Telos 189 (Winter 2019), a special issue on Constitutional Theory as Cultural Problem, edited by Xudong Zhang and David Pan, is now available for purchase in our store. Individual subscriptions to Telos are also available in both print and online formats.
The challenges faced by the liberal democratic model of government in the twenty-first century have made constitutional theory into an urgent topic of global concern. Both the second Iraq war and the revolutions of the Arab Spring frustrated hopes of an easy global trajectory toward liberal democracy. If there was the hope that liberation would mean the establishment of liberal constitutional norms, the result has been that emancipation from tyranny does not naturally lead in a particular political direction. Meanwhile, established liberal democracies, from the United States to Europe to India, are facing upheavals that have prompted many to question the stability of the model itself, leading to the need to revise a constitutional theory that up to now has been built around the liberal democratic model. While the constitutional state, as theory and practice in modern Europe, North America, and Asia, continues to be the common point of reference, its stability and legitimacy can no longer be taken for granted, thus requiring renewed thinking about its history and cultural foundations.
At the same time, the shift of economic and productive centers of gravity from the West to other parts of the world comes not only with a whole range of issues regarding geopolitics, international relations, and security but also with a new sense of urgency to study different state forms, forms of sovereignty, notions of democracy and freedom, and political legitimacy as they are rooted in and informed by long-standing social and cultural norms. An understanding of these norms not as remnants of what has been rendered obsolete and backward by modernity and postmodernity, but as vital processes that foster new ideas and drive change, requires concerted efforts at interpreting them—as texts, as theory, and as practice—both sympathetically and critically. By placing them under the sharp focus of constitutional theory and theories of sovereignty, this issue of Telos seeks to promote a sustained dialogue between scholars and thinkers from both the West and the non-Western world in an area defined by the intersection between critical theory and political philosophy.
Such analysis requires an interdisciplinary approach, in which not just legal and political questions but also rhetorical issues of political representation and legitimacy are recognized as essential to the problem. If a constitution presents a people’s self-understanding of its political identity, this identity is not a naturally occurring structure but the result of literary, cultural, and theological processes that follow a representational logic. Recent failed attempts at constitution building, for instance, in Africa, the Middle East, and the former Soviet bloc, have shown that the interaction between law and representation is perhaps the key consideration in determining the success or failure of a particular constitutional structure. Consequently, an adequate constitutional theory must include scholars in diverse fields, such as law, political science, literature, philosophy, and theology.
This new look at both constitutional theory and the way in which constitutions relate to notions of popular sovereignty and political representation is in one sense a response to revolutions in North Africa and the Middle East as well as experimentation with new forms of political order in the European Union and the former Soviet bloc. The faltering stability of the European Union as a political order, for instance, indicates that its constitutional arrangements are perhaps inadequate to its situation. What are the alternatives, and how do these alternatives relate to popular conceptions of what Europe means? Other areas such as China, Cuba, and North Korea, though presently stable, would also benefit from an analysis of constitutional theory that could provide avenues for reform while avoiding the dangers of revolutionary change. Does the recent restriction of liberal freedoms in China indicate a growing crisis, leading to a need to imagine new constitutional arrangements? Or can its increasing authoritarianism establish itself as itself the basis of an enduring order? Finally, places like the United States, Japan, and India, with relatively stable democracies, also face questions about the relation between their forms of order and the dynamics of political representation that endanger their stability. The successes of Narendra Modi in India and Donald Trump in the United States challenge the liberal foundations of these democracies and are forcing a reconsideration of the customs and rituals of electoral politics. All of these developments warrant a reevaluation of the basic tenets of political and constitutional theory as well as an attempt to think through constitutional issues in regional and historical contexts that could benefit from a more thoroughgoing analysis of their situation.
If one goal is to think about what went wrong with the theory, the other one is to reflect on possibilities for action. One of the primary explanations of the disappointing directions of transformations in North Africa and the Middle East has been that the prerequisites for a liberal democratic order were missing. The conclusion here could be that the political goal should be to try to establish these prerequisites, such as the rule of law, education, economic development, and free elections. But another line of thinking might inquire into the practical alternatives when these prerequisites are missing. If a constitution embodies a people’s self-conception as a political entity, can there be alternative constitutional arrangements that match different self-conceptions? On the one hand, this is a question about the way that liberal democratic constitutions function in different contexts. Do politics in Japan or India follow different constitutional dynamics than politics in the United States, in spite of shared formal structures? On the other hand, it is a question about what to do in situations such as Egypt, in which a liberal democratic constitution could not be established, or Russia, where such a constitution does not function according to liberal theory. In the case of Egypt, there is a functioning order that indicates that its people are “constituted” as a people, but it is not clear what the nature and structure of this constitution might be. Does Egypt in fact have the order that suits the present situation? If not, what are the practical alternatives?
