Balkinization: Constitutional Ideology

Constitutional Ideology

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

For more than two and a half decades, the Yale Law School has held a Global Constitutionalism Seminar that beings together jurists from constitutional courts around the world to talk about issues of common interest and concern. The conversation among the various judges is often lively and quite interesting, and despite the differences among the various legal systems, which are regularly noted, the participants approach the seminar's ever changing topics with the assumption that there is a shared language of constitutionalism, if not always common assumptions and ideas.

The Global Constitutionalism Seminar is the embodiment of what Martín Loughlin opposes in his book, Against Constitutionalism. Specifically, he opposes the idea that there is a common language of constitutionalism in which judges are the principal actors and the crucial defenders of democracy, liberty, and equality.

The book pivots on a distinction between constitutionalism, which is an ideology or belief system, and constitutional democracy, which is a political ordering. The basic elements of the ideology are that 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." (p. 7).

The book's central claim is that you can have a constitutional democracy without the ideology of constitutionalism and that the ideology of constitutionalism has infiltrated and undermined constitutional democracy. In particular, constitutional democracy does not require constitutionalism because a political constitution (1) can be regularly revised or replaced; (2) does not have to take the form of fundamental law but can be a set of customs, practices, and conventions along with various statutes; (3) does not require the judiciary to be its central guardian; (4) does not have to depend on a universal conception of public reason but can rather be tied to the local and parochial concerns of a nation or people, and; (5) does not have to embody or represent the regime's political identity but can simply serve as a workable system for doing politics.

Two things are worthy of note about this formulation. First, the notion of a constitutional democracy without constitutionalism sounds a lot like the U.K. before the beginning of the twenty-first century. This is no surprise given that Loughlin is an expert on the U.K. Constitution and that he is concerned that recent developments have moved the U.K.'s judiciary closer to the ideology of constitutionalism. So one way of understanding the book is a plea for countries like the U.K. not to go further down the constitutionalist road before it is too late.

Second, once you think of constitutionalism as an ideology--that is, as a specially motivated way of looking at constitutions rather than what constitutions just are--it opens your eyes to the special way that constitutional democracy has developed around the world following World War II. In particular, it explains why there would be something called the Global Constitutionalism Seminar, where the participants view themselves as engaged in a more or less common enterprise rather than a set of very distinct enterprises that have nothing special to say to one another. It also further highlights the role of what Ran Hirschl has called "juristocracy" and the role of judicial elites around the world as part of a larger elite discourse of politics and economics that has shaped the late twentieth and early twenty-first centuries.

It is not difficult to see constitutionalism as an ideological cousin if not handmaiden or ally of neoliberalism and/or globalization. What is especially interesting is that it is an ideology that is shared on both the left and the right, so that there are both left-wing and right-wing versions of constitutionalism. (The Yale Global Constitutionalism Seminar, you will not be surprised, often features examples of the left-wing version) And because the ideology of constitutionalism cross-cuts the left/right divide, there are both left-wing and right-wing critiques of constitutionalism as well.

The right wing critiques of constitutionalism criticize judges for forcing progressive notions of secularism, equality, and sexual freedom on unwilling populations of ordinary people. The left-wing critiques criticize judges for enabling neoliberal capitalism and growing disparities of wealth, and for imposing retrograde and even reactionary visions of society on unwilling populations of ordinary people. Even if these two critiques are often at cross-purposes, they both aim at the same target, namely, the idea that constitutional court judges--aided and abetted by a mysterious thing called public reason that transcends each individual constitution but is nevertheless supposed to emanate from it--are unaccountable ruling elites who employ the ideology of constitutionalism to justify their unaccountable power.

At one point in the book Loughlin tries to connect recent populist mobilizations around the world to popular discontent with constitutionalism. But it is likely that the causes of these mobilizations are far deeper, because these movements have arisen in very different government systems with very different kinds of judges and judicial roles. That does not mean, however, that judges, like other privileged elites, cannot be a convenient symbol of populist anger.

You can see obvious overtones of contemporary left-wing critiques of the U.S. Supreme Court in these pages. Yet it's important to recognize that Loughlin is critical of courts outside the U.S. as much as he is of the American example. In fact, the Roberts Court, with its originalist/traditionalist pretensions is actually pretty distant from Loughlin's conception of judges engaged in public reason. Indeed, the conservative supermajority's insistence that it is interested in the distinctly American views of the Framers/Founders makes it in some ways an anti-cosmopolitan court, quite different from the primary targets of Loughlin's critique.

