This article first appeared in the St. Louis Beacon, Feb. 13, 2012 - What's the difference between the U.S. Constitution and Windows 3.1?
That's a key comparison that Washington University professor David Law makes in his research on why few countries around the world have been using the constitution drawn up by the Founding Fathers in 1787 as a model for how they want their countries to be governed in the 21st century.
Law, who wrote his study with Mila Versteeg of the University of Virginia, has been a popular interview subject recently since their research was the topic of a story in the New York Times.
Their basic conclusion: After being seen as a model for fledgling democracies around the world for centuries, the U.S. Constitution has over the past 60 years increasingly been seen in many ways as "dysfunctional, antiquated and sorely in need of repair."
To use the computer analogy, they compare the constitution to an "operating system built around an obsolete core that remains functional thanks only to the long accretion of awkward and inefficient add-ons and workarounds. In an ideal world, one would employ the latest technology, but in practice, it may not be sensible to abandon the existing system and start afresh."
Nations looking to write a new constitution aren't hampered by such technological constraints, Law and Versteeg write. Instead, they note that constitutions around the world have a much shorter shelf life and that "to the extent that other countries still look to the United States as an example, their goal may be less to imitate American constitutionalism than to avoid its perceived flaws and mistakes."
They reached their conclusions, in part, by devising a "rights index" that showed that on average, constitutions around the world have become less similar to the U.S. Constitution over the past 60 years. They say no one model has taken its place, but there has been "an increasingly clear and broad consensus on the types of rights that a constitution should include."
Those generic rights include features of the U.S. Constitution, such as freedoms of religion and expression, but they also include rights not enumerated by the American founders, such as equality, a right to privacy, a right to private property, rights for women, rights to vote and work, freedom of movement, prohibition of torture and others.
In all, they studied 729 constitutions adopted by 188 nations from 1946 to 2006, leading them to this conclusion:
"As the oldest formal constitution still in force, and one of the most rarely amended constitutions in the world, the U.S. Constitution contains relatively few of the rights that have become popular in recent decades, while some of the provisions that it does contain may appear increasingly problematic, unnecessary or even undesirable with the benefit of 200 years of hindsight."
Law, who teaches at the Washington U. law school and its department of political science, said the study of constitutions falls in what he called a "dead zone," between the two disciplines, but has been attracting increased attention - especially this past week.
The interview has been edited for length and clarity.
When did this shift away from the U.S. constitutional model start to take place?
Law: One thing we didn't know was whether it was popular at all since 1946. Even in the 1950s, Justice (Felix) Frankfurter was telling the drafters of the Indian constitution not to follow us so closely, that they may want to steer clear of some of our problems.
What was interesting was to see how the cycle was influenced by time. It really begins to drop in the late 1980s and early 1990s. That's so sad because that's the 200th birthday of the Constitution, and that is when it begins to drop to dramatically.
How much is the problem a function of how difficult it is to amend the U.S. Constitution?
Law: People point rightly to the fact that you need a two-thirds majority of this and a three-fifths majority of that. But here is the part that gets overlooked. A lot of people refer to the constitution as a kind of sacred text. We have put it on a pedestal. It has become a symbol of our nationhood. But it's also supposed to be a working blueprint for government.
When you put something on a pedestal, people get antsy about updating it. The fact that the constitution has become a civic religion for Americans and a sacred text means that we no longer have the kind of necessary detachment to have a document that serves our current needs.
Is the answer a new constitutional convention? How would something like that work in a time of such sharp political differences?
Law: A lot of people want to retake the constitution, take it away from the courts, and I can understand that makes other people nervous. They are afraid of letting the genie out of the bottle. You go online and read the comment sections on stories and you get nervous. Do we really want to turn the constitution over to these people?
But that leads to a horrible irony. We became the country that pioneered the concept, the very idea of having a written constitution and the belief that we could govern ourselves. It would be better if we could discuss and set down on paper the way we should govern ourselves, with a judiciary to enforce those limitations. The very idea of having a government of laws and not men, the idea of the rule of law -- all of these innovations were pioneered wholly or partly by innovations by the United States.
The problem is that everyone else has moved beyond this. One of the ideas we pioneered was the idea of having a convention -- that once in a while we should get together and talk about what the constitution should be. We could take our best shot at it with all we could muster. The irony now is that we are afraid of having a constitutional convention. Other countries have one on average every 19 years, and we're afraid of doing it at all.
Is this partly a problem because other parts of the world just don't like the United States?
Law: There are two obstacles here to importing the American constitution. There may be an element of 'We just don't like America.' That is very hard to document. But it cuts both ways. Others may look to America because this is the American way. Our allies have no problem in looking to the American constitution as a model. There is some anti-Americanism on the part of some countries, but there is also pro-Americanism on the part of other countries.
But the other big obstacle is not just the age of our document but how our justices go about interpreting our document. The document is more than 220 years old. When justices ask, as they did recently, whether putting a GPS unit on a car is a constitutional search and seizure, they try to resolve this question in terms of what does the text of this really old document say, and what did people in 1787 mean by that? That is not the type of question that people in other countries find relevant.
With a name like Law, were you destined to go into the field that you have chosen?
Law: In my case I was always predisposed. My sister always said she never would go to law school, that she wanted to be an artist. In the end, she went to law school. In the end, it gets you.