The essays in this issue present the results of a February 2018 workshop on Challenging Liberal Order at the University of California, Irvine, as well as the subsequent 2018 Telos-Paul Piccone Institute conference in New York on Constitutional Theory as Cultural Problem. We would like to thank the UC Irvine Provost Initiative on Understanding and Confronting Extremism, the International Center for Critical Theory (ICCT)-NYU, and the Telos-Paul Piccone Institute for their generous support of the workshop, the conference, and the special issue. While some of the contributions gathered here consider the historical developments that constrain current choices, others investigate the new possibilities that come into view with changed theoretical assumptions. Paul Kahn provides a keen sense of both in his story of failed constitution building in Liberia, where the cultural prerequisites for a functioning liberal democracy were simply not present after a military coup. This experience demonstrates that a constitution is meaningless without a culture that supports it because laws, as a set of texts, can never mean anything without an interpretation. Because interpretation involves a constant set of choices about the meaning and authority of law, the constitution itself is not determining but rather the culture within which it is embedded. The character of a culture, however, does not have any objective basis and consists of representations, including worldviews, myths, religions, and views of history, that establish a sense of identity. Yet the process by which particular representations acquire a defining influence on collective identity is not a rational or predictable one and will vary from culture to culture. Moreover, this process is a political one in which both violence and sacrifice play key roles in decision-making.
Kahn lays out the workings of this process by turning to the history of the United States. He begins with a discussion of how in the United States a scientific worldview has been unable to explain the ways in which law relates to the realm of power that is decisive for the functioning of law. As a result, he turns to the myth of origins contained in the Jewish Bible as well as to retellings of early U.S. history to arrive at the fundamental beliefs that ground U.S. constitutional culture. He outlines three major representational strands. First, he refers to a culture of science that seeks to embed our thinking about law in a scientific approach to case law. By analyzing individual past legal judgments, this approach aims to arrive at an underlying basis for all law, seeing the entirety of law as a kind of unified organism. While this approach privileges academics and legal science, it criticizes the politicization of law as a dangerous intervention into its functioning. This approach promulgates a liberal myth of the objectivity of law. Second, Kahn describes the way in which the book of Genesis provides a story of the way in which law and freedom interact in order to establish the identity of the Jewish people. The willfulness that transgresses law in this story lies also at the foundation of a U.S. constitutional tradition whose primary task was to transform a revolutionary spirit into a stable constitution. The key to this transition was Lincoln’s invocation of the scars of the war wounded in the American Revolution and the Civil War as the sacred marks that guaranteed the reverence for the Constitution. Here, Kahn sees a uniquely modern mode of establishing the political foundations for U.S. constitutional culture through a reinterpretation of historical origins. In this model, it is not so much the weight of tradition but the establishment of a particular interpretation of the past that creates the originating and stabilizing political structure for sovereignty.
Aryeh Botwinick further emphasizes the primacy of interpretation when he compares the unwritten constitution of Great Britain with the written U.S. Constitution in order to show how it is the absences in texts that become crucial for maintaining liberal order. The U.S. Constitution can endure only because it creates a formal structure that lacks substantive statements of principle, allowing these absences to be supplemented in different ways across interpretations. While specific statements such as “due process” and “equal protection” are so vague that they demand interpretation in order for them to make sense, other principles such as “separation of powers” and “checks and balances” are not stated at all but are embodied in the formal structure, again requiring subsequent interpretation in order to give them real meaning. This minimalist constitution allows for continual transformations in the foundations of political order, while also maintaining a consistent structure for managing conflict. Such a constitution is an example for Botwinick of a Hobbesian metaphysics of language, in which things must be represented as texts before they gain any primary identity and reality. But if the representation is primary and that which they refer to is secondary, truth, as in Plato’s schema, becomes subordinate to ethics. The sociopolitical consequence is that the political conflicts that require constitutional interpretation become primary for defining the meaning of a constitution, and “the political achieves the status of an ontological category.” The essence of constitutions lies in the arbitrary political acts that define the state through this interpretive struggle. In this sense, constitutions are an example of the way in which words and texts in general have a normative force in which “ostensibly descriptive words turn out to be prescriptive and normative, constitutive of entities that we take to be (or posit to be) in the world.” The meaning of words and constitutions must result from the vagaries of every concrete political context in which our ethics are defined in terms of the immediate necessities that constrain our choices. If politics are constitutive for legal order, struggles of political interpretation also become the primary place for ethical action.
