The beginnings of weak constitutionalism

8    The Beginnings of Weak Constitutionalism

Constituent power should be understood as the ‘missing link’ in the debate about constitutionalism and democracy. After all, that debate is, in the last instance, about the ways in which constitutionalism appears to negate democracy at the level of the fundamental laws; about the ways it might hinder the people’s faculty of making and remaking constitutions. It is true that constitutionalism can be made consistent with the idea that the authority of a constitution is derived from the sovereign people, and that the demos has (at least theoretically) the right to have any constitution it wants. The problem, as we saw in Chapter 2, is that after a constitution is in place, constitutionalism’s main function (that of limiting political power) runs counter to the idea of creating opportunities for ordinary citizens to make episodical appearances and engage in important constitutional transformations. In other words, as a matter of actual political practice, the people’s ultimate political power is also seen as the object of constitutionalism’s limiting role.¹ What constituent power does is point to some instances in which a departure from constitutionalism is warranted; episodes in which the citizenry exercises its democratic right to (re)create the constitutional regime under which it lives.

A democratic constitutional theory, like the one that this book has been attempting to advance, would thus have an important place for the concept of constituent power. It would defend the idea that a constitutional regime should provide an opening for constituent power to manifest when important constitutional transformations are needed and would make significant demands on constitutional regimes. It would require a set of political arrangements according to which episodes of fundamental constitutional change only take place through highly participatory procedures, and a constitution that gives citizens the means to activate those procedures. That is to say, a democratic constitutional theory would see citizens as the potential authors of a new or importantly transformed constitutional regime, and propose a set of constitutional forms that allow them to engage in constituent activity. A constitution consistent with such a theory would conform to the conception of democratic legitimacy defended in Chapter 6; it would involve a radical transformation of the ideal of constitutionalism and an important re-examination of the current ‘balance’ between constitutionalism and democracy. In short, a democratically legitimate constitutional regime would only be consistent with a weak consti-tutionalism.

On the contrary, weak constitutionalism recognises this tension as an inevitable consequence of having a constitution and makes it even more obvious by giving citizens the institutional means to act together to take precedence over the constitutional text, even if only episodically.2 Weak constitutionalism does not see constitutional change as a “dramatic and threatening occurrence that, given its nature, should be avoided by all means or at least postponed at much as possible” (as the Venezuelan Supreme Court of Justice once wrote about the prevailing attitude to constitutional reform),3 but as part of a continuing effort by the citizenry to construct a more just constitutional regime.

Second, weak constitutionalism rests on a distinction between the two dimensions of democracy and, instead of seeing democracy exhausted at the level of daily governance, aspires to the realisation of democracy at the level of the fundamental laws. When an important constitutional transformation is needed, it mandates that changes to the constitution are made through the kind of processes present during a democratic constitution-making episode. Weak constitutionalism assumes that there is an important aspect of the democratic ideal that cannot be exhausted or constrained by a constitution, a dimension of democracy that is episodical by nature and that always escapes the very constitutional forms it might seek to transform. The issue, of course, is not about a form of constitutionalism that requires the direct vote of the electorate every time a constitutional change is to become valid. Democracy at the level of the fundamental laws is not simply about a process in which experts draft a constitution and then submit it to a ‘yes’ or ‘no’ vote in a referendum (which does not necessarily promote discussion and debate among citizens).⁴ Instead, it requires mechanisms through which citizens are allowed to participate in proposing, deliberating and deciding upon the content of the constitution.

Third, weak constitutionalism mandates a constitutional regime consistent with the basic principles of democratic openness and popular participation. It is a form of constitutionalism that, instead of insisting on the preservation of the constitutional forms, seeks to create the conditions suitable for their transformation. While some of those forms might be constitutive of the citizenry’s ability to call into question and alter the constitutional regime (as in the case of basic political rights), weak constitutionalism does not attempt to put limits on the constituent power. It rests instead on the assumption that a democratic people, acting through inclusive and participatory procedures, would not seek to constrain their future ability to participate in the creation or re-creation of their constitution. In this respect, weak constitutionalism reinforces the idea that a constitution’s ‘openness’ must always be of a democratic nature, and should be accessible to the citizenry acting through procedures that come as close as possible to the ideal direct-assembly democracy.

