Soviet Constitutional Law:

Towards a New Federalism?

Copyright 1990 © by Lowry Wyman

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"The death knell has sounded for Communism. But the concrete structure has not yet toppled, and we face the danger of being crushed by the debris instead of finding freedom." Aleksander I. Solzhenitsyn

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INTRODUCTION

When I agreed several months ago to present a paper on recent developments in Soviet law reform, I suggested the Soviet Constitution as my topic, posing "towards a new federalism?" as a hypothetical question -- almost as a whimsical afterthought. I expected that by October, 1990 (when the AAASS Conference would be in session), I would be commenting on further amendments to the Constitution, addressing the initial labors of the Constitutional Oversight Committee, discussing the countless new laws that would have been drafted, debated, and promulgated (but not enforced), and noting society's deepening concern over increasing anarchy.

I also expected that I would be commenting on the views of politicians, scholars, parliamentarians, law professionals, and others who would have begun to acknowledge and analyze the contextual vacuum in which they were operating, such that I could say with confidence that fairly soon they would publicly conclude that the premises underlying the present Union had to be scrapped. I intended to speculate on what arguments various parties would advance. I expected to anticipate numerous arguments in support of the notion that different underlying premises could be adopted without completely abandoning the Union, so that transformation of the USSR into a government under law -- applying principles of constitutional democracy, federalism, and international norms -- could occur while the Union, as such, remained more or less intact.

What I did not expect was the startling speed of the Union's economic collapse, and the growing urgency with which the fundamental question of the survivability of anything resembling the present Union would be debated. I did not expect that constitutional "reorganization" -- a fundamental reconception of the Union, including the possibility of its demise -- would so soon hang, like the sword of Damocles, over consideration of every other social, economic, political, legal, or constitutional issue.

I now find that the question I posed almost whimsically, regarding the need for a new Union compact, is the dead-serious focus of attention. Chastened, I will deal with it in dead-serious fashion, and will eschew predictions. All bets are off. We are witnessing an extraordinary crystallization of great constitutional questions into the concrete experiences of huge populations. As fascinating as all this is, we must not forget that people's lives, hopes, and dreams hang in the balance.

Although the present "constitutional-legal" struggle is cast in terms of formulating a new Union Treaty, it clearly goes much deeper -- and might involve abandoning the notion of a “union” altogether. Above all, it is a struggle to root out the rottenness of Communism and to lay the foundations of a free society before the whole country drowns in the quagmire of its past -- a "slough of despond" whose depth we can never fully plumb, although Richard Pipes' new book,
The Russian Revolution, is an excellent starting point. Because the contours and rationale of the present Union -- a vast "international" hegemony bound by dogma -- are so closely bound up with Communism, abandonment of Communism implies at least reconsideration of the need for a "union" of any sort.

The present Union is dissolving before our eyes. But our focus should be elsewhere, namely, upon the contours and architecture of the new constitutional compact(s) that must replace the old -- whether a federation, confederation, commonwealth, common market, or other association between some or most or all of the present constituent regions, republics, etc. The term "union compact" as employed in this essay encompasses any and all these possibilities, combinations, and permutations, including a "compact" for the responsible dismantling of parts or all of the present vast hegemony.

Although we have to hope that the current dissolution will not degenerate too calamitously, this cannot be ruled out. The dustbin of soviet history seems more and more to resemble a burning dumpster, a veritable funeral pyre. Things could get very hot indeed, and we can only hope that the new constitutional order being forged will be worthy of the human suffering attending its birth.

Clearly, any worthy constitutional order must address more than mere geo-political or institutional arrangements. It must address relations among individuals, and between all citizens and their local, regional, or "union" (if any) governments. This essay does not focus on "constitutional order" of this second kind. But, by thus narrowing the focus of discussion, I do not want to imply that human rights and due process, etc., are unimportant. Far from it. Humans form governments to secure the blessings of liberty for themselves and their posterity. No constitutional order is worth anything if it ignores that central goal.

A new Union compact must be hammered out upon the anvil of constitutional, legal, economic, social, and cultural forms and norms quite alien to the present USSR. The main distinguishing feature of this anvil must be honesty, probity, integrity -- as the main distinguishing feature of its communist antecedents was the opposite: a total, institutionalized war upon truthfulness. Therefore, those who currently seek in those antecedents a basis for a new Union compact are making a tragic mistake. I want to discuss this mistake, and the fundamental dishonesty underlying the present Union, in order to focus upon honesty as a necessary precondition to forging a worthy socio-politica1 compact.

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ANTECEDENTS

Last year, Izvestiia TSK KPSS published "Documents and Materials on Relations Between the RSFSR and the Independent Republics." These Communist Party archival documents reveal the premises underlying formation of the USSR. They include writings by Lenin, Stalin, Kamenev, and others. The following is primarily based on materials covering the latter half of 1922, when the present Union was created. See endnote.

