Constitutionalism and Crisis

by

Angus Brown

Gonville and Caius College, Cambridge

The Gun, the Ship and the Pen: Warfare Constitutions and the Making of the Modern World, Profile Books.
by Linda Colley. Profile Books, 512 pages, £10.99.

Angus Brown is a PhD candidate in History at the University of Cambridge. His research focuses on debates on constitutional guardianship and constitution-making in the French and American Revoltuions, with a particular focus on the origins of constitutional courts and the legal doctrine of the Pouvoir Neutre. His research is jointly funded by funded by an AHRC Open Univeristy-Oxford-Cambdridge Doctoral Training Partnership and by the Gonville and Caius Gonville and Bauer Doctoral Studentship

Today, it is generally taken for granted that constitutionalism, liberalism, and political modernity are inextricably linked. When we think about modern democracy, we are thinking about constitutional democracy, in which the constitution acts as a limit on state power and a prerequisite for a stable, broadly free, political regime. If not a sufficient condition for democratic government, then the adoption of a constitution is nevertheless usually seen as a definite step in the right direction. Not so, argues Linda Colley in her latest book, The Gun, the Ship and the Pen: Warfare Constitutions and the Making of the Modern World, which sets out to challenge “a lingering notion that written constitutionalism has been invariably benevolent and normally acted as a liberating force.”

 

In particular, Colley is keen to puncture self-assured liberal democratic notions about both the origins and political function of written constitutions. Instead, she presents a sweeping new history of global constitutionalism as a ‘political technology’, whose noble ideological underpinnings are coterminous with a history of war, empire-building, and oppression. As the title of the book suggests, warfare plays a central role in Colley’s narrative. In her telling, the rapid spread of written constitutionalism beginning in the mid-18th century was principally a product not of liberal principle, but of the technological and military advancements of the period, which unleashed a new and globalised ‘hybrid’ mode of warfare

Oscar Wergeland, 1814, 1885.jpeg

Norwegian Constitutional Assembly 1814, Oscar Wergeland, oil on canvas, 1885

This had a dual effect: on the one hand, the growing frequency of warfare destabilised polities across the world, generating pressures for regime change and state formation for states to survive in a competitive international environment. On the other, the growing scope of ‘hybrid warfare’, and the spiralling cost of supporting the vast new armies and navies fielded by the European powers, generated pressure for rulers to make concessions to their subjects particularly around taxation, representation, and participation in government. If men were going to sacrifice their lives and fortunes for the state, they increasingly demanded a say in how it would be run. Or, as Max Weber put it, in the new world of hybrid warfare, states were “compelled to secure the cooperation of the non-aristocratic masses and hence put arms, and along with arms political power, into their hands.” 

 

As Colley acknowledges, this thesis owes a considerable amount to the America sociologist Charles Tilly’s* famous thesis that war makes states and states make war, as well as long-running debates in both history and political science on the emergence of representative government in Britain as a concession made by the state to secure higher tax revenues. But, going beyond these works, she supports this thesis with a historical narrative which is stunning in its combination of world-historical breadth and granular detail. As she shows, the spread of both written constitutionalism and hybrid warfare occurred in four waves.

The first wave began in the mid 18th-century, as rulers like Catherine II of Russia, Frederick II of Prussia, and other so-called ‘Enlightened Absolutists’ propagated law codes which Colley characterises as ‘proto-constitutional’ as part of broader modernising projects designed to retool their states for the new world of mass warfare. The second, came in the wake of the Seven Years War, with the wave of canonical ‘Atlantic Revolutions’. This wave began in Britain’s Thirteen North American Colonies in the 1770s, and spread to Europe in the 1790s with the French Revolution and Napoleonic Wars, before returning to the Americas with the collapse of the Spanish Empire in the early 19th-century. 

Granting of the Constitution of the Duchy of Warsaw by Napoleon _ National Museum in Warsa

Napoleon issuing the Constitution of the Duchy of Warsaw, Marcello Bacciarelli, oil on canvas, 1811

The third wave, stretching from the middle of the 19th-century to the end of the 20th, was characterised by both the formation of new national states in Europe like Germany and Italy and the growing impact of Western imperial warfare in Asia. States like Japan and China now sought to ‘Westernise’, aping an idealised model of Euro-American development, including the adoption of written constitutions. Finally, the collapse of the European imperial world order from 1914-1945 produced a fourth wave of constitution-making, generated by the collapse of the vast multi-ethnic empires of Europe, and by decolonisation in Africa and Asia. 

