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).

To continue reading

Request your trial