The book's greatest weakness is the flip side of its greatest strength. Having identified an ideology of constitutionalism that is distinct from constitutional democracy, and need not accompany it, Loughlin does not offer a very distinct picture of what constitutional democracy is. In a sense, that is inevitable given his views about constitutions and democracy.

His view of constitutions is that they are local enterprises through which societies negotiate their values and interests. As Loughlin explains: “Democracy persists through continuous and active political deliberation over the right and the good. Conflict and dissent are constitutive features that must be preserved, and they are preserved by ensuring that the meaning of these basic and contestable values remains the subject of continuous political negotiation through democratically constituted and democratically accountable processes. This feature of democracy places structural limitations on the degree to which it can be sublimated into constitutionalism.” (p. 108).

As soon as we start identifying constitutions with permanent features of governance, or with fixed constitutional guarantees of liberty and equality, we are well along the road from constitution democracy to the ideology of constitutionalism. That is why it is difficult for Loughlin to identify a set of necessary and sufficient conditions for constitutional democracy-- the framework itself has to be subject to continuous negotiation in democratic politics. The problem is that constitutional democracy can't get off the ground and operate over time without some basic rules, and indeed, constitutional democracy can't be democratic without some rules that are not easily evaded that protect democracy from elite rule on the one hand, and authoritarian demagogues on the other. This fact by itself doesn't justify constitutionalism-- it just suggests that it's hard to excise at least some aspects of constitutionalism from a working constitutional democracy. The first three elements of the initial definition of constitutionalism seem important to a working constitutional democracy, even if one can dispense with the second three elements, which seem to be Loughlin's primary concern.

For these reasons, this is not a book that offers a prescription for what should be in a constitutional democracy-- Loughlin's view is that it all depends on the particular country and people at issue. But whatever constitutional democracy is, he suggests, it's not a system in which judges are very powerful or in which the constitution is central to national identity.

But this assumption raises three additional problems with identifying constitutionalism (and juristocracy) with strong judicial review and constitutional democracy with weak (or no) judicial review. First, federal systems seem to require more judicial review than unitary systems do. Second, you can have a good deal of juristocracy with purely statutory guarantees if national politics is even modestly gridlocked (or legislatures simply have too much to do); or if political elites find it convenient to delegate messy or coalition-splitting issues to the courts, as they often do. Third, as soon as you have a big administrative state, which many modern democracies have, you get inevitable tendencies towards juristocracy as judges get to decide whether administrative/executive actions are consistent with law. In the United States, for example, the Roberts Court has flexed its muscles in administrative law decisions as much as in constitutional ones. Thus, even if we did away with strong judicial review, we might have juristocracy. Loughlin's best reply to this, I think, is (1) that less juristocracy is always better than more; and (2) that constitutionalism has additional pathologies that go beyond a concern with juristocracy.

One of the book's signal strengths is that it traces the development of the ideology of constitutionalism to changes in governance that emerged in the twentieth century; namely, the rise of what Loughlin calls "total government" that regulates an increasing set of areas of social life. But the development of governance has not stood still. It has been changing rapidly during the last part of the twentieth century and the first decades of the twenty-first. Some characteristic features are (1) increasing privatization; (2) the rise of global digital companmies that surveil and govern global populations, albeit in different ways that territorial governments; (3) public private partnerships and new flexible forms of government regulation that employ private bureaucracies and rely on various degrees of self-regulation by private actors; (4) the national surveillance state; and (5) governance through data collection and algorithmic decisionmaking by both public and private actors. The emerging Algorithmic Society, as I have called it, promises to produce forms of governance as different from the earlier regulatory and welfare state of the twentieth century as the twentieth-century forms differed from those of the eighteenth and nineteenth centuries.

Loughlin's book synthesizes and explains the constitutional ideology that emerged with the regulatory and welfare state up to the early years of globalization. It is likely that the idea of constitutionalism will further mutate in the Algorithmic Society, because its forms of governance make considerable use of privately-owned global technology companies and global digital infrastructure. Figuring out how constitutions and their justificatory ideologies will change as a result is a project for the future.

Posted 9:30 AM by JB [link]