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A rather old constitution

Friday, April 6th, 2012

As we noted in February, according to a study by David S. Law and Mila Versteeg, the “U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere.” Indeed, when Supreme Court Justice Ruth Bader Ginsburg visited Egypt earlier this year, she remarked that we in America have “a rather old constitution” and that, instead of looking to it for guidance in constitution writing, one might instead look at the constitutions of South Africa or the European Convention on Human Rights.

Writing in the Hoover Institution’s Defining Ideas, Diana Schaub explains the reason for Ginsburg’s suggestion:

[T]he reason the Constitution of South Africa has become the darling of advanced jurisprudential opinion is that it begins with a lengthy enumeration of rights, comprising thirty-two of the document’s 243 sections. By contrast, the U.S. Constitution has a mere seven sections, plus a scanty twenty-seven amendments ratified over the course of 200-plus years (the voluminous South African Constitution has already been amended on average of once a year since its adoption).

Of course, as Ronald Reagan was fond of pointing out, just because rights are written down doesn’t actually mean that they are secured for the people. Speaking about the Soviet Constitution, he remarked: “I saw all kinds of terms in there that sound just exactly like our own: ‘Freedom of assembly’ and ‘freedom of speech’ and so forth. Of course, they don’t allow them to have those things, but they’re in there in the constitution.”

It turns out that many of the Founding Fathers were equally unimpressed with, in Schaub’s words, “such flowery sermonizing”:

South Africans don’t actually secure these rights; they proclaim them. How far the proclamation falls short of the practice can be seen in South Africa’s extremely high murder rate (seven times the U.S. rate) and its designation as “the rape capital of the world.” Girls in South Africa are more likely to be assaulted by one or more members of the male population who admit to being rapists–25 percent of men–than they are to learn to read; the majority of rapes are committed against children and even infants.

I mention these horrors not to impugn South Africa in particular, but rather to make a point about all such declarations of rights. They are what James Madison dismissively called “parchment barriers”–nice sounding, but ineffective. Madison knew what he was talking about, since many of the U.S. state constitutions during the founding period were similar to the South African Constitution in that they began with high-flown and lengthy declarations of rights (witness the first thirty articles of the Massachusetts Constitution of 1780).

[…] The Federalists held that bills of rights were, in effect, relics of monarchy. They emerged from, and were appropriate to, political orders in which the people had to wrest concessions from kings and nobles. Although they had once served to advance liberty, bills of rights were at odds with the fully realized spirit of self-government. The Constitution itself–an effective government of limited powers instituted by the people–was the surest guarantee of civil liberty. […] Perhaps today’s judges, addicted as they are to rights and hankering as they do for fresh infusions of rights, are not properly impartial consultants for the task of constitution-writing. The obsession with rights obscures the Lawgiver’s true aim, which is not to satisfy judicial cravings but to give effect to the people’s need for good government.