Law
9:57 am
Tue July 3, 2012

Should U.S. Constitution Be An International Model?

Originally published on Wed July 4, 2012 1:03 pm

Transcript

NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan, in Washington. Earlier this year, Supreme Court Ruth Bader Ginsburg told a television interviewer in Egypt that she would not look to the U.S. Constitution as a model if she were drafting one today.

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JUSTICE RUTH BADER GINSBURG: Why not take advantage of what there is elsewhere in the world? I'm a very strong believer in listening and learning from others.

CONAN: Justice Ginsburg's words come at the same time that an article in the New York Times cited research which shows the U.S. Constitution in rapid decline as the democratic world's model of choice. No one argues that the world's first constitution stands perfect as written. It's been changed more than two dozen times to include the Bill of Rights, to eliminate slavery and ensure due process of law and women's suffrage.

What parts might new democracies usefully borrow or avoid? Please note this is a rebroadcast. We're not able to take any new calls on the program today.

Later in the program, the great director Mike Nichols, who's on Broadway with "Death of a Salesman," but first Justice Ginsburg specifically commended South Africa's constitution. Christina Murray helped frame that document, along with Kenya's constitution. She's here in Washington as a visiting senior fellow at the United States Institute of Peace and joins us here in Studio 3A. Welcome to TALK OF THE NATION.

CHRISTINA MURRAY: Thank you.

CONAN: And did you look at the U.S. Constitution?

MURRAY: We looked at the U.S. Constitution. In fact, I've been a little bit surprised by the kind of reaction that Justice Ginsburg's comments aroused because I think she's been partially misunderstood. I'm sure she knows that there's seldom a constitution-making process in the democratic world that isn't informed by the fundamental principles that inform the U.S. Constitution.

So I think that the U.S. Constitution's influence is still very much there but just in a slightly different way to the way one might expect.

CONAN: For example, different?

MURRAY: Well, for example, first, I think, democratic constitutions want to restrain power - we learned that, to a large extent, from the U.S. - have bills of rights - we learned that largely from the U.S. - independent courts, we learned that from the U.S.

But then when we think of the Bill of Rights, we expect bills of rights nowadays to address a whole lot of different problems to those that were - that concerned the framers of the U.S. Constitution. And I think bills of rights nowadays perhaps start by looking at the international consensus, really, on human rights.

So would always start by looking at the Universal Declaration of Human Rights, the international covenants on political and civil rights, social and economic rights, and so on, and then would start looking at solving the kind of problems the particular country needs to address.

CONAN: Well, every country is particular, and each has its own peculiarities, but in terms of rights, you're talking about, obviously, those that are enumerated in the Bill of Rights, and in terms of other constitutions, other more recent constitutions. I think Adam Liptak in the New York Times said the U.S. Constitution is parsimonious.

MURRAY: That's a fair description, and I can't remember exactly how many rights the South African Bill of Rights includes, but it's certainly sort of 20 or more. The Kenyan constitution, which is one - not the most - of the most recent constitutions in Africa, probably has 30-odd rights.

Now, what are all those new rights? I think rights particularly that respond, say, to the South African concern, the Kenyan concern, an experience of secretive, authoritarian government. So both the Kenyan and South African constitutions have a right to access to information, a right to fair administrative action. And many of the other rights are speaking to particular domestic concerns.

CONAN: And there is also, as you look at these concerns, there's difference in structure, as well. Yes, a president in South Africa, but a president as head of state and not as the chief executive.

MURRAY: Well, more complicated in South Africa, if I can add to that, a president who is in fact a kind of prime minister because he's the chief executive officer in our parliamentary system. So South Africa has a parliamentary system. Why? An interesting question, to which I don't really know the answer.

CONAN: Well, there was a British tradition.

MURRAY: Exactly. That's what I was going to suggest, that in many cases, constitution-makers move not very far from the institutions that they're most familiar with.

CONAN: And in this case, it was the tradition of Britain, and that's why you see parliamentary systems, perhaps, as in Canada, Australia, India, Pakistan, places like that.

MURRAY: And in the Commonwealth, yes.

CONAN: And throughout the British Commonwealth.

MURRAY: But just to strike a very different note, one of the moments that I found rather extraordinary in the Kenyan constitution-making process is once the very, very difficult problem of what type of system of government Kenya should adopt was resolved, the politicians instructed us to draft a presidential system U.S.-style.

So it came at an interesting moment, when there was something of a deadlock between the executive and Congress, but what was emphasized was it must be a presidential system not like their past one - which concentrated power in an extraordinary way on the president - but like the U.S. one, with adequate checks and balances.

