Siberian Law, Patagonian Politics

The death of Mikhail Gorbachev and Chilean voters' rejection of an extreme-left constitution led me to reflect on the senior thesis I wrote 23 years ago.

Every Princeton graduate writes a senior thesis, an independent work that represents the culmination of one’s undergraduate studies. Unlike those who go to college “in a Boston suburb,” this is mandatory, not just done by those seeking to graduate with honors. Even though I got no honors—missed it by .02 percent in my overachieving major, the since-renamed Woodrow Wilson School of Public and International Affairs—my thesis was a finalist for a departmental award. More importantly, the feeling of satisfaction from having completed a significant work of original social science and applied political theory has stayed with me all these years, and has informed my study of legal institutions and constitutions that has become my life’s work.

In college, I became a “comparative transitologist,” studying transitions from authoritarian rule in that auspicious late-90s time that was the “end of history”: democracy and market economics had won! I majored in the Woodrow Wilson School because I was interested in interdisciplinary work—I ended up taking courses in more than a dozen academic departments—and wanted to pursue the applications of all that understanding, not just pursue knowledge for its own sake.

For my senior thesis, I wanted to study two areas of the world that had been undergoing significant change in recent years, Eastern Europe and Latin America. Having been born in Russia and studied abroad in Argentina—and, more importantly, speaking both Russian and Spanish—I thought that comparing those two countries’ institutional reforms, with new constitutions in 1993 and 1994, respectively, would be just the ticket. My faculty supervisors agreed, so I got funding to spend a month each in Moscow and Buenos Aires, interviewing constitutional lawyers, academics, and politicians. It was a remarkable experience, culminating in Siberian Law, Patagonian Politics: Evolving Constitutionalism in Russia and Argentina.

With the recent death of Mikhail Gorbachev, who inadvertently set in motion the demise of the Soviet Union and rise of new conceptions of freedom and rule of law that I ended up studying, I got to thinking about the lessons I learned from my thesis. When Chilean voters loudly rejected a constitutional replacement that would’ve taken the most advanced Latin nation back to Allende-style socialism, it made me think even more that history doesn’t repeat itself, but it sure rhymes.

I’ll likely have more commentary on these developments in future posts, but for now I present the conclusion to my college senior thesis, completed in partial fulfillment of the requirements for the degree of Bachelor of Arts for the Princeton Class of 1999 (footnotes omitted, and getting rid of the second space after a period because, after all, we now write in proportional fonts). Although I hadn’t reread it in many, many years, most of it still strikes me as correct in its diagnoses, albeit some of it is naive—I was 21 when I wrote this—and of course fails to predict certain key developments. It also serves as a wistful reminder of paths not taken. If I get a positive response, I may post the substantive chapters leading up to this finale.

If this is democracy, what’s dictatorship?

—graffiti on a fountain by the Argentine Congress

All power to the Soviets!

—graffiti on a bus stop by the Russian Parliament

Russia in 1991 and Argentina in 1983 got fresh starts at constitutionalism, an opportunity that a country does not receive often and should not take lightly. Russia threw off over 70 years of an all-controlling communist autocracy that were preceded by centuries of one of the most rigid monarchies in European history. Argentina ended seven years of brutal dictatorship that were preceded by many tumultuous decades of the populist corporatism, limited democracy, and military rule that still afflict many post-colonial nations. Both countries were vastly underdeveloped in the legal and political sense, let alone economically. Despite their distinct histories and brief flirtations with the type of transformations that the West was going through as late as the 1950s, Russia and Argentina took their rightful place among the “transition” nations. Though the countries are about as different as any two can be, their transitions, when divorced from national characteristics and traditions, yield experiences with constitutionalism that are more similar than casual observation would suggest. By looking at their distinct pasts, somewhat similar presents, and divergent prospects for the future, we can identify key factors in the constitutional development of transitions.

The Basic Comparison

My approach to the study of constitutionalism, despite its methodical comparisons of evolving political institutions, legal texts, and case studies, is not wholly credible in the eyes of Russians and Argentines. Russians naturally assume that their country is unique in world history, incomparable to any other in any respect other than at a superficial level. Even without the Soviet republics, Russia is the velikaya dierzhava (great powerful homeland), a multi-ethnic, resource-rich giant stretching across 11 time zones. It cannot possibly have anything to gain from analyzing the experiences of fellow Slavs in Poland and Bulgaria, let alone the “third world” countries of Latin America. Argentines, while gratified to see their country mentioned alongside Russia, think of this comparison as an opportunity to gain honorary European status—and share the prestige of a former superpower. Argentina, now a Latin American leader in democracy and political stability, simply needs to make minor corrections to leapfrog back into the “first world.” The country’s Western models are too far removed from developments in post-Communist states and its transition is less difficult legally and politically. Both arguments hold some water—and it is difficult to talk about constitutional issues with educated patriots in both places without omitting the comparative aspect.

