Constitution making at the edges of constitutional order.

• Author: Soltan, Karol Edward

INTRODUCTION

This Essay is a report from the battlefront. The battle is between the forces of the constitution, a moderate form of politics, and the politics based on the barrel of the gun. But the Essay is not about what goes on at the front. It is more about how we should change our thinking at headquarters to make the battle easier to fight.

It is an effort to reformulate our way of thinking about constitutions and about what we do with constitutions, notably making them, to serve the goals of constitutionalism not only in safe and happy places (the "headquarters"), but also at the battlefront, where the risk of war or other forms of conflict is substantial. This includes both post-war, or post-conflict, situations and pre-war, or pre-conflict conflict situations. (1) It is what I refer to as the edges of the constitutional order. It is where some form of state of emergency is either at hand or is a looming possibility.

The state of emergency of the kind we constitutionalists, and moderates, should care about is not the one that so preoccupied Carl Schmitt; it is not a situation where the very survival of a state is at risk. (2) As Czechoslovakia was breaking up, the survival of that state was certainly at risk because it did not survive, but we were nowhere close to the edges of constitutional order. There was no risk of war, nor of a regime that would rely much more on coercion and threat. Whatever the wisdom of the split, there was no constitutionalist problem. A state of emergency arises, rather, when the very survival of constitutional order is at risk. When that happens we might need to sacrifice a state or two without shedding a constitutionalist tear.

We inherit from the eighteenth century two forms of constitutionalist catechism, (3) one French and the other American. They are moderately different in content, and very different in style. The French version, embodied in The Declaration of the Rights of Man and Citizen, (4) is in the form of briefly stated principles officially adopted at the start of constitution making. The American version, which we now know as The Federalist, (5) is a set of essays making the argument in favor of the constitution after it has been proposed. (6)

Our current stage of modernity, which is different from what earlier counted as modern, but not postmodern either, is in need both of such catechisms, and of larger theories that back them up. The catechisms of the eighteenth century emerged from the battle lines of the constitutional order of that period. What emerges from the battle lines today should be a substantial modification, as well as strengthening and generalization, of the constitutional catechisms inherited from the eighteenth century. Repetition is not the best form of building on the past. So this Essay, and the book project of which it is a part, is my effort to build on the work of Madison and Hamilton, Sieyes and Condorcet, and Kollataj and Potocki without necessarily retaining a great deal of what they actually said.

Over the last decade the international community has given much attention to the problems of constitution making in fragile states, in quasi-states, for territories in which the state has collapsed, or for territories that have never been properly governed by a state. To get a feel for the diversity of this problem, consider three examples: East Timor, from the withdrawal of Indonesian authorities in 1999 until its full independence; (7) Iraq today; (8) and the European Union since the Treaty of Maastricht or perhaps the Treaty of Nice. (9)

I was directly involved in East Timor and Iraq, and I think I have learned something from this experience. I have become convinced that among the chief problems facing us in such situations are not just the obvious: the interests of the powerful have to be accommodated, or else nothing happens. And when they are accommodated, the result may not be as attractive or as effective as we might wish--long term prospects of democracy, peace, and human rights might suffer. Interests are often a problem, but so are some broadly shared ideas relevant to constitution making in fragile states, which often do not seem to serve anyone's interests. To fight those ideas we need to shift from the immediate concerns with the crises often associated with fragile states to a discussion at a higher level of abstraction. And we need to look beyond law narrowly construed.

1. THE PHILADELPHIA MODEL AND ITS FALLACIES

   Our conception of constitution making is dominated by images of the hot summer in Philadelphia at the Constitutional Convention of 1787, combined in some cases with those from another summer during the French Revolution only two years later in Paris. Even Giscard d'Estaing, of all people, daydreamed of Philadelphia and Paris while sitting at the podium when he presided over the Convention on the Future of Europe. (10) In 2002 he wrote:

   Souvent, de l'estrade ou je preside ... je me dis que le spectacle qui se deroule devant mes yeux n'est pas tellement different de celui que David a depeint dans la salle du Jeu de paume, lors du serment fameux, ou de celui qui a pris place, de mai a septembre 1787, dans le hall de l'Independence de Philadelphie. (11) Let us call this the Philadelphia model, even if it does not correspond perfectly to what actually happened in Philadelphia. According to this model a constitution is the supreme law of a state, and we make a constitution when we write it and adopt it in accordance with proper and legitimate procedures. And in a fragile state one task of the constitution is to make the state less fragile, as in Philadelphia where the Framers of the American Constitution replaced a loose and unworkable confederation with a federal state. The Philadelphia model suggests that this is how constitution making in fragile states should proceed. This model, however, is wrong in just about every way. It is wrong about what a constitution is, wrong about how to make constitutions, and wrong again about the desirable result of constitution making.

   The first claim of the Philadelphia model is that a constitution is the supreme law of a state. That may well describe the U.S. Constitution, and perhaps Stalin's constitution for the USSR, but it does not accurately describe the British constitution. The description is problematic because Stalin's constitution was not a constitution, whereas the British constitution is. Certainly that is what one must believe in order to distinguish reality from fiction and propaganda. The risk we take by defining a constitution as the supreme law of a state is that we will take institutional Potemkin villages as real. Because there is a document formally recognized as the highest law, it is tempting to conclude that it must be a constitution even if it is universally ignored. Conversely, we may take as unreal constitutions that are not so easy to identify even if they are real, in the manner of the British constitution.

   Taking Potemkin villages seriously may seem harmless enough, but it is not. The goal of constitutions is to achieve peace, democracy, and protection of human rights. A document that only says it guarantees all these things is not really a good substitute.

   The world is full of institutional Potemkin villages. States that are recognized by other states in the international system, but are lacking both firepower and legitimacy, are really states in name only. Other examples of Potemkin villages are property systems that exist on paper only, while real economic life consists of efforts to bypass them, and constitutions that serve as manifestos or false advertising, but have otherwise no relationship to reality.

   Part of the problem in these cases is that our concepts and theories reflect a division of labor, intellectual and professional, which has evolved in wealthy democratic countries, relatively well protected from violence, and with strong commitments to democracy and the rule of law. Lawyers study law and legal institutions, whereas economists study markets. The easiest thing to do when we try to help poor countries with fragile states, often on the brink of or in the midst of civil war, is simply this: we transfer to the poor country with a fragile state what works in the rich country with an effective state, supported by concepts and theories developed in that context. But this does not work, at least not often and not well. It produces institutions that are Potemkin villages--all appearance and no substance. Not just constitutions, but entire legal systems, are largely fictitious because they are a combination of laws that are too rigid, largely ignored, and in a world that operates independent of law. So this is a larger problem not limited to constitutions. But my objective is to demonstrate how to think about constitutions in a way that will keep us from contributing to the construction of these Potemkin villages.

   So let me suggest an alternative way of thinking about constitutions: they are commitments, and they are constitutions only to the degree they are serious commitments. Hence the popularity in discussions of constitutions and constitutionalism of the imagery of Ulysses binding himself to the mast in order to hear the Sirens and survive the experience, (12) or the frequent repetition of the slogan that in constitutions the people sober restrain the people drunk. (13) We make a commitment to something when we make changing our minds more difficult than it would otherwise be. Without that element, there is no constitution; it is all fiction and mirage. To make a constitution is to make a certain kind of commitment. The key questions are: to what are constitutions commitments, and what form do these commitments take?

   Let me suggest an answer which is I believe both faithful to the constitutionalist tradition and practical in difficult situations, such as fragile states. In a one sentence summary: they are commitments to a...