Constitutional Imagination Research Articles

The Privacy–Equality Synthesis: Framing Reproductive Rights in India

Abstract Reproductive rights are typically framed as engaging one’s constitutional right to privacy. However, with increasing contestations around the right to privacy, the right to equality has been proposed as an alternate frame. Often, a choice tends to be constructed between the two. Challenging this, some argue for both privacy and equality to be included in framing constitutional reproductive rights. This approach places emphasis on the combined presence of the two rights. Indian constitutional law offers a third, distinct possibility, moving beyond mere rights addition to reading rights in ‘synthesis’. The synthesis pays close attention to the site of dynamic rights interaction, highlighting the effects of the rights on one another. This method of rights analysis, and its latent potential, remains dormant within constitutional doctrine in India. Resurrecting it, and studying examples of abortion and maternal mortality, I frame reproductive rights through the synthesis between privacy and equality. In functioning as a magnifier, a catalyst and a backstop, the synthesis alters the constitutional imagination of reproductive rights in India while, simultaneously, advancing an insightful paradigm for constitutional reproductive rights globally and rights analyses generally.

Transitory Imaginaries in Central and Eastern Europe: Reconsidering Constitutional Tradition and Constitutional Transition from Symbolic-Imaginary Perspective

Abstract This paper explores the transitory imaginaries in the semi-permanent constitutional polytransition in the Central and Eastern European region. It is centered on the novel concept of transitory imaginaries. This concept serves as a tool for combined socio-legal, comparative, and semiotic approach to constitutional transitions. The paper demonstrates the deep conceptual and pragmatic links between constitutional transitology, memory politics, and identity politics. It exposes the role of the forms of symbolic-imaginary constitutionalism for shaping and understanding of constitutional transitions and polytransitions. The paper shows the importance of constitutional imagination for collective symbolic-imaginary sublimation of constitutional transition and the bridging role of constitutional imaginaries that are stretched between the constitutional past, the constitutional present, and the constitutional future. In that regard, the paper explores the different ways for imagining the constitutional past and constitutional future and offers an outline of the main imaginaries in serving that purpose. More precisely, the paper analyses nationalist transitory imaginaries, universalist transitory imaginaries, and prospective transitional imaginaries.

Folk Constitutionalism, or Why it Matters How Ordinary People Think about the Constitution

ABSTRACT A truly inclusive democratic politics must be understandable, or cognitively tractable, for ordinary people busy with the rest of their lives. This extends not only to everyday politics and policy, but to constitutional politics as well—non-specialist democratic citizens should be able to grasp the fundamental law that governs them and imagine their own role in shaping it as political agents. Yet these requirements raise a difficulty: in many countries, including the United States, constitutions are treated as the exclusive domain of lawyers and judges. As a result, constitutional matters are typically discussed using legalistic jargon that is inscrutable even to non-specialist lawyers, let alone ordinary citizens. How then can constitutional politics be made legible to ordinary citizens? In this essay, I argue this challenge is partly one of political ideas—specifically, the ideas ordinary citizens use to think about their constitutions, or their folk constitutionalism. This may sound strange because insofar as constitutions are treated as lawyers’ exclusive turf, the problem may seem to be one of practice, not merely ideas. But popular practices of what scholars like John Finn and Elizabeth Beaumont call popular or civic constitutionalism involve citizens and social movements in transforming constitutions. These transformations often occur behind the backs of everyone involved, as new frames and understandings come to gradually transmute constitutional meaning, which in turn pervades the public political culture and reshapes the public’s constitutional imagination. I suggest we need ideas that more closely reflect what democratic citizens already do in democratic constitutional politics, so that they can do it more self-consciously and dispel the impression of an anti-democratic lack of control that recent constitutional innovations reveal to be illusory. I explore the utility of ideas of unwrittenness and functional multi-textuality to the end of a folk constitutionalism appropriate for democracy.

Foreword: Expanding Our Constitutional Imagination

Foreword: Expanding Our Constitutional Imagination

The Chilean Constitutional Convention: An Exercise for the Pluriverse

Abstract Neoliberal principles were codified in a constitution and implemented during a right-wing military dictatorship (1973–1990) in Chile producing important social inequalities, as well as cultural and ecological destruction. Resistance against the arrangements inherited from that period and deepened thereafter has been paramount to recent politics. In October 2019, considerable street protests were institutionally channeled into a constitutional process where a referendum was mandated to replace the dictatorship’s constitution. There were two attempts to write a new charter: one under a Constitutional Convention that took a decolonial character, and a second one dominated by a far-right council. Drawing on Loughlin’s “constitutional imagination,” the article poses that the Convention was a world-making exercise where social movements, independent candidates, Indigenous representatives, and their allies engaged in efforts for designing a pluriverse where many worlds could fit. I claim the Convention was a space where utopia and ideology met allowing for different worlds to work together for the first time in the political arena creating an incipient intercultural politics. As a text with world-making capacity, the draft from the Convention, although rejected in 2022, materializes a process from which stronger intersectional solidarity among feminist, Indigenous, and ecological movements should be forged.

