From Words to Worlds: Exploring Constitutional Functionality

• 8. Constitutional Limits
• Chapter
• Johns Hopkins University Press
• pp. 150-176
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CHAPTER THREE
Constitutional Aspiration

Robert Cover once remarked that constitutions are “the projection of an imagined future upon reality.”¹ Like many contemporary constitutional theorists, he understood that the fundamental charter of a nation is far more nuanced than can be accurately captured by a definition centered predominantly on the text’s procedural clauses or its architectural features. The document encapsulates much more than the simple calculation of political authority: which institutions of government will exercise which powers. It includes something less tangible, though no less important: a vision of the future for a specific and collective people.

Of course, Cover was not alone in his assessment of constitutions. Many scholars and jurists have joined him in embracing the idea that a constitutional document includes certain elements that are seemingly less noticeable to students of constitutional theory. Sanford Levinson and Thomas Grey correctly comprehend the subtlety of a constitutional text, referring separately to the American charter as “scripture.”² So does Keith Whittington, who writes, “The written Constitution is not to be understood merely as a fundamental law structuring and limiting political powers but also as the sacred text of a community of moral and rational individuals. Such a sacred text is concerned with ideals as well as structures.”³ What these and other scholars share in common is the recognition that a constitutional text is not simply a momentary reflection of a particular time; nor is it a collection of dry and uninspiring procedural regulations. It has an enduring quality that is tied directly to the promises made within the text itself, promises that inform what we might call the “spirit” of the document.⁴ Sometimes those promises are obvious, as in the case of the constitutional text that highlights its aspirations in sections such as “preambles,” and “introductions.” Sometimes the promises are less noticeable, especially when they are embedded within the often technical and mundane structure of the text itself. Some constitutions, like Canada’s original 1867 draft, even define the polity’s values through the comparative absence of aspirational statements. Modern constitutions, however, articulate some ambitions; they explicitly or implicitly outline the future goals of the polity, and in so doing, identify an aspirational vision for the polity itself. Indeed, the second function of the modern constitutionalist text is that it imagines a normative political society—a brighter political future—and then, if successful, it helps to bring about that envisioned community.

Defining Constitutional Aspiration

Before turning immediately to the intangible realm of theory, perhaps a simple definition is in order. What is meant by constitutional aspiration? To aspire is to seek to achieve something greater than what one presently has. While we typically think of aspirations as involving personal dreams and goals, institutions—like the text itself or the convention of constitutional designers charged with drafting or altering the text—can also aspire to something greater. Framers of constitutions around the world and over many generations have long believed that their mission is an inherently aspirational one: there is perhaps no greater reason to convene than to contemplate the appropriate constitutional design to help deliver a more promising future. More importantly, modern framers aspire to create a document that will instill confidence both at home and abroad in the institutions of the polity. Those framers have long insisted that a written constitutional text can help pave the way for a greater collective existence. Set out the rules prior to the birth of a new or reconstituted nation, and you maximize the possibility that ordered and stable political institutions will advance the particular ideals or values of that polity.

That is why in so many cases the constitutional text has a self-referential quality: these documents refer to themselves as the means to achieve a desired end. The U.S. Constitution is self-referential when it states in its preamble that “in order to form a more perfect union,” we the people, “do ordain and establish this Constitution.” Borrowing again from Akhil Amar’s point about the active quality of the American draft: “The Constitution, after all, was not just a text, but an act—a doing, a constituting.”⁵ The same is true of the Polish constitution, whose preamble also embraces the principle that the constitutional text is an important means to achieve a brighter future. In fact, a shared belief that a constitutional document can be a vital part of a journey to a “more perfect” polity is a key component of any constitution-making and ratification process.

Gary Jacobsohn (to whom we are indebted for the phrase “constitutional aspiration”) describes the progressive characteristics of all constitutional texts: “Common to the [constitution] is a conception, implicitly or explicitly incorporated in the document, of the kind of polity the constitution seeks to preserve and to become. This conception, or vision, will consist of a mix of attributes reflecting what is distinctive in the political culture as well as what are taken to be shared features of a universal culture of constitutionalism.”⁶ In an earlier treatment of the same subject, Jacobsohn uses the prism of Lincoln’s disagreement with the Supreme Court decision in Dred Scott v. Sandford (1857) to comment on the scope of constitutional aspirations, insisting that the values embedded within the American constitutional text are both substantive and procedural. What is largely missing from contemporary scholarship, Jacobsohn further suggests, is an understanding that constitutional aspirations exist independent of institutions like the judiciary that give the text its primary meaning.⁷ He concludes that modern constitutions, regardless of institutional attempts to interpret them, are “committed to the achievement of things seemingly beyond [their] immediate reach.”⁸

In defining those qualities that give constitutions an aspirational dimension, Jacobsohn reminds us of two important considerations. First, he insists that all constitutions are imperfect. Because they set goals that are “beyond the [polity’s] reach,” constitutions unavoidably create gaps between the actual, or the present political reality, and the ideal, or the constitutional promise.⁹ Second, he remarks that constitutional aspirations are in some sense particularist; they reflect the specific ideals and values of a distinctive political culture. Both considerations are essential to an understanding of constitutional aspiration. By definition, to aspire to something is to realize that one has not yet arrived, that one has yet to achieve the desired goal or state of perfection. Similarly, the particularist qualities embedded in each constitutional design force us to conclude that there may be a variety of ways to attain political progress. No two paths to political utopia are precisely alike. The aspirational statements of many constitutional charters may sound similar, and the use of the constitutional document to launch the journey may now be common, but the details of the attempt to realize a polity’s primary aspirations will be influenced by very specific and altogether unique forces.

