Research Handbook on the Politics of Constitutional Law (Research Handbooks in Law and Politics series) 1839101636, 9781839101632

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RESEARCH HANDBOOK ON THE POLITICS OF CONSTITUTIONAL LAW

RESEARCH HANDBOOKS IN LAW AND POLITICS Research Handbooks within this series provide state-of-the-art analysis of discrete areas of research that sit at the intersection of law and political science. Through exploring the legal aspects of political science and the impact of politics on the formation and application of the law this series acts as a platform for cutting-edge interdisciplinary research. The Research Handbooks explore legal and political science approaches to key topics and domains, such as: the actions of legal institutions, the application of the law, judicial politics, constitutions, global governance, law and political theory, democracy, diplomacy, and federalism, among others. Edited by leading scholars in their respective fields, volumes bring together authors with diverse expertise to provide rounded analysis of the substantive issue at hand. Due to the interdisciplinary nature of the series, the volumes within will not only act as valuable resources to those researching the nexus of law and politics but also provide new insights for those whose area of focus sits within either of the respective fields. The research presented will make significant new contributions to existing debates within the broadening study of law and political science whilst also acting as a starting point for fresh analysis. For a full list of Edward Elgar published titles, including the titles in this series, visit our website at www​.e​-elgar​.com​.

Research Handbook on the Politics of Constitutional Law Edited by

Mark Tushnet William Nelson Cromwell Professor of Law Emeritus, Harvard University, USA

Dimitry Kochenov Head of Rule of Law Research Group, CEU Democracy Institute, Budapest, Hungary and Professor of Legal Studies, CEU Department of Legal Studies, Vienna, Austria

RESEARCH HANDBOOKS IN LAW AND POLITICS

Cheltenham, UK • Northampton, MA, USA

© Mark Tushnet and Dimitry Kochenov 2023

Cover image: Grisha Kochenov† All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2023945115 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781839101649

ISBN 978 1 83910 163 2 (cased) ISBN 978 1 83910 164 9 (eBook)

Contents

List of contributorsviii Table of acronyms and abbreviationsx Table of casesxiv 1

Introduction to the Research Handbook on the Politics of Constitutional Law1 Mark Tushnet and Dimitry Kochenov

PART I

FOUNDATIONS

2

The ideal of the rule of law and private power Martin Krygier

14

3

The politics of legal ideology Julie Novkov

30

4

Constitutionalism and behavioural concepts Dariusz Adamski

46

5

Emotions in constitutional law András Sajó

70

6

Popular sovereignty, constitutional democracy and the mental construal of political representations Zoran Oklopčić

7

Liminal rights: sovereignty, constitutions and borders Audrey Macklin

105

8

Unrecognised entities: politics of constitutionalism at the fringes Aistė Mickonytė and Benedikt C. Harzl

128

9

The politics of constitution making Mark Tushnet

143

10

The constitutional politics of emergency powers Victor V. Ramraj

163

11

Japan: a case against the amendment politics? Tokujin Matsudaira

176

12

The politics of constitutional interpretation Tamas Gyofry

199

v

88

vi  Research handbook on the politics of constitutional law PART II

STRUCTURES

13

The gradual creation of a Leviathan: Latin America’s main constitutional failure Roberto Gargarella

14

Constitutional politics of federalism in Latin America Juan F. González Bertomeu

228

15

The rise and protection of judicial independence Georg Vanberg, Benjamin Broman and Christopher Ritter

246

16

Politics of judicial governance David Kosař and Katarína Šipulová

262

17

The politics of judicial dialogue David S. Law and Mark Tushnet

286

18

Republicanism redefined: the constitutional status of political parties after the ratification of the twelfth amendment Franita Tolson

310

19

Transatlantic ‘administrative constitutionalism’: New Deal models and supranational governance in Europe since the 1950s Peter L. Lindseth

329

20

The politics of the constitutionalisation of corporate power in Europe Jacquelyn D. Veraldi and Matthew R. Hassall

350

21

Advocates general and the court of justice: the early years Margot Horspool

377

22

The neo-liberal bias of the EU constitutional order: a critical analysis Bojan Bugarič

386

23

The politics of the constitutionalisation of international law: The United Nations sovereign (in)equality of states, good neighbourliness and use of force 410 Elena Basheska

215

PART III RIGHTS 24

The politics of constitutional rights Adam Chilton and Mila Versteeg

432

25

Pretext as a legal matter Mariam Begadze

453

26

The constitutional politics of religion Ioanna Tourkochoriti

467

Contents  vii 27

The constitutional politics of merit Sarah Ganty

483

28

Minorities: a view from South Asia Kamala Sankaran

514

29

The politics of sexual identity and the emerging constitutional battles in Europe 532 Alina Tryfonidou

30

Abstract citizenship in the age of concrete human rights Dimitry Kochenov

550

PART IV FUTURES 31

The Cold War’s continuing power: US constitutional law and historical memory571 Aziz F. Rana

32

The politics of constitutional memory: mnemonic constitutionalism, historical memory, and collective identity in Poland, Germany and Russia Aleksandra Gliszczyńska-Grabias

33

Use, misuse and abuse of constitutional identity in Europe Petra Bárd, Nóra Chronowski and Zoltán Fleck

611

34

Populist constitutional politics and civil society fundamentalism Paul Blokker

634

35

Militant democracy: a friend or enemy of democratic backsliding? Violeta Beširević

658

36

Hindu Zion: the politics of constitutional accommodation Suryapratim Roy and Rahul Sambaraju

674

37

The politics of constitutional meltdown Paul Craig

695

38

The problem of evil law Anna Lukina

710

592

Index729

Contributors

Dariusz Adamski, Faculty of Law, Administration and Economics, University of Wrocław Petra Bárd, Radboud University, Nijmegen and Central European University (CEU) Democracy Institute, Budapest Elena Basheska, Central European University (CEU) Democracy Institute, Budapest Mariam Begadze, Central European University (CEU) Department of Legal Studies, Vienna Violeta Beširević, Union University Law School, Belgrade and Central European University (CEU) Democracy Institute, Budapest Paul Blokker, Department of Sociology and Business Law, University of Bologna Benjamin Broman, Trinity College of Arts and Sciences, Duke University Bojan Bugarič, Faculty of Law, University of Sheffield Adam Chilton, Law School, University of Chicago Nóra Chronowski, Hungarian Academy of Sciences Centre of Excellence, Budapest Paul Craig, St John’s College, Oxford Zoltán Fleck, Faculty of Law, Eötvös Loránd University, Budapest Sarah Ganty, Yale Law School and Faculty of Law, Ghent University Roberto Gargarella, University of Buenos Aires; University Torcuato di Tella and the National Research Council, CONICET (Argentina) Aleksandra Gliszczyńska-Grabias, Institute of Law Studies of the Polish Academy of Sciences, Warsaw Juan F. González Bertomeu, Instituto Técnologico Autónomo de México (ITAM) Law School, Mexico City Tamas Gyofry, Law School, University of Aberdeen Benedikt C. Harzl, Centre for East European Law and Eurasian Studies, Faculty of Law, University of Graz Matthew R. Hassall, Trinity College, University of Cambridge Margot Horspool, British Institute of International and Comparative Law (BIICL), London Dimitry Kochenov, Central European University (CEU) Democracy Institute, Budapest and CEU Department of Legal Studies, Vienna David Kosař, Faculty of Law, Masaryk University, Brno viii

Contributors  ix Martin Krygier, Faculty of Law and Justice, University of New South Wales and Central European University (CEU) Democracy Institute, Budapest David S. Law, School of Law, University of Virginia Peter L. Lindseth, School of Law, University of Connecticut Anna Lukina, Wolfson College, University of Cambridge Audrey Macklin, Faculty of Law, University of Toronto Tokujin Matsudaira, Faculty of Law, Kanagawa University Aistė Mickonytė, Centre for East European Law and Eurasian Studies and the Institute of the Foundations of Law, Faculty of Law, University of Graz Julie Novkov, Department of Political Science, State University of New York (SUNY) at Albany Zoran Oklopčić, Institute of European, Russian and Eurasian Studies, Carleton University Victor V. Ramraj, Faculty of Law, University of Victoria Aziz F. Rana, Cornell Law School Christopher Ritter, Trinity College of Arts and Sciences, Duke University Suryapratim Roy, Trinity School of Law, Trinity College Dublin András Sajó, Central European University (CEU) Department of Legal Studies, Vienna and CEU Democracy Institute, Budapest Rahul Sambaraju, School of Psychology, University of Edinburgh Kamala Sankaran, National Law School of India University, Bengaluru Katarína Šipulová, Judicial Studies Institute, Masaryk University, Brno Franita Tolson, School of Law, University of Southern California Ioanna Tourkochoriti, Baltimore Law School Alina Tryfonidou, University of Cyprus and the University of Reading, Faculty of Law Mark Tushnet, Harvard Law School Georg Vanberg, School of Law, Duke University Jacquelyn D. Veraldi, Trinity College, Cambridge and Central European University (CEU) Democracy Institute, Budapest Mila Versteeg, Law School, University of Virginia

Table of acronyms and abbreviations

AGs AMUE ARENA AWS BIICL BJP BOLD BverfG BVerwG CAA ConstAA CAD CAP CDJ CDP CEE CEN CENELEC CEO CEPEJ CETA CJEU CoE COMPAS CVM DNA DNR/DPR EAW ECB ECHR ECJ

Advocates General at the Court of Justice of the European Union Association for the Monetary Union of Europe Alianza Republicana Nacionalista/Nationalist Republican Alliance Akcja Wyborcza Solidarność/Solidarity Electoral Action Party British Institute of International and Comparative Law Bharatiya Janata Party Blood-oxygen-level-dependent Bundesverfassungsgericht/ Federal Constitutional Court Bundesverwaltungsgericht/ Federal Administrative Court Citizenship Amendment Act Constitution Amendment Act Constituent Assembly Debates Common Agricultural Policy Constitutional Democratic Party of Japan Constitutional Democratic Party Central and Eastern Europe Comité Européen de Normalisation/ European Committee for Standardization Comité Européen de Normalisation Electrotechnique/ European Committee for Electrotechnical Standardization Chief Executive Officer European Commission for the Efficiency of Justice  Comprehensive Economic and Trade Agreement Court of Justice of the European Union Council of Europe University of Oxford’s Centre on Migration, Policy and Society Cooperation and Verification Mechanism Deoxyribonucleic Acid Донецкая Народная Республика/Donetsk People’s Republic European Arrest Warrant European Central Bank European Convention on Human Rights European Court of Justice x

Table of acronyms and abbreviations  xi ECLAC ECLI ECOWAS ECSC ECtHR EDC EEC EHRR EJIL EMU ERT ETA EU FCC FCPA FPTP GA GDP GDR GFCC GOP HCC HCNM HDI ICC ICCPR ICESCR IDEA ILC IMF INE INRA IPCC ITEP IWW JCP JI

Economic Commission for Latin America and the Caribbean European Case Law Identifier Economic Community of West African States European Coal and Steel Community European Court of Human Rights European Defense Community European Economic Community European Human Rights Case Reports European Journal of International Law European Monetary Union European Roundtable of Industrialists Euskadi Ta Askatasuna/Basque Homeland and Liberty European Union French Constitutional Council Foreign Corrupt Practices Act First-past-the-post General Assembly Gross Domestic Product German Democratic Republic German Federal Constitutional Court Grand Old Party Hungarian Constitutional Court High Commissioner on National Minorities Human Development Index International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Institute for Democracy and Electoral Assistance International Law Commission International Monetary Fund National Electoral Institute Institute of National Remembrance Intergovernmental Panel on Climate Change Institute on Taxation and Economic Policy Industrial Workers of the World Japanese Communist Party Judicial Independence

xii  Research handbook on the politics of constitutional law JSG LDP LGB LGBTQ LNR/LPR LPR MELA MERCOSUR MERS MFF NAACP NATO NGEU NGO NKR NKVD NPD NRC NSC OECD OSCE PCIJ PCC PCR PEPP PiS PM PRI PSPP QMV RIAA RCC RSFSR RSS S.C. SARS

Judicial Self-Governance Liberal Democratic Party Lesbian, Gay and Bisexual Lesbian, Gay, Bisexual, Transgender, and Queer (or Questioning) Луганская Народная Республика/ Luhansk People’s Republic Liga Polskich Rodzin/League of Polish Families Memory Laws in European and Comparative Perspective Mercado Común del Sur/Southern Common Market Middle East Respiratory Syndrome Multiannual Financial Framework National Association for the Advancement of Colored People North Atlantic Treaty Organization Next Generation EU COVID-19 recovery fund Non-governmental organization Nagorno-Karabakh Republic/Republic of Artsakh Народный комиссариат внутренних дел/ People’s Commissariat for Internal Affairs National Democratic Party of Germany National Register for Citizens National Security Council Organization for Economic Co-operation and Development Organization for Security and Co-operation in Europe Permanent Court of International Justice Polish Constitutional Court Polymerase Chain Reaction Pandemic Emergency Purchase Programme Prawo i Sprawiedliwość/Law and Justice Prime Minister Institutional Revolutionary Party Public Sector Purchase Programme Qualified Majority Voting Reports of International Arbitral Awards Romanian Constitutional Court Russian Soviet Federative Socialist Republic Rashtriya Swayamsevak Sangh Supreme Court of Canada in the Quebec Secession Reference Severe Acute Respiratory Syndrome

Table of acronyms and abbreviations  xiii SCAP SCC SCJ SCOTUS SDF SEA SEALDs SG SIIJ SLD SPR STF TEU TFEU TK ToM TRNC UAE UCLG UDHR UK UN UNGA UNHCR UNSC US/A USC USSC USSR VAT WW

