Law’s Empirical Research on U.S. Constitution’s Declining Global Influence Discussed in New York Times
Professor David S. Law's co-authored article, “The Declining Influence of the United States Constitution,” uses empirical research to demonstrate that other countries are increasingly turning to sources other than the U.S. Constitution for guidance in establishing human rights provisions and for general structural provisions in creating their constitutions.
The article, which will appear in the New York University Law Review, is the subject of a New York Times column, “We the People’ Loses Appeal With People Around the World.”
Law and co-author, Mila Versteeg, University of Virginia, note: “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."
Their research, which examined 729 constitutions adopted by 188 different countries from 1946 to 2006, also found little emulation of the constitutions of Germany, South Africa, and India. Similarly, no particular treaty or international human rights instrument stands out as an overall model. However, they did note links between constitution-making in other countries and the Canadian Charter of Rights and Freedoms, although the tie-in was not uniform.
The two did find “some noteworthy patterns of similarity,” including: “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.”
Overall, newer constitutions are part of a “polycentric evolutionary process” that does not favor modeling based on a “specimen that is frozen in time.” The authors observe: “If the United States were to revise the Bill of Rights today—with the benefit of over two centuries of experience, and in a manner that addresses contemporary challenges while remaining faithful to the nation’s best traditions—there is no guarantee that other countries would follow its lead. But the world would surely pay close attention.”
Law and Versteeg also have a forthcoming article, “Sham Constitutions,” which picks up on another topic in the New York Times column—namely, many countries have a bill of rights, but they don’t always live up to the wording. “Our next paper looks empirically at which countries are guilty of having sham constitutions—constitutions that sound good, but the country fails to deliver in practice,” Law says.
Additionally, Law comments on the Comparative Constitutions Blog on a recent interview with Justice Ginsburg discussing Egypt looking to countries with more recent constitutions than the United States. Law observes: “The question of where constitutional drafters should and actually do look for inspiration has always been a topic of tremendous interest and importance to other countries, not to mention comparative constitutional law scholars. Quite possibly, Justice Ginsburg's comments and some media coverage could (re)focus the attention of a wider audience on comparative constitutional law in a way we haven't seen since the initial furor over Supreme Court citation of foreign law in hugely controversial cases such as Lawrence v. Texas.
“And to the extent that this new topic attracts the attention of non-comparative constitutional scholars, perhaps the focus might even shift away from the usual scholarly preoccupation with judicial interpretation, toward the actual writing of constitutions in other countries (or, failing that, how the U.S. Constitution itself could perhaps be revised). That would, in my view, be an extremely healthy thing.”