Vital Interests: Tom, thanks for participating in the Vital Interest forum. You have spent your academic career thinking about constitutions - how they are created, how they are implemented, and how they endure. Recently you have been involved in two timely books  - How to Save a Constitutional Democracy and Constitutions in Times of Financial Crisis. 

Let’s look back a bit and talk about the “golden age” of constitutionalism with the ending of the Cold War, the disintegration of the Soviet Union, but also the end of colonialism. 

Tom Ginsburg: Constitutions have become a very central part of the script of what it takes to be a nation-state. It is literally one of the first things an emerging country does to announce that it is a new state.  As Americans, we are accustomed to thinking that a constitution is some kind of deep social contract - people coming together and articulating their fundamental values that will define the government they envision. For the most part, constitutions written today are not aspirations of the people but rather are elite products that many times are written as a grand gesture but without much intention of observing their rights provisions or promoting constitutionalism. 

Take for example one of the youngest countries in the world, South Sudan, which emerged in 2011. The very first day of independence, it adopted a constitution containing language articulating all kinds of nice rights and government structures. Nevertheless, South Sudan immediately went into civil war, disregarding any constitutional restraints. Why did they feel the need to make paper promises that were ignored immediately? Despite all the bitter internal disputes, South Sudanese elites understood that, to signal to the international community that they're a real country, a constitution was needed. The constitution provides clear guidance for outsiders as to who has the authority to deal with issues like oil and budgets and aid and things like that. Constitutions serve purposes besides limiting government, which we sometimes refer to as constitutions without constitutionalism.

In the Western world, you mentioned the end of the Cold War, which was the great moment where we thought that there'd be a sort of triumph of liberal democracy around the world. It sure looked that way for 15 years or so. The number of democracies continued to expand. Liberalism continued to expand. Now what we're observing is what some scholars call adaptive authoritarianism, where authoritarians are able to use the formal institutions that look democratic in ways that are really profoundly undemocratic. They use those things to consolidate power, and of course, we see that reflected in constitutions as well.

VI: Is the drafting of constitutions in new nations like South Sudan, and then countries that were formed after the breakup of the Soviet Union, the result of internal dialogue and decisions or did outside “advisors” from the United States and Europe come in and say “ We have the best constitutional models, we know how to draft them,” and create the type of institutions needed for democratic governance?

Tom Ginsburg: There certainly were a lot of people going around sharing ideas. I think that they sometimes overstated their own influence on these processes. What was really going on was a deeper process of trying to mimic institutions that were developed in the West because they're seen as sort of one-size-fits-all kit for liberal democracy for everybody. You adopt institutions modelled on countries that are successful, on those institutions that look attractive.

Now, I don't actually think it was so much an imposition in the traditional sense. It's just maybe a hegemony of ideas. It's also somewhat natural if you think about it. If you're the leader of a new country and all of a sudden you're independent, you're not going to try to go back and write the Federalist Papers from scratch. You're not going to try and rethink all of political theory. Of course, you're going to pick up on what's been tried, try to see what works, try to improve on them. All that said, I think that there's certainly an idea out there now that there was a little too much of that mimicry and not enough internalization of those values. That, obviously, leads one to think that maybe it could have somehow been done differently, more organically developed, to suit the different kinds of societal needs and desires.

VI: For constitutions to be effectively implemented and have any chance of enduring, new nations need to create institutions that can filter rights down to the population and establish trust and legitimacy to the government. Is this a major challenge for emerging constitutional nations?

Tom Ginsburg: Yes. Obviously, you're referring to sort of faux constitutional documents that only exist on paper, that is a major problem. You can't have democracy with that kind of system even if you have a formal constitutional structure. How do you get leaders to actually honor the text? How do constitutional ideals become realized in practice? There is a good paradigm, drawn from South Africa, that is worth examining. 

At the end of aparteid in South Africa, the constitution-making process was very open. It was seen as being an opportunity for all people, all segments of society, to be involved in defining the future. There was a consertive effort to be inclusive, to formulate a new society. It was also, at the same time, a process open to the international community.

The South African constitution includes provisions, for example, that the Bill of Rights be interpreted in line with international human rights norms and that the courts can look to other countries for precedent and guidance - so it’s a very open document. In this instance, constitution-making was also a multi-stage process. There was an initial framework constitution and then a second one to revise and add provisions. I think this is pretty much the ideal structure.  A lot of countries have copied that kind of process. The ideas of participation and breaking up a process into a number of discrete steps has been quite influential. 

At the end of the day, when you look at South Africa, you can validly ask how well has it worked? I think it's a very tough question. I myself view the glass as being half full. I think there are examples of institutions constraining power holders effectively, for example exposing the corruption of President Jacob Zuma, who was removed from office a couple of years ago. That was a result of the liberal and democratic institutions,  not a product of the African National Congress which Zuma led and was very corrupt. So there are success stories.

