Saturday, June 18, 2016

Clouds Over the Project of Liberal Constitutionalism? -- II

Mark Tushnet

Suppose, as I argue, none of the proposed policies said to threaten liberal constitutionalism actually fall outside the range of reasonable specifications of the principles that define liberal constitutionalism. How could their adoption nonetheless be a threat?

One reasonably obvious possibility is that, though each change individually is compatible with liberal principles, somehow they interact in ways that produce threats to liberal constitutionalism. (Adrian Vermeule's discussion of "constitution as system" is sensitive to these interaction effects.) An example would be a change in libel law making recovery for defamation of public figures easier, coupled with the assignment of fact-finding to judges whose tenure is simultaneously changed from life-time to medium-term renewable. That combination would probably make it easier for a president to intimidate newspapers who might otherwise publish critical stories (though there's no guarantee).

One problem with the "interaction" account is that there will (often? always?) be a mismatch between one or more of the changes said to produce troubling interactions. Consider the example in the preceding paragraph. One can imagine the change in judicial tenure being embodied in constitutional language, but it's quite unlikely that the "libel" specification would be so embodied. Rather, it would be embodied in a statute, or in judicial interpretation of some general provision[s] (free expression, individual dignity). So, it seems to me, it's hard to get a normative handle on what exactly goes wrong when two changes -- one embodied in a constitution's language, the other not -- interact.

Maybe I'm wrong about that, though, and the "interaction" account does show how individually reasonable changes can, when aggregated, be a real threat to liberal constitutionalism. But, as I've suggested, making the account work requires spelling out how the interactions would work. And, looking at the Hungarian and Polish examples (and at what Trump has said, to the extent that one can tease specific proposals out of his statements), its not clear to me that one could spell out the interactions. Mostly, the proposals seem to me a grab bag of things that annoy the authoritarian-populists (to adopt a useful correction from the comments).

The next post will conclude with some reflections on the reasons some might want to look for something like an "interaction" account.


Such proposed laws don't just interact with other laws, proposed or already enacted. They also interact with general and legal culture.

For instance, we have introduced laws which require transparency, and found that they interact with political culture to produce extra-legal retaliation against people to donated to certain causes. The law itself didn't constitute retaliation, but it enabled it.

Even though they don't have to cause it as a matter of legal logic, there's the potential for these changes to increase the frequency of SLAPP lawsuits. That has to be a consideration.

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