The end of constitutionalism

2    The End of Constitutionalism

There are many definitions of constitutionalism. These definitions usually associate constitutionalism with a number of ideas: ‘restrained and divided’ political power,¹ adherence to the rule of law,² the protection of fundamental rights³ and the principle of constitutional supremacy⁴ (which is based on a distinction between ordinary and higher laws⁵). These ideas, although sometimes presented as equivalent to constitutionalism itself, are better understood as ways of achieving constitutionalism’s main objective: limiting political power. Constitutionalism seeks to subject political decision-makers to constitutional principles that are placed outside the scope of their ordinary legal faculties. A regime that respects the ideal of constitutionalism is subject to established law; it is a regime controlled by a number of rules, procedures and structures that create important limits on the political power of governments and their peoples.⁶ Thus, for example, dividing power among different branches of government is typically seen as an effective way of achieving that objective, since such an institutional arrangement would avoid the concentration of power in one institution or individual. Respect for the rule of law, understood as requiring at the very least a predictable legal system – one that operates according to stable and clear laws – promotes constitutionalism’s main objective further by offering protection against arbitrary rule.⁷

Guaranteeing the enjoyment of a set of fundamental rights (sometimes enforceable by courts) protects individuals from state interference in large areas of their private life and allows citizens to exercise different degrees of control over government policies through ordinary political participation. In order to protect rights and other institutions that promote the existence of a limited government from day-to-day majorities, constitutionalism is generally understood as mandating that they are entrenched in a constitution that is distinct from ordinary legislation: a constitution that is to be considered higher law and whose modification is subject to special procedures (even though a regime that operates under a flexible unwritten constitution could also effectively limit political power).⁸ That these are the ideas and institutional arrangements that characterise modern constitutionalism should not be a matter of controversy; in fact, they do not seem like bad ideas at all. But this is not the whole story. Constitutionalism is also characterised by a Lycurgian⁹ obsession with permanence, a fear of constitutional change according to which a constitution that contains the right content – a good, constitutionalist constitution – should also be a finished constitution. That is, a constitution that might be improved by correcting some historical mistakes here and there (and that might evolve and be expanded through judicial interpretation), but whose fundamental principles and the governmental structures it creates should be more or less immutable and therefore placed beyond the scope of popular majorities. It is this idea which is at odds with democracy.10

The Aspiration to Permanence (or The Fear of Constituent Power)

This component of constitutionalism has been defended at different moments and with different degrees of emphasis. In eighteenth-century France, it was exemplified when Isaac Le Chapelier, the Jacobin jurist, claimed that “the revolution was finished”, as there were “no more injustices to overcome, or prejudices to contend with”.¹¹ Some years later, Napoleon Bonaparte issued a similar declaration: “Citizens, the revolution is determined by the principles that began it. The constitution was founded on the sacred rights of property, equality, freedom. The revolution is over.”¹² The aspiration to permanency that drove Le Chapelier’s and Napoleon’s dicta is alive and well and, perhaps today more than ever, continues to inform liberal constitutionalism. One must not think, however, that it is only the entrenchment of basic liberal rights that drives this ideology. The idea is that to alter the constitution in important ways is to look for trouble, to play with the stability of the political system and to risk the precious ideal of the rule of law.

In American constitutional thought, one of the first formulations of this view can be identified in James Madison’s writings, particularly in the context of his famous response to Thomas Jefferson’s ‘dangerous’ ideas about constitutional change. Jefferson, it is well known, despised the idea of perpetual constitutions. He complained that “[s]ome men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched”.¹³ In his view, “human institutions must go hand in hand with the progress of the human mind”¹⁴ and those living under a constitutional regime must be allowed to correct the ‘mistakes’ of previous generations. Jefferson even suggested that at set periods of time (every time a new generation came into existence, which occurred every 19 years according to his interpretation of the European tables of mortality), all laws and institutional arrangements should lapse and periodic constitutional conventions convened.¹⁵ Those conventions would guarantee that the present generation could exercise the “right to choose for itself the form of government it believes most promotive of its own happiness”.¹⁶

Madison disagreed with most of this. He maintained that Jefferson’s ideas about constitutional change and constitutional conventions came accompanied with “[t]he danger of disturbing the public tranquility by interesting too strongly the public passions”.17 It is not that Madison defended the idea that a constitution could (or should) never be changed.¹⁸ However, he believed that Jefferson’s proposal suggested to the citizenry that their current system of government was somehow defective, depriving the government of “that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability”.¹⁹ Thus, instead of periodic constitutional conventions that opened the constitution to the “decisions of the whole society”,²⁰ Madison favoured a complicated amendment procedure, one that involved a series of extraordinary majorities at the federal and state levels. In other words, an amendment procedure that would make constitutional change difficult and unlikely, and whose usual protagonists are not ordinary citizens (that would simply be too risky) but state officials sitting in federal and state legislatures. Among US constitutionalists, no one has followed Madison’s advice better than Kathleen Sullivan.

