Constitutional Orders

Thinking about some concepts, and what we (can) do with them

In this entry, I want to think about some conceptual relationships and effects. The concepts I want to work with are modernity, decolonization, and constitutions. On the one hand, there seems to be a clear relationship between constitutions and decolonization, namely, that as decolonization happens,  emerging states draft constitutions as a part of the process of inter-state recognition and legitimation.[i] Furthermore, this process would, according to many accounts, be situated in a context of modernity, or at least one of modernization.

Fair enough. But what if our conceptual tools are less straightforward than this narrative suggests? And what if the effects and consequences of political, economic, social and legal actions taken according to the straightforward interpretation are more fraught, more significant than is perhaps realized? Does this give us a justification for digging a little deeper beneath our surface apprehensions, for rethinking meanings and practices?

Let’s start with modernity. What does this term mean? In the first place, it is an abstraction, which captures a sense of time, space, and culture history. But whose? And under what conditions? Modernity for a long time has had as its inclusive core “Europe,” or “the West,” and cosmopolitan-ness. These are themselves troubling abstractions, but more importantly, they are political (and polemical) arguments with wide scope, the content of which has shaped consciousness and material practices in importantly determinate ways. Race, rationality, progress… these are crucial syncretic elements of modernity, but only particular facets of them are constitutive of modernity.

Which brings us to another of our concepts: constitution, and its conjugates. In the short narrative above, a constitution is a thing, a textual document that emerges from socio-political process (such as a convention, a revolution, or the work of a committee) and establishes the basic structures and processes of government, gestures to the limits of government through the inclusion of protected rights, and creates, in some sense (a sense that is variegated) a charter for a state and, in many cases, a nation. Both the thing and the process, are important in this variety of the telling, marking at once the coming into being of a state and its guide for action.

But what if “constitution” imbricates more than just the state as historical being and agent? This is, in part, one dimension of the notion of “constitutional orders” that we seek to explore on this blog. What if, in other words, “constituting” also captures subjects, and articulations (or, perhaps better, co-articulations) of subject-state relations? Further, what if constituting also carries the implication of implanting qualitative values? Not merely notions of liberty, fairness, justice, but more quotidian, mundane, and less visible values, like propriety, essence, sameness, or the ideal. Constituting, in this sense, leads us to consider symbolic economies: circumstances, processes, conditions in which exchange, substitution, commensurability, and representation become our guides for analysis and thought.

This move, from constitution as a modern thing that creates and charters states (and nations) to constitution as a convergent process of social and symbolic formation that accepts and includes certain forms of being and modes of thinking and rejects or excludes other forms and modes, hits its stride in decolonization as, on the one hand, geopolitical reality, and on the other, precursor to the intellectual shifts represented by, for example, postmodernism, post-structuralism, post-colonialism, and critical race, feminist, and subaltern approaches. The move takes us into the realm of reconsidering the relations of modernity, constitution, and decolonization, away from a linear and progressivist approach to history, becoming (of states and nations), and legitimacy, toward a concern for the production of difference and the role of differentiation (at multiple scales), the intensity and direction of social action, complex temporalities and contingent dynamics, and the philosophical issues of knowledge and being and the nature of social worlds: who is included, who isn’t, and what criteria are used to make determinations.  

The binary of material : symbolic should not be understood as in opposition but as conjugated and reciprocal essences. Decolonization, too, should be understood in these mutual, constitutive terms. It does not mark a temporal process of before (colonized) and after (decolonized); or an ideological project of enlightenment in which the premodern (colonized) is supplanted by the modern or modernizing (decolonized); or a modern political project in which territories/nations move in geopolitical terms from a status of excluded (colonized) to included (decolonized/state). Rather, it marks one aspect of a process that is bound up with modernity, not as its other, but as its self, co-constitutive, and necessarily interpellating subjects in the larger, macroscalar processes of history, politics, sociality, markets. These processes are not simply the determining forces that create the subject or determine personality or constrain action, but are social fields, networks of relations through which ideas, resources, values, currencies, commodities, counterpoints, and alternatives are shared, exchanged, given new local valences, and subsequently participating in the formative processes of material and symbolic economies that underlie modernities, constitutionalisms, and decolonizations.