Security Content Automation Protocol Supreme Court of Canada Science Council of Japan Supreme Court of the United States Self-Defense Forces Single European Act Students Emergency Action for Liberal Democracy Soka Gakkai Secția pentru Investigarea Infracțiunilor din Justiție/ Section for the Investigation of Offences in the Judiciary Sojusz Lewicy Demokratycznej/Solidarity Electoral Action Self-Defence of the Republic of Poland The Brazilian Federal Supreme Court Treaty on the European Union Treaty on the Functioning of the European Union Trybunał Konstytucyjny Theory of mind Turkish Republic of Northern Cyprus United Arab Emirates United Cities and Local Governments Universal Declaration of Human Rights United Kingdom United Nations United Nations General Assembly United Nations High Commissioner for Refugees United Nations Security Council United States/of America United States Code Supreme Court of the United States Union of Soviet Socialist Republics Value-added Tax World War

Table of cases

NATIONAL BODIES [in alphabetical order by country] Bangladesh Supreme Court

Bangladesh Italian Marble Works Ltd. v Government of Bangladesh522

Canada Federal Court

Z(Y) v Canada (Minister of Citizenship & Immigration), [2015] FC 892112

Federal Court of Appeal

Kreishan v Canada (Minister of Citizenship and Immigration), [2019] FCA 223116 Moretto v Canada (Minister of Citizenship and Immigration), [2019] FCA 261116 Revell v Canada (Citizenship and Immigration), [2019] FCA 262116

Judicial Committee of the Privy Council AG Canada v Cain, [1906] AC 452

108, 122

Supreme Court

Singh v Canada (Minister of Employment and Immigration), [1985] 1 SCR 177113 R. v Morgentaler, [1988] 1 SCR 30115 R. v Keegstra, [1990] 3 SCR 69780 114, 116 Chiarelli v Canada (Minister of Employment and Immigration), [1992] 1 SCR 711 R. v Daviault, [1994] 3 SCR 63302 Reference re Remuneration of Judges of the Provincial Court (PEI), [1997] 3 SCR 3274 New Brunswick (Minister of Health and Community Services) v G. (J.), [1999] 3 SCR 46115 Suresh v Canada, [2002] 1 SCR 3 114, 115 114, 115 Medovarski v Canada, [2005] 2 SCR 539 Multani v Commission Scolaire Marguerite-Bourgeoys, [2006] SCC 6474 114, 115 Canada v Charkaoui, [2008] 2 SCR 326 R. v N.S., [2012] SCC 72473 Febles v Canada (MCI), [2014] 3 SCR 431115 Loyola High School v Quebec (Attorney General), [2015] SCC 12473 Mouvement laïque québécois v Saguenay (City), [2015] SCC 16473 Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), [2017] SCC 54474 Law Society of British Columbia v Trinity Western University, [2018] SCC 32473 City of Toronto v Attorney General of Ontario, [2021] SCC 34303 R. v Brown, [2022] SCC 18302

xiv

Table of cases  xv France Court of Cassation

Decision n. 2484 of 22nd November 2017 (13-19.855) – Cour de Cassation – Chambre sociale472

Constitutional Council

FCC 2005-524/525 DC [2005]615 FCC 2006-540 DC [2006]615 FCC 2017-749 DC [2017]615 FCC 2018-765 DC [2018]615 FCC 2018-750/751 DC [2018]615 FCC 2021-940 QPC [2021]615

Federal Republic of Germany Federal Administrative Court

GFAC, Judgment of 28 Nov. 1975, BVerwGE 50, 11; NJW 1976, 1224273

Federal Constitutional Court judgments

GFCC Solange I. BVerfGE 37, 271. 1974. 291, 616 GFCC Solange II. BVerfGE 73, 339. 1986.616 GFCC Maastricht BVerfGE 89, 155. 1993.616 GFCC Bananenmarktordnung BVerfGE 102, 147. 2000.616 616, 621 GFCC Lisbon BVerfGE 123, 267. 2009. GFCC Honeywell BVerfGE 126, 286. 2010.616 GFCC European Arrest Warrant BVerfGE 140, 317. 2015.616 GFCC OMT BVerfGE 142, 123. 2016.616 616, 624 GFCC PSPP BVerfGE 154, 17. 2020.

Greece The Greek Ombudsman

Case 1546/28.1.2004477 Case 2908/18.2.2005477

Hungary Constitutional Court

HCC 22/2016. (XII.5.). 2016620 HCC 32/21. (XII.20.). 2021622

India Supreme Court

Sardar Syedna Taher Saifuddin Saheb v The State of Bombay, AIR (1962) SC 853520 The Ahmedabad St. Xavier’s College Society v State of Gujarat (1974) 1 SCC 717519 A.P. Christian Medical Educational Society v Government of Andhra Pradesh (1986) 2 SCC 667525 St. Stephen’s College v University of Delhi (1992) 1 SCC 558525 R.C. Poudyal v Union of India (1994) Supp. (1) SCC 324527 Dr Ramesh Yeshwant Prabhoo v Prabhakar Kashinath Kunte (1996) 1 SCC 130, 22480 N. Adithayan v Travancore Devaswom Board (2002) 8 SCC 106521

xvi  Research handbook on the politics of constitutional law TMA Pai Foundation v State of Karnataka (2002) 8 SCC 481 519, 524, 525 Sarbananda Sonowal v Union of India (2005) 5 SCC 665679 Bal Patil v Union of India (2005) 6 SCC 690520 Superintendent of Post Offices v Babu (2007) 2 SCC 337480 Society for Un-Aided Private Schools of Rajasthan v Union of India (2012) 6 SCC 1480 Pramati v Union of India (2014) 8 SCC 1525 Rajbala and Ors. v State of Haryana and Ors. (2015) 1 SCC 463498 Shayara Bano v Union of India (2017) 9 SCC 1480 Puttaswamy v Union of India (2017) 10 SCC 1675 Indian Young Lawyers Association v State of Kerala (2019) 11 SCC 1521

Italy Constitutional Court

Judgment of the Italian Constitutional Court sp. [2012] No. 223/2012272

Malaysia High Court

Lina Joy v Majlis Agama Islam & Ors [2007] 4 MLJ 585 478

Federal Court

ZI Publications Sdn Bhd & Anor v Kerajaan Negeri Selangor [2016] 1 MLJ 153479

Poland District Court

Warsaw [2018], case XIII U 326/18599 Łódź [2022], case VIII U 1812/21599

Constitutional Court

PCC decision K 18/04. 2004623 PCC decision K 3/21. 2021623

Court of Appeal

Warsaw [2016], 2021, I ACa 300/21601

Romania Constitutional Court

RCC decision 390/2021. 2021619

Russian Federation Moscow City Court

Moscow City Court Presidium (case N 44г-127/15)606

Table of cases  xvii Spain Supreme Court

Case [2006] No. 2004\30 (STS, 3ª)272

Sri Lanka Supreme Court

Ashik v Bandula and Others (2007) 1 Sri Lanka L. Rep. 191479

United Kingdom Court of Appeal

R v Governor of Pentonville Prison, Ex parte Azam, [1973] 2 All ER 741108

United States of America Supreme Court

McCulloch v Maryland, 17 U.S. 316 (1819) 453, 457 Chae Chin Ping v United States, 130 U.S. 581 (1889)108 Nishimura Ekiu v United States, 142 U.S. 651 (1892)108 Fong Yue Ting v United States, 149 U.S. 698 (1893)109 Plessy v Ferguson, 163 U.S. 537 (1896)38 Yamataya v Fisher, 189 U.S. 86 (1903)109 Debs v United States, 249 US 211 (1919)584 324, 325, 326 Newberry v United States, 256 U.S. 232 (1921) 324, 325 Nixon v Herndon, 273 U.S. 536 (1927) 324, 325 Nixon v Condon, 286 U.S. 73 (1932) Grovey v Townsend, 295 U.S. 45 (1935) 324, 326 ALA Schechter Poultry Corp v United States, 295 U.S. 495 (1935)334 Humphrey’s Executor v United States, 295 U.S. 602 (1935)332 180, 456 United States v Carolene Products Co., 304 U.S. 144 (1938) United States v Classic, 313 U.S. 299 (1941) 325, 327 Smith v Allwright, 321 U.S. 649 (1944)326 584, 667 Korematsu v United States, 323 U.S. 214 (1944) Knauff v Shaughnessy, 338 US 537 (1950) 110, 111 Dennis v United States, 341 US 494 (1951)584 Harisiades v Shaughnessy, 342 US 580 (1952)584 110, 111 Shaughnessy v Mezei, 345 U.S. 206 (1953) Terry v Adams, 345 U.S. 461 (1953) 326, 327 487, 585 Brown v Board of Education of Topeka, 347 U.S. 483 (1954) McLaughlin v Florida, 379 U.S. 184 (1964)39 Loving v Virginia, 388 U.S. 1 (1967)39 Brandenburg v Ohio, 395 U.S. 444 (1969)84 Griggs v Duke Power Co., 401 U.S. 424 (1971)491 Palmer v Thompson, 403 U.S. 217 (1971)457 Kleindienst v Mandel, 408 U.S. 753 (1972)109 57, 58 Buckley v Valeo, 424 U.S. 1 (1976) Washington v Davis, 426 U.S. 229 (1976) 457, 458 Arlington Heights v Metropolitan Housing Dev Corp., 429 U.S. 252 (1977)457 National Socialist Party of America v Village of Skokie, 432 U.S. 43 (1977)84 Personnel Adm’r of Massachusetts v Feeney, 442 U.S. 256 (1979)457

xviii  Research handbook on the politics of constitutional law Stone v Graham, 449 US 39 (1980)472 109, 110 Landon v Placensia, 459 U.S. 21 (1982) Marsh v Chambers, 463 US 783 (1983)471 Texas v Johnson, 491 U.S. 397 (1989)82 County of Allegheny v American Civil Liberties Union, 492 U.S. 573 (1989)471 Planned Parenthood of Southeastern Pennsylvania v Casey, 505 U.S. 833 (1992)457 Reno v Flores, 507 US 292 (1993)109 Capitol Square Review & Advisory Board v Pinette, 515 U.S. 753 (1995)471 Romer v Evans, 517 U.S. 620 (1996)458 312, 313, 326, 327 California Dem. Party v Jones 530 U.S. 567 (2000) Bush v Gore 531 U.S. 98 (2000)209 Zadvydas v Davis, 533 U.S. 678 (2001)111 Demore v Kim, 538 U.S. 510 (2003)111 Kelo v City of New London, 545 U.S. 469 (2005)458 Gonzales v Carhart, 550 U.S. 124 (2007)80 57, 58 Citizens United v Federal Election Commission, 558 U.S. 310 (2010) Hosanna-Tabor Evangelical Lutheran Church and Sch v EEOC, 132 SCt 694 (2012)472 United States v Windsor, 570 U.S. 744 (2013)458 McCutcheon v Federal Election Commission, 572 US 185 (2014)58 Town of Greece v Galloway, 572 U.S. 565 (2014)471 EEOC v Abercrombie & Fitch Stores Inc, 575 U.S. 1 (2015)471 111, 119 Kerry v Din, 576 U.S. 86 (2015) Fisher v University of Texas at Austin, 579 U.S. (2016)458 Jennings v Rodriguez, 583 US ___ (2018)111 112, 458, 667 Trump v Hawaii, No. 17-965, 585 U.S. ___ (2018) Rucho v Common Cause, 139 U.S. 2484 (2019)458 Espinoza v Montana Department of Revenue, 591 U.S. ___ (2020)471

INTERNATIONAL AND SUPRANATIONAL BODIES [in alphabetical order] Court of Justice of the European Union Case 1/54 France v High Authority ECLI:EU:C:1954:7382 Case 7/54 Groupement des industries sidérurgiques Luxembourgeoises ECLI:EU:C:1956:2383 Case 8/55 Fédération Charbonnière de Belgique v High Authority ECLI:EU:C:1956:11382 Case 26/62 van Gend en Loos v Netherlandse administratie van belastingen ECLI:EU:C:1963:1361, 377, 378, 382, 383, 384, 534 Joined cases 28/62, 29/62 and 30/62 Da Costa en Schaake NV, Jacob Meijer NV, Hoechst-Holland NV v Netherlands Inland Revenue Administration ECLI:EU:C:1963:6382 361, 382, 534 Case 6/64 Costa v ENEL ECLI:EU:C:1964:34 Case 29/69 Stauder ECLI:EU:C:1969:57534 Case 11/70 Internationale Handelsgesellschaft ECLI:EU:C:1970:114542 Case 6/72 Continental Can v Commission ECLI:EU:C:1973:22384 Case 8/74 Procureur du Roi v Benoît and Gustave Dassonville ECLI:EU:C:1974:82390 Case 120/78 Rewe Central AG (Cassis de Dijon) ECLI:EU:C:1979:43 390, 391 Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament ECLI:EU:C:1986:166 351, 534 Opinion 1/91 Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area ECLI:EU:C:1991:490351

