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E L E C T R O N I C J O U R N A L S O F T H E U. S.

D E P A R T M E N T O F S T A T E

i s s u e s o f
Democracy

C O N S T I TUT I ONA L I S M
AND
E M E RG I N G
DEMOCRACIES

M A R C H 2 0 0 4
V O L U M E 9 N U M B E R 1
Introduction

Constitutionalism and Emerging


Democracies

From the Editor s

T H E S E N S E O F anticipation is palpable cally elected sovereign government, their coun-


among delegates to the constitutional assembly. try rejoined the family of nations ruled by law.
Dignitaries, average citizens, academics, reli- The interim constitutionunprecedented for
gious scholars and community leadersmany Iraqguarantees basic rights to all Iraqis
elected by their respective constituencies to rep- including womenand enshrines freedoms
resent themgathered for what is an historic long treasured by the worlds democracies.
occasion. Consensus is reached on the structure We have attempted in this journal to pre-
of government and a constitution guaranteeing, sent the reader with several perspectives on con-
among other things, rights for all, freedom of stitutionalism, key components of a successful
religion, and an independent judiciary. Pen constitution, and the experiences of various
is put to paper, signatures are collected, and nations throughout history in crafting constitu-
a simple document becomes a beacon of hope tions uniquely their own. Among our contribut-
in a land once tyrannized. The setting is not ing authors are some of Americas leading
Philadelphia 1787 or Warsaw 1791; this is authorities on constitutional law. We are partic-
Afghanistan 2003 as Pashtuns, Tajiks, Hazaras, ularly honored to include remarks by a sitting
Uzbeks, and others representing the breadth of justice of the United States Supreme Court.
Afghanistans diverse society, convene a Loya Because the U.S. Constitution has served as a
Jirga to agree on a new constitution. source of inspiration for drafters of constitutions
But even this watershed in constitutional- around the globe, we begin with an essay that
ism is not the most recent. When members of explains why it has become what contributing
the Iraqi Governing Council signed the Transi- author Albert Blaustein calls Americas most
tional Administrative Law, establishing a legal important export.
framework for Iraqs transition to a democrati-

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Associate Supreme Court Justice Sandra
Day OConnor, in remarks to the Arab Judicial
Forum, elaborates on the importance of an inde-
pendent judiciary to the strength of democratic
rule and efforts in the Arab world to ensure
such judicial independence. Constitutional
scholars A.E. Dick Howard and Herman
Schwartz bring their own experiences as advis-
ers to drafters of constitutions the world over to
their essays on the basic building blocks of con-
stitutions and the influential role the U.S. Con-
stitution continues to play. Scholar Vivien Hart
relates the experience of South Africa and how
its constitution building process became a uni-
fying force in a country once sharply divided
along racial lines. We end with a conversation
with noted legal scholar Noah Feldman as he
relates his personal experiences with newly
established constitutional documents in Iraq
and Afghanistan, including an assessment of
the compatibility of Islam and constitutional
democracy.
As democracy spreads throughout the world,
future drafters will look to existing constitutions
for guidance. They must keep in mind that there
is no simple model and no one framework is
necessarily entirely applicable to all countries.
We invite readers to continue their exploration
of this dynamic subject by visiting the links
included in the resources section. We hope that
this journal will provoke discussion among our
readers on the nature of democracy and the role
of constitutions within it.

Issues of Democracy, IIP Electronic Journals, Vol. 1, No. 1, March 2004

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C o n t e n t s

issues of Democracy
March 2004

6
THE U.S. CONSTITUTION:
A M E R I C A S M O S T I M P O R TA N T E X P O R T
In this essay Albert Blaustein, who taught at Rutgers School of Law and authored a six-volume work
on the U.S. Constitution, outlines how the document has been used as a model by other governments in
crafting their own constitutions. Written to commemorate the bicentennial of the U.S. Constitution, the
article remains a classic assessment of the attraction of Americas fundamental political document to
nations struggling to achieve democracy from the eighteenth into the twenty-first centuries.

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BUILDING BLOCKS FOR A CONSTITUTION
Herman Schwartz, a professor at American Universitys Washington College of Law,
discusses the basic decisions that must be made about the form of government desired before
the drafting of a constitution can begin. Essential characteristics such as the system of
government, the nature of judicial review, and protection of minority rights need to
be addressed and decided before pen can be set to paper.

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TOWA R D C O N S T I T U T I O N A L D E M O C R AC Y
AROUND THE WORLD:
AN AMERICAN PERSPECTIVE
Professor of law at the University of Virginia and frequent consultant on constitutional revision
A. E. Dick Howard discusses what countries in Central and Eastern Europe and throughout the world
took from the American model and how each countrys unique cultural and political
circumstances led them down different constitutional paths.

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T H E I M P O R TA N C E OF JUDICIAL INDEPENDENCE
Associate Supreme Court Justice OConnor made this presentation at the recent Arab Judicial Forum
in Bahrain. In it she argues that the independence of the judiciary is a fundamental element in
successful constitutional government and makes specific reference to constitutions of countries
in the region that guarantee such independence. OConnor also discusses ways in which
the U.S. judicial system protects judges from politics.

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D E M O C R AT I C C O N S T I T U T I O N M A K I N G :
THE SOUTH AFRICAN EXPERIENCE
In a recent report from the U.S. Institute of Peace Democratic Constitution Making
Professor Vivian Hart analyzes recent practices of constitution making around the world, especially
in divided societies where the constitutional process was a way of reconciling difference,
negotiating conflict, and redressing grievances. She also discusses the South African
constitutional process as a model.

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CONSTITUTIONALISM IN THE MUSLIM WORLD:
A C O N V E R S AT I O N WITH N OA H F E L D M A N
Noah Feldman, who teaches law at New York University, participated in the creation of the
new constitution in Afghanistan and has consulted in the development of Iraqs
Transitional Administrative Law that was recently signed. He discusses some of the unique issues
that faced drafters in these war-torn countries and the struggle over how much influence
Shariah codes should have in these emerging democracies.

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BIBLIOGRAPHY
Further reading on constitutionalism.

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INTERNET SITES
Internet sites on constitutionalism.

A N E L E C T R O N I C J O U R N A L O F T H E U.S.D E PA R T M E N T O F S TAT E

I S S U E S O F D E M O C R A C Y

C O N S T I T U T I O N A L I S M A N D E M E R G I N G D E M O C R A C I E S

M A R C H 2 0 0 4
h t t p : / / u s i n f o . s t a t e . g o v / j o u r n a l s / j o u r n a l s . h t m

E D I TO R Leslie High PUBLISHER Judith Siegel E D I TO R I A L B OA R D George Clack


M A N AG I N G E D I TO R Mark Betka E X E C U T I V E E D I TO R Guy E. Olson Kathleen R. Davis
REFERENCE SPECIALISTS Anita Green P R O D U C T I O N M A N AG E R Christian Larson Francis B. Ward
Lorna Dodt A S S T. P R O D . M A N AG E R Sylvia Scott
A R T D I R E C TO R Diane Woolverton
G R A P H I C S A S S I S TA N T Sylvia Scott

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Constitutionalism and Emerging Democracies

The U.S. Constitution


Americas Most Important Export

by Alber t P. Blaustein

T H E U.S. C O N S T I T U T I O N is Americas
Americas Founding Fathers drafted the worlds most important export. From its very inception,
first written constitution more than 200 years its influence has been felt throughout the world.
ago. The legacy of that historical document is And even where that influence has not resulted
evident today in the constitutions of most of the in democracy and freedom, it has still brought
worlds democracies, and it continues to influ- hopein President Abraham Lincolns words
ence drafters of the very newest constitutions. of government of, by, and for the people.
The story of that influence is a tale worth
Celebrating this important document, a distin-
telling. Americas Founding Fathers 1 fashioned
guished constitutional scholar discusses how the
a constitution that was a unique breakthrough
Philadelphia model helped to change the world
in the continuing struggle for human freedom.
and how it continues to be a model for democra-
They believed in the principle of constitutional
tic governance. government, which they hoped might have rele-
vance beyond America. Thomas Jefferson looked
upon the Constitution as a standing monument
and a permanent example for other peoples. It
is impossible, he wrote, not to [sense] that we
are acting for all mankind. President John
Adams was convinced that American political
ideas would profoundly affect other countries.
Alexander Hamilton thought that it had been
reserved to the American people to decide the
question whether societies themselves are
really capable of establishing good government.

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Jan Matejkos The Constitution of May 3rd, 1791 shows
the new Polish constitution held aloft by King Stanislaw
James Madison, president and contributor to August Poniatowski. He is carried triumphantly from the
Royal Castle, seen in the background and where it hangs
the Federalist Papers, believed that posterity
today, to Warsaws St. Johns Cathedral.
would be indebted to the Founding Fathers for
their political achievement and for the sound
governing principles provided for in the U.S. But it was not only Frenchmen who praised
Constitution. the Founding Fathers. The Polish Constitution,
Thus it was the Founding Fathers who became adopted May 3, 1791, preceded the French docu-
the teachers of why and (more importantly) how ment by four months. Any perusal of the Polish
constitutions should be written. Their principal charterstarting with the preamble itself
students were the French. The Marquis de confirms the study of the American model. In
Lafayette, for example, admired Jefferson, as addition, there are records of American con-
did other critics of the old regime in France. stitutional consultations with German, Austrian,
(There exists a draft of the 1789 French Dec- Belgian, Dutch, Spanish, and Portuguese schol-
laration of the Rights of Man and Citizengen- ars and with leaders from the New World. One
erally considered one of the most important of the leaders of the Brazilian revolutionary
human rights document ever draftedwith Jef- movement, Mason Jose Joaquim da Maia, met
fersons handwritten editing in the margins.) with Jefferson in France for such discussions.
French scholars likewise clustered about Gou-
verneur Morris, a principal architect of the U.S. The Spread of Constitutionalism
Constitution [who is credited with penning the
Since that seventeenth day of September 1787,
preamble We the People of the United States,
a one-document constitution has been deemed
in order to form a more perfect Union...] when
an essential characteristic of nationhood. Today,
he visited Paris.
of the 192 independent nations of the world, all
but a very few have such a constitution or are

