Everything promised by a democratic constitutional convention is at odds with what a constitution actually does.by Tom Cutterham / August 14, 2012 / Leave a comment
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…