Liberty, Prudence, Imperfection, and Law

“How Bad Constitutions Undermine Ordered Liberty and the Rule of Law,” By Bruce P. Frohnen

This essay was written by Bruce P. Frohnen for Nomocracy in Politics

The U.S. government, along with a significant number of American judges and academics, have been spending a good deal of time and money in recent years working to “foster democracy” around the world.  Who can forget the “nation-building” that was supposed to turn Iraq into a constitutional paradise and now is being peddled to the people of Afghanistan?  This is merely the latest wave of constitution-drafting.  Beginning with the de-colonization of European empires following World War II, a variety of countries have received Western advice and assistance, for good and ill, as they have tried their hands at constitutional government.

Sadly, the results have been far from encouraging.  The increased number of nations ruled, at least formally, by constitutional governments was supposed to bring a concomitant increase in peace, prosperity and, especially, the rule of law.  But, while there have been some successes, in far too many cases adoption of a written constitution has brought only disappointment in the form of continuing corruption, political instability, and even bloodshed.

Why is this so?  One significant reason is the nature of the constitutions themselves.  “Democracy” having come to mean all good things, it is not surprising that Western observers and advisors have demanded far too much far too soon of new governments.  The irony here is that the very feature of these constitutions that their drafters deem most important—a charter of rights to protect individuals and guarantee them the services of the state—has been a prime reason for their failure.

Of the 116 constitutions written since 1985 (not all of them still exist), every one of the 106 on which there is reliable information contains a charter of rights.  101 of these constitutions provide for these rights to be enforced against the government and its laws by a constitutional court.[i]  Clearly, then, constitutions enshrining rights have become the norm.  And I am not, here, arguing that rights are unimportant, or even that a formal statement of fundamental rights, enshrined in the constitution, is not a valid means by which to help bind the rulers to limited government and the rule of law.  But the seemingly blind faith constitution drafters (and far too many people themselves) place in mere statements on parchment has raised expectations to irrational levels.  As important, it has prevented people from recognizing that it is essential to ordered liberty that governmental power be limited in its general scope.  Instead, reliance on parchment rights encourages a self-destructive emphasis on simply laying down specific exceptions to governmental power that is in principle without limit.  Indeed, this basic conceptual problem has led to inclusion of “positive rights” in the constitutions of countries that cannot possibly perform on the promises made thereby, further delegitimizing governments already struggling with the basic job of keeping the peace without resorting to outright oppression.

No doubt many would see this criticism as mere nay-saying, putting a negative spin on real progress in the spread of constitutional government.  But even the “official” evidence regarding the spread of ordered liberty at a time, since the fall of the Soviet Empire, when we should be experiencing a flowering of freedom, has been far from what we have been led to expect.  The percentage of countries ranked as “free” by the civil libertarian Freedom House has increased from 29 to 45 over the last three decades.[ii]  But “progress” has hardly been steady, let alone explosive.[iii]  Freedom House notes particular concerns regarding corruption and dangers to liberties in 2011 in Ukraine, Hungary, South Africa, and Turkey.  Moreover, the broad categories of “free,” “partly free,” and “not free” obscure substantial abuses and worsening conditions in countries maintaining their status within a given category, and especially within those nations already deemed not free.  Especially in sub-Saharan Africa, countries already suffering under autocratic regimes have experienced significant crack-downs, particularly in the area of freedom of association and respect for the rule of law.[iv]  Perhaps most important, these ratings include those nations of the Atlantic world that have had well-established, relatively free constitutional governments for many years.  Subtracting the 24 nations of Western Europe, along with the United States, Canada, and Australia (to go no further) reduces the percentage of “free” countries in the remaining world to 36—little over one third.  And this, of course, counts by nation, not population, ruled by “free” governments.

