CONFUSION about the meaning of constitutionalism derives from ambiguity about the very idea of a constitution. In modern understanding, a constitution is a consciously constructed artifact. A constitution is a document adopted in the name of the people that defines the powers of government, specifies the basic rights of citizens, and regulates the relationships between the established institutions of government and their citizens. By extension, constitutionalism expresses the conviction that the exercise of political power in that regime must be subject to the disciplinary constraints imposed by that special text.
This elementary point is not universally accepted. In a celebrated account, Charles Howard McIlwain maintains that constitutionalism long predates that modern meaning. It is fundamentally a “set of principles embodied in the institutions of a nation and neither external to these nor prior to them.”1 The idea, therefore, does not derive from some formally adopted text; it is an expression of the rights and liberties that constitute the lifeblood of the political nation. In all its successive phases, McIlwain concludes, constitutionalism has only one essential quality: it imposes “a legal limitation on government” and in this respect it is “the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law.”2
It is not difficult to feel the force of McIlwain’s argument. The belief that constitutionalism rests on values that express the character of a people has long persisted. When Edward Corwin explained that the supremacy of the Constitution and “its claim to be worshipped” is founded on “the belief in a law superior to the will of human governors,” he was expressing the importance of this continuity of beliefs and values.3 And when Francis Wormuth argued that “the tradition of constitutionalism begins in ancient Athens and has had a long, interrupted, and irregular history” that now finds its expression in the “auxiliary precautions” advocated by the framers of the American Constitution, he too was celebrating that continuous lineage.4 Yet these claims are not specifications of constitutionalism as such; they are elaborations of the values of constitutional government.
For constitutionalism to be accorded a clear meaning, it must be acknowledged as a purely modern concept. Constitutionalism did not exist before the idea that the basic terms of the governing relationship could be defined in a foundational document. Searching for the intellectual origins of constitutionalism, scholars commonly arrive at the pioneering mid-eighteenth-century work of Montesquieu. Again, this is an error. While extolling the values of constitutional government, Montesquieu believed that no universal solution to the tension between order and liberty could be found. Concluding that each regime must determine its own form of constitutional government, taking into account factors like climate, geography, economy, and political traditions, he maintained that the success of its constitution depended on the vibrancy of its political culture, or what he called “the spirit of the laws.”5 Montesquieu gives us a theory of relativity; constitutionalism, by contrast, is a universalist philosophy. The true foundational text of constitutionalism is James Madison, Alexander Hamilton, and John Jay’s Federalist Papers, published in 1787.
Constitutionalism, then, is a theory concerning the role, standing, appropriate institutional form, and telos of a purely modern invention: the documentary constitution. It maintains that the form of government established by the constitution rests its authority on two great pillars.
The first pillar is that of representative government. In Federalist 63, Madison explains that this principle requires “the total exclusion of the people in their collective capacity” from the business of governing and the delegation of that task to a small number of citizens elected by the rest. “The people” are acknowledged as the authors of the constitution and the ultimate source of governmental authority. But, as he notes in Federalist 10, in order to “refine and enlarge the public views,” the actual tasks of governing must be entrusted to a representative body “whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.”
The second pillar requires the establishment of institutional mechanisms for limiting, dividing, and balancing the powers of government. This need for institutional differentiation is often presented as the doctrine of the separation of powers, a doctrine that Maurice Vile claims as “the most useful tool for the analysis of Western systems of government” and “the most effective embodiment of the spirit which lies behind those systems.”6
Although the institutional architecture of constitutionalism rests on these two crucial pillars, the concept of constitutionalism is not reducible to a specific institutional configuration. So we should not get hung up on the fact that in Federalist 51 Madison veers between advocating checks and balances on governmental powers and promoting a separation of powers. As Hamilton notes in Federalist 66, once the true purpose of institutional separation is appreciated, a “partial intermixture is … not only proper but necessary to the mutual defense of the several members of the government against each other.” Rather than reducing it to a doctrine concerning the institutional distribution of powers, constitutionalism is a theory that promotes a certain ethos of governing. The differentiation of functions and the imposition of checks and balances are both designed to constrain governmental power and maximize individual liberty.
If constitutionalism were conceived as a set of institutional safeguards to limit government, the criticism that it is an eighteenth-century theory reflecting the values of a bygone era would be compelling. After all, we no longer live in a world of limited government. Across the world and irrespective of the character of the regime, there is scarcely an area of civic life in which government’s reach is not felt. The challenges of limiting and directing government today are much more profound than those presented by a hereditary ruler exercising arbitrary power. And it is precisely because of the complexity of these challenges that constitutionalism has evolved and is now becoming so influential. Constitutionalism presents itself today as a method of advancing liberty in a world of total government.
What, then, is its basic template? The most rudimentary requirement of constitutionalism is that the exercise of political power is subjected to the discipline of a text. That text, the constitution, is drafted in the name of the people and designed to be comprehensive. It must contain the essential principles on which government is founded, the method by which it will be organized, and the powers it will possess—in short, noted Thomas Paine, “everything that relates to the complete organization of a civil government, and the principles on which it shall act, and by which it shall be bound.”7 The scheme is not random: it aims to ensure that government sticks to its proper purposes and protects liberty. But the theory extends beyond these basic requirements in three important respects.
