The twentieth-century English philosopher and archaeologist Robin Collingwood held the view that it was impossible to understand a system of thought or analysis fully until one understood what questions the framers of that system were attempting to answer. Collingwood applied this mode of inquiry to philosophical studies, but his method is equally fruitful when the task is to understand the constitutions of nations.
In a general sense, of course, the constitution of every nation addresses itself to the same basic issues:
- How will the government be constituted, and how will authority be distributed within the government?
- How will political power be invested in leaders, transferred to new leaders, and revoked prematurely if need be?
- What will be the relationship between the government and its citizens? In particular, what will be the protected rights of the citizenry and the corresponding limits on the power of the state? And what will be the government’s obligations to its citizens, and the citizenry’s obligations to the government?
- What will be the relationship between the national government and the various sub-levels of government, as well as the government’s relationship with the various cultural, civic, ethnic, and religious groups within society?
- How will the national income and resources be generated, distributed, and regulated?
Sometimes, the answers to these questions will be found in the explicit provisions of a nation’s constitution; sometimes they will be found in what the constitution doesnotsay. And sometimes (as, for example, the United States Constitution’s original provisions regarding slavery), a constitution will either explicitly or implicitly leave important questions unanswered—deferring the resolution of these issues to later political, or even physical, battles.
Whenever a society asks itself such questions, however, the answers are not written on a blank slate. Instead, the political, social, economic, and physical conditions that the society already faces (or expects to face shortly) will ineluctably shape and limit the range of potential answers—that is, the range of answers that are both feasible and acceptable to members of the society.
The constitutions of the United States and the Russian Federation were written half a world and more than two hundred years apart. Despite this fact, the two constitutions appear to be remarkably similar on many levels.
Both constitutions provide a framework for nationwide governance of a diverse group of constituent states or regions that are acknowledged to be sovereign in their own right. Both constitutions establish a federal government with three independent branches—the executive, the legislative, and the judicial. Both constitutions provide for a bicameral legislature: a smaller upper house consisting of two representatives from each state or region, and a more numerous lower house with representatives elected by popular ballot. (Under the original version of the American constitution, senators were not elected by popular ballot; rather, they were chosen by the state legislatures.) Both constitutions reject the English system of direct parliamentary control over the executive branch. Instead, both the American president and the Russian are elected by nationwide ballot, separate from the elections for the legislature; and the president’s authority is designed to be distinct from (and, at times, a counterpoise to) the legislature’s authority.
Yet these surface similarities mask some strong differences—differences in the explicit provisions of the two constitutions and also differences in how seemingly equivalent provisions have been put into practice. These differences are mainly attributable to two factors: the extremely different political problems facing the two nations when they drafted their constitutions and the different political traditions that shaped the drafters’ choices and emphasis.
The American constitution was drafted in 1787. Two hundred thirty years later, we in America often take this document for granted. From a modern perspective, the choices made by the drafters assume an air of inevitability—as if the provisions of the American constitution were self-evident rules for governing a democratic society. We forget that the U.S. Constitution was ratified only after vociferous and passionate debate and that it was forged at a time when many Americans distrusted any effort to establish a stronger central government, when the states often viewed each other as rivals, and when Americans had many differing ideas about how society should be organized.
The Revolutionary War had been fought, not by a true national government, but by the joint effort of thirteen independent states. Although the states had created a national congress and the Continental Army, the separate states retained almost every aspect of fiscal and political sovereignty. Under the existing national charter (the Articles of Confederation), the American national government had no mechanism for settling disputes between the states, no power to tax, very little power to regulate commerce, and essentially no way to engage in foreign policy or to fund a war effort without the active assent of the wealthiest states.
The American constitution was drafted as an arm’s-length agreement among these thirteen newly independent states. The people of these states were clearly linked in interest, and while they recognized the need for national cooperation, especially in matters of commerce and defense, they had just fought a long and costly war to free themselves from a distant king and parliament. They already enjoyed functioning, representative governments in their respective states—and many, if not most, Americans were distrustful of efforts to establish a new, strong, centralized government. Moreover, rivalries and conflicts existed between the small and large states, between manufacturing interests and agricultural interests, between the eastern states and the growing western populations, and between the slave states and the free. Each group feared that their opponents would take control of a new national government and use that power to impose their particular political and economic policies.
To allay these fears and to solve these political problems, the drafters of the American constitution created a federal government whose power was intended to be limited strictly to the enumerated areas of authority. And to try to protect the states and the people from arbitrary or authoritarian use of this federal power, the drafters turned to the French philosopher Montesquieu’s idea of a government containing several competing organs of power—a principle now known to us as the doctrine of “separation of powers”—the system of “checks and balances.”
