Vol. 33 No. 02 (February 2023) pp. 16-19FROM PARCHMENT TO PRACTICE: IMPLEMENTING NEW CONSTITUTIONS, by Tom Ginsburg and Aziz Z. Huq (eds.). Cambridge: Cambridge University Press, 2020. pp309. Cloth $99.99. ISBN: 978-1-108-48773-3. Paper $34.99. ISBN 978-1-10873802-6.
Reviewed by Gary Jacobsohn. Department of Government. The University of Texas at Austin. Email: gjacobsohn@austin.utexas.edu.
Constitution-making is an inherently fraught activity, rendered so by the contradictions embedded in the goals of the enterprise. In the early days of independent India, Prime Minister Nehru, who had been a prime mover in the Constituent Assembly that framed his nation’s governing document, voiced a concern that expresses very well the underlying theme of this edited volume. “The whole purpose behind the Constitution which was meant to be a dynamic constitution…is somewhat hampered and hindered by the static element being emphasized a little more than the dynamic element and we have to find out some way of solving it” (Kashyup 1982, pp. xii-xiii). That the object of his concern is now a septuagenarian document, having endured much longer than most constitutions, may suggest that a solution was found. Or, as the essays in this splendid collection also suggest, its success in exceeding the longevity of the typical constitutional experiment may be attributable as much to the fortuitous convergence of local political and legal dynamics than to any systematically imposed solution.
The specific focus of this collection of essays is the first period following the adoption of a new constitution. As its editors, Tom Ginsburg and Aziz Huq note, this stage can be viewed as “the conceptual, temporal, and institutional bridge between the past and future” (p. 1). Critical to reaching the second period and beyond – their data reveals the modal age of constitutional mortality to be one year – is the capacity and willingness of constitutional actors to engage with the tension that is endemic to governing documents no matter their differences in origin or design, namely the contending commitments to transformation and preservation. What follows their introductory chapter is an admirably coherent series of country studies in which the authors address this tension and the diverse ways in which success and failure have resulted from activities undertaken by these actors in the specific constitutional settings that are the subjects of their investigative efforts. If one were to imagine a spectrum with the goals of transformation and preservation on opposite ends, the countries included in this volume would easily fill all the spaces along the continuum. The absence of a concluding chapter is a slight disappointment more than compensated for by the implicit challenge to the reader to reflect upon the endurance prospects that are posed by a country’s spectral positioning.
Most of the cases in this volume underscore the importance of the judiciary in navigating the turbulent waters of constitutional disputation and development. Fittingly, the first country study is of the world’s oldest governing document, and in Sanford Levinson’s account of the American example, we see very clearly that the institutional capacity of courts to provide determinative meaning to the transformation/preservation challenge is both broad and severely limited. Levinson sees only failure in the absence of judicially inspired constitutional adaptation, which in the United States practically means advancing the transformative possibilities of national consolidation over the preservationist bias of state sovereignty. Levinson, however, is mindful of an entrenched reality in normal constitutional politics, namely the textual advantages available to those with power-retaining interests that align with structural features whose settled properties render them largely impervious to even the most enlightened judicial manipulation.
This resistance to court-imposed reformism rests more comfortably and predictably in constitutional settings notable for their authoritarian origins. As Ginsburg explains, the uniquely complicated Chilean case of a constitution with both numerous democratic markings and a dictatorial pedigree can only move so far in a transformational direction before its judicial guardians reveal the appreciable constraints that legal institutions must accept in the service of authoritarian preservation. This unforgiving reality is even more evident in the less ambiguous case of Myanmar, where, in Melissa Crouch’s skillful telling, judicial interpretation may offer some hope for eluding parts of the constitutional designers’ authoritarian aspirations, but a more certain consequence of democratically inspired activities is swift and sometimes brutal military retaliation. “The risks of constitutional change are heightened during the first period, particularly if it is a transformative authoritarian constitution that protects the interests of the former authoritarian regime” (p. 280).
Constitutional change is less hazardous in the absence of a looming specter of despotic assertion. What these studies convincingly demonstrate is that, in settings whose constitutional trajectory has a clear historically generated transformational significance, the courts can play an important, and even dominant, role in achieving both stability and change in the crucial early stage of constitutional development. Doing so, however, requires sensitivity to the broader political context, without which, as Rosalind Dixon and Theunis Roux argue in describing South Africa’s largely successful first decade of transformational implementation, a judiciary “will fail in translating parchment into practice.” Despite several missed opportunities, beginning in 1996, the apex court’s “custodianship of the constitutional project” proved instrumental in putting the post-apartheid regime on a path of legally inspired social change.
