Vol. 33 No. 02 (February 2023) pp. 24-27CONSTITUTIONAL REVOLUTION, by Gary Jeffrey Jacobsohn and Yaniv Roznai. New Haven and London: Yale University Press, 2020. pp. 384. Hardcover: $65.00. ISBN 978-0-300-23102-1.
Reviewed by András Sajó. Department of Legal Studies. Central European University PU. Email: Sajoand@ceu.edu
This book is a felicitous combination of two research interests: Gary Jacobsohn is famous for developing one of the most well known theories of constitutional identity, while Yaniv Roznai is rightly appreciated for his original monograph on (unconstitutional) constitutional amendments. They “understand identity as an interactive process whereby a constitution, much like a person, develops its distinctive character or individuality through engagement with its environment, within the broader context of its being” (p. 125). They agree with the philosopher Charles Taylor’s insight, “[M]y own identity crucially depends on my dialogical relation with others” (p. 125). This dialogical approach is central to the book: the issue is who participates in the dialogue.
The authors are not only interested in how far amendment enables the maintenance or furthers the development of constitutional identity, but also in its fundamental replacement in the form of constitutional revolution. In their account, “a constitutional revolution can be said to exist when we are confronted with a paradigmatic displacement, however achieved, in the conceptual prism through which constitutionalism is experienced in a given polity. In some cases, this achievement unfolds incrementally and without the benefit of the sort of dramatic rupture and follow-up usually associated with generic revolutionary activity” (p. 237).
Continuity of the constitutional system is a fundamental question of legitimacy. This classic legal position was presented by Hans Kelsen about one hundred years ago. The great Austrian legal theorist was of the view that legal revolution means the amendment (creation) of the constitution in a process that disregards the rules of amendment (revision, new constitution making) of the constitution in force. The authors recognize the merit of the formalistic position, but their fundamental thesis is that a constitutional revolution can be a substantive, long-term development that has its own legitimacy. Thereby, the authors oppose a very influential tenet in constitutional theory: Bruce Ackerman’s constitutional moment paradigm (and in certain respects Hannah Arendt’s views too). Their theoretical position is supported by a number of case studies that are offered in support of their theory. Some of these are relatively short, namely on the United States, South Africa, Ireland, and Japan, while separate chapters are dedicated to Hungary, Germany, India, and Israel. Hungary offers two formally legitimate (therefore formally not revolutionary) revolutionary constitutions. First, they moved from communist non-constitutionalism to a constitutional system via the amendments in 1989-1990, and, twenty years later, once again in a formally legitimate way, in accordance with the (poorly drafted) constitution in force. This second time the new Fundamental Law moved away from constitutionalism, creating an illiberal constitutional revolution. In Germany, the making of the Basic Law in 1949 was a one time event that offered a stable identity. The constitutional judiciary considered its task to sustain the results of the revolution. The authors’ critical remarks refer to the lack of flexible development, especially in matters of European integration. As to India, the record of Constituent Assembly remains contested, but the authors seem to endorse the view that the judiciary (relying on the doctrine of unamendability of the basic structure of the Indian Constitution) carried out the promises of a constitutional revolution with respect to equality. Finally, the Israeli model represents substantive constitutional revolution without formal constitution-making. In the Israeli case, the Basic Laws, which can be seen as chapters of a constitution in the making, did not, without radical judicial constitutionalisation, possess the supremacy and entrenchment ordinarily needed for a constitution. In addition, the enactment in the Knesset occurred without a constitution-making mandate.
The country studies rely on the extended analysis of a few judgments in light of the literature. This method is certainly adequate when presenting models of constitutional revolution, but this comes at a price. In the case of Germany, the relevant chapter deals primarily with the Lisbon judgment (the ratification of the Lisbon EU Treaty of 2009, which allegedly transferred powers of the German Parliament, though the Constitutional Court in the end ruled that the constitutional identity was not violated). In the case of India, they presented two judgments where the transformative constitution was based on constitutional identity, while a third case on the unconstitutionality of the sodomy law was discussed separately. However, many of the transformative attempts were unrelated (see OLGA TELLIS & ORS V. BOMBAY MUNICIPAL CORPORATION (1985) with reference to the Preface, international human rights law, right to life, dignity, but not to basic structure), and the basic structure doctrine, as its origins in Kesavananda indicate, can be as conservative of an imagined identity as in Germany.
