2011/11/09

Help countries write new constitutions?

This is a comment to an article on the Comparative Constitutions blog.



It is correct that few Americans or other Westerners are skilled at constitution writing. Indeed, looking at the amendments to the U.S. Constitution, proposed and adopted, since the first ten, it seems we have not had anyone competent since James Madison, and with the benefit of hindsight we can find some flaws in his work as well. We can also discern that much of the incompetence that got into earlier proposals was due to political influence.

It is also correct that our suggestions to drafters in these countries may not receive our suggestions well, or even understand them. However, since they seem to take much of what they do from our models, which they often don't understand (nor do we), it may be of some value to try to explain our own models, and let them take from that what they will.

However, Nathan Brown's article seems to suggest that the principles of constitutional design are more a matter of political culture and taste than they are. Despite differences in political or legal culture, the natural restrictions on constitutional designs that can actually work in the long run are more severe than he seems to think. I find those principles of design to be dictated not just by human nature, but would be similarly constrained for any broadly human-like species, anywhere in the Universe.

Even if they do not listen to our suggestions, it is worth making them if only to discuss among ourselves, as a way to learn better how to do this kind of thing. If some of them happen to listen and and learn something, that is all well and good.

Much can be learned by examining constitutions for how they have applied similar design principles, how they have deviated from those principles, and how that worked out. I find the recent attempt to forge a "constitution" for the European Union to be particularly instructive for how not to do it.

There are a few principles I would urge:

1. Keep out all the aspirational crap. A constitution is a law, not a political manifesto. It should stick to specifications of structures, procedures, rights, powers, and duties, and strike the right balance between specificity and coverage of every contingency that can be anticipated.

2. The main purpose of a constitution is to protect rights, and everything needs to lead to that. A well designed constitution will try to anticipate all the ways rights can be violated and provide remedies for each of them.

3. A constitution must never mandate the expenditure of a sufficient amount of any scarce resource. It must be realizable even when there is nothing to share and nothing except the efforts of unpaid volunteers to carry out its provisions.

4. Power needs to be divided in a way that allows for checks and balances, but which does not prevent action when action is urgent. That is tough, but it can be done. Generally, those to be checked should not have a hand in selecting those who must check them.

5. The key to republican government is not equal representation. There will never be equal representation. The key is deliberation, with equal opportunity to have one's concerns deliberated upon. It is, however, a good idea to create veto blocks against actions that may disadvantage individuals or minorities. That is one of the functions of courts.

6. Have as much of government done at the local level as possible without producing fragmentation. Local juries or shura should be an important part of any sound design.

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