For the Balkinization symposium on Martin Loughlin, Against Constitutionalism (Harvard University Press, 2022).
Joseph Fishkin
Loughlin’s Against Constitutionalism is a thoughtful, provocative book. Loughlin has obviously read and thought deeply about a great deal of constitutional theory, especially European constitutional theory, from the eighteenth century to the twenty-first. Readers like me who are students of American constitutional law will find the discussions of American constitutional thought relatively brief and familiar, but the discussions of European constitutional thought rich and often surprising, while still terse and well-paced. I learned a great deal from this book.
However, I must say that the framing of the book struck me as odd. The book’s title proclaims that it is an attack on “constitutionalism.” That is a bold target! However, Loughlin immediately proceeds to define the word “constitutionalism” in a very particular way, rendering it almost a term of art. What Loughlin is actually against is a specific constellation of ideas, which he closely identifies with a brand of constitutional practice and theory he views as distinctive to the United States, both at the founding and across time. (He attributes the recent global spread of that particular constellation of ideas—to Germany, to India, even to certain transnational institutions—largely to the unfortunate influence of United States.) What Loughlin is actually against is forms of constitutionalism that treat constitutions as “objects of worship”; that imagine that constitutions express deep authentic truths about the “collective political identity” of a governing regime or even its people; that fetishize the text of a written constitutional document; that prioritize individual liberty too much; and (perhaps most importantly) allocate the exclusive (or near-exclusive?) responsibility for enforcing the constitution to an unelected judiciary, which operates as a constraint on democratically elected representatives. That last institutional point about the judiciary is so central to the argument that at times Loughlin uses the word “constitutionalism” interchangeably with “constitutional judicial review.”
Loughlin fully acknowledges that constitutions play a variety of essential roles in democratic government; he is not against any of that. But Loughlin insists on reserving the key word in the book’s title—“constitutionalism”—for the specific constellation of ideas I’ve just outlined. This leads to the slightly awkward proclamation that the book is an argument for “constitutional government against constitutionalism” (preface, emphasis added).
Any American critic of our present juristocracy (and I count myself as one) will find plenty to agree with in Loughlin’s overall critique. A judiciary with too much unchecked power is a problem for democratic accountability and even democratic citizenship, in both theory and practice. Fetishizing obscure bits of text with methods inaccessible to ordinary citizens makes the problem much worse, and lends what is already a juristocracy a quasi-religious sort of authority whose fundamentally antidemocratic nature Sandy Levinson has fruitfully explored. To my mind, the question of how extensively to prioritize the protection of individual liberty is considerably more difficult, and a question that frankly depends on exactly which individual liberties the courts are prioritizing. But it is definitely true, as Loughlin’s critique suggests, that the intersection of an economic-libertarian constitutional orientation with juristocracy and a fetishizing of written text is a toxic combination. If that’s “constitutionalism,” then let us all be against “constitutionalism.”
The biggest problem with Loughlin’s book is that it identifies this specific form of constitutionalism far too tightly with American constitutional practice. American constitutionalism—and here I use that word in the more ordinary, non-term-of-art sense—is a rich pageant of contrasting approaches and schools of thought, not only in theory but, more importantly for my point here, in our actual constitutional practice, both inside and outside the courts. The oddity of reading Loughlin’s account is that he sounds very much like a deeply committed, possibly slightly over-enthusiastic U.S. libertarian, who wants to proclaim that the constitution has always been a charter for judges enforce limited government for the purpose of protecting individual liberty. To Loughlin, that is what the U.S. Constitution has always been, from the founding to the present: a sword for judiciaries to wield against the redistributive enactments of democratic government, in the name of upholding libertarian ideas of contract and property.
The American constitutionalism Loughlin describes is very much the constitutionalism of the present U.S. Supreme Court majority. It would also be extremely familiar to a reader from the late nineteenth and early twentieth centuries (the Lochner era). That was a time, like our own, in which a reactionary faction in American politics controlled the courts and fought to limit the innovations in progressive government favored by its political opponents. Loughlin locates some arguments for this particular type of “constitutionalism” in the Federalist Papers, which he regards as a kind of ur-text of (the bad kind of) constitutionalism, even though various of the key elements—big ones, such as judicial review—are relatively inchoate in the Federalist Papers.
Reading this book, one would be very surprised to learn of the long tradition in American politics of progressive and reformist politicians of various stripes using constitutional argument—sometimes textual argument, often structural argument, but really all the modalities of constitutional argument—to attack the libertarian, juristocratic, anti-democratic strains of constitutionalism that are Loughlin’s real target in the book, separately and in combination.
