lectronic ournals of theu. s. d tat e … · ularly honored to include remarks by a sitting justice...

D e m o c r a c yi s s u e s o fE L E C T R O N I C J O U R N A L S O F T H E U . S . D E P A R T M E N T O F S T A T E

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V O L U M E 9 N U M B E R 1

C O N S T I T U T I O N A L I S MA N D

E M E R G I N GD E M O C R A C I E S

TH E S E N S E O F anticipation is palpableamong delegates to the constitutional assembly.Dignitaries, average citizens, academics, reli-gious scholars and community leaders—manyelected by their respective constituencies to rep-resent them—gathered for what is an historicoccasion. Consensus is reached on the structureof government and a constitution guaranteeing,among other things, rights for all, freedom ofreligion, and an independent judiciary. Pen is put to paper, signatures are collected, and a simple document becomes a beacon of hope in a land once tyrannized. The setting is notPhiladelphia 1787 or Warsaw 1791; this isAfghanistan 2003 as Pashtuns, Tajiks, Hazaras,Uzbeks, and others representing the breadth ofAfghanistan’s diverse society, convene a LoyaJirga to agree on a new constitution.

But even this watershed in constitutional-ism is not the most recent. When members ofthe Iraqi Governing Council signed the Transi-tional Administrative Law, establishing a legalframework for Iraq’s transition to a democrati-

cally elected sovereign government, their coun-try rejoined the family of nations ruled by law.The interim constitution—unprecedented forIraq—guarantees basic rights to all Iraqis—including women—and enshrines freedomslong treasured by the world’s democracies.

We have attempted in this journal to pre-sent the reader with several perspectives on con-stitutionalism, key components of a successfulconstitution, and the experiences of variousnations throughout history in crafting constitu-tions uniquely their own. Among our contribut-ing authors are some of America’s leadingauthorities on constitutional law. We are partic-ularly honored to include remarks by a sittingjustice of the United States Supreme Court.Because the U.S. Constitution has served as asource of inspiration for drafters of constitutionsaround the globe, we begin with an essay thatexplains why it has become what contributingauthor Albert Blaustein calls “America’s mostimportant export.”

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I n t r o d u c t i o n

Constitutionalism and EmergingDemocracies

From the Ed i tor s

Associate Supreme Court Justice SandraDay O’Connor, in remarks to the Arab JudicialForum, elaborates on the importance of an inde-pendent judiciary to the strength of democraticrule and efforts in the Arab world to ensuresuch judicial independence. Constitutionalscholars A.E. Dick Howard and HermanSchwartz bring their own experiences as advis-ers to drafters of constitutions the world over totheir essays on the basic building blocks of con-stitutions and the influential role the U.S. Con-stitution continues to play. Scholar Vivien Hartrelates the experience of South Africa and howits constitution building process became a uni-fying force in a country once sharply dividedalong racial lines. We end with a conversationwith noted legal scholar Noah Feldman as herelates his personal experiences with newlyestablished constitutional documents in Iraqand Afghanistan, including an assessment ofthe compatibility of Islam and constitutionaldemocracy.

As democracy spreads throughout the world,future drafters will look to existing constitutionsfor guidance. They must keep in mind that thereis no simple model and no one framework isnecessarily entirely applicable to all countries.We invite readers to continue their explorationof this dynamic subject by visiting the linksincluded in the resources section. We hope thatthis journal will provoke discussion among ourreaders on the nature of democracy and the roleof constitutions within it.

Issues of Democracy, IIP Electronic Journals, Vol. 1, No. 1, March 2004

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issues of Democracy

C o n t e n t s

March 2004

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T H E U . S . C O N S T I T U T I O N :A M E R I C A ’ S M O S T I M P O R TA N T E X P O R T

In this essay Albert Blaustein, who taught at Rutgers School of Law and authored a six-volume work

on the U.S. Constitution, outlines how the document has been used as a model by other governments in

crafting their own constitutions. Written to commemorate the bicentennial of the U.S. Constitution, the

article remains a classic assessment of the attraction of America’s fundamental political document to

nations struggling to achieve democracy from the eighteenth into the twenty-first centuries.

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B U I L D I N G B L O C K S F O R A C O N S T I T U T I O N

Herman Schwartz, a professor at American University’s Washington College of Law,

discusses the basic decisions that must be made about the form of government desired before

the drafting of a constitution can begin. Essential characteristics such as the system of

government, the nature of judicial review, and protection of minority rights need to

be addressed and decided before pen can be set to paper.

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TO W A R D C O N S T I T U T I O N A L D E M O C R A C Y

A R O U N D T H E WO R L D :A N A M E R I C A N P E R S P E C T I V E

Professor of law at the University of Virginia and frequent consultant on constitutional revision

A. E. Dick Howard discusses what countries in Central and Eastern Europe and throughout the world

took from the American model and how each country’s unique cultural and political

circumstances led them down different constitutional paths.

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T H E I M P O R TA N C E O F J U D I C I A L I N D E P E N D E N C E

Associate Supreme Court Justice O’Connor made this presentation at the recent Arab Judicial Forum

in Bahrain. In it she argues that the independence of the judiciary is a fundamental element in

successful constitutional government and makes specific reference to constitutions of countries

in the region that guarantee such independence. O’Connor also discusses ways in which

the U.S. judicial system protects judges from politics.

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D E M O C R AT I C C O N S T I T U T I O N M A K I N G :T H E S O U T H A F R I C A N E X P E R I E N C E

In a recent report from the U.S. Institute of Peace “Democratic Constitution Making”

Professor Vivian Hart analyzes recent practices of constitution making around the world, especially

in divided societies where the constitutional process was a way of reconciling difference,

negotiating conflict, and redressing grievances. She also discusses the South African

constitutional process as a model.

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C O N S T I T U T I O N A L I S M I N T H E M U S L I M WO R L D :A C O N V E R S AT I O N W I T H N O A H F E L D M A N

Noah Feldman, who teaches law at New York University, participated in the creation of the

new constitution in Afghanistan and has consulted in the development of Iraq’s

Transitional Administrative Law that was recently signed. He discusses some of the unique issues

that faced drafters in these war-torn countries and the struggle over how much influence

Shariah codes should have in these emerging democracies.

38B I B L I O G R A P H Y

Further reading on constitutionalism.

40I N T E R N E T S I T E S

Internet sites on constitutionalism.

ED ITOR Leslie High

MANAGING EDITOR Mark Betka

REFERENCE SPEC IAL I STS Anita Green

Lorna Dodt

ART DIRECTOR Diane Woolverton

GRAPH ICS ASS I STANT Sylvia Scott

PUBL I SHER Judith Siegel

EXECUT IVE ED ITOR Guy E. Olson

PRODUCT ION MANAGER Christian Larson

ASST. PROD. MANAGER Sylvia Scott

ED ITOR IAL BOARD George Clack

Kathleen R. Davis

Francis B.Ward

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A N E L E C T R O N I C J O U R N A L O F T H E U . S . D E P A R T M E N T O F S T A T E

I S S U E S O F D E M O C R A C Y

C O N S T I T U T I O N A L I S M A N D E M E R G I N G D E M O C R A C I E S

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h t t p : / / u s i n f o . s t a t e . g o v / j o u r n a l s / j o u r n a l s . h t m

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America’s Founding Fathers drafted the world’sfirst written constitution more than 200 yearsago. The legacy of that historical document isevident today in the constitutions of most of theworld’s democracies, and it continues to influ-ence drafters of the very newest constitutions.Celebrating this important document, a distin-guished constitutional scholar discusses how thePhiladelphia model helped to change the worldand how it continues to be a model for democra-tic governance.

THE U.S. CONSTITUTION is America’smost important export. From its very inception,

its influence has been felt throughout the world.And even where that influence has not resultedin democracy and freedom, it has still broughthope—in President Abraham Lincoln’s words—of government of, by, and for the people.

The story of that influence is a tale worthtelling. America’s Founding Fathers1 fashioneda constitution that was a unique breakthroughin the continuing struggle for human freedom.They believed in the principle of constitutionalgovernment, which they hoped might have rele-vance beyond America. Thomas Jefferson lookedupon the Constitution as a standing monumentand a permanent example for other peoples. ‘Itis impossible,’ he wrote, ‘not to [sense] that weare acting for all mankind.’ President JohnAdams was convinced that American politicalideas would profoundly affect other countries.Alexander Hamilton thought that it had beenreserved to the American people to decide thequestion whether societies themselves are really capable of establishing good government.

C o n s t i t u t i o n a l i s m a n d E m e r g i n g D e m o c r a c i e s

The U.S. Constitution America’s Most Important Export

by Alber t P. Blaustein

James Madison, president and contributor tothe Federalist Papers, believed that posteritywould be indebted to the Founding Fathers fortheir political achievement and for the soundgoverning principles provided for in the U.S.Constitution.

Thus it was the Founding Fathers who becamethe teachers of why and (more importantly) howconstitutions should be written. Their principalstudents were the French. The Marquis deLafayette, for example, admired Jefferson, asdid other critics of the old regime in France.(There exists a draft of the 1789 French Dec-laration of the Rights of Man and Citizen—gen-erally considered one of the most importanthuman rights document ever drafted—with Jef-ferson’s handwritten editing in the margins.)French scholars likewise clustered about Gou-verneur Morris, a principal architect of the U.S.Constitution [who is credited with penning thepreamble ‘We the People of the United States,in order to form a more perfect Union...’] whenhe visited Paris.

But it was not only Frenchmen who praisedthe Founding Fathers. The Polish Constitution,adopted May 3, 1791, preceded the French docu-ment by four months. Any perusal of the Polishcharter—starting with the preamble itself—confirms the study of the American model. Inaddition, there are records of American con-stitutional consultations with German, Austrian,Belgian, Dutch, Spanish, and Portuguese schol-ars and with leaders from the New World. Oneof the leaders of the Brazilian revolutionarymovement, Mason Jose Joaquim da Maia, metwith Jefferson in France for such discussions.

The Spread of Constitutionalism

Since that seventeenth day of September 1787,a one-document constitution has been deemedan essential characteristic of nationhood. Today,of the 192 independent nations of the world, allbut a very few have such a constitution or are

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Jan Matejko’s The Constitution of May 3rd, 1791 showsthe new Polish constitution held aloft by King StanislawAugust Poniatowski. He is carried triumphantly from theRoyal Castle, seen in the background and where it hangstoday, to Warsaw’s St. John’s Cathedral.

committed to having one. Among the exceptionsare the United Kingdom, New Zealand, andIsrael—democratic nations with sophisticatedconstitutional jurisprudence but no one specificdocument that can be called a constitution.Committed to the principle of parliamentarysupremacy, the constitutions of these nationsconsist of numerous legislative enactmentsspecifically designated as ‘basic laws’ (in thecase of Israel) or legal scholarship that hasbeen classified as fundamental or organic.

