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March 9, 2015

Magna Carta: Drafting Modern Constitutions

Magna Carta: Drafting Modern Constitutions, feat. Jeffrey Rosen, David Fontana, Cornelius Kerwin, A. E. Dick Howard. From the Library of Congress in Washington DC, 2014/12/09. Stable URL (http://www.loc.gov/today/cyberlc/feature_wdesc.php?rec=6613)

Click here to watch the video.

Jeffrey Rosen: Ladies and gentlemen, welcome to our next panel, Drafting Modern Constitutions. I am Jeffrey Rosen. I am the president and CEO of the National Constitution Center, and I bring greetings to the Library of Congress from this wonderful sister institution. The National Constitution Center in Philadelphia for those of you who have not yet encountered U.S. is the only institution in America chartered by Congress to disseminate information about the U.S. Constitution on a nonpartisan basis. And this is a very exciting time for the Constitution Center because, on Monday, Bill of Rights Day, we are about to open an exciting new exhibition related to the topic of our panel today that will display one of the twelve original copies of the Bill of Rights. George Washington sent 13 copies to the states and one to the federal government. Twelve survived, and this extraordinarily rare copy will be displayed along with a rare Declaration of Independence generously lent by David Rubenstein who we’ve just heard some from as well as the first public printing of the Constitution, and it includes a remarkable interactive exhibit that you can access online that we’ve developed along with Constitute, the leading collector of global constitutions, and Google. And using this interactive you can click on any provision of the Bill of Rights, see its historical antecedents, including the Magna Carta and the Revolutionary Era state constitutions, and then trace the spread of that liberty across the globe. So, for example, the Japanese Constitution essentially cut and paste the American Fourth Amendment. This is no coincidence. General MacArthur was drafting a Constitution and I guess took some scissors and some paste and took the Fourth Amendment and put it in the Japanese document. And using our interactive you can compare the text of the Japanese and the American prohibition against unreasonable searches and seizures and see the textual similarities and differences. You can pick any right and see it spread in time and space and see constitutions in Latin America adopting or rejecting the American model and do a close textual comparison. And it’s a thrilling resource. But that’s not all. There’s one final piece of this puzzle which is that Google has just granted a generous grant, and we are going to create the world’s first constitution drafting lab where students and international visitors and constitution makers from around the world can come to the National Constitution Center and visit online and look at the best world’s constitutions and decide what is most relevant to their countries. So that’s why our discussion today with the leading experts in comparative constitutionalism is so exciting to me because I am eager to learn both about how much the U.S. Constitution has, in fact, influenced constitutions abroad over time and how we organizations like the Library of Congress and the Constitution Center can be convening spaces that will allow on a nonpartisan basis constitution drafters from around the world to have access to the best U.S. and other resources. So I want to jump right into this fascinating topic and, first of all, welcome my dear colleague, David Fontana, from GW Law School as well as Cornelius Kerwin who is the president of AU and Dick Howard who is the Miller Professor at UVA. David, I’m just going to jump right in and ask the obvious question, when constitution makers from abroad are drafting constitutions, do they tend to look to the U.S. or not? And, basically, how influential has the U.S. Constitution been in the drafting of foreign constitutions?

David Fontana: I think very influential in theory, less influential in practice. I think in — I think people in other countries think of constitutions as really our greatest export. I don’t think it’s McDonald’s. I don’t think it’s Facebook. I think they think of constitutions as really a uniquely American creation. So I think they’re very much inspired by the fact that we wrote down our most significant commitments and that we’re still living under them several hundred years later. But our Constitution despite all of its majesty and its beauty is an 18th-century constitution. We live in a 21st century world, so I think a lot of specific issues that have come up that have been addressed by later constitutions are looked to by people in other countries. So take for instance the Internet. It might surprise you James Madison didn’t tweet a lot. He didn’t have access to Gmail. Our Constitution doesn’t talk that much about the Internet. More recent constitutions do. So I think other countries tend to look to our Constitution for some general principles, and sometimes when dealing with more specifics they often look to more recent constitutions.

Jeffrey Rosen: Professor Kerwin, there are a couple examples of the U.S. Constitution influencing European ones. We did a wonderful 200th anniversary of the Norwegian Constitution, and they looked very closely to James Madison and separation of powers and judicial review. Are there any other constitutions in particular that the U.S. has influenced?

