Unpopular constitutionalism

Indiana Law Journal

Volumn 89, Issue 3, 2014, Pages 1133-1190

  Versteeg, Mila ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84899066291     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (176)

1. World Values Survey Ass'n, World Values Survey 1981-2008 Official Aggregate V. 20090901(2009), http://www.wvsevsdb.com/wvsAWSData.jsp; see infra Table 1 for details on the survey question related to homosexuality.
2. S. AFR. CONST., 1996 § 9 (3) ("The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.").
3. ROYAUME DU MAROC [CONSTITUTION], Sept. 13, 1996, art. 14 (Morocco) ("The right of strike shall be guaranteed.").
4. See A. V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 22 (8th ed. 1915) (defining a constitution as "all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state").
5. For the purpose of the analysis presented in this Article, the following documents were considered to be constitutional ones: Magna Carta, 1297, 25 Edw. 1, cc. 1, 9, 29;
6. Habeas Corpus Act, 1640, 16 Car. 1, c. 10;
7. Habeas Corpus Act, 1679, 31 Car. 2, c. 2;
8. Bill of Rights, 1689, 1 W. & M, c. 2;
9. Parliament Act, 1911, 1 & 2 Geo. 5, c. 13;
10. Human Rights Act, 1998, c. 42;
11. Freedom of Information Act, 2000, c. 36.
12. See Federico Fabbrini, Europe in Need of a New Deal: On Federalism, Free Market, and the Right to Strike, 43 GEO. J. INT'L L. 1175, 1191-94 (2012) (describing the U. K. government's refusal to recognize the strike as a right, instead of treating it as a statutory freedom).
13. LIETUVOS RESPUBLIKOS KONSTITUCUA [CONSTITUTION], Oct. 25, 1992, art. 53 (Lith.) ("The State and each person must protect the environment from harmful influences."); id. art. 54 ("The State shall take care of the protection of the natural environment, wildlife and plants, individual objects of nature and areas of particular value and shall supervise a sustainable use of natural resources, their restoration and increase.").
14. See, e.g., THE DECLARATION OF INDEPENDENCE para. 2 (U. S. 1776) ("We hold these truths to be self-evident⋯. That⋯ [governments⋯ deriv[e] their just powers from the consent of the governed⋯.").
15. Denis J. Galligan, The Sovereignty Deficit in Modern Constitutions, 33 OXFORD J. LEGAL STUD. 702, 707 (2013) (showing that a majority of democratic constitutions are proclaimed in the name of the people).
16. See Tom Ginsburg, Zachary Elkins & Justin Blount, Does the Process of Constitution-Making Matter?, 5 ANN. REV. LAW & SOC. SCI. 201, 207 fig.l (2009) (documenting, empirically, that over 40% of all constitutions today require approval by popular referendum).
17. See, e.g., BEAU BRESLIN, FROM WORDS TO WORLDS: EXPLORING CONSTITUTIONAL FUNCTIONALITY 5 (2009) (noting that the primary function of constitutions is to "imagine and then help to realize a shared collective existence");
18. ZACHARY ELKINS, TOM GINSBURG & JAMES MELTON, THE ENDURANCE OF NATIONAL CONSTITUTIONS 38 (2009) (noting that a "function that constitutions serve is the symbolic one of defining the nation and its goals");
19. VICKI C. JACKSON, CONSTITUTIONAL ENGAGEMENT IN A TRANSNATIONAL ERA 155 (2009) (describing constitutions as "forms of national self-expression, providing the framework for the working out within a particular 'nomos' of its contests, commitments, and identity" (citation omitted));
20. GARY JACOBSOHN, CONSTITUTIONAL IDENTITY 3 (2010) (arguing that one of the core functions of constitutional law is to articulate the nation's distinct identity);
21. MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 14 (2008) ("Expressivism suggests that a nation has a (single) self-understanding that its constitution expresses." (emphasis in original));
22. Geoffrey Brennan & Alan Hamlin, Constitutions as Expressive Documents, in THE OXFORD HANDBOOK OF POLITICAL ECONOMY 329, 333-38 (Barry Weingast & Donald A. Wittman eds., 2006) (emphasizing that written constitutions express national self-understanding);
23. Seth F. Kreimer, Invidious Comparisons: Some Cautionary Remarks on the Process of Constitutional Borrowing, 1 U. PA. J. CONST. L. 640, 648-50 (1999) (suggesting that, amongst other things, constitutions serve to express national identity);
24. H. W. O. Okoth-Ogendo, Constitutions Without Constitutionalism: Reflections on an African Political Paradox, in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD 65, 65-66 (Douglas Greenberg et al. eds., 1993) (noting that constitutions are inextricably linked to sovereignty and proclaim the nation's highest values).
25. LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW passim (2004) (suggesting that "popular constitutionalism" entails a continuous involvement of the people in the writing, interpretation, and implementation of the constitutional document).
26. See, e.g., Laurence H. Tribe, The People's Court, N. Y. TIMES, Oct. 24, 2004, at A32 (suggesting that giving people the last word over the constitution is "taking the law out of constitutional law" and "if constitutional law were but a vessel into which the people could pour whatever they wanted it to contain at any given moment" the whole point of framing a constitution will be lost).
27. See, e.g., 1 BRUCE ACKERMAN, WE THE PEOPLE 6 (1991).
28. Id. (emphasizing that constitutions are written by the people, while ordinary legislation is written by the people's elected representatives); see also JOHN FINN, CONSTITUTIONS IN CRISIS: POLITICAL VIOLENCE AND THE RULE OF LAW 5 (1991) (quoting John Potter Stockton's position in debates over the Ku Klux Klan Act of 1871: "[constitutions are chains with which men bind themselves in their sane moments that they may not die by a suicidal hand in the day of their frenzy" (citation omitted));
29. Jon Elster, Intertemporal Choice and Political Thought, in CHOICE OVER TIME 35, 35-45 (George Loewenstein & Jon Elster eds., 1992) (conceptualizing constitutional commitment as a time inconsistency problem whereby rational pre-commitments enshrined in the constitution are to govern later moments of fear and passion).
