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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Constitutional Revolutions and Revolutionary Constitutionalism
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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.
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Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |