Insider Constitutionalism

Constitutions also emerge from a very different pathway. In this second ideal type, the political order is constructed by pragmatic insiders, not revolutionary outsiders. When confronting popular movements for fundamental change, the insider establishment responds with strategic concessions that split the outsiders into moderate and radical camps. When this strategy works, the insiders reinvigorate their authority by enacting landmark reform legislation that invites ‘sensible’ outsider groups to desert their more radical brethren and join the political establishment to govern the country.

Great Britain provides a paradigmatic example. During the Napoleonic Wars, its governing elite repudiated revolution as a model for legitimate change. But over the next generation, the establishment reached out to ‘sensible’ outsiders by enacting the Reform Act of 1832. This set the stage for further acts of strategic concession at later moments of popular confrontation. During the twentieth century, perhaps the most salient example was the Parliament Act of 1911, which legitimated the politics of redistribution characteristic of the modern welfare state.

Such landmarks represent fundamental elements of the British constitution, but they lack ringing statements of principle comparable to those found, say, in the South African Bill of Rights. Nor were they adopted in the name of a mobilized movement for a revolutionary redefinition of political identity. They emerge instead as strategic concessions adopted through the pragmatic adaptation of pre-existing lawmaking institutions.Footnote ³

These great reform statutes seem so different from revolutionary constitutions that scholars often deny that the British have a Constitution at all. This claim might make sense if ‘constitutionalism’ were a label designating a ‘one-size-fits-all’ model of legitimation. But this is precisely what I want to deny. Countries travelling down the insider track do indeed place great value on achievements like the Parliament Act. As later generations are socialized into the governing elite, they are trained to use these precedents of responsible government as reference points for legitimate action when confronting the populist challenges of their own time.

Britain’s relative success in the art of pragmatic adaptation has influenced many parts of the Commonwealth – most notably Australia, Canada and New Zealand – which share a disdain for abstract constitutional principles and emphasize the importance of prudent adaptation.

Elite Constructions

Both ideal types emerge out of high-pitched struggles, but generate different outcomes. Under the insider scenario, the political establishment makes strategic concessions that undermine outsider momentum; under the outsider scenario, the establishment fails in its attempts at repression or co-optation and is overwhelmed by the revolutionary constitutional order.

But regime change sometimes occurs without the pressure of a massive popular uprising, and this requires us to add a third ideal type: elitist constitutionalism. Under this scenario, the old system of government begins to unravel but the general population stays on the sidelines in relative passivity. The emerging power vacuum is filled instead by previously excluded political and social elites, who serve as a principal force in the creation of a new constitutional order.

Sometimes the new elite constitution allows the old elites to retain a significant share of power, and sometimes it doesn’t. But whatever the particularities, the key point is that the new regime is an elite construction, not a revolutionary creation.

Elite constructions are also distinguishable from insider constitutions. Under the insider scenario, the political establishment remains in control of the situation – making strategic concessions that take the wind out of the sails of the insurgent movement. In the third model, the existing regime is experiencing such a severe crisis that political insiders can only hope to retain a share of power by making an elaborate compact with outside elites.

This insider-outsider deal generates a constitution that looks very different from the pragmatic reform statutes that serve as precedents of responsible government in the insider model. The constitution emerging from the third pathway is typically an elaborate document in which both sides define, and commit themselves to, the new rules of the game.

In developing these texts, the protagonists may often borrow heavily from provisions originating elsewhere – often from constitutions that have previously emerged from the revolutionary pathway. Following these models, elite constructions will typically claim to speak in the name of the People. Despite such lofty appeals to the pouvoir constituant, however, their constitutions have not in fact been propelled into existence by any comparable revolutionary movement.

Spain provides a revealing example. Franco’s death propelled the Falangist regime into a succession crisis. Haunted by memories of the Spanish Civil War, moderates led by King Juan Carlos pre-empted another revolutionary upheaval by reaching an accommodation with Franco’s bitterest enemies. Resisting hard-line pressures, the young king appointed Adolfo Suarez prime minister, who reached out to bitter opponents – most notably Santiago Carillo, leader of the illegal Communist Party. With the support of the army chief of staff and the leader of the Spanish Church, Suarez prevailed upon the Falangist legislature to pass a Law for Political Reform, setting the stage for free elections that included the Communists. When the electorate gave left and right extremists low levels of support, moderates were in a position to elaborate a democratic constitution, which was overwhelmingly approved by the voters in a referendum.

These votes were important, but they should not be confused with the kind of mass mobilization that serves as the primary engine of revolutionary constitutionalism. It was instead the decisive action by the king, who thwarted a military coup against the elected government in 1981, that began the generation-long process of constitutional consolidation.Footnote ⁴

I emphasize this point because elite constructions confront very different legitimation problems from those emerging from the first two ideal types. Our next job is to diagnose these differences.

