Redeeming ‘the National’ in Constitutional Argument

William Partlett & Dinesha Samararatne

Melbourne Law School & University of Colombo

In early 2020, Russian leaders introduced a number of changes to the Russian Constitution that undermined existing constitutional commitments to the separation of power, the rule of law, and individual rights. Russian constitutional advocates mobilized to block the reforms by appealing to the Council of Europe and the Venice Commission. 

Sri Lankan leaders also introduced a key amendment in 2020 that centralised power in the office of the president and undermined its constitutional commitment to the separation of powers. Several UN Rapporteurs expressed their concern about the amendment in the public debate that followed. 

These are just two examples of a trend that is playing out across the world: Constitutional discourse is increasingly becoming a supra-national phenomenon. This supra-national argumentative strategy has some advantages. But it also has spawned a nationalist backlash, allowing self-interested politicians interested in dismantling or avoiding constitutional governance to argue that constitutionalism is a western project that ignores national context.  

In our article, we argue that advocates of constitutionalism must seek to link the principles of constitutionalism to national history and the text of the national constitution. This attempt to “redeem” national context by linking it to constitutionalism is critical in helping to counter the nationalist backlash and building more resilient constitutional systems. 

We discuss two modalities of constitutional argument in redeeming the national. First is for constitutional advocates to ground—where possible—arguments that engage with the principles of constitutionalism in the text of the national constitution. Constitutions are frequently disharmonious legal texts. Thus, even in many countries that fail to honour their constitutional commitments, national constitutions still contain textual support for the principles of constitutionalism. 

Constitutional advocates should, therefore, use their legal training to determine the extent to which aspects of the text, structure, and values of the national constitution provide resources for critiquing abusive constitutional amendments and arguments. This form of textual argument demonstrates how the nationalist backlash is problematic because it itself strays from the text, structure, or values of the constitution. We suggest that this kind of argument is particularly well-suited to arguments in court.

A second approach is to interpret history in ways that advance constitutionalism. History is not a numerical factor that determines the present.  History is also disharmonious, containing competing ideas and approaches (as William Partlett argues). Redeeming the national requires de-essentializing abusive arguments about national identity or tradition by exposing them as selective and politically-motivated versions of history. It also requires finding versions of history that can support the project of constitutionalism by demonstrating how the principles of constitutionalism respond to particular historical needs. This shows that, for instance, even in countries with traditions of valuing the strong state or of authoritarianism, national history need not undermine the project of constitutionalism. This argument can work both inside and outside of court and would be underpinned by an ethical and political commitment to advancing, where possible, an interpretation of history that advances principles of constitutionalism. 

We do not argue that this argumentative technique—what some have called “constitutional nationalism”— should completely displace transnational constitutional discourse. But it is important because it facilitates the process of adapting the principles of constitutionalism to national context: It helps to uncover particular issues or questions that are in fact central to the project of implementing the principles of constitutionalism in that context. For instance, constitutionalism can express itself in different forms of state-building. In some national contexts, it may be viewed as limiting the state; in others, it may be seen as placing obligations on the state and enabling the state. 

Redeeming the national therefore encourages pluralism but within the framework of the broader (but partial) principles of constitutionalism. This pluralism means that there will be different ways of ensuring key principles of constitutionalism. For instance, in some national contexts, an elected president alongside an elected parliament is best at achieving checks and balances; in others, it will not be. This recognition of pluralism therefore seeks to ensure that constitutionalism is not a project of supra-national convergence. We propose that key sources of constitutionalist discourse—particularly knowledge institutions such as law schools—should seek to develop a national idea of constitutionalism in the realm of learning as well as in litigation and in the implementation of the constitution. 

In Russia and in Sri Lanka, ‘nationalism’ has negative political connotations for some. We seek to redeem this concept by arguing that advocates of constitutionalism engage with a constitutional form of nationalism. We are not, therefore, advocating nativism. Rather, we propose that advocates of constitutionalism develop arguments and interpretations that are grounded in national text and history but also seriously engage with the key principles of constitutionalism. 

This paper is just the beginning of a larger project. In particular, work remains to be done in adapting the universal (and partial) principles of constitutionalism to national context. We hope our paper will inspire more work along these lines to come. 

William Partlett is an Associate Professor at the Melbourne Law School, University of Melbourne, Australia

Dinesha Samararatne is a Senior Lecturer, Dept of Public & International Law, University of Colombo, Sri Lanka

Suggested Citation: William Partlett & Dinesha Samararatne, ‘Redeeming ‘the National’ in Constitutional Argument’, IACL-AIDC Blog (1 February 2022) https://blog-iacl-aidc.org/new-blog-3/2022/2/1/redeeming-the-national-in-constitutional-argument.