Constitutional Experts in Demand
IN the rapidly changing world order, there's a growing market for something very American: a democratic constitution that works.
Ultimately it will take more than ideas on paper to make a democracy, but those who can explain the concepts behind the United States Constitution - the world's oldest - are in demand in places like the former Soviet republics and Eastern Europe.
"There is more constitution-making going on now than perhaps any time since World War II. Suddenly it became a cottage industry. These last two years since the remarkable weeks of the winter of 1989 have taken Americans [legal experts] on the road perhaps without parallel," says A. E. Dick Howard, a University of Virginia law professor who has been an adviser to constitution-making in Albania, Bulgaria, Czechoslovakia, Hungary, Poland, Romania, and Russia.
Legal experts doing this advising describe a process that is at times exhilarating, frustrating, and explosive.
Broad and noble notions of human rights are quickly embraced, but people breathing freely for the first time want to spell out in detail what freedom means, say legal experts. Sometimes that can be more confining - and confusing - than intended.
The 142-article Russian draft constitution, for example, recognizes recreation and paid vacation as "human rights."
And a draft of the Ukrainian constitution allowed that mayors would be democratically elected locally. Then it stated that mayors would be representatives of the president.
As constitutions in Eastern Europe and the former Soviet Union are shaping up, each nation is using an amalgam of US and European models as an overlay to the culture of the country doing the drafting.
Hungary's near-total revision of its Constitution has borrowed much from the German transition from dictatorship to democracy, explains Peter Paczolay, chief counselor of Hungary's constitutional court who is studying the principles of judicial review here as a fellow at the Woodrow Wilson International Center for Scholars.
But, he says, the new Constitution borrowed heavily from the US Bill of Rights as explained to drafters by American scholars.
"A great influence is the idea of judicial review. The whole idea of declaring a legislative act unconstitutional was absolutely unknown in Hungary," says Mr. Paczolay. But the concept was adopted without provision for the high court to select the cases it hears. Consequently it has been swamped with 1,500 cases - about five years' worth of work for the 10 judges - he explains.
Comparative knowledge of constitutions, how they work, and picking the best mechanisms from each are the best that American scholars can offer, says Albert P. Blaustein, a retired Rutgers University Law School professor who has written a 22-volume text comparing world constitutions.
But no matter what a constitution says, "A right without the procedure of enforcement is not really a right," says Mr. Blaustein, who has traveled on all continents as a paid constitutional consultant.
"The implementation phase of creating political parties, a free press, independent judiciaries, law school curricula, an independent bar ... all the working institutions: That's where American influence will be greater," says Professor Howard.
Indeed, American advice about how constitutions will work is more important than having a hand in writing them, concurs Herman Schwartz, an American University law professor who led international constitutional advisory groups in Eastern Europe and Russia.
Particularly in nations with diverse minorities, he says, built-in veto protection for them is a strong political consideration in the creation of constitutions. "But they may not know that the nth degree of proportional representation, like in Israel, can mean minor parties are the tail that wags the dog."
Even in the US Constitution, he explains, the Founding Fathers didn't realize that political parties would eclipse the electoral college in the power to pick the president.