Constitutionalism — An Opium for the Lawyers

In this conversation with Kasia Krzyżanowska, Martin Loughlin discusses his newest book Against Constitutionalism (Harvard University Press 2022). 

Martin Loughlin — Professor of Public Law at the London School of Economics and Political Science. His previous publications include The Idea of Public Law (2003), Foundations of Public Law (2010) and Political Jurisprudence (2017), all with Oxford University Press.

Your book is an argument against the specific understanding of constitutionalism — the one that elevates the founding text, the constitution, above the ordinary cut and thrust of politics and, in your understanding, constitutionalism should be spoken about as an ideology.

Could you explain in more detail the definition of constitutionalism against which you are arguing?

The book presents an account of a concept that’s regularly invoked, but rarely defined. I suggest, first, that constitutionalism must be understood as a purely modern ideology. It presents itself as a theory concerning the role standing, form, and telos of a modern invention, the written constitution.

But I then  present a relatively precise definition of what I mean by constitutionalism. Specifically, I say that constitutionalism maintains that this written constitution should fulfil six criteria. The constitution first establishes a comprehensive scheme, secondly, of representative government, and thirdly, of differentiated powers, Those first three criteria are not particularly contentious. They are features of constitutional government in general. It’s the latter three that reveal its ideological force.

So, the constitution must be seen, fourthly, to have created a permanent framework that takes effect, fifthly, as fundamental law. And because of those two features – permanence and it being a body of fundamental law – the judiciary is engaged in an altogether novel task: not that of interpreting the text, even though it works with the text, nor of working within the confines of precedents, but rather the judiciary ends up trying to explicate the core values and principles of the society. In this way, the constitution is perceived not just as a framework of government but, and this is the sixth criterion, it stands as the authoritative expression of a regime’s collective political identity. That’s what I mean by constitutionalism.

What is the difference between constitutionalism and constitutional democracy? Or, perhaps a more interesting question to ask is when does mediocre constitutional democracy transform into mild constitutionalism?

One of the themes of the book is to defend constitutional democracy against constitutionalism. In much of the contemporary discussion, the two are treated as more or less synonyms and this, I argue, is wrong. They should not be conflated. 

I try to show this by suggesting that modern government acquires its legitimacy from two main sources: first, adherence to a constitution that we the people have authorized and, secondly, by adopting a constitution that protects basic rights. But the question is: which prevails? Civic republicanism prioritizes the former. Liberalism prioritizes the latter. And recently, notably, in the work of Jürgen Habermas, attempts have been made to reconcile these two claims.

I argue that such a reconciliation cannot be achieved in practice and in trying to do so, Habermas actually ends up prioritizing rights and defending constitutionalism. 

The constitution does provide a framework for negotiating that tension, but the essential point I would emphasize is that constitutional democracy acknowledges that such a tension can’t be wished away.

Disagreement and deliberation over these conditions must remain open to continuous negotiation, to continuous political negotiation. And whatever else that might mean, I think it places clear structural limitations on the degree to which these issues can legitimately be resolved by the judiciary.

The maintenance of a plurality of institutional sites of deliberation, decision-making and accountability are markers of that indeterminacy, which is a feature of constitutional democracy. They are essential markers of a constitutional democracy. The critical difference then concerns, firsty, a perception of the role of the constitution in political life. Is it a framework of government, or is it an expression of the regime’s basic values? And then, secondly, the role of the judiciary as the agency equipped to be able to resolve those tensions. 

Then you ask the tough question:  when does one morph into the other? Here I’m going to bow out. That is an empirical question and the book makes no pretence to answer that. All I can say is that lawyers are skilled at drawing differences of kind where others see differences of degree.

You are also arguing against different types of constitutionalism — civic, popular, political constitutionalism is also not a solution. Why are concepts like these  not reinvigorating constitutionalism itself?

I would argue that once I’ve given this relatively precise definition of constitutionalism, then those who seek to put adjectival qualifiers on constitutionalism actually are trying to turn constitutionalism into something else. Popular constitutionalism might be an assertion of the popular power of the people, but it’s not constitutionalism in my understanding. Authoritarian constitutionalism might be an attempt by authoritarian regimes to cloak their legitimacy in the language of constitutional order, but it’s not constitutionalism in my understanding. 

Once I provided the definition I have,  these adjectival qualifiers become redundant and a misunderstanding the character of the ideology. 