Publius’ Proleptic Constitution

Even as The Federalist is frequently read to illuminate the origins of the American constitutional order, it advances a powerful account of the political future to be created and encountered by the polity the Constitution would found. Central to this account is a proleptic mode of analysis used to anticipate probable political developments and future patterns of constitutional politics, depict their systemic consequences, and identify how those consequences would feed back into the political system. Publius’ proleptic analyses comprise a descriptive theory of constitutional development according to which success on the terms stipulated—namely, the realization of a stable and well-administered constitutional union—would both bolster the new national government and supply the conditions for the expansion of its authority. Together, The Federalist’s proleptic analyses and the developmental theory they comprise disclose a dynamic constitutional imagination characterized by the changeability of authority relations.

CONSTITUTIONALITY REVIEW OF INDONESIAN CONSTITUTIONAL AMENDMENTS: HISTORY AND FUTURE

This article intends to describe the constitutional basis for the importance of mechanism for reviewing the constitutionality of constitutional amendments in Indonesia. This is based on: first, the existence of provisions both implicitly and explicitly regarding the limitations of constitutional amendments in the Indonesian Constitution, both contained in the Preamble which includes Pancasila as a philoshopie grondslag, the ideals of the state which is also a constitutional imagination, as well as in the body norms of the Indonesian Constitution as contained in Article 37 paragraph (5). Second, the history of amendments to the Indonesian constitution, which has gone through incidents of distorted constitutional amendments which were marked by the dissolution of the Constitutional Assembly as well as transition to the Indonesian Constitution by the President, which is not actually within his authority. The channel for reviewing the constitutionality of amendments to the Indonesian constitution in the future is required by adding this authority to the Constitutional Court, so that the Constitutional Court does not merely serve as a guardian of the constitution an sich, but also becomes a guardian of constitutional identity and the basic structure of the constitution so that it is not not removed and damaged by pragmatic and distorted constitutional amendments.

Towards a constitutional theory of money: opening Europe’s money up to public discourse

AbstractStefan Eich’s The Currency of Politics reconstructs and contextualises the monetary understanding of some of the most renowned political thinkers in history. By contextualising each author’s conceptualisation (subjective perception) against their respective contemporary monetary frameworks (objective institutional dimension), Eich elaborates a narrative composed of cumulative layers leading to a double conclusion: that money is political at its core, and that current policies are actively de-politicizing money. These relevant findings are the point of departure of a reflection on the role that law, and constitutional theory in particular, must play in the configuration of Europe’s common currency to overcome some of the most acute difficulties the process of integration is currently experiencing. If the triad law, money and public discourse is supposed to articulate social life in the polity, European monetary integration has neutralised them by neglecting the relevance of one of their key features: civic reciprocity. Reactivating the three mechanisms of social integration requires an exercise of constitutional imagination able to integrate interdisciplinary knowledge about money within an institutional framework able to prevent the concentration of unlimited power in unaccountable institutions and to promote and fully exploit the democratic potential of money.

Constitutional Imagination Between the Force of Images and the Power of Names

Abstract Irrespective of the growing awareness of the importance of imagination, those interested in imagination as an activity are bound to be disappointed by the lack of the actionable advice on how to actually engage in the activity of imagining in a more conscious and, hopefully productive manner. While I am still convinced that the study of constitutional imagination won’t get very far without a more systematic and comprehensive speculation on the features of imagination in action, in the time that has passed since the publication of my book I also came to realize that such an endevour, must take into account the aspects of constitutional imagination which are specific both to the forms that mediate it, as well as to the formats and formulations, on which constitutional scholars rely on in communicating the content of their mental images. With this in mind, I approach the highly stimulating comments of my four colleagues below.

Between Globes and Cones

Abstracts Increasingly preoccupied with the imaginative dimension of contemporary constitutionalism its theorists are yet to offer an analytically sophisticated, conceptually illuminating, and practically useful account of constitutional imagination – not as a historical phenomenon, but as an ongoing, professional activity. The aim of this essay is to contribute to this objective by exploring how theoretical definitions, observations, figurations, representations, narrations, justifications, and aspirations shape – and may yet to shape – our understandings of constitutionalism, constitution-making, constitutional authorship, constituent power, democratic decision-making, sovereign will, institutional hierarchy, legitimate authority, and the role of constitutional norms in political contestation around the world.

