Theorising the Founding
What is a founding moment? Is it the same as a constitutional moment? For the most influential telling of a founding moment, we turn to Bruce Ackerman.[2] He describes it as a moment when ‘the People’ make a rare collective decision under a special confluence of political and social conditions.[3] This decision is a result of a popular movement that earns the support of a majority of citizens.
This special decision must withstand repeated deliberations in fora provided for ‘higher lawmaking’ In Ackerman’s words, the crescendo of massive and repeated mobilisations of the people are ‘acts of citizenship that, when successful, culminate in the proclamation of higher law in the name of We the People’[4] He recognises four constitutional moments in the US: the Founding, the Reconstruction, the New Deal and the Civil Rights Revolution. The Founding, of course, framed the original US Constitution and the Bill of Rights that followed closely thereafter. The second constitutional moment occurred three generations later, in the struggle that led to the Reconstruction Amendments. The third came in the 1930s with the New Deal revolution confronted by the Old Court, ultimately yielding to the creation of the ‘activist welfare state’[5] The most recent constitutional moment occurred in the 1960s with the enactment of landmark statutes that made good on the promise of equality in the Reconstruction Amendments. Ackerman explains that these four decisive turning points each ‘inaugurated’ great transformations, ushering in new and distinctive constitutional regimes.[6]One way to understand a constitutional moment, and perhaps also a founding moment, is as an ‘extralegal constitutional change, resorted to because of a failure of the formal rules of constitutional amendment’. [7] This definition would exclude the most critical moment in India’s modern history: the creation of the doctrine of basic structure by the Supreme Court of India.
The ‘basic structure’ or ‘basic features’ doctrine was crafted by the Indian Supreme Court to prevent the national legislature from amending features like secularism, judicial independence and the separation of powers - features the Court identifies as integral to the country’s constitutional identity.[8] What makes this moment special is that the Court created this rule out of whole cloth. While it may reflect the contemporary values of Indian political actors and the people, it remains a moment of great significance because it marks a turn in the Court’s case law and its conduct in respect of the coordinate branches of government. It is here, then, that we find the country’s new beginning.Another reading of a constitutional moment offers a potentially sharper contrast with a founding moment. A constitutional moment can be understood more narrowly - though no less importantly - as the informal amendment of formal amendment rules.[9] What makes the four episodes Ackerman identifies as constitutional moments similar in kind to the creation of the basic structure doctrine is not that these constitutional changes occurred outside of the formal rules of constitutional amendment;[10] it is instead that Ackerman’s four constitutional moments and the rise of the basic structure doctrine in India each on their own altered how their respective constitution is amended and when an amendment is recognised as valid.[11] The four transformations in the US and the creation of the basic structure doctrine in India are therefore all examples of constitutional moments in the Ackermanian sense.[12] Whether these episodes are all properly understood as ‘founding moments’ is another question altogether.
Emerging insights from around the world suggest that founding moments may not always be a culmination of a people’s revolution or a collective movement built upon popular support. Founding moments may also be a culmination of events triggered by civil war, leading to efforts to secure peace and stability.
A constitution follows, but is soon suspended in a military coup. Soon after the military relinquishes power, the constitution is brought back into force and is subsequently amended time and again to modernise it. This generally tracks the story of Pakistan, as explored in this volume, and all this could amount to a long series of events in a founding moment that continues into the present.As we suggested above, founding moments may also take the form of a transformative decision by an apex court. It could also follow from the emancipation of a sizeable section of citizens. For instance, in Iraq a sequence of law-making events that resulted from a change of regimes expanded the freedom of women. An entire gender joined the ranks of decision-makers as the legal equals of men. When some challenged this legal transformation and sought to undo it, their efforts met with deep resistance from contemporary society and equality campaigns pushed back very hard to defend the change in the legal status of women, in the end making it virtually impossible to retrench on these newly created rights. This suggests that we might well identify a founding moment retrospectively in light of how difficult it is to undermine or repeal a law, a practice or a socio-political development.
We should also acknowledge that what qualifies as a founding moment may turn on one's philosophy of constitutional interpretation. Originalists, for instance, may see founding moments quite differently from non-originalists. And since originalists have tended for now to be most influential in the US, it may be that the notion of a founding moment is understood differently in that country.
Two important resources help inform our understanding of a founding moment. In Founding Acts, Serdar Tekin offers some insight into the idea of a founding moment.[13] Tekin highlights these moments' relation to popular sovereignty and their grounding (or not) in democratic legitimacy. As he states, ‘how Constitutions are made (or their pedigree) is morally and politically as significant as what they are made of (or their pedigree)'.[14] He stresses the importance of these moments as experiments of democratic sovereignty in which the people exercise their sovereignty and express their identity-in-formation.
For his part, Hans Agne complicates our thinking on founding moments when arguing that in order for a founding to be democratic - that is, to be constituted by the people in a foundational choice of coming-together constitution-making - it must be agreed to by as many persons as possible within and beyond the boundaries of the state.[15] As Agne claims, founding moments and their legitimacy are a key component underpinning the legitimacy of the state itself.[16]These and other works contribute immensely to our learning about founding moments and their relation to constituent power. Yet there is much more to say about founding moments from theoretical, historical and comparative perspectives, and we offer this volume as a complement to existing works exploring this fundamental reality in the lives of constitutional states. We seek more specifically in this book to explain how founding moments occur, when they occur and what forms they might take.