Post-Constitutionalism

The modern Constitution was the great invention of the Enlightenment. It was a document that, as stated in Article 16 of the Declaration of the Rights of Man and of the Citizen, would guarantee the rights of people, as well as the separation of powers.

The Constitution was the last nail in the coffin of feudalism, and it was the bourgeoisie who wielded the hammer. But those individual rights dealt with political power, as did the concept of separation of powers. Without a doubt, it was a giant step in the 18th century; however, today it is no longer enough.

Today’s rights have a collective dimension, and they are no longer held only by people. It was recognized that, in addition to the political, there were other powers with greater strength, such as media, economic and the techno-feudal power. The Constitution evolved to address those challenges. But it is no longer enough.

I do not propose the disappearance of this great invention of the human mind. Constitutions must, of course, continue to exist. Instead, it is our constitutional thinking that must change: We are obliged to think about the future and further evolve our constitutions. That is what I mean by the word post-constitutionalism. The fundamental challenge we face is the new great power: techno-feudalism, to which I have dedicated several columns.

This new phenomenon means that wealth is concentrated in but a few hands, as a result of information given to them by billions of people through social networks and applications. In addition, they control the new digital public square, which they manage under commercial criteria; they own the macro-portals in which they buy and sell around the world every day.

Do you want to know who they are? Look for the potentates who attended President Donald Trump's second swearing-in ceremony. This new elite, having displaced the former banking and industrial elite, has global influence. And that signifies economic, social and political change, comparable only to the Industrial Revolution. As we have already discussed in other columns, it denies citizenship and converts human rights into commodified information.

This is the great challenge of post-constitutionalism: to revitalize this great instrument of control, moderation and orientation of power in order to face this global phenomenon. And if you think I'm inventing the challenge and its dimensions, take a look at the encyclical letter, Magnifica Humanitas, by Pope Leo XIV.

To solve this problem, post-constitutionalism must find a way to strengthen the state and political power. The challenge will be not easy, because our constitutionalist DNA goes in the opposite direction: It postulates the weakening of political power to avoid the return of absolutism (for any ideology).

On the other hand, this will require strengthening international cooperation mechanisms to modulate the techno-feudal monster. At this point, we should examine a recent speech by President Xi Jinping, who, in an international meeting about artificial intelligence, called for "a symphony of international cooperation."

If the Constitution was born to control political power, today post-constitutionalism must contain and reorient techno-feudal power.

Let's go! Let's combine our human intelligence to take this gigantic and necessary step.