My starting and ending point in these lectures has been the belief that the machinery of civil justice sustains social stability and economic growth by providing public processes for resolving civil disputes, for enforcing legal rights and for protecting private and personal rights. I have argued that the civil courts contribute silently to social and economic well-being and that to a certain extent we have had the luxury of taking that for granted. Unlike citizens in other jurisdictions, while our preference may be to stay well away from the courts, their relative accessibility, their historically demanding procedures and incorrupt judiciary have provided a background sense of comfort. They have enabled citizens to feel that they live in an orderly society where, if the worst should happen, their rights could and would be protected through the system of justice.

I have also argued that we are witnessing the downgrading of that civil justice system. The degradation of the courts and starving of resources are symptoms of their declining significance to government. This development can be traced to the interaction and mutual reinforcement of a number of factors including, but not limited to, the following:

• escalating government expenditure on criminal prosecution, criminal defence and incarceration – all of which are paid for out of a single justice budget that must accommodate the needs of both criminal and civil justice;

• consequent pressure to contain expenditure wherever possible within the justice system;

• contradictory criticisms of the civil justice system that it facilitated too many claims and that it was procedurally elaborate and insufficiently accessible;

• an increasingly organised and professionalised legal profession successfully enforcing rights and creatively enlarging liabilities – and charging for those services; and

• the development of a new profession of mediators competing with the legal profession for its dispute-resolution work.

INTRODUCTION

The dwindling supply of organs for organ transplants is sometimes attributed to the use of motorcycle helmets, of all things. Head injuries to helmetless riders are often fatal, but leave the riders' otherwise healthy organs intact, thus making the riders perfect organ donation candidates. Helmets, which, by standard estimates, reduce motorcycle fatalities by a remarkable 39 percent (Norvell and Cummings 2002), have appeared to reduce the number of organ donors as a consequence. The estimates that we report later suggest that the elements of constitutional design have almost as dramatic an effect on constitutional mortality. It may be that, like its effect on organ donations, decreased mortality leads to similar downstream unintended consequences for constitutions (as our normative discussion in Chapter Two indicates). But, we do not concern ourselves with that matter here. Our goal in this chapter is to describe and report the findings from our analysis regarding the mortality of constitutions over the last 200 years. In particular, our purpose is to test the hypotheses specified in the previous chapter.

Our focus is on hypotheses having to do with the design of constitutions, as opposed to their environment. Because we are interested in understanding the impact of design over and above that of the environment, we are obliged to specify and measure the consequences of an inclusive set of environmental factors. Doing so pays the analytic dividends of controlling for such effects, but also can be enlightening in its own right.

INTRODUCTION

The Commonwealth of Australia emerged as a federation of six states on January 1, 1901, formed under a constitution adopted by the Parliament at Westminster after extensive Australian debate and consultation during the preceding decade. Australia emerged as a new state in the then-international system very much under the umbrella of Britain and, just like the other emerging British colonies of Canada, New Zealand, and South Africa, took some time to find a truly independent voice in international affairs. Indeed, it was not until the First World War and the conduct of significant military campaigns on European battlefields that Australia began to develop a stance approaching that of an independent state in international affairs. The Paris Peace Conference permitted Australia to take its place on the world diplomatic stage and, in the years between the First and the Second World Wars, a more independent Australia began to emerge. Various Empire Conferences gave greater voice to the British Dominions as a constitutional matter, culminating in the 1931 Statute of Westminster that recognized the true independence of the Dominions and their ability to play a role in international affairs, including the adoption of treaties. However, there was an ongoing reluctance on the part of Australia to take the final step onto the international stage and the Statute of Westminster was not adopted during the 1930s.

“All happy families are alike,” began Leo Tolstoy in Anna Karenina (1877), “but every unhappy family is unhappy in its own way.” Certainly, the last three chapters remind us of the multiple sources of unhappiness in constitutions. Perhaps, however, our focus on failure has obscured the qualities of stable constitutions. Is it that elderly constitutions have simply avoided all of the crises and disabilities that afflict the more fleeting systems? Is there something about them that defies epidemiological analysis? A biographical account of these longer lives seems in order. Even among the unhappy cases, we still have large gaps in our knowledge. How exactly do certain crises destabilize constitutions? How, if at all, do the design features whose therapeutic effects we praise actually work in practice? Case-level material can be insightful for a host of reasons. The next two chapters explore constitutional reform (and non-reform) in two groups of case-oriented analyses. As we describe in the following section, we have adopted a case-study design that, in our view, illustrates the concepts and processes under consideration and maximizes analytic leverage on the challenge of causal inference.

