Tuesday, January 19, 2021

Conceptualizing Constitutional Revolution

Guest Blogger

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

Gary J. Jacobsohn & Yaniv Roznai                                                       

We are greatly appreciative of the thoughtful responses to our book.  We wrote in its opening pages that we wanted to invite theoretical and comparative reflection on a concept for which no canonical meaning exists.  Thus, despite its pervasive usage in political and scholarly discourse, the application of the concept of constitutional revolution to phenomena of disparate circumstance pointed to a need for illumination of its essential attributes.  In addressing this need we endeavored to construct a clarifying lens for comprehending the type of change that results in significant departures in constitutional practice and identity.  We offered an interpretation of the constitutional revolution that challenges some of the major assumptions engrained in its frequent invocation.  This task required that we distinguish the characteristics of a constitutional revolution from the features commonly associated with the revolutions that come more readily to mind when we think of this phenomenon’s generic exemplar. 

Vital to our thinking about all of this was the extraordinary wave of constitutional transformation that hit so many polities in the last half century.  Some of this transformation occurred as the result of a rupture in legal continuity leading to the installation of new regimes, often accompanied by the sort of change we associate with revolutionary upheaval.  But what attracted our attention were the many cases – a short list would transformations in such places as South Africa, Eastern Europe, Great Britain, India, Turkey, Canada, and Israel -- where a paradigmatic shift was accomplished within the existing parameters of the constitutional system.  This led us to think that limiting the meaning of such revolutions to the specific occasion of a constitution-producing political revolution conceals from view the richer possibilities that inhere in a more capacious rendering of the concept.


But is it too capacious?  Several of the reviewers seem to think so.  Stephen Gardbaum worries that a too liberal usage could lead to a “watering down” of the concept.  He wonders what would be lost “if we decided to drop the noun in constitutional revolution and just talked of major or radical constitutional change.”  Emily Zackin writes that given the “varied paths to large-scale constitutional transformation…why not simply jettison the concept of revolution entirely.”  Gordon Silverstein suggests sticking with the more traditional version of revolution but “add[ing] to it a set of other species of major constitutional change.”

We understand the concern here but think there are good reasons for retaining the broader conceptualization of constitutional revolution.  Abandoning the term’s usage is of course beyond our powers; indeed, its ubiquitous application in manifestly different ways provoked us to seek greater conceptual clarity.  Our effort throughout was attentive to the alternative ways revolutionary constitutional change could express itself, and so we began by distinguishing such transformations in accordance with the manner by which the relevant change occurred and the magnitude of the resulting substantive revisions.  This produced three major types – nominal, classic, and quiet – of which only the second and third can be said to lay claim to the semantic designation revolutionary.  Thus the first, in which a dramatic rupture in political continuity produces minimal change in the societal and constitutional experience of a polity (e.g., Egypt) is at best a constitutional revolution in name only.  Our book’s focus is on the third type, in which a polity undergoes a substantial displacement in the way constitutionalism is experienced absent the standard revolutionary (and typically illegal) political moment that is present in the classic variant that may also culminate in such a displacement.

Far from watering down the concept’s meaning, our embrace of the term to portray what occurs when fundamental change happens within the parameters of an extant constitutional setting shifts attention from category-defining questions of process to ones of substance, thus providing greater focus on what really matters than is accessible through a narrower analytical lens.  As to how much change is sufficiently fundamental to satisfy a revolutionary criterion is a question for which we invite the reader to ponder and evaluate.  What the historian Crane Brinton observed about the generic concept applies as well to its constitutional variant. “[T]he social scientist cannot measure change by [an] exact thermometer, and say exactly when ordinary change boils over into revolutionary change.”  So, for example, Leslie Goldstein’s belief that the post-Civil War amendments “decidedly amounted to a revolutionary transformation” is arguably more palpably evident than her assignment of a similar designation to the gains for women’s rights wrought by the Supreme Court in the 1970s.  While we leave such determinations for the reader to decide, we remain insistent that much is lost in adopting a Kelsenian emphasis on a break in the legal chain of legality as the decisive marker for determining whether a constitutional revolution has occurred. 

