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9.07.2011

The Declining Influence of the United States Constitution

Mila Versteeg and I have just posted to SSRN a paper that might be of interest to readers of this blog entitled "The Declining Influence of the United States Constitution". It follows up on an earlier article, imminently forthcoming in the California Law Review, in which we took a very bird's eye view of the evolution and ideology of global constitutionalism. This time, we zoom in and take an empirical look at whether constitution-makers in other countries (still) emulate the U.S. Constitution. (The title of the paper offers a hint as to what we conclude.) We also look for evidence that international or regional human rights instruments have influenced the way in which national constitutions are written, but the evidence is underwhelming.

Here's the 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 becoming increasingly out of sync with these global practices.

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.

***

Our findings as to the impact of international law depart a bit from those reported in an earlier working paper by Tom Ginsburg, Zach Elkins, and Beth Simmons – familiar names to readers of this blog – who find that constitutions adopted after adoption of certain international human rights instruments (the ICCPR, UDHR, and American Convention on Human Rights) look more like those covenants than constitutions that were adopted beforehand. By contrast, we fail to find evidence that constitutions wind up looking more like these treaties after the treaties come into force. Although our paper, like theirs, seeks evidence of influence in the form of patterns of similarity, the data and methodology are otherwise different.

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