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Ginsburg, Tom --- "Constitutional Endurance" [2011] ELECD 367; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 7

Section Title: Constitutional Endurance

Author(s): Ginsburg, Tom

Number of pages: 15

Extract:

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 opera-
tion 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 consti-
tutions 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 short-
lived. 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 consti-
tutions 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: ...