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Nation as a Constitution-Making Power

April 3rd, 2008

(Lidija R. Basta Fleiner)

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Marbury. v. Madison.

• “That the people have an original right to establish for their future government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. (…) The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

• This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

• The government of the United States is of the latter description. The powers of the legislature are defined and limited, and that those limits may not he mistaken, or forgotten, the constitution is written”.

• Major principles referred to:

– Sovereign people -> nation - > pouvoir constituant = legitimacy – Constitutionalism as legally established limit and control of

political power, including the sovereign (fundamental law)– Is sovereign people/democracy also limited by the constitution,

and if so – to what extent?

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Three major points in Marbury v. Madison:

• Nationalism started as people’s sovereignty, i.e., democracy (citoyenneté, citizenship)

• Citizenship = principles of a membership of a nation

• Different understanding of the pouvoir constituant builds on different understanding of the relationship between constitution and democracy

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The Aim of the Class

• To map out different concepts of citizenship, which underlie the legitimacy principles of modern state, and to

point to emerging challenges to such principles

• The starting point: US and Switzerland Compared. Differences in Understanding Democracy – Constitution- Relationship

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Outline

• 1. U.S. and Switzerland Compared

• 2. Modern/Liberal Nationhood Re-Capped

• 3. Major Shift in Nation-State of Today

• 4. Fazit: Whose is the State?

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1. The underlying differences between the American and the Swiss Understanding of Nation as Pouvoir

Constituant - U.S. people v. Swiss people and Cantons

• Different concepts of nation, i.e. two different bases of democratic integration -individualist vs. communal civism

• Different understanding of the principle of people’s sovereignty • Different legitimacy principles -> procedural v. substantive

legitimacy formula• Different concepts of State and Constitution• Representative vs. participatory understanding of democracy

a c c o r d i n g l y:

• Different types of federalist argument -> Madison vs. Althusius -> • Different institutional set-up of the federal state

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2. Nationalism and Democracy. Multicultural Challenge

• Demos/”Demos” vs. Nation(s) - > Particularity

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A Culturally Homogeneous Nation-State Is a Basis for Modern/Liberal Democracy

J.St.Mill, 19th ct.: „Free institutions (democracy –LB) are next to impossible in societies with different nationalities“ (John St. Mill – 19th ct.)

F.Fukuyama, 2006: “The more serious challenge (then terrorism –LB) facing liberal democracies today concerns the integration of immigrant minorities –particularly those from Muslim countries – as citizens of pluralistic democracies.(…) Europe has become and will continue to be a critical breeding ground and battlefront in the struggle between liberal democracy and radical Islamism, which is a manifestation of modern identity politics, a by-product of the modernisation process itself.

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2. cont.: Types of Nationhood/Citizensip

• citizenship without/against ethnicity (USA - individualistic, France- collectivistic )

• citizenship out of (one!) ethnicity (Germany unlike South Eastern Europe!))

• 1+2: (democratic) civism through democratically integrated ethnicities (CH)

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Examples

• US Constitution of 1787 (Preamble) : „We the people ….• US Supreme Court on US Nation:• „ Racial and ethnic distinctions of any sort are inherently

suspect and thus call for the most exacting judicial examination… This perception of racial and ethnic distinctions is rooted in our Nation‘s constitutional and demographic history“. (Regents of Univ. of California v. Bakke, 1978)

• Swiss Constitution of 1999 (Preamble and Art. 2):• ….• We, the Swiss people and Cantons,• …..• are determined to live our diversity in unity respecting one

another;• Art. 2.(Purpose): The Swiss Confederation „…. shall promote

cultural diversity of the country“

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French Nation

• What is a nation? A body of associates, living under a common law, and represented by the same legislature. (Sieyes: "What is the Third Estate?)

• Nation is a “daily plebiscite” (Renan)

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Das Grundgesetz Deutschlands

•  IM BEWUSSTSEIN SEINER VERANTWORTUNG VOR GOTT UND DEN MENSCHEN, VON DEM WILLEN BESEELT, ALS GLEICHBERECHTIGTES GLIED IN EINEM VEREINTEN EUROPA DEM FRIEDEN DER WELT ZU DIENEN, HAT SICH DAS DEUTSCHE VOLK KRAFT SEINER VERFASSUNGSGEBENDEN GEWALT DIESES GRUNDGESETZ GEGEBEN.

• DIE DEUTSCHEN IN DEN LÄNDERN (…) HABEN IN FREIER SELBSTBESTIMMUNG DIE EINHEIT UND FREIHEIT DEUTSCHLANDS VOLLENDET. DAMIT GILT DIESES GRUNDGESETZ FÜR DAS GESAMTE DEUTSCHE VOLK. 

