Abstract
Angélica Bernal’s incisive new book begins by posing a deceptively straightforward question: “What is a founding?” As Bernal notes, invocations of foundings, founders, and foundational principles are common in everyday political discourse, and these invocations imply, even when they do not actually articulate, a ready answer to her question. “Founding, this view tells us, is the original event at which a constitution is drafted and a democracy attains legal identity and political authority. It is an authoritative moment that fixes something supreme in the life of a constitutional democracy: its higher law and a defining set of political commitments, principles, rights, and values that anchor its continued life” (1). But Bernal argues that this familiar vision begs as many questions as it answers. Who does the drafting and on what grounds do they claim the authority to draft? Exactly when do the principles, rights, and values fixed in the course of a founding become fixed, and for how long should they remain fixed? Who makes up the collectivity that acquires legal identity and political authority in a founding? Who were they before the founding? What can they become afterward?
These questions have been posed before, and the difficulties that arise in answering them have inspired some of the most notorious doctrines in the western canon. Plato suggested that a creation mythology should be disseminated amongst the subjects of his imaginary polity to secure their initial acceptance of the places and prospects they were allotted under the regime. Machiavelli insisted that a “new prince” must have recourse to almost any means necessary if he was to accomplish the almost impossible tasks of assuming and maintaining his status. And Rousseau made the essential paradox presented by the founding of a legitimate government explicit: “For an emerging people to be capable of appreciating the sound maxims of politics and to follow the fundamental rules of statecraft, the effect would have to become the cause. The social spirit that ought to be the work of that institution would have to preside over the institution itself. And men would be, prior to the advent of laws, what they ought to become by means of laws.” On Rousseau’s account, only the intervention of an extraordinary founder could resolve this dilemma. 1
Contemporary political theorists are more resigned to the paradoxes of political founding. Some, including Bruce Ackerman, Jürgen Habermas, Andreas Kalyvas, and Paulina Ochoa-Espejo, offer different accounts of provisional foundations upon which constitutional democracies can claim legitimacy in the present, while acknowledging the injustices of the past, and without foreclosing future revisions. 2 Others, including Bonnie Honig, William Connolly, and Jason Frank, argue that efforts to resolve the theoretic and historical tensions inherent in foundings should be abandoned, suggesting, again in different ways, that we should acknowledge the irresolvable philosophical problems present in our political concepts and embrace an image of politics as necessarily involving persistent and often generative conflicts concerning foundational matters. 3
While drawing insights from both these literatures, Bernal declines to work within the terms that have defined their debates. Instead, she proposes a “political conception of founding,” intended to “shift our attention from founding as a theoretical problem” to founding as “a distinctive mode of political action” (10–14). That is to say, rather than offering another partial solution to the paradoxes of political founding, and rather than insisting that no such solutions are possible or desirable, Bernal argues that political theorists should theorize and study in concreto “the politics, dynamics, and processes by which constituent politics is constructed and constituent change emerges” (237n20). She offers two major guidelines for this research. First, foundings must not be regarded as points of origin in which institutions are created and principles are adopted on a blank slate or forged out of chaos. Rather, foundings are forms of political action undertaken against a background of existing institutions and established principles that influence the founding process itself and its outcomes. Second, foundings are not moments of authorization but “underauthorization.” The authority claimed by founders is never unassailable, and indeed founders’ claims never go unassailed. Consequently, the revisions that foundings accomplish are always determined by a complex interplay of precariously included and excluded actors, who encounter an existing configuration of institutions and principles “whose authority is itself in question and whose own political efficacy and legality may be shaky” (13).
Bernal explores these arguments through a series of strikingly diverse set of case studies, which she describes, following Lisa Disch, as “training the imagination to go visiting,” a practice of “travelling” that she argues can “loosen the grips of the conventional view on foundings” (20). The first set of case studies are intended to expose the problems present in this conventional view. Chapter one describes how twentieth- and twenty-first-century political movements, including both the Civil Rights movement and the Tea Party movement, invoked the founding principles of the United States, faulting both for “conflat[ing] the normative authority of a regime for its de facto one,” and consequently placing the claims they rest upon these invocations “beyond question” (16). Chapter two takes us back in time and across the Atlantic, offering a critical reading of Plato’s Laws, where Bernal finds “one of the first manifestations of the problematic conception of founding as the authoritative beginning” (55). Chapter three returns to the Americas, comparing several documents from the United States and Haitian Revolutions that exemplify the specific difficulties inherent in founding democratic forms of government. Here, Bernal argues that while the founders of the United States sought to “cover over” deficits in democratic legitimacy of the founding, Haiti’s revolutionaries developed an “alternate model of engagement that is more attuned to the complexities in revolutionary founding politics” (100).
