Blog of the International Journal of Constitutional Law

A Call to Constituent-Power Ethnography

João Vitor Cardoso, Universidad de Chile**

[Editor’s Note: This is one of our ICONnect columns. For more on our 2023 columnists, see here.]

That ethnography is no longer the exclusive province of anthropology is undisputed. Within a wide range of disciplines that had taken ethnographic turns, there figures what Kim Lane Scheppele defines as “constitutional ethnography,” the better-off procedure to show “how constitutions constitute.” Foregrounding “the law that lawyers know,” Scheppele argues that a constitution structures relationships beyond the state, embracing both domestic political practices and international audiences. The best way to adequately represent it, then, is as a complex and potentially contradictory network of traces, principles, institutions, and meanings—in short, “a web of ideas that separates the rules of the game from the game.” Yet, to what extent does ethnographically informed work supplement extant research in political science, sociology, and constitutional theory? What could an ethnographic sensibility add to work in other research practices such as formal modeling or process tracing? What is it that makes an ethnographer different from other kinds of scholars working on the same topic?

This column offers reasons for researchers already doing empirical work on constitution-making to take an ethnographic turn, by discussing where my motivation for ethnographically informed inquiry into this subject came from. At a first glance, an ethnographic sensibility seemed worthwhile not only because it was a way of troubling “hegemonic doctrinalism” as a dominant mode of studying complex legal phenomena, but also of challenging established ideals and explanations for how and why a constitution is legitimized. Part of what motivated my interest in this problem was my struggle with Chile as a field site where almost everyone is a formalist in their appreciation of what it means “to think like a lawyer,” and where the recent rise of the vocabulary of “the people” and its constituent power—as an untamed cliché— has rendered increasingly murky what the concept might mean or what the phenomenon might be.

By imposing on myself the challenge of exploring constitutional politics using the methods of ethnography, the first obstacle I faced was understanding what mattered and what captivated the attention of constitution-makers in Chile. Despite the commonly reified representation of constitution-making bodies by legal doctrine as rational settings —a locus that can be considered the quintessence of modernism, as the fountain of state legitimacy wherein “general interest” prevails—, only the people who work within these institutions can tell us how things actually work —or fail to work— as they act on multiple, conflicting interests. An ethnographic approach, in turn, challenges these monolithic representations produced by outsiders thus revealing the informational practices and unwritten rules behind their formal appearances. Secondly, it was crucial to gain access to the institution studied. Initially, I was excluded from the actual play of social activities that occurred around the Convention’s palatial corridors. However, I could delve into the internal discussions in which rules were negotiated by subjects through making personal friendships with other young would-be scholars whom I met at the “advisors’ tent.” This meant, first, making a political position explicit, waving flags, clapping at approved clauses, producing comparative law reports, and then, drafting documents, disseminating them, and making subtle comments on how some members should vote. This “militant ethnography” allowed me to approach the main political actors, know their outrages, desires, and interests, listen to their dreams, and interview them several times. It is important to note that only by engaging deeply with some actors, which at times brought me to the core of personal disputes, did I begin to realize how a whole variety of influences intersect over concrete decisions and constituent imaginaries, to gain a deeper awareness of the ideas and practices that often are associated with constitution-making.

Ethnographic work on constitutional politics thus engages in what some social scientists have labeled as “descriptive inference.” Yet, the constitutional ethnographer, unlike anthropologists for whom ethnography is the end in itself, departs from the type of classical fieldwork which aims to “collect” the visions of the subjects of the research to elucidate a “topic.” Instead, from the very beginning, a field site or subject matter is meaningful only in the categories of a “theory.” In this kind of ethnographic inquiry, the researcher is self-consciously guided by considerations emerging out of constitutional theory’s particular commitments and ideals. There is yet no established set of practices with shared characteristics to constitute a coherent corpus of scholarship that might be called “constitutional ethnography.” It is indeed fair to say, though, that it does exist an agenda for a different sort of inquiry into political phenomena like those associated with constitution-making. Either way, in this emerging field of inquiry, there are still doubts concerning what would be an “ethnography of abstractions.” The idea of constituent power, whatever it is, has always been an abstraction. Hence I transpose to constituent power ethnography the lesson Nick Cheesman wrote about the task of rule-of-law ethnography, that is, to insist on constituent power “as an object of inquiry that itself does not quite exist.” In so doing, special regard for constituent power as an object of ethnographic inquiry is not to talk of it as a “crudely objectified idea” but as a conceptual construct mediating how data are gathered and interpreted. Thus, if the choice of whether or not to do ethnographic work on constitution-making hangs not so much on the topic studied as on how the topic has been studied to date, then this call to constituent power ethnography is at once an appeal to counter doctrinal scholarship on constitutional politics and also to think about a new constitutional imaginary which exhibits the experiences of movements and groups in the global peripheries, as the legitimate source to construct modified theoretical lenses.

Lastly, for the ethnographer, constitutional theory is taken simply as a basic “belief” in order to elucidate the structural relationships linking it to the “native theories” of the research subjects. Said differently, the ethnographer should try to discover subjects’ non-academic theoretical inventions by looking for their own understanding of how and why they engage with constitutional politics. This is not an attempt to take constitution-makers as theoreticians. But constitutional theories as structural variations of a unitary constitutional imagination. To that end, by the accumulation of small elementary actions, constituent power ethnography seeks to elucidate the general by the specific, the big by the small, to recount the experiences of flesh-and-blood people who populate our constitutional imagery in action. Before thinking about subjects within a theoretical framework, it is necessary thus to think about their thinking. Instead of thinking about constitution-makers, constituent power ethnography aims to think with them. In the fieldwork, I have found many examples of connections being made between life stories and imagined constitutional futures, that challenge the conventional wisdom about the main qualities of the Constitutional Convention of Chile, and that emerge from close attention to its human composition. Like Giovanna Grandón, a self-made bus operator who felt struck by watching police repression against underprivileged high-schoolers protesting in Santiago’s periphery, which provoked powerful feelings of indignation motivating her to seek to contribute to struggles for social change and for being part of the Lista del Pueblo (a coalition that got 27 members into the Convention). From the outside, Grandón is constantly depicted by political scientists as an extremist, a radical leftist. What is concerning is not how right-wing deputies portrayed her as a picturesque, absurd political subject, but the extent to which this narrative also disseminated throughout our epistemic community so fast. Beyond this caricature, our task is to resemble whether and how these subjects would think of democracy in a different way. We are thereby getting closer to the ethnographic study of how the wider population can be given a voice in constitution-making, thus promoting democratic legitimacy, which seems so important to constitutional theorists but of whose fulfillment there exist very few empirical descriptions.

Suggested citation: João Vitor Cardoso, A Call to Constituent-Power Ethnography, Apr. 12, 2023, at:

**I am grateful to the Research Grant from the University of Chile for support during my fieldwork at the Constitutional Convention of Chile. I would also like to thank David Landau for his helpful comments on this column.


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