A. The Standard Instance

The predominant view in the social science literature concerning the generic concept is rather straightforward. Thus, “there is a general consensus that a minimally necessary characteristic of revolution is some wholesale and unconstitutional replacement of the governing body” (Kotowski Reference Kotowski and Sartori1984, 416). The consensus is also well represented in the philosophical literature of the law; as the Austrian legal theorist Hans Kelsen (Reference Kelsen2006, 117) concluded, a revolution occurs “whenever the legal order of a community is nullified and replaced by a new order in an illegitimate way … not prescribed by the first legal order.” In addition, for most theorists of revolution, illegitimate nullification and displacement of the political order must be accompanied by violence.Footnote ⁵ In her classic work on the subject, Hannah Arendt, although idiosyncratic in many of her reflections on revolution, was fully supportive of this orientation. It then followed for Arendt (Reference Arendt1977) that the idea of the constitutional revolution made sense only as a descriptive term to refer to what happens when a violent rupture in political continuity liberates a people from oppression and then leads to the adoption of a freedom-enhancing constitution. In the nexus between a specific revolutionary event and an ensuing constitution, the reality of a constitutional revolution ultimately depends on whether the meaning of the first has any substantive constitutive significance. Unreal would be any depiction of a revolution that somehow was directly traceable to an existing constitution without seeking that charter’s destruction and replacement.

Accordingly, the American Revolution was both a revolution and a constitutional revolution, but the “New Deal Revolution” of a century and a half later has, unless one is speaking metaphorically, no coherent meaning.Footnote ⁶ The same incomprehension would be the response to other events in such far-flung places as Israel, South Africa, the United Kingdom, and Hungary that, whatever their differences, have been characterized as constitutional revolutions despite displaying little of the decisive rupture and repudiation that is often viewed as the necessary predicate for recognition as such. Here, then, we have our first critical conceptual distinction, and it speaks less to the substance of constitutional change than to its originating source. Consistent with conventional accounts, to be revolutionary requires contra-constitutional action; as we will see, however, to have that activity (or other activity that may not be so obviously illegal) identified as revolutionary in a constitutional sense, the focus will have to shift from the process to the result produced by that process, namely, constitutive arrangements of substantially different orientation from what preceded it. In the familiar telling, we are left with a rather straightforward definition of a constitutional revolution: the establishment of a new constitutional order after the illegal overturning of a previous order.Footnote ⁷ The sequential, linear aspect of this rendering avoids the oxymoronic difficulty subsumed in the joining of seemingly contradictory terms.Footnote ⁸ A political revolution occurs and then, as Arendt (and Ackerman) stipulated, a constitution is framed to consolidate the achievements of the revolution. Importantly as well, the consolidation culminates in the rapid ascendancy of novel governing arrangements.

Another significant and related distinction pertains to the substance of the change associated with the idea of revolution, although transcending the distinction is a broader agreement that however the variable of change is to be conceptualized, it must fit within the understanding just elaborated, namely, that the transformation be decisive and nonincremental. Here again the literature on the generic term helps in thinking about the more restricted concept. It reveals that the deepest fault line among theorists lies at the social/political divide, with conceptual outcomes hinging on whether the term “revolution” is to be more closely aligned with class conflict and social change or political breakdown and structural change. These of course are not mutually exclusive categories; as Christopher Kotowski (Reference Kotowski and Sartori1984, 409) correctly points out, “Everyone would agree that the French Revolution was a true revolution; however, different authors will characterize the event as either the birth of a new order or as the ‘breakdown’ of a system.”Footnote ⁹ Yet consensus is lacking on the extent of the change necessary for revolutionary success and certification: political change may be a necessary condition, but is it in at least some circumstances a sufficient condition?Footnote ¹⁰