Table of cases  xix Case C-13/94 P and S v Cornwall City Council ECLI:EU:C:1996:170533 Case C-85/96 María Martínez Sala v Freistaat Bayern ECLI:EU:C:1998:217490 Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve ECLI:EU:C:2001:458490 Case C-15/00 Commission v European Investment Bank ECLI:EU:C:2003:396351 Case C-60/00 Carpenter v Secretary of State for the Home Department ECLI:EU:C:2002:434542 Case C-117/01 KB v National Health Service Pensions Agency and Another ECLI:EU:C:2004:7533 Case C-456/02 Michel Trojani v Centre public d’aide sociale de Bruxelles (CPAS) ECLI:EU:C:2004:488 490 Case C-423/04 Richards v Secretary of State for Work and Pensions ECLI:EU:C:2006:256533 Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, ECLI:EU:C:2007:809 394 Case C-402/05P and C-415/05P Kadi and Al Barakaat v Council ECLI:EU:C:2008:461351 Case C-438/05 International Transport Workers’ Federation, Finnish Seamen’s Union v Viking Line ABP, OÜ VikingLine Eesti ECLI:EU:C:2007:772394 Case C-267/06 Maruko ECLI:EU:C:2008:179538 Case C-346/06, Rechtsanwalt Dr. Dirk Rüffert v Land Niedersachsen ECLI:EU:C:2008:189394 Case C-468/06 to 478/06 Sot Lélos kai Sia EE and Others v GlaxoSmithKline ECLI:EU:C:2008:504369 Case C-135/08 Janko Rottman v Freistaat Bayern ECLI:EU:C:2010:104561 Case C-147/08 Römer ECLI:EU:C:2011:286538 Case C-34/09 Ruiz Zambrano v Office national de l’emploi ECLI:EU:C:2011:124543 Case C-81/12 Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării ECLI:EU:C:2013:275541 Case C-267/12 Hay ECLI:EU:C:2013:823538 Case C-286/12 European Commission v Hungary ECLI:EU:C:2012:687461 Case C-333/13 Elisabeta Dano and Florin Dano v Jobcenter Leipzig ECLI:C:2014:2358489 Case C-370/12 Pringle v Ireland, ECLI:EU:C:2012:756401 Case C-67/14 Jobcenter Berlin Neuköln v Nazifa Alimanović and Others ECLI:C:2015:597489 Case C-157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v 472, 665 G4S Secure Solutions NV ECLI:EU:C:2017:203 Case C-188/15 Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA ECLI:EU:C:2017:204 472, 665 Case C-443/15 Parris v Trinity College Dublin and Others ECLI:EU:C:2016:897538 Case C-57/16 P ClientEarth v Commission ECLI:EU:C:2018:660365 Case C-64/16 Associação Sindical dos Juízes Portugueses v Tribunal de Contas ECLI:EU:C:2018:117624 533, 538 Case C-415/16 MB v Secretary of State for Work and Pensions ECLI:EU:C:2018:492 Case C-673/16 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne ECLI:EU:C:2018:385 539, 545, 617 Case C-507/17 NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford ECLI:EU:C:2020:289541 Case C-24/18 A.B. and Others v Krajowa Rada Sądownictwa and Others ECLI:EU:C:2021:153462, 623 Case C-66/18 Commission v Hungary ECLI:EU:C:2020:792622 Case C-78/18 Commission v Hungary ECLI:EU:C:2020:476622 Case C-175/18 P PTC Therapeutics International v EMA ECLI:EU:C:2020:23365 Case C-192/18 Commission v Poland (Independence of Ordinary Courts) ECLI:EU:C:2019:924461 Case C-216/18 PPU Minister for Justice and Equality v LM ECLI:EU:C:2018:586651 Case C-418/18 P Patrick Grégor Puppinck and Others v European Commission ECLI:EU:C:2019:1113365 Case C-619/18 European Commission v Republic of Poland, Judgment of the Court ECLI:EU:C:2019:531461 Case C-718/18 Commission v Germany ECLI:EU:C:2021:662365 Case C-808/18 Commission v Hungary ECLI:EU:C:2020:1029622 Case C-83/19 Asociaţia‘Forumul Judecătorilor din România’ ECLI:EU:C:2021:393619

xx  Research handbook on the politics of constitutional law Case C-502/19 Junqueras Vies ECLI:EU:C:2019:1115 365 365, 626 Case C-896/19 Repubblika v Il-Prim Ministru ECLI:EU:C:2021:311 Case C-160/20 Stichting Rookpreventie Jeugd and Others v Staatssecretaris van Volksgezondheid, Welzijn en Sport ECLI:EU:C:2022:101365 617, 618 Case C-490/20 V.M.A. v Stolichna obshtina, rayon ‘Pancharevo’ ECLI:EU:C:2021:1008 Case C-156/21 Hungary v Parliament and Council ECLI:EU:C:2022:97 365, 626, 627 Case C-157/21 Poland v Parliament and Council ECLI:EU:C:2022:98626

European Court of Human Rights Handyside v United Kingdom [1976] App. No. 5493/7292 Arrowsmith v United Kingdom [1978] App. No. 7050/7584 B v France [1992] App. No. 13343/87533 Otto-Preminger-Institut v Austria [1994] App. No. 13470/8781 Soering v UK [1989] App. No 14038/88117 Kokkinakis v Greece [1993] App. No. 14307/88477 Cruz Varas v Sweden [1991] App. No 15576/89117 United Communist Party of Turkey and Others v Turkey [1998] App.no. 19392/92666 Chahal v the United Kingdom [1996] App. No. 22414/93 118 I v UK [2002] App. No. 25680/94533 Goodwin v UK [2002] App. No. 28957/95533 Van Kück v Germany [2003] App. No. 35968/97533 Refah Partisi (The Welfare Party) And Others v Turkey [2003] App. Nos. 41340/98, 41342/98, 41343/98 and 41344/98666 Nachova and Others v Bulgaria [2005] App. Nos. 43577/98 and 43579/9892 Gorzelik and Others v Poland [2004] App. No. 44158/98666 Leyla Şahin v Turkey [2005] App. No. 44774/98 665, 667 Bosphorus Hava Yollari Turizm ve Ticaret AS v Ireland [2005] App. No. 45036/98534 Ilascu and Others v Moldova and Russia [2014] App. No. 48787/99141 Garaudy v France [2003] App. No. 65831/01596 Saadi v the United Kingdom [2008] App. No. 13229/03461 L v Lithuania [2007] App. No. 27527/03533 Grant v UK [2006] App. No. 32570/03533 Schalk and Kopf v Austria [2010] App. No. 30141/04536 Schlumpf v Switzerland [2009] App. No. 29002/06533 Lautsi and Others v Italy [2011] App. No. 30814/06667 Saada v Italy [2009] App. No. 37201/06118 540, 541 Vejdeland v Sweden [2012] App. No. 1813/07 Gas and Dubois v France [2012] App. No. 25951/07537 Y. Y. v Turkey [2015] App. No. 14793/08533 S. V v Italy [2018] App. No. 55216/08533 Vallianatos and Others v Greece [2013] App. Nos. 29381/09 and 32684/09538 Hämäläinen v Finland [2014] App. No. 37359/09538 Taddeucci and McCall v Italy [2016] App. No. 51362/09537 Jeunesse v Netherlands [2014] App. No. 12738/10 122, 123, 551, 561 Biao v Denmark [2016] App. No. 38590/10119 Oliari and others v Italy [2015] App. Nos. 18766/11 and 36030/11537 Sas v France [2014] App. No. 43835/11665 Baka v Hungary [2016] App. No. 20261/12460 Orlandi and Others v Italy [2017] App. Nos. 26431/12, 26742/12, 44057/12 and 60088/12538 Cumhuriyet Halk Partisi v Turkey [2016] App. No. 19920/13460 Belcacemi et Oussar v Belgium [2017] App. No. 37798/13665 A.P., Garçon and Nicot v France [2017] App. Nos. 79885/12, 52471/13 and 52596/13533 Merabishvili v Georgia [2017] App. No. 72508/13459

Table of cases  xxi Fedotova and others v Russia [2021] App. Nos. 40792/10, 30538/14 and 43439/14537 Aliyev v Azerbaijan [2018] App. Nos. 68762/14 and 71200/14459 X and Y v Romania [2021] App. Nos. 2145/16 and 20607/16533 Selahattin Demirtaş v Turkey (no. 2) [2020] App. No. 14305/17459 Şahin Alpay v Turkey [2018] App. No. 16538/17460 Chapin and Charpentier v France [2016] App. No. 40183/17537 Xero Flor w Polsce sp. z o.o. v Poland [2021] App. No. 4907/18 460, 623, 624 Guðmundur Andri Ástráðsson v Iceland [2020] App. No. 26374/18460 Carl Jóhann Lilliendahl v Iceland [2020] App. No 29297/18540 Reczkowicz v Poland [2021] App. No. 43447/19460 A.M. and Others v Russia [2021] App. No. 47220/19533 Dolińska-Ficek and Ozimek v Poland [2021] App. Nos. 49868/19 and 57511/19460

International Arbitrations Island of Palmas (Netherlands v USA) (1928) 2 RIAA 829-871

414, 415

International Court of Justice Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania) (Merits) [1949] ICJ Rep 4415 418, 422 Nicaragua case (Nicaragua v USA) (Merits) [1986] ICJ Rep. 98 Case Concerning Application of the International Convention on the Elimination of All Forms of. Racial Discrimination (Georgia v Russian Federation) [2011] ICJ Rep (Georgia v Russia)423 Allegation of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation) [2022] General List No.182423

Permanent Court of International Justice S.S. ‘Lotus’ (France v Turkey) [1927] PCIJ Rep Series A No 10415

United Nations Human Rights Committee Manuel Wackenheim v France Communication [2002] No 854/1999, U.N. Doc. CCPR/C/75/D/854/1999201

1. Introduction to the Research Handbook on the Politics of Constitutional Law Mark Tushnet and Dimitry Kochenov

Constitutional law is a ‘semi-autonomous’ discipline: Constitutional law as such consists of texts and doctrines interpreting those texts that constitute the discursive domain of professional lawyers. But, as all good constitutional lawyers know, those texts and doctrines are completely and complexly intertwined with the political systems within which constitutional law is found. For that reason, understanding constitutional law means understanding constitutional politics as well. This handbook deals with the politics of constitutional law around the world. We have chosen to organise this collection around ‘foundations,’ ‘structures,’ ‘rights,’ and ‘futures.’1 The content of the categories of ‘structures’ and ‘rights’ is obvious; by ‘foundations,’ we mean the key reasons, principles, trends, and extra-legal considerations underpinning constitutional creation and design; and by ‘futures,’ some of the questions that seem likely to shape constitutional development around the world. The distinction between law and politics is of course a contested one and the contributors to this handbook implicitly offer varying perspectives on it. Further, the very idea that there can be systematic research on comparative constitutional law (and politics) was itself contested in the late nineteenth and early twentieth centuries. Influenced by Montesquieu’s thought that each nation’s law, especially its fundamental law, reflected a distinctive national ‘spirit’ and by German idealist thinking about what constitutes a nation, scholars of comparative law in that era excluded public law from their purview.2 Against that sceptical view was another tradition, dating back to Aristotle’s Politics. In that tradition all human beings had a common core of values and emotions, and scholars could offer systematic accounts of how those values and emotions played out in political interactions.3 That tradition developed initially in the field of comparative politics, which took the common core as the inputs into the varying ways organised societies attempted to solve universal or near-universal problems of governance. Organised societies had to solve problems of interpersonal violence and, more generally, of coordinating actions – as we might put it today, choosing policies – that would make people (sometimes all people, sometimes ‘elites’ 1 We note that in doing so we expressly rejected including a section on ‘regions’ in the Handbook, on the ground that, within the constraints of length we face, our categories captured more of interest than would the inclusion of a regional focus. 2 Private law was different, they thought, because cross-border commercial transactions and the mishaps cross-border trade occasioned required some degree of harmonisation of the laws of multiple states, a task that could be accomplished, in their view, only by a systematic analysis of fundamental principles of private law that were, they hoped, common to all (in their terminology) ‘civilised’ societies. 3 The clearest contemporary version of these accounts are what are generically called rational choice models of politics, reflected in this handbook in the contributions of Adamski, Versteeg and Chilton and Vanberg, Broman, and Ritter.

1

2  Research handbook on the politics of constitutional law defined in varying ways) better off. And those solutions took the form of institutions – defined for present purposes as regular patterns of behaviour whose actions were generally accepted by the public, whether out of fear or otherwise – that generated coercive solutions: punished people for interpersonal violence, raised taxes, deployed armies, and the like. At some point scholars came to understand that the institutional focus of comparative politics inevitably pointed to the need for systematic comparative analyses of constitutional law.4 But, exactly how to satisfy that need was itself contested for reasons developed in scholarship on general comparative law – reasons that ironically reproduced the Montesquieuan and idealist concerns. Those concerns led to the thought that to understand any specific feature of a nation’s legal system – and even more so with respect to specific features of its constitutional law – one had to see that feature in its full context, legal, political, cultural, historical, and more. Full contextualisation, associated in general comparative law with Pierre Legrand, leads to deep scepticism about the very possibility of comparisons across national systems. Those who adopt this approach can provide what Günter Frankenberg calls ‘juxtapositions’ rather than comparisons. And, despite appearances juxtapositions can be informative. At their most simple they can be edifying, helping students understand the variety of ways in which human beings can organise their societies – and thereby helping them understand how widely people within their own society might vary. Further, juxtapositions might sometimes show that ensembles of institutions are what social scientists have called ‘loosely coupled.’ Institutional modules might be swapped out for substitutes and produce better results (as determined by people in the nation itself). Juxtapositions can suggest possible substitute modules of this sort.5 A functionalist approach offers an alternative to full contextualisation. As noted above, it supposes that all societies face a set of problems of governance. We can compare how different constitutions set up different ways of dealing with specific problems within that set, and then seek to identify the circumstances in which the different ways produce better or worse results (as determined either by the analyst or by the nation’s citizens). This in turn sometimes leads scholars to look for ‘best practices’ of institutional design (for example, whether under specified conditions constitutional review should be concentrated in a single constitutional court, in a specialised constitutional court, in a generalist apex court, distributed among first instance courts with the possibility of appellate review, and the like).6 Here too the issue of contextualisation arises. Every sensible scholar understands that specific institutions do not stand on their own. They are linked – loosely or tightly – to other institutions. Sometimes contextualisation will lead to the thought that it would be a mistake simply to adopt best practices with respect to one institution (say, an electoral commission) without making adjustments in others (for example, in the constitutional law governing the 4 The intellectual history is fuzzy. In our experience the early contributions of Boris Mirkine-Guétzevitch were largely lost to the field as it developed in the late twentieth century. For an overview focusing on the intellectual history of the field in the US, see Fontana (2011), and for a broader focus, see Ginsburg & Dixon (2011), 1–4. 5 Roberto Unger’s terminology ‘false necessity’ is helpful here. One sceptical reaction to that term is that full contextualisation shows that the necessities aren’t false at all. The idea of loose coupling is in turn a response to that challenge. And, of course, whether particular institutional modules are indeed loosely coupled is an empirical question, the answer to which might differ in different nations. 6 These best practices sometimes become part of the toolkit of scholars and advisers offering advice on constitutional design, advice that is sometimes met with objections derived from the contextualisers.

