Boris Yeltsin handing the Russian Constitution to Vladimir Putin on December 31, 1999
The Kennan Institute hosted on March 19, 2009 a day-long international conference, "The Russian Constitution at Fifteen: Assessments and Current Challenges to Russia's Legal Development." The actual anniversary was observed in Russia on December 12, 2008. But there were good reasons to mark it in the U.S. as well. Oleg Rumyantsev, who was the head of the Constitutional Commission's drafting team, had spent a summer of 1990 at the Library of Congress studying the American experience in writing a country's Fundamental Law.
Now, almost two decades later, Mr. Rumyantsev, whom The Washington Post then called "the James Madison of Russia," came back to Washington as president of the Foundation for Constitutional Reform and co-sponsor of this event. Two other sponsors were the International Institute of Global Development (founded by Alexander Lebedev, a wealthy Russian businessman), and the Kennan Institute.
The star of the show was Mikhail Gorbachev, former Soviet President and father of the perestroika that lead to the disintegration of the Soviet Union. He came as president of the Gorbachev Foundation and leader of the Independent Democratic Party of Russia which he co-founded with Lebedev in September 2008.
He was introduced by former Congressman Lee Hamilton, president and director of the Woodrow Wilson International Center of Scholars, of which the Kennan Institute is part. Hamilton stressed the significance of this forum at a time when both countries are poised to hit a reset button in order to elevate bi-lateral relations from their lowest point in nearly two decades.
'The current Russian constitution was created in the state of chaos and confusion,' said Gorbachev, referring to the conflict between President Yeltsin and the Russian Parliament in October 1993 that ended only after Yeltsin had ordered the army to shell the 'White House', as the parliament building was then commonly called. Around 150 people were killed. 'And, yet, with all its faults, the constitution was needed,' concluded Gorbachev.
'Wasn't that chaos caused by perestroika?' he asked rhetorically. 'No, it was not. For perestroika was needed. The people demanded changes, just like people here, when they voted for Obama.' At this point he smirked, wishing Obama to be more successful in his perestroika. Speaking of the U.S. benevolently, he defended his own record by saying that 'people expected me to deliver in 200 days what America had achieved in two hundred years.' Well, he admitted he was at the helm for six years, but 'it was too short a time because Russia would need about thirty years to complete its evolution.' 'No more revolutions,' exclaimed the former proponent of the revolutionary Marxist ideology.
Nor did he miss a chance to take credit for glasnost. He juxtaposed himself with the late Russian Nobel Prize winning novelist Alexander Solzhenitsyn, an exile, who for twenty years made his home in Vermont. 'Solzhenitsyn and I became friends and had good relations, in spite of our very different background,' Gorbachev said with pride. 'But when Aleksandr Isaevich once told me that glasnost was the beginning of the end, I strongly disagreed.'
'Be [that] as it may, but the Union should have been preserved,' concluded Gorbachev without explaining whether he was speaking of the Soviet Union or the Union of the willing. As he was about to leave, no questions were taken. It's too bad, for the writer of this report had a good one ready.
"Mikhail Sergeevich, did you ever read Solzhenitsyn's Letter to Soviet Leaders? The one he mailed to all Politburo members in 1973 before being expelled from your country? Oh, you were not yet in the Politburo? But didn't you have a party archive? Didn't you ask the KGB about the dissident movement before assuming power? Would Solzhenitsyn have objected if you gave glasnost to his letter? For your information, it was published in this country. In that Letter, Solzhenitsyn proposed an evolution, under your party's control, away from the ossified Soviet system. 'Throw away those Marxist dogmas, let China have them,' he enjoined Soviet leaders. 'Rely instead on Russian patriotism; let talented people without a party card go ahead. Let border republics secede, if they vote for it in a referendum.' Don't you think Solzhenitsyn gave you a realistic chance to preserve the Union of, at least, the three Slavic republics, Belarus, Ukraine, and Russia? The impression I have, it was the leaders of China, not you, who took the cue from the Russian writer?"