30. STEPHEN HOLMES, PASSION AND CONSTRAINT: ON THE THEORY OF LIBERAL GOVERNMENT 135 (1995) (suggesting that the constitution represents "Peter sober" while ordinary legislation represents "Peter drunk").
31. See Jared A. Goldstein, Can Popular Constitutionalism Survive the Tea Party Movement?, 105 NW. U. L. REV. COLLOQUY 288, 292 (2011) ("The Tea Party movement locates the fundamental principles that form the American character in the Constitution, and it argues that only a revival of these principles can save the nation from ruin. " (citation omitted)).
32. See Phoebe King, Neo-Bolivarian Constitutional Design, in THE SOCIAL AND POLITICAL FOUNDATIONS OF CONSTRRUNONS 366, 367 (Denis Galligan & Mila Versteeg eds., 2013) (describing the recent constitutions of Venezuela, Ecuador, and Bolivia as radical populist documents).
33. See, e.g., Robert Post, Theories of Interpretation, 30 REPRESENTATIONS 13, 29 (2009) (describing all of U. S. constitutional interpretation as a "characterization of the national ethos");
34. see also Robert Leider, Our Non-Originalist Right to Bear Arms, 89 IND. L. J. (forthcoming 2014).
35. U. S. Const, pmbl.
36. Jeff King, Constitutions as Mission Statements, in THE SOCIAL AND POLITICAL FOUNDATIONS OF CONSTITUTIONS, supra note 24, at 73, 81 (suggesting that constitutions are like "mission statements" that articulate the "core, constitutive political commitments of the community" and "express the political ideas that animate the constitution and polity more broadly, including⋯ the values it seeks to respect in its state planning").
37. Kevin L. Cope, South Sudan's Dualistic Constitution, in THE SOCIAL AND POLITICAL FOUNDATIONS OF CONSTITUTIONS, supra note 24, at 295, 314 (noting that the preamble is the part where the new South Sudanese Constitution expresses constitutional identity);
38. Denis Galligan & Mila Versteeg, Theoretical Perspectives on the Social and Political Foundations of Constitutions, in THE SOCIAL AND POLITICAL FOUNDATIONS OF CONSTITUTIONS, supra note 24, at 3, 10 (identifying preambles as a forum to express national values);
39. Mark Tushnet, Some Reflections on Method in Comparative Constitutional Law, in THE MIGRATION OF CONSTITUTIONAL IDEAS 67, 79 (Sujit Choudhry ed., 2006) ("Preambles to constitutions may be particularly useful for an expressivist.").
40. A MAGYAR KOZTARSASAG ALKOTMANYA [CONSTITUTION OF THE REPUBLIC OF HUNGARY], pmbl.
41. KONSTYTUCJA RZECZYPOSPOLITEJ POLSKIEJ [CONSTITUTION] Apr. 2, 1997, pmbl. (Pol).
42. QANUNI ASSASSI JUMHURH ISLAMAI IRAN [THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF IRAN] 1358 [1980], pmbl.
43. XIANFA pmbl. (1978) (China).
44. See Tom Ginsburg, Nick Foti & Daniel Rockmore, "We the Peoples": The Global Origins of Constitutional Preambles 1, 7 (2012) (unpublished manuscript) (on Gle with author) (finding that preambles do not only express national values, but also contain more internationalist statements).
45. See NATHAN J. BROWN, CONSTITUTIONS IN A NONCONSTITUTIONAL WORLD: ARAB BASIC LAWS AND THE PROSPECTS FOR ACCOUNTABLE GOVERNMENT 11 (2002) (noting that "lengthy sections describing the basic goals, ideology, or the program of the state", as in preambles, "may be sincere when issued but are too vaguely worded to bear much legal weight; they are not designed to limit the government"); Ginsburg, supra note 40, at 4 (surveying preambles in the world's constitutions and finding that most preambles are not justiciable). The notable exception is the preamble of the 1958 Constitution of France. See Conseil constitutionnel [CC] [Constitutional Court] decision No. 71-44 DC, July 16, 1971, J. O. 7114 (Fr.) (declaring the French Declaration of the Rights of Man and the preamble of the 1946 Constitution of France to be part of the 1958 preamble, and declaring the preamble to be justiciable).
46. Alda Sigmundsdottir, Iceland Elects Ordinary Folk to Draft Constitution, BOSTON. COM, Nov. 26, 2010, http://www.boston. com/news/world/europe/articles/ 2010/11/26/iceland-elects-ordinary-folk-to-draft-constitution/.
47. See generally Jennifer Widner, Constitution Writing & Conflict Resolution: Data & Summaries, PRINCETON U. (Aug. 2005), http://www. princeton. edu/~pcwcr/about/index.html (describing the importance of directly elected constitutional assemblies).
48. Erik Martinez Kuhonta, The Paradox of Thailand's 1997 "People's Constitution": Be Careful What You Wish For, 48 ASIAN SURV. 373 (2008) (describing the process of adopting Thailand's "People's Constitution");
49. Bereket Habte Selassie, Constitution Making in Eritrea: A Process-Driven Approach, in FRAMING THE STATE IN TIMES OF TRANSITION: CASE STUDIES IN CONSTITUTION MAKING 57, 61-65 (Laurel E. Miller ed., 2010) (describing the widespread popular involvement in the drafting of the 1997 Eritrea constitution);
50. Aili Mari Tripp, The Politics of Constitution Making in Uganda, in FRAMING THE STATE IN TIMES OF TRANSITION, supra, at 158, 165-69 (describing the substantial involvement of an elected "constituent assembly" in the writing of the 1995 Ugandan constitution).