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[i] This is a general heuristic statement, and the reader should  bear in mind that constitutions are also created in colonized spaces, and that the “direction” of constitutionalization is not a simple center to periphery movement.

Brief "before the semester starts" update

The all-too-soon start of classes has played havoc with posting, but constitutional events in Hungary do call for at least a moment's comments. 

The changes, which are far reaching, include weakening the constitutional court and threats to the independence of the judiciary. For a general overview, see Kim Lane Scheppele's summary, here. There are reports on the recent protests in the Guardian (here and here).  There are also several recent articles on the subject in the New York Times, including this one on the protests and an earlier article from december on opposition to the changes. The Financial Times also has covered the story, there is an article from January 2 on dissidents' reaction to the constitution (by Neil Buckley and Kester Eddy, behind the paywall) and an editorial on the threats to democracy posed by the constitutional reforms that was published on January 4 (also behind the paywall).

There are also some reports about Hungary's constitutional protests on the group blog The European Tribune, see, for example, the lengthy post from earlier this week (with comments) here. (This post also has links to further posts by Kim Lane Scheppele on the subject).

ERD

 

Of constitutions and the diaspora

 

The role of the diaspora in constitutional order has been in the news recently, most immediately in stories out of Kenya, Haiti, Grenada, and Jamaica, where questions of the diaspora’s constitutional power have arisen in two distinct ways.

For Jamaica, Haiti, and Kenya, the issue is whether or not members of the countries’ diaspora should be allowed to vote in general elections or run for office. In Jamaica, where calls to give members of the diaspora some or all of those rights have been contested by other members of the diaspora, the debate has been complicated by Sections 39 and 40 of the nation’s constitution. Those provisions permit citizens of the Commonwealth countries who have lived in Jamaica for twelve months to be appointed to the nation’s Senate or elected to the House of Representatives. The argument is that this provision already dilutes citizenship by politically empowering people with only the most tenuous connections to the country. 

Greece and Sovereignty

The recent announcement from Greece that Prime Minister Papandreou (see here and here) has proposed that the country hold a referendum on the recent deal with the EU is currently being cast as an economic story (but see here, for a report that treats it as a Greek political crisis) But in fact, it ties together a number of story lines and suggests that sovereignty, specifically questions of what it means and where it is located, are the crucial and constitutional problems of the moment.

The proposed referendum rests on a number of distinct, but related, assumptions of constitutionalism and sovereignty:

First the referendum makes the point that proposals to help Greece resolve its financial crisis are, ultimately, questions that implicate political, as well as an economic, issues. They are questions of political economy, not merely questions of the needs of the market or creditors. 

Second the referendum suggests that those political questions are not merely problems that can be resolved through no confidence votes or new elections. They are questions of sovereignty--who has the authority to decide what Greece should (or must) do and bind Greece to a particular course of action. At the most obvious level, this is the problem of the scope of national sovereignty within the EU. Did the various countries of the EU retain sovereignty when they entered the union? If so, how much did they retain? Or, if they did they give up political sovereignty to enter into the union, how much did they relinquish? In the absence of a written EU constitution, these are questions of constitutional order rather than constitutional text, questions of constitutional order that are being determined by events on the ground.

Third, while practice suggests that at present the EU constitutional order assumes that member nations retain the sovereignty to try to resolve their economic problems on their own, in the first instance,  the referendum engages the question of what the EU can do if a member nation fails (or is unable to resolve the problem). Does that failure create a state of exception (or something more fluid and quotidian?) that empowers the EU and/or some of its member countries to put the failing country into a type of economic and political receivership to save the rest of the union? If the answer to that question is yes, does that same principle also obligate the various countries of the EU to take action to save one or more of their members? To reframe this last question, does the state of exception that might strip Greece of sovereignty and autonomy for the good of the rest of the EU also strip Germany or other creditor nations of sovereignty and autonomy, to the extent that it gives them a duty to act to save Greece and the union, regardless of the cost to their own people?

