It’s the System, Stupid

On page one of yesterday’s New York Times, under the headline ‘WE THE PEOPLE’ LOSES FOLLOWERS, the estimable Adam Liptak reported that the Constitution of the United States—“the nation’s founding document and sacred text,” “the oldest written national constitution still in force anywhere in the world”—is in rapid decline as the model of choice for the rest of the world.

“In 1987,” Liptak wrote,

on the Constitution’s bicentennial, Time magazine calculated that “of the 170 countries that exist today, more than 160 have written charters modeled directly or indirectly on the U.S. version.”

A quarter-century later, the picture looks very different. “The U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere,” according to a new study by David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia.

The study, to be published in June in The New York University Law Review, bristles with data. Its authors coded and analyzed the provisions of 729 constitutions adopted by 188 countries from 1946 to 2006, and they considered 237 variables regarding various rights and ways to enforce them.

“Among the world’s democracies,” Professors Law and Versteeg concluded, “constitutional similarity to the United States has clearly gone into free fall.”

I’ve had a look at the study itself, and I can report that it has a problem, which Liptak hints at in the phrase I’ve bolded above.

The problem is that the study focusses almost exclusively on rights—the individual and civil rights that are specified in written constitutions. But it almost totally ignores structures—the mundane mechanisms of governing, the nuts and bolts, which is mainly what constitutions, written and unwritten, are about, and which determine not only whether rights are truly guaranteed but also whether a government can truly function in accordance with democratic norms. Or function at all with any semblance of efficiency, effectiveness, and accountability.

Law and Versteeg make an irrefutable case that foreign bills of rights have gone well beyond our 1791 model and its supplementary amendments, such as the Fourteenth (due process) and Nineteenth (women’s suffrage). Like ours, almost every constitution on earth claims to uphold freedom of religion, freedom of speech and the press, the right of assembly, and protection from arbitrary arrest and imprisonment. Unlike ours, though, other constitutions have increasingly specified additional rights and freedoms, like equality for women, freedom of movement, the right to form unions and go on strike, and the right to an education.

But are enumerated rights really the best way to compare constitutions? And is the relative paucity of enumerated rights in our Constitution really the reason other countries have increasingly turned away from it as a model?

To be fair to Law and Versteeg, they do take a glance at structure. But it’s pretty cursory. They devote only six of their eighty-six pages to it, in a subsection entitled “The Flagging Popularity of the Structural Constitution.” And they consider only three aspects of America’s constitutional structure—and, with one exception, they’re the wrong ones.

“Federalism” gets twelve lines of text. And federalism is simply irrelevant to most countries. It’s an artifact of the histories of particular countries—countries which, like Germany, Russia, Belgium, India, and the United States, owe their existence to the relatively recent coming together of different and/or dissimilar sovereign states or ethno-national groups. Whether or not a given country adopts federalism has nothing to do with whether or not it takes any constitutional inspiration from the U.S. in some broader way.

“Judicial Review” gets four of those six paltry pages. “It is perhaps ironic,” the authors note, “that the most popular innovation of American constitutionalism has been judicial review, given that this celebrated institution is nowhere mentioned in the U.S. Constitution itself.” As they point out, in most countries judicial review—the ability of judges to strike down legislation or forbid executive actions deemed incompatible with the rights and procedures specified in a constitution—is vested in a special constitutional court, not in the regular appellate courts, as it is here. But again, these differences are at best tangential to the growth of other countries’ disenchantment with the American model. If judicial review is the most popular innovation of American constitutionalism, one has to ask: Why are the others so _un_popular?

“Presidentialism”—meaning, essentially, a divided system like ours, with a president and a separately elected legislature—gets a paragraph, and here the authors are finally onto something. They write that

presidentialism enjoyed early popularity in Latin America. Many of these early Latin American experiments with presidentialism degenerated into dictatorial rule, however, and these failures helped to give presidentialism itself a bad name and to discourage other nations from adopting similar systems…. In absolute terms, the parliamentary model has consistently been the most popular of the three and is at present the choice of roughly half of the world’s democracies.

Unfortunately, Law and Versteeg show no curiosity as to why those Latin American regimes, having thoughtlessly aped Uncle Sam, degenerated into dictatorships. It certainly wasn’t because they didn’t have long enough lists of supposedly guaranteed rights in their constitutions. Might it not have been because presidential systems, which invite conflict between their executive and legislative branches, are so bad at making coherent policy and making it stick? Because the political paralysis that that conflict often produced made it so hard for those countries to deal effectively with their social and economic problems? Because, in a crunch, something had to give, and what usually happened was either a plain old military coup or an autogolpe, in which an elected president, whose legitimacy was nationally based, used his control of the army to dissolve the legislature and seize total power?

Nor do the authors show any interest in the fact that “the parliamentary model” comes in many different varieties. The oldest such model, Britain’s Westminster system of single-member geographic districts, has proved even less popular than the American (or any other) presidential system. For going on a century now, apart from former British colonies like India and Pakistan, not a single new democracy has adopted either an American-style presidential system or the old British system. Almost all have opted for parliamentary systems with some form of proportional representation—systems that combine most of the “energy” of a unitary government like Britain’s, which can carry out its program and be judged on the results, with a guarantee of both majority rule and minority representation, which neither the British nor the American systems can reliably provide. Even the British themselves have moved away from the Westminster model for the new provincial governments of Scotland, Wales, and Northern Ireland.

Last summer, when Standard & Poor’s downgraded the former triple-A rating of the United States, they didn’t say anything about rights. They said they were worried about “structural issues”—specifically, “what we see as America’s governance and policymaking becoming less stable, less effective, and less predictable than what we previously believed.” On that point, S.&P. is just catching up with the rest of the world.