Fourth – and this feature in a way encapsulates all the others – weak constitutionalism does not see constituent power as a threat. This means two different things. As noted above, it means that weak constitutionalism does not look at fundamental constitutional change with suspicion, but as providing an opportunity to improve the established constitutional regime, extend its protections and come closer to a society of equals. Of course, this is not to say that every exercise of constituent power will result in a more just and inclusive constitution. As Habermas has noted, an open constitutional regime is not immune to “contingent interruptions and historical regressions, [but] can be understood in the long run as a self-correcting learning process”.⁵ It also means that weak constitutionalism rejects the Lockean view of the exercise of constituent power as restricted to situations of extreme governmental abuse or as a one-time event that is forever channelled through the ordinary process of constitutional reform. In contrast, it accepts the Sieyesean and Schmittian conceptions of constituent power as not being absorbed by the constitution-making act and as susceptible to being exercised at any moment after a constitution is in place. In this respect, it is a conception of constitutionalism that seeks to comply with the basic condition of democratic legitimacy: it leaves the door open for the future exercise of constituent power, for futures episodes of democratic re-constitution.

Fifth, weak constitutionalism does not approach all constitutional changes in the same way. It assumes that some changes are more fundamental than others and that some apparently partial modifications of the constitution may amount to the creation of a new constitutional regime. Accordingly, weak constitutionalism is highly consistent with the idea, considered in Chapter 7, of implicit limits to constitutional reform (even though, as we will see later, it would not necessarily attribute to judges the power to separate the fundamental from the non-fundamental). It not only recognises that the constitution should be open to change, but also that the procedures to be used for its transformation are related in important ways to the nature of the changes at issue. The more fundamental the change, the more likely it amounts to a re-constitution and the more necessary it is for it to take place through a highly participatory procedure. If a constitutional regime is altered in fundamental ways through the ordinary institutions of government, its democratic legitimacy would immediately be called into question. This is partly why weak constitutionalism comes accompanied by the idea that important constitutional transformations should not be the work of ordinary institutions. These institutions are designed to operate at the level of daily governance, where intense episodes of popular participation are not always possible. Weak constitutionalism is thus not consistent with a constitution that, just like ordinary law, can be changed by democratic majorities if the term ‘democratic majorities’ simply refers to a majority of state officials sitting in a legislature.

Sixth, weak constitutionalism does not see citizens simply as human beings with rights who participate in politics through the election of officials every few years, but as those who are allowed to take part in the (re)positing of the norms that govern the state. In other words, a citizen is someone who participates in the democratic legitimation of the constitutional regime and knows that, despite all the imperfections of such an order, it can be changed. Not only is this conception of the citizen more consistent with democracy, but it might also result in citizens developing a sense of identification with the constitutional regime, seeing the constitution as theirs – as their work-in-progress – and not simply as the embodiment of the will of a mysterious ‘People’ or the product of judicial interpretation.⁶ As will be argued in the next two chapters, when important constitutional transformations are needed, this active citizenry engages in different types of informal (and sometimes even ’illegal’) political practices in order to create the political climate necessary for constituent power to be activated.

Finally, a constitutional regime based on either a written or unwritten constitution can operate under a weak form of constitutionalism. It is not the ‘writtenness’ or ‘unwrittenness’ of the constitution that matters (or the fact that it can or cannot be ordinarily amended in the same way as an ordinary law)7 but the way in which it approaches constituent power. However, as we will see below, weak constitutionalism would require a partial reconstruction of the doctrine of parliamentary sovereignty.

Exercising Constituent Power or Weak Constitutionalism’s Mechanisms

As we have seen in previous chapters, the amendment processes of most written constitutions seek to make constitutional change difficult and unlikely. While unwritten constitutions normally fare better in this respect, they, just as their written counterparts, allow fundamental constitutional changes to occur without any significant degree of public involvement. Even those constitutions that require a government-initiated referendum before some (or all) constitutional amendments come into effect, fail to provide ordinary citizens with the means to propose, deliberate and decide upon the content of the fundamental laws. This traditional approach to constitutional reform is a reflection of, on the one hand, constitutionalism’s aspiration to permanency and, on the other, constitutionalism’s fear of constitutional change (particularly if it involves ordinary people meddling with the content of the constitution). In contrast, weak constitutionalism mandates that a constitution remains open to change and that fundamental constitutional transformations take place through the most participatory procedures possible; in other words, through an exercise of the people’s constituent power.