Greg Melleuish describes transformations in the functioning of a written constitution in another former British colony by considering the changing self-understanding of the Australian colonists over the last century. When Australia’s written constitution was established in the 1890s, its goal was to set up a federal structure to unify the six Australian colonial governments. But because the political identity of these colonies was still defined by their relationship to Great Britain, the system of government still followed in many ways the structures of the unwritten constitution of the British Westminster system, mixing elements of this system with the provisions of the Australian written constitution. This system worked as long as Australians thought of themselves as being British. But as a separate Australian identity developed and Australian citizenship was established in 1948, the customary arrangements of the Westminster system have been gradually eroded in crises that have been resolved through departures from that system. These crises and their resolutions have led to shifts in the functioning of Australia’s constitution, even though the written constitution has remained essentially unchanged.
Though Europe originated the idea of liberal democracy, its democracies have seen more than their share of breakdowns of liberal ideals. These situations of instability have generally involved continuing differences within the polity that have led to either conflict or the repression of groups within the state. Andrea Gadberry addresses the problem of distinctions within the people in her analysis of the problem of aristocracy in France. She analyzes writings by the Abbé Sièyes in order to define the aristocracy in a way that explains its persistence as a category, even in states that have formally abolished them. By linking Sièyes to Carl Schmitt, Gadberry emphasizes the way in which the aristocracy had a representational function and how this function still remains an issue in “representational” democracy. The persistence of aristocracy is part of a desire for domination that belongs to human nature itself. The aristocracy becomes the place where the uniformity of the “common” people runs into a point of distinction that seeks to impose its domination. But the division within the people that the aristocracy sets up also becomes, in the case of the French Revolution, the point at which the people can define itself against an enemy that tries to dominate it. Linking distinction to domination, Gadberry concludes with the hope that we might one day escape from the problem of aristocracy by arriving at a new human nature that would be free from a desire for domination.
If the early French Republic struggled with distinctions within the people that threatened their unity, Germany’s first republican government faced a similar problem that was ended with the Nazi imposition of unity. In analyzing this subversion of the republic, David Pan suggests that one of the problems of the republic revolved around its inability to maintain stability in the face of conflicting popular movements. Indicating that processes of continuing transformation need to be integrated into our understanding of the way in which constitutions function representationally, Pan cites Schmitt’s Constitutional Theory in order to argue that laws arise as a consequence of the way in which a people represents itself to itself as a political unity. Because any particular state form is based on a representation of the people and this people is in a constant state of flux, a political order will always be faced with movements within the people that transform its self-representation and, correspondingly, the meaning of its constitution. He interprets Hitler’s rise to power as an example of how the Nazi movement transformed the Weimar Republic by establishing a new representation of German identity. Though Schmitt addresses the questions of movements in State, Movement, People, Schmitt argues both that a state is neutral and that it must derive its political orientation from a party. The claim of a neutral state that is nevertheless politically directed by the party leads to a total state that suppresses alternative political movements. Against this notion of a total state, Pan argues that we must recognize the representational basis of the state, in which every state contains within its structures a particular vision of the basis of unity and with it an understanding of the way in which its construction of the public sphere separates the sphere of debate from the sphere of violence. The state does not in fact consist of a neutral bureaucracy because the public sphere upon which the state is founded is itself the result of a foundational and partisan violence. Every state defines the public sphere according to its particular representation of the unity of the people. This representation is what is at stake in the shifting interpretations that define constitutional order. If the Nazi movement undermined such an order, this result stemmed not from an inadequacy of the laws but from the lack of compelling representational alternatives to the Nazi vision.
