Vol. 34 No. 04 (July 2024) pp. 36-40THE STORY OF CONSTITUTIONS: DISCOVERING THE WE IN US, by Wim Voermans. Cambridge University Press, 2023. pp. 388. Cloth $90.00. ISBN: 9781009385046. Paper $29.99. ISBN: 9781009385084.
Reviewed by: Mark Rush. Department of Politics. Washington and Lee University. Email: rushm@wlu.edu.
The Story Of Constitutions is a series of reflections—meditations, perhaps—on why there are so many constitutions and why they seem to permeate every aspect of human history and civilization. This is a thoughtful work that will leave the reader pondering—frequently—over Voermans’ observations as he moves from and through sociology, anthropology, economics, and politics to offer observations about what makes constitutionalism so pervasive and what leads to constitutional success or demise.
He begins and ends with an acknowledgment that his observations are based in part on some obvious tensions. Humans began as nomadic, isolated beings. Over time, they settled, engaged in agriculture and urbanization, and laid the groundwork for the development of mass societies. In so doing they made it more difficult to foster and propagate the one, key element of any society—trust (p. 256). Fortunately, as he notes, communication technology has advanced in harmony with the growth of population (p. 343). Accordingly, humans have managed to manufacture and rearticulate new notions of trust that make it possible to develop constitutional norms that bind societies together despite their size and the corresponding anonymity that such scale imposes on interpersonal relationships (pp. 342-43).
In the introduction, Voermans sets forth a broad assessment of human nature and the evolution from nomadic to agrarian to urban society to comment on the social aspect of human nature and the extent to which the development of constitutions is a natural by-product of this. As humans began to settle and the size of human society grew from the family to the tribe to the nation, scale, complexity, and efficiency required the establishment of trust-based rules: “Constitutions largely consist of clever mixes of elements that facilitate the two pillars of social cooperation: trust and recognition” (p. 25). This led to the creation of “abstract institutions such as law” that “decrease uncertainty, anxiety and distrust—all of which stand in the way of large-scale human cooperation,” particularly with regard to commercial activity (p. 26). Hence, the book embarks on a voyage to explain how societies establish a collective, cooperative, shared identity that enables them to organize such abstract, trust-based rules.
A question that arises from the introduction and pervades the book concerns the genesis of the power to promulgate and empower those “abstract institutions” and enable them to generate mechanisms for enforcing the common rules. In part I (“Constitutional Diffusion”), he elaborates on how the need for trust and recognition, coupled with societal growth, requires a “higher degree of political organization” that “brings internal and external (competitive) advantages: the new fiduciary institutions increase group cohesion” (p. 66). An underlying theme of this discussion is the innately social nature of human beings and the extent to which this dictates the desire for collective security that comes with the establishment of enforceable, fair, predictable rules.
Yet, the thrust of this part of the book conflicts somewhat with the complexities of the discussion in Part II (“The History of the Constitution”). On the one hand, the desire for such rules calls for a centralization of power. On the other, the growth in size and complexity of societies results inevitably in a natural tension between the centripetal desire for a uniform central power and the centrifugal need for local diversity. With local diversity comes, as well, the unequal allocation and attainment of private power. This inequality, in turn, re-generates a desire for centralization and predictability that frees “ordinary people” from “the worst of feudal arbitrariness and static, ossified [social] relationships” (p. 113).
Accordingly, as societies and constitutions evolve, a tension endures between the centripetal, social aspect of human nature that looks to generate a collective sense of who the “we” is that constitutes a society and the equal, but opposite centrifugal force that promotes individualism, freedom from any sort of normative constraints, and, inevitably, inequality of private power. Humans, he says, “are social beings thanks to our neurobiological predisposition and evolutionary development” (p. 126). But, as a result of the Enlightenment, “philosophers assumed the polar opposite. Man is by nature an autonomous individual” (p. 126).
Regardless of where one looks throughout Voermans’ narrative, this tension endures. Throughout the Roman and medieval periods, law was a balance of centralizing norms (generated by the need for clear commercial relations) and local customs. The Magna Carta was a move to decentralize power from a monarch to powerful private individuals. The Enlightenment was an additional step in this decentralizing direction. Yet, with this decentralization and privatization of power came a radically different vision of the “we” that inhered in the ancien regime (pp. 137-38). As Voermans works through what he describes as eight generations of constitutions culminating in the wave of constitution-making that followed the fall of the Berlin Wall, this tension between centralization and individualism remains clear. As he summarizes (pp. 198-99), there are broadly three models of constitutions—the theistic, the socialist-communist, and the liberal democratic—that balance the tension between the center and periphery differently.
Another key question pervades his narrative: what enables/empowers some governments to be able to control the private power that exercises such centrifugal force while others cannot? He addresses this (pp. 165 ff.) when he discusses corporatism and the development of representative democracy in the 20th century. No doubt, the deconcentration of political power and the generation of bills of rights has been a positive development in the growth of the notion of free markets of ideas and politics. This is yet another manifestation of the impact of growing social complexity. Yet, his descriptions of modern society closely echo his descriptions of Roman and medieval societies where, in response to the diffusion (and inevitable inequality) of private political power, “the people” respond by demanding predictability and consistency to protect them, not from government, but from private power.
