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The Constitutional Theatre

2002, Res Publica

Constitutionalism is a typically modernist project in that it seeks to dictate social order by means of institutional design. This project, however, fails in two ways. Empirically, constitutionalism is confronted with the fact that constitutions have limited control over their social environment. Epistemologically, constitutionalism has great difficulty in finding a convincing foundational relation between abstract constitutional provisions and constitutional norms for concrete situations. On the basis of this poor record, it is hard to comprehend how constitutionalism remains such an influential factor in our polity. This article tries to explain our adherence to the philosophy of constitutional ordering by analysing its function in constitutional discourse.

OLAF TANS THE CONSTITUTIONAL THEATRE ⋆ ABSTRACT. Constitutionalism is a typically modernist project in that it seeks to dictate social order by means of institutional design. This project, however, fails in two ways. Empirically, constitutionalism is confronted with the fact that constitutions have limited control over their social environment. Epistemologically, constitutionalism has great difficulty in finding a convincing foundational relation between abstract constitutional provisions and constitutional norms for concrete situations. On the basis of this poor record, it is hard to comprehend how constitutionalism remains such an influential factor in our polity. This article tries to explain our adherence to the philosophy of constitutional ordering by analysing its function in constitutional discourse. KEY WORDS: constitutionalism, constructivism, discourse, Dworkin, epistemological foundationalism, modernism I NTRODUCTION In this article I try to explain why we keep investing in a project that does not work. I shall argue that constitutionalism generally fails in its attempt to control political power on the basis of institutional designs called “constitutions”, and that it is thus hard to explain why constitutionalism retains its central position in political and legal thought. One might easily conclude that it presents yet another form of “institutional optimism” that was brought about by modernist thinking and that can no longer be taken seriously. If one takes stock of constitutionalism’s aspirations and how they fail to be realized, one might even be tempted to consider the postmodernist position that such projects are “metanarratives” that, while purporting to invoke our loyalty to the community, do not relate to its history or its future.1 My aim, however, is to give this debate a more socially realistic direction. For it is important to stress that, however unconvincing constitutionalism may be in its attempt to establish order on the basis of constitutions, this has not been an impediment to its popularity. Since the seventeenth and eighteenth centuries, constitutionalism has been ⋆ I would like to thank Dick Ruiter and Res Publica’s anonymous referees for their comments on this article. 1 R. Rorty, Objectivism, Relativism, and Truth (Cambridge: Cambridge University Press, 1991), 199. Res Publica 8: 231–248, 2002. © 2002 Kluwer Law International. Printed in the Netherlands. 232 OLAF TANS a subject of ongoing public debate, inspiring the design and redesign of actual constitutions. This is to say that, apparently, societies are inclined to adhere to the philosophy of constitutional ordering regardless of its weaknesses and for – again apparently – strong reasons. Rather than debunking constitutionalism, therefore, I would like to explain the fact that we appear to be drawn to constitutionalism in spite of its flaws. In this way I hope to contribute to our understanding of the social function of constitutional thinking and practices. In looking for an explanation, I take the following route. First, I shall try to get to the essence of constitutionalism, a typically modernist project that seeks to establish social order through central regulation. As I shall argue, it is thus essentially based on an epistemological foundationalism: constitutions serve as objects that can be referred to in order to justify concrete normative statements. Second, I shall try to get to the essence of constitutionalism’s failure, namely the fact that its foundational epistemology is unconvincing in practice: it appears to be difficult, if not impossible, to use constitutions as objects to refer to in order to justify concrete normative statements. Third, I shall argue that, although this epistemological foundationalism does not in fact work, it seems to have an important communicative function. In constitutional debate, we get approval of constitutional claims if they are presented as consequences of existing constitutions. By using the language of epistemological foundationalism we suggest that effect is given to a pre-existing design, and thereby legitimise our statements. I shall argue that, while the work of Ronald Dworkin gives important clues to understanding this seemingly absurd practice of make-believe, it fails to draw the conclusions which follow from it, and that this deficiency may be made good by the application of discourse theory. T HE M ODERN I DEA OF C ONSTITUTIONALISM Although there is a great variety of constitutional ideas, modern constitutionalism is based on the fundamental idea that the exercise of political power must be controlled by means of legal institutions.2 According to 2 This position is taken in J.E. Lane, Constitutions and Political Theory (Manchester: Manchester University Press, 1996), 25; S.L. Elkin, “Constitutionalism: Old and New”, in S.L. Elkin & K.E. Soltan, eds, A New Constitutionalism: Designing Political Institutions for a Good Society (Chicago: University of Chicago Press, 1993), 20–37, pp. 21, 32; D. Castiglione, “The Political Theory of the Constitution”, in R. Bellamy & D. Castiglione, eds, Constitutionalism in Transformation: European and Theoretical Perspectives (Oxford: Blackwell Publishers, 1996), 5–23, p. 9; and R. Kay, “American Constitutionalism”, in THE CONSTITUTIONAL THEATRE 233 Charles McIlwain, this idea is the result of a historical