Constitutionalizing Charisma

For present purposes, it must suffice to sketch two fundamental aspects of the constitutional dynamic: one political, the other legal.

Let’s begin with the political. During its first generation, the constitution reinforces the legitimacy of revolutionary leaders who initially gained power only after making great personal sacrifices – spending years in prison or exile before triumphing over the old regime. As this generation dies off, it is replaced by lots of opportunists who see the old revolutionary parties as springboards to power. These aging movement parties may also attract second-generation activists seeking to reinvigorate old ideals. But even they can’t claim the charismatic authority earned by their predecessors.

After all, the first generation didn’t just talk revolution; they actually won the struggle. But the second generation can’t make a similar claim. Except in extraordinary circumstances, political authority moves in the direction of the normalization of revolutionary politics.

The opposite is true among the lawyers, and other professionals, who seek to interpret the enduring meaning of the constitution. During the first generation, these professionals are all too aware that the revolutionary text is a strange legal creature, which they haven’t yet domesticated through decades of disciplined argument. This predisposes them to avoid sharp confrontations with the charismatic leaders who stand at the helm of the republic. Nevertheless, their tentative legal interpretations lay the foundation for succeeding generations, who increasingly view constitutional law as an established part of their professional repertoire.

As an increasingly confident judiciary confronts an increasingly normalized political system, the two sides engage in an intensive struggle over competing claims to serve as the ultimate guardian of the revolutionary constitutional inheritance. These struggles take very different forms in different places.

But for now, it is enough to emphasize one key point: these political-legal struggles for supremacy are categorically different from those arising in polities that are travelling down the other two paths to legitimacy.

Elitist Problematics

Consider the insider paradigm of responsible government. Within this framework, it makes no sense for constitutional courts to assert guardianship of the revolutionary principles established by the founding text – since the very idea that the people can speak during moments of revolutionary upheaval is treated as populist claptrap.

The proper role of courts is understood very differently. Rather than preserving the People’s will against the depredations of political opportunists, the judges offer themselves as useful collaborators in clarifying the evolving tradition of elite rule – proposing insightful ways of modifying historical precedents in light of current challenges. This collaborative path is precisely the one that courts have pursued in Britain and other Commonwealth countries over the past half-century.Footnote ⁶

Insider regimes also confront different challenges to their ongoing authority. In contrast to their revolutionary counterparts, the threat isn’t party dictatorship. It is the gradual erosion of the public’s confidence in the elite’s capacity for statesmanship – with grass-roots movements gaining increasing success in portraying the establishment as blundering snobs who are unworthy of respect. The recent rise of referenda in Britain and the Commonwealth may well be a danger signal in this regard.

Let’s move onward to consider the distinctive problems confronting our third ideal type. For starters, elite constructions lack the legitimation resources provided by either of the preceding paradigms. On the one hand, they can’t point to the broad popular legitimacy earned by revolutionary constitutionalism; on the other, they lack the long history of successful statecraft through which an established elite gains popular respect. How, then, is the elitist constitution to establish its authority to the broader population?

With difficulty.

Call it the authenticity problem. We see it on display in Spain today. Despite its relatively good performance over the past generation, the post-Franco constitution has failed to convince many Basques and Catalans of its legitimacy – generating the current conflict between Madrid and Barcelona over the terms of a referendum for Catalan independence.

There is a broad analogy between this stand-off and the recent confrontation between Westminster and Scotland, which also revolved around a vote on national independence. But the legal form of the referendum has very different meanings within different ideal types. The British establishment characteristically muddled its way to a compromise, which permitted the referendum to proceed to a No vote on independence.

The Madrid government, with the support of the constitutional court, insists that the very effort to hold a referendum is unconstitutional. The Catalan regime has responded by announcing plans to hold an ‘informal’ – aka illegal – referendum on its own authority. If this results in a Yes vote, will the government in Barcelona use it as a sign that the mobilized People of Cataluna demand a revolutionary breakthrough to a new constitutional identity?

The current confrontation on the peninsula only serves to introduce the authenticity problems confronting other elite constructions. At least the Spanish constitution was written by indigenous elites. In contrast, those of post-war Germany and Japan were constructed under military occupation by the Allies; moreover, these elite constitutions were adopted without any effort to obtain the consent of ordinary voters in a referendum. In such cases, why should the general public respect their legitimacy after the military occupation comes to an end?

Sometimes, this question has no answer. Consider the collapse of the constitutions of occupied Iraq and Afghanistan as the military occupations come to an end.

