We speak to Virginia Gov. Terry McAuliffe (D) as he prepares to leave office after four years at the helm.
Guest Host: Rebecca Roberts
Over the last two centuries, countries around the world have drawn inspiration from the U.S. Constitution. But new research indicates that the international influence of our founding document is on the decline. In fact, the Canadian Charter of Rights and Freedoms may be the new go-to template for global governance. We explore the evolution of constitutional governments worldwide.
- David Law Professor of Law and Professor of Political Science, Washington University in St. Louis
- Mila Versteeg Associate Professor of Law, University of Virginia School of Law
In “The Declining Influence of the United States Constitution” (NYU Law Review, Forthcoming June 2012), David Law and Mila Versteeg explore the evolution of constitutions around the world over the last sixty years. Using a unique coding methodology, the authors were able to compare 729 constitutions from 188 countries. They find that that U.S. Constitution, which was first drafted in 1787, is increasingly far from the global mainstream. Meanwhile, the constitutions of Canada, South Africa and Germany are much closer to global norms.
Kojo interviewed South African Supreme Court Justice Albie Sachs in 2007. He discussed the differences between the South African and American Constitutions.
An Index of Global Constitutional Rights
Law and Versteeg list the most and least popular rights over the last sixty years.
Most Popular Rights Over Time: (percentage of constitutions featuring listed rights)
|Rank||Type of Provision||1946||1956||1966||1976||1986||1996||2006|
|1||Freedom of religion||81%||88%||87%||88%||92%||95%||97%|
|2||Freedom of the press and/or expression||87||88||84||86||87||95||97|
|4||Right to private Property||81||85||81||83||87||95||97|
|5||Right to privacy||83||83||78||81||83||94||95|
|6||Prohibition of arbitrary arrest and detention||76||81||81||79||81||92||94|
|7||Right of assembly||73||77||73||75||81||90||94|
|8||Right of association||72||74||78||77||80||91||93|
|10||Freedom of Movement||50||55||58||58||64||84||88|
|11||Right of access to Court||68||68||64||62||64||85||86|
|12||Prohibition of torture||37||37||41||45||56||80||84|
|13||Right to vote||63||74||73||69||74||82||84|
|14||Right to work||55||65||59||67||65||80||82|
|17||Prohibition of ex post facto laws||41||51||57||60||67||77||80|
|18||Physical needs rights||44||60||52||57||61||75||79|
|19||Right to life||33||33||38||41||51||71||78|
|20||Presumption of Innocence||8||12||31||37||49||69||74|
Least Popular Rights Over Time
|Rank||Type of Provision||1946||1956||1966||1976||1986||1996||2006|
|1||Right to bear arms||10%||8%||5%||4%||3%||3%||2%|
|2||Protection of fetuses||0||0||1||1||6||7||8|
|3||Rights for victims of crimes||0||0||0||0||1||7||10|
|4||Prohibition of genocide/crimes against humanity||0||0||0||1||2||6||12|
|5||Substantive principles for education||11||16||10||15||15||14||14|
|6||Right to resist when rights are violated||8||7||4||4||4||15||16|
|9||Official state religion||39||39||32||27||26||24||22|
|10||Prohibition of death penalty||10||9||8||9||12||20||24|
|11||Right to appeal to higher court||8||8||7||7||8||20||25|
|12||Natural resources for benefit of all||8||7||8||15||19||27||29|
|14||Right to protection of one’s reputation or honor||13||11||8||10||17||29||32|
|15||Separation of church and state||20||25||28||25||25||36||34|
|16||Right to information about government||2||4||3||5||8||25||34|
|17||Rights for elderly||3||3||3||7||12||26||34|
|18||Reference to international human rights treaties||0||1||18||17||15||30||35|
|19||Right to asylum||11||21||18||21||21||32||35|
|20||Right to marry||18||31||30||28||26||32||35|
* Data from “The Declining Influence of the United States Constitution” (NYU Law Review, June 2012)
MS. REBECCA ROBERTSFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your community with the world. I'm Rebecca Roberts sitting in for Kojo. Coming up this hour, it's been called America's gift to all nations. For two centuries, our constitution has served as an inspiration to new democracies around the world, but times are changing and the constitution may be losing its influence in the international arena.
MS. REBECCA ROBERTSDuring a visit to Egypt this year, Supreme Court Justice Ruth Bader Ginsburg said she wouldn't look to the U.S. Constitution if she was drafting a new document today. After all, newer constitutions in Canada and South Africa explicitly address today's political debates and international norms, like the right to housing, privacy, gender equity.
MS. REBECCA ROBERTSOur constitution is mostly silent about those ideals and it's notoriously difficult to amend. Legal scholars have debated the international influence of our constitution for years and whether it matters, but a new report applied hard data to that debate in a unique way.
MS. REBECCA ROBERTSJoining me to discuss it are the co-authors of that report, David Law, professor of law and professor of political science at Washington University in St. Louis and Mila Versteeg, professor of law at the University of Virginia School of Law. They're co-authors of the forthcoming article titled "The Declining Influence of the United States Constitution" in the NYU Law Review.
MS. REBECCA ROBERTSAnd you can join us by calling 800-433-8850, email us at firstname.lastname@example.org or get in touch with us through our Facebook page or by sending a tweet to @kojoshow. If you were writing a constitution today, what would you include? What would you exclude that is part of the U.S. Constitution? 800-433-8850. David Law and Mila Versteeg, welcome to "The Kojo Nnamdi Show." Thanks for being here.
