openDemocracyUK: Opinion

Constitutions that build citizen power and joy

As we rebuild from the wreckage, let's consider how the structures of the state have fatally limited what feels possible. Constitutional experiments in Latin America suggest a way to organise the state which can liberate society’s potential.  

Carys Hughes
20 May 2020
"Peoples World Conference on Climate Change and Defence of Life" in Cochabamba, Bolivia.
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UN

Glazed eyes are probably the most frequent response if you mention the need for ‘constitutional reform’ in the UK. For others, this is about important but specific, standalone issues, such as Scotland, PR or the House of Lords. 

In fact, our constitutional order is fundamental to who we are, how we think and feel, and what we feel able to do. 

As the articles in this series have explored from diverse perspectives, if we want to move beyond neoliberalism, we must ask how public policies and governance could produce the kind of consciousness that such a shift would require. Here, I consider this question from a constitutional perspective. 

For forty years, neoliberal institutions and governance have worked to inhibit citizen power and creativity, through limiting the forms of interaction which are possible within society and undermining all but highly individualised modes of thinking and acting. This ‘consciousness deflation’, as Mark Fisher called it, has profoundly weakened our ability to overcome the existential challenges we face. (Indeed, it is only because states themselves have retained the memory that they can undertake vast, decisive collective action that we are able to come out of the coronavirus crisis at all.)

Emerging from the current crisis, what kind of state can be envisaged that could do the opposite of this consciousness deflation, by enabling and encouraging an empowered citizenry, and harnessing public intelligence, creativity and ingenuity for the common good?

I suggest we turn to the philosophical tradition which stems from Baruch Spinoza to answer this question. Where neoliberal governance is based on a picture of people at their best when forced to compete, Spinoza recognised the inherently interconnected nature of people and their ability to act and effect change in the world. 

For Spinoza, our capacities – what he called our ‘potentia’ – are a product of our past experiences of productive collaboration with other people and other things, and our ongoing material conditions which make such positive collaborations more or less difficult. Through positive encounters with others we increase our capacities to act – our agency – and it is this kind of empowerment which is behind all feelings of pleasure or joy

A Spinozan state would be designed to facilitate and encourage such productive encounters between people and people and things; state institutions and processes would be structured to encourage citizens to freely collaborate and take control, thereby building their capacities, agency and society’s potentia

What might this look like in practice? 

Well, actually, in parts of Latin America, this is quite a lot like what governments have tried to do. 

A new constitutional model 

Between the late 1990s and mid-2000s, new governments in Bolivia, Ecuador and Venezuela, embarked upon three uniquely participatory, collaborative and inclusive processes of constitutional transformation. These processes and the constitutions they produced have been hailed as amounting to a new constitutional mode – ‘the new Latin American constitutionalism’ – that is based on a fundamentally different understanding of the relationship between ordinary people and the state

The Morales, Correa, and Chávez governments came to power by surfing a wave of movements for constitutional change. Election campaigns promising to ‘Re-found the state’ captured the popular sense that state institutions and structures were outdated, undemocratic and responsible for many of society’s ills. 

Upon taking power, referenda were held on the creation of ‘national constituent assemblies’: extraordinary bodies that would have the power to completely restructure the state, creating and dissolving state institutions and foundational laws. The electorates of each country in turn voted in favour of this dramatic proposal, and lengthy participatory democratic processes followed. Elected delegates (drawn from civil society and social movements, as well as from political parties) solicited proposals for the new constitutions from the public, and parallel meetings and negotiations took place across civil society, where indigenous social movements, neighbourhood groups and other actors met to deliberate and develop proposals. The final constitutional texts were presented to the public for ratification via national referenda and were approved by substantial majorities (64% in Bolivia, 69% in Ecuador, and 72% in Venezuela).

Common features of the three constitutions include a commitment to transform the material conditions of society, increased state intervention in the economy, increased emphasis on social, economic, and cultural rights, and an arguably unprecedented vindication of indigenous rights and philosophies. Both Bolivia and Ecuador declared themselves ‘plurinational states’, recognising the indigenous nations which predate colonialism. Describing the inauguration of Bolivia’s constituent assembly in 2006, Nancy Postero captures something of the social and political significance of these changes: “[It was] attended by delegations from all the country’s indigenous groups and social movements. Many carried signs reading ‘¡Nunca Más Sin Nosotros!’ (Never Again Without Us!). . . . I was there and can attest to the incredible feeling of social revolution in the air.”

