“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness”.
It is not a quote from the appeal of CC (Coordinating Council of Russian Opposition) to Russian opposition; these words are almost two and a half centuries: this is the preamble of the Declaration of Independence of the United States of America that opened wide the doors to the epoch of revolutions and constitutions. I think these words are still relevant for Russia.
Russian public thought has lost its way in broad daylight among The State, The Revolution and The Constitution.
The liberals desire to have a constitutional state, but they are afraid of revolution, justly believing that they will be the first who will be wiped off the face of the earth. The conservatives want to prevent a revolution at any cost, but they have to sacrifice the constitution for the sake of consolidation of a repressive police state what will lead the country to a revolution sooner or later. Hopeless radicals from both parts suggest burning the hateful country (left-wing) and the harmful constitution right-wing in the fire of revolution not to beat the brains anymore. Being unable to solve this problem, our civil society has fallen into a stupor and it is watching in horror the country plunge into chaos.
However it is possible to get out of this magic political forest only if it will be admitted that the aim of revolution is formation of a new state rather than destruction of the old one. The revolution is not only a destroying might, but also an enormous creating power. All the greatest constitutional states appeared as the result of the same great national revolutions during which an inhabitant and a partial subject had become a citizen. Russian proverb says that it is impossible to pull a fish out of the pond without difficulty (“No pain, no gain”; “No sweet without sweat”). New state won’t appear without great effort of will, revolutionary rise and ecstasy, i.e. everything that was implied by Lev Gumilev in term “passionarnost”. The constitutional national statehood cannot be “tortured” on paper, cannot be “outspoken” in selfless speeches. Either it will be born in violent struggle or it will become a one more great Russian utopia.
“Constitutional majority” between chaos and terror
For a quarter of a century Russia has passed a flowery way from a naïve democracy of "90s" with their unsystematic "anarchic constitutionalism" through a sovereign democracy of the “2000s” with their scenic constitutional democracy to the "2010s" with their unconcealed unconstitutionality.
Gradual, but steadfast squeeze of constitutionalism has become the main trend of the epoch. Since Vladimir Putin has come to power, Russia experienced several consecutive constitutional reforms, which ultimately became the main content of his political course.
The first and the most significant constitutional counter reform was the judicial counter reform of 2000-2002 the result of which was the construction of judicial hierarchy. During this counter reform the activity of courts was brought under control of the Presidential Executive Office, the activity of the judges was brought under control of the chief justices. The legislation was amended in the way that the competitive nature of judicial proceedings was practically invalidated.
The second and, probably, of the second importance constitutional counter reform was the media counter reform of 2001-2003 during which all main electronic and print mass media were taken under control (as a rule, by means of passing them to the ownership of affiliated with the government companies). Due to the factual establishment of indirect censorship and measures directed to limit the rights of the editors informational policy of the mass media stopped being independent.
The final chord was properly the political counter reform of 2004-2005 provoked by “orange” revolutions in the postsoviet area within the framework of which, in particular, the electoral system was “sterilized” and a pseudo imperial “single-channel” system of the governance of the state was built.
Nowadays Russia is representing a country where the government is irremovable; the separation of powers is absent; the functions of the Parliament are reduced to decorative ones; the has become an appendix of almighty bureaucracy; the federalism is not more than a façade hiding the imperial vertical; the political and economic pluralism are confined (restricted) and even the temporal (secular) nature of the state is prejudiced.
In a paradox way this evident regress of the constitutional practice is contrasting with the progress of the constitutional conscious which is more noticed if the evolution of Russian constitutionalism is considered (examined, taken up) not in the limited period of last 25 years, but in the retrospective of the whole Russian history.
For two and a half centuries Russian constitutionalism has passed the way from an absolute rejection of the constitutional idea in general through its admission in an especially perverted way (“soviet constitutionalism”), when all the principles forming true content of the constitutionalism were outlawed — to a “dualistic” postcommunist constitutionalism admitting constitutional principles in theory, but denying them in practice.
This contradiction between the ideology and practice of Russian constitutionalism cannot eternally exist and sooner or later it has to be resolved in one of the two possible ways: either by the reinstatement of totalitarian ideological control of the authorities over the society (what is unlikely, but probable to happen) or by the implementation of the amplitudinous constitutional reform (what is possible, but it seems unlikely yet). However, I continue to keep discreet historical optimism about this matter, focused on the distant future though.
