Constitutional Law

Having published in the first issue of the first volume of this journal twenty-five years ago, I am delighted to accept the invitation to comment on Professor Richard Albert’s thought-provoking new conceptualization of constitutionalism as it might relate to New Zealand. The issues are not free from controversy in New Zealand, so I tread carefully and from an orthodox constitutional perspective.  I also sound a note of warning about assumptions, grounded in realism.

Albert favors lawful and peaceful attempts by peoples to use the levers of politics and law to achieve constitutional recognition within a state. He sees this as preferable to the sort of revolutionary self‑determination pursued through violence, such as by the Dutch against the Habsburgs in the sixteenth and seventeenth centuries or the Americans against the British in the eighteenth century. Few would disagree. But I caution against assuming away the underlying influence of coercive power in modern nation states. A worldwide resurgence of power politics is currently underway. Legal and political mechanisms in even well-established democratic states can be susceptible to power.

Underlying patterns and distribution of historical coercive power influence the path-dependent nature of constitutional evolution in any state. Historical coercive roots have a habit of running through the grain of a nation’s constitutional culture. They can determine the success of constitutional initiatives. For example, Indigenous peoples are a numerical minority in most states now and their political power tends to reflect that. In many cases, peaceful and lawful initiatives are the only means of constitutional recognition available to indigenous peoples. But such initiatives do not always succeed.

In this Essay, I briefly outline how Albert’s framework can characterize aspects of the constitutional evolution of New Zealand.

This Essay examines the concept of “decolonial constitutionalism,” as articulated by Professor Richard Albert, focusing on its application to Chile’s recent constitution-making processes. Albert defines decolonial constitutionalism as “the use of legal, legitimate, and non-violent means to assert sovereignty, to secure rights, or to achieve recognition for a people, nation, or state.” The Essay explores how Chile’s attempts to draft a new constitution between 2019 and 2023 reflect both the potential and challenges of decolonial constitutionalism, particularly in relation to the rights and recognition of Indigenous Peoples. The first process (2019–2022) prominently featured Indigenous demands, including the proposal to reconfigure Chile as a plurinational state, but was ultimately rejected by the public. The second process (2023), in contrast, marginalized Indigenous claims and emphasized national unity, leading to another rejection. Despite these failures, the Essay argues that the constitutional recognition of Indigenous Peoples, even in a limited form, represents a significant—albeit incomplete—step toward decolonization. The Essay concludes by suggesting that future efforts to address Indigenous rights may need to shift from constitution-making to judicial enforcement and international legal mechanisms. Through this analysis, the Essay contributes to the broader discourse on how constitutional processes can serve as tools for decolonial emancipation.

The American Declaration of Independence kindled the first successful decolonial movement in the modern world, culminating in the enactment of the United States Constitution. From colony to sovereign state to great power, the United States modeled for subordinated peoples abroad how to win their own battles for sovereignty. Since the end of the Second World War, however, America’s eighteenth-century precedent of revolutionary self-determination is no longer the prevailing path to decolonization. The traditional warmaking toolkit for winning independence—revolution, illegality, and violence—has been replaced by more orderly tactics consonant with the rule of law. Evolution, lawfulness, and continuity are the touchstones in the new global model of decolonial constitutionalism that now lights the path to self-determination.
Decolonial constitutionalism is the use of legal, legitimate, and non-violent means to assert sovereignty, to secure rights, or to achieve recognition for a people, nation, or state that is legally or politically subordinate to domestic or foreign actors. In contrast to the American model of revolutionary self-determination, this new global model of decolonial constitutionalism has pluralized actors and sites of contestation, though the decisive objective of decolonization remains the same. Once won in the theatre of war, decolonization is now prosecuted in parliaments, courts of law, and the public square. The protagonists are no longer soldiers and generals; they are politicians, lawyers, judges, and civil society. Nor does self-determination today necessarily entail establishing a new state in the international order and taking a seat among equals alongside the countries of the world. In our new era of non-violent claims to sovereignty, decolonial movements choose instead to write new constitutions for existing states, to amend enduring constitutions, to enforce treaty rights, to promulgate multilateral agreements, or to pursue analogous courses of disruptive constitutional activity well short of declarations of independence. Decolonial constitutionalism therefore refers to a suite of strategies to exercise self-determination, defined expansively to comprise a broad scope of decolonial objectives consistent with the rule of law.
In this Article, I introduce, illustrate, and theorize decolonial constitutionalism as the modern form of self-determination. Drawing from historical and modern decolonial movements, I show how subordinated peoples have seized the levers of law and politics to innovate new paths to self-determination without taking up arms, in the process showing similarly situated peoples how to achieve their own goals of independence, nationhood, or constitution-making in a manner that reinforces rather than undermines the rule of law. These strategies have proven ultimately more productive for decolonial movements to free their peoples from bondage in law or politics, to attract ideologically aligned partners at home and abroad, and to more effectively communicate to internal and external audiences the moral legitimacy of their claims to self-determination.

The 2011 Arab Spring was an inflection point for the Middle East and North Africa region, representing an opportunity for democracies in countries that have only experienced authoritarianism as sovereign nations. Both Tunisia and Egypt drafted and ratified new constitutions in the wake of their revolutions. Among the chief worries that citizens and onlookers had in their drafting processes was the role that Islamists would have, particularly in human rights and minority protections. As more citizens wanted fundamental rights protected in their constitutions, the drafters had the task of incorporating them with the Islamic identity of the state. Compromises by the Tunisian Islamists and secular groups led to a more well-received constitution by minority groups, while the opposite happened in Egypt. This Comment argues, based on the comparative success of the 2014 Tunisian Constitution, that religious-based democratic states will need to include more protections for minority and historically marginalized groups to increase their acceptance and longevity.