Constitutional conventions

Law School scholar Tom Ginsburg the founding documents of governments across the globe to find out what makes constitutions work.

By Laura Putre

National constitutions, on average, last nine years. Why do some have a flea’s life span, and others endure for centuries? To find out, Chicago international-law scholar Tom Ginsburg and Zachary Elkins of the University of Texas at Austin have compiled a searchable database of some 800 constitutions, dating back to 1789.

Called the Comparative Constitutions Project, the pair’s National Science Foundation–funded study began in 2005, in response to problems with constitutional reform in Iraq and Afghanistan. During those reforms, Ginsburg and Elkins realized, participants were woefully in need of an international database of past constitutions to provide historical perspective on what worked and what didn’t. “In any given year, four to five constitutions are being written, and many more are having amendments considered,” says Ginsburg. “Both advisers and negotiators need to know what other countries have done in response to particular situations in order to figure out what might work locally.”

With three degrees from the University of California, Berkeley, Ginsburg has studied international constitutions up close, as a legal adviser at the Iran-U.S. Claims Tribunal at the Hague, Netherlands, and a consult for numerous international development agencies and foreign governments on legal and constitutional reform. Constitutions that cover issues relevant to the citizenry, he says, tend to survive longer than those that favor abstraction. India’s 60-year-old constitution, for instance, sets parameters for affirmative action and public employment. “People feel they have a stake,” Ginsburg says. “If they’re too general, no one really cares.”

Flexibility is also a factor in longevity. Constitutions that can be amended with an ordinary majority tend to outlast those with higher hurdles. The U.S. Constitution is an anomaly here, requiring approval of two-thirds of both houses and three-fourths of state legislatures to amend. But it has survived “because the courts continually update it,” Ginsburg says. “Without that, there would be a good deal of pressure on the system.”

Ginsburg and Elkins were teaching at the University of Illinois at Urbana-Champaign, when they launched the Comparative Constitutions Project. The first step was to catalog every independent, constitutional nation-state in existence during the past 220 years. The survey includes a chronology of when each constitution was adopted and amended.

Next Ginsburg and Elkins tracked down each constitution’s full text, in English if possible. Constitutions in use after 1950 were fairly easy to locate, through annually updated standard reference volumes. For earlier works they had to do some digging, contacting embassies for original documents or consulting journal articles from other countries. “We still don’t have all the texts, but we do have thousands of documents,” says Ginsburg, noting that he and Elkins plan to include amended texts as well as originals in the database. So far they’ve identified about 800 discrete constitutions for the nearly 200 countries now in existence and some 2,500 amendments of those constitutions.

To analyze each constitution, Ginsburg and Elkins drew up 667 questions with the help of an advisory board of constitutional scholars. The questions address, for instance, the branches of government and their powers, the rights of the citizenry, and amendment procedures. (A sampling: “How long in words is the constitution?” “Does it mention God or other deities?” “What is the minimum age for becoming head of state?” “Do citizens have the right to overthrow their government?”)

The constitutional texts and data will be posted online this summer, Ginsburg expects, at comparativeconstitutionsproject.org. Their research is also the basis of The Endurance of National Constitutions (Cambridge University Press), a book-in-progress that examines the ideal conditions for constitutional longevity.

The Comparative Constitutions Project’s site is geared toward scholars, but Ginsburg and Elkins have a sister site with the United States Institute for Peace, a congressionally funded nonprofit that fosters peace and conflict resolution worldwide, intended for politicians, lawyers, scholars, and lay citizens involved in drafting constitutions. That site, constitutionmaking.org, provides a comprehensive repository of available constitutional texts, information on trends and patterns in constitution writing, sample provisions arranged by subject, and a forum with topical commentary from scholars.

Here constitutional drafters looking for precedents to guide them can quickly learn that in 2000, 51 percent of all active constitutions had provisions for freedom of the press, 19 percent had provisions on child labor, and 82 percent stipulated instructions on calling for a state of emergency. Only three countries had provisions for the right of citizens to bear arms: the United States, Guatemala, and Mexico. Constitutional drafters and scholars consider the U.S. Constitution “somewhat outmoded,” says Ginsburg. Constitution makers “look to the Bill of Rights for inspiration, but they draw their specific provisions from other constitutions seen as more modern.”

Constitution-drafting has its fashions—freedom from governmental interference was big in the 19th century, says Ginsburg, while today in Latin America amendments abolishing presidential term limits are popular—so it’s important to keep the information comprehensive and fresh. The initial data from the Comparative Constitutions Project covers events through 2006, but Ginsburg and Elkins will continue to track and post constitutional changes.

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