Cornelius Kerwin: Well, I mean, I would go with David’s point. I mean, the ability, our ability to trace the type of progeny you’re looking for I think is severely limited by the fact that these documents have developed at different times in the political histories of the countries that we are — we are attempting to talk about. The interesting thing for me, and it’s an outgrowth of what was just said, is the ability of constitution makers around the world to anticipate some of the second, third, and fourth generation issues that their country is going to go through. Just as James Madison didn’t tweet, Madison probably didn’t anticipate the Pension Benefit Guarantee Corporation or the FAA. And in my work the reason why I think I was honored to be asked to join you today is that I look at those things that the founders could not have possibly imagined would have developed in a political system like ours. But now we’re drivers in the way we conduct our affairs. And our struggle, which will be the struggle of any developing democracy, is the ability to ensure that constitutional principles of the sort that Justice Breyer and David talked about earlier can be effectively articulated and indeed influence things like contemporary rulemaking by administrative agencies, the means by which those agencies take those rules and implement them and make them meaningful in our lives and how those agencies then resolve disputes because — I wrote a book on rulemaking, and I tried to convince a field that was focused almost entirely on Congress, the presidency, and to some extent the courts that so much of the action of the American public policy process had shifted into institutions that had to adapt, adopt, and somehow graft on to their behaviors, usually through secondary legislative devices, the principles that have made our Constitution as resilient as it has been over the years. So I don’t find it easy to point to documents around the world that are replicas of ours, and I wouldn’t expect to. As David said, in years to come.

Jeffrey Rosen: Dick, we’ve heard that James Madison didn’t tweet. And, of course, there’s a debate about whether when it comes to the Arab Spring the revolution was or wasn’t tweeted. But we are living in a golden age of constitution making, especially in the Middle East in Tunisia and Libya and Syria. What is it that has made the countries in the Middle East draft constitutions, and what sources are they looking to as they do so?

A. E. Dick Howard: Well, I’ve always been interested in how people go about the process of making constitutions. There’s a notion that you sit down — I mean, in my travels I’ve run into American lawyers who say, Oh, you want to write a constitution? I’ve got one here in my pocket. We the people of “fill in blank.” Take it from there. It’s a little embarrassing when you run into folks like that. But there is a kind of a synthetic quality of constitution making. I think some drafters assume that you can simply — today it’s easier than ever because you can just go online and pull them all up. In another day and time, you had the physical copies. But I think there was an assumption that you would just sort of pluck things that look good from other constitutions which I think is a great mistake. It is true that there are some norms that I think one presumably should apply. Now I’m going to be somewhat ethnocentric in saying this. I think certain countries touched by the Enlightenment you make certain assumptions about human rights, about universal values, and you will typically find — I’m thinking of Central and Eastern Europe where I’ve spent some time that, when they turned to writing bills of rights, they inevitably look to UN covenants, to the European Convention of Human Rights, to the OSCE documents and like. And so actually drafting a Bill of Rights, it’s not wholly synthetic, but there’s a lot from which you borrow. When you turn to the frame of government side of things, then I think you’re plunged into local politics. I learned at the elbows of the Virginia legislators what it was to mix politics and constitutions, and that is that inevitably deciding what the balance of power shall be between a legislature and an executive, what the process of making bills into laws will be, all that sort of thing, there’s not any sort of wholesale general model for that. Now — excuse me — the further you get — this is going to go back to your question. The further you get from the sort of countries where constitutions are traditionally thought of, France, America, the Western European countries, the further you get from that, as you get into other cultural context — you mentioned in the Middle East — then you run into very knotty problems. For example, what do you do about Sharia law? What do you do about universal human rights, talk about the rights of women? What you do when local drafters want to place those rights in, say, Sharia courts, applying Islamic law? There is something of a conundrum. There certainly are people in vast parts of the globe, I think in China, Russia, parts of Africa, other areas who reject the whole notion that there’s anything universal about constitution making. They would say it’s cultural imperialism for people like us sitting on this stage to even assume that the values that we’ve inherited from Magna Carta and have incorporated into modern law have that kind of universal application.

Jeffrey Rosen: Well, David, if Dick is right, then we have to be careful on that sort of cultural imperialism. I now want to put you to work as an honorary fellow of the Constitution Center as all of you have just become. We’re designing this international constitution drafting lab and are inviting people who are drafting constitutions from the Middle East and around the world to come and use our online resources. What would be most useful to offer them? If the U.S. model is not helpful, how can we be the international resource for constitution drafting, and how would you design our drafting lab?