Scholars have occasionally borrowed the metaphor of the “promissory note,” made famous by Martin Luther King’s “I Have A Dream” speech, to further describe the aspirational qualities of a constitutional text.¹⁰ The text is a promise to future generations. Keith Whittington, for example, describes the American text as a promissory note and then extrapolates on that one illustration to draw notable conclusions about the character of many constitutional charters.¹¹ There is a fundamental difference, he writes, between the essence of an unwritten text and that of a written document. The former permits—even encourages—the unconstrained development of aspirational principles throughout the life of the polity, whereas the latter—the written text—insists that the developing values or visions of a nation be made somehow consonant with “previously assumed fundamentals.” In other words, a written constitution requires some awareness of its heritage and tradition; the polity’s evolving aspirations will be deemed legitimate only if they account for the promises that were made at earlier moments in time.

The act of writing a constitution, therefore, commences a metaphorical dialogue between text and citizen (and future generations) about the pursuit of political perfection. Obvious questions that arise during this dialogue are: What will it take for this collective citizenry to reach a higher plane of political perfection? How might the polity achieve the ideal? What place do the values and aspirations of prior generations or founding principles have in this dialogue? Whittington calls the dialogue a “quest”: “Once written, the constitutional text becomes a ‘promise,’ a promise by the people to their represented, and necessarily ideal, ‘collective character.’ Having committed itself to writing,” Whittington continues, “the nation begins a quest to overcome itself, to become the perfect state represented in the text.”¹²

Though Whittington and others are correct to insist that the entire constitutional document is a promissory note and that the constitutional text as a whole commences the polity’s quest toward political perfection, there are locations within the standard charter where the expressed aspirations are more obvious. In particular, constitutional framers around the world now see preambles and bills of rights as logical places to make aspirational declarations and grand promises. This chapter is primarily an examination of these two forms.

Constitutional Preambles

It is interesting to note that although the word preamble dates back to the fourteenth century—where it literally meant “to walk before”—most early constitutions did not describe clauses at the beginning of the text identifying the reasons for adoption as “preambles.” The early state constitutions of the American colonial period included introductory statements, but those statements were not self-consciously identified as preambles.¹³ Neither was the famous introductory announcement in the U.S. Constitution called a preamble. It was not until well into the nineteenth century that constitutional framers began specifically and self-consciously referring to the introductory clauses as “preambles.” Today, virtually every newly minted constitution includes a preamble, and only rarely do those documents actually omit the term from the general structure of the text itself.

Contemporary constitutional preambles are curious statements. Filled with exalted language and promises of a better tomorrow, these statements precede the more technical components of a constitutional design. They appear first, and thus they might arguably be considered the most important section of any modern constitutional text. After all, preambles are typically the portion of a traditional constitutional draft where the polity articulates its most important aims and objectives. It is the place, in other words, where constitutional framers proclaim their principal intentions, where they communicate their deepest aspirations for the newly created polity. Capturing the essential quality and importance of the text’s introduction, a “Native of Virginia” wrote in 1788 that the preamble “is the Key of the Constitution.”¹⁴ Joseph Story echoed those sentiments almost a half-century later when he remarked, “It is an admitted maxim in the ordinary course of the administration of justice, that the preamble of a [constitution] is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the [text].”¹⁵

The U.S. Constitution begins with the familiar phrase, “We the People,” and continues by identifying the half-dozen or so goals that the Constitution promises to advance. Included in that list are vows to promote the principles of Liberty, Tranquility, and Justice, all in an effort to “form a more perfect Union.” The aspirations acknowledged by the framers as most important include the obvious ones—freedom, the common defense, the general welfare, and so on—but they are certainly not the only ones. The announcement that the text derives from “the people of the United States” is, itself, an aspirational statement.¹⁶ It signals a change in the nature of sovereignty as well as a shift in the organizational structure of the thirteen independent states. The locus of power, in other words, was transferred from the people of the several states to the people of the United States. At its most basic level, therefore, the simple statement that begins the Preamble represents a belief—a belief in a radically new design for governance. For that reason, it also represents a hope. What makes the statement so bold and yet so hopeful is that the framers enjoyed little assurance that the ratifying populace would accept such a transfer of authority.

More recently drafted constitutions have also used introductory language to convey a polity’s aspirational goals. Eastern Europe represents the busiest recent laboratory in terms of setting constitutional aims. The Bulgarian constitution, for one, speaks of a “desire to express the will of the people of Bulgaria, by pledging loyalty to the universal human values of liberty, peace, humanism, equality, justice and tolerance; by elevating as the uppermost principle the rights, dignity and security of the individual, in awareness of our irrevocable duty to guard the national and state integrity of Bulgaria.” The Polish and the Czech constitutions articulate similar themes, touching on both universal values and objectives that are quite specific to each individual polity. Each constitution’s preamble tells a story of oppression, details the scope of liberty and equality, and embraces the idea of the text as an instrument to achieve meaningful political and social reform.

Consider the example of a single non-Western constitution, that of Cambodia. It is cited here because it so clearly illustrates those themes that are now common among contemporary constitutional documents. The Cambodian constitution uses its preamble to tell the story of the nation’s decline over the past several decades and the constitution’s importance in reversing that trend:

We, the people of Cambodia;

Accustomed to having been an outstanding civilization, a prosperous, large, flourishing and glorious nation, with high prestige radiating like a diamond;

Having declined grievously during the past two decades, having gone through suffering and destruction, and having been weakened terribly;

Having awakened and resolutely rallied and determined to unite for the consolidation of national unity, the preservation and defense of Cambodia’s territory and precious sovereignty and the fine Angkor civilization, and the restoration of Cambodia into an “Island of Peace” based on multi-party liberal democratic responsibility for the nation’s future destiny of moving toward perpetual progress, development, prosperity, and glory;

With this resolute will;

We inscribe the following as the Constitution of the Kingdom of Cambodia.

