The Dialectical Mimetic Semiotics of the Constitutional State and the Signification of Preambular and Extraconstitutional Texts”

I am delighted to circulate a rough discussion draft I have prepared in anticipation of its first presentation at a conference organized by the remarkable Martin Belov, Professor in Constitutional and Comparative Constitutional Law at the University of Sofia ‘St. Kliment Ohridski’, Faculty of Law. The event, Imaginaries of Crisis and Fear: Constitutional and International Law Perspectives, will be held in Sofia, Bulgaria 8-10 November.

My contribution to that exciting event, and the circulated discussion draft, is entitled  The Constitution of Fear and the Performance of Crisis: The Dialectical Mimetic Semiotics of the Constitutional State and the Signification of Preambular and Extraconstitutional Texts. The object is to apply a semiotic lens to constitutional projects (generally): what happens if the constitutional object, its text, is approached as both a memory of the threat-fear-crisis-response-resolution trajectories that produced it, and as the stage and stage directions for mimetic performances of this initial dialectic in ways protective of the fundamental ideological principles that signifies the constitutional object. Interpretation then signifies (in its own right) both an affirmation of the generative act and an affirmation of the solidarity enhancing repeat performances relevant to current actors in time, place and space. Constitutions, in this sense are mimetic dialectical spaces defined by the ideological principles that give them form, and built to anticipate and channel the inevitable repetition of the threat-response the initial resolution of which was the constitution itself. In that context it is worth considering the clues that might be extracted from key extraconstitutional and preambular text. The focus is on the constitutional projects in the UNited States, China, Cuba, and Kosovo.

Here is the abstract (it needs to be shortened certainly but provides a perhaps useful synopsis of what is attempted):

Abstract: Constitutions are studied as rational expressions of political calculus aligned in time, space, and place. But constitutional emergence from the womb of conflict are born in emotion—anger, vindication, joy, and faith in a shared future; and they never stray far There is a semiotics of constitutional emotion; and a connection between the semiotics of constitutive emotion and constitutional text—as norm and form. It is the state and profundity of that emotion, perhaps more than the calculus of rational governance, that propels a people to statehood, and statehood to take its particular form. The state of emotion must be maintained, honored, and performed, if it is to carry the state forward from the moment of its emergence, through the long period of time when the founding generation, and their emotional imaginaries are long dead, and the context in which that emotion was felt and understood become incomprehensible outside of its time. It is to the preservation of that emotional explosion, and its alignment with core constitutional text, that constitutions devote time and effort, usually in its preambular text, and sometimes in extraconstitutional documents with quasi-constitutional significance. If powerful enough, the emotive semiotic of constitutional explosion can affect not just its political community but those of other political communities looking for a way to rationalize and direct their own collective political emotion. The focus will be on the way that emotive context—a revolution to preserve traditional values; a communist revolution within a multi-state imperial power; and a revolution with a long fuse grounded in anti-colonialism and anti-imperialism. To those ends the essay first looks to a powerful instance of emotive semiotics, the U.S. Declaration of Independence (1776), and its reflection in the subtextual mimetic dialectics of threat and crisis and resolution in the U.S. federal Constitution (1789). It then considers its value as a template for the constitutionalization of separation in the 21st century through the lens of the preambular texts of the Chinese (1982) and Cuban (2019) constitutions. It then considers its transnationalization in the context of the Kosovo Declaration of Independence (2008). Both express anger driven clusters of emotion with constitutive effect but from very different starting and ending points. For the United States, the traditional form of popular solidarity and independence—grounded in fear, crisis and its resolution—and originating in and through popular action (even if elite directed). For Kosovo, the emerging form (at least for subaltern states)—also grounded in fear, crisis and resolution, but enveloped in a network of expectation and approval from more power and transnational actors.

Contents:
1. Introduction.
2. American Constitutional Convulsions in the Search for the Structures of a More Perfect Union.
3. The Marxist-Leninist Variations: A Glimpse at China and Cuba and Foreign Corruption.
4. From the State to the Techno-Bureaucratization of Dialectics of Fear and Crisis: A Glimpse at Kosovo.
5. From Template to the Mimetic Constitutionalization of Fear/Crisis.

