A Comparison of the American and Russian Constitutions

Home , Federal law, Ruslan Khasbulatov, Senate (Ivory Coast), Upper house, White House (Moscow)

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Authors Mannheimer, David

Citation Mannheimer, David. (2008). "A Comparison of the American and Russian Constitutions." Alaska Justice Forum 24(4): web supplement (Winter 2008).

Publisher Justice Center, University of Alaska Anchorage

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Link to Item http://hdl.handle.net/11122/10604 ALASKA JUSTICE FORUM

A PUBLICATION OF THE JUSTICE CENTER

Winter 2008 Supplement UNIVERSITY of ALASKA ANCHORAGE Vol. 24, No. 4 Supplement

A Comparison of the American and Russian Constitutions David Mannheimer physical, battles. The twentieth century English philoso- But whenever a society asks itself such Editor’s Note pher and archaeologist Robin Collingwood questions, the answers are not written on a held the view that it was impossible to blank slate. Instead, the political, social, A shorter version of this article by David understand a system of thought or analysis economic, and physical conditions that the Mannheimer appeared in the Winter fully until one understood what questions society already faces (or expects to face 2008 print and online issues of the the framers of that system were attempting shortly) will ineluctably shape and limit Alaska Justice Forum. It can be found at to answer. Collingwood applied this mode the range of potential answers—that is, the http://justice.uaa.alaska.edu/forum/24/ of inquiry to philosophical studies, but his range of answers that are both feasible and 4winter2008/a_constitution.html. method is equally fruitful when the task is acceptable to members of the society. to understand the constitutions of nations. The constitutions of the United States or region and a more numerous lower house In a general sense, of course, the constitu- and the Russian Federation were written half comprising representatives elected by popu- tion of every nation addresses itself to the a world and more than two hundred years lar ballot. (Under the original version of the same basic issues: apart. Despite this fact, the two constitutions U.S. Constitution, senators were not elected • How will the government be constituted, appear to be remarkably similar on many by popular ballot; rather, they were chosen and how will authority be distributed levels. by the state legislatures.) Both constitutions within the government? Both provide a framework for nationwide reject the English system of direct parlia- • How will political power be invested in governance of a diverse group of constitu- mentary control over the executive branch. leaders, transferred to new leaders, and ent states or regions that are acknowledged Instead, the American president and the revoked prematurely if need be? to be sovereign in their own right. Both Russian president are elected by nationwide • What will be the relationship between the constitutions establish a federal government ballot, separate from the elections for the government and its citizens? In particu- comprising three independent branches—the legislature, and the president’s authority is lar, what will be the protected rights of executive, the legislative, and the judicial. designed to be distinct from (and, at times, a the citizenry and the corresponding limits Both constitutions provide for a bicameral counterpoise to) the legislature’s authority. on the power of the state? And what will legislature: a smaller upper house consist- Yet these surface similarities mask true be the government’s obligations to its ing of two representatives from each state differences—differences in the explicit citizens, and the citizenry’s obligations to the government? • What will be the relationship between Acknowledgements the national government and the various sub-levels of government, as well as the In researching this essay, I drew heavily on three recent books about modern Russian government’s relationship with the vari- political and social history: ous cultural, civic, ethnic, and religious Leon Aron, Russia’s Revolution: Essays, 1989-2006 (American Enterprise Institute groups within society? Press, 2007). • How will the national income and re- Daniel Yergin and Thane Gustafson, Russia 2010 (Vintage Books, 1995). sources be generated, distributed, and Peter Baker and Susan Glasser, Kremlin Rising: Vladimir Putin’s Russia and the regulated? End of Revolution (Potomac Books, 2007). I also consulted a recent work on Russian intellectual history, James H. Billington’s Sometimes, the answers to these ques- Russia in Search of Itself (Woodrow Wilson Center Press, 2004). tions will be found in the explicit provisions For the history of, and the arguments surrounding, the ratification of the American of a nation’s constitution; sometimes, the constitution, I relied primarily on the article, “A More Perfect Union: The Creation of answers to these questions will be found the U.S. Constitution,” which is available from the U.S. National Archives and Records in what the constitution does not say. And Administration at their web site: www.archives.gov. This web article is based on a sometimes (as, for example, the United longer printed work of the same title written by Roger A. Bruns and published by the States Constitution’s original provisions National Archives in 1986. regarding slavery), a constitution will either I obtained the English text of the Russian constitution from the Bucknell University explicitly or implicitly leave important ques- web site: www.departments.bucknell.edu/russian/const/constit.html. tions unanswered—deferring the resolution — David Mannheimer of these issues to later political, or even 2 Alaska Justice Forum 24(4), Winter 2008 Supplement provisions of the two constitutions and also without the active assent of the wealthiest the new government (the Federalists) and differences in how seemingly equivalent states. its opponents (the Anti-Federalists) waged provisions have been put into practice. The In addition to this political disarray, a polemical war. Anti-Federalists argued premise of this essay is that these differences America had to deal with a looming eco- that the new constitution undermined state can be understood only by studying the polit- nomic disaster. The states (and, as a con- sovereignty and that it gave too much power ical, economic, and societal problems faced sequence, the Congress) were running out to a remote central government. by the American and Russian peoples when of hard currency, a flood of paper money (It must be remembered that, in the late they formulated their constitutions and by was fueling extreme inflation, and both 1700s, the two cities that had served as the understanding the types of responses to these the business and the farm economies were national capital—New York and Philadel- problems that were suggested by the two foundering. phia—were almost as remote as London nations’ cultural and legal backgrounds. In 1786, prompted by the efforts of James for most Americans. For example, in the Madison andAlexander Hamilton, Congress year 1800, it took president-elect Thomas The Formulation of issued a call to the states to send delegates Jefferson three days to travel from his home the U.S. Constitution to a convention to consider a new national outside of Charlottesville, Virginia to the The United States