Constitutionalism vs. Constitutional Democracy

Guest Blogger

For the Balkinization symposium on Martin Loughlin,  Against Constitutionalism (Harvard University Press, 2022).

Yasmin Dawood

In a sweeping and provocative new book, Against Constitutionalism, Martin Loughlin argues that the concept of constitutionalism has evolved from a relatively limited set of principles into a full-blown, totalizing philosophy of government. Against Constitutionalism is a brilliant book—an erudite study not only of the historical evolution of the concept of constitutionalism but also of the contested meanings of associated concepts, including sovereignty, constituent power, and the state. The book is anchored by an extensive engagement with a wide array of philosophers, theorists, and legal scholars. While it is impossible to do justice to the breadth of Loughlin’s arguments in this short essay, there is no doubt that Against Constitutionalism is a must-read book for anyone who is interested in the fate of constitutional democracy.

What is distinctive about Against Constitutionalism is that it provides a systemic account of constitutionalism by carefully unpacking the evolution of this concept since the Enlightenment. Loughlin notes that constitutionalism is usually taken to mean that the “main characteristics of a regime are defined by a founding text that is elevated above the ordinary cut and thrust of politics.” Additional ideas under the constitutionalism umbrella include limits on arbitrary power, the rule of law, limited government, and the protection of rights. But for Loughlin, constitutionalism is best understood as a distinctive ideology that not only provides the rules by which government is regulated but also encompasses the very essence of collective identity. He argues that constitutionalism is “now an over powerful theory of state building, rapidly becoming the world’s most influential contemporary philosophy of government.” Loughlin’s ambition in the book is to “capture the spirit of constitutionalism” and to show that constitutionalism “has become the primary medium through which an insulated elite, while paying lip service to the claims of democracy, is able to perpetuate its authority to rule.”

For Loughlin, constitutionalism encompasses the following six precepts: the constitution “(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 in its most robust form is found in the United States, but its elements are also evident in other nations such as Germany and India.

As suggested by the title of the book, Loughlin presents a sustained critique of the perils and pathologies of constitutionalism. In particular, he argues that constitutionalism has been wrongly conflated with constitutional democracy. To be sure, the tension between constitutionalism and democracy has been the focus of much debate. Several scholars have argued in favour of democratic politics and against judicial review.[1] Yet Loughlin makes a particularly forceful case against constitutionalism, arguing that a global movement of “constitutionalization” is afoot, whereby the “variable practices of constitutional government are reshaped in accordance with the universal precepts of constitutionalism.” This development has culminated in the emergence of the “invisible constitution,” an idealized set of supposedly universal aspirations that are “harmonized across states, extended to international institutions, and presented as a self-sustaining system of values.” As a result of the emergence of this global, cosmopolitan constitution, the people are “disaggregated if not entirely dissolved.” Indeed, constitutionalism  “carries the danger of draining the lifeblood from democracy, not just as a system of collective decision-making but, perhaps more importantly, as a way of life.”

But how does constitutional democracy work on Loughlin’s account? While the book spends less time describing a properly functioning constitutional democracy than it does critiquing the concept of constitutionalism, it does specify certain features of constitutional democracy. According to Loughlin, the concept of constitutional democracy has two basic principles: (1) constituent power; and (2) constitutional rights. The key question is which of these principles has primacy: “the democratic principle of equal citizen participation in the processes by which they are governed” or the principle of protecting the citizen’s basic rights. In a constitutional democracy, Loughlin argues, this tension is kept alive through political action and deliberation rather than bring reconciled by judges. The book identifies additional features of constitutional democracies, including meaningful elections, a “culture of active political engagement facilitated by a free press, vibrant civil society associations, and transparency in public decision-making.” Constitutional democracy is also marked by the “principles of popular authorization, …political equality, and accountability.” Additional features include “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.” 

Loughlin acknowledges, however, that few existing democracies would meet these requirements. Newly established constitutional democracies often have the requisite institutions but lack the norms, values and political culture that sustain democracy. Even mature democracies are facing various challenges as legislatures and political parties continue to weaken and lose authority. For Loughlin, this loss of political authority is connected, at least in part, to constitutionalism: the “reprocessing of democratic will-formation through the language of rights—the rights of speech and association, the right to vote, and the right to political equality—leads to individualization and thus significantly undermines the ability of collective organizations like political parties and interest groups to build coalitions of interests.” In addition, Loughlin suggests that studies of democratic decline have not considered whether such phenomena as populism are actually a reaction, at least in part, to how constitutional democracies have been undermined by constitutionalism; that is, “[m]any 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.” 

For this reason, Loughlin asserts that strengthening the institutional mechanisms of constitutionalism as a response to populism would only intensify the problems that led to populism in the first place. This intriguing argument raises the question of what it would take to rejuvenate democracy outside of constitutionalism. Although it is not the ambition of the book to provide an answer to this question, Loughlin’s arguments push us to consider how and whether democracy can be strengthened without turning first to constitutionalist mechanisms. What might such an approach entail?

Another question is whether the costs of constitutionalism outweigh its benefits. Consider the following thought experiment: Where would the United States have ended up without constitutionalism? Would the civil rights movement have achieved its goals? While we might agree that the Supreme Court does not usually take the lead in progressive social change,[2] we might also be persuaded that constitutionalism was nonetheless an important factor in the creation of a more equal society. However, the Supreme Court’s right-ward turn in recent years on an array of issues including voting rights, campaign finance, and abortion has arguably taken the shine off constitutionalism, at least for those who hold a socially progressive vision of the law.

Loughlin’s arguments would also seem to present a powerful challenge to a distinction that is often drawn between judicial decisions that enhance democracy and judicial decisions that undermine democracy. It is striking that, unlike many analyses of American politics, the content of the courts’ decisions does not seem to be determinative in Loughlin’s account. That is, contra Ely, judicial review is not justified by decisions that are arguably democracy-enhancing. On this view, the Warren Court’s expansion of democratic rights is problematic because it further entrenches the ideology of constitutionalism. But surely we would want to distinguish between the Warren Court’s expansion of democratic rights and the Roberts Court’s retraction of them? To put the point somewhat differently, is there such a thing as “good” constitutionalism? Constitutional democracies that have not succumbed to constitutionalism would no doubt still retain some constitutional elements, but it is not entirely clear what these elements might be (apart from the idea that courts should not automatically have the final word).

But perhaps the main problem is not constitutionalism so much as an overly powerful judicial branch? In much of the book, constitutionalism is tied to the judiciary. But would constitutionalism pose the same risk to constitutional democracy, on Loughlin’s view, if it were de-coupled from the judiciary? For instance, scholars have argued for popular constitutionalism—the idea that the constitution belongs to the citizenry and not just to courts.[3] If it were citizens or legislators, and not judges, fleshing out the meaning of constitutional rights and provisions, would this count as democratic as opposed to constitutional activity?

Regardless of which conclusions one reaches with respect to these conundrums, there is no question that Against Constitutionalism is a compelling and thought-provoking book that invites a serious re-evaluation of the fundamentals of the constitutional and democratic order. It is essential reading for students of constitutional democracy. 

Yasmin Dawood is a Professor of Law and the Canada Research Chair in Democracy, Constitutionalism, and Electoral Law at the University of Toronto, with a courtesy appointment in the Department of Political Science. You can reach her by email at yasmin.dawood@utoronto.ca.