On Using the US Constitution as a Model
Yes, the US Constitution has been the most successful such document in human history. That does not mean it is a good template for other countries.
Doug Mataconis notes that a minor brouhaha has erupted in some rightward corners over the fact that Justice Ruth Bader Ginsburg said the following:
Asked by the interviewer if she thought Egypt should use the Constitutions of other countries as a model, Ginsburg said Egyptians should be “aided by all Constitution-writing that has gone on since the end of World War II.”
“I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa,”
First, I would note that it is silly to take a statement given in a conversation tone that is qualified with “I might” and treat it as some ironclad declaration.
Second, while I suppose that one might get one’s patriotic hackles up because she is suggesting that the US Constitution isn’t the very paragon of constitutionalness, a pause for thought ought to disabuse the thoughtful person (yes, I know) of the notion that the US Constitution is an obvious model for other countries to adopt.
One fact that immediately strikes me about the notion that US Constitution ought to be some sort of standard blueprint is that the US Government certainly hasn’t thought so itself over the years. The US government has had a direct hand (sometimes moreso than others) in the drafting of the Japanese, German, and Iraqi constitutions. All of these document deviate rather substantially from the US Constitution.
Of course the reason this is the case is that any given political circumstances may require very different institutional needs. Some countries have good reason to adopt federalism, others do not. Likewise specific US constitutional structures and practices such as presidentialism (i.e. separation of powers), bicameralism, lifetime tenure of judges, the electoral college, etc. may or not be good ideas for a specific situation (or, indeed, good ideas at all*). These are all factors that require thought and design for a specific circumstance, not rote copying.
We also have to remember that one of the most remarkable aspects of the US Constitution is that it is arguably the first constitution of its kind.** Its longevity alone, with some bumps in the road, is amazing. There is much good to say about the document, but going first means some wandering in the dark and guesswork. There has been a lot of institutional innovation and understanding that has developed over the last two and a quarter centuries. Put it this way: Henry Ford may have pioneered mass production and automobile construction, but there are better modern examples to examine for someone starting out to build a new factory now. While some of Ford’s principles no doubt are still relevant, we understand them better after a century of use.
I am guessing, by the way, that many people who have substantial pride in the US Constitution and who bristled at Ginsburg’s suggestion probably haven’t even read the entirety of the document (let alone having done so multiple times). Beyond that, the odds that they have read the South African constitution (or really, any other constitution whatsoever) has to be almost zero. One aspect of this conversation that truly irritates me is that is founded not on any kind of rational, empirical, scholarly understanding of the questions at hand, but rather on a purely jingoistic kneejerk reaction.
This topic is rather near and dear to me, in fact, as not only is the area of institutional design in democracies (which is reflected rather heavily in constitution writing) my major area of study for a couple of decades now, I am currently in the middle (indeed, well beyond the middle) of a co-authored work that touches on this very question of comparing constitutional order across democratic cases (including, oddly enough, the US and South Africa). The honest truth is that there are any number of institutional innovations that have taken place over the last two centuries, and there are more models than just ours. Further, the very nature of the US Constitution is that it is a fairly vague document. As such it actually makes for a poor model as a result. It does not, for example, actually tell us all that much about the functions of the Supreme Court. Most more recent constitutions are far more fully developed on a host of issues, including basic rights. As models go there actually are better examples than our own (given that a more iterated constitution would make, by definition, a more complete template). But to know this requires an interest in knowledge and analysis coupled with actually, you know, reading other constitutions.
This all reminds me a quotation from Seymour Martin Lipset: “…it is impossible to understand a country without seeing how it varies from others. Those who know only one country know no country.”
Too many American know the US (and poorly at that, often) and think that they know all they need to know to make broad, global political judgments when in fact they do not have enough information to adequately evaluate the US, let to make statements about the rest of the world.
