Wednesday, 29 June 2011

Lessons from History: Who Should Write Egypt's Constitution?

Ahmed al-Tayyeb, photographed by Mohamed Al Garnousy
Lorianne Updike Toler

Monday's release of a new constitution proposal by top Muslim University Al-Azhar's grand sheikh, Ahmed al-Tayyeb, in addition to last week's proposal by democracy-agitator Mohamed Albaradei call to question who should write Egypt's new constitution, and how.

Regardless of whether a constitution is written before or after elections, there is little clarity on who should draft the country's new founding document.  

As Issandr El Amrani opines in Almasryalyoum: 

Whether the constitution or elections come first, the process by which they are conducted must be irreproachable. In the (unlikely) case a constitution is worked out first, those in favor of this scenario have still not explained who would write it and how they would be selected - appointment or election - and how they would reconcile this with the amendments passed in March.  
Even the current constitutional declaration (which assumes elections will take place first) leaves some doubt as to whether the constituent assembly, which is supposed to be appointed by parliament, will consist of elected officials, other persons, or both. Another unanswered question is whether the completion of its mandate - i.e. the promulgation of a new constitution, presumably by another referendum - will entail the dissolution of parliament and/or the presidency and new general elections.

Who should write a constitution, and how should they be selected?  History provides some insight here.
From the moment the Revolutionary War ended with the Treaty of Paris in 1783, and possibly as early as its drafting in 1776-77, the need for a federal convention to revise the Articles of Confederation was discussed--at least by a minority--in Congress.  Yet congressional impotence and complacency once peace was achieved at the national level led the issue to be taken up by the states in 1785. Virginia, based on John Tyler's bill, was the first to propose a federal convention to address economic issues in the wake of a national depression.  Five states selected commissioners to convene in Annapolis September 11-14, 1786.  Instead of proposing broad reforms because so few states were represented, the 12 commissioners, in the pen of Alexander Hamilton, recommended the convening of a federal convention to amend the Articles in May of 1787.  

Each state considered this proposal independently, and all but Rhode Island selected delegates to attend the Federal  Convention the summer of 1787.  The states selected their delegations through votes by the state legislatures.  One state sent two delegates (New Hampshire), others three (New York and Connecticut), four (Georgia, Massachusetts, South Carolina) and five (Delaware, Maryland, New Jersey, North Carolina), and still others seven (Virginia) and eight (Pennsylvania).  Each delegation, similar to the system under the Articles of Confederation, had one vote, determined by the vote of the majority of the states' delegates present.  Equally divided votes for state delegations would cancel their vote out.

The lesson history provides here is that those chosen to write constitutions should be selected by various constituencies.  Constituencies identified to select delegates may be determined by either geography as in the U.S.'s case, or where stratified, horizontal governmental structures are missing, perhaps from vertical political structures, such as political parties.  The important aspect here is that all identified groups who wish to send delegates may do so, selecting them in the manner they wish, and that all have an equal voice in the strictures of the new plan.  In this way, the new constitution will be shaped by the voice of consensus through representation rather than through a mere majority.   

Tuesday, 28 June 2011

David McCullough and History Education in the United States

Eleesha Tucker

 "Until I heard your talk this morning, I never realized the original 13 colonies were all on the East Coast.” David McCullough recently recalled this student epiphany for Wall Street Journal reporter Brian Bolduc.

This realization came from a student at a prestigious university and was disconcerting to Mr. McCullough, one of the most read and revered historians of our generation. He relayed it to express his deep concern with the state of historical knowledge among America’s youth. If this obviously bright student missed such elementary information, it has to be a deficit in instruction, he concludes. He identifies what he sees as leading culprits, namely categorical instruction instead of chronological, teachers teaching out of subject, and poorly written textbooks.

Mr. McCullough is right in that these are issues preventing schools' success in historical instruction, but if these were remedied, it would still leave the educational landscape of his favored field looking dry.

There has to be a complete paradigm shift in how history is taught. 

Instead of requiring students to memorize dates and events, teachers should equip students to think critically. As students analyze historical evidence, such the text of the Declaration of Independence, the United States Constitution, or Dr. Martin Luther King’s Birmingham Jail letter, they can make inferences to the author’s motivations and imagine the historical context. They can then appreciate the complexity of time and place and understand that the outcomes of past events were not inevitable. When students engage in this kind of historical inquiry, they can better identify cause and effect relationships and identify recurring themes and patterns over time. Historical study provides this perspective that cannot otherwise be determined in the moment.  Drawing lessons from the past is what makes the study of history relevant for the present and useful for  future decision making. Equipped with these critical thinking skills, students increase in their competency and mastery of important historical knowledge. 

