Research Handbooks in Comparative Law series
Edited by Tom Ginsburg and Rosalind Dixon
Chapter 7: Constitutional Endurance
Tom Ginsburg Constitutions, by their nature, operate in time, seeking to regulate the future on behalf of the past. By providing a relatively enduring basis for politics, constitutions facilitate the operation of government, while at the same time setting out limits on government action. Constitutions also exist in a world of change, and so must adjust to changing conditions. Much constitutional theory wrestles with these dualisms of past and future, empowerment and constraint, change and stability. This chapter focuses on the issue of constitutional endurance. Most drafters of constitutions act as if their handiwork should last a long time (Kay 2000: 33), and constitutional scholars since Aristotle have generally assumed that endurance is valuable. Indeed, it is safe to say that virtually every normative constitutional theory presumes that constitutions survive over a relatively extended period of time. Without endurance, constitutions cannot provide a stable basis of politics and cannot constitute a people out of diverse elements. The assumption of endurance is thus built into the very idea of a constitution (Raz 1998: 153).1 In the real world, however, it turns out that most written constitutions are relatively shortlived. In a recent contribution, Zachary Elkins, James Melton and I explored constitutional endurance in some depth (Elkins et al. 2009). We found that the predicted lifespan for constitutions for all countries is 19 years; the observed median is even lower.2 For some regions of the world, the life expectancy is quite low indeed: the average constitution will last a mere eight...
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