CONAN: Checks and balances, of course, at the cornerstone of the U.S. Constitution. Let's bring another voice into the conversation, Akhil Amar, Sterling Professor of Law and Political Science at Yale University, currently a visiting professor of law at Harvard Law School. His teaching focuses on constitutional law and history. Nice to have you back on the program.

AKHIL REED AMAR: Thanks for having me, Neal.

CONAN: And you recently described, say some of the some of the concerns, as you look at the declining influence of the United States Constitution, are overlooking the fact that the United States Constitution is, as you describe it, the hinge of modern history.

AMAR: Yes. I think we should declare victory and go home. So we shouldn't be too disheartened. I - there was so much wisdom in the previous commentary. Each country has its own traditions and institutions and history and specific needs to address.

Pulling the camera way back, very big-picture, instead of just focusing on variations among democratic constitutions and democratic societies and the ways in which some of them - the new democracies are perhaps not mimicking the United States all the way down, the big picture is that we have more democracies than ever before, more constitutional democracies.

And in that deep sense, the world is becoming more American. Before the United States Constitution, before 1787, '88, the year that I call the hinge of human history, for the previous millennia of recorded history, democracy existed in very few places in the planet, and where it did exist, small little city-states, in Greece and pre-imperial Rome, where people met face-to-face, they had a common religion, a common culture, a common language, and then the United States Constitution, and they blinked out. And they didn't really survive.

And you look at the planet in 1787, and despotism generally reigns. And then in this year that changed everything, the hinge of human history, the United States, the people of the United States put a constitution to a vote up and down a continent.

Ordinary people got to vote on how they and their posterity would be governed. It never before happened in world history. And not in a small place, but again, up and down a continent, different religious traditions, different languages, different time zones and climatic zones, truly extraordinary.

And we've made it work, by and large. It's gotten better with abolition of - a Bill of Rights and abolition of slavery, women's suffrage, abolition of poll taxes. And the world has followed in that tradition. We proved to the world that democracy could work, that you could have a written constitution. You could have judicial review, which many of the new countries are emulating, and they're becoming more American. And if they have their own variations of that, great.

CONAN: Judicial review actually not specifically in the Constitution.

AMAR: Not in so many words. You mentioned earlier checks and balances, not in so many words. Neither are the phrases separation of powers, rule of law, federalism. The very phrase Bill of Rights isn't in our document. But all these things are there. So is the right to travel. So was proof beyond reasonable doubt.

And so sometimes, when certain people are just trying to measure how much language overlap there is, this linguistic overlap, they're missing that a major portion of our system is based on things that are clearly part of our regime, but maybe not in so many words.

We have a very robust tradition of un-enumerated rights, including privacy and several of the others that I just mentioned.

CONAN: Let's bring another voice into the conversation, and after the break, we'll get to the constitutional scholars in our audience, as well. The number: 800-989-8255. Email: talk@npr.org. But Roger Pilon is with us here in the studio, vice president for legal affairs at the CATO Institute. Nice of you to come in today.

ROGER PILON: Thank you. Good to be with you, Neal.

CONAN: And the U.S. as a constitutional model, its specific influence declining. There are principles, and it was interesting to hear Christina Murray talk about a limited government.

PILON: Yes. And I should note, before we go any further, Neal, that the piece by Adam Liptak in the New York Times made the point that this is a phenomenon, declining influence of the U.S. Constitution, that pretty much tracks over the last quarter-century. Prior to that, the Constitution was a model for many democracies around the world.

So what has changed? Well, I think that Christina put her finger on it: There has been a much greater emphasis in other countries about these new kinds of social and economic rights, entitlements as we think of them, rights to education, to housing, to health care, to - as the U.N. Declaration of Human Rights puts it in Article 24 - periodic holidays with pay.

Now, we don't find any of those kinds of rights in our Constitution, and there's a good reason for that, namely that our Constitution was written in the context of just having overthrown, a few years before that, an oppressive government under King George III.

And so our framers were extremely interested in securing a limited government, a government of limited powers, and therefore they set about going about doing that in all the checks and balances we're familiar with.

In fact, they didn't even include a bill of rights, and it's interesting to focus on why it is that they didn't. The reason was because we have, in principle, an infinite number of rights.

Christina was mentioning the number of rights in her remarks. Well, when you think about it, and you ask how many rights are there, and you start to see how would you go about answering that, and you realize wait a minute, there are an infinite number of rights, or there is only one right, the right to be free.