If the student aforementioned knew how to ask questions, the right questions, during her history classes, she likely would have connected the dots about the geographical location of the first colonies in America.

This approach, coupled with an engaging lecturer to provide background of historical materials, would revolutionize classrooms across the nation. The benefits would not only be limited to the history classroom, but as students sharpen critical thinking skills, they are better prepared for college and meaningful employment.

Further, the Internet provides this digital generation with unprecedented access to information. More than ever, they can easily research historical facts, but now they need the skills to discern their validity, relevancy and usability. The U.S. Department of Education funded an Internet literacy study of high school students where results were as alarming as Mr. McCullough’s tale. Researchers found that students believed information they found on the Internet, even after they were informed it was fabricated. It seems in their minds, if it is online, it is authoritative. Lead researcher, Donald Leu of the University of Connecticut, said that students “simply have very little in the way of critical evaluation skills. They may tell you they don’t believe everything they read on the Internet, but they do.” As students learn to ask questions, the right questions, they can actively discern reality from fiction.

Lastly, America is an ongoing experiment. Can men and women govern themselves? Our form of government only continues with a citizenry informed of the system’s operations and engaged in its activities. Knowledge of the Founding and decisions made within the Constitution's framework is key to America's vitality. Critical thinking skills are necessary to drive it prudently forward.  

The future of America relies on improving its historical education.

ConSource to host David McCullough in Washington, D.C. at the National Archives

The Constitutional Sources Project, which has created,  is pleased to host David McCullough at the National Archives in Washington, D.C. on September 13, 2011. Mr. McCullough is a two-time winner of the Pulitzer Prize and recipient of the Presidential Medal of Freedom, the United States' highest civilian award. He will teach a diverse group of teachers, middle and high school students, and community leaders about the 1787 Constitutional Convention. His presentation will illuminate the dynamic, collaborative process, which enabled the young American nation to escape the historical dangers of revolution by establishing a lasting Constitution founded on the rule of law. A recording of his presentation will be available through Channel One Connection—a network of 400,000 teachers and 6 million students nationwide—providing an outstanding  resource for teachers to meet the federal requirements to teach the Constitution on September 16.

Interested in accessing his address? Contact Eleesha Tucker, Director of Education and Volunteers, at

Something in Common: American and Arab Self-Determination

Benjamin West's depiction of the Treaty of Paris
Lorianne Updike Toler

Yesterday The Daily News Egypt reported that Egyptian Deputy Prime Minister Yehia Al-Gamal launched a charge against the United States and Israel: they were agitating religious tensions in Egypt which have resulted in violence and deaths in the country since the February 11 revolution, the most recent of which occurred in the Sohag governorate on Saturday.

This is not the first time Egyptian officials have complained of American interference in post-revolution reconstruction activities.  In March of this year, USAID took out half-page newspaper advertisements inviting direct application for development monies, rather than working through official channels per a 1978 agreement.  Just last week, this article in the Wall Street Journal reported Fayza Aboul Naga, the Egyptian minister for planning and international cooperation, as saying, "I am not sure at this stage we still need somebody to tell us what is or is not good for us--or worse, to force it on us."

The WSJ article continues: in calling for Egyptians to refuse American assistance an editorial printed in state-owned Akhbar newspaper complained that America had "dealt with Egypt as a humiliated country."

I do hope my country is not involved in "fomenting religious tensions" in Egypt, but I am afraid that the cause for concern is not without historical precedent: this blog by an American in Egypt and this blog by BBC's Adam Curtis tell an eery tale of a not-so-distant past which saw misguided (but well-intentioned) American interference in securing "free" Syrian elections.  When that did not go well, we then orchestrated a coup which established a "benevolent" dictator setting off a chain events which led to the rise of Bashar al-Assar and the Ba'ath Party.  (The BBC post also links in the sordid history of Saddam Hussein's early work with the CIA through the anti-communist Ba'ath Party.)

