How do You Write a Constitution in Today's conditions? By Zaid al Ali. Zaid al Ali is the author of Arab Constitutionalism, The Coming Revolution, and a visiting fellow at Princeton University read by Rameshmetani. At the start of the Philadelphia Constitutional Convention of seventeen eighty seven, the delegates voted to keep their discussions secret. This, argued Pierce Butler of South Carolina, would prevent licentious publications of the proceedings and allow framers to conduct their deliberations without the fear of being second guest by uninformed or misinformed outsiders. Some of the most prominent of the founding fathers took opposing views on the decision. James Madison thought secrecy was a necessary precaution, writing to James Monroe, I think the rule was a prudent one, not only as it will effectually secure their requisite freedom of discussion, but as it will save both the convention and the community from one thousand erroneous and perhaps mischievous reports. But Thomas Jefferson wholeheartedly disapproved of the idea that the lawmakers should shield the process from the very people for whom they were designing the new laws. I'm sorry they began their deliberations by so abominable a precedent as that of tying up the tongues of their members. He would later write to John Adams. Nothing can justify this example but the innocence of their intentions and ignorance of the value of public discussions Jefferson's objections notwithstanding, the delegates were sworn into secrecy, and their deliberations were conducted behind closed doors, and not just doors, the windows of the Philadelphia State House were shuttered to keep out prying eyes. If the founding fathers set the template for written constitutions, they also established the manner of their writing by small groups of men deliberate in private, with little or no consultation with the rest of the country. Given the circumstances of their creation, it is remarkable that the US Constitution and others like it have survived, albeit with some amendments along the way. Or perhaps their survival is the product of those circumstances. The secrecy allowed for relatively calm debate and deal making, where full transparency and the resulting burden of having to appease diverse views of the citizenry might have made such compromise impossible. We can't know what document the founding fathers might have produced if they were writing it today, in an environment where Madison's thousand erroneous and perhaps mischievous reports is multiplied many times over these days, the process of drafting laws, specially in democracies or emerging democracies, is conducted in the open, under intense public scrutiny, with direct input from a wide range of people running the gamut from journalists and opposition politicians to social media influences, activists, and narrowly focused special interest groups. In theory, such scrutinies should lead to positive inputs and an improved final result. However, as we've seen over and over again in recent years, millions of partisans contest every word and phrase of any proposed laws, rallying raucous support for their positions in the online public square, that is, social media, pressuring lawmakers to hold firm to positions and preventing compromise. The resulting legislation can often be flawed, Provisions will be pulling in different directions, each seeking to respond to disparate needs that have little to do with each other. It can also be subject to immediate change when the other side wins an election. It is hard to imagine any law written under these conditions standing the test of time. The example of the most recent attempts to write a new constitution don't allow for much optimism. Since the so called Arab Spring of twenty eleven, the Middle East and North Africa have been the stage for the greatest concentration of constitutional conventions since the end of the Cold War. The constitutions they produced were designed, like the American Charter, to deliver democracy to peoples who had overthrown the yoke of tyranny, embodied by homegrown dictators, not foreign kings. However, none of them has been successful at fostering democratic processes, political stability, and better standards of living. Some, like the constitutions of Egypt twenty twelve and Tunisia twenty fourteen, were absolute disasters, replaced in just a few years by far more authoritarian texts. Those cautionary examples will be on the minds of Syriaus new rulers as they become the latest to try and write a new constitution in the full glare of local and international attention. The Hayata Tarid al sham hts or The Organization for the Liberation of the Levant Rebels, who overthrew the dictatorship of Bashir al Assad late last year, faced challenges similar to those who produced new charters elsewhere in the Arab world, under circumstances far more fraught than those of America's founding fathers. HDS are Sunni Islamists and are held in great suspicion by Syrians of other faiths and sects, as well as secular minded sections of the population. Even more than Yemen or Libya. Syria bears deep scars, emotional as well as physical, of a long, bloody civil war. The odds against HDS being able to produce a durable charter of laws are considerable, even its authority to do so is open to question. Traditional authorities like the rebel led government in Damascus are almost never elected and don't have a trial record of governing the country, so they have no claim to democratic or normative legitimacy. As a result, the citizenry is generally far less willing to give transitional authorities the benefit of the doubt, which in turn means that their actions are liable to be second guest, nor can they expect much patience from their public. In a post totalitarian environment, people's expectations are far higher than they would be in ordinary circumstances. Syrians are keenly aware of the freedoms they were denied by the Assat dictatorship, such as a total absence of the right to speech and association, and they will want immediate action from the new rulers to