Constitution was writ- constitution. Although the need for change new federal city of Washington, D.C. for ten in the summer of 1787. It was proposed seemed great, the idea of altering the form his inauguration—a geographic distance of to the states on September 17th, and it went of the national government was not univer- approximately 100 miles.) into effect nine months later, on June 21, sally popular. The political leadership of The Anti-Federalists believed that their 1788, when the requisite ninth state, New Rhode Island refused to send delegates to rights and liberties were better protected if Hampshire, voted to ratify it. As a practical the constitutional convention, and Patrick primary sovereignty was exercised by state matter, however, theAmerican union did not Henry, the ardent proponent of independence governments—governments that were more become politically secure until the populous and representative government, refused to amenable to local pressure and control. and commercially important states of Vir- join the Virginia delegation, declaring that They feared that a strong national govern- ginia and New York ratified the Constitution he “smelt a rat.” The convention’s early ment, beholden to no state, would allow the later that summer. decision to conduct its debates in secret did wealthy and well-born to control the country. Two hundred thirty years later, we in the little to assuage the fears of its critics. The Anti-Federalists also pointed out that United States often take this document for Madison’s notes of the convention de- the new constitution lacked any provisions granted. From a modern perspective, the bates reveal a lengthy, and at times seeming- guaranteeing individual liberties. choices made by the drafters assume an air ly irresolvable, conflict between the larger In response, a trio of Federalists (James of inevitability—as if the provisions of the states and the smaller states concerning the Madison, Alexander Hamilton, and John American constitution were self-evident scope of the new government’s authority, Jay) published the series of essays that rules for governing a democratic society. and concerning how the states were to be would become known as the Federalist We forget that the constitution was ratified represented in that new government—by only after vociferous and passionate de- population or with all states represented bate and that it was forged at a time when equally. In addition, there was bitter division Alaska many Americans distrusted any effort to between the northern and southern states on Justice establish a stronger central government, the questions of slavery and the regulation when the states often viewed each other as of navigation and foreign trade. Forum rivals, when the four major regions of the It took almost two months for the del- Editor: Antonia Moras country—the north, the middle, the south, oegates t agree to the compromise that Editorial Board: Allan Barnes, Sharon Chamard, and the west—had very different economic Americans now take for granted: a Senate Ron Everett, Pamela Kelley, Alan McKelvie, interests, and when Americans had many with equal representation by state and a Deborah Periman, Marny Rivera, André differing ideas about how society should be House of Representatives whose members Rosay, Lawrence Trostle organized. are allotted by population. (To obtain the Typesetting and Layout: Melissa Green The American Revolutionary War had assent of the southern states, the Constitution Justice Center, Robert Langworthy, Director been fought, not by a true national govern- specified that a slave was to be counted as Published quarterly by the ment, but by the joint effort of thirteen three-fifths of a person when determining a Justice Center independent states. Although the states had state’s representation in the House.) With University of Alaska Anchorage created a national congress and the Conti- the adoption of this compromise, the del- 3211 Providence Drive nental Army, the separate states retained egates finally became convinced that a new Anchorage, AK 99508 almost every aspect of fiscal and political constitution was achievable, and they began (907) 786-1810 (907) 786-7777 fax sovereignty. working on the details. [email protected] The conclusion of the Revolutionary War The proposed constitution was put before http://www.uaa.alaska.edu/just/ saw the American states freed from British the states in mid-September 1787. People © 2008 Justice Center, control but still surrounded on all sides by waited to see whether it would garner the University of Alaska Anchorage territory controlled by the major European assent of at least nine states—the minimum ISSN 0893-8903 powers—Great Britain, France, and Spain. needed for ratification under Article VII. The opinions expressed are those of individual Under the existing national charter (the People also waited to see whether the consti- authors and may not be those of the Justice Articles of Confederation), the American tution would be ratified by the crucial states Center. national government had no mechanism of Massachusetts, New York, Pennsylvania, The University of Alaska provides equal for settling disputes between the states, no and Virginia. education and employment opportunities for power to tax, very little power to regulate By October, a heated debate had started all, regardless of race, color, religion, national commerce, and essentially no way to engage up across the country. In public meetings origin, sex, age, disability, or status as a Vietnam-era or disabled veteran. in foreign policy or to fund a war effort and in newspaper articles, the proponents of Alaska Justice Forum 24(4), Winter 2008 Supplement 3

Papers. In these essays, they pointed out only three votes. Again, it was the promise hindrance of its leaders or policies, was the the dangers of weak national government of a bill of rights (and a threat of secession path to prison, exile, or death for millions and the virtues of the type of government by the southern counties of the state) that of Soviet citizens. embodied in the proposed constitution. helped procure a Federalist victory. Mikhail Gorbachev was a committed Chief among these virtues, they argued, The Federalists’promise of a bill of rights Communist, but he wanted to reform the was the fact that the proposed constitution came to fruition the following year, under economic and political system. During the established several competing organs of the guidance of James Madison, who was Cold War era, while the world economy was power within the federal government. This elected to the House of Representatives being transformed by electronics (comput- principle of divided power—an idea advo- from Virginia. In 1789, the first Congress ers, media, and communications), the Soviet cated by the French Enlightenment thinker approved and sent to the states the ten economy remained focused on heavy indus- Baron Charles-Louis de Montesquieu—is amendments that we now refer to as the try and the military. As a result, the Soviet now known to us as the doctrine of separa- Bill of Rights. By December 1791, these economy began to stagnate in the 1970s, tion of powers, or the system of checks and amendments had been ratified by the requi- and by the 1980s the Soviet Union could no balances. site three-quarters of the states. longer bear the cost of its empire. Five states (Delaware, Pennsylvania, Gorbachev set to work to reorganize the The Formulation of the Constitution New Jersey, Georgia, and Connecticut) moribund Soviet economy—a policy that of the Russian Federation quickly ratified the new constitution by became known as perestroika (restructur- wide margins. But the debate then moved The Constitution of the Russian Federa- ning). I 1987, at Gorbachev’s direction, to four pivotal states where the outcome tion was written in the fall of 1993, at a time the government enacted laws that relaxed was much less certain: Massachusetts, New of political crisis—an impasse between the central control over business enterprises, Hampshire, New York, and Virginia. Russian president, Boris Yeltsin, and the allowed private banking, allowed citizens to In early February 1788, the new consti- Russian Parliament. To explain this crisis, establish private shops and kiosks, and al- tution squeaked through the Massachusetts it is necessary to back up eight years, to lowed joint economic ventures with Western ratifying convention by a vote of 187 to 1985. investors. 