I-CONnect Symposium – Peopling Constitutional Law: Revisiting ‘Constitutional Ethnography’ in the Twenty-First Century – Part IV. Where is a Constitution?

Anya Bernstein, Professor of Anthropology, University of Connecticut

            In her timely keynote to this symposium, Kim Lane Scheppele notes that “constitutionalism hinges on its being taken for real and taken for granted across a wide swath of the population.” To understand the counter-constitutional movements she talks about, we also need an account of how that real-making and granted-taking happens. We need, in other words, to recognize the conditions for non-crisis: how people produce and sustain norms and normality (constitutional and otherwise). But how can we get at constitutional normality-production? What kind of field site does that entail? Where is a constitution? Sometimes, we can take an ethnographic approach to the way a constitution is created. But the canonical place to find constitutions is probably the court. Court pronouncements show how constitutions get interpreted over time—and interpretation, of course, is a form of production that keeps recreating a constitution over time.

            Focusing on courts primarily looks to what people say the law means (and of course the cultural underpinnings and effects of that saying and meaning). And in that, courts are interesting because they are powerful. In the US, for instance, when the court makes a constitutional pronouncement, that becomes what the constitution means: every constitutional decision is a classic speech act, creating the world it describes. In many other countries, the speech act is not quite so decisive; other institutions get to modify or ignore a court’s attempt to recreate a constitution. Nonetheless, the struggle is held over speech acts of interpretation.

            At the same time, a constitution itself is a speech act: it’s a text that creates not just government obligations but also government structure. It sketches out the scope of government power and the relationships among government institutions. And in this, like any speech act, it depends not only on the felicity conditions that lend its sketch authority, but on the ongoing uptake that instantiates that sketch in practice.

            So one might say a constitution assembles a skeleton onto which subsequent generations hang bodies of different types and shapes. Or that it maps a floor plan that different groups occupy differently. Or even that it points to a destination to which there are many possible routes. The uptake—the instantiation that brings a constitution to life in any given place and time—happens not just in the courts, but in every government institution. Each has to fit itself somehow onto the constitutional floor plan; bend itself toward the constitutional destination; and also ground itself in the here-and-now society of the governed—finding fresh, relevant muscles to bulk up the constitutional skeleton.

            It’s on that structural aspect of a constitution that I like to focus, and in particular on the administration of government. So in some sense I’m here to make a pitch: constitutional ethnography should include the bureaucracy that brings the constitution (and the laws made in its shadow) to life.

            A focus on bureaucracy allows one to ethnographize the separation of powers. For instance, I have asked how those working in the administrative state understand their place in the government: how do they conceive of inter-branch interaction? In my research, administrators in Taiwan—a vibrant, though embattled, democracy—have described an ideal of highly porous political branches. For these administrators, the state’s legitimacy inhered in ongoing conversation between administration and legislature, which dynamically allocated responsibilities to produce coherent policy. My Taiwanese interlocuters were less interested in interacting with courts (no surprise given Taiwan’s limited judicial review of administrative policy decisions). Administrators in the US federal government, in contrast, were often wary of interacting with the legislature: in their more static model of competing rather than collaborating branches, legislative input after a statute was enacted could undermine a policy’s legitimacy. But they were highly attuned to the views of courts—though less as rational actors than as capricious blunderbuss interlopers.

            Studying administration can also reveal how a government interacts with its publics—a central constitutional concern that underlies how accountability is understood and produced. Cristina Rodríguez and I argue in forthcoming work that in the US government, administrative agencies have the most solid scaffolds for public accountability. Our work with US government administrators highlighted the ongoing interaction agencies have with the regulated world and its regulated publics. Agencies’ consistent confrontation with the realities of their areas of concern—technical developments, social changes—and the views of the publics they affect far exceed anything legislatures or courts could offer. And the broadly multi-lateral contestatory and deliberative processes of producing policy create support for ongoing accountability about specific policy decisions that a chief executive alone could not bear. In the US system, constitutional leanings toward pluralistic democracy are instantiated most consistently in the administrative state.

            These findings interact with court pronouncements in important ways. In the US, for example, the Supreme Court has moved toward centralizing administrative power in the person of the president, justifying this move with reference to very particular visions of the separation of powers and of public accountability. Figuring out how separation of power and accountability actually play out on the ground, and comparing different versions of these values across polities, can provide both an empirical and a normative response to these doctrines, which Glen Staszewski and I have identified as a form of judicial populism.

            As Scheppele shows in frightening specificity, counter-constitutional movements undermine the assumptions and the taken-for-granted practices of a constitutional order. I would just add that the production of those assumptions and practices is itself a major social undertaking. And it is not transparent or obvious. Understanding—and even recognizing—those normality-producing practices itself requires sustained study and attention. That work can in turn provide ballast against counter-constitutional swerves. Constitutional ethnography has a lot to offer, including in those spheres where people might rarely talk about their constitution—even as they go about daily bringing it to life.

Suggested citation: Anya Bernstein, Where is a Constitution?, Int’l J. Const. L. Blog, May 16, 2023, at: iconnectblog.com/i-connect-symposium-peopling-constitutional-law-revisiting-constitutional-ethnography-in-the-twenty-first-century-part-iv-where-is-a-constitution/