The legitimacy grounds of constitutional supremacy

The involvement of the people in deciding the core issues of government has been, from the eighteenth century, related to the modern trust in the human ability to transform reality (Klein and Sajo, 2012, p.

Even today, and mainly as a consequence of the attractiveness of such a radi­cally democratic promise for citizens to change the reality and their polity if they so desire, the concept of a democratic constituent power continues to play a major role in liberal constitutional orders. It provides a justification for the supe­riority of the constitution in the hierarchy of norms, and a basis of legitimacy for constitutional review over parliamentary legislation (Krish, 2016, p. 661).

Bruce Ackerman, with his notion of “dualism,” distinguishes between times when politics enjoy "constitutional moments” (during which, according to his vision, the public is more engaged with political affairs) and “ordinary politics” mainly conducted through representatives within a frame of less public interest.

As I mentioned, besides Ackerman’s work, we may currently find a broad con­sensus in the literature about the importance of public participation and delibera­tion while constitution-making. Scholars and practitioners have come to view a high level of popular engagement as necessary for a constitution to be regarded as legitimate and relevant by the citizenry (among many others see Banks, 2008, 1046; Ginsburg, Blount, and Elkins, 2008, p. 381; Klein and Sajo, 2012, p. 434; Blokker, 2017, pp. 40-42; Blount, 2011, p. 1046; Nasstrbm, 2007; Samuels, 2006, p. 668). Joel Colon-Rios (2012, p. 5) has also developed his theory on constitutionalism and democracy under the idea that ordinary citizens must be allowed to propose, deliberate, and decide upon important constitutional trans­formations through the most participatory methods possible (a conception that Colon-Rios wraps under the category of “weak constitutionalism”). So, under that perspective, any barrier on public participation at the level of the creation of fundamental law should be viewed with suspicion. Such a view of constitutional democracy claims that democracy should enshrine a more direct and substantive participation of citizens in the democratic process, including constitutional poli­tics (also Blokker, 2017, p.

As we shall see, some recent experiences on constitutional change in liberal democracies have been strongly influenced by the “weak constitutionalist” vision of public involvement in debating on the foundations of a constitutional order. However, I might already advance that if the success in practice of such ideals has been meagre, that has been due to the fact that constitutions are precisely made to put barriers to citizenry participation on changing the legal basic principles. Constitution-making operations are more related with the struggle of the founders to armour to the future the particular constellation of powers held by them in the constituent moment than by the intention of opening channels of discussion on the basic principles that define said constitutional order. In that vein it might be stated that the paradox of most liberal democracies is that the outcome of their ordinary legislation is more democratic than the context of their founding.

While scholars of constitutional law have maintained comparative silence on the issue of the foundational processes of constitutions, those of political philosophy have produced a plethora of contributions dealing with the objection to the lack of democracy that have characterized political and constitutional formation (Honig, 2007; Olson, 2007; Tekin, 2016; Zurn, 2010). Frank Michelman’s criticisms are remarkable (1996) on Habermas’ theory regarding the supposed mutual interaction between democracy and legality in relation to human rights in the origins of constitutional democracy (Habermas, 1996, see on that point also Cronin, 2006). Michelman pointed out the bootstrapping paradox concerning the application of democratic procedures to assess the legitimacy of constitutional grounds. According to Michelman, the foundational task of a democracy requires a set of procedures that have to fulfil democratic requirements as well, which would lead us to an infinite regression of procedures of democratic legitimacy presupposing procedures (Michelman, 1996).

From my perspective, nonetheless, the foundation of a constitutional democracy is explainable because the aforementioned unlimited chain of procedures on regulating the democratic conditions of a democratic founding is broken up by an historical event. Descriptively, constitutional appearance shows a suspension of the democratic circumstances of validity, provided by the facts (see also Atria, 2020, p. 51). In my opinion, thus, when in Michelman's legal theory it is stressed that a liberal democratic constitutional order cannot be democratically founded in a procedurally legitimate sense, it is meant that the act of the founding depends on someone's unilateral, procedurally unregulated will (Keenan, 2003, pp. 41-54), as an outcome of a historical experience. And that experience is usually (if not always) supported by the use of force. The sentence, of religious echoes, according to which “the event of the foundation of an order is not a part of the founded order” (Arato, 2016, p. 20) has from the methodological point of view, accordingly, to be applied to a constitutional democracy in order to state that either liberalism or democracy is part of the structure that establishes both of them.

In a different direction from the political one presented, another philosophical tradition, focused on ontological and linguistic analysis, has perceived the importance of coercion in creating a homogeneous social body as an agent of constitutional founding. Such a path has been explored in the writings of Jacques Derrida, in his considerations on the 1776 American Declaration of Independence (Derrida, 1986) and on the origins of authority (Derrida, 1990) as well as the linguistic analysis of republicanism developed by Jean-Francois Lyotard in his essay “Le Differend” (1983).