David Fontana: I think that, although there are lots of constitutions now and there have been lots of constitutions in history, they’re still finite. And I think they fall into several different families. And so I think, when people sit down to draft constitutions, they’re not thinking of every constitution in the world and every constitution that’s ever been in existence in the world, but they’re thinking of a few familiar reference points. And so it’s often a significant country in the region, so in the Middle East and in Muslim countries, Indonesia is important. The Egyptian tradition is important. And then some significant other models from other parts of the world that have been successful, Canada, South Africa. So I can kind of inviting all the major families to the table is really important. And then I think it’s also important to involve lay people. I mean, after all, they’re the ones who are going to have to live with the document. Whether or not they like it or not really is the most important thing determining whether it works. So one thing we’ve seen as constitutions have been drafted over history that more and more often people are invited to participate one way or another because, if the people don’t like it, it doesn’t stick. After all, what is a constitution but a sheet of paper with a bunch of promises? And if those promises aren’t honored by the people who have to live under them, it’s never going to work. So I think a mix of kind of global experience and then kind of the people who have to live under the document is the best way of organizing a discussion for a country thinking about constitutions.

Jeffrey Rosen:
Fascinating. And President Kerwin mentions you need popular support. And, of course, the U.S. Constitution was drafted by elites, but it was only ratified after winning the support of “We, the people,” which involved writing the Federalist papers, overcoming objections to the lack of the Bill of Rights, and so forth. How can support for a constitution among the people be built in countries in the Middle East that do not have that Democratic tradition?

Cornelius Kerwin: I think it’s immensely challenging because, if you stop and think about the history of the document — and my two colleagues here know it far better than I — it was — it was drafted after an experiment with an Articles of Confederation that didn’t do for the country with the country felt it needed. So we had a do-over, in effect, and we had a country for whatever reason — I think in part the times and the differences between the times then and now — where the country and the document could grow up together. There was an opportunity for the culture and the document to adapt mutually. And I look around the world today, and I take a look at the impatience that one sees among populations that have lived under systems that they are more than anxious to overthrow. The expectations they have for that first attempt at constitution making can be very, very high, perhaps excessively so. And what you worry about then is the failure. I mean, can Egypt, can — pick the part of the world, can they live through their version of the Articles and come out the other end with a stronger document? Because these are times when failure of the sort that one might characterize the Articles can lead to the kind of reaction that is the antithesis or the anathema of constitution making.

Jeffrey Rosen: Dick, Cornelius makes an interesting point that it may not be the constitution itself, the parchment barriers as Madison called them but the political culture that determines constitutional success. And I guess by constitutional we mean a limited government, a democracy of the numerated and limited powers, not unchecked majoritarianism. So what’s most important? Is it the constitutional arrangement of structures and separation of powers, is it the existence or lack of existence of a Bill of Rights, or is it the political culture?

A. E. Dick Howard: That’s a wonderful question because, as my colleagues were talking, I was thinking about the Magna Carta theme and the evolutionary unfolding in effect organic quality of Anglo-American constitutionalism, and reference has been made to the U.S. Constitution preceded by the failed Articles of Confederation. Before that, we had a long period of constitutional disputation. I mean, Americans were sort of talking constitutional law before we had a constitution. You look at the tracks and the resolutions from the 1760s and ’70s. The colonists about to break with Britain were making constitutional arguments based on Cooke and Blackstone and other sources. But they were saying, We have rights, and you British are not respecting those rights. They were really — this is long before Marbury versus Madison or judicial review. But people were saying there are constitutional principles to which we are entitled. So we were fortunate that the period of experimentation from the first state constitutions through the Articles through the Constitution through the Bill of Rights finally, into the 19th century, we were building on a constitutional culture. So we had an inheritance which actually facilitated making the Constitution a reality. On the other hand, I think setting up the right constitution itself could be a part of the political process. You mentioned Japan. How is it possible that a constitution imposed on the Japanese by MacArthur’s military government is still in place and has never been amended? Well, I mean, you say, Well, something — they’ve domesticated the Japanese, become Japanese in the process. One likes to think that our former World War II enemies have now become part of the family of constitutional nations. Germany, the Basic Law of 1949 is a wonderful example. On the ashes of the Nazi period in World War II, Germany has become one of the models that David is talking about.

