Jacobsohn and Roznai's Constitutional Revolutions

Guest Blogger

For the symposium on Gary Jeffrey Jacobsohn and Yaniv Roznai, Constitutional Revolution (Yale University Press, 2020).

Howard Schweber

Jacobsohn and Roznai’s book Constitutional Revolutions has quickly attracted a great deal of attention and provoked a great deal of thoughtful reaction, as illustrated in this blog symposium’s essays. J and R’s basic argument is that in defining a constitutional “revolution” we should not look to the process—a sudden fissiparous event outside established legal channels—but rather the consequences. If there is a change in constitutional understanding that results in “a paradigmatic displacement …in the conceptual prism through which constitutionalism is experienced in a given polity” then there has been a “revolution” regardless of whether it happened quickly or over an extended time period—by a process sanctioned by the former constitutional order, formal amendment, imposition by an external power, major legislative enactments, or judicial decision—and regardless of who were the actors involved.

There are a number of things to say about this formulation, as these commentators observe. For one thing, as Emily Zackin points out, “paradigmatic shift” recalls Thomas Kuhn’s deployment of the same terminology in his historiography of scientific change. Zackin might further have noted that Kuhn got the term and its associated from E.H. Gombrich’s writings on the history of art, and that among historians of science—including Kuhn himself in his later writing--the paradigm model in its simple form is not given substantial credence. Indeed, one of the major divisions in the historiography of scientific development is between Gallisonians (inspired by Peter Gallison) and Kuhnians; Gallisonians argue that scientific development follows and is guided by changes in the available technologies of investigation, while Kuhnians insist on the autonomy of systems of ideas. Legal historians and philosophers will recognize considerable overlap with debates over the autonomy of legal reasoning.[1] So by the very deployment of the term “paradigm” the authors raise and beg a profound question: to what degree are constitutional revolutions autonomous events rather than epiphenomenal consequences of structural or cultural change? The question is at the heart of several of these contributions. 

Leslie Goldstein points to the difficulty of identifying shifts in the dominant “conceptual prism” of a particular historical events. Considering the American Declaration of Independence, Articles of Confederation, and ratification of the Constitution she asks whether we should consider these events as elements of a single constitutional revolution, as the authors do, or as three separate events each of which implies a change in basic features of the constitutional order? Among botanists it was once traditional to distinguish among “lumpers” and “splitters” depending on whether the discovery of a new specimen was treated as a reason to announce a new typological category or as a variation on an existing category. The distinction is fundamental to determining the parameters of constitutional identity; as Joshua Braver points out, to writers in the radical tradition some of the constitutional revolutions discussed in the book appear as “meek reforms”. The theme song of the English Civil War was “The World Turned Upside Down”; is anything less a “revolution”? That question is raised by several commentators in addition to Goldstein; if the process that produces change extends across decades or even generations then what is the difference between a revolution and evolution (Zackin)?; do constitutional revolutions that stand alone need to be distinguished from the creation of new constitutional systems as elements of larger political revolutions (Gardbaum)?;  does the term “revolution” needs additional descriptors and sub-categories to be useful for purposes of typology (Silverstein)? 

These interventions all ask about both the sharp separation between processes and consequences and, at the same time, raise the question about consequences over time. Is it important to distinguish a revolution and a successful revolution? If we extend the temporal concept of a revolution to include an extended process, do we need to also include the subsequent possibility of counter-revolution? One reason for thinking in structural terms (Braver) and questions of legitimacy (Gardbaum) is the way the term “revolution” can be understood to include the possibility of historical cycles. “Revolution” is the noun form of the verb “revolve”, a etymological connection that is not at all coincidental. Classical republican writers from Polybius to Machiavelli worried about the Wheel of History whose revolutions would bring down repubics as it had once brought them into being. To stop the wheel—to arrest the process of revolution—was the task of political theory, leading among other thing to ideas of mixed governments.) In The Politics Aristotle writes that the identity of a state is its constitution. Like the planks in Theseus’ ship, they can be replaced one by one until all are new but if the form of the ship (and in Aristotelean terms’ its ultimate as well as formal ends) remain the same then it is the same ship. Conversely, use the same planks to make a differently configured ship and you have made something new. Aristotle, in other words, would have had no trouble understanding the connections draw between constitution revolution and a change in constitutional identity. But as Stephen Gardbaum asks, what distinguishes a genuine change in identity from the temporary imposition of a jurisprudential regime? 

That answer to that question depends on a deployment of the idea of constituent power. Conceptions of constituent power and identity are leitmotifs throughout the book, as they are in the authors’ earlier writings. Constitutional revolution, to be legitimate, requires an exercise of constituent power just as much as the creation of a new constitution. (N. Srinivasan’s classic 1940 essay “The Theory of the Constituent Assembly,” locating the roots of the idea in 17^th century England and 18^th century America would have provided a nice illustration in the discussion of India’s constitution-making process.) One of the many provocative questions that the book raises concerns the location of that power once criteria of process are removed from consideration. The possibility of conceiving of revolutionary change in cyclical terms only sharpens the problem. If a constitutional revolution is an expression of consistent power, is the same true of a political counterrevolution of the sorts we have seen in Israel and India? The Indian case is particularly troubling, as since his reelection Modi has struck directly at questions of the meaning of the Indian “people” with measures punishing religious conversion, discouraging intermarriage, closing Islamic educational institutions, and preventing Muslim immigration. Modi’s language in defending these measures has been telling: “Respect the Parliament! Respect the Constitution! Respect the people elected by the people!” was his defense of the immigration policy in December 2019.[2] To paraphrase a common maxim, if a constitutional revolution performed by a court is undermined in the next electoral cycle, did it make a sound?

            The essays that follow in this blog symposium point to these and many other questions. None of these inquiries calls into question the excellence of CR; to the contrary, if one of the measures of a scholarly work is the range and quality of the questions that it raises, as it surely is, then Jacobsohn and Roznai have succeeded admirably, and the contributors to this symposium have responded to the challenge posed by a major contribution to the theoretical and comparative study of constitutionalism. 

Howard Schweber is Professor of Political Science and Legal Studies at the University of Wisconsin-Madison