Nothing New Under the Sun

Constitutional copying has been around from the very beginning. Thomas Jefferson and James Madison each drew from the Virginia Declaration of the Rights of Man, drafted by the far less famous figure of George Mason, in producing their own lists.

In this concluding section, I take up two questions. First, does all this advice­giving make a difference? Here it is difficult to make a rigorous assessment, but it is clear that advisors’ suggestions collectively sometimes work. My Mongolian friend Mr. Chimid explained to me exactly how Professor Shapiro’s report helped the Mongolian drafters avoid particular mistakes, but of course the resulting document also has other features that have been criticized and amended over the years. I have examples of observations that I have made on constitutional texts that were then taken into account in future drafts, but I do not always know who else might have provided similar advice. I am also unsure of which advisors have insisted on poor institutional choices. So, at a micro level, the answer is probably that advice matters but we do not have any rigorous evidence that more advice produces more democratic, or more enduring constitutions. Sixteen external advice organizations did not produce a stable constitution for Libya; the openness of the Tunisian process did not prevent the current president from suspending large portions of the Constitution, while the autochthonous Egyptian constitution of the same year survives.

One way to think about advice givers is that they subsidize knowledge gathering in ways that can empower local decision-makers.^[54] But there are many perils to this process. One is imposing one’s own view without regard to local conditions; another is pushing for boilerplate that may not fit; and yet another is becoming too involved in local politics to notice that one is interfering with sovereign decisions. There are also scattered examples of unethical advisors, like Galbraith. Perhaps a code of ethics for advisors would be in order, though its content would not differ much from other ethical rules operating in the legal field. The main challenge would be to identify precisely who is the client—is it the hiring organization, the government, or the rather more vague “people”? In the latter case, who speaks for the people?

At the end of the day, there are myriad voices and uncertainties associated with any drafting situation. Advisors have an important role to play. But for the most part, perhaps the best advice to advice givers is simple: listen.