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Modern Constitutions

The world has seen many new constitutions promising social rights and adopting innovative representative institutions. This book presents examples from the United States, Europe, Africa, and Asia that show these constitutions face many challenges, especially the rise of authoritarian regimes that endanger the rule of law.

Modern Constitutions

Edited by Rogers M. Smith and Richard R. Beeman

2020 | 360 pages | Cloth $69.95
Political Science
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Table of Contents

Introduction
Rogers M. Smith and Richard R. Beeman

Part I. The Example of American Constitutionalism

Chapter 1. Is the Influence of the U.S. Constitution Declining?
David S. Law and Mila Versteeg

Chapter 2. Is the U.S. Constitution Sufficiently Democratic? How Would We Know and Do We Really Care?
Sanford Levinson

Chapter 3. State Constitutional Details and America's Positive Rights
Emily Zackin

Part II. Global Patterns and Problems in Modern Constitution-Making

Chapter 4. Dignity, Rights, and the Comparative Method
Christopher McCrudden

Chapter 5. Beyond Window Dressing: Constitutions in Authoritarian Regimes
Tom Ginsburg

Chapter 6. Unconstitutional Constituent Power
Kim Lane Scheppele

Chapter 7. Communist Federations
Valerie Bunce

Chapter 8. Constitutional Moments and the Paradox of Constitutionalism in Multinational Democracies (Spain, 2006-2019)
Jaime Lluch

Chapter 9. Constituting the State in Postcolonial Africa: Fifty Years of Constitution-Making Toward an African Constitutionalism
Heinz Klug

Conclusion
Rogers M. Smith

List of Contributors
Index
Acknowledgments


Excerpt [uncorrected, not for citation]

Introduction
Rogers M. Smith with Richard R. Beeman

The Tasks of Constitution-Making

Aristotle is said to have compiled a collection of ancient constitutions that informed his studies of politics, writings that retain lasting influence after more than two millennia (e.g., Armstrong 1981, 71). But for Aristotle, constitutions largely distilled and described the distinctive patterns of political life established over time in many differing ways in many places. What constitutionalism has come to mean in the modern era originates chiefly in the late eighteenth century and primarily with the United States Constitution, written in 1787 and made effective in 1789, and the various French constitutions that began in 1791.

In some of their elements, especially in their adoption of representative assemblies, both of these first modern written constitutions were influenced by the prior example of Great Britain's "unwritten constitution" and its parliamentary institutions. With the global expansion of the British Empire through the end of the nineteenth century, the British model of constitutionalism continued to have far-ranging impact, along with the French and the American. Even the constitutions of Russia and the Union of Soviet Socialist Republics after the Bolshevik Revolution drew on these traditions, especially French constitutionalism (Pipes 1990, 161, 516). Then, after World War II brought an end to the age of European empires and a new emphasis in international law on human rights and human dignity, postcolonial nations began crafting new constitutions, a trend that only accelerated through the beginning of the twenty-first century. Beginning with the influential Indian Constitution of 1950, many of these new constitutions started to incorporate a broader range of social rights and recognitions for claims of cultural communities and disadvantaged groups than their historical predecessors, causing many scholars to classify them as instances of "transformative" constitutionalism (Dinghra 2014). As part of the "left turn" in Latin American politics during the early twenty-first century, Latin American nations especially were in the forefront of adopting new constitutions that expanded commitments to "social, economic, and cultural" rights of long-marginalized groups, though efforts to implement the new constitutional guarantees often met with strong resistance (Gargarella 2018, 203).

Today, the practice of formally adopting, if not necessarily governing by, constitutions is nearly universal. The Comparative Constitutions Project, directed by Professors Zachary Elkins and James Melton along with Thomas Ginsburg, a law professor, political scientist, and contributor to this volume, has collaborated with Google to provide online access to all of today's constitutions—a far more massive and fast-changing documentary endeavor than Aristotle confronted, abetted by technology of which he could only dream. Their project currently includes 195 national constitutions. Of those, 132 were adopted in 1975 or later; 65 were adopted in 1995 or later; and many others have been significantly modified during those years. Though it is reasonable to doubt the efficacy of written constitutions in many contexts, it cannot be denied that in the modern era an enormous amount of political effort has been devoted to constitution-making. The twenty-first century shows no signs of it slowing, much less ceasing.