But we can also look to even earlier historical precedent in guiding our actions in MENA's emerging democracies: our own.  In the aftermath of our revolution, we were deeply suspicious of foreign powers intervening.  The United States was then physically surrounded by other countries - Britain to the north, France to the west, and Spain (in Florida) to the south, pictured below.  Our emissaries to at least two of these superpowers, Franklin followed by first Adams then Jefferson in France and Adams in Britain, knew that the early Republic's fears of foreign intervention were not unfounded.  Indeed, it was difficult to enforce the 1783 Treaty of Paris: because American states could not be compelled to respect British creditor's rights, the British maintained occupation of forts in the Great Lakes region and did not prevent piracy of American merchant vessels.

We wanted desperately to self-determine our own political future.  The eleven-year interlude between the Revolution and the Constitution was messy and painful.  But eventually, although not all agreed on the goodness of the outcome, we made good on the "Spirit of '76."  It just took time and our own natural political evolution.

Monday, 20 June 2011

Starter Constitutions - southern Sudan 4, USA 13

Lorianne Updike Toler

On July 9, the new republic of South Sudan will secede from the Republic of the Sudan in accordance with  a referendum held in January 2011.  The referendum was stipulated as part of the Comprehensive Peace Agreement between Sudan's two main waring factions, the Muslim-dominated Government of Sudan and the Christian-dominated Sudan People's Liberation Army, in January of 2005.  The new southern Sudanese country, yet to be named, will be governed by a transitional four-year constitution, whereupon, it is thought, a permanent constitution will be enacted.

Transitional constitutions are not a new concept for Sudan.  Since independence in 1956, Sudan has had three transitional and two "permanent" constitutions.

Sudan's checkered constitutional history and present disputes over the appropriate length for the  transitional constitution and whether it serves to further entrench current political power raises the question of how long a starter, or transitional, constitution should last to secure short-term stability while planning for long-term organic political maturity.  Do transitional constitutions undermine the concept of a written constitution altogether, in that, as in Sudan's case, the promise of a someday constitutional permanence is ever-fleeting beyond the horizon?

If the history of the United States can be of any help here, it should be noted that the "transitional," or starter, constitution lasted 11 years before a "permanent" one was drafted.  The Declaration of Independence required hasty work in crafting a government for the newly-independent 13 states, no longer colonies of Mother England.  Such were the circumstances for the drafting of the Articles of Confederation in 1777.

It may have been inevitable that this transitional constitution (although it wasn't considered transitional at the time) would be sub-par, given the exigencies of the circumstances.  It created a collection of sovereign states, impotent to tax (instead creating a convoluted system of "requisitions"), and barely able to maintain an army, much to George Washington's dismay.  The requirement that congressional acts garner unanimous support failed to adequately address debt obligations, issuing a standard currency, interstate and foreign commerce, and diplomatic relations.

Yet the Articles of Confederation allowed a new generation of ideas to percolate as individuals gained more than a decade of experience operating under state constitutions and the Articles.  It allowed minds like James Madison, Alexander Hamilton, Edmund Randolph, and Charles Pinckney (the younger) to mature within the post-colonial system such that they were prepared for intellectual leadership in a new regime yet young enough to agitate for change (at the Constitutional Convention, the ages of this small cadre of new leaders ranged from Madison at 36 to Charles Pinckney at 29).

Eleven years plus another two before implementation is a very long time for a transitional constitution.  The disadvantages to the United States included economic decline and even blood spilt.  Yet the advantages were that this period was long enough to allow natural processes to evolve to produce the new, permanent constitution.  In an age when everything and everyone seems to be in a hurry, perhaps the transitional period can be shorter and still produce effective and organic permanent results.  But then again, perhaps 13 years is not a bad life span for a "starter" constitution, so long as it is truly transitional and not a ploy to further cement power structures while holding off the promise of better, stable, and permanent government.

Friday, 17 June 2011

Can Facebook Write a Constitution?

Involving everyone in constitution-writing seems to be quite in vogue.  Just yesterday I blogged about a new effort in Egypt to write a populist constitution.  From this article, it appears that Iceland, pictured above, is also writing its constitution en-masse using Facebook.

The question then arises - what aspects of a constitution are most conducive to mass-creation, and what should practically be reserved for constitutional lawyers and historical experts?

Here history is not the best guide, as new technology tools are, well, new.  But there were phases in the drafting of the U.S. Constitution which might provide at least some helpful insights.