Constitutions which recognise and build ‘constituent power’ 

Most significant, however, from a constitutional perspective, is their emphasis on ‘constituent power’. The notion of ‘constituent power’ was made famous during the French Revolution by Emmanuel Sieyes, who distinguished between the constituted power (the state; its offices, institutions and procedures) and the constituent power (‘the people’; the force which originally created the state). Sieyes argued that it is ‘the people’ who have authority over the state; and the right to change it. The theory became the defining myth of the revolution and provided the theoretical basis for the 1789 national constituent assembly and the first written French constitution. 

Constituent power remains an important concept within traditional (liberal) constitutional theory. The notion of an original ‘founding moment’ when ‘the people’ created the state serves as the ongoing source of legitimacy for the modern-day state. But practically speaking, the concept is without teeth. There are no instances in which a new constituent power might be recognised as a legitimate authority over the existing constitutional regime. 

In fact, the main purpose of traditional constitutions is to limit opportunities in which the collective citizenry might take control.

New Latin American constitutionalism takes a completely different approach. Here, the aim is to deliberately support the emergence and expression of ‘constituent power’ within the structures of the state. A somewhat paradoxical arrangement, these constitutions deliberately create spaces in which the seeds of their own destruction might grow. Popular mobilisation is seen as a vital part of the constitutional order, hence Illan rua Wall’s evocative description of this as “the constitution of turbulence”. 

In practice, this is done, firstly, through constitutional provisions for triggering a new constituent assembly process (via petitions and referenda) should a future citizenry deem this necessary. And secondly, through institutionalising a diverse range of participatory and direct democratic mechanisms and initiatives. Examples have ranged from municipal level constituent assemblies, to participatory budgeting, to the Communal Councils and Urban Land Committees, which supported local residents to resolve community problems. These diverse forms – trialled at different places and times – have experimented with how to facilitate collective, participatory self-governance and have opened up diverse and sometimes transformative experiences of collective agency for the people involved. 

Fundamentally, this is about whether we believe ordinary people should take charge of the constitutional order and governance systems within which they live: and whether they are capable of doing so. The UK’s current (unwritten) constitution limits opportunities for citizen power, in order that the existing order be preserved against the passions and whims of the unruly, irrational masses. New Latin American constitutionalism is based on an altogether more positive and optimistic picture of peoples’ ability to collaborate effectively to manage the state and govern themselves. 

Does this kind of constitution change how people think, feel and act? 

Researchers interested in how state structures and processes shape public consciousness have tended to focus on neoliberal states. What we understand far less is how the state might be experienced as liberatory, transformative and empowering. Of course, there is much less material to draw on. However, stories and anecdotes from those who have participated in these recent constitutional experiments in Latin America suggest that the state can sometimes be experienced in this way. In other words, that a positive form of governmentality with which to replace neoliberalism might at least be possible

As a foreigner living in Bolivia in 2010/11, (several years after Morales came to power and the Plurinational state was founded) I remember being struck by a disorientating, unfamiliar atmosphere within civil society spaces. From a dusty public hall or old classroom, movement leaders and other civil society actors would deliberate the details of the major global transformations required to tackle the climate crisis and how these would be achieved. Discussed in earnest were ideas and questions unsayable in a UK context, at the time, (unless wrapped in reassuring irony to clarify: ‘Of course I’m not suggesting this could actually happen!’) In Bolivia, there was a visceral sense of agency and possibility I was entirely unused to. People took themselves seriously, as agents within wider national and even global struggles. 

