Why “‘We the People’ Loses Appeal” misses the point
Editor’s note: throughout 2012, the National Constitution Center will be the national headquarters of a historic milestone: the United States Constitution’s 225th anniversary. Click here to view the extraordinary schedule of onsite and online programs.
I like Adam Liptak a lot—in fact, he and my brother were classmates at Yale Law School, during my first three years on the faculty there. But I think Liptak’s article in The New York Times, in which he argued that the United States Constitution’s global influence is declining, is off base. The headline—“‘We the People’ Loses Appeal with People Around the World”—makes things even worse, because it invokes the Preamble’s opening words yet completely misses the powerful ideas expressed in those words.
Liptak cites a new study, authored by David S. Law and Mila Versteeg and soon to be published in NYU Law Review, which concludes that because certain aspects of the U.S. Constitution are not replicated in many of today’s constitutions throughout the world, the influence of this 225-year-old American document is waning. But the key point is not that certain democracies are using slightly different democratic systems than the one outlined in the U.S. Constitution. The key point—the real headline utterly missed by Liptak and the sources he cites—is that thanks to the U.S. Constitution, there are a lot more democracies.
In my view, the U.S. Constitution is nothing less than the hinge of world history, the most profound political event in the last millennium. Before 1787, democracy existed almost nowhere on the planet, and had rarely existed anywhere in the previous millennia of recorded history. In the few places where democracy had existed before 1787, it had reigned over small city-states governing people who spoke the same language, had the same climate, and worshiped the same gods. Then the U.S. Constitution came along and offered a continental and pluralist vision of democracy, the likes of which had never before been seen or even dreamed imaginable. Today, thanks to the success of this American project of democracy, half the world is democratic—and democracy continues to spread.
I have reservations not only about Liptak’s conclusions but also about the depth and significance of Law and Versteeg’s study. Their study created a 60-variable index of “rights-related content” to code and analyze the similarities and differences among constitutions. Liptak concedes, “There are, of course, limits to empirical research based on coding and counting, and there is more to a constitution than its words.” This is absolutely true—and quite an understatement. The precise phrasing of rights is hardly the essence of a constitution; whether a system is fundamentally democratic/pluralistic is of the essence. Maybe, as Liptak puts it, Law and Versteeg’s study “bristles with data.” But I have serious questions about their bottom-line, big-picture judgment.
Much of the American project of democracy depends on implicit provisions and state bills of rights, which are not featured in the Law-Versteeg analysis. In addition, there are some rights, such as the right to travel and the presumption of innocence, that are core features of our national constitution, whether or not they appear “in so many words.” I suspect that the fixation on words is a product of the simplistic “coding” procedures of the Law-Versteeg analysis. And as for the “entitlement to food, education and health care” that Liptak says our Constitution overlooks: state constitutions and landmark federal statutes that protect these rights (like Medicare and the Affordable Care Act) are simply omitted from the Law-Versteeg analysis. (My new book, due out in September—America’s Unwritten Constitution: The Precedents and Principles We Live By—has a lot of discussion of these supplements to our written Constitution.)
Liptak also points out that the U.S. Supreme Court is less central than it used to be among various national supreme courts. I think he is right on that. But much of the U.S. Constitution is not about courts at all—so perhaps Justices Ginsburg and Scalia, who were quoted in the article, have a certain tunnel vision on all this. In any event, in many other countries the very idea of judicial review—of judicial enforcment of constitutional law—is fundamentally based on an American model of judicial review. So yes, in some details, other countries are diverging. But in the very concept of judicial review, the world is becoming more . . . American!
In fact, in many ways the world is becoming more American—and Americans themselves are becoming more worldly, thanks to immigration changes that are making the U.S. far more demographically representative of the world than ever before. We are the world and the world is us (small us and capital U.S.).
Liptak’s catchy headline references “We the People,” likely because they are the most well-known words of the U.S. Constitution. Liptak and others seem to believe that what matters is the words themselves. We should consider instead what matters most, which is what those words, “We the People,” stand for: a government of the people, by the people, for the people; a democracy. That is why the U.S. Constitution was revolutionary at its inception, and that is why is continues to inspire people throughout the world today.