Yet, at the same time, the overall system has not delivered on economic equality in South Africa and there is still a lot of violence in the society. My view is we have to be realistic about exactly what constitutions can--and cannot-- do. The grand language that the constitution is going to lead us to a new society, which is necessary to get people motivated to actually internalize the thing, is always over-ambitious. There's a little bit of a paradox there. You're trying to set up the aspirations of a community and to lead people to implement it, but pieces of paper don't implement themselves. You need people motivated to do it.

VI: What is the role of civil society in countries where you're trying to establish constitutional norms? Is it better to have bottom-up participation in advocating for constitutional rights and protections rather than the top-down imposition of government policies?

Tom Ginsburg: If you think about the big question of what makes a constitution actually work in practice - especially when you're talking about things that involve social and economic transformation, creating structures that provide healthcare, education or women’s rights - this just cannot be done in a top-down way. It requires civil society. There are instances in which the constitution-making process sparks this kind of activity. An example would be Brazil, as they were coming out of dictatorship in 1988 and adopting a new constitution. It was a very open process, lots of people were giving their suggestions for what should be in the new constitution.

There was a movement that formed around that time of healthcare workers who wanted the right to health incorporated in the constitution. They lobbied and they got it in there, and then they stayed mobilized. They continue to work towards implementing the right to health in Brazil. I think it's been one of the success stories in that couple of decades since then, and so that's a good example of how civil society is essential to actually make promises work. The constitution-making process can actually facilitate that.

VI:  There have been recent situations, in Afghanistan and Iraq, where the United States and Western powers came in and set up new governments with constitutions that promised much but in reality delivered little in terms of security or basic rule of law, like free and fair elections. Are these examples of imposed constitutions that are destined not to succeed?

Tom Ginsburg: I'm not so sure about that. I think one has to be realistic about what is possible. I have argued in print that, examining the constitution of Afghanistan at the age of 10, the glass, one could say, was half full. First of all, on the development side, the country, even with ongoing war, was infinitely better off than it was 10 years prior. There's 8 or 10 million girls who have been educated, there is healthcare. There’s been considerable on-the-ground improvements.

Just in terms of governance, what did the constitution do? Well, what is it supposed to do? It is supposed to have provided a framework in which “public goods” can be created, in which corruption by the public officials is limited, in which they are creating a legitimate government.  Corruption is a major problem so you might say the constitution was a failure. But not in terms of legitimacy.

On some measures, I think the Afghan parliament, for example, has a higher approval rating than the U.S. Congress. The Afghans seem to, notwithstanding all the fighting that goes on at the top, think that their government is doing its best under the circumstances. Now, as I just said there's a huge corruption problem, obviously, but what would have happened if they didn’t have the constitution? I don't know, I think  it is not as bad as some might say. It was never going to be Switzerland, but it's stumbling along.

I would say with Iraq, you could tell the same story. Obviously, it was a disaster to invade Iraq, but now they've had a turnover in power, the government system works and institutions such as Parliament are evolving. The country stayed together when the Kurds tried to secede, which I think was due, in part, to the constitutional provisions which referred to the territorial integrity of the country. The Iraqi constitution seems to be something that is being implemented, at least at the level of high politics, if not necessarily on the issues of corruption and human rights.

VI: But during the recent unrest in Iraq, wasn’t much of the protest aimed at the government because constitutional provisions have allowed for too much power sharing among competing factions, impairing effective leadership and encouraging rather than suppressing corruption?

Tom Ginsburg: Well, this is a great tension of constitutionalism, and it is true in our society as well. Americans would make the same complaint. All these people in Washington, they're just standing around blocking each other and they’re not actually doing anything. But, be careful what you wish for because then you can turn to countries like Hungary, where they have a strong leader and the formal checks and balances don't matter at all. We don't seem to like that either. Yes, this is a central problem of liberal constitutionalism, its inability to deliver effective governance in our era. That's why you see a lot of disaffection with it.

Yes, it can deliver constrained governance, it can prevent very bad outcomes, but in terms of failing to deliver policies that people want, I think the United States is exhibit A. There are many examples where polls say most Americans want something and yet our political system is not responding. That's got to do with the electoral system, it's got to do, to some degree, with the checks and balances, but that's just the nature of the beast with liberal constitutionalism. That's a deep fundamental problem that we're seeing all over the world.

VI: Recently there's been unrest in Latin American countries and other places around the world. Often, one of the demands from protesters and dissident groups is constitutional reforms. It seems people still have faith that this is the way to  get increased rights, or increased participation, to somehow rein in authoritarian leaders. Would you agree and are these calls for constitutional reform being implemented?

