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IntroductionConstitutionalism and EmergingDemocraciesFrom the EditorsT HE SENSE OF anticipation is palpableamong delegates to the constitutional assembly.Dignitaries, average citizens, academics, religiousscholars and community leaders—manyelected by their respective constituencies to representthem—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. Penis put to paper, signatures are collected, anda simple document becomes a beacon of hopein 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 constitutionalismis not the most recent. When members ofthe Iraqi Governing Council signed the TransitionalAdministrative Law, establishing a legalframework for Iraq’s transition to a democraticallyelected sovereign government, their countryrejoined 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 presentthe reader with several perspectives on constitutionalism,key components of a successfulconstitution, and the experiences of variousnations throughout history in crafting constitutionsuniquely their own. Among our contributingauthors are some of America’s leadingauthorities on constitutional law. We are particularlyhonored 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.”2

Associate Supreme Court Justice SandraDay O’Connor, in remarks to the Arab JudicialForum, elaborates on the importance of an independentjudiciary 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 advisersto drafters of constitutions the world over totheir essays on the basic building blocks of constitutionsand the influential role the U.S. Constitutioncontinues to play. Scholar Vivien Hartrelates the experience of South Africa and howits constitution building process became a unifyingforce 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 20043

Contentsissues of DemocracyMarch 2004T HE6U.S. CONSTITUTION:A MERICA’ S M OST I MPORTANT E XPORTIn this essay Albert Blaustein, who taught at Rutgers School of Law and authored a six-volume workon the U.S. Constitution, outlines how the document has been used as a model by other governments incrafting their own constitutions. Written to commemorate the bicentennial of the U.S. Constitution, thearticle remains a classic assessment of the attraction of America’s fundamental political document tonations struggling to achieve democracy from the eighteenth into the twenty-first centuries.12B UILDING B LOCKS FOR A C ONSTITUTIONHerman 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 beforethe drafting of a constitution can begin. Essential characteristics such as the system ofgovernment, the nature of judicial review, and protection of minority rights need tobe addressed and decided before pen can be set to paper.18TOWARD C ONSTITUTIONAL D EMOCRACYA ROUND THE W ORLD:A N A MERICAN P ERSPECTIVEProfessor of law at the University of Virginia and frequent consultant on constitutional revisionA. E. Dick Howard discusses what countries in Central and Eastern Europe and throughout the worldtook from the American model and how each country’s unique cultural and politicalcircumstances led them down different constitutional paths.25T HE I MPORTANCE OF J UDICIAL I NDEPENDENCEAssociate Supreme Court Justice O’Connor made this presentation at the recent Arab Judicial Forumin Bahrain. In it she argues that the independence of the judiciary is a fundamental element insuccessful constitutional government and makes specific reference to constitutions of countriesin the region that guarantee such independence. O’Connor also discusses ways in whichthe U.S. judicial system protects judges from politics.4

30D EMOCRATIC C ONSTITUTION M AKING:T HE S OUTH A FRICAN E XPERIENCEIn 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, especiallyin divided societies where the constitutional process was a way of reconciling difference,negotiating conflict, and redressing grievances. She also discusses the South Africanconstitutional process as a model.33C ONSTITUTIONALISM IN THE M USLIM W ORLD:A CONVERSATION WITH N OAH F ELDMANNoah Feldman, who teaches law at New York University, participated in the creation of thenew constitution in Afghanistan and has consulted in the development of Iraq’sTransitional Administrative Law that was recently signed. He discusses some of the unique issuesthat faced drafters in these war-torn countries and the struggle over how much influenceShariah codes should have in these emerging democracies.38B IBLIOGRAPHYFurther reading on constitutionalism.40I NTERNETS ITESInternet sites on constitutionalism.A N E LECTRONIC J OURNAL OF THE U.S.DEPARTMENT OF S TATEI S S U E S O F D E M O C R A C YC ONSTITUTIONALISM AND E MERGING D EMOCRACIESM A R C H 2004http://usinfo.state.gov/journals/journals.htmE DITORLeslie HighP UBLISHERE XECUTIVE E DITORP RODUCTION M ANAGERA SST.PROD.MANAGERJudith SiegelGuy E. OlsonChristian LarsonSylvia ScottE DITORIAL B OARDGeorge ClackKathleen R. DavisFrancis B. WardM ANAGING E DITORMark BetkaR EFERENCE S PECIALISTSAnita GreenLorna DodtDiane WoolvertonSylvia ScottA RT D IRECTORG RAPHICS A SSISTANTThe Bureau of International Information Programs of the U.S. Department of State provides products and services that explain U.S. policies, society, and values to foreign audiences. The Bureaupublishes five electronic journals that examine major issues facing the United States and the international community.The journals—Economic Perspectives, Global Issues, Issues of Democracy, U.S. ForeignPolicy Agenda and U.S. Society and Values—provide statements of U.S. policy together with analysis, commentary and background information in their thematic areas. • All issues appear in English, Frenchand Portuguese and Spanish language versions, and selected issues also appear in Arabic and Russian. • English-language issues appear at approximately a one-month interval. Translated versionsnormally follow the English original by two to four weeks. • The opinions expressed in the journals do not necessarily reflect the views or policies of the U.S. government. The U.S. Departmentof State assumes no responsibility for the content and continued accessibility of Internet sites linked to herein; such responsibility resides solely with the publishers of those sites. Articles may bereproduced and translated outside the United States unless the articles carry explicit copyright restrictions on such use. Potential users of credited photos are obliged to clear such use with saidsource. • Current or back issues of the journals, and the roster of upcoming journals, can be found on the Bureau of International Information Programs’ International Home Page on the WorldWide Web at http://usinfo.state.gov/journals/journals.htm. They are available in several electronic formats to facilitate viewing on-line, transferring, downloading, and printing. • Comments arewelcome at your local U.S. Embassy or at the editorial offices: Editor, Issues of Democracy, Democracy and Human Rights—IIP/T/DHR, U.S. Department of State, 301 4th Street, S.W.,Washington, D.C.20547, United States of America.e:mail: ejdemos@ state.gov5

