American Advice and New Constitutions
Sustein, Cass R., Chicago Journal of International Law
The early 1990s were among the most extraordinary periods for constitution-- making in the history of the world. Several people at the University of Chicago Law School played a role in this period, mostly as observers, to some small degree as participants. The editors of this Journal have asked me for some brief reflections on this remarkable time; I am grateful to have been asked and happy to oblige.
This is an impressionistic essay, but I do have a principal theme. It involves the conflict between what might be called pragmatic and expressive conceptions of constitution-making and constitutionalism. Americans generally tend to think of constitutions as pragmatic instruments, important for what they do in the real world. In Eastern Europe and (to a lesser extent) South Africa, by contrast, expressive considerations loomed very large; what constitutions say-what ideals they express-- was extremely important, not merely what constitutions would do. Of course what constitutions do is often a function of what they say; I am emphasizing the role of constitutions as carriers of symbols and statements, largely for their own sake. I also offer some brief notations on the contrast between Eastern Europe and South Africa, and on what Americans might learn from constitution-making efforts elsewhere.
1. FOUR TRANSITIONS AND RECURRING ISSUES
After the downfall of the Soviet Union, a large number of nations were embarking on a remarkable enterprise in self-definition and constitutional reform. At the time it was clear that several quite different transitions were involved. Four are easy to identify. The first involved a shift from a command economy to some form of capitalism, or at least a system in which private property was acceptable. The second was a shift from party rule to some form of democracy. The third, of particular interest to law professors and lawyers, involved a shift from rampant official lawlessness, and meaningless constitutions, to some version of constitutionalism and the rule of law. "Constitutions did not play an important role under communism."' One of the principal goals of the transition from communism was to produce a system of meaningful constitutions; ten years later this goal has been largely achieved, to one degree or another.2 The fourth transition involved a shift to domestic rule from more than occasional control by the Soviet Union. This shift-from Soviet domination to national self-government-turned out to be extremely important to the early 1990s, and often it seemed foremost in the minds of the reformers.
Soon after the fall of communism, it was clear to several of us at the University of Chicago that it would be very valuable to attempt to track and analyze the new efforts at constitution-making. Jon Elster, Stephen Holmes, and I created a Center on Constitutionalism in Eastern Europe, designed above all to house records and to engage in fact-gathering and analysis.' Our mission was emphatically not to provide "advice" to nations involved in constitution-making. As an organization, we believed that the academic tasks might be compromised by advice-giving roles.
Nonetheless, some of us did participate, to a greater or lesser extent, as spectators and advice-givers with respect to constitution-making, not only in Eastern Europe but also in South Africa (with which the Center was not concerned). Many issues were discussed, in quite similar terms, in a range of countries-for example, whether to give the Constitutional Court the power to issue advisory opinions; whether the Court should be available to ordinary citizens, to government officials, or both; whether and how to handle problems of ethnic pluralism; whether and how to promote sex equality (an issue that was greatly neglected in Eastern Europe, but quite prominent in South Africa); the circumstances in which rights could be abridged (what form of words would be appropriate for identifying those circumstances? …