Well, I shall return to this later. The topics at hand were (1) constitutional guarantees of the Rule of Law, (2) problems of political culture and civil society; (3) constitutional guarantees of social, economic, and regional development; (4) globalization and the role of international law.
There was a good mix of speakers. Several were involved in drafting the Constitution: Oleg Rumyantsev, Vladimir Lafitsky, Leonid Volkov, Viktor Sheinis, and Vladimir Mazaev. There were other outstanding legal experts from Russia: Aleksei Avtonomov, the editor of Gosudarstvo i Pravo (State and Law review); Sergei Pashin, Federal Justice (retired), professor, Moscow Institute of Economics, Politics and Law; Viktor Kuvaldin, formerly Gorbachev's speech-writer, now head of the Department of Political Sciences at Moscow State University. There were also two Russians who are now settled in the U.S.: Alexei Trochev, author of Judging Russia: Constitutional Court in Russian Politics (Cambridge University Press, 2006) and Andrei Illarionov, who until 2005 was President Putin's economic adviser, and is now a senior fellow at Cato Institute.
The international input was made by William Butler, professor of law at Penn State University, who edits a number of Russian legal periodicals; Eugene Huskey, professor of Political Science at Stetson University and the author of Presidential Power in Russia (Sharpe, 199) and Russian Officialdom: Bureaucracy, State, and Society from Alexander III to Putin (forthcoming); William Pomeranz, Deputy Director of the Kennan Institute who used to teach Russian law at Georgetown University, and a number of other high-caliber experts from the U.S., Canada, and UK.
Unable to attend all presentations of the day-long forum, I shall focus on a few highlights.
According to Aleksei Avtonomov, 'the constitution of 1993 has proclaimed the principles of the Rule of Law, but has yet to succeed in implementing them in our society's daily life.' He suggested that before talking about democracy 'we should have lowered our sights to the Rule of Law.' 'That's the one question I wanted to raise at this forum, and I'm afraid that the answer would not soon be found.'
Oleg Rumyantsev, noting his unease about criticizing the Russian Constitution on American soil at a time when U.S.-Russia relations are tense, went on to say, 'I feel that after 15 years of virtual silence about the issues of constitutionalism we have to speak up. After all, President Medvedev, a lawyer himself, recently encouraged the debate. We have already resumed the publication of Konstitutsionnyj Vestnik (Constitutional review) that was discontinued in 1993. We are here to take a next step.'
He elaborated on Avtonomov's theme that the constitution has set the standards that remain largely unattained. The major problem is the fuzziness of 'people's sovereignty' as the source of state power. It fails to animate the constitution. While accepting the principle of separation of power into executive, legislative and judicial branches, it gave too much power to the executive branch. 'We wrote the constitution for Yeltsin rather than the people,' said Rumyantsev.
Part of the blame he took upon himself. He recalled that in 1990 he received a memorandum from a Columbia University professor warning against adopting the American presidential system. It would not work well in Europe, the professor warned. 'But we failed to heed the warning and gave Yeltsin as much power as he wanted. We did it with the excuse that, as the chief anti-crisis manager, Yeltsin needed it.'
The constitution also guaranteed the irreversibility of privatization, thus giving the legal basis for the Great Grab (Ð±Ð¾Ð»ÑŒÑˆÐ¾Ð¹ Ñ…Ð°Ð¿Ð¾Ðº) as many Russians describe the looting of Russia in the wake of 'shock therapy.' Rumyantsev was quick, however, to credit the adoption of the constitution with helping restore Russia's sovereignty. 'It was needed then to stabilize the country, but now it needs to be revised to help the country go forward.'
Sergei Pashin described the constitution as the 'protective hull' (ÐºÐ¾Ð¶ÑƒÑ…) for the current rulers and echoed previous speakers about its failure to implement separation of powers. By weakening the legislative and judicial branch, the government made sure that 'the people are excluded from participating in the affairs of the state.'
Alexei Trochev, who hails from the autonomous republic of Komi, said that Putin's "dictatorship of the law" meant subordination of the regions not only to federal law, but also to decisions of the executive branch, 'for executive orders rule supreme.' According to him, the Constitutional Court enjoys little esteem in the country as its rulings about laws adopted by the Duma have been routinely ignored.
