Constitutionalism: For and Against

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

Martin Loughlin
 
Since one purpose in publishing Against Constitutionalism (AC) with Harvard was to maximise the chance of it being read by American constitutional scholars, I cannot be other than delighted with the reviews. The care taken by these leading jurists in both presenting and engaging with the book’s basic argument is more than I anticipated. I must therefore begin by thanking the reviewers for their critical appraisals. They have given me a great deal to think about, much of which I will be unable to address adequately if I am to keep my response within sensible bounds. I will nevertheless respond to the most important points of criticism, organized according to what I perceive to be the main themes.
 
Constitutionalism: practice or ideology?

I should begin by explaining the relevance of practice to my argument. Joseph Fishkin suggests that I too readily identify constitutionalism with a particular expression of American constitutional practice. This expression is one that he and others have criticized, but he emphasizes that US history is much more complicated. This I readily concede. But it was never part of my objective to present an account of the history of constitutional practice. The book was not intended to offer a nuanced account of developments in the USA, nor in Germany, India, South Africa, France or other regimes discussed. It is not a study in comparative constitutional practice but an attempt to identify constitutionalism as a specific ideology, that is, a way of imagining political order. It examines the influence this type of symbolic representation of a political regime exerts in today’s world. The USA must form a central element of this study because, as I argue, constitutionalism is the unique contribution it has made to the modern theory of government. But my aim in considering US constitutional history is solely to indicate how the main features of this ideology are derived from its dominant modern discourse.

 
No history of a regime can be convincingly presented as a coherent narrative, let alone one of continuing progress.  But this is precisely what ideologists seek to do. They draw on the power of the imagination to account for the regime’s historical evolution in order to guide action in the face of present choices and future possibilities. They present a symbolic representation of the ideals that are assumed to bind the nation. Is this not the way the American Creed does its work? This is how the essential precepts of constitutionalism confer meaning on the American system of government, providing official endorsement to a story of individualism, freedom, equality, and democracy. But it is also capable of masking a more complicated history, one of imperial ambition, institutionalized racial hierarchy, and structured inequality.
 
The merits of American constitutionalism

In response to that type of claim, Yasmin Dawood raises a challenging counterfactual: where would the United States have ended up without constitutionalism? I accept that the 1787 settlement was a logical consequence of bringing together 13 former colonies into a federal scheme. And I accept Jack Balkin’s point that federal systems require more judicial review than unitary systems. But since I adopt the interpretative method of seeking to understand what is going on rather than searching for some ideal normative theory, what might have been cannot be part of my exercise. As I suggest in the book, if the arrangement works for Americans then, however peculiar it might seem to outsiders, it is not for us to denounce those practices. That said, things might indeed have turned out differently. The Bill of Rights, for example, was not part of the initial scheme, Jefferson and his disciples persistently argued (unsuccessfully) against making a fetish of the Constitution, and the more restrained methods of review advanced by Thayer, Holmes and Frankfurter might, in different circumstances, have gained more traction.

But this is not Dawood’s point. Rather, it is that constitutionalism, especially during the Warren Court era, was ‘an important factor in the creation of a more equal society’. That is, there may be ‘such a thing as “good” constitutionalism’. I resist endorsing that claim. It was, after all, owing to the influence of constitutionalism that, following Reconstruction, a discriminatory caste system was embedded in the American system of government. Fishkin criticises me for ‘never squarely discuss[ing] the fact that Reconstruction Republicans sought to re-build the regime entirely around ‘legislative power and legislative duty, not courts’. But my understanding is that this caste system materialized precisely because the political branches failed properly to enforce that settlement, leaving the Court to issue a series of restrictive rulings which subverted those political reforms (AC 165-6).

To be sure, 60 years later the Court took its first tentative steps to unravel a system that they themselves had authorized and which had made a mockery of the Creed. And while welcoming this judicial reversal, let’s not overlook the geo-political imperative, by which I mean the hypocrisy of the US presenting itself as a beacon of democracy and rights in the third world while its domestic regime instituted a judicially sanctioned system of racial discrimination.[1] As an outsider observer, I cannot help but be struck by the fact that virtually all the Warren Court landmark rulings – not just on school desegregation, but also on arrest, prison conditions, the death penalty, electoral redistricting, and welfare benefits – arose from the severe and discriminatory treatment dealt to a black underclass. Rather than celebrating these rulings as ‘democracy-enhancing’, they might more appropriately be seen as tardy recognition that the regime had been systematically denying African Americans the most basic conditions of democratic membership. Tardy, I would add, because of the powerful influence that constitutionalism exercises over American legal and political thought.

