INFLUENCE OF THE AMERICAN CONSTITUTION ABROAD (Update)

As Americans began their third century living under the constitutional system ordained by the Philadelphia Constitution, much of the world was undergoing constitutional transformation. The collapse of communism spawned constitutional reform in many parts of the former Soviet empire. The end of apartheid brought a new constitution to South Africa, while in many parts of Africa, Latin America, and elsewhere there were stirrings of democracy and constitutional change.

The Framers of the U.S. Constitution would have appreciated and understood these changes. From the beginning of the modern constitutional era, the American model has been a centerpiece in changing the face of constitutionalism around the world. The virginia declaration of rights (1776) profoundly influenced France's Declaration of Rights of Man and the Citizen (1789), and the early American state constitutions were invoked in the National Assembly's 1791 debates on the first French Constitution.

Nineteenth-century reformers looked to American precedents. At the Frankfurt National Assembly in 1849, German delegates spoke of the "instructive example of America." In Latin America, Juan Bautista Alberdi, father of Argentina's 1853 Constitution, drew heavily from American ideas, including the Constitution of California, in hopes that Argentina might replicate the economic success of the United States.

The most famous examples of direct American constitutional influence in the twentieth century are drawn, paradoxically, from colonialism and military conquest. The constitutional arrangements designed in the 1930s to carry the Philippines to independence closely tracked the American system. After world war ii, the military government of General Douglas MacArthur had a direct hand in the drafting of a new constitution for Japan, while the assembly that drafted Germany's Basic Law of 1949 (elected, like the delegates of 1787, by the constituent polities) was constrained to produce a constitution that was federal, republican, democratic, and protective of fundamental rights.

If one traces the relative influence of the American Constitution over the past two centuries and beyond, one finds that influence to have been most immediate and obvious in the early years. That was the period, after all, when there were few competing constitutional models to be had (for the Poles of 1791, for example). As time passed, however, and more countries entered the modern age of constitution-making, the constitutional path became wider and more varied. Especially in the twentieth century, alternative assumptions about the nature of state and society began to feature more conspicuously in constitution-making; for example, positive rights were prominent in such constitutions as those of Mexico in 1917 and Germany in 1919.

Today constitution-making is above all an eclectic exercise. Drafters borrow freely from other countries, the United States but one among them. In post-communist Central and Eastern Europe, for example, one finds the powerful pull of Western European models, partly because of the hope of new democracies to join regional arrangements such as the North Atlantic Treaty Organization (NATO) and the European Union. International and regional norms, such as United Nations conventions, the European Convention on Human Rights, and the expectations of the Organization on Security and Cooperation in Europe, are also influential.

No matter how attractive its broad principles, the American constitutional experience has obvious limitations as a model for foreign constitution-makers. The U.S. Constitution was written in the eighteenth century, long before the age of the modern administrative state. Moreover, it is by design an incomplete document, in that one cannot understand the American constitutional system without knowing about the state constitutions. Also, a full picture of American constitutionalism requires dealing with the extensive judicial gloss accumulated over the years. With the constitutions of most countries being of relatively recent origin, models such as those of Germany (1949) and France (1958) become especially attractive to a constitutional drafter.

Many factors bear on the relative influence of the American Constitution abroad. Among them are the forces of history, culture, and tradition. For example, the felt need to reinforce a sense of national identity in a country with significant minorities may lead to rejection of federalism in favor of a unitary state. Similarly, the identification of a nation with a historically dominant religion, as in Eastern Europe, often leads constitution-makers to eschew separation of church and state.

Other factors are at work. Countries with a civil law system are more likely to produce long, detailed constitutions, while common law countries may be more inclined to allow constitutional law's details to take shape in the courts. Countries with a recent history of one-party or military rule may be drawn to code-like constitutions in an effort to cure the mistakes of the past in the constitution's text. The American example of treating the constitution as the place where fundamental principles are spelled out is often lost when drafters, as in Brazil in 1988, lose sight of the distinction between a constitution and a code of laws.

The enduring influence of the American Constitution does not turn, however, on whether the text of a country's constitution may be thought to resemble in its details that of the United States. The American constitutional experience remains even today the ultimate example of success in self-government. It still offers a stirring example of balancing democracy and accountable government against constitutional limitations.

Among America's most pervasive and influential exports is judicial review. The example set by Chief Justice john marshall in marbury v. madison (1803) has spread around the world. After Canada's adoption in 1982 of the Charter of Rights and Freedoms, that country's Supreme Court said that to look to a constitution's "larger objects" comports with the "classical principles of American constitutional construction" articulated by Marshall in mcculloch v. maryland (1819). One finds conspicuous examples of decisions of the U.S. Supreme Court being relied on even in countries of strikingly different cultural traditions, such as India. Justice william j. brennan, jr. , may have been on the losing side in the Court's capital punishment cases, but his opinions have had powerful influence in high court decisions of such countries as South Africa and Zimbabwe.

On the surface a particular country's constitutional arrangements may seem to bear little resemblance to those of the United States. Where post-communist countries in Central and Eastern Europe, for example, opt for judicial review, they inevitably look to a European model, especially to Germany's Constitutional Court. Yet it is through such intermediate models as that of Germany that American ideas, such as the principle of Marbury, become domesticated. The American Constitution's influence is nonetheless important when it takes a form shaped by local tastes. In the family tree of modern world constitutionalism, America's experience remains a respected and influential figure.

A. E. Dick Howard
(2000)

Bibliography

Billias, George Athan, ed. 1990 American Constitutionalism Abroad: Selected Essays in Comparative Constitutional History. New York: Greenwood Press.

Henkin, Louis and Rosenthal, Albert J., eds. 1989 Constitutionalism and Rights: The Influence of the United States Constitution Abroad. New York: Columbia University Press.

Howard, A.E. Dick, ed. 1993 Constitution Making in Eastern Europe. Washington, D.C.: Woodrow Wilson Center Press.

Lester, Anthony 1988 The Overseas Trade in the American Bill of Rights. Columbia Law Review 88:541–561.

Ludwikowski, Rett R. 1996 Constitution-Making in the Region of Former Soviet Dominance. Durham N.C.: Duke University Press.

Perry, Barbara A. 1992 Constitutional Johnny Appleseeds: American Consultants and the Drafting of Foreign Constitutions. Albany Law Review 55:767–791.