—Kim Lane Scheppele, Princeton University
In normal times, most people do not think about constitutions very much. The existence of the institutions of state, their basic rules of operation, the methods for filling official vacancies and the things that the state should not do to its citizens simply seem obvious and work as expected. These, however, are not normal times.
Around the world, in both established and relatively new constitutional democracies, the basic understandings that underpin constitutional orders are coming unstuck. We see this in the overall decline in the ratings that measure commitments to constitutional checks and balances and that follow whether constitutional rights are being observed. We see the spectacular disappearance of what once passed for normal in January 6 in the US, the failed democratic fortunes of Turkey, the consolidation of autocracy in Hungary, the rise of intolerant Hinduism in India, the collapse of the Venezuelan state, the attacks on the independent judiciary in Poland and Brexit with its vertiginous constitutional aftermath in the UK. Among others. Constitutional democracy is faltering and sometimes failing in a wide array of countries in both the Global North and the Global South.
Of course, even relatively well-functioning constitutional systems will have controversies that force attention onto specific constitutional topics at specific moments. Does the US Second Amendment really include a personal right to own guns? How far does the German Basic Law permit delegation of key decisions to the European Union? Can the Indian prime minister govern by executive decree, or must the parliament pass statutes instead? Many of these controversies culminate in judicial decisions that resolve the issue, at least legally and at least for now. Every constitutional system will have close questions, contested areas, blank spots to be filled in with constitutional interpretation as well as points of genuine disagreement that may not be constitutionally resolvable. In constitutional systems in normal times, the answers to those contested questions will form the basis of what is taught as constitutional law in law schools.
Legal academics have focused primarily on these legal controversies and their legal resolution rather than on the background assumptions of the constitutional order or the daily workings of its institutions. This is not surprising: resolving legal disputes is what lawyers and judges do, and therefore what legal academics study. But, we should not forget that court decisions only settle constitutional questions (or for that matter, elections only settle who occupies key offices) when much about the constitutional order is already taken for granted.
Getting a constitution to this point is by no means a simple or singular process. Settled ideas can come unstuck, often quite quickly. Even when constitutional collapse is not on the horizon, the degree of constitutional settlement varies within a country across regions, from one social group to another and over time. The effects of a particular constitutional order can be wide-ranging and deep when they create a constitutional culture, checks and balances in public institutions, and firm guarantees for rights. But constitutional orders depend on taken-for-granted norms. When the constitutional culture is up for grabs, when the rules of the game are seriously contested and where basic principles no longer command basic agreement, constitutional orders can collapse. The continued reality of constitutionalism hinges on its being taken for real and taken for granted across a wide swath of the population.
If constitutions depend on being taken for real and for granted, then only on-the-ground investigation can figure out whether that is occurring, where and how. One cannot assume that law on the books translates into law in action or that official constitutional doctrine settles the most important questions of the day. That’s where constitutional ethnography comes in.
Nearly 20 years ago now, I defined constitutional ethnography as “the study of the central legal elements of politics using methods that are capable of recovering the lived detail of the politico-legal landscape.” The point of that essay – and of the special issue of the Law and Society Review that it introduced – was to focus our attention on what the sociolegal study of constitutions might look like.
By singling out ethnography as the best method for getting at the reality (or not) of constitutions, I contrasted ethnography with “variable-ization” in which a legal landscape is measured in pieces and then put back together through correlations. The variable-izers measure the rate of litigation, protest and constitutional violations; they gather survey-tapped beliefs of the population about elections, rights and being governed; they assess public demand for amendments, impeachments and elimination of executive term limits and so on – and then they find that loss of faith in elections is correlated with growing support for impeachments or increases in social protest lead to a demand for constitutional amendments. Such correlations have a reality of their own, but they may not represent the lived reality of those who are subject to a particular constitutional order. Bit it is in that lived reality, discoverable through ethnography, where constitutional acceptance and constitutional legitimacy reside and where they may die.
Ethnography can also be contrasted with the purely doctrinal analysis of constitutional law in which legally trained actors are the primary players and their professional product is parsed as an end in itself, without deep reference to the world into which it intervenes. Once a legal question is settled by a court in settled constitutional times, that’s what passes for a right answer. Once a legal question is settled by a court in unsettled constitutional times, however, the court decision can provoke conflict as much as it can tame it. Ethnography tells us when and how.