It also reminds me of something I wrote earlier today in another comment thread: The US is, and has been for some time, one of the most powerful countries in all of human history and yet we can be a strangely insecure lot.
*The electoral college, as I have argued before is an ad hoc mess that does not even work as intended and by no means should be copied by anyone else. I am also not so sure that lifetime judicial appointments are a good idea.
**The Articles of Confederation was actually more an agreement amongst 13 sovereign states and therefore not, strictly speaking, a national constitution. Prior to the US Constitution the closest example would be state constitutions written in 1776 after the Declaration. Previous famous document, such a Magna Carta, were not constitutions. For those interested in this topic I would highly recommend: Elkins, et al. The Endurance of National Constitutions. The book is written to an academic audience, and gets a but political science-y in places, but I think it is a pretty accessible text.
That’s all very fine, Steven, but it’s a bunch of logic and facts. As you know the market for those is extremely limited.
@michael reynolds:
This must be why OTB has yet to break into the big money side of the blogsphere.
You’re completely missing the point because you obviously have your own points to score about stupid patriotic Americans. Look at what you quoted:
“I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa,”
She’s not saying “might” or “might not” look to the U.S. Constitution. She would not look to the U.S. Consitution, not in a box, not on fox, and could not would not on the rocks. That’s what is annoying people. Its not even worth considering?
Things to consider per Justice Ginsberg in the year 2012:
South African Constitution: Maybe.
U.S. Constitution: Never
Post 1933 Weimar Constitution: ?
How about she mispoke?
@PD Shaw:
Really? Are you that insecure?
An important point Dr. Taylor makes – why, why is the US (particularly the right) so insecure about who we are as a nation and worried about any possible disrespect on us?
You comment encapsulates that really well.
Why do you look for disrespect?
Why do you project your anger onto banal comments and points of view?
What are you and your type so worried about?
It’s weird – the most vocal proponents of “American Exceptionalism” are also the loudest shouters of national Armageddon and concern – or worse about our future.
I’ve said it before – we are a truly resilient and strong people with the a enviable history and the luck of national resources almost unparalleled on earth.
Why do you think we are so fragile?
Why do we need jingoism and bravado?
You are part the “America love it or leave it” crowd, I get it.
But in reality, you know what – those other constitutions that she referenced?
They also borrow from ours, just with specific changes for time, nationality and history.
We are, tacitly, the basis from which most democracies start these days.
So it’s not an “America, fuck yeah” shout out.
How cares?
The reason that I like the US Constitution is precisely because it´s vague and specially because it´s short. Even teenagers and laymen can discuss the US Constitution, and everyone knows what the First, Second and Tenth Amendments are. The First Amendment is a protection for freedom of speech that it´s inexistent outside the US. The Brazilian Constitution is so long that it contradicts itself.
The South African Constitution establishes official languages, by the way. I did not see anything special there. There is another factor here: the different schools of law. Roman law is very different from English Law, for instance.
@PD Shaw: I understand that the “I might” was directed at the South African constitution. I don’t see how what I wrote would indicate otherwise.
And yes, I realize that she is saying she wouldn’t look at the US Constitution. The hint that I understand that fact is that my entire post is about why using the US constitution as a template might, in fact, be a bad idea.
As such, I don’t think it is I who is missing the point (although, granted, perhaps I was a lot less clear than I thought I was…).
@PD Shaw:
It’s pretty clear she was saying she would look at modern Constitutions (written since WWII,) rather than 200 year old ones. Nothing Anti- American about it.
@PD Shaw:
I don’t think she misspoke at all. My point is that what she is suggesting isn’t that big of a deal.
Am I missing your point?
@André Kenji de Sousa: There is definitely a balance between too long and too short, as well as too vague and too detailed.
Maybe the whole 3/5 of a human thing doesn’t work as well in Egypt.
If we applied the original voting strictures of the US Constitution where only white males who owned property could vote the turn-out would be pretty low, and Egypt would most likely be ruled by and for Albanian gangsters involved in human trafficking and boozy ex-pat Brits with condos in Port Said.
