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U. of I. scholars collecting, analyzing constitutions from around world

Mark Reutter, Business & Law Editor

Zachary Elkins, a professor of political science
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Photos by L. Brian Stauffer
Zachary Elkins, above, a professor of political science, is working with Tom Ginsburg, below, an Illinois professor of law, on a project to collect and analyze some 760 constitutions used worldwide since the U.S. Constitution took effect.
Tom Ginsburg, an Illinois professor of law

Released 2/12/2007

CHAMPAIGN, Ill. — Thomas Jefferson believed that a country’s constitution should be rewritten every 19 years. Instead, the U.S. Constitution, which Jefferson did not help to write (he was in Paris serving as U.S. minister to France when the Constitutional Convention was held in Philadelphia), has prevailed since 1789.

“Jefferson thought the dead should not rule the living, thus constitutions should expire frequently, but the fact is that the U.S. Constitution quickly became enshrined by the public and is the oldest constitution in the world,” said Zachary Elkins, a professor of political science at Illinois.

Many other constitutions do not last very long, according to Elkins, who is working with Tom Ginsburg, an Illinois professor of law, on a project to collect and analyze some 760 constitutions used worldwide since the U.S. Constitution took effect.

“There is a lot of infant mortality,” Ginsburg said, noting that the average age for a national constitution is only 16 years.

The typical African constitution lasts only about 10 years, while those in Latin America average 12.4 years, and Haiti writes a new constitution about every three years. On the other hand, constitutions in western Europe typically endure for 32 years, and those in Asia for 19 years.

Various Socialist constitutions have tended to follow the installation of new leaders in the Soviet Union (1936, 1977) and China (1982).

Despite the importance that most nations place on having a written constitution, there is little agreement on exactly what the document should contain.

The U.S. Constitution is an example of a document that specifies “negative rights,” or the rights of citizens to be free from government intrusion.

Many constitutions, especially those written after World War II, emphasize “positive rights,” or the rights of citizens to decent housing, clean environment and good education from their governments.

Another difference among constitutions is the amount of detail contained in the document. The U.S. Constitution proclaims general principles (in part because the original framers were divided on key political issues) that have been interpreted by the U.S. courts. In some countries, institutional practices have been accepted as “constitutional” even though they were never written into law, while in other countries, such as in Mexico, actual governance did not match the principles propounded in their constitutions.

Remarkably, according to the Illinois scholars, no systematic data exist on the content, provisions and structure of constitutions. This gap in research limits the comparative study of what types of constitutions make for more durable and efficient political institutions.

“Our objective is to improve the science of constitutional design by developing a comprehensive data set that records the characteristics of constitutions, both contemporary and historical,” they wrote.

Even describing the contents of a constitution is difficult given the wide variations among countries and time periods. In a working paper, Elkins, Ginsburg and James Melton, an Illinois graduate student in political science, argued that constitutions are valuable by restricting the behavior of government.

“Without a commitment to higher law, a state operates for the short-term benefit of those in power and leaves those out of power more likely to resort to extra-constitutional means of securing power,” they wrote. “By limiting the scope of government, constitutions make government possible.”

Another function of constitutions is to define a nation and its goals. This function is particularly important in countries where citizens have strong ethnic or communal identities that compete with a national identity.

“Even a dictatorship needs established institutions through which to govern,” the scholars noted.

Aided by a number of graduate students, the Illinois team has finished collecting data on current constitutions from 192 countries. The researchers plan to collect information on historical constitutions working back to the early 1800s.

“Our object is to improve the science of constitutional design by developing a comprehensive dataset,” Elkins said. “Apart from answering research questions, the dataset promises to pay significant dividends for the design of constitutions in states transitioning to democracy.”

Ginsburg noted that drafting a constitution has been an important U.S. policy objective in Afghanistan and Iraq. While written constitutions are now in place, whether these documents will help resolve the institutional and ethnic complexities in either country is difficult to predict, according to Ginsburg.

The constitutions dataset project is sponsored by the Illinois Center for the Study of Democratic Governance. The project has received a two-year $197,000 grant from the National Science Foundation.