IN the age of constitutionalism, the claim that the constitution establishes a permanent framework of fundamental law that expresses the regime’s collective identity is vindicated. And with this victory, the tension between the constitution’s instrumental and symbolic functions becomes acute. This issue had been recognized from the outset. When in 1819 Marshall C.J. declared that one must never forget that it is a constitution we are expounding, he put his finger on the problem. If the constitution were to include every detail of governmental powers, procedures, and limits, it could hardly be grasped by the human mind let alone understood by the public. When drafting a constitution, “only its great outlines should be marked, its important objects designated.”1 How, then, is this tension between the need for specificity in regulating government and ambiguity in expressing common values to be resolved? The task, it would appear, is one for the delicate arts of interpretation.
Marshall had identified the problem but had little to offer by way of a solution. Acknowledging that the US Constitution is “intended to endure for ages to come,” he recognized that it must be able to adapt “to the various crises of human affairs.” He therefore accepted that although the powers of government are strictly limited, some discretion over their execution must be permitted provided their exercise is consistent with “the letter and spirit of the Constitution.”2 Yet only a few years later, emphasizing that courts are “the mere instruments of the law,” he had apparently resiled from this flexible approach.3 Such ambivalence over interpretative method is not surprising. The great adventure of building a nation through the prism of the Constitution was still in its infancy. While the symbolic role of the Constitution in shaping the character of the people remained uncertain, so too must its method of interpretation.
Marshall’s ambition in crafting the work of the US Supreme Court during its first three decades is undisputed. In the landmark judicial review case of Marbury v. Madison, he stated that “the whole American fabric” had been erected on the idea that “the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness.” Since this original right requires “a very great exertion” that cannot be frequently repeated, its basic principles “are designed to be permanent” and must take effect as “paramount law.”4 At the time of writing it was not at all self-evident that the Constitution either incorporated that ambition or could ever achieve that status.5 But a century later, another great American jurist expressed confidence that Marshall’s ambition had been realized. “When we are dealing with words that also are a constituent act, like the Constitution of the United States,” Justice Holmes declared, “we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.” It was quite enough for them “to hope that they had created an organism” and “it has taken a century and has cost their successors much sweat and blood to prove that they created a nation.”6 The US Constitution, Holmes was proclaiming, was not just an instrument for regulating government: it had become a symbolic expression of the constitution of American society.
This remarkably ambitious endeavor complicates the question of interpretation. It explains why the search for the interpretative method able to present the Constitution as a comprehensive, coherent, and compelling scheme has spawned a vast industry. At fewer than eight thousand words, the US Constitution is a short text, but over the years Supreme Court justices “have written tens of thousands of pages” explicating its terms, creating “a vast amount of meaning that is not contained in the text of the document or its original understanding.”7 To which one might add that those tens of thousands of pages have been glossed by professors of constitutional law covering hundreds of thousands of pages.
The enterprise verges on collective madness, especially if we accept Judge Posner’s claim that, since most Supreme Court decisions “are written by law clerks a year or two away from graduation,” professors of constitutional law are devoting their intellectual energies to assessing the work of their recent students.8 But the stakes are great, involving nothing less than a search for the soul of the nation.9 And because of the range, depth, and sheer intellectual energy of deliberation over interpretative fidelity to the US Constitution, the following analysis is mainly devoted to American debates.
One great achievement of American jurists was to have had the Constitution accepted as a legal document so speedily. Once the Constitution takes the form of fundamental law then, as Marshall emphasizes in Marbury, “it is emphatically the province and duty of the judicial department to say what the law is.”10 As higher-order law, constitutional meaning must be determined as a matter of legal interpretation. At that time, powerful detractors like Jefferson believed that “to consider the judges as the ultimate arbiters of all constitutional questions … would place us under the despotism of an oligarchy,” maintaining that the Constitution “has erected no such single tribunal” but “more wisely made all the departments co-equal.”11 But Marshall’s skillful statecraft firmly established the Court’s standing as guardian of the Constitution.
