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Published online by Cambridge University Press: 02 September 2013
This paper draws on my report for The Ford Foundation, assessing the recent Project on the Comparative Study of Constitutionalism, administered by the American Council of Learned Societies. I am particularly grateful to Shepard Forman for his support and encouragement.
2. The complex relationship between constitutionalism and democracy is analyzed by Murphy, Walter F., “Constitutions, Constitutionalism, and Democracy,” to be published in Greenberg, Douglas, Katz, Stanley, and Wheatley, Steven, eds., Constitutionalism and Democracy (New York: Oxford University Press, forthcoming in 1992).Google Scholar
3. Other nations would of course contest the view that Americans have any special proprietorship over constitutionalism, and with good reason. Framers in the newly independent nations of Eastern Europe, for example, seem to be looking for inspiration and guidance as much to Germany and France, not to mention their own histories, as they do to the United States.
4. This whole question of constitutional borrowings is only dimly understood. Fred Riggs has shown how dismal has been the experience of Latin American countries that have tried to adopt the presidential system on the North American model. We tend to believe that a constitution, to succeed, must grow naturally out of the soil of a nation's political experience. On the other hand, there is the example of Japan's relatively positive experience over the past forty-odd years with a constitution imposed by a conquering army bent on radical reform.
5. Remarkably the history of American involvement in constitution-making abroad has never been told in any adequate way. Carl J. Friedrich provides a sketch, in a slender volume of lectures entitled The Impact of American Constitutionalism Abroad (Boston University Press, 1967), but it focuses on the idea and forms of American constitutionalism, rather than the efforts of Americans to carry these ideals abroad. Louis Henkin and Albert Rosenthal have edited a collection of essays on the topic (Constitutionalism and Rights: The Influence of the United States Constitution Abroad [Columbia University Press, 1990]), some addressed to “ideas and institutions,” others treating particular countries (Germany, Japan and Korea, the Philippines, Poland, sub-Sahara Africa and South Africa), and one, by Henkin, on international human rights. There are, of course, other useful books and articles on American involvement on framing efforts in specific countries (for references, see the bibliographical essay by Andrzej Rapaczynski, published in the Henkin and Rosenthal volume). But I know of no major comparative or analytical work on this subject, treating the phenomenon in general.
6. Goldwin, Robert A. and Kaufman, Art, eds., Constitution Makers on Constitution Making (AEI, 1988)Google Scholar; and Goldwin, Robert A., Kaufman, Art, and Schambra, William A., eds., Forging Unity Out of Diversity (AEI, 1989).Google Scholar
7. Henkin, Louis and Rosenthal, Albert J., eds., Constitutionalism and Rights: The Influence of the United States Constitution Abroad (Columbia University Press, 1990).Google Scholar
8. See, by Cutler, , “To Form a Government,” Foreign Affairs, 1980 CrossRefGoogle Scholar; and “Party Government Under the Constitution,” University of Pennsylvania Law Review, December 1985. Both are reprinted in Robinson, Donald L., ed., Reforming American Government (Westview, 1985).Google Scholar By Sundquist, , see Constitutional Reform and Effective Government (Brookings, 1986)Google Scholar; and “Needed: A New Political Theory for the New Era of Coalition Government in the United States,” prepared for delivery at the APSA Annual Meeting, 1988, and published in Political Science Quarterly (1989).
9. See also a Symposium, entitled “Divided Government and the Politics of Constitutional Reform,” in PS: Political Science & Politics (December 1991), containing brief articles by Mark Petracca, David May-hew, Gary Jacobson, Morris Fiorina, James Thurber, and others.
10. The device is not well exploited where constitutionalism is concerned. It presents an editorial by John Greenwald, entitled “Exploring the Constitution” (originally published in Time magazine, July 1987). Highly celebratory, it is not a sensitive or well-informed piece of writing.
11. The analytical framework cited by the project is academic, and somewhat special even by the standards of academia. It is based on models of bargaining developed by T. C. Schelling and others. The investigators describe the project as a whole as “social scientific, not consultative.” They add that it will “not be involved in advising the countries to be studied about legal and constitutional choices.” It is directed by outstanding scholars, and it will draw on the excellent holdings at the University of Chicago (including one of the “top ten or twelve” Slavic collections in the country, according to the project prospectus).
12. Great Britain and Israel seem to soldier along without written constitutions, but both are deeply committed to the rule of law, and both practice constitutionalism to a high degree. If they are exceptions, they prove the rule.
13. To mention just a few examples of current American concern: How can presidents be kept from abusing the “war powers”? Do citizens have economic and social rights, and if so, how can they be secured? How can citizens hold the government of a huge nation to account for its performance? How ought responsibilities be shared among layers of a federal system, and how can such sharing be maintained?
