According to a study described by this New York Times article, our constitution is increasingly out of step with its counterparts around the world. Where once ours was the model, now people are looking to the Canadian Charter of Rights and Freedoms (which, if memory serves, was more or less modeled on the way in which liberal courts were interpreting our Bill of Rights, while leaving room for a kind of residual parliamentary supremacy).
According to the Times:
The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,”“the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” (Yugoslavia used to hold that title, but Yugoslavia did not work out.)
Other nations routinely trade in their constitutions wholesale, replacing them on average every 19 years. By odd coincidence, Thomas Jefferson, in a 1789 letter to James Madison, once said that every constitution “naturally expires at the end of 19 years” because “the earth belongs always to the living generation.” These days, the overlap between the rights guaranteed by the Constitution and those most popular around the world is spotty.
Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.
Rather than fall into lockstep with people who seem not to understand the difference between changeable and “prolix” legal codes and fundamental laws, not to mention that between entitlements created by positive law and fundamental rights, I’ll stick with what we have, thank you very much.
We may not be successful in persuading others to adopt our ways, but that certainly doesn’t mean that we should follow in their footsteps, whatever our globalizing elites might urge upon us.
February 7th, 2012 | 11:00 am
That last sentence is a doozy. Actually the whole article is a doozy, but I’ve been pleasantly shocked these last couple days to read the comments around the web (even at the New York Times!) and to see how many people are articulating the difference between natural, unalienable rights and positive law.
The Komen mess coupled nicely with the HHS mess and folks are starting to connect the dots.
February 7th, 2012 | 12:18 pm
The best line in the NYT story: “the availability of newer, sexier and more powerful operating systems in the constitutional marketplace” is responsible for the international slighting of the United States Constitution. That’s what I want in a Constitution, new and sexy. . . .
February 7th, 2012 | 1:02 pm
The last line says it all. It is of no importance what the rest of the world thinks. It is our Constitution, not theirs and they have nothing to say in the matter.
February 7th, 2012 | 1:12 pm
“The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber.”
But they’re real and abiding.
The “right” to free internet access and Meat Lover’s Plus pizza every Friday (with or without beer) isn’t a real right, no matter how many votes it might net you if you promise it to gullible voters.
If it goes away when your government hits hard times (and can’t afford to pay for it any more), it isn’t a right, it’s daddy bribing the kids.
February 7th, 2012 | 3:39 pm
Besides, the Bill of Rights is a list of constraints on the power of the government, not a menu of goodies that that very government will bestow upon you. It contains those beautiful words: “Congress shall pass no law…”
Everything else is rolled up in Amendments IX and X.
February 7th, 2012 | 6:04 pm
LOL – speaking of new and sexier operating systems. The consitutions granting entitlements to free food, healthcare and Internet access are the Windows 7s and 8s of the world, bloated, requiring ever greater resources and continuous upgrades.
Isn’t the US more like the Unix of constitutions?
It might seem a bit old fashioned and intimidating but it concentrates on doing the important things well instead of promising everything for all “users”.
These days Unix-based operating systems do everything the others do, for less. A lesson perhaps?
February 7th, 2012 | 7:36 pm
Likening the Constitution to an operating system is troubling in the implication of law as algorithm and citizens as data; data that falls outside the realm of the algorithm is discarded. While I understand the seductive utility of such a view it seems to me to strip a citizen of their independent agency.
February 7th, 2012 | 8:46 pm
@Peter:
Posting this from my OpenBSD desktop, I like your metaphor, and I concur.
February 7th, 2012 | 8:53 pm
That might just be taking the analogy where it was never meant to go, SteveP.
February 7th, 2012 | 9:01 pm
A few rights aren’t of much relevance anymore (i.e. quartering soldiers in people’s homes?) What makes the Constitution work is many rights are implied and assumed to exist.
For example, ‘innocent until proven guilty’ is not actually found in the Constitution but it is presumed to be part of due process which was inherited from Common Law. A right to due process, which is explicitly protected, implies assuming guilt before proof is forbidden. A ‘right to travel’ likewise would probably fall under multiple provisions. And, of course, the right to privacy.
February 8th, 2012 | 4:45 am
I believe that what Portalis said of the Civil code is especially applicable to constitutions: -
“A host of things are necessarily left to usage, to the discussion of men learned in the law, to the decision of judges….The function of statutory law is to fix, in broad lines, the general maxims of the law, to establish principles that will be fecund in consequences, and not to descend to the details of questions that may arise in each subject. It is for the judge and the jurist, imbued with the general spirit of the laws, to direct their applications.” I
February 8th, 2012 | 7:35 am
The right to travel throughout the United States, and just as importantly the right to move goods and services without hindrance, was the entire motive for creating the Fedetal government, which took from the states the power to restrict such movement via the interstate commerce clause, Article I, Section 8.
The most important freedoms protected by the Constitution are not those embodied in the Bill of rights, but the combination of representative government, the power to elect and NOT elect legislatures and executive officers, and the emphasis on enumerated powers rather than unconstrained discretion. The major sin of modern Federal courts is that, while they purport to be expanding the “rights” of Americans, they are depriving us incrementally of the most fundamental right granted there, the right to govern ourselves and create the laws that govern us, even revoking laws found to be unwise. The end run around the legislative process taken by modern courts has taken power into the courts and away from the people, creating tensions that get expressed in every new election, even though they can never be dissipated through the normal process of legislative compromise.
Promising “rights” to economic benefits actually decreases freedom, because the only way government can provide them is by taking them from others, with a large handling and shipping fee thrown in.
February 8th, 2012 | 7:54 am
I lay much of the blame for the misconception of the Supreme Court as the czar over the other, democratic branches of government to the way in which the influential Brown v. Board of Education decision was explained. In its earlier decisions which upheld the notion of “separate but equal”, the Court was endorsing a lie, because whenever one segment of society has the power to separate off another part, the two parts are per se unequal. But rather than confess its sins, the Court claimed that it was acting as a discretionary manager of the meaning of the Constitution, seeing that its former version did not work out in practice and so making a policy switch based on its own pragmatic judgment rather than the clear words and known historical intent of the Fourteenth Amendment. It thus laid the foundation for the Court to claim the power to find more and more authority for itself and less for elected officers accountable to the voters, creating zombies like Roe v Wade that cannot be killed by normal rational human effort. This is building to a climax in which the Courts will order states to recognize a “right” to gay marriage, and some will refuse, leading to the crippling of state power or of the power of the courts, which ultimately rely on the willingness of Congress and the President to go along for the ride in the Court’s new Constitution-mobile.
February 8th, 2012 | 1:58 pm
A few rights aren’t of much relevance anymore (i.e. quartering soldiers in people’s homes?)
So if the government found it convenient to quarter soldiers in your home, you wouldn’t object?
Or do you think the government no longer could have any reason or motive for wishing to do so?
February 8th, 2012 | 5:09 pm
Likening the Constitution to an operating system is troubling in the implication of law as algorithm and citizens as data; data that falls outside the realm of the algorithm is discarded.
I understand the Romans viewed their legal system as a machine, is this so different?
Rather than data I’d class citizens and commerce/civil society as “application software”. But as has already been said, the analogy does have its limits.
February 9th, 2012 | 4:32 am
Peter
The Romans did not regard their law as a machine, but as a branch of ethics
“Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere.
[Dig.1.1.10.1 Ulpianus 1 reg..]” – “These are the precepts of the law: to live uprightly, not to harm another, to give to each his due”
Jurisprudence was “iusti atque iniusti scientia. Dig.1.1.10.2 Ulpianus 1 reg. ] – “The science of the just and the unjust.”
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