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Crowd-Sourced Constitutionalism: Social Movements in the Constitutional Process

Constitutions are a fundamental element of the stable set of political opportunities that are often considered as particularly influential in defining the conditions for contentious politics, its characteristics and its outcomes. During transitions to democracy, progressive social movements push for constitutions that not only are more open to claims from below, but also provide for more channels of political participation (della Porta 2017a). Besides in transitions to democracy, especially in times of perceived challenges or opening of political opportunities, social movements contribute to creating constitutional moments. Crowd-sourced constitutions are defined in this chapter as constitutional processes prompted by grassroots mobilizations and involving citizens in constitution-making.

In order to address the role that the participation of citizens in processes of constitution-building can have, we must begin with a definition of constitutions. In conceptions of democracy, constitutions set up the main rules about the relations between citizens and the state, as well as among various state institutions. In this sense, constitutions have the important function of protecting the fundamental rights of minorities - constitutionalizing those rights so that they cannot be easily withdrawn by a temporary majority. In a recent conceptualization, constitutions have been defined as:

A legal order impacting on the exercise of political power that (a) contains an effectively established presumption of public rule in accordance with principles or conventions, expressed as law, that cannot easily (i.e. without societally unsettling controversy) be suspended; (b) is designed to constrain or restrict egregiously mandatory use of power in both public and private functions; (c) allocates powers within the state itself, and comprises some form of popular/political representation in respect of questions perceived as possessing importance for all politically relevant sectors of society; and (d) expresses a legal distinction between the form of the state and those persons assuming authority to borrow and enforce the power stored within the state. (Thornhill 2011, 10-11)

If social movement studies have rarely analysed their constitutional effects, constitution-making seems, for some time, to have moved out of the area of sociological inquiry altogether. As Thornhill (2011) noted, sociology itself promoted a critical view of power and order that went beyond its formal definition as deriving from constitutional law:

If the political centre of the Enlightenment lay in the belief that political institutions obtain legitimacy if they enshrine constitutional laws translating abstract notions of justice and personal dignity into legal and normative constraints for the use of public and private power, sociology was first formed as a diffuse and politically pluralistic body of literature that opposed this belief. Sociology first evolved as a discipline that sought to promote reflection on the legitimacy of socio-political orders by elucidating the ways in which societies produce inner reserves of cohesion, obligation and legitimacy, without accepting the simplified view that these reserves were generated, and could be reliably authorized, by spontaneous external acts of reason. At the centre of each of these theories was a negation of the principle that states acquire legitimacy from constitutional laws because these laws articulate simple promptings of universal reason to which states, in order to exercise their power in legitimate fashion, automatically owe compliance. (Thornhill 2011, 2)

When classical sociologists (such as Ferdinand Tönnies, Émile Durkheim and Max Weber) paid attention to constitutions, they located them within broader societal processes, within which they analysed the very origins of constitutions (Thornhill 2011).

While long forgotten in the social sciences, more recent sociological research has, however, addressed the evolution of constitutions and constitutionalism, with special attention to the challenges to processes of legitimation of political power. Indeed, a sociological approach has been promoted to analyse constitutions as developing through complex historical and functional processes, with constitutional moments presented as disjunctures (Thornhill 2011, 10).

In this sociological approach to constitutions, a Luhmanian interpretation has located constitutions within a process of functional differentiation that triggered the establishment of the political as a separate system. In particular, the historical evolution of constitutions is analysed as part of the formation of modern Western societies. In this vision, constitutions emerge and develop following intra-societal processes of functional articulation, with continuous differentiation in the functioning of societies and of political institutions. In these processes, constitutions regulate in particular the interactions and exchanges between different spheres of action, allowing the production and reproduction of power (Thornhill 2011, 372). At the onset, constitutions emerged as a legal set of norms that allowed states to acquire positive statutory functions by detaching their functions from the private sphere. In their evolution, modern constitutions granted states police power at the same time as constraining their range of intervention. In time, constitutions became guarantors of sovereignty and democratic procedure, constraining state power and separating it from external interference. In this process:

the primary norms of constitutional rule, in consequence, can be seen as adaptive dimensions of political power itself. These are institutions generated within power as power became progressively sensitive to highly differentiated societal environments, and as society as a whole, shaped by its functional extension and differentiation, created and encountered a need for more inclusive and autonomous capacities for using power. (Thornhill 2011, 373-4)

Besides this reflection on long-term social transformations, a recent wave of attention to constitutions was triggered by the observation of an increase in constitutional activities. In fact, a time of constitutional acceleration has been highlighted, with a growing recourse to constitution-making, but also constitutional updating (Palermo 2007). This has been even more the case in Europe, not only because of the integration process in the EU as well as the transition to democracy in Eastern Europe, but also more broadly as a recourse to constitutional changes in order to address the political consequences of the financial crisis and of broader transformation in the role of constitutions themselves, even in already established democracies. More generally, research has analysed the judicialization of democratic politics and legislation, with a more and more prominent role for Constitutional Courts in contemporary societies, and the fading away of parliamentary sovereignty, sometimes explained as oriented towards protecting international economic elites (Hirschl 2004; Thornhill 2012).

The EU constitutional process has in particular been defined as a highly judicialized process, with EU courts intervening in interstate treaties. In this way, 'the courts, applying rights, act as primary bearers of constitution-making power. In consolidating interstate treaties as basic norms for legislation and defining jurisprudential norms to support the supremacy of European law, they routinely perform the acts of public-legal norm production that are imputed in classical constitutional polities to constitutional legislators authorised by an identifiable demos' (Thornhill 2012, 356). Responses to the financial and political crises, with the delegation of decisions to opaque institutions (such as the Eurogroup), have, however, challenged that constitutional balance, thus jeopardizing stability in the long term and, with it, the very legitimacy of the EU project (Dawson and de Witte 2013).

The aforementioned constitutional acceleration also triggered new visions of constitutions, which, first of all, moved beyond legalist constitutionalism, recognizing their political character. While legal constitutionalism had singled out some sort of essential conditions for democracy, political constitutionalism highlighted instead the contested nature of rights: 'Despite widespread support for both constitutional rights and rights-based judicial review, theorists, politicians, lawyers and ordinary citizens frequently disagree over which rights merit or require such entrenchment, the legal form they should take, the best way of implementing them, their relationship to each other, and the manner in which courts should understand and uphold them' (Bellamy 2007, 16). In fact, challenging the definition of basic norms, political constitutionalists see the main constitutional functions as lying in the provision of a shared framework in order to resolve disagreements about the right and the good. In this perspective, constitutions are to be dynamic since those shared frameworks need to be continuously revised and updated. The constitution is therefore conceived not as an 'entrenched set of fundamental principles, but rather as the framework for the articulation of and deliberation over conceptions of self-government and the common good' (Blokker 2017, 36). In this view, constitutions are not constraints imposed upon democracy, but rather limits that mature democracies have to place upon themselves (Bellamy 2007, 91). Given their political character, constitutions are in continual...