In the summer of 1922 Stalin formulated a plan to incorporate the independent republics of Ukraine, Byelorussia, Azerbaijan, Georgia, and Armenia into the Russian federation, the RSFSR. He called this process "autonomization" (
avtonomizatsiia).
(See endnote.) Through autonomization, these republics would cede to the RSFSR exclusive control over foreign affairs, foreign trade, military matters, the railways, finance, and the postal and telegraph systems. Under this plan, they would also subordinate their primary governmental functions -- which Stalin identified as the functions of the people's commissariats of food, labor, and the economy -- to those respective commissariats of the RSFSR. The republics would retain "autonomy" (far short of independence, as we shall see) in such "local" matters as internal affairs, justice, education, agriculture, workers' and peasants' inspection, and health and social welfare.

On August 11, 1922, Stalin prepared a draft resolution containing the basic elements of his autonomization plan. He advised that it not be published, for he expected that the affected republics would object. Instead, he urged that the Party Central Committees be instructed to arrange for the local Congresses of Soviets or Central Executive Committees to adopt his resolution "as the will of these republics."

On September 22, 1922,
Stalin wrote Lenin a lengthy letter setting forth his arguments in favor of autonomization. Stalin explained that there were only two options: either the republics would have genuine independence, which was utterly unacceptable to the new Communist order, or they would have fictitious independence -- the essence of his autonomization plan. See endnote.

Stalin's letter, excerpted below, began with a word that needs explanation, "formally” -- a concept that suffuses Soviet lawmaking. Stalin used this word here in order to introduce a distinction between the
form and the content of a word, to prepare the ground for removing the content, substance, or meaning ordinarily associated with that word and concept. The concept Stalin was discussing was "independence” or "autonomy": the relationship of the independent republics to the central government in Moscow.

Note that a curious result of this kind of sophistry was that in the Brezhnev era dissidents were imprisoned (often in insane asylums) for committing "formalism" -- that is, for attempting to put content and substance back into the words from which they had been removed, including the word independence. To drive home the continuing problem caused by such "formalism" we need only recall that recently a whole nation, Lithuania, was blockaded for seeking to put content or meaning into the USSR's current constitutional right of the republics "freely to secede from the Union." Let us now return to Stalin's September 22, 1922 letter to Lenin:

1. Formally the decisions of the RSFSR's central government agencies are not binding upon independent republics; consequently, when the central government annuls resolutions of the republics, they protest on the ground that such actions are illegal.

2. Modification or reversal by the Russian CP Central Committee of local Party directives causes confusion and incomprehension among non-Party members, and irritation among local Party members.

3. After four years of civil war, during which (in order to combat foreign intervention) we had to show ourselves to be liberals on the national question, we have raised young Communists to be true supporters of independence in every sense, and they view interference by the Russian CP Central Committee as deceptive and hypocritical on Moscow's part.

4. We are undergoing a developmental stage where form, law, and the constitution cannot be ignored, because the younger generation of Communists in the outlying areas ["okrainy"] refuse to accept the game of independence as just a game, insisting on speaking about an independent currency and demanding that we observe the letter of the constitutions of the independent republics.

5. Unless we now try to adjust the
form of the relations between the center and the outlying areas into an actual interrelationship, in which in all fundamental respects the outlying areas are subordinated to the center -- that is, unless we now replace formal (fictitious) independence with formal (and partially real) autonomy [a term Stalin understood to imply interdependence, something far short of independence] -- in a year it will be immeasurably harder to set up an actual unitary state [“
edinstvo"] of soviet republics. (Emphasis in original.) See endnote.

On September 26, Lenin discussed this proposal with Stalin and persuaded him to shift his emphasis from the concept of autonomization (i.e., incorporation of all republics into the RSFSR), to the concept of "union" -- that is, instead of the republics becoming part of the RSFSR, they and the RSFSR would form a "federation of republics with equal rights." In a note that day to Kamenev, Lenin said Stalin had agreed to this shift of emphasis. See endnote.

It is clear that Lenin's use of "federation … with equal rights" was as specious as Stalin's use of "autonomization": Lenin's proposed terminology sought merely to soften the blow and indeed obscure his true intentions. The content or substance Lenin gave to the form of "federation … with equal rights" was the same as the content and substance Stalin gave to the form of autonomy. Neither intended the republics to be equal to or independent from the RSFSR, i.e., the central government in Moscow. Lenin completely endorsed Stalin's idea of subordinating to Moscow all key functions of the republics, and thereby approved the creation of a unitary government of merely "formally" independent republics.