In regard to the central goals of the world's early modern constitution-makers, however, there are now signs that the efficacy of modern constitutionalism may be waning, or at least that constitutionalism is being substantially redirected in many regimes. At the end of the second decade of the twenty-first century, politics and law within many lands and also across national lines have been reshaped by the rise of insurgencies labeled "populist." These movements, most often on the right though sometimes on the left, frequently treat constitutions solely as vehicles for, not as checks upon, the direct expression of the will of the majority, or the will of leaders that claim to speak for majorities. The editors of one recent volume warn that "the global momentum toward constitutional democracy" has now "stalled and perhaps has begun to reverse" (Graber, Levinson, and Tushnet 2018, 2).

A leading student of contemporary populism, Jan-Werner Müller, argues somewhat differently. He holds that not only do modern populist movements claim to speak for democratic "peoples," they also profess to support constitutionalism. But rather than seeing constitutionalism as an effort to guide and limit governmental power through the rule of law, they treat a constitution as "a purely partisan instrument to capture the polity" (Müller 2016, 68). If so, then constitutionalism in the twenty-first century is coming to mean something very different from what "modern" constitutionalism meant in the eighteenth, nineteenth, and twentieth centuries, and something that does entail the decline of many older liberal conceptions of constitutional democracy.

These developments may only mean, however, that modern constitution-makers are in many countries giving different responses to the fundamental issues that constitutionalism always addresses. Reflection suggests that all constitution-making requires answers to at least six broad and basic questions.

First, who has the authority to write a constitution or to propose amendments to that constitution? Can and should it be committees in the legislatures in existing regimes, or executive branch officials, or special teams of experts appointed by one or the other, or members of an elected or appointed constitutional convention, or some other procedure?

Second, who has the authority to enact a constitution in a way that makes it legitimately authoritative? An existing legislature, chief executive, a popular referendum, or elected or appointed ratifying conventions? Or perhaps, as in the case of South Africa's 1996 constitution, might an existing constitutional court have some special role in ratification?

Third and closely related, should a constitution be difficult to amend, so that it can provide enduring structures, limits, and guides for governing? Or should it be more easily alterable, so as always to be responsive to the evolving will of the sovereign people—perhaps as embodied in a populist leader or party?

Fourth, should the constitution be fully written as a single document (even though written amendments can be added)? Or can it instead be in significant measure "unwritten," composed of venerated statutes, long-established customs and norms, and a developing body of judicial precedents, as in the classic British model?

Fifth and broadest, what sorts of governing institutions should a constitution establish—a Westminster-style parliamentary system in which the dominant coalition in the legislature appoints a prime minister or president, as well as all the other major ministers who head the executive branch that directly governs? Or a system like that in the United States, with a separately elected president, and no prime minister, even if there are powerful leaders of the legislative chambers? Or a hybrid, as in modern France, with both a prime minister and a separately elected president? What sorts of judicial institutions are appropriate, and what should their relationship to the other branches be—should there be a special constitutional court disconnected from the regular judicial system, or should constitutional review be a function of some or all regular courts, or should courts defer to the elected legislature or the executive branch on constitutional issues? What should be the division of powers between the national government and any state or provincial governments or autonomous groups and regions, or local levels of government? And there are many other institutional choices to be made—far too many to list here.

Sixth, finally, and perhaps most important: what should the purposes of a constitution be? Should it simply authorize the sovereign people of a society to pursue whatever aims they find desirable, or should it specify shared aims in ways that are meant to serve as bounds as well as guides for what governments can legitimately do? If the latter, should those aims include establishing a national church, or a military authorized to engage in offensive wars, or powers to promote specific kinds of economic activity and social and moral conduct, or to combat group economic inequalities or entrenched patterns of racial, ethnic, gender, class, or regional discrimination?

