Constitutional Competition

February 27, 2012

 

Constitution

Joel S. Hirschhorn–Among Americans there remains strong pride about the US Constitution, even though there is widespread support for creating reform amendments to it.  Globally, however, what should surprise Americans is a significant loss of respect for it.  Other nations, especially those creating new democracies, see better constitutions elsewhere.  This is not opinion.  It is fact.  And it is important to understand this historic shift.

 

A new university study sends a disturbing message to all Americans that want to hang on the fiction that the US constitution is not only the world’s best one, but does not need to be improved.  Do not mentally block this finding: “The U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere,” according to the study by David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia.

 

What exists today is far different than what was proudly proclaimed in 1987, on the Constitution’s bicentennial, by Time magazine which calculated that “of the 170 countries that exist today, more than 160 have written charters modeled directly or indirectly on theU.S. version.”

 

Why has the US Constitution lost standing abroad even though Americans cling to their belief that it is sacred and the world’s best constitution?

 

The new study examined 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.  This is what they found: “Among the world’s democracies 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.”

 

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   In other words, the US Constitution is old and out of date.

 

A Supreme Court Justice has also weighed in.  In a television interview during a recent visit to Egypt, Justice Ruth Bader Ginsburg said. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012.”  She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.  Such a view should be respected.

 

Should Americans disregard these findings and perspectives?  Absolutely not.  Only if more people pay attention to this global trend will they better see the need to seriously consider constitutional amendments to improve American democracy.  The core problem, however, is one shortcoming of the US Constitution: the great difficulty in amending it.  In this regard, noted legal authority Sanford Levinson wrote in 2006 in his book “Our Undemocratic Constitution” that “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.”

 

All over the country diverse people and groups on the right and left are advocating for reform amendments, such as getting all private money out of politics, creating term limits for Congress, removing personhood for corporations, and imposing a balanced budget requirement on Congress.

 

The problem is that Congress is quite unlikely to propose serious reform amendments, which means that the option in the Constitution for an Article V convention of state delegates must be used.  But Congress refuses to obey the Constitution by ignoring the hundreds of state applications for a convention from 49 states, more than the single requirement of two-thirds of states in Article V.  Learn more at the website of Friends of the Article V Convention, the nonpartisan national group advocating for the first convention.

 

Consider this: Other nations routinely trade in their constitutions wholesale, replacing them on average every 19 years.   But it would be silly to propose a totally new US Constitution; that is too radical an idea.  However, it is amazing that Thomas Jefferson, in a 1789 letter to James Madison, noted that every constitution “naturally expires at the end of 19 years” because “the earth belongs always to the living generation.”  Too bad the Constitution gives Congress the power to convene an Article V convention.

 

Americans should wake up, stop their delusional thinking and recognize that the US Constitution needs to be updated through reform amendments.  We the people must pressure Congress to convene the first Article V convention.  Otherwise the Supreme Court will continue to make interpretations that are more political than legal in nature and the federal government will continue to erode personal freedoms and liberties.  And more and more other democracies will operate under better constitutions.

 


4 Comments

  • As an early proponent of modifying our Constitution, I would say the reason other countries are shying away from our Constitution as a model is because We the people have been left out in the cold, when it comes to enforcing the Constitution. The drafters left out one very important piece of the Constitution, that is giving some form of enforcement power to the people.

    Instead of giving Congress the power to call a convention it should have been given to the different states or a convention of voters from each state to call a convention.

    Lest someone go off on the deep end and think that an Article V convention would run amuck with amendments, remember it still takes 3/4 of the states to ratify any amendment, just as if Congress proposes an amendment.
    We the people have no way to force Congress to act to call a convention.
    Although, there is one way that could be tried, if 2/3 or more of state Attorney Generals would go directly to the Supreme Court with a lawsuit against Congress for refusing to follow the Constitution, we would either get action or The Supreme Court would be complicit with Congress in refusing to obey the Constitution.

    Any thought on this suggestion?

  • Bill Walker says:

    Robert is slightly behind the times in regards to current events about an Article V Convention. The suit of which he refers has already been filed not with the Supreme Court but the Attorney General. See: http://foavc.org/reference/Holder.pdf Under federal law and the Constitution it does not require two-thirds of the state attorney generals to file a suit; only one. Just as with the criminal complaint, it only required one citizen to file it. The crimes are violation of oath of office and criminal conspiracy. Since the story was written, it has been learned that AG Holder referred the complaint to the criminal division of the Department of Justice. He did this 3 days after receiving the complaint. According to the law once he did this a 90 day time period by which the government is required to either prosecute or defer kicks. More importantly, under the law the DOJ must refer and inform the matter to a federal judge who must approve the decision in question. The latest information on this complaint is that it is currently being investigated by the FBI who in turn will report back to the criminal division and the AG. All of this must be accomplished by no later than April 23, 2012.

  • Gordie Hayduk says:

    Review this suggested 28th Amendment – improve upon it if you can.

    http://www.article-v-convention.com/files/28th-amendment.html

  • Roy Ellis says:

    Joel, interesting and informative article. And, the university study is interesting as well as it relates to 720 constitutions adopted by 188 countries. That implies a high turnover in constitutions which indicates that putting together a constitution that can stand the test of time is difficult. Recall too, that some of the Founder’s felt that a constitution needed a redo every 20 years or so.

    But, this one has served us well over a couple of centuries. The Founder’s provided for the Constitution to be amended by congress thru direct legislation and by the people through Article V Convention (AVC). The Founder’s believed AVC was necessary to handle a ‘recalcitrant’ congress who were expected to take power unto themselves and relinquish none, which is exactly what has happened.

    Congress will never give in to a balanced budget, term limits or any proposed amendment that would restrict their power. Therefore, they will continue to deny AVC to the people, no matter what the petition.

    It seems so few are willing to invest themselves in a strong effort to push for AVC. Perhaps a strong coalition could be formed by bringing groups supporting many different issues together. I continue to believe that the path of least resistance to reform is through a skillfully designed 3rd party, impervious to corruption or co-option and with a primary mission to remove the money influence from politics and gov’t. If we can get rep’s and senator’s in place through a 3rd party we could weaken the corpocracy leading to acceptance of AVC for the people.

    Am very pleased with the information provided by Bill Walker. We need to continuously bring pressure against the system to relent on AVC. I do expect the DOJ to do a ‘workaround’ but the effort will not end here.

    The Founder’s gave us a way to reform and modernize our constitution but for the foreseeable future we are stuck on ‘recalcitrant’, IMO.

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