Prefigurative Palimpsests

Professor Amy J. Cohen

the Robert J. Reinstein Chair in Law at Beasley School of Law, Temple University, USA.

An emerging literature under the sign of “prefigurative legality” asks about people who are trying to reimagine their societies by turning to legal and constitutional tools despite their location outside of the state. Some of this work describes already ongoing projects. For example, anthropologist Randi Irwin analyzes how Sahrawi refugees are crafting a “state-in-waiting” with its own constitution, producing what she calls a form of “prefigurative citizenship.”  Indeed, Irwin describes how despite their yet unrealized claims to territory and self-determination, the Saharawi have amended their constitution in response to changing economic conditions and opportunities. Some of this work takes the form of calls to action. For example, legal scholars Máiréad Enright, Aoife O’Donoghue and Catherine O’Rourke recently urged other scholars and activists in Ireland and Northern Ireland to engage in what they call “prefigurative feminist constitution writing.”  Similarly, Martijn Hesselink has called upon a diverse community of nonstate actors to gather in order draft a radically different set of constitutive rules for the European Union, what he calls “prefigurative EU law.”

People engaged in such popular and speculative legal projects are commonly confronted with the following question: what can this sort of legal production by people with no access to formal state power actually do? In a world where constitutions are both conceptually and practically dominated by states, what can writing one’s own counter-document with one’s compatriots actually achieve? I would like to suggest that Professor Melissa Crouch’s beautiful new book, The Palimpsest Constitution, answers precisely this question. It answers it through a sustained analysis of what alternative constitution drafting has already done.

To develop this point, I first need to stress what makes this book so radical – a point that easily could get lost in the book’s painstakingly careful historical and doctrinal analysis. In her analysis of the legal, political, and social life of constitutions, Crouch simply refuses to prioritize the official over the unofficial. That is, she refuses to privilege the state-led and enacted over the “alternative, non-state, counter-constitutions” (p. 13). Her overarching claim is that constitutions are both proleptic and simultaneously grounded in the past; they “endure in collective memory like the layers of a palimpsest” (p. 226). That is, constitutions create their own textual and social legacies which lawmakers and interpreters pick up, contest, expand, partially erase, and reuse in later debates and texts. But, as Crouch simultaneously documents over time, the same is true of alternative constitutions. For me, this argument is what makes the book so broad-ranging and luminous.

Indeed, it is precisely because Crouch’s approach to studying constitution-making is both ethnographic and historical, that she can show how alternative constitution-making, just like official constitution-making, is a layered, referential, and intertextual processes. Pro-democracy activists in Myanmar without access to state power build on past counter-constitutions using legal techniques of intertextuality to write counter-constitutions in the present. Through this process, they bring a form of authority and legitimacy to what Crouch shows is, in fact, a rather stable and enduring counter-constitutional vision for democratic and civilian rule.   

To summarize just a bit of the story she weaves, counter-constitution writing begins as a project of colonial resistance.  In the 1930s, the Anti-Fascist People’s Freedom League’s (AFPFL) wrote a Manifesto that included a constitutive vision launched against the British-imposed constitution (Burma Act). Crouch explains that “The AFPFL’s catalogue of constitutional rights was attentive to local people’s everyday concerns and reflected some of the socio-economic rights emerging in constitutions in other parts of the world” (p. 65). The Manifesto then shaped the AFPFL Draft Constitution of 1947 as well as the official 1947 Constitution, albeit of course not in an exact one-to-one way.

From 1947 onwards, the book traces how military actors battled over constitutional meaning, which is its own fascinating contribution that will surely be of interest to readers analyzing the militarization of liberal states today. Indeed, I anticipate that the book will circulate widely for that strand of its analysis. But at every turn Crouch also shows her reader something else, namely that “[a]lternative constitution-making was part of the language of resistance to military rule and a form of advocacy for a civilian state.” (p. 145). Crouch continues: “Alternative constitution-making did not need to succeed in creating an official constitution. It was enough that alternative constitutions existed to disrupt the status quo and, in this way, rewrite the palimpsest constitution.”  And it was enough because alternative constitution-makers created their own durable form of counter-visioning and counter-drafting over time.

One telling measure of just how much alternative constitution-making appears to have mattered came about in 1996 when the military outlawed people coming together to write their own constitutions. That is, in 1996 (as well as in prior decades) the military criminalized people’s collective articulations of an otherwise social and political vision using legal form.  This was the military’s response to activism from the early 1990s when several groups had collaborated to draft and adopt a counter-constitution committed to social democratic and civilian rule and federal power-sharing. But they did not do so out of whole cloth. As Crouch elaborates, “several striking aspects of the text reveal how these groups both affirmed and drew upon past alternative constitutions to draft a constitution in opposition to the military” (p. 147).  Previous alternative constitutional visions provided the grounding text for people’s referential and authorizing alternative constitution drafting strategies.  Indeed, to this day, alternative constitution drafters turn to past alternative documents as resources for authority and vision. The illicit 1996 document would come to inform an alternative federal constitution in 2008 and most recently the 2021 Federal Democracy Charter, bravely written in the wake of the military coup.

Crouch opens the book by explaining that she wrote it “to find meaning in the suffering and tragedy in Myanmar. This book is a form of lament” (p. vii). She dedicates the book to Ko Ni, a lawyer assassinated for his advocacy for democratic constitutional change, who did not live to read it. As she reaches the conclusion, she reveals a persistent worry: perhaps tracing the palimpsest constitution is not an adequate intervention in the face of so much human suffering. And yet, she observes, “again and again, people opposing military rule insist on expressing their resistance in the language of constitutional rule” (p. 235).  Precisely in the face of so much tragedy and suffering, the 2021 Federal Charter emerged as “a form of agency and an expression of hope that a constitution can recast the future” (p. 224). The Charter shows us, to again quote Crouch, “that alternative constitutions are an exercise in imagination” (p. 224).  But her book shows us something deeper: that our collective exercises in coming together to use law to imagine a desired future can turn out to have concatenated effects. That is, they can ground, produce, and link together a chain of events so that people’s imaginations for new futures can become the past, now anchoring new imaginative writings for their successors in the present. This is Crouch’s message to people who are trying, seemingly against all odds, to use law to bring otherwise worlds into being: that their proleptic prefigurative experiments may one day too become palimpsests.

Professor Amy J. Cohen is the Robert J. Reinstein Chair in Law at Beasley School of Law, Temple University, USA.

Suggested Citation: Amy J Cohen, ‘Prefigurative Palimpsests’ IACL-AIDC Blog (22 October 2026) https://blog-iacl-aidc.org/2026-posts/2026/10/22/prefigurative-palimpsests