Jeffrey Rosen: Wonderful. Okay. That’s a very powerful point. You describe the U.S. constitutional culture dating back to the Colonial Era as being so devoted to limited government that the framers thought that certain natural rights were inherent and didn’t even have to be enumerated because the government wasn’t authorized to violate them. And then you gave two examples of successful countries that moved from totalitarianism to democracy, Japanese — Japan and Germany. David, my question is, how can a country create that constitutional culture? There’s a quotation from the new Tunisian president, President Marzouki who said, Much work remains to make the values of our Constitution a part of our culture. So the question is, how do you create that kind of culture? Are there certain prerequisites like the rule of law in civil society that are necessary for a constitution to succeed? And once the constitution is passed, as in Germany and Japan, can the constitution itself transform the culture in a good way?

David Fontana: These are very important questions. I mean, after all, we’re kind of spoiled by our experience. Most constitutions in the world don’t work, don’t work now, haven’t worked before. So it’s a difficult thing to make a constitution work, to plant it in native soil and have it grow. I think as I said before I think some sort of popular participation early on is important, and I think one thing — and this goes to President Kerwin’s comments — people have expectations of constitutions that tend to be too grand sometimes. They think of constitution not just as the basic rules but the rules that will fix all the problems that a country has. I tend to think of constitutions more as air conditioners. They kind of cool off the most heated debates, but them to the side, let politics operate. And so I think oftentimes what you see when people are talking about constitutions is they want it to fix every single problem rather than kind of setting down the basic rules and saying we’ll kind of agree to disagree. We’ll work together going forward. The British have a wonderful phrase for this, the loyal opposition, right? If creating a Constitution doesn’t create a loyal opposition, then it hasn’t really created all that much. If it hasn’t created the rules under which we’ll say I lost at this time but I live to fight another day, then I don’t think it’s really done all that much. And I also, I do plug for constitutions as language, as literature. It’s notable that all these hundreds of years later there are people who can still quote language from our Constitution. When I was in Tunisia and I was walking around kind of the town square in Tunis looking for a soccer jersey, a really important constitutional task when you’re there advising, somebody who I didn’t know across the street screamed out, We, the people, in order to form a more perfect union! Now, this is language, right? They don’t know what it means. They don’t know. I asked them, you know, I could ask them, is it in the First Amendment? They don’t know. But just the power of it as a cultural symbol, I think, is really important. And once it is planted in domestic soil and it creates some important cultural reference marks, then I think it really has the promise of succeeding.

Jeffrey Rosen: I love your metaphor of the Constitution as an air conditioner, the modern or at least the 1950s version of Madison in the Senate as the saucer that cools the coffee. But this idea of the Constitution as a conversation and a structure for debate is powerful. I was so struck by Justice Breyer’s discussion of compromise in the Senate. Wasn’t that interesting, coming to the middle. So we listen to each other and we see what we can agree on. And I have to say, at the Constitution Center, what I’m most proud of and excited about is the fact that we have persuaded the heads of the conservative Federalist Society and the liberal American Constitution Society to cochair a national advisory board that will nominate the leading scholars on the left and the right to participate in constitutional debates, to write the best interactive constitution on the web, to advise this Google app. I think there needs to be a space in America where people of different persuasions can come together to debate the meaning of the Constitution because it’s that debate that creates constitutional meaning. That leads to my question to you. President Kerwin, you’re an expert on administrative law and the drafting of statutes. It’s widely thought that Congress is broken. What is it that distinguishes the drafting of statutes in ordinary legislatures from the drafting of a constitution, and what sort of structures are necessary to ensure the deliberation that David identifies?

Cornelius Kerwin: Yeah. Well, I mean, I think, you know, if you take a look at a hierarchy of law, if that’s the proper way to phrase it, the Constitution stands as the touchstone for all of the rest of what we do. Statutes under our Constitution, I mean, it’s not insignificant that the founders in Article 1 Section 1, the first thing they had to say about the mechanics of government say that the legislative power will be vested in a Congress of the United States. And then they immediately set about contradicting that by turning power to write law over to the President through regulatory means that have grown immensely since. Statute writing in this day and age is writing a set of parameters within which subordinate institutions to them, largely administrative agencies both in line authority under the President or independent such as our commissions really do the heavy lifting for the public policy process. ^M00:22:48 You know, as I said, I wrote a book about rulemaking in order to induce my field, political science, to spend more time and attention to it. Based on the sales, it’s not been enormously successful [laughter]. But the simple fact is, is that if the administrative processes of the United States are not strong reflections of fundamental constitutional principles, then we as a democracy have failed because most of what we consume by way of law each one of us is now the product of an administrative agency as opposed to the Congress that was originally designed to do this for us. So, to my way of thinking, statute is the intermediate authority. It’s the — it’s the thing that connects the constitutional principle to — and I’m going to use an analogy not unlike David’s — to the plumbing of government. And the plumbing of government are literally thousands and thousands of regulations written every year that might not mean much to one of us on a given day but affect somebody in a very profound way. So to me, when we think about challenges that are cultural and otherwise, will we have democracies that will develop that much differently than ours? If they last 200 years, will they be without secondary and tertiary administrative procedures? I kind of doubt it. I’m unable to think about what it might look like. But statute today, the brokenness of Congress, you can read about on the front page of the Washington Post about what the reaction is. Either it’s the President saying, I’m going to use my phone and my pen to do what needs to be done without them or a Congress that reconvenes sometime in January and says it’s going to take off after what they think what are the most important public policy issues are, not one written by them, one written by the Environmental Protection Agency, climate change. So where do statutes reside? Well, they should reside as the most important subordinate law past the Constitution, but they can only reside there if they’re — if they get written, and they don’t get written very often these days.

