I'm Jon Alger, president of James Madison
University and it's my great pleasure to welcome
all of you here today to the Forbes Center
Concert Hall. Today we gather in this beautiful
space for an event that's rather different
than some of the traditional performances
that have graced these walls since the Forbes
Center opened three years ago. Today, we are
beginning a new tradition while continuing
a time-honored one. This new tradition is
the Madison Vision Series. As you probably
know this series has been developed to advance
this University's mission, to prepare students
to be educated and enlightened citizens who
lead productive and meaningful lives by looking
at contemporary issues and challenges in an
engaged society. These lectures will bring
prominent speakers to our campus to explore
our current civic landscape through the prism
of creating an engaged and enlightened citizenry.
Later this year, in fact just a month from
now, we'll be privileged to be joined by Dr.
Carol Schneider who is the President of the
American Association of Colleges and Universities.
So that's October 16th, the second lecture
in the series. Cynthia Cooper the former WorldCom
Vice-President and Whistleblower will be with
us in November, and in March we will be joined
by Jeffery Rosen the Chief Executive Officer
of the National Constitution Center and finally
in April, Carly Fiorina, the former CEO of
Hewlett Packard and a current member of JMU's
board of visitors will be with us. So we have
some wonderful coming up and I encourage you
to come to all of those.
Now we begin this new tradition by accentuating
a long-standing tradition here at James Madison
University and that is public discourse. Public
discourse has indeed been a long tradition
here both in the classroom and across the
campus. As reflected through programs such
as the Madison Cup Debate Series or the Madison
Collaborative, public discourse plays a key
role in shaping us as individuals and as an
institution of higher learning.
In a note celebrating the idea of public education
James Madison wrote to a friend in 1822; "A
popular government without popular information
or the means of acquiring it is but a prologue
to a farce or a tragedy or perhaps both."
To honor Madison the man and the conviction
he expressed in this quotation, James Madison
University presents: the Madison Vision Series;
Contemporary Issues in an Engaged Society.
As an institution that links itself to President
James Madison, it's essential that we lead
this charge. And while that linkage has deep
roots already in our history as an institution,
today we are starting a new chapter. So on
this the 226th anniversary of the signing
of the Constitution, we are privileged to
bring together our past and our future. Our
inaugural Madison Vision Series speaker as
well as our Constitution Day speaker is professor
A.E. Dick Howard the White Berquet Miller
Professor of Law and public affairs from the
University of Virginia School of Law. Professor
Howard was awarded one of the first three
honorary doctorates granted by James Madison
University 30 years ago this past March on
the 75th anniversary of the founding of our
University. He's here with us again today
as we kick off this series. I'd especially
like to welcome Dr. Howard's wife Mary and
nephew Thomas as our guests this afternoon.
We could not ask for a more distinguished
or appropriate speaker for Constitution Day.
Professor Howard served as the executive director
of the commission that wrote Virginia's current
constitution and directed the successful referendum
campaign for its ratification. He's been council
to the general assembly of Virginia and a
consultant to state and federal bodies including
the U.S. Senate Judiciary Committee. From
1982-1986 he served as council to the governor
of Virginia and he chaired Virginia's commission
of the bicentennial of the U.S. Constitution.
Following his time on that commission. Professor
Howard was often called upon by constitutional
draftsmen in other states and abroad to consult
on their constitutions. He's helped to develop
new constitutions in Brazil, Hong Kong, the
Philippians, Hungary, Czechoslovakia, Poland,
Romania, Russia, Albania, Malawi, and South
Africa. That's quite a list, you've traveled
a lot, I see. It's fitting today that we reflect
upon the global impact of our own founding
document and the enduring principles for which
it stands. In January of 1994 Washingtonian
Magazine named Professor Howard as one of
the most respected educators in the nation.
And in 2007 the Richmond Times Dispatch and
Library of Virginia included Professor Howard
on their list of the Greatest Virginians of
the 20th century. So, please join me in welcoming
to the Forbes Center stage, Professor Dick
Howard.