For some the answer is most assuredly not. So, for example, Barrington Moore (Reference Moore1966, 112) says of the American Revolution that since it “did not result in any fundamental changes in the structure of society, then there are no grounds for asking whether it deserves to be called a revolution at all.” However, in Charles Tilly’s (Reference Tilly1978, 193) rendering, “A revolutionary outcome is the displacement of one set of power holders by another.” Unless, however, this minimalist view of political breakdown and displacement is linked to a more substantive reorientation in political aspiration and commitment, it offers a somewhat hollow conceptual alternative to the expansive transformation imagined by Moore and the others in the societal reconfiguration school. Perhaps the most prominent—albeit controversial—substantive counter is Hannah Arendt’s (Reference Arendt1977, 25) insistence that the goal of political liberty define the revolutionary project. “Only … where the liberation from oppression aims at least at the constitution of freedom can we speak of revolution.” The power of the people to bind the future through the entrenchment of principles that constituted the people as the legitimate source of sovereign authority was the essence of the revolutionary achievement.Footnote ¹¹ In accordance with the perspective advanced in this article, Moore is wrong in denying revolutionary meaning to the constitutional achievement of 1787 because of its insufficiently social significance; Tilly is correct in acknowledging its revolutionary importance, albeit for the wrong reasons (i.e., the displacement of power holders must be accompanied by displacement in constitutional orientation and experience); and Arendt is justified in finding in the redirection of constitutional aspiration to the achievement of political liberty a sufficient basis for affirming 1787 as a constitutional revolution but mistaken in limiting such an affirmation to only one type of historic displacement.

At the constitutional level, this debate expresses itself in various ways. The most explicit manifestation is the text itself; in the American case, for example, Moore’s questioning of the revolutionary bona fides of the American Revolution is arguably supported by the inattention of the 1787 document to social transformation. Of course that same document, with its opening invocation of the people as the source of governing power—commonplace today but strikingly original at the time of its writing—presents equally compelling evidence for Arendt’s celebration of the American achievement as the purest form of revolutionary accomplishment. In contrast there are the many constitutions—Cuba’s, for example—that not only proclaim their revolutionary agenda as the culmination of a successful (and violent) overthrow of an unjust regime but do so without concealing the goal of societal upheaval they are designed to facilitate.Footnote ¹² Starting from Moore’s premises, Cuba’s was a successful revolution (in the empirical sense); from Arendt’s, the absence of a freedom agenda negates its—and the constitution’s—revolutionary pretensions.

Both of these examples fall under the heading of illegal ruptures, in which a new constitution follows the forced ending of the previous order.Footnote ¹³ Additional contrasts may be drawn as well from instances of constitutional displacement occurring within the parameters of arguable legality. These are cases of paradigmatic change unrelated to the overthrow of a prior constitutional order but which involve activities whose irregular or extraordinary character have the potential for being strongly challenged over their questionable legitimacy.

The American experience is illustrative. Thus, the adoption of the Fourteenth Amendment, undoubtedly the most consequential formal change in American constitutional development, “would never have been ratified if the Republicans had followed the rules laid down by Article Five of the original Constitution” (Ackerman Reference Ackerman1991, 45). Yet however dubious the legality of the process by which the Constitution was altered, even more interesting are the competing interpretations of the resulting substantive changes in constitutional understanding and meaning: (1) The illegality of the incorporation is consistent with the transgressive nature of the changes, which, in their radical reconfiguration of governing principles, were the culmination of a violent campaign to uproot the original constitutional design.Footnote ¹⁴ (2) The irregularities of the ratification process are not so different from those accompanying the adoption of the 1787 document, and in both instances the extraordinary efforts were driven by a desire to redeem the original promise of the revolution through major course corrections in constitutional direction. This second understanding can further mean either or both of the following statements: (a) By its major displacement of power to the national level, the amendment sought a breakdown of the structure of exclusiveness that had confined the practice of political freedom to ascriptively privileged groups. (b) By its major displacement of power to the national level, the amendment created the potential for a substantial adjustment in the relative social standing of previously marginalized groups and the eradication of entrenched societal inequalities.

A range of similar interpretive possibilities presents itself for other countries—for example, South Africa, India, Ireland, Hungary—where the intrasystemic path to fundamental change has engendered controversy with respect to both the procedures implemented to pursue it and the nature of the change to which it leads. Whether those transformations are portrayed as mainly political or social, the revolutionary rhetoric that accompanies them often does not match the incrementalism that follows the constitutional break. It is for this reason that in her study of constitutional design in deeply divided societies, Hanna Lerner (2011, 39) asks us to look closely at “the relationship between constitution-making and time: whether the constitution represents a revolutionary moment or rather marks a beginning of an evolutionary process linked to gradual social and political change.” Yet as we will see, a constitution can be both a revolutionary moment and the commencement of measured and continuing change. Particularly in the case of constitutional revolutions not connected to certifiable revolutionary upheavals, their aspirational character necessarily entails a high degree of uncertainty in establishing their ultimate transformative impact. To be sure, it is also true that what contemporaneous political actors insist is a revolutionary moment in constitutional development will sometimes later be confirmed as an event of decidedly lesser significance.