Out of their fierce opposition to absolutist monarchies, many early modern constitution-makers, especially the Americans, were more concerned to limit the governments they authorized than to prescribe whole ways of life to their communities, in the manner Aristotle found to be characteristic of ancient constitutions. Even so, their constitutions suggested some content for the kinds of lives that could—and could not—be pursued by the populations governed by those constitutions. As noted, modern constitutions often strive to do much more, either by enshrining a broad variety of rights, in the cases of many transformative constitutions, or by enhancing the power of those who claim to speak for the people, in the cases of many populist ones.

America's Example

In this volume, scholars from different disciplines specializing in different parts of the world provide discussions that exhibit many of the answers that modern constitution-makers have given and are giving to most if not all of these questions in their varied settings. They offer reflections on why particular answers have been adopted and how far they may be judged successful. The three chapters in Part I consider the example of the U.S. Constitution. Because it was the first modern written constitution, many analysts, especially American ones, have long approached constitutionalism around the world through the lens of the U.S. example. After the Bolshevik Revolution in Russia, political scientist Henry Jones Ford did contend that "the constitution of the French republic" had come to exceed the American one in influence, as it was more congenial to socialist systems (Ford 1920, 3). Then, as the United States became the world's leading military and economic power at the end of World War II, the power of its constitutional example resurged.

In recent years, however, more and more writers have questioned this focus on American constitutionalism, in light of the long-standing, broad-ranging influence of the British and French constitutions and, especially, in light of the dramatic departures in modern transformative constitutions from the U.S. Constitution's emphasis on a small range of so-called negative rights. The Ecuador's 2008 constitution, for example, includes "positive" rights to education, food, water, health, income supports, and jobs, as well as a broad range of antidiscrimination and affirmative action requirements that go well beyond anything contemplated by the American framers in 1787. Yet, still more recently, as populists have challenged understandings of constitutionalism as imposing limits, the scholarly pendulum has begun to swing the other way, with renewed calls for the relevance of early American constitutional conceptions of negative rights and bounded authorizations of governmental powers (Graber, Levinson, and Tushnet 2018, 5-9).

One prominent contribution to this continuing debate over the global importance of America's constitutional example appears here in updated form. In 2012, David S. Law and Mila Versteeg caused a stir when they argued for "the declining influence of the U.S. Constitution" (Law and Versteeg 2012). Then and still, Law and Versteeg contend that in most of its leading structural particulars, including a presidential rather than a parliamentary system, the systems of representation in the Congress, a presidential selection system involving the electoral college, its forms of federalism and separated powers, as well as its articulation of basic constitutional rights, the U.S. Constitution has few imitators today. Indeed, they argue, no other national system has been modeled closely on the American constitutional system as a whole. They also do not see any other model as hegemonic, however; and they are skeptical about the impact of modern populist movements on eroding constitutionalism as a whole. They perceive great diversity in constitutions around a world that has in many respects left the hard-to-amend U.S. Constitution far behind.

Not long after Law and Versteeg first wrote, various writers responded, many arguing that these contentions missed the forest for the trees. Perhaps most prominent was law professor Akhil Amar. He maintained that the U.S. Constitution can be seen as nothing less than the "hinge of world history," because before it, there simply were no large-scale national democratic systems, much less ones with written constitutions—and today, despite all the variations in particulars Law and Versteeg identify, these basic features of government are very much global norms (Amar 2012b). Amar has also long insisted that the model of the U.S. Constitution has over time reshaped the contents of what are now fifty American state constitutions, which collectively govern almost 330 million people—making this model of great contemporary significance, even if many other countries have chosen to depart many from its elements (Amar 2006, 2012a).

There is clearly power in both arguments. Furthermore, discussions of the impact of American constitutionalism should probably not be confined to the 1787 Constitution and the subsequent Bill of Rights. As historian David Armitage has shown, the 1776 Declaration of Independence has had an even more pervasive global influence, fostering the core concepts that governments exist by the consent of the governed and are created in order to secure basic rights (Armitage 2007).

