Happy Anniversary to History’s Second Constitution

On this day in 1791, the Polish-Lithuanian Commonwealth—one of the largest and most powerful countries in Europe—adopted the first written national constitution in Europe, and only the second in the world, after the U.S. Constitution just two years earlier.

Like its counterpart across the Atlantic, Poland’s constitution—titled the Governance Act and known simply as the Constitution of 9 May 1791—was influenced by the Enlightenment, the European intellectual movement that, among other things, pioneered concepts like civil liberty, individual rights, religious and political tolerance, and so on.

The first page of the original 1791 constitution.

Remarkably, despite the vast geographic distance between the two countries, Poland’s constitutional structure was markedly similar to that of America: There were three branches of government—legislative, executive, and judicial—with checks and balances, a bicameral legislature, and a cabinet of ministers. The constitution declared that “all power in civil society [should be] derived from the will of the people” and defined the role of government as ensuring “the integrity of the states, civil liberty, and social order shall always remain in equilibrium. While Roman Catholicism was recognized as the “dominant faith”, freedom of religion was guaranteed—a remarkable proposition in a continent where people regularly killed each other for being the wrong Christian or simply holding the wrong doctrine.

The people of Poland-Lithuania were defined not as “subjects” of a king, but “citizens” with popular sovereignty—which included townspeople and peasants, who in most of Europe had no such recognition. The right to acquire property, hold public office, and join the nobility—whose powers and immunities were restricted—was extended to millions more people, including Jews (who almost everywhere else were denied anything akin to legal recognition, let alone political rights).

The new constitution even introduced a version habeas corpus—the core legal right that prevents abuse of power—known as Neminem captivabimus, summarized as “We shall not arrest anyone without a court verdict”.

The Constitution of 9 May 1791, an idealized portrayal of the constitution’s adoption, by Polish artist Jan Matejko. It was painted to commemorate the 100th anniversary of its adoption.

To be clear, the Constitution of 9 May 1791 had its limits, and its radicalism should not be overstated. The monarchy was still retained, with the king serving as head of the executive branch. Religious minorities such as Jews, as well the peasants who made up the vast majority of the population, still had few powers. While constrained, the nobility was not abolished as in the U.S. and later France, and in fact still retained many privileges.

But even in these areas, the Commonwealth went farther than almost any other country in the world at the time. The monarchy was not absolute: The king’s powers were constrained by the constitution and essentially shared with a council of ministers, who could overrule his decrees, forcing him to go to parliament. While peasants and Jews had few rights, they now had official protection from abuse—a step closer to recognizing their political rights, well beyond what was normal at the time. Eligible middle-class people could even join the ranks of nobility, a seemingly paradoxical form of progress that, again, was unusual for the time; nobles certainly couldn’t ride roughshod over commonfolk as they did elsewhere in Europe (which isn’t to say there weren’t abuses—this is still feudal Europe after all).

In any event, the Constitution of 9 May 1791 was a relatively bold and momentous step in the right direction, as evidenced by its rarity at the time—and sadly, by its short existence. In fewer than two years, the Polish-Lithuanian Commonwealth would be extinguished by the absolute monarchies of neighboring Prussia and Russia, which felt threatened by the constitution and the dangerous “revolutionary” ideas it introduced and could spread. Poland would cease to exist for well over another century, with its experiment never being fully tested—but also never dying off entirely, as the then-ongoing French Revolution and subsequent political reverberations would prove.

German Policing

The national discussion on U.S. policing has me thinking about my semester seminar with Leipzig University, where we worked with German law students to do a comparative analysis on each country’s approach to certain policies and legal issues. I’ve also been to Germany a few times and seen firsthand how police operate and are regarded.

Like so much else in Germany, law enforcement is heavily shaped by the past. As in every authoritarian state, the police were a key instrument of Nazi oppression. Cops spied on and arrested political enemies, deported Jews, guarded ghettos, and helped kill more than a million people on the eastern front.