Introduction  3 structure of political parties). Once we see each specific institution as part of a network of other institutions, and the tighter are the connections between them, the closer a ‘problems of governance’ approach will come to full contextualisation. Before moving to a conclusion on comparativist methodology, we note two important and relatively recent developments. The first is the growth of interest in regional constitutionalism, the thought being that constitutions within regions such as South Asia or sub-Saharan Africa might have common characteristics (perhaps because they confront a common physical and economic ecology). The second is the growth of interest in colonial legacies and, importantly, in the ways in which post-colonial political leaders have adopted or rejected the institutions colonial rulers had imposed upon their nations. These methodological stances within comparative constitutional law replicate similar stances in other social sciences: nomothetic versus idiographic explanations, verstehen versus reductionist explanations, covering law versus interpretive explanations. That fact alone suggests that it would impoverish the field of comparative constitutional law to insist upon a single explanatory approach. And, indeed, the best work in the field tacks smoothly between ‘problems of governance’ generalisations and some degree of contextualisation. Methodological pluralism, whether within a single study or among studies, seems likely to be more productive. The contributions to this Handbook are pluralist in this sense. So, for example, Tokujin Matsudaira provides a detailed analysis of the way Japan-specific factors have shaped the politics of constitutional amendment there, and Jacquelyn Veraldi and Matthew Hassall examine the way in which the economic power of major corporations was entrenched within the ‘constitution’ – the stable institutional framework – of the European Union. Both chapters are of course informed by their authors’ knowledge of the politics of constitutional law elsewhere but their focus is on the specifics of their case studies. Other approaches are provided by Adam Chilton and Mila Versteeg and Georg Vanberg and his co-authors. Drawing upon and extending their prize-winning study (Chilton & Versteeg 2020) the former examine the political considerations that have shaped the adoption and enforcement of constitutional rights in a large number of jurisdictions, and the latter provide a systematic theory of why rulers who might in some sense prefer to be unconstrained nonetheless accede to limitations imposed by a judiciary whose independence they ensure. Again the methodological distinction we draw here is appropriately blurred by these authors’ inclusion of snapshot case studies that support their arguments. Related to pluralism in methodology is stylistic pluralism. Some ways of doing comparative constitutional analysis conduce to allusive expositions, others to more direct ones. Some authors will state explicit hypotheses and say that they test those hypotheses with evidence. Others will describe a problem and offer a narrative designed to lead readers to agree with the author’s understanding. Readers can usually tell from an author’s mode of presentation whether they come from a tradition of continental political theory or from the rational-choice tradition, for example. Yet another aspect of the comparative constitutional scholarship is the intended outcome of the scholarly engagement. Here the contributions range along the spectrum from, on the one hand, theoretical engagements with legal-political developments – a scholarly outcome valuable in itself – to, on the other, practical engagements seeking to modernise the law and/ or promote particular outcomes in law-making, judicial and executive interpretation, as well as enforcement. Objectives of each scholarly engagement thus have direct implications on the style and methodologies deployed. On this count Anna Lukina’s demonstration of how much

4  Research handbook on the politics of constitutional law ‘evil law’ is still in need of the trusted rule of law categories to be effective, or András Sajó’s plea not to ignore emotions in the context of constitutional analysis differs radically from Petra Bárd’s et al. warning against the abuse of constitutional identity arguments in the context of the creation and solidification of illiberal regimes. In the context where all legal scholarship, including constitutional, could be instrumentalised to reach positive and negative ends, when measured against the preservation of a vibrant liberal democracy, the deployment of comparative law sometimes becomes intensely political, with abusive borrowing (Scheppele 2013) and the promotion of ‘agreements with Hell’ (Balkin 1997) – a phenomenon that has been broadly described as the rise of ‘autocratic legalism’ (Scheppele 2018). So far we have discussed constitutional law. What about politics? On some conventional accounts politics is the forum in which preferences rather than principles guide action, and/or the forum in which (sheer) power determines policy results. So, the politics of constitutional law would deal with the way in which power manifests itself in constitutional domains as distinguished from the domains of ordinary nonconstitutional policy-making. Yet that formulation is far too simple. The distinction between constitutional and ordinary policy-making domains thins out once a constitution is in place because in many constitutional systems it is possible to formulate legally plausible claims that the constitution limits the choices available in connection with specific policy areas. If the way in which politics manifests itself in constitutional domains differs from the way it does with respect to ordinary policies, we will have to take both forms of politics into account in analysing and evaluating policy outcomes in these ‘ordinary’ areas. Further, the idea of sheer power needs to be disaggregated.7 Without pretending that the list is exhaustive, we observe that power can be financial, physical, or intellectual, and – importantly – power can structure the range of options thought to be reasonably available in any situation. In its intellectual, ideological, and structuring forms power is not sharply distinguishable from principle. Or, put another way, sometimes principles are – act as – forms of political power. When they do the line between the politics of constitutional law and ordinary politics again becomes thin. As with comparative analysis, so with political analysis: Methodological diversity prevails. Political scientists conventionally distinguish between: (1) methods that specify a relatively narrow set of assumptions about political actors’ motivations and behaviour, deduce conclusions from those assumptions, and – sometimes – test those conclusions by examining a reasonably large range of relevant political phenomena (‘models’ coupled with ‘large-N’ analysis, in short), and (2) methods that examine specific political events, typically in no more than a handful of times and places, and provide an analytically informed narrative from which authors and readers can extract more general propositions (‘case studies’ and ‘process tracing,’ in short). Both methods appear in the study of comparative constitutional law, though the former are a substantially more recent addition to the literature, which remains concentrated on narrative case studies. Perhaps the most interesting examples methodologically are regionally focused chapters such as those by Kamala Sankaran on the treatment of minorities in South Asia and Roberto Gargarella on the way in which executive power has been configured in Latin America, which locate their narrative analyses within a ‘modest-N’ set of nations.

7



For a classic statement, see Lukes (1974).

Introduction  5 Notably, those nations are located in the global South in contrast to what have become known in the field as ‘the usual suspects’ – the United States (US), Britain, and nations within the European Union (and the European Union itself, understood in constitutional terms). One emerging topic for research in the field of comparative constitutional law and the politics associated with constitutional law is whether there is a distinctive ‘global South’ approach to the field and if so what are its special characteristics (for a recent collection raising these questions see Dann, Riegner & Bönnemann 2020). A crucial aspect of the constant interactions in the Janus’ head between politics and constitutional law are the attempts to use what Bourdieu (1987) characterised as the law’s ‘worldmaking’ capacity to foreclose politics and, on the contrary, to soften the legal structures enough to attempt a toning down of the fundamental aspect of constitutionalism, which is tempering power (Krygier 2016). Examples of both are showcased and scrutinised in this handbook, from the framing of the European Union in essentially administrative terms with the effect of removing crucial questions from the purview of politics, as Peter Lindseth describes in his chapter to the first steps of the Indian state, as analysed by Suryapratim Roy and Rahul Sambaraju, when the law steps aside for a while, acting as an observer of the political game. When the law is in a state of flux in an established democracy, allowing politics to generate worse outcomes for all and the recess of rights to intensify, one can speak of the ‘politics of constitutional meltdowns’, as Paul Craig does in his chapter focusing on the contemporary UK. At least two side-stories of the law vs politics struggle emerge: the judicial scrutiny of the pretexts deployed by political power in the reshaping of the law, tackled by Mariam Begadze in her chapter using US law and the European Human Rights Protection System with its continental court in Strasbourg as key examples, and the social sustainability, in the long run, of tempering power too much, even if this results in the pro-verbal ‘ruling by cheating’ (Sajó 2021) – as Paul Blokker focuses on, looking at the EU. And, finally, with respect to the choice of topics to include in a handbook on the politics of constitutional law: The preceding observations suggest (at least to us as editors) that almost any matter of public policy could be treated in such a handbook or, again to put it in another way, that any handbook will include some discussions that other editors might think off topic and will exclude discussions that other editors would regard as essential. For that reason we invited authors to contribute chapters on topics we suggested but told them that they should construe the topic in whatever way they thought appropriate; we offered them no ‘template’ for their contributions. With the contributions in hand we as editors imposed a rather conventional set of categories on them to provide some structure for our presentation. As all such structures are, ours is to some degree arbitrary. The book has four sections, dealing with (I) Foundations, (II) Structures, (III) Rights, and (IV) Futures. We would not quarrel strongly with readers who thought that some matters we describe as ‘foundations’ could equally well be characterised as ‘structures,’ nor with those who thought there were more ‘futures’ to think about than we have included. This is to say only that handbooks like this one are inevitably incomplete and that one way to think about their contribution to the field is that they are not primarily summaries of the existing state of knowledge with some speculations about the field’s future development but are better understood to be provocations aimed at stimulating further thought through agreement and, importantly, disagreement with the editors’ choice. In what follows we offer

6  Research handbook on the politics of constitutional law quite short summaries of each chapter’s argument; the brevity means that the chapters are typically much richer than the few sentences we devote to each can convey. What are the foundations of a constitution? Scholars have identified social and economic correlations of the rule of law and of constitutionalism, the conditions under which those institutions emerge and persist with some stability. Section I begins with Martin Krygier’s provocative analysis of what the rule of law is and how it comes under pressure from the private power whose existence it underwrites. Julie Novkov then uses the US legal literature as a case study of the politics of legal ideology, approaching the law itself, as well as the ideas of rights and legality as essentially ideological tools informing crucial political choices – what prevented the advocates of socialist legality (sotzialisticheskaja zakonnosť) inspired by Lenin’s approaches to state and law, to subscribe to the rule of law as a global legal principle: law is ideological and unquestionably biased (Marsh 1961). Reason and emotion are classically offered as the competing impulses or motivations that generate politics – and through politics, constitutions. Dariusz Adamski summarises and questions accounts of the foundations of constitutional law in the application of human reason to individuals’ self-interest, showcasing the importance and promise of constitutional behavioural research, while András Sajó, noting that the analysis of emotions has played too small a role in our thinking about constitutions, brings them into the story, developing the insights offered in his now classic account (Sajó 2011). The second subpart of the Section deals with what we call the boundaries of constitutional politics. Zoran Oklopčić offers a conceptual framing of the political by focusing on popular sovereignty, the people (cf. Oklopčić 2018) and the construal of political representations, thus addressing the mental boundaries touching the heart of liberal-democratic legitimation of the law. Audrey Macklin deals with the literal boundaries of constitutional polities – their borders and the political implications of such borders, introducing the concept of ‘liminality’ into the analysis and tracing the roots of ‘immigration exceptionalism’ in the world of human rights. The highest point of liminality is the contestation not only of borders and peoplehood, but also of sovereignty itself. The constitutional politics of unrecognised entities, which lies at the true fringes of constitutionalism, not paid much attention to by scholars – mistakenly, in our opinion (but see Harzl et al. 2022) – is the focus of the contribution by Aistė Mickonytė and Benedikt Harzl, showcasing how the liberal democratic ideals as well as the practical governance approaches are adapted to the reality on the ground in the states, which, officially, do not quite exist. Mark Tushnet then takes up the politics associated with drawing the boundaries of constitutions as against their predecessors or in a crisis in which constitutional governance has evaporated. And if, as Carl Schmitt notoriously declared, the sovereign is the person or institution that has the power to declare an emergency – the ‘exception’ to constitutional governance – the politics that determines both the location of emergency powers and the conditions under which they can be exercised (and, perhaps – though Schmitt would dispute this – limited) define the boundary between constitutionalism and its absence; thus Victor V. Ramraj’s chapter. Another boundary is temporal: the line that separates the constitution in place from its predecessor and, as described by Tokujin Matsudaira, from its later modification (or its insulation from such modification). And finally there is what we might describe as an intratemporal issue: how is a constitution in place to be interpreted? Concluding this Section, Tamas Gyorfy provides a guide to the politics of constitutional interpretation.

