- By Joshua Keating
Joshua Keating was an associate editor at Foreign Policy
On Monday, we disussed Ruth Bader Ginsburg’s now-controversial interview with an Egyptian television station in which she suggested that the U.S. Constitution may not be the best guide for a country writing its own founding document in the 21st century and suggested that the South African constitution, which includes both more enumerated rights and "positive" rights — such as healthcare and economic equality — might be a better fit.
It turns out this may be an increasingly popular view. The New York Times‘ Adam Liptak summarizes a recent study which found that fewer democracies have looked to the U.S. Constitution as a model in recent years:
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.
“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. The United States 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.
I’m not sure I buy that this is a sign of declining American power. Rather, it seems more like adaptation over time. The most controversial legal battles of American history have involved the interpretation of non-specific language in the constitution — whether the bill of rights implies a right to privacy, whether the first amendment mandates a complete seperation of church and state, whether firearms laws are prohibited by the second amendment.
If the U.S. were writing a new constitution today, it would likely address these issues in more specificity, and make reference to a number of modern. political issues that weren’t concerns in the 18th century. It shouldn’t be a surprise that new democracies are attempting a bit more specifity and modernity in their documents. (There is a danger in too much specificity, as the EU’s unwieldy, 219-page monstrosity attests.)
The New Yorker‘s Hendrik Hertzberg is skeptical about the study, but actually makes a stronger case that U.S.-style constitutions have gone out of favor.
The problem is that the study focusses almost exclusively on rights—the individual and civil rights that are specified in written constitutions. But it almost totally ignores structures—the mundane mechanisms of governing, the nuts and bolts, which is mainly what constitutions, written and unwritten, are about, and which determine not only whether rights are truly guaranteed but also whether a government can truly function in accordance with democratic norms. Or function at all with any semblance of efficiency, effectiveness, and accountability.
Even in terms of structure, the U.S. model isn’t particularly popular. A U.S.-style chief executive is a popular feature among Latin American governments, but over the years this has proven problematic by facilitating the rise of autocratic caudillos. Far more popular today are "parliamentary systems with some form of proportional representation."
But again, this isn’t really a new phenomenon — there hasn’t been a new democracy with an American-style presidential system for over a century so it’s hard to attribue it to a loss of prestige.
Hat tip: Daily Dish