Constitutional interpretation is nevertheless an onerous responsibility. In Federalist 78, Hamilton recognized that “there can be few men in the society who will have sufficient skill in the laws” to qualify for that judicial task, and fewer still “who unite the requisite integrity with the requisite knowledge.” Conscious that those with such special qualities might be tempted to shape the text according to their own political proclivities, he emphasized that judges must never be disposed to exercise will instead of judgment. The surest safeguard was strict adherence to the standards imposed by professional discipline. In building a consistent body of constitutional knowledge, judges “should be bound down by strict rules and precedents.”
Hamilton’s method became the standard criterion by which constitutional interpretation retained its authority. To meet the challenge of interpreting a document “intended to endure for ages to come” and yet be “adapted to the various crises of human affairs,” the solution must be to work with tried and tested common law methods. This was strongly defended by Justice Cardozo who, in his Storrs Lectures of 1922, argued that “the vacant spaces” left by the “great generalities of the constitution” must be filled “by the same processes and methods that have built up the customary law.”12
For others, however, common law methods conferred too much discretion. The surest way of maintaining interpretative fidelity, Justice Black declared in 1964, is to follow the text’s plain meaning. The framers had wisely ensured that the Constitution would endure by designing procedures for its amendment and they gave “no such amending power to this Court.” The Court’s duty must be “to construe, not to rewrite or amend, the Constitution.”13 Constitutional authority is maintained by interpreting it like any other legal text.
Since the 1960s this textualist method has fallen from favor and in many quarters is entirely discredited. It has been displaced by a creative interpretation that treats the Constitution as a living entity. The value of this method was explained in the landmark ruling that declared legislation prohibiting private homosexual activity unconstitutional. Justice Kennedy stated that, although the framers’ intentions provide a starting point for discerning meaning, they also knew that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Every generation must therefore be free to “invoke its principles in their own search for greater freedom.”14 The appropriate interpretative method, Kennedy concluded, is to invoke principles that capture contemporary culture.
These divergent interpretative methods reflect different philosophies of law: law as a body of custom and practice, law as the will of law-making institutions of the state, and law as a set of ethical principles. They are therefore forever entangled in deeper jurisprudential disputes. The resulting difficulties are illustrated in a relatively mundane case. In Marsh v. Chambers, the Supreme Court was invited to rule on whether the practice of the Nebraska legislature in opening each session with a short Christian prayer violated the First Amendment provision that “Congress shall make no law respecting an establishment of religion.”15
Following Justice Black’s method of interpreting the Constitution as a legal text, the issue is straightforward: the practice is unconstitutional, being a clear case of the official establishment of religion. Following Justice Cardozo’s adherence to precedents, it is also unconstitutional because it fails the test for determining whether a practice infringes on the establishment clause in the leading authority of Lemon v. Kurtzman.16 And following Justice Kennedy’s method of applying principles, it is reasonable to conclude that the practice directly infringes on the purpose of keeping religion out of the political arena. Nevertheless, by a majority of six to three, the Supreme Court upheld the practice.
The Court concluded that the practice did not violate the First Amendment because “it has continued without interruption ever since that early session of Congress.” Accepting that “historical patterns cannot justify contemporary violations of constitutional guarantees,” the Court found that in this case the historical evidence shed light on the founders’ intention.17 Avoiding plain textual interpretation, powerful precedent, and contemporary principles, the Court upheld the practice of official prayers due to historical evidence suggesting that the framers did not intend the establishment clause to apply to this situation.
Robert Post uses this case to illustrate competing theories of constitutional interpretation.18 He suggests that the three main theories of interpretation—doctrinal rules, original intent, and contemporary purpose—are engaged in the endless competition that makes up the entire history of constitutional adjudication. But the ambiguities are even deeper: presented with three powerful normative theories, in this case the Court chose to trump norm with fact, upholding the constitutionality of the practice simply on the basis of prescription. Lacking any authoritative interpretative method, judges are transformed from guardians into masters of the Constitution. They are obliged to express their rulings in the language of right, but there is little to prevent them from being swayed by prevailing forces of power.
