Political community and constitution-making

Hanna Lerner

Instead of getting into question of whether “the people” is prior to constitutions, here to distinguish thin and thick constitutions:

  • thin: constitutions expected to limit government power by distributing powers between branches, providing basis for protecting fundamental rights > these usually considered “true” constitutions
  • thick: expected to set out common vision of polity, providing sense of ownership etc. as state’s charter of identity: symbolic and foundational, often including flag, anthem etc. > this is what proponents of thin constitutions object to, arguing for example that undermines ability to limit government power
    • e.g. Ireland: essential elements of Irish national identity and religion

> in fact most existing constitutions have both elements

We have defined polit commni in terms of relationship between members and institutions, but not in terms of identity > when plays role in definition of political community? what type of identity conflicts break…?

> she asks whether it is possible to draft constitutions in a way that unites different communities with competing vision of state as a whole? this is case when groups have different national or religious visions for entire state, making it difficult for antagonists to split difference

e.g. Israel: conflict between orthodox and secular Jews over relationship of religion and state

> sometimes leads to failure: 1946-7 in India before Partition or 2004-5 in Iraq… thin constitution often proposed as solution: but she criticizes

  • thin constitution can still seem like changing rules in middle of game
  • supposed to be about refraining from ideological issues, but itself represents a liberal democratic worldview
    • leads to excluding “illiberal” elements such as religious identifications
    • liberal constitutionalists draw inspiration from Canada, etc. where do function as more or less neutral, but this is not case in Egypt, Tunisia, Israel etc. where no consensus and a thin constitution is already viewed as “taking sides”

> if neither thick nor thin possible, she argues that constitution drafters can still find range of ways to overcome the impasse, through incrementalist strategies

  • including ambiguous arrangements e.g. India, Indonesia
  • contradictory provisions e.g. Ireland
  • avoiding altogether e.g. Israel

Tamas Gyorfi

How constitutional theory and especially Schmitt conceptualises political community

Schmitt: “the people” can be above, within and compared with (next to) the constitution

1. Above the constitution

> Schmitt distinguishes between the constitutive power of people and constituted powers of legislative, executive and judiciary

+ also distinguishes between modifying – imposing limits on existing structures – and foundational constitutions which claim to create whole political structure from scratch

In 19th century, constitutions were imposed typically by monarchs or conquerors > more as “you the people”

  • here political community is created by unity of representer (Hobbes) and not of represented
  • Levellers invent term “constituent power” but conflated it with parliament, assuming that parliament had supremacy > no conceptual space for constituent power of “people” beyond parliament

+ 1688 constitution left open whether constituent power belongs to king or to people > state of irresolution, of kind that Hanna Lerner describes

Relation between constitution-making power and constitution itself is obscure

  • Schmitt – prior to any norm, there is fundamental political decision by bearer of constitution-making power > S. distinguishes constitution – political form which was the product of constitution-making power – and constitutional law, by which that political form is subject to judicial arbitration
  • similarly, Derrida: the signature invents the signer >  “we” of Declaration does not exist, it is an artefact of the power that makes the constitution

2. Within constitution

Three possible variants on “the people” as subject in the Constitution.

1. Possible to have democratic system without referendums: “we are the only legitimate and legal organs of national sovereignty” (Guizot 1842)

2. Populist presidentalism: de Gaulle – need for President who can directly communicate with people as such: “executive, intended to serve no-one but community, must not come from parliament”

3. Parliamentarism with referendums: accommodates direct democracy; President does not have direct access to people

3. Next to constitution

Schmitt – people above constitution does not cease after constitution enacted > “the people” as political concept presupposes some kind of public sphere > in Schmitt’s version, only immediate presence of assembled people is able to constitute the people – this is people next to the constitution

> Schmitt distinguishes voting and acclamation: potential to become political entity capable of acclaiming, e.g. in stadiums of Nazi Germany which CS considers only authentic expression of people

Discussion

Daniel Koltonski: to Hanna, if want to reject liberal constitution as disrespecting illiberal members of group, is point just to avoid violence? or to achieve democracy? what is problem with imposing liberal constitution, even with army?

> Hanna: imposing a liberal constitution would just create violence – avoiding this is indeed the bottom line

Franka Winter: would postponing clear agreement in constitutional matters really be less controversial, given that including all sides in the document will still make people angry that others being included?

> Hanna: Good Friday agreement is example – hard to define success, but seems to do something

Matyas Bodig: how do contradictory provisions not create institutional tensions which undermine state functioning?

> Hanna: contradictions less about institutional arrangements than symbolic, identity etc. provisions

Nigel Dower: is relationship between constitution and political community instrumental rather than essential? if state doesn’t have constitution, not sure that really makes different kind of political community

> Tamas: every state has a constitution even if it isn’t codified

Ionut

  • for Tamas: for Schmitt does political consciousness mean identity, and does “acting” include against minorities?

> CS political consciousness is national identity; not clear about how act together > usually in terms of whether can say yes or no to President

  • for Hanna: are there non-Western alternatives of constitution where liberal values not shared, e.g. sharia? is idea of constitution not itself a Western one?

> history of constitutions in 19th century Turkey, Iran etc. so not clear that Western, especially if define broadly as some kind of constraint on political power; constitutionalism may be Western, though

Silvia Pasquetti

  • can we see with incremental strategy that states become more inclusive over time? or turns out to be the same people over time?
  • deliberative practices are not just Western or among liberals e.g. book on deliberation between liberals and non-liberals in Yemen

Silvia Suteu

  • need popular authorship for constitutions to have legitimacy?

> Hanna: not much evidence yet on whether actually leads to greater legitimacy

Anna Grudzinska

  • in Poland constitution-making worked only for couple of years and then started creating problems > not good way of alleviating conflicts

> Hanna: India is good example of liberal constitution that amazing document (but Ajay Gudavarthy: it does nothing)

Gal Levy

  • Israel is good example of how even when issues are narrowed down to the basics, it still doesn’t create stability
  • wonders if purpose of constitution is to create stability or to allow participation > agrees with Silvia that generally winners who able to impose themselves

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