Crafting constitutions that last
University of Chicago Law School professor Tom Ginsburg discusses current trends in national constitutions—and what factors make them classic.
When it comes to drafting a constitution that endures, Professor Tom Ginsburg of the University of Chicago Law School has some advice for constitutional designers: the more flexible, inclusive, and detailed, the better.
Those were among the research findings Ginsburg presented at a June 2014 alumni event held at Willheim Müller, a law firm in Vienna, Austria. Sponsored by the University of Chicago Law School and Booth School of Business, the luncheon and lecture were also an opportunity to promote the Law School’s LLM degree.
In his introductory remarks, the firm’s founding partner Johannes Willheim, a 2004 alumnus of the LLM program, said the school had “changed the way I thought” as a lawyer. Today the Law School is leaving its footprint on the international legal community, particularly in Europe, he said.
“I think you, Professor Ginsburg, and your peers would be proud to know that one of the biggest pending international arbitration cases is handled by three lead counsels from different parts of the world—and all of them are graduates from the University of Chicago,” Willheim said.
‘Fashion and trends’ in constitutional design
During his lecture, titled “Constitutions as Products,” Ginsburg presented an overview of a research project that looked at all national constitutions written since 1789—more than 900 in total.
The five-year project has resulted in the creation of the first-ever internet database—available at www.constituteproject.org—which allows both the public and constitutional designers to read and analyze all the world’s constitutions.
“It is a useful device for citizens to be able to see what else is out there and it is also being used increasingly in constitutional design situations,” most recently in South Sudan and Libya, said Ginsburg, the Law School’s Leo Spitz Professor of International Law.
In his own research and that of his colleagues, Ginsburg found “fashion and trends in these documents, just as there would be with clothes or hairstyles.” For example, since the 1950s, more constitutions name independent regulatory institutions, such as an anti-corruption or human rights commissions. The average number of rights also has increased, “which is no surprise given that we are in the era of human rights.”
Freedom of expression has always been very popular in constitutions, whereas the right to education became popular in the late 19th century and right to health care rose in popularity after World War II. The right to bear arms has gradually lost popularity, noted Ginsburg, which coincides with the trend that the United States Constitution in being used less often as a constitutional model.
References to “God” in constitutions have risen and fallen over time. “It fell a lot in the 20th century; now God is making a huge comeback,” he said.
Factors that make a constitution endure
Constitutions do not typically last for very long—on average about 19 years. This led Ginsburg and his fellow researchers to try to determine if there is anything that can be included in the text that increases the likelihood that a constitution will endure.
Ginsburg found that it helps if a constitution provides flexibility, with easy ways to make changes through formal amendments or judicial interpretations. Also, if the drafting process is inclusive—for example, if the public is involved through a referendum—it is more likely that citizens will protect the constitution if it is under threat. Lastly, it is better if the document is more detailed and specific, Ginsburg said.
Considering these factors, the U.S. Constitution should not have endured as long as it has, Ginsburg noted. “The American Constitution is not very flexible; it is not very inclusive—it was drafted by a small group of white men, half of whom were slave holders—and it is not very detailed, and yet it has managed to last quite a while.”