Our Unlovable Constitution

A new study by David S. Law and Mila Versteeg concludes that the world’s democracies are no longer emulating the U.S. Constitution, and are instead resorting to other templates that guarantee more “generic building blocks of global rights constitutionalism,” including “women’s rights,” “the right to social security, the right to health care, and the right to food.”  The study suggests that the U.S., “rooted in a libertarian constitutional tradition that is inherently antithetical to the notion of positive rights,” is in danger of becoming a “legal backwater.” 

Supreme Court Justice Ruth Bader Ginsburg seems to agree.  According to a recent interview, Justice Ginsburg said “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said.  She recommends the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights. (Via NY Times.)  Law and Versteeg similarly find that “the average constitution has increasingly grown to resemble the International Covenant on Civil and Political Rights and the European Convention on Human Rights, as well as the African Charter on Human and Peoples’ Rights and the Charter of Civil Society for the Caribbean Community.” 

The other “generic building blocks” Law and Versteeg conclude are missing from the U.S. Constitution include “Right to work,” “Right to unionize and/or strike,” “Physical needs rights,” “Right to education,” and “Limits on property rights” (e.g., “property may be limited by its social function”).  Other popular “rights” include “Citizen duties,” “Right to a healthy environment,” “Other worker’s rights,” and “Artistic freedom.”

Two observations:

First, it is not clear that Americans ought to care whether other countries use the U.S. Constitution as a template.  I can think of just two possible arguments why they should:  (1) conformity is somehow good for its on sake; or (2) other countries’ constitutions are somehow substantively better than ours, and thus we should bring ours up to snuff.  The study does not raise either argument, but it is hard assume the authors have no opinion on the matter and yet proceeded to spill 80 pages of ink painstakingly studying the issue.  This is the way modern social science is done, I understand:  treat all facts as created equal and avoid offering any overt “value judgments.”  The authors’ silence on the values question is so deafening, though, that their refusal to simply lay them on the table is a perhaps unexpected distraction. 

Second, neither the study nor Justice Ginsburg address the role the Court has played in modifying the constitution and preventing formal amendments.  The Constitution used to be formally amended more frequently than it is today.  It is counter-intuitive that it is now seldom amended even as people tend to understand less and less of its “original” meaning.  As I expressed in a recent discussion with James Hanley, by now, the meaning of the Constitution must seem very distant to most Americans.  Most discussions about the Constitution do not even quote its text.  Originalism makes the Constitution distant because it means people need a history degree before they can understand it.  Living constitutionalism makes it distant because it means people need a law degree to understand it.

If Americans are taught that they can’t understand what their Constitution says—or worse, that it has no fixed meaning at all—then they will never agitate for change.  Constitutional participation will never be more than fighting over who gets to nominate and approve Supreme Court justices—the delegates to what Woodrow Wilson called our “constitutional convention in continuous session.”  A recent poll (which I can’t seem to find now) reported the oft-repeated observation that of all American political institutions, the courts are by far the most trusted.  But the poll went on to observe that most Americans believe that, when courts find rights in the Constitution, the rights are really in there and not just spun out of judicial philosophy.  If Americans are astray in their constitutional understanding, they’ve been led there.  

Despite this disconnect between modern Americans and their Constitution, we’ve little hope of amending it.  Even if the breathtaking amount of political will could be mustered, it can be bested or undone by a crack legal team and a carefully selected litigation strategy, or by a willful executive armed with a good crisis to forge a “constitutional moment” that changes our constitutional presumptions without any formal writing at all. 

Americans thus have little reason to feel they can understand the constitution, and less reason to feel they can change it. 

It seems unfair, then, for Justice Ginsburg to criticize the Constitution.  That document has proven fertile ground for her and her living constitutionalist colleagues.  And its ossification owes in no small part to legal and judicial philosophies to which she subscribes. 