In this respect, there is nothing new under the sun. Contemporary elite critics of “populism” would do well to ponder Voermans’ observations. His repeated assertions that contemporary scholars must shed their myopia and appreciate that constitutional forms have evolved over time (and, as a result, took on forms that are unrecognizable to modern eyes), offer a lesson for contemporary assessments of democratic backsliding, illiberal democracy, etc. What contemporary critics dismiss as “populist” is, per Voermans’ description, simply the manifestation of that age-old constitutional tension between the center and periphery. When the pendulum swings too far towards decentralization and moves back towards centralization of power, society seems to be moving in a “populist” direction.
The tension is rendered more complex due to the impact of constitutionally exogenous variables such as the accumulation of wealth, economic inequality, demographics, and, most recently, technological change. Thus, the “democratic-corporatist” constitutions of the 20th century interwar period served as middle ways between a “liberal-capitalist and socialist-communist system of government and market organization” (p. 165). The enduring tension between centralized state power and individualized private or corporate power evolved in the 20th century into a hybrid in which the same powerful private actors about whom the people complained now play a joint role in governance.
Voermans asserts that contemporary constitutionalism’s historical myopia blinds us to the possibility that other sorts of constitutional forms have existed throughout history. He dismisses the notion that liberal democracy is the pinnacle of human development as “facile” (p. 185). Yet, he acknowledges that an increasing number of countries wish to be liberal democracies (p. 185). Nonetheless, that liberalism would seem to provide cold comfort if the privatization of power that it generates simply results in a new version of feudalism in which powerful, unaccountable private actors can assert governmental power essentially because the government is not powerful enough to control them. As Zakaria says, “democracy without constitutional liberalism is inadequate” (p. 184). But, if that liberalism results in an undemocratic, unequal distribution of private power that can compete with governmental authority, then the drive towards a recentralization of power across the globe that Zakaria laments would seem to embody yet another step in the evolution of constitutionalism that myopic constitutional scholars should not dismiss as “backsliding.”
The successful management of this tension is tied in no small part to constitutional durability. Voermans notes that there is “a significant positive correlation between the age of a constitution on the one hand and the per capita gross national product, democracy, and political stability on the other” (p. 253). Yet, there remains a paradox in his discussion. Longevity is a function of popular acceptance. Popular acceptance of and support for a constitution requires the maintenance and fostering of that sense of “we” that binds a people. But, in an era in which the growth and expansion of liberal democracy results in the promotion of individual rights and recognition, the resulting atomization of society makes the identification and maintenance of that “we” an increasingly challenging task.
Accordingly, it seems that the trajectory of constitutional development moves cyclically toward atomization, deconcentration, and privatization of power on the one hand and towards centralization on the other. This creates a peculiar tension. To the extent that power is privatized, it is unaccountable. Unless the government retains power relative to that of the private sector, it will have less control over the society and less capacity to husband and maintain that “we” which comprises the common good. To the extent that this is the case, private actors will be able to exercise correspondingly disproportionate power over the constitution and the government. In a haunting passage, he notes that:
As long as a group, even a minority, succeeds in imposing its will and conviction on a majority whether through coercion, repression, or even manipulation a constitution [sic], even an unjust one can endure…. It is certainly true that a constitutional order based on a tiny minority of adherents is not sustainable in the long run. But the world has and has had many instances of constitutions which have not enjoyed the support of a broad majority of the population. This does not always result in immediate repercussions…. Ultimately a constitution ceases to be a real constitution when over an extended period of time it no longer binds as law and/or people are no longer convinced of the value of compliance (pp. 245-46).So, while constitutions “create a world” (p. 244), the creation of that world requires compliance and acceptance of common values. Those values—and the structures employed to preserve and promote them—vary over time. Therefore, “looking at early instances [of constitutionalism] through the lens of contemporary concepts clouds our vision. Projecting our modern concept of law onto the past adjusts the realities of another era to our contemporary ideas” (p. 244). Insofar as scholars must, therefore, overcome the myopia of their own worldview when looking at the past, it stands to reason that they must do so when looking toward the future.
In this regard, then, Voermans’ work gives the reader reason to step back from contemporary debates about democratic backsliding in order to consider the possibility that what is deemed “backsliding” may, in fact, be evolution towards a constitutionalism that is post-liberal (as opposed to illiberal) and does not necessarily follow a linear, liberal path. What critics call “authoritarian” might simply be another turn in a trajectory of constitutional development that follows a nonlinear path and which, over time, will appear to be more or less liberal or authoritarian only when cast in terms of prior phases of development that appear to be relatively centralized or decentralized, respectively.
Accordingly, to end the book with a paean to Pericles’ funeral oration leaves the reader in a quandary. On the one hand, there is no doubting the power of a vision of a people united by a common respect for Athenian law which, by virtue of its acceptance, strengthened the Athenians in the face of devastating war losses. On the other hand, Athenian society had its own underside populated by a slave class that was not included in the “we”.
In the end, this is an important work that is as much a “thick description” of constitutionalism (akin to Clifford Geertz’s thick descriptions of Balinese cockfights, etc.) as it is an analysis of legal architecture. What to take away is not so clear. But, reading Voermans’ work will certainly provide a thoughtful context for assessing the success or failure of any new constitutional movements. In this respect, The Story Of Constitutions would serve as a wonderful background text for assessing the trials and tribulations of Chile’s constitutional odyssey. It is a thoughtful look back to the past and into the future of constitutionalism.
© Copyright 2024 by author, Mark Rush.
