New book by Joshua Braver explores the perils and promises of illegal constitution-making by ‘the people.’
Rules are sometimes meant to be broken. And in the case of Joshua Braver, who grew up a bit of a rebel, it makes sense that he’d wrestle with that idea in his first book.
“As a teenager, I thought an unjust rule should be violated as quickly as possible,” said Braver. “But as I matured, I quickly realized that you had to be careful about how you fix an unjust rule so that you don’t accidentally create chaos or even more injustice.”
Since then, the question that’s always confounded Braver, an assistant professor at University of Wisconsin Law School, is “What are the moments and ways in which rules should be broken?”
“We are most familiar with this question when it comes to civil disobedience in which Martin Luther King Jr. said unjust laws should be broken ‘openly, cheerfully’ and the violator should accept punishment,” he said. “But I realized the same dilemma, the same need to develop a code for law-breaking, arises when you try to create a new constitution.”
In “We, the Mediated People: Popular Constitution-Making in Contemporary South America,” recently published by Oxford University Press, Braver explores this topic by examining the perils and promises of illegal constitution-making by “the people,” who are the ultimate source of authority for a constitution.
But who are “the people”?
“In key moments and fresh from overwhelming electoral victories and with a mandate to create a new constitution, new political actors invoke ‘the people’ to justify violating the old constitution’s overly restrictive amendment rule,” Braver explained. “But this illegality unleashes the possibility of chaos or despotism. Populists around the world are exploiting these moments of constitution-making to centralize power in their own hands.”
“I realized that, in addition to reading the greatest minds of the 19th century on both sides of the Atlantic, I could interview people who were drawing upon those texts today and adapting them for the current moment.”
In “We, the Mediated People,” Braver examines how and how not to violate law so an old constitution might be overthrown while still protecting democracy.
Braver argues that, through the “extraordinary adaptation” of old institutions, “the people” and its constitutional convention may include all parties.
“Rather than overthrowing old institutions and opening a legal void, in extraordinary adaptation, the revolutionary party gains offices through democratic elections and then repurposes the old regime’s institutions by bending, reinterpreting and even breaking their rules,” he explained. “However, it never creates a legal vacuum, and this partial legal continuity facilitates the participation of old parties that continue to hold some power in the previous constitution’s institutions.”
The adaptation must be principled, he said. The revolutionary must first exhaust all legal channels, openly acknowledge the violation to seek popular vindication, and concede enough to the opposition so that it may begrudgingly acquiesce to the new constitution.
Braver further develops his theory by examining all four instances of popular constitution-making in contemporary South America, “the region with the most holdings of freely and fairly elected constitutional assemblies within liberal democracies after the end of the Cold War.”
“I show how populist leaders in Venezuela and Ecuador established semi-authoritarian constitutions through lawless and exclusive constitution-making, while Colombia and Bolivia managed to avoid the same fate by engaging in extraordinary adaptation,” he said.
Braver originally intended to write about the debates between founding figures in the 19th century American and French Revolutions. That all changed when he discovered these same debates were being refought today in South America.
“I realized that, in addition to reading the greatest minds of the 19th century on both sides of the Atlantic, I could interview people who were drawing upon those texts today and adapting them for the current moment,” he said.
It was a “thrill,” said Braver, to speak with today’s founders, who are still wrestling with the same concepts articulated by James Madison and Alexander Hamilton centuries ago.
“I think we as Americans often fail to understand how the creation of the U.S. Constitution was wacky and illegal. But it wasn’t lawless,” said Braver. “How, then, was it legitimate? Why didn’t chaos engulf the United States the same way it did the French Revolution? And how can we replicate that success again today? My book touches on some of these thoughts.”