168—only because the Federalists acknowl- In 1985, Russia was part of the So- But these reforms actually set the Soviet edged the strength of one of the Anti-Feder- viet Union—which, legally speaking, was economy on a downward spiral. Central alists’main objections and agreed to append a federation of fifteen socialist republics, planning of the economy was gone, but the a resolution calling for the speedy enactment of which Russia was the largest. On paper, old monopolies still existed, and the exist- of a national bill of rights. each republic (and the Union as well) had ing pricing system was still irrational (i.e., Despite the Massachusetts ratification, a parliamentary form of government. But unconnected to the true cost of, or demand the fate of the new national government the real power (in fact, almost total political for, goods and services). The economy got remained uncertain as the summer of 1788 and economic power) lay in the hands of worse, and shortages appeared. approached. The predicted vote (based on the Communist Party—and, ultimately, the The next year, despite the worsening the announced views of the delegates) was a small group of party leaders who comprised economic situation, Gorbachev began to tie in both New Hampshire (52-52) and Vir- the Politburo (the Political Bureau) of the liberalize the political climate in the Soviet ginia (84-84). The outlook in New York was party. Union, under the banner of glasnost (open- bleak: Nineteen delegates had announced in In the spring of 1985, Mikhail Gorbachev nessr o liberalization). He encouraged favor of the proposed constitution, and 46 was selected by the Politburo as the Gen- open criticism of government actions and against. eral Secretary of the Communist Party—in policies, and he declared that the state itself But the compromise reached in Mas- effect, the ruler of the Soviet Union. Gor- was required to follow the law—that the sachusetts—the idea that the constitution bachev was heir to a political and economic Soviet Union should become a government would be ratified and then speedily amended totalitarianism that began with the Bolshevik of laws (pravovoe gasudarstva), and not a to include a bill of rights—proved sufficient Revolution in November 1917 (late October government of arbitrary state power. He also to carry the day for the Federalists. in the Russian calendar—hence it is referred suggested that the Communist Party might On June 21st, New Hampshire ratified to as the October Revolution), and that relinquish its leading role—in other words, the constitution after five delegates changed reached its zenith under Joseph Stalin, who that it should be legal for people to organize their minds and decided to vote in favor. was undisputed master of the Soviet Union other political parties. In 1990, Gorbachev (The vote was 57 to 47.) Four days later, from 1928 until his death in 1953. had the Soviet constitution amended to and acting without knowledge of the New In the Soviet Union, the Communist achieve this goal. Hampshire vote, Virginia also voted to ratify Party held a complete monopoly on political To further advance this new view of the the constitution—89 to 79. activity, and it controlled all the structures Soviet state and to break the power of the In early July, Congress received word that of government. The government, in turn, Communist old guard, Gorbachev revived the requisite number of states had ratified owned all industry and business (except for the soviets—the national and provincial the new constitution, and a committee was the black market). Essentially every adult in legislatures that were the remnants of the appointed to put it into effect. The crucial the Soviet Union was employed by the state. democratic bodies that existed during the state of New York, however, had still not Moreover, the types of goods produced, the early stages of the Russian Revolution decided what to do. levels of production, and the price of every (March to November 1917), before the Bol- On July 26, 1788, New York held its good and service was set by state decree. sheviks consolidated their power. (Soviet is vote. Even though the delegates knew that Membership in the Communist Party the Russian word for council.) The Com- the Constitution had already been ratified was the path to advancement. The nation munists had retained these legislatures as a by nine states (and that a “no” vote would was run by an elite group of Communist parliamentary facade—to rubber-stamp the leave New York out of the new national political leaders, administrators, and manag- decisions of the Communist leadership—but government), the New York vote was still ers known collectively as the nomenklatura. Gorbachev insisted that they again become extremely close: 30 to 27, a difference of Opposition to the Communist Party, or true representative bodies. 4 Alaska Justice Forum 24(4), Winter 2008 Supplement

Gorbachev engineered his own election On August 18, 1991, while Gorbachev ceived that the remnant of the Soviet as President of the Supreme Soviet—that is, was away from Moscow, vacationing in the government was no longer in a position to the national parliament—so that his official Crimea, the conservatives staged a coup. govern, and he began taking steps to have the basis for running the country was not his They arrested Gorbachev and held him government of the Russian Republic take its position as head of the Communist Party’s incommunicado. They then attempted to place as the true sovereign within the Russia Politburo, but rather his position as head of re-assert Soviet power. Early in the morn- territory. At the end of August, Yeltsin and the parliament. ing of August 19th, the official Soviet news the Russian Parliament suspended the opera- Gorbachev’s aim in all of these efforts agency, TASS, announced that Gorbachev ftions o the Communist Party within Russia, was to steer the Soviet Union toward a new, had “serious health problems” and could and also seized the Party’s property. revitalized future—still under Communist no longer govern, and that Vice-President Without much fanfare, the Soviet Union leadership, but with substantial political Gennady Yaneyev had assumed leadership now dissolved. Its constituent republics had and economic freedom. This was not to of the country. declared independence; it had no income; be. Instead, the Soviet Union began to fall