But what could it mean for the people to exercise constituent power? Previous chapters of this book have suggested that an extraordinary assembly, elected and convened with the specific purpose of drafting a new constitution, could be understood as facilitating the exercise of constituent power. Nevertheless, it is clear that such an assembly, just as an ordinary legislature, is a representative body composed of delegates elected by the people, but it is not the people.⁸ In fact, the very idea of the people ‘giving itself a constitution through the exercise of constituent power’ has been challenged by many constitutional and political theorists. It has been argued, for example, that this position is based “on an unacceptable political mythology”, and that any act of ‘the people’ (a people that is only capable of action through representation) is determined by prior electoral and procedural rules that must be given to the citizenry by someone else.⁹ In what sense, then, can it be argued that an extraordinary assembly may be used to facilitate the exercise of constituent power by the people? After all, the members of a contemporary society cannot spontaneously come together and give themselves a new constitution and so, in that sense, there is no such thing as an exercise of constituent power by the people, at least not in the modern world.

However, there are some rules and procedures that might come closer, even if just a little closer, to the idea of a citizenry giving itself a constitution (even if these rules and procedures were not themselves adopted through a highly participatory process). For example, an elected CA activated by a popular referendum, for the specific and sole purpose of deliberating on the creation of a new constitution, might be closer (although, as we will see shortly, not as close as possible) to an exercise of the people’s constituent power than an ordinary legislature engaging in profound constitutional changes. The idea that extraordinary assemblies are somehow closer to the people than the ordinary legislative body is, of course, nothing new; indeed, it was present in the great revolutions of the seventeenth and eighteenth centuries. The ‘higher’ nature of extraordinary assemblies was associated with the Lockean idea that after a long train of abuses, the people had the right to create a new form of government and that, in order to do so, a special assembly was needed. It was also connected with the view that a legislature is elected with the purpose of adopting ordinary laws, not to engage in profound transformations of the juridical order under which it operates. It was thus maintained in seventeenth-century England that the right to create a new government could only be exercised “by such Persons only as are appointed by the Society for that purpose”. 10

Consistent with that view, the Convention Parliament that met in 1689 without having been summoned by James II and which invited William and Mary to reign jointly – while seen by many as an inferior and legally irregular body – was depicted by some “as something greater, and of greater power than Parliament”.¹¹ Although composed of the Commons and Lords who would usually sit in Parliament, the Convention Parliament was elected specifically to bring the country to a settlement regarding the monarchy and presented William and Mary with a Bill of Rights that sought to limit the powers of the Crown.¹² Not surprisingly, years later, James Otis suggested that the Convention Parliament of 1689 had “created the government anew” (i.e., engaged in an act of re-constitution, according to the terminology adopted in this book) and in that sense was something more than an ordinary parliament.¹³ Nevertheless, it was in eighteenth-century North America where the distinction between an ordinary legislature and a constitution-making body was fully developed. Even though, as in England, extraordinary assemblies were originally seen as legally defective and therefore inferior to ordinary legislatures, they were to become closely associated with a people acting outside the normal institutions of government, with the purpose of transforming them.

The main idea was that the ordinary legislature had no mandate to meddle with the ‘form of government’ and, at the same time, to render a form of government unalterable by an ordinary legislature, a body with a specific mandate from the people was needed. In that vein, Jefferson’s Notes on the State of Virginia stated “that to render a form of government unalterable by ordinary acts of assembly, the people must delegate persons with special powers”.14 Similarly, a Pennsylvania pamphleteer maintained in 1776 that: “Legislative bodies of men [have no power to destroy or create] the authority they sit by.” Otherwise, he continued, “every legislative body would have the power of suppressing a constitution at will; it is an act which can be done to them, but cannot be done by them”.¹⁵ These authors believed that Conventions, as extraordinary constitution-making bodies, were “in a special manner the epitome of the People”, and could thus be used to create and destroy constitutions at will.¹⁶ It has been suggested that by 1780 in Massachusetts, “the theory of Revolutionary constitutionalism required that the body charged with framing the constitution be a special assembly, chosen for that sole purpose, rather than an ordinary legislature”.¹⁷