Authoritarian liberalism and the transformation of modern europe: Rejoinder

AbstractThis response to critics gives me the opportunity to develop some aspects of the argument in Authoritarian Liberalism and the Transformation of Modern Europe. I do so by foregrounding the concept of political freedom, articulated by Franz Neumann. Authoritarian liberalism operates by suppressing political freedom and democracy. First making its mark in late Weimar, authoritarian liberalism is constructed in a more passive fashion in the decades after the Second Word War. Although it is contested by social movements in the 1960’s and 70’s, it is ultimately reinforced in the turn to neoliberalism. This reaches its apogee at the Treaty of Maastricht, with the de-politicization of economic and monetary union and the deepening and widening of the European Union. German ordoliberalism, which functions as an ideological support to authoritarian liberalism, is instructive, but is only a part of this story; Germany is at most ‘semi-hegemonic’ in Europe. Authoritarian liberalism operates instead through limiting the constitutional imagination in all member states of the Union. I end with some reflections on Walter Benjamin, whose philosophy of history inspired the cover of the book.

Parties, Democracy, and the Ideal of Anti-factionalism: Past Anxieties and Present Challenges

AbstractThis essay weaves together the history of political and legal thought, contemporary democratic theory, and recent debates in legal scholarship to examine the ambivalent relationship between political parties and democracy. Celebrated as a structural necessity for the mechanics of democratic government, political parties are also handled with suspicion for their hybrid nature—neither entirely public nor completely private—and for their always-possible regression into factions. Anti-factionalism, I show, has been a powerful ideal driving constitutional imagination and practice over the centuries, from antiquity (with its emphasis on parts and its horror over factions), to the age of democratic revolutions (with its signature anxieties about divisions), up through the present. However, this long historical process has not extinguished the long-lived concern with the nature and implications of party spirit, nor has it made party democracy completely safe from revamped forms of factionalism. Two manifestations of factional politics stand out in the contemporary political landscape: authoritarian regime changes and populist constitutionalism. While the former is easy to diagnose but hard to prevent, the latter exemplifies a torsion of the constitutional and democratic imagination from within. Despite their differences, both scenarios remind us that constitutions need to envision mechanisms to prevent parties from undermining the liberal democratic order they have been designed to serve. At the same time, they call for renewed attention to the study of parties in the domains of democratic theory and constitutional scholarship.

The Ghost of John Hart Ely

The ghost of John Hart Ely haunts the American liberal constitutional imagination. In spite of the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of minorities and the policing of the democratic process remain second nature. Indeed, they have been credible enough among liberals to underwrite an anxious or even hostile attitude toward judicial reform. In order to exorcise Ely’s ghost and lay it to rest, this Article challenges his twin conjectures. First, the Article argues that there is little historical and no theoretical basis for the belief that courts will outperform legislatures in overcoming even deeply entrenched historic discrimination against deserving minorities — even as courts act to entrench the power of undeserving ones, like the powerful and wealthy today. Second, the Article contends that Ely’s almost complete failure to anticipate the inaction of the judiciary in policing the democratic process — except when judges assist their own ideological allies — is devastating for his theory, which depended precisely upon an empirical prediction. Ely’s conjecture about the comparative superiority of judges in policing the democratic process has proved untrue because he ignored ideological affiliation (focusing exclusively on personal self-interest) in supposing that, with their independence and life tenure, judges are less likely to act in self-dealing fashion than politicians. And the deepest reason for the ideological affiliation of judges, who often exacerbate what many take to be the worst pathologies of democratic exclusion, is that identifying what arrangements count as more rather than less democratic is itself a matter of intense ideological division. If Ely’s two conjectures fail, nothing remains to support the conclusion that judges deserve excess countermajoritarian power, leaving democracy’s shortcomings to be remedied within democratic politics — which is, in turn, the most desirable future of liberal constitutionalism.

The city in the constitutional imagination

This essay reviews Ran Hirschl’s City, State: Constitutionalism and the Megacity, a study of ‘the great constitutional silence concerning one of the most significant phenomena of our time: urban agglomeration and the rise of megacities’ and which maintains that the solution to contemporary urban problems crucially depends on a ‘constitutional emancipation’ of the city. The essay argues that Hirschl is unable to deliver on his major claim. Launching his thesis on a skewed account of the development of the political role of the city, a one-sided presentation of the constitutional order of the modern state, and a failure to appreciate the impact of urbanization on the city’s standing as a unit of government, Hirschl ignores the work of public lawyers on the challenges of metropolitan government and argues, unconvincingly, that these challenges can be resolved once we turn to the abstractions of constitutional theory.

