Thanks to Google books and B&N I’ve been reviewing the Journal of the Convention for forming a constitution of government for Massachusetts Bay, which began on September 1, 1779. Conducted some eight years before the famous Philadelphia Convention in 1787, the proceedings of this convention clearly show the process of conducting a constitutional convention was not created from whole cloth in Philadelphia. As scholars such as Wood have pointed, the American framers were, as a group, experienced with framing constitutions long before they secured permission from the Congress in 1786 to conduct a convention to amend and strengthen the Articles of Confederation.
Posts Tagged ‘Constitution-Making’
Staging the Play of Zimbabwe’s Constitution
In Constitution-Making on February 21, 2010 at 9:08 amIn an interesting engagement of an ongoing constitution-making project, a playwright named Steven Chifunyise in Zimbabwe is currently putting on a play concerned with the country’s current issues with its constitution. According to a recent post on the play, Chifunyise is quoted commenting on the constitution and the play:
“What is wrong with the current one? Why was the 2000 constitution rejected? How achievable is a people-driven constitution? Who are the people? What are the dynamics of constitution-making? What fundamentals and ideals make a democratic constitution? Who are the custodians, enforcers and watchdogs of a democratic constitution?”
The playwright is asking some good questions about constitution-making, questions I haven’t always heard from those involved more directly in constitution-making.
I wonder if increased promotion of the arts in the early stages of constitution-making as a way of engaging more audiences should be advocated in future projects.
Agendas in Political Design
In Constitution-Making on November 16, 2009 at 9:17 amTom Ginsburg writing at ComparativeConstitutions.org posted some commentary on the NYT article about Peter Galbraith, his role in advising the Kurds during the Iraqi constitution-writing, and his financial interests in Kurdish oil fields. The issue that Ginsburg raises is one of ethics and interests in advisers of constitution-making processes, and it’s something that people have been concerned with since the beginning, whether it’s how personal interests may or may not have affected the American Framing Fathers or how modern day advisers may have shaped the Iraqi constitution.
For me the issue is less one of human nature (which likely hasn’t changed much in the last few thousand years and is always present) and more one of process. We can expect that participants (and advisers) in a political design process will possess personal interest, even if they don’t always act upon it. But I think we can also expect that some individuals will, on some level, take the opportunity to advance their own individual interests, even as we assume that they are already acting for the interests of some recognizable constituency in the overall process. Here I think we look to process, and how we construct the overall political design effort, to anticipate the human nature that we know is present.
From a process point of view, here is a question: how common is it in modern constitution-making processes to run analyses of interests among the participants as the actual political design is being drafted? I do not mean questions of “which party gets the most representatives?” or “how do the tribes rotate key offices?” I mean analysis of networks and relationships, exploring (and exposing) the variety of stakeholder interests that may be present in the decisions and discussions of the drafters? From a process point of view, we can try to vet and enforce ethical norms on the front of a process (conflict of interest policies and interviews and such), but we can also take an audit/analysis approach, creating a net or filter to identify (catch) the relationships that are considered improper or distorting to the overall process.
Given the often intense political and economic interests at play in contemporary design projects, such an analytical and critical role is likely best handled by an group not directly involved in the design process itself… and we’re back to avoiding conflicts of interest and maintaining objectivity…
Constitution-Making via SMS
In Civic Media, Constitution-Making on September 10, 2009 at 8:29 amWith the Gov 2.0 Summit going on right now (yeah, I wish I was there too!), all attention among US bloggers/posters is on gov 2.0 issues and applications and American-style civic media. While I am absolutely interested in the evolution of civic media in established and stable political communities, I am also very interested in what kinds of civic media and underlying civic infrastructure we can create and deploy in other parts of the world where they are actively involved in basic political design (aka “constitution-making”).
A few recent examples, which I’ve mentioned in previous posts, keep me very hopeful that in more and more places people will be able to deploy easy-to-use technology to enable new levels and forms of public participation in the process of designing government. The idea of constitution-making through SMS might sound laughable to traditional advisors to constitution-writing bodies, but the convergence of a variety of technologies takes the idea from laughable to plausible. It should at least give us pause long enough to consider some new combinations and process.
Across the developing world people have for many years leapfrogged certain technologies that are foundational pieces of infrastructure in the developed world, and cellular technology is foremost among those. From disaster response to mHealth, a variety of researchers and organizations have been developing and successfully deploying mobile phone applications for rural and dispersed populations in many countries. Relying on a wide variety of combinations of SMS and webtools, these systems make real-time public education and collection of information not only possible but increasingly valuable sources of information and response.
