by George Athan Billias. New York: New York University Press, 2009. 544pp. Hardback $60.00. ISBN: 9780814791073.
Reviewed by Miguel Schor, Professor of Law, Suffolk University Law School, mschor [at] suffolk.edu.
AMERICAN CONSTITUTIONALISM HEARD AROUND THE WORLD is a fine work of scholarship by historian George Athan Billias that provides a satisfying descriptive filling sandwiched inside a somewhat less convincing theoretical wrapper. The descriptive filling consists of nine chapters (pp.53-356) that periodize the influence of American constitutionalism abroad. These descriptive chapters provide a wealth of detail and show a fine command of a wide range of sources. The theoretical wrapper assesses the influence of American constitutionalism abroad and makes two arguments. The first (pp.3-52) is that the distinctive contribution of American constitutionalism lies in its emphasis on written documents. The second (pp.357-372) is that the enduring influence of American constitutionalism can be found in the spread of democracy around the globe. Billias’ argument that the Constitution needs to be placed within the context of the written constitutional documents of the founding era is illuminating, but his conclusion that the influence of American constitutionalism can best be measured by the spread of democracy is problematic.
The descriptive chapters are invaluable. Chapter 3 deals with the struggle over constitutional ideas in Europe from 1776 to 1800. It recounts the key debates over the comparative advantages between a written constitution and an unwritten constitutional tradition and whether the United States or France was the source of the rights tradition in Western constitutionalism. In particular, the core idea of a constitution (p.57), which is that “rational institutions . . . could be discovered that would have a universal appeal to peoples throughout the world,” took hold in Europe. It is remarkable that this idea became central to constitutional projects around the globe so soon after Hamilton (1787) observed that it had fallen to the American people to “decide the important question . . . whether societies of men are really capable or not of establishing good government from reflection and choice.”
Chapter 4 grapples with the influence of American constitutionalism in Latin America. Billias ably discusses how American constitutional ideas were transformed once “transplanted” to the region and whether the adoption of constitutionalism facilitated political instability in the nineteenth century. Billias is to be commended for emphasizing the constitutional experience of Latin America which has long been marginalized by scholarly accounts of Western constitutionalism. This marginalization is particularly troubling since the historical experience of the region may provide rich lessons for constitutional projects in new democracies, which also suffer from a [*156] marked gap between formal constitutions and constitutional practices.
Chapter 5 recounts the role played by American constitutionalism in the European revolutions of 1848. While those revolutions arose in protest of local conditions, “American constitutional ideas . . . were discussed almost everywhere, indicating that the American Dream persisted” (p.177). Although these revolutions were largely unsuccessful in establishing republican government, they changed the “worldview of European peoples” as European rulers would henceforth have to deal with pressures for democratization (p.200).
Chapters 10 and 11 deal with the influence of American constitutionalism in the late twentieth century. By the second half of the twentieth century, the basic principles of American constitutionalism such as popular sovereignty, limited government, and protection of individual rights had become “Western and international norms” (p.318). Billias (p.320) concludes that American constitutionalism played an important role in the worldwide democratic “surge” that occurred after 1974 even if the influence was “more indirect than direct.”
Billias concludes with a theoretical chapter (pp.357-371) that links democratization to the influence of American constitutionalism. The causes of democratization are complex, but certainly the spread of constitutional ideas are part of the causal story. The big question, however, is whether American constitutionalism is central to the global constitutional project. American scholars tend to measure global constitutionalism against what they know best, but this overemphasizes the influence of American constitutionalism. The once predominant position of the United States within the Western constitutional tradition is under challenge by constitutional seeds planted immediately after the Second World War, such as the Universal Declaration of Human Rights (1948) and the German Basic Law (1949). The United States Constitution is both much older and very different than most of the world’s constitutions. Presidentialism, for example, has proven a troubling export that may well facilitate dictatorship (Linz 1990). The most successful form of separation of powers in new democracies is semi-presidentialism, and its virtues in sustaining democracy are also questionable (Skach 2005). Federalism is perhaps the most successful American constitutional export, yet most nations have rejected the troubling and anti-democratic features of American federalism such as strong bicameralism coupled with a high degree of malapportionment in the upper house (Dahl 2001). Judicial review is also generally considered a successful American export but there are problems with this view. The idea that rights may be limited by legislative bodies is more firmly ensconced abroad than it is in the United States (Robertson 2010). Bills of rights abroad often contain protection for positive socio-economic rights, whereas the American Bill of Rights only protects negative liberties (Glendon 1992). National high courts abroad are typically subject to different and stronger institutional checks than is the American Supreme Court (Schor 2009). [*157] It is not surprising that a nineteenth century constitutional project has been reworked and revised by contemporary constitution makers. These differences suggest, however, a more nuanced view of the influence of the American constitutional order than is posited by Billias. There are better models for modern constitution makers to consider than the United States Constitution.
Billias’ work is nonetheless an important addition to the literature on constitutionalism. It is invaluable for scholars interested in the migration of constitutional ideas. It nicely counterbalances the existing literature that tends to emphasize constitutional design at the expense of the history of ideas. Certainly the Framers asked the right question by arguing that there was a relationship between institutional arrangements and political outcomes. It is not surprising that contemporary constitution makers with over two centuries of experience to draw from have reached different conclusions about how best to achieve a “more perfect” democracy. The only surprise is how resistant the United States has been to learning from the constitutional experience of democracies around the globe.
Dahl, Robert A. 2001. HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? New Haven: Yale University Press.
Hamilton, Alexander. 1787. THE FEDERALIST PAPERS: No. 1, available online at http://avalon.law.yale.edu/18th_century/fed01.asp .
Linz, Juan. 1990. “The Perils of Presidentialism.” JOURNAL OF DEMOCRACY (Winter): 51-69.
Glendon, Mary Ann. 1992. “Rights in Twentieth-Century Constitutions.” UNIVERSITY OF CHICAGO LAW REVIEW 59: 519-538.
Robertson, David. 2010. THE JUDGE AS POLITICAL THEORIST: CONTEMPORARY CONSTITUTIONAL REVIEW. Princeton: Princeton University Press.
Schor, Miguel. 2009. “Judicial Review and American Constitutional Exceptionalism.” OSGOODE HALL LAW REVIEW 46: 535-563.
Skach, Cindy. 2005. BORROWING CONSTITUTIONAL DESIGNS: CONSTITUTIONAL LAW IN WEIMAR GERMANY AND THE FRENCH FIFTH REPUBLIC. Princeton: Princeton University Press.
© Copyright 2010 by the author, Miguel Schor.