The preamble to the Cambodian constitution, like so many others, is intended to inspire, to identify constitutive bonds, and to provide a clear beacon for those who have been granted the authority to navigate the polity’s political course. For that reason, it is indispensable.

And yet the actual legal influence of modern preambles is dubious. Preambles are rarely, if ever, used as authoritative legal doctrine. Courts around the world typically view them more as mission statements than as binding legal promises, and thus those who seek their aid in actual litigation are often disappointed. Sotirios Barber is correct, then, when he notes that “preambles are not applied to facts in ways that directly help settle lawsuits.”¹⁷ The U.S. Supreme Court has similarly suggested that preambles to state legislation—and, by implication, state constitutions—should be considered as expressing nothing more than a state’s particular value preferences.¹⁸ They are often broad declarations of general political goals and not specific clauses aimed at resolving specific political disputes. Precisely because of the preamble’s comparative lack of enforcement power, a polity should have greater liberty there than in the rest of the constitutional text to proclaim unorthodox or controversial aims. If a political regime wishes to declare a stance on a particular issue, the Court seems to be saying, it is the preamble that provides the most powerful and effective vehicle.

Before we dismiss constitutional preambles as mere rhetoric, however, we ought to consider their effect on the interpretation of the entire document. If it is true that preambles reveal a polity’s primary ends, then is it right, we may ask, to assume that political officials seek the guidance of these words in the practice of constitutional interpretation? Do courts use preambles and other aspirational statements as touchstones for the difficult task of deciphering vague constitutional clauses? Should they? Barber, Whittington, Jacobsohn, and others certainly think so. Barber writes that preambles should not be “excluded from a theory of constitutional meaning on [the] grounds that they are not laws.”¹⁹ Rather, they form a part of the constitutional whole and should be read as including important explanatory language. They inform the rest of the document insofar as they declare the polity’s most important aspirations. Consequently, their impact extends far beyond the sometimes-lofty character of their words.

Preambles serve important civic lessons as well. The aspirational qualities of constitutions often begin with reference to the past. It seems unnecessary to repeat the primary thesis of the last chapter—that one of the principal functions of the modern constitution is that it destroys a previous polity and creates a new one—but it is important to recognize that the vision embedded within a new constitutional document is always closely tied to the events that prompted a constitutional change in the first place. In other words, the aspirations of a fresh constitutional design are inevitably informed by the faults and mistakes of the past. The French Constitution of 1791, which endorses the central tenets of the French Revolution, is one of the most striking examples. It begins,

The representatives of the French people, organized in National Assembly, considering that ignorance, forgetfulness or contempt of the rights of man, are the sole causes of the public miseries and of the corruption of governments, have resolved to set forth in a solemn declaration the natural, inalienable, and sacred rights of man, in order that this declaration, being present to all members of the social body, may unceasingly remind them of their rights and their duties.²⁰

In this illustration, the constitutional document is meant not only to signal the abandonment of a regime best known for its abusive tendencies but also to act as a constant reminder of the specific vision embraced by the founding generation, a vision based on different conceptions of sovereignty, equality, and rights.

Common Themes

Over the past two centuries, many of the world’s constitutional preambles have taken on a decidedly similar tone. That is, certain general themes now regularly appear in constitutional preambles, especially in those that accompany texts drafted and ratified in the last fifty years. To be sure, most constitutional preambles still embrace some form of what we might define as universal human values: freedom, liberty, equality, justice, and democracy. Many introductory statements also repeatedly reference God and/or the regime’s particular religious heritage, a practice that began with premodern constitutional forms (the Magna Carta, for example) but that became quite standard in the late eighteenth and early nineteenth centuries.

Yet despite these broad parallels with preambles of the past, it is fair to conclude that current constitutional preambles look a good deal different than earlier ones. They have increasingly begun to include some reference, for instance, to the polity’s dysfunctional or troubled past. In some cases, those references even rise to the level of narratives, describing in great detail the woes of the country’s historical legacy. Contemporary preambles also mention the country’s sense of nationalistic pride in overcoming those difficulties. Embedded in the sense of pride is a commitment to national identity that sometimes appears in isolation and sometimes is coupled with a vow to participate actively and responsibly in the community of nation-states. Relatedly, a number of preambles drafted recently also include a powerful statement of self-determination. The Estonian constitution, for instance, begins by declaring an “unwavering faith” and an “unswerving will to safeguard a state which is established on the inextinguishable right of the Estonian people to national self-determination.” All three of these common themes are in a sense aspirational. Together, they denote a polity aiming to fulfill its highest ambitions.

Before exploring these specific similarities, it may be useful to draw at least one more general conclusion about the current state of modern constitutional preambles. Noteworthy when reviewing the present character of constitutional charters is that the development of preambles seems over time to mirror a similar development in the texts themselves: the preambles, like the drafts that follow, are far more detailed than they used to be. More scarce now are the preambles that rely exclusively on broad and expansive generalities, the ones that resemble the ideals expressed in the comparatively brief introduction to the U.S. Constitution. References to the values and aspirations of the polity, even if they echo earlier preambles, are spelled out in language far more specific, and far more elaborate, than the language used to craft preambles in the eighteenth and nineteenth centuries. Compare, for example, the preamble to the 1990 Mozambican constitution, with its multiple paragraphs and particularistic historical details, with the brevity and scope of the U.S. Constitution’s preamble.²¹ Many of the ideas are the same, but the wording of the Mozambican charter is more vivid. The preamble to that document reads:

At zero hours on 25 June 1975, the Central Committee of the Mozambique Liberation Front (FRELIMO) solemnly proclaimed the total and complete independence of Mozambique and its establishment as the People’s Republic of Mozambique.