 

In all four stages, a growing global print culture facilitated the spread of new constitutional ideas. Intercontinental travel and communication, meanwhile, generated networks of writers, activists, international revolutionaries and soldiers of fortune who variously took advantage of conflict and crisis to in service of their constitutional dreams. Whilst frequently outlining how canonical historical figures like Bentham and Bolívar responded to one another in this new world, Colley also illuminates the lives of lesser-known figures. Some of the most fascinating sections of the book are thumbnail sketches of figures like Nikita Muravyov, a Russian soldier and friend of Benjamin Constant in occupied Paris in the 1810s, who would become a leader of Russia’s ‘Decemberist’ revolt in 1825, or of unexpected influences like that of the Mexican revolutionary Augustín de Iturbide on James Silk Buckingham and Ramohan Roy, proprietors from 1818-1823 of the liberal Indian nationalist Calcutta Journal

Henry Christophe, King of Haiti, c. 1816.jpeg

Portrait of Henry Christophe, King of Haiti, Richard Evans, oil on canvas, 1818

Along the way, Colley is keen to stress the stories of “those not meant to win, [and] those unwilling to lose”, as the title of her sixth chapter so elegantly puts it. As she shows, this militarist and imperial process of constitutional dissemination had as many losers as winners. Though the rise of mass warfare, conscription, and the tax-based ‘warfare state’ saw the extension of suffrage to more and more of the male population, women’s exclusion from warfare meant that emergent constitutional rights were strictly gendered. Often, indeed, the regularisation of voting laws and the extension of the franchise to poor men was accompanied by new restrictions on the rights of women. 

 

Likewise, constitutions often served as instruments of empire-building. A written constitution could often legitimate and enhance state power, bolstering authoritarian regimes like Napoleon’s empire, or Símon Bolívar’s rule in Gran Colombia. So too, were constitutions often deployed to secure colonial expansion, as in the United States, where state constitutions were often used as a means of asserting settlers’ sovereignty over Native land, or Singapore where Sir Thomas Stamford Raffles produced a constitution designed to turn the city into a civilised, productive, imperial outpost. The famously liberal 1812 Spanish Constitution of Cádiz likewise dramatically extended the franchise to Spain’s imperial subjects whilst binding them into an explicitly and exclusively Catholic and imperial political order. 

print-arthur-beardmore-103-650729.jpeg

Print of Arthur Beardmore, at the moment of his arrest, teaching his son Magna Carta, James Watson, print, 1765

If, as Colley demonstrates, constitutionalism was often also wielded by the oppressed peoples of the world to resist these pressures, these stories are tragic as often as they are hopeful, as she deftly shows in a striking vignette about James Africanus Horton Beale. Beale, an African-born doctor, British colonial officer, West African constitution-maker, millionaire stock market speculator, and perhaps advocate for women’s suffrage, attempted in the late 19th-century to create a federation of African constitutional states, sometimes with British support. But his ambitions ultimately foundered in the face of the ‘Scramble for Africa’ of the late 19th-century, as so many similar efforts at indigenous anti-colonial constitution-making did. 

 

These insights are undeniably important today, even though we so often characterise ours as an age of constitutional erosion or dissolution. In the last decade, considerable ink has been spilled over the efforts of demagogues and aspiring authoritarians to subvert constitutions and legal orders in the pursuit of power. Less time, however, has been spent on public discussion of how anti-democratic forces use this archetypically liberal political technology to their benefit. Yet as a substantial literature in political science has shown, authoritarian regimes often combine undemocratic rule with democratic institutions in pursuit of legitimacy and stability, and in order to ‘legiblise’ political opposition by funnelling it into a controlled electoral process. 