The drafters of the Constitution of the Russian Federation faced a strikingly different political problem.
Russia was already a nation. The eighty-nine provinces and regions of the Russian Federation had been under a unified political authority for more than one hundred fifty years (first under the tsars, and then under Soviet rule), but in 1993, Russia had just regained its independence from the recently dissolved Soviet Union. The country was undergoing extreme political and economic turmoil, made intolerable by a stalemate between the presidency and the Parliament. Because Russia’s existing constitution (inherited from Soviet days) declared thatboth the president and the Parliament were sovereign, it did not provide a mechanism for resolving their inevitable differences. The people who drafted the Russian constitution in the summer and fall of 1993 were motivated by the threat that the federation would fall apart.
On the other hand, the Russian people had just emerged from seventy years of communist totalitarianism. If the federal government was reconstituted so that it had sufficient strength to hold the country together, there was a danger that newly-won civil and economic liberties would disappear.
The drafters’ response was to craft a constitution that (1) clearly declared or re-affirmed federal supremacy over the constituent provinces and regions; (2) gave the presidency great power— to try to make sure that the government would not again be paralyzed by irreconcilable differences between the executive and legislative branches; and (3) contained numerous explicit guarantees of the civil and economic rights and liberties to be enjoyed by Russian citizens.
Both the American constitution (Article VI) and the Russian (Articles 4, 5, 15, 71, 76, and 77) explicitly provide for federal supremacy within specified spheres of federal authority. Indeed, it is hard to imagine that any federal government could function without such supremacy. The two constitutions, however, define that sphere of federal authority quite differently.
In the U.S. Constitution, the areas of federal supremacy are primarily set forth in Article I, Section 8 (which lists the areas of authority that are affirmatively granted to Congress), Article I, Section 10 (which lists the areas of authority that are prohibited to the states), and Article III, Section 2 (which lists the types of litigation entrusted to the federal courts).In general, these provisions give the federal government pre-eminent authority in matters of interstate and international commerce, national defense, and international relations. They also give the federal courts the power to adjudicate disputes between states and between states and foreign governments. These were the areas where Americans most keenly felt the weakness of the pre-existing confederation and where they perceived the greatest need for a federal government able to enforce a nationwide uniformity of law and policy.
Under the Russian constitution, the federal government is granted a much more expansive role. Article 71 gives the federal government jurisdiction over some four dozen aspects of government, including:
- “regulation and protection of the rights and liberties of [the] citizen;”
- establishing “procedure[s] for the organization and activities” of the three branches of federal government;
- “determining…policy and . . . programs in the fields of state structure, the economy, the environment, and the social, cultural and national development of the Russian Federation;”
- “federal power grids, . . . federal transport, railways, [and] information and communications;” and
- “law courts; the Procurator’s office; [and] criminal [and] criminal procedure . . . legislation[.]”
Moreover, Article 72 of the Russian constitution gives the federal government and the provincial/regional governments joint jurisdiction over many other governmental functions, including:
- “issues [concerning] the possession, use, and management of land, mineral resources, water, and other natural resources;”
- “protection of the environment and ecological safety;”
- “general questions of upbringing, education, science, culture, physical culture, and sports;”
- “coordination of health issues, protection of the family, motherhood, fatherhood, and childhood, [and] social protection including social security;”
- “administrative, . . . labor, family, housing, land, water, and forestry legislation;”
- “[the membership of] the judiciary and law-enforcement agencies, the bar, [and the] notariate;” and
- “establishment of general guidelines for the organization of . . . bodies of state power and local self-government.”
Although Article 72 declares that these foregoing concerns fall within the joint authority of the federal and the provincial/regional governments, Article 76 states that, in these areas of joint jurisdiction, “federal laws shall be issued and, in accordance with them, laws and other regulatory acts of [the constituent provinces, and regions] shall be adopted.” In other words, the federal government’s laws on these matters are controlling.
Both the American and the Russian constitutions provide for a president to be elected by nationwide popular vote, but while the American contains a detailed description of the powers (and the limitations on the power) of Congress, it devotes very little space to defining the authority of the president. The Russian, on the other hand, contains a lengthy description of the powers of the president and very little description of the authority of the Parliament.
