Dec. 7, 1995
Vol. 15, No. 7

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    Center helps Eastern European countries shape constitutions

    An unusual thank-you note recently landed on the desk of Lawrence Lessig, Professor in the Law School:

    "Through your generous support, world achievement in the field of constitutional law was successfully incorporated in the development of the draft of the Constitution and its further evaluation." The note is signed by Eduard Shevardnadze, president of the Republic of Georgia.

    Lessig, a co-director of the Center for the Study of Constitutionalism in Eastern Europe at the Law School, worked with several visiting faculty members for three years to help the new Republic of Georgia draft its constitution.

    "It's a good framework within which they can develop traditions of constitutionalism," Lessig said. "But it's not the sort of document that assures its own success."

    The success of Georgia's constitutional goals depends heavily on Shevardnadze, Lessig said. "The test will be his willingness to restrain his own power."

    Georgia's constitution is not the first in Eastern Europe to be facilitated by faculty members at the University. The Center for the Study of Constitutionalism in Eastern Europe was formed at the Law School in 1989 by Stephen Holmes, Director of the center and Professor in the Law School; Cass Sunstein, the Karl N. Llewellyn Distinguished Service Professor in the Law School and a co-director of the center; Wiktor Osiatynski, Visiting Professor in the Law School and professor at Central European University; and Jon Elster, then the Edward L. Ryerson Distinguished Service Professor in Political Science. Since that time, faculty members have worked with many of the countries in Eastern Europe, helping them as they developed their constitutions.

    The organization's scholars focus on issues of legislative and executive relations and presidential powers, ethnic and national conflict, privatization and private property, individual rights, election laws and party formation. The center has offices in Chicago, Budapest and Moscow, and is funded in part by the John D. and Catherine T. MacArthur Foundation, the Ford Foundation and the Soros Foundation.

    Lessig and visiting Law School faculty members Andras Sajo of Central Europe University in Budapest and Alexander Blankenagel of Humboldt University in Berlin became involved in the development of Georgia's constitution in December 1992. Lessig met with representatives of the Georgian constitution-drafting commission at a conference in Budapest. One of the outcomes of that meeting was to send several young attorneys from Georgia to Chicago to study constitutionalism.

    Five young attorneys came to Chicago in March 1993 for a week of intensive study with several University faculty members. Lessig, Blankenagel and Sajo then spent well over a year drafting documents and engineering compromises between the president, the parliament and the attorneys who had studied at Chicago. In October 1994, a group of 10 Georgians chosen by Shevardnadze to represent the various factions came to Chicago to write a final draft.

    A seminar room in the Law School became the drafting center for the Georgian Constitution. Two computers were set up for the writing of the document -- in Georgian on one and in English on the other. Lessig and visiting faculty members, including Herman Schwartz of American University, helped the 10 delegates consider each provision of the constitution and decide how it should read.

    Lessig said the faculty advisers worked to facilitate the discussion, not to encourage the group to devise a constitution that looked like America's.

    "Many times they asked us, 'What should we do?' " Lessig said. "We kept saying that wasn't our decision. We respected Star Trek's prime directive: We were there to provide a context and help facilitate, not to write the document."

    In fact, Lessig said, there was some tension in Georgia about Chicago's involvement. But the strict neutrality of the organizers gave the process credibility, he said.

    The Georgian Constitution has some provisions that do look like the U.S. Constitution, Lessig said. The document specifies separation of powers, with a president, courts and a parliament. The parliament is a single body now, but it will be split into a bicameral legislature later on. The draft initially brought to Shevardnadze included a weaker presidential role than what the leader preferred -- and eventually got -- in the final document, which was ratified by parliament Aug. 24, Lessig said.

    Georgians have been concerned, he said, about repeating the patterns of their communist past. They are afraid of "people who speak above the law," Lessig said. "They are afraid of creating a person who will claim a sovereignty over the will of the people."

    Being a strong president who doesn't abuse his power may be Shevardnadze's greatest challenge, Lessig said. "I think he will set a precedent for restraint."

    Lessig said the letter of thanks from Shevardnadze took him by surprise.

    "I would think he has a lot to do," he said.

    -- Catherine Behan