Deconstructing the constitutional fetish: a step towards communalist emancipation?
In The Constitution in the 21st Century: History of a Social Fetish, Lauréline Fontaine continues the sharp critical work she began several years ago on the mystifying role of the Constitution in contemporary political regimes. Contrary to the almost religious reverence that this text inspires in liberal democracies, she shows its ideological, constraining, and deeply conservative nature, particularly when it is erected as a totem above social struggles, popular needs, and aspirations for radical social transformation.
How, then, can we believe that the mere existence of a constitution enables it to effectively fulfill the functions it claims to fulfill? That we can even consider this is undoubtedly the result of a constitutional imaginary, which has been largely fueled by literature on constitutions, a literature that belongs to an elite, or at least to a group separate from the population. One could even speak of a veritable promotional campaign for the idea of the constitution, in which, since the 18th century, the role of intellectual and political thought should not be overlooked, nor should that of legal thought, particularly since the end of the 19th century. (p21)
A valuable diagnosis for social ecology
For us, this rigorous critique usefully informs our questioning of state institutions. Fontaine deconstructs the supposed “neutrality” of the Constitution to reveal its main function: to naturalize a social order based on the state, capitalism, and the dispossession of the people of any real sovereignty.
When the first constitutions were written, however, talking about politics in order to change it was not entirely new in the public sphere. Constitutional narratives thus drew on a critical intellectual heritage with regard to power. In this heritage, literature, political philosophy, law, and written culture played a decisive role. But in the end, despite the popular and humanist overtones of the constitutional narrative, only a few, namely the established powers and those who established them, actually benefited from the writing of the constitutional texts, with a bonus for the “winners,” those who, by virtue of the text, managed to mobilize it in their favor. This conclusion, though banal, is less so when one considers that it is the very effect of a constitution to establish and legitimize a power that is not that of the people, so that it can be exercised outside of the people, but with their apparent support. (p28)
It reminds us that the Constitution, far from being a freely consented social contract, is the expression of a locked constituent power, which has always served to consolidate the authority of the nation-state and perpetuate the domination of a political and economic class over society.
A text that supports our break with the State and political economy
This book therefore contributes to undermining the symbolic and legal foundations of the state and to desacralizing the mechanisms by which it legitimizes itself, in particular the idea of “constitutional representative democracy.” But Lauréline Fontaine goes further: in chapter 2, “The economic spirit of constitutionalism,” she shows that constitutionalism acts as a front for dominant economic interests, to the point that social rights—despite being supposedly guaranteed—are permanently subordinated to market laws, private property, budgetary balance, and capitalist competition.
Constitutionalism thus appears, in her words, to be caught between “venality and social infirmity”: it is both an instrument of oligarchic capture of institutions by economic forces and a legal mask for the inability to meet the basic needs of the population. Fontaine highlights what she calls a “constitutionalism without a Constitution”, a legal logic detached from any effective commitment to the principles proclaimed – in particular those relating to social and environmental rights or economic justice.
Constitutionalism, however, was the front for the economic interests that drove the first constituent assemblies, and its spread throughout the world has made it a principle that is infinitely more venal than social. Driven by their ambitions, the main economic actors of the contemporary world have achieved the feat of spreading constitutionalist philosophy while bypassing constitutions, i.e., provisions that could thwart their interests. (p76)
Political economy, i.e., the study of the relationship between the conditions of economic production, institutions, and law, is the new framework of reflection from which constitutionalism emerges, and the one in which it is and must be thought. (p77)
The writing of power, both an act of institution and of anticipation of the latter, is the mark of a conception of social organization by virtue of which the state, as a political force, owes its existence solely to the ambition to guarantee rights, and first and foremost property, that is to say, an ambition that concerns only a small group of men, but whose effects are considered to be the greatest for the organization of a state. The state therefore guarantees property by preventing other men from infringing upon it and by remaining, when necessary, aloof from the freedom of men to engage in commerce. It follows that reflection on constitutional mechanisms is specifically aimed at making the state a political force that is harmless to the economic interests that its constituents—generally the same people—believe must be protected. The content of constitutions is thus the result of what their authors, imbued with an economic vision of the political sphere, considered to be or to be most conducive to commercial activities: the protection and organization of property. (p84-85)
The evolution of the constitutional “framework” of states must therefore be seen as the implementation of a framework with an economic and managerial purpose. (p96)
This observation echoes our communalist critique: there can be no emancipation within a legal order designed to serve property, competition, and economic growth. It strengthens our determination to rebuild politics from the ground up, through communal self-government, breaking with the state and the capitalist political economy it protects.
