For the Balkinization symposium on Martin Loughlin, Against Constitutionalism (Harvard University Press, 2022).
Paul Gowder
Martin Loughlin has produced a magisterial work of constitutional theory, which weaves intellectual history and an incisive analysis of our present condition into a highly challenging case against modern conceptions of constitutional governance. However, when the erudition (which I hasten to repeat, is immense and valuable) is stripped away, the core seems to me to be a familiar argument, one that has been a recurrent theme of left critique of constitutional law for decades at this point.
On a theoretical level, the core argument is stated most directly in chapter 8: in a post-nationalist world, we ask our constitutions to both be the framework of democratic governance and a source of shared social meaning and identity. But those two aren't compatible---the former requires a kind of thin and legalistic constitution suitable for interpretation through standard judicial processes, while the latter requires broad assertions of collective principle, which, if they're to be interpreted by judges, undermines democratic contestation over the common good. The United States and Germany are offered as the core examples of this phenomenon, and Habermasian constitutional patriotism (especially when internationalized into his recent cosmopolitanism) can be taken as Loughlin's bête noire.
One standard answer to this sort of argument, which when reduced to the level of practical political outcomes rather than high theory tends to hinge on the alleged incompatibility of constitutional judicial review of individual rights with democratic popular sovereignty, is the objection that such a complaint ignores the embeddedness of judges within social and democratic processes. Hints of this objection appear throughout the dialectic in the second half of the book (where Loughlin discusses contemporary scholars, as opposed to the historical project of the early chapters). For example, Loughlin observes that some scholars have criticized Ran Hirshl's account of juristocracy for ignoring the impact of social movements (134). However, he doesn't directly answer such views, beyond at one point dismissing Post and Siegel's theory of democratic constitutionalism as baseless "faith" (149) .
The reason for Loughlin's low opinion of theoretical frameworks which integrate social movements and political action into constitutionalism becomes clear as we approach the end of the book. The following passage (177) is the crux of the issue. Loughlin explains that:
social reform still depends on political movements imposing their will on political parties that must then win control of the government to redistribute resources. But constitutionalization shifts the action away from legislatures and governments into courts and away from collective will-formation toward individualized rights-based claims.
The foregoing is, I take it, Loughlin's answer to Post and Siegel-esque democratic constitutionalism. Loughlin's claim is not that courts are somehow hermetically sealed from social movement politics, it's that the modalities of courts are deficient ways of doing politics, primarily because of their laserlike focus on the vindication of individual rights. This facilitates, for example, the "neoliberal" abuse of legal tools to reinforce the supposed rights of international capital over the democratic self-determination of peoples who wish to regulate economic activity, to pick an example which is particularly salient in the last chapter.
This all sounds very familiar, now, right? In the immortal words of Morty Horwitz's rejoinder to E.P. Thompson:
Unless we are prepared to succumb to Hobbesian pessimism "in this dangerous century," I do not see how a Man of the Left can describe the rule of law as "an unqualified human good"! It undoubtedly restrains power, but it also prevents power's benevolent exercise. It creates formal equality—a not inconsiderable virtue—but it promotes substantive inequality by creating a consciousness that radically separates law from politics, means from ends, processes from outcomes. By promoting procedural justice it enables the shrewd, the calculating, and the wealthy to manipulate its forms to their own advantage. And it ratifies and legitimates an adversarial, competitive, and atomistic conception of human relations.
At bottom, this is Loughlin's critique of constitutionalism too. By privileging judicially enforced rights-claims, it disables politics and entrenches an individualistic conception of who is entitled to enforce policy outcomes. The error comes from abandoning what Loughlin calls "constitutional democracy," which puts politics, not individual rights claims, in the drivers seat, in favor of "constitutionalism."
The problem is that, as far as I can discern from the intellectual history which dominates the first seven or so chapters (although I confess that I may have lost the thread at points), the fall of "constitutional democracy" in favor of "constitutionalism" really follows from the post-war settlement and the rise of contemporary inclusive liberal states in which the traditional sources of social solidarity, like shared racial, ethno-national and religious identitity, are ruled out. That's why constitutions suddenly find themselves with the job of supplying a foundation for shared social meanings in addition to just setting forth the rules of the game. (That being said, if you believe Finley's old essay on "The Ancestral Constitution," they've being intermittently taking on this job for some millennia.)