Despite the intensity of interpretative disputes, what remains uncontested is that the meaning of the Constitution is the preserve of legal artistry. In the confessional style now commonly employed by prominent constitutional lawyers, Laurence Tribe confides how he abandoned a promising academic career in literary studies for the rigors first of abstract mathematics and then of constitutional law because these were fields of disciplined argument. What makes constitutional interpretation “truly a legal enterprise,” he explains, is that it is “genuinely disciplined by widely shared canons of the interpretive arts and by stubborn truths of text, structure, and history.” Tribe’s is a powerful defense of the task of understanding the Constitution both as a legal text and “a constitutive text.”19
Scholars generally agree that constitutional meaning is discerned by applying legal analysis to text, structure, and history, these being the main factors that shape competing claims over original intent, doctrinal rules, and contemporary purposes. Disputes tend to revolve around their relative importance. Akhil Reed Amar rescues textualism from conservatives with a sophisticated textual interpretation of the Constitution, revealing a more progressive document than is commonly appreciated.20 Ronald Dworkin does a similar job with doctrinal history, arguing that judges respect “the dominant lines of past constitutional interpretation” and promote “constitutional integrity” by articulating “different understandings of central moral values embedded in the Constitution’s text.”21 And rescuing structural analysis from a rigid formalism, Tribe himself shows that beyond the visible Constitution, we can discern what is “invisible within it,” thereby revealing the integrity of the Constitution’s complex arrangement.22 Transcending their differences, these jurists share an appreciation of the authoritative status of the text and a conviction that its meaning can be disclosed through skillful legal analysis.
The defining characteristic of this type of American constitutional scholarship is its fetishism. This is symptomatic of the triumph of constitutionalism. Investing the Constitution with extraordinary authority despite fundamental interpretative disagreements, such fetishism promotes a cult of uncritical devotion toward the text. It leads to what Christopher Eisgruber calls the “aesthetic fallacy,” the assumption that “the Constitution has an underlying aesthetic integrity, so that we should be extremely reluctant to conclude that it is redundant, clumsy, ambiguous, or incomplete.” A consequence of this fallacy is the conviction that constitutional disputes can be resolved through interpretative acumen. Yet the Constitution is not “a work of political philosophy or a sacred text or an architectural blueprint or a great work of literature”; it is a document born of compromise by practical politicians operating through committees. It is not at all surprising that in places it is “vague, turgid, or redundant” or that it contains “pedestrian provisions and unfortunate errors.” It would be “silly to interpret the Constitution in the way that we interpret poetry, philosophical texts, blueprints, or the Bible,” but Eisgruber’s damning conclusion is that this is what most American constitutional lawyers are doing.23
Suppressing the fact that the Constitution was a product of political compromise has had unfortunate consequences for American constitutional jurisprudence. The evidence shows that to form “a more perfect union,” the Founders had not only to compromise on basic principles but also to obscure the character of the regime they were establishing. Specifically, the Constitution was drafted to achieve a compromise over slavery, and it could only maintain its authority by preserving that compromise. The silences, ambiguities, and what Eisgruber calls “unfortunate errors” in the text were deliberate aspects of its design.