This thesis aimed to remove such considerations as language, culture, mentality, ideology, climate, and geography when making comparisons—or to attribute certain institutional differences solely to these non-constitutional factors. This is, of course, an academic exercise, for the histories of the two countries cannot be ignored, and it is easier to understand current authoritarian tendencies if these have been the formal rule in the past. I won’t repeat here all the points made during the preceding chapters, but have included brief summaries of the issues often raised in reading the Russian and Argentine constitutions and examining their political institutions in practice. In the end, the behavior of political and legal actors is quite similar in both countries, but in Russia’s case this is due more to flaws in the constitutional design of constraints, and in Argentina’s to practical discretion resulting from the weak implementation of such constraints. Both countries also share deficiencies in the maintenance of economic and property rights, a legal structure necessary for stable markets and growth. Each country’s case is unique in the world of transitology—Russia perhaps more so—but this is not to say the we cannot learn valuable lessons in what works and what does not when it comes to framing a state.

Balance of Powers

Russia and Argentina are indeed super-presidential republics, a form that evolved from the circumstances of transition and prior history. It should be noted that strong executive powers, whether by law or by fact, are needed in time of crisis, and they served both countries well when used decisively during their times of transitional crisis. If Boris Yeltsin had not stood on the tank in August 1991, the Cold War might still be on. If he had not brought the parliament to its knees in 1993 (though the bloodshed was unnecessary), Communists might now be in charge of a parliamentary autocracy. If Raúl Alfonsín had not kept his eye on the democratic prize in 1986-88, Argentina might have rejoined the shrinking list of military junta-led republics. If Carlos Menem had not taken bold steps to bring financial stability in 1989-91, it would now be a country awash in socio-economic ills much like essentially unreformed Brazil. Having said this, it’s clear that what was essential ten or even five years ago isn’t even adequate today.

In Russia, Yeltsin has been losing credibility steadily since the Chechnya intervention, with a slight upturn in approval ratings surrounding the 1996 presidential election (when the majority simply voted anti-Communist). Nineteen ninety-eight was an annus horribilis if there ever was one, with the president firing the prime minister twice in a five-month period, the second time just as the country slid into a financial abyss. Chapter 4 describes the constitutional ramifications of the latter, but basically the country has come to a tupik, or dead end, requiring serious constitutional rearrangement now that the economy has returned to its normal state of non-urgent stagnation or contraction. The presidency is a badly damaged institution, and will likely be reformed once Yeltsin leaves office. In any case, Russia must, at all costs in temporary political unpopularity, avoid becoming an Upper Volta with nukes, and part of this is constitutional.

In light of the problems described above and in Chapter 2, remembering the informal power-sharing resulting from the 1998 crisis, and recognizing that the judiciary will not be in the position to become a strong branch for years to come (and would not be accepted as such even if feasible): 

1. The constitution must be amended to curtail presidential power and transfer it to the legislative branch, the government, and the regions;

2. The government must become more accountable to the legislature, with confirmation of individual ministers and an end to the prohibition on concurrently holding legislative and ministerial rank;

3. The Federation Council [upper house of parliament, like a senate] must be formed from members elected specifically for that function, with regional executives better able to deal with the problems of their provinces at home;

4. The Duma [lower house] must gain the power of the purse in conjunction with the government, for this is the way both presidential and parliamentary systems work best; and

5. The judiciary must be harmonized, with fluid interaction between its three systems, so that it can eventually assume its rightful place as a third equal branch.

In Argentina, Carlos Menem has also been losing credibility, but this is mainly personal. His ability to manage the economy and maintain excellent international relations has held him in good stead despite corruption and flagrant abuse of power. His rule by decree appears at an end, and he is now most concerned with staying a national political figure—if not as president of the country, than at least of his party. He has done far less damage to the presidency as an institution than Yeltsin, and indeed the Argentine constitution is essentially sound on balance of powers (the one exception being the vague language surrounding the decree power). Argentina is firmly on the road to political stability, and it certainly does not need talk of reform five years after a comprehensive evaluation and amendment of the country’s constitutional direction.

