Constitution-making in modernity

Although the involvement of “the People” in the constituent foundations of existing liberal democracies is, as we have seen in the previous chapters, very contested from the historical point of view, this circumstance has not refrained actors and observers of constituent processes that have taken place during the last decades to sustain a discourse grounded on people's participation, inclusiveness, mobilization, and deliberation as a principal source of legitimacy and effectiveness of higher lawmaking (see, among many others, Eisenstadt et al., 2017; Elstub and Pomatto, 2018; Ginsburg et al., 2008; Hart, 2003; Klein and Sajo, 2012, pp.

Different contexts have arisen; thus, the discussion on the democratic conditions that must surround the constituent moment: to what extent does the popular constituent agency have to be vested with special channels of participation, different to those displayed in normal politics? Generally, it has been recognized that forms of popular participation had to be expanded well beyond ratification through a referendum on a product written by elites (Landemore, 2020, p. 180) and indeed various experiences have been recorded around the world in which members of the public (directly elected or through their leadership in civil society) or even citizens' assemblies composed of people chosen at random from the population, may participate in processes to set the agenda for constitutional negotiations, including the adoption of basic principles within which constitutional choice must occur (Choudhry and Tushnet, 2020, pp.

Such premises embed a movement that in some of those constituent workshops have been known as “new constitutionalism,” according to which, while admitting

“New constitutionalism” & constituent power 171 that in the past constituent power was expressed mainly by violence, revolutions, or impositions, in the twenty-first century and in the age of the consolidation of democracy, constitutional transformations should be oriented by the effective role of “the People” in the creation and mastery of the constitutional framework.¹

The association between constitutional drafting and a moment of special democratic sensibility characterized with the label of “new constitutionalism” was proposed within a Latin American context (Carbonell, 2003; Martinez Dalmau, 2009; Salazar Ugarte, 2013) and, particularly, within a Mexican context both while discussing the convenience of a new constituent moment during the celebration of the 1917 Mexican Constitution centenary, and during the drafting of the State Constitution of Mexico City (2016-2017). Such concerns, however, could be appreciated in other parts of the globe in spite of the fact that they may be expressed in other terms.²

Under the aforementioned perspectives, transformations in constitutional creations are likely to be triggered and coached by technological developments which allow a deeper involvement of a greater part of the population within specific and democratic contexts. Constitution-making in terms of participation in a fair process should not, thus, be the same as it was in the eighteenth century in the twenty-first century digital era (Rowe and Frewer, 2015; Suteu, 2015, p. 258). Such assumptions, on the other hand, would be handled both from a normative perspective (defending an ideal of people's special participation and deliberation while discussing the basic rules by which the society will be organized in the future) and from a descriptive perspective (arguing that such popular participation has been given in particular constituent processes that are fully analyzed).

However, the point that I wish to highlight from the outset is that most of such constituent processes theoretically dominated by the willingness to give the voice to the people through uncountable channels of participation have failed or are likely to fail. At least, they might be considered failed as patterns of constitution ­making developed under full democratic conditions and high standards of specific

political mobilization by the citizenry. As we shall see, the negative evaluation of those constitution-making experiences from the normative perspective is rooted in the course that the mentioned processes have taken. There are two main scenarios that may derive from the modern constituent initiatives:

1. on the one hand, from the complexity of a participative and deliberative pop­ular involvement while creating a new constitution in deepening democra­cies has resulted, after all, in the abandonment of the constitutional blueprint (the Icelandic case would be illustrative of that trend).

2. on the other hand, a specific and highly participative invocation of the constituent power has instigated a violent reaction on the part of the incumbent authorities in a manner that the proposed mechanisms of constitutional enactment reproduce the old patterns described in this book on coercion and abuses determining the constituent moment (the examples of Catalonia’s secessionist struggle and that of the movement for a new Chilean Constitution are clear examples of this point).

My idea is that, given the historical background on constitutional creation that I have previously portrayed, the failures of modern processes somehow committed to providing a sophisticated web of channels of citizenship participation are foreseeable: an intense popular participation seeking a constitutional transformation is hardly compatible with an open, calm, inclusive, and specific deliberation. A constitutional transformation, as we have seen, is devoted to the expulsion of the previous elite which had designed the constitutional structure to serve its needs of perpetuation. Consequently, the consolidation of the structure of a new power through other agents is not likely to be produced without harsh convulsions.

