Wednesday, October 27, 2021

Of Constitutions and Constitutionalism

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).

Erin F. Delaney

In her sweeping new book, The Gun, The Ship, and the Pen, Linda Colley tells the history of written constitutions—a “contagious political genre progressively crossing land and sea boundaries” (p. 3).  She presents the single-document written constitution as an emerging political technology, born in the eighteenth century and developed during the long nineteenth century for a variety of political purposes by a variety of political players.  Fun to read, the book sparkles with fascinating details, bedazzling the political histories of jurisdictions as varied as Corsica, Tahiti, Venezuela, Russia, and Japan, among many others.
The title presents the core of Colley’s argument:  Written constitutions are closely connected to the rise of hybrid war, meaning war conducted (often simultaneously) by land and sea; and their rapid spread was supported and sustained by the increased globalization that such wars introduced.  Colley presents several ways that these “recurrent episodes of armed violence” (p. 413) operated to encourage the writing of a constitution.  For example, the domestic costs of hybrid war—both in terms of manpower and treasure—required governments to raise taxes and conscript troops at new levels.  Effectuating these demands led to the written acknowledgement of certain rights or participation in governance.  In other systems, the defeat and collapse of the governing order in the wake of hybrid war led to needs to reorient or reinvent society, and a written statement of aims and goals served to rally or to bind together a disparate and disaffected community. 
Hybrid war facilitated expansionist and colonialist aims by empire builders, and the new political technology expanded around the globe.  Napoleon Bonaparte (passim) and Thomas Stanford Raffles (pp. 200–202), in turn, promoted written constitutions to legitimize and solidify French and British imperial projects.  In Japan, a written constitution supported claims to that nation’s place as a world empire alongside Western countries (p. 383).  Those under threat of colonization, such as Pomare II in Tahiti (p. 293) and King Kamehameha III in Hawaii (p. 299), turned to written constitutions (with only limited success) to mold their realms into polities that would be recognizable to the imperial powers and thus able to demand recognition, staving off conquest (pp. 293, 299).  And even the conquered attempted to put their claims to nationhood in constitutional form, as the Cherokee tried and failed to do inside the ever-expanding United States (pp. 150–52).
Colley argues that scholars have been blinded to this richer and more complex story of written constitutions by the bright light of the French and American revolutions and subsequent constitutional projects.  Pressures resulting from hybrid war and globalization explain the proliferation of written constitutions better than “the rise of democracy and the lure of (mainly Western) notions of constitutionalism” (p. 413).  (And the French and American examples themselves can be understood as driven by the costs of hybrid war.)  
If it is true that “from the outset, written constitutions have been protean phenomena” (id.), can anything generalizable be said about constitutions, or for that matter, constitutionalism?  Colley concludes that “constitutions have always taken different form and served multiple purposes, and this has been an essential reason for their success and persistence” (id.).   But though she is reluctant to generalize, Colley does shed light onto at least one shared element of these hybrid-war constitutions, intuited from her discussion of Britain. 
Why didn’t nineteenth-century Britain need a single-document written constitution?  Colley explains that its colonies allowed it to avoid raising taxes or conscripting troops at home.  It thus had domestic “political stability” leading to “constitutional quiescence and complacency” (p. 215).  It didn’t need a written constitution’s help “forging enhanced support and cohesion at home and fostering positive publicity abroad” (p. 73).  Thus, among the multiplicity of purposes that written constitutions served, a core task (and presumably at least one measure of the success Colley highlights) was to achieve stability.
Stability as the touchstone for constitutional success (whether written or unwritten) is a minimalist conception, and, as such, sits alongside a “parsimonious” definition of constitution: in the words of Aziz Huq, “a legally authoritative written account of at least some of the institutions necessary for the operation of a state over a given geographic space for some extended period of time.”  And indeed, Colley’s definition tracks Huq’s—a written constitution provides a way of ordering, or reordering, government.  But the book does introduce ideas of constitutionalism that go beyond a strictly minimalist view.  In her descriptions of hybrid-war constitutions, it is possible to detect elements of what might be termed hybrid-war constitutionalism.
One of the most striking, and pervasive, aspects of this constitutionalism is its gender:  constitutionalism as constructed by and for men.  The drafters might have been current rulers (monarchs or emperors), or leaders of resistance movements, or military men seeking power, but they were rarely women (p. 270).  And if written constitutions developed as a way of allowing for (or recovering from) military campaigns, their content must be geared to those fighting.  Minimal participation in governance and limited rights came with citizenship, which in turn was “explicitly gendered and tied to military service” (p. 175).  In fact, Colley notes that these new constitutions “often amplified, as opposed to merely reaffirming in words, constraints on female political involvement,” converting elements of social exclusion into law (p. 268).  This constitutionalism was intended to “exclude and marginalize” (p. 277), not only women but others deemed peripheral to the national core.  
Colley’s history thus supports efforts to unsettle the view that liberal constitutionalism simply is constitutionalism.”  Indeed, the exclusive, power-enabling elements of hybrid-war constitutionalism do not necessarily encompass limited government or democracy and certainly do not present a garantiste framing.  The most we can say is that it is about ensuring stability for dominant majority men.
But the book seems uncomfortable with that result.  Eavesdropping on the text, one can hear conflicting whispers. For example, Colley chooses to include the Nakaz, Catherine the Great’s written text of 1767 outlining her understanding of the Russian government.  There are many possible reasons to include the Nakaz, which Colley acknowledges was not a written constitution—not least of which is that it was written with similar goals of ensuring regime stability.  But the content seems equally important to Colley:  Catherine’s inclusion of equality, the concept of the “people,” religious toleration, limitations on censorship, and even welfare provisions (p. 74).  And later in the book, we are shown the influence of Bentham, with his universalist claims to constitutionalism as embodying “rational principles of liberal justice and rights” (p. 204), offering his advice to liberators (Simón Bolívar) and emperors (Alexander I), and constitution makers from Tripoli to Argentina.
In short, Colley also highlights those liberal democratic properties that have accrued around the concept of constitutionalism and whose lineage is more clearly traced to the French and American revolutionary experiences.  But the reader is left uncertain: what exactly is the link between hybrid-war constitutionalism and liberal democratic constitutionalism?  Colley’s treatment suggests they are interwoven, but the nature of their interrelationship remains vague.  We are left to wonder whether, how, or to what extent elements of the liberal democratic order may themselves be structured by this history, and whether it would be possible to transcend this history. What might emerge from a female-centered constitutionalism?  Can we conceive of a constitutionalism born out of peace processes, rather than to facilitate war?  What more might we imagine for constitutionalism? 
In the examples at the conclusion of her book—the South African man demanding Zuma’s resignation, “conceal[ing] his face behind a battered copy of his country’s constitution” (p. 421), or the Russian woman, a pro-democracy activist, reading the constitutional text to the “riot police, formidable men in body armor, brandishing shields and batons” (p. 424)— Colley gestures obliquely at a substantive aspiration for what writtenness might accomplish.  It feels like much more than stability at stake.  
Erin F. Delaney is Professor of Law at Northwestern Pritzker School of Law, with a courtesy appointment in the Department of Political Science. You can reach her by email at

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