The Shrinking Stature of the US Constitution

In the last two countries the United States invaded, Afghanistan and Iraq, officials subsequently set up parliamentary and not republican forms of government, with a unicameral Parliament rather than a bicameral legislature. Afghanistan does have a Presidential system and is thus somewhat closer to the US form of government, but the President in Iraq is an appointed figurehead.

So why does the United States opt for non-US forms of government in these countries we occupy? It’s a symbol of a larger trend. As Adam Liptak remarks, the US Constitution has become less of a model around the world.

In 1987, 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 […]

“Among 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.”

Maybe the reason that the US Constitution has waned as a model for the world is that politicians in this country spend so much time trying to end-run it. And when they don’t or can’t, they point to Constitutional provisions as the reason for the legislative paralysis in the country. The biggest one of these, the filibuster, doesn’t appear in the Constitution at all. But it has become a symbol for a system that has simply too many veto points to allow for quick decision-making in a fast-changing world. It’s also nearly impossible to change.

You can also read this as a symbol of weakening American influence generally. Even now, we’re seeing in Iraq, one of those aforementioned occupied countries, that the removal of US troops is leading to a sharp scale-back of the diplomatic effort (which I actually think is welcome news; we don’t need 16,000 US personnel in an embassy). We have a more limited set of tools to control events, and countries increasingly do not want to be saddled with a narrowly-cast governing document built for an agrarian society and tilted toward its landed gentry.

I take solace in knowing that the Canadian Charter of Rights and Freedoms, with its guarantees of equal rights for women and the disabled, and allowances for affirmative action, is admired much more greatly around the world. But I actually agree with Antonin Scalia at the end of Liptak’s piece, when he says that every country has a Bill of Rights and the key is how the country enforces it. Sadly, I don’t think the US comes out looking so good in that scenario.

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