Victor Sheinis's view is even dimmer. He challenged Gorbachev's optimism that Russia may need some thirty years before its democracy is fully developed. 'Even the two hundred years that America needed to develop its democracy may not be enough because, under Putin, we are moving backward. After the Chechen terrorist act in a Moscow theater in October 2002, we have entered the period of counter-reforms.'
Are there any effective means to reverse the trend? There are two, says Sheinis. First, make the political parties competitive; second, go full speed for integration with the West. Sheinis was not too sanguine, however, about chances for integration because the Kremlin has embarked upon 'the restoration of the aggressive Brezhnev doctrine' of domination, especially, over the neighboring countries.'
In addition to the lack of competitiveness in the political arena, said Eugene Huskey, the other obstacle for the development of democracy in Russia is the weakness of adversarial litigation in Russian courts. 'When I first came to Moscow State University thirty years ago, my Russian colleagues were perplexed that I wanted to study the work of defense lawyers in tsarist courts. They felt that it would be more gratifying to study the work of procuracy.' As it turned out, not only adversarial litigation, but also the jury trials were much more developed in Tsarist Russia than they are now.
Huskey disagreed that NGOs are all-important in the development of civil society. Not that their work is unimportant, but to become vital, NGOs need to have more support not from foreign donors, but from Russia's own middle class, he argued. Even though since the year 2000, a class of moneyed consumers emerged in Russia, it is not a true middle class in a Western sense as it depends on government largess and state-controlled private monopolies. The 'moneyed consumers' cannot form a base for civil society, independent thought and participatory democracy. Huskey sees some reason for optimism though in Medvedev's promise to abolish bureaucratic obstacles for the growth of small enterprises, which in the West account for a great deal of economic innovation and have supported independent thought and public action.
Disagreeing with Rumyantsev, he did not think that Russia was unduly influenced by a strong-president American system. The tendency of the executive branch in Russia to arrogate power has more in common with the 'Eurasian' pattern which it shares with Kyrgyzstan (where he worked), Kazakhstan and Belarus rather than the USA, concluded Huskey.
'When we were drafting the Russian constitution we hoped to surpass the American constitution in its efficacy and longevity. Alas, we failed,' recalled Leonid Volkov. He then raised the question of whether the political culture of peoples inhabiting Russia prevented them from adopting a constitutional system. His own cautious conclusion is that it's not the people who resist the implementation of the constitution, but the small and narrow-minded ruling elite.
When introducing the next speaker, the economist Andrei Illarionov, Rumyantsev pointed out the need of an interdisciplinary approach to constitutional matters. Illarionov obliged by drawing an analogy between the constitution and consumer goods, such as a TV set. To paraphrase his elaborate analogy, 'In America, when you buy something, you expect everything to be in order. But this Russian TV set was not what you had expected at all. First, it cannot be plugged into the common power grid because it runs on a battery. Then, it turned out that the battery was too small, and needed replacement. When you get it done, you cannot use some of the channels that were advertized.' In short, it was a case of consumer fraud. 'The constitution turned 15 years old, but it is barely alive,' concluded Illarionov.
The rest of his talk was devoted to the comparison of the state of democracy in Russia and Georgia. Georgia is unquestionably more advanced, Illarionov concluded. Surprisingly, he did not use this legal forum to correct or modify his foolhardy stance against the Obama administration's plan to hit the now famous 'reset button.' In his linguistically shaky testimony before the House Committee on Foreign Affairs on February 25, Illarionov had condemned the plan as "another Munich" and "a full, absolute and unconditional surrender to the regime of the secret police officers, chekists and Mafiosi bandits in today's Russia." 
Impressions and Commentary
An indirect rebuttal to Illarionov and other ill-informed Russian "westernizers" came not from the panel, but from the floor, during a question and answer period. The speaker introduced himself as E. Wayne Merry, the chief political analyst at the U.S. Embassy in Moscow during the crucial years 1990-1994 and now a senior associate at the American Foreign Policy Council (AFPC). Without naming anyone, he made clear that the assumption that the U.S. had been blameless was wrong. To paraphrase him, he asked, in reference to the early 1990s, if the panel thought it unimportant that the main thrust of U.S. policy then was to foist onto Russia an untested macroeconomic scheme, while displaying devil-may-care attitude about democracy or a constitutional system.