Not that this is all the Court’s fault.  The great sin of slavery brought us Civil War, and with it a remade Constitution.  This, even before the progressive and liberal legal revolutions of the 20th century, made it almost impossible to know exactly what would be required by that new constitution, rededicated to the proposition that all men are created equal.  But it is still overwhelmingly true that Americans swear fealty to the original principles of the Declaration and the Constitution—that the basic unit of our political system is the individual and not the state; that rights are something in us and not given to us; that government is best which governs least.  Those American principles seem conspicuously absent from the constitutions in Law and Versteeg’s study.  If that fact has any effect at all on Americans, it will likely only cause them to redouble their commitment.

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at gmail.com.


  1. If we were to convene a new Constitutional Convention today, and by some miracle enough consensus could be formed to report a document out for ratification, it seems like a good bet that it would look a lot more like the more modern kinds of constitutions Justice Ginsberg points to approvingly. It seems to me it would be much easier for the delegates at the convention to trade horses by writing in rights for one anothers’ groups, than by the method our original Framers used, which was to tackle troublesome problems by kicking the can down the road. The result would be an explicit discussion of “unionization rights” or “rights of artistic self-expression.”

    And since it is the case that the original Framers did resort to a lot of can-kicking, that means that at some point after the Framing, someone has to tackle the problems they deferred solving. I’m not at all sure that democratic institutions are necessarily the optimal, or even appropriate, place in which to tackle issues of the limits of individual rights — rights which, necessarily, are exercised and tested by unpopular folks since popular activities tend to not be challenged by either the government or the electorate, but which also have proven, time and again, to be worth protecting despite the unpopularity of the manners in which they are typically exhibited in test cases.

    • I don’t think it’s a safe bet either way, but I’d go the other easy, given the general American commitment against the notion of positive rights. Generally, I’m opposed to holding a convention in the absence of a serious threat to the continued existence of the republic. Otherwise we’re just tinkering.

      • My point is not to advocate a new convention, something I would oppose as unnecessary if it were seriously proposed. I’m pointing out that in a hyper-pluralistic polity, logrolling is an easy, proven, and effective way to fashion a working majority — and a skill that the sorts of people who would be attracted to the role of Framer would likely already possess.

        But you could be right; can-kicking is the other easy way to reach a majority despite the presence of seemingly intractible issues.

        • in a hyper-pluralistic polity, logrolling is an easy, proven, and effective way to fashion a working majority — and a skill that the sorts of people who would be attracted to the role of Framer would likely already possess.


          I would also note that the U.S. had the first written constitution. It was an innovation, and as the first could hardly be expected to be the best. Now as you might guess, I’m all for negative rights and deeply suspicious of positive rights, so I’m not gung-ho on these modern constitutions myself. But as documents that satisfy contemporary polities, they may have a lot more going for them than ours.

  2. First, however problematic it may be when social scientists avoid value judgements, it’s even more annoying to talk to a person who is incapable of discussing historical or social questions without at least briefly putting value judgements on hold. For instance, try talking about the Founders and their compromises and (as Burt quite aptly puts it) kicking of cans down the road with a person who fellates the corpses of the Founders. Or, just as annoying, a person who won’t stop reminding you that the Founders were privileged white men. However much insight you get from value judgements, you can also sometimes get insight if you leave value judgements aside temporarily.

    Or try talking about a social science study on the internet. Go ahead, try it. Usually there’s somebody (often but far from always on the right) who is so wrapped up in value judgements about the media soundbite version (or is busy tilting at what he imagines the value judgements of the authors to be) that it’s impossible to get a word in edgewise because nobody could be bothered to RTFA.

    Second, I think Burt makes an important point about cans being kicked down the road. Even (especially?) in liberal societies with states that are restrained in their exercise of power, there are some arrangements that need to be revisited from time to time. I’m not saying that individual rights should be renegotiated to majority whim, but I am saying that from a Hayekian and Schumpeterian viewpoint the world is dynamic, and the greatest weakness of the state is that it is often bad at handling this dynamism. If a Constitution is all but impossible to amend, it will instead be reinterpreted when the consensus changes substantially. We can debate what the proper threshold ought to be for amending, but it should be harder than legislating and easier than it is right now.