MR. DAVID LAWThank you so much for having us.
MS. MILA VERSTEEGThanks for having us.
ROBERTSSo we heard that quotation from Ruth Bader Ginsburg that she would not turn to the U.S. Constitution if she were drafting a constitution in the year 2012. Who are constitution drafters turning to instead?
LAWWell, it's actually hard to identify a specific example that countries are turning to. There is something like a generic constitutional language these days where it's a cumulative iteration of what constitutions build one upon the other and the end result is you actually see a lot of very similar constitutional language, very similar constitutional rights, but it's difficult to trace those rights to any unique particular document.
ROBERTSAnd I threw out that idea that you had actually quantified some of this across constitutions which seems sort of preposterous on its face, the idea that you can actually make this a dataset. Mila Versteeg, explain what that actually means.
VERSTEEGWhat does it mean? Well, yeah, I guess I'm the person who created this dataset. It meant spending one year in the Oxford Bodleian Library reading every constitution that has ever been written since 1946. It also means you have to come up with something like a coding scheme or some criteria by which you're going to quantify these constitutions. So, yeah, in the end, I coded something like 237 variables for each constitutional document that has been written since the end of the second world war.
ROBERTSAnd what are some of those variables? Just give us some examples.
VERSTEEGSo mainly, variables relating to constitutional rights. So for example, the right to health, I would read every document and look at whether or not there would be a right to health in this constitutional document and if so, I would say from that year onward, this variable for this country now gets a value of 1.
VERSTEEGAnd not just the right to health, basically I try to capture almost every possible right you can think of. And there are many rights that are contained in constitutions as well as some professions relating to the enforcement of rights and some right-related policies, et cetera.
ROBERTSAnd I should say that if you want to get a sense of how some of these different rights score, you can go to kojoshow.org. We've got the charts from this report up on our website so you can see what it is we're talking about. And David Law, what is the value of quantifying this sort of information, do you think?
LAWSo the problem with the study of constitutions, the empirical study of constitutions, is that it falls between -- a gap in the literature between what legal scholars do, which tends to be normative and non-quantitative, and what political scientists do, which tends to be strongly quantitative. So there are a lot of questions.
LAWPeople, for a long time, comparative Common Law scholars, have speculated, and it really is just speculation, that the U.S. Constitution isn't a popular model for constitutional drafters elsewhere anymore because it's just so old. But no one has actually tried to measure that phenomenon. Actually, for a lot of comparative constitutional law scholars, the finding isn't surprising, but the fact that it's backed up with quantitative data is.
LAWThere are other kinds of questions that people speculate about, but without quantitative research, it's hard to come to any sort of a useful answer. So for example, Justice Scalia has observed right, every banana republic has a bill of rights. In fact, that's a direct quote. That doesn’t mean they all amount to a hill of beans. Well, which constitutions actually matter? Can we identify any variables that predict whether people will, whether governments will, comply with their constitutions?
LAWAnd to answer those sorts of questions, other than, you know, to go beyond just observing what's obviously true, which is some countries don't really respect what's in their constitutions. To go beyond merely stating the obvious, it's necessary to have some sort of quantitative hook, we think.
ROBERTSAnd, you know, the age of the U.S. Constitution is a source of national pride. It's something that we all, you know, learn as part of American exceptionalism, of how prescient our founding fathers were and how these brilliant men were able to create this document that still lives and breathes over 200 years later. But actually, Thomas Jefferson himself once said he thought a constitution should be changed every 19 years and that's about the pace that they seem to happen elsewhere.
LAWRight, right, that is the actual modal lifetime of a constitution. So the founders were prescient, but you can only be prescient up to a point. Take this recent case in D.C., the case involving the police use of the GPS devices on cars, right? Is that a constitutional search or seizure within the meaning of the 4th Amendment?
LAWNow, we can pretend the framers foresaw something like that, but the truth is you'd have to go back, you'd have to explain to them, you know, what a GPS device is, what a satellite is, what a car is even. So there really are limits to what can be done. And I think even the framers realized there are limits to their foresight, which is precisely why Jefferson said there's a need to revisit the constitution every 19 years.
LAWI mean, we put this document up on a pedestal, right? We treat it like a kind of civic religion, as many scholars have put it. But the problem is that it's also supposed to be a working blueprint for a working government and by putting the document up on this pedestal, it becomes really difficult to do the things that we need to do with it to ensure that it continues to do what we need to do with it.
LAWIt's not meant to be a museum piece. It's actually supposed to be a working blueprint and we've gotten quite far from that blueprint to the point that we really now have two constitutions. We have the large C constitution, which we venerate, and we have the small C constitution, which describes how we actually do things and the two are diverging more and more with every passing year.
ROBERTSAnd the small C constitution includes case law and precedent and...
LAWDefinitely, statutes, let's not forget statutes. Also practice and convention so here are a couple of examples. The Administrative Procedure Act, the Judiciary Act of 1789. The Administrative Procedure Act sets forth how federal agencies behave. Agencies are the part of the federal government that people actually deal with on a day to day basis. They're not mentioned anywhere in the large C constitution and in our constitution, it's unusual that it doesn't contemplate the political party system.
LAWOr how about the Civil Rights Act of 1964, the Voting Rights Act of 1965 or even just unwritten rules. For example, in theory, the Electoral College chooses our president, but can you imagine the reaction if, you know, you voted for your electors and they decided, you know, we know you wanted X, but actually we're just going to choose Y?
