Balkinization: What’s the Rush? Why Revolutionaries Love Speed

What’s the Rush? Why Revolutionaries Love Speed

Guest Blogger

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

Joshua Braver

For many revolutionaries, time is of the essence, and they have no qualms breaking the law if it slows them down. In their book, Constitutional Revolution, Gary Jacobsohn and Yaniv Roznai take almost the exact opposite stance. Through wide-ranging and in-depth case studies, they show that constitutional revolutions often happen incrementally and through perfectly legal means. In the traditional account, illegality and speed are the criteria to identify when a constitutional revolution occurs. Jacobosohn and Roznai argue that this method of identification fetishizes process over substance and misses the monumental change that is right in front of them. To avoid making the same mistake, Jacobsohn and Roznai redefine constitutional revolution as a “paradigm shift in the basic principles or features of the constitutional order.” According to this definition, what matters is the change itself, not how you get there. This illuminating insight serves as a foundation for the book to cut through and dissipate the conceptual confusion that plagues many debates over constituent power and revolution. Along the way, the book will introduce sophisticated readers to new stories and put old ones in a startling and revealing new light.

My main point here is that book does not squarely address and thus speaks past the school of constitutional theory that most fervently supports the traditional definition of revolution that Jacobsohn and Roznai target. For the purpose of this post, I call these thinkers “radicals” because they pursue a new constitution in order to achieve large-scale redistribution of political and economic power. Their belief is that they will only achieve their goals if they act quickly. While Jacobsohn and Roznai deeply enrich our understanding of constitutional revolution, the stories they tell is not persuasive proof that this radical tradition is wrong in its basic analysis.

If not “radicals,” who are Jacobsohn and Roznai arguing against? At many points, they target what they call “the conventional account, conventional opinion, the generic account, one’s intuition.” All of these labels imply that the illegal and sudden definition or revolution is a result of simple overlooking, of not paying close attention to the facts on the ground. Therefore, once the authors show us counter-examples readers realize that their previous prejudices were a mistake. Their other consistent targe is Bruce Ackerman and his term “constitutional moments” which they suggest means that revolutions in singular moments, in “moments of lightning and fire.” But Ackerman’s term “moments” is misleading as in his work on the U.S., Ackerman theorizes revolutions as a five-step process that unfolds over many years—almost three years at the Founding, eight years for Reconstruction, and seven years for the New Deal. Ackerman’s more recent comparative work sometimes homes in on missed moments that were necessary for revolution, such as in Poland, but this lost opportunity is not “the moment” but rather a crossroads that is part of a much longer story.

The right target is neither Ackerman nor conventional opinion, but a long “radical” tradition in political theory stretching from Thomas Hobbes in the 17^th century through Emmanuel Sieyes during the French revolution, Mensheviks in the early 20^th century, and Antonio Negri today. In legal academia today, the most often cited theorist of this radical line of thought is Carl Schmitt who, imagined the people suddenly “shouting” into being the overthrow of liberalism.

The differences among these thinkers is great indeed, but for our purposes we can simplify a bit. Radicals believe that there is only a short window of opportunity to achieve deep structural change. Structural conditions have to align in just the right way. Among them is that the people must be aroused to action, an infrequent occurrence as normal citizens rarely have the time or energy to focus for politics. Too often, theorists influenced by the deliberative democracy literature, dismiss out of hand these singular moments as temporary bursts of irrational exuberance whose fading over time signifies the fickleness of the average citizen. But from the perspective of the radical these rare junctures are when the people finally have the momentum, backing, and courage to reveal their true beliefs. Law’s insistence on following proper procedures, on filling out the paperwork just right, slows down action. And the pre-existing institutions which law empowers are dominated by those invested in preserving the very order revolutionaries seek to overthrow. To move quickly, a true revolution must often violate the law.

For many, though not all, in the radical school, the constitutional assembly or some singular entity should seize the moment and momentum to overcome powerful enemies to reorder society. Think here of French revolution, specifically the moment in which the Constituent Assembly passed the Decree of the Clergy to confiscate church land and redistribute it to peasants. Or radicals recall the famous night of August 4^th when the French Constituent Assembly passed a decree to “abolish the feudal system entirely.” The U.S. has few thinkers or political events that partake of this radical tradition. Perhaps the political actor in American history most sympathetic to this style of thinking was Thadeus Stevens. As Gregory P. Downs has documented, in the Military Reconstruction Bill, Stevens wanted to keep the South in a legal void, seize property under the 1862 confiscation act and apportion forty acres and $50 to each ex-slave head of household. A key framer of the 14^th Amendment, John Bingham, thinking of himself as trying to save the rule of law and constitutionalism led the opposition and defeated Stevens’ plan.

