The Declining Influence Of The United States Constitution.
Páginas: 175 (43503 palabras)
Publicado: 9 de octubre de 2012
31944-nyu_87-3 Sheet No. 66 Side B
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THE DECLINING INFLUENCE OF THE UNITED STATES CONSTITUTION
DAVID S. LAW† & MILA VERSTEEG‡
It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it isincreasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries. In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to modeleither the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formalconstitutions. On the basis of this data, we are able to identify the world’s most and least generic constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream. The fact that the U.S. Constitution is not widely emulated raises the question of whether there is an alternative paradigm that constitutional drafters in othercountries now employ as a model instead. One possibility is that their attention has shifted to some other prominent national constitution. To evaluate this possibility, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some supportin the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution making in other countries. This influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, SouthAfrica, or India.
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† Professor of Law and Professor of Political Science, Washington University in St. Louis. B.A., M.A., Ph.D., Stanford University; J.D., Harvard Law School; B.C.L. in European and Comparative Law, University of Oxford. ‡ Associate Professor, University of Virginia School of Law. B.A., LL.M., Tilburg University; LL.M., Harvard Law School;D.Phil., University of Oxford. Portions of this Article were presented at Seoul National University School of Law’s Foreign Authority Forum; the International Symposium on Legal Protection of Human Rights held at the Yeungnam University Institute of Legal Studies in Daegu, Korea; and the 2010 annual meetings of the Law and Society Association and the Southeastern Association of Law Schools. Fortheir extremely helpful and insightful comments and suggestions, we thank Kevin Cope, David Erdos, Josh Fischman, Denis Galligan, Tom Ginsburg, Benedikt Goderis, Dan Ho, Andrew Martin, Keith Poole, Eric Posner, Miguel Schor, and Robert Walker. We are also grateful to Elizabeth Drake, Raquel Frisardi, Alec Knight, and Casey White for excellent research assistance. The New York University School ofLaw provided Professor Law with invaluable support and hospitality during the authorship of this Article. The ongoing research collaboration between the authors is made possible by a grant from the Center for Empirical Research in the Law at Washington University in St. Louis. Copyright © 2012 by David S. Law and Mila Versteeg. 762
05/25/2012 09:12:06
Electronic copy available at:...
05/25/2012 09:12:06
\\jciprod01\productn\N\NYU\87-3\NYU303.txt
unknown
Seq: 1
24-MAY-12
17:22
THE DECLINING INFLUENCE OF THE UNITED STATES CONSTITUTION
DAVID S. LAW† & MILA VERSTEEG‡
It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it isincreasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries. In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to modeleither the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formalconstitutions. On the basis of this data, we are able to identify the world’s most and least generic constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream. The fact that the U.S. Constitution is not widely emulated raises the question of whether there is an alternative paradigm that constitutional drafters in othercountries now employ as a model instead. One possibility is that their attention has shifted to some other prominent national constitution. To evaluate this possibility, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some supportin the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution making in other countries. This influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, SouthAfrica, or India.
31944-nyu_87-3 Sheet No. 66 Side B
† Professor of Law and Professor of Political Science, Washington University in St. Louis. B.A., M.A., Ph.D., Stanford University; J.D., Harvard Law School; B.C.L. in European and Comparative Law, University of Oxford. ‡ Associate Professor, University of Virginia School of Law. B.A., LL.M., Tilburg University; LL.M., Harvard Law School;D.Phil., University of Oxford. Portions of this Article were presented at Seoul National University School of Law’s Foreign Authority Forum; the International Symposium on Legal Protection of Human Rights held at the Yeungnam University Institute of Legal Studies in Daegu, Korea; and the 2010 annual meetings of the Law and Society Association and the Southeastern Association of Law Schools. Fortheir extremely helpful and insightful comments and suggestions, we thank Kevin Cope, David Erdos, Josh Fischman, Denis Galligan, Tom Ginsburg, Benedikt Goderis, Dan Ho, Andrew Martin, Keith Poole, Eric Posner, Miguel Schor, and Robert Walker. We are also grateful to Elizabeth Drake, Raquel Frisardi, Alec Knight, and Casey White for excellent research assistance. The New York University School ofLaw provided Professor Law with invaluable support and hospitality during the authorship of this Article. The ongoing research collaboration between the authors is made possible by a grant from the Center for Empirical Research in the Law at Washington University in St. Louis. Copyright © 2012 by David S. Law and Mila Versteeg. 762
05/25/2012 09:12:06
Electronic copy available at:...
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