Constitutional Reform and Caribbean Political Identity

• Author: Simeon C.R. McIntosh
• Profession: Professor Emeritus of Law at Howard University, Washington, DC
• Pages: 51-225

Chapter 1

Constitutional Reform and

Caribbean Political Identity

The Question of Origin

The story of origin of West Indian Independence Constitutions,

briefly sketched in the Introduction, is very much a critical aspect

of the story of Commonwealth Caribbean political identity. Not

only did our constitutions come from Britain, as is evident in the

fundamental design of our political institutions, but we have, we

believe, for the most part, remained ‘constitutional monarchies’,

with the British monarch serving as our head of state. On the

understanding that she remains our queen, we continue to

pledge allegiance to her. This, in essence, is the story we continue

to tell about ourselves. In other words, the story of origin of our

Independence Constitutions, plus the British monarch’s contin-

uing presence in the Commonwealth Caribbean political order,

continues to foster our central notions of collective identity. In a

most critical sense, therefore, West Indian Independence Constitu-

tions remain our most prominent attempt at self-definition. They

are our principal political texts. And, by ‘accepting’ or ‘adopting’

them as our own, we purport to share their conceptions of the

world and human nature; to adopt their categories of speech,

thought and action; to accept their definition of us as to the kind

of people we are and wish to be.1

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Introduction

But the critical historical truth that ‘our constitutions came

from Britain’, that the ‘originating consciousness’ behind the

production of our constitutional texts was not our own, should

make compelling our ambition for a rational reconstruction of a

coherent constitutional narrative that would give expression to a

vision of ourselves as a sovereign people, no longer in any way

subject or subordinate to British sovereignty. In this regard, the

current project of constitutional reform, now underway in several

countries,2presents the most auspicious occasion for a ‘new’

beginning, for the possible construction of a new ‘story of origin’.

This exercise in constitutional reform must therefore be the occa-

sion for a critical reassessment of our Independence Constitu-

tions and constitutional practices, with a view to correcting and

removing, once and for all, some of the more critical errors from

our constitutional jurisprudence. This would necessarily engage

us in the central interpretive task of rethinking the dominant,

influential role of the British constitution on our constitutional

design and practices. In other words, essential questions, such as

the way in which our constitutions should be re-designed in order

to better secure their essential purposes in our collective life;

whether the British constitution with its mixture of hereditary

and republican elements, and its central, organizing principle of

parliamentary sovereignty, is the appropriate model of gover-

nance, should be engaged. But, above all, constitutional reform

should be the occasion for a discursive engagement of the Carib-

bean citizenry on some of the larger questions of constitutional

democratic governance: questions, for example, concerning the

very process of constitutional founding; the amendment process;

issues about presidential versus parliamentary democracy; pro-

portional representation versus single-member districts; unicam-

eralism versus bicameralism; legislative supremacy versus judicial

review and, above all, the question whether the Caribbean should

establish its own final Court of Appeal. The current undertaking

CARIBBEAN CONSTITUTIONAL REFORM

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of constitutional reform offers an auspicious occasion for philo-

sophical reflection on our constitutional tradition and on the pos-

sibility of redefining our political and civic identity, thus

removing it from the shadow of a dominant English theoretical

perspective.

This chapter attempts to address some of these issues. For

convenience, some of the ‘terms of reference’ of the Barbados

Constitution Review Commission are mainly referred to, given

that they address, by and large, the salient issues which must be

addressed by the region as a whole. But the question of constitu-

tional reform must be addressed within a broader constitutional

theory of founding and amendability; a sketch of that theory is

here immediately expressed.

Towards a Constitutional Theory

of Founding and Amendability

In a democratic society, the constitution – constitutional law – is

foundational: it concerns the most basic arrangements of political

power in the community and establishes the ultimate ground for

the legitimate exercise of political power by some over the rest of

the society. It is the defining institution of political society. On

this view, the constitution is constitutive of collective life, and it

is for this very reason that the democratic founding of a constitu-

tion – the giving of form to collective life – is reckoned amongst

the most notable acts of which political man is capable.

According to Professor Sheldon Wolin, the founding of a consti-

tution is superior to other types of political acts because it aims to

shape the lives of citizens by designing the structure or ‘dwelling’

which they and their posterity will inhabit.3

Constitutional founding is therefore a defining act of collect-

ive and political identity. The truth of this proposition has been

borne out in the act of founding on the American continent over

two hundred years ago. When eighteenth-century Americans

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Constitutional Reform and Caribbean Political Identity