Locating Constitutions in the Modern World

Guest Blogger

For the Balkinization symposium on Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright, 2021).

Madhav Khosla

Linda Colley’s important new work, The Gun, the Ship, and the Pen: Warfare Constitutions and the Making of the Modern World, arrives at a unique intellectual and political moment. The interest in constitutions across space and time is increasing as historians and lawyers are coming to appreciate the dramatic place that canonical legal texts have held in the construction of modern political life. Alongside, many of our conventional and established constitutional truths, from the role and power of representative assemblies to the sanctity of rights and liberties, are facing fresh challenges. On the one hand, we are finally understanding how constitutions are ubiquitous; how they are far too important to be left to lawyers. On the other hand, the role and value of constitutions is being questioned as crises loom large for several constitutional democracies whose canonical texts seem to offer few defenses.

The Gun, the Ship, and the Pen gives us a profound sense of just how ubiquitous constitutions are. Colley rightly observes that constitutions are almost invariably studied in the context of a specific legal system. Even though legal scholarship has witnessed a notable comparative turn over the past two decades, the study of constitutions is still typically performed with reference to a particular legal order. Through a series of fascinating chapters – refreshing global if under the shadow of European developments – Colley portrays how constitutions – their idea, drafting, and content – gripped leaders, revolutionaries, citizens, and subjects from 1750 onward. From Catherine the Great’s Nakaz to the Philadelphia delegates, written words and the printed medium were embraced with intent and enthusiasm.

What drove this global move towards written canonical texts? The driving force, Colley argues, was a change in the character of warfare. The scale and cost of wartime engagement placed profound stresses upon nations, who “elected to experiment with written constitutions as a means to reorder government, mark out and lay claim to contested boundaries, and publicize and assert their position at home and on the world’s stage”. The performance and management of wars not only became a key task for leaders, it also often led to altered political arrangements that invited new canonical texts. Simply put, wars destroyed and created nations; and constitutions were central to that process.

But though wars may well have been central to the 18^th and 19^th centuries, it is less certain that they fully capture the dramatic post-colonial constitutional experiments of the 20^th century. What is special, for example, in the case of India or South Africa is not merely their atypical struggles for freedom, but more fundamentally the burden imposed upon the new written constitutional texts. The documents that created these nations, as I try to argue in the Indian context in India’s Founding Moment, sought to inaugurate an entirely new language for politics. They attempted a new universalism, an embracing of ideas of self-rule in regions where democracy’s assumed ingredients – a certain level of literacy and income, and a degree of state capacity – were lacking. For these nations, democratic politics could itself create the conditions for its existence; and a constitution held the promise of constructing such a politics.

These 20^th century revolutions and those of prior centuries grasped a crucial truth about our political ontology: constitutionalism is a world-making activity. One of The Gun, the Ship, and the Pen’s many strengths is the force and brilliance with which it brings this idea to light. Though Colley’s wide-ranging narrative, we are exposed to the radically modern belief that our political world can indeed be altered, that it can be made and remade, and that constitutionalism is above all about enabling that making and remaking. The rules that govern us in fact make us – they constitute us – a new set of words can bring about a new set of practices.

Read at the present moment, Colley’s emphasis on the importance that constitutions have enjoyed holds two significant lessons for our time. The first is that the challenge to constitutional democracy that confronts us today – the rise of populism, as it has come to be known – is not merely from those who seek to conduct politics on very different terms. It is also, in no small measure, from those who believe that our world cannot change at all. Throughout The Gun, the Ship, and the Pen, one comes to see how constitutionalists are not only fighting against those with an alternative political proposal; they are also battling political cynicism. To believe that our world cannot be made and remade, that our political life cannot be conducted in new and fresh ways, is, to put the point plainly, a deeply anti-constitutionalist sentiment.

The second insight that emerges from the work, through an interplay of political actors and written texts, is that the contemporary concern that is sometimes offered that written texts like constitutions cannot save democracy – a concern that carries a certain skepticism towards constitutionalism – somewhat misses the point of constitutions. One can regard constitutions as vitally important, and as a remarkable means to reorder our political life, without seeing them as self-executing. The characters in The Gun, the Ship, and the Pen do not believe that their role ends when a constitution comes into force. No constitutional order can be possible without some external elite political and deeper social support. The magic of modern constitutionalism is that the people who commit to a constitutional order are themselves remade through working within that order. For decades, we have assumed that our constitutional orders are creating democratic citizens of us all. Whether our contemporary crises will give rise to a new kind of citizenry remains to be seen; the role of constitutional politics in those changes remains certain.

Madhav Khosla is an Associate Professor of Law at Columbia Law School. You can reach him by e-mail at mk3432 at columbia.edu.