Thus, I fear that when you poke at it too hard, "constitutional democracy" bears an exceedingly troubling resemblance---I won't say identity, but the resemblance is clear---to old-fashioned nationalism. Loughlin tells us, quoting Mill, that constitutional democracy is most plausible among a people "united among themselves by common sympathies" (196) and that the lack of this among many states today "is not just because they are populous, culturally diverse states with complicated histories and a wide variety of governmental arrangements. The crucial point is that all too often they have been invested with the institutional trappings of constitutional democracy without the underpinning political culture to sustain it." (197)
While the foregoing isn't unalloyed nationalism, since the diversity takes a back seat to the notion of "political culture," the diversity clearly plays a role in Louglin's diagnosis of the problem. Then on the very next page Loughlin runs together the growth of economic inequality and migration in a way that poses the unfortunate risk of giving unintentional validation to some of the worst of the critiques of liberalism from the political right. There, we're told that "the wealthy no longer seeing themselves as part of a territorially bounded political nation" combines with "historically unprecedented levels of migration into advanced democracies" to undermine the sense of people-ness necessary for constitutional democracy.
There are many on the extreme political right who, I fear, would take far too much comfort in this kind of talk. In the hands of a Patrick Deneen or a John Eastman, it might shade all too readily into dog-whistles about "rootless cosmopolitans." If the reader doesn't yet share my worries, permit me to pile on a little bit: the very next move Loughlin makes in the conclusion is to suggest that the illiberal movements represented by (inter alia) the regimes in power in Poland, Hungary (Deneen's buddy), and India (198-199) "might be reasonable responses to how constitutional democracies have been undermined by the extending influence of constitutionalism." If those kinds of regimes---filled as they are with Islamophobia, press censorship, and all kinds of other infamies---represent the path to the renaissance of "constitutional democracy," then count me right out.
It would be uncharitable to read Loughlin's argument as an endorsement of those far-right movements. Loughlin knows, as any serious observer must, that nationalist constitutions have historically been an ineluctable pathway to social conflict and oppression (and violence). This awareness comes out clearly in his discussion, in chapter 12, of colonial constitutions ("exclusionary constitutionalism") of the past and present.
As I read Against Constitutionalism, rather than endorsing the right-wing nationalist movements that are plaguing so many polities across the world (including America's), Loughlin is offering the grim diagnosis that these movements are inevitable on our current trajectory. Constitutionalism has led us into neoliberal domination of our governments and rampant inequality, and the right has somehow captured the discursive space for critique of neoliberal constitutionalism (I guess thanks to the unfortunate fact that Muslims, Jews, and immigrants are easier to blame and scapegoat than corporate executives). So if we continue with constitutionalism, we're dooming ourselves to an ever-expanding series of Donald Trumps. We must find a new way.
Loughlin doesn't tell us what that new way might be. But from the foregoing discussion at least two paths—not necessarily to the restoration of some kind of pre-modern "constitutional democracy" that supposes a thick (and inevitably nationalistic) conception of the political, but to something other than the Scylla of neoliberal "ordo-constitutionalism" or the Charybdis of Viktor Orbán—suggest themselves to me. And both are represented by the title of this blog post: *where did the left go in all of this?*
On the more radically democratic, anti-constitutionalist, side, one option might be a kind of left populism. Loughlin doesn't discuss grassroots leftist movements. But, traditionally, many of those movements have been much less infected with the ethno-nationalist impulses driving an Orbán or a Modi. (I don't say immune---many left movements have had substantial elements of racism and anti-Semitism in particular---but less guilty at least than the right.) In the 20th century, examples of more-or-less cosmopolitan left movements might include socialist governments in Latin America (to the limited extent the U.S. let them stick around) as well as post colonial movements such as Pan-Africanism. It's not obvious to me that those movements had a constitutional position (or that any positions they had would be endorsement-worthy), as such; for that reason they may rightly be out of the scope of Loughlin's analysis. But it is at least puzzling, and worthy of some further examination, why the anti-constitutionalist movements that capture the world's attention today tend to be from the ethno-nationalist right alone.