Constitutionalism and Emerging DemocraciesThe U.S. ConstitutionAmerica’s Most Important Exportby Albert P. BlausteinAmerica’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 influencedrafters of the very newest constitutions.Celebrating this important document, a distinguishedconstitutional scholar discusses how thePhiladelphia model helped to change the worldand how it continues to be a model for democraticgovernance.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 Fathers 1 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 relevancebeyond 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 arereally capable of establishing good government.6

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 Declarationof the Rights of Man and Citizen—generallyconsidered one of the most importanthuman rights document ever drafted—with Jefferson’shandwritten editing in the margins.)French scholars likewise clustered about GouverneurMorris, 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.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.But it was not only Frenchmen who praisedthe Founding Fathers. The Polish Constitution,adopted May 3, 1791, preceded the French documentby 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 constitutionalconsultations with German, Austrian,Belgian, Dutch, Spanish, and Portuguese scholarsand 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 ConstitutionalismSince 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 are7

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 1787Historians generally agree that the first constitutionto 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 Independencein 1776, the thirteen former Britishcolonies began writing a new series of constitutions.Fifteen were published between 1776and 1787, six of the most significant in 1776.These included the constitutions of Pennsylvaniaand 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 language,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 ministerfor foreign affairs official authorization for aParis printing of Constitutions des Treize Etatsde l’Amerique. In 1786, a year before the draftingof the American Constitution, Frenchphilosopher and mathematician, the Marquis deCondorcet, outlining his ideas for a French declarationof 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 PrecedentIt was the Philadelphia Constitution, however,that set the irreversible precedent for constitutionalism.At the time of its drafting and evenbefore its ratification, a course on the U.S. Constitutionwas being taught by lawyer JacquesVincent Delacroix at the Lycee de Paris, aninstitution of free higher education. The numberof 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 Constitutionon national constitutions was felt inthe 1791 documents of Poland and France. ThePolish Constitution was short-lived. It disappearedin a series of partitions that, in 1795,ended the existence of Poland as a separatenation until after World War I.8

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 Constitutionin 1822. These Iberian constitutionswere known to Simon Bolivar and to otherheroes of Latin American liberation and werealso critical for the preparation of the constitutionsof 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 HarvardLaw School.The U.S. precedent became an inspirationas well as a model for the European constitutionsthat 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 neverto-beimplemented 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 constitutionaldevelopment 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 economicand cultural as well as political rights.Its inner structure and much of its language istaken directly from the Philadelphia Constitution.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 modelin India’s 1949 Constitution. Copies of the U.S.Supreme Court reports are available to the9

