Feb. 21 (Bloomberg) -- Supreme Court Justice Ruth Bader Ginsburg has drawn criticism for saying that she would not counsel constitution writers abroad to look to our Constitution as a model, and for recommending instead the basic laws of South Africa and Canada.
Some of that criticism, as even conservative columnist Jeff Jacoby has noted, has been unfair, failing to note that Ginsburg also praised aspects of our constitutional order.
Many of Ginsburg’s critics were also dismayed by a New York Times article reporting, on the basis of a recent study, that constitution makers around the world are indeed looking at models besides our own. “The Constitution has seen better days,” it began.
The premise seems to be that the better our constitutional design, the more we should expect other countries to seek to emulate it. But this premise is clearly mistaken. Other countries may have rational reasons not to adopt our Constitution that do not reflect badly on its design. Political elites in other countries may not want to live within the limits that the U.S. model imposes. Other countries may also lack the conditions that allow our Constitution to work.
Limiting Federal Power
Although the drafters and ratifiers of the U.S. Constitution sought a stronger central government than the Articles of Confederation had allowed, they also viewed government power with much more skepticism than most constitution makers in other societies have done. The Constitution they adopted constrains the federal government by granting it limited powers and subjecting proposals for its expansion to multiple vetoes. It also, as Michael Greve points out in his important new book “The Upside-Down Constitution,” places state governments in competition with one another, limiting their power. Not all peoples will favor such tight constraints, still less their political elites.
Even friends of the Constitution can acknowledge that it will not work in all societies in all times. In the same passage in which he described it as “the most perfect constitution that ever existed,” Alexis de Tocqueville said of the “federal system” it created that “its benefits cannot be enjoyed by all nations.” Smaller nations, for example, may not have need of a federal structure. In an essay on the international influence of the Constitution and the Federalist Papers, Duke University law professor Donald Horowitz notes that many ethnically divided countries have avoided federalism for fear it would promote separatism.
The U.S. Constitution also presupposes cultural traits that are not found everywhere. The more a constitution limits a government, the more a society needs to rely on voluntary associations to solve or manage problems. Those associations are easier to form in high-trust societies than in places where nobody trusts anyone outside the extended family.
Social trust also enables constitutional brevity. Our Constitution leaves most policy outcomes to the political processes it creates. A society where sizable groups fear they could lose big in these processes might want a constitution that reduces their risks by including specific policy commitments.
Perhaps the most important precondition is a culture committed to the ideals the Constitution embodies. Our Constitution would not work in a society that values security and equality more, and freedom less, than we have historically done. Ginsburg herself raised this point in her controversial interview: “A constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom. If the people don’t care, then the best constitution won’t make any difference.”
In his essay, Horowitz illustrates the point when he discusses countries that copied our constitutional arrangements in the 19th century: “The Electoral College even survived long periods of dictatorship, in Brazil, for instance.”
Smaller Government Preferred
According to the New York Times story, one way many contemporary constitution writers are departing from our tradition is by providing explicit protection for many more judicially enforceable rights than we do, including the “entitlement to food, education and health care.” That our Constitution is “parsimonious” with such rights, as the Times puts it, is not necessarily a defect: It reflects our preference for smaller government and for legislative rather than judicial policy making. The more political decisions a constitution gives over to the judiciary, the more those decisions are likely to reflect the preferences of a political and legal elite rather than those of the populace.
The vogue for judicially enforceable rights is a phenomenon of recent decades. The Times notes that the average constitution lasts 19 years. Ours has, of course, lasted much longer. Before we conclude that it is hopelessly outmoded, let’s wait to see how well other countries’ entitlement-heavy constitutions do at providing political stability.
(Ramesh Ponnuru is a Bloomberg View columnist and a senior editor at National Review. The opinions expressed are his own.)
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