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

16 comments:

Carl said...

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.

What explains, then, the abject failure of the French to rectify the near total and complete marginalization of its non-white citizens. Is it just a failure of will on the part of France's white majority? Say what you will about American constitutionalism, but the 14th amendment hasn't been a complete failure.

egarber said...

Though I don't advocate losing constitutional anchors, I think the preamble (as a matter of guidance) leaves room to "form" things -- vs. merely preserving. After all, it starts,

We the people of the United States, in order to form a more perfect union,

In fact, I think this wording hurts the originalist argument -- insofar as we try to determine what the framers really intended with the broad wording spread throughout the document.

Sobek said...

Whatever the original intent of the U.S. Constitution and its framers, I think we long ago left behind the idea that our constitution acts purely as a means of stability, as opposed to a motor for "empowerment."

Although I reject, for example, affirmative action programs, the fact is that the Constitution tolerates (embraces?) them to some extent, and that extent is not merely marginal.

"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."

I'm extremely skeptical of that thesis, given that the French Civil Code is the basis of such a wide range of other nations' laws. I can't imagine that French scholars think their consistutional underpinnings are irrelevant to those nations which have followed the French model, or that they might bristle when their former colonies look to the mother land for constitutional guidance.

Michael W. Dowdle said...

Thank you for all your comments. Some quick responses:

1. In response to Carl: I'm not sure what is being referred to by "abject failure of the French to rectify the near total and complete marginalization of its non-white citizens." Over the last 20 years, France has had significant problems assimilating an explosion in immigrant populations, and there is now significant social discrimination against persons with Arabic and North African surnames, but this is due to factors that have nothing to do with its distinctively critical constitutional attitude. The source of the discrimination has primarily do with religion, not pigmentation. And, its problems in this regard are no worse than found elsewhere, including the US. For a very good and balanced discussion of the recent problems that Arabs and North African immigrants have been facing in France, their causes and French responses, you might check out Sixty Million Frenchmen Can't Be Wrong by the Canadians Jean-Benoit Nadeau and Julie Barlow.

2. In response to egarber: You are right that American constitutionalism has found subtle workarounds to my complaint as it is applied domestically. As I mentioned above, my complaint is not with the American system as applied domestically. But these workarounds are not included in the vision that we tend to export to other countries.

3. In response to sobek: The French civil code is not a part of its constitutional structure. And I have not seen or read of any significant efforts by France entities to advocate the adoption of that Code, or any significant part of it, as a solution to some problem of constitutional development. It is undoubtedly true -- I suspect -- that France does cooperate with other countries that use a French-style code. But I have never seen coming out of France (or anywhere else for that matter) anything close to the constitutional and 'rule of law' prostelyzing that comes out of the US.

Carl said...

there is now significant social discrimination against persons with Arabic and North African surnames, but this is due to factors that have nothing to do with its distinctively critical constitutional attitude

I've heard from French people who pride themselves on the fact that there is no such thing as "gay rights" or "women's rights" or minority rights" in their country, but only the "rights of citizens." Is France's official "color blindness" something constitutional and do you think it has worked (leaving aside the issue of France's muslim minorities, if you like)? If it hasn't worked, and France's constitutionalism is much more flexible than our own, why have we been able to distance ourselves from the myth of a colorblind society so much more effectively? I am not suggesting that amending a constitution is the only way to deal with racism (or anti-islamicism), but I'm curious as to why the French have not gone this route given your claim that their approach "sees the state as a possible tool for citizen empowerment."

For a very good and balanced discussion of the recent problems that Arabs and North African immigrants have been facing in France, their causes and French responses, you might check out Sixty Million Frenchmen Can't Be Wrong by the Canadians Jean-Benoit Nadeau and Julie Barlow.

Thanks. Will check it out.

Michael W. Dowdle said...
This comment has been removed by the author.
Michael W. Dowdle said...

France recognizes gay rights and women’s right, at least in the sense of anti-discrimination. By and large, I think gays in particular enjoy significantly greater protection and acceptance in France than they do in the US. See also the Wikipedia entry on “LGBT rights in France” at http://en.wikipedia.org/wiki/LGBT_rights_in_France.

France’s distinctive and constitutional “colour-blindness” comes primarily in the context of race and religion. Historically, discrimination against neither seems to have been much of an issue. As of the 1970s, for example, France culture appears to have been largely more accepting of blacks than American culture. France’s particular problems in this area arise in the 1980s – the product of an explosion in immigration (FWIW, as of 2000, no less than 6% of France’s total population is classified as being an ‘unskilled immigrant) and an ill-thought out urban housing scheme in the 1960 that had the effect of insulating and isolating the poor and immigrant population from the larger culture.

During the 1980s and 1990s, this insulation and isolation resulted in increased vulnerability primarily among Muslims, because the general population perceived Islamic fundamentalism as a threat to France’s aggressive constitutional secularism (called Laïcité). But the French government was able to address this problem somewhat effectively – ironically due in significant part to innovated policies advances by then Interior Minister Nicolas Sarkozy). These policies deviated significantly from the heretofore understanding of the demands of laïcité, but they were generally accepted. A good example of the constitutional pragmatism that I was endorsing in my initial post. One of the significant findings of investigations into the riots of 2005 was that there was no significantly ‘Muslim’ component to that unrest.

There was, however, a significant ethnic component. While Sarkozy’s 1990s policies in generally appear to have made Muslim’s feel more welcome in France, they did not alleviate the general French population’s prejudicial presumption that France’s growing Islamic population represented a growing threat to laïcité. Because France’s constitution forbids public or private entities from requiring or even soliciting data about religious affiliation, French prejudice articulated itself primarily by discrimination based on last (and first) name, and secondarily – but nevertheless significantly – by discrimination based on pigmentation (both of which appear to have served as surrogates for Muslim identity) (the latter form of discrimination is less effective because French constitutional law also forbids public or private entities from gather data regarding race or ethnicity). But the latter was not simply a discrimination against all non-whites. Black South-Africans, black Americans – blacks who were clearly not Muslim, do not appear to have suffered significant discrimination.

Whether and how French constitutionalism will be able to address this new problem remains to be seen. My larger hypothesis, however, is that to the extent it does seek solutions to this problem, its search will not be as constrained by concerns of preserving some perceived reference to historical constitutional tradition as would be Americans.

Interestingly, one way in which French constitutional ‘colour-blindness’ has exasperated this problem somewhat is by preventing the French government (or researchers) from gathering useful data about the shape and prevalence of racial and religious discrimination in France, because that colour-blindness forbids researchers from identifying and thus targeting questions about discrimination to particular racial or religious minorities in their data-gathering.

Carl said...

Thanks for the excellent response, Mike.

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