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Harvard Law Review

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Constitutional design||Ratification




Few think of counterinsurgency as linked to constitutional design. Counterinsurgency is bottom-up; constitutional design is top-down. Counterinsurgency is military; constitutional design is political-legal. Counterinsurgency is temporary, transitional, and tactical, designed to stabilize society; constitutional systems come later and are permanent, constant, and normal. But the conflicts in Iraq and Afghanistan demonstrate the fallacy of these perceptions. Counterinsurgency and constitutional design took place simultaneously, they required high-level political agreement and ground-level acceptance, and they involved politics, law, and security. Iraq and Afghanistan demonstrate that these two enterprises are not different and disconnected, but rather intricately interconnected and complementary. This Note explores this interconnection, showing how constitutional design and counterinsurgency can influence each other. Part II argues that counterinsurgency is a form of constitutional design. Counterinsurgents have considerable influence over who participates in the constitution-making process. In addition, because counterinsurgency operations can significantly change ground-level power dynamics, and thus the probability of ratification, counterinsurgency may indirectly constrain or expand constitutional design possibilities. Finally, counterinsurgents seek to build a legitimate, stable order within society and to enable public power - elements of what scholars consider the informal constitution of a state. Part III argues that constitutional design can be a form of counterinsurgency. If a constitution is designed with the goals, lessons, and elements of counterinsurgency in mind, the constitution may actually facilitate and accelerate the realization of the counterinsurgent's goals. Part III first provides reasons for including counterinsurgency-inspired design structures in constitutions and then presents examples of such structures. Part IV concludes.

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