Saturday, 16 March 2013

My Month in Libya

discussing the role of comparative constitutional models with civil society leaders
at the Once Voice Conference Janurary 27, 2012 

I was able to spend January 20-February 17 in Tripoli, Libya acting as an independent constitutional legal historian.  During this time, I advised members of the General National Congress, international non-governmental institutions, and local civil society organizations and legal experts, providing them with contemporary and historical comparative constitutional models as they considered  questions regarding constitutional process--most particularly whether and how to elect or select their constituent assembly.

I also continued my constitutional editorial series in the Libya Herald from a first-hand perspective, using them in part to document Libya's constitutional process and to better familiarize myself with the people and issues about which I have been writing since last August.

Here I provide links to the editorials written while in-country and since returning.

March 31, 2013

Supreme Court ruling may provide opportunity for intelligent design of Libya's constitutional process (Part 2)
March 13, 2013
(A version of this editorial also appeared on I-CONnect, the blog of the International Journal of Constitutional Law)

15 February unrest points to importance of Constitutional Process Design (Part 1)
February 14, 2013

Join or Die: Part II
February 28, 2013

Join or Die: Part I
February 2, 2013

HNEC Being Re-organized for Constitution Committee Elections
February 11, 2013

GNC decides on elections, Adrian Pelt would be pleased
February 6, 2013

Making use of the people's voice in Libya's constitution
January 26, 2013

Friday, 18 January 2013

Fair Play and the Public's Role in Constitution-Making

Today I posted a working paper on constitution-making and how public participation can improve the public's felt and philosophical legal obligation to obey the law, important in any post-conflict country such as Libya.

The full article can be accessed here, and an abstract follows:

The increased role of technology in constitution-making and its improved possibilities for popular contributions in the Arab Spring and elsewhere raises interesting questions regarding public constitution-making and the obligation to obey the law. 

The question that will be addressed in this paper is what methods of public participation in constitution-making will create an obligation to obey the new constitutional regime under a “completed” version of John Simmons’ theory of fair play. In answering that question, this paper will first canvas methods of public participation, using examples from three states where public involvement in constitution-making was significant, Iceland, South Africa, and the United States. This paper will then explore Simmons’ theory of fair play and “complete” it, rendering it capable, under certain circumstances, of recognizing fair play obligations to obey the law that are more easily scalable. This paper will also develop a construct implied within Simmons’ theory in identifying when a community constitutes a “cooperative scheme.” 

Finally, this paper will then analyze whether and what kinds of participatory drafting methods and schemes qualify under Simmons’ “completed” theory in creating scalable, prima facie fair play obligations to obey the law.


Recently, the Harvard Journal of Law and Public Policy published an article I co-authored over the last several years with friend and colleague Carl Cecere. It was also featured on SCOTUSblog.

The full print version is being shipped as I write, and the Kindle Version is already available.  The full PDF off-print available here.

Abstract from SSRN:

The ongoing debate over Originalism begs the question of historical legitimacy. All sides have tried to claim that their preferred method of analysis has a stronger historical pedigree by attempting to show that their theory has been adopted by the ultimate constitutional arbiter -- the United States Supreme Court. Yet scholarship on this topic has largely been selective and episodic, focusing narrowly on a few specific examples from a few famous Supreme Court cases. Furthermore, those who have studied anecdotal evidence have largely taken Justices’ claims at face value, without discovering whether the justices' claimed and practiced methodology actually aligned. And research is all-too-often overtly biased, ignoring any evidence that might contradict, or at least complicate, the analysis.

This article seeks to overhaul this debate, by analyzing the historical pedigree for various modes of constitutional interpretation using a systematized, quantitative and qualitative analysis of the Supreme Court’s cases of "constitutional first impression" -- those occasions on which the Court has approached individual parts of the Constitution for the very first time. In hopes of compiling unbiased, randomized, and controllable data to help answer this question, we performed a quantitative, data-driven review of these 96 cases of constitutional first impression, which span the Court’s nearly 220-year history from 1789-2005.

Our results showed that the historical Court did lay claim to relying on the intention of the Framers in their interpretation of the Constitution, placing them today in what would be the Intentionalist camp. Yet our qualitative and quantitative data undermines the Court's claimed intentionalism, albiet for different reasons at different times. In the first century, the Court claimed to -- but did not actually -- rely upon Framing Intent as it is currently understood. Perhaps this was because the Court was using a common law method of interpretation, or because it had adopted a "Whiggish" view of the Constitution's history. 