The Soviet Union's "founding fathers" agreed to Stalin's plan, as modified by Lenin, on September 26, 1922. This "Draft on Relations Between the RSFSR and the Independent Soviet Socialist Republics" (signed by Stalin, Ordzhonikidze, Miasnikov, and Molotov) bound the RSFSR, Ukraine, Byelorussia, Azerbaijan, Georgia, and Armenia into the "Union of Socialist Soviet Republics" [see endnote] -- "with each republic retaining the [formal] right freely to secede from the 'Union' (
s ostavleniem za kazhdoi iz nikh prava svobodnogo vykhoda iz sostava 'Soiuza'). See endnote.

The idea of providing merely
formal (i.e., fictitious) rights of secession and of administration was also specifically endorsed by Kamenev in a note to Lenin dated September 27, 1922: "In my opinion, either we should not address the question of ‘independence' at all (which, clearly, is already impossible), or we should construct the Union in such a way as to maximally retain formal independence, that is, more or less according to the proposed scheme [Stalin's autonomization plan]. The Union Treaty should definitely contain: (a) a provision on the right to unilaterally secede from the Union, and (b) a clear delineation of the spheres of administration ['oblasti vedeniia']." (Emphasis added.) See endnote.

These documents, as well as prior and subsequent events, support overwhelmingly the conclusion that the Soviet Union's founding fathers not only did not intend to create a Union of independent, sovereign republics, they intended and actually did create something quite different: a scam. They deliberately created merely the formal trappings of a Union, thus designing from the very onset a fundamentally dishonest and lawless constitutional order. The "union" that resulted is today's USSR or "Soviet Disunion" (as some political pundits have called it).

As suggested, various "reformers" have recently sought to suggest that the future contours of a reconstituted Union can be based upon Lenin's earliest conceptions. Referring to such arguments, Ann Sheehy of Radio Liberty recently quoted from Lenin's "
On the Question of Nationalities or 'Autonomization'," written December 30-31, 1922. In this document, as paraphrased by Sheehy, Lenin observed that "the Party should not rule out in the future confining the jurisdiction of the Union to defense and foreign policy, and restoring the full autonomy of the people's commissariats in the republics in all other matters.” See endnote.

But these assertions by Lenin must be seen within the context of his response to Stalin's September 22 letter, as well as the context of his undoubted agreement (for he was the dictator) with the September 26 "Draft" signed by Stalin, Molotov, and others. Besides, in Lenin's December 30-31 observations he furthermore asserted that any disagreement between Moscow and the republics could be "adequately paralyzed by the authority of the Party." What does
that mean?

Lenin's conception of the Union, and his above-quoted words on "autonomy" of the republics, must be interpreted within the context of the very quintessence of Leninism, a quintessence that supplies meaning to "adequately paralyzed": Leninism was not only institutionalized obfuscation, it was also institutionalized terror. Present-day reformers are making a tragic mistake when they seek to bottom their conception of a new Union compact upon Lenin's original conceptualization, for that conceptualization was a bottomless bog of deception and terror. See endnote.

In light of the ghastly consequences of Lenin's original conception, Solzhenitsyn's recent exhortations to the "Soviet" people achieve special poignancy:

Lawlessness reigns over all depths of the country. And we cling only to one thing: not to be deprived of stupefying drunkenness ….

But such is man, that we can bear all this senselessness and destruction through all our lives if only no one dares to offend or hurt our NATION! In this case there is no stopping us in our eternal humbleness. In this case we grab at stones and sticks, spears and guns, and rush to our neighbors to set their houses afire and kill. Such is man: nothing can convince us that our famine, poverty, early deaths, degeneration of children -- that any of these misfortunes takes priority over our national pride! And that is why, trying to propose certain steps for our recovery, we have to start not with the nagging ulcers, not with the exhausting sufferings -- but with the question: What is going to happen with the nations of the union? Within what geographical boundaries are we going to recover or die? Only then may we think of a treatment ….

In many of the remote republics, the centrifugal forces are moving with such speed that they cannot be stopped without violence and blood, and it should not be done at this price. Everything is racing forward so haphazardly that in any case the "Soviet Union" will fall apart anyway.

And we do not have a real choice. ... We can only move a little faster to prevent new misfortunes so that the split will take place without extra sufferings of the people, and only the split that is really unavoidable. See endnote.

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CURRENT DEBATE

The current debate over the future of the Union (including whether it has a future) reflects several ideological, theoretical, and practical approaches or "schools of thought." I shall here identify seven roughly-distinct groupings, the last ("Pragmatists") being less a "grouping" than a grab-bag of values reflected in varying degrees by adherents of the other six groupings, plus those who seem consciously to avoid identification with all "schools of thought."

