“Constitutionalism in Ukraine” by David C. Williams, Center for Constitutional Democracy 1. Why do constitutions and constitutionalism matter? 2. Why, if Ukraine has succeeded in becoming an electoral democracy, has it not succeeded in becoming a constitutional democracy? 3. And what is the way forward?

1. CONSTITUTIONALISM IN UKRAINE
DAVID C. WILLIAMS
CENTER FOR CONSTITUTIONAL DEMOCRACY

2. THE THREE
QUESTIONS
1. Why do constitutions and
constitutionalism matter?
2. Why, if Ukraine has succeeded in
becoming an electoral democracy,
has it not succeeded in becoming
a constitutional democracy?
3. And what is the way forward?

3. WHAT DO
CONSTITUTIONS
DO?
1. They create and structure a
government.
2. They place limits on a government.
3. They are entrenched.
4. They are supreme over all other
laws.
5. They are created by the people.

4. POPULAR
SOVEREIGNTY
 #5: The idea that the people make the
constitution—is the foundation for all the
others.
 #1: The people choose the type of
government that they want.
 #2: They then put limits on it, so that it will
not become oppressive.
 #3: They then entrench it, so politicians
cannot change it.
 #4: They then make it supreme, so
politicians cannot pass contrary laws.

5. INTERNAL LIMITS
 The structure of the government itself limits
governmental actors, limits that are internal to the
structure of government:
 Government actors must conform to the
structure created by the people,
 For example, elected politicians have a limited
term, and after that, they must compete for re-
election;
 And government power is divided through
checks and balances, so that no-one becomes
too powerful.

6. EXTERNAL
LIMITS
 But constitutions also put outside
limits on governments:
Individual rights,
Policy prescriptions.

7. CHECKS AND BALANCES
 The master concept in constitutionalism is not democracy or human rights; it is
checks and balances.
 Power tends to corrupt, and absolute power tends to corrupt absolutely.
 So constitutions divide power to make it safer.
 Democracy is a type of checks and balances; it gives the people power to check
the elected officials.
 Human rights is a type of checks and balances; it protects a sphere into which
the government cannot intrude.
 But there all different types of checks and balances schemes.
 Each country must choose the right type for itself.

8. DOES THIS SOUND FAMILIAR?
 Sometimes countries hold free and fair elections, over and over.
 But over and over, the people feel that the politicians are self-serving and
corrupt.
 They fail to deliver successful policies that improve the lives of ordinary
people.
 Sometimes, even when the people turn out the incumbents and elect political
outsiders, they discover that the new politicians seems much like the old
politicians.
 So what is wrong?
 Often, the problem is that the country has electoral democracy but not
constitutional democracy.

9. ELECTORAL
DEMOCRACY
 Elections are never enough to
produce just or effective
government.
 We also need constitutionalism, a
sense that government power is
limited and divided into a system
of checks and balances.
 Without constitutionalism,
elected leaders commonly
become despots.

10. TWO CAUSES
 Sometimes the country has the wrong system of checks and balances—> for
example, an over-powerful executive president.
 But sometimes it has not become a pervasively constitutionalist country
meaning,
1. The people have not embraced or do not understand the idea of checks
and balances,
2. The people do not view the constitution as their own, a product of their will
and deliberations,
3. So the politicians do not feel constrained by a rule of law culture.

11. CONSTITUTIONS
AND POPULAR
PROCESSES
 By definition, constitutions must be the
product of popular processes.
 If not, they are not really constitutions.
 So they cannot be the product of cozy elite
deals.
 If constitution are not the product of popular
processes, then typically,
 They will not work, because the people do not
understand them and are not committed to
them,
 They will not be viewed as legitimate,
 And they will probably be the wrong
constitution for the country, because only the
people really know.

12. BUT HOW CAN
CONSTITUTIONS
GROW FROM A
POPULAR PROCESS?

13. BUT HOW CAN CONSTITUTIONS GROW
FROM A POPULAR PROCESS?

14. DIFFICULTIES
 Becoming a constitutionalist country is
difficult.
 Conducting a popular process to
formulate a constitution is difficult.
 And both require a certain amount of
unity among the people.
 Otherwise, leaders will take advantage
of disunity to craft a constitution that
mostly helps themselves.

15. UNITY AND
PLURALISM
 The point in constitutional frameworks is
to allow pluralism: different people will
take different views of the issues.
 But on one thing we cannot have real
pluralism: the constitutional framework
itself, because that is what allows us to be
pluralist, to resolve our differences
peacefully through the established
channels.
 If we do not have unity on the
constitutional foundations, we will
generally have civil war instead.
 But where do we find this unity?

