Constitutional Identity

Review of Politics

Volumn 68, Issue 3, 2006, Pages 361-397

  Jacobsohn, Gary Jeffrey ^a  

^a NONE

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EID: 43249179985     PISSN: 00346705     EISSN: 17486858     Source Type: Journal    
DOI: 10.1017/S0034670506000192     Document Type: Article

References (87)

1. Minerva Mills Ltd. V. Union of India, AIR 1980 SC 1789, 1798.
2. Laurence Tribe, A Constitution We Are Amending: In Defense of a Restrained Judi Role, 97 Harvard Law Rev 433, 440 (1983).
3. The distinctions between generic and specific constitutions will become clearer in subsequent discussion of Edmund Burke's constitutional ideas, as well as in the analysis of the Indian case in section II. I agree, however, with Stanley N. Katz's criterion for affirming the presence of constitutional government. “[G]eneric constitutionalism consists in a process within a society by which a community commits itself to the rule of law, specifies its basic values, and agrees to abide by a legal/institutional structure which guarantees that formal social institutions will respect the agreed-upon values….” Stanley N. Katz, “Constitutionalism in East Central Europe: Some Negative Lessons from the American Experience,” in Vicki C. Jackson and Mark Tushnet, Comparative Constitutional Law (New York: Foundation Press, 1999), 285.
4. This is the underlying logic of constitutional entrenchment. When those who frame a constitution act to prevent future actors from changing certain elements of their handiwork, they are, in effect, establishing an insurance policy in favor of a present identity against an imagined future identity that is deemed unacceptable. As Akeem Bilgrami has pointed out, this logic runs counter to the familiar liberal understanding (exemplified in John Stuart Mill's On Liberty) that seeks to accommodate the future by insuring that all present arrangements are adhered to in a tentative fashion. See Akeel Bilgrami, “Secularism and Relativism,” Boundary 31 (2004): 173.
5. I use the word “commitments” in the sense employed by Jed Rubenfeld, who distinguishes it from “intentions,” the latter term lacking the temporally extended dimension that creates constitutional obligations. “[D]emocracy does not consist ideally of governance by present democratic will, but also, in fundamental part, of adhering to the nation's fundamental, self-given commitments over time.” Jed Rubenfeld, Revolution by Judiciary: The Structure of American Constitutional Law (Cambridge: Harvard University Press, 2005), 112.
6. The Politics of Aristotle, edited and translated by Ernest Barker (New York: Oxford University Press, 1962), 98.
7. Richard Robinson, Aristotle's Politics: Books 3 and 4 (Oxford: Clarendon Press, 1995), 10.
8. Erik H. Erikson, Dimensions of a New Identity (New York: W. W. Norton & Co., 1974), 204.
9. Michel Rosenfeld, “Modern Constitutionalism as Interplay between Identity and Diversity,” in Constitutionalism, Identity, Difference, and Legitimacy, ed. Michel Rosenfeld (Durham: Duke University Press, 1994), 8.
10. Martin Luther King, Jr., “I Have a Dream,” speech delivered in Washington, DC, August 28, 1963.
11. Bruce Ackerman, We the People: Foundations (Cambridge: Harvard University Press, 1991)
12. Bruce Ackerman, We the People: Transformations (Cambridge: Harvard University Press, 1998).
13. Bruce Ackerman, We the People: Transformations, 12.
14. John E. Finn, “Transformation or Transmogrification? Ackerman, Hobbes (as in Calvin and Hobbes), and the Puzzle of Changing Constitutional Identity,” Constitutional Political Economy 10 (1999): 355–365.
15. Abraham Lincoln, “First Inaugural Address,” in American Constitutional Law: Essays, Cases, and Comparative Notes, ed. Donald P. Kommers, John E. Finn, and Gary J. Jacobsohn (Lanham, MD: Rowman & Littlefield, 2004), 1050.
16. Jeffrey Tulis has criticized Ackerman for not “distinguishing] amendment from revolution.” “Amendment presupposes a constitution whose identity persists over time. Revolution presupposes the disjunction of identities, the possibility of marking a change in fundamental political attributes that make a new polity truly new.” Jeffrey K. Tulis, Review of Bruce Ackerman, “We the People: Foundations,” The Review of Politics 55 (1993): 540, 542.
17. Walter F. Murphy, “Merlin's Memory: The Past and Future Imperfect of the Once and Future Polity,” in Responding to Imperfection: The Theory and Practice of Constitutional Amendment, ed. Sanford Levinson (Princeton: Princeton University Press, 1995), 177.
18. See, for example, Walter Dellinger, “The Legitimacy of Constitutional Change: Rethinking the Amendment Process,” Harvard Law Review 97 (1983): 386, 387. For the Supreme Court's unsympathetic view of the idea of an unconstitutional amendment, see National Prohibition Cases, 253 U. S. 350 (1920) and Leser et al. v. Garnett et al, 258 U. S. 130 (1922).
19. Along these lines and in answer to the question, “What makes a constitution constitutional?” the constitutional theorist Frederick Schauer avers, “Nothing, nor does or can anything make a constitution unconstitutional.” Frederick Schauer, “Amending the Presuppositions of a Constitution,” in Responding to Imperfection, 145.
20. Atkins v. Virginia, 536 US 304 (2002), at 347.
21. Sarah Harding, “Comparative Reasoning and Judicial Review,” The Yale Journal of International Law 28 (2003): 410, 462.
22. Kwame Anthony Appiah, The Ethics of Identity (Princeton: Princeton University Press, 2005), 17.
23. As William Harris has argued, “A constitutional order both creates the larger public identity that is to be recognized and constructs the conditions by which those who have their political life through it come to realize its preexistence as something they are established as identifiable entities to have made.” William Harris, The Interpretable Constitution (Baltimore: The Johns Hopkins University Press, 1993), 177.
24. Within the philosophical literature, this is a contestable point. In their historical overview of Western theorizing about personal identity, Raymond Martin and John Barresi distinguish between an intrinsic relations view and an extrinsic relations view. In the first, or Lockean, perspective, “what determines whether a person at one time and one at another are the same person is how the two are physically and/or psychologically related to each other.” In the more recent second account, “What determines whether a person at one time and one at another are the same person is not just how the two are physically and/or psychologically related to each other, but how they are related to everything else - especially everybody else.” Raymond Martin and John Barresi., eds., Personal Identity (Oxford: Blackwell Publishing, 2003), 1.
25. Quoted in The Cambridge History of Seventeenth-Century Philosophy, eds. Daniel Garber and Michael Ayers, vol. 1 (Cambridge: Cambridge University Press, 1998), 253.
26. James Madison, “Federalist # 49,” in The Federalist Papers, ed. Clinton Rossiter (New York: Mentor, 1961), 314.
27. Garrett Barden, “Discovering a Constitution,” in Ireland's Evolving Constitution 1937-1997, eds. Tim Murphy and Patrick Twomey (London: Hart Publishing, 1998), 3.
28. See in particular, Francis P. Canavan, The Political Reason of Edmund Burke (Durham: Duke University Press, 1960)
29. Gerald W. Chapman, Edmund Burke and the Practical Imagination (Cambridge: Harvard University Press, 1967)
30. Michael Freedman, Edmund Burke and the Critique of Political Radicalism (Chicago: The University of Chicago Press, 1980).
31. Edmund Burke, “Speech On a Motion made in the House of Commons, the 7th of May 1782, for a Committee to inquire into the state of the Representation of the Commons in Parliament,” in On Empire, Liberty, and Reform, ed. David Bromwich (New Haven: Yale University Press, 2000), 274.
32. Works of Thomas Reid, vol. 2 (Charlestown: Samuel Etheridge, 1814), 339.
33. Chapman, Edmund Burke, 90.
34. Laurence Tribe, “Ways Not to Think about Plastic Trees: New Foundations for Environmental Law,” Yale Law Journal 83 (1974): 1315, 1326–1327.
35. Canavan, The Political Reason of Edmund Burke, 134.
36. Burke, “Speech on a Motion…,” 274.
37. Barden, “Discovering a Constitution,” 6 – 7. Surprisingly, Tom Paine, the unBurke, expressed similar sentiments. “A constitution is a thing antecedent to a government.” Quoted in Charles McIlwain, Constitutionalism: Ancient and Modern (Ithaca: Cornell University Press, 1966), 2.
38. I have addressed this issue elsewhere in “An Unconstitutional Constitution? A Comparative Perspective,” in ICON-International Journal of Constitutional Law 4 (2006).
39. See also, Frederick Whelan, Edmund Burke and India: Political Morality and Empire (Pittsburgh: University of Pittsburgh Press, 1996) for an excellent discussion of Burke's attempt to reconcile the universal and the particular.
40. Quoted in Whelan, Edmund Burke and India, 281.
41. Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964), 44.
42. Edmund Burke, “Letter to the Sheriffs of Bristol,” in The Works of Edmund Burke, vol. 2 (Boston: C. C. Little & J. Brown, 1839), 119.
43. What Anthony D. Smith has written in regard to national identity applies as well to constitutional identity. “[T]he role of ‘invention’ and ‘construction’ in the formation of national identity varies considerably depending in part on the preexisting local ethnic configuration.” Anthony Smith, National Identity (Reno: University of Nevada Press, 1991), 101.
44. This history has been described in many works. See in particular, A. Lakshminath, Basic Structure and Constitutional Amendments: Limitations and Justiciability (New Delhi: Deep & Deep Publications, 2002)
45. Paras Diwan and Peeyushi Diwan, Amending Powers and Constitutional Amendment, 2nd ed. (New Delhi: Deep & Deep Publications, 1997). I have discussed the major cases in “An Unconstitutional Constitution? A Comparative Perspective.”
46. The two important cases are Southwest Case, 1 BverfGE 14 (1951)