Merry's challenge was picked up by another man on the floor, Viktor Kuvaldin, who was only too happy to buttress Merry's point. Kuvaldin told the audience that during the bloody conflict between Yeltsin and the parliament in October of 1993 he was in Rome on business for the Gorbachev Fund. 'In spite all our efforts to focus the attention of the Italian government and public at large on the assault on Russian democracy, the American mass media prevailed and nothing was done to prevent or condemn it.'
It was not the first time Merry has raised this issue of paramount importance for the development of democracy in Russia. In a PBS interview at the start of Putin's ascendancy, Merry said that in the beginning of the 1990s "we (referring to the U.S. administration) chose the economic over the political. We chose the freeing of prices, privatization of industry, and the creation of a really un-fettered, unregulated capitalism, and essentially hoped that rule of law, civil society, and representative democracy would develop somehow automatically as a result of that." A seasoned diplomat in the tradition of the great George Kennan, Merry opposed the choice because it was based on "an ideological belief, not a tested demonstrable theory applicable to a place like post-Soviet Russia." Alas, the ideological economists prevailed over pragmatic politicians at the U.S. Embassy and managed to impose the so called "Washington consensus" as the official U.S. policy.
Merry's remark made me think that the conference would have been even more relevant to the U.S.-Russia relations, if people like him were invited as panelists. The other person who was most conspicuous in her absence at this otherwise excellent international forum was the anthropologist Janine Wedel, the author of "Collision and Collusion: The Strange Case of Western Aid to Eastern Europe 1989-1998." This book won her a 2001 Grewemeyer award "For ideas improving world order," the same award that previously went to Mikhail Gorbachev. Her overarching theme was the 'gigantic' cultural disconnect between the Western aid givers and Eastern aid receivers. This disconnect was one of the reasons for the collusion between the 'Harvard Boys' and the 'Chubais clan.' The Harvard Boys were Jeffrey Sachs, the author of "shock therapy," and Andrei Shleifer (who had immigrated from the USSR on an Israeli visa) and Jonathan Hay. The latter two were charged with administering Sachs' prescription to Russia. Anders Aslund, a former Swedish diplomat, joined the group. Far from promoting the ideals of Swedish social-democracy or mix economy, which would have been more suitable for post-Communist Russia, Aslund helped the Americans to foist unfettered capitalist oligarchy on it.
The current collision between the two great countries was bound to result from that collusion. Wedel's early misgivings about the Harvard clique/'Chubais clan' collusion and the macroeconomic scheme they imposed on Russia were confirmed on both counts. First, in April 1997, the FBI began to suspect that, under cover of assistance to Russia, some illegal activities were going on and started an investigation. As a result, the Harvard contract for Russian reform was cancelled. In 2005 U.S. District court forced Andrei Shleifer and Jonathan Hay to reimburse U.S. tax payers for about $ 3.5 million, while Harvard University took the slack of $26.5 million, the largest penalty in this venerable institution's history. In fact, they got off cheaply because the original U.S. claim was estimated at $120 million. This happened under the watch of Harvard's president Lawrence Summers who had patronized the Harvard Boys, first as chief economist at the World Bank, then as Treasury Secretary under Clinton.
Second, the deepening global crisis has exposed the flaws of the monetarist theory itself and its 'shock therapy' application to Russia. It should have come as no surprise because that theory, enshrined as "Washington consensus," had gained predominance in violation of what should be the free-market's first rule: free competition of ideas on how to run a global economy to the benefit of humanity. As Wedel pointed out in her book, the Russian reform contract had been given to Harvard without competitive bidding, allegedly, for foreign policy considerations.