The authors emphasize that the substantive, longue durée, incremental constitutional revolutions are primarily the result of judicial activity, even activism. While they refer to other constitutional actors in this process, they are primarily interested in the legitimacy (and to a lesser extent efficacy) of such judicial activities. The utmost example is Israel, where their Constitution is presented as a more or less purely judicial creation, and consequently, a matter of continued political contestation and professional criticism. In Israel, similar to Hungary, constitutions were enacted by legislation without the participation of the society. In the case of the 1989-90 Hungarian constitution, the Constitutional Court embarked in a continued liberal judicial revolution, which was described by the first President of the Hungarian Constitutional Court as a rule of law revolution. Arguably, this formalistic approach was intended to limit the revolutionary fervor of the anticommunists. In reality, the defense of a formal concept of the rule of law resulted in a rule that has incapacitated the Court to declare substantively anti-constitutional amendments unconstitutional several times. This was the legal reason, or perhaps a pretext for not applying the concept of unconstitutional constitutional amendment at the time the counter-revolution occurred.
However, according to the authors, it was the lack of public participation between 1989 and 2010 and the elite nature of the Hungarian Constitution that enabled the 2011 counter-revolution. For similar reasons, the Israeli constitutionalisation seems not to have obtained a stable, legally and politically irreversible status. On the other hand, the new Indian constitutional identity is presented as more popularly endorsed. This remains a contested position, given that the secular identity seems to conflict with the deeply religious (and therefore anti-egalitarian) identity of Indian society. It is not out of the question that the Supreme Court will lend support to a tacit constitutional counter-revolution by endorsing anti-constitutional legislation, as it was the case for money bills.
The theoretical and practical implications of the judicial constitutional revolution concept become clear in Chapter 7 (Constitutional Revolution and Constituent Power). The classic theory, as developed by Sieyès for the needs of the French Revolution, claims that the constituent power pertains to the people. One version of the constituent power theory relates this popular power to social-political revolutions, while others claim that the power continues to belong to the people, even after the revolutionary constitution-making. The people are very often only a point of reference. Sociologically, the Constitution is a purely elite construction, as in the case of Germany, arguably with ex post popular endorsement or acquiescence without enthusiasm. Habits and conventions have their own, often supreme, legitimating power, resulting in constitutional resilience, especially where a homogeneous elite supports the idea and principles of the constitution.
The authors offer criticism to the exclusive popular constituent power thesis. The constitutional reality, as demonstrated in the country studies, does not support this one-sided, normatively loaded position. The people remain a chimera and an uncertain theoretical concept. As the facts prove, the judiciary can be the primary source of substantive constitution-making. (It is, perhaps, for a different book, and certainly for a different methodology, to analyze the social and intellectual conditions and dynamics which enable/constrain such judicial developments.)
The authors consider judicial constituent power legitimate (perhaps even in the legal sense, though this book is primarily one of constitutional theory). At the same time, they imply some normative criteria for the validity of such activities, namely faithfulness to constitutional identity understood as a set of principles. Of course, the debate on constituent power will continue, but the authors have the advantage of offering a description that is richer than what is generally taken into consideration in the endless and sterile constituent power/judicial activism debates.
The crucial novelty of the book lies in the application of a perspective of constitutional disharmony: “[D]isharmonies of constitutional politics ensure that a nation’s constitution will over time come to mean quite different things” (p. 21). The empirical reality of constitutions is that these are seldom finished works, even if in some instances there are institutional and intellectual guarantees of a relatively fixed path. Not only do inevitable constitutional-political compromises result in uncertainties, deliberate gaps, and gag rules, but the text itself contains alternatives because the constitution-makers and the society are divided. This is clearly demonstrated in the case of Israel: Jewish and democratic versus simply Jewish. It is not clear to what extent disharmony is a general feature, and it seems that, in some instances, constitutions are written with one group having a clear upper hand. But, there are constitutional systems with fundamental identity tensions (see the original US dilemma regarding slavery), or such tension emerges from time to time (see the Germans and other EU member states facing sudden social heterogeneity because of the EU and because of mass migration). The authors demonstrate that longue durée judicial constitutional revolutions handle or unfold this disharmony. The life of the constitution is not only adaptation within path dependence, but also a creative process dynamically sustaining identity within change.
Constitutional change follows different models and it depends on the changing circumstances of constitutional actors who have different power and self-understanding in different constitutional systems. Based on this non-dogmatic observation, the authors were able to provide a flexible and realistic frame: “Thus, it is disputable that an identity—in this case, the German constitutional identity—once discovered, simply is what it is and must be preserved as such. It develops over time, which is to say, it is not an entity inhabiting a constitutional text, there to be found and maintained as is by those to whom it applies. In adopting the latter position on constitutional identity, specifically in relation to the German predicament, we do not wish to understate the risks associated with the presumption of mutability. … [A]n evolving identity is one that could culminate in revolutionary transformation” (p. 106).
CASES:
OLGA TELLIS & ORS V. BOMBAY MUNICIPAL CORPORATION, 1985 SCR Supl. (2) 51.
© Copyright 2023 by author, András Sajó.
