Our Exceptional Constitution

Scholars have long debated the extent to which the U.S. Constitution has influenced constitution-making and constitutional interpretation abroad.  David Law (Washington University) and Mila Versteeg (Virginia) have recently posted an interesting empirical study of the extraterritorial influence of the U.S. Constitution, entitled “The Declining Influence of the United States Constitution.”   I recommend it to anyone interested in comparative constitutionalism and formal constitutional modeling.  

As the title suggests, the authors conclude that in recent decades (particularly since the 1990s), other nations have become increasingly unlikely to model their rights-related (or structural) constitutional provisions on the U.S. Constitution.  Their study, which is based on 60 years of data, offers a systematic analysis of the declining influence of U.S. constitutionalism abroad.  With regard to rights in particular, the authors conclude that the U.S. Constitution is increasingly far from the global mainstream, both in the sense that it contains provisions not found in most constitutions (i.e., a right to bear arms, a formal separation of church and state) and in the sense that its Bill of Rights does not contain what the authors refer to as a developing “generic component” of constitutional rights (the existence of which casts some doubt on the notion that constitutions are strongly expressive instruments).  Lack of formal modeling is only one datum concerning the declining influence of the Bill of Rights.  Many commentators have argued that the Supreme Court’s reluctance to cite or rely upon foreign legal and constitutional sources may be diminishing the global influence and appeal of American constitutional jurisprudence and norms.  

Insofar as countries still look to the U.S. as an example, Law and Versteeg conclude that it is likely not to imitate but rather to avoid the Constitution’s perceived flaws.  Although there is no emergent global model, the authors conclude that at least with respect to nations sharing an Anglo-American legal tradition, Canada’s constitution has become far more influential than the U.S. Constitution.  The causes for the decline of U.S. constitutionalism are varied.  The authors point to several possible factors, including the rise of a superior model, a “general decline of American hegemony,” “judicial parochialism,” the “obsolescence” of the U.S. Constitution, and America’s exceptionalist creed.   


Like the rest of the Bill of Rights, the First Amendment is exceptional.  Nations are not inclined to copy its absolutist language.  As in other rights areas, many have opted instead for speech and press language similar to that found in transnational human rights instruments.  For some time now, foreign courts have been unlikely to follow American approaches with regard to hate speech, libel, and other First Amendment concerns.  The global marketplace has reached rather clear conclusions on these issues. 

With regard to both formal modeling and application, the First Amendment is likely to remain exceptional among the world’s expressive (and religious) liberty paradigms.  As I mentioned in previous posts, this has implications for “exporting” First Amendment norms and principles.  In essence, Law and Versteeg’s study provides support for the proposition that the market for exporting formal First Amendment norms has drastically diminished.  The principal export markets still open include diplomatic channels and the global market for communications technologies.  As the U.S. becomes ever more exceptional in terms of free speech and press freedoms, it might begin to exhibit greater protectionism in an effort to preserve its exceptional approach.  Or it might find there are benefits to transnational engagement and dialogue, even where cultural and constitutional expressive norms seem hard-wired and unalterable.  Whichever approach the U.S. adopts, in light of the emerging consensus on rights it will at least have to pay “decent respect to the opinions of mankind.”

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14 Responses

  1. Shag from Brookline says:

    This post brings to mind Oliver Wendell Holmes’ “The life of the law has not been logic; it has been experience.” Perhaps this tracks reactions of other nations to America’s Constitution in considering their constitutional forms. I would consider this a compliment to our Constitution, without suggesting that it should not be improved. That’s progress.

  2. Brett Bellmore says:

    Well, of course: Our own governing class doesn’t like our Constitution. When, after defeating Japan, they wrote a new constitution for that country, did they model it after our own? No. Because they don’t like it.

    They’re not supposed to like it, it’s a charter designed to limit them, and who likes being limited? So they do nothing to promote it abroad, and probably privately warn governing classes in other countries against it.

  3. Joe says:

    In practice, the 1A is not “absolutist,” though (at least in recent decades) the free speech and press provisions on more so than even the likes of Canada.

    But, it is not like things don’t go the other way. South Africa’s constitution protects various groups, equal protection-wise, specifically. Homosexuals, e.g., obtained clear protection in rulings, if anything more clearly than the USSC provided. In fact, South Africa even allows some native groups to practice polygamous relationships.