development.3 In Roman times, for instance, the idea of legal control of political power was unknown: the state was already defined in legal terms but not to the extent that the law grew to be something apart from the state and thus able to provide protection against it.4 In the Middle Ages attempts were made to elevate the law to a more autonomous position, as is illustrated by the development of the judiciary in England.5 In the course of time, the English courts emancipated themselves from the executive by defining the common law as an independent phenomenon. Legal limitation of power was thus established in the concrete struggle of judges to decide on individual rights, a struggle that resulted in a victory of the “rule of law”.6 In the modern era, this development has reached the point where constitutions are conceived of as the basis of efficacious legal systems (whether written or unwritten). They are treated as frameworks that impose order by making possible the production of concrete norms for particular cases. Hence the modern idea of constitutionalism embraces a specific ordering concept, one that is best characterized by saying that it takes a so-called “designer’s perspective”.7 The constitutional domain is divided into a context of institutional design on the one hand and of realisation on the other. The emergence of constitutional order is discussed mainly in the context of design, under the assumption that the design will be reproduced in reality. In this way, constitutionalism can be regarded as a typical example of social engineering, a manifestation, furthermore, of what Max Weber has called a “pervasive rationalization” of social life, in that the order of a state is fixed in advance.8 In brief, modern constitutionalism is a form of “institutional optimism”, resting on the idea that an institutional design is fitted to produce a corresponding social order. This perspective has a crucial epistemic implication. Because we conceive of them as comprehensive designs, constitutions are considered L. Alexander, ed., Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998), 16–63, p. 16. 3 C.H. McIlwain, Constitutionalism, Ancient and Modern (Ithaca, New York: Cornell University Press, 1947). 4 A. d’Entrèves, The Notion of the State: An Introduction to Political Theory (Oxford: Clarendon Press, 1967), 75–81; McIlwain, op. cit., 57. 5 Ibid., 67–92. 6 This is why Dicey states that “Our constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law.” – A.V. Dicey, Introduction to the Study of the Law of the Constitution, eighth edition (Indianapolis: Liberty Fund, 1982) (reprinted from the 1915 edition), 116. 7 K.E. Soltan, “What Is the New Constitutionalism?”, in Elkin & Soltan, op. cit., 3–19, p. 4. 8 M. Weber, Economy and Society (New York: Bedminster Press, 1969). 234 OLAF TANS to be the exclusive sources of what may be called “constitutional knowledge”. Whenever we try to defend a constitutional statement, it has to be presented as following from the constitution; as a concrete manifestation of the abstract design. Murphy and McClendon characterize this as modernist on account of two features.9 First, it is based on “foundationalism”, that is to say, on the assumption that knowledge can be justified only to the extent to which it rests on indubitable grounds. In constitutionalism, this feature is reflected in the fact that constitutions are seen as the necessary and sufficient foundations of constitutional claims. Second, modernist epistemology expects language, unless expressing merely attitudes, to represent ideas or states of affairs. In constitutionalism, this feature is reflected in the fact that we expect constitutional language to represent the constitution, to show that claims spring from this exclusive source of constitutional knowledge and thus relate to the original design. In sum, we treat constitutions as if they were pre-existing institutional arrangements which can be known and reproduced linguistically. One might object that this is a quite narrow view of modern constitutionalism, and that there are other ways of engaging in constitutional thought. Certainly, present-day constitutional thought can (and does) escape from the designer’s perspective, but only so long as it remains theoretical. As soon as it becomes practical, however, it cannot avoid accepting the epistemic premises of modernism and resorting to the ordering concept outlined above. Consider for example Kenneth Starr’s plea for the impeachment of President Bill Clinton: it was probably driven by moral or political reasons, but that is not how it was presented. Rather, Starr appealed to the constitution of the United States of America to justify his plea, using the epistemic assumption underlying the designer’s perspective by referring to it as if it were an object existing in the world, and using language that seemed to refer to it as such, for example when he indicated the second article of the constitution as the ground of his claim. Thus, he treated the constitution as a linguistically expressible design imposing a certain real order. If he had failed to do so, and instead made explicit the real reasons driving his plea, it would doubtless have been put aside as irrational, political, emotional, or at least legally irrelevant. 9 N. Murphy and J. McClendon, “Distinguishing Modern and Postmodern Theologies”, Modern Theology 5 (1989), 191–214; N. Murphy, “Scientific Realism and Postmodern Philosophy”, The British Journal for the Philosophy of Science 41 (1990), 291–303. See also D. Patterson, Law and Truth (Oxford: Oxford University Press, 1996), 151–79. THE CONSTITUTIONAL THEATRE 235 C ONSTITUTIONALISM ’ S D EFICIENCY At the same time, however, it must be conceded that attempts to restrain the exercise of political power on the basis of an institutional design are generally bound to fail. For constitutionalism is both empirically and epistemologically defective. First, constitutionalism fails to secure the sort of control over political power that it promises. Its designs have proven to be incapable of bringing about a matching social order. American constitutionalism, for example, is certainly influential, but American society does not take its shape