Fourth, the referendum engages the related question:  if there is some sort of state of exception that gives the EU extraordinary power over member nations, do the member nations still have to formally agree to the obligations that the EU has asked them to accept? It certainly seems that is the case. If there is an expectation that the member states will formally assent to whatever role the EU has assigned them, the final question is who has the power to bind each state by giving that consent.

The answer to that last question must, presumably, be found in each member state's constitution (see here, for example). The text of the Greek Constitution, Article I, paragraphs 2-3, provides that "popular sovereignty is the foundation of the government" and "all powers derive from the People and exist for the People and the Nation...." The argument that the Greek people have to ratify the EU plan is, then, an argument that in Greece, at least, sovereign authority ultimately lies in, and must be exercised by, the people of Greece, not the Greek govenment.  

But here, too, there are more questions than answers, since it appears at the moment that that constitutional interpretation is not shared by everyone in Greece, or in the Prime Minister's party. 

Update: For another, critical reaction,  see here.

Further update: For two other responses, see here and here.

ERD

 

 

 

 

OWS as a Constitutional Movement

As a follow up on our earlier post mentioning Occupy Wall Street, I thought I'd consider whether OWS was a constitutional movement and then offer some additional links discussing it.  On Balkinization, Jack Balkin has argued that OWS could become a constitutional movement (though he notes that in contrast to the Tea Party, it has not yet done so). In support of the claim, he points to the objections that OWS have to Citizens United and to the extent to which the "wealthy and powerful have used their wealth and power to buy access to government...."

It's certainly fair to say that OWS has a critical view of the political economy as it has been enabled by the Supreme Court, most obviously in Citizens United. But while that suggests that OWS is a social movement (for another discussion suggesting that OWS is a social movement, see here) I am not sure that is enough to make OWS a constitutional movement. Instead, following my earlier attempt to set out a spectrum of movements from social to constitituional (here) I would characterize their actions to date as a social movement with constitutional aims (mainly relating to the first amendment).

That said, OWS is clearly exercising constitutional powers: most notably by making First Amendment claims to "peaceably assemble" and "petition the Government for redress of grievances." But while OWS has laid claim to those popular constitutional powers, it has not yet attempted to use them to articulate (or press for) significant changes in the constitutional order. Instead, it has mostly concentrated on teaching participants to engage one another and explore direct democracy in local settings. In that respect it is a school for citizens, which is noteworthy, but not (yet) a constitutional actor comparable to the abolitionist or suffrage movements. And to that extent, dit does not strike me that it is a constitutional movement.

There is another reason why I hestitate to characterize it as a constitutional movement. While much of the coverage of OWS has treated it as an indigenous response to problems within the US polity, and suggested that OWS' protest has spread out to the rest of the world, in fact the evidence is as strong (if not stronger) that OWS is a local manifestation of a  larger, global push for a popular engagement in democratic processes. (For a similar argument, see this article.)  If OWS is kin to the movements of the indignados in Spain and Greece is it a constitutional movement? Or is it something different?

That depends on how we understand the processes of transnational constitutionalism.  Constitutional history indicates that transnational constitutional movements can exist, but I think it also teaches us that those movements need to push for local (ie, national) constitutional change to be characterized as constitutional, as opposed to social, movements.  That suggests that a transnational constitutional movement requires constitutional change that meets two conditions:  1) it takes the form of reform, amendment, or (in extreme cases) revolution, and 2) it occurs in a particular constitutional order.