47. Privacy of Communications Case (Klass Case), 30 Bverf GE 1 (1970).
48. Kesavananda Bharati v. State of Kerala, 1973 SC 1461 (1973), 1624.
49. The Encyclopedia of Philosophy, s.v. “personal identity.”
50. The Works of Thomas Reid, vol. 2, 344.
51. The Prime Minister's self-interest in all of this was even more obvious than the Court's, as seen in Indira Gandhi v. Raj Narain, AIR SC 2299 (1975), which concerned several amendments, including one that prevented any judicial inquiry into her own election. A high court had upheld criminal charges against her for the crime of electoral fraud, which confronted her with the distinct possibility of removal from office. The Court spared her that ignominy, but invalidated the amendment as a violation of a fundamental attribute of basic structure—the rule of law.
52. Edmund Burke, “Speech in Opening the Impeachment of Warren Hastings, Esq.,” in On Empire, Liberty, and Reform, ed. David Bromwich (New Haven: Yale University Press, 2000), 383.
53. “We have accepted [secularism] not only because it is our historical legacy and a need of our national unity and integrity but also as a creed of universal brotherhood and humanism. It is our cardinal faith.” S. R. Bommai v. Union of India, 3 SC 1 (1994), 148.
54. Gary Jeffrey Jacobsohn, The Wheel of Law: India's Secularism in Comparative Constitutional Context (Princeton: Princeton University Press, 2003).
55. As H. Patrick Glenn has observed, “Opposition to a tradition may be … conducted within the tradition itself, using both its language and its resources (the struggle from within).” Glenn, Legal Traditions of the World, 17.
56. Jawaharlal Nehru, The Discovery of India (Oxford: Oxford University Press, 1997), 515.
57. This position often has been espoused by Arun Shourie, perhaps the leading ideologue of the Hindu right, who insists, in explicit reference to American church/state separatism, that the state must take no formal cognizance of religion. See Arun Shourie, A Secular Agenda (New Delhi: Harper Collins, 1997). As I have argued elsewhere (The Wheel of Law: India's Secularism in Comparative Constitutional Context), in the Indian context, this view has the effect of advancing the cultural /religious beliefs and practices of the majority, which, of course, in India is represented overwhelmingly by its Hindu population.
58. Rajeev Bhargava, “What is Secularism For?” In Secularism and its Critics, ed. Rajeev Bhargava (New Delhi: Oxford University Press, 1998), 515.
59. These documents addressed in particular the rights of minorities to their own culture and religion. But the prescriptive constitution is not inscribed only in official documents. A constitutional identity expresses as well important—and continuous—developments in the private sphere that are integral to the dialogical process of identity formation. In India this includes the very long tradition of reform movements within the various Hindu communities that helped shape the constitution's commitment to socioeconomic reconstruction. See in this regard, Charles H. Heimsath, Indian Nationalism and Hindu Social Reform (Princeton: Princeton University Press, 1964).
60. M. N. Venkatachaliah, “There are Some Things of Eternal Verity,” Interview in Frontline, v. 17, February 19, 2000.
61. Rubenfeld, Revolution by Judiciary, 9.
62. If, in other words, “the fixed form of a constitution whose merits are confirmed by the solid test of long experience and an increasing public strength and national prosperity” no longer accurately describes the situation. Edmund Burke, Reflections on the Revolution in France (Indianapolis: The Bobbs-Merrill Company, Inc., 1955), 66.
63. Section 2 of Article 44 in the original constitution (deleted in 1972) also recognized “the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.” Section 3 (deleted at the same time) went on to recognize other denominations, including, uniquely, “the Jewish congregations.” It should be noted that the section 2 language was not as emphatic as some of the Catholic advisors to Eamon de Valera had preferred. For example, de Valera rejected the recommendation of Edward Cahill, the Jesuit priest, that the constitution proclaim, “The Holy Roman Catholic Church… occupies in the social life and organization of the Irish nation a unique and preponderant position, which is recognized as a fact by the Constitution and shall be duly recognized by the state.” Quoted in Sean Faughnan, “The Jesuits and the Drafting of the Irish Constitution of 1937,” Irish Historical Studies 26 (1988): 94.
64. I have examined this controversy in Gary Jeffrey Jacobsohn, After the Revolution, 34 Israel Law Review, 139 (2000).
65. Nevertheless, in the first few decades under the 1937 constitution the state proved itself unwilling or unable to make policy opposed to the Catholic Church's wishes. As Basil Chubb has suggested, this record could qualify as “theocratic” by some definitions. Basil Chubb, The Politics of the Irish Constitution (Dublin: Institute of Public Administration, 1991), 48.
