January 25, 2012constitutionalismPublic Policy

On Constitutional Morality - 2

Freedom, self-restraint, recognition of plurality and the scepticism to claims of representation

This is an archived blog post from The Acorn.

Here are some excerpts from Pratap Bhanu Mehta’s essay on on constitutional morality from the November 2010 issue of Seminar.

What are the elements of constitutional morality that Ambedkar is so concerned about? His invocation of Grote is meant not as a reference merely to historical rarity, but also as a pointer to the distinctiveness of constitutionalism as a mode of association…For him, the real anxiety was not Constitution’ the noun, as much as the adverbial practice it entailed.

For Grote, the central elements of constitutional morality were freedom and self-restraint. Self-restraint was a precondition for maintaining freedom under properly constitutional government. The most political expression of a lack of self-restraint was revolution. Indeed constitutional morality was successful only in so far as it warded off revolution. Ambedkar also takes on the explicitly anti-revolutionary tones of constitutionalism. In a strikingly odd passage, he says that the maintenance of democracy requires that we must hold fast to constitutional methods of achieving our social and economic objectives. It must mean that we abandon the bloody methods of revolution. It means we must abandon the method of civil disobedience, non-cooperation and satyagraha.’

For the second element of constitutional morality is the recognition of plurality in its deepest form. What is surprising is that Ambedkar turns out to be as, if not more, committed to a form of non-violence as Gandhi…The only way of non-violent resolution amidst this fact of difference is securing some degree of unanimity on a constitutional process, a form of adjudication that can mediate difference. Unilaterally declaring oneself to be in possession of the truth, setting oneself up as a judge in one’s own cause, or acting on the dictates of one’s conscience might be heroic acts of personal integrity. But they do not address the central problem that a constitutional form is trying to address, namely the existence of a plurality of agents, each with his/her own convictions, opinions and claims.

Constitutional morality requires submitting these to the adjudicative contrivances that are central to any constitution — parliament, courts and so on. In the face of difference, the only point of unanimity that one can seek is over an appropriately designed adjudicative process. This is one reason, for example, why Ambedkar does not think socialism should be part of the constitution, even though equality is of paramount concern to him. What the parties have to agree to, as Ambedkar recognizes over and over, is an allegiance to a constitutional form, not an allegiance to a particular substance.

Therefore, constitutional morality requires that allegiance to the constitution is non-transactional. The essence of constitutional morality is that allegiance to the constitution cannot be premised upon it leading to outcomes that are a mirror image of any agent’s beliefs. A constitutional morality requires putting up with the possibility that what eventually emerges from a process is very different from what citizens had envisaged.

The third element of constitutional morality is its suspicion of any claims to singularly and uniquely represent the will of the people…In part what rendered satyagraha ominous, from a constitutional point of view, was not just its uncompromising character; it was also the fact that its agents saw themselves as personifying the good of the whole. Ambedkar is hugely suspicious of any form of hero worship. (This) suspicion of personification was part of a larger sensibility that formed a crucial element of his constitutional morality: he was suspicious of any claims to embody popular sovereignty.

In short, any appeal to popular sovereignty has to be tempered by a sense that the future may have at least as valid claims as the present. [Seminar]

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On Constitutional Morality - 1
Three thoughts for the Republic

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