–Reviewed by Zoran Oklopcic, Assistant Professor, Carleton University
With the demise of communism in the late 1980s, liberal-democratic constitutionalism emerged as an almost pleonastic set of ideas about how to structure the political life of a territorial polity. Present-day challenges to the idea of constitutionalism cluster around its suitability to be translated into different political and geographic contexts, much less so about its liberal-democratic commitments. So far, those dissatisfied with constitutionalism’s liberal-democratic commitments have turned to legal pluralism, various versions of agonism or radical democracy as more promising intellectual endeavors for a truly emancipatory political agenda. The achievement of Joel I. Colón-Riós’ Weak Constitutionalism is that it bridges the distant shores of constitutionalism and (radical) democracy, not by abandoning the traditional terrain of (liberal-democratic) constitutionalism, but rather by recasting and making operational one of constitutional theory’s central concepts—the constituent power of the people.
Colón-Riós’ central idea is simple: the constituent power of the people, read in the democratic key, mandates radical political openness and the broadest direct popular participation in the process of constitutional change. In this process, the constitutional form shouldn’t enjoy precedence: the citizens should be allowed to propose, deliberate, and decide on a new constitution unconstrained by the strictures of the existing constitution. In constructing his argument, Colón-Riós retrieves the tradition of extraordinary constitution-making bodies of the 18th and 19th centuries, positioning himself in the tradition of long struggles for ‘democratic constitutionalism’. He skillfully weaves in comparative constitutional material emphasizing the recent jurisprudence of Latin American constitutional courts, unique in their jurisprudential treatment of the idea of constituent power. There is much to learn from Colón-Riós’ book.
However, in attempting to establish a truce between radical democracy and constitutionalism, ‘weak constitutionalism’ shouldn’t be judged by the standards of either side’s most faithful proponents. Radical democrats will agree with Colón-Riós’ basic assumptions and may only quarrel with the seeming superfluousness of constitutionalist vocabulary. Liberal-democratic constitutionalists, on the other hand, will always remain suspicious of democratic impulses, and will most likely see in Colón-Riós’ Latin American examples not the exercise of democratic openness, but rather the suspect tolerance of emergent ‘competitive authoritarian regimes’. For those sharing Colón-Riós’ intellectual disposition, a more fruitful tack, perhaps, would be to justify weak constitutionalism against its potentially close conceptual cousin—minimal, but strong democratic constitutionalism. Such constitutionalism would seek to perpetuate only the principle of democratic openness through the entrenchment of a set of essential democratic rights. Colón-Riós preempts this alternative, and offers a three-fold response. First, to entrench rights, if only democratic ones, can be misinterpreted by the government. The government’s bias, the author hastens to add, can be remedied by entrenching only an interpretation of such rights (in effect, entrenching a specificationist view of fundamental rights), but this would, he argues, be impracticable. Secondly, as the example of New Zealand shows, this entrenchment may not even be necessary. Finally, liberal-democratic rights carry the baggage of ‘mainstream acquisitive capitalism’ (27).
However, all three reasons—misunderstanding, impracticality, and baggage—relativize, but don’t strike a decisive blow against minimal, if ‘strong’ and democratic, constitutionalism. This, in turn, recasts the argument for ‘weak constitutionalism’ as a matter of a tradeoff. On the one side, we have a redefined account of constituent power mandating full openness and participation during the moments of constitution-making. But in the cases where democratic process goes awry, there is nothing to back up constituent power’s promise of democratic openness, except for theorists’ exhortations. On the other side, we have a constitutionalism that counsels the entrenchment of democratic rights only, and while possessing some robustness against authoritarian cooptation, nonetheless runs the risk of being undermined by the bureaucratic elites interpreting it. At this point, Colón-Riós simply accepts that his conception of constitutionalism is not risk free, but maintains that these risks are lesser in comparison with a system that puts democratic politics into an institutional straitjacket. (60) This, however, is an assertion that awaits empirical verification.
