About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

87 N.Y.U. L. Rev. 762 (2012)
The Declining Influence of the United States Constitution

handle is hein.journals/nylr87 and id is 768 raw text is: THE DECLINING INFLUENCE OF
It has been suggested, with growing frequency, that the United States may be losing
its influence over constitutionalism in other countries because it is increasingly out
of sync with an evolving global consensus on issues of human rights. Little is
known in an empirical and systematic way, however, about the extent to which the
U.S. Constitution influences the revision and adoption of formal constitutions in
other countries.
In this Article, we show empirically that other countries have, in recent decades,
become increasingly unlikely to model either the rights-related provisions or the
basic structural provisions of their own constitutions upon those found in the U.S.
Constitution. Analysis of sixty years of comprehensive data on the content of the
world's constitutions reveals that there is a significant and growing generic compo-
nent to global constitutionalism, in the form of a set of rights provisions that appear
in nearly all formal constitutions. On the basis of this data, we are able to identify
the world's most and least generic constitutions. Our analysis also confirms, how-
ever, that the U.S. Constitution is increasingly far from the global mainstream.
The fact that the U.S. Constitution is not widely emulated raises the question of
whether there is an alternative paradigm that constitutional drafters in other coun-
tries now employ as a model instead. One possibility is that their attention has
shifted to some other prominent national constitution. To evaluate this possibility,
we analyze the content of the world's constitutions for telltale patterns of similarity
to the constitutions of Canada, Germany, South Africa, and India, which have
often been identified as especially influential. We find some support in the data for
the notion that the Canadian Charter of Rights and Freedoms has influenced con-
stitution making in other countries. This influence is neither uniform nor global in
scope, however, but instead reflects an evolutionary path shared primarily by other
common law countries. By comparison, we uncover no patterns that would suggest
widespread constitutional emulation of Germany, South Africa, or India.
t Professor of Law and Professor of Political Science, Washington University in St.
Louis. B.A., M.A., Ph.D., Stanford University; J.D., Harvard Law School; B.C.L. in
European and Comparative Law, University of Oxford.
$ Associate Professor, University of Virginia School of Law. B.A., LL.M., Tilburg
University; LL.M., Harvard Law School; D.Phil., University of Oxford. Portions of this
Article were presented at Seoul National University School of Law's Foreign Authority
Forum; the International Symposium on Legal Protection of Human Rights held at the
Yeungnam University Institute of Legal Studies in Daegu, Korea; and the 2010 annual
meetings of the Law and Society Association and the Southeastern Association of Law
Schools. For their extremely helpful and insightful comments and suggestions, we thank
Kevin Cope, David Erdos, Josh Fischman, Denis Galligan, Tom Ginsburg, Benedikt
Goderis, Dan Ho, Andrew Martin, Keith Poole, Eric Posner, Miguel Schor, and Robert
Walker. We are also grateful to Elizabeth Drake, Raquel Frisardi, Alec Knight, and Casey
White for excellent research assistance. The New York University School of Law provided
Professor Law with invaluable support and hospitality during the authorship of this
Article. The ongoing research collaboration between the authors is made possible by a
grant from the Center for Empirical Research in the Law at Washington University in St.
Louis. Copyright @ 2012 by David S. Law and Mila Versteeg.

Imaged with Permission of N.Y.U. Journal of International Law and Politics

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most