Violence and the different phases of constitutional formation

One thing is the creation of the State and another thing is the drafting of a constitution (Schmitt, 1993, pp. 61-62; Wood, p. 286) but both processes are intertwined and so it is in both that violence is revealed.

The constitution, including modern constitutions shaped under the patterns of liberalism, are the reflection of the violence perpetrated during the State­building. The distance between the State-building (and the conflicts arisen with it) and the exercise of the constituent power may be temporarily short, as happens, for instance, between secessions derived from an independence war and the drafting of the new independent State's constitution (Chryssogonos, 2008, p. 1300) or may occupy a longer period, such as the time elapsed between the formation of Europe's modern States and the advent of constitutionalism. But violence, and particularly war among different human groups, is in the beginning

Constituent power and the constitution 63 of all such processes. As the sociologist Charles Tilly summarized reviewing the rise of the modern European State: “War made the State, and the State made war” (1975, p. 42; see also Gat, 2008, p. 358). Each State's emergence as a defined territory, with a subject people and a ruling authority was a result of multifarious ominous events such as conquests, rebellions, secessions, murders of heirs, surrenders of rights to commercial exploitation (see Oakeshott, 1975, pp. 185-186 and Loughlin, 2010, p. 238) or, in the less convulsive fashion, as a consequence of intermarriage between ruling families (a phenomenon that did not exclude confrontations and bloodbaths throughout the history of the union of kingdoms).

Before the constitutional State could attribute its constitutional regulation to the People such People had to be created with the destruction, assimilation, and subjugation of other peoples and defended from exterior enemies. Constitutional regulation is not only a representation of the network of forces derived from such conflicts and the confirmation of a particular group's hegemony upon others but develops also a narrative of legitimacy through abstract principles (popular sovereignty, rule of law, human rights) devoted to cover the blood stains of the past.

Constitutionalism, from the eighteenth century, provided such a legitimacy that sought to cement the cohesion of political communities beyond the bayonets. But ideas related to constitutionalism presupposed the concentration of power represented by the violence that embedded the creation of the modern State in Europe during the sixteenth, the seventeenth, and the eighteenth centuries. As well as some classic approaches such as Tocqueville's in The Old Regime and the Reeolution, in which the need of a previous concentration of despotic power in order to make possible the emergence of the liberal State was already noticed, some modern scholars, as Istvan Hont (1994) and David Bates (2007) have established precise connections between the warfare dominating the European landscape of that time and the ideas about constitutional limitations developed in the Enlightenment.

Certainly, if there was a concern about the division of power and the protection of individual rights at the end of the eighteenth century, it was because strong and centralized forms of political administration and organization had been built through the practice of war both at the domestic level and at the level of the confrontation with other States (Tilly, 1975, p. 15). The previous stage of constitutionalism and the sovereignty of the nation, that of so-called “absolutism,” provided the build-up of a standardized machinery of government administering the “fiscal-military State” able both to eliminate internal diversity and compete with other powers engaged in the same process of centralization and domination (Hont, 1994, p.

Constitutionalism was possible once political unity and the supreme authority within each independent State had been established. Thus, the limitation of power was conceived after the hurricane of the supreme and absolute power to which the concept of sovereignty was associated. Constitutionalism was a theory about the importance of controlling, limiting, and restraining the power of the

State in a substantive way (McIlwain, 2007, p. 21) but before limiting the power, such power had to exist. Consequently, whereas constitutionalism contributes to ordering political life once its legal frame has been decided, it does not take into account the unrestrained violence that accompanied the formation of the State itself. Moreover, the limitation of government provided by the rules of the constitution was only possible after the arbitrariness and killings that occurred before the establishment of such government.

But violence may be present also in the process of drafting, passing, and ratifying a Constitution. Beyond the violence exercised during the creation of the political community that would have a decisive influence in the legal translation represented by a constitution, such an instrument may be associated directly with a previous (and violent) revolutionary event and a violent atmosphere may surround the process of discussion and adoption of the new constitutional framework.

Finally, violence may occur while enforcing the constitutional regime. As we shall see, although the use of physical force is displayed through the application of the criminal code in the ordinary developments of the constitutional State, our approach shall be limited to the enforcement of the constitutional rules that arise in moments of emergency which might be read as a resurrection of the original violence that underlies the system.