LAWRight? So that's an unwritten rule almost along the British style. So you have to add together the judicial interpretations which lawyers focus on and also the statutes, the conventions, the practices, even just internal executive branch practices.
ROBERTSWe are talking about how one writes a constitution in the 21st century and if the U.S. Constitution is a good model for that. You can join us at 800-433-8850. Send us email at email@example.com and let's hear from Miriam in Silver Springs. Miriam welcome to "The Kojo Nnamdi Show."
MIRIAMThank you. When you suggested the topic, three changes occurred to me almost at once. I think, first, get rid of the Electoral College. I think they were originally contemplated as sort of wise, old white men, but make it really a popular election. I live in Maryland and I think it's pretty much a democratic state. I think then all the Republicans in Maryland maybe are -- their votes aren't as (word?) as they might be, that's first. Shall I go on?
ROBERTSSo get rid of the Electoral College?
MIRIAMGet rid of the Electoral College, sure. The second of my third is give the Supreme Court justices terms of office, long ones, but maybe 13 years or 15 years, something like that. And the third one is do something about the Senate. It's unfair that the people of Wyoming and the people of California both have two senators and perhaps institute something like a regional representation. That would be more nearly equal.
ROBERTSMiriam, thank you so much for your call. So the Electoral College is one of those uniquely, peculiar American institutions, but in terms of something like terms for Supreme Court justices, are there models internationally where that is incorporated?
VERSTEEGYes. I think, I mean, many countries follow the U.S. model of Supreme Court like we have here. But there is also a different model which we refer to in the paper as a European model, which is a specialized constitutional court that only hears constitutional cases. And in many cases, those judges have limits of 9 to 12 years actually.
LAWWe're unusual. We're unusual (unintelligible) .
ROBERTSOh, a lifetime for justices is an outlier? We have a couple of questions about the 2nd Amendment, the right to bear arms. Ben, for instance, emails, "not that I necessarily want to take away the constitutional right to bear arms, but the issue needs to be clarified. Bear arms against whom? What kind of arms are allowed and what kind are not?"
ROBERTSWe started this conversation talking about things that new constitutions are adding that are missing from the U.S. Constitution. This is one of those things the U.S. Constitution has that other constitutions leave out.
LAWRight. It's one of the odd quirks. There are two provisions, in particular, we found that are in the U.S. Constitution that are rare globally. One is the right to bear arms, which some Latin American countries used to have, but its popularity has declined to the point that now it's us and Mexico and Guatemala. And even in those countries, their right to bear arms is very heavily qualified and it's made explicit that the government has the power to regulate what arms you can bear and under what circumstances.
LAWThe other actually, relatively rare right to provision is that we have a constitutional separation of church and state, which makes us an interesting country in that we are one of the most religious, industrialized democracies on the one hand, and yet on the other hand, we have in law, a very firm separation between church and state. That's not something that a lot of other countries have.
ROBERTSMila Versteeg, quantify for that. How unusual is it to have a constitutionalized separation of church and state?
VERSTEEGI think about 30 percent of the constitutions have that today, if I'm right.
ROBERTSWe are talking, just to remind our audience, with Mila Versteeg, professor law at the University of Virginia School of Law and David Law, professor of law and professor of political science at Washington University, St. Louis. And we are talking about how to write a modern constitution. Is the U.S. Constitution a good model for a new democracy? What would you add? What would you take away if you were writing the constitution today? The number to call is 800-433-8850, email firstname.lastname@example.org. We are going to take a quick break, but we will get to more of your calls and emails after this. Stay with us.
ROBERTSWelcome back. I'm Rebecca Roberts, sitting in for Kojo Nnamdi. I'm speaking with David Law from the Washington University in St. Louis and Mila Versteeg at the University of Virginia School of Law. They are co-authors of a forth coming article called "The Declining Influence of the United States Constitution" in the NYU Law Review.
ROBERTSAnd we are talking about the role of the U.S. Constitution in influencing or inspiring new constitutions around the globe. The number to call, to join us, is 800-433-8850 or email us at email@example.com. You can also get in touch with us through our Facebook page or by sending us a tweet to @kojoshow. Gina from Rockville is on the line now. Gina, welcome to "The Kojo Nnamdi Show."
GINAHi, thank you. My comment is, I'm wondering -- I really question the assumption that the constitution should be revisited to every 19 years. First of all, it is possible that Thomas Jefferson was just wrong in that. And secondly, if we were to have the constitution rewritten, I mean, think about the practicality of that. I mean, we don't even have a Congress that can pass a budget.
GINACan you imagine the upheaval in trying to get a new constitution written? And the constitution that we have now has stood up fairly well because it was made to be amended. But we do have a process for amending it. It's really about striking a balance between stability and flexibility. So I was wondering what your guests might have to say about those things.
ROBERTSGina, thanks for your call.
LAWMe? May I...
ROBERTSGo ahead, David Law, yeah.
LAW...Mila, is it all right if I...
LAW...comment on this?
LAWSo, you know, there's nothing magic about 19 years as a number. It does happen to be descriptively the number of years that the average constitution actually lasts. But whatever the -- if you think of a constitution like a functional thing like a car, if it gets you from point A to point B, whatever the service interval is on a constitution, we are well past it, right? And in terms of there being a process procedure for an amendment in the constitution, you know, two things to point out. First, it is one of the most onerous amendment provisions in the world.
LAWI believe the one that was previously identified as more onerous was Yugoslavia's, and Yugoslavia no longer exists as a country. There has been research done, showing that if you want a constitution to last a long time, there needs to be a trade-off between how detailed the document is and how hard it is to amend. And, actually, the irony here is that our own constitution was not adopted in accordance with the procedures set forth in the articles of confederation.
