Constitutionalism has come to be understood as a complex systemic ideology of the construction of governance. In its simplest reduction, it can be understood as consisting of five elements: (1) a system of classification, (2) the object of which is to define the key characteristics of constitutions, (3) for the purpose of determining the legitimacy of a constitutional system as conceived or as implemented to provide a principled basis for outsiders (foreign states, entities, individuals) to judge the lawfulness of the constitutional order created and for insiders (citizens) to judge the distance between the ideals of their constitutional system and its reality (and to act thereon), (4) based on the fundamental postulate that the use of governmental power is subject to rule of law limits that are in turn (5) grounded on values derived from a source beyond the control of any individual. (Id.). Constitutionalism rejects the idea that any systematization of governance through a written document styled a “constitution” can legitimate the state apparatus created thereby. At its most basic form, constitutionalism provides a means for erect a high wall between, on the one hand, governance grounded in institutional values and actions centered on the common good, and on the other hand, governance grounded in personal power of individual or ruling cliques centered on the perpetuation of personal or group power. Larry Catá Backer, The Party as Polity, The Communist Party and the Chinese Constitutional State: A Theory of Party-State Constitutionalism 16 Journal of Chinese and Comparative Law -- (forthcoming 2009), at Part II.
The value of constitutionalism as a legitimating device, and therefore, as a lens through which the actions of others against a state may be evaluated, is at the heart of constitutionalist ideology. “This is a crucial evaluation. As Robert Nozick noted, “those legitimately wielding power are entitled, are specially entitled, to wield it.” It follows that the evaluation implicit in constitutionalism has legal and political consequences for the obligations of individuals to conform and other states to respect the organization and actions of a particular entity.” Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113(3) Penn State Law Review 671 (2009) (citing in part Robert Nozick, Anarchy, State and Utopia 134(1974)).
The source of constitutionalist valies has been changing in the last century. “Once upon a time it was unnecessary to look beyond constitutions. Each represented the highest expression of the individual will of a political community, sovereign to the extent it could defend (and project) that sovereignty among the community of nations.” Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113(3) Penn State Law Review 671 (2009). I have suggested that a sort of transnational constitutionalism has sought to claim the privilege of arbitrating constitutional values (and thus constitutional legitimacy). That system is transnational and secular. It is grounded in the development of a single system designed to give authoritative expression to the customary values of the community of nations that together make up the values systems of constitutionalism and constitutional legitimacy. Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century, 27 Miss. C. L. Rev. 11, 34-37 (2008). A key element of transnational constitutionalism is “democracy.” Indeed, in the United States, it is not uncommon to understand that there is an important role for “constitutionalism in stabilizing democratic governance in . . . fractured societies. . . because of the limitations it imposes on democratic choice.” Samuel Issacharoff, Constitutonalizing Democracy in Fractured Societies, 82 Tex. L. Rev. 1861 (2004).
The deepening of a culture of transnational constitutionalism within the community of nations is providing an institutional and principled basis permit intervention into the internal affairs of other states where their governments are seen to violate either their own international constitutional orders or the limits on the application of any internal constitutional order suggested by transnational constitutionalist substantive norms. The key element was its power to define legitimate constitutional states in a way that provided both inside stakeholders (citizens) and outsiders (the community of states) with a principled basis for ordering their relations with a government deemed illegitimate.
The Honduran constitutional crisis has proven to be a crucible of the basic parameters of transnational constitutionalism. I have written of this elsewhere. See Larry Catá Backer, The Other Shoe Drops--Brazilian Interventionism in Honduras, Law at the End of the Day, September 23, 2009; Larry Catá Backer, Democracy Part XVIII-- Constitutional Caudillismo: End Games in Honduras, Law at the End of the Day, Sept. 22, 2009; Larry Catá Backer, Reflections on the Declaration of Independence: From a Crisis of U.K. Constitutionalism in the Americas to a Global Constitutional Crisis in Honduras, Law at the End of the Day, July 4, 2009. It has been especially potent in its role as providing a legitimate basis for other states to intervene to preserve the democratic character of the Honduran constitutional order as they (collectively) see it. See, Doug Cassel, Honduras: Coup d’Etat in Constitutional Clothing?, American Society of International Law ASIL Insight 13(9) July 29, 2009, available . That crisis is swiftly coming to an end. Its resolution is greater evidence that transnational constitutionalism in its consequentialist form—as a principle justifying intervention and serving as a basis for judging the legitimacy of a government through “rule of law” analytics—is becoming a more important as a form or methodology of international relations. Politics, like war, becoming to an increasing degree contained by the language and concepts of law.
The end of the crisis was preceded by an announcement, trumpeted in the press. It was announced that “Honduras’ de facto government has bowed to U.S: pressure, accepting a deal that stands to end the four month political crisis and possibly even reinstate Manuel Zelaya as the country’s president.” Adam Thompson, Honduras Accepts Deal to Allow Return of Ousted President, Financial Times, Oct. 31, 2009 at A-4. The driving force for the agreement was neither the Cubans nor the Organization of American States, that had each placed no small role in shaping events. Noticeably absent as well was Brazil—missing its opportunity fr leadership by overplaying its hand near the end. Instead, it was, to some extent, business as usual in Central America-the deal was brokered by Tom Shannon, U.S. Assistant Secretary of State on the basis of credible threats of cutting off (and restarting) the considerable U.S. aid to this small and poor state. Id. Mr. Zelaya gets some of what eh wants—reinstatement as President, for as long as it takes to hold the elections scheduled for the end of November and in due course install the successor President. But he loses tremendously, by agreeing to refrain from “attempting to change the constitution,” the issue that precipitated his ouster this past summer. “On the day he was ousted, Mr. Zelaya had tried to hold a referendum on constitutional changes.” Id. The deal would also require both Mr. Zelaya and his successor, Mr. Micheletti, “to respect the results of presidential elections which are scheduled for November 29.” Id.
Mr. Zelaya and the outsiders who brokered the deal have all hailed the agreement as a triumph. . . .for democracy. Mr. Zelaya “hailed the agreement as a breakthrough. ‘It is a triumph for Honduran democracy,’ he said.” Id. Mrs. Clinton “called the agreement a victory for Latin American democracy.” Id. More telling she acknowledged the pivotal role of transnational constitutional principles as a structural factor for assessing the legitimacy of the intervention on behalf of Mr. Zelaya. “’this is a big step forward for the Inter-American system and for its commitment to democracy,’ she said.” Id. Of course, this sort of triumphalism might encounter a different reaction should it ever be turned in the direction of the United States. Though of course, Honduras will be distinguished; power tends to provide the great exception to any rule. And Mr. Michelleti was more pragmatic. He “told reporters that the deal marked “the beginning of the end of the country’s political situation.” Id.
In the end there was compromise all around—the successors to Mr. Zelaya to ensure the legitimacy of their re-election and the return of aid monies; Mr. Zelaya s that he might return and have the legitimacy of the end of his tenure affirmed; the international community to affirm the authority of its oversight role in the governance of its Member States; and to some extent, the autonomy of the constitutional order of Honduras. But the latter, of course, is the critical element marking the success of regimes of transnational constitutionalism; international norms now more strongly cabin the constitutional orders of nation states—or at least small one in Central America. But importantly, the Honduran constitutional crisis and its resolution also evidences what is emerging as the greatest cure to constitutionalist defect, however induced. . . elections. In this case, all sides see elections as the great crucible from out of which legitimacy will emerge.