The Preamble in Constitutional Endurance: Preambular Content and Its Effect on the Lifespan of National Constitutions

• Author: Leah Fiddler
• Position: The University of Chicago
• Pages: 366-422

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2014 e Institute for Migrant Rights Press

rst published online 26 November 2013

366

Note. e author is particularly indebted to Professor Tom Ginsburg for generously

providing advice, resources, and, through his work, even the idea for this project, as well as

patiently answering my many questions. Additional thanks are owed to Professor Gerald

Rosenberg and Nick Smith for their comments and counsel. I am overwhelmingly and

deeply grateful to Kristin Oketani and Jensen Carlsen for their signicant contributions,

instruction, and investment in this endeavor, Lisa Fiddler for acting as my (unpaid and

overworked, but meticulous) research assistant, and Siobhan Brugger, Jonathan Tsang,

Lindsey Patin, and Matthew Amyx for their proofreading and meaningful support.

Finally, I will always be thankful for the outpouring of profound encouragement from

my communities in Paris, Los Angeles, and Chicago, most markedly from my family,

Brittany Karen, Kristin Oketani, and Siobhan Brugger. C’est à eux, et à celui qui inspirait

ma passion pour ce sujet, que je dédie sincèrement cette oeuvre.

THE PREAMBLE IN CONSTITUTIONAL

ENDURANCE

PREAMBULAR CONTENT AND ITS EFFECT ON THE LIFESPAN OF

NATIONAL CONSTITUTIONS

LEAH FIDDLER

The University of Chicago

E-mail: leahfiddler@gmail.com

Why do some constitutions endure longer than others? is is the question the author

attempts to answer in this article by examining the role that preambles play in

constitutions. e author situates preambles as a site of intense political controversy,

given that they are being written and are often cited in political rhetoric. But do they

have any actual eect on how a constitution operates in society or how long it lasts?

To answer this question, the author utilizes a Cox Proportional Hazard to examine

an original data set of preambles drawn from the constitutions housed within the

Comparative Constitutions Project. Numerous variables that may have aected the

endurance of the constitutions as a whole were coded in each of the preambles. In total,

the dataset and statistical model include 405 constitutions. She nds that, consistent

with previous research on constitutions generally, the year in which a preamble was

drafted aects constitutional endurance. Additionally, preambles referencing the

constitution’s drafting process are associated with reduced constitutional lifespan,

while those that reference international legal instruments are likely to last longer.

Keywords: Constitution-Making, Comparative Law, Empirical Legal Studies,

International Law

Leah Fiddler

THE PREAMBLE IN CONSTITUTIONAL ENDURANCE: PREAMBULAR CONTENT AND ITS EFFECT ON THE LIFESPAN OF NATIONAL CONSTITUTIONS

367

“e preamble is eectively the lymph gland of the Constitution,” Greg

Craven at the Australian Constitutional Convention of 19981

“[W]e should independently ask why so many people who engage in the

enterprise of drafting constitutions believe that it is also important to include

preambles,” Sanford Levinson2

I. INTRODUCTION

In the spring and summer of 2003, the Pope personally lobbied3 the

chairman of the convention responsible for drafting the Treaty establishing

the European Community (known as the European Constitution),

insisting that it was reprehensible to avoid mentioning Christianity in the

preamble, and that such silence would erect a secular barrier between the

historical and ongoing role Christianity has played in Europe. Bishops in

Poland, as well as the Polish President, discussed the possibility of a failed

Polish referendum of the Constitution if no reference to Christianity was

added to the preamble.4 Reports of convention happenings identied this

issue as being one of the most divisive at the assemblage.5 Remarkably,

all this heated debate centered on a section of the constitution that was

not to be granted legal weight and sanctity like the rest of the text of the

Constitution.6

Ultimately, the debates of the preamble seemed to be the straw that

1. J O. F, C P: A  C 

P  L 19 (2012).

2. Sanford Levinson, Do Constitutions Have a Point? Reections on Parchment Barriers

and Preambles, in W S C D 156 (Ellen Frankel Paul et

al. eds., 2011).

3. Jonathan Walker, Pope Can’t Save God in a Multi-Race EU, B

P (May 30, 2003), available at http://www.thefreelibrary.com/

Pope+can’t+save+God+in+a+multi-race+EU.-a0102550897.

4. Sabrina P. Ramet, y Will Be Done: the Catholic Church and Politics in P

 , R   E E 139-141 (Timothy A. Byrnes &

Peter J. Katzenstein eds., 2006).

5. Terrence Murray, Europe Debates God’s Place in New Constitution, T C

S M, (Apr. 10, 2003), available at http://www.csmonitor.

com/2003/0410/p07s01-woeu.html.

6. Although, one member of the convention ( Jonathan Faull) claimed it could

potentially have been used to inform interpretation of the Constitution in the

future

The Indonesian Journal of International & Comparative Law Volume I Issue 2 (2014) at. 366–422

Leah Fiddler

368

broke the camel’s back, and in the next (and successful) attempt at drafting

a constitution for Europe at the Treaty of Lisbon, little else was altered

but the preamble, which was made much more generic and blandly

palatable to the member states.7 is illustrates the great signicance at

times bestowed upon the content of constitutional preambles, even non-

justiciable ones.

Taking examples like that of the Constitution for Europe, the quasi-

religious memorization of the legendary preamble of the United States,8

the highly politicized amendment of the Indian preamble in 1976,9 or the

2001 amendment of strictly the preamble in Turkey,10 it becomes clear

that, at the very least, there is a perceived role and importance granted to

the preamble. It is on this assumption that I ground this article: while the

public reception and support of preambles has not been clearly mapped

by a political-sociology study, this article is premised on the belief that

preambles may inspire reactions among the populace that account

for some of the endurance of the constitution, and that the potential

institutional consequences of their contents may dispose constitutions to

“dying” sooner or, alternatively, living longer.

To this end, I conducted research on the textual features of preambles,

building o the impressive and formative work of Elkins, Ginsburg, and

Melton’s e Endurance of National Constitutions,11 to empirically assess

the existence of a link between the cause of death for a constitution and

its preambular DNA, and to form a more conclusive understanding of

the observable functions of constitutional preambles. e results of the

Cox Proportional Hazard model employed indicate that preambles, like

constitutions generally, suer (or benet) greatly from period eects

—that is, the year or era in which they were written. As to the design

features of preambles, a preamble’s references to its own drafting process

are associated with an earlier constitutional death, while references to

7. Liav Orgad, e Preamble in Constitutional Interpretation, 8 I’ J.

C L, 737 (2010).

8. Id. at 717.

9. F, supra note 1. at. 140.

10. Based on constitutional documents in Comparative Constitutions Project (CCP)

repository. See C C P, available at http://www.

comparativeconstitutionsproject.org (last visited May 6, 2013).

11. Z E, T G,  J M, T E  N

C (2009).