Paul Gowder also takes up Dawood’s theme and suggests that we can indeed imagine a ‘good’ constitutionalism. This he labels ‘a genuinely leftist constitutionalism’, which would be ‘non-individualist’ and which would permit ‘the judicial vindication of rights without privileging individual-oriented ways of bringing about social change over collective-oriented ways’. But the examples he offers – the rhetorical usage of American law by the Black Panthers or the actual performance of ‘transformative constitutions’ in South Africa and Ecuador – are hardly reassuring. As Martin Luther King noted in A Testament of Hope, ‘justice for black people will not flow into society merely from court decisions, nor from the fountains of political oratory’.[2]
 
Power and mystification

Gowder extends his critique by making a more general claim. He suggests that my argument that the course of contemporary trends is ‘a consequence of some ideological structure called “constitutionalism”’ is obfuscation. ‘It’s just good old-fashioned power’. Or, as his essay title states: ‘It’s Power, not Theory, that Keeps the Left from Having its own Constitutionalism’. To my mind, this claim rests on a somewhat simplistic appreciation of power and the way it operates.
The book’s main thesis is that constitutionalism has emerged as such a powerful global force because of certain deep seated social, economic, and cultural changes. During the second phase of modernity advanced societies have been reshaped as knowledge economies driven by a globalizing form of capitalism. Balkin calls this the Algorithmic Society, a society driven by technological developments that blur the public-private distinction and promote individualism. Whatever else this foretells, it is leading to a significant reconfiguration of the relationship between knowledge and power. There is, suggested Michel Foucault, ‘no power relation without the correlative constitution of a field of knowledge, nor any knowledge that does not presuppose and constitute at the same time power relations’.[3] The rise of constitutionalism in its reflexive form, I argue, involves a repackaging of relations within the field of political knowledge in the light of changing power relations. Language is manifestly not just a means of communication but also a tool of power. Such power acquires form as ideology, on which basis I claim that constitutionalism in its contemporary reflexive form has become ‘the most powerful philosophy of governing shaping the world today’ (AC 22).

Gowder doesn’t think it is so complicated: ‘We could enforce collective rights, including rights against wealth and resource extraction, through contemporary processes of constitutional adjudication.  We just... don’t.’ I am surprised, then, that he wants to align my position with Horwitz’s rather crude critique of Thompson’s argument in Whigs and Hunters. Thompson would not have bought Gowder’s argument. He recognized that law is a medium through which power conflicts are fought out but, as a democrat, he had no faith in the role of judges as agents of radical political change. That, he’d say, was pure mystification.
 
Constitutionalism or juristocracy?

This brings me to a common theme across various essays: that my concern is not with constitutionalism as such but with juristocracy. It is said that I identify ‘constitutionalism (and juristocracy) with strong judicial review’ (Balkin), that ‘the judiciary is so central to the argument that at times Loughlin uses the word “constitutionalism” interchangeably with “constitutional judicial review”’ (Fishkin), and that ‘the main problem is not constitutionalism so much as an overly powerful judicial branch’ (Dawood). I understand the point, but it is misconceived. Strong judicial review, or juristocracy, is by now a well understood phenomenon and is obviously a significant feature of the contemporary trend I have been criticizing. But it is an error to reduce my argument about constitutionalism to one against juristocracy because, once again, it is born of the attempt to conflate an ideology with a practice.

As I show in the early chapters of the book, constitutionalism is an ideology that long predates the emergence of what is now called strong judicial review. In its classical form, it instituted a regime of limited government. Erected on a public-private distinction, it envisaged a set of constraints on the legitimate range of public action so that individual liberty might flourish. Its basic precepts were first articulated in this classical form. Constitutionalism promoted a vision of the written constitution as presenting (1) a comprehensive scheme of government, founded on the principles of (2) representation and (3) differentiated powers and which was intended to establish (4) a permanent governing framework as (5) a body of fundamental law, so that (6) the constitution could be seen to express the regime’s collective political identity. It is this symbolic representation of the character of the political regime, not the specification of the judicial role (which is incidental in this formulation) that makes constitutionalism an ideology.

Constitutionalism quickly established itself as the American regime’s ruling ideology. It is at work as much in Dred Scott, Plessy and Lochner as in Brown, Roe and Citizens United. But to maintain its influence it must be able to offer an account of society’s immanent development and, with the emergence of administrative government, its authority became strained. This generated a moment of crisis during the 1930s which eventually led to the rejuvenation of constitutionalism in the postwar period. Fishkin is right in claiming that more active judicial review (what he calls ‘the court-enforced Constitution’) arises only in the mid-twentieth century. But this is an evolution within the established ideology of constitutionalism. It impresses the judiciary with the duty of innovative interpretation of the Constitution’s meaning as an expression of the regime’s (changing) collective identity. But this innovation is in conformity with the precepts of constitutionalism. Once in the business of imposing limited government, constitutionalism now operates to legitimate a regime of extensive government by, for example, judicial extension of the Bill of Rights to the states and their promotion of affirmative action.

