The US Constitution in Free Fall-- Interview with Experts on International Constitutions David Law and Mila Versteeg

Broadcast 2/8/2012 at 10:56 AM EST (44 Listens, 39 Downloads, 837 Itunes)
The Rob Kall Bottom Up Radio Show Podcast

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This interview is also cited in my article: Is The USA The Only Nation in the World With Corporate Personhood?

Guests on this show:

David Law, Washington University Law in St. Louis, Adjunct Political Sci in 

Comparative Law training from Oxford. 

Mila  Versteeg associate professor university of Virginia  school of Law 

PhD at Oxford-- Global constitutionalism and why different countries make commitments to different rights

Very Raw, unedited Interview Notes. 

Looked at 186 countries over time.

read and quantified every constitution that has been written since 1946.

What were the biggest conclusions that you reached. 

After quantifying constitutions, you can look at degree they are similar. 

Prior to 1980s similarity to US is high. Once  you get to the 90's the similarity is much less.

They were looking at the rights areas. 

Once we realized the US was not the main model we looked at other constitutions. 

Justice Ginsberg said we sh ould look to Canada or S. Africa or universal convention on human rights. 

Also looked at Germany and India-- two other countries cited as international

UN 

European Convention on Human rights, 

For most documents we didn't find strong patterns of similarities. 

There's a kind of constitutional esperanto that's predictable in 80% of constitutions. 

The one country that seems to have the most influence is Canada. 

Canada's influence is limited to the commonwealth countries. 

latin America and Western Europe, you don't see constitutions like Canada.

Germany and India-- similarities to those two countries are declining. 

It's possible that S. Africa 

Regional and international instruments. 

Universal declaration of Human rights has been an important model. 

We're not actually saying that countries need to adopt a generic bill of rights. 

We're not in the business of telling what kind of constitutions. 

One of the general trends we find in our research:

freedom of religion, protection of property rights, freedom of expression. 

The world is divided into two camps--- divided into negative liberty rights which focus on judicial processes , protecting indivs from the state and then countries that develop social welfare rights along lines of common law---

Soviet republics also include social welfare rights. 

Provisions that are rare found in the US constitution and not found in others-- right to bear arms. 

Latin America used to adopt US but they've turned away from it. 

Another US right is separation of church and state. That is not popular on a global level. 

Women's rights go from very rare right after WW2 to 85% of constitutions. 

Effect of US Supreme Court: 

has been a turnoff for courts in other countries. Whether it's been a turnoff for constitutional drafters in other countries. 

IN this country originalism is a big idea-- construe constitution in light of how framers understood. 

Australie is one of the few other countries pre-occupied with originalism. 

Pursuing approaches that root American Constitution in the late 18th century has been a turnoff. 

That was an agrarian society states clustered along the eastern seaboard, slavery.

You can have judicial amendment of the constitution or formal amendment. The US Constitution is one of the hardest or THE hardest to amend. People talk about i t as a sacred text. When you put it up on a pedestal it is even harder to amend. If you are going to have that kind of constitutional system you are going to have the US supreme court patching it up, updating, plugging the holes. 

You have to choose the update the documents or allow the judges to update the documents for you. 

Most countries replace their constitution every 19 years. 

How could the framers even conceptualize the idea of a GPS on a car?

The fact that the judges keep the system fresh, may make it more attractive. 

Thomas Jefferson suggested that the constitutions should be replaced every 19 years. 

Most nations update or replace their constitution every 19 years.

Tom Ginsberg found that changes that are sufficiently major to count as revisions

average that out as 19 years"..

Most countries don't depend upon their court because they are working with constitutions that are less than 20 years old. 

in other countries  you have a recipe for less reliance on case law and more reliance on the new constitution or to other countries. Foreign courts look a lot more to foreign law than the US supreme court. 

There is a conversation among constitutional courts. And the US Supreme Court is less of a participant than other courts. This is something that rubs a lot of judges in other countries the wrong way. There is definitely a global conversation among courts. 

Lower court in Uganda ruling on Law against Gays, cited a court ruling in Canada.

in Taiwan, which transitioned from Autocracy to democracy in the late 1980's, it is standard procedure to ask their clerks to do research on foreign law. 

If that's done in the US-- O'connor, Ginsberg-- death threats, impeachment 

Did interviews with African Supreme Court Justices-- get more independence and legitimacy by citing US. 

In Taiwan it is more comfortable to cite foreign law to say this is consistent with what Germans or Americans do. 

Could the US learn from the other constitutions? 

