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The Making and Breaking of Constitutions

By Raphaël Hadas-Lebel
With the United States and the United Kingdom on the verge, if not already in the throes, of constitutional crises, understanding the dynamics of constitutional change at times of political tumult has become an urgent necessity. A new book by renowned legal scholar Bruce Ackerman offers a fresh look at how constitutions evolve and break down over time.
US Constitution on rustic wood surface.

Longstanding constitutions are facing unprecedented challenges across the democratic world. And nowhere is the assault on constitutional principles and the rule of law more pronounced than in the world’s oldest democracy, the United States, where President Donald Trump is trying to recast the political order in his own authoritarian populist image.

Trump’s strategy is not unique. Since the founding of the American republic, most presidents have claimed to have a mandate from the people to alter or even repudiate the legacy of previous administrations, including their understandings of the Constitution. Early precedents for radical, president-initiated institutional change can be traced back to administrations as diverse as those of Thomas Jefferson and Andrew Jackson.

Between 1993 and 2018, Yale University law professor Bruce Ackerman detailed this history in his fascinating trilogy We the People, which not only fueled a healthy controversy but also revolutionized how we view the US Constitution, its origins, and its evolution. By examining how different political regimes have won legitimacy in the US over time, Ackerman shows that constitutional changes have not always occurred through formal amendments adopted under Article V of the Constitution.

In addition to amendments that have been approved by a two-thirds majority in both chambers of Congress and ratified by three-quarters of the states, there have also been constitutional changes introduced by presidents through a dynamic and less formal process. And, according to Ackerman, these have followed a familiar pattern: having expressed the will to change the constitutional status quo, presidents have pressed for specific proposals, waged the necessary political fight, and then achieved a certain level of consolidation across the different branches of government.

In the Reconstruction era after the Civil War, for example, Republicans needed to ensure that newly emancipated slaves in the South would remain free, so they handed over to federal institutions the prerogative to speak in the name of “We the People.” President Franklin D. Roosevelt did much the same when he launched his New Deal and other measures to combat the Great Depression.

During both Reconstruction and the New Deal era, the constitutional revolutions launched by Presidents Abraham Lincoln and Roosevelt faced repeated challenges, particularly in the federal courts, to the actions that they were taking. After long, bitter political fights, both leaders (and their successors following the example Lincoln and Roosevelt set) demonstrated remarkable constitutional creativity in order to secure their policy priorities.

For his part, Roosevelt established longstanding precedents with his “landmark statutes,” which proved more effective than formal constitutional amendments (which he had used previously to repeal prohibition) when it came to implementing the New Deal’s economic and social measures. When the Supreme Court threatened Roosevelt’s legislation, he did not hesitate to propose increasing the number of justices on the Court. Throughout this period, his legitimacy to act in the interest of his agenda was reinforced by the communications revolution, which allowed him to project his leadership into every home through radio broadcasts.

A generation later, President Lyndon Johnson resorted to similar tactics in his effort to establish the “Great Society” and push through civil-rights legislation. While it had taken a constitutional amendment (the 24th) to ban poll taxes in federal elections, Johnson was able to apply the same ban to all types of elections through statutory legislation (the 1965 Voting Rights Act). For similar reasons, President Ronald Reagan had no need for a constitutional amendment when he wanted to repeal parts of Roosevelt’s New Deal.

In his new book, Revolutionary Constitutions, Ackerman offers a bold interpretation that is by no means shared by all constitutional scholars: that the roots of today’s political crisis in the US lie in Roosevelt’s own refusal to codify the New Deal revolution constitutionally, through formal amendments establishing fundamental principles of economic and social equality. That refusal, Ackerman argues, “continues to haunt twenty-first-century America as it confronts Trump’s demagogic parody of government by the People.” The broader lesson is that after a sustained period in which a political movement succeeds in exercising control over all three branches of the US government, the chief executive’s authority to speak for the people begins to carry as much weight as a formal Article V amendment.