The other two chapters in Part I offer arguments that are pertinent to the question of whether the American state constitutions demonstrate the power of the example of the U.S. national constitution, while the essays in Part II present analyses that can help us consider its influence abroad, among other major issues. In Chapter 2, the often iconoclastic constitutional scholar Sanford Levinson weighs in on what might at first be seen as the Law and Versteeg side of this debate. Levinson calls into question, as he has done in range of works, whether the U.S. Constitution really deserves to be seen as a large-scale democracy that exemplifies governance by the consent of the governed (Levinson 2006, 2012). In the manner of Amar, however, Levinson stresses that the more amendable American state constitutions take commitments to democratic self-governance further than the original U.S. Constitution did. He urges greater attention to, and reliance on, these American constitutions.

In Chapter 3, political scientist Emily Zackin shows that state constitutions in America also have more in common with recent transformative constitutions than the U.S. national constitution has ever had. Over time, many state constitutions have included some "positive" rights for education, labor, environmental protection, and more. She contends that scholars should regard these state provisions as features of American constitutionalism, along with those found in the harder-to-change U.S. Constitution. Doing so diminishes to some degree the contrasts between American constitutionalism and patterns of constitutional contents elsewhere in the world. Zackin's work suggests that American constitutionalism, taken as a whole and analyzed in its historical evolution, shows more continuities with recent constitutions in other countries than many analysts have recognized. These continuities include both the establishment over time of a broader range of constitutional rights and the emphasis on courts upholding the rule of law to limit governments that many of those concerned about populist excesses wish to reassert.

Global Patterns and Problems

The chapters in Part II display these continuities in modern constitutionalism in different parts of the world, as well as significant variations. They make it clear that the commitments to government by consent and explicitly republican self-governance found in the American Declaration of Independence and the original Constitution, as well as the concerns to insure that governments honor basic rights that are central to both, have indeed become pervasive features of the rhetoric and often the practice of constitutionalism everywhere in the ensuing centuries. Nonetheless, different countries have adopted very different answers to the questions of who can write a constitution, who can authorize it, whether it should be easily alterable, whether it can and should be strictly "written," as well as what sorts of basic institutions and purposes it should have.

In Part II's opening chapter, law professor Christopher McCrudden discerns a growing trend around the world to understand constitutions as designed to secure human rights that express fundamental values of human dignity. In keeping with David Armitage's argument about the influence of the American Declaration of Independence, this feature of modern global constitutionalism can reasonably be seen as in part a descendant of the insistence in the Declaration's preamble that governments must secure natural rights of all persons. The widespread emphasis on human dignity has, however, multiple sources. They include Catholic traditions that were probably far from the deist Thomas Jefferson's mind, along with more secular calls for recognizing intrinsic human dignity that proliferated as the world grasped the horrors of the Nazi Holocaust. In the modern era, proponents of many religious traditions and moral philosophies have reinforced those calls. In this still-burgeoning global landscape of avowed and institutionalized commitments to human dignity and human rights, we may perhaps see sources of constructive convergence in world politics.

McCrudden is careful to point out, however, that the rhetoric of human dignity is far more widely shared than understandings of just what tasks and limits are set for governments by dignity norms. They can be used to argue for rights of democratic self-governance and for a great variety of negative and positive rights, but for that very reason, sometimes they can serve as instruments of radical social transformations, sometimes as conservative bulwarks against reconstructive schemes. What seems beyond question is that the heightened focus on human dignity represents a developing pattern in global constitutionalism that merits close and continuing attention.

In Chapter 5, Tom Ginsburg contributes a counterpart argument. He, too, documents how some features of constitutionalism are being very widely adopted in the twenty-first century. In contrast to most versions of human dignity values, however, these features are ones that do only a little to diminish the fundamental differences between authoritarian and democratic regimes. Using an array of examples, Ginsburg shows that not only many regimes typically deemed democratic but also many regimes frequently classified as authoritarian display commitments to significant forms of the rule of law, stable institutional structures, and accountability for unconstitutional conduct by lower officials. To be sure, all such classifications of regimes are subject to reasonable disputes. But as Ginsburg explains, even undeniably authoritarian regimes can have strong incentives to attract foreign investors, limit domestic discontent, and make the consequences of their own governing decisions more predictable by establishing courts and other governing mechanisms that can, on a wide range of issues, insure that the regime earns a reputation for keeping its promises to all concerned. Those are some of the reasons why even authoritarian populist regimes can embrace many features of constitutionalism, as Müller and others argue.

