The life and death of constitutions

Design by LSA member Danielle Rudes at George Mason University The Law and Society meetings in 2019 are taking place in Washington DC at a time when many of our international friends are wondering whether they should travel to a place where the national president has made border crossings arbitrary and painful, denied visas to those coming from disfavored countries and in general trampled on the ideals that the United States has long preached. To take a stand against the damage being visibly done to both constitutionalism and the rule of law by the incumbent American administration, we picked “dignity” as the theme for these meetings (Figure 1). But “dignity” was also encoded criticism, designed to ensure that the theme of our conference would not raise red flags on visa applications. We hoped that the Trump Administration would not find dignity as dangerous as we found it inspiring. And so here we are. Not all of our colleagues were able to join us; in particular, we are dismayed that nearly all of our Nigerian colleagues' visa applications were rejected. All the more reason for us to insist on dignity as our fundamental organizing principle, even if it is not at the moment honored by the country in which we meet. Dignity is the heart and soul of many modern constitutions. The German Basic Law holds in Article 1 that “Human dignity is inviolable. To respect and protect it shall be the duty of all state authority” (Germany, Basic Law. 1949). The Colombian Constitution similarly leads with dignity in Article 1: “Colombia is a social state under the rule of law... based on respect for human dignity” (Colombia, Constitution, 1991). And the inspirational South African Constitution proclaims in Article 10 that “everyone has inherent dignity and the right to have their dignity respected and protected (South Africa, Constitution, 1994).” But dignity has never been the organizing principle of the US Constitution, which has taken ideas of liberty—often honored in the breach—as its touchstone instead (Whitman, 2004). Indeed, it is hard to say that a spirit of dignity characterizes our present moment. Just down the street from the hotel where we are meeting, President Trump occupies the White House, spewing forth daily insults and threats against the people and principles he refuses to honor. But constitutional endangerment is not just happening in the US. The threat to dignity from aspirational autocrats extends far and wide, as Jair Bolsonaro in Brazil, Nicolás Maduro in Venezuela, Narendra Modi in India, Recep Tayyip Erdogan in Turkey and others fan the flames of hatred against their political enemies and legally remove (or ignore) the constitutional constraints on their power. Brexit in the UK was a campaign run and won by English nationalists who rejected the European project and its value constraints—and sent the rickety British constitution into crisis. Viktor Orbán in Hungary and Jaroslaw Kaczynski in Poland are undermining the rule of law and turning once reasonably functioning democracies into autocratic experiments. The threat to democracy, human rights and the rule of law is global. And human dignity is taking a hit. In its Freedom in the World annual report for 2019, the democracy-rating organization Freedom House declared that it had just “recorded the 13th consecutive year of decline in global freedom ... Democracy is in retreat” (Freedom House, 2019, p. 1). Other democracy raters agreed. The Varieties of Democracy (V-Dem) project called its annual report in 2019 “Democracy Facing Global Challenges,” and noted that in the prior year, “the most dramatic changes occurred in Hungary, with a decline of almost 30% on the LDI [Liberal Democracy Index] scale” (Varieties of Democracy, 2019, p. 22). In 10 short years, Hungary—a country where the Law and Society Association met in 2001—fell from the heights of “liberal democracy” to teetering on the edge of “electoral autocracy” in which it is virtually impossible to change a government through elections. [Hungary in fact was judged to be “no longer a democracy” the year after this presidential address was delivered (Varieties of Democracy Project, 2020, p. 4).] I'll have more to say about Hungary later, as it is the place I study most closely, but for now I'll just note that what happens in Hungary today can happen in a democracy near you tomorrow. If constitutional democracy is failing and autocracy is on the rise, putting human dignity at risk, what can and should we as scholars do to stall the slide, and perhaps even reverse it? In the Law and Society world, we have long pondered our relationship to what Austin Sarat and Susan Silbey famously called “pull of the policy audience” (Sarat & Silbey, 1988). Studies of the role of law in the world are persistently interesting to people in power, and Sarat and Silbey cautioned our field against becoming too comfortable with that fact. Not that sociolegal scholars should remain silent on matters of policy. Rather, Sarat and Silbey urged that we be more thoughtful, more explicit about our commitments and more protective of our independence as scholars. They argued that we needed to maintain a distance that would allow us to remain critical both of the repressive uses of power and of instrumental uses of scholarship. They argued against cooptation, against the agendas of our field being set by external standards of relevance and against taking the script of legal liberalism as the only way to think about law. Since Sarat and Silbey wrote, however, many of us have had the vertiginous sense that our ideas have escaped from academic circles, and are being deliberately used against what we value, regardless of whether we have cooperated with power or not. Who has deployed social constructivism better than the defenders of autocracy, who now insist that all truth is relative and perhaps does not exist at all? Who has taken on board the critiques of liberalism