Week Two: Grandfather of the Constitution
Every first year law student in the United States will learn about the doctrine of originalism. Growing up, our education focus extensively on the American Revolution and the Founding Fathers. These seem strait forward enough in elementary school: tea was spilled, then there we lost a king and gained a president. As we get older, we learn more about the divisions, the debates, the writing and rewriting of important documents. The issue of originalism and interpreting the constitution in the context the founding fathers would have understood has bled into many national political debates.
In Kosovo, the people who worked on the Constitution are still largely around. Many of them are part of the government today, including one justice on the Constitutional Court. I had the unique experience of sitting down with him to have an espresso. The translator called him one of the fathers of the constitution. He interrupted her, laughing, and said he was too old even then to be a father—he identifies himself as one of the grandfathers of the constitution. Having been there when the document was drafted, he still runs into surprises trying to apply it fifteen years later.
If democracy is an experiment, then the Constitution of Kosovo has benefited from a few centuries of research. Best practices from democracies around the world were studied. With an eye towards eventual integration into the EU, the Constitution had to be compatible with EU standards and European Court of Human Rights decisions. The United States and other NATO countries also held sway over the drafting of the document. And, of course, the document had to be uniquely Kosovan. While Kosovo is around 90% Albanian, ethnicities from all over the Balkans and beyond make up a unique patchwork of cultures and practices. The history of Kosovo dates back to (at least) the Roman Empire. How do you take such an extensive, deep-rooted culture and create one document meant to govern it all? Not easily. Some issues, such as which symbols to incorporate, were not determined until the day before the Constitution was submitted for approval.
Many lawyers probably wish they could ask the founding fathers what they meant by a certain sentence, or why they settled on a specific word. In Kosovo you can ask, but the answer is likely nuanced, and may leave you with more questions than before.