Thursday, 26 May 2011

Lessons from History help Middle Eastern Wars and Constitutions


By Lorianne Updike Toler

It seems constitution-writing isn't the only profession that could stand to learn from history.  According to an article in yesterday's Financial Times, the Iraq war was turned around thanks in part to learning from history.

The article attributed the turnaround's beginnings in Tal Afar.  The army had cleansed the city of insurgents on several occasions who then would return to their desert base.  This allowed insurgents to return and win the locals over.

Yet when assigned to Tal Afar, Colonel H.R. McMaster put his PhD in history to work and did things a little differently:

"[McMaster] was well equipped to identify and implement a variation of successful counter-insurgency tactics that had been used, for example, by the British in Malaysia."

Although criticized and passed over for promotion for doing so, Colonel McMaster applied some of these tactics in bucking standard operating procedure and occupying the city.  This put his men at greater risk in the short run, but his decision proved correct within a couple months as locals were eventually won over by the army's commitment to the city.

Soon, his tactics were shared via unofficial channels--word of mouth, pithy emails, bulletin boards, and Powerpoints.  Then it was endorsed by Petraeus and soon become universal.

Learning from history breeds success.  I believe a similar historical approach would help us turn around current constitution writing practices and processes, which I believe are ineffective, undemocratic, and, for being the law to rule all other laws, hardly a process I would say models (let alone exemplifies) the rule of law.

Thursday, 19 May 2011

Writing Constitutions Built to Last: Keeping it Simple

Randolph Sketch of the Constitution for the Committee of Detail, circa July 26, 1787,
credit: Library of Congress manuscript division
By Lorianne Updike Toler

"I didn't have time to write a short letter, so I wrote a long one instead."

Mark Twain implies a truism here which is applicable to Constitutions.

The oldest two operating constitutions in the world are also the shortest - the U.S. (1787) and Norwegian  (1814) constitutions.

If longevity of a constitution is a measure of its success (and I believe it is), does the brevity of a constitution have anything to do with that success?  Again, I believe that it does.

In then-Virginia Governor Edmund Randolph's sketch of the Constitution (probably prepared sitting in camera with the four other Committee of Detail committeemen, tasked with preparing a working draft of the Constitution), he writes:

"In the draught of a fundamental constitution, two things deserve attention:

"1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable; which ought to be accommodated to times and events: and

"2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states."

Shorter is harder.  I learned this (the hard way) by studying at Oxford where, for the first time in my life, I was given a word maximum in addition to a word minimum.  This requires much more.  Each word and phrase had to count, making the entire text much stronger.  Arguments had to be tighter, less art was included, and all superfluidity was excised.  My work was boiled down to its essence and had to bear up under its own weight.

Other short, powerful documents come to mind.  The Gettysburg address in particular, or the Lord's prayer--scriptures in general.  No where else than in the Old Testament (perhaps the Koran?) can so much history be found in so few pages.  Its brevity requires more of the reader.  As Aristotle points out, refraining from making every logical conclusion will strengthen the hearer or reader's participation as they make some of the conclusions themselves.

For a constitution, a supreme law which governs all other laws, all benefits of brevity combine to make a very complicated thing--forming a government--into a simple and strong text.  True, it requires more of those it governs.  They must work to understand its phrases and pass many laws and create institutions which are often only implied.

Constitutional brevity is also a blessing for a litigious society.  Sheets and sheets of constitutional text will increase the opportunity that some clause or other will be violated, multiplying causes of action and clogging the courts.  Too, interpreting the text, simply because there is more of it, would strain the ability of any court system.

If a constitution is overly-broad or overly-detailed, it will, in effect, govern too much, and its people will create work-arounds.  Work-arounds cause two problems.  Either the constitution will be ignored, weakening it as the law which rules all other laws (and thus weakening a country's rule of law generally), or enormous amounts of time and effort will be spent amending it.   Better to keep it simple so that the constitution might stand and allow for change through law and interpretation based on evolving needs rather than expensive amendments.

