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Breslin, FROM WORDS TO WORLDS

By Jack M. Balkin

From Words to Worlds: Exploring Constitutional Functionality explores the function of constitutional text. This is an exceptionally important question, one that is too rarely asked by a literature obsessed by questions about what constitutional texts mean and who are the authoritative interpreters of that text. Professor BeauBreslin explores a deeper question. What does a constitutional text do merely by existing? His work suggests constitutions perform numerous functions. They destroy old polities, they create new political orders, they express a hope for a better future, they design a government, they attempt to mediate particular conflicts, they provide recognition to certain social groups, they empower government to act, and they limit government. The chapters then go on to explore each of these functions at length.

This is an important work. Questions about constitutional functions too often get subsumed into questions of constitutional interpretation when, in fact, we cannot know how to interpret a constitution until we know the point of constitutionalism. Professor Breslin explores various constitutional functions in loving detail. This is a work written by a scholar who knows how to express complex ideas clearly and is well versed in the literature on public law, political theory, and comparative constitutionalism. The chapter on constitutional aspirations is particularly fascinating. From Words to Worlds notes the increasing role preambles are playing in contemporary constitutions. Aspirations are more detailed. Belarus spells out in loving detail all the wonderful things that might happen as a result of ratification. Other countries spell out their distinctive histories and aspirations, as well as their perceived place in the international order. As important, rejected practices are now often spelled out. The South African Constitution begins by "recognis[ing] the injustices of our past." One could teach a very good comparative modern history course, Professor Breslin?s work suggests, just from reading the preambles to modern constitutions. The materials in the chapter on constitutional recognition are also important. One of the central concerns of modern constitutionalism is inclusion. Modern constitutions solve this problem by making specific mention of those groups that will be protected. The Constitution of Canada specifically points to minority language rights. The Constitution of Israel, by comparison, indicates that Jewish citizens will enjoy favored status in the regime. Professor Breslin is aware, of course, that a gulf exists between what a constitution says and what actually happens on the ground. Still, he is correct to point out that the mere fact of constitutional recognition is likely to influence at least initial acceptance of a constitution. Once a group buys in, getting out may prove difficult for numerous reasons.

From Words to Worlds is an optimistic work. Constitutions for the most part are considered desirable. Everyone ought to have one and the more modern, the better. Although the work was published in a series edited by Sandy Levinson, we hear very little of Constitutions as iron cages or, from my dismal perspective, problems of constitutional evil. Still, the optimism may be warranted by the nature of the project. Professor Breslin is interested in the wide variety of tasks constitutions are expected to perform and less in their actual workings over time. As his manuscript documents, these tasks are complex, vary by time, and vary interestingly by nation. Constitutional pessimists will have much to learn from this work, even as they think harder about why constitutions often fail to function as expected.

Full post as published by Balkinization on January 16, 2009 (boomark / email).