Don't copy me, Argentina: constitutional borrowing and rhetorical type.

• Date: 22 September 2009
• Published date: 22 September 2009
• Author: Gordon, Mitchell
• Author: Gordon, Mitchell

INTRODUCTION: WHEN "WE THE PEOPLE" IS SOMEONE ELSE

In a satire of contemporary literary criticism, Jorge Luis Borges reviews the work of Pierre Menard, a twentieth-century French symbolist who, we are informed, has successfully produced his own version of Don Quixote. (1) The text of Menard's version is identical, word for word, to Cervantes's original, but Borges explains that Menard's version is "almost infinitely richer" in meaning since it was written with Menard's knowledge of three hundred years of history unknown to the original author. (2)

We hear the echo of Pierre Menard in an ancient question of comparative law: Can one nation's constitution be successfully copied by another? Although the issue has arisen more frequently since the Second World War--particularly in the twentieth century's last decades, which saw an unusually large number of new constitutions--our generation is neither the first nor the last to grapple with the problem of constitutional borrowing. (3)

Georg Hegel, for instance, thought failure inevitable because "the constitution of any given nation depends in general on the character and development of its self-consciousness." (4) In this self-consciousness "[the nation's] subjective freedom is rooted and so, therefore, is the actuality of its constitution." (5) In Hegel's view, borrowed constitutions are unsustainable because they lack not only sufficient self-consciousness but also the special character that elevates constitutions above the normal course of human events:

[I]t is absolutely essential that the constitution should not be regarded as something made, even though it has come into being in time.... It must be treated rather as something simply existent in and by itself, as divine therefore, and constant, and so as exalted above the sphere of things that are made. (6) Hegel believed that, since borrowed constitutions are both unselfconscious and unexalted, they not only are destined to fail, but are also unlikely even to cause meaningful societal change. (7)

But constitutional borrowing has its defenders, who argue that, while blind copying is inappropriate, judicious borrowing may benefit nations that have yet to solidify their political institutions. (8) Horacio Spector, for example, has argued that in the right circumstances "transplanting" a foreign constitution can work, (9) and Jonathan Miller has argued that Argentina's Constitution of 1853--which copied, in large part, the Constitution of the United States--endured for seven decades precisely because it was a copy and therefore enjoyed extra authority. (10) The "prestige of the foreign model" gave the Argentine Constitution what Miller calls a "talismanic" authority, "a sense that, if the document is followed, problems almost miraculously will be overcome." (11)

For the interpreter, the inherent challenge of constitutional borrowing lies in a Janus dilemma. A borrowed constitution has two faces: one turned to the past, the other to the future. Doubtless both the original constitution and the copied constitution are distinct texts, and we may presume generally that only the copy is binding authority. Yet we may presume also that the borrowed constitution's framers, that is, the copyists, had sound reasons for copying those words in particular. How, then, should one weigh the relative authority of the parent text? What light do the words of the U.S. Constitution shed on the words of its Argentine adaptation? Must we know the borrowers' original understanding of the parent text? What if they misunderstood the parent text? Does it matter how they saw the parent text or its subsequent history--whether as an oracle, deserving full deference, or instead as a guidebook, providing a helpful historical account of common experience? (12)

The answers to these questions are disputed even between the borrowers themselves. They dispute, in a sense, the effect of time on the process of constitutional borrowing. In constitutional borrowing, an authority from yesterday (as currently understood) is used today to set a course for tomorrow. But when we undertake later to follow that course, what do we do? Do we mainly inquire into the past, or do we deliberate about the future? (13) Two constitutional drafters may concur in borrowing the same words from some other nation's constitution--that is, they may agree in their choice of materials from the past--but disagree later about how those same words are to be interpreted. (14) Where the two constitutions differ, the borrowers might disagree about how much attention those differences deserve. Even where the texts are identical, the borrowers may disagree about the importance of the particular context, including the distinctive culture and history of the borrowing nation. In either event, they may disagree about how much deference is owed to the parent text. (15) Thus despite their initial agreement to borrow, they may disagree later over just what it was they decided. (16)

