A leading expert who helped a dozen nations write their constitutions explains how the Founders' ideas have had a lasting influence at home and abroad,
Editor's Note: Prof. Dick Howard has been in a unique position to see first-hand the impact of the ideas of our Founders around the world. Since he was executive director of the commission that wrote a new constitution for the Commonwealth of Virginia in 1971, Prof. Howard has consulted with 15 countries in writing their constitutions including Albania, Brazil, Czechoslovakia, Hungary, Poland, Hong Kong, Romania, Russia, Malawi, South Africa, and the Philippines. He is now the White Burkett Miller Professor of Law and Public Affairs at the University of Virginia.
The delegates who signed their names to the Declaration of Independence in July 1776 knew that they had an audience beyond the King and Parliament in Great Britain. They declared that a “decent Respect to the Opinions of Mankind” obliged them to specify the nature of the grievances which led them to declare independence. Indeed, by basing their case on “the Laws of Nature and of Nature’s God,” the American drafters assumed a world of values not limited to the Anglo-American sphere.
Americans of that era were not mistaken in supposing that the ship they were launching was undertaking a voyage of interest far beyond their own borders. What an exciting time it was. America in the founding generation produced ideas about constitutions and constitutionalism that have had lasting influence at home and abroad. Among those ideas were devising ways to ensure the supremacy of constitutions over ordinary laws, envisioning conventions designed specifically to write a constitution, fashioning the separation of powers and checks and balances so as to nurture the rule of law, and giving reality to the Madisonian argument that a republic did not have to be small in order to survive.
America at the close of the eighteenth century was, to be sure, different in many ways from the mother country and, more generally, from Europe. America was by the time of the Revolution already more democratic. The public sphere was markedly different. There was no monarchy. There was, at the national level, no bureaucracy. For most people, politics and government were local. There was not a nobility or, indeed, a legally constituted social order. And, while states had established churches, already the strictures of establishment were weakening.
Even so, the founding years of American constitutionalism engendered intense interest throughout the Atlantic world. For years, philosophers, especially in France, had talked of liberty and equality. Now they could look to Americans as putting those ideas into actual practice. Condorcet declared that it was not enough “that the rights of man be written in the books of philosophers.” A real-world example was needed: “America has given us this example.”
Beginning in 1776, French and American thinkers debated what a constitutional regime should look like. In France, Turgot objected to American state constitutions’ qualifying popular sovereignty by instituting bicameralism, separation of powers, and checks and balances. In reply, John Adams wrote a massive, three-volume defense of the state constitutions.
Sometimes an American document served as a model in France. The drafters of France’s Declaration of Rights of Man and the Citizen (1789) had close at hand Virginia’s Declaration of Rights (1776). If one lays the Virginia document side by side with the French Declaration, the similarities are obvious. Indeed, Condorcet said that the George Mason, the author of the Virginia Declaration, deserved “the eternal gratitude of mankind.”
It is fascinating to observe how in 1791, when French drafters debated what their first Constitution should look like, the American experience helped frame their deliberations. One faction in the French National Assembly argued for bicameralism and a balance of powers. Mounier, Mirabeau, and Rochefoucauld, among others, cited both the American national and state constitutions as precedents. They were especially impressed by the Massachusetts Constitution of 1780, largely written by John Adams.
On the other side, the more radical faction wanted a unicameral legislature, the better to see Rousseau’s notion of the general will focused and the popular voice amplified. The Abbe Sieyes said that arrangements suited to American republicanism would not do in France, where dangers posed by monarchy and aristocracy still threatened. For this faction, Pennsylvania’s 1776 Constitution – the most democratic of the early American state constitutions (it provided for a unicameral legislature) – was the better model.
As events in France unfolded, American ideas proved less influential. The National Assembly rejected bicameralism. Federalism, a linchpin of American constitutional design, was hardly considered. In America, judges came to exercise the power of judicial review, enforcing the Constitution by declaring legislative acts unconstitutional. In France, judges were thought accountable to the people. During the 1790s in France, constitutions proved ephemeral. All in all, the more radical France became, as the idealism of the revolution’s early years gave way to the Reign of Terror, the less France looked to American precedents. As one French commentator observed, France “has its own manners, its personal character.” The French, he said, did not have to clothe themselves in a style “either a l’americaine or a l’anglaise.”
