Founding Moments: A Reductionist Understanding
To understand the impact of this volume, it is worthwhile to begin by providing a reductionist view of founding moments in constitutionalism. The objective is to use this as a touchstone to help us understand the concept at its most basic level.
Thereafter, I will elaborate upon how the chapters in this book add a new dimension to this basic understanding and how each contribution lays the foundation for further inquiries, especially with regard to the notion of causality and narrative legitimacy.A reductionist view of founding moments in constitutionalism would involve at least four components. First, there is a major ‘nation-making’ or ‘nation-changing’ event(s) - violent revolution, war, struggle for independence, the establishment of a modern nation-state or the abolition of deep-rooted institutions like slavery or apartheid.
Second, in the wake of this crisis, a nation creates or re-creates its core identity. A nation distinctly different - both in its normative character and in its underlying institutions - is born. The American Revolution of 1776, the independence of India and Pakistan, and the creation of Israel are examples of such landmark ‘nation-making’ or ‘nation-changing’ founding moments.
Third, the founding moment has a guiding ‘spirit’. This ‘spirit’ is formed largely as a reaction to the previous order. They may also be influenced by the political debates that result during the birth or rebirth of a new nation: ‘ 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.’ [1033] This guiding ‘spirit’ created by the founding moment - which may even entail words of those considered ‘founding fathers’ - influences how this new nation views itself normatively. A previously colonised state, for example, may come to hold, as part of its new national identity, anti-colonial or even anti-government tendencies.
Likewise, a state once defined by apartheid may be reborn after its founding moment with deeply held egalitarian values.Fourth, the ‘spirit’ of the founding moments establishes the constitutional order. This occurs through a process often referred to throughout this volume as constitutionalisation - this may be through the guidance of the preamble, the text of the constitution, the institutions and rights that the constitutional order establishes, or through those who retrospectively interpret the text in light of the character and ‘spirit’ of the founding moment.
On the one hand, a cursory read of the contributions in this volume may give the impression that the chapters largely conform to this reductionist understanding. Throughout the book, there is discussion of founding moments across history and from different parts of the world; there is analysis of how such founding moments have resulted in different narratives and subsequent constitutional regimes. However, a closer read of the chapters demonstrates that the work contained in this volume not only deviates from this reductionist view in fascinating ways, but in doing so expands both the scope and depth of our understanding of this phenomenon.
The following sections provide a glimpse into how this collection has changed our understanding of founding moments in constitutionalism in relation to three broad themes: (1) narrative legitimacy; (2) temporality; and (3) what founding moments may mean for minority groups and secessionist movements.
II.