Thank you, President Alger for that gracious
introduction and my thanks to all of you for
forgoing a stunningly beautiful afternoon
in Harrisonburg. I mean, I got to thinking
if I were an undergraduate at JMU presented
between the choice of hearing some guy for
Charlottesville talk and enjoying a beautiful
day I'm not sure which, I'd had to say which
choice I would've made. Professor Alger, as
you know, mentioned my teaching law at the
University of Virginia, when I first joined
the law faculty, that's the point when I was
asked to be the principle draftsman on Virginia's
present constitution and that was the road
that took me from the drafting stage to the
legislative approval stage and finally to
directing the referendum campaign where I
stumped the state talking about the state
constitution. Little did I know at that time
that that was a rehearsal, in effect, a prelude,
to working with other countries. I mean, I
teach American Constitutional Law it never
occurred to me that I might sit at the elbows
of draftsmen in places like Warsaw or Budapest
or Prague and give them some advice on drafting
their constitutions. And indeed, I was bound
to ask myself the question here I am an American
I carry the cultural baggage of an American
Constitutional Law professor and all that
which is implied so I was bound to ask myself:
"What am I doing here?" What possible advice
can I give a Hungarian or a Pole or a Romanian
on their constitutions they have their own
history, their own tradition, their own culture
and surely the American experience is too
exceptional it's going to be too different.
Its roots are in the Angelo-American Constitution
tradition, we've forged the compromise of
Philadelphia. What use is all of that to those
people in other countries? So, that has put
me in mind of the comments I want to make
this afternoon, namely to raise the question
with you, my Harrisonburg audience, what is
it the American Constitution has to say to
the world? Has it been used, have other countries
drawn upon it, what have they gotten out of
it. I basically want to tell the story through
several snapshots, several chapters, if you
like. Moments in world history, constitutional
moments, if you like, in which I think the
American experience has at least been on the
table.
The first one I want to talk about is the
Revolutionary or Founding Era in France and
America it's hard to over-emphasize what an
exciting time it was in human history. There
was an exuberance, an energy and excitement
about events on both sides of the Atlantic.
Now, you'll understand that social and political
conditions in France and America were really
very different. I mean, we had no fully established
church, we had light establishments, we had
no social orders of the kind they had in France,
we had no centralized government of the kind
that characterized France. Socially we were
very different places, but it was clear the
French were watching, with fascination, events
in America. The French philosophers of the
enlightenment period who had been writing
and talking and thinking about ideas like
liberty and equality were actually seeing
those things being acted out on the American
stage. Now, the conduit for American ideas
in that day and time was often prominent Americans,
Benjamin Franklin, Thomas Jefferson come to
mind. When Franklin stepped off the ship in
France as our first American administer to
Paris he was already a world figure. Everyone
knew about and the experiment with the kites
and the electricity, they knew about all his
inventions. So he was a phenomenon from the
moment he arrived. It happened after this
rather arduous voyage across the Atlantic,
I think he was wearing a coonskin hat to protect
his head, when he got to France they thought
that all Americans dressed that way. So the
coonskin cap became, suddenly a vogue item
of apparel in the streets of Paris. He was
really quite a figure. Franklin set out to
try to carry American ideals to Paris he saw
to the publication, translation and publication
of the early American state constitutions,
particularly that of Pennsylvania. It was
about that time that the French national assembly,
being aware of American events, conferred
honorary citizenship, in France, on James
Madison. One of their first acts of that kind.
Thomas Jefferson then succeeded James Madison.
Jefferson, he hated the cold winters in Paris,
but as you probably know he loved the French
way of life, French wine and the like. He
was very popular a dinner tables in France
and the salons of French intellectuals. And
he, like Franklin, thought it was part of
his mission to bring France to understand
what was happening in America. For example,
you know he was the architect for the Virginia
Statue for Religious Liberty and he saw to
its publication, translation and publication
in the French Encyclopedia. Now I think the
general effect of American events in France
at that time was the sense of the dawn of
a new era that this was something human-kind
had never seen before. That finally, the Americans
were proving that self-government by a free
people was possible. Now this finally evolved
into a debate over the form of government.
Famous exchange of views between French philosophers
like Torgo, Americans like John Adams, a back
and forth on, for example on whether Bicameralism
or Unicameralism were the best forms of government.