The first supplement is that the constitution is intended to establish a permanent framework of government. One remarkable attribute of constitutionalism is that, although it founds the constitution’s authority on the fact that “the people are the only legitimate fountain of power,” there are “insuperable objections against the proposed recurrence to the people.” Madison’s objection to such recourse, he explains in Federalist 49, is that the constitution would thereby be deprived of “that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.” Regular recourse to the people would only excite the passions and disturb the public peace. The constitution must therefore be established as a permanent framework because only then can “the reason, alone, of the public … control and regulate the government.”
But how exactly is the “public reason” that controls and regulates government to be discerned? The answer is provided by a second requirement: that the constitution takes effect as the fundamental law of the regime. This was the major innovation of the American settlement. It provided an institutional solution to the problem of how to render the exercise of the powers of rulers, including their powers to legislate, compliant with the principle of the rule of law. The remedy was to establish the constitution as a type of higher-order law and to entrust to the judiciary the responsibility of acting as its guardian.
No legislative act contrary to the constitution could be valid, it was claimed, because the latter, expressing the authentic will of the people, must take priority over the former. This is the logic of delegated authority. To deny this, Hamilton explained in Federalist 78, “would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.” It therefore falls to the judiciary to police all governmental action to ensure its compliance with the constitution. To the objection that this assumes the superiority of the judiciary over the legislature, Hamilton answers that it merely supposes that “the power of the people is superior to both.” Unlike the other branches of government, the judiciary possesses neither force nor will but only judgment and is disciplined by being “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.”
Hamilton’s arguments appear less compelling once placed alongside Madison’s point that the constitution must establish a permanent framework. Claiming the constitution as the authoritative expression of the will of the people might be convincing with respect to those citizens who consented, but what of the will of subsequent generations? If the judiciary is indeed to be bound by strict rules and precedents, then constitutionalism begins to look like what Paine called “the manuscript-assumed authority of the dead.”8 How can the “requisite stability” be maintained while at the same time accommodating social evolution?
The second remarkable feature of constitutionalism, then, is not just that it establishes the constitution as fundamental law: it also entrusts to the judiciary an altogether novel task. The judiciary, mandated to follow precedents according to common law and to adhere to strict rules of interpretation in compliance with legislative will, is now also invested with the authority to discern what public reason dictates. Liberty, declaims Hamilton in Federalist 78, “can have nothing to fear from the judiciary,” which, in asserting its constitutional jurisdiction, is established as “the citadel of the public justice and the public security.” Constitutionalism leads to the emergence of a new species of law, that of constitutional legality. By virtue of this innovation, the rule of law is converted from the rule of rules into the rule of reason.
The third additional requirement builds on these first two elements. Constitutionalism is commonly thought of as differentiating between governmental tasks in order to establish a system of “limited government” and therefore as a theory about the design of the office of government. But it harbors much grander ambitions. Devised in a world where public and private, state and society, were just emerging as distinct from each other, constitutionalism evolves as a theory that aspires ultimately to transcend those divisions. And in the course of that evolution, it presents itself as a theory not just to limit institutions of the state but also to regulate the entire society. Constitutionalism advances a conception of collective self-government that transforms the very idea of democracy. Democracy is no longer to be conceived as an expression of the collective will of a people; it is reconfigured as an expression of the collective identity of a people and, critically, an identity that is permanently inscribed into the foundational principles of the constitution.9 According to the theory of constitutionalism, the constitution created by an exercise of democratic will comes to determine the very meaning of democracy within that regime.
In pursuit of this ambition, the constitution is converted from a political pact into a medium of societal self-organization. This shift, rarely articulated, has profound significance. It is most boldly expressed in Jed Rubenfeld’s book Freedom and Time. Acknowledging the ambition underpinning the theory of constitutionalism, Rubenfeld maintains that democratic self-government can no longer be realized either “by way of a politics of popular voice” or “by declaring new constitutional rules perfectly congruent with our present collective will.” This is because the constitution “continues to gather up generation upon generation of Americans into a single political subject” such that the people must now be conceived as the constitution’s trustees. Freedom comes to be understood simply as adherence to the fundamental commitments expressed in the constitution as interpreted and memorialized over time. “We can achieve liberty,” he concludes, “only by engaging ourselves in a project of self-government that spans time.” In this manner, Rubenfeld claims to have solved the counter-majoritarian problem. His solution requires us to treat constitutionalism as democracy.10
Democracy, Karl Marx once suggested, “is the resolved mystery of all constitutions.”11 Rubenfeld now trumps this with the claim that constitutionalism is the resolved mystery of all democracies. His argument most surely captures the world-historical significance of constitutionalism but, as I aim to show, it does so at the cost of eviscerating the modern idea of democracy.
These elements can now be drawn together to give a more precise specification of the concept. Closely associated with the emergence of modern documentary constitutions, constitutionalism identifies the model characteristics of, and ideal aspirations behind, the adoption of a constitution. The constitution, it is suggested, (1) establishes a comprehensive scheme of government, founded (2) on the principle of representative government and (3) on the need to divide, channel, and constrain governmental powers for the purpose of safeguarding individual liberty. That constitution is also envisaged (4) as creating a permanent governing framework that (5) is conceived as establishing a system of fundamental law supervised by a judiciary charged with elaborating the requirements of public reason, so that (6) the constitution is able to assume its true status as the authoritative expression of the regime’s collective political identity.
