07 October 2021

The Rise and Fall of World Constitutionalism

Twenty-five years ago, Bruce Ackerman announced the ‘rise of world constitutionalism’. Can we now proclaim its fall? And if so, is that something to mourn or to celebrate? Or is it a matter of indifference?

The period coinciding with the end of the Cold War saw a tremendous rise in constitutionalism, with a cottage industry developing across various jurisdictions and disciplines. As well as world constitutionalism, there was global constitutionalism, societal constitutionalism, European constitutionalism, as well as specialised versions such as economic constitutionalism and environmental constitutionalism.

Since 9/11, however, and especially after the global financial crisis, there has been a marked decline in constitutionalism, with concerns over the rise of executive powers, discretionary powers, emergency powers, affronts to the rule of law, and various forms of authoritarianism, all of which seem to challenge liberal constitutionalism and have in turn been challenged by constitutional courts (if to little avail). Constitutionalism has now given way to a new cottage industry, captured by the label of ‘populism’.

Did constitutionalism collapse under its own weight? Was it such a fragile accomplishment that it tumbled like a house of cards? The temptation might be to respond that ‘the chance would be a fine thing’! Liberal constitutions may have been fragile, but critics charged that they were also over-entrenched, frustrating political change and protecting vested interests. The new constitutionalism, in various stripes, empowered technocrats and experts and took place at the expense of democracy and representative politics. The constitutionalist turn to individual rights, managerialism, and modes of de-politicisation accompanied an emerging technocracy and even juristocracy. This hollowing out of democracy coincided with the encasing of the ‘free market’, growing inequality, and political disenchantment.

Constitutionalism, far from ruling the world, as some proclaimed, was only ruling a void, and increasing the democratic disconnect between rulers and ruled. When various crises hit, it should therefore have been little surprise that constitutional discourse would be swiftly revealed as barely covering an otherwise naked emperor.

If populism offered new clothes, it turned out that the political situation was more demanding. The populist turn, far from coming merely at the expense of constitutionalism, often comes with its own constitutional vocabulary and constitutional projects. As Bojan Bugaric and Mark Tushnet argue in a forthcoming book, there are versions of populism that are entirely compatible with liberal constitutionalism. The tension between populism and constitutionalism is far narrower than commonly supposed. Let’s not forget it was the conventional constitutionalism of the electoral college that got Trump elected in 2016, the popular vote going to Hillary Clinton.

And if the earlier proliferation of constitutionalism contributed to an increasingly fugitive democracy, authoritarian populism does nothing to recapture it. On the contrary, it exacerbates the democratic disconnect that liberal constitutionalism facilitated, and shows little sign of breaking from its dominant economic paradigm.

This does not, however, mean we should be indifferent to the fate of constitutionalism, or of populism. Its tribulations are instructive, but only if we get below the surface to consider the underlying material conditions.

The material constitution: exposing the void

There are coherent arguments against constitutionalism ‘as such’, but which operate through a particular kind of normative, analytical method, and which tend to focus on the illegitimacy of constitutional review by courts. If there is a generalisable antidote to ‘legal constitutionalism’ it is surely a more robust democratic constitution or simply put, more democratisation, avoiding an ideological attachment to constitutions of any stripe. We should not, in other words, fetishise the written constitution, or the unwritten one for that matter.

How can we avoid this constitutional fetishism? We can do so by remembering that formal constitutions (written and unwritten) exist in a tense relationship with what I call the ‘material constitution’. The material constitution includes the surface texts, but also the undercurrents of political unity, institutional support, social relations, and political objectives. The presence of surface constitutional conflicts between institutions, as for example in the Weiss saga, gives us clues that the undercurrents are moving in contradictory directions but these must be examined in their own right.

To examine constitutionalism in this dynamic, historical way, demands examination of the intersection of constitutional law and political economy. From that vantage point we can discern various tendencies beneath formal norms and normative postures, examine political and social tensions fermented and fomented by liberal constitutionalism which are not resolved but only concealed by authoritarian populism.

In modern politics, both constitutionalism and populism tend to suppress or bypass representative democracy and accountability in favour of strong expert-led governance (in the case of constitutionalism) or executive-led governance (in the case of populism). This also now occurs in combination, as when technocracy and political populism are mixed to give rise to a new breed of ‘technopopulism’, incorporating an anti-establishment rhetoric but retaining the prevailing constitutional structures, de-politicising strategies and political economy.

In an important sense the rise of liberal constitutionalism and the rise of executive and emergency authoritarianism alluded to above are inter-connected rather than in opposition. Constitutionalism and populism, at least in its authoritarian version, are then seen to be mutually related: action and reaction. In maximising managerialism and minimising representative democracy, both constitutionalism and populism aim at encasing the market or serving the interests of big market players, even if that periodically requires dramatic intervention under the sign of the exception in times of economic crisis.

Constitutionalism and populism, although pursued in different registers, are related forms of authoritarian liberalism, related not just in displaying family resemblances but also in a more causal, diachronic sense; constitutionalism created the conditions for populism to thrive and authoritarian populism in turn generates and provokes an increasingly authoritarian constitutionalist response.

Crises are significant, however, in that they shine a light into the undercurrents of constitutional discourse. In the long decade since the global financial crisis, this gave rise to various opportunities to contest the established order, which were for the most part wasted, notably by the failure of left populism to make its mark in Europe.

