Influence of the American Constitution Abroad
INFLUENCE OF THE AMERICAN CONSTITUTION ABROAD
It can easily be argued that America's most important export has been the Constitution of the United States. It was the first single-document constitution. It is the longest-lived. And in only two centuries, virtually every nation has come to accept the inevitability and value of having a constitution. This fact transcends differences of culture, history, and legal heritage. The United States Constitution is perceived as the fundamental point of reference, even by regimes whose philosophical outlook is antidemocratic. Furthermore, nearly every nation has accepted the "Philadelphia formula"—either internally or universally—as the means by which an effective constitution can best be produced.
The international impact of the U.S. Constitution is an ongoing reality: most of the world's constitutions have been written in the last forty years, and constitutions are rewritten and revised all the time. The Constitution of the United States continues to be the guiding pattern, and a wellspring of inspiration and innovation. The fundamental idea behind the U.S. Constitution was the belief that the people of a nation comprise the constituent power. The founders of this country, conceiving of the people as the sovereign, asserted that the people themselves could formulate and promulgate a constitution. The idea of a constitutional convention was the natural expression of this concept, for it literally embodied the sovereignty of the people.
Universally influential also have been the American ratification and amending processes. For it was these that gave the U.S. Constitution—and all subsequent constitutions—the essential characteristic of permanence. Prior to the creation of such machinery, any law could be superseded by another law. Now it is no longer possible. A method had been created for public approbation of the work of the constitution-makers before the constitution could come into effect. And a method had been created for constitutional change to be effected by that public. Every constitution has since copied or been guided by those formulations. Indeed, the very nature of maintaining permanent written constitutions depends upon the creation of these political devices.
The federal structure—the essential product of the U.S. Constitution—innovated a means by which local and central power could be reconciled. The underlying assumption was that the citizenry, and not the government, is sovereign and is the source of derived power. Thus was established a basis for maintaining national unity, and it has been widely adapted.
Australia, Canada, West Germany, Switzerland, Yugoslavia, and, most recently, Nigeria boast of adherence to American concepts in the creation of their own federal structure and so to a lesser extent do Argentina, Brazil, Mexico, and Venezuela.
The United States was the first nation to have an elected head of state called a president. It was a constitutionally created president, described by harold j. laski as "both more and less than a king; both more and less than a prime minister." Today more than half the world's nations have presidents as their chief executives, some with even more constitutional power than the American president (France, South Africa), many with only nominal ceremonial powers (India, Zimbabwe).
The American Constitution formalized the concepts required to make such a system work: the separation of powers and the system of checks and balances. The result balances leadership and minimizes abuse, encourages stability and obviates tyranny.
It is now universally understood—as it was by a vocal American citizenry that backed the bill of rights 200 years ago—that fundamental freedoms cannot be guaranteed merely by good intentions. The ratifiers of the U.S. Constitution taught that there could be no fundamental law of the land without a separate section listing individual rights. With the adoption of the Canadian Charter of Rights and Freedoms in 1982, the United Kingdom is the only major nation without a constitutional Bill of Rights, although such has been proposed. The belief that liberties require an explicit statement in order to assure their protection animates political endeavors and constitutionalism throughout the world today.
The sheer longevity of America's constitutional experiment illuminates with each passing year a great, yet hidden strength of the U.S. Constitution: It is a device for assuring national dialogue and conflict resolution. The legislative branch, the executive, and especially the judiciary are more than divisions of government. They are America's ongoing constitutional convention. And as much as anything, this aspect of their identities explains why the American constitutional model remains so attractive and thought-provoking at its bicentennial.
Any study of the international influence of the U.S. Constitution must take into account the fact that this influence is both historic and ongoing. And it should consider how American guidelines, practices, and innovations have been improved on by other nations. But more would be accomplished than just a study of the past. A new understanding would be achieved, of what is fundamental to the American Constitution and what is ephemeral, of what is exportable, and even universally applicable.
So pervasive has been the influence of the Constitution of the United States that most nations have followed its lead by adopting one-document constitutions of their own. Beginning in 1791 with Poland and France, the American concept of a constitution to create government speedily became the norm.
Although some nations are under martial rule or have a transitional government with their constitutions in suspension, all but the United Kingdom, New Zealand, and Israel are committed to the concept and principle of the one-document constitution and all have such a document in some stage of preparation or have one in place. Significantly, the act of constitutional suspension has become the most extreme political act of modern government. What makes this American-influenced constitutional universality so historically significant is its short duration on the world stage.
