Tom Ginsburg: Are Constitutions Hot Commodities?
Articles Blog

Tom Ginsburg: Are Constitutions Hot Commodities?

September 22, 2019

(soft melodic music) (audience clapping) – So from the body to the body politic. The great political theorist,
Frank Zappa, once said that in order to be a real
country, you needed two things. You needed a national airline and you had to have a national beer.
(audience laughs) You might be able to get
away without the airline, but you definitely needed the beer. These days, to the list, one would have to add a national constitution. For countries, as they
emerge on the world stage, will typically as one of
their very first acts, adopt a new constitution. South Sudan, the world’s
youngest country, did this on the very first day of
their independence in 2011. A constitution is a kind
of a product, a product that embodies the fundamental
values of the people. It provides a blueprint for governance, and announces on the
world stage that we are indeed here, that we are indeed a country. One way to examine the emergence of this norm is to look at data, such as that gathered by my colleagues and I at the Comparative
Constitutions Project over the last few years. The top line in this
figure shows the number of independent countries
in the world since 1789. And you could see that
that number has increased, it’s about four or five
times what it was in 1789. The dashed line indicates the number of countries that have what we could call a discreet national
constitution, a single document. And the interesting
thing is that over time those two lines converge,
so that by about 1950 there’s certainly a norm that to be a country, you need a constitution. The other thing the figure shows us is the number of constitutions adopted in any given year given by the bars. That ranges from zero in some years to more than 20 in others. The interesting thing
here is that you can see that constitutions, the
quintessential embodiments of national sovereignty,
actually come in waves. And these waves tend to follow great international conflict, so
the end of the Cold War, the end of World War II, decolonization. These major transnational
events shape the production of national constitutions
and trigger their rewriting. One reason there are so
many national constitutions is that they tend not to last very long. This would’ve pleased, actually, our founding father, Thomas Jefferson, who thought in some sense
that constitutions ought to be rebooted every generation or so. For Jefferson, the dead should
never govern the living. And he thought, as a radical Democrat, that each generation had to
choose their own institutions. “Some men,” he said,
“look at constitutions “with sanctimonious
reverence and deemed them “like the Arc of Covenant,
too sacred to be touched. “They ascribed to men of the preceding age “a wisdom more than human.” This is what he wrote in 1816. He was the man of the previous
age, and so he, himself, had enough awareness to
question his own handiwork. On the basis of this
theory, he argued that all laws and all
constitutions should expire automatically after a period of 19 years, He calculated this based on European life expectancies of the time, and it was the period by his calculations in which a new generation
would replace the prior one. Through this mechanism, he thought that each generation would choose
their own institutions, and that this would somehow
lead them to adopt them on the basis of his democratic principle, but also critically, allow them
to update the institutions. As society changes, as
technology changes, he thought institutions and laws
had to change as well. Now, most countries seem to have followed Jefferson’s advice, the United States has not. But this allows us,
actually, to look at trends in constitutional content over time. What are the trends? Just as we have trends in
fashion, we have trends in hairstyle, so there are trends in constitution making and
constitutional content. What this figure shows us is for each constitution
represented by a dot, the trend in the number of rights that are included in the constitution. And clearly, one can see that
we’re indeed in some sense in an age of rights, of
ever-expanding claims of rights. A constitution adopted
today would include rights that Thomas Jefferson and his
colleagues never thought of. Rights to healthcare, rights to a clean environment,
even a right to leisure. In this way, ideas about what rights we have are reflected in fundamental law. But only if there’s updating and changing. Constitutional texts are also
embodiments of economic ideas. So in this figure you
can see in the blue line the percentage of constitutions,
national constitutions that make reference to
the free market, a number that’s been steadily
increasing since 1940. In the red line you can see the rise and then the fall of
socialist constitutions. And so constitutions also
embody ideas about the economy. Another thing we can look at is God’s position in the constitution. In the 19th, many constitutions would have been promulgated
in the name of God. But as you can see in the
long secular 20th century God suffered a serious
decline in popularity. She seems to be making something
of a comeback right now, but the point is that we
can look in these documents for shared ideas across countries about what they tell us about
the nature of government, and the basis of our
fundamental institutions. In this sense, we have to reimagine our image of constitution making. Most of us think of
constitutions as made by a bunch of men in a New England
town hall, reasoning from first principles
to optimal institutions. This is not really how constitution
making gets done today. Indeed, one would have to describe it as much more of a transnational process. So if one was to go to let’s say Nepal, which adopted a constitution last year. One would find all kinds of organizations, the logos of which are on this figure, which would show up to work
with the national government in terms of what was going
to be in the constitution in terms of designing its process. Sometimes these organizations have sort of positioned themselves
as general advisors, in other cases they come to
lobby for very specific things. The point is that constitution making now is very much a transnational process, and you might think that
this is a kind of a bad idea, that it’s an interference
with the fundamental right of a sovereign people to
choose their own institutions. Realistically, though, the people who are actually drafting constitutions in most cases have never done it before, will never do it again, are
often not paying much attention. (audience laughing) And occasionally you’re so embroiled in their own partisan
politics and partisan passions that they can’t ever come to agreement. In such circumstances it might make sense for the international
community, broadly defined, to subsidize these processes in terms of helping to structure them. In terms of providing ideas so that that Jeffersonian updating
can be better achieved for the benefit of the
population that is going to have to live under these institutions. Now this image here of Nepal might seem to some of you this week as
a kind of warning, right? In some sense it seems to embody the current state of American politics. And for that reason I want
to spend a minute talking about the United states
and the implications of the analysis for the United States. In this image we have
two ancient artifacts. On the right, the 229-year-old Constitution of the United States. On the left, the oldest
woman ever to live. A woman named Jeanne
Calment who died in France in 1997 at the age of 122 years old. Now, they went to her and they asked, “You know, what’s your secret?
How did you live so long?” And she said, “You know,
I smoked till I was 117. “I quit, didn’t make me feel
any better, I went back to it.” (audience laughing) Her diet seemed to consist
of chocolate by the pound, along with some copious
amounts of Port wine. I guess the point of the story is that very much like the
United States Constitution, this might work for her
it’s not necessarily a model for the rest of us.
(audience laughing) If you are a country that is
writing a new constitution you’re unlikely to use
that of the United States. But I also think it
tells us something about what we would do if as humans
beings must all expire, if our constitution was
ever to be replaced. Now, scholars have been talking
about this for some time. So many of our institutions seem so poorly fitted for a modern society. The Electoral College will for many of you be on your mind this week. The senate, which seems so
undemocratic in so many ways. There’s lots of institutions
that are problematic from a modern democratic point of view, and that would never be adopted
today were we to start over. One thing I’m sure of is that if we were to write a new constitution we
would be reflecting the ideas of the accumulated experience of this now 230-year-old era
of constitution making. We would look at the experience
and the ideas that flow from other countries in
order to do a better job of reflecting our current moment. Now, if you’re interested in learning more about constitutions I have this website, You can explore the ideas
that are instantiated in national constitutions
at your own leisure. And I thank you very
much for your attention. (audience clapping) (soft melodic music)

Leave a Reply

Your email address will not be published. Required fields are marked *