A stronger, if ideological, answer to this question would be to pit ‘weak constitutionalism’ directly against ‘acquisitive capitalism’. While this is not a move Colón-Riós pursues, the usefulness of weak constitutionalism for a Left-wing social project always lurks behind Colón-Riós’ argument. Instead of defending a Left-wing, weak constitutionalism, however, the author’s embrace of its inherent riskiness follows Sheldon Wolin and Cornelius Castoriadis in their understanding of democracy, and the radical political openness it requires. For Wolin, democracy is not a mode of government, but a risky, episodic moment of popular participation that cannot be contained, and is always destined to challenge the established constitutional forms. (50) For Castoriadis, democracy means that the people can do anything, which establishes it as a regime of ‘historical risk’, and potentially ‘a tragic regime’. (59).
By openly accepting this risk, Colón-Riós’ weak constitutionalism challenges more than a symbiotic relationship between liberal democracy and constitutionalism. By accepting the democratic legitimacy of potentially imprudent decisions, weak constitutionalism challenges the entire genre of constitutional law, conceived, to use Martin Loughlin’s words, as a “method of prudence”. This leads us to ask whether Colón-Riós’ appropriation of Wolin and Castoriadis, that keeps the door ajar to democratic impulsivity, also undermines the stability of the constitutional order as a whole, especially since Colón-Riós rejects Holmesian, liberal-democratic justifications for constitutional precommittment. Are there any conceptual assumptions behind the idea of ‘the people’ that would lead us to believe that the constitutional order won’t be perpetually undermined by “the impulses of rage, resentment, jealously, avarice, and … other irregular and violent propensities”, as Alexander Hamilton wanted us to believe? Colón-Riós doesn’t pursue this point, but it is worth speculating whether the fundamental assumption behind constitutionalism’s reconciliation with radical democracy is a wager that popular energies are actually modest and infrequent, that resentment is a response to oppression, and not a result of ‘irregular and violent propensities’. In other words, the reason why we don’t need constitutional precommittment is because we will have it anyway, just by other means: at least in theory, radical democratic constitutional change will entrench itself by the sheer fact of infrequent popular mobilization.
This understanding would to a certain extent vindicate the usefulness of calling some changes ‘fundamental’, and dividing democracy into practices of ‘daily governance’ and those oriented toward a change of fundamental laws. However, the book would have profited from a more refined understanding of what counts as ‘fundamental’. Is fundamental everything that ‘the people’, through more intense deliberation and broader participation, deem to be fundamental? Or, should we understand ‘fundamental’ in a more formal way, namely as those decisions that pertain, to use Schmitt’s vocabulary, to the type and form of political unity (separation and division of powers, bill of rights, etc)? I don’t think this question is overly pedantic. If we embraced the first option, we would come close to writing off the relevance of an independent understanding of democracy as a dual regime. In that case, it would be the ‘will to constitutionalize’ that establishes the distinction between ‘daily’ and ‘fundamental’ democracy in the first place. If, on the other hand, we embraced the second, substantive understanding, we may not detect seemingly innocuous decisions that are potentially far more fundamental than whether a political system will be a monarchy or a parliamentary or a presidential republic. For example, are the proposals to constitutionalize the rules on fiscal responsibility, as currently flaunted in Slovenia, of fundamental or of daily importance? On its face, they pertain to the management of daily economic activity; substantially, however, they carry the potential to vitally damage the scope of feasible democratic choices that may affect the well-being of the polity. To constitutionalize them would require wide popular participation, and not just a technical constitutional amendment. By the same token, the fortunate result of popular constitutional mobilization will increasingly depend on the loci of power outside of the people’s control. At the end of the book, Colón-Riós gestures favourably towards the stems of popular constituent power that sprang up in Greece during protests against the bailout conditions imposed on the Greek government. But, no amount of popular deliberation will, in all likelihood, change the fact that true Greek pouvoirs constituants (constituent of the fundamental political choices that are bearable, and not ‘tragic’) are actually external, somebody else’s, pouvoirs constituées—such as credit-rating agencies, the German Parliament, the German Constitutional Court and the European Central Bank.