51. See Hassen Ebrahim & Laurel E. Miller, Creating the Birth Certificate of a New South African: Constitution Making After Apartheid, in FRAMING THE STATE IN TIMES OF TRANSITION, supra note 46, at 111, 133-39 (recounting the widespread popular participation in the making of the 1994 South African Constitution, which was "distinguishing⋯ and from comparative constitutionalist perspective, precedent-setting");
52. Anne Meuwese, Popular Constitution-Making: The Case of Iceland, in THE SOCIAL AND POLITICAL FOUNDATIONS OF CONSTITUTIONS, supra note 24, at 469, 476-89 (describing the widespread popular involvement in the writing of the Iceland Constitution, from the involvement of 1000 randomly elected citizens, to the elected constitutional assembly and the use of Facebook and Twitter to get popular input).
53. See Richard H. Solomon, Foreword to FRAMING THE STATE IN TIMES OF TRANSITION, supra note 46, at xi, xi;
54. see also Louis Aucoin, Introduction to FRAMING THE STATE IN TIMES OF TRANSITION, supra note 46, at xiii, xiii (suggesting that there exists "an emerging international norm that constitution-making processes should be democratic, transparent, and participatory");
55. Thomas M. Franck & Arun K. Thiruvengadam, Norms of International Law Relating to the Constitution-Making Process, in FRAMING THE STATE IN TIMES OF TRANSITION, supra note 46, at 3, 8 (suggesting the existence of a "new approach" to constitution making that started in Africa in the 1990s and "emphasizes participation and puts great premium on dialogue, debate, consultation, and participation");
56. Vivien Hart, Constitution Making and the Right to Take Part in a Public Affair, in FRAMING THE STATE IN TIMES OF TRANSITION, supra note 46, at 20, 20 (suggesting that "[traditionally, negotiating a constitution was the province of political leaders who held power" while "[djrafting the constitutional text was expert work" but that there has been a "significant change" toward more popular participation).
57. Daniel Lansberg-Rodriguez, Wiki-Constitutionalism, NEW REPUBLIC (May 25, 2010, 12:00 AM), http://www.tnr.com/article/politics/75150/wiki- constitutionalism ("Latin American leaders have discovered that, by packaging ever-longer lists of promises and rights alongside greater executive functions, they can make a new constitution appealing enough to the masses that they will vote for it in a referendum.").
58. PETER EMERSON, DEFINING DEMOCRACY 144 (2d ed. 2012) (noting that, "just to make it all democratic", a referendum was introduced in 1804 to approve Napoleon as emperor).
59. See HEINZ KLUG, CONSTITUTING DEMOCRACY: LAW, GLOBALISM AND SOUTH AFRICA'S POLITICAL RECONSTRUCTION 7 (2000).
60. See Richard Cameron Blake, The Frequent Irrelevance of US Judicial Decisions in South Africa, 15 S. AFR. J. HUM. RTS. 192, 198 (1999) (describing the South African constitution of 1996 as a "product of other nations' constitutions⋯ and contemporary human rights conventions" (citation omitted)).
61. David S. Law, The Myth of the Imposed Constitution, in THE SOCIAL AND POLITICAL FOUNDATIONS OF CONSTITUTIONS, supra note 24, at 239, 263 (suggesting, based on historical opinion poll data, that the Japanese Constitution closely resembles popular values, but not the values of the ruling elites at the time).
62. For an introduction to the cultural relativism debate, compare infra Part VLB, with Josiah A. M. Cobbah, African Values and the Human Rights Debate: An African Perspective, 9 HUM. RTS. Q. 309, 322-29 (1987) (describing an "African worldview" and how it shapes African conceptions of rights that are more communitarian in character)
63. and Bilahari Kausikan, Asia's Different Standard, 92 FOREIGN POL'Y 24, 34-40 (1993) (suggesting that human rights are merely Western rights and articulating a distinct Asian perspective on rights that emphasizes socioeconomic rights over civil and political freedoms).
64. David D. Kirkpatrick, Cultural Clash Fuels Muslims Raging at Film, N. Y. TIMES, Sept. 17, 2012, at A1 (describing the widespread protests as a clash of values between the freedom of expression in the "individualistic West" and religious values in the Arab world).
65. Mutual Incomprehension, Mutual Outrage, ECONOMIST, Feb. 11, 2006, at 26 (describing the violent protests that followed publication of these cartoons in a Danish newspaper).
66. See Editorial, President Obama at the U. N., N. Y. TIMES, Sept. 26, 2012, at A26 (noting that President Obama contended that "the strongest weapon against hateful speech is not repression; it is more speech").
67. Neil MacFarquhar, At U. N., Egypt and Yemen Urge Curbs on Free Speech, N. Y. TIMES, Sept. 27, 2012, at A10.
68. See VENICE COMMISSION, BLASPHEMY, INSULT AND HATRED: FINDING ANSWERS IN A DEMOCRATIC SOCIETY 11 (2010) (describing how the freedom of expression under the European Convention on Human Rights does not extend to hate speech).
69. See Ronald Sokol, Op-Ed., Is It a Crime or an Idiocy?; Holocaust Denial, INT'L HERALD TRIB., Jan. 20, 2007, at 5, available at http://www.nytimes.com/ 2007/01/19/opinion/19iht-edsokol.4264282.html (describing how Holocaust denial is a criminal offense in most European countries, and noting how the United States takes a different position).
70. Sean Dodson, The Very Long Arm of the Law, GUARDIAN (Nov. 9, 2001, 1:15 PM), http://www.theguardian. com/technology/2001/nov/09/internetnews (describing how Yahoo was prohibited from selling Nazi paraphernalia in France and how eBay followed Yahoo's lead in removing items from its website).