There is a reason to believe that for two and a half centuries the silent constitutional majority has been formed in Russia, which is not taking an active part in political life, but in general, is oriented to the constitutional values. To my mind, this is the fundamental difference between the political situation in Russia at the beginning of the XXI century from the situation at the beginning of XX century, when the society was dominated by "unconstitutional majority." I think that it was a symbolic experiment on introduction “religious education” in schools when parents were allowed to choose the "course", which showed that the majority of the population was in favor of maintaining the secular character of the state.
Within some years it has become a trend to tear to pieces the inert Russian mass (not without reason). However, the question is how “inert” or, on the contrary, how “imbued” with particular ideas it really is? I dare to suppose that this mass is not as neutral, that 100 years lived by Russia hasn’t passed in vain and that most of the people are already “incurably” infected by the virus of the constitutionalism. A different matter is that this “decease” is taking its latent course inasmuch as the Russian constitutionalism has not passed its “incubation period” yet and doesn’t show declare itself in everyday life. It seems that the same man (muzhik, moujik) is living in Russia as in the ever-memorable "seventeenth year", but if you dig deeper – everything is different.
Since the time of Saltykov-Schedrin the Russian average man has got spoiled. Previously, he desired, rather uncertainly, either the constitution or the sturgeon with horseradish; now he unambiguously wants both the constitution and the sturgeon without the horseradish, if it is possible.
It means that newly-brought to light latent constitutional majority wants both the powerful state and the protection of their rights at the same time. But there is practically nothing that can satisfy these increased political requirements. A new constitutional demand comes up against an almost complete lack of a decent offer. There is nothing to choose for an average man, indeed (maybe, that’s why he is so wholly indifferent about the elections…).
The power of today offers a strong state to the constitutional majority, where there is only a flavoring left among three ingredients named by the great satirist. The government opponents are not getting on better: some of them (marginal traditionalists) hysterically glorify the sturgeon forgetting about the constitution; the others (marginal liberals) speak about the constitution as the desired sturgeon. In reality, people are asked either to preserve the old hateful world or destroy it again to the ground, without any real explanation what it will be replaced by. The constitutional state is still nothing more than a figure of speech. Naturally, in the society, tired of speeches, this figure is paying no one’s attention. The constitutional majority has frozen, caught between the hammer of terror and the anvil of chaos.
This constitutional majority doesn’t accept neither the imperial model in its both (soviet and pre-soviet) hypostases nor the anarchic democracy of the 90s, associated with the unequal privatization and the destruction of the country. The efforts of the various "political minorities" are still focused either on the defense of the existing order or on its criticism, while the majority is waiting with patience when the clear and specific "positive image" of the future is finally presented.
“Constitutional State” between violence and powerlessness
Not minimizing the importance of "total delegitimization of the regime" (the expression by Yulia Latynina), I believe that it is impossible to set the "inertial mass" in motion only with the help of the criticism of the existing system. People don’t tend to say goodbye to the old world before they can clearly see the prototype of the new one. The new state, which contours we need to clearly delineate, must be put in place of the old imperial one. Otherwise, all the efforts to "delegitimize" will only lead to the growing chaos.
It is well known that Russia has two problems – the fools, wandering back up the road to the lost past, and the fools, running down the road to an unrealizable future. The Empire has exhausted itself, and the attempts to restore it are doomed to failure. The "Putin Doctrine", which is aimed to reconstruct the "small USSR”, is a huge historical bubble that is doomed sooner or later to burst, uttering a dreadful and obscene sound. But this does not mean that a state, not the "cloud in trousers”, will appear in the place of the bankrupt empire. The more deafening collapse of the empire will be, the more stringent should be its successor state, as its first and main task will be to restore and maintain the order.
The mistake of Russian constitutionalists consists in the fact that they offered the concept of an independent state when the society was waiting for the concept of a strong and independent state. Subconsciously people feel that Russia needs such a state that will be able to maintain the order on the level that was never kept before in its history. If you take a deep look back to Russian history, as far as the eye could see, there are unrestrained thievery and wild arbitrariness. Only a blind man can deny that Russia needs a real “steady hand”. People are wondering why the constitutionalists will succeed even though no one succeeded.
However, every time they speak about the “steady hand”, the liberal ladies fall down in a faint and the liberal gentlemen take their handkerchiefs out of their pockets. For some reason, it is a priori assumed that a steady hand in Russia can only be dirty and shaggy. At the same time few people are engrossed in thoughts that in the world it is difficult to find a more rigid social system than the western constitutional democracy in which the citizen is clamped to the laws, as in a vice. The European freedom is tunnels in the mine where smooth motion is possible only in a strictly specified destination. The Russian "dictatorship" is a "wild field" where you can walk, as you like, until you crush.
