Our collective legal consciousness connects the rise of Constitutions in the late 18th century to the fight for limiting the power of government, to the establishment of liberal democracies, and to the embedding of individual rights into the core of political systems. This view, which has been advanced by scholars such as Reference Fiorovanti and NeiraFioravanti (2001) and many others, is perhaps based more on a romantic interpretation of history than on actual historical facts. In her new book, historian Linda Colley presents a radically different approach. Her main argument is that Constitutions emerged as a consequence of hybrid warfare, that is, wars that, for the first time in history, involved intense, large-scale conflicts on both land and sea. These massive conflicts drastically increased the costs of war and pushed States to reconfigure political pacts with their respective societies. For the first time, military conflicts were almost global in scale, and their magnitude destroyed the existing political order. Political leaders around the globe needed new justification to raise funds and draft male soldiers to face these challenges. Constitutions—understood in Colley's work in a broad sense, so as to encompass all foundational documents that organize the distribution of power within a territory —served as vital pieces of innovative political technology that gave states legitimacy to impose significant sacrifices on their societies.
This quid pro quo helps explain why this first wave of Constitutions expanded suffrage only to men with property. These were the men that States wanted to tax or conscript; it was their support they were looking for. There was no need to grant rights to women or landless men—the perception was that they did not contribute to the war effort and thus should not have a say on the rules of the game. This is why the few experiments that granted suffrage to women before WWI were either distant islands far from any imperial power (such as Pitcairn, the Cook Islands, New Zealand or Australia), or, in the case of the United States, distant territories that were also somewhat safe from the imminent threat of war (Wyoming, Utah, Colorado e Idaho). The relative peace of such places allowed states to engage in more diverse constitutional experiments. The expansion of suffrage to women after WWI is also connected to the changing perception about the role women actually played in warfare.
The focus on warfare as an engine for state building is not necessarily a new Reference Tillyargument—Tilly's work (1990, Reference Tilly, Evans, Rueschemeyer and Skocpol1985) is the best example; contemporary academics such as Reference MacmillanMacMillan (2020) also underscore the central role wars had in configuring and reconfiguring political orders. But Colley adds a new layer to this argument. The logical consequence of the argument that Constitutions were part of a military strategy of preparation for war is that the emergence of Constitutions was by definition a global endeavor. In fact, the military conflicts that emerged in the second half of the 18th century were distinct not only because they were hybrid in nature, but also because they were global. If wars became global during this period, so did Constitutions, as they were the main political instrument used by states to prepare for war. Colley thereby uniquely disrupts the centrality often afforded the United States' own constitutional development. The gathering in Philadelphia in the late 1780s, too often mythologized as the foundation of a totally new form of government, is repositioned as only one among many constitutional experiments, often mirroring European political developments.
This reasoning leads Colley to analyze the international facet of 18th century constitutionalism. Whereas Constitutions internally forged new socio-political pacts, externally they served to physically and symbolically “mark territory”: these documents signaled to the rest of the world that a new nation had been born—and that it had its own institutions, borders and armed forces to protect them. That is why many political leaders engaged in a deliberate political effort to translate and publicize their Constitutions. This points to the role of Constitutions as instruments of political communication. This was the case in many countries, but most evidently in Norway, where a Constitution was drafted and enacted in less than 5 weeks in 1814, under the shadow of imminent invasion by Sweden.
Here, Colley adds another thick layer to the previous collective view about Constitutional processes. She goes far beyond any previous work in terms of providing a wealth of case studies and details to back up and build on her observations. Detailed historic narratives range widely in her book. To cite a few examples: in Tunisia, the 1861 Qânun al-Dawla Al Tunisyya (the “laws of the Tunisian state or dynasty”), like other constitutions, was “an act of calculated repositioning and defensive modernization” (p. 310) which simultaneously made clear the powers of the monarch, granted certain privileges to male citizens and presented Tunisia to the world as a modern Muslim state. In Russia, in the second half of the 18th century, Catharine II used the Nakaz as a way to establish the legitimacy of her leadership and to protect her empire from the constant threats of conflict that surrounded her. The Nakaz' preamble encompasses this double role. It simultaneously posits that “The sovereign is absolute, for no other than absolute powers vested in one person can be suitable to the extent of so vast an empire” and that “The equality of citizens consists in their being all subject to the same laws” (p. 73). In France, the state of insolvency after the 7 years War forced the Crown to call on the Estates General to institute new forms of taxation. This Assembly had not been summoned for nearly 200 years, and its convening paved the way for other discussions beyond tax increases. In other words, raising the issue of new taxes paved the way for deeper changes beyond fiscal issues.
Colley ends her comprehensive treatise on constitutional history with a final provocation. The history of Constitutions is not necessarily a history of success: in 1991, only 20 of the world's 167 Constitutions had been implemented before 1950. So, she closes by asking why should States and societies invest their time, energy and imagination in an endeavor that seems to come with relatively short expiration dates. Her answer here points to the infinite number of possibilities that are opened via Constitutions: countries can use them to consolidate any number of possible covenants between states and societies to pursue their most ambitious goals, and should therefore be seen as viable instruments of hope and of change.
Colley's work expands our imagination and our cognitive frameworks about what Constitutions are and about what role they have played in history. For this reason and others, this text should be mandatory reading in any course on legal history.