If Pan insists on the importance for a functioning constitution of a stable political identity that can bring together all segments of a population, Bernhard Schlink suggests that the minimum requirements for a liberal constitutional system are respect for the rule of law and an independent judiciary. This space of law however presupposes the ability of citizens to appreciate its value, and this appreciation is not a given. Rather, it depends on the development of an entrepreneurial bourgeois class that understands the value of the rule of law for protecting private property rights and the freedom to engage in independent economic activity, as well as working classes who value freedom of opinion, assembly, and association as means to shaping employment and social security conditions. Schlink points out that these middle- and working-class subjects who would value the rule of law and liberal freedoms are on the decline all over the world. Instead of economies built on entrepreneurial activity and work, the world is increasingly defined by bureaucracy-to-client relationships in which governments and corporations satisfy needs and individuals have little room or desire for independent agency. While he cites the examples of China, Vietnam, Russia, and Eastern Europe, he also refers to Western democracies where people are either precariously employed or living on “state benefits, perhaps even over two or three generations.” Populism is then a kind of inchoate rage that emerges out of the powerless client situation. Because it is grounded in a client class, populist rage can be easily manipulated, as the defining condition of this rage is in fact dependence rather than independence. While he leaves open the question of the deteriorating economic and social conditions for an interest in the rule of law, Schlink would like to work on the everyday problems in which people can regain a sense of agency, establishing or reestablishing the rule of law in such areas as landlord–tenant, buyer–seller, employer–employee disputes, the establishment of businesses, and the rights of habeus corpus and free assembly.
Andrey Medushevsky describes the ways in which the development of Russian law and politics has defied liberal theories about the functioning of constitutional structures. Because Russian politics has been dominated by revolutionary ideology since the Russian Revolution, its constitutions have not been able to define social order. Politics in the revolutionary era from 1917 to 1991 were dominated by the myth of the revolution, which did not establish fixed legal structures so much as set political priorities for a “nominal constitutionalism.” In fact, Medushevsky emphasizes that each of the Soviet-era constitutions of 1918, 1924, 1936, and 1977 was promulgated as the culmination of a period of repression. All through this period, the supreme Communist leader was the de facto holder of power, and the constitution itself was extremely “flexible” in that liberal rights and judicial review were overridden by extralegal norms. The leader was authorized to interpret the constitution according to ideological needs, and the main function of the legal-political order was to mobilize society in specific directions and place strict limits on political action. The power of extralegal norms was maintained through massive propaganda, indoctrination, and political terror, establishing a strict dichotomy between the friends and the enemies of social engineering projects. Mikhail Gorbachev’s attempt to shift the constitution from a nominal one to a real one by turning Communist ideology into law led to the collapse of the whole system because this system was ultimately based on the primacy of ideology. The current system is a populist one characterized by the de-ideologization of society, the end of one-party rule, and a strong president, whose power is reminiscent of that of the pre-revolutionary monarchs. The shifts in the constitutional system did not involve more or less respect for the rule of law but the shifting of political discourse to different ideologies.
The three essays focused on Japan pose the question of constitutionalism and democracy because, as Loren Goodman points out, the case of the Japanese constitution is an example of a constitution that was imposed undemocratically by the U.S. military occupiers rather than developed by the people themselves. But in spite of the foreign provenance of the constitution, it continues to function today, and Goodman delves into the mechanisms by which the Japanese both were able to affect the establishment of the constitution through their translation practice and have interpreted it since then to assert their own popular will. Through interviews with today’s Japanese, he charts both a shift in attitudes about power that was successfully managed by the American authorities as well as the relatively high degree of identification the Japanese demonstrate toward their constitution, suggesting a successful merging of democratic processes with liberal constitutionalism in Japan.
By contrast, Nakajima Takahiro points out the quandaries of the democratic deficit in the establishment of the Japanese constitution by addressing the conflict between the sovereignty of the people and liberal values such as human rights that are embedded Japan’s constitution. Nakajima argues that since democratic majority rule threatens to repress minorities, the liberal values contained in the human rights perspective tends to constrain the sovereignty of the people. Citing Yasuo Hasebe, Nakajima indicates that constitutionalism needs to be understood as a constraint on state power but that such a constraint would be undemocratic and could even lead to the tyranny of a minority. The liberal solution to this problem has been for the constitution to establish a state in which substantive issues of ethics are not decided by the state. Rather, the state presides over a diversity of conflicting worldviews and guarantees their ability to coexist. One can interpret this situation as one where the state would not impose particular meanings and aims on its citizens and would consequently not be able to demand that they die fighting an external enemy. But the alternative interpretation is that this anti-war, human rights stance is itself a particular meaning that is being established as an overarching good. The paradox of Article 9’s renunciation of war in the Japanese constitution is that it establishes a human rights ethic as the defining value at the heart of the constitution but in doing so also renounces the means to defend this substantive value. The practical result has been the transfer of defense concerns to the United States, with the burden of this transfer placed onto Okinawa, which hosts the majority of U.S. military personnel in Japan against the wishes of the Okinawans. Different forms of sovereignty—the sovereignty of international human rights, U.S. sovereignty, Japanese national sovereignty, and Okinawan local sovereignty—all conflict in this situation. Faced with this dilemma, Nakajima cites Jacques Derrida’s idea of the division and sharing of sovereignty against the Schmittian idea of the indivisibility of sovereignty in order to suggest a federation of states, an international union of states, or a union of localities that could create a sharing of sovereignty to establish the ideal of human rights.
