Blog of the International Journal of Constitutional Law

Nathan Brown tells American advisors: “Put Away Your Quills” in the Mideast

Nathan Brown of George Washington has an excellent new post at 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 here).


One response to “Nathan Brown tells American advisors: “Put Away Your Quills” in the Mideast”

  1. Jon Avatar

    It is correct that few Americans or other Westerners are skilled at constitution writing. Indeed, looking at the amendments to the U.S. Constitution, proposed and adopted, since the first ten, it seems we have not had anyone competent since James Madison, and with the benefit of hindsight we can find some flaws in his work as well. We can also discern that much of the incompetence that got into earlier proposals was due to political influence.

    It is also correct that our suggestions to drafters in these countries may not receive our suggestions well, or even understand them. However, since they seem to take much of what they do from our models, which they often don’t understand (nor do we), it may be of some value to try to explain our own models, and let them take from that what they will.

    However, Nathan Brown’s article seems to suggest that the principles of constitutional design are more a matter of political culture and taste than they are. Despite differences in political or legal culture, the natural restrictions on constitutional designs that can actually work in the long run are more severe than he seems to think. I find those principles of design to be dictated not just by human nature, but would be similarly constrained for any broadly human-like species, anywhere in the Universe.

    Even if they do not listen to our suggestions, it is worth making them if only to discuss among ourselves, as a way to learn better how to do this kind of thing. If some of them happen to listen and and learn something, that is all well and good.

    Much can be learned by examining constitutions for how they have applied similar design principles, how they have deviated from those principles, and how that worked out. I find the recent attempt to forge a “constitution” for the European Union to be particularly instructive for how not to do it.

    There are a few principles I would urge:

    1. Keep out all the aspirational crap. A constitution is a law, not a political manifesto. It should stick to specifications of structures, procedures, rights, powers, and duties, and strike the right balance between specificity and coverage of every contingency that can be anticipated.

    2. The main purpose of a constitution is to protect rights, and everything needs to lead to that. A well designed constitution will try to anticipate all the ways rights can be violated and provide remedies for each of them.

    3. A constitution must never mandate the expenditure of a sufficient amount of any scarce resource. It must be realizable even when there is nothing to share and nothing except the efforts of unpaid volunteers to carry out its provisions.

    4. Power needs to be divided in a way that allows for checks and balances, but which does not prevent action when action is urgent. That is tough, but it can be done. Generally, those to be checked should not have a hand in selecting those who must check them.

    5. The key to republican government is not equal representation. There will never be equal representation. The key is deliberation, with equal opportunity to have one’s concerns deliberated upon. It is, however, a good idea to create veto blocks against actions that may disadvantage individuals or minorities. That is one of the functions of courts.

    6. Have as much of government done at the local level as possible without producing fragmentation. Local juries or shura should be an important part of any sound design.

    That is enough for now.

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