Functions of Constitutions

In a response to a story that I blogged about yesterday, New Yorker Magazine Senior Editor, Hendrik Hertzberg, takes issue with the claim that the US Constitution has become increasingly irrelevant as a model for constitution-builders worldwide. Hertzberg writes:

The problem is that the study focusses almost exclusively on rights—the individual and civil rights that are specified in written constitutions. But it almost totally ignores structures—the mundane mechanisms of governing, the nuts and bolts, which is mainly what constitutions, written and unwritten, are about, and which determine not only whether rights are truly guaranteed but also whether a government can truly function in accordance with democratic norms. Or function at all with any semblance of efficiency, effectiveness, and accountability.

In Chapter 6 of the Dyck text, we learn that there are five main functions of any constitution, the first one of which “to define the structure of major institutions of government.” Other major functions are:

  • To divide powers and responsibilities among the various institutions of government
  • To regulate relations between the citizen and the state (this is where rights–civil, legal, political, sometimes economic, social and cultural–are enumerated)
  • To serve as a political symbol
  • To specify a method for amending the constitution

What does the study in question say about whether the US Constitution is being used as a template in these other areas? You’ll have to wait until the study is published in June of this year to find out.



Countries no longer look to US Constitution as Template

Via the New York Times, we learn of the waning popularity of the US constitution as a guide for constitution-makers worldwide. A study in the New York University Law Review, which will be published in June, shows that whereas in 1987 a vast majority of the world’s countries had “written charters modeled directly or indirectly on the U.S. version”, today the ” U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere,” According to recently retired US Supreme Court justice, Ruth Bader Ginsburg [it was Sandra Day O’ Connor, of course, who recently retired from the SCOTUS], who was interviewed on Egyptian television last week (see video below), had this to say:

“I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

Two reasons that this many constitutional scholars agree with Bader Ginsburg is that i) the US constitution guarantees relatively few rights, and particularly guarantees none of the “second-” and “third-generation” rights, such as social and economic rights, and group-based cultural rights, and ii) the US constitution is notoriously difficult to amend. It is, in fact, the most difficult to amend of any constitution today. The Times wryly notes that Yugoslavia used to hold that distinction. Yugoslavia, as we know, no longer exists today.

The US constitution, however, was plenty good enough for Captain Kirk!