16. SO WHERE DOES THE UNITY COME FROM?
 John Locke posited two contracts:
1. First, the social contract, by which people commit to each other, to
form a people and to share a people;
2. Second, the rectoral contract, by which the people contract with
their government they give it certain powers, impose on it certain
limits, and agree to be governed by it in other words, a
constitution.
 So the social contract precedes the rectoral contract; it is the soil
from which the rectoral contract grows.

17. RECTORAL CONTRACTS
 Most people are familiar with the social contract idea but not with the rectoral
contract idea.
 Some use the name “social contract” to refer both to
 A contract among the people,
 And a contract between the people and the government.
 But strictly speaking, it refers only to the former; the rectoral contract is
something different.
 For Locke, individuals must first form a people, so that they can then act as a
unit to contract with a government.

18.  For political purposes, the rectoral contract is the more important:
 The social contract grows up from general social processes, knitting
individuals into an organic entity over time, often without notice;
 But the rectoral contract is a deliberate act at a particular moment, to
charter a government in a constitution.
 It should be the product of foresight, deliberation, and decision.
 The rectoral contract is the basis for the legitimacy of the government:
without popular authorization, the government has not right to exercise
power over citizens.

19. BUT IF, IN GENERAL, THE SOCIAL CONTRACT PRECEDES
THE RECTORAL CONTRACT, THEN WE MUST ASK: WHAT IS
THE SOCIAL CONTRACT IN UKRAINE?

20. THE SOCIAL
CONTRACT IN
UKRAINE?

21. THE SOCIAL CONTRACT IN UKRAINE?

22. BASED ON POLITICAL TRADITIONS?
 In 1990, there was a universal desire for independence.
 But there was no social contract built around political traditions.
 Ukraine had been an independent political unit only for short periods
1. The 1648 Hetmanate was a long time before and was built around
political forms that had become anachronistic;
2. 1917-1921 gave rise to many different political forms;
3. Soviet political forms were profoundly controversial and divisive.
 In the years since, no social contract on political structure has emerged.

23. BASED ON TRADITIONAL IDENTITY CATEGORIES?
 Similarly, a social contract could not be based around ethnicity,
religion, or language.
 Historically, Ukraine was very diverse; demographic engineering
around the two world wars reduced but did not eliminate the
diversity.
 And at independence as now, to be part of the people of Ukraine
does not mean to be ethnically Ukrainian, or to speak Ukrainian or
to be part of the Orthodox or Greek-Catholic church.

24. CIVIC IDENTITIES  So the only real possibility is a
social contract built around a
civic identity: belonging to the
independent Ukrainian polity.
 In other words, the social
contract for Ukrainians is a
shared citizenship in a political
project.
 But it is difficult to build a polity
around that kind of identity.

25.  As an independent polity, Ukraine is still quite new.
 But if the social contract that underlies Ukraine is the bond of
common citizenship, then the social contract only came into
existence at the same time that Ukraine became an independent
polity.
 And indeed, the social contract is more or less synonymous with
the constitution itself, because that is what creates the common
citizenship; it creates the polity that generates the possibility of
citizenship.

26. BACK TO LOCKE
 Locke posited that the social contract preceded the rectoral contract:
1. First, the people form themselves into a unity;
2. And then, they form a government, so the social contract is the soil from
which the rectoral contract grows.
 But in Ukraine, the social contract is collapsed into the rectoral contract; they
are really the same thing.
 So the social contract must be created at the same time and through the
same acts that the rectoral contract (the constitution) must be created.
 So it is not surprising that the country should be turbulent.

27. SO IF CIVIC
IDENTITY IS
THE BASIS OF
THE SOCIAL
CONTRACT,
AND IF CIVIC
IDENTITY IS A
PRODUCT OF
THE
RECTORAL
CONTRACT,
THEN THE
SOCIAL
CONTRACT
CANNOT
PRECEDE THE
RECTORAL
CONTRACT

28.  The social contract cannot come before the
rectoral contract.
 So instead, it must be formed
 Through the process of making the rectoral
contract in other words, through popular
constitution-making;
 And through the process of living in and
forming bonds through participating in a
political community generated by that
constitution.
 Not before but during.

