Ten years ago, the Arab Spring gave rise to the surprising prospect that, in the near future, half a dozen Arab nations could draft and adopt new democratic constitutions. This is not, of course, how things turned out, but the heady prospect of such a speedy constitution has sparked robust and widespread discussion and debate.
Into this global conversation came Ruth Bader Ginsburg, sitting judge of the Supreme Court of the United States, with surprising advice.
“I wouldn’t look to the US Constitution,” Ginsburg observed in an interview, “if I wrote a constitution in 2012.” She might instead look to South Africa, or some other more recent constitution, more relevant and more refined.
Ginsburg’s comments shocked some Americans and delighted others. But apart from the question of where the new democracies should seeking inspiration lies the practical question of where they are doing seek inspiration.
To hear some observers say it, the Constitution of the United States has, in the eyes of other nations, become a piece of museum – a curiosity, a period drama, unrelated to our time. These observers have half of a small dot that hides a large one. Developing democracies frequently seek constitutional guidance and models outside the United States. But the constitutions to which they refer would not exist at all without the American example, by which these other models were themselves strongly influenced.
The very idea of a written constitution – a basic law, enforced by an independent judiciary, which creates and limits the power of government – is an American original. And yes, other constitutional cultures look at each other. But in doing so, more often than not, they indirectly turn to America.
In 1934, Hans Kelsen was a demoralized, depressed and devastated man. His life’s work was in ruins; Kelsen himself was in exile. In 1920 he had drafted a republican constitution for his native Austria and had designed a new “constitutional court” to enforce it. Now, for all intents and purposes, Kelsen’s court and its constitution no longer existed. The rise of totalitarianism had crushed them both.
Kelsen soon left Austria – first for Germany in 1930 and later, after Hitler took power, Switzerland. Kelsen’s Jewish ancestry made it dangerous for him to stay in Austria or Germany. In 1940, the great thinker emigrated to the United States, where he taught at Harvard before landing at Berkeley.
When Kelsen fled Europe, democratic constitutionalism was in decline across the globe. Only the United States had a written constitution with a bill of individual rights enforced by an independent judiciary. Other countries could have nominal constitutions, but these, by and large, could be changed by simple legislation whenever parliament wished.
The decade since Kelsen’s arrival in the United States has witnessed an unprecedented storm of state-sponsored butchery. Millions were murdered in Nazi death camps; millions more perished in the Soviet gulags. But these are only the most notorious examples. Tens of millions of people in dozens of countries have suffered fundamental rights perversion on a staggering and sickening scale. The prospects for democratic constitutionalism, for Hans Kelsen and others, seemed bleak.
Since 1945, however, constitutionalism has swept the planet. Virtually every sovereign state on the planet now has a written constitution, including Kelsen’s native Austria. Many have moved away from the American model on crucial points – including adopting Kelsen’s narrower model of what judges might consider – but all have embraced a fundamentally American idea: a written constitution, backed by an independent judiciary and reinforced by structural constitutional protections.
In the relatively short space of 76 years, an American original has become a worldwide phenomenon. What made the constitutional model so appealing was not only the guarantee of fundamental rights – important as they were – but also a structure and an order that promised to prevent the concentration of power in the hands of a single tyrant. . This structural promise powerfully attracted a world still reeling from the indomitable government powers of totalitarian regimes.
Observers who downplay the desirability of US constitutional influence often fall prey to two related errors. They are mistaken about the usefulness of a constitution and how it does its basic work.
Start with the purpose of the Constitution. There is no constitution to right all wrongs or to enshrine any valid policy as basic law. In this regard, I often caution students of the Constitution against two related fallacies.
The first is the “Vanilla Ice Cream Theory of Constitution”. Most readers remember the famous rapper’s boast: “If there’s a problem, yo, I’ll fix it.” The Constitution does not make such a promise, and neither should it.
Similar is the “Sound of Music” fallacy, whereby every reader goes through the text of the Constitution and finds there “some of my favorite things”. There is, and should be, a gap between what the Constitution guarantees and what every citizen desires.
The Constitution is a framework, not a substitute, for democratic politics. To achieve this goal, the Constitution must guarantee a limited range of rights which are truly fundamental – the rights of conscience and expression, fair procedures and equal treatment. But courts and citizens must exercise caution. Paradoxically, each time a constitution enshrines – or a court invents – a new fundamental right, the field of political freedom narrows. And that, over time, can be unhealthy for a democracy.
Many politically engaged citizens applaud when courts recognize attractive rights as constitutional rights. But, as John Marshall, our greatest Chief Justice, once wrote, a constitution is “destined to last for centuries to come.” Constitutional questions must always be approached with a long-term view. We should ask ourselves what things might look like when the other party is in power. Always imagine the shoe placed on the other foot.
What a court gives, it can also withdraw. And he can always put something different – maybe something very little to your liking – in his place.
The emphasis on new rights also obscures the true source of constitutional freedom, which lies less in rights provisions than in structural protections. In the United States, a greater amount of freedom has been secured by the structural features of the Constitution – by federalism and the separation of powers – than by its guarantees of rights. “Each banana republic,” observed the late judge Antonin Scalia, “has a charter of rights.
Some are quite lavish. North Korea’s constitution charmingly enshrines the “right to rest and leisure”. But without structural guarantees, these succulent rights are worthless.
“Structure,” Scalia insisted, “is everything. Structure is certainly where the United States Constitution has exercised its greatest influence – globally as well as nationally, though this influence is often unrecognized or unrecognized.
None of this is to say that the Constitution of the United States has always been, or should be, the primary influence on other constitutions. It would be a sad commentary on human ingenuity if other nations had not learned and improved upon the American example. But to downplay America’s constitutional influence is to ignore the reality of the country’s most important contribution to world history.
Consider a literary analogy. Dante, who could not read Greek and had limited access even to Latin translations of Greek texts, was surely more directly influenced by Virgil than by Homer. But without Homer, Dante would never have written an epic – and neither would Virgil. The Constitution of the United States is to modern governance what Homer is to Western literature: the influence that has influenced all other influences.
At the same time, Americans should be humble enough – and curious enough – to learn about the constitutions of other countries. “These countries,” observed New York Federal Court of Appeals Judge Guido Calabresi, “are our” constitutional offspring “and the way they have dealt with issues similar to ours can be of great use to us when we are faced with to difficult constitutional issues. Wise parents do not hesitate to learn from their children.
In 2019, Frank-Walter Steinmeier, President of the German Republic, delivered a speech in honor of the 70th anniversary of the German Constitution in Berlin. “Exactly 70 years ago today,” he intoned, “on May 23, 1949, nothing short of a miracle happened.” If the German Constitution seems miraculous seven decades later, the American Constitution seemed miraculous even to those who wrote it.
George Washington and James Madison both used the term miracle to describe the work of the convention to contemporary correspondents. But Washington did not think, far from it, that he and his fellow editors had had the last word. “I don’t think,” he wrote to his nephew, future Supreme Court justice Bushrod Washington, “that we are more inspired, have more wisdom or have more virtue than those who will come after us. . ”
The role of the American Constitution in the diffusion of constitutionalism and constitutional principles in the world is not the least miraculous product of the “miracle of Philadelphia”. This too remains a work in progress. “Power under the Constitution,” as Washington reminded its nephew, “will always be in the people.”
Justin Collings is Professor in the Law School at Brigham Young University.
This story appears in the July / August issue of Déseret Magazine. Learn more about how to subscribe.