American ConstitutionalismBefore 1787

Historians generally agree that the first consti-tution to include language creating a governing,political entity was the Fundamental Orders ofConnecticut in 1639; it is known that the firstconstitution that used the word ‘constitution’was Virginia’s Constitution of 1776.

Immediately after the Declaration of Inde-pendence in 1776, the thirteen former Britishcolonies began writing a new series of constitu-tions. Fifteen were published between 1776and 1787, six of the most significant in 1776.These included the constitutions of Pennsyl-vania and Virginia. Both of these documentscreated interest abroad and were being translatedinto other languages—notably French—withinweeks of their being made public. Other copies,whether in English, French, or in another lan-guage, were soon in the hands of scholars fromPoland, Germany, Austria, Switzerland, andSpain, as well as from Mexico, Venezuela,Argentina, and Brazil.

Upon the signing of the alliance betweenFrance and the United States in 1778, thesestate constitutional texts, by then known as theCode de la Nature, were published in Paris. In1783, the American minister in Paris, BenjaminFranklin, obtained from the French minister

for foreign affairs official authorization for aParis printing of Constitutions des Treize Etatsde l’Amerique. In 1786, a year before the draft-ing of the American Constitution, Frenchphilosopher and mathematician, the Marquis deCondorcet, outlining his ideas for a French dec-laration of rights, authored a study of the role ofAmerican political ideas entitled De l’influencede la Revolution d’Amerique sur l’opinion et lalegislation de l’Europe.

The American Precedent

It was the Philadelphia Constitution, however,that set the irreversible precedent for constitu-tionalism. At the time of its drafting and evenbefore its ratification, a course on the U.S. Con-stitution was being taught by lawyer JacquesVincent Delacroix at the Lycee de Paris, aninstitution of free higher education. The num-ber of foreigners who attended that course isunknown. However, it is known that the courseattracted a large following and that it was thesubject of substantial articles in Le Moniteur,the most important newspaper in France. Pariswas then the intellectual capital of Europe andthe center for studies on revolutions and theiraftermath.

Certainly, the Belgians were among thefirst to feel the impact of new constitutionalideas, as can be seen by looking at the Belgianrevolution of 1789. The Belgian DemocraticParty, which existed for a short time in 1790,looked to American state constitutions forexamples of what it advocated.

The first influences of the American Con-stitution on national constitutions was felt in the 1791 documents of Poland and France. ThePolish Constitution was short-lived. It disap-peared in a series of partitions that, in 1795,ended the existence of Poland as a separatenation until after World War I.

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This is not the case with the 1791 FrenchConstitution. While it lasted only briefly andwas replaced by the French constitutions of1793 and 1795, its greatest resource was felt inSpain. The American-inspired French charterwas used as the basis of the Cadiz Constitutionof 1812, Spain’s first constitution. This, in turn,formed the basis of the first Portuguese Consti-tution in 1822. These Iberian constitutionswere known to Simon Bolivar and to otherheroes of Latin American liberation and werealso critical for the preparation of the consti-tutions of the new nations of the Americas.

As early as 1784, Francisco de Mirandawas developing a ‘project for the liberty andindependence of the entire Spanish Americancontinent’ and sought the aid of leading NorthAmerican constitutionalists in his quest. Failingto get sufficient support, he went to London andpursued a business career for more than twodecades. He returned to Venezuela in 1810 towork with Bolivar to establish a Latin Americangovernment based on the U.S. Constitution.History tells us that Venezuela, Argentina, andChile formed their first constitutions in 1811,one year before Spain’s Cadiz Constitution. Allwere based, in part, on the Philadelphia model.

The American Constitution also affectedthe development of Latin American federalism.Venezuela and Argentina are federal states asare Mexico and Brazil, both of whose nationalcharters were established in 1824.

The American Constitution also foundadmirers in Africa. Liberia, which had beensettled by freed slaves from the United States, adopted a constitution in 1847, which was written in major part by a professor from the Har-vard Law School.

The U.S. precedent became an inspirationas well as a model for the European constitu-tions that followed the revolutions of 1848. Inthis year, the first important constitutionaldevelopments occurred in Austria and Italy, andnew constitutions were enacted in France andSwitzerland. It was also the year that the never-to-be implemented Frankfurt Constitution wasdrawn up. It was used in a modified from forlater German constitutions, such as the onedrafted for imperial Germany and the one thatestablished the Weimar Republic in 1919.

American colonialism led to further consti-tutional development at the turn of the century.Cuba, Panama, and the Philippines were all toadopt American-style national charters. Suchcolonialism is also apparent in the pre-WorldWar I constitution of Haiti, reputedly written bythen Assistant Secretary of the Navy Franklin D.Roosevelt.

By far the most important constitution ofthe World War I period was that of Mexico,which was adopted in 1917. Still in existence,although frequently amended, this ranks as oneof the most historic constitutions ever drafted.This was the first constitution to recognize eco-nomic and cultural as well as political rights.Its inner structure and much of its language istaken directly from the Philadelphia Constitu-tion. Also between the world wars many LatinAmerican nations rewrote their constitutions,and the Philadelphia model is apparent in all ofthem. The constitutions of Chile and Uruguayprovide excellent examples.

With the end of World War II, Americaninfluence was dominant in the preparation ofthe new basic charters of West Germany andJapan. Less publicized, but equally significant,was the adherence to the Philadelphia model in India’s 1949 Constitution. Copies of the U.S.Supreme Court reports are available to the

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justices of the Supreme Court of India, wherethey are not only read but frequently cited.

The study of American constitutionalismafter World War II led to a near-universalinterest in the role of the U.S. Supreme Court indetermining the constitutionality of legislation.This function was likewise performed by theSupreme Court of India and the Supreme Courtof Australia as well as by other common-lawcountries. Constitutional review could not beexercised by the Latin American nationsbecause their judicial structures were based onthe civil law system. However, these nationswanted to include the process of judicialreview. The solution was the establishment ofconstitutional courts. The first of these were inGermany and Italy, and they have since prolif-erated throughout the world. The ConstitutionalCourt of Poland [established in the 1980s] wasthe first in the communist world. Brazil, whichdrafted a new constitution in 1988, reexaminedits judicial system to determine whether itshould place judicial review within theprovince of its supreme court or create a consti-tutional court.

The effect of the Philadelphia Constitutioncontinues to be seen. Nigeria, the most populouscountry of Africa, has discarded the parliamen-tary system, which it inherited from Britain andwhich was incorporated into its IndependenceConstitution. In 1999, it adopted a new consti-tution embodying presidential government andending years of military rule. American influ-ence was likewise evident in the constitutionsadopted by Canada and Honduras in 1982, ElSalvador in 1983, Liberia in 1984, Guatemalain 1985, and the Philippines in 1987.

Understanding the American Influence

All this leads to the question: Why has theAmerican Constitution been so influential? Tobegin with, it was the first constitution and thusthe obvious precedent for all subsequent con-stitution-makers. Most constitution-writers arelawyers, and lawyers inevitably seek precedents.From the beginning, commentaries on theAmerican Constitution were published—andstudied and discussed by fellow lawyersthroughout the world.

America’s Founding Fathers believed in aconstitutionally limited republic and they suc-ceeded in constructing a regime that balancedorder and liberty. This has led a large numberof foreigners to our shores to study American-style government and to return home advocatingselected features of it. In many instances, thishas been made possible by scholarships provid-ed by the American foundations and universi-ties and by grants from the U.S. government. Tothis category must be added the foreigners whocame here for other purposes and were likewiseinspired by American constitutionalism. Thisstarted with France’s Lafayette and Poland’sTadeusz Kosciuszko, both officers in GeorgeWashington’s army who later became leaders inthe struggles for freedom in their own countries.

Conversely, the influence of the U.S. Con-stitution has been carried abroad by Americanswho have been called upon to serve as advisersin the writing of other constitutions. Americanshave helped draft the Liberian, Mexican, Ger-man, Japanese, and Zimbabwean constitutions.American scholars also provided ideas for con-stitutional reform in the Philippines [and morerecently in Central and Eastern Europe and theMiddle East].

The principal reason for the influence ofthe Philadelphia Constitution abroad, however,

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can be summed up in one word—success.America is the richest, freest, and most power-ful country in the world, with the longest-lived constitution. The second oldest is Bel-gium’s, from 1831, followed by Norway’s, from1841. There are only four other countries thathave constitutions written before the twentiethcentury: Argentina in 1853, Luxembourg in 1868,Switzerland in 1878, and Columbia in 1886.Seven other constitutions were created beforeWorld War II.

The U.S. Constitution has withstood thetest of time. U.S. constitutional research is amajor project in at least a dozen countries, as itsvalue is being analyzed with a view to the writ-ing of new constitutions.

Albert P. Blaustein was professor of law at Rutgers(The State University of New Jersey) School of Law.He authored numerous scholarly works on the subjectof constitutionalism including a six—volume workon the U.S. Constitution entitled Constitution ofDependencies and Special Sovereignties. Blausteinhelped draft more than 40 constitutions worldwideand visited many of those countries. In 1991, hehelped to write the constitution for the RussianRepublic. Professor Blaustein died in 1994.

1. Those individuals whose contributions to critical doc-uments (Federalist Papers, Declaration of Indepen-dence, the Articles of Confederation, and the U.S. Con-stitution) resulted in the creation of a United States ofAmerica based on ideals of liberty and freedom.

Photograph, page 7: Maciej Bronarski photographer, courtesy

of The Royal Castle in Warsaw.

The opinions expressed in this article are those of the author and do not necessarily reflect the views or policies of the U.S.government.


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Building Blocks for a Constitution

by Herman Schwar tz

Noted author and constitutional scholar HermanSchwartz examines the challenges facing draftersof the world’s newest constitutions. Schwartzelaborates on key building blocks to be consid-ered by drafters of constitutions such as govern-ment structure, human rights protection, andprocedures for amendment.

TH O S E W H O W R I T E constitutionsfor emerging democracies face daunting chal-lenges. First, they must write a document thatenables the society to decide difficult and divi-sive questions peacefully, often under grave circumstances. At the same time they mustestablish effective protections for human rights,including the right of the minority to disagree.

Secondly, divisions and conflicts usuallybegin quickly and resolving these can createlong-term problems. When the transformationis negotiated, as in much of the former Sovietbloc, the losers will try to hold on to as muchpower as they can. If the change involves thecomplete ouster of a regime, as in Iraq, then thewinners will vie for power. The compromisesresolving these disputes are often incorporatedinto the constitution, which can be troublesomein the long run. For example, compromises overslavery in the U.S. Constitution made it possibleto get that Constitution adopted but were ulti-mately not good for the nation.