Sullivan’s critique of what she calls Amendmentitis, or the unjustified desire to amend a constitution, is not very far away from the idea that a constitution should never be altered. For Sullivan, amendments “are dangerous apart from their individual merits”.²¹ Not surprisingly, she maintains that Jefferson’s proposals about constitutional change were rejected for good reasons.²² According to Sullivan, a frequently amended constitution decreases the people’s confidence that their constitutional system is stable and undermines the idea of having a constitution in the first place. Amending the constitution frequently also obscures the distinction between constitutional and ordinary politics; making the supreme law lose its fundamental character and putting at risk its coherence and generality. Finally, amending the constitution might ‘politicize’ it, and “the more a Constitution is politicized the less it operates as a fundamental charter of government”.²³ For these and other reasons, Sullivan concludes that the constitution should be amended “only reluctantly and as a last resort”.²⁴ But the disease Sullivan identifies is not that common. While there are well known US constitutional theorists that, for different reasons, argue against the rigidity of Article V (the US Constitution’s amendment rule),²⁵ it is the Lycurgian approach to constitutions and constitutional change that is well established in US constitutional theory and practice (although usually presented in a more subtle way than the one that characterises Sullivan’s arguments).²⁶

This view is best exemplified in the writings of scholars engaged in a defence of constitutionalism’s democratic credentials. Christopher Eisgruber and Stephen Holmes provide two good examples. Eisgruber argues that self-government is perfectly compatible with constitutional forms that are protected through an inflexible amendment procedure. “If a polity is consumed with endless debates about how to structure its basic political institutions,” writes Eisgruber, “it will be unable to formulate policy about foreign affairs, the economy, the environment, zoning, and so on.”²⁷ For Eisgruber, rigid or inflexible constitutions can be understood as a practical device for implementing a non-majoritarian (and superior) conception of democracy. Flexible amendment procedures, on the contrary, may encourage “improvident reforms” that would encumber later generations, and allow present-day majorities to consolidate power at the expense of the whole people.28 Eisgruber’s approach is, in the last instance, profoundly Madisonian: the constitutional text is better left alone. Moreover, if any adjustments are needed, they can always be achieved through interpretation rather than through formal amendments (in this sense, it is not surprising that an important part of Eisgruber’s book is dedicated to a defence of judicial review of legislation).

This kind of approach finds an important theoretical backbone in Holmes’ influential defence of constitutional pre-commitment. Holmes argues that the fact that a constitution is difficult to amend does not render it inconsistent with basic democratic principles. What rigid constitutions do is to serve as a guarantee that future generations will not eliminate the possibility of the formation of a democratic public will.²⁹ By setting up institutions that allow citizens to deliberate about important matters, constitutions become instruments of self-government: techniques by which citizens rule themselves.³⁰ As with the rules of a game or the rules of grammar, constitutions are primarily enabling: they allow a democratic form of political life to take place. And just as it would make little sense to change the rules of grammar or the rules of a game while writing or playing, it does not make much sense to worry about the reformulation of these enabling norms. Besides the fact that it would be great if all a constitution did was to enable democracy to take place (a point I will consider later in this chapter), it is fair to say that Holmes’ defence of pre-commitment is an endorsement of constitutionalism’s Lycurgian tendencies: constitutional change should be difficult and unlikely, a constitution is simply too valuable to be meddled with.

To see how this conception manifests itself in constitutional practice, one only has to look at the amendment provisions of most modern constitutions. These provisions usually involve a set of requirements that are characterised by being more difficult to meet than those followed when the constitution was originally adopted. That is to say, while most constitutions are adopted by some form of majority rule, constitutional amendments are traditionally associated with supermajorities and other obstacles designed to decrease the possibility of important transformations.³¹ Some constitutions even contain ‘eternity clauses’ that place certain provisions outside the scope of the amendment procedure, thus highlighting the fear of constitutional change that characterises constitutionalism.³² Unwritten constitutions that operate under the doctrine of parliamentary sovereignty present an important exception to this rule: they do not subject important constitutional transformations to any formal requirements that differ from the ones that need to be met for the adoption of ordinary laws.³³ We will see in the next chapter, however, that unwritten constitutions present important difficulties when looked at from the perspective of democracy at the level of the fundamental laws.

By making constitutional change difficult and unlikely, constitutions also make popular constitutional change difficult and unlikely. That is to say, the amendment processes of most liberal constitutions are not characterised by heightened opportunities for popular participation (other than the occasional vote in a referendum). By aspiring to be the exclusive means through which a juridical system regulates its own transformation, typical amendment rules negate ordinary citizens’ ability to transform their constitution in important ways. In short, they prevent future exercises of constituent power (understood as the faculty of positing new or radically transformed constitutions through participatory procedures) from taking place.