Yes, better to keep it simple.

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

Tuesday, 17 May 2011

Lessons on Constitution-creating from the Committee of Detail

Picture which ran with the Philadelphia Inquiry article February 9, 2010.

By Lorianne Updike Toler

With the uprisings in the Middle East and North Africa, questions of how to create or amend a constitution have suddenly taken center stage. Who should be selected to create a constitution, and how? Into what kind of body should they be composed? What are the important stages of constitutional creation? Finally, should drafting be done by constitutional delegates as a whole, by committee, or by a single person?

Just over a year ago, an article in the Philadelphia Inquirer prompted a scholarly discussion focusing on a portion of a document I stumbled upon at the Historical Society of Philadelphia (HSP). This document was broken into two pieces, both authored by James Wilson, one containing the first version of the Preamble and two provisions on representation, the second entitled “Continuation of the Scheme” containing a rough, short outline, or topics to be addressed, in a larger, later draft. The first piece was written up-side down inside another draft, the other was filed separately with many other important political documents within James Wilson's papers. The two pieces were published as one in The Records of the Federal Convention of 1787 (1911) by Yale historian Max Farrand, labelled, simply, “Document V.”

Lingering questions remain from that interchange which, once answered, help to cast light on how the U.S. Constitution was created and, therefore, perhaps provide one example of how new constitutions could be drafted in the Middle East and North Africa. These questions include the following:

  1. Who drafted the U.S. Constitution, and how?
  2. What constitutes a draft of the Constitution?
  3. How were the two pieces of Document V separated, and when?

I have found better answers to these questions within the last year, during which time I have carefully reviewed the drafts and Wilson political documents in preparing a re-transcription of the Constitution's drafts at HSP for a special issue of the Pennsylvania Magazine of History and Biography (available for purchase at www.hsp.org in time for July 4). I have also canvassed all other James Wilson collections in Philadelphia archives (made easier through a cross-Atlantic research exchange with Jim Gergat).

I provide here a small discussion of each question in turn in hopes that it will give us a better understanding of the history of the Constitution's drafts and perhaps provide a helpful process guide to those commissioned to amend or write new constitutions in the Middle East and North Africa.

  1. Who drafted the U.S. Constitution, and how?

The U.S. Constitution was the work product of 55 men, each nominated by the state legislatures, who converged on Philadelphia the summer of 1787. In creating a new Constitution rather than simply amending the Articles of Confederation, the delegates of the Federal Convention exceeded the ambit of their authority. The work of this convention may be divided into two stages: a political and legal stage.

Each stage was dominated by a document providing framework for discussion. The Virginia Plan, proposed by Virginia Governor Edmund Randolph on the first substantive day of the Convention, dominated its first half, or the political stage. Although proposing a plan was originally Randolph's idea, the substance of the Virginia Plan is thought primarily to be the genius of Virginian delegate James Madison, who wrote to Randolph and George Washington before the Convention about several ideas later contained in the Plan.

Roughly the second half of the Convention, the legal stage, is dominated by the Committee of Detail's report. After the Great Compromise settle the question of representation on July 16, the political structure of the Constitution was settled into 23 (plus a later two) resolutions. These resolutions included, among other political dimensions, the number and nature of the branches of government, the composition of upper and lower house, how many would preside in the executive office, and how Congress and the Supreme Court would be selected. In part to enable a much-needed 10-day holiday, the fatigued Convention referred these 23 resolutions to a five-member “Committee of Detail.” James Wilson, Edmund Randolph, Oliver Ellsworth, Nathaniel Gorham, and chairman John Rutledge were elected to this Committee.

After working on it for 10 days, the Committee of Detail produced an August 6th report which added legal detail and prose to the political structure of the referred resolutions. The Constitution had evolved from skeletal resolutions to working draft. In the remaining 42 days of the Convention, this draft was combed through by the entire delegation and re-written by Gouverneur Morris in the 11-member “Committee of Style.” Although many small and a few important changes were made (such as adding the electoral college), the Constitution as signed on September 17 looked very similar to the Committee of Detail's August 6 report.

