Founding Acts. Serdar Tekin
have been arguing that, from the standpoint of democratic theory, how constitutions are made (their pedigree) is as important as what they are made of (their content). Before concluding this chapter, let me address a forceful objection to this claim—an objection based on the case of successful democracies that have obviously undemocratic constitutional beginnings. Christopher Zurn poses the challenge in a clear way: “Consider, as examples, the Allies’ virtual imposition of the German Basic Law and the Japanese Constitution after the end of World War II. Arguably both constitutions have both the requisite conceptual content to count as legitimate constitutional democracies and the historical record of having sustained constitutionally successful and democratically decent political practices and institutions for some sixty years. Might even such successful constitutional democracies be illegitimate in light of their nondemocratic origins?”39
Admittedly, the short answer—my short answer—to such a question is “no.” A constitution which was not made democratically in the first place may indeed come to be embraced and regarded as democratically legitimate over time. The German Basic Law and the Constitution of Japan are good cases in point. Today, they can be said to bear democratic legitimacy precisely because generations of citizens have gradually appropriated these documents and made them their own constitutions in and through a long process of application, interpretation and reinterpretation (hence the “historical record” of “some sixty years”). However, notice that we can make a legitimacy judgment of this sort only in retrospect. What is the extent to which (and the ground on which) one can prospectively make such a judgment? After all, there is a difference—one would say a crucial difference—between looking backward and looking forward, between saying that an undemocratically adopted constitution has already become legitimate over time (a retrospective judgment) and would perhaps become legitimate in the future (a prospective judgment).
This difference is already reflected in the fact that, acting prospectively in 1949, the framers of the German Basic Law named it a “basic law” (Grundgesetz) and not a “constitution” (Verfassung) in the proper sense. As Donald Kommers rightly observes, they “did not want to bestow the dignified term ‘constitution’ on a document drafted to govern a part of Germany for a transitional period.”40 The Basic Law was considered “transitional” in two major ways. First, as Germany was divided at the time, the framers thought that a proper constitution would have to be adopted upon unification. Secondly (and for our discussion more importantly), the Basic Law was framed and enacted under the circumstances of postwar occupation, and hence lacked the kind of democratic legitimacy that the exercise of popular sovereignty alone could have bestowed on a new constitution. “The framers were looking forward to a time when Germany would be whole, not only in the physical sense of being unified, but in the moral/political sense of being a fully democratic society.”41
Indeed, the framers clearly expressed in the Preamble both of these concerns by stating that the Basic Law was meant to “give a new order to political life for a transitional period,” while at the same time calling upon “the entire German people … to accomplish, by free self-determination, the unity and freedom of Germany.” Even more emphatically, the text ended with the famous Article 146, which read: “This Basic Law shall become invalid on the day when a constitution adopted in a free decision by the German people comes into force.” Of course, when the prospect of a unified Germany ceased to be a remote hope and suddenly became a real possibility in 1989, the once transitional Basic Law had already grown into a real constitution and already assumed the “character of a document framed to last in perpetuity.”42 Thanks to several decades of democratic experiment, the Basic Law was now firmly rooted in the political culture of Western Germany and widely regarded as a legitimate constitution, notwithstanding its undemocratic beginnings.43
As I see it, there are two basic lessons to be drawn from the German case. First, an undemocratically enacted constitution may come to acquire democratic legitimacy over time. Secondly, as the framers of the Basic Law were keenly aware, this does not change the fact that there was a legitimation deficit at the beginning. Based on these two premises, I think, we can plausibly conclude that how democracy gets off the ground should be a matter of concern for democratic theory even if the deficit of original legitimation is not in principle irreparable and constitutions may also gain democratic legitimacy in retrospect. Let me deploy an analogy here. We all know that children can overcome bad starting points in life; but none of us would therefore think that, just because it is possible for them to overcome bad starting points in life, what has happened in their childhood is irrelevant or does not matter. Much better, naturally, if they had had supportive and flourishing childhoods. In line with that analogy, I therefore argue that democratic theory would be well-advised to attend to the “how” of constitution-making (the genesis or “childhood” of nations) in addition to the “what” of the constitution itself.
Finally, we also need to consider that the failures of democratic constitution-making can produce lingering problems as well. The Canadian Constitution Act of 1982, which was brought to pass without Québec’s consent, would serve as a good example here. Strictly speaking, it was not an act of making a new constitution from scratch because most of the 1867 constitution was retained intact. Nevertheless, it was a founding act of sorts since it created, symbolically and legally, a new constitutional order: first, by patriating the existing constitution; and second, by supplementing it with a charter of rights and freedoms.44 As such, the act was meant to entrench the pan-Canadian vision of an independent nation built on the equality of citizens and provinces. All this, however, was done despite Québec’s grievances. “The government of Québec,” James Tully tells us, “argued that the Charter constituted an imperial yoke over Québec’s distinctive French-language and civil-law culture, forged through centuries of interaction with English-language Canada, and that it needed to be amended to recognize Québec’s cultural distinctiveness.”45 But no such amendment took place, and the Constitution Act was brought to pass without getting on board the second largest province in the country—and this in spite of the fact that the constitution itself stipulated unanimous consent among provinces for any major or structural amendment in the future.
Now, let us reconsider the issues of “who,” “how” and “what” in light of this example. What was put into motion by the Canadian Constitution Act of 1982? How was it put into motion? And by whom? Basically, the act endorsed a constitutional democratic system with a strong emphasis on individual rights and the political equality of the provinces. As such, there was no plausible evidence against the generic or abstract presumption that it was meant to carry on—to use Zurn’s wording—“the project of constitutional democracy in a dynamic, self-correcting, and thus progressive manner.” And yet, this did not suffice to make it legitimate or worthy of consent for many citizens of Québec. They perceived it as a specific interpretation of the constitutional democratic project, one that is deeply individualistic and pan-Canadian in spirit, and hence unresponsive to Québec’s claims for cultural recognition.46 Québec already had a problem with the proposed content of the Constitution Act, but the way it was brought to pass (i.e., the dimension of “how”) added conspicuous insult to possible injury. Instead of seeking a resolution that was acceptable to all parties, the federal government decided to move without Québec’s support—a decision that brought about deep resentment in the province and fueled separatist feelings.47 Excluded from the table, many citizens of Québec were not in a position to view themselves among the possible owners of the constitutional project and become attached to it as their own constitution. As a result, the constitution was not only grafted onto a fragmented “who,” but the way in which it was grafted led to deeper fragmentation.
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This chapter opened with a simple observation about two characteristic features of the modern constitution: that it is the product of a deliberate founding act, and that it claims to rest on “the people.” While the former refers us to the “origins” of the political association, the latter brings to our attention its “foundations.” My contention is that, from the standpoint of democratic theory, these two motifs can no longer remain isolated from each other. The normative foundations of the democratic constitution must be performatively manifest in its origins.