Stardate 20040310.1200

(On Screen): I have been reading the Iraqi Constitution which was signed on Monday. It is not perfect by any means; there are aspects of it would could conceivably lead to trouble later. But taken as a whole I think it is an astounding piece of work, subtle and powerful and extremely well crafted.

There are always challenges facing any group engaged in writing a constitution. In the case of the US framers working in Philadelphia in 1787, one of the most important was big-state/small-state. How would seats in the legislature be allocated? If they were proportional to population, small states feared becoming vassals of the large states, unable to influence the government. But if seats were allocated equally per state, citizens in big states would quite naturally feel resentment at having their votes diluted.

This is an example of two natural risks facing any democratic system, which are known as the tyranny of the majority and the tyranny of the minority. If the system goes all the way and gives full power to majority rule, then the majority may use the system to seriously infringe the rights of dissenting minorities, whether they be ethnic, religious, political or life-style. On the other hand, if the system goes too far in the direction of giving such minorities the ability to block governmental action, they can gain the power to extort concessions from the majority by paralyzing the system if they don't get what they want. Finding a balance between these two has always been difficult, and there is no ideal solution.

In 1787 it was a question of the power which would be granted to minority states. If there was no concession to them at all in allocation of legislative power, they feared tyranny of the majority states. But if too many concessions were made to them, the majority states feared tyranny of the minority states.

Regardless of which was proposed, there was significant chance that the resulting constitution would fail to be ratified. The paramount requirement above all others was to write something which could actually be implemented, which couldn't happen without ratification. So to deal with that problem, the framers ended up compromising by doing both. They created two legislative bodies instead of one, and made representation in the House proportional to population, while giving exactly two seats to each state in the Senate. All bills were required to pass both chambers (though the Senate was given some other powers not shared by the House).

There are many virtues to this solution. Neither big states nor small states have the upper hand, since legislation must pass both chambers. It also maintained the balance between big and small states as the nation grew, and as the populations of some states rose faster than others. But it isn't perfect. (For one thing, it is inherently vulnerable to a certain degree of manipulation via gerrymandering of House Districts.)

Its primary virtue is the fact that it was acceptable to both big states and small states in 1787, permitting the constitution to be ratified.

The European effort to create an EU constitution faces exactly that same challenge, but they are trying to deal with it in an entirely different way. The EU Parliament as proposed consists of a single chamber, and the number of seats allocated to different states is being negotiated, with such states as Poland and Spain demanding more seats than simple demographic numbers would justify. That in turn leaved high-population states such as Germany demographically underrepresented. That was the particular stumbling block which caused the process to stutter and stall late last year, since the numbers of seats demanded by small-population states were unacceptable to high-population states.

But even if agreement could be found for such an allocation, there would be problems long-term. Demographic projections of birth and death rates suggest that the population of some states in Europe will decline in the next hundred years, while others are expected to grow. However, that doesn't take into account population mobility or immigration, and in fact we can't possibly predict the populations of various nations in Europe a hundred years from now. If the number of seats per state is fixed now, will it make less and less sense as time goes on? And if seats are allocated now but the allocation is not fixed, then just how would seats be reallocated later, if not proportional to population?

The Europeans tried to use a semantic solution: they directly addressed the issue and tried to solve it by explicitly allocating the number of seats among the states based on the political situation and population numbers as they exist now.

The American solution was structural; it did not directly address the issue, but rather set up a structure under which the issue ceased to be a threat to the system. It is inherent in a federal system that there will always be tension between large states and small states and there still is such tension, but the American system deals with that tension even though no one in 1787 could possibly have predicted which states would be big and which would be small. As of the 2000 census, the most populous state in the US is California and the least populous is Wyoming, neither of which even existed in 1787.

It isn't possible to completely avoid semantic solutions, and the US Constitution contains many. But in nearly every case they addre