71. See generally Frederick Schauer, The Exceptional First Amendment, in AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS 29, 31 (Michael Ignatieff ed., 2005) (describing the United States as an outlier in its protection of free speech, and noting that "much of the rest of the developed democratic world" has after careful consideration "deliberately chosen a different course").
72. See The Islamic Veil Across Europe, BBC NEWS (Sept. 22, 2011, 5:20 PM), http://www.bbc.co.uk/news/world-europe-13038095 (reporting that legislation has been passed in France and Belgium that prohibits women from wearing a full-face Islamic veil);
73. Bruno Waterfield, Netherlands to Ban the Burka, TELEGRAPH (Sept. 15, 2011, 5:40 PM), http://www.telegraph.co.uk/news/worldnews/europe/netherlands/ 8765673/Netherlands-to-ban-the-burka.html (describing similar legislation in the Netherlands).
74. Mark McGivern, Two Women Arrested in Paris for Defying Ban on Islamic Veils, DAILY REC. (Apr. 12, 2011), http://www.dailyrecord.co.uk/news/uk-world- news/two-women-arrested-in-paris-for-defying-1100115.
75. David Mitchell, Op-Ed., If Britain Decides to Ban the Burqa Then I Might Just Start Wearing One, OBSERVER, July 25, 2010, http://www.guardian. co.uk/commentisfree/2010/jul/25/david-mitchell-burqa-ban-tattoos.
76. See US Reiterates Disappointment over French Burqa Ban, FRANCE 24, July 15, 2010, http://www.france24.com/en/20100715-usa-tells-france-not-ban-burqa- senate-bill-washington.
77. French Senate Approves Burqa Ban, CNN (Sept. 15, 2010, 5:17 AM), http://articles.cnn. com/2010-09-14/world/france.burqa.ban-l-burqa-overt- religious-symbols-ban-last-year?-s=PM:WORLD (citing opinion poll data).
78. IR. CONST., 1937, pmbl.
79. See Who Are We, WOMEN ON WAVES, http://www.womenonwaves.org/en/page/650/ who-are-we.
80. See Pedro C. MagalhSes, Explaining the Constitutionalization of Social Rights: Portuguese Hypotheses and a Cross-National Test, in THE SOCIAL AND POLITICAL FOUNDATIONS OF CONSTITUTIONS, supra note 24, at 432, 443-49 (describing the origins of Portugal's elaborate socioeconomic rights provisions and attributing them to "the Portuguese legal tradition" and deeply held "values of social Catholicism").
81. See Frank I. Michelman, The Protective Function of the State in the United States and Europe: The Constitutional Question, in EUROPEAN AND US CONSTITUTIONALISM 131, 134 (Georg Nolte ed., 2005) (contrasting the state action doctrine in the United States with notions of protective duties in Europe).
82. See DeShaney V. Winnebago Cnty. Dep't of Soc. Servs., 489 U. S. 189 (1989) (setting forth the state action doctrine in U. S. constitutional law).
83. LOUIS HARTZ, THE LIBERAL TRADITION IN AMERICA 6 (2d ed. 1991).
84. David S. Law & Mila Versteeg, The Evolution and Ideology of Global Constitutionalism, 99 CALIF. L. REV. 1163, 1221-26 (2011) (finding that some constitutions are distinctly libertarian in character, while others are more statist in nature).
85. See John Boli, Human Rights or State Expansion? Cross-National Definitions of Constitutional Rights, 1870-1970, in INSTITUTIONAL STRUCTURE: CONSTITUTING STATE, SOCIETY AND THE INDIVIDUAL 133, 138 (George M. Thomas et al. eds., 1987) (arguing that, for constitutions, "there is considerable uniformity in their structure" but that "[t]here is much less uniformity in their content").
86. This data was first introduced in Benedikt Goderis & Mila Versteeg, The Transnational Origins of Constitutions: An Empirical Analysis, Sixth Annual Conference on Empirical Legal Studies (Nov. 4, 2011) (unpublished manuscript) (on file with the authors), available at http://ssm.com/abstracM 865724
87. The 2006-2012 portion of the data was collected and introduced by David S. Law & Mila Versteeg, Sham Constitutions, 101 CALIF. L. REV. 863 (2013).
88. Mark Tushnet, Comparative Constitutional Law, in THE OXFORD HANDBOOK OF COMPARATIVE LAW 1225, 1231 (Mathias Reimann & Reinhard Zimmermann eds., 2007) (distinguishing first-generation "classical rights to civil and political participation, and to equality", from "second generation" social and economic rights for individuals).
89. For documentation and online analysis of the World Values Survey data, see WORLD VALUES SURVEY (2012), http://www.worldvaluessurvey.org/.
90. See Ronald Inglehart, Foreword to VALUES CHANGE THE WORLD (2008) (describing the infrastructure of the World Values Survey).
91. I integrated the World Values Survey data with data from the European Values Study that conducted the exact same survey in an additional set of European countries. For a full overview of all countries, see INTEGRATED EVS/WVS 1981-2008 DATAFILE, http://www.wvsevsdb.com/wvs/WVSIntegratedEVSWVS.jsp?Idioma= I. Combined, these two surveys cover ninety countries, conducted in six waves, in the periods from 1981-1984, 1989-1993, 1994-1999, 1999-2004, 2005-2006, and 2008-2010.
92. World Values Survey Ass'n, supra note 1.
93. Kamer Voor Seksuele Geaardheid in Artikel I Growndwet [Dutch Parliament Supports Inclusion of Equality Regardless of Sexual Orientation in Article 1 Constitution], TROUW, (Mar. 8, 2012, 11:30 AM), http://www.trouw.nl/tr/nl/4492/ Nederland/article/detail/3295998/2012/08/03/Kamer-voor-seksuele-geaardheid-in- artikel-1-grondwet.dhtml.
