The Endurance of National Constitutions [Paperback]

Zachary Elkins (Author), Tom Ginsburg (Author), James Melton (Author)

Book Description

Publication Date: October 12, 2009 | ISBN-10: 0521731321 | ISBN-13: 978-0521731324

Constitutions are supposed to provide an enduring structure for politics. Yet only half live more than nineteen years. Why is it that some constitutions endure while others do not? In The Endurance of National Constitutions, Zachary Elkins, Tom Ginsburg, and James Melton examine the causes of constitutional endurance from an institutional perspective. Supported by an original set of cross-national historical data, theirs is the first comprehensive study of constitutional mortality. They show that whereas constitutions are imperiled by social and political crises, certain aspects of a constitution's design can lower the risk of death substantially. Thus, to the extent that endurance is desirable - a question that the authors also subject to scrutiny - the decisions of founders take on added importance.

Editorial Reviews

Review

"This book had the same effect on me as reading Goran Therborn's 1977 New Left Review paper on the history and origins of Democracy. I found it hard to put down and impossible to stop thinking about. It is an agenda setting work which will hugely influence comparative politics."
--James Robinson, Professor of Government, Harvard University and faculty associate at the Weatherhead Center for International Affairs


"Elkins and Ginsburg provide the first comprehensive analysis of what makes constitutions survive, adapt, or collapse. Their data collection, on every national charter going back to the 18th Century, is staggering in its own right. But the authors also bring to the table an array of diagnostic strategies that shed light on what accounts for constitutional mortality. Their results force us to reexamine what we thought we knew about the design of institutions and the factors that contribute to, or undermine, their stability."
--John Carey, Professor of Government, Dartmouth College


"Though ostensibly reporting on only one aspect of a dauntingly ambitious project in comparative constitutionalism, Ginsburg and Elkins manage to offer insights about the most basic ideas of "constitutions" and "constitutionalism" on almost every page. They write limpid and accessible prose but also display methodological sophistication. No student of constitutionalism, however defined, can afford to neglect this book (and to look forward to the other volumes that will emanate from their project)."
--Sanford Levinson, Professor of Law and Government, School of Law and Department of Government, University of Texas, Austin


"[The authors] pose important questions of broad interest, and their findings, for all their tentativeness, are striking and will be of interest to the many communities of scholars (and the army of international experts and consultants) interested in constitution drafting. Readers who find data analysis deadening will be kept alert by a lively writing style."
Perspectives on Politics, Nathan J. Brown, George Washington University

Book Description

Why is it that some constitutions endure while others do not? In The Endurance of National Constitutions, Zachary Elkins, Tom Ginsburg, and James Melton examine the causes of constitutional endurance. The authors show that key changes in the design of a constitution can extend its life significantly.

See all Editorial Reviews

Product Details

• Paperback: 270 pages
• Publisher: Cambridge University Press (October 12, 2009)
• Language: English
• ISBN-10: 0521731321
• ISBN-13: 978-0521731324
• Product Dimensions: 8.8 x 6 x 0.7 inches
• Shipping Weight: 14.1 ounces (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (1 customer review)
• Amazon Best Sellers Rank: #1,114,839 in Books (See Top 100 in Books)

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7 of 8 people found the following review helpful:

5.0 out of 5 stars How old is your constitution?, December 14, 2009

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This review is from: The Endurance of National Constitutions (Paperback)

According to murmurs in Congress (particularly from Tom Coburn's office), there has been some debate recently about the value of political science as a discipline. As such, this seems like the perfect time for The Endurance of National Constitutions to debut. This book should be required reading for anybody in the rule of law sector, especially consultants advising governments on drafting a new constitution.

Constitutions are such a basic part of our political discourse, most of the prior scholarship has remained mired in debates over legal doctrine rather than observing the empirical data about constitutions. As such, Elkins, Ginsburg, and Melton provide the field an invaluable service with The Endurance of National Constitutions. Their study examines every single constitution written during 1789-2005 subject to a whole host of variables. In The Endurance of National Constitutions, their main concern is assessing what elements of constitutional design impact the constitution's longevity. For example, should the ideal constitution be more specific or more general in order to maintain popular and elite support? Unlike most studies about constitutions, they are less interested in "environmental" factors (e.g., wars, coups, etc.), although they do address these variables as well.

The results are fascinating. The authors conclude that, on average, far from providing a permanent legal basis, most constitutions only last for around 19 years. They then debunk several myths about successful constitutions by showing that three variables increase constitutional endurance significantly: 1) an inclusive constitution-drafting and ratifying process; 2) flexible amendment or interpretation procedures; and 3) greater specificity and scope. Constitutions that embrace these features will tend to survive decades longer than than those that do not. Ironically, these recommendations contradict the assumptions most American lawyers possess regarding the success of the U.S. constitution. Our constitution was 1) drafted by elite property owners; 2) requires 2/3 of Congress and 3/4 of states to amend; and 3) is relatively short and general. As such, Elkins, Ginsburg, and Melton consider the U.S. an odd outlier (in their wonderful analogy, like the 122-year-old lady who smokes and whose diet consists solely of chocolates).

The study is based on the text of the constitutions rather than other sources of constitutionalism, such as judicial interpretation of constitutions. This poses some dangers as many constitutions, particularly the U.S. Constitution, rely upon other constitutional sources to supplement the text. For example, a textual analysis of the U.S. Constitution would suggest that the federal government has few powers and could not regulate civil rights, environmental pollution, or many other fields of modern life. Yet, the Supreme Court has interpreted the seemingly lucid and innocuous word "commerce" to include all of these subjects. The authors realize this limitation and note that such as study would require far more resources and probably be impracticable. More importantly, they make a compelling case that they are primarily interested in constitutional "design," which concerns the original text.

As comprehensive as I found the analysis of The Endurance of National Constitutions, I did wish the authors had included a few more variables. In particular, they do not compare constitutions by the host country's type of legal system (e.g., common law, civil law, communist law). Some legal scholars will rightly note that civil and common law systems are converging to some extent, but I don't think this is merely a matter of "legal taxonomy." The classification also captures something about the country's legal history (whether it was colonized by the French, British, etc.) that could conceivably have some impact on constitutional endurance. Also, there does seem to be some evidence that common law countries provide stronger protection for property rights and possess more independence courts. Knowing Elkins and Ginsburg's other articles on the question of presidential versus parliamentary systems, I suspect they may not find the common/civil/communist law distinctions analytically useful, but it probably should have been addressed somewhere in the book.

I also would have liked to have seen a bit more about the mode and median of constitutional endurance, rather than just the mean. This is especially crucial in this study because, as it turns out, the relatively small and insignificant Hispaniola (Haiti and the Dominican Republic) has produced some 7% of the world's constitutions since 1789. In other words, these two outliers produce so many constitutions that they can affect global averages. The authors do discuss this issue in some places, but it's important enough that it might even have been worth calculating the correlations both with all constitutions in the dataset and with the outliers or extremes removed. I suspect that without Hispaniola in the dataset, the average lifespan of a constitution would be at least a bit longer.

Make no mistake - The Endurance of National Constitutions is probably the most important scholarly book about constitutions to come out in quite some time. Fortunately, the authors promise that The Endurance of National Constitutions is only the first book of several that they plan to release in conjunction with their Comparative Constitutions Project ([...]). In the meantime, this book will give you plenty to think about.