Constitutionalism: Nation, Culture, and Constitutions

In 1989, the Berlin Wall came down. In 1991, the Soviet Union came to an end, and apartheid was abolished in South Africa. The next year, 1992, Francis Fukuyama wrote The End of History and the Last Man. In that book, Fukuyama wrote that we were witnessing, not just the end of the Cold War, but the “universalization of Western liberal democracy as the final form of human government.” During those same years, I spent time comparing notes with drafters at work on new constitutions in post-communist Central and Eastern Europe. Hopeful of their countries’ being readmitted to the family of western democracies, those drafters hewed closely to western principles of liberal constitutional democracy. Those principles included such fundamentals as free and fair elections, a free press, independent courts, and constitutional supremacy. Drafters drew heavily on international norms as reflected in such documents as the Universal Declaration of Human Rights and the European Convention of Human Rights, as well as important western constitutions such as Germany’s Basic Law of 1949. Today, how different things look. The widely shared optimism about the global spread of liberal constitutional democracy has been undermined by nationalism, populism, and xenophobia in many parts of the world. We reckon now with the aggressive assertion of national interests in Putin’s Russia and in China. British voters have given us Brexit, and Scottish nationalists urge a second referendum on independence. Far-right parties unsettle European politics. In Hungary, one party has a two-thirds majority in Parliament and has been dismantling many of the post-communist era guarantees, undermining the judiciary and press freedoms. In the United States, the recent presidential election reminded us of the force of populism and nationalism. This picture informs the purpose of this seminar on Constitutionalism. It will examine the extent to which constitutions and constitutionalism reflect the history, traditions, culture, and politics of a particular people. When people talk about their “nation,” what are they talking about? How do they give voice, in their constitutional arrangements, to national impulses and aspirations? Using Anglo-American constitutionalism as a point of reference, we will consider what other countries do. We will take up several case studies of specific countries, such as Turkey (from Ataturk to Erdogan) and the United Kingdom in the wake of Brexit. As a sidebar, we will consider, in the domestic American constitutional context, the nearest counterpart to the idea of nation -- the place of community values. These arise in such cases as those involving obscenity, church and state, and cruel and unusual punishment. Also worthy of attention are American state constitutions. Unlike the Federal Constitution, the state documents are periodically revised and easily amended. Thus, state constitutions and court decisions interpreting them remind us of the influence of local culture and politics on American constitutional development.