A global constitutional discourse, even one that is articulated in the streets, is not a constitutional movement if it does not meet those two criteria. Some do, the suffrage movement of the late nineteenth and early twentieth century was both a transatlantic constitutional discourse about citizenship and a collection of localized constitutional movements that succeeded in altering the scope and meaning of citizenship in some countries. 

How then would I characterize OWS and the other, similar movements playing out in other parts of the globe? I guess I would say that to the extent that they perceive themselves to be related, at this point they transnational social movements that seek to have constitutional democracies around the world explore and reaffirm their  promises of equality, social justice in the context of a more rebust democratic process.  

For several other links, that discuss OWS from a variety of perspectives, including several that emphasize the conservative aspects of the movement, see here and the following:

Yarrow article cited in Monkey Cage:  http://www.foreignaffairs.com/articles/136401/sidney-tarrow/why-occupy-wall-street-is-not-the-tea-party-of-the-left?page=show

OWS & web 2.0:  http://themonkeycage.org/blog/2011/10/24/occupy-online-facebook-and-the-spread-of-occupy-wall-street/

Occupy, a view from Canada:  http://www.criticallegalthinking.com/?p=4520#more-4520

Occupy as an expression of several traditional or conservative values:  http://balkin.blogspot.com/2011/10/conservatism-of-occupy-wall-street.html

ERD

 

 

 

 

Legitimacy and a Bill of Rights

Over on the UK Constitutional Law Group’s blog, Tom Hickman, a barrister, inquires after the legitimacy of a Bill of Rights. This comes in the context of a currently underway consultation by the Bill of Rights Commission as to whether the UK needs a Bill of Rights, and if so, what that Bill should contain. Hickman finds these to be constraining questions, in need of improvement.

Specifically, he is concerned with the how of the introduction (and implementation) of a Bill of Rights. He suggests that the Human Rights Act 1998, the existing rights document in UK law, lacks legitimacy “precisely because it was brought about by a legal and political elite through the ordinary Parliamentary process.”  That is, Hickman offers a critique of the ideology of Parliamentary supremacy and the concomitant practices of constitution-making that derive from this staple of UK constitutionalism.

Hickman advocates that popular “ownership” in rights measures, and presumably in the constitutional order more generally, needs greater consideration and action, in order to “make good use of the opportunity for uniting, educating and engaging the population in and around our shared constitution.” This is a provocative argument on both fronts: questioning the basis for law, and aligning the populace more closely with law-making processes. The latter seems to me to gesture to fundamental concerns with democratic process and Parliamentarians’ abuses of power that have been reported over the last several years, in addition to the claims regarding (il)legitimacy.

Participation, legitimacy, and ownership, against a model of Parliamentary (or elite) sovereignty and the particular mode of representative politics it embodies. This seems to be a salient set of arguments currently seeing expression in disparate settings around the globe: Egypt, Syria, Iceland, Hungary, and the UK, among others. Various forms of social mobilizations and constitutional orders are coming into new configurations, seeking to foster fundamental change, and coalescing around interesting modes of coalition politics. Establishment responses are quick and reactionary, in general. It will be interesting to see how these coalitions and clashes reshape political landscapes, locally, nationally, and globally.

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Constitutional Doings Roundup

Some recent goings-on in the world of constitutional scholarship:

Constitutional borrowing is an interesting topic that has created a large body of research on models of constitutionalism and the development and operation of constitutional democracy worldwide. Much of this work focuses on the status of the US Constitution as borrowed. The questions whether this is a good thing and whether the US Constitution retains its hegemonic status have recently been asked by David Law and Mila Versteeg. A blogged summary of their work can be found here, and the abstract of their article here.

Occupy Wall Street, and the parallel developments around the country are creating a number of constitutionally significant effects: in addition to the demonstrations themselves, there have been mass arrests and a flurry of class action lawsuits regarding those arrests. The Partnership for Civil Justice Fund is a key organization involved in these actions, and was using Twitter to locate arrestees. On October 7, 2011, the PCJF had its Twitter account suspended. You can read this story here. In addition, the Constitutional Law Prof Blog has a useful entry regarding the Occupy Wall Street protests and the First Amendment.