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committed to having one. Among the exceptions for foreign affairs official authorization for a
are the United Kingdom, New Zealand, and Paris printing of Constitutions des Treize Etats
Israeldemocratic nations with sophisticated de lAmerique. In 1786, a year before the draft-
constitutional jurisprudence but no one specific ing of the American Constitution, French
document that can be called a constitution. philosopher and mathematician, the Marquis de
Committed to the principle of parliamentary Condorcet, outlining his ideas for a French dec-
supremacy, the constitutions of these nations laration of rights, authored a study of the role of
consist of numerous legislative enactments American political ideas entitled De linfluence
specifically designated as basic laws (in the de la Revolution dAmerique sur lopinion et la
case of Israel) or legal scholarship that has legislation de lEurope.
been classified as fundamental or organic.
The American Precedent
American Constitutionalism
Before 1787 It was the Philadelphia Constitution, however,
that set the irreversible precedent for constitu-
Historians generally agree that the first consti- tionalism. At the time of its drafting and even
tution to include language creating a governing, before its ratification, a course on the U.S. Con-
political entity was the Fundamental Orders of stitution was being taught by lawyer Jacques
Connecticut in 1639; it is known that the first Vincent Delacroix at the Lycee de Paris, an
constitution that used the word constitution institution of free higher education. The num-
was Virginias Constitution of 1776. ber of foreigners who attended that course is
Immediately after the Declaration of Inde- unknown. However, it is known that the course
pendence in 1776, the thirteen former British attracted a large following and that it was the
colonies began writing a new series of constitu- subject of substantial articles in Le Moniteur,
tions. Fifteen were published between 1776 the most important newspaper in France. Paris
and 1787, six of the most significant in 1776. was then the intellectual capital of Europe and
These included the constitutions of Pennsyl- the center for studies on revolutions and their
vania and Virginia. Both of these documents aftermath.
created interest abroad and were being translated Certainly, the Belgians were among the
into other languagesnotably Frenchwithin first to feel the impact of new constitutional
weeks of their being made public. Other copies, ideas, as can be seen by looking at the Belgian
whether in English, French, or in another lan- revolution of 1789. The Belgian Democratic
guage, were soon in the hands of scholars from Party, which existed for a short time in 1790,
Poland, Germany, Austria, Switzerland, and looked to American state constitutions for
Spain, as well as from Mexico, Venezuela, examples of what it advocated.
Argentina, and Brazil. The first influences of the American Con-
Upon the signing of the alliance between stitution on national constitutions was felt in
France and the United States in 1778, these the 1791 documents of Poland and France. The
state constitutional texts, by then known as the Polish Constitution was short-lived. It disap-
Code de la Nature, were published in Paris. In peared in a series of partitions that, in 1795,
1783, the American minister in Paris, Benjamin ended the existence of Poland as a separate
Franklin, obtained from the French minister nation until after World War I.

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This is not the case with the 1791 French The U.S. precedent became an inspiration
Constitution. While it lasted only briefly and as well as a model for the European constitu-
was replaced by the French constitutions of tions that followed the revolutions of 1848. In
1793 and 1795, its greatest resource was felt in this year, the first important constitutional
Spain. The American-inspired French charter developments occurred in Austria and Italy, and
was used as the basis of the Cadiz Constitution new constitutions were enacted in France and
of 1812, Spains first constitution. This, in turn, Switzerland. It was also the year that the never-
formed the basis of the first Portuguese Consti- to-be implemented Frankfurt Constitution was
tution in 1822. These Iberian constitutions drawn up. It was used in a modified from for
were known to Simon Bolivar and to other later German constitutions, such as the one
heroes of Latin American liberation and were drafted for imperial Germany and the one that
also critical for the preparation of the consti- established the Weimar Republic in 1919.
tutions of the new nations of the Americas. American colonialism led to further consti-
As early as 1784, Francisco de Miranda tutional development at the turn of the century.
was developing a project for the liberty and Cuba, Panama, and the Philippines were all to
independence of the entire Spanish American adopt American-style national charters. Such
continent and sought the aid of leading North colonialism is also apparent in the pre-World
American constitutionalists in his quest. Failing War I constitution of Haiti, reputedly written by
to get sufficient support, he went to London and then Assistant Secretary of the Navy Franklin D.
pursued a business career for more than two Roosevelt.
decades. He returned to Venezuela in 1810 to By far the most important constitution of
work with Bolivar to establish a Latin American the World War I period was that of Mexico,
government based on the U.S. Constitution. which was adopted in 1917. Still in existence,
History tells us that Venezuela, Argentina, and although frequently amended, this ranks as one
Chile formed their first constitutions in 1811, of the most historic constitutions ever drafted.
one year before Spains Cadiz Constitution. All This was the first constitution to recognize eco-
were based, in part, on the Philadelphia model. nomic and cultural as well as political rights.
The American Constitution also affected Its inner structure and much of its language is
the development of Latin American federalism. taken directly from the Philadelphia Constitu-
Venezuela and Argentina are federal states as tion. Also between the world wars many Latin
are Mexico and Brazil, both of whose national American nations rewrote their constitutions,
charters were established in 1824. and the Philadelphia model is apparent in all of
The American Constitution also found them. The constitutions of Chile and Uruguay
admirers in Africa. Liberia, which had been provide excellent examples.
settled by freed slaves from the United States, With the end of World War II, American
adopted a constitution in 1847, which was writ influence was dominant in the preparation of
ten in major part by a professor from the Har- the new basic charters of West Germany and
vard Law School. Japan. Less publicized, but equally significant,
was the adherence to the Philadelphia model
in Indias 1949 Constitution. Copies of the U.S.
Supreme Court reports are available to the

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justices of the Supreme Court of India, where Under standing the
they are not only read but frequently cited. American Influence
The study of American constitutionalism
All this leads to the question: Why has the
after World War II led to a near-universal
American Constitution been so influential? To
interest in the role of the U.S. Supreme Court in
begin with, it was the first constitution and thus
determining the constitutionality of legislation.
the obvious precedent for all subsequent con-
This function was likewise performed by the
stitution-makers. Most constitution-writers are
Supreme Court of India and the Supreme Court
lawyers, and lawyers inevitably seek precedents.
of Australia as well as by other common-law
From the beginning, commentaries on the
countries. Constitutional review could not be
American Constitution were publishedand
exercised by the Latin American nations
studied and discussed by fellow lawyers
because their judicial structures were based on
throughout the world.
the civil law system. However, these nations
Americas Founding Fathers believed in a
wanted to include the process of judicial
constitutionally limited republic and they suc-
review. The solution was the establishment of
ceeded in constructing a regime that balanced
constitutional courts. The first of these were in
order and liberty. This has led a large number
Germany and Italy, and they have since prolif-
of foreigners to our shores to study American-
erated throughout the world. The Constitutional
style government and to return home advocating
Court of Poland [established in the 1980s] was
selected features of it. In many instances, this
the first in the communist world. Brazil, which
has been made possible by scholarships provid-
drafted a new constitution in 1988, reexamined
ed by the American foundations and universi-
its judicial system to determine whether it
ties and by grants from the U.S. government. To
should place judicial review within the
this category must be added the foreigners who
province of its supreme court or create a consti-
came here for other purposes and were likewise
tutional court.
inspired by American constitutionalism. This
The effect of the Philadelphia Constitution
started with Frances Lafayette and Polands
continues to be seen. Nigeria, the most populous
Tadeusz Kosciuszko, both officers in George
country of Africa, has discarded the parliamen-
Washingtons army who later became leaders in
tary system, which it inherited from Britain and
the struggles for freedom in their own countries.
which was incorporated into its Independence
Conversely, the influence of the U.S. Con-
Constitution. In 1999, it adopted a new consti-
stitution has been carried abroad by Americans
tution embodying presidential government and
who have been called upon to serve as advisers
ending years of military rule. American influ-
in the writing of other constitutions. Americans
ence was likewise evident in the constitutions
have helped draft the Liberian, Mexican, Ger-
adopted by Canada and Honduras in 1982, El
man, Japanese, and Zimbabwean constitutions.
Salvador in 1983, Liberia in 1984, Guatemala
American scholars also provided ideas for con-
in 1985, and the Philippines in 1987.
stitutional reform in the Philippines [and more
recently in Central and Eastern Europe and the
Middle East].
The principal reason for the influence of
the Philadelphia Constitution abroad, however,

10
can be summed up in one wordsuccess.
America is the richest, freest, and most power-
ful country in the world, with the longest-
lived constitution. The second oldest is Bel-
giums, from 1831, followed by Norways, from
1841. There are only four other countries that
have constitutions written before the twentieth
century: Argentina in 1853, Luxembourg in 1868,
Switzerland in 1878, and Columbia in 1886.
Seven other constitutions were created before
World War II.
The U.S. Constitution has withstood the
test of time. U.S. constitutional research is a
major project in at least a dozen countries, as its
value is being analyzed with a view to the writ-
ing of new constitutions.

Albert P. Blaustein was professor of law at Rutgers


(The State University of New Jersey) School of Law.
He authored numerous scholarly works on the subject
of constitutionalism including a sixvolume work
on the U.S. Constitution entitled Constitution of
Dependencies and Special Sovereignties. Blaustein
helped draft more than 40 constitutions worldwide
and visited many of those countries. In 1991, he
helped to write the constitution for the Russian
Republic. Professor Blaustein died in 1994.

1. Those individuals whose contributions to critical doc-


uments (Federalist Papers, Declaration of Indepen-
dence, the Articles of Confederation, and the U.S. Con-
stitution) resulted in the creation of a United States of
America based on ideals of liberty and freedom.
The opinions expressed in this article are those of the author
and do not necessarily reflect the views or policies of the U.S.
government.
Photograph, page 7: Maciej Bronarski photographer, courtesy
of The Royal Castle in Warsaw.

Issues of Democracy, IIP Electronic Journals, Vol. 9, No. 1, March 2004

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Constitutionalism and Emerging Democracies

Building Blocks for a Constitution

by Herman Schwar tz

THOSE W H O W R I T E constitutions
Noted author and constitutional scholar Herman for emerging democracies face daunting chal-
Schwartz examines the challenges facing drafters lenges. First, they must write a document that
of the worlds newest constitutions. Schwartz enables the society to decide difficult and divi-
elaborates on key building blocks to be consid- sive questions peacefully, often under grave
ered by drafters of constitutions such as govern- circumstances. At the same time they must
ment structure, human rights protection, and establish effective protections for human rights,
procedures for amendment. including the right of the minority to disagree.
Secondly, divisions and conflicts usually
begin quickly and resolving these can create
long-term problems. When the transformation
is negotiated, as in much of the former Soviet
bloc, the losers will try to hold on to as much
power as they can. If the change involves the
complete ouster of a regime, as in Iraq, then the
winners will vie for power. The compromises
resolving these disputes are often incorporated
into the constitution, which can be troublesome
in the long run. For example, compromises over
slavery in the U.S. Constitution made it possible
to get that Constitution adopted but were ulti-
mately not good for the nation.

