American Advice and New Constitutions

The early 1990s were among the most extraordinary periods for constitution-making in the history of the world. Several people at the University of Chicago Law School played a role in this period, mostly as observers, to some small degree as participants. The editors of this Journal have asked me for some brief reflections on this remarkable time; I am grateful to have been asked and happy to oblige. This is an impressionistic essay, but I do have a principal theme.

It involves the conflict between what might be called pragmatic and expressive conceptions of constitution-making and constitutionalism. Americans generally tend to think of constitutions as pragmatic instruments, important for what they do in the real world. In Eastern Europe and (to a lesser extent) South Africa, by contrast, expressive considerations loomed very large; what constitutions say-what ideals they express-was extremely important, not merely what constitutions would do. Of course what constitutions do is often a function of what they say; I am emphasizing the role of constitutions as carriers of symbols and statements, largely for their own sake.

I also offer some brief notations on the contrast between Eastern Europe and South Africa, and on what Americans might learn from constitution-making efforts elsewhere.