LAWOur constitution is, in a technical sense, unconstitutional. The point being that, if we the people want a new constitution, there's really no one to say no to us, other than ourselves. And if we don't take it upon ourselves to amend the document, we can say the constitution has lasted, but the reason its lasted is because it no longer describes reality. It hasn't got political parties, it hasn't got administrative agencies. It doesn't contemplate the fact we have direct election of Presidents.
LAWIt doesn't acknowledge the existence of the modern welfare state, you know. But the fact that we do have universal public education, the fact that we do provide retirement security for the elderly and for the disabled, so on, so forth. So we have something that has lasted for 220 years. But the reason its lasted is because it's no longer the way we actually do things.
ROBERTSAnd is the fact that our constitution is notoriously hard to amend, again, an outlier? Are other constitutions, do they have amendment processes that are less onerous?
LAWSandy Levinson's study of this, he concluded that Yugoslavia was the only country that had a more onerous amendment procedure, the only one.
ROBERTSWe are talking about building a new constitution. And let's hear from Maria in Washington, D.C. Maria, welcome to "The Kojo Nnamdi Show."
MARIAThank you very much. I wanted to bring us back to the second amendment, just for a moment. And I think that the way the second amendment was written, the founding fathers were not envisioning a national standing Army. The way things were done back then was more in line with state militias. And so I think that's what the right to keep and bear arms was talking about.
MARIABut relating the second amendment to the first amendment, the freedom of religion and the separation of church and state, there was, in an early draft of the U.S. Constitution, not on the right to keep and bear arms but the right to not be compelled to pick up arms for your country. So that was a constitutional protection for conscientious objectors. And I think it's very interesting to look at it in today's frame of mind.
MARIAWe have this, you know, right of conscience, freedom of conscience in terms of insurance companies paying for contraception yet I'm a Catholic and I believe in the ethic of consistent life and I'm compelled to pay for war and I choose not to participate in war, of course. But young men in the draft time or young men who may not agree with war are still compelled to register for a draft.
MARIAAnd so, there seems to be some inconsistency there. And in the first Gulf War, in 1991, since protection for conscientious objection is not in statute in the United States, the right was actually pulled and hundreds of people were jailed for refusing to participate in the 1991 Gulf War. So it's just fascinating to me to think that there was at one time protection for that right of conscience. I wonder what you're...
ROBERTSYeah, Maria, thank you for your call. I'm afraid her line was sort of breaking up.
ROBERTSBut David Law, go ahead.
LAWNo, those are really well informed comments. And I would say that, personally, I would agree with the caller, that the text of the constitution certainly does not dictate what the Supreme Court has done with it in this recent D.C. v Heller case where it ruled that the District of Columbia can't ban handguns. I mean, the Supreme Court affectively read out of the second amendment, the first part of the amendment, well regulated militia being necessary to the security of a free state. And, you know, to summarize, Justice Scalia said, oh, that's just the prefatory clause, and threw it out the window.
ROBERTSAnd Mila Versteeg, we heard that callers trying to talk about the intent of the framers, in terms of the language of the second amendment. These are conversations that still happen over 200 years after that document was written, trying to sort of divine what they would have thought of, of contemporary situation. The constitution, you know, you think of it as a pretty dense document of clauses and sub-clauses. Like, one of the reasons it's hard to divine with the original intent was is because it can be sort of hard to parse. How do you break that down to make it ones and zeros?
VERSTEEGThose ones and zeros are only in the end, what a tech says. So what the data does not capture is any subsequent interpretations of the written document or it does not capture original intent either. I mean, it's only what's written. And in the case of the U.S. Constitution, that obviously means that there is a lot of things the data does not capture.
VERSTEEGI do want to point out, though, that the U.S. may be -- that's one of the ways in which the U.S. is unique in the sense that constitutions around the world tend to be much longer. They can be two or 300 pages long and so there's much more that's actually written in the text itself. And also, they are, as we talked about, they are amended much more often, which means most of what there is to constitution law is in the Constitution itself, which is obviously not true in the case of the U.S.
LAWAnd if I could just add, you know, the nice thing about looking just at what the tech says, is that when you have data on what the tech says, you can then use -- you can contrast what is on paper with what countries have done in practice, for example, what courts have done when interpreting the document.
ROBERTSSo to give our audience an example of a different sort of constitution that includes different rights from the U.S. example, back in 2007, Kojo Nnamdi spoke with Albie Sachs, who's the South African Supreme Court Justice, one of the authors of that country's constitution about the philosophy behind the document. It explicitly protects specific groups, it outlaws discrimination based on gender and race and sexual orientation and disability. And it also extends positive rights to South Africans. I want to play a little clip from that interview in order to understand a little more about the South African Constitution.
JUSTICE ALBIE SACHSWe have very strong extensive equality provisions as the number one principle. It's the equivalent of our first amendment, if you like it. It comes first in our constitution, equality. Because of apartheid and the racial separation that was institutionalized before. But equality, we allow for affirmative action. The constitution expressly permits it, authorizes affirmative action to overcome past imposed forms of disadvantage and discrimination.
MR. KOJO NNAMDIIt includes rights to clean water.
SACHSRight. That's the other major innovation, its social and economic rights, health, education, housing and water and nutrition, social welfare are all included as rights that people have. Sometimes I've been arguing, we don't want bread without freedom. We don't want freedom without bread. We want bread and we want freedom. And in a modern society, people should have fundamental rights to both those aspects of life.