from any clearcut institutional arrangement named by the term “Constitution”. Rather, it is the ongoing process of interpreting this text, in itself vague and limited in applicability, that has in fact been influential. In numerous cases, constitutional provisions have had no effect at all: consider human rights in developing countries, which are sometimes simultaneously protected by black-letter law and violated in real life; or certain post-communist states, where democratic constitutions are said to have masked rather than changed authoritarian political cultures.10 Lane gives an impressive account of this limited effect of constitutionalism, distinguishing two constitutional contexts: a formal context in which the constitution is understood in legal terms, and a substantive context in which it is understood as a real regime. In an ideal world, he argues, there would be a one-toone correspondence between these two contexts, but “[I]n reality there is always more or less mismatch between the formal and the substantive constitution.”11 Second, constitutionalism does not offer a convincing foundation for constitutional knowledge on account of its failing to determine the proper line of constitutional reasoning. For any attempt to ground constitutional statements can be contested by asking for a further justification, thereby creating an infinite justificatory regress. If Kenneth Starr contends that an impeachment-procedure should be implemented against Bill Clinton under the second article of the Constitution, one can ask why. If the prosecutor answers that the written constitution is the highest authority of the state, one can ask why. If the prosecutor answers that the written constitution is the will of the American people, as enacted by its framers, one can ask why we are bound by this will, and how the Constitution 10 I. Pogany, “The Constitution in Post-Communist Societies”, in Bellamy & Castiglione, op. cit., 156–79, p. 159: the author cites Slovakia, Romania and many of the post-Soviet states. See also M. Krygier, “Is There Constitutionalism after Communism? Institutional Optimism, Cultural Pessimism and the Rule of Law”, International Journal of Sociology, 26 (1996–7), 17–47. 11 Lane, op. cit., 11. 236 OLAF TANS articulates it. If the prosecutor answers that this is the way Americans conceptualise their constitutional order, one can ask him to disclose his entitlement to speak on behalf of all Americans. In short, we witness the sort of interpretive manoeuvres that characterise the actual process of constitutional decision-making.12 The point is that, within this process, one can (and generally does) ask indefinitely for further justification, so that constitutional statements are never ultimately founded. Moreover, it is to be doubted whether actual constitutional justification – since it regresses continually – really keeps drawing on the original source of constitutional knowledge. One might argue no less plausibly that constitutional justification is a method of creating new constitutional designs. Although constitutional reasoning generally starts with statements about the meanings of constitutional provisions and the qualification of facts, it smoothly moves on to presenting all sorts of constitutional theories, sociological observations and ethical arguments, as well as structural and prudential considerations.13 In practice, participants thus enter an infinite domain of pertinent constitutional reasons. Thus the modern idea of constitutionalism is frustrated by the fact that any account of constitutional justification as applying or interpreting a pre-existing constitution is highly questionable: one may as well argue that constitutions spring from the creative minds of those who act or argue in their names. The deficiency of constitutionalism thus consists in the fact that its ordering-concept does not work, either empirically or theoretically. It aims to establish social order by designing and effectuating constitutions, but these epistemologically dubious frameworks prove also to be ineffective in practice. Ironically, this twin deficiency is especially manifest in the very circumstances that gave rise to constitutional ambitions, namely political crises. When Kenneth Starr wanted to impeach President Clinton for wrongful private conduct, for instance, the constitution seemed to pose questions rather than answering them. From 1976 to 1987, Great Britain adopted several anti-terrorism and emergency Acts, and acted upon them, whereas the extent to which this legislation comported with constitutional principles remained a “subtle and complex question”.14 When the German 12 See for instance P. Brest, Processes of Constitutional Decisionmaking: Cases and Materials (Boston: Little, Brown and Company, 1975). 13 Constitutional arguments are analysed in P. Bobbitt, Constitutional Fate: A Theory of the Constitution (Oxford: Oxford University Press, 1982); R.H. Fallon Jr., “A Constructivist Coherence Theory of Constitutional Interpretation”, Harvard Law Review, 100 (1987), 1189–286. 14 I refer to British anti-terrorism legislation regarding Northern Ireland, as analysed in J.E. Finn, Constitutions in Crisis: Political Violence and the Rule of Law (Oxford University Press: New York/Oxford, 1991), 84–134. THE CONSTITUTIONAL THEATRE 237 Bundesverfassungsgericht decided whether or not a parliamentary decision to join the European Union was constitutionally permissible, the judges developed a theory of democracy that is not expressed in the Grundgesetz.15 When the results of the 2001 presidential election became the subject of intense conflict in the USA, even the most cherished constitution remained finally silent. In short, constitutional guidance is given least when needed most. Constitutionalism has produced a paradoxical phenomenon: seeking to constitute political communities by designing their constitutions, it has failed to offer anything which actually serves in practice. One may ask if anything is, or has been, constituted at all. T OWARDS A R EALISTIC ACCOUNT OF C ONSTITUTIONALISM Does this mean that we have to abandon the modern idea of constitutionalism? Must we simply admit that its empirical and epistemological assumptions