The Profession

vided at student orientations. of College Student Personnel (November): Leming, James S. 1978. "Cheating Behavior,
21. "Report Cites High-Tech Cheating at 545-51. Situational Influence, and Moral Develop-
UC," San Francisco Chronicle, 8 February Bushway, Ann and William R. Nash. 1977. ment," Journal of Educational Research
1986. "School Cheating Behavior," Review of 71: 214-17.
22. UCLA publishes an annual Teacher's Educational Research 47: 623-32. Steininger, M., R. E. Johnson, and D. K.
Guide for faculty with sections defining aca- Chisholm, Donald. 1990. "Between Leibnitz Kirts. 1964. "Cheating on College Exam-
demic dishonesty and outlining the univer- and Voltaire: Exams and Grading in a inations as a Function of Situationally
sity's procedures for handling cases. I did not Less than Perfect World," PS 23: 600-04. Aroused Anxiety and Hostility," Journal
read this guide until I sat down to edit this Haines, Valeri J., George M. Diekhoff, of Educational Psychology 55: 317-24.
essay. Emily E. LaBeff, and Robert E. Clark.
23. At Berkeley, the most common sen- 1986. "College Cheating: Immaturity,
tence is up to 30 hours of community service, Lack of Commitment, and the Neutraliz-
the next most common is suspension for one ing Attitude," Research in Higher Educa- About the Author
semester. "Report Cites High-Tech Cheating tion 25: 342-54.
at UC," San Francisco Chronicle, 8 February Hawley, Christopher S. 1984. "The Thieves 'Donald Chisholm is an assistant professor
1986. of Academe: Plagiarism in the University in the department of political science at the
24. Some institutions resist doing so for System," Improving College and Univer- University of California, Los Angeles, and a
fear that it will somehow convey the sity Teaching 32: 35-39. frequent contributor to PS.
"wrong" message to its incoming students. Jendrek, Margaret Plan. 1989. "Faculty
I do not subscribe to this opinion. Reactions to Academic Dishonesty,"
Journal of College Student Development
30: 401-06.
Johnson, Charles D. and John Gormly. 1972.
References "Academic Cheating: The Contribution
of Sex, Personality, and Situational Varia-
Barnett, David C. and Jon C. Dalton. 1981. bles," Developmental Psychology 6:
"Why College Students Cheat," Journal 320-25.

The Comparative Study of Constitutions:

Suggestions for Organizing the Inquiry1
Donald L. Robinson, Smith College

Americans have a special incentive— to democracy was set forth in the natural for Americans to take a
almost a vocation—to understand Declaration of Independence and the special interest in constitution-
constitutionalism. The United States Gettysburg Address. The commit- making in other countries. Some of
was the first modern nation to base ment to liberty, established in a writ- our intellectuals have insisted that
its government on a written constitu- ten constitution and in bills of rights constitutions are cultural artifacts,
tion. Ever since the founding, the and defended by a powerful legal and that it is as foolish to try to
Constitution has had a unique place community, goes even deeper. For transplant our Constitution to alien
in the nation's consciousness. It has Americans, democracy is a quest, of settings as it would be to import
been the adhesive of American varying intensity; constitutional gov- constitutional arrangements from
nationality. Not land (our territory ernment is the steady commitment. abroad. 4 Over the years, however,
has changed over the years), not The American commitment to con- some American lawyers and political
blood (we are all immigrants), but a stitutionalism is not only deep and scientists have operated on different
commitment to the Constitution proprietary; it is confident. We often assumptions. In Latin America dur-
binds us together. The Constitution quote Gladstone's aphorism about ing its several epochs of constitution-
is a symbol for what makes us a our constitution being the "most making, in Japan and Germany
nation: a shared commitment to gov- wonderful work ever struck off at a following World War II, in Africa as
ernment by consent, its powers given time by the brain and purpose the shackles of colonialism were
enumerated, checked and balanced, of man." There have been problems broken in the 1960s, Americans have
its commands articulated in a rule of in American life over the years, and been willing to give advice and lend a
law. to correct some of them, we have hand in preparing drafts. 5
Recent developments around the had to amend the Constitution. The The Bicentennial of the Constitu-
world have highlighted the tension basic framework endures, however, tion stimulated some reflection on
between constitutionalism and and we believe it confirms the wis- these efforts. So did the drive of
democracy.2 Ever since its founding dom of its framers. 3 many nations in the Third World—in
as an independent nation, America In light of our own experience and Latin America, Africa, and Asia—to
has been committed to both, though our sense of ourselves as a "city on throw off repressive regimes and
in varying degrees. The commitment the hill," it has seemed perfectly embark upon the quest for more

