The United States Constitution Has Seen Better Days…

… And It’s Seen Too Many Days

Yes, it’s the nation’s founding document and sacred text. It’s also the oldest written national constitution in the world still in force. However, its influence is waning, and it’s in desperate need of modernization — it’s just too old and outdated a document and not as good at establishing and preserving modern rights as other examples.

At the Constitution’s 1987 bicentennial, Time magazine figured that “of the 170 countries that exist today, more than 160 have written charters modeled directly or indirectly on the U.S. version.”

Twenty-five years on, the picture is quite 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.

  • Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. Constitution
  • Over the course of the 1980’s and 90’s, this process reversed course
  • Then the arrival of the twenty-first century ushered in a steep plunge that continues to today, such that the constitutions of the world’s democracies are overall less similar to the U.S. Constitution than at the end of World War II.

Why the free fall for the U.S. Constitution as the exemplar?

  • The United States Constitution is terse and old, but mostly it guarantees relatively few rights.
  • Nor does it help that some members of the Supreme Court seem committed to interpreting the Constitution with an 18th century perspective. Moreover, the Constitution’s waning influence may be part of a general decline in American power and prestige.
  • Professor Law identified a central reason for the negative trend: the availability of newer, hipper, and more powerful alternatives in the constitutional marketplace… “Nobody wants to copy Windows 3.1,” he said.

In a recent television interview, Supreme Court Justice Ruth Bader Ginsburg agreed, “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. Instead, Ginsburg recommended the South African Constitution, the Canadian Charter of Rights and Freedoms, or the European Union Charter of Fundamental Rights — my preference (see my previous blog post).

Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,” “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” True, the rights guaranteed by the American Constitution are few by international standards, and they are frozen in amber (see my recommended reading list that includes “The Frozen Republic”).

Consider, also, that other nations routinely trade in their constitutions entirely, replacing them on average every 19 years. Coincidentally, Thomas Jefferson, in a 1789 letter to James Madison, once said that every constitution “naturally expires at the end of 19 years” because “the earth belongs always to the living generation.” In today’s modern world, the commonality between the rights most popular around the world and those guaranteed by the U.S. Constitution is minimal.

What’s Up With The Constitution?

  • Sure, we’ve got some truly great protections that I would never want to give up. Americans recognize rights to a speedy and public trial and also prohibits government establishment of religion.
  • Importantly, though, the Constitution is out of step with the rest of the world in failing to protect, outright, a right to travel, the presumption of innocence, and entitlement to food, education and health care.
  • Though it ticks off the NRA lobby and gun fanatics, only 2 percent of the world’s constitutions protect, as the Second Amendment does, a right to bear arms. Time for us to give up on this one, intended solely as a means to expeditiously raise a militia from an age without a standing professional military (I think we’ve got this one covered pretty well now… too well for my preference).
  • Foreign judges are today less likely to cite decisions of the United States Supreme Court, in part because of what they consider its parochialism (provincial, small minded).

“America is in danger, I think, of becoming something of a legal backwater,” Justice Michael Kirby of the High Court of Australia said in a 2001 interview. He said that he looked instead to India, South Africa and New Zealand.

The new study cited above also reveals that the Canadian Charter of Rights and Freedoms, adopted in 1982, may now be more influential than its American counterpart.

The Canadian Charter is both more expansive and less absolute. It guarantees equal rights for women and disabled people, allows affirmative action and requires that those arrested be informed of their rights. On the other hand, it balances those rights against “such reasonable limits” as “can be demonstrably justified in a free and democratic society.”

Still, some of our current conservative justices just don’t get it and display a smug attitude — as Justice Antonin Scalia told the Senate Judiciary Committee in October, “Every banana republic in the world has a bill of rights… Whoa, that is wonderful stuff!”

“Of course,” Justice Scalia continued, “it’s just words on paper, what our framers would have called a ‘parchment guarantee.’” That’s correct, and it’s clear Scalia intends to see that — even though it is limited and outdated — the U.S. Constitution should only ever be nothing more than mere words, not actual rights and protections in a modern world.

Presidential Candidates Don’t Understand The Constitution & Seek To Make It Less Protective

During Meet The Press on Sunday morning, David Gregory asked Rick Santorum what he would do if the Supreme Court upholds the ruling made by the Ninth Circuit Court to strike down Prop 8, banning same-sex marriage.

Santorum said he would overturn Roe v. Wade and any Supreme Court ruling that makes same-sex marriage legal.

“I would do the same thing I would with Roe v. Wade, which I would seek to try and overturn it. I think judicial tyranny is a serious issue in this race and this country. And we need judges who respect the people’s voice. Let the people decide with respect to what the constitution says, if in fact they would go through a constitutional amendment process.”

Santorum is unhinged for suggesting that “the people” should be able to decide which specific persons have rights in this country. Last time I checked, the Constitution guarantees American citizens equality under the law, personal liberty, and privacy.

No, Santorum doesn’t get that the courts were partly established to prevent the tyranny of the majority. So, no tea party boy, the fact that people vote for something does not make it right or legal, and the courts are the only way to prevent mob rule and abuse.

Santorum sounds a lot like Newt Gingrich when it comes to usurping the limited protections of the Constitution and the courts. Like Gingrich, Santorum thinks he has the power to overrule Supreme Court decisions with which he takes exception.

The only problem is, the President cannot overrule the Supreme Court. Gesh, oh really?

Only the American people can do that via constitutional amendment. That’s how basic checks and balances work.

It’s embarrassing to hear an American Presidential candidate assume that they have powers that they don’t actually have.

And, maybe that reality and our overall citizens’ tea-party parochialism should make us think about whether it’s better to have an outdated document as a Constitution or risk it becoming even worse! Oy Vey! Such options.


One response to “The United States Constitution Has Seen Better Days…

  • laurensheil

    Ammending the Canadian Charter of Rights and Freedoms is far from a simple task. It requires unanmous concent of all 10 provices. Of course it’s only been ratified by 9 out of 10 provinces so until Quebec even agrees in principle with the charter it’s actually impossible to ammend. The last we tried to bring Quebec on side it nearly tore the country apart.

    That being said, for the 90 percent of provinces that are in agreement it is a far superior document to the US Constitution and has been used as the basis for legalizing all kinds of personal choices. Most notably it was a charter challenge the made Canada the first nation in the world to completely legalize same sex unions and will likely see us legalize marijuana in the near future.

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