Constitutional Politics & Capital

Colombia’s 1991 con­sti­tu­tion is seen by many as the threshold of an in­tense polit­ical pro­cess that has ar­rived at a set of re­volu­tions in Bolivia, Ecuador, Venezuela and now, maybe, Peru. Furthermore, in the midst of a hor­rible con­flict, Mexico is looking to a Colombian-​style con­sti­tu­tional as­sembly to over­come the blood­shed its people have suffered. I be­lieve such at­ti­tudes are mis­guided, and that it is in the in­terest of or­thodox neo­co­lo­nial powers to en­force the con­sti­tu­tional fable.

In the United States, so­ciety, state and con­sti­tu­tion were born in a sin­gular and in­di­vis­ible event and as such, they’re stuck to each other like flesh to the bone; the his­tory of the US is the his­tory of its con­sti­tu­tion. Discourses on eman­cip­a­tion or re­cog­ni­tion, such as the various civil rights move­ments, are pro­duced as legal dis­courses that are settled by the “justices” of a su­preme court. It is this ex­ported model that has in­sured a tight post-​colonial wed­lock on the Latin-​American legal tradition.

The ques­tion is thus: can a con­sti­tu­tion im­mersed in the pro­cess of cap­it­alist glob­al­isa­tion trans­form a polit­ical so­ciety? Can it be­come the basis for res­ist­ance and eman­cip­a­tion? The ques­tion is dir­ected to a gen­er­a­tion that has placed all its trust in the law as the key tool to ac­com­plish so­cial justice and demo­cracy, and as a matter of fact hold in their hands im­pressive achieve­ments to con­tinue to trust the law as a means to­wards polit­ical transformation.

Can a con­sti­tu­tion alter the gi­gantic bal­ances of world power and the in­terests that de­termine them? What is the re­la­tion­ship between this casino form of cap­it­alism – glob­al­ised, un­reg­u­lated and pred­atory – with the local struggles to ob­tain so­cial justice? Can a con­sti­tu­tion re­con­figure a legal system of plan­etary di­men­sions, such as the one de­term­ined by the World Health Organisation or the se­curity council of the UN?

We are dealing with di­ver­ging dis­courses. On one side, there is a massive and sin­cere ef­fort to pin down the prin­ciples of equality and so­cial justice, using a com­bin­a­tion of legal strategies and street act­ivism. But this ef­fort clashes against a world that is a mine­field of in­di­vidu­alist am­bi­tion and greed, where these struggles already have been stowed below the “good book” by dense and ruth­less en­ter­prises, des­troyed by an in­com­men­sur­able fin­an­cial system that defines the legal quar­ters as its own appendix.

The afore­men­tioned di­vide the world into three layers. At the top, a he­donist and su­per­fi­cial coat: the “mega-​alphas” en­trenched in sealed off para­dises, im­mune and in­dif­ferent, the true owners of the world. Then, ad­hered to it, a mortgage-​paying middle class gal­van­ised with de­sire, which be­lieves in the prom­ised land of cap­it­alism. And at the bottom, the thickest layer: the modern-​day slave and refugee, de­prived of any­thing and everything, locked up in an im­mense sweat­shop blocked by walls and fences. They are the nomads of eternity, ex­isting in utter si­lence and vi­ol­ence, on whose misery rests the final proof of the tri­umph of cap­it­alism and liberalism.

What chances does a clas­sic­ally lib­eral con­sti­tu­tion, built with scraps of prom­ises of a better world, stand in such a uni­verse? Can re­sidual and sin­gular ap­plic­a­tions of so­cial rights be an an­ti­dote to a he­ge­mony, where everything can be bought and sold? A world where, for ex­ample, the Chinese gov­ern­ment (the biggest cor­por­a­tion in the world) can buy al­most all of Madagascar – an­other na­tion state – in order to ex­ploit its bio­lo­gical resources?

At the end, how many writs, class ac­tions, legal pro­ced­ures or in­junc­tions are re­quired to put a halt to cap­it­alism? Undoubtedly, the struggle for so­cial justice must con­tinue; the ques­tion, how­ever, is whether na­tional con­sti­tu­tions have the ability to achieve it.

Ricardo Sanin Restrepo is pro­fessor of legal theory at the Universidad Javeriana Bogota-​Colombia

Originally pub­lished here.

  1 comment for “Constitutional Politics & Capital

  1. maria faguet acevedo
    21 October 2011 at 5:15 pm

    Wonderful art­icle!!! For the first time I feel proud I gradu­ated from Javeriana University!

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