Constitutional Justice

CHAPTER SIX
Constitutional Justice

This chapter turns to the nature and role of constitutionalism in periods of political change. The central dilemma is how to reconcile the concept of constitutionalism with revolution: Revolutionary periods and their aftermath are times of political flux and, as such, present tensions with constitutionalism, which is ordinarily considered to bind an enduring political order. Consider the prevailing conception of the relation of constitutional to political change and, in particular, the modern claim for constitutionalism as foundational to democracy. This model, it is argued here, best describes an eighteenth-century view of the relation of the constitutional to the political; hence it cannot capture the constitutional developments associated with political change during the last half century and, as such, needs to be supplemented.¹ This chapter explores contemporary manifestations of constitutionalism, particularly of the last wave of substantial political change, and contends that these give rise to another paradigm of transitional constitutionalism, providing an alternative account of constitutionalism in its third century. The alternative paradigm proposed here should have ramifications beyond the transition for prevailing understandings of constitutionalism, judicial review, and relevant interpretive principles.

Constitutionalism in periods of political change it is contended stands in “constructivist” relation to the prevailing political order. Transitional constitutionalism not only is constituted by the prevailing political order but also is constitutive of political change. This is the constitutional document’s constructivist role. Transitional constitutions arise in a variety of processes, often playing multiple roles: serving conventional constitutions’ purposes, as well as having other more radical purposes in transformative politics. Transitional constitution making is also responsive to prior rule, through principles that critically refine the prevailing political system, effecting further political change in the system. Transitional constitutions are simultaneously backward-and forward-looking, informed by a conception of constitutional justice that is distinctively transitional.

The Prevailing Models

Theorizing about the nature and role of constitutionalism in periods of political change is commonly guided by competing realist or idealist perspectives. In the realist view, constitutions in periods of political change are thought simply to reflect the prevailing balance of political power and, therefore, are epiphenomenal with, and arise by virtue of, the provenance of the political change.2 Under this view, it is not at all clear what distinguishes the making of a constitution from other lawmaking; what, if any, is the distinctive value of constitutions in the transition? As such, this approach offers little to the project of discerning the significance of the nature and role of constitutionalism in such periods.

It follows that the dominant approach to the study of constitutionalism in periods of political change derives from idealist constitutional theorizing, where there is a normative claim for a strong connection between revolution and constitution making. This strong connection first appears in the classical constitutional model in Aristotle’s writings. Although the classical understanding of constitutionalism generally is not considered to follow an idealist model, in its view of the relation of constitutions to political change, it shares affinities with the model discussed herein. Its modern expression appears in Hannah Arendt’s work, and a contemporary articulation can be found in the work of Bruce Ackerman, discussed in this chapter. Although these are different in important aspects, there are affinities among these claims for the potential of constitution making in effecting political change. Below, these views are explored and discussed as a triad in the intellectual history of constitutional politics.

Constitutionalism in periods of political transformation raises a basic tension between radical political change and the constraints on such change that would appear to be the predicate of constitutional order. In the idealist model discussed more fully below, the dilemma is reconciled by positing that constitutionalism functions as the very basis of the new political order: a claim for constitutional foundationalism.

The Classical View

In the classical view, the constitution is understood as the state’s fundamental political arrangements, the distinctive form or organization determining its structure and function. In the Aristotelian view, constitutions are organic entities: “The ’constitution’ of a state is the organization of the offices …“³ On this understanding, the constitution is at once normative and descriptive. “[T]he association which is a state exists not for the purpose of living together but for the sake of noble actions.”⁴ Accordingly, in the classical view, revolutionary political change means constitutional change. Radical political transformation does not necessarily require a change in political leadership, representation, or membership, for it is the constitution that determines the identity of the polis. When the constitution changes, so does the polis: “For the state is a kind of association—an association of citizens in a constitution; so when the constitution changes and becomes different in kind, the state also would seem necessarily not to be the same.”5

The classical account of constitutional politics is organic constitutionalism. In the classical view, the unity of the acts of revolution and constitution mediates the dilemma posed by the relation of constitutionalism to political change. Issues of justice remain, despite the move to a more democratic order. Yet this account leads to the following questions: What is the relationship between reconstitution and political change? How does the new constitutional consciousness that defines the transition occur? The classical paradigm invites, but does not elaborate, a theory of the role of constitutionalism in the process of political change.

