980s and 1990s.
“The turn of the twenty-first century, however, saw the beginning of a steep plunge that continues through the most recent years for which we have data, to the point that the constitutions of the world’s democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II.”
There are lots of possible reasons. Our Constitution is terse and old, and it guarantees relatively few rights. The commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century may send the signal that it is of little current use to, say, a new African nation. And the Constitution’s waning influence may be part of a general decline in American power and prestige.
In an interview, Professor Law identified a central reason for the trend: the availability of newer, sexier and more powerful operating systems in the constitutional marketplace. “Nobody wants to copy Windows 3.1,” he said.
In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg seemed to agree. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.
The rights guaranteed by our Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,” “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” (Yugoslavia used to hold that title, but Yugoslavia did not work out.)
That’s one way to look at it. Another way is to point out that most other nations around the world have parliamentary systems, much stronger political parties, unicameral legislatures, and much softer divisions between legislative and executive branches. When America and NATO set out to rebuild nations after invading them, they don’t design the new governments on the American model, but on a parliamentary one.
In short, for all the unfair accusations that other social democracies receive for having sclerotic economies, what they don’t have is America’s immovable political system.
Don’t get me wrong: the Constitution is a brilliant and extraordinary document, the first to guarantee many rights, and an amazing effort at solving the institutional governmental problems that had vexed other civilizations for literally millennia. But it’s also a good idea to ask ourselves what is working, what is not working, what makes sense in a more globalized world, and what we might be able to learn from the success of others.
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