Perhaps the most tangible example that I can
give of an American idea that took root in
France would be to mention France's Declaration
of the Rights of Man and the Citizen the 1789
document. If you lay that side by side with
George Mason's Declaration of Rights for Virginia
1776, the similarities are striking and indeed,
historians have probed the way in which the
Virginia document made its way to Paris, was
used by drafters like La Fayette and others.
So the congruence about thinking about rights
had some similarity in both countries. Now
the striking difference comes when you look
at the structure of government. When the French
national assembly in the 1790's set to work
on France's first constitution, first frame
of government, 1791. They debated the differences
between the American state constitutions.
The radical faction in Paris liked the Pennsylvania
constitution because it was radically democratic.
The more moderate faction liked the Massachusetts
constitution of 1780, which was more of a
balanced, separation of powers kind of document.
That debate was resolved finally in favor
of the more radical approach. The French philosophy
being that you focus power in the national
assembly. Now, as you know, American government
has gone in very different direction. Part
of the Madisonian compromise at Philadelphia
with his fellow delegates produced separation
of powers, checks and balances, federalism.
Something very different to what the French
crafted in the 1790's. So, I would argue that
most of the world's constitutional history
from the 1790's involves at some level a choice
between an American model and a French model.
So despite that divergence what I find intriguing
in terms of this afternoon's topic, is the
extent which what was happening in America
framed the debate, whether they accepted or
rejected what Americans were doing, they used
the American experience to frame what they
were doing in France. Now that was the founding
period, my second snapshot is a period Americans
don't talk about very much, the Revolutions
of 1848 but in the European consciousness
that is a powerfully important historical moment. It really was in many ways the foundation of
much what has happened in Europe since that
time. Revolutions broke out in France and
Germany and Hungary and a number of other
places and in France we had an interesting
sort of re-play of the debates that I just
mentioned in the 1790's and once again the
French came down on the side of Unicameralism.
What I find especially striking is that the
debates took place in Germany. There was an
election to parliament at Frankfurt at the
Paulskirche Church in Frankfurt at which liberals
formed most of the delegates indeed most of
the delegates, you professors here will like
this, most of the delegates were academics,
right, as if they were the ones one should
entrust with the writing of the constitution,
in fact many of the academics were law professors.
And the two issues that were in the upper
most in the minds of the German delegates
were federalism and judicial review. It's
fascinating to read the debates at the Paulskirche,
1848- 1849 and hear the delegates draw upon
and use as illustrations American experience.
Federalism for example, Germany had had some
experience of a sort of loosely federal arrangement
but they were quite impressed to make federalism
actually work. The German delegates were very
well read, there was one Grerman professor
called Mittermeier he was a distinguished
scholar he had honorary degrees from American
Universities and he said, here's what he said:
"Read the American Constitution in the usual
bad translations, and compare it to the living
constitution it owes it vitality, its vigor
to the Supreme Court. I ask you gentleman
to turn to the experience of America, let
us follow their example and we shall harvest
the most splendid fruits." So when the German
delegates turned to thinking about courts
and judicial review, it's quite striking that
this constitution they drafted which did not
go into affect, but it would have created
a high court, a constitutional court with
powers to strike down active legislature and
as you know if you've studied James Madison
and that period and John Marshal's decision
Marbury vs. Madison you know that judicial
review the power to strike down legislative
acts is a key component to American Constitutionalism.
It was device that was largely unknown to
the European scene until after World War II,
it's now begun to take hold. But back in the
early 19th century it was a phenomenon that
was peculiarly American and yet here were
the Germans purposing to do it in Germany.
As it happened the conservative powers of
Prussia and Austria in particular snuffed
out the Frankfurt constitution. But its legacy
remained because if you look at today's German
basic law of 1949 you see principles that
clearly derive from that document back in
1848. My third snapshot is now we fast-forward
to the 20th century into America's colonial
period. You don't generally think of America
as a colonial power, we think the French and
the British and the Spanish and the Portuguese
did colonies, but that's not the American
way, well we did have an important colony
in the Philippines. After America won the
Spanish American War, the question then was:
"What should we do with the Philippines?"
Puerto Rice, you know that story, but what
about the Philippines who were anti-imperialists.
