Let’s say you’re a newly democratizing country – say, Egypt – in the market for a new constitution. What constitutions, if any, should you consider as models in drafting your own? According to Justice Ginsburg, the answer is, maybe Canada or South Africa, or constitutions written after World War II more generally. But … not the U.S. Constitution itself. Video clip of her comments (televised in Egypt) here; partial transcript here.
Adam Liptak of the New York Times has a column scheduled for publication on Tuesday in which he will be taking on the topic of the (declining) influence of the U.S. Constitution as a model for constitution-makers in other countries. The column will touch upon Justice Ginsburg’s comments, as well as a forthcoming article that Mila Versteeg and I wrote entitled “The Declining Influence of the United States Constitution” (SSRN link here; look for it in the NYU Law Review come June). (Full disclosure: No, the Comparative Constitutions Blog doesn’t have spies inside the New York Times; I received a call from Mr. Liptak earlier this week.)
The question of where constitutional drafters should and actually do look for inspiration has always been a topic of tremendous interest and importance to other countries, not to mention comparative constitutional law scholars. Quite possibly, Justice Ginsburg’s comments and some media coverage could (re)focus the attention of a wider audience on comparative constitutional law in a way we haven’t seen since the initial furor over Supreme Court citation of foreign law in hugely controversial cases such as Lawrence v. Texas. And to the extent that this new topic attracts the attention of non-comparative constitutional scholars, perhaps the focus might even shift away from the usual scholarly preoccupation with judicial interpretation, toward the actual writing of constitutions in other countries (or, failing that, how the U.S. Constitution itself could perhaps be revised). That would, in my view, be an extremely healthy thing.