This was the culmination of a centuries long process of resistance to colonial rule. It was the unforgettable victory of the armed national liberation struggle, led by FRELIMO, which united, under the same ideals of freedom, unity, justice and progress, patriots from all levels of Mozambican society.

The Constitution, as then proclaimed, recognized the determinant role of FRELIMO as the legitimate representative of the Mozambican people. Under its leadership, the process of the exercise of state power as an expression of the people’s will was begun.

The State that we created has made it possible for the Mozambican people to strengthen democracy and, for the first time in its history, to exercise political power and to organize and direct social and economic affairs at a national level.

The experience of the operation of State institutions and the exercise of democracy by citizens has created the need for change and new definitions.

After 15 years of independence, the Mozambican people, in the exercise of their inalienable right to sovereignty and determined to consolidate the nation’s unity and to respect the dignity of all Mozambicans, adopts and proclaims this Constitution, which shall be the fundamental law for all political and social organization in the Republic of Mozambique.

The fundamental rights and freedoms enshrined in the Constitution are the achievements of the Mozambican people’s struggle to build a society of social justice, where the equality of citizens and the rule of law are the pillars of democracy.

We, the Mozambican people, determined to strengthen our country’s political order, in a spirit of responsibility and pluralism of opinion, have decided to organize society in such a way that the will of the citizens shall be the most important precept of our sovereignty.

The Mozambican preamble, like that of the United States, speaks of grand ideals like justice, freedom, and peace, but it does so within a very particularistic frame. It also articulates these values within the context of a detailed historical narrative, even going so far as to embed the literal date of independence within the constitutional document. Such is the way of many constitutional preambles—and many constitutional texts—drafted in the twentieth century.

The expansion of constitutional preambles is a symptom of a particular view of contemporary constitutional engineering, one that sees the public text as a considerable force in resisting the rise of tyranny, especially within a world where many eyes are watching. This view might be characterized as a consequence of a powerful belief in the principle of constitutionalism, combined with an equally powerful recognition that oppression will be met with international condemnation. Contemporary framers appear to have more faith in the strength of the constitutional text as a public pronouncement, but less faith in the good will of government officials. The result is often a constitutional document that tries to anticipate any potential for government abuse, one that is so detailed and lengthy as to resemble a treatise rather than a charter. Fewer and fewer framers are following the advice, espoused most famously by Chief Justice John Marshall in McCulloch v. Maryland (1819), that the nature of a constitution “requires [only that] its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”²² It seems that with constitutions, bigger is now better.

The same is often true with preambles. Consider, for example, the South African constitution, which is (to put it mildly) lengthy. The constitutional charter itself has fourteen chapters, 243 sections, and more than 1000 separate clauses. The official reprint of the constitution, released by the South African government immediately following the ratification of the text, is a full 187 pages in length. The document’s preamble, while perhaps not as lengthy, is similarly detailed, covering themes ranging from an ugly racial past to universal human rights, from the virtue of representative democracy to the need for collective healing. The South African constitution begins,

We, the people of South Africa,

Recognise the injustices of our past;

Honour those who suffered for justice and freedom in our land;

Respect those who have worked to build and develop our country; and

Believe that South Africa belongs to all who live in it, united in our diversity.

We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to -

Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;

Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;

Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.

Notably, the South African constitution and its preamble have been described as one of several paradigm examples created because of this “global faith” in the principle of constitutional limits. Heinz Klug refers to the pressure experienced by South African constitutional framers as they entered into deliberations for a new constitutional order.²³ That pressure, he notes, centered on the need to embrace “globalizing constitutionalism,” or the practice of nation-states to use the mechanism of constitutional limitation not only to structure and organize the internal polity but also to gain a degree of international credibility. South African framers needed to announce to the world that what they were undertaking merited universal respect; they needed to convince the international community that the replacement of apartheid with a more inclusive political system would work. The drafting of a constitutional document represented an essential first step in that process. So was the message espoused in the constitution’s introductory statement. The constitutional preamble, Klug says, is an important part of that overall legitimacy project: it articulates those standards to which the rest of the document endeavors to reach, including standards like democracy and justice that were largely missing from South Africa’s past.

Reference to Historical Abuses

The South African constitution and its preamble effectively illustrate the recent trend among contemporary framers to favor specific details over sweeping generalities in the construction of constitutional clauses. The introduction to the South African constitution is also a good illustration of the related tendency of contemporary preambles to reflect the missteps of the past. In fact, many constitutions (especially in the developing world) espouse elaborate tales of woe, filled with vivid descriptions of oppression, inequity, political tyranny, scandal, corruption, ethnic, religious, and/or regional conflict. These narratives embedded within the constitutional text—and typically as part of the text’s preamble—are often used to frame the drafters’ vision for a new political order where none of the previous maltreatment will recur. They serve the dual purpose of justifying the need for a new constitutional text to mark an important transition away from the problems of the past and providing a glimmer of hope that a reconstituted polity will somehow lead to a better life. Once again, consider a non-Western and slightly extreme example. The former Congolese constitution, adopted in March 1992, identifies the dominant visionary principles of the regime and yet simultaneously places them within the context of a long history of political abuse.²⁴ The text begins with this preamble:

Unity, Work, Progress, Justice, Dignity, Liberty, Peace, Prosperity, and Love for the Fatherland have been, since independence, notably under mono-partyism, hypothesized or retarded by totalitarianism, the confusion of authorities, nepotism, ethnocentrism, regionalism, social inequalities, and violations of fundamental rights and liberties. Intolerance and political violence have strongly grieved the country, maintained and accrued the hate and divisions between the different communities that constitute the Congolese nation. Consequently, We, the Congolese People, concerned to: create a new political order, a decentralized State where morality, law, liberty, pluralist democracy, equality, social justice, fraternity, and the general well-being reign…order and establish for the Congo the present Constitution.