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Moreover, a constitution is written at a document should reflect the deepest values of
specific point in time, usually when the society the society and the basic ground rules for the
faces very difficult economic, social, and other democratic process. These should be stable. On
problems. There is a temptation and often a the other hand, since some of the provisions
necessity to deal with these problems quickly. produced by the immediate pressures, conflicts,
But provisions designed to quickly deal with and expectations of the initial period may be ill-
immediate problems may not be appropriate suited for the long term, making changes diffi-
solutions for the long term. cult may prevent future governments from deal-
Overhanging all documents written at a ing adequately with unforeseen problems.
specific time and place is the fact that it is For this reason, it would be wise to review
impossible to foretell the futureand the the structural aspects of the constitution after a
future will always be different from what is given period of time. One way is to provide for
anticipated. Thus, drafters of constitutions must an expert commission at ten or twenty-year
give future governments the flexibility to meet intervals to determine whether structural
unpredictable and unforeseeable challenges. changes need to be made. This could be partic-
One lesson from near-universal experience ularly useful after the first ten years, when at
is that human rights must be effectively pro- least some of the problems created by the con-
tected immediately. When an authoritarian stitution will become apparent.
regime is ousted, the society inevitably experi- This review should not, however, include a
ences a sense of liberation and a yearning for weakening of the human rights provisions even
freedom. But that sense of excitement does not though there may be a temptation to do this. As
last very long. Experience in new democracies the initial euphoria wears off and expected
and old demonstrates that if human rights are quick improvements to living standards are not
not adequately protected initially, it will be dif- felt, there is less concern for human rights.
ficult to do so later. Leaders and even peoples may be tempted to
see human rights as a luxury, secondary to mat-
Preliminar y Considerations ters such as economic stability, even though
experience shows that human rights rarely
First, should the constitution be written by an
impede an effective response to these chal-
ordinary legislative body or by a special con-
lenges.
stituent assembly? If the decision is to go with
A related preliminary question is whether
the former, incumbent legislators can write a
the constitution should be short or long. Many
constitution that keeps themselves in office. A
in the United States believe that because our
special constituent assembly representing as
short Constitution has lasted for more than 200
many elements in society as possible is prefer-
years, short constitutions are the best, even for
able, even though it is more cumbersome and
nascent democracies. I do not share that view.
expensive.
U.S. constitutional law cannot be found within
Another preliminary decision is about
the texts of the thirty-four original and amend-
changing or amending the constitution after it is
ing articles. It can only be found in the almost
adopted. It should not be easy to do this. The
540 volumes of decisions that a powerful and

13
solidly established U.S. Supreme Court has subject to confirmation by the legislature, but
issued over some 215 years. These decisions ultimately subject to direction and control by
have established our most fundamental consti- the president.
tutional principles and rights, few of which can The legislature is independently elected,
be discerned from the bare text of the U.S. Con- also for a set period of years. Neither the presi-
stitution. Democracies that are new, however, dent nor the legislature is normally subject to
do not have the luxury of either the 215 years to dismissal by the other. This produces a system
develop these rights and few, if any, start out of dual legitimacy and clearly separated powers.
with a powerful judiciary. They can and should The presidential system offers stability
build on American and other experience, and and, in the hands of a strong president, can pro-
write these fundamental rights and principles vide vigorous leadership. The stability can,
into their constitutions without having to wait however, turn into rigidity, for an unpopular or
for the courts. ineffective president cannot be easily removed
This does not of course mean that the con- until his or her term expires. Moreover, legis-
stitution should be very detailed. Constitutions lative stalemate and gridlock may result if
that include too much can block the necessary the legislature is controlled by a different polit-
flexibility. Deciding what should go into a con- ical party. If this division continues, the gov-
stitution, what should be left to the legislature, ernment may not be able to function efficiently
and what should not be regulated at all, is one for many years.
of the most basic and difficult initial questions. In a parliamentary system, the parliament
is the only source of electoral legitimacy. There
The Building Blocks is no separation of powers between the legisla-
ture and the executivethe judiciary of course
So-called horizontal and vertical structural
is independent but it stands outside the legisla-
issues are the most difficult issues for they
tive spherefor the executive branch, usually
involve the distribution of power. They are
called the government and headed by a prime
almost always resolved amid political contro-
minister, is chosen by the party that has a
versy, with short-term goals, particularly how to
majority in the parliament or from a coalition
get and keep power, often dominant.
reflecting a majority of the legislators. The head
An initial issue is whether to have a presi-
of state is a president with little power, and is
dential or a parliamentary system. Although
usually chosen by the parliament. The prime
each has many varieties, they fall into two
minister and the government are accountable to
groups. The presidential system, of which the
the parliament and can be dismissed by it.
American version is the best known, usually
Elections can be called at any time, providing
involves the election of a chief executive by the
flexibility. Since there is no formal separation of
people either directly or, as in the United States
powers between legislative and executive, there
indirectly, for a set period of years. In the Amer-
is little chance of an impasse since a govern-
ican model, the president, who is both head of
ment or prime minister who loses the confi-
state and head of the government, sets both
dence of the parliament can be dismissed by it.
domestic and foreign policy and picks ministers
to implement these policies. Ministers are often

14
The parliamentary system can, however, units as they can efficiently manage since a
produce a frequent turnover of governments and central administration is often unfamiliar with
great instability. It can also produce sudden local conditions and needs. Also, participation
drastic changes of policy when an opposition in local government offers people a chance to
gains a majority, which can create a different participate directly in making many of the key
kind of instability. decisions that affect their lives, and can be an
There is no obvious answer to which sys- important part of democratic self-governance.
tem is better. The choice will often depend on
history, the needs of the moment, and other fac- The Judiciar y
tors. All the countries of the former Soviet bloc
History has established the need for an inde-
outside the Soviet Union, as well as the Baltic
pendent judiciary that can keep the other
nations, adopted parliamentary regimes, in
branches from transgressing constitutional lim-
large part because they wanted to become a part
its, and particularly where basic human rights
of Western Europe which is almost entirely
are concerned. This can be either the regular
parliamentary. All the former non-Baltic com-
judicial system, as in the United States, or a
ponents of the Soviet Union however, have
special tribunal, a constitutional court, limited
adopted presidential systems.
to deciding constitutional questions and a few
It must also be decided whether to have a
other matters, as in Germany. In the former
unicameral (single house) or a bicameral (upper
case, the ultimate authority is a supreme court
and lower house) legislature. If the state is to be
composed of regular court judges who are
a federal state with relatively autonomous com-
appointed for life and normally handle appeals
ponents, such as the United States or Germany,
from lower courts; they decide constitutional
it may be desirable to have a second (usually
questions only if necessary to settle the dispute
upper house such as the U.S. Senate) legislative
at issue. Most constitutional court members,
chamber that represents the interests of the
however, are law professors and others not
components. The second chamber is sometimes
drawn from the regular court system and usual-
limited to certain decisions such as those
ly serve one, and occasionally more, 812 year
affecting taxes and judicial or other appoint-
terms. They decide constitutional questions if
ments, or to matters directly affecting the com-
requested by high government officials, courts
ponents themselves.
and in many countries, by private citizens who
Whether to have a second chamber raises
claim that their rights have been violated. Most
an additional question: how centralized is the
emerging democracies have chosen to create
state to be? How much authority and autonomy
constitutional courts, partly because judicial
should be allocated to lower levels of govern-
review by ordinary judges is not in their tradi-
ment like regions or national units? How much
tion, and partly because they mistrust the exist-
independent authority should be allocated to
ing judiciary.
cities, towns, and villages? The range of possi-
Whatever system is chosen, the constitu-
bilities is wide, from highly autonomous units to
tion must explicitly establish the courts author-
total central control. There is good reason to
ity to annul laws and other norms and acts
allow as much autonomy to regional and local
inconsistent with the constitution. If there is a

15
special constitutional court, it must not be bur- Protection of Human Rights
dened with extraneous responsibilities. Much of
It is now established that the constitution must
its work will be controversial, for one of its
protect human rights and that the courts, par-
major responsibilities, particularly in the early
ticularly the special constitutional tribunals,
years, is to establish the constitutional bound-
should play a major role in providing that pro-
aries among governing authorities. Also, it will
tection. The U.S. Supreme Court pioneered this
sometimes have to rule against the government
development, but tribunals throughout the
in human rights cases. In all these instances, it
world now recognize this responsibility. Where
will often be severely criticized by the losers.
international human rights agreements ratified
The constitution should not multiply the occa-
by their governments are at issue, judges have
sions for such attacks by giving the constitu-
considered themselves bound to observe these
tional tribunals non-judicial or non-constitu-
treaties. They have often looked to the courts of
tional tasks, for at least in their early years they
other nations for guidance on common prob-
will lack the prestige and public support on
lems. The result has been the creation of an
which they depend for effectiveness.
international constitutional law of human
Bolstering an independent judiciary is
rights.
another reason why a constitution should not be
Every new constitution now contains a
too brief. The more specific a constitution, the
statement of basic human rights. This is not
easier it will be for the courts to point to rele-
enough. The constitution must create institu-
vant language in the document to support their
tions to make those rights enforceable. The con-
more controversial decisions, and the less they
stitution must specifically provide that persons
will be seen as having acted according to the
who claim that their rights have been violated
judges own subjective beliefs.
have ready access to a court, and that if a vio-
Because the courts decisions will often be
lation has occurred, the victim can obtain an
politically sensitive, their independence and
adequate remedy for that violation. Many
impartiality must be constitutionally guaran-
nations have found that an ombudsman (often
teed. The judiciary must be an independent
an investigator or mediator of complaints) is
branch of government and not be under the
useful in this regard. A special office in the
Ministry of Justice. The judiciary should con-
state prosecutors office can also be helpful.
trol its financial and administrative affairs, free
Of vital importance to democracy is that
from executive involvement, though necessarily
the citizenry be able to learn whether the gov-
subject to the legislatures ultimate control over
ernment is doing its job properly and acting in
the budget.
the best interests of the people. The constitu-
The constitution must also provide that the
tion should contain provisions allowing citizens
lower court judges apply the constitution in
inexpensive and prompt access to all materials
their decision-making. In many of the new
in government files, except those the exposure
democracies, all too often those judges ignore
of which can be shown to endanger national
constitutional issues when making decisions.
security, personal privacy, law enforcement, or
some other vital national interest. Leaving to the
legislature the matter of whether to adopt a

16
measure like this is unwise, for many govern-
ments resist such measures or try to weaken
them substantially. Few public officials are eager
to expose their activities to public scrutiny.

