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The U.S. Constitution v. The World

Most nations proactively update their constitutions, adding rights as societies change. The United States, holding the world's oldest active constitution, helped write the modern standard for human rights — then exempted itself from it.

Sections

01

The Living Constitution Debate

The idea of a "living constitution" is one that adapts through judicial interpretation without altering its text. This concept has fueled intense legal debate in the United States for over two centuries. Step back for a global view, and the contrast is striking.

Proponents argue the Founders built in flexibility. Rights like privacy, unmentioned in the original text, emerged through court rulings. Originalists counter that the Constitution has a fixed original meaning, and judges updating it erodes democratic legitimacy.

The real obstacle is simpler: political division makes securing two-thirds of Congress and three-fourths of the states politically impossible — so the question of interpretation fills the vacuum that formal amendment should occupy.

Most countries never developed this debate. They just update their constitutions.

02

Everywhere Else, Constitutions Actually Change

The Comparative Constitutions Project has tracked every national constitution worldwide, identifying 116 different rights across history. Today's average constitution includes 48 of them, versus a historical average of 34. The U.S. Constitution contains only about 21 of the 60 most common — well below the global norm.

48 Average rights in
today's constitutions
21 Rights recognized
in the U.S. Constitution
88 Rights listed in
Bolivia's constitution

The trend is consistent. Median constitutional rights rose from around 20 in 1900 to over 40 today — a pattern scholars call "rights creep." The United States has not kept pace.

"I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012."

Justice Ruth Bader Ginsburg

UCLA's WORLD Policy Analysis Center finds the United States behind 165 nations on women's constitutional protections and absent from 142 with constitutional health rights.

03

What Modern Constitutions Include

Today's constitutions go far beyond the civil and political rights the American founders addressed. The following figures are drawn from the Comparative Constitutions Project dataset, covering 224 countries since 1789.

70% Free Education Requires the state to provide education free of charge. In 1820, it was 36%.
43% Right to Health Care Explicit constitutional right to health care. At least 140 countries recognize it in some form.
39% Fair Wages Right to just remuneration or fair payment for work, including minimum wage protections.
25% Right to Housing Constitutional right to adequate housing or shelter.
80% Environmental Protection Duty to protect or conserve the environment. In 1812, it was 9%.

Countries like South Africa, Norway, Peru, Bulgaria, Hungary, and Romania guarantee rights to employment, health care, and education directly in their constitutional texts. South Africa's 1996 constitution — drafted after apartheid — is widely considered one of the most progressive in the world. Among constitutions adopted between 1990 and 1999, 82% explicitly banned discrimination based on socioeconomic status, compared with just 34% of constitutions adopted before the 1960s.

04

1948 Changed Everything

The Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948, proclaimed for the first time that individuals — not just states — are bearers of inalienable rights, and that how governments treat their people is a matter of legitimate international concern.

The UDHR's 30 articles cover a sweeping range of rights. Beyond freedoms familiar to Americans, it includes:

Article 22 The right to social security.
Article 23 The right to work, free choice of employment, just and favorable conditions, and protection against unemployment.
Article 25 The right to an adequate standard of living, including food, clothing, housing, medical care, and necessary social services.
Article 26 The right to education.

Research by Zachary Elkins, Tom Ginsburg, and Beth Simmons shows that a right's inclusion in the UDHR increased the probability of its appearance in subsequent national constitutions by about 50%. The UDHR didn't just inspire — it served as a blueprint for constitution writing after 1948. Newly independent nations emerging from colonialism turned to it when drafting their foundational documents.

The International Covenant on Economic, Social and Cultural Rights, adopted in 1966, further entrenched the expectation that constitutions protect not just political freedoms but economic dignity. It has been ratified by 171 countries. The United States signed but never ratified it.

05

Not Practicing What We Preach

The United States didn't just participate in crafting the UDHR — it led the effort. In 1945, President Harry Truman appointed Eleanor Roosevelt to the U.S. delegation to the United Nations, where she was elected chair of the U.N. Commission on Human Rights responsible for drafting the Declaration. She oversaw 85 drafting sessions, often running late into the night.