B. Another View

How do we account for a constitutional revolution that occurs within an intact constitutional setting? In what sense would such a construction embody conceptual coherence?

Again, the generic concept should be our point of departure. In going there, Sartori’s discussion of the “semantic field” may help to enhance the appeal of a seemingly defiant conundrum. In essence it asks us to consider a concept’s elasticity by situating it in relation to neighboring terms; surely types of violence represent a semantic field within which revolution would find easy affinity, but so too would types of illegal political change (Kotowski 1984). These semantic fields, of course, are compatible with the above articulation of the constitutional revolution, but they fall short of legitimating any claim of authenticity for the alternative meaning. For that to happen we would need some connection to a more inclusive terminological neighborhood, the most obvious candidate being types of radical political or social transformation. One type that qualifies for incorporation within the field would be intraconstitutional changes that arguably leave the document with a significantly altered identity, so much so that it might lead someone to question whether such “legal” changes were indeed legitimate. Such questioning has occasionally arisen in the face of constitutional amendments deemed unconstitutional for substantive reasons, but the notion that these constitutionally prescribed changes are illegitimate is not an internationally dominant officially sanctioned position, as it represents the understanding of only a small minority of countries (Jacobsohn Reference Jacobsohn2006; Albert Reference Albert2009; Halmai Reference Halmai2012).

An emphasis on far-reaching constitutional transformation is all the more compelling if we consider that it is sometimes the case that this kind of change is notably absent from those transitions that are both violent and illegal. Take, for example, the Egyptian Revolution of 2011. As of this writing nothing definitive can be said about it, certainly with respect to the magnitude and scope of the broader changes accompanying the overthrow of the long-serving authoritarian government and the subsequent deposing in 2013 of the ill-fated government that took its place. But an emerging narrative has become increasingly evident in which the revolutionaries of Tahrir Square, diverse as they were in their goals and aspirations, confront a disturbing reality of frustrated hopes and unfulfilled expectations. For some the symbol of their disappointment came quickly in the guise of a new constitution whose construction seemed designed to maintain the power and privileges of the prerevolutionary regime. For others this same document shifted power ominously to groups within the society long identified with hostility toward liberal democratic precepts, a view vindicated when the new president who embodied the agenda of these groups wasted little time in governing illiberally. His removal left Egyptians anticipating the drafting of yet another constitution, but given that the next round of constitution making was to be directed and administered by the ruling military, confidence in the quality of the resulting product could hardly be at a very high level. That it will not be the same constitution as its predecessor is certain, even differing in substantial respects from it; nevertheless, a pervasive sense that not much will change as a result of its adoption has set in, even as the events associated with the dislocations of the revolution and its extended aftermath are credited with changing the political landscape and dynamic of the Middle East.

By the metrics of the standard instance, Egypt experienced both a revolution and a constitutional revolution.Footnote ¹⁵ But was it anything more than a nominal constitutional revolution? That a revolution occurred in 2011 is not in doubt, nor is there doubt that the revolutionaries had as one of their principal goals the replacement of the old regime’s constitution. Still, did a constitutional revolution actually take place? The linkage between revolution and constitution was noted in the preamble of the first replacement constitution, which declared that the Egyptian people are “determined to achieve the objectives of their peaceful revolution.” The body of the document, consisting of 236 articles, established the framework and guiding principles through which these revolutionary objectives were presumably to be achieved. But as the deep divisions over the drafting process glaringly revealed, there were substantial disagreements concerning the substance of the objectives to which the people were committed. In addition to a deficiency of common purpose about matters central to constitutional identity, striking resemblances between the new constitution and its 1971 predecessor were difficult to miss, notably Article 2, which affirmed that the “Principles of Islamic Sharia are the principal source of legislation.” So if constitutional continuity is extensive with respect to both critical provisions in the document itself and the weaknesses attributed to it by long-standing rivals embracing contrasting understandings of the revolution’s meaning, what basis is there for comprehending these constitutional developments in revolutionary terms?