They were people like William James and William
Jennings-Brian, they said Imperialism is not
a part of the American tradition, we do not
colonize other peoples and we ought to simply
turn the Philippines over to the Filipino
people, let them run their own affairs. On
the other side you had imperialists or expansionists
some of who argued we should keep the Philippines
for commercial purposes, for military purposes
to have naval bases and the like. But the
most striking argument for staying in the
Philippines was essentially a sort of evangelical
argument, if you like, and that was that American
owed a kind of spiritual or moral duty to
the Filipinos to sort of bring them up to
the American life. Here's what Senator Albert
Beveridge said in 1898: "American law, American
order, American civilization, and the American
flag will plant themselves of shores hither
to bloody and benighted. God has marked us
as his chosen people henceforth to lead in
the regeneration of the world." How about
that for an expansive point of view! The regeneration
of the world, another name for it would be
manifest destiny that we owe other people
that moral duty. There was a process, President
McKinley, William Howard Taft began the process
of what I would call the Americanization of
the Philippines. Taft used a phrase that,
today, would strike you as peculiarly incorrect,
but he talked about the Filipinos as our "little
brown brothers" well, perhaps a hundred years
ago that was perhaps a comfortable phrase
that we might think differently today. But
to give the people of a hundred years ago
credit, they weren't simply going to stay
in the Philippines and exploit its resources;
they did have this notion that America should
begin this process of moving the Philippines
toward some kind of self-government. Now,
the Filipinos, I have to say had other ideas
about that there was a very nasty civil war
because they thought we were going to whip
the Spaniards and then leave and we stayed
and they weren't too pleased about that. This
Americanization program, as I called it had
three parts, one was moving the Philippines
towards self government beginning at the local
council level and gradually moving up to the
national assembly, gradual expansion of the
franchise. Second component would be of special
interest to James Madison University given
its genesis and earlier days as a teachers
college and that is education. The notion
was that Filipino schools would look more
like American schools. I've looked at textbooks
that were printed for the Philippines that
were printed in those days and they are really
like American textbooks filled with stories
of self-reliance and hard work and honesty
all the values one would like to inculcate
lower school students. So you had civics lessons
in the Philippines schools that were very
much American in origin. Thirdly there was
a transfer of American jurisprudents that
American laws and procedural codes were imported
to the Philippines, American judges were present
in Filipino courts and indeed if your President
or I argued a case in the supreme court of
the Philippines in those days we could site
American Supreme Court cases as president
and they would be fully binding upon the Filipino
supreme court. Well, again to give credit
to the people of that day and time they put
the Philippines on the process, finally of
writing a constitution, that we're certain
meets and bounds limits what they could do
but they were allowed to do it and the idea
was independence, I think in 1944, that was
delayed a little bit, obviously by World War
II. But the constitution they wrote has strong
American imprints on it. It is a Presidential
system. It does have constitutional supremacy
not parliamentary supremacy, it does have
judicial review. So I think that's once area
for better or for worse that American constitutionalism
clearly was a very much part of the conversation.
Next snapshot is the age of Woodrow Wilson.
I mean, anybody who has read about or heard
about Wilson remembers the famous phrase that
Wilson saw World War I as the occasion to
make the world as he put it "safe for democracy."
Wilson was, as you may know, a Constitutional
Law professor at Princeton before he became
Princeton's President, Governor of New Jersey,
and the U.S. President. And his thinking about
post World War I constitutions was not that
they should imitate the American constitution,
indeed I think he was more concerned about
self-determination and democracy than he was
about what we would call Constitutionalism.
So the post World War I constitutions of Europe
for the most part met Wilson's general requirements
of popular representation, an administration
subject to the law, an independent judiciary,
and a bill of rights. An interesting story
in particular is the story of Tomas Masaryk
in modern Czechoslovakia. Until World War
II, what became Czechoslovakia was simply
part of the Austro-Hungarian Empire and political
leaders in those lands wanted independence,
but Wilson at one point was inclined to think
maybe you could keep the Austro-Hungarian
Empire in place but simply have a fair degree
of autonomy for its constituent parts. That
was not enough for Tomas Masaryk and the other
Czech and Slovak leaders. Masaryk actually
lived in this country and he knew American
culture very well and he understood his audience.
He actually went to work on Wilson to sort
of bring him to think of Czech and Slovak
ambitions as being like American ambitions
at the time of our Delegation of Independence.