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 proliferatedthroughout 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 constitutionalcourt.The effect of the Philadelphia Constitutioncontinues to be seen. Nigeria, the most populouscountry of Africa, has discarded the parliamentarysystem, which it inherited from Britain andwhich was incorporated into its IndependenceConstitution. In 1999, it adopted a new constitutionembodying presidential government andending years of military rule. American influencewas 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 theAmerican InfluenceAll 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 constitution-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 succeededin constructing a regime that balancedorder and liberty. This has led a large numberof foreigners to our shores to study Americanstylegovernment and to return home advocatingselected features of it. In many instances, thishas been made possible by scholarships providedby the American foundations and universitiesand 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. Constitutionhas been carried abroad by Americanswho have been called upon to serve as advisersin the writing of other constitutions. Americanshave helped draft the Liberian, Mexican, German,Japanese, and Zimbabwean constitutions.American scholars also provided ideas for constitutionalreform in the Philippines [and morerecently in Central and Eastern Europe and theMiddle East].The principal reason for the influence ofthe Philadelphia Constitution abroad, however,10

can be summed up in one word—success.America is the richest, freest, and most powerfulcountry in the world, with the longestlivedconstitution. The second oldest is Belgium’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 writingof 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 documents(Federalist Papers, Declaration of Independence,the Articles of Confederation, and the U.S. Constitution)resulted in the creation of a United States ofAmerica based on ideals of liberty and freedom.Photograph, page 7: Maciej Bronarski photographer, courtesyof The Royal Castle in Warsaw.The opinions expressed in this article are those of the authorand do not necessarily reflect the views or policies of the U.S.government.Issues of Democracy, IIP Electronic Journals,Vol. 9, No. 1, March 200411

Constitutionalism and Emerging DemocraciesBuilding Blocks for a Constitutionby Herman SchwartzNoted author and constitutional scholar HermanSchwartz examines the challenges facing draftersof the world’s newest constitutions. Schwartzelaborates on key building blocks to be consideredby drafters of constitutions such as governmentstructure, human rights protection, andprocedures for amendment.T HOSE WHO WRITE constitutionsfor emerging democracies face daunting challenges.First, they must write a document thatenables the society to decide difficult and divisivequestions peacefully, often under gravecircumstances. 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 ultimatelynot good for the nation.12

Moreover, a constitution is written at aspecific 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 protectedimmediately. When an authoritarianregime is ousted, the society inevitably experiencesa 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 difficultto do so later.Preliminary ConsiderationsFirst, should the constitution be written by anordinary legislative body or by a special constituentassembly? 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 preferable,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. Thedocument 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 illsuitedfor the long term, making changes difficultmay prevent future governments from dealingadequately 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 particularlyuseful after the first ten years, when atleast some of the problems created by the constitutionwill 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 matterssuch as economic stability, even thoughexperience shows that human rights rarelyimpede an effective response to these challenges.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 amendingarticles. It can only be found in the almost540 volumes of decisions that a powerful and13

solidly established U.S. Supreme Court hasissued over some 215 years. These decisionshave established our most fundamental constitutionalprinciples and rights, few of which canbe discerned from the bare text of the U.S. Constitution.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 constitutionshould be very detailed. Constitutionsthat include too much can block the necessaryflexibility. Deciding what should go into a constitution,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 BlocksSo-called horizontal and vertical structuralissues are the most difficult issues for theyinvolve the distribution of power. They arealmost always resolved amid political controversy,with short-term goals, particularly how toget and keep power, often dominant.An initial issue is whether to have a presidentialor 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 Americanmodel, 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 oftensubject 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 presidentnor 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 providevigorous leadership. The stability can,however, turn into rigidity, for an unpopular orineffective president cannot be easily removeduntil his or her term expires. Moreover, legislativestalemate and gridlock may result ifthe legislature is controlled by a different politicalparty. If this division continues, the governmentmay 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 legislatureand the executive—the judiciary of courseis independent but it stands outside the legislativesphere—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 governmentor prime minister who loses the confidenceof the parliament can be dismissed by it.14

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 systemis better. The choice will often depend onhistory, the needs of the moment, and other factors.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 entirelyparliamentary. All the former non-Baltic componentsof 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 components,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 appointments,or to matters directly affecting the componentsthemselves.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 governmentlike regions or national units? How muchindependent authority should be allocated tocities, towns, and villages? The range of possibilitiesis wide, from highly autonomous units tototal central control. There is good reason toallow as much autonomy to regional and localunits 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 JudiciaryHistory has established the need for an independentjudiciary that can keep the otherbranches from transgressing constitutional limits,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 usuallyserve 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 tradition,and partly because they mistrust the existingjudiciary.Whatever system is chosen, the constitutionmust explicitly establish the courts’ authorityto annul laws and other norms and actsinconsistent with the constitution. If there is a15

