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Constitutional Mobilization Washington University Global Studies Law Review Volume 17 Issue 1 2018 Constitutional Mobilization Bui Ngoc Son Senior Research Fellow, Centre for Asian Legal Studies, National University of Singapore Faculty of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_globalstudies Part of the Chinese Studies Commons, Comparative and Foreign Law Commons, and the Constitutional Law Commons Recommended Citation Bui Ngoc Son, Constitutional Mobilization, 17 WASH. U. GLOBAL STUD. L. REV. 113 (2018), https://openscholarship.wustl.edu/law_globalstudies/vol17/iss1/7 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Global Studies Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Washington University Global Studies Law Review VOLUME 17 NUMBER 1 2018 CONSTITUTIONAL MOBILIZATION • BUI NGOC SON ABSTRACT People around the world are mobilizing for constitutional change. This global phenomenon has been underexplored in comparative constitutional studies. This Article introduces the concept of constitutional mobilization, theorizes about it, and offers an original, empirical case-study. First, it develops a general theoretical framework defined by the following key concepts. Constitutional mobilization is the process by which social actors employ constitutional norms and discourses to advocate for constitutional change. Constitutional opportunity refers to the general political and constitutional environment in which constitutional mobilization operates, and particular political and constitutional processes that provoke constitutional mobilization. Constitutional framing concerns identifying constitutional problems and proposing constitutional solutions, the process of which involves invocation of constitutional language, ideas, norms, or symbols presented in national constitutions, transnational constitutional law, and international law. Constitutional resources take the form of state actors who play the influential role in constitutional change. • Senior Research Fellow, Centre for Asian Legal Studies, National University of Singapore Faculty of Law; PhD, The University of Hong Kong (2013). I greatly appreciate the support of the Centre for Asian Legal Studies. For their helpful comments, I am grateful to Rosalind Dixon, Tom Ginsburg, David Law, Trang (Mae) Nguyen, Mark Tushnet, and participants of the University of New South Wales Faculty of Law’s Comparative Constitutional Amendment Workshop, Konrad Adenauer Stiftung’s Second Workshop on Constitutionalism in Asia, and Korean Association of Constitutional Law’s International Conference 30 June Democracy Movement: Democratization and Constitution in East Asia. 113 Washington University Open Scholarship 114 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 17:113 And finally, constitutional change is understood as a multiple concept, which includes three types of change, namely revolutionary, reformative, and cultural. Second, this article develops a contextual theory to answer this question: under what conditions, how and why do social actors mobilize for constitutional change in authoritarian regime? The theory holds that, in an authoritarian regime, social actors seize the opportunity presented by constitution-making process to mobilize the public and also political leaders to engage in a popular, national constitutional dialogue, which results in reformative and cultural constitutional changes. Third, on that theoretical ground, this Article offers a case-study of Vietnam. This case-study has implications for China, which, like Vietnam, is also governed by a communist regime. However, as this article will demonstrate, China also presents significant constitutional divergences from Vietnam. More generally, this Article proposes establishing constitutional mobilization as a new area of empirical comparative constitutional inquiry based on case-studies exploration and contextual theorization. https://openscholarship.wustl.edu/law_globalstudies/vol17/iss1/7 2018] CONSTITUTIONAL MOBILIZATION 115 INTRODUCTION ............................................................................................. 116 I. CONSTITUTIONAL MOBILIZATION: A LACUNA IN COMPARATIVE CONSTITUTIONAL SCHOLARSHIP ................................................................... 119 II. A GENERAL THEORETICAL FRAMEWORK .................................................... 123 A. CONSTITUTIONAL MOBILIZATION. ................................................ 123 B. CONSTITUTIONAL OPPORTUNITY.................................................. 124 C. CONSTITUTIONAL FRAMING........................................................ 125 D. CONSTITUTIONAL RESOURCES. .................................................... 128 E. CONSTITUTIONAL CHANGE. ........................................................ 130 III. A DIALOGICAL THEORY OF CONSTITUTIONAL MOBILIZATION ................... 132 A. DIALOGICAL OPPORTUNITY. ....................................................... 134 B. DIALOGICAL FRAME.................................................................. 135 C. DIALOGICAL RESOURCE ............................................................. 136 D. DIALOGICAL CONSTITUTIONAL CHANGE. ........................................ 137 PART IV. EXPLORATORY DESCRIPTION ........................................................... 137 A. BACKGROUND......................................................................... 137 B. PETITION 72. ......................................................................... 138 C. “LET’S DRAW UP THE CONSTITUTION.” ......................................... 139 D. PETITION OF THE ALUMNI OF THE HANOI LAW UNIVERSITY ................ 145 E. “DECLARATION OF FREE CITIZENS.”.............................................. 147 F. THE LETTER OF CATHOLIC BISHOPS' CONFERENCE OF VIETNAM. .......... 151 G. THE CIVIL SOCIETY’S THREE PETITIONS .......................................... 155 PART V. EXPLANATORY ANALYSIS.................................................................. 164 A. CONSTITUTIONAL OPPORTUNITY.................................................. 165 B. CONSTITUTIONAL FRAME. .......................................................... 167 C. CONSTITUTIONAL RESOURCE ...................................................... 170 D. DIALOGICAL CONSTITUTIONAL CHANGE. ........................................ 171 1. Constitutional Dialogue. ................................................. 171 2. The Failure of Revolutionary Change. .............................. 174 3. Reformative Constitutional Change. ................................ 175 4. Cultural Constitutional Change. ...................................... 177 VI. CONCLUSION ............................................................................................ 178 Washington University Open Scholarship 116 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 17:113 INTRODUCTION Comparative constitutional scholarship has been dominated by the questions of how courts are structured and how they shape constitutional law. However, constitutional development is also driven by and responds to social mobilization. Several American scholars have accounted for the effects of social movements on constitutional law in the United States.1 Like in the United States, people around the world are mobilizing for social change, including constitutional change.2 Unfortunately, the emerging discipline of comparative constitutional law3 has largely neglected constitutional mobilization. This Article introduces this phenomenon and concept, theorizes about it, and offers an original case-study. First, this Article develops a general theoretical framework defined by the following key concepts. Constitutional mobilization is the process by which social actors employ constitutional norms and discourses to advocate for constitutional change. Constitutional opportunity refers to the general political and constitutional environments in which constitutional mobilization operates and to the particular political and constitutional processes that provoke constitutional mobilization. Constitutional framing concerns the process of identifying constitutional problems and proposing constitutional solutions and involves invocation of constitutional language, ideas, norms, or symbols presented in national constitutions, transnational constitutional law, and international law. Constitutional resource takes the form of state actors who play the influential role in constitutional change. Constitutional change is understood as multiple concepts which include three types of change: revolutionary, reformative, and cultural. 1 Mark Tushnet, Social Movements and the Constitution, in THE OXFORD HANDBOOK OF THE U.S. CONSTITUTION 241 (Mark Tushnet, et al eds., 2015); Douglas NeJaime, Constitutional Change, Courts, and Social Movements, 111 MICH. L. REV. 877, (2013); JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD (2011); Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA, 94 CALIF. L. REV. 1323 (2006) [hereinafter Siegel, Constitutional Culture]; Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. PA. L. REV. 297 (2001) [hereinafter Siegel, Text in Context]; William N. Eskridge, Jr., Channeling: Identity-Based
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