Not surprisingly, in the New York Convention of 1821, a delegate felt confident enough to reply to the claim that “we were not sent here to deprive any portion of the community of their vested rights”, with a defiant: “Sir, the people are here themselves. They are present by their delegates. No restriction limits our proceedings. What are these vested rights? Sir, we are standing upon the foundations of society. The elements of government are scattered around us.”¹⁸ In a slightly more belligerent tone, Onslow Peters claimed during the Illinois Convention of 1847 that: “We are . . . the sovereignty of the State. We are what the people of the State would be, if they were congregated here in one mass meeting.”¹⁹ “We are,” he added “what Louis XIV said he was: ‘We are the State.’ We can trample the Constitution under our feet as waste paper, and no one can call us to account, save the people.”²⁰

The idea that important constitutional changes must take place through extraordinary bodies, specifically elected for that purpose, did not survive for long. In the United States, the Federal Constitution of 1787, while technically contemplating a role for special conventions (both at state and national levels), gave the ordinary institutions of government an unlimited power of constitutional reform: the power to create the government anew. In the United Kingdom, the triumph of the doctrine of parliamentary sovereignty came accompanied with a rejection of any legally relevant distinction between the people and the ordinary legislature (a distinction vehemently defended by the Levellers in the mid-seventeenth century).²¹

In a sense, weak constitutionalism is an invitation to return to that abandoned tradition but, as we will see below, with a renewed democratic impetus. Before moving to that discussion, however, it is necessary to consider in more detail the idea of the superiority of special conventions over ordinary legislatures, as well as to supplement it with additional arguments. As noted above, English and North American supporters of special conventions stressed the fact that legislatures are not elected for the adoption of new constitutions. Put in the terminology presented in Chapter 3 of this book, legislatures are elected to engage in the activity of democratic governance, not in the exercise of democracy at the level of the fundamental laws.

There is something in that argument, but it certainly cannot be the only reason for rejecting legislatures as potential constitution-making bodies. For instance, it is not clear why fundamental constitutional changes cannot be adopted by an ordinary legislature and then be subject to a popular vote. After all, legislators are directly elected, the electoral system is (ideally) structured in such a way that the resulting legislative assembly represents different sectors of society and legislators can be held politically accountable. If the concern is simply that the legislature is not normally authorised to engage in fundamental constitutional changes, there could be a special election granting it that power.22

However, there are additional reasons why a CA is a superior mechanism of fundamental constitutional change. To begin with, a legislature might be one of the institutions that citizens intend to alter, and giving ordinary representatives this task would make the adoption of the changes less likely (and would also put legislators in a position of being judges in their own case).²³ Moreover, a CA comprises delegates who, unlike ordinary representatives, are not subject to re-election (since, as explained in Chapter 6, the assembly ceases to exist as soon as the constitution is adopted). Although this might be seen as a negative feature of a CA, in the sense that its delegates cannot be held accountable for their mistakes, it may be conceived as an advantage from the perspective of democratic openness.²⁴ Precisely because they do not have to worry about what will happen in the next electoral campaign, they will feel free to propose and support novel measures beneficial to society at large or to call into question long-established institutions and principles, even against the opposition of small but powerful sectors of society. As Ruth Gavison has expressed: “If the members of the assembly are people who are not directly involved in day-to-day politics, it is likely that their judgment will be less clouded by their own immediate political interests.”²⁵ Delegates to the CA, however, will have to take seriously what they perceive to be the ‘will of the people’ (as well as the reasons for activating this extraordinary constitution-making method), as they know that their proposals will have to be ratified in a referendum before having any legal effect.

Closely connected to the previous points is the fact that a legislature is a body elected and designed with the purpose of dealing with the issues a polity faces on a day-to-day basis (e.g., how to spend government funds or whether certain conduct should be decriminalised). As an institution of democratic governance, it is the natural operating ground of traditional political parties and different sorts of interest groups that aim at influencing public policy. A CA, on the contrary, is concerned with fundamental constitutional change: it is called to operate during exceptional ‘political moments’, to use Wolin’s formulation.²⁶ Its function is to deliberate about the content of the constitution in order to create a constitutional regime that improves the lives of citizens. For that reason, it has the potential to give voice to a whole new universe of participants, attracting the involvement of individuals and groups not traditionally engaged in political activity. In other words, a CA makes clear that the country is going through important constitutional transformations: a period of higher law-making that differs from day-to-day politics and in which all citizens are called to deliberate and decide upon the future of the fundamental laws. Accordingly, it is likely to be more consistent with the principle of popular participation than an ordinary legislative assembly invested with constitution-making faculties.