are wrong and that it is time to come up with improved versions or even successors? In contemporary legal and political theory, the traditional constitutional ordering-concept is indeed being reconsidered. Under the heading “multiculturalism”, for instance, constitutionalism’s deficiency is said to be its inability to cope with diversity and it is argued that modern constitutions are based on a liberal ideology that is intolerant of non-liberal political cultures, so that constitutionalism can never provide a basis for genuine multicultural societies.16 This line of argument may lead to an orderingconcept in which institutional designs are no longer based on unique sets of principles of right order.17 In the “new constitutionalism”, furthermore, constitutions are analysed as so-called “preference formers” rather than as mere instruments, employing an ordering-concept which does not focus on the imposition of substantive norms but which seeks to facilitate and optimise public choice.18 But it is “postmodernism” which finally takes the bull by the horns. According to Rorty, postmodernism is driven by a distrust of the typically modernist concern with ideologies, universal 15 I refer to a decision of the German constitutional court regarding the ratification of the Maastricht Treaty by the German Parliament: BVerfGE 89, 155–213. 16 R.J. Lipkin, “Liberalism and the Possibility of Multicultural Constitutionalism: The Distinction Between Deliberative and Dedicated Cultures”, University of Richmond Law Review, 29 (1995), 1263–325. How, for instance, will we ever be able to give constitutional recognition to cultural phenomena such as women’s circumcision or vendetta? 17 As in J. Tully, Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995). 18 Soltan, op. cit., 14. 238 OLAF TANS values and “truth”.19 In support of its criticism of such a project, postmodernism employs an epistemological argument – simply rejecting as unintelligible any foundationalism – that may not be very constructive but nevertheless presents a serious challenge. Its anti-foundationalism (whether “justified” or not) may as a matter of fact lead to the rejection of any constitutional ordering-concept whatsoever in its denial of the very possibility of constitutional claims, since any such must rest on some epistemological foundation. Constitutionalism is a project that creates an illusion, namely the constitution. Concerning Starr’s plea for the impeachment of President Clinton, a postmodernist might assert that his case was built on, literally, nothing. The President’s behaviour was criticised in statements that refer to an object, the constitution, that we simply cannot know or represent and which, therefore, does not exist. However, such attempts to discredit constitutionalism leave us with the question why we are willing to hold on to the designer’s perspective in spite of being well aware of its inadequacy. Since 1789, when they adopted the Déclaration des Droits de l’Homme et du Citoyen, the French have made several constitutions that aimed – but failed – to determine national order and to rule out chaos. And yet today’s French Republic is taken to be constituted in a written document containing its blueprint. Since 1954, when the US Supreme Court decided Brown v. Board of Education, racial segregation in education was constitutionally forbidden, although it continued to occur in schools.20 Nevertheless, the United States takes pride in seeing itself as the Promised Land of constitutionalism. Since the invention of democracy, finally, there have always been doubts as to whether citizens have any real influence on government. Nevertheless, we do not hesitate to conceive and speak of our political community as a democracy, a constitutional design that gives power to the people. However epistemologically unfounded and unrealistic this may be, it does not keep us from continually using the idea of constitutionalism. More precisely, it does not keep us from writing down constitutions in documents or acknowledging them in some other perceptible form; from making reference to this evidentiary material; from believing that a variety of practices stem from them; from characterizing Western societies by the existence of a constitution; from starting wars and revolutions in their names; or, finally, from prosecuting presidents and deciding elections in their name. We cannot disregard the fact that we show an undaunted adherence to a line of thought that is evidently missing its target. In Durkheim’s terms, 19 R. Rorty, Truth, Politics and Post-modernism (Assen: Van Gorcum & Co., 1997), 26. 20 Brown v. Board of Education, 347 US 483 (1954). THE CONSTITUTIONAL THEATRE 239 one might say that societies have a “collective inclination” towards it, that the modern idea of constitutionalism seems to be favoured and nourished by a social force.21 Rather than criticising its lack of rationality, I suggest that we try to understand this tendency. Why is an ordering-concept that does not work so warmly embraced in practice? What follows is devoted to answering this question on the basis of two assumptions that I take to be entirely reasonable. First, I assume that there must be a strong, social reason for the survival of a line of thought that is in itself unconvincing. Second, I take it that this reason is to be found in practice, that is, in the way we actually use constitutional thought to take decisions in concrete situations. DWORKIN ’ S A MBIVALENCE Some scholars in contemporary legal and political theory are sensitive to the practical impact of constitutionalism. In Law’s Empire, Ronald Dworkin presents his well-known conception of the constitution as an interpretive concept, defending the view that the truth of constitutional propositions is a matter of their making sense in the context of a comprehensive, constructive interpretation of legal practice.22 Dworkin compares the activity of constitutional decision-making to that of contributing a chapter to a chain-novel. In both cases we are bound by an existing storyline and at the same time free to determine how it continues. This leads to complicated interpretive processes in which we understand stories as a whole in order to determine the proper reading of subsequent chapters. Dworkin is of the opinion that a constitutional decisionmaker generates truth on the basis of a sense of constitutional integrity: “[H]e believes that the American Constitution consists in the best available interpretation of American constitutional text and practice as a whole, and his judgement about which interpretation is best is sensitive to the great complexity of political virtues bearing on that issue.”23 Like many contributions to jurisprudence-oriented constitutional theory, this analysis has an undeniably sociological flavour. Dworkin seems to approach constitutionalism from the standpoint of an analytical observer of actual processes 21 E. Durkheim, Suicide: A Study in Sociology (Padstow: The Free Press, 1951), 297– 325. 