Sakharov’s Constitution

373 Ab Imperio, 4/2004 Вспоминая конституционный проект А. Д. Сахарова 15 лет спустя Remembering A. D. Sakharov’s Constitutional Project 15 Years Later 1989 will be remembered as an extraordinary year – a year in which millions took to the streets to demand freedom, a year in which revolutionary governments started dismantling the apparatus of totalitarian socialism. The struggle is far from over, but its beginnings have been marvelous to behold. Andrei D. Sakharov helped to foster these beginnings. For years, he tirelessly championed the rights and liberties of people all over the world, but especially in the Soviet Union. He paid a terrible price for his efforts. Suffering exile, he also shouldered the burden of bringing the even greater suffering of others to world attention. Fortunately he lived long enough Lowry WYMAN SAKHAROV’S CONSTITUTION* * ThisessaywaswrittenshortlyafterAcademicianSakharov’sdeathandreflectsoneAmerican lawyer’s scholarly perception of the Sakharov’s constitutional draft in the late Soviet period. As such, it is a valuable historical document in itself, serving as a natural link between the two epochs,thepastandthepresent.Forfurtherdiscussiononthisandrelatedsubjects,seethesiteof theJurlandiaInstitute:www.jurlandia.org/sak-concom.htm.Last visited on February 19, 2005. 374 Вспоминая конституционный проект А. Д. Сахарова... to witness the early fruits of his painful labors, and was able to participate in the earliest stages of his country’s, and Eastern Europe’s, social and political reforms. Sakharov died on December 14, 1989, worn out. Among his last labors, he prepared a draft constitution for a new Soviet Union. It was a “discussion draft” frequently revised, even in his final days – that attempted to articulate the great themes and necessary details of a new compact among 300 million people of a hundred nationalities, with scores of languages and numerous alphabets, all sharing a common heritage of bondage to a lawless, totalitarian theocracy. Sakharov’s draft differs fundamentally from the tone, organization, and preoccupations of the U.S. Constitution. It is both broader and narrower than our Constitution, addressing lofty global concerns as well as highly particularized elements that we would consider more “legislative” than “constitutional” (although some of our own states’ constitutions also cover numerous “legislative” details). It should be read in light of the political and historical circumstances that faced Sakharov, the realities of current Soviet experience, as well as in light of its tentative, heuristic character. Although I believe that key features of U.S. constitutional theory, practice, and “style” suggest vital improvements – a theme I shall return to – this draft is a powerful point of departure, a poignant gift from a good and great man. Its first paragraphs, particularly, project a vision of global political goals and arrangements that is bold, refreshing, and as revolutionary in its time as the U.S. Constitution was two centuries ago. Sakharov’sdraftwasentirelyhisown.Althoughappointedtoacommitteethat President Gorbachev commissioned to write a new Constitution, Sakharov declined to participate on a joint draft, believing that the committee as a whole would fail to address many important issues.According to one of Sakharov’s close friends, Gorbachev was quite worried by this and dispatched an emissary to determine whether Sakharov was accepting or declining committee membership. Sakharov answered that he was not declining, he merely wished to write a draft of his own. As of early February 1990, the Committee had still not met. Sakharov’s Constitution is the only draft in existence. As suggested, this draft was intended to stimulate debate on the key issues Sakharov believed had to be resolved in order to set up a workable government. In preparing it, however, Sakharov also suggested specific ingredients of a balance among lofty principles, pragmatic governance, and Soviet experience. This was no simple task, as each day’s news confirms. 375 Ab Imperio, 4/2004 There are many who doubt that a workable compromise – whether along lines suggested by Sakharov, or any others – can ever be achieved. Sakharov was not among them. He focused upon identifying and addressing the questions that such a compromise would have to resolve. His proposed constitution, albeit tentative, deserves respectful consideration. Sakharov’s draft would create a new, voluntary Union – the Union of Soviet Republics of Europe and Asia. Contemplating that its constituent republics might wish to join on different terms, the draft permits special protocols to be appended to the Union treaty signed by...