In a different vein, even in supposedly advanced constitutional democracies, the need for comprehensive constitutional change is usually triggered by some sort of cataclysm. In both Ireland and Iceland, the initiative to enact brand- new constitutions circulated in the midst of the financial collapse caused by the 2008 global crises. Such States did not have the resources, the institutions, or the political capacities to deal with the gigantic shock to their overgrown financial sectors (Tooze, 2018, p. 167). In more divided and authoritarian regimes, the 2008 crash also had constitutional consequences, as in some Arab countries, but the constituent impulses, disregarding their success or not, were accompanied by instances of violence and sacrifice of human life.

In Northern Africa and the Middle East, the initial abuses perpetrated by the established regimes nourished a bigger contestation that, except in the case of Tunisia, evolved in an ineffective constitutional change given an authoritarian regression (as in Egypt) or straightforwardly into civil war, chaos, and the failure of the State (as in Libya, Syria, or Yemen).

“New constitutionalism” & constituent power 173 constituent process. Even the case of Tunisia, which may be qualified as the most successful experience in that area regarding the transition towards a constitutional democracy, did not escape from the plague of serious upheavals and mortal victims at the beginning of the process (Eisenstadt, Carl LeVan, and Maboudi, 2017, pp. 57-58; Gardbaum, 2020, p. 144).

In the middle term between the inclusive and specific constituent experiences in Iceland or Ireland (though buried in Iceland and incomplete in Ireland) and the brutal scenarios for constitutional developments recorded in the Arabic world, would be situated some of the Latin American constituent episodes which, as I mentioned before, coined the expression “new constitutionalism” and paved the way to rethink the constituent process as a participative and deliberative instance.

In spite of the more or less honest theoretical efforts to see in constituent processes such as the ones displayed in Venezuela, Bolivia, or Ecuador opportunities to set out a constitutional framework grounded in an intense and popular mobilization (Martinez Dalmau, 2009, pp. 265-269), the truth is that the constitutional elaborations achieved in these States coincide with the formerly described vision of a constitution as the legal certification of the victory of one group over the others by coercive means (Brewer-Canas, 2007, p. 71). The replacement of a decision on the allocation of power by another (the definition of the material constitution according to my approach) entails, predictably, the eruption of violence in some of the phases that encompass the life of those constitutional systems: while tumults and deaths were given by the creation of the new constitutional orders in Venezuela and Bolivia, unrest and victims were counted in Ecuador in 2019 once President Moreno sought to consolidate his position in opposition to his antecessor and founder of the new constitutional order, President Rafael Correa.

The stalemate of the constituent process promoted by President Maduro in Venezuela with the creation of the Constituent Assembly in 2017 (with the less concealed intention to retain political power that the regime had lost through the supermajority gained by the opposition in the 2015 National Assembly elections) revealed that the fierce fight between the political groups was not over and, thus, that the new decision on the allocation of power had not yet been adopted.

Bolivia's constitutional evolution maintains some analogies with those described in Venezuela, in the sense that the assembling of a majority by a group until that moment excluded from power, combined with social turmoil, propels a new brand of constitutional configuration (the 2009 Political Constitution of the Multinational State) which is used by the newcomers to consolidate themselves in the State's institutional architecture. However, when the opposition finds the opportunity to seize power (as it did in November 2019 by sending President Evo Morales into exile), the effectiveness of the constitutional order designed by the previous hegemonic group is questioned and the shaping of a new constitutional structure, adapted to the new partisan interests, is envisaged.

The constitutional dynamic in both Venezuela and Bolivia shows another characteristic typically associated with the emergence of constituent power in modernity: the use of constitutional politics by a strong (but temporary) majority

which seeks to maintain its political predominance through the constitutional rules created under its auspices (Chambers, 2019, p. 1118). The cases mentioned reflect with remarkable precision the constitutional cycle described in the theory exposed in Chapter 2 of this book: the constitution as the legal correspondence to the assault on power performed by a given elite, by a faction, in a way according to which when some political cadres are replaced by others; such movement is also followed by a constitutional somersault. The formal constitution may be transformed, through regular or irregular means, because the underlying allocation of power, what I call the material constitution, has also been affected in its core.