6. Conclusion.

The draft may be accessed here (SSRN); the Introduction follows below.

 

 

 

The Constitution of Fear
and the Performance of Crisis: The Dialectical Mimetic Semiotics of the Constitutional
State and the Signification of Preambular and Extraconstitutional Texts

Larry Catá Backer

W. Richard and Mary Eshelman
Faculty Scholar; Professor of Law and International Affairs

Pennsylvania State University

239 Lewis Katz Building

University Park, PA 16802

 

For book: “Imaginaries of Crisis and Fear:
Constitutional and International Law Perspectives”

(Martin Belov, ed.)

 

Abstract: Constitutions are studied as rational expressions of
political calculus aligned in time, space, and place.  But constitutional emergence from the womb of
conflict are born in emotion—anger, vindication, joy, and faith in a shared
future; and they never stray far  There
is a semiotics of constitutional emotion; and a connection between the
semiotics of constitutive emotion and constitutional text—as norm and form. It
is the state and profundity of that emotion, perhaps more than the calculus of
rational governance, that propels a people to statehood, and statehood to take
its particular form. The state of emotion must be maintained,  honored, and performed, if it is to carry the
state forward from the moment of its emergence, through the long period of time
when the founding generation, and their emotional imaginaries are long dead,
and the context in which that emotion was felt 
and understood become incomprehensible outside of its time.  It is to the preservation of that emotional
explosion, and its alignment with core constitutional text, that constitutions
devote time and effort, usually in its preambular text, and sometimes in
extraconstitutional documents with quasi-constitutional significance. If
powerful enough, the emotive semiotic of constitutional explosion can affect
not just its political community but those of other political communities
looking for a way to rationalize and direct their own collective political
emotion.  The focus will be on the way
that emotive context—a revolution to preserve traditional values; a communist
revolution within a multi-state imperial power; and a revolution with a long
fuse grounded in anti-colonialism and anti-imperialism. To those ends the essay
first looks to a powerful instance of emotive semiotics, the U.S. Declaration
of Independence (1776), and its reflection in the subtextual  mimetic dialectics of threat and crisis and
resolution in the U.S. federal Constitution (1789). It then considers its value
as a template for the constitutionalization of separation in the 21st century
through the lens of the preambular texts of the Chinese (1982) and Cuban (2019)
constitutions. It then considers its transnationalization in the context of the
Kosovo Declaration of Independence (2008). Both express anger driven clusters
of emotion with constitutive effect but from very different starting and ending
points. For the United States, the traditional form of popular solidarity and
independence—grounded in fear, crisis and its resolution—and originating in and
through popular action (even if elite directed). For Kosovo, the emerging form
(at least for subaltern  states)—also
grounded in fear, crisis and resolution, but enveloped in a network of expectation
and approval  from more power and transnational
actors.   

 

Contents:

 

1. Introduction.

2. American Constitutional
Convulsions in the Search for the Structures of a More Perfect Union.

3. The Marxist-Leninist
Variations: A Glimpse at China and Cuba and Foreign Corruption.

4. From the State to the
Techno-Bureaucratization of Dialectics of Fear and Crisis: A Glimpse at Kosovo.

5. From Template to
the Mimetic Constitutionalization of Fear/Crisis.

6. Conclusion.

1. Introduction

 

Fear has returned to the constitutional state.
 Or rather, a state of dread for the
constitutional state, one “forced to it,- forced by dread causes.”
Forced, or compelled in the Sophoclean sense, by the very nature of the
constitutional state; the liberal constitution as the textual expression of a
constant state of fear.
The etymology of fear speaks to its connection to risk—the fear that comes with
a n event, process, choice or condition that may portend calamity, sudden
danger or attack. It is the fear of things going wrong or of never having been
gotten right. Its psychology is now well captured by the resurrection of the
more ancient use of the term in the form of the fear spell of gaming: the
projection of the image of an object’s worst fear that causes the object to
flee,
constitutionally speaking. Though it doesn’t last long; its terror, the fear of
the actualization of the manifestation of fear, lingers; always. What is cast
once, can be cast again, and again. “’constitution of fear’ is not a one-off
occurrence. Quite the contrary. It crowns the politics of resentment. It
becomes its manifesto.”
And it serves as an object lesson; there is indeed something worth fearing; in
contemporary times the Soviet Union serves as the constitutional scary story
par excellence—both for liberal democracy and Marxist-Leninist systems;
for those with longer memories, the Kaiserreich.

