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Lilla Nóra KISS: Constitutionalism: Universal but Unique?

In the current “rule of law” climate, a book such as the one reviewed hereunder might provide us with some much needed guidance in our arguments over what the concept of constitutionalism is and what it really means in terms of the rule of law. In his 2019 book titled “Revolutionary Constitutions: Charismatic Leadership and the Rule of Law”, Bruce Ackerman ambitiously addressed the topic of constitutionalism by using a unique comparative approach. His comparison focuses on three ideal types (revolutionary outsiders, responsible insiders, elite construction), in which he elaborates in each of them the four developmental phases (from Time One to Time Four) of constitutional development. The scientific uniqueness of the Author’s approach is the applied categorization of constitutional changes and the stages of operation of the post-change systems. Constitutionalism – as the Author defines it – “is part of a larger dynamic”; it should always be discussed. It means different ways of legitimizing power, its “rise reshaped modern notions of authority”. Ackerman asserts that considering the constitutionalism “as a one-size-fits-all ideal” is a mistake. This is one of the most valuable statements of the book in my view, as it turns into relative (or correlative) all values that are supposed to be objective and clear, transparent and without any doubt. If the reader presumed that constitutionalism is a universal value-system, the Author provides convincing arguments to the opposite. Even if the Readers might have some common idea about the fundamentals of constitutionalism, it evolved via very diverse ways under altering conditions all around the world. Literature on constitutionalism generally treats this as an optimal status consisting of democratic values in a rule of law state functioning within a framework having guarantees.


Ackerman treats constitutionalism as a process of change and the post-change-development of the society from a legal and political perspective.

Ackerman explains that the different cultural and historical heritage of states led them to multiple levels and forms of constitutionalism. All constitutions were transformed by social, cultural, and historical dynamics. Different movements (such as revolutions) strengthened the transformation into “powerful engines of legitimation” in the last century. Even if the Author analyzes social, legal, and political changes that arose in the twentieth century, he raises concerns and draws consequences that could be interpreted and monitored today.


The book reveals the Author’s individual vision of historical events determined by the types of constitutional movements and development, by which he established a new categorization system.

The comparative work often refers to the Weberian system (and highlighting the differences of the new approach). The fundamentals that are defined by Max Weber and his anti-positivist followers may still serve as points of reference in putting the social sciences on a rational footing. Ackerman considers his own approach positivist in only one sense: when it comes to defining the nature of a constitutional revolution. The positivist approach distinguishes law from non-law but does not question how a system legitimates itself. This leads to both over- and under-inclusive definitions according to Ackerman. Therefore, the Author also deters from the leading legal positivist perspective besides focusing on past events from a new approach.


I find the book particularly valuable in re-evaluating events that have now become historic in the light of past, recent, and present events. The Author’s assertions have a common ground within each type: these events impact on constitutionalism, its establishment or disestablishment, and its role as a source of authenticity. The interpretation is vital as our past often determines our future, and this also is true for the states. The durability and further development opportunities of mature democracies are results of the constitutional development of states. If the states evolve in terms of their constitutionalism in different ways, their conditions for the rule of law will not be the same either.


Finally, the Author is deviating from the conventional bipolar division of the legal world (common law, continental law) and applies a four-stage dynamic of constitutionalism(Time One: mobilized insurgency, Time Two: constitutional founding, Time Three: succession crisis, Time Four: consolidation). He attempts to rethink comparative law by distinguishing his theory from former and contemporary theoretical viewpoints. His comparison is based on a chronological order of development stages of revolutionary, establishmentarian, and elitist models of constitutionalism, and, on the other hand, on different countries’ case studies. Ackerman uses evaluative, analytical, and comparative methods by which he presents the constitutional development from the early stages of the regime changes until the afterlife of the established legal orders. He does this by guiding the readers to India, South Africa, France, Italy, Poland, Iran, Burma, and Israel. Ackerman finishes his book by a chapter about American exceptionalism.


Lessons for future ‘influencers’: pathways for legitimizing and elaborating power (the revolutionist, the establishmentarian, the elitist)


Ackerman distinguishes three types of constitutionalizing processes and examines their development within their respective pathways. By using the model-system, the Author presents in the first part some constitutional revolutions in six chapters, and further elaborations in seven chapters in the second part. The last chapter is an outlook on the US constitutional system.

