Between Fact and Norm: Imagining Founding Moments in the Constitutional Nomos

The gap between specialists and the public in constitutional imagination, as noted above, is not so much about the discrepancy between theory and practice as about the role of the founding moment in the constitutional order.

Yet, this is not the only way that the founding moment may bear on the consti­tutional order. Rather, the above unidirectional, jurispathic relationship can be turned genuinely relational and j urisgenerative' when the focus of constitutional theory shifts from constitutional interpretation to making sense of the constitu­tional order as a political project. To disclose what this relational view means to constitutional theory, I first draw upon Cover's discussion of nomos and his view on the relationship between interpretation and meaning to lay the foundations for relating the founding moment to the constitutional order through narratives.

A. Beyond Interpretation: Constitutionalising

Founding Moments through Narratives

As I have suggested, constitutional theory is aimed at helping to make sense of the constitutional order as a political project. Interpretation is never an end in itself, but only part of the continuous collective effort to make sense of what it means by organising the political life of a particular political community as a constitutional order. As authenticity can never be exhausted by a particular interpretation,^[71] constitutional interpretation cannot be saved from the accusation that it is unauthentic for deviating from the constitution itself.^[72] Yet, it is in the never­ending pursuit of authenticity that the meaning of the constitutional order is also enriched and revealed through interpretation. In other words, making sense of the meaning of the political life under the constitutional order is embed­ded in the action taken in the quest for authenticity, namely, interpretation.^[73] Thus, persuasion is integral to the political action taken by individual citizens to approach authenticity through interpretation.^[74] In sum, the interpretive charac­ter of constitutional theory is only the surface manifestation of the unresolved but productive tension between interpretation and authenticity that makes persua­sion necessary and keeps the meaning of the constitutional order alive.

Seen in this light, interpretive settlement is provisional at best as it itself is not free from the question that it fails to represent the identity/authenticity of the constitution.^[75] And the pathology of contemporary constitutional theories lies in the fascination with a final interpretation through the correct method without keeping the meaning of the constitutional order in sight.

According to Cover, the common practice of legal interpretation that focuses on how to apply legal rules and other precepts to individual cases correctly is prob­lematic for the discovery of the meaning in law.^[77] Of the practice of constitutional and legal interpretation, Cover observed that the official agent of interpreting the law (the judge in most cases) is tasked with bringing finality and authoritativeness to the legal order of the modern state.^[78] To achieve this goal, the agent backs up his interpretation of the legal order with discourse and force when necessary.^[79] Obviously, force is disruptive to the pursuit of constitutional meaning when it is invoked to put paid to the debate over the meaning of the constitutional precepts concerned in the public sphere.^[80] Besides, Cover further noted that facing the reality of legal pluralism, the judicial discourse gravitates towards objectivity and universalism in the name of neutrality for fear of being seen as taking sides. As a result, ethos and particulars pertaining to individual cases, which give meaning to legal precepts, are obscured in the interpretive gravitation towards objectivity and universalism.^[81] Modalities in theories of constitutional interpretation fail to get to grips with the root cause of this ‘j urispathic’ character of the common practice of constitutional interpretation.^[82] Mistaking authority for persuasion, interpretive modalities do not help very much with the settlement of controversial constitutional issues.^[83]

Alternatively, Cover conceived of the law and the constitutional order as not only existing in but also envisaging a whole world, which Cover called a ‘nomos’.^[84] A nomos is the normative universe we inhabit.

The role of narratives in building a constitutional nomos figures prominently in the relationship between interpretation and the meaning in law as conceived by Cover. Appealing to the idea of commitment, Cover located ‘[t]he transformation of interpretation into [constitutional] meaning’ in the moment ‘when someone accepts the demands of interpretation and, through the personal act of commit­ment, affirms the position taken’ ^[91] This is more than consent to or acceptance of a particular rendering of the constitutional ‘text’, whether it is written, oral or

social.^[92] ‘Such affirmation entails a [unique] commitment to projecting the under­standing of the norm at work in our reality through all possible worlds onto the teleological vision that the interpretation implies.'^[93] The creation of constitutional meaning thus requires ‘the objectification of that to which one is committed'.^[94] In Cover's view, this can only be made possible by telling ‘a story of how [the consti­tution], now object, came to be, and more importantly, how it came to be one's own', namely, a narrative.^[95] Narratives operate as the catalyst for persuasion by ‘providing] resource for justification, condemnation, and argument by actors within the group, who must struggle to live their [constitution]’.

