by Dieter Grimm whereby ‘the members of a polity develop a communal spirit and a
collective identity that differentiates them from other polities’.
(^59) As a theoretical
explanation of the transition from people to citizens, this way of understanding a
constitution may be losing its appeal, in a world in which the aspiration for democracy
and human rights increasingly is shared.^60 This dimension of the constitutional
function nevertheless has practical importance in societies that lack the cohesive
forces of ethnicity, language and religion, which also are a feature of our times. It
bears a greater burden still in societies with deep internal divisions that provide a
source of tension that threaten the continued viability of the state.^61 In contemporary
practice it is reinforced by the emphasis on the need for an inclusive process of
constitution-making, as a means of developing and strengthening the cohesion of
members of the polity as citizens of the state.^62
Lack of consistency in the literature in the use of these and related terms makes
some additional observations necessary. First, they refer here to the functions of
constitutions as forces that compete with those of internationalisation. They do not
assume the outcome of this competition or describe the characteristics of consti-
tutions. These terms thus should be distinguished from, for example, particularism
or exceptionalism, insofar as these claim national constitutional difference or
imply that it must always be so. I note in passing that expressivism may be used
also in a methodological sense, to encapsulate the way in which constitutional
comparison can enable self-understanding, in the light of practice elsewhere.
63
Again, that is not the sense in which I use it here, although there is some synergy
between the two.
Second, the expressivist function is achieved in a variety of ways. The most
obvious is through use of a constitutional preamble to recite shared history, identify
shared values and expound shared goals.^64 Thus in this volume the chapter on
India identifies the preamble as embodying the framers’ ‘vision of “wiping every
tear from every eye”’.^65 But expressivism is a function of the whole constitution that
may be manifested in, for example, the selection and composition of institutions,
(^59) Dieter Grimm, ‘Integration by constitution’ ( 2005 ) 3 International Journal of Constitu-
tional Law 193 at 193.
(^60) Mattias Mahlmann, ‘Constitutional identity and the politics of homogeneity’ ( 2005 ) 6
German Law Journal 307.
(^61) Sujit Choudhry, ‘Old imperial dilemmas and the new nation-building: constitutive consti-
tutional politics in multinational polities’ ( 2005 ) 37 Connecticut Law Review 933.
(^62) Vivian Hart, ‘Democratic constitution making’ ( 2003 ) Special Report 107 United States
Institute of Peace 3.
(^63) Tushnet, ‘The possibilities of comparative constitutional law’, at 1307 – 8 ; Tushnet,Weak
Courts, Strong Rights,atp. 12.
(^64) Liav Orgad, ‘The preamble in constitutional interpretation’ ( 2010 ) 8 International Journal
of Constitutional Law 714 at 731 – 7.
(^65) Surya Deva, ‘The Indian constitution in the twenty-first century: the continuing quest for
empowerment, good governance and sustainability’,Chapter 15 of this volume.