14. Akita, George, Foundations of Constitutionalism in Modern Japan (Harvard University Press, 1967).Google Scholar
15. Sadly, some purveyors of constitution-drafting skills prey on this mentality. Albert P. Blaustein, professor of law at Rutgers University who has been a paid consultant on constitutional drafting in a number of countries, has written, “By following the United States model, all of the constitution writers after 1787 could legitimize their revolutions, their independence, their nationhood” (Phi Kappa Phi Journal, Fall 1984, p. 16). If only it were that simple.
16. My impression is confirmed by recent correspondence with Walter Murphy of Princeton, Martin Shapiro of UCal-Berkeley, William Riker of the University of Rochester, and J. Woodford Howard of Johns Hopkins, among other authorities in this field. When I wrote Murphy and Shapiro last year to ask where a student I was advising might pursue the comparative study of constitutionalism at the graduate level, both answered that there was no American university presently offering graduate-level instruction in that field.
17. Perhaps “renewal” would be a better word. Carl J. Friedrich and others in the 1930s, '40s and '50s were turning out treatises on constitutionalism (Friedrich's Constitutional Government and Democracy), criticizing the performance of the American system (William Yandell Elliott's The Need for Constitutional Reform and Thomas K. Finletter's Can Representative Government Do the Job?), and helping new nations to write constitutions. As an academic field, however, the study of comparative constitutionalism has lapsed since then.
18. Dick Howard, A. E., professor of law at the University of Virginia, has compiled a volume, called Democracy's Dawn: A Directory of American Initiatives on Constitutionalism, Democracy, and the Rule of Law in Central and Eastern Europe (University Press of Virginia, 1991).Google Scholar Concentrating on Bulgaria, Czechoslovakia, Hungary, Poland, and Romania (leaving aside Yugoslavia, Albania, the Baltics, and the Soviet republics), it devotes nearly 200 pages to a catalogue of organizations involved in this work, including government agencies, foundations, learned societies, university centers, ethnic organizations, and groups that do programs in a particular country. Appendices provide a guide to programs by country and by types of assistance (conferences, exchange programs, grants, publications, reference services, and technical assistance). Barbara Perry, political scientist from Sweet Briar College, presented a paper at the Annual Meeting of the American Political Science Association, September 1991, drawing largely on Howard's data to analyze the participants involved in constitutional efforts abroad. Her main finding is that these consultants have tended disproportionately to be males and trained in the law, rather than the social sciences.
19. In focusing on Eastern Europe, I do not mean to denigrate the valuable contribution that some Americans have made to the establishment of democratic governance in the Third World. One example is Namibia. Several Americans associated with the Lawyers Committee for Civil Rights and the Lutheran World Federation monitored the deliberation of the constitutional convention in 1989–90. The Lutherans in particular, having developed strong ties with Namibian leaders by helping them deal over the years with political trials and other forms of oppression, were able to offer useful counsel about electoral systems and to explain how rights work in terms the Namibians could understand. (Source: Ralston Deffenbaugh, Harvard-trained lawyer who now heads the Lutheran Immigration and Relief Service [LIRS] in New York.) Such work, built on carefully laid foundations of mutual trust, goes far beyond “technical assistance.”
20. Forman, Shepard, “Strategy for Private Philanthropy in Promoting the Development of Democratic Institutions in Eastern Europe,” pp. 4–9.Google Scholar Forman's paper was prepared for presentation at the Annual Research Conference of the Association for Public Policy Analysis and Management (APPAM), October 24–27, 1991, in Washington, D.C.
21. LC:CRS is not unique in providing material support. The Center for Democracy, with a small grant from the National Endowment for Democracy, has assembled and distributed Libraries of Democracy (packets of books, articles, videos and other materials) for distribution to organizations in Central and Eastern Europe.
22. Louis Fisher, of the LC:CRS staff, an outstanding political scientist, has joined several of these delegations. People at CEELI tell me that Fisher's intimate knowledge of how American political institutions developed and how they now operate is intensely interesting to politicians, lawyers, and law students in places like Bulgaria and Romania.
23. Note that the first constitutions of the American states, in reaction against British “tyranny,” placed dominant power in the legislatures. It wasn't until the mid-1780s that the American doctrine of separation of powers began to insist on checking the power of legislative assemblies, as well as the other branches.
24. For financial support, CEELI credits, besides the ABA, the National Endowment for Democracy, United States Information Agency and the International Academy of Trial Lawyers. Because its experts work pro bono, because its paid staff is small and works from a modest suite in the ABA building in Washington, and because hospitality costs in the host countries are minimal, CEELI has been able to operate inexpensively.
25. In an article in The University of Chicago Law Review (Spring 1991), entitled “Constitutional Politics in Poland: A Report on the Constitutional Committee of the Polish Parliament,” Rapaczynski suggests that the effort to draft a constitution in 1990 may have been premature (see, esp., pp. 606–08, 630–31).
26. Founded at the law school in Bologna, Italy, it recently moved to Venice. J. Woodford Howard, Jr., of Johns Hopkins University, tells me that American legal scholars have discussed joining this effort, but no law school has been willing to take the lead.
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