Friday, 25 May 2012

A Constitution in a Hurry

According to a timetable announced 10 August of last year, the Libyan constitution must be written within three months of the formulation of a national assembly.  With an election date of 19 June approaching in less than a month away, the Libyan constitution will be written within the next four months.

Although there is some doubt as to whether elections will actually happen 19 June, the process as set underscores angst over belabored transitional periods.

Yet as Tom Ginsburg pointed out in an article appearing in the Chicago Tribune last October, such a tight timeframe may not provide adequate time for the Libyan constitutional process to allow tribal groups to come together and work out real differences.

Ginsburg alludes to "studies" of other constitutions demonstrating more time is necessary to allow all factions to be heard and to allocate enough attention to detail.  He cites the Iraqi Constitution as an example of what not to do.

Although it is important to capture constitutional moments post-conflict while there is consensus on many issues (Hungary is another good example of what not to do there), Ginsburg I believe is right.  Yet as I wondered in a comment to the article (reposted as a blog), does this comparativist's viewpoint also comprehend historical studies, or simply those shallow timelines and constitutions afforded by a political scientists' or even, often, a lawyer's viewpoint from the last 25 years?  I ask because it is only by looking into history's longer lens that we can find constitutions which have been successful over the very long run.  They thereby provide some of the most compelling lessons for constitution-writing today.

Take the Massachusetts Constitution.  It required four years of back-and-forth between constituent cities and the central Massachusetts "General Court," or state assembly to produce a product, authored by John Adams, that would last 200+ years (and counting).  For the US Constitution, depending on one's viewpoint, it took either 13 years to write, from the time of the first meeting of a "national" assembly in Philadelphia's Carpenter's Hall in 1774, or four months during the summer of 1787.

An interesting interchange is worth noting in that first "national" meeting.  It is recorded in John Adam's diary from September 6, 1774 and goes something like the following:

Patrick Henry: Government is dissolved…I am not a Virginian; I am an American…I go upon the supposition that government is at an end…We are in a State of Nature.

John Jay: Could I suppose, that We came to frame an American Constitution, instead of indeavoring [sic] to correct the faults in the old one—I can’t yet think that all Government is at an End.  The Measure of arbitrary Power is not full, and I think it must run over, before We undertake to frame a new Constitution.[1]

Although a national charter was not issued for another seven years (in the form of the Articles of Confederation), almost from this point, discussions about constitutions began to ruminate within and among the colonies.  Adams did much within Congress to press the issue of re-writing state constitutions, and Tom Pain brought the issue to a head on January 10, 1776 with the publication of Common Sense, calling for a new constitution.  Constitution-writing among the states began in 1776 five days before the issuance of Paine's fiery pamphlet. 

With these facts before us, we would be hard pressed to say that the US Constitution was written in four months, one of the shorter time frames provided in history for constitution-creation.

Another eighteenth-century constitution that yet inspires patriotism is the Polish Constitution of 1793.  Then there is the Norwegian Constitution of 1814, a document still in force.  What were the creation time-periods for these revered documents?  

Such historical questions and case studies can inform discussion over the Libyan constitution-writing process, and I encourage Prof. Ginsburg and other constitutional comparativists to consider them in their prescriptions for successful democratic transitions in Libya and elsewhere.

[1] John Adam’s Diary (September 6, 1774), quoted in Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era 40 (Chapel Hill: University of North Carolina Press, 1980).

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