Monday, September 26, 2011
Law Review Article of the Day: "The Declining Influence of the United States Constitution" by David Law and Mila Versteeg
"The Declining Influence of the United States Constitution" New York University Law Review, Vol. 87, Forthcoming by DAVID S. LAW, Washington University in Saint Louis - School of Law, Washington University in Saint Louis - Department of Political Science and MILA VERSTEEG, University of Virginia - School of Law.
ABSTRACT: It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries. In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream. We then evaluate the possibility that an alternative paradigm, in the form of either a prominent national constitution or a human rights treaty, has emerged as a newly dominant constitutional model. First, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some support in the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution-making in other countries. To the extent that the Canadian Charter influences constitution-writing in other countries, however, the data suggest that its influence is not uniform or global in scope but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, South Africa, or India. Second, we explore whether various international and regional human rights instruments have influenced the manner in which constitutions are written. On the whole, we find little evidence to indicate that any particular international or regional treaty serves as a universal model for constitution-makers. Some noteworthy patterns of similarity do exist: for example, the constitutions of undemocratic countries tend to exhibit relatively greater similarity to the Universal Declaration of Human Rights, while those of common law countries exhibit the opposite tendency. It is difficult to infer from these patterns, however, that countries have actually emulated international or regional human rights instruments when writing their constitutions.