Adopting the Constitution

The final question is how should the constitu-


tion be adopted? By the special constituent
assembly discussed earlier? By the regular par-
liament, as in many European countries? By the
general public? Should the publics involve-
ment take place before or after the constitution
is drafted? If the latter, how should the publics
participation be obtained? These and other
questions have been answered in different ways,
and though many political scientists believe
that the approval of a constitution should be
by the people, that has not been the universal
approach.
Writing a constitution is an experiment, the
results of which will always be significantly dif-
ferent from what was intended and anticipated.
Moreover, the success of a constitution is usual-
ly the result of external factorsthe economy,
the social forces at work within the society, the Herman Schwartz is a professor of law at American
nations foreign relations, natural disasters, and University, Washington College of Law in Washing-
many other factors over which constitutional ton, D.C., where he specializes in constitutional law,
drafters have no control. civil rights, and antitrust and utility regulation. He
Despite these difficulties, new constitu- was a member of the U.S. Delegation to the 50th and
51st Sessions of the U.N. Human Rights Commission,
tions for emerging democracies can make a dif-
in 1994 and 1995. He is the author of numerous
ference. They offer a rare opportunity to create
scholarly works including the book The Struggle for
a society in which human beings can live in Constitutional Justice in Post-Communist Europe,
peace and freedom. History does not offer a (University of Chicago Press, 2000).
nation many such moments, and when they
occur, the challenges must be met, for the
The opinions expressed in this article are those of the author
nations future is at stake. and do not necessarily reflect the views or policies of the U.S.
government.

Issues of Democracy, IIP Electronic Journals, Vol. 9, No. 1, March 2004

17
Constitutionalism and Emerging Democracies

Toward Constitutional Democracy


Around the World
An American Perspective

by A. E. Dick Howard

IN RECENT YEARS I have had the privi-


Professor of law and public affairs A.E. Dick lege of sitting with constitution makers in coun-
Howard delivered remarks on Constitutional- tries seeking to lay the foundations of constitu-
ism, Human Rights, and the Rule of Law in tional liberal democracy. Some years earlier, I
Iraq before a joint hearing of the U.S. Senate gained experience in the art of constitution
committees on the judiciary and foreign relations making when I was involved in the drafting of
on June 25, 2003. In his testimony, Professor Virginias present state constitution. But no
experience has been so instructive as watching
Howard examines the complexities of developing
constitutions take shape in other lands and
constitutional governance in newly emerging
cultures.
democracies and the influence Americas con-
This experience in comparative constitu-
stitution has had. As the people of Iraq move
tionalism has drawn me to ask questions about
toward self-rule, questions of how to institution-
the extent to which one country can assist in, or
alize the principles of democracy enshrined in a
make judgments about, another countrys con-
written constitution are paramount.
stitutional journey. How well do constitutional
ideas travel, especially across the boundaries
of different cultures or legal systems? Are there
universal values by which the relative success
of a constitutional system may be measured?
Or, as some people argue, must constitutions
ultimately be grounded in a countrys culture,
history, traditions, and circumstances? For
Americans, there is the specific question: what

18
relevance does the American constitutional Spain, moving beyond the legacy of the dictator
experience have for other countries? General Franco, has become in every respect a
modern European state. With these and other
The Experience of Central and examples to study, drafters in Central and East-
Eastern Europe ern Europe have fashioned constitutional sys-
tems which in many obvious ways are modeled
To sharpen these questions, consider the expe-
upon Western Europe. For example, Germanys
rience of the countries of Central and Eastern
Constitutional Court has proved the inspiration
Europe. After the collapse of communism, each
for the creation of constitutional courts through-
of those countries set out to write new constitu-
out Central and Eastern Europe.
tions and to design institutions thought to pro-
International norms and documents are an
mote constitutional liberal democracy. Drafters
important source for constitution-makers in
in those countries had several sources on which
post-communist Europe, just as they are in
they could draw in devising new constitutions.
other parts of the world. This is especially true
In some cases they could look back to their
in giving shape and protection to human rights.
own experience. For example, Poles recall the
Thus drafters look to such international docu-
traditions of constitutionalism associated with
ments as United Nations conventions and to
the memorable Constitution of May 3, 1791.
regional arrangements such as the European
Hungarians have a strong tradition of the rule of
Convention on Human Rights and the Organi-
law, having its roots as early as the Golden
zation for Cooperation and Security in Europes
Bull 1 of 1222. But such traditions are often
Helsinki and Copenhagen documents. Also, it
fragmentary and remote. Few countries in Cen-
is common for post-communist constitutions to
tral and Eastern Europe had any extended
state that international law and agreements
experience with constitutionalism, democracy,
shall be domestic law within a country.
or the rule of law before 1989 (Czechoslovakias
One would suppose that constitution-
vibrant democracy between the world wars was
makers in Central and Eastern Europe would
a notable exception).
study the experience of their closest neighbors
Countries in Central and Eastern Europe
in the region. This seems especially helpful
have looked to the experience of Western
when these countries have shared many of the
Europe. Western Europe is the seat of much of
problems of the post-communist world, such as
the core of modern constitutional democracy,
the destruction of civil society during the com-
such as the teachings of the Enlightenment (an
munist era, the stultifying effects of command
18th century European movement based on the
economies, and the cynicism about public life
primacy of human reason), and also the sources
which was spawned by those years. It is my
of many of our basic constitutional principles
impression, however, that drafters in the region
(such as the separation of powers). Moreover,
have not cared much to study their nearest
constitutionalism, democracy, and the rule of
neighbors experiences. This may partly be a
law have taken hold in manifest ways in West-
consequence of historic enmities in the region.
ern Europe since World War II. Germany, rising
But it may also underscore the powerful pull
from the ashes of the war, has become an
of western models, especially in light of the per-
admirable example of constitutional democracy.
vasive wish of countries in Central and Eastern

19
Europe to rejoin the family of Europe, in For two centuries and more, there has been
particular, to become members of the European intense traffic in constitutional ideas between
Union. America and other lands. Highlights of those
Has the post-communist world looked to exchanges include the following.
the American experience and to American The founding era in France and America.
ideas and models? A superficial look at new The French Revolution, in 1789, brought close
constitutions in the region might suggest that French attention to American ideas. American
American influence has been slight. Through- statesman Benjamin Franklin, immensely pop-
out Central and Eastern Europe, one sees, for ular in Paris, undertook to spread news of what
example, parliamentary systems rather than an was happening in America, as did his succes-
American-style congressional system, presi- sor, (future President) Thomas Jefferson. The
dential systems that look more to Western Virginia Declaration of Rights (1776) influ-
Europe (such as France) rather than to the Unit- enced the drafting of Frances Declaration of
ed States, and constitutional courts resembling Rights of Man and the Citizen (1789). When
that of Germany rather than an American-style the French National Assembly debated Frances
Supreme Court. The question of American first constitution, moderate and radical factions
influence, whether in post-communist Europe invoked examples drawn from the experience
or in other countries (such as Iraq), requires, with American state constitutions, especially
however, a deeper enquiry than this superficial Massachusetts and Pennsylvania.
survey might suggest. Liberalism in the nineteenth century. In the
early decades of the nineteenth century, liberal
The Influence of American reformers in Europe and in South America
Constitutionalism: A Historical invoked the United States as proof that liberal
Per spective democracy could survive and flourish. When
the revolutions of 1848 broke out in Europe,
The American revolutionary period was a time
conventions meeting in France and Germany
of remarkable innovation and accomplishment.
frequently dissected American institutions in
Aware of their special place in history, Ameri-
deciding what a liberal constitution might
cas founders shaped such ideas as federalism,
look like in Europe. By this time, French philo-
separation of powers, judicial review, and other
sopher and historian Alexis de Tocquevilles
concepts which have proved to be among the
Democracy in America had heightened interest
core principles of modern constitutionalism, not
in the American experience, especially federal-
only in the United States, but in many other
ism and judicial review. Germanys 1849
countries as well. American society differed in
Paulskirche Constitution, drafted in Frankfurt,
important ways from that of Europe; there was,
was not in fact implemented, but its principles,
for example, no monarchy and no legally
building in part on American ideas (e.g., feder-
entrenched social order. Even so, Europeans
alism and constitutional review), reappeared in
followed with fascination the evolution of Amer-
Germanys Basic Law of 1949. In South Amer-
ican constitutionalism from the Revolutionary
ica, the age of Simon Bolivar brought constitu-
War, through the making of the Constitution,
tions which were often modeled heavily on the
and beyond.
United States Constitution.

20
Political evangelism in the early twentieth Waves of democratization in the latter
century. The most famous effort to export Amer- decades of the twentieth century. The spread of
ican ideas in the early 20th century was, of constitutionalism, democracy, and the rule of
course, President Woodrow Wilsons aim, with law came in waves in the closing decades of the
the allied victory in World War I, to make the twentieth century. The 1970s saw autocratic
world safe for democracy. Wilson did not governments yield to democracy in the Mediter-
expect other countries to adopt an American- ranean countries of Greece, Portugal, and Spain.
style constitution, but he did emphasize self- Spains 1978 Constitution is especially impor-
determination, free elections, the rule of law, tant as a model for other post-authoritarian
individual rights, and an independent judiciary. countries. Attention shifted to South America in
The most successful democracy to rise from the the 1980s, notably to Argentina and Chile. The
ashes of World War I was Czechoslovakia, great year was 1989, the year the Berlin Wall
whose leading founder, Thomas Masaryk, had came down and communism collapsed all over
spent part of the war in the United States, work- Central and Eastern Europe. The shock waves
ing hard to influence American policy, by also hit South Africa, where the apartheid
reminding American audiences of their own regime fell, and a new constitution came into
Declaration of Independence. effect in 1997.
Japan and Germany after World War II. American assistance to constitution mak-
After the Japanese surrender in 1945, General ing and democratization in such places as post-
Douglas MacArthur moved promptly to secure communist countries has been undertaken both
the drafting of a new constitution. Concerned by public and private bodies. Typically the aid
that the Japanese elite, left to their own devices, has taken the form of technical assistance, such
would make little substantial change from the as helping parliaments to update their process-
status quo, MacArthur instructed his military es, nurturing an independent judiciary, and
government to draft a constitution, which they assisting in the drafting of new constitutions
did in a matter of days. and laws. An especially effective program is the
By the time drafting got underway on what American Bar Associations Central European
became Germanys Basic Law of 1949, the Cold and Eurasian Law Initiative, which has sent
War was beginning to dominate American for- hundreds of legal experts to work in scores of
eign policy. The occupying allied powers had a countries.
say, of course, in shaping German post-war pol-
icy. But, with the Americans and their allies The Place and Relevance
seeing the Soviet Union as the greater threat, of the American Constitutional
the Germans had a freer hand in the Basic Experience
Laws drafting. There are important ways in
Constitutionalism must be understood as an
which the Basic Law has principles familiar to
expression of culture. Few would argue with this
Americans, such as federalism and judicial
proposal if it is advanced as a caveat, namely,
review. But the 1949 document owes much to
that one should always take culture into
Germanys own constitutional tradition, includ-
account in thinking about constitutions and
ing the Paulskirche Constitution.
constitutionalism. But some observers take the

21
Members of the Iraqi Governing Council look on as
Hachim al-Hasani, the representative of member Mushin
Abdul Hamid, signs Iraqs new interim constitution in
Baghdad, Monday, March 8, 2004.
argument further, contending that there are no
universal elements of constitutionalism. For
example, by this view, community or group
rights could be valued above individual rights. judicial interpretation. Also, the United States
American constitutionalism was the result Constitution is, in a sense, an incomplete docu-
of Enlightenment assumptions, steeped in ment, in the sense that its framers assumed the
British constitutionalism, and shaped in the existence and function of the states and there-
historical settings of America. Some argue, fore of state constitutions (documents which in
therefore, that the teachings of American con- many ways are rather more like constitutions in
stitutionalism cannot be exported to other cul- other countries).
tures. Such arguments often cite the failure of All of these observations ought to be taken
past Latin American constitutions based on the into account, especially before assuming that
U.S. model and more recent problems in places what has worked well in America must surely
such as the Philippines. work for other peoples as well. But the prob-
Even those who think the American expe- lems of comparative constitutionalism ought not
rience is relevant and useful find limits in the to be turned into categorical barriers. The use-
United States Constitution as a model for for- fulness of the American experience does not lie
eign drafters. The document was written in the in the formal text of the United States Constitu-
18th century, reflects the insights of that era, tion. It is to be found in the general principles
and has required formal amendment (notably which are reflected in American constitution-
the post-Civil War amendments) and extensive alism and, further, in the practical experience of
making constitutional democracy work.