remedy that situation. And having endured so much deprivation and pain for so long, ordinary Syrians will be much more willing than usual to challenge the government if they disapprove of the new laws. That's what happened in Egypt in twenty twelve to twenty thirteen after the post Arabs Spring Goud government run by the Islamist Muslim Brotherhood introduced a new constitution, and in Iraq in twenty nineteen to twenty twenty, when it became clear that political sectarianism wasn't delivering the reforms that the general population wanted. The Egyptian and Iraqi constitutions had passed national referendums, so voters were in effect second guessing themselves as well as their rulers. In both countries, millions of citizens joined protests against their existing orders, braving crackdowns by law enforcement agencies. In Egypt, these protests led to the toppling of the government in Iraq, to the collapse of the government and fresh elections. Until its overthrow of the Assad regime, hds's only governing experience was an Idlib, a small province where the population is mostly Sunni and largely conservative. Now the rebels must contend with wider Syrian public opinion, including segments of the population that are deeply suspicious of their motivations. Soon after it took control over Damascus, HTS announced it would organize a national dialogue process to formalize its takeover of state institutions and launch the next stage of the transition. But at the end of January, the senior HTS leadership declared Ahmad al Shadah interim president without any of the consultation that was to have taken place in the national dialogue. To many Syrians, this was tantamount to rule by force of arms. In some countries, transitional authorities have sought to meet such challenges by developing smart communications strategies, but new rulers tend to have very little experience with managing mass communications, and these efforts have ended in failure. Virtually everywhere in Egypt's constitutional process, drafts were published without any meaningful effort to explain their content. This led to confusion among the general public and allowed those opposed to the new laws to interpret them totally out of context, which damaged the credibility of the entire process. Thus far, the HDS leadership has demonstrated an awareness of these challenges and has been seeking to influence public opinion through positive messaging. Just about every statement by senior HTS leadership includes references to inclusivity and good governance. Some Syrians have been impressed by this accommodating rhetoric, but others are unconvinced about the sincerity of the statements. To compound the traditional problems of communication, HDS must contend with the relatively new challenges of fake news and false narratives spread on social media, the modern equivalent of the licentious publications that so worried P. S. Butler that bedevil all modern political processes. In a post conflict environment, the winning side inevitably has enemies eager to undermine in transitional efforts. With social media and the Internet, those enemies have far more powerful tools at their disposal. ASSADS backers Russia and Iran are already conducting a campaign of misinformation against the HTS government, much of it playing on long standing sectarian and regional grievances. False narratives are now easier to spread and harder to counter than ever before. In Iraq, for instance, despite significant evidence to the contrary, much of the population remains convinced that their constitution was written by US occupation officials, which has undermined their confidence in the system of government over the past twenty years. When serious constitution making process finally gets off the ground, the relationship between the HTS government and the population will likely come under even more strain. Constitutions are made through high level and high stakes negotiations on issues of major importance, including who is in charge of governance, who controls the security services, and who controls the country's first strings. One immediate difficulty is that in post conflict and territorially divided countries like Syria, the process can be overly long. Libya is a good example. Its transition started in twenty eleven and its constitutional process formally commenced in twenty fourteen, but negotiations are still ongoing. Today. In this climate, secrecy only serves to deepen suspicions. As Madison recognized, it allows parties to offer and accept concessions as they try to reach a final agreement, but this creates the obvious problem that the outcome of any such negotiations may not enjoy democratic legitimacy. For weeks now, HTS and the Syrian Defense Forces which control northeastern Syria have been engaging with each other, mostly behind closed doors, on whether the country should have a single centralized government or should be decentralized in some way. The only public messaging that has been occurring has either been to restate initial positions. HDS is opposed to decentralization, SDF is unwilling to accept anything less than local autonomy, or expressions of frustrations at the lack of progress in Sudan. Following the success of the twenty nineteen uprising against the military dictator Omar al Bashir, the interim government and armed groups negotiated a peace agreement across the border in neighboring South Sudan, partially to avoid public scrutiny. The ensuing agreement was hailed as a major achievement internationally, but the text was negotiated by unelected armed groups and an unelected government with very little public involvement. In Khartoum, the general population was largely unenthusiastic, and nobody was surprised when the security forces mounted a coup against the government in twenty twenty one. The challenge for HTS is to keep the Syrian population involved and supportive of the transition and manage a smooth constitutional convention, even while holding off malign forces that are determined to ensure its failure. America's founding fathers had it easy. By comparison,