Already David Hume (Hume, 1963, p. 460) announced a similar idea pointing out the basic questions that I am going to develop in this contribution:

Almost all the governments which exist at present, or of which there remains any record in history, have been founded originally, either on usurpation or conquest, or both, without any pretense of a fair consent of voluntary subjection of the people.

The face of the Earth is continually changing, by the increase of small kingdoms into great empires, by the dissolution of great empires into smaller kingdoms, by the planting of colonies, by the migration of tribes. Is there anything discoverable in all these events but force and violence? Where is the mutual agreement or voluntary association so much talked of?

I maintain that human affairs will never admit of this consent, seldom of the appearance of it; but that conquest or usurpation, that is, in plain terms, force, by dissolving the ancient governments, is the origin of almost all the new ones which were ever established in the world. And that in the few cases where consent may seem to have taken place, it was commonly so irregular, so confined, or so much intermixed either with fraud or violence, that it cannot have any great authority.

Certainly, the case in which a constitutional transformation has been joined by an inclusive political process of constitution-making leading to a document approved by the vast majority of the population without any individual or collective rights violation is not only rare (Oklopcic, 2014, p.

Eluding the objection of the historical role of violence has been, however, quite common in social studies. As was remarked by political theorists such as Stathis Kalyvas, Ian Shapiro, and Tarek Masoud, disciplinary and sub-disciplinary barriers have long separated the various ways of studying the influence of violence in creating and maintaining an order (Kalyvas et al., 2008, p. 1). As the mentioned authors observe, researchers on violence and conflict tend to focus on places and periods in which order has collapsed and they rarely consider how violence is used to create the subsequent order that appears. Regarding my point, more precisely, the traditional silence of political philosophers, historians, sociologists, anthropologists, economists, or constitutional law scholars diminishes when determining the influence of violence in constitutional processes that succeeded in building constitutional democracies.

My hypothesis, in that sense, is that violence is an essential element in explaining the idea of constituent power in constitutional democracies and that the study of the historical constitutional origins of liberal democracies leads to a general reconsideration of the political legitimacy grounds of constitutionalism. In my approach, and precisely given the scarce implication of the people in the historical experiences of constitution-making in supposed liberal democracies, the problem is previous to the democratic legitimacy of the constitution-making processes. Thus, the problem is asking not about popular involvement in the different stages of constitution approval but asking about whether there was violence or not. When in his contribution on revolutionary constitutionalism Bruce Ackerman (2019, p. 4) almost casually mentions that insurgencies that led to constitutional creations were accompanied by mortal victims, this author is likely to tackle the relationship between violence and the formation of constitutional democracies almost as a neglectable fatality, a collateral damage in the process of establishing later legal constraints on top decision-makers under a system defined by the rule of law, human rights, and the regular calling of free elections. But to me, where Ackerman sees the contingency of history with scarce interest in explaining the grounds of constitutionalism, I see precisely the main problem of the liberal democracies. It is probably on the disruptions experienced during the creation of the system where there lie the causes of the present instabilities that plague such political structures.

Under my perspective, thus, the darkness comes not when we ask ourselves about what lies behind the constituent power in the People's Republic of China or any other authoritarian State, the main concern of the following lines is the involvement of violence in the creation of States and in the configuration of their constitutional order central to the tradition constitutionalism, such as the United States or the Federal Republic of Germany. This book is, in sum, a critic of constitutionalism within liberal democracies through the notion of constituent power.

Precisely because my interest is mainly focused on the most prominent patterns of liberal constitutionalism I will not get into the discussion (in another way crucial for contemporary constitutionalism) regarding the fuzzy zone between authoritarian constitutionalism and liberal constitutionalism (Tushnet, 2015a) considering, furthermore, that some of the problems that present liberal democracies have to deal with are related to the descent of their government into different types of authoritarianism. The point is that almost no liberal democracy (or perhaps none of them) fulfils a liberal democratic standard in the creation of its fundamental rules and perhaps, as I shall argue, it is because of such non- democratic backgrounds' origins that the current authoritarian turn in supposed liberal democracies can be explained.

As such, populism and radicalism, in many ways expressed through extreme conservativism, would not be anything else but a return to the origins, in times when there is the perception that the fundamentals of a given political system are in danger.

My point would be rather that in highlighting the shortfalls of the liberal constitutionalist mainstays of the Western tradition, in pointing out that liberal constitutionalism would not be so distant to authoritarian constitutionalism as one prima facie may think if we turn our view to the original position from which both constitutional democracies and authoritarian regimes originated. The question would not be to what extent the American Revolution, for instance, differs to any other revolution, even a cruel one, arisen during recent times in Africa, in the Middle East or in Asia that has driven to a constitutional transformation. The question is, rather, what they have in common, and if these factors in common concerning violence are consubstantial in exercising constituent power.