Americans believe their constitution to be the best in the world. The world once agreed, but now it’s moving on.
Perhaps the most surprising thing about the United States Constitution is that it exists at all. America’s Founding Fathers bitterly debated its myriad provisions and protections, splitting on controversial issues of the day like states’ rights and racial equality. Few left Philadelphia satisfied with the state of American government, while others worried that the union itself might come undone.
If that sounds familiar, it may be because the constitution they devised ranks among the world’s most difficult to amend. Though national consensus has evolved on a wide variety of issues, very little of that change has been codified in the nation’s supreme law. The United States increasingly relies on the Supreme Court to ensure constitutional relevance, but respect for the Court and its decisions has tumbled in recent years. The opinions of nine unelected justices serving life terms have proven far less stable than the collected instructions of national legislatures. Everyone has noticed the impact of these factors on domestic politics, but you made me surprised to learn what effect they’ve had abroad.
Though Americans invested significant blood and treasure in securing their constitution, foreigners were arguably even more enamored of the document and its principles. Time Magazine calculated in 1987 that “of the 170 countries that exist today, more than 160 [had] written charters modeled directly or indirectly on the U.S. version.” For the mathematically challenged, that’s a staggering ninety-five percent. But that was 1987, and times have changed. The 20th Century served America well, cementing her superpower status as copycat regimes took hold across the decolonizing world. Now those regimes have grown up, and in many cases moved on.
Considered radical for 1787, the U.S. Constitution lags far behind modern notions of political, civil, and human rights. Though much of the Bill of Rights was adapted and replicated elsewhere, other countries have since added constitutional protections unheard of in America. The South African charter, for example, explicitly guarantees rights to basic health care, a sustainable environment, and free fundamental education. Meanwhile, Americans remain mired in relatively trivial debates concerning the Affordable Care Act, Environmental Protection Agency, and Department of Education. As much as they might benefit from a South African approach, it’s unlikely similar clauses will migrate back across the Atlantic.
A recent study dug deeper, analyzing the core provisions of 729 constitutions adopted by 188 countries from 1946 through 2006. Researchers considered 237 variables representing various rights, privileges, and legal protections across a wide range of issues. Their question: How many countries still pattern their governments on the American model? The answer: Not many, and fewer by the day. America may hold the original template, but its reluctance to modify the charter has kept it largely stuck in the 18th Century while the world sets its sights on the 21st and beyond.
More to the point, the American obsession with “what the Founders wanted” has slowed constitutional development to a crawl. We repeatedly choose to defend the values of the past — take the Second Amendment’s right to bear arms, a right guaranteed by only 2% of modern constitutions — over those of the present like health care and education. Even Supreme Court Justice Ruth Bader Ginsburg remarked that she “would not look to the United States Constitution if I were drafting a constitution in the year 2012.” Her alternate recommendations? The aforementioned South African Constitution for its comprehensive approach or the European Convention on Human Rights for wide-ranging protections on personal liberty.
And there’s another constitution the justice recommended in lieu of her own; that of Canada. Her reasoning there likely concerns judicial review, the process by which the U.S. Supreme Court rules on the constitutionality of laws enacted by Congress and actions taken by the President. The term doesn’t appear in the Constitution, but was instead created by the Court in the Marbury v. Madison decision of 1803. In many ways elevating the judiciary above the other branches of government, the decision also empowered the Court to redefine its scope and abilities without congressional oversight or presidential authorization.
The American method relies on the promise that justices exercise their growing powers of review responsibly. Canadians aren’t so trusting, charging their court with specific responsibilities over specific segments of constitutional law. The result has been a stabler system with far less potential for abuse or unintended accumulation of power. Moreover, the Canadian judiciary suffers less of the opportunistic interpretation that plagues its southern counterpart. While American justices often claim the Founders’ mantle for their own modern ideologies, Canadian justices are forced to work within narrow confines that discourage “originalist” reinterpretation. Don’t tell Antonin Scalia.
Europe, South Africa, and Canada are ahead of the constitutional curve in more ways than one, and it’s unlikely America will catch up soon. Between our national obsession with preserving the the “original intent” of archaic Founders and the burdensome process of constitutional amendment, the U.S. Constitution sets a poor example for emerging democracies. Those shedding communism or tyranny require flexibility, something our constitution lacks by design. And there’s little incentive for modern nations to adopt a Bill of Rights that sidestepped even the most trivial concerns surrounding race, gender, and sexual orientation.
In the end, it may be a wash. Nothing will ever erase the revolution in republican government launched by U.S. Constitution in 1787. Fewer countries may copy its text today, but even the Founders took ideas from around the world and across history. Americans should applaud rather than condemn such diligence, and perhaps turn a more critical eye to their own founding charter. As a nation, we have always bent toward self-improvement. The Constitution is impressive, but it cannot be exempt.