European constitutionalism: expanding the void

To pursue this point further requires an historical, contextual approach, which can only be sketched in outline here. The trajectory in postwar Europe was towards liberal constitutionalism and away from mass democracy. Postwar constitutionalism was pursued through the construction of counter-majoritarian institutions, which de-politicised increasing areas of policy, and de-democratised increasing areas of politics. It also developed through international and regional organisations, particularly the EU. This contributed to the transformation of the nation-state into the member-state, cementing a growing gap between domestic elites and their peoples.

This development also occurred informally, through the deradicalization of political parties on the left, abandoning Marxism and class struggle and embracing ideological Europeanism. If critical theory once engaged with the phenomenon of authoritarianism in diverse ways, charting the escape from political freedom and the turn to the private sphere, to consumerism and individualism, by the end of the cold war it had signalled a virtually complete retreat, accepting there was no alternative to capitalism. Discourse theory substituted material analysis.

In the academy, the discourse of European constitutionalism, far from filling the void, often expanded it, postnationalism offering a stepping stone to the constitution of a world society, in Jürgen Habermas’s influential formulation. To use Habermas’s own terminology, there appeared to be a growing mismatch between system and lifeworld, one which his theoretical and political moves only aggravated, his postnational constellation increasingly removed from any demos just as the actual demoi appeared to be shaken from their postwar passivity. Critical theorists had accepted the end of history thesis just when history was restarting in Western Europe with the end of the postwar consensus, as already announced by the social fracture in France in the early 1990’s and the petit oui on the Maastricht referendum.

This meant that when the postwar liberal paradigm was challenged, as it was in the Maastricht era, or when its norms had to be changed or set aside, as they were after the financial crisis, there was a political void to fill. This was filled in part by executive-bureaucratic and technocratic power and in part by what would be labelled authoritarian populists, often depending on whether the part was played by the liberal establishment or its rhetorical opponent. But it was also underwritten by critical theory’s detachment from the material constitution.

Precisely because of the shallowness of postwar constitutionalism, constitutional obstacles were relatively swiftly circumvented through emergency politics, in alliances of executive power and judicial acquiescence, as for example when the European Central Bank or the ‘formally informal’ Eurogroup stepped in to shore up a system that was not fit for purpose (or rather was fit for the purposes of capital accumulation in a regime that had over-heated). De-constitutionalisation, in other words, was the flipside of a previous dynamic of over-constitutionalisation.

Thus, when Macron, von der Leyen, or Barnier more recently adopt a sovereigntist position, whether in the name of Europe or of the member-state, emulating aspects of authoritarian populism, their message rings hollow but also exposes that their opposition to the ‘populists’ is largely illusory. 

So there may be significant rhetorical contestation in the EU against the vices of governments in Hungary and Poland, which itself overshadows that authoritarian populism is a much broader phenomenon, encompassing the Front Nationale in France, AfD in Germany, la Lega in Italy. But just as this group emits no real desire to leave the EU, the EU does not get serious about kicking Hungary or Poland out. On the contrary, the ruling European elite speaks about defending a European way of life against the outsider, or generates the fear of a geopolitical threat from Russia as the new enemy without, emulating the populism it otherwise distances itself from in its attempt to bolster its own liberal authoritarianism.

During the euro crisis, the sovereign emerged as he who could defend market liberalism and push the class project of austerity, even where this required sporadic state-like interventions, with EU institutions insisting on particular political-economic reforms in a way that was stridently anti-pluralistic (a trait often presented as defining populism). Was there a set of institutions more ideologically committed to neoliberalism than the ‘Troika’?

That there should be a reaction to this, and even various uprisings against it, is hardly surprising. And yet the left was so committed to an ideological Europeanism after decades of de-radicalisation that it couldn’t think politically about (let alone act on) the possibility of rupture from the system, despite that system entrenching a highly conservative economic settlement and utilising increasingly repressive tactics. Having embraced post-politics, post-sovereignty and the ‘end of history’, the euro crisis exposed the lack of coherent opposition to the status quo, the left vacating the terrain of Euroscepticism for the right, which would profit from it without needing to offer systemic alternatives.

A general crisis of liberalism

The ‘strange non-death of neoliberalism’ after the global financial crisis was already a cause of vexation for social democrats. In some ways this should have been unsurprising – as Polanyi noted in the interwar era, the tendency for liberals would always be to say the social problems were the result of liberalism having not gone far enough.

There are now signs, however, after many false alarms, that we can finally proclaim neoliberalism’s demise with more confidence, noting the dramatic and sustained state intervention in the economy since the Covid-19 pandemic. What should we make of this change?

Although the ‘small-state’ rhetoric of neoliberalism was always misleading, its disappearance is noteworthy, not least since language is important in politics. To the extent there have been changes in political economy these have occurred largely from the top-down rather than in response to pressure from the bottom up. But if now far less dogmatically attached to privatisation, cutting expenditure, and free competition, the political authoritarianism of the system remains in place and, in some respects, has been dramatically extended, with democratic politics itself being so restricted through the Covid pandemic. The pandemic may have generated an apparent shift away from neoliberal political economy, but its structures and aims remain. With some important exceptions, the left remains mute, largely unable to offer alternatives to the coercive and disciplinary logic of lockdown.

Neoliberalism, and indeed economic liberalism before neoliberalism, always already relied on a strong executive branch and state apparatus, as