Introduction
The character and identity of a constitutional regime (or simply constitutional identity) is not a novel concept in constitutional theory, but has seen a resurgence in recent scholarship.1 Such anthropomorphic references to the issues resulting from the continuity and change of constitutional orders have proliferated on both sides of the Atlantic and beyond over the past three decades.2 On this view, a constitution has its genesis.
Far from being a unitary construct, the genesis of a constitution has generated a set of topics for further investigation in constitutional theory. The subject who gives birth to a constitution is one; the time when a constitution comes into being is another. Both being part of the multifarious construct of the genesis of a constitution, the constituent power (subject) andtraditionally, the key question concerning constitutional identity is whether a changing constitutional order should be regarded as the continuation of the original one or as the replacement that is new and distinct from it. Jan-Herman Reestman, ‘The Franco-German Constitutional Divide: Reflections on National and Constitutional Identity' (2009) 5 EuConst 374, 382-84; Monika Polzin, ‘Constitutional Identity, Unconstitutional Amendments and the Idea of Constituent Power: The Development of the Doctrine of Constitutional Identity in German Constitutional Law' (2016) 14 ICON 411. Notably, a recent wave of literature on constitutional identity centres on the question of ‘identification' and is more or less sociologically oriented (see ibid 412). Under this view, constitutional identity appears to be a special form of national identity. Compare Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (Routledge, 2010) 11-12with Gary Jeffrey Jacobsohn, Constitutional Identity (Harvard University Press, 2010) 9-10.
For the present purposes, constitutional identity is understood in its traditional sense.2See, eg, Reestman (n 1); Polzin (n 1); Bruce Ackerman, We the People, Volume 1: Foundations (Belknap Press, 1991); Jed Rubenfeld, Freedom and Time: A Theory of Constitutional Self-Government (Yale University Press, 2001); Chaihark Hahm and Sung Ho Kim, Making We the People: Democratic Constitutional Founding in Postwar Japan and South Korea (Cambridge University Press, 2015). the founding moment of constitutional orders (time) are intertwined. Bringing the crucial role of momentous constitutional politics in understanding a constitutional order to the fore, Bruce Ackerman's theory of constitutional moment is an exemplar.[17] Yet, as many of his critics have pointed out, how the construct of constitutional moment is related to the constitution itself is unclear. Is it a function of the exiting constitutional order or a manifestation of extra-constitutional power? Is it norm or merely fact? Is it situated within or without the constitutional order?[18]
Although these issues have been at the centre of scholarship on constituent power, they also speak to ambiguities about the relationship between the founding moment and its ensuing constitutional order in constitutional theory. Yet, there is a fundamental difference in character that makes the question of the constitutional status of the founding moment more complex than the idea of constituent power. In contrast to the idea of constituent power, the founding moment is more than a conceptual construct; rather, the founding moment of a constitutional order points to the series of historical events that lead to the adoption of the constitution.[19] This difference suggests that beneath the relationship between the founding moment and its ensuing constitutional order are questions about the identity of constitutional theory itself. Is the historical founding moment relevant to the theorisation of the constitution at all? If so, how is the originary moment being considered in constitutional theories? Is the state of the art satisfactory? Can we rethink the question of the founding moment in constitutionalism beyond current theoretical positions?
This chapter takes up these issues at the core of constitutional theory by examining the question of the founding moment in constitutional scholarship in light of the antinomy between fact and norm.
I argue that contemporary constitutional theories fail to account for the role of the founding moment in the constitutional order because they are absorbed in the narrow question of constitutional interpretation at the expense of making sense of the constitutional order. Drawing upon Robert Cover's concept of nomos,[20] I contend that with an eye to the understanding of the constitution beyond the interpretation of constitutional norms, the constitutional order needs to be recast as a constitutional nomos. As a constitutional nomos operates not only on constitutional norms but also on the enriching narratives about the birth and growth of a constitutional order, the founding moment is pivotal to the discovery of constitutional meaning in this broad sense. Through narratives, the founding moment is related to its ensuing constitutional order and thus ‘constitutionalised’, suggesting a broader understanding of interpretation in constitutional theory than contemporary constitutional theories assume. On this view, the founding moment is neither a mere historical fact nor a placeholder for universal norms, but rather serves as the reference point for constitutional redemption that renders the constitutional order ‘jurisgenerative’.[21] Narratives about the founding moment concern more the invigoration of the existing constitutional order than its original foundation. This observation further suggests an alternative attitude towards the unsettling concept of constituent power:[22] the constituent power’s appeal does not so much lie in the substitution of a new constitutional order for the existing one as in its rejuvenation of the latter, since it is reincarnated in the narratives-mediated constitutionalised founding moment.My argument proceeds as follows. In the first place, I shall establish that two opposite views dominate current constitutional scholarship on the question of the founding moment. As I shall explain, under the historicist view, the founding moment is fact only;[23] under the normativist view, it is absorbed into constitutional norms.
Neither is satisfactory as the question of the founding moment in constitutionalism is reduced to a methodological debate about constitutional interpretation among specialists (section II). Taking issue with this jurispathic rendering of the founding moment in contemporary constitutional theories, I shall continue to propose a relational approach to the constitutionalisation of the founding moment by drawing upon Cover’s ideas in ‘Nomos and Narrative’.[24] Situated between fact and norm and mediated by narratives, the founding moment conceived of this way will turn the enterprise of constitutional interpretation into one of nomos-building that invites revitalising narratives from citizens in the discovery of the meaning of the constitutional project. Thus, the narratives- mediated constitutionalisation of the founding moment also entails an alternative account of the constituent power (section III). To conclude, I shall underline the implications of the relational approach to the constitutionalisation of the founding moment to constitutional theory in terms of substance, process and structure (section IV).II.