Our Unlovable Constitution

A new study by David S. Law and Mila Versteeg concludes that the world’s democracies are no longer emulating the U.S. Constitution, and are instead resorting to other templates that guarantee more “generic building blocks of global rights constitutionalism,” including “women’s rights,” “the right to social security, the right to health care, and the right to food.”  The study suggests that the U.S., “rooted in a libertarian constitutional tradition that is inherently antithetical to the notion of positive rights,” is in danger of becoming a “legal backwater.”

Supreme Court Justice Ruth Bader Ginsburg seems to agree.  According to a recent interview, Justice Ginsburg said “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said.  She recommends the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights. (Via NY Times.)  Law and Versteeg similarly find that “the average constitution has increasingly grown to resemble the International Covenant on Civil and Political Rights and the European Convention on Human Rights, as well as the African Charter on Human and Peoples’ Rights and the Charter of Civil Society for the Caribbean Community.”

The other “generic building blocks” Law and Versteeg conclude are missing from the U.S. Constitution include “Right to work,” “Right to unionize and/or strike,” “Physical needs rights,” “Right to education,” and “Limits on property rights” (e.g., “property may be limited by its social function”).  Other popular “rights” include “Citizen duties,” “Right to a healthy environment,” “Other worker’s rights,” and “Artistic freedom.”

Two observations:

First, it is not clear that Americans ought to care whether other countries use the U.S. Constitution as a template.  I can think of just two possible arguments why they should:  (1) conformity is somehow good for its on sake; or (2) other countries’ constitutions are somehow substantively better than ours, and thus we should bring ours up to snuff.  The study does not raise either argument, but it is hard assume the authors have no opinion on the matter and yet proceeded to spill 80 pages of ink painstakingly studying the issue.  This is the way modern social science is done, I understand:  treat all facts as created equal and avoid offering any overt “value judgments.”  The authors’ silence on the values question is so deafening, though, that their refusal to simply lay them on the table is a perhaps unexpected distraction.

Second, neither the study nor Justice Ginsburg address the role the Court has played in modifying the constitution and preventing formal amendments.  The Constitution used to be formally amended more frequently than it is today.  It is counter-intuitive that it is now seldom amended even as people tend to understand less and less of its “original” meaning.  As I expressed in a recent discussion with James Hanley, by now, the meaning of the Constitution must seem very distant to most Americans.  Most discussions about the Constitution do not even quote its text.  Originalism makes the Constitution distant because it means people need a history degree before they can understand it.  Living constitutionalism makes it distant because it means people need a law degree to understand it.

If Americans are taught that they can’t understand what their Constitution says—or worse, that it has no fixed meaning at all—then they will never agitate for change.  Constitutional participation will never be more than fighting over who gets to nominate and approve Supreme Court justices—the delegates to what Woodrow Wilson called our “constitutional convention in continuous session.”  A recent poll (which I can’t seem to find now) reported the oft-repeated observation that of all American political institutions, the courts are by far the most trusted.  But the poll went on to observe that most Americans believe that, when courts find rights in the Constitution, the rights are really in there and not just spun out of judicial philosophy.  If Americans are astray in their constitutional understanding, they’ve been led there.

Despite this disconnect between modern Americans and their Constitution, we’ve little hope of amending it.  Even if the breathtaking amount of political will could be mustered, it can be bested or undone by a crack legal team and a carefully selected litigation strategy, or by a willful executive armed with a good crisis to forge a “constitutional moment” that changes our constitutional presumptions without any formal writing at all.

Americans thus have little reason to feel they can understand the constitution, and less reason to feel they can change it.

It seems unfair, then, for Justice Ginsburg to criticize the Constitution.  That document has proven fertile ground for her and her living constitutionalist colleagues.  And its ossification owes in no small part to legal and judicial philosophies to which she subscribes.

Not that this is all the Court’s fault.  The great sin of slavery brought us Civil War, and with it a remade Constitution.  This, even before the progressive and liberal legal revolutions of the 20th century, made it almost impossible to know exactly what would be required by that new constitution, rededicated to the proposition that all men are created equal.  But it is still overwhelmingly true that Americans swear fealty to the original principles of the Declaration and the Constitution—that the basic unit of our political system is the individual and not the state; that rights are something in us and not given to us; that government is best which governs least.  Those American principles seem conspicuously absent from the constitutions in Law and Versteeg’s study.  If that fact has any effect at all on Americans, it will likely only cause them to redouble their commitment.