When Constitutions Took Over the World 

That, as Colley makes clear, was Catherine’s plan. Faced with unceasing challenges to her authority—as a foreigner who had seized the throne and as a woman—she nevertheless intended to pursue wide-scale warfare against the Ottoman Empire and its allies in an effort to extend Russia’s borders. To that end, she insisted on her sovereignty while guaranteeing her subjects liberty and equality. “The equality of citizens consists in their being all subject to the same laws,” she wrote in the Nakaz. She called taxes “the tribute which each citizen pays for the preservation of his own well-being.”

Catherine arranged for a multiethnic legislative body, composed of five hundred and sixty-four elected representatives, to meet in Moscow, in 1767, in order to consider the Nakaz. Women were able to vote for the representatives. Peasants were able to serve; serfs were not. Muslims were allotted fifty-four seats. Although its work consisted in the main of honoring rather than debating or ratifying the Nakaz, it was still an extraordinary gathering.

The Nakaz circulated well beyond Catherine’s realm. By 1770, it had been translated into German, Latin, French, and English; editions in Greek, Italian, Latvian, Romanian, Swiss, and Dutch soon followed. The translator of the English edition called it a “constitution.” Colley hints at its influence. In 1772, Gustaf III, the King of Sweden, and Catherine’s cousin, had drawn up and printed a new constitution of “fixed and sacred fundamental law.” If American scholars interested in the history of constitutionalism have taken very little notice of the Nakaz, it’s not so much because the document failed to shore up Catherine’s regime as because Americans are provincial—instead of looking to Moscow, all eyes turn, worshipfully, to Philadelphia—and because it was created by a woman.

Wars ravaged the Americas, ruining lives, razing settlements, and halting trade. In the Declaration of Independence, Thomas Jefferson blamed George III for having “plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.” Independence movements in the Americas—beginning with the revolution in thirteen of Britain’s North American colonies and that first written constitution, from New Hampshire in 1776, and continuing through Venezuela’s first constitution, in 1811—involved rejecting rulers’ demands for war-supporting taxes and erecting new governments with checks on those powers, with mixed success. Haiti’s 1805 constitution, drafted for Jean-Jacques Dessalines, a former slave, declared the political equality of Africans and their descendants, who, according to the constitution’s preamble, had been “so unjustly and for so long a time considered as outcast children.”

The King of France convened the Estates General in 1789—nearly two centuries after it had last been called—for the purpose of levying new taxes, because all those wars had left France bankrupt. The constitution that the revolutionary National Assembly adopted two years later guaranteed, among other things, the equal assessment of all taxes upon all citizens, the right to vote for every man who paid a minimum sum of taxes, “public instruction for all citizens,” and “liberty to every man to speak, write, print, and publish his opinions.”

Placed in this global context, the constitution drafted in Philadelphia in 1787 looks both less and more original. Colley points out that nine of the first ten Federalist Papers concern the dangers of war and two more concern insurrection. Thirty of the fifty-five delegates had fought in the war for independence. The Connecticut delegate Roger Sherman said that there were four reasons to adopt a new constitution: defense against foreign powers, defense against domestic insurrections, treaties with foreign nations, and the regulation of foreign commerce. One overlooked factor that distinguished the constitution debated in Philadelphia from the Nakaz, Colley suggests, is how quickly, easily, and successfully the American document was circulated. There were no newspapers in Russia, and no provincial presses. By contrast, anyone who wanted a copy of the U.S. Constitution could have one, within a matter of days after the convention had adjourned.

Wars make states make constitutions; states print constitutions; constitutions guarantee freedom of the press. In the nearly six hundred constitutions written between 1776 and about 1850, the right most frequently asserted—more often than freedom of religion, freedom of speech, or freedom of assembly—was freedom of the press. Colley argues, “Print was deemed indispensable if this new technology was to function effectively and do its work, both at home and abroad.”

