America as a Legal Back Water

The United States of America pioneered the modern constitution, particularly that wondrous Bill of Rights – the First Ten Amendments. After the French Revolution in 1789, the U.S. effort formed the basis for the French constitution, and right up until the 1960s and 70s, as new countries were born, they inevitably looked to the structure provided in the U.S. Constitution for guidance. But the modern global civil rights movement, the movement of ethnic groups among and between different countries, new amalgamations, from the European Union to the reorganization of post-Soviet bloc nation, have created a demand for a more updated constitutional structure. When our constitution was first drafted, slavery was accepted, there were no modern forms of communications , and everything took days or weeks to transmit. The document that was drafted then still governs, albeit with a few – very few – post-Bill of Rights amendments.

And as much as our founding fathers believed that the Constitution would be a living and breathing document, one that could be amended as times changes or, as the 1803 case of Marbury vs. Madison gave the U.S. Supreme Court the power to interpret and enforce the constitution, could be applied to modern changes as technology and social structures evolved, the document was effectively drafted centuries ago and would be better if revised to reflect the modern digital era where people are just hours from any other country on earth.

Indeed, even one of the great contributors to our constitution, Thomas Jefferson, believed that the document should be revisited once in every generation, vetted and re-passed. The amendment process is cumbersome and in this day of super-polarization, it extremely unlikely that anything remotely controversial could ever be approved to alter that document. Hence, courts are forced to apply a horse and buggy constitution to a break-the-speed-of-sound jet/rocket enabled era. Strict constructionists – meaning people who don’t want the courts to interpret anything in the document which should forever be read exactly as written – might be stunned to learn that under their view, there is no basis for the United States Air Force, since the document only allowed us to raise a standing army and a navy.

The aging tenets of our constitution seldom form the basis for the anchor documents of nascent and rising new nations anymore, many born of the recent Arab Spring, who no longer choose to use the United States for a model of government workability. “In 1987, on the Constitution’s bicentennial, Time magazine calculated that ‘of the 170 countries that exist today, more than 160 have written charters modeled directly or indirectly on the U.S. version.’ … A quarter-century later, the picture looks very different. ‘The U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere,’ according to a new study by David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia. … The study, to be published in June in The New York University Law Review, bristles with data. Its authors coded and analyzed the provisions of 729 constitutions adopted by 188 countries from 1946 to 2006, and they considered 237 variables regarding various rights and ways to enforce them.

“‘Among the world’s democracies,’ Professors Law and Versteeg concluded, ‘constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. Constitution, only to reverse course in the 1980s and 1990s.’ … ‘There are lots of possible reasons. The United States Constitution is terse and old, and it guarantees relatively few rights. The commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century may send the signal that it is of little current use to, say, a new African nation. And the Constitution’s waning influence may be part of a general decline in American power and prestige. …

“The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in ‘Our Undemocratic Constitution,’ ‘the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today… These days, the overlap between the rights guaranteed by the Constitution and those most popular around the world is spotty. Americans recognize rights not widely protected, including ones to a speedy and public trial, and are an outlier in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care…. It has its idiosyncrasies. Only 2 percent of the world’s constitutions protect, as the Second Amendment does, a right to bear arms. (Its brothers in arms are Guatemala and Mexico.)…

“Many foreign judges say they have become less likely to cite decisions of the United States Supreme Court, in part because of what they consider its parochialism… ‘America is in danger, I think, of becoming something of a legal backwater,’ Justice Michael Kirby of the High Court of Australia said in a 2001 interview. He said that he looked instead to India, South Africa and New Zealand.” New York Times, February 6^th.

Perhaps the stalemate in our own two-party Congressional system – contrasted with the parliamentary system where the legislature effectively elects the head of state – or the unrepresentative Senate (where low population and high population states have the same two senators) are partially to blame, but mostly it’s because the more recent constitutional documents have incorporated changes in human rights that have become global standards and which are unrecognized in our rather ancient document. As the current imbalance and polarization in our current American society reflect, the older structures are badly in need of updating, but we are likely going to have to rely on that centuries-old bastion of democracy for a long time to come. Others are not saddled with that choice.

I’m Peter Dekom, and unless Americans are blessed with open minds and free thought, they will cling until the end of the United States that everything we have is better than anything else anyone could possibly create.