Ironically, some of the postwar reforms of German policing was also influenced by the Allies, including the United States. Since Germany is a federal constitutional republic much like our own, and relatively large and diverse, it offers a fairly good point of comparison. Here are some key points:

➡️ There is no German FBI. Law enforcement is handled at the state level but with similar national standards The closest equivalent—the delightfully named Office for the Protection of the Constitution—cannot make arrests, has limited surveillance powers, and all its actions can be challenged in court or by any German citizen. It is also banned from exchanging information with police except through a dedicated counterterrorism forum.

➡️ Before they even start, police applicants must pass personality and intelligence tests. Cops usually endure up to two and a half years of training, whereas U.S. training can vary wildly from 11 weeks to eight months (the latter being the average). In addition to weapons training, German police are required to visit a concentration camp; take classes in law, ethics, and police history; and learn techniques in deescalation and nonlethal force.

➡️ German police officers do not handle minor infractions like parking tickets nor respond to calls about noise and the like. Non-emergencies are handled by unarmed but uniformed city employees. (This was an idea of the Allies, who wanted to “demilitarize and civilize police matters”.)

➡️ Controversially, German police have what is known as a “monopoly of force”. Gun ownership in Germany is low—with about 5.5 million private firearms, mostly for hunting and sport—and shootings are thus rare. Fewer guns on the streets means officers feel less threatened and are less likely to pull out their weapons or respond with force. Moreover, violence is generally frowned upon in German society; the head of Berlin’s police forced noted that “even drawing a gun can lead to a police officer requesting psychological support.”

➡️ Regardless of the reasons, the use of weapons, let alone fatal police shootings, is rare in Germany. In 2011, German police fired only 85 bullets in total; in the U.S., 84 shots were fired at just one murder suspect in NYC. In 2018, German police fatally shot 11 people and injured 34; in the U.S., with a population four times Germany’s, over 100 times as many people (1,098) were killed by police. One state alone, Minnesota, saw 13 fatal shootings—two more than all Germany (with 88 million people versus Minnesota’s 5.6 million).

➡️ Of course, German law enforcement, like any human institution, is not perfect. Some have questioned whether the country’s approach is too passive, especially in the face of terrorism and political violence. There have been plenty of scandals concerning excessive violence, particularly towards immigrants; hence the country recently had the biggest protests regarding racism outside the U.S.

As one German police academy instructor advised, the most important lesson is that institutions like the police cannot change unless a society’s values change with it. “The police are a mirror of society. You cannot turn the police upside down and leave society as it is”.

Germany Commences the First Yazidi Genocide Trial

It is fitting that Germany should lead the way in prosecuting and trying alleged perpetrators of the horrific genocide against the Yazidis in Iraq. According to Just Security:

On April 24, 2020, six years after the Islamic State (IS) began persecuting and exterminating the Yazidi, the first ever trial addressing genocide against the religious minority will commence in Frankfurt am Main. In this case, as in the first case addressing state torture in Syria against two former Syrian intelligence officers whose trial started in Koblenz today, the complications of prosecuting mass crimes in third states collide with the long-awaited hope for accountability.

Iraqi national Taha Al J. is accused of having trafficked human beings for the purpose of labor exploitation and having cruelly killed a person as a member of IS. The suspect is charged under the Code of Crimes Against International Law (CCAIL) – the 2002 implementation of the Rome Statute into German criminal law – for acts of genocide, crimes against humanity, and war crimes.

The article gets into the grim details of the charges, but suffice it to say that they are deeply disturbing. The brutal campaign against the Yazidis has claimed thousands of lives, forced tens of thousands more from their ancient homeland, and has left an estimate 3,200 women and girls in sexual slavery. Even with Islamic State on the retreat, justice for the Yazidis and other victims remains elusive—hopefully not for long.