Through the lens of ‘Nomos and Narrative' the constitutional order, which is the reification of the political project of citizens living as a community, turns out to be more than the combination of the documental constitution and its supporting institutions. It is a nomos in which citizens take part in the constitutional project and jointly give meaning to it. To put it differently, to be a constitutional nomos, the constitutional order needs to stand for what citizens aspire to and commit themselves to. Notably, citizens find themselves in the constitutional order not only through their elected representatives or institutions and procedures but also through narratives concerning the birth and growth of the constitutional order.^[98] Either by entering into an individual dialogue with existing narratives about the constitutional order or by giving their own account of it, citizens partake of the construction of the constitutional nomos. On this view, the meaning of the consti­tutional order cannot be identified with the interpretation of constitutional norms, but rather materialises in the ongoing jurisgenesis in which ‘stories of peoplehood' are told to carry out the constitutional project amid the tension between inter­pretation and authenticity.^[99] The genuine meaning of constitutional norms can only be fully grasped when they are read together with the narratives concerning their creation, contestation and evolution in the life of the whole constitutional order. Thus, neither the normative purpose nor the underlying principles or values suffice to substantiate the meaning of constitutional norms as they are abstracted from the context in which the meaning is contained.

Conceived of in this way, the founding moment is related to the constitutional order not just as fact, as the historicists claim, or as norm, as the normativists assert; rather, it is to be narrated in relation to the ongoing constitutional project with an eye to satisfying the longing for identity/authenticity. As noted above, the founding moment exists as historical occurrence in most cases. Recognising this fact does not necessarily result in commanding fidelity from the constitutional order, as some historicists suggest; instead, the relationship between it and the resulting constitutional order is mediated by narratives.^[100] Narratives about the founding moment or, rather, the founding episodes are told not to define constitu­tional norms or settle interpretative disputes. Instead, they are invoked by citizens themselves to invite their fellow citizens living in the same constitutional order to come to terms with its genesis and reflect upon the constitutional project itself. 'lhe flawed constitutional order as it is can find redemption by engaging with its own growth trajectory from birth through the flow of fresh narratives.^[101] For this reason, relating the founding moment to the ongoing constitutional order does not surrender the present generation’s political destiny to the dead hand of the founding fathers and mothers. On the contrary, since the founding moment is related to the constitutional order through narratives, the constitutional nomos incorporates and reconstructs the founding moment by generating new narratives about the founding moment. Under the relational view, reciprocity characterises the relationship between the founding moment and its ensuing constitutional order. Giving their own narratives, citizens of the here and now make decisions on the meaning of the life of the constitutional order after the founding moment, but at the same time keep the constitutional project moving by engaging in constant persuasion as they take such decisions in anticipation of disagreement from their fellow citizens.^[102] As a result, the relationship between the founding moment and the constitutional order is genuinely relational. It is no longer unidirectional as the stances of disregard, fidelity and absorption connote.

With intermediary narratives, the relational view is also set apart from the normativist stance. Notably, narratives about the founding moment echo the normativist view of the founding moment as they are not aimed at re-enacting or remembering the birth of the constitutional order. Rather, they are employed to bring the foundational values and principles to the fore so that the constitu­tional nomos can thus continue on these normative pillars and evolve alongside the society without being overwhelmed by the vicissitudes of time and fortune. Yet, narratives concern not only normative purpose or foundational values and prin­ciples. A successful narrative must be coherent to be persuasive.^[103] It is conducted in a structure of unity filled with subjects, events and conflicts.^[104] Narratives speak both to the political identity of citizens who find themselves in the constitutional nomos and to the identity of the constitutional order itself.^[105] Under the relational view, the founding moment is not only an attributed source of values or principles, but also part of the quest for identity in the constitutional project.

Situated in the discovery of the meaning of the constitutional order medi­ated by narratives, the question of the founding moment in constitutionalism is freed from the grip of specialists in constitutional interpretation. As the found­ing moment is no longer related to the constitutional order only for the sake of the interpretation of constitutional norms, it cannot be mastered by methodol­ogy. Rather, its meaning is intertwined with that of the whole constitutional order, which emerges from and evolves with refreshing narratives from citizens, not the monographs on interpretive methods or modalities from law professors.^[106] Instead of leaving the question of the founding moment in constitutionalism in the hands of specialists, citizens relate the founding moment to the constitutional order on their own terms through the medium of narratives.

Under the relational view, the founding moment is brought into contact with the constitutional order through narratives. The founding moment sits between fact and norm instead of being characterised either as fact or as norm, as the historicist and the normativist views suggest. The question of the found­ing moment in constitutionalism raises fundamental issues concerning the meaning of the constitutional order beyond the interpretation of constitutional norms. The constitutionalisation of the founding moment by virtue of narratives suggests rethinking the constitutional order as a nomos, at the core of which is the construction of identity.

B. From Foundation to Invigoration: Founding Moments, Constitutions and the Constituent Power

At the beginning of this chapter, I noted that the constituent power and the found­ing moment, both of which are the essentials of constitutional genesis, share some characteristics in constitutional theory. One of them is that both stand at the inter­face of fact and norm.^[107] Another concerns their relationship with the constitutional order. As I have argued in the foregoing sections, narratives bring the founding moment into contact with the constitutional order in a way that suggests that it sits between fact and norm instead of being either fact or norm. In terms of the close correspondence between the founding moment and the constituent power, what is the image of the constituent power entailed by the narratives-mediated constitu­tionalisation of the founding moment? To answer this question, a closer look at the relationship between the constituent power and the constitutional order will help.