Fontaine also emphasizes the fixed, supposedly “timeless” nature of constitutions, which prevents any living, collective, and contextual adaptation of political forms to the needs of the people.
Until now, we have failed to write a universal history of the use of constitutions that is not marred by the idea that the constitutional act is an enviable, democratic, and humanist political model. The historical and global expansion of constitutionalism since the 18th century, taken as the progress of humanity, has not been the subject of any real critical examination. (p167)
This diagnosis confirms the need for our critical reflections and the local institutional actions that we call for, through the creation of an emancipatory and institutional movement: popular assemblies, cooperative experiments, the creation of communal charters, federations and confederations of free communes—all forms of living, concrete politics, rooted in local territories and capable of circumventing the authoritarian and economistic legitimacy of the constitutional order.
An (in)human history of constitutions
Beyond institutional and economic criticism of constitutionalism, Fontaine invites us to question its material and human history, often obscured behind the progressive veneer of the Western constitutional “model.” In a fundamental passage of the book (p. 169), she reveals the dark side of constitutionalism:
“However, several facts and circumstances point to a certain negligence in the use of the ‘model’, which pushes into the background or overlooks a less cheerful human reality. […] Constitutionalism undoubtedly has its origins in one of the faces of inhumanity: while it sometimes appears to take the form of revolt against tyrannical or arbitrary power, it is in reality the expression of one human group’s deliberate denial of the humanity of another.” (pp. 168-169)
Behind the façade of rights and charters, the first constitutional experiments were historically linked to slavery, colonialism, racial segregation, and the genocide of indigenous peoples. Fontaine shows that the great states that promoted “constitutionalist philosophy”—England, France, and the United States—are also those that, at the same time, legally and economically organized extreme forms of dehumanization. In other words, constitutionalism was born not despite, but in and through inhumanity.
This highlighting of a colonial and racist genealogy of constitutional law opens up a radical horizon of reflection for any emancipatory movement: it invites us to no longer consider the Constitution as a neutral or universal tool, but rather as an instrument historically situated in relations of imperial, racial, and capitalist domination.
For us communalists, this reinforces the idea that legitimate institutions can only arise from a process of popular and situated politicization, rooted in the struggles of peoples and communities for their autonomy and dignity. The history of constitutions teaches us not the wisdom of the founding fathers, but the need to turn the page on a legal model built on exclusion and violence, and to establish, here and now, other forms of popular, confederal, and solidarity-based legitimacy.
Limitations in terms of proposals?
However, while the book provides a powerful structural critique of constitutionalism, it remains more discreet on concrete institutional alternatives (perhaps the subject of a future work, we hope). Fontaine evokes the possibility of moving beyond the Constitution as the dominant legal form, but without elaborating on specific alternative models.
This is undoubtedly the main limitation of the text from our point of view: it brilliantly equips us for deconstruction, but does not go so far as to formulate a constructive policy, even if it does suggest many possible pathways by brilliantly illuminating false leads and other historical and contemporary dead ends.
Constitutions have merely been an essential support for the claim of the great powers to have achieved democracy: they have thus given the name “democracy” to institutions that have remained unchanged and which originally excluded the very principle of democracy. (p. 260)
Is there a possible compatibility with the communalist project?
In conclusion, The Constitution in the 21st Century is a work of great critical value for our movement. It confirms the need for a break with the centralized nation-state and highlights the extent to which constitutional law is at the service of the established order.
Constitutional texts, i.e., writings that limit power, were intended to protect interests that only a few members of the community could then enjoy. The generality of the fiction of the state was joined by that of the people and the nation, the effect of which was to exclude from the intuitive understanding generated by these words (“people,” “nation,” “freedom,” “sovereignty”) the reality of power dedicated to a few. The articulation of the written constitution around these fictional words is the mechanism that makes it effective. The gap between this and the realities of power is immense. Constitutions are not the expression of a people regaining lost power, but of a regulated distancing of the people from power and its exercise. (p. 45)
We have never seen a constitution, by its mere existence, bring about a genuine social or political revolution. (p18)
While it does not share all the constructive dimensions of social ecology, which was not the purpose of this excellent book, it is nonetheless deeply compatible with our emancipatory goal: to break with the fetish of the state and open up pathways for a political project of radical change in society, instituted from below.
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