Obviously the situation throughout the USSR is quite fluid; few people present a “pure case” of adherence to any one particular position. The following classifications are intended merely for heuristic purposes.

1. Old Line Communists: A significant part of the Soviet populace believes that the bedlam already unleashed by reformers demonstrates the need to reassert centralized control based on Communist orthodoxy. Theirs is a domino theory -- that once one sets forth upon the road of reform, or even speculates about the validity of fundamental Communist premises, things start to disintegrate so frightfully that the best course is to pull back, clamp down, and reinstitute the tried and true approaches -- including the "iron hand” of dictatorial control: after all, things under Stalin weren't all that bad: he provided bread and safe streets. Besides, his detractors obviously have no idea what to do about the present disintegration.

2. New Line Communists: A very significant group of reformers, while rejecting the abuses of Stalinism (and also the "stagnation" of the Brezhnev era), asserts the continuing vitality of "socialism." New Line Communists specifically endorse what they claim to be Lenin's vision of the Union compact. This point is discussed in detail in the next section, "Official 'New Union' Policy”.

New Line Communists are generally associated with President Gorbachev, and appear to represent less a "school of thought" than a broad political coalition that takes its ideological cues from him. As detailed in the next section, Gorbachev's ideology is remarkably fluid, pragmatic, indeed opportunistic. For example, he might soon join the increasingly-less-muted attacks on Lenin, even "socialism", but has not yet done so; whether or not he does, depends less on philosophical musings than on political expediency.

Gorbachev and his New Line Communists might be paying only lip service to Lenin, seeking thereby to cloak attempts at genuine and far-reaching reforms within the protective raiments of past dogma. On the other hand, they might still be in the thrall of their myth-based Leninism, and genuinely misguided in their reliance upon Lenin's model for their “new" Union compact. Either way, that compact will be flawed
ab initio. Based either on a discovered or an undiscovered lie, that new Union would manifest the same core of corruption as the old. It would never be able to close the door decisively upon a return to the worst elements of the old order.

3. New Federalists: Growing numbers of reformers are openly rejecting Lenin, Leninism, neo-Leninism, and all the fundamentally obfuscatory and lawless premises underlying the present Union compact (whether old-line or new-line). These reformers believe that those premises were fatally flawed, and they therefore seek a wholly new and healthy basis for a Union compact -- a federated constitutional democracy.

New Federalists proceed from the deeply-held theoretical premise and practical conviction that the present Union's geographic scope (and hence its national or ethnic pluralism) is a geo-political "fact" that should not be disturbed (except, perhaps, by "opting out" pursuant to rules laid down by the present USSR or the presumptively-valid successor to the present USSR). See endnote.

Incidentally, New Federalist conceptions of the contours and character of the new Union are shared, more or less, by many opinion leaders of the Western democracies. The main appeal here is that New Federalism provides a theoretical rationale for maintaining centralized control over the reform process -- maintaining continuity, keeping order, confining the roiling river within its banks.

Accordingly, this seamless transition from old to new would not call into question the vast edifice of international agreements and institutions that the old order helped create, as well as business contracts entered into between foreigners and Union ministries. Even more important, the New Federalist program raises no appreciable doubts about the ownership and control of old-Union weaponry -- including staggeringly powerful thermonuclear, nuclear, and conventional arsenals.

4. New Confederalists: Closely related to the New Federalists in some respects, yet philosophically quite distinct, are reformers who believe that a "union" of whatever scope and character must begin with truly voluntary "opting in" (rather than mere failure to properly opt out) -- and hence must accept the risk, as it might thereafter reap the benefit, of complete political discontinuity between the old and the new. See endnote.

The benefit, of course, would be the knowledge that when this flag was run up the pole, nobody had to salute -- but that if some did salute, they did so because they truly wanted to. Given the history of this part of the world, that sort of startup for any resulting geo-political association would be a refreshing and healthy point of departure. Unless one is willing to risk loss, one cannot reap gain. Consider how much more "authority" as distinct from mere "power" Gorbachev would have if he had stood for popular election to the presidency; his refusal to risk not winning the presidency by popular ballot tainted the presidency he actually got; his fear of losing foreclosed obtaining a mandate to succeed.

New Confederalism differs from the above groupings due to the way it comes into being. It is distinguished not by the shape or substance of the geo-political association(s) that might result, but by its voluntary beginnings. It could result in a commonwealth or a common market or a tightly-bound union, whether among some or all parts of the present Union (or including peoples currently outside the present Union, presumably); but that result, as such, is irrelevant -- so long as its birth is truly voluntary.

