Nathan Brown of George Washington has an excellent new post at foreignpolicy.com in which he argues that Americans have little to say to constitution-makers in the Arab world. He is surely right.
My own view is that external advisors are best focused on the nitty-gritty issues of drafting, such as making sure the text is consistent, and not particularly well suited to make the big institutional choices. For one thing, we do not have very good social science knowledge of how institutional choices impact subsequent policies, save perhaps for electoral systems; and we have virtually no social science on the interaction of various institutions. Making predictions about what will happen is fraught with difficulty. Constitution-making is still more of an art than a science, and the artists are those that must live under the constitution.
From Nathan’s post:
Later this month, the representatives just elected by Tunisian voters will begin the task of designing a new political order for the country. If all goes well (though it may not) Egyptians and Libyans will follow suit by drafting new constitutions. It is still not inconceivable that other Arab societies will join them in an attempt to reinvent political systems on a more democratic basis. People in these societies are about to engage in an unprecedented process for them — while they have all lived under constitutions before, those documents generally enabled authoritarian government. Now they want to write constitutions that will allow them to live democratically. As Americans, this seems to be a story we know well — a people rises up, throws off oppression, and then deliberates carefully how to write a set of rules for a new republican order fit for a free people. Therefore, we will soon hear lots of well-meaning advice on how Arab societies should write their constitutions and what those constitutions should say.
We saw in Iraq how much U.S. understanding of the constitution drafting process was colored by the U.S. experience. Commentators rushed to speak about a “Philadelphia moment,” recommended favorite clauses from the Bill of Rights, and even argued over judicial review by reference to Marbury vs. Madison or Roe vs. Wade. We should have learned our lesson: much of our advice will be bad and most will be irrelevant.
First, when outsiders give advice, they tend to ask an abstract question: what would be the best constitution for a given society? Not only do they often know little about that society, they forget that constitution writing is a supremely political process. It is not carried out by philosopher kings but pushed through by real political forces playing a gritty political game. Despite what some of us may dimly remember from junior high school U.S. History, our process was no different.
Constitutional kibitzing rarely finds an enthusiastic audience. After the initial election in the various Arab countries, the constitution will be the first test of the new balance of political forces — and it will be the first real opportunity for them to discover not simply how to compete, but how to cooperate. Even more important than the text they produce, the patterns of interaction they establish as they draft will produce lasting patterns for politics. They need to keep their eyes on each other — and that is precisely what they will do….
(Piece continues at foreignpolicy.com here).