ERIC ED345994: Reflections on the Establishment of Constitutional Government in Eastern Europe.

29 Pages·1991·1.3 MB·English

by  ERIC

SO 022 138
ED 345 994
Varat, Jonathan D.
AUTHOR
Reflections on the Establishment of Constitutional
TITLE
Government in Eastern Europe.
PUB DATE
91
NOTE
29p.
Viewpoints (Opinion/Position Papers, Essays, etc.)
PUB TYPE
(120) -- Information Analyses (070)
EDRS PRICE
/0701/PCO2 Plus Postage.
Constitutional History; *Constitutional Law;
DESCRIPTORS
Democracy; Democratic Values; Foreign Countries;
*Governmental Structure; Government Rae; Political
Power; Political Science; *Politics; Social Change
IDENTIFIERS
*Europe (East)
ABSTRACT
Establishing constitutional government involves not
simply the creation of a written document that purports to create the
political structure of a nation and guarantee rights to its people,
but 'constitutionalism" in the sense of meaningful and effective
adherence to constitutional norms of democratic organization and the
protection of individual liberty, even when the cost of that
adherence is sacrifice of what seams temporarily expedient. An
examination of the nature of constitutional democracy focuses on
antimajoritarian limits to the power exercised by democratic
political processes. The conditions in Central and Eastern Europe in
which constitutional creation would take place are surveyed. The
hardly ideal conditions include the need for fundamental political
and economic reforms, ethnic and cultural tensions, a lack of
established political parties, and potential military insecurity.
Despite potential barriers, the momentum for establishing
constitutional government existed throughout the region and it was
supported by most of the world. Additional elements that are central
to establishing a well-functioning constitutional democracy are
discussed, some of them specific to federal systems, some vital to
Among
any constitutional democracy whether federal or unitarr
provisions of the U.S. Constitution that axe critical to one or both
types of democracy are measures mandating cooperation among
constituent states as well as protection of their integrity; freedom
of movement; the Supremacy Clause mandating that the federal
constitution shall be the supreme law of the land; an independent
judiciary; control of military organizations; and the right to amend
the Constitution. (DB)
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CONSTITUTIONAL
REFLECTIONS ON THE ESTABLISHMENT OF
GOVERNMENT IN EASTERN EUROPE
by
Jonathan D. Varat
Professor of Law
University of California, Los Angeles
article should be addressed to
Correspondence reganding this
405 Hilgard
Varat, UCLA School of Law,
Professor Jonathan D.
90024-1476, FAX [phone]
Avenue, Los Angeles, California,
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Constitutional
Reflections on the Establishment of
Government in Eastern Europe
Jonathan D. Varat*
between an American anxious to
In the apocryphal exchange
archetypical Englishman,
improve the aesthetics of his yard and an
lawn as beautiful as yours?"
the American asks, "How can I have a
growing your lawn six hundred years
The Englishman's reply: "Start
to grow constitutional
The most effective advice on how
ago!"
probably inaccurately group
democracy in the countries that we
might take a similar tack.
together as belonging to Eastern Europe
in the West, particularly in
Successful constitutional democracy
number of Commonwealth nations,
the United States/ Britain, and a
It grew, with sporadic freedom-
did not sprout all at once.
soil, from at least the time
enhancing measures that fertilized its
Not only were there many periods during
of Magna Charta in 1215.
fragile or vulnerable, but any
which constitutional democracy was
how unusual its stable
serious reader of history must be aware of
tended in order to
maintenance is and how it must constantly be
Most importantly, it must be
flourishing.
assure xts survival and
agents of the populace/ but by
tended not just by the government
their participation and their firm,
the people themselves through
its preservation.
preferably peaceful, insistence on
constitutional government is both an
The establishment of
It is idealistic in its
practi!cal undertaking.
idealistic and a
entitled by virtue of their
recognition that all human beings are
government that operates
humanity to certain basic freedoms and to
University of
Associate Dean and Professor of Law,
° 1991.
*
California, Los Angeles.