It started in of all unlikely places Pittsburg.
Any body here from Pittsburg or not? No, apparently
not, but if you were you'd want to know that
the Pittsburg Declaration of 1918 was the
beginning of the road to Czech and Slovak
independence. The declaration of independence
for Czechoslovakia was then written not in
Prague, but in Washington, in fact, the first
draft was in English. And it's full of Lincolnesque
kind of phrases and it's clear that Masaryk
and his colleagues were playing upon American
public sentiment to see the Czechs and Slovaks
as being a bit more like us. It's interesting,
he brought Wilson around, Wilson finally came
out for Czech and Slovak independence and
Czechoslovakia came into being, but if you
read the first post-war Czech constitution,
it doesn't feel or look very American it feels
very European so I think work of American
influence was largely done before that moment.
Next snapshot, we're moving quickly into the
modern era, Japan and Germany after World
War II. There was what was called a Potsdam
Declaration of 1945, which called for the
unconditional surrender of Japan and called
for Japan to establish a democratic government
with respect for human rights before the allied
forces would finally withdraw. General McArthur
was the show-gun of Tokyo he was the supreme
allied commander. And when he was in Tokyo
one of his concerns was to see a new Japanese
constitution written and it was thought that
the Japanese would bring one into being. The
Japanese government stayed in place unlike
the Germany after World War II. So, the Japanese
went to work on a constitution, but word leaked
out finally McArthur realized all they were
going to do was tinker with the old, pre-war
constitution they actually modeled on the
Prussian Constitution of 1885 and McArthur
knew that wasn't going to be enough and the
Japanese weren't getting the job done. He
was worried that unless they moved the show
along that the Russians would get involved
and then you'd have the problem in Japan of
carving up Japan the way Germany had been
carved up after World War II. So, McArthur
turned to his military government team and
said, "I want a constitution." Well, I served
in the army and I'm sure if I served under
General McArthur, and he said write me a constitution
I would say, "How soon do you want it, sir?
I'll have it on your desk in the morning."
Well the military government team it took
them seven days. Think about Philadelphia
and several months to write our constitution,
think about writing a constitution in seven
days. But that's, just to say, that was McArthur's
way of doing things. Well, the Japanese were
appalled because they thought they were going
to get to do the job. Here's this constitution
being presented to them by the American military
government. It was a very much a new deal
era constitution it had a lot of ideas that
even our constitution doesn't have. It had
women's rights in there for example, something
ahead of its time for 1946 labor unions were
protected, a liberalized economy and the like,
and so notions about positive rights. So we
got a new constitution in place thanks to
McArthur and it's a remarkable document. As
a kind of compromise they retained the emperor,
they thought they needed that sense of connection
with Japanese ways, but the most famous part
of it is article nine, the peace provision
that renounces war and renounces defensive
forces. It has fundamental rights, it has
judicial review Marbury vs. Madison makes
its appearance. When that constitution went
into place in 1946 and Americans finally withdrew,
you would have imagined, at some point the
Japanese would say fine, the Americans are
out of here, let's write our own constitution.
It didn't happen the Japanese constitution
that is presently in full-force and effect
was the same document that was drafted and
implemented in 1946. It has never been amended.
Now you're bound to stop and say, now wait
a minute, why would the Japanese keep in place
this American document, the answer, I'm not
a student of Japanese culture, but the answer
has to be the Japanese have made it Japanese
through practice and convention this is the
living constitution at work, that they have
interpreted it, applied it, and used it in
a way that it becomes a part of their culture
whatever its original drafting might have
been. In that sense their story is not unlike
what you might call the living constitution
in this country.
Germany's story is a bit different because
the Japanese constitution was written, as
I say in 1946. The German drafting took place
a little bit later and the critical intervening
event was the events of 1948, the fall of
Czechoslovakia into Communist hands, the Berlin
blockade, the Berlin airlift, the Korean War
was just around the corner in 1950, but the
Cold War had begun. Suddenly we were turning
to our Axis enemies of World War II, to confrontation
with the Communist Empire. It was the era
that Harry Truman called for 'containment,'
George C. Marshal and the others were at work
with the Marshal Plan, the world had changed
fundamentally and the Germans knew it. The
Germans understood that America now say Germany
as a potential bulwark against Communist expansion
which gave the German drafters of their first
constitution far more bargaining power than
the Japanese had in Tokyo. And so the Allies
would make demands on the Germans, the German
leaders would be careful enough, nimble enough,
to sort of deflect some of those demands.