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Moreover, a constitution is written at a specific point in time, usually when the societyfaces very difficult economic, social, and otherproblems. There is a temptation and often anecessity to deal with these problems quickly.But provisions designed to quickly deal withimmediate problems may not be appropriatesolutions for the long term.

Overhanging all documents written at aspecific time and place is the fact that it isimpossible to foretell the future—and thefuture will always be different from what isanticipated. Thus, drafters of constitutions mustgive future governments the flexibility to meetunpredictable and unforeseeable challenges.

One lesson from near-universal experienceis that human rights must be effectively pro-tected immediately. When an authoritarianregime is ousted, the society inevitably experi-ences a sense of liberation and a yearning forfreedom. But that sense of excitement does notlast very long. Experience in new democraciesand old demonstrates that if human rights arenot adequately protected initially, it will be dif-ficult to do so later.

Preliminar y Considerations

First, should the constitution be written by anordinary legislative body or by a special con-stituent assembly? If the decision is to go withthe former, incumbent legislators can write aconstitution that keeps themselves in office. Aspecial constituent assembly representing asmany elements in society as possible is prefer-able, even though it is more cumbersome andexpensive.

Another preliminary decision is aboutchanging or amending the constitution after it isadopted. It should not be easy to do this. The

document should reflect the deepest values ofthe society and the basic ground rules for thedemocratic process. These should be stable. Onthe other hand, since some of the provisionsproduced by the immediate pressures, conflicts,and expectations of the initial period may be ill-suited for the long term, making changes diffi-cult may prevent future governments from deal-ing adequately with unforeseen problems.

For this reason, it would be wise to reviewthe structural aspects of the constitution after agiven period of time. One way is to provide foran expert commission at ten or twenty-yearintervals to determine whether structuralchanges need to be made. This could be partic-ularly useful after the first ten years, when atleast some of the problems created by the con-stitution will become apparent.

This review should not, however, include aweakening of the human rights provisions eventhough there may be a temptation to do this. Asthe initial euphoria wears off and expectedquick improvements to living standards are notfelt, there is less concern for human rights.Leaders and even peoples may be tempted tosee human rights as a luxury, secondary to mat-ters such as economic stability, even thoughexperience shows that human rights rarelyimpede an effective response to these chal-lenges.

A related preliminary question is whetherthe constitution should be short or long. Manyin the United States believe that because ourshort Constitution has lasted for more than 200years, short constitutions are the best, even fornascent democracies. I do not share that view.U.S. constitutional law cannot be found withinthe texts of the thirty-four original and amend-ing articles. It can only be found in the almost540 volumes of decisions that a powerful and

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solidly established U.S. Supreme Court hasissued over some 215 years. These decisionshave established our most fundamental consti-tutional principles and rights, few of which canbe discerned from the bare text of the U.S. Con-stitution. Democracies that are new, however,do not have the luxury of either the 215 years todevelop these rights and few, if any, start outwith a powerful judiciary. They can and shouldbuild on American and other experience, andwrite these fundamental rights and principlesinto their constitutions without having to waitfor the courts.

This does not of course mean that the con-stitution should be very detailed. Constitutionsthat include too much can block the necessaryflexibility. Deciding what should go into a con-stitution, what should be left to the legislature,and what should not be regulated at all, is oneof the most basic and difficult initial questions.

The Building Blocks

So-called horizontal and vertical structuralissues are the most difficult issues for theyinvolve the distribution of power. They arealmost always resolved amid political contro-versy, with short-term goals, particularly how toget and keep power, often dominant.

An initial issue is whether to have a presi-dential or a parliamentary system. Althougheach has many varieties, they fall into twogroups. The presidential system, of which theAmerican version is the best known, usuallyinvolves the election of a chief executive by thepeople either directly or, as in the United Statesindirectly, for a set period of years. In the Amer-ican model, the president, who is both head ofstate and head of the government, sets bothdomestic and foreign policy and picks ministersto implement these policies. Ministers are often

subject to confirmation by the legislature, butultimately subject to direction and control bythe president.

The legislature is independently elected,also for a set period of years. Neither the presi-dent nor the legislature is normally subject todismissal by the other. This produces a systemof dual legitimacy and clearly separated powers.

The presidential system offers stabilityand, in the hands of a strong president, can pro-vide vigorous leadership. The stability can,however, turn into rigidity, for an unpopular orineffective president cannot be easily removeduntil his or her term expires. Moreover, legis-lative stalemate and gridlock may result if the legislature is controlled by a different polit-ical party. If this division continues, the gov-ernment may not be able to function efficientlyfor many years.

In a parliamentary system, the parliamentis the only source of electoral legitimacy. Thereis no separation of powers between the legisla-ture and the executive—the judiciary of courseis independent but it stands outside the legisla-tive sphere—for the executive branch, usuallycalled the government and headed by a primeminister, is chosen by the party that has amajority in the parliament or from a coalitionreflecting a majority of the legislators. The headof state is a president with little power, and isusually chosen by the parliament. The primeminister and the government are accountable tothe parliament and can be dismissed by it.Elections can be called at any time, providingflexibility. Since there is no formal separation ofpowers between legislative and executive, thereis little chance of an impasse since a govern-ment or prime minister who loses the confi-dence of the parliament can be dismissed by it.

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The parliamentary system can, however,produce a frequent turnover of governments andgreat instability. It can also produce suddendrastic changes of policy when an oppositiongains a majority, which can create a differentkind of instability.

There is no obvious answer to which sys-tem is better. The choice will often depend onhistory, the needs of the moment, and other fac-tors. All the countries of the former Soviet blocoutside the Soviet Union, as well as the Balticnations, adopted parliamentary regimes, inlarge part because they wanted to become a partof Western Europe which is almost entirely parliamentary. All the former non-Baltic com-ponents of the Soviet Union however, haveadopted presidential systems.

It must also be decided whether to have aunicameral (single house) or a bicameral (upperand lower house) legislature. If the state is to bea federal state with relatively autonomous com-ponents, such as the United States or Germany,it may be desirable to have a second (usuallyupper house such as the U.S. Senate) legislativechamber that represents the interests of thecomponents. The second chamber is sometimeslimited to certain decisions such as thoseaffecting taxes and judicial or other appoint-ments, or to matters directly affecting the com-ponents themselves.

Whether to have a second chamber raisesan additional question: how centralized is thestate to be? How much authority and autonomyshould be allocated to lower levels of govern-ment like regions or national units? How muchindependent authority should be allocated tocities, towns, and villages? The range of possi-bilities is wide, from highly autonomous units tototal central control. There is good reason toallow as much autonomy to regional and local

units as they can efficiently manage since acentral administration is often unfamiliar withlocal conditions and needs. Also, participationin local government offers people a chance toparticipate directly in making many of the keydecisions that affect their lives, and can be animportant part of democratic self-governance.

The Judiciar y

History has established the need for an inde-pendent judiciary that can keep the otherbranches from transgressing constitutional lim-its, and particularly where basic human rightsare concerned. This can be either the regularjudicial system, as in the United States, or aspecial tribunal, a constitutional court, limitedto deciding constitutional questions and a fewother matters, as in Germany. In the formercase, the ultimate authority is a supreme courtcomposed of regular court judges who areappointed for life and normally handle appealsfrom lower courts; they decide constitutionalquestions only if necessary to settle the disputeat issue. Most constitutional court members,however, are law professors and others notdrawn from the regular court system and usual-ly serve one, and occasionally more, 8–12 yearterms. They decide constitutional questions ifrequested by high government officials, courtsand in many countries, by private citizens whoclaim that their rights have been violated. Mostemerging democracies have chosen to createconstitutional courts, partly because judicialreview by ordinary judges is not in their tradi-tion, and partly because they mistrust the exist-ing judiciary.

Whatever system is chosen, the constitu-tion must explicitly establish the courts’ author-ity to annul laws and other norms and actsinconsistent with the constitution. If there is a

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special constitutional court, it must not be bur-dened with extraneous responsibilities. Much ofits work will be controversial, for one of itsmajor responsibilities, particularly in the earlyyears, is to establish the constitutional bound-aries among governing authorities. Also, it willsometimes have to rule against the governmentin human rights cases. In all these instances, itwill often be severely criticized by the losers.The constitution should not multiply the occa-sions for such attacks by giving the constitu-tional tribunals non-judicial or non-constitu-tional tasks, for at least in their early years theywill lack the prestige and public support onwhich they depend for effectiveness.

Bolstering an independent judiciary isanother reason why a constitution should not betoo brief. The more specific a constitution, theeasier it will be for the courts to point to rele-vant language in the document to support theirmore controversial decisions, and the less theywill be seen as having acted according to thejudges’ own subjective beliefs.

Because the courts’ decisions will often bepolitically sensitive, their independence andimpartiality must be constitutionally guaran-teed. The judiciary must be an independentbranch of government and not be under theMinistry of Justice. The judiciary should con-trol its financial and administrative affairs, freefrom executive involvement, though necessarilysubject to the legislature’s ultimate control overthe budget.

The constitution must also provide that thelower court judges apply the constitution intheir decision-making. In many of the newdemocracies, all too often those judges ignoreconstitutional issues when making decisions.

Protection of Human Rights

It is now established that the constitution mustprotect human rights and that the courts, par-ticularly the special constitutional tribunals,should play a major role in providing that pro-tection. The U.S. Supreme Court pioneered thisdevelopment, but tribunals throughout theworld now recognize this responsibility. Whereinternational human rights agreements ratifiedby their governments are at issue, judges haveconsidered themselves bound to observe thesetreaties. They have often looked to the courts ofother nations for guidance on common prob-lems. The result has been the creation of aninternational constitutional law of humanrights.

Every new constitution now contains astatement of basic human rights. This is notenough. The constitution must create institu-tions to make those rights enforceable. The con-stitution must specifically provide that personswho claim that their rights have been violatedhave ready access to a court, and that if a vio-lation has occurred, the victim can obtain anadequate remedy for that violation. Manynations have found that an ombudsman (oftenan investigator or mediator of complaints) isuseful in this regard. A special office in thestate prosecutor’s office can also be helpful.

Of vital importance to democracy is thatthe citizenry be able to learn whether the gov-ernment is doing its job properly and acting inthe best interests of the people. The constitu-tion should contain provisions allowing citizensinexpensive and prompt access to all materialsin government files, except those the exposureof which can be shown to endanger nationalsecurity, personal privacy, law enforcement, orsome other vital national interest. Leaving to thelegislature the matter of whether to adopt a

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measure like this is unwise, for many govern-ments resist such measures or try to weakenthem substantially. Few public officials are eagerto expose their activities to public scrutiny.