ROBERTSAnd you can hear more of that conversation between Kojo Nnamdi and Albie Sachs, one of the authors of the South African Constitution, at the website kojoshow.org. But I think that that clip, first of all, lists a bunch of rights that are in, for instance, the South African Constitution that are not included in the U.S. Constitution, nutrition and health and education and clean water. But also sort of highlights the positive versus negative freedom dichotomy, the kind of freedom from and freedom to. David Law?
LAWSure, one of the problems with the way that -- the South African Constitution has a lot of rights by the standards of the English speaking world, which also means the common law world, right? And so when English speaking countries or scholars or judges in English speaking countries are asked, well, what's a good model to look at, they'll often name South Africa, they'll name India, they'll name Canada. A lot of that has to do with the fact that those are simply English speaking countries where the documents and what's going on is all accessible to the person giving the advice.
LAWBut by global standards, even a country like South Africa, its constitution still isn't considered as having a large number of rights. Common law countries tend to have constitutions, simply contain fewer rights. But the kinds of things that he pointed to, for instance, affirmative action, that's not as rare as people might think. Roughly a third of the world's constitutions at this point contain some form of affirmative action protection.
ROBERTSWell, also, he brought -- you, David Law, bring up the point that people in English speaking countries point to English language constitutions. But Mila Versteeg, you, you know, obviously looked at many originally written in many different languages. Did the translation or your own language through which you read these documents change the meaning, do you think? How did you handle that issue?
VERSTEEGWell, I mean, that's a very good question. I relied mainly on translations by other people. But there have been systematically translated by the same people. And I think by constitution law scholars from these countries or who speak Spanish, for example, I do think that constitutions use remarkably similar language regardless of translation issues. They all tend to adopt a common core of rights and define those in similar terms. So it's possible that there may be some textual nuances that get lost in those kinds of translations. At the same time, that's not the kind of textual nuances that are captured by today than in the first place so...
ROBERTSI -- now, we have a lot of callers that I want to include in this conversation, including calling from Fort Belvoir. We have Ti (sp?) on the line. Ti, welcome to "The Kojo Nnamdi Show."
TIHi, thank you for having me.
TII wanted to just make a few points. First and foremost, I disagree with your male speaker who criticized the constitution because it's not detailed enough. One of the beauties of the constitution is that it is a framework that was designed to be filled in by the laws that were passed by the legislature. It's not designed to lay out every single point that we need to follow, which is why a lot of countries have these two and 300 page documents that are really unwieldy. The designers understood that simplicity is really key in certain areas.
TIAnd that brings to my second point, which is the importance of silence is being misunderstood. A lot of times, the constitution is silent on certain issues primarily because the framers understood that it was better to leave certain issues alone and let us figure it out as we evolved and as our society developed. That it, you know, parties did exist.
TINow, granted the Wig party and Republican party and Democratic party developed over time, but the parties were not unheard of at the time of the drafting of the constitution. So it's not, you know, I believe silence with that regard is definitely something that is being overlooked in this issue. I had a few more things, but really at this point, I think I've spoken enough. So I'll turn it back over to you. Thank you.
ROBERTSThank you, Ti. David Law, let's give you a chance to respond.
LAWSure. Well, the problem is, you look at language like "nor shall any person be deprived of life, liberty or property without due process of law," sure, you know, you don't want to have something that's incredibly detailed that goes on for hundreds of pages. And in fact, again, empirical research has shown that if you have a constitution that is just too long and too detailed, those constitutions tend not to last as long. But you have language like the due process clause and, you know, it's so vague and it's become so much of a problem for our judges that even Justice Frankfurter of the 1950s advised the drafters of the Indian Constitution not to include that kind of language in their constitution.
LAWWhen you have language that general, you create a real problem for our courts. On the one hand, they have got to fill it in. And fill it in, they do. We've got thousands of pages, you know, textbook on the due process clause. That's, you know, 500-1,000 pages. So they have to fill it in. And meanwhile, while they're filling it in because they have to, we criticize the judges for engaging in illegitimate lawmaking.
LAWSo I think either we accept that we have a very general, very old document that needs to be updated, either formally or by the judges and that we're letting the judges do it or we take it upon ourselves to make things work. But what we can't do is criticize the judges for making law and then insist on keeping a document that's very old and very vague.
ROBERTSWe have email from Jim who says, "I believe the reason why economies around the world are failing is because of the sense of entitlement written in constitutions around the world. The original framers the U.S. Constitution got it right. And if the rest of the world would follow, the world economy would be far better off." David Law, do you have a response for Jim?
LAWWell, this is an empirical paper so we don't really take a perspective on what the constitution should include. I mean, we can merely point out that it is increasingly common for other countries to include things like the right to education, the right to health but let's also remember, again, I drew the distinction between the large C and the small C constitution. Our small C constitution does in fact include things like education and health care.
LAWAnd sure it's not in that large C document that we celebrate. But you know, just try abolishing social security or Medicare and Medicaid and see what happens, right. Effectively, these are constitutional, they're just small C constitutional, that's all. So, you know, people can point to large C documents and say, well, you know, we're great because we don't have these things. But we do.
ROBERTSWell, an example like South Africa where we heard that litany of clean water and education and health. As the case law develops, a few years on from a constitution like that, how is that practically working? I mean, are those constitutions successful in the terms in which they were drafted?
VERSTEEGShall I answer this one?