The powers of the American president are set forth in Article II, Sections 2 and 3. The president is the commander-in-chief of the armed forces (and of the state militias, “if they have been called into the service of the United States”). In addition, the president has the authority to appoint, with the consent of the Senate, all officers of the federal government (i.e., all officers whose manner of selection is not otherwise specified in the constitution). (Article II, Section 2 allows Congress to enact statutes that eliminate the requirement of Senate approval for specific federal officers and that authorize the “Heads of Departments” or the “Courts of Law” to appoint certain federal officers instead of the president.)
Beyond this, the American president is empowered (1) to require the principal heads of the departments of the federal government to report on any subject relating to their duties, (2) to grant pardons and reprieves, (3) to convene the Congress “on extraordinary occasions,” and (4) to “receive ambassadors and other public ministers [of foreign countries].” The president is also directed to “take care that the laws be faithfully executed.”
In contrast, Article 80 of the Russian constitution declares that the president “shall be the head of state” and “the guarantor of the Constitution . . . and of human and civil rights and freedoms.” The president is directed to “take measures to protect the sovereignty of the Russian Federation, its independence and [its] state integrity,” to “ensure concerted functioning and interaction of all bodies of state power,” and to “define the basic domestic and foreign policy guidelines of the state.”Under Article 83, the president has complete power to appoint all officers of the federal government except the prime minister (an office described as the “Chairman of the Government of the Russian Federation”). Article 83 specifies that the Duma (i.e., the lower house of Parliament) must consent to the president’s choice for prime minister.
However, under Article 111, if the Duma refuses to accept the president’s nominee for prime minister three times in succession, the president is authorized to appoint the prime minister unilaterally, dissolve the Duma, and call for new elections. Similarly, under Article 117, if the Duma gives a vote of “no confidence” in the prime minister’s government twice in a three-month period, the president is given the choice of either dismissing the government or dismissing the Duma and calling for new elections.
Article 85 gives the president the power to suspend the operation of a law “pending the resolution of the issue in the appropriate court” if the president believes that a law passed by a constituent province or region violates the federal constitution or any federal law or that it violates “human and civil rights and liberties.”
And under Article 90, the president is empowered to “issue decrees and executive orders [that are] binding throughout the territory of the Russian Federation,” so long as these decrees and orders “[do] not contravene the Constitution . . . or federal laws.”
The Rights of Citizens
Americans are justly proud of our Bill of Rights—the first ten amendments to the United States Constitution, which deal with issues such as freedom of speech, freedom of the press, freedom from unreasonable government searches and seizures, the right to jury trial, the right to the assistance of counsel and to confront government witnesses in criminal cases, and the right to fair compensation when the government exercises its authority to take private property. The Russian constitution, however, guarantees a far greater array of liberties and rights for its citizens.
It would be a mistake to view the American Bill of Rights through a twenty-first century lens: These ten amendments were not intended to be federal guarantees of individual liberties in the sense that the federal government could enforce these liberties on the states. Rather, when the Bill of Rights was proposed and adopted in the late 1700s, it was seen as a series of restrictions on federal power—measures designed to make sure that the new federal government could do nothing to alter state law on these subjects. It was designed to prohibit the federal government from otherwise infringing the rights that Americans believed they had inherited from English common law.
For instance, the First Amendment prohibits the Congress from establishing a religion—i.e., selecting a religion to be officially favored by the federal government, which could be supported by federal taxes (in other words, money taken from people who did not necessarily agree with that religion). This provision was viewed as a salutary limit on federal power, but it was not intended to apply to the states. At the time the United States Constitution was adopted (and until 1818), the State of Connecticut was, in many respects, a theocracy. The Congregationalist Church was the established church, and all citizens were obliged to support it. No one thought that the enactment of the First Amendment required any change in Connecticut’s state government.
It would take two more centuries—encompassing a civil war, the enactment of the Fourteenth Amendment, and a series of Supreme Court decisions in the 1950s and 1960s—before the Bill of Rights would assume its modern role in American law as a set of federally guaranteed rights and liberties.
In contrast, the Constitution of the Russian Federation explicitly commits the federal government to protect a whole panoply of civic rights and benefits—and not just political and religious rights. The Russian constitution also guarantees the types of economic and social benefits that Russian citizens received (or, at least, were theoretically entitled to) under the socialist framework of the Soviet Union.Many of the rights guaranteed by the Russian constitution correspond to rights that Americans have come to expect under the Bill of Rights.