The revolutionary repudiation of the constitutional order of the immediate past, followed by the drafting of a new constitution by a constituent assembly, may satisfy the minimal conceptual criteria associated with such transitional sequences of events, but the absence of a clearly defined and profoundly felt directional shift in constitutional orientation fails to meet the more rigorous requirements of the substantive model of the constitutional revolution. However, that model presumes the tentativeness of any initial judgments since the confirmation of a paradigmatic displacement requires a retrospective judgment at a distance from the initial rupture in constitutional continuity. Had, for example, the Muslim Brotherhood and President Muhammad Morsi succeeded in establishing a constitutional theocracy on the basis of “credible sources accepted in Sunni doctrines” (Art. 219), then it would be easier to affirm the achievement of a genuine constitutional revolution; thus, the paradigmatic change in the experience of constitutionalism in Egypt would have been decisive—if for many also deeply disheartening—in rendering a judgment on the nature of the transformation.

The overreaching of Morsi and the Muslim Brotherhood prevented that from happening, and the subsequent assertion of authoritarian military rule nullified any possibility that constitutional import could be associated with the revolutionary transformation of 2 years earlier. The revolutionary “moment” initiated a new round of contestation amid the surroundings of a fundamentally altered political and legal environment. “Modern Egypt has long been torn between multiple and at times even contradictory identities; … above all [tensions between] secularism and religiosity have characterized the country for at least forty years” (Hirschl Reference Hirschl2010, 105). The freshly minted constitutional text offered one side of this contested terrain an advantage in translating the political revolution into a constitutional revolution of a certain stripe. The latter did not occur, but the same interests that disputed the legitimacy of the first constitution-making process will continue in the pursuit of their preferred constitutional vision. If they succeed—something that, if it should happen, must await the interactions on multiple levels of political, cultural, and economic forces representing long-standing disharmonies within the polity—then the illusory or nominal variant will likely reemerge as an authentic realization of the constitutional revolution.

Radical changes may yet be in store for that nation; typically, extended periods of time are required to assess the fallout from major ruptures in political continuity. As we will see, the abruptness of a break in political continuity is not incompatible with subsequent incremental change. But now consider a very different case—South Africa—that experienced “a revolution … but one achieved constitutionally, in the sense that the previous constitutional disposition was turned on its head, and … the content of the new dispensation differed radically from the previous one” (Ackermann 2004, 646). Here too questions remain about just how much the lives of South Africans have changed as a result of this new dispensation, yet that the Constitution, the oft-referred-to “birth certificate of a nation,” has fundamentally elevated prospects for significant and far-reaching change is not seriously contested. As was proudly asserted by one of the justices in an early and important case for the new South African Supreme Court, “Viewed in context, textually and historically, the fundamental rights and freedoms have a poignancy and depth of meaning not echoed in any other national constitution” (DuPlessis v. DeKlerk, 3 SA 850 [1996]).

How better to capture the essence of this momentous development than by recognizing it as a constitutional revolution? But we can do so only with a modification of the first definition, a revision that requires distancing the concept from the semantic fields that had earlier figured so prominently in its derivation. With the assistance of a clearer distinction between the general concept of revolution and its more particular constitutional variant, we can derive a more inclusive definition that will incorporate some constitutional narratives that fit the standard revolutionary criteria but also others that would be excluded (e.g., South Africa). Accordingly, a constitutional revolution can be said to exist when we are confronted with a paradigmatic displacement, however achieved, in the conceptual prism through which constitutionalism is experienced in a given polity. This leaves open the possibility that a revolutionary displacement could develop within the constraints of legality, although establishing whether those constraints have actually been respected will almost certainly be contested. While such an occurrence would not conform to the contra-constitutional criterion previously stipulated, any illegally established postrevolutionary constitutional order that was acceptable as a constitutional revolution under the first definition would qualify under the second as long as the novelty of that order was distinguished by the required paradigmatic shift in content. Thus, the innovation of a constitutional revolution lies as much in how a polity refocuses its constitutional vision than in how it has repudiated its past. As Andreas Kalyvas (2008, 7) asks, “Why do radical political changes need to be associated with ruptures, disruptions, and discontinuity?”

A. United States 1787

The extent to which innovations in constitutional practice and orientation will ultimately be seen as having vindicated their most visionary advocates may be decisively affected by their very ordinariness. Thus, a presumption of radical change does not readily attach to those shifts that stem from the regularity of prescribed process. Rather, when things go off constitutional course we are more likely to judge the results as potentially far-reaching and path breaking, for better or worse. People rely on constitutions to order change. Such reliance can mean one of two things—or both. In the first meaning, the rules and principles that make up a constitution’s content are used to influence the character of the changes that occur within a society committed to the rule of law. If the constitution is working well, then changes that flow from the choices made by individuals, groups, and institutions will be orderly, which is to say in conformity with the procedures set out in the governing document. In the second meaning, the constitution is committed to ensuring not only that change occur in an orderly legal manner but that the substance of the changes is compatible with the document’s essential commitments. Thus, constitutions may be viewed as instruments to order change in the sense of prescribing both type and degree of transformation in accordance with directives enshrined in key textual provisions.