Once the delegates arrived at the federal convention of 1787, there were three main phases of constitution-drafting.  In the initial phase, which I will call the political stage, three (really four if you count Alexander Hamilton's outrageous monarchical plan) plans were proposed, and two discussed--the Virginia Plan and the New Hampshire Plan, or Patterson Plan (although the Pinckney Plan was proposed and tabled without discussion the same day the Virginia Plan was proposed on May 29, it was used by the Committee of Detail in drafting the Constitution).  Between May 29 and late July 1787, the broad outline of government, or the political structure, was agreed upon.  This was essentially an amended version of the Virginia Plan which, depending on how you count, contained 23, 24, or 26 resolutions.

On July 26, the Convention broke for a five-member Committee of Detail to draft a Constitution, the second phase of the Convention.  This they did in a short 10 days.  Although John Rutledge of South Carolina seems to have been the committee chair, the committee was dominated by James Wilson, in whose hand eight of nine committee documents appear, including, again depending on how you count them, two or three drafts.

The final, legal stage began on August 6 when the Committee of Detail reported their draft.  This was refined over another five weeks, including the few days in September wherein Gouveneur Morris on the Committee of Style retooled the Constitution's phrases with great alacrity.

Once the Constitution was signed on September 17, it was submitted to public discussion for a period of two years as each state considered ratification.  Here, clearly, is an example of mass participation in the creation of a constitution.  These debates did not change the text of the original articles, but they did produce draft bills of rights, from which the ultimate first ten amendments were formed.

Yet what about mass participation in the initial political stages of debate?  Certainly, as can be seen from newspaper articles, blogs, tweets, and street protests, the public is involved in calling for a new constitution.  Can this call evolve successfully into preparing political blue prints for a legal document?

I believe that they can, especially through technology.  Yet I suggest that the various publics involve consider carefully whether tight, simple legal prose can be crafted entirely by a crowd.

Thursday, 16 June 2011

Extra-legal Constitutions in Egypt and the U.S.

Lorianne Updike Toler

On March 19, 77.2% of Egyptians approved constitutional amendments to the 1971 Egypt Constitution,  submitted to the people by the Supreme Council of the Armed Forces (SCAF).  These contained a transitional agenda for a new constitution.  The approved agenda, now under way, dictated that parliamentary elections would be held in September, that the parliament would then appoint a 100-member committee to draft a new constitution, after that the people would thereafter be given the chance to discuss and vote on the constitution after two weeks time.

Several groups are now regretting that vote, and are coming up with their own plans to devise a constitution for Egypt.  I have blogged about one group who has devised technology through which texts from the world's constitutions may be easily inserted into an Egyptian constitution here and about several groups who have  called for a new constitution before parliamentary elections here.  Yesterday, the Hisham Mubarak Law Center announced their own populist plan for involving every-day Egyptians in constitution-writing, involving questionnaires and the hosting of discussion groups regarding political structure and individual rights.  

Based on the people's overwhelming approval of the transitional plan, these efforts sound extra-legal, problematic beginnings for a document destined to be the quintessential legal text for the country.  The coalition groups from yesterday's blog, however, counter this argument by pointing out that SCAF nullified the transitional agenda amendments by nullifying the 1971 constitution upon the later issuance of 63 articles.

Yet the legitimacy of SCAF's unilateral actions in decreeing the 63 articles abolishing the constitution may also be called into question, and so the legal arguments work themselves into neat little circles.

For one whose career has centered around the United States' beginnings, this all sounds very familiar.  Enter James Madison, George Washington, Virginia governor Edmund Randolph, and others of the Virginia delegation to the federal convention of 1787.  This convention was commissioned specifically to amend the Articles of Confederation.  Yet before the convention convened, Randolph, in a letter to Madison, introduced the idea that Virginia, being a large and populous state (and the first state to recommend such a convention), should propose their own plan.  Madison picked up on the idea, and wrote back to Washington and Randolph with seven ideas for such a plan.  On the first real working day of the convention, May 29, 1787,  Randolph proposed what came to be known as the "Virginia Plan," with 23 resolutions outlining a frame of government with three political branches.

Other delegates raised objections, saying that the "acts of Congress recommending the Convention, or the [state] Commissions of the deputies to it" could authorize a discussion of a plan which did more than amend the Articles.  Yet this was quickly and silently passed over, as the delegates had eleven years of first-hand experience with the Articles' impotence.  They knew that, legality or no, the problems of state would not be heal through simple amendment.

The delegates were criticized for their extra-legality once the Constitution emerged from the secret convention.  Yet through thorough public discussion in the states and a long ratification process, what was once illegal assumed the imprimatur of legality.

