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University of Pennsylvania Journal of International Law

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The foundational assumption of constitutional governance poses a conundrum for contemporary state-builders: a constitution heavily influenced by foreigners does not represent the views of the governed. Can a modern state-building effort foster democratic institutions when the new government reflects foreign? Nowhere was this tension more apparent than in Afghanistan, where the United States and the United Nations were heavily involved in drafting the 2004 Constitution. They shaped the process from the initial framework to the final, frenzied approval. Foreigners were engaged at both the procedural level—determining how the negotiations would occur and who would participate—and at the substantive level—providing input about particular provisions. Using judicial review as a lens through which to understand the constitution-writing process, this article shows how foreign involvement led to a final draft that failed to resolve a fundamental issue of governance: what institution had the authority to interpret the constitution. The resulting confusion contributed to an ineffective central government and, eventually, the quick downfall of the Afghan government.



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