Without providing explicit protection for slavery, the Constitution ensured that governing authorities could not abolish slavery without the consent of slave-owning states. Provisions such as the fugitive slave clause (Art. IV, sec. 2, cl. 3), the moratorium on federal legislation banning the international slave trade until 1808 (Art. I. sec. 9), and the provision counting every slave as three-fifths of a person for the purpose of legislative representation (Art I, sec. 2, cl. 3) were all designed to achieve this purpose. Slavery, as Justice Daniel noted in the Dred Scott case, “is the only private property which the Constitution has specifically recognized, and has imposed it as a direct obligation both on the States and the Federal Government to protect and enforce.”24
This compromise over slavery was maintained during the early decades of the republic. It was held securely in place by the political dominance of southern states, with slave-owning Virginians controlling the presidency for all but four of the first thirty-six years. Twelve of the sixteen presidential elections between 1788 and 1848 put a southern slaveholder into the White House.25 The compromise lasted until the mid-nineteenth century when it was strained by changing demographic patterns that gave northern states greater political power. And it was at this point that the question of the original constitutional compromise came to the fore.
Today there is overwhelming consensus among constitutional lawyers that the Court’s decision in Dred Scott came from an incorrect theory of constitutional interpretation and is the single worst decision in Supreme Court history.26 Yet the Court’s decision was faithful to the Constitution’s original settlement. Dred Scott has acquired such notoriety because now that the Constitution apparently constitutes the character of the people, it must be reinterpreted as the expression of founding wisdom and the embodiment of the nation’s fundamental values. In reality, what happened during a turbulent period of social, economic, political, demographic, and technological change, was that the nation was presented with a conflict between constitutional obligation and social justice. President Lincoln chose justice over obligation and, in order to vindicate that choice, chose war over peace. Whatever the rights and wrongs of that choice—and it led to the death or injury of millions in the ensuing Civil War—to say that all this turned on a matter of constitutional interpretation is to adopt winner’s history and with it the cult of aspirational constitutionalism.
For Mark Graber, “Lincoln failed the Constitution by forgetting that his obligation to adopt a plausible interpretation of the Constitution that preserved the social peace was constitutionally higher than his obligation to adopt an interpretation of the Constitution that best promoted justice.” Graber’s conclusions also touch on five other issues of constitutional interpretation. The first is that theories of constitutional interpretation cannot address what he calls “constitutional evil,” which can only be confronted with a “constitutional politics that persuades or by a nonconstitutional politics that compels crucial political actors to abandon an evil practice.” That is, fancy interpretative theories provide no substitute for practical politics. Second, the US Constitution, like all constitutions, was the product of compromise. With so many different interests to be accommodated, there must be limits on any comprehensive theory of the values and principles on which a regime rests. Third, pace aspirational constitutionalists who discover values in abstract expressions of principles, constitutions more commonly succeed by using prosaic mechanisms of an institutional design that allows political negotiation. Fourth, “the Constitution caused the Civil War by failing to establish institutions that would facilitate the constitutional politics necessary for the national government to make policies acceptable to crucial elites in both sections of the country.” And, finally, “those responsible for creating and maintaining new constitutions in heterogeneous societies cannot be Lincolnians.”27
The logic of this argument is that we should not look to the Constitution for our collective ideals of justice. The main purpose of a constitution is to establish the authority of the system of government, requiring that it maintains social peace among people with different visions of the good society. This purpose is found in Madison’s vision of the Constitution built on national representation, federalism, checks and balances, and judicial review, but it has given way to the equation of the Constitution with Supreme Court jurisprudence. Given the specific historical experience of the United States, it is conceivable that social peace can now only be maintained by a permanent investment in this cult of constitutional legality. Even so, we should not deceive ourselves about the consequential costs and distortions.
A rickety charter of rights containing abstract protections of life, liberty, and property alongside a right to bear arms and insisting that enumerated rights “shall not be construed to deny or disparage others retained by the people” is hardly the acme of modern rationality. It fails to include “the right to travel, the right to vote, the right to marry, the rights of parents to conduct the upbringing of their children, the right to choose a vocation and earn a living, and, most glaringly, any sort of equality right” leaving these and other basic rights to be devised by the Supreme Court on an ad hoc basis and subject to political trade-offs according to the composition of the Court.28 It culminates in the peculiar belief that one of the most important powers of the president, the most powerful political office on earth, is the right to nominate judges to sit on the Court.