272 PS: Political Science & Politics

 The Comparative Study of Constitutions

democratic governance. eight nations (France, Greece, USA, ment of the Cutler-Sundquist argu-
Sensing the need for an interdisci- Yugoslavia, Spain, Egypt, Venezuela, ment, entitled Divided We Govern
plinary, international inquiry into and Nigeria), and another on federal- (Yale University Press, 1991), chal-
this phenomenon, the American ism in eight nations (India, USA, lenging the notion that the national
Council of Learned Societies (ACLS) Belgium, Canada, Switzerland, government is more productive when
mounted a Project on Comparative Spain, Malaysia, and Yugoslavia).6 the branches are controlled by the
Constitutionalism in 1989 and 1990. In 1989, Columbia University Law same party. The Politics of Divided
In Uruguay, Zimbabwe, Thailand, School concluded a study of "the Government (Westview Press, 1991),
Berlin, and Hungary, scholars and influence of the U.S. Constitution edited by Gary W. Cox and Samuel
political leaders from many nations abroad" with the publication of a Kernell, examines the causes (not all
attended a series of institutes, giving volume of papers focusing on the electoral) and effects (particularly
papers and engaging in a spirited protection of rights under various egregious in fiscal and monetary
exchange of views. constitutional governments.7 Since affairs) of divided government and
It is safe to say that those who then, Columbia has sponsored a puts the phenomenon in comparative
conceived and supported this project, number of dialogues with constitu- context by examining earlier periods
and those who assumed responsibility tionalists in Africa and China. Last of American history and the situation
for its implementation, had no idea March, the law school at Emory Uni- at the state level.9 The argument
how timely it would turn out to be. versity held a symposium on com- about divided government is far
It was mounted because people parative constitutionalism; several from over, but it has clearly moved
thought it would be valuable for papers and commentaries were pub- to a new plane.
Americans to view their own consti- lished in Emory Law Journal (Sum- Even textbooks for courses in
tutional tradition comparatively and mer 1991). American national government
because people thought constitution- Some studies have had an even reflect a growing sophistication and
makers in other parts of the world, broader focus. This year Brookings willingness to analyze the American
particularly the Third World, might will publish a volume, entitled Do system comparatively. A good exam-
benefit from a comparative perspec- Institutions Matter?, edited by Kent ple is The Challenge of Democracy,
tive on their efforts. Weaver and Bert Rockman. The by Kenneth Janda, Jeffrey M. Berry,
The ACLS project is winding book presents case studies comparing and Jerry Goldman. The text draws
down now, but events around the the performance of presidential and heavily on Janda's multinational
world that have given it such impor- parliamentary governments (mainly comparison of party systems and
tance are proceeding apace. Both at the United States and Great Britain) includes a feature sprinkled through-
home and abroad there is heightened in dealing with environmental protec- out the book, entitled "Compared
interest in constitutional questions: tion, energy, military policy, entitle- With What?" 1 0
the sense among thoughtful Ameri- ments, and other issues. Also note- Besides the U.S. Bicentennial, the
cans that governance here is straining worthy is a book by Klaus von other great stimulus to a comparative
in the face of modern challenges and Beyme, of the University of Heidel- analysis of political systems is of
would benefit from a searching criti- berg, Germany, entitled America As course the series of revolutions that
cal analysis; the sense in the Third a Model: The Impact of American swept the world in the late 1980s.
World that the state must be Democracy in the World (New York, American professors of law, eco-
strengthened and at the same time be 1987). Von Beyme's book, focusing nomics, political science and history
made more accountable to the people especially on the presidential system have leapt into the fray, eager to
and more sensitive to human rights; of government, federalism and judi- contribute what they know to the
the sense in Eastern Europe that cial review, is particularly valuable development of democratic institu-
both the state and the economy must for its citation of foreign-language tions, particularly in Eastern Europe.
be liberalized, but without unendur- (mostly European) sources on the What has been lacking in this
able suffering and reckless sacrifice subject. intellectual rejuvenation, however,
of communitarian values. The quality of critical studies of has been an institutional commitment
These concerns draw Americans the American system of governance to the study of constitutionalism and
and people in other nations toward has also improved in recent years, in constitutions. There is at least one
a common conversation about the part as a consequence of attentions notable exception: a project at the
nature of constitutionalism. focused by the Bicentennial. During University of Chicago, directed by
the 1980s, owing in large measure to political scientist Jon Elster, that
writings by Lloyd Cutler and James aims at maintaining an archive (or
Current Efforts L. Sundquist,8 people began to think "databank," as they call it) of docu-
Besides the ACLS project, there in new ways about a new tendency ments relating to the framing of new
have been other notable efforts to in American governance toward constitutions in seven countries
promote the comparative study of "divided government," that is, con- (Albania, Bulgaria, Czechoslovakia,
constitutions. The Bicentennial of the trol of the White House and at least Hungary, Poland, Romania, and
United States Constitution occa- one house of Congress by different Yugoslavia) and developing method-
sioned several of them. The Ameri- parties. This fall, David Mayhew, of ologies for analyzing this vast body
can Enterprise Institute held a con- Yale's political science department, of material. Noting that events in the
ference on constitution-making in published a highly skeptical assess- region present a "unique opportunity

