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Is the Constitution losing appeal?

Monday, February 13th, 2012

Last week, Adam Liptak, writing in the New York Times, reported on a study that found that “the U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere.” The study looked at 729 constitutions adopted by 188 countries between 1946 and 2006 and concluded that “among the world’s democracies, constitutional similarity to the United States has clearly gone into free fall.”

Why? Liptak hypothesizes that “the United States Constitution is terse and old, and it guarantees relatively few rights. […] 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.”

Over at the National Constitution Center’s Constitution Daily, Yale law professor Akhil Reed Amar responds: “the key point–the real headline utterly missed by Liptak and the sources he cites–is that thanks to the U.S. Constitution, there are a lot more democracies.”

In my view, the U.S. Constitution is nothing less than the hinge of world history, the most profound political event in the last millennium. Before 1787, democracy existed almost nowhere on the planet, and had rarely existed anywhere in the previous millennia of recorded history. In the few places where democracy had existed before 1787, it had reigned over small city-states governing people who spoke the same language, had the same climate, and worshiped the same gods. Then the U.S. Constitution came along and offered a continental and pluralist vision of democracy, the likes of which had never before been seen or even dreamed imaginable. Today, thanks to the success of this American project of democracy, half the world is democratic—and democracy continues to spread.

[…] Much of the American project of democracy depends on implicit provisions and state bills of rights, which are not featured in the [study Liptak citse]. In addition, there are some rights,  such as the right to travel and the presumption of innocence, that are core features of the national constitution, whether or not they appear “in so many words.”

[…] Liptak’s catchy headline references “We the People,” likely because they are the most well-known words of the U.S. Constitution. Liptak and others seem to believe that what matters is the words themselves. We should consider instead what matters most, which is what those words, “We the People,” stand for: a government of the people, by the people, for the people; a democracy. That is why the U.S. Constitution was revolutionary at its inception, and that is why is continues to inspire people throughout the world today.

As Walter Berns has noted, after a lifetime of studying our system of government, what he came away with “was a deep appreciation for the American Constitution […] and a sense of the extraordinary achievement of Washington, Jefferson, Madison, Hamilton, Gouverneur Morris, and James Wilson as founders. We are an extraordinary nation because no other country has had men or women like our Founders; and we should appreciate them, respect them, and study them and in the process acquire and ever-stronger attachment to this country of ours.”