PostCommunist Charters of Rights in Europe and the U.S. Bill of Rights

I INTRODUCTION The Bill of Rights of the United States Constitution served as both a model and anti-model (1) for the constitutionalization of citizens' rights in the new democracies emerging after the fall of communism in Central and Eastern Europe ("CEE"). The U.S. Bill of Rights served as a model at a general, abstract level, similar to the way in which it provided an example to Western European countries after the Second World War, thereby informing the "new constitutionalism" in Europe. (2) In contrast to traditional European constitutionalism, this new approach was influenced by three ideas that had long been commonplace in U.S. constitutionalism. First, a constitution cannot confine its scope to the regulation of the vertical and horizontal separation of powers; it is incomplete without an explicit written statement of citizens' rights that cannot be transgressed by any agent to whom the Constitution applies. (3) Second, the provisions of the constitutional charter of rights apply directly to all state bodies4 regard less of statutory implementation; these constitutional rights are cognizable and enforceable by courts. Third, to be meaningful and truly paramount, constitutional rights should be a basis for declaring subconstitutional provisions invalid in cases of inconsistency. These three principles, whose U.S. pedigree is undisputed, have generally been accepted in the constitutional designs of transitional postcommunist states. (5) The attractiveness of these principles is not surprising: After a period of sham constitutions and charters of rights, constitution-makers in postcommunist countries needed firm doctrinal bases to convince their audiences-societies liberated from authoritarian regimes marked by high degrees of legal and constitutional nihilism--that their democratic and institutional commitments were genuine. Hence the appeal to a conception of constitutional rights that is as robust as possible--with rights having a firm textual anchor, being directly applicable to the people, and overriding lower laws in cases of inconsistency--becomes extremely appealing. Yet the U.S. Bill of Rights is also an anti-model. When it comes to specific provisions of constitutional design as opposed to general, postcommunist constitution-makers have been much more inspired by post-Second World War European (continental) constitutionalism, with the German, French, and Italian constitutions serving as the more obvious prototypes of constitutional rights formulations than the U.S. example. Some reasons for this are obvious: The postcommunist GEE societies have much more in common with regard to tradition, culture, and social structure with Western Europe than with the United States. These similarities naturally extend to constitutional and legal culture as well. One obvious difference between the United States and Western Europe is the relatively low status of, and trust in, the judiciary in Europe, in contrast to the elevated position and prestige of the bench in the United States. (6) This institutional difference has a strong effect upon the character of a constitutional charter of rights. The abstract nature and ambiguous language found in provisions of the U.S. Bill of Rights is seen by many U.S. lawyers as a virtue. (7) This high level of generality is well suited to a legal environment led by powerful and revered judges, endowed with the duty to translate vague and general statements into specific articulations of fights. Conversely, the lower the prestige and authority of judges collectively, the greater the emphasis constitution-makers place on framing constitutional rights as specifically as possible, with as narrow a margin of discretion for interpretation. Since judges, including judges of constitutional courts, are viewed with less trust in GEE countries than in the United States, it was clear to many drafters that the European approach to a constitutional charter of rights--attempting to enumerate all possible restrictions upon constitutional fights in the constitutional text, rather than leaving the task to judges (8)--was preferred. …