A while ago, I was in Philadelphia, birthplace of the American Constitution. Traces of this foundation of U.S. democracy can be found everywhere in the city. It contains "America's most historical square mile" with, of course, Liberty Bell, and many other sites and symbols related to the creation of this most important of American legal documents.
I also visited the newly opened National Constitution Center. For a European, the passion and pride expressed in the presentations and exhibits, and the clear respect and even awe of the visitors for their constitution may seem somewhat exaggerated. It is easy to be cynical when knowing about the wide gap between theory and practice of the legitimacy of current American international politics and the utter chaos and political haggling with which the EU Consitution is more or less taking shape. However, even then, there is also something very pure and inspiring in the - ideal - such a constitution represents. It is the DNA of society, as it were, with a few bytes of information powerfully governing countless at the time of its formulation often unimaginable behaviours. Even though this text was produced by a few white established men over 200 years ago, the Constitution still powerfully shapes and guides the currently so vastly more complex laws - and values - of American society.
This brings me to the idea of constitutional norms. Everybody agrees that norms are essential social constructs in regulating community behavior. Communities start with simple norms, that gradually grow into complex webs as the community matures. However, how about constitutional norms? Are there initial sets of norms that will help a community grow in a certain direction? What would they look like? What would they govern? How can they be instilled? How generic or specific must they be to ensure both enough freedom and sufficient guidance? What can be learnt from hundreds of years of constitutional law?
Many of these norms are implicit and unique to a particular community. There is no standard constitutional recipe that will satisfy every community. As Alexis de Tocqueville, astute observer of laws and society, already said in his classic Democracy in America:
My aim has been to show, by the example of America, that laws, and especially manners, may exist that will allow a democratic people to remain free. But I am very far from thinking that we ought to follow the example of American democracy, and copy the means which it has employed to attain its ends; for I am well aware of the influence which the nature of a country and its political precedents exercise upon a constitution; and I should regard it as a great misfortune for mankind if liberty were to exist all over the world under the same forms. (de Tocqueville, 2000,1835, p.381)
As de Tocqueville did in the early 1800s, we need people willing to immerse themselves in the ways of the world of (virtual) communities and describe and contrast them with each other, fully realizing that prescribing a recipe that has proven life-saving in one patient, may be lethal to another one...
- A. de Tocqueville (2000,1835). Democracy in America, Bantam Books, New York