Constitutionalism, Identity, Difference, and Legitimacy

Theoretical Perspectives

Duke University Press

Contents

Introduction

MODERN CONSTITUTIONALISM AS INTERPLAY BETWEEN IDENTITY AND DIVERSITY

Michel Rosenfeld

The spirit of constitutionalism has so dramatically soared of late that it seems poised to achieve a worldwide sweep. Moreover, two recent sets of events have invigorated constitutionalism and propelled it to the forefront. First, the bicentennial celebrations of the American Constitution and the French Declaration of the Rights of Man have underscored the importance and durability of modern constitutionalism. Second, sweeping changes towards constitutionalism have taken place since 1989 in Eastern and Central Europe as well as in what used to be the Soviet Union. Furthermore, the collapse of authoritarian socialist regimes has paved the way for the completion of the worldwide thrust towards constitutionalism that began shortly after the end of World War II. Starting with the adoption of the Japanese Constitution and the West German Basic Law, this trend continued with the embrace of constitutionalism in Western European countries such as Greece, Portugal, and Spain, which later spread to such Latin American countries as Argentina and Brazil.

There appears to be no accepted definition of constitutionalism but, in the broadest terms, modern constitutionalism requires imposing limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights. Moreover, although not all constitutions conform to the demands of constitutionalism, and although constitutionalism is not dependent on the existence of a written constitution, the realization of the spirit of constitutionalism generally goes hand in hand with the implementation of a written constitution. As the number of diverse constitutions purporting to adhere to the fundamental tenets of constitutionalism proliferates, however, the relationship between constitution and constitutionalism and the very boundaries of the concept of constitutionalism tend to become increasingly blurred. This, in turn, calls for the providing of new perspectives on modern constitutionalism and its relation to modern constitutions from the standpoint of theoretical perspectives that are both anchored in particular national and cultural settings and open to broader comparative concerns.

The essays published in this book all make significant contributions to the task of bringing to bear fruitful theoretical perspectives on several of the most thorny problems raised by the relationship between constitutions and constitutionalism. Moreover, given the vast array of issues that fall within the scope of the relationship between constitutions and constitutionalism, the following essays focus on a central concern raised by various attempts to implant constitutionalism through the deployment of a constitutional order. This central concern is that of the proper role of constitutions and constitutionalism in forging a fruitful interplay between the reinforcement of identity and the preservation of diversity.

The roles that may be assumed by constitutionalism and constitutions in relation to the interplay between identity and diversity are complex and multifaceted. Furthermore, the relevant nexuses between identity and diversity are themselves numerous as well as fairly intricate. Strictly speaking, it is not a matter of any single identity emerging against a backdrop of multiple differences. Rather, issues concerning constitutionalism and constitutions arise in sociopolitical settings demarcated by clashes between competing identities. Among other identities, there are likely to be national, regional, linguistic, religious, ethnic, political, generational, class, and ideological identities.

Moreover, it is far from obvious how these competing identities ought to be combined or divided to frame the kind of interplay between identity and diversity that is likely to conform with the fundamental tenets of constitutionalism.

The pursuit of the central values embodied in constitutionalism only makes sense in relation to sociopolitical settings that can be construed as revolving around the two opposite poles of identity, and diversity or difference. Indeed, without some predominant identity, such as that of the sovereign nation or of the constitutional self, it is difficult to imagine how one could justify the imposition of a constitutional order. In contrast, if a sociopolitical setting were so homogeneous as to lack differences susceptible to becoming implicated in political conflicts, there would appear to be no need for imposing the kind of constraints usually associated with constitutionalism. More specifically, each of the three general features of constitutionalism identified above—namely, limited government, adherence to the rule of law, and protection of fundamental rights—acquires its legitimacy in relation to a sociopolitical reality oriented towards conflicting poles of identity and difference. Limited government is thus justified as a means to acknowledge, and profitably to make use of, the conflict produced by the confrontation between the partial identity and the partial schism that characterizes the relationship between the governors and the governed. Without partial identity—as in the case of foreign occupation—the government would lack constitutional legitimacy altogether; without significant difference, however, there would be no point in limiting government, as the governors would be indistinguishable from the governed.

