The Complex Relationship between Constitutional Idolatry, Literacy and Identity

Brian Christopher Jones and Maartje De Visser

University of Sheffield and Singapore Management University

We began this symposium asking three questions that ought to be at the heart of debates about the functions and operation of constitutions: how much value should be attributed to these texts; what is their relationship with state identity and culture; and what should citizens know about their national constitution? In this concluding post, we offer several general observations on the interplay between the notions of idolatry, identity and literacy, drawing on the rich country accounts provided by the symposium contributors.  

Part of the inspiration for this symposium came from a recent book by one of us, arguing that the importance of written constitutions for state success (e.g. overall functionality, maintaining or enhancing democracy, upholding rights, etc.) is generally over-stated and cautioning against over-reliance on these documents to protect cherished ideals. After all, if the great constitutional writing experiment has been the resounding success it is often made out to be, then why is the state of many constitutional democracies so precarious, and why do people around the world possess less faith in democracy than ever? Placing all the blame on contemporary politics, ‘populism’, or the political realm seems reductionist, and may limit our thinking about viable means to improve the contemporary state of constitutional affairs. Some posts in this symposium pointed to constitutional idolatry as liable to negatively impact on democratic health.  

A first drawback is that constitutional idolatry can prevent constitutional upkeep, in the sense of refashioning institutions and processes to ensure their suitability to meet the needs of modern societies. This risk may be particularly pronounced for older constitutions, and Sandy Levinson poignantly argues that the veneration among the American people and elites towards their Constitution, the longest surviving written charter, has become a ‘clear and present danger’. He identifies several major aspects of the US constitutional settlement, such as the apportionment of Senate seats or the Electoral College, as factors that have contributed to dysfunctionality within the country. Levinson accordingly questions the appropriateness of the reverence with which the US Constitution is treated, especially if this prevents pro-democratic constitutional change from taking place.  

Secondly, in the context of ordinary politics, constitutional idolatry can be used strategically for self-aggrandizing purposes, as Tarik Olcay illuminates in his case study of Turkey. Olcay describes how political actors profess to share the general public’s deep respect for the constitution, while at the same time adopting measures that change, and sometimes undermine, core facets thereof in pursuit of particular political agendas. As the large-C text formally remains intact, the traditional enchantment with the constitution means that it can be more difficult to appreciate its hollowing out and enforce public accountability, even within the judicial context. Olcay grimly notes that the ruling Justice and Development Party (AKP) might even deliberately play on the general public sentiments vis-à-vis the constitutional text to obfuscate creeping authoritarianism. Thus, excessive fascination with constitutional text may prove to be a distraction, rather than a bulwark, against increasing authoritarianism or democratic decay.   

Other accounts of constitutional idolatry were less bleak, as contributors suggested there may be a time and place to approach the large-C text with great respect. Stability was identified as one possible beneficial side-effect of constitutional idolatry. Chien-Chih Lin believes that Taiwan’s 1947 Constitution has been an important force in establishing a durable political and social order, despite the inclusion of several highly problematic provisions, such as references to the ‘One China’ principle and explicit mention of unification. General respect for the Constitution’s bill of rights and institutional arrangements has helped the liberal democratic principles undergirding the written provisions to become ingrained, which appears to have created a virtuous cycle. As Lin observes, the presence of a written text to help foster a democratic constitutional culture may hold particular appeal for transitional or younger liberal constitutional regimes.  

In a related vein, Manon Julicher puts forward in her post about the Netherlands that strong allegiance to the constitution matters especially during challenging times, as these constitutional stress-tests can foster or impair the creation of a culture in which the constitution can effectively perform its constraining function. While in its domestic context the Dutch Constitution is typically given short shrift, without significant adverse consequences for the country’s liberal democratic credentials, this attitude endured during the COVID-19 pandemic, and culminated in the adoption of restrictive measures with insufficient democratic input. While the questionable measures lasted nine months, they were eventually replaced by an Act of Parliament. Ultimately, Julicher asserts that when political leadership practices constitutional deference under conditions of crisis, this will benefit the population’s trust in the rule of law.    

Most arguments in favour of constitutional veneration latched on to textual provisions with a strong identity-dimension. These provisions are treated by some as capturing deeply felt societal beliefs or shared mores. The posts by Akiko Ejima and Arun Thiruvengadam suggest that attempts to enact legislation impinging on identity-clauses, or to amend such clauses, may accordingly cause unease among the general public. Ejima notes that the government’s proposed changes to Article 9 of the Japanese Constitution (the renunciation of war clause) elicited a more cautious popular response about the need to do so, as compared to when the question of changing this provision was presented to the public in the abstract. In his contribution, Thiruvengadam discusses how popular devotion to the values enshrined in the preamble of the Indian Constitution was influential in mobilising opposition to the controversial Citizenship Amendment Act 2019, with parts of the preamble frequently chanted as a rallying cry during protests. While the Act was ultimately enacted as law, it has yet to be widely enforced by the government, an outcome that Thiruvengadam partially attributes to the special place that the Indian Constitution holds in the hearts and minds of the citizenry.  

