Book Review: How old is your constitution?

[This isn't a strictly Southeast Asia book, but it includes several case studies from Asia, including Thailand, China, and Japan]

According to murmurs in Congress (particularly from Tom Coburn's office), there has been some debate recently about the value of political science as a discipline. As such, this seems like the perfect time for The Endurance of National Constitutions to debut. This book should be required reading for anybody in the rule of law sector, especially consultants advising governments on drafting a new constitution.

Constitutions are such a basic part of our political discourse, most of the prior scholarship has remained mired in debates over legal doctrine rather than observing the empirical data about constitutions. As such, Elkins, Ginsburg, and Melton provide the field an invaluable service with The Endurance of National Constitutions. Their study examines every single constitution written during 1789-2005 subject to a whole host of variables. In The Endurance of National Constitutions, their main concern is assessing what elements of constitutional design impact the constitution's longevity. For example, should the ideal constitution be more specific or more general in order to maintain popular and elite support? Unlike most studies about constitutions, they are less interested in "environmental" factors (e.g., wars, coups, etc.), although they do address these variables as well. 

The results are fascinating. The authors conclude that, on average, far from providing a permanent legal basis, most constitutions only last for around 19 years. They then debunk several myths about successful constitutions by showing that three variables increase constitutional endurance significantly: 1) an inclusive constitution-drafting and ratifying process; 2) flexible amendment or interpretation procedures; and 3) greater specificity and scope. Constitutions that embrace these features will tend to survive decades longer than than those that do not. Ironically, these recommendations contradict the assumptions most American lawyers possess regarding the success of the U.S. constitution. Our constitution was 1) drafted by elite property owners; 2) requires 2/3 of Congress and 3/4 of states to amend; and 3) is relatively short and general. As such, Elkins, Ginsburg, and Melton consider the U.S. an odd outlier (in their wonderful analogy, like the 122-year-old lady who smokes and whose diet consists solely of chocolates). 

The study is based on the text of the constitutions rather than other sources of constitutionalism, such as judicial interpretation of constitutions. This poses some dangers as many constitutions, particularly the U.S. Constitution, rely upon other constitutional sources to supplement the text. For example, a textual analysis of the U.S. Constitution would suggest that the federal government has few powers and could not regulate civil rights, environmental pollution, or many other fields of modern life. Yet, the Supreme Court has interpreted the seemingly lucid and innocuous word "commerce" to include all of these subjects. The authors realize this limitation and note that such as study would require far more resources and probably be impracticable. More importantly, they make a compelling case that they are primarily interested in constitutional "design," which concerns the original text. 

As comprehensive as I found the analysis of The Endurance of National Constitutions, I did wish the authors had included a few more variables. In particular, they do not compare constitutions by the host country's type of legal system (e.g., common law, civil law, communist law). Some legal scholars will rightly note that civil and common law systems are converging to some extent, but I don't think this is merely a matter of "legal taxonomy." The classification also captures something about the country's legal history (whether it was colonized by the French, British, etc.) that could conceivably have some impact on constitutional endurance. Also, there does seem to be some evidence that common law countries provide stronger protection for property rights and possess more independence courts. Knowing Elkins and Ginsburg's other articles on the question of presidential versus parliamentary systems, I suspect they may not find the common/civil/communist law distinctions analytically useful, but it probably should have been addressed somewhere in the book. 

I also would have liked to have seen a bit more about the mode and median of constitutional endurance, rather than just the mean. This is especially crucial in this study because, as it turns out, the relatively small and insignificant Hispaniola (Haiti and the Dominican Republic) has produced some 7% of the world's constitutions since 1789. In other words, these two outliers produce so many constitutions that they can affect global averages. The authors do discuss this issue in some places, but it's important enough that it might even have been worth calculating the correlations both with all constitutions in the dataset and with the outliers or extremes removed. I suspect that without Hispaniola in the dataset, the average lifespan of a constitution would be at least a bit longer. 

Make no mistake - The Endurance of National Constitutions is probably the most important scholarly book about constitutions to come out in quite some time. Fortunately, the authors promise that The Endurance of National Constitutions is only the first book of several that they plan to release in conjunction with their Comparative Constitutions Project. In the meantime, this book will give you plenty to think about. If you haven't decided what to get for Christmas yet, I'd definitely recommend this book.