Based on the above diagnosis of Argentine hyper-presidentialism and on the analysis of Chapters 3 and 5: 

1. The legislative and judicial branches must stop the vicious cycle of partisan politics and implement existing constitutional means to check the executive;

2. The cabinet must become more accountable to Congress, with confirmation of individual ministers along the U.S. model;

3. Congress must become more efficient in debating presidential decrees and drafting laws that would otherwise be passed by decree; and

4. For all his beneficial policies, Menem must not under any circumstances be allowed to remain in office past the end of his term in December 1999.

Russia and Argentina may present the same symptoms, but their diseases—that which makes them “supra-presidential”—are different, the former more institutional and the latter practical. Future experience should make this distinction clearer, but regardless both countries face long-term rule of law challenges relating to weak civil society, immature political culture, and a judiciary dependent on the other branches.

In 1998-99, it seemed like a new dawn over the Kremlin. (Photo by Vitolda Klein.)

Rule of Law

While the balance of powers institutionally contributes a great deal to the rule of law, there are other important factors, both formal (such as constitutional design) and informal (such as visible police presence on the streets). In Russia, rule of law has in many senses deteriorated since the fall of Communism, and certainly in the time since the heady years of the First Republic. While not discussed in this thesis, organized crime is now responsible for up to half of the Russian economy, with untold profits from illegal activities. In Argentina, petty crime has slowly increased after a longtime drop as structural economic displacement stubbornly remains, and corruption pervades even the national government and federal judiciary. Still, these are at far lower levels than in Russia—which annually competes with Nigeria for the dubious title of most corrupt country in the world—and, more importantly, are much improved from the Alfonsín and early Menem years. Both countries still have far to go to approach North American standards, but Argentina is certainly competitive with Italy and Spain (from which most of its population emigrated).

Russia has a huge problem in that its people have learned out of necessity to live in blatant disregard for the law. During the Brezhnev years, many prospered (by Soviet standards) by living na levo, or “to the left” of official authority. With Soviet remnants in federal and regional legal codes, many have simply continued to behave the same way. Even new Russian laws are written to be broken, with the punitively high rates of taxation the most often cited injustice perpetrated on a populace desiring to finally profit from its own labors. Adding insult to injury, the ineffectiveness of this taxation machine to collect sufficient revenues further reduces badly needed funding for crime prevention, law enforcement, and the judicial system. It is a banal fact that Russia simply cannot afford an effective judiciary. If there is one obvious recommendation an impartial observer can make in addition to the other sections in this conclusion, it is this: The Russian taxation system—and other business regulations—must be radically altered to promote economic growth that produces revenue for all concerned, including the state.

Argentina has less of a problem with giving incentive to illegal behavior, but its citizens share an “over-skepticism” with the legitimacy of laws and law enforcement agencies. There is a lack of respect for legal and political authority bred from a history of corruption and inconsistent application of the law. Since the 1994 constitutional reform and coincident good economic times (for the majority), however, respect for the constitution and political institutions—if not for politicians—has grown, and it seems we are entering a new and uncharted era that is slowly but surely consolidating the rule of law. It is still too early to tell whether improvements in Buenos Aires will rub off on less-developed provinces, but much will depend on the circumstances of the 1999 presidential transfer and the example the next government sets. And people still feel in danger from crime, so police action, organization, and funding are critical areas for the next decade. One suggestion not explicitly mentioned elsewhere in this thesis is the following: Everything possible must be done to ensure that the trend to more politicians, judges, and police chiefs with “clean” images and fresh ideas not be interrupted for short-term political gain, and this depends on both the actors involved and the will of the people.

Aside from the above structures and policies, and other factors discussed later in this conclusion, one serious concrete challenge, especially for Russia, is that rule of law cannot develop very well without firmly secured economic and property rights.

Economic and Property Rights

While the U.S. Constitution is designed with Lockean inalienability of property in mind, most countries—including those like Russia and Argentina that model themselves to an extent after the United States—do not view property rights to be as sacred.  Indeed, such “negative” economic rights are often superseded in times of “emergency” or “state necessity,” which occur quite often in developing countries. Further, as described in Chapter 1, there is a tendency to include “positive” socio-economic rights, partially out of a sense of distributional justice and partially as a goal for which to strive. As I have argued previously, the transient nature of the former protections and the limitless aspect (and timeless impracticality) of the latter detract from the legitimacy of the constitution as a whole.

