A Marxist problematization of the concept of constitutional crisis.
Originally published by Legal Form. Republished by permission.
What is a constitutional crisis? Can a diverse array of observed phenomena — such as the slow-motion coup in Brazil, the legal and jurisprudential uncertainty that will attend any possible Brexit, or the attempts to consolidate ethnically and religiously chauvinist regimes from Poland to India, to take but a few examples from the current moment — be united under the banner of a single concept? Or would such a project inevitably collapse into theoretical shoehorning, through which social reality is made to conform to the parameters of an ideal construct?
In what follows I pursue a Marxist problematization of the concept of constitutional crisis. In fact, I propose replacing the term with another: “crisis of constitutionality”. I proceed on the understanding that constitutions, and other modalities of public law, are not blunt instruments of domination wielded by a ruling class, but are instead techniques for the structuration and maintenance of hegemonic relations among and within social forces.1I elaborated on this claim in a previous post. See “Constitutionalism: Appearance, Form, and Content”, Legal Form, available at https://legalform.blog/2017/12/03/constitutionalism-appearance-form-and-content-rob-hunter/. I also rely on a distinction between legality and constitutionality. By “constitutionality” I mean a complex of relations and practices — a bundle of governmentalities, techniques of rule, and other “technolog[ies] of cohesion”.2Sonja Buckel, “The Juridical Condensation of the Relations of Forces: Nicos Poulantzas and Law”, in Alexander Gallas, Lars Bretthauer, John Kannankulam, and Ingo Stutzle (eds.), Reading Poulantzas (London: Merlin Press, 2011) 154, at 161.
“Constitutional crisis” is a term charged with both polysemy and vagueness. One often sees it pressed into use to signify outcomes that the speaker finds unfavorable — this is especially true of legal-fetishistic hand-wringing.3Umut Özsu, “Against Legal Fetishism”, Legal Form; available at https://legalform.blog/2017/11/02/against-legal-fetishism-umut-ozsu-part-one/ (part one) and https://legalform.blog/2017/11/03/against-legal-fetishism-part-two-umut-ozsu/ (part two). The invocation of the notion of crisis is distinct from the mere accusation of illegality. Illegality does not portend a crisis in constitutionality itself. The existence of provisions in many constitutions for sanctioning or removing officials suggests that violations of certain legal norms do not automatically plunge a polity into crises of constitutionality. Rather, such violations are anticipated by constitutional designs themselves: constitutionality is not vitiated by conflict per se among branches, agencies, or ministries. Many constitutional texts explicitly provide for the policing of institutional boundaries, frequently through courts exercising powers of constitutional review. Constitutional equipoise can also be constitutional dysfunction —such are the contradictions of constitutionalism — but it cannot be supposed that all departures from prescribed forms and procedures become crises in their own right.
I find the term “constitutional crisis” so heavily freighted with potential significations that it is unhelpful in either an analytic or an evaluative sense. “Constitutional crisis” is always already judgment-driven; it connotes a departure from a normal order of things (“normal” with reference to what anterior criterion?), or a kind of failing or backsliding that is to be lamented (why should it be lamented, and by whom?). I prefer the phrase “crisis of constitutionality”. Were a crisis to obtain in constitutionality, it would mean the interruption of the continuous production and articulation of constitutionality’s constituent forms — legal, political, and social.
Crises of constitutionality are not the non- or anti-production of legality. Constitutionality is not legality, nor is it unmade by illegality, not least because illegality itself is regularly constitutive of legal orders.4Nicos Poulantzas, State, Power, Socialism (London: Verso, 2014), 84–85. Moreover, crises of constitutionality are not crises of the political. Rather, they betoken the irruption of the political into the constitutional. Here we encounter one of the central contradictions of constitutionalism. Constitutionalism represents a particular vision of the political, is idealized as a kind of overlay on top of social relations, and comprises a distinctive approach to the articulation and maintenance of ruling bloc hegemony. And yet constitutions depoliticize. In seeking to remove certain questions from the scope of political antagonism, acts of constitutional design and assertions of constitutional authority are attempts to delimit and contain politics — and to maintain indefinitely, within certain parameters, a given array of relations (of power, domination, or hierarchy).