The Modern Claim

As distinguished from the classical view, modern constitutional theory emphasizes normative limits on state power of a structural and individual rights nature. Nevertheless, as we shall see, aspects of the classical conceptualization remain pertinent to the modern model, at least with regard to the reigning vision of the nature and role of constitutions in periods of political change. The classical view equates constitutions with political arrangements, with implications for the preeminent nature and role of constitutionalism in periods of political change. The paradoxical role of modern constitutions is that they are considered to provide such limits on government despite periods of political change. How is one to reconcile the modern view of constitutionalism with constitutional change?

This is the dilemma of constitutionalism in the context of massive political change. For Hannah Arendt, the dilemma is resolved through a rethinking of the theory of constitutionalism. Rather than conceptualizing constitution making as counterrevolutionary and the opposite of political change, the “truly revolutionary element in constitution-making” is “the act of foundation.”⁶ The Arendtian vision of revolutionary constitution making draws heavily from American constitution making. In this version, the apparent dilemma of the incompatibility of revolution and constitution disappears; the two political acts merge. The constitution is deemed the culmination of revolution; it is the “deliberate attempt by a whole people at founding a new body politic.”⁷

The Arendtian vision resolves the tension between revolution and constitutionalism through the mediating idea of foundation. America’s revolutionaries are described as “Founding Fathers” preoccupied with “permanence.” In constitution making, their purpose is “the deeply felt desire for an Eternal City on earth,” and the wish to create a government that “would be capable of arresting the cycle of sempiternal change, the rise and fall of empires, and establish[ing] an immortal city.”⁸ The notion of a founding elegantly reconciles the dilemma of political change with constitutional permanence. Though paradoxical, the very nature of the revolutionary change sought is the constitutive act of founding. American constitutionalism is distinguished by the paradox of constitutional change: It is revolutionary but lasting. The American posture toward its revolution ushered in a new paradigm of constitutionalism as foundational to its democratic order. In this paradigm, constitutionalism was something other than its classical sense, identified with the political order. It was also more than constitutionalism in the Magna Carta sense, as protective of negative liberties. The idea of constitutional democracy transcended the protection of individual rights. “Constitution-making” is considered by the framers as “the foremost and the noblest of all revolutionary deeds.”9 An idealized foundational constitutionalism had the potential to embody the full normative sweep of the revolution.

Building on the Arendtian account, American constitutionalist Bruce Ackerman also makes a strong normative claim for constitution making as foundational to democratic revolution. On this view, constitution making is the necessary and final stage of liberal revolutions, a revolutionary “constitutional moment” of rupture from the ancien régime and the founding of a new political order.¹⁰ “If the aim is to transform the very character of constitutional norms, a clean break seems desirable….” For Ackerman, a “legitimate order” depends on “a systematic effort to state the principles of a new regime.” In the more contemporary constitutional theorizing, transformative constitution making is not limited to the revolution; instead, there are potentially many more such constitutive moments. By extending the possibility of transformative constitution making beyond the revolution, Ackerman contributes to the modern model a helpful categorical distinction between ordinary and constitutional politics. Within the “dualist democracy” framework, ordinary political change and constitutional change proceed on separate tracks, offering a neat resolution of the dilemma posed by constitutionalism in revolutionary periods. By a move defining “dual” categories of “ordinary” decision making by government as opposed to “higher” lawmaking by “the People,” the dilemma with which this chapter begins, of constitutionalism and radical political change, seemingly falls away.¹¹ In a dualist democracy, the dilemmas of constitutional beginnings, constitutional change, and constitutional review are made to disappear.

