A couple of days ago the New York Times published a front-page article by Adam Liptak headlined, “‘We the People’ Loses Appeal with People Around the World.” The information presented in that article didn’t strike me as a supporting the headline, so I went to look for the abstract of the underlying paper in the New York University Law Review.
David S. Law and Mila Versteeg summarize their findings this way:
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. . . .The Times article focuses almost entirely attention on the rights enumerated in different constitutions. There’s even a chart. It says little about governmental structure, but the paper does cover that topic.
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.
The Canadian Charter was instituted in 1982. I’m not surprised that it reflects today’s understanding of human rights better than the U.S. Constitution’s guarantees, which come mainly from the first federal Congress. The oldest parts of our Constitution reflect eighteenth-century Whig ideology and controversies, with the inherent limitations of that society.
Some of the rights that Law and Veerstag looked for, such as a presumption of innocence in criminal trials, aren’t part of the U.S. Constitution but nonetheless part of U.S. law. They’re probably part of U.S. culture as well; we citizens would be upset not to have them. Perhaps they should be in the national charter, but as a nation we’ve been reluctant to amend the Constitution—or maybe its amendment process is too difficult.
It’s also no surprise to anyone who reads a newspaper that a lot more governments have a prime minister reflecting a parliamentary majority than the U.S. of A.’s structure of divided government. Even our own government chose a parliamentary system for Japan after World War 2. And no country, to my knowledge, has copied the American Electoral College.
On the other hand, one important aspect of the U.S Constitution has remained very influential, it seems to me: the fact that there is a written constitution that takes its authority from “We the People.” The requirement of a written constitution, drafted and ratified by people who at least claimed to represent the population, underlies most of the world’s present constitutions. There weren’t a lot of examples of that in 1787. Many of them, in fact, came from the American states. For most statesmen then, a nation’s “constitution” was an abstraction, a status rather than a set document, like an individual’s medical constitution.
In that respect, every country that sits down to write a national constitution has been influenced by the U.S. document, even if they choose models that offer more individual protections and a different structure of government. Article 2 or the Third Amendment might not be models, but “We the People” still has appeal.