better than the aspirational autocrats, who now insist that the liberalism is an old-fashioned and inadequate response to the challenges of today? If ideals of objectivity have been thoroughly unmasked by academic critics, it is the autocrats who have most eager to abandon objectivity altogether as a self-aggrandizing ruse created by those who really pull the strings in this world. The accusation of “political correctness,” once a reminder inside critical theory circles to maintain a critical edge, is now regularly deployed to mock those engaged in critique. Since Sarat and Silbey wrote, an international anti-intellectual autocratic movement has used the ideas generated by reflexive scholars to power their illiberal alternative realities, to mobilize scorn for intellectual life and to troll progressives. What many of us used to see as a strength—which was the sociolegal studies' “insistence that the ability to know what is there is limited” (Sarat & Silbey, 1988, p. 131)—is being deployed by aspirational autocrats who routinely say that up is down and down is up, recalling the then-ironic contribution to a volume on critical legal studies about the decline of the up-down distinction (Shapiro, 1984). If the law and society movement stood for the proposition that legal rules were shot through with “indeterminacy, contingency and contradiction” (Sarat & Silbey, 1988, p. 105), we are now faced with leaders who twist the meanings of rules while we seem to reverse ourselves by insisting that rules are real and should be binding. In short, while Sarat and Silbey seemed reasonably confident that we scholars could have conversations among ourselves that would not escape into the policy world without our participation, that world no longer exists. Now, whatever we write and whatever we teach have become fair game for immediate political scrutiny and unauthorized political use. Instead of being pulled into the orbit of the policy audience by its irresistible allure, we are being pushed and shoved around by it, often against our will. So how do we relate to that policy audience now, given that it will not just leave us alone to do our academic work? In my view, we do not have the option of doing nothing. Even if we try to hide from this politicization, it is coming after us. Universities are being attacked and their once-secure academic walls have been breached in all democracies in trouble. Central European University, which hosted the Law and Society meeting in 2001, has been pushed out of Budapest and has had to take up residence in Vienna. The Turkish government has engaged in mass firings of academics after the attempted coup in 2016. The Indian government has attacked universities, first in Kashmir and then across the country, demonizing its academic critics and urging a restriction of controversial content on reading lists. In the United States, academic freedom is being undermined by a misguided merger with “free speech” in which outrageous views with no evidence to sustain them are treated as identical to careful research with professionally approved methodologies. Across democracies in trouble, it has become difficult to defend academic knowledge against the pretenders and to defend the independence of universities against those who seek political control. Whether we like it or not, our ideas are weaponized against us by those who turn facts into opinions and insist on having their own fact-free opinions stand on equal ground. And that's true regardless of whether we openly advocate a political perspective or whether we think of ourselves as neutral scientists devoted to pushing back the frontiers of ignorance, as my dissertation advisor Art Stinchcombe used to say. When all ideas are politicized and the independence of universities is under threat in all places where democracy is endangered, the very idea that we can stand outside the political fray becomes naïve at best, dangerous at worst. As autocracy is on the march, we must think through our responsibilities as scholars in general and sociolegal scholars in particular—or else our fate will be decided for us. If we once had the luxury of researching topics for the sheer intellectual joy of it without worrying about our findings' political implications, we should now realize that the academy has been ripped open to public view and that we will almost surely lose control of the ideas that we generate. Like dissidents in surveillance states, we should be aware that our internal discussions are being monitored by those in power to provide potential fuel for the bonfire of what we care about most deeply. But like dissidents in surveillance states, this realization should make us more and not less committed to “living in truth,” as the Czech dissident writer Vaclav Havel once said without the slightest trace of irony. Living in truth “meant, first of all, telling the truth in answer to official propaganda, but also behaving as if fundamental rights ... could be taken for granted” (Washington Post, 2011). Cue the cringes! Who among us has not cringed at the assertion of a monolithic and certain truth or at the invocation of liberal rights as an “unqualified human good” (as E.P. Thompson once said about the rule of law to surprised gasps [Thompson, 1975, pp. 258–269])? One of sociolegal studies' proud legacies is its long and honorable tradition of criticizing liberal legalism! But it's one thing to critique liberal legalism when it is ascendant and potentially open to improvement—and another thing to attack it when it is being replaced by something far worse so that we lend support to the autocrats' deconstruction of it by tearing liberal legalism down (Scheppele, 2019). Cringes always occur in context. While aspirational autocrats are eager to steal some of our ideas—about political correctness, constructivism and the false promises of rights—they are also eager to obliterate the contributions of sociolegal studies to the