But the political situation was beyond the and it had no military power. In December apart. plotters’ control. The citizens of Russia— 1991, the Soviet Union ceased to exist as a The chief architect of its dissolution was and, perhaps more important, the military legal entity. On December 25, Mikhail Gor- Boris Yeltsin, a Communist leader who had units within Russia—were no longer willing bachev submitted his resignation as head of briefly been Moscow party chief and a mem- to rally to the cause of the Soviet Union. a government that no longer had a territory ber of the Politburo under Gorbachev—un- The leaders of the coup made the mistake to govern. “Given the current situation,” he til Gorbachev dismissed him in 1987 for of failing to cut off internal communications said, “I am ceasing my activities as president criticizing the conservative members of the within Russia—allowing the citizens to of the Union of Soviet Socialist Republics.” Politburo and the slow pace of reform. quickly discover what was going on and to With Gorbachev’s resignation, the Soviet Gorbachev’s political reforms allowed mobilize resistance. When the coup began, Union was gone. The Russian Republic was Yeltsin to do something that would have Yeltsin was in his dacha in the country. the undisputed sovereign of Russia. been unthinkable under Communist totali- The coup leaders sent police to arrest him, But this did not mean that all was well tarianism: After being dismissed from the but the police mistakenly went to Yeltsin’s in Russia. In the fall of 1991, Yeltsin had Politburo (and from his job as Moscow party apartment in Moscow. This allowed Yeltsin selected economist Yegor Gaidar to lead the chief), Yeltsin returned to political power de- to remain free and return to Moscow, where effort to transform the Russian economy spite the wishes of the Soviet leadership. he and his supporters barricaded themselves into a capitalist economy. Gaidar’s reforms With the revival of the provincial legis- inside the Russian House of Parliament, soon led to disaster. The economy, already latures, Yeltsin successfully ran for a seat known as the White House (Bielyi Dom). weakened by six years of Gorbachev’s half- in the Russian Soviet (i.e., the Parliament From the White House, Yeltsin maintained measure reforms, rapidly became worse with of the Russian Republic). And in 1990, he telephone contact with the rest of Russia— the collapse of the Soviet Union’s inter-re- was elected speaker of that body. indeed, the rest of the world. He denounced public trading structure, as all of the member In June 1990, under Yeltsin’s leadership, the coup as unconstitutional, and he called republics declared their independence. the Russian Republic declared that it was a for mass resistance from the citizens of Rus- The downward plunge of the Russian sovereign member of the Soviet Union and sia. economy was catastrophic: Investment that the laws of the Republic took prece- At the command of the coup leaders, dropped by half, industrial production dence over the laws of the Soviet Union. In troops formed a cordon around the Rus- plummeted, and riotous inflation wiped out other words, there were now two national sian White House. But in between these people’s savings. In the eighteen months governments laying competing claims to soldiers and the parliament building, tens of between January 1992 and June 1993, prices sovereignty within Russia. The following thousands of protesters assembled to create rose nearly ten thousand percent. year, in June 1991, Yeltsin became the first a protective buffer for Yeltsin and the other This economic turmoil became the major democratically elected President of the leaders of the Republican government. factor driving a political wedge between Russian Republic. That same year, the other The leaders of the coup now discovered Boris Yeltsin and the Russian Parliament. fourteen Soviet republics followed Russia’s that they did not have the undivided support As the Russian economy collapsed under lead and declared their sovereignty—still of the military. The chief of a tank battalion Yeltsin and Gaidar’s new economic reforms, technically within the framework of the surrounding the White House declared his the lower house (the Congress of People’s Soviet Union. unit’s loyalty to the Republican leadership. Deputies) began to openly criticize Yeltsin’s The last nail in the coffin of the Soviet Yeltsin then donned a bullet-proof vest, leadership, and his former allies became his Union was the Russian Republic’s insistence emerged from the barricades, and climbed political enemies. that it controlled all tax revenues generated up on one of the tanks, proclaiming defiance One crucial fact of political life in Russia in Russia. By mid-1991, the Soviet govern- to the coup. By the end of the day, more was that even though a peaceful revolu- ment was strangling for lack of money. troops, including an elite commando divi- tion had produced the fall of the Soviet At this point, Gorbachev realized that his sion, were coming over to the Republican Union, that revolution produced remarkably reforms were moving in a direction he had side. little change in the identity of the people not foreseen—the impending collapse of the The coup leaders now decided to end the in power. The former ruling class of the Soviet Union as a unified government. He standoff with an armed assault, but key com- Soviet Union—the Communist nomenkla- turned to the conservatives to aid him in his manders and military units failed to obey tura—was not exiled, imprisoned, or shot. battles with the resurgent Russian Republic. them. OnAugust 20th, as citizens raised the Instead, the nomenklatura made the switch But it was too late: The conservatives had white, blue, and red banner of the Russian to the new mode of government: They already decided that Gorbachev was leading Republic, the troops surrounding the White acceded to democracy, but they retained the Soviet Union to disaster—and that if the House abandoned their siege. The coup had control over the country’s industry and situation was to be saved, Gorbachev would failed. economic resources—and, in the rural areas have to go. When the coup collapsed, Yeltsin per- of the country, they continued to exercise Alaska Justice Forum 24(4), Winter 2008 Supplement 5 effective political control as well. Yeltsin in resisting the Communist coup in Both provide for a bicameral legislature: an (Even the leaders of the August 1991 1991—but this time, Yeltsin was the one di- upper house consisting of two representa- coup escaped retribution. Although they recting the siege from outside the building. tives from each state or region and a more were soon arrested, they were never brought Events climaxed two weeks later when numerous lower house of elected representa- to trial. Instead, in February 1994, the Rus- Speaker Khasbulatov and Vice-President tives. Finally, both provide for a president sian Parliament passed a law that granted Rutskoi sent armed supporters to seize the who is selected by nationwide ballot. them amnesty.) Moscow mayor’s office and a television And yet, there are significant differences Because the nomenklatura was heavily transmitter. Yeltsin responded with greater between the two constitutions. These dif- represented in the Russian Parliament, one military force—sending tanks to the Par- ferences are mainly attributable to two fac- major point of