Decline Watch: Is the U.S. Constitution going out of style?

Posted By Joshua Keating Thursday, February 9, 2012 - 2:03 PM Share

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

Brendan Smialowski/Getty Images

EXPLORE:DECLINE WATCH
 

10JACOBF

5:10 PM ET

February 9, 2012

Let's put it this way...

The American Constitution has lasted longer than any other. My guess is that recent fluctuations of whether other constitutions are "directly or indirectly" modeled off it either means the resemblances have been amended into oblivion, rewritten altogether, or had their government change on them completely. As an example, France went revolutionary shortly after the US but (comparatively) their fecundity of constitutions since that time looks like a basket case.

But then again if Ginsberg like the South African constitution that much I suppose a good counterpoint to that is that not everything about a country needs to be written in one document. The United States has its laws and "positive rights" in both constitutional and extra-constitutional mechanisms. Perhaps comparing constitutions like apples and oranges, comparing governmental legal systems in their entirety is the best thing to do for this case.

 

WARRIS

8:05 PM ET

February 9, 2012

The U.S. Constitution is one the superlative document to be draf

I am sick and tired of liberals lambasting the US and its values every single day. And now they want to talk bad about the constitution of the United States of America. The liberals are too much now, we can’t tolerate them in the U.S. anymore. When it comes to the constitution, it is my Koran, Bible or whatever you call it. The lefties and liberals must watch their mouth next they say something bad about the U.S. constitution because next time, it won’t be called occupy Wall Street, it will be called Occupy the liberals.

 

SABABA03

7:14 PM ET

February 10, 2012

speaking of critisim.

we always criticize those elements which we love the most. It is called constructive criticism. Nothing wrong with calling to update a 260 year old document to reflect the values & standards of today as well.

No need to get upset. The author was pointing out his opinion that, some amendments in US constitution need to be revisited. Heck we have dome it 27 times already, so why not re-write them all in one clean document, get rid of others which no longer the publics best interest and add new one.

I know you brought the Quran by way of reference, to demonstrate your total and unquestioned devotion to the constitution. Notwithstanding, My good man, You would NOT wish U.S. Constitution be treated like the Quran. Because with all its attribute. The Quran also commands the beheading of anyone who questions the source of this document.

 

JAC323

1:06 AM ET

February 10, 2012

Is the constitution quaint?

Left, right does it matter? Maybe it is the elites that want the constitution gone, it would be much easier to rob you. The constitution is not "quaint" for the average person.

 

FORLORNEHOPE

9:15 AM ET

February 10, 2012

Praise from a Brit

IMHO, and writing as a proud subject of a Constitutional Monarch - long may she reign, the Constitution of the United States is one of the greatest human achievements of the last millenium - long may it provide an example to the rest of the world.

 

HAULROAD

2:25 PM ET

February 10, 2012

Far from it

I echo my British Cousin's remarks regarding the US Constitution being one of the most remarkable accomplishments in human freedom of the past 1000 years.

I am sick and tired of op-ed pieces saying it is in decline. They tear down the very freedoms they enjoy, and are too small minded to appreciate the enduring place of INDIVIDUAL FREEDOMS in this modern world.

Individual freedoms diffuse political power among the people. Only despots and tyrants are afraid of this.

Long may our Constitution endure. Not just the paper, but the idea in our citizens and the people around the world.

 

SABABA03

5:50 PM ET

February 10, 2012

Freedom & Liberty.

1. Every democracy around the world provides for freedom & Liberty to its citizens - including your British cousin.

People in Europe Israel, Australia and New Zealand have the same freedom of expression as you do here in US. The difference is that, other citizens, know very well they have it, and see it as part of basic human right. Therefor, they don't see the need to talk about it, nor repeat it in every second sentence, as Americans do.

2. The Op-ed does not bash the Constitution, nor calls for its abolition. Rather, it advocated that, instead of keep "patching it" with more (27) Amendments & Amendments, maybe it is time to re-write it withl all those provisions which have endured the test of time (the first Amendment), and include others elements which weren't available to citizen back in 1776. That calls "constructive criticism".

 

MORANI YA SIMBA

3:32 PM ET

February 10, 2012

The U.S. constitution has two direct flaws in my opinion

which are (1) that it indisputably make immigrant citizens political second-class citizens via the natural born clause. It is the only culturally Western country to discriminate against an identifiable segment of its citizenry based on birth circumstances, in the political system. It may sound extreme but is certainly possible to argue that this is a form of "petty apartheid" (if you consider that extreme consider first how people would respond if it explicitly mandated that the president be white, Christian, male or even wealthy. Then consider how exactly how people choose where to be born more than they do their race or gender.)

And (2) it has sustained a development whereby the chief executive, being one individual, is more powerful than a legislature of many hundreds elected senators and representatives. This comes close to electing a four year emperor of immense powers and answerable to none for up to four years. Even when the president is less powerful than some imagine and cannot make laws himself, he can sign executive orders that often amount to laws and he is on a very long, and dangerous leech for a democratic leader until election comes close. Even the mightiest prime minister must answer to a parliament and it never harmed a well-intended chief executive to be reminded that he had no monopoly on his high office, even on a daily basis.

Therefore I think it hardly regrettable if the US constitution is less imitated today than in former years. But all this said it remains an impressive and even inspiring document to the progress of man. But no word is ever the last in history. Not even for the U.S. constitution.

