A Constitution between past and future.

• Author: Scheppele, Kim Lane

Constitutions tend to be written at momentous turning points in a country's history. A war is lost; (1) an empire is vanquished; (2) an old order is overturned; (3) a dictator dies; (4) an authoritarian government is forced to step aside; (5) a mass public seizes the reins of power from the few who guided the state. (6) These sorts of events typically trigger the creation of constituent assemblies to write new constitutions because such events create a political discontinuity into which a new blueprint showing how the affairs of state will be organized thereafter may be inserted. Constitutions, then, are rarely written at moments of continuous tranquility in the life of a state, but instead at moments of political crisis, or at least in moments of political dishevelment. New constitutions are often envisioned not only as devices to get a state through a crisis but also as great opportunities for progress, which generally means that these legal governing documents are portrayed as platforms for launching new futures. As Ulrich Preuss writes, "The idea of a constitution ... was greeted enthusiastically at the hour of its birth as the fulfillment of all hopes for political progress...." (7) Constitutions, when they succeed, "exert a beneficial pressure on society to rationalize and improve itself." (8) Because the explicit aim of constitutions generally is to improve upon an existing condition, the faces of constitution drafters are almost invariably imagined to be turned toward the future, bright with hope.

What this Essay suggests, however, is that constitution drafters invariably look even more toward a past than they do toward a future. In fact, this is impossible to avoid. Constitution drafters know about the past experiences of their country and its people; these drafters are usually selected for the constituent assembly or other constitution-drafting body precisely because of their roles in the immediate past crisis that provided the opportunity for a new constitution. (9) What they do not know, and in fact cannot know, is the future. If they are well-prepared--and many constitution drafters prepare themselves for their tasks with extensive research (10)--all they can be informed about is what has already happened, not what is yet to come.

Constitutional theory, in my view, needs to take on board this basic observation: Constitutions in their moments of creation cannot be inspired solely by imagined futures. Perhaps even more crucially, they encode imagined pasts. (11) Though they may look abroad for models, constitution drafters ultimately understand and react most of all to what they take to be the crucial histories of their own countries. In this Essay, I make the case for reclaiming the pre-constitutional past as a matter of constitutional inquiry. In doing so, I will use Hannah Arendt's works--her preface from Beyond Past and Future (12) as well as her concurrently published book-length study of constitutions, On Revolution (13)--as both inspiration and foil. Keenly aware of the uses of history in constitution writing, Arendt nonetheless overstates both the certainty with which constitution drafters know this past and the confidence with which they deploy it. Arendt, tellingly, invokes Franz Kafka to make her point, (14) but, as I will show, a re-reading of Kafka permits us to imagine a more equivocal treatment of the past in imagining a future, no less important for the hesitancy and controversy with which those in the present understand that past. (15) Kafka's insights can help us to correct Arendt's overreach, in which she emphasizes the immediate decisiveness of constitutional moments. Instead, as I will show, constitutional moments can only appear to be decisive after the fact. At the time of constitutional drafting, too much is uncertain for constitution drafters to feel decisive and confident.

1. ARENDT'S MEN OF THE RESISTANCE

   In the preface to her collection of essays, Between Past and Future, (16) Hannah Arendt evoked the experience of participants in the French Resistance during the Second World War. In joining the Resistance, they found an unprecedented intensity and meaning in life. (17) The excitement and danger of belonging to the Resistance removed all of the trappings of status from their prior lives; they were equals fighting for their liberty. (18) They felt altogether more important than they had when their country was not threatened:

   [T]hey had been visited for the first time in their lives by an apparition of freedom, not, to be sure, because they acted against tyranny and things worse than tyranny ... but because they had become "challengers," had taken the initiative upon themselves and therefore, without knowing or even noticing it, had begun to create that public space between themselves where freedom could appear. (19) But these "men of the European Resistance," (20) as Arendt called them, eventually lost the spirit they had gained when they were fighting something massive and real. After they won the fight, life did not feel so charged with importance.

   Arendt quotes Rend Char, a major French poet and one of the leaders of the domestic Resistance, on the subsequent disillusionment: "[O]ur inheritance was left to us by no testament." (21) What was the inheritance? Arendt implies that it was the liberty of an independent France and the sense of importance that such liberty had when it was imperiled. (22) And the testament? A formal account of what had happened: an official documenting of the threat, the danger, the bravery, the victory, and the promise of future liberty. (23) In Arendt's account, the Resistance fighters retreated into mere private life without establishing a definitive account of the history in which they had participated and without linking that history to a plan for the future. (24) Arendt explains:

   The testament, telling the heir what will rightfully be his, wills past possessions for a future. Without testament or, to resolve the metaphor, without tradition--which selects and names, which hands down and preserves, which indicates where the treasures are and what their worth is--there seems to be no willed continuity in time and hence, humanly speaking, neither past nor future, only sempiternal change of the world and the biological cycle of living creatures in it. Thus the treasure was lost not because of historical circumstances and the adversity of reality but because no tradition had foreseen its appearance or its reality, because no testament had willed it for the future. (25) Arendt argues that major historical events must be marked by an account that registers the precise way that the past slipped into the future and how world-historical events came to be connected to the mundane ones that preceded and succeeded them. (26) As a result, moments of political change need a sense of history to create durable new political formations. (27)

   As regular readers of Arendt know, she expanded on this observation (28) explicitly in the context of constitutionalism in On Revolution. (29) As she argued there, the major difference between the American and French Revolutions was that the American Revolution produced a durable Constitution, a testament "to ourselves and our Posterity," (30) while the French Revolution did not. (31) The American Revolution, precisely by leaving a testament, provided a precise accounting for what was valuable and who was to inherit it, calling upon an account of the past to explain the devise. The French Revolution, in Arendt's view, mistook the seizure of power for the consolidation of law and failed to constitute a legitimate government. (32)

   But one might argue against Arendt that the French Resistance did in fact produce a testament. By contributing to the liberation of France, the Resistance eventually gave birth upon its success to the Fourth Republic and the Fourth Republic Constitution of 1946. (33) That constitution carries a clear acknowledgment of the Resistance and its legacy:

   On the morrow of the victory of the free peoples over the regimes that attempted to enslave and degrade the human person, the French people proclaim once more that every human being, without distinction of race, religion or belief, possesses inalienable and sacred rights. It solemnly reaffirms the rights and freedoms of man and of the citizen consecrated by the Declaration of Rights of 1789 and the fundamental principles recognized by the laws of the Republic. (34) The Preamble not only made reference to those who fought for a free France but also indirectly to what France was freed from: distinction based on race, religion, and creed--a thinly veiled reference to the Nazi ideology that had dominated Europe. The Preamble also reasserted a continuity of French public law, from the Declaration of 1789 to the major laws of the Republic that gave France its distinctive character, a proud constitutional history that remained even after the horrors of the war. The 1946 Preamble then went on to list an extraordinary number of rights, particularly economic and social rights, to add to the past-facing references, and to name specifically which legacy of the war was being passed on to future generations. (35) Despite what Arendt says about the Resistance, it is hard to think of the result as the failure to provide a testament, to recognize the past, and to explain what was willed to future generations.

   The Fourth Republic Constitution, however, based as it was on dreams of parliamentary government (36) that required firm and stable party coalitions and a resulting political backbone in the face of challenge, failed quite spectacularly when French colonies started to agitate for independence a decade later. The 1946 Constitution lasted only twelve years before it was replaced by a new constitution that concentrated many powers in the executive. (37) Looking back from more than a decade out, as Arendt was doing, the men of the French Resistance...