Wednesday, 18 May 2011

Writing Constitutions Built to Last: A Case Study Overview

Libyan demonstrators (largely privileged students) in front of the London Libyan Embassy
hoisting green flags in support of its government January 2011. 

By Lorianne Updike Toler

In the aftermath of the Arab Spring, countries in the Middle East and North Africa will increasingly find themselves faced with the unique opportunity to re-write or reform their constitutions based on the requirements of those who have brought about the changes in the region--the people.

Constitution writing is a heady and complex business.  If done poorly, at worst, great political and cultural upheaval will result. At best, the people who required the initial change will fail to truly accept the constitution as legitimate supreme law by creating practical work-arounds bearing only minimum resemblance to the rule of law by their constitution.  Usually, constitutions will limp along in such a manner until social, economic, or political pressures require a drastic overhaul to the system, and the cycle begins again.

Yet constitutions are not made everyday, making those with experience writing them quite rare.  Too, as the success of a constitution is proven in its long-term, multi-generational acceptance by its people, those who have written successful constitutions have long since passed.  Thus constitution writers are in general a rare breed, and proven successes in the trade are, by definition, dead.

Thus, at a time when constitution-writing expertise is at a premium, we must turn to history to learn constitution writing lessons from those we know to have been successes in the art.

Here, I offer constitution-writing lessons from the creation history of one such long-term success, the American Constitution. (Again, defining success by the general and long-term acceptance of a Constitution by its people.)  I write about the U.S. Constitution because it is "close" to me, and I know it well: I have studied it from within both legal and historical disciplines and co-founded and headed an organization dedicated to democratizing the U.S. Constitution's documentary history for six years.

I exclude other constitutions from my historical constitution writing case study not because there have not been other successes, but simply because I do not know them well, and am not qualified to speak to them.  I invite others familiar with the creation history of other constitutions to email me here and guest post with their own case study.

The broad themes of this case study will include a section with several subparts on process and another, shorter section on principles.  I will not focus here on the substance of the U.S. Constitution.

This is intentional.  Where the U.S. Constitution has been modeled, its substance has been copied.  Although I believe the democratic republican principles found in the US Constitution to be important, I believe the dumbed-down practice of "copy and paste" in constitution writing, in any degree, shape or form, to be in error.  The non-native nature of these constitutions will never govern as well as something created organically, based on principles and institutions endeared to native citizens by tradition and practice. In short, we need constitutions which are "made in [fill in the blank]," not "made in America."

Yet an organic constitution may still look to best practices of other, successful constitutions.  The best practice in America's constitution-writing history is the process which was followed.  America's Constitution has worked for America in large part because of this process, and is America's best export.  This process involved people who were respected.  It involved all states, or regions, who wished to participate (Rhode Island showed up to the Constitutional Convention after most work was done and didn't ratify till long after the Constitution was in force).  The process of creation and later ratification, though initially extra-legal, was generally accepted as legitimate, and continues to be so.

I am convinced that a study and modeling of the American Constitution creation process will produce stronger, longer-lasting constitutions around the world which may bear little resemblance to the American Constitution's substance.  And this could be a very good thing.

In focusing on process and principles of constitution-writing in America, this case study will focus on the following topics (although perhaps given different subtitles) in coming blogs:

1) The Process of Constitution Writing in America
* Interim and transitional constitutions and periods: anarchy under the Articles of Confederation
* Democratic, regional selection of extra-legislative constitution writers: state selection of federal convention delegates
* Political blueprint proposals from various regions or localities: the Virginia, Pinckney, and New Jersey Plans
* Discussion and consensus of political blueprint: the first six weeks of the Constitutional Convention
* Transformation of political blueprint to legal draft: James Wilson and the Committee of Detail
* Discussion and consensus on legal draft: August 6-September 5, 1787 of the Constitutional Convention
* Drafting the constitution's final form: Gouverneur Morris and the Committee of Style
* Signing the constitution: September 17, 787 and the "miracle" of consensus
* The importance of extra-legislative bodies in constitution writing: The Constitutional Convention v. the Continental Congress
* Ratification by specialized democratic bodies in the regions or localities: the state ratification debates
* Initial and long-term amendments and judicial review: The Bill of Rights and Marbury v. Madison

2) Principles of the Constitution Writing Process
* The importance of being brief: the 12-page Constitution
* Severing aspirational goals and legal texts: The Declaration of Independence, the Preamble, and the articles of the Constitution
* Finding a common library and shared texts upon which to draw constitutional principles: the Classics, the Enlightenment, and the Library Company of Philadelphia
* How process differs for a written constitution: the British Constitution v. the American Constitution

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