94. Anne Meuwese & Mila Versteeg, Quantitative Methods for Comparative Constitutional Law, in PRACTICE AND THEORY IN COMPARATIVE LAW 230, 233 (Maurice Adams & Jacco Bomhoff eds., 2012) (discussing the difficulty of distinguishing correlation from causation).
95. See Nathaniel Persily, Introduction to PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 3 (Nathaniel Persily, Jack Citrin & Patrick J. Egan eds., 2008) (suggesting that, in theory, constitutional law may change popular opinion, but rinding little empirical support for such a hypothesis in the United States).
96. See The Integrated EVS/WVS 1981-2008 Datafile, WORLD VALUES ASS'N, http://www.wvsevsdb.com/wvsAWSIntegrated EVSWVS.jsp?Idioma=I (describing when each of the waves of data collection took place). As a robustness check, I also repeated the same model when observing each country at fiveyear intervals in 1981, 1986, 1991, 1996, 2001, 2006, and 2010. When doing so, the results are almost the same as those reported below.
97. See Monty G. Marshall & Keith Jaggers, Polity IV Project: Dataset User's Manual (Oct. 24, 2007), http://home.bi.no/a0110709/PolityIV-manual.pdf.
98. My measure of gross domestic product (GDP) per capita comes from WORLD BANK, WORLD DEVELOPMENT INDICATORS 2011 (2011).
99. I adopted the definition of "common law" countries used by Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer & Robert Vishny, The Quality of Government, 15 J. L. ECON. & ORG. 222 (1999).
100. See David L. Cingranelli & David L. Richards, Measuring Government Effort to Respect Economic and Social Human Rights: A Peer Benchmark, in ECONOMIC RIGHTS: CONCEPTUAL, MEASUREMENT, AND POLICY ISSUES 214, 215 (Shareen Hertel & Lanse Minkler eds., 2007) (observing that it is difficult for countries to improve their performance in the areas of economic and social rights in a measurable way without "getting richer").
101. See 1 FRIEDRICH A. HAYEK, LAW, LEGISLATION AND LIBERTY: A NEW STATEMENT OF THE LIBERAL PRINCIPLES OF JUSTICE AND POLITICAL ECONOMY 94 (1978) (noting that negative liberties "have flourished chiefly among people where, at least for long periods, judge-made law predominated");
102. Paul Mahoney, The Common Law and Economic Growth: Hayek Might Be Right, 30 J. LEGAL STUD. 503, 506 (2001) (finding empirical evidence of a positive relationship between use of a common law system and economic growth, and attributing this relationship at least partly to the "greater judicial protection of property and contract rights from executive interference" that characterizes common law systems); La Porta et al., supra note 105 (finding that common law countries exhibit greater respect for political rights than countries of other legal origins).
103. See Karim Fahim & Mayy El Sheikh, First Round of Voting Spurs Dispute in Egypt, N. Y. TIMES, Dec. 17, 2012, at A13 (quoting one of the members of the Constitutional Assembly as saying that the new Egyptian Constitution would need a two-thirds majority to be legitimate).
104. See David S. Law & Mila Versteeg, The Declining Influence of the U. S. Constitution, 87 N. Y. U. L. REV. 763, 765 (2012) (describing how the U. S. Constitution is unusual from a global perspective).
105. Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in THE PAPERS OF THOMAS JEFFERSON 392, 392 (Julian P. Boyd ed., 1958); (stating the self-evident proposition that "the earth belongs in usufruct to the living");
106. See Gerald L. Blasi & David Louis Cingranelli, Do Constitutions and Institutions Help Protect Human Rights?, in HUMAN RIGHTS AND DEVELOPING COUNTRIES 223, 225-26 (Stuart S. Nagel & David Louis Cingranelli eds., 1996) (summarizing the relevant literature).
107. See Michael Dorf, The Aspirational Constitution, 77 GEO. WASH. L. REV. p1632 (2009) (describing the concept of an "aspirational constitution").
108. Joel Ross, Andrew Zaldivar, Lilly Irani, Bill Tomlinson & M. Six Silberman, Who Are the Crowdworkers? Shifting Demographics in Mechanical Turk, in CHI '10 EXTENDED ABSTRACTS ON HUMAN FACTORS IN COMPUTING SYSTEMS 2863, 2863-64 (2010) (describing the basic principles of Amazon's crowd-sourced virtual workplace).
109. See, e.g., Michael Buhrmester, Tracy Kwang & Samuel D. Gosling, Amazon's Mechanical Turk, A New Source of Inexpensive Yet High-Quality Data?, 6 PERSP. ON PSYCHOL. SCI. 1, 3 (2011) (suggesting that Mechanical Turk yields inexpensive but high-quality data for psychology researchers that is more demographically diverse that most internet surveys).
110. See Michael J. Klarman, Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman's Theory of Constitutional Moments 44 STAN. L. REV. 759, 764, 776-92 (1992) (noting that "Ackerman assumes rather than demonstrates the existence of constitutional moments" and showing, based on historical research, the American Founding was not free of political self-interest);
111. András Sajó, Constitution without the Constitutional Moment: View from the New Member States, 3 INT'L J. CONST. L. 243, 243 (2005) (noting that the constitutions of the United States, Belgium, and maybe post-apartheid South Africa were written during a constitutional moment, but that the "overwhelming majority" of constitutions were not).
112. RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTRRUNONALISM passim (2004) (describing constitution-making as a product of "self-preservation" by hegemonic elites).
113. See generally Zachary Elkins, Tom Ginsburg & James Melton, Baghdad, Tokyo, Kabul⋯: Constitution Making in Occupied States, 49 WM. & MARY L. REV. 1139 (2008).
114. See generally AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS, supra note 65 (describing how the United States is a global outlier in free speech, the death penalty, and socioeconomic rights, amongst other things).