The inclusion of negative economic rights in the Russian constitution represents a clean break from the socialist purpose of previous Soviet versions. The provision of these protections is an important step toward the creation of stable and permanent private property rights in a country lacking a tradition of affording such rights to its citizens. Similar guarantees in the Argentine constitution would appear to establish a legal scheme that prevents state property seizures and other past abuses. An analysis of certain constitutional clauses, however, suggests that this may be more of a theoretical exercise than a practical framework for the development of a free market economy in Russia and the advancement of inclusive capitalism in Argentina. There are three main points to be made in suggesting reform of constitutional structures in this area.

First, the ambiguous language of the negative economic rights provisions of the Russian Constitution (Russian Articles 34-36) may allow the legislative and executive powers to severely restrict and even violate these rights as they are understood in free market systems. In light of the Soviet hostility to such rights, and the serious opposition in the Duma to passing a private land law—and drafting a crucial Third Part to the Civil Code—their status appears suspect. Accordingly, the “property rights articles” should be amended so as to eliminate qualifying language that effectively reduces them to a “sub-constitutional” level, subject to executive and legislative restrictions. Until then, the vitality of economic freedoms, enforceable contract law, and the entrepreneurism that flow from them will remain hindered.

Second, the inclusion of affirmative economic rights—such as education, housing, and employment—in both constitutions operates to limit negative rights through their implicit socialist purpose. The enumeration of such entitlements is quite expansive (Russian Articles 37-43, Argentine Article 14bis and 41), and their adequate enforcement requires extensive governmental intervention into private markets. At the same time, the inadequate protection of such rights may lead to increased governmental indifference to more fundamental civil and political rights. Both results conflict with the objectives of strengthening republican government and the free market economy. Accordingly, the “socio-economic right articles” should be amended so as to exist as a “mission statement” for the government to achieve, rather than to continue to exist as guarantees or rights. Using the American constitutional experience, greater stability will be achieved if emphasis is placed on the protection of more fundamental personal rights, and if positive economic entitlements rest within the purview of the legislature, rather than existing as constitutional rights.

Finally, to return to a theme flowing through the entire thesis, although both constitutions purport to establish a republican system based on the separation of powers, they have clearly not done so. The Russian president legally retains particularly broad powers, and the Argentine president lives in the “gray” area of the law when not violating the constitution outright. Such a concentration of power within one branch of government necessarily has a negative impact on the incentives and rational expectations of individual economic actors domestically and abroad.  Accordingly, re-balancing powers and enforcing existing checks—as described in a previous section—is imperative for the development of an attractive economic climate, as well as political stability. The potential for authoritarian abuse or arbitrary rule means that the modicum of private property protection is inherently unstable if it can so easily be discarded or ignored.

Beyond economic rights, there are a host of issues directly or indirectly affecting constitutionalism that this thesis has not sufficiently addressed. This conclusion can only hope to raise them and suggest the general direction of development that would advance constitutionalism and the stability of political institutions.

Other Important Issues

Federalism and center-periphery relations, one of the thorniest challenges faced by both the Soviet Union and the early Argentine Republic, continues to be a painful reminder in the Kremlin and the Pink House that life exists beyond Moscow and Buenos Aires, respectively. Yet Russia and Argentina have always been unbalanced politically and economically. Significantly, the cities of Moscow (and St. Petersburg) and Buenos Aires maintain special status within their countries’ federal structures, and about 80 percent of foreign capital entering the countries goes to these capitals. With differences in economic and social development between the metropolis and the hinterland that cannot be underestimated, Russia and Argentina are destined to maintain two nations within themselves, separate and unequal. A decade of reform cannot undo centuries of neglect, exploitation, and a generally “false” federalism, but innovative solutions to foment new centers of economic and political power do exist, and this is one area where the countries’ constitutions are well-balanced and flexible.

Boris Yeltsin has been moderately successful at using the flexibility accorded him in this area by negotiating treaties with individual treaty subjects, but he has also faced the gravest constitutional crisis of his presidency in Chechnya—a breakaway republic where guerrilla warfare and terrorism continue. With greater federal control over their provinces, Raúl Alfonsín and Carlos Menem have mainly had to deal with the more “advanced” problems of vast disparities in the provision of government services and tax transfers. The one major federal conflict in the past 15 years occurred in 1992, when, backed overwhelming popular support, Menem intervened in the backward province of Catamarca to rectify a blatant miscarriage of justice. Indeed, the disparities in legal systems and resources is the simplest problem to identify, if not to overcome. Russia and Argentina must work to harmonize their regional courts, perhaps under direct supervision of the national justice apparatus, for if the federal government has a clear constitutional role, it is in ensuring that citizens enjoy the same rights everywhere.