    • Certainly not saying social scientists should take a page out of talk radio. But there wasn’t even a passing reference that spoke to the implicit question, “why are we talking about this?”

      I’m not sure I agree with the suggestion that the “amendments” by Court decisions or constitutional moments were because “the consensus change[d] substantially.” The archetype “constitutional moment” was the New Deal, which had everything to do with desperation and a resulting flurry of wild experimentation and little to do with consensus about what the constitution should or should not permit. I think Court decisions that set constitutional law tend to push the envelope of consensus. They may follow the trajectory to where a consensus is likely to occur. But the ones coming to mind were ahead of consensus, iirc.

      • There was a time, recently in fact, when the U.S. constitution was in fact a popular model for other states. I imagine that is the reason for the study, and something their intended audience would be aware of.

      • Certainly not saying social scientists should take a page out of talk radio. But there wasn’t even a passing reference that spoke to the implicit question, “why are we talking about this?”

        They’re talking about it because they find it an interesting intellectual question in comparative politics. It’s like discussing the effects of different voting rules without trying to tell anyone which they should prefer. You, as a reader, will work out your own normative evaluation of whether the conclusion they present is a good or bad thing.

        I know in my American gov’t classes the students are most receptive when I lay out the consequences of different structures but don’t try to tell them which they should prefer. Some walk away still thinking single-member plurality systems are the best, but at least they can explain what a Borda count is. If I try to persuade them a Borda count is best they feel I’m attacking them personally and they shut down.

        • I have done a certain amount of work on the mathematics of voting as a side hobby, and I’d probably argue with you quite vehemently if you tried to persuade me that Borda Count is best. Approval Voting FTW!

          (And, yes, I am indeed familiar with Saari’s work. If we assume a world of utterly non-strategic voters, he’s right, Borda is best. If we assume a world of hyper-rational strategic voters with perfect information, it is possible that Borda might be best. In any other world, I dislike it.)

  3. I don’t think the observation on amendments to the constitution is correct, From 1802 till 1865 none were ratified. We had 3 as a result of the civil war which IMHO resulted in some informal amendments to the constitution as well. Then you go 1913 and you have a burst of amendments the 16th 17th 18th and 19th in 10 years, then the 20th and 21st in 1933. Then the 22 in 1951 the 23 in 1961 24 in 1964, 25 in 1967, the 26th in 1971 and the 27th in 1992 after being submitted in 1789. So amendments occurred more often in the 20th century than before.

  4. “… most Americans believe that, when courts find rights in the Constitution, the rights are really in there and not just spun out of judicial philosophy. If Americans are astray in their constitutional understanding, they’ve been led there.”

    Nothing’s astray, no one’s been led anywhere; all those rights are right in there — it’s called the Ninth Amendment. Don’t let it scare you.

    • That may be a technically accurate reading of the text of the Ninth, karl, but seems to me that the reality of it is that pretty much every jurist, and every scholar, treats the Ninth as sort of a throwaway cluster of language that they don’t really know what to do with and therefore ignore. The closest I’ve seen to a full-throated invocation of the Ninth on its own merits is Justice Goldberg’s concurrence in Griswold v. Connecticut, and he only carried two other votes with him on that reading. In the majority, it got thrown in as one of the pieces of the text that casts a “penumbra” around the unenumerated right of privacy, for instance — but if privacy is an unenumerated individual right, why bother even mentioning the First, Third, Fourth, and Fifth amendments along with it?

      Instead, today we hear talk of reviving the vitality of the Privileges and Immunities Clause (maybe not a bad idea, although as you point out the Ninth could be used to reach that same place), or the debatable viability of the Substantive Due Process Clause (results I often like, achieved by mechanisms of suspect intellectual provenance), or reliance on concepts of privacy that stood upright as its own individual right in Griswold after a lengthy legal adolescence. And the wariness with which jurists approach the Ninth is not without merit — for the same reason that privacy, Privileges and Immunities, and Substantive Due Process are also subject to criticism and caution, namely that it opens the door to jurists writing in their personal policy preferences into Constitutional law.