Constitution du 22 frimaire an VIII.jpeg

French Constitution of year VIII (13 December 1799), Page 3, Located in the French National Archives

This was a model pioneered by Napoleon, but it pertains equally to Vladimir Putin’s Russia and Viktor Orbàn’s Hungary. In failing to recognise the illiberal possibilities of constitutionalism, we are unable to counter the mobilisation of constitutionalism rhetoric by these regimes in service of distinctly authoritarian ends. Similarly, the assault on democracy in the United States today has been affected as much through the exploitation of the anti-majoritarian features of the American constitution as through attempts to undermine it. As the rise of 21st-century populist strongmen has demonstrated, moreover, constitutional devices sometimes intimately associated with ‘democracy’, particularly referenda, can often be wielded to provide the plebiscitary legitimacy these figures need to circumvent genuinely constitutional politics. 

 

Likewise, the technological transformations of the 21st-century have created an environment both conducive to and dangerous for constitutionalism. The internet is a signal example: although this revolutionary technology is discussed in only one brief and platitudinous paragraph in the book’s conclusion, its potential as an agent of rapid political change with greater speed and range than the printing press is extraordinary. But, as the events of the abortive democratic revolutions of the Arab Spring revealed, the dissemination of political ideas facilitated by the internet can lead to immense destabilisation, and a rapid slide from initial optimism into disaster. 

 

But if these crises present serious challenges to modern constitutionalism, they also highlight the urgency of a revitalised democratic constitutionalism. Indeed, whilst Colley is right to challenge liberal myths that constitutionalism is, in itself, inherently good, and to show how, throughout history, constitutions have been exploited to oppressive ends, in doing so she at times downplays the emancipatory role of a democratically authored, codified, constitution. If the United States Constitution and Bismarck’s German Constitution, or the Meiji Constitution in Japan, or even Catherine the Great’s Nakaz of 1767 are all alike in the sense that they provide codified charters of the institutional structures of the state, only the former does so on the principle of the people’s power. 

 

Indeed, in her description of the writing of the US Constitution, Colley is keen to stress that this process was elite-led and top-down in order to place it in continuity with earlier centralised, reforming, law codes created in Europe. In so doing, however, she misses the American founders’ seminal contribution to constitutional history, and to the birth of modern democracy: that the constitution was ratified not from above, but by a national process of deliberation and on the basis of the will of the people. As Richard Tuck argued in his 2017 book The Sleeping Sovereign, the very foundation of modern democracy lies in the ability of the people to exercise sovereignty through a popular process of constitutional creation and reform. 

S.M.I. o Senhor D. Pedro restituindo sua Augusta Filha a Senhora D. Maria Segunda e a Cart

Constitutional of Portugal (Peter I with his daughter D. Maria II and the Portuguese Constitution of 1826 - lithography). c. 1832

Nonetheless, where democratically authorised constitutions become ossified and impossible to reform to meet the needs of the people and the age, they too can cease to be tools of liberation and become fetters on the people’s will. In the United States, for example, no one born after the constitution was last amended in 1992 has had any say on the fundamental laws under which they live, and the majority of the constitution has remained unchanged for over two centuries. As Colley provocatively argues in her conclusion, if we wish for constitutions to form the bulwark of our freedom, we must be willing to challenge and change them. In doing so, we might be advised to move beyond the reification of the United States as the ideal-type of the constitutional state, and question how well its largely static constitution functions in the 21st-century.

 

Nor should we forget the power of constitutions as expressions of our highest emancipatory aspirations, even if in practice we often fail to live up to them. A constitution is not only a body of particular constitutional laws, but also the profession of a certain set of ideals about how we wish to live together, and a beacon of hope in an often cruel and oppressive world. That this is, and always has been, the case is demonstrated best by Colley by way of a vignette from the life of Mary Wollstonecraft who, in 1794, amidst the violence of revolutionary Paris could nonetheless write hopefully that: “A constitution is a standard for the people to rally round. It is the pillar of government, the bond of all social unity and order. The investigation of its principles make it a fountain of light; from which issue the rays of reason, that gradually bring forward the mental powers of the whole community.” 

 

Colley does not shy away from showing constitutionalism’s darker legacies, but she also illuminates its radical potential as a force of liberation and inspiration for the oppressed of the world. Insofar as she does, we can find few better guides to recapturing the constitutional and political optimism which so inspired Wollstonecraft than this book. 

*Charles Tilly, Professor of Social Science, University of Michigan, 1969-84, and, subsequently, Columbia University 

Background painting is The Education of the Children of Clovis, Lawrence Alma-Tadema, 1861