Americans, Put Away Your Quills

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.

 

Second, there are few points of entry for foreigners to press their ideas. Where states have failed or been occupied, international advice and even oversight has had a strong role. But the Tunisian and Egyptian states are very much intact and unoccupied. While NATO planes helped to advance the revolution, they will likely play little role in Libya's constitutional process. Instead it is powerful indigenous structures and actors who will guide the process. And when it comes to fundamental questions about their political futures, they tend to prefer the answers that they themselves give. Tunisians debating the country's identity -- so far the biggest hot button issue in constitutional debates -- are hardly likely to pull in foreign consultants to draft language. The Egyptian committee of one hundred people is unlikely to want to be seen as allowing outsiders to vet their work in a political context in which "foreign agendas" are the topic of daily denunciations in the press.

 

Third, the Arab world actually has a long set of constitutional traditions that will serve as the reservoir for drafting efforts. Tunisia received its first constitution when France was an empire and Germany was not yet a state. Egypt has a long and rich tradition of constitutional experiments dating back almost as long. Much of that heritage is deeply troubled to be sure, but most Arab societies are full of people who already speak their own constitutional language. Constitutional law professors and lawyers have already begun to play prominent political roles. And when they find something troubling in past documents, they generally react by attempting to write the precise opposite of detested practices into the constitution. Constitutional drafters in most countries act like generals fighting the last war. It is their own history that serves as a positive and negative model, not that of the United States. And while this attitude can lead to some odd results (drafters in Iraq, for instance, tried hard to make a military coup unconstitutional), the attitude is, by and large, sensible. Constitutions have made a difference in Arab politics (as Egypt found when its rulers tottered and were revealed to have booby trapped the constitutional documents to make a gentle transition virtually impossible to negotiate). But those documents, while significant, have not been democratic. The problem lay not in their general promises, which were lofty, but in their fine print. Now there is a chance to fix that -- not by borrowing still more lofty phrases from foreign documents but by carefully rewriting the details and closing the loopholes of the ones they already have.

 

Fourth, when Arabs turn outwards to spot analogous cases, they are more likely to look to Europe and selected other countries (such as South Africa) where they are far more likely to find some similarities both in historical experience and constitutional structures. The U.S. experience, rich as it is, is very idiosyncratic. From a constitutional perspective, the United States is a marsupial: exotic and sometimes even cuddly, but also a product of a completely different evolutionary path. The U.S. attempt to graft some familiar structures, terms, and concepts familiar into the Iraqi text often left Iraqi politicians baffled -- and largely had to be abandoned as the United States finally concluded that any constitution Iraqis agreed upon was better than one that made sense to Americans.

 

Fifth, even if we had good advice to give, we also have a long track record of accommodating authoritarian rule. Having made our peace with many of these Arab autocracies, at best giving a few tools to those who nibbled away at its edges, it would be an odd time to insert ourselves aggressively into the politics of building democratic orders.

 

So are we to be mere spectators? Largely yes, but not completely. There are things we can do to help. First, we can communicate that rule of law works internationally as well as domestically -- the newly reconfigured members of the family of nations cannot jettison their international obligations that come in the form of various human rights instruments, the United Nations Charter, and other binding bilateral agreements. If the United States can overcome its own phobia of international law, it will find these documents a promising source of values and of language that Arabs have already accepted in theory. Indeed, some of those clauses that tend to make Americans most nervous -- especially those related to Islam -- are generally vague, symbolic, and ambiguous at most in their practical legal affects. Illiberal applications of such clauses can often be hemmed in by robust, specific, and enforceable references to international human rights instruments.

 

Second, we can probably offer fair technical help. We cannot tell Arab states how they must structure their elections, but we can give some helpful advice about how various countries build structures to oversee the civil service or ensure that that they have the capability to assemble fair voter lists.

 

Third, we are often taken to have influence with particular actors and an inclination to combat others. Many Egyptians feel the United States has leverage with the military -- many throughout the region wonder how strongly we will stand against Islamists. Our influence is likely greatly exaggerated in both regards, not only in our own minds but also in those of activists in the region. But we still need to acknowledge and react to our perceived influence.

 

We should handle these challenges differently. The Egyptian military shows definite signs of attempting to shoehorn in a permanent constitutional role for itself and an exemption from civilian oversight. We likely cannot make them change their minds, but we can communicate publicly to Egyptians that they are doing so without our blessing.

 

With regard to civilian political forces, we should communicate our general support for the process without endorsing particular actors. Our leaders can communicate as clearly as possible that the process of constitutional reform is one we can win live with. We will not pick winners and losers or support elections only on the condition that one side win or another side be excluded. We are prepared to see the constitutional structures designed in the Arab world work their course. Such a gesture would probably be the most effective -- and the most appreciated -- one we could offer.