contention between Yeltsin liament building and bombarding it with tors: the very different political problems and his political adversaries was whether cannon shells until it caught fire, thus forc- facing the two nations when they drafted Russia would have a strong president or ing the surrender of the deputies and their their constitutions and the different political a strong Parliament. Another major ques- supporters. traditions that shaped the drafters’ choices tion was whether Moscow would remain Yeltsin now seemed to be firmly in con- and emphasis. the political center of the Republic. In the trol of the government. He submitted his The American constitution was drafted summer of 1993, various Russian provinces new constitution to the Russian people—one as an arm’s-length agreement among these and cities began declaring themselves inde- modeled after the French constitution, which thirteen newly independent states. The pendento s that they could take advantage of conferred great power on the president. people of these states were clearly linked in the special privileges granted to the so-called On December 12, 1993, in a nationwide interest, and while they recognized the need autonomous regions under the constitution referendum, this proposed constitution was for national cooperation, especially in mat- that Russia had inherited from the Soviet adopted. ters of commerce and defense, they had just Union. But Yeltsin’s triumph was bittersweet. fought a long and costly war to free them- In the spring and summer of 1993, an He had focused his campaign efforts on selves from a distant king and parliament. effort was already underway to draft a new securing passage of the constitution, while They already enjoyed functioning, repre- constitution for Russia, but this effort was his political enemies had focused their at- sentative governments in their respective stymied by the lack of consensus as to what tention on control of the Parliament. In the states—and many, if not most, Americans kind of government Russia should have. parliamentary elections, the Communist were distrustful of efforts to establish a new, The Russian Parliament took the offen- Party (which was re-legalized in late 1992) strong, centralized government. Moreover, sive by enacting legislation that rescinded and the right-wing, ultra-nationalist Liberal rivalries and conflicts existed between the privatization, put control of reforms in Par- Democratic party of Vladimir Zhirinovski small and large states, between manufac- liament’s hands, and restricted the powers of did very well, while the reform parties turing interests and agricultural interests, the president. Once again, there were two friendly to Yeltsin’s policies did poorly. between the eastern states and the growing competing governments in Russia, but this During most of Yeltsin’s tenure as presi- western populations, and between the slave time the competitors were the president and dent, the Russian Parliament was dominated states and the free. Each group feared that the Parliament. These two branches of gov- by political parties which were not under their opponents would take control of a new ernment were in a deadlock, and there was Yeltsin’s control—and were often implaca- national government and use that power to no apparent way to end the crisis, because bly opposed to his policies and his power. impose their particular political and eco- the old Soviet-era constitution provided These parties were aided in their opposition nomic policies. that both the president and the Parliament by the civil liberties that Yeltsin himself had To allay these fears and to solve these po- were sovereign—but without providing a institutionalized in the new constitution— litical problems, the drafters of theAmerican mechanism to resolve their inevitable dif- especially, freedom of speech and of the constitution created a federal government ferences. press, freedom to organize politically, and whose power was intended to be limited In the fall of 1993, while Parliament was legislative immunity. Yeltsin never sought strictly to the enumerated areas of author- considering a variety of measures that would to return to the repressive government of ity. And to try to protect the states and the have reduced Yeltsin to a figurehead presi- Soviet days. With the possible exception of people from arbitrary or authoritarian use of dent, Yeltsin struck first. On September 21, the eight months between March 1917 (the this federal power, the drafters turned to the he dissolved both houses of Parliament. He overthrow of the Tsar) and November 1917 French philosopher Montesquieu’s idea of admitted to the citizenry that the constitution (the Bolshevik takeover), Yeltsin’s years a government containing several competing did not give him the power to do this, but he in power were the freest and most tolerant organs of power—a principle now known declared that, because he was “the guarantor period that Russia had known up to that to us as the doctrine of separation of pow- of the security of our State,” he was “obliged time. ers—the system of checks and balances. to propose a way out of this deadlock,” and The drafters of the Constitution of the A Comparison of the U.S. to “break this ruinous, vicious circle.” Russian Federation faced a strikingly dif- Constitution and Constitution The Parliament—led by Yeltsin’s vice- ferent political problem. of the Russian Federation president, Alexander Rutskoi, and Speaker Russia was already a nation. The eighty- Ruslan Khasbulatov—resisted. Parliament As I mentioned at the beginning of this nine provinces and regions of the Russian issued an edict deposing Yeltsin and install- article, the American and Russian constitu- Federation had been under a unified political ing Rutskoi in his place. In response, Yeltsin tions have several important similarities. authority for more than one hundred fifty ordered troops to surround the White House Both establish a federal government for a years (first under the tsars, and then under (i.e., the Parliament building). group of constituent states or regions that Soviet rule), but in 1993, Russia had just Thus began a siege of the White House are acknowledged to be sovereign in their regained its independence from the recently that was a replay of August 1991. Many own right. Both constitutions structure the dissolved Soviet Union. The country was of the Parliamentary deputies inside the federal government in three branches—the undergoing extreme political and economic building were the same ones who had joined executive, the legislative, and the judicial. turmoil, made intolerable by a stalemate 6 Alaska Justice Forum 24(4), Winter 2008 Supplement between the presidency and the Parliament. expansive role. Article 71 gives the federal while the American contains a detailed de- Because Russia’s existing constitution government jurisdiction over some four scription of the powers (and the limitations (inherited from Soviet days) declared that dozen aspects of government, including: on the power) of Congress, it devotes very both the president and the Parliament were little space to defining the authority of the • “regulation and protection of the rights sovereign, it did not provide a mechanism president. The Russian, on the other hand, and liberties of [the] citizen;” for resolving their inevitable differences. contains a lengthy description of the powers • establishing “procedure[s] for