Boom times for 'We the people'

Despite Iraq's troubled effort to craft a government, the world today is in a golden era of national constitutionmaking.

From ex-Soviet nations shedding communist-era laws to candidates for European Union membership buffing credentials, and developing countries striving for internal reconciliation, states everywhere are looking to these thin documents as a powerful symbol of political legitimacy. Since the 1980s, some 100 national constitutions - about half the globe's total - have been created, rewritten, or substantially revised.

But there's at least one difference between the constitutions of today and those that are hundreds of years old. In the past, framers often had sharp differences but also shared visions. Think Philadelphia in 1787, when all knew they wanted a democratic, liberal state.

By contrast, the framers of today are often just looking for a way of living together without major disagreements. They want to manage differences as much as settle them. "New constitutionalism is ... a conversation, conducted by all concerned, open to new entrants and issues, seeking a workable formula," concludes a United States Institute of Peace (USIP) special report on democratic constitutionmaking.

It is by no means sure that Iraq has reached a workable formula, following the proposed constitution's rejection by Sunni negotiators. In the upcoming Oct. 15 referendum, the constitution can be defeated if two-thirds of the voters in any three provinces vote it down. Sunnis have a majority in at least four provinces.

"That is the real test, whether they will vote for it in large numbers or not," said US ambassador to Iraq Zalmay Khalilzad in a broadcast interview Monday. "If they don't, then it will be a real problem."

President Bush, for his part, hailed the document as something of which Iraqis can be proud. Some Democrats were more pessimistic. Sen. Joseph Biden (D) of Delaware said Sunday that it seemed a "tough bet" the charter would pass.

Whether it does or not, constitutions are still a booming business. There are now at least 185 in the world, according to John Paul Jones, a University of Richmond law professor who maintains a website with the text of national constitutions. And more pop up every year. Qatar finished a rewrite recently, for instance. Kyrgyzstan will probably start one soon.

"It's a moving target," says Professor Jones. The heyday of new constitutionmaking followed the dissolution of the Soviet Union, he adds. The USSR's East European satellites already had constitutions, of course - fine-sounding ones that guaranteed human rights and so on. They were ineffective in practice because they limited the powers of government, but not those of the Communist Party - the real power in the Soviet era. Most ex-Soviet bloc states wanted a fresh start.

Not all constitutional exercises result in formal constitutions, notes Jones, who call constitution-writing "theater that is stimulated by political necessity."

In Zimbabwe, for instance, President Robert Mugabe reluctantly established a constitutional commission in 1999 following pressure from civil-society groups and his political opposition. But Mr. Mugabe manipulated the drafting process, and in 2000 it was rejected by the nation's electorate, 54 to 46 percent.

Nor are all constitutions written down. Britain famously has no written formal constitution - but it does have Magna Carta, and the precedents of centuries of democratic practice that by now are as binding as any paper.

In most historic constitutions there is a basic social agreement, or anchoring point, that framers began with. Most had a general idea of the nation they wished to help bring into being.

"I don't think you've got that in Iraq," says Jones. "The divisions are overwhelming the agreement."

That said, there's also a modern example of miracle constitutionmaking: Japan. Following its defeat in World War II, Japan was handed a constitution drawn up by Gen. Douglas MacArthur and a team of American lawyers. Rather than perceiving it as an affront, the Japanese kept it when they regained national sovereignty.

The United States did not come to its constitution easily. It took 11 years to get from the Declaration of Independence to the 1787 constitutional convention.

Delegates struggled with how to apportion power between the central government and the states - a problem analogous in some ways to the Iraqi struggle to allot power between various groups. Slavery, an issue which threatened to derail the whole process, was essentially deferred. This allowed the new nation time to coalesce, but it also led eventually to the Civil War, upon which it almost foundered.

If it was hard for the US, what about, say, Rwanda, where memories of tribal bloodshed are still fresh? That's a big reason that in the modern world it is the process as much as the outcome that matters, says the USIP report, which was written by Vivien Hart, director of a constitutionalism center at the University of Sussex in England.

South Africa's constitution might be an example in this regard. It took seven years to create and, thanks to an extensive outreach campaign, drew more than 2 million submissions of ideas from South Africans.