Fact or Norm? Founding Moments Envisaged in Constitutional Theory
As the question of the founding moment in constitutional theory concerns how to fit historical facts into the conceptualisation of a normative order, I follow in the footsteps of those who have utilised the antinomy between fact and norm as the analytical framework for manifold legal and constitutional issues.[25] Situating theories of the founding moment in constitutionalism in this antinomy, I begin with a discussion of historicist theories in which the founding moment is regarded as fact.
Unveiling the interpretive character of constitutional theory, I note that historicist theories oscillate between disregard and fidelity in their attitude towards the founding moment as a matter of fact. Then I turn to the normativist strain. In contrast to the historicist oscillation between disregard and fidelity, normativ- ists effectively equate the founding moment with the original values that underlie constitutional provisions. After disclosing the historicist and normativist views of the founding moment, I discuss why neither is satisfactory as both reflect the gap in constitutional imagination that contemporary constitutional theories of the founding moment help create.A. When Founding Moments are Historical Facts Only: Disregard, Fidelity and the Identity of Constitutional Theory
A new constitutional order is mostly established in response to the failure of the existing regime. The founding moment of a new constitution is thus a moment of crisis when the old constitutional order breaks down as a result of national liberation movement, civic uprising, military defeat, economic breakdown or other precipitous events.[26] Antipathy towards foreign or colonial regimes,[27] resistance against repressive rulers,[28] anger at failed war plans and strategic blunders,[29] discontent with socio-economic justice,[30] and other socio-psychological responses are usually recorded in crises leading up to the founding of a new constitution.
To be sure, these reactions to the tumultuous situation in which a new constitutional order originates are not the only occurrences in the founding moment that are recorded. The debates over how to respond to the failure of the old regime, the wrangling over the process and substance of the new constitutional order, and the tabulation of the votes cast in the convention or the referendum on the adoption of the new constitution are also part of the historical record of the founding moment of a constitutional order.[31] All of them are fact. Thus, the accuracy of how they are documented and presented underlies the study of the founding moment as a matter of fact.Driven by the pursuit of historical truth and its accurate representation, scholars of the founding moment dig deeper and deeper into the details of its constitutive episodes. On this view, the founding moment is a historical object to be faithfully represented.[32] Yet, the accurate, specific, comprehensive representation of the founding moment does not tell us much about the relationship between the founding moment and its ensuing constitutional order. Instead, it is a question of how the founding moment as a matter of fact is seen in the eyes of constitutional theory, raising the question of the identity of constitutional theory.
The task of constitutional theory is to provide a language that gives expression to the political life under the constitution.[33] To make sense of the constitutional order as a political project is what constitutional theory is all about. Interpretation (vis-a-vis explanation) underpins the enterprise of making sense of the constitutional order.[34] Noticeably, one defining character of contemporary constitutional theories is the fascination with the question of what norms in the constitutional ‘text’, which extends beyond the codified constitutional document, mean.[35] This predilection for interpreting norms is not without reason, especially in light of the new frontiers of constitutional scholarship.
Studies of constitutional orders have long extended beyond the exegesis of the constitution to issues about how constitutional norms are implemented, what explains the gap between precept and practice, the extent to which the practice has displaced or amended the norms etc.[36] Yet, none of them can be addressed without confronting the question of what constitutional norms mean. For example, the question of how constitutional norms are implemented is predicated on the cognisance of what to implement. This obtains only when the radius of what constitutional norms stipulate has been determined through interpretation. Interpretation remains indispensable to constitutional studies that centre on the explanation of the gap between the law in books and the law in action too. The reason is simple: if the law in books is unknown, how can we even raise the question of why there is variance between it and the law in action? What the law in books stipulates only becomes clear as a result of interpretation.[37]I hasten to add that nothing I have said so far suggests that interpretation of constitutional norms is the only legitimate component or the most important characteristic of all theoretical studies of the constitution. Instead, a quick survey of the recent literature on constitutional scholarship will reveal that constitutional theory has extended beyond the matter of interpretation.[38] Nevertheless, the foregoing two examples indicate that interpretation of constitutional norms in the text constitutes the sine qua non of constitutional theory.[39] When this interpretive core is revealed, the stance of contemporary constitutional theories towards the founding moment as a matter of fact also transpires.
Considered fact, the founding moment is not necessarily integral to constitutional theory as the constitutional status of the founding moment depends on the theoretical position on the relationship between fact and constitutional interpretation.[40] To put it differently, contemporary constitutional theories oscillate between disregard and fidelity with respect to the historical founding moment.