Tom Ginsburg: That's a great question. Because, if you think you need a fundamental change in governance, what are you going to do? You change the constitution. Yes, to some degree when you have situations where, for example, the political economy is hardwired into the constitution,  then constitutional reform can be an effective strategy. I think what's going on in Chile right now is a pretty good example, they are still operating under this constitution which was produced by Pinochet in 1980. It's been changed a lot, so that they’ve reformed the governance structure, but on the economic side, there's a lot of things which are hardwired in the constitution which people don’t like. Private pension systems, private ownership of the natural resources.

Given the inequalities of Chile that exploded last year with demonstrations in November, the question is,  will constitutional reform be able to deliver? Now they’re engaged in responding to those inequalities with constitutional reform and we're going to see. Generally, I've always warned that you’ve got to be conscious of what constitutions can and cannot do. They set the framework for government, but they're not delivering the budget or setting the level of redistribution, that has to be done through politics.

Nevertheless, I'm pretty optimistic about Chile too. I think that they are going to try to, at least at the symbolic level, have a less neoliberal model that I think is going to be more legitimate. Then that will provide a new basis for the society to move forward. The reason I'm somewhat optimistic about Chile is because their basic cleavage is just one dimension,  just socio-economic. It’s just inequality. They don't have issues of race, they don't have issues of religion, they don't have these various other things that the United States and many other countries have which make it really hard to solve these problems.

VI: What are the mechanics of making those reforms? Some countries that want to reform their constitutions call constitutional conventions. Venezuela, for example, called a number of them  after the coming to power of the Chavez, now Maduro, regime. Are these always safe methods or do they sometimes go awry?

Tom Ginsburg: It's Interesting to mention that because that's exactly what was debated in Chile last fall. Once it was decided that some sort of constitutional reform was needed, then the question was, "How do we go about doing it?" Of course, they do have a sitting parliament, they have a method of amending the constitution, but the sitting parties were really not trusted. Yet, on the other hand, they feared exactly what you mentioned: the Venezuelan solution or the constituent assembly that occurred in Ecuador, which resulted in violence. They really thought hard about how to do it.

They decided that this should be put to a vote in Chile. If this goes forward, there will be a vote in the Fall among Chileans about whether or not to go for constitutional reform, and if so, how the constituent assembly should be formed, and whether it should include sitting politicians or not. It would be what we call a “constituted” power and not “constituent” power. That is, the constituent assembly would have very limited ability to change with one task.

Now, that's interesting from a theoretical point of view, but probably a good response to the abuse of constituent assemblies which you referred to. I guess, really, it gets back to this inability of liberal constitutionalism to deliver the goods people want. That creates an opening for populists. That's what Hugo Chavez was, that's Orban in Hungary. To some extent, this described Morales in Bolivia, but more so Rafael Correa in Ecuador.

What's happened with those guys is, of course, they love constituent assemblies because whenever you have a constituent assembly, you're basically saying, "Oh, it’s the people who are deciding", and of course, it's the people who pick the people who get to decide and then have all power, and so the abuse of constituent assemblies is something we've seen really associated with the left-wing populism my view. In Venezuela, they suspended the ordinary government and they’re allowing this hand-picked constituent assembly to run the country nominally. It's a real risk, but there are solutions. I think, again, the big issue is how you channel people's desire for change into effective governance. It is a huge challenge.

VI: In How to Save a Constitutional Democracy, you and your co-author Aziz Huq talk about the key elements of a constitutional democracy - free and fair elections, rule of law, guarantees of rights of speech and freedom of thought that can be undermined in insidious ways.  As those democratic foundations start to erode, how can a society become aware of these realities and guard against these threats?

Tom Ginsburg: One thing that we like, as a matter of constitutional design, is the ability to make reforms to deter or roll back policies that diminish democracy. The book is critical of American exceptionalism - the notion people have that the United States is somehow immune to the pressures on democratic principles that other countries face. We wholeheartedly disagree with that proposition. We maintain that constitutional reforms, both in the United States and elsewhere, might help to ameliorate some of these problems.

One principle that we think is worth considering is to give the opposition a more formal role. Some constitutions say the opposition can control certain committees, and can have some oversight role. You can think about our former rule -  the filibuster - allowing the opposition to block Supreme Court appointments, for example. Well, that would also be a minority power. We think those, generally, can be good because they can make the majority treat the minority as an essential part of government, with a role. Not just an obstacle that must be continually blocked on every front. 

We generally like technocratic solutions. That is where you have a fourth branch of government institutions whose only job is to ensure accountability. We think accountability in the United States is really underdeveloped. In the U.S. there is a system of inspectors general, which have done quite a good job, particularly in situations that have arisen in this current administration. However, inspectors general are not really, statutorily, very well protected.  We could imagine a cadre of those people who were able to examine governance in various institutions and just make sure that corruption is under control and things like this. Those are institutions that we like a lot.