The Refugees We Are: Solidarity, Asylum, and Critique in the European Constitutional Imagination

AbstractThis Article aims to reimagine post-national legal solidarity. It does so by bringing debates over Habermasian constitutional theory to bear on the evolving use of mutual recognition and mutual trust in the EU’s Area of Freedom, Security, and Justice (AFSJ), particularly in the context of European asylum law and reforms to the Dublin Regulation. Insofar as critiques of Habermasian “constitutional patriotism” apply to the principle of mutual trust, the Article suggests why post-national solidarity requires fallibilism and dynamic responsiveness that exceed formalized rules of forbearance and respect.On this revised view, legal solidarity guarantees a particular form of adjudication through which individual litigants in a particular case challenge the transnational structural conditions that give rise to individual harm. Because it acknowledges that violations of individual rights are always potentially or in part the result of a collective systemic failure, this conception of solidarity restores meaning to the transformative “transfer” of sovereignty that post-national law had promised. In the field of asylum law, I detail how this application of solidarity would offer a much-needed corrective to structural imbalances in the existing Dublin regime. I conclude with reflections on the principle’s application in additional fields of EU law, as well.

The European Union as ‘Militant Democracy’?

In response to the rise of authoritarianism in Poland and Hungary, several prominent scholars have called upon the EU to intervene in order to protect its constitutional values. One of the strongest albeit controversial arguments in favour of an intervention is that the EU is a form of transnational ‘militant democracy’. This chapter partly agrees with this assessment. The post-WWII European ‘constitutional imagination’ is shaped by the interwar collapse of the European legal and political order. This led to the development of a new form of post-fascist constitutionalism founded upon a ‘fear of the people’. Within post-fascist constitutionalism, ‘Europe’ promises to save the European peoples from themselves. Nevertheless, this type of constitutionalism is not dominant in all the Member States. At least two other varieties of constitutionalism influence the EU Member States – ‘evolutionary constitutionalism’ and ‘post-communist constitutionalism’ – both of which have an ambiguous, yet intimate, relationship to the project of European integration.

Constitutional Patriotism as Europe’s Public Philosophy? On the Responsiveness of Post-National Law

This paper scrutinizes Jurgen Habermas's concept of constitutional patriotism—and its basis in his discourse theory of democracy and law—as the substance of a European public philosophy. Drawing on critical theorists' reception of the concept and Habermas's own contemporary writings on Europe's crisis, I reconstruct constitutional patriotism from the analytic perspective of ‘constitutional imaginaries’. A constitutional imaginary emphasizes the relation of law to the broader societal and political meanings that create and interpret it from outside formal legal institutions. This perspective ‘thickens’ our understanding of the meaning of law as an object of public commitment, as well as of the processes through which this meaning changes (constitutional politics). The paper then details the consequences of this shift for the work of the contemporary European judiciary and its constitutional discourse. In the first instance, analysis of constitutional imaginaries reveals the extent to which civic attachment to constitutional law is oriented not merely to a legal principle simpliciter but also to the historical settlement of political conflict the principle reflects. This suggests that the plurality of constitutional imaginaries in the European legal space creates additional difficulties for inspiring civic attachments post-nationally, a problem to which European judiciaries have heretofore been unresponsive. Second, an understanding of Habermas’s work in light of constitutional imaginaries opens new avenues for rethinking the interpretive and structural tasks to which Europe’s juridical institutions should be directed. In particular, the chapter highlights new forms of proceduralism to be recovered in constitutional discourse in order to establish a reflexivity of constitutional imagination adequate to post-national politics.

Post-humanism Approaches in the Constitutional Theory with the Development of Science and Technology