      • I’m familiar with the phrase “substantive due process,” and the “due process clause,” but I’ve never actually heard it phrased as the “substantive due process clause.” Is that an innovation on your part, or do you actually hear others using that phrasing, and I’ve just somehow missed it?

        I understand the phrase, but my knee-jerk reaction is that it imputes substantiveness as inherently in the due process clause, rather than being a meaning imported into it by judicial interpretation. This is meant to be highly critical, mind you; more just a matter of intellectual curiosity.

        • This is a real phrase used by real constitutional scholars and judges, James. Its most famous recent invocation was in Lawrence v. Texas, 539 U.S. 558 (2003):

          There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U.S. 479 (1965).

          Its limits are described in Washington v. Glucksberg 521 U.S. 702 (1997):

          Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” [Moore, 431 U. S.], at 503 (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,” Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937). Second, we have required in substantive due process cases a “careful description” of the asserted fundamental liberty interest. [Reno v. Flores, 507 U.S. 292,] 302; Collins [v. Harker Heights, 503 U.S. 115,] 125; Cruzan [v. Director, Missouri Dept. of Health, 497 U.S.,] 277-278. Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking,” Collins, supra, at 125, that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment “forbids the government to infringe . . . `fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” 507 U. S., at 302.

          …So yeah, it’s a thing.

          • I took James’s question to refer to coupling (or tripling?) the three terms–“substantive,” “due process,” and “clause”–into a single phrase. I understood his question to be do scholars actually say “substantive due process clause” or do they say “substantive due process” and / or “due process clause.”

          • Pierre is correct. I may have expressed myself badly in my first comment, but my question was actually as he phrased it.

            (I am certainly not quibbling with the concept of substantive due process–at least not it’s existence as a legal concept.)

  5. I would hardly call the 13th, 14th and 15th Amendments a remade Constitution. Our hoary old Constitution provided for amendments more conveniently than a rewriting mechanism and that’s the way the water’s gone over the dike when it floods.

    Our Constitution is now irrelevant to our problems today. Pull it apart, empanel a new Constitutional Convention and write something worthy of the Declaration of Independence.

    • A nice sentiment, Blaise, and would that such a thing were possible. Calling the convention in the first place calls the legitimacy of the existing system of government into nearly fatal question, and the hyper-pluralistic gridlock that would almost certainly either paralyze the convention into inaction or taint the result with partisanship would make the resulting new constitution unratifiable. Can’t you just see Sean Hannity asking Juan Williams, “So does this new Constitution give an advantage to Republicans or Demcrats?”

      • Burt is exactly right of course. The constitution as written or interpreted is fine. A far more pressing problem is the crisis of legitimacy. Ie, the idea that the political authority can make some policy and and can expect that it will be carried out. The psychological/spiritual alienation and antagonism between Team Red and Team Blue is very real, to the point where they threaten our commonality as Americans.

        There are no changes to the Constitution that fixes that. It’s a matter of spiritual renewal. That will sound like a religious thing for some people, but it’s actually a little more prosaic than that. It’s where people gain the strength and awareness to say, “I, as lib, who has created so much damage to our polity, don’t have to accept the future as merely the continuation of the past. In between my circumstances and my actions is the freedom to choose and I will use that freedom to choose better than I have chosen before.”

        The Ginsburg thing is kind of odd. Justice Ginsburg is entitled to have an interest in foreign constitutions just as Jim Smith from Toledo has an interest in playing foosball. But she has an obligation to enforce the US Constitution. The sort of comments that Mrs Ginsburg made don’t directly cause a crisis of legitimacy, but they don’t help matters either. Especially since it’s not completely clear from those comments that she has sorted out the difference between her obligations and her interests in her own mind.

        • the people who disgust me are the ones who don’t think that all men are created equal, and ought to be treated as such, along with all the dignity that entails.
          They’re behind team red, but they aren’t team red.