Statements like this one found in Congo’s 1992 charter are inherently optimistic. The message of these accounts seems to be that the constitutional text will cure all—or at least most—of the country’s political ills. Other preambles echo these same sentiments. Perhaps the most famous recent example of a constitutional document that articulates a clear aspirational vision deriving from the tragedies of the regime’s political past can be found in Poland’s constitution. The preamble to the 1997 Polish constitution refers to the break with the former Soviet Union as an important historical moment. It also references the country’s long struggle for independence, its “thousand year heritage,” the “best traditions” of previous Polish regimes, and the considerable “labors” of Poland’s ancestors, as things worthy of constitutional mention. Most interesting, perhaps, is the preamble’s implicit reference to the Holocaust. The framers deliberately included a declaration that the constitutional text is an important vehicle meant to “[bind] in community [the regime’s] compatriots dispersed throughout the world.” The entire preamble, in fact, is charged with emotion:

Having regard for the existence and future of our Homeland, Which recovered, in 1989, the possibility of a sovereign and democratic determination of its fate,

We, the Polish Nation - all citizens of the Republic,

Both those who believe in God as the source of truth, justice, good and beauty, As well as those not sharing such faith but respecting those universal values as arising from other sources,

Equal in rights and obligations towards the common good - Poland,

Beholden to our ancestors for their labors, their struggle for independence achieved at great sacrifice, for our culture rooted in the Christian heritage of the Nation and in universal human values,

Recalling the best traditions of the First and the Second Republic,

Obliged to bequeath to future generations all that is valuable from our over one thousand years’ heritage, Bound in community with our compatriots dispersed throughout the world,

Aware of the need for cooperation with all countries for the good of the Human Family,

Mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland,

Desiring to guarantee the rights of the citizens for all time, and to ensure diligence and efficiency in the work of public bodies,

Recognizing our responsibility before God or our own consciences,

Hereby establish this Constitution of the Republic of Poland as the basic law for the State, based on respect for freedom and justice, cooperation between the public powers, social dialogue as well as on the principle of aiding in the strengthening the powers of citizens and their communities.

We call upon all those who will apply this Constitution for the good of the Third Republic to do so paying respect to the inherent dignity of the person, his or her right to freedom, the obligation of solidarity with others, and respect for these principles as the unshakeable foundation of the Republic of Poland.

Historical references are now commonly found within the expressions of contemporary constitutional preambles. The principle of constitutional aspiration, therefore, has taken on a decidedly particularistic flavor in recent years. Those universal values that often encompassed the entire introduction to constitutional texts of the eighteenth and nineteenth centuries—again, such values as freedom, liberty, justice, and equality—are still present, but now they are more likely framed within a historical narrative that aims to remind political leaders, citizens of the polity, and the world community of the various abuses that plague the regime’s past. Contemporary constitutional framers apparently believe that the path to greater freedom or a higher sense of justice must begin with the process of constitutional cleansing. Thus the constitution becomes the country’s symbol of optimism and renewal, what Nelson Mandela referred to as a country’s “rebirth.” Indeed, the promises of a brighter future are made more credible by referring to a dismal, or at least more difficult, past.

National Identity and International Responsibility

The use of constitutional preambles to announce a clean break from an oppressive tradition has also prompted powerful declarations of national identity.²⁵ Both the Cambodian and Mozambican preambles, above, separately reference their country’s fierce sense of pride as one reason for the birth of their individual constitutional orders. In particular, the Cambodian constitution describes, with unusually emotive language, the decline and revival of a once “outstanding civilization,” a civilization that, in the words of the framers, “radiates like a diamond.” The source of pride captured in the words and phrases of the Cambodian constitution relates directly to that country’s emergence from the grip of a brutal dictatorship. The document implies that the population’s survival of more than two decades of the cruelest possible leadership is something for all to celebrate. It is also something to announce to the world. The scope of our tragedy, Cambodians claim, warrants inclusion in the regime’s most important and most visible public document. It would not be enough simply to condemn the atrocities of the past through ordinary legislative decree or simple executive order. Placing the message in the fundamental law lends greater force and credibility to its meaning. The same intention can be discerned when viewing the Mozambican constitutional text.

The preamble to the 1946 French Constitution is stylistically similar. Although not specifically about independence or dictatorships, it speaks of the sense of dignity that country experienced by assisting allied forces in the victory over German oppression. The preamble’s introductory passage also articulates an important yet subtle message of moral exceptionalism: the constitutional text—the country’s primary public document—celebrates tangible distinctions between French citizens and citizens of other countries. “In the morrow of the victory achieved by the free peoples over the regimes that had sought to enslave and degrade humanity,” the translated preamble begins, “the people of France proclaim anew that each human being, without distinction of race, religion or creed, possesses sacred and inalienable rights.” Tied to statements in the preamble regarding French military success, therefore, is an interesting effort to distinguish that country’s moral compass from the misguided view of morality found in those countries that engaged in the evil of genocide. What is notable is that there appears to be an implicit attempt to disassociate the French perspective on the dignity and equality of all citizens from the morally unjustified policies pursued by political officials just across the border. We are distinct from our neighbors to the east, seems to be the point of the constitutional preamble.