Perhaps some degree of practicality is required in the messy, hard beginnings of any new government.  This so long as an extra-legal steps are carefully made legal by direct and thorough consultation with the supreme sovereign power, the people.

Tuesday, 14 June 2011

A Historical Lesson on Transitions for Egypt and Tunisia

By Lorianne Updike Toler

Chaim Potok said that beginnings are hard.  I would add that they are messy.

Last week it was announced that Tunisia will delay elections for its constituent assembly, the body which will draft their constitution, from July to October.  Yesterday, I read this article in The Guardian about Egyptian civil society organizations calling for a constitution before elections in September.

The issues at play involve economic instability due to the lack of political stability, keeping interim powers (such as the Supreme Armed Forces) at bay and temporary, and defining what is legal in an era of constitutional change.

Such tough transitional issues were discussed in an April conference in Tunisia on post-revolution transitional periods.  Recent examples from post-dictator transitions in Latin America and their possible relevance were evaluated, but the conference seemed to make no reference to transitional periods from history.  Why is it that our memories are so short?  Can we not think past living memories?  Or is it simply that historians have chosen not to participate in the constitutional dialogue, dominated by lawyers and social scientists of various ilks.

I can't help but be reminded of the United State's forgotten transitional period.  We essentially had eleven years of economic, political, and social chaos under the Articles of Confederation.  The states, fearing conglomerated power (having just staved one off), built a weak confederated government with little power and no resources.

Inflation raged, debts went unpaid, and shipping and trade rights were violated by Britain and others on the high seas.  James Wilson, who later penned drafts of the Constitution and was an early advocate for independence in Pennsylvania, benefited from the war circumstances and was a hated creditor.  He and several co-creditors were forced to barricade themselves into Wilson's Philadelphia home, re-dubbed "Fort Wilson," to fend off hungry and debt-ridden veterans.  Several died in the fracas.  (Sound familiar?)  Yet the debtors' revolt which most shocked the country occurred in  Massachusetts lead by a man called Daniel Shay, who nearly seized the states' munition supplies before he was found out and brutally repulsed by state forces.  

It took several tries and two years before a proper convention of the states was called to "amend the Articles of Confederation," but of course much more than that was done.  What was initially extra-legal, in time, due to careful analysis of what was necessary for the new constitution to be accepted by the people, became legitimated and supreme law.

This historical vignette suggests that perhaps modern democracy founders could learn to be more patient with hard, messy beginnings.   Despite the hardness and the messiness, especially where new beginnings for countries are being chiseled out, it is important to be patient enough to keep the long view--both from history and the future - clearly and squarely in front of us.

Monday, 13 June 2011

Supermajoritarian Rule of Law or Constitutional Bust

The assumed inevitability that the Muslim Brotherhood and parties closely aligned ideologically to it will win parliamentary elections and therefore play a dominant role in selecting the committee to author Egypt's new constitution has prompted many discontented articles such as this.   Emad Gad writes in How to Author a Constitution:

"Herein lies the problem...the power that will win a majority in the next parliamentary elections will play a decisive role in drafting Egypt's new constitution that will determine Egypt's future in the coming years."

Yet when did it become inevitable that parliaments should play such a large role in the creation of a constitution?  There is an inherent flaw in such a procedure which is producing much of the discontent.

To demonstrate the flaw, let's take a look at the history of the U.S. Constitution as an example of a rather long-lived constitution that has been accepted by most of the people it has governed as legitimate.

The Continental Congress did not commission the convening of the Constitutional Convention.  True, the Continental Congress knew of the convention, and did not oppose it.  Yet congressional approval of the convention which produced the Constitution was garnered almost as a procedural afterthought.  Rather, it was the individual state legislatures which selected and commissioned their own delegates to attend a convention to amend the Articles of Ratification.  Yet even these duly-elected bodies did not have say in final passage except to approve, as Congress had, the election of separate ratifying conventions.

The sovereign power of any nation, as American founding father James Wilson so aptly described in his 1791 Lectures on Law Introduction, is in the people at large.  Constitutions should therefore draw from this power.  Yet while political power possessed by parliaments also draws from the people through elections, they are not and should not be the only body capable of producing a written constitution.

