Quibbling, Wrangling

Framing​ a constitution for a country undergoing political upheaval is a messy and dangerous business, and it is by no means guaranteed to succeed. We think of South Africa in the early 1990s as a heartening example. ‘A relatively conservative Afrikaner leader decided to negotiate before he had lost,’ the journalist Colin Eglin said, ‘and an imprisoned leader of a liberation movement decided to negotiate before he had won.’ But when Nelson Mandela’s ANC and F.W. de Klerk’s ruling white National Party sat down at Kempton Park in April 1993 to begin what was called the Multi-Party Negotiation Process (MPNP), representatives of 24 other parties sat down with them, each with its own agenda. All were highly suspicious of the others. Some, like Chief Buthelezi’s Inkatha Freedom Party, walked out of the negotiations; more extreme factions, on both the right and the left, boycotted the process altogether.

That the two main parties sat down at all could not have been taken for granted. Someone had to push for it; someone had to persevere. Earlier negotiations at the Convention for a Democratic South Africa in 1992 had collapsed amid ‘rolling mass action’, and against a background of continuing attacks on demonstrators by the police, the army and extremist militias, not to mention violence between rival factions among the African majority. There were more than 3300 deaths from this turmoil in 1992 and nearly 3800 the following year. Getting the negotiations going again was a process fraught with recrimination and failures of confidence. The ANC didn’t trust white politicians, especially since some of de Klerk’s ministers were known to have been conspiring with violent right-wing elements to undermine it. And white South Africans didn’t trust the ANC, which had only recently been unbanned. Mandela had refused to break the organisation’s links with the Communist Party, and he had refused to renounce armed struggle. Many ANC members, clinging still to an insurrectionist ideology, were suspicious of what they called the ‘bourgeois constitutionalism’ that Mandela, along with Oliver Tambo and Thabo Mbeki, brought to the conference table. They didn’t trust the legal experts who would help with the framing, let alone the judges (some of them tainted by complicity with apartheid) who would be responsible for administering whatever new constitutional order came about.

The task of the MPNP was to draft an Electoral Act and to devise new structures of political power, replacing the decades-old system of apartheid and racial disenfranchisement with a constitution that could command the confidence of all the people of South Africa. To avoid logjams, the plan was that the ANC and NP should secure agreement on various proposals before they were submitted to the smaller parties for ratification. But it quickly became apparent that even between the main protagonists there was little or no consensus on constitutional principles.

Bruce Ackerman says that the events he describes in his new book do ‘not support the now standard view of South Africa as a paradigmatic case of “negotiated transition” in which elites managed the tricky business of change through enlightened collaboration’. I think he is right. At the beginning, Mandela and de Klerk each challenged the other’s right to be at the table. And their constitutional positions were quite radically at odds. For de Klerk, something like group rights for the white minority was a non-negotiable demand. The whites needed guarantees: ‘We will not say yes to a suicide plan,’ he said. On the far right, there was agitation for an Afrikaner volkstaat. At the very least, the NP wanted a devolved federal structure rather than the unitary state that the ANC aspired to. Mandela, for his part, saw these federal aspirations as a Trojan horse, a way of retaining a white veto, even as de Klerk tried to reassure South Africans that ‘the accent on minority rights is by no means a form of hidden apartheid.’ Since the drafting of its Freedom Charter in 1955, the ANC had demanded a straightforward system of one person, one vote, with majority rule, which would give it the ability to transform South Africa’s unjust economy: ‘The national wealth of our country, the heritage of South Africans, shall be restored to the people.’ But, precisely because of this prospect, the NP wanted a complex consociational system, in which the consent of a white legislative chamber would be necessary for measures passed by the African majority. There was also what de Klerk would call ‘a titanic struggle’ over the constitutional protection of private property. Could property rights be guaranteed without alienating the democratic socialists, let alone the communists, who had fought for economic justice? Could the myriad injustices of apartheid be remedied without wrecking the economy?

It looked hopeless. In his fine book The Rise and Fall of Apartheid (2009), David Welsh asked: ‘How could two such opposed organisations as the ANC and the NP ever hope to reach a constitutional settlement, given their respective histories, their radically different constitutional proposals, and a serious difference of opinion over the mode of drawing up a new constitution?’ Events made things worse. In April 1993, shortly after MPNP began, Chris Hani, a prominent communist leader, was assassinated. A few months later white paramilitaries smashed their way into the negotiating hall and roughed up the delegates when they heard that the proposal of a white volkstaat had been rejected. Coalitions were formed among various factions in order to stage a walk-out, and those who remained had to address the real possibility that many of the parties involved might boycott the planned elections, undermining their legitimacy.