    The death penalty, access to the courts (Israel, e.g., has broad access allowances), rights for the poor and other issues show that we aren’t as “exceptional” in some ways than other nations. Of course, many nations, long before ours, didn’t allow slavery under its laws, even if they had no written constitution as such.

    It is quite true some aspects, some good, some open to debate (e.g., not allowing those who come here as two year olds to be President), are exceptional.

    As to our “own governing class,” ultimately its “we the people.” Sure enough, in various ways, they don’t like some of the limits. And, I don’t know, the Constitution of Japan — obviously since it was for a different people it wouldn’t be just the same as one written in the U.S. in 1787 — seems to be inspired by our own in various ways, down to judicial review.


    Anyway, as to the 1A, various nations protect individual religious faith too, finding the Employment Division v. Smith approach improper. We too are somewhat “exceptional” in that respect, perhaps.

  4. Joe says:

    Overall, “there are benefits to transnational engagement and dialogue” … each side can learn from the other. The Amanda Knox case, e.g., is interesting in that the Italians handle criminal appeals differently. Sentencing Law & Policy Blog had an interesting thread on the issue.

    My #3 statement is a generalized one and is not fully responsive to the post. Take it in that spirit. I welcome the author’s viewpoint and found his book quite interesting.

  5. Shag from Brookline says:

    Brett seems to suggest that Japan had no say whatsoever regarding its constitution, that it was the USA way or the highway. Is there a cite for this? I’m sure Brett understands that the culture of Japan post-WW II was a tad different than the culture here at the time the US Constitution was put in place. But I think Brett has jumped the tracks with:

    “Well, of course: Our own governing class doesn’t like our Constitution.”

    I think Brett can agree with the Civil War Amendments, women’s suffrage, and a few other amendments as progress (although Brett’s idea of progress seems to be looking through the wrong end of the telescope to the past). We can have our disagreements with certain Supreme Court decisions and how the Constitution should be interpreted. But we can live with our Constitution, even though not perfect. And parts of our Constitution have been of assistance in helping newer democracies. Maybe we need some changes to bring us greater democracy; but Article V makes this difficult.

  6. A.J. Sutter says:

    The fundamental draft of the 1946 Constitution of Japan (Kempou) was indeed prepared by the Supreme Commander for the Allied Powers (SCAP). The Japanese government had earlier presented a draft, which SCAP rejected as too conservative. One narrative is that SCAP presented its draft to the Japanese government as “take it or we’ll make it public anyway.” Fearing an election backlash in the latter case, the government capitulated and presented SCAP’s draft as their own. See, e.g., Shigenori Matsui’s The Constitution of Japan: A Contextual Analysis (2011) @13-16. An alternative narrative is that there was more Japanese “collaboration” in refining the text of the draft after SCAP’s version was published. See, e.g., Beer & Maki’s From Imperial Myth to Democracy (2002). The degree, if any, to which the Kempou was “imposed” on Japan is a topic of academic debate here in Japan even today. Nonetheless, the Kempou has never been amended in over 60 years — longer than for any other constitution in the world. This makes it harder to argue that the country operates under an “imposed” constitution today.

    The Kempou wasn’t written on a tabula rasa. There had been a previous constitution, dating from the Meiji era (1889). Technically, the current Kempou was enacted as an amendment to the Meiji Constitution. Some broad features, such as there being an Emperor and a bicameral legislature, were retained. Overall, SCAP’s version was far more democratic — i.e., closer to the US Constitution — than the version that had been proposed by the government. That there wasn’t, say, a right to bear arms had nothing to do with the “governing class’s” dislike for the US Constitution, but with the fact that the US didn’t want Japan to re-arm. The governing class theory also doesn’t explain why the Kempou guarantees equal rights for women (e.g., Arts. 14, 24). This provision was written by a 22-year-old Austrian-born musician, a civilian who’d spent most of her life outside the US but who’d graduated from a US women’s college.

    Moreover, what is in a constitution doesn’t necessarily have much to do with what are the facts on the ground. That’s the premise of the whole Jack Balkin/”Constitutional redemption” symposium on this blog a couple months ago. Similarly, the Kempou’s guarantees of freedom of speech and of the press, as well as of equal rights to women, are honored more in the breach than in the observance by Japan’s Supreme Court. As for what passes for judicial review here, I’ll spare you the rant.