22 R. Dworkin, Law’s Empire (London: Fontana, 1986), 223: “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice.” 23 Ibid., 398. Dworkin uses the word “integrity” in the sense of completeness. 240 OLAF TANS of reasoning, and the reader may recognize the contours of a discursively constructed constitutional reality. However, Dworkin fails to draw the ultimate conclusions which follow from his analysis. In the end, his sociological perspective is replaced by a more traditional normative institutionalism, for example where he argues in favour of an internal as against an external perspective.24 The internal perspective, as advocated in the theory of law as integrity, addresses the substance of claims – holding for example that slavery is wrong – in the light of constitutional morality. Such a view is defended as being the best interpretation available and on that account the only right one. According to Dworkin, this is not a matter of believing that opinions are ‘really’ (objectively) right, however, but rather a matter of relying on “the soundness of a general interpretive attitude to call into question all possible interpretations of a particular object of interpretation”.25 Argumentation from the internal perspective thus involves the use of a so-called “language of objectivity”: “slavery is ‘really’ or ‘objectively’ wrong, [and] this is not just a matter of opinion . . . it would be true even if I (and everyone else) thought otherwise . . . it gives the ‘right answer’ to the question whether slavery is wrong . . . the contrary answer is not just different but mistaken”.26 By contrast, according to the external perspective we do not defend a particular moral or interpretive claim passionately but are sceptical and disengaged. This is not a matter of believing that it is a mistake to have opinions, but rather a matter of developing metatheory about their epistemic status or classification. We may still hold the view that slavery is wrong, for instance, and give reasons for it, but nonetheless insist that this view and these reasons are “projected upon, not discovered in, reality”.27 According to Dworkin, the external perspective leads nowhere because it does no more than try to reveal the subjectivity behind objectivist language. The external sceptic simply holds that there cannot be right answers in morals or interpretation: people have divergent opinions about justice and we should not pretend that this world is independent of people’s attitudes.28 The outcome is that, because different cultures produce different views, we have to admit that any particular view is to be doubted. But such an approach is no less fruitless, Dworkin argues, because it can neither add to nor subtract from interpretive projects.29 24 Ibid., 78–83. 25 Ibid., 78–9. 26 Ibid., 80. 27 Ibid. 28 Ibid., 83. 29 Ibid., 86. THE CONSTITUTIONAL THEATRE 241 However subjective a particular moral position may be, we cannot but eventually take a stance. From a sociological perspective this is an intriguingly ambivalent argument. On the one hand, Dworkin’s analysis serves to deepen our insight into constitutionalism as a sociological phenomenon. It presents a picture of constitutionalism as a “language-game” in which participants make their claims as if they sprang automatically from some original design that is truthfully expressible in linguistic statements. On the other hand, Dworkin seems to close our eyes where he had just opened them. It may be true that ‘objective’ claims are in fact subjective, but it is useless to realize it.30 It may be true that our traditional beliefs can be proved to be figments of the imagination, but choosing no longer to act on them does not contribute to the type of activity in which we are in fact engaged: moral debate. We are simply being invited to refrain from reflexivity. We may be doing no more than playing a language game, Dworkin appears to be saying, but let us just carry on and play it – for that is the only way to engage in constitutionalism. The line of argument is alluring, but it leads straight back to the paradox of constitutionalism. By assuming that the internal perspective can lead to the best available interpretation, to a ‘right answer’, Dworkin presupposes a constitutional order preceding constitutional decision-making. While he is opposed to the idea of a pre-existing legal constitution – because he perceives the law as an ongoing creative interpretation – he nevertheless embraces the idea of a pre-existing moral constitution. In fact he speaks literally of a “constitutional morality” inherent and expressed in extant legal and political practice and revealed in the process of constitutional decision-making.31 Dworkin thus rekindles the thought of a (moral) design on which we ought to found our constitutional knowledge. His constitutional theory is thus no less unrealistic than the modern idea of constitutionalism: we shall never get to see the moral constitution ‘at work’ as an effective system, and it will prove impossible to find a convincing epistemological foundation for claims on the moral constitution. In short, the notion of law as integrity is yet another foundational effort that has no foundation. 30 Dworkin speaks of a “. . . silly and wasteful preliminary dance of skepticism”: ibid. 31 Ibid., 126. Claims of constitutional right presuppose moral arguments that we, as reasonable agents, can properly judge. This constitutional morality is analysed in N. MacCormick and O. Weinberger, An Institutional Theory of Law. New Approaches to Legal Positivism (Dordrecht: Reidel Publishing Company, 1992), 171–88. 