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experience of the end of the eighteenth century, have been thinking that
they could and even ought to write down a constitution and they did. To
be sure, a customary (vulgo unwritten) constitution still exists in the
United Kingdom, a constitution made up by a mix of written statutes
and conventions, as A.V. Dicey used to say. 3 Still this remnant of a
venerable medieval legal culture is only an important exception, which
was able, from inside a monarchical regime and the structure of a
“mixed government” that characterized the “Old English Constitution,”
to develop a longstanding form of democratic representative
government. Nonetheless, the constitutional world of the twenty-first
century from Ireland to China is one of written and quasi-universally
rigid 4 constitutions. The ambiguity of the word constitution, evident
from these few sentences, is worth some conceptual and historical
inquiry in order to avoid misunderstandings or purely verbal disputes.
To clarify these ambiguities we can start considering two texts,
which use the same word in the title: the first one encompasses the
Constitution of the United States. The other, written twenty-three
centuries ago by Aristotle—or more likely by one of his students—and
fortunately rediscovered in the sands of Egypt in the nineteenth
century—is named, in Greek, the Athenaion politeia—and is often
translated, in English, like in other languages, the Constitution of
Athens. 5 The same word appears in the title of these two texts. Does this
word design the same object/reality? Not quite!
These two texts represent a good example of the ambiguity and
multiple meanings of a word and concept crucial to us, and I intend to
discuss them in this Article. 6
A. Constitution A—Modern
3 See ALBERT VENN DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE
CONSTITUTION 277 & n.25 (Roger Michener ed., 8th ed. 1982).
4 See infra Part II.
5 It has often been disputed whether the word “constitution” is the best or simply the
correct translation of the Greek politeia. I do not need to enter, for now, into details about this
philological question. But it has to be said that “regime” and “form of government” are possible
(and perhaps better) translations of the Greek term. See infra Parts I.B, II for a discussion of the
multiple meanings of the term in the Aristotelian language.
6 The most important theoretical/historical enquiry concerning the concept of constitution
is still to this day that written by Carl Schmitt. See CARL SCHMITT, VERFASSUNGSLEHRE (1928),
translated in CARL SCHMITT, CONSTITUTIONAL THEORY (Jeffrey Seitzer ed. & trans., 2008).
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7 There are evidently always exceptions in these attempts at conceptual definitions, which
use Weberian Ideal types.
8 U.S. CONST. amends. XIII–XV. These amendments are known as the Post-Civil War
amendments.
9 U.S. CONST. amend. XIX. This amendment is known as the Woman Suffrage
Amendment.
10 Gerald Stourzh, in his important article, quotes an interesting text from 1776 from the
resolves of the Concord, Massachusetts town meeting, where we read: “We conceive that a
Constitution in its proper idea intends a system of principles established to secure the subject in
the Possession and enjoyment of their rights and privileges, against any encroachments of the
governing part.” Gerald Stourzh, Constitution: Changing Meanings of the Term from the Early
Seventeenth to the Late Eighteenth Century, in CONCEPTUAL CHANGE AND THE CONSTITUTION
35, 46 (Terence Ball & J.G.A. Pocock eds., 1988).
11 This doctrine is obsolete in its classical formulation and, in my opinion, needs to be
reconsidered.
12 I use the plural (branches) since constitutions in the sense I’m considering here
describe/prescribe polyarchy. See DÉCLARATION DES DROITS DE L'HOMME ET DU CITOYEN
[DECLARATION OF THE RIGHTS OF MAN AND THE CITIZEN] art. 16 (1789) (claiming that without
“separation of powers” there is no constitution).
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18 I cannot discuss this very complex question here. Generally speaking, I believe we can
distinguish between: 1) protection, enforcement, and development of citizens’ rights [see for
instance the two decisions of the French Constitutional Council on détention de sécurité and
internet], see Conseil constitutionnel [CC] [Constitutional Court] decision No. 2009-580DC,
June 10, 2009, Rec. 107; Conseil constitutionnel [CC] [Constitutional Court] decision No. 2008-
562DC, Feb. 21, 2008, Rec. 89, and 2) Organtreit (conflicts among organs of the government),
see Corte Cost. 18 gennaio 1996, n.7, Foro. it. 1996, I, 386 (It.), available at http://www.jus.
unitn.it/cardozo/review/Constitutional/CorteCost/Sent-7-96/mnc1.html.