115. See Hartz, supra note 79, at 6 (explaining the distinctly libertarian constitutional tradition of the United States); EMILY ZACKDM, LOOKING FOR RIGHTS IN ALL THE WRONG PLACES: WHY STATE CONSTITUTIONS CONTAIN AMERICA'S POSITIVE RIGHTS 12 (2013) (noting that the conventional wisdom about the American constitutional tradition is that "protective and redistributive policies are questions of majoritarian choice, not matters of constitutional duty");
116. Frederick Schauer, The Exceptional First Amendment, in AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS 46 (Michael Ignatieff ed., 2005) ("American distrust of government is a contributing factor to a strongly libertarian approach to constitutional rights. Hie Constitution of the United States is a strongly negative constitution, and viewing the constitution as the vehicle for social rights, community rights, or positive citizen entitlements of any kind is⋯ highly disfavored.");
117. Dieter Grimm, The Protective Function of the State, in EUROPEAN AND U. S. CONSTTTUTIONAUSM, supra note 77, at 119 (noting that negative rights characterize the U. S. constitutional tradition and attributing this to America's lack of feudalism).
118. Cf. Mila Versteeg & Emily Zackin, American Constitutional Exceptionalism Revisited (2014) (unpublished manuscript) (on file with author) (showing empirically that many U. S. state constitutions do include socioeconomic rights).
119. In general, the results from the Mechanical Turk survey are fairly similar to the results from the World Values Survey. Note that with a fully random sample, and a survey size of 522 American respondents, there would have been a margin of error of 4.3%. See Sample She Calculator, SURV. SYS., http://www.surveysystem.com/sscalc.htm.
120. See David A. Fahrenthold & Jon Cohen, Record Support for Gay Marriage, WASH. POST, March 19, 2013, at Al (documenting that 41% of Americans supported gay marriage in 2004, 36% supported gay marriage in 2006, and 58% supported gay marriage in 2013). In fact, the 73% support measured in my survey is larger than both the 58% in the Washington Post survey and the 30% support measured by the World Values Survey in 2006.
121. See Kevin L. Cope, The Global Relevance of U. S. Constitutional Law (2012) (unpublished manuscript) (on file with author) (describing the cases in which the Supreme Court recognized a protection of marriage and a prohibition of gender discrimination in labor by the government).
122. 133 S. Ct. 2675 (2013).
123. See generally ROBERT D. COOTER, THE STRATEGIC CONSTITUTION (2000).
124. On the "science" of constitutional design, see DONALD S. LUTZ, PRINCIPLES OF CONSTITUTIONAL DESIGN (2006);
125. Ran Hirschl, The "Design Sciences" and Constitutional "Success", 87 TEX. L. REV 1339 (2009).
126. TORSTEN PERSSON & GUIDO TABELLINI, THE ECONOMIC EFFECTS OF CONSTITUTIONS (2003).
127. For the view that bills of rights promote liberty, see, for example, PROMOTING HUMAN RIGHTS THROUGH BILLS OF RIGHTS: COMPARATIVE PERSPECTIVES (Philip Alston ed., 1999).
128. For the view that constitutions can design democracy, see, for example, CASS R. SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTTTUTIONS DO (2001).
129. For the view that constitutions can mitigate conflict in divided societies, see, for example, CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETY: INTEGRATION OR ACCOMMODATION? (Sujit Choudhrey ed., 2008);
130. Donald L. Horowitz, Conciliatory Institutions and Constitutional Processes in Post-Conflict States, 49 WM. & MARY L. REV. 1213 (2008);
131. Arend Lijphart, Constitutional Design for Divided Societies, 15 J. DEMOCRACY 96 (2004).
132. See Peter C. Ordeshook, Are 'Western' Constitutions Relevant to Anything Other than the Countries They Serve?, 13 CONST. POL. ECON. 3, 3 (2002) ("There necessarily exists universal principles of democratic constitutional design, even if those principles remain largely undiscovered.").
133. Tom Ginsburg, Constitutions as Contract, Constitutions as Charters, in THE SOCIAL AND POLITICAL FOUNDATIONS OF CONSTTTUTIONS, supra note 24, at 182, 196 (describing boilerplate constitutional provisions).
134. Benedikt Goderis & Mila Versteeg, Transnational Constitutionalism: A Conceptual Framework, in THE SOCIAL AND POLITICAL FOUNDATIONS OF CONSTITUTIONS, supra note 24, at 103 (documenting widespread borrowing in constitution-making around the globe, from nineteenth century Latin America, to post-colonial Africa, to Iceland, and South Sudan today).
135. Paul Brady, Social, Political and Philosophical Foundations of the Irish Constitutional Order, in THE SOCIAL AND POLITICAL FOUNDATIONS OF CONSTITUTIONS, supra note 24, at 269, 274.
136. Jed Rubenfeld, Commentary, Unilateralism and Constitutionalism, 79 N. Y. U. L. REV. 1971, 1992-93 (2004) (describing the prevalence of "international constitutions" that are primarily drafted by foreign consultants).
137. See John W. Meyer, John Boli, George M. Thomas & Francisco O. Ramirez, World Society and the Nation-State, 103 AM. J. SOC. 144, 144-45 (1997) ("Many features of the contemporary nation-state derive from worldwide models constructed and propagated through global cultural and associational processes.").
138. David S. Law & Mila Versteeg, Constitutional Variation Among Strains of Authoritarianism, in CONSTITUTIONS IN AUTHORITARIAN REGIMES 165, 170 (Tom Ginsburg & Alberto Simpser eds., 2014).
139. E.g., LOUIS HENKIN, THE AGE OF RIGHTS 2 (1990) ("Human rights are universal: they belong to every human being in every human society. They do not differ with geography or history, culture or ideology, political or economic system, or stage of societal development.").