    • The Constitution was remade by more than the formal amendments. The balance of power was forever tipped decidedly in favor of national government, which proved it would fight a bloody war for its self preservation. States would clamor for states right ever after.

      • Somehow I don’t think the North and South would have gone to blows over, say, an individual right to privacy.

        If there was a problem with federalism as a founding principle, it was that they kicked one bit, fat, fatal dealbreaker down the road. If they wanted a federalist government that would stand, they had to resolve slavery from the beginning.

        • It really is a miracle that the union survived. It’s a testament to the Founders’ judgment on that ghastly compromise: they knew the principles underlying the nation were right and possibly strong enough to hold up against the terrible contradictions slavery presented. Against all odds, they were right.

          • I’m not so sure they were right, Tim.

            I don’t think many (if not most) of the founders would have liked the increase in federal power, post Civil War. Perhaps they would have agreed it was necessary.

          • I agree with Patrick, and I think the idea that the Civil War proved them right is odd (even if it’s one you hear all the time from grade school history teachers and politicians). I mean, the union didn’t survive: it split in two, and it took not the Constitution or principles, but almost 4 bloody years of brutal war to keep it together. And when those 4 bloody years were over, the Constitution, and many of its principles, had changed a great deal, as you yourself note. It looks to me like it was the compromise and can-kicking, principles or no, that damn near cost the union between the states its life, rather.

          • a house divided shall fall. and so the south would have, even without war. They simply weren’t that competent.

          • It’s a testament to the Founders’ judgment on that ghastly compromise: they knew the principles underlying the nation were right and possibly strong enough to hold up against the terrible contradictions slavery presented. Against all odds, they were right.

            If the founders were right “[a]gainst all odds,” then their reasoning must have been faulty to take the gamble in the first place.

          • @Pierre,

            Heh. I get your point (it made me chuckle), but keep in mind that sometimes your choices are between two things that have really lousy odds. I like to ask my students, “if you’re trapped on the 40th floor of a burning building, should you wait to see if the firemen can rescue you, or should you jump?” The founders potentially saw this as a somewhat analogous choice: “Well, the odds of remaining unified with this new constitution thingy are about 1 in 10,000, but without it the odds are about 1 in a million.”

          • Yeah, I don’t see how kicking the can down the road until it turns into a bloody war, followed by a substantial revision (more for good than ill, IMHO) of the political arrangements, really validates the vision behind the original arrangements. The arrangements were so unstable that they led to war and then got scrapped. If this is validation, what the hell does discrediting look like?

            Frankly, your post and some of your subsequent comments sound like Political Ancestor Worship.

          • Frankly, your post and some of your subsequent comments sound like Political Ancestor Worship.

            No, just political reality. The “united” states are facing internal insurrections and actual threats of war between states, while they are surrounded on all sides by the world’s three great powers.

            Go back in time–what better solution do you propose that can actually create more unity than they managed to come up with?

            I think you’re comparing a real-world (highly imperfect) solution to some unspecified hypothetical solution that surely would have eliminated the problem of slavery and have received the support of enough states to become effective. I’m going to the fridge to get a beer while you think about it.

          • James & Thoreau,

            I’m not sure there’s a conflict here. Something can be both “nearly the best that could have been managed under the circumstances” and “not good.”

            It makes sense to give the people who managed under difficult circumstances due credit, but it also is imperative to not call something more successful than it actually was/is. But to the extent we go from giving credit to engaging Political Ancestor Worship, we have a tendency to let that worship influence our assessment of what those who managed well under difficult circumstances actually created (and bequeathed us). And it is the case that we engage in a great deal of undue Political Ancestor Worship in this country, and that our assessment of the political product of that generation is influenced accordingly.

  6. Well, there is the small matter of Ginsburg being essentially correct. I mean, the US constitution is a wonderful symbol of republican government, but it’s wholly unsatisfactory and insufficient for a modern state.

    Plus, in any country without heavy amounts of regionalism, a lot of it is kind of pointless. For example, the Senate. 🙂

    Also, thankfully, the reason why we don’t need amendments for such basic things as a minimum wage and Medicare is the vast majority of society has realized the Constitution isn’t a suicide pact.

