We the People, Part I: Them the Complications

Mike Rappaport’s Feb. 7 post flagged a New York Times piece by Adam Liptak, headlined “’We the People’ Loses Appeal With People Around the World.” The article summarized a study by David S. Law and Mila Versteeg, purporting to document the waning global influence of the U.S. Constitution since the 1980s. To summarize today’s and tomorrow’s post: the authors are probably right. But the picture is a great deal more complicated than their study (let alone Liptak’s summary) suggests. Moreover, and pace Liptak’s snarky subhead (“The Constitution has seen better days”), there’s no reason to worry.

Just the Facts?

The Law/Versteeg study is relentlessly empiricist. The authors coded and analyzed the provisions of 729 constitutions adopted by 188 countries from 1946 to 2006, and they considered 237 variables regarding rights and institutional arrangements (federalism, and presidential versus parliamentary government). After all that painstaking work, the only thing that the study demonstrates beyond peradventure is the fiendishly difficulty—even for very sophisticated, conscientious scholars—of doing empirical, large-n work in a field where every variable and parameter is endlessly contestable.

Scholars disagree as to whether Britain, New Zealand or Israel even had constitutions over the time frame, and what exactly they consist of. They disagree over what constitutes a federal system and how to distinguish presidential from semi-presidential systems. It’s a very good question whether the “constitutions” of totalitarian or authoritarian regimes should be included in a comparative study, or whether each country and constitution should be given equal weight. Decisions of this sort bear on the results. For example, mini-states are usually unitary rather than federal (for obvious reasons); they also tend to be parliamentary rather than presidential. The “declining influence”  of the U.S. model in these institutional dimensions may simply be an artifact of the proliferation of small independent states. Or maybe not. Without closer study, we simply don’t know.

One might think that rights (the authors’ preoccupation) may be less ambiguous than complex institutional variables, but they really aren’t.  For example, the authors’ Table 3 informs us that the U.S. Constitution does not contain a right to “freedom of movement.”  Quite arguably, however, the Privileges and Immunities Clause of Article IV does guarantee that right, albeit in the form of a non-discrimination guarantee; and in any event, the Supreme Court has recognized a “right to travel” for over 130 years. Perhaps, we should count only rights that are literally in the constitutional text; but then, Table 3 says that the U.S. Constitution contains rights to “privacy” and to “freedom of expression,” which are manifestly extra-textual. Multiply judgment calls of this sort by 729 constitutions and 237 variables: it’s impossible to know whether the errors wash out or compound. All this, mind you, before we know anything about the real-world scope and enforcement of all those rights.

In fairness, the authors recognize and flag many of the difficulties, and for the most part they take care not to overstate their conclusions. Alas, on the way from  academe to New York Times headline to tendentious blogosphere claptrap, the subtleties tend to get lost.

Don’t Worry

My sense, based on the literature in the field, is that Law-Versteeg are roughly right about the declining overlap between the U.S. Constitution and other countries’. However, it’s not obvious why  one should view other countries’ failure to mimic our rights and institutions as a decline of American constitutionalism. (Would our Constitution have “better days” if other countries mindlessly copied our arrangements and tried to make them work in places where they can’t?) In two particular respects, moreover, “declining influence” may reflect salutary feature of American constitutionalism.

  • The Law-Versteeg study and Liptak (quoting  justices from Israel and Australia) suggest that the U.S. Supreme Court and its jurisprudence—as distinct from the Constitution—no longer enjoy an international leadership role. This is unquestionably true.  The rise of powerful constitutional courts is one of the most striking features of global democratization. The currency of the juristocracy’s realm is the coinage of ever more expansive rights, and our Court has lagged in that regard.  In fact, the United States has been generally more resistant than other countries to the global trend to cede authority to bodies of doubtful democratic legitimacy—foremost, constitutional courts; but also central banks, international confabs and conventions, and stick-built bureaucracies in Brussels. It’s an interesting question why that is so, but it’s not obviously a bad thing.
  • Pause over the Law-Versteeg numbers (729 constitutions, 188 countries): they suggest that the average country had 3.88 constitutions over the six decades, with an average duration of 15.46 years. The actual average longevity may be closer to 19 years, and some of the churn reflects welcome waves or wavelets of democratization (e.g., after World War II, the end of colonialism, and the fall of the Soviet Empire). Still, the picture is still one of distressing constitutional and political instability. Perhaps, before we start obsessing over the mismatch between our constitutional rights catalogue and those of other countries, we should worry about the differential—and often lacking—capacity of constitutions to do what they are supposed to do: produce democratic stability over the long haul. No one should care whether Tunisia’s constitution-in-the-making will look like ours—so long as it promises to do that one crucial thing.

More on that subject tomorrow.