A critical aspect of the Weimar debates over method was the distinction between the constitution and constitutional law. Constitutional lawyers go wrong, argues Schmitt, by focusing on the relative concept of the constitution, the constitution understood as “a multitude of individual, formally equivalent laws.” Coherent constitutional interpretation, he maintains, depends on an absolute concept that expresses the constitution of the state as a real or reflective whole.29 From this perspective, American jurists go wrong in conflating the text (the relative concept) with the manner in which their state is constituted (the absolute concept). This is symptomatic of the fetishism of constitutionalism.
This quality of constitutionalism is masked by the unique standing of the Constitution in American public life. American jurisprudence divides into two broad schools: strict constructivists and aspirationalists.30 Once it is accepted that objective interpretation of a text—its plain meaning—is impossible,31 these schools can be seen to present competing accounts of an absolute concept, the constitution of the state. They seek to present a cogent interpretation of the character of the regime and then show, implicitly, how it finds expression in the Constitution. Schmitt argues that there are two accounts of the absolute concept, the existential and the normative, reflecting the two-sided character of the state. Yet American theorists invariably present normativist interpretations. Despite their evident differences, Amar, Balkin, Dworkin, and Tribe all espouse normativist interpretations of the character of the regime and this then determines their reading of the US Constitution. Some, such as Amar and Tribe, do so while remaining focused on the text, while others—including Balkin and Dworkin—explicitly adopt a broader method in which marginalia—declarations, preambles, and footnotes32—have greater significance.
The most critical challenge to normativist interpretation comes from those who do not overlook the existential aspects of constitutional analysis. Glimmerings are seen in those textualists called “originalists” for whom the Constitution expresses what the text meant when it was first adopted.33 This method might have resonance in a recently adopted constitutional text but seems little short of bizarre with respect to the US Constitution, which was drafted almost a quarter of a millennium ago.
The most influential existential analysis, however, is Bruce Ackerman’s monumental study We the People, which is an account of the Constitution as a dynamic process in which the political unity of a people is continuously reconstituted.34 In a three-volume study of 1,300 pages written over a period of twenty-five years, Ackerman’s method has undoubtedly evolved, but its central theme remains fixed. He argues that a cult of constitutional legality has come to dominate constitutional discourse to such an extent that Americans cannot now grasp the significance of the changes made since the founding era. They know that the Constitution has changed in fundamental ways, but their fixation on Supreme Court opinions has meant they are taught “to conceptualize these changes in ways that trivialize them.” Only when we are clear about “what we should be interpreting” can we appreciate “how to interpret.” In place of the text, he argues, the focus should be on the regime, “the matrix of institutional relationships and fundamental values that are usually taken as the constitutional baseline in normal political life.”35
Ackerman argues that a regime-centered analysis offers insights “into the interpretive dilemmas of the past” and clarifies “many modern problems of constitutional interpretation.” What must be interpreted is neither the text nor some ideal normative scheme but “an evolving historical practice, constituted by generations of Americans as they mobilized, argued, resolved their ongoing disputes over the nation’s identity and destiny.” This point has been obscured by the formal amendment power in Article V which, combined with a cult of constitutional legality, skews appreciation of the real nature and extent of constitutional change. There is dissonance between a legal formalism that projects continuity and a “nation-centered substance” that establishes “the dynamic force behind the living constitution.”36
The message is that in its legal form the Constitution expresses the values of classical constitutionalism, but in political reality it has become a total constitution, the constitution of the regime rather than simply the constitution of its office of government. The critical shift happened during post–Civil War Reconstruction. This was the moment when the 1787 Constitution, founded on a division of powers between the states and the federal government within which change took the form of an amendment, was effectively supplanted by substantive constitutional change forged in a consensus of president, Congress, and court. Reconstruction Republicans brought in reforms that stretched the 1787 Constitution “beyond the breaking point.” Instead of holding a second Constitutional Convention, they “adapted the separation of powers between Congress, President, and Court as a great new engine for refining the constitutional will of the American people.”37
Reconstruction, Ackerman argues, was as profound a constitutive act as that of the founding. At its core lay the principle of presidential leadership in which the president’s initial claim to have a mandate from the people for change was most importantly taken up by Congress and later endorsed by the court. This principle was strengthened during the New Deal, when elements of the nineteenth-century constitutional settlement were superseded, and a system of government that could meet contemporary economic and social challenges was established. This system then laid a platform for the mid-twentieth-century civil rights revolution.
