CONSTITUTIONALISM has recently gone through a remarkable rejuvenation. Languishing in the mid-twentieth century as an anachronistic doctrine reflecting an eighteenth-century vision of limited government, it has been transformed into the world’s most powerful philosophy of governing. The constitution has accordingly been elevated from its original task of regulating relations between governmental institutions to the symbolic representation of social unity. Driven by a rights revolution that dramatically strengthens the power of the judiciary, these developments have generated a novel concept of constitutional legality which, marking the fusion of legal and political reason, upholds an “invisible constitution” of abstract principles that is rapidly acquiring universal influence. But how did constitutionalism become such a powerful ruling philosophy?
One explanation can immediately be discounted. Constitutionalism was cemented as the ideology underpinning the world’s first experiment in organizing government through a constitution. Whatever the reasons for its extending influence, they are not attributable to the model characteristics of the US Constitution itself. A century ago, Harold Laski complained that the Constitution “is the worst instrument of government that the mind of man has so far conceived,”1 a judgment that subsequent developments have done nothing to rebut. In his 2006 book Our Undemocratic Constitution, Sanford Levinson examines its many egregious features. These include the equal representation of states in the Senate, despite the fact that the largest has a population seventy times greater than the smallest; an Electoral College to formally elect the president, resulting in candidates entering the White House without winning the popular vote; Supreme Court justices’ appointments for life, leading to infirm octogenarians unable to discharge their onerous responsibilities; and an amendment procedure that makes the Constitution the most difficult to alter of any in the world. Levinson concludes that the Constitution erects “almost insurmountable barriers in the way of any acceptable notion of democracy.”2
American experience has undoubtedly influenced contemporary developments but not because of the constitutional text. Much more powerful has been the great number of sophisticated theories of constitutionalism propagated by American jurists. Written primarily as idealized visions of their own “invisible constitution,” they have been dusted down and offered to states with more recently adopted constitutions. Bruce Ackerman was only half joking when he opened his third volume of We the People with a “familiar conversation” between himself and a government official, explaining that “since 1989, the State Department had been badgering me to serve on delegations to advise one or another country on its constitutional transition to democracy.”3 We might harbor doubts about the value of these culturally specific insights to regimes only recently seeking the transition to liberal democracy, but there can be no doubt about the global influence of American constitutional jurisprudence.
That influence has been most keenly felt in countries that have reached a critical point in their development and need a clean break with the past.4 When circumstances decree that almost nothing from historic practices can be retained, constitutionalism presents itself as a legitimate scheme for modern government. States facing “year zero,” the complete rupture caused by a break with fascism, colonialism, communism, or other forms of authoritarian rule, have discovered that constitutionalism offers an alluring basis for reconstruction. In these circumstances, nations cannot draw on an existing culture as the source of constitutional renewal. The modern state is a two-sided entity comprising both normative and material aspects but, when a clean break is necessary, the normative power of the factual is precisely what must be rejected. Presented as a comprehensive normative scheme for a fundamentally reconstructed state, the image of the constitution proposed by the theory of constitutionalism offers a blueprint for the good society to come, promising to bridge the gap between present reality and future ideals.