The party systems of both countries are hopelessly inadequate—harmful even—to the development of constitutionalism and stable political institutions. The Communists remain the only true party in Russia, as all others represent nebulous groups of activists, a small cadre of intellectuals, or a self-serving demagogue. The Duma is hopelessly fractured, and a parliamentary system given present conditions would result in more changes of government than those in Italy or Japan. The Justicialists and Radicals in Argentina have the opposite problem, with overly rigid structures that hold together strange ideological bedfellows. Third parties cannot last under these terms, and the left-reform FREPASO (the current alternative), which never advanced from a rump group of Buenos Aires supporters, has indefinitely allied itself with the Radicals. Unfortunately, this crucial aspect of political life does not appear to be improving in either country, due to electoral laws, traditions, and in Argentina’s case, constitutionally mandated state funding of established parties (via the newly created Article 38).

Russia would best be served by the formal aggregation of similar interests into a few dominant meta-parties, that would eventually connect with a nascent civil society to create “normal” parties by Western standards. For example, there could be a socialist/agrarian “Left” Party, a reformist/neo-liberal “Center” Party, and a conservative/religious “Right” Party. This would enable a more balanced constitutional regime, for the legislative branch would lose its dangerous volatility. The formalization of existing coalitions in Russia, by stricter electoral laws and executive suasion, would promote a mainstreaming of each line of argument, eventually narrowing the political spectrum to one where both pure communists and fascists would be marginalized.

Argentina, on the other hand, would benefit from a loosening of the major parties’ control on the national political space. Many provinces have thriving third parties that represent ideologies (like old-line socialism and traditional conservatism) with no outlet in the PJ and UCR, or with province-specific interests. In Buenos Aires—and therefore in national media campaigns—party machines control elections, and debate is limited to superficial posturing and generic slogans. People join and support parties based on anything other than ideology, which creates obvious problems when trying to draft coherent policy. The encouragement of a political realignment in Argentina by removing state funds and loosening electoral laws while concentrating on fraud prevention and full transparency of campaign operations would revitalize a stagnant party system and make elected officials—including the president—more accountable, thus reinforcing constitutional checks.

Culture, mentality, and tradition are the sorts of “soft” factors that often get neglected by institutional analyses, though they are fundamental to understanding politics and the heart of a country’s constitutionalism. While there is some truth to charges that Russians and Argentines will not have anything other than strongly authoritarian government—whether under a constitutional or ad hoc regime—due to ingrained preferences for order and “manly leadership,” it would be patronizing to downplay the popularity of a balanced political system allowing prosperity and stability. The rub lies, as usual, in achieving such a goal, a task that alas must be accomplished concurrently with the changing of society’s notions regarding its relationship to the state. This is where civil society must come in, to fill the void that a reconfiguring state leaves when it retreats from many avenues of life. It is obvious that such changes in political culture and civil society take generations to develop, and there is little policymakers can do to influence them directly. As someone who believes strongly in the “moral educative function of law” and the importance of getting institutions right, however, I have proposed improvements in these areas. The rest depends on people themselves, and on organizational advice from outside consultants.

The Casa Rosada really is pink! (Photo by Gustavo Sánchez.)

Foreign Assistance and Policy

While economically both countries’ interests are well diversified, as is the investment flowing into Moscow and Buenos Aires, most political advice and technical support has been apportioned by the U.S. and its agents. More so in Russia—for understandable reasons—E.U. nations like France and Germany have also tried to assist post-authoritarian transition. Whether direct government assistance or NGO work to strengthen the political system and civil society, however, Americans have led the charge in “making the world safe for democracy.” There has been more room to influence political development in Russia than in Argentina, for good and not-so-good outcomes. Especially in the last five years upon which most of this thesis is based, Americans have tried to imprint their own political and legal notions into the quite foreign Russian landscape, while leaving Argentina alone to adapt its well-developed (if frail) institutions.