This insistence, then, extends well beyond the goal of winning what Silverstein refers to as “the current terminological debate.”  Retaining a focus on revolutionary change allows us to avoid obscuring the radical nature of constitutional change that could otherwise result from a preoccupation with the evolutionary manner that often accompanies its attainment.  If, following Gardbaum, we had adopted as our object of interest the nomenclature of radical constitutional change rather than revolution we would have risked missing, or at least fully appreciating, the identity transforming possibilities embedded in incremental changes that by conventional accounts are recognizable only for their evolutionary attributes.

In this regard, Zackin asks, what is gained by drawing a line along the evolutionary continuum and “calling everything to one side of it ‘a revolution.’” She suggests that “evolution [is] a good description for the developmental process [we] describe – a process of change with continuity.” Zackin provides the example of how land mammals evolved from fish without rupture. Allow us to continue this analogue of evolutionary processes of species. In biological terms, a specific ‘“breed’” or ‘“race’” of an animal is defined by its capacity to inter-breed. But as evolutionary modifications take one group further away from another a point is reached where they can no longer inter-breed. At this point a new species has been formed. Paleontologists Stephen Jay Gould and Niles Eldredge have demonstrated how a gradual accumulation of small changes at a certain point provokes a qualitative change. What is at work here, is the law of the transformation of quantity into quality - incremental quantitative changes may bring about qualitative changes of degree and of state. Just as it applies in biology, chemistry or physics, it applies in legal or political science. The incremental aggregation of constitutional changes may lead to a constitutional revolutionary change."

Again, the line drawing must be left for others to debate and establish, but the occasion should not be diminished as an academic exercise; rather, its significance must be assessed in the context of the challenges that confront constitutional polities.  In our case studies we consider several such instances; for example, German constitutional identity is infused with revolutionary meaning, and the country’s history provides ample justification for viewing identity as the keystone of the jurisprudential project.  The Constitutional Court has assumed the role of defender of this identity, which means that it must be attentive to the potentially transformative implications of enhanced deference to the decision-making authority of European institutions.  When does a Union policy threaten the constitutional identity of the polity, which is to say, at what point along the continuum should the Court decide to initiate a counter-revolutionary response?  In this connection, surely it is no coincidence that the doctrine of the unconstitutional constitutional amendment originated in Germany.

Or take India.  We argue that if evolutionary development culminates in radical change, we might call it a revolution.  In his remarks, Joshua Braver remains unpersuaded, seeing our effort as not capturing the less evolutionary meaning of what radicals seek in their struggle for revolutionary transformation.  And so what we would possibly deem a revolution, “these radicals would consider to be meek reforms.”  Braver argues that India, whose constitutional framers were committed to the goal of achieving a social revolution, supports his claim that real “revolutionaries love speed.”  But in using the example of the “radical” Nehru, he cannot demonstrate what he purports to show, since that constitutional revolutionary was consistently clear that what has been called “the long democratic revolution” would require a protracted “step by step” progression toward validation of the Constitution’s identity.  To be sure, he was, as Braver says, understandably “impatient,” but unlike the dictatorial Indira Gandhi, who like her father was committed to the social revolution, he did not insist that his radical goals be accomplished in “a short window of opportunity.”   