Crises of constitutionality are not reducible to law-breaking or political antagonism. Laws may be broken without altering or threatening the totality of social relations. Antagonism is not corrosive of the social, but constitutive of it. To invoke the notion of crisis is to point to a perturbation within a web of mutual presuppositions, and to suggest that, barring extraordinary social activity, the deformation, transformation, or structural alteration of that web is imminent. Crises of constitutionality occur in those moments when the contradictions that constitutionalism is meant to manage cannot be managed through the ordinary reproduction of constitutionality. They are moments in which dominant social formations must articulate and manifest new syntheses, or else risk the endangerment of their hegemony.
Crises of constitutionality manifest in specific moments of the reproduction of constitutionality. Civil wars, coups, the profound deformation of institutions, or the emergence of dual power structures may all reasonably be said to be manifestations of crises of varying degrees of magnitude. These must be distinguished from struggles over the construction and elaboration of constitutional meaning and forms. Constitutional struggles ordinarily attend the enactment, establishment, or disputation of novel constitutional forms, whereas crises of constitutionality obtain in moments when the integrity and cohesion of hegemony are threatened. The US Civil War, for example, was the last in a series of constitutional crises. By contrast, postbellum struggles over the implementation of the Reconstruction Amendments and the shaping of new relations of production and domination to replace formal slavery are described more accurately as struggles over the production and articulation of constitutionality.
Crises of constitutionality must also be distinguished from constitutional violations. The latter occur regularly, both in the polity at large — for example, the use of extralegal violence by state organs in the management of surplus populations, in the reproduction of labor relations, and so on — but also within the relations of social forces that comprise the state. Constitutional violations of both kinds are not harbingers of crisis. Insofar as the internal logic of constitutionalism itself presupposes the regularity of conflict across institutional boundaries, one might say that, far from being accidental to the reproduction of constitutionality, constitutional violations are integral to it.
Of course, certain kinds of norm violation often do precipitate claims of constitutional crisis. One could be forgiven for supposing that the more informal or social-conventional the norm, the more likely its violation will to lead to accusations of crisis-making. This is particularly the case in the contemporary United States, where liberal criticisms of Donald Trump are frequently cast in constitutionalist terms — terms that ostensibly lack specifically political valence. A great deal could be said on this matter. Here let me say only that criticisms of Trump from US liberals show a marked tendency to avoid political or social critique. They focus on the alleged novelty of an executive who flouts long-standing norms of propriety and parliamentary comity (and not, for example, norms regarding the humanity, safety, and dignity of migrants, illegal immigrants, and stateless persons).
It is likely that liberal observers of politics are often exercised by certain constitutional violations, especially departures from anterior norms that were not formally codified, because such violations threaten the conceit that deliberations over constitutional design tend to produce institutions that are governed by procedural rationality, and that such institutions serve to constrain or direct political antagonism towards consensus and consociation. Constitutional violations, on such a view, must be seen as breakdowns or ruptures in the rationality that is presumed to ensure appropriate outcomes — not only in policy, but also in the reproduction of appropriate social forms and hierarchies. Such an assessment of the seriousness of constitutional violations is only supportable if constitutional institutions are seen as the outcomes of deliberative processes guided by anterior commitments to communicative rationality and intersubjective reciprocity. That same assessment could hardly follow from taking the view that they are, say, the juridical condensation of social forces, or the contingent, contested, and dynamically generated outcomes of ongoing patterns of social conflict.
A certain homology may be observed between the constitutive role of crisis in capitalism and the place of crisis within the practice of constitutionality. Indeed, the state of crisis is a regular, recurring, and unavoidable aspect of constitutionalism. Mainstream discourses of constitutional crisis tend to imagine that constitutional orders possess social teloi that they pursue smoothly on their own terms. But constitutionalism is not a homeostatic social machine; it is a technology of rule. It is the form of the “material condensation” of relations among competing social formations as they obtain in specific historical-social circumstances.5Poulantzas, State, Power, Socialism, 128–129. It should not surprise us to discover that the practice of constitutionalism is crisis-ridden, just as we might expect a diachronically persistent social form to be.
Rob Hunter holds a PhD in politics from Princeton University. He has previously written for The Guardian and Jacobin.