The result is that the German Basic Law of
1949 is much more authentically a German document
than the Japanese constitution of 1946 was
Japanese. But this is another case where I
think American influence is present though
not always understood and that is, the 1949
Basic Law drew, as I've commented on, on the
principles of that 1848 Paulskirche Constitution,
in turn the German constitution has a strong
constitutional core, it has constitutional
supremacy, it has federalism, it has recognizable
features from our study point. It, in turn,
has proved to be one of the world's most influential
constitutions. The South Africans drew heavily
on the German model the post-communist countries
of Central and Eastern Europe after 1989 drew
from the German model. So to the extent that
we influenced 1848, which influenced 1949,
which influenced these new democracies, you
see the lingering influence of some fundamental
American principles.
Now the post-World War II period is a period
where international law really makes its appearance.
Any drafter today of a national constitution
cannot ignore international norms, conventions,
treaties and the like. The United Nations
Charter, the covenant of human rights other
UN documents have been very important sources
of drafting in the post-World War II period.
The last snapshot I want to lay before you
is in an area where I... my students think
I worked in some of those earlier periods
but actually... I hadn't been around that
long. But I missed some of those episodes;
I was not with Madison at Philadelphia whatever
the conventional wisdom may be. But I did
have a chance to sit at some elbows of drafters
in post-Communist Europe this is after the
Berlin Wall came down the State Department
asked if I would meet with some Hungarian
drafters who came over, they came down to
Charlottesville we spent a couple of days
doing a seminar in effect; what do you do
when you write a constitution? They then invited
me to Budapest and I worked with some of the
drafters over there and found myself in some
of the other capitals of the region, Warsaw
and Prague and other places. And I was quite
fascinated to see these drafters at work.
I mean think about a part of the world, which
had been under Communist control from the
1940's into the 1980's a couple of generations
time, before that was the Nazi period World
War II, and before that most of those countries,
save Czechoslovakia, never had any democratic
experience. I mean, in Romania for example,
democracy was a total alien experience to
them so you had that long period of lack of
acquaintance. You then had the overlay of
the Communist system itself. I traveled some
in these countries before the Berlin Wall
came down and it's hard to over-emphasize
the stifling effect of Communism. That the
Communist party, when they took over a country
set out to destroy completely the foundations
of civic democracy all intermediate bodies,
trade unions, or churches or any other group
was to be subservient to the party or simply
be wiped out. There was nothing standing between
the party's will and the individual. The result
was a totally corrupt system where the rule
of law was a joke. With what you got as a
citizen depended on who you knew, deals under
the table. They talked about telephone justice
procurator would call the judge and simply
tell him how to decide a case. It sort of
makes a joke of the rule of law. I remember
being in Moscow in what had been Leningrad
soon after the Berlin Wall had came down,
meeting with some drafters on the first post
Communist Russian constitution and we were
working through translators, I don't speak
Russian, and this translator was very good,
trying to do an honest job. We learned that
she was translating the English phrase 'rule
of law' as 'socialist legality.' Well, we
had to say; "no that's not really quite what
we mean, it's a little bit different from
that." But you see the impact, the imprint
culture makes in history and tradition in
that Communist era. You can't do a sudden
180-degree turn and wipe away that experience
even though those leaders after 1989 were
aspiring to constitutional democracy it's
not going to suddenly flair into life in a
moment. So there was an enormous burden of
history to overcome the cynicism of law and
institutions. There was on the positive side
in particular the draw of Western Europe.
Eastern Europeans saw themselves as being
wrenched from the family of Europe by World
War II and the Communist period so they did
have the strong influence of countries like
Germany, the United Kingdom and others. Which
brings me to the question that I have basically
been trying to track through all these historical
episodes namely; "where does the American
experience belong in all this?" Now there
are different views of that, I do have academic
colleagues that say that American exceptionalism
is such, that basically the American experience
has no place, there really isn't much to tell
other people. That's one side of it. Then
on the other side you have, I ran into lawyers
in airports in the post-'89 period that would
sort of say "ah-ha! You want to write a constitution,
I've got one right here in my pocket, 'We
the People of: fill in the space' and just
go on and copy it out." Well, that was a crazy
idea from the beginning. Among the arguments
you'd hear against the relevance of the American
experience, first; that there are no universals.