Elsewhere, progress along such a path will require major course corrections. Indeed, as the Ecuadorian example suggests, the challenges to meaningful social transformation may be heightened to the degree that the document – in this case the 2008 Constitution – establishes an ambitious transformational agenda, thereby exacerbating the extant tensions that are incorporated in its provisions’ language and that are evident in the interests that can be straightforwardly mobilized in the face of a deeply inscribed constitutional threat to the status quo. Eric Alston’s analysis contains important lessons for constitutional designers who may prudently decide that the formidable project of getting a new constitutional project off the ground should lead them carefully to consider the implementation implications of an overly ambitious and specific textual mandate for societal transformation.
Designers, of course, must conduct their work deeply immersed in the broader historical context of constitutional creation. This could lead them to anticipate a less treacherous path through the first period, with the judiciary assuming the key role in facilitating a transformational program. Thus, in neighboring Colombia, for example, that country’s first period was, as Diego Gonzalez deftly shows, an exemplary instance of the fortuitous convergence of factors that can expedite a successful judicially led achievement of transformative aspirations with minimal obstruction from preservative sources of opposition. A long history of constitutional supremacy and judicial review provided the Colombian Constitutional Court with a measure of legitimacy vital for its impactful role in launching the new 1991 Constitution. But for the ensuing dramatic changes to take hold, the Court was very much reliant on the framers’ astuteness in fashioning a decidedly aspirational document whose principle-oriented provisions offered ample latitude for creative constitutional interpretation.
However successful courts may be in traversing the tensions present within the folds of the texts bequeathed to them, progressive constitutional advancement – in the first period and beyond – is not limited to the disharmonic challenge judges confront in their glorified parchment pages. The broader constitutional order consists of institutions, interest groups, and private power centers that, to varying degrees, embrace commitments that in themselves represent a set of external disharmonies that further complicate the task of resolving the central tension highlighted in this book. This is made manifestly evident in Claudia Flores’ analysis of how the gender issue played out in the first period of the Zimbabwe Constitution. The blatant discrepancy between legal rules and local practices left the entrenched reality of gender inequalities at the mercy of preservationist sentiment, constitutional language to the contrary notwithstanding. Yet, a more optimistic take on the way the gender issue has unfolded in the first period is that, as Flores notes, a constitutionally inspired conversation on the subject has opened, with what possible ultimate transformative effects still to be determined.
Looking beyond a governing document’s formal rules is also the point of emphasis in James Thuo Gathi’s insightful consideration of Kenya’s experience under its 2010 “Madisonian Constitution.” Implementing this constitution in a competitive authoritarian context presented challenges scarcely recognizable if one’s focus was solely on the checks and balances formally engraved in the document. Gathi’s attention to informal sources of influence and power, especially as they are entrenched in networks of patronage and pockets of ethnicity, provides sober perspective on the small-c constraints that limit realization of the grander ambitions of formal large-C liberal constitutionalism. The Constitution is now in its second period, a transition occurring in 2017 following the nullification of election results. And very recent events in that country involving a disputed election might give additional support for the author’s hopeful observation to the effect that the judiciary is “the one bright beacon of successful transformation” (p. 234). As for comparative cases that might fruitfully be illuminated by this discussion of a Madisonian Constitution, the reader might well consider other recent events, such as those occurring in the country that brought forth this constitutional nomenclature.
Finally, I return to Nehru and his frustration in seeing the dynamic element of the constitution being subordinated to its static element. Much of that frustration was directed at the judiciary, but in Madhav Khosla’s brilliant contribution about the Indian case, we come to understand the subtle and far-reaching ways in which that institution can contribute decisively to the establishment of constitutional order. Khosla brings to our attention the salutary effects of doctrinal efforts by Indian judges for the creation and perpetuation of a legal order that is now well beyond the first period of constitutional life, and long past the time when most constitutions succumb to one fatal disease or another. In his account, the Supreme Court has achieved a balance in the central tension of the constitutional predicament, thereby preventing the sort of dangerous escalation that could lead to terminal rupture. The dialogical working out of conflicting principles, notably as it exists in the quite different priorities of the document’s Directive Principles and Fundamental Rights, has succeeded in generating norms and conventions that, while not settling the many contested issues that lie at the intersection of these transformative and preservative aspirations, has made it possible to continue a political conversation that mitigates tension while offering the possibility of policy reconciliation.
This reviewer has long embraced the view that disharmony is endemic to the constitutional condition, that it is the critical variable in understanding the development of any constitutional order. Among its many praiseworthy virtues, FROM PARCHMENT TO PRACTICE: IMPLEMENTING NEW CONSTITUTIONS will be lauded by anyone who shares this perspective.
REFERENCES
Kashyup, Subhash C. 1982. "Parliamentary Debates V." In JAWAHARLAL NEHRU AND THE CONSTITUTION, eds. Subhash C. Kashyap and Jawaharlal Nehru. New Delhi: Metropolitan.
© Copyright 2023 by author, Gary Jacobsohn.
