[Editor’s Note: In this special installment of I•CONnect’s Review Series, Nicolás Figueroa offers a critical review of the I•CON debate between Mark Tushnet and Jan Komárek on constituent power and constitutional revolution. The debate appears in the current issue of I•CON, beginning with Tushnet’s paper here, followed by a reply by Komárek here, and concluding with a rejoinder from Tushnet here.]
Review by Nicolás Figueroa of I•CON Debate on Constituent Power and Constitutional Revolution
—Nicolás Figueroa, Ph.D. Candidate, New School for Social Research
Mark Tushnet’s recent contribution to I-CON on the topic of constitutional revolutions and the constituent power sets the tone for an exciting debate with his colleague Jan Komárek. Tushnet makes an interesting argument: he suggests the need to understand some cases of unconstitutional constitutional amendments as exercises of the constituent power that can eventually produce “revolutionary transformations in a nation’s constitutional identity but – sometimes – through the forms of legality”, i.e. without recourse to violence.[1] His main concern is with the establishment of unamendable clauses and with the limits that they impose on the power of a nation’s people to give themselves a constitution that actually reflects their will. Referring to these clauses, Tushnet asks the following question: “If the people at time-one had the power to place the provision in the constitution and specify that it be unamendable, why should the people at time-two not have the power to amend the provision, through procedures that are functionally equivalent to those used by the people at time-one (even if inconsistent with the procedures the people at time-one specified for altering the constitution)?”
Tushnet’s answer to this question follows a line that is characteristic of the work of important constitutional theorists in the United States about the rigidities that Article V imposes on the prospects of constitutional change.[2]
If an unamendable clause no longer satisfies a nation’s people, then they can initiate an informal process of constitutional change in order to bypass the wishes of the people at time-one. They can exercise what Tushnet calls “their right to revolution” by deploying “the methods they believe authorized by law to replace the existing constitution”. By using existing legal mechanisms against the explicit letter of the constitution or against the authoritative decisions of the courts confirming the unamendability of a given constitutional clause, the people can eventually remake their nation’s constitutional identity in a revolutionary, though not violent, form.
Here, Tushnet’s conception of the constituent power becomes explicit. He adheres to a purely conceptual approach to the constituent power that he problematically associates with Kelsen’s Grundnorm. This association is problematic because, in the end, it is the revolutionary conception of the constituent power typically associated with the writings of E.J. Sieyès and Carl Schmitt that Tushnet finally adopts, and which can hardly be reconciled with Kelsen’s aseptic separation of law and politics.[3] According to this revolutionary concept of the constituent power, a nation’s people is free to adopt any changes to the constitution unconstrained by any pre-exiting legality. Following Tushnet, “the concept of constituent power, as a concept, tells us that when the constituent power is exercised, we cannot use the word ‘unconstitutional’ to describe any of its actions. But, again, as a concept, it cannot tell us how to identify when the constituent power has been exercised”. The validity of such a constitutional revolution does not derive from its compliance with the rules of amendment; this is a question that can only be resolved retroactively: “As the observation that law runs out at some point in constitution making and implementing suggests, success is our measure for determining when such a retroactive ascription is warranted”.
However, as Jan Komárek argues in his reply to Tushnet, the introduction of this retroactive test of success is incompatible with Tushnet’s attempt to understand the constituent power in purely conceptual terms.[4] He asks: “But how do we know that the transformation was ‘successful’? Is the acceptance by legal officials sufficient? What if courts and the executive disagree? And what if people go to the streets and protest? How numerous do they need to be in order to count as ‘the people,’ the awakened constituent power that rejected the transformation of the constitution by a minority?” As Komárek notices, these questions can only be answered empirically and Tushnet fails to offer the adequate bases to advance in this investigation due to his ambiguous understanding of the constituent power.
This, of course, is an important discussion. But Komárek raises another difficulty in Tushnet’s work that deserves more detailed attention. Perhaps one can identify in Komárek’s reply a discomfort with the way in which Tushnet’s arguments fail to keep in mind the particularities of other constitutional traditions outside the United States. Komárek argues that Tushnet’s approach to constitutional revolutions and the constituent power is inappropriate to understand European constitutional experiences. He claims that “most European post-war constitutions have rejected unlimited popular sovereignty, which lies at the heart of US constitutionalism (or at least constitutes its arguably most influential conceptualization), and instead established regimes of ‘constrained democracies’”. European legality, in this sense, is based “on the people’s recognition of human rights”, as in the case of Germany’s unamendable human dignity clause. In this context, argues Komárek, Tushnet’s right to revolution “can only serve the aim of protecting the constitution against the government or a regime, which would want to violate it, but not to displace constitutional provisions that happened to fall out of the people’s favor”. And though Tushnet rightly replies that constitutional revolutions might also serve the purpose of fixing the defects that certain unamendable provisions might introduce to the constitution[5], Komárek’s argument is still relevant.