Constitutionalism is a discrete concept expressing a specific philosophy of governing. It should not be conflated with more general themes revolving around constitutional government or constitutional democracy. The promotion of constitutional government has a much longer history. McIlwain and Wormuth identify many of these practices but wrongly confuse them with constitutionalism. The practices of constitutional government continue to exert a guiding influence over many contemporary systems of government, including those of France, Sweden, and the United Kingdom, which do not adhere to the precepts of constitutionalism. Neither should constitutionalism be conflated with constitutional democracy. Attempts have been made to show that constitutional and democratic values are reconcilable, but so long as these values are in perpetual and productive tension with one another and recognized to be accommodated politically, constitutional democracy must be treated as a quite distinct regime. For similar reasons, the use of certain adjectival qualifiers, such as “popular constitutionalism,” “political constitutionalism,” and even “authoritarian constitutionalism,” are misnomers: their advocates advance arguments either about popular political agency or an authoritarian regime’s use of these instruments that are antithetical to the actual meaning of constitutionalism.12
Constitutionalism, then, can be understood only when treated as a singular philosophy of governing of universal significance. This contrast between the pluralism of constitutional government and the universalism of constitutionalism was keenly felt from the moment of birth of the modern constitution. It is thrown into relief by contrasting the Federalist arguments with those contemporaneously expressed by Thomas Jefferson. Adhering to the principle of popular sovereignty, Jefferson believed that since “the earth belongs to the living and not to the dead,” the people must retain the power regularly to review the Constitution and reaffirm their consent. He therefore proposed that the US Constitution contain a sunset clause according to which it must be renewed every generation, which—following the then accepted calculations—meant every nineteen years. If the regime’s fundamental law is indeed founded on the will of the people, then one generation should not possess the power unilaterally to bind another; to seek to do so would amount to “an act of force, and not of right.” Jefferson later explained that he was not advocating “frequent and untried changes in laws and constitutions.” Rather, he insisted that the powers and purposes of governmental institutions “must go hand in hand with the progress of the human mind.” The Constitution should not be held in “sanctimonious reverence” and regarded as “too sacred to be touched.”13
Jefferson foresaw the inevitability of constitutional innovation, recognizing that for the Constitution to retain its legitimacy it must be regularly ratified by popular assent. In this respect, he was asserting a basic principle of constitutional democracy, one that—contrary to constitutionalism—does not permit the elevation of the constitution from its useful role in establishing a stable governmental framework into a fixed object of worship. Whether the Federalist authors fully understood this is uncertain. They maintained that the Constitution rests on popular consent, forcefully asserting that the entire system rests on “the vigilant and manly spirit which actuates the people of America—a spirit which nourishes freedom, and in return is nourished by it.”14 But they also felt that Jefferson’s intervention could undermine the stability needed to establish and maintain the Constitution’s authority. Innovation through judicial interpretation, they implied, was a more secure means of adjusting to changing conditions, not least because—rather than fueling the passions—this method relied on “public reason.”
In contrast to a regime of constitutional democracy, the US Constitution is the original model of constitutionalism. This does not mean that it lacks democratic elements. Rather, it suggests that it was established and has evolved in accordance with the six basic criteria of constitutionalism. It has now imposed its authority as a comprehensive, fixed scheme of government in which the Supreme Court, through constitutional interpretation, is the principal medium of constitutional innovation and the Constitution itself is the most important symbol of national political identity. Whether this model of constitutionalism is sufficiently robust to maintain “the vigilant and [civic] spirit” needed to sustain constitutional government is a question for further consideration. But we should be in no doubt that it expresses a distinctive method of reconciling order and freedom in modern government.
In the late eighteenth century, the forces of industrialism, nationalism, and liberalism in an ever-quickening process of change shaped certain powerful social and political movements that have left an indelible imprint on the modern world. The modern concept of the constitution was one of their creations. Invented during this first phase of universal history, the constitution was a product of the late eighteenth-century Enlightenment revolutions in America and France. But because the French failed to contain their revolutionary momentum in any fixed constitutional form, it was only in America that the associated concept of constitutionalism took hold.
One reason for Europe’s relative failure to establish constitutionalism was its history of feudalism and absolutism. These legacies were so deeply inscribed in European societies that the struggles to establish new orders founded on liberty, equality, and solidarity were both long and intense. Consider only post-1789 France, whose history involved a continuous conflict between the forces of Revolution and Restoration, the outcome of which was only resolved after 1877 when the parliamentary advocates of the Third Republic prevailed over the will of a royalist president.15 Of more general significance is that the Enlightenment challenge to imperial forms led to the emergence of the modern nation-state, an entity that spawned a different relationship between state and constitution.
The modern nation-state, a corporate entity with a deeper and broader foundation than monarchy and feudalism, was constructed from a new type of national sentiment that derived from commonalities of territory, traditions, language, and religion.16 As much a cultural as a political phenomenon, the growth of nationalism invested the emerging idea of the “sovereign people” with a common political identity. And the cohesive power of nationalism created what in effect was a constitutional order of the state. Because these emancipatory nationalist movements enabled the people to acquire a clearer sense of themselves as a collective entity before their governmental arrangements had been drafted, the constitution was regarded as a phenomenon of secondary importance.
Circumstances in North America were rather different. The express purpose of early settlers to Britain’s North American colonies had been to escape feudalism and monarchical authority. Migrating as free people, they were imbued with the belief that they brought with them not just the ancient rights of the common law but also a long tradition of Anglo-Saxon liberties. Having successfully established settler regimes founded on Protestantism and republican ideals of self-government, they found the stability of their world undermined when the British Crown, seeking to manage its expanding empire more effectively, proclaimed imperial authority over its colonies. Maintaining that the assertion of hierarchical authority frustrated their rights as British subjects of Anglo-Saxon lineage, the colonists argued that the mother country had broken an implicit compact and had left them with no alternative but to vindicate their claims through a war of independence.