22
Factor s Bearing on the norms of cooperation and tolerance associated
Prospects for Constitutional with the rising and falling fortunes of social and
Liberal Democracy political causes, candidates, and parties. It
means that those who lose an election turn the
It is not enough that a society be democratic. It
reigns of power over to the winners. It means
must also be liberal and constitutional. Democ-
that those who find that a victory in the legisla-
racy seeks to assure that government is based
tive process is overturned on constitutional
upon the consent of the governed and is
grounds by a court accept the principle of con-
accountable to the people. But democracies
stitutional limits on government.
should also be liberal, that is, committed to
An open society, including free and respon-
individual rights and freedoms, to the princi-
sible press and media, goes hand in hand with
ples espoused by English philosopher John
constitutionalism and democracy. There should
Locke that the state depends on the individual,
be the means for open and effective communi-
not the other way around. And democracies
cation among the people and between them and
must also be constitutional, that is, there must
their government.
be means to assure the enforcement of constitu-
Civil society should flourish. Private orga-
tional norms, even when that means negating a
nizationspolitical parties, trade unions, inter-
majoritarian judgment. The following factors
est groups, clubs, etc.create an important
are critical to the success of constitutional lib-
buffer between the individual and the state.
eral democracy.
Such organizations offer a place of refuge for
A country should have sufficient military
those who think that the politics of the moment
strength, as well as social and economic stabil-
are not in their favor. They offer training
ity, to counter foreign aggression and to guard
grounds for the qualities that make for effective
against internal subversion or unrest. Strength
citizenship and make possible the kind of col-
need not come, of course, solely from its own
lective voice and action that precludes the
resources, a country may properly look to its
states monopoly of power.
allies for assistance.
States should be based on the civic, rather
A vibrant constitutional culture often goes
than ethnic or national, principle. That is, all
hand in hand with a healthy economy. I do not
citizens should have equal standing in the soci-
contend that, because countries are rich, they
ety. There should not be insiders and out-
will necessarily be constitutional democracies.
siders. If the state is not largely homogeneous
But it does seem fair to say that poor economic
in terms of religion, language, ethnicity, or cul-
conditions often work to undermine any hope
ture, then there needs to be a widely felt com-
for constitutional democracy.
mitment to the rights of minority groups. To
There should be a political cultureI would
make constitutional liberal democracy work,
call it a constitutional culturethat encourages
the people must have a level of mutual trust,
the values of constitutionalism, liberalism,
and ability to cooperate, rather than fragment-
democracy, and the rule of law. This implies a
ing into camps of hate and hostility.
high level of literacy. But it also implies circum-
Ultimately, history, culture, and circum-
stances in which citizens have practiced the
stance will tell us much about the prospects for

23
constitutionalism, democracy, and the rule of
law in any country. Those who hope to see these
values prosper in newly established democra-
cies must understand those countries, their
peoples, histories, and cultures. An example is
the argument over the extent to which Islam is,
or is not, ultimately compatible with constitu-
tional liberal democracy in a country such as
Iraq. Iraqs own history, for example, raises the
question whether the parliamentary experience
of the Hashemite rule in the years before 1958
has any useful legacy, or whether the middle
class has been sturdy enough to survive the
years of Saddams repressions. Experts on Iraq
will help inform these judgments. But those
who would shape events in Iraq should also
consult the lessons to be learned from transi-
tions from totalitarian or authoritarian regimes
elsewhere. The road to constitutionalism,
democracy, and the rule of law takes one
through many lands.

A. E. Dick Howard is White Burkett Miller Professor


of Law and Public Affairs and Roy L. and Rosamond
Woodruff Morgan Research Professor of Law at the
University of Virginia. He is widely acknowledged as Note:
an expert in the fields of constitutional law, compar- 1. Refers to a charter granted by King Andrew II of Hun-
ative constitutionalism, and the U.S. Supreme Court. gary in 1222, which stated the basic rights and privi-
Before coming to Virginia, Professor Howard served leges of the Hungarian nobility and clergymen and the
for two years as law clerk to U.S. Supreme Court Jus- limits of the monarchs powers.
tice Hugo L. Black. Howard has briefed and argued
cases before state and federal courts, including the
Supreme Court of the United States. Often consulted
by constitutional draftsmen in other U.S. states and
The opinions expressed in this article are those of the author
abroad, Professor Howard has compared notes with and do not necessarily reflect the views or policies of the U.S.
government.
revisors at work on new constitutions in such places
as Brazil, the Philippines, Hungary, Poland, and
Photograph page 22: AP/WWP, Brennan Linsley
South Africa.
Issues of Democracy, IIP Electronic Journals, Vol. 9, No. 1, March 2004

24
Constitutionalism and Emerging Democracies

The Importance of
Judicial Independence

Remarks by Sandra Day OConnor


Associate Justice, Supreme Court of the United States
Before the Arab Judicial Forum, Manama, Bahrain
September 15, 2003

A LEXANDER H AMILTON , one of the Let us keep in mind the importance of indepen-
Framers of the United States Constitution, wrote dence to the effective functioning of the judicial
in The Federalist No. 78 to defend the role of the branch.
judiciary in the constitutional structure. He The principle that an independent judi-
emphasized that there is no liberty, if the ciary is essential to the proper administration of
power of judging be not separated from the leg- justice is deeply embedded in Arab legal insti-
islative and executive powers.[L]iberty can tutions. Virtually every Arab constitution guar-
have nothing to fear from the judiciary alone, antees judicial independence. For example, the
but would have every thing to fear from its Constitution of the Kingdom of Bahrain pro-
union with either of the other departments. vides, in article 104, that The honor of the
Hamiltons insight transcends the differences judiciary, and the probity and impartiality of
between nations judicial systems. For only with judges, is the basis of government and the guar-
independence can the reality and the appear- antee of rights and freedoms. No authority shall
ance of zealous adherence to the Rule of Law be prevail over the judgment of a judge, and under
guaranteed to the people. As former U. S. Pres- no circumstances may the course of justice be
ident Woodrow Wilson wrote, government interfered with. The law guarantees the inde-
keeps its promises, or does not keep them, in pendence of the judiciary. Article 65 of the
its courts. For the individual, therefore,the Egyptian Constitution provides: the indepen-
struggle for constitutional government is a dence and immunity of the judiciary are two
struggle for good laws, indeed, but also for basic guarantees to safeguard rights and liber-
intelligent, independent, and impartial courts. ties. Jordans Constitution, in article 97, pro-
claims that Judges are independent, and in the

25
exercise of their judicial functions they are sub- cated on the basis of previously established
ject to no authority other than that of the law. rulesis strengthened.
We see the same fine notions embodied in An independent judiciary requires both
the six Bangalore Principles of Judicial Con- that individual judges are independent in the
duct, developed under the auspices of the Unit- exercise of their powers, and that the judiciary
ed Nations to further the prospects of strength- as a whole is independent, its sphere of author-
ening judicial integrity. The very first principle ity protected from the influence, overt or insid-
reads: Judicial independence is a pre-requi- ious, of other government actors. In the words of
site to the rule of law and a fundamental guar- the Bangalore principles, judicial indepen-
antee of a fair trial. A judge shall therefore dence has both individual and institutional
uphold and exemplify judicial independence in aspects.
both its individual and institutional aspects. Addressing first the independence of
The Cairo Declaration on Judicial Indepen- individual judges, two avenues for securing
dence, formulated in the Second Arab Justice that independence reveal themselves: First,
Conference in February 2003, agree[d] that an judges must be protected from the threat of
independent judiciary is the main pillar sup- reprisals, so that fear does not direct their deci-
porting civil liberties, human rights, compre- sion-making. Second, the method by which
hensive development processes, reforms in judges are selected, and the ethical principles
trade and investment regimes, regional and imposed upon them, must be constructed so as
international economic cooperation, and the to minimize the risk of corruption and outside
building of democratic institutions. influence.
This principle also undergirds the place of In the United States, protection from
the judiciary in the United States. The Founders reprisals is achieved primarily by keeping the
of the United States recognized that it is essen- positions and salaries of judges beyond the
tial to the effective functioning of the judiciary reach of external forces. The U.S. Constitution
that it not be subject to domination by other provides that federal judges hold office during
parts of the government. To accomplish this good behavior. This is understood to mean for
goal, the United States Constitution established life, absent the most serious misconduct. The
an independent federal judiciary by separating Constitution also assures that the compensation
the law-making function of the legislative of federal judges may not be reduced while they
branch from the law-applying role of the judi- are in office. Together, these provisions ensure
cial branch. This separation of the legislative that judges will not be afraid to enforce the law
and judicial powers has proven essential in as they see it. Security in pay and position frees
maintaining the Rule of Law. When the roles of judges to exercise their best legal judgment in
lawmaker and judge are played by different applying the law fairly and impartially to the
state actors, the danger of government arbitrari- parties before them. The Kingdom of Bahrain
ness is greatly diminished. When the power to has taken a similar approach to ensuring that
make laws is separated from the power to inter- the members of the new Constitutional Court
pret and apply them, the very foundation of the will be secure in their positions, by providing in
Rule of Lawthat controversies are adjudi- Article 106 of the Constitution that the Courts