Yet important as those judicial and administrative institutions and practices are, they do not mean that the promises advanced by an authoritarian regime, even a self-proclaimed populist authoritarian regime, will be the ones its people would choose if they could do so freely. Nor do they guarantee that authoritarian governors will comply with constitutional limitations when it threatens their power and purposes to do so. Important features of modern constitutionalism can therefore be adopted, and are being adopted, without any embrace of what proponents of liberal constitutionalism have long seen as the soul of the enterprise: constitutional democracy and a rule of law that applies to all.

Through a vigorous analysis that continues her extraordinary scholarly and political engagement with post-Soviet Hungary, legal sociologist Kim Scheppele provides a grimly compelling reminder that both the "constitutional" and the "democracy" do matter if morally acceptable legal rule is to be achieved. Just as there can be constitutionalism without democracy—indeed, there can be authoritarian constitutionalism that is hostile to democracy—there can also be populist democracy without any genuine commitment to constitutionalism. In opposition to proponents of unbridled legal positivism, Scheppele argues that even though Hungary's currently ruling Fidesz Party came to power in 2010 with a two-thirds parliamentary majority, and hence substantial claims to democratic authority, it has since enacted a set of policies and constitutional amendments that have moved Hungary sharply toward a totalitarian system that does not merit the designation "constitutional." Even as American scholars like Levinson question whether the U.S. Constitution is adequately democratic, Scheppele, a leading voice among modern critics of authoritarian populism, revives the case for rejecting democracy alone as the ultimate standard of governing legitimacy—especially when it is used against democratic institutions by shutting down the opportunities for political participation and political change of the ruling party's opponents. Her analysis shows why many are now suggesting, against voices like Levinson's, that at least some of the undemocratic features of the U.S. Constitution, and of constitutionalism more generally, may well be elements that deserve to be globally influential insofar as they work to preserve rather than to obstruct the realization of basic democratic and human rights.

Although the rise of authoritarian forms of populism appears to be the chief alternative to liberal democratic constitutionalism today, it remains true that much of the world still displays legacies of the preceding major alternative, Communism. The Soviet-style system that preceded the current Hungarian regime and many others is commonly seen today as one that was constitutional and democratic only in form, never in content or practice. But moving beyond those familiar critiques, comparative politics scholar Valerie Bunce highlights a central and yet less discussed feature of Soviet constitutionalism: its explicit recognition of different nationalities and ethnocultural groups as distinctive members of the Soviet Socialist Republic, a recognition echoed, Bunce shows, in various other Soviet-era Communist constitutions. From many political points of view in many parts of the world, these features of Soviet constitutionalism might be regarded as desirable parts of a "politics of recognition" that respects valued social identities, even as it seeks to join them in common political and economic institutions that can benefit all. Recognition of group identities, particularly for long-discriminated-against and disadvantaged communities, forms a feature of many modern "transformative" constitutions, beginning with India's influential example and including many modern Latin American and African constitutions.

Yet Bunce demonstrates that not only is it true that, in the Soviet era, these recognitions fell far short of providing truly equal status to all nations and groups. They have since that time often become lines of fracture and antagonism that have worked against the achievement of healthy and stable political communities in the wake of Communism's dramatic decline. Her arguments reinforce a long and distinguished line of comparative politics scholarship that warns against undue accommodation of the aspirations of ethnic and national minorities and in favor of an emphasis on more universalistic forms of citizenship within constitutional democracies—civic forms that this scholarship attributes to American constitutionalism at its best, with reservations about apparent departures such as race-conscious aid policies (e.g., Horwitz 1985). In this regard, too, the U.S. Constitution, as amended after the Civil War, is gaining renewed credibility as a model of civic universalism, though at some risk of minimizing the history of ongoing racial and ethnic discrimination that the nation has displayed.

