Is there any safe and effective way to completely replace a constitution?

                

In countries all over the world, populations regularly amend or even replace their constitutions. But complete overhaul is almost never a simple trick, and in some places -- like here in the U.S., where substantial alterations seem to me to be desperately needed -- even minor amendments are almost impossible to enact.

 

Joshua Braver's new book, We, the Mediated People: Popular Constitution-Making in Contemporary South America (OUP, 2023) provides a sort of manual (one might even call it a hornbook!) for achieving such transformations. Braver, a faculty member at the University of Wisconsin Law School, argues that a successful process will likely involve illegality, but it should never be allowed to devolve into complete lawlessness. Getting what Braver calls "Extraordinary Adaptation" right is tricky. But failure can bring utter chaos, civil war, or totalitarian dictatorship. (Or numerous attempts may result in no changes at all.) The book also contains thoughtful discussions of the views of Hobbes, Sieyes, Schmitt, and Arendt on these matters.

I review Braver's valuable contribution to the literature on constituent power and constitutional change here.

Some Striking Things That Franz Neumann Wrote in 1935

I have posted quite a bit about Carl Schmitt here. Somewhat less about Hans Kelsen, but at least something. However, I may not have written a single word to date about my favorite Weimar era scholar, Franz Neumann. 

A few days ago, I posted some extracts from a 1935 work of his on the rule if law in my Substack (which I mostly use for the purpose of directing people here). So, for the sake of providing a shuttle in the other direction for once, I now link those timely Neumann remarks: they can be found here. 

But I also want to add a coda. After hearing a rather McCarthyite speech by a too-familiar leader at Mt. Rushmore the other day, I find myself prompted to add this: 

It's interesting to me that and why the 1935 German volk didn't have the same antipathy to the word "socialism." This is in spite of the fact that the treatment of corporations by the National Socialist party was quite similar to their treatment by the U.S. Republican Party today (deregulate, untax, and fleece/solicit bribes). Nevertheless it's much more useful to current U.S. "leadership" for socialism to be seen as an evil idea than it was in Weimar. The main goal is the same: to make sure that there is no unified opposition to the particular type of leadership held by those in power. But because of the absence of the same sort of "other" to fear and loathe in the U.S. today (the country is wildly diverse in race, religion, ethnicity, etc.), it's important here for income/wealth/class not to be perceived as a possible basis for unified opposition. Taking "socialism" as a horrific plan to eliminate all property rights is helpful in keeping the populace in line with Republicanism, whatever their income level. Again, because of a largely non-diverse citizenry, in spite of goals nearly identical to MAGA's, that fear wasn't necessary to retain support in Weimar Germany.