Baghdad, Tokyo, Kabul….Constitution Making in Occupied States

This Essay proceeds by defining the universe of occupations since 1816 and identifying the set of constitutions written under these circumstances. Part II then analyzes the forty-two instances of constitutions adopted under occupation or shortly thereafter. Part III discusses the conditions under which occupation authorities seek to use constitutions to facilitate political reconstruction, as opposed to other methods. This Part next examines the content of these constitutions and evaluates their similarity to those of the occupying power. Finally, it explores the determinants of “successful” (or at least durable) occupation constitutions, and argues that a key factor is that the constitution be self-enforcing in the game-theoretical sense. The evidence suggests that self-enforcement is indeed a crucial quality.