Circumventing political bodies is best when creating and ratifying a written constitution because such is a very different sort of law than that normally passed by parliamentary or congressional bodies.  The work products of political bodies are changeable because the bodies themselves are changeable.  This because the rule of law for political bodies and their political work products is majoritarian rule, and majorities change.  Yet using majoritarian rule, or political power, to create a written constitution (versus an unwritten one, such as the British Constitution), wreaks havoc on the stability and continuity such a constitution is designed to create.

In order to demarcate between political and constitutional bodies and recognize an even greater role for the people, the rule of law for constitutional bodies and their work product should be supermajoritarian rule.  This rule should be applied to the selection of the constitutional body, to the creation of its work product, and to the ultimate ratification by the people.

In the example of the United States, the supermajoritarian rule can be found in the selection of delegates from the states, paired together with how the delegates voted in convention.  The state legislatures, or localities, elected their own delegates.  Although parties did not yet exist in the nascent state of the union, sectionalism or regionalism played largely the same role, the South against the North, and the small against the large states.  Yet these "parties" were equalized and a greater-than-majority, or a supermajority, was required in that each state delegation had one vote in convention.

This supermajoritarian procedure, over time, produced near-consensus within the Convention. That consensus served to legitimize the Constitution once proposed to the state ratification conventions (a supermajority of which were required for the Constitution to go into effect) and has contributed to its ongoing perceived legitimacy and acceptance by the American people as previous minorities became majorities.

Similar supermajoritarian procedures will ensure greater success to Egypt and similarly situated countries.  Selecting a constitutional convention through supermajoritarian procedures, and then adopting rules that will ensure supermajoritian processes during the drafting, as well as in the ratification, will ensure that the Egyptian Constitution will be the Egyptian people's constitution for generations to come, not just the Muslim Brotherhood's during the era in which they are in or can prolong their power.

Friday, 10 June 2011

Lucky Constitutions=Fair, Super-majoritarian Processes

Romanian President Traian Basescu introduced a proposal for a new constitution on June 1.  My friend there reported the president as saying, effectively, that "not having the luck of the American Constitution, which was good from the start, we settle to continually improve it."

Yet President Basescu is forgetting two very important things:

1) the first American Constitution, or the Articles of Confederation, was far from good,
and 2) there was nothing "lucky" about the current American Constitution being good enough to last for 200 years.

Much thought was given to how to create the U.S. Constitution.  It involved four different phases, beginning with the local selection of delegates, most of whom were lawyers.  The next phase involved secret, four-month-long deliberations involving at least three different stages: 1) eight weeks to hammer out a political structure, 2) a legal drafting stage wherein five individuals produced a working draft, and 3) a six-week refining stage.  The third phase involved approval by the current Congress for extra-legislative state ratification conventions to be held to consider the new constitution, subsequently followed by state legislative approvals.  The fourth stage were those state ratifications themselves, wherein a super-majority of states were required to adopt the Constitution.

Some leeway should be given for "starter" constitutions, both by its creators and those whom it will govern.  They will, because of the haste required, be highly imperfect. Yet once some measure of stability is reached through an imperfect "starter" constitution, just as much thought should be given to the process of creating a more long-lived constitution as to the texts of that constitution.

Other countries may get "lucky" in their new constitutions if they focus on making their writing process fair, inclusive, and super-majoritarian, as good constitutional content is invariably the result of good constitutional processes.

Tuesday, 7 June 2011

Building a Constitution upon Common Philosophy

It is difficult to write a constitution in a vacuum.

The adopted text should already have meaning, drawn from underlying values the society accepts.  If it pulls from shared philosophy, it will be strengthened in that it coheres but also because those within the society will naturally accept and respect its principles.

When the first working draft of the U.S. Constitution was written by the Constitutional Convention's Committee of Detail mid-way through the Summer of 1787, the drafters pulled from three plans proposed by various members of the Convention, including the Virginia Plan, the Patterson Plan, and the Pinckney Plan.  Yet they also pulled from external documents such as the Articles of Confederation and state constitutions.  "We the people" was directly copied from the 1780 Massachusetts Constitution, authored by John Adams.

Yet the library which informed the 55 delegates to the Convention of 1787 was much broader.  In 1731, Benjamin Franklin, with 50 subscribers, began the Library Company of Philadelphia.  This was an outgrowth of the attempt to pool books within his Junto on the premise that access to information would expand exponentially by pooling resources.  And so the first "public," or subscription library, in North America was founded.

