What makes a constitution endure?

What makes a constitution endure?(uchicago.edu)

10 points by Abid 15 years ago | 10 comments

philwelch 15 years ago |

Successful models include the precise Mexican constitution of 1917, which has survived through periods of dictatorship and democracy, Ginsburg notes.

If a written constitution can actually endure "through periods of dictatorship and democracy", it may be notable in that the document itself survived and remained, nominally, in legal force for a very long time, but it's somewhat failed at providing a stable form of government, hasn't it? I'd rather have something like, say, France, where they've rewritten the constitution enough times to be on their Fifth Republic but at least they've had a republic of some form for over a hundred years (not counting foreign occupations and puppet states).

Also, judging by the explicit and implicit amendments and interpretations, the US is arguably on its third Constitution--the first being the Articles of Confederation, the second being the antebellum Constitution, and the third being the present Constitution.

hga 15 years ago | |

I would add the Great Depression Constitution. With changes in things like turning the Commerce Clause on its head that lead to cases like Wickard v. Filburn (http://en.wikipedia.org/wiki/Wickard_v._Filburn) I can't really say we're living under the same constitutional order as the post-antebellum one.

The Progressives also made some significant changes (popular election of Senators, income tax), but one can at least argue that was done through the system by the amendment process. By the time of FDR, only fig leafs were required (e.g. the effective ban on private ownership of machine guns through a $3,250 "tax" (in today's dollars, or "The switch in time that saved nine" (http://en.wikipedia.org/wiki/Switch_in_time_that_saved_nine )) ... during the Great Depression). Now, D.C. doesn't even bother with the fig leafs ... one might seriously question how much we really live under the rule of law today, but its pretty clear that's long been an issue (one could start with e.g. the frankly unconstitutional and very early Alien and Sedition Acts, although they didn't last very long).

Mexico is also a ... strange case to cite, when one party held power for more than 70 years starting in 1929 (http://en.wikipedia.org/wiki/Partido_Revolucionario_Instituc...) ... it's name, in English, is rather suggestive: "Institutional Revolutionary Party". That said, starting sometime around then didn't it/the party provide a fairly stable form of government, and most notably they were willing to give up power peacefully (more or less) fairly recently.

Zev 15 years ago |

Personally? I think its because the US Constitution wasn't written to solve every problem of the day. It was written as a framework, to let lawmakers solve problems as they came up. And the framework is malleable enough so that it can be changed as needed, if it becomes a problem, rather than a solution.

philwelch 15 years ago | |

Depending on how you interpret it, it's also duck-typed on the moral and social norms of the society it governs. Consider some of the amendments--"cruel and unusual punishment"? The standards of punishment, including capital punishment, in the 18th century don't meet with current standards. Un-enumerated rights? The society of James Madison was not one where the fundamental right to privately use contraception and engage in homosexuality was recognized as a moral imperative, ours is, yet the same Constitution works for both.

Zev 15 years ago | | |

The eigth amendment doesn't go as far as to define "cruel and unusual punishment" is. The nineth amendment doesn't define what rights should or shouldn't be protected.

Yes, there are some basic rights that are protected. But largely, the Constitution much more of a guideline about how the legal system should work than it is an absolute set of laws to be followed forevermore. Ambiguities are good in this case. Even if it did get Hamilton shot by Burr.

SkyMarshal 15 years ago | |

Also because, to paraphrase coffeemug, it was intended to "bring a meaningful change in the world. A huge change. A 1000% change."

As far as I know it's the only country founded on a set of enduring, fundamental moral principals, rather than because a bunch of tribes happened to be living in the same vicinity and some warlord or king 'united' them, or as you say to solve the contemporary problems of the day.

http://news.ycombinator.com/item?id=1747713

bluesnowmonkey 15 years ago |

Why should duration be considered a measure of a constitution's success? The goal is to "provide for the common defense, promote the general welfare," etc. If it achieves this for 50 years, then is replaced by another that also succeeds for 50 years, is the result in any way worse than a constitution that lasts for 100?

Abid 15 years ago | |

I think scraping a constitution and writing a new one inevitably brings about political turmoil precisely because the stated goals aren't being accomplished.

You're right in that duration shouldn't be the only measure, but I think the longevity says something about how society feels in general about the constitution's efficacy.

InclinedPlane 15 years ago |

Culture. Law and culture are symbiotic and complementary. One supports and sustains the other, if they are in conflict then either one dominates the other (resulting in anarchy or a police state, for example) or society pays the ongoing cost of that conflict (see the drug war, modern copyright law, etc.)

You can't just magic up a few pages of text and transmogrify it into "law" or a constitution. Constitutions that work are born from cultures with a history of the rule of law, and they represent a distillation of firmly held principles of the people. A good constitution represents a cheat sheet for the ideals of the people, and something that if all law were taken away a keen observer would still be able to identify the constitutional bullet points as extant aspects of society.

toddh 15 years ago |

The virtue of her people.