 

At the start of the 21^st
century fear, the dread if what might be, was manifested in its old monsters.  At their core were questions that generated
interest within the debates about the viability and essential character of
liberal democracy at least with respect to its interactions with organized (and
perhaps disorganized) religion.
Today that fear has taken a more foundational turn. It is a fear of constitutional
entropy in its sense of a gradual (or perhaps precipitous) decline into
disorder.
One encounters, in modern form, the insights of Abd al Rachman ibn Khaldun
respecting the inevitability of the dissipation of group solidarity
(‘assabiyah) across time.
In its modern forms it has touched on all constituted systems,
and states.

 

Does a crisis of the constitutional
state follow? We appear to be in the age of constitutional crisis.  The intelligentsia has been curating the
notion in interesting ways,
and in its more elaborate forms, from its academic leading forces.
And not just the state is reconceived in the imaginaries of crisis.
The lifeworld of that crisis requires the cultivation of fear, and especially
the fear that the inhabitants of the structures built through constitutional
text are ready to leave the building..
Fear is the soil in which constitutional crisis can be cultured, nourished, and
eventually harvested. That cultivation is also an essential element of the
dialectic of constitutional systems, especially that between the theory of the
constitutional object and the fulfillment of its intent (assuming a consensus
around the meaning of that notion) in fact. “It is a longstanding theme of
critical literature on American politics that the system of government of the
United States is an eighteenth century edifice which has serious difficulties
in coming to grips with the challenges of the twentieth century.”

 

The word crisis is itself richly
semiotic.  Beyond its fairly
straightforward contemporary usage crisis points to its richer etymological sub-text.
Its origins are embedded in judgment of a specific kind—of the determination in
the decisive point of the course of disease at which change must come, for
better or worse. More literally crisis signifies a point of judgment (from its
Proto-Indo-European root *krei), a point that separates or distinguishes
between  was possible before and what was
likely after.  Fear may be found at that
point of separation. Crisis, then, objectifies a course of events at specific
temporal points, which it then signifies (going back/going forward/going
sideways/going up or down), and which then imbues that signification with
meaning (success/failure/good/bad).   The
essence of crisis  is also entropic in
the sense that the indeterminacy of systemic rules as a function of its
application inevitably opens  systems
(this generates the constancy of fear) to points of signification that may
change the character of a system from what was (conceived or experienced) to
what will be.

 

Constitutional crisis, and
its imaginaries of fear, add a particular quality to this semiosis. Crisis is
the interpretation (judgement) of the signification (the principles and
assumptions embedded in the constitution) of an object (the constitution
itself). When one speaks to the imaginaries of constitutional crisis, then, one
speaks to the semiotics of instability, of a deviation, from the expectations
and trajectories that are supposed to affirm that the system is working
“correctly.” One also speaks to the temporalities of that crisis—one that
changes character from the moment of constitutional inception through the
moment of constitutional disintegration. In this sense, then, what is permanent
is a state of constitutional crisis;
what Mao Zedong described as continuous revolution,
in contradistinction to Leon Trotsky’s more objective based concept of
permanent revolution,
reformulated for consumption beyond the narrow lens of Marxist-Leninist theory.
What is mutable is the constitution itself as a function of the dread around
which crisis is manifested and response produced.

 

Constitutions, however, are more
likely studied as rational expressions of political calculus aligned in time,
space, and place.  One understands reason
here in its more ancient sense—as an explanation or justification adapting
action (constitution) to ends (government), but also in its contemporary sense
as an understanding with universal validity.
That rationality has been parsed in a variety of different ways, each perhaps a
better reflection of their starting point than of the constitutional end point.
One might speak to constitutions as contracts for the organization of a
political collective as property in the hands of their members.
Conversely, one might invert this ordering premise to speak to constitutions as
contracts for the organization of social relations against the apparatus of
government.   One
can speak to the constitution of sovereignty, or of the sovereign constitution,
as if these objects were either inevitable or immutable.  And hovering over all of this is what has
become  the constitutional incantation par
excellence in this century—the dialectical relationship and mutual
constitution of incantation of the middle of rule of law and constitution.