Recent constitutional history in Chile is likely to evoke a different paradigm from those observed in Venezuela and Bolivia but, nevertheless, leading to a similar conclusion. While the need for constitutional change had been appreciated in Chile from the time of the transition to democracy at the end of Pinochet’s dictatorship, the Chilean case is one of the rare examples in which a new constitutional blueprint was not activated by a social or economic commotion. In addition, the constituent process was encouraged from above, from President Bachelet’s government, in a procedural plan able to capture all the concerns pointed out by the new constitutionalism approach: citizenry participation, pluralism, openness, inclusiveness, and deliberation. The result was that the Chilean constitutional-making process fell into a cul-de-sac, just as had happened in the experiences recorded among advanced European democracies. Citizenry responded to the government’s constitutional struggle with apathy, to the degree that in the following presidential elections, Sebastian Pinera won, having run on an electoral platform which rejected major constitutional changes. However, scarcely one year passed since Pinera took office before virulent riots exploded across the country, placing the demand for a new Chilean constitution at the centre of the agenda. Given the threat of an open revolution, Pinera had no alternative but to commit himself to foster another constituent process by calling for a plebiscite in 2020 in which the citizenry would decide if they would vote for the drafting of a new constitution.

The point that I wish to stress here, however, is that the uproar which broke out in the fall of 2019 caused a death toll of at least 34 people. Before, there had been any mortal victims and the constituent process was conducted in a civilized manner, popular mobilization for a new Chilean constitution was discrete. When protests turned into violent upheavals, however, the aspiration for a total constitutional change grew among the citizenry. It should be underscored, in a different vein, that none of the constituent processes developed in Latin America, including the Chilean one in the case that someday a new constitution is approved, would satisfy the normative test proposed in these pages: the “no victims rule.” In all these cases, constitutional transformations in some of their stages implied a cost in terms of human lives.

The constituent-making culture appreciated in Venezuela and Bolivia grounded in the subversion of constitutionalism by shaping new constitutions to suit selfish political agendas had been generalized in Africa as well (see Albert, 2019, p. 113). The use of constitutional politics to entrench the violent occupation of power by new elites has not only been regular during Africa's first three decades of independence, but it has also traced some of the more recent African constituent experiences. Thus is seen, for instance, in the constituent process in Kenya reflected in the 2010 Constitution which had its origins in the humanitarian crises unchained in 2007 when the former President Mwai Kibaki was declared the winner of the presidential election held in December of that year. According to Duncan Okubasu (2017, p. 331) in some African countries, constitutional politics are

appropriated by the ruling elites such that a constitution is important as formally legitimizing a regime and also for thwarting threats toward the regime.

In this chapter I am going to comment in more detail on some of the aforementioned constitution-making processes developed in the last decades to confirm the described oscillation of constitutional experiences between the specific (and tedious) participative frameworks that some liberal democracies have unfolded to establish new (and usually frustrated) constitutional arrangements, and the revolutionary instances that involve a disruption in the allocation of power and, consequently, an entire transformation of the constitutional system.

I shall begin in Europe and I shall finish in Europe. In the first and in the last cases I shall allude to a background which may be not considered "constitutional” since it clings on to international treaties: those organizing the European Union. In the next section I shall revisit a process already forgotten but, in its time, quietly discussed (though, and that was the problem, both within academic circles and within European political, economic, and administrative elites) regarding the replacement of the European treaties by the Treaty Establishing a Constitution for Europe. I conclude the narrative on recent appearances of the constituent power with another controversial invocation of European Union law: that related to the withdrawal of the United Kingdom from the European organization. Brexit, while debatable whether it is a constitutional transformation or not, deserves some considerations in the context of my descriptive and normative vision on constitution-making processes and, though it may sound a bit enigmatic concerning the United Kingdom, their relationship with violence.