Faculty Q&A: Mila Versteeg on the Declining Influence of the U.S. Constitution

The U.S. Constitution is not nearly as strong of an influence on other countries' constitutions as it was in the past, according to a forthcoming article co-authored by University of Virginia School of Law professor Mila Versteeg.

Versteeg, who co-wrote the paper, "The Declining Influence of the United States Constitution," with Washington University in St. Louis law professor David Law, recently discussed her research.

In your new article, yo​u suggest that other countries have grown increasingly less likely to model the rights-related provisions or basic structural provisions of their constitutions on those found in the U.S. Constitution. Why?

The most likely reason for the declining appeal of the U.S. Constitution lies in the Constitution itself. We find that the U.S. Constitution is increasingly out of step with a global constitutional consensus on human rights. There are a number of features that make the U.S. Constitution atypical:

• The U.S. Constitution contains a relatively small number of enumerated rights. While other constitutions around the world have gradually become more rights-inclusive, the U.S Constitution has not added any rights at all over the last century.
   
• Among the relatively few rights that the U.S. Constitution does contain are some provisions that are rare at the global level. Examples of such provisions include the establishment clause (adopted by about 30 percent of the world's constitutions) and the right to bear arms (adopted by less than 2 percent of the world's constitutions today).
   
• The U.S. Constitution omits a number of generic building blocks of global rights constitutionalism. Women's rights, for example, are found in 90 percent of the world's constitutions but do not appear in the U.S. Constitution. The same is true for physical-needs rights, such as the right to social security, the right to health care and the right to food, which appear in some form in roughly 80 percent of the world's constitutions.

What are the implications of this trend?

This trend suggests that the U.S. is losing influence in the constitutional realm. But it also suggests the possibility that the U.S. may be losing some of its soft power" — namely, its power to influence through attraction rather than coercion.

If other countries are no longer looking to the U.S. Constitution for inspiration, where are they looking instead?

It turns out that this is not an easy question to answer empirically. In earlier work (The Evolution and Ideology of Global Constitutionalism," California Law Review), we find that the world's constitutions divide into two distinct ideological families, one libertarian in character and with an emphasis on negative liberty rights and one more statist in character, with an emphasis on positive rights and duties. In this paper, we find some evidence that the Canadian Constitution might have been a leading model for the former group of constitutions. By contrast, we do not find evidence that any of the most prominent international human rights instruments are leading the way global constitutionalism. Nor do we find evidence of widespread imitation of such prominent constitutions as those of South Africa, Germany or India.

Were you surprised to find that the U.S. Constitution lacks the influence it once enjoyed?

It has been widely documented that the U.S. Constitution, over the course of its long history, has had considerable impact on constitutions abroad. In particular, Latin American constitutions in the 19th century often copied extensively, and at times verbatim, from the U.S. Constitution. The institution of judicial review and the very idea of written constitutionalism, which are now commonplace around the world, have often been attributed to the United States.

At the same time, there have been recent suggestions that American constitutionalism is losing some of its global appeal, which have received a good deal of attention thanks to recent front-page discussion in The New York Times of the declining global influence of the U.S. Supreme Court. Even though we are the first to systematically examine the global influence of the U.S. Constitution itself on the basis of comprehensive worldwide empirical data, we were not all that surprised to find that this was indeed the case.

What are some of the paper's other conclusions?

We find some evidence that the Canadian Charter of Rights and Freedoms is influential, but this influence appears to be heavily focused among common law countries. In fact, we suggest that the Canadian Constitution may epitomize a new Commonwealth model of rights constitutionalism that emphasizes negative liberty rights.

On the other hand, we find little evidence that global constitutionalism is shaped by either international or regional human rights instruments. Interestingly, we also found that the constitutions of autocratic states are most likely than those of democratic states to contain echoes of the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights.

What led to your interest in this topic?

This article is part of a larger scholarly agenda on the origins and consequences of global rights constitutionalism. Central to this agenda is a new dataset that contains quantitative information on the rights content of the written constitutions of no less than 188 countries, for the period 1946-2006. With this dataset, I am exploring the evolution of global constitutionalism, as well as why certain countries adopt certain rights. Earlier findings show that constitutions are remarkably standardized documents and that constitution drafters are strongly influenced by the constitutional choices of foreign states. An obvious question, in light of these findings, was the role of the venerable U.S. Constitution in shaping the content of global rights constitutionalism. That is what motivated this paper.

What are you working on next?

The next article, titled Sham Constitutions," will explore the gap between formal constitutional rights, on the one hand, and actual human rights practices, on the other. Scholars have long observed that de jure constitutional promises are not the same as the facto rights. What they have not done, however, is try to measure the gap and identify which constitutions fail to deliver on their promises. In this article, we will identify the world's worst sham constitutions," in the sense of constitutions that do not live up to reality. Our goal is to rank those countries that are the worst underperformers on their constitutional pledges (a constitutional hall of shame") as well as those that are the best over-performers (a hall of fame").