In Revolutionary Constitutions, Ackerman wonders whether this feature of the American constitutional order is unique. In search of an answer, he extends his original inquiry to eight other countries across three continents. In Asia, he examines the constitutional histories of India, Burma (Myanmar), Israel, and Iran. In Africa, he looks to South Africa. And in Europe, he sets his sights on France, Italy, and Poland. In each case, the outcome under consideration represents just one possible pathway to a functioning constitutional order; many other models exist, and Ackerman promises to take those up in a future work.

Despite their many differences, the eight countries share a common experience. In each, revolutionary leaders – Jawaharlal Nehru in India, Nelson Mandela in South Africa, David Ben-Gurion in Israel, Ruhollah Khomeini in Iran, Charles de Gaulle in France, Alcide De Gasperi in Italy, Aung San Suu Kyi in Myanmar, and Lech Wałęsa in Poland – led a sustained struggle against the old order. They then succeeded in translating that effort into durable institutions, through what Ackerman calls “the constitutionalization of revolutionary charisma.”

Ackerman’s subject thus provides a set of case studies about how revolutionary constitutionalism emerges. He breaks the process down into four phases: mobilized insurgency, constitutional founding, succession crisis, and consolidation. During the insurgency, the shared experience of political struggle establishes a solid bond between charismatic leaders and their followers, thereby legitimatizing the constitution that is established in phase two. But as the revolutionary legitimacy of the founding fades over time – and especially over generations – the regime confronts a legitimacy crisis. Finally, various crises over succession (usually involving the executive and the judiciary) can eventually lead to normalization of revolutionary politics.

And so, in the case of India – the world’s largest constitutional democracy – Ackerman recounts how Nehru, with the help of his Indian National Congress, first mobilized a massive popular movement in support of national independence. Despite a difficult succession crisis after Nehru’s death, the Constitution of 1950, along with the Supreme Court, has reliably provided the legitimating structures necessary for democratic governance – even through multiple emergency periods during which parts of the constitution were suspended.

But India has yet to finish the four-phase process. Its constitutional future will depend on whether its current prime minister, Narendra Modi of the Hindu-nationalist Bharatiya Janata Party, succeeds in altering the country’s founding principles. Similarly, like Nehru and the Congress party, in South Africa Mandela and his African National Congress (ANC) converted revolutionary charisma into constitutional authority. But South Africa has yet to overcome even its succession crisis.

Israel and Iran are a paradoxical pair for comparison, but, as Ackerman notes, both Ben-Gurion and Khomeini were charismatic revolutionary leaders who forged a national identity. Khomeini made it a priority to establish a “Gaullist” constitution, modeled on that of the French Fifth Republic. This makes sense given that one of his advisers, the law professor Hassan Habibi, drafted the constitution of the new Islamic Republic while exiled in a suburb of Paris.

By contrast, Ben-Gurion, whose priority in 1948 was to fight a war of survival, convinced the Knesset to defer the drafting of a constitution to a later date. As a result, the newly formed state adopted a pragmatic approach that authorized the Knesset to enact Basic Laws gradually over time. Demonstrating a deep knowledge of Israel’s constitutional evolution, Ackerman explains how a system of checks and balances emerged through the adoption of the 1992 Basic Law on Human Dignity and Liberty and the revolution in judicial review enacted by Chief Justice Aharon Barak. These institutional structures, while fragile, remain in place today.

But Ackerman’s assessment of the balance of powers under the Iranian constitution is slightly less convincing. Most important, he seems to underestimate the overweening superiority of the office of the supreme leader, now held by Khomeini’s successor, Ali Khamenei, over that of the duly elected president, currently Hassan Rouhani.

In another remarkably informed chapter of the book, Ackerman examines the French model upon which the Iranian constitution was based. We read the story of how de Gaulle, following an initial failure in 1946, secured a sweeping victory for his proposed constitution in 1958. Yet, here, it is not clear that Ackerman’s four-stage framework really applies.

After de Gaulle successfully constitutionalized his vision of a strong presidential – or semi-presidential – system, his successors did not face crises of legitimacy. Even if France’s representative democracy has been challenged by the “yellow vest” protesters, and a few politicians have advocated a return to a purely parliamentary regime, the Fifth Republic remains deeply entrenched today, and is poised to be the most enduring democratic regime in France’s history.