140. See, e.g., TODD LANDMAN, PROTECTING HUMAN RIGHTS: A COMPARATIVE STUDY 4 (2005) ("[E]ven the most optimistic observers in 1948 could not have imagined the subsequent growth and influence of human rights discourse and doctrine⋯.." (citation omitted));
141. BETH A. SIMMONS, MOBILIZING FOR HUMAN RIGHTS: INTERNATIONAL LAW IN DOMESTIC POLITICS 36 (2009) ("The most striking fact about the international law of human rights is its nearly complete absence prior to the end of World War II.").
142. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 (1987) ("A state violates international law if, as a matter of state policy, it practices, encourages or condones (a) genocide, (b) slavery or slave trade, (c) the murder or causing the disappearance of individuals, (d) torture or other cruel, inhuman, or degrading treatment or punishment, (e) prolonged arbitrary detention, (f) systematic racial discrimination or (g) a consistent pattern of gross violations of internationally recognized human rights.").
143. Christof Heyns & Frans Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level, 23 HUM. RTS. Q. 483, 488 (2001) ("The treaty system has largely defined the international consensus on human rights norms-").
144. See, e.g., GRAHAM HASSALL & CHERYL SAUNDERS, ASIA-PACIFIC CONSTITUTIONAL SYSTEMS 1 (2002) ("The [Universal] Declaration of Human Rights⋯ must surely have had more impact on thinking about law, constitutionalism and governance than any other document produced in the last century.");
145. Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L. J. 1225, 1269-74 (1999) (conceptualizing the "expressive" function of constitutions and contrasting it with more functionalist perspectives on constitutions).
146. See, e.g., Cass Sunstein, Why Does the American Constitution Lack Social and Economic Guarantees, in AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS, supra note 65, at 90, 101-02 (expressing doubt on "whether the many constitutions containing social and economic rights have made any difference at all 'on the ground'").
147. Stephan Küffmer & Joshua Partlow, Voters in Ecuador Approve Constitution: New Document Would Enhance Presidential Powers, Allow Consecutive Terms, WASH. POST, Sept. 29, 2008, at A14 (noting that "at least 65 percent of Ecuadorans voted for the constitution" in a public referendum);
148. Carlo Ruiz Giraldo, Social Participation and Prior Consultation Rights in Ecuador: An Unfinished Dream?, CONSTTTUTIONNET (Aug. 28, 2013), http://www.constitutionnet.org/news/social-participation-and-prior-consultation- rights-ecuador-unfinished-dream ("[S]ocial participation was⋯ a key feature of Ecuador's constitutional project both in terms of content and process.").
149. CONSTITUCIÓN POLITICA DE LA REPUBLICA DEL ECUADOR art. 13 (declaring the right to safe and permanent access to "healthy, sufficient and nutritional food" that is "preferably produced locally and in keeping with their various identities and cultural traditions");
150. See, e.g., Cass Sunstein, Social and Economic Rights? Lessons from South Africa 1, 3 (The Law Sch. of the Univ. of Chi., John M. Olin Law & Economics Paper Series No. 124, 2001) (noting that many critics of social and economic rights worry that these rights are beyond judicial capabilities, and put the judiciary in charge of overseeing large-scale bureaucratic institutions).
151. See General Recommendation No. 14: Female Circumcision, Comm. on the Elimination of Discrimination Against Women, 9th Sess., Jan. 22-Feb. 2, 1990, U. N. Doc. A/45/38, at 80 (June 6, 1990) (recommending that states eradicate the practice of female circumcision);
152. Declaration on the Elimination of Violence Against Women, G. A. Res. 48/104, art. 2 (a), U. N. GAOR, 48th Sess., Supp. No. 49, U. N. Doc. A/48/49, at 217 (Dec. 20, 1993) (stating that female genital mutilation is a form of violence against women).
153. See, e.g., PROCLAMATION BY HIS MAJESTY KING SOBHUZA II [CONSTITUTION] Apr. 12, 1973 (Swaz.) (noting "that the [1968 Independence] constitution has permitted the importation into our country of highly undesirable political practices alien to, and incompatible with the way of life in our society⋯ increasingly this element engenders hostility, bitterness and unrest in our peaceful society"). The 1973 Proclamation abolished parliament and reinstated the traditional institution of the Swazi King. Id.
154. There is a growing consensus that access to abortion might be required under international human rights law. See Comm. on the Elimination of Discrimination Against Women, General Recommendation No. 26: Women Migrant Workers, ¶ 18, 42d Sess., Oct. 20-Nov. 7, 2008, U. N. Doc. CEDAW/C/2009/WP.l/R (Dec. 5, 2008) (noting that "[discrimination may be especially acute in relation to pregnancy" and suggesting that access to abortion services is required by Committee on the Elimination of Discrimination against Women (CEDAW)).
155. For an official statement of the "Asian position" on human rights, see World Conference on Human Rights, Mar. 29, 1993-Apr. 2, 1993, Report of the Regional Meeting for Asia of the World Conference on Human Rights ("Bangkok Declaration"), ¶ 10, U. N. Doc. A/CONF.157/ASRM/8-A/ CONF.157/PC/59 (Apr. 7, 1993).
156. Istvan Stumpf, Judge, Constitutional Court of Hung., The Birth of a New Fundamental Law of Hungary, Keynote Address at the Heritage Foundation (Oct. 11, 2012), http://www.heritage.org/research/lecture/2013/05/model-resource-or- outlier-what-effect-hasthe-us-constitution-had-on-the-recently-adopted- constitutions-of-other-nations.
157. THE FUNDAMENTAL LAW OF HUNGARY, [CONSTITUTION] art. 2 ("[T]he life of a foetus will be protected from the moment of conception. ").