19 See BENEDETTO CROCE, LA RIVOLUZIONE NAPOLETANA DEL 1799: BIOGRAFIE, RACCONTI,
RICERCHE (3d ed. 1912).
20 See, e.g., U.S. CONST. art. V (requiring super-majorities to propose and ratify an
amendment to the U.S. Constitution).
21 New Zealand, for example.
22 For instance, United Kingdom and Netherlands.
23 Israel—like the Third French Republic in the past—has no single text called a
constitution, but has written constitutional laws. For a discussion of Israeli constitutional laws,
see CLAUDE KLEIN, LA DÉMOCRATIE D’ISRAËL (1997).
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24 GEORGE LAWSON, POLITICA SACRA ET CIVILIS 34–35 (Conal Condren ed., Cambridge
Univ. Press 1992) (1678) (explaining that the real sovereignty (majestas realis), consisting of the
power of constitution, is granted to the community).
25 FILLIPO MAZZEI, RECHERCHES: HISTORIQUES ET POLITIQUES SUR LES ETATS-UNIS 43–44
(1788) (speaking of “pouvoir constitutionnel” and adding: “Il est clair que si la puissance
législative ordinaire pouvoit déroger à la constitution, les fondemens du gouvernement seroient
toujours peu sûrs.”).
26 See MOGENS HERMAN HANSEN, THE ATHENIAN DEMOCRACY IN THE AGE OF
DEMOSTHENES: STRUCTURE, PRINCIPLES, AND IDEOLOGY (J.A. Crook trans., 1991) (providing
the remarks on Aristotle and the hierarchy between nomoi, the constitutional norms
concerning the structure of the Athenian democracy, and psephismata, the decisions of the
people’s assembly).
27 EMMANUEL SIEYES, RECONNAISSANCE ET EXPOSITION RAISONNEE DES DROITS DE
L’HOMME ET DU CITOYEN (1789), reprinted in 1 ORATEURS DE LA REVOLUTION FRANÇAISE, LES
CONSTITUTANTS 1013 (François Furet & Ran Halévy eds., 1989).
The ancients surely knew of “legislators,” but they were often mythical figures like Minos
or Lycurgus, and Solon himself. See ARISTOTLE, POLITICS. Still, Rousseau spoke of the
“législateur” as a sort of individual constituent power. See JEAN-JACQUES ROUSSEAU, THE
SOCIAL CONTRACT bk. 2, ch. 7 (1762).
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B. Constitution B—Ancient
28 See J.H.H. Weiler, In Defense of the Status Quo: Europe’s Constitutional Sonderweg, in
EUROPEAN CONSTITUTIONALISM BEYOND THE STATE 7, 23 (J.H.H. Weiler & Marlene Wind
eds., 2003); see generally J.H.H. WEILER, THE CONSTITUTION OF EUROPE (1999).
29 At that time, the meaning of this position was the defense of the constitutional status quo
against the changes induced by the French Revolution!
30 JOSEPH DE MAISTRE, ESSAY ON THE GENERATIVE PRINCIPLE OF POLITICAL
CONSTITUTIONS (1810), reprinted in SCHOLARS’ FACSIMILES & REPRINTS 25 (Boston, Little, &
Brown 2d prtg. 1977) (1847). The original French book was published in 1810 in St. Petersburg,
where de Maistre was ambassador to the Czar’s court for the King of Sardinia and Piedmont.
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31 See generally ARISTOTLE, CONSTITUTION OF ATHENS (John Edwin Sandys ed. & trans.,
London, MacMillan & Co. 1893) (328 B.C.).
32 FERDINAND LASSALLE, ÜBER VERFASSUNGSWESEN (1862). A partial English translation
can be found at http://www.marxists.org/history/etol/newspape/fi/vol03/no01/lassalle.htm.
