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Saturday, August 21, 2021

The Constitution in a Global Perspective

I'm going to try out some offbeat posts to test some new ideas.

I've long been fascinated by Franklin D. Roosevelt's Constitution Day Address of 1937. The most famous part of the speech is where FDR said that the Constitution is a "layman's charter" and not a "lawyer's contract." Over the years, I've often thought that I should write an article about the speech and its themes, but I've never quite figured out how to do so effectively. I'm getting close though.

One theme of the Constitution Day Address is that developments in constitutionalism abroad have an impact on our Constitution, just as what we do effects the rest of the world. FDR made this point against the backdrop of the rise of Nazi Germany and the Soviet Union. He argued that the extension of dictatorships tends to hurt the morale of democracies and that this challenge must be met with reform, by which he meant the New Deal.

This lesson is too often overlooked. American constitutional law tends to be very inward looking, even though outside events are always filtering through and shaping our judgments. I've written about this phenomenon in some of my work, but only in a scattered fashion. The essay I'm thinking about on the Constitution Day Address would do so more systematically.

Let's consider one overarching point along these lines. Since the Constitution was first ratified, the greatest power in the world was almost always Great Britain or the United States. (During the Napoleonic Wars, you could quibble with this point, but what I said is certainly true after 1815.) Both of these powers, of course, are constitutional democracies. The association between global power and a constitutional democracy must have been good for the morale of those systems and their appeal to other nations once they could choose. There were,  other great powers with other governmental systems (Germany and Russia, most notably), but they could never sustain their positions against the Anglo-American alliance.

Later in this century, though, the greatest power in the world may be a one-party dictatorship--China. How will that (or how is that) shaping our constitutional attitudes? Will that start to make people think that we need reform? Or think that our system is too inefficient to meet the challenges of modern society? I don't know, but it strikes me that an unstated assumption about our Constitution is that there is a connection between national greatness and constitutional democracy. This premise is starting to break down. What are the implications? 


Posted by Gerard Magliocca on August 21, 2021 at 08:04 AM | Permalink


"I don't know, but it strikes me that an unstated assumption about our Constitution is that there is a connection between national greatness and constitutional democracy."

Methinks more ought to be said here about your conception of greatness and what that entails. The 1787 US Constitution, coupled with the Bill of Rights of 1791, was drafted by a fledgling country. It was militarily weak and vulnerable, and economically dependent upon Europe in many ways. The Constitution was drafted by men who, steeped in English and world history, were wary of the very power they were generating, and so tried to delimit it accordingly. (They mistrusted great aggregations of power as such.) They also designed a constitution that dealt with the possibility of changing fortunes. Hence, the Second Amendment.

Moreover, the Framers designed a constitutional republic, NOT a democracy. Non-democratic republics existed in the Netherlands and Switzerland at the time, and the Framers understood those systems well. (It would also be ludicrous to construe Blighty's constitution of that time as being a democratic one - even by their own standards of the time; indeed, Parliamentarians would have considered the notion insulting.) Thus, the association between global power on the one hand, and the democracy on the other, which you are presenting as a matter of historical fact, is instead doubtful.

"He [FDR] argued that the extension of dictatorships tends to hurt the morale of democracies and that this challenge must be met with reform, by which he meant the New Deal."

What? So America was a dictatorship, or was dictatorial in some aspects, and so internal reform in terms of the New Deal was necessary? Regardless of whether some parts or all of the New Deal was unconstitutional, what does the dictatorship-democracy balance have to do with constitutionalism? Does democratic-will-of-the-moment trump constitutionalism? What is your point here?

Have you, moreover, never read anything about Soviet constitutionalism?

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Posted by: Nos Tempos do Imperador | Aug 21, 2021 1:02:46 PM

I have seen various people argue that the Constitution is supposed to be a "layperson's" (sex neutral!) constitution.

The spirit of this, e.g., is expressed when the Congress sent the Bill of Rights to the states for ratification:

"THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

The "public confidence" in part was promoted by use of the Bill of Rights, filled with broadly phrased simple phrases that much of the time guided us without lawyers parsing the careful specifics.


One major export has been constitutional principles, including some form of judicial review. Even Great Britain, the leader of parliamentary supremacy, now is somewhat restrained in the area of human rights.


As to China, if China becomes the leading world power, perhaps they will have to develop more into a constitutional power. China has already significantly in recent years become more of a market economy. It does in some fashion respect the rule of law, if probably in a quite arbitrary fashion. Perhaps, there will be more development there.

Does the show Firefly provide any insights, I wonder.

Posted by: Joe | Aug 21, 2021 11:48:50 AM

Just concerning foreign policy etc.... I quote from very illustrative ruling( court of appeal for the district of Columbia circuit, Bassem Al-Tamimi v. Sheldon Adelson).Here:

"The district court found the first Baker factor implicated because “[q]uestions touching upon the history of the ancient city [Jerusalem] and its present legal and international status are . . . committed to the Legislature and the Executive, not the Judiciary” and because “Plaintiffs ask this court to wade into foreign policy involving one of the most protracted diplomatic disputes in recent memory.” Al-Tamimi, 264 F. Supp. 3d at 78 (internal citations and quotations omitted). It found “several other[]” Baker factors implicated, including the third and sixth factors, because it believed a judicial decision might “conflict with the other branches’ sensitive positions regarding the legality and implications of the settlements, broader questions of Israel’s sovereignty, and the right to private ownership and control over the disputed lands in the region.” "

P.S: Just worth noting that rejected finally. But, really worth reading.



Posted by: El roam | Aug 21, 2021 10:26:18 AM

Just here, to the full and official document(Baker):


Posted by: El roam | Aug 21, 2021 9:37:11 AM


Speaking of China and great powers, one way to look at it, is the following:

And it is that what touches national security, or foreign policy (or even generally speaking internal policies) courts anyway, don't tend to intervene. It is well established doctrine (Baker precedent). Typically, one case should be very particular one, for courts to intervene and review or divert policy has to do with national security etc....

Also, not so clear, what the respectable author of the post, means by: "constitutional democracies". For today, you can't almost find a state with no constitution. Such thing, doesn't exist almost. Even without constitution, there are constitutional principles, or "basic laws"(see the Israeli state, as good illustration).

So, with or without constitution, this tends to be more formal issue, over effective one.

Here by the way, to Baker precedent:



Posted by: El roam | Aug 21, 2021 9:33:49 AM

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