To some, constitutional interpretation amounts to a function of the system of constitutional norms as exemplified in Hans Kelsen's pure theory of law. Under this view, there may be disagreement on whether the focus of emphasis should be on individual constitutional provisions or on the structural relationship between them. Nevertheless, textualists and structuralists share the belief that they confine their determination of the meaning of constitutional norms within the normative system without taking fact into consideration. To be clear, text and structure are not the only constituents of the system of constitutional norms; judicial interpretations of the constitution are also widely considered part of the normative system.[41] However, standing as historical event instead of legal precedent, the founding moment is disregarded by those who adopt an internal view of constitutional interpretation, regardless of whether they take a Kelsenian purist stance or not.[42]On the opposite end are those who take the view that fact is not only a component of interpretation. Interpretation of constitutional norms cannot be legitimately rendered without receiving guidance from fact. On this view, the founding moment as fact is indispensable to the exercise of constitutional interpretation as well as to the deciphering of the constitutional order in practice. In contemporary constitutional theories, the foremost advocates for reading constitutional norms in light of the founding moment are those dubbed originalists.[43] Among the myriad facts of the founding moment they take into consideration, it is those pertaining to the adoption of constitutional provisions that interest them most. Or, to put it in a slightly exaggerated way, the whole historical record of the founding moment is examined only to determine the content of constitutional norms.[44]
Notably, originalism is not the only way to take account of the historical facts of the founding moment in the interpretation of constitutional norms.[45] Some constitutional scholars cast their eyes beyond constitutional norms in their interpretation of the constitutional order.[46] Even so, what theories in this strain of the historicist stance have in common is the view that the founding moment as historical fact provides the key to the status quo of the constitutional order and the guidance on the way forward.[47] When the founding moment as historical fact is considered in the interpretation of constitutional norms, it is not only one of the many facts to be taken into account.
It is given a special status, standing out from other periods of time. This backward-looking attitude results from the special interpretive character of constitutional theory.[48] Framed within a progressive, linear temporality, constitutional interpretation cannot do away with the concept of authorship.[49] However, driven by the anthropomorphic characterisation of the constitutional order, authorship becomes a conceptual framing of interpretation and is further perceived as the authenticity and primacy of the original intent of the attributed author of constitutional norms.[50] As a result, the founding moment as a matter of fact is not only essential to the interpretation of constitutional norms. The relationship between fact and interpretation becomes one of fidelity. Originalists are just exemplary of those who hold the relationship between the historical founding moment and constitutional norms to be one of fidelity.[51]B. What if Founding Moments Resolve into Constitutional Norms: A Mere Matter of Interpretation
While the founding moment comprises historical occurrences, it may or may not appear as fact in the eyes of constitutional theory. Just as the Ackermanian constitutional moment is more akin to conceptual construction than historical reality,[52] the founding moment may stand as norm instead of fact to its ensuing constitution. This is what I call the normativist view of the relationship between the founding moment and the constitutional order.
As I have noted above, virtually all constitutional orders have their own historical founding moment. In contrast to historicists, normativists regard the historical events, institutional innovations, prescriptive rules or political actions at the founding moment as the embodiment of normative principles and values.[53] What matters to constitutional theory is not that which actually happens at constitutional founding; instead, it is what lies beneath or behind these historical occurrences that interests constitutional theorists.
Through the normativist lens, reading the founding moment is not aimed at digging out some hidden historical fact about constitutional founding that may influence constitutional interpretation. Rather, the founding moment is explored in order to extract the fundamental values and normative principles from the historical episodes that take place at constitutional founding.[54] I emphasise that it is in the values and principles, not the episodes, that normativists are interested. Reading the founding moment in this way is not so much the discovery of historical facts as the interpretation of constitutional norms. Thus, studies of the founding moment become part of constitutional interpretation. Both the founding moment and the constitutional order are turned into the objects of an integrated interpretive activity.[55]Once the fact that both the founding moment and the constitution are incorporated into one comprehensive interpretation of the constitutional order is laid bare, the role of the founding moment in constitutional interpretation naturally transpires. As a norm, the founding moment cannot be taken at face value, but is rather to be viewed as the placeholder of the values and principles that have motivated the rejection of the old regime and further effected the institutional responses as embodied in the new constitution.[56] Yet, with the translation of the principles and normative values at the founding moment into the underlying values and principles of positivised constitutional norms,[57] the relationship between the founding moment and the resulting constitution is also fundamentally transformed under the normativist view. What Jed Rubenfeld calls the ‘paradigm case interpretation'[58] illustrates such a transformation.