LAWOh, Mila, go ahead.
ROBERTSYeah, Mila, go ahead.
VERSTEEGNo, so in that sense, actually the South African constitutional court has become an important model, I think, for social and economic rights jurist prudence because what it has done -- I mean, the constitution has a right to housing, for example. What a constitutional court has not done is it has not said, well, now the government has to gift everybody a house. I mean, that is sort of...
VERSTEEG...the common objective -- objection of people and say, well, it's the social and economic rights cannot be judicially enforceable because then judges are going to tell government that they have to give housing to people there, et cetera. What the court has done instead has said what the government needs to do is have a plan, right? So we're not going to tell the government how to do this, all it needs is a plan. And if it doesn't have a plan, that's bad, but, like, the way we enforce it is we want to make sure that there is some sort of policy in place. So in that sense, yeah, that's how these things have worked out.
LAWSubstantial deference, the legislature is how courts have actually enforced positive rights.
ROBERTSAnd legislatures turn over a lot more quickly than constitutions do?
LAWThey do, but they're also more politically accountable and they're the ones responsible for reconciling, you know, what's in the constitution of what they can actually afford, right? And the courts do understand that, for the most part.
ROBERTSYou are listening to "The Kojo Nnamdi Show." I'm Rebecca Roberts, sitting in for Kojo. We will continue our conversation about modern constitutions in a moment. You can join us at 800-433-8850 or email us at firstname.lastname@example.org. Stay with us.
ROBERTSWelcome back. I'm Rebecca Roberts sitting in for Kojo Nnamdi. I'm speaking with David Law, professor of law and political science at Washington University in St. Louis. And Mila Versteeg, professor of law at the University of Virginia School of Law. Their forthcoming article is called, "The Declining Influence of the United States Constitution." It's going to appear in the NYU Law Review.
ROBERTSIf you'd like to join us to talk about drafting constitutions in the 21st century, our number is 800-433-8850. You can also send us email, email@example.com. And we started this conversation by saying that if the U.S. Constitution is declining as an inspiration there's not an obvious successor to it. There's not one document that seems to be copied and represented elsewhere, but we are, you know, we're not having this conversation in a vacuum. You know, Tunisia, Egypt, Morocco, even Syria are embarking on the process of drafting a new constitution.
ROBERTSAnd one document that does seem to get mentioned a fair amount is the Canadian Charter of Rights and Freedoms. Mila, how would you characterize the Canadian Charter? Why is that a model people are using?
VERSTEEGWhy is it a model? I think it's -- well, maybe, David, you should talk on that as a Canadian scholar.
LAWSure. I was born -- she's outed me. I'm a Canadian by birth and upraising. So part of it is it's simply two big advantages. One is it's an English-speaking country. Right. And it's obviously very close by. Everything they do is very convenient and accessible to us. So it's easy for us to learn about what they're doing. They're working on a similar legal tradition as the U.S. And so that's another reason -- at least to English-speaking jurisdictions it looks good and it's one that would be promoted. And it has the advantage of being relatively recent in time. Right.
LAWYou know, every constitution builds on what's come before. And that's part of the reason why it's becoming increasingly difficult to trace constitutions back to one primary model or to say the constitution writers today are copying one specific constitution. It's because as more and more constitutions are written, revised, countries have more and more examples and more and more recent examples to look to. And so Canada's the beneficiary of a lot of post-war constitution writing.
LAWThey sort of looked back and synthesized the post-war constitutional tradition, the kinds of international human rights that you see expressed in the U.N. documents and to integrate that with the common law tradition. And so that's why it looks really good to, you know, if you ask an American what's a good model that's more recent than the U.S. Constitution, the Canadian Constitution comes to mind. But still, by global standards, like (word?) constitution, the Canadian Constitution even more so contains a relatively short list of rights. It's more extensive than the U.S. Constitution, but that isn't saying much.
ROBERTSWe have an email from Joan in Kensington, who's referring back to our earlier conversation about the only constitution that was harder to amend than the U.S. is that of the former Yugoslavia. She says, "I was wondering if there's not a downside of having a constitution that's easier than ours to amend? Dictators don't pause when they pack their national assemblies and then vote through varies -- like a third or fourth term for a president who's already bashed up against this supposedly legal term limits as defined by their constitutions.
ROBERTSSome dictators or strong-arm rulers don't even bother to amend it and just don't run, even though it's unconstitutional. Please describe the amendment process in the former Yugoslavia and a few other nations. And did the successor states of the former Yugoslavia model their constitutions on that original one or did they create new ones from whole cloth?" Do either of you have an answer for Joan?
LAWWell, in a very general sense there's a great book by Tom Ginsburg, Zach Elkins and James Melton called, "Endurance of National Constitutions," where they find, as one might suspect, there is in fact a sweet spot in terms of how easy or difficult you want the constitution to be amended and how detailed the constitution should be. It's a little like a Goldilocks problem. Right. You don't want it too hot or too cold, you don't want it too easy to amend, but it can't be too hard either. It can't be too general, but it can't be too vague. It's constitutions that hit that sweet spot that, as historical matter, have survived the longest.
ROBERTSLet's take a call from Martin, in Rockville, M.D. Martin, welcome to "The Kojo Nnamdi Show."
MARTINThank you. Glad to be on the air. I have two issues I'd like to have discussed. And I apologize if they were already covered. The first, as far as our Constitution not having as much in it as others, isn't there a provision that anything not in the Constitution is left to the states? So that in fact, it's an enormous Constitution because of all the things that aren’t in it because then they're left to the states.