My colleague here in Yale, Robert Post has written about democratic constitutionalism. Again, I don’t believe that:  it’s either constitutionalism or it’s a constitutional democracy, but one can’t assert a particular phenomenon called democratic constitutionalism. Either constitutional democracy or constitutionalism, but one can’t conflate the two.  

Let us talk about constitutional democracy then. According to you, who is actually we the people in constitutional democracy? Who is the subject of law?

Well, that’s an excellent question, but it’s a difficult one to address briefly.

We might start with two images of the people. First, there’s the ideal construct, ‘we, the people’, in whose name the constitution is authorized, and then there’s the ‘real’ people, what we might call the multitude. I show in the book that modern constitutional discourse is riven with this tension. 

Sieyès, for example, talks about the people as ‘the nation’ and the source of all authority, but when we come to examine his argument further, we see that he excludes from the political nation not only the nobility, but also women, beggars, vagabonds, domestic servants — anyone who is dependent on a master. His account signifies the breakthrough in ushering in a modern world of constitutional discourse. We can say it’s the French revolutionary moment, the beginning of the transition of modern thinking about constitution, but  it also is legitimating the transfer of political power from the aristocracy to the bourgeoisie. 

Thereafter, the struggle is the quest for inclusion, the quest to include ordinary people in the world of the political nation. And I have a chapter in the book that discusses that precise question. But at this point, I should emphasize that when we are engaging in constitutional analysis, we’re working in a world of symbolic representation.

And this is the reason why I argue that the concept of constituent power cannot be reduced to the will of the multitude, and neither can it be entirely absorbed and dissipated into the normative scheme of the constitution.

That means that we need to embrace some sort of relational notion in which constituent power is an expression of a dialectical engagement. It expresses the power-generating quality that constantly irritates the institutionalized form of authority. Although that’s rather abstract, the point is that if one loses this representational role of the people in the constitution of authority, as I argue takes place with constitutionalism, then one loses a necessary plank of the constitutional legitimacy. So I actually am just coming back now to asserting the need to have these two legitimating principles, democracy and rights, in tension with one another.  Many constitutionalist advocates say constituent power is a redundant concept. I think that this is to  lose a plank of legitimacy that ultimately corrodes the authority of a regime.

We can talk a bit more about the other side of constitutionalism — the judiciary. Richard A. Posner wrote in a piece that you quote that constitutional lawyers “know little about their real subject matter — a complex of political, social, and economic questions. What they know is a body of decisions written by other poorly informed students”. You subscribe to this view, writing about the constitutional court as a “forum that is relatively remote, unaccountable, costly”. Why then does constitutionalism vest its adjudicating powers to the group of oftentimes unequipped lawyers, and what makes lawyers believe in their role?

The classic answer to that question was provided with great prescience by Alexis de Tocqueville writing in the mid-19th century. He argued that the danger posed by the coming of democracy was that it instills a sense of equality that might come to jeopardize liberty. And he went on to argue that the lawyers are the great bulwarks against that threat. This is because, he argues, the lawyers quietly neutralize the vices of democracy by instilling aristocratic values into the democratic process. They speak the language of liberty, but above all, they value order. 

Now, projecting this argument into the language of rights, lawyers reinterpret democracy as an expression of rights and in the process, they thereby, however implausibly, present themselves as agents of democracy. So, lawyers, Toqueville says, are the great conduits of modern constitutional democratic discourse.

But do you see any positive role of the constitutional lawyers? For example, many argue that the democratic transition in the Central Eastern European countries could not have happened if it had not been for the constitutional lawyers and constitutional courts that somehow eased the transition.

Well, I am not sure lawyers were central to the transition. The transition was a product of geo-political forces that led to the collapse of the Soviet Union and the reconstruction of the regimes of Central and Eastern Europe on liberal democratic lines, but there are much more powerful forces behind that than the lawyers. Virtually all these regimes adopted a constitutional court and the constitutional court in the scale of modern thought is a relatively new institution. It’s an interesting institution because it’s often established, as we see in post war Federal Republic of Germany, specifically to break with the civilian culture and to establish a special institution that is able to promote the values implicit in the constitutional order. So, yes, they play that vanguard role, but I’m not sure how central they have been in  bringing about the change.

It seems now that the role of constitutional lawyers is especially vital because of the rule of law crisis that we are experiencing in the Union. How would you assess the role of constitutional scholars?

I think it’s impossible to generalize — because who are constitutional scholars? They are people like you and me, and many other people who have a variety of views and world experiences and suchlike . There’s nothing [specific] in the discipline, and the fact that we’re interested in the study of constitutions doesn’t make us advocates. The great split, I think, is between advocacy and analysis.