Roosevelt navigated Cold War tensions, forged compromises between Western and Soviet blocs, and crucially persuaded the U.S. State Department that human rights must encompass not only civil and political freedoms but also economic, social, and cultural ones — the very rights that now define modern constitutions worldwide. American moral authority and diplomatic effort gave the UDHR its momentum.

And yet the United States never fully embraced these principles at home.

Legal scholar Cass Sunstein identifies four reasons the U.S. Constitution lacks social and economic guarantees. First, chronology: it was drafted in the 18th century, before such rights entered constitutional discourse. Second, procedure: the amendment process is so rigorous that major additions prove politically elusive. Third, culture: America never developed a robust social-democratic movement to embed them. Fourth, judicial contingency: in the 1960s and 1970s the Supreme Court came close to recognizing these rights through the 14th Amendment, before Nixon-appointed justices reversed course.

"The earth belongs in usufruct to the living... every constitution then, and every law, naturally expires at the end of 19 years."

Thomas Jefferson, letter to James Madison, 1789

The most telling episode may be President Franklin D. Roosevelt's 1944 State of the Union proposal for a Second Bill of Rights — constitutional guarantees of jobs, decent homes, medical care, education, and protection from economic insecurity. These ideas previewed the UDHR's socioeconomic provisions. FDR died in 1945 before they could gain traction.

06

The Treaty Record

The gap between what the United States promotes abroad and what it has ratified at home is not abstract.

International Covenant on Economic, Social and Cultural Rights
Protects rights to work, education, health, housing, and an adequate standard of living.
Signed. Never ratified.
171 countries have.
Convention on the Rights of the Child
Establishes fundamental protections for children worldwide.
Not ratified.
196 of 197 countries have.
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
Defines discrimination against women and sets an agenda for action.
Signed. Never ratified.
189 countries have.

The United States helped write the rules. It urged other nations to adopt them. It has not bound itself to them.

America designed the modern human rights framework. Then exempted itself from it.

Every heated debate over Americans' right to health care, higher education, or a living wage reflects a structural gap — not a values gap. These rights were settled as constitutional basics by most of the world decades ago. The only path to closing that gap is structural. Laws can be repealed. Amendments cannot.

References
  1. Elkins, Zachary, Tom Ginsburg, and James Melton. The Endurance of National Constitutions. Cambridge: Cambridge University Press, 2009.
  2. Elkins, Zachary, and Tom Ginsburg. “Imagining a World without the Universal Declaration of Human Rights.” World Politics 74, no. 3 (2022): 327–66. https://doi.org/10.1017/S0043887122000065.
  3. UCLA World. “How Constitutions Around the World Address the Rights to Equality, Education, and Health | UCLA World,” n.d. https://www.worldpolicycenter.org/how-constitutions-around-the-world-address-the-rights-to-equality-education-and-health.
  4. “WHO calls for action to uphold right to health amidst inaction, injustice and crises.” WHO, April 5, 2024. https://www.who.int/news/item/05-04-2024-who-calls-for-action-to-uphold-right-to-health-amidst-inaction--injustice-and-crises.
  5. Human Rights Watch. “(Re)Claiming the Right to Social Security,” December 21, 2023. https://www.hrw.org/news/2023/12/19/reclaiming-right-social-security.
  6. Sunstein, Cass R., "Why Does the American Constitution Lack Social and Economic Guarantees," 56 Syracuse Law Review 1 (2005). 
  7. Scott, Anne Firor, Ellen F. Fitzpatrick, Ariel W. Simmons, and Robert E. Lester. A Guide to the Microfilm Edition of Research Collections in Women’s Studies. The Papers of Eleanor Roosevelt, 1945-1962, 2002.
  8. Elkins, Zachary, Tom Ginsburg, and James Melton. Constitute: The World’s Constitutions to Read, Search, and Compare. Online at constituteproject.org.
  9. Randy, and Randy. “The Declining Influence of the United States Constitution.” NYU Law Review, September 25, 2018. https://nyulawreview.org/issues/volume-87-number-3/the-declining-influence-of-the-united-states-constitution/.
  10. UCLA World. “Constitutions Data Download | UCLA World,” n.d. https://www.worldpolicycenter.org/maps-data/data-download/constitutions-data-download.