Indiana University Research & Creative Activity

Democracy

Volume XXVIII Number 1
Fall 2005

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rain forest
Photo courtesy Susan Williams

David Williams
David Williams
Photo © Tyagan Miller

The Power of Thinking Things Through

by Lauren J. Bryant

Sitting in his book-lined office, wearing round Harry Potter-like glasses and a tweed jacket, David Williams hardly looks like someone who meets guerrilla leaders in the rain forest. But in the middle of his academic career, that’s where he finds himself, in the jungle near the Thailand-Burma border. And no one is more surprised than Williams himself.

“Five years ago, I never imagined that my best friends would be people who grew up carrying AK-47s and rocket-propelled grenade launchers,” he says with a shake of his head. “I mean, for crying out loud, I’m just a Midwestern law professor.”

That’s a bit of an understatement. After graduating magna cum laude from Harvard Law School, serving as a judicial clerk to Ruth Bader Ginsburg in the U.S. Court of Appeals for the District of Columbia, and teaching at Cornell Law School, Williams is now John S. Hastings Professor at the Indiana University School of Law—Bloomington. Still, he says, “it’s not natural for me. I sit and stare at a computer and write, that’s what I do.”

“It” is Williams’s role as director of the IUB School of Law’s newly formed Center for Constitutional Democracy in Plural Societies (CCDPS) and especially, his work as a teacher, mentor, and constitutional advisor to leaders of foreign democracy movements.

The Problem with Constitutions

For most of the last 20 years, Williams has been a scholar of American Indian and Constitutional law. A prolific writer and engaging speaker, he’s a nationally recognized expert in both areas. He says his work is really about “the intersection of the two—the way the American Constitution deals with identity and cultural differences, how it tries to acknowledge or suppress them, and what all that has do with democracy.”

Dealing with difference, Williams points out, is the central task of law. “If we were all the same, we wouldn’t need law. Law presupposes differences and some sort of unifying framework to deal with those differences.”

But the unity created through law must be very carefully designed, he cautions. The “proper basis of unity” is not removing difference, Williams says. Rather, it involves “soul-searching on the part of people to identify where we connect, where we do not, and what can be the basis of our life together.”

One area where Americans widely disconnect surrounds the Second Amendment to the Constitution: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Williams took up the study of the Second Amendment when it was regarded academically as something of a backwater, he says. But in 1995, Timothy McVeigh blew up the Murrah Federal Building in Oklahoma City, and suddenly, Second Amendment analyses were all too relevant.

Williams’s book The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic (Yale University Press) appeared in 2002. (Political violence refers to violent resistance against a government or others as a means of political expression.) Williams argues that the amendment’s real power is not as a rule of law but as a cultural ideal that can promote greater unity—the individual’s right to arms existing only as a part of a larger societal consensus and agreement on the use of political violence.

That’s the ideal. But in fact, Williams says, leaning forward in his office chair, “political violence is a good example of a problem that the American Constitutional tradition does not have an answer to.”

Despite its tremendous strengths, U.S. Constitutional law, in Williams’s view, has serious limitations that arise from our country’s commitment to principles we have not sufficiently reflected on or consciously chosen. In other words, he says, “we do things because we don’t know how else to think about them.”

When it comes to political violence, most Americans, and our Constitution, hold the belief that government should not have a monopoly—government control over political violence conjures up visions of a police state. But just as the state becomes dangerous when it holds too much control over the right to bear arms, so also do private groups and individuals. “That’s what Oklahoma City was all about,” Williams says. “If atomistic, private individuals control violence, that’s anarchy.

“Americans tend to imagine that, constitutionally, there are only two political actors, the government and the individual,” he continues. “If you define the world that way, you don’t get a good answer to the problem of political violence.”

His increasing awareness of the shortcomings of American Constitutional law pushed Williams in a comparative direction. He discovered that possible answers to our constitutional problems exist “outside the box” of America’s national borders and parochial interpretations. “Our isolation hurts us. There are other systems,” he says. “There is a whole toolbox full of other constitutional possibilities. We need to complicate our thinking and reach out for those possibilities.”

In recent years, Williams has been exploring different constitutional systems, looking carefully at how they work and the solutions they might suggest for American dilemmas.

And then the Burmese revolutionaries came calling.

‘A particular kind of democracy’

A country of some 43 million people wedged between India and China, Burma has been controlled since 1961 by a succession of oppressive governments. The current government, a particularly brutal military junta, has named itself, ironically, the State Peace and Development Council. In 1990, the National League for Democracy party, led by Aung San Suu Kyi (winner of the 1991 Nobel Peace Prize), won a landslide victory. The ruling junta ignored it. Burmese pro-democracy supporters are routinely harassed, jailed, and worse; Suu Kyi has been under house arrest for much of the last 16 years.

Burma (dubbed Myanmar in 1989 by the military regime) comprises many ethnic groups, with divisions and states within the country largely based on ethnicity. Along with the NLD, many of these ethnic groups also oppose the military government and are fighting for autonomy. Among them is the Chin National Front, whose leaders brought their projected state constitution to Williams for review. (IU has long-standing connections with Burma, including administering a U.S. Department of State Burmese Refugee Scholarship program since 1995.) “We talked for a whole day,” Williams recalls, “and pretty soon I was pretty deeply involved.”