the or- The people who drafted the Russian consti- of the president and very little description of ganization and activities” of the three tution in the summer and fall of 1993 were the authority of the Parliament. branches of federal government; motivated by the threat that the federation The powers of theAmerican president are • “determining…policy and . . . programs would fall apart. set forth in Article II, Sections 2 and 3. The in the fields of state structure, the econ- On the other hand, the Russian people president is the commander-in-chief of the omy, the environment, and the social, had just emerged from seventy years of armed forces (and of the state militias, “if cultural and national development of the communist totalitarianism. If the federal they have been called into the service of the Russian Federation;” government was reconstituted so that it had United States”). In addition, the president • “federal power grids, . . . federal trans- sufficient strength to hold the country to- has the authority to appoint, with the con- port, railways, [and] information and gether, there was a danger that newly-won sent of the Senate, all officers of the federal communications;” and civil and economic liberties would disap- government (i.e., all officers whose manner • “law courts; the Procurator’s office; [and] pear. of selection is not otherwise specified in the criminal [and] criminal procedure . . . The drafters’ response was to craft a constitution). (Article II, Section 2 allows legislation[.]” constitution that (1) clearly declared or Congress to enact statutes that eliminate the re-affirmed federal supremacy over the con- Moreover, Article 72 of the Russian con- requirement of Senate approval for specific stituent provinces and regions; (2) gave the stitution gives the federal government and federal officers and that authorize the “Heads presidency great power— to try to make sure the provincial/regional governments joint of Departments” or the “Courts of Law” to that the government would not again be par- jurisdiction over many other governmental appoint certain federal officers instead of the yalyzed b irreconcilable differences between functions, including: president.) the executive and legislative branches; and Beyond this, the American president • “issues [concerning] the possession, (3) contained numerous explicit guarantees is empowered (1) to require the principal use, and management of land, mineral of the civil and economic rights and liberties heads of the departments of the federal resources, water, and other natural re- to be enjoyed by Russian citizens. government to report on any subject relat- sources;” ing to their duties, (2) to grant pardons and Federal Supremacy • “protection of the environment and eco- reprieves, (3) to convene the Congress “on logical safety;” Both the American constitution (Article extraordinary occasions,” and (4) to “receive • “general questions of upbringing, educa- VI) and the Russian (Articles 4, 5, 15, 71, ambassadors and other public ministers [of tion, science, culture, physical culture, 76, and 77) explicitly provide for federal foreign countries].” The president is also and sports;” supremacy within specified spheres of fed- directed to “take care that the laws be faith- • “coordination of health issues, protection eral authority. Indeed, it is hard to imagine fully executed.” of the family, motherhood, fatherhood, that any federal government could function In contrast, Article 80 of the Russian and childhood, [and] social protection without such supremacy. The two constitu- constitution declares that the president “shall including social security;” tions, however, define that sphere of federal be the head of state” and “the guarantor • “administrative, . . . labor, family, hous- authority quite differently. of the Constitution . . . and of human and ing, land, water, and forestry legisla- In the U.S. Constitution, the areas of civil rights and freedoms.” The president tion;” federal supremacy are primarily set forth in is directed to “take measures to protect the • “[the membership of] the judiciary and Article I, Section 8 (which lists the areas of sovereignty of the Russian Federation, its law-enforcement agencies, the bar, [and authority that are affirmatively granted to independence and [its] state integrity,” to the] notariate;” and Congress), Article I, Section 10 (which lists “ensure concerted functioning and inter- • “establishment of general guidelines for the areas of authority that are prohibited to actionf o all bodies of state power,” and the organization of . . . bodies of state the states), and Article III, Section 2 (which to “define the basic domestic and foreign power and local self-government.” lists the types of litigation entrusted to the policy guidelines of the state.” federal courts). Although Article 72 declares that these Under Article 83, the president has com- In general, these provisions give the foregoing concerns fall within the joint plete power to appoint all officers of the fed- federal government pre-eminent authority authority of the federal and the provincial/ eral government except the prime minister in matters of interstate and international regional governments,Article 76 states that, (an office described as the “Chairman of the commerce, national defense, and interna- in these areas of joint jurisdiction, “federal Government of the Russian Federation”). tional relations. They also give the federal laws shall be issued and, in accordance with Article 83 specifies that the Duma (i.e., the courts the power to adjudicate disputes be- them, laws and other regulatory acts of [the lower house of Parliament) must consent to tween states and between states and foreign constituent provinces, and regions] shall the president’s choice for prime minister. governments. These were the areas where be adopted.” In other words, the federal However, under Article 111, if the Duma Americans most keenly felt the weakness government’s laws on these matters are refuses to accept the president’s nominee of the pre-existing confederation and where controlling. for prime minister three times in succes- they perceived the greatest need for a federal sion, the president is authorized to appoint The Presidency government able to enforce a nationwide the prime minister unilaterally, dissolve the uniformity of law and policy. Both the American and the Russian Duma, and call for new elections. Similarly, Under the Russian constitution, the fed- constitutions provide for a president to be under Article 117, if the Duma gives a vote eral government is granted a much more elected by nationwide popular vote, but of “no confidence” in the prime minister’s Alaska Justice Forum 24(4), Winter 2008 Supplement 7 government twice in a three-month period, Congrega-tionalist Church was the estab- membership of public associations or any the president is given the choice of either lished church, and all citizens were obliged other circumstance.” Article 32 guarantees dismissing the government or dismissing to support it. No one thought that the enact- all citizens equal access to state services and the Duma and calling for new elections. ment of the First Amendment required any the right to participate in government. Article 85 gives the president the power change in Connecticut’s state government. 