The change that resulted in the adoption of the Constitution of 1787 was famously not achieved in compliance with the text of the Articles of Confederation. “The very convening of the convention may be considered as a ‘de-constituent’ step, on the verge of a legal revolution” (Klein and Sajo 2012, 426).Footnote ²⁶ That the Constitutional Convention was acting illegally in effectively replacing the articles with a new charter is less interesting, however, than the question of exactly what was wrought by the change. It is a question most intriguingly raised by James Madison in his defense of the convention’s dubiously sanctioned transformative undertaking. In Federalist 40, he posed the question in a way that speaks directly to our concern in this article, as he focused on “the boundary between authorized and usurped innovations; between that degree of change which lies within the compass of alterations and further provisions, and that which amounts to a transmutation of government” (Lodge 1888). In other words, did a constitutional revolution just occur?

Madison’s response is revealing in terms of the conceptual distinctions set out earlier. While conceding that the alterations made in Philadelphia were “irregular,” that they were “instituted by some informal and unauthorized propositions,” he maintains that the changes, “substantial” though they were, amounted to an “expansion of principles which are found in the articles of confederation.” Still, we are quickly informed that such faithful adherence to the core commitments of the earlier document is perhaps more consequential than this purported exercise in continuity might suggest. “The misfortune under the [articles] has been, that these principles are so feeble as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old” (Lodge 1888).Footnote ²⁷ Had the Constitution emerged more in line with Anti-Federalist thinking, it too would have been seen as falling within the constitutional tradition of the colonial period. But it would not have bequeathed to Americans a constitutional solution that, in its contribution to political science, was truly original in concept and scope.

What are we to make of this “degree of enlargement” that has an “aspect of an entire transformation of the old”? If it is simply a course correction (“correcting the errors” of the articles), then in what sense, if at all, can the move from the document drafted by the Continental Congress to the one later framed by the Constitutional Convention be construed as revolutionary? If the “fundamental principles of the Confederation” were, as Madison (Federalist 40) took pains to point out, “not within the purview of the convention,” then how can one describe the work of that body as anything other than, well, conventional?

Reflecting further on the second meaning of constitutionally ordered change best addresses the conundrum. Whereas the first connotation assumes a well-functioning constitution that contemplates rigid compliance with the legal forms—including procedures for amendment—prescribed in the document, the second envisions the possibility of malfunction, a condition that exists when constitutional forms fail to advance the substance of the constitution’s animating principles. When this occurs we might say that the disjuncture between form and substance is evidence for the absence of constitutional order, which Madison could invoke as justification for “informal and unauthorized” actions to secure the harmony between form and substance that our aspiration for a just constitutional settlement requires. Indeed, that is exactly what he does in arguing, with specific reference to the most revolutionary of passages in the Declaration of Independence, “that in all great changes of established governments, form ought to give way to substance” (Federalist 40).

The mention of that revolutionary document is critically important. Recall the two definitions of the constitutional revolution presented earlier, the first of which—any illegally established postrevolutionary constitutional order—is surely applicable to the ratification of America’s first charter in 1781. The second more inclusive construction focused on the substance and outcome of a constitutional displacement—however achieved—that leaves the experience of constitutionalism in a very different place from where it had previously been. In this account, rupture and discontinuity are not defining criteria for establishing the presence of a constitutional revolution. The sort of revolutionary displacement involved under this second heading originates and develops within the domain of legality, although it may reach its destination only after a controversial passage through questionable extralegal terrain. Madison’s insistence on the principled continuity of the first constitution and its 1787 replacement provides both efforts with a common source of revolutionary inspiration; his defense of the irregularity of the movement from one to the other does not contradict his belief that only with the proposed changes can the revolutionary promise of the rupture from British rule effectively be realized.

