Using criteria which some American constitutional scholars may consider incorrect – or at least conveniently Scandinavian — a two-man academic study financed by Norway’s foreign ministry has come to the conclusion that the Norwegian constitution is better than the United States Constitution.
They say it is superior because of its “inclusion, flexibility and specificity.”
The study, released to mark the 200th anniversary of the Norwegian constitution, argues that, “although being only the second most enduring constitution behind that of the United States, [it] provides a better model for how to make a constitution endure…”
In fact, it is the British constitution that is the world’s most enduring, not the American, but the authors, Prof Tom Ginsburg of the University of Chicago Law School and Prof James Melton of University College London, fail to mention the British tradition except to say the colonial constitutions derived from it may be considered “a distinct species.”
They also use the anniversary to take the usual left-wing slap at the US Framers, saying the US Constitution “was adopted by a small group of men who ignored their mandate,” comparing this with the Norwegian document which “was adopted with the voice of the people.”
This may be a reference to the fact that a small group of male Lutheran peasants were present at the drafting of the constitution in 1814.
However, what the Norwegian study – despite its praise for “inclusion”– ignores is that the Framers of the US Constitution came from a variety of backgrounds. Some were highly educated and some were self-taught. They had backgrounds in trades, land-owning, professions and military, and were Anglicans, non-conformists, and Deists. Four were born in Ireland, two in Scotland, two in England and one was born in the West Indies to parents who were not married.
The professors’ paper is meant to offer lessons from the Norwegian constitution for “countries in constitutional transition today” and to show why the constitution has endured for two centuries, “a very rare achievement indeed.”
“Out of the more than 900 constitutions written since [1789], only 14 (1.5 per cent) have ever made it to age 100… Research has shown that for all constitutions over the period, the average predicted age at death is 19 years.”
“But the early age of constitution-making was a turbulent one. Of 37 constitutions written in 18 independent states between 1789 and 1814, only two survive. Indeed, by the end of 1814, France had written its seventh constitution; Haiti and the Netherlands had each written five, and Chile was writing its third. So there was nothing about the age in which [the Norwegian constitution] was written that predicted endurance.”
The authors say that the Norwegian constitution is superior to the American particularly because of its flexibility: “Flexibility refers to the ease with which the Constitution can be adjusted over time as circumstances change. A constitution that is too rigid and cannot adjust to the times will force its subjects to replace it.”
Some might say amendments are too easy to pass in Norway: there have been 316 different constitutional amendments carried out in 67 different years after 1814, making it look less like a constitutional settlement and more like Marx and Engel’s permanent revolution.
The US Constitution has been amended just 27 times.
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