The U.S. Constitution promises freedom of speech, freedom of assembly, and the right to a speedy trial, but it completely neglects the inalienable right to sports, leaving citizens with no guarantee that they can enjoy Little League games and Superbowl parties. Futebol-loving Brazilians don’t have such worries. Their constitution dedicates an entire section to sports, including public funding and the logistics of something called “sports tribunals.”
There are almost two hundred countries with constitutions currently in existence, and their contents vary considerably. Documenting and analyzing why and how they vary is the mission of the Comparative Constitutions Project (CCP), which was launched in 2005 by Zachary Elkins, associate professor of government at The University of Texas at Austin, and Tom Ginsburg at the University of Chicago.
For almost two decades, Elkins, Ginsburg, and their many students have been working on these foundational documents of the modern political era, along the way creating a set of resources that can be used by anyone from scholars studying constitutions to nations drafting them.
Tracking Constitutions, Old and New
For most of human history, societies functioned without constitutions. In 1787, however, just over a decade after the Declaration of Independence, the United States decided it needed a codified document to hold together its nascent union. Other nations soon followed suit.
“It really wasn’t until the early 1800s that the genre took off,” say Elkins. “And now pretty much every country has a constitution or something resembling a constitution, but it didn’t have to be that way.”
Following the precedent set by the U.S. Constitution, modern constitutions function as a kind of higher law that can’t easily be overturned and that supersedes any of a nation’s other laws. They establish how the government will be structured (who can create legislation, how elections will be conducted, etc.), and they usually define a set of rights and which individuals will possess them. They are also not exclusively the product of democracies. Elkins notes that authoritarian governments are fond of the form as well and have found ways to deploy constitutions to subvert and repress democracy, in many cases using ostensibly democratic provisions to do so.
Over the years, the CCP has created a comprehensive chronology of constitutions, along with a repository for the texts themselves and their amendments. Since many constitutions don’t survive the test of time, the number of historical documents that the CCP catalogues exceeds the number of countries: 799, along with 2,999 amendments. The project records some 600 characteristics of these documents, including a set of indices such as scope, length, executive and legislative power, judicial independence, and number of rights. Ecuador currently leads the world on that last metric, with 99 rights.
Like many innovations, the founding of the CCP occurred somewhat by chance. Back in 2005 Elkins, then a professor at the University of Illinois, was having lunch with fellow then-Illinois faculty member Tom Ginsburg. Elkins remembers complaining about the lack of data on the world’s constitutions, something that would facilitate his and presumably others’ research. One thing led to another, and the two scholars decided to start building a database themselves. The data collection led to other projects. In 2013, Google awarded the team two grants to create an indexed set of texts that would become the Constitute website, a resource for constitution drafters.
While the CCP website now houses data that is mostly used by constitutional scholars doing quantitative analysis, Constitute allows non-academic users to view and compare constitutional texts alongside each other (the way one might when deciding between two cellular data plans). It has data visualization tools for observing changes in the prevalence of various topics in constitutions around the world over time. One can see, for example, that only about a quarter of the world’s constitutions currently contain census provisions, whereas 88% have something to say about voting restrictions. And very few constitutions regulated mass media before the 1980s. (It’s still not universally popular today, with only 20% of constitutions containing such provisions.) All of the constitutional texts are also available in Spanish and Arabic.
Much of the work of converting a stack of documents into both downloadable data for scholars and fun infographics was done the old-fashioned way, by humans reading through text. Using a 650-question survey, the CCP indexed constitutions by topics of interest. Two graduate students would read each document independently and answer the survey questions, which were often yes/no questions like, “Does the constitution provide for at least one procedure for amending the constitution?” and “Does the constitution place any restrictions on the right to vote?” After that first round of analysis, Elkins and Ginsburg would review the surveys and reconcile any differences. When possible, one of the readings would be done in the constitution’s original language to make sure nothing was lost in translation. These survey results were used to create a taxonomy for categorizing the many characteristics of constitutions.
Growing Word Counts and the Rise of Rights
In 2009 Elkins and Ginsburg, along with CCP member James Melton, published a book titled The Endurance of National Constitutions, using data they’d collected since the project’s founding. Among their observations was that two particular properties correlated with greater constitutional longevity. The first was having a flexible amendment procedure. The ability to make additions or changes prevents a country from having to scrap an entire constitution every time it no longer fits its needs. The second was adopting a more inclusive and transparent process during the drafting of the constitution, which can include public participation or just making sure that minority groups within a nation are represented in some fashion. The resulting buy-in from such collaboration is essential, says Elkins. “The reason that constitutions last for the most part is that they are revered among the citizenry, who know the rules and are willing to step up if the executive tries to transgress the rules.”
Beyond that, nations crafting new constitutions face a series of choices, from how to divide power between their executive and legislative branches to how specific to get about enumerating rights and the groups who will be granted them. Among the trends that Elkins and his colleagues have observed is that constitutions have grown considerably longer since the first crop. The U.S. Constitution has a relatively low wordcount of 7,762, whereas the lengthiest document — India’s — manages to cram in 146,385 words. (For reference, that’s almost a Jonathan Franzen novel.) And rights have come to occupy an increasingly large portion of the documents. CCP currently tracks about 118 rights, which doesn’t include some of the more recent additions.
