The Endurance of National Constitutions

11 Pages Posted: 17 Dec 2012

See all articles by Tom Ginsburg

Tom Ginsburg

University of Chicago Law School

Zachary Elkins

University of Texas, Austin

James Melton

Central Michigan University - College of Business Administration

Multiple version iconThere are 2 versions of this paper

Date Written: 2009

Abstract

In a series of exchanges with James Madison, Thomas Jefferson argued that constitutions should be rewritten every generation, declaring famously that the “dead should not govern the living.” Jefferson derided those who “look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched.” He even proposed an expiration date – one of nineteen years, a figure he came to from studying a set of actuarial tables. Madison, having only recently shepherded the U.S. document through a sometimes contentious deliberation and ratification process, saw more merit in constitutional longevity. The two carried out their lively debate by mail in two very different contexts: revolutionary France, where Jefferson served as the inaugural U.S. ambassador, and the United States, where Madison was busy putting the new American charter into effect. Although those two countries seemed to be headed in a similar institutional direction as beacons of democracy in the late eighteenth century, their constitutional trajectory would be markedly different. Why is it that the inaugural constitution drafted in Philadelphia in 1789 has survived for 220 years and counting, whereas the French Constitution of 1791 lasted a little more than a year, to be followed in French history by fourteen more constitutions? Indeed, an old joke has it that a man goes into a library and asks for a copy of the French constitution, only to be turned away with the explanation that the library does not stock periodicals.

Suggested Citation

Ginsburg, Tom and Elkins, Zachary and Melton, James, The Endurance of National Constitutions (2009). Available at SSRN: https://ssrn.com/abstract=2190476 or http://dx.doi.org/10.2139/ssrn.2190476

Tom Ginsburg (Contact Author)

University of Chicago Law School ( email )

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Zachary Elkins

University of Texas, Austin ( email )

2317 Speedway
Austin, TX 78712
United States

James Melton

Central Michigan University - College of Business Administration ( email )

Mt. Pleasant, MI 48858
United States

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