It seems at least questionable whether the structures of contemporary constitutionalism can produce the results desired by their proponents.  In particular, constitutions in recent decades have emphasized the duties of the state to provide goods for the people ranging from medical care to “equitable development,” along with more traditional individual and political rights.  Meanwhile, political violence remains endemic and ordered liberty uncommon.

For example, Ethiopia’s constitution in Articles 43 and 44 guarantees people the right to a clean and healthy environment, to improved living standards and to “sustainable development.”  At the same time, however, a 2011 BBC investigation found in the southern region of Ethiopia “villages where whole communities are starving, having allegedly been denied basic food, seed and fertiliser for failing to support [the now-late] Prime Minister Meles Zenawi.”  Also evidenced were “mass detentions, [and] the widespread use of torture and extra-judicial killings by Ethiopian government forces.”[v]

The Constitution of Uganda commits the government to providing equitable development, food security, medical services, and gender balancing, among other rights.  This at the same time that the regime practices summary suppression of media outlets and non-governmental organizations deemed too critical of the regime and is persistently accused of employing torture through its anti-terrorism organization.[vi]  Examples could be multiplied many times over—from Eastern Europe to the many regions of Asia, to Latin America and the Middle East.

Given the huge gap between constitutional promise and political reality, it is little wonder that civil wars, coups, and coup-attempts are sadly common.  Between 1960 and 2001 there were 82 successful coups in Africa, and another 16 between 2000 and 2012.[vii]  Of course, Africa is not alone in suffering political instability and violence.  There have been over a hundred coups and coup attempts in Africa, Latin America, and Asia since 1950, with at least fourteen successful coups between 1997 and 2006.  And this does not include the massive bloodshed of recent civil wars in Rwanda, Kosovo, Sudan, and Congo-Kinshasa, to name only a few.

It would be easy for constitutional lawyers in particular to dismiss such tragedies as “not our fault” because they are rooted in the failure of regimes to live up to the promises of their constitutions.  And the world has long known the cynicism of sham constitutions.  But it is both self-serving and simplistic to dismiss the gap between promise and performance as the result of powerful bad actors.  Indeed, the question must be asked:  “is it possible for a regime, particularly in areas of the world lacking in material wealth, to live up to the constitutional promises currently deemed essential to constitutional government?”

The 1998 constitution of Sudan puts the issue in stark terms:

The State shall give due regard to social justice and mutual aid in order to build the basic components of the society, to provide the highest standard of good living for every citizen, and to distribute national income in a just manner to prevent serious disparity in incomes, civil strife, exploitation of the enfeebled and to care for the aged and disabled. 

The Sudanese state, here, is given the responsibility (and the right) to create the good society for its citizens—constructing the components of that society, establishing a high standard of living, distributing income “fairly,” and caring for those not able to care for themselves.  Would that it had at least managed to get its own forces to stop committing genocide in its Darfur region.

Whatever one makes of current economic crises in longstanding liberal democratic nations, the question arises whether states in less wealthy regions possibly can perform on the all-encompassing promises that seem demanded of them.  Such pressures seem extreme, given the scarcity of economic resources in developing countries in particular.  To constitutionalize—that is, to make a higher law duty—a state’s responsibility for establishing and maintaining a fundamentally new, just, and prosperous economic, political, and social order, while expecting in addition respect for individual and political rights seems, frankly, a recipe for disaster.

The call on governments to provide quick and easy economic development has both given too much power to the rulers and put too much pressure on them to “produce” material goods they simply do not have the means to produce, particularly in the time frame and on the massive scale demanded.  The result has been a predictable combination of corruption and “clawing back” of even the most fundamental rights, such as freedom of assembly, associated with constitutional government.  Given the demands being placed on poor governments in regions where poverty is extreme and widespread, it should come as no surprise that rulers have come to see themselves as by nature powerful people with grand tasks, who are being thwarted by evil enemies who must be silenced.