Ethnography aspires to take in the wholes of social settings – setting lawyers’ law against the backdrop of popular understandings, understanding history as it is received in the present, seeing pockets of hostility, rejection and apathy of some constitutional publics alongside the engagement and activism of others. It also takes the elements of constitutional setting that can be counted and places those measures into a broader context. Constitutional ethnography’s methodology is holistic, combining observation with interviews, participation with archives and most of all requiring the ethnographer to live in particular sites to learn how people think and act. Ethnography aims to understand how constitutions are turned into a lived reality – or how that project fails. Ethnography tells us more than what is correlated with what, and it tells us more than what the right legal answer is. It tells us whether a constitution is actually constituting, among whom, and how.
Constitutional ethnography leads us to see constitutions as real when people act as if they are. When a constitution is solid, presidents leave office when they are supposed to. Both sides of heated litigation abide by the court decision that settles the point, even when they disagree with it. Sociologists know this sort of effect as the “Thomas Theorem”: “If men define situations as real, they are real in their consequences.” If people believe constitutions are real, then constitutional structures and aspirations have real effects.
Ethnography gives us a 360-degree picture of a social setting in which these constitutional imaginaries are constructed. The focus on constitutional imaginaries doesn’t mean that a whole society is united by a common constitutional vision. In practice, a constitution is not necessarily real in the same way to all of its addressees. A constitution and its associated public law will tell state officials how their institutions are set up and how they must behave within those institutions, generally in ways that are more specific than the messages sent to general publics. Citizens are informed about their rights and obligations by constitutional norms, but different groups of citizens may feel addressed differently by these norms. Those who are privileged may have full access to constitutionalism’s promises; those who have been excluded will find a constitution’s protection missing in action. While the principles of constitutional government may be broadcast to all, different messages may be received in different audiences, as Stuart Hall has taught us. As a result, the sort of constitutional reality created in each audience of addressees may vary. This doesn’t make constitutions any less real, but it does make them more complicated. Understanding constitutions ethnographically aims at an understanding of how constitutions come to be treated as real, under what circumstances and by whom. And it requires understanding how constitutions ripple through variegated populations with differential effects and yet still provide the basic structures and principles of the state that hold well enough most of the time.
When I wrote about constitutional ethnography nearly 20 years ago, much of the world was on a constitutional high. Three waves of democratization in Southern Europe, Latin America and Eastern Europe meant that constitutional democracy was the “only game in town” in a growing number of countries. Research agendas were full of optimism that the spread of constitutional democracy would improve life for many. In the 1990s, I moved to Hungary and later to Russia to see the East European constitutional wave for myself, practicing constitutional ethnography in action. There were reasons to believe that countries that had until recently lived under dictatorship would become self-governing, democratic and constitutional nations. The narrative of “the end of history” assured us all that constitutional democracies were forever.
As I saw then, living in countries with brand new constitutions and newly constitutionalized and democratic governments, constitutional reality had to be deliberately built. Constitutions eventually came to feel real when they were personally learned, and then intersubjectively validated. Intersubjective validation refers to the process through which, when someone acts as if something is real, others reinforce their actions by also acting as if that very same something is real in the same way. Where whole constitutions or particular constitutional provisions failed to achieve this level of reality, they collapsed.
How does intersubjective validation work? Take the example of citizenship. If I show my US passport when I return to the US from a trip abroad and the immigration official at the desk recognizes the document, checks it in her system and stamps me into the country, my status as a citizen in good standing is reaffirmed. If this breaks down – my passport is not taken as real at the border even if I believed it was real in showing it to the immigration official in the first place – then the reality of the underlying system of certification through which I am recognized by my country starts to crumble. The reality of my citizenship will not necessarily be obliterated in a single failure of recognition – systems make mistakes; border guards have biases and bad days – but a persistent pattern of such de-recognition will undermine my citizenship. If this happens to many people at once or systematically to people in particular categories, the solidity of the citizenship regime itself will come under question. All of this can happen without any change in formal law if the institutions at the borders start to understand that law differently. So while acting as if constitutions are real, in the presence of others acting similarly, is one way to make them so, actors who seek to disconfirm this reality can change what counts as obvious. As a result, what we might have thought of as real – what goes without saying as obvious – collapses in the absence of intersubjective validation.
That said, when constitutional regimes seem unquestionably solid and rights claims are not being overtly challenged, questioning the obvious looks a bit suspicious, as if academics have nothing better to do with their time than poke at things that were perfectly fine before the poke. But the fact that a constitution – or some piece of it – is obvious in one time and place does not guarantee that that particular constitution will remain obvious. Obviousness is a crucial element of functioning constitutions and we need to understand how obviousness is generated not only to know understand how constitutions take hold, but also how to begin to fix constitutions when they break. The waning of obviousness – or the failure to achieve obviousness at all – is a sign of constitutional trouble.