It is a testament to Germany’s commitment to international justice that it has implemented the principle of universal jurisdiction, in which a country or international organization (such as an international court), claims criminal jurisdiction over someone regardless of where the crime occured and whether the individual has any relationship. The idea is that some crimes are so serious, such as genocide or crimes against humanity, that they are inherently international in nature—they harm humanity as a whole and should not be tolerated.

As Just Security notes, the trial is remarkable for several reasons. Aside from being the first to address the crimes against the Yazidis, it is also the first trial to take place under universal jurisdiction, and to charge the crime of genocide under the CCAIL, which was enacted 18 years ago. Here’s hoping it isn’t the last.

Switzerland’s Fascinating Constitution

On this day in 1848, Switzerland drafted its first constitution, which created a federal system of government inspired partly by the United States and partly by France — two countries with very different approaches to republican governance.

While most of Europe was experiencing revolutionary uprisings, the Swiss set up system that officially abolished the nobility, established a bicameral legislature called the Federal Assembly (like our House and Senate), and combined centralized authority with significant autonomy for states and cities (the Swiss equivalent to a U.S. state is called a canton).

Thus, Switzerland—which even in the 13th century had set up a quasi-federal form of government—became one of history’s oldest constitutional republics. Federalism became, and remains, a key unifying ideal for a people divided across different languages, religions, and regional identities (since mountainous countries are notoriously fragmented).

But the Swiss model differed from America’s in two keys ways.

First, their constitution required every amendment to be approved by referendum, i.e. the popular vote. The Swiss balanced representative institutions with what they called “popular rights”: The parliament would do its job, as in any other republican system, but the people could keep them in check.

Second, the constitution had a clause stating that it could be completely rewritten if it was deemed necessary, thus enabling it to evolve as a whole instead of through piecemeal amendments. Thus, when the Industrial Revolution brought about various social and economic challenges (as it did in the U.S. and elsewhere), the Swiss responded in 1891 with a modified constitution that, among other things, allowed the people to initiate and approve constitutional changes themselves, while giving the federal government more responsibility for national security, trade, and the economy.

Direct democracy and federalism remain hallmarks of Swiss political and cultural identify. Swiss citizens may challenge any law passed by parliament if they gather 50,000 signatures against the law within 100 days. Then a national vote is scheduled where voters decide by a simple majority whether to accept or reject the law. Alternatively, any eight cantons can band together and also call for a constitutional referendum on a federal law.

Similarly, the federal “constitutional initiative” allows citizens to put a constitutional amendment to a nationwide vote if 100,000 voters sign the proposed amendment within 18 months. Then, the Federal Council (the Swiss equivalent to the presidency) and the Federal Assembly can supplement the proposed amendment with a counter-proposal, and voters must indicate which proposal they prefer.

Essentially, the people and their representatives directly engage with one another to sort out political questions. Every constitutional amendment must be accepted by a “double majority”: Most Swiss people must approve it, but so do most of the country’s 26 cantons.

The First Country to Make Public Transportation Free

Starting next summer, Luxembourg, a small country of 600,000 located between France and German, will remove all fares for buses, trams, and trains, making it the first country with free public transportation. 

More from The Guardian:

On top of the transport pledge, the new government is also considering legalising cannabis, and introducing two new public holidays.

Luxembourg City, the capital of the small Grand Duchy, suffers from some of the worst traffic congestion in the world.

It is home to about 110,000 people, but a further 400,000 commute into the city to work. A study suggested that drivers in the capital spent an average of 33 hours in traffic jams in 2016.

While the country as a whole has 600,000 inhabitants, nearly 200,000 people living in France, Belgium and Germany cross the border every day to work in Luxembourg.

Luxembourg has increasingly shown a progressive attitude to transport. This summer, the government brought in free transport for every child and young person under the age of 20. Secondary school students can use free shuttles between their institution and their home. Commuters need only pay €2 (£1.78) for up to two hours of travel, which in a country of just 999 sq miles (2,590 sq km) covers almost all journeys.


Let’s see if other, bigger countries take note.