26
members are not liable to dismissal during dations will serve not only the need to choose
the period of their service. each candidate on merit, but will temper any
Steps must also be taken to ensure that institutional bias that might arise if the judi-
judges exercise their powers impartially and not ciary were entirely homogenous.
according to any personal interest or outside Adherence to the principles of judicial
influence. Judges must not be influenced by independence is not without difficulties. A par-
bias toward or against particular litigants, nor ticularly troubling issue is the tension that
by having a personal stake in the outcome of a arises, once a judge is appointed, between inde-
particular case. Judges will never win the pendence from political pressure and indepen-
respect and trust of the citizens if they succumb dence from the taint of personal interest. Pro-
to corrupting influences. Whenever a judge tection from influence exerted by other branch-
makes a decision for personal gain, or to curry es of government, and even by other judicial
favor, or to indulge a personal preference, that bodies, such as through life tenure and salary
act denigrates the rule of law. The selection of protection, entails to a large degree protection
judges and the ethical principles guiding their from discipline. Certainly, if a judge fails to
conduct must be managed with these concerns adhere to the most fundamental requirements of
at the fore. independenceby taking bribes, for example
Selection of judges according to the candi- removal will be warranted. But short of such
dates merit is, naturally, key to ensuring that a acts, discipline is difficult.
judge will act impartially. Considerations other In the United States, maintaining a fair and
than merit motivating a political actor to appoint independent judiciary has been accomplished
a judge (or voters to elect a judge) are likely to with remarkable success through self-adminis-
be the very considerations that will prevent a tered ethical norms. In the words of former Chief
judge from deciding cases fairly and without Justice Harlan Stone, the only check upon our
bias. Recognizing that these interests are served own exercise of power is our own self restraint.
by drawing from the largest possible pool of Every U.S. state and the federal judiciary has
meritorious candidates, the Beirut Declaration a code of conduct that promotes adherence to
of the First Arab Conference on Justice recom- the highest ethical norms. The very first canon
mends that [t]he election of judges shall be of the Code of Conduct for federal judges ad-
free of discrimination on basis of race, color, monishes judges to uphold the integrity and
sex, faith, language, national origin, social sta- independence of the judiciary. As the Code of
tus, birth, property, political belonging, or any Conduct explains, [a]n independent and hon-
other consideration. Particularly when electing orable judiciary is indispensable to justice in
judges, the principle of equal opportunity must our society.
be followed to guarantee that all applicants for In addition to placing tangible restrictions
a judicial position are objectively assessed. In on judges conduct, such as by prohibiting
addition, the Declaration recommends that judges from deciding a case in which he or she
[n]o discrimination is permitted between men has a personal interest, the Code of Conduct
and women with respect to assuming the judi- recognizes the importance of perceptions of the
cial responsibility. Heeding these recommen- judiciary. A perception of corruption, bias, or

27
other unethical traits can be almost as harmful can influence the work of the judiciary as a
to societys confidence in its legal system and whole. The Beirut Declaration recommends that
its respect for the rule of law as the reality of [t]he state shall guarantee an independent
those traits. Judges must not only avoid impro- budget for the judiciary, including all its
priety, but also the appearance of impropriety, branches and institutions. This budget shall be
if public confidence in the judiciary is to be included as one item into the state budget, and
maintained. Thus, the Code of Conduct for fed- shall be determined upon the advice of the
eral judges provides that judges should refrain higher judicial councils within the judicial bod-
from conduct that would create a perception ies. The Cairo Declaration urged governments
that the judges ability to carry out his or her to guarantee the financial independence of
judicial responsibilities with integrity, impar- judiciaries. Ensuring adequate and uncondi-
tiality, and competence is impaired. By insist- tional financing, in accordance with these Dec-
ing that judges establish, maintain and enforce larations recommendations, is a crucial step in
the highest standards of conduct, judicial codes insulating the judiciary from improper influ-
of ethics are designed to ensure impartiality ence.
and that every case receives a fair hearing. A more complicated issue is that of the
The Cairo Declaration urged governments interplay between executive officials and the
in the Arab region to [a]dopt a professional judiciary. I mentioned earlier the tension that
code of ethics consistent with the noble mission exists between independence from other gov-
of the judiciary. A simple and attractive way to ernment actors on the one hand and, on the
do so is to adopt the Bangalore Principles, other, ensuring that judges do not compromise
which are a well-considered set of ethical their own independence by succumbing to per-
norms. They are organized around six core val- sonal bias or corrupting influences. In the Unit-
ues: independence, impartiality, integrity, pro- ed States, we are more solicitous of the former
priety, equality, and competence. Concrete and concern, and leave the latter mostly up to the
detailed instructions give practical content to judiciarys self-regulating ethical principles.
each of the values. I believe that the Principles, Different circumstances might of course require
where adopted, will play as effective a role as that the balance between the two be struck else-
the various Codes of Conduct have done in the where. Care must always be taken to ensure,
United States. however, that the independence of the judiciary
I have so far been discussing mechanisms not be compromised by acts taken under the
to ensure that individual judges will be able to guise of disciplining wayward judges.
perform their work free from outside influence. Judicial independence is not an end in
But an independent judiciary also requires pro- itself, but a means to an end. It is the kernel of
tection from more systemic influence from other the rule of law, giving the citizenry confidence
parts of government. A fundamental aspect of that the laws will be fairly and equally applied.
this institutional independence is ensuring that Nowhere is this interest more keenly exposed
the judiciary receives adequate funding. Just than in the judicial protection of human rights.
as salary protection is necessary to individual Judicial independence allows judges to make
judges independence, overall financing issues unpopular decisions. Federal judges in the

28
United States have at times been called upon to
stand firm against the will of the majority. For
instance, the 1954 Supreme Court decision in
Brown v. Board of Education, which declared
that separate educational facilities for children
of different races are inherently unequal, pro-
voked a firestorm of criticism in much of the
country. The decision, however, was a crucial
moment in the recognition of civil and political
rights in the United States.
Judicial independence also allows judges
to make decisions that may be contrary to the
interests of the other branches of government.
Presidents, ministers and legislators at times
rush to find convenient solutions to the exigen-
cies of the day. An independent judiciary is
uniquely positioned to reflect on the impact of
those solutions on rights and liberty, and must
act to ensure that those values are not subverted.
Independence is the wellspring of the courage
needed to serve this rule of law function.
Every country will place its own distinct
stamp on the legal system it creates, but some
principles transcend national differences. The
importance of a strong and independent judi-
ciary is one such principle. But, while it is easy
enough to agree that judicial independence is
essential in order to uphold the rule of law,
more challenging by far is the task of putting
these precepts into practice.

Sandra Day OConnor was nominated to serve on the


U.S. Supreme Court by President Ronald Reagan.
She took her seat September 25, 1981.

Issues of Democracy, IIP Electronic Journals, Vol. 9, No. 1, March 2004

29
Constitutionalism and Emerging Democracies

Democratic Constitution Making


The South African Experience

by Vivien Har t

D EVELOPING NATIONS in Africa and


South Africas constitutional process was one of elsewhere are experimenting with new structures
its first truly national endeavors, encouraging and forms of participation in an attempt to
participation from all sectors of the countrys develop an open process that places initiative
once-divided society. The author pays special in the hands of citizens and creates a constitu-
tional conversation. In many cases, rather than
attention to the methods and procedures by
working within the framework of an existing
which participation was encouraged and the
body of procedures and precedents, these
time required to reach agreement on a new con-
nations are starting with a clean slate.
stitution. This article has been excerpted from The South African Constitution of 1996,
Special Report: Democratic Constitution Mak- for example, is widely regarded as a model con-
ing, a publication of the United States Institute stitutional text. Likewise, the process by which
of Peace it was made has been hailed as a key part of the
successful transition from the oppression of
apartheid to a democratic society. The following
features of the South African process illustrate
the context and challenges of democratic con-
stitution making and set the context for evaluat-
ing its general potential and problems.

Negotiations on Process

In all, it took seven years, from 1989 to 1996,


to achieve the final constitution. Almost five
years elapsed between the first meeting

30
between African National Congress leader Nel- tion; a first working draft was published in
son Mandela and Prime Minister P. W. Botha in November 1995, leaving aside 68 issues for
1989 and agreement on an interim constitution further work; a revised draft was produced the
and the first non-racial election in 1994. following year; and a final text in May 1996.
Throughout these years, outbreaks of violence From July through September 1996, the Consti-
threatened the process. tutional Court reviewed the text; the court then
In a key phase from 1990 to 1994, agree- returned the text to the assembly for amend-
ments on process were negotiated in private and ments, which were made in October. In Novem-
public sessions between former adversaries. ber, the court gave its final certification and in
These included an agreement to negotiate about December, President Mandela signed the con-
constitutional negotiations; prolonged argu- stitution into law.
ments about the form the constitution-making
process should take; and 1993 agreements on Establishing Dialogue and Tr ust
procedures and, ultimately, agreement on an
The South African process took time. It was
interim constitution including principles and
phased. It benefited from an interim constitu-
procedures binding on the final constitution-
tion that allowed the dialogue of transition to
making process.
continue. Participation was invited at a chosen
In April 1994, the first non-racial election
moment rather than throughout and then cre-
for parliament was held with a voter turnout of
ativity and resources were committed to facili-
about 86 percent. The following month, the new
tating a serious dialogue. Trust that the outcome
parliament met for the first time as the Consti-
would be consistent with the 1994 democratic
tutional Assembly.
principles was created by the continuation of
In the mid 1990s, the South African
the conversation between judicial certification
process became a full-scale demonstration of
and parliamentary confirmation. Groups
participatory constitution making. Until that
including women and traditional authorities
time, the public had had no direct role in con-
found voice and access and made sure that their
stitution making. Now their elected representa-
interests were taken into account. Also impor-
tives in the assembly reached out to educate
tant was the fact that South Africa had a pre-
them and invite their views. The educational
existing civil society that could be drawn in as
effort included a media and advertising cam-
a counterweight to the entrenched racial and
paign using newspapers, radio and television,
partisan divisions of politics. Other important
billboards, and the sides of buses; an assembly
factors that sustained the formal process
newspaper with a circulation of 160,000; car-
include patience, especially in the face of vio-
toons; a Web site; and public meetings; togeth-
lence; a willingness by all concerned to take
er these efforts reached an estimated 73 percent
some bold steps; and a combination of negotia-
of the population. From 1994 through 1996, the
tion in private over some of the most difficult
Constitutional Assembly received two million
issues and unprecedented public involvement.
submissions from individuals, advocacy groups,
Only a considerable commitment of time
professional associations, and other interests.
and resources makes genuine public participa-
In the final phase, in tandem with the par-
tion possible. Even if we count South Africas
ticipatory campaign, committees of the assem-
starting point as the moment of agreement in
bly drafted a new constitution within the para-
1991 to negotiate the process, constitution
meters attached to the 1994 interim constitu-
making in that highly successful case took at