Jeffrey Rosen: Dick, I’m going to give a last word to you. You have the distinction of having been a founding father in advising both a revision of the Virginia State Constitution and also national constitutions in Eastern Europe. I’d like you to compare those experiences. How is it different to advise Virginia and Eastern Europe. And, my gosh, Virginia, the source of the American Bill of Rights, what did you change in the Virginia Constitution?

A. E. Dick Howard: We didn’t mess with the Bill of Rights. You can bet on that.

Cornelius Kerwin: I was going to say I’ve got a place to rent in Maryland if you get disrobed.

A. E. Dick Howard: It was a wonderful place to cut my teeth on constitution making. I just missed the Philadelphia convention. I was not [laughter]. My students assumed that I knew James Madison but not quite. I sort of stumbled in. I was asked to be the principal draftsman on the Virginia Constitution, and I didn’t know anything about writing constitutions. As any young lawyer would, I said, Sure. I can write a constitution. I can do that, like writing a will or deed. I can write a constitution and got into it and discovered how rich the terrain was. I started looking at other state constitutions. Louisiana, for example, had a provision that said that Huey P. Long’s birthday shall forever be a state holiday in Louisiana. I don’t know what that has to do with fundamental rights, but there it was. What I discovered was the intersection between principle and theory on the one hand and just plain old politics on the other. We looked at what Maryland had tried to do the year before. They took the constitutional officers out of the Constitution which is theoretically a good thing to do. And when they did it, they created a center of opposition at every Maryland county to the proposed constitution. It was voted down by 8 to 1 in some of the Eastern shore counties. So we didn’t mess with the Constitution authors. So going through that process, I can tell you, after you’ve worked with the Virginia legislature, Albania holds no terror [laughter]. I have been there. I’ve been roughed up by experts. So when I started arriving in places like Prague and Budapest and Warsaw, the first thing I’d do is read history books and try to figure what’s going on in these countries because what do I know about the politics of Czechoslovakia or Poland? And the closer I could get to how their — to their mindset, the better. And instead of prescribing to them, here’s what you want to copy, I would try the Socratic method. I would say, Well, here’s what you want to do. Suppose you did it this way or that way, what are the implications? Give them a sense of the implications of choice which in communist countries they basically didn’t have. And what I was — sort of my quiet agenda was hoping that, whatever the final constitution would look like, it would incorporate some of the organizing fundamental principles of Anglo-American constitutionalism: limited government, checks and balances, constitutional supremacy, protection of fundamental rights. These are going to vary from one country to another, but those are the targets that you’re aiming at, it seems to me. And, if I could just get them to think in those terms, my role was a modest one. I never tried to be a drafter in somebody else’s country. But, if I could just help them think about the questions the way you’re trying to do with the Center in Philadelphia, then I felt like it was a trip well worthwhile.

Jeffrey Rosen: Beautiful. Well, I do appoint each of you honorary fellows of the Center. I want you to advise us on this constitution drafting lab and continue to draw on your remarkable expertise. I’d love everyone in the audience and who’s watching across the country to come to the Center and see this remarkable exhibit displaying one of the twelve original Bill of Rights or visit us online and participate in the exercise we’ve been talking about today where you can see the historic sources of our rights in the Magna Carta, trace them through the Colonial Period up to the time of the Declaration, the Constitution, and the Bill of Rights, and then watch the spread of those liberties across the globe. Ladies and gentlemen, please, thank you. Join me in thanking our panelists.

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