The constituent power and the constitutional order are conceptually distinct.^[108] The former gives birth to the latter, while the latter only changes within the deci­sions made by the former. As a corollary, another conceptual distinction is drawn between the constituent power and the constituted power.^[109] Viewed thus, the constituent power tends to be associated with action, free will, and freedom; the constituted power is part of the legal order underpinned by rules and other precepts.^[110] Acting on the constituted power is not an exercise of free will in full, but is instead a disciplined application of legal provisions concerned aimed at an ordered liberty.^[111] That said, the constituent power is not a kind of action to be taken lightly. To the existing constitutional order, the constituent power means disruption, even destruction, in the sense that the latter is invoked to break free of the former's grip. The constituent power can only engender a new beginning by putting the existing constitutional order to death.

Due to its duality of freedom and destruction, the concept of constituent power is unsettling. From the internal perspective of the constitutional order, it can only be remembered, but should not be conceived. It needs to be suppressed to keep the constitutional order going. In contrast, when looked at from the external point of view, the constituent power is the symbol of freedom, the hope for liberation from the incorrigible existing regime, and the agency to bring about a pristine constitutional order.^[112] As a result, uneasiness usually looms over how to charac­terise incidents that disrupt the standing constitutional order.^[113] Should an instance of civil disobedience or rioting be seen as the sign of the resurrected constituent power?^[114] At what point in time can this characterisation be legitimately deter­mined? Or should disruptive acts of this sort instead be taken as law-breaking behaviours that warrant punishment and even suppression? How about a military coup d'etat?^[115]

This is not the place for me to dwell on the various positions on the constitu­ent power. Yet, the narratives-mediated constitutionalised founding moment, as suggested above, also points to an alternative reading of the constituent power.^[116] I have noted that by way of narratives, the founding moment contributes to the constitutional nomos as it is not only associated with the foundational values and principles but also marks the beginning of the growth trajectory of the consti­tutional order. Moreover, the founding moment that sets out the jurisgenerative constitutional project is also the time when the constituent power asserts itself. Thus, narratives about the founding moment are stories about the invocation of the constituent power too. In this way, when the founding moment interfaces the constitutional order through narratives, the constituent power is also being narrated in relation to the jurisgenesis of the living constitutional nomos.

What is important about the duality of narratives on the founding moment and the constituent power is that narratives are not told to remember the past and commemorate landmarks at constitutional genesis; rather, narratives themselves are constitutive of the constitutional nomos. They substantiate the rules, norms, institutions and other constitutional precepts with meaning that makes the consti­tutional order a nomos that citizens inhabit. Narratives about the genesis of the constitutional order also help with the reformation of the imperfect constitutional order by bringing the whole constitutional life into focus in the constant reflec­tions on the state of the constitutional order.^[117] More importantly, narratives make the democratic pursuit of the meaning of the constitutional project possible. In other words, constitutional genesis is not a mere past of the constitutional order. It continues to work on the present constitutional project by way of narratives about it. Thus, with narratives that bring the founding moment into contact with the ongoing constitutional order, the constituent power morphs from the generative force that brings forth the constitutional order into the rejuvenating energy that breathes new life into the constitutional project. The constituent power not only brings the constitutional order into existence but also sustains the constitutional nomos by way of narratives about the founding moment.^[118] In a word, the constitu­ent power is reincarnated in the narratives-mediated constitutionalised founding moment.

I hasten to add that the image of the constituent power emerging from the narratives-mediated constitutionalised founding moment does not suggest that the constituent power can or should be domesticated. As a conceptual construct, the constituent power may come in many guises in reality.^[119] Nevertheless, the reincarnation of the constituent power in the narratives-mediated constitu­tionalised founding moment does point out a new temporal orientation of the constituent power. From the internal perspective of the constitutional order, the conventional wisdom has it that the constituent power stays in the past or resur­rects in the future only to end the present constitutional order. On this view, the constituent power has no place in the present jurisgenerative process under the constitutional nomos.^[120] It is for this reason that scholars who take the external view of the constituent power charge that the constitutional order is aimed at neutralis­ing the constituent power by co-opting it.^[121] Unless viewed from the external point of view and regardless of the disruptive effects it may entail, the constituent power is not oriented towards the present.^[122]

Yet, the reincarnation of the constituent power in the narratives-mediated constitutionalised founding moment means that the constituent power continu­ously bears on and reinvigorates the constitutional n omos through the narratives about the genesis of the constitutional order. The constituent power as the symbol of freedom is no longer confined to the foundation of the constitutional order; rather, this alternative image of constituent power re-emerges in the invigoration of the constitutional project. Beyond foundation and destruction, the constitu­ent power that is reincarnated in the constitutionalised founding moment works towards the maintenance of the constitutional order. Reincarnated in the narra­tives about the founding moment, the constituent power is not only remembered as a thing of the past but also relived in the present tense.

IV.