How do You Write a Constitution in Today's conditions? By Zaid al Ali. Zaid al Ali is the author of Arab Constitutionalism, The Coming Revolution, and a visiting fellow at Princeton University read by Rameshmetani. At the start of the Philadelphia Constitutional Convention of seventeen eighty seven, the delegates voted to keep their discussions secret. This, argued Pierce Butler of South Carolina, would prevent licentious publications of the proceedings and allow framers to conduct their deliberations without the fear of being second guest by uninformed or misinformed outsiders. Some of the most prominent of the founding fathers took opposing views on the decision. James Madison thought secrecy was a necessary precaution, writing to James Monroe, I think the rule was a prudent one, not only as it will effectually secure their requisite freedom of discussion, but as it will save both the convention and the community from one thousand erroneous and perhaps mischievous reports. But Thomas Jefferson wholeheartedly disapproved of the idea that the lawmakers should shield the process from the very people for whom they were designing the new laws. I'm sorry they began their deliberations by so abominable a precedent as that of tying up the tongues of their members. He would later write to John Adams. Nothing can justify this example but the innocence of their intentions and ignorance of the value of public discussions Jefferson's objections notwithstanding, the delegates were sworn into secrecy, and their deliberations were conducted behind closed doors, and not just doors, the windows of the Philadelphia State House were shuttered to keep out prying eyes. If the founding fathers set the template for written constitutions, they also established the manner of their writing by small groups of men deliberate in private, with little or no consultation with the rest of the country. Given the circumstances of their creation, it is remarkable that the US Constitution and others like it have survived, albeit with some amendments along the way. Or perhaps their survival is the product of those circumstances. The secrecy allowed for relatively calm debate and deal making, where full transparency and the resulting burden of having to appease diverse views of the citizenry might have made such compromise impossible. We can't know what document the founding fathers might have produced if they were writing it today, in an environment where Madison's thousand erroneous and perhaps mischievous reports is multiplied many times over these days, the process of drafting laws, specially in democracies or emerging democracies, is conducted in the open, under intense public scrutiny, with direct input from a wide range of people running the gamut from journalists and opposition politicians to social media influences, activists, and narrowly focused special interest groups. In theory, such scrutinies should lead to positive inputs and an improved final result. However, as we've seen over and over again in recent years, millions of partisans contest every word and phrase of any proposed laws, rallying raucous support for their positions in the online public square, that is, social media, pressuring lawmakers to hold firm to positions and preventing compromise. The resulting legislation can often be flawed, Provisions will be pulling in different directions, each seeking to respond to disparate needs that have little to do with each other. It can also be subject to immediate change when the other side wins an election. It is hard to imagine any law written under these conditions standing the test of time. The example of the most recent attempts to write a new constitution don't allow for much optimism. Since the so called Arab Spring of twenty eleven, the Middle East and North Africa have been the stage for the greatest concentration of constitutional conventions since the end of the Cold War. The constitutions they produced were designed, like the American Charter, to deliver democracy to peoples who had overthrown the yoke of tyranny, embodied by homegrown dictators, not foreign kings. However, none of them has been successful at fostering democratic processes, political stability, and better standards of living. Some, like the constitutions of Egypt twenty twelve and Tunisia twenty fourteen, were absolute disasters, replaced in just a few years by far more authoritarian texts. Those cautionary examples will be on the minds of Syriaus new rulers as they become the latest to try and write a new constitution in the full glare of local and international attention. The Hayata Tarid al sham hts or The Organization for the Liberation of the Levant Rebels, who overthrew the dictatorship of Bashir al Assad late last year, faced challenges similar to those who produced new charters elsewhere in the Arab world, under circumstances far more fraught than those of America's founding fathers. HDS are Sunni Islamists and are held in great suspicion by Syrians of other faiths and sects, as well as secular minded sections of the population. Even more than Yemen or Libya. Syria bears deep scars, emotional as well as physical, of a long, bloody civil war. The odds against HDS being able to produce a durable charter of laws are considerable, even its authority to do so is open to question. Traditional authorities like the rebel led government in Damascus are almost never elected and don't have a trial record of governing the country, so they have no claim to democratic or normative legitimacy. As a result, the citizenry is generally far less willing to give transitional authorities the benefit of the doubt, which in turn means that their actions are liable to be second guest, nor can they expect much patience from their public. In a post totalitarian environment, people's expectations are far higher than they would be in ordinary circumstances. Syrians are keenly aware of the freedoms they were denied by the Assat dictatorship, such as a total absence of the right to speech and association, and they will want immediate action from the new rulers to