Interconstitutionalism: A Global Investigation - Concluding Thoughts

Jason Mazzone & Cem Tecimer

University of Illinois & Harvard Law School

The symposium contributors have offered a series of extremely helpful reactions, suggestions, and criticisms of Interconstitutionalism, and they have teed up a variety of important questions for future research. We couldn’t have asked for more. In this short conclusion, we focus on three of the many insightful points that emerge from reading the contributions individually and together as a set.    

First, the contributors report striking differences in the frequency with which courts engage in interconstitutionalism. At one extreme, Francesco Biagi reports, the Italian Constitutional Court rarely invokes the Albertine Statute, the predecessor to the Italian Constitution. At the other extreme, as Ana Beatriz Robalinho reports, interconstitutionalism is in regular use at the Brazilian Supreme Court. What accounts for divergence? Biagi and Robalinho both emphasize temporal proximity: a century separates the Albertine Statute from the Italian Constitution; in Brazil, with seven constitutions since independence, the current constitution of 1988 replaced a predecessor just two decades old. It seems plausible to us that interconstitutionalism could be more prevalent when there are shorter periods between constitutions: the more a predecessor constitution recedes into the past, the less relevant it becomes for interpreting the present constitution. On the other hand, we wonder whether more frequent replacement of constitutions might lead some courts to pay less attention to predecessor charters both because the sheer number of predecessors presents problems of management and because any incorrect judicial interpretation of the in-force constitution can soon be corrected when a new constitution is next adopted.    

Our second concluding observation concerns issues of democracy and self-government. In our article, we pointed to challenges that interconstitutionalism might pose for commitments to popular sovereignty (including by undermining constitutional change). Two symposium contributors push the point—and push us on it—by exploring how interconstitutionalism can generate unjust and even autocratic outcomes. Shanil Wijesinha explains that in Sri Lanka, interconstitutionalist readings of the 1978 and 1972 constitutions perpetuated the unequal status of the nation’s Tamil minority. Wijesinha rightly urges close attention to the context of constitutional text when undertaking interconstitutionalism and when assessing its impact. Gábor Mészáros shows that in Hungary, interconstitutionalism has facilitated autocratic rule because, with the commitment in the Fundamental Law to the nation’s “historical constitution,” coupled with external political pressure, courts have been made accomplices to the implementation of illiberal laws and democratic backsliding. Wijesinha and Mészáros offer more than just a cautionary tale. They suggest that at least in some contexts, interconstitutionalism has a very dark side, and that there might not be any easy way to overcome its deleterious effects.

Third, Ece Göztepe and Justin Collings highlight the uncertain, shifting and sometimes conflicting roles that past constitutions can play. In Turkey, as Göztepe reports, although new constitutions (in 1961 and 1982) have been the product of military coups, they are not regarded as having ended the pre-existing state but only as military interventions in legislative and executive practices.  Accordingly, predecessor constitutions are not the products of a bygone past but former constitutions of the same state. Rupture and continuity are balled into one. In Germany, Collings explains that, paradoxically, the Weimar Constitution itself serves as a symbol of both continuity and rupture: a link to the “better Germany” that existed before Nazism and a cautionary tale against which the constitutional order of the Basic Law has consistently sought to define itself. Göztepe and Collings both highlight the blurriness of distinctions between historical past and present, and the varying roles past constitutions play in culture and in law. Their analysis adds an intriguing dimension to efforts to recognize, understand, and evaluate interconstitutionalism. 

We have much work ahead of us if we are to do justice to the range and depth of the contributions to this symposium. We again extend our profound thanks to the contributors and we look forward to future conversations as our work on interconstitutionalism continues.

Jason Mazzone is the Albert E. Jenner, Jr. Professor of Law and Director of the Program in Constitutional Theory, History, and Law at the University of Illinois College of Law

Cem Tecimer is an S.J.D. Candidate at Harvard Law School

Suggested citation: Jason Mazzone and Cem Tecimer, ‘Interconstitutionalism: Concluding Thoughts’ IACL-AIDC Blog (25 May 2023) https://blog-iacl-aidc.org/wmps-interconstitutionalism/2023/5/25/interconstitutionalism-a-global-investigation-concluding-thoughts.