special constitutional court, it must not be burdenedwith extraneous responsibilities. Much ofits work will be controversial, for one of itsmajor responsibilities, particularly in the earlyyears, is to establish the constitutional boundariesamong 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 occasionsfor such attacks by giving the constitutionaltribunals non-judicial or non-constitutionaltasks, 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 relevantlanguage 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 guaranteed.The judiciary must be an independentbranch of government and not be under theMinistry of Justice. The judiciary should controlits 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 RightsIt is now established that the constitution mustprotect human rights and that the courts, particularlythe special constitutional tribunals,should play a major role in providing that protection.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 problems.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 institutionsto make those rights enforceable. The constitutionmust specifically provide that personswho claim that their rights have been violatedhave ready access to a court, and that if a violationhas 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 governmentis doing its job properly and acting inthe best interests of the people. The constitutionshould 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 a16

measure like this is unwise, for many governmentsresist such measures or try to weakenthem substantially. Few public officials are eagerto expose their activities to public scrutiny.Adopting the ConstitutionThe final question is how should the constitutionbe adopted? By the special constituentassembly discussed earlier? By the regular parliament,as in many European countries? By thegeneral public? Should the public’s involvementtake 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 beby the people, that has not been the universalapproach.Writing a constitution is an experiment, theresults of which will always be significantly differentfrom what was intended and anticipated.Moreover, the success of a constitution is usuallythe 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 constitutionsfor emerging democracies can make a difference.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 Washington,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).The opinions expressed in this article are those of the authorand do not necessarily reflect the views or policies of the U.S.government.Issues of Democracy, IIP Electronic Journals,Vol. 9, No. 1, March 200417

Constitutionalism and Emerging DemocraciesToward Constitutional DemocracyAround the WorldAn American Perspectiveby A. E. Dick HowardProfessor of law and public affairs A.E. DickHoward delivered remarks on “Constitutionalism,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 constitutionhas had. As the people of Iraq movetoward self-rule, questions of how to institutionalizethe principles of democracy enshrined in awritten constitution are paramount.IN RECENT YEARS I have had the privilegeof sitting with constitution makers in countriesseeking to lay the foundations of constitutionalliberal 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 andcultures.This experience in comparative constitutionalismhas drawn me to ask questions aboutthe extent to which one country can assist in, ormake judgments about, another country’s constitutionaljourney. How well do constitutionalideas travel, especially across the boundariesof 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: what18

elevance does the American constitutionalexperience have for other countries?The Experience of Central andEastern EuropeTo sharpen these questions, consider the experienceof the countries of Central and EasternEurope. After the collapse of communism, eachof those countries set out to write new constitutionsand to design institutions thought to promoteconstitutional 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 Centraland 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 WesternEurope 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 EasternEurope have fashioned constitutional systemswhich in many obvious ways are modeledupon Western Europe. For example, Germany’sConstitutional Court has proved the inspirationfor the creation of constitutional courts throughoutCentral 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 documentsas United Nations conventions and toregional arrangements such as the EuropeanConvention on Human Rights and the Organizationfor 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 constitutionmakersin 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 communistera, 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 pullof western models, especially in light of the pervasivewish of countries in Central and Eastern19

Europe to “rejoin” the family of Europe, inparticular, 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. ThroughoutCentral and Eastern Europe, one sees, forexample, parliamentary systems rather than anAmerican-style congressional system, presidentialsystems that look more to WesternEurope (such as France) rather than to the UnitedStates, 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 AmericanConstitutionalism: A HistoricalPerspectiveThe American revolutionary period was a timeof remarkable innovation and accomplishment.Aware of their special place in history, America’sfounders 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 Americanconstitutionalism 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 popularin Paris, undertook to spread news of whatwas happening in America, as did his successor,(future President) Thomas Jefferson. TheVirginia Declaration of Rights (1776) influencedthe 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 mightlook like in Europe. By this time, French philosopherand historian Alexis de Tocqueville’sDemocracy in America had heightened interestin the American experience, especially federalismand 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., federalismand constitutional review), reappeared inGermany’s Basic Law of 1949. In South America,the age of Simon Bolivar brought constitutionswhich were often modeled heavily on theUnited States Constitution.20

Political evangelism in the early twentiethcentury. The most famous effort to export Americanideas 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 Americanstyleconstitution, but he did emphasize selfdetermination,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, workinghard 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 foreignpolicy. The occupying allied powers had asay, of course, in shaping German post-war policy.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, includingthe 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 Mediterraneancountries of Greece, Portugal, and Spain.Spain’s 1978 Constitution is especially importantas 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 makingand democratization in such places as postcommunistcountries has been undertaken bothby public and private bodies. Typically the aidhas taken the form of technical assistance, suchas helping parliaments to update their processes,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 Relevanceof the American ConstitutionalExperienceConstitutionalism 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 the21