This is one reason why classical constitutionalism, once an institutional arrangement to protect the liberties of the propertied class, is now an anachronism. Far from instituting a scheme of limited government, recent constitutions impose manifold duties on government that seek the conversion of its inscribed values into political reality. These aspirational constitutions convert the legislative role into executive action directed toward the realization of those values. This is constitutionalism as emancipatory project. But it encounters a powerful rival in Ordo-constitutionalism which, reworking classical constitutionalism for contemporary conditions, skews the constitution toward the quite specific end of preserving individual freedom by protecting a market-based order. Of much greater significance than these diverse political ends, however, is the fact that each project seeks to advance its claims through the template of constitutionalism. In the real world of global politics, where ideal expressions of right must bend to the dynamic forces of power, such a template imposes stringent constraints on any aspirational ambitions.5
But it is not just the growing numbers of states making radical breaks with their pasts that has so dramatically expanded the reach of constitutionalism. Deep-seated socioeconomic changes have altered the conditions of constitutional government as profoundly as those marking the movement from traditional to modern constitutions. These changes are a consequence of what has been called the second phase of modernity. It begins once mass production capitalism reaches the critical point of creative destruction, a stage that many advanced economies have reached over the last few decades. In this second phase of modernity, the effectiveness and legitimacy of many collective institutions of modern life—factory systems, big bureaucracies, major corporations, and even nation-states—are undermined by a series of structural changes falling under the general heading of “individualization.”6
Extending its influence across the range of social, economic, political, and cultural fields, individualization has had a major impact on all systems of government. Its momentum has led to the erosion of hierarchies, the outsourcing of many collectively organized tasks, and the displacement of collective decision by individual judgment. This in turn has meant the fragmentation of institutional arrangements as bureaucracies are broken down through policy-operational differentiation and the outsourcing of activity, the perforation of boundaries between public and private, and the increased influence of rights discourse. A further feature of second-phase modernity is the growing dominance of systems organized on a global scale. Because of this, national governments have seen their authority challenged, both from above by global systems and from below by the blurring of public and private and the demands of individual rights. Such rapid structural changes have unsettled conventional expectations and generated yet more formal and transparent arrangements, transforming the role of the constitution in the social life of the nation.
This transformation leads to constitutionalism taking a reflexive turn. Individualization encourages this in numerous ways. The constitution is reinterpreted through the prism of individual rights rather than institutional powers. The center of action shifts away from legislatures into the courts, where a determinate decision by legislative will is replaced by deliberative judgment through judicial reasoning. The growing social influence of constitutional discourse leads to the emergence of the total constitution, which is reimagined according to universal principles such as rationality, proportionality, and subsidiarity. Finally, reflexive constitutional reasoning permeates all social and political discourse, leading to the reconceptualization of state and society on the foundation of individual rights. The name I have given to this entire process is constitutionalization.
The contemporary period is not “the age of constitutionalism” just because of a growing number of states that are reconstituted in ways that mark a clean break with the past. It is so designated because, as a result of these socioeconomic changes, the role of the constitution in all regimes of constitutional government is revitalized. The dramatic impact that constitutionalization has had on constitutional jurisprudence was examined in Part III. If we focus only on domestic developments, it is tempting to see the move toward a principled, rights-based, universalizing jurisprudence of aspiration as an entirely progressive change. But this overlooks the way that constitutionalization dissolves the sharp lines dividing the national from the international.7
A particularly insidious aspect of the second phase of modernity is the increasing amount of governing power now exercised by international institutions. Established as intergovernmental arrangements to coordinate action in a world of growing interdependencies, constitutionalization reinforces their authority. Yet these institutions are not established by democratic authorization, that is, by an expression of the people’s constituent power. If they are legitimated at all, it is according to certain universal precepts of public reason. And as these global networks of governance extend their power and influence, Ordo-constitutionalism comes of age. Working through the constitutionalization of international institutions and the interpenetration of national and international, its neoliberal cosmopolitan and market principles not only permeate national constitutional discourse but even impose structural constraints on its range of operation. Despite the apparently competing rhetorics of aspirational and Ordo variants, it is the disciplinary template of constitutionalism itself that determines their relative influence.
The impact of this reflexive turn can be summarized by revisiting the six main criteria of constitutionalism specified in the Introduction. The first principle, that the constitution establishes a comprehensive scheme of government, must be extended: the constitution now provides a blueprint for a comprehensive scheme of society. The second, the principle of representative government, is converted to the constitution as the symbolic representation of collective political identity and, with respect to international institutions, signifies a reinstatement of the principle of virtual representation once vehemently opposed by the American colonists. The third, the division, channeling, and constraining of governmental powers, devised to establish limited government through the horizontal allocation of powers between legislative, executive, and judiciary, now also expresses the vertical differentiation of powers between global, regional, national, and local authorities in a scheme of total government. The fourth, that the constitution creates a permanent governing framework, now bolsters the legitimacy of international institutions through the constitutionalization of intergovernmental arrangements. The fifth, that the constitution establishes a system of fundamental law, is globalized and so loses its link to collective political will, becoming the embodiment of universal public reason. Finally, the principle that the constitution assumes its status as the regime’s collective political identity becomes the common template of an invisible constitution of neoliberal values with a global reach.