In sub-Saharan Africa in particular, the argument has been made that the central roadblock to development has been ethnic attachment that prevents sufficient loyalty to the state and its mechanisms.  But far more damaging has been placement of the state at the center of power and especially of high expectations, with control over economic goods in nations where scarcity is the norm and starvation a persistent threat; such conditions make the state a center of conflict among those who must compete in a zero-sum game on behalf of their families and neighbors.  The result is a state that is not capable of remaining above the fray of interest politics, instead becoming the battleground itself.

Positive rights sometimes are termed “aspirational” to denote the inability and even unwillingness of the state to put them into effect.  One should not be surprised that such dissembling fails to save the state’s legitimacy when it fails to produce on its stated goals.  When there is only one “pot” of money and power, and that pot is known to have broken many, important promises to the people, violent struggle for control of that pot is all but inevitable.

Nations of limited resources and often recent establishment have been called upon to command, through their constitutions, the empowerment of people, freeing them from oppression, poverty, and the bonds of custom, to make them into members of a cosmopolitan, egalitarian, and relatively affluent society, complete with guaranteed provision of numerous public, government services, all in combination with respect for individual and political rights.  The idea was that placing the goals of just development into the higher law of the constitution would make them into central aspirations and spur the nascent states to appropriate action.  The result has been dashed hopes and political violence.  Perhaps it is time for our academics, judges, and government advisors to both recommend and themselves practice a bit more humility in the demands, and plans, for constitutional government.


[i] Stone Sweet, Alec. “Constitutionalism, Legal Pluralism, and International Regimes.” Indiana Journal of Global Legal Studies 16, no. 2 (Indiana University Maurer School of Law, 2009), 630.

[ii] Puddington, Arch. “Freedom in the World 2012: The Arab uprisings and their global repercussions.” Freedom in the World (Freedom House, 2012), 28.

[iii] Ibid., 2. More countries registered declines than exhibited gains over the course of 2011 in political rights and civil liberties.

[iv] Ibid., 8. Nations listed here included The Gambia, Ethiopia, Burundi, Rwanda, and Djibouti, but political oppression also increased in Ethiopia, Uganda, and Sudan.

[v] “Ethiopia ‘Using Aid as Weapon of Oppression'” BBC News. (BBC, 08 May 2011).

[vi] Hamilton, Alayna, “Political Oppression in Sub-Saharan Africa.” Topical Review Digest: Human Rights in Sub-Saharan Africa (University of Denver, 2012), 49.

[vii] Collier, Paul, Anke Hoeffler, “Coup Traps:  Why does Africa have so many Coups d’Etat? Paper presented at the annual meeting of the American Political Science Association (Centre for the Study of African Economies-Oxford University, 2005), 11.

3 Responses to ““How Bad Constitutions Undermine Ordered Liberty and the Rule of Law,” By Bruce P. Frohnen”

  1. gabe

    Bruce:

    Very sound piece that gets at the core of the problem. A “good constitution” (sorry, Mike Rappaport) does not simply arise ex nihilo. It requires a foundation embedded in social practice, myths, beliefs, etc.
    We err when we try to foist upon economically and politically impoverished nations our conception of proper government.

    Moreover, there is in many instances a practical reason for providing the state with constitutional responsibility for assuring economic and other ‘positive rights and this militates against a working constitution of limited government.
    Specifically, many of these nations are the product of rather diverse and hostile ethnic groupings. (Think of our own Philadelphia convention on STEROIDS!!!). In order to reach an agreement on a charter, certain assurances are demanded from each, and by each, ethnic group such that none of them will be denied access to power, and further that each group shall receive a proportional share of power and wealth / influence. Michael Greve has termed this a “consociational constitution” (The Upside Down constitution) which by defintion will aggrandize the state. Given such antecedent conditions, can one expect anything different. Nor should one expect anything other than failure when an impoverished, politically backward nation is suddenly confronted with the prospect of providing more than its history, culture and ethics can sustain or even envisage.

    Again, a great piece.

    take care
    gabe

    Reply

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