By Matt Gordon, Juris Doctor Candidate (2015), Northwestern University School of Law
Constitutions do not exist in a vacuum but are the unique product of specific socio-cultural circumstances. Yet labeling constitutions is a popular and pervasive exercise among those attempting to categorize these complex documents.. Can one effectively label things as diverse and unique as constitutions? And further, before labeling and categorizing constitutions across social, cultural, and political lines, how should “constitution” be defined in the first place?
Different scholars have taken very different approaches to defining and discussing constitutional labels: Nathan Brown has defined constitutions as “basic legal framework[s] for governing,” Giovanni Sartori has argued constitutions are much more intricate than solely governance-structuring documents, with socio-cultural understanding and definitions ebbing and flowing over time, and Joseph Raz has used seven distinct “features” to define constitutions. In comparing these scholars’ analyses, it is crucial to note the socio-political context within which each analysis operates. Sartori wrote Constitutionalism: A Preliminary Discussion in the early 1960s, during the Cold War. Consequently, his writing’s tenor differs substantively and stylistically from Nathan Brown’s 21st century take on constitutions in nonconstitutional worlds and Raz’s even more recent publication on authority and interpretation.
Sartori fought to preserve the meaning and power of the label constitution. He identified certain normative characteristics of constitutions—power-limiting and rights-protecting—to help societies across the globe avoid improperly granting credibility to sham or nominal constitutions, whose real purpose is often entrenching autocratic rule. Thus, nominal constitutions may contain similar means as liberal democratic (or “true”) constitutions, occasionally including rights provisions and a blueprint for governmental structure, but they lack similar ends: the implementation of popularly supported rule that provides a coherent system for legitimate and limited governance and rights protection.
Constitutional analysis is a weighty process, but it contains a deceptively simple overarching lesson—don’t judge a constitution by its cover. Thus, while I agree with Sartori’s emphasis on carefully and correctly defining constitutions to prevent granting unwarranted legitimacy to poorly-intentioned regimes, given the difficulty in defining “constitution” and the word’s shifting meaning throughout history, I recommend attempting to deconstruct constitutions through a number of important variables. Rather than focusing on the broad definition of constitution and general, more difficult to define terms, like “democracy” and “façade,” interpreters should first assess constitutional variables, such as Constitution X’s ratification process, protection of human rights and religious freedom, governmental limitations, representativeness, and so on. By employing microanalysis before making macro-conclusions, interpreters may more easily and effectively compare, contrast, and understand the world’s varied constitutions.
Labels are powerful. Once meaning attaches to an object, group, or idea, such meaning often supersedes subsequent name or label changes. As words and ideas mean different things to different people at different times, students and scholars alike should avoid attaching broad labels to constitutions and other powerful words or concepts, instead, seeking individualized meaning within each foundational document.