No this is sort of like the argument against
human rights, you hear the Chinese government,
for example, or some of the authoritative
states in the world, they say; "human rights
is a western invention, it's cultural imperialism."
Well when they fairly debate that I happen
to think that the human condition invites
certain universals whatever those might be,
I think you can apply that to constitutions
as well. A second argument against the relevance
of the American experience is exceptionalism
that our whole system evolved over centuries
of Angelo-American development going back
to Magna Carta, the English Bill of Rights
and beyond and that can't simply be replicated
elsewhere. A third argument is just look at
the text of the Constitution, it's short,
a few thousand words, mercifully short, a
quick read, and it's an 18th century document,
written by people who were living in a time
before the modern welfare state came into
being, the administrative state that we're
familiar with simply, didn't exist. Government
was assumed, in those days to have limited
functions. Indeed in many ways... think about
the place of the federal constitution in the
American system it is, by design an incomplete
document. I say "by design" incomplete, why,
because it assumes the existence of the states
and their constitutions. My work with the
Virginia Constitution, for me at least drove
that point home. The framers of the federal
document understood they were not wiping out
the states, that most people would live their
daily lives under states' governments and
states constitutions and in a sense to get
a full picture of American Constitutionalism,
you have to take the United States Constitution,
the states' constitutions and put them together.
Once again it's argued that that incomplete
nature of our constitutional document makes
it an unsuited model for other countries.
Finally there's the argument the federal constitution
is really about process, structure, institution,
where as most modern constitutions have a
great deal to say about the outcome of policy
for example in social and economic matters.
Well all those are fairly formidable arguments
I could just wrap it up and quit at that point
and say; "Fine we're convinced the American
experience is really not very relevant." I
think the relevance of our constitutional
insights does not lie in the text of the document,
the notion that you can sit down and draw
up a will or a deed and just copy it out of
a formbook, constitutions are not like that.
The relevance, I think, lies when you put
on the hat of James Madison and you borough
into the fundamental principles, the ideas
that underlie, that make the constitution
what it is. Read the Federalist Papers, it's a
hard read but it's probably the most creative
contribution anyone has made to American political
theory if you work your way through that you
begin to see the architecture of American
constitutionalism the principles that I am
talking about and so my approach when I've
been working with foreign drafters is not
to hold our constitution out as a model but
simply to ask a lot of questions raise some
issues and say; "might there be certain fundamental
principles that any constitution maker should
presumptively should take into account and
then decide whether it works for that country
and if so how exactly they want to put it
into structure. I'm thinking for example of
American Federalism and your first instinct
is yea, that is a peculiar arrangement, for
Americans, by Americans and that can't have
any relevance elsewhere, but if you think
about the point of federalism is to adjust
the boundaries in some, often awkward way,
but to sort of realize there are decisions
at the center and decisions at local levels
and that there's a proper place for both,
each has its place and in a way they act as
counterpoints to each other. Tocqueville recognized
that in his work in American democracy. So
transporting that idea, it may not turn out
to be federalism in the formal juridical sense,
but it may be subsidiarity, it may be devolution,
there are lots of names for it. The underlying
principle is the same, namely, there is a
place for local decisions by local people
and a system that is otherwise centralized.
Second example: judicial review. Judicial
review is, I think in many ways, one of the
most distinctive American constitutional contributions
to constitutional theory. But once again,
it doesn't have to be another country will
recognize Marbury vs. Madison. Their high
court doesn't have to look like our Supreme
Court. In Europe, for example they have constitutional
courts, which are really a separate branch
entirely independent of the ordinary judiciary.