Violence and the formation of the political community

The emergence of the State throughout human history has always been accompanied by the organization of armed forces.

This process involved accumulation and concentration of power to the point where it could be institutionalized and upgraded to a new level. This seems to have been mostly achieved by individual leaders and their followers who succeeded in gaining ascendancy over their contenders within the elite, but sometimes in a more collective elite form. Wherever such foci of state power emerged, an upward leap in the effectiveness of power was gained, feeding on itself in a positive loop mechanism. Private retinues were turned into state household troops and the nucleus of a standing army. Freely assembled tribal and local militias became subject to compulsory levy and call-ups. Military leadership could enforce discipline on the armed hosts. “Gifts” and services to chiefs and “big men” were being turned into regular taxes and corvee labour. In turn, conquered land and increasing spoils of war gained by all

Constituent power and the constitution 65 these means mainly flowed into the hands of the rulers, further enhancing their power. In this way, independent foci of power within segmentary society could be driven to subordination, disparate tribal units within the same ethnos could be welded together and amalgamated, an outside tribes and ethnies could be assimilated. A process of “state building” took place.

As Carl Schmitt noticed (1974, pp. 112-119), from the repeated upheavals and carnages that devastated a constellation of territories in Europe during the Modern Age emerged the institution of an inter-State legal order grounded in political units which had the ability to restore order and security within their own borders, maintaining order within Europe as a whole, since they recognized each other as legitimate counterparts.

Under my perception of constitutionalism, as I will emphasize, constitutional limitations are not only not applicable to the violence involved during the building of the State and the consolidation of the political unity but are the legal certification of the structure of domination that emerged in the midst of that foundational violence.

During the creation of the political community, warfare was given within the political space that was being consolidated [war among “internal” enemies]⁷ and between unities already formed (war among “external” enemies) and within the second group of conflicts, disputes arose between authoritarian States, between authoritarian States and incipient democracies, and, in a contrary way to the extended perception, between democracies as well. Despite the statement, that had gained some fortune among social scientists according to which “there have not been wars among constitutional democracies” (Babst, 1972; Doyle, 1983; Weart, 1998), such views have deserved a great deal of modulations and criti­cisms (see, for instance, Gat, 2008, p.

liberal democracies and what are sometimes considered authoritarian States were not really very relevant. For instance, it is true that in the Germany of the Second Reich the executive was not elected by the citizens nor needed the trust of an elected parliament to rule [as happened in the Third French Republic or in the United Kingdom (see Babst, 1972, pp. 55 and 57)] but in the legislatives of the three States, Germany, France, and the United Kingdom (or at least one chamber of them) all adult males were entitled to vote. Such democratic affinities between France, Great Britain, and Imperial Germany at the beginning of the twentieth century did not restrain them, nevertheless, to get into the destructive fight of the First World War⁸. The First World War, in turn, had its reverberations in subsequent prolonged conflicts contributing to the emergence of new States, in Eastern Europe or as in the case of Ireland.

The Irish case precisely allows us to centre the question on the relationship between violence and democracy. Even assuming that within liberal and democratic contexts violent conflicts tend to diminish, violence has been, up to a certain point, involved in the creation of a new State, including the formation of new sovereign and liberal democratic entities from what, at the time of such independences, were considered democratic central States as well. In other words, even concluding that within and between consolidated democracies violent conflicts might be rare, high-intensity conflict generally appears during the foundation of such new liberal democracies. War and the foundations would, in this sense, again be closely linked.

Although democracy might decrease the likelihood of war, the initial process of democratization, the democratic transition, had the opposite effect (see Mansfield and Snyder, 1995; Snyder, 2000; Mann, 2001). Violent conflicts might involve the creation of a democracy in the face of opposition from an authoritarian central State (as it may be argued happened in the Soviet Union disintegration process) but also in the face of opposition from democracies (as the Irish example confirms). And, furthermore, once new democracies are created, as happened within the framework of the fall of communism in Eastern Europe during the last decade of the twentieth century (the former Yugoslavia and the former Soviet Union can be held as examples) the violence bursting out between the new republics transforms a civil conflict into an international conflict in which two or more new democracies are fighting. What is a civil conflict or an international one depends on the ability of the rebels to succeed in controlling a given territory through violent means in the first stages of the war.

