Ever since judicial supremacy was affirmed in Marbury v Madison [5 US 137 (1803)], the political content of US-inspired constitutions has been compressed and turned into purely techno-legal content (ordinary law). What has taken shape is a tradition in which the methodology of constitutional interpretation is reduced to a conventional set of legal rules. Constitutional language becomes elitist to the point where only a handful of ‘experts’ in the dark arts of adjudication can operate within it. In addition to expert control over the factual and legal bases within constitutional discourse, this guarantees their absolute control over what should be areas subject to societal debate and/or political contestation. In effect, the constitution loses all political content.
When the meaning of a political constitution is expressed solely through a depoliticized expert language, this frustrates popular formations and renders democracy invisible. Yet this, we claim, is precisely what has happened as part of an ambitious agenda that extends historically and that has been perfected in contemporary constitutions.
Constitutional theory classically divides the text into a dogmatic part, on one side, and a systematic or organic part on the other. This theory must be superseded by a new classification that reflects the erosion of democracy in modern liberal constitutions. The true structure of contemporary constitutions of US heritage involves:
i) a transparent and accessible part that is open to society to the extent that its provisions are fairly understandable. It would appear as a literature full of principles, guarantees and rights allowing individuals and even groups to interact with the constituted powers and achieve protection of their rights, the inclusion of their identities, and the defense of the constitution.
ii) an encrypted part, the key to which lies in the increasing specialization of constitutional language, procedures, and rules for decision-making. Any common-sense understanding and any possibility of common knowledge and public interaction is thereby precluded. Progressive social interaction is weakened by impenetrable institutionalization and the opacity of power. This, in turn, leads to decision-making in secret and/or closed forums obviating the need to be responsible/accountable to the general public.
It is important to note that when speaking of the two parts of the constitution, the “transparent” and the “encrypted”, we are not referring to physical or material parts of the Constitution, as if the Bill of Rights of a constitution is clear and the organic part is encrypted, but rather to the notion that, ideologically, any part of the Constitution, even the clearest part, is always encrypted. Basically, in order to be politically attractive, power always needs to present the Constitution as transparent at first glance. It needs to convince us that we are all included and safeguarded, but in the same gesture, when real interaction takes place, we find the constitution to be already encrypted.
1. Basic form of encryption
The first purpose of encryption is the disguising of all dimensions of power. With the encryption of techno-legal language and, therefore, procedures, protocols and decisions, subtle manifestations of power become undetectable to anyone who does not have the linguistic knowledge to break the encryption. Thus, encryption depends on the existence of a group that has access to the formulae of encryption and another group that completely ignores them. The latter, being unauthorized readers, are open to manipulation.
It is important to understand that encryption differs from the secret. Derrida explains
[T]here may be some writing that I can’t decipher (a letter in Chinese or Hebrew, or simply an indecipherable handwriting) but remains perfectly visible in spite of it being sealed to most readers. It isn’t hidden but it is encoded or encrypted (Derrida, 1995, p. 89).
What we have then is the perfect visibility of the acts, which are formally consistent with the principle of the transparency of (political) power, but whose comprehensibility is undermined by a semantic construction that forecloses any public interaction or critique. In essence, encryption ensures the failure to communicate the act. In the words of O’Neill,
The first requirement for any communication is that it be capable of reaching its intended audiences (…) Accessibility is therefore the most elementary standard that communicative acts must seek to meet, and is more basic than specific epistemic and ethical standards that may be relevant to communicative action of specific sorts (O’Neill, 2009, p.175)
2. Encryption displaces politics and law from the public sphere
One of the fundamental aspects of encryption is its use in producing decisions as if they were purely technical, stemming from a careful application of clean and rational scientific method, and which, therefore, cannot be opposed. In reality such decisions are purely ideological. Decisions are presented as a product of logical necessity and as having no alternative, divorced from any political lexicon and practices. This amounts to the legitimized displacement of politics and law from the public sphere.
3. Encryption as fetish
In connection with the previous section, there exists an even deeper and more aggressive dimension of encryption used to neutralize democracy. Encryption has a direct impact on the level of the formation of belief and anchors the true function of ideologies. The encryption of the constitution and the exclusive use of language by experts create the fantasy in which only experts can save us from problems so complex (global climate change, the formation of mega-financial bubbles, the oligopoly on weapons of mass destruction etc.) that only “they” can understand them and, therefore, resolve. An omnipotent and all-knowing power dominates the subject and she comes to recognize and identify herself as the subject-lacking-knowledge, thus laying the conditions for a fetishistic dependency on this specific dynamic of domination.
When encryption alters linguistic meaning, replacing one set of symbols for another, constantly changing signifiers, what is altered eventually is reality itself. This is when the subjection to power embodied in the encryption becomes absolute and when the level of popular disempowerment has a disastrous effect: by being unable to know what they know, only they can save us. The irony, of course, is that our perception of a complex or traumatic reality is the result of the encryption itself.
