It may be the oldest written national constitution in force anywhere in the world, but the U.S. Constitution is losing its influence across the globe.
That's according to a new study to be published in June in the New York University Law Review. The study by David S. Law of Wash U. in St. Louis and Mila Versteeg of the University of Virginia analyzed the provisions of 729 constitutions adopted by 188 countries from 1946 to 2006.
In 1987, the New York Times reports that 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." Today, Law and Versteeg conclude that "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] 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,” they conclude.
This trend mirrors the diminished influence of the Supreme Court, which has lost "the role it once had among courts in modern democracies," said then president of the Supreme Court of Israel Aharon Barak in the Harvard Law Review in 2002.
Why are the Constitution and the Supreme Court waning in influence? The New York Times suggests that this trend may be simply a product of the fact that the document is terse and old. Law noted the availability of newer, more modern constitutional models renders the U.S. Constitution obsolete. "Nobody wants to copy Windows 3.1," he said. Similarly, in a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg apparently said, "I would not look to the United States Constitution if I were drafting a constitution in the year 2012."
But, my sense is that the Constitution is slipping because America has lost its power and prestige as a shining democracy due to over a decade of constitutional excess. In particular, the Bush administration's War on Terror policies which interpreted the Constitution to permit torture, deprive suspected terrorists of due process, sanction wire-tapping and domestic spying, and amass unprecedented power in the hands of the executive eroded the credibility of the document and undermined our democracy. After a decade of America's imprisoning and torturing Arab citizens under the guise of the Constitution, it is no wonder that it no longer holds any weight in newly emerging democracies like Egypt and Tunisia.
Moreover, the decline in influence is also a reflection of the all-too-often forgotten fact that American liberal democracy is not for every country. The U.S. Constitution guarantees certain rights, like the separation of religion and state, which may not neatly fit into other countries' models of democracy. Stanford democracy expert Larry Diamond has written often about public opinion polling of the Arab world, which indicates that although the majority of Arabs want democracy, they also believe Islam should play a strong role in governing their society. The U.S. Constitution, then, provides little guidance for structuring newly emerging democracies with more devout populations.
Although the decline of the Constitution is likely to unnerve the bevy of IR theorists and pundits who routinely lament America's decline, this study is not necessarily cause for concern. Rather, that emerging democracies are adapting democracy to fit their context serves as a powerful reminder that liberal democracy cannot be imposed from the outside, something the U.S. learned well this past decade in Iraq.
It should also serve as a stark warning to President Barack Obama, however, that the longer Guantanamo remains open, and the more the administration chips away at our civil liberties by signing bills like the NDAA, the more U.S. influence, leadership, and credibility will wane across the globe.
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