Other Things and Constitution-Making

Fareed Zakaria’s latest piece here captioned “If it’s not a crisis, we can’t fix it” provides an interesting backdrop to the problems associated with constitution-making. Since this blog lists ‘other things’ as part of its subject matter, I felt that this would be a good occasion to try and link ‘other things’ to ‘law’. Zakaria speaks of how the American response to both the financial crisis of 2008 and to the post 9-11 terror threat stand in stark contrast to its attempt at healthcare reform. He suggests that perhaps the crisis is somehow conducive to prompt (and perhaps effective) decision-making. Constitutional thought also grapples with the question of how best to enact constitutions (or alternatively, how to legitimately interpret them).

Without getting into an inordinately detailed theoretical discussion, seeing as how some readers may not be intimately acquainted with constitutional dilemmas, I can state here that Ackerman‘s work deals with constitutional crises, which he terms the constitutional ‘moment’, although Elster points out that crises are not particularly the best occasions for quality drafting. The underlying principle is that the most effective and lasting constitutional solutions can be achieved during a period of crisis. A related question in constitutional theory is why constitutions are observed at all: does the crisis lend authority to constitutional text?

In India, the emergency and post-emergency era, in which courts undertook what S.P. Sathe termed ‘self-legitimating’ activism, could perhaps be said to have been one such crisis – which makes you wonder if judicial activism in India today derives its authority from the post emergency understanding of Indian constitutional law: not a unique idea, but an interesting thought for those that believe that good things too can eventually be achieved from the churning of an ocean (forgive the metaphor).

Written by
Abhinav Chandrachud
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  • While it may be true that crises aid decisionmaking, it is also true that it is the perceived nature of the crisis that makes a difference. No one would argue that there is no food crisis in India, for example, but the call to constitutional values to bring a right to food would not be effective. Perhaps, the nature of the crisis should be such that political and civil rights are at stake? Perhaps it takes tangible instances of a threat to life, as in the case of 9/11 or the Emergency in India to take constitutional values 'seriously'.