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 constitutionalismcannot be exported to other cultures.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 experienceis relevant and useful find limits in theUnited States Constitution as a model for foreigndrafters. The document was written in the18th century, reflects the insights of that era,and has required formal amendment (notablythe post-Civil War amendments) and extensiveMembers 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.judicial interpretation. Also, the United StatesConstitution is, in a sense, an incomplete document,in the sense that its framers assumed theexistence and function of the states and thereforeof 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 problemsof comparative constitutionalism ought notto be turned into categorical barriers. The usefulnessof the American experience does not liein the formal text of the United States Constitution.It is to be found in the general principleswhich are reflected in American constitutionalismand, further, in the practical experience ofmaking constitutional democracy work.22

Factors Bearing on theProspects for ConstitutionalLiberal DemocracyIt is not enough that a society be democratic. Itmust also be liberal and constitutional. Democracyseeks 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 principlesespoused 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 constitutionalnorms, even when that means negating amajoritarian judgment. The following factorsare critical to the success of constitutional liberaldemocracy.A country should have sufficient militarystrength, as well as social and economic stability,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 circumstancesin which citizens have practiced thenorms 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 legislativeprocess is overturned on constitutionalgrounds by a court accept the principle of constitutionallimits on government.An open society, including free and responsiblepress and media, goes hand in hand withconstitutionalism and democracy. There shouldbe the means for open and effective communicationamong the people and between them andtheir government.Civil society should flourish. Private organizations—politicalparties, trade unions, interestgroups, 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 collectivevoice 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 society.There should not be “insiders” and “outsiders.”If the state is not largely homogeneousin terms of religion, language, ethnicity, or culture,then there needs to be a widely felt commitmentto 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 fragmentinginto camps of hate and hostility.Ultimately, history, culture, and circumstancewill tell us much about the prospects for23

constitutionalism, democracy, and the rule oflaw in any country. Those who hope to see thesevalues prosper in newly established democraciesmust understand those countries, theirpeoples, histories, and cultures. An example isthe argument over the extent to which Islam is,or is not, ultimately compatible with constitutionalliberal 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 transitionsfrom 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 Professorof Law and Public Affairs and Roy L. and RosamondWoodruff Morgan Research Professor of Law at theUniversity of Virginia. He is widely acknowledged asan expert in the fields of constitutional law, comparativeconstitutionalism, and the U.S. Supreme Court.Before coming to Virginia, Professor Howard servedfor two years as law clerk to U.S. Supreme Court JusticeHugo L. Black. Howard has briefed and arguedcases before state and federal courts, including theSupreme Court of the United States. Often consultedby constitutional draftsmen in other U.S. states andabroad, Professor Howard has compared notes withrevisors at work on new constitutions in such placesas Brazil, the Philippines, Hungary, Poland, andSouth Africa.Note:1. Refers to a charter granted by King Andrew II of Hungaryin 1222, which stated the basic rights and privilegesof the Hungarian nobility and clergymen and thelimits of the monarch’s powers.The opinions expressed in this article are those of the authorand do not necessarily reflect the views or policies of the U.S.government.Photograph page 22: AP/WWP, Brennan LinsleyIssues of Democracy, IIP Electronic Journals,Vol. 9, No. 1, March 200424

Constitutionalism and Emerging DemocraciesThe Importance ofJudicial IndependenceRemarks by Sandra Day O’ConnorAssociate Justice, Supreme Court of the United StatesBefore the Arab Judicial Forum, Manama, BahrainSeptember 15, 2003ALEXANDER 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 legislativeand 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 appearanceof zealous adherence to the Rule of Law beguaranteed to the people. As former U. S. PresidentWoodrow 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 independenceto the effective functioning of the judicialbranch.The principle that an independent judiciaryis essential to the proper administration ofjustice is deeply embedded in Arab legal institutions.Virtually every Arab constitution guaranteesjudicial independence. For example, theConstitution of the Kingdom of Bahrain provides,in article 104, that “The honor of thejudiciary, and the probity and impartiality ofjudges, is the basis of government and the guaranteeof 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 independenceof the judiciary….” Article 65 of theEgyptian Constitution provides: “the independenceand immunity of the judiciary are twobasic guarantees to safeguard rights and liberties.”Jordan’s Constitution, in article 97, proclaimsthat “Judges are independent, and in the25

