What Does it Mean to be a Constitution-Maker?

Constitutions tend to be drafted, debated, voted on, enacted and so forth. Hence, there may be many people (and arguably groups of people) involved, who are doing the drafting, debating, voting or enacting.

A. Some Clarifications

What counts as a valid legal argument in a given legal system at any given time is always grounded in the practice of that legal system at that time.^[296] No philosophical, historical or sociological argument may override even the most outrageous fiction adopted as a matter of legal practice (unless, of course, the practice itself adopts a test of, for example, philosophical propriety).^[297] True, legal theory (or jurisprudence) - just like the disciplines of history or sociology - will rarely, if ever, supply a conclusive legal argument. However, jurisprudence has a special relationship with particular legal practices. In some cases, jurisprudence provides a good starting point for a strictly legal inquiry into the content of the positive law.

This is so in the case of the legally relevant identity of those who made the particular constitution as law. There are good reasons to presume that this legally relevant maker is the person or the group of people jurisprudence says it is. Such presumption may be rebutted through evidence that the particular legal practice adopts a different understanding, but when such contrary evidence is lacking, a jurisprudential argument has a much better claim to guide legal reasoning than, for example, a historical one.

My account of identity of constitution-makers relies on the notion of legal, or at least legally recognised, authority to make a constitution as law. This is not necessarily the much-discussed constituent power. At least in principle, there is a distinction between the presumptive holder of the ultimate (moral, political) power to effect radical constitutional change (eg, the people) and a person or a group recognised as authority who made some particular constitution as law (eg, a monarch or some representative body). In any historical case, the former may also be the latter, but this is not a necessity. The introduction of the issue of constituent power into the discussion of legally relevant authorship of a consti­tution as law may obscure that distinction through the sheer immensity of the notion of sovereignty. In particular, the concept of popular sovereignty seems so enticing that some authors are unwilling to look past it and end up commit­ting themselves to very implausible views about agency in constitution-making.^[299] Of course, to an extent, this stems from conflating the issue of identifying the historical maker and the issue of identifying the contemporary source of authority of a constitution. As Joseph Raz has shown, it is very likely that in cases of long- lasting constitutions, the answers to the two questions will differ significantly.^[300] Here, I am not interested in the latter problem, merely with the search for the historical maker.

Richard Fallon in his helpful discussion of constitutional legitimacy distin­guished between ‘legal, ‘sociological’ and ‘moral’ legitimacy.^[301] My argument does not, strictly speaking, concern legitimacy of any constitution. However, issues of legitimacy and of legal authority to make a constitution are closely connected. Fallon’s typology helps to clarify the scope of my argument. Legal legitimacy means approximately the same as lawfulness, determined within a legal system (is the action legally permitted? is it a proper exercise of a legal power?).^[302] Sociological legitimacy means that individual members of a society accept a constitution (and constitutional institutions).^[303] Moral legitimacy means that a constitution is morally justifiable or worthy of respect.^[304]

Just like Fallon,¹¹ I adopt the framework of Hartian legal positivism. This framework entails that for a constitution to exist as law, it means that it is both legally and sociologically legitimate (at least in the social group of legal officials). In fact, legal legitimacy is necessarily grounded in sociological legitimacy among legal officials. I provide more detail of that framework in the next subsection. What is important to note now is that moral legitimacy is not a part of that picture. A constitution has to be sociologically legitimate to exist, but whether it is morally legitimate is a contingent issue. A constitution may be brought into existence, and continue to exist, even if it is morally illegitimate (and when the constitution­makers had no moral mandate to make the constitution or when they were acting immorally in doing so). Hence, my account of agency in bringing about a consti­tution’s existence as law has two legs: one connected to legal legitimacy and one connected to sociological legitimacy. I now turn to that account.

B. The Core Account

On my view, to be a maker of a constitution is to either:

(1) exercise pre-existing legal authority to make the constitution; or

(2) to have one’s intentional act purporting authoritatively to make the constitu­tion as law recognised as the reason for acceptance of the constitution as law.

I distinguish between situations where the constitution-maker is designated by the law as it is at the time of the making and where the maker is not so identified. The former may only be the case when the making of a constitution is lawful, that is, when it is either done in accordance with the rules of change - ie, through an exer­cise of a pre-existing legal power to change the law - or when it is merely validated by the rule of recognition as it is at the time.¹² The rule of recognition is a social rule, which is at the foundation of every legal system and provides the ultimate criteria of what counts as a law of that system (criteria of validity).¹³ It could be that the rule of recognition identifies a source of law (and of a new constitution) on which the legal system in question does not already confer a legal power. In particular, the rule of recognition could so identify someone’s actions not intended to make law. However, just because it is possible does not mean that it is likely. Practically speaking, we can assume that if making of a constitution is lawful, it is so because of an intentional exercise of a legal power to change the law. This provides us with an easy case of identity of the constitution-maker: it is the person or the body that has exercised its legal power.