It was this fight for independence that launched the American experiment with constitutionalism. Given the challenge of uniting thirteen very different colonies in a novel federal arrangement, they were obliged to specify the terms of their union in a foundational document. And it is only in these unique circumstances that one could say the Constitution founded a nation and created a federal republic, a union of states that was not at that moment a state.17
The scale of their task should not be underestimated. Tensions had been heightened as early as 1772 when Lord Mansfield, Chief Justice of the King’s Bench, ruled that slavery was incompatible with the traditions of the English common law. If it were permissible in the colonies, this could only be because, as conquered territories, they derived their law not from the common law but from the Crown’s prerogatives. This ruling, notes Aziz Rana, challenged “both the future of slavery as a social institution and the vision of settlers as culturally superior to non-Anglo subjects.”18 Independence was felt necessary to ensure the continuation of a unique republican project that had been founded on conquest,19 and consolidated through slavery.20 The Constitution devised in this first phase of universal history thus sought not only to institute a republican model of government but also to legitimate the rule of conquerors,21 to protect a mode of human exploitation,22 and to advance what Jefferson called “the empire of liberty.”23
In a recent study, Paul Kahn has described how during the nineteenth century the American constitutional imagination was transformed from project to system. The revolutionary break was the moment when a new political order was envisioned as a constitutional project. The Constitution, drafted by an assembly and authorized by the political community, was conceived as the product of a collective political decision to shape the future. But if the aim of the Constitution was to establish a comprehensive system of government and realize the telos of constitutionalism, the specific intent of its original authors eventually had to fade into the background. “It makes no sense to speak of authorship with respect to a systemic order,” explains Kahn, because “systems are not the end of any particular subject’s actions.”24 Once its authority is consolidated, a system operates according to its own immanent principles of order and, having the capacity of self-regulation, can maintain itself against disturbance. A project speaks in the language of “we the people,” whereas a system jettisons authorial intention in favor of maintaining the integrity of a regime.
It would be wrong to think of this tension between project and system as a problem that can be entirely resolved. “The social scientist’s imagination of system,” suggests Kahn, “can no more displace our experience of project than the natural scientist’s imagination of causation can displace our experience of freedom.”25 But that is not to diminish the significance of the American ambition. The Constitution is conceived as a project to establish the authority of a system. As an expression of freedom, the project subordinates the social to the political, but once the Constitution’s authority is consolidated, the political must be subordinated to the social. The Constitution is drafted as a political project to create a governing order, but once its authority is established the Constitution becomes a self-sustaining system. Its guardians, the constitutional lawyers, need no longer see their role as discerning the Framers’ intentions; their task becomes one of making curative adjustments to maintain the system’s equilibrium.
The great pioneer of this project to establish a system was John Marshall. Serving as chief justice for over three decades until his death in 1835, Marshall became the dominating force in crafting the Constitution as a system of fundamental law.26 But this venture hit the buffers in the 1860s when a gulf was exposed between a project that protected slavery and an evolving system that acknowledged the implications of social and economic change. The Civil War that followed was not just another revolutionary upheaval. That it was mainly perceived as a conflict over competing interpretations of the Constitution indicates just how far the project had already advanced.27 By the end of the century, the sense that the Constitution was a systemic order evolving through experience had gained broad acceptance. And once the Constitution is conceived as the dynamic order of an evolving society rather than an authoritative text adopted by its founders, the basic ideals of constitutionalism have been realized.
During the first half of the twentieth century, constitutionalism was recognized as America’s unique contribution to the art of governing. By the end of that century Rubenfeld was promoting it as a universal theory, but during its first half it stood alone. Other states had adopted written constitutions but, as the US diplomat David Jayne Hill wrote in 1916, “In their attempts to imitate our system they have neglected to adopt the two really original and distinctive features of it, namely our renunciation of the absolute power of majorities over individual rights and liberties, and our idea of judicial authority as a means of preventing the overthrow of constitutional guarantees by mere majority legislation.”28 A further round of extensive constitution-making was undertaken by many of those engaged in the First World War, but with less than uplifting results: by the end of the 1930s, of the seventeen constitutional democracies formed from the entrails of European empires, the majority had collapsed and reverted to authoritarianism.29
Yet American constitutionalism itself was not immune from the social, political, economic, and technological changes of the times. In the interwar period, it faced a second crisis in which the tension between project and system resurfaced. “Believing in the approximate perfection of our system,” Hill had proclaimed in 1916, “the people of the United States have, in general, desired to maintain the stability of the Constitution, and so far it has been subjected to very little change.”30 But Roosevelt’s New Deal placed severe strains on that system’s commitment to limited government and free markets.
The New Deal ushered in fundamental changes to both governmental relations and the constitutional meaning of liberty, but for two reasons it did not bring about major structural change to the constitutional system. First, constitutionalism is not reducible to an institutional doctrine of the separation of powers and, second, even though it originally advanced a conception of liberty as the absence of external constraints, once established as a system, this conception of liberty could no longer limit its aspirations. Constitutionalism requires the Constitution to be a permanent, comprehensive scheme of government that maintains institutional differentiation and protects liberty. But to maintain its symbolic status as an expression of collective political identity, its judicial guardians must also be authorized to reinterpret meaning in the light of changing conditions. Like the Civil War, the New Deal was a dispute over constitutional interpretation.