33 Alternatively, it may take a long time to become objectively relevant, as was, for instance,
the case of the French constitutional revolution, which took at least one century to become
significantly descriptive of the reality, from 1789 to the Third Republic.
34 Adrian Vermeule pushed me to think about this question.
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***
35 We have to notice, though, that the written, normative constitutions most of the time are
not nothing! I mean that if they were nothing, there would be no reason to change them. There
are extreme cases were they are almost nothing. But I do not believe they are nothing at all. In
Nazi Germany the constitution (the Weimar Reichsverfassung), which was never formally
abrogated, was de facto irrelevant, but it was respected formally, at the beginning at least, to
avoid criticisms from the democratic countries and perhaps also to stay away from the
opposition of a legalist public opinion, such as the German one. In Stalinist Russia, the
constitution was also irrelevant, but if we look at China nowadays I could show that the
Chinese constitution has a real function. See infra Part II.
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41 See JEAN LOUIS DELOLME, THE CONSTITUTION OF ENGLAND (1775); J. POCOCK, THE
ANCIENT CONSTITUTION AND THE FEUDAL LAW: A STUDY OF ENGLISH HISTORICAL THOUGHT
IN THE SEVENTEENTH CENTURY (1957).
42 On Israel, see CLAUDE KLEIN, ISRAËL: ETAT EN QUETE D’IDENTITE (1999); CLAUDE
KLEIN, THEORIE ET PRATIQUE DU POUVOIR CONSTITUANT 49 (1996).
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unwritten convention. Hence we can assume that writing down the rule
could produce clearer evidence of a breach and produce a more obvious
signal of the responsibility of the party that transgresses the rule. It is a
different and more complex question to determine if this signal would
be a guarantee of a greater respect of the rule or of the agreement
underlying it. But I am focusing here on the reasons for writing down a
constitution, not a systematic inquiry concerning its effects. I’ll come
back to an importantly related question later on.
There exists a second reason for writing down a Konstitution.
Sometimes, political order is not traditional or based on an old (real or
fictitious) constitution in the ancient sense of the term, Verfassung.
Sometimes a “revolution” does not have the meaning of the English
Glorious Revolution, a coming back to the previous just political order,
but “revolution,” as we are used to thinking since 1789, is instead a
break with the past (an ancient regime) and the beginning of a new
political order. 43 Now, in that case a written constitution is a signal, a
sign, and a manifesto of the new order; both a death declaration (of the
ancient regime) and the trumpet of the new world; at the same time a
pledge and a hope, but also a chart organizing (proposing the
organization of) governmental power.
We may want to add a third category, or a different reason to write
a Konstitution, based on the case of the U.S. Constitution which ratified
the “closer union” of a group of previously loosely confederate political
entities, the ancient colonies of North America.
The classical dichotomy I just summarized—written vs. unwritten
or customary constitutions—came under attack as marginal and
irrelevant by James Bryce at the end of the nineteenth century, who
suggested replacing it with the alternative dichotomy presented in the
title of his essay, a bipartition which is presently commonly accepted. 44 I
do not need to reproduce Bryce’s argument in detail. The core of his
thesis, which originates the dichotomy, asserts a procedural quality, a
legal norm—“rigidity”—meaning the prohibition for the elected
legislative representatives to modify through majority rule the written
text called constitution. This constraint upon the elected majority and
its power—the one imposed for instance by Article V of the American
Constitution upon the majority of the Congress—is the distinctive
element of a rigid constitution. 45 In the absence of this meta-rule, the
constitution, written or customary, is flexible. Therefore, a
46 See BRYCE, supra note 38, at 5–7. For an updated analysis, see Dag Anckar & Lauri
Karvonen, Constitutional Amendment Methods in the Democracies of the World, Paper
Delivered at the 13th Nordic Political Science Congress (Aug. 15–17, 2002) (on file with the
author).
47 Id. at 8 (emphasis added).
48 Id.
49 This thesis is evidently unappealing to those who believe that the constitution is “prole
senza madre creata,” a creature that has no mother!