In the second century, on the other hand, the Court did rely more upon specific primary Framing-era sources to support its supposed Intentionalism. Yet the Court also relied more upon secondary sources that complicate the picture, including many that demonstrate a trend towards Living Constitutionalism.

We therefore believe the conclusion that the Court adopted any form of Originalism before the modern advent of the term, to be wrong. It is not possible to say the Court actually engaged in Originalism until the Warren and Burger Courts. This is ironic, given that it was the Warren and Burger Courts that were most often accused of avoiding Originalist interpretation. But this was the era in which the Court finally started to make good on its commitment to relying on the intent of the Framers by citing to them and their documents with consistency and proportional frequency.

Although our study has focused only on cases of constitutional first impression, because it constituted a randomized, inclusive, and representative sample of the Court's constitutional interpretive methodology over the course of its history, we maintain that our findings may be generalized.

Final Libya Herald Editorials for 2012

A federalist burns a ballot box in Benghazi on 7 July elections. Many in the east, and elsewhere in Libya, once again feel their views are being ignore with regards to the Constitution. (Photo: George Grant)
Libya Primed for Constitutional Success
30 December 2012

The turbulence and controversy surrounding the production and ratification of Egypt and Tunisia’s draft constitution is proof that not all constitution-making processes are made equal, nor should they be left to chance or political circumstances.
Yet if Libya can learn from its own and world history and the mistakes and successes of its neighbors, and galvanize its strengths, it is in a unique position to develop a thoughtful, inclusive constitutional process that will set precedent for the region....

The Libyan Public's Role in Drafting the Constitution: Part III
7 December 2012

Groups of young veterans, frustrated by unfair economic and political treatment after fighting valiantly in the revolution, forcibly closed government functions in rural areas and attempted a seizure of a strategic weapons stash. Later, these same militants were permitted to participate in discussions regarding the constitution’s passage, opposed it, but then accepted defeat and the new constitution.
Although the above vignette may sound like a page from Libya’s future constitutional history, it is, in fact, the story of a militant group in Massachusetts and their role in opposing, yet later accepting, the U.S. Constitution.
Contrast this to Egypt’s current turmoil, wherein disfavoured groups have been excluded (either by choice or procedural favouritism) in drafting Egypt’s constitution, set for a vote on 15 December.  Protests in Tahrir Square have already resulted in many dead and wounded...

The Libyan Public's Role in Drafting the Constitution: Part II
30 November 2012

The current GNC debate over how the constitutional commission will be chosen—by direct election or GNC nomination—has intensified.  Last Saturday, the Libya Herald reported that 82% of the 8,926 people “polled” on former Prime Minister-elect Mustafa Abushagur’s Facebook page favour elections.  Many of those polled were from the Tripoli area, undermining the theory that the call for elections is coming primarily from the east.
Yet the GNC is reluctant to abdicate a privilege denied them by a controversial National Transitional Council constitutional declarationrendered two days before July elections. Many GNC candidates had campaigned based on their constitutional qualifications.
One way to understand the mounting public pressure for elections is that elections are one of only two ways currently planned for the public to contribute to the constitution-making process. Other than elections, Libyans may participate only through a final referendum. Such a small part is little consolation for those who fought and sacrificed lives, limbs, or family members during the 17 February Revolution...

The Libyan Public's Role in Drafting the Constitution: Part I
23 November 2012 (previously posted, but included here for completion's sake)

Over the past week, the GNC has turned to the question of who should draft the new constitution.  The question is whether drafters should be selected as originally planned in the August 2011 Constitutional Declaration or its amendment immediately prior to the 7 July elections.  The debate raises the question of the role the public should play in drafting the constitution.
This editorial will address the case for public participation in Libya’s constitution creation and recommend several methods for Libyans to participate in the pre-drafting stages.  An editorial to immediately follow in this series will focus on methods of participation after a draft text is produced.
At the core of modern democracy is the idea of popular sovereignty.  It is generally thought that governments are more just and legitimate when the law emanates from the people by their election of lawmakers.  Yet democracy extends beyond voting law-creators into power. The people can and should participate in law creation itself when possible and advisable. Especially in the creation of the fundamental law of the country: the constitution...