Expert Commentary

Declining influence of the United States Constitution

2012 study in New York University Law Review on the similarity between the U.S. Constitution and other international constitutions between 1946-2006.

The U.S. Constitution has been a respected model for governance around the world for two centuries. According to a 2012 study by scholars from Washington University and the University of Virginia School of Law, as of 1987, 160 of 170 international constitutions were based at least partially on it. But 25 years later, is this still the case as constitutions continue to be written and revised?

Published in the New York University Law Review, “The Declining Influence of the United States Constitution” examines 729 federal constitutions from 188 countries written between 1946 and 2006 for their resemblance to the U.S. Constitution. The similarity of each document to the U.S. version is assessed based on 237 variables, with a specific focus on human rights. The researchers also investigate the constitutions’ resemblance to leading human rights treaties or the more recently drafted or revised constitutions of Canada, Germany, South Africa and India.

Key study findings include:

  • Compared to a “generic bill of rights” compiled from 60 human rights found in more than 70% of the world’s constitutions as of 2006, the U.S. Constitution guarantees relatively few rights. It contains fewer than half (26 of 60) of the provisions of the “generic bill of rights,” such as women’s rights or health care. In contrast, the “U.S. Constitution is, instead, rooted in a libertarian constitutional tradition that is inherently antithetical to the notion of positive rights.”
  • Freedoms of religion, the press and self-expression, a guarantee of equality for all, the right to private property and the right to privacy are found in 97% of constitutions. Rights present in 10% or fewer of these constitutions included those for victims of cruelty, legal protection of fetuses and the right to bear arms. In addition to the United States, the “only other constitutions in the world today that still feature [the right to bear arms] are those of Guatemala and Mexico.”
  • “The 1990s — a period of intense constitution-making activity [in Africa, Asia, Central and Eastern Europe] during which American victory in the Cold War might have been expected to translate into American constitutional influence — actually saw a noticeable decline in average similarity to the U.S. Constitution.”
  • “Whereas the average constitution has a 38% chance of being revised in any given year and is replaced every 19 years, the U.S. Constitution has survived over two centuries and been amended only once in the last 40 years. Critics have thus argued that the U.S. Constitution is in many respects dysfunctional, antiquated and sorely in need of repair.”
  • Overall, the analysis suggests that the “fact that the U.S. Constitution departs in so many ways from the global mainstream hints strongly at the possibility that the U.S. Constitution is not widely emulated.” The research suggests that Canada’s constitution, revised in 1982, is now a leading international model rather than that of the United States.

The authors conclude: “Rather than leading the way for global constitutionalism, the U.S. Constitution appears instead to be losing its appeal as a model for constitutional drafters elsewhere. The idea of adopting a constitution may still trace its inspiration to the United States, but the manner in which constitutions are written increasingly does not.”

Tags: human rights, law, guns, civil rights

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