| June 1992 273

 The Profession

for comparative analysis [of the] valuable insights from other cultures of Independence, and it was another
recasting of political and legal insti- and other disciplines than one's own. year and a half before the Constitu-
tutions," the investigators will use It is the odd American now who goes tion was ratified by the states. Only
the materials to answer questions to other countries in a spirit of bear- then did the elite, pressed hard by a
about constitution-making in general. ing the truth. Intellectuals are sensi- clamorous populace (what James
Its "databank" alone justifies the tive to the value of other cultures
MacGregor Burns has called "cob-
project; it will be enormously valua- and aware that institutions are rooted
ble to scholars, both within and out- blestone democracy"), turn to the
in those cultures. There is a fascina-
side the Chicago project. The Spring drafting of a bill of rights. The
tion with how other systems work
1991 issue of The University of Supreme Court did not assert the
and with what we might learn about
Chicago Law Review, entitled ourselves by examining the dialectic power of judicial review until 1803
"Approaching Democracy: A New of cultures and institutions in other and did not exercise it a second time
Legal Order for Eastern Europe," settings. The study of constitutional- until 1857, 70 years after the
contains articles by Gerhard Casper, ism offers an opportunity to focus framing.
Jon Elster, Akhil Reed Amar, these concerns on a topic that is both Japan is another example. The
Lloyd Cutler and Herman Schwartz, comprehensive and fundamental. Meiji Restoration took place in 1868.
Andrzej Rapaczynski and Cass Sun- The leaders of the new Japan spent
Written constitutions are a relative- two decades reorganizing the land-
stein, among others, displaying some ly recent phenomenon in the history
of the firstfruits of this effort. holding system, disarming the
of nations, but they are now widely samurai, reforming the schools,
There is, however, one major lim- accepted as part of the essential
building a modern army, developing
itation to the Chicago project. It is
the rudiments of a party system,
confined to the seven nations of
reconstituting local government and
Eastern Europe. It is also guided by If we cannot help poor revising the cabinet system, before
the concern of Western scholars to
they turned to drafting a constitu-
understand what is happening in nations improve their tion. 14 By 1889, more than three
Eastern Europe. The organizers
explicitly eschew any intention of governance, we cannot decades after the Restoration, they
lending assistance to political leaders were finally ready to commit them-
in Eastern Europe in their constitu-
help them at all. selves to a written constitution.
tion-framing efforts. No doubt schol- Modern nations may not have the
ars associated with the Chicago pro- luxury of waiting so long. For one
equipment of a modern nation. 12 Yet
ject will have occasion to make sug- thing, popular demands for democ-
constitutionalism bears many inter-
gestions to their contacts in Eastern racy are more insistent than they
pretations, and constitutions take
Europe. The design of the project were in the days when liberal con-
many forms. Every nation, including
does not lend itself, however, to the stitutions emerged from the competi-
the United States, has much to learn
generation of solutions to practical about the subject.13 tion of elites. Though the point is
political problems." That is not often made in an exaggerated way, it
For those considering whether or
meant in criticism of the Chicago is true that Japan's culture is more
not Americans might have something
project, but it does tend to dis- amenable to discipline than many in
to contribute to the world's quest for
tinguish it from the effort called for the world today. By contrast, today's
improved forms of democratic gov-
in these pages. new governments need legitimacy
ernance, two questions need to be
both acutely and urgently; adopting a
distinguished:
constitution seems an essential part
The Challenge of the strategy for gaining it. l5 But
• where do the cultivation of a spirit when new nations stumble in these
Current developments in Latin of constitutionalism and the draft- first attempts, we ought to recall our
America, Africa, and Europe, and to ing of a constitution rank among own early history.
a lesser extent in Asia, present a a new nation's needs? and Despite these ample grounds for
great challenge to those who place • how ought we to prepare ourselves modest expectations, people are
their faith in constitutional democ- to assist in this process? beginning to understand that effec-
racy. People want self-government. tive, accountable government is a
They mistrust authoritarianism and On the first question, Americans true priority, even in the most
resent hegemony. They long to estab- who forget their own history need to desperately poor parts of the globe.
lish governments that can promote a be reminded that drafting constitu- It used to be held that democracy
decent standard of living while tions is not necessarily the first thing required a minimum of material well-
respecting basic rights, governments a nation needs to do. In our own being, and accordingly that the first
capable of protecting them from out- case, we did not adopt the Articles priority was to lift the standard of
side control and internal violence. of Confederation until March 1781, living in developing nations. We now
Meanwhile, intellectuals around and the government it established realize that aid funnelled through
the world seem ready for approaches was judged a dismal failure. The corrupt, ineffective regimes rarely
that are genuinely interdisciplinary Convention that drafted our endur- reaches its intended recipients. If we
and comparative. There seems to be ing Constitution did not convene cannot help poor nations improve
a new openness to the possibility of until 11 years after the Declaration their governance, we cannot help
274 PS: Political Science & Politics
 The Comparative Study of Constitutions

them at all. lar responsibility here. I write of the face of profound ethnic and
How can outsiders help the people needs, not who should meet them.) cultural conflicts.
of these regions in the quest for such Many people believe that the
governance? This is a relatively new answer lies in distributing functions
question in human history. Colonial Institutional Needs within a federal union. There are
powers were interested in the gover- many models and some successes,
nance of these regions, but their goal 1. We need a place that can pro- but the problem remains one of the
was control. Some Americans and mote interdisciplinary dialogue most difficult challenges for constitu-
other outsiders still have colonial involving scholars in the law, the tionalists. Which are the minimum
instincts, but we proceed here on the humanities, and the social sciences functions that must be performed by
assumption that a substantial number (particularly political science and his- the center, which are best delegated
of people want to help people in tory), and including area specialists. to the periphery, and how can the
other lands toward se//"-government. 2. We need a place that can edit distribution be monitored, and how
How can they be of assistance? and publish a scholarly journal, and can governance be kept accountable
The response must be dialectical. perhaps a newsletter describing the amid such complexities?
On one hand, it must take guidance progress of constitution-writing 2. By what stages can constitu-
from voices in the affected regions. efforts around the world and the tional ideals be achieved? Many peo-
It must reflect a deep and sympa- involvement of Americans (and other ple in Central Europe, and many
thetic understanding of the region's consultants) in these efforts. outside advisers, believe that demo-
culture. On the other hand, it must 3. We need a place that can help cratic governance requires free
proceed from a profound and self- to train graduate students and other markets. The paradox is that the
critical understanding of the spirit of young scholars, both foreign and conversion to free markets seems to
constitutionalism and the ways in American, in the comparative study require strong state intervention.
which that spirit has been embodied of constitutions. How can an accountable govern-
in various forms of governance. 4. We need a place that can ment, committed to human rights,
The elements of such an under- involve both scholars and a wide deal with the resistance of those who
standing are present in America, but range of practitioners (political lead- will inevitably be hurt by the conver-
they are not well focused on the ers, lawyers and judges, journalists, sion? In Africa, in the Middle East
comparative study of constitutional- civic educators) in its activities. and Northern Ireland, and in many
ism. In institutions of higher learning parts of Asia, ethnic conflicts make
(universities, research institutes, it very difficult to achieve consensus
foundations), scholars pursue re- on structures and processes of gov-
Substance of the Inquiry ernment. Is it possible in such cir-
search in area studies. Some of these
efforts are interdisciplinary; some are cumstances to establish governments
In defining the subjects of inquiry
comparative. But none that I am strong enough to keep the peace,
for a center on the comparative
aware of focuses on the comparative without endangering vital rights? By
approach to constitutionalism, we
study of constitutionalism. A partial what stages ought nation-builders to
need to stay close to political events.
exception can be found in the project proceed?
The subject has a philosophical
at the University of Chicago, to dimension, but it needs to be 3. In the United States, constitu-
which I have already referred, and at anchored in political and cultural tionalism has been closely tied to lib-
certain law schools, where specialists reality. Indeed, that is its power and eralism and the rule of law. In other
focus on the study of legal systems. fascination, that it operates in the cultures, individualism is less well
Few, however, if any of these are zone between theory and practice, engrained and communitarian ideals
broadly comparative, and fewer still drawing the two together. more highly valued. Is it possible to
genuinely interdisciplinary.16 Taking cues from recent events, it disentangle constitutionalism from its
If it is true that the elements of the is possible to illustrate the kinds of liberal affinities and ground the quest
field are present in American re- questions that might be addressed. for accountable governance in other
search institutions, what is needed— 1. Woodrow Wilson's vision of a principles? A Westerner hardly
equally for the sake of American world "safe for democracy" was knows how to formulate this prob-
assistance to new nations and to plagued by the problem of self- lem, but a dialogue between heirs of
encourage the development" of a determination. By 1963, John F. Judeo-Christian culture and those of
neglected field of study—is to pull Kennedy had retreated to the notion Islamic, Buddhist, and Hindu back-
them together and focus them on the of a world "safe for diversity." A ground might point the way to more
subject of constitutional governance. century of world wars and liberation universal ideals.
How might this be done? struggles shows how difficult it has 4. We also need a more particular
Let us begin by citing several been to achieve even Kennedy's dialogue on human rights and judi-
aspects of the need, then consider modest goal. In the Czech and cial protection. Some Americans are
how to proceed to meet these Slovak Federal Republic and the suspicious of attempts to "guaran-
requirements. (To avoid the passive former Soviet Union, in Ethiopia tee" social and economic rights, fear-
voice, I will use the pronoun "we," and Sri Lanka, in Canada and Peru, ing that we may jeopardize civil and
though I intend no assumption that nation-builders are still trying to find political rights by stretching the
any specific institution has a particu- ways to forge a measure of unity in analogy too far. Others insist that