And pretty far out of his “comfort zone,” too. Williams quickly realized that constitution-building with guerilla leaders in a war-torn country is a lot different from teaching first-year law students. (“Going out there to work with people who are trying to democratize their countries is not a normal career path,” he notes.) And in Burma’s case, ethnic divisions considerably complicate the pro-democracy process.

“Burma had a kind of democracy from 1947 to 1961, and it didn’t work. One of the reasons was ethnic resistances,” Williams explains. “So if you’re going to get democracy to work in Burma, you have to think through why it failed before and find a particular kind of democracy that will allow all sorts of Burmese people to live within a single country without having to all be the same sort of people.”

To uncover this kind of democracy, Williams and other CCDPS members have been traveling regularly to Asia to talk with leaders of democracy movements there. They host discussions and hold classes in refugee camps, lecturing on topics such as federalism, individual rights, the separation of powers, and other elements of constitutional design. And they assist with crafting documents, including constitutions.

Williams insists, though, that no one from the center is a “framer.” Rather, he says, using a favorite phrase, the center is helping the Burmese learn the art of “thinking things through.”

“We are not bringing them solutions,” he says emphatically. “But we hope we are bringing some sense of how the talking process works, how you structure it and where it might go. Because the process of thinking things through is very valuable—if you have a process, you can solve problems. And once people start thinking things through, more people tend to join them. Instead of picking up a gun, they say, ‘maybe this thinking things through stuff could work, maybe we can do this.’

"In Burma, so many people think it’s not going to work, that something is broken in them,” Williams adds. “Part of what we do is say, ‘no, a lot of people have been where you are, and they’ve found a way, the habit, the knack of thinking things through.’”

For the Burmese, the process does seem to be working. In 2004, a number of Burma’s disparate ethnic groups formed the Ethnic Nationalities Council, with the objectives of ending Burmese military rule and establishing a genuine democratic federal union. “They met in the jungle inside Burma itself and worked out eight principles for a federal union and the constitution process,” Williams says. “They are resolved to write a single constitution for Burma as a whole.”

Advisors to the ENC include Williams and other CCDPS fellows. In early August, the center convened a working conference in Bloomington at which CCDPS members met with a number of democracy reform leaders. The group included Lian Sakhong and U Thein Oo, the co-chairs of the Federal Constitution Drafting Committee of the Union of Burma.

Possibilities for love

Burma is not the only country in which the CCDPS is at work. Building on existing IU relationships, the center is also focusing on constitutional reform in Azerbaijan, Kazakhstan, and Liberia. In Liberia, the center has a special advantage—former President of Liberia Amos Sawyer (see The President and the Professor, below) joined the IUB faculty in 2001 as a research scholar. Sawyer now serves as associate director of the CCDPS (several of the center’s fellows come from the four countries being studied). Williams, Sawyer, and others are working with the University of Liberia to write “a lawyer’s version, a civic leaders’ version, and a citizen’s version” of a constitutional commentary aimed at clarifying the intricacies of the constitution’s provisions.

Williams describes the center’s work abroad as energizing and exciting, but it is not without its dark side. Some lectures Williams has delivered in the Thailand jungle are now subversive documents, translated into Burmese and other ethnic languages and smuggled into Burma on muleback. “Various guerillas now carry lecture translations in their knapsacks,” Williams notes. “They patrol by day and talk constitutionalism at night.” This secret spread of Williams’s lectures inside Burma has put his name on the military junta’s list. “I can’t go into Burma because they know what we’re doing,” he says.

Still, Williams and his wife, Susan—the Walker W. Foskett professor of law at the IUB School of Law and also a fellow in the CCDPS—feel safe enough to take their young children with them when they travel to meetings in Asia. Williams isn’t afraid physically. But “spiritually,” he says, “I’m scared every day.”

The spiritual challenge in “thinking things through,” he says, “is figuring out how we’re going to do this [create a stable constitutional order] and make it work.” He fears that the center’s work won’t be good enough to help the people of Burma and elsewhere, that in the end, he will let them all down. He fears this because, in the midst of all the constitutional scholarship and clandestine meetings, Williams has discovered something about his discipline of law: it’s about love.

“Part of law is to create possibilities for love,” he says. “Humans long for each other; they cherish each other. And law can create a setting where people will realize this, where people can love each other right across the chasm of their differences. That is the basis of unity; that’s what we codify.”

Williams speaks from his own experience: “I am learning to look at the Burmese across our cultural differences. I’m learning to be their friend, and they are learning to be mine, in deep and enduring ways.”

As the sun streams through his office window, Williams pauses and looks away for a moment. “I want so much for them,” he says softly. “They have been through so much, and their hearts are so sore. It’s so easy to choose not to feel. But to hope is to feel. If we can think of possibilities, if we can figure out what might work, then we can act out of hope and belief in those possibilities, instead of acting out of fear.”

Sounds like a man who has thought things through.

Lauren J. Bryant is editor of Research & Creative Activity magazine.

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