 

To speak of constitutional
rationality, then, is to engage in the process of constitutional
rationalization in the sense of justification. The former implies an innate
quality of constitutions; the later an effort to invest that quality in
constitutions. Both express the impulse toward perfection—in the sense of the
Christian doctrine of justification,
but to different ends. That rationalization—our constitutions—express, perform,
signify and fulfill the premises of the political-economic model to which it
gives expression, a phenomenological expression in acts of faith in the
perfection rationalized within that political-economic model. In this sense, constitutional
rationality has its own psychology—as a phenomena of the mind. One does not
speak of psychology as a science but rather as an application of the philosophy
of solidarity—of the construction of orthodoxy and deviance, and of the
development of structures for the privileging of the one and the suppression
(or cure) of the other. Psychology in this sense is the rationalization of a
phenomenology of orthodoxy built on the mimetics of behaviors that are
themselves not just dialectical (and thus intersubjective) but also managed
within strictly its bell curves.
What is natural about constitutions, then, from this perspective are its bell
curves which are themselves the manifestation of its ordering premises in the
actions and structures that reaffirm their value.

 

Constitutions, observed from their
rear-ends, are well positioned to be presumed rational expressions of the
unstoppable urge of humans toward the rational—especially when it comes to
their highest order social relations;a
rational phenomenology in the style of Husserl.
But constitutions are not ordinarily “made” in an antiseptic political laboratory;
constitutions are not conceived and drafted in themselves; constitutions are not
fabricated dispassionately as a product of rational thought detached from the
context in which they  appear—much as one
might want to theorize that possibility. Since the seventeenth century,
certainly, many constitutional orders have emerged from out of the womb of
conflict.
They  are born from fear and crisis in the
passion of circumstances that made it possible to constitute a nation, a state,
and its apparatus, and also to tear it apart—anger,
vindication, joy, and faith in a shared future must be cultivated, and so
cultivated, they must be transposed into the normative and institutional text
around which the state is organized.  

 

The term “emotion” is understood in
its classical sense—as a moving, or stirring or agitation, “from Old French emouvoir
“stir up” (12c.), from Latin emovere “move out, remove,
agitate.”
The agitator, of course, is fear and crisis. The agitation implies emotional
rather than physical movement—a state of agitation, and it adds a psychological
layer to the psychology of constitutional rationality. It also implies a
movement that is not necessarily tied to a direction or form—emotion stirs up
feeling; and emotion may in turn be stirred up 
in the process of constitutional conception, gestation, and birth. And
it continues to stir during the course of the “life” of a constitutional order
until it is overturned and the process begins again.  Between inception and abandonment lies
preservation. In Freudian terms emotion may be understood as the manifestation
of the id to the superego of the rationalization that produces the ego of the
constitutional text. In Jungian terms, perhaps, one dives into the subconscious
of collective solidarity which is as solid as the life of the generations
called on (trained to) its orthodoxies and invested in its fears. And its
drivers—fear of an in crisis.

 

Fear and crisis define the heart of
the constitutional compulsion that both defines the constitution as object and
that signifies its structures and processes: compulsion; challenge; agitation;
reform/protection; orthodoxy; heresy; abandonment—rinse and repeat. It would
follow that constitutional emotion, its agitation, is distilled so that it
might survive the moment of its realization.  as the foundational premises, the way of
looking at the world and the course of events that led to constitutional emergence,
that are then elaborated in constitutional text, or in text that inform
constitutional frameworks. Those fundamental premises are not lost in the
process of constitutional crafting, neither are the emotional states in which
they are forged.  Transposition and
preservation provide the ground on which constitutions are developed  and their normative structures cultivated.

