The Declining Influence of the United States Constitution
David S. Law
Washington University in Saint Louis - School of Law; Washington University in Saint Louis - Department of Political Science
University of Virginia School of Law
May 26, 2012
New York University Law Review, Vol. 87, No. 3, pp. 762-858, June 2012
Washington University in St. Louis Legal Studies Research Paper No. 11-09-01
Virginia Public Law and Legal Theory Research Paper No. 2011-39
It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries.
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. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. On the basis of this data, we are able to identify the world’s most and least generic constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream.
The fact that the U.S. Constitution is not widely emulated raises the question of whether there is an alternative paradigm that constitutional drafters in other countries now employ as a model instead. One possibility is that their attention has shifted to some other prominent national constitution. To evaluate this possibility, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. 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. This influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, South Africa, or India.
Another possibility is that international and regional human rights instruments have become especially influential upon the manner in which national constitutions are written. We find little evidence to indicate that any of the leading human rights treaties now serves as a dominant model for constitutional drafters. Some noteworthy patterns of similarity between national constitutions and international legal instruments do exist: For example, the constitutions of undemocratic countries tend to exhibit greater similarity to the Universal Declaration of Human Rights, while those of common law countries manifest the opposite tendency. It is difficult to infer from these patterns, however, that countries have actually emulated international or regional human rights instruments when writing their constitutions.
Number of Pages in PDF File: 97
Keywords: constitutionalism, Constitution, global constitutionalism, international law, human rights, ECHR, UDHR, ICCPR, ICESCR, Canada, Germany, South Africa, India, empirical
JEL Classification: K00, K33Accepted Paper Series
Date posted: September 7, 2011 ; Last revised: May 26, 2012
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