Dysfunctional? Dissonant? Démodé? America’s Constitutional Woes in Comparative Perspective

Ran Hirschl 

University of Toronto - Faculty of Law
May 10, 2014

Boston University Law Review 94 (2014): 939-960 
Abstract:      

Much has been written in recent years about America’s political dysfunction, and whether it stems from, aided by or linked to systemic problems with the country’s constitutional order. In this article I place America’s constitutional shortcomings in a broader comparative context by considering them in light of four types of constitutional gridlock and dysfunction that are prevalent around the world. First, the “fundamental constitutional disharmony” scenario is characterized by discordant constitutional orders that disagree about the very definition and raison d’être of the polity as such, and fierce debate about sources of law and the form of government that result in an apparently oxymoronic constitutional framework (for example, Egypt, Israel, Pakistan, Malaysia, and Turkey). Second, the “synthetic constitution” scenario occurs where “artificial,” bi- or multi-ethnic polities live under a pragmatic, second-order, problem-solving, unprincipled constitutional mode that perpetually faces a realistic possibility of breakdown (for example, Belgium, Bosnia and Herzegovina, and perhaps also the pan-European constitutional order). Third, the “opportunistic constitutional wars” scenario features frequent political struggles and strategic quarrels between rival self-interested elites that are disguised as principled constitutional disagreements, and may occasionally escalate into all-out constitutional wars (for example, constitutional battles between rival political elites in Romania or the Philippines, and challenges to fiscal federalism and reallocation of resources in oil- or mineral-rich federations such as Bolivia or Nigeria). Finally, the “inadequate constitution” scenario - this occurs where there are dated or otherwise deficient constitutional designs that impede effective government and that may yield derisory political outcomes (for example, Italy has had sixty-two governments over the last sixty-seven years; the population in Canada’s 308 federal electoral ridings varies from 35,000 to over 125,000 so that a vote in certain parts of the country is “worth” 3.5 times more than a vote in other parts). When viewed through this comparative prism, the U.S. constitutional order seems to suffer from the latter, serious yet relatively lighter two problems, but not from the former, more life-threatening two.

Number of Pages in PDF File: 22

Keywords: America, United States, constitution, comparative constitutionalism, constitutional dysfunction

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2435590