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3. Major shift

1. A nation-state is per se mono-cultural/national:

2. Nation-state emerges as multicultural/national:

In consequence, the following typology of ethnicity influences a nation concept:

a/ the “disease model” (assimilation) – citizenship without/against ethnicity

b/ the emancipation model (integration) – citizenship out of democratically integrated ethnicity/ies

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3. cont.: Council of Europe on Multicultural/Multinational Citizenship

• Parliamentary Assembly Recommendation 1735 (2006): “The general trend of the nation state’s evolution is towards its transformation, depending on the case, from, a purely ethnic or ethnocentric state into a civic state and from, a purely civic state into multicultural state.”

• NB: It is for the first time that multicultural citizenship/nationhood has been addressed within the international setting outside of academic debates!

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• Report on the concept of “nation”

• Committee on Legal Affairs and Human Rights • Rapporteur: Mr György Frunda, Romania

• The aim is to determine whether, and to what extent, the concept of nation – a rethought, modernised and revitalised concept – can help to address the question of national minorities in 21st century Europe. Such a concept evidently comprises a political dimension and an equally important legal dimension. It is obvious, however, that the political dimension has been overlooked, in the debate on the rights and obligations of national minorities, and has been for decades.

• I do not think it is important to formulate a new concept of nation. The real issue behind the debate about a possible “21st century concept of nation” is not the definition itself, but the acceptance of a new way of thinking, of

• rethinking the nation,(?! – L.B.) and specifically the transversality of the nation across boundaries – a nation often, but not always, deeply rooted in history. Following the two world wars in the 20th century, national borders were redrawn and, as a result, parts of the kin-state now live in the territory of one of the neighbouring states, where they represent “national minorities or communities”.

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• 104. It is important that the Council of Europe member states incorporate into their national legislation provisions accepting national communities (minorities) on their territory, and that they apply them in good faith. These national communities (minorities) created as a result of changes in national borders – and not by migratory movements – represent traditional national minorities (communities). They must enjoy collective and individual rights in order to preserve, express and foster their national identity, as provided for in Assembly Recommendations 1201 (1993) and 1623 (2003) and the Framework Convention for the Protection of National Minorities. According to Recommendation 1623 (2003), “the Assembly considers that the states parties do not have an unconditional right to decide which groups within their territories qualify as national minorities in the sense of the framework convention. Any decision of the kind must respect the principle of non-discrimination and comply with the letter and spirit of the framework convention.”

• Likewise, the Council of Europe member states are invited to sign and ratify – if they have not yet done so – the Framework Convention for the Protection of National Minorities, the European Charter for Regional or Minority Languages and the European Charter of Local Self-Government, which can become important instruments in preserving the national identity of national communities (minorities).

• The most important role in preserving the identity of national communities (minorities) falls to the state of which the persons belonging to national minorities are citizens. These states should apply the principle of positive discrimination to national minorities, especially with regard to national identity and proportional representation in de-centralised institutions (including executive-level bodies) in the regions where those minorities live. -> A NEW NATION CONCEPT, NEVERTHELESS?!

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Example: 1998 Quebec Decision of the Supreme Court of Canada

The four foundational constitutional principles:

• Federalism

• Democracy

• Constitutionalism and the rule of law

• Respect for minority rights

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Quebec Decision cont.

• The social and demographic reality of Quebec explains the existence of the province of Quebec as a political unit and indeed, was one of the essential reasons for establishing a federal structure for the Canadian union in 1867... in such a way as to promote their language and culture.

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Quebec Decision cont.

• Democracy is commonly understood as being a political system of majority rule. It is essential to be clear what this means.

• ....• Democracy is not simply concerned with the process of government.

On the contrary, as suggested in Switzman v. Elbling, supra, at p. 306, democracy is fundamentally connected to substantive goals, most importantly, the promotion of self-government.

• Democracy accommodates cultural and group identities:

• The Court must be guided by the values and principles essential to a free and democratic society which embody, ...respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

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Quebec Decision cont.

• 72                              The constitutionalism principle bears considerable similarity to the rule of law, although they are not identical.  The essence of constitutionalism in Canada is embodied in s. 52(1) of the Constitution Act, 1982, which provides that "[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."  Simply put, the constitutionalism principle requires that all government action comply with the Constitution.  The rule of law principle requires that all government action must comply with the law, including the Constitution.  This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy.  The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455).  They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.

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• BBC News,28 November 2006: Canada‘s parliament has approved a government motion recognising the people of mostly francophone Quebec as a nation within a united Canada.

• The motion passed by 266 votes to 16!

• A Cabinet minister resigned in a protest, saying he could not support recognition of what he called “ethnic nationalism” .

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4. Fazit: Whose is the State?

• Whose is is the State, i.e.: • Who belongs to the nation within a State, i.e.: • Do all those who have a nationality/passport

automatically belong to the nation as equal members of a political community; do minorities as such belong to the nation?

• Where can we see to whom the state belongs? – In a constitutional preamble!