Between Fact and Norm: Narrative and the Constitutionalization of Founding Moments
Richard Albert and Menaka Guruswamy (eds), Founding Moments in Constitutional Creation and Reconstruction (Hart Forthcoming)
21 Pages Posted: 15 Nov 2018
Date Written: November 7, 2018
Both the subject who gives birth to a constitution and the time a constitution comes into being are part of the multifarious construct of the genesis of a constitution. The intertwinement of the constituent power (subject) and the founding moment (time) not only gives rise to issues at the centre of scholarship on constituent power but also speaks to ambiguities about the relationship between the founding moment and its ensuing constitutional order in constitutional theory. In this paper, I examine the question of the founding moment in constitutional scholarship in light of the antinomy between fact and norm. I argue that contemporary constitutional theories fail to account for the role of the founding moment in the constitutional order because they are absorbed in the narrow question of constitutional interpretation at the expense of making sense of the constitutional order. Drawing upon Robert Cover’s inspiring discussion of nomos and narratives, I contend that the founding moment is pivotal to the discovery of constitutional meaning as it stands as the reservoir of the enriching narratives about the birth and growth of a constitutional order. Through narratives, the founding moment is related to its ensuing constitutional order and thus ‘constitutionalized’, suggesting a broader understanding of interpretation in constitutional theory than contemporary constitutional theories assume. On this view, the founding moment is neither a mere historical fact nor a placeholder for universal norms. Rather, narratives about the founding moment concern more the invigoration of the existing constitutional order than its original foundation. Thus emerges an alternative attitude towards the unsettling concept of constituent power: the constituent power’s appeal does not so much lie in the substitution of a new constitutional order for the existing one as in its rejuvenation of the latter since it is reincarnated in the narratives-mediated constitutionalized founding moment.
Keywords: fact and norm, founding moment, constitutional identity, constituent power, Robert Cover, narratives, constitutional nomos, constitutional interpretation, constitutional imagination
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