June 1992 275

The Profession

equality is an integral part of the role of markets in constitutional Nations must decide for themselves
constitutional ideal and must be kept regimes. The inquiry needs somehow whether framing and implementing a
alive, if we are to nurture a commit- to stay in touch with practical new constitution is a priority. Ameri-
ment to constitutionalism, especially affairs, with the work of men and cans, in relating to other nations,
in the Third World. This debate, in- women who are struggling to realize must remember that, in our own his-
cluding a consideration of alternative the promise of effective, accountable tory, the achievement of constitu-
strategies for guaranteeing a mini- government in diverse circumstances. tional ideals has been fitful and that
mum standard of material well-being, Separate colleges and universities we still have a lot to learn. As
is an urgent part of the modern can invigorate their curricula by Walter Murphy reminds us in his
debate over constitutionalism. focusing interdisciplinary efforts on "Recessional Reflections," our ten-
5. Finally, there are questions constitutional studies, but none by dency to equate constitutionalism
about the structure of government itself has sufficient resources to have with liberalism and with the rule of
and modes of representation and much impact (save perhaps in cur- law is much too facile.
accountability. Latin American and ricular development) on the field in There is no better way to deepen
Eastern European nations are trying general. our own understanding of constitu-
to decide between presidential and Perhaps the professional associa- tional ideals than to enter into dia-
parliamentary models, or some com- tions (the American Political Science logue with people from other cultures
bination. Should powers of rule- Association, American Historical and traditions. We would all benefit
making, enforcement, and admin- Association, Association of Ameri- if this inquiry were broadened, deep-
istration be fused or separated? can Law Schools, and others, in con- ened, and sustained.
Should the electorate choose a repre- junction with their international
sentative assembly, to whom the counterparts) can play a role. The
work of forming and monitoring a councils of these associations are
government is delegated? Or should broadly representative. A carefully APPENDIX
voters choose multiple authorities, to considered resolution by them to A Brief Survey of American
whom differing responsibilities are support such an initiative might have
assigned, and whose performance in
Involvement in Constitution-
considerable impact.
office is subject to mutual checks? Making and Regime-Building
Leading research institutes, by
Which system offers the best promise committing themselves to a long- Abroad
for control over such functions of range, interdisciplinary assault on
governance as the armed forces or The first thing to say about the
these questions, may also be able to recent spate of activity involving
the banking system? How ought elec- make a significant contribution.
toral laws be fashioned, to achieve Americans in constitution-making
various goals of representation in abroad is that it focuses mostly on
differing circumstances? Eastern Europe—not Germany, and
Conclusion not the Soviet republics, but the
These are merely examples of the nations between, nations that were,
kinds of inquiry that constitutional- The present historical moment is until recently, satellites of the Soviet
ists must address. To define them, full of opportunity and full of empire.18 This is so partly, I suspect,
even in this preliminary way, is to danger. Machiavelli wrote, "There is because these nations have been, at
demonstrate the need to engage the nothing more difficult to carry out, least in the early stages of their lib-
attention of social scientists and nor more doubtful of success, nor eration from Soviet control, so un-
jurists, politicians, practicing attor- more dangerous to handle, than to reservedly eager to adopt Western
neys and journalists, philosophers, initiate a new order of things." To (though not necessarily American)
theologians and anthropologists, and this grave insight, so full of challenge practices and to enter the community
to invite participation by people from to political leaders in the new of European and North Atlantic
all over the world. nations, Abraham Lincoln added nations. Another factor is that
How might such an interdisciplin- another for his own compatriots, in Americans jump at the chance to
ary, comparative inquiry be initiated? his remarkable speech to the Young solidify their "victory" in the Cold
Who can assume responsibility for its Men's Lyceum in Springfield, War. It seems a lot easier to build
organization? It needs to attract Illinois, in 1838. Self-government, he political cultures capable of sustain-
scholars from many fields: theorists, pointed out, once established, must ing democratic governance in these
to lead critical consideration of the still be defended from the ravages of relatively familiar climes than to find
ideas that underlie constitutionalism; complacency and ambition. At a a basis in the Koran, or in the
anthropologists and students of time when lynch-mobs were threaten- radical diversity of cultures in Asia
religion, to examine the cultures that ing to tear down the fabric of liberty or Africa, for constitutionalism as we
have supported or opposed constitu- in America, Lincoln urged that our understand it.19
tionalism; legal scholars, to explain surest defense lay in making "rever-
the various forms that constitutional ence for the constitution and laws
guarantees can take; historians, to . . . the political religion of the Joint Ventures
trace the rise (and disintegration) of nation." A quarter-century later, As the nations of Central and
the constitutional ideal in different Lincoln learned that our redemption Eastern Europe in 1989 began to
settings; economists, to analyze the lay in transcending those very laws. build independent governments, legis-