From the documentary evidence at hand, the individual who contributed most to this legal drafting was Pennsylvania delegate James Wilson. Eight of the nine documents which remain from the Committee's deliberations are in Wilson's hand. An early sketch of the Constitution, adding provisional weight to the referred resolutions, was in Edmund Randolph's hand, prepared either alone or as a scribe for Committee of Detail discussions. On it, John Rutledge, the Committee's chair, made notes and check marks in his rough hand, as if reviewed by the Committee together against the initial referred resolutions.

The eight documents in Wilson's hand include a copy of the 23 referred resolutions, a copy of the Pinckney Plan, document fragments and notes from three separate documents, and a final draft, again with edits in Rutledge's scrawl. This final draft, along with Rutledge's edits, is very similar to the final Committee of Detail report which, in turn, is very similar to the final Constitution. From his final draft of the Constitution, it is apparent that Wilson included not just the 23 referred resolutions, but provisions from the Pinckney and Patterson plans. Too, Wilson pulled from the Massachusetts Constitution, the Articles of Confederation, and yes, even the English Constitution via Sir William Blackstone's Commentaries on the Laws of England.

Of the five remaining document fragments in Wilson's hand, there is one which contains a first draft of the Preamble beginning “We, the People.” This is followed by two provisions on representation. The fragment then abruptly ends. It is written upside-down inside what was the third folio, or set of four pages (one large sheet being folded in half to create a four-page signet, or folio), of another draft of the Constitution. This prose, up-side-down fragment was paired by Max Farrand in 1911 with a second fragment written on a much smaller document. Farrand found this smaller sheet in a different location among Wilson's papers. It constitutes a rough and humble outline of the Constitution, divided into groups labelled “Continuation of the Scheme,” “Miscellaneous Resolutions,” and “to be added.” This was the document Farrand labelled “Document V.”

A few clues point towards Wilson likely working alone before taking his final draft to the five-member committee. The first is that we see evidence of the Committee's participation, via Rutledge's hand, when they do meet. Rutledge edited Randolph's sketch. He then edits Wilson's draft. From a review of the manuscripts, it can be seen that Wilson, in turn, edited Rutledge's edits in at least two different places, providing evidence of live collaboration. The footprints of collaborative work were left on the documents. Had other members of the Committee of Detail worked with Wilson on the earlier documents, they similarly would have left written evidence of collaboration. The second clue is that this first document beginning “We the People,” in being abruptly stopped and then continued in outline format on a very different kind of document, evidences Wilson's frame of mind—rushed, disjointed, writing as he thought. Wilson was normally poised, polished, and entirely put together in front of others (ala his Continental Congress, Constitutional Convention, and Pennsylvania Convention speeches). He thought before he spoke, and was eloquent when he did so. It is difficult to imagine Wilson permitting another to witness such messiness of thought revealed in this early document. The third clue is more a simple practicality: it is difficult to write, especially something like a constitution, in a crowd.

If “drafting” is defined as having an influence on its creation, it may be said that all 55 delegates to the Constitutional Convention “drafted” the U.S. Constitution, with some men having more influence than others. Madison may be given credit for the initial political framework, Gouverneur Morris the final stylistic flourishes. Pickney and Patterson should be credited for many powers of Congress and named categories of the Supreme Court's original and appellate jurisdiction. Even John Adams, not at the Philadelphia Convention but the author of the Massachusetts Constitution, should be given credit, especially for first creating the phrase “We the people.” Yet if drafting is defined as the writing of a Constitution wherein ideas are welded together into legally-binding prose, credit should be given to James Wilson, who most probably worked alone in producing the first working, legal draft of the Constitution.

      1. What constitutes a “draft” of the Constitution?

Draft” implies a document in an unfinished state. As opposed to an outline, a draft is usually written in prose. Yet if part is in outline format, part in prose, could such a document be considered a “draft”?

Two Committee of Detail documents are part prose, part outline. These are Randolph's sketch, and the two pieces of “Document V.” If one is a “draft” of the Constitution, so is the other.

