Sunday, January 17, 2021

Constitutional Revolutions and the Judicial Role Therein

Guest Blogger

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

Leslie F. Goldstein

     The book Constitutional Revolution presents itself as a conceptual analysis. It sets forth a variety of other scholars’ analyses of constitutional revolutions, even of revolutions simply, and explains a variety of grounds on which versions of the concept in the work of others are lacking. After some initial critiques of the definitions by others, they settle on a definition of constitutional revolution that is truly a mouthful, and an unwieldy one at that: “a paradigmatic displacement …in the conceptual prism through which constitutionalism is experienced in a given polity” (p.19).  I much prefer the more succinct version that they offer up in Chapter 3 (p.61): “a constitutional revolution….is a change that amounts to a paradigm shift in the basic principles or features of the constitutional order.” So, for instance, the amendment that restricted a U.S. President to two terms in office did not amount to a revolutionary change; only one of all the presidents had ever served more than two terms; the amendment simply entrenched typical practice.

     By contrast, the 13th, 14th, and 15th Amendments to the U.S. Constitution, even if one were to concede that their mode of adoption and ratification satisfied legal forms (which I do not), decidedly amounted to a revolutionary transformation. The 13th (December 1865) deprived the South of its most important source of wealth and primary means of production—slave labor. The 14th (1868) announced that the one third of the Southern population theretofore treated as chattel property were now to be citizens, equal under the law to all other citizens. The 15th (1870) gave the vote to these former chattel, who in a few of the states even amounted to a majority of the population.[1]  The transformation was so radical that the South waged a century of guerrilla warfare against it. Much of the warfare took the form of vigilante violence, and by 1900 the South was cloaking its anticonstitutional behavior in the form of laws neutral on their face but applied with bloodthirsty vengeance to keep Southern blacks thoroughly subjugated (e.g., by uniformly rejecting black applicants to vote using a variety of discriminatory subterfuges, and even by murdering blacks who attempted to register to vote and refraining from punishing the perpetrators). The revolution of the 13th, 14th, and 15th Amendments was not completed until The Civil Rights Acts of 1964 and 1965 assured black Americans of equal treatment in the public sphere, and sent federal enforcers to the South to guard black Americans from being deprived of their right to vote.

   Jacobsohn and Roznai take pains to clarify that a revolution can proceed by way of lawful amendments, not only by violent ruptures, and that revolution more typically than not is an extended process, not a single moment. For instance, they see the series that began with the Declaration of Independence of 1776, and included the Articles of Confederation, and culminated with the document of 1787, as all one extended constitutional revolution.  I prefer to see each of these three as a different constitutional revolution, albeit within a single constitutional era. Until I read and thought about this book, I had not considered the Declaration itself a constitutional revolution, in effect THE constitution of the 13 original former colonies. Indeed, it was their only confederation-wide Constitution until the Articles of Confederation were ratified in 1781. Irrespective of my specific view of these three constitutional formations, the authors stress the point that constitutional revolutions are evolutionary processes, often stretching over decades, and that every constitution always evolves. Certainly, I would grant them that the Civil War constitutional amendments did revolutionize the USA, even though they did take a hundred and one years to do so. Perhaps, I should say, a hundred and three years, because the fruits of the 1965 Voting Rights Act did not mature until the 1968 national election, where one could observe that the number of African American voters in the South had more than doubled since 1964.

         Unmentioned by Jacobsohn and Roznai was the additional revolution in women’s rights wrought by the U.S. Supreme Court in the decade of the 1970s. While the Court’s double innovation of that decade, first, establishing that laws discriminating on the basis of gender would be quasi-suspect under the Constitution, and, secondly, establishing that women and their medical practitioners could no longer be criminally punished for abortions is not widely viewed as having produced a “paradigm shift” in the way Americans experienced their Constitution, it probably should be. Court decisions of the 1970s did dramatically shift the kinds of things laws could do to women as a group, or to men as a group, from then on, in effect dramatically transforming the legal rights of the entire population. 

          In terms of the long range prism that the book encourages for viewing constitutional revolutions, one should perhaps acknowledge that the women’s rights revolution began in the late 19th century when reforms of married women’s rights to property swept across the states, and when states one by one, gradually began to grant suffrage to women. This first wave of women’s rights culminated in the Nineteenth Amendment to the U.S. Constitution in 1920, making suffrage rights national. One might acknowledge that there was a long two-phase revolution in women’s right, the first in 1850-1920, and the second in the 1970s.  This seems to be the book’s perspective, but my guess is that in terms of citizens’ perceptions, these felt like, and were, two separate revolutions.

            This book references dozens of countries’ constitutional changes and I found those discussions by far the most interesting aspects of the book. They reveal an impressive array of variation in constitutional arrangement around the world. They also offer up the 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, as has happened already in Hungary and seems be happening today in India.  These two cases plus the case of Israel, to my mind, presented the most interesting lessons in the book.

            A number of other scholars (Alexander Bickel, Barry Friedman, and Sanford Levinson, to name a few) have drawn attention to the fact that constitutional courts engage in a kind of extended, negotiation-type dialogue with the other branches of government and with the citizenry, with no one branch having a final, definitive say.  Jacobsohn and Roznai reveal that dimensions of this dialogue in India have been particularly dramatic. Upon India’s break from the British Empire, a Constituent Assembly was elected by the respective assemblies of the provinces. After the violent Hindu-Muslim conflict that ensued, ending with the separation between Pakistan and India, the Assembly met for two more years, producing a Constitution that took effect in January 1950. At that point it became the Provisional Parliament, to be replaced by the official first Parliament after democratic elections in 1952. The 1950 Constitution contains a Section III listing Fundamental Rights and a Section IV listing Directive Principles.  Tensions between these two sections have undergirded much (though not all) of the back and forth between the Indian Supreme Court and the Parliament.