Describing the Ecuadorian constituent assembly, Catherine Walsh highlights how these kinds of ‘bottom up’ constitution writing processes can – when done right – be vehicles to raise and transform public consciousness: 

“In its organization and practice, the Ecuadorian Constitutional Assembly worked pedagogically to engender, enable, and push this ‘thinking with’ [the ‘historically subjugated, denied and negated’]. The popularly elected Assembly women and men did not represent political parties but social and political movements and varied social sectors and regions of the country. Most were new to the political arena, were of a younger generation, and were there to contribute to the learning, thinking, and debate entailed in the shaping and making of the Constitution. Organization was through thematic mesas that endeavored to study the issues of concern with readings, discussions and debates, and invited presentations. Only with consensus and profound understanding did these mesas then propose to the plenary the articles for consideration. As one of the invitees and as an ongoing unofficial advisor to an Afro-Ecuadorian Women’s Assembly, I can attest to the sociopolitical, epistemic, and pedagogical significance of this practice and process.”

The ‘processual state’: a ‘potentially liberatory process of collective engagement’

But this is not just about the process by which these constitutions were developed, but the new constitutional orders that were produced. Naomi Schiller employs the notion of the ‘processual state’ to characterise Venezuelan community groups’ approach to the state as a “potentially liberatory process of collective engagement”. Drawing on ethnographic research with community media producers in Caracas she describes how they “experienced, created and depicted the state first and foremost as a work in progress, a collection of institutions in which they participate and a liberatory endeavour”. To be sure, this did not undo past experiences of the state as an apparatus of violent coercion, and at times it is still experienced as “an adversarial coherent force”. However, what is new is an explicit and self-conscious approach to the state as an “unfolding project”, an “ongoing and uneven process of deliberation”, and “something that can be used by ordinary citizens, to challenge inequalities”. 

The achievements of these governments should not be romanticised. Linda Farthing describes the Morales government as presiding over an ‘opportunity squandered’. Incredible social gains notwithstanding, the government ultimately failed to move away from an extractivist development model, heavily dependent on multinational corporations. This led to the government’s violation of many of the new constitutional rights and the progressive alienation of sections of the indigenous and campesino movements which brought them to power in the first place. Correa’s government followed an even more disappointing course (after similarly impressive social gains). And following the collapse in global oil prices, Venezuela’s desperate economic situation is threatening the future existence of the Bolivarian project.  

However, none of the eventual declines of these governments were related to their experiments in being open, porous, participatory states. If we are interested in real world attempts to restructure the relationship between the state and ordinary people, creating a fundamentally different kind of state, explicitly intended to build the power and capacities of ordinary people and foster self-governance: then this is where we should start by looking.

Building ‘potential’ through local, municipal, and civil society spaces

Appreciating how the form and orientation of the state is relevant to the fabric of our daily lives, delimiting our thoughts, desires, and behaviours, adds to the case made by Anthony Barnett, Dan Hind, Adam Ramsay and Stuart White, amongst others, for re-thinking the structures of the British state. 

In this moment of rupture, with normal life on hold and questions about what sort of system we want to rebuild on the table, we should think about how the underlying constitutional form of our institutions shapes what feels possible.

However, we need not – and nor do we have the time to – wait for wholesale constitutional transformation, by way of a constituent assembly or constitutional convention. 

The state is not a single coherent thing, but a collection of many different, sometimes contradictory institutions, processes, officials, and representations, operating at national, municipal and local levels. As many have argued recently, the most important national policies and initiatives in the UK have often started at the local level. (The NHS, as the best example, was based on a Welsh village’s collective insurance programme). 

Neoliberal governance practices could spread so quickly across the world because they shared a common DNA; an aim and orientation, based on a story of what it looks like to flourish. Now progressives must do the same. But instead of contriving the conditions for competition between individuals at every turn, the aim must be to foster positive potentia within the citizenry. Policies, processes, and institutions within local and municipal spaces, and across civil society, should be developed or transformed with this common orientation; creating spaces which enable and encourage diverse groups of citizens in diverse contexts to collaborate to take control, pooling their unique insights and creative potential to solve common problems. Innovative new institutional forms like the recently developed model for Public-Common Partnerships, and community initiatives like Margate’s Millions’ experiments in local deliberative democracy, show the beginnings of what this might look in practice. 

Forty years of neoliberalism has created societies of tired people with limited emotional and psychological resources to solve the complex crises we are facing – or to resist the rise of the far right. Rational arguments and statistics – about the need to reduce emissions, the effects of Brexit on the economy, and so on – do not address this problem. Institutional structures which shift the affective dynamics within society, building citizens’ individual and collective psychic resources through different experiences of collective agency, can begin to do so.

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