Do these rapid developments signal the waning of constitutional democracy? The most compelling argument to the contrary seems to be the dramatic growth in the numbers of states classified as constitutional democracies in the last few decades. At the end of the Second World War, only twelve established constitutional democracies were left standing in the world.8 By 1987, the number had grown to 66 of the world’s 193 United Nations member states and, by 2003, that figure had almost doubled again, to 121.9 Almost every state seeking to legitimate its rule in the eyes of its citizens and the world now feels it must present itself as a constitutional democracy.
But these statistics are deceptive and must be qualified. Constitutional democracy’s key feature is to maintain the tension between two basic concepts of freedom: freedom as collective self-rule and freedom as individual autonomy. These must be kept in a state of productive irresolution because it is this that confers on constitutional democracy its open and dynamic character. Like all modern regimes, constitutional democracy involves governing by an elite. But it is distinctive in conferring the equal right on citizens to elect and be elected, and in requiring all major decisions to be subject to the ultimate verdict of the people.
Vital though it is, the practice of constitutional democracy is not reducible to regular elections based on universal suffrage. For elections to be meaningful, there must be a culture of active political engagement facilitated by a free press, vibrant civil society associations, and transparency in public decision-making. Constitutional democracy also promises advancement toward what Tocqueville called a growing equality of conditions. For this to be realized, we look for an increase not just in the number of those with a right to participate in decision-making but also in the number of arenas in which this right can be invoked.
Constitutional democracy cannot be defined simply as a form of government. The regime might be presidential or parliamentary, unitary or federal, and its electoral procedures can vary, as can the ways in which it identifies and protects rights. Constitutional democracy is both local and pluralistic, and justly so since it owes its authority to a particular people of a defined territory. In these respects, the adopted constitution must be seen to have been erected on the foundation of an already existing constitution of the state. It is this constituted order that invests with precise meanings principles of popular authorization, transparency in public decision-making, political equality, and accountability. Crucial to the flourishing of the regime are active civil society associations that educate and formulate, strong political parties that convert diverse views into a common will, a relative equality of income and wealth, and a civic culture that tolerates difference. As John Stuart Mill appreciated, these strenuous conditions are most likely to be met by a people “united among themselves by common sympathies.”10
Few of the constitutional democracies appearing in recent global trends qualify according to these more rigorous criteria. This is not just because they are populous, culturally diverse states with complicated histories and a wide variety of governmental arrangements. The crucial point is that all too often they have been invested with the institutional trappings of constitutional democracy without the underpinning political culture to sustain it. Quantitative studies classify as constitutional democracies those regimes that have been modernized by the imposition of constitutionalism as a technical fix. Yet the ambition behind this exercise is daunting. It often requires newly independent nation-states with little prior experience on which to draw to quickly establish functionally effective market systems, vibrant civil society networks, strong and competitive political party systems, and workable mechanisms for ensuring transparent and accountable government.
Given the scale of this task, it is hardly surprising that so many newly established constitutional democracies are not functioning as many had hoped.11 And yet, the apparent failure of the experiment has not led to the overthrow of these regimes. Rather than being ousted by coups d’état or other revolutionary action, they have kept the institutional trappings of constitutional democracy but without adhering to the norms and values by which they are supposed to work. Such constitutional democracies are degraded by being hollowed out from within.