            Perhaps uniquely among constitutions of the world, the Indian Constitution commands positive ameliorative action by the political branches. Article 38, for instance, says: “The State shall strive to promote the welfare of people by securing and protecting as effectively as it may a social order in which justice, social, economic, and political, shall inform all the institutions of national life.” On more than one occasion, the Supreme Court has decided that certain of the Fundamental Rights create checks on Parliament’s efforts to obey this mandate. Here is a synopsis of the constitutional negotiation highlighted in the book that has resulted from this constitutional tension. 1. Parliament initially adopted land reform. 2. The Supreme Court promptly declared it a violation of the right to property, specified in the Constitution. 3. Parliament then, in 1951, adopted the First Amendment of the Constitution, providing, inter alia that property reform to help the poorer sections of society could not be ruled unconstitutional. 4. The Court, capitulating, ruled in 1952, that constitutional amendments have higher standing than ordinary laws. 5. Then in 1967, the Court reared its head again, ruling that certain constitutional amendments can be beyond the scope of the legislative power that the Constitution established, and the Court had the power to declare such amendments void, as here, specifically, when they interfered with the fundamental right to property (Golak Nath decision). 6. In 1971 Parliament gave itself power to create non-overridable Constitutional Amendments, because it, Parliament held the constituent power of India. 7. It then immediately enacted the 25th Amendment, restricting the right to property, and accorded to Parliament the final say over what would be appropriate compensation for property acquired by government for a public purpose. 8. Two years later in the Kesavananda decision of 1973, the Court put forth the doctrine that there is a basic structure to the Indian Constitution that may not be violated by any action of Parliament, even a purported constitutional amendment. It would be up to the Court to say whether any constitutional amendment had to be declared void as in conflict with this basic structure, but the Court did uphold the curtailment of the right to property.

            A second set of Court vs. Parliament negotiations took place over affirmative action. The Constitution forbids the government from “discriminating against any citizen on grounds of religion, race, caste” and so forth. But it also mandates “The state shall promote with special care the educational and economic interest of the weaker sections of the people, and in particular of the Scheduled Castes and Scheduled Tribes.” Early on, a government policy reserving a set number of seats in state universities for the lower castes was struck down by the Supreme Court as unconstitutional discrimination (n.96, 328). Immediately, Parliament responded by putting into the First Amendment the rule that such affirmative action shall not be interpreted as religious or caste-based forbidden discrimination. This interbranch negotiation continued in 2005 when the Supreme Court struck down a state policy reserving seats for the lower castes even in privately run colleges. Again, Parliament used its Constitution-amending power directly to override the Court’s decision.

            The Constitution of India not only forbids religion-based discrimination but also declares India to be a secular state. In its famous Bommai decision (1994), India upheld an emergency national takeover of state governments on the grounds, of a “failure of constitutional machinery,” in three states that had been the site of, in the words of Jacobsohn and Ronzai, “an orgy of Hindu-Moslem violence.” To justify the takeover, the Court announced that secularism requires the equal treatment of all religions (167).  This book’s discussion of India brings out the fact that this interbranch dialogue, or negotiation, involves constitutional courts not only with branches of government but also with the voting public. Despite the Bommai case pronouncements, the Indian public put into power in 2014 the BJP Party, led by Prime Minister Modi, an expressly ethno-nationalist, pro-Hindu party. The party then amended the Constitution to destroy the independence of the Supreme Court, but the Court declared that amendment unconstitutional in 2015. After the book went to press, the Indian public in 2019 gave an even more commanding majority to Modi and his BJP. They then used their power to enact a law that in certain sections of India grants citizenship priority to non-Muslim immigrants. We can anticipate that the judicial-political negotiation of the meaning of the Indian Constitution will continue beyond the present moment.

            Similarly, the book describes in both Israel and Hungary, a Supreme Court that actively, albeit not without warrant in the officially adopted Basic Laws or Constitution, established secular, cosmopolitan, liberal norms.  In both states, a popular, ethno-nationalist reaction then drove political changes to the Constitution. In Hungary the changes entrenched the authoritarian powers of nationalist leader Victor Orban; and in Israel, the Basic Laws were amended to declare that the “State of Israel is the national home of the Jewish people . . . . [and] the right to exercise national self-determination in the State of Israel is unique to the Jewish people.” The original Declaration of the State of Israel had announced that the State of Israel “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion.” Has the new Basic Law, undone this earlier constitutional provision? Nothing is clear at this point.

            I once wrote of the U.S. Supreme Court that judicial review uses the Constitution as a kind of moral rope that to pull the public closer to justice, but if the Court pulls too hard or too fast that rope can break and reaction could set in. My reading of these stories in this book has confirmed my view that this reality functions in constitutional republics the world over.         

Leslie F. Goldstein is Judge Hugh M. Morris Professor of Political Science Emerita, at the University of Delaware.

[1] I speak loosely. Only males could vote in the U.S. in 1870. The 15th established that race could not be the grounds of vote deprivation (It was silent on what could be other grounds, such as gender, ability to read or pay a tax, and so forth).

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