William and Mary Law Review

Professional publication covering law.

Articles from Vol. 49, No. 4, March

A Constitution between Past and Future
Constitutions tend to be written at momentous turning points in a country's history. A war is lost; (1) an empire is vanquished; (2) an old order is overturned; (3) a dictator dies; (4) an authoritarian government is forced to step aside; (5) a mass...
Baghdad, Tokyo, Kabul ...: Constitution Making in Occupied States
INTRODUCTION On October 15, 2005, Iraqis voted in overwhelming numbers to adopt a new constitution. (1) Although all hoped that the new document would mark a political settlement, the new constitutional structure has not been able to ameliorate,...
Conciliatory Institutions and Constitutional Processes in Post-Conflict States
There are two important questions in post-conflict constitution making, and at present neither of them has a definitive or uniformly accepted answer. (1) The first relates to the best configuration of institutions to adopt in order to ameliorate the...
Constitution Making after National Catastrophes: Germany in 1949 and 1990
Constitutions, usually, are new beginnings: after some seismic shift in a country's history--a revolution, a lost war, a collapse of government--a nation sets out to reinvent itself. It can do so by looking back into the past or forward into the future....
Constitution Making at the Edges of Constitutional Order
INTRODUCTION This Essay is a report from the battlefront. The battle is between the forces of the constitution, a moderate form of politics, and the politics based on the barrel of the gun. But the Essay is not about what goes on at the front. It...
Constitution Writing in Post-Conflict Settings: An Overview
During the past forty years, over 200 new constitutions have emerged in countries at risk of internal violence. Internationally brokered peace accords have entailed the development of constitutions not only in the Balkans but also in Cambodia, Lebanon,...
Could and Should America Have Made an Ottoman Republic in 1919?
Generations of American school children have memorized the words of Jefferson's Declaration of Independence. Its evangelical spirit was echoed in Lincoln's Gettysburg Address and scores of other presidential addresses. Partly on that account, numerous...
Expanding Participation in Constitution Making: Challenges and Opportunities
INTRODUCTION Internal exclusion is a substantial impediment to the successful implementation of participatory democratic reforms in post-conflict states. The recent use of participatory constitution making in states like Rwanda illustrates the challenge...
Invoking the Rule of Law in Post-Conflict Rebuilding: A Critical Examination
INTRODUCTION Establishing the rule of law is increasingly seen as the panacea for all the problems that afflict many non-Western countries, particularly in post-conflict settings. (1) Development experts prescribe it as the surest shortcut to market-led...
Popular Authorship and Constitution Making: Comparing and Contrasting the DRC and Kenya
INTRODUCTION African countries have produced a torrent of new constitutions since 1989. (1) In addition to these new constitutions, there has been an exponential growth of nongovernmental organizations monitoring compliance of African governments...
Post-Conflict Rule of Law Building: The Need for a Multi-Layered, Synergistic Approach
INTRODUCTION In recent years, considerable blood, sweat, and treasure have been devoted to building the rule of law in the wake of armed conflicts and military interventions in many parts of the world. From Afghanistan to Iraq, Kosovo to East Timor,...
Quintessential Elements of Meaningful Constitutions in Post-Conflict States
quintessence, n. In ancient and medieval philosophy, the fifth and highest essence after the four elements of earth, air, fire, and water, thought to be the substance of heavenly bodies and latent in all things. (1) INTRODUCTION The overall topic...
Some Skepticism about Normative Constitutional Advice
It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from...
The Theocratic Challenge to Constitution Drafting in Post-Conflict States
INTRODUCTION Over the past few decades, principles of theocratic governance have gained enormous public support in developing polities worldwide. The countries experiencing this resurgence of religious fundamentalism are diverse, spanning the globe...
What's in a Name? Reflections on Timing, Naming, and Constitution-Making
I. INTRODUCTION: THE PARADOXES OF CONSTITUTION-MAKING There is a paradox, well described by Jon Elster, (1) that the crisis conditions that often lead to constitution-making are incompatible with the kind of deliberation thought necessary for the...
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