As more states adopted constitutions, the number of published constitutions and collections of constitutions grew. Edmund Burke wrote, in 1796, that a chief architect of the 1791 French constitution had “whole nests of pigeon-holes full of constitutions readymade, ticketed, sorted, and numbered; suited to every season and every fancy.” A newspaper in Strasbourg even printed a template for anyone wishing to write a new constitution; all you had to do was fill in the blanks. Norway’s 1814 constitution, hastily written in Oslo under threat of an invasion by Sweden, borrowed passages, verbatim, from the printed constitutions of the United States (1787), France (1791, 1793, and 1795), Poland (1791), Batavia (1798), Sweden (1809), and Spain (1812). The new constitution was then printed and made available in post offices, and, as Colley reports, the government encouraged people to paste copies on the walls of their houses. In the eighteen-twenties, keen to stir up interest in constitution-making in India, Ram Mohan Roy and James Silk Buckingham, editors of the Calcutta Journal, published translations of proposed constitutions for Peru, Mexico, and Gran Colombia—each of which allowed for equal citizenship of people of different races—while ignoring the U.S. Constitution and all the new constitutions being drafted by American states entering the Union. In the United States, in those years, Americans read the autobiography of William Grimes, a fugitive slave, who’d written, “If it were not for the stripes on my back which were made while I was a slave, I would in my will, leave my skin as a legacy to the government, desiring that it might be taken off and made into parchment and then bind the Constitution of glorious happy and free America.”

Constitutions grant rights; they can also take rights away. In 1794, Mary Wollstonecraft celebrated the promise of constitutionalism: “A constitution is a standard for the people to rally around. It is the pillar of a government, the bond of all social unity and order. The investigation of its principles make it a fountain of light; from which issue the rays of reason, that gradually bring forward the mental powers of the whole community.” But constitutions, Colley says, have nearly always made things worse for women. Before constitutions were written, women had informal rights in all sorts of places; constitutions explicitly excluded them, not least because a constitution, in Colley’s formulation, is a bargain struck between a state and its men, who made sacrifices to the state as taxpayers and soldiers, which were different from the sacrifices women made in wartime. Then, too, all that constitutional printing and copycatting spread Western notions of women’s very limited sphere around the world. In 1846, a third of the members of Hawaii’s House of Nobles were female chiefs; Hawaii’s 1850 constitution restricted suffrage to men. Before the Meiji constitution of 1889—the first constitution implemented in East Asia, greatly influenced by Germany’s 1871 constitution—prohibited Japanese women from voting, they had, to some degree, participated in politics. As Colley points out, “Once written into law and put into print, female disadvantages became harder to change.”

The U.S. Constitution denied political rights to indigenous and enslaved people. And state constitutions adopted in the nineteenth century declared sovereignty over native lands and barred women, Black people, and Chinese immigrants from voting, making it all but impossible for any of these people to use the usual mechanisms of electoral politics to change their status. Colley says that these constitutions inspired constitutions in places like Australia, where invaders had seized the lands of peoples like the Maori. In 1849, California adopted a constitution that guaranteed the right to vote to “every white male citizen” and asserted sovereignty over boundaries that extended to include “all the islands, harbors, and bays, along adjacent to the Pacific Coast.” The following year, a Scottish settler in Sydney said, “Look for example at what has recently been going on in California,” and declared that the people there had “framed a constitution for themselves, that might serve as a model for any nation upon the face of the earth.”

Yet this cut the other way as well. California’s 1849 constitution, which prohibited slavery, participated in a global movement to end human bondage which also included the constitutions, in the eighteen-forties and eighteen-fifties, of Tunisia, Ecuador, Argentina, Peru, Venezuela, and Hawaii. Sometimes indigenous leaders—especially monarchs, like Chief Pomare of Tahiti and Hawaii’s King Kamehameha II—could stave off colonization by adopting constitutions. And constitutions could challenge white supremacy. At Liberia’s constitutional convention in 1847, one delegate declared, “The people of Liberia do not require the assistance of ‘white people’ to enable them to make a Constitution for the government of themselves.” Wars make states make constitutions: the rule applies equally to the American Civil War. With the Fourteenth and Fifteenth Amendments, Americans rewrote their constitution, adopting revisions to the Constitution that altered its fundamental principles.

The Meiji constitution of 1889 brought constitution-writing to Asia, which was followed by an acceleration of constitution-writing throughout Latin America. In 1906, China began to study constitutions of the West and of Japan in preparation for writing its own. Constitution-making took a turn after the Great War, which claimed some forty million lives. That was a turn to the arrangement not only of government but of society. Postwar constitutions, many of which didn’t last long, have some features in common: an absence of any reference to God; a concern with the social, especially in socialist constitutions. Their authors often consulted collections, like “Select Constitutions of the World,” published by the Irish Free State (alongside its own new constitution) in 1922. After the Second World War, newly independent nations in Asia and Africa, and civil wars all over the world, added to the growing heap of often short-lived constitutions. Many constitutions promise much and deliver little. Colley asks, “Why, in the light of the limited longevity of so many constitutions over the centuries, and the limited effectiveness in many cases of these texts as guarantors of responsible rule and durable rights, have multiple societies and peoples kept on investing time, imagination, thought and hope so insistently in this kind of paper and parchment political and legal device?” Because, she argues, “in a deeply uncertain, shifting, unequal and violent world,” imperfect constitutions “may be the best that we can hope for.”