Adopting the Constitution

The final question is how should the constitu-tion be adopted? By the special constituentassembly discussed earlier? By the regular par-liament, as in many European countries? By thegeneral public? Should the public’s involve-ment take place before or after the constitutionis drafted? If the latter, how should the public’sparticipation be obtained? These and otherquestions have been answered in different ways,and though many political scientists believethat the approval of a constitution should be by the people, that has not been the universalapproach.

Writing a constitution is an experiment, theresults of which will always be significantly dif-ferent from what was intended and anticipated.Moreover, the success of a constitution is usual-ly the result of external factors—the economy,the social forces at work within the society, thenation’s foreign relations, natural disasters, andmany other factors over which constitutionaldrafters have no control.

Despite these difficulties, new constitu-tions for emerging democracies can make a dif-ference. They offer a rare opportunity to createa society in which human beings can live inpeace and freedom. History does not offer anation many such moments, and when theyoccur, the challenges must be met, for thenation’s future is at stake.

Herman Schwartz is a professor of law at AmericanUniversity, Washington College of Law in Washing-ton, D.C., where he specializes in constitutional law,civil rights, and antitrust and utility regulation. Hewas a member of the U.S. Delegation to the 50th and51st Sessions of the U.N. Human Rights Commission,in 1994 and 1995. He is the author of numerousscholarly works including the book The Struggle forConstitutional Justice in Post-Communist Europe,(University of Chicago Press, 2000).



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Professor of law and public affairs A.E. DickHoward delivered remarks on “Constitutional-ism, Human Rights, and the Rule of Law inIraq” before a joint hearing of the U.S. Senatecommittees on the judiciary and foreign relationson June 25, 2003. In his testimony, ProfessorHoward examines the complexities of developingconstitutional governance in newly emergingdemocracies and the influence America’s con-stitution has had. As the people of Iraq movetoward self-rule, questions of how to institution-alize the principles of democracy enshrined in awritten constitution are paramount.

IN RECENT YEARS I have had the privi-lege of sitting with constitution makers in coun-tries seeking to lay the foundations of constitu-tional liberal democracy. Some years earlier, Igained experience in the art of constitutionmaking when I was involved in the drafting ofVirginia’s present state constitution. But noexperience has been so instructive as watchingconstitutions take shape in other lands and cultures.

This experience in comparative constitu-tionalism has drawn me to ask questions aboutthe extent to which one country can assist in, ormake judgments about, another country’s con-stitutional journey. How well do constitutionalideas travel, especially across the boundaries of different cultures or legal systems? Are thereuniversal values by which the relative successof a constitutional system may be measured?Or, as some people argue, must constitutionsultimately be grounded in a country’s culture,history, traditions, and circumstances? ForAmericans, there is the specific question: what


Toward Constitutional DemocracyAround the WorldAn American Perspective

by A. E. Dick Howard

19

relevance does the American constitutionalexperience have for other countries?

The Experience of Central andEastern Europe

To sharpen these questions, consider the expe-rience of the countries of Central and EasternEurope. After the collapse of communism, eachof those countries set out to write new constitu-tions and to design institutions thought to pro-mote constitutional liberal democracy. Draftersin those countries had several sources on whichthey could draw in devising new constitutions.

In some cases they could look back to theirown experience. For example, Poles recall thetraditions of constitutionalism associated withthe memorable Constitution of May 3, 1791.Hungarians have a strong tradition of the rule oflaw, having its roots as early as the “GoldenBull” 1 of 1222. But such traditions are oftenfragmentary and remote. Few countries in Cen-tral and Eastern Europe had any extendedexperience with constitutionalism, democracy,or the rule of law before 1989 (Czechoslovakia’svibrant democracy between the world wars wasa notable exception).

Countries in Central and Eastern Europehave looked to the experience of WesternEurope. Western Europe is the seat of much ofthe core of modern constitutional democracy,such as the teachings of the Enlightenment (an18th century European movement based on theprimacy of human reason), and also the sourcesof many of our basic constitutional principles(such as the separation of powers). Moreover,constitutionalism, democracy, and the rule oflaw have taken hold in manifest ways in West-ern Europe since World War II. Germany, risingfrom the ashes of the war, has become anadmirable example of constitutional democracy.

Spain, moving beyond the legacy of the dictatorGeneral Franco, has become in every respect amodern European state. With these and otherexamples to study, drafters in Central and East-ern Europe have fashioned constitutional sys-tems which in many obvious ways are modeledupon Western Europe. For example, Germany’sConstitutional Court has proved the inspirationfor the creation of constitutional courts through-out Central and Eastern Europe.

International norms and documents are animportant source for constitution-makers inpost-communist Europe, just as they are inother parts of the world. This is especially truein giving shape and protection to human rights.Thus drafters look to such international docu-ments as United Nations conventions and toregional arrangements such as the EuropeanConvention on Human Rights and the Organi-zation for Cooperation and Security in Europe’sHelsinki and Copenhagen documents. Also, itis common for post-communist constitutions tostate that international law and agreementsshall be domestic law within a country.

One would suppose that constitution-makers in Central and Eastern Europe wouldstudy the experience of their closest neighborsin the region. This seems especially helpfulwhen these countries have shared many of theproblems of the post-communist world, such asthe destruction of civil society during the com-munist era, the stultifying effects of commandeconomies, and the cynicism about public lifewhich was spawned by those years. It is myimpression, however, that drafters in the regionhave not cared much to study their nearestneighbors’ experiences. This may partly be aconsequence of historic enmities in the region.But it may also underscore the powerful pull of western models, especially in light of the per-vasive wish of countries in Central and Eastern

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Europe to “rejoin” the family of Europe, in particular, to become members of the EuropeanUnion.

Has the post-communist world looked tothe American experience and to Americanideas and models? A superficial look at newconstitutions in the region might suggest thatAmerican influence has been slight. Through-out Central and Eastern Europe, one sees, forexample, parliamentary systems rather than anAmerican-style congressional system, presi-dential systems that look more to WesternEurope (such as France) rather than to the Unit-ed States, and constitutional courts resemblingthat of Germany rather than an American-styleSupreme Court. The question of Americaninfluence, whether in post-communist Europeor in other countries (such as Iraq), requires,however, a deeper enquiry than this superficialsurvey might suggest.

The Influence of American Constitutionalism: A HistoricalPerspective

The American revolutionary period was a timeof remarkable innovation and accomplishment.Aware of their special place in history, Ameri-ca’s founders shaped such ideas as federalism,separation of powers, judicial review, and otherconcepts which have proved to be among thecore principles of modern constitutionalism, notonly in the United States, but in many othercountries as well. American society differed inimportant ways from that of Europe; there was,for example, no monarchy and no legallyentrenched social order. Even so, Europeansfollowed with fascination the evolution of Amer-ican constitutionalism from the RevolutionaryWar, through the making of the Constitution,and beyond.

For two centuries and more, there has beenintense traffic in constitutional ideas betweenAmerica and other lands. Highlights of thoseexchanges include the following.

The founding era in France and America.The French Revolution, in 1789, brought closeFrench attention to American ideas. Americanstatesman Benjamin Franklin, immensely pop-ular in Paris, undertook to spread news of whatwas happening in America, as did his succes-sor, (future President) Thomas Jefferson. TheVirginia Declaration of Rights (1776) influ-enced the drafting of France’s Declaration ofRights of Man and the Citizen (1789). Whenthe French National Assembly debated France’sfirst constitution, moderate and radical factionsinvoked examples drawn from the experiencewith American state constitutions, especiallyMassachusetts and Pennsylvania.

Liberalism in the nineteenth century. In theearly decades of the nineteenth century, liberalreformers in Europe and in South Americainvoked the United States as proof that liberaldemocracy could survive and flourish. Whenthe revolutions of 1848 broke out in Europe,conventions meeting in France and Germanyfrequently dissected American institutions indeciding what a liberal constitution might look like in Europe. By this time, French philo-sopher and historian Alexis de Tocqueville’sDemocracy in America had heightened interestin the American experience, especially federal-ism and judicial review. Germany’s 1849Paulskirche Constitution, drafted in Frankfurt,was not in fact implemented, but its principles,building in part on American ideas (e.g., feder-alism and constitutional review), reappeared inGermany’s Basic Law of 1949. In South Amer-ica, the age of Simon Bolivar brought constitu-tions which were often modeled heavily on theUnited States Constitution.

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Political evangelism in the early twentiethcentury. The most famous effort to export Amer-ican ideas in the early 20th century was, ofcourse, President Woodrow Wilson’s aim, withthe allied victory in World War I, to “make theworld safe for democracy.” Wilson did notexpect other countries to adopt an American-style constitution, but he did emphasize self-determination, free elections, the rule of law,individual rights, and an independent judiciary.The most successful democracy to rise from theashes of World War I was Czechoslovakia,whose leading founder, Thomas Masaryk, hadspent part of the war in the United States, work-ing hard to influence American policy, byreminding American audiences of their ownDeclaration of Independence.

Japan and Germany after World War II.After the Japanese surrender in 1945, GeneralDouglas MacArthur moved promptly to securethe drafting of a new constitution. Concernedthat the Japanese elite, left to their own devices,would make little substantial change from thestatus quo, MacArthur instructed his militarygovernment to draft a constitution, which theydid in a matter of days.

By the time drafting got underway on whatbecame Germany’s Basic Law of 1949, the ColdWar was beginning to dominate American for-eign policy. The occupying allied powers had asay, of course, in shaping German post-war pol-icy. But, with the Americans and their alliesseeing the Soviet Union as the greater threat,the Germans had a freer hand in the BasicLaw’s drafting. There are important ways inwhich the Basic Law has principles familiar toAmericans, such as federalism and judicialreview. But the 1949 document owes much toGermany’s own constitutional tradition, includ-ing the Paulskirche Constitution.

Waves of democratization in the latterdecades of the twentieth century. The spread ofconstitutionalism, democracy, and the rule oflaw came in waves in the closing decades of thetwentieth century. The 1970s saw autocraticgovernments yield to democracy in the Mediter-ranean countries of Greece, Portugal, and Spain.Spain’s 1978 Constitution is especially impor-tant as a model for other post-authoritariancountries. Attention shifted to South America inthe 1980s, notably to Argentina and Chile. Thegreat year was 1989, the year the Berlin Wallcame down and communism collapsed all overCentral and Eastern Europe. The shock wavesalso hit South Africa, where the apartheidregime fell, and a new constitution came intoeffect in 1997.

American assistance to constitution mak-ing and democratization in such places as post-communist countries has been undertaken bothby public and private bodies. Typically the aidhas taken the form of technical assistance, suchas helping parliaments to update their process-es, nurturing an independent judiciary, andassisting in the drafting of new constitutionsand laws. An especially effective program is theAmerican Bar Association’s Central Europeanand Eurasian Law Initiative, which has senthundreds of legal experts to work in scores ofcountries.