    • Your country wont fall apart just because you abolish the minimum wage. I’m betting that abolisihing it will actually do the opposite.

      • Ditto, Murali, at least his first sentence. Even if we assume Jesse’s worst fears about the minimum wage, there’s a vast difference between a whole bunch more people being poor (with a widening disparity in wealth) and a country dying. Unless his assumption is that the lack of a minimum wage would cause outright revolution. And there I think he has the heavy lifting to do to support such a claim.

        • Wealth disparity typically leads to government disparity, when the people on the poor end of the stick are poor enough.

          Granted, it takes a lot of contributing factors here. Most of those contributing factors correlate highly with wealth disparity, though.

          I don’t think we’re anywhere near that. Hell, India trucks along and they have much more massive wealth disparity than we do. I don’t think abolishing the minimum wage would do a thing, though.

          If you offered a job for less than the current minimum wage, you’d have a public relations nightmare. Things don’t have to be illegal to be prevented.

    • “Plus, in any country without heavy amounts of regionalism, a lot of it is kind of pointless. For example, the Senate.”

      Two thoughts on this.

      The original regionalism was between the heavily agrarian (and obviously, slave-holding) South, and the increasingly urban/manufacturing North. Today, much of the agriculture vs non-agriculture economic split has been pushed into the individual states. Consider the red/blue maps done at a county level; in a majority of the states, they show blue urban counties surrounded by large swaths of red rural counties. On the 2008 presidential maps, there are a lot of the traditionally red states where one can easily pick out the main (blue) cities. Given population trends, this is working against the Republicans: “red” states are simply those where the urban areas don’t outweigh the rural areas by enough yet.

      Regionalism on a larger scale isn’t dead, though. I’m a long-term (looking 25-50 years out) energy policy nut (nut in more than one sense). Given the goals of both keeping the lights on in the US and greatly reducing the use of coal and nukes, it is inevitable that at some point the region of the country east of the Great Plains will have to say “Fish you” to the region west of the Plains, and exploit the western renewable resources on a massive scale, almost certainly to the detriment of the West’s own electricity supplies. The East has the votes to do this in law, and almost enough votes to do so by constitutional amendment. Where I’m a serious nut is that I don’t think the West will take kindly to it. Certainly unkindly enough to have extremists attempting to blow up transmission lines; possibly unkindly enough to attempt to leave the Union.

  7. “The Constitution used to be formally amended more frequently than it is today.”

    Not really, the amendments tend to come spurts and skip generations; 61 years between 12 and 13, 43 years between 15 and 16; we’re currently in only the 4th longest period since the last amendment

  8. The reason the constitution did not deal with positive rights was to preserve slavery. Slave owners did not want a federal govt freeing their slaves so they wanted states stronger, feds weaker and no universal human rights. The state would decide who has what rights.

    This is harsh truth ignored by so many who think stronger states and a weaker fed mean more liberty. It is not the fed govt that is the great destroyer of liberty in the US, it is the state govts that have done it over and over again. A better Constitution would explicitly enumerate the rights each individual has and provide a clear and strong mechanism for maintaining those rights.

    • That doesn’t follow. States would have denied slaves positive rights same as they denied them natural rights.

      • If it does not follow in logic does it follow in fact? Historically, has the federal government dtended to preserve and protect civil rights which have been denied by the states or have the states fashioned themselves as a refuge from federal oppression?

    • The reason the constitution did not deal with positive rights was to preserve slavery

      That’s really too simplistic. None of the states wanted to give up any more authority than necessary. New York–a free state–was a particularly troublesome case. It didn’t ratify until after enough states had ratified to make the Constitution effective, but it was a big block between the New England and the Mid-Atlantic/Southern states, with the most important harbor north of Chesapeake Bay. The country simply might not have worked had it not joined, and its political leaders were loathe to give up their sovereignty. Hence we got the Federalist Papers, which were not targeted at the states collectively, but precisely targeted toward swaying New York. And of course Rhode Island–another free state–refused to even attend the convention and didn’t ratify until after the Constitution was effective, elections had been held and the new government was already in session.