For instance, Article 14 guarantees that there will be no state-sponsored or mandatory religion, and Article 28 guarantees an individual’s right to practice any religion, “or to profess no religion.” Article 13 guarantees “ideological pluralism;” in other words, it guarantees that there will be no state-sponsored or mandatory political/social ideology (as there was under the days of Soviet rule). Similarly, Article 30 protects the right of association—both political association and economic association (e.g., trade unions). Again, to prevent a return to Soviet practices, Article 30 declares that “[n]o one may be coerced into joining any association.”
Article 29 guarantees “freedom of speech and thought”—although it expressly forbids “[p]ropaganda or campaigning to incite social, racial, national, or religious hatred and strife.” This same article also guarantees freedom of the media, it forbids censorship, and it guarantees public access to information. Article 44 guarantees “freedom of literary, artistic, scientific, intellectual, and other . . . creative activity.” Article 31 guarantees the right to assemble peaceably and to hold political meetings, rallies, and demonstrations. Article 33 guarantees the right to petition the government.
Articles 19 and 32 guarantee the legal equality of all people. Article 19 commits the federal government to be the guarantor of “the equality of rights and liberties regardless of sex, race, nationality, language, origin, property or employment status, residence, attitude to religion, convictions, membership of public associations or any other circumstance.” Article 32 guarantees all citizens equal access to state services and the right to participate in government.
Article 22 guarantees an individual’s right to “freedom and personal inviolability,” and it declares that the government cannot hold a person in custody for more than forty-eight hours without a court order. Article 23 guarantees the right to privacy, and it provides that the government cannot infringe the privacy of “correspondence, telephone communications . . . and other communications” without a court order.
Article 25 states that the government cannot “enter a home against the will of the persons residing in it except under a court order or in other instances provided by federal law.”
Articles 46 and 47 guarantee equal access to the courts as well as judicial protection of citizens’ rights. Article 48 guarantees the right to counsel, and Article 49 guarantees the presumption of innocence in criminal cases. Article 51 guarantees the right against self-incrimination. Article 50 forbids repeated conviction for the same offense, and it also guarantees defendants the benefit of the exclusionary rule: the government cannot rely on “evidence obtained in violation of federal law.” Article 54 forbids ex post facto laws.
Articles 35, 36, and 44 guarantee the right to hold private property (including land and intellectual property) as well as the right of inheritance. Article 35 also guarantees fair compensation for people whose property is taken by the government. And Article 37 forbids forced labor—similar to the American Thirteenth Amendment’s prohibition on “involuntary servitude.”While these constitutionally guaranteed rights are familiar to Americans, the Russian constitution also protects many other rights that are not found in, or at least are not explicitly guaranteed by, the American constitution.
Article 24 declares that it is forbidden “to gather, store, use, or disseminate information on the private life of any person without his or her consent.”
Article 21 declares that no person shall be subjected to torture “or any other harsh or humiliating treatment,” nor “subjected to medical, scientific, or other experiments without his or her free consent.”
Article 26 guarantees all citizens the right to choose their “national identity”—that is, the right to decide their racial or ethnic affiliation (instead of having the government decide this).
Articles 34 and 37 guarantee the right of private enterprise and the right to choose one’s occupation freely.
Article 37 also guarantees the right to work under safe and hygienic conditions and forbids wage discrimination. It guarantees “the right to rest and leisure,” by requiring all work contracts to adhere to federal law regarding the maximum work week, days off and holidays, and paid, annual vacation.
In addition, Article 57 contains an ex post facto clause that restricts the government’s authority to tax: “Laws instituting new taxes or worsening the condition of tax payers shall not have retroactive force.”
Article 27 guarantees freedom of movement and residence within the Russian Federation, as well as the right to travel outside the Russian Federation (and to return from these travels).
A series of constitutional provisions guarantee a social safety net to all Russian citizens. Article 39 guarantees social security payments to people in their old age, and it also guarantees payments to people in financial need because of “disease, loss of a breadwinner, [or the need] to bring up children.” Article 40 guarantees a home—that is, a place to live—to all citizens, and it requires the government to provide housing to people who cannot afford it. Article 43 guarantees all children the right to an education through secondary school and the right to free higher education if they pass a competitive entrance examination.
Article 41 guarantees the right to health care and medical services. Article 42 commits the government to provide compensation to people who have been injured or who suffer ill health because of violations of environmental laws.Article 52 guarantees the rights of crime victims—both the right of “access to justice” and the right to receive “compensation for injury.”
Although Article 68 declares that Russian is the state language of the Russian Federation, this same article also guarantees other ethnic groups “the right to preserve their native language and to create the conditions for its study and development.”