31
South African President Nelson Mandela, center, and
deputy presidents, Thabo Mbeki, left and F. W. de Klerk,
right, celebrate the new constitution, May 8, 1996.
least five years. Many would argue that the
process was underway at least two years before
that, from the moment leaders began tentative been excluded on racial grounds, this was a
approaches across the racial divide; clearly, momentous act. Approximately 86 percent of
part of the process is the building of an ade- the population voted. The number of voters, as
quate level of trust between elites and among well as the number of submissions to the Con-
the general public to enable a constitutional con- stitutional Assembly, confirm that the public
versation to take place at all. will participate where they see the issues and
Modes of participation vary considerably outcomes as important.
there is no one model appropriate to all
nations. South Africa elected a parliament that Vivien Hart is a research professor at the University of
acted as the Constitutional Assembly. South Sussex, where she previously served as the director of
Africa sought out public opinion through a vari- the Universitys Cunliffe Centre for the Study of Consti-
ety of channels, used media imaginatively, and tutionalism and National Identity, an international
devised materials to make constitutional issues research network involving scholars and activists from
accessible in multiple languages. the United Kingdom, Europe, United States, Canada,
South Africa, Sri Lanka, and Fiji. Her book, Women
But the public was not involved equally at
Making Constitutions, edited with Alexandra Dobro-
all stages of the South African and other wolsky, was released in November, 2003. Hart was a
processes. While South Africans could follow senior fellow in the U.S. Institute of Peaces Jennings
the progress of public negotiations up to 1994, Randolph Program for International Peace in
some absolutely critical deadlocks along the 20022003.
way were resolved in secret meetings. The
entire public was first invited to take part in the The opinions expressed in this article are those of the author and do
not necessarily reflect the views or policies of the U.S. government.
1994 election, the most conventional form of
participation. But in the South African context, Photograph above: AP/WWP, B. K. Bangash
where most of the population had previously
Issues of Democracy, IIP Electronic Journals, Vol. 9, No. 1, March 2004

32
Constitutionalism and Emerging Democracies

Constitutionalism in the Muslim World


A Conversation with Noah Feldman

IN YOUR BOOK , After Jihad, America and


In this interview, law professor and Islam expert the Struggle for Islamic Democracy, you argue that
Noah Feldman reflects on his experiences with Islam and democracy are not incompatible and
two of the worlds newest constitutional process- that Islamic values and democratic ideals can co-
exist in a successful society. What led you to that
es. He was an advisor to the State Department on
conclusion?
religious liberty issues in the drafting of the
Afghan constitution. In Iraq, he was a senior Dr. Feldman: There are several issues at stake
constitution advisor to the Coalition Provisional here. First is that many, many people in the
Authority from April to July 2003. He continues Muslim world say publicly they believe that
democracy and Islam can work together well.
to advise various members of the Iraqi Governing
Of course, there are Islamic countries that are
Council, and he consulted in the drafting of democratic and relatively successful at democ-
some of the interim constitutional documents. racy. Turkey is the most obvious example, but
one could also look to Indonesia or Bangladesh
as democracies that are finding their feet. In
addition, there have been recent democratic
reforms in a range of other Muslim countries
the new constitution in Bahrain, to give one
striking example.
At a practical level, we see that Islamic
democracies can and do exist, and at a theoret-
ical level, a growing number of scholars and
ordinary people in the Muslim world argue that
the traditions of Islam and democracy arent
incompatible and can be made to work together.

33
Participants of the Afghan Loya Jirga, or grand council,
listen to delegates on the second day of meeting,
Question: When it comes time to develop a December, 2003 in Kabul, Afghanistan. Afghan elders
gathered in Kabul to draft the countrys constitution.
democratic constitution in an Islamic country,
what are some of the special considerations and
specific challenges?

Dr. Feldman: Well, the first is at the theoretical Afghanistan


level. People have to come to see the general
approaches of the two as not incompatible. Question: In Afghanistan, what kinds of structural
Some people think that because God is sover- issues did the drafters face?
eign in Islam, the people cant be the ultimate
Dr. Feldman: Those kinds of issues are impor-
decisionmakers in their governance. There
tant in any constitution writing process. They
might be a difficulty in resolving the political
dont specifically relate to the Islam-democracy
power of the people and the sovereignty of God.
question. You could have a strong executive
But at the theoretical level, I think its pos-
branch of government in Islamic democracy or
sible to respond that in Islam, although God is
a weak executive. Those are very important
sovereign, Gods laws are still interpreted by
questions for any constitution across the board.
humans, and day-to-day governance happens
What they had to deal with in Afghanistan
by people, not by God. Whats more, in democ-
was the fact that the constitution declares Islam
racy we believe there are some fundamental
to be the official religion of the state. But it also
rights that transcend what the people might or
declares the Afghan state to be one in which
might not think was right at a given point, like
there are elections and democratic values.
the right to life and liberty.
They had to deal with the structural ques-
Then there is the practical process of figur-
tion of when to apply Islamic law. They came up
ing out institutions within the constitution that
with a provision in the constitution, which orig-
will mediate between Islamic and democratic
inally appeared in the 1906 Iranian draft con-
values when they might appear to outside
stitution, stating that no law made by the people
observers to be in contention with each other.
shall be contrary to Islam.

34
They also created a constitutional court incompatible with their equality.
that presumably has the power to adjudicate Maybe the court will just interpret the
whether a given law violates the values of Islam. Shariah to be egalitarian, and that would be one
Here we see an example of a place where they possible outcome. That issue isnt explicitly
identified a potential conflict, and they adjudi- addressed. So, yes, there is a sort of gap, if you
cated it. To be more precise, they created an will, left there. It will be up to this constitution-
institution to adjudicate the conflict. al court to deal with it.

Question: I understand that the high court is Question: Womens groups have expressed a con-
going to be a combination of secular law judges cern that the guarantee for womens rights in the
and Islamic judges. Are you optimistic that will constitution is not as clearly stated or as strong as
work? they would have preferred.

Dr. Feldman: Its an experiment. It has the pos- Dr. Feldman: There is a specific [number of del-
sibility of working, but there are certainly no egates] set aside for women in the legislature,
guarantees. Its an experiment with a body that and an express guarantee of equality for women
will be able to mediate between those two dif- in the constitution. Theres also a guarantee
ferent sets of values, and do it in a way that is that Afghanistan will abide by international
perceived as legitimate by the rest of the treaty obligations, which include the [U.N.]
Afghan people. Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW).
Question: Does Shariah play any other role under Those are three pretty strong guarantees,
the constitution, besides in the high court and in notably none of which are noted in the U.S.
the part you just referred to stating that no law Constitution. We dont have a set aside for
shall be made that goes against Islam? women in the legislature. We dont have an
expressed mention of women as equal in our
Dr. Feldman: There is a guarantee that where Constitution, nor have we ever ratified the
Shariah is applied, the particular school of CEDAW. It could always be better, but thats a
Shariah that a given person belongs to will be good start by Afghanistan, I think.
respected, so no one will be obligated to follow
a branch of Shariah that is not their own IRAQ
branch.
This provision is guaranteed in the consti- Question: Let's move on to Iraq. The Iraqi Gov-
tution. That is probably the most prominent erning Council adopted a so-called "interim con-
place where Shariah plays a role. Interestingly, stitution" on March 8. What does this do, and
there is no provision saying specifically that how long will it be in effect?
Shariah is a source of legislation or the source
of legislation in that constitution.
Dr. Feldman: What it does in principle is that it
Question: Are there deliberate ambiguities or creates a framework for government, first dur-
gaps in the Afghan constitution? For example, ing the transitional period prior to national
issues that couldnt be decided on or for which elections in January 2005, and also it provides
consensus and agreement couldnt be reached a framework for what the government will look
that are to be left to the future somehow? like once those elections take place. In reality,
it still remains to be seen whether the constitu-
Dr. Feldman: The constitution guarantees the tion will go into effect as written, or whether it
equality of women, but doesnt address the will be changed. As of right now, the Governing
question of what would happen if some particu- Council members have agreed to abide by it
lar provisions of Islamic law were seen to be after June 30.

35
Question: Are there indications that there will for all Iraqis whether they are men or women,
be a lot of pressure to change the interim consti- regardless of their religion or their ethnicity or
tution? national origin. It is very comprehensive list of
rights, a remarkable document in that respect.
Dr. Feldman: There is already pressure to change
it. The very day that it was signed, Shia leader Question: Does it have provisions for women in
Ayatollah al Sistani said that he had issues with government?
it. Other Shia leaders seemed to have echoed
those concerns. The concern that Ayatollah al Dr. Feldman: It does. The Transitional Adminis-
Sistani has spoken of expressly in a recent let- trative Law states The National Assembly shall
ter to the United Nations Special Representa- be constructed in such a way as to ensure that
tive, Lakhdar Brahimi was that the three-man 25 percent of the representatives to the Nation-
presidency created by the transitional constitu- al Assembly are women. Now, there is some
tion is insufficiently majoritarian. His letter debate over whether that is a strict quota or
states that he hopes the U.N. Security Council whether that is a target to aspire to. The lan-
resolution will not endorse the entire document guage is somewhere in between, but I would say
as it stands, but will recognize that the Nation- closer to an express requirement that the
al Assembly has the authority to amend this National Assembly be made of at least 25 per-
document. He specifically implied that he cent women.
would like to see an amendment to the three-
man presidency. Question: Do you expect that there will be a wide
public debate on the document?
Question: So the structure of the government is a
presidential rather than a parliamentary system? Dr. Feldman: I do. The document was drafted
without major public participation. That is a
Dr. Feldman: No, it actually is a parliamentary defect understood by all. There will now be a
system with a prime minister, and then a three- debate, first of all, about the character of the
man presidency which has some real powers, transitional law itself. I expect there to be a
some veto powers, but which is not the primary robust debate about that. And then, I expect
executive. there to be a further debate on the question of
what aspects of this document should be altered
Question: What does the interim constitution or should remain the same in a subsequent per-
have to say about human rights and religious free- manent constitution which is to be both drafted
dom? and ratified by the National Assembly.
Dr. Feldman: It guarantees freedom of religion, Question: In terms of political activity, does the
freedom of conscience, freedom of thought in transitional constitution prohibit, as the Afghan
language that is borrowed from the Universal constitution does, political parties organized
Declaration of Human Rights. It also specifies around regional or ethnic groups?
a whole list of basic human rights familiar from
international human rights documents: rights Dr. Feldman: It does not, nor could it have done
against torture, rights to equal protection of a so and remain consistent with the political
citizen, rights to due process of law, and so forth. organizations associated with Kurdish parties.
The Kurdish Democratic Party and the Patriotic
Question: So it's close to being a complete Bill of Union are both organized around Kurdish iden-
Human Rights? tity and come out of Kurdistan.
Dr. Feldman: I would describe it as an exhaus- Question: If the constitutions in Iraq (eventually)
tive bill of human rights. It guarantees equality and in Afghanistan enjoy some success and foster