Under the New Deal, the Constitution was reaffirmed neither as a “lawyer’s contract” nor a “layman’s document.” Capable of absorbing basic social and political change without formal amendment, the Constitution was acknowledged as a “charter of general principles” of “enduring wisdom.” The New Deal’s lasting impact was to strengthen both the Constitution’s permanence as a system and, pace Roosevelt’s criticisms of conservative judicial rulings, the Supreme Court’s vital guardianship function.31
In the aftermath of the Second World War, the seeds of constitutionalism were scattered not only over depleted European states but also across newly established postcolonial regimes. Most fell on infertile ground, but in two cases, those of Germany and India, the seeds managed to germinate and produce fruit. Their achievements are both impressive and instructive.
After the interwar experience, in which newly established constitutional regimes rapidly descended into totalitarianism, postwar constitutional reconstruction in Europe was a deliberative and reactive affair. In divided and demoralized Germany, responsibility for drafting the Basic Law—the Federal Republic’s provisional constitutional document—was entrusted to an assembly of delegates of the Länder. Working under the tutelage of the Allies, the document they produced was then ratified by the Länder governments alone. Determined to ensure that the failed experiment of Weimar was not repeated, drafters proposed a federal system, a more formal separation of powers, and a comprehensive catalog of basic rights. They also ensured that the core of the regime—the federal system and the protection of basic rights—was made invulnerable to constitutional change.32
The template of the Basic Law bore all the hallmarks of constitutionalism. It established a regime of “constrained” democracy that abolished the plebiscite and declared unconstitutional any political parties seeking “to undermine or abolish the free democratic basic order or to endanger the existence” of the state.33 It also made a significant innovation. Concerned that ordinary courts imbued in the formal traditions of civilian jurisprudence might not be sufficiently active in protecting constitutional values, the Basic Law established a Federal Constitutional Court charged with the task of guaranteeing the integrity of the system. This Court quickly gained authority as guardian of the order. Promoting the Basic Law as an “order of values” that through its “radiating effect” overcame the public-private division and shaped the character of the entire regime,34 it later became a model that many states transitioning to constitutional government would seek to emulate.
Under the Court’s supervision, the Basic Law quickly established itself as the most important symbol of the Federal Republic’s collective political identity. There is no clearer indication of the success of this project in constitutionalism than the fact that in 1989 the Basic Law was simply extended by treaty to encompass a reunited Germany. Conceived as a provisional measure that “shall cease to apply on the day on which a constitution freely adopted by the German people takes effect,”35 the authority of the Basic Law was such that it was felt to be too unsettling for the regime at the moment of reunification to expose the character of this German constitution to popular deliberation.36
Attempts at transplanting constitutionalism in the first wave of postcolonial states also had varying success.37 But one remarkable success story is that of India. The task of drafting a constitution for a vast subcontinent of over 350 million people, the great majority of whom were poor and illiterate and divided not only by territory but also by language, religion and caste, was immense. It was entrusted to a Constituent Assembly comprising delegates of provincial legislatures constituted on a restricted franchise. The outcome was a constitution that, running to 395 articles and eight schedules, is the world’s longest. This Constitution was adopted without ratification and entered into force in January 1950.
According to the catechism of American constitutionalism, the constitution should fix only a general framework and articulate certain basic principles; it should not “form a detailed legal code” because that type of document “could never be understood by the public.”38 But conditions in India were rather different. Reflecting these unique conditions, the Indian constitutional project rested on three fundamental objectives.
First, a strong centralized state apparatus able to provide leadership was felt to be required for the purpose of creating an Indian nation. Formally, a federal scheme was adopted, but the central government held the essential powers. Those responsible for drafting the new Constitution were mindful of the challenges they confronted in seeking to establish a democracy based on universal suffrage in a society whose members had not yet made the transition from subjects to citizens. They recognized both that the people had to be guided and that their legislative representatives remained in need of strong governing leadership. It was from this requirement of a high degree of centralization of power that the second objective followed.
The drafters were conscious of the problems entailed in adopting too detailed a code. Jawaharlal Nehru, who was to become India’s first prime minister, expressed concern that this would make the Constitution so rigid it could not adapt to change and would therefore be unlikely to endure. But B. R. Ambedkar, the chair of the drafting committee, explained its underlying rationale. “It is only where people are saturated with constitutional morality,” he clarified, “that one can take the risk of omitting from the constitution details of administration and leaving it for the legislature to prescribe them.” He emphasized that “constitutional morality,” by which he meant “a paramount reverence for the forms of the constitution,” was something that “our people have yet to learn.”39 The detail included in the constitutional text, Madhav Khosla explains, was intended to be “an instrument of political education” and a way “to liberate Indians from existing forms of thought and understanding.”40 That task included educating legislators on the limits of their powers. The second objective, of adopting the Constitution as a detailed code, was therefore felt to be necessary for the purpose of making Indians democrats.
The third objective of the new Constitution was to construct an image of the political subject as an individual rights-bearing citizen. This identity could perhaps be assumed in enacting a new constitution for a secularized Western regime at an advanced stage of social and economic development. In a traditional society shaped by religious and caste identities, it could not. The Constitution had therefore to assist with the task of liberating citizens from communal identities. This required not just the enunciation of civil and political rights but also action to address material conditions of social and economic disadvantage. It is for this reason that the Constitution included “Directive Principles of State Policy,” principles that provided guidance to both the legislature and executive on how they should discharge their responsibilities.