New Confederalists might agree on principle with New Federalists that continued association of the various political subdivisions currently comprising the USSR would be desirable -- but only if their participation is truly uncoerced, only if they join as truly independent states. Put differently, New Confederalists accept the notion that a new Union compact could encompass the full geographic and pluralistic scope of the present Union, yet they acknowledge that this is not likely – that some portions of the present Union will almost certainly not opt in (including, of course, the Baltic states, which insist on complete independence).

As to those who opt out, the New Confederalists seem quite content to murmur, "Wayward brothers, let us part in peace" -- thereby probably enhancing the likelihood of eventual establishment of far closer bonds of friendship than could ever be forged with the aid of coercion, economic blockades, secession-law legerdemain, or similar "fraternal" inducements.

5. Nationalists: Solzhenitsyn and others believe that decisive benefits would result from breaking up the current Rube Goldberg Union into distinct countries, each reflecting its distinctive culture. This school of thought does not reject the possibility of various confederations, commonwealths, common markets, or alliances, but on principle it sees no need for these distinctive cultures (or countries or "unions" founded thereon) to either exclude nations and peoples currently outside the Union -- whether in Alaska, Japan, China, Mongolia, Afghanistan, Iran, Romania, etc. -- or to include nations or peoples currently within the Union.

Thus, Solzhenitsyn's proposed pan-slavic union, composed of Slavic Russia, Byelorussia, Ukraine, and parts of Kazakhstan, and dedicated to the preservation of the distinct cultural and spiritual values of the ancient Rus' peoples, would not embrace "unnatural" political associations with non-slavic peoples, yet could associate with them for economic or other reasons -- to the extent that such association would not imperil slavic culture.

Nationalists are burdened by the existence within Russia of almost a hundred small nations or tribes; many other people residing within Russia have "homelands" (e.g., Armenians) on the geographic periphery of Russia; yet other people (e.g., Jews) do not have a homeland on the periphery; Solzhenitsyn's proposals address enough of these problems to suggest their enormous complexity. Furthermore, it is not at all certain that Ukrainians and Byelorussians will answer Solzhenitsyn's panslavic call to nationhood. Many of them appear to detest their Russian oppressors. Solzhenitsyn claims it was
Communist oppression, a scourge common to all slavic peoples, that can now help unite them.

The rest of the world understandably fears the balkanization or "Lebanonization" of so vast and diverse a country, especially given its huge arsenals. Yet the appeal of geo-political organizations reflecting ethnic and cultural affinities is powerful, and could play a prominent part in current reconceptions of the old Union. Needless to say, the Nationalist vision of the future is not a "new Union" vision at all, but its opposite -- the break-up of the old Union into numerous new nations.

Incidentally, Solzhenitsyn's challenge to the USSR goes far beyond questions of nationalism or the desirability of a new Union compact. His words thunder over many issues of constitutional significance -- economic reform, land reform, the ecology, human rights, social responsibilities, the pitfalls of Western democratic pluralism, and the spiritual bankruptcy of just about everything. One does not have to agree with all his broadsides to conclude that his is a powerful and thought-provoking voice in the current debate.

6. Fascists: Some "reformers" harken back not to a mythical Leninism but to an equally mythical pre-Communist era of purity. For the most part, these are extreme Russian nationalists, monarchists, xenophobes. One such group is Pamyat, which is virulently anti-semitic. Like the Old Line Communists, the Fascists seem to yearn for the iron hand of a police state, although some of their fringe adherents are thugs, skin-heads, and similar misfits who would fare badly in a police state. Fascists do not seem particularly preoccupied with the finer points of constitutional democracy, theories of federalism, human rights, and due process under law, etc., and in this regard -- like the Old Line Communists -- they "participate" in the reform debate only in the sense that they consciously derail or mock it. Fascists do not seem particularly influential at present, but a period of major socio-economic upheaval could change that.

7. Pragmatists: This is a grab-bag assortment of "interested onlookers" in the reform debates, plus those who are less "reformers" than would-be survivors of others' reformist zeal, etc. Pragmatists do not seem perturbed by their lack of any currently-satisfactory theory or prescription for the future -- appearing, instead, intent upon swimming without drowning in a nameless river rushing inexorably towards an unknowable ocean of unfathomable problems and exciting possibilities. They are essentially "opportunists" (of the best and worst varieties, with many caught in eddies in between).

At least some of these Pragmatists eschew constitutional and theoretical constructs due to a deep -- albeit not easily articulated -- belief that the current world-wide process of economic, political, and cultural transformation will overtake and render obsolete all current political models, domestic and foreign. They therefore focus less on constitutional theory than on discrete and pragmatic accommodations to the developing breakup and reassembly of their own particular corner of the world.

Interestingly, many New Line Communists both proclaim their platform and live according to this pragmatic credo. So long as others set the real stage for reform, the contours of genuine debate, they will tag along -- protesting too much, as is their wont, but moving nonetheless. On balance, this may well be the most comforting characteristic of the current power brokers, including Gorbachev.