The UK recently implemented the Tribunals, Courts, and Enforcement Act (2007), which has altered the ways that tribunals and courts relate as institutions. Two notable legal scholars, Mark Elliot at Cambridge University and Robert Thomas at the University of Manchester, offer a useful analysis of the relations and changes wrought here.

An interesting discussion on the Doctrine of Necessity, from Henri de Bracton in 13^th century England to its current employment in Nepal can be found here.

Finally, SCOTUSBlog has reported that the 9^th Circuit Court of Appeals will take up 41%, a “staggering percentage,” of the Supreme Court’s docket this term. The American Bar Association Journal’s reporting of the news can be found here. This percentage is higher than usual, but it seems to me to be expectable, given the territorial remit of the 9^th Circuit. What do you think?

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Medical Data, Breaches of Unsecured Information, and Privacy Implications

Stanford Hospital and Clinics is the latest to report a massive breach of privacy, in which private medical information for 20,000 people was posted online and publicly available for over a year, as reported by the New York Times.

It’s worth thinking about the role of privacy, and privacy law, in terms of civil rights and the protections we can expect in regards to medical data, as well as the layered nature of the legal rules and institutions currently in place to ensure these protections.

The Health Information Technology for Economic and Clinical Health (HITECH) Act (Public Law 111-5, section 13402) was part of 2009’s federal stimulus package. The HITECH Act requires entities covered under HIPAA to report breaches of medical data privacy. “Large breaches” are those which affect over 500 individuals; “small breaches” affect fewer than 500 individuals.  The Office of Civil Rights (OCR) in the US Department of Health and Human Services (HHS) maintains records on reported breaches.

According to OCR, in 2009 more than 2.4 million individuals and in 2010 more than 5.4 million individuals were affected by losses of unsecured protected health information, “as a result of theft, error, or failure to take adequate care of protected health information.” These records reveal the “large” breaches. Since 2009, information on additional smaller breaches has also been recorded and reported to Congress by HHS. This information shows that, cumulatively for 2009 and 2010, there have been over 30,000 of these smaller breaches, affecting over 72,000 individuals.

In the case of the Stanford Hospital and Clinics, the unsecured information was held by an external vendor, a billing contractor named Multi-Specialty Collection Services. As the New York Times reports, the data, in “a detailed spreadsheet” “made its way” from the vendor “to a Web site called Student of Fortune” where it remained online for over a year.

The scope of breaches (and their causes) over a two year period, and the nature of the relationships between protected entities, contract vendors, and individual and the health records illustrate the extent to which our lives are potentially likely to become an open book, with serious consequences. The problem is multidimensional, ranging from data mining and the linkages that can be established between particular bits of data or trails of information, to inferences drawn from and discrimination based on such linkages, to the deflections practiced by government and big business (see, for example, Nothing to Hide, by Daniel Solove, and David Pozen on “mosaic theory”). The implications for our digital selves and our digital reputations are clear.

Privacy protections, in line with concomitant expansions of the security (or surveillance) state, have been in decline since at least the middle of the twentieth century. At the same time, scandals have resulted in an increase in privacy and security rules, enforcement regimes, and limits on use of information. This dialectic resides in a more recent and developing tension resulting from a sort of “critical mass” of government and business surveillance, as well as more active executives that have emerged out of events like September 11 (2001) in the US and July 7 (2005) in the UK.

Health record data losses due to theft, error, or failures of organization policy and security protocols may seem at a glance to be distant from government intrusions, and minor compared with the rhetoric of global terror threats. However, coupled with issues including inadequate vetting of contract relations, corporate misfeasance, and the relatively easily accessible information held by data brokers (such as Acxiom, for example), there seems to me to be obvious implications for larger scale intrusions and violations built up from the mosaic of data bits available in our sociotechnical universes, and the connections that may drawn between them.

