Decolonial Constitutionalism

The American Declaration of Independence kindled the first successful decolonial movement in the modern world, culminating in the enactment of the United States Constitution. From colony to sovereign state to Great Power, the United States modeled for subordinated peoples abroad how to launch and win their own battles for sovereignty. Since the end of the Second World War, however, America’s eighteenth-century precedent of revolutionary self-determination is no longer the prevailing path to decolonization. The traditional warmaking toolkit for winning independence—revolution, illegality, and violence—has been replaced by more orderly tactics consonant with the rule of law. Evolution, lawfulness, and continuity are the touchstones in the new global model of decolonial constitutionalism that now lights the path to self-determination.

Decolonial constitutionalism is the use of legal, legitimate, and non-violent means to assert sovereignty, to secure rights, or to achieve recognition for a people, nation, or state that is legally or politically subordinate to domestic or foreign actors. In contrast to the American model of revolutionary self-determination, this new global model of decolonial constitutionalism has pluralized actors and sites of contestation, though the decisive objective of decolonization remains the same. Once won in the theatre of war, decolonization is now prosecuted in parliaments, courts of law, and the public square. The protagonists are no longer soldiers and generals; they are politicians, lawyers, judges, and civil society. Nor does self-determination today necessarily entail establishing a new state in the international order and taking a seat among equals alongside the countries of the world. In our new era of non-violent claims to sovereignty, decolonial movements choose instead to write new constitutions for existing states, to amend enduring constitutions, to enforce treaty rights, to promulgate multilateral agreements, or to pursue analogous courses of disruptive constitutional activity well short of declarations of independence. Decolonial constitutionalism therefore refers to a suite of strategies to exercise self-determination, defined expansively to comprise a broad scope of decolonial objectives consistent with the rule of law.

In this Article, I introduce, illustrate, and theorize decolonial constitutionalism as the modern form of self-determination. Drawing from historical and modern decolonial movements, I show how subordinated peoples have seized the levers of law and politics to innovate new paths to self-determination without taking up arms, in the process showing similarly situated peoples how to achieve their own goals of independence, nationhood, or constitution-making in a manner that reinforces rather than undermines the rule of law. These strategies have proven ultimately more productive for decolonial movements to free their peoples from bondage in law or politics, to attract ideologically aligned partners at home and abroad, and to more effectively communicate to internal and external audiences the moral legitimacy of their claims to self-determination.