In this respect they are not unlike the lawyers and theologians and princes of the scholastic era, who could seemingly-comfortably navigate a worldscape of profoundly contradictory truths -- the worldscape they had grown up with, Western Christendom, which was undergoing a spiritual and political breakdown -- parroting the nonsensical inherited verities of Damiani and the patristic tradition, while struggling beyond them. In this struggle, they were aided by the "newly discovered" verities of Aristotle: writings, translated from Arabic, that seemed vaguely familiar (the patristic tradition believed itself founded on Aristotle as much as on Moses). This "new learning" would eventually reveal to Western Christendom its true inheritance: the verities of Western Civilization, including the Idea of Progress.

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OFFICIAL "NEW UNION" POLICY

 As suggested, of these "schools of thought" regarding the character of a new Union (or its absence), Gorbachev's views, and therefore the official policy, are most closely reflected by what I have here classified as New Line Communism -- plus elements of that grab-bag I have referred to as Pragmatism. Like Macawber, and like most of his compatriots, Gorbachev is hoping that something will turn up: perhaps a better theory, perhaps a nontheoretical helping hand, perhaps several of both.

Gorbachev espouses his New Line Communism with diminishing zeal, as if he perceives it merely as the engine of its own "controlled" demise and replacement -- with what, he and we can only speculate. He seems intent on jettisoning those elements of Old Line Communism that threaten his political survival, while preserving those elements that might sustain him, if only temporarily. That, in a nutshell, is what New Line Communism currently consists of: the
real politik of a ruling class for whom all other alternatives seem worse -- if not fatal. It is cynical, and it breeds cynicism.

But its policies happen to be the official policy, and must be dealt with as such. Its policies on establishment of a new Union compact, already alluded to, therefore require further elaboration. Presidential Council Member Grigorii Revenko seems to have become a major spokesman on this subject. At a July 1990 press conference he explained it thus: "When we formed the Union in 1922, [it] almost contained the basis of a federative structure. It was there as a model. In practice, things went a different way, the way of unitarianism [a unitary state], but we now want to create a real, strong Union of sovereign states. See endnote.

Revenko asserts that the central government would continue to control the following spheres -- defense, the borders, and the KGB; foreign policy, foreign trade, and customs; human rights; monetary policy, prices and standards (which would imply a central banking system and one currency); energy supplies; transport; regulation of the environment; and guarantees for scientific and technical progress.

Revenko claims that the current “federal” government can be transformed into a genuine federation. Given his starting point in the 1922 Leninist compact, however, it is small wonder that the Baltic states and others have said they do not want any part of such a federation. But Revenko seems unperturbed. This is what he proposes for the Baltic states:

…. And in that Union, if the Baltic republics want to have some kind of special status, taking into account historical and other circumstances, the republics could find such a place after discussing and reaching mutual agreement. Therefore, our idea is not to destroy the existing Union, but truly to create it anew and to strengthen it as somewhere that each republic and each nation could have its place.

.... [W]e are evidently facing the need to reinterpret the so-called role of the center; what is meant by the Union and what is meant by the center. Of course, the most acceptable way would be for the Union to be directed from below. But, I am an adherent of the theory that each member state should bear responsibility for the Union, and not as now, where some sort of center is responsible for the Union, while the republic is as though not responsible for the creation of the Union. We believe that the result must be equal responsibility of all for the Union which we have created. See endnote.

Yet Revenko remains adamant in his insistence that any republic wishing to secede from the Union must follow the provisions of the new secession "law" [see endnote] -- a term I place in quotes because its legal bona fides are highly questionable. Konstantin Lubenchenko, the Deputy Chairman of the USSR Supreme Soviet Committee on Legislation, Legality, and Law and Order, has asserted that the secession law is immoral and unenforceable. See endnote. Arguably, this "law" is also unconstitutional -- assuming that the Soviet Constitution is itself worthy of the name.

Unfortunately, that assumption is by no means self-evidently valid. The Soviet Constitution, like the 1922 Union Treaty, is also a "formal" document -- essentially a scam. It is a political tool that was never intended to be legally binding. Its terms are not self-executing. Without enabling legislation, they cannot be enforced directly by individuals or republics seeking constitutional protections. What little enabling legislation has been enacted during
perestroika is woefully inadequate. Gorbachev's amendments of 1988, 1989, and 1990 have not rid the Constitution of its formal (and hence fictitious) character.