The Place and Relevance of the American ConstitutionalExperience

Constitutionalism must be understood as anexpression of culture. Few would argue with thisproposal if it is advanced as a caveat, namely,that one should always take culture intoaccount in thinking about constitutions andconstitutionalism. But some observers take the

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argument further, contending that there are no“universal” elements of constitutionalism. Forexample, by this view, community or grouprights could be valued above individual rights.

American constitutionalism was the resultof Enlightenment assumptions, steeped inBritish constitutionalism, and shaped in thehistorical settings of America. Some argue,therefore, that the teachings of American con-stitutionalism cannot be exported to other cul-tures. Such arguments often cite the failure ofpast Latin American constitutions based on theU.S. model and more recent problems in placessuch as the Philippines.

Even those who think the American expe-rience is relevant and useful find limits in theUnited States Constitution as a model for for-eign drafters. The document was written in the18th century, reflects the insights of that era,and has required formal amendment (notablythe post-Civil War amendments) and extensive

judicial interpretation. Also, the United StatesConstitution is, in a sense, an incomplete docu-ment, in the sense that its framers assumed theexistence and function of the states and there-fore of state constitutions (documents which inmany ways are rather more like constitutions inother countries).

All of these observations ought to be takeninto account, especially before assuming thatwhat has worked well in America must surelywork for other peoples as well. But the prob-lems of comparative constitutionalism ought notto be turned into categorical barriers. The use-fulness of the American experience does not liein the formal text of the United States Constitu-tion. It is to be found in the general principleswhich are reflected in American constitution-alism and, further, in the practical experience ofmaking constitutional democracy work.

Members of the Iraqi Governing Council look on asHachim al-Hasani, the representative of member MushinAbdul Hamid, signs Iraq’s new interim constitution inBaghdad, Monday, March 8, 2004.

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Factors Bearing on the Prospects for Constitutional Liberal Democracy

It is not enough that a society be democratic. Itmust also be liberal and constitutional. Democ-racy seeks to assure that government is basedupon the consent of the governed and isaccountable to the people. But democraciesshould also be liberal, that is, committed toindividual rights and freedoms, to the princi-ples espoused by English philosopher JohnLocke that the state depends on the individual,not the other way around. And democraciesmust also be constitutional, that is, there mustbe means to assure the enforcement of constitu-tional norms, even when that means negating amajoritarian judgment. The following factorsare critical to the success of constitutional lib-eral democracy.

A country should have sufficient militarystrength, as well as social and economic stabil-ity, to counter foreign aggression and to guardagainst internal subversion or unrest. Strengthneed not come, of course, solely from its ownresources, a country may properly look to itsallies for assistance.

A vibrant constitutional culture often goeshand in hand with a healthy economy. I do notcontend that, because countries are rich, theywill necessarily be constitutional democracies.But it does seem fair to say that poor economicconditions often work to undermine any hopefor constitutional democracy.

There should be a political culture—I wouldcall it a constitutional culture—that encouragesthe values of constitutionalism, liberalism,democracy, and the rule of law. This implies ahigh level of literacy. But it also implies circum-stances in which citizens have practiced the

norms of cooperation and tolerance associatedwith the rising and falling fortunes of social andpolitical causes, candidates, and parties. Itmeans that those who lose an election turn thereigns of power over to the winners. It meansthat those who find that a victory in the legisla-tive process is overturned on constitutionalgrounds by a court accept the principle of con-stitutional limits on government.

An open society, including free and respon-sible press and media, goes hand in hand withconstitutionalism and democracy. There shouldbe the means for open and effective communi-cation among the people and between them andtheir government.

Civil society should flourish. Private orga-nizations—political parties, trade unions, inter-est groups, clubs, etc.—create an importantbuffer between the individual and the state.Such organizations offer a place of refuge forthose who think that the politics of the momentare not in their favor. They offer traininggrounds for the qualities that make for effectivecitizenship and make possible the kind of col-lective voice and action that precludes thestate’s monopoly of power.

States should be based on the civic, ratherthan ethnic or national, principle. That is, allcitizens should have equal standing in the soci-ety. There should not be “insiders” and “out-siders.” If the state is not largely homogeneousin terms of religion, language, ethnicity, or cul-ture, then there needs to be a widely felt com-mitment to the rights of minority groups. Tomake constitutional liberal democracy work,the people must have a level of mutual trust,and ability to cooperate, rather than fragment-ing into camps of hate and hostility.

Ultimately, history, culture, and circum-stance will tell us much about the prospects for

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constitutionalism, democracy, and the rule oflaw in any country. Those who hope to see thesevalues prosper in newly established democra-cies must understand those countries, theirpeoples, histories, and cultures. An example isthe argument over the extent to which Islam is,or is not, ultimately compatible with constitu-tional liberal democracy in a country such asIraq. Iraq’s own history, for example, raises thequestion whether the parliamentary experienceof the Hashemite rule in the years before 1958has any useful legacy, or whether the middleclass has been sturdy enough to survive theyears of Saddam’s repressions. Experts on Iraqwill help inform these judgments. But thosewho would shape events in Iraq should alsoconsult the lessons to be learned from transi-tions from totalitarian or authoritarian regimeselsewhere. The road to constitutionalism,democracy, and the rule of law takes onethrough many lands.

A. E. Dick Howard is White Burkett Miller Professor

of Law and Public Affairs and Roy L. and Rosamond

Woodruff Morgan Research Professor of Law at the

University of Virginia. He is widely acknowledged as

an expert in the fields of constitutional law, compar-

ative constitutionalism, and the U.S. Supreme Court.

Before coming to Virginia, Professor Howard served

for two years as law clerk to U.S. Supreme Court Jus-

tice Hugo L. Black. Howard has briefed and argued

cases before state and federal courts, including the

Supreme Court of the United States. Often consulted

by constitutional draftsmen in other U.S. states and

abroad, Professor Howard has compared notes with

revisors at work on new constitutions in such places

as Brazil, the Philippines, Hungary, Poland, and

South Africa.

Note:

1. Refers to a charter granted by King Andrew II of Hun-gary in 1222, which stated the basic rights and privi-leges of the Hungarian nobility and clergymen and thelimits of the monarch’s powers.


Photograph page 22: AP/WWP, Brennan Linsley


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ALEXANDER HAMILTON, one of theFramers of the United States Constitution, wrotein The Federalist No. 78 to defend the role of thejudiciary in the constitutional structure. Heemphasized that “‘there is no liberty, if thepower of judging be not separated from the leg-islative and executive powers.’…[L]iberty canhave nothing to fear from the judiciary alone,but would have every thing to fear from itsunion with either of the other departments.”Hamilton’s insight transcends the differencesbetween nations’ judicial systems. For only withindependence can the reality and the appear-ance of zealous adherence to the Rule of Law beguaranteed to the people. As former U. S. Pres-ident Woodrow Wilson wrote, government“keeps its promises, or does not keep them, inits courts. For the individual, therefore,…thestruggle for constitutional government is astruggle for good laws, indeed, but also forintelligent, independent, and impartial courts.”

Let us keep in mind the importance of indepen-dence to the effective functioning of the judicialbranch.

The principle that an independent judi-ciary is essential to the proper administration ofjustice is deeply embedded in Arab legal insti-tutions. Virtually every Arab constitution guar-antees judicial independence. For example, theConstitution of the Kingdom of Bahrain pro-vides, in article 104, that “The honor of thejudiciary, and the probity and impartiality ofjudges, is the basis of government and the guar-antee of rights and freedoms. No authority shallprevail over the judgment of a judge, and underno circumstances may the course of justice beinterfered with. The law guarantees the inde-pendence of the judiciary….” Article 65 of theEgyptian Constitution provides: “the indepen-dence and immunity of the judiciary are twobasic guarantees to safeguard rights and liber-ties.” Jordan’s Constitution, in article 97, pro-claims that “Judges are independent, and in the


The Importance of Judicial Independence

Remarks by Sandra Day O’ConnorAssociate Justice, Supreme Court of the United States

Before the Arab Judicial Forum, Manama, Bahrain

September 15, 2003

26

exercise of their judicial functions they are sub-ject to no authority other than that of the law.”

We see the same fine notions embodied inthe six Bangalore Principles of Judicial Con-duct, developed under the auspices of the Unit-ed Nations to further the prospects of strength-ening judicial integrity. The very first principlereads: “Judicial independence is a pre-requi-site to the rule of law and a fundamental guar-antee of a fair trial. A judge shall thereforeuphold and exemplify judicial independence inboth its individual and institutional aspects.”The Cairo Declaration on Judicial Indepen-dence, formulated in the Second Arab JusticeConference in February 2003, “agree[d] that anindependent judiciary is the main pillar sup-porting civil liberties, human rights, compre-hensive development processes, reforms intrade and investment regimes, regional andinternational economic cooperation, and thebuilding of democratic institutions.”

This principle also undergirds the place ofthe judiciary in the United States. The Foundersof the United States recognized that it is essen-tial to the effective functioning of the judiciarythat it not be subject to domination by otherparts of the government. To accomplish thisgoal, the United States Constitution establishedan independent federal judiciary by separatingthe law-making function of the legislativebranch from the law-applying role of the judi-cial branch. This separation of the legislativeand judicial powers has proven essential inmaintaining the Rule of Law. When the roles oflawmaker and judge are played by differentstate actors, the danger of government arbitrari-ness is greatly diminished. When the power tomake laws is separated from the power to inter-pret and apply them, the very foundation of theRule of Law—that controversies are adjudi-

cated on the basis of previously establishedrules—is strengthened.

An independent judiciary requires boththat individual judges are independent in theexercise of their powers, and that the judiciaryas a whole is independent, its sphere of author-ity protected from the influence, overt or insid-ious, of other government actors. In the words ofthe Bangalore principles, judicial indepen-dence has both “individual and institutionalaspects.”

Addressing first the independence of individual judges, two avenues for securing that independence reveal themselves: First,judges must be protected from the threat ofreprisals, so that fear does not direct their deci-sion-making. Second, the method by whichjudges are selected, and the ethical principlesimposed upon them, must be constructed so asto minimize the risk of corruption and outsideinfluence.

In the United States, protection fromreprisals is achieved primarily by keeping thepositions and salaries of judges beyond thereach of external forces. The U.S. Constitutionprovides that federal judges hold office “duringgood behavior.” This is understood to mean forlife, absent the most serious misconduct. TheConstitution also assures that the compensationof federal judges may not be reduced while theyare in office. Together, these provisions ensurethat judges will not be afraid to enforce the lawas they see it. Security in pay and position freesjudges to exercise their best legal judgment inapplying the law fairly and impartially to theparties before them. The Kingdom of Bahrainhas taken a similar approach to ensuring thatthe members of the new Constitutional Courtwill be secure in their positions, by providing inArticle 106 of the Constitution that the Court’s

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members “are not liable to dismissal” duringthe period of their service.

