Chasing Phantom Constitutions?

Tom Daly

Professor at Melbourne Law School

In his book Phantom Architecture, Philip Wilkinson offers that “some of the most exciting buildings in the history of architecture are the ones that never got built”: a mile-high skyscraper; a dome to cover most of downtown Manhattan; an enormous elephant-shaped triumphal arch (where the Arc de Triomphe in Paris now stands). Although these dreams and follies were never realised, they allow those dissatisfied with contemporary constructions to ponder what might have been. Of course, some of these designs could never have been built, not least because they presented insuperable engineering challenges. Yet, these phantom projects’ power to capture the imagination lies precisely in their freedom from the grubby reality of implementation. Inevitably – as long as one does not look too closely – they make even the most inventive real construction appear lamentably short on vision.

The same might be said of phantom constitutions – the constitutional texts, projects, and imaginaries produced as political plans, manifestos, or thought pieces to envision a different constitutional reality. In the US context, for instance, Robert Tsai, in his 2014 work America’s Forgotten Constitutions, explored alternative constitutions for the fledgling republic, countering the narrative of a single or monolithic US constitutional tradition by examining the texts produced by ‘dissenters’: “squatters, Native Americans, abolitionists, socialists, internationalists, and racial nationalists”. Reclaiming and revisiting these counter-narratives is clearly important, not only to achieve a more plural account of a nation’s constitutional story and history, but also to ground possible alternatives to what may be perceived as an unjust, artificial, or illegitimate order. Like phantom architecture, these phantom constitutions run the gamut from the realisable to the impossible – and along a broad spectrum of normative commitments to democracy.

In this short response to Theunis Roux’s highly important article seeking to prompt a more fruitful debate between adherents to liberal-progressivist and culturalist grand narratives (‘LPN’ and ‘CGN’), I briefly raise three questions that may be useful in furthering current debates on decolonising constitutional thought, practice, and form.

First is a question raised by Arghya Sengupta in his symposium response: how much do we expect decolonial thought to pay attention to detail and the practical operation of an alternative constitutional order? Roux’s most compelling critique of at least some CGN arguments is that, by remaining within the upper reaches of abstraction, its proponents can remain wedded to aspiration unsullied by the challenges of practical implementation. As Roux suggests, any claim for root-and-branch constitutional change must surely be capable of offering a more detailed picture of how a different system would work, at least in its fundamentals. Is it the perception of exogenous ideation or even imposition that matters, or is it specific institutional choices? Is it about replacing perceived elite domination by popular empowerment? Is it about re-naming and re-founding the state, or is it about giving more space to autochthonous modes of governance?

This is certainly not to dismiss CGN perspectives out of hand and raising such questions does not necessarily place one in the LPN camp. It is also vitally important to heed Frantz Fanon’s warnings of the “curious cult of detail” that can starkly limit our political and constitutional imaginations, replacing any possibility of a truly novel vision for governance with a horizon dominated by incrementalism. However, without answers to these kinds of questions, CGN narratives remain rather slippery. Proponents of both narratives clearly bear the burden of justifying in greater detail why they are wedded to their particular narrative.

Here, comparative enquiry has much to offer in exploring what lessons are afforded by attempts to decolonise constitutions in the past. Although experiences from the Global South should rightfully take centre stage, others can also prove illuminating. Take the author’s own home country of Ireland, for instance, as a post-colonial state that is now part of the perceived Western world. Scholars such as David Kenny have analysed how many of the serious and inventive attempts made by the 1922 Constitution to break free from the party-dominated Westminster tradition – including the use of direct democracy, vocational councils, and external ministers – failed, due not only to the stickiness of the political and constitutional culture inherited from the British, but due also to how that culture had shaped pro-independence actors’ understandings of political power. The outcome of that LPN-esque project also raises questions about whether larger unrealised CGN-esque proposals, such as re-founding the entire legal system as a blend of modernised Brehon (pre-colonial) and Roman law, would have run into similar implementation obstacles.