The Indian Constitution thus established a centralized system of authority founded on a differentiation of powers and a platform of basic rights of the citizen. In contrast to the rigidity of the US Constitution, it included a simpler amendment procedure, a provision that has been used more than a hundred times. But it is the realization of an additional—fourth—objective that provides the strongest evidence of the underlying project of constitutionalism. Not only has the Indian Constitution achieved its standing as a relatively comprehensive and permanent settlement, but its Supreme Court—affirming that the power of amendment cannot offend the Constitution’s “essential features” of democracy, equality, federalism, the rule of law, secularism, and socialism—has assumed the critical role of guardian of its “basic structure.”41 In India, “a vast range of political, administrative, and judicial matters have become constitutional questions that are routinely brought to the courts.” Indian constitutional law, the editors of The Oxford Handbook of the Indian Constitution conclude, “is interesting precisely because it has constitutionalized so much of Indian life.”42
Germany and India illustrate how in the postwar period and in very different conditions the seeds of constitutionalism were sown and grew into modern regimes in which the constitution becomes a crucial symbol of national political identity. The social, political, economic, and cultural conditions of these regimes could scarcely be more different. But these cases share one important feature: in each, the constitution was drafted at a critical moment of rupture in the history of the state. This is a moment at which either there was no prior history of self-rule on which to draw or it was politically impossible to derive guidance from earlier practices of self-rule. When a clean break with the past was required, the project of constitutionalism offered a path to a new world.
Germany and India were indicative of postwar possibilities, but it is only in the last three decades that constitutionalism truly has come of age. This period has seen a dramatic growth in the number of constitutional democracies. One reason has been the disintegration of authoritarian regimes in Central and Eastern Europe following the collapse of the Soviet Union in 1989. Together with the downfall of dictatorships in Latin America and, to a lesser extent, in Asia and Africa, these changes led to new constitutions being drafted at an unprecedented rate. Over the last thirty years, most of the world’s constitutions have either been newly adopted or radically amended.43 And as regimes have striven to renew their authority, they have sought to burnish their credentials as constitutional democracies.44 Since 1989, the number of regimes adopting written constitutions that institute a separation of powers, commit to the principle of the rule of law, provide for the protection of individual rights, and require the holding of free and fair elections has almost doubled. Almost two-thirds of the 193 United Nations (UN) member states are now classified as constitutional democracies.45
But this new wave of constitution-making is not the only, nor the most important, reason for the wider embrace of constitutionalism across the world. In both new and well-established constitutional regimes, the range of constitutional judicial review has extended dramatically and strengthened in intensity.46 Across the world, judges are now reviewing contentious public policy questions that a generation ago were assumed to be beyond their competence. This has been spearheaded by enhanced rights protection, especially with respect to issues of ethnicity, gender, language, and religion. But the jurisdictional reach of courts extends far beyond individual rights protection; the judiciary is now bidden to adjudicate a broad range of disputes touching on fundamental aspects of collective identity and national character. The constitutional court has now emerged in many parts of the world as the key institution for resolving many of their most contentious political controversies.
This movement, which affects both established and new constitutional democracies, is a novel phenomenon. Its purpose has been to subject ever more aspects of governmental decision-making to the structural constraints, processes, principles, and values of the constitution. It aspires to bring the practices of constitutional government adopted across a range of regimes into alignment with the precepts of constitutionalism. This signifies the emergence of a new movement: that of constitutionalization. This term expresses the ways in which the variable practices of constitutional government are reshaped in accordance with the universal precepts of constitutionalism.47
In his 2004 study of these developments, Ran Hirschl identified six “scenarios of constitutionalization” that have emerged since the Second World War: reconstruction (in Germany, but also Japan and Italy); decolonization (India, but also affecting many former British colonies in Africa and Asia); transition from authoritarianism to democracy (Greece, Portugal, and Spain in Europe; many Latin American states; South Africa in Africa); dual transitions to market economy and democracy (post-Soviet bloc states in Central and Eastern Europe); the incorporation of international standards into domestic law (Denmark, Sweden, Britain); and a residual category of no apparent transition scenarios in which constitutional reforms have been introduced without basic changes to the political regime (Mexico, New Zealand, Israel, Canada).48 Hirschl’s work shows not just the increased pace of constitution-making but also how ever more extensive aspects of social and political life are being regulated by the principles and values of constitutionalism.
This is an extraordinary development. In 1979, Gordon Schochet introduced an influential collection of essays on constitutionalism by noting that, because the notion of “limited government” is of marginal relevance to contemporary challenges of governing, constitutionalism had ceased to be an important field of political study. “Expanding population coupled with growing economic disparities, the need to conserve natural resources, and the regulation of deadly technologies,” he explained, “require more decisive and resolute action than limited constitutional government can provide.”49 The scale of these challenges has certainly increased since Schochet wrote but, remarkably, so too has the perceived importance of constitutionalism as a solution. And the reason is that constitutionalism is no longer seen as a useful institutional fix in establishing a system of limited government; it is now recognized as a distinctive, ambitious, and wide-ranging philosophy of governing.
What explains this dramatic reversal of fortunes? Any explanation requires a broader analysis. In his great trilogy on “the long nineteenth century,” Eric Hobsbawm wrote an account of European history ranging from the Age of Revolution (1789–1848), through the Age of Capital (1848–1875), to the Age of Empire (1875–1914). Drawing on a remarkable range of economic, social, and political material, Hobsbawm’s periods run in parallel to those of the American founding, the Civil War crisis, and the Reconstruction. They therefore span the period from the adoption of the Constitution as a project to establish an “empire of liberty” to its establishment as the immanent order constituting the political identity of the American Empire. Hobsbawm later supplemented this work by writing a “short history of the twentieth century,” designated the Age of Extremes (1914–1991).50 This spans two distinct periods in the history of constitutionalism: the first, running to the end of the Second World War, in which America stands alone in the world as a constitutionalist regime, and the second, the postwar period in which the seeds of constitutionalism are scattered and propagated in a small number of states.