MARTINAnd as far as how easy it is to amend, given that our concept is that we want to have individual rights, we don't have absolute majority rule, difficulty in amendment means that changes in political tenor, of strongly running emotions are not able to just rewrite the basic rights of the minorities as easily as they might if it were easy to rewrite the Constitution. Thank you.
ROBERTSMartin, thanks for your call. So this, David Law, goes to your big sea, little sea constitution issue, but more specifically, the fact that we are a confederation of states. Does that color in some way the rights that were left out of our Constitution?
LAWSo over time, our Constitution has evolved in such a way that it is less and less a confederation of states and more and more the understanding is that we the people are the ones who actually have the sovereign power. Right. So even, I think, one of the things the caller may have been keeping in mind is the Tenth Amendment, that people often forget. The Tenth Amendment says powers not delegated to the U.S. by the Constitution are reserved to the states respectively or to the people. Right.
LAWAnd so even at the outset, yes, the U.S. was formed as a collection of states, but the people went outside the states to form the Constitution. And over time -- so for example, we used to have senators selected by the states. We don't do that anymore. We now have direct election. And then we had this little thing called the Civil War. Right. And these little things called the Civil War Amendments. And those were intended to fundamentally reshape the balance of power between the federal and the state governments.
LAWAnd it remains an ongoing question, you know, where that balance is. We currently have a court that favors the states. Under the Warren court era we had a court that favored more the federal government. But I think it's hard to say that we now still have the balance that the framers intended in 1787. The question is what is that balance as of the Civil War Amendments. So called Federalists like to minimize the impact of the Civil War Amendments. People who look to the national government to vindicate things, such as civil rights, tend to emphasize the power of the federal government following the Reconstruction Amendments.
ROBERTSAnd just to clarify, you're talking about Thirteenth, Fourteenth, Fifteenth?
ROBERTSSo abolishing slavery...
LAWEqual protection, due process, applied against the states themselves. Right. Before the Bill of Rights, applied only to the federal government itself. As of the Reconstruction Amendments, Thirteenth and particularly the Fourteenth, that's the granddaddy of the Reconstruction Amendments. Right. That's got a privileges and immunities clause. It's got a due process clause. It's got an equal protection clause. All very general language and all aimed like a dagger at the heart of the states following the Civil War.
ROBERTSAnd the Fifteenth, of course, for black male suffrage.
ROBERTSI'm sorry, go ahead.
LAWNo, no. That's...
ROBERTSAll right. Let's take a call from Bobbie in Alexandria. Welcome to "The Kojo Nnamdi Show," Bobbie.
BOBBIEHi, thank you for letting me call in.
ROBERTSSure, go ahead.
BOBBIEI was wondering what the commentator's response would be to -- I get into a lot of arguments with people that are more religiously and politically conservative than I am. You know, ha, ha, I’m an NPR listener. But I was wondering what they would have to comment on regarding the intent or not at all towards partiality of Christianity by the -- if there was intent regarding separation of church and state?
BOBBIENot just in personal arguments, but obviously listening to people like Rick Santorum and whether or not founding fathers intended to sort of like an umbrella since most of the original immigrants that came to the U.S. before it was the U.S. were Christian. And whether or not, you know, that was sort of like, I guess, grandfathered, in terms of when they thought of protections and religious toleration, sort of partial, I guess, to Christianity? I personally don't think so, but I was wondering what you all thought since that's becoming a very big justification over some of the more social issues going on in the Republican debates right now.
ROBERTSBobbie, thanks for your call. So the separation of church and state, it's one of those, you know, enshrined U.S. constitutional ideals that is not necessarily common among other constitutions across the globe. And the caller's right, you know. We're hearing about this. There's, you know, primaries today in Michigan and Arizona and candidates are talking about it. I think she's asking sort of, where did that come from and does it do now what it was intended to do then?
LAWWell, it is one of those strains of American constitutionalism that runs up against what a lot of people would like -- the way that a lot of people would like things to be done today. You know, as Mila mentioned, it is 30 percent of the constitutions today contain some kind of a separation of church and -- 34 percent, I'm sorry, contains some sort of separation of church and state. The question of what the framers intended, you know, really depends on which of them you asked, but we know pretty much as a fact that Jefferson, obviously, was emphatic that church and state needed to be separated.
LAWWashington was scrupulous, even about not saying prayers in public or if he did, be scrupulously non-denominational about it. And the framers, I think, were, if anything, were more scrupulous about observing a separation of church and state then many political figures are today.
ROBERTSWe have email from Julie in Washington who says, "there's been so much attention lately to people who are almost obsessed with the Constitution, but that view is so dogmatic. It seems like the same approach that religious fundamentalists take toward the Bible. What rationale is there for taking such a rigid view of the Constitution, as opposed to changing it or allowing it to be more flexible to better suit our needs of today?"
LAWThat's a really excellent question. And so we, you know, legal scholars refer to there being small-P-Protestant and small-C-Catholic approaches to the constitutional interpretation. Right. With the small-P Protestant approach is I can pick up this document and I have just as much right and ability to make sense of it as you do. And the small-C Catholic approach is in order to understand the document, it has to be filtered through this body of understanding and interpretive history and technique.
LAWAnd I don't think that the small-P approach is -- I don't think it's ever really going to go away. Today we call it textualism, when it's practiced by the Supreme Court. Right. Where I would get out the document and I'd get out my dictionary, either today's dictionary or the dictionary from 1787. And I'd just say, well, you know, here's what the language means and that's what we're gonna do. Now, the further you are from the time the document is adopted the worse a job that kind of approach does of dealing with today's problems and concerns. Right.