It’s clear that many constitutional scholars conceive their role as acting in the intellectual vanguard of judicial activism. 

They see their job as trying to try out some of the more adventurous intellectual tricks so that if they can be shown to work on paper, they might be adopted by constitutional courts in practice. And with respect to what you call the rule of law crisis, then the role of this group is inevitably to try to bolster liberal rights against illiberal democracy. Important though that might be at one level, there are limits to this strategy because courts, after all, have little political power.

Another role for constitutional scholars is as analysts, rather than advocates. They might try to offer a sober and critical account of what is happening, why it’s happening, and with what consequences and in that respect, they will be acting more like their fellow academics in the other social sciences.

As you can see, I’m skeptical of the advocacy role of the constitutional scholar.

If the power is taken from the judiciary, how should the reclaimed power be exercised? Is there not a danger that it will fall into the hands of the executive and the influence of the democratic public will be, in fact, much lower than it is now, and much more reduced? For example, we see that in the jurisdiction of the illiberal governments, they tend to limit the popular participation in exercising power, somewhat paradoxically. 

In such moments of crisis, I think there’s a limited value in advocating alternative means of checking and controlling the exercise of executive power. That’s not to say I don’t think it’s very important, but rather because in these moments of crisis, the growth of executive power does not just lead to the marginalization of the judiciary, it tends to go hand in hand with the bypassing of legislatures. 

Look, for example, at the way in which Erdogan was able to change Turkey’s system of government from one of parliamentarism through to semi-presidentialism, through to presidentialism, through to authoritarianism. That sort of trajectory and those sorts of changes raise profound political questions, which unfortunately my work offers few answers.

As a worrying development in the second phase of modernity, you point out that an increasing amount of governing power is exercised by international institutions, which lack democratic authorization.

But it seems that many challenges can now be tackled only by the national governments and it’s a common argument of those advocating for more global law. For example, coordinated action is needed for combating climate change, environmental challenges, so this is hard to be achieved by a limited government or by the means of traditional government and how could national or global constitutional democracy deal with these challenges?

I take your point, but I’m not sure I understand the question. Let me put it this way:  fewer than half of the countries in the world today are constitutional democracies, and I’d venture to suggest that most of them are in the vanguard of policy action to address the climate crisis or to protect against environmental degradation. These constitutional democracies are also leading participants in the work of international organizations. There’s nothing in the idea of constitutional democracy that suggests that their governments should not cooperate in promoting common international objectives. 

The degree of cooperation and action that’s taken presently to address these threats, we might agree, there’s a broad sense that they are inadequate to the scale of the challenge that we face, but I doubt that there is a simple alternative institutional fix.

I am really not sure what the global scholars think that they can achieve through trying to shift the paradigm from national constitutional democracy to some sort of super-powerful international agencies. Do they envisage some super powerful international agency equipped with the power to command nation states and multinational corporations? Well, isn’t that just pie in the sky? Isn’t that just simply trying to find a simple institutional template on paper and saying we need world government? Well, come on.

You explicitly endorse Alexander Somek’s view on cosmopolitan constitutionalism and postnationational citizenship discourse as “neoliberalism with a leftist face”. Could you elaborate here why you think that cosmopolitan constitutionalism with the international standards of human rights will not reinvigorate this ideology?

What I argue is that cosmopolitan constitutionalism promotes a version of liberty and also equality, but it marginalizes the third element of the breakthrough, solidarity. 

Those on the left who are seduced by this ideology may advance multiculturalism, but in doing so, they generally replace the left’s traditional focus on redistribution with that of inclusion. And rather than promoting greater equality, this move seems to me to entrench market ideology. 

To be crude about it for a moment: The Bobos, the bohemian bourgeoisie, get their ethnically diverse restaurants and cultural facilities, have cheaper migrant labor to act as house cleaners and child minders, and advanced Western societies are able to run their strained social service systems through this cheaper migrant labor. But as Ivan Krastev, the Bulgarian political scientist noted polemically, the post-communist revolutions in Eastern Europe are the first in history in which it was the victors who have left. That is, rather than stay and rebuild their societies, the young, educated, liberal, professionals moved West to get better paid positions in advanced Western economies. And that’s why I think Somek is right to call it neoliberalism with a leftist face.

Why do you perceive constitutionalizing the social market economy as a danger to the sovereign will of the people and democratic decision making? How could the welfare state in general be envisioned if it’s not based on citizens’ constitutional rights, and states obligations, on the other hand?