  9. I think the Supremacy Clause has been the way out of amending the Constitution lately.
    The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights are both enforceable as law.
    And it happened without all the messiness that comes with an amendment.

  10. I think its important to point out that Ginsburg was talking in the context of the Arab Spring. A country with substantial political power held by, say, the Muslim Brotherhood would certainly benefit from a constitution that is more direct on minority rights and executive power than ours is. In fact, this seems to me one of the clearest lessons of our adventure in Iraq.

  11. The US Constitution looks pretty impressive when you consider that it’s lasted nearly 250 years, and looks set to last a good many more, and during that time has only been modified through the procedures which it contains. Obviously it had massive initial problems – the existence of slavery, limits on the franchise – but on the flip side, it’s fairly impressive that its structure enabled correction of those major problems without requiring the creation of a whole new document.

    Most of the world’s other republics have gone through much longer and more convoluted processes. France has gone through two monarchies, two empires and is on its fifth republic since the Revolution. Many Latin American countries are still changing their constitutions regularly.

    I agree with the principle of positive rights like “right to food” and “right to health care”, in the sense that I think it’s valuable to recognize that every human being does have a moral right to those things, and that there are serious problems when we (“we” meaning the entire world), as a wealthy global society, fail to provide them. However, putting them in constitutions can be problematic, because such provisions are not overly enforceable and often the countries that go in for them most strongly (left-leaning, well-meaning, low- or middle-income countries) currently lack the financial capability to provide the rights they guarantee. Which makes the constitution more a statement of values, or platitudes, rather than the foundation for a code of laws.

    I think “right to unionize and/or strike” does count as a negative right and is a valuable thing to include in constitutions these day, though. It’s a negative right because government is generally the one who is called in to legislatively end a strike (in developed nations) or end it through violence (in some less developed ones).

    I would think “artistic freedom” falls under “freedom of expression”.

    • The U.S. Constitution guarantees a right to food. At least as modern jurisprudence goes, the government has no power to prevent anyone from eating food. It is a natural, moral right implicitly recognized here (at least, I don’t know that it’s ever been challenged).

      If what you meant was a duty on the part of some people to provide food to other people, then no, thank God, that does not exist in our constitution.

    • How much of this is due to the constitution of the American people? The US Constitution has “survived” because it it so flexible, but how much change does it take before we consider what we have to be distinct from what was given us? Today’s constitution recognizes more new voters than the original recocgnized total voters, should it still be considered a single document?

  12. I tend to dislike rights language period, but then I also belief that the idea of positive rights refers to something true. Anyhow, what I would look for in a constitution first and foremost is the clear establishment and definition of the limits of government authority.

    • One day it would be interesting to discuss the positive rights issue, but for now, I absolutely agree with your latter statement.

  13. “…even before the progressive and liberal legal revolutions of the 20th century, made it almost impossible to know exactly what would be required by that new constitution, rededicated to the proposition that all men are created equal. ”

    Can you really argue that progressives and liberals introduced doctrinal Constitutional complexity? After all it was the lochner era conservatives who found a Constitutional right to freedom of contract and invented Substantive Due process.

    • I should be more clear that there is much less a problem in “finding” rights than in finding government power. The Constitution is founded in a philosophy of negative liberty and restricted government power. After the Civil War, the federal government gained more authority and responsibility to guarantee that balance at the state level.

      I do take your point. But Lochner fit the design of our post Civil War constitutional system where the New Deal decisions and their progeny remake it.

  14. Chrysler designated the 1929 Desoto as the “K” series and early advertising featured the name “Conqueror” along with a Latin motto, Multum pro Parvo (“much for little”). Introduced to the public on August 4th this mid-priced six-cylinder car was intended to plug the gap between the fledging low-priced four-cylinder Plymouth and premium namesake Chryslers.

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