Under the paradigm case approach to constitutional interpretation, reading a constitutional provision in light of the particular issue its framers intended to tackle at the founding moment, which Rubenfeld calls the paradigm case, is aimed at correctly identifying the purpose that is to guide its application to the case at hand. The founding moment and its paradigm case are thus treated as the primary illustration of the legislative purpose.[59] As reading the founding moment is pivoted to determining the purpose of positivised constitutional norms, the founding moment is absorbed into the post-founding constitutional order itself, in that it resolves into the exercise of constitutional interpretation aimed at discovering the values and principles connoted by the purpose of constitutional norms.
If my observation is correct, the question of the founding moment becomes a matter of the interpretation of constitutional norms through the lens of normativ- ists. As a result, the question of the founding moment seems to become part of the debate over interpretive methodology. Viewed thus, the normativist view of the founding moment comes close to the historicist stance that maintains the founding moment commanding fidelity from the constitution, as both reflect the variations on the method of constitutional interpretation.[60] Taken together, the significance of the founding moment to its ensuing constitutional order appears to be a function of stance-taking or methodological competition in the exercise of constitutional interpretation, regardless of whether it is considered fact or norm.
C. Founding Moments Misconceived: A Gap in Constitutional Imagination
My discussion of the historicist and the normativist view of the founding moment shows that their contrasting stances resolve into different methods of interpretation. Yet, this does not mean that the debate surrounding the founding moment is nothing more than a storm in a teacup among constitutional scholars. Rather, an investigation of how the inevitable imaginary of constitutional authorship is reflected in the historicist and the normativist stances towards the founding moment discloses a gap in constitutional imagination and the problem with contemporary constitutional theories.[61]
As I have noted above, the historicists look to the founding moment as the source of fidelity because of its special status in the course of constitutional development. It is regarded as the moment in which the constitutional order is authored, or rather brought into being. On this view, constitutional authorship is reified in the historical founding moment and controlling, demanding fidelity from the future generations.[62] In contrast, the normativist stance towards the character of constitutional authorship is much less straightforward.[63] Through the normativist lens, the founding moment resolves into constitutional norms inasmuch as it is translated into normative purpose. The nature of purpose distinguishes normativ- ists from fidelity-oriented historicists with respect to constitutional authorship. It is noteworthy that normative purpose is different from the ‘context’ of which interpretation of constitutional norms is supposed to take account: the former is fixed, whereas the latter is changing in nature.[64] I hasten to add that a fixed normative purpose does not necessarily lead to it being inflexible. Quite the contrary: unlike text, purpose is made abstract and general to accommodate changes in context.[65] With respect to the constitution, the purpose of positivised norms is fixed at constitutional founding, but their application and the implications of the purpose to concrete cases can only be determined against the evolving context. Thus, sublimated into purpose, the founding moment in the normativist strain is not as controlling as its rendering in the hands of the fidelity-oriented historicists, suggesting a constitutional authorship that is more abstract and open to the changing context in the future.[66]
Yet, the normativist view pays a hefty price to keep the idea of constitutional authorship alive: the abstraction, if not deformation, of the founding moment. As a result, the concreteness of the founding moment as conceived of by the fidelity- oriented historicists appears to be more accessible to the public than the abstract norms into which the founding moment is resolved under the normativist view. More importantly, even though interpretation is never identical to that which is to be represented through interpretation, concreteness is more likely to be associated with the presence of authenticity.[67] In the collective constitutional imagination that extends beyond specialists in constitutional interpretation, the constitutional order and its interpretation are seen as constantly seeking to approach the authenticity or identity of constitutional authorship.[68] Specifically, in the eyes of non-specialists, the historical founding moment is real and the associated representation of constitutional authorship appears to be authentic. All method-guided interpretations are expected to be able to speak to the identity of constitutional authorship at constitutional founding without fail. Yet, to specialists (except those who totally disregard the historical founding moment), neither the historicist nor the normativist view of the founding moment can bring forth the much- longed-for authenticity of authorship. Whether the founding moment plays a controlling or an inspiring role in the constitutional order is a matter of interpretive method. Regardless of being fact or norm, the founding moment as recounted in constitutional interpretation does not concern constitutional authorship. This contrasting attitude towards the semblance of authenticity emanating from historical concreteness explains why originalism is not going away anytime soon.[69]
'lhere is no blaming non-specialists for ignorance in mistaking a particular form of representation of the founding moment (originalism) for its authenticity (the presence of constitutional authorship). Instead, here emerges a gap in constitutional imagination. Not only failing to bridge the gap but widening it, contemporary constitutional theories are flawed in making sense of the founding moment in constitutionalism. Reconceiving the role of the founding moment in the constitutional order will be the first step towards narrowing the gap.
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