Erin Delaney’s Mapping Power: Constitutionalism and Its Colonial Legacy provides a novel and compelling conceptual framework for thinking about the relationship between constitutionalism and colonialism. Professor Delaney labels this framework “coercive constitutionalism” and situates it in a body of comparative scholarship that (1) calls for constitutional law to be decolonized (P. 385) and (2) understands decolonization to be an ongoing process, rather than a “once-off political event marked by physical withdrawal of the colonial administration.” (Justin Ngambu Wanki & Carol C. Ngang, Unsettling Colonial Paradigms: Right to Development Governance as Framework Model for African Constitutionalism, 18 Afr. Stud. Quart. 67, 67 (2019), quoted at 385.)
As is appropriate for a text that appears in a collection honoring Mark Tushnet, Delaney draws on aspects of Tushnet’s scholarship to develop her framework. First, she invokes Tushnet’s “understanding of law as power and social structure” (P. 386) and its attendant methodology of rich description. Second, she adopts an approach that Tushnet labelled “adjectival constitutionalism,” which seeks to identify various kinds of constitutionalism, rather than accepting that “liberal constitutionalism simply is constitutionalism.” (Mark Tushnet, Editorial, Varieties of Constitutionalism, 14 Int’l J. Const. L. 1 (2016), quoted at 387.) These two aspects of Tushnet’s scholarship inform how Delaney develops the idea of coercive constitutionalism.
Part I of this review essay identifies essential elements of Delaney’s conception of coercive constitutionalism. Part II identifies her chapter’s contributions to the comparative law literature.
I. Coercive Constitutionalism: Between Popular Agency and Coercive Structures
According to Delaney, coercive constitutionalism examines “the mutually constitutive relationship between coercion and agency in the colonial and postcolonial contexts.” (P. 391.) The approach assesses how much informed consent exists in constitutional orders that are pervaded by coercive power structures. As set out by Delaney, coercive constitutionalism involves three interlocking inquiries:
close analysis of ongoing power relations, both in the shadow of, and operating parallel to, the colonial (or hegemonic) power; a clear understanding of the cultural and political context to identify those who did not (or were not invited to) participate; and an assessment of the degree or quality of freedom for those in fact deliberating or participating. (P. 391.)
The first inquiry requires a nuanced understanding of coercive mechanisms in colonial and post-colonial contexts. Agenda-setting is one notable means of coercion. It arises when “fundamental questions of constitutional choice” (Sujit Choudhry, Old Imperial Dilemmas and the New Nation-building: Constitutive Constitutional Politics in Multinational Polities, 37 Conn. L. Rev. 933, 933 (2005), quoted at 392) are settled in ways that serve the interests of domestic and foreign elites. For example, British colonial decision-makers in Africa included in new constitutions bills of rights (and created courts to enforce them) to protect elite constituencies, namely “white settlers, domestic urban intelligentsia and foreign investors.” (Ran Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions, 25 Law & Soc. Inquiry 91, 137-38, quoted at 392.)
The second inquiry assesses how broadly the public can deliberate within a colonial or post-colonial constitutional order. Delaney cites the work of Semaghen G. Abebe to illustrate how colonial constitutional systems compromised broad public deliberation by transplanting western political and legal ideas into Africa, thereby “undermining the well-entrenched, informal traditional values that guided the lives of ordinary Africans for centuries.” (Semaghen G. Aghebe, The Relevance of African Culture in Building Modern Institutions and the Quest for Legal Pluralism, 57 ST. Louis U.L.J. 429, 433-34 (2013), quoted at 393.)
The third inquiry assesses the quality of deliberation within a constitutional polity. Delaney draws on James Tully’s scholarship to argue that the quality of deliberation in a constitutional system is compromised when people are limited to debating within the rules set by the system, rather than about the rules. (P. 393.) Thus, if a colonial constitutional system has fixed the agenda for what people can deliberate about, the quality of deliberation in that system is compromised, even if the system encourages broad public engagement with its institutions.
II. Contributions to the Literature
Delaney’s framework for analyzing the relationship between constitutionalism and colonialism contributes to the comparative law literature in two ways. First, the framework provides a counterpoint to two earlier comparative accounts that dealt with related issues. Second, Delaney provides normative guidelines for the project of decolonization that flow from her account of coercive constitutionalism.
