Monday, January 18, 2021

Toward a taxonomy of constitutional change – Reflections inspired by Gary Jacobsohn and Yaniv Roznai’s Constitutional Revolution.

Guest Blogger

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

Gordon Silverstein

There is no shortage of academic interest in the intersection of constitutions and revolutions: A quick shelf-scan (or Amazon search) reveals Constitutional Revolution, Revolutionary Constitutions; The Revolutionary Constitution, Revolutionary Constitutionalism (Albert) and Revolutionary Constitutionalism (Gardbaum). And that is really just a start.

Something’s happening here, but what it is, isn’t exactly clear.

Gary Jacobsohn and Yaniv Roznai are absolutely right – few terms are as overused or under theorized as are the various combinations of the words constitution and revolution. While others strive to enclose these common terms, Jacobsohn and Roznai expand them, arguing that we miss far too much by insisting on limiting the reach of these terms to what might be called ‘tree-snap’ moments of constitutional change while ignoring changes that may have been produced instead by evolutionary change – but regardless of the time frame may well have just as potent an impact. At the other end of the spectrum, they help us to understand that a revolutionary moment may be just that – a passing moment. Trees may snap, but they are cleared, power is restored (in all senses of the word) and constitutional life as it was understood reigns supreme. To exclude either of these – the evolutionary revolution and the revolutionary speed bump in the midst of constitutional normality would be a serious error. And I quite agree. To exclude these is to miss some of the most important change we have witnessed in constitutional development across the globe. But what about all of those titles listed above (and the many others a bit more searching would have produced)?

There seem to be three possibilities: (1) There are some sort of important stakes in determining what is ‘in’ and what is ‘out’ as constituting revolutionary change; (2) There actually are a series of nuanced differences that need to be addressed by similar, but quite distinct concepts; or (3) we really should think of the various versions of revolution(ary) and constitutional(ism) as species of the genus major constitutional change. Then we might be able to construct a more fine-grained taxonomy or typology.

While they might well reject my reading – this is one of the most important lessons I draw from Jacobsohn and Roznai, though there work very clearly is very deeply engaged with the terminological debate. This is not a criticism – it may well be the case that the fences that have been put up around revolution(ary) Constitutional(ism) need to be first moved back, expanded and more comprehensively understood before we can move the focus up a level, from species to genus.

And so I will briefly do what law students are told over and over never to do. I will ‘fight the hypo.’ – I will push back against the premise underlying the exam or Socratic interrogation. I do this knowing ahead of time that I cannot win and that the most I am likely achieve is to annoy my peers, as well as the instructor (who came up with the hypo in the first place) and obviously thinks it well worth pursuing.

The hypo here is that major constitutional change is either revolutionary or it is not – and that our task is to identify the criteria that will place one sort of change within the enclosure and other sorts out.

While Jacobsohn and Roznai are working within the structure of the hypo (as any talented law student or professor would) they do recognize that readers might be forgiven for seeing this as a debate about semantics, involving terms that are inherently contradictory and even, as the authors state, sometimes “oxymoronic.” “If a certain constitutional change is revolutionary, it must be unconstitutional,” they write on page 5. “If it is a constitutional change how can it be revolutionary?” Connecting the terms “constitutional” and “revolution” leaves us with a curious oddity whose oxymoronic features can easily preclude “a proper understanding of its meaning….”

So why fight so hard for this term?

This volume is compelling and persuasive in its argument for a more expansive understanding of revolutionary change, but it is likely a Sisyphean task given how embedded is our notion of that term and concept. It would seem a more promising (and ultimately more rewarding task) to stick with the more traditional ‘tree-snap’ version of revolution but add to it a set of other species of major constitutional change. Not only would this avoid the black hole of fighting for a term that is already widely misunderstood, but it would considerably widen the field and open the way for a more precise and far more expansive taxonomy or typology.

So many important cases (and therefore so many models of major constitutional change) are left out when we are fighting purely on the turf of tree-snap vs. evolutionary-revolutionary change. Consider the Republic of Singapore. Here is a case that surely fits in the genus of major constitutional change, but hardly anyone would place the city-state on a list of countries that have experienced revolutionary constitutional change. But Singapore has effected major constitutional change through the long-standing provisions for constitutional amendment, which can be had with a 75 percent vote of Parliament. And major change has been implemented in this manner, concerning judicial review, individual rights and national security among others. But that change has come at the behest of the ruling party – the People’s Action Party – which has ruled the island nation since independence, winning more than 75 percent of seats in every election from then to now. [1]

Or – at the other end of the spectrum – the United States is a country hardly anyone would accuse of lacking bona fides as at least one model of revolutionary constitutional change. And yet much of that revolutionary change has been genuinely conservative in its orientation. One can start with the Declaration of Independence itself – the radical and revolutionary (though non-binding) document that embodies the revolutionary norms and values of consent, equality, liberty and participation.

