Misleading metaphors in comparative constitutionalism: Moments and enthusiasm

International Journal of Constitutional Law

Volumn 3, Issue 2-3, 2005, Pages 262-268

  Tushnet, Mark ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33746396696     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/moi019     Document Type: Article

References (27)

1. And, in a different context and for different but related purposes, Jürgen Habermas.
2. Ackerman applied the idea of constitutional moments to non-U.S. contexts. See generally Bruce Ackerman, The Future of Liberal Revolution (Yale Univ. Press 1992) (using the idea of constitutional moments to discuss developments in Central and East Europe in the early 1990s).
3. It may be appropriate to note here that there is a more standard account available for two of the three transformations Ackerman identifies. The shift in constitutional orders that was embodied in the 1789 Constitution resulted from a victory by arms in a revolutionary struggle. The transformation after the U.S. Civil War might also be described as a traditional transformation accompanying revolutionary military victory. And, finally, many scholars of U.S. constitutional law (though not, I should add, me) are skeptical about Ackerman's claim that there was a constitutional transformation during the New Deal.
4. Ackerman called this the intertemporal difficulty, to distinguish it from the countermajoritarian difficulty that had (mistakenly, according to Ackerman) been the focus of constitutional theorizing at least since Alexander Bickel introduced the term.
5. I do not mean to minimize the difficulties of providing an account of why, for example, a person who disagrees with an enacted statute is nonetheless bound to obey it. All I mean to suggest is that such an account, whatever it is, will be enough to explain the binding force of constitutional decisions as well (with, I suspect, modifications that would not require the "constitutional moments" apparatus).
6. For a brief discussion, see Mark Tushnet, Taking the Constitution Away from the Courts 50-53, 181-182 (Princeton Univ. Press 1999).
7. For example, Habermas has argued that Europe's experience requires that constitutional patriotism - a national identity centered around liberal constitutionalism - replace nationality as the way Europe's peoples are constituted. In addition, as Professor Sajó observes, discussions of whether Europe has a demos raise issues related to this component of Ackerman's argument.
8. That is true even of liberal constitutions that constitute a nation's identity.
9. As Professor Sajó puts it, with a caution about the long run, "the presence of an enthusiastic constitutional debate is unnecessary in forging lasting constitutional arrangements, although an apparent lack of constitutional commitment and passion on the part of the citizenry might become a problem should tyrannical or corrupt elites attempt to govern" (Sajó, p. 10). For more on the long run, see text accompanying note 17 below.
10. András Sajó, Constitution without the constitutional moment: A view from the new member states, 3 Int'l J. Con. L. (I·CON) 246 (2005).
11. Again, this is not to say that procedural regularity is all there is to making law binding, but only that the problem is no different for constitutions than it is for ordinary laws. And, the qualification "short-term" is necessary because of the inter-temporal difficulty that arises as time passes.
12. Grazyna Skapska, Paradigm Lost? The Constitutional Process in Poland and the Hope of a "Grass Roots Constitutionalism", in The Rule of Law After Communism: Problems and Prospects in East-Central Europe 149 (Martin Krygier & Adam Czarnota eds, Ashgate., 1999).
13. Sajó, supra note 10, at 257.
14. As Professor Sajó puts it, "performance may offer new sources of legitimacy, if it is backed by efficient service delivery by the policy networks" (Sajó, supra note 10, at 256).
15. Sajó, supra note 10, at 256 n.20.
16. In this context, I suppose that the canonical text would be The Invention of Tradition (Eric Hobsbawm & Terence Ranger eds., Cambridge Univ. Press 1983).
17. Sajó, supra note 10, at 249.
18. I should note - not inconsistent with Professor Sajó's presentation - that such elites can hijack the government even while it is delivering the goods.
19. Mark Tushnet, The New Constitutional Order 3-4 (Princeton Univ. Press 2003).
20. See Annapolis Convention, in 1 Dict. Am. Hist. 187 (Stanley I. Kutler ed., 2002). I find it interesting that the four-volume Encyclopedia of the American Constitution (Leonard Levy et al. eds., Macmillan 1986), does not contain an entry on the Annapolis convention, although its supplement, published six years later, does.
21. In this light one might consider that we will discover in later years whether the convention on the constitution of Europe should be analogized to the Philadelphia or the Annapolis convention.
22. This echoes observations made shortly after the fall of communism in East and Central Europe. See, e.g., Stephen Holmes & Cass R. Sunstein, The Politics of Constitutional Revision in Eastern Europe, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment 275 (Sanford Levinson ed., Princeton Univ. Press 1995) (arguing that the new constitutions in East and Central Europe should be relatively easy to amend so that the citizenry could gain experience in making political choices that have real effects on public policy without being thwarted by constitutionalized limits on policy).
23. Ackerman refers to "legitimization through a deepening institutional dialogue between political elites and ordinary citizens." Bruce Ackerman, We the People: Transformations 85 (Harvard Univ. Press 1998) (emphasis in original).
24. A matter about which I have no views.
25. See e.g. Robert S. Summers, Instrumentalism and American Legal Theory (Cornell Univ. Press 1982). The strongest legal realists contend that only pragmatic instrumentalism offers a coherent account of the rule of law, but I need not adopt that position here to make the points I want to make.
26. Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625 (1984).
27. Although I am not at all deeply familiar with European Community law and legal processes, I suspect that comitology might have been a way of achieving acoustic separation. And yet, it seems to me, the attacks on comitology for its lack of transparency indicate why, if comitology ever could have achieved such separation, it may not be able to do so today.