Invoking the Nation in Partitioned Lands: Postcolonial Constitutions and Exclusion in Ireland and the Indian Subcontinent

The paper explores the relationship between constitutional representations of the nation and institutional design following the partitions of Ireland and the Indian subcontinent. The constitution-making processes and outcomes in Ireland 1937, India 1950 and Pakistan 1956, together with the Northern Ireland Act 1998, reveal the constitutional centrality of claims to nationhood that extend beyond state borders. The contested lands of NI and Kashmir have shaped the constitutional settlements of independent Ireland, India and Pakistan and the UK’s devolution framework. We investigate how postcolonial constitutions have dealt with the idea of a truncated nationhood and the legacy of armed conflict over contested lands in both foundational and institutional terms. We focus on the interplay of an extra-territorial definition of the nation with questions of territorial autonomy and fundamental rights to explain the impact of partition on constitutional settlements and governmental authority.

Comparative Settler-Colonial Constitutionalism

State formation in settler states has been intertwined with settler-colonialism. Settler-colonialism is not just a matter of the past, but it is a foundational aspect in the settler state. Inspired by TWAIL scholarship, and drawing on the work of theorists of settler-colonialism, this paper examines some aspects of constitutional law in a number of settler states, and explores how settler-colonialism finds expression in the constitutional order. It explores how certain dynamics that are associated with the ‘civilising mission’ and Patrick Wolfe’s ‘logic of elimination’ are facilitated by constitutional and administrative law in settler states. It aims to highlight some common themes about how settler-colonialism shapes the development of constitutional law, and how law, in turn, operates to give effect to the logic of settler-colonialism in the form of establishing and reinforcing the settler nation and dissolving the native population.

Unamendability and Exclusion: Eternity Clauses as a Tool for Majoritarian Constitutional Projects

The scholarship on unamendability generally understands eternity clauses as in essence tied to liberal constitutionalism. Such provisions are typically seen, and to a large extent defended, as tools to entrench commitments to democracy, the rule of law and fundamental rights. Challenging this underlying assumption, this paper claims that even in otherwise liberal constitution-making contexts, eternity clauses can and have been used as tools for entrenching majoritarian values. Taking Romania’s unamendable provision as its starting point, the paper shows how an absolute entrenchment of an official language and of the state as ‘unitary’, ‘national’ and ‘indivisible’ embedded a nationalist constitutional project at the heart of an otherwise liberal-democratic constitution. The Romanian example is not alone and illustrates how eternity clauses can serve to silence reasonable disagreement over fundamental values and to reject rather than pacify competing visions of constitutional identity.

Political Insurance for the Poor: Liberal Constitutionalism and Extreme Inequality

Constitutional directives—normative directives addressed to the state found in several constitutions—range from obliging the state to reduce material inequality, secure universal access to education, promote indigenous culture, protect the environment, and so on. On a conservative count, at least 31 constitutions around the world feature ‘directive principles’ (identified as such). Counts based on the structural features (rather than mere formal labels) find over 140 constitutions with provisions that would qualify. This paper builds upon the nascent scholarship in this area to propose a general theoretical account of constitutional directives. The paper offers a historical, structural and functional account of constitutional directives. Understanding constitutional directives is essential for a proper appreciation of political constitutionalism, especially in several postcolonial jurisdictions—hence the significance of this paper.