Whose Constitution? Constitutional Self‐Determination and Generational Change

• Author: Jörg Tremmel
• DOI: http://doi.org/10.1111/raju.12233
• Published date: 01 March 2019
• Date: 01 March 2019

© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

Ratio Juris. Vol. 32 No. 1 Mar ch 2019 (49–75)

Whose Constitution?

Constitutional Self-Determination

and Generational Change

JÖRG TR EMMEL

Abstract. Constit utions enshrine the f undamental values of a people and they

build a framework for a state’s public policy. With regard to generational change,

their endurance gives rise to t wo interlinked concerns: the sovereignty concern

and the forgone welfare concern. If const itutions are intergenerational contracts,

how (in)flexible should they be? This article discusses perpetua l constitutions,

sunset constitut ions, constitutional reform comm issions, and constitutional

conventions, both historically and analytically. It arrives at the conclusion that

very rigid constitutions are incompatible with the principle of intergenerational

justice. Recurring constitutional reform commissions at fixed intervals would

give each generation of citizens a say without lean ing too much on the side of

flexibility.

1. Introduction

From the perspective of the reproduction of politica l orders, constitutions are an

interesting case. Arg uably, they are the most important intergenerational contract

in modern society. This rai ses the question of how binding this contract should be:

flexible or fixed?

A “constitution”1 is usually defined as a system of fundamental principles ac-

cording to which a state is to be governed. Constitutions build a framework for a

state’s public policy. They enjoy normative priority over ordinary statutes a nd regu-

late the manner in whic h ordinary laws are made. Constitution s also enshrine t he

fundamental values of a people, often in t heir preambles or in their first part. They

can (but need not) contain a catalogue of basic human rights and liberties.

Constitutions are distinguished from ordi nary legislation by their rigidity. Written

constitutions usual ly require legislative supermajorities, concurrent majorities of

1 Both “constitution” and “constitutional ism” are contested concepts. For an extended d iscus-

sion, see, e.g., Lutz 2006, 1–25. Grey opens his essay with: “Constitutiona lism is one of those

concepts, evocative and persuasive i n its connotations yet cloudy in its analytic a nd descrip-

tive content, which at once enric h and confuse political di scourse” (Grey 1979, 189).

Jörg Tremmel50

Ratio Juris, Vol. 32, No. 1© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

different houses of the legi slature, and/or popular referenda in order to be cha nged.2

By their very nature, constitut ions are intergenerational documents because t hey are

intended to place certain question s beyond the reach of simple majorities, the com-

ponents of which change fre quently. With few exceptions, constitutions are mea nt to

endure for many generations.

In a democracy, the legitimacy of governance is founded on t he consent of the

governed. All those who are subject to t he rule of a constitution should be able to

exert influence over the basic laws that regu late their lives. The principle of popular

sovereignty stipulates that the demos3 i s the ultimate source of governmental power.

As a matter of fact, the demos does not consist of the sa me persons over time as gen-

erations come and go.4 If constitutions are i ntergenerational contracts, how flexible

or inflex ible should they be?5

After this short i ntroduction to the intergenerational challenge to rigid (“diffi-

cult to change”) constitution s, this paper proceeds as follows. Paying tribute to the

classical begin ning of the debate, I start with the Jefferson-Madison dispute at the

end of the eighteenth century, during the incipient constitutionalism in the United

States and France. After clari fying my key concepts, I proceed by describi ng the

two concerns that can be voiced agai nst very rigid constitutions: the sovereignt y

concern and the forgone welfare concern. A fter discussing several styl ized cases, the

intermediate upshot is that only const itutions that are not too difficult to ch ange are

compatible with the principle of intergenerational justice. I then discuss five coun-

terarguments, i.e., arguments in favour of constitution al rigidity. I conclude that they

are all not entirely wrong, but not as convi ncing as their rejoinders. I then put forth

my proposal for a procedure of constitution-amendi ng, namely, that recurring con-

stitutional reform comm issions at fixed intervals stri ke the best balance between the

necessary rigidity and the necessary f lexibility of constitutions, thereby fulfilli ng

2 In countries wit hout written constitut ions, such as the United Kingdom, Israel, or S audi

Arabia, constitution al provisions can, in pri nciple, be changed by ordina ry acts of the

legislat ure.

3 The Greek term demos (δῆμος) designates the c itizenry withi n a people, while the term ethnos

(ἔθνος) refers to a nation as an eth nic group. Historically, the establishme nt of demes as funda-

mental units of the st ate by Cleisthenes in 508B.C. was an importa nt step in the evolution of

political order out of kin st ructures.

4 A contemporary account th at is oblivious to this empir ical fact and sees a demos— in the

tradition of Jean-Jacques Rousseau or Ca rl Schmitt—as a homogenou s entity is Muñiz-

Fraticelli’s (2009). He theorises in the ontological pa rt of his article: “As sovereignty is more

than the mere exerc ise of force, it must be the case that there exi sts a norm that recognizes le -

gitimate authority i n the sovereign. Sovereignty pre supposes such a norm; other wise it is

merely the exercise of power wit hout justification. Now, popular sovereignty is t he sover-

eignty of ‘the people’; it is not the imposition of the wi ll of the majority of individua ls in a

certain terr itory, but the exercise of sovereignty by the people as a whole, as a collec tive entity.

Therefore, for popular govern ment to be intelligible there must exi st a norm that grants legit-

imate authority to thi s collective agent. While it is true t hat the norm must have an origin, the

sovereign people itself ca nnot be the source of it; before the norm t here is no ‘people,’ but only

an individual or group of i ndividuals exercising arbitrar y power. In conferrin g legitimacy to

‘the people,’ the legitimating norm a nd the democratic sovereign come i nto being at once”

(ibid., 401–2).

5 Otsuka (2003, 136) describes the problem of i ntergenerational sovereignty like th is: “[H]ow

can one defend the cla im that laws enacted by a deceased generation of cit izens of country x

have any authority over the present generation of c itizens of country x?”