Indeed, Madison’s emphasis on continuity speaks to a larger point. In his discussion of Arendt’s views on revolution, Kalyvas (2008, 227) notes in connection with the break with colonial governance that “the American revolutionaries were able to avoid the language and practice of absolute ruptures,” relying “on a pre-existing legal layer … which remained intact during the entire period of political foundation.” Also, “By refusing to eliminate them, the American revolutionaries remained within the law even during such exceptional moments” (227). If we take the entire period of foundation to include both constitutional framings, then Madison’s argument in Federalist 40 may be seen to contain a deeper significance for theorizing the constitutional revolution. Thus, the “course correction” of 1787 represents a familiar example of constitutional identity formation in which a divided legacy serves as a continuing resource for those seeking major change in the workings of the constitutional order (Jacobsohn 2010). A fundamental, even radical, departure in a nation’s constitutional way of doing things may be presented as an effort to revive a superior approach, one previously displaced in the vortex of political contestation. Or put another way, Madison was engaged in an activity essential to the success of constitutional revolutions, particularly of the second type: enhancement of the outcome’s legitimacy by insisting on its restorative intent.Footnote ²⁸

B. Ireland 1937

Article I states: “The German Reich is a republic. State authority derives from the people.” The numerous flaws in the ill-fated Weimar Constitution should not diminish the significance of this revolutionary affirmation. As the first German constitution to embody the principle of popular sovereignty, the document occupies a unique place in the history of constitutionalism. As a constitutional revolution, however, there was nothing unique in the manner of this new republic’s emergence: the 1918 overthrow of the imperial structures of the Bismarckian state was a direct by-product of the outcome of a war.

Yet its significance has been famously diminished. Thus, another by-product of the 1918 German Revolution was the “jurisprudence of crisis” (Jacobson and Schlink 2000), and it has provided legal scholars of the 20th century with a treasure trove of philosophical reflection on law and the state. At the center of this jurisprudential effusion was Carl Schmitt, whose critique of Weimar constitutionalism is also worth considering in relation to other countries, for example, Ireland, where a contemporaneous constitutional transformation was an outgrowth of the same war. Seen in the light of Schmitt’s critique, the Irish case can help address one of the more vexing conceptual challenges of constitutional revolution theorizing, the problem of rupture and continuity.

Schmitt (1928/2000, 294) called into question the revolutionary importance of the 1918 revolution. “The new German Reich is a constitutional democracy. It has a constitution, just as it had a constitution under the monarchy; here, in the ‘constitutional,’ lies an essential continuity linking today’s Reich with the old Reich of 1871. … There is no break, no revolution in the strict legal sense between the old and the new form of state. A constitutional democracy replaced a constitutional monarchy. The German Reich is not simply a democracy but a constitutional democracy.”Footnote ²⁹ What is more, through the Versailles Treaty the integrity of the nation had been badly compromised, rendering what the regime’s champions trumpeted as their crowning accomplishment—popular sovereignty—a hollow achievement. “The Reich has not gained complete sovereignty, and this lack of political substance would relativize the importance of any constitution” (295).

Schmitt’s argument serves as a skeptical rejoinder to the classical model of the constitutional revolution, which was easily identifiable as a new constitutional order that succeeded the forceful removal of a previous order. What, however, was presented as straightforward is, in Schmitt’s account, subject to two objections: (1) Revolutionary political change (i.e., illegal, violent upheaval that produces a substitution of one form of government for another) is not a prelude to constitutional revolution absent a break in continuity that culminates in an authentic expression of popular sovereignty. (2) To the extent that internal constitutional transformation is shaped by the exertion of political power external to the sovereign will of the nation, it diminishes the constitutional significance of even postrevolutionary new beginnings.

Now consider Ireland, which has a story that in its two-stage developmental progression (spanning 15 years) recalls the American case (spanning 11 years) and in its entanglement with an intrusive foreign power evokes the Japanese experience. The Constitution of the Irish Free State was adopted in 1922 after a sequence of events that included a bloody conflict with Great Britain that culminated in the Anglo-Irish Treaty establishing dominion status for the newly independent state and a division among Irish political leaders over the acceptance of the treaty that would lead to a civil war, the conclusion of which in 1923 failed to end the debate over the legitimacy of the new constitutional creation. Despite a number of amendments in the following years reducing the formal dependency of the Irish on the British, a government formed in 1932 under the leadership of Eamon de Valera was determined to replace the Free State Constitution with a new document that would officially end all treaty ties and establish a constitutional republic. This goal was achieved in 1937 after a draft constitution was adopted by a referendum, a development described by one of Ireland’s leading constitutional commentators as “a break in legal continuity; … a supplementing of one Grundnorm (albeit a disputed one) by another; and thus, legally speaking … a revolution” (Hogan and Whyte 2003, 51).

