“We the People of the United States, in Order to form a more perfect Union, establish justice, Insure domestic Tranquility for the common defense, promote the general welfare, and secure the Blessings of Liberty to ourselves and our Posterity…”
With these words, the United States of America explained their intent and reasoning to make the US Constitution and solidified one of the most historic pieces of political literature as the framework for many nations to come. However, according to New York University Law Review study “The Declining Influence of the U.S. Constitution” the predominance of America over international constitutions has been declining over the past 25 years. America is no longer the model of social inclusion, human rights, nor domestic care. This article explores why that is so, based off the findings of the NYU Law study and other recent articles.
The U.S. Constitution has had a vast impact on the progression of constitutionalism and pioneered revolutions such as judicial review, entrenchment against legislative change, and the very idea of written constitutionalism. According to the study, almost 90% of all countries possess written constitutional documents backed by some kind of judicial enforcement. However, judicial review and enforcement vary depending on the country and has fueled different era of political controversy, like times today.
Topics such as police brutality, equal rights for men and women, marriage equality, and freedom of expression have all been intense topics of conversations within the last 10 years, and many argue whether the Constitution justifies recent reform. Not one woman or person of color weighed in on the original Constitution and yet today 49.6% of the US population is female and roughly 40% are people of color and yet America still prides itself on only making 27 amendments, last of which was in 1992, to a 229 year old document that is supposed to represent a country that in which our forefathers never dreamed nor wanted to be possible. Whereas the average constitution has a 38% chance of being revised in any given year and is replaced every 19 years, the U.S. Constitution has survived over two centuries. Therefore, critics argue that the U.S. Constitution is in many ways is “dysfunctional, antiquated and sorely in need of repair.”
America has failed to evolve with the majority of the world on the issues of human rights. The Constitution and the Bill of Rights both provide a broad protection of basic human rights. Many of these rights are equivalent to rights found in the Universal declaration of Human Right (UDHR), especially those related to political and civil liberties. Despite said protections, the legal system fails to recognize all the economic, social, and cultural rights guaranteed in the UDHR. For example, some civil liberties such as the right to education, can be found in some state constitutions like the “No Child Left Behind” Initiative; others, such as the right to an adequate standard of living including food, shelter, and medical care, have not been recognized as rights. Yet countries such as the United Kingdom, France, Germany, and have free health care and a higher education system that does not bankrupt its students. According to the study, the U.S. Constitution guarantees fewer rights compared to a “generic bill of rights” found in more than 70% of the world’s constitutions as of 2006. “U.S. Constitution is, instead, rooted in a libertarian constitutional tradition that is inherently antithetical to the notion of positive rights.”
Let’s take or example, the issue of food and nationwide hunger, state wide statutes may address issues such as food and hunger but overall they do not recognize food as a right that people are entitled. Many will argue that food stamps and other welfare resources prove this not to be true however these services have limitations and still is not defined as fulfilling a mandated law of service. Understand that economic, social, and cultural issues are not viewed as rights enjoyed by all. Public policies can exclude people from eligibility as long as they do not discriminate on prohibited grounds such as race. While ensuring that public policies are not discriminatory is important, it does not address the underlying problem of failing to guarantee for all people in the United States an adequate standard of living and other rights necessary to live in dignity.
Constitutional interpretation plays a key role when granting right to citizen not explicitly written down. Take for instance the abolition of slavery. The 13th amendment states, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, nor any place subject to their jurisdiction.” On one hand the purchasing and selling of human cargo ceased, and the individual ownership of a human being was no lingered allowed. However, instead of personal ownership slavery remained under federal jurisdiction and was renamed, “punishment of a crime.” Legally, the government can require labor from its prisoners, and modern day slavery through the prison pipeline was born. Meaning, although a law claims to fight against or for an injustice, it can be interpreted to combat the very entity or right it sought out to protect.
Overall, the analysis of this study and recent articles suggest “that the U.S. Constitution appears instead to be losing its appeal as a model for constitutional drafters elsewhere.” Research suggests that Canada’s constitution, revised in 1982, is now a leading international model rather than that of the United States.
Law, David S.; Versteeg, Mila. “The Declining Influence of the United States Constitution,” New York University Law Review, June 2012, Vol. 87, No. 3, 762-858.
http://www.theadvocatesforhumanrights.org/human_rights_and_the_united_states#US Constitution and UDHR