The matters are more complicated in the second case: of those constitution-makers who are not designated by the law as it is at the time of the “ibid 1805-06.

¹² On the notion of the rule of recognition, see Hart (n 2) ch 6. See also Mikolaj Barczentewicz, ‘The Illuminati Problem and Rules of Recognition’ (2018) 38 OJLS 500.

¹³ ibid. constitution-making. A person or a group of people may be a constitution-maker if it is for the reason of their (claimed) legal authority that the constitution is accepted as law. What comes into play here is recognition of legal authority to change the law - authority not grounded in the content of the law as it is at the time the authority is purportedly exercised.

An example from Joseph Raz provides a helpful illustration.^[305] The Declara­tion of the Establishment of the State of Israel was proclaimed on 14 May 1948 by the members of the Jewish People's Council. The group of people who had issued the proclamation did not have a legal power to do so conferred on them by any previously existing legal system. And yet, they granted legislative power to them­selves as the ‘Provisional Council’ of the new State of Israel.^[306] Raz claims that the group that proclaimed the Declaration had a legal power to make it as law merely because it was later recognised as having such a legal power by the participants of the new Israeli legal system.^[307] I do not want to go as far as to say that they in fact had a legal power, but I think that the Jewish People’s Council was in this case the constitution-maker. This is so because the Declaration was accepted as law for the reason that it was made through a purportedly authoritative act of proclamation by the Council.

There are two sides to this coin: (1) one has to act intentionally purporting authoritatively to make a constitution as law; and (2) one’s so acting has to be the reason why the constitution is accepted (one has to be a de facto authority). Regard­ing the first point, I do not claim that all exercises of legal powers are necessarily intentional or that it is impossible to comprehend an unintentional exercise of a legal power. However, exercising an authority to change the law (evenly a merely purported authority to be recognised ex post) requires direct intent. Without at least presuming such direct intent, one’s actions are not intelligible as actions of an authority.

On the second point, for a constitution to be accepted as law means that it meets the criteria of validity from the rule of recognition.^[308] A constitution may be a valid law because the rule of recognition identifies it directly (‘eo nomine’) or because the rule of recognition identifies the source of the constitution or the way it was made as a source of law.^[309] A constitution-making authority figures in this picture as a reason to accept the rule of recognition (or a part of the rule of recog­nition) that makes it the case that the constitution is law.

HLA Hart famously banished such considerations from jurisprudence, but I think John Finnis is right that some questions about the reasons for acceptance of some legal rules as law are valid jurisprudential questions.^[310] The issue of legal authority in constitution-making is a good example: it is jurisprudentially inter­esting that some rules of recognition are accepted for, allegedly, legal reasons.

Whose acceptance counts? Strictly speaking, acceptance by legal officials is constitutive of legal systems and from a jurisprudential perspective, it does not matter what the position taken by anyone else is.^[311] However, in relation to many historical cases of constitution-making, we do not have evidence fine-grained enough to allow us to reliably distinguish between the reasons for acceptance among the general public and those of the officials. Hence, in the applicative part of this chapter, I will not, for the most part, rely on this distinction.

In principle, it could be that on my account there is more than one constitution­maker. On one interpretation, this is what happened in Australia. The Australian Constitution was enacted by the Imperial Parliament, and this is what makes this body the constitution-maker according to my first criterion. However, it may be that the Australian people have accepted the Constitution for the reason that it was adopted in referendums in the colonies, which in turn may suggest, for example, that those who participated in the referendums also have a claim to being the original constitution-maker (on my second criterion). As I will show below, I am sceptical of this interpretation of the events, but it is consistent with my general account.^[312]

C. Group Agency

What kinds of entities may be constitution-makers? The simple case of a natu­ral person acting alone as an authority does not fit any of the historical examples discussed here, but it is not unheard of (eg, constitutions enacted by monarchs) and certainly fits my model. Somewhat more controversially, I adopt the view that groups may also satisfy the criteria presented above and thus be constitution­makers. There are two kinds of groups that I will invoke later in the chapter: institutional and ephemeral. The latter term comes from Christopher Kutz’s mini­malist account of group agency.^[313] Kutz defines ephemeral groups as ‘groups whose identity as a group consists just in the fact that a set of persons is acting jointly with overlapping participatory intentions’. ^[314] This means that an ephemeral group exists and acts only if all the members of the group have overlapping intentions to participate in some common project. Any ‘group’ of people that does not satisfy this requirement is a mere collection of individuals and has no capacity for group agency. Ephemeral groups may, in principle, be constitution-makers, but as I show below, in practice this is likely to be very rare. Institutional (complex) groups, on the other hand, have rules that specify what individual actions count as actions of the group and in what circumstances (eg, a constitutional convention).^[315] If an institutional group is constituted by the law (eg, corporate bodies), then the law defines who counts as members of the group and which actions of those members constitute actions of the group.