German reformers write a liberal constitution in 1848
As revolutions swept Europe in 1848, a National Assembly convened at Frankfort’s Paulskirche. A large number of the assembly’s delegates were academics or lawyers, earning the meeting the name “Parliament of Notables.” By 1848, America had become a hot topic in Germany. Already, the Federalist papers, commentaries on the United States Constitution (such as Story’s and Kent’s), and Tocqueville’s Democracy in America had been translated into German and were widely available.
At Frankfort, many foreign constitutions were cited by the delegates, but references to the United States Constitution substantially outnumbered all others. References to American constitutionalism surfaced in discussions of virtually every subject. One delegates even proposed that, following the “Washington model,” Germany’s capital be in a small town. This proposal failed.
Two topics were especially prominent in the Frankfort debates – federalism and the judiciary. Germany had an historical tradition of federal arrangements, notably in the German Confederation, created in 1815 at the Congress of Vienna. But liberal constitutional lawyers at Frankfort looked to American federalism as an ideal. Thus, American ideas influenced the shaping of federal legislative powers for Germany, although the assembly invented its own concept of federal executive power.
To exercise judicial power, the Frankfort assembly created a supreme federal court, the Reichsgericht. Delegates saw this court to be the “cornerstone” of the proposed German Constitution. Here, again, the American model was influential. Carl Mittermaier, an eminent constitutional scholar at Heidelberg (he had an honorary degree from Harvard), called the United States Supreme Court the “highest decoration” of the American constitutional system. America’s “living Constitution” owed its vigor and vitality, he said, to the Supreme Court. “Let us follow the American example,” he declared, “and we shall harvest the most splendid fruits.”
The Paulskirche Constitution was in fact never implemented. The rulers in conservative German states – Prussia, Austria, and Bavaria – would not accept it. Yet the Paulskirche Constitution became the most influential document for later constitutional development in Germany. In 1949, a hundred years after the delegates in Frankfort adjourned, Germans wrote a Basic Law for their country. Many of the American ideas that influenced the debates at the Paulskirche reappeared in the Basic Law – federalism, the rule of law, constitutional jurisdiction, the Constitution’s superiority.
Manifest destiny and the Philippines
The Spanish-American War (1898) brought the United States new possessions, including the Philippines. Expansionists argued that the United States should acquire new territory. Some arguments were economic – that America needed new markets. Some arguments were strategic – that the United States Navy needed bases. Other arguments advanced a premise based on duty or obligation – a religious calling to improve the lot of the Filipinos, or a belief that Anglo-Saxon culture was destined to supersede barbarism.
Senator Albert Beveridge declared that “American law, American civilization, and the American flag will plant themselves on shores hitherto bloody and benighted.” God, he said, “has marked us as his chosen people, henceforth to lead in the regeneration of the world.” The New York Times spoke in terms of manifest destiny – that Americans owed the Philippines “order and a stable government.”
Anti-imperialists spoke with a different voice. They argued that imposing government on another people was antithetical to the traditions of American constitutionalism. The ranks of the opposition included such notables as William Jennings Bryan and William James. Imperialism, however, carried the day.
Americanization plans took shape under President William Howard Taft’s administration. There were three main components: the establishment of a system of public education, the transfer of American jurisprudence, and guided participation toward self-government.
Schools were established along American lines. Civics lessons taught about elections, citizenship, and respect for the law. Textbooks would have been readily recognizable in American schools. They taught such traditional values as hard work, honesty, and independent thinking.
To enable the transfer of American jurisprudence, Americans wrote codes modeled on those of American states. President Taft thought the Spanish judiciary was venal, so he had American judges imported to show Filipinos “what Anglo-Saxon justice means.” American case law became binding or persuasive.