Introduction  7 Roberto Gargarella, the author of the first chapter in Section II on Structures, argued – in connection with Latin America – that scholars of constitutional law had overemphasised constitutional protections of rights while neglecting (relatively speaking) what Gargarella called the ‘engine room’ of constitutions, their structures for generating and implementing policy, especially, for him, the executive branch. Perhaps the imbalance Gargarella identified is rectified in part by the fact that Section II on Structures has about twice as many chapters as Section III on rights. We suggest that, like Section I, Section II be understood as having two subparts. The first deals with ‘traditional’ structures of the Montesquiean sort: the executive branch, federalism, and the courts. So the chapter by Gargarella is followed by Juan F. González-Bertomeu’s rich legal-historical engagement with the politics of federalism in Latin America and a detailed engagement with the judiciary. The analysis of the rationale for and the politics of judicial independence, showcased by Georg Vanberg with Benjamin Broman and Christopher Ritter, shows that the desirability of an independent judiciary is itself a political choice, even if backed by strong consensus today. This insight is fundamental for designing workable judicial independence guarantees: Answering the question, ‘What conditions favor the establishment and maintenance of independent courts?,’ Vanberg et al. reply, ‘The key to answering this question is the recognition that effective judicial independence represents a political choice’. How far this political choice is effectively guaranteed via judicial self-governance design is then the core subject-matter of David Kosař and Katarína Šipulová’s chapter, which offers well-informed empirically-based criticism of over-reliance on judicial self-governance structures. Although en vogue in the contemporary constitutionalist theorizing, such structures could be as dangerous for the achievement of effective and accountable judicial self-governance as alternative models – what Kosař has demonstrated in his monograph on the subject (Kosař 2017). David Law and Mark Tushnet describe the ways in which constitutional courts interact with each other, emphasising the manifold ways in which power relations manifest themselves in what many describe as ‘dialogues’ among equal participants. We note the omission of detailed consideration of the constitutional politics of legislative design and, perhaps more important today, a similar omission of consideration of ‘fourth branch’ or ‘guardian’ institutions other than the courts (as to the latter, see Tushnet, 2021, and Khaitan, 2021; Tushnet’s chapter in this book on the politics of constitutional design has some passing comments on the design of both legislatures and fourth-branch institutions). The second subpart deals with ‘extraconstitutional’ institutions such as political parties, the supplementation of the Montesqueian institutions with administrative processes, corporate power, and international law. Political parties are scrutinised in this handbook by Franita Tolson, who furthers a strong and well-argued plea based on the analysis of the US constitutional system, that treating them as private actors is wrong. This is exactly how the European Union deals with them, to provide one example (Morijn 2019). Of course political parties are sometimes dealt with in written constitutions and in judicial interpretations of, in particular, constitutional principles of free expression. In contrast with constitutional systems paying significant attention to political parties and political life, several notable constitutional projects of the twentieth century have been centred on the de-politicisation of the key choices made by the founders in order to solidify the legal system by presenting it to the population as purely technocratic. The European Union, approached from this angle by Peter Lindseth in his chapter, is the greatest example of this approach, which treats constitutionalism as administrative law on steroids through an attempt

8  Research handbook on the politics of constitutional law to exclude politics. The implications of this for justice and legitimacy of the whole constitutional system are far-reaching, to say the least (cf. Kochenov et al. 2015). Could the emperor be truly naked? (Weiler 1999). Jacquelyn Veraldi and Matthew Hassall seemingly point in that direction in their legal-historical engagement with the politics of European constitutionalism, where they trace the impact of corporate power on the creation of the EU and paint an intriguing account of the Union in Europe as an example of the constitutionalisation of corporate power: a much needed criticism of EU’s legal articulation, which could explain that legal system’s difficulties regarding delivering rights and recognition to the poor and the needy, which are well established in the literature by now, especially through Charlotte O’Brien’s groundbreaking work (O’Brien 2017). Veraldi and Hassall’s story of EU’s origins is enriched further by a brief account of the careers and impact of the two first Advocates General of the European Court of Justice contributed by Margot Horspool. Astonishing as it might seem from our current vantage point, appointments to the Court were so opaque and so much confined to the realm of international politics, that prominent administrators leading the Vichy France’s efforts to purge the public administration of the Jews would qualify for a high post, in just one example, providing direct continuity between the story of the EU’s founding and the darker legacies of Europe (Joerges & Ghaleigh 2003). What is more, the abhorrent past of concrete individuals does not obstruct their functioning in high positions and apparent dedication to the cause of building a united Europe. Perry Anderson could well be right that ‘[i]t was a time when the last commander of the Charlemagne Division of the SS, fighting to the last bullet to defend Hitler in his bunker, could emerge as best choice for the Robert Schuman Prize for services to European unity’ (Anderson 2021): the biographies of many of the key figures in the founding of the Union are so decidedly non-kosher by even the lowest standards (id.), that that of itself could be a case-study in the changing politics of constitutional memory, which is the topic of the chapter by Gliszczyńska-Grabias later in the handbook (focusing on Russia and Poland, however, not the EU). Bojan Bugarič continues the engagement with the politics of constitutionalism of European unity by showcasing and dissecting the in-built political biases of the European ‘Economic Constitution’. Unlike other constitutions, the European constitutional system emerges as a policy-making template, rather than an orderly space for the legislative politics to play out. The de-politicizing constitution is not always a good idea, should one adhere to liberal democratic ideals as a backbone of legitimacy (cf. Přibáň 2015), let alone when the constitutional settlement leans, as per the argument put forward by Bugarič, in the ‘neo-liberal’ direction, resulting in what Michael Wilkinson has famously termed ‘authoritarian liberalism’ (Wilkinson 2021). And international law has several faces. Elena Basheska deals with how constitutional principles have begun to displace pure politics in the enduring structures of the United Nations, building on a solid line of her earlier work on the principle of good neighbourliness (Basheska 2015). In addition, in many nations international and transnational law is incorporated into domestic constitutional law, either as part of a ‘constitutional bloc’ as in France and some Latin American nations or as directly effective domestic law, as are some aspects of European Union law in EU nations (for some observations about this aspect of the topic see also the chapters by Lindseth and Veraldi and Hassall). Contemporary constitutions pervasively protect a wide range of rights: classical first-generation rights associated with liberal freedoms and equality; more recent second-generation rights to social and economic; and third-generation rights located in communities and in the natural environment. This standard categorisation may be breaking

Introduction  9 down: Equality rights never fit entirely comfortably into the ‘classical’ category, for example, with liberal states denying even formal equality to some of their citizens for generations; and how are we to characterise the recent emergence of constitutional protection for non-human animals within the standard categories? Given the wide range of rights guaranteed in contemporary constitutions, an entire research handbook could be devoted to the politics of constitutional rights. Our aims as editors led us to select only a few constitutional rights for detailed analysis here. Chilton and Versteeg do provide an overview, which suggests that of the comprehensive lists of rights guaranteed in today’s constitutions only a few are likely to be enforced effectively, for reasons associated with their interaction with political incentives. Sarah Ganty focuses on the use of ‘merit’ as an explicit or implicit tool of the apportionment of rights and entitlements in contemporary constitutional systems coming to the conclusion that the contemporary politics of merit is in conflict with both the ideal of democracy and the ideal of equality, espoused by all the liberal democratic constitutions today. Mariam Begadze scrutinises the ways in which different constitutional systems can counter legislative bad faith through a critical engagement with pretext as a tool of assault of rights and freedoms. Two legal systems in particular are considered: the US and the European Human Rights Protection system, both offering hopes that the politics of pretext could emerge as a critically scrutinisable legal matter. Ioanna Tourkochoriti looks at the constitutional politics of religion mostly in the global North with some glimpses at the global South, Kamala Sankaran at the politics of ethnic minority rights in South Asia. The evolution of the legal position of the sexual minorities is the central theme of Alina Tryfonidou’s chapter, offering a discussion of how constitutional policy about sexual identity is dealt with through the political and judicial mechanisms of Europe’s constitutional systems. Tryfonidou’s chapter blends a classical concern, equality, with the much more recent emergence of sexual identity as a relevant subject for constitutional protection – and with the idea that recognition may be as important a component of constitutional equality as are more traditional concerns for social and political participation. Dimitry Kochenov provides the concluding chapter for the Rights Section by focusing on the global legal-theoretical opposition between the idea of citizenship and the notion of human rights, interrogating the possible justifications for citizenship’s preservation in the world, once the nature of citizenship as the essential tool of the strict global establishment and reinforcement of blood-based inequalities is fully taken into account, thus further problematizing the passport apartheid the majority of the population of the world is a victim of (Kochenov 2019). As we have noted many other topics could have been included in this Section, but Kochenov’s account emerges as an appropriate capstone as it showcases citizenship as a conceptual limit to rights in a modern socialised world where the boundaries between, on the one hand, the formerly colonised and ‘not civilised’ spaces where rights and opportunities often do not exist at all and, on the other hand, the affluent global aristocracy spaces where rights are guaranteed – are militarised and impenetrable for the racialised other (Achiume 2022). The global politics of constitutional law is thus necessarily the politics of blood aristocracy and racialised ordering of rights and opportunities in the world today (Kochenov 2020). We conclude this handbook with chapters dealing with constitutional futures. Readers may find it odd, though, that the Section begins with two backward glances. But, to repeat what has become a cliché from William Faulkner, ‘The past is never dead. It’s not even past.’ Aziz Rana presents a narrative focusing on the US in the 1950s and 1960s, arguing that constitutional politics there and then were shaped by contrasts drawn between the US and its

10  Research handbook on the politics of constitutional law adversaries in the Cold War – and that the shape given to those politics continues to influence US’ discussions of the politics of the nation’s constitution, and, he suggests, is likely to do so in the future. And perhaps more dramatically, contests over historical memory analysed by Aleksandra Gliszczyńska-Grabias are the subject of sharp contemporary political and constitutional conflict around the world. Gliszczyńska-Grabias’ careful study of the politics of memory and collective identity in Poland, Germany, and Russia demonstrates beyond any doubt that the politics of history and identity is among the most vibrant and dynamic parts of constitutional law, as broader studies have equally showcased (Koposov 2017, Belavusau and Gliszczyńska-Grabias 2017). Indeed, the recent decades have produced what Suryapratim Roy characterised as a ‘memory rule of law’ (Roy 2018). Even beyond the specific use of history the importance of the politics of identity in the context of global constitutionalism is on the rise. Identity is the subject of the chapter by Petra Bárd, Zoltán Fleck and Nóra Chronowski. They showcase both the pro-active uses and abuses of identity reasoning by the courts in several European jurisdictions. Paul Blokker focuses on related issues in his chapter, but adopts a broader legal-sociological take, placing the identitarian tool deployed by populists in between constitutional law and politics, making a case, in his own words, ‘for a broad, political-sociological approach to analyse the relation between populism and constitutionalism, drawing attention to the importance of societal actors, forms of constitutional mobilisation, and “legal warfare from below”’ with a particular emphasis on the importance of taking the ‘backlash movements’ fully on board in the context of one’s analysis. The outcome is an improved fleshing out of the complexity of the legal political reality underpinning the autocratic legalism acting in tandem with populism. While the complexity is wonderfully outlined, the Chernyshevskyan question ‘what is to be done?’ remains. Approaching militant democracy as a possible tool to counter growing populism and rule of law backsliding world-wide is the subject of Violeta Beširević’s chapter, which follows. Based on the fruitful criticism of Ginsburg and Huq (2018), she shows that it is too early to discard the ‘classical’ militant democracy from the palette of possible tools to counter the populist democratic and rule of law backsliding (Müller 2016). In the late twentieth and early twenty-first century the future of constitutionalism seemed bright: Successive waves of constitutionalisation had produced unprecedented levels of constitutional democracy around the world. Within two decades, though, clouds have returned. Shelves of books are available dealing with democratic decay, abusive constitutionalism, the crisis of constitutional democracy, and the like. Whether contemporary pessimism about constitutionalism’s future is warranted will be determined only as time passes. For now, though, we proceed with our treatment of the politics of constitutional law with two chapters focusing on constitutional breakdown. The first is a careful case study by Suryapratim Roy and Rahul Sambaraju of developments in India, which used to be described as the world’s largest well-functioning democracy but where democracy is now under serious threat. The second is a more general examination of the processes of constitutional ‘meltdown’, Paul Craig’s term for the general phenomenon. The handbook concludes with the chapter on ‘Evil Law’ by Anna Lukina, who offers a similar reminder in the realm of the rule of law to the one offered in the realm of democracy by J.H.H. Weiler (2009, para. 37): just as a ‘democracy of vile persons will be vile’, law is indispensable to do good, just as it is indispensable to do evil. Drawing from case-studies of the Stalinist Soviet Union and the Third Reich the reminder that the beauty of the law is in allowing effective governance in accordance with the dominant principles and inclinations of

Introduction  11 the day, makes the law entirely immune, beyond the matter of effectiveness, to the categories of ‘good’ and ‘bad’, showcasing with beautiful precision what we started with: law cannot run away from politics. These three chapters are a most fitting conclusion to the Handbook. Craig’s contribution, similar to Lukina’s, might be seen as circling back to the chapter by Krygier that opened the collection, with constitutional meltdown as the complement to – and perhaps the result of – the problems associated with the idea of the rule of law that Krygier describes, where the rule of law can also be the rule of ‘evil’ law. And, on the level of method, we think it helpful to end the book with examples of the two primary approaches to research in the field, the detailed case study and the presentation of generalisations based upon a larger database as well as a legal theoretical account backed by solid historical references. For, in the end, a Research Handbook should be a guide both to how scholars in the field should approach their topics and to what they might focus their attention on.

REFERENCES Anderson, Perry. (2021). ‘Ever Closer Union?’ 43 London Review of Books. Balkin, Jack. (1997). ‘Agreements with Hell and Other Objects of Our Faith,’ Fordham Law Review 65: 1703–38. Basheska, Elena. ‘The Position of the Good Neighbourliness Principle in International and EU Law’, in Kochenov, Dimitry & Elena Basheska (eds) Good Neighbourliness in the European Legal Context (Brill Nijhoff, 2015) 24–54. Belavusau, Uladzislau & Aleksandra Gliszczyńska-Grabias (eds) Law and Memory: Towards Legal Governance of History (Cambridge University Press, 2017). Bourdieu, Pierre. (1987). ‘The Force of Law: Toward a Sociology of the Juridical Field,’ Hastings Law Journal 38: 814–53. Chilton, Adam & Mila Versteeg. How Constitutional Rights Matter (Oxford University Press, 2020). Dann, Philipp. Michael Riegner & Maxim Bönnemann (eds) The Global South and Comparative Constitutional Law (Oxford University Press, 2020). Fontana, David. (2011). ‘The Rise and Fall of Comparative Constitutional Law in the Postwar Era,’ Yale Journal of International Law 1–53. Ginsburg, Tom & Rosalind Dixon. ‘Introduction,’ in Comparative Constitutional Law: Research Handbook (Tom Ginsburg & Rosalind Dixon (eds) Edward Elgar, 2011). Ginsburg, Tom & Aziz Huq. How to Save a Constitutional Democracy (University of Chicago Press, 2018). Harzl, Benedikt, Roman Petrov & Aistė Mickondytė (eds). Unrecognised Entities. Perspectives in International, European, and Constitutional Law (Brill Nijhoff, 2022). Joerges, Christian & Navraj Singh Ghaleigh (eds) Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and Its Legal Traditions (Hart Publishing, 2003). Khaitan, Tarunabh. (2021). ‘Guarantor Institutions,’ Asian Journal of Comparative Law 16: S40–49. Kochenov, Dmitry. Citizenship (MIT Press, 2019). Kochenov, Dimitry. (2020). ‘Ending the Passport Apartheid. The Alternative to Citizenship Is No Citizenship’ International Journal of Constitutional Law 18: 1525–30. Kochenov, Dimitry, Gráinne de Búrca & Andrew Williams (eds) Europe’s Justice Deficit? (Hart Publishing, 2015). Koposov, Nikolay. Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia (Cambridge University Press, 2017). Kosař, David. Perils of Judicial Self-Government in Transitional Societies (Cambridge University Press, 2017). Krygier, Martin, ‘Tempering Power’, in Maurice Adams et al. (eds) Bridging Idealism and Realism in Constitutionalism and Rule of Law (Cambridge University Press, 2016).

