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02/08/2012

The Declining Influence of the U.S. Constitution?
Michael Ramsey

At Prawfsblog, Paul Horwitz: More on the "Declining Influence of the U.S. Constitution."

Horwitz comments on this NYT column by Adam Liptak: ‘We the People’ Loses Appeal with People around the World.  Liptak's column in turn relies on this  article by my former colleague David Law and Mila Versteeg: The Declining Influence of the United States Constitution (forthcoming, N.Y.U. L. Rev. 2012).  Here is the abstract of the Law & Versteeg article from SSRN:

It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries.

In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. On the basis of this data, we are able to identify the world’s most and least generic constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream.

The fact that the U.S. Constitution is not widely emulated raises the question of whether there is an alternative paradigm that constitutional drafters in other countries now employ as a model instead. One possibility is that their attention has shifted to some other prominent national constitution. To evaluate this possibility, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some support in the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution-making in other countries. This influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, South Africa, or India.

Another possibility is that international and regional human rights instruments have become especially influential upon the manner in which national constitutions are written. We find little evidence to indicate that any of the leading human rights treaties now serves as a dominant model for constitutional drafters. Some noteworthy patterns of similarity between national constitutions and international legal instruments do exist: For example, the constitutions of undemocratic countries tend to exhibit greater similarity to the Universal Declaration of Human Rights, while those of common law countries manifest the opposite tendency. It is difficult to infer from these patterns, however, that countries have actually emulated international or regional human rights instruments when writing their constitutions.

The topic has various implications for originalism.  Here's one that strikes me.  Though much of the focus is on rights, there is a structural story as well.  The central structural elements of the original Constitution are separation of powers and federalism.  We periodically re-live debates over how aggressively to enforce these original structural provisions.  (The pending struggle over the constitutionality of the health care individual mandate is the current highlight).

My impression is that neither structural aspect of the U.S. Constitution is widely followed worldwide.  Apart from Latin America, most systems are parliamentary rather than presidential.  Strong commitments to federalism are relatively rare as well, although there are notable exceptions.  Consistent with the Law and Versteeg article, my sense is also that newer constitutions are even less likely to adopt these structural features.

The challenge for structural originalism is twofold:  Why are these features, so warmly celebrated by our framers, not widely copied?  And, has the United States' relative success as a nation come because of, or in spite of, these relatively unusual features?  I know there is a fair amount of scholarship on this issue (especially in the political science literature on presidential versus parliamentary systems), but there seems room for more, particularly on the question of federalism.  It should be, at minimum, somewhat relevant in deciding how much energy to invest in defending these structural features of our system.