Fernanda G. Nicola
Mark
Tushnet and Bojan Bugaric begin Constitutionalism and Its Discontents
with an elegant paradox: constitutionalism simultaneously empowers
democratic self-government and limits the exercise of democratic power.
More provocatively, constraining power in the name of freedom may itself expand
power. This serves as useful point of departure for a book that asks us not
simply whether constitutionalism works, but whether some of the pathologies we
associate with contemporary constitutional democracy are generated by
constitutionalism itself.
The
title’s invocation of Freud is especially on point. In Civilization and Its
Discontents, civilization responds to human vulnerability, our bodily
frailty, the hostility of the natural world, and the difficulties of social
relations through cultural and social restraints that become sources of
dissatisfaction. Yet we cannot simply abandon civilization to escape those
constraints because those same constraints make collective life possible. The answer
is not to eliminate discontent but to find a way to live with it.
Something
similar occurs in constitutionalism. Constitutions constrain political power in
the name of freedom, but those constraints necessarily create or enlarge power
somewhere else: in courts, lawyers, constitutional designers, administrative
institutions, or past political majorities whose choices become entrenched
against present ones. Constitutionalism is therefore caught between empowering
democratic self-government and limiting the exercise of that very power.
This
recalls another famous set of discontents, liberalism’s persistent difficulty
in reconciling individual liberty with equality. Ronald Dworkin’s famous response
in Liberalism and its Discontents was to deepen constitutional
interpretation through a moral reading of the Constitution. Boldly, Tushnet and
Bugaric travel in an almost opposite direction. Instead of asking
constitutional law to resolve fundamental political disagreements, they invite
us to scale down our expectations of constitutionalism and defend a thinner,
predominantly procedural version of it. And perhaps, they suggest,
constitutionalism’s paradox can be loosened not simply by making
constitutionalism thinner, but by making it more political.
The
Judicial Review Paradox
Judicial
review provides perhaps the clearest illustration. Courts embody precisely the
paradox that Tushnet and Bugaric diagnose. Judicial review limits governmental
power, but it simultaneously transfers enormous authority to judges and high
courts so that “constitutional rights do not appear to be better protected in
countries with independent courts equipped with the power of judicial review.
The main reason behind this paradox is the fact that the enforcement of rights
ultimately falls on citizens themselves.” (p. 268)
This
is not merely the familiar counter majoritarian difficulty. The expansion of
judicial review can transform political disagreement into legal debate, making
important questions of equality, distribution, executive authority,
immigration, or democratic participation subject to constitutional
interpretation in the courts. Lawyers and judges thereby acquire a privileged
position in deciding conflicts that originate outside law and cannot be
addressed through law alone or without broader social and political
mobilization.
Tushnet
and Bugaric resist the constitutionalist instinct that answers every failure of
politics with additional constitutional law. But the contemporary authoritarian
challenge makes the problem considerably more complicated. If strengthening
courts can weaken democratic self-government, weakening some courts can also
strengthen authoritarian power.
When
Authoritarians Attack Courts
Tushnet
and Bugaric’s paradox of constitutionalism becomes particularly acute when
courts themselves come under authoritarian attack. In my own work
comparing the U.S. and the EU, I distinguish among three forms of attack:
personal, institutional, and attacks through ideology. Personal attacks
delegitimize judges, institutional attacks alter appointments, discipline,
jurisdiction, or remedies, while attacks through ideology aim to contest the
legitimacy of judicial constraints themselves. All three undermine the
authority of courts to operate as checks on political power.
Poland
provides perhaps the clearest European example. Beginning in 2015, the Law and
Justice (PiS) government portrayed judges as a privileged elite obstructing
democratic will. Personal attacks were followed by disciplinary mechanisms,
restructuring of the National Council of the Judiciary, and the so called
“muzzle law,” which subjected judges to disciplinary proceedings for
questioning judicial appointments or criticizing government reforms.
Constitutional
identity, national sovereignty, and democratic self-determination became
arguments for resisting European judicial supervision and contesting judicial
constraints on political majorities. Concepts designed to preserve
constitutional pluralism transformed from shields protecting national autonomy
into swords directed against the institutions capable of constraining political
power. Ideology here redeploys legal and constitutional ideals with genuine
normative force to legitimate an illiberal and undemocratic allocation of
political power.