In Chapter 4, I will consider in more detail different ways in which the democratic ideal is negated by constitutionalism’s aspiration to permanency. But before developing this point, it is necessary to explore in more depth constitutionalism’s tendency to make constitutional change difficult and unlikely, and the possible democratic justifications of this tendency. That is to say, there is a way of defending the Lycurgian approach from a democratic standpoint: by diminishing the probabilities of important constitutional transformations, constitutionalism protects democracy from itself. More specifically, there are some principles (which take the form of fundamental rights) that are necessary for the very existence of democracy. Therefore, the argument goes, making a constitution difficult to change (and only changeable by ordinary government) in order to protect those principles, can be made perfectly consistent with the democratic ideal. I turn to examining (and rejecting) this view below.

Constitutionalism as The Protector of Democracy

As noted earlier, one of the ways through which constitutionalism seeks to limit political power is through the entrenchment of fundamental rights in a supreme constitution. This usually involves placing rights into a constitution that is difficult to change (at least more difficult to change than ordinary legislation) and giving the judiciary the power to strike down laws that conflict with those rights. Constitutional theory has long been occupied with developing arguments that defend or attack the democratic or undemocratic character of this kind of arrangement. For instance, Ronald Dworkin has argued that the United Kingdom should entrench fundamental rights in Bill of Rights and give judges the power to invalidate legislation inconsistent with those rights.³⁴ And he defends this idea on democratic grounds: there is nothing undemocratic about protecting the rights that are required for democracy to exist.³⁵ Others, like Jeremy Waldron, oppose the very idea of entrenching rights. Waldron has even rejected the idea of enacting “any canonical list of rights, particularly if the aim is to put that canon beyond the scope of ordinary political debate and revision”.³⁶ Moreover, he insists that whenever there is a disagreement about rights, it should not be judges but the people whose rights are in question (acting through their elected representatives) to be the ones to decide what rights they have.³⁷

Now, the institution of an entrenched and supreme bill of rights, by itself, is not central to the argument of this book. Even according to traditional constitutional theory, it is the people, in the exercise of their constituent power, who have the faculty to create a constitution and, if that is their wish, of entrenching fundamental rights and giving the judiciary the power to strike down legislation that is determined to be inconsistent with those rights.38 Even under that view, entrenched and supreme bills of rights only bind day-to-day legislative majorities, not the citizens themselves, who are said to retain the right to create a new constitution and thus to alter the rights recognised in an old one (even if they have no way of doing that as a matter of political reality).³⁹ So, it is of little interest here whether legislatures or courts should have the final word regarding the meaning and scope of fundamental rights, nor is it a problem that legislatures are not allowed to alter rights through the same procedures they use for the adoption of ordinary laws. This book is not about limits to ordinary law-making institutions, but about the lack of opportunities for popular constitutional change. Nevertheless, at the heart of arguments in favour of entrenched and supreme bills of rights lies an important claim: that constitutionalism, by protecting certain principles, seeks to protect democracy from itself.

That idea is important for at least two reasons. First, it suggests that fundamental rights have such an important connection to democracy that they are constitutive of it: democracy cannot exist in their absence. Second, since some rights are constitutive of democracy, the constitution that contains them should be difficult to change (and here ‘difficult to change’ usually means difficult to change for anyone, not just for legislatures) so that the abolition of democracy is avoided. Someone who accepts these ideas would probably be uncomfortable with giving ordinary citizens the means of engaging in profound constitutional transformations: there is always a chance that the people will decide to abolish fundamental rights and with them the entire democratic system of governance. Constitutionalism’s aspiration to the permanence of the constitutional regime can thus be defended from a democratic perspective. If one wants democracy to exist over time, it is a good idea to restrain everyone’s political power so they cannot, intentionally or unintentionally, abolish democracy. However, as I will argue below, even if one accepts that some rights are necessary for the existence of democracy, a commitment to the ideal of the ‘rule by the people’ mandates that the content of these rights be determined (and is susceptible of being re-determined) by those subject to the constitutional regime.

The question of whether ordinary citizens should be allowed to ‘meddle’ with the fundamental rights contained in a constitution, as well as the dangers of the abolition of democracy through participatory procedures, will be addressed in Chapter 4 and will be developed through the rest of the book through a consideration of the theory of constituent power. As announced in the introduction, this book will argue that the democratic legitimacy of a constitutional regime rests precisely on whether it is susceptible to re-constitution. Nevertheless, it is important to consider here the relationship between rights and democracy, since that is where an important part of constitutionalism’s claim to a democratic pedigree lies.

Fundamental rights come in two main forms,40 and both of them can be said to have different types of connections to democracy. On the one hand, political rights, which are said to be constitutive of the very possibility of a democratic process; these are rights of political participation. On the other hand, individual rights that protect persons from state interference and which, although not having an obvious connection to democracy, can be seen as necessary for citizens to engage in any meaningful form of political participation. I will briefly examine below the ways in which both types of rights can be understood as connected to the democratic ideal, and address the question of whether in virtue of those connections they should be out of the scope of the decision-making power of popular majorities.

Politics, Individuals and Democracy

Political rights allow citizens to participate, individually and collectively, in order to attempt to solve their problems and to influence (and sometimes to determine) state policies. These rights, which are generally characterised as rights of political participation, are usually identified with the right to vote, but can be understood as including the right to freedom of assembly and the freedom of expression.⁴¹