276 PS: Political Science & Politics

 The Comparative Study of Constitutions

lators in the region soon realized that Kristi Walseth). It has provided sup- Consultants
they would have to learn a new craft. port for the Congressional Reference
Responding to this need, staff of The Service at the Library of Congress Closer to home (that is, to consti-
Ford Foundation, joining with col- (LC:CRS) to assist legislatures in tutionalism per se), perhaps the most
leagues from the European Cultural Hungary, Poland, Czechoslovakia significant effort has been the Ameri-
Foundation, convened a planning and Bulgaria (they may add the can Bar Association's Central and
meeting in Vienna in the spring of Baltic nations soon). The program East European Law Initiative
1990, attended by legislators from provides equipment that enables (CEELI) (staff director: Mark Ellis).
Czechoslovakia, Hungary, Poland, modern legislatures to work effective- CEELI has provided American legal
and the Soviet Union, as well as par- ly (copiers, fax machines, computers, expertise and assistance to countries
liamentarians and scholars from telecommunications equipment); in Eastern Eurpe that are modifying
Western Europe and the United sends books and periodicals to stock or restructuring their laws or judicial
States. The meeting defined the need parliamentary libraries; and gives systems. Their work thus far has cen-
for technical assistance, advice, and technical assistance on legislative tered on Poland, Bulgaria, Romania,
support services and formed a steer- organization and procedures. In the and Albania. In consultation with
ing committee, headed by Gerhard maelstrom of advice and support "government and nongovernment
Loewenberg, a political scientist from being directed at Eastern Europe, the officials, legal scholars and practi-
the University of Iowa, and Jean- ability to provide material support tioners" in the region, CEELI dis-
Pierre Worms, member of the French has enabled the Special Task Force patches small groups of lawyers and
National Assembly and the Parlia- to play a special role. 21 The Task judges (three to five persons)22 to
ment of Europe. Force, reinforced by the Association conduct workshops for political and
of Former Members of Congress, has governmental leaders engaged in legal
The initiative at Vienna resulted in
also offered consultation about legis- reforms. Efforts have focused on
a series of workshops and parliamen-
lative organization and procedures, technical assistance: drafting consti-
tary exchanges focused on the prac-
and the LC:CRS has received delega- tutions, creating an independent judi-
tice of legislating in democratic sys-
tions of parliamentarians from East- ciary, and reforming criminal laws.
tems, as well as cross-national
ern Europe eager to see how our
seminars on federalism. (Other CEELI's response to constitution-
Library supports the law-making
American foundations, including the framers in Albania illustrates their
process.
Pew Charitable Trust, Mott, the approach. The People's Assembly of
Rockefeller Brothers Fund, and the The U.S. Agency for International Albania sent CEELI a copy of their
German Marshall Fund, joined in Development (AID) has been another draft-constitution, dated March 1991,
supporting these efforts.) In Septem- major source of assistance to the new along with a copy of their interim
ber 1990, the East-West Parliamen- democracies of Eastern Europe, pro- constitution. On August 25-28, 1991,
tary Practice Project was launched at viding grants to SUNY-Albany Homer Moyer, chair of the CEELI
The Hague. Scholars and legislators ($850,000; Abdo Baaklini, director) Board, travelled to Albania for dis-
from Czechoslovakia, Hungary, to provide training, consultation, and cussions with politicians there, and
Poland, the Soviet Union, Lithuania, public policy analysis to the they agreed that an analysis of the
and Bulgaria, as well as the Nether- Hungarian legislature; and to the constitution would be the first step.
lands, Great Britain, Germany, National Endowment for Democracy The draft was then sent by mail to a
Austria, Spain, and the United (NED) to conduct programs in sup- panel of American experts, twenty-
States, debated principles of democ- port of democratic institution- three of whom (including five federal
racy and legislative practice. Subse- building and civic education in judges, three state court judges, ten
quent workshops in Eastern Europe Poland and Hungary. NED has, in law professors, two congressional
have focused on the committee sys- turn, made grants to both national staffers, and Louis Fisher, of
tem, rules of debate, voting proce- political parties and to the U.S. LC:CRS) responded in writing. Some
dures, information resources, and Chamber of Commerce and the of the responses were quite detailed,
other practical concerns of legisla- AFL/CIO for programs dealing with and some rather blunt. They ranged
tors. The Project continues, though the conversion to a free-market econ- from comments about the dangers of
rapidly changing circumstances in the omy and free trade unions, the elec- entrusting too much power to a legis-
region have required alert toral process, political organization, lative assembly,23 to suggestions
adaptation.20 and the establishment of a free press. about how to phrase human rights
guarantees and fortify the indepen-
The Law and Social Science divi-
dence of the judiciary, to such mat-
U.S. Government Agencies sion of the National Science Founda-
ters as property ownership and the
tion has funded a major investigation
regulation of political parties. A dele-
In April 1990, Speaker Thomas of democratic values in the former
gation travelled to Tirana, Albania,
Foley of the U.S. House of Repre- Soviet republics. Directed by James
on October 7-11, 1991, for an inten-
sentatives named a Special Task Gibson, of the University of
sive workshop on these matters. The
Force on the Development of Parlia- Houston, the project will use survey
visit included a "seminar" on the
mentary Institutions in Eastern techniques to gauge the support for
separation of powers given by Louis
Europe, chaired by Representative democracy and constitutional govern-
Fisher to a packed auditorium of law
Martin Frost (D-TX) (staff director: ment in the former Soviet Union.