158. See Hungary: Constitution Changes Warrant EU Action, HUM. RTS. WATCH, (Mar. 12, 2013), http://www.hrw.org/news/2013/03/12/hungary-constitution- changes-warrant-euaction (noting that one constitutional amendment adopted in March 2013 "[l]imit[ed] the mandate of the Constitutional Court, preventing it from referring to its own rulings prior to January 1, 2012, when a new constitution came into force, and ending its power to review the substance of amendments to the constitution").
159. See Kim Lane Scheppele, Hungary's Constitutional Revolution, N. Y. TIMES (Dec. 19, 2011, 10:31 AM), http://krugman. blogs.nytimes.com/2011/12/19/ hungarys-constitutional-revolution (describing the international criticisms of the new constitution).
160. See Hanneke van den Akker, Rozemarijn van der Ploeg & Peer Scheepers, Disapproval of Homosexuality: Comparative Research on Individual and National Determinants of Disapproval of Homosexuality in 20 European Countries, 25 INT'L J. PUB. OPINION RES. 64, 71-72 (2013) (emphasizing that empirical research shows that among twenty European countries studied, Hungary disapproves of homosexuality on a national and an individual level more than most other European countries).
161. See, e.g., David D. Kirkpatrick, Islamists Rush Through Egyptian Constitution and Prepare to Vote on It, N. Y. TIMES, Nov. 30, 2012, at A6 (describing the contested provisions in the document that is currently being written).
162. David D. Kirkpatrick, Thousands of Egyptians Protest Plan for Charter, N. Y. TIMES, Dec. 5, 2012, at A6 (reporting that "[t]he crowd appeared more affluent than those at the usual Tahir Square protests", and that there "was an unusually high concentration of women, especially for an event after dark, and very few traditional Islamic headscarves" as well as "a heavy representation from Egypt's Coptic Christian minority").
163. See David D. Kirkpatrick & Kareem Fahim, Egypt Islamists Expect Approval of Constitution, N. Y. TIMES, Dec. 16, 2012, at A1 ("Many international experts faulted the charter as a missed opportunity, stuffed with broad statements about Egyptian identity but riddled with loopholes regarding the protection of rights.");
164. Egypt's New Constitution Mixed on Support for Rights, HUM. RTS. WATCH (NOV. 30, 2012), http://www.hrw.org/news/2012/ll/29/egypt-new-constitution- mixed-support-rights; (providing an overview of problematic articles in the Rights and Freedoms chapter of the draft constitution).
165. Daniel Lansberg-Rodriquez, An Obituary for the Egyptian Constitution, Dec. 26, 2012-July 3, 2013, FOREIGN POL'Y, (July 3, 2013, 8:11 PM), http://trarisitions.foreignpolicy. com/posts/2013/07/03/an-obituary-for-the- egyptian-constitution-dec-26-2012July-3-2013.
166. See CHARLES PARKINSON, BILLS OF RIGHTS AND DECOLONIZATION 1-19 (2007) (describing how it became Britain's policy to require a bill of rights as part of the negotiations for independence).
167. See A. W. BRIAN SIMPSON, HUMAN RIGHTS AND THE END OF EMPIRE: BRITAIN AND THE GENESIS OF THE EUROPEAN CONVENTION 844-73 (2004) (describing how the postcolonial bills of rights were modeled on the European Convention on Human Rights and Fundamental Freedoms).
168. See, e.g., Charles O. H. Parkinson, The Social and Political Foundations of the Nigerian Constitution, in THE SOCIAL AND POLITICAL FOUNDATIONS OF CONSTITUTIONS, supra note 24, at 532, 533 (noting that the Nigerian independence constitution failed because it was "unable to accommodate the fundamental social and political divisions within Nigerian society");
169. Ruth Gordon, Growing Constitutions, 1 U. PA. J. CONST. L. 528, 531 (1999) (noting that the "postcolonial constitutions in Sub-Saharan Africa have largely succumbed to irrelevance and debacle" because they were "not firmly grounded in the cultural mores of the society in which they operate").
170. Pierre Legrand, The Impossibility of 'Legal Transplants', 4 MAASTRICHT J. INT'L COMP. L. 111, 118-20 (1997) (suggesting that "at best, what can be displaced from one jurisdiction to another is, literally, a meaningless form of words" and that "[n]o rule in the borrowing jurisdiction can have any significance as regards the rule in the jurisdiction from which it is borrowed" (emphasis in original));
171. cf. ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW 1-24 (1st ed. 1974) (suggesting that legal transplantation is the primary engine of legal change).
172. Compare Daniel Berkowitz, Katharina Pistor & Jean-Francois Richard, Economic Development, Legality, and the Transplant Effect, 47 EUR. ECON. REV. 165, 165 (2003) (describing the negative effects of legal transplantation and characterizing this as "the transplant effect")
173. with Daron Acemoglu, Davide Cantoni, Simon Johnson & James A. Robinson, The Consequences of Radical Reform: The French Revolution, 101 AM. ECON. REV. 3286, 3304 (2011) (suggesting that "big bang" institutional reform may be conducive to economic growth).
174. See Stephen Cornell & Joseph P. Kalt, Where Does Economic Development Really Come From? Constitutional Rule Among Contemporary Sioux and Apache, 33 ECON. INQUIRY 402, 404 (1995) (studying the Sioux and Apache tribes and suggesting that constitutions unrelated to preexisting institutions are ineffective);
175. Richard A. Posner, Creating a Legal Framework for Economic Development, 13 WORLD BANK RESEARCH OBSERVER 1, 6 (1998) (noting that transplantation does not work for constitutions because the "effectiveness" of constitutional law "depends on a particularly complex cultural and institutional matrix");
176. Fredrick Schauer, On the Migration of Constitutional Ideas, 37 CONN. L. REV. 907, 912 (2005) (speculating that "transplanted" constitutions may be less effective because they are remote from local circumstances).