This wraps up the first round of my occasional postings developing a constitutional typology (see here, and the various posts it links to), by looking at the roles of popular forces in bringing a constitution’s lifecycle to an end.
The most obvious way that popular forces can bring about the end of a constitutional order is through a revolution that overthrows the government, or the state, and brings the constitutional order down at the same time. And there is, of course, a rich literature on these “revolutionary constitutional movements” in social movement literature. But those revolutionary movements are organized, and constitutional history suggests that constitutional orders may be brought to their knees by less structured popular forces. That, for example, is way to read Woody Holton’s Unruly Americans and the Origins of the Constitution (2007), which, while formally the study of the popular role in shaping the new constitutional order of the United States is also a study of how popular actions helped bring the old constitutional order down. I considered the role a variety of popular forces played in ending the constitutional order of Massachusetts Bay in Debating—and Creating—Authority (2001).
Both Holton’s unruly revolutionaries and the citizen-activists in Massachusetts Bay offer another important point about the role of popular forces in ending constitutional orders—the consequence of their actions may exceed their intentions. When the lay actors in Massachusetts Bay set out their claim to the authority to interpret divine will, they did not intend to bring the constitutional order in Massachusetts Bay to an end. Rather, they sought to establish their right to actively participate in the constitutional order that existed. There, an effort to expand the scope of constitutional authority accidentally led to the end of one constitutional order and the creation of a new one. In contrast, when the people of the states that formed the Confederacy seceded from the United States, they may have done so (as South Carolina’s Ordinance of Secession claimed) in the name of maintaining their sense of the true meaning of the US Constitution, but by their actions they intentionally removed themselves from the constitutional order. So we can read their actions as a deliberate effort to destroy an extent constitutional order.
The example of the failed Confederacy raises another important point—popular forces may fail to bring about the end of a constitutional order. The failure may be obvious fairly quickly, as was the case in 1848. But the failure may take longer, the length of the American Civil War, for example, or the length of Britain’s interregnum.
Two other points: First, usually when we think about the end of a constitutional order we think about forces that bring about changes in the constitutional system and the constitutional text. Most often, of course, it is the case that the end of the constitutional order is matched by a new constitutional text. But that need not be the case. One might argue, for example, that the American Civil War brought about an end to the old constitutional order in the United States, or that the Glorious Revolution in England ended one constitutional order in Britain, while recognizing that neither significantly altered the constitutions (written or unwritten) of either country. Arguably, neither of those moments was solely popular, but they point to the possibility that a revolution in a constitutional order can occur without implementation of a new constitutional text or the creation of a new governmental structure.
Second, the examples above are of internal actors bringing a constitutional order to an end. But that need not be the case; transnational movements may play a significant role in setting the stage for constitutional change (as apparently happened in South Africa, for example), and ex-pat communities and external allies may play a significant role in pressing for constitutional change (as was the case in late Qing China).