When World Constitutions Took Over

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Catherine’s plan, as Colley explains, was to do just that. Despite constant challenges to her authority as a foreigner who had seized the throne and as a woman, she planned to wage large-scale war against the Ottoman Empire and its allies to expand Russia’s borders. To that end, she insisted on her sovereignty while ensuring the liberty and equality of her subjects. In the Nakaz, she wrote, “The equality of citizens consists in their all being subject to the same laws.” “Taxes are the tribute that each citizen pays for the preservation of his well-being,” she explained.

Catherine arranged for a multiethnic legislative body of 564 elected representatives to meet in Moscow in 1767 to discuss the Nakaz. Women were allowed to vote for their representatives. Serfs were not allowed to serve; peasants were. Fifty-four seats were set aside for Muslims. Although most of its work consisted of honoring rather than debating or ratifying the Nakaz, it was still a remarkable gathering.

The Nakaz spread far beyond Catherine’s domain. It was translated into German, Latin, French, and English by 1770, with editions in Greek, Italian, Latvian, Romanian, Swiss, and Dutch. The English edition’s translator referred to it as a “constitution,” and Colley alluded to its influence. Gustaf III, King of Sweden, and Catherine’s cousin drafted and printed a new constitution of “fixed and sacred fundamental law” in 1772. If American constitutional historians have paid little attention to the Nakaz, it’s not because the document failed to support Catherine’s regime as much as it is because Americans are provincial—rather than looking to Moscow, they look to their own backyards.

Wars wreaked havoc on the Americas, destroying lives, razing settlements, and halting trade. Thomas Jefferson blamed George III for plundering “our seas, ravaging our coasts, burning our towns, and destroying the lives of our people” in the Declaration of Independence. Independence movements in the Americas—starting with the revolutions in thirteen of Britain’s North American colonies and the first written Constitution, from New Hampshire in 1776, and continuing through Venezuela’s fiftieth—have a long history. The 1805 constitution of Haiti, drafted for former slave Jean-Jacques Dessalines, declared the political equality of Africans and their descendants, who had been “so unjustly and for so long a time considered as outcast children,” according to the preamble.

The Estates-General was reconvened by the King of France in 1789, nearly two centuries after they had last met, to levy new taxes because France had become bankrupt due to all those wars. The revolutionary National Assembly adopted a constitution two years later that guaranteed, among other things, equal taxation for all citizens, the right to vote for all citizens who paid a minimum amount of taxes, “public instruction for all citizens,” and “liberty to every man to speak, write, print, and publish his opinions.”

In this light, the 1787 constitution drafted in Philadelphia appears both less and more original. According to Colley, nine of the first ten Federalist Papers deal with the dangers of war, while two more deal with the insurgency. Thirty-five of the fifty-five delegates had fought in the American Revolutionary War. According to Connecticut delegate Roger Sherman, four reasons exist for adopting a new constitution:

  • Defense against foreign powers
  • Protection against domestic insurgencies
  • Treaties with foreign nations
  • Foreign commerce regulation

One factor that distinguishes the Philadelphia constitution from the Nakaz, according to Colley, is how quickly, easily, and successfully the American document was circulated. In Russia, there were no newspapers or provincial presses. Anyone who wanted a copy of the United States Constitution, on the other hand, had to travel to Washington, D.C. Within days of the convention’s adjournment, a constitution could be drafted.

States write constitutions, states print constitutions, and constitutions guarantee press freedom. The most frequently asserted right—more often than freedom of religion, freedom of speech, or freedom of assembly—was freedom of the press in the nearly 600 constitutions written between 1776 and about 1850. “Print was deemed indispensable if this new technology was to function effectively and do its work, both at home and abroad,” according to Colley.