“The rights section often gets all the attention,” Elkins notes. “Now it’s hard to imagine a constitution that doesn’t have a set of rights, even though our own didn’t have one right off the bat.”
Some countries opt to include only “negative rights” in their constitutions, meaning rights that protect citizens from excessive government meddling in their affairs. Freedom of speech and religion are notable examples of this category. Others include “positive rights” that guarantee access to things like education and health (and occasionally even sports). There is always a negotiation, says Elkins, between generality and specificity in the development of constitutional rights. It can be useful to have rights specifically enumerated rather than subject to interpretation, but this strategy can lead to omissions as cultural norms evolve.
“It’s almost like inviting people to a party,” says Elkins. “It’s a dangerous thing to leave off important guests.”
The U.S. Constitution is general enough to be interpreted to include more groups over time, but it may be overdue for a renovation in some areas, Elkins admits. “Our constitution is so underdeveloped. They wrote it in a summer for a society of four million farmers, and even then, it was a compromise document. So, it’s kind of strange that we’re still using it in the era of iPhones.”
Topping his list of suggested improvements is making Senate apportioning more representative of population size, getting rid of the electoral college, adopting ranked-choice voting, and revising the second amendment in a way that would “reaffirm the individual right to bear arms but also make it subject to public health concerns.” He would also eliminate judicial life terms, limiting them instead to 18 years, and add a right to health, which is included in many modern constitutions.
There are also elements of our constitution he thinks have enduring value, such as the post-Civil War amendments, particularly birthright citizenship for the children of all residents, including immigrants. “We have a really generous citizenship policy,” he points out. “It brings us together in a way that doesn’t happen in other places.” He also notes that the U.S. was pioneering in its Bill of Rights amendments and that, however frustrating it may be in terms of passing legislation, the checks and balances afforded to the minority party when it’s not in power are essential for assuring representation for more than just one set of interests.
Elkins is currently working on another book utilizing CCP data to observe the diffusion of ideas via constitutions.
“People are plagiarizing constitutions constantly,” he notes. “Nobody is writing these things from scratch, they’re all looking at other constitutions and borrowing ideas, so ideas are spreading from one constitution to another, and that’s interesting to track.”
While not itself a constitution, the 1948 U.N. Universal Declaration of Human Rights is an example of a document with notably broad reach. He and Ginsburg conducted an analysis showing that constitutions created afterward were more likely to contain rights enshrined in the U.N. document, and more likely to omit rights that were not, even if those rights had been popular in their regions prior to that point.
One area that the CCP is increasingly focused on is public consultation, which gets back to the importance of representation in the constitution drafting process.
“At the beginning of every constitutional process they tend to ask the public for suggestions and comments,” Elkins explains. “And even though they have that public comment period, they typically won’t analyze those comments.”
Gathering comments and then mostly ignoring them doesn’t seem like the best way to get the public on board with a new constitution. But to be fair, hundreds of thousands of freeform comments can be an unwieldy mass of information. Luckily, the CCP has plenty of experience converting large volumes of text into more manageable data. Utilizing the indexing system they’d created for constitutional characteristics, they were recently able to analyze about 250,000 public comments gathered from town hall meetings in Chile to demonstrate which ideas came up most frequently.
“We think if we give them the information in the right form, it might actually be useful,” says Elkins about potentially providing such data to nations’ constitutional drafters. “They also might use it rhetorically on the floor of the assembly. If they’re trying to convince someone that the right to health is necessary, they could say that 40% of the public said it was important to them.”
At the same time, the CCP is working to find better ways of gathering such comments in the first place. Simply asking the average citizen what they’d like to see in their constitution doesn’t always yield the most constructive input because most people have little or no idea about the contents of constitutions, their own or those of other nations. Instead, the CCP is organizing focus groups where people can use the Constitute site to get a sense of what options already exist. Elkins runs such focus groups around the world. In the U.S., they’re conducted through the National Constitution Center in Philadelphia under the heading 28th Amendment Project. As the name suggests, participants select their top picks for the next U.S. constitutional amendment by exploring provisions in other countries’ constitutions.
CCP is also working to make its text analysis tools generalizable to other kinds of documents. They are collaborating with historian Jill Lepore, who has collected every amendment ever proposed to the U.S. Constitution, about 12,000 in total, for inclusion in Constitute, indexed in the same way the world’s constitutions are.
The document genre with which Elkins’ is currently most fascinated doesn’t pertain to governments at all. It is the “household constitution,” an agreement drawn up by family members or roommates to ensure that they domiciles don’t erupt into civil war. Elkins has collected about 250 such documents thus far. What factors go into forming a more perfect union of people renting a house together? First and foremost is codifying thermostat settings to a range that everyone can agree upon, or at least tolerate. Creating a rotation for dish duty was also a popular item. For undergrads, establishing rules for overnight guests was particularly important.
“Those are the things that tend to drive people apart,” says Elkins. “And I find that once they sit down and work out an agreement, things work out really well.”
You can tell a lot about a nation (or a household) by what they choose to include in their constitution. Elkins stresses the importance of not overlooking preambles when exploring constitutions. “You might think of that as just boilerplate, but not at all. If you read the preamble, it really expresses the values, the aspirations, and the origins of the country. You get a really good sense of how a country sees itself if you read the preamble, or at least how the drafters thought about it.”