If celebrating popular constituent power in the register of social struggles risks misallocating popular energies and increasing the chances for subsequent disillusionment, deploying popular constituent power in (multi)national settings is as dangerous as it is conceptually problematic. A recent Bolivian episode of constitution-making is a case in point. Colón-Riós approvingly mentions the popular mobilization that led to the Bolivian constitution, as well as the solutions entrenched in it that would enable the popular activation of constituent power. What is missing from these references is an account of the serious nationalist backlash against the exercise of Bolivian popular constituent power during the process of constitutional change in the resource-rich region of Media Luna, which nearly brought the country to the brink of civil war. Ironically, the final constitutional agreement that staved off all-out conflict was hammered out behind closed doors, in a ‘pacted’, and not popular way. While this is an empirical point, it also gestures toward a larger conceptual difficulty with Colón-Riós’ account, that not so much undermines the theoretical salience of his account of constituent power, but which sharply restricts its application to the context of homogenous (mono-national) states. The reason behind this restriction should not be sought for in some un-reflexive Schmittian celebration of homogeneity, but rather in a foundational problem of democratic theory: the problem of the legitimate scope of a democratic unit. To postulate ‘the people’ as the bearer of constituent power only begs the question about its identity. Democratic openness and participation are of no help here; they are conceptually divorced from the problem of horizontal links of political allegiance among diverse citizens. This question almost tragically manifested itself in a ‘plurinational’ state such as Bolivia, but remains open in liberal-democratic states such as Canada or Spain, as well. In these contexts, the very act of prescribing participation can have a hegemonic character, irrespective from which side it comes, the larger state seeking to maintain the status quo or the minority polity seeking to sever or loosen the links between itself and the larger one.
While the above objections seek to moderate enthusiasm for an invocation of the vocabulary of popular constituent power in social and national struggles, they shouldn’t be read as detracting from the author’s impressive theoretical achievement. In defending the constituent power of the people, Weak Constitutionalism not only asks important questions that seek empirical verification, but, perhaps most importantly, sets the stage for a necessary dialogue between progressive liberal-democratic constitutionalists and their—now just arrived—radical democratic counterparts.
 For an early post-Cold War non-liberal-democratic account of constitutionalism see Graham Walker, “The Mixed Constitutionalism After Liberalism” (1996) Cardozo J. of Int’l. & Comp. L. 311. Also see, Upendra Baxi, “Constitutionalism as a Sight of State Formative Practices” (1999-2000) 21 Cardozo L. Rev 1183. For more recent accounts of constitutionalism in a non-liberal-democratic key, see Larry Catá Backer, “The Party as Polity, The Communist Party and the Chinese Constitutional State: A Theory of Party-State Constitutionalism” , (2009) 16 J. Chinese Comp. & Law 671.
 Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003) at163.
 David Landau, “Constitution-Making Gone Wrong” (2012) FSU College of Law, Public Law Research Paper, no. 587 at 30.
 While on the radar of democratic theorists for several decades, this question has only recently garnered attention among legal and constitutional theorists. For a conservative answer that mostly upholds the legitimacy of existing territorial peoples from the vantage point of Hobbist and Kantian interpretation of the social contract tradition see Jeremy Waldron, “Two Conceptions of Self-Determination” in S. Besson and J. Tassioulas, eds., The Philosophy of International Law (Oxford: Oxford University Press, 2010) 397. For a more flexible and multidimensional approach that provides criteria for new legitimate demoi, see Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford: Oxford University Press, 2010) at100-101. Finally, see the debate between Hans Agné and Mark Tushnet in the July 2012 issue of the International Journal of Constitutional Law for probably the first direct exchange between a democratic and a constitutional theorist over the question of the democratic legitimacy of ‘the people’.