The number of published constitutions and collections of constitutions increased as more states adopted them. “Whole nests of pigeon-holes full of constitutions readymade, ticketed, sorted, and numbered; suited to every season and every fancy,” Edmund Burke wrote in 1796 of a chief architect of the 1791 French constitution. A Strasbourg newspaper even published a template for anyone who wanted to write a new constitution; all they had to do was fill in the blanks. The printed constitutions of the United States (1787), France (1791, 1793, and 1795), Poland (1791), Batavia (1798), Sweden (1809), and Spain were all cited verbatim in Norway’s 1814 constitution, which was hastily written in Oslo under threat of Swedish invasion (1812). According to Colley, the new Constitution was then printed and distributed through post offices, with the government encouraging citizens to post copies on their homes’ walls. In the eighteen-twenties, Ram Mohan Roy and James Silk Buckingham, editors of the Calcutta Journal, published translations of proposed constitutions for Peru, Mexico, and Gran Colombia—all of which allowed for equal citizenship of people of different races—while ignoring the United States Constitution and all-new constitutions being drafted by delegates from India. In those years, Americans in the United States read the autobiography of William Grimes, a fugitive slave who wrote, “If it weren’t for the stripes on my back that were made while I was a slave, I would in my will, leave my skin as a legacy to the government, desiring that it might be taken off and made into parchment, and then bind the Constitution of glorious happy and free America.”

Constitutions grant rights but also have the power to revoke them. “A constitution is a standard for the people to rally around,” Mary Wollstonecraft wrote in 1794, praising the promise of constitutionalism. It is a government pillar, the glue that holds all social unity and order together. The investigation of its principles transforms it into a source of light, from which rays of reason emerge, gradually advancing the mental abilities of the entire community.” But, according to Colley, constitutions have almost always made things worse for women. Women had informal rights in a variety of places before constitutions were written; constitutions explicitly excluded them, not least because, in Colley’s formulation, a constitution is a bargain struck between a state and its men, who made sacrifices to the state as taxpayers and soldiers, which were distinct from the sacrifices women made during wartime. All of this constitutional printing and copycatting also spread Western notions of women’s very limited sphere throughout the world. In 1846, female chiefs made up a third of Hawaii’s House of Nobles; Hawaii’s 1850 constitution limited suffrage to men. Before the Meiji Constitution of 1889—the first in East Asia, heavily influenced by Germany’s 1871 constitution—prohibited Japanese women from voting, they had participated in politics to some extent. “Once written into law and put into print,” says Colley, “female disadvantages became harder to change.”

Indigenous and enslaved peoples were denied political rights under the United States Constitution. State constitutions adopted in the nineteenth century declared sovereignty over native lands while prohibiting women, African-Americans, and Chinese immigrants from voting, making it nearly impossible for any of these people to change their status through electoral politics’ traditional mechanisms. These constitutions, according to Colley, influenced constitutions in places like Australia and New Zealand, where invaders had seized the lands of indigenous peoples such as the Maori. California adopted a constitution in 1849 that guaranteed the right to vote to “every white male citizen.” It asserted sovereignty over “all the islands, harbors, and bays, as well as adjacent to the Pacific Coast.” “Look for example at what has recently been going on in California,” a Scottish settler in Sydney said the following year, claiming that the people there had “framed a constitution for themselves, that might serve as a model for any nation upon the face of the earth.”

This, however, had a reversal effect. The 1849 constitution of California, which outlawed slavery, was part of a global movement to abolish human slavery that included Tunisia, Ecuador, Argentina, Peru, Venezuela, and Hawaii in the 1840s and 1850s. Indigenous leaders, particularly monarchs like Tahiti’s Chief Pomare and Hawaii’s King Kamehameha II, could fend off colonization by adopting constitutions. Constitutions may also pose a threat to white supremacy. “The people of Liberia do not require the assistance of ‘white people’ to enable them to make a Constitution for the government of themselves,” one delegate declared at the country’s constitutional convention in 1847. The rule that states make constitutions also applies to the American Civil War. Americans rewrote their Constitution with the Fourteenth and Fifteenth Amendments, adopting revisions to the Constitution that changed its fundamental principles.

The Meiji Constitution of 1889 introduced constitution-writing to Asia, prompting a surge in constitution-writing across Latin America. China began studying Western and Japanese constitutions in 1906 in preparation for writing its own. After the Great War, which claimed the lives of nearly forty million people, the process of drafting a constitution took a new turn. That was a change in the way things were done, not just in government but also in society. Many postwar constitutions, many of which did not last long, share some characteristics: a lack of reference to God; and, especially in socialist constitutions, a concern with the social. Their authors frequently consulted collections such as the Irish Free State’s 1922 publication of “Select Constitutions of the World” (along with its own new Constitution). Following WWII, newly independent countries in Asia and Africa and civil wars around the globe added to the growing pile of often short-lived constitutions. Many constitutions make big promises but deliver little. “Why have multiple societies and peoples kept on investing time, imagination, thought, and hope in this kind of paper and parchment political and legal device so insistently in light of the limited longevity of so many constitutions over the centuries, and the limited effectiveness in many cases of these texts as guarantors of responsible rule and durable rights?” Colley asks. Because, she claims, imperfect constitutions are the best we can hope for in a world that is “deeply uncertain, shifting, unequal, and violent.”