In the contemporary model, constitution making relates to revolution through higher lawmaking, yet the distinction between higher and lower lawmaking remains ambiguous. What distinguishes higher lawmaking is a distinctive process, a particular timing. There is considered to be a constitutional onset period, a window of time for constitution making or “constitutional moments.” Constitution making occurs before the establishment of other laws and institutions.¹² Higher lawmaking also implies heightened, deliberative decision making. “The higher lawmaking track … employs special procedures for determining whether a mobilized majority of the citizenry give their considered support to the principles that one or another revolutionary movement would pronounce in the people’s name.”¹³ Foundationalists embrace the view that the special status of constitutional politics derives from its popular sovereignty, expressed through special constitutional convention processes. Constitutional politics is considered to correspond to a higher level of popular deliberation and consensus and, as such, is distinguishable from ordinary politics. This conception relies heavily on the circumstances of the American founding. This conception of constitutional politics depends on the view that the American constitutional conventions implied broad popular consensus. Yet this claim is somewhat controversial. Perhaps the processes considered to be predicates of constitutional foundationalism ought to be interpreted at a higher level of generality. Understood this way, low participation in constitutional ratification processes would not be fatal, as long as participation is better than the ordinary political participation of the time. A transitional perspective helps to explain why in periods of political upheaval, even limited popular participation may well suffice to legitimate constitutional transformation.14 In the prevailing contemporary paradigm, there is a strong claim for linkage between meaningful political change and constitutional change. The constitutional ideal is forward-looking; the purpose is to put the past behind and to move to a brighter future. Constitution making is conceived as the foundation of the new democratic order.

Although its claims have been universalized, contemporary constitutional theory itself derives from a distinctive political context, specifically the eighteenth-century revolutions. Whereas the modern understanding does not define constitutionalism as a state’s political arrangements, as in the classical understanding, the modern vision of constitutional politics is inextricably connected to particular revolutions and past political orders. Although the American experience is thought to exemplify foundational constitution making, in recent years a broader prescriptive claim has been leveled at other states in the process of transition. Thus, in The Future of Liberal Revolution, the foundationalist vision is extended to the contemporary post-Communist transitions. Invoking the United States’s constitution making, Ackerman exhorts fledgling East European democracies to put aside ordinary politics and to cap their revolutions with a constitution.¹⁵ Yet the view of constitutions as foundational to liberalizing political change offers only a theoretical resolution to the dilemma posed by postrevolutionary constitution making. Further, despite the contribution of contemporary constitutional theory to the political science debate over the criteria for liberalizing change, this book contends that liberalizing political change is associated with varieties of legal responses, beyond the constitutional response. The dominant model is highly idealized and, as such, cannot account for many constitutional phenomena associated with periods of political transformation. Instead, contemporary constitutionalism necessitates rethinking the prevailing theorizing about the relation of political to constitutional change. With constitutions in their third generation, constitutional precedents of the late twentieth century suggest that the model overstates the differences between ordinary and constitutional politics. As suggested below, instances of constitutionalism in periods of substantial political change reveal diverse manifestations of constitutional politics.

A Transitional Counteraccount

This part proposes another account of transitional constitutionalism that better captures the constitutional politics associated with transformative periods. Constitutionalism in periods of radical political change reflects transitionality in its processes, as developments in periods of political upheaval suggest. Constitutions are not created all at once but in fits and starts. Constitution making (as discussed below) often begins with a provisional constitution, predicated on the understanding of subsequent, more permanent constitutions. Despite prevailing notions of constitutional law as the most forward-looking and enduring of legal forms, transitional constitution making is frequently impermanent and involves gradual change. Many of the constitutions that emerge in periods of radical political change are explicitly intended as interim measures. Whereas prevailing theorizing conceives of constitutions as monolithic and enduring, some features of transitional constitutions are provisional, and others become more entrenched over time.