Article 61 guarantees Russian citizens that they will not be extradited to another country, and Article 63 forbids the federal government from extraditing a non-Russian citizen to another country if that person is being persecuted for political views or facing prosecution for “actions (or inaction) that would not qualify as criminal under the law of the Russian Federation.”
The American Emphasis on Procedure
There is one more distinction between the American and Russian constitutions that should be discussed: the American’s emphasis on matters of procedure.
As explained earlier, the American constitution created a federal government that was founded on the doctrine of “separation of powers” or “checks and balances.” To implement this doctrine, the American drafters relied on a legal premise inherited from England—the premise that, in the long run, fairness is ensured by the procedures that decision-makers must follow, rather than by the identities of the decision-makers.
If you examine the United States Constitution as it was originally submitted to the states (that is, before the addition of the Bill of Rights), you will discover that more than half of the text is devoted to matters of procedure—how the Congress, the president, and the judges of the federal courts are to be selected and removed from office; the procedural rules under which these three branches (especially the Congress) are to operate; and the methods for amending the constitution in the future.This emphasis on details of procedure (especially the details regarding the selection of senators, representatives, and the president) is directly attributable to the long tradition of parliamentary government inherited from England, as well as the drafters’ belief that procedural rules would provide a crucial guarantee that the states would not be overwhelmed by the federal government and that different states and political factions would always have their fair opportunity to influence the federal government.
The Russian constitution is different in this regard. The Russian drafters had no corresponding tradition of parliamentary government and procedural guarantees to draw from—because the preceding seventy years of Soviet rule, and the three-and-a-half centuries of tsarist rule before that, were characterized by the arbitrary and dictatorial use of state power rather than legislative rule and procedural regularity.
Not until 1988—that is, only five years before the drafting of the Russian constitution—did Mikhail Gorbachev advocate reforming the Soviet Union into a government of laws (pravovoe gasudarstva). This goal—the rule of law—is explicitly embodied in Articles 1, 3, 11, and 15. The drafters, however, were not sure what this rule of law would look like, so they left many important details to future development.
Thus, for example, Article 77 declares that “federal law”—that is, statutory law—will control the “organization of the legislative and executive [branches of government]” in the constituent provinces and regions of the Russian Federation.Article 78 authorizes the executive branch of the federal government to “set up their own territorial structures [i.e., governmental districts] and appoint respective officials [for these districts].”
Under Article 81, “[t]he procedure for electing the President of the Russian Federation shall be determined by federal law.”
Article 95 provides for a bicameral legislature. It declares that the upper house (the Federation Council) comprises two representatives from each province and region—one from the legislative branch and one from the executive branch—but it does not further specify their manner of selection. Similarly, Article 95 declares that the lower house (the Duma) consists of 450 elected deputies—but, again, it does not further specify the manner of their selection. Instead, the following article (Article 96) declares that “[t]he procedure for forming the Federation Council and the procedure for electing deputies to the State Duma shall be established by federal law.”
Article 114 enumerates the various powers of the Russian federal government, but the last clause declares that the federal government shall also “exercise any other powers vested in it by . . . federal laws [or] the decrees of the President of the Russian Federation.”
Article 128 specifies that the judges of the Russian Federation’s three highest courts—the Constitutional Court, the Supreme Court, and the Supreme Commercial (Arbitrazh) Court—are nominated by the president and confirmed by the Federation Council. But all other judges in the Russian Federation “shall be appointed by the President of the Russian Federation in accordance with procedures established by federal law.” Moreover, Article 121 states that a judge’s powers may be terminated or suspended “under procedures and on grounds established by federal law.”
In other words, the Russian constitution is much more open-ended on the questions of how federal officials are to be selected, what tenure these officials will have, how the federal and provincial/regional governments are to be organized, and what powers the federal government will wield.
* * *
My aim in this essay has been to compare the American and Russian constitutions, but not to assess their relative worth, since each constitution has bequeathed both benefits and problems to the nation that adopted it. Rather, my hope has been to point out that each constitution reflects the drafters’ earnest attempt to address the major political problems confronting their society at the time. The solutions embodied in each constitution were shaped by the political, social, and economic tools that history and culture had provided to each country.
This article uses the English translation of the Constitution of the Russian Federation from the Bucknell University website: http://www.departments.bucknell.edu/russian/const/constit.html. A longer version of the article, with a list of references, is available at http://justice.uaa.alaska.edu/forum/24/4winter2008/a_constitutionfull.html.
David Mannheimer sits on the Alaska Court of Appeals.