This leads to the second question: what is distinctive about a democratic decolonial critique of existing constitutions? Ireland’s decolonial constitutional innovations a century ago may be characterised as grounded in democratic ideals. This demonstrates, as Mathew John offers in his response in this symposium, that one should not allow the ‘dark side’ of CGN – such as the BJP’s illiberal Hindutva project – to exemplify all decolonial projects and thereby cast them as inevitably authoritarian. Yet, as Dinesha Samararatne and I discuss in recent work, the potential for a decolonial project to provide cover for autocratisation requires close scrutiny.

Perhaps more concerning, as Roux seems to suggest, is that CGN narratives grounded in good-faith commitment to democracy simply appear rather cavalier regarding the potential risks of a constitutional overhaul owing to insufficient attention to the political context. Similarly, outside of the decolonisation paradigm, in debates on addressing the democratic crisis during the recent Bolsonaro presidency, multiple Brazilian scholars strongly criticised Bruce Ackerman’s arguments for a new constitution. They emphasised that, despite serious political crises since the democratic transition of the 1980s, the 1988 Constitution had set the scene for successive peaceful alternations of government, enhanced institutional accountability, and enshrined a suite of defensible political compromises. In a similar vein to Roux, they emphasised that constitution-making is a high-stakes and risky endeavour during febrile political moments, one in which “there are no simple answers”. It is certainly easy to overlook what has been achieved under an existing constitutional text, especially in difficult transitional conditions, if its competition is a dream text that would have inevitably performed so much better.

This leads us to the third, and perhaps most fundamental, question: in seeking to push forward this debate, is the presumed ‘other’ of Western liberal constitutionalism itself a phantom? As Heinz Klug observes in his response in this symposium, in speaking of ‘Southern Democratic Constitutionalism’, we must remain mindful that there are many variants of constitutionalism and democracy across the Global South. In a similar vein, is it truly possible to speak of Western liberal constitutionalism as a monolith? What, for instance, does US or British constitutionalism share with its Belgian, German or Australian counterparts? Is the presentation of a singular tradition a mere rhetorical construct, or is it a stand-in for the specific constitutional tradition of the former coloniser(s) in any given post-colonial state? If the myth of a monolithic US constitutional tradition must be challenged, as Tsai offers, it also seems necessary to problematise and disaggregate Western liberal constitutionalism as a joint point of reference for both narratives. Indeed, as the historian Naoíse Mac Sweeney offers, ‘the West’ as a shared space and tradition is a far less stable notion than is often understood; its operation as an abstract “politico-cultural concept” requires us to continually divide the abstract from the reality, and rhetoric from empirical fact.

This tracks us back to the need for more detail in decolonial projects, in not only articulating what they dislike about the current order but also, in specific terms, how a (more fully) decolonised order would be preferable. It would be all too easy for the current debates to become a rather unproductive re-tread of longstanding debates about whether democracy or human rights are merely Western constructs. A more productive approach might be to ‘go wide’ and ‘go deep’; going wide by gathering more examples worldwide – especially on a South-South basis – of how institutions seek to perform the work of diffusing, constraining, and marshalling public power, protecting individuals and communities from vertical and horizontal domination, and doing so in a way that reflects local needs; and going deep by critically revisiting the development of the ‘standard’ constitutional forms we have all inherited today.

None of these are easy questions, which underscores the value of Roux’s agenda-setting account that prompts much-needed soul-searching about the current debates on decolonising constitutionalism. His paper deserves a very wide readership.

Tom Daly is a Professor at Melbourne Law School, Director of Demoptimism (www.demoptimism.org), Director of the Electoral Regulation Research Network (ERRN), and a co-convenor of the Constitution Transformation Network at Melbourne Law School.

This post is part of a symposium, guest edited by Anmol Jain, responding to Theunis Roux’s article ‘Grand Narratives of Transition and the Quest for Democratic Constitutionalism in India and South Africa’.

Suggested Citation: Tom Daly, ‘Chasing Phantom Constitutions?’ IACL-AIDC Blog (11 March 2025) Chasing Phantom Constitutions? — IACL-IADC Blog