 

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More on Web 2.0 and constitutional movements

As a follow up to our earlier posts about Iceland's experiment with web 2.0 in constitution-making, here is an article that traces out the role of social media in the Arab Spring (specifically in Tunisia and Egypt).  An here is a second article that summarizes that first one, and puts it into the larger debate over the role of social media in contentious politics.  For people interested in that issue, another blog (the Monkey Cage) has begun to collect a bibliography of research on social media and protest, here.

ERD

“Riots” and Constitutional Consequences in England

We’ve all heard about, and perhaps seen footage of, the crisis events that took place in London and other English cities during the second week of August. Some call these events “riots” (see, for example, here, here, and here); others call them insurgencies (see, e.g., here, and many writings in the blogosphere). However we represent these events and those involved, they have provoked some serious constitutional consequences.

First, the criminal justice and judicial responses were rapid, unprecedented, and “wholly disproportionate.” Mass arrests resulted in over 2000 individuals taken into custody, and over 800 of these processed through courts sitting through the night in order to clear dockets (see here and here for statistical and demographic data).

Second, local governments, including Manchester City Council and Wandsworth Council, announced evictions from council housing (i.e. housing subsidized by councils) not only of those arrested as looters or rioters, but of their families as well (see here, here, here, and here; as well as here for one mother’s response to the terrible choice to allow her son to be arrested in lieu of eviction). Additionally, Councils, the press, and politicians at all levels have called for social benefits to be stopped in these cases.

Third, the national political response has been a torrid appeal to authoritarian measures in addition to criminal and judicial sanctions. Following the recall of Parliament from summer holiday (with many parliamentarians apparently returning at public expense), Prime Minister David Cameron deployed new powers to the police to remove the face covers of suspected “rioters.” He also authorized police use of rubber bullets, and the placing on “permanent standby” of water cannon, for use against violent disorder, a solution that has never before been used in London. Somewhat less aggressive measures have also been announced, including the shutdown of social network sites during times of “unrest,” and consideration of expanded curfew powers. (For details see, for example, here, here, and here; and for video of Cameron’s statement in Parliament, see here).

Fourth, the role of the press has been untoward to say the least. Many journalists and outlets have been acting as “agents provacateurs,” , ginning up a vengeful response and vilifying protesters, “rioters,” their families, and those who call for a more moderate and thoughtful response. These actions recall the “moral panics” of the 1970s and 1980s (see bibliographic sourses below). The moral panic, phrased as a “broken society” and as “moral decay,” is the baseline for David Cameron’s analysis of the events and the appropriate political-legal response.

This, then, is what English “justice” looks like in the wake of these events, and for many it does not resemble the comely and reliable common law of English identity. A society accustomed to images of bewigged and careful magistrates reasoning through logic, precedent, and context, is now witnessing what may look very like the lynch mob and summary responses. Circumventions of procedure, in the case of the evictions, and the looming likelihood of a new cohort of evictees being forced into homelessness and destitution are causing some to blanch, even in the political establishment. Conflicts between, on the one hand, the (il)legalities of the judicial and governmental responses; and, on the other, the duties of human rights law, are provoking virulent reaction. Human rights laws are, in fact, being ignored at beast, and assailed at worst, with some politicians, including Cameron, already calling for the repeal of the UK Human Rights Act (1998). All of this is being done in the name of “English freedoms” and the affirmation of “core values.” It seems an anti-heroic and regressive response, at least, and one might wish to remark the absence in the substantial majority of press writings, political rhetoric, and talking points of due consideration of the originary event (the shooting by police of an unarmed young man of color) and of the role played by the history and experiences of poverty, marginalization, and exclusion in England its urban centers.

 

Bibliographic sources:

Cohen, Stanley, 2011. Folk Devils and Moral Panics. Routledge. (originally published in 1972).

Hall, Stuart, et al., 1978. Policing the Crisis. Macmillan.

 

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