Paradoxes of the newconstitutionalism in higher lawmaking
The experiences described above on the emergence of recent constituent processes and their attempt to frame a constitution in a pure deliberative manner, asking for maximum popular participation, and preventing violence, convey some paradoxes.
One contradiction emerges in the relationship between popular mobilization and political stability. On the one hand, it is claimed that the benefits of increased participation in constitution-making require a minimum of order, democratic consolidation, and social homogeneity (Landau, 2013a, p. 934; Widner, 2008, pp. 1529-1533), while on the other hand, what we usually find in stable democracies involved in a constitutional change is apathy among the citizenry, lack of participation, and, at most, a popular mobilization against the constitutional proposal.
It is thus hardly conceivable to encourage a massive participation within a context of normal politics in which no pressing constitutional debate might be appreciated, not to mention the difficulties in triggering participation in power and institutions, when constitutional questions are far from the day-to-day worries of most citizens. Experiences such as the European Treaty on the Constitution or President Bachelet’s proposal to reform the Constitution of Chile showed that there is no popular mobilization able to promote a constitutional transformation without a conflict (a conflict which, as we have seen, usually derives in violence). The will to change the basic premises of a political organization is not suddenly born from nothing.
In this vein, the case of the European Treaty Establishing a Constitution was eloquent. Member States’ governments and the European Union institutional representatives embarked themselves on a supposed constituent proposal that did not really involve a reallocation of power because it did not allude to any immediate conflictive background.
However, the constituent mise-en-scene transmitted by the Convention alerted some parts of the electorate within the Member States that a reform could pave the way to build structures at the European level able to lead to deeper social and economic inequality across the continent. In other words, the European elites created the problem and, as a consequence of their initiative, grassroots activism within the Member States mobilized, but to repudiate the new rules erected by the political cadres (as was shown by the 2005 referenda held in France and in the Netherlands, which buried the constitutional draft).Differently, in more divided and irritated societies, a deeper and more intense popular mobilization may be recorded but such assertion by the citizens may also appear tarnished by the destructive impulses that obliterate any deliberative structure or by the will of a faction and its charismatic leader that push for the monopolization of power. Venezuela, Bolivia, or Hungary would be examples of
“New constitutionalism” & constituent power 211 “abusive constitutionalism” as David Landau (2013b) qualified the phenomenon which uses mechanisms of constitutional reform to erode the democratic order. Where there is a calm deliberation without popular passion, constitutions are not finally passed. Instead, where there is impetus and conflict, constitutions may be finally approved because the winning group imposes its will without great concern for pluralism and inclusiveness.
The juxtaposition of what has been called “populist constitutionalism” [that is, the struggle of some populist movements to attain political self-perpetuation through constitutionalization (Dixon, 2017; Chambers, 2019, p. 1117)] vis-a-vis a supposed “deliberative constitutionalism” [in which the largest possible amount of individuals within a given society participate, discuss, and agree on the constitutional rules (Chambers, 2019, pp. 1125-1128)] also reflects another disturbing phenomenon, namely, that within the contexts of populist constitutionalism constitutions are approved and enforced while deliberative constitutionalism cannot exhibit any single example of a comprehensive constitutional reform associated with a real transformation regarding the allocation of power.
Before the wave of authoritarian regression that is eclipsing some constitutional democracies, it has been argued that constitutions are being transformed from rules of the game of democratic competition into instruments designed to shield the majority party from competition and criticism (see Grimm, 2020, p. 15). But, in my opinion, the role of constitutions at the service of the faction that has temporarily taken the control of the State and uses the constituent track to entrench itself in power lies behind the very concept of constitution. Further still, adopting a constitution contributes to legitimate what in other circumstances would be a raw contention of dissidence through coercive means.
In another respect, in such places in which the transformative forces do not count with the application of physical violence, as happened for instance in Catalonia, the change in the political framework is not achieved, because the supporters of the status quo have only to abstain themselves from participating in the constitutional initiative and trusting in the repression displayed by the establishment. In other words, specific and democratic movements for constitutional revolution are likely to fail in circumstances where the boycott of the adversaries may interpose a kind of veto. Such context also depicts the fragile dialectic between democracy and political apathy in the face of a constitutional change but from another perspective. It could be said that the persistence of the lack of involvement of one side precisely reveals that the constitutional change is not backed up by an extensive, intense, and sustained popular mobilization that may legitimize the transformative movement in a pure, violence-free context (see Bossacoma, 2020, p. 348). But it is not clear at all if the boycott of the adversaries succeeds in refraining the change precisely because they are backed by the violence (or the threat of violence) exhibited by the State apparatus on which they rely or, conversely, if the big majority pushing forward the transformation, disregarding how wide it is, fizzles out because it does not count with the decisive coercive means to impose its will.