And so they didn't even think about a Bill of Rights. They thought simply about limiting power, and where there is no power, there is by definition a right.

CONAN: We're talking about the United States Constitution as a model. You just heard Roger Pilon of the CATO Institute. Akhil Amar is with us from Yale and Harvard, also Christina Murray, who helped draft the constitutions of South African and Kenya. It's the TALK OF THE NATION, from NPR News.

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CONAN: This is TALK OF THE NATION, from NPR News. I'm Neal Conan. We're talking about what the U.S. Constitution has to offer new democracies as a model. This after Supreme Court Justice Ruth Bader Ginsburg suggested that Egyptians look to other countries' constitutions for inspiration.

Her comments, as you can imagine, set off some intense debate. Call and tell us what parts of the U.S. Constitution might new democracies usefully borrow or avoid.

Our guests: Christina Murray, a visiting senior fellow at the United States Institute of Peace, professor of constitutional law at the University of Cape Town in South Africa; Akhil Amar, Sterling Professor of Law and Political Science at Yale, currently visiting professor of law at Harvard; and Roger Pilon, vice president for legal affairs at the CATO Institute.

Christina Murray, we'll get to the phones in just a minute. One of the key elements of the U.S. Constitution was to avoid monarchy, to avoid the concentration of power in one man's hands. One man, at the time, was quite seriously the concern. Is that something that - as you look at other constitutions, that element has to be paramount?

MURRAY: I think that element is paramount, yes. And, of course, much of my experience is in Africa, and there, Africans have recently seen not monarchs - although there are monarchies in Africa - but presidents, usually referred to popularly as imperial presidents.

CONAN: Or presidents for life.

MURRAY: Well, imperial presidents for life, and thereafter, they hope. And so one of the sort of central tasks of constitution-making in Africa - or when civil society engages with constitution-making - is to work out ways of limiting that power.

And they do it in a number of ways: the American checks and balances I referred to, but also trying to devolve power to local communities, and I think by these expanded bills of rights - and trying to work out ways of making independent judiciaries.

CONAN: Let's see if we can get some callers in on the conversation. Pat's(ph) with us from Three Lakes in Wisconsin.

PAT: Thank you for taking my call. I have a real quick comment. I think that the Constitution of the United States would be a great template for any, any, any democracy trying to establish themselves. I would only do one thing: In the First Amendment, the Establishment Clause, I would say in order to ensure the direct separation of church and state, and then follow through with the rest of the Establishment Clause. Otherwise, we've got a great document, one of the greatest ever written by men.

CONAN: I think everybody would agree one of the great documents written by men. And Akhil Amar, should there be specificity on separation of church and state?

AMAR: I'd want to hear a lot more about what exactly that means. It means different things to different folks. For example, we have a separation of powers in the United States in which not only are members of the Executive Branch not automatically in the legislature or vice versa, you cannot be a congressperson and a Cabinet officer simultaneously. We call that separation of powers.

If you took a certain view of separation of church and state, you would say, well, you can't be both a religious - say, a priest or a pastor and also hold government office. That's a strong anti-clerical view of separation. Thomas Jefferson actually, at his worst moments, came close to that. That's not a view that I would particularly like, that kind of ultra-strict separation. I think that would end up actually being a kind of discrimination against people of faith.

So I prefer to think about the basic idea of religion as religious liberty and equality - not a preference for religion, but not a discrimination against people of faith, either.

CONAN: Roger Pilon, the immediate concern was the establishment of a state religion like the Church of England, no?

PILON: Yes. And it's interesting that the First Amendment applied only against the federal government, and that was true up until we got the Civil War Amendments. Prior to that, we had state establishment of churches in this country as late as 1836 in the Commonwealth of Massachusetts. So it was only over time that we came to appreciate some of the full implications of the principles that were set forth first in the Declaration of Independence and then in the Constitution.

And so when we look at the evolution of our own Constitution, we have to realize that there was something of a learning experience in that. But the dominant theme throughout was a concern about overweening power. That has been a concern throughout our history, but there was a great shift, and that was during the Progressive Era, when there was a fundamental change in the climate of ideas and progressives stopped thinking of government as a necessary evil, started thinking of it as an engine of good, an instrument through which to solve all kinds of problems.

And that's what we have as essentially the basis of modern constitutional law, which many of us think is very far removed from the Constitution itself. And that serves to underpin so many of the constitutional controversies that are before us today, the perfect example being the Obamacare litigation that is before the Supreme Court right now, in which the fundamental question is: Does Congress have the power to enact this kind of legislation?

