Tom 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…