Baghdad, Tokyo, Kabul ...: constitution making in occupied states.

• Author: Elkins, Zachary

INTRODUCTION

On October 15, 2005, Iraqis voted in overwhelming numbers to adopt a new constitution. (1) Although all hoped that the new document would mark a political settlement, the new constitutional structure has not been able to ameliorate, and may even have exacerbated, a problem of instability and political disintegration. At the very least, the constitution of Iraq--drafted under the Iraqi Governing Council of the occupying Coalition Provisional Authority (2)--has not produced a political reconstruction of the society. (3)

As Baghdad burned, several thousand miles away a nationalist politician named Shinzo Abe prepared to assume the position of Prime Minister of Japan. (4) Abe's platform rested largely on a more aggressive foreign policy and a revision of the "Peace" Constitution of 1947. (5) Drafted largely by American occupying authorities in little more than a week in 1946, that constitution has provided a stable basis for Japan's phenomenal economic growth and political reconstruction as an industrial democracy. It has never been amended and this year will become, by our reckoning, the most stable written constitution in history. (6)

These two contrasting experiences prompt examination of the phenomenon of occupation constitutions--constitutions drafted or adopted in the extreme condition of one state having explicit sovereign power over another. (7) One may suppose that such constitutions would reflect, if not reproduce in toto, the constitutional tradition of the occupier, exemplifying what Professor Feldman calls "imposed constitutionalism." (8) A closer look at the process, however, suggests that even in cases of seemingly unilateral imposition, such as Japan, domestic input or negotiation may very well play a nontrivial role. Indeed, the form of the Japanese constitution--one that preserves a role for the emperor in a parliamentary system (9)--suggests that MacArthur's team was less interested in exporting U.S. institutions per se than in adapting a set of workable institutions, of whatever flavor, that fit local conditions. Similarly, the Iraqi Constitution, although written with substantial assistance by the U.S. government, (10) departs in significant ways from basic tenets of American constitutional belief. (11)

These cases raise basic empirical questions. For one, how many episodes of occupation result in a new constitution for the occupied state? Second, to what degree do such documents reflect the political principles and institutions of the occupying power? We are in a unique position to answer these questions, having compiled a dataset on both the constitutional chronology of states (i.e., dates of constitutional change) and the content of constitutions. (12) The answers to these questions inform us about the degree of imposition reflected in political reconstruction under occupations. They lead inevitably, however, to other questions concerning the performance and fate of occupation constitutions. When do such constitutions accomplish their goals? When do they not? What elements of local adaptation are necessary for institutions to work? Why do some occupation constitutions endure while others fail? As a group, are occupation constitutions at higher risk of replacement or revision than other constitutions?

This Essay proceeds by defining the universe of occupations since 1816 and identifying the set of constitutions written under these circumstances. Part II then analyzes the forty-two instances of constitutions adopted under occupation or shortly thereafter. Part III discusses the conditions under which occupation authorities seek to use constitutions to facilitate political reconstruction, as opposed to other methods. This Part next examines the content of these constitutions and evaluates their similarity to those of the occupying power. Finally, it explores the determinants of "successful" (or at least durable) occupation constitutions, and argues that a key factor is that the constitution be self-enforcing in the game-theoretical sense. (13) The evidence suggests that self-enforcement is indeed a crucial quality.

The closing section returns to Tokyo and Baghdad. The Essay examines those two cases in some depth, in part because there is significant evidence that U.S. policymakers drew on the post-World War II experience of political reconstruction in Germany and Japan for inspiration in planning the post-Saddam Iraq, even though the results could not have been more different. Japanese success and Iraqi struggles, it turns out, cannot be ascribed to different motives on the part of the occupiers. Rather, general findings from the broad set of cases help one to understand the contrast between the two case studies. A careful accounting of constitution making in Japan marks it clearly as an exceptional case, but one with general lessons for understanding constitutional stability.

1. THE PROBLEMS OF POLITICAL RECONSTRUCTION AND THE ROLE OF CONSTITUTIONS

   Every happy family, began Leo Tolstoy in Anna Karenina, is happy in the same way, whereas every unhappy family is unhappy in its own unique way. (14) In the case of occupation constitutions, the story often ends in one of many possible unhappy ways, but there are a few success stories in which an occupation constitution leads to the birth of a stable democratic polity. Although there may be differences in form, the community of democratic nations shares certain core characteristics, which are largely represented in written constitutions. Thus, the happy story is already written but too rarely realized.

   To achieve this end, a constitutional scheme must deal with certain universal problems of political reconstruction. First, the crimes, or even philosophical differences, of the old regime must be reconciled, either explicitly or implicitly, with the repudiating approach of the new regime. (15) These differences can be dealt with through purges, criminal trials, truth and reconciliation commissions, (16) or simply ignored, depending on the relative power of the remaining elite. Second, a corollary is that, unless totally defeated, the remnants of the past must be brought into the political process. There will always be some elements that were part of the state during the ancien regime, even if they were not committed to a particular leadership or governance structure. (17) Even autocrats rule with the implicit consent of many of the governed, if not always a majority. (18) What becomes important, then, is the question of how to offer the passive supporters of the old regime a combination of carrots and sticks to bring them into the fold and ensure that they do not act as spoilers for the new regime. Third, there is a need to ensure that the bargains that establish democracy endure over time.

   To understand how constitutions can potentially resolve these problems and create an enduring basis for political order, this Essay follows recent work on self-enforcing constitutions. (19) Any constitutional agreement, whether in a dictatorship or democracy, involves an agreement among powerful forces in the society. (20) Unlike ordinary contracts, however, constitutional agreements have no external guarantor to enforce the terms, independent of the parties. (21) To endure, constitutions must be self-enforcing, meaning they must give rise to an equilibrium from which no party has an incentive to deviate. (22) Even though constitutions may produce relative winners and relative losers, they will endure to the extent that the losers believe they are better off within the constitutional bargain than in taking a chance on negotiating a new one. (23)

   What happens when a party to the constitutional bargain seeks to violate the terms of the agreement? One can conceive of violations occurring either because winners seek to enhance their power beyond the original bargain, or because relative losers seek to overturn the bargain to negotiate or impose a better deal. (24) When such violations occur, the enforcement mechanism of constitutions comes into play.

   Enforcement in democracies ultimately relies on citizens or at least a broad group of elites. (25) Any such group, however, faces enormous collective action problems in enforcing the constitution. That is, all citizens may be better off acting collectively to confront government transgressions, but no individual citizen has the incentive to take the risky step of doing so alone. (26) If only some citizens challenge the government, their efforts are likely to be in vain. Given acquiescence on the part of others, the individual costs of challenging the sovereign are exorbitant (often the price will include loss of life or liberty). Moreover, because citizens have heterogeneous preferences and imperfect information about others' preferences, it may be the case in reality that they cannot coordinate to agree on when a violation has occurred and what steps to take. (27) Political acquiescence is required for every constitutional violation to succeed and acquiescence is the expected outcome, given the collective action problems citizens face. (28) Accordingly, citizens need to coordinate their behavior to ensure that enforcement is effective.

   Written constitutions can solve the collective action problem among citizens by serving as a useful coordination device. (29) They allow actors to anticipate actions of others by providing focal points--a common understanding of what constitutes a constitutional violation--for enforcement. (30) In turn, a widely held expectation of strict enforcement can prevent parties from violating the bargain in the first place, ensuring constitutional self-enforcement. (31) This framework helps us understand why effective constitutional democracy is so rare in general: punishing transgressions by political leaders is extremely difficult. (32) It also helps us to understand, however, why written constitutions are important components of constitutional democracy: they...