A decade ago, the Arab Spring raised the startling prospect that, in short order, a half-dozen Arab nations might draft and adopt new democratic constitutions. That isn’t, of course, how things played out, but the heady prospect of such rapid-fire constitution-making spurred robust and widespread discussion and debate.
Into that global conversation stepped Ruth Bader Ginsburg, a sitting justice of the U.S. Supreme Court, with some surprising advice.
“I would not look to the U.S. Constitution,” Ginsburg observed in an interview, “if I were drafting a constitution in the year 2012.” She might, instead, look to South Africa, or to some other constitution more recent, more relevant and more refined.
Ginsburg’s comments shocked some Americans and delighted others. But apart from the question of where new democracies should look for inspiration lies the practical question of where they do look for inspiration.
To hear some observers tell it, the U.S. Constitution has, in the eyes of other nations, become a museum piece — a curiosity, a period drama, irrelevant to our times. These observers have half of a small point that obscures a large one. Developing democracies frequently look outside the U.S. for constitutional guidance and models. But the constitutions to which they look wouldn’t exist at all absent the American example, by which those other models were themselves heavily influenced.
The very idea of a written constitution — a fundamental law, enforced by an independent judiciary, that both creates and limits government power — is an American original. And yes, other constitutional cultures look to one another. But, by doing so, more often than not, they are looking indirectly to America.
In 1934, Hans Kelsen was a demoralized, depressed and devastated man. His life’s work lay in ruins; Kelsen himself was in exile. In 1920, he had drafted a republican constitution for his native Austria and had designed a newfangled “constitutional court” to enforce it. Now, for all practical purposes, Kelsen’s court and his constitution were no more. The rise of totalitarianism had crushed both.
Kelsen soon left Austria — first for Germany in 1930 and later, after Hitler’s seizure of power, Switzerland. Kelsen’s Jewish ancestry made it unsafe for him to remain in either Austria or Germany. In 1940, the great thinker emigrated to the United States, where he lectured at Harvard before landing at Berkeley.
When Kelsen fled Europe, democratic constitutionalism was on the retreat all over the planet. Only the United States had a written constitution with a bill of individual rights enforced by an independent judiciary. Other countries might have nominal constitutions, but these, by and large, could be altered by simple legislation whenever the parliament pleased.
The decade that followed Kelsen’s arrival in the United States witnessed an unprecedented storm of state-sponsored butchery. Millions were murdered in Nazi death camps; millions more perished in Soviet gulags. But these are only the most notorious examples. Scores of millions in dozens of nations experienced the perversion of basic rights on a staggering, sickening scale. The prospects for democratic constitutionalism, for Hans Kelsen and others, looked bleak.
Since 1945, however, constitutionalism has swept the planet. Virtually every sovereign state on earth now has a written constitution, including Kelsen’s native Austria. Many have departed from the American model in crucial particulars — including by embracing Kelsen’s specialized model of what judges could review — but most have embraced a fundamentally American idea: a written constitution, backed by an independent judiciary and bolstered by structural constitutional protections.
In the relatively short space of 76 years, an American original has now become a global phenomenon. What made the constitutionalist model so alluring wasn’t just the guarantee of basic rights — as important as they are — but also a structure and ordering that promised to prevent the concentration of power in a single tyrant’s hands. That structural promise appealed powerfully to a world still reeling from the untamed government powers of totalitarian regimes.
Those observers who downplay the desirability of American constitutional influence often fall prey to two related errors. They are wrong about what a constitution is for and how it does its basic work.
“The U.S. Constitution is to modern governance what Homer is to Western literature: the influence that influenced all other influences.”
Start with the Constitution’s purpose. A constitution does not exist to right all wrongs or to enshrine every worthwhile policy as fundamental law. In this regard, I often warn students of the Constitution against two related fallacies.
The first is the “Vanilla Ice Theory of the Constitution.” Most readers remember the rapper’s famous boast: “If there’s a problem, yo, I’ll solve it.” The Constitution makes no such promise, nor should it.
Similar is the “Sound of Music” fallacy, by which each reader scans the Constitution’s text and finds therein “a few of my favorite things.” There is, and should be, a gap between what the Constitution guarantees and what each citizen desires.
The Constitution is a framework, not a substitute, for democratic politics. To serve that purpose, the Constitution must guarantee a limited range of rights that are truly fundamental — rights of conscience and expression, fair procedures and equal treatment. But courts and citizens should tread cautiously. Paradoxically, every time a constitution enshrines — or a court invents — a new fundamental right, the scope of political freedom actually narrows. And that, over time, can be unhealthy for a democracy.
Many politically engaged citizens applaud when courts recognize attractive entitlements as constitutional rights. But, as John Marshall, our greatest chief justice, once wrote, a constitution is “intended to endure for ages to come.” One should always approach constitutional questions by taking the long view. One should ask how things might look when the other party is in power. One should always imagine the shoe being placed on the other foot.
What a court gives, it can also take away. And it can always put something different — perhaps something very much not to your liking — in its place.
A focus on novel rights also obscures the real source of constitutional freedom, which lies less with rights provisions than with structural protections. In the United States, a greater sum of liberty has been secured by the Constitution’s structural features — by federalism and the separation of powers — than by its rights guarantees. “Every banana republic,” observed the late Justice Antonin Scalia, “has a bill of rights.”
Some are quite lavish. North Korea’s constitution charmingly enshrines the “right to rest and leisure.” But without structural guarantees, such succulent rights are worthless.
“Structure,” Scalia insisted, “is everything.” Structure is certainly the realm where the U.S. Constitution has exerted its greatest influence — globally as well as domestically, even if that influence often goes unappreciated or unacknowledged.
None of this is to say that the U.S. Constitution has always been, or ought to be, the primary influence for other constitutions. It would be a sad commentary on human ingenuity if other nations had not learned from and improved upon the American example. But to downplay America’s constitutional influence is to ignore the reality of the country’s most important contribution to world history.
Consider a literary analogy. Dante, who couldn’t read Greek and had limited access even to Latin translations of Greek texts, was surely more directly influenced by Virgil than by Homer. But without Homer, Dante never would have written an epic — nor Virgil either. The U.S. Constitution is to modern governance what Homer is to Western literature: the influence that influenced all other influences.
At the same time, Americans should be humble enough — and curious enough — to learn about other countries’ constitutions. “These countries,” observed Guido Calabresi, a judge on the federal appeals court in New York, “are our ‘constitutional offspring’ and how they have dealt with problems analogous to ours can be very useful to us when we face difficult constitutional issues. Wise parents do not hesitate to learn from their children.”
In 2019, Frank-Walter Steinmeier, the president of the German Republic, gave a speech honoring the 70th anniversary of the German Constitution in Berlin. “Exactly 70 years ago today,” he intoned, “on May 23, 1949, there transpired nothing short of a miracle.” If the German Constitution looks miraculous seven decades on, the U.S. Constitution seemed miraculous even to those who drafted it.
George Washington and James Madison both used the term miracle in describing the convention’s work to contemporary correspondents. But Washington did not think, by any stretch, that he and his fellow framers had spoken the final word. “I do not think,” he wrote to his nephew, a future Supreme Court justice, Bushrod Washington, “that we are more inspired, have more wisdom, or possess more virtue than those who will come after us.”
Not the least miraculous product of the “miracle of Philadelphia” has been the U.S. Constitution’s role in spreading constitutionalism and constitutional principles around the world. That, too, remains a work in progress. “The power under the Constitution,” as Washington reminded his nephew, “will always be in the People.”
Justin Collings is a professor at Brigham Young University Law School.