June 1992 277

The Profession

school students, many of whom were can and European scholars and legal tions about legislative practices.
apparently familiar with his books on experts, including some from other Other political scientists report that
the subject. countries of Eastern Europe; and it they have been assisting with consti-
CEELI has also provided technical planned to assist libraries in acquir- tution-writing in Yugoslavia, Russia,
assistance on Bulgaria's law concern- ing publications on comparative con- and Latvia.
ing the ownership and use of agri- stitutional law not currently available
cultural lands, commercial law and in Poland. 25 European Efforts
foreign investment codes, on Of potentially broader significance,
Romania's proposed legislation and but thus far focused mainly on This survey does not intend to
on the organization of the judiciary, Europe, is the Research Committee report on efforts by non-Americans
and on Poland's draft constitution. of Legislative Specialists (RCLS), in constitution-framing, but it should
It is mounting a Sister Law School formed at the July 1991 World Con- be noted at least in passing that
program, pairing each law school in gress of the International Political Western Europeans are engaged in a
the region with at least three Ameri- Science Association in Buenos Aires, wide variety of activities in this
can law schools. The program began Argentina. Chaired by Lawrence arena, too. For example, Antonio La
with workshops in Poland and Yugo- Longley of Lawrence University and Pergola and Wolfgang Zeidler, for-
slavia and a visit to the United States Allan Kornberg of Duke University mer presidents of the Italian and
in September 1991 by 20 law school and with a board consisting of polit- West German constitutional courts,
deans from Eastern Europe. It is ical scientists from Argentina, Den- have established a Center for the
expected to include exchanges of fac- mark, the United Kingdom, Italy, Study of Judicial Review.26 Further,
ulty and students, joint research pro- New Zealand, Nigeria, Turkey, and The Hansard Society for Parliamen-
jects, and assistance in library devel- the United States, RCLS intends to tary Government has organized a
opment, curriculum reform, and law publish a newsletter summarizing Democratic Advisory Service, a
school administration. research on comparative legislative group of experts on governance
practices and is planning to co- issues, to be made available, with the
CEELI offers the following com-
sponsor, with the Centre for Re- support of the Foreign and Com-
ment on its approach:
search on Constitutional Right, of monwealth Office's "Know-How
U.S. legal experience and traditions the University of Paris, an inter- Funds," to new democracies. The
offer but one approach that participat- national research workshop on the Society also entertained two delega-
ing countries may wish to consider. A role of legislatures and parliaments in tions of Polish parliamentarians in
variety of models, including those of newly democratic regimes. The work- 1990.
many civil law countries, offer alterna- shop is tentatively planned for Paris
tive legal traditions that are also valua-
ble sources of law. In the emerging in early 1993.
democracies of Central Europe there
is, however, great interest in the U.S. Notes
legal experience, particularly with Clearinghouses
1. This paper draws on my report for The
regard to individual and human rights, Ford Foundation, assessing the recent Project
allocations of governmental power, Two groups are presently serving
on the Comparative Study of Constitutional-
and the free market system. as clearinghouses for consultations ism, administered by the American Council
by Americans in Eastern Europe. of Learned Societies. I am particularly grate-
By drawing on the resources of the The Congressional Reference Service ful to Shepard Forman for his support and
American Bar Association, CEELI at the Library of Congress is publish- encouragement.
ing an occasional newsletter, called 2. The complex relationship between con-
has been able to marshal a high level stitutionalism and democracy is analyzed by
of expertise for service in countries Parliamentary Development. The Walter F. Murphy, "Constitutions, Constitu-
that have requested such assistance. first issue, published on July 31, tionalism, and Democracy," to be published
In a highly focused way, it seems 1991, presented 15 pages of notes on in Douglas Greenberg, Stanley Katz, and
to have made a substantial con- consultative and support projects in Steven Wheatley, eds., Constitutionalism and
Democracy (New York: Oxford University
tribution. 24 Eastern Europe and the Soviet Press, forthcoming in 1992).
In 1990, the Ford Foundation Union. There were separate listings 3. Other nations would of course contest
made a grant to Columbia University for multinational activities and those the view that Americans have any special pro-
to provide technical assistance for the aimed at particular countries. prietorship over constitutionalism, and with
good reason. Framers in the newly indepen-
constitutional drafting committee of Meanwhile, the American Political dent nations of Eastern Europe, for example,
the Polish Parliament. Under the Science Association (APSA) is seem to be looking for inspiration and guid-
direction of Andrzej Rapaczynski, gathering information about activities ance as much to Germany and France, not to
professor of constitutional law at by political scientists in Eastern mention their own histories, as they do to the
Columbia Law School, the project Europe for publication in its quarter- United States.
responded to an urgent request for 4. This whole question of constitutional
ly magazine, PS. The first list will borrowings is only dimly understood. Fred
assistance by Solidarity's Civic Par- report such projects as visits by Riggs has shown how dismal has been the
liamentary Club and members of the Samuel Patterson of Ohio State Uni- experience of Latin American countries that
parliamentary committee charged versity, Gerhard Loewenberg of the have tried to adopt the presidential system on
with drafting a new constitution. The University of Iowa, and John Hib- the North American model. We tend to
believe that a constitution, to succeed, must
grant supported consultations (some bing of the University of Nebraska grow naturally out of the soil of a nation's
by correspondence) between Ameri- to Hungary to engage in consulta- political experience. On the other hand, there

