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