Steps must also be taken to ensure thatjudges exercise their powers impartially and notaccording to any personal interest or outsideinfluence. Judges must not be influenced bybias toward or against particular litigants, norby having a personal stake in the outcome of aparticular case. Judges will never win therespect and trust of the citizens if they succumbto corrupting influences. Whenever a judgemakes a decision for personal gain, or to curryfavor, or to indulge a personal preference, thatact denigrates the rule of law. The selection ofjudges and the ethical principles guiding theirconduct must be managed with these concernsat the fore.

Selection of judges according to the candi-dates’ merit is, naturally, key to ensuring that ajudge will act impartially. Considerations otherthan merit motivating a political actor to appointa judge (or voters to elect a judge) are likely tobe the very considerations that will prevent ajudge from deciding cases fairly and withoutbias. Recognizing that these interests are servedby drawing from the largest possible pool ofmeritorious candidates, the Beirut Declarationof the First Arab Conference on Justice recom-mends that “[t]he election of judges shall befree of discrimination on basis of race, color,sex, faith, language, national origin, social sta-tus, birth, property, political belonging, or anyother consideration. Particularly when electingjudges, the principle of equal opportunity mustbe followed to guarantee that all applicants fora judicial position are objectively assessed.” Inaddition, the Declaration recommends that“[n]o discrimination is permitted between menand women with respect to assuming the judi-cial responsibility.” Heeding these recommen-

dations will serve not only the need to chooseeach candidate on merit, but will temper anyinstitutional bias that might arise if the judi-ciary were entirely homogenous.

Adherence to the principles of judicialindependence is not without difficulties. A par-ticularly troubling issue is the tension that arises, once a judge is appointed, between inde-pendence from political pressure and indepen-dence from the taint of personal interest. Pro-tection from influence exerted by other branch-es of government, and even by other judicialbodies, such as through life tenure and salaryprotection, entails to a large degree protectionfrom discipline. Certainly, if a judge fails toadhere to the most fundamental requirements ofindependence—by taking bribes, for example—removal will be warranted. But short of suchacts, discipline is difficult.

In the United States, maintaining a fair andindependent judiciary has been accomplishedwith remarkable success through self-adminis-tered ethical norms. In the words of former ChiefJustice Harlan Stone, “the only check upon ourown exercise of power is our own self restraint.”Every U.S. state and the federal judiciary has a code of conduct that promotes adherence to the highest ethical norms. The very first canon of the Code of Conduct for federal judges ad-monishes judges to “uphold the integrity andindependence of the judiciary.” As the Code ofConduct explains, “[a]n independent and hon-orable judiciary is indispensable to justice inour society.”

In addition to placing tangible restrictionson judges’ conduct, such as by prohibitingjudges from deciding a case in which he or shehas a personal interest, the Code of Conductrecognizes the importance of perceptions of thejudiciary. A perception of corruption, bias, or

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other unethical traits can be almost as harmfulto society’s confidence in its legal system andits respect for the rule of law as the reality ofthose traits. Judges must not only avoid impro-priety, but also the appearance of impropriety, if public confidence in the judiciary is to bemaintained. Thus, the Code of Conduct for fed-eral judges provides that judges should refrainfrom conduct that would create a perceptionthat the judge’s ability to carry out his or herjudicial responsibilities with integrity, impar-tiality, and competence is impaired. By insist-ing that judges establish, maintain and enforcethe highest standards of conduct, judicial codesof ethics are designed to ensure impartialityand that every case receives a fair hearing.

The Cairo Declaration urged governmentsin the Arab region to “[a]dopt a professionalcode of ethics consistent with the noble missionof the judiciary.” A simple and attractive way todo so is to adopt the Bangalore Principles,which are a well-considered set of ethicalnorms. They are organized around six core val-ues: independence, impartiality, integrity, pro-priety, equality, and competence. Concrete anddetailed instructions give practical content toeach of the values. I believe that the Principles,where adopted, will play as effective a role asthe various Codes of Conduct have done in theUnited States.

I have so far been discussing mechanismsto ensure that individual judges will be able toperform their work free from outside influence.But an independent judiciary also requires pro-tection from more systemic influence from otherparts of government. A fundamental aspect ofthis institutional independence is ensuring thatthe judiciary receives adequate funding. Just as salary protection is necessary to individualjudges’ independence, overall financing issues

can influence the work of the judiciary as awhole. The Beirut Declaration recommends that“[t]he state shall guarantee an independentbudget for the judiciary, including all itsbranches and institutions. This budget shall beincluded as one item into the state budget, andshall be determined upon the advice of thehigher judicial councils within the judicial bod-ies.” The Cairo Declaration urged governmentsto “guarantee the financial independence ofjudiciaries.” Ensuring adequate and uncondi-tional financing, in accordance with these Dec-larations’ recommendations, is a crucial step ininsulating the judiciary from improper influ-ence.

A more complicated issue is that of theinterplay between executive officials and thejudiciary. I mentioned earlier the tension thatexists between independence from other gov-ernment actors on the one hand and, on theother, ensuring that judges do not compromisetheir own independence by succumbing to per-sonal bias or corrupting influences. In the Unit-ed States, we are more solicitous of the formerconcern, and leave the latter mostly up to thejudiciary’s self-regulating ethical principles.Different circumstances might of course requirethat the balance between the two be struck else-where. Care must always be taken to ensure,however, that the independence of the judiciarynot be compromised by acts taken under theguise of disciplining wayward judges.

Judicial independence is not an end initself, but a means to an end. It is the kernel ofthe rule of law, giving the citizenry confidencethat the laws will be fairly and equally applied.Nowhere is this interest more keenly exposedthan in the judicial protection of human rights.Judicial independence allows judges to makeunpopular decisions. Federal judges in the

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United States have at times been called upon tostand firm against the will of the majority. Forinstance, the 1954 Supreme Court decision inBrown v. Board of Education, which declaredthat separate educational facilities for childrenof different races are inherently unequal, pro-voked a firestorm of criticism in much of thecountry. The decision, however, was a crucialmoment in the recognition of civil and politicalrights in the United States.

Judicial independence also allows judgesto make decisions that may be contrary to theinterests of the other branches of government.Presidents, ministers and legislators at timesrush to find convenient solutions to the exigen-cies of the day. An independent judiciary isuniquely positioned to reflect on the impact ofthose solutions on rights and liberty, and mustact to ensure that those values are not subverted.Independence is the wellspring of the courageneeded to serve this rule of law function.

Every country will place its own distinctstamp on the legal system it creates, but someprinciples transcend national differences. Theimportance of a strong and independent judi-ciary is one such principle. But, while it is easyenough to agree that judicial independence isessential in order to uphold the rule of law,more challenging by far is the task of puttingthese precepts into practice.

Sandra Day O’Connor was nominated to serve on the

U.S. Supreme Court by President Ronald Reagan.

She took her seat September 25, 1981.


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South Africa’s constitutional process was one ofits first truly national endeavors, encouragingparticipation from all sectors of the country’sonce-divided society. The author pays specialattention to the methods and procedures bywhich participation was encouraged and thetime required to reach agreement on a new con-stitution. This article has been excerpted fromSpecial Report: Democratic Constitution Mak-ing, a publication of the United States Instituteof Peace

DEVELOPING NATIONS in Africa andelsewhere are experimenting with new structuresand forms of participation in an attempt todevelop an open process that places initiativein the hands of citizens and creates a constitu-tional conversation. In many cases, rather thanworking within the framework of an existingbody of procedures and precedents, thesenations are starting with a clean slate.

The South African Constitution of 1996,for example, is widely regarded as a model con-stitutional text. Likewise, the process by whichit was made has been hailed as a key part of thesuccessful transition from the oppression ofapartheid to a democratic society. The followingfeatures of the South African process illustratethe context and challenges of democratic con-stitution making and set the context for evaluat-ing its general potential and problems.

Negotiations on Process

In all, it took seven years, from 1989 to 1996,to achieve the final constitution. Almost fiveyears elapsed between the first meeting


Democratic Constitution Making The South African Experience

by Vivien Har t

31

between African National Congress leader Nel-son Mandela and Prime Minister P. W. Botha in1989 and agreement on an interim constitutionand the first non-racial election in 1994.Throughout these years, outbreaks of violencethreatened the process.

In a key phase from 1990 to 1994, agree-ments on process were negotiated in private andpublic sessions between former adversaries.These included an agreement to negotiate aboutconstitutional negotiations; prolonged argu-ments about the form the constitution-makingprocess should take; and 1993 agreements onprocedures and, ultimately, agreement on aninterim constitution including principles andprocedures binding on the final constitution-making process.

In April 1994, the first non-racial electionfor parliament was held with a voter turnout ofabout 86 percent. The following month, the newparliament met for the first time as the Consti-tutional Assembly.

In the mid 1990s, the South Africanprocess became a full-scale demonstration ofparticipatory constitution making. Until thattime, the public had had no direct role in con-stitution making. Now their elected representa-tives in the assembly reached out to educatethem and invite their views. The educationaleffort included a media and advertising cam-paign using newspapers, radio and television,billboards, and the sides of buses; an assemblynewspaper with a circulation of 160,000; car-toons; a Web site; and public meetings; togeth-er these efforts reached an estimated 73 percentof the population. From 1994 through 1996, theConstitutional Assembly received two millionsubmissions from individuals, advocacy groups,professional associations, and other interests.

In the final phase, in tandem with the par-ticipatory campaign, committees of the assem-bly drafted a new constitution within the para-meters attached to the 1994 interim constitu-

tion; a first working draft was published inNovember 1995, leaving aside 68 issues forfurther work; a revised draft was produced thefollowing year; and a final text in May 1996.From July through September 1996, the Consti-tutional Court reviewed the text; the court thenreturned the text to the assembly for amend-ments, which were made in October. In Novem-ber, the court gave its final certification and inDecember, President Mandela signed the con-stitution into law.

Establishing Dialogue and Trust

The South African process took time. It wasphased. It benefited from an interim constitu-tion that allowed the dialogue of transition tocontinue. Participation was invited at a chosenmoment rather than throughout and then cre-ativity and resources were committed to facili-tating a serious dialogue. Trust that the outcomewould be consistent with the 1994 democraticprinciples was created by the continuation ofthe conversation between judicial certificationand parliamentary confirmation. Groupsincluding women and traditional authoritiesfound voice and access and made sure that theirinterests were taken into account. Also impor-tant was the fact that South Africa had a pre-existing civil society that could be drawn in asa counterweight to the entrenched racial andpartisan divisions of politics. Other importantfactors that sustained the formal processinclude patience, especially in the face of vio-lence; a willingness by all concerned to takesome bold steps; and a combination of negotia-tion in private over some of the most difficultissues and unprecedented public involvement.

