American Constitutionalism's Modern Global Relevance

Abstract

Legal scholarship has argued with increasing frequency that the United States Constitution is out of sync with evolving human rights norms and, as such, the Constitution’s influence on other countries’ constitutionalism is waning. By in large, these studies address primarily the influence of the U.S. textual constitution, or else the tendencies of selected foreign courts to cite the U.S. Supreme Court. None to date have considered quantitatively the impact of American constitutional law, that is, the constitution as it has evolved through judicial interpretation. This study does so. For the foreign constitutional data, it borrows from a previous data set quantifying all of the world’s constitutions (Law & Versteeg 2010). In this data set, each of the world’s constitutions is represented by a series of sixty binary variables indicating whether the constitution nominally recognizes a given right. Considering the entire body of American constitutional jurisprudence, I supplement the data set by quantifying the rights-related provisions embodied in the American system of constitutional law. Specifically, I characterize the U.S. “Constitution” as the entire body of American constitutional law. As part of that process, I assess for every year from 1946 to 2006, inclusive, whether American constitutional law recognized each right regardless of whether the textual Constitution explicitly included it. I then calculate the similarity between every constitution adopted throughout the world during the sixty-one year period (729 total constitutions), and U.S. constitutional law at the time of the adoption. In comparing the U.S. Constitution to those of other nations, I calculate the similarity index between U.S. constitutional law and all of the world’s textual constitutions. I conclude that global similarity between national constitutions and the U.S. constitution is decreasing, and there is actually greater dissimilarity than between the U.S. Constitution’s text and the world. However, in contrast to the constitutional text-world dissimilarity, the dissimilarity I observe appears to be driven by the United States’ recognition of many more rights, particularly those involving civil and political rights. Moreover, the observed disparity is greatest among non-common law-based countries, and in Latin America. Among common law nations and in Europe and Canada, there exists relative similarity, and that similarity is holding steady or increasing since 1990. These initial findings lay the groundwork for an expanded project, which will use similar methods to compare the constitutional law systems of several dozen countries of various legal traditions.