The first scenario is the revolutionary movement transformation which mobilized masses of outsiders to change the system controlled by the insiders. The Author points out some success stories of this type, such as India, South Africa, France, Italy, Poland, Israel, and Iran. (Even if the Author does not name the country here, I would add Hungary to this list as the development is very similar to the Polish example.) However, these constitutionalizing revolutions are not uniform. According to Ackerman, modern revolutions have two main types: the totalizing variant and the evolutionist. The latter is described as an approach to “propose pragmatic alternations in the status quo”, while the totalizing one intends to reach changes in multiple spheres of life. For revolutions to be successful, he asserts, must meet some conditions under certain circumstances. One of these is self-consciousness (which means that revolutionaries have a common ideology or combine elements of ideological themes: liberal, neoliberal, social democratic, imperial grandeur, egalitarian, etc.). Another inevitable element of a successful revolution is an active movement party. After the successful revolution, the previous and the new regimes are connected by a transition. The new system needs democratic reorganization which requires electoral victories. The new era or regime tends to keep older traditions that recognize the legitimacy of the revolutionary; therefore, the adaptation is unconventional. Revolutionary movements also have a central player: charisma. Ackerman distinguishes between organizational charisma and leadership charisma. The relationship of these types of charisma is complex, sometimes leaders rely on their organizations while in other cases they destroy their movement organizations to build their cults of personality.


The second and third scenarios are soft versions compared to the (sometimes bloody) revolutionary solution for changing the reigning system. In the second (establishmentarian) type, the new legal and political order are built by pragmatic insiders who tend to reach compromise. The insiders invite pacific groups of outsiders into a common brainstorming and by involving some of them, the common sense of the different opposing groups could be reached without a revolution. This solution could be defined as a soft strategic transition. The classic example for this solution is the United Kingdom. The UK had an influence on Australia, Canada, New Zealand.

The third type is very similar to the second, but the change here lacks the “popular uprising” that could be found in the first two models. Ackerman called this type an “elite construction”. In this case, the old system begins to unravel while the society is “relatively passive”. In this situation, a power vacuum emerges that is occupied by the political and social elites who become the engines of the new constitutional order. The Spanish regime-change serves as an example for this type.


The main difference between the first and the latter two scenarios is that the first requires a very active outsider (out of the reigning system) movement, while the others are changing from the inside. The distinguishing feature of type two and three is that in the second case, there is an outsider movement with soft and radical elements (and the model uses the consolidated groups of outsiders to dilute the system), while the third model lacks social movements. The change comes from the top, from the wealthy and educated political and social elite. In the Weberian system, the first scenario could be the root of the charismatic legitimacy, while the second and the third could probably have rational legitimacy. Ackerman’s scheme is lacking the transcendent and the traditional models of legitimacy, but the former is not conceivable in the twentieth century, while the latter usually pertains to kingdoms which became rather formal or ceremonial in the mentioned period. The previous century put an end to several charismatic (often dictatorial) leaders whose ‘systems’ became replaced by well-estimated rational and legitimate regimes.


The Author summarizes that all types face different problems arising from the “constitutionalization of charisma” and the “bureaucratization of charisma” over time that is emphasizing the legal and political dynamics. For example, the revolutionary legitimacy fades over time as the revolutionary generation dies off. Their heritage is fading and will not sustain the system forever. In all types, the political authority moves toward “the normalization of revolutionary politics”. A significant part of this normalization process in the first type is the judiciary, which first develops the new system’s “early constitutional doctrines in less provocative settings”. Later, the “jurists are aware of the fragility” of the doctrines. Lastly, jurists are “using the early judgements with growing self-confidence as authoritative precedents to resolve hot-button disputes between rival politicians”. As the second and third types lack revolutionary movements, the maintenance of the new order is relying on the elections. The party that triumphs in the elections is entitled to enact legislation and the judiciary cannot strike it down by referring to its noncompliance with the former systems’ norms. The judiciary therefore plays a significant but secondary role compared to the first type. According to the Author, the “judges may play a constructive role in type two by returning problematic statutes for reconsideration”. Ackerman also expresses that while the judges may play a constructive role, they “must recognize the parliament’s democratic authority to demand that the courts faithfully implement the new legislation”. This is an interesting perspective if we consider that judicial decisions shall be reasoned, objective and defendable. In type two, Ackerman defines the establishment / disestablishment as a problem. In this system, the lack of establishment is often replaced by referendums that are – as Ackerman writes – a “far deeper threat to the establishment of tradition”.


