Commentary illustration

By A.E. Dick Howard

In May 1776, the Virginia convention, meeting in Williamsburg, took three momentous steps. Its members agreed to draft a declaration of rights for Virginia, they set out to adopt a republican constitution, and they instructed Virginia’s delegates in Philadelphia to introduce a resolution for American independence. The age of rights and of constitutions was well underway.

America’s revolutionary era was one of history’s great moments. Events in America stirred intense interest throughout the Atlantic world. A new era was seen as dawning, embodying ideas of liberty and equality.

In France, the Marquis de Condorcet declared that the author of the Virginia Declaration of Rights deserved “the eternal gratitude of mankind.” When the French, in 1789, drafted their Declaration of Rights of Man and the Citizen, its authors (the Marquis de Lafayette playing a key role) drew heavily on the Virginia document.

In 1791, France’s National Assembly debated what a new constitution should look like. The American experience was close at hand. Moderates, arguing for bicameralism and checks and balances, cited the precedent of the Massachusetts Constitution of 1780 (whose chief architect was John Adams). Radical members of the French Assembly invoked Pennsylvania’s 1776 Constitution, the most democratic of the early state constitutions.

Centuries have passed since the founding eras in America and France. During that time, American constitutional ideas have been planted on various and sundry shores. Sometimes the transference has been voluntary, prompted by admiration for the American experience. In other instances, the vehicle of transference has taken different forms, such as colonialism or war.

Admiration for and emulation of American ideas animated much of the discussion when Germans gathered in Frankfurt in 1848 to draft a liberal constitution. One delegate, an eminent constitutional scholar at Heidelberg, said, “Let us follow the American example, and we shall harvest the most splendid fruits.” The Paulskirche Constitution was never implemented (it ran into conservative opposition, especially in Prussia). But that document remained a key strand in German constitutional culture. Many basic American ideas — federalism, rule of law, constitutional supremacy — that influenced the Paulskirche Constitution have their parallels in Germany’s Basic Law, adopted in 1949 and in force today.

Colonialism has been another means for the implanting of American constitutional ideas. The Spanish-American War (1898) left the United States in control of the Philippines. Stirred by the spirit of manifest destiny, Sen. Albert Beveridge of Indiana proclaimed, “American law, American order, American civilization, and the American flag will plant themselves on shores hitherto bloody and benighted.” God, he said, “has marked us as his chosen people, henceforth to lead in the regeneration of the world.”

Americanization of the Philippines had three main goals — the establishment of public education (using American textbooks), the transfer of American law and jurisprudence, and gradual steps toward self-government. In 1934, a Filipino convention drafted a constitution which, though not an exact copy of the United States Constitution, reflected strong American influence. It created a presidential system, constitutional (rather than parliamentary) supremacy, and judicial review of legislation. In 1946, the United States transferred sovereignty to the Filipino people.

Japan’s experience after World War II illustrates how military occupation can plant constitutional ideas. Japan surrendered in 1945. Unlike defeated Germany, Japan’s government stayed in place, although under Allied rule. Gen. Douglas MacArthur prodded the Japanese to draft a new constitution to replace the existing charter, which had been based on Prussia’s 1885 constitution. It soon became apparent that, left to their own devices, the Japanese drafters would make few significant changes. MacArthur decided that he would have to act quickly, lest Russia have a voice in the making of a constitution. He directed his military government team to go to work. They reported back in a week’s time with a draft. The Japanese resisted agreeing to the American plan, but they had little choice. Finally, they yielded, and the new constitution became effective in 1947.

One might have imagined that, once the occupation ended, Japan would scrap the Americans’ design and write their own constitution. Yet, after all these years, the 1947 constitution is still in force. Indeed, it has never been amended (although there has been debate over the status of the famous Article 9, renouncing war). The fact is that, whatever the constitution’s provenance, the Japanese have “domesticated” it, shaping practice and usage in line with Japanese customs.

Since World War II, liberal constitutional democracy has supplanted dictatorships and authoritarianism in many lands. The 1970s saw democracy come to Spain, Greece and Portugal. In the 1980s, authoritarian regimes were shunted aside in Chile and Argentina.

And, after 1989, when the Berlin Wall came down, communism collapsed, bringing an end to the Soviet empire.

As new constitutions have been written, there are many influences, including international documents such as the Universal Declaration of Rights. Today’s drafters are unlikely to use the literal text of the United States Constitution as a direct model. Written in another era, that constitution has evolved over the centuries through usage, practice and interpretation. But in the genealogy of constitutionalism, what our forebears launched in 1776 has left an indelible imprint.

A.E. Dick Howard is the Warner-Booker Distinguished Professor of International Law at University of Virginia School of Law and is an expert in the fields of constitutional law, comparative constitutionalism and the Supreme Court. Contact him at dhoward@law.virginia.edu.

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