Adherence to the rule of law also acquires particularly significant normative force in the context of a setting marked by the deployment of intricate links between partial identity and partial differentiation. Commitment to the rule of law evinces a determination to mark a firm demarcation between the generation of rules of conduct designed to regulate the governed, and the application of such rules to particular cases. This is usually accomplished through separation of the function of legislation, which is firmly and directly anchored in the realm of the political, from the function of adjudication, which is supposed to remain as removed as possible from the political arena. Application of a law to a particular case would lack legitimacy unless there were a partial identity between the persons involved in the particular case and the persons who achieve political expression through the legislative process (or at least through the legislative process as constrained by adherence to relevant constitutional norms). Alternatively, unless there were at least some partial differences between those who achieve political expression through legislation and those who are subject to such legislation, there would be no need for submission to the rule of law, as the will of the collectivity acting as one could achieve full realization through the political process.

Protection of fundamental rights, the third general feature of modern constitutionalism, also implies the existence of an ongoing tension between identity and difference. The difference involved is that between the individual citizen and the collectivity or ruling majority. Without that difference the individual would not really require protection against government intrusions into her zone of fundamental interests. Commitment to the protection of fundamental rights, however, generally implies at least two different though usually related kinds of identity. First, consensus concerning which rights ought to be deemed fundamental and hence granted constitutional protection bespeaks some measure of identity between the framers of a constitution and those subjected to the corresponding constitutional order. Second, beyond the latter identity (and even conceivably if the latter identity is lacking), there is another kind of identity that links together each member of society as a bearer of the same constitutional rights. For example, if a constitution postulates that all persons are entitled to equal respect and dignity, it generates a basis of identity among persons who may in several other respects conceive of themselves as being more different than alike.

As already mentioned, a working constitutional order must revolve around a predominant identity. For example, in the United States that identity, at least at the most abstract level, is that of "We, the People." Moreover, the predominant identity in question depends for its creation and maintenance on the operation of a process that simultaneously stresses certain identities and minimizes certain differences. Thus, for instance, in a society marked by the existence of ethnic homogeneity and religious diversity, the development of a viable constitutional identity might well depend on emphasizing ethnic pride, while at the same time downplaying religious differences. Furthermore, that part of the process under consideration which consists of valorizing certain identities may be driven either by an essentially inclusionary or a fundamentally exclusionary approach. An inclusionary approach searches for similarities that can serve to bind a group of people together. An exclusionary approach, in contrast, seeks to isolate and exploit certain differences in order to produce a negative association among all those who can draw a common identity because they are different from others who are marked by the differences involved. In short, a predominant constitutional identity may rely primarily on stressing certain identities or on emphasizing certain differences.

Not only are there different ways of putting together a predominant constitutional identity, but such identity is unlikely to be constructed at once or to remain unchanged over a substantial period of time. To illustrate this, let us return to "We, the People." First, it is not altogether clear who are the "We" or who are the "People." Second, it is not obvious what keeps this "We, the People" together. Moreover, that latter inquiry has both a spatial and a temporal dimension: it is not evident what keeps together the multiple and diverse population now located on American soil, and it is not readily apparent what preserves the fundamental identity of that population over the course of several generations.

Even if it were clear to whom "We, the People" refers, the nature of the predominant identity animating the United States Constitution could not be sufficiently delineated without a grasp of the relevant ways in which those who make up "We, the People" are bound to one another in order to form a unitary constitutional self. Curiously, the key source of the nature of the predominant American constitutional identity—namely, the proposition that "all men are created equal"—is not found in the Constitution but in the Declaration of Independence. In any event, by linking "We, the People" with "all men are created equal"—a proposition that is counterfactual to the extent that it postulates a moral equality among persons rather than refers to any particular factual equality—one can derive as the predominant constitutional identity that of a group of individuals who ought to relate to one another as moral equals.

Viewing "all men are created equal" in a historical perspective reveals an important dichotomy between the predominant constitutional identity promoted by American constitutionalism and that implied by the United States Constitution prior to the adoption of the Civil War amendments. Indeed, as David Richards indicates in his contribution, the authors of the Declaration of Independence intended "all men" to refer to blacks as well as to whites. Yet the United States Constitution of 1787, with its implicit recognition of slavery, can only be reconciled with the proposition that "all men are created equal" if the latter is understood as referring to whites but not to blacks. Accordingly, the predominant identity underlying American constitutionalism was at best only partially given expression by the 1787 Constitution. It would take over three quarters of a century and a bloody civil war before the constitution could be fully reconciled with the predominant identity which was supposed to shape the constitutional self of the American people.

