The Arab Spring is over a year old now. It’s too early to tell if that movement will bring liberal democracy to countries that badly need it. But if it does succeed, it will be right in line with a decades-long global trend. According to Freedom House, 41 percent of the world’s countries in 1989 were democracies. By 2011, 60 percent were democracies.
There are still a few monarchies here and there, and plenty of dictatorships. Cuba and North Korea are even keeping the last dying embers of communism alight. But more and more, democracy is seen as the way to go.
This is a wonderful development. But not all democracies succeed. Without the proper institutions, democracy can be very temporary, as Russia has found out.
One of the first things any new democracy needs is a constitution. This document’s job is to establish the new government’s structure — how the executive, legislative, and judicial branches are composed, what their powers are (and aren’t!), and a few rules of procedure. The more simply it can do these things, the better.
The U.S. Constitution is a model of simplicity. That’s the secret of its success. You can read the whole thing in under a half hour. It’s only about 8,000 words long, including the amendments. It doesn’t need to outline the specifics of agricultural or trade policy. That’s Congress’s job.
The European Union’s de facto constitution is quite different. It runs well over 200 pages. Where the U.S. Constitution paints with a broad brush, the E.U.’s constitution fills in every last detail. According to a forthcoming study by David Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia, new democracies are increasingly turning to the E.U.’s top-down model and rejecting the U.S. Constitution’s more bottom-up approach.
The thinking goes, “How can something so simple possibly work when the modern world is such a complicated place? The 21st century is very different from the 18th century.”
Good question. The answer is that those extra layers of complexity are precisely why a bottom-up approach is more important than ever. Top-down governance is hard enough even in a simple agrarian economy. It’s literally impossible in a world like ours.
Even here in the U.S., interest groups from all sides of the political spectrum fill up more and more Washington real estate every year. That’s because they know that the more top-down federal rules and regulations there are, the easier they are to subvert or, failing that, to manipulate in their favor.
The lesson for would-be democracies is to keep it simple — especially with constitutions, but also with laws and regulations. Simple, clear, and few.
Intellectual climate change means this lesson is routinely being ignored. The E.U.’s constitution has replaced the U.S. Constitution as new democracies’ preferred constitutional inspiration. Negative rights are out of fashion now. Positive rights are all the rage. Negative rights are the kind that pervade the U.S. Constitution: don’t hit other people, don’t take their stuff, don’t break your contracts. Don’t, don’t, don’t. Positive rights are much less dour. And they are all over most new constitutions. You have the right to health care, or a job with six weeks of vacation, and so on. People think of new positive rights all the time, too. There is a push in some countries to give people the legal right to Internet access. Sounds great. Who could be against that?
I can. Positive rights do sound nice, but in practice they’re profoundly illiberal. That’s because positive rights often contradict each other. If I break a bone and my doctor has a legal right to be on vacation, one of us has to have our positive rights violated. That means someone has to decide — someone with a lot of power. A government that makes those kinds of decisions is very powerful indeed. Positive rights systems all but require large, active, and powerful governments. Rights violations are both frequent and arbitrary.
Negative rights have no such conflicts. That’s a big reason why the U.S. Constitution is able to be so simply constructed. Do as you please, so long as you keep your hands to yourself.
In fact, most of the U.S. Constitution isn’t even about granting this or that power to government. Most of that is contained in Article I, Section 8. The majority of the document is about strictly limiting those powers. When the people are left alone, they largely prosper. Let them build from the bottom up. The view from the top on down is too distant to catch the necessary details.
In the law, as in so many other areas, simplicity is beautiful. As democracy continues to march across the globe, newly forming governments should keep that in mind.