  7. Shag from Brookline says:

    I understand that the Iraq constitution does not include a right to bear arms provision despite a gun tradition in that nation. The US had a hand in Iraq’s constitution. Unlike the situation in Japan, Iraq needs to be armed to survive in the Middle East without the presence of US troops providing defense. Japan as an island does not have the border problems of an Iraq.

    I thank A.J. for his comment.

  8. Shag from Brookline says:

    I’ll be making a library trip this morning and my reading material on public transit to and back will be Neil Komesar’s “Constitutionalism And The Reality of Rights” noted with a “highly recommended” at Larry Solum’s Legal Theory Blog (providing the abstract and link), available via SSRN:


    The article is a short 14 pages. The abstract suggests, to me, relevance to this post.

  9. Brett Bellmore says:

    “Maybe we need some changes to bring us greater democracy; but Article V makes this difficult.”

    I suppose it would be fair to say that the Congressional bottleneck in Article V makes amendments difficult, but mainly in conjunction with living constitutionalism. As, absent a convention, amendments originate in Congress, and a deferential Supreme court has been sparing Congress the need of amendments to achieve the changes it wants, Congress has ceased originating amendments.

    The fact that a bank robber doesn’t bother filling out loan applications doesn’t make getting a loan “difficult”.

    I suspect it will not be too much longer before we overcome the Congressional refusal to originate popular amendments by holding a convention. At that point we may very well have a genuine constitutional crisis, when Congress attempts to prevent the Convention, or take control of it. Interesting times, alas.

    In any event, I have to agree that many aspects of our Constitution are exceptional, the founders’ “new order for the ages” not exactly having swept the globe, and barely hanging on here.

  10. Shag from Brookline says:

    Brett may be suggesting a counter to the OWS protests by considering the founders’ version of “stocks and bonds.” Of course the 1%-ers may claim this as cruel and usual, but not if limited to the 99%-ers. (Query: Where might the 1%-ers hold their counter-protests?) Brett’s optimism for the past clashes with his pessimism for the present (and the future). Brett’s lament of the Constitution ” … barely hanging on here” suggests he should get dressed in reality. And Brett shows his Second Amendment chops with:

    “The fact that a bank robber doesn’t bother filling out loan applications doesn’t make getting a loan difficult’.”

    By the way, Article V may serve as both a sword and a shield at times for or against democracy.

  11. A.J. Sutter says:

    Shag, in these days of ICBMs, nuclear weapons in China and N. Korea, and a US that is both less interested in Japan and less able to defend it, being an island nation is less of a shield than it used to be. Moreover, the US is putting a great deal of pressure on Japan to join in foreign adventures like Afghanistan and Somalia, though for the Jietai (“Self-Defense Force”) to be pulled into those conflicts strikes many people here as a grotesque stretch. Unfortunately, this one issue — centered on Art. 9, pursuant to which Japan renounced war, force and the threat of force as means of settling international conflicts — tends to distract almost everyone from thinking about amending the Kempou to strengthen democracy here; it’s like arguing about widening the door when the foundation’s subsided and there are some gigantic holes in the roof.

  12. Shag from Brookline says:

    Might an “Art. 9” be appropriate for America, or is that out of the question for a superpower? How much has Japan’s “Art. 9” contributed to benefit its economy up to the 1990s economic malaise?

  13. Brett Bellmore says:

    Not a bad idea; I’ve suggested in the past that the ‘defense’ department be divided into two branches, a genuine defense department, prohibited from engaging in any acts of aggression beyond American territory, and an aggression department, funded purely by donations.

    We are suffering from an increasingly bad case of imperial over-reach, the question being whether it’s already gone terminal, or there’s still time to back down.

  14. Shag from Brookline says:

    I read Neil Komesar’s paper and it is indeed relevant to this post. It is also relevant to the OWS protests. The phrase “increasing numbers and complexity” is repeated throughout this short paper that relates back to this:

    “As relevant populations have grown in size and as social interaction and social issues have grown more complex, the reality of societal decision-making institutions has out-grown the conventional conceptions of political processes and courts and the rhetoric of rights.”

    The paper makes no references to originalism or living constitutionalism. But it was difficult not thinking about interpretive methods while reading the paper. And I thought of Schumpeter’s “creative destruction” as perhaps applying to constitutions. And C. Wright Mills’ “The Power Elite” was on my mind as I read the paper; the paperback “New Edition” I have illustrates on the cover the White Hours, the Pentagon and Wall St. There is a lot packed into a mere 14 pages.