USIP
Constitution Making: Tradition and Innovation
Thu Aug 7 04:46:27 2003
64.140.158.3

Constitution Making: Tradition and Innovation
http://www.usip.org/pubs/specialreports/sr107.html

We live in an era of constitution making. Of close to 200 national constitutions in existence today, more than half have been written or re-written in the last quarter century. Constitution making has become a part of many peace processes. New nations and radically new regimes, seeking the democratic credentials that are often a condition for recognition by other nations and by international political, financial, aid, and trade organizations, make writing a constitution a priority. In many cases, both the ways in which constitutions are written and the ideas of sovereignty, citizenship, and rights that are embodied in these foundational documents depart radically from the tradition epitomized by the United States Constitution.

In 1787, the new United States of America was the originator and model of traditional constitution making by a hand-picked elite group, and of the constitution as marking a settlement of conflict and inaugurating a new regime of powers and rights. Mainstream scholarship has generally presented the American Constitution as the fixed outcome of a period of nation building and constitution making. Admirers, offering this as an example for others, tend to want to duplicate its perceived virtues: constitution making as an "act of completion," the constitution as a final settlement or social contract in which basic political definitions, principles, and processes are agreed, as is a commitment to abide by them.

Constitution makers today still confront the problem posed by Alexander Hamilton in 1787, of whether "societies . . . are really capable or not of establishing good government from reflection or choice, or whether they are forever destined to depend for their political constitutions on accident and force." The makers of "new" constitutions do not seek to throw the entire tradition onto the scrap heap. Constitutions remain higher law, specify the institutions of governance, define the rights, duties, and relationships of state and citizens, and set the tone or establish the identity of the nation-state. Onto this traditional foundation, however, today's framers seek to build new practices. Recent constitution-making processes have been accompanied by massive efforts to involve the public before, during, and after the text is finalized. Examples of new practice include: prior agreement on broad principles as a first phase of constitution making; an interim constitution to create space for longer term democratic deliberation; civic education and media campaigns; the creation and guarantee of channels of communication, right down to local discussion forums; elections for constitution-making assemblies; open drafting committees aspiring to transparency of decision making; and approval by various combinations of representative legislatures, courts, and referendums.

There is no simple transition to a new constitutionalism. Control of the process and of the ultimate distribution of power is at stake and participatory constitution making remains highly controversial. Constitution making has not been made easier, and by no means all of these innovations, nor of the constitutions that result, have been successful. But the process does move incrementally closer to the needs of the present day.

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Constitution Making for the 21st Century

Alexander Hamilton's still-open question remains central to prospects for a peaceful and democratic world. In the 21st century, proof of our capacity for living together and sharing in good government is not only ever more urgently needed but also requires—and is generating—creative thinking about the making and content of present-day "political constitutions." Constitutional experimentation in many new and newly democratic nations challenges older constitutional democracies to rethink their own practice and to engage in a process of mutual learning about the contribution of constitution making to conflict transformation and sustainable peace.

A nation confident in a stable future of internal harmony and agreed purpose is not (if it ever was) the typical site of constitution making today. A changed world calls the utility of the traditional model of the constitution into question. Consider how high a bar that traditional model of an act of completion sets to establishing and legitimating constitutions in situations of conflict. Yet making a traditional constitution is seen by many as essential to the establishment of post-conflict governance by providing a framework to manage diversity and ensure stability.

The late 20th century has seen nations, old and young, that are deeply divided, often to the point of violence. Nation-states, defined by established boundaries and the sole possession of sovereignty, have been challenged from inside by claims for self-determination or secession, and from without by the proliferation of transnational political or economic treaties and powers with global reach. At the same time, successful economic and social development have been declared, as in the 1993 Vienna Declaration of the United Nations that now frames development and human rights policy, to go hand in hand with democratization. Meanwhile around the world many marginalized groups—indigenous peoples; the poor; racial, ethnic, and language identity groups; and, cutting across all social categories, women—have demanded inclusion, political participation, and power sharing.

Conflicts over the identities, powers, and rights of groups seem almost endemic, and, as such conflicts reproduce themselves in the form of new identities and claims, are likely to be a permanent feature of 21st century polities. The nature of many modern conflicts makes a final resolution hard to reach. In such circumstances, finding a way of living together within major disagreement is the more modest goal. Traditional constitution making as a conclusion of conflict and codification of a settlement that intends permanence and stability can seem to threaten rather than reassure. Citizens who actively reject a final act of closure seek instead assurances that constitution making will not freeze the present distribution of power into place for the long term, nor exclude the possibility of new participants and different outcomes.