From the State's internal perspective, the split of Yugoslavia showed, for instance, that it was precisely democratization that boosted violence. It was not the removal of an authoritarian State that required a convulsion, as had happened in many transitions since the 1789 French Revolution, but the calling for free elections that strengthened the nationalist movements and the claim for statehood in places such as Slovenia, Croatia, Bosnia-Herzegovina, and Macedonia, not to mention States such as Slovenia and Croatia, which in spite of their turbulent origins in the 1990s, are currently members of the European Union, a homologated club of liberal democracies that required conditions

Constituent power and the constitution 67 on the respect of the rule of law, human rights, and political participation for the candidates for EU adhesion in the ordinary function of their constitutional framework. No European Union authority questioned their access to the organization by asking them which was the context of their independence and their constitutional drafting.

The example of the former Yugoslavia also underlines the likelihood of war that accompanies the formation of a new State due to the actions of a secession movement, whether the independence is declared challenging an authoritarian State, or challenging also a democracy. In fact, the American War of Independence against eighteenth-century liberal Britain might be considered a violent conflict among the most advanced constitutional systems of that time. The American constitution-making process, at least in the first phase, may be considered a case of secession (Buchanan, 1991) in confrontation with an incipient liberal State. On the other hand, a constitutional democracy might appear or be consolidated precisely by frustrating a secessionist movement (a case that counts as a “civil war”) even though political communities at conflict with each other within the State's borders may enjoy some degree of liberal democratic standards. The American Civil War is, in fact, an example of the latter.

The conclusions of the new trends in the anthropology of war coincide, thus, with the intuitions expressed in the first lines of this book: liberal democracies cannot escape from the killing and the destruction in their foundations. Even empirically accepting that human violence has in the last decades globally decreased (both in liberal democracies and in authoritarian States) it is still particularly rare to find a State beginning and a regime transformation, including those leading to the consolidation of a liberal democratic space, completely absent of violence. And, if the rate of deaths caused by human violence in liberal democratic spaces such as those in Europe are extremely low [between 2004 and 2011 the average in Europe was one murder a year per 100,000 people (Harari, 2014, p. 412) still much lower in the case of deaths caused by political motivations], one may cite the hypothesis according to which such almost negligible impact of political deaths within Western liberal democracies are also explained by the absence of deep political reconfigurations during the last decades.

In summary, even if we surmount the problem of violence within existing liberal democracies, it does not follow that such a problem might not persist in the human experience during the creation of new political entities, including in constitutional democracies. What will be our threshold to determine that in the aforementioned processes of founding a constitutional democracy someone has suffered the experience of an infringement in his or her personal integrity as a consequence of a political decision? Just one mortal victim, just one sacrificed life, will be enough in order to state that in such constitution-making, violence has been involved. Popular involvement is a central value in assessing the legitimacy of a constitutional democracy, but human life is the absolute moral value in civilization to which constitutional democracy gives coverage.

Violence during the constitution-making

Although the basic question of our approach might cause us to follow the traces of the violence in the foundation of the political community, it is possible to distin­guish the particular violence that involves the constitution-making in constitutional democracies as well. In fact, as I have suggested, distinguishing between violence during State-building and violence during constitutional drafting has some analogy with the difference appreciated by the theorists of the social contract between the contract concluded by individual persons which supposedly gives birth to soci­ety and that concluded by the people and its ruler which establishes government (see Arendt, 1963, p. 169). I, however, am focused more on the particular set of coercions involved in both stages, while social contract thinkers are centred on the theoretical description of the different situations.

In the stage of the constitution-making process, we may have attacks by out­siders to the constitutional process, as well as violence instigated by groups who are insiders of the drafting process. We might highlight also the examples of a constitution imposed by an alien power (as in Germany or Japan) or the threat of a violent reaction by factual powers in case of not adopting a particular constitu­tional solution (as has happened in those systems whose constitutional order was designed after a transition from a military dictatorship).

