A new country has just been established. Brian, you are drafting the new constitution for that country. What are your thoughts?

If you wanted to maintain stability in the country, would you recommend the adoption of a constitution similar to the 

  1. United States Constitution or the British Constitution or another type of Constitution? 
  2. What would be the essential elements of your country’s proposed Constitution?

    In answering this question, please incorporate our readings from the first two weeks as well as any outside readings or research that you conducted.

To assess what type of constitution should be established, I guide my decision on the goal of maintaining stability in the new country, as well as to provide equal protections, rights and opportunities to all citizens. It seems that in order to accomplish these goals, a constitution similar to the United States Constitution should be established. [1]

My decision is based on an analysis of the issues presented in the fact pattern and measures to employ in a new constitution to mitigate the negative effects of those issues. To illustrate, the fact that there is an oil-rich north and several large cities in the south is problematic since the enormous wealth from the oil rich areas would translate into an economic and subsequent regional political monopoly which overpowers the rest of the nation. If we do not act to put mechanisms in place to distribute political power across the nation, the national interests will reflect the interest of the north and this will lead to the non-fulfillment of the needs of the people, causing national unrest and instability. [2] To deal with this problematic issue, an essential element of the new constitution would be to form a democratic government by the people and for the people, where the majority rules. Because of this element, language similar to Article I, section 2 provisions of the U.S. Constitution would be included, whereby the people of each state are allocated congressional representation based on populations and not wealth. [3] 

Next, I must consider the different ethnicities and cultural differences in the northern and southern regions. Understanding that not only must I consider the separate interests of the current established ethnic groups, I must also foresee future ethnic and cultural diversification of the national populous. Because of this and with the goal of maintaining stability in the country, as well as to provide equal protections, rights and opportunities to all citizens, I would need to establish constitutional clauses mirroring the U.S. Constitution’s First Amendment provisions. [4] These provisions would insure that the national government does not discriminate against any ethnic or cultural group by giving every citizen the right to free speech as well as to not sanction any religious belief or practice. The value of abstaining from State support of a religion is evidenced in the court’s rationale in Torcaso. In Torcaso, the State of Maryland required a declaration of one’s belief in a God in order to hold a public office. The implication of such a requirement is that to require one to state a belief in a God opened the door to empowering political and religious forces to (1) Insert religion into the functioning of the government and (2) to open the door for political and religious forces to dictate a particular religion that the State would prefer. In our fact pattern, this would mean that at some point, one of the three ethnic groups might possibly have their religion become the State’s preferred religion. This would lead to discrimination because if the north’s religion was sanctioned and a person from the south wanted to hold office, such a person would be required to declare his belief in the God of the north, versus the God of the south which he truly believes in. This situation would present two problems. It would serve to exclude all who refused to declare belief in the God of the north, or it would present political opponents of the candidate to attempt to impeach the candidate based on the knowledge that his true belief is not the belief he has declared to enter into office. 

When considering the polarization of the different ethnic groups due to colonization and the civil war, I would need to set the country on a path of stability by instituting the new national constitution as the supreme law of the land. This gives each different cultural and ethnic group a common set of laws that must be followed regardless of ethnic affiliation, cultural, religious or political beliefs. However, including provisions giving rise to State sovereignty where the citizen is first recognized as a national citizen, then as a state citizen, would allow states to enact legislation reflecting the sentiments of the region as long as the legislation does not violate the national constitution. The benefits of including such a provision which would greatly contribute to the stability of the nation are evidenced in Obergefell. [6] In Obergefell, States enacted legislation that was in conflict with federal constitutional provisions. The supremacy clause demanded that when a state law violated the federal constitution, that law could not be enforced. [7] Because of this clause, the citizen was assured that rights granted under the constitution could not be trampled upon by states. Being able to rely on constitutional provisions greatly contributes to the stability of a nation.

The issues of the tension during colonization and the fear of reprisals against those who supported the colonizers would be dealt with by instituting the right such as the civil rights enjoyed by Americans. This would make it a crime to perform certain discriminatory acts against those who supported the colonizers. In addition, full faith and credit provisions would be included so that citizens would enjoy certain rights and privileges in their home states would have the right to enjoy those privileges if they decided to move to another jurisdiction.

I would also address the differences in language by adapting a national language that the new government would use to transact its business but citizens would remain free to communicate in any language that pleases them. The rational for this is that the government must exhibit uniformity which is intended to instill a notion in the populous that we must begin to forward and together as a country, instead of remaining in a secular, regional mindset. 

[1] U.S. Const.

[2] Emmy Godwin Irobi, Ethnic Conflict Management in Africa: A Comparative Case Study of Nigeria and South Africa Beyond Intractability (2005), http://www.beyondintractability.org/casestudy/irobi-ethnic (last visited Jul 28, 2017).

[3] U.S. Const. art. I, § 2.

[4] U.S. Const. amend. I.

[5] Torcaso v. Watkins, 367 U.S. 488 (1961).

[6] Obergefell v. Hodges, 135 S. Ct. 2071, 576 U.S., 191 L. Ed. 2d 953 (2015).

[7] Id.