242 OLAF TANS A D ISCOURSE P ERSPECTIVE The point that Dworkin misses is that it is quite possible to take the perspective of external scepticism without undermining constitutional beliefs. Whereas Dworkin contends that this perspective can lead only to a destructive form of relativism, it can lead also to a positive understanding of constitutional thinking and practice. The first step to such an understanding is that we stop evaluating the external perspective in the light of its contribution to the internal perspective – for that is like evaluating a hammer for its fitness to serve as a murder weapon. Just as it is more to the point to judge hammers by their capacity to drive nails, the external perspective ought to be judged on the external knowledge it can help to provide, regardless of the possible impact of this knowledge on the beliefs underlying the internal perspective. Looking at constitutionalism from a genuinely external perspective, as uninvolved researchers, suggests that constitutionalism is best understood as an instantiation of the concept of discourse, that is to say as involving communication about cognitions, by using language, and in a social situation.32 Concerning the first of these characteristics, I have already set out how constitutionalism takes a designer’s perspective on the exercise of political power. This implies that in constitutional discourse cognitions are communicated about the original order, or design, of the state as a political organization. The second characteristic is fairly evident: constitutional knowledge is produced and exchanged by using language (although knowledge can be expressed in other media, it seems reasonable to assume that constitutional knowledge is hardly expressed non-linguistically). As for the third characteristic, the fact that constitutional discourse takes place in a social situation, it may suffice to point out that constitutions are public phenomena: by its very nature, constitutional discourse pertains to a social environment, to the political community as a whole. As uninvolved researchers, we may next observe that constitutional discourse uses an ordering concept that is ineffective, and that constitutional knowledge is often epistemologically unfounded. This is the kind of external scepticism that Dworkin sees as destructive. In the perspective that I am proposing, however, external scepticism does not have to lead to the destruction of constitutional pretensions. As uninvolved researchers, we are not interested in throwing doubt on the designer’s perspective. Rather, we are eager to understand why and how this ordering concept remains in use. The fact that constitutional knowledge looks epistemologically 32 T.A. van Dijk, ed., Discourse as Structure and Process. Discourse Studies: A Multidisciplinary Introduction vol. 1 (London: Sage Publications, 1997). THE CONSTITUTIONAL THEATRE 243 unfounded from the outside offers an incentive for finding an alternative explanation of the production of constitutional knowledge. If constitutional truth is not produced in relation to some constitutional object in the world, then how does it come about? In the discourse perspective I propose, the answer to that question is to be found in social constructivism. On Berger and Luckmann’s account, processes of social construction are based on “institutionalisation”: social knowledge is objectified to the extent that it is experienced as possessing a reality of its own, as “a reality that confronts the individual as an external and coercive fact”.33 Objectified social knowledge can count as existent in a social environment. Epistemologically, this implies that the foundation of knowledge is no longer to be found in objects in the world, but in human experience or belief. Hilary Putnam characterizes this viewpoint by stating that a proposition will be true if “a sufficiently well-placed speaker who used the words in that way would be fully warranted in counting the statement as true of that situation”.34 In other words, truth cannot be defined on the basis of what is, but on the basis of what is accepted as being in a specific context. Quine takes this view to its limit by conceiving of the totality of our knowledge as a ‘man-made fabric’, as a web of beliefs that is continuously rewoven.35 In this way, constitutional knowledge may be seen as part of a highly specialized ‘sub-web’ of beliefs constructed in constitutionalism, and counting as existent in a social environment. According to Berger and Luckmann, social construction may take place in all sorts of social behaviour. It is reasonable, however, to assume that the social construction of constitutional reality takes mainly place in discourse. Füzér seems to take this view when analysing the “construction of constitutional reality in Hungary”.36 He speaks of a process of building an “invisible constitution” as a result of the permanent interpretation and application of the written constitution.37 On this approach, constitutional law is taken to be an inherently textual phenomenon, leaving “a free space 33 L. Berger and T. Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (Harmondsworth: Penguin, 1967), 50–63, p. 55. The authors have in mind primarily the social knowledge of everyday life, for instance the ability to operate in a physical environment or to behave socially, but they also mention more complicated and particular aggregates of knowledge such as the law (166). 34 H. Putnam, Representation and Reality (Cambridge, Mass.: The MIT Press, 1989), 115. See also Patterson, op. cit., 151. 35 W.V.O. Quine, “Two Dogmas of Empiricism”, in his From a Logical Point of View (Cambridge, Mass.: Harvard University Press, 1953), 20–46. See also Rorty, op. cit. 36 K. Füzér, “The Invisible Constitution: The Construction of Constitutional Reality in Hungary”, International Journal of Sociology, 26 (1996–7), 48–65. 37 Ibid., 53, 62. 