Alternatively, perhaps we can hope for more. In his book “Constitutional Amendments: Making, Breaking, and Changing Constitutions,” Richard Albert writes, “No part of a constitution is more important than the procedures we use to change it” (Oxford). Writing a constitution is an expression in and of itself. Amending a constitution is also a form of constitutional writing (and printing) that Colley ignores, although 96 out of every 100 codified constitutions contain an amendment provision. Constitutions establish the ground rules; amendment provisions establish the ground rules for changing the ground rules.

The United States was the first country to have a constitution that allowed for self-revision. “The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid, as part of this Constitution, when ratified,” according to Article V, the amendment clause. The Constitution would have been unable to be ratified if Article V had not been included. Everyone recognized the Constitution’s flaws, and Article V left open the possibility of making it, and the Union, “more perfect.” When arguing for ratification, federalists pointed to the amendment provision. The fact that the people “may change their constitution and government whenever they please is not a principle of discord, rancor, or war: it is a principle of melioration, contentment, and peace,” according to James Wilson, a delegate from Pennsylvania. The only way to change the rules without an amendment provision is to overthrow the government through insurgency.

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The issue in the United States is that amending the Constitution is extremely difficult. It’s often thought to be structurally impossible these days. Still, much scholarship suggests that it’s only culturally impossible, thanks to Linda Colley’s reflexes of reverence for the Constitution, which inspired her to work on “The Gun, the Ship, and the Pen.” The Constitution’s government system is broken in a variety of ways, with corruption, political decay, and anti-democratic measures such as gerrymandering, the filibuster, campaign spending, and a limit on the size of the House of Representatives. “To the extent that we continue to venerate, and thus not subject to truly critical examination, our Constitution, we are in the position of the battered wife who continues to profess the ‘essential goodness’ of her abusive husband,” writes law professor Sanford Levinson. Or, as Burke put it, “a state without the ability to change is a state without the ability to conserve.”

The United States Constitution has been rewritten three times: in 1791 when the first ten amendments of the Bill of Rights were ratified; after the Civil War, when the Reconstruction Amendments were ratified; and during the Progressive Era, when the Sixteenth, Seventeenth, Eighteenth, and Nineteenth Amendments were ratified. It’s time for a new beginning.

Other countries amend their constitutions regularly. Americans do not hold all constitutions in high regard; in fact, they are eager to amend state constitutions. “Historically, American state constitutions have been amended over 7,500 times, averaging 150 amendments per state,” Albert writes. This stands in stark contrast to the United States Constitution, which has an extremely low average annual amendment rate of 0.07, while the average across all American state constitutions is 0.35, which is higher than the global average of 0.21.”

By force of practice, rather than being amended, the Constitution has been betrayed, circumvented, violated, and abandoned. Is it possible for a U.S. president to compel a foreign leader to meddle in an American election? This appears to be the case. Is it possible for a U.S. president to refuse to accept the results of a free and fair election and incite a mob to attack Congress to prevent the vote from being certified? This appears to be the case. The United States Constitution, like the unwritten Constitution of the United Kingdom, is more than the sum of its words; it is the accumulation of practices and precedents.

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That would have made Kurt Gödel very happy. Because constitutional scholars are relatively certain of what Gödel had in mind, Gödel’s Loophole is nothing like Fermat’s Last Theorem. It’s a legalized version of the idea that if a genie emerges from an oil lamp and grants you three wishes, you should start by wishing for more. Article V, the amendment provision, does not prohibit amending Article V, which is a genuine oversight. It’s difficult to ratify a constitutional amendment, but a President with enough power and blindly loyal supporters could get an amendment ratified that changed the mechanism of the amendment itself. If a revised Article V allowed a President to amend the Constitution by fiat (e.g., “The President, whenever he shall deem it necessary, shall make amendments to this Constitution, which shall be valid to all intents and purposes as part of this Constitution”), he could turn a democracy into a dictatorship without ever doing anything illegal. What Gödel didn’t realize was that it’s actually a lot simpler.

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