36
stability and new freedoms for their citizens, what elections, and they are the ones who really
impact do you think this will have on the rest of brought about a loss of freedom in the country.
the region? I do think that elections everywhere in the
Muslim world, where they have been somewhat
Dr. Feldman: I think it will throw into relief the free in recent years, have led to Islamic parties
lack of freedom and democracy in some of the doing very well. I would expect the same thing
neighboring countries. Iran had some very to happen in Iraq, and indeed in Afghanistan.
promising democratic developments which now Thats the general trend that one sees. That
seem to be short-circuited, and if you see Shiah doesnt mean that those parties are necessarily
Clerics in Iraq calling for open, free elections, going to act undemocratically. Turkey is an
and Shiah Clerics in Iran calling for limited example where the party that is in power is a
election, it will have an influence on Iran, moderately Islamic party, but they dont go by
because Iranians will see even more clearly that name. Turkeys official secularism dictates
than they already do just how failed their sys- they cant, but they are. They have been gov-
tem has become. erning very democratically.
Similarly, in Saudi Arabia, people will see
on satellite television, public debate over Question: So, once they came to power, they kind
important constitutional issues, and they will of moderated themselves?
see that those kinds of debates dont bring the
house down necessarily, and that will increase Dr. Feldman: In Turkey, they were relatively mod-
pressure for opening and liberalization there. erate when they were running for office. I think
In Syria as well, I think there will be an the reality of being in a democracy is you have
increased sense of the necessity of greater to get re-elected. As long as you have to get re-
reform than has happened heretofore. I think it elected, you cant govern in a way that
is going to have a positive effect everywhere in is going to alienate large segments of the popu-
the region. lation. In Iran, by contrast, where the rulers
If democracy fails in Iraq, its going to came to power by revolution, they are able to
have a negative effect everywhere in the region. get away with oppressive measures, even
People who are advocates of liberalization and though the people profoundly reject them.
democratization will increasingly come to see There is obviously a significant difference
and think that democracy is not a viable gov- between coming to power in a legitimate way
ernmental structure in majority-Muslim coun- and coming to power by force.
tries. That would be a terrible, terrible shame.

Question: The question a lot of people ask is:


Noah Feldman is a professor at the New York Univer-
What happens if Islamic extremists are elected
sity School of Law in New York City. A former
democratically? You give a disturbing example of
Supreme Court clerk, he earned a doctorate in Islam-
Algeria in your book.
ic thought from Oxford University in England as a
Dr. Feldman: I think one thing to be clear about Rhodes Scholar. He is the author of After Jihad:
Algeria, despite what many people recall, is America and the Struggle for Islamic Democracy. He
that it wasnt in fact the Islamists who drove the was interviewed by Leslie High.
country into civil war. The Islamists didnt say
they were going to abolish democracy. To the The opinions expressed in this article are those of the author
and do not necessarily reflect the views or policies of the U.S.
contrary, they said they were willing to partici-
government.
pate democratically. They never got the chance
to prove that one way or the other, though, Photograph page 34: AP/WWP, B. K. Bangash
because the military government called off the
Issues of Democracy, IIP Electronic Journals, Vol. 9, No. 1, March 2004

37
B i b l i o g r a p h y

Fur ther Reading on Constitutionalism

Bailyn, Bernard. Feldman, Noah.


To Begin the World Anew: The Genius After Jihad: America and the Struggle for Islamic
and Ambiguities of the American Founders. Democracy. New York: Farrar, Straus,
New York: Alfred K. Knopf, 2003. & Giroux, 2003.

Belz, Herman. Ferejohn, John et al., eds.


A Living Constitution or Fundamental Law? Constitutional Culture and Democratic Rule.
AmericanConstitutionalism in Historic Perspective. Cambridge; New York: Cambridge University
Lanham, Maryland: Rowman & Littlefield, 1998. Press, 2001.

Berggren, Niclas, et. al., eds. Finer, S.E. (Samuel Edward), et. al. eds.
Why Constitutions Matter. New Brunswick, Comparing Constitutions. Oxford: Clarendon
New Jersey:Transaction Publishers, 2002. Press; New York : Oxford University
Press, 1995.
Billias, Goerge Athan, ed.
American Constitutionalism Abroad: Selected Hassen, Ebrahim.
Essays in Comparative Constitutional History. The Soul of a Nation: Constitution-Making
New York: Greenwood Press, 1990. in South Africa. Oxford: Oxford University
Press, 1998.
Blaustein, Albert P., ed.
Constitutions That Made History. Henkin, Louis et. al., eds.
New York: Paragon House Publishers, 1988. Constitutionalism and Rights: The Influence
of the United States Constitution Abroad.
Chemerinsky, Erwin. New York: Columbia University Press, 1990.
Constitutional Law: Principles and Policies.
New York: Aspen Law & Business, 2002. Hoffman, Daniel N.
Our Elusive Constitution: Silences, Paradoxes,
Faigman, David L. Priorities. Albany: State University of
Laboratory of Justice. New York:Times New York Press, 1997.
Books: Henry Holt, 2004.

38
Howard, A.E. Dick. Schwartz, Herman.
Democracys Dawn: A Directory of American The Struggle for Constitutional Justice in Post-
Initiatives on Constitutionalism, Democracy, Communist Europe. Chicago: University of
and the Rule of Law in Central and Eastern Chicago Press, 1999.
Europe. Charlottesville,Virginia: University
Press of Virginia, 1991. Seidman, Louis Michael.
Our Unsettled Constitution: A New Defense of
Jackson,Vicki C., et al. eds. Constitutionalism and Judicial Review. New Haven,
Defining the Field of Comparative Constitutional Law. Connecticut:Yale University Press, 2001.
Westport, Connecticut: Praeger, 2002.
Siegan, Bernard H.
Kaplin,William A. Drafting a Constitution for a Nation or Republic
American Constitutional Law: An Overview, Emerging Into Freedom, 2nd edition. Fairfax,
Analysis, and Synthesis. Durham, North Carolina: Virginia: George Mason University Press, 1994.
Carolina Academic Press, 2004.
Sunstein, Cass R.
Knock,Thomas, J. Designing Democracy: What Constitutions Do.
To End All Wars: Woodrow Wilson and the Quest New York: Oxford University Press, 2001.
for a New World Order. Oxford: Oxford University
Press, 1992. Teitel, Ruti G.
Transitional Justice. Oxford ; New York:
Levin, Daniel Lessard. Oxford University Press, 2000.
Representing Popular Sovereignty: The Constitution in
American Political Culture. Albany: State University
of New York Press, 1999.

McHugh, James T.
Comparative Constitutional Traditions.
New York: Lang, Peter Publishing, 2002.

McNelly,Theodore.
The Origins of Japans Democratic Constitution.
Lanham, Maryland: University Press of America,
2000.

Powell, Jefferson. A.
Community Built on Words:The Constitution
in History and Politics. Chicago : University
of Chicago Press, 2002.

Quinn, Frederick.
Democracy At Dawn: Notes From Poland and Points
East. College Station,Texas:Texas A&M University
Press, 1998.

Issues of Democracy, IIP Electronic Journals, Vol. 9, No. 1, March 2004

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I n t e r n e t S i t e s

Internet Sites on Constitutionalism

Internet resources were active as of March, Comparative Constitutional Law Guide


2004.The U.S. Department of State does not http://www.ll.georgetown.edu/intl/guides/
take responsibility for those websites whose compcon/print.html
addresses have changed and/or websites now
Created by the Georgetown University
displaying inappropriate material.
Law Library.

ABA: Central European and Eurasian Comparing Constitutions and International Con-
Law Initiative stitutional Law, A Primer
http://www.abanet.org/ceeli/home.html http://www.oefre.unibe.ch/law/icl/compcons.html
American Bar Association public service project to
advance rule of law by supporting the legal reform
The Constitution Finder
process in Eastern Europe and the New Indepen-
http://confinder.richmond.edu/
dent States of the former Soviet Union.
Links to the constitutions of most nations, in
a variety of languages and in English.
Charters of Freedom
http://www.archives.gov/national_archives_
experience/constitution.html The Constitution of the United States
http://www.law.emory.edu/FEDERAL/usconst.html
Online exhibit of the U.S. Constitution,
http://www.thisnation.com/constitution.html
presented by the U.S. National Archives.

Constitutional Law: An Overview


http://www.law.cornell.edu/topics/
constitutional.html

Descriptive essay of constitutional law with links


to U.S. laws and other sources.

40
Constitutional & Legal Policy Institute (COLPI) Selected U.S. Law Schools
http://www.osi.hu/colpi/indexe.htm

COLPI supports democratic legal reform in the Columbia University


countries of Eastern Europe, Central Asia, and http://www.lawschool.columbia.edu
Mongolia.
Cornell University
http://www.lawschool.cornell.edu
International Journal of
Constitutional Law Harvard University
http://www3.oup.co.uk/jnls/list/ijclaw/ http://www.law.harvard.edu
default.html
New York University
Established in 2003, presents current legal
http://www.law.nyu.edu
scholarship from the international community.
Stanford University
The National Constitution Center in Philadelphia http://www.law.stanford.edu
http://www.constitutioncenter.org University of Chicago
A new museum in Philadelphia explaining the http://www.law.uchicago.edu
Constitution, encouraging citizen participation
University of MichiganAnn Arbor
and providing educational resources.
http://www.law.umich.edu

Researching Constitutional Law on the Internet University of Pennsylvania


http://www.lib.uchicago.edu/~llou/conlaw.html http://www.law. upenn.edu

A comprehensive Web-based bibliography University of Virginia


http://www.law.virginia.edu

U.S. Constitution Online Yale University


http://www.usconstitution.net/ http://www.law.yale.edu

Designed for use by high school debate students.

U. S. Institute of Peace: Constitution-Making


Web Links
http://www.usip.org/library/topics/constitution.html

These links complement the Institutes Rule of Law


Program and its project on Constitution-Making,
Peacebuilding, and National Reconciliation.

Issues of Democracy, IIP Electronic Journals, Vol. 9, No. 1, March 2004

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E L E C T R O N I C J O U R N A L S O F T H E U. S. D E P A R T M E N T O F S T A T E

i s s u e s o f
Democracy

C O N S T I TUT I ONA L I S M
AND
E M E RG I N G
DEMOCRACIES
M A R C H 2 0 0 4
V O L U M E
9 N U M B E R
1