Once adopted by the U.S. government, the "Washington consensus" had a deleterious effect on the World Bank and the International Monetary Fund. There, the "fundamentalist" schemes of Summers and his associates prevailed over such pragmatists as Joseph Stiglitz, the author of Globalization and Its Discontents, and William Easterly, the author of The White Man's Burden: Why the West's Efforts to Aid the Rest Have Done So Much Ill and So Little Good. The bubble economy in this country, too, was created by the same people who, in their blind faith in deregulation of financial institutions and privatized economy, paved the road for the rise of oligarchy in Russia. As Treasury Secretary under Clinton, Summers not only patronized the Harvard team in Moscow, but also abolished the derivatives regulation in Washington.
While thanking Gorbachev for his talk, Blair Ruble, the director of the Kennan Institute, mentioned that one of the reasons that the discussion of the Russian constitution was taking place in Washington was that 'we, the Americans, too have experienced what a gap between a theory and practice can do.'
I would not speculate what he meant exactly, but I immediately thought that just as the Russians in the past put all their eggs in the theory of Marxism-Leninism and created a totally fettered command economy, we Americans, since the fall of Communism, went into another extreme, putting too many eggs in the basket of totally unfettered capitalism. As a result, not only do we suffer the consequences economically, but we also suffer politically as the U.S. reputation around the world as the leading economic power and the beacon of democracy has been severely undermined. Certainly, our tirades against the Russian government's authoritarian ways and the lack of constitutionalism sound not only hollow, but hypocritical.
Alas, such "pro-Western" critics of the Russian government as Illarionov and Sheinis do no good for either Russia or the West. Their problem is dual. First, they know little of the West, certainly, not about successful efforts of certain cliques here, be it the 'economists' at the start of the 1990s or the neocons at the start of new millennium, to hijack U.S. foreign policy by subverting our democracy and U.S. Constitution. Their second problem may be less apparent, but just as serious: they know little about their own country's history. Surely, it is hard to blame them, for they share that ignorance with the majority of the Russian people as an inevitable consequence of the ideological Soviet society that had been closed, until the advent of glasnost, not only to the outside world, but also to all Russian history that contravened the official Marxist dogmas.
The constitutional process in Russia of the 1990s would have benefitted far more by taking lessons from Russia's own history than from the study of the U.S. Constitution. It seems ironic that it was a foreigner, professor Huskey, who paid the greatest attention to Russian history. First, he made it clear that, thanks to the liberal reform of Alexander II, both the jury trial and the institution of public defense lawyers were considerably more developed, and more democratic, under the Tsars than they are now. Second, in arguing that Russia's civil society can benefit the most through the development of small private enterprises, he echoed, perhaps unwittingly, the ideas of the courageous Russian reformer P.A. Stolypin who endeavored to create a class of prosperous farmers as the foundation of a stable civil society. As the pre-1917 Russia was both more liberal and more Westernized than the USSR, learning from its experience did not have to be contrary to what the 1990s reformers should have learned from the West.
Alas, this was not the case. Pro-Western Soviet intellectuals were so eager to tear down the Iron Curtain separating them from the West that they forgot to exert similar efforts against the no less formidable Iron Curtain separating them from their own history. This may have happened for the trivial reason that, while a trip to the West was often pre-paid by Western donors and promised more trips for the scholars and their children, a trip to an Old Russia promised little more than archival dust, and, occasionally, conflict with the entrenched Soviet bureaucrats who have defined glasnost narrowly or as told from above.
Glasnost was certainly not as ubiquitous as is commonly believed. I already suggested that, like the rest of the country, Gorbachev probably did not know about Solzhenitsyn's plan for reforming the USSR in the least painful way. Another example is that Sheinis counted only six constitutions in modern Russian history: one initiated by the October 17, 1905 Manifesto of Tsar Nicholas II, four of the Soviet period (of 1918, 1924, the Stalin Constitution of 1936, and Brezhnev's of 1977), and Yeltsin's of 1993. He failed, however, to count the one that is arguably the most significant. I'm talking about the Manifesto of Grand Duke Mikhail Aleksandrovich, written and signed by him on March 3(old style), 1917, in response to Tsar Nicholas' abdication in his favor. Sometimes misleadingly called a 'manifesto of abdication,' it should be more properly viewed as an octroi constitution, granted in a way similar to that of the October 15, 1905 manifesto. It was certainly most relevant to the present discussion.