exercise of their judicial functions they are subjectto no authority other than that of the law.”We see the same fine notions embodied inthe six Bangalore Principles of Judicial Conduct,developed under the auspices of the UnitedNations to further the prospects of strengtheningjudicial integrity. The very first principlereads: “Judicial independence is a pre-requisiteto the rule of law and a fundamental guaranteeof a fair trial. A judge shall thereforeuphold and exemplify judicial independence inboth its individual and institutional aspects.”The Cairo Declaration on Judicial Independence,formulated in the Second Arab JusticeConference in February 2003, “agree[d] that anindependent judiciary is the main pillar supportingcivil liberties, human rights, comprehensivedevelopment 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 essentialto 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 judicialbranch. 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 arbitrarinessis greatly diminished. When the power tomake laws is separated from the power to interpretand apply them, the very foundation of theRule of Law—that controversies are adjudicatedon 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 authorityprotected from the influence, overt or insidious,of other government actors. In the words ofthe Bangalore principles, judicial independencehas both “individual and institutionalaspects.”Addressing first the independence ofindividual judges, two avenues for securingthat independence reveal themselves: First,judges must be protected from the threat ofreprisals, so that fear does not direct their decision-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’s26

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 candidates’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 recommendsthat “[t]he election of judges shall befree of discrimination on basis of race, color,sex, faith, language, national origin, social status,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 judicialresponsibility.” Heeding these recommendationswill serve not only the need to chooseeach candidate on merit, but will temper anyinstitutional bias that might arise if the judiciarywere entirely homogenous.Adherence to the principles of judicialindependence is not without difficulties. A particularlytroubling issue is the tension thatarises, once a judge is appointed, between independencefrom political pressure and independencefrom the taint of personal interest. Protectionfrom influence exerted by other branchesof 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-administeredethical 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 hasa code of conduct that promotes adherence tothe highest ethical norms. The very first canonof the Code of Conduct for federal judges admonishesjudges to “uphold the integrity andindependence of the judiciary.” As the Code ofConduct explains, “[a]n independent and honorablejudiciary 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, or27

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 impropriety,but also the appearance of impropriety,if public confidence in the judiciary is to bemaintained. Thus, the Code of Conduct for federaljudges provides that judges should refrainfrom conduct that would create a perceptionthat the judge’s ability to carry out his or herjudicial responsibilities with integrity, impartiality,and competence is impaired. By insistingthat 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 values:independence, impartiality, integrity, propriety,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 protectionfrom more systemic influence from otherparts of government. A fundamental aspect ofthis institutional independence is ensuring thatthe judiciary receives adequate funding. Justas salary protection is necessary to individualjudges’ independence, overall financing issuescan 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 bodies.”The Cairo Declaration urged governmentsto “guarantee the financial independence ofjudiciaries.” Ensuring adequate and unconditionalfinancing, in accordance with these Declarations’recommendations, is a crucial step ininsulating the judiciary from improper influence.A more complicated issue is that of theinterplay between executive officials and thejudiciary. I mentioned earlier the tension thatexists between independence from other governmentactors on the one hand and, on theother, ensuring that judges do not compromisetheir own independence by succumbing to personalbias or corrupting influences. In the UnitedStates, 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 elsewhere.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 the28

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, provokeda 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 exigenciesof 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 judiciaryis 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 theU.S. Supreme Court by President Ronald Reagan.She took her seat September 25, 1981.Issues of Democracy, IIP Electronic Journals,Vol. 9, No. 1, March 200429

Constitutionalism and Emerging DemocraciesDemocratic Constitution MakingThe South African Experienceby Vivien HartSouth 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 constitution.This article has been excerpted fromSpecial Report: Democratic Constitution Making,a publication of the United States Instituteof PeaceDEVELOPING 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 constitutionalconversation. 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 constitutionaltext. 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 constitutionmaking and set the context for evaluatingits general potential and problems.Negotiations on ProcessIn all, it took seven years, from 1989 to 1996,to achieve the final constitution. Almost fiveyears elapsed between the first meeting30

etween African National Congress leader NelsonMandela 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, agreementson process were negotiated in private andpublic sessions between former adversaries.These included an agreement to negotiate aboutconstitutional negotiations; prolonged argumentsabout the form the constitution-makingprocess should take; and 1993 agreements onprocedures and, ultimately, agreement on aninterim constitution including principles andprocedures binding on the final constitutionmakingprocess.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 ConstitutionalAssembly.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 constitutionmaking. Now their elected representativesin the assembly reached out to educatethem and invite their views. The educationaleffort included a media and advertising campaignusing newspapers, radio and television,billboards, and the sides of buses; an assemblynewspaper with a circulation of 160,000; cartoons;a Web site; and public meetings; togetherthese 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 participatorycampaign, committees of the assemblydrafted a new constitution within the parametersattached to the 1994 interim constitution;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 ConstitutionalCourt reviewed the text; the court thenreturned the text to the assembly for amendments,which were made in October. In November,the court gave its final certification and inDecember, President Mandela signed the constitutioninto law.Establishing Dialogue and TrustThe South African process took time. It wasphased. It benefited from an interim constitutionthat allowed the dialogue of transition tocontinue. Participation was invited at a chosenmoment rather than throughout and then creativityand resources were committed to facilitatinga 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 importantwas the fact that South Africa had a preexistingcivil 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 violence;a willingness by all concerned to takesome bold steps; and a combination of negotiationin private over some of the most difficultissues and unprecedented public involvement.Only a considerable commitment of timeand resources makes genuine public participationpossible. 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 at31