The first account against which Delaney juxtaposes coercive constitutionalism—“imposed constitutionalism” (P. 387)—was developed by Noah Feldman to analyze constitution-making under conditions of imperialism. Delaney seems to argue that imposed constitutionalism relies on an unduly demanding conception of agency. In Feldman’s account, an imposed constitution is one that is adopted without “the full agreement” of the people and thus undermines the value of self-determination. (P. 388.) Delaney argues that imposed constitutionalism has “limited purchase,” in part, because its articulation and use of self-determination as the standard for what counts as a democratic constitution is unrealistic. She asks: “[B]efore recent years, which ‘democratic’ constitutions could possibly meet this lofty ideal?” (P. 388.)
The second account against which Delaney argues—“transnational constitutionalism”—is drawn from the work of Frederick Schauer. Schauer shifts the focus away from the dichotomy that imposed constitutionalism draws between imposition and self-determination. He aims instead to understand how “mechanisms of political influence, economic incentives, regional cooperation and much else” determine “who influenced whom” in the “migration of legal and constitutional ideas.” (Frederick Schauer, On the Migration of Constitutional Ideas, 37 Conn. L. Rev. 907, 916, quoted at 389.)
Delaney identifies two shortcomings in transnational constitutionalism, which seem to indicate that the account pays insufficient attention to the role of coercion in colonial and postcolonial constitutional systems. First, Delaney argues that transnational constitutionalism fails to recognize the ways in which a colonial authority can exercise “covert coercion” when it “structures the available options and sets the boundaries of ‘acceptable’ borrowing.” (P. 390.) Second, she suggests that transnational constitutionalism does not explain how “[i]nfluence shades into coercion.” (P. 390.). According to Delaney, the line is drawn at the point where a population no longer has the “capacity to resist.” (P. 391.)
Delaney concludes her chapter by articulating coercive constitutionalism’s normative project. The three inquiries summarized in Part I of this review essay evince primarily descriptive or diagnostic objectives: “recognizing what has been created, how and from what starting point.” (P. 396.) The next, normative step in the coercive constitutionalist framework involves asking “How can agency be enhanced and coercion limited?” (P. 397.) She distinguishes her normative goals from those of comparative law scholars who focus primarily on undoing colonial power and revitalizing indigenous structures of governance. According to Delaney, that project of undoing “requires a view of current populations as denied genuine agency.” (P. 396.) By contrast, Delaney’s normative approach presumes the existence of agency in colonial and post-colonial contexts and seeks to enhance it.
Delaney finds evidence of coercive constitutionalism’s normative position in Jorge Farinacci-Fernós’s discussion of the 2009 Bolivian constitution. According to Farinacci-Fernós, the Indigenous population’s extensive participation in the Bolivian constitutional drafting process “carried enormous weight”, which was reflected in the substance of the constitution. (Jorge Farinacci-Fernós, When Social History Becomes a Constitution: The Bolivian Post-Liberal Experiment and the Central Role of History and Intent in Constitutional Adjudication, 47 Sw. L. Rev. 137, 150, quoted at 397.) The Bolivian constitutional order thus facilitated a meaningful exercise of Indigenous popular agency. Yet, features of the Bolivian constitution remain rooted in the colonial legacy of what Farinacci-Fernós calls “modern constitutionalism.” (Id. at 144, quoted at 397.) As a consequence, although the Bolivian reform affirmed the agency of the Indigenous population, it did not eliminate colonial “vestiges” in Bolivia’s constitution that were coercively imposed on that population. (P. 397.)
Delaney has contributed enormously to the field of comparative law by posing her normative question and providing an analytical framework within which it can be answered. I anticipate that scholars will take up the challenge of both answering the question and applying the framework in diverse colonial and post-colonial settings. And I believe that Mapping Power: Constitutionalism and Its Colonial Legacy will emerge as a classic in the field.
Editors note: Reviewers choose what to review without input from Section Editors. Jotwell International Law Section Editor Erin Delaney had no role in the editing of this article.