In any event, the distinction between the violence displayed during the State-building and the violence detected during the constitution-making might be minimal. In spite of the fact that no blast of violence can be clearly appreciated during the constitution-drafting, violence might also be present in the constituent moment as the continuity of the State-building violence. In other words, original State-building violence persists during the constitution-making since the constitution may be precisely deemed as the legalization of the violence displayed during the creation of the State. Constitutionalism is somehow the way to translate into legal language the factual (and brutal) circumstances arisen in a previous moment.

On the other hand, different phases are also distinguished within the constitution-making drama. Thus, it has been remarked that the general idea of a constitutional process includes at least a drafting, a consultation, a deliberation, an adoption, and a ratification (Ginsburg et al., 2008, pp. 363-364; Widner, 2008, p. 1522). Such categories are invoked under democratic theory in order to assess to what extent the normative conditions regarding popular participation are in every moment fulfilled. Under my perspective, however, the distinguishing of the aforementioned scenarios might be useful in order to detect the influence of any specific coercion regarding each episode. Detailing the instances of the constitution-making allows us to identify with precision the violent conditions that surround it throughout its development.

If violence is involved in the constitution-making process, that is because before establishing the new constitutional framework, a negative act of dismantling the previous legal regime has taken place. In this sense, some authors remark that the creation of a new order is preceded by a decision to abolish the existing

Constituent power and the constitution 69 order, “the negative moment of the constituent power” as Beaud characterizes it (Beaud, 1994, pp. 263-266). The decision to undo would, thus, belong also to the analysis of the constituent power. Constituent power would entail, according to such approaches, not only creation but also destruction.

The great constitutional tradition from the eighteenth century has indeed been inspired by constitutions established in total rupture with the former constitutional regime. Such a pattern might be appreciated in the case of the independence of the American States, and the making of the State constitutions after 1776, spreading their influence on State-building processes in other cases of liberation from colonial rule. But the decision to reject the preexisting order also arises in processes whereby the State is already built, as in the constitutional developments that accompanied the different French revolutionary waves in the eighteenth and nineteenth centuries or in any regime change from an authoritarian regime to a democratic one.

Such “de-constituent” decisions are crucial to define the agent engaged in the constituent operation. The latter is clearly perceived in State-building pro­cesses from national emancipation: the definition of the people, the community of individuals called to participate in the constituent process, might be formed in this moment. In situations of emancipation from colonial rule and in national self-determination processes, for instance, the national-based inclusion or exclu­sion may be established by significant violent disturbances (we might think, for instance, of tragedies such as the partition of India in 1947). Other more regu­lated processes of defining the constituent agent in existing States, such as the ones developed in France or in Italy after the Second World War, in creating the 1946 Constitution of the Fourth Republic in France, or the 1948 Italian Constitution, respectively, could not escape from the fact of emerging from big confrontations in which, beyond the global war, the citizenship of many States had been strongly divided (see Ackerman, 2019, pp. 116-156). In sum, found­ing moments occur at tumultuous times in a country's history, in an anti-colonial conflict, in a civil war, in a legitimation crisis, in a power struggle, or in a contest for consolidation (Albert and Gururswamy, 2019, p. 1).

But coercions, political murders, and all sorts of insurrections and hideous incidents might be given in the specific episodes of discussing, passing, and ratifying constitutions such as the French revolutionary constituent processes at the end of the eighteenth century well testify, with their constituent assemblies or Conventions permanently pressed by upheavals, terror, counterrevolutionary activities, and wars against foreign powers (Elster, 2012a, pp. 21-33). Without leaving France, even the current French Constitution was adopted in 1958 in the midst of the trauma caused by the Algerian Independence War and the threat of a military putsch supported by far-right elements inserted within the French army and the police (Ackerman, 2019, pp. 169-198).