The judicial role has been further transformed in the contemporary era of global constitutionalism, but it is the ideology not the practice that confers legitimacy. To think otherwise is to fall into the trap of thinking that such developments are simply a power grab by the judiciary (another illustration of a one-dimensional view of power). The structural changes now taking place make the challenge more complicated than that.
 
Constitutionalism or constitutional democracy?

Another common theme of the essays is that although I seek to defend constitutional democracy against constitutionalism, the former is not as well developed as the latter. As Balkin accurately notes, the problem is that the book ‘pivots on a distinction between constitutionalism, which is an ideology or belief system, and constitutional democracy, which is a political ordering’. This is not to say that constitutional democracies do not have underpinning ideologies: the British constitution rests on a set of narrative tropes that legitimate the regime,[4] and Pierre Rosanvallon’s studies have examined change in French political ideologies since the Revolution.[5] But my point is that constitutional democracies are variable regimes with differing ideological underpinnings, whereas the ideology of constitutionalism, though nurtured in the US, has become universal.

That, perhaps, is too simple; a key part of my argument, after all, is that the contemporary processes of constitutionalization are now working to reshape constitutional democracies as constitutionalist regimes. Balkin thinks so, arguing that the lack of a detailed account of constitutional democracy is ‘the book’s greatest weakness’. Julie Suk skilfully pursues this point by packaging constitutionalism not as ideology but as practice. Claiming that some constitutional courts have operated to bolster democracy, she emphasises that ‘juristocracy exists on a continuum, as does constitutional democracy, … sometimes described by the language of “strong-form” and “weak-form” judicial review’. I’m tempted at this point to invoke Maitland’s argument that lawyers are skilled at drawing distinctions in kind where others see only differences of degree. But Suk’s point deserves a more considered reply. 
I begin by endorsing Sandy Levinson’s defence of my position: that I am ‘not against the idea of “a constitution” per se’, which must contain clear rules about who has authority to govern, on what terms, and how they are called to account. I would go further in that the constitution should include a statement of basic rights that government must protect. Indeed, I think that once a documentary constitution is adopted, courts have an important role to perform in ensuring that governmental bodies keep within the jurisdictional limits of their lawful authority. So how does constitutional democracy differ from constitutionalism?

In the USA, the challenge faced by instituting constitutional government soon went askew. ‘Never forget’, declared Marshall CJ in McCulloch (1819), ‘that it is a Constitution we are expounding’. But the wrong message was received. Rather than acknowledging the Constitution as the outline of a political settlement that judges should be circumspect in interpreting, they eventually came to believe that Marshall was giving them carte blanche to engage in creative interpretation and, in the guise of constitutional adjudication, to rule on the most pressing and contentious political matters of the day. Once they had drunk at the well of constitutionalism, they came to believe that the Constitution laid down a permanent and comprehensive scheme of fundamental law that it was their duty to enforce. Far from conceiving the Constitution as a rudimentary political settlement born of particular historical circumstances, they assumed that they were uniquely equipped, through an exercise of reason, to rework it as a comprehensive scheme that expressed the basic values of American society.

This required the judiciary to conjure into existence a novel species of law owing more to political than to legal rationality. After all, abstractly formulated rights and fundamental principles contain intrinsic value conflicts that necessarily entail the exercise of political judgment. The constitutional court assumes a political jurisdiction and, as Carl Schmitt recognized, in so burdening it, we endanger it. If the court keeps within the bounds of legal reason, it can be of service to constitutional democracy. If it acts according to the precepts of constitutionalism and maintains its authority, it creates a structure that constrains democracy in the name of liberalism. If it becomes seen as an institution that makes political decisions, it not only loses its own authority: it also undermines that of the regime. Acknowledging this last point, Fishkin suggests that as constitutionalism extends its influence ‘it may also have planted the seeds of the political forces that ultimately keep it in check’. We shall see, though the cases of Hungary and Israel he mentions offer illustrations of what happens when those checks do not work as effectively as they might.

We can now return to Balkin. He contends that once 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’. My reply is that it is not the institutional structures that identify constitutionalism: it is the mindset. The critical issue is the scheme of symbolic representation adopted to confer meaning on those structures. Constitutionalism now extends its influence across the world because societies are being transformed in ways that destabilize existing governing arrangements, leading to an attempt to restore authority by embracing this (contentious) scheme of symbolic representation.
 
Constitutional Identity

Whatever constitutional democracy is, notes Balkin, ‘it’s not a system in which judges are very powerful or in which the constitution is central to national identity’. Once again, he identifies a critical issue: the sixth precept, that the constitution is as expression of ‘collective political identity’. The theme is taken up in more detail by Sandy Levinson.