There are two ways in which the Irish developments of 1937 can be depicted as a constitutional revolution, and both display conceptually significant similarities to the American case. Recall Madison’s claim that the changes wrought by the Constitutional Convention represented an “expansion of principles which are found in the articles of confederation.” The new constitution was not so much a rejection of the old as it was its fulfillment or completion, an occasion for correcting the earlier failure to align the form and substance of the effort’s animating principles. It was an exercise in continuity that was also revolutionary in a constitutional sense because it provided closure to the regime reordering initiated previously.Footnote ³⁰ Also, the irregularity of the major course correction—its questionable legality—provided the second constitutional moment with a measure of radical separation that one expects to see in a revolutionary scenario. The coupling of rupture and continuity may seem paradoxical, but it is a familiar conceptual association for the sort of constitutional change with which we are concerned.

An important assessment of the Irish Free State Constitution published 10 years after its adoption described the achievement as an “essentially republican constitution” that embodied the “theoretical postulates of a revolutionary upheaval” more than the “legislative crystallization of an organic development” (Kohn 1932, 80). More recently it was said of the 1922 constitution that it “followed the rituals of a new beginning, but there was no constitutional moment.” There was no “radical change, [i]nstead, the Free State’s constitutional order was gradually reduced to the basic structure of the Westminster system” (Kissane 2011, 55). That same analysis identified the 1937 developments as a “constitutional revolution,” one, however, manifesting “substantial continuity” with important commitments from 1922, namely, to “personal rights, religious freedom, and an independent judiciary” (62). Notably it did not include as a continuing commitment what the earlier account had emphasized, “the principle of the sovereignty of the people as the fundamental and the exclusive source of all political authority” (Kohn 1932, 80).Footnote ³¹

As in the American case, the question raised by these differing perspectives is one of form and substance played out in an extended transformational progression spanning two major ruptures in constitutional continuity. In each instance the first break followed a violent struggle to secure independence from Great Britain, resulting in complete success for the Americans and partial success for the Irish, the latter being unable to obtain autonomy over the framing and adoption of their new constitution. In each instance, too, the initial effort was the occasion for deep partisan division over the direction of the new constitutional undertaking that led eventually to a second break, which in turn enabled a subsequent group of framers to attempt to redeem the revolutionary promise of their predecessors. “The American Constitution,” Hannah Arendt (1977, 145) wrote, “finally consolidated the power of the Revolution.” Similarly, “the purpose [behind the Irish Constitution of 1937] was to consolidate rather than to experiment and start anew” (Kissane 2011, 57).

If the redemptive effort at the second transformational moment is successful—as it was in both countries—then it becomes necessary to belabor the point that a revolution is a process, not an event or “moment.” The extended Irish layout underscores a reality that can easily be obscured in the more concentrated form in which constitutional revolutions often present themselves. This in turn should inform the rejoinder to Schmitt’s argument, which, insistent on a radical break in constitutional continuity as the basis for revolutionary validation, can easily, through a too narrowly focused appraisal of the initial displacement, lead to a misreading of the resulting protracted rollout of change. The transition to popular will as the legitimate source of sovereign authority is not likely to occur abruptly, and in some cases it may require an extended conversion period. To the extent that such is required, this will also diminish the force and appeal of Schmitt’s second objection since the presence of external sovereign intervention in the substitution of one title to rule for another may now just as easily be viewed as a necessary stage in the changeover that culminates in genuine transformation as it may the fatal subversion of a people’s aspiration for a more just popular regime.

Depicting the adoption through a plebiscite of the 1937 constitution as a constitutional revolution relies on the commonly held illegal framing of the document outside the scope of extant authority and, of course, on the severance of the remaining Free State impediments to the expression of an authentic popular sovereign will. These achievements are themselves not severable since the Constituent Assembly that enacted the Free State Constitution expressly denied to the legislature the power to amend the document contrary to the treaty between Great Britain and Ireland. Eamon de Valera, the prime mover behind the new constitution, in fact bypassed the legislature (which was relegated to a pro forma role in the process) and the Constituent Assembly; in light of the existing constitution’s provisions, the irregularity of the process was blatant—and deliberately so. Still, an alternative understanding holds that “the authority of the Constituent Assembly which enacted the Constitution of 1922 itself derived from the people … and so the enactment by the people of the Constitution of 1937, whilst in breach of the Constituent Act, maintained the same legitimation as that Act” (Phelan 1997, 358).

