On New Year’s day a new constitution came into force in Hungary. A new Icelandic constitution, which incorporates online suggestions from the public, could be ratified next year by referendum. In Tunisia, Egypt, and Libya—and soon, perhaps, in Syria— new constitutions are being established. Constitution-writing hasn’t been this fashionable since the collapse of the Soviet bloc. With Lords reform now off the government’s agenda in the UK, a written constitution here seems far-off, and an EU-wide constitutional convention is just as unlikely. But it’s worth asking, before we get carried away, what problems constitutions are meant to solve —and what problems they cause.
Trying to codify the British constitution or write one for the EU, even if the intention were not to change anything, would have to involve a candid look at the institutions and processes of our government. That might be reason enough for the establishment to worry. A genuine constitutional convention—one that opened up those institutions and processes to democratic debate and negotiation—would be even scarier. The US constitution was written behind closed doors for a reason. For progressives and radicals, an open convention would be an opportunity to expose the reality of the current system and to confront the power of unelected constituencies.
The real problem is what happens next. Everything promised by a democratic constitutional convention is at odds with what a constitution actually does. Opening negotiations over the distribution of power and privilege is one thing, but a constitution’s real purpose is to close them down—to set something in stone, a fundamental law to trump all other laws.
Hungary’s Fidesz party has been more flagrant than most in entrenching its own power, including over the judiciary and central bank. Iceland, we can assume, will produce something less objectionable. But making a constitution always implies the hubris of permanence—a rule to bind future rules. The anti-liberal Weimar theorist Carl Schmitt defined real political power as the power to declare an exception. Writing a constitution is the liberal version of that dictum.
This hubris has always sought justification in political philosophy. For the enlightenment thinker Jean-Jacques Rousseau, a legitimate constitution would have to be an expression of the general will; but how is that will to be formulated or expressed? As the philosopher Simon Critchley recently put it, “Political self-authorship [for Rousseau] has to be underwritten by a ghost author, a quasi-divine legislator.” For a constitution to be really effective, it has to detach itself from the work and ideas of ordinary mortals. The best example of that principle at work today is the United States.
America’s sense of identity, its public and political rituals and declarations of faith, are bound up with its constitution, the longest standing in the world. The Tea Party movement has demonstrated the extreme end of American veneration for the founding fathers and their constitution. Tea Partiers practice a form of “historical fundamentalism” which mythologises history at the same time as rejecting the present, as Harvard historian Jill Lepore has argued. They see the founding and ratification of the constitution as a defining and providential moment—and there has never been a shortage of authors and pundits lining up to declare it a miracle, just as Rousseau said it should be.
The effect of all this on American politics has been as visible as ever this summer, in the Supreme Court battle over President Obama’s healthcare act. Of course, a constitution requires judges to interpret it, to resolve disputes about what it says and means. So what happens when “ultraconservative judges” act “in spite of text, precedent, and principle” to strike down a law they oppose ideologically, as they almost did this summer?
That’s one problem, but a more fundamental one is when constitutional issues serve to refract and obscure political ones. A national debate can end up revolving around the meaning of a few phrases, rather than people and their needs. Whenever one side accuses the other of playing politics with constitutional interpretation, it helps to hide the fact that politics—for example, the government’s provision of healthcare—are what’s actually at stake.
A mythology of the founding is what sets the stage for this problem. Only if the moment of constitution-writing is understood as a miraculous event and its authors’ original intent endowed with permanent, exceptional relevance does the idea of a fundamental law make any sense. Britain has its own versions of this mythology. It might seem plainly absurd to concern ourselves with the “original intent” of the House of Lords, say; but isn’t the Magna Carta our great democratic document?
Constitutions have never provided the protection they seem to promise against power: neither in Weimar Germany, nor George Bush’s America, nor in Hungary. The illusion of constitutional protection against authoritarian state power actually helps create the conditions in which authoritarian power can be achieved, and that’s something we should worry about in the countries of the Arab Spring too. Advocates of democratic conventions for Britain and the EU are right: we should lay completely open the question of where power and privilege lies, and how these are used. Where they’re wrong is in the suggestion that that process should end in a constitution, or that it should end at all.