Draft constitutions in comparative perspective

Excerpts below from an article by Zachary Elkins on Medium. The Joy of Politics posted a note on Constitute in June 2017.

One nagging challenge in Constitutional design is how to involve citizens in the drafting process in a meaningful way. One traditional role for citizens is to review and approve the proposed text by referendum. The referendum is a required ritual in this democratic era and, undoubtedly, helpful in building legitimacy, among other benefits. But do we expect citizens to read the proposed text? Not really. And if they do read it, how are they to evaluate it? With difficulty, probably. And for that matter, how can anybody consider anything without a comparative reference point? I don’t know.

That’s where Constitute (v.4.0) comes in. Recall that the premise underlying Constitute is that borrowing and adaptation are natural to the lawmaking process. In this sense, drafters are no different from any other creator. Like Einstein, Constitutional drafters stand on the shoulders of giants, and even sometimes those not so giant, in order to understand their choices. Drafters read and compare other constitutions, even those they wouldn’t emulate.

But so do (or should) citizens. Consider Libya, where a hardworking group of drafters has proposed a Constitution to replace the post-transition Constitution of 2011. It seems likely that sometime in 2018, Libyan citizens will be asked to give their approval to the new text, thus enshrining it as the higher law of the land. So, here’s a radical notion. What if Libyans not only read the document, but also read it in comparative perspective? Now they can. They (and you) can read it on Constitute here, and in Arabic here. Want to know what the draft says with respect to, say, national language? Read the relevant clause here, along with those of all other countries.

Or better yet, why not read the new draft constitution against the one currently in force from 2011? That is, read them both side-by-side, all the while sifting through each document using a topical index. So, now look at the national language clauses from both texts (there is an important difference).

[…]

This glimpse of the present and future of Libya side-by-side (what we call “compare view”) introduces an opportune moment to mention another feature of v.4.0 that I like — historical Constitutions. As Constitutional junkies know, our broader research project is largely historical. But we have not yet started to put these historical texts on Constitute — for one thing, we assumed that only a small number of our kind was interested in such. We were wrong. Due to popular demand, we have started to add historical texts from our archive to the site. We will roll out more and more texts regularly, starting with those that are particularly useful for comparison with contemporary reforms. See, for example, recently replaced Constitutions from Egypt, Nepal, Thailand, and Tunisia. Note: historical texts only appear if one clicks the “historical” filter in the left-hand navigation panel.

[…]

Perhaps my favorite new feature is one that will foster creation and idiosyncrasy. We are introducing a log-in feature that allows users to access esoteric and personal texts that are not of general interest. These texts might include obscure historical constitutions, draft constitutions that are not yet publicly available, or privately created content (tagged by topic and uploaded for a modest fee to cover costs).

The last category is especially interesting and empowering. Many individuals and groups write their own Constitution, often as a preliminary stage of Constitution-building. Sometimes these efforts are mere exercises in utopian design, which is undoubtedly a delightful pursuit. Sometimes the plans are the basis of discussion for core decision makers. Regardless, Constitute now allows these drafters — from James Madison to your favorite high school student — to view, sort, and compare their creations alongside the world’s national texts.

[…]

We admit to an obsession with design. Our idea is to produce a beautiful reading environment within which to explore Constitutional text. Constitutions deserve a beautiful canvas. Check that: Constitutions need a beautiful canvas if they are to hook readers. For this reason, most of the changes to Version 4.0 are fine tunings of our core features and designs. These changes are many, and I won’t bore you by recounting them in gory detail. Besides, they are better experienced. Please, visit the new Constitute and see for yourself!



Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s