What has made the U.S. Constitution so admired and so imitated? It was not the establishment of a supreme law of the land; that was no innovation. Plato taught in The Laws that "some body of law should exist on a permanent basis, on a superior plane—neither subject to individual tyranny nor to raw majority democracy." Historian k. c. Wheare noted that "from the earliest times … people had thought it proper or necessary to write down in a document the fundamental principles upon which their government for the future should be established and conducted."
Nor was it the theory of limited government that intrigued foreign statesmen. Even the notions of establishing a republic or electing a president or the radical concept of popular sovereignty were already commonplace—at least in theory. The philosophers of the Enlightenment and their forebears all had written on such subjects and were familiar with each other's works. And there had already existed such governmental documents as the 1579 Act of Union of the United Provinces of the Netherlands, but until the American experience no one had thought of calling their documents "constitutions."
The written constitution is an American innovation. Its genesis can be traced to thomas hooker ' sfundamental orders of connecticut (1639) which was the first to create a state or governmental entity. This prefigured the state constitutions of Virginia and Pennsylvania, which in turn influenced the French Declaration of the Rights of Man. The U.S. Constitution, however, was the document that influenced and continues to influence foreign constitution-makers. For since that date nationhood was to be achieved via a constitution.
The primary reason for the great influence of the U.S. Constitution abroad is that it institutionalized government based on the sovereignty of the people. Americans also created the machinery to translate constitutional philosophy into constitutional reality. Their main device was the constitutional convention or constituent assembly. This device has been the most significant and most followed precedent in constitutional development. For in this way a nation can be formed and gets its "supreme law of the land" (save in those instances where the former colonial power grants independence and bestows a constitution for independence). The constituent assembly institutionalized democracy. It legitimized revolution, enabling men to do what they had not yet been able to do peacefully and legally—to alter or abolish government and institute new governments deriving their authority from the consent of the governed.
By following the United States model, all constitution writers after 1787 could legitimize their revolutions, their independence, their nationhood. In his study of Latin American political institutions, Jacques Lambert wrote: "Here … was the worthy model of a constitution that repudiated monarchy and clearly proclaimed the principle of political freedom.… The Constitution of the United States lent authority the cloak of democratic respectability. A few countries very shortly adopted constitutions directly inspired by it—Venezuela in 1811, Mexico in 1824, the Central American Federation in 1825, and Argentina in 1826."
Just by being the first, the U.S. Constitution inevitably influenced constitutions abroad. It was the only available national model for the 1791 constitution-makers of Poland who copied its preamble and its impeachment provisions, and in their famous Article V provided Europe's first statement of popular sovereignty.
Another reason for the widespread influence of the United States Constitution abroad is that constitutions are largely written by lawyers, and lawyering normally involves the search for source and precedent. Lawyers have dominated the constituent assemblies and constitutional conventions abroad. The lawyer constitutionalists of America were also proselytizers. They shared the gospel so often proclaimed by thomas jefferson."We feel," he wrote, "that we are acting under obligations not confined to the limits of our own society. It is impossible not to be sensible that we are acting for all mankind."
This message has been well received, starting with France and the men who made the French Revolution. The fact that the constitution consisted of lawyers' ideas contributed to their ready transmittal. Lawyers were popular; the Dantons and Robespierres had sided with the people in their revolt against authority. Jacques Vincent de la Croix, a lawyer, offered a course on the Constitution of the United States at the Lycée de Paris, an institution of free higher education established in 1787. This pattern has continued. The lawyer has been the commoner charged with teaching constitutionalism and translating the needs and aspirations of the people into a legal document. Every constitutional lawyer in the world knows about the U.S. Constitution.
The lawyers who wrote the American constitutions also wrote about them. john adams, author of the massachusetts constitution and prime "inventor" of the concept of a constitutional convention, could not be in Philadelphia in 1787 as he was then envoy to England. But his Defence of the Constitutions of Government of the United States of America was one of the most influential works on constitutionalism, at home and abroad.
Even more influential was the federalist, almost immediately translated into French, German, and Spanish to provide constitutional guidelines for a dozen or more nations in Europe and Latin America. Now translated into more than twenty languages, The Federalist is still taught in constitutional law classes abroad and new translations are still being published.