Hobsbawm’s historical survey stops at the contemporary period: the fifth age. This age, opening in 1989, marks the era in which constitutionalism comes into its own. In labeling the contemporary period the Age of Constitutionalism, my account does not accord with Hobsbawm’s scale, nor does it accept all the assumptions of his analysis.51 The point is to provoke reflection on the contemporary significance of constitutionalism by situating it in a broader context and noting that constitutionalization is associated with a series of profound social and economic developments.
What I am calling the age of constitutionalism is attributable to developments in the second phase of modernity. By modernity, I mean a mode of organized social life that emerged in Europe during the eighteenth century and which, by extending its influence across much of the world, marks the first phase of universal history. Generated by the processes of industrialization and urbanization and extended by colonialization, modernity eroded many of our traditional ways of social life. Max Weber called this a process of “disenchantment” in which metaphysics was demystified by science, religion was displaced by secularism, customary ways were suppressed by bureaucratization, and the imagination was supplanted by rationalism.52 Modernization led to the consolidation of the authority of the nation-state and, following revolutionary ruptures, to the emergence of the constitution as the key instrument for constraining the state’s powers and enhancing its authority.53
If modernity is signified by a questioning of established ways, the process is likely to eventually provoke questions about the foundations of modern societies. This questioning quickens in pace after 1989 and leads to the emergence of a new phenomenon—that of “reflexive modernization.”54 In this second phase of modernity, many solid structures of modern societies are shaken. Economic security bolstered by industrial regulation and full employment, social security provided by a welfare state, cultural security protected by the distinction between citizens and others, stable family structures, and vibrant political parties based on established class structures—all enter a state of flux. Even the founding political principles of modernity—liberty, equality, and solidarity—become objects of reevaluation and disenchantment.55 And not surprisingly some of the basic premises of the modern constitution, such as its template of institutional differentiation and its promotion of negative freedom, are caught up in this process.
The impact of these political changes is most visible in the effects of globalization on the standing of the nation-state. The accelerating expansion of global trade, investment, technology, and communication networks erodes the authority of government as the capacity of nation-states to regulate their own economies is diminished. As states become locked into rapidly developing global networks, they are obliged to participate in the work of international regulatory institutions whose rule systems impose structural constraints on them. Consequently, the enhanced constitutionalization of domestic governmental action commonly takes place at precisely the moment when more and more governmental action is conducted in transnational, supranational, or international arenas. Constitutionalization intensifies just as the proportion of domestic governmental action affected by it diminishes. Far from signaling an age of constitutionalism, then, it might be argued that these trends mark its twilight.56
But this would be to overlook another dimension of change. Continuous modernization leads to a conviction that, wherever it is located, governmental action must be constitutionally authorized if it is to be legitimate. Globalization has been tracked by movements advocating the constitutionalization of such international institutions as the UN, the World Trade Organization (WTO), and the European Union (EU). During the second phase of modernity, this leads to the fixed coordinates of constitutionalism being loosed from their moorings. Nurtured in the crucible of the modern American republic, constitutionalism extends its horizons and becomes a set of self-sustaining principles that legitimate all forms of governmental decision-making. In this second phase, the six basic precepts of constitutionalism—comprehensiveness, representation, power differentiation, enduring framework, judicial guardianship, and expression of a regime’s identity—become reflexive.
If the driving force of constitutionalism during the first phase of modernity was liberalism, that of its second phase is neoliberalism. The liberal model had focused on the powers of the modern state, specifically on the powerful Western states which, through imperialism and their dominant influence on the global economy, controlled the governments of much of the rest of the world. Constitutional government with liberal principles disciplined the powers of Western governments at home while leaving them free to exert hierarchical authority over dependent states abroad. With the gathering pace of decolonization in the postwar period, however, this liberal project had to be extended to incorporate constitutional constraints into the governing structures of newly independent states. Constitutionalism became a double-edged philosophy. Promising the transformation of these societies by instituting values of liberty, equality, and solidarity,57 it sought at the same time to ensure a regime that protected property and the institutions of the market.58
Liberalism was supplanted by neoliberalism once its advocates realized that markets, far from being self-regulating organisms, required strong governmental institutions to flourish. In this second phase, the project became that of establishing constitutionalism on a worldwide scale. This ambitious institution-building project depended on the promotion of constitutionalism as a system within nation-states. It needed to establish the constitution of a representative democracy as a comprehensive structure of institutionally differentiated governmental agencies ruled by a body of fundamental law and policed by the judiciary, a development that gave voice to the progressive notion of aspirational constitutionalism. But worldwide constitutionalism also required the establishment of a global network of institutions to advance both liberal values and the market conditions underpinning them. This network—which includes the UN, the International Monetary Fund, the World Bank, the WTO, an increasing number of independent central banks, and regional bodies like the EU and the North American Free Trade Agreement—operates reflexively to institute a cosmopolitan regime of what might be called Ordo-constitutionalism. Recognizing that markets do not evolve spontaneously but require supportive governmental action to thrive, Ordo-constitutionalism seeks to ensure that all institutions exercising governmental power—whether national or international, public or private—adhere to liberty-preserving constitutional values. It aspires to uphold the basic values of classical constitutionalism in a globalized and extensively governed world.
Democratization has therefore tended to be accompanied by the constitutionalization of political regimes. Constitutionalism, devised as a set of principles for a new republic founded neither on “accident or force” but on “reflection and choice,” has evolved into a set of principles instituting a global order founded on rather abstract principles of rationality, subsidiarity, and proportionality. This global project has yet to establish its authority as a system and remains a contentious undertaking. Indeed, in some regimes it is experienced not as a matter of choice but of force and necessity.59 For those in the vanguard, it is advocated as the only method of ensuring that the democratic impetus does not lead to a disintegration of the world.60 But there can be no doubt that in this reflexive form, constitutionalism has become the most powerful philosophy of governing shaping the world today.
Constitutionalism, I have suggested, has been widely perceived as a positive phenomenon largely because it has never been closely analyzed. It continues to circulate as both abstract and venerated, not least because it can be inscribed with whatever values the heart desires. In seeking a more precise specification, I identify constitutionalism as a governing philosophy that must be distinguished from the general values underpinning constitutional government. The concept was formulated at the founding of the American republic, steadily gained in authority through the development of the American empire, and came to be recognized as America’s unique contribution to modern constitutional thought.
Had it remained a distinctively American experiment in government then, peculiar though it might seem to outsiders, that governing philosophy would be more difficult to criticize. To each their own, we might say; if it works for Americans, then it is not for others to denounce its practices. Over the last seventy years, however, the precepts of constitutionalism have gained a more wide-ranging influence, and during the last three decades an altogether new impetus.61 Constitutionalism has been rejuvenated, acquiring in this new reflexive form the capacity to reshape regimes across the world. It is this aspiration to extend constitutionalism beyond the patrimony of a particular regime and to repackage it as a universal philosophy that must be closely examined. Presenting one window onto reality, constitutionalism is converted into an abstract ideology, a striving for power.
This is the basic argument of the book. Its objective is not so much to examine social and economic developments that have shaped these changes; important though they may be, my primary aim is to capture the spirit of constitutionalism. I therefore focus on the implications of these changes in the meaning of constitutionalism on legal thought and political practice. Their significance, I suggest, cannot be fully appreciated without situating these innovations in modern historical context.
Part I, therefore, explains how constitutionalism first emerged as an influential theme in modern political thought. Designed as the centerpiece of an Enlightenment philosophy of governing, the modern constitution was fashioned as a liberal ideology that sought to protect established rights by instituting a system of limited government (Chapter 1). These aims were nevertheless threatened by structural changes in government following the expansion of the franchise; the rise of democracy, it appeared, signaled the decline of constitutionalism (Chapter 2). Having been designed to impose restraints on government, it was soon realized that the constitution could maintain its authority only by drawing on more basic narratives of the collective political identity of “the people,” an insight that confounded the ambitions of constitutionalism’s original advocates (Chapter 3). Consequently, attempts to revive the values of constitutionalism in the face of continuous governmental growth revealed its unrealistic character: either the role of the state must be limited to that of a custodian of a formal rule system or the entire modern worldview of political organization had to be overthrown. These radical consequences have been avoided only by reconceiving constitutionalism as a project to discipline government by requiring it to protect markets and individual freedoms (Chapter 4).
As classically formulated, constitutionalism is incompatible with mass democracy. But is it possible that its core values can still be realized in a world of administrative government? Many who believe so advocate the virtues not of constitutionalism as such but of constitutional democracy. Part II, therefore, examines the concept of constitutional democracy. Its two basic correlative principles—which express the competing values of public autonomy and private autonomy, of democracy and rights, and of will and reason—are first assayed separately as constituent power (Chapter 5) and constitutional rights (Chapter 6). Whether they are reconcilable is then directly addressed (Chapter 7). The conclusion reached is that the two principles can be reconciled only when constitutional democracy is reconstructed as constitutionalism. But such a rights-based reconstruction, I argue, renders constituent power redundant, and for constitutional democracy to remain distinct, not just the equal importance but also the irreconcilable character of these two principles must be acknowledged. Only then can the regime’s open, dynamic, and indeterminate qualities be maintained. And the fact that this tension must be managed prudentially through political deliberation and accommodation and cannot satisfactorily be reconciled in law signifies that constitutional democracy is a discrete regime that differs from constitutionalism.
Part III, then, examines how, with the rejuvenation of constitutionalism in the second phase of modernity, the role of the constitution is transformed from that of an instrument of collective decision-making into a symbolic representation of collective political identity (Chapter 8). This development is driven by a “rights revolution” that subjects governmental action to comprehensive review through abstract principles (Chapter 9) and this engenders novel methods of interpretation as courts give meaning to the regime’s “invisible constitution” (Chapter 10). This idealized, invisible, and totalizing constitution dissolves the boundary between constitutional reason and political necessity, between norm and exception, leading to the emergence of a new species of law that draws as much on political as on legal rationality (Chapter 11). Revealing the constitution as a particularity masquerading as a universal, this transformation also drives a quest for inclusion advanced through constitutional litigation (Chapter 12). And as constitutionalism’s universal aspirations acquire prominence, its principles are harmonized across states, extended to international institutions, and presented as a self-sustaining system of values (Chapter 13).
The book concludes with reflections on why constitutionalism has been reinvigorated, how constitutional democracy is being degraded, and why constitutional democracy remains our best hope of maintaining the conditions of civilized existence.