29. POST HOC SOCIAL CONTRACTS
 Traditional liberal political theory posits that to be legitimate, government
must rest on the consent of the governed.
 And that means that popular consent comes before the government:
government traces its legitimacy to a primordial democratic act, the
constitution.
 So the social contract, then the rectoral contract, then the government.
 But in fact, frequently, consent comes after the constitution; people come to
support the constitution because it improves their lives outcome legitimacy.
 So the real rectoral contract forms after the constitution, and so can the social
contract.

30. OUTCOME LEGITIMACY
Hume, rather than Locke.
True for the United States.
And even truer for Ukraine.

31. THREE HURDLES

32. THREE HURDLES
1. The Executive
2. Elite Manipulation
3. Popular Confusion and Ennui

33. 1. THE FIRST HURDLE: THE EXECUTIVE
 When there is no pre-existing social contract, there is usually turbulence.
 And when there is turbulence, people tend to create very strong executives to
keep them safe.
 In Ukraine, people wanted a strong executive president because it was
thought that he could assert Ukraine’s independence from the Soviet Union.
 And even now, some think that the strong executive is necessary to push back
against Russia.
 But an overly strong executive tends to undermine the popular processes that
might give rise to a social/rectoral contract.

34.  When the Ukrainian constitution was first
developed, many favored a strong
executive as a form of separation of
powers—in other words, checks and
balances.
 The alternative was, for many, a
continuation of the old soviets, which
theoretically combined all types of
power—so, no checks and balances.
 But world-wide, right now, the greatest
threat to checks and balances is hyper-
presidentialism, in which the president
gathers all types of powers to his office.

35.  Over-powerful executives tend to strangle constitutional processes for two
reasons.
 First, practical reasons,
 It is difficult to meet, express views, and so forth.
 And over-powerful executives tend to constrain outcomes.
 Second, symbolic reasons:
 Hyper-presidents and their supporters tend to defend their power on the grounds that it is
needed to counter-attack existential threats.
 The sense of threat all around us tends to brutalize the citizenry, destroy the sense of the
possible, and kill social capital, which is necessary for the social contract people try just
to survive another day.

36. SEQUENCING
 So a constitution-making process will change the constitution;
most change will come after the process
 But some constitutional change may need to come before the
process, to make the process possible.
 And that may include reforms to the office of the presidency.

37. 2. THE SECOND HURDLE: ELITE MANIPULATION
 When there is no pre-existing social contract, the people tend to
be divided.
 And when the people are divided, the elite have room for
maneuver, to deliver a constitutional deal that will favor
themselves.
 The Orange Revolution, the Revolution of Dignity elite deals.

38. 3. THE THIRD HURDLE: POPULAR CONFUSION AND ENNUI
 When the people are divided, they tend to pay insufficient attention to the
importance of constitutionalism,.
 And that means that they pay insufficient attention to the creation of a
rectoral contract, which in turn means that they devote insufficient effort to
the development of a social contract.

39.  Instead, the people tend to focus on immediate problems such as
 Corruption,
 Unemployment,
 Environmental degradation,
 Foreign aggression, etc.
 And all these things matter, but to deal with them, we must look to their root
cause: a constitution that fails to adequately incentivize government to
grapple with them in a serious and thorough-going way.

40. CORRUPTION
 In some countries, people tend to believe that ciorruption is the cause of all
their problems, and often the international community agrees.
 So the international community funds many targeted ex post anti-corruption
programs, and it urges people to increase their anti-corruption efforts.
 But how many such programs has Ukraine had? And how well have they
worked?
 Corruption is a product of background conditions, and it can be attacked only
as such. Only ex ante approaches really work.

41. THE ROOTS OF CORRUPTION
 Corruption is a symptom, and before we can get at it, we must
diagnose the underlying problem.
 Background conditions are of two kinds: institutions and culture.
 Corruption flourishes when the surrounding culture validates it.
 Corruption flourishes when the basic legal institutions incentivize it.

42. THE DEFINITION OF CORRUPTION
 Corruption is generally defined as the abuse of public office/trust
for private gain.
 But what counts as “abuse”? And what counts as “private gain”?
 To abuse public office is to mis-serve the common good, the
public good, the general good.
 Private gain is personal interest that is antagonistic to the common
good, the public good, the general good.

43. THE COMMON GOOD
 So we will not be able to get at corruption until we can identify it, and we will
not be able to identify it until we define the common good.
 People commonly engage in corrupt acts because everyone else is doing it; the
culture permits it.
 And corruption can even seem to be morally commanded: one has obligations
to family, friends, and political supporters.
 To see it as corruption requires that we see it as a departure from the common
good and that we highly value the common good.
 So what is the common good in Ukraine?