More interestingly to me is the prospect of a genuinely leftist constitutionalism. By genuinely leftist, I mean in particular to identify the possibility that the individualist character of the phenomenon that Loughlin describes as constitutionalism may only be contingent rather than necessary. Can there be a non-individualist constitutionalism, and could such a beast, if it's possible, redeem the promises of Post and Siegel-esque democratic constitutionalism or Habermasian constitutional patriotism by permitting the judicial vindication of rights without privileging individual-oriented ways of bringing about social change over collective-oriented ways---and hence without disabling movement politics?
I think those possibilities exist, and have been realized at least in potentia in both the past and the present. One example comes from the time of the civil rights movement. As I described in my last book, Black Power organizations such as the Nation of Islam and the Black Panthers frequently used the language of American law, including of constitutional law, to frame collective organizing and resistance to white supremacy. Consider the following demand made by the Panthers:
We want all black people when brought to trial to be tried in a court by a jury of their peer group or people from their black communities, as defined by the Constitution of the United States. We believe that the courts should follow the United States Constitution so that black people will receive fair trials. The Fourteenth Amendment of the U.S. Constitution gives a man the right to be tried by his peer group. A peer is a person from a similar economic, social, religious, geographical, environmental, historical and racial background. To do this the court will be forced to select a jury from the black community from which the black defendant came. We have been, and are being, tried by all-white juries that have no understanding of the 'average reasoning man' of the black community.
There's a sense in which this is an "individual rights claim"—it invokes the 14th amendment, it focuses on the individual criminal defendant trying to defend themselves. But there's a more important sense in which it is a claim to collective rights—the use of the language and institutions of individual rights to claim that Black *communities* ought to have a more robust role in criminal trials. To some extent, we can see some of the modern constitutions as left-constitutionalist inheritors of left-populist ideals along similar lines. South Africa's post-apartheid constitutional settlement is particularly interesting in this context—its constitutional court enforces collective as well as individual rights, such as cultural rights through Section 31 of its constitution.
In the modern era, the environmental justice movement has greatly advanced the non-individualist and anti-neoliberal use of constitutionalist methods of social activism. Environmental law scholars and litigators in the United States have long advocated for doctrinal innovations like expanded notions of standing in order to make it possible for collective interests in ecosystem preservation to be elevated to the same legal level and then vindicated on the same terms as capitalist interests in resource extraction rights. And at least one state has famously included this in the text of its constitution---I speak, of course, of the rights granted to nature itself in Ecuador's constitution.
Regardless of whether constitutional innovations like those in Chapter 7 of the Ecuadorian constitution are effective in restraining extractive global capital, the fact that they exist indicates that the connection between the judicial enforcement of rights and neoliberalism isn't quite so unbreakable as Loughlin fears. We could enforce collective rights, including rights against wealth and resource extraction, through contemporary processes of constitutional adjudication. We just... don't.
It seems to me that the reason that the judicial enforcement of individual rights has so often facilitated the expropriation of the wealth of the world's poor by the world's rich isn't because of any inherent property of constitutional judicial review or rights qua "constitutionalism," but simply because the rich tend to have a lot of power. When countries like the United States enjoy the kinds of global hegemony that confer on them dominant negotiating power in trade treaties, the world quite naturally finds itself with institutions like the World Trade Organization dispute resolution system which permit multinational corporations (whose managers are very frequently American) to set aside domestic legislation. But it doesn't, in the final analysis, seem all that plausible to interpret this as a consequence of some ideological structure called "constitutionalism." It's just good old-fashioned power.
Paul Gowder is Professor of Law and Associate Dean of Research and Intellectual Life, Northwestern Pritzker School of Law. You can reach him by e-mail at paul.gowder@law.northwestern.edu.