What sense can Loughlin’s account of American constitutionalism make, for instance, of Reconstruction? Loughlin recognizes the centrality of Reconstruction to American constitutionalism (see his discussion of Bruce Ackerman’s work (p. 146–47)). Loughlin agrees with Ackerman that Reconstruction shows that constitutional politics is a component of a governing regime, not some independent force emanating from a written document. But Loughlin never squarely discusses the fact that the Reconstruction Republicans built their entire project of constitutionalism around legislative power and legislative duty, not courts. It was not the courts that would enforce the Thirteenth, Fourteenth, and Fifteenth Amendments, but the Congress. These amendments would be held in place not by being written into a document for lawyers to interpret, but through the political power of the Republican Party. And that was not a new idea in American constitutional politics during Reconstruction. As Willy Forbath and I recount in The Anti-Oligarchy Constitution, Whig constitutionalism earlier in the nineteenth century was similarly focused on the Constitution as a source of legislative duty, not court-enforced constraint.
Many Republicans in Congress during Reconstruction thought that they had a constitutional duty not only to enact statutes guaranteeing equal rights to Black Americans, but to radically reconstitute the entire political economy of the South, displacing the economic and political power of the white planter oligarchy and distributing land and education to the freedmen so as to create the economic and political conditions for a multiracial democracy. From the late nineteenth through the early twentieth centuries, arguments about constitutional duty impelled debates in our politics about antitrust and concentrated economic and political power; the rights of labor; monetary policy; even the structure of government itself. Proponents of the constitution as a bulwark of libertarian rights against government were certainly among those participating in those debates. But constitutional arguments were equally central to the claims of their opponents, including eventually the New Dealers, who argued for distinctly anti-libertarian constitutional visions of our political economy and the power and duties of government.
Thus, in my view, the periodicity of the “constitutionalism” Loughlin attributes to the United States seems off, and the story more complex and interesting. The court-enforced Constitution fully displaces other institutional forms of constitutional argument such as legislative constitutional duty only in the mid-twentieth century, as the Court becomes identified with Brown v. Board and civil rights, and as the discipline of economics displaces political economy. Even after this twentieth-century change, Americans have continued to engage in robust democratic forms of constitutional politics outside the courts—the Nixon backlash against school busing being a seminal example; in the decades that followed, conservative constitutional politics against the Warren Court helped build the modern Republican Party. Today, for the first time in almost a century, progressive constitutional politics in opposition to the conservative Supreme Court is beginning to become an important area of democratic constitutional activity and political organizing.
But this book is not really about the United States. Even though American constitutionalism is far richer than the “constitutionalism” Loughlin is against, it still seems important to understand what features ended up in the model Americans have exported elsewhere. I take Loughlin’s point that a particular configuration of constitutional ideas—even if not that representative of the full richness of American constitutional politics, law, theory or practice—has become a major part of the constitutional regime in quite a few very different countries and even transnational entities such as the EU.
My hunch—and it is no more than that—is that to the extent that bodies like the EU have adopted forms of constitutionalism that are relatively impenetrable to democratic activism, and instead driven by expert and elite consensus, the explanation may lie outside the United States. After all, the core elements of expert/elite governance that American progressives brought to their project of state-building over a century ago were largely imported from Germany. The EU is an elite creation with deep, obvious, and well-known democratic deficits. Is it really a shock that the EU may have adopted forms of constitutionalism that don’t provide a lot of ongoing opportunities for the people to reshape their constitutional trajectory? Do we need the United States to explain this?
And I wonder as well how the future trajectory of American constitutional politics may affect the export market. The strain in American constitutional culture that is the closest to the constitutionalism Loughlin decries—the American constitutional lawyer’s “fetishism” for the Constitution’s text and insistence that “its meaning can be disclosed through skillful legal analysis” rather than through (say) politics (141)—is fast being overtaken by events. The U.S. Supreme Court’s long run of popularity that began in the Warren Court era appears to be reaching its end. That was the political scaffolding underneath a particular late-twentieth-century flavor of American constitutionalism; in its absence, the political demystification of the Supreme Court’s work is advancing rapidly. The American public increasingly recognizes the court as the political branch that it has always been, rather than viewing it as more of an apolitical Guardian. Indeed, many Americans have always seen it that way and for good reason.
So, am I ready for our country to export this particular further turn in American constitutional politics to the rest of the world? To Israel? To Hungary? This blog post is probably not the best place to explore the cognitive dissonance of American progressives who advocate some of the same court-curbing measures in the United States we decry in Israel. But I guess the most interesting point, to me, is that the constitutionalism Loughlin is against in Against Constitutionalism represents something like one side of a dialectic. In a democracy, there is only so far that courts can go in enforcing their own interpretations of a constitution that are far apart from the views of their citizens before the courts inadvertently create an opening for politicians and whole political parties to position themselves to capitalize on that disjuncture. Those politicians and parties then engage in forms of constitutional politics that make the courts a character in the drama of constitutional politics, and by character I mean villain. As constitutionalism (in Loughlin’s sense) has spread across the world, it may also have planted the seeds of the political forces that ultimately keep it in check.
Joseph Fishkin is a professor of law at UCLA. He can be reached at fishkin@law.ucla.edu.