As he prepared for the Constitutional Convention in the spring of 1787, James Madison plunged into a thorough study of historical confederacies, from the ancient Greeks to the (then) modern Dutch and German federations.1 His inquiry, which he had been preparing for several years, was both schematic and thorough: he picked six case studies to focus on, and for each confederacy recorded the various rules of representation, the allocation of powers between center and subgovernment, and various facts about the performance of the system. He assessed costs and benefits—or as he put it in the language of the time, “virtues and vices”—and drew lessons for the project of reorganizing the United States into a viable federal government. Madison’s chief conclusion is that weakness of the federal center was highly risky, leading him to propose a congressional “negative” on the laws of the states, whereby the federal legislature would have “veto power” over state legislatures. While Madison’s negative was ultimately not included in the United States Constitution, the Supremacy Clause, whereby federal legislation preempts that from the states, is a fundamental component.
Modern constitution-makers may not always have the wisdom of James Madison, but they have one advantage that he did not: more than two hundred years of constitutional practice in many different countries. Including now-defunct countries such as the Central American Republic and the Ottoman Empire, there have been more than 220 different nation-states in existence since 1789. These countries have produced more than 900 constitutions in that time span. This collective experience provides a wealth of information for anyone who wants to undertake a Madisonian inquiry into constitutional practice. What factors lead countries to replace their constitutions? Why do some constitutions last and others not? What goes into these documents? And why do some “work” while others do not? My colleagues at the Comparative Constitutions Project and I have been trying to understand these questions, along with many others, using the techniques of social science.2
One of our discoveries is that written constitutions—of which the United States Constitution is one of the first for an independent nation state—have become a norm for new countries. The figure below shows the number of countries in the world (the solid line), which has roughly quadrupled since 1789, along with the number that have a document we can identify as a discrete constitution (the dashed line). The two lines converge around 1920, and remain closely linked today. For example, when South Sudan gained its independence in 2011, one of its first acts was to adopt a constitution.
The figure also shows, in the vertical bars, the number of constitutions adopted in each year. It shows that constitutions are adopted in what we might call global waves. The “springtime of nations” in 1848, World War I, World War II, and the Cold War were all followed by a wave of constitution-making. The timing of constitution-making, then, is to some extent dictated by global forces.
Similarly, the content of constitutional texts is determined in part by global and regional forces. We have the image of constitution-making as the work of a small group of authors sitting around a town hall and debating first principles. Yet for most countries, this image could not be farther from reality. Constitutions written today may include a set of human rights that are influenced by global norms, embodied in human rights treaties. They also look to international practice for matters large and small. Thus we see that standard forms of parliamentarism and presidential government are a starting point for thinking about how to organize government. And, perhaps somewhat surprisingly, minor details reflect a remarkable degree of similarity across constitutions. For example, many constitutions have a minimum age requirement to hold certain offices. The U.S. Constitution requires a person to be at least 35 years old to become president and 25 years old to be a member of the lower house of the legislature. These are still the most popular age requirements for constitutions, despite the significant increase in life expectancies since the 18th century.
The reason for these similarities across time and space is fairly straightforward. Most people writing constitutions have limited experience and knowledge about how to do so. Furthermore, many constitutions are written under great time pressure. And most constitution-makers are, at least implicitly, writing documents that are addressed not only to their own people but to international audiences. Under such circumstances, looking to how other countries have undertaken the task makes a lot of sense. There may be some effort to “fit” global norms to local conditions, but there is also a good deal of borrowing. Increasingly this borrowing is facilitated by international actors—other governments, the United Nations, international organizations, and nongovernmental organizations—that seek to inform and even influence national constitutional practices.
We can trace the rise and fall of different ideas in national constitutions. For example, some rights (such as a right to free speech or a right to privacy) become more popular over time, while others (the right to bear arms) decline in popularity.3 Constitutional preambles, which one might think are the parts of constitutions most likely to reflect local concerns, also reflect global trends. While many 19th century constitutions were adopted in the name of God, the 20th century witnessed a significant decline, as socialist language rose to the fore. But God has made a comeback since 1990 and has been invoked in almost 10 percent of constitutions adopted since then.4 Constitutions thus reflect the era in which they are written.