Soon after the dissolution of the Soviet Union, Western governments began planning strategies for ensuring a smooth transition into democracy and prosperity for its fledgling republics, and especially Russia itself. Even beyond the high-level diplomatic exchanges and presidential summits, the National Endowment for Democracy (NED) began to implement a wide range of programs whose aim it was to transform our old enemy into a stable and prosperous ally. Starting in 1991, NED, through its core grantees, the International Republican Institute (IRI), National Democracy Institute (NDI), began working with fledgling political parties, elected officials, and civic organizations in Russia. The U.S. Agency for International Development (USAID), meanwhile, began in 1994 to work on the development of legal and political structures, and rule of law generally. Interestingly, before the fall of Communism, USAID was not in the “democracy business,” and its authorizing directive clearly states that the agency is “not to change Russia’s natural political development” in ideological terms.

Other organizations partially funded by USAID are the Russian-American Judicial Partnership (RAJP) and the American Bar Association’s Central and East European Law Initiative (ABA-CEELI). These projects are training the judges and lawyers who are—in stark contrast to Argentina—vastly unprepared, often to the point of incompetence, for the rigorous treatment of the law demanded by modern constitutionalism. As the RAJP’s deputy director lamented, “it is traditional for the top Russian law school grads—after curricula more ideological than legal—to join the procuracy, for the mediocre to become civil lawyers and public defenders, and the bottom-dwellers to become judges.” The goal of such programming is to create an independent judiciary and procuracy, and a strong, well-financed, self-monitoring justice system, as well as to improve the commercial courts that welcomed foreign technical assistance before all others. These are all long-term projects, of course, whose fruit may not be borne for many years after NDI, IRI, and USAID leave Russia (NED’s mandate in this area, unlikely to be extended, runs out in 1999-2000). The United States and other Western countries can do little more with government policy in Russia than maintain strong diplomatic relations while encouraging informal links from national and international NGOs.

In Argentina, the story is much simpler. Other than international observers sent to monitor the 1983 elections, the country has been virtually free of political consultants (though not economic ones). Lawyers, judges, and politicians are quite competent at what they do, relying on decades of experience under governments that, while harming constitutionalism, did not significantly change legal processes. Corruption is a different kind of problem, of course, but one whose solutions will have to emerge from within. Argentina does not need outside political assistance, other than maintaining free trade opportunities and other ties that allow structural pressures (from globalization) to enter the darker recesses of outmoded state bureaucracy.

Not surprisingly, the onus is back on Russia and Argentina themselves to improve their political institutions and allow a healthy constitutionalism to flourish.

A Last Word on Siberian Law

In many ways, Russia is no longer a riddle, a mystery, or an enigma. The West understands the magnitude of evil that its previous empire represented. It also is beginning to understand that the main similarity between the Soviet Union and Russian Federation are the people running things, but this will obviously change with time. At the same time, Russia has a clearly delineated government, whose members generally fulfill their constitutional responsibilities. Constitutional reforms are necessary to prevent the lawful empowerment of a despot less benign than Yeltsin, but deep economic reforms are even more pressing. There is no reason—barring another political crisis—that both cannot be undertaken simultaneously, but there is reason to fear that Russia is caught in a vicious circle where structural economic reforms are impossible for institutional reasons and vice versa.

There remains one major puzzle about Russia, however, and that is how a nation so rich in culture can be so poor materially. This is a country, after all, that has given birth to a vast amount of humanity’s greatest art, literature, and music, that produces the world’s finest scientific minds. Yet this same country cannot feed its people despite abundant resources and cannot sustain a humane form of self-government despite historically high levels of education. The latter is the sticking point, for Russia’s repeated “times of troubles” are only tangentially related to economics. Unfortunately, until proven otherwise, there seem to be elements in the national psyche—based in Orthodoxy and elsewhere—that prevent such a talented people from organizing itself politically. One cannot but feel sorry for the Russian people while admiring their tenacity, having endured centuries under the most brutal rulers—in, lest we forget, the worst of climates.

Russia is at a crossroads, and indeed has returned to a set of choices that have shaped each period of its history. Will the country look West like Peter the Great or will it turn inwards? Will it remain a multi-ethnic empire or will it break apart (peacefully or not)? Will it ever live up to the high moral standards of Dostoevsky, Tolstoy, Chekov, and Solzhenitsyn? In the short-term, Russia can expect more uncertainty, political wrangling, and general lawlessness. Until and unless the man who succeeds Boris Yeltsin in 2000 succeeds also in changing “the way [they] do politics,” Russia cannot but expect stagnation, at best. It will not be until that man’s successor, however, that we shall see if democracy has finally been consolidated, or if that is even an appropriate form of government for Russia. After all, that people believe in and trust a democratic system is just as important as the design of republican institutions, and Russia is presently lacking both.