The Author critically points out that “the referenda open a way for demagogic appeals to ordinary citizens (who lack the resources of time and knowledge for fateful choices)”. He mentioned the Brexit as an example for this. The elite construction model faces challenges of authenticity. The obvious question is raised by the Author: how do the elitists generate support from the general population? The Spanish constitution provoked crisis in Catalonia and in the Basque Country for decades. The Germans created their post-war constitution (the Basic Law) in 1949 under military conditions. The naming refers to the Germans belief that their Charter did not deserve the status of a constitution. Therefore, they asserted a Final Article that expresses that a “truly authentic constitution could only be achieved when East Germans could free themselves from Soviet control” and when Germany is reunified. The authenticity problems arose in 1989 again when the Berlin Wall fell. The German Reunification Treaty enabled the German Democratic Republic (GDR) to become part of the Federal Republic of Germany (FRG) by signing the agreement. The authenticity aspect of the Treaty is that it extinguished the existence of “East Germany” by the signature of that agreement. Due to the active role of the German Federal Constitutional Court, the Basic Law became a central engine for the German constitutional and political identity. The Author demonstrates the role of the judiciary and the constitutional courts in the constitutionalizing process in which their decisions support the new system’s establishment.


Case studies: different countries, similar challenges?


Ackerman starts to present the first type of constitutionalizing programs by guiding the readers to India. The country (which is considered to be the largest constitutional democracy in the world) faces poverty, illiteracy, and a caste system. (The latter – from an egalitarian perspective – cannot be considered as democratic. However, “being democratic” from a Western perspective would presume a one-size-fits-all kind of solution for constitutionalism that cannot be achieved on such a diverse globe as ours.) India must handle several other challenges arising from its various ethnic and linguistic diversity. Ackerman raised the question of how India could sustain its constitutional order under these circumstances. The answer is the Indian Supreme Court and its role in defending the nation’s constitutional legacy and identity. The activity of the courts – which operate on a common law basis – became significant in the country’s succession crises of the 1970s.


South Africa has several parallels to India in the way of forging revolutionary charisma into constitutional authority. However, India applied a “declining empire scenario” while South Africa used a “revolutionary bargaining scenario”. South Africa struggles now with its succession crises according to the Author.


France and Italy are similar in the sense of their constitution building efforts after the Second World War. Both countries faced resistance movements of Communist, Socialist, and Christian democratic ideologies. The French Commander (later President), Charles de Gaulle allowed himself to challenge the resistance by the power of the military. He became the nation’s first President, and to date, the semi-presidential system is considered to be a relative success-story – according to the Author – as thirty-five countries already have adopted the Gaullist model.


In Italy, the Constitutional Court emerged from the succession crisis to gain political recognition as the guardian of the nation’s legal principles defined during the revolution. In Poland, the movement behind the regime change was the largest Solidarity agitation that led to the adoption of a semi-presidential design. This was evaluated as “less successful” by Ackerman. The reason behind the failure of the semi-presidential system in Poland was the competitive approach of Solidarity group leaders (in favor of a parliamentary and of a presidential system) instead of cooperation. This led to a post-Soviet leadership that was consolidated enough to reach consensus and adopt the new (elitist and not real revolutionary) constitution for Poland. The failure of the semi-presidential system therefore triggered the constitutionalizing of the charisma (both leadership and organizational).


The governments of Iran and Israel were both results of revolutions. The Zionist government was committed by the Israeli Declaration of Independence to promulgate the constitution, the liberal social democratic leaders (such as Ben-Gurion) passed this obligation to the movement party (Mapai) which became the constituent assembly. In Iran, the Supreme Religious Leader took advantage of the moment to establish the constitution on the basis of popular sovereignty. The adoption of the French style semi-presidential system (that did not bring luck to the Polish) was a successful attempt in Iran. Hassan Habibi drafted the constitution and used the French system as a source of inspiration. In Burma, military brutality followed the call for the new beginning in 1989. Aung San Suu Kyi was arrested until the movement forced the military to give her a seat in the government.