In the ‘quibbling, wrangling, horse-trading and compromises’ at Kempton Park, the parties were supposed to be designing an interim political system as well as building a framework for a final constitution. But what was the relation between the two processes? The ANC’s hand would be (and in the event was) immeasurably strengthened by an election victory in 1994. Should it then be in a position to put power-sharing arrangements aside? Would Mandela’s restive followers tolerate anything less? Should the 34 principles arrived at in constitutional discussions at the MPNP be binding on final constitution-drafting by a post-election assembly? And who would enforce them?

Time was running out. Negotiations like these are always conducted in a shrinking window of opportunity as the bargainers try to hold their own factions together and prevent the haemorrhage of hope and goodwill. We look back now at the final constitution of December 1996 as a triumph. It was a success story, in the short and medium term. But there has been a series of crises since 1997 and it remains to be seen whether South Africa’s new constitutional framework can safely accommodate the struggles over economic reform that the country still faces.

Ackerman gives us forty pages on recent South African history, and he is surely right that we need that level of detail in order properly to appreciate the difficulty of framing a constitution in the midst of political upheaval. And not just in South Africa. There is a chapter on France in the postwar period, telling the story of Charles de Gaulle’s intervention at the collapse of the Fourth Republic and the emergence of a strong Gaullist presidency in the constitution that replaced it. There is a long chapter on the mistakes made by Lech Wałęsa in Poland, including his acceptance of communist demands for the institution of a powerful de Gaulle-style presidency in return for a freely elected senate, which Solidarity could control. This deal, as Ackerman says, ‘made short-term sense. But it was a disaster in the middle run, once Solidarity had swept the communists from their dominant position in the other branches.’ When Solidarity fell apart, the powerful presidency was there for one or other faction to seize and exploit. Ackerman traces direct lines from these missteps in the 1980s and 1990s to Poland’s current crisis, in which President Kaczyński and his Law and Justice Party are waging war on the Constitutional Tribunal and other institutions.

There are chapters on postwar Italy, on Jawaharlal Nehru’s India, and on Israel’s indefinite postponement of the task of drafting a constitution. There are sections on Iran, which Ackerman regards as a constitutional regime as opposed to a theocracy, and on Myanmar. There is even a discussion of the framing of the US constitution, though all the other examples are from the second half of the 20th century. In each case there is a charismatic figure, like Mandela, de Gaulle, Nehru, Wałęsa, each of whom for one reason or another sought to embody his revolutionary achievement in a permanent framework. Ackerman gives us vivid depictions of the day to day political difficulties they faced and the calculations they had to make to entrench structures that would survive transition to the next generation of leaders and maintain the constitution’s authority as a popularly ratified text.

These are all supposed to be stories of revolutionary constitutionalism. Ackerman’s notion of ‘revolution’ is quite capacious. It does not necessarily mean a storming of the Bastille, but it does include upheavals that overthrew anciens régimes such as apartheid, the British Empire in South Asia and the Soviet order in Eastern Europe. The societies that Ackerman describes did not undergo totalitarian revolutions (he calls them ‘totalising revolutions’), as Russia did in 1917. Rather, they were revolutions ‘on a human scale’, with charismatic leadership, fissiparous politics and moderate aspirations.

It’s a reasonable category to study. Sometimes, however, it seems that Ackerman’s narratives are held together by nothing much more than similarities that happen to occur to him. De Gaulle was like George Washington: they both faced hardship and won military victories. We are supposed to be struck by the fact that de Gaulle endured political setbacks by retreating to Colombey-les-Deux-Eglises, while Washington could retreat to Mount Vernon. Alcide de Gasperi, leader of the Christian Democrats in Italy, was like Mandela in having defied a repressive regime; de Klerk was like General Jaruzelski. And so on.

Or perhaps it’s an analytic framework that binds Ackerman’s examples together. We are told that revolutionary constitutionalism has a distinct periodisation. Time One is the revolutionary process; Time Two is the period of immediate post-revolutionary government; at Time Three there is a succession crisis; Time Four marks the consolidation of constitutional authority. Ackerman is surely right that time as such is an important element. Charting the Polish debacle, he tells us that the time for genuine constitution-building had passed by 1997: ‘Future revolutionaries – and there will be many – should recognise that they are running a race against time at the Founding. If they fail to constitutionalise the high-energy politics of commitment during the first few years of their ascendancy, the resulting alienation can cast a dark shadow on their country’s political development for a long time to come.’ But the repetition of the ‘Time One, Time Two …’ architectonic gets a little tiresome. It detracts from the particular detail of each account, which in the end is Ackerman’s main contribution.