44. CULTURE
 Ukrainians will not be able to discern a common good until they
have a social contract.
 Until then, the common good may see no more than each
individual’s private good but that is exactly what sets up
corruption.
 Hence, again, the importance of a constitution-making process
that can generate a rectoral contract and aid in creating a social
contract.

45. INSTITUTIONS
 When corruption persists despite targeted ex post anti-corruption programs,
the reason frequently is that the basic legal institutions—chief among them,
the constitution—incentivize the seeking of private gain rather than the public
good.
 Discovering the incentives is time-consuming and technically exacting, and it
cannot be done here in detail—except to note that strongly presidential
systems are strongly correlated with high levels of corruption.
 But change will require system-wide structural change; until then, anti-
corruption efforts will do little.

46. CORRUPTION AND BELLY FAT
 Trying to get rid of corruption through targeted anti-corruption
efforts is like trying to get rid of belly fat by doing a lot of
crunches: it doesn’t work.
 What is needed is systemic background change: diet and exercise.

47. PATRIOTISM NOT NATIONALISM

48. PATRIOTISM NOT NATIONALISM
 A social contract rooted in a civic identity is based on patriotism, rather than
nationalism.
 But developing a social contract based on patriotism is difficult for another
reason: it demands things of citizens.
 A social contract rooted in nationalism is easy:
 It asks nothing of people,
 To be worth something, one need only be a part of the volk, and loyal to its leaders.
 But patriotism is based on love of country, the conviction that it is worth
something.
 In a democracy, the country will be worth something only if the citizens are worth
something.
 And so it puts on them an obligation to buld the country.

49. WHERE NOW?

50. CONSTITUTION-
MAKING PROCESS
 Ukraine needs the kind of constitution-
making process that it has never had:
genuinely popular and genuinely
participatory.
 To continue over several years, with great
efforts at public education.
 The process should yield a better
constitution.
 But even more importantly, the process itself
can be the basis for a genuine social
contract-in-the-making.

51. DELIBERATE CHOICES
 A few constitutions, such as the UK’s, grow up organically over time.
 But Ukraine does not have the time for that process.
 Most constitutions are the product of deliberate choices at a particular time
by particular people.
 They represent the truth that human intelligence, carefully applied, can create
a better future.
 But only if Ukraine is in a constitutional moment.

52. TINKERING
 Small-scale incremental change—
tinkering--will not work; it has
already been tried.
 Tinkering will not work because
much larger change is needed.
 And tinkering also will not work
because it is almost always done
through cozy deals between elites,
and Ukraine has had enough of
those.

53. THE ELEMENTS
A diverse, elected constituent assembly, separate from the
Rada
Public education
Public input from the beginning
Referendum at the end.

54. THE PRESENT
MOMENT
 Right now, Ukraine has the social
basis for a process of this sort:
An educated citizenry,
Still somewhat engaged,
Disgusted with politicians, but
not cynical and not hopeless.
 The Maidan shows us what is
possible.

55. BEGINNINGS
 Ukraine experienced promising conditions for the beginning of a social
contract twice: the Orange Revolution and the Revolution of Dignity.
 And in fact, both on the Maidan and in the Donbas, Ukrainians started to
forge a social contract.
 But it was a social contract forged outside of government, and to some extent
in opposition to the government of the day and, for some, to the very idea of
government.
 So it was ultimately co-opted by elites in the government.

56.  A revolution, with hearts on fire, is never enough: the idealism
must be converted into a long-run, resilient constitution, which can
then help to nurture the social contract.
 Idealism without realistic, detailed structural reforms will not help
us much in the long run.
 But any country that can generate the Maidan protests has the
social capital necessary for a participatory constitutional process.

57. LIVING INTO THE
CONSTITUTION
 But even once the constitution is in
place, the making of the social contract
goes on.
 A social contract rooted in a civic
identity generally takes its foundation
in a constitution: “Constitutional
Patriotism.”
 But afterward, it grows through
 The sense of being well governed,
 Of participating in government
 And depending on one’s fellow citizens.

58. THE FUTURE
1. I have seen no country more in need of a
constitution-making process.
2. I have seldom seen a country with greater
obstacles:
 the executive,
 elite manipulation,
 popular confusion and ennui.
3. But I have never seen a country with greater
constitutional resilience:
 with limited historical traditions and shared
ethnic/religious/linguistic identity,
 but with infinite courage and belief in the
future,
 and the resolution to build a modern country

59. WHERE NEXT?
 Constitution-making processes.
 The executive dimension of
government.