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Constitutionalism, Contestation, and Civil Society
This journal, of which I am a member of the founding editorial board, has stood for a variety of aims that are incompatible—it would seem—in theory, if not in practice. From its conception in the immediate wake of the East European "velvet revolutions" of 1989 to 1991—and with velvet revolutionaries like Adam Michnik and György Konrád on its board—Common Knowledge has sought to encourage a world free of tyranny and absolutes, but also a world at peace. Emphasis in the journal's new series, edited from the Middle East, has been on peace (hard not to desire ardently, especially at this historical moment); but it is worth adding, perhaps periodically, that the social arrangements conducive to peace are generally the product of long periods of dialectical tension and sometimes violent contestation. In nations where that kind of contest is mostly behind us, we tend to forget how we achieved the apparently ideal and universalizable constitutions and civil societies that we enjoy. The imposition of peaceful arrangements is authoritarian and, surely in the long run, unworkable. In any case, the sort of peace we have, when we do have it, derives from trust that we can handle conflict: a trust that in itself derives from having managed conflicts, without too much damage, time and time again. I would like, in the present context and the following essay, to encourage dynamism—as much realism as [End Page 287] idealism, as much thesis and antithesis as synthesis—in our political lives and expectations.
Speaking of American constitutions in 1824, two years before his death, Thomas Jefferson said that "we consider them not otherwise changeable than by the authority of the people, on a special election of representatives for that purpose expressly: they are until then the lex legum":
But can they be made unchangeable? Can one generation bind another, and all others, in succession forever? I think not. The Creator has made the earth for the living, not the dead. Rights and powers can only belong to persons, not to things, not to mere matter, unendowed with will. . . . A generation may bind itself as long as its majority continues in life; when that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held, and may change their laws and institutions to suit themselves. Nothing then is unchangeable but the inherent and unalienable rights of man. 1
In this characteristic statement of the constitutional views of the American Enlightenment, Jefferson evoked both political realism and rights-based legal idealism. The tension between these two concepts is, at one level, my theme; but at another level, this essay is an initial attempt to work out my late-dawning realization that the two preoccupations of my career—philanthropy (that is, the institutions of civil society) and constitutional law—are aspects of a single larger problem.
Let me start with constitutional law. Thanks to the Ford Foundation, which asked me, as president of the American Council of Learned Societies (ACLS), what Ford might do to commemorate the bicentennial of the U.S. Constitution in the mid-1980s, I was able to organize a project on the idea of constitutionalism. It had long seemed to me the most important U.S. contribution to modern thought, and the Ford staff agreed that we ought to study the progress of that contribution outside the United States, both in order to understand its range and growth, and to better comprehend American constitutionalism. The result was a large grant for a substantial ACLS project on comparative constitutionalism, beginning in 1987, spanning nearly five years and extending to Latin America, Africa, South/Southeast Asia, and Europe (both West and East).
I will not pretend that my mind was a tabula rasa at the outset. My notion [End Page 288] of the origins of American constitutionalism, drawn from my mentor Bernard Bailyn, was that eighteenth-century Americans had conceived of constitutionalism in instrumental terms—as a consciously contrived mechanism...