Mostly what holds the book together is the pursuit of a theme that honours Max Weber’s work in political sociology: how in the mess of human affairs can political charisma be transformed into a regulated and enduring structure? Weber asked how charismatic authority could be routinised or even bureaucratised. Ackerman’s question is slightly more specific: how is the charisma of a leader like de Gaulle or Mandela or Wałęsa constitutionalised? Someone like Mandela didn’t just take and exercise power under the auspices of his own personality. He got together with others to put in place an enduring system of authority, a system that would house the aspirations of his successors, even his opponents, in future years. And he did this not by means of secret machinations, but by proclaiming a public set of rules and values, with a view to their being accepted by the people as a whole.

Constitutional design requires careful thought. There are all sorts of choices to be made and bargains to be struck concerning the shape and character of political institutions – models abroad to be followed and traditions at home to be honoured or discarded. The framing may take years, as one draft is discredited or superseded by another. Each part of each scheme has to fit the rest in a sort of working engine of process and constraint. That surely requires expertise. But how is constitutional expertise reconciled with the ideology of popular ratification? Are there features of constitutional design that can plausibly be attributed to the people? And there is also the relation between constitution-framing and ordinary politics to think about. It isn’t enough merely to distinguish them, as Ackerman did in his earlier books. The one has to take place in the midst of the other. Though the adoption of a constitution is supposed to be an extraordinary event, it happens on an all too human scale. It is not a process tidily detached from the rest of politics. Almost forty years ago, Ackerman published a book called Social Justice in the Liberal State, in which he invited us to consider a version of John Rawls’s ‘veil of ignorance’ where we all start out together in a spaceship circling an uninhabited planet whose resources we have to distribute among ourselves in open dialogue before any of us is allowed to descend to the surface. In the real world, business as usual doesn’t go away. Political parties form and fissure, leadership contests take place, elections are conducted. Ordinary governance has to continue: salaries must be paid, pensions honoured, crime controlled, proceedings conducted in the courts, legislatures and executive agencies even while judicial authority, presidential power and legislative assemblies are under construction. The sense of extraordinary crisis that constitution-mongering involves can erode or threaten these ordinary routines. And vice versa.

Ackerman​ is Sterling Professor of Law and Political Science at Yale, and naturally for him the prototype of charismatic constitutionalism is the framing and ratification of the US Constitution in 1787 and the addition of the Bill of Rights in 1791. The latter is especially important. Though Ackerman rightly emphasises institutional structure (separation of powers, legislative bicameralism, the authority of the president etc), for him a key element of any constitution is its counter-majoritarian guarantees: the rights and liberties it protects. These are restrictions on majority decision, brakes on majority rule – and there needs to be a tribunal that people will respect which is willing to uphold them. Indeed, Ackerman seems to regard judicial supremacy as the ultimate telos of the processes he is delineating. He knows that not everyone believes strong judicial review is best. But by the 1990s, he says, ‘judicial review had come a long way since the 1940s, when the prevailing British and Continental consensus condemned it as an anti-democratic American novelty. Fifty years onwards, successes in places as different as India and Germany had made supreme courts seem an obvious component in a liberal democracy.’

The counter-majoritarian element in a constitution does not have to be a court. France had always been opposed in principle to judicial review, but in the Fifth Republic an institution called the Constitutional Council acquired something like this power. It was created to give the president an extra weapon to use against the legislature, and de Gaulle refused to acknowledge his own subordination to its authority. But when the charismatic de Gaulle gave way to blander figures like Pompidou, Mitterrand and Giscard d’Estaing, the Council was able to resuscitate its constitutionalist credentials. Ackerman believes that revolutionary constitutions need a power like this. In a batty moment, he even compares the authority of the unelected supreme leader of Iran (currently Ayatollah Khamenei) with that of the justices of the US Supreme Court, inasmuch as both ‘claim the right to safeguard the regime’s fundamental values when they are endangered by popularly elected institutions.’ As far as I can tell, the comparison is supposed to flatter both set-ups.