Most modern Constitutions are inspired by the US Constitution. Including the South African one.
@André Kenji de Sousa:
Yes, it is vague, short, and teenagers and laymen can discuss it…. However 225 years of judicial interpretation are not vague… or short…. and let us get real, teenagers and laymen do not discuss them.
Why has it worked so well 225 years? For starters, it hasn’t. (there was a small dust up 150 years ago), I certainly would not recommend that to anyone.
@Steven L. Taylor: I’m not sure that PDs point is worth getting. What I make it out to be is that we shouldn’t be asking an old liberal Anti-American Jewish woman about writing constitutions. (And we shouldn’t have let her on the Supreme Court, either!)
Hopefully, I’m wrong, but I doubt it.
@Just nutha ig’rant cracker:
I don’t agree with PD, but i have to call this move. He raised the issue without a single appeal to her age, her political, or her religious persuasion. Your comment just boxed him in as a knee jerk conservative and/or an antisemite. This isn’t SD and nothing i have read in PD’s past comments suggests either of these is true.
Thats a crappy, cheap, and undeserved move.
@Doug Mataconis: we still love you anyway.
@DRE: “It’s pretty clear she was saying she would look at modern Constitutions (written since WWII,) rather than 200 year old ones.”
I agree; though, that’s the problem I alluded to in Doug’s post. The Constitution is amended from time to time. Surely people who believe that aspects of the U.S. Constitution are worth considering aren’t suggesting the Thirteenth Amendment be ignored? An Amendment is part of the Constitution. Also, a Consitution which extolls broad principles is “modernized” by continuous reinterpretation, its not a set of static rules.
“Nothing Anti- American about it.”
I never suggested it. What we have is a person whose one specialization and authority is interpreting, understanding and communicating the U.S. Constitution. Her statement that she would not look at it in drafting another Constitution is provocative, in the sense of provoking. It would be asking Prof. Taylor what classes I should take in college:
“Not Politicial Science; maybe Art History.”
I don’t think it has a whole lot to do with people being “insecure” or “jingoistic.” A sitting Supreme Court Justice made a statement from which it is fairly easy to infer a lower level of respect for the Constitution than many people think a person in her position ought to have.
Of course, that doesn’t mean she’s wrong, but I can see why some people are angry about it.
@PD Shaw:
That’s a flawed analogy.
Art History is not to political science as the constitution of country A is to that of country B.
The first is apples and oranges, the second is apples.
@Mikey:
No, a sitting SCJ made a statement about where she think a good modern model for constitution writers might be found.
Consider this fact, for example: the South African constitution was one written in the face of a transition from an authoritarian government in the middle of civil strife. That scenario sounds a lot more like Egypt than does the scenario in which the US constitution was written.
Plus, having read a bunch of constitutions, I can tell you that the US constitution, as a document is probably not the best model. Now, there are a number of constitutional principles in the US document worthy of consideration, but that is a different discussion.
Again: read Article III and tell me that it provides a working model for a judicial system,
@Mikey:
But, if she isn’t wrong (or, at least, might not be), then why get mad about it? (Save for the aforementioned jingoism and insecurity?
@Steven L. Taylor:
Steven, I was not disagreeing with you–on the contrary, I agree with what you’ve written. I was just giving my view of why some other people are angry at what Justice Ginsburg said.
You wrote: “Plus, having read a bunch of constitutions, I can tell you that the US constitution, as a document is probably not the best model. Now, there are a number of constitutional principles in the US document worthy of consideration, but that is a different discussion.”
I think that’s the very important distinction those who are angry at Ginsburg are not understanding, and that lack of understanding is sparking their anger.
@Steven L. Taylor:
“But, if she isn’t wrong (or, at least, might not be), then why get mad about it? (Save for the aforementioned jingoism and insecurity?”