In a second set of case studies, Bernal develops her own alternate model. Chapter four focuses on Livy’s monumental history of Rome’s founding, Ab urbe condita libri. In contrast to Plato, Civil Rights, and Tea Party activists, Bernal shows that Livy presents founding as an ongoing, iterated form of political action driven “less by the authority of the past” than by “response[s] to changing circumstances and the exigencies of the present” (112). Chapter five shifts to twenty-first-century South America, describing the promise and the perils of “presidential refounding,” as exemplified by Hugo Chávez, Evo Morales, and Rafael Correa’s leadership of participatory constitutional reforms in Venezuela, Bolivia, and Ecuador, respectively. Chapter six offers a sympathetic interpretation of Thomas Jefferson’s infamous 1789 letter to James Madison, in which Jefferson stunned Madison by questioning “whether one generation of men has a right to bind another” by means of a written constitution. Bernal places Jefferson’s letter in the context of the French Revolutionary upheaval to which he was a direct witness, and finds in his missive an account of “regenerative founding”—a “compelling thesis for ongoing foundational change that does not reject the possibility of constitutionalism, but instead recasts foundation building in a more radically democratic way.” Finally, chapter seven examines anti-segregationist activism by Mexican American parents in mid-twentieth-century California, culminating in the 1947 Supreme Court case Méndez vs. Westminster School District, an important decision that has long been over-shadowed by the later, and much better-known, Brown v. Board of Education. Shedding light upon Méndez and its attendant politics allows Bernal to argue, in compelling fashion, for a “capillary” conception of foundings, according to which, “for every large-scale founding process, there are multiple other capillary foundings and refoundings that nourish it” (195).
Bernal’s challenging theoretical account of the politics of founding frames each of these case studies, drawing interesting new insights from familiar figures and texts, and motivating interest in events and ideas that political theorists have not thoroughly explored. More profoundly still, by foregrounding political dynamics rather than theoretical paradoxes, Bernal’s studies challenge political theorists to consider foundings—and perhaps other foundational concepts—from a determinedly “anti-foundationalist” perspective, as “an ongoing, dynamic, and contestatory aspect of political life” (15). Here, though, while Bernal’s approach departs markedly and productively from standard approaches in political theory, it does so in a direction that historically minded social scientists may find familiar. Indeed, scholars working within the diverse literature often described broadly as “historical institutionalism” have anticipated some of Bernal’s important insights.
Since Ruth Berins Collier and David Collier’s 1992 Shaping the Political Arena brought the concept into wide usage, historical institutionalists have developed a rich body of theory and conducted extensive empirical studies of what they call “critical junctures”: periods during which the path-dependent processes that ordinarily make established institutions difficult to abolish or reform weaken, and the complex interactions of groups pursuing different and often conflicting agendas effect profound changes in political and legal institutions, modes of economic organization and exchange, social norms and cultural products. 4 Like Bernal, contributors to this literature deny that critical junctures can be coherently treated as “origins” that create institutions outside of time or on an open field of possibilities. Rather, their accounts of critical junctures emphasize how pre-existing institutions shape the interests, identities, commitments, and affiliations of political actors, investing groups with different quantities and qualities of power and influence, and constraining choices concerning both the ends that actors pursue and the means they employ in their pursuit. There are also analogues within this literature for Bernal’s accounts of “retrospective legitimation” and “underauthorized authorization.” Historical institutionalists have argued that the institutional changes enacted during critical junctures stabilize only gradually, over long periods of path-dependent reinforcement, and always incompletely, remaining subject to both everyday political tinkering and to the more radical reformism of a new critical juncture. Finally, historical institutionalists have developed theoretical resources to address some conceptual difficulties common to their own critical junctures framework and to Bernal’s political conception of founding that Bernal does not consider. In particular, historical institutionalists have been concerned to distinguish institutional changes occurring within critical junctures from other kinds of institutional change, variously described as “conversion,” “layering,” and “drift,” that can occur despite or even because the path-dependent processes that are weakened or suspended during critical junctures remain in full effect. Bernal does not have an analogous means within her own framework for distinguishing foundings from other periods of political activity that produce changes in existing ideas and institutions. Indeed, she denies that foundings should be regarded as “extraordinary” moments with “distinctive sets of dynamics and problems,” insisting instead upon describing “the politics of founding neither as strictly extraordinary nor ordinary but instead as underauthorized” (228–89). There is some indeterminacy in the argument here, which could perhaps be corrected through engagement with historical institutionalism.