Only a considerable commitment of timeand resources makes genuine public participa-tion possible. Even if we count South Africa’sstarting point as the moment of agreement in1991 to negotiate the process, constitutionmaking in that highly successful case took at

32

least five years. Many would argue that theprocess was underway at least two years beforethat, from the moment leaders began tentativeapproaches across the racial divide; clearly,part of the process is the building of an ade-quate level of trust between elites and amongthe general public to enable a constitutional con-versation to take place at all.

Modes of participation vary considerably—there is no one model appropriate to allnations. South Africa elected a parliament thatacted as the Constitutional Assembly. SouthAfrica sought out public opinion through a vari-ety of channels, used media imaginatively, anddevised materials to make constitutional issuesaccessible in multiple languages.

But the public was not involved equally atall stages of the South African and otherprocesses. While South Africans could followthe progress of public negotiations up to 1994,some absolutely critical deadlocks along theway were resolved in secret meetings. Theentire public was first invited to take part in the1994 election, the most conventional form ofparticipation. But in the South African context,where most of the population had previously

been excluded on racial grounds, this was amomentous act. Approximately 86 percent ofthe population voted. The number of voters, aswell as the number of submissions to the Con-stitutional Assembly, confirm that the publicwill participate where they see the issues and

outcomes as important.

Vivien Hart is a research professor at the University ofSussex, where she previously served as the director ofthe University’s Cunliffe Centre for the Study of Consti-tutionalism and National Identity, an internationalresearch network involving scholars and activists fromthe United Kingdom, Europe, United States, Canada,South Africa, Sri Lanka, and Fiji. Her book, WomenMaking Constitutions, edited with Alexandra Dobro-wolsky, was released in November, 2003. Hart was asenior fellow in the U.S. Institute of Peace’s JenningsRandolph Program for International Peace in2002–2003.

The opinions expressed in this article are those of the author and donot necessarily reflect the views or policies of the U.S. government.

Photograph above: AP/WWP, B. K. Bangash


South African President Nelson Mandela, center, anddeputy presidents, Thabo Mbeki, left and F. W. de Klerk,right, celebrate the new constitution, May 8, 1996.

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In this interview, law professor and Islam expertNoah Feldman reflects on his experiences withtwo of the world’s newest constitutional process-es. He was an advisor to the State Department onreligious liberty issues in the drafting of theAfghan constitution. In Iraq, he was a seniorconstitution advisor to the Coalition ProvisionalAuthority from April to July 2003. He continuesto advise various members of the Iraqi GoverningCouncil, and he consulted in the drafting ofsome of the interim constitutional documents.

IN YOUR BOOK, After Jihad, America and the Struggle for Islamic Democracy, you argue thatIslam and democracy are not incompatible andthat Islamic values and democratic ideals can co-exist in a successful society. What led you to thatconclusion?

Dr. Feldman: There are several issues at stakehere. First is that many, many people in theMuslim world say publicly they believe thatdemocracy and Islam can work together well.Of course, there are Islamic countries that aredemocratic and relatively successful at democ-racy. Turkey is the most obvious example, butone could also look to Indonesia or Bangladeshas democracies that are finding their feet. Inaddition, there have been recent democraticreforms in a range of other Muslim countries—the new constitution in Bahrain, to give onestriking example.

At a practical level, we see that Islamicdemocracies can and do exist, and at a theoret-ical level, a growing number of scholars andordinary people in the Muslim world argue that the traditions of Islam and democracy aren’tincompatible and can be made to work together.


Constitutionalism in the Muslim World A Conversation with Noah Feldman

34

Question: When it comes time to develop ademocratic constitution in an Islamic country,what are some of the special considerations andspecific challenges?

Dr. Feldman: Well, the first is at the theoreticallevel. People have to come to see the generalapproaches of the two as not incompatible.Some people think that because God is sover-eign in Islam, the people can’t be the ultimatedecisionmakers in their governance. Theremight be a difficulty in resolving the politicalpower of the people and the sovereignty of God.

But at the theoretical level, I think it’s pos-sible to respond that in Islam, although God issovereign, God’s laws are still interpreted byhumans, and day-to-day governance happensby people, not by God. What’s more, in democ-racy we believe there are some fundamentalrights that transcend what the people might ormight not think was right at a given point, likethe right to life and liberty.

Then there is the practical process of figur-ing out institutions within the constitution thatwill mediate between Islamic and democratic values when they might appear to outsideobservers to be in contention with each other.

Afghanistan

Question: In Afghanistan, what kinds of structuralissues did the drafters face?

Dr. Feldman: Those kinds of issues are impor-tant in any constitution writing process. Theydon’t specifically relate to the Islam-democracyquestion. You could have a strong executivebranch of government in Islamic democracy ora weak executive. Those are very importantquestions for any constitution across the board.

What they had to deal with in Afghanistanwas the fact that the constitution declares Islamto be the official religion of the state. But it alsodeclares the Afghan state to be one in whichthere are elections and democratic values.

They had to deal with the structural ques-tion of when to apply Islamic law. They came upwith a provision in the constitution, which orig-inally appeared in the 1906 Iranian draft con-stitution, stating that no law made by the peopleshall be contrary to Islam.

Participants of the Afghan Loya Jirga, or grand council,listen to delegates on the second day of meeting, December, 2003 in Kabul, Afghanistan. Afghan eldersgathered in Kabul to draft the country’s constitution.

35

They also created a constitutional courtthat presumably has the power to adjudicatewhether a given law violates the values of Islam.Here we see an example of a place where theyidentified a potential conflict, and they adjudi-cated it. To be more precise, they created aninstitution to adjudicate the conflict.

Question: I understand that the high court isgoing to be a combination of secular law judgesand Islamic judges. Are you optimistic that willwork?

Dr. Feldman: It’s an experiment. It has the pos-sibility of working, but there are certainly noguarantees. It’s an experiment with a body thatwill be able to mediate between those two dif-ferent sets of values, and do it in a way that isperceived as legitimate by the rest of theAfghan people.

Question: Does Shariah play any other role underthe constitution, besides in the high court and inthe part you just referred to stating that no lawshall be made that goes against Islam?

Dr. Feldman: There is a guarantee that whereShariah is applied, the particular school ofShariah that a given person belongs to will berespected, so no one will be obligated to followa branch of Shariah that is not their ownbranch.

This provision is guaranteed in the consti-tution. That is probably the most prominentplace where Shariah plays a role. Interestingly,there is no provision saying specifically thatShariah is a source of legislation or the sourceof legislation in that constitution.

Question: Are there deliberate ambiguities orgaps in the Afghan constitution? For example,issues that couldn’t be decided on or for whichconsensus and agreement couldn’t be reachedthat are to be left to the future somehow?

Dr. Feldman: The constitution guarantees theequality of women, but doesn’t address thequestion of what would happen if some particu-lar provisions of Islamic law were seen to be

incompatible with their equality.Maybe the court will just interpret the

Shariah to be egalitarian, and that would be onepossible outcome. That issue isn’t explicitlyaddressed. So, yes, there is a sort of gap, if youwill, left there. It will be up to this constitution-al court to deal with it.

Question: Women’s groups have expressed a con-cern that the guarantee for women’s rights in theconstitution is not as clearly stated or as strong asthey would have preferred.

Dr. Feldman: There is a specific [number of del-egates] set aside for women in the legislature,and an express guarantee of equality for womenin the constitution. There’s also a guaranteethat Afghanistan will abide by internationaltreaty obligations, which include the [U.N.]Convention on the Elimination of All Forms ofDiscrimination against Women (CEDAW).

Those are three pretty strong guarantees,notably none of which are noted in the U.S.Constitution. We don’t have a set aside forwomen in the legislature. We don’t have anexpressed mention of women as equal in ourConstitution, nor have we ever ratified theCEDAW. It could always be better, but that’s agood start by Afghanistan, I think.

IRAQ

Question: Let's move on to Iraq. The Iraqi Gov-erning Council adopted a so-called "interim con-stitution" on March 8. What does this do, andhow long will it be in effect?

Dr. Feldman: What it does in principle is that itcreates a framework for government, first dur-ing the transitional period prior to nationalelections in January 2005, and also it providesa framework for what the government will looklike once those elections take place. In reality,it still remains to be seen whether the constitu-tion will go into effect as written, or whether itwill be changed. As of right now, the GoverningCouncil members have agreed to abide by itafter June 30.

36

Question: Are there indications that there will be a lot of pressure to change the interim consti-tution?

Dr. Feldman: There is already pressure to changeit. The very day that it was signed, Shia leaderAyatollah al Sistani said that he had issues withit. Other Shia leaders seemed to have echoedthose concerns. The concern that Ayatollah alSistani has spoken of expressly in a recent let-ter to the United Nations Special Representa-tive, Lakhdar Brahimi was that the three-manpresidency created by the transitional constitu-tion is insufficiently majoritarian. His letterstates that he hopes the U.N. Security Councilresolution will not endorse the entire documentas it stands, but will recognize that the Nation-al Assembly has the authority to amend thisdocument. He specifically implied that hewould like to see an amendment to the three-man presidency.

Question: So the structure of the government is apresidential rather than a parliamentary system?

Dr. Feldman: No, it actually is a parliamentarysystem with a prime minister, and then a three-man presidency which has some real powers,some veto powers, but which is not the primaryexecutive.

Question: What does the interim constitutionhave to say about human rights and religious free-dom?

Dr. Feldman: It guarantees freedom of religion,freedom of conscience, freedom of thought inlanguage that is borrowed from the UniversalDeclaration of Human Rights. It also specifiesa whole list of basic human rights familiar frominternational human rights documents: rightsagainst torture, rights to equal protection of acitizen, rights to due process of law, and so forth.

Question: So it's close to being a complete Bill ofHuman Rights?

Dr. Feldman: I would describe it as an exhaus-tive bill of human rights. It guarantees equality

for all Iraqis whether they are men or women,regardless of their religion or their ethnicity ornational origin. It is very comprehensive list ofrights, a remarkable document in that respect.

Question: Does it have provisions for women ingovernment?

Dr. Feldman: It does. The Transitional Adminis-trative Law states “The National Assembly shallbe constructed in such a way as to ensure that25 percent of the representatives to the Nation-al Assembly are women.” Now, there is somedebate over whether that is a strict quota orwhether that is a target to aspire to. The lan-guage is somewhere in between, but I would saycloser to an express requirement that theNational Assembly be made of at least 25 per-cent women.

