A Reply to Professor Zoran Oklopcic

—Joel Colón-Ríos, Senior Lecturer, Victoria University of Wellington

I am deeply grateful for Zoran Oklopcic’s thoughtful and challenging review of Weak Constitutionalism. In this short note, my objective will be to respond to what I think are Oklopcic’s three main critiques about the argument presented in the book, namely: (1) that the desirability of weak constitutionalism depends, in the last instance, on empirical verification; (2) that there is a certain ambiguity in the distinction between fundamental and non-fundamental constitutional change; and (3) that the democratic potential of constituent power is weakened if not negated in contemporary societies. Each of these three criticisms challenge, in different ways, the central theoretical claim of the book: that in order to enjoy democratic legitimacy, a constitutional regime must facilitate the exercise of constituent power through participatory and open procedures. In this respect, a proper response to Oklopcic’s critique would require a full article, but I will attempt to outline the main elements of that response here.

Oklopcic contrasts ‘weak constitutionalism’ to what he calls ‘strong democratic constitutionalism’. Unlike the former, strong democratic constitutionalism would perpetuate the principle of democratic openness through the entrenchment of “essential democratic rights”. I believe that Oklopcic has in mind a constitution that makes rights such as freedom of association, freedom of speech, and the right to vote, either very difficult or legally impossible to abolish. This rigidity could be achieved by a stringent amendment rule (like that present in the U.S. Constitution), or by an eternity clause (like that present in the German Basic Law as well as in numerous others national constitutions). Oklopcic maintains that both weak constitutionalism and strong democratic constitutionalism come accompanied by advantages and risks, and that the question of which approach is more risky or more advantageous requires empirical verification.

I think that Oklopcic is right on both points but that, even in the absence of strong evidence in favour or against one of these options, there are good normative and historical reasons for thinking that weak constitutionalism is a superior alternative. To begin with, there is the question of to who is the entrenchment of essential democratic rights directed. If the entrenchment takes the form of a stringent amendment rule or of an eternity clause directed at the ordinary institutions of government, then it would not only be entirely consistent with, but also recommended by, weak constitutionalism. That is to say, prohibiting the legislature and the executive (with or without the direct participation of the electorate in a constitutional referendum) from effecting certain changes does not run in any way contrary to weak constitutionalism’s insistence in a constitutional regime that facilitates the exercise of a -legally unlimited- constituent power.

As in most constitutional systems, weak constitutionalism would see the entrenchment of rights, even through eternity clauses, as only binding on the constituted powers acting through the ordinary amendment process, not on the sovereign people. In other words, eternity clauses and stringent amendment rules are typically seen as limits that the people, in the exercise of their constituent power, include in the constitution in order to prevent (or make highly unlikely) the alteration of certain provisions or principles by ordinary politicians. An exception may be Germany where, in a 2009 judgment, the Federal Constitutional Court, even though maintaining that a violation of the eternity clause contained in Article 79.3 was a “an infringement of the constituent power of the people”, expressed that “it may remain open whether, due to the universal nature of dignity, freedom and equality alone, this commitment [reflected in the eternity clause] even applies to the constituent power”.[1]

This exception notwithstanding (which arguably does not apply to certain principles also protected by the Basic Law’s eternity clause, such as federalism), modern and contemporary constitutional discourse has generally supported the view that ‘the people’ can have any constitution they want (regardless of what the existing constitutional text says), since any other approach would be in conflict with basic democratic principles. What weak constitutionalism does is to take that proposition to its natural implication: to provide the means for the people (currently negated by most constitutional regimes) to become the actual authors of their transformed constitution. Oklopcic would nevertheless insist that if the attempt to entrench particular constitutional provisions is to be understood only as limiting the ordinary power of constitutional reform and not the constituent power, then we run that risk that if the “democratic process goes awry, there is nothing to back up constituent power’s promise of democratic openness, except for the theorists’ exhortations”.

Despite the force of Oklopcic’s critique, I think it is not too much of a gamble to believe unlikely that even the absence of entrenchment, essential democratic rights would be abolished or even limited by participatory episodes of constitutional change.  On the contrary, the risk of the absence of entrenchment (or of sufficient entrenchment) is that these rights may not be respected by the constituted powers. That is to say, it is easy to find examples of ordinary and constitutional laws adopted through normal law-making or constitution-amending procedures that negatively affect essential democratic rights. But it is difficult to find cases (and in fact I am not aware of any case) in which a participatory process of constitutional change (that is, a process that takes place through an extra-ordinary elected body, such as a Constituent Assembly activated by popular referendum whose proposals have to be ratified by the people before they come into effect) has resulted in a constitution that does not protect these rights.[2]

In fact, even if not by any means perfect (more on this below), the recent episodes of participatory constitution-making in Ecuador, Bolivia, and Venezuela resulted in constitutions highly protective of all sorts of rights. That these protections are violated in practice simply provides support to the previous point: that ordinary government, not the people, is much more likely to violate or abolish essential democratic rights.  This might mean that, after all, strong democratic constitutionalism and weak constitutionalism would be virtually indistinguishable as a matter of actual political practice. The problem, as noted in the book and suggested by Oklopcic, is that the entrenchment of “essential democratic rights” would come normally accompanied by giving some institution, being it a court or a legislature, the power to determine whether the people have adopted a constitution inconsistent with -an ‘incorrect’ interpretation of- these rights. For example, such an institution could adopt an understanding of freedom of expression as protecting the unlimited corporate funding of activities in support of certain political parties or candidates, and subsequently invalidate a popular constitutional change seeking to limit the abilities of corporations to influence electoral politics.