advancement of equality, taking particular umbrage at “genderology” (Verseck, 2018) and critical race theory (Harris, 2020). Some might think that the high-level attention paid to these vital ideas is flattering. Who knew that our theories could become so important in setting the agenda of political debate? But others know that the movement of an academic culture of critique into non-academic political settings risks self-destruction when ideas travel without context, academic vocabularies are mocked, and the assumption of equal dignity is stood on its head. These days, political leaders use ideas familiar to us to argue that equality-seeking measures constitute unjust discrimination against those with privilege. In academia, being inconsistent in the positions that one takes counts against us, but such devotion to consistency does not extend beyond our seminar rooms. Sometimes, the aspirational autocrats are eager to use academic ideas that support their positions, but they just as readily seek to mock the academic ideas that threaten them. The point is, however, we do not get to choose the terms on which our ideas enter the public debate. What's a sociolegal scholar to do? What I will suggest in the rest of this presidential address is that we should stop cringing in corners hoping that aspirational autocrats will ignore us as we talk among ourselves and as they steal many of our ideas for purposes we find abhorrent. Instead, we should take our insights into fight for dignity and unsettle the autocrats on their own home turf. In short, we need more than clever defense, especially when it is becoming increasingly difficult to wall ourselves off from politics. We need to own what we value and what we know—and bring crucial public audiences onside. Before providing one example of how I have tried to go on the offense against aspirational autocrats as they destroy liberal legal constitutions, I will first provide some background for how we might think about law in this process. Given that the new autocrats are attacking constitutional law in particular as they entrench themselves in power, we should understand as sociolegal scholars how constitutions work. And then we can weaponize these ideas against the autocrats. Most people do not go around thinking about constitutions very much. Generally, this is a very good thing. If constitutions work as they should, then much of what constitutions “constitute” will be taken for granted. The Westminster Parliament or the Colombian Constitutional Court or the French Conseil d'État or the South African Human Rights Commission or the Indian Lok Sabha have a certain institutional solidity. There may be pitched political campaigns over who gets to occupy the key posts within those institutions. The decisions these institutions make may generate praise or criticism. But the existence of the institutions, their basic rules of operation and the methods for filling their vacancies should simply seem obvious in any constitutional system that works. Of course, even functioning constitutional systems will have controversies that force attention onto specific topics at specific moments. Does the US Second Amendment really include a personal right to own guns? Does the threat of terrorism justify surveillance of all electronic communications? Does the law right to asylum guaranteed by international law override more restrictive domestic immigration law? How long can the president—or prime minister—rule by executive decree during a state of emergency before the legislature must be consulted? How far does any European constitution permit delegation of key decisions to the European Union? Many of these controversies will culminate in judicial decisions that resolve the issue, at least legally and at least for now. Every constitutional system will have close questions, contested areas, blank spots to be filled in with constitutional interpretation as well as points of genuine disagreement that may not be easily resolved. Such is the stuff of what is typically taught as “constitutional law” in most countries. Law professors focus primarily on these legal controversies and their legal resolution rather than on the background assumptions of the constitutional order. This is not surprising: resolving legal is what and and what legal academics to as sociolegal we should not the functioning of constitutions with the legal resolution of specific constitutional how over those they do not the most crucial about a constitution real by those by it so that they can take of it for Before constitutional controversies over specific constitutional are as a of constitutional constitutional law” of those of a constitutional that go without Like knowledge more constitutional law in the only becoming when a constitution to the point where it in the world is by no a or process. There is in whether of constitutions have into knowledge and can simply be to across countries and across within a one of the some constitutions never become & exist on but have no existence in of the constitution today or the one from They might the the way that in may ideals of may not much about real life outside the it may be of certain In the constitutional law we constitutions by that the with constitutions are simply not constitutional But there is a across which constitutions can in institutions and being taken for granted. These can be and as when a constitution a constitutional of and for rights that become in the Constitutional can also be more for only the of of power among the but more Constitutional can also be or only in some and not or real only on some topics and not a in the and of the they But their on into knowledge and being taken for at least in some some of the is to where and how constitutional law functioning constitution how constitutional are principles that the operation of the and political rules that the the field of political and years, only one prime at a even while the