God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century

Abstract

With the adoption of the Iraqi and Afghani constitutions in the early 21st century, after substantial American prodding, constitutionalism has entered a new phase. This new phase upsets the system of foundational transnational constitutionalism, grounded in a secular, human rights values maximizing, universalist standard, that appeared with the adoption (after substantial American prodding) of the German Basic Law and the Japanese post war constitution. This system of transnational constitutionalism shifted authority for structural limits on national constitutional expression from individual states to the community of nations acting through the international system elaborated after 1945. But half a century later, this jurisprudential basis of global transnational constitutionalism is in flux: and authority over norm setting is contested. The foundations of a universal constitutionalism are in flux. At the beginning of the 21st century the system of secular, political, international norms-bounded constitutionalism - that great political triumph of the Allied Powers after WWII - is being challenged from a variety of different directions. This paper focuses on one of the most important vectors of these challenges of the early 21st century: the challenge by transcendent, universalist, autonomous, religious communities and their efforts to displace secular universalist normative frameworks with transcendent religious frameworks no less universal. The paper starts with a brief description of the constitutionalist framework prior to the Second World War. The paper then looks at the contestation of this framework and the great post-WWII Western project of contextualizing constitution making within limits derived from international law, norms or standards. The focus then turns to the great opposing constitutionalist system, examining the rise of religiously based or theocratic systems to challenge the orthodoxy of the secular post-WWII supra-constitutionalist project. The paper ends with end with a look to the implications of these seismic movements in global constitutionalism both at the level of constitutional theory, and at the as-applied level of the law of the constitution now possible within states, especially states without homogeneous populations. It suggests that differences among constitutional orders have now moved up from the state to the international level. Comparative law ought now to be concerned not solely with distinctions among states, but also with distinctions among global systems realized in national legal orders. It also posits potential implications for American Religion Clauses jurisprudence, with an eye to the possible construction of a secular theocratic constitutionalism, or for a greater privileging of religion within the American political community.

Keywords: constitutionalism, religion, islam, christianity, rule of law, transnaitonal law, Iran, Iraq, Afghanistan, Germany, Japan

JEL Classification: K19, K33