Responding to the same democratic deficit as Nakajima, Qin Wang reads it as part of a larger Asian surrender of sovereignty to the West and interprets the imposed character of the Japanese constitution as a reflection of the way in which Japanese experience has been subordinated to Western modernization. But because modernization in Asia took place as part of the European expansion of capitalism based on the autonomous individual, even Asian resistance to this process is part of the structure of the European invasion. Take-uchi Yoshimi distinguishes two forms of such resistance. The first is a Japanese imperialism that reproduces European imperialism, while the second is a kind of powerlessness of literature that refuses European reason and world history, as well as any type of political determination of the subject. Takeuchi imagines a literary subjectivity that creates a connectedness of the weak, as opposed to the political logic of identity and resistance. Article 9 becomes an example of this powerlessness, as its invocation of the Japanese people combines with the establishment of an ethic of human rights that renounces national power. It is the moment in which the constitution turns from being a political document to a literary one, thereby renouncing sovereignty.
The issue concludes by returning to the situation in Africa in order to consider whether the liberal theory of constitutionalism has limited thinking in Africa about the forms of constitutionalism that might respond to this continent’s needs. Michael Ogwezzy argues that Nigeria’s current constitution reserves too many powers for the central government, which ends up with an exaggerated role in the economy, creating both rent-seeking behaviors and the rise of ethnic separatist movements. For Ogwezzy, Nigeria’s multiethnic and multicultural population requires a devolution of power to local regions in order to allow a better coexistence between different groups and to promote economic independence and development.
In his consideration of the possibility of democratic and republican coups d’état, Beau Mullen investigates the ethical basis of political order in places that lack a stable liberal constitutional culture. In analyzing examples of successful and failed military coups in situations of constitutional crisis, he recognizes that coups may occur as reactions against rulers who have been able to establish authoritarian rule. In the case of democratic coups, the military might act with the support of a majority of the populace in order to depose an authoritarian or totalitarian regime. But Mullen also suggests the possibility of republican coups that would be undertaken against an essentially democratic government, such as in the case of the 2013 coup that deposed Mohamed Morsi in Egypt. In such a case, the military can be seen as acting to protect liberal principles where the democratically elected government was threatening minority rights. While the legitimacy of such coups depends on the willingness of the military to quickly reestablish democratic government, it also depends on the ethical authority that the military as an institution has gained within the political order. But this authority suggests that in such situations the military might already have been playing the role of a hidden sovereign before the coup. Such examples suggest that the ethical alternatives for politics will sometimes depend on the institutional frameworks that provide the source of stability within which ethical decision-making can take place.
These essays attempt to revise constitutional theory to respond to a world in flux, in which the presuppositions of liberal democracy have been thrown into question by both the failures to establish liberal democracy in new places and the inability of existing liberal democracies to maintain the stability of their own institutions. While the liberal democratic model continues to provide a touchstone for thinking about political order, this model can no longer be taken as the goal of a universal, world-historical development. Local historical traditions and theological frameworks establish more enduring constraints on political development that cannot be simply dispelled through the establishment of a liberal constitution. The cases of postwar Japan and Germany, in which liberal democracy was imposed with the general assent of those peoples, may have diverted attention from the extent to which these successes have depended upon voluntary surrenders of sovereignty that would be difficult to reproduce without annihilation in war. If the model is running into difficulties in the West, this may be because the model depends on specific sociohistorical structures of a laissez-faire capitalism that may be giving way to a new kind of bureaucratically organized order. Perhaps more importantly, liberal constitutional orders depend on a process of continuing interpretation and new self-representations of the character of the people, a process that can ultimately threaten the cultural bases of liberal democracy, even in its oldest manifestations.
