Tuesday, February 05, 2008

Towards a Constitutional Corrective: So Close and Yet so Far

One of the problems with American constitutional discourse is that it is so – how do I put this? – 'American'. Of course, this is not really a problem when it is being used to analyze issues arising under the American constitution. But American constitutionalism (and the particular experiences it embodies) also tends to dominate comparative and international constitutional discourse as well. And it is here where the problem lies.

Simply put, much of the rest of the world, particularly but not exclusively the developing world, are confronted by constitutional developmental issues that the American experience simply never confronted. The American experience is innately conservative – we have conceptualized our constitution as a means of preserving a “more perfect” constitutional and social order, rather than as a means for building a new order. It is a constitution that seeks to restrain ‘government’. But much of the rest of the world is engaged in a process of building such new orders. Like it or not, in such polities ‘government’ becomes a much more dynamic motor. For these polities, a constitutional vocabulary that innately assumes that “that which governs best is that which governs least” is of possibly dysfunctional relevance.

An alternative to the American vision is that of the French. In contrast to American constitutionalism’s emphasis on stability and continuity, French constitutionalism seems much more willing to embrace possible processes of discontinuous constitutional transition and development. French constitutionalism also sees the state as a possible tool for citizen empowerment (while still recognizing its dangers) rather than as simply a necessary evil. Along these lines, we might also note that it was the French vision of constitutionalism, not that of the Americans, that drove the initial spread of the modern constitutional vision across Europe in during the first half of the 19th century. In this sense, I think that the French constitutional experience is much better suited for ‘developmental’ component of constitutional development than the American experience.

Unfortunately, there’s a catch in all this. When I recently presented this hypothesis to a group of French students during a class I was teaching on comparative constitutionalism at Sciences Po in Paris, I was met with a surprising degree of skepticism. By and large, my students took affirmative pride in the French rejection of American “constitution-worship” – in the words of one. Turns out that the same innate critical perspective that makes French constitutionalism so accommodating to process of transformative evolution also seems to make the French constitutionalist particularly weary of exporting her constitutional experience as a ‘paradigm’ for others. But this also inhibits the ability of the French experience to offer important alternatives and correctives to the American experience, particularly in so far as the developing world is concerned.

Posted by Mike Dowdle