Levinson surmises, correctly, that I am sceptical of the notion of ‘constitutional identity’. It is advanced by his colleague, Gary Jacobsohn, who (in Levinson’s words) argues that since ‘a constitution instantiates the fundamental commitments and values (i.e., “identity”) of a given society’ to ignore the concept is to ‘engage in wilful ignorance of an important feature of many arguments about constitutional meaning’. This is surely an accurate synopsis, since Jacobsohn maintains that this concept ‘reflects an understanding of the constitution as the foundation for both legal and social relations within a polity’.[6] But Jacobsohn’s claim, I suggest, makes sense only in the purview of constitutionalism.

The concept of ‘identity’ has only recently appeared in political discourse. The term ‘collective political identity’ seems first to have been adopted in Lucien Pye’s book, Aspects of Political Development, published in 1966. It is a metaphor that weaves together myth, ritual, and symbol to establish a notion of collective identity. But although Pye used the term to confer a sense of the continuity over time, the collective body he was referring to is ‘the nation’. The leap Jacobsohn makes from ‘national’ to ‘constitutional’ identity is symptomatic of the ideological shift that constitutionalism purports to effect. It is analogous to the manoeuvre Laurence Tribe makes when he asserts the existence of an invisible constitution, one that ‘floats in a vast and deep – and, crucially, invisible – ocean of ideas, propositions, recovered memories, and imagined experiences that the Constitution as a whole puts us in a position to glimpse’.[7] As Levinson notes, that makes sense only if we embrace the idea of the ‘total constitution’ and assume that the Constitution is constitutive of the state. This is a claim that, as I try to show (AC ch.3) is unwarranted.
 
Nationalism or cosmopolitanism?

I come now to my final theme.  Gowder explains that the conversion of constitutional democracies into constitutionalist regimes is attributable to ‘the rise of contemporary inclusive liberal states in which the traditional sources of social solidarity, like shared racial, ethno-national and religious identity, are ruled out’. This is why constitutions acquire the task of ‘supplying a foundation for shared social meanings in addition to just setting forth the rules of the game’. Dawood makes similar observations. Constitutional democracies, in short, are suffering an identity crisis, one that arises because their traditional sources of authority are being dissipated.

My defence of constitutional democracy is, for Gowder, troublesome. It smacks, for the reasons he gives, of ‘old-fashioned nationalism’. I recognize the dangers and do not pretend to have the answers. All I can say here is that the issue must be squarely faced. Constitutional scholars have for too long hidden behind a vague formula of ‘liberal democracy’, pretending that constitutionalism is a synonym for constitutional democracy and assuming this composite to be ‘a good thing’. The crisis we now face requires a choice to be made between untrammelled cosmopolitan constitutionalism and a renewed national constitutional democracy.

There are many ways in which global developments leading to the dominance of a new ideology of neoliberal economism are having profound social, political, and cultural effects that challenge the authority of national systems of government. These developments now require a decision to be made. However contestable the concepts may be, the question remains: does democracy or liberalism provide the ultimate grounding of legitimate governmental ordering?  Others may decide differently, but I fail to see how civilized existence can be maintained when the individual is treated as an autonomous agent removed from the social matrix within which he or she has been formed but to which remains obligated.

I conclude, then, by thanking Jack Balkin and his colleagues for giving me this opportunity to engage with them on the book’s themes. My main purpose in writing it was to try and jolt constitutional scholars from a widely held yet unreflective assumption, especially in comparative studies, that constitutionalism must be a good thing. The essays presented here have forced me not only to reflect more deeply about some of the claims I make but also to recognize that there is already a vibrant community of scholars who had no need of my prompting.
 
 
Martin Loughlin is Professor of Public Law at the London School of Economics & Political Science. You can reach him by e-mail at m.loughlin@lse.ac.uk.
 

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[1] See Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton: Princeton University Press, 2011).
 
[2] ‘A Testament of Hope’ in A Testament of Hope: The Essential Writings and Speeches of Martin Luther King Jr, ed. J.M. Washington (New York: Harper Collins, 1992), 313-30, 314.
 
[3] Michel Foucault, Discipline and Punish: The Birth of the Prison (London: Allen Lane, 1977), 32.
 
[4] See, e.g., Martin Loughlin, ‘Ruling Britannia’, IMAGINE Paper No. 27 (2022). SSRN-id4287368.
 
[5] See, e.g., Pierre Rosanvallon, The Demands of Liberty: Civil Society in France since the Revolution (Cambridge, MA: Harvard University Press, 2007).
 
[6] Gary Jeffrey Jacobsohn, Constitutional Identity (Cambridge, MA: Harvard University Press, 2010), 8.
 
[7] Laurence H. Tribe, The Invisible Constitution (New York: Oxford University Press, 2008), 9.