The same cannot be said for the semi-presidential system introduced in Poland by Wałęsa. That proved to be a failure, because, as Ackerman explains, the constitutional structure gave rise to disastrous divisions within the Polish leadership.

Ackerman does not devote much space to the lengthy development of Britain’s constitutional order. The British case fits with a different paradigm that he intends to discuss in his next book, which will be about political systems built by “pragmatic insiders” rather than “revolutionary outsiders.”

Still, Ackerman does touch on the referendum that brought about the Brexit debacle. He argues, persuasively, that such instruments represent a dangerous threat to parliamentary systems based on tradition, or what he calls “establishmentarianism.” “Rather than allowing the time-tested parliamentary leadership the chance to hammer out sensible solutions to pressing problems,” Ackerman writes, “referenda open the way to demagogic appeals to ordinary citizens who lack the time and knowledge required for such fateful choices.” Needless to say, the turmoil unleashed by the Brexit vote has fully confirmed this assessment.

Ackerman also points out that in the British parliamentary system, there is little room for judges to invalidate legislation that they find contrary to undefined “constitutional norms.” Nonetheless, he makes a distinction between “hard” and “soft” judicial review. By applying its understanding of constitutional precedents to concrete cases that come before it, the British judiciary can “play an important, still secondary function within the evolving system.”

Here, Ackerman’s assessment turns out to have been rather prescient. On September 24, the UK Supreme Court ruled that Prime Minister Boris Johnson’s decision to prorogue (suspend) Parliament in the lead-up to the October 31 Brexit deadline was unlawful. There is no telling how the current crisis will end; but the role played by the judiciary may turn out to have been anything but “secondary.”

Can Ackerman’s comparative investigations shed new light on America’s looming constitutional crisis under Trump? From his case studies, it is clear that revolutionary constitutions have a lot in common, but also much that makes them unique. What is needed, then, is a deeper understanding of the specific public debate confronting each country at crucial points in its constitutional evolution. “America,” Ackerman notes, “is currently divided between two competing movements, with conservative Republicans and progressive Democrats pushing for radically different futures, while centrists shake their heads in disbelief.”

The historical record suggests that the confrontation between these two forces could generate many different types of constitutional crisis; but it will most likely involve an open clash between the executive branch and the judiciary. If the Democrats carry both houses of Congress in the 2020 election, they could end up on a collision course with the conservative-leaning Supreme Court, which is likely to strike down ambitious progressive legislation. That possibility certainly calls to mind Roosevelt’s “court-packing” struggle in 1937.

On the other hand, the Supreme Court’s decision in 2012 to uphold the Affordable Care Act (Obamacare) shows that accommodation is always possible. But if Trump wins re-election, challenges to Roe v. Wade (the 1973 ruling that effectively legalized abortion) and key legislative features of the civil-rights revolution will confront the Court with a moment of truth. Would it be up to the task of preserving the necessary balance between US institutions?

To steer the US back toward the formal constitutionalism that Roosevelt abandoned, Ackerman has proposed a “popular sovereignty initiative,” whereby a newly re-elected president would be authorized to “propose amendments that, if approved by the House and Senate, shall be placed on the ballot … at the next two presidential elections.” If those constitutional amendments receive at least 60% of the popular vote on both occasions, they would enter into force, just as if they had passed through the Article V process.

Ackerman harbors no illusions that his proposal will be adopted in today’s fraught political climate. Nonetheless, his creative exploration of constitutional regimes around the world furnishes fresh insights into the challenges confronting not just the US, but most of the world’s democracies. Whether we can devise effective remedies for today’s conflict-driven malaise is an open question. In these troubled times, we need bold intellectual endeavors like Ackerman’s more than ever.

Raphaël Hadas-Lebel is Honorary Chamber President of France’s Conseil d’État and a former professor of constitutional law at Sciences Po.

Published Date: Friday, October 4th, 2019 | 08:00 AM

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