'American Constitutional Exceptionalism Revisited': A Q&A with Mila Versteeg

April 2, 2014

Mila VersteegIn political discussions, it is often considered a given that United States constitutionalism is exceptional in nature. But Mila Versteeg , a comparative law expert at the University of Virginia School of Law, has found many U.S. state constitutions to be strikingly similar to national constitutions found all over the world, diminishing the case for exceptionalism.

Versteeg, who recently co-authored the article "American Constitutionalism Exceptionalism Revisited" with Emily Zackin, a professor in the Department of Political Science at The John Hopkins University, says a different picture forms when state constitutions are considered.

Why did you decide to study state constitutions?

When we began this project, Emily’s background was in U.S. state constitutions while mine was in comparative national constitutionalism. As we discussed our individual research, we quickly realized that America’s state constitutions bear a remarkable resemblance to national constitutions all over the world. We thought that this similarity had important implications for the study of constitutional politics in general, and in particular, could contribute the debate about how unusual America’s constitutional system really is.

In addition, we think it is important to study U.S. state constitutions in order to fully and properly understand the American constitutional tradition. In the paper, we argue that trying to understand American constitutional politics by studying only the U.S. Constitution is like trying to understand an elephant by studying only its trunk. While the trunk is obviously a distinctive and critical part of the elephant, it is, in the end, only one part of many. If we study only the trunk, we can’t explain how elephants reproduce, digest their food, get from place to place, etc. Similarly, the U.S. Constitution is a central and extremely important feature of America’s constitutional tradition, but states are responsible for an enormous amount of policymaking in America, and state constitutions establish and constrain the institutions that do that policymaking. We thus believe it is important to include states when assessing America’s constitutional tradition.

What are your core findings? And what do they tell us about U.S. constitutionalism?

We find that American state constitutions are rather similar to other national constitutions, but very different from the federal Constitution. As I’ve documented in previous research , the U.S. Constitution is increasingly an outlier around the world, and is no longer a model for constitution-makers around the world. In this article, we show that the same is not true for state constitutions. First, like most other national constitutions, state constitutions are rather long and elaborate documents that set out government policies in painstaking detail. It is common for both state constitutions and other national constitutions to cover topics such as fiscal policy and economic development, management of natural resources, or matters of cultural significance and citizen character, and to deal with these matters in much detail. Second, like most of the world’s constitutions, state constitutions are frequently amended or overhauled. On average, state constitutions are revised every three years, while national constitutions are revised every five years. Third, like most of the world’s constitutions, state constitutions contain positive rights relating to, e.g., education, labor, social welfare and the environment. We conclude that, at the state level, Americans have written their constitutions much like everyone else, and that the constitutional exceptionalism of the United States is confined to the federal Constitution alone.

What part of American constitutional exceptionalism are you actually revisiting?

It is widely understood that, in a comparative constitutional context, America’s federal Constitution stands out. Its omission of positive rights, its brevity, and its remarkable duration and stability make it exceptional by global standards. As a result, people often conclude that Americans have treated only negative rights as a matter of constitutional law, refusing to make constitutional commitments to positive rights, like the right to education or environmental protection. In addition, Americans often appear to be exceptionally concerned about interpreting constitutional texts in light of their original meanings, and unusually averse to altering those texts through the formal amendment process.

We revisit each of these descriptions of American constitutional politics, and argue that the United States’ federal Constitution does indeed stand out along all of these dimensions, but that it is even different from America’s own state constitutions. America’s state constitutions actually work much the way national constitutions work throughout much of the world. If we include state constitutions in our descriptions of America’s constitutional politics, the United States no longer looks like such an outlier.

What are you working on next?

We are working on a second paper that explores the logic behind most constitutions written by foreign and state constitution-makers. Our findings suggest that the federal Constitution is truly exceptional, compared not just with foreign constitutions, but also with the constitutions of the American states. The exceptional nature of the federal Constitution has produced a remarkable gap between constitutional theory and the practice of constitution-making around the world. Constitutional theory appears to take for granted the federal Constitution’s hallmarks: brevity and rigidity. However, as we have detailed in our article, most modern constitutions are neither brief nor rigid, but are instead flexible and detailed policy documents. To the extent these constitutional traits have been recognized by constitutional theorists, they have been dismissed as the unprincipled product of subnational constitutional politics.

Our next project suggests that constitutional theorists have been mistaken. We seek to develop a novel and alternative theory of constitutional design that we believe describes the real-world practice of constitution-making more accurately than existing theories. Specifically, we intend to argue that, under some circumstances, constitutional specificity and flexibility can serve as a perfectly rational mechanism for constraining those in power. Under this logic, people aiming to bind their governments do not do so by entrenching higher-order principles in hard-to-amend, judicially enforced constitutions. Instead, they attempt to limit legislative, executive and judicial discretion alike by giving very specific guidance to each of the branches. These specific instructions are coupled with an ongoing monitoring and adjustment of the government’s marching orders through frequent revision. It is a design strategy that reveals a distrust of those in office, including judges, and endows popular majorities and future generations with increased influence. We believe that this strategy characterizes most of modern constitution-making.

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