Question: Do you expect that there will be a widepublic debate on the document?

Dr. Feldman: I do. The document was draftedwithout major public participation. That is adefect understood by all. There will now be adebate, first of all, about the character of thetransitional law itself. I expect there to be arobust debate about that. And then, I expectthere to be a further debate on the question ofwhat aspects of this document should be alteredor should remain the same in a subsequent per-manent constitution which is to be both draftedand ratified by the National Assembly.

Question: In terms of political activity, does thetransitional constitution prohibit, as the Afghanconstitution does, political parties organizedaround regional or ethnic groups?

Dr. Feldman: It does not, nor could it have doneso and remain consistent with the politicalorganizations associated with Kurdish parties.The Kurdish Democratic Party and the PatrioticUnion are both organized around Kurdish iden-tity and come out of Kurdistan.

Question: If the constitutions in Iraq (eventually)and in Afghanistan enjoy some success and foster

37

stability and new freedoms for their citizens, whatimpact do you think this will have on the rest ofthe region?

Dr. Feldman: I think it will throw into relief thelack of freedom and democracy in some of theneighboring countries. Iran had some verypromising democratic developments which nowseem to be short-circuited, and if you see ShiahClerics in Iraq calling for open, free elections,and Shiah Clerics in Iran calling for limitedelection, it will have an influence on Iran,because Iranians will see even more clearlythan they already do just how failed their sys-tem has become.

Similarly, in Saudi Arabia, people will seeon satellite television, public debate overimportant constitutional issues, and they willsee that those kinds of debates don’t “bring thehouse down” necessarily, and that will increasepressure for opening and liberalization there.

In Syria as well, I think there will be anincreased sense of the necessity of greaterreform than has happened heretofore. I think itis going to have a positive effect everywhere inthe region.

If democracy fails in Iraq, it’s going tohave a negative effect everywhere in the region.People who are advocates of liberalization anddemocratization will increasingly come to seeand think that democracy is not a viable gov-ernmental structure in majority-Muslim coun-tries. That would be a terrible, terrible shame.

Question: The question a lot of people ask is:“What happens if Islamic extremists are electeddemocratically?” You give a disturbing example ofAlgeria in your book.

Dr. Feldman: I think one thing to be clear aboutAlgeria, despite what many people recall, isthat it wasn’t in fact the Islamists who drove thecountry into civil war. The Islamists didn’t saythey were going to abolish democracy. To thecontrary, they said they were willing to partici-pate democratically. They never got the chanceto prove that one way or the other, though,because the military government called off the

elections, and they are the ones who reallybrought about a loss of freedom in the country.

I do think that elections everywhere in theMuslim world, where they have been somewhatfree in recent years, have led to Islamic partiesdoing very well. I would expect the same thingto happen in Iraq, and indeed in Afghanistan.

That’s the general trend that one sees. Thatdoesn’t mean that those parties are necessarilygoing to act undemocratically. Turkey is anexample where the party that is in power is amoderately Islamic party, but they don’t go bythat name. Turkey’s official secularism dictatesthey can’t, but they are. They have been gov-erning very democratically.

Question: So, once they came to power, they kindof moderated themselves?

Dr. Feldman: In Turkey, they were relatively mod-erate when they were running for office. I thinkthe reality of being in a democracy is you haveto get re-elected. As long as you have to get re-elected, you can’t govern in a way that is going to alienate large segments of the popu-lation. In Iran, by contrast, where the rulerscame to power by revolution, they are able toget away with oppressive measures, eventhough the people profoundly reject them.There is obviously a significant differencebetween coming to power in a legitimate wayand coming to power by force.

Noah Feldman is a professor at the New York Univer-sity School of Law in New York City. A formerSupreme Court clerk, he earned a doctorate in Islam-ic thought from Oxford University in England as aRhodes Scholar. He is the author of After Jihad:America and the Struggle for Islamic Democracy. Hewas interviewed by Leslie High.


Photograph page 34: AP/WWP, B. K. Bangash


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Bailyn, Bernard.To Begin the World Anew:The Genius and Ambiguities of the American Founders.New York: Alfred K. Knopf, 2003.

Belz, Herman.A Living Constitution or Fundamental Law? AmericanConstitutionalism in Historic Perspective.Lanham, Maryland: Rowman & Littlefield, 1998.

Berggren, Niclas, et. al., eds.Why Constitutions Matter. New Brunswick,New Jersey:Transaction Publishers, 2002.

Billias, Goerge Athan, ed.American Constitutionalism Abroad: Selected Essays in Comparative Constitutional History.New York: Greenwood Press, 1990.

Blaustein,Albert P., ed.Constitutions That Made History.New York: Paragon House Publishers, 1988.

Chemerinsky, Erwin.Constitutional Law: Principles and Policies.New York: Aspen Law & Business, 2002.

Faigman, David L.Laboratory of Justice. New York:Times Books: Henry Holt, 2004.

Feldman, Noah.After Jihad: America and the Struggle for IslamicDemocracy. New York: Farrar, Straus,& Giroux, 2003.

Ferejohn, John et al., eds.Constitutional Culture and Democratic Rule.Cambridge; New York: Cambridge University Press, 2001.

Finer, S.E. (Samuel Edward), et. al. eds.Comparing Constitutions. Oxford: Clarendon Press; New York : Oxford University Press, 1995.

Hassen, Ebrahim.The Soul of a Nation: Constitution-Making in South Africa. Oxford: Oxford University Press, 1998.

Henkin, Louis et. al., eds.Constitutionalism and Rights: The Influence of the United States Constitution Abroad.New York: Columbia University Press, 1990.

Hoffman, Daniel N.Our Elusive Constitution: Silences, Paradoxes,Priorities. Albany: State University of New York Press, 1997.

B i b l i o g r a p h y

Fur ther Read ing on Const i tu t iona l i sm

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Howard,A.E. Dick.Democracy’s Dawn: A Directory of American Initiatives on Constitutionalism, Democracy,and the Rule of Law in Central and Eastern Europe. Charlottesville,Virginia: University Press of Virginia, 1991.

Jackson,Vicki C., et al. eds.Defining the Field of Comparative Constitutional Law.Westport, Connecticut: Praeger, 2002.

Kaplin,William A.American Constitutional Law: An Overview,Analysis, and Synthesis. Durham, North Carolina:Carolina Academic Press, 2004.

Knock,Thomas, J.To End All Wars:Woodrow Wilson and the Quest for a New World Order. Oxford: Oxford UniversityPress, 1992.

Levin, Daniel Lessard.Representing Popular Sovereignty:The Constitution inAmerican Political Culture. Albany: State Universityof New York Press, 1999.

McHugh, James T.Comparative Constitutional Traditions.New York: Lang, Peter Publishing, 2002.

McNelly,Theodore.The Origins of Japan’s Democratic Constitution.Lanham, Maryland: University Press of America,2000.

Powell, Jefferson.A.Community Built on Words:The Constitution in History and Politics. Chicago : University of Chicago Press, 2002.

Quinn, Frederick.Democracy At Dawn: Notes From Poland and PointsEast. College Station,Texas:Texas A&M UniversityPress, 1998.

Schwartz, Herman.The Struggle for Constitutional Justice in Post-Communist Europe. Chicago: University of Chicago Press, 1999.

Seidman, Louis Michael.Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review. New Haven,Connecticut:Yale University Press, 2001.

Siegan, Bernard H.Drafting a Constitution for a Nation or RepublicEmerging Into Freedom, 2nd edition. Fairfax,Virginia: George Mason University Press, 1994.

Sunstein, Cass R.Designing Democracy:What Constitutions Do.New York: Oxford University Press, 2001.

Teitel, Ruti G.Transitional Justice. Oxford ; New York:Oxford University Press, 2000.


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Internet resources were active as of March,2004.The U.S. Department of State does nottake responsibility for those websites whoseaddresses have changed and/or websites nowdisplaying inappropriate material.

ABA: Central European and Eurasian Law Initiative

http://www.abanet.org/ceeli/home.html

American Bar Association public service project toadvance rule of law by supporting the legal reformprocess in Eastern Europe and the New Indepen-dent States of the former Soviet Union.

Charters of Freedom

http://www.archives.gov/national_archives_experience/constitution.html

Online exhibit of the U.S. Constitution,presented by the U.S. National Archives.

Comparative Constitutional Law Guide

http://www.ll.georgetown.edu/intl/guides/compcon/print.html

Created by the Georgetown University Law Library.

Comparing Constitutions and International Con-stitutional Law, A Primer

http://www.oefre.unibe.ch/law/icl/compcons.html

The Constitution Finder

http://confinder.richmond.edu/

Links to the constitutions of most nations, in a variety of languages and in English.

The Constitution of the United States

http://www.law.emory.edu/FEDERAL/usconst.htmlhttp://www.thisnation.com/constitution.html

Constitutional Law: An Overview

http://www.law.cornell.edu/topics/constitutional.html

Descriptive essay of constitutional law with links to U.S. laws and other sources.

I n t e r n e t S i t e s

I n ter net S i tes on Const i tu t iona l i sm

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Constitutional & Legal Policy Institute (COLPI)

http://www.osi.hu/colpi/indexe.htm

COLPI supports democratic legal reform in thecountries of Eastern Europe, Central Asia, andMongolia.

International Journal of Constitutional Law

http://www3.oup.co.uk/jnls/list/ijclaw/default.html

Established in 2003, presents current legal scholarship from the international community.

The National Constitution Center in Philadelphia

http://www.constitutioncenter.org

A new museum in Philadelphia explaining theConstitution, encouraging citizen participation and providing educational resources.

Researching Constitutional Law on the Internet

http://www.lib.uchicago.edu/~llou/conlaw.html

A comprehensive Web-based bibliography

U.S. Constitution Online

http://www.usconstitution.net/

Designed for use by high school debate students.

U. S. Institute of Peace: Constitution-Making Web Links

http://www.usip.org/library/topics/constitution.html

These links complement the Institute’s Rule of LawProgram and its project on Constitution-Making,Peacebuilding, and National Reconciliation.

Selected U.S. Law Schools

Columbia University

http://www.lawschool.columbia.edu

Cornell University

http://www.lawschool.cornell.edu

Harvard University

http://www.law.harvard.edu

New York University

http://www.law.nyu.edu

Stanford University

http://www.law.stanford.edu

University of Chicago

http://www.law.uchicago.edu

University of Michigan—Ann Arbor

http://www.law.umich.edu

University of Pennsylvania

http://www.law. upenn.edu

University of Virginia

http://www.law.virginia.edu

Yale University

http://www.law.yale.edu


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C O N S T I T U T I O N A L I S MA N D

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