The records of the 1848 German constitutional assembly at Frankfurt contain references not only to the U.S. Constitution and The Federalist but also to the constitutional commentaries of Justice joseph story and Chancellor james kent. Modern examples abound, with copious references in India's 1947 Constituent Assembly Debates, and, more recently, in the commentaries on the Nigerian Constitution of 1979.
The tradition of the American participant, counsel, or consultant in foreign constitution-making dates from the service of thomas paine as a member of the 1791 French constitutional assembly. Lawrence Ward Beer wrote of the American role in constitution-making in Asia: "A basic context for American influence has been the consultation of American experts on constitutionalism and law during the process of drawing up, applying, interpreting, or amending a national constitution. Concretely, the views of individual American judges and legal scholars have been solicited during visits by Asian constitutionalists to America; American legal literature (including judicial precedent) has been studied, and many Americans have been directly involved in Asian constitution-making."
And the tradition continues. Americans have influenced the writing of constitutions for nations throughout the world, including Liberia, China, Ethiopia, Nigeria, Zimbabwe, Bangladesh, and Peru. alexis de tocqueville was the best known of the foreigners who came to study United States government and who returned home as advocates of the American system. His Democracy in America, published in French editions in 1835 and 1840, heightened interest in the United States constitutional system both in Europe and in Latin America.
But Tocqueville was preceded by scores of other Europeans who were attracted by the hope and promise of the new world, most notably Thaddeus Kosciusko, who was later to lead the struggle for democracy in Poland. And Tocqueville was followed by many thousands of scholars in law, government, history, and political science who likewise transported American constitutional ideology. Current manifestations of this development are apparent in the 1982 constitutions of Canada and Honduras and the 1983 constitution of El Salvador.
The United States, a great colonizer, has offered a solution to colonialism. As pointed out by henry steele commager :
No Old World nation had known what to do with colonies except to exploit them for the benefit of the mother country. The new United States was born the largest nation in the Western world and was, from the beginning and throughout the 19th century, a great colonizing power with a hinterland that stretched westward to the Mississippi and, eventually, to the Pacific. [And thence beyond the mainland to Alaska and Hawaii.] By the simple device of transforming colonies into states, and admitting these states into the union on the basis of absolute equality with the original states, the Founding Fathers taught the world a lesson which it has learned only slowly and painfully down to our own day.
This constitutional concept has been studied and followed in France, Portugal, Spain, Yugoslavia, and the Soviet Union, to provide a few examples, but not always with successful results. Algeria is no longer part of Metropolitan France, but French Guiana, Guadeloupe, Martinique, Reunion, and Saint Pierre and Miquelon are. Angola is no longer an integral part of Portugal, but Madeira and the Azores are.
Another reason for the influence of the American Constitution abroad is rooted in military conquest. Although the influence of the Philadelphia experience had been felt in Baden, Bavaria, Frankfurt, and Wrttemberg before there was a unified Germany, a more general reception of American style constitutionalism attended the preparation of the post-World War II 1949 Basic Law of the Federal Republic. Similarly, the "MacArthur Constitution" influenced—to use an understatement of the greatest order—Japan's 1947 constitution.
Under United States military authority following the Spanish American War, Cuba's 1901 constitution bears obvious American imprints. And so does the 1904 constitution of Panama, which in Article 136 gave the United States authority to intervene to establish "constitutional order." Haiti's 1918 constitution, putatively the work of then Assistant Secretary of the Navy franklin d. roosevelt, was based on compromises between existing government forums and the ideologies of the American military forces which had occupied the country since 1915.
American influence was also significant in the preparation of the South Vietnam Constitution of 1967. The Vietnamese actually copied more from the United States model than was appropriate for a nation with a French legal tradition. (The preamble to the North Vietnamese Constitution had been taken directly from Lincoln's Gettysburg Address.)
Most pervasive has been the influence of the U.S. Constitution upon its former colony, the Republic of the Philippines. Under American sovereignty from 1896 until its independence in 1946, the Philippines were given a commonwealth constitution in 1935 which remained virtually unchanged until 1973. And on the eve of the American constitutional bicentennial there was a significant movement to call a new constitutional convention in Manila. A new constitutional structure will predictably once again follow the Philadelphia model.
Albert P. Blaustein
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