4. Encryption as the commercial privatization of culture
Encryption is not just an esoteric political and legal language used by a small group of insiders to exert control over culture and its codes. Encryption also creates rigid areas of political and social exclusion through the privatization of culture, where knowledge is always for sale as an artificially scarce resource. The strict control over access to knowledge acts as an unyielding boundary of political exclusion. But this new divide ceases to be an obvious and repulsive apartheid, since it is reintegrated into more subtle forms that are built-in as a standard of legality and which even become seen as a bonus of the system. In short, a) encryption is coterminous with knowledge-for-sale and concomitant social exclusion; and b) even those with access to knowledge, ie the ability to purchase it, acquire not only the maps of language and its uses, but also the sacred and rigorously monitored duty to defend its encryption.
5. Encryption as a new form of racism
Quijano and Wallerstein have convincingly argued that technocracy and meritocracy have become new forms of racism (1992, p. 29). The key to ethnicity is its elastic usefulness: it compresses or expands easily. Ethnicity in modernity has always had a close relationship with the division of labor, from black slavery, indigenous laborers or the cheap labor of immigrants. However, the final stage of racism is meritocracy—shielded by the supposed universalist neutrality of knowledge and its methods and finally secured with a difficult litmus tests. Thus
given the ethnic hierarchization, an examination system inevitably favours disproportionately upper ethnic strata. The extra added plus is that a meritocratic system justifies racist attitudes without the need to verbalize them. Those ethnic strata who perform more poorly do so because they are racially inferior. The evidence seems to be statistical, hence ‘scientific’ (Quijano & Wallerstein, 1992, p. 28).
To be initiated into the encrypted constitution, to become an expert, one must not only buy knowledge but: 1) undergo complex social rites of initiation into a rigid teacher-student relationship and a dense institutionalization of knowledge, 2) use grammar in a way that identifies a community of insiders, 3 ) share with the community the elements and the language that constitute the paradigm, and as mentioned above, 4) fulfill the sacred duty to reject attempts at decryption (failing to comply with this duty results in expulsion from the community).
Consequently, it is easy for those ethnic strata who are not privileged enough to gain such access to be seen—in the sense of Quijano and Wallerstein—as racially inferior.
Decrypting the constitution?
We suggest that democracy is the main threat to the reproduction and legal naturalization of capitalism and its forms of domination. Following Slavoj Žižek (2009), only a true democratization of the commons of culture removes, through “matter subtraction”, the encryption of the constitution and other languages that engulf power. We believe that if we use the category of “encrypted constitutions” as a new research agenda and as a new matrix to access and shatter power, it may be possible to establish a new and emancipatory vision of global justice.
Amongst other things, the encryption of constitutions is the formula for the enforcement of a flat world of dogmatic legality where asymmetric legal institutions (like the constitutions in the United States, Latin America, Europe and Africa, the resolutions of the Security Council of the United Nations and Resolutions of the General Assembly) are seen as symmetric. The encryption of constitutions is the formula for synthesis and separation between economic and extra-economic powers. It guarantees the expulsion of persons and peoples through the power of the market and it ultimately guarantees—as do all projects of liberal domination—the perpetual state of exception.
The key to power as domination in our pseudo-democratic, globalized world is its encryption, mainly through the legal kernel of “constitutions” which render democracy inoperative and preserve oppression as the only manifestation of power. To decrypt power means to overturn the bulk of the liberal agenda that has systematically frustrated democracy through privatizing the commons and depoliticizing social conflicts. Decryption is therefore not only a critical category or a semiotic method; it also stands as a theory of justice immanent to democracy.
Gabriel Méndez Hincapíe is a professor of political science and law at Universidad Autónoma de Manizales and Universidad de Caldas (Colombia).
Ricardo Sanín Restrepo is Researcher in legal and political theory at Universidad Javeriana (Colombia) and a visiting lecturer at, among others, UNAM-Mexico, Universidad Central-Ecuador, Universidad de Valencia-Spain, and PUC Rio de Janeiro-Brazil.
For a fuller elaboration, an article is available in Spanish here.
A stream at the Critical Legal Conference 2013 is devoted to this theme.
—Derrida, J. (1995). The gift of death. Chicago: University of Chicago Press.
—O’Neill, O. (2009). Ethics for communication? European Journal of Philosophy 17:2 ISSN 0966-8373 pp. 167–180
—Quijano, A & Wallerstein, I. (1992). Americanity as a concept; or, The Americas in the modern world. International Social Science Journal, XLIV, 4
—Žižek, S. (2009). First as tragedy, then as farce. New York, London, Verso.
Why is “liberal” ever considered a “bad” word, idea or deed? With true self-determination (non-violent, of course), the sovereignty of the individual requires liberal margins in order to live within the individual’s place in that continuum.