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 adequatelevel of trust between elites and amongthe general public to enable a constitutional conversationto 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 varietyof 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 previouslySouth African President Nelson Mandela, center, anddeputy presidents, Thabo Mbeki, left and F. W. de Klerk,right, celebrate the new constitution, May 8, 1996.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 ConstitutionalAssembly, confirm that the publicwill participate where they see the issues andoutcomes 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 Constitutionalismand 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 Dobrowolsky,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. BangashIssues of Democracy, IIP Electronic Journals,Vol. 9, No. 1, March 200432

Constitutionalism and Emerging DemocraciesConstitutionalism in the Muslim WorldA Conversation with Noah FeldmanIn this interview, law professor and Islam expertNoah Feldman reflects on his experiences withtwo of the world’s newest constitutional processes.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 andthe Struggle for Islamic Democracy, you argue thatIslam and democracy are not incompatible andthat Islamic values and democratic ideals can coexistin 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 democracy.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 theoreticallevel, a growing number of scholars andordinary people in the Muslim world argue thatthe traditions of Islam and democracy aren’tincompatible and can be made to work together.33

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 sovereignin 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 possibleto 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 democracywe 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 figuringout institutions within the constitution thatwill mediate between Islamic and democraticvalues when they might appear to outsideobservers to be in contention with each other.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.AfghanistanQuestion: In Afghanistan, what kinds of structuralissues did the drafters face?Dr. Feldman: Those kinds of issues are importantin 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 questionof when to apply Islamic law. They came upwith a provision in the constitution, which originallyappeared in the 1906 Iranian draft constitution,stating that no law made by the peopleshall be contrary to Islam.34

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 adjudicatedit. 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 possibilityof working, but there are certainly noguarantees. It’s an experiment with a body thatwill be able to mediate between those two differentsets 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 constitution.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 particularprovisions of Islamic law were seen to beincompatible with their equality.Maybe the court will just interpret theShariah 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 constitutionalcourt to deal with it.Question: Women’s groups have expressed a concernthat 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 delegates]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.IRAQQuestion: Let's move on to Iraq. The Iraqi GoverningCouncil adopted a so-called "interim constitution"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 duringthe 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 constitutionwill go into effect as written, or whether itwill be changed. As of right now, the GoverningCouncil members have agreed to abide by itafter June 30.35

Question: Are there indications that there willbe a lot of pressure to change the interim constitution?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 letterto the United Nations Special Representative,Lakhdar Brahimi was that the three-manpresidency created by the transitional constitutionis 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 NationalAssembly has the authority to amend thisdocument. He specifically implied that hewould like to see an amendment to the threemanpresidency.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 threemanpresidency 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 freedom?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 exhaustivebill of human rights. It guarantees equalityfor 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 AdministrativeLaw states “The National Assembly shallbe constructed in such a way as to ensure that25 percent of the representatives to the NationalAssembly are women.” Now, there is somedebate over whether that is a strict quota orwhether that is a target to aspire to. The languageis somewhere in between, but I would saycloser to an express requirement that theNational Assembly be made of at least 25 percentwomen.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 permanentconstitution 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 identityand come out of Kurdistan.Question: If the constitutions in Iraq (eventually)and in Afghanistan enjoy some success and foster36

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 systemhas 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 governmentalstructure in majority-Muslim countries.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 participatedemocratically. They never got the chanceto prove that one way or the other, though,because the military government called off theelections, 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 governingvery democratically.Question: So, once they came to power, they kindof moderated themselves?Dr. Feldman:In Turkey, they were relatively moderatewhen 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 reelected,you can’t govern in a way thatis going to alienate large segments of the population.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 UniversitySchool of Law in New York City. A formerSupreme Court clerk, he earned a doctorate in Islamicthought 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.The opinions expressed in this article are those of the authorand do not necessarily reflect the views or policies of the U.S.government.Photograph page 34: AP/WWP, B. K. BangashIssues of Democracy, IIP Electronic Journals,Vol. 9, No. 1, March 200437