This is why, even if Oklopcic is correct that the argument for weak constitutionalism can be recast as a matter of a trade-off, there is more to lose, from a democratic perspective, if one attempts to guard against highly unlikely episodes of constitutional change in which ordinary citizens decide to deprive themselves of the rights that allowed them to engage in constitutional (re)making in the first place. Oklopcic’s second and third critiques are harder to address and I will be only able to provide a very limited response here. Oklopcic writes that the distinction that I make between fundamental and non-fundamental constitutional change is not sufficiently clear. To exemplify this point, he asks whether something is fundamental because the people has determined it to be so or because it meets some objective criteria (e.g. changes that alter the form of the state, that alter rights, etc.).

If the former, he suggests, an independent understanding of the distinction between democratic governance and democracy at the level of the fundamental laws, would not be possible, as it would be the people’s “will to constitutionalize”, and not constitutional theory that establishes the distinction. In my view, this is not necessarily a problem. That is to say, there is no reason why the distinction between these two dimensions of democracy (and between fundamental and non-fundamental constitutional change) should not be context specific. The distinction would only crumble in extreme cases: if nothing is placed out of the scope of ordinary legislative majorities (as in a system of parliamentary sovereignty) or if everything is constitutionalized (as in such case every change to the law would require an exercise of constituent power). However, Oklopcic adds that if what makes something fundamental or non-fundamental is to be determined through the independent lens of constitutional theory, then we might fail to treat as fundamental certain changes that, while seemingly innocuous, are capable of seriously damaging “the scope of feasible democratic choices”.

As an example, Oklopcic mentions the proposal to constitutionalize the rules of fiscal responsibility in Slovenia. Should such a proposal be considered to amount to ‘fundamental’ or to ‘non-fundamental’ constitutional change? Under a system based on the theory of weak constitutionalism, if such proposals constitute fundamental constitutional change, they would have to be adopted through a highly participatory procedure; if not, they could be adopted through the ordinary amendment process. In the book, and akin to an approach developed by the Constitutional Court of Colombia, I maintain that a fundamental constitutional change is one that can be understood as amounting to the creation of a new constitution. The specific changes that would fall under this category, I argue, would vary from society to society, but reforms that negatively affect constitutional provisions required for the very existence of democracy (e.g. “essential democratic rights”), should always be considered fundamental.

In this sense, and to continue with the example provided by Oklopcic, a proposal to constitutionalize the rules of fiscal responsibility, by itself, would not be considered fundamental under this approach. However, it might be that, in the context of a particular society and a particular constitution, constitutionalizing these rules would involve a transformation of such proportions and effects that it would amount to the creation of a new constitutional regime and therefore require an exercise of constituent power. Even if one agrees with the above, and this is what I have identified as Oklopcic’s third critique, in the contemporary world any exercise of the ‘people’s constituent power’ always depend on “the loci of power outside of the people’s control”. This is a powerful point, and Oklopcic has developed it in his own work.[3] He maintains that, for example, the true Greek constituent power(s) are not properly represented by the human beings protesting in the streets, but by external entities such as the German Parliament and the European Central Bank. There is not much one can say in response to this point, for it accurately represents the fragile state of democratic constitutionalism around the world.

In support of Oklopcic’s point, one may add that even leaving aside these external constituent powers, processes of constitution-making are usually dominated not by ordinary citizens, but by political elites. The only possible answer to this third critique, from the perspective of weak constitutionalism, would be a political one. That is to say, it might be correct that, as a matter of actual constitutional practice, there is no such thing as a constitution adopted by ‘the people’ (neither in mono-national nor in multi-national contexts, even if in the latter there is the additional problem of competing claims to constituent power, which, as Oklopcic, maintains, weak constitutionalism cannot resolve). However, the point is that democratic polities should aspire to create mechanisms that facilitate episodes of popular participation in constitutional change that would come, as close as possible, to an exercise of the constituent power of the people (understood here not as an ethnically or culturally homogenous group, but in a Sieyesean fashion, as including all those that will be subject to the same constitution).

This is why I maintain that the recent processes of constitution-making in Ecuador, Bolivia, and Venezuela (even with all their shortcomings, such as the influence of the executive over the decisions of the Constituent Assembly) are democratically superior to the traditional approach to constitution-making (in which ordinary legislatures assumed constituent jurisdiction and citizens appeared as mere receptors of fundamental constitutional changes). As just noted, this does not mean that these were ideal constitution-making processes. For example, as Oklopcic suggests, the constitution-making process in Bolivia resulted in the adoption of a constitution different from the one proposed by the Constituent Assembly, as Congress modified the proposed constitutional text in important ways before it was submitted to a referendum. One of these modifications was directly connected to the possibility of the future exercise of constituent power, and thus to the very democratic legitimacy of the constitutional regime.

That is, the original version of the amendment rule (cited in the book) allowed for the convocation of a ‘sovereign’ Constituent Assembly by popular initiative (Asamblea Constituyente originaria plenipotenciaria). Nevertheless, that provision was subsequently modified by Congress in order to add that the ‘sovereign’ Constituent Assembly would have to approve any new constitution by a two-third majority (as was controversially required for the Constituent Assembly that drafted the new constitution). This conceptually flawed attempt to constitutionalize (rather than to facilitate) the exercise of constituent power might prove to be ineffective in practice, but it nevertheless exemplifies the tension between political elites and popular politics that characterizes modern constitutional states. Weak constitutionalism would seek to resolve these tensions in favour of democracy. In pointing toward some of the challenges that this conception would face in the context of contemporary societies, Oklopcic identifies some of the problems that democratic constitutional theory has yet to confront.