A few recent examples of SMS applications, civic media, and visualization tools point the way towards how innovative supporters of constitution-making can, in the field, deploy unique and tailored systems to alter the role (and level of participation) of the public in the process of designing new governance.
To start with, the recent Afghanistan presidential election was tracked by people in the field and updated throughout through a mapping and visualization tool that included both voter turnout but also relative levels of violence. The service was produced in partnership with the Global Development Commons by US AID.
GeoCommons
Because of the data layers loaded, the GeoCommons application allows users to select and overlay a variety of interesting and relevant data, such as threat assessments, demographics, and poppy cultivation. Those of us here in the US could certainly use these kinds of tools for our own frequent elections (and one has to wonder about the interesting data that people would load and the new connections and questions that people would start to ask as a result of the information). Deployed in other countries for presenting important and relevant information, such as the real-time voting results and violence data, such tools would be very useful during a constitution-making process, and would give viewers (both the public as well as participants in a constituent assembly) a potentially different understanding of where and how things are playing out, in real time.
Another application that draws on existing SMS technology (along with Web and email) to gather and visualize various distributed data is Ushahidi. Their cool tagline is “Crowdsourcing Crisis Information,” and indeed it’s designed for individuals to report and pull down crisis information. The data submitted by individuals is mapped geographically but also temporally, allowing users to see both maps and timelines of events.
Ushahidi.com
We can easily see this application being redeployed during the several months of a constitution-making process, capturing and visualizing the priorities and suggestions submitted by individuals across a country, shown by by region and locality, but also revealing any trends or shifts in the public consciousness across the course of the process. Rather than a relative handful of “representatives” sitting in a constituent assembly being the only ones debating the interests of their constituencies, such discussion could be augmented in real-time by direct data from across the country.
Another interesting civic media application is NationBuilder by Jim Gilliam, demonstrated by White House 2. The site enables people to collaborate on priorities, policy, and talking points, and in the case of White House 2, allows Americans the opportunity to see what executive branch policy might be like if it were a true democratic system of governance rather than an individual, executive function.
The potential with a site like this is obvious: a space for a dispersed population to assemble in a virtual forum to collaborate on creating and debating/voting on constitutional principles, establishing local and national priorities, and collaborating on political design options and preferences. Whether used just as dynamic input to the constitution-making process and the debates of the constituent assembly or as a major component of actually identifying and selecting design options, the potential for this kind of civic media to change the nature of citizen responsibility for a new constitutional order is clear.
www.sokwanele.com
The fourth app that I want to highlight, and which I’ve highlighted in a previous post on Zimbabwe, is the ZIG Watch portion of the Sokwanele.com site. This site includes a variety of useful and interesting information and apps to keep individuals informed about the background political agreements and the changing state of affairs in terms of things like reports of abuse and transgression against the agreements (tracking and displaying news reports).
Looking across just these four examples of civic media, mobile applications, and data visualization, we can easily imagine combinations of these used to draw directly on the interests, ideas, and preferences of a large distributed population to provide entirely new input to constitution-making processes and in the process provide very valuable real-time data and information about participation and evolving preferences to members of a constituent assembly, other agencies, and other observing / supporting organizations, to say nothing of creating an incredibly rich informational feedback to the constituents themselves.
A constitution-making process in places like Zimbabwe or perhaps Nepal, armed with information-rich sites with up-to-date background information and useful visualization tools like ZIG Watch, augmented with collaboration, mapping, and visualization sites that enable citizens to collectively create and endorse priorities and political design options, layered with data on demographics, opinions, participation, and violence, would enable an entirely new discourse and experience. Such a process with those civic media tools and built on the specific local civic infrastructure could create, especially in “developing” countries, a whole new dynamic in terms of participation, innovative thinking, and grass-roots buy-in to both the process of designing a government as well as the resulting design itself.
Nepalese Constitution-Making
In Constitution-Making on September 10, 2009 at 5:53 amI just came across a short article in myrepublica.com, a Nepalese news site, about the Constituent Assembly in Nepal meeting with a French parliamentary team that is visiting Nepal because of their ongoing constitution-making and peace process. It’s a short article and I’m not yet up-to-speed on the current Nepalese constitution-making activities, but the one statement that caught my eye was a quote from the chair of the Constituent Assembly, commenting on the French interests:
“They enquired about the latest progress, obstructions and other challenges in the constitution-writing process. ‘They also asked whether the country is adopting presidential or prime ministerial system.’”