Why a constitution? Why did these charismatic politicians end up investing so much in the design of a rigid framework and a power of constitutional review when they knew it would eventually hamstring revolutionary reform and that the bargains it required ‘under revolutionary conditions [might] generate mass demoralisation’. Why did they stick with this investment when they knew it would empower an elite of lawyers, scholars and judges who would claim from the safety of their chambers to be the true guardians of the revolutionary inheritance?

Well, constitution-building is not a universal aspiration. Think of the UK, which has no written constitution. (Revolutionary Constitutions is intended to be the first in a series of at least three books, and I imagine the UK will star in one of the later volumes.) Or think of the state of Israel, formed in a series of revolutionary events in 1948. Israel has a working system of government and its electoral and parliamentary rules are clear and (mostly) respected. But it doesn’t have a written constitution either – a fact that is all the more remarkable because Israel pledged itself to develop one in its Declaration of Independence. Ackerman tells the story not only of how Ben-Gurion succeeded in postponing the fulfilment of this pledge – there was no time, he said – but also of how a powerful constitutional court eventually emerged anyway, under the leadership of Aharon Barak.

So: why a constitution? There are many reasons. It’s a way of ratcheting in one’s strongest aspirations – in Mandela’s case, for example, universal suffrage and majority rule. At the same time, it can reassure those whose power is being dismantled: hence the provisions protecting pensions and property in South Africa’s interim constitution. It is also a way of conciliating one’s opponents within revolutionary politics. As the Italian jurist Piero Calamandrei put it, a leader framing a constitution should try ‘to solve problems the way you would see them if tomorrow you were to fill the opposition’s seats’. That is not always easy if at the same time an opposition faction is trying to outmanoeuvre you politically. But constitutional guarantees provide a modicum of assurance in a forum where fortunes are often reversed. Beyond that, there is simple love for one’s country: the wish to give it something more permanent than an uprising, more tangible than a revolutionary frame of mind.

Revolutionary Constitutions is an ambitious and demanding book. It is long, a bit undisciplined and sometimes threatens to get out of hand. There are tiresome and irrelevant disquisitions on Brexit at the beginning and on Roosevelt’s New Deal at the end. The publisher tells us the book is about populism, but really it isn’t: there is little in common between Ackerman’s stories about the thoughtful aspirations of Mandela, Wałęsa, de Gaulle and Nehru on the one hand, and the antics of figures like Trump on the other. Indeed the chapter he devotes to the US at the end is mostly unhelpful. It starts off telling us that the American constitutional scheme wasn’t a unique deliverance of political virtue either, but the result of politics and bargaining amid innumerable crises and compromises. That is certainly worth saying, but Ackerman chooses to develop the point by speculating about what will happen to the US Supreme Court now, given ‘the shifting pendulum in Washington, D.C.’ If Trump loses the presidency in 2020 (or before), there is a chance that the judiciary he has already packed with conservatives, granting lifetime appointments to candidates with razor-thin confirmation credentials, will strike down democratic (or Democratic) legislation.

And so – though I’m not sure about the sequitur – Ackerman gives us a constitutional proposal of his own, something he calls a Popular Sovereignty Initiative. It’s a little unclear, but I think it’s supposed to allow presidents at the end of their second term to preserve their legacy by proposing amendments to the constitution, which will be voted on as they leave office and then again in a referendum four years later. ‘During the interim, the amendment package would be exposed to countless conversations at work, at home, and in civil society.’ I’m not sure how this fits with the concern about Supreme Court appointments and razor-thin margins of confirmation. I can’t really figure out why, four hundred pages in, we have to entertain this proposal at all: Ackerman admits he has no great investment in it, and it has nothing in common with the substance or spirit of the rest of the book.

What is most valuable in Revolutionary Constitutions is the sense of drama and detail in the history of constitutional construction. In a speech in London in 1997, de Klerk said that the South African process was ‘rather like paddling a canoe into a long stretch of dangerous rapids. You may start the process and determine the initial direction. However, after that the canoe is seized by enormous and often uncontrollable forces. All that the canoeist can do is to maintain his balance, avoid the rocks and steer as best he can – and right the canoe if it capsizes.’ Ackerman has charted the rapids, and he shows who else held a paddle and who fell overboard in the stream of South African constitutional politics. He has done the same for the rough waters of constitutional politics in France, Poland, India, Israel and Italy. That’s a considerable achievement, and his book is worth reading. It doesn’t need to be capped by a Popular Sovereignty Initiative.