Monday, 31 October 2011

Pragmatic v. Ideological Constitutional Processes

The sun rising over Hamburg.   
Lorianne Updike Toler

An illuminating juxtaposition presented itself to me this weekend.

I attended a transatlantic conference on constitutionalism this weekend in Hamburg, Germany where I met a 20-year expert on comparative constitutional law at a top-10 law school in the United States.  He communicated to me that many methods of creating a constitution - by the legislature, by elected constitutional assembly, by non-elected parties getting together to write a draft and then submit to a popular vote - were equally desirable.  Often, he said, it was best to have the legislature create the constitution, as they would need to live with its consequences.

At the same time, I have been reading Gordon Wood's Creation of the American Republic.  There, Wood explains how, in the period between 1776-1787, individual states perfected a theory of constitutional process, most working its way through at least more than one constitution until the people were satisfied with the outcome and their level of involvement.  The evolved theory of constitutional process that resulted and was implemented led to the creation of the two oldest constitutions in the world - the Massachusetts Constitution, and the US Constitution.

The process, involving a separate constitutional convention, authorship by widely-respected individuals, and ratification, were based on the premise that the people did not authorize the legislator to re-create its own rules.  Such a supra-power required a power superior than that which could create normal law.  In addition, the legislators had a conflict of interest as members of the government:

Such a vested interest "may induce them to form the government, with a particular reference to themselves, [allowing them to] monopolize themselves a variety of offices." (Wood, 341)

I believe there is a connection between the legitimacy that such a process confers on the constitution, and its long-term success.  Witness the 200+ years in operation of both the Massachusetts and US Constitutions.  I might not be easy and practical, but insofar as constitutions are concerns, ideology behind the process of creation matter, and matter enormously.  In today's world, popular attitudes will ultimately trump and topple ill-conceived constitutions.

Witness Hungary's recent constitutional overhaul.  The previous constitution required 2/3 majority vote in Parliament to adopt a new constitution.  This year's parliament had the necessary 2/3 majority to do so, and it did.  It was practically and effectively accomplished, by the book.  All fine and good.

Yet in this instance, playing by the prescribed rules may not be enough in the long run.  I have talked to  at least a few students in surrounding states who question the legitimacy of the new constitution.  Not because of its substance, but because the process by which it was created did little to involve its people. The current parliament was not elected with the mandate to change the constitution, nor was constitutional change something that was discussed in the election.  Too, the constitution was not submitted for ratification.  It was essentially adopted by one party who happened to by the very popular flavor in the last election.

These young, ambitious student dissenters may not be able to do anything about their rancor now.  But they will likely form part of tomorrow's government.  What will they do then with a practically-conceived but exclusively-crafted constitution?  How will that effect the politics and economy of Hungary?

It may be less practical in the short run, yet I submit that ideologically-sound constitutional processes will always be better for business and for its people.

Wednesday, 26 October 2011

Democracy Will Out

Lorianne Updike Toler

Now that Libya has declared itself liberated and finally buried Qaddafi, it, along with Egypt and Tunisia, are looking to build new institutions of government based on democratic principles.

Libya presents anew the "previous question" of democratic government: whether a people can sustain self-government.  I have heard, unfortunately more than once over the last months, that the Muslims of the Arab Spring are not ready for democracy.

This has been repeated to me by those of various political strains in different locations around the world - Philadelphia, London, and this weekend at a conference on law and democracy in central europe.

Yet when did the West become so smug?  Have we forgotten that America was once snubbed by the English, now two great champions of "the people," as too uncivilized to sustain self-rule?  Have we forgotten the example in living-memory history wherein post-communist peoples created constitutions and elected themselves free people?

I was inspired this weekend at the law and democracy conference by the example of Georgia (the country).  There, the thirty-something member of the constitutional court of Georgia shared that corruption was rampant.  Public trust in the judiciary and police force was bordering in the teens and twenties.  To curb corruption, the age at which someone could qualify to be a judge was lowered to 30, and the entire police force was fired and replaced. Old judges have been replaced with freshly-scrubbed young ones as the longer training cycle has permitted, and public confidence and trust in the police force has risen to 80%, judges to mid-60%.  Astonishing.  Yet here was a people who were also once said to be "unready" for democracy.

Self rule is never easy, and beginnings are always messy.  Yet I believe that the majority of the people, unless they, too, have become corrupted, will not choose something that will harm them.  There is something inside the soul which wants to be free.  To borrow a phrase from Shakespeare, democracy will out. 

Wednesday, 12 October 2011

Rediscovering James Wilson

Lorianne Updike Toler

I came to the University of Pennsylvania Law School to study its first professor, James Wilson, based on a little re-discovery I made of an early version/draft of the Constitution he authored almost two hundred years ago.

Although I recently co-published all of Wilson's drafts of the Constitution (let me know if you'd like a copy), my research is headed in a bit of a different direction: I'll be collating much of the documentary history of state constitution-creation which gave raise to the formation of the federal constitution and analyzing it from a procedural perspective in a comparative study (a process in which James Wilson plays a central part).

That said, it is fun to find reminders of this remarkable man around the law school - a plaque at the school's main entrance, his portrait in the main hall, and, not pictured (coming soon), his breakaway desk, perhaps at which he wrote his illusive drafts...

Thursday, 6 October 2011

Slowing Down the Arab Spring

In reading Harold J. Berman's celebrated Law and Revolution, I came across this pearl:

"A radical transformation of a legal system is...a paradoxical thing, since one of the fundamental purposes of law is to provide stability and continuity.  Moreover, law--in all societies--derives its authority from something outside itself, and if a legal system undergoes rapid change, then questions are inevitably raised concerning the legitimacy of the sources of its authority.  In law, large-scale sudden change--revolutionary change--is, indeed, 'unnatural.'  When it happens, something must be done to prevent it from happening again.  The new law must be firmly established; it must be protected against the danger of another discontinuity.  Further changes must be confined to incremental changes"  

The challenge for Tunisia, Egypt, and now, Libya, is to stabilize their laws and constitutional foundation such that the rapid change of the Arab Spring slows down and sets a new precedent for stability in the region and individual countries.

How does one slow down a revolution (of course, only in those countries for which the Arab Spring has actually produced results - heaven help Syria, Yemen, and others seeking for greater freedoms)?  How does Egypt make sure this constitutional revolution, unlike that of 100+ years ago, sticks?  How do the Egyptians ensure that their revolution happens only once, following the American pattern rather than the French pattern?