Since World War II, a number of drafted constitutional texts, especially those in Eastern Europe, have included language that not only articulates the distinctiveness of the particular regime but also includes statements acknowledging the place of the polity within the international community of sovereign states. These preambles include important claims of national identity and pride, but they also concede the polity’s responsibility to other countries. Consider the preamble to the 1992 Constitution for the Czech Republic:

We, the citizens of the Czech Republic in Bohemia, Moravia, and Silesia, at the time of the renewal of an independent Czech state, being loyal to all good traditions of the ancient statehood of Czech Crown’s Lands and the Czechoslovak State, resolved to build, protect and develop the Czech Republic in the spirit of the inviolable values of human dignity and freedom, as the home of equal and free citizens who are conscious of their duties towards others and their responsibility towards the whole, as a free and democratic state based on the respect for human rights and the principles of civic society, as part of the family of European and world democracies, resolved to jointly protect and develop the inherited natural and cultural, material and spiritual wealth, resolved to abide by all time-tried principles of a law-observing state, through our freely elected representatives, adopt this Constitution of the Czech Republic.

The Czech constitution admits to some role as part of “the family of European and world democracies.” That particular section of the preamble is informed by previous passages that emphasize the country’s commitment to human rights, civil society, democracy, and human dignity. Other constitutions have echoed those same connections. The preamble to the Constitution of Ireland is even more explicit in acknowledging a role for the country in the community of nations. It speaks of the duty to establish “concord with other nations.” It further admits to the importance of individual freedom, social order, and national unity. The Polish preamble is another example. It underscores the state’s interests in “cooperat[ing] with all countries for the good of the Human Family.” The Slovakian constitution, adopted in 1992, is a fourth example. That document highlights the need for Slovakia to maintain “lasting peaceful cooperation with other democratic states.”

A closer inspection of the events that gave rise to the recent constitutional transformations in Eastern and Central Europe seems to confirm commitments to both internal and external constituencies. Jon Elster insists that the constitution-making process in the region is a “gigantic natural experiment” because the polities of Eastern Europe are neither “too similar nor too different” to derail a comprehensive comparative analysis.²⁶ One similarity demonstrated in the language of several Eastern and Central European constitutional preambles (and one that Elster does not mention) involves the statements alluding to one’s responsibility to the community of nations. There are likely two reasons for the common tone of these passages. First, it is probable that some commitment to international responsibility is derivative of the type of “global” pressure Klug identifies in the South African experiment.²⁷ There are models of constitutional documents that are hard to ignore, especially those from neighbors directly across the border. Once one Eastern European constitution was drafted that included reference to “the family of European and world democracies” (as the Czech constitution did early on), others saw it in their national interest to follow suit.²⁸ The second reason, while related to the first, is a bit more cynical. There is little doubt that the former Soviet states are all scrambling to establish greater economic, political, and cultural connections to Western European regimes. This attempt comes at the same time that these countries seek to sever (or at least weaken) whatever ties still remain with Russia. The thinking among constitutional framers is: What better way to announce the Europeanization of a newly independent state than to textualize it in the constitutional preamble? The force and credibility of the constitutional document, they insist, advances particular aspirational goals of the polity in ways that other political mechanisms simply cannot. Constitutionalizing one’s obligation to others seemingly makes the commitment more credible.

Self-determination

A country’s confessed duty to participate economically, politically, environmentally, and morally in the community of nations has also led directly to the incorporation of self-conscious expressions of sovereignty within a polity’s public charter. More and more constitutional preambles, in other words, are including explicit statements of independent self-determination. Obviously, many of the former Soviet bloc countries were quick to embrace the principle of sovereign rule and self-determination in their constitutional preambles. A long history of foreign control will do that to a recently independent state.²⁹ The proclamation in the Estonian constitution, above, is perhaps the most forceful, but the general sentiment expressed in that document is widely shared within the region. Article III of the Slovene constitution notes that the country is “founded on the permanent and inalienable right of the Slovene nation to self-determination.” The 1994 Constitution for the newly independent Republic of Belarus begins with an interesting statement, drawing not only on the issue of national sovereignty but broadly on all of the themes discussed in this chapter:

We, the People of the Republic of Belarus, emanating from the responsibility for the present and future of Belarus;

recognizing ourselves as a subject, with full rights, of the world community and confirming our adherence to values common to all mankind;

founding ourselves on our inalienable right to self-determination;

supported by the centuries-long history of development of Belarusian statehood;

striving to assert the rights and freedoms of every citizen of the Republic of Belarus;

desiring to maintain civic harmony, stable foundations of democracy, and a state based on the rule of law;

hereby adopt this Constitution as the Basic Law of the Republic of Belarus.

There are, of course, similar examples of sovereignty claims in constitutional texts that order polities outside of Eastern Europe. The preamble to the 1992 Spanish constitution mirrors those in the former Soviet satellite states. It includes specific reference to the “exercise of [the country’s] sovereignty,” the standard protections of human rights, democratic principles, and justice; a commitment to fostering the different “cultures, traditions, languages, and institutions” of Spain; and the “strengthening of peaceful relations and effective cooperation among all the peoples of the earth.” The third clause of the Turkish constitution’s preamble, originally adopted in 1982 under military rule but later amended in 2001 to reflect the first stage of constitutional and political reforms, sounds similar: “The understanding of the absolute supremacy of the will of the nation and of the fact that sovereignty is vested fully and unconditionally in the Turkish nation and that no individual or body empowered to exercise this sovereignty in the name of the nation shall deviate from liberal democracy and the legal system instituted according to its requirements.”

