Constitutional Democracy Without Constitutionalism

Guest Blogger

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

Julie C. Suk 

Martin Loughlin’s Against Constitutionalism begins with the compelling, if surprising insight that constitutionalism is neither a necessary nor sufficient feature of constitutional democracy.  Loughlin presents an important and much-needed intellectual history of constitutional theory, from the American revolutionary constitutionalism that grew out of Enlightenment political theory to constitutionalism that remade continental Europe after World War II and the defeat of Nazism. While Loughlin maintains that “constitutional democracy remains our best hope of maintaining the conditions of civilized existence” (24), the reinvigoration of constitutionalism may be a reason for pessimism rather than optimism.

            Much depends, as Loughlin recognizes, on how constitutionalism and constitutional democracy are defined.  Constitutionalism is the commitment to disciplining the exercise of political power with a written text.  The text limits and directs government and future lawmaking, with the United States offering the paradigm example. Constitutionalism should not be conflated with constitutional government, Loughlin argues, noting that many political regimes, including those in France, Sweden, the United Kingdom, can be characterized as constitutional democracies even though precepts of constitutionalism are absent from the practices of constitutional government. The key feature of constitutional democracy, as Loughlin puts it in the book’s conclusion, is to maintain the tension between two basic concepts of freedom: “freedom as collective self-rule and freedom as individual autonomy.” (196).  American constitutionalism, as evidenced by increasing failures of collective self-rule and the trajectory of the U.S. Supreme Court’s rights jurisprudence, may suggest that the rigidity and idolatry that often accompany constitutionalism actively undermine this core project of constitutional democracy. While the written constitution may have begun as an instrument to end the excessive and illegitimate exercise of political authority by hereditary monarchy, it morphed into a symbol of modernity and collective identity, a civil religion. In the United States, the culminating brew of originalism, veneration of the Founding Fathers, and excessively empowered judges (known as “juristocracy”), is proving toxic to the rights most people value in the twenty-first century, where constitutionalism protects guns but not abortions. Juristocracy impedes healthy processes of democratic self-government on a range of polarizing political issues.

            But the United States is not Loughlin’s only example of the tension between constitutionalism and constitutional democracy. His account of German constitutionalism, from the work of late-nineteenth century legal theorists to the postwar Constitutional Court, draws out subtler versions of the tensions between constitutionalism and constitutional democracy.  While American liberal constitutionalism has been synonymous with limited government, German “ordo-constitutionalism” adapted constitutionalism to the era of big government, Loughlin notes.  Ordo-constitutionalism envisioned an entire constitutional system designed to sustain free markets and individual liberty through governmental action, where liberal constitutionalism can no longer survive if it remains committed to limited government. Ordo-constitutionalism took root in Germany after World War II, in part as a reaction to the failures of the Weimar constitution, a social-democratic set of textually prescribed principles that could not prevent the rise of monopoly capitalism or Hitler. The “constitutional settlement” that reconstituted Germany after Nazi rule established a comprehensive constitutional order—a system of values that permeates the entire political and legal regime.  Its features include an “eternity” clause that makes certain constitutional amendments unconstitutional, such as any amendment repealing the guarantee of human dignity.  In an effort to guard constitutional democracy, the German Basic Law includes many countermajoritarian features that may appear antidemocratic, including the power of the Constitutional Court to ban political parties that aim to undermine the free democratic basic order or endanger the existence of the nation (art. 21), in addition to that court’s power of judicial review (art. 93).

            While the strong state at the core of German ordo-constitutonalism can be sharply contrasted with the American constitutionalism of limited government, in Loughlin’s eyes the German model also allows constitutionalism to prevail over constitutional democracy.  Both limited-government constitutionalism and ordo-constitutionalism tend towards juristocracy, empowering courts to pronounce on constitutional meaning while persuading everyone, including themselves, that what they are doing is law as distinct from politics.  The people are ruled by a text they did not write and which constrains majoritarian democracy, which is given meaning by judges they did not elect. Yet, the constitution becomes a symbol of social integration, and gives the people an identity that they embrace and defend, what Habermas calls “constitutional patriotism.”  This patriotism replaces the unsavory patriotism of ethnonationalism. Countries that liberated themselves from dictatorship, whether after World War II or after the fall of the Berlin Wall, adopted this form of constitutionalism and gave way to what Loughlin calls “the age of constitutionalism,” characterized by protections for human rights and constitutional courts that enforce those legal rights against democratic politics.  Ultimately, the courts oversee the political process in ways that unduly shape its outcomes, making law on such matters as campaign finance, political corruption, gerrymandering, and the like (135).