B i b l i o g r a p h yFurther Reading on ConstitutionalismBailyn, Bernard.To Begin the World Anew:The Geniusand 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: SelectedEssays 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:TimesBooks: 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 UniversityPress, 2001.Finer, S.E. (Samuel Edward), et. al. eds.Comparing Constitutions. Oxford: ClarendonPress; New York : Oxford UniversityPress, 1995.Hassen, Ebrahim.The Soul of a Nation: Constitution-Makingin South Africa. Oxford: Oxford UniversityPress, 1998.Henkin, Louis et. al., eds.Constitutionalism and Rights: The Influenceof the United States Constitution Abroad.New York: Columbia University Press, 1990.Hoffman, Daniel N.Our Elusive Constitution: Silences, Paradoxes,Priorities. Albany: State University ofNew York Press, 1997.38

Howard,A.E. Dick.Democracy’s Dawn: A Directory of AmericanInitiatives on Constitutionalism, Democracy,and the Rule of Law in Central and EasternEurope. Charlottesville,Virginia: UniversityPress 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 Questfor 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.Schwartz, Herman.The Struggle for Constitutional Justice in Post-Communist Europe. Chicago: University ofChicago Press, 1999.Seidman, Louis Michael.Our Unsettled Constitution: A New Defense ofConstitutionalism 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.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 Constitutionin History and Politics. Chicago : Universityof Chicago Press, 2002.Quinn, Frederick.Democracy At Dawn: Notes From Poland and PointsEast. College Station,Texas:Texas A&M UniversityPress, 1998.Issues of Democracy, IIP Electronic Journals,Vol. 9, No. 1, March 200439

I n t e r n e t S i t e sInternet Sites on ConstitutionalismInternet 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.Comparative Constitutional Law Guidehttp://www.ll.georgetown.edu/intl/guides/compcon/print.htmlCreated by the Georgetown UniversityLaw Library.ABA: Central European and EurasianLaw Initiativehttp://www.abanet.org/ceeli/home.htmlAmerican Bar Association public service project toadvance rule of law by supporting the legal reformprocess in Eastern Europe and the New IndependentStates of the former Soviet Union.Charters of Freedomhttp://www.archives.gov/national_archives_experience/constitution.htmlOnline exhibit of the U.S. Constitution,presented by the U.S. National Archives.Comparing Constitutions and International ConstitutionalLaw, A Primerhttp://www.oefre.unibe.ch/law/icl/compcons.htmlThe Constitution Finderhttp://confinder.richmond.edu/Links to the constitutions of most nations, ina variety of languages and in English.The Constitution of the United Stateshttp://www.law.emory.edu/FEDERAL/usconst.htmlhttp://www.thisnation.com/constitution.htmlConstitutional Law: An Overviewhttp://www.law.cornell.edu/topics/constitutional.htmlDescriptive essay of constitutional law with linksto U.S. laws and other sources.40

Constitutional & Legal Policy Institute (COLPI)http://www.osi.hu/colpi/indexe.htmCOLPI supports democratic legal reform in thecountries of Eastern Europe, Central Asia, andMongolia.International Journal ofConstitutional Lawhttp://www3.oup.co.uk/jnls/list/ijclaw/default.htmlEstablished in 2003, presents current legalscholarship from the international community.The National Constitution Center in Philadelphiahttp://www.constitutioncenter.orgA new museum in Philadelphia explaining theConstitution, encouraging citizen participationand providing educational resources.Researching Constitutional Law on the Internethttp://www.lib.uchicago.edu/~llou/conlaw.htmlA comprehensive Web-based bibliographyU.S. Constitution Onlinehttp://www.usconstitution.net/Selected U.S. Law SchoolsColumbia Universityhttp://www.lawschool.columbia.eduCornell Universityhttp://www.lawschool.cornell.eduHarvard Universityhttp://www.law.harvard.eduNew York Universityhttp://www.law.nyu.eduStanford Universityhttp://www.law.stanford.eduUniversity of Chicagohttp://www.law.uchicago.eduUniversity of Michigan—Ann Arborhttp://www.law.umich.eduUniversity of Pennsylvaniahttp://www.law. upenn.eduUniversity of Virginiahttp://www.law.virginia.eduYale Universityhttp://www.law.yale.eduDesigned for use by high school debate students.U. S. Institute of Peace: Constitution-MakingWeb Linkshttp://www.usip.org/library/topics/constitution.htmlThese links complement the Institute’s Rule of LawProgram and its project on Constitution-Making,Peacebuilding, and National Reconciliation.Issues of Democracy, IIP Electronic Journals,Vol. 9, No. 1, March 200441

E 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 EDemocracyi s s u e s o fC ONSTITUTIONALISMANDE MERGINGDEMOCRACIESM A R C H 2 0 0 4V OLUME9N UMBER 1