By focusing on the constitution of the regime, Ackerman explains, we see how the original “decentralized federal system enabling white men to pursue their self-interest within a market economy” has been replaced by “a powerful national government with unquestioned authority to secure the legal equality and economic welfare of all its citizens.” The change results from interaction among all the major political actors, of which the court is only one element, and it brings about real change, not just the promise of abstract rights. Whereas aspirational normativists laud landmark rulings like Brown v. Board of Education of Topeka,38 in reality it was when the president and Congress bolstered the ruling with a series of momentous statutes “that Brown’s promise became a fundamental premise of the modern republic.” Tending not to treat legislation as a source of constitutional principle, lawyers fail to see how statutory reforms provided “the primary vehicle for the legal expression of popular sovereignty in the twentieth century.”39
Ackerman argues for a reorientation that interprets the regime rather than the text. He shows that critical moments like Reconstruction or the New Deal, while giving a formal nod to the lightly amended Constitution of 1789–1791, are also “acts of constituent authority.”40 His thesis shows how a relational conception of constituent power does its work, illustrating what Schmitt meant with his concept of the constitution as a dynamically-evolving reconstitution of political unity. It also throws into relief the gulf that has arisen in US scholarship between constitutional theory and practice. Ackerman’s is not the only account to do so—Post’s analysis of Marsh v. Chambers also shows how theories of constitutional interpretation reflect different conceptions of constitutional authority.41 But no one has surpassed Ackerman’s account of why, contrary to the cult of constitutional legality, any sound theory of constitutional interpretation in a world of the total constitution must begin by interpreting the regime.
One defining feature of the present age of constitutionalism is the abiding faith placed in the judiciary to determine the legitimacy of laws enacted by democratically elected legislatures. This they do with reference to principles that, whether or not explicitly stated, are assumed to be inscribed in the state’s constitution. Across the world—from Costa Rica to Indonesia, Hungary to South Africa—newly-established constitutional courts are charged with propagating the faith.42 Local variations exist, but they have a common theme: to explicate, through interpretation, the liberal values implicit in the regime’s “invisible constitution.”
Responding to these post-1989 developments, Ackerman strikes a different chord. Asserting the primary importance of “the creative role of constitutionalism,” he argues that adopting an entrenched constitution must take priority because “constructing a liberal market economy, let alone a civil society, requires decades … and the project can easily be undermined without the timely adoption of an appropriate constitutional framework.” He accepts that a “piece of paper calling itself a constitution” can be “an empty ideological gesture” without the means of ensuring that it becomes “a profound act of political self-definition.” But the failure to entrench liberal gains, he maintains, will lead only to the erosion of any revolutionary achievement.43 Ackerman here reveals a renewed faith in an entrenched constitution, a faith later affirmed by his suggestion that Roosevelt’s failure to entrench the liberal gains of the New Deal had “a profound [sc. negative] impact on the next sixty years of constitutional development.”44
There appear to be two Ackermans: the analyst and the advocate. The advocate promotes the entrenchment of liberal values in a new constitution while the analyst warns that this leads to a cult that distorts understanding of political change. The advocate endorses liberal normativism, while the analyst highlights its dangers.45 But does not his advocacy overvalue the benefits of entrenchment? If liberal reforms are not working for the benefit of the many, then they are likely to unravel, with or without entrenchment.46 The post-1989 experience in Central and Eastern Europe suggests that the adoption of a liberal constitutionalism that exchanges “pluralism for hegemony” and signifies “modernization by imitation and integration by assimilation” is leading to the rejection of what can only be “an inferior copy of a superior model.”47
The evident absence of authoritative methods of constitutional interpretation is now contributing to a growing entanglement of courts in political controversy that can, it seems, only lead to an erosion of their legitimacy. This leads to two divergent types of response.
