A New Birth for Ukraine: A Constitutionalist Manifesto

Diversi in unitate

Ukraine will win the war with the terrorist state Russia, but will it win the peace?

Ukraine is fighting a war for humane values and against authoritarianism, on behalf of its citizens and the rest of the world.  When the victory is finally achieved, Ukrainians will deserve a long rest—but we will not get one.  As the experience of the rest of the world has shown, war brings enormous changes that are often hard to discern when people are in the midst of them.  Those changes will bring daunting new challenges, and they will come quickly. If Ukraine is ready for those challenges, it can bring a better future for all, the future for which brave Ukrainians are fighting and dying right now.  But if we are not ready, we may find that the future will be dark, and victory will not be much better than defeat would have been.

In order to meet those challenges, Ukraine will need a new social consensus, and that new consensus will need to be embedded in a new constitution. In many ways, the war is a new birth for Ukraine: a moment when all Ukrainians pull together to defend their homeland.  We have been required to reflect on what Ukraine stands for, on what our country demands of us, on what it means to be Ukrainian, and on the cause for which so many have been fighting and dying.  The war is not being fought simply to control our territorial integrity; it is, instead, being fought for principles and values—ultimately, for civilization. So a new social consensus is being born, a new social contract being written.  And in order to endure, that new consensus must be codified in a new fundamental law.

1. A New Social Consensus

After the war, Ukraine will face several pressing challenges.

First, even before the war, few Ukrainians were happy with the state of their politics.  We elected politicians with high hopes, only to find that they rarely lived up to expectations.  Government mostly served the well-connected; corruption was rampant; and no politician was ever able to maintain a high level of popularity.  As a result, Ukrainians came to distrust the system and turned away to find fulfillment in their private lives, with friends and family, away from politics.  But the consequence was that the political system became less and less responsive to the needs of ordinary Ukrainians.

A new social consensus will be necessary to give Ukrainians reason to trust their political system.

Government was so unresponsive because of the over-concentration of power.  Those with power were largely insulated from popular pressure so they could help themselves and largely ignore the needs of ordinary people.  In particular, power was over-concentrated in the oligarchs and other shadowy figures, in the office of the presidency, and in the central government in Kyiv, though Ukraine made important strides in decentralization.  But perhaps the greatest reason for the over-concentration of power was simply habits of mind:  powerful people were able to dominate politics because people expected that things just worked that way.

A new social consensus will be necessary to give Ukrainians reason to believe

• that they can demand that government answer to them, not to the demands of a select few.
• and that power will not inevitably remain over-concentrated in Ukraine.

Since the start of the war, power has become ever more concentrated, for several reasons.  The reasons include:

• The announcement of martial law,
• A crisis mentality,
• A rentier economy,
• Pressure from international actors,
• The inevitable need for decisive action during wartime.

It may be that during wartime, it has been necessary to concentrate power in this way.  But when peace comes, it will be vitally important to deconcentrate power.  In order for that deconcentration to occur, people will need to shift their thinking from wartime thinking to peacetime thinking.

A new social consensus will be necessary to give Ukrainians a vision of the country that is focused

• on the good things that the future can offer, which will require calm reflection,
• rather than on the dangers of war that demand concentration of power.

Finally, at the same time that Ukraine will be facing an over-concentration of power, it will also be facing new social divisions:

• We will have to re-integrate areas in the East and South. Those areas have spent many years under Russian occupation, subject to daily Russian propaganda.
• We will have to reintegrate brave heroes returning from the front, whose lives have been severely disrupted and many of whom will be suffering from trauma.
• We will have to reintegrate those people who, though not soldiers, have suffered their own form of trauma and economic dislocation.

Ad there will be many other kinds of division that we cannot now anticipate.  During wartime, people submerge their differences in order to resist the enemy, and Ukraine is right now magnificently unified in the war effort.  But when peace comes, the divisions will reappear.  The challenge is therefore to use the wartime unity as a springboard for developing a unifying vision, a springboard for a new social consensus.

Any unity that will endure must be inclusive:  it must seek the common ground underlying our differences.  Rather than trying to suppress those differences, it must celebrate them as different but equally legitimate ways of being Ukrainian.  Unfortunately, after war, people often feel threatened by difference; trapped in the mentality of wartime, they view the re-emergence of divisions as akin to treason.  And as a result, many hope that a strong leader and strong government will repress those whom they view as dangerously deviant.

The re-emergence of social divisions thus reinforces the danger of the over-concentration of power.  In turn, the over-concentration of power will reinforce the danger of social divisions, because trying to repress difference typically only exacerbates it.

A new social consensus will be necessary to give Ukrainians a sense of unity that does not suppress difference or depend on resistance to a common enemy.

2. A New Constitution

A new social consensus will thus depend on a new politics, one that gives Ukrainians

• reason to trust their political system,
• reason to believe that they can demand that government answer to them, not to the demands of a select few,
• a vision of the country that is focused on the good things that the future can offer.
• a sense of unity that does not suppress difference or depend on resistance to a common enemy.

Realizing these dreams will require the right constitution.  The constitution is both cause and effect of the new social consensus:  it must create the conditions that will allow for the new consensus, and it must reflect the content of the new consensus.

a. The Constitution as Cause

In the long run, Ukraine will be able to develop a new social contract only if its politics are right.  If Ukraine’s politics are full of distrust, alienation and indifference, pessimism, and disunity, the it will be very difficult to develop a new social consensus.  But if Ukrainians trust the system, if the government is responsive to people’s needs, if the system gives hope for the future and brings people together, then Ukraine may see a glorious new birth.

