One Word, Several Worlds: Interconstitutionalism

Ece Göztepe

Bilkent University

It is amazing to see how a one-word title, ‘Interconstitutionalism’, can prompt two authors to write an 81-page research article. The brevity of the article’s title certainly arouses interest, and the content does not disappoint the reader. The richness of the investigated terms, the vast number of US court decisions the authors discuss, and the attention given to many state constitutions all testify to extremely strenuous and meticulous academic work. The authors focus primarily on the normative foundations of interconstitutionalism and its judicial implementation in the United States, at both the federal and state levels. The variety of the substantive legal issues from the selected US court decisions that are evaluated is convincing and multifaceted. The comparison between the term interconstitutionalism and six other interpretive practices the authors identify, including cross-, intra-, and multilingual constitutional interpretation, helps to situate the article’s main focus, while allowing the reader to reflect on other interpretive practices that resemble, but are ultimately distinct from, interconstitutionalism. 

The Challenge of Engaging in Comparative Analysis

Comparative examples are used throughout the article to support some of its arguments, including from Germany, France, Turkey, India, South Africa, Kenya, and Ghana. However, these comparisons are mostly brief and remain at a high level of generality, and the few court decisions discussed from these countries do not reach the depth of the cases from the United States. But an in-depth study of all of these comparative contexts cannot be expected of the authors, given the main focus of their article. In addition, legal comparison is always a dangerous terrain, because a functional comparative analysis requires extensive knowledge of the countries being compared on many fronts. This includes not only knowledge of the legal rules and judicial interpretations, but also of the relevant academic literature, legal discussions, and so forth. 

In that sense, for example, the article’s reference to the Weimar Constitution, whose provisions relating to the relationship between church and state (articles 137-141) have been incorporated into article 140 of the current German Constitution (the Basic Law), does not capture the full picture. The Weimar Constitution’s regulation of church and state relations itself was based on a revolutionary idea enshrined in articles 147-151 of the Paulskirche Constitution of 1849, whose provisions were the normative expression of a centuries-long tension between the Church and secular political power(s). As the first German Republican Constitution, the Weimar Constitution adopted this Enlightenment constitutional clause, but in view of its short lifespan and the lack of proper judicial institutions that could engage in the interpretation of its provisions, the principle of separation of state and church enshrined in articles 137-141 of the Weimar Constitution was largely confined to one on paper. The Weimar period thus failed to concretize and place judicial limitations on the principle of separation of church and state. Therefore, it was and still is the Federal Constitutional Court under Germany’s current Basic Law that can and does judicially determine the constitutional rules regarding the separation of church and state. A mere reference in the Basic Law to the Weimar Constitution does not allow the old constitution to live on in the new one, because what is carried into the new constitution are mere words whose meaning is explicated by the Constitutional Court under the new Constitution. As some scholars of German constitutional law have also noted, the so-called “new value system” of the Basic Law shapes the interpretation of these holdover Weimar norms and actually leaves the old constitution no chance of survival in material terms, but only in text.

Interconstitutionalism in Turkey

The example of Turkey is a completely different matter. Asking, “Are the old, repudiated constitutions really dying, or are the old constitutional norms granted eternal life?” is of particular importance. The first republican constitution of 1924 was partially repealed as a result of the military coup on May 27, 1960, until the new constitution entered into force. The new constitution of 1961, which was subsequently adopted by a referendum, was again abolished after the military coup of September 12, 1980. The current constitution, adopted by a referendum on November 7, 1982, is still in force even after extensive revisions (a total of 20 amending laws, and 184 amendments). So, how is it that repealed constitutional texts are still cited in court decisions and used in academic literature as objects of comparison, beyond historical citation?

First of all, it must be emphasized that military coups are not considered the end of existence of the Republic of Turkey as a state, but only an intervention in the political practice of the executive and legislative branches. Consider here the fact that the designation of the leading putschist military general was the “president of the State” (devlet başkanı), not “president of the Republic” (cumhurbaşkanı), a description that has traditionally been used for Turkish presidents who were constitutionally elected. The difference between these two descriptors, beyond a mere stylistic preference, was intended to emphasize the provisional nature and the exceptional character of the military coup’s seizure of power.

If you search in the database of the Turkish Constitutional Court for the keywords “The Constitution of 1924” and “The Constitution of 1961,” you will find 26 decisions referring to the former and 218 to the latter. Relying on these simple numerical facts, one should not jump to the conclusion that the previous constitutions enjoy a continued existence under the current constitution. An in-depth analysis is required to understand the function of these citations in more detail. Looking at some of the decisions, it is immediately clear that citations to previous constitutions serve different functions: some reinforce departures from the old constitution; some serve as proof of the continuity of a constitutional concept or institution; and some are simply the means of providing historical context.

Whether certain uses of old constitutions are more legitimate than other uses cannot be determined in any objective way. It is within the discretion of the Constitutional Court to invoke old constitutions for any purpose in order to inform present-day constitutional decision-making. But no matter the purpose for referring to old constitutions, as Mazzone and Tecimer’s excellent article makes clear, a state entity owes its permanence not only to the very existence of sovereign power but also to the continuity of normative foundations and their historical revival through interconstitutionalist practices.

The authors formulate several theoretical questions of great importance at the close of their article. Is interconstitutionalism a restriction on the sovereign will of the people who have adopted a new constitution? And what does it mean, then, to make a new constitution after a war or revolution? The authors identify and discuss some key issues and raise questions about their theoretical significance. In view of the great abundance of the material the authors sift through, this method is clever and pragmatic. But I think the authors owe their readers a further research article to answer these more theoretical questions. I look forward to reading the next article.

Ece Göztepe is Professor for Turkish and Comparative Constitutional Law and Dean of the Law Faculty at the Bilkent University in Ankara

Suggested Citation: Ece Göztepe, ‘One Word, Several Worlds: Interconstitutionalism’ IACL-AIDC Blog (9 May 2023) https://blog-iacl-aidc.org/wmps-interconstitutionalism/2023/5/9/one-word-several-worlds-interconstitutionalism.