by Gary Jeffrey Jacobsohn. Cambridge, Massachusetts: Harvard University Press, 2010. 388pp. Cloth. $45.00/£33.95/€40.50. ISBN: 9780674047662.
Reviewed by Martin Edelman, Department of History, Philosophy, Political Science, Kingsborough Community College, CUNY. Email: me354 [at] albany.edu.
Gary Jeffrey Jacobsohn has written a major work. It deals with the role that constitutions play in contemporary societies. CONSTITUTIONAL IDENTITY makes important contributions to constitutional theory, comparative law, and comparative politics. Those contributions spin off the book’s central thesis: “Constitutions are in a decisive way characterized by disharmony, a process that may result in changes in identity that, however significant, rarely culminate in a wholesale transformation of the constitution” (pp.325-326).
Following Aristotle, Jacobsohn insists that a nation’s constitution is more than a written document; it also entails the fundamental norms and principles of a particular society. “The constitutional text is usually a critical component of constitutional identity but not coterminous with it” (p.78). This broad concept of constitutionalism enables him to include insightful discussions of the ongoing constitutional debates in Israel, which to this day lacks a formal, integrated, written constitution.
Unlike Aristotle, Jacobsohn maintains that not all nations have real constitutions. For him, the core of constitutional government is the rule of law and the administration of impartial justice (p.70). (So much for the sham constitutions perpetrated by the likes of Josef Stalin.) These are the universal essentials. The heart of a nation’s constitutional identity is how it blends such universal values into its own culture.
It is the blend with a nation’s particularistic history, mores, values and aspirations that defines its constitutional identity. A nation’s constitutional identity is never a static thing. (So much for ‘originalist’ theories of constitutional interpretation.) Rather, a constitutional identity emerges from the interplay of inevitably disharmonic elements (p.133).
Jacobsohn correctly argues that his major contribution to constitutional theory is that “disharmony, whether lodged within a constitution, or . . . in the gap between inscribed commitments and external realities, is the main impulse behind the shaping of constitutional identity” (p.335). Inscribed commitments frequently contain unresolved conflicts papered over in the compromises that produced a written constitution. In the United States, the 1787 Constitution deliberately left unresolved the contradiction between slavery and the Founders’ commitment to universal natural rights. External realities are the changed environments (political, economic, attitudinal) that all long-lasting architectonic texts must confront. In the United States, the industrial [*133] revolution generated a conflict over the role of the national government. The resolution of disharmonic elements leads to a modification of a nation’s constitutional identity.
Yet modification is not synonymous with mutation. As a nation committed to constitutionalism struggles to harmonize disparate elements, it usually remains true to the basic structures that comprise its constitutional identity. Maintaining that constitutional identity is the lodestone. Thus Jacobsohn feels comfortable resolving the dilemma of an unconstitutional constitutional amendment. The Supreme Court of India, he argues, was correct in rejecting a procedurally valid constitutional amendment on the grounds that it substantively violated the basic structure of the nation’s constitutional identity. By implication, introductory American political science textbooks are correct in emphasizing the importance of the Constitution of 1787. For all the changes, via amendments and interpretations, the United States is still denoted by its core constitutional identity established by the Founders.
The book’s contribution to comparative law spins off its discussions of the incorporation of universal values into a nation’s constitutional identity. As a nation’s political leaders and its Supreme Court Justices seek to resolve disharmony, they should take account of both universal and particularistic elements. Universal values tend to enhance the quality of citizens’ lives; particularistic elements form the very substance of those lives. In the current debate between Justices Anthony Kennedy and Antonin Scalia (LAWRENCE v. TEXAS, 2003) about the legitimacy of non-American sources for U.S. Supreme Court decisions, Jacobsohn supports the former. A nation can learn invaluable lessons from observing how other countries handled similar problems. But he argues for the need to act prudently, to always be sensitive to the nation’s historical customs and practices. “I share the particularist perspective on constitutional arrangements as manifestations of key attributes of national identity, but contend that this should not preclude courts from seeking to strengthen the supports for constitutionalism while remaining attentive to the requirements of their respective polities’ distinctive constitutional identities” (pp.143-144).
The subsequent discussion of leading cases in Israel, India, and Ireland serve well to illustrate this point. In Israel, for example, there is a persistent tension in resolving the core elements in its constitutional identity as a Jewish democratic state. The democratic element emphasizes the universal value of equality of all Israeli citizens, Jew and non-Jew alike. The Jewish element emphasizes the particularistic nature of Israel as a homeland for a people who suffered from 2,000 years of exile. In his illuminating discussion of the QA’DAN case, Jacobsohn is sympathetic with Chief Justice Aharon Barak’s opinion that strengthened the position of Palestinian-Israelis right to buy a home in a state-supported housing development. The State was not permitted by law, the Court held, to allocate state land on the basis of discrimination between Jews and non-Jews. He is critical, however, that the Court’s opinion failed to recognize that equality in Israel may at times have to be [*134] tempered with an awareness of particularistic realities. He is therefore more impressed with the prudential quality of Justice Mishael Cheshin’s concurring opinion. It argued that under existing conditions the Qa’dan family was not treated equally (pp.150-168).
The book’s contribution to the study of comparative politics lies in Jacobsohn’s contextualization. He invariably provides a full, well-rounded discussion of the factors involved in major constitutional decisions. Chapters 5 and 6 utilize family law issues for in-depth examinations of a constitution’s role in a nation’s social fabric. Again we see “that whatever lessons might be transferable from one nation to others require[s] intense and sustained engagement with specific places and their distinctive political cultures” (p.270). The legal/court student learns about the actions of key political leaders; the politics student learns how key court decisions play out in the social/political realm. Constitutionalism is not the special preserve of lawyers and judges. An operative constitution belongs to all the engaged citizens of a country.
CONSTITUTIONAL IDENTITY is a landmark. With its publication the founders of the comparative law groups in IPSA and APSA – such as Neal Tate, Walter Murphy, to mention only the recently departed – can see the fruits of their endeavors. Gary Jeffrey Jacobsohn’s work needs to be widely read and discussed. It will undoubtedly provide the model for many future comparative studies. We can only hope they will be as meritorious.
LAWRENCE v. TEXAS, 539 U.S. 558 (2009).
QA’DAN v. ISRAEL LAND ADMINISTRATION et al, 54 (1) P.D. 258 (2000).
© Copyright 2011 by the author, Martin Edelman.