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1. Of Constitutions and Constitutionalisms
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3 1 Of Constitutions and Constitutionalisms On a chilly day in late November 1989, Zdeněk Janíček, dressed in grimy overalls, rose to address a rally of his fellow Prague brewery workers. Janíček and his listeners were among the several million in Czechoslovakia who had walked off their jobs in a two-hour general strike that had brought the country to a standstill. They were demanding not higher wages and improved working conditions but more democracy and an end to the Communist Party’s monopoly on political power. In his speech, Janíček quoted from America’s Declaration of Independence. There in Prague, thousands of miles away and more than two centuries after Thomas Jefferson asserted the unalienable rights of all men to life, liberty, and the pursuit of happiness, his words were once again called into service—as they had been by so many speakers in so many lands over so many years—to inspire, to instruct, and ultimately to empower. “Americans,” Janíček observed, “understood these rights more than 200 years ago. We are only learning to believe that we are entitled to the same rights.”1 What could more powerfully attest to the continuing appeal, relevance, and influence of one of the greatest documents of American and, for that matter, global history? What made the Declaration such a worldwide document was its inspiring statement of political principles and its status as a founding text. It proclaimed to the world the appearance of a new independent state taking its place “among the powers of the earth.” Had American independence not been achieved, or the federal union not survived , the Declaration would not have had such global impact. David Armitage, Harvard historian, voiced his conviction in his masterful study of the Declaration that the first paragraph emphasizing the “rights of states” under international law was of greater historical significance than the natural “rights of individuals” stressed in the second 4 Of Constitutions and Constitutionalisms paragraph (“all men are created equal”). The Declaration thus provided a model, he pointed out, for other proclamations of independence by new states. Today more than half the countries in the world have followed America’s lead by making such declarations of independence, thereby changing the course of global history from a world of empires in 1776 to the modern world of nation-states.2 Yet as important as it was and remains, the Declaration was only the first of six documents produced by America’s founders in a fifteen-year burst of brilliance, never since equaled, that addressed the most relevant questions of governance of a free people: how to balance liberty and order and how to balance individual rights and freedoms with individual responsibilities . From these half dozen texts—the Declaration, the first state constitutions, the Articles of Confederation, the U.S. Constitution, The Federalist, and the American Bill of Rights—emerged a host of innovative ideas and practices. They included the new vogue of a written constitution ; the principle that constitutions should be drawn up by constituent constitutional conventions; the practice of ratifying charters by the people or their representatives; the process of amending constitutions; and three important institutions incorporated in the U.S. Constitution: presidentialism , federalism, and judicial review. The six documents comprised the core of American constitutionalism, which gave birth to the new nation and, when combined with British and French constitutionalisms, gave rise to a new constitutional constellation, Western constitutionalism, to be discussed later. Any study of constitutional influence must acknowledge at the outset that all constitutions are autochthonous; that is, they spring from native soil and are rooted in a country’s indigenous traditions. Influences from other societies and cultures are only grafts on the main root. Constitutions are, to a greater or lesser degree, hybrid documents , since each new constitution is part of a larger process called syncretism, by which the traditions of one country incorporate the indigenous traditions of another country, resulting in a new creation to which both countries have contributed. When American constitutionalism moved abroad, it was transformed by this interactive, adaptive process. But as will be shown, indigenous traditions sometimes also resisted syncretism. At the same time, it is clear that in no society do constitution makers operate in a historical, experiential, and intellectual vacuum, approaching such knotty problems as governance and individual rights de novo. [18.222.69.152] Project MUSE (2024-04-17 01:23 GMT) Of Constitutions and Constitutionalisms 5 Inevitably there are borrowings and rejections, conscious and...