Claims of sovereignty within constitutional documents are not surprising when one considers how texts in the past half-century have become a regime’s primary calling card. Scholars have remarked that one primary function of the constitutional text in the modern era is to announce publicly the existence of an independent nation.³⁰ It is a rite of passage of sorts for a political regime to proclaim its arrival on the international scene by endorsing a constitutional text. Declarations of sovereignty, therefore, do not have to be explicitly mentioned in the constitutional document for there to be some tangible recognition of self-determination. The simple existence of a drafted and ratified constitutional charter—marking a transformation from a prior political world to a new one—is often enough for a country to declare its sovereign statehood.

Positive Rights

The promise of positive rights (also known as “welfare rights”) has entered the imagination of constitutional framers lately. These claims, which differ dramatically from the traditional view of rights guarantees as principally limitations on the power of government, belong to the broader discussion of constitutional aspiration because they represent a particular type of constitutional promise, another style of promissory note, if you will. Most are not subtle. A guarantee of universal healthcare or the assurance of future employment surely makes a powerful statement when it is lodged alongside guarantees of free speech and freedom of conscience within a constitution’s list of individual rights. This is especially true when we consider the importance modern polities place on bills of rights—they are often viewed now as the nucleus of the modern constitutional instrument. These promises are not abstract in the way that expressions of a polity’s commitment to principles like justice, equality, and freedom are. Either the polity delivers on its promise or it does not. And yet in some sense positive rights are no different than codifying the general aspirations of a political society in the constitution’s preamble. They too represent promises made to present and future generations.

Over the past half-century, a number of constitutional charters have embraced the idea of positive rights.³¹ These assertions of positive rights typically take many forms, but they inevitably revolve around certain standard topics. Article 25 of the Japanese constitution is a unique example. Its broad language asserts, “All people shall have the right to maintain the minimum standards of healthy and cultured living.” More commonly found, though, are the more specific guarantees of access to healthcare, social security, housing, education, travel, employment, and environmental safety. A standard protection of economic rights, for example, might resemble the one found in the Argentine constitution. Chapter I, Section 14, clause 1 of that charter stipulates, “Labor in its several forms shall be protected by law, which shall ensure to workers: dignified and equitable working conditions; limited working hours; paid rest and vacations; fair remuneration; minimum vital and adjustable wage; equal pay for equal work; participation in the profits of enterprises, with control of production and collaboration in the management; protection against arbitrary dismissal; stability of the civil servant; free and democratic labor union organizations recognized by the mere registration in a special record.”

The South African constitution’s list of freedoms is remarkably aspirational. All rights guarantees in the South African text were drafted in the positive tense. From Chapter II, Article 19, which protects individuals exercising their “political choices,” through Chapter II, Article 35, which protects individuals’ due process rights, successive articles defend the right to citizenship, movement and residence, trade, occupation and profession, labor relations, the environment, property, housing, health care, food, water, social security, children, education, language and culture, cultural, religious and linguistic communities, access to information, just administrative action, and access to courts. Every single clause of every single article in the South African bill of rights is written in positive form.

Recognizing positive rights in a constitutional document begins with a subtle understanding of prose. There is a noticeable difference in the character of an individual right when it is framed by language encouraging the polity’s institutions to ensure the substance of the right, as compared to the character of negative rights, which simply insists that the polity’s institutions not interfere with the exercise of those freedoms. In other words, the language of positive rights is distinct from the language of negative rights in that the former is distinguished by an affirmative grant of freedom, while the latter is more accurately characterized by a limitation on the power of government.

The traditional understanding of rights is that their primary function is to remove certain choices from the often insensitive (and sometimes oppressive) will of majorities. In the words of Justice Robert Jackson, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied to the courts.”³² Historically, creating space for individual freedom by self-consciously constraining the power of political actors has been the favored mechanism for identifying rights. Positive rights, which take a fundamentally different approach to the creation of individual space, also help to constrain the power of political officials. And yet they do something more: they seemingly empower majorities (through their representatives in government) to actively secure specified freedoms. The nature of the tone of positive rights seems to mandate that these same political officials take affirmative steps to ensure that freedoms are not only protected but also distributed. If negative rights can be described as claims against the state, positive rights should be described as pledges by the state.

Take the right to free speech as an example. In Canada’s constitution, that freedom, like all others, is expressed as a positive right. Article II, Section B of the Canadian Charter of Rights and Freedoms states, “Everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” Ownership of the right is directed at the individual; each citizen, the clause admits, is entitled to a certain amount of space to disseminate reasonable or outlandish messages. The First Amendment to the U.S. Constitution, by contrast, speaks not of individual ownership of the right but of the government’s inability to restrict the right to free speech. Accordingly, the same right of free speech is expressed as a negative freedom: “Congress shall make no law…abridging the freedom of speech.” The space to express outlandish messages is still created, but it is done so by very different means. In other words, the right to free speech in each country amounts to roughly the same entitlement, but the manifestation of that right—of how that right is viewed by the public and enforced (or not enforced) by political institutions—is very different.