 

It is the state and profundity of the
emotional state of constitution (fear and crisis), and its response
(preservation through iterative mimetic repetition of action within its
structures), perhaps more than the calculus of rational governance, that
propels a people to statehood, and statehood to take its particular form, and
compels mutation (even in the face of unchanging text) of that state as one
generation gives way to another. . The state of emotion must be
maintained,  honored, and performed, if
it is to carry the state forward from the moment of its emergence, through the
long period of time when the founding generation, and their emotional
imaginaries are long dead, and the context in which that emotion was felt  and understood become incomprehensible
outside of its time. 

 

It is to the preservation of that
emotional explosion, and its alignment with core constitutional text, that
constitutions devote time and effort, usually in its preambular text, and
sometimes in extraconstitutional documents with quasi-constitutional significance.
If powerful enough, the emotive semiotic of constitutional explosion can affect
not just its political community but those of other political communities
looking for a way to rationalize and direct their own collective political
emotion. This relational framing suggests a semiotics of constitutional
emotion; and a connection between the semiotics of constitutive emotion and
constitutional text—as norm and form.
This semiotics is built on constitutional emotion as an object (the preambular
materials), as the signification of the quality of “objectivity” (the text of
these objects as an ordering system), and as a signified object that elaborates
a way of understanding and applying the signified object (the constitutional
text itself). 

 

Where does that lead one? This
contribution examines a powerful instances of emotive semiotics shaping  collective constitutional meaning making
through a semiotic lens.  The focus will
be on the way that emotive context—a revolution to preserve traditional values;
a communist revolution within a multi-state imperial power; and a revolution
with a long fuse grounded in anti-colonialism and anti-imperialism. To those
ends the essay first looks to a powerful instance of emotive semiotics, the
U.S. Declaration of Independence (1776), and its reflection in the
subtextual  mimetic dialectics of threat
and crisis and resolution in the U.S. federal Constitution (1789). It then considers
its value as a template for the constitutionalization of separation in the 21st
century through the lens of the preambular texts of the Chinese (1982) and
Cuban (2019) constitutions. It then considers its transnationalization in the
context of the Kosovo Declaration of Independence (2008). Both express anger
driven clusters of emotion with constitutive effect but from very different
starting and ending points. For the United States, the traditional form of
popular solidarity and independence—grounded in fear, crisis and its
resolution—and originating in and through popular action (even if elite
directed). For Kosovo, the emerging form (at least for subaltern  states)—also grounded in fear, crisis and
resolution, but enveloped in a network of expectation and approval  from more power and transnational
actors.  Each expresses anger driven
clusters of emotion with constitutive effect but from very different starting
and ending points. For the United States, the traditional form of popular
solidarity and independence—grounded in fear, crisis and its resolution—and
originating in and through popular action (even if elite directed). For Cuba
and China, variations on liberation from foreign domination and toward an
embrace of a radically different framing of the perception of politics and its
social relations. For Kosovo, the emerging form (at least for subaltern  states) embedded in a hierarchically
constituted set of principles of transnational constitutionalism—also
grounded in fear, crisis and resolution, but enveloped in a network of
expectation and approval  from more power
and transnational actors.

 

The contribution is organized as
follows.  First a brief theoretical
introduction to the manifestation of a semiotics of constitutional
emotion.  Second, a deeper analysis of
the signification of preambular and extraconstitutional text as memory and as
an intensification of direction with respect to constitutional framing and
interpretation through the lens of the American revolutionary experience.
Third, a consideration of that experience in the context of the
Marxist-Leninist and liberation movements in China and Cuba producing related
but distinct ordering frameworks. Fourth, a consideration of these three
distinct expressions of constitutional fear-threat structures within memories
of the triumph of a revolutionary moment of separation, in the context of a
revolutionary experience which is effectively detached in part from those
undergoing revolutionary crisis. The contribution ends  with an examination of the effects of what
unites and separates these experiences as a phenomenology of dynamic mimetic
dialectics. The focus will be on the way that the emotive context fuels fear
and directs crisis in very different constitutional contexts —a revolution to
preserve traditional values; a communist revolution within a multi-state
imperial power; a revolution with a long fuse grounded in anti-colonialism and
anti-imperialism; and an ethno-religious defensive rebellion within a larger
imperial post-modern project.