February 7, 2012

Everything Becomes Obsolete

Nobody wants to copy Windows 3.1.
In the United States, we tend to think of constitution making as something that happens once every few centuries, if not once every eon. After all, the US Constitution is the oldest written constitution in the world that’s still in effect. For all its flaws, it’s served us pretty well over the 225 years it’s been around. But times change. History moves on. Things evolve.

So it shouldn’t come as too much of a surprise that, according to a pair of law profs with an article in the works, the influence of our Constitution on the rest of the world is waning. As recently as 1987, a study of 170 countries showed that 160 had constitutions greatly influenced by our own. Today, however:
‘[a]mong 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.’
Why? That’s where the quote at the top of this post (from Law) comes in. A constitution written in the 18th century is silent on lots of questions that are important to emerging democracies in the 21st Century. We are still clinging to Win 3.1, while everyone else has moved on. The state of the art (or at least Vista, to keep the Widows analogy going) is the Canadian Charter of Rights and Freedoms, adopted in 1982.

There is a lot of talk of rights in the New York Times article, but our Constitution itself (as opposed to the Bill of Rights) has very little to say about individual rights per se. It’s more focused on structural aspects. And while it’s easy to make an argument about the broad benefits of, say, the separation of powers, other things don’t make as much sense in a smaller modern nation. Federalism is basically a holdover from the Articles of Confederation and the unique conception of the states during the founding. That history just isn’t present in, say, modern day Egypt. Why should they use such an outdated model as a base?

As for rights, there’s a nifty chart that’s part of the article that shows, for the most part, the trend is for modern constitutions to broaden rights compared to ours, not limit them. For example, most of the big rights in the First Amendment – freedom of speech, assembly, and religion – as well as a prohibition against arbitrary arrest and detention appear in between 94% and 97% of world constitutions, as well as our own. Where the world moves on from us is in areas like women’s rights (91%), right to work (82%), and right to education (82%). To be fair, some of the areas labeled as not being part of our Constitution – like judicial review and the presumption of innocence – have been recognized by the Supreme Court.

What’s really fascinating to me are the areas where our Constitution explicitly provides rights that don’t hold a lot of sway in other newer constitutions. The prohibition against double jeopardy, for example, only gets into 50% of modern constitutions, while only 49% percent provide for the right to remain silent. Even more striking are a pair of contentious provisions that most people still feel are critical to our Constitutional system that are almost nonexistent elsewhere – the separation of church and state (only 34%) and the right to bear arms (only 2% - you read that right).

At the end of the day, of course, the words on paper aren’t nearly as important as whether the culture as a whole buys into the ideals they represent:
as Justice Antonin Scalia told the Senate Judiciary Committee in October. ‘Every banana republic in the world has a bill of rights,’ he said.

‘The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours,’ he said, adding: ‘We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!’
Of course, it was all meaningless. Unfortunately, I fear that the lesson the United States is most poised to give in the 21st Century is what can happen when the guarantees of the Constitution become just words on paper. When ideals upon which we’ve relied for so long are swept away out of concern for security or because of a misguided war on particular behaviors, that can be the result. I hope we recognize it before our influence on the rest of the world is something to avoid, not something to emulate.

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