In his autobiography, Franklin claimed that this library was the "mother" of all the North American libraries which began to proliferate in North America after 1731, LCP providing a model in form and in substance--its collection was the biggest, but the Enlightenment titles on its shelves were found, to one extent or another, in new libraries throughout the colonies.

The proliferation of information occasioned by these Enlightenment libraries, Franklin wrote as early as 1759, "have improved the general conversation of the Americans, made the common tradesman and farmers as intelligent as most gentlemen from other countries, and perhaps have contributed in some degree to the stand so generally made throughout the colonies in defense of their privileges."

This common library produced a common philosophy on which to build a society.  It helped the Constitution adhere to itself, and the people adhere to the Constitution.

How can this be replicated in other countries?  The answer, simply, is to find common beliefs, value systems, and libraries.  For the Middle East and North Africa region, this could be the Classical authors which Islam preserved, and the Islamic Philosophers of the sixth century.  Perhaps, if the Enlightenment is viewed as an extension of the Classics, it, too could be considered as providing essential ingredients with which to rebuild.

Whatever library and philosophy is landed upon, it must be pervasive enough to allow the written constitution to stand up under its own weight and be embraced by a people who recognize their own values within its strictures.  

Friday, 3 June 2011

Writing Constitutions Built to Last: Severing Aspirational Goals and Legal Texts

By Lorianne Updike Toler

To begin discussing this subject, one must first define a constitution for a state (meaning sovereign power).  Although definitions vary, constitutions are always law. They are legal texts which govern other legal texts and institutional bodies.  A kind of fundamental, sovereign, and supreme law.

As such, the language in it should be legal.  It will be looked to in future cases and judgments for enforcing its strictures, and thus must have the capacity to bind.

As law, non-binding, aspirational language should be left out.  Not only does this kind of language create textual clutter, but, because it is ultimately unenforceable, it makes a mockery of laudable state goals and aspirations.

Of course, when forming a state, it is often an important practice for aspirational goals and fundamental principles to be put to paper, but they should be contained in something other than the constitution proper, such as a preamble or statement of principles.  For the United States, this "severance" occurred naturally, between the Declaration of Independence and the Constitution.

There was apparently some temptation to include principles and theory on joining individuals together out of a "state of nature" in the Preamble, but the drafters exercised wise restraint.  Consider the following excerpt, pictured above:

"A preamble seems proper.  Not for the purpose of designating the ends of government and human polities--This business, if not fitter for the schools, is at least exonerated display of theory, howsoever proper in the first formation of state governments, seems is unfit here, since we are not working on the right of men not yet gathered into society..."

Statements of non-binding theory and principles may be appropriate in preambles when first forming a  state out of a new society.  Yet those writing the U.S. Constitution determined that the state governments and the then-acting constitution, or Articles of Confederation, already formed men into a society, rendering such unnecessary.

Whatever their reason, not only is the Constitution blessedly short, so is the Preamble.  The Preamble, the closest the U.S. Constitution comes to grandiose statements of principle, is now what young students across the country know by heart (my mother proudly informed me that her thirteen-year-old seventh graders can even diagram it correctly on the sidewalk).  Keeping statements of principle in a preamble short allows them to be digested and adopted by even the youngest in a society, a healthy thing in a country wishing longevity.

Thursday, 2 June 2011

What if the Founders had been Hackers?

I can't think of a more democratic way to write a Constitution...
From Techdirt (see related post by Cloud to Street, which organized the conference, and article by Fast Company): 
Hacking Egypt For Better Democracy

from the not-just-the-outsiders dept

Having already covered how hackers from Anonymous have been taking part from afar in various middle east uprisings, it's probably worth noting that some other folks are doing some cool hacking projects as well, including a Hackathon for Egypt effort, that brought together hackers and activists to see if new technologies could be built that might be useful to implementing a more democratic system in Egypt. For example, some folks put together a platform for crowdsourcing the creation of a Constitution:
The conference's most intriguing result was a platform for crowdsourcing the new Egyptian constitution. The platform, which appears to have drawn inspiration from a similar project in Tunisia, allows users to simultaneously browse constitutional texts from multiple countries, propose articles and ideas online and to collaborate on compiling the ideas into a workable text. Owing to Egypt's special circumstances, the platform also contains extensive provisions for off-computer use--many Egyptians simply don't have regular access to either a computer or the Internet.
Who knows how effective these efforts will be (my guess is that, initially, they won't get much use), but it's still nice to see, and hopefully as we see projects like this grow, they'll become more effective and useful.