As we look around the world today, we can see that constitutional trouble is widespread. If we want to understand this trouble, then I think as researchers, we need to shift away from studying only official constitutions and their associated institutions to understand the serious challenges posed by social and political movements that seek to replace one constitutional order with another. Of course, social and political movements can attempt to expand constitutionalism to include more successful rights claims, better public accountability of state institutions and better settlement of constitutional disputes. Pro-constitutional counter-constitutions are possible. But in the present moment, more social and political movements are moving in the opposite direction – toward deconstructing rights, concentrating power in few hands, capturing formerly independent institutions and turning democracies into electoral autocracies. They often use the superficial appearance of constitutionalism to hide their anti-constitutional aims. When this happens, constitutional ethnography is not enough. We also need to engage in counter-constitutional ethnography.
A counter-constitution is an alternative constitutional reality, forwarded by its advocates as a substitute for or as an unsettling supplement to an existing constitutional order. It is “counter” in the sense that it opposes an existing constitutional framework and “constitutional” in the sense that it offers itself as a constituting alternative for the governance of a particular community in the future. Counter-constitutions challenge the previously taken-for-granted status of the prior constitution which, precisely because of the challenge, can no longer claims obviousness. Counter-constitutional ethnographers might then ask: What made the prior constitution seem obvious until that point? And why did that obviousness begin to fail when it did? What world-views do counter-constitutions sustain and what avenues of constitutional change do counter-constitutionalists pursue?
Studying counter-constitutions ethnographically involves finding “strategic research sites,” sites that are particularly likely to illuminate how these counter-constitutional cultures emerge and spread. Counter-constitutions often begin on the margins of society, where those who have felt excluded from existing power arrangements gather. But sometimes they explode into the center of a political community by appearing as an insurgent political party. To see deeply into these counter-constitutional movements, one must explore the meanings that these counter-constitutional players are constructing and the ways that they challenge the constitutional order.
For nearly 30 years now, I have been studying constitutional and counter-constitutional movements in Hungary. Living there in the 1990s and working inside the Constitutional Court which was busily constructing the dominant constitutionalism, I noticed that one relatively small but vocal party in the Parliament, the Smallholders’ Party, kept insisting on restoring the monarchy – or, if not able to bring back the king, at least recovering the symbols of state of the medieval Kingdom of Hungary. And so I discovered the Holy Crown of St. Stephen. The Holy Crown of St. Stephen is, as its advocates say, the crown given by the Pope to the first Christian king of Hungary in the year 1000. (Turns out, it’s not that but something altogether more interesting.) For 1000 years now – or so Crown Defenders say – the Crown has been the “true constitution” of Hungary. When the new anti-communist constitution was created in Hungary during the twists and turns of the political transformation in 1989-1990, Crown Defenders emerged to argue that Hungary’s historic constitution was illegitimately left behind in that process.
I wanted to hear more, so I tried to track them down. Crown Defenders could be found in right-wing bookstores, at nationalist celebrations, and of course on St. Stephen’s Day in countryside parades. As I followed them and their writings from the 1990s, on, my liberal friends wondered why I diverted my attention from “real constitutionalism.” I didn’t have a way to describe it then, but I felt that these Crown Defender were onto something important. They spoke the language of constitutionalism; they referenced a deep bench of (non-academic) historical research and writing about the Crown that many Hungarians knew and appreciated; they struck a chord in popular gatherings and had political ambitions. They were very serious. And they insisted that the Crown was the constitution.
Before that sounds too strange to be real, I might note that the Crown is not the only instance in which intangible constitutional ideas can be made more solid by projecting them onto tangible objects. Think of the number of times American constitutional patriots pull out their copies of their “pocket Constitutions” and wave them in the air just to prove that the Constitution exists. Of course, seeing a pamphlet version of a constitution does not make it a constitution – but the recognition by others that this particular pamphlet represents something real confirms the existence of the US Constitution. In a similar way in Hungary, the physical Crown of St. Stephen is the object that makes the invisible historical constitution visible to its Defenders. To them, mere words on paper are not enough; the material existence of an object that has lasted more than 1000 years is far more powerful. Crown Defenders therefore reproduce images of the Crown, write books about the history and “adventures” of the Crown and endlessly duplicate physical copies of the Crown itself to use in rituals and celebrations. The mapping of ideas onto objects can increase their claims to reality and, just like the pamphlet constitutions in the US, the Crown shows how it can be done.