Finally, the Author dedicated a chapter to examine American Exceptionalism in order to enlighten the country’s constitutional crisis in the age of President Trump. To guide the reader in American constitutionalism, Ackerman starts by introducing Exceptionalism in the understanding of Justices Scalia and Thomas, and the cosmopolitanism represented by Justices Breyer and Kennedy among others. Ackerman calls for a rooted cosmopolitanism – “an approach that recognizes America’s exceptional constitutional culture” – that generates new insights. The Author analyzes US constitutional development with continuous comparison between the formerly presented countries’ revolutionary changes and establishments. In the end, Ackerman talks about the consequences of Roosevelt’s repudiation to constitutionalizing the charisma in the 1930s on the recent events of the Trump presidency.


Concluding remarks


In “Revolutionary Constitutions”, Ackerman approaches constitutionalism and several historical events that formed the current systems from a unique, 21st century direction. Helping readers understand the different movements and the succession of the regime-changes in various countries, Ackerman enables the comparison of today’s systems with the former ones.

. In doing so, he leads the readers into today’s America and attempts (in my view successfully) to interpret current processes on the basis of past events. According to John Bernall, “a nation who do not know its own history deserve to live it again". I believe that knowing a bit about other nations’ struggles for their values also is important. Ackerman’s book helped me understand that even if we lived on different continents and used different legal systems, we probably would face similar challenges. A good example for this is our health crises arising from the COVID-19. Our countries treat the pandemic in various ways, but we still have mutual points and opportunities to cooperate. The health crisis caused constitutional turbulences within the EU as it has no competence in health matters, but the pandemic – of course – did not stop at the borders of the states. The Member States locked down their borders, introduced extraordinary rules for daily operations in several institutions, restricted the free movement of people and goods in the Internal Market which caused several economic and human rights issues. Several (rather liberal) Member States used the COVID-crisis to raise and force the idea of a European Health Union complemented by a Social Europe, while other (rather conservative) Member States denied deepening the integration in that way. COVID-19 affected the constitutional dialogue related to the future of the European Union and the level of cooperation among the Member States as well. Even if the EU is not a state, it struggles with relevant issues of constitutional identity, and so do the Member States – sometimes on a collision course. Ackerman’s comparison of certain European states was informative for me as a European citizen. Probably, in the next edition, the Author could present more countries. The analysis of Scandinavian and Baltic states could add a great value to this comparative approach in any upcoming work.


I particularly appreciated the short outlook to the brief cultural diagnosis of the European Union (EU). Even if the EU is not a state, it faces constitutional challenges. On the one hand, the EU has its own elite constitutional legitimacy, while, on the other hand, its Member States emerge from different legitimation pathways that cause collision when it comes to crisis management or decision-making affecting sovereignty. The Author points out that the leading European nations – in which group he considers including the Member States with the largest populations (Germany, Spain, France, Italy, Poland and [at the time of the publishing of the book Great Britain]) – came along in different constitutional ways, therefore they have trouble in finding common grounds for a more perfect Union. I guess, this book could serve as a guide for mutual understanding of the Member States on matters of constitutionalism.


To sum up, I conclude that the book has provided insight to the past through a lens of pathways to create a better understanding in a unique and useful way. Even if the content goes back to historical ages, the effects of those revolutionary events and constitutional transformations can still be felt today. Therefore, we should always draw on the past to have better conclusions for the future.

 

Lilla Nóra KISS is a postdoctoral visiting scholar at Antonin Scalia Law School, George Mason University, Virginia. Lilla participates in the Hungary Foundation’s Liberty Bridge Program and conducts research in social media regulation and regulatory approaches. Formerly, Lilla was a senior counselor on EU legal affairs at the Ministry of Justice and she has been a researcher and lecturer at the University of Miskolc (Hungary), Institute of European and International Law for five years, where she taught European Union law. Lilla obtained her Ph.D. degree in 2019. The topic of the dissertation is the legal issues of the withdrawal of a Member State from the EU.


Her current research interests cover the legal dimensions of Brexit, the interpretation of the European Way of Life, and the perspectives towards social media regulation in the USA and in Europe.



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