The American experience and the theory of the constitution
Both the independence of the American States and the foundation of the United States provide an example that fits with the theory on violence and constituent power that I have presented in the previous pages.
If that adjustment between theory and practice is perceived in one of the first experiences of modern constitutionalism (and to be sure one of the most prominent given the political dimension that the United States still play in the world of the twenty-first century), maybe that means that my approach concerning the origins of constitutional orders is not misguided and that something relevant in epistemological terms may be inferred from all the analysis.The American constitutional struggles by the second half of the eighteenth century needed a war of secession to be consolidated and were followed by other convulsions in the process that went from the independence of the American States to the entering into force of the Federal Constitution. Still, as explained before in some abstract terms, but quite clearly reflected in the American foundational episode, the creation of the American Constitution was a decision on the allocation of power triggered by the elite in order to consolidate its hegemony. As the historian Robert Middlekauff highlighted (2007, p. 669), along with many other scholars before him, the centralization of power that the Federal Constitution entailed was a conservative response to a move towards democracy that the Revolution had stimulated. Said Revolution, nevertheless, had already been a matter of conflict between elites developed both by displacing the elite representing the British Crown during the war, and by entrenching the position of the European settlers' descendants towards the indigenous peoples (a fight that had taken place from the very beginning of the colonization of North America and that would continue westwards under the United States constitutional regime).
According to the parameters displayed in Chapter 2 of this book, the American experience would show the violence latent in the background of a constitutional system in two stages, corresponding first to the creation of the 13 States of the Confederation, and second to the violence experienced during the constitutionmaking. As we shall see, there would also be violence during the life of the American constitutional order that shall be associated with the transformations of the system, as the American Civil War might well illustrate.
It is in that vein that the paradigm of the free consent of all participants in the basic decision-making of the American political structure cannot be appreciated at any level of the American constitutional development. Even Bruce Ackerman (1993, p. 315), the most prominent defendant of the legitimacy of the Constitution’s supremacy on the grounds that democracy and popular mobilization were involved during the American constituent moment, admits that
The Founders established an oligarchy. While they spoke for the People, they only tried to win the mobilized consent of white men.
The lack of democratic foundations of a constitutional artefact have not, nonetheless, discouraged Ackerman and those influenced by his teachings to present the historical events surrounding the U.S. constitutional creation as a political action marked by the mobilization of the citizenry, the deliberation among the different actors, and the majoritarian support expressed within the community on the fundamental decisions adopted. Ackerman’s entire enterprise of extracting a general theory of higher lawmaking focuses, in sum, on analyzing the circumstances that allow it to be claimed that someone is speaking in the name of the People and, thus, to justify the break from the previous constitutional framework or to reshape the meaning of the constitutional identity.
Ackerman’s writings on such moments of mobilized popular renewal and political consciousness in the history of American constitutional developments have, certainly, many advantages.
One of them is helping to isolate the idea of constitutional commitments within their historical context and, thus, helping to simplify the analysis of the influence of violence in each episode. Maybe violence, political violence, is continuous throughout American history (as in all human histories), but the theory of moments in which higher laws have been created allows us to detect the time in which violence is a generalized social phenomenon and, even indirectly, a source of legitimacy for the constitutional framework that emerges from it. The division between the higher political moments (from which constitutional changes are inferred) and the ordinary political life would be the division between those moments in which political violence is more perceptible in epistemological terms, and those in which violence is more punctual or concealed.I will take thus the American constitutional moments that Ackerman identifies as crucial to understand the evolution of that order, but I will instead associate them with my approach on the phenomenon of the constituent power in the following terms:
1. I will emphasize the appearance of violence in all episodes attached to what in Ackerman is described as a constitutional moment. At any rate, manifestations of violence will show their prevalence in historical terms (that is, in the objective causality) upon the democratic factors in the configuration of the final constitutional product.
2. I will describe the struggles that lead towards the approval of a constitutional framework as the triumph of one human group upon the others and, consequently, I will identify the material sense of the constitutional document by focusing on the decision on the allocation of power that the assault of power by the victorious group has represented.
3. I will tackle the progress associated with constitutionalism that is usually derived from a liberal revolution such as the one that took place in the America of the eighteenth century (namely, rule of law, fundamental rights, or democracy) as incidental outcomes on the path of the elite to entrench its hegemony.
In short, the recognition of such principles or spheres of liberty relied, according to my vision, on the pure interest of the elites to perpetuate themselves in a leading position within the system.My basic thesis, the “no victims rule,” would state that any act of violence invalidates any democratic consideration about the production of higher lawmaking. And the American experience was, on the contrary, a chain of moments stained by blood. The blood not only cancels the debates around political mobilization but introduces another sinister perspective in analyzing American constitutional history (and somehow regarding any constitutional history): if there was a constitutional moment precisely because there was blood.
According to my idea, the “dramatic circumstances” and not the mobilization of the citizenry (or its participation through deliberative procedures), are the decisive factor in order to recognize the emergence of a constitutional transformation. In other words, the popular involvement, the mobilization of the masses, is rather expressed through wars and all sort of massacres later exploited by the elites for their own sake. Violence and the personal sacrifices derived from a brutal confrontation are the perfect narrative to consolidate the national sense of belonging and thus, the legitimacy of the rule that organizes said national community. The higher the sacrifice is in terms of deaths, the stronger the legitimacy of the resulting constitutional endeavour is.
American constitutional history is a vast field of knowledge composed of countless contributions. In contrast to what occurred in Germany regarding the foundation of the 1949 German Basic Law, in the American tradition the narratives on constitutional legitimacy rooted in historical episodes have been fully developed. As an outsider of American constitutional thought, the aim of the following writings does not consist in offering a theory on American constitutional law. Rather, I would limit my contribution in alluding to the different episodes defined by Ackerman and others as “constitutional moments” but only as long as they serve my theory on constitutionalism and violence. I would not get into the sophisticated theories on American constitutional interpretations that have been extracted from history. My analysis shall be encompassed by exploring such episodes only to confirm the importance of coercion both in the foundation and in the evolution of a constitutional system.