2Article 2 guarantees an individual’s to suspend the operation of a law “pending It would take two more centuries—en- right to “freedom and personal inviolabil- the resolution of the issue in the appropriate compassing a civil war, the enactment of ity,” and it declares that the government court” if the president believes that a law the Fourteenth Amendment, and a series of cannot hold a person in custody for more passed by a constituent province or region Supreme Court decisions in the 1950s and than forty-eight hours without a court order. violates the federal constitution or any fed- 1960s—before the Bill of Rights would Article 23 guarantees the right to privacy, eral law or that it violates “human and civil assume its modern role in American law and it provides that the government cannot rights and liberties.” as a set of federally guaranteed rights and infringe the privacy of “correspondence, And under Article 90, the president is liberties. telephone communications . . . and other empowered to “issue decrees and execu- In contrast, the Constitution of the communications” without a court order. tive orders [that are] binding throughout the Russian Federation explicitly commits 5Article 2 states that the government territory of the Russian Federa-tion,” so the federal government to protect a whole cannot “enter a home against the will of the long as these decrees and orders “[do] not panoply of civic rights and benefits—and persons residing in it except under a court contravene the Constitution . . . or federal not just political and religious rights. The order or in other instances provided by fed- laws.” Russian constitution also guarantees the eral law.” types of economic and social benefits that 6Articles 4 and 47 guarantee equal access The Rights of Citizens Russian citizens received (or, at least, were to the courts as well as judicial protection Americans are justly proud of our Bill theoretically entitled to) under the socialist of citizens’rights. Article 48 guarantees the of Rights—the first ten amendments to the framework of the Soviet Union. right to counsel, and Article 49 guarantees United States Constitution, which deal with fMany o the rights guaranteed by the the presumption of innocence in criminal issues such as freedom of speech, freedom Russian constitution correspond to rights cases. Article 51 guarantees the right against of the press, freedom from unreasonable that Americans have come to expect under self-incrimination. Article 50 forbids re- government searches and seizures, the right the Bill of Rights. peated conviction for the same offense, and to jury trial, the right to the assistance of For instance, Article 14 guarantees that it also guarantees defendants the benefit of counsel and to confront government wit- there will be no state-sponsored or manda- the exclusionary rule: the government can- nessesn i criminal cases, and the right to tory religion, and Article 28 guarantees an not rely on “evidence obtained in violation fair compensation when the government individual’s right to practice any religion, of federal law.” Article 54 forbids ex post exercises its authority to take private prop- “or to profess no religion.” Article 13 facto laws. erty. The Russian constitution, however, guarantees “ideological pluralism;” in other Articles 35, 36, and 44 guarantee the right guarantees a far greater array of liberties words, it guarantees that there will be no to hold private property (including land and and rights for its citizens. state-sponsored or mandatory political/so- intellectual property) as well as the right of It would be a mistake to view the Ameri- cial ideology (as there was under the days of inheritance. Article 35 also guarantees fair can Bill of Rights through a twenty-first Soviet rule). Similarly, Article 30 protects compensation for people whose property is century lens: These ten amendments were the right of association—both political as- taken by the government. And Article 37 not intended to be federal guarantees of in- sociation and economic association (e.g., forbids forced labor—similar to the Ameri- dividual liberties in the sense that the federal trade unions). Again, to prevent a return can ThirteenthAmendment’s prohibition on govern-ment could enforce these liberties to Soviet practices, Article 30 declares that “involuntary servitude.” on the states. Rather, when the Bill of “[n]o one may be coerced into joining any While these constitutionally guaranteed Rights was proposed and adopted in the late association.” rights are familiar to Americans, the Rus- 1700s, it was seen as a series of restrictions Article9 2 guarantees “freedom of speech sian constitution also protects many other on federal power—measures designed to and thought”—although it expressly forbids rights that are not found in, or at least are make sure that the new federal government “[p]ropaganda or campaigning to incite so- not explicitly guaranteed by, the American could do nothing to alter state law on these cial, racial, national, or religious hatred and constitution. subjects. It was designed to prohibit the strife.” This same article also guarantees Article4 2 declares that it is forbidden “to federal government from otherwise infring- freedom of the media, it forbids censorship, gather, store, use, or disseminate information ing the rights that Americans believed they and it guarantees public access to infor- on the private life of any person without his had inherited from English common law. mation. Article 44 guarantees “freedom or her consent.” For instance, the First Amendment of literary, artistic, scientific, intellectual, Article 21 declares that no person shall prohibits the Congress from establishing a and other . . . creative activity.” Article 31 be subjected to torture “or any other harsh religion—i.e., selecting a religion to be of- guarantees the right to assemble peaceably or humiliating treatment,” nor “subjected ficially favored by the federal government, and to hold political meetings, rallies, and to medical, scientific, or other experiments which could be supported by federal taxes demonstrations. Article 33 guarantees the without his or her free consent.” (in other words, money taken from people right to petition the government. Article6 2 guarantees all citizens the right who did not necessarily agree with that Articles9 1 and 32 guarantee the legal to choose their “national identity”—that is, religion). This provision was viewed as a equality of all people. Article 19 commits the right to decide their racial or ethnic af- salutary limit on federal power, but it was not the federal government to be the guarantor filiation (instead of having the government intended to apply to the states. At the time of “the equality of rights and liberties re- decide this). the United States Constitution was adopted gardless of sex, race, nationality, language, Articles 34 and 37 guarantee the right of (and until 1818), the State of Connecticut origin, property or employment status, private enterprise and the right to choose was, in many respects, a theocracy. The residence, attitude to religion, convictions, one’s occupation freely. 8 Alaska Justice Forum 24(4), Winter 2008 Supplement