It is mundanely practical
in the interest of their welfare.
recognition of human ambition and
insofar as it is premised on the
human qualities present
self-interest, and the dangers that those
It is also
political power.
when combined with the bestowal of
mechanisms of government
intensely practical in its search for
and substantive freedoms
structure and enforcement of procedural
abuse of government power
that successfully will constrain the
without disabling it entirely.
government," I mean not just
By "establishing constitutional
written document that purports to create the
the creation of a
rights to its people,
political structure of a nation and guarantee
of meaningful and effective
but "constitutionalism" in the sense
/c organization and
demo
adherence to constitutional norms of
"-arty, even when the cost of that
the protection of individu
To
temporarily expedient.
adherence is sacrifice of what seems
framework of democratic, liberty-
hold to a fundamental and stable
policy
of
tumultuous
most
the
despite
values
respecting
contending factions is the essence
disagretments among a nation's
of the constitutional spirit.
arguing against the admittedly
Much ink has been spilled
constitutional, as distinguished from
antimajoritarian features of
to that position
One powerful form of rebuttal
democracy)
pure,
"Blessings of Liberty" above
invokes the primacy of securing the
government,
of
grace
the
Not
control.
democratic
even
and Secession, 58 U. Chi.
See Sunstein, Constitutionalism
this claim.
for a probing response to
L. Rev. 633, 636-43 (1991),
heavily from Sunstein's useful account.
My discussion here borrows
2
4
but the inalienable and
democratically or otherwise selected,
rights to
natural rights of hunan beings, are the source of our
choice, for
freedom of conscience, to privacy, or to religious
himself and not
The "moral fact that a person belongs to
example.
whole"2 establishes that a person's
to others nor to society as a
even
that government,
rights precede the state
anu
natural
interfere with
democratic government, must justify its need to
Government cannot dispense what it does not
natural rights.
therefore cannot
rightly hold, and even a democratic positivism
dispense or condition basic human freedoms.
position, a second
Unlike the anti-positivist natural rights
democratic standard.
line of rebuttal assumes the relevance of the
not
that what
antimajoritarian
is
is
however,
insists,
It
Indeed, in choosing what elements to
necessarily antidemocratic.
that cannot be
establish as minimum constitutional conditions
constitutional amendment
altered without invoking a legitimate
the long-term
those elements that crucially support
process,
rights of
sustenance of democratic forms of government--such as
and
press,
speech,
of
freedom
and
participation,
political
majorities
association--must be put beyond the reach of current
range of democratic
precisely in order to preserve a vital
freedoms,
Expressive
majorities.
future
by
decisionmaking
both as natural
including freedom of inquiry, thus are justified
rights in the maintenance
rights of the person and as instrumental
guarantee of their
of a healthy, democratic regime, and so the
(1977).
Fried, Correspondence, 6 Phil. & PUb. Aff. 288-89
2
.
3
5
establishing
in
indispensable
preeminently
protection
is
I can do no better than to quote
constitutional government.
Justice Hugo Black of the United States Supreme Court:
questions is as
"Freedom to speak and to write about public
In fact the
important as is the heart to the human body.
If that heart be
privilege is the heart of our government.
stilled, the
weakened, the result is debilitation; if it be
result is death."3
of individuals to
More particularly, the absolute freedom
if constitutional
criticize their government must be guaranteed
That is why it is so disheartening to
democracy is to survive.
Constitution
discover that the most recent draft of the Romanian
limits on freedom of
apparently would, among other questionable
right to defaur
expression, allow the government to restrict the
As a distinguished American law
government.'
the country or the
professor first wrote a generation ago:
its powers
"[P]olitical freedom ends when government can use
[T]he presence or
and its courts to silence its critics.
seditious libel defines
absence in the law of the concept of
it makes seditious libel an
If
the society.
.
.
.
.
.
what its other
offense, it is not a free society, no matter
3. Milk Wagon Drivers Union v. Meadmoor Dairy, 312 U.S. 287,
301-02 (1941).
and Eastern
Central
Pommy Report_of Proceedings,
4
.
on the Draft
Assistance Workshop
European Law Initiative Technical
Romanian Constitution, p.2 (August 19-23, 1991).
4
characteristics.0
depart from pure
Structural elements of constitutions that
representation--may
majoritarianism--or even from pure proportional
liberty, by dividing
also be justified as strategies for preserving
When a bicameral legislature's second house
and balancing power.
population, as when it is
is not elected strictly according to
federal nation, the
apportioned by constituent sub-sovereigns of a
perspective that will promote
design is to introduce a different
deliberation from distinctive viewpoints and offset
more prudent
Separating the legislative,
the possibility of majority tyranny.
legislative competence
executive, and judicial powers, and dividing
republics or states, are also
between national and constituent
to foster more
designed to establish competing centers of power
is brought
sustained reflection before government's coercive power
the concentration of power
to bear on the citizenry and to thwart
is the very definition of
in one or a small set of hands that
superimposed on the
These multiple centers of power,
tyranny.
can act to prevent
personalities,
innate ambitions of human
resistance of the others.
domination by one center because of the
rejects the romantic notion of
The theory of constitutionalism
It does
individuals.
utopian societies consisting of altruistic
the people, but creates a
not assume cooperation for the good of
It
dialogue, and compromise.
structure that forces cooperation,
for
different centers possess real power,
presupposes that the
of Speech in_ America
Kalven, A Worthy Traditiom _Freedom
5.