244 OLAF TANS of meaningful concretization”.38 Applying the constitution is thus a matter of creating it at the same time, in the course of a hermeneutical process resulting in movement to some sort of conclusion. The constitution is basically a construction of meaning, a web of beliefs, woven in countless moments of discourse in which statements are accepted as warranted. As Füzér shows, in constitutional theory discourse theory eventually leads to focussing on the analysis of the practical use of constitutional language. The domain of constitutional discourse will have to be explored and mapped out in order to trace the social (discursive) construction of the constitution. How might the discourse perspective enable us to reconsider the issue of the paradox of constitutionalism? E XPLAINING THE PARADOX OF C ONSTITUTIONALISM How can we explain societies continuing to use an ordering concept that basically does not work? As I have argued, Dworkin initially seems to address this question by analysing constitutional decision-making from the standpoint of an analytical observer, but eventually the problem returns because he presupposes a morality underlying it. One may conclude that Dworkin is interested only in preserving a myth. For my part, I am interested in why the social force behind the modern idea of constitutionalism is apparently strong enough to seduce distinguished scholars. Why do we continue to talk, think and act on the basis of an ordering ideal which we know cannot be realised? Giddens offers a first glimpse of an answer: It should be clear, however, that the tendency of some philosophers to equate reasons with “normative commitments” should be resisted: such commitments comprise only one sector of the rationalization of action. If this is not understood, we fail to understand that norms figure as “factual” boundaries of social life, to which a variety of manipulative attitudes are possible. One aspect of such attitudes, although a relatively superficial one, is to be found in the commonplace observation that the reasons actors offer discursively for what they do may diverge from the rationalization of action as actually involved in the stream of conduct of those actors.39 When engaged in constitutionalism, participants offer discursive reasons related to the rationality of institutional design, and their internal perspective favours adherence to the idea of a pre-fixed constitution which can be used as a foundation for concrete norms in particular situations, 38 Ibid., 51. 39 A. Giddens, The Constitution of Society: Outline of the Theory of Structuration (Berkeley: University of California Press, 1984), 4. THE CONSTITUTIONAL THEATRE 245 and which can result in a social order in accordance with that constitution. This is another way of saying that they are driven to use the language of epistemological foundationalism, portraying the constitution as objectively existent. Interestingly, this use of language is maintained even when well-founded criticism from the external perspective proves it to be unrealistic. As a first step towards an explanation of this paradox, I suggest that we see constitutions as constructions that are treated as if they were objectively existent designs imposing a certain order. Participants in constitutional discourse are thus operating in a system of beliefs without at the same time concerning themselves with the soundness of the beliefs in question. Although these participants offer their reasons following the rationality of institutional design, they are in fact involved in a discourse directed at producing, rather than representing, constitutional knowledge. If they want to contribute to the constitutional web of beliefs, participants have to present their claims in such a way that they become acceptable to others. They are thus implicitly trying to meet the requirements of communicative rationality. In order to present their claims as ‘truthful’ they take on a manipulative attitude, and this has the important consequence that they interact on the assumption that the constitution is an effective design. Dworkin seems to suppose that this assumption must be a real engagement in believing that there are foundational norms, but I would rather speak of a ‘performative’ engagement. Participants may actually believe that constitutionalism is nothing more than a charade, but as long as they participate in constitutional discourse as if they believed that the constitution exists as the foundation of constitutional knowledge, they meet the requirement of communicative rationality. If we are prepared to presume that the constitution is there to be known, we can play the game of constitutional discourse. We thus witness an ordering concept operating in the context of a more encompassing social process, so that it can no longer be taken at face value. That is how constitutionalism can proceed in such a paradoxical manner. Constitutionalism may seem to be about designing institutions to dictate social order, on the basis of a foundationalist epistemology, but in fact it only exploits this idea as a means of communication. The designer’s perspective is a discursive auxiliary construction. A S OCIALLY R EALISTIC ACCOUNT OF C ONSTITUTIONALISM When Kenneth Starr intended to impeach Bill Clinton he claimed that a constitution existed which imposed a certain order. In other words, he 246 OLAF TANS claimed that the truth of the proposition that Bill Clinton ought to be impeached was the inevitable outcome of a line of argument based on a pre-existing constitutional design. It has been argued that such a claim can easily be defeated in anti-foundationalist style: Starr points his finger to an invisible object. Such a claim can also be challenged by drawing attention to the practical results of the modern idea of constitutionalism. What is the sense of making appeal to a pre-existing order when constitutions prove to be unable to secure social order? We are now in a position to gain a better understanding of the phenomenon. First, we have to acknowledge that, because Starr is participating in a communicative process that uses constitutional discourse as a medium, his claim is to be seen as linguistic behaviour governed by communicative rationality. This means that he is concerned primarily with generating acceptance of his claim in a social environment, notably by