For a Russian man, used to life in terms of the “contractual state” where any question whether it’s a penalty for violation of traffic rules or the promotion “out of term” can be settled up despite of any rules or establishments, it is difficult even to imagine which challenges he might probably face in the constitutional state. Real democracy in a certain sense of the word is the worst of dictatorships. It is the “iron hands” enveloped in law.
The Putin's regime is accused of its rigidity and even cruelty. But rigidity is not a disadvantage itself. It is possible that in the future when this regime will cease to exist, even more stringent than today measures will be required to maintain the order. In fact, today the state demands law compliance only of their political opponents, and then it will expect compliance of everyone. Does the victory of constitutionalism mean that the manifestations can be held anywhere, anytime? Does the victory of democracy mean that it is allowed to throw stones at police? Is it indeed no surveillance on citizens in the liberal society? For these and thousands of questions like that, there is only a negative answer. "Limonov" will not become "Orange" under the new regime and Mayakovsky Square won’t be rented. But in order to be rigid and even cruel, it is necessary to have a moral and legal right, or, simply, to be legitimate.
After December 2011 the Kremlin time and again refers to the "European" experience, apologizing for the "repressive" laws and practices. It is certainly right that the similar legislation in the West is even tougher than in Russia. And this is not surprising, because any powers, "if it is worth anything," must be able to defend themselves and to achieve the compliance of their laws. But the constitutional violence is justified only to the extent that the power which applies it is removable, separated, secular etc. Unfortunately, the constitutional state does not cease to be a police state. The only difference is that in this country the public is provided an opportunity to influence the government through free elections and other constitutional mechanisms, so violence is used in the public interest and not in the interests of the minority to usurp the power.
The opposition, if it seriously intends to claim to power, has to prove not only its ability to protect the rights and freedoms (that goes without saying), but its capacity of the "positive" state-building. Firstly, it must prove that it can provide a new order and justice. Ultimately, the Bolsheviks won not because of their fierce criticism of the tsarist regime - it was better made by the bourgeois intelligentsia. They won because they proposed the concept of the new state (though it was utopian), in which the masses had believed. People should know that, firstly, there is the power able to govern the country better than the current government and, secondly (as a bonus), capable to provide with an acceptable level of human rights. Only then the "constitutional majority" will show itself and will vote in favor of the "constitutional state".
Constitutional right to revolt
The Modern Russian state, for more than 20 years existing only due to the force of historical inertia, not presenting a state in the strict sense of the word, but representing a fragment of the once mighty empire, rapidly burning out in the dense layers of the modern history, has become the main obstacle on the way to the rise of the constitutional state in Russia. It protects itself with the restraint, aimed at taking the Russian society to the grave. The expectations of peaceful, nonviolent way out the confrontation between a dying past and newly-brought to light social order are dwindling every day, starting from September 24, 2011.
This is that very situation that was described by the American federalists, who justified the constitutional right of people to revolt. The revolution is always an evil in the sense that it is connected with all the greatest trials and upheavals of people. But under certain circumstances it is indispensable evil what means it is welfare. Russia embarks the path of the epoch of the “permanent revolution”, in other words the epoch which can last the decades, but in its agenda there will always be the only question – the fight against the revolution.
This era will produce the corresponding characters, the prototype of which, apparently, is Alexei Navalny. They become by definition the destroyers and terminators, maniacally aimed at a riot. These are the laws of the genre: when you have to storm the fortress, the production battering-rams is increasing. But the rebels will win only if they become true statesmen and convince others that they can not only break the mills, but also build them.
When the revolutionaries will come to power (no matter when), they will have no choice as to become "arсh-statesmen" that would strictly and consistently establish a new order.
And it is very important this new order to be constitutional. That’s why today the society should have a coordinated plan of state-building, which won’t allow "the gravediggers of Empire" to send the locomotive of Russian history at a standstill again.
It is time to get to work, the “time of reaction” should not be spent in vain because this is the very epoch that could and should establish a constitutional soft for the future builders of the Russian state. The right to revolt is one of the fundamental constitutional rights, but of only those who offer something new to replace the effaceable old.
Novaya Gazeta expresses thanks to Daria Zhelnina for translation assistance