278 PS: Political Science & Politics

 The Comparative Study of Constitutions

is the example of Japan's relatively positive scientific, not consultative." They add that it government agencies, foundations, learned
experience over the past forty-odd years with will "not be involved in advising the coun- societies, university centers, ethnic organiza-
a constitution imposed by a conquering army tries to be studied about legal and constitu- tions, and groups that do programs in a par-
bent on radical reform. tional choices." It is directed by outstanding ticular country. Appendices provide a guide
5. Remarkably the history of American scholars, and it will draw on the excellent to programs by country and by types of assis-
involvement in constitution-making abroad holdings at the University of Chicago (includ- tance (conferences, exchange programs,
has never been told in any adequate way. ing one of the "top ten or twelve" Slavic grants, publications, reference services, and
Carl J. Friedrich provides a sketch, in a collections in the country, according to the technical assistance). Barbara Perry, political
slender volume of lectures entitled The project prospectus). scientist from Sweet Briar College, presented
Impact of American Constitutionalism 12. Great Britain and Israel seem to soldier a paper at the Annual Meeting of the Ameri-
A broad (Boston University Press, 1967), but along without written constitutions, but both can Political Science Association, September
it focuses on the idea and forms of American are deeply committed to the rule of law, and 1991, drawing largely on Howard's data to
constitutionalism, rather than the efforts of both practice constitutionalism to a high analyze the participants involved in constitu-
Americans to carry these ideals abroad. Louis degree. If they are exceptions, they prove the tional efforts abroad. Her main finding is
Henkin and Albert Rosenthal have edited a rule. that these consultants have tended dispropor-
collection of essays on the topic (Constitu- 13. To mention just a few examples of tionately to be males and trained in the law,
tionalism and Rights: The Influence of the current American concern: How can presi- rather than the social sciences.
United States Constitution Abroad [Columbia dents be kept from abusing the "war 19. In focusing on Eastern Europe, I do
University Press, 1990]), some addressed to powers"? Do citizens have economic and not mean to denigrate the valuable contribu-
"ideas and institutions," others treating par- social rights, and if so, how can they be tion that some Americans have made to the
ticular countries (Germany, Japan and Korea, secured? How can citizens hold the govern- establishment of democratic governance in
the Philippines, Poland, sub-Sahara Africa ment of a huge nation to account for its per- the Third World. One example is Namibia.
and South Africa), and one, by Henkin, on formance? How ought responsibilities be Several Americans associated with the
international human rights. There are, of shared among layers of a federal system, and Lawyers Committee for Civil Rights and the
course, other useful books and articles on how can such sharing be maintained? Lutheran World Federation monitored the
American involvement on framing efforts in 14. George Akita, Foundations of Consti- deliberation of the constitutional convention
specific countries (for references, see the bib- tutionalism in Modern Japan (Harvard Uni- in 1989-90. The Lutherans in particular, hav-
liographical essay by Andrzej Rapaczynski, versity Press, 1967). ing developed strong ties with Namibian lead-
published in the Henkin and Rosenthal vol- 15. Sadly, some purveyors of constitution- ers by helping them deal over the years with
ume). But I know of no major comparative drafting skills prey on this mentality. Albert political trials and other forms of oppression,
or analytical work on this subject, treating P. Blaustein, professor of law at Rutgers were able to offer useful counsel about elec-
the phenomenon in general. University who has been a paid consultant on toral systems and to explain how rights work
6. Robert A. Goldwin and Art Kaufman, constitutional drafting in a number of coun- in terms the Namibians could understand.
eds., Constitution Makers on Constitution tries, has written, "By following the United (Source: Ralston Deffenbaugh, Harvard-
Making (AE1, 1988); and Robert A. Gold- States model, all of the constitution writers trained lawyer who now heads the Lutheran
win, Art Kaufman, and William A. Scham- after 1787 could legitimize their revolutions, Immigration and Relief Service [LIRS] in
bra, eds., Forging Unity Out of Diversity their independence, their nationhood" (Phi New York.) Such work, built on carefully
(AEI, 1989). Kappa Phi Journal, Fall 1984, p. 16). If only laid foundations of mutual trust, goes far
7. Louis Henkin and Albert J. Rosenthal, it were that simple. beyond "technical assistance."
eds., Constitutionalism and Rights: The 16. My impression is confirmed by recent 20. Shepard Forman, "Strategy for Private
Influence of the United States Constitution correspondence with Walter Murphy of Philanthropy in Promoting the Development
Abroad (Columbia University Press, 1990). Princeton, Martin Shapiro of UCal-Berkeley, of Democratic Institutions in Eastern
8. See, by Cutler, "To Form a Govern- William Riker of the University of Rochester, Europe," pp. 4-9. Forman's paper was pre-
ment," Foreign Affairs, 1980; and "Party and J. Woodford Howard of Johns Hopkins, pared for presentation at the Annual
Government Under the Constitution," Uni- among other authorities in this field. When I Research Conference of the Association for
versity of Pennsylvania Law Review, Decem- wrote Murphy and Shapiro last year to ask Public Policy Analysis and Management
ber 1985. Both are reprinted in Donald L. where a student I was advising might pursue (APPAM), October 24-27, 1991, in Washing-
Robinson, ed., Reforming American Govern- the comparative study of constitutionalism at ton, D.C.
ment (Westview, 1985). By Sundquist, see the graduate level, both answered that there 21. LC:CRS is not unique in providing
Constitutional Reform and Effective Govern- was no American university presently offering material support. The Center for Democracy,
ment (Brookings, 1986); and "Needed: A graduate-level instruction in that field. with a small grant from the National Endow-
New Political Theory for the New Era of 17. Perhaps "renewal" would be a better ment for Democracy, has assembled and dis-
Coalition Government in the United States," word. Carl J. Friedrich and others in the tributed Libraries of Democracy (packets of
prepared for delivery at the APSA Annual 1930s, '40s and '50s were turning out treatises books, articles, videos and other materials)
Meeting, 1988, and published in Political on constitutionalism (Friedrich's Constitu- for distribution to organizations in Central
Science Quarterly (1989). tional Government and Democracy), criticiz- and Eastern Europe.
9. See also a Symposium, entitled ing the performance of the American system 22. Louis Fisher, of the LC:CRS staff, an
"Divided Government and the Politics of (William Yandell Elliott's The Need for Con- outstanding political scientist, has joined sev-
Constitutional Reform," in PS: Political Sci- stitutional Reform and Thomas K. Finletter's eral of these delegations. People at CEELI
ence & Politics (December 1991), containing Can Representative Government Do the tell me that Fisher's intimate knowledge of
brief articles by Mark Petracca, David May- Job?), and helping new nations to write con- how American political institutions developed
hew, Gary Jacobson, Morris Fiorina, James stitutions. As an academic field, however, the and how they now operate is intensely inter-
Thurber, and others. study of comparative constitutionalism has esting to politicians, lawyers, and law stu-
10. The device is not well exploited where lapsed since then. dents in places like Bulgaria and Romania.
constitutionalism is concerned. It presents an 18. A. E. Dick Howard, professor of law 23. Note that the first constitutions of the
editorial by John Greenwald, entitled at the University of Virginia, has compiled a American states, in reaction against British
"Exploring the Constitution" (originally pub- volume, called Democracy's Dawn: A Direc- "tyranny," placed dominant power in the
lished in Time magazine, July 1987). Highly tory of American Initiatives on Constitution- legislatures. It wasn't until the mid-1780s that
celebratory, it is not a sensitive or well- alism, Democracy, and the Rule of Law in the American doctrine of separation of
informed piece of writing. Central and Eastern Europe (University Press powers began to insist on checking the power
11. The analytical framework cited by the of Virginia, 1991). Concentrating on Bul- of legislative assemblies, as well as the other
project is academic, and somewhat special garia, Czechoslovakia, Hungary, Poland, and branches.
even by the standards of academia. It is Romania (leaving aside Yugoslavia, Albania, 24. For financial support, CEELI credits,
based on models of bargaining developed by the Baltics, and the Soviet republics), it besides the ABA, the National Endowment
T. C. Schelling and others. The investigators devotes nearly 200 pages to a catalogue of for Democracy, United States Information
describe the project as a whole as "social organizations involved in this work, including Agency and the International Academy of

