Poor Backwards America

Since Justice Ruth Bader Ginsburg told Egyptian audiences in Cairo that nations should use models of government other than the United States Constitution for their new constitutions, a small backlash has begun to grow larger. Ginsburg prefers South Africa’s constitution (South Africa’s?!), or the Canadian basic document which contains no less than eight specific prohibitions on freedom of speech and religion.

Letting no grass grow under its feet, Politico wrote a one-sided “news” article on the subject seemingly supporting Ginsburg’s view. The Politico article is entitled: “Study: Constitution in Decline,” and takes its impetus from a study done by David S. Law and Mila Versteeg entitled: “The Declining Influence of the United States Constitution.” The study was prepared for Washington University in St. Louis, and published in the New York University Law Review. To start with, there is a substantial difference between the Constitution in decline and the decline in influence of the American Constitution overseas. But I can’t disagree with the former, and the latter is a simple fact. Citing genuine statistics, the study concludes that “the US Constitution appears to be losing its appeal as a model for constitutional drafters everywhere.”

The authors looked at 729 constitutions adopted by 188 different countries from 1946 to 2006. They found that the influence of the US Constitution peaked in the 1990s at the end of the Cold War, then declined rapidly. This seems to be counterintuitive, but the statistics hold up.

There are many reasons why this might be true. The most obvious is the misplaced emphasis on “human rights” over individual rights. This is at least partially understandable. Many of the nations adopting new constitutions have little or no experience with self-rule, freedom, or the concept of ordered liberty. They are products of either the end of colonialism or the end of oppressive dictatorships. The siren song of “human rights” makes considerable sense taken in that context.

But most of these nations also have little experience with the ideals of private property ownership, contracts, and the rule of law rather than of men. Egypt and possibly Syria would be prime examples. Get rid of that nasty military dictator, replace him with democracy, and replace one-man rule with the goal of one man, one vote, one time. Egypt is quickly becoming openly hostile to America and its institutions, and its constitution is likely to look a lot more like the Koran than the US Constitution.

Another reason which hits closer to home is the activity of the “progressives” who have, starting with Woodrow Wilson, considered the Constitution to be a roadblock in the way of gross social experimentation and central government control of daily affairs. Ginsburg’s remarks bear that out. And shortly after Ginsburg made those remarks on foreign soil, Barack Obama followed up with a political speech demeaning the Constitution as being so creaky that it was impeding his efforts to fundamentally transform America.

With a few notable exceptions, administrations of both political parties have followed the liberal progression from self-government and the rule of law to government by decree and disrespect for the separation of powers so beautifully laid out in the Constitution. The prerogatives of Congress have been overcome by executive orders and bureaucratic diktats from the executive branch, all in derogation of the specific ground rules of the Constitution.

Another (perhaps minor) factor is the very recent use of foreign law in Supreme Court decisions. Foreign law has always been an element of court decisions where international treaties are involved. But even then, the Supreme Court has often interpreted treaties which are not self-actuating solely by use of American law and the Constitution. Lately, the four liberal members of the US Supreme Court have joined with a swing vote to render decisions citing foreign law that quote air-fairy “fundamental human rights.” The favor is not being returned. Foreign courts cite American constitutional decisions at a rapidly decreasing rate.

And finally, there’s the false argument that (in the words of the study): “No evolutionary process favors a specimen that is frozen in time. At least some of the responsibility for the declining global appeal of American Constitutionalism lies with the static character of the Constitution itself.” That is the argument of the intelligentsia, but the booboisie picks it up quickly.

The arguments include “the Constitution provided for slavery” (which it didn't) and “the Constitution denied women the right to vote.” Those arguments forget a fundamental fact. The Constitution is a bedrock document, and changing it was made purposely difficult. But it is not static, nor is it frozen in time. Those things which the original document got “wrong” or didn’t address were corrected or addressed in the Bill of Rights and all the subsequent amendments. When citing the Constitution, it is unfair and just plain wrong to refer only to the original document. The Constitution, as amended, is an integrated document balancing multiple rights with multiple restraints.

Simply put, as the Founders well recognized, the Constitution provides for the maximum amount of freedom without surrender to the will of temporary majorities. That latter concept is misunderstood throughout the world, and our indigenous left plays it for all it’s worth. Any document which prevents a nation from exercising what may seem to be “the will of the people” (on any given day) will be unpopular in nations which desire pure democracy—a concept which has failed every time it has ever been tried.

Anti-Constitutional, pro-democracy advocates should read history. The Founders certainly did. And their Republic, no thanks to progressive administrations, has stood the test of time since the proclamation of the Bill of Rights. But can it survive Barack Obama and Ruth Bader Ginsburg? Why should fledgling nations respect our Constitution when a sitting Supreme Court justice and our Chief Executive Officer don’t?