The goal of self-government proceeded step by step. In 1907, elections were held for a Philippine Assembly. Franchise was limited to adult makes who were literate or were property owners. In 1916, the Jones Act transformed the Philippines Commission, originally appointed by the American President, into an elected upper house of the Filipino legislature. In 1934, the Tydings-McDuffie Act authorized the legislature to organize an election of delegates to a constitutional convention. The Act laid down conditions. A new constitution must be “republican” in form, it must contain a bill of rights, the constitution must be approved by the American President, and it must also be ratified by the people of the Philippines in a referendum. After ten years, the United States would recognize Philippines independence.
In drafting a constitution, the convention drew upon various sources. The principal drafter, Felipe Caderon, thought that history, custom, and usage made the Philippines more like Latin America than the United States. Even so, the resulting constitution, while not an exact copy of the United States Constitution, showed strong American influences. For example, it created a presidential, rather than parliamentary, system; it provided for constitutional supremacy; and it included judicial review of legislation. In 1946, the United States transferred sovereignty to the Philippines.
Woodrow Wilson meets Tomas Masaryk
In 1912, in a campaign speech, Woodrow Wilson laid a challenge before his fellow Americans. “We are chosen,” he said, “to show the way to the nations of the world how they shall walk in the paths of liberty.” When the United States found itself involved in World War I, Wilson famously declared his war aim: to “make the world safe for democracy.”
Wilson did not believe, however, that a constitution had to be based on the American model – a written document drawn up by a constituent assembly, ratified by the people, and difficult to amend. Wilson’s ideas were more about democracy than about constitutionalism. His emphasis was on self-determination, on free elections, on consent of the governed.
In Central and Eastern Europe, with the dissolution of the pre-war empires, countries that became democratic essentially satisfied Wilson’s general requirements. These included popular representation, administration subject to the law, a generally independent judiciary, and a bill of rights.
None of those countries, however, adopted an American-style presidential system, nor did they create judiciaries equal in stature to the legislative and executive powers. They instituted parliamentary government, with France being a closer model than America. European constitutions were, in some respects, rather like legislation. Amendment did not require popular ratification.
The birth of modern Czechoslovakia offers an interesting case study in the interplay between local and American ideas. Tomas Masaryk, the father of Czechoslovakia, was an apt student of American life (it helped that his wife was born in America). He spent the latter part of the war in the United States, where he became the leader of the American Czech community. For a time, it seemed that Wilson might be inclined to acquiesce in the post-war existence of the Austro-Hungarian Empire. Masaryk went to work to influence American public opinion and Wilson in favor of an independent Czechoslovakia.
In June 1918, the Czechoslovakia National Council issued the Pittsburgh Declaration. Drafted by Masaryk, with the help of American friends, the document was partly an agreement between Czechs and Slovaks on the allocation of powers in the new state. But it was also a statement of democratic principles.
In the fall, Masaryk, on behalf of the National Council, issued a Declaration of Independence for Czechoslovakia. In his memoirs, Masaryk said that the declaration was “cast in a form calculated to remind the Americans of their own Declaration of Independence.” Masaryk’s ploy worked. Wilson told Masaryk that he was moved by the Declaration, and the President came out in favor of an independent Czechoslovakia.
General MacArthur’s team writes a constitution for the Japanese
As World War II wound toward its conclusion, the allied powers’ Potsdam Declaration, issued in July 1945, called for Japan’s unconditional surrender. The allies’ occupying forces would be withdrawn from Japan once a “peacefully inclined and responsible government” had been established in accordance with the “freely expressed will of the Japanese people.”
August 1945 brought the Japanese surrender. General Douglas MacArthur set the tone for his rule in a speech modeled after Lincoln’s Second Inaugural Address, promising to proceed “with malice toward none.” When Germany surrendered, in May 1945, the German government had ceased to exist; the allied powers were in complete control. By contrast, the Japanese government stayed in place, while under allied rule.
