Quintessential elements of meaningful constitutions in post-conflict states.

• Author: Van Alstyne, William W.

quintessence, n. In ancient and medieval philosophy, the fifth and highest essence after the four elements of earth, air, fire, and water, thought to be the substance of heavenly bodies and latent in all things. (1)

INTRODUCTION

The overall topic of this symposium is "Constitutional Drafting in Post-Conflict States." Given the extent to which there has been such a seismic shake up of various states within the past two decades, the subject for our consideration would seem to be exquisitely timely. Given the uncertainty of what may yet emerge from the internecine violence still raging in places such as Iraq in the brutalizing aftermath of the dismantled Saddam Hussein regime, or from the ongoing strife even now still savaging Somalia, the broken state of Congo, or Robert Mugabe's cruel regime in Zimbabwe and the apparently kleptocratic government in Nigeria, however, one may well insist that our symposium may also be somewhat premature. Although one would surely want to be of "constitutional drafting" help, quite obviously none of these states are, as yet, genuinely post-conflict states. Accordingly, it is surely hard to speak with any confidence on the kind of constitutions one might most sensibly consider with conditions such as they are in these chaotic states.

Leaving these places to one side (on the understanding that none of these places possesses sufficient stability to fit the definition of a post-conflict state to qualify for anything beyond the most minimum suggestions (2)), on the other hand, even if one widens one's view to take in the dissolution of the former Soviet Union, from which nearly all of its fifteen formerly integrated "republics" exited since 1989, or widens it again to include the five states newly formed from former Yugoslavia, or the two from the cleaving of Czechoslovakia into Czech and Slovak national states in 1993 (3)--to name just some few new "post-conflict" states--it is still not obvious what one's own best intuitions can usefully yield regarding the sorts of things suitable to be inscribed in the constitutions of such recently sundered places as these. Most of these newly born (or reborn) states have already settled such questions for themselves, whether for the better or otherwise. Whether that is wholly true, it is in any event far from obvious how rank outsiders, remote from the local circumstances of each of these places, can be of responsible service in providing advice. Moreover, it is a task from which I might well be personally excused in any event, mindful both of the chastening observations Mark Tushnet provides in his separate article in this symposium cautioning one against undue pontificating on matters such as these outside one's normal range, (4) as well as mindful of the superior credentials possessed by scholars such as Donald Horowitz (whose own contribution also appears in this symposium (5)), which qualify them to speak with an authority I cannot claim.

Even so, allowing for all of this, granted that one should be aware of one's limitations, and granted also that one ought to be very wary of overgeneralizing, (6) perhaps it is nonetheless possible that some brief canvassing of constitutions in other "post-conflict states," including our own, may nevertheless yield some useful observations to share. In just this last regard, lest the oldest of all of these (namely, our own Constitution) be prematurely put to one side as highly unlikely to be useful in these discussions in thinking about today's world, still, it is useful to note, if just in passing, that it happens to fit squarely within the qualifying description of a "post-conflict" constitution, i.e., a constitution drawn up in the aftermath of revolution and war. In other words, like a large number of other "post-conflict" documents of much more recent times--such as the Constitution of the Soviet Union with its own first "post-conflict" version in 1918, carried through three subsequent editions until the national collapse in 1989, (7) or that of the People's Republic of China (1982), (8) or that of postwar Germany (1949), (9) or that of postwar Japan (1946) (10)--our own more aged Constitution is itself very much a "post-conflict" document, such as it is. To be sure, it was negotiated with far fewer preexisting models from which to draw in working out its design than now exist. (11) Even so, even allowing for all of that, are there any lessons to be learned here? I think there are, at least a few.

I.

Its first enacted version, the original constitution (The Articles of Confederation (1781)), insisted in its very Preamble that what the thirteen "post-conflict" states sought in its promulgation was not some merely loose relationship. Much less was it claimed to be a relationship of a merely provisional or temporary sort. To the contrary, the Preamble pointedly declared that these Articles meant to provide for a "Perpetual Union," thereafter to be known (even as it still is) as "The United States of America." (12) That document--our own original, written, post-conflict constitution--was never even once amended. (13) But, as we know, on the other hand, neither did it last. Rather, despite its vaunted claim of providing an enduring charter of perpetual union, the Articles began nearly at once to fall apart and indeed were abandoned quite unceremoniously in a practical manner of speaking, to be succeeded by the provisions of the Constitution drafted de novo in a single sweltering Philadelphia summer session in 1787, in a successor document declaring itself to be the new supreme law (in lieu of the original Articles of perpetual union), once conventions in even a mere nine states might meet and ratify its various provisions, as, indeed, occurred within the very next year. (14)

But even with this second beginning as it was--a second beginning further fortified nearly at once by certain, critically added amendments that were proposed by the First Congress to assemble under its auspices in 1789 (followed promptly by ample state ratifications sufficient to install nearly all of them--ten of twelve--into the Constitution), the newer and far grander edifice nonetheless also came within a hair's breadth of crashing to pieces within mere decades of its own original entrenchment. The irony of the event--and the lessons to be learned from it--are perhaps all the more instructive, moreover, insofar as the defects contributing to the crash this time around were quite the opposite of the kind of defects accounting for the problems that had beset the first installment of the Constitution (the Articles of Confederation). That is, they were not the consequence of what had been left out by way of adequate provision to establish the nation but instead, the consequence of what had expressly been put in.

Those expressly included provisions are far too well known to require review in extended comment here, but, briefly, they were those that effectively tipped the scales of national power, committing disproportionate control of national political power and of national policy into the hands of states with slavery on their minds, (15) as well as other provisions that substantially aided and abetted the institution itself, (16) albeit in shrouded locutions (not using words such as "slavery" or "slaves")--clauses effectively abandoned only with forcible enactment of a trilogy of amendments: the 13th in 1865, the 14th in 1868, and the 15th in 1870, following an horrendous Civil War (1860-1865). All of this being so and looking back on all of this in a mere flash, it is certainly accurate to describe "The" Constitution of the United States as a telling example of "constitution drafting in a 'post-conflict state'" (17) and perhaps, therefore, also itself a study that may provide some insight into the pitfalls one is likely to encounter in drafting constitutions in each of two critical respects: what may be important to put into them (18) and equally, on the other hand, what may be just as important not to include. (19)

II.

"Constitution drafting" is also merely the art of the possible, however, and perhaps never more so than when undertaken in the immediate aftermath of great crises characteristic of post-conflict states. And it will sometimes be obvious that, despite one's well-founded misgivings respecting the kinds of things we have just now reviewed, in order to construct (or reconstruct) a constitution with provisions minimally satisfactory to all parties without whose willingness to subscribe to it in the fractious circumstances of its proposal the enterprise itself may be doomed, there will be "accommodations" believed to be essential to make, and they probably will include a number of merely concessionary clauses--clauses that ought not have been necessary but nonetheless seemed to be required and so become an encysted part of the resulting document, such as it was.

Even so, contingent on one other consideration, namely, what the document provides respecting how, by whom, when, and in what degree those provisions--or any other provisions--may be subsequently altered in due course, this consideration may appropriately weigh less heavily in judging the document as a whole. The "trick" here, quite obviously, is how to find the proper balance, such that subsequent constitutional alteration (whether minor or major) is made neither so easy on the one hand, that, like the Constitution of California, (20) its provisions may be just readily put at risk...