It is a deeply divisive issue, and it indeed probably underpins everything else that is at issue in the country today from a constitutional perspective.

CONAN: Power to regulate interstate commerce. We'll find out, obviously, a lot more about that when the - I think in March, when the Supreme Court hears those argument.

PILON: Five-and-a-half hours of oral argument on that issue.

CONAN: Let's go to George, and George is on the line with us from Sheridan in Iowa.

GEORGE: Yeah, hi. Yeah, I'd say that our current presidential campaigns illustrate what's wrong with our democracy. I mean, our democracy is broke. And I've met with farmers from all of the Central American countries after their peace process, and they said yeah, we've got the same problem as you've got. We've got two parties. One represents one set of millionaires or billionaires, the other party represents another set of millionaires or billionaires. And the rest of us, the vast majority of us, we're not rich enough to really participate.

So if you have a limited government under that kind of situation, like we have today, a relatively few people in this country actually get to make decisions. And when push comes to shove, oh, we've got trillions of dollars to bail out the biggest, wealthiest institutions in our nation. So that's what you get when you have a limited government.

PILON: And I think it's pretty clear that there are certain rights - unlike your person says from the CATO Institute - there are some certain rights that are absolutely necessary to be spelled out.

CONAN: All right, George, thanks very much for the call. Akhil Amar, clearly the political party system is nowhere mentioned in the Constitution.

AMAR: Well, that's what's conventionally thought. I respectfully dissent from that. I have a book coming out in September called "America's Unwritten Constitution," and I have a whole chapter on how political parties are part of our Constitution from start to finish.

First of all, very strictly speaking, textually, the poll tax amendment refers to primary elections. That's the 24th Amendment, and so that's referenced. The 12th Amendment revises the presidential election system, and it does so quite emphatically to support an emerging two-party presidential system that was aborting, with Jefferson leading one party, and Adams and - leading the other party, Adams and Hamilton and Marshall.

So the original Constitution, you're right, wasn't quite contemplating a two-party system, for example, for the presidency, but the 12th Amendment was designed for exactly such a system. And, in fact, almost all the amendments that we've had since then have been actually organized by political parties.

Some - the 13th, 14th and 15th - were exactly partisan measures. Every single Republican except one voted for the 14th amendment, and every single Democrat voted against it. It was a total party measure. Thirteenth, 14th and 15th Amendments were strongly organized by parties. Our later amendments actually had been bipartisan amendments, but the party system is deeply built into how our system, in fact, work, and, in fact, if you read very carefully in the text of the amended Constitution.

CONAN: Christina Murray, sort of a different situation in South Africa, where it has been, in its early years, pretty much a one-party system, and it is beginning, some believe, to evolve into more diverse political opportunities.

MURRAY: And while the South African constitution does mention parties in small ways, it - like the American Constitution doesn't put parties up front. But doesn't that again go to the kind of ways you make choices in designing a constitution? Because, as has just been mentioned, the choice of an electoral system has immediate consequences for the kind of parties you're going to get.

Now, in South Africa, we wanted to be very sure, at the end of a violent period of history, to have a legislature that was representative of all South Africans.

So we chose the system of proportional representation. We don't have constituencies or districts - electoral districts, I think you call it - as in the United States. We have one - the country makes up one huge district, and we vote for parties. The result of that kind of system - and that we knew that when we just made the decisions in 1994 - is that even very small groups of people can be represented in our parliament.

So there you have an example of something in the constitutional design, the choice of an electoral system that, one knows in advance, is going to lead to a particular kind of party system. For us...

CONAN: Is there a trigger at which you can then join the parliament, 5 percent?

MURRAY: You - no. You need only a quarter percent of the vote to get into parliament. We have 400 seats in our parliament, so each seat needs a quarter percent of the vote, and so even very small parties, as I said, can get in.

CONAN: Doesn't that - if you get down to - well, some people look at Israel's parliamentary system and say: This is a formula for inefficiency. It requires - even a big majority vote does not get a majority of the seats because you have so many small parties in there and blocs and coalition building. Do you fear that kind of a...

MURRAY: That is perfectly possible, and it's one of the consequences of this kind of system. For us, that's quite far down the road. And...

CONAN: Yes, as you have a one-party system at the moment.

MURRAY: ...we - at the moment, the governing party has, I think, 66 percent of the vote. So, again, you make a constitutional choice. But we couldn't have gone for the American system the left(ph) part of the Constitution because we couldn't have drawn electoral districts.