Hence, the differences between radicals on the one hand and Jacobson and Roznai on the other are not only about process, but substance as well. For radicals, speed and illegality are often secondary means to a substantive end; these process criteria are at root empirical assertions about tactics, about what is necessary to defeat the old regime. Radicals, to some extent, agree with Jacobsohn and Roznai that substance should trump process. The more fundamental disagreement between these two camps is over what substance is worthy of praise. Much of what Jacobsohn and Roznai consider a revolution, these radicals would consider to be meek reforms.

Take for example the authors’ highlighting of the Indian Supreme Court’s ruling as constitutional affirmative action in admissions policy as having “an explicitly revolutionary purpose” of tearing down the caste system. But could this policy ever really turn upside the political and economic order? Jacobsohn and Roznai’s analysis of the Court’s revolutionary doctrine is impressive, but what about the design and effects of the actual policy itself? The authors may believe that the question is beside the point because the decision’s “principal value for us resides as much in its rich theoretical content as in whatever may ultimately be its significance for reservations policy.” But revolutions in constitutional doctrine have profound social affects. They will arrest, consolidate, or spur social change. And it would be fascinating to know more about actual effects of the Court’s revolutionary doctrine.

I focus on India because of Jacobsohn and Roznai’s examples, India comes closest to the kind of revolution radicals seek. Indeed, members of the Indian Constituent Assembly believed they were enacting a “social revolution,” defined by a “commitment to reshape key structures of the existing social order.” Jacobsohn and Roznai agree, but they add that India is a “step by step” revolution that shows how when “what is developed in detail through evolution culminates in radical change, we might call it a revolution.”

But at least some aspects of the Indian example seem to indicate the opposite, that in India speed and questionable legality were key to achieving social change. Here, I draw from Granville Austin’s class book, Working a Democratic Constitution. Immediately as the Indian Constitution goes into effect, provinces enact sweeping acts of land redistribution of the large rural estates held whose owners were called Zamindars. Members of the constitutional assembly foresaw and supported these laws, so they had inserted into the Constitution a clause stripping courts of jurisdiction over any pending eminent domain cases so that such laws “shall not be called in question in any court.” Nehru, a dominant member of the Assembly and the future first Prime Minister of India stated that on the issue of the Zamindars, “the judiciary should not and does not come in.”

Nehru was wrong. The courts ignored the clause and struck down the legislation. For Jacobsohn and Roznai, Nehru, is their statesmen/philosopher of slow revolution, but here he is impatient. Nehru states, “Perhaps the courts were right and in a generation things might stabilize, he continued. But we cannot wait, and if we do so, we may wait amidst upheavals. This is not just the justice of today but the justice of yesterday.” Like radicals, Nehru believes that the time is ripe for action and that another chance may not come again. With Nehru’s support, the First Amendment to the Constitution retroactively denied the judiciary jurisdiction over the pending lawsuits, and it gave future parliamentary majorities the authority to remove these lawsuits from judicial review. The story of redistribution does not end there and there are further conflicts with the Court. But even this snippet suggests that insofar as land redistribution was achieved, it was because the politicians acted quickly and on questionable legal grounds. Insofar as the goal was stymied it was because courts slowed down the process. How much farther might the Indian social revolution have gone if Nehru had not had to spend precious time and political capital fighting the courts?

My analysis of radical revolutions is related to my broader concern about the dangers of grouping together too much under the category of “constitutional revolution.” Radical revolutions, such as the French or Russian ones, present their own unique dilemmas and dangers that must often be analyzed separately from other forms of constitutional replacements. But Jacobsohn and Roznai want to subsume such radical revolutions into a much a larger umbrella group. Indeed, their new definition of constitutional revolution includes a. “New constitutional arrangements sanctioned by the authority of the previous constitutional order (as in Hungary, South Africa, Chile); b. New constitutional arrangements imposed by an external power (for example, Japan, Iraq); c. major constitutional departures legislatively enacted (such as Canada Great Britain); d. major constitutional departures secured through the use of the amendment power (the United States, Norway, for instance); and e. major constitutional departures engineered through the interpretative power and reach of a court of law (as in Israel, United States, Colombia, South Africa).” My worry is that putting together these vastly different situations may obscure as much as it clarifies.

But the book does clarify a great deal. By redefining revolution, the authors provide a new lens to compare a vast array of cases. In that way, the book acts as a platform to start a dialogue across different countries about common sets of issues such as constituent power, legitimacy, and populism. The reader and the field will benefit greatly from the books’ breadth, ambition and new insight into the meaning and substance of a constitutional revolution.

Joshua Braver is an Assistant Professor at the University of Wisconsin-Madison Law School. You can reach him by email at joshua.braver@wisc.edu.

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