On 8 November, Constitutional Transitions director Sujit Choudhry was one of nine speakers to address a symposium hosted by the University of California Hastings College of the Law, entitled “The Arab Spring and the Future of U.S. Diplomacy.” The event was held in memory of U.S. Ambassador Christopher Stevens who was killed in Libya last year. The symposium was divided into three panels, confronting the Responsibility to Protect, Constitutional Transitions, and the Future of U.S. Diplomacy respectively, followed by a keynote address by Thomas Shannon, Jr., currently a Senior Advisor to the Secretary of State. A video recording of the event is online here.
Choudhry’s speech, “Arab Awakening Constitutionalism: Revolution, Retrenchment or Renovation?,” explored the shift which has taken place in the Arab region, where states that ignored the “emerging global constitutional conversation” for decades have now placed constitutional design at the center of their political debates. The presentation advanced three central claims: first, that political inclusion produces constitutional stability; second, that constitutions are social contracts among the people and pacts among political elites; and third, that we must be aware of the risk of young democracies falling into democratic authoritarianism.
In his first claim, Choudhry returned to the primary purpose of constitutions as a means to resolve political disagreements through regularized procedures and the rule of law. Accordingly, a broad cross-section of society must be represented in any constitutional drafting, with their support guaranteed by measured and iterative processes, and super-majority voting requirements.
Turning to his second claim, Choudhry examined contrasting views on constitution drafting, upholding both while rejecting any simple dichotomy. Constitutions can be viewed as social compacts whereby the people decide how to organize themselves politically. They can also be seen as bargains among political elites seeking to maximize their own power. Rejecting normative claims, Choudhry cited the importance of support from both citizens and elites, noting that exclusion of either group could result in instability.
Finally, Choudhry considered the issue of democratic backsliding, the notion that constitutional democracy can be eroded from within by the abuse or manipulation of law by an elected group seeking to eliminate checks on its authority. Responding to this risk, he continued, requires establishing norms of permitted and prohibited government actions, and creating consequences to incentivize governments to avoid the temptation of backsliding.