making use of the institutions and conventions that constitute the legal practice in which he participates. Starr indicates a written rule as the ground of his claim and describes the facts that make this rule applicable. Furthermore, he may employ one of the regular forms of argument or, in a Dworkinian perspective, unfold a narrative in which his legal position is rephrased in moral terms. In short, the prosecutor follows the generally accepted procedure for contributing to the web of constitutional beliefs. Second, we have seen that a communicative process of this kind involves claims presented as being objectively founded, that is to say, it involves claims that seem to be based on the false assumption that they follow from a pre-existing design. However, we can now see these claims in a different light: they are discursive tools used to achieve the general acceptance of certain conclusions. Even when we observe participants expressing their beliefs in the idea of constitutionalism, including its inherent epistemological foundationalism, we must realise that the expression of such a belief is part of a discursive role. Starr is not really trying to limit power on the basis of a pre-existing design, but suggesting to the American people that this is what he is doing because this is what the American people expect him to do. One could say that he thus conforms to another, more fundamental, convention of constitutional discourse, namely that participants must behave as if they were realizing the constitution. In this reflexive perspective, we can also understand Dworkin’s ambivalence. As I have outlined, this author sets out to analyse legal interpretation as a process of communication. He speaks of legal practice as an argumentative phenomenon, one of “actors involved in legal drama”, and of constitutional decision-making as an unfolding political narrative in THE CONSTITUTIONAL THEATRE 247 objectivist language.40 In this respect, Dworkin proves to be sensitive to social reality and prepared to approach normative phenomena from a relatively external viewpoint. However, in the course of his elaboration of the theory of law as integrity, the analysis takes an internal point of view:41 he speaks of “the best available interpretation”, of “integrity as sovereign over law”, and of the fact that “the Constitution is foundational of other law”.42 In brief, the theory takes a designer’s perspective. We are asked to believe that actors operating in the seemingly infinite domain of legal interpretation are in fact bound by an underlying system of constitutional morality. It is tempting to assert, as I have in fact done, that Dworkin’s theory is based on an ultimately unrealistic hypothesis. It may be more to the point, however, to conclude that he proves to be sensitive to the communication game of constitutional discourse, that he presupposes the existence of a moral constitutional design not because he is an idealist or a fool, but because he is confronted with the rules and conventions of constitutional discourse. He conforms to them because he wants to be taken seriously by other participants. In this way, his discursive behaviour is communicatively rational: playing the game of make-believe. Where Dworkin was initially a spectator of constitutional drama, he later climbed the stage. C ONCLUSION Constitutionalism can proceed on the basis of an aspiration that is generally not realized because it is not really concerned with the establishment of order by means of institutional design, but with the pretence that this is the case. The force behind this collective imagination seems to be that societies tend to reflect on their normative foundations or, if you like, on their identity. This process of normative self-reflection uses constitutional discourse as a medium. In turn, constitutional discourse uses the fiction of the constitution as catalyst. The idea of constitutionalism is a working hypothesis, a presumption that makes constitutional discourse possible. From their internal perspectives, however, participants would undermine the legitimacy of their discourse by acknowledging that their statements are only hypothetically founded. Constitutionalism is a matter of suggestion, a matter of communicating about constitutions as if they were what we wanted them to be, and did what we wanted them to do. 40 Dworkin, op. cit., 12, 13, 225. 41 Ibid., 14. 42 Ibid., 398, 404, 380. 248 OLAF TANS Are we to conclude that modern constitutionalism is not related to the rise of any ‘real’ order? Are we to share Rorty’s opinion that we should stop the quest for quasi-objects and start making decisions ourselves?43 I think the answer must be in the negative. First, I cannot imagine how people could engage in public debate without creating some sort of quasiobjects. Second, and more importantly, I do not think that constitutionalism is entirely ineffective. It may be true that it is feeding a myth, but the constitutional myth may have a great capacity for producing order. My point is that we should be sensitive to the fact that this does not happen in the way that the idea that dominates modern constitutionalism would have us believe: there is no design that is reflected in reality. There is no institutionbased limitation of power in the literal, mechanical sense. Rather, the limitations that are imposed follow from the constitutional myth’s influence on human consciousness: “[C]onstitutionalism is like religion. It is an effort to bring coherency to seeming chaos, supplying a set of beliefs that seek to canalise human conduct.”44 In my view, constitutionalism can be seen as a cultural phenomenon which makes reflection on public issues possible. In this respect, it provides a number of concepts, institutions and practices which contribute to the generation and expression of public and moral identity. But most of all, it generates a shared belief necessary for establishing this kind of theatre. Faculty of Public Administration University of Twente P.O. Box 217 7500 AE Enschede The Netherlands [email protected] 43 Rorty, Truth, Politics and Postmodernism. op. cit., 26. 44 A.S. Miller, Politics, Democracy, and the Supreme Court (Westport: Greenwood Press, 1985), 27.