The point is not precisely how you do it,
the point is recognizing the underlying principal
in this case constitutional supremacy. In
my judgment judicial review is not a bad way
to work. The point is the constitution can't
be an ordinary law. It's not just another
statuette. It's got to be recognized in some
respect as fundamental law, which is over
and above ordinary law. Now, the ways, there
are other countries that have adjusted the
boundaries of judicial review in ways that
don't look like Marbury, but again the underlying
principle is the same. One more example: separation
of powers and checks and balances. Most countries
have three branches the way we do. Some countries,
some Oriental countries for example, have
five branches. The point again is not to have
the precise box and string chart of how the
government operates, it's recognizing that
something like the separation of powers coupled
with checks and balances is a way of sort
of emolliating overweening power. I think
our framers recognized that unless you have
some way of power confronting power, Madison
famously talking about faction; "faction against
faction." The idea of contending forces fragmenting
concentrated power. Once again there are lots
of ways to do it, but I think the underlying
principle is valid.
Coupled finally with that, is something that's
much less obvious, it's more mundane, it's
more grass roots and that is in addition to
grand principle the sort of ideals I've been
talking about. There's something everyday
about making constitutions work and I've found
that, for example in the post-Communist countries
that the most valuable lessons the Americans
could take to their European counterparts
was just the day-to-day operations of constitutional
government. An independent bar, an independent
judiciary, how parliaments work, a free press,
and all this sort of nut and bolts ... and
city councils, and how local governments work
and that sort of thing, it was a valuable
lesson. And finally at the base of all that,
if I had to search for one thing that makes
constitutional government work, to make it
valid, to make it a reality, I would talk
about civic education. It seem to me, that
the inculcation in the ordinary people in
our country, of the, they may not talk about
it as constitutional law that maybe lawyers' talk.
For them to understand what it means to be
a citizen of a constitutional democracy, something
as basic as fighting in an election, being
on the losing side, stepping aside and accepting
that the other guy won and then fighting in
the next election. That's not a universal principle
by any means, but that to me is part of what civic education is about. That brings me right back
to what's happening here at James Madison
University and other universities, I hope,
throughout the country. Namely when your studying,
it may not be a course in political science,
it may be some other course, but if you're
sort of beginning to internalize the lessons
of civic education, how do you resolve the
tension between accountable government where
people make the decisions with constitutional
limitations. I mean, there's a lot of tension
there inherently, making those... yet both of them are fundamental
propositions, which we should care about.
So, instilling the values of citizenship,
things like tolerance and patience and understanding
and dialogue and restraint; qualities which we often see missing in today's public life, I think we would
agree. But those are the things that make
constitutional government work. This brings
me right back ate the conclusion to a Virginian
and a Virginia statement. Now I suppose if
I were lecturing in Boston, I'd come back
to John Adams, New York I would quote Alexander
Hamilton. I'm permitted here in Harrisonburg
to quote a Virginian to wrap these remarks...
and it won't be Thomas Jefferson by the way.
Gotcha didn't I! You thought, here's this
UVA guy, he's going to give me... I've heard
so many Jefferson quotes and this guy's going
to quote Jefferson again. It's actually written
into my contract that I have to quote Jefferson
at least once in every public lecture. But
this one is George Mason, whose name has been
given to another public institution in Virginia.
Virginia's Declaration of Rights, I mentioned
that a moment ago, still in Virginia's constitution
it's Article One of our present Virginia Constitution.
And along with all the statements you would
expect: free speech, free exercise of religion
and the like, there's a lovely passage, Mason
wrote it, it was true in his time and I think
it is true today, he said, and I quote: "That
no free government nor the blessings of liberty
can be preserved to any people saved by a
frequent recurrence to fundamental principles."
I love that line: "a frequent recurrence to
fundamental principles." If we can do that,
I think constitutional government is alive
and well. Thank you very much.
Professor Howard thank you so much for that
talk it was a perfect way to launch our vision
series and to celebrate Constitution Day.
I hope all of us have hade a chance here to
think about the impact of the work that you
have done with colleagues all over the country
and all over the world and helping people
to think about these important issues of governance
that will affect not just our generation but
many generations to come what an incredible
gift you've given with your skills and your
talents so thank you so much for the work
you have done. On behalf of James Madison
University I'd like to present you with this
small token of our appreciation and we hope
it will help you to remember this day, a very
special day for us as we launch this lecture
series. Again what a perfect way to start
with you here today to celebrate with you
the values of our Constitution and it's continuing
relevance in our country and the world thank
you so much for being here.