A STRUCTURED CASE-STUDY APPROACH

A close inspection of cases provides a number of distinct analytic advantages. Most obviously, such analysis can illuminate the causal process, something that is sometimes lost in large-n statistical analysis that follows a less sequential evaluation of the association of cause and effect.

INTRODUCTION: INTERNATIONAL TREATIES AND GERMAN PRACTICE

After the traumatic experience of German self-isolation from the democratic world in the Nazi era and World War II, the founders of the new (West) German Constitution, the Grundgesetz, regarded integration into the world community as a primary goal, perhaps the primary goal, for the establishment of a democratic and federal Germany. Accordingly, the Grundgesetz became famous for its “friendliness” toward international legal relations.

Under the prevailing interpretation of Article 59 of the Grundgesetz, duly ratified treaties are part of German law and enjoy the same status as federal statutes, similar to the Supremacy Clause of the U.S. Constitution. Under the prevailing canons of interpretation, however, this is only part of the story: German courts are also bound to interpret domestic law, as far as possible, in a way that avoids the breach of international legal obligations. Cases of open and intentional conflict between an international treaty and domestic legislation are extremely rare. Thus, the role of German courts in the domestic implementation of international treaties appears to be considerable but straightforward: their task is to allow Germany to fulfill its international obligations by faithfully interpreting German law in accordance with Germany's international obligations, in particular treaty obligations.

If it was ever so simple, this is no longer true. As a member of the United Nations and the European Union, Germany has become a state party to a great number of international treaties so that potential conflicts become increasingly frequent.

INTRODUCTION

This chapter discusses the application of treaties in the domestic legal order of the Kingdom of the Netherlands. The term treaties is used here, in accordance with the definition that is used officially in the Netherlands, to refer to any agreement, irrespective of its name or form, that binds the Netherlands under international law. I use the term application in a broad sense to cover supplementary legal or material action taken by the Netherlands in its domestic legal order to ensure the full effect of a given provision of a treaty. Application also covers judicial rulings (whether by administrative or judicial bodies) that give effect to a treaty provision in a particular case. The term application thus includes performance, as that term is used in the Vienna Convention on the Law of Treaties.

This chapter demonstrates that the Netherlands is very open to the application of international law in its domestic legal order. However, it also shows that, like most or perhaps all other states, the Netherlands resorts to evasion strategies that may insulate the domestic legal order from the consequences of international legal obligations that are not considered sufficiently transparent or legitimate, that may conflict with existing law, or that may collide with political interests of the Netherlands.

The chapter starts by discussing some aspects of treaty making in the Netherlands that are relevant to the subsequent phase of application of treaties (Section II).

Jeanne Calment was 122 when she died in her lifelong hometown of Arles, France in 1997. No one has ever lived longer, or at least no records can verify anyone having done so. At 117, Calment gave up smoking only after her increasingly poor eyesight prevented her from lighting her own cigarettes. A year later, she took up the habit again, apparently undeterred by any vision problems. Until her death her diet consisted, in part, of chocolate (reportedly two pounds of a week, mostly Swiss) and generous shares of olive oil (eaten directly) and port wine. In any predictive model of human life span, the case of Jeannne Calment lies considerably above the regression line.

The U.S. Constitution is, in our view, something of the Jeanne Calment of higher law. Like Calment, the U.S. Constitution defies expectations, at least according to our model of longevity. The U.S. document embodies many of the elements that we predict should lead to increased mortality rates. Our theory, as described below, focuses on the importance for constitutional longevity of higher than average levels of flexibility, inclusion, and specificity – none of which are in abundance in the Philadelphia creation. There may be good reasons to adopt the Philadelphia model – the constitutional equivalent of cigarettes, chocolate, and wine – but constitutional endurance is not one of them.

A THEORY OF CONSTITUTIONAL RENEGOTIATION

Our theory – call it a theory of renegotiation – involves notions of constitutional formation, adjustment, and endurance.