66. In saying this, I do not mean to overlook the obvious break with British colonial ties signified by the 1937 charter. For Ireland this was, indeed, a new departure, and so a complete account of constitutional identity must include the triumph of republicanism. For a different view of Irish constitutional identity that views the constitution as a text similar to the contradictory texts of literary modernism (for example, James Joyce's Finnegans Wake), see Patrick Hanafin, Constituting Identity: Political Identity Formation and the Constitution in Post-Independence Ireland (Aldershot, England: Ashgate Publishing Company, 2001).
67. The comment of a Catholic theologian at the time of the adoption of the Constitution, as quoted in Sean Faughnan, “The Jesuits and the Drafting of the Irish Constitution of 1937,” 97.
68. The distinction between preservative constitutions and transformative constitutions has been made before. See, for example, Cass R. Sunstein, The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever (New York: Basic Books, 2004), 216–217. Sunstein's prime example of the latter is South Africa.
69. Gerard Whyte, “Religion and the Irish Constitution,” John Marshall Law Review 30 (1997): 725, 725.
70. Ryan v. Attorney General (1965) IR 294, 308.
71. As an Irish justice has written, “[T]he political philosophy of our Constitution owes infinitely more to Thomas Aquinas than Thomas Paine.” Director of Public Prosecutions v. Best, 2 IR 17, 65 (2000).
72. The most dramatic illustration of the threat is the abolition of the constitutional ban on divorce in 1995.
73. Linda Hogan, “Interpreting the Divorce Debates: Church and State in Transition,” in Religion and Politics in Ireland at the Turn of the Millennium, eds. James P. Mackey and Enda McDonagh (Dublin: The Columba Press, 2003), 107.
74. Richard F. Humphreys, Constitutional Interpretation, 15 Dublin University Law Journal 59, 69 (1993). Another variant of this kind of constitutional transvaluation can occasionally be observed in Irish Supreme Court opinions. In a case arising under Article 41, one of the justices (Hardiman) noted that the presumption in favor of parental authority was a strongly held view of Jeremy Bentham. “I would endorse this as a description of the Irish constitutional dispensation, even if any reflection of the views of Jeremy Bentham is coincidental. I do not regard the approach to the issue in the present case mandated by Articles 41 and 42 of the Constitution as reflecting uniquely any confessional view.” North Western Health Board v. W. (H.) IESC 70 (2001), http://www.bailii.org/ie/cases/IESC/2001/ 70.html, at 74. This was a response to another justice's observation that Article 41.1 was the provision in the constitution that came closest to accepting that there is a natural law in the theological sense.
75. Richard F. Humphreys, Interpreting Natural Rights, 28–30 Irish Jurist 221, 227-28 (1993-1995).
76. See, for example, The Attorney General (Society for the Protection of Unborn Children (Ireland) Ltd v. Open Door Counselling Ltd, IR 593 (1988)
77. The Society for the Protection of Unborn Children (Ireland) Ltd v. Grogan, IR 753 (1989).
78. “[T]here is no possibility whatsoever of the Community legislature (or indeed the Court of Justice in Luxembourg) acting to legalise abortion itself in Ireland. The question of whether abortion should be legal or otherwise in a given Member State is a moral value judgment outside the scope of Community law and within the sphere of sovereign decision-making by Member States.” Irish Times, March 2, 1992.
79. On this point, see Ruth Fletcher, “‘Pro-Life’ Absolutes, Feminist Challenges: The Fundamentalist Narrative of Irish Abortion Law 1986-1992,” 23, who casts it somewhat differently than I do here.
80. In re Article 26 of the Constitution &In Re Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill, 1 I.R. 1 (1995).
81. I have discussed this case in connection with the practice of constitutional borrowing in Gary Jeffrey Jacobsohn, “The Permeability of Constitutional Borders,” 1806–1812.
82. A brief submitted by “the counsel for the unborn” had argued that “the natural law is the foundation upon which the Constitution was built and ranks superior to the Constitution.” The judicial response was succinct and direct: “The Court does not accept this argument.” Abortion Information Case, at 38.
83. Gerard Hogan and Gerry Whyte, The Irish Constitution, 1513.
84. McGee v. Attorney General, IR 284 (1974), 318.
85. Rubenfeld, Revolution by Judiciary, 93.
86. “Commitments differ from mere intentions. Commitments create obligations. Mere intentions do not. To commit oneself is to engage in a special normative operation that goes beyond intending, through which one imposes obligations on oneself over time.” Rubenfeld, Revolution by Judiciary, 99.
87. Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), 215.