12  Research handbook on the politics of constitutional law Lukes, Steven. Power: A Radical View (Macmillan 1974). Marsh, Norman S. ‘The Rule of Law as a Supranational Concept’, in Anthony G. Guest (ed.), Oxford Essays in Jurisprudence (Oxford University Press, 1961). Morijn, John. (2019). ‘Responding to ‘Populist’ Politics at EU Level: Regulation 1141/2014 and beyond,’ International Journal of Constitutional Law 17: 617–40. Müller, Jan-Werner. What Is Populism? (University of Pennsylvania Press, 2016). Oklopčić, Zoran. Beyond the People. Social Imaginary and Constituent Imagination (Oxford University Press, 2018). O’Brien, Charlotte. Unity in Adversity: EU Citizenship, Social Justice, and the Cautionary Tale of the UK (Hart Publishing, 2017). Přibáň, Jiří. ‘The Evolving Idea of Political Justice in the EU: From Substantive Deficits to the Systemic Contingency of European Society’, in Europe’s Justice Deficit? (Kochenov, Dimitry, Gráinne de Búrca & Andrew Williams (eds) Hart Publishing, 2015): 193. Roy, Suryapratim. (2018). ‘Never Any End to an Event.’ Journal of Comparative Law 13: 132. Sajó, András. Constitutional Sentiments (Yale University Press, 2011). Sajó, András. Ruling by Cheating: Governance in an Illiberal Democracy (Cambridge University Press, 2021). Scheppele, Kim Lane. (2013). ‘The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work,’ Governance 26: 559–62. Scheppele, Kim Lane, ‘Autocratic Legalism’ (2018). 85 University of Chicago Law Review 545–84. Tushnet, Mark. The New Fourth Branch: Institutions for Protecting Constitutional Democracy (Cambridge University Press, 2021). Weiler, Joseph H.H. The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (Cambridge University Press, 1999). Weiler, Joseph H.H. ‘European Integration.’ Max Planck Encyclopedia of Public International Law. Entry Last Updated in 2009. Wilkinson, Michael A. Authoritarian Liberalism and the Transformation of Modern Europe (Oxford University Press, 2021).

PART I FOUNDATIONS

2. The ideal of the rule of law and private power Martin Krygier

The argument of this chapter proceeds in five stages: It begins with three – usually unexamined but widely held – assumptions of mainstream rule of law thinking, in the light of which private power is typically not part of the story at all, or at most very much overshadowed by the state, to be approached at best by analogy with or extension of the main game. It then in section 2 sketches an alternative way in which to approach the rule of law, which I recommend as superior in general, and which takes private power out of the closet, both as a potential source of rule of law problems and a contributor to rule of law solutions. Section 3 responds to arguments that the state really is special, either qualitatively or quantitatively, as the source of rule of law problems. I deny that is always and necessarily the case. Section 4 and 5 suggest that private power is typically also going to be crucial in relation to effective rule of law solutions, first because legal solutions themselves depend upon it, and second because it will often be necessary to draw upon non-state resources to attain the ideal, the promise of the rule of law. I conclude with a parable about the rule of law and the theory of waste disposal.

1.

ORTHODOXIES: STATE, LAW, RULE OF LAW

Contemporary rule of law writings typically share three – usually unexamined – assumptions. The first is that governments, or state agencies more generally, are the proper subjects, the primary threats to and targets of the rule of law. The domain, the territory in which the rule of law operates, where the problems occur to which the rule of law is a response, is to be found in the institutions and activities of the public political order, government and state. That’s deep in the tradition. Aristotle thought so too. The second assumption is that the rule of law itself is to be found in particular forms, procedures and arrangements of official legal rules and institutions. These are the means for delivery of the promises of the rule of law. After all, it’s the rule of law, stupid. This conviction stems from more than the word. It conforms to what has come to be known as Miles’ law: where you stand depends on where you sit. With the rule of law, what we understand it to be seems to follow a similar rule. Lawyers sit in law offices, legal academics in law schools, judges in courts, and legal philosophers spend their sitting time reading lawyers, legal academics, judges, and other legal philosophers. That is as it should be, but its effects on how the rule of law has come to be understood by its new and wider audience are not altogether salutary. For lawyers, sitting where they do, the rule of law is a virtue of the law, an ideal for legal orders. The virtue – to the extent it is manifest – inheres in a state’s legal order, with its official agencies, rules, procedures, practices and outputs, framing and channelling acts of state. Typically that’s where lawyers start and almost as often it’s where they stay. So, in the case of the rule of law, even though lawyers, legal philosophers, rule of law promoters, and 14

The ideal of the rule of law and private power  15 others differ greatly over specifics, underlying their differences is an assumption so shared, so assumed that it is never explicitly discussed, namely that the phrase speaks of both vices and responsive virtues internal to the state’s legal apparatus and ways of doing things. There are many accounts of the specific legal arrangements that add up to the rule of law, but they all have in common this centring of the state, of legislatures and courts, the character of the rules they make and apply, the behaviour of the legally authorised agencies that enforce them. Lawyers’ accounts differ about what sub-categorisations of that official legal complex are key. So, in the talk of practical lawyers, international rule of law reform projects, arguments with the Venice Commission etc. the focus is typically on specific legal institutions and how they are arranged: separation of powers, independence of the judiciary, clarity, generality, publicity, prospectivity of rules, and so on. In legal philosophy there are extensive and sophisticated discussions about what the formal character of the law needs to be to satisfy the demands of the rule of law (Fuller, Hayek, Raz), or what procedural elements it needs to have to respect the dignity of the beneficiaries of the rule of law (Waldron), or what moral content should inform legal rules (Dworkin, Allan, Bingham). Not only lawyers think this way. For obvious reasons, their views and accounts have disproportionate influence. Most people take it to be obvious that in the rule of law, law must take the lead, that the rule of law has to do with the characteristics of official legal institutions etc., and that lawyers as the experts in that domain, are the ones from whom lay people should take their cues. Moreover, once the rule of law became something to be ‘built’ by the deliberate concentrated efforts of an industry of rule of Law promoters, in countries that never had it or have been denied it or where it is judged to be in poor shape, the obvious source of enlightenment has seemed to be the experts. And they beget the new industry of promoter-experts. This is what I’ve called the legal anatomical approach to the rule of law, and given the starting and directive assumption it’s a state-centred anatomy that is explored. That’s where disquisitions on the rule of law start, and unless disturbed, where they stop: the state is not only the subject of rule of law problems, but also the source of rule of law solutions. Rule of law anatomists spend most of their time identifying the relevant legal anatomy, assuming or inferring what law so made up is good for. Many who make the second assumption about the anatomy of rule of law solutions imagine it is a corollary of the first, about the location of rule of law problems: since states are the prime sources of arbitrary power, moulding their legal implements and vehicles in non-arbitrary shapes is the best way in which to temper their power. However, that is not necessarily so. State power might be the most dangerous animal on the planet, but state laws might not be the best way, and certainly not sufficient, to tame it. A free press or active civil society might be more significant. Indeed the recent book by Acemoglu and Robinson, The Narrow Corridor, argues just that. They argue that that putative corridor, within which citizens enjoy liberties protected both by and against the state and other citizens, is rarely entered and even more rarely does it endure. One arrives there only with the rare combination of a state strong enough to do what it should – ‘enforce laws, control violence, resolve conflicts, and provide public services’ with ‘an assertive, well-organized society’ strong enough to stop it doing what it mustn’t. A shackled Leviathan, not a despotic nor an absent Leviathan is necessary,

16  Research handbook on the politics of constitutional law and society must provide the shackles.1 Conversely, one might even concede that there can be non-state sources of rule of law concern, but still believe state laws are the best ways to cope with them. And that, indeed, is what we do with contract law, etc. Or one can countenance other ways, and what works depends. But that last option – don’t assume; have a look – has not been the conventional take on these matters. Instead, it is more common to combine these first two assumptions, to lead to a third: Within law, current jurisprudential accounts of the rule of law commonly rest on what, in their book Private Law and the Rule of Law, Lisa Austin and Dennis Klimchuk call ‘the public law presumption’, that ‘the rule of law is essentially a public law doctrine’. As Austin and Klimchuk observe of the laundry lists of contemporary jurisprudence, ‘a collective effect of these influential formulations of the rule of law, standing as they do in a long philosophical tradition that shares it, is the implicit acceptance that at its heart the rule of law is an ideal concerning the manner in which a government exercises authority, and the institutional structures through which it may do so consistently with that ideal.’2 Now, if you’re a mainstream rule of law girl or guy, and you’ve have been accustomed to believe that rule of law problems are ones of government and rule of law solutions are to be found in public law, private power is unlikely to seem to be your problem or relevant to your solutions. And that, in the main, is how thinking about the rule of law has developed over millennia, for the most part unworried that this might be a form of myopia. But occasionally the question is asked: what about private power? Might it be a source of rule of law problems and also of rule of law solutions? These thoughts, for they are two not one, are uncommon. Even where they occur and are not rejected out of hand, those who start with conventional rule of law assumptions still draw their understandings of the rule of law out of the standard paradigms. One way is by analogy, another by extension. First, speaking of the domain of rule of law subjects, targets, the sources of rule of law problems, some draw analogies between features of the central governmental case that generate rule of law concerns, and those of non-state entities. Typically, those analogies are made between governments and large organisations that are argued to operate and look sufficiently like governments that considering them appears to require minimal real deviation from existing paths. The move is a politically significant one, indeed a defiant one in a neo-liberal age, but adherents to mainstream paradigms can at least contemplate it without shifting their understanding of the constituents of the rule of law too much. So, one might argue, as the sociologist Philip Selznick3 and philosopher Elizabeth Anderson4 do, that with the rise of large corporate organisations, with their huge multitudes of employees and dependants, the distance between the nature of private and public organisations, and their powers over those who inhabit them, deal with them, and in other ways depend upon them, has diminished so much that talking about the rule of law in the latter doesn’t require much deviation from the original path. Selznick, who is a real pioneer in this way of thinking, argues that:

Acemoglu & Robinson (2020), 24. Austin & Klimchuk (2014), 5 (citing Tamanaha (2004), 114: ‘[t]he broadest understanding of the rule of law, a thread that has run for over 2000 years, often frayed thin, but never completely severed, is that the sovereign, and the state and its officials, are limited by the law’. 3 Selznick (1969). 4 Anderson (2017). 1 2

The ideal of the rule of law and private power  17 Wherever institutional authority is exercised – wherever there is bureaucracy – people need protection from arbitrary rule. Just governance is a moral necessity, in private as well as in public institutions … When we fail to see the place of law in ‘private’ institutions we withhold from that setting the experience of the political community in matters of governance.5

Selznick believes that’s a bad idea, as does Anderson, (who doesn’t mention him, but appropriates his phrase, ‘private government’ for her title, and gives some feisty Tanner lectures that might have benefited from reading him), for whom ‘Government is everywhere, not just in the form of the state, but even more pervasively in the workplace. Yet public discourse and much of political theory pretends that this is not so.’6 Secondly, at the level of the rule of law toolkit itself, apart from analogies there are extensions of existing rule of law principles to private entities. So Selznick and Anderson ask for various principles and protections of public law to be extended to private government. Thus, Selznick again: students of law and society are confronted with a special intellectual problem: how to bring legal ideals to the ‘private’ sector of community life. That sector includes autonomous groups and enterprises not formally part of government but exercising a sometimes powerful dominion, often deeply influencing the achievement of full citizenship in a moral commonwealth. The issue is: Can we justify, within the framework of legal theory, the application to private organisations of principles hitherto restricted to public government?7

Anderson, for example, argues that ‘[a] just workplace constitution should incorporate basic constitutional rights, akin to a bill of rights against employers’.8 For her, private government offers none of the protections or sources of participation and accountability that public governments do, and the disparity needs to be repaired: You are subject to private government wherever (1) you are subordinate to authorities who can order you around and sanction you for not complying over some domain of your life, and (2) the authorities treat it as none of your business, across a wide range of cases, what orders it issues or why it sanctions you. … Private government is government that has arbitrary, unaccountable power over those it governs.9

Anderson admits that not every rule of law measure applied to public governments can be extended to private, but ‘it is easy to exaggerate the obstacles to imposing rule-of-law protections at work’.10 Again, and better known, economists and development agencies find no conceptual difficulty in considering contract and property as central elements of the rule of law, though the potential sources of arbitrary power available to heavyweight contractors and property owners are often ignored. But the excellent essays in Private Law and the Rule of Law are full of examples of the appropriateness of such extensions, to property law, contracts, equity, boilerplate … that show us ways forward there. 7 8 9

Selznick (1992), 300, 301. Anderson (2017), 70–71. Selznick (1969), 35. Anderson (2017), 68. Ibid, 44–45. 10 Ibid, 67. 5 6

18  Research handbook on the politics of constitutional law

2.

