Neo or Retro Constitutionalisms. A Critical Reading of Constitutional Democracy and its recent Transformations (1990-2010) – NEORETRO

NEORETRO
Neo or Retro – Constitutionalisms
A Critical Reading of Constitutional Democracy and its Recent Transformations
(1990-2010)

Toward the end of the 20th and the beginning of the 21st century (1990-2010), the notion of constitutional democracy has undergone throughout the world a wide range of political transformations, raising the question of the possible advent of a new age for constitutionalism. Following constitutionalism’s first age, which coincided with the American and the French Revolutions and with written constitutions entrenching the “separation of powers” principle, the second age of constitutionalism essentially developed in the aftermath of 1945 with the growth of constitutional justice guaranteeing fundamental rights. Recent transformations of constitutional phenomena –including but not limited to the drafting of new constitutional documents in relation to democratic transitions, the development of new objects of constitutional law-making and of novel perspectives on the issues of constitutional interpretation and “constitutional essentials,” the expansion of judicial review, even in countries lacking a written constitution, the problem of states of exception, etc.– have led different legal actors, be they public officials or legal academics, to articulate a variety of discourses.

This research project purports to analyze these phenomena objectively as instances of “neo-constitutionalisms,” whereby the plural emphasizes that we do not intend to restrict the meaning and import of the expression to any specific school of thought. While seemingly advocating a new –third– constitutional age, these discourses call for a critical analysis, as they rely on re-interpretations of constitutionalism’s historical sources and appeal to arguments amounting to what can be labeled “retro-constitutionalisms.”

Based on a series of surveys of judicial and doctrinal discourses articulated during 1990-2010 in a number of emblematic democracies, the “neo-retro-constitutionalisms” project proposes an in-depth analysis of the debate surrounding these recent constitutional transformations. Combining different approaches –legal, philosophical, sociological and historical– our critique suggests a new topography and classification. Our objective is to determine whether there exist deep-rooted global trends presiding over these legal transformations or whether the plurality and specificity of national experiences sweeps away any apparent uniformity. Our research also offers thoughts on the relevancy of a global constitutional history beyond the mere juxtaposing of national histories. This project will lead –though a series of colloquia, conferences and two ambitious books– to the articulation of a critical theory of constitutional phenomena and the ideologies which underlie them.