There are also parallels, and possible sites of productive engagement between the research designs and methods used to illustrate Bernal’s political conception of founding and the critical junctures framework in historical institutionalism. Collier and Collier argue that the different ways in which labor organizations were “incorporated” into political systems in Latin America during the first half of the 20th century shaped medium- and long-term trajectories of party competition, regime stability, and conflict. To support this account, they employ a series of paired comparisons, juxtaposing very different states that had similar political experiences attributable to the similar forms in which organized labor first gained a foothold in national politics. Other historical institutionalists, including Theda Skocpol, Margaret Somers, Charles Ragin, James Mahoney, and Tulia Faletti, have honed this historical-comparative method, originally inspired by John Stuart Mill’s methods of “difference” and “agreement,” making it a powerful research tool. 5 Bernal also uses paired comparisons in her book. The two parts of the book make up the main pairing, contrasting problematic cases and accounts of political founding with more promising ones: Civil Rights and Tea Party activists’ invocations of a singular, original founding constrict the politics of founding in ways that Livy’s history of Rome’s serial re-foundings does not; the relationship Plato describes between a lawgiver and those subject to his laws is more attenuated than the ones built by left-leaning Latin American presidents, though the latter are not perfect; Thomas Jefferson covered over democratic deficits in the Declaration of Independence that he later confronted more directly in his letter from Revolutionary France. These contrasts are illuminating, but they do not and cannot do the work that paired comparisons do in historical institutionalist scholarship, because they are not designed to identify the factors that distinguish the paired cases. We are left wondering why some foundings and accounts of foundings approach or achieve Bernal’s re-formulated ideals while others do not.
Bernal does suggest an answer to this question, which is reflected in her choice of cases, but is not consistently present as a contextual feature that distinguishes each pairing: “the constituent power of the excluded” (230). In most of the cases Bernal uses to construct and illustrate her positive account of founding as the politics of underauthorized authorization, the protagonists are what Bernal describes as “marginalized or excluded individuals and groups”: the former slaves and free people of color who led the Haitian Revolution; the Mexican American parents who fought California’s segregated schools; the poor and indigenous Ecuadorians who supported Rafael Correa’s presidential candidacy and constitutional reforms; the Sabine Women; and Lucius Junius Brutus, who despite his royal lineage was a precarious participant in Roman politics because of a perceived intellectual disability. At different points, Bernal argues both that our accounts of historical foundings will be improved the more adequately they recognize the important contributions such individuals and groups have made, whether as primary or “shadow” constituent powers during founding periods, and that future foundings will be more adequate to the constitutional democracies they found to the extent that they mitigate the marginalization and exclusion of such individuals and groups.
Both of these theses concerning the constituent power of the excluded are compelling in their own right, but the latter, critical and prescriptive thesis, which in a sense connects Bernal’s interpretive and historical “political conception of founding” back to the normative and theoretical paradoxes that exercised her predecessors, is particularly striking and deserved more emphasis in the book. Would a world in which political thinkers and activists accept that there “is no perpetual people, nor is there perpetual law, only differing legal and constitutional arrangements—the power and authority of which depend on the real-world politics, institutions, governments, and individuals that are the sights of its application” (234) be a more equal world? A fairer world? A freer world? Perhaps. But, by the same token, perhaps the rhetorical power and transcendent appeal of these foundational ideals depends upon the mystical aura in which we habitually wrap the foundings in which they have been invoked and the founders who invoked them. Angélica Bernal’s book asks us to abandon the comfortable fixed points of our politics and political thought, to embrace the uncertainty and indeterminacy of a politics without foundations. For that challenge alone, it deserves careful consideration.