This phenomenon is not just a feature of newly established regimes. It also afflicts relatively mature constitutional democracies. The strains are felt on multiple fronts. Constitutional democracy builds its authority on the pivotal role of the legislature as the primary institution of representative democracy. Yet legislatures are now losing authority to governments, regulatory officials, and courts. This erodes the principle of popular authorization, simultaneously weakening legislatures and political parties. Organized as vehicles for the formation of popular will, political parties now seem remote from their members and beholden to powerful backers. The result is that most established political parties have experienced a serious decline in support.12 These domestic political trends are reinforced by the sense that governing power is increasingly exercised by officials in international organizations whose remit is opaque and who are insulated from established methods of control and accountability. Together, these trends indicate a marked decline of trust not just in political elites but also in governing institutions.13
The decline in political authority is accentuated by the impact of recent social and economic changes. Of particular importance has been the accelerating growth of economic inequality in all constitutional democracies.14 In direct contrast with Tocqueville’s principle of a growing equality of conditions, this erodes the sense of common feeling that sustains constitutional democracy. The cause is not just the corrosive effects of the threat of economic power being converted into political power, but also, in a new take on Sieyes’s views of the nobility, the wealthy no longer seeing themselves as part of a territorially bounded political nation. Compounded by historically unprecedented levels of migration into advanced democracies, it is a trend that fragments the sense of “the people” and loosens the “common sympathies” that sustain constitutional democracies.15
The cumulative effect of these changes on the status of constitutional democracy has been profound. The challenges of accommodating the interests of large heterogeneous societies through representative politics, of securing both economic growth and acceptable wealth distribution, of maintaining territorial controls in a world of porous borders, and of curbing the power of transnational institutions all put enormous strain on the capacity and legitimacy of constitutional democracy.
Such somber developments considerably complicate any defense of constitutional democracy against constitutionalism. But at least they present a more realistic basis for analysis. Recent developments have triggered numerous studies examining how and why constitutional democracies are in decline and what might be done to protect them.16 The startling fact, however, is that these studies assume that the regime under attack is a constitutional democracy. Invariably conflating constitutional democracy with constitutionalism, they fail to consider whether the problem is not with constitutional democracy but with the way that rampant constitutionalism transforms constitutional democracies.
There have been many discussions about the emergence of so-called illiberal democracies in states like Hungary and Poland, about the growing electoral success of nationalist parties such as the Front National in France (since 2018 renamed Rassemblement National), Alternative für Deutschland (AfD) in Germany, the Freedom Party of Austria (FPÖ), Lega Nord (in 2018 rebranded as Lega) in Italy, or the Bharatiya Janata Party (BJP) in India, and about the erosion of constitutional norms following the emergence of authoritarian leaders. But these studies have focused determinedly on sources of dissatisfaction with constitutional democracy. They have not engaged with the possibility that these developments might be reasonable responses to how constitutional democracies have been undermined by the extending influence of constitutionalism.
The contemporary crisis is widely considered to have its source in the looming specter of “populism.”17 This label has been applied to a range of political movements whose manifestations vary according to circumstances. Unlike liberalism, socialism, or indeed constitutionalism, populism is not a specific ideology giving rise to a distinctive political movement. Populism is a syndrome, a set of symptoms indicating an ailment afflicting contemporary democracies.18 Born of dissatisfaction with the ways in which constitutional structures and party politics are working, populist politics seek more direct means by which popular opinion can influence governmental decision-making. In this respect, the aim is to restore the voice of the majority as the authentic expression of constituent power. It is not difficult to denigrate the movements falling under this label as nationalist, xenophobic, simplistic, antipluralist, a revolt of the “left-behinds,” and downright dangerous if transformed from syndrome to project for power. Populism is undoubtedly a reaction to the impact of deep-seated social and economic changes falling under the umbrella of globalization. But it can also be seen as the inevitable political response to the reflexive turn taken by contemporary constitutionalism.
This is not how the rise of populism is seen in contemporary constitutional scholarship, which invariably assumes it is simply an expression of antagonism to constitutional democracy.19 These studies offer an inventory of solutions: imposing bans on radical political parties and curbs on free speech, adopting “eternity clauses” that prohibit the amendment of basic principles of the constitution, instituting threshold voting arrangements, and strengthening the powers of arms-length reviewing institutions.20 The solution commonly touted to threats associated with the rise of populism is to strengthen the institutional mechanisms of constitutionalism. Having wrongly diagnosed the ailment, what is proposed as a remedy is an intensification of the treatment that is one of the main sources of the original disorder.