Or maybe we can hope for more. “No part of a constitution is more important than the procedures we use to change it,” Richard Albert writes in “Constitutional Amendments: Making, Breaking, and Changing Constitutions” (Oxford). Writing a constitution is its own kind of expression. So is amending a constitution, a form of constitutional writing (and printing) that Colley does not consider, even though ninety-six out of every hundred of the world’s codified constitutions contain an amendment provision. Constitutions set the rules; amendment provisions set the rules for changing the rules.

The U.S. was the first nation whose constitution provided for its own revision. Article V, the amendment clause, reads, “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.” Without Article V, the Constitution would very likely have failed ratification. Everyone knew that the Constitution was imperfect; Article V left ajar a constitutional door for making it, and the Union, “more perfect.” Federalists cited the amendment provision when arguing for ratification. As James Wilson, a delegate from Pennsylvania, contended, the fact that the people “may change their constitution and government whenever they please, is not a principle of discord, rancor, or war: it is a principle of melioration, contentment, and peace.” Without an amendment provision, the only way to change the rules is to overthrow the government, by way of insurrection.

The problem, in the United States, is that it is extremely difficult to amend the Constitution. It’s often thought to be structurally impossible these days, but much scholarship suggests that it is, instead, merely culturally impossible, because of the very reflexes of veneration of the Constitution that inspired Linda Colley to undertake the project that became “The Gun, the Ship, and the Pen.” The system of government put in place by the Constitution is broken in all sorts of ways, subject to forms of corruption, political decay, and anti-democracy measures that include gerrymandering, the filibuster, campaign spending, and the cap on the size of the House of Representatives. The law professor Sanford Levinson has written, “To the extent that we continue thoughtlessly to venerate, and therefore not subject to truly critical examination, our Constitution, we are in the position of the battered wife who continues to profess the ‘essential goodness’ of her abusive husband.” Or, as Burke noted, “A state without the means of some changes is without the means of its conservation.”

The U.S. Constitution has been rewritten three times: in 1791, with the ratification of the Bill of Rights, the first ten amendments; after the Civil War, with the ratification of the Reconstruction Amendments; and during the Progressive Era, with the ratification of the Sixteenth, Seventeenth, Eighteenth, and Nineteenth Amendments. It is time for another reinvention.

Other countries regularly amend their constitutions. Americans don’t venerate all constitutions; in fact, they’re quite keen to amend state constitutions. Albert reports, “Historically, American state constitutions have been amended over 7,500 times, amounting on average to 150 amendments per state. This paints an unmistakable contrast with the U.S. Constitution, whose average annual amendment rate is an exceedingly low 0.07, while the average across all American state constitutions is 0.35, higher than the average of 0.21 for national constitutions around the world.”

Rather than being amended, the Constitution has been betrayed, circumvented, violated, and abandoned, by force of practice. Can a U.S. President compel a foreign leader to interfere in an American election? Apparently. Can a U.S. President refuse to accept the results of a free and fair election and incite a mob to attack Congress in order to prevent the certification of the vote? Apparently. The U.S. Constitution, no less than the U.K.’s unwritten constitution, is more than the sum of its words; it’s the accretion of practices and precedents.

Kurt Gödel might have been happy to hear that. Gödel’s Loophole really isn’t anything like Fermat’s Last Theorem, because constitutional scholars are pretty sure of what Gödel had in mind. It’s a constitutional version of the idea that, if a genie wafts out of an oil lamp and offers you three wishes, you should begin by wishing for more wishes. In what amounts to a genuine oversight, Article V, the amendment provision, does not prohibit amending Article V. It’s very hard to ratify a constitutional amendment, but if a President could amass enough power and accrue enough blindly loyal followers he could get an amendment ratified that revised the mechanism of amendment itself. If a revised Article V made it possible for a President to amend the Constitution by fiat (e.g., “The President, whenever he shall deem it necessary, shall make amendments to this Constitution, which shall be valid to all intents and purposes, as part of this Constitution”), he could turn a democracy into a dictatorship without ever having done anything unconstitutional. What Gödel did not realize is that it’s actually a lot easier than that. ♦