–Ursus Eijkelenberg, University of Manchester, Zeit-Stiftung
Not too long ago I watched the BBC documentary ‘Putin, Russia and the West’, a fascinating piece of political journalism and film-making. The work documents a big part of Putin’s rise to power, both his tactics and techniques in acquiring and consolidating power nationally as well as his foreign policy; his actions in the region and the relation and interplay with the West, primarily the United States. Some key players involved in these processes tell their stories, providing a uniquely detailed account of high-level power politics and diplomacy. Although the documentary as a whole is intriguing and most certainly worth watching, there is a small section of this series, merely a fragment, which got stuck in my head and thus became the topic of analysis for this short piece. The imagery and the situation depicted are perplexing: a mass of teenagers, participants in a constitutional festival so is told, are in the background of the picture actively engaged, not singing or dancing, but – en mass – exercising some form of martial arts. Whilst these ‘festivities’ take place, Gleb Pavlovsky, one of Russia’s most (in)famous political technologists, explains that “constitutional action sometimes requires street fighting.” I had a laugh, took a screenshot and continued watching.
Recently I stumbled on the screenshot and as this element was singled out, placed outside the context of the documentary, I was not quite sure why I had perceived it as utterly ridiculous: “constitutional actions sometimes requires street fighting.” Taken out of its literal sense of teenagers performing martial arts, the statement has some metaphorical value and resonates with the constitutionalism debate so vibrant nowadays. Understood as such, the statement indicates that constitutional action sometimes requires struggle, contestation, political fighting on the streets, that is on a foundational, civic level.
The two questions that rose to my mind were, first, how does liberal constitutionalism fight its battles. That is, by what means and in what arena does it confront its adversaries? And secondly, is this statement genuinely farcical, or does constitutional action indeed require street fighting? In regard to the latter, I will here make the case for what I dub as ‘civic militancy’. But let’s start with the first.
In the last decades liberal democracies have acquired a good record of consolidation. After Weimar’s debacle, and more generally in the post-war era of new and fragile democracies, stabilization and consolidation have been one of the (if not the) main concerns in liberal democracy’s configuration. Hence, two key theories with significant overlap rose to prominence and became part of the indispensable core of the political system, namely militant democracy and legal constitutionalism. Militant democracy is a somewhat ambiguous and therefore, as some authors argue, a flawed concept. Whereas its practical use is often directed at challenging adversaries that appear within the realm of ordinary democratic politics, its protected ends mainly lie within the broad spectrum of constitutional principles. Militant democracy sees to equip democracies with instruments to protect itself against its own decay. Although the systemic challenge is intra-political, systemic responses are mostly of an extra-political nature; the force of law is employed to bolster the principles under siege, and courts, as their guardians, are empowered to infringe in the political and legally confront democratic adversaries. This protection, which is often substantiated in the form of party prohibitions, stretches to a broad, often undefined gamut of constitutional principles, which are not essentially democratic but rather part of the more comprehensive liberal constitution. The notion militant democracy is therefore more of a guise for protecting (although they are linked) the liberal constitution rather than democracy itself. The essential point is, however, that militant democracy entails the absorption of political challenge in the legal arena.
More broadly but in a similar vein, legal constitutionalism comprises a theory justifying (again) a law-based modus operandi. Legal constitutionalism is built on the idea that, in the words of Judith Shklar, law is not only apart from politics but also superior to it. This implies that law and legal actors have become essential for systemic preservation. Through constitutional interpretations and judicial review courts not only assert their political power, they simultaneously expand it. This ‘judicial expansionism’ is one of the main reasons why social and political scientist like Ran Hirschl and Paul Blokker are increasingly engaging in and critical towards the acceptance of legal constitutionalism as a foundational theory of constitutional democracy. Similar to yet broader than militant democracy, legal constitutionalism establishes mechanisms to absorb political questions and challenges into the legal realm, away from the political arena of conflict and contestation.
Although liberal democracy has indeed a fine reputation of self-preservation in the post-war era, some questions related to the sustainability of its self-preserving endeavours came to mind, most importantly: what are the consequences of the extensive and expansive absorbing of political challenge into the legal domain? It seems to me that with the primary mechanisms of systemic preservation situated outside the realm of democratic politics, placed beyond the direct influence of citizens, the necessity for a ‘militant’, democracy-preserving civic body is reduced. Based on the idea that challenge is a prerequisite for awareness, the limited necessity of citizens’ engagement in the upholding of such principles eventually also affects their ability to do so. In other words, the dismantling of political challenge from citizens’ engagement erodes and diminishes the internalization of a ‘value consciousness’ concerning basic constitutional and democratic principles. As an unchallenged mind is stripped from reflection and revaluation, it eventually grows unaware of what principles are his or hers. Moreover, if this value consciousness, understood as the internalization basic principles on an individual and societal level, is compromised and awareness of our own position gets lost, how then to recognize danger? The absence of a robust value consciousness crates the hazard that when system’s mechanisms of self-preservation are circumvented, society’s awareness and resilience might be inapt to recognize or respond to certain constitutional democratic menace. At best these self-preserving endeavours lead to the hollowing out and erosion of constitutional democratic principles on a civic and foundational level, at worst it leads to the subversion of the political system at large.
The point stressed here is that ‘civic militancy’ – a quality of self-preservation at the legitimizing civic core of the system – rather than expert- and law-based militancy is indispensible for a sustainable practice of systemic preservation. The less a citizen body is involved in the maintenance of constitutional democracy, i.e. the less it is actively challenged and hence required to formulate the contours of its basic values, the more such principles get uprooted from the system’s foundation. By taking the fight from the streets, the foundation and hence the system at large become vulnerable, so that liberal constitutional democracy creates and is exposed to its own fragility. Strong legal constitutionalism, therefore, fosters weak constitutional rooting.
To round up this brief exploration, it seems that liberal democracy has been blinded by the fear of what might happen, and has chosen a remedy that creates the conditions in which the dreaded situation is most likely to occur. Hence, with the sustainability of constitutional democracy in mind, Gleb Pavlovsky’s ideas are less farcical than perceived at first glimpse and should be taken seriously. The civic domain is in need of political challenge, and through these a robust foundation is created for a viable and vibrant political system. Not the training of the physical, but of the mind and the spirit. For this to succeed constitutional action sometimes requires street fighting.
Suggested Citation: Ursus Eijkelenberg, Black Belt Constitutionalism: Considering “Street fighting” as a Constitutional Essential, Int’l J. Const. L. Blog, Oct. 20, 2018, at: http://www.iconnectblog.com/2018/10/black-belt-constitutionalism-considering-street-fighting-as-a-constitutional-essential
 S. Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts, Cambridge University Press 2015.
 J. Shklar, Legalism, Harvard University Press 1964, and M. Goldoni, Two Internal Critiques of Political Constitutionalism, Oxford University press 2012, p. 929.
 A. Stone Sweet, Constitutionalism, Rights and Judicial Power, Yale Law School: Faculty Scholarship Series paper 77 2008, p. 233.