Boilerplate? The Third Amendment in Micronesia

When there is a dearth of expertise, the advisor should be especially careful not to suggest language that will make little sense once it has to be interpreted later by locals. One peril comes from boilerplate, which can produce advice that is idiosyncratic or odd.

The Third Amendment reads that “No soldier shall, in time of peace be quar­tered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” The law was passed to address the British practice of quartering troops with the colonists, a source of great grievance for the Amer­ican revolutionaries. While it reflected a genuine concern at the time, it has hardly mattered in the many years since. In the 230+ years since its adoption in 1791, it has been litigated exactly once, when state corrections officers were evicted from their residences in correctional facilities during a strike and replaced with National Guardsmen.^[49] (The officers claimed that their Third Amendment rights were violated by the presence of the National Guard, but the courts rejected this argument.)

The Third Amendment has not been very popular abroad either. Whereas many of the other rights in the U.S. Constitution have been adopted around the world, the quartering provision enshrined in the Third Amendment has appeared in exactly one other Constitution, that of the former American territory of the Marshall Islands. The islanders, who inhabit a group of atolls best known as a nuclear testing ground where the world’s first hydrogen bomb was set off in 1952, drafted a constitution in preparation for independence, which came in 1986.

How did this happen? Why would a group of Pacific Islanders adopt a provision to protect their homes from a military that did not exist? The Marshall Islanders began to draft their own constitution after they decided not to join the Republic of Micronesia, despite American urging to the contrary. The island leaders felt that a US-style separation of powers document would lead to conflict in a small country, and so preferred a parliamentary system. A New Zealand lawyer, Alison Quentin- Baxter, was hired as the principal constitutional drafter, and produced a document whose vocabulary reflects an Anglo-American drafting style. When it came to the Bill of Rights, a significant role was played by Professor Lawrence Tribe of Harvard Law School, who was called in to work on the final draft.^[50] We do not know for sure whose idea was to copy a provision from the 18th century about quartering soldiers, on an island without its own military.

Meanwhile, in the Republic of Micronesia, leaders from several islands had gath­ered together to draft a new Constitution for the newly independent country. They were given a draft along with a report, prepared by a team under the direction of a political scientist from the University of Hawaii, Norman Meller. The staff naturally drew on their own experience, and sought to provide the Micronesians with suffi­cient background to understand the provisions they were proposing.

In subjecting a statute to the requirements of substantive due process, the court asks: (1) Does the government have power to regulate the subject matter? If the statute is not within the power of the government, the statute will be struck down. For example, inasmuch as public monies cannot be expended for other than public purposes, a fortiori, an exercise of the taxing power for merely private purposes is beyond the authority of the legislature. Loan Association v. Topeka, 20 Wall. 255 (1875); Carmichael v. Southern Coal and Coke co., 300 U.S. 644 (1937). (2) If the government has the power to regulate, the court next asks if what the statute proposes to do bears a rational relationship to the implementation of the legislative goal. Another way of asking the same question is, “Can any reasonable legislature choose this particular statute to achieve its goal?” In subjecting a statute to this second test, it must be pointed out that the statute is presumed to be valid. The challengers of the statute must bear the burden of proving that the statute is devoid of any rational basis.

The inclusion of Latin phrases and references to US caselaw seems—if I can use the term—a fortiori unwise. Whether a traditional Micronesian chief—or any non­lawyer for that matter—could easily grasp the legalese seems unlikely. Cool as Latin phrases may sound in polite company, they signal legalistic technicality, rather than language for ordinary citizens. As one of the delegates noted in requesting a delay, There are times that we may think and feel that we have understood important issues - and all of a sudden we find ourselves wondering why we voted yes or no on a particular issue.

Ultimately, the Bill of Rights that was adopted remained very similar to that of the United States. And it was interpreted by a Supreme Court that included expatriate American lawyers, who freely drew on American understandings in interpreting the local Constitution, largely because “the framers” had so expected. Evidence for this included the background report itself—prepared by American lawyers!

While the dominant role of American lawyers in the sovereign affairs of a former colony is hardly surprising, there is a more general point illustrated by the Microne­sian and Marshall Islands stories. When drafting legal documents of all kinds, there is a tendency to look for forms. Law firms drafting contracts for one transaction start with templates from other contracts, then tailor it to their specific needs. In many cases, it can be easier to adopt language from other texts than to try to reinvent the proverbial wheel. And drafters may prefer to go with institutions that have already been tested in other locations. This approach has the virtue of not reinventing the wheel, and need not be viewed pejoratively. If one believes that constitutional provi­sions have been adopted by other countries based on an independent assessment of their benefits, borrowing can represent a form of social learning, by which states learn from others’ experience. Further, some provisions of a constitution may be directed externally, such as rights provisions that are designed to act as signals to international audiences.

On the other hand, using boilerplate can lead to provisions that lack local meaning. Perhaps it is not surprising that the paradigmatic phrase “we the people” appears in thirty-eight national constitutions in history; but it may be somewhat surprising to learn that the idiosyncratic phrase “cruel and unusual” punishment appears in ten constitutions, and “due process” appears in sixty-seven, ranging from Afghanistan to Yugoslavia.^[53] This latter phrase has a specific historical meaning in common law countries, and yet has been adopted widely in countries with a different legal tradition. If there is less local understanding of what the provisions entail, there is less likelihood of effective enforcement in practice.

Boilerplate provisions have the advantage of saving on the time and expense of negotiation. Furthermore, in the constitutional context, the usual objections to “boilerplate” in contracts between buyers and sellers—namely that they involve a power imbalance in favor of drafters—are less relevant. On the other hand, in the constitutional context, there are few of the mechanisms of market discipline that some believe restrain the use of “inefficient” boilerplates in the contractual setting. We cannot be confident that the phrases that are being borrowed are always the best provisions.

From the point of view of the drafter, adopting boilerplate text or institutions may seem to minimize risk. Professor Karol Soltan of the University of Maryland, for example, told a story that he was advising the Kurds in the constitutional negotiations in Iraq. He suggested a modified version of the Belgian constitutional court as a possible institution. The drafters responded by asking him what country used the particular proposed model, and Soltan had had to reply that none did. And that was the end of the discussion.

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