Remarks on the 20th Anniversary

September 21, 2016
20th Anniversary of the Global Constitutional Seminar
Owen Fiss

This seminar was a product of its time – a triumphant moment in the history of democratic constitutionalism viewed on a world scale.

The period began in November 1989, when the Berlin Wall collapsed and the Soviet empire began to disintegrate, and when, in 1991, the Soviet Union itself was dissolved and the Cold War declared at an end. The newly freed nations of Central and Eastern Europe soon held elections and then rushed to consolidate these gains through the adoption of democratic constitutions.

At the same time that these developments were occurring in Europe, the apartheid system in South Africa collapsed – another world historic event. In February 1990, Nelson Mandela was released from prison, soon the apartheid laws of the country were repealed on a wholesale basis, and in April 1994, South Africa had its first election based on universal suffrage.

As part of its transition, South Africa established broad general principles – emphatically democratic – to govern the formation of a new national constitution. The constitutional court then established was charged  with the duty not only of interpreting the constitution eventually adopted, but even more significantly, of determining whether that constitution itself comported with the foundational principles that had been previously announced.

These newly won victories of democratic constitutionalism in Europe and Africa had their counterpart in Latin America. In Chile in 1989, Pinochet was repudiated and his dictatorship brought to an end. In 1989, Brazil held its first democratic elections since 1960. In 1991, Colombia adopted a new, fully democratic constitution and the constitutional court then established immediately began to discharge its mandate with remarkable vigor and imagination. In 1994, Mexico amended its constitution in a way that strengthened the practice of judicial review. And in the same year, a constitutional convention was convened in Argentina, which resulted in a series of reforms that not only allowed its president to run for a second term, but also and more importantly, enlarged the liberal democratic character of its 1853 constitution by making international human rights treaties of the supreme law of the land.

Of course, all was not bright and shiny in the early 1990s. We also  bore witness to extraordinary acts of violence– the genocides in Rwanda and the massacres of civilians that occurred in the Balkans following   the dissolution of Yugoslavia. Even in this context, however, the ideals that inspired this seminar were advanced when, in 1993 and again in 1994, the United Nations established two international tribunals to punish those responsible for those crimes against humanity. These tribunals were charged with the duty of protecting human rights, not constitutional rights, but their underlying ethos was the same as that of the constitutional courts of the era: to use of the reason of the law to further liberal, democratic values.

Living through this period, it was only natural for one of us to step forward and propose the establishment of this seminar. Indeed, the seminar might be seen as a tribute to the triumph of democratic constitutionalism in so many parts of the world in the early 1990s. The aim was to create a forum for those judges engaged in the practice of democratic constitutionalism to learn from one another. We assumed that by sharing their knowledge and experience the values then being applauded would be deepened and extended. Some even hoped that judges on the new constitutional reports would learn from the experience of those who served on the long establishment. The Yale faculty was to facilitate this learning process and, now and then, might even add to its own understanding of the practices of constitutionalism by eavesdropping on the conversations that were to take place among the judges.

Today, twenty years later, we live in a very different world. Values heralded in 1996 – liberal democracy, constitutionalism, and cosmopolitanism – are under attack – not yet defeated but under attack. In some of the European countries that played a prominent role in our early meetings – I’m particularly thinking of Hungary and Poland – militant majoritarianism has led to new forms of authoritarianism. Throughout Europe, national boundaries have also become increasingly pronounced, especially as the continent took up the burdens of the Middle East refugee crisis and suffers deadly, destructive terrorist attacks.

We in the United States are subject, of course, to many of the same dynamics. In recent years, the cosmopolitanism that initially inspired the seminar has been repeatedly threatened by those who would deny American judges the right to look beyond our national boundaries for the purpose of learning from the experiences of foreign courts and tribunals. At this very moment, we in the United States are living through a presidential election in which, to paraphrase a recent comment by President Obama, almost everything we believe is on the line – cosmopolitanism, liberalism, democracy, and maybe even constitutionalism.

We therefore must be careful in defining the purpose of this historic meeting – our 20th anniversary. The purpose should not be, I insist, one of celebration, but rather of rededication. We should not boast of our accomplishments, but rather acknowledge the unique challenges that democratic constitutionalism faces today and then dedicate ourselves to meeting those challenges. We cannot afford to coast on the triumphalism of democratic constitutionalism of 1996; we must instead begin with the sober assessment of how difficult the road ahead will be and then firmly resolve to push forward.

In this endeavor, dear judges, you can be certain of only one thing: the Yale Law School is no fair-weather institution. The Law School launched this seminar twenty years ago when the weather was just dandy. Be assured, however, that we will stand  firm even today as the ideals that inspired this venture are being ravaged by the storms of nationalism, illiberalism, and militant majoritarianism. I raise my glass to the seminar, not as a gesture of self-congratulation, but only to attest Yale’s resolve to do all that it could possibly do in these difficult times, to nourish and further the ideals that first drew us together and that continue to inspire us.