Tom Ginsburg is a professor of International Law and Political Science at the University of Chicago Law School. In this interview, we discuss his work in comparative constitutional law and how a nation's guiding documents can succeed or fail.
David Kaner: I’m here with Tom Ginsburg, the Leo Spitz Professor of International Law and Political Science at the University of Chicago. He currently co-directs the Comparative Constitutions Project and has consulted with numerous international development agencies and foreign governments on legal and constitutional reform. Thank you Professor Ginsburg for doing this.
Tom Ginsburg: My pleasure.
DK: So to start out, do you think you could describe the work of the Comparative Constitutions Project and maybe talk about what inspired its creation?
TG: Some years ago when I was at the University of Illinois at Urbana a colleague and I were talking and we realized we had a common interest in constitutions-he’s a political scientist named Zachary Elkins, he’s now at the University of Texas-and we conceived of the idea of gathering basic data on what the content of the world’s constitutions was. Believe it or not, as important as these documents are, and as high profile as they are, there’s just very little systematic information about what’s in them. So we thought it would be useful to gather and to code, really, to put together a database of the world’s constitutions. We then decided that it ought to be comprehensive, so we began with 1789, the American Constitution, widely perceived to be the first national constitution that was written down, and try to cover all countries and all years since then.
DK: So that’s obviously a very ambitious project. Have you found it a challenge? Has it been difficult to gather all that information and if so, how?
TG: It’s taken longer than we anticipated. One of the reasons is when we did our initial count we thought there were some 200 or 300 constitutions in existence but we realized as we began to look that there were many more than we had conceived of. Even though there are only 194 countries right now and there were only 60 before WWII, those countries have produced a tremendous number of documents. The reason for that is that constitutions turn out not to last very long on average. So many countries have many constitutions in their history. The Dominican Republic, by our count, has had 27.
TG: So this meant that there was a lot more work than we had originally anticipated, first of all just finding all these documents and then in coding them. Another challenge has been the existence of versions in English. Not all constitutions have been translated so we had to commission some translations as well as hire people with specific language abilities.
DK: Especially considering how many constitutions countries have gone through, do you think that rate of constitutional mortality is a product of the unique political circumstance or do you think there are elements of a constitution that control its longevity?
TG: It’s a great question and it’s one we set out to answer in a book we published a couple of years ago called “The Endurance of National Constitutions.” Our basic framework was that a constitution is a political bargain, a set of institutions that will be stable so long as nothing in the environment changes, but we frequently observe that when there’s a shock to the system-a war, a crisis-it’s followed by constitutional death. At the same time we were interested in exactly what you’re asking, which was is there anything we can put in the constitution that can immunize, if you will, from shocks. We did find certain features that help make a constitution last.
DK: What sort of features?
TG: Constitutions that are more flexible. It makes some intuitive sense. The easier it is to amend a constitution the more able it is to adjust to changing circumstances. A second factor is the amount of participation that goes into producing the constitution, so we have kind of an index of participation. When the public is involved, we think that helps a constitution to endure, because people will be aware of the constitution when someone tries to violate it. Finally we find that constitutions that are more detailed and more specific last a long time. This was quite a shock to many Americans, who tend to believe it’s the very vagueness of our document that has allowed it to survive, but we find that on average the opposite is true.
DK: Other than longevity, have you come to any value judgments about any other specific structure or enumeration of rights that is either helpful or hurtful to a people to put in their constitution?
TG: Well, I tend to be partial to the institution of constitutional review, where you have a court to review and make an independent evaluation of challenges to the constitution. It’s of course the case that these courts can be manipulated. Nevertheless I think that everything else being equal it’s still better to have the possibility of a second look at key policies to make sure they’re constitutional, so I tend to think that that’s important.
DK: That’s obviously a feature we have in our constitution, through the Supreme Court. You start in 1789, with our constitution, not the Magna Carta or something. So how do you view the influence of our constitution on the development of everything that came after?