One of the reasons there are so many constitutions is that most of them do not last very long. In a book published a few years ago, my co-authors and I determined that the average predicted life expectancy of a national constitution is a mere 19 years.5 And in some countries, the situation is even worse. The Dominican Republic, for example, has had by our count 34 different constitutions since it was founded in 1821. At the other extreme, Australia has had only one constitution since 1901. The United States has, in fact, had two constitutions—our current document adopted in 1787 and the preceding Articles of Confederation of 1781. Understanding why some constitutions survive and others do not is an important question, particularly because in any given year, several countries will need to write new ones.
Sometimes constitutions fail because the political regime has collapsed or is in danger of it. When a country is taken over or faces a severe institutional crisis (as did the framers under the Articles of Confederation), it is likely that it will replace its constitution. Sometimes constitutions are replaced by power-hungry leaders, who wish to dismantle democratic constraints, or extend their terms in office. And sometimes constitutions simply fall out of date. Such constitutions ought to be replaced. As Thomas Jefferson once wrote:
I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them and find practical means of correcting their ill effects. But I know also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change with the change of circumstances, institutions must advance also and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain under the regimen of their barbarous ancestors.
One way to think about this is that constitutions face external pressures. Societies change, political bargains erode, and the international environment may shift. Rules adopted for one generation might not make sense for later generations. These pressures might lead people to think about their constitutions as being akin to Jefferson’s boyhood coat. But some constitutions, like some human beings, have the ability to withstand external pressures for change. For example, if the constitution is old and venerated, as is our own here in the United States, people might resist any effort to replace it. Constitutional systems that are more flexible, for example by allowing easy amendment, can get rid of outmoded institutions and adopt new ones. Besides flexibility, we argue that constitutions that are adopted through more inclusive processes are more likely to endure. When more segments of the population have a stake in the political bargain, they may resist efforts to overturn or replace it. We also find, interestingly, that longer, more detailed constitutions tend to last longer. This is because such documents are likely to include a number of provisions that matter to powerful groups, giving them a stake in the survival of the constitution.
Of course, the features that predict constitutional endurance are ones that are not particularly associated with the United States Constitution. Madison and his colleagues at Philadelphia may have represented various conflicting interests, and the ratification process may have facilitated a degree of popular participation, but there were very large segments of society excluded from the discussion. Furthermore, the United States Constitution is notable for its brevity, particularly in comparison with modern constitutions. The average constitution in force in 2013 was over 21,000 words long, while the United States document was just over 4,500 words when adopted and only a bit over 7,500 today. And the United States Constitution is notoriously difficult to amend, requiring the cooperation of Congress and three-fourths of the state legislatures to pass an amendment, or else two-thirds of the state legislatures to call a constitutional convention.
We analogize the United States Constitution to a woman named Jeanne Calment, the oldest human being ever, who died in 1997 at the age of 122. Calment was a lifelong smoker, who did not quit until age 117; her diet consisted largely of port wine and chocolate. While that lifestyle happened to work for her, it would hardly be advisable for most of us! Similarly, the United States Constitution might have endured in our particular soil but would not necessarily be a good model for other countries. And there is increasing debate, at least among scholars, about whether it is outmoded even for ourselves. Whatever ones views on that controversial question, there is no question that there is much to learn from the constitutions of other countries.
1. Notes on Ancient and Modern Confederacies, in 9 THE PAPERS OF JAMES MADISON 3, 3-24 (Robert A. Rutland et al., eds., 1975).
2. See www.comparativeconstitutionsproject.org
3. “U.S. Gun Rights truly are American Exceptionalism,” Bloomberg News, March 7, 2013, http://www.bloomberg.com/news/ articles/2013-03-07/u-s-gun-rights-truly-are-american-exceptionalism
4. “We the Peoples”: The Global Origins of Constitutional Preambles, George Washington University LawReview, available at http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2360725.
5. The Endurance of National Constitutions (Cambridge, 2009).