Sometimes the question only arises after a long period of quiescence. Consider today’s Japan – where the Abe government is challenging the Peace Article of the constitution imposed by General MacArthur after the war. If Abe succeeds, this will be the opening salvo in his larger campaign for a sweeping repudiation of the MacArthur constitution as an inauthentic expression of Japanese values.Footnote ⁷

Which leads to an obvious question: How has Germany avoided a similar reckoning with its Basic Law?

The role of the Allied occupation wasn’t as overwhelming as in Japan. But it was still very significant, beginning with the conditions laid down by Britain, France and the United States in the London Protocol.

Two of the protocol’s key demands were, first, that the Parliamentary Council draft a document called a constitution and, second, that the council submit its proposal to the German people for approval in a referendum. The precise point of these demands was to safeguard the constitution against later charges of inauthenticity.

The London Protocol was addressed to the leaders of the newly created governments in each of the occupied zones. But the rising West German political elite rejected these demands. To emphasize its provisional character, they called their initiative a ‘Basic Law’ instead of a constitution. Indeed, the Final Article of their document proclaimed that a truly authentic constitution could be promulgated only when the citizens of the East joined the Westerners at a new Constituent Assembly.

They also defied the Allies by refusing to submit their Basic Law to a referendum because: (1) it might have lost in Bavaria, (2) Hitler had degraded such Volkish appeals and (3) they feared that it would legitimate a parallel Soviet effort to construct a constitution for East Germany.Footnote ⁸

These acts of defiance had a profound impact. As Donald Kommers explains, ‘Opinion polls showed that…a majority of the respondents were not even aware of the Parliamentary Council’s existence. In May of 1949, a survey found that two-thirds of them were not sure what the Basic Law was…West German voters were denied the chance to approve the constitution, depriving them of the knowledge they might have gained…had a popular campaign for ratification taken place’.Footnote ⁹

Within this context, the Basic Law’s famous ‘eternity clauses’ have a very curious ring. What does it mean for an emphatically provisional document to proclaim the ‘eternal value’ of human dignity? What does it mean for it to proclaim ‘democracy’ as an eternal value when its proponents refuse to submit the Basic Law to a vote?

The authenticity problem arose once again in 1989. With East German demonstrators chanting Wir Sind das Volk, the vice president of the West German Constitutional Court, Ernst Gottfried Mahrenholz, insisted that the government was under a high obligation to convene a Constituent Assembly of the entire German people to hammer out a true constitution.Footnote ¹⁰ While Mahrenholz presented the case most persuasively, many others made similar demands to redeem the Final Article and transform the Basic Law into a constitution through an authoritative act of popular sovereignty.

Helmut Kohl, however, was not among them. The last thing he wanted was a lot of East German Communists and West German leftists entering a Constituent Assembly to challenge the legitimacy of his government. He refused to heed the Final Article, and engineered reunification through one of the most curious international agreements in legal history. A standard treaty is negotiated by sovereign states to regulate future relationships with one another. But the Reunification Treaty extinguished the existence of the DDR at the very moment it signed the agreement.

Yet a quarter century later, Germany has managed to forget the fact that, in both 1949 and 1989, its political elite refused to place the constitution before the voters for their considered judgement.

How to account for this act of collective amnesia?Footnote ¹¹

During the 1950s and 1960s, it was the economic miracle, not the Basic Law, which played the central role in legitimating the rise of the Federal Republic from the ashes of the Nazi catastrophe. If there was a single pre-eminent symbol of the New Germany during this period, it was the deutsche mark, not the ‘eternity clauses’. But over time, the German Constitutional Court successfully made the Basic Law into a central element of political identity – to the point that the replacement of the mark by the euro in the 1990s could occur without the national trauma that would have accompanied a similar displacement in the 1960s.

But once again, the court’s role in Germany was very different from those played by judiciaries emerging out of the previous two scenarios. It did not root the Basic Law in the revolutionary achievements of the constitutional past, since there weren’t any. Nor did it engage in a modest collaborative enterprise with the established political branches, as in Great Britain and the Commonwealth. Instead, the court projected itself into the public space as the pre-eminent guardian of the new Germany’s foundational commitments to fundamental rights and Enlightenment values. Of course, the way the court has gained public acceptance for its claim to constitutional supremacy is a complicated matter, which deserves sustained discussion.Footnote ¹²

But for now, let’s stand back and return to the larger implications of my claim that there are three, not one, distinct paths to ‘constitutionalism’. To drive this point home, consider how my trinitarian view adds up to a special trilemma for the European Union (EU) at its present moment of vulnerability.