Those who are angry certainly think she’s wrong.
I’m going to make the same points you’ve made when I talk to my friends who are angry, because to be honest I was a little angry too until I read your piece. You’ve helped me understand.
@Mikey:
Steven, I was not disagreeing with you–on the contrary, I agree with what you’ve written. I was just giving my view of why some other people are angry at what Justice Ginsburg said.
Apologies for my misunderstanding.
I really appreciate you saying that. It is music to my professorial ears!
And to be clear from my POV: I am not sure, btw, that the SA constitution is necessarily the best model. Indeed, last night I was thinking about which constitution I would recommend as a model and didn’t come up with a clear answer. Indeed, my approach would be to look at institutional features and their rationales rather to to dive into documents. However, at some point a document would be useful as a template or guide. I do agree, as a general proposition, that a more modern document would almost certainly be a better guide in that regard.
@Steve Taylor
I would very much enjoy a post on an issue you’ve raised here: the difference between constitutional principles and constitutional construction. When we dispense with the notion of our founding document as handed down by god and see it as a product of unique circumstances in a dynamic historical era, it becomes far more interesting.
Ben is assigning homework. Everyone get out quick before he sees you.
@michael reynolds: Your assignment is a quadrilogy about a heterosexual boy who wakes up in an alternate universe where guys are the ones with lady-parts. Make sure you write about his angst as he wrestles with the conundrum of staying straight by going gay.
@Ben Wolf:
I’m confused. Where are my lady parts? I checked the fridge, the freezer, under the couch, and in the glove compartment. Still no joy on the vajajay front.
Perhaps michael reynolds is bogarting ’em all.
@Steven L. Taylor: Unfortunately, there is a sizable population here in the US that would have taken whatever Justice Ginsberg said as a casus belli and accused her of anti-Americanism.
Looking at the US Constitution as something to use as a template and in light of all of the court fights (and civil wars) we’ve had over interpretation of What It Actually Means, I can see why Justice Ginsberg might think there are other templates out there that might be more appropriate.
Also another point to keep in mind–is Egypt a Civil Law country or a Common Law country? Attitudes about what you might want to put in your Constitution may vary tremendously in light of that.
@Ben Wolf: To try to answer for Prof. Taylor, he would not recommend a political science analysis of constitutional design of democracies; he might suggest you look to political theory of the ancient Greeks.
@PD Shaw:
Actually, no, I wouldn’t. Indeed, the ancient Greeks would be of little use here.
Ben makes a good suggestion and I will endeavor to address.
In terms of what I am getting at. It is one things to say that, as a constitutional principle, that a supreme court of some type would be useful and to detail what powers it would have. It is yet another to direct someone to Article III and say that that is what you need to know.
USCon Art I Sec 2 Par 1: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
Art I Sec 3 Par 1: The Senate of the United States shall be composed of two Senators from each State, (chosen by the Legislature thereof,) (The preceding words in parentheses superseded by 17th Amendment, section 1.) for six Years; and each Senator shall have one Vote.
Art. II Sec 1 Par 1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice-President chosen for the same Term, be elected, as follows:
Par 2. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
——–
There is more but I think this covers the subject of franchise in Our Great Charter as originally ratified.
I just don’t see any requirement to be male or a property owner to be an elector of candidates for federal office.
I may be picking nits but is this not an important distinction to make? That the Federal Constitution provides that the States sets the qualifications for voting in national elections?
Well, you’re a lot better at it than I, because I’ve had no luck convincing any of my conservative friends that Justice Ginsburg is anything but a traitor to the Constitution she’s supposed to be defending. My, but people can be stubborn.
Leave it to a liberal to try and make a case for ignoring positive, measurable, historically unprecedented success as the most important metric for modeling a system of government from the available choices, and instead basing judgement on some nebulous subjective nonsense. No wonder liberals twist in the wind on almost every issue.