There are two opposite mistakes that I think are, to some degree, influencing this debate, and they’re mistakes with as much application to America as to Iraq. The first mistake is to think that a constitution can do much in isolation from a constitutionalist culture–as Derb and Rich have rightly (to my mind) noted. The second is to ignore the possibility that a constitution can influence a culture for the better.
This influence is not solely, or even primarily, through the proclamation of rights. Constitutions do more than proclaim rights: They also create institutions and relations between them. The U.S. Constitution has protected our rights through these structural features (where, incidentally, we really are generally governed by “the dead hand of the past”) more than it has through explicit rights provisions.
Consider gay rights. As Nelson Lund and John McGinnis recently argued, federalism has done more for gay rights than the federal courts’ interpretations of the Constitution have. You could always move to San Francisco or New York if the local laws and customs were oppressive to you. You could say something similar about black migration from the South at a time when the federal government was completely hostile and certainly not protective.
Rights declarations, meanwhile, are important *through* their effects on a political culture. Americans’ gun rights are stronger than they would be if we had no Second Amendment. That’s not because the courts have done anything with the amendment, but because its presence in the Constitution has strengthened the claims of gun rights within the political culture.
I don’t think it would be hard to make a case that the most valuable elements of free speech have been protected more by our political culture than by judicial enforcement of the First Amendment. The courts have not ended any major episode of censorship in our history (e.g., the Alien and Sedition Acts, the Red Scare, etc.) although, depending on how much one values pornography, flag-burning, and other kinds of expression that the courts really have protected, they have made a kind of contribution.
Obviously the distinction I’m making between constitutional statements of policy and structural features in a constitution breaks down to some extent. A constitution can collapse if someone amasses enough power to ignore both kinds of constitutional provisions. But to the extent a constitution succeeds in creating competing power centers, decentralization, etc., it can affect a political culture for the better and so promote liberty.