50 BRYCE, supra note 38, at 72–77.
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51 The Act of Settlement and the Septennial Act are examples of this contrast. This absence
of hierarchy doesn’t stand from the point of view of the Kelsenian doctrine of the validity of
norms. The United Kingdom, too, has a “material constitution,” a set of norms regulating the
procedures by which to enact norms, which is the foundation of the validity of Parliamentary
acts. Moreover, we could claim that there is normally an implicit hierarchy between a
parliamentary act and a convention of the constitution. Further, it is likely much more difficult
and rare to modify a convention by an act of the Parliament in England than it is to amend the
U.S. Constitution or to write a new constitution in France.
52 Only the modern post-Hobbesian (more specifically, Lockian) theory of the structure of
government can formulate the hypothesis of a “principal” (constituent power) superior to its
“agent” (constituted power).
53 The majoritarian sense.
54 Like fox hunting, abolished only by the “Hunting Act 2004” because of the stubborn
opposition of the House of Lords. See Hunting Act, 2004, c. 37 (Eng. & Wales).
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57 We may want to include constitutional conventions inside the legal order (like positivists
tend to do), but this is just a nominalist/definitional move that changes nothing as to the
substance of the problem I’m discussing here.
58 Elster, Political Norms, supra note 39; see also Elster, Norms, supra note 39.
59 See generally JON ELSTER, EXPLAINING SOCIAL BEHAVIOR: MORE NUTS AND BOLTS FOR
THE SOCIAL SCIENCES (2007); Elster, Norms, supra note 39.
60 In absence of that, the system is not based on the rule of law but is despotic.
61 This is reminiscent of Montesquieu’s definition of freedom/liberty:
In governments, that is, in societies directed by laws, liberty can consist only in the
power of doing what we ought to will, and in not being constrained to do what we
ought not to will. We must have continually present to our minds the difference
between independence and liberty. Liberty is a right of doing whatever the laws
permit, and if a citizen could do what they forbid he would be no longer possessed of
liberty, because all his fellow-citizens would have the same power.
MONTESQUIEU, THE SPIRIT OF LAWS 161 (J.V. Prichard ed., Thomas Nugent trans., G. Bell &
Sons 1914) (1748).
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62 For my discussion of this topic in another article, see Pasquale Pasquino, Rigidity of a
Unilateral Constitution: Takes the CCP the Constitution Seriously?, in MODELLI GIURIDICI
EUROPEI NELLA CINA CONTEMPORANEA 210 (Gianmaria Ajani ed., 2009).
63 Its article 64 reads:
the loi (parliamentary statute) and the constitution, which are both at
the same hierarchical level, since they are both supposed to be the
expression of the “general will.” So in China nowadays, as with all the
rigid constitutions of the nineteenth century (with the partial exception
of the U.S. and Norway), the constitutional rigidity and the hierarchy of
norms is in the best case a bit of legal theory, but not at all an element of
the legal and political reality. The enemies of private property in Beijing
were not worried because of the constitutional amendment of 2004,
wrongly so because they did not understand its signaling function. What
made them nervous was the simple statute, which is perfectly
understandable. What happens if the Chinese constitution is
transgressed? From a legal point of view, pretty much nothing. On the
contrary, if there is an ordinary statute protecting private property and
this statute is violated, one can sue the culprit of the breach of law in
court.
So in what sense is a constitution rigid, if there is no legal
consequence of its violation? 64 The only consequence is exactly the same
as that incurred from a violation of a convention under a customary
constitution: other political actors can oppose and punish the author of
the violation. This is what happened in England at the time of the Great
Rebellion when the Stuarts attacked the Ancient English Constitution. In
democratic systems, at the end of the day, the voters (the electoral
mandate) act as a court adjudicating the conflict.
Under closer scrutiny, Bryce’s dichotomy seems to evaporate. This
is the reason I would suggest an alternative dichotomy.
CONCLUSION
65 When the Constitutional Council started to control enacted laws, and not only the
approved statutes before their promulgation.
66 On this legal institution, see HANSEN, supra note 26, at 205–18.
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Figure 1