Many if not most of these populist movements have arisen in opposition not to constitutional democracy but to the way it has been reshaped by constitutionalism. Consider for example the rise of populism in central and eastern European states that have undergone a rapid transition from Soviet-style socialism to market capitalism. Here, the growth of populism seems directly linked to the imposition of constitutionalism. In these regimes, argue Ivan Krastev and Stephen Holmes, “discontent with ‘the transition to democracy’ was … inflamed by visiting foreign ‘evaluators’ with an anaemic grasp of local realities.” The rise of populism, they suggest, is born of “humiliations associated with the uphill struggle to become at best an inferior copy of a superior model.”21
Indeed, some radical theorists have argued that populism is less a symptom of decline than a sign of the possible renewal of democracy.22 Populism provokes us to inquire more deeply into the sources of these recent constitutional developments, but it is best seen as a warning symptom of how the political foundations of constitutional democracy are being eroded.23 If rampant constitutionalism is part of the problem, a more productive way forward must be to restore the basic values of constitutional democracy.
Is constitutional democracy a twentieth-century phenomenon whose time has passed? That certainly is the view of cosmopolitans who believe that the second phase of modernity has demolished the foundations of modern state-based constitutional democracy. They argue that the project of building constitutional authority on the foundation of the modern idea of the state—the union of territory, people, and sovereign authority—is over, claiming that authority now depends on the degree to which governmental practices conform to an ideal “invisible constitution.”
The invisible constitution does not prescribe a particular arrangement of governing institutions but comprises a set of universal principles explicated by a network of judicial bodies. The modern idea of the constitution as a text in which the people, through an exercise of constituent power, outline the terms by which they govern themselves is relegated to secondary matter. The hierarchical relationship between ordinary law made by legislatures and the fundamental law of the constitution has been superseded. In the new cosmopolitan paradigm, the constitution no longer has ultimate authority since it is now subject to the creative powers of judicial interpretation that render it compliant with the principles of the invisible constitution. Super-legality reigns.
This looks like progress: who could object to the subjection of governmental decision-making to rationality review? In fact, it is political naivete. Cosmopolitan constitutionalism promotes the authority of a set of self-sustaining principles, but these principles only acquire meaning when infused with values. And these values become clear when it is seen that the invisible constitution is closely linked to a powerful global network of invisible power.
In the 1980s, Norberto Bobbio drew attention to the ways in which the values of democracy as a system of open government by a visible power were being eroded by the growth of a corporate state wielding influence through invisible methods beyond the reach of democratic control and accountability.24 The world has much changed since then. Second-phase modernity has resulted not in a diminished state but in a much more fragmented one. With the proliferation of semiautonomous agencies, the blurring of public-private boundaries, and the growing power of global networks, invisible power has now become a more pervasive phenomenon even less susceptible to political accountability. Constitutionalization might therefore be seen as an attempt to regulate invisible power. But whatever benefits constitutionalization might confer—and it does at least operate on the principle of openness—it ends up legitimating a system that is no longer the project of a people and no longer subject to popular control. The new species of law it brings in its wake is itself a new type of invisible power. In the nineteenth century, Tocqueville recognized that, by neutralizing the vices inherent in popular government, lawyers inevitably become the conduits of constitutional democracy. Continuing to value liberty and being attached to order above all other considerations, they have now become effective agents in bolstering the new global system.25
At the beginning of the twentieth century, Weber outlined the thesis that modern capitalism had its origins not in the Enlightenment and the processes of secularization, but in the emergence of new forms of religious conviction that preached individual responsibility, required more methodical control over conduct, and embraced acquisition as the ultimate purpose of life. He concluded his argument by suggesting that no one knows “who will live in this cage in the future.” It is surely not fanciful now to see in the triumph of constitutionalism the culmination of Weber’s claims.26 Marking the apotheosis of individual rights, it contributes to the hollowing out of democracy and the retreat of the individual into a privatized society in which few participate in public affairs. And as Tocqueville foresaw, this will lead to a void that can only be filled by an extensive regulatory network operating in a governing mode that is “absolute, minute, regular, provident, and mild.”27
There are many powerful forces directing contemporary change and subverting the authority of a political worldview founded on equal liberty in solidarity.28 Yet the fact remains that civilized life still requires an extensive governmental apparatus to provide the physical and social infrastructure essential for peace, security, and welfare, and no more effective method of ensuring the realization of these goals has been devised than the political conception of constitutional democracy I have outlined. Ultimately, the argument against constitutionalism rests on the claim that it institutes a system of rule that is unlikely to carry popular support, without which only increasing authoritarianism and countervailing reaction will result.