To imagine a constitutional settlement under which diverse and disagreeing groups can live, while continuing to engage in a freely accessible debate about that settlement itself, is a challenging proposition. The tension between the security and stability offered by the traditional ideal of constitutionalism and the flexibility called for by new circumstances is what places process at the heart of the new constitutionalism. A permanently open process must itself satisfy qualitative standards that were previously applied only to the outcome of constitution making. We used to think of a constitution as a contract, negotiated by appropriate representatives, concluded, signed, and observed. The constitution of new constitutionalism is, in contrast, a conversation, conducted by all concerned, open to new entrants and issues, seeking a workable formula that will be sustainable rather than assuredly stable.

It is in such an environment of conversational constitutionalism that the issue (startling to some traditionalists) of a right to participate in making a constitution has arisen. The idea is hotly contested by those who argue that only elites in modern societies possess the moderation, technical expertise, negotiating skills, ability to maintain confidentiality, and above all rational incentives to compromise so as to maintain power that make for effective constitution making. But it is hard to argue against democracy. The elite-made constitution, according to the new paradigm, will lack the crucial cultural element of legitimacy. It will do so because the process, not just the final text, is seen as flawed.

A democratic constitution is no longer simply one that establishes democratic governance. It is also a constitution that is made in a democratic process. There is thus a moral claim to participation, according to the norms of democracy. A claim of necessity for participation is based on the belief that without the general sense of "ownership" that comes from sharing authorship, today's public will not understand, respect, support, and live within the constraints of constitutional government. Whether there is also a legal right to participate, for whom, and what all of this means in practical terms, are also key issues for modern constitutionalism, whose reputation and effectiveness depend upon democracy in its process as well as its outcome. Experiments with public participation in the process of making constitutions are a striking feature of "new constitutionalism." It is with such issues of process that this report is concerned.

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The Importance of Process

How the constitution is made, as well as what it says, matters. One of the most striking innovations in the constitution-making practice of recent decades is that norms of democratic procedure, transparency, and accountability that are applied to daily political decision making are now also demanded for constitutional deliberations. Is this window dressing with democratic rhetoric, or can new ideas and practices make a difference? A study in contrasts in North American constitutionalism illustrates the radical changes in attitude to constitution making involved.

No one would expect an 18th century process to match the standards of the 21st century. Nor would anyone describe the making of the American Constitution in 1787 as a democratic exemplar for today. Yet constitution making in the United States offers an important lesson. Scholars have recently reflected on Article V of the U.S. Constitution, the provision for constitutional amendment, as an admission by the framers of the likely imperfection of the Constitution and a permission to work within its frame to adjust its terms (see especially Sanford Levinson's edited volume, Responding to Imperfection, published in 1995). Yet the limitations of the amending process are considerable. The fact that the wishes and needs of indigenous peoples and African Americans were originally considered irrelevant, and that those of women were considered to be represented by men, left the American polity with long-term problems. When newly assertive groups eventually demanded recognition, finding solutions was hampered by the necessity of acting within the constitutional framework, drafting amendments and litigation according to a text set apart, a foundational document outside the bounds of regular politics. The Constitution is subject to special and especially difficult procedures for amendment and the language of constitutional law is arcane. Thus even the first step for excluded groups, entry to the constitutional debate, has never been easy. Gaining each amendment or new interpretation has typically involved a decades-long struggle for piecemeal reform.

Facing a similar upsurge of claims for constitutional recognition, Canada has taken a significant step towards opening the constitutional settlement to full democratic discussion. No less a body than the Canadian Supreme Court has endorsed democratic process, in its advice on the constitutional position of a potential act of secession by the province of Quebec. The Court's 1998 decision regarding the Reference re Secession of Quebec defined democracy as a core Canadian constitutional principle. This meant, the court declared, "that a functioning democracy required a continuous process of discussion." The court noted further that "no one has a monopoly on truth," a fact implying a duty to listen to "dissenting voices" and to seek "to acknowledge and address those voices," even when the most basic unity of the nation was at stake. The Canadian Constitution, the court concluded, "gives expression to this principle [of democracy] by conferring a right to initiate constitutional change on each participant" and imposing "a corresponding duty . . . to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change." The Canadian Supreme Court decision is a summation of new constitutionalism, of constitution making as a process rather than a once-and-for-all defining moment, and of democratic re-negotiation as the heart of a politics of recognition and inclusion. The Canadian Constitution is defined as a forum for a historically continuous discussion of the identity of the Canadian nation.

In other words, participatory constitution making has become one criterion of a legitimate process. Where the premise of constitutionalism as conversation is taken on board, constitution making can no longer be confined exclusively to the domain of "high politics" and negotiations among elites who draft texts behind closed doors. In the context of a traditional constitution, presumed to stand above and to structure democratic politics, the extension of democratic process to include free, open, and responsive discussion of the constitutional settlement itself represents a radical departure, but one that attempts to overcome the problems of entry of new participants and of an equal voice for all concerned regardless of their expertise.

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