Why Constitutions Succeed — and Fail


We live in the Age of the Constitution. Ninety-four of the world’s country constitutions—almost half of them, in short—have been written since 1990. And many of those have already been seriously altered or amended since their adoption!       

Bahrain got its first constitution ever in 2002. Finland got a brand new one in 2000. Bhutan began writing its first constitution in 2001 (the completed draft has yet to be ratified.) The Central African Republic got a constitution in the nineties, scrapped it, and ratified a new one in 2004. Sudan, Angola, and many others have gone through similar patterns.       

The first medicine prescribed for every failed state is now a constitution. Afghanistan and Iraq are probably the best-known examples, but others abound. The new constitutions keep coming and keep failing.       

And failing.       

What’s so hard?       

With 214 models available, why does any country even have to write a new constitution? Why not just adopt the U.S. constitution, for example, especially if a country wants to be a democracy? This constitution is the oldest one still in use in the world. It’s road tested. It certifiably works: it has never been suspended, and its core structure has never needed alteration. It has been amended 27 times, but always in accordance with procedures set forth in the constitution itself. The amendments therefore prove the strength of the original document, not its shortcomings.       

Aye, but here’s the rub. In the real world, every constitution has two aspects. It is a how-to manual for operating a country. But it’s also a treaty among all the factions, parties, and interests competing for advantage at the moment the constitution is written. “Operating manual” and “treaty” are not the same thing. In many ways, they’re at odds.       

As an operating manual, the ideal constitution focuses purely on mechanisms and procedures. It doesn’t say who gets how much water, or how much oil, or what ethnic group gets how many seats in what government body—nothing like that. It rises above today’s concrete questions to set forth the methods by which all questions should be addressed throughout time. Only thus can a constitution keep a country sailing through the unpredictable tides and storms of history.       

A treaty, however, must address concrete questions. It must settle immediate crises. If people are fighting over water, it must specify who gets how much of it. Otherwise, what good is it? A treaty that doesn’t get into the nitty-gritty isn’t a treaty. But any concrete answer to any specific question is bound to become irrelevant or incorrect if enough times goes by. So any constitution preoccupied with the nitty-gritty will eventually have to be replaced.       

A rare case       

We in the United States are lucky: our constitution is almost entirely an operating manual. But it took this shape because of the rare circumstances in which it was born. Its authors had the luxury of creating a country from scratch. The British weren’t at the table, and so their interests didn’t have to be accommodated. And amongst themselves, the Americans had only a short history together as a people: no thousand-year-old grudges to expiate or untangle.       

Therefore, at that constitutional convention of 1787, the delegates were able to argue out the problems of governance in the abstract and draw up a plan for the ages. They could weigh, for example, individual rights against collective needs. They could ponder how to give leaders enough power to act decisively without giving them the power to tyrannize. They could work out a framework firm enough to support a country yet flexible enough to accommodate its changes.       

The circumstances they enjoyed might never occur again. Who gets a blank slate anymore? In today’s clamorously crowded world, every new constitution is a case of fresh rules being written for a game already in progress, rules that immediately affect who’s winning and losing. People writing a constitution in such a context are jockeying for position, and they argue over the exact wording of each article as if their very lives were at stake—because their very lives are at stake.       

Afghanistan and Iraq       

I’ve read the new Afghan constitution pretty thoroughly. Adopted in 2003, it’s suspiciously replete with specifics. It gives particular languages official status. It confirms the primacy of Islam again and again. It cites one man by name: Zahir Shah, a former king, is here enshrined as the country’s “Father.” A hundred years from now, this will probably seem absurd.       

Women, in this constitution, are allotted a set percentage of seats in a parliamentary body appointed by the president. It’s a high percentage in the current context. But if women’s status advances in Afghanistan, it will eventually seem insultingly low. A set-aside designed to advance women’s rights today might very well be invoked someday as constitutional justification for impeding them.       

I asked an Afghan friend of mine if he thought this new constitution would give the country permanent stability. He said, “Ten years—that’s all I ask.”       

Ten years! That doesn’t seem like a high standard for a constitution!       