remedy that situation. And having endured so much deprivation and pain for so long, ordinary Syrians will be much more willing than usual to challenge the government if they disapprove of the new laws. That's what happened in Egypt in twenty twelve to twenty thirteen after the post Arabs Spring Goud government run by the Islamist Muslim Brotherhood introduced a new constitution, and in Iraq in twenty nineteen to twenty twenty, when it became clear that political sectarianism wasn't delivering the reforms that the general population wanted. The Egyptian and Iraqi constitutions had passed national referendums, so voters were in effect second guessing themselves as well as their rulers. In both countries, millions of citizens joined protests against their existing orders, braving crackdowns by law enforcement agencies. In Egypt, these protests led to the toppling of the government in Iraq, to the collapse of the government and fresh elections. Until its overthrow of the Assad regime, hds's only governing experience was an Idlib, a small province where the population is mostly Sunni and largely conservative. Now the rebels must contend with wider Syrian public opinion, including segments of the population that are deeply suspicious of their motivations. Soon after it took control over Damascus, HTS announced it would organize a national dialogue process to formalize its takeover of state institutions and launch the next stage of the transition. But at the end of January, the senior HTS leadership declared Ahmad al Shadah interim president without any of the consultation that was to have taken place in the national dialogue. To many Syrians, this was tantamount to rule by force of arms. In some countries, transitional authorities have sought to meet such challenges by developing smart communications strategies, but new rulers tend to have very little experience with managing mass communications, and these efforts have ended in failure. Virtually everywhere in Egypt's constitutional process, drafts were published without any meaningful effort to explain their content. This led to confusion among the general public and allowed those opposed to the new laws to interpret them totally out of context, which damaged the credibility of the entire process. Thus far, the HDS leadership has demonstrated an awareness of these challenges and has been seeking to influence public opinion through positive messaging. Just about every statement by senior HTS leadership includes references to inclusivity and good governance. Some Syrians have been impressed by this accommodating rhetoric, but others are unconvinced about the sincerity of the statements. To compound the traditional problems of communication, HDS must contend with the relatively new challenges of fake news and false narratives spread on social media, the modern equivalent of the licentious publications that so worried P. S. Butler that bedevil all modern political processes. In a post conflict environment, the winning side inevitably has enemies eager to undermine in transitional efforts. With social media and the Internet, those enemies have far more powerful tools at their disposal. ASSADS backers Russia and Iran are already conducting a campaign of misinformation against the HTS government, much of it playing on long standing sectarian and regional grievances. False narratives are now easier to spread and harder to counter than ever before. In Iraq, for instance, despite significant evidence to the contrary, much of the population remains convinced that their constitution was written by US occupation officials, which has undermined their confidence in the system of government over the past twenty years. When serious constitution making process finally gets off the ground, the relationship between the HTS government and the population will likely come under even more strain. Constitutions are made through high level and high stakes negotiations on issues of major importance, including who is in charge of governance, who controls the security services, and who controls the country's first strings. One immediate difficulty is that in post conflict and territorially divided countries like Syria, the process can be overly long. Libya is a good example. Its transition started in twenty eleven and its constitutional process formally commenced in twenty fourteen, but negotiations are still ongoing. Today. In this climate, secrecy only serves to deepen suspicions. As Madison recognized, it allows parties to offer and accept concessions as they try to reach a final agreement, but this creates the obvious problem that the outcome of any such negotiations may not enjoy democratic legitimacy. For weeks now, HTS and the Syrian Defense Forces which control northeastern Syria have been engaging with each other, mostly behind closed doors, on whether the country should have a single centralized government or should be decentralized in some way. The only public messaging that has been occurring has either been to restate initial positions. HDS is opposed to decentralization, SDF is unwilling to accept anything less than local autonomy, or expressions of frustrations at the lack of progress in Sudan. Following the success of the twenty nineteen uprising against the military dictator Omar al Bashir, the interim government and armed groups negotiated a peace agreement across the border in neighboring South Sudan, partially to avoid public scrutiny. The ensuing agreement was hailed as a major achievement internationally, but the text was negotiated by unelected armed groups and an unelected government with very little public involvement. In Khartoum, the general population was largely unenthusiastic, and nobody was surprised when the security forces mounted a coup against the government in twenty twenty one. The challenge for HTS is to keep the Syrian population involved and supportive of the transition and manage a smooth constitutional convention, even while holding off malign forces that are determined to ensure its failure. America's founding fathers had it easy. By comparison,