TEMPERING POWER

But what if, at the level of problems, analogies aren’t obvious, because new sources of arbitrary power arise that don’t look or operate like those we have been familiar with? And at the level of solutions, what if the effectiveness and reach of existing legal solutions themselves depend upon congenial arrangements of private power that are beyond the ken of the conventional carpenters of the rule of law? And what if rule of law ideals are often not amenable to solution by extending traditional existing legal tools to them? What if they need the utilisation of non-traditional rule of law means, unmentioned in the canon? I believe all these possibilities exist and indeed are proliferating in modern times. They require us to look outside the conventional rule of law tool box; and to start with different questions that in turn are likely to generate different answers. I have long thought that there was a better way to start thinking about the rule of law in general, than with the assumptions outlined above. My reasons are not limited to issues of private power, but they have implications for them. I argue for a different way of thinking about the rule of law that starts not with anatomy but teleology and continues not only with law but also with sociology. That is to say, it starts not with some list of legal arrangements alleged to make up the rule of law, but first by asking what is the rule of law problem that has led generations to seek solutions, and then by exploring, rather than assuming, where one might find such solutions and what they might be. It makes no initial assumptions about where rule of law problems might arise, and has no fixed check list of where solutions might be found, or what they will consist of or look like. On this view, to start with fixed assumptions about where rule of law problems are found, and with some pre-formed, often intuitively derived, checklist of putative legal solutions to them, constrains thought and blocks imagination. Familiar locations blind us to unfamiliar ones, and features of contemporary legal rules or institutions, so often those that just happen to be taken to embody the rule of law in our own time and place, come to be thought of as default settings for its achievement, even as necessary settings. That can tie us simply to what we happen to know, rather than allow us to explore whether there are other ways of getting where we want to go. It makes it hard to think either that the rule of law might be needed in places we have not noticed, and served in the absence of familiar legal hardware, or indeed of it being disserved even where the hardware is present. And it often leads to goal displacement. A predicament looms, that has been so aptly noted of the whole rule of law promotion industry: ‘we know how to do a lot of things, but deep down we don’t really know what we’re doing.’11 So I recommend that we start by considering the point or end of the enterprise, not the means, the why before the what. I think that is appropriate in general, not just in relation to our topic. It makes no sense to start with putative means, unless you’ve worked out the end in view, the point. In this I am only following the wisdom attributed (according to Professor Google) to a CEO of the Black and Decker power tool company, who is alleged to have made the profound observation that ‘People don’t go into a store because they need one of our drills. They go because they need a hole in the wall.’ Most rule of law thinking has been obsessed with drills, and then moved on from there to see what they might do. If you’ll pardon the lame pun, I advocate identifying

11

Cited in Carothers (2006), 15.

The ideal of the rule of law and private power  19 the point we want to make, and working back from there to see what we need in order to make it. If you start with your destination and then ask how best to get there, you might be surprised where it takes you. To briefly state here the conclusion of a somewhat extended argument, the rule of law is what Jeremy Waldron calls a ‘solution concept’. So what is the problem it’s supposed to solve? In this respect following the tradition, I nominate a dangerous pathology in a particular but pervasive aspect of human interactions: the exercise of power. The problem is the arbitrary exercise of significant power. Arbitrary power is the problem to which the rule of law is suggested as part of the solution. Two points can be made about that: 1. There is a lot to be said, and a lot has been said over millennia, about why entities able arbitrarily to exercise serious power threaten citizens’ liberty, engender fear (even when, as republicans have insisted, the power is not exercised but remains available and known to be available to power wielders), deny respect for human dignity, and systematically hamper the possibilities of fruitful co-ordination among neighbours and strangers. More can be said, and elsewhere I’ve tried to say some of it.12 Here I just make the fairly uncontroversial and quite unoriginal claim that arbitrary exercise of power is typically and truly obnoxious, and that we have good reasons to value ways of avoiding it. On this view, a special anti-value, to which power-wielders are prone and against which some forms of legal institutionalisation are thought able to help us avoid, is the propensity of power to be exercised in arbitrary ways. 2. The promise of the rule of law ideal is that exercises of serious, significant power might be tempered, to use another ancient term deep in rule of law traditions, and that I find particularly useful. If you start with the purpose, the goal of tempering the exercise of serious power so it not be arbitrary, rather than with one or another list of putatively defining means of fixing up state law, the story develops in a different way. In particular, if arbitrary power is as serious a problem as rule of law thinkers have long suggested, then the way to start is by asking, in any particular time and place, where major sources of arbitrary power might lie, whatever they might be. Then, as a second step, go on to ask how their power might be tempered, moderated, so it is not available for arbitrary exercise. There is no in principle reason to assume before looking, either where you will find significant possibilities of arbitrary power, or what form it might take, or what might be needed effectively to temper it (particularly since that will depend on where you find it and in what form). You have to be prepared for surprises, and for changes, in all the above categories. Indeed, given a few obvious truisms about the human condition, among them that times change, circumstances differ, so too do local traditions which can be sticky, and other such platitudes equally obvious to everyone and equally often ignored, it is in principle unlikely that problems can be relied on always to come from the same place, or that solutions will be found to take some single universal and detailed legal-institutional form, its elements ready to be itemised and packaged for export, emulation, application and implementation. Unlikely, because solutions will differ with the forms the problem takes, their effects in the world will depend on a lot more than the terms of the law, the law depends for its effectiveness on much else, and often attempts to deal with the dangers of arbitrary power will need to look beyond

Krygier (2011).

12

20  Research handbook on the politics of constitutional law the law altogether. What works here, now, will vary with facts and circumstances here and now, and so an implication of this way of proceeding is not simply that anatomy comes second, but that it cannot be assumed always to take a single form, be found in some rule of law package of legal bits and pieces that conventional rule of lawyers assume, nor indeed to be found where they typically look for it. In this respect, visitors to a hardware store have it easier. Of course, one might discover that some domains are of special concern. But if the problem is arbitrary power, it would need to be shown, not assumed, that the state is the one and only place to find it, and state laws of particular conformations, always necessary and ever sufficient ways to temper it. Sometimes they might not be necessary; at all times they will not be sufficient. On this view, the animating ideal of the rule of law is, in principle, engaged wherever people or organisations are in a position to exercise significant arbitrary power liable to harm those subject to it. If untempered arbitrary power is harmful, then in principle the ideal of the rule of law must follow the potential for exercise of such power, whatever its source, so long as the harms it can do are significant. And they often are. There’s nothing a priori about locating the target, or deciding what to do about it. It’s an empirical (and theoretical) matter where the problems might arise and where and what solutions might be found. And it’s equally an empirical and theoretical matter what forms they might take. Of course, one attends to states because state agencies typically have huge power, some forms of which are unparalleled both quantitatively and qualitatively, and many opportunities and incentives to exercise it arbitrarily. Therefore, they have to be of concern to anyone concerned about arbitrary exercises of power. But states are not alone in wielding arbitrary power in ways that hurt. So, certainly, the rule of law is an ideal for states and law. It is also an ideal for politics more broadly conceived, which of course most mainstream thinkers would concede, though normally they say little about political solutions, and stick to the lawyers’ rule of law list of anatomical features. And it must also be an ideal for society, which some people find harder to recognise but is, after all, where the rubber hits the road. For: When we look first at political communities to ask whether the rule of law applies, we tend to be asking a question that does not focus only upon constraints on government power; we are also looking at whether there are constraints on individual behaviour. Likewise, we are not only looking at whether individuals are protected against the overreaching of governmental actors and institutions, but also whether individuals are protected against the violent, oppressive, or licentious behaviour of other private parties. A political community that did not suffer from an overreaching government could still lack the rule of law if it were a Hobbesian chaos of each against the world, or a stable community of domination by a mighty few.’13

On this understanding, deciding whether the ideal of the rule of law is relevant to private power is not a decision whether something designed for another purpose might be of interest by analogy with the Ur-culprit, or extended anywhere out of its normal range, but one which from the start prima facie includes any domain, person, or agency with significant power that might be exercised arbitrarily in ways that harm. The burden of argument is reversed: not whether the rule of law can be extended beyond its natural domain, but rather whether there is any reason to exclude its reach from what in the first instance falls within its natural domain: which, to repeat, extends to any sources of significant power that can be exercised arbitrarily Zipursky (2014), 147. See also West (2011).

13

The ideal of the rule of law and private power  21 in ways that cause harm. What one is dealing with is not extension which might or might not be justified, but direct implication, which might or might not be narrowed for other reasons. But then you need to provide the reasons, not assume them. What reasons might they be? What sort of argument might lead one to such narrow scope in societies where, as Marx already noted, private power is not nothing?

3.

THREATS BEYOND THE STATE

In relation to the first assumption, that is the state as the peculiar locus of rule of law problems, many people have believed that there is something special and unique about the state, that affects the matter, both qualitatively, because states are sovereign entities pursuing goals and employing means perhaps unlike any others, or quantitatively, for reasons to do with the sheer amount of power resources that states can draw upon. As for the qualitative dimension, the distinction can be questioned. Today the extensive outsourcing of so many erstwhile governmental activities might suggest otherwise, and Selznick pointed out, over 50 years ago, that in many respects there is less and less functional difference between governmental powers and organisations and those of huge corporations that the political morality expressed in the former might well be and should be transferred to the latter: The most important source of the weakness of public-law jurisprudence is the great growth of large-scale organisation, both public and private. A striking feature of this development is the convergence of governmental and nongovernmental forms of organisation and modes of action. A great deal of government activity is similar to that carried on by private groups. Government today includes many activities and agencies that have little to do with the distinctive functions of a sovereign and to which, therefore the traditional logic of public law may not properly apply. At the same time, discussions of the modern corporation and trade union, in many ways the representative institutions of industrial society, have increasingly stressed their ‘quasi-public’ status. It is asked quite seriously whether such institutions are really so different from large public enterprises. … This raises the question whether we have a theory of public law adequate to deal with the group structure of modern society.14

In any event, even if such qualitative distinctions were plausible and watertight, it is not obvious why they should serve to restrict the ideal of the rule of law to the sovereign comprehensive domain. The point is that wherever there is the ability to wield serious power there is potential for abuse. The ability to do so arbitrarily with harmful effects is not a governmental monopoly. Indeed, as Selznick and Anderson insist, private corporations are heavy hitters in the power (and the abuse) market too.15 If some category of power wielder is free at their pleasure, without announcement, for any reason, to hit many people in the face, it’s not to the point that there is another category of power wielder hitting even more faces. Faces should be protected from hits; simple but true. So perhaps the real issue is quantitative. States just have much more power than non-state outfits. In The Rule of Law in the Real World, Paul Gowder makes such an argument. His book is innovative and excellent in many respects, but when you ask what is the target of

14 15

Selznick (1969), 246. See further Sempill (2018), 3.

22  Research handbook on the politics of constitutional law the rule of law, whose exercise of power is it properly concerned with, Gowder’s answer is firmly conventional: the state. Why so? ‘[T]he unique significance of state violence generates a unique principle, the rule of law, to guard against its abuse’.16 He recognises, however, that ‘the boundary between ordinary citizens and the state can sometimes be quite porous’;17 that sometimes non-officials might ‘have such power that they genuinely compete with the existing government for monopoly control over the use of force in the jurisdiction’;18 and so he is prepared to extend the rule of law to non-state actors who can be squeezed into state or state-like, boxes. So, when he discusses whether non-state violence in the Jim Crow South might be an exception, he replies that non-state actors’ murders don’t need a new concept (correct) but that the real deal is that it is the state’s feasances and nonfeasances which enabled these wrongs to continue; it wouldn’t have happened without ‘the appalling, and instrumental, complicity of state authorities’.19 But that is not always the case. One quick and perhaps cheap retort, that nevertheless applies to more than a few cases, is: tell that to the Taliban. If, contrary to fact, it had been the case that the Afghan government had made and sought to enforce its laws in exemplary rule of law fashion over its institutions and officials, and the only problem was the Taliban or Al Qaeda, should we say that the rule of law was fine in Afghanistan, though they might suffer from some problems with private power? And quite apart from such terrible extreme cases, you don’t have to look far to find sources of arbitrary power emanating from ‘private’ entities, which are quite strong enough for those affected by them to wish something might be done about it and them. Particularly in this age where states are surrounded by non-state actors above and below them which make a lot of the running, doesn’t it make sense to ask whether their acts might raise questions about the ways they exercise their great powers, in ways similar to those of errant state officials, whether or not they are, or are like, such officials? There is, of course, a lot that’s special about state capacities and power. Rumours of the death of the state were premature, even before the pandemic and the Russian invasion of Ukraine. These tragic events remind us how important state powers are, both when exercised as they should be and as they shouldn’t. But as many people knew even before Marx reminded us, and as we all know when we’re talking about anything else except the rule of law, sometimes people, especially the weak, are oppressed by the arbitrary exercise of power by others. Often that happens without the connivance of the state, sometimes against the state, and sometimes when the state is against it. And sometimes it happens in ways we never knew previously, for example, through the medium of power over one sort of technology or another. Once, but far from always in human history, one might have been confident that states were uniquely more powerful than all other forces, and that is why they were rightly the centre of attention for anyone concerned with the values of the rule of law. But it is an empirical and variable matter whether threats to those values are going to come from the state or somewhere else or both. And today things are more complicated, even in nation-states. If non-state power is arbitrarily exercised by oligarchs, Mafiosi, warlords, tribal elders, Al Qaeda, NGOs, intimate partners, business executives, currency speculators, international ratings agencies, financial institutions and giant all-pervasive telcos, it too has the potential to bring with it the vices 18 19 16 17

Gowder (2016), 18. Ibid, 104. Ibid, 105. Ibid, 106.