Tushnet’s fictional recourse to Colombian constitutional politics is illustrative of Komárek’s concerns. Tushnet imagines a scenario in which former president Uribe decides to ignore the Constitutional Court’s decision declaring unconstitutional an amendment directed at allowing the president to run for a third term and, by means of an unauthorized constituent assembly or through other mechanisms available to him by law (e.g. a referendum followed by elections), attempts to challenge the unamendable character of the anti-caudillo principle at the heart of the Colombian constitution.[6] Following Tushnet, this would be a case in which the constituent power emerges in order to enact an unconstitutional constitutional amendment that perhaps, against the letter of the constitution or the authoritative decisions of the court, is an accurate reflection of the wishes of the Colombian people to change their nation’s constitutional identity. However, and in a way that is characteristic of American theories of informal constitutional change, Tushnet seems to pay no serious attention to the risks of usurpation of the constituent power that might emerge once constitutional legality is instrumentalized in such a way. In the end, Tushnet claims, his argument rests “on a foundation of power”, i.e. “it rests on the proposition that at some point in constitutional theorizing our reliance on law runs out and we must deal with the exercise of power”. But power can be democratic and undemocratic.
Perhaps Tushnet’s attempt to avoid the tendency of constitutional theorists “to force power into the deep background” is a reflection of the capacity of American institutions such as the separation of powers and federalism to control the abuses of a constituent power exercised outside the formal rules of amendment, as Ackerman has argued. But in the context of different constitutional traditions there could be good reasons to resist the temptation to take the informal route and insist in a stricter adherence to legality as a regulative principle that can contribute to the “success” of constitutional changes in a way that Tushnet’s constitutional revolutions cannot. The case of Honduras is an example of the risks that Tushnet’s constitutional revolutions create in those contexts in which political institutions are not strong enough to attenuate the instability produced by such deviations from legality.[7] In the end, it is possible that Uribe knew this well and for that reason decided to abide to the Constitutional Court’s decision. Maybe, then, it is time to put aside the revolutionary conception according to which, as Tushnet claims, “exercises of the constituent power are necessarily extra-constitutional” or contra-constitutional when there are unamendable provisions. This should be at least possible in those contexts in which constitutions provide the means for their replacement, as is the case of Colombia. To follow these formal requirements for replacement can possibly increase the chances of success of a constitutional amendment and, on a more theoretical level, throw some light on productive ways to conceptualize the constituent power as something that can be exercised within legality.
Suggested Citation: Nicolás Figueroa, I•CON Debate Review: Constituent Power and Constitutional Revolution, Int’l J. Const. L. Blog, Feb. 25, 2015, at: http://www.iconnectblog.com/2016/02/i•con-debate-review-by-Nicolas-Figueroa
[1] Mark Tushnet, Peasants with pitchforks, and toilers with Twitter: Constitutional revolutions and the constituent power, 13(3) Int’l J. Const. L. (2015).
[2] See, for instance, Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55(4) U. CHICAGO L. REV. (1988); Bruce Ackerman, WE THE PEOPLE. FOUNDATIONS (1991), WE THE PEOPLE. TRANSFORMATIONS (1998); Stephen Griffin, Constituent Power and Constitutional Change in American Constitutionalism, in Martin Loughlin & Neil Walker (eds.), THE PARADOX OF CONSTITUTIONALISM. CONSTITUENT POWER AND CONSTITUTIONAL FORM (2007).
[3] For an excellent account of the radical differences between Kelsen and Schmitt, see Peter Caldwell, POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW (1997).
[4] Jan Komárek, Constitutional revolutions and the constituent power: A reply to Tushnet, 13(3) Int’l J. Const. L. (2015).
[5] Mark Tushnet, Constitutional revolutions and the constituent power: A rejoinder to Jan Komárek, 13(3) Int’l J. Const. L. (2015). The informal mechanisms used in Colombia and Venezuela during the 1990’s are clear examples of constitutional revolutions aimed at the removal of constitutional obstacles that prevented popular participation in the process of addressing the democratic deficits of their constitutional regimes. However, the objective was not to change an unamendable provision, but to enact a substantive replacement of the constitution in a way that the constitution did not consider.
[6] For an account of the debates that have taken place around the problem of presidential reelection in Colombia since the adoption of the Constitution of 1991, see Nicolás Figueroa, El debate sobre la reelección presidencial, in Stefan Jost (ed.), 20 ANOS DE LA CONSTITUCION COLOMBIANA: LOGROS, RETROCESOS Y AGENDA PENDIENTE (2012).
[7] Noah Feldman, David Landau and Brian Sheppard, Fixing Honduras, LOS ANGELES TIMES (June 07, 2011). Available at: http://articles.latimes.com/2011/jun/07/opinion/la-oe-landau-honduras-20110607
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