Vividly aware of how "universalism" has often meant compulsory conformity in many nations, comparative politics and legal scholar Jaime Lluch provides a different perspective. Lluch contends that experiences in North America and Europe offer evidence that constitutional democracies are often better off providing a significant measure of accommodation and recognition to those within their bounds who see themselves as minority nationalities. If these sorts of minorities, like the Catalonians in Spain and the Francophone residents of Quebec in Canada, are not given a significant measure of regional and cultural autonomy, Lluch suggests, the results over time are far less likely to display voluntary assimilation to a shared national identity than a more militant separatism, of the sort that Catalonians in particular are now displaying. That outcome is far from inevitable. A range of economic considerations, strategic judgments, and successes or failures in political mobilization can all contribute to determinations of whether strong separatist movements will emerge. But Lluch's analysis makes a forceful case that in many circumstances constitutional democracies are likely to be more stable and successful if they give a measure of acceptance to the claims for distinctive legal and political statuses of national minorities. This argument counters in some ways the lessons that many draw from post-Communist societies, and so it also casts doubts on whether the U.S. Constitution is a good model in this regard. As a native and current resident of Puerto Rico, another national minority community that has long struggled for appropriate recognition and autonomous authority and is in crisis today, Lluch is well positioned to judge the pertinent limitations of the U.S. model.

Law professor Heinz Klug's analysis of postapartheid South Africa provides another native's-eye view of modern constitution-making. His arguments blend elements of all the foregoing analyses. Persuaded in part by international boycotts, some leading adherents of the preceding authoritarian and racist South African regime came to accept the notion that some transition to a more genuinely constitutional, rule-of-law, indeed democratic system was necessary to achieve national security and prosperity. But rather than relying on any directly democratic processes of constitution-making, South Africa's transition was carefully negotiated between representatives of the nation's different racial and ethnocultural groups, among others. It also involved using the South African constitutional court to guarantee that the new constitution would not unduly threaten core economic and security interests of the long-ruling white minority. Subsequently in South African constitutional jurisprudence, values of human dignity have come to be almost universally espoused, fitting with the patterns McCrudden depicts. But in South Africa as elsewhere, human dignity is understood by partisans of different causes to mean very different things, from a focus on individual rights that is hostile to policies of racial reparations to vigorous efforts to promote more sweeping forms of economic, racial, gender, sexual, and cultural equality. Despite these efforts, severe inequalities continue to persist in South Africa today, along with profound political discontents that threaten the future of this still-new constitutional democracy.

Yet Klug finds some basis for cautious optimism that the negotiated, far less than fully democratic, processes of South African constitution-making, including still-contentious forms of recognition for the rights of the white minority and the aspirations of long-excluded coloreds and blacks, may yet be on a longer historic track to greater democracy with a firmer constitutional rule of law. If so, its institutions and norms will almost certainly confirm the Law and Versteeg argument that constitutional democracy in many parts of the world does not closely resemble any of the main particulars of America's seminal Constitution of 1787. But they will provide further confirmation of the contentions of Akhil Amar and others that the world after the American Constitution is one in which aspirations to create and sustain some form of constitutional democracy are far more prevalent than they were before—or, perhaps, might otherwise have been.

The essays collected here cannot claim to encompass the full range of modern constitutions that have emerged in recent decades, much less the whole arc of modern constitutional experience since the late eighteenth century. Although the arguments of these scholars are informed by and reference constitution-making on every inhabited continent, they are weighted toward North American and European examples. Even so, they provide confirmation both that the making of modern constitutions inescapably involves responses to all of the six tasks of constitutional formation that we have identified and that, as Law and Versteeg contend, no uniform responses to any of them are emerging, even among this necessarily restricted sample. Yet the chapters that follow collectively identify some patterns, reviewed in the volume's conclusion, that provide a measure of guidance for the challenges and prospects of modern constitutions in the rapidly changing political world of the twenty-first century.

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