The ideal of the rule of law and private power  23 of arbitrariness mentioned above. Banks can do a lot of damage too, and in recent relatively unregulated years and countries, they have. We have an interest in tempering power that has significant public consequence, whoever or whatever wields it. We have plenty of examples. As Tushnet and Bugarič observe in Power to the People: Private power can limit people’s choices, sometimes more dramatically than public power does: Think of a state that barely is able to keep civic peace, and large employers who offer jobs on the condition that their workers do pretty much whatever the employer wants pretty much all of the time. Or compare the everyday intrusions on privacy emanating from government (traffic cameras, perhaps) with the intrusions on privacy built into the algorithms of our social media giants. Exercising public power against private power can protect individual liberty understood in this way.20

So, if arbitrariness in the exercise of significant power is a threat to be combatted, governmental power cannot be assumed to be the only target, in many circumstances not even the primary target. Sources of arbitrariness and of power are many and vary. There are numerous societies in which arbitrariness flows as much or more from extra-state exercises of power, sometimes aided by suborned official agencies, sometimes opposed to them. To the extent that non-state organisations, or all sorts of inhabitants of semi-autonomous fields, are in a position to exercise significant power in ways that offend the values of the rule of law, they diminish its sway, whatever the state of official legal rules or institutions. As William Lucy has said: Arbitrariness can flourish in non-legal contexts just as much as in private law and public law contexts, but it is usually equally objectionable in all. And what is objectionable about it is, in part although perhaps not in whole, that it subverts or undermines many of the values and conditions the rule-of-law ideal is alleged to serve.21

4.

RESPONSES OUTSIDE THE LAW

Broadening the terrain where one might expect to find rule of law problems and targets, to include private power, is the easier part of my argument. But I want also to extend it to our understanding of what is required for effective solutions to rule of law problems as well. Even staying with conventional notions of law as the vehicle of the rule of law, we must reckon with the extent to which such laws depend for their effectiveness on their relationships with private powers at virtually every level. The great legal anthropologist Sally Falk Moore points out that ‘legislation is based on folk notions of social causality, on ideas of how to make things happen through the use of the power of government’.22 What she says of legislation is no less true of jurists’ accounts of the rule of law. And though jurists typically leave the systematic analysis of social causality to others, among them social scientists, they cannot so easily avoid the problem. Indeed much that they say about what the law is and does, and what it should be and do, depends and must depend on notions of social causality found in law and legal precedents and assumptions, notwithstanding that like most folk notions these are typically implicit, not deeply considered, and often sociologically uninformed. Moreover, the

Tushnet & Bugarič (2022), 3. Lucy (2014), 43. 22 Moore (2001), 6. 20 21

24  Research handbook on the politics of constitutional law folk notions of both legislators and jurists are not those of folk-in-general, but of legal folk. No surprise that when they think of law and social causality, state law is assumed to stand front and centre. A few sociological truisms: Unless it is brutally enough administered to pulverise anything in its path – a rare event, even in totalitarian countries, and hard to sustain – the effectiveness of state laws will be heavily dependent on their degree of synchronisation with social orderings generated from within, and that generate, non-governmental social networks, arrangements and configurations of power. Indeed in totalitarian and authoritarian polities, the very lack of synchronisation between exercise of state power and social realities and possibilities often generates informal practices in society which at the same time subvert the official order and try to make up for its inadequacies.23 Both in these situations of chronic lack of sync and ones where the mesh is smoother, one can talk as much of ‘the law in the shadow of indigenous ordering’24 as of the more familiar ‘bargaining in the shadow of the law’. Whenever law stakes a claim to rule, the upshot of the many potential sources of private powers, normative, structural, cultural and institutional overlaps, collaborations and competitions in every society will differ markedly between (and often within) societies. Whether and how people will interpret the state’s laws and respond to them, how highly they will rate in comparison with other influences – these things depend only partly on what the law says, how it says it, and what the law is intended by its makers to do. In complex and variable ways, people’s responses to state law depend on how, in what form and with what salience and force and communicated residue of initial purpose, that law survives to be able to penetrate all these intervening media and sources of power, how attuned to it putative recipients are, and how dense, competitive, resistant or hostile to its messages they might turn out to be. So much writing on ‘the state’ and ‘law’ and the rule of law ignores, however, how various are the phenomena and relationships clumped under these apparently simple and single concepts, and what happens in between. Moreover, lest one think this is only significant in pre-modern or developing societies where social connections are strong, and state law alien and weak, there is a sense in which the complexities of social causality are even greater in developed societies with overarching states, than elsewhere. Thus Moore again: It seems incontrovertible that the more complex a society, and the greater the appearance of rational control of law , the more delegation there will be in government and administration and the more areas of discretion and semi-autonomous activity there will be in the subparts of the society, formal and ‘informal’ ... This view of complex society, or of any society, leads one to a paradox. Formal reglementation can control certain behavior, but not the aggregate of behavior in a society. The more ‘rational’ a society seems in its parts, and its rules, and its rules about rules, the thicker the layer of formalism and ideological self-representation to be penetrated to find out what is really going on. ... [O]ver time, reglementary control can be only temporary, incomplete, and its consequences not fully predictable. The study of reglementation is therefore the study of the way partial orders and partial controls operate in social contexts.25

See Ledeneva (1998) and Ledevna (2006). See Galanter (1981), 17. 25 Moore (2001), 29–30. 23 24

The ideal of the rule of law and private power  25 To work out the implications of these sociological realities requires evidence and reflection on matters of social theory and social reality. But how many lawyers and legal philosophers think that is their business? International rule of law promoters have started to think so after repeated bruising disappointments, when their checklists run up against varying social realities. Since the industry is relatively new, that has only happened recently (though with some, at least intellectually, disruptive force),26 even though sociological reflections on social causality are actually quite old. Much of the disappointment found in attempts to sow the rule of law in fallow fields abroad could well have been predicted ahead of time, as indeed it was, by thinkers promoters didn’t listen to. And neither sociology of law nor the experiences of rule-of-law promoters has had much resonance among legal philosophers who concern themselves with the rule of law. And yet, to quote Moore one last time, from her 1978 collection of essays published even earlier: Ordinary experience indicates that law and legal institutions can only effect a degree of intentional control of society, greater at some times and less at others, or more with regard to some matters than others. That limited degree of control and predictability is daily inflated in the folk models of lawyers and politicians all over the world.27

The significance of state law in society must be understood against the background of Galanter’s epigrammatic observation that ‘[j]ust as health is not found primarily in hospitals or knowledge in schools, so justice is not primarily to be found in official justice-dispensing institutions. People experience justice (and injustice) not only (or usually) in forums sponsored by the state but at the primary institutional locations of their activity – home, neighbourhood, workplace, business deal and so on.’28 In relation to effecting the rule of law, the lawmakers’ job is over when the messages are sent. But the interpreters’, enforcers’, evaders’, ignorers’ and competitors’ job has just begun. And there are many other messages, from many other sources, that fill the airwaves. People listen to different ones, in different ways, and don’t listen to some because they listen to others. And there are plenty of others, for all the reasons Moore has explained. Many of them, typically most of them, do not stem from governments. This is all law-and-society 101, but it finds it hard to break into the law and philosophy of the rule of law.

See Hadfield & Weingast (2014); Pritchett & Woolcock (2002); more generally, for disruptions that I favour, see particularly the publications of the Justice for the Poor group in the World Bank, among them by Deborah Isser, Michael Woolcock and their associates; and see http://​blogs​.worldbank​.org/​ governance/​towards​-justice​-in​-development. 27 Moore (2001), 2. See similarly Galanter (1981), 20: ‘[t]he mainstream of legal scholarship has tended to look out from within the official legal order, abetting the pretensions of the official law to stand in a relationship of hierarchic control to other normative orderings in society. Social research on law has been characterised by a repeated rediscovery of the other hemisphere of the legal world. This has entailed recurrent rediscovery that law in modern society is plural rather than monolithic, that it is private as well as public in character and that the national (public, official) legal system is often a secondary rather than a primary locus of regulation.’ 28 Galanter (1981), 17. Compare Selznick (1961), 84: ‘education, politics, religion, and other social activities are found outside of the specialized institutions established to deal with them. Sociology has located these phenomena “in society,” that is, in more informal and spontaneous groupings and processes.’ Selznick thought the same was true of law. 26

26  Research handbook on the politics of constitutional law None of this is to say that state law is unimportant. Nor that we should simply upend legal centralism and put some vaguely characterised, bulbous and undifferentiated ‘society’ in its place. In modern circumstances, and virtually the whole of the developed and undeveloped world is affected by those circumstances, the state is a potentially crucial institutional factor in the fate of the whole of society, and its laws are often crucially important. But how important, and even if important, in what ways acts of state and acts of private power work out in the world, are questions whose answers are necessarily and heavily dependent on the plural and complex social, economic and political contexts in which they occur and into which they intervene. Taking the ideal of the rule of law seriously requires recognition that many of its most significant potential sources of support are likely to be found, indeed will need to be found, in institutions, practices and traditions in the wider society, not merely in or even near the obvious institutional centres of official law. So, the salience of features of legal institutions, formal and procedural characteristics or whatever, nominated to constitute the rule of law and recommended to countries in need of it, depends on how successfully they can support the attainment of this value. That has to be the test. To the extent they can temper power, they are properly called upon to support the rule of law – at least in that society. To the extent that they cannot, however – and this extent will vary between societies, times and circumstances – it is not at all clear why we fix on them so, still less try to extend them to places where they might merely have parodic rule of law roles. The challenge for anyone seeking the rule of law anywhere is not primarily to emulate or parody practices that might have worked somewhere, but to find ways of reducing the possibility of arbitrary exercise of power, whatever that takes, what-or-whoever has it, wherever one happens to be. If barriers to arbitrary power might come from non-state sources as well, in other words, there is no reason a priori to limit one’s attention either to state power or to state-based laws as constraints on arbitrariness of the exercise of such power. To the extent that extra-state institutions, practices, and so on, contribute to diminishing the opportunities for arbitrary exercise of power, they serve the ideal of the rule of law, perhaps more than can the law itself. State law should be viewed, then, not as the always-necessary centrepiece of power-tempering craftsmanship to which other measures are inferior or supplementary addenda, but as one implement among several, in some respects and particular circumstances of potentially distinctive importance, but dependent for its success on many other things, and often arguably not more important for the achievement of its own goal than they. That, again, does not make state law unimportant, but it might enable us to see its importance in perspective and as variable with time and circumstance. State/non-state, public/private, can’t be the pivots for people who value the rule of law, since the state is not the only power-wielding institution with significant consequence, either as source of threat or of promise. To say that the rule of law is strongly or weakly in evidence is to appraise a social state of affairs, with complex, multi-layered elements of various provenances, rather than simply to characterise any particular set of public and legal institutions. You have it insofar as, to the extent that, power is routinely exercised in ways consistent with the ideal, and certain other ways of exercising power – capriciously, willfully, arbitrarily, wildly, say – are rare. Since many of the major threats to the ideal of the rule of law come from outside the state, and many means of achieving that ideal are also to be found in the wider society, the rule of law must be sought there too.

The ideal of the rule of law and private power  27 Though the rule of law is conventionally cast as an ideal for states and for law, typically public law, then, I believe both its targets and its weapons should be more broadly conceived. The ideal of the rule of law is relevant to all entities in a position to exercise untempered power with harmful effect. And it should be open to any remedies that might help us avoid or reduce such dangers. Significant power can be found in many places, and if one seeks to approach the ideal, one should explore them. One will need all the help one can get, both to make laws effective, and beyond the law. With the important qualification that ought implies can, there is no prima facie reason why non-state power or non-state responses to power should lie beyond the sway of the ideal of the rule of law.

5. CONCLUSIONS It has been a long time since Eugen Ehrlich lifted the lid on the sociological truth that: ‘the center of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself.’29 That is much more than a sociological cliché. In 2005–06 I spent a year at an interdisciplinary centre at Stanford. One thing I was writing about there was the experience of rule of law promotion in post-communist societies. One of my colleagues was James House, a sociologist from Michigan, who studied health policy in the US. One problem that the US faces is that while it spends much more, absolutely and per head, on health care than any other country in the world, its health results are worse than those of countries comparable in other relevant respects. House argued that this problem would not be fixed by focusing on the usual suspects – hospitals, health care, medical technology, drugs – and trying to improve them. The US led the world there already, but the results of all this money, technology, and expertise were disappointing. The cure would have to be sought elsewhere, in education policies, welfare, improving distressed socio-economic circumstances, and so on. The results of that research were later published in a co-authored book, Making Americans Healthier: Social and Economic Policy as Health Policy, which explored ‘a growing paradox between its declining levels of population health relative to other wealthy nations – and even some developing ones – and its burgeoning spending on health insurance and medical care.’16 At the time, I was struck by parallels between House’s argument and the core assumptions of a certain tradition of socio-legal work, which I have been trying to integrate into thinking about the rule of law of the sort outlined in the previous section. It took a while to gel. Then at a conference I had organised in 2011 on media, democracy, and the rule of law, I was startled by the argument of a paper John Braithwaite delivered, with the apparently innocent title: ‘Is Separating Powers a Rule of Law Issue?’ He said that was the wrong question to ask. The right one was whether the rule of law is a separation of powers issue. The rule of law ‘is best thought of as part of a separation of powers rather than the reverse.’ Why should the order matter? According to Braithwaite: Conceiving the separation of powers as a rule of law question constrains … imagination in how to struggle for more variegated separations of powers. It tracks political thought to a barren, static constitutional jurisprudence of a tripartite separation of powers. This when conditions of modernity

29

Ehrlich (1936), xv.

28  Research handbook