 

TYSAYSWHAT

4:22 PM ET

February 10, 2012

Your first point

Why would I choose to vote for a foreigner to lead my country? Just because they chose to become a citizen doesn't mean I would choose to elect them as leader. The natural-born clause promotes someone who is truly an American, not just someone who might hold loyalty to another power which may or may not be friendly, towards the country as a whole.

 

HAULROAD

5:33 PM ET

February 10, 2012

Exactly the reason for the natural born citizen...

It is not a race or prejudice issue. As a nation of immigrants, their children are free to become President.

As an aside, does anyone else think the use of the term "Apartheid" is losing its meaning as people increasingly use it to describe situations such as this?

To quote a recent post on Tom Rick's blog: "C'mon man!"

 

SABABA03

6:00 PM ET

February 10, 2012

Another flaw

In any parliamentary government, when the leader (PM) loses the confidence of the legislature (by way of the majority of the citizens), he is tossed out with a single vote of "no-confidence", and replaced with another one - in that very afternoon.

In U.S. we are stuck with the same President, even if proves to be dysfunctional figure.

Another flaw, is the provision of two party system. When the same party controls the executive, both Legislative houses, and majority in the Supreme Court - we end up with virtual dictatorship. rendering "freedom", "Liberty" and "choice", as sad joke to ponder.

 

MORANI YA SIMBA

5:19 AM ET

February 11, 2012

"Why would I choose to vote for a foreigner to lead my country?"

I am happy you phrase it that way because you prove my point exactly: "naturalized" citizens are not considered "real Americans" but rather "foreigners." And the constitution implicitly defines them as less that full Americans. It is a barbaric clause and you, sir, are a bigot. The natural born clause is exactly discrimination and prejudice. "America the free?" I guess it really is "America, show me your birth certificate." The US constitution was modern and progressive for its time but rather anachronistic today, this clause being the last remnant of the old slavers' constitution. I expect that the US constitution will enjoy more popularity abroad but eventually time will run out for it. Dinosaurs too looked invinsible once. What will not evolve, will not last. The US should upgrade it's constitution and begin by removing this offense to any American born abroad. Feel free to comment further, bigots :-)

 

STEVEH.

6:37 AM ET

March 6, 2012

I'm going to give you words

I'm going to give you words that mean something - As science evolves and puts mankind to wonder about the nature of man and sexuality at large and the function of health as you live but without question, not in theory, and then miraculous cures in meds, a question of the US Constitution validity maybe put to a test; Further more, as the nature of man will be changed possibly to a more objective status in the ways of living, a major revolution may occur, and I wonder how Americans will able to handle such changes. I am an optimist about romantic values from a more original basis. Will see!!sciatic nerve pain

 

SABABA03

5:31 PM ET

February 10, 2012

Even the 10 Commandments needs some revision

Constitutions, by most part, they reflect the era in which they were ratified - so the U.S. Constitution .

When it was written, the drafters were talking about, human rights, Freedom & Liberty, while they were treating some people as properties, owned and traded like domestic animals. ( I am aware of the subsequent Amendments which addressed it)

Democracy means, citizens need not sleep with loaded gun under their pillow. Get rid of the 2nd Amendment, with it the cowboy gun mentality in this country. One of the main reasons for having the highest crime rate then any county on earth, is that, everyone thinks the other guy carries gun, directly relates to this malign siege mentality.

Rewrite the constitution in which, it includes the realities and standards of today as well,

Include more rights for citizens to receive basic needs in which,t by themselves they are no, able to provide. such as access to basic health care.

 

HAULROAD

5:39 PM ET

February 10, 2012

Your opinions are just that...

American freedoms, described in the bill of rights are at the core of what it means to be American.

People that talk about removing people's rights (mentioned in any ammendment) are probably not from America, or understand that individual freedoms require individual responsibility.

I find it hard to believe that you honestly think America has the "highest crime rate" in the world...did you read that on the internet by chance?

I'd way rather take my chances in Chicago than South Africa. (Or parts of the UK these days).

 

MARTY24

11:21 AM ET

February 13, 2012

Oldest still-functioing constitution

10JACOBF makes a factual error that throws a lot of light on the issue addressed in the article. The US Constitution is modeled on that of the Commonwealth of Massachusetts, written in 1779, and in effect since 1780, making it the oldest constitution still in force. The Massachusetts Constitution includes 30 articles in the Commonwealth's "Bill of Rights", three times as many as the US Bill of Rights. (The very first of those rights resulted in the effective abolition of slavery by judicial action.) It has been amended at least 120 times, with more added essentially every legilative term.

The US Constitution is actually based on a compromise between the more extensive constitutions of states like Massachusetts, which are being emulated by newer nations, and those of the southern states which were less expansive on individual rights. The US has a Bill of Rights because states like Massachusetts insisted that one be included at the federal level.

 

MORANI YA SIMBA

3:24 AM ET

February 14, 2012

Haulroad

"People that talk about removing people's rights (mentioned in any ammendment) [sic] are probably not from America,"

You're pretty busy deciding who's American and who's not, Haulroady. You are a classic birther in the more profound sense of thinking it should matter if Obama was born in America or not whether you believe he was or not.

 

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