Could change the text so it represents reality-- supreme court jurisprudence, voting rights act-- to make it reflect our own law--

From other countries--- before we even get to that stage we need to get to the point that it's worth looking at other countries. 

it's hard to have a healthy up to date constitution that serves you well if you fetishize it. 

Right now we're "..

The big breakthroughs the US constitution made remain foundational. But other countries have added to that-- 

The idea of the rule of law, the idea of constitutionalism--- idea of having judicial review, that we can make ourselves, our government better. When it comes down to how that constitution should look, we're way behind the times. 

The original constitution had no rights at all. The bill of rights had to be passed later. 

Negative rights that protect you from the govt, and that has the judiciary step in when the govt wants to do something to you. 

Doesn't talk about right to education, clean environment, workers right to organize, groups have right to equal treatments. 

We don't have a constitutional right that all people have access to the marketplace of ideas, don't have the right to talk, to participate in the debate-- corporations have right to drown out". Other countries don't have that. 

We haven't had a national conversation about which of those rights should be in the constitution. 

Constitutional Convention:

had a constitutional convention in 1787. The right procedures were not followed. The convention went outside of that. ON the one hand you don't want to have constitutional conventions too often. 

The US is a very stable country-- another of framing that is it is prone to gridlock-- but stability is also a wonderful thing. If you don't believe me ask people in Somalia or Eritrea who would love to have m ore stability. We attract a tremendous amount of foreign investment--- why-- because the country is so not prone to change. 

But 200 years is a long time, Not something we need to do every five or 19 years, but this jalopy is ready for one. Maybe every year we should have a deliberation tay to talk about the constitution. 

There's the idea of the constitution as a sacred document-- we swear oaths to it-- the problem is when you put that weight on it, it ceases to become a foundation of laws. It is tied to America's hopes and dreams". There's a certain amount of emotional reaction of horror. You can't tinker with that. 

The older it gets the harder it is to change. 

Rob: Constitutional fundamentalism already exists. 

Textualism and Originalism.

Textualism-- get out a dictionary and parse the document

Scalia and Thomas are advocates of both approaches

Have the equivalent of fundamentalism.

I have the right to figure it out. I don't need an authority like a pope. That's a more protestant approach. 

How do we defetishize the constitution? How do we take it off its pedestal?

The UK is going through". 

They have a symbol of nationhood-- the queen, the royal family-

Our symbol is the constitution. How do you change 

Celebrate the idea of rule of law rather than the constitution itself.  Think of ways to make our government better. We should fetishize about deliberating how to make our government better. 

if we could celebrate the idea of being governed by law, celebrate those ideas, we find ourselves more willing to revise the constitution. 

Citizens United

Corporate speech very atypical in other countries. 

Other countries to not allow corporations on political speech at the risk of drowning out other voices. 

Other courts allow campaign finance regulation

Very unusual"

Other very unusual--- extent to which government is allowed to exercise control over religion. 

The health insurance debate  in other countries is very different-- because other countries don't have health insurance. -- because the government provides for everyone.  This argument of whether private insurers can be required to provide birth control doesn't exist because the government provides healthcare for everyone. 

Corporate Personhood

Is this something that other countries give?

We inherited our concept of the constitution from British law. 

British never had notion that a corporation is a person. 

Rob: Do other nations recognize corporations as persons. 

In other countries corporations can sue and be sued. They can own property. 

Rob: Are there other nations where corporations are given similar rights to people?

Mila: I'm probably the only person in the world who's read all the constitutions and 

I don't think it's something that's in the constitutions. 

rob: So, from what you know, having looked at 186 foreign constitutions, none of them offer corporate personhood rights. 

I"m pretty sure that none of them do (the 186 constitutions she's studied) and also, foreign constitutions tend to be more explicit.  They can be 400 pages long I haven't seen any of that and I'm pretty sure about it. 

David Law. It is quite popular in other countries to have some kind of restriction in the constitution on property rights, how property can be used. Property rights have to be consistent with social welfare. You can't use property in such a way that it harms to harm society. If you think of a corporation as a bundle of property rights, those specific clauses provide a basis for regulating corporations. 

You don't have that kind of a limitation in the US constitution on property rights. There is more of a constitutional basis for regulation corporations than there is in this country. 

We can't rule out that courts have not said that courts have the same rights as people. 

It is common for there to be property rights that are consistent with social welfare. 

Those are causes regulating corporations. There is more of a constitutional basis for regulation corporations in other countries than there is in this country. 

Many constitutions have limitation causes which define how they can be limited. 

Download our research: 

ssrn.com  search our names you will pull up everything we've got. 

Univeristy VA school of law. Google my name, same goes for David at Washington. 

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