Nevertheless, assuming that the Constitution is the supreme law of the land, the secession law is unconstitutional because (a) it impermissibly restricts an unqualified constitutional right of the republics "freely to secede from the Union"; (b) its terms are what any competent lawyer would have to call unconstitutionally vague; and (c) the Chairman of the USSR Supreme Soviet, A. Lukyanov, specifically promulgated this "law" as a retroactive law. He did so, not coincidentally, following Lithuania's March 11 proclamation that it was reasserting its status as an independent nation. Lithuania's reliance on the Constitution's secession right was secondary to its reliance on history; even so, its "formalist" sin of asserting its desire "freely to secede from the Union" resulted in harsh punishment.

Although the 1922 conception of the USSR’s compact was a scam, current Union Treaty policies explicitly harken back to it as if it were a divine conception -- something requiring, at most, modern-day fine tuning and perfected implementation. Is it possible that Revenko, charged with responsibility for that perfected implementation, is unaware of the true provenance of the Leninist model? A month ago, Revenko reiterated the current policy thus
:

Formerly, when the first four republics negotiated the formation of the Union [is he kidding?, how can we take the rest seriously?], everything was clear: world revolution, a shining future, away with the darkness of tsarism. And, of course, objective political and economic necessity. Today, I believe, the core of the Union treaty should be the assurance without exception of the rights and liberties of each citizen, in each republic, in each point of the Soviet Union. This is the fulcrum on which the approaches to a future and renewed Union are today being shaped.

There is a collective search for the formula: What is meant by a regenerated Union? The opinion that the future Union will be a Union of sovereign states, in which each of the founders is responsible for the fate of the entire country and all are responsible for each, is becoming established increasingly…. Who should draw up the Union treaty? There is agreement that this should be a treaty created by sovereign republics, not one imposed by someone or other. See endnote.

Czechoslovakia's President Vaclav Havel put the matter best: “Too often in this corner of the world, fear of one lie leads only to another lie, in the vain hope that it will cover up not only the first but also the very practice of lying. But lying can never save us from the lie. Falsifiers of history do not safeguard freedom but imperil it." See endnote.

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CONCLUSION: THE NECESSITY FOR AN HONEST START

Much credit must be given to Gorbachev for starting his reform process with a call for glasnost, an honest appraisal of the past and present, as well as a full and free debate about the future. A sea-change of reform has been set in motion, something of potentially world-shaking significance for the good of humanity.

But Gorbachev's learning curve, though steep, has not kept pace with that of the reform process he initiated. Unless he can catch up, history will thrust him aside. Above all, he must catch up with the current requirements of
glasnost: forthright repudiation of Lenin, Leninism, and the whole rotten, dishonest, tyrannical basis of the present regime.

Solzhenitsyn urges that the Communist Party relinquish power, not because it lacks authority (although it does), but as penance for the terrible evils it let loose upon the country and the world. He demands that the Party give up not only power, but also the accumulation of wealth and privilege it has plundered. Can it do so? Is it possible to orchestrate so massive and essential a transformation in a manner which ensures that the legitimate interests of the country and the world in maintaining base-line continuity will be met? If not, what is possible?

It is probably unrealistic to recommend wholesale resignations and capitulations like those advocated by Solzhenitsyn -- although I happen to believe that the Kremlin leadership ought to give such a course serious consideration. Perhaps, as a more realistic alternative, the best we can hope for is that this hierarchy will abandon, not power as such, but its basis: obfuscation and tyranny. Not only is this a realistic alternative -- it is a minimal requirement for further reform.

This abandonment of lies and coercion must not be hidden under a bushel. It must be proclaimed forthrightly and accompanied with concrete steps of atonement. Full penance for all past evils is impossible to imagine, but even partial penance for some of them would be a welcome and necessary gesture.

I would like to propose such a gesture -- a simple apology to the Baltic states, coupled with immediate steps leading to the complete independence they have too long been denied due solely to lies and tyranny.

Gestures of this kind would go a long way towards keeping alive the hope that the process of
glasnost and perestroika is real and irreversible -- that the present government of the USSR is determined to see this process through to a healthy constitutional democracy based on majority rule and minority rights.

This reform process is stalling badly, and the problem is not merely one of economic production and distribution: the current leadership is demoralized, literally sapped of its moral energies. The best antidote to this demoralization would be a healthy dose of … human decency, simple probity … the antithesis of all that has been rotten for seven decades.

Glasnost was the first principle of Gorbachev's reform movement. He was on the right track. Whatever new constitutional order emerges from the old, it must be based on honesty, integrity, probity. To that end, the Leninist order must be decisively repudiated. And the evil empire he set up must be dismantled -- responsibly, step by difficult step, but without compromising the truth about its origins. Whatever emerges in its place, only truth can make it free.

Endnotes

1  Lowry Wyman, J.D., University of Pennsylvania. The author was (at the time of this writing) a Fellow of the Russian Research Center, Harvard University. Unless otherwise indicated, all translations from Russian are hers.
Link to CV. The author gratefully acknowledges the invaluable assistance of her husband, Barnabas D. Johnson, J.D., Harvard University. Go back.