TG: Well it’s a great question and in some sense it’s an empirical question. You can get at it by looking at the similarity of other constitutions to the United States’ in terms of the institutions that they adopt. One of the things we discovered in our book is that over time the similarity of other countries’ constitutions to that of the United States has declined. When you look to constitutions in the 19th century they were quite similar, but just looking at Latin America, a region that has been historically influenced by the United States institutionally [Professor Ginsburg points to a graph in one of his books, showing that the similarity of Latin American constitutions to the US Constitution has declined over time] one sees a drift away from the US model in terms of similarity over time. That makes a good deal of sense and we think it’s normatively attractive because of course the world’s very different from what it was like in 1789. Many people have argued that the United States Constitution should be reformed or amended and I personally tend to agree with that.
DK: Sort of as a segue, the Comparative Constitutions Project works with the US Institute of Peace on a website called constitutionmaking.org, which aims to “facilitate informed choice” for designers of governing institutions. That sounds a little different from what we did post-WWII, where we basically wrote the constitution of Japan for them, practically. How does that process work and how do you, coming from a specific environment of thought about what rights people should have, how do you balance the set of what you’ve come to consider “best practices” with respecting local culture and desires, as well as the political environment of the moment?
TG: I tend to shy away from the language of “best practices”. Everything is always contextual, so an institution that works in one country won’t necessarily translate to another. At the same time countries are always trying to learn from each other, and there’s no reason to reinvent the wheel because situations reoccur. So there’s a kind of tension between those two positions, and that of course is what the job is of constitutional designers to try and figure out. There’s also the problem of institutional complementarities. You can’t adopt institutions in isolation, they work with other institutions in a kind of whole configuration or structure. In any case, I think the job of constitution writing is to try to understand how institutions have operated in other countries as best we can. And here the social science is not real great, we don’t really have a lot of firm knowledge about how to fit institutions to context. Nevertheless, that’s what the field of comparative politics is trying to work out. There’s also technical aspects of drafting, just of writing a law and making it internally consistent. All of this increasingly occurs in a kind of global context. Just the last month I’ve been doing some work on the constitution of Somalia; there’s a push by the international community to try to get a new constitution for Somalia in the spring. That’s inherently an international process because of the nature of the conflict there.
DK: Do you think on the whole, having look at so many of these documents, do you think that the rationale for having a constitution continues to be a strong one? Because the UK, Israel and New Zealand, for instance, have un-codified constitutions. Do you think the constitution as we conceive it in America will continue to be the model for how you create a governmental infrastructure going forward?
TG: Well increasingly it’s not the model, so most new constitutions don’t adopt our particular system. Certain aspects of the American Constitution have been very influential, like the Bill of Rights. Other aspects have not been, like the Electoral College-maybe that’s a good thing. So it’s all very specific, but one thing to look at is the overall structure of governing institutions, and there the typical options are usually thought of as being presidential, parliamentary and semi-presidential. It turns out the plurality of countries in the world today have adopted semi-presidential constitutions, it’s now the most popular form of government, combining features of a presidential system as in the US and a parliamentary system as in Britain. So this just illustrates that there’s institutional experimentation going on, there are trends in constitutional government, just as there are with fashion, which implies people aren’t always adopting institutions because they’re the best, but maybe because other influential countries are doing it. All of that said, I think American influence as a model has gone down. American influence in practice, though, has not, because there’s many American organizations that play a role in constitution-making situations in post-conflict states, for example.
DK: So as a concluding question then, what trends are you seeing in constitutions? What effect do you think that will have moving forward on world politics?
TG: One trend is that constitutions are becoming much more detailed. They’re also becoming more flexible. The difficulty of amending constitutions is decreasing somewhat. In some sense we think this is good because, as I said, those two things were good for endurance, but it also implies constitutions are more like statutes, ordinary laws that can be changed with some frequency, rather than being these kind of central documents to the political culture that we imagine from our American experience. So that’s certainly a trend. In terms of substance we see a trend towards greater use of independent accountability agencies, human rights commissions, electoral commissions, some specialization in terms of government function that way, trying to take things out of the political sphere and giving them to so called independent regulatory agencies, so that’s certainly a trend as well.
DK: Professor Ginsburg, thanks so much for your time, it’s been very interesting. Thank you.