LAWSo you tell me what a strictly textualist approach tells you to do when it comes to the use of GPS devices on cars. Right. If you have a constitution that's five or 10 years old, then you know, by all means, it would be textualist because it was written with contemporary needs and concerns in mind. If you try to make a 220-year-old document talk to today's needs and concerns in a textualist way, you know, I don't know intellectually honest that is. I think that's more like a ventriloquist act where you put words in the mouths of the framers by finding the language you want in the Federalist papers and saying, oh, here's what the framers had to say about it.
LAWI think that it's necessary for the courts to make law in those cases, but I think it would be better if they were honest that that is what they are doing, rather than simply reading the text like it's some sort of computer program that can be deciphered.
ROBERTSNow, we've been talking about various nations' constitutions as if they existed in silos, where of course they don't. I mean, they rub against each other in cases of international law. And certainly within American legal circles international law is polarizing. Some scholars have gone so far as to say there is no such things as international law. Supreme Court justices have cited precedence in courts outside the U.S. How do some of these international issues end up influencing each other?
LAWWell, that's a very open-ended question. I think it depends on what you think constitutional adjudication is. Right. In a lot of countries, if you have something like, again, the GPS devices in cars, they treat that like a practical problem. They say to themselves, well, you know, what's on both sides of the equation? On the one side, sure people need privacy. On the other hand, law enforcement needs to do its job. And how do you balance the two in light of modern technology? Okay.
LAWAnd if you treat that kind of question like a practical question, right, where you identify the competing concerns which are gonna exist in pretty much all countries and then you try to go about it in a reasoned way, you know, it's gonna be relevant to you how other thoughtful courts have engaged the question. Right. If they've done it in a thoughtful way you wanna look at what they've done. You don't have to accept it, but it'll be interesting to you.
LAWSo if that's how we approach constitutional questions then what courts in other countries do, so-called international, then it becomes relevant. If on the other hand we approach constitutional law and constitutional questions, as well, you know, GPS devices on cars, well that really depends on what the framers intended in 1787. Right. And we have to understand the text they used and their intentions back then. If we approach the Constitution that way, then what other countries do is not that useful or interesting.
VERSTEEGMay I add something?
ROBERTSYeah, Mila, come on in.
VERSTEEGYeah, so I mean, there's no doubt also that in the writing of constitutions, foreign and international issues are important so there is a lot of studies of how constitution makers -- they don't start from scratch. They don't reinvent the wheel. They look elsewhere. They look abroad. They look at foreign constitutional models. And that's also why a lot of constitutions end up being remarkably similar to one another. And for me, personally, I think one of the most striking examples of that, to move this a little bit to the international plane, is the constitutions of the former British colonies that were written in the 1950s.
VERSTEEGSo countries like Nigeria, Ghana, Kenya, Zambia, Botswana, Guiana, they all got the exact same Bill of Rights, word for word, similar. And it was essentially the European Convention on Human Rights. So I do think, I mean, international influence as transnational influences are very important in the design of constitutions and, yeah.
ROBERTSAnd in addition to the sort of post-colonial model, do you find regional similarities, where there's a part of the world that might give more influence to a certain idea over another?
LAWWe didn't actually find strong evidence of that.
LAWWhat we do find is evidence of similarity by legal family. Right. And the common...
LAW...law family is strewn across the globe. You've got South Africa, you've got India, you've got Hong Kong, you've got New Zealand, Australia, Canada. So, you know, you throw darts at a map and you get the former commonwealth. Right. That we do find, but in terms of strong geographic effects, not as much.
ROBERTSAnd again, we're talking about documents and they certainly have a real-world application, but there's a quotation from, again, Justice Scalia saying, you know, the former Soviet Union had a much better bill of rights than we do.
ROBERTSYou know, so the document itself is not the last word, necessarily, in the rights of the people.
LAWNo. And in fact, we have a paper we'll be releasing very soon to (word?). We don't know where it'll end up, called (word?) Constitutions" where we look at exactly the phenomenon that Justice Scalia points to and we attempt to compare what constitutions promise on paper with what they actually do on practice and to try to identify some variables to predict whether -- everybody knows this. You know, everyone's been observing this for ages.
LAWWell, just because they write this thing in the document doesn't mean it's worth a hill of beans. That's obviously true. The question is can we say anything more than that? And it's hard to say more than that until you actually have, you know, quantitative data. Otherwise, you're just talking about your impressions. And probably, to be honest, you're probably talking about your impressions based on the English language literature that you read, which in turn is from a very skewed sample of countries.
ROBERTSAlthough it does seem to be a pretty interesting time to be studying the creation of constitutions.
LAWSuper interesting time, but no one's called us yet to write one. So our email address is on the web, in case anyone out there needs a constitution.
VERSTEEG(word?) question if we should do it.
ROBERTSThat is David Law, professor of law and professor of political science, at Washington University, St. Louis, and Mila Versteeg. She's a professor of law at the University of Virginia School of Law. Their forthcoming article is called "The Declining Influence of the United States Constitution" in the NYU Law Review. Thank you both so much for joining us.
LAWThank you very much for having us.
VERSTEEGThank you for having us.
ROBERTSAnd again, you can see some of that data quantifying other constitutions on our website, kojoshow.org. I'm Rebecca Roberts sitting in on "The Kojo Nnamdi Show." Thanks for listening.
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