2  Aleksandr I. Solzhenitsyn, "How to Revitalize Russia," Komsomol'skaya Pravda, September 18, 1990; excerpted and translated in The New York Times, September 19, 1990, at 8. Another translation of the entire article appears in FBIS-SOV- 90-187, September 26, 1990, at 37-58. Go back.

"It is the descent whither the scum and filth that attends conviction for sin doth continually run, and therefore it is called the 'Slough of Despond'." John Bunyan,
The Pilgrim's Progress. Go back.

Richard Pipes,
The Russian Revolution (Alfred A. Knopf, New York, 1990). Go back.

To those who persist in asserting the fundamental viability of Leninist foundations, I offer the words of John Proctor during his witch-hunt trial in Arthur Miller's Crucible: "A fire, a fire is burning! I hear the boot of Lucifer, I see his filthy face! And it is my face, and yours…. For them that quail to bring men out of ignorance, as I have quailed, and as you quail now when you know in all your black hearts that this be fraud -- God damns our kind especially, and we will burn, we will burn together!" Go back.

Izvestiia TSK KPSS, No.9, 1989, at 192-216. Go back.

Stalin, "Draft Resolution on the Relations Between the RSFSR and the Independent Republics," August 11, 1922. Id. at 192. Go back.

Id at 198. Go back.

Id at 198-99.
Go back.

10  Id at 215-216.
Go back.

11  Note the reversal of "socialist" and "soviet"; I do not know whether this is an archival misprint or has deeper significance. Go back.

12 
Izvestiia, supra, at 205-206. Go back.

13  Id at 206. Go back.

14  RLR Report: "USSR -- Sidelights on 1922 Union Treaty" (Munich, September 11, 1990). Go back.

15  Richard Pipes'
The Russian Revolution is devastating on this point. In the last chapter, entitled "The Red Terror," Prof. Pipes shows beyond doubt that Lenin's program from the start sought to create a police state. In order to accomplish this, he relied on terror and obfuscation. For example, when Isaac Steinberg, Lenin's Commissar of Justice, protested the systematic execution of political opponents by asking, "Then why do we bother with a Commissariat of Justice? Let's call it frankly the Commissariat for Social Extermination and be done with it!", Lenin reportedly brightened and replied, "Well put … that's exactly what it should be … but we can't say that." Id. at 795.
 

Steinberg described the Red Terror as "… not an individual act, not an isolated, fortuitous -- even if recurrent -- expression of the government's fury. Terror is a system … a legalized plan of the regime for the purpose of mass intimidation, mass compulsion, mass extermination. Terror is a calculated register of punishments, reprisals, and threats by means of which the government intimidates, entices, and compels the fulfillment of its imperative will. Terror is a heavy suffocating cloak thrown from above over the entire population of the country, a cloak woven of mistrust, lurking vigilance, and lust for revenge. Who holds this cloak in his hands, who presses through it on the entire population, without exception? .… Under terror, force rests in the hand of a minority, the notorious minority, which senses its isolation and fears it. Terror exists precisely because the minority, ruling on its own, regards an ever-growing number of persons, groups, and strata as its enemy.… This "enemy of the Revolution" … expands until he dominates the entire expanse of the Revolution.… The concept keeps on enlarging until, by degrees, it comes to embrace the entire land, the entire population, and, in the end, 'all with the exception of the government' and its collaborators." Id. at 793. Prof. Pipes notes that Steinberg wrote these words between 1920 and 1923. Go back.

16  Solzhenitsyn, supra. Go back.

17  New Federalists would probably make an exception in the case of the Baltic states, perhaps Moldavia, but they appear to adopt the basic premise of continuity between the old and the new. Go back.

18  This is the theory underlying Sakharov's "Draft Constitution of the Union of Soviet Republics of Europe and Asia." Sakharov's new Union would be purely voluntary. Its dimensions would reflect the results of an "opting in" rather than "opting out" process. Go back.

19  FBIS-SOV-90-143, July 25, 1990, at 45. Go back.

20  Id. at 45-46. Go back.

21 
Vedomosti S”ezda Narodnykh Deputatov SSSR i Verkhovnogo Soveta SSSR, No. 15, 1990, at 303-308 (items 252 & 253). Go back.

22  "Unworkable Laws,"
Izvestiia, July 7, 1990, at 3. Go back.

23
Rabochaya Tribuna, September 20, 1990, at 1-2; from FBIS-SOV-90-187, September 26, 1990, at 32-33. Go back.

24 Excerpt from Vaclav Havel's address at the opening of the Summer 1990 Salzberg Music Festival. Go back.
 

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