63 (Harper & Row 1988).
5
theory.
without that condition the practice will not match the
crucial in American
Tbat is only one reason why it has been so
constitutionalism, at least, that the judicial branch was made
with life tenure
independent by providing the aipointed justices
not be reduced--in
and guarantees that their salaries
will
officials
retaliation for decisions unpopular with other government
or for any other reason.
elaborated by
Professor
recently
notion,
arresting
The
legislative
whose
subjects
some
are
that there
Sunstein,
that
examination might be so debilitating to the political process
reach of politics also
they should be constitutionalized beyond the
Sunstein suggests that keeping potentially
deserves mention.6
private property or
explosive and intractable issues such as
prohibitions on
religion off the political agenda by constitutional
by limiting
their infringement may facilitate the political process
factional conflict in government.
example may be helpful.
A little elaboration of the religion
the constitutional
Besides acting as an additional support for
American
the
religion,
one's
exercise
to
freely
right
establishment of
Constitution's First Amendment ban on government
from religious strife.
religion was designed to liberate politics
religion tends to
The "belief that a union of government and
animated
has
religion"7
degrade
and
government
destroy
Sunstein, supra note 1, at 639-40.
6.
In the EneI,
Engel v. Vitale, 370 U.S. 421, 431 (1962).
7
violated
that New York state officials
case, the Supreme Court held
composing a nondenominational prayer
the Establishment Clause by
6
draft
Bulgarian
The
jurisprudence.
Clause
Establishment
constitution, b.: denominating the Eastern Orthodox Church as the
"traditional Bulgarian religion,"8 and the Polish government's
activities,'
school
public
into
religion
of
introduction
underpinnings of that
dangerously appear to ignore the pragmatic
belief.
majoritarian
That departures from leaving all matters to
Creldom
political processes are sometimes justified to secure human
of course, that any
or to facilitate democratic rule does not mean,
justification ought
lesser justification will do, or that any such
particular norms as
not to be scrutinized carefully before adopting
ordinary
constitutionally fundamental and so beyond the reach of
insofar as
politics. A constitutional democracy is legitimate only
governed,
the government derives its power from the consent of the
the people
exercise
having agents
of
necessity
of
the
and
interests of government
government power introduces the separate
even Clough
schools,
and authorizing its use in the state's public
individual students could opt not to repeat it.
Report of a
Constitutional Reform in Bulgaria: A Summary
8.
and Eastern
3, The American Bar Association Central
Workshop, p.
1991).
European Law Initiative (CEELI) (June 19-22,
Rapaczynski, Constitutional PolkOdasLn_aland: A_Report
9
58 U.
_tee A,
weeks before
Chi. L. Rev. 595, 606n.24 (1991) ("In August 1990, two
prior
any
without
and
year
the school
of
beginning
the
regulation
consultations with Parliament, the government issued a
fact that
introducing religion in public schools, despite the
opposed the
public opinions polls had indicated that most parents
presidential
[Although it removed the issue from the
move.
been paid
election campaign,) very little attention seems to have
separation of church and
to its long-term consequences on the
state.")
7
9
the maintenance of their own positions as
an
officials
in
additional factor needing control--a factor surely known all too
Controlling
well among the peoples of Central and Eastern Europe.
by effectively rendering them
even democratically elected agents
constitutional
subject to the rule of law is a key ingredient of
Assuming the will exists to make democratic politics
democracy.
establish power-
and respect for human rights the norm, and to
allocating arrangements that will effectuate those aims, we need to
context in
address the realities of internal and international
and the
which the constitutional creation process must take place,
built into each
specific content of the provisions that ought to be
Neither nation by nation
country's constitutional framework.
delineation of what a workable
nor a comprehensive
analysis,
Some limited
is possible here.
constitution should include,
observations may be of interest, however.
Constitutional Creation io_Context
in which those who
A realist must begin with the conditions
In Central
would create constitutional democracy find themselves.
ideal. The transition
and Eastern Europe the conditions are hardly
democratic regimes
from authoritarian communist systems to free
is itself always
must overcome significant impediments. Transition
and
impoverishment
economic
instance,
this
In
difficult.
system--
uncertainty about the nature of the future economic
to
commitment
the
of
intensity
and
scope
the
especially
be
privatization and the development of a market economy--must
8