Constitution-making processes dominated by appeals to popular mobilization (from the French Revolution to some constituent experiences in the Arab Spring, see Abat Ninet and Tushnet, 2015) have usually been associated with social catastrophes that run in parallel to the constitutional developments decided in a

constituent assembly or in a broader public arena. But coercions, as we will see in the following chapter, might be mentioned even regarding processes considered more peaceful, such as the passing of the United States Federal Constitution: we may begin with what is known as the Shays' Rebellion in Massachusetts, that according to some historians made the American elites aware of the need for a strong central power, and fostered the Philadelphia Convention (Fritz, 2008, pp. 80-116; Johnson, 1997, p. 91; McDonald, 1968, pp. 103-107; Szatmary, 1980). Elster (2012a, p. 9) suggested that the memory of the Shays' Rebellion explained the desire of the American framers to have a more robust repressive machinery at their disposal and so was reflected in some of the 1787 Constitution clauses. We can then go on to cite the pressure exercised by George Washington and the new federal instances towards Rhode Island in order to force the authorities of this State to ratify the Federal Constitution in 1788 [threatening Rhode Island with both an internal secession and a trade embargo if the Constitution was not ratified (Beard, 1964, pp. 235-237].

Violence and the enforcing of the constitutional regime

And, thirdly and lastly, we have the violence displayed while enforcing the constitutional framework. We have, in this sense, the example of the different ways to impose the constitutional system on those who did not participate in the drafting, as happens in territorial annexations or forced integrations of peoples originally not recognized as members of the constitutional agreement, or as happens with the answer given to the challenges against a constitutional regulation which cannot be faced by ordinary means (including those challenges posed by a democratic vindication that can only be suppressed by force). Since the State regulated by a constitution is an entity that, in Max Weber's terms (1972, pp. 821-824) “successfully claims the monopoly of the legitimate use of physical force within a given territory” its mere existence is in fact established by its capacity of enforcing basic rules in ordinary times (physical coercion which, on the other hand, is still considered an attribute retained by States as sovereign entities and not transferred in its execution to supranational organizations). A constitutional regime relies per se on violence in repressing illegalities as, for instance, providing imprisonment for those common criminals who infringe the criminal law. But paradoxically, as Carl Schmitt (2004), Walter Benjamin (1986, 1989), and Giorgio Agamben (2003) noticed in their theories on sovereignty, something deeper concerning the essence of the constitutional order seems to be involved in repressing exceptional challenges to such regimes by exceptional means (that is, by the violence displayed beyond the scope of the constitutional provisions) the moment in which, to say it in Benjamin's words,

the state, whether from impotence or because of the immanent connections within any legal system, can no longer guarantee through the legal system the empirical ends that it desires at any price to attain.

(Benjamin, 1986, p. 287)

Constituent power and the constitution 71 The violence displayed during the state of emergency, in which the sovereign is recognized, according to Carl Schmitt's famous statement, would be nothing more than the remembrance of the violence perpetrated in the original moment. By suspending the norm, the state of exception “reveals with absolute purity a specifically juridical formal element: the decision” (Schmitt, 2004, p. 13; see also Agamben, 2019, p. 458) which, as we shall see, might be interpreted as the movement to determine a particular allocation of power resulting from a conflict. If, according to Schmitt's vision, the constituent power never becomes exhausted and remains present alongside and above every constitution (see on this point, Roznai, 2017, p. 127; Scheuerman, 1997, p. 146), the crossroad that the state of emergency represents in terms of violence may be well considered as the resurrection of the original (and normatively unbound) power within the life of the constitutional order. Notice that differently from Schmitt, who still associates the constituent power with some democratic tenet such as the people's ability to override the legal order through the popular will (the resurrection of the constituent power would be in this vein close to the reappearance of the popular sovereignty) my theory focuses rather on the reemergence of the coercive means that had been expressed in the foundation of the legal system. The constitutional system would be, thus, reaffirmed if the State's violence is successful in repressing the existential challenge or would derive in another political regime if it fails to maintain the status quo (see Atria, 2020, p. 53). The latter might be expressed as a revolution that leads to another allocation of power and, thus, to another political system able to destroy the entire matrix of pre-existing institutions (as has been experienced in Europe from the French Revolution to the Russian Revolution) or as a constitutional transformation within apparently the same constitutional regime, which is how Bruce Ackerman (1998, pp. 11-13) understands the evolution of American Constitutional Law. Such American constituent episodes, nevertheless, even differentiated from European revolutionary counterparts by being developed within the same existing institutions, had not been deprived, in the same fashion as the European ones, of crimes, wars, or massive human rights violations.