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.

Tags: Capitalism, Constitutional Law, Politics

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