Another important issue affecting the interplay between identity and diversity is raised by the dichotomy between "all men are created equal" taken in its broadest sense—as encompassing not only all men but also women—and taken in the restrictive sense susceptible of reconciliation with the 1787 Constitution. That issue concerns the role of equality in the context of modern constitutionalism.

The idea of equality is inextricably linked to modern constitutionalism, which emerged against the backdrop of absolutism and authoritarianism. Indeed, modern constitutionalism took root in opposition to the privileges of status and birth characteristic of the feudal order. Accordingly, modern constitutionalism requires a levelling of status-based hierarchies in favor of an order grounded on the premise that all human beings are equal, with an inherent capacity for moral choice, self-respect, and dignity. The equality inherent in modern constitutionalism, however, imposes constraints only at the highest levels of abstraction, and is thus consistent with a wide range of more concrete conceptions of equality, ranging from the libertarian paradigm to the most egalitarian paradigms. But even though it remains very abstract, the equality implicit in modern constitutionalism plays a major role in shaping the basic structure of a constitutional order that conforms to the dictates of constitutionalism. Indeed, while insufficient to determine the nature of the specific fundamental rights that ought to be constitutionalized, the abstract equality inherent in modern constitutionalism imposes the requirement that all individuals be constitutionally guaranteed the same fundamental rights. Accordingly, such abstract equality underlies at least one of three major requirements of modern constitutionalism, namely the constitutional protection of fundamental rights.

Equality is itself necessarily linked to the interplay between identity and difference, thus further tightening the complex nexus between that interplay and constitutionalism. There has been a general tendency to associate equality with identity and inequality or inferiority with difference. Thus, racial, gender, and religious differences, for example, have been used to impose badges of inferiority. In addition, at least as against those who are of a different race, gender, or religion, those who belong to the same race, gender, or religion, tend to treat one another as equal. Upon further analysis, it becomes clear that inequality can be perpetrated through promotion of a forced identity as much as it can through the exploitation of differences. For instance, in a bilingual society one may equally deny equal treatment to the members of a linguistic minority by discriminating against them and treating them as inferiors, or by forbidding all discrimination but forcing all citizens, including those who belong to the linguistic minority, to learn and use the dominant language. To comport with the requirements of equality, therefore, one should only make use of uncoerced identities.

Because of the long history of using certain differences as badges of inferiority, equality is often cast in terms of disregarding specific differences. Moreover, in the case of the abstract equality that inheres in modern constitutionalism, it is necessary to ignore all factual differences that distinguish one individual from the next in order to promote the counterfactual identity that goes hand in hand with equal moral worth. However, to the extent that modern constitutionalism requires, or is compatible with, the protection of fundamental equality rights involving conceptions of equality that are more concrete than those implied by abstract equality, merely disregarding certain differences would simply not do. Take, for example, religious differences. To be sure, these ought to be disregarded for purposes of assuring most basic civil and political rights. Nevertheless, there are certain equalities, such as the equality of each individual to freely exercise his own religion, which often require that religious differences be taken into account. Indeed, a generally applicable law may well have a disparate impact on different religions, inhibiting the practice of certain religions while not interfering with that of others. In that case, religious differences should ceteris paribus be taken into account to constrain application of the law in question to permit the adherents of all the religions involved to practice equally freely their chosen religion. Accordingly, considerations concerning equality as related to modern constitutionalism suggest that voluntarily assumed or accepted identities be taken into account, as well as differences, insofar as they are invoked for the purpose of enhancing the protection of fundamental interests. Alternatively, differences ought to be disregarded whenever drawing upon them would likely result in a dilution of constitutionally significant equality concerns.

Michel Rosenfeld is Professor of Law at the Benjamin N. Cardozo School of Law at Yeshiva University and codirector of the Cardozo-New School Project on Constitutionalism. He is the author of Affirmative Action and Justice and coeditor of Deconstruction and the Possibility of Justice and Hegel and Legal Theory.