The problem arises when we consider how a polity intends to enforce those freedoms that it values so highly. Positive rights create very real expectations. That is not to say that negative rights don’t create expectations, but the expectations surrounding negative rights are of a different sort. Constitutions that rely on positive rights, including the South African, Canadian, and Japanese exemplars, also include a section in the text that outlines the process of enforcement.³³ Inevitably, that process involves the country’s judiciary. Because of these clauses, courts are then constitutionally charged with the responsibility of monitoring the success of government initiatives aimed at advancing the substance of the rights themselves. When a polity declares that every citizen has a right to adequate housing and then does not deliver on that promise, the onus falls to the judiciary to invent a solution that recognizes the constraints on political institutions and the need for a citizen body to have faith in the efficacy of its constitutional form. And that poses difficulties, especially if the courts do not have the power to enforce their own decisions.

In thinking about the Japanese constitution’s pledge to “maintain standards of healthy and cultured living,” Hiroyuki Hata remarks that the country’s courts could adopt one of three approaches. The first, the “abstract rights theory,” suggests that courts are empowered only to “declare” the government’s inability to sustain a “healthy and cultured living” as a violation of the text. They can do no more than publicly shame the government; their powers do not extend beyond that simple assertion. Under the second approach, defined as the “concrete rights theory,” courts are “legally obligated not only to declare the Diet’s failure to guarantee the minimum standards of wholesome and cultured living unconstitutional, but also to force the Diet to legislate in order to achieve this goal.” The third approach, which the author defines as the “programmatic declaration rights theory,” does neither. Under that approach, individuals are barred from seeking judicial remedy when their expectations go unmet.³⁴

If we assume that the three theories animating the debate over Article 25 of the Japanese constitution can be broadly applied to other political situations, the complexity of the entire discussion of positive rights comes more sharply into focus. The judicial response to the question of unmet expectations depends, of course, on the particulars of that regime’s political, constitutional, and historical traditions. Some polities will recognize judicial bodies that are able to command specific legislative action.³⁵ Most will not. And yet even if all courts are empowered to direct legislatures to provide the necessary resources to meet the constitutional standards today, those standards will eventually rise, giving way to the need for future courts to reenter the debate over positive rights. There is a never-ending theoretical cycle with positive rights; once you think you have met certain expectations, you realize that new expectations have been imagined and that they are now out of your reach. That is, the existence of positive rights helps to perpetuate those constitutional “gaps” Jacobsohn identified between the “actual”—defined here as the political reality of impotent courts, limited resources, and so on—and the “ideal”—as expressed in the constitution’s list of rights and liberties. In that sense the expectations created by the inclusion of positive rights in the country’s fundamental law are tantamount to precisely the same type of aspirations we now find in most constitutional preambles.

Insofar as positive rights help imagine a polity where all citizens meet a minimum standard of living, they contribute to the aspirational quality of the constitutional document. Their existence in the text is a subtle reminder that the polity has not yet achieved a state of political perfection and that the nation has not yet ended its quest by successfully “overcoming itself.”³⁶ Of course, this reality removes us completely from any debate over whether these rights are enforceable. To claim that an important function of a modern constitutional text is to articulate particular aspirations—to envision a polity that is superior to the one currently inhabited—does not depend on the capacity of the state to deliver on its promises. If our interest is simply to uncover the various functions of a constitutionalist constitution, it should not matter whether a political regime will eventually realize its goals. I think it is even fair to say that most will not.

If recent history is any indication, it seems that some constitutional framers, in fact, have very short memories. Despite witnessing the collapse of several political regimes because constitutional promises went largely unmet (including some Eastern European countries), these framers continue to view the constitutional document as the place where their most sacred values should be textualized. They fervently believe in the practice of embedding their most important aspirations in the country’s primary public document, even as they worry that such a practice will trigger, once again, the call for their services. These framers seem to subscribe to a common conviction: that a modern constitution needs to nurture a sense of renewal—a sense of hope—and that the most effective means for doing so is to embrace the principle of constitutional aspiration.

Conclusion

In the end, the central purpose of a constitutional text is to bind a citizenry around certain collective values or principles. “To constitute means to make up, order, or form,” Walter Murphy reminds us, and presumably that order should be animated or informed by a normative conception of the good.³⁷ A constitution is a polity’s attempt to model or design a blueprint for political perfection; it is a roadmap of sorts that sketches a plan for achieving a “more perfect union.” One of the central functions of a modern constitutional text, therefore, is to embrace certain clearly defined aspirations, to articulate the founders’ view of an improved society, and to identify the architectural mechanisms to make it happen. Preambles often perform the task of isolating the polity’s highest values, although by no means are they the only place where constitutional aims are mentioned. Somewhere within a modern constitutionalist text, in any case, we will find a proclamation of the polity’s deepest and most commanding aspirations.

We thus end where we began, with the words and ideas of scholars such as Robert Cover and Gary Jacobsohn. Cover, we might recall, insists that constitutions are the “projection of an imagined future upon reality,” while Jacobsohn contends that constitutions are “committed to the achievement of things seemingly beyond [their] immediate reach.” Both, of course, are correct. Constitutional texts that subscribe to the principles of constitutionalism and that are defined as mostly authoritative by those in power inevitably imagine a polity that is beyond our current conception of reality. In some sense, then, the enterprise of constitution-making includes an engagement with fantasy; it is a political project that rests almost entirely on the belief that an appropriate constitutional design will help deliver a more promising collective future. But it is even more than that. The principle of constitutional aspiration goes to the heart of the continued use of texts as means to order political societies. Indeed, the idea that future generations are beholden to particular constitutional limits imposed by people of the past is perhaps made more palatable if those in the present recognize that they play an important part in an aspirational journey, for to actualize a “more perfect union” requires that the values articulated at the founding be advanced—and in many cases shaped—by every succeeding generation.³⁸ The constitutional text, as it is constructed to do, thus ties the past, the present, and the future to the promise of a better world.