[StBernard] 'We the People' Loses Appeal With People Around the World

[Westley Annis]

'We the People' Loses Appeal With People Around the World
By ADAM LIPTAK
WASHINGTON - The Constitution has seen better days.

Sure, it is the nation's founding document and sacred text. And it is the
oldest written national constitution still in force anywhere in the world.
But its influence is waning.

In 1987, on the Constitution's bicentennial, Time magazine calculated that
"of the 170 countries that exist today, more than 160 have written charters
modeled directly or indirectly on the U.S. version."

A quarter-century later, the picture looks very different. "The U.S.
Constitution appears to be losing its appeal as a model for constitutional
drafters elsewhere," according to a new study by David S. Law of Washington
University in St. Louis and Mila Versteeg of the University of Virginia.

The study, to be published in June in The New York University Law Review,
bristles with data. Its authors coded and analyzed the provisions of 729
constitutions adopted by 188 countries from 1946 to 2006, and they
considered 237 variables regarding various rights and ways to enforce them.

"Among the world's democracies," Professors Law and Versteeg concluded,
"constitutional similarity to the United States has clearly gone into free
fall. Over the 1960s and 1970s, democratic constitutions as a whole became
more similar to the U.S. Constitution, only to reverse course in the 1980s
and 1990s."

"The turn of the twenty-first century, however, saw the beginning of a steep
plunge that continues through the most recent years for which we have data,
to the point that the constitutions of the world's democracies are, on
average, less similar to the U.S. Constitution now than they were at the end
of World War II."

There are lots of possible reasons. The United States Constitution is terse
and old, and it guarantees relatively few rights. The commitment of some
members of the Supreme Court to interpreting the Constitution according to
its original meaning in the 18th century may send the signal that it is of
little current use to, say, a new African nation. And the Constitution's
waning influence may be part of a general decline in American power and
prestige.

In an interview, Professor Law identified a central reason for the trend:
the availability of newer, sexier and more powerful operating systems in the
constitutional marketplace. "Nobody wants to copy Windows 3.1," he said.

In a television interview during a visit to Egypt last week, Justice Ruth
Bader Ginsburg of the Supreme Court seemed to agree. "I would not look to
the United States Constitution if I were drafting a constitution in the year
2012," she said. She recommended, instead, the South African Constitution,
the Canadian Charter of Rights and Freedoms or the European Convention on
Human Rights.

The rights guaranteed by the American Constitution are parsimonious by
international standards, and they are frozen in amber. As Sanford Levinson
wrote in 2006 in "Our Undemocratic Constitution," "the U.S. Constitution is
the most difficult to amend of any constitution currently existing in the
world today." (Yugoslavia used to hold that title, but Yugoslavia did not
work out.)

Other nations routinely trade in their constitutions wholesale, replacing
them on average every 19 years. By odd coincidence, Thomas Jefferson, in a
1789 letter to James Madison, once said that every constitution "naturally
expires at the end of 19 years" because "the earth belongs always to the
living generation." These days, the overlap between the rights guaranteed by
the Constitution and those most popular around the world is spotty.

Americans recognize rights not widely protected, including ones to a speedy
and public trial, and are outliers in prohibiting government establishment
of religion. But 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.

It has its idiosyncrasies. Only 2 percent of the world's constitutions
protect, as the Second Amendment does, a right to bear arms. (Its brothers
in arms are Guatemala and Mexico.)

The Constitution's waning global stature is consistent with the diminished
influence of the Supreme Court, which "is losing the central role it once
had among courts in modern democracies," Aharon Barak, then the president of
the Supreme Court of Israel, wrote in The Harvard Law Review in 2002.

Many foreign judges say they have become less likely to cite decisions of
the United States Supreme Court, in part because of what they consider its
parochialism.

"America is in danger, I think, of becoming something of a legal backwater,"
Justice Michael Kirby of the High Court of Australia said in a 2001
interview. He said that he looked instead to India, South Africa and New
Zealand.

Mr. Barak, for his part, identified a new constitutional superpower:
"Canadian law," he wrote, "serves as a source of inspiration for many
countries around the world." The new study also suggests that the Canadian
Charter of Rights and Freedoms, adopted in 1982, may now be more influential
than its American counterpart.

The Canadian Charter is both more expansive and less absolute. It guarantees
equal rights for women and disabled people, allows affirmative action and
requires that those arrested be informed of their rights. On the other hand,
it balances those rights against "such reasonable limits" as "can be
demonstrably justified in a free and democratic society."

There are, of course, limits to empirical research based on coding and
counting, and there is more to a constitution than its words, as Justice
Antonin Scalia told the Senate Judiciary Committee in October. "Every banana
republic in the world has a bill of rights," he said.

"The bill of rights of the former evil empire, the Union of Soviet Socialist
Republics, was much better than ours," he said, adding: "We guarantee
freedom of speech and of the press. Big deal. They guaranteed freedom of
speech, of the press, of street demonstrations and protests, and anyone who
is caught trying to suppress criticism of the government will be called to
account. Whoa, that is wonderful stuff!"

"Of course," Justice Scalia continued, "it's just words on paper, what our
framers would have called a 'parchment guarantee.' "

-------------------------------
John Adams was so right, "Our Constitution was made for a moral and
religious people and is wholly inadequate for any other!", 1798. Ammoral
atheists are governed by the passing fad. They are incapable of following a
consistant ethic for very long. Theirs is a moral relativism subject to each
person's favorite sin. Adams' statement is as much true as it is an insult
to unregenerate humanity that now apparently rules the day in America.