It is relevant on several counts. First, it defined the concept of the people's sovereignty (which Rumyantsev in vain searched for in the current constitution). It is the right of the people to establish any form of government, be it a presidential republic, monarchy, or parliamentary democracy. Second, it stipulated that people assert sovereignty by electing representatives to the Constituent Assembly (which would then decide on the form of government). Third, for the first time in Russian history, it introduced universal, equal, direct, and secret suffrage. Fourth, it gave a legal basis for the Provisional government's existence, on the condition that it conduct the election to the Constituent Assembly. Fifth, in effect, it served as the country's constitution until the Bolsheviks usurped power on November 7(new style), 1917. After all, the universal election stipulated by the Manifesto was not only carried out, but was arguably the freest and most democratic election in the world.
Mikhail Aleksandrovich (he cared for no titles, even though Nicholas II called him His Majesty Emperor Michael II) was the indisputable father of the most democratic constitution in Russian history. He 'conceived' it with Mother Russia on March 16 (new style), 1917. In spite of the ravages of war, Kerensky's treachery, subversive and terrorist activities of the Bolsheviks and their allies, the embryo managed to develop, and, after a full term of nine months, the 'baby' was born, alive and well, in the shape of Constituent Assembly.
It is not Mikhail's and Mother Russia's fault that the baby's life was brutally snatched upon arrival, during the first session of the Constituent Assembly on January 18 (new style), 1918. The Bolsheviks, having gotten only a fifth of delegates to the Constituent Assembly, dispersed it by force, precipitating a fratricidal civil war. Mikhail was arbitrarily exiled to Perm where he was slain, by the chekists, on June 12, 1918, five weeks before the massacre in Yekaterinburg. His heroic deed in issuing a manifesto of civic reconciliation and the rule of law at a time of chaos and confusion should be retrieved from oblivion. Certainly, no discussion of constitutionalism in Russia can be fully meaningful without acknowledging the unique legacy Mikhail left for the Russian people.
Dr. W. George Krasnow (aka Vladislav Krasnov) is president of Russia & America Goodwill Associates (www.raga.org). Former professor of Russian Studies at the Monterey Institute of International Studies and author of "Russia Beyond Communism: A Chronicle of National Rebirth," he is an intercultural communications consultant residing in Washington.
 See the text in: http://panchul.livejournal.com/78765.html
 E. Wayne Merry, a Frontline interview in the PBS series "Return of the Czar," http://www.pbs.org/wgbh/pages/frontline/shows/yeltsin/interviews/merry.html
 Janine R. Wedel, COLLISION AND COLLUSION: The Strange Case of Western Aid to Eastern Europe. 2nd edition, New York, N.Y.: Palgrave, 2001. See also her article "The Harvard Boys Do Russia: How the Best and Brightest Helped Destroy the Russian Economy," The Nation, June 1, 1998, pp. 11-16 (cover story).
 See my article, W. George Krasnow, "Would Harvard Ever Help Russia?" in Johnson's Russia List( JRL 2006-60 10 Mar 2006, #24) http://www.cdi.org/russia/johnson/2006-62-24.cfm or RAGA website www.raga.org. About Anders Aslund's role see my article"Did Shock Therapy Help Russia?", JRL, 6 May 2008, http://www.cdi.org/russia/johnson/2006-62-24.cfm. See also Wedel's column, "Harvard's role in US aid to Russia," The Boston Globe, March 25, 2006. http://www.boston.com/news/globe/editorial_opinion/oped/
 The elections were conducted after the Bolsheviks seized power, but the voting rules had been established by the Provisional government according to what Mikhail's manifesto stipulated. Russia was certainly ahead of many countries in universal suffrage, including women. Women did not vote in the U.S. until 1920, Sweden 1921, UK 1928, and France 1944. The Soviet government suspended universal suffrage by depriving certain categories of citizens of the voting rights. Stalin re-introduced universal suffrage in 1936, but only pro forma, and without giving credit to Mikhail.