Scholars debate importance of constitutions

By Tim Michaels

Distinguished professors, academics, and activists participated in a three-day conference at the University this weekend that tackled the question of how constitutions impact nation building and democratic change, adding new insight and thought into a subject that has important implications for the Middle East.

The conference, which was the first major event to be sponsored by the Center for Comparative Constitutionalism, drew guests from varied academic backgrounds, each providing a unique perspective on an assortment of issues concerning constitutionalism.

Sari Nusseibeh, the President of al-Quds University in Jerusalem gave a pointed keynote address on Friday night. He discussed the Palestinian discontent over the relation between the geographic recognition of Israel in its pre-1967 border and the foreclosure of a sovereign Palestine.

The panel on Constitutionalism and Equality included Rashid Khalidi, who taught in the College for 16 years before becoming the Edward Said Professor of Arab studies at Columbia University. Khalidi’s opening speech addressed the history of foreign occupation in the Middle East, claiming that the roots of democracy existed before such intervention and its development was only prevented by constant foreign occupation. Continued intervention in the Middle East would only hinder the constitution-making process, he added.

The panel also included Yael Tamir, professor of philosophy at Tel Aviv University. Tamir examined the debate over equality in the Middle East, stressing that the problem was not a legal matter, but rather one of public opinion. The professor said that the courts currently take too much power in resolving conflicts, while the general population seems to be silent in pushing for a solution.

Although speakers came from a variety of backgrounds, some audience members felt that the viewpoints were biased. “There was a complete lack of balance in the political views of the participants, with only far left and moderate liberals being represented,” said Jonathan Hirsch, a second-year in the college who attended the second day of the conference. “No attempt was made to balance the likes of Rashid Khalidi with someone of even moderate opinions on the other side of the issue, let alone someone possessing equally extreme and controversial views on the other side.”

After a short recess, a panel discussion on Constitutionalism and Liberty concentrated on the economic aspects of constitutionalism and the political culture of Israel. Fania Oz-Salzberger, Professor of Law at Haifa University, discussed the grassroots political culture of Israel. She said that the University’s conference more effectively encouraged positive and groundbreaking discussion on the Middle East than the European conferences because the latter are often bogged down by impassioned political policy concerns.

“For the first time we are able to talk about the state building process, with a feeling that something new is now opening up. This conference gives hope that we are beginning to address the conflict from a different perspective and moving closer towards a solution,” Oz-Salberger said.

The most highly anticipated two speakers at the conference were next on the schedule: the Honorable Albie Sachs, Justice of the Constitutional Court of South Africa, and Gordon Wood, the Alva O.Way Professor of History at Brown University.

Sachs played an integral role in the fight against apartheid in South Africa, and was immensely active in constructing the South African constitution. He discussed the unique role that the constitution making process played in reforming South Africa.

His remarks stressed that constitutions are an integral part of political resolution because they help to protect human rights and resolve political tensions. Sachs’ personal example offered hope that the Israeli-Palestinian conflict could end by heeding the example of other countries, such as South Africa.

“The South African Justices at the conference made a huge difference,” said Cass Sunstein, professor of law, a co-organizer of the conference. “The Israelis admire them greatly, as do the Palestinians, who also identify with them. They were a wonderful bridge.”

Wood gave Saturday’s keynote address, which concerned the origins of the American constitution. He discussed the roots of American ideas that have been widely replicated, focusing on how history has changed our understanding on the constitution. The talk spurred discussion on the American constitution as a revolutionary yet flawed example for current constitution making.

When the formal talks ended, audience members and participants continued discussing the topics for hours afterwards. “Most of the value of the conference came from informal exchanges during meals and in the evening,” Sunstein said. “It was truly extraordinary to see animated and amiable discussions among high-level people from Israel, the Palestinian Authority, Australia, and Germany. Many people suggested that we should have follow-up events and we’re seriously considering that.”

The audience also responded with enthusiasm and debate over the panel discussions. “Examining the similarities rhetoric of international jurists and legal scholars, the rights-oriented aims of their respective constitutions and the practical enforcement of these aims allows one to appreciate the value of, and indeed, the need for, comparative constitutionalism as an essential legal study,” said Kristin Love, a second-year in the college who attended the conference.

The final day of discussions presented perspectives from the Australian and German experiences with constitution building, as well as closing remarks from the co-organizers, Martha Nussbaum, professor of law and ethics in the Law School, and Sunstein.

Nussbaum said that the conference brought new hope to finding solutions to complicated questions. “The conference was extremely successful in establishing common ground over issues of human rights, and in showing that difficult issues can be confronted in a spirit of reason and cooperation,” she said.

Both Sunstein and Nussbaum emphasized the conference’s success in focusing on constitutionalism and in creating a discussion that permitted a disparity of viewpoints while also exploring the possibility of reaching consensus.