In the last sentence of the book, Loughlin writes, “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.” (202). Loughlin’s rejection of constitutionalism as a general matter is less compelling than his critique of the juristocracy wrought by American constitutionalism in particular. When faced with the actual jurisprudential output of constitutional courts in Europe, beyond the work of continental constitutional theorists, the case for constitutionalism to support constitutional democracy comes into sharper focus. Yes, the line between law and politics is murky, allowing courts to present their conclusions as simple questions about the rule of law, when questions of constitutional legality are obviously contestable political propositions. But juristocracy exists on a continuum, as does constitutional democracy.  That continuum is sometimes described by the language of “strong-form” and “weak-form” judicial review, as Mark Tushnet, Rosalind Dixon, and many other comparative constitutional scholars suggest. For all of the U.S. Supreme Court’s most brazen strikedowns of completely sensible legislation, there have been constitutional adjudications in Germany, Ireland, and many other countries that nudged the legislature towards a subsequent improved realization of the values expressed in constitutional text.  The dialogue between the German Constitutional Court and the Bundestag on abortion between 1974 and 1995 is one significant example, eventually producing an abortion statute that permits (and funds) abortion in most of the circumstances leading women to seek one, while rejecting “abortion on demand” in all imaginable circumstances out of respect for unborn life.  That political compromise, I have suggested, is preferable to the juristocratic Roe v. Wade and the purportedly democratic approach allowed by Dobbs v. Jackson Women’s Health. Rights adjudication need not end a conversation; it can initiate a dialogue and collaboration with the democratically elected lawmaking bodies at the forefront of any “rights revolution.”  From Stephen Gardbaum’s new comparative political process theory to Aileen Kavanagh’s collaborative model, constitutionalism can lead to milder forms of “juristocracy” that facilitate democratic lawmaking guided by constitutional principles and purposes.

            Last week, the German Constitutional Court invalidated a state law providing inadequate wages and benefits to prisoners for labor performed while incarcerated, on the grounds that the remuneration was insufficient to foster these inmates’ reintregation into society.  The Constitutional Court held that the dignity and personality provisions of the German Basic Law require all punishment to serve the goal of reintegration.  It follows that any law regulating punishment, such as by establishing wages for prison labor, must be designed with this goal in mind.  Remuneration must thus be adequate to foster reintegration. At the same time, the court delayed the date upon which the existing law ceases to have effect to June 2025, giving the legislature two years and a range of legislative options to rethink what it would mean to remunerate prison labor if consciously directed by this goal. Such delayed remedies, common in many jurisdictions outside the United States, is one of many ways in which ordo-constitutionalism can operate in a more collaborative, dialogical, and democratic mode.

            Loughlin also suggests that the French Conseil constiutionnel is “the product of a tradition that rejects judicial review” (128), exemplifying constitutional democracy rather than constitutionalism. But commentators have questioned the French Constitutional Council’s light touch in April when it was asked to resolve the democratic crisis occasioned by the government’s adoption of a law raising the retirement age without a vote in the National Assembly. When it became clear that a National Assembly majority would not coalesce to adopt the proposal, Macron and his Prime Minister invoked Article 47.1, which allows them to pass a law on the financing of social security without a vote in the National Assembly, as long as a vote of no confidence occurs within 24 hours as provided under Article 49.3. The French constitutional court upheld executive power, declining to read Article 47.1 narrowly consistent with constitutional scholars’ view of Article 47.1 as having a limited application to end-of year budget bills to avoid a government shutdown, not appropriate for broad-based reforms like the raising of the retirement age. The proposal to raise the retirement age was widely resisted by over 1.5 million people protesting throughout the nation. Other scholars have viewed that the Conseil constitutionnel’s decision as a missed opportunity to promote constitutional democracy by developing a familiar legal doctrine—the abuse of right—to curb the executive’s deployment of articles 47.1 and 49.3 when it clearly distorts the purpose of those provisions. Historian Pierre Rosanvallon urged that Macron violated the spirit of the Constitution’s democratic institutions, if not the text, of the Constitution, viewing the Government’s use of Article 47.1 as gravely antidemocratic under the circumstances presented. But the French constitutional judiciary declined to stem the rise of executive power and the resulting threat to constitutional democracy in France.

            These two very recent decisions emerged after the publication of Against Constitutionalism, but neither was anomalous for these courts.  They—and many other examples—suggest that the mix of constitutionalism and juristocracy, despite its toxic potential, can nourish constitutional democracy in limited doses. If constitutional democracy really is our best hope of maintaining the conditions of civilized existence, abandoning constitutionalism in all its manifestations may be unwise.

Julie C. Suk is Professor of Law at Fordham University School of Law. You can reach her by e-mail at Jsuk4@fordham.edu