In October, MacArthur proposed that the Japanese draft a new constitution. A Japanese committee was appointed, headed by legal scholar and prewar cabinet minister Joji Matsumoto. The existing constitution, adopted in 1889, had been based in good part on that era’s Prussian Constitution. The members of the Japanese committee thought that little change was needed. A draft of the Japanese revision was leaked to the press, and MacArthur saw that the Japanese, on their own, would leave things largely as they were. MacArthur was concerned that, unless he moved quickly, the Russians might come on board and insist on a voice.
MacArthur turned to his Military Government team to draft a constitution. The members of that team worked for a week, and General Courtney Whitney presented their draft to the Japanese. Matsumoto was appalled. The Japanese had expected comments on their draft, not a new American draft. The Americans insisted, and the Japanese, having little option, yielded. Promulgated in 1946, the new constitution took effect in 1947.
The new constitution had significant American overtones. The Emperor was retained (a gesture to Cold War realities), but power was stated to derive from the people. The famous Article 9 renounced war. Basic rights were spelled out. While some of those rights, such as those involving criminal procedure, had parallels in the United States Constitution, others broke new ground. In guaranteeing rights of academic freedom, standard of living education, and labor, the document reflected the New Deal orientation of members of the American drafting team.
The American drafters were of a mixed mind about judicial review. They wanted a stronger judiciary, the better to enforce the Constitution. But, recalling the United States Supreme Court’s opposition to the New Deal, they didn’t want the judiciary to be too strong. They inserted an age limit of 70 for judges. And while the due process clause (Article 31) protected life and liberty, it did not protect property.
Was the Japanese Constitution imposed on Japan? Or is it “Japanese”? At the constitution’s inception, it was some time before the Japanese people learned that the constitution had originated with the Americans’ draft. One might suppose that, once the Americans had departed, the Japanese might have drafted a constitution for themselves. In fact, not only has the 1946 constitution remained in force, there have been no amendments (although there has been heated debate over Article 9). One must conclude that, whatever the constitution’s origins, it has been thoroughly domesticated. Practice (for example, the Japanese courts’ sparing use of the power of judicial review) has made the document a “Japanese” constitution.
Central and Eastern Europe after 1989
After the Berlin Wall came down in 1989, communist regimes throughout the former Soviet sphere collapsed, one after another. The challenges facing those countries were daunting. They had lived for almost a half century under oppressive communist tyranny. To bolster their power, the communists sought to erase institutions of civil society. There was no rule of law, certainly not as understood in the West. Separation of powers and checks and balances were thrust aside as impediments to the Party’s monopoly of power. There was but one model for a constitution – the Constitution of the Soviet Union.
Adding to the challenges was the fact that, save for Czechoslovakia (between 1918 and 1938), the countries in the region had little or no experience with democracy. Their economies had lagged far behind their western counterparts. Cynicism made citizens understandably distrustful of legal norms, as what you received in the communist era depended so much on who you knew, what deals you could make under the table.
Reformers, such as Vaclav Havel in Czechoslovakia, aspired to pluralistic, liberal, constitutional democracy. A new order called for new constitutions. To what sources would constitution-makers look? A country’s own history might offer some inspiration. Poles are proud that in May 1791 their forebears wrote Europe’s first constitution. Hungary’s constitutional traditions date back to the Golden Bull of 1222, a document bearing some resemblance to England’s Magna Carta.
For more modern sources, drafters in Central and Eastern Europe were drawn especially to the institutions of Western Europe. The reason are manifest. Historically part of Europe, the newly freed countries wanted to return, once again, to the “family of Europe.” They hoped to be admitted to European arrangements, above all the European Union. They anticipated trade and investment. Lawyers and academics had great respect for Western Europe’s laws and institutions.
Experts from western countries – France, Germany, the United Kingdom, the United States – were invited to come and give advice. Americans were received with respect. After all, local scholars were well aware of Madison and the Federalist Papers. But the American model seemed distant in more ways than simply geography. In any event, the new constitutions had a distinctly European flavor. For example, where judicial review was to be in play, it would typically be exercised by German-style constitutional courts rather than by an American-style supreme court. Enumerations of rights always included positive rights (claims on government, such as the right to a job or to old-age benefits), rights not found in the American Bill of Rights. And, depending on the country, the new constitutions had to contend with problems of ethnicity and national minorities, for example, the status of ethnic Hungarians in Romania.
How American constitutional ideas travel
Historical experience reveals diverse ways in which constitutional ideas have traveled from American soil to other countries.
From the republic’s early years, American ideas or the American experience engendered admiration abroad. Thus, the ideals embodied in the American experiment were admired by reformers in France. As that experiment yielded practical experience, it appealed to liberals and reformers, as it did at the Paulskirche in Frankfort in 1848.
Admiration for individuals has helped carry American ideas abroad. Franklin and Jefferson took pleasure in spreading American ideas in France. Peoples aspiring to nationhood during World War I were stirred by Woodrow Wilson’s idealism.
Other countries, such as Great Britain, had vaster empires. But the United States had its colonial period, and consequently American constitutional principles became part of constitutional design in the Philippines.
War and military occupation have played their part. No example could be more vivid than the drafting of a constitution for Japan by the American military government after World War II.
Technical advisors have carried American ideas to other counties. After the collapse of communism, the American Bar Association’s Central and Eastern European Law Initiative sent advisors to compare notes with constitution-makers in countries throughout the former sphere of Soviet domination.
Limits and legacy
If one were asked to write a country’s constitution today – let’s call the country Xanadu – it’s hardly likely that the drafter would pull out the United States Constitution, put pen to paper (or fingers to keyboard), and begin copying provisions into Xanadu’s new fundamental law. For all the uses to which the American Constitution has been put in the years since 1789, there are manifest limits on its use as a model for the modern constitution-maker.
To begin with, a constitution has to be shaped to fit the history, traditions, customs, politics, and needs of the country for which it is being written. The United States Constitution was written in the 18th century under social, economic, and political circumstances different in many ways from those of today, in America and certainly elsewhere.
At the time of its writing, the United States Constitution was an incomplete document. It was incomplete in the sense that it assumed the existence of the state constitutions. Thus, even in 1789, to get a complete picture of American constitutionalism, one had to take into account those state charters. Especially was this true in an age when so much public and political life took place at the state and local level.
Arguments for the ability to copy the American example must also take into account the long-standing notion that the American experience has been exceptional. The idea of American exceptionalism implies the existence of a constitutional culture that cannot be replicated elsewhere.
The text of the United States Constitution invites more questions than it can answer. Much of the American constitutional experience lies, as any law student can attest, in judicial decisions, notably those of the Supreme Court, and in usage – what presidents, legislators, and other public actors do.
Quite apart from all of these limits, today’s constitution-maker has abundant other models to study in addition that of the United States. Drafters in Xanadu, in no matter which continent they reside, are more likely to be drawn to more modern constitutions for inspiration. They will look, for example, at such constitutions as those of Germany and South Africa – at constitutions written mostly in the years since World War II.
A constitutional drafter in our time also will take into account international norms, such as United Nations covenants, and regional agreements, such as the European Convention on Human rights. The delegates who met in Philadelphia in 1787 might have felt the tug of natural law, but today such ideas have been codified in ways meant to protect human rights – protections that naturally invite parallels in constitutions.
None of this means that the American constitutional experience is beside the point. It does not mean that the United States Constitution and its meaning are simply relics. The importance of American constitutionalism lies, not so much in the use of the Constitution as an explicit model, as in the power of what it represents. If there were a genealogical chart of constitutionalism in the modern world, the United States Constitution would be a respected ancestor. What Magna Carta is to Anglo-American constitutionalism, the United States Constitution is to world constitutionalism.
There are abiding principles for a free society embedded in American constitutionalism. Among these are limited government, separation of powers, checks and balances, a respect for local decisions, a bill of rights, and constitutional supremacy. These are principles which, in one form or another, one hopes to find present in systems aspiring to liberal constitutional democracy.
To the extent that these principles have been nurtured by the American constitutional experience, to that extent what Americans have done has been part of a grand constitutional conversation. That colloquy has taken place, and takes place, in lands and cultures far remote from the world of the American founders.