But it’s not so bad for a treaty. And in real-life constitution-making, the treaty aspect comes first.       

Take Iraq.       

Is this really a country? It has a single name, and its inhabitants are all called Iraqis, but they’re actually a concatenation of contending and embattled minorities. One main group, the Kurds, overlaps into two neighboring countries, Syria and Turkey. Kurds share a common language, culture, history, and religion, and they inhabit a single contiguous territory. This has led them to imagine a Kurdish nation-state, which does not exist. In order for the constitution of Iraq to work, its Kurds must come to see Iraqi Arabs as their fellows and Syrian or Turkish Kurds as distant others. Tough sell.       

Meanwhile, the Sunni Arabs, who make up 20 percent of Iraq’s population, have ruled this roost for centuries. But their dominance came to a bloody climax under Saddam Hussein. Consequently, most other groups within these borders now have scores to settle with the Sunni Arabs. No one lets go of ancient privileges easily, but Iraq’s Sunni Arabs have an extra incentive to cling to power. They’re afraid they’ll be slaughtered if they don’t.       

The other groups have similarly urgent claims and fears. Before Iraq’s constitution can function as an enduring operating manual for the ages, it must enable Iraqis to live through next year, the next two years, the next five. If it fails, a civil war may split Iraq into three countries—one of which won’t be viable, for it won’t have petroleum (or any other resource to speak of.)       

Consensus Is the Key       

Even the best constitution can’t prevent a civil war. The U.S. constitution was drafted under nearly ideal circumstances, but it papered over the ugly fact that nearly twenty percent of the population was enslaved. It took a bloody Civil War to change that fact. Only after that could “normal” constitutional processes kick in and produce the 13th, 14th, and 15th amendments, which outlawed slavery officially.       

“A constitution is just a piece of paper, no better than the underlying consensus – or lack thereof – that it memorializes,” says Noah Feldman, a professor of constitutional law at NYU.       

In other words, a constitution cannot create consensus by fiat. It can only formalize agreements that already exist. If, however, it can just provide a period of peace, or even a long enough ceasefire, a society might be able to forge some necessary agreements without bloodshed.       

That’s why a constitution must work as a treaty before all else. If the treaty fails, the rest doesn’t matter. If it succeeds, the country can go through healthy changes that render the original constitution obsolete. At that point a new constitution will have to be written. Failure like that is a kind of success.       

Leapfrogging to Nationhood       

One constitution taking shape today provides an intriguing counterexample. The constitution of the European Union is being written outside the pressure cooker of urgent historical crisis. A first draft of this document has already been rejected by two members of the Union, but that doesn’t kill it. The EU has a great advantage, you see: it doesn’t need a constitution. It isn’t a country. Without a constitution, it just goes on as before.       

Meanwhile, committees will keep modifying the draft until some version of it passes. Whatever that framework turns out to be, it might let member nations move toward greater unity. As a supra-national entity congeals, that entity may eventually find its first constitution inadequate and forge a new charter, giving its federal government more power.       

By leapfrogging from consensus to constitution to consensus to constitution, the European Union may morph at last into an actual country. The U.S. constitution was originally written as the binding document for a collection of small entities—colonies—that thought of themselves as separate states, autonomous little countries. The constitution was going to be the formula for their cooperation on those occasion when the 13 colonies would need to act as one. The fortunate fact is that the U.S. constitution as conceived allowed itself to evolve into the framing document for a single nation-state. Those “strict constructionists” who want to strip our constitution of its history and reduce it to its literal wording are actually embarked on the project of denying that the United States is a nation-state and restore the original formulation of this country as a collection of national entities, only loosely connected as a confederation, only a little more unified and single than Europe is now       

Constitution-writing is rarely going to be a one-step process. Even the United States went through two steps—first the Articles of Confederation and then the constitution we know and love.       

That’s the positive way to look at my friend’s remark about the Afghan constitution. Ten years of relevance don’t have to end in a bloodbath. They can end in a better constitution.       

That’s why constitutions are worth writing, even ones not good enough to last.      

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