CONAN: Akhil Amar, it's interesting. There was a piece by Rick Hertzberg that also criticized that same piece where Adam Liptak is getting in for a lot of shots, and he's not here to defend himself. But in any case, it talked about the experiences of South American countries, many of which adopted the U.S. Constitution much more closely than their modern equivalents and had difficult experiences with that checks and balances. The American system makes it difficult to do anything quickly, effectively, massively, unlike parliamentary systems. And you had a lot of military coups. You had a lot of presidents seizing power.

AMAR: That's a great question, and it's at the heart of very serious academic work that's been done by my colleague at Yale, Juan Linz, my another Yale colleague, Bruce Ackerman, and on the other side, my dear friend Steve Calabresi, founder of The Federalist Society.

Linz and Ackerman believe that presidential systems, in general, lead to a certain kind of gridlock: the legislature controlled by one group, the presidency by another. The president - you can't get stuff done. Presidents get frustrated, and they then resort to presidential unilateralism, and this leads to caudillos and coups. And that's what Juan Linz and Bruce Ackerman say.

And Calabresi defends the presidential system. He actually thinks that it has some real virtues. One question is whether the South American experience is distinctive in certain ways. And if you don't count the South American experience, the data are - look a little bit different. It raises the very biggest point of all. Christina Murray was talking about not just rights, but structure and parties and all the rest.

We talk a lot about the Bill of Rights, but the truth is the Bill of Rights wasn't enforced for a very long time in America. It didn't apply against states for a very long time, and yet we were free. The biggest reason Americans have been free - connected to what you were just talking about - we did not have a standing army in a very - of huge size and consequence in America in peace time until after World War II.

We did not have presidents with huge armies who could suppress citizens domestically. And that's basically a feature of our geography and our situation. In South America, they basically had presidents who used military power - these caudillos, in the Bolivar tradition - and they used armies to squash people domestically. And that's the history of a lot of the world, is executives using the military to suppress citizens.

CONAN: We're talking about the U.S. Constitution as a model. Akhil Amar is with us from Yale, also Christina Murray from the University of Cape Town in South Africa and Roger Pilon at the Cato Institute. You're listening to TALK OF THE NATION, from NPR News.

Let's go next to Joe, and Joe's with us from Buffalo.

JOE: Yes. Hello. I have a question about the U.S. Senate. One thing I would definitely not export to another country is any sort of rule that would allow a supermajority in an upper cameral legislature that would, in effect, prevent anything from getting done. I mean, our country has been locked into a vise by the so-called filibuster rule, which, to my knowledge, does not appear in the Constitution, and it was just a Senate rule that made it. I would definitely avoid any supermajority rules unless they are specifically enumerated.

CONAN: Roger Pilon, the Senate does make its own rules, and after some experience with long-winded filibusters, decided on the supermajority, 60 votes, to get cloture, as it's called. But that, again, goes to the structure of a government, which seems to be designed not to get anything through very easily.

PILON: Absolutely, and for good reason. The supermajority rule - and the number has varied over our history - is the result of the fact that the Constitution allows each house to set its own rules for internal governance. And the Senate, being the more deliberative body, has sought to establish rules that allow something to get out of the Senate only if there is a supermajority behind it.

Now, we have a lot of complaint in this country today about gridlock. People often don't understand. They want government to do things. The framers had a very different view of that. They didn't want government to do things. They wanted, as I said earlier, a limited government. They put in all those checks and balances for a reason. After all, they could have written a constitution that had only one sentence: We authorize and empower the government to do good. But they didn't. They put those checks and balances to make sure if when anything did come out of the government, it had a substantial body of opinion behind it.

CONAN: Thanks very much. That is Roger Pilon, the vice president for legal affairs at the Cato Institute, with us here in Studio 3A. Our thanks again also to Akhil Amar, sterling professor of law and political science at Yale, now a visiting professor of law at Harvard. Here with us in Studio 3A also, Christina Murray, a visiting senior fellow at the United States Institute of Peace. I forgot to ask you, is there a paid vacation in the South African constitution?

MURRAY: No. And when you mentioned it, I wished we'd thought of that.

(LAUGHTER)

CONAN: She's a professor of constitutional law at the University of Cape Town.

Coming up, Mike Nichols has won just about every major award in Hollywood and Broadway, now the director of "The Graduate," "Angels of in America" and many others is back on the great white way. He'll join us from our studios in New York. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.