Part I of this Article concerns the relationship between rhetoric and law, outlining the classical distinction between the forensic and deliberative modes of rhetoric. Part II describes the basic vision of Juan Bautista Alberdi, the father of Argentine constitutionalism. Part III discusses how Alberdi's proposed constitutional ideas, borrowed heavily from the Constitution of the United States, influenced the text of Argentina's Constitution of 1853. Part IV examines the subsequent debate between Alberdi and his contemporary and associate, Domingo Faustino Sarmiento, to illustrate how their different rhetorical modes resulted in differing interpretations of the Argentine Constitution. (17) Part V offers some thoughts on rhetorical problems inherent in the interpretation of borrowed constitutions. My stance, essentially Hegelian, is that the rhetorical muddles presented by borrowed constitutions are unavoidable, placing on borrowers and their descendants the added obligation to link the borrowed text to a surrounding culture of constitutionalism.

1. RHETORICAL TYPE AND LEGAL TEXT

   Although classical rhetoric has won new interest among contemporary students of legal discourse, the relationship between rhetoric and law is in fact quite old. (18) More than two thousand years have passed since the first encounter between the study of law and the study of rhetoric. (19) Rhetoric originated, in fact, through legal conflicts: in 465 BCE, when the tyrant Thrasybulus was overthrown in Syracuse, the courts were flooded by disputes over property the dictatorship had stolen; this led Corax and other early rhetoricians to develop a systematic approach to persuasive discourse, a system that might benefit litigants arguing their own cases in court. (20)

   The definition of rhetoric has been continually contested. Probably the most widely recognized definition was proposed by rhetoric's great systematizer, Aristotle (384-322 BCE), who defined rhetoric as "the ability, in each [particular] case, to see the available means of persuasion." (21) Understood generally as "the art of using language to persuade, that is, to seek agreement, cooperation, or action," (22) rhetoric soon became central to both Greek and Roman education and survived in substantially the same form for over four centuries, peaking with Cicero and Quintilian. (23) Since ancient days, the study of rhetoric has contributed in many ways to the study of law, though it has contributed less to legal theory, perhaps, than to legal practice. Although it soon blossomed into "the most comprehensive, adaptable, and practical analysis of legal discourse ever created," (24) ultimately influencing not just legal decisionmaking but also matters of state, rhetoric was, after all, invented for a specific, practical task: to "help ordinary men plead their claims in court." (25)

   But while Aristotle and other classical rhetoricians acknowledged rhetorical training's concrete benefits in the courtroom, they also considered rhetoric more than merely a compilation of tricks of the trade. Rhetoric played a part, for instance, in interpreting written laws. To the ancients, the reduction of the laws to written words was unsettling: they feared that "by mak[ing] laws wholly independent of their author," written texts could become an instrument of tyranny. (26) For Aristotle, it was impossible to understand the law fully without accounting for the rhetorical process, since legal outcomes often turn on the outcomes of arguments about how to define or interpret a text: "[For men] often admit having done an action and yet do not admit to the specific terms of an indictment or the crime with which it deals." (27) Aristotle thought pure text too brittle to effect justice among men--he held that "fairness is justice that goes beyond the written law" (28)--and he argued that the law "could be made more flexible and equitable through the use of rhetoric." (29) The act of interpreting laws was an act of rhetoric.

   Rhetoric thus left a legacy to legal education that was less a source of practitioner's tips than a school of practical reasoning--an all-encompassing inquiry into the persuasive uses of language. As Eileen Scallen has written, it also suggested a particular worldview that was "close to the philosophical perspective of pragmatism, the basis of the 'school' of interpretation called practical reasoning." (30) Unlike his teacher, Plato, Aristotle saw rhetoric as inherently neither good nor bad, but as "a tool or faculty that can be used for good or ill," (31) and, also unlike Plato, he "adopted the sophistic emphasis on the contingent, the contextual, and the practical elements of rhetoric." (32) Like the sophists, Aristotle "envisioned an incomplete, ambiguous, and uncertain world, interpreted and understood by means of language." (33)

   In his practical treatise, On Rhetoric, Aristotle divided all persuasive speech into three distinct types: forensic, deliberative, and epideictic. (34)...