Ultimately, the politics of a country depends on its constitution, which allocates power and structures government.  When people are unhappy with their politics and their politicians, the reason is often that the constitution is the wrong one for that country.  In this sense, the constitution is not a technical, arcane document relevant only to legal professionals.  And it cannot be assessed in the abstract:  a constitution is good if but only if it generates good results in a particular country at a particular time.

In that sense, the constitution affects everything that happens in a country, and it is relevant to all of the problems facing ordinary people.  Many people say that they are worried about health care or education or infrastructure or environmental degradation, rather than the constitution.  But in fact, the structure of the constitution often gives rise to those problems, and it blocks efforts to ameliorate them.  The reason is that problem-solving requires a government that is aware of problems, incentivized to do something about them, and able to find effective solutions.  But when power is over-concentrated, governments instead serve largely to serve the interests of those in power.

In consequence, voters often go to the polls believing that if only they can elect the right politicians, then their problems will be solved.  Their hopes, however, are usually dashed—because government will never perform better unless and until the constitution lays the groundwork. As a result, the new politicians always seem to be very like the old politicians.  We will get better government only when we change its structure.

Because constitutions seem technical, many people do not see the linkage between their ordinary lives and the constitutional structure.  Even many legal professionals insist that our current constitution is beautifully made.  And indeed, the constitution is well drafted, well written, well organized—from a purely technical point of view.  But when Ukrainians find themselves struggling with daily problems for which politicians cannot or will not find solutions, then something is wrong substantively with the structure of the constitution.

Some may believe that the constitution creates an ideal structure of power for Ukraine, but the problem is that no-one pays attention to the constitution.  In other words, the law on the books is good, but it is not the lived law of the land—so if we only enforce the constitution that we have, all will be well.

The problem with this view is that a constitution that powerful people can freely ignore is, by definition, a bad constitution.  The whole purpose of a constitution is to structure power and incentives.  Powerful people ignore the constitution when they have the power to do so and no incentive to follow it—in other words, when power is over-concentrated.  Our constitution will therefore continue to be a nullity until we change it to create the conditions for effective enforcement.

b. The Constitution as Effect

If Ukrainians develop a new social contract, rooted in trust, hope, and unity, they will naturally want to see those ideas reflected in their fundamental law.  When, after the war, Ukrainians develop a new social consensus, it is to be hoped that they will remain committed to it, keeping it always fresh in their minds.  But, inevitably, life will return to normal, as people go back to their customary lives, and memories will fade.  When that happens, it is important that the commitments and views of the new social consensus be given long term protection in a constitution.  Indeed, this is one of the primary purposes of a constitution:  to remind people of their deepest beliefs and highest ideals.

At this stage, it is important not to prescribe or even advocate for what the new constitution will mandate:  that task is for the people of Ukraine to decide.  In order for the people to make those decisions, the process will need to be open and as participatory as possible.  It will certainly need

• many, carefully recorded public hearings,
• constitutional discussion groups or clubs in every city and town,
• perhaps, an elected constituent assembly,
• sensitive expert advice,
• and a referendum.

Opening the process to the people in this way will help to ensure that the constitution does reflect the new social consensus, rather than a political deal between elites.  But it will also serve another goal:  the process of writing a constitution can itself be part and parcel of developing a new social consensus.  When people talk about the type of government that they want to have, they are inevitably talking about the kind of country that they want as well—its ideals and , its fears, its power structures, the responsibilities of its government and its citizens, its ideas of freedom, individual rights, and democracy.  The process of writing a constitution, therefore, can bring people together in a vigorous, active discussion about our future—the new social consensus, which will see us through to a better future, the future for which we all now so fervently yearn.

Together, the new social consensus and the new constitution might be imagined to be the New Social Contract.   The purpose of this project, therefore, is to explore how Ukraine might arrive at such a New Social Contract.  No work could be more important for our future, and that work must begin now, with us.

SIGNATORIES

June 25, 2023

Lviv, Ukrainian Catholic University

Bishop Borys (Gudziak), President of the Ukrainian Catholic University, Archeparch and Metropolitan of Philadelphia for the Ukrainian Catholic Church in USA

Myroslav Marynovych, vice-rector of the Ukrainian Catholic University, a founding member of the Ukrainian Helsinki Group

Oleksandra Matviichuk, laureate of the Nobel Peace Prize 2022 and the head of the Center for Civil Liberties

Yaroslav Hrytsak, Doctor of Historical Sciences and professor of the Ukrainian Catholic University

Ganna Yudkivska, judge of the European Court of Human Rights in respect of Ukraine (2010-2022), member of the United Nations Working Group on Arbitrary Detention

Tetiana Gavrysh, managing partner of the “ILF” Law Company, leader of the Kharkiv expert group for medical reform support, honorary consul of the Federal Republic of Germany in Kharkiv

Gennadiy Druzenko, Chairman of the Board of the Center for Constitutional Design, co-founder and Chairman of the Pirogov First Volunteer Mobile Hospital

Larisa Ivshina, Ukrainian journalist, the Editor-in-Chief of the Day newspaper

Ihor Lutsenko, soldier of the Armed Forces of Ukraine

Yosyf Zisels, member of the “First of December” Initiative Group

Volodymyr Yermolenko, philosopher, President of the Ukrainian PEN

Svitlana Khyliuk, director of the law school at the Ukrainian Catholic University i

David Williams, John S. Hastings Professor of Law at Indiana University Maurer School of Law, head of the Indiana University Center for Constitutional Democracy