"Is Transformative Constitutionalism an Illusion?"

The conceptual puzzle is how to understand ‘transformative constitutionalism’? A glimpse of existing literature reveals that there are broader and narrower conceptions of transformative constitutionalism. Broader conceptions point to the aspiration that the Constitution transforms political and social institutions and power relationships in a democratic, participatory, and egalitarian directions. Narrower perspectives refer to a commitment to transform certain features of the society, such as inequality and poverty. The conceptual puzzle expresses the question whether ‘transitional constitutionalism’ should be understood with a broader or a narrower conception.

The possibility puzzle is whether constitutionalism can be transformative. ‘Constitutionalism’ refers to a descriptive and a normative claim. The descriptive claim states that government is created and structured by means of legal norms. The normative claim is that the exercise of government should be limited by legal norms. While the latter claim explains the status quo, the second somehow justifies its perpetuation. These claims show why transformative constitutionalism gives rise to a paradox. It is paradoxical to expect from constitutionalism to perpetuate the status quo and, at the same time, to transform it. The possibility puzzle expresses the question as to how this paradox is to be solved. Furthermore, it implies asking whether the directive function of constitutions and its institutional implications suffice for transforming troubled societies.

The institutional puzzle relates to the question: What institutional arrangements does the implementation of transformative constitutionalism presuppose? Scholars usually point to an active role of constitutional and supreme courts concerning the implementation of rights. However, do apex courts actually have the capacity to carry out or, at least, catalyse the expected transformations?

The final puzzle refers to the performance of transformative constitutionalism. There is disparity in the literature concerning the question on whether transformative constitutions have actually produced the desired changes, or if they have only become unintended sham constitutions. This lecture undertakes a critical analysis of the conceptual, possibility, institutional, and performance puzzle. As a result of the analysis, it makes two arguments. First, that transformative constitutionalism is to a remarkable extent an illusion. Second, it suggests a restatement of its essential tenets. In particular, it proposes to redesign the activist role of apex courts for a model of collaborative constitutionalism that highlights the functions of the legislature and the executive, and the contribution to the transformation of private and international powers, as well.

Carlos Bernal is Justice of the Colombian Constitutional Court. His qualifications include a LL.B. from the University Externado of Colombia (Bogotá – Colombia) (1996), a S.J.D. from the University of Salamanca (Spain) (2001), and a M.A. (2008) and a Ph.D. in Philosophy (2011) from the University of Florida (U.S.A). He has held visiting professorships at the Faculties of Law of the Universities of Paris I (Sorbonne) and X (Nanterre), and the Universty of Leon (Spain), and Senior Research Fellowships at the Yale Law School, the Kings’ College Law School, and the Max Plack Institute for Comparative Public Law and International Law (Heidelberg). His scholarship focuses on constitutional rights’ interpretation, comparative constitutional change, general jurisprudence –in particular on the intersection between social ontology and legal theory–, and the philosophical foundations of tort law.