The
U.S. presents a parallel, although institutionally different, development. An
increasingly expansive version of unitary executive theory portrays judicial
and administrative constraints as illegitimate impediments to presidential
authority. Courts themselves can participate in this redistribution of power, as
judicial doctrines dismantling constraints on presidential removal power
strengthen executive authority rather than restrain it. Constitutional stemming
from the Supreme Court participate in constructing and legitimizing authoritarian
allocations of power.
Here,
Tushnet and Bugaric’s paradox helps us rethink not only whether taming
authoritarian power might expand constitutional power, but its inverse: does weakening
constitutional constraints expand authoritarian power? That question makes it
difficult to either embrace judicial supremacy, as a safeguard against
authoritarianism, or simply to celebrate its retreat.
Courts
Cannot Save Democracy
Contemporary
critiques of judicial review exercised by apex courts contain an important
element of truth. Courts rarely defeat authoritarian populism on their own.
Judicial victories may be partial, delayed, circumvented, or politically
fragile. Governments can adapt to adverse decisions and even use them to
reinforce a populist narrative in which unelected judges obstruct the
democratic will of ordinary citizens. At best, judicial review may slow,
complicate, and occasionally reverse processes of democratic erosion while
creating political and institutional space for broader resistance.
But
the lesson cannot be that judicial independence is dispensable.
Authoritarian
governments themselves demonstrate why. They expend considerable political
capital restructuring judicial appointments, disciplining judges, limiting
remedies, intimidating lawyers, and contesting the binding force of judicial
decisions precisely because independent courts can constrain their power.
Moreover, attacks on judicial independence frequently occur alongside attacks
on civil society, universities, independent media, local governments, and the
legal profession. The target is not simply the judiciary, but the network of
institutions capable of imposing limits on concentrated political power.
This
suggests a more modest, but no less important, understanding of judicial power.
Courts do not save democracy. They can, however, preserve the institutional
space within which democratic politics can continue. Independent courts can
protect individuals and associations from immediate abuses of executive power,
preserve avenues for political opposition, enforce procedural constraints,
sustain domestic and transnational mobilization, and buy time for democratic
resistance. Their victories may be incremental and temporary, but those
victories can preserve the conditions under which political resistance and
eventual democratic reconstruction remain possible.
This
is why I resist both the romanticization of judicial review and its wholesale
rejection. Judicial independence is a necessary but insufficient condition for
constitutional democracy. Courts matter not because judges possess some
superior capacity to resolve political disagreement, but because they form one
component of a democratic ecosystem.
From
Ordinary Politics to Constitutional Politics
Returning
political and social questions from courts to legislatures does not itself
democratize the conditions under which those questions are decided. The
alternative to juristocracy, therefore, cannot simply be majoritarianism. Nor
should the alternative to constitutional law be politics understood only as
electoral competition.
What
Tushnet and Bugaric argue for instead is constitutional politics, an
understanding of constitutional democracy as sustained through interactions
among courts, political parties, legislatures, social movements, advocates,
journalists, local governments, civil society organizations, and citizens. Their
turn toward constitutional politics is enormously attractive because it
challenges the tendency of constitutional lawyers to imagine that
constitutional problems necessarily require constitutional law solutions. It
reconnects constitutional change with political parties, social movements,
civil society, and democratic mobilization, rather than treating courts as the
principal engines of political transformation. But constitutional politics is
not an innocent or neutral space. It is structured by inequalities of wealth,
political organization, access, information, and voice, inequalities into which
the authors do not delve sufficiently. Moving constitutional questions away
from courts and into politics does not make these inequalities disappear. It
may simply relocate the struggle over constitutional power.
But
the authors suggest a slightly different response to constitutionalism’s
discontents. Perhaps the goal should not be to discover the optimal amount of
constitutional politics or the proper balance between law and politics in the
abstract. The more important question is how constitutional power is
distributed across a democratic ecosystem in concrete cases. Constitutional
politics, on this account, is less about identifying the institution entitled
to have the final word than about sustaining the institutional and social
conditions under which constitutional meaning remains open to contestation.
Freud
did not promise civilization without discontent. Tushnet and Bugaric do not promise
constitutionalism without its paradoxes. Their achievement is instead to make
us suspicious of the recurring constitutionalist fantasy that the failures of
democratic politics can be solved simply by adding more constitutional law. If
the paradox cannot be solved, constitutional politics may at least allow us to
live with it.
Fernanda G. Nicola is a Professor at
American University Washington College of Law, and she can be reached at
fnicola@american.edu.