It would be thus, in conclusion, not a matter of democracy but a matter of force.At any rate, what a constitutional transformation denotes is that there is a fundamental cleft in the society that excludes a unitary solution. In fact, the constitutional process itself may contribute to enforcing the divisions within the society. Invoking a complete constitutional rearrangement in which the conflict, while existing, is latent, may boost its eruption and hence make impossible any constitutional agreement since the resulting disputes have gone too far. Whether the conflict within the society is not pressing enough to incite the majority of the people to jettison political stability (as seemed to happen in Iceland or Ireland), or because the division is already too profound that no constitutional agreement may be reached (as might happen in Catalonia and its secessionist attempt from Spain), the outcome would be the same: the failure of political and institutional reform. In order to ensure the achievement of the constitutional transformation the part of the society backing up the new regime has not only to be willing to risk losing the stability provided by the old regime, but also has to be able to enforce the constitutional change towards the adversaries, disregarding the attitude of the latter which may be radicalized with the constitutional dispute. Constitutional politics are, in sum, polarized politics (Elster, 2000b, p. 348).
The myth of constitutionalism is grounded on the idea according to which “We the People” gives itself a constitutional framework. Both old and new experiences of constitution-making processes (from the drafting of the United States' Federal Constitution to the developments seen in the new constitutionalism) rather demonstrate, however, that real political change emerges where the People is divided and, accordingly, constitutions are finally passed in those places in which a part of the society dominates the other parts.
Constituent processes are not developed in an arena where political mobilization and deliberation is general as the emergence of the We the People is likely to allude. Instead, as long as a part of the citizenry expresses its eagerness to challenge the basic rules, such struggle is paid at the cost of deepening the divisions in society and dissolving the very notion of the People.
The document that is supposed to be founded on a common political unity has its origins in the fiercely internal fight within such a group, while its outcome represents the interests of one faction. The People cannot be in such a narrative the agent of the constituent impulse because a constitution is rather the product that expresses its dismemberment.Notes
1 A variant on the discourse of enhancing citizenship participation on constitutional decision-making is traced in the United States by supporting the popular involvement against “the purported evils of judicial supremacy” (Kramer, 2004).
2 That using of the term “new constitutionalism” is appreciably different than Ran Hirschl's (2007) idea regarding the fortification ofjudicial review mainly caused by the supranational legal integration processes. It should be also distinguished from the use of the expression “new constitutionalism” here offered from the approaches by Stephen Gill (2008, pp. 137-138) and David Schneiderman (2008, p. 38) when they associate the new constitutionalism with the institutional manifestation of disciplinary neoliberalism. So understood, the new constitutionalism would
“New constitutionalism” & constituent power 213 insulate key aspects of the economy from the influence of politicians and the mass of citizens by imposing, internally and externally, binding constraints on the conduct of fiscal, monetary, and trade and investment policies. Such description would perfectly suit with the opposite concept until now refereed in which the popular participation in creating fundamental rules (including the economic ones) plays a fundamental role. Nevertheless, the considerations developed by the analyzers of the neoliberal constitutional set of rules would, in a different way, have some relation with our ideas on constitutions as devices by which the existing distributions of wealth and elite privileges are consolidated since they disempower the people from deciding about some fundamental economic relations.
The pattern of new constitutions emerging from violent revolutions and coups d’etat in which is outlined the seizing of power by new elites has been generalized in Africa. Among many cases observed in the last decades may be mentioned the Constitutions of Guinea (2010), Madagascar (2010), and Niger (2010).
On the Icelandic constitutional process see, among many others, Bergmann, 2016; Bergsson and Blokker, 2014; Landemore, 2015 and 2020; Meuwese, 2013; Sanders, 2012, p. 6; Suteu, 2015, pp. 260-264; Thorarensen, 2017. Venice Commission Opinion 702/2013, available at http://www.venice.coe.int /webforms/documents/default.aspx?pdffile=CDL-AD(2013)010-e
On the Irish constitution-making process see Carolan, 2015; Colic, 2014; De Londras and Morgan, 2013; Farrell, 2014; Farrell et al., 2016 and 2017; O’Sullivan, Healy, and Breen, 2014; Suteu, 2015, pp. 264-268.