INTRODUCTION

Any study of the role of domestic courts in the enforcement of treaties in a particular state is built on the assumption that the state in question is an active member of the international community, with courts aware of the state's international treaty obligations. Such an assumption is certainly true of present-day South Africa, but it was not always so. From 1948 to 1994, while the country pursued the policy of apartheid, South Africa was an isolated pariah state with few treaties and courts largely unconcerned about the country's international obligations. Although South Africa was a party to the Charter of the United Nations – which was not incorporated into domestic law – it refused to become a party to many multilateral treaties, particularly in the fields of African organization, human rights, and humanitarian law. Bilateral treaties were entered into, but even here difficulties were encountered. For instance, most states outside of southern Africa declined to enter into extradition agreements with South Africa or terminated existing agreements. Both the all-white executive and all-white legislature were positively hostile to the international community as it sought to persuade, and later compel, South Africa to abandon apartheid. The courts were likewise unsympathetic to arguments premised on customary international law or treaty obligations. For instance, the South African Appellate Division refused to be guided by the human rights clauses in the UN Charter in its interpretation of the reasonableness of racial discrimination.

As I prepare to send this book to the printer, President Obama is evaluating potential nominees to fill Justice Souter's soon-to-be-vacant slot on the United States Supreme Court. The selection of the next Supreme Court Justice could have significant implications for the international legal system and for the United States' participation in that system.

The last two individuals appointed to the Supreme Court – Chief Justice Roberts and Justice Alito – view international law with a mixture of contempt and indifference, as evidenced by the Chief Justice's 2008 opinion in Medellin v. Texas (which Justice Alito joined). They apparently view their job, in part, as one of shielding the domestic legal system from the unwanted intrusion of international law. Their elevation to the nation's highest court exemplifies a broader trend in which the judicial branch in the United States has become a key obstacle to the nation's performance of its international treaty obligations.

This book demonstrates that U.S. judges are out-of-step with their counterparts in other modern democratic nations. In most of the nations surveyed in this volume, domestic courts play a constructive role in promoting compliance with national treaty obligations by providing remedies to private parties who are harmed by a violation of their treaty-based rights. For most of United States history, judges in this nation played a similar role: they routinely enforced treaties on behalf of private parties, as envisioned by the Constitution's founders.

This book is the first from the Comparative Constitutions Project, a long-term research initiative we began several years ago with the goal of understanding the origins, characteristics, and consequences of written constitutions for most independent states. As part of this project, we have since identified and collected the texts of nearly all national constitutions from 1789 onward, and we are engaged in a systematic effort to code their contents along a wide range of dimensions. Readers interested in details of the project can find more information at www.comparativeconstitutionsproject.org. Logically prior to the collection of constitutional texts and a coding of their contents comes an accounting of when, exactly, the various documents came to exist and when they were replaced. This sort of census requires comprehensive historical information on the chronologies of national constitutions, including dates of birth, death, and amendment. In seeking genealogical data about, say, the whereabouts of the Ecuadorian constitution of 1830, we frequently came across veritable “obituaries” that reported the circumstances of death. It was not long before we were deeply engaged in questions of the mortality and endurance of these constitutions ourselves.

This book has its origins at the University of Illinois, where Elkins and Ginsburg were colleagues in the Political Science Department and the Law School, respectively, and where Melton received his doctorate. We are especially grateful to Peter Nardulli, Director of the Cline Center for Democracy at the University of Illinois, for his early and continuing support, friendship, and faith in our project, and to Richard Cline for his vision in endowing the Center and our efforts.

This chapter continues our exploration of the constitutional histories of individual states, this time drawing from a sample of states selected with an inverse set of criteria from the previous chapter. In a variation of a most-different systems design (Przeworski and Teune 1970), we investigate a set of cases with a highly contrasting set of social and political conditions, but a similar set of outcomes. This set of cases includes some of the most intriguing constitutional chronologies from the standpoint of endurance.

We begin with a triad of cases – the Dominican Republic, Haiti, and Thailand – places where constitutions rarely survive more than seven or eight years. In some ways this amounts to a paired comparison (Haiti/Dominican Republic against Thailand), as the first two – both occupants of the Island of Hispaniola – have developed in parallel fashion. A focus on Haiti and the Dominican Republic takes on added significance as these two countries account for roughly 7 percent of the world's historical constitutions. Constitutions from the Island of Hispaniola, it seems, exhibit extremely high rates of infant mortality. We compare this duo to Thailand, where constitutional mortality has also been high. Key themes in the trajectory of the Hispaniola cases are the lack of inclusion and potentially overzealous constraints on executive power, which have tempted presidents to cast the written document aside repeatedly. Thailand is a somewhat anomalous case in which constitutional failure is arguably facilitated by unwritten rules around the country's long-serving monarch.