A Final Comment on Patagonian Politics

Long before the oil shocks, debt crisis, Alfonsín’s financial mismanagement, and the Tequila Effect, Argentina began suffering from an inflation that had little to do with economics. This is legislative inflation, an excess of law-making leading to positive declarations and regulations where social norms would otherwise be sufficient.  Unfortunately, the iron laws of economics hold in political science, and legislative inflation leads to a devaluation of the law. Ultimately, when legislators think themselves the existential creators of positive law, the legitimacy of the constitution is placed in doubt. If the constitution tries to outline an impossible utopia, where all people get food, shelter, health care, environmental protection, and property rights, freedom of contract, and equal treatment under law, it loses salience and respect. If it were otherwise, Brazil, with its 400-plus-page constitution, would be the most stable country on earth, while the United States would be the epitome of anarchy. Legislative inflation will be an increasing problem for constitutionalism as the decretazo wanes.

Argentina has an excellent opportunity to go the way of the West and join the “first world” for which its complex psychology yearns. On the constitutional side, it will take courage, discipline, and vision. Given the country’s propensity for following strong visionaries, an Alfonsín-type visionary with Menem-esque governing abilities would be perfect. This is not coincidence, for in studying Argentine history, one often wishes for a president combining the best characteristics of the Radicals and the Peronists. Unfortunately, this will not happen in the near future, as 1999 is already seeing a bitter election campaign between Buenos Aires Mayor Fernando De La Rua of the Alliance and the two-headed Peronist Party of Carlos Menem and Buenos Aires Governor Eduardo Duhalde. Even if the political scene does not play out optimally, however, and none of my italicized conclusions are followed, Argentina is more sound institutionally than many European republics. I would attribute this to its still-heavy reliance on the U.S. constitutional model, for which the country can thank the good Dr. Juan Bautista Alberdi and the Golden Generation.

Into the 21st Century

With different pasts and different futures, the present convergence of the constitutional paths of Russia and Argentina appears to be an aberration. Russia has serious flaws in the design of its political institutions, with excessive presidential power and subordination of the judiciary. Argentina faces serious challenges in preventing its political institutions from being subsumed by personal ambitions and party rivalries. Both require solutions that demonstrate sound constitutional principles and a profound understanding of the particular circumstances of each country.

Returning to first principles, the complex challenges of a modern world demand the simplest social charter possible, not one where every aspect of society is spelled out. Legislators and other political actors used to have the attitude that law pre-existed in nature, that government is to be tolerated to preserve man’s freedom but mistrusted for its monopoly on legal coercion, that republican democracy is the worst form of government except all others. Now man is the source of law, government ordains basic rights, limiting freedom for man’s own good, and temporary majorities act without thinking about the hidden consequences of their laws. Argentina is certainly not the worst in this tendency, but it is clear that the spirit of its founding document has changed in this direction. Russia has unfortunately adopted this positivist ethos from its constitutional start, and its incredibly diverse society—emerging from centuries of oppressive hardship into free hardship—is now based on a fairly complex charter with increasingly convoluted federal legislation. Both countries can reverse this trend once their politicians gain experience and their people a more advanced political culture.

Problems with balance of powers, rule of law, competing rights, and other constitutional issues will not be resolved quickly or easily. As [Argentine political philosopher] Carlos Nino writes,

there is no exact science available to resolve the tensions among rights, democracy, and law.  The challenge for all those committed to the ideal of constitutionalism is to balance these three elements when they conflict. By seeking this balance, we seek to reach the threshold where vicious, debilitating, and mutual antagonisms convert themselves into virtuous, fortifying, and perhaps liberating support.

The future makes no guarantees, but it would seem that the 21st century could not do worse than its predecessor in finding humane methods of social organization.  Indeed, as the millennium draws to a close, we can say with confidence that human civilization—at least in non-religious terms—is in better shape than it has ever been.

To paraphrase my favorite Princetonian, if men were angels, we would not have a conception of “constitutionalism.” If angels ruled over men, we would not need one.  Since neither is the case, we had better find good thinkers to contain our natural leaders. Russia and Argentina could use a James Madison.