We don't like our current system of selecting Supreme Court justices for life. We think that's very corrupting - certainly a reasonable length term can be established. We don't like the mechanics of our electoral system. Many people are endorsing, and some states are adopting, a system called ranked-choice voting. In this system, instead of voting for just one of two or five candidates, you get to rank them. The nice thing about that is it means that the least-liked candidate is unlikely to ever win. Whereas in our system, in a plurality system, you get someone who most people hate, but a small, significant minority likes, then that person can potentially take over the whole government.

There are a number of technical fixes we think could improve our democracy. We just would like to have that reform conversation. For example I've been thinking a lot about state constitutions. When you think of the last electoral cycle, we had two secretaries of state running for office in elections where they were responsible for counting the votes. Even Stalin wouldn't try to pull off that kind of blatant conflict of interest. It's just so far from even the image of democracy.

I'd like to see some state-level constitutional reform to fix things like that. We have a long history in the United States of states being leaders in pro-democratic, pro-participation, constitutional reform, and I think now is the time for a lot more of that.

VI: Since the methodology for constitutional reform is so arduous in the United States, you are suggesting initiating reforms through the states and perhaps administrative rulings?

Tom Ginsburg: Yes, exactly. That's part of the problem. There's a lot of ideas that could be developed by statute. Reinforcing the bureaucratic autonomy of inspectors general is one. Here are some other basic ones: having political leaders disclose their wealth before and after entering office, prohibiting stock trades, and of course requiring the disclosure of tax returns. It is amazing that this is not already law. The thing about giving the opposition certain rights in the legislative process, that can be done by congressional rule is that it doesn't require a statute. With proper incentive and initiative there's lots of reforms that could be done.

VI: Turning to your other book Constitutions in Times of Financial Crisis we are having this conversation as the COVID- 19 pandemic is ravishing societies around the world and bringing the global economy to a halt.  What kind of pressures do these circumstances put on constitutions? 

Tom Ginsburg: The problem is, if we knew the kinds of crises that would arise, we'd be able to spell out rules in advance. The fact is, we often don't.  Nobody foresaw that the whole world economy would be shut down a month ago. A necessary feature of governance is having to deal with completely unanticipated situations, when the powers that might be needed are not clear.

Then the question is, how do we limit that? Of course, we have answers going back to the Romans, who invented the idea that you'd have a special emergency period in which the government would have unlimited power. That was the idea of the dictator. The dictator would have all power, but just for a limited period, one year. Hopefully the problem that prompted the emergency would be solved and then you'd go back to normal governing. 

We are at a very interesting moment, very different from 2008, where, by most accounts, government bailouts and policies did violate the law. Most people think that that was necessary and good, given the economic realities. I'm not sure that we're in that kind of situation yet. 

I tend to think that our normal institutional structures in the United States are going to be fine. Now, there are many other countries where you see people taking advantage of this emergency. For example Victor Orban in Hungary recently announced he would rule by decree to deal with the coronavirus emergency. That's obviously a huge power grab. I think my view is that those are the bigger concerns right now, that liberalism might be undermined in some countries where it's marginal. I'm not so sure that our current situation is able to be dealt with through ordinary law everywhere.

VI: We are getting to the end of our time. You have provided good insight on the evolution and state of liberal constitutionalism. Even in this time of great societal and economic uncertainty, you remain hopeful that constitutionalism will survive and continue to be the go-to form of government for people around the world who desire to live in free and more equitable societies.

Tom Ginsburg: I do. We're in this moment where there's a rising wave of authoritarianism around the world, but we also see tremendous pushback in all kinds of ways. Where people are saying, "No, we don't actually want this authoritarian governance, we want more participation." I just think that is a cat that's been let out of the bag and one can never put it back.

I think there's going to continue to be demands on liberal democratic ideals. I also think that our political economy is going to change a lot as a result of this pandemic. We're probably going to have more, not less government involvement in the economy. That, of course, requires the values of constitutionalism to ensure that the government isn't captured or doesn't overrun expanded emergency powers. Liberal democratic principles, articulated in constitutions, are ideas we are stuck with - we have to continue to tweak them and work on them and support those aspirations. 

Tom Ginsburg is the Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar, Professor of Political Science at the University of Chicago. Professor Ginsburg focuses on comparative and international law from an interdisciplinary perspective. He holds BA, JD, and PhD degrees from the University of California at Berkeley. His latest book, How to Save a Constitutional Democracy, was written with Aziz Z. Huq, and his earlier books include Judicial Review in New Democracies (2003), which won the C. Herman Pritchett Award from the American Political Science Association; The Endurance of National Constitutions (2009), which also won a best book prize from APSA; and Judicial Reputation (2015). He currently co-directs the Comparative Constitutions Project, an effort funded by the National Science Foundation to gather and analyze the constitutions of all independent nation-states since 1789. Professor Ginsburg has consulted with numerous international development agencies and governments on legal and constitutional reform.