The first openly acknowledges these conflicts between theories of constitutional interpretation and recognizes that they rest on differing substantive visions about the meaning of the constitution, but argues that, rather than threatening the constitution’s legitimacy, they actually help to sustain the constitution’s authority. This argument, labeled “democratic constitutionalism,” explicitly advances constitutional litigation as a surrogate political process. Accepting that no general normative methodology for deciding constitutional issues exists, Robert Post and Reva Siegel instead simply place their faith in the constitutional order’s responsiveness to these competing political visions.48 Tocqueville had argued that in a democracy, people obey the law because it is their own work and it can be changed if it does not command acceptance.49 In a bold and rather implausible maneuver, Post and Siegel now implicitly appropriate Tocqueville’s defense of democracy to justify the rather different regime of constitutionalism.
A second, widely touted response has been to shift the focus from theory to practice. Since no authoritative interpretative method exists, might a consensus nevertheless be formed over how judges actually undertake constitutional review? A proposed solution adopts a technique that, it is claimed, “entails very little interpretation,” renders the underlying conception of rights “almost irrelevant,” and enables judges “to evaluate the work of the political branches of government from a common perspective and without regard to their own political and moral philosophies.”50 This technique comes into its own once all interests are capable of being expressed in the language of rights. With the proliferation of rights discourse, rights are effectively converted into mere claims and, since most disputes involve competing claims, the court’s role is transformed. Rather than inventing rights through interpretation, they simply need a method of weighing competing claims.
The solution is proportionality analysis. This technique requires the court to assess: (1) whether a measure that infringes a constitutionally protected interest serves a legitimate purpose, (2) whether the measure actually furthers that purpose, (3) whether the measure is necessary to realize that purpose (or whether there a less intrusive but equally effective measure exists), and (4) having met the previous tests, whether the benefits of infringing the interest are greater than the loss incurred. This test, first devised in German jurisprudence, has since been widely adopted as a standard technique for constitutional litigation addressing rights claims.51
Proportionality analysis illustrates a change in the role of the judiciary under the total constitution. Some claim that it institutionalizes “a practice of Socratic contestation” in which, rather than applying rules or interpreting principles, courts assess justifications.52 Constitutional courts therefore resolve the dilemma of interpretation by becoming a forum for reviewing the public reasons that justify public action.53 On this basis, argues David Beatty, the practice of judicial review “has nothing to do with solving interpretive puzzles”; instead, it instigates “a distinctive kind of discourse that operates, in Habermas’s terms, in an intermediate zone between facts and norms.”54 Constitutional review, no longer an exercise in interpretation, becomes a forum of policy review analogous to auditing.
With the emergence of proportionality analysis, Schmitt’s quaintly named “motorized legislator” is compounded with that of the algorithmic adjudicator.55 Losing their unique character as constitutional guardians, judges now engage in policy review and enter into dialogue with legislatures and executives.56 Any residual elements of classical constitutionalism, such as the separation of powers or strict rule of law enforcement, disappear to be replaced with an auditing technique that ostensibly resolves all the legitimacy problems of constitutional interpretation. Integration through interpretation is displaced by integration through system rationality. And in place of democratic constitutionalism’s open embrace of aspirational constitutionalism, the culture of justification promoted by proportionality analysis now aligns constitutional review more closely with the precepts of Ordo-constitutionalism. This, as will be shown in Chapter 13, is considerably strengthened by global developments.