It is likely that the Irish Convention was inspired by the assemblies on electoral reform in the Canadian province of British Columbia established in 2004 (see Farrell et al., 2017, p. 124).
On the first phase of the Chilean constitutional change attempt see Quiero and Gajardo, 2016.
Among many others see Arato, 2016, p. 161; Bogaards, 2018; Gabor, 2019; Halmai, 2018, p. 219; Jacobsohn and Roznai, 2020, pp. 89-101; Pichl, 2019; Solyom, 2015.
Prime Minister Viktor Orban’s Speech at the 25th Balvanyos Summer Free University and Student Camp, available at www.kormany.hu/en/the-prime-mi nister/the-prime-minister-s-speeches/prime-minister-viktor-orban-s-speech-at -the-25th-balvanyos-summer-free-university-and-student-camp
On the causes of the 2011 authoritarian turn rooted in the deficiencies of the 1989 constitutional process see Arato, 2016, pp. 161-222.
“Hungarian lawmakers approve socially and fiscally conservative new constitution,” The Wahington Post, April 18, 2011.
“Hungarian Parliament Approves New Constitution,” The New York Times, April 18, 2011.
On secessionism as the emergence of the constituent power see, among many others, Albert, 2019, pp. 64-66 and Bossacoma, 2020, pp. 354-357.
Spanish Constitutional Court Decision 31/2010 of June 28, 2010. On this ruling see my work Lopez Bofill, 2014, pp. 70-85.
Resolution 1/XI, November 9, 2015, of the Parliament of Catalonia, on the beginning of the political process in Catalonia as a consequence of the outcome of the elections held on September 27, 2015.
Spanish Constitutional Court Decision 259/2015 of December 2, 2015. Point 2 of the Resolution 1/XI, November 9, 2015, of the Catalan Parliament. Catalan Parliament Statute 19/2017, of September 6, 2017, on the selfdetermination referendum.
Among them the Appeal of Unconstitutionality number 4334-2017 against the Catalan Parliament Statute 19/2017, of September 6, 2017, on the self-
determination referendum. There were other appeals concerning, for instance, the Catalan Government Decree 139/2017 of September 6, 2017 calling for the self-determination referendum on October 1, 2017 and the appointment of the members of the supervising referendum body provided by the Statute.
21 Catalonia’s former vice-president Oriol Junqueras was convicted of sedition and misuse of public funds and sentenced to 13 years in prison. He was also banned from holding public office for 13 years. The former Catalan foreign minister Raul Romeva, labour minister Dolors Bassa, and regional government spokesman Jordi Turull were each convicted of the same offences and sentenced to 12 years’ imprisonment and handed 12-year bans on holding office. Carme Forcadell, a former speaker of the Catalan Parliament, was sentenced to 11 and a half years, while the former interior minister Joaquim Forn and territorial minister Josep Rull got ten and a half years each. Two pro-independence grassroots activists, Jordi Cuixart and Jordi Sanchez, were found guilty of sedition and given nine- year sentences.
22 European Court of Justice C-502/19, December 19, 2019, Junqueras Vies.
23 On Brexit and, generally, the withdrawal of a Member State from the Union according to Article 50 of the Treaty on European Union as a modality of secession see Bossacoma, 2017, p. 15; Ferreres, 2018, p. 141.
24 See, for instance, on the parliamentarian authorization to leave the Union, the United Kingdom Supreme Court judgement R. (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC5 (appeal taken from Eng.).
25 See December 2017 George Mitchell’s interview by the BBC available at www.b bc.com/news/uk-northern-ireland-42412972
26 See points 1 (i) and 1(ii) regarding the Constitutional Issues of the 1998 Good Friday Agreement between the Government of the United Kingdom and the Government of Ireland: “The participants endorse the commitment made by the British and Irish Governments that, in a new British-Irish Agreement replacing the Anglo Irish Agreement, they will: (i) recognize the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland; (ii) recognize that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.”
27 “DUP leader prefers no Brexit deal to EU ‘annexation’ of Northern Ireland,” CNBC October 13,2018 available at www.cnbc.com/2018/10/13/dup-leader- prefers-no-brexit-deal-to-eu-annexation-of-northern-ireland.html
28 “PM’s Plan B: Good Friday deal could be rewritten,” The Daily Telegraph, January 21, 2019.
29 Total number of mortal victims derived from the Northern Irish conflict available at www.theguardian.com/news/datablog/2010/jun/10/deaths-in-northern- ireland-conflict-data.