A fringe movement when I first started tracking it in the 1990s, the Crown Defenders have since been coopted into the autocratic political movement of current Prime Minister Viktor Orbán as he has defined a new “illiberal state” in Hungary. In the 1990s, Crown Defenders were an important source of discontent with the 1989 liberal constitution because, in their views, it was a generic constitution that did not specifically carry forward Hungary’s distinctive constitutional history. Orbán spotted the opportunity that these energized nationalists provided for him to shift his own politics to the right in order to win hearts and minds with a new constitution that would give voice to Hungary’s historic Crown.
In 1999 during his first term as prime minister and on the eve of the Millennium, Orbán arranged for the Holy Crown to take a boat ride on the Danube from Budapest to the historic capital of Esztergom and back, with Crown admirers turning out in droves along the shore to witness the historic trip. Orbán further solidified his reputation as a Crown Defender by moving the Holy Crown from the National Museum to the Parliament building in a procession broadcast live on television and culminating in a celebration at the stroke of the new Millennium when the Crown finally arrived home, in the place where laws are made.
When Orbán became Prime Minister again in 2010, a position from which he now cannot be dislodged because he has since rigged the election rules, he again deployed the Crown to legitimate his rule. The new constitution that sprang from the inner circles of his government and was ratified by his party in the Parliament in 2011, featured the Holy Crown front and center. Not only was there a picture of the Crown on the frontispiece of the hardbound copies of the new text given to every schoolchild in the country, but the preamble of the text made reference to the Crown and the historic constitution, with a later article in the text making the preamble binding on judges as they interpret the constitution. The Crown is now back.
Of course, an object needs someone who can speak for it, someone who can elaborate the content of what it stands for. The Orbán government has channeled the historic constitution, revising institutions to restore their medieval names, honoring major historical events with beefed-up national holidays, even bringing back the historical uniforms of the Crown Guard. The historic train trip that the Crown took around Hungary in 1937 in a specially designed train to shore up the legitimacy of the government of the day was supposed to be repeated in 2020, but the pandemic intervened. For those who wanted restoration of the monarchy – or perhaps a repeat of the 20th century interwar period in which Miklós Horthy governed Hungary as a regent in the name of the Crown – Viktor Orbán has established himself again as a sort of new regent to the Crown, perfecting the counter-constitution as the new constitution of Hungary.
The story of how the Hungarian illiberal counter-constitution of 2011 vanquished the liberal constitution of 1989 shows that counter-constitutional ideas can topple even relatively deeply entrenched constitutions. Constitutional revolution – destroying democracy by law – is the way that governments are changed these days. Coups are less prevalent now as ways of toppling democratic government; legal revolutions have taken their place. The Hungarian example shows why it is crucial to pay attention to serious counter-constitutional movements when they are still marginal and sound a bit crazy. You never know when an opportunistic leader will grab the magic that these movements believe in and transfer that magic to shore up autocratic rule.
In our constitutionally troubled times, it’s worth asking whether such a thing can happen here. It depends on where “here” is, of course. In some places where constitutional democracy has already collapsed, a counter-constitutional revolution spurred electorates to elect an autocrat who then dismantled the constitution to which the revolutionaries were opposed, substituting for it a new populist constitution. But autocrats don’t emerge from thin air; they are very often raised up on the back of some counter-constitutional movement that was considered crazy by mainstream constitutionalists until the moment it became real.
What are the signs of constitutional danger? Building on what I saw in Hungary when the counter-constitutional Crown movement got hijacked by an autocrat, I now think that we need to take counter-constitutional movements more seriously. When counter-constitutional movements attract political leaders who provide the legal arguments to hook them up to serious constitutionalism, they suddenly become more dangerous. Counter-constitutional movements are particularly threatening at times of extreme political polarization, especially when they lead to constant challenges to the basic rules of the game. Destabilizing the obviousness of once taken-for-granted rules is precisely how they work. Flipping the Thomas Theorem, we can say that if people believe that the constitution is no longer real, the constitution will no longer have real consequences. And that provides an opportunity for a counter-constitution to occupy the space.
Constitutional ethnographers should, therefore, be on the alert for counter-constitutions. And no matter how crazy they may seem at first to those who take the existing constitutional order for granted, it is worth taking counter-constitutions seriously as research subjects so that we see them coming in time to shore up the constitutions that we believe are worth defending if we don’t want to lose them.
Suggested citation: Kim Lane Scheppele, Counter-Constitutional Ethnography, Int’l J. Const. L. Blog, Apr. 13, 2023, at: iconnectblog.com/connect-symposium-peopling-constitutional-law-revisiting-constitutional-ethnography-in-the-twenty-first-century-part-ii-counter-constitutiona/
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