June 1992 279

The Profession

Trial Lawyers. Because its experts work pro Polish Parliament," Rapaczynski suggests
bono, because its paid staff is small and that the effort to draft a constitution in 1990 About the Author
works from a modest suite in the ABA build- may have been premature (see, esp., pp.
ing in Washington, and because hospitality 606-08, 630-31). Donald L. Robinson is Sylvia D'Lugasch
costs in the host countries are minimal, 26. Founded at the law school in Bologna, Bauman Professor of Government and
CEELI has been able to operate inexpen- Italy, it recently moved to Venice. J. Wood- American Studies at Smith College.
sively. ford Howard, Jr., of Johns Hopkins Univer-
25. In an article in The University of sity, tells me that American legal scholars
Chicago Law Review (Spring 1991), entitled have discussed joining this effort, but no law
"Constitutional Politics in Poland: A Report school has been willing to take the lead.
on the Constitutional Committee of the

The Pacific Century: A Television Series

Continued from page 237
We tried to make this an intellectually ambitious series that would also be both emotionally compelling and visually
engaging. American students typically lack visual and social images of Asia that can support a more substantive study of
the several countries in the region. To help provide American viewers with these significant images, our producers
traveled to 12 different countries in the Pacific, filming a cross-section of people from very different walks of life; from
a powerful politician in Japan to a group of poor nurses in the Philippines, from a women's rights activist in South
Korea to a textile magnate in Hong Kong.
It is our hope and expectation that these ten one-hour programs of THE PACIFIC CENTURY will foster more
comprehensive understanding on campuses about the Asia-Pacific region and relations with the United States. We are
particularly interested in seeing that the individual programs are used by faculty to encourage knowledgeable debate in
courses in comparative politics, international relations, public policy, and as a comparative base study for American
politics.

THE PACIFIC CENTURY video series will air on PBS during prime time in fall 1992. The ten programs
include:
"The Two Coasts of China: Asia and the Challenge of the West"—treats the collision of East and West in
the early 19th century;
"Meiji: Asia's Response to the West"—Japan is the first of the underdeveloped nations to modernize and
gain power;
"From the Barrel of a Gun"—the lives of Vietnam's Ho Chi Minh and Indonesia's Sukarno reflect the
nationalist movement in those former colonies;
"Writers and Revolutionaries"—Chinese writer Lu Xun and Japanese philosopher Kita Ikki are profiled as
intellectuals who play a significant role in promoting social change in their homelands;
"Reinventing Japan"-—examines the transformation during the American occupation after WWII;
"Inside Japan, Inc."—considers the political, historical and cultural roots of Japan's post-war economic
miracle;
"Big Business and the Ghost of Confucius"—looks at Asia's newly industrialized countries—Taiwan, South
Korea and Singapore;
"The Fight for Democracy"—explores expectations among Asian people for greater political freedom as
exemplified by the Republic of Korea;
"Sentimental Imperialists: America in Asia"—looks at American involvement with China and the
Philippines; and
"The Pacific Century: The Future of the Pacific Basin"—explores common problems, including pollution,
overpopulation, trade friction and immigration shared by the entire region.
If you would like to see a preview videocassette, you may call 1-800-LEARNER. This same contact number
handles orders for the complete series ($275 on VHS, or $29.95 for a single program).
The print resources that accompany the video series include a new text, Pacific Century: The Emergence of
Modem Pacific Asia, by Mark Borthwick, et al.; a study guide, The Pacific Century Study Guide, by Mark
Borthwick and Gill Latz; and The Pacific Century Faculty Guide, by Mark Borthwick and Gil Latz. All of these
books are available by calling Westview Press at (303) 444-3541. A companion tradebook, The Pacific Century,
by Frank Gibney, offers a personal overview of the history and themes of the Pacific basin region, and will be
available from Scribner's in early fall.

280 PS: Political Science & Politics