Article7 3 also guarantees the right to stitution created a federal government that Under Article 81, “[t]he procedure for work under safe and hygienic conditions and was founded on the doctrine of separation of electing the President of the Russian Federa- forbids wage discrimination. It guarantees powers or checks and balances. To imple- tion shall be determined by federal law.” “the right to rest and leisure,” by requiring ment this doctrine, the American drafters Article 95 provides for a bicameral leg- all work contracts to adhere to federal law relied on a legal premise inherited from tislature. I declares that the upper house regarding the maximum work week, days off England—the premise that, in the long run, (the Federation Council) comprises two and holidays, and paid, annual vacation. fairness is ensured by the procedures that representatives from each province and In addition,Article 57 contains an ex post decision-makers must follow, rather than by region—one from the legislative branch facto clause that restricts the government’s the identities of the decision-makers. and one from the executive branch—but authority to tax: “Laws instituting new taxes If you examine the United States Con- it does not further specify their manner of or worsening the condition of tax payers stitutions a it was originally submitted to selection. Similarly,Article 95 declares that shall not have retroactive force.” the states (that is, before the addition of the the lower house (the Duma) consists of 450 Article 27 guarantees freedom of move- Bill of Rights), you will discover that more elected deputies—but, again, it does not ment and residence within the Russian Fed- than half of the text is devoted to matters of further specify the manner of their selection. eration, as well as the right to travel outside procedure—how the Congress, the presi- Instead, the following article (Article 96) the Russian Federation (and to return from dent, and the judges of the federal courts declares that “[t]he procedure for forming these travels). are to be selected and removed from office; the Federation Council and the procedure A series of constitutional provisions the procedural rules under which these three for electing deputies to the State Duma shall guarantee a social safety net to all Russian branches (especially the Congress) are to be established by federal law.” citizens. Article 39 guarantees social se- operate; and the methods for amending the Article 114 enumerates the various curity payments to people in their old age, constitution in the future. powers of the Russian federal government, and it also guarantees payments to people in This emphasis on details of procedure but the last clause declares that the federal financial need because of “disease, loss of a (especially the details regarding the selec- government shall also “exercise any other breadwinner, [or the need] to bring up chil- ftion o senators, representatives, and the powers vested in it by . . . federal laws [or] dren.” Article 40 guarantees a home—that president) is directly attributable to the long the decrees of the President of the Russian is, a place to live—to all citizens, and it tradition of parliamentary government inher- Federation.” requires the government to provide hous- ited from England, as well as the drafters’ Article 128 specifies that the judges of the ing to people who cannot afford it. Article belief that procedural rules would provide Russian Federation’s three highest courts— 43 guarantees all children the right to an a crucial guarantee that the states would not the Constitutional Court, the Supreme Court, education through secondary school and the be overwhelmed by the federal government and the Supreme Commercial (Arbitrazh) right to free higher education if they pass a and that different states and political factions Court—are nominated by the president and competitive entrance examination. would always have their fair opportunity to confirmed by the Federation Council. But all Article 41 guarantees the right to health influence the federal government. other judges in the Russian Federation “shall care and medical services. Article 42 com- The Russian constitution is different in be appointed by the President of the Russian mits the government to provide compensa- this regard. The Russian drafters had no Federation in accordance with procedures tiono t people who have been injured or corresponding tradition of parliamentary established by federal law.” Moreover, who suffer ill health because of violations government and procedural guarantees to Article 121 states that a judge’s powers of environmental laws. draw from—because the preceding seventy may be terminated or suspended “under Article 52 guarantees the rights of crime years of Soviet rule, and the three-and-a-half procedures and on grounds established by victims—both the right of “access to justice” centuries of tsarist rule before that, were federal law.” and the right to receive “compensation for characterized by the arbitrary and dictatorial In other words, the Russian constitution injury.” use of state power rather than legislative rule is much more open-ended on the questions AlthoughArticle 68 declares that Russian and procedural regularity. of how federal officials are to be selected, is the state language of the Russian Federa- Not until 1988—that is, only five years what tenure these officials will have, how tion, this same article also guarantees other before the drafting of the Russian constitu- the federal and provincial/regional govern- ethnic groups “the right to preserve their tion—did Mikhail Gorbachev advocate ments are to be organized, and what powers native language and to create the conditions reforming the Soviet Union into a govern- the federal government will wield. for its study and development.” ment of laws (pravovoe gasudarstva). This Article1 6 guarantees Russian citizens goal—the rule of law—is explicitly embod- * * * that they will not be extradited to another iedn i Articles 1, 3, 11, and 15. The drafters, My aim in this essay has been to compare country, and Article 63 forbids the federal however, were not sure what this rule of law the American and Russian constitutions, but government from extraditing a non-Russian would look like, so they left many important not to assess their relative worth, since each citizen to another country if that person is details to future development. constitution has bequeathed both benefits being persecuted for political views or fac- Thus, for example,Article 77 declares that and problems to the nation that adopted ing prosecution for “actions (or inaction) “federal law”—that is, statutory law—will it. Rather, my hope has been to point out that would not qualify as criminal under the control the “organization of the legislative that each constitution reflects the drafters’ law of the Russian Federation.” and executive [branches of government]” in earnest attempt to address the major po- the constituent provinces and regions of the litical problems confronting their society at The American Emphasis on Procedure Russian Federation. the time. The solutions embodied in each There is one more distinction between 8Article 7 authorizes the executive constitution were shaped by the political, the American and Russian constitutions branch of the federal government to “set social, and economic tools that history and that should be discussed: the American’s up their own territorial structures [i.e., gov- culture had provided to each country. emphasis on matters of procedure. ernmental districts] and appoint respective David Mannheimer sits on the Alaska As explained earlier, the American con- officials [for these districts].” Court of Appeals.