A similar interpretive error is present in Silverstein’s discussion of the American Declaration of Independence.  He emphasizes the document’s list of grievances as suggestive of the conservative orientation of the revolutionary change it advocates.  In contrast with the French experience it hardly looks radical at all, having produced “more Madison’s than Paines.”  Additionally, he understands the later Declaration-invoking appeals of Martin Luther King, Jr. and Barbara Jordan as “not a clarion call for revolution” but an expression of “no more than classic, conservative values.”  But rightly understood, King’s allusion to the “promissory note” that “America has defaulted on” was true to the concept of constitutional revolution that inspired the writing of our book.  As Lincoln famously said, “The assertion that ‘all men are created equal’ was of no practical use in effecting our separation from great Britain; and it was placed in the Declaration, not for that, but for future use.”  The future use to which these words would be put was clearly a reference to the efforts succeeding generations would be morally bound to undertake in order to fulfill the promise of the constitutional experiment that had been made possible by violent revolution. Understood in this way, a revolutionary constitutional departure could be conceptualized in a way that did not require for its authentication a blatantly illegal break with a prior regime.  It could simply portend the eventual attainment of a substantially different political or social reality made possible by the displacement of one constitutional orientation by another.  Thus, the substance of constitutionally inspired radical change may require an extended period of time for its revolutionary meaning to be realized and certified.  If, then, as Silverstein recommends, we were to “stick to the more traditional ‘tree-snap’ version of revolution,” we would risk missing those constitutional transformations that are no less revolutionary for the incremental aspect that marks their arrival.

Also no less revolutionary are those constitutional departures that culminate in the entrenchment of decidedly illiberal and authoritarian norms and practices.  As we show with the example of Hungary, in which the liberal 1989 transformation “under the rule of law” sadly mutated through the extant amendment process and the preservation of legal continuity into an “illiberal democracy,” constitutional revolutions can take very different paths, not all of which terminate in a better place.  That something similar occurred in Singapore, and, as Silverstein points out, “at the behest of the ruling party,” does not, as he suggests it does, alter the fact that the changes wrought could be construed as revolutionary.  In this we share Goldstein’s “sobering realization that a constitutional revolution is not always a set of measures to guard against governmental abuse of power; it can also put in place a set of measures to strengthen authoritarian domination of the population….” To borrow a phrase from her concluding remarks, constitutional revolutions do not always provide a “moral rope” that pulls society closer to justice. Sometimes they do and sometimes they don’t. But we regard this normative neutrality as a virtue – not a weakness – of our conceptual account.

This brings us to the challenge of legitimacy raised by Gardbaum. “[I]f process is […] key to an enduring, politically entrenched constitutional paradigm shift”, this is in tension with the claim that the process is “not key to the concept of constitutional revolution”, notwithstanding the analytical distinction between the two. He then wonders if it is not precisely the “questionable legitimacy” of how, for example, Israel’s constitutional revolution was judicially brought about that makes it revolutionary in the first place, asking “would we still talk of a constitutional revolution if there had been a formal constitutional amendment…?” Well, the answer to that is yes, of course. Actually, it was a formal constitutional law that elevated basic rights to a constitutional level in Israel, yet it needed the court for its recognition and enforcement. And, indeed, a formal amendment can be revolutionary, as occurred in Hungary or Chile. In that respect, our take on legitimacy may be of use for future constitutional designers who wish to create formal mechanisms of constitutional change that would allow total replacement of constitutions. Although this can be achieved without broad public participation or debate, it seems to us that more inclusive, popular and deliberative processes enhance the democratic legitimacy of the change, thereby weakening possible counter-revolutionary forces inherent in any such transformation. Yet while there ought to be some kind of correlation, the mechanism itself is not a criterion for the extent of the change. One may achieve a successful constitutional revolution without summoning the people’s active participation, and contrariwise, a constitutional change involving the people may not be revolutionary at all.

In the end it is true, as Silverstein notes, that “we need more than revolutionary or not-revolutionary to define the range of our taxonomy”. Still, we hope that our conceptualization will become a helpful step towards a better grasp of the elusive phenomenon of constitutional change. We are more than grateful to Professors Schweber, Goldstein, Gardbaum, Zackin, Silverstein, and Braver for taking the time and effort to participate in this journey.

Gary Jacobsohn is the H. Malcolm Macdonald Professor of Constitutional and Comparative Law in the Department of Government and Professor of Law at the University of Texas at Austin. Yaniv Roznai is an Associate Professor at the Harry Radzyner Law School, Interdisciplinary Center (IDC) Herzliya.

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