Wednesday, January 13, 2021

Constitutional Revolutions and Revolutionary Constitutionalism

Guest Blogger

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

Stephen Gardbaum

I am delighted to participate in this book symposium on Gary Jacobsohn and Yaniv Roznai’s Constitutional Revolution and to think further about the fascinating subject they have written so persuasively and authoritatively about.  This is an outstanding book, full of rigorous, clear, and systematic analysis of a much-used but rarely focused-on concept and supported by a wealth of comparative examples and in-depth case studies.  Overall, its essential thesis strikes me as compelling: the concept of constitutional revolution is broader than often supposed, incorporating several different legal modes of constitutional paradigm shift (including formal and judicial amendment) in addition to the illegal, and the primary criterion of application is substance, the extent of change, rather than the process by which it was brought about.

That said, I do of course have a few quibbles, questions and concerns about the analysis, which focus on the two main conceptual chapters of the book: chapter two on theorizing the constitutional revolution and chapter seven on constitutional revolutions and constituent power.

First, on the breadth of the authors’ concept, I found myself wondering about the relationship between constitutional revolutions and constitutional regime change (and also, similarly, between constitutional revolutions and constitutional identity).  More specifically, are all changes of constitutional regime constitutional revolutions?  If so, what amounts to such a regime change?  Is a new constitution sufficient?  It strikes me that there’s a certain ambiguity or ambivalence in the analysis here.  At times the answer seems to be no, where suggesting, for example, that the Egyptian political revolution of 2011 may have resulted in two changes of regime and accompanying constitutions (Mubarak to Morsi, and Morsi to el-Sisi), but not in a constitutional paradigm shift.  But at other times, the answer seems to be yes, where, for example, the authors write that the legal continuity of many constitutional revolutions must not be confused with regime continuity (p. 98).  Or in the chapter on constituent power, where they indicate that any exercise of the constituent power, whether by the constituted organs or by the people, results in a constitutional revolution (p. 260).  But if all changes of constitutional regime amount to constitutional revolutions, there’s a concern about watering down or devaluing the noun.  Has France had (at least) sixteen constitutional revolutions since 1789?  If not, how many?  What amounts to such a change of regime (or identity)?  How much or what type of change in regime is needed for a paradigm displacement in constitutionalism? 

Second, I found myself a little confused about the mixture of metaphorical and literal uses of the term “revolution” in constitutional revolutions.  The authors seem to suggest that some constitutional revolutions involve the “metaphorical” sense of revolution employed with the terms industrial, sexual, and scientific revolutions, as for example when referring to a recent constitutional revolution in the United Kingdom triggered by enactment of devolution legislation and the Human Rights Act 1998.  But others appear to involve the “literal” sense, where they are connected to, or the product of, a political revolution.  If this correctly reflects their view, it seems a little strange to me to have a single concept that involves both literal and metaphorical use of the term revolution.  A literal sexual revolution, whatever that might be, would presumably be a quite different from the metaphorical one.  Relatedly, the concept of a political revolution seems essential, as it identifies a truly distinctive phenomenon in the world.  This seems far less true of constitutional revolutions.  I understand that their project is descriptive, but what we would lose if we decided to drop the noun in constitutional revolution and just talked of major or radical constitutional change?  The concept does not seem equally essential, more of a convenient shorthand.  Perhaps this is why it is often placed in quotation marks.

This leads me to the relationship between constitutional revolutions and revolutionary constitutionalism, an issue that I have discussed in my own previous work on the latter.[1]                

As just mentioned, the authors write that their concept of constitutional revolution can accommodate and include constitutional transformations brought about by, or connected with, a political revolution, as constitutional revolutions are about substance and episodes of revolutionary constitutionalism sometimes result in radical change (p. 306 n9).  Accordingly, for the authors, revolutionary constitutionalism may be one type or mode of constitutional revolution, but there are several others brought about by legal means and without a political revolution.  I continue to think, however, that constitutional revolutions and revolutionary constitutionalism are fundamentally different phenomena and that the latter is not just one type of the former, even though they can overlap in that both may take place during the same historical event.  So, to call the American or French Revolutions constitutional revolutions is to significantly understate or mis-state what they were.  Both may have involved constitutional revolutions, but they were not limited to this or most accurately described as such.

The Israeli constitutional revolution of 1992 or the UK one of 1998 are simply not the same type of phenomenon as the Romanian revolution of 1991 or the Tunisian of 2011.  The New Deal constitutional revolution and the American Revolution are not accurately or usefully categorized as the same type of event, even though both involved radical legal change.

Finally, chapter seven on constituent power contains some very interesting and original analyses.  Among these is the suggestion that although process is not key to the concept of constitutional revolutions, it is often key to their legitimacy.  Here, the authors contrast the broad public participation via referenda in recent formal amendments to the Irish constitution with the still deeply contested constitutional revolution by the judiciary in Israel and the vulnerable political status of the elite roundtable process in Hungary 1989.  This strikes me as in some tension with the main claim, as if sneaking in the importance of process through the back door of legitimacy.  I understand that, analytically, the existence of a constitutional revolution is one thing and its legitimacy another, but if process is nonetheless key to an enduring, politically entrenched constitutional paradigm shift, then this blurs the two or renders the main claim a little more formal than it earlier appeared.  Moreover, doesn’t the existence of a paradigm shift imply general acceptance among the relevant community?  Contrariwise, I wonder if part of why we talk of the New Deal constitutional revolution or the Israeli Supreme Court’s constitutional revolution is the questionable legitimacy of how they were brought about; this is part of what makes them “revolutionary” acts.  Would we still talk of a constitutional revolution if there had been a formal constitutional amendment in either case?  Do we in fact think of the Fourteenth or Nineteenth Amendments as constitutional revolutions, as distinct from particularly important, consequential, and radical constitutional changes?

Stephen Gardbaum is Stephen Yeazell Endowed Chair in Law, UCLA School of Law.

[1] Stephen Gardbaum, Revolutionary Constitutionalism, 15 Int’l. J. Const. L. 173, 178-81 (2017).  

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