The “constructivist” account proposed here bears a certain similarity to the processes characterized in more idealized form in Rawlsian theory elaborating gradual construction of political consensus. John Rawls uses the term political constructivism to describe the gradual emergence of constitutional consensus as a result of a step-by-step decision making process that narrows the area of parties’ political differences. The analysis here is constructivist in a somewhat different sense. While (with Rawls) the view proposed here posits that new constitutional elements gradually emerge over time through the political process, here each change in the constitutional order itself produces change in the participants’ perspectives, in turn changing their sense of what is politically possible with consequences for the potential for constitutional consensus.16

The notion of transitionality has a number of normative implications. Within prevailing theory, constitutionalism is commonly understood as unidirectional, forward-looking, and fully prospective. Once retrospective political understandings are included, the prevailing ideal becomes a poor model for transitional constitutional phenomena. While the picture of a polis at constitutional point zero might have been appropriate for describing constitutionalism in the eighteenth century, in the late twentieth century, constitutions associated with political change generally succeed preexisting constitutional regimes and are thus not simply created anew.

The construction of new constitutional arrangements in periods of radical political change is informed by a transitional conception of constitutional justice. Constitutional law is commonly conceptualized as the most forward-looking form of law. Yet transitional constitutionalism is ambivalent in its directionality; for the revolutionary generation, the content of principles of constitutional justice relates back to past injustice. From a transitional perspective, what is considered constitutionally just is contextual and contingent, relating to the attempt to transform legacies of past injustice.

The study of constitutionalism in periods of political change suggests that transitional modalities vary in constitutional continuity. The constitutional types proposed here, like Weberian ideal types, do not lay claim to comprehending all constitutional phenomena but, rather, are offered for their help in understanding diverse constitutional phenomena. These also resonate with other transitional legal responses that evince similarly varying modalities. Thus, other chapters in this book have previously discussed transformative legal responses in adjudicative and punitive forms. Whereas in its “codifying” modality, constitutionalism expresses existing consensus, rather than transformative purpose. In its transformative modality, by contrast, in what is here termed “critical” constitutionalism, the successor constitution explicitly reconstructs the political order associated with injustice. In yet another transformative form, in which successor constitutions are used to return to the pre-predecessor constitutional order, such constitutionalism might be considered as “restorative.” When the successor constitution is a holdover from prior rule, one might consider these manifestations of constitutional continuity to be “residual.” As a review of illustrative constitutional developments in periods of political flux will show, many transitional constitutions incorporate aspects of more than one of the proposed types. These constitutional constructions mediate periods of political change.

My aim here is to interpret how states move from illiberal regimes to those that are more liberal and to explore the role constitutions play in constructing these political changes. Below, a number of cases are explored that illuminate the nature and role of constitutionalism in periods of political transformation. The phenomenon of transitional constitutionalism goes back to ancient times, to the account of the constitution written after the Athenian revolution. With the revolution, there was much debate about the nature of the desired political system, a debate that culminated in two draft constitutions, one for the “immediate” crisis and another “for the future.”17 With such historical transitions came the dilemma of squaring revolutionary political change with constitution making. As we shall see, similar gradual constitutional processes take place in contemporary transitions.

Brokering Out of Authoritarian Rule

In contemporary theorizing, the constitutional ideal is the culmination of the revolution and the foundation of the new democratic order. The constitution somehow transcends its politicized origins, as constitutional politics transcends ordinary politics. By contrast, in the realist model, the nature and role of constitutions in negotiated transitions is largely conceived in political terms, and constitutions are conceived as extensions of ordinary politics.¹⁸ The two prevailing views take opposing positions on the place of constitutionalism in transformative politics. Neither model, however, adequately explains the nature of constitutional politics in contemporary political change. Examining the roles of constitutions in periods of postauthoritarian rule illuminates the constructivist constitutional paradigm. While constitution making is shaped by periods of radical political change, it also helps construct the political opening that allows transition.

Transitional constitutions broker the political shifts from authoritarian rule. They construct interim periods of substantial liberalizing political change, albeit not equivalent to a fully democratic order. Such constitutions are transitional in a number of senses: Their processes are plainly transient; their instruments are at least in part provisional. Such constitutions frequently suffer from features held over from the predecessor constitutional regime, features one might consider residual. Examples of such constitutions arise in Europe’s historical negotiated transitions, as well as in the more recent wave of political change.