The Declaration does not start with radical demands for a rupture – violent if necessary. No – it suggests that what is needed is the dissolution of a merger that is no longer working for both parties. They went out of their way to pitch this as little more than a severing of business ties, a no-fault divorce. It has become necessary, they wrote, “to dissolve the political bands” which have “connected” one people with another. This “separation” has come about at least in part not because the Americans have radical new demands on George III, but rather because they have been denied the long-standing, traditional rights of Englishmen. The laundry list of complaints that follows is very much the grievances of subjects who desire no more (nor less) than would be their lot were they residing in Liverpool or Manchester. The Declaration was carefully crafted, of course, aimed at convincing the King of France that this is anything but a war on all monarchy – which of course is precisely what Thomas Paine said it was.

Paine’s Common Sense is the revolutionary document. But Paine left after the Revolution, only to flee Britain when his attack on Monarchy would have landed him in a British prison. France, of course, was a genuinely revolutionary experience in every sense and Paine was quick to dive into a compelling, and genuine, revolution in France – only to land in a Paris jail in 1793. The U.S. may be a model of revolutionary constitutionalism, but may well have produced more Madisons and fewer Paines then one might assume.

Demanding no more than classic, conservative values – as Jacobsohn and Roznai note – we find the heart of Martin Luther King’s March on Washington speech to be a clarion call not for revolution, but for the rights and values articulated in the Declaration of Independence. Though more radical voices would eventually challenge King, on that day and in that moment, his was a call not for radical and revolutionary change, but for a nation to live up to its own stated promises and fulfill long-standing obligations:

“When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence,” King said, “they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness. It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned.

Is this harkening to the radical assertions of the Declaration, or holding up a mirror to society and saying we want no more than is our due. And it is our due because it was promised almost 200 years earlier.

“I have a dream” King added at the prompting of those standing just behind him. “I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal.” This was not a call for a brave new revolutionary world, it is a conservative demand that the nation and people fulfil their own long held beliefs and obligations.

Or consider Representative Barbara Jordan, sitting on the House Judiciary Committee considering Articles of Impeachment for Richard Nixon in 1974. Jordan seared the American conscious when she noted in her 2 am address to a packed hearing room in the Capitol, that the nation had changed radically since the Constitution was written – a Constitution which had explicitly left her out. But far from a call to arms, Jordan instead instructed her audience that  “through the process of amendment, interpretation, and court decision,” change had come, and that on this day, as an elected Member of Congress and inquisitor considering impeachment of the President, she had “finally been included in "We, the people." Far from rejecting this flawed and slow-to-change Constitution she celebrated it. In a loud, clear voice she declared that “My faith in the Constitution is whole; it is complete; it is total….”[2]

 And what about America’s revolutionary moment of 1969? When a law student from California rose to address the Harvard Commencement in 1969 everyone expected a radical screed. But far from asking those assembled to throw off their traditional political and social commitments, Meldon Levine upheld tradition and norms and values and accused the parents and teachers in the crowd of being the apostates, of being the radicals. We are not trying “to subvert institutions… or challenge values which have been affirmed for centuries,” Levine said. “We are not conspiring to destroy America. We are attempting to do precisely the reverse: we are affirming the values which you have instilled in us and which you have taught us to respect.” All we ask, he concluded, is that “you allow us to realize the very values which you have held forth.”[3]

Surely the U.S. – unlike Singapore – would be on everyone’s list of revolutionary constitutions and yet, how to clearly distinguish Singapore and the United States? Or Germany with its  eternity clauses and Singapore with a constitution that can be amended by the Party in power at its leisure? To fully understand the revolutionary constitution, I think we need more than revolutionary or not-revolutionary to define the range of our taxonomy.

I hope this is a first and not a final step for Jacobsohn and Roznai. This book does a tremendous service in helping us to recognize that revolutionary constitutional change is a far wider and more complicated concept than we might imagine. My hope is that this work will help spur others to step back as well as forward – back to understand the broader genus of major constitutional change of which the revolutionary sort is one species or even sub-species. And forward to build a more comprehensive taxonomy. This may require turning away from the semantic battleground – but it would be a strategic realignment and anything but a defeat. And with that move from species to genus, I would be delighted to drop my resistance to the hypo and join them in their effort. Jacobsohn and Roznai have given us a great start and it would be wonderful indeed to see new titles, studies and ruminations emerge, built on the foundation they have laid.

Gordon Silverstein is Assistant Dean, Yale Law School and Lecturer in Political Science, Yale University.

[1] And indeed, they have used this authority to significantly curtail judicial review in national security and individual rights arenas, among others. See Gordon Silverstein, “Globalization and the Rule of Law: “A Machine That Runs of Itself,” 1 ICON 3, 2003 and Gordon Silverstein, “Singapore: The Exception that Proves Rules Matter,” in Ginsburg and Moustafa, Rule by Law: The Politics of Courts in Authoritarian Regimes. Cambridge University Press, 2008.

[2] Rep. Barbara Jordan, speaking at the opening of the Watergate Hearings in July 1974.

[3] The speaker was Meldon Levine, a law student at Harvard who would go on to serve five terms in the House of Representatives from California. The speech is quoted at some length in Samuel P. Huntington’s American Politics: The Promise of Disharmony. Harvard University Press, 1981, p. 2-3.

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