By Kim Lane Scheppele
The American Constitution was the first complete written national constitution. But it was neither the first constitution of a general government, nor the first written constitution. A number of governments, starting with the Greek city-states, had customary or partially written constitutions. And the American states had all complete written constitutions before the Philadelphia Constitutional Convention took place. In fact, at the Philadelphia convention, many of the delegates reacted against what they saw as the flaws in the state constitutions, which had exchanged the unlimited power of the (now overthrown) King for the unlimited power of a (now elected) legislature. The checks and balances system that emerged from the Philadelphia convention was, for many of the delegates, a reinstatement of what they believed the British constitution had long stood for, before kings began exceeding their legitimate power under it.
The American Constitution drew from many sources. Britain was the most obvious. But the comparative knowledge of the Framers ranged from Ancient Greece to then contemporary Poland. This educated group meeting in Philadelphia was well aware that their draft was highly original in some ways and deeply indebted to other constitutional ideas in other ways.
Once the American Constitution was ratified, the idea of the single written constitution became popular the world over. Poland adopted its first written constitution in the spring of 1791; France followed with its first written constitution later that year and went through four constitutions in the 1790s alone. Many 19th century changes of government were marked by the adoption of written constitutions, some of which are still in existence. The European Revolutions of 1848 produced dozens of new constitutions in that year alone, though few of them lasted. But it was clear by century's end in many parts of the world that changes of government should be marked by the adoption of new constitutions.
In the 20th century, constitutions have become fashionable, especially since the Second World War. Almost all democratic governments now have written constitutions. (The United Kingdom, New Zealand and Israel are the notable exceptions.) Judicial review of laws, an American invention, has also spread throughout the world, though the American style of judicial review is less popular than the Austrian/German style developed following the WWI in Austria and WWII in Germany. Since the collapse of the Soviet Empire, a wave of new constitution-writing has produced a new faith in the abilities of constitutions to guide new governments. The new constitutions tend to be much longer than the American one, because they govern more institutions (like central banks, administrative agencies, cabinet-level offices, and the military) and because they include more rights (not only a more extensive list of civil and political rights, but also increasingly social, cultural and economic rights as well).
The American Constitution remains special in this history, but its exact provisions, its elaborate system of checks and balances, its constrained list of rights, and its sparseness are not very often copied exactly these days. But the American constitutional experience showed how one might construct a long-lasting democratic government though clever ideas about the design of political institutions. And this model of political creation has captured constitution-writers ever since.
Kim Lane Scheppele is a professor of law, political science, and sociology at the University of Pennsylvania. Professor Scheppele was the 1999 – 2000 NCC Senior Visiting Scholar.
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