specific within that field may be contested and constitution the of to generate to include in political and to find to the engaged in without down the When a constitution is it to the rules of the game from the game in that simply go without the of any specific constitution does not to its relationship to of and all constitutions are have outrageous spots and evidence of political and The sociolegal studies movement has long this and has been a of critique many of us have hoped to make constitutional well that the of a constitution does not the of its But the existence of a constitution matters even when it is it can as a on political 2019). Even if a constitution without a constitution can be far as who has in a or failing state can the of constitutions is constitutions are not real in the way to all of their As once about the there can be a of in the that law In the of is both a to those who might be an and also an to certain state to in a particular way once they have evidence that a particular is to have committed the constitutions also to are how their institutions are set up and how they as in these must those run within the rules set by the constitutional system with to and so about their rights and how to them through constitutional All domestic what principles the constitutional government is committed to and how far is But given these that are sent to and by the of created in audience of may those who occupy the a constitution that has into knowledge will to as if the institutions exist outside them and even once they themselves have become the public of those institutions by of official The Constitution for when the President of and is by others as just one of an called “the an that that particular own and interpretation of the The if will to exist after he the rules of the game will when he must If the constitution he will in fact leave when the time If the South African Constitutional Court is a on that Court will for the and not just for that these are Even when virtually all support a particular the Court must it down when it the And the must the Court even if they with it, of course, some over constitutional is not only but may make a constitutional more & If the French Constitution is the French of will see as one in a long of of an that has responsibilities and a constitution to In and to the fact that the may that it to defend constitutional principles When the of their own personal with the of the the general public then constitutionalism is in trouble. must seem real both to their and to those who are by and the who through and occupy official posts must not be with the as a constitution is up and new and new must be into a constitutional go can then take for granted. constitutions, once can be taught as and obvious or as and In short, constitutional the it The of constitutional life becomes a crucial for constitutional even when is taught as a How constitutional is generated and on becomes a crucial of what holds constitutional in When constitutions are functioning to in the world, the of this constitutional world as if the constitution a functioning political with legal rules know this of as the as they are real in their The holds true for the If people a constitution is then constitutional ideas have real constitutional knowledge becomes a of as they the social world and find that others as if their those of the in when I as if something is real and others my by also as if that very something is real in the for if I my US when I to the US from a and the immigration official at the the it in system and into the country, my as a in good is If this is not taken as real the border even if I it was real in it to the immigration official in the first the of the system of through which I by my country to The of my will not be in a of make a of such will my If this happens to many people at if those for a the of the will under as if constitutions are in the of others is one way to make them But if persistently or the are persistently then the of constitutional is as constitutional Whether constitutions are real can be also with respect to the who are by a of at least some of their public and by the is a legally Constitutional rights of protect life and public in politics. constitution will what the state must do for its and what it do to them. And if state to its legal the of those is One can see how very it would be to find in the of a constitutional not As famously in a year in which constitutional all over that is into was about the of the of on the of the world, but the can be said about the of constitutionalism in the of new political something that was also happening at the time he an like new people as if that no longer exists. constitutionalism how constitutions to be treated as real and taken for under what and by To get at we need to How do constitutions to have an existence in How do they to be the obvious always a as if academics have better to do with their time than at that were before the But the fact that a constitution is obvious in one time and place does not that that particular constitution will remain obvious or that constitutions will easily be able to that is a crucial of constitutions and we need to understand how is generated to know how to and constitutional But what is taken for is not how can we the of a One good way to study whether constitutional holds is to study is an alternative constitutional by its as a for an constitutional is in the sense that it an constitutional and in the sense that it as an alternative for the of a particular the of the official constitution of the can no longer What

Administration (probate law · Bill of rights · Constitution · Constitutionalism · Criticism · Democracy · Dignity · Duty · Political science · Politics · Sociology · State (computer science · Theme (computing · Judicial and Constitutional Studies · Law · Multicultural Socio-Legal Studies

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