과학 기술의 발달과 함께 헌법학은 국가와 사람, 사람 사이를 넘어 사물과 인간, 그리고 심지어 사물(thing) 사이의 관계에 대하여 말해야 하는 처지가 되었다. 이러한 맥락에서 본 논문은 인본주의(humanism)에 기반을 둔 헌법학의 성과와 한계를 짚어 보고 탈인간중심주의(post-humanism) 헌법학의 가능성을 모색해 보고자 한다. 법인과 정당 그리고 국가 같은 비인간(non-human) 조직의 법적 수용에서 보듯이 근대 헌법 이론 안에 이미 탈인간중심주의 요소가 존재하고 있음을 밝히고 탈인간중심주의가 인간에게 가지는 의미에 대하여 고민해 본다. 그리고 사회적 체계이론(social systems theory)과 행위자-네트워크 이론(Actor- Network Theory) 등의 도움을 받아 법인과 정당에 적용되었던 인격화(personification) 논리가 인공지능, 바이러스, 동물과 같이 새롭게 발견되는 비인간 사물에도 적용할 수 있음을 보여주고자 하였다. 그러나 이 논문은 사물 인격화의 양가적 특성에 주목한다. 사물의 인격화는 기능적으로 분화된 사회 체계 강화에 이바지하여 물화(reification)에 대하여 체계의 자율성을 방어하는 기능도 하지만, 거꾸로 인간 소외를 초래하는 부작용을 낳을 수도 있다. 이때 헌법학은 헌법적 상상력을 발휘해 사물 인격화의 방법과 정도를 정하는 상위 규범으로 헌법과 헌법이론을 사용할 수 있다. 먼저 이론적 차원에서 자율적 사회 영역의 규범 체계를 설계하고 운영하는 과정에서 근대적 정치 헌법의 이론과 실정 헌법 규정 및 체계를 하나의 이념 모델로 수용할 수 있다. 여기에는 이론적 상상력이 필요하다. 다음으로 사회 영역의 규제가 국가법 체계와 결합해야 할 때 실정 헌법 규정과 법리가 직간접적 효력을 가지고 적용될 수 있다. 이때 헌법 실무는 실정 헌법의 제약 조건 아래에서 규제 목표를 최적화하여 달성하기 위한 전략적 상상력을 발휘해야 한다.With the development of science and technology, constitutional scholarship now has to address the traditional relationship between things and humans, and even between things and things, beyond the relationship between the state and people or between private persons. In this context, this paper will examine the achievements and limitations of constitutional scholarship based on humanism and explore the possibility of post-humanist approaches. Considering the legal acceptance of non-human organisations such as corporations, political parties and the state, this paper recognises the notable prevalence of post-humanist approaches in modern constitutional theory. Further, this paper considers the meaningful implications of post-humanism for humans. And with the help of social systems theory and actor-network theory, it shows that the personification applied to corporations and political parties was extended to newly discovered non-human things such as artificial intelligence, viruses and animals. Indeed, as the personification of things also contributes to strengthening the functionally differentiated societal system, such personification could also defend humans against the increasing forces of de-differentiation. But in contrast, personification can also contribute to human alienation. Given the ambivalent effects of the personification, the constitution and the constitutional theory can function as a set of higher normative standards that determines the method and degree of the personification of things through constitutional imagination. First, on the theoretical level, the personification in the autonomous social spheres considers theoretical achievements of the modern political constitution as reference points for designing the regulations. Next, when regulations in the social sphere should be combined with the national legal system at the practical level, constitutional texts and doctrines can be applied with direct or indirect effects. When applying the constitutions directly, constitutional lawyers should exercise their strategic imagination to achieve regulatory goals under the constraints of the constitution.

The Shifting Sands of Citizenship: Dispossessions, Constitutional Ruptures and Borderlands*

This article looks at dispossession through four trajectories—segregation/‘untouchables’; eviction/‘encroachers’; de-citizenisation/‘illegal interlopers’; occupation/ ‘anti-nationals’—each of which destabilise the foundational basis of citizenship, and contain gendered reverberations. Violence and structural inequalities lie at the core of state practice, temper constitutional prerogatives and fuel dispossession. Impunity lies at the heart of these processes. Each of these four methods speak to a historical specificity, have distinct consequences and afterlives, different affects and engender distinct modes of resistance. The articulation of the basic idea of dispossession in these terms I argue is itself recall of the tremendous corpus of writing from the borderlands and recall of border imaginings that help us make meaning of territories by dispossession. The four-pronged rupture of constitution-speak jeopardises the constitutional imagination of the nation and affects the very claim to citizenship in the borderlands as set out within the contours the constitution.

Constitutions and the Metropolis

Extensive urbanization and the consequent rise of megacities are among the most significant demographic phenomena of our time. Our constitutional institutions and constitutional imagination, however, have not even begun to catch up with the new reality. In this article, I address four dimensions of the great constitutional silence concerning the metropolis: ( a) the tremendous interest in cities throughout much of the social sciences, as contrasted with the meager attention to the subject in constitutional theory and practice; ( b) the right to the city in theory and practice; ( c) a brief account of what national constitutions actually say about cities, and more significantly what they do not; and ( d) the dominant statist stance embedded in national constitutional orders, in particular as it addresses the sovereignty and spatial governance of the polity, as a main explanatory factor for the lack of vibrant constitutional discourse concerning urbanization in general and the metropolis in particular.