But constitutional identity is a dynamic concept, whose meaning can evolve even in the absence of formal changes. While Ejima and Thiruvengadam question the merits of shaping constitutional identity through statute or formal amendment, James Allan pointedly asserts that the judiciary ought not to take centre stage in fleshing out a polity’s identity or individuals’ connection to a country. Focusing on a recent ruling of the Australian High Court in which this Court probed into the relationship between Australia and its Indigenous Peoples was examined, he shows how the judges employed what he calls ‘intuitions’ about these issues, referring to concepts such as ‘otherness’, ‘deeper truths’ and spiritual links in this regard. While the use of such concepts may be unavoidable, it means that the countermajoritarian objection looms very large. Rather, Allen posits that the extra-legal quality of constitutional identity lends itself more to discursive exchanges on the parliamentary floor, which enables a richer, more diverse, and more legitimate venue for such important discussions to take place. But as the contributions by Ejima and Olcay demonstrate, constitutional evolution outside the courts may still remain elite-driven and occur largely out of public view.   

More generally, perusing written constitutions only yields partial and at times misleading accounts of national identity. As Lin’s post highlights, looking to Taiwan’s large-C constitution to uncover the national sense of self may be a highly fraught exercise: the language of the 1947 Constitution, with its references to ‘national unification’ with the mainland area and the ‘One China’ principle does not reflect the beliefs and loyalties of large swathes of the population. Instead, if one truly wants to understand how Taiwan’s unique national identity contributes to the success of its constitutional democracy, then they need to look well beyond the written document.  

The tensions in relation to identity arise from the multifaceted expectations around what constitutions actually are and what they can be, mediating their aspirations and limitations. Can a supposedly ‘legal’ document that articulates state structures truly encapsulate the essence or vitality of a culture, or be expected to be the ultimate symbol of state expression? As much as one might wish to answer in the affirmative, it is clear that there are numerous challenges to this limited view of societal operation. For example, could it be argued that Hollywood shapes America’s national identity more than the Supreme Court, and certainly more than a written document that has already celebrated its bicentennial? And when looking for expressions of national identity, might Americans perhaps better turn to the influential works of Martin Luther King Jr and Toni Morrison, or to the renowned songs of Bob Dylan, than pour over the words of their Constitution?  

The point is that constitutional identity does not just go beyond a written document, but that a single written document simply cannot be expected to conclusively encapsulate national identity. Although written constitutions may convey important aspects of national identity, it should be recognised that such expressions only constitute small pieces of a larger and more sophisticated puzzle. Alterations to any of the small-c constitutional elements—or to the political and social fabric more generally—will inevitably affect operation of the codified constitution.  

These observations also have a bearing on what citizens know and ought to know about their national fundamental text. While the topic of literacy was touched on in many contributions to the symposium, one comes away with the impression that we often have a limited idea of what we mean by this, let alone what to expect from citizens and how to realise this in practice. Frequently, constitutional knowledge tests typically equate to some type of ‘gotcha’ exercise, with researchers seeking to reveal the public’s limited constitutional knowledge. We are sceptical of these types of tests. Citizens, by and large, understand how their democracies function and have a sense of what it means to belong to a given people or polity. The fact that they may have a lack of knowledge about constitutional specifics does not mean that they are indifferent to the well-being of their society and legal order, or care little for the national constitution. This does not mean that there is little point investing in efforts to improve constitutional awareness among the general public, but in doing so, certain parameters should be considered. Literacy-boosting initiatives should be creative (see the examples discussed by Thiruvengadam), and leverage the public’s concern for democratic health. Perhaps most importantly, such initiatives should steer clear from propagating the constitution as a cult-like object rather than as an instrument that lends itself to meaningful engagement and about which reasonable people may hold sharply divergent views.  

We hope that the posts in this symposium shed new light on the operation of constitutions in a variety of settings and may have provided inspiration for future research on the potential, limits and complicated drawbacks of the large-C constitution. Most importantly, we hope that you have enjoyed reading the posts in this series. Special thanks to all our contributors, and also to the IACL for hosting this symposium.   

Brian Christopher Jones is a Lecturer in Law at the School of Law, University of Sheffield.  

Maartje De Visser is an Associate Professor of Law at the School of Law, Singapore Management University.  

Suggested citation: Brian Christopher Jones and Maartje de Visser, ‘The Complex Relationship between Constitutional Idolatry, Literacy, and Identity’ IACL-AIDC Blog (28 January 2021), https://blog-iacl-aidc.org/cili/2021/1/28/the-complex-relationship-between-constitutional-idolatry-literacy-and-identity.