There’s two questions there, and I’ll try enter the second one first: on how do we envisage a welfare state that is not based on citizens’ constitutional rights and the state’s obligations. Well, Britain developed a  welfare state in the mid-20th century, and it developed that welfare state without extensive judicable individual rights. This welfare state was one in which government assumed responsibility for promoting the welfare of its citizens, and it did so through the collective provision of such services as housing, education, health, and social security. This welfare state provided the institutional basis for the realization of what might be called ‘full citizenship for all’. It did so, in a sense, by advancing a new set of social rights, but these social rights were not assumed to be individualized, judicially enforceable rights. Since this is the world in which I grew up, I don’t have difficulty envisaging a state founded on basic citizenship rights, but I do not treat those as individual, judicially enforceable rights.

I wouldn’t conflate the welfare state world with the contemporary world that revolves around this figure of the individual rights bearing citizen, and indeed, the growth of rights in the last three or four decades has evolved hand in hand with the growing inequalities of Western societies. 

I think there’s a correlation, I can’t say there’s a causal connection, but there is a correlation between enhanced individualist rights discourse and growing inequalities.

To come to the first question, the danger of constitutionalizing the social market economy is that it’s founded  precisely on individualization and indeed on the entrenchment of the power of competitive markets. It seems to me to be one that’s more likely to work for the benefit of those who are most able to take care of themselves. Indeed, constitutionalism, as I call it in the book, significantly inhibits the possibility through collective action of instituting a regime that protects those basic citizenship rights, as I explained them in terms of a welfare state regime.

You adopt a more cautious approach to populism, calling it, after Peter Wiles, a syndrome rather than a specific ideology. It is born out of dissatisfaction with the functioning of constitutionalism and the functioning of political parties. Would you assess Brexit as the triumph of populism in the UK?

No, not really. I am conscious that many commentators do so and generally they do so without actually analyzing what has happened. It’s true that the referendum result in 2016 closely correlates with social class but does that mean that it’s a populist measure when the ‘have nots’ win? Would you say that the referendum is always a tool of populism? Was it a tool of populism when Polish citizens voted in 2003 to join the European Union? Was it a tool of populism when the citizens of Chile last year voted to reject the new draft constitution that had been drawn up by constituent assembly? Because some say some have argued that Chilean result was a mark of the maturity of their polity. I’m not sure whether referendums are always populist devices. 

Well, let me come to the United Kingdom in 2016. By 2016, when the Brexit referendum took place, the referendum had been used on 10 previous occasions. 

And also by that point in 2016, all the major political parties had pledged that there would be no further transfers of powers to the European Union without first holding a referendum. This is because the European Union was becoming increasingly unpopular at home.

The Conservatives had been making such pledges since 2010 but, despite this, in the 2014 European parliamentary elections, they were relegated to third place and the election was won by UKIP (United Kingdom Independence Party) working on a manifesto to leave the European Union. Those developments, those political developments, provoked the Conservative Party to promise an in-out referendum on EU membership in their 2015 election manifesto.

Now, there are lots of criticisms and flaws in the referendum process. And people have talked about those and I don’t disagree, except for one thing: they generally say there were lies on the side of those who were seeking to vote to promote the leave campaign, whereas there were lies on all sides. There were lies by politicians promoting project fear:  please don’t vote to leave because otherwise   every household will be £4,000 worse off. There were lies all around. 

I’m not actually a great fan of referendums, but what I would say is that  to say that the Brexit referendum was a triumph of populism fails to do justice to a much more complicated narrative. And it’s unsettled our system, undoubtedly, but it hasn’t changed our system of government radically.

Do you see the constitutional ideology in the operational functioning of the European Union, do perceive  the legal system of the EU as a constitutionalist order?

Yes, I think the European Union is the epitome of Ordo-constitutionalism. It may not have been in its origins, but it has come today to be entrenching a neoliberal arrangement. It has a constitutional form. The constitutional form is an invented constitution, and it’s an invented constitution mainly by the Court of Justice of the European Union. And that invented constitution entrenches neoliberalism.

As you can tell, I am not a great fan of the European Union as a constitutional project and there are many reasons. I’m sorry, I’m going back to Britain for one moment. Many in Britain were content with the European Union when it was a common market. What they became very dissatisfied with is when,  after Maastricht, it presents itself as a federalist project. And that for the British would never be acceptable. 

In collaboration with Teodora Miljojkovic

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