Guest Columns

EWEGEN: A WORLD OF DIFFERENCE IN OUR CONSTITUTIONS

Nobody celebrates “The Miracle of Moscow”

The Colorado Statesman

Americans who observed Constitution Day on Sept. 17 may have stopped to contemplate “the Miracle of Philadelphia” — the convention that produced the world’s oldest continuous blueprint for ordered liberty known as the U.S. Constitution.

In contrast, it’s doubtful that ordinary citizens of the former Soviet Union ever paused on Dec. 5, the anniversary of their own 1936 constitution, to give thanks for “the Miracle of Moscow.” If the memoirs of such Russian patriots as Aleksandr Solzhenitsyn can be believed, life in the Gulag Archipelago just didn’t permit that much time for thoughtful reflection.

That’s not to say that the 1936 Soviet Constitution — the longest-lived of several such documents — didn’t have some good ideas. On paper, it incorporated most of the rights of the U.S. Constitution and added a long list of economic rights unrecognized by the American drafters.

According to the Gale Encyclopedia of Russian History, the 1936 Constitution guaranteed Soviet citizens the rights granted in previous charters, including “freedom of religious worship (but not religious propaganda); freedom of assembly; freedom of association; freedom of the press; and inviolability of person and of the home.”

The Stalin Constitution not only matched the U.S. Constitution’s 14th Amendment guarantee of equal rights irrespective of race or national origin, it also foreshadowed the still unratified U.S. Equal Rights Amendment by guaranteeing equal rights without regard to gender.

But the Soviet Constitution went well beyond its American predecessor in the realm of economic rights. It added the rights to work, rest and leisure; health protection; care in old age and sickness; housing; education; cultural benefits; and the right to privacy.

It also repealed restrictions on voting previously applied to such former class enemies as the nobility, the bourgeoisie and rich peasants, or “kulaks.” In theory, that meant the Soviet revolution had succeeded in building socialism and a “new Soviet man,” and thus the former class enemies would be allowed to enjoy full political rights.

Unfortunately, even on paper, there was a catch to this wonderful political freedom. Article 126 recognized the famous “leading role of the communist party,” stating that the party was the “vanguard of the working people in their struggle to strengthen and develop the socialist system and is the leading core of all organizations of the working people, both public and state.” This provision was used to justify banning all other parties from functioning in the Soviet Union. So, there really was a universal right to vote — there simply weren’t any candidates to vote for, except for the single slate of the Communist Party.

That wasn’t, however, the main problem with the Stalin Constitution. As the Gale Encyclopedia notes, its fatal flaw was that it “failed to provide political and judicial mechanisms for the protection of rights... Neither did the people have a higher authority within the government to which to appeal when they believed their rights had been violated. The Supreme Court had no power to ensure that constitutional rights were observed by legislation or were respected by the rest of the government.”

In short, there was never a Soviet version of Marbury v. Madison, the landmark 1803 U.S. Supreme Court case that formed the basis for the exercise of judicial review under Article III of the Constitution. Without an independent judiciary to check the power of the executive branch, those guarantees were almost meaningless.

Scholars say the rights of criminal defendants outlined in the Soviet Constitution actually had some meaning — the party and Stalin himself didn’t feel threatened by petty thieves or even the occasional random homicide and pretty much let the justice system deal with them. But if the case involved one of the despised “political” offenders, the party or Stalin itself would dictate the outcome, which usually meant a bullet to the back of the head or a “ten-er” in the Gulag.

The fate of two of the Soviet Constitution’s drafters serves to illustrate what happens when noble ideas aren’t enforced by an independent judiciary. The 31-member committee that drafted the 1936 Constitution was chaired by Stalin but included such brilliant minds as Nikolai Bukharin and Karl Radek.

Radek apparently embraced the 1936 Soviet Constitution’s guarantee of freedom of speech to the point of originating a number of political jokes about Stalin himself. Convicted in the 1937 second Moscow show trial, he was sentenced to 10 years in a labor camp. Shortly afterwards, he was killed by an NKVD operative under orders from Stalin’s executioner Lavrentiy Beria.

Bukharin, the brilliant theoretician who inspired the character of Rubachev in Arthur Koestler’s masterpiece “Darkness at Noon,” also caught the eye of Koba (Stalin’s underground name). After repeated torture and threats to kill his wife and infant son, Bukharin first refuted the charges of treason at his own show trial, then confessed anew that “the monstrousness of my crime is immeasureable, especially in the new stage of struggle in the U.S.S.R. May this trial be the last severe lesson, and may the great might of the U.S.S.R. become clear to all.”

There is one final point worth mentioning about the Stalin Constitution. Like its predecessors and the subsequent 1977 Brezhnev constitution, it guaranteed the constituent republics of the U.S.S.R. — Russian, Ukrainian, Belorussian, Azerbaijani, Georgian, Armenian, Turk-men, Uzbek, Tajik, Kazakh and Kyrgyz — the right to secede.

In Stalin’s time, of course, any such thoughts would have led to a bullet in the neck. But the reforms instituted by Mikhail Gorbachev in 1985 eventually culminated in 1991 with the break-up of the Soviet Union into those very constituent states in a mostly bloodless revolution.

Even when drafting a constitutional Potemkin Village to paper over tyranny, it seems, it’s important to be careful what you wish for.

Bob Ewegen ended a 45-year career in journalism when he retired after 36 years at The Denver Post in 2008. Now a certified paralegal, he is director of research and communications at the Ewegen Law Firm headed by his daughter, attorney Misty Ewegen.