This latter effort to salvage a legally sanctioned constitutional rewrite, although surely strained, nevertheless helps clarify the constitutional revolution question in Ireland and the question more generally. According to this view, a “legal revolution” occurred in 1937, as also happened in 1922, which saw “a legal revolution based on popular sovereignty.”Footnote ³² However important the dispute among Irish historians regarding the legalities of the 1937 constitution, more important here is the eminently plausible characterization—also of course in dispute (i.e., a civil war was fought over it)—of the earlier source of constitutional authority as having been popularly grounded. As pointed out previously, agreement on whether a revolutionary displacement has occurred within the constraints of legality will typically be difficult to achieve. Critical, though, is whether the displacement, however achieved, is of paradigmatic significance for the way constitutionalism is henceforth experienced. Undoubtedly the incorporation of the Anglo-Irish Treaty within the terms of the 1922 constitution compromised the sovereign integrity of the new venture.Footnote ³³ Still, to deny that the securing of independence from a regime famously known for its institutionally based locus of sovereign authority, and the subsequent adoption by a Constituent Assembly of a document explicitly committed to the principle of popular sovereignty, was a signal achievement in radical constitutional transformation is a very difficult argument to sustain.

As more material has become available concerning the drafting of the 1937 constitution, we learn that de Valera’s purpose in submitting the document for approval in a plebiscite was to highlight the new republic’s fresh start; doing so in this manner would give vivid symbolism to its principal and long-delayed substantive achievement: popular sovereignty. But we also learn that the de Valera–led group who wrote the constitution was a rather small secretive cohort of political and religious activists whose efforts in popular constitution making arguably are less notable in this regard than the earlier labors of members of the Constituent Assembly (in concert with the British) who framed the Free State Constitution. Much like the Weimar Constitution, also a Constituent Assembly creation, the 1922 charter was not presented to a popular referendum. Because of the problems of legitimacy associated with constituent assemblies and their ex nihilo creations, over the course of the century referrals to the people increasingly came to be seen as critical for achieving credibility and support among affected populations. Looking, then, at the 15-year Irish progression from constitution to constitution as a cumulative constitutional revolution, the plebiscitary end point represents symbolic closure on a process that commenced with a substantially compromised expression of a nation’s pouvoir constituant.

If Bunreacht Na hÉireann (the 1937 constitution) concluded the extended revolutionary progression that anchored Irish constitutionalism in a fundamentally transformed state, it also consolidated another defining commitment that ensured a continuing struggle for the meaning of the postrupture settlement. Exceedingly muted in the Free State Constitution, the replacement document boldly featured natural law as a limiting principle on the expression of the popular will.Footnote ³⁴ It has been correctly said that everything “worthwhile in the Irish Free State Constitution of 1922 received renewed expression in Bunreacht Na hEireann, 1937” (Murphy 1998, 27); in invoking as prominently as it does some signal precepts from Catholic natural law, the republican constitution invested in an act of recovery from a tradition that long antedated the much more recent celebration of popular sovereignty. As de Valera explained, “Since the coming of St. Patrick, fifteen hundred years ago, Ireland has been a Christian and Catholic nation. … She remains a Catholic nation.”Footnote ³⁵

A constitutional identity is an evolving phenomenon rooted in a disharmony often manifest in the tension between commitments expressive of a nation’s past (e.g., Ireland’s Catholic tradition) and the determination of those who seek to transcend or modify it—in Ireland, through the trumping power of popular sovereign authority. When it happens, a constitutional revolution is a hinge moment in the development of this identity. The elevation of Thomistic natural law to a position of constitutional prominence is not only a distinctive part of Ireland’s constitutional revolution, but in its restorative aspect it speaks to a thread of historic continuity that is a staple of such occurrences. Together and to varying degrees, rupture and continuity are the yin and yang of constitutional revolutions. Those, like Schmitt, who insist only on a decisive break with the past to authenticate the presence of a revolutionary passage may be asking for more than the constitutional variant of such change can bear. Or perhaps they are implicitly, if mistakenly, making another point, that there is no such thing as a constitutional revolution.Footnote ³⁶