One important feature of this account of group agency (both for ephemeral and institutional groups) is that it does not require all the members of a group to intend the achievement of the goal of the project to which they are contributing - it is enough that they ‘only know that their actions are likely to contribute to its realization’.^[316] Hence, even if a member of a legislative body votes against the enact­ment of a constitution and the member is outvoted, they still contribute to the group action of making the constitution.^[317]

For a group to have the intention required to be a constitution-maker (that this group is acting with authority to make a constitution) means that such an intention is established in a proper way for this kind of group. In the case of an ephemeral group, there needs to be an overlap of individual participatory inten­tions. Hence, for example, if the people of a country (taken as an ephemeral group) are to act together to make a constitution as an authority, they all need to intend to contribute to that goal or at least a vast majority of them has to have such intentions (even if some of them do not intend that a particular project of a constitution is enacted). Evidence of low popular participation in a process of constitution-making would count heavily against a hypothesis that such an ephemeral group acted. In a sense, matters are simpler with institutional groups. As long as we know what the rules of the group are, then all that needs to be seen is whether the rules are followed.

D. Must there be a Constitution-Maker?

It may well be that some constitutions do not have makers in the sense presented here. To begin with, attributing intentions to groups is controversial and some­one might object that if to be a constitution-maker is to act intentionally, then certainly no group could be a constitution-maker. It is not my purpose to defend the notion of group agency; I will only note that, irrespective of the debates in philosophy of action, acceptance of group agency works well with ordinary legal talk. Among the familiar examples of law-makers, many, if not most, are groups. My argument does not rely on the metaphysical view that groups, strictly speak­ing, exist. All that is needed is that for legal purposes, we can speak as if they did.

Another argument against the existence of a constitution-maker behind any specific constitution is that the constitution in question was not made law through an exercise of authority. An important example of this is the view that the US Constitution came into being as law only through the continuing assent of those it was supposed to govern.^[318] In other words, the US Constitution is law because it has been treated as such and not because some authority enacted it (it has been accepted only for cont ent-dep endent reasons). In a sense, no one made the Constitution because no one may be considered responsible for it being a part of the legal system. Surely, there were people or groups causally connected with the emergence of the Constitution, but their actions could not bring about the legal validity of the Constitution.

There are two versions of this argument. One I fully endorse. According to this version, there is a special way in which a legislature is responsible for a statute becoming a law (a change in law directly due to an exercise of a normative power to change law). This kind of responsibility for something becoming a law does not take place when a constitution is made by unlawful action. In other words, there can be no normative power to directly change the rule of recognition so that it features a new constitution (unlawfully made).

The other version of the argument also denies the somewhat weaker sense of authority in the process of constitution-making with which I am concerned here. This second approach is more plausible when applied to the problem of accounting for the current legal effect of a long-standing constitution. However, it fails when applied to the period immediately following the making of a constitution. This view does not explain why a particular constitution was accepted as law instead of any alternative or why it was accepted at all. If we ask about the reasons for accept­ance, then this inquiry is likely to direct it back towards some constitution-making authority.

For example, plausibly, the American people have accepted the US Constitution because they recognised the authority of those who acted claiming to have author­ity to make the Constitution as law. Of course, an alternative view is conceivable on which the American people are and always have been philosophical anarchists choosing to accept the Constitution for purely content-dependent reasons. Even so, why would those philosophical anarchists consider acceptance or rejection of the Constitution as law if there had been nothing significant about the pronounce­ment of the document as law (by someone claiming to have authority to make such a pronouncement)?

As Joseph Raz suggests, the special role of the makers of a constitution may be stronger when the constitution is new: the citizens and officials are then more likely to rely on the authority of the makers as a reason to recognise the constitu­tion as binding.^[319] This role tends to diminish over time. It could be that, in the early days, the constitution-making power of the authors of the US Constitution provided the document with authority, but with the passage of time, the situation has changed.^[320]

It may also be the case that views on who were ‘the founders' of the consti­tutional order in question, and what their significance was, evolve over time. Simon Gilhooley in his chapter in this volume argues this took place in the US Constitution's first decades.^[321] I want to stress that such later views are not directly relevant to the identification of an original constitution-maker. However, they may feed into the special significance the law gives to some historical figures, as I will discuss below in section III.C.

One last clarification is in order. I do not wish to suggest that those who initially accept any constitution as law do so only for content-independent reasons.^[322] Most likely, a mix of content-dependent and content-independent considerations figures in their practical reasoning. Quite plausibly, the US Constitution would not have been accepted if its content had been much less agreeable, even if the same agent had been responsible for making it as something to be accepted (for example, if the ratifying conventions were to ratify a constitution establishing a monarchy). My purpose is to look into the content-independent part of that mix, but this is not to deny the importance of the other part.

III.