The reality is that both Randolph's sketch and Farrand's “Document V” are early versions of the Constitution. The label of “draft” somehow raises the status of these two documents to mystical heights, even though their substantive composition changes not a wink. I do not know if it matters much what the documents are called unless the utility of the label helps us to better understand the creation of the Constitution.

I leave it to others more sophisticated and experienced than I to determine whether Shakespeare's question, “What's in a name?” should continue to go begging for these two early versions of the Constitution.

      1. How were the two pieces of Document V separated, and when?

After the last year of research, this question can be answered with some precision. Based on overwhelming evidence, including a physical inspection of the documents themselves, from letters between HSP president John Wallace and Wilson's granddaughter Emily Hollingsworth in 1876 and 77, from a facsimile taken in 1971 while still bound, and from labels indicating binding and disbinding dates, we now know with certainty that volume one and two of Wilson's papers, containing the Committee of Detail documents and important political papers, were bound by HSP shortly after receipt from Emily Hollingsworth, and disbound, Volume 2 before the Constitution's bicentennial in 1986, Volume 1 sometime before. This means that whatever separation occurred happened in 1876 or 77 or earlier.

We do not know the order of documents when they were gifted by Hollingsworth in 1876 and 77, which means we do not know precisely whether the second piece of Document V was separated from the first by HSP or previous owners (Hollingsworth or Byrd). We do have clues, however, which point to the document being separated after receipt by HSP and before binding.

John Wallace, HSP president, wrote to Hollingsworth on January 23, 1877 thanking her for the documents “relating to your grandfather Wilson, & to your uncle” gifted in June 1876. Although the Committee of Detail documents could have been contained in this initial gift, they were not mentioned. Instead, we find Hollingsworth's card with “best respects to John W. Wallace” written on the back placed before letters between Byrd and several of Wilson's friends clearing Wilson of allegations that he had been involved in a possible coup d'etat against George Washington in a 1822 biography on Nathaneal Greene. These, evidently, with Hollingsworth's card placed on top, were those documents “relating” to her grandfather and uncle. Byrd put much effort into clearing Wilson's good name. Therefore, these documents would have been important to him and, therefore, probably important to the niece over whom he had much influence. Hollingsworth then made these documents her first gift to HSP.

In the January 23 letter, Wallace asks for more documents, specifically any written by James Wilson. Hollingsworth immediately responded positively to Wallace's request, providing him with a second gift the next day. She had the help of Dr. Casper Morris in selecting several Wilson documents, among which she identified a letter to Alexander Hamilton and a copy of George Washington's letter to the first Supreme Court justices. Of the rest (including the Committee of Detail documents and other famous tracts), she writes, “Do not feel obliged to retain any of the Papers you deem inadmissible to the repositories of your Society.” Nowhere is there a mention of the drafts of the Constitution; presumably, Emily did not know of their existence, let alone their import. Similarly, if Morris, Emily's advisor, did have time within the 24 hour period between request and gift to appreciate the full import of the drafts of the Constitution, he did not point it out to Emily.

It is therefore likely that the Committee of Detail documents, along with Wilson's political papers, came in the second gift from Emily. Too, it is most likely that a historian at HSP, who would have been more familiar with the Constitutional Convention than Emily, Morris, or Byrd, would have recognized the value of the Committee of Detail documents and created with those a first volume of Wilson's papers and a second volume of the rest of Emily's two gifts, including the Byrd letters and Wilson's important political papers. In separating out what the historian recognized as the most valuable documents, he (at that time, it almost certainly was a “he”) may have left one smaller document behind in Volume 2. This document was in outline format beginning “Continuation of the Scheme” which I came across in November of 2009.

Because of its value, “Continuation of the Scheme” is now also found among its Committee of Detail fellows in a special HSP vault. Yet it remains, I believe appropriately, catalogued as Document 63, Volume 2, allowing the historical trail of its placement and provenance to be preserved for future constitutional researchers.