Note that the French visitors are asking about what they probably consider to be a fundamental and obvious design choice: presidential or prime ministerial. This is emblematic of the extremely limited political design choices that constitution-makers (and constitutional lawyers in particular) continue to perpetuate, and something that we need to reframe as we move further into the 21st century. This is an issue that we will come back to shortly.
Mapping Politics
In Constitution-Making on August 20, 2009 at 11:05 amThanks to Ines Mergel and her Government 2.0 blog post this morning, I caught the GeoCommons-hosted (geographic) map of today’s Afghanistan presidential election (for those interested, Thomas Barnett, one of my favorite strategic thinkers, has an Esquire article today on why the Afghanistan election may not be that important). The map presents geographic data on the ‘04 election, along with data for today’s election and violence in Afghanistan that’s being uploaded today. USAID’s Global Development Commons has background on the collaboration that is making the election map available today.
Using wireless technologies, handsets, and SMS to upload real-time data from diverse locations in developing areas is nothing new (check out all the “mhealth” mobile health applications and systems that have been deployed around the world in recent years), nor is mapping data onto geography to visualize information. But what I like about these continually evolving fusions of mobile applications is what they can come to mean for the act of political design. While we tend to use them as we do today, to report election participation and violence in developing countries (the Gap, in Barnett’s framework) or to collect and monitor health issues and infectious disease outbreaks, there is clearly the potential for much more in these collections of web-tools, cheap wireless technologies, and visualizations.
I very much like the notion, which we begin to imagine now, of employing these ad hoc systems to alter the nature and flow of political design in the developing world, in places like Africa, where the extant “civic infrastructure” can be minimal at best, and where, not incidentally, there has been and will continue to be the greatest need for creating new governance systems. Rather than simply augmenting classic (contemporary) constitution-making to track citizen participation at the polls (and violence there as well) or to keep “pushing” public service-type information about a constitution-making process out to widely dispersed rural populations, these mobile information collecting, reporting, and visualization systems could be creatively employed as part of the design process.
Imagine a year-long political design process having connected applications so that citizens, using their mobile phones and/or mobile devices of support agencies, could at various stages upload statements (votes) on the governance issues and/or arrangements that were most critical to them, suggesting both governance priorities as well as governance structures. Visualizing this through (geo)mapping applications, aligned with various other population, stability, economic, environment data, etc…, a coordinating/synthesizing body (what would classically have been some form of constituent assembly or early special constitutional commission) would then have an entirely new set of data with which to both understand the desires of “the People” and preferred governing arrangements suggested by localities as well as other definable communities (which in many cases are nonspatial). Armed with such information, a coordinating body could conceivably create highly nuanced and very customized political systems, tailored to the needs and preferences of different yet interrelated communities.
Such information, being continually produced, integrated, and visualized for the public throughout the year-long process would have interesting recursive influences on the shape and nature of an ongoing public constitutional discourse. The process could conceivably cause very unexpected but innovative discussions and transformation of public understanding and participation in a constitution-making process. Such a technology-enabled process would be far more justified in calling itself “democratic” than any other historical example of political design.
Civic Media for Nation-Building
In Civic Media on August 17, 2009 at 11:39 amI just got through checking out the cool White House 2 site by Jim Gilliam. The site is focused on US national priorities and enabling American citizens to post and weigh in on particular policy options. The site “is a multi-partisan network of 9137 citizens imagining how the White House might work if it was run completely democratically by thousands of people over the internet. It’s free and all U.S. citizens can join.”
At first the site, which allows members to propose a policy priority and also endorse or oppose priorities already on the “board,” reminded me of the venerable Hollywood Stock Exchange, with which it does share certain similarities. But I quickly came to see it as a much more interactive and potentially valuable cousin to the legislative idea sites that popped up in a few states a couple of years ago (see the 100 Ideas Foundation for the popular origins).
In the words of the site, “We’re setting priorities, collaborating on policy, and creating a massive database of 2705 talking points covering all sides of every important issue facing our country” and “The more people who endorse a priority, the higher it rises in the charts. The more people who join the network, the more clout we will have with the President and the media.”
It’s a very cool piece of civic media, one that simultaneously experiments with what would be applications for genuine democratic political systems and creates a platform for aggregating public interest and opinion to explicitly apply pressure to America’s current republican system. In its potential for tracking large samples of public opinions, it has the potential to be more useful than periodic and proprietary polling data, and certainly something that evolves in real-time. In its potential to structure and collect priorities and policy options suggested by the citizenry, it could turn out to be one of several useful experiments in “crowdsourcing” solutions to public issues.
I like this both for its potential as an example of civic media able to create new structural bridges between the governors and the governed in the representative systems that dominate the world today, as well as for its example as a component of future political designs. Anyone actually involved in political design today (yes, that’s you, constitutional lawyers advising constitution-making processes around the world today) needs to seriously consider these new civic media tools and applications as potentially fundamental components of new governance systems.
Additionally, in this current wave of political design, in which many scholars and experts are promoting the idea that the process is as important as the outcome, and for which experts are encouraging broader citizen participation, tools like Gilliam’s NationBuilder might be useful platforms for expanding useful (i.e., structured) mass citizen participation in the actual design of constitutions.
Tracking Political Breaches
In Constitution-Making on August 4, 2009 at 11:05 amAs part of my growing interest in Zimbabwe’s current constitution-making process, I caught a post today from Sokwanele.com, covering what they call their ZIG Watch (Zimbabwe Inclusive Government Watch). This section of their news site offers some interesting information and visualization tools to track the “breaches” of the current Global Political Agreement (GPA) that unites the three major political parties: Zanu-PF, MDC-T, and MDC-M. Within the GPA is also the agreements on the constitution-making process that we’re following.
The new ZIG Watch tools appear to allow users to very easily select specific Articles within the GPA and see who has been “breaching” agreements within those articles. Users can see visualization on which parties are responsible for beaches, and the user can drill down to see specific news articles that identify the actual accused breaches, as well as see the specific sub-items for each Article that were violated.
www.sokwanele.com
Users can also look at overviews of breaches and violations and see relative numbers of violations by the parties over time. The page also provides a copy of the GPA that users can look through to see the full language of the agreement and all of its components.
In all, I think this is a very cool set of apps that Sokwanele has put together. I’m differently interested in how these kinds of apps could be put to more widespread use during other constitution-making processes in other countries, and in fact I’m wondering how they might be deployed more specifically to improve the constitution-making process in Zimbabwe itself.
Now, if they could wrap around this or weave through it interactive elements, building on other social networking and social media tools to support conversation and creative work, then a whole new level in citizen involvement might be achieved. These tools are definitely important for information, education, and political monitoring, but they’re not quite the new civic media so many are trying to build.
Parallel constitutional process
In Constitution-Making on July 27, 2009 at 9:09 amToday in Zimbabwe a group of about 67 NGOs and an expected 4000 civil society attendees are gathering to launch a “parallel constitution making process,” just as a formal government-sponsored process in underway (which, I’m not certain, but I would expect contains fewer participants). One of the organizers was quoted as saying “Our agenda is to get a genuine process that will give our country a democratic constitution. At the convention we will launch under the banner of ‘Take charge’ and thereafter take it to all people in the country.” The concern of the organizers seems to be that the government’s process will not be representative enough of the people.
While all constitution-making processes are issues of power and represent very real potential consequences for constituents, this organized parallel processing is a fascinating example to start to watch. This kind of competition for organizing the political community of a state calls into question the basis and genealogy of constitutional government.
Contemporary constitutionalism is founded partly on the concept of popular sovereignty, something that for some scholars such as Donald Lutz (Principles of Constitutional Design) is so central to the issue of constitutionalism that all inquiries should start with it. But watching two organized, and competing constitution-making processes forces us to reconsider (at least in the philosophical context) how popular sovereignty, the will of the people, is actually manifested in legitimate ways.
Constitutional government is at its core really just government that the political community consciously and willfully creates for itself. So, how do we untangle the claims to legitimacy in a situation in which a standing government (itself representative rather than democratic) seeks to make constitutional change while another set of actors composed of different ‘representatives’ of the people self-organize to construct a differing constitutional order? At what point does a prior constitutional order, even if all of its legal forms are followed, truly cease to be more legitimate than a competing popular drive, assuming that each of the competing groups are composed of no more than a relative handful of ‘representatives’ of the people? Outside of the contests of raw power and force, how should contests and claims of popular sovereignty, and thus the authority to organize the political community, be judged?