Finding what makes constitutions endure
By Sarah Galer
Photo by Jason Smith
When the government of Kenya wanted outside advice this year on drafts of the country’s new constitution, one of their consultants was University of Chicago Law School professor Tom Ginsburg, one of the world’s foremost experts on how to write an enduring constitution.
In a world where an average of 10 new constitutions are created each year, Kenya is not alone in its drafting struggles. In fact, Ginsburg’s Comparative Constitutions Project, which he co-directs with Zachary Elkins, a University of Texas political scientist, has found more than 900 national constitutions enacted since 1789. The researchers painstakingly coded that material into an extensive dataset, which is proving invaluable, both to scholars and to countries like Kenya that need practical help with their legal blueprints.
Advising those countries is a weighty business, Ginsburg says, because of the real risk that their constitutions might fail.
“Most constitutions die at a very young age and are replaced often,” Ginsburg says. “They are, it turns out, very fragile things.”
Another surprising finding of the project is that although the United States has the world’s most durable constitution, the American document does not offer other countries a reliable model for success. In fact, the work suggests that constitutions emulating more recent efforts from Mexico or India may stand the best chance of surviving.
On average, most constitutions survive no longer than a well-tended house cat, Ginsburg’s team found. Few approach the staying power of the U.S. Constitution, which has endured with its core intact since 1789. The island of Hispanola has seen a near-constant flurry of constitutions, with its two nations of the Dominican Republic and Haiti accounting for nearly 7 percent of all written constitutions since 1789.
Thomas Jefferson might be pleased to learn that the average life expectancy of a constitution is 19 years—a figure in line with Jefferson’s argument that each generation should formulate its laws anew.
Americans tend to think the U.S. Constitution has survived because it consists of strong, broad principles, with few details on how government should be run. Yet Ginsburg and Elkins discovered that for most countries, such vagueness is actually a weakness.
“What we found is that the more detailed constitutions are those that last longer, quite surprisingly,” says Ginsburg, who co-authored The Endurance of National Constitutions with Elkins and James Melton. Their work found flexibility, inclusiveness, and detail to be most essential for longevity.
Successful models include the precise Mexican constitution of 1917, which has survived through periods of dictatorship and democracy, Ginsburg notes. Another durable example is the Indian constitution of 1950, the longest in the world at 117,000 words—25 times the length of the U.S. Constitution.
“The reason why constitutions with a lot of specificity succeed, by our theory, has to do with the level of investment that goes into detailing decisions regarding thorny issues,” explains Elkins. “Everybody can agree to a set of principles—those are simple constitutions to write and ratify. What seems to matter for endurance is doing the hard work of reaching consensus on the fine print. The hard work that goes into those documents pays off.”
Ginsburg and Elkins, who originally started the project to aid their own research, quickly realized the value of the comprehensive dataset they held. They worked with the United States Institute of Peace to create the Constitutionmaking.org website, to provide constitutional designers worldwide with systematic information on design options.
It offers an evidence-based guide for countries crafting a constitution from scratch, as so many inevitably do. Such countries would find, for example, that successful constitutions often include a basic process to produce public goods, a mechanism for participation of the citizenry, and some form of independent oversight of the government.
“Ginsburg’s Comparative Constitutions Project is a path-breaking analysis of the many variations in constitutions around the world,” says Geoffrey Stone, a leading constitutional law scholar and the Edward H. Levi Distinguished Service Professor at the Law School. “It will shed important, new light on how different nations define their most fundamental values and on both the commonality and differences across cultures.”
Ginsburg’s constitutional research has led him to track some countries’ current events, seeking opportunities to help others benefit from his volume of data. He confesses to an unusual interest in the health of the long-serving King of Thailand, whose death could present that country with a constitutional crisis.
“He has been king for 60-something years and has been a stabilizing force in a period of incredible change,” says Ginsburg, who believes that Thailand’s transition from a monarchy to a republic is a distinct possibility after the king’s passing. “They have had something like 18 constitutions and more than 20 coup d’états in that period. And yet, he has managed to keep the country together despite political divisions. However, there is at least some risk that these latent struggles could really break open when he dies.”
Ginsburg first developed an interest in constitutions through his work at the Asia Foundation in the early 1990s, when he was sent to Mongolia as a young program officer to organize assistance in writing a new constitution.
Twenty years later, it was a natural fit when the Rome-based International Development Law Organization approached Ginsburg’s group to convene a group of American constitutional scholars to provide feedback throughout the drafting process for Kenya’s constitution.
Kenya, once a poster child for success in the developing world, had in recent years descended into tribal infighting and bloodshed. The new constitution was intended as a stabilizing influence among rival groups.
From December 2009 through March 2010, Ginsburg and his colleagues, including UChicago assistant professors Rosalind Dixon and Aziz Huq, reviewed three rounds of drafts and offered suggestions. They argued against the Kenyans’ original intention to divide power between a president and prime minister. Such a structure could enshrine existing political divisions and prevent the country from taking action on pressing problems. The drafters ultimately chose a pure presidential model.
On Aug. 4, after years of unsuccessful attempts at change, Kenya’s citizens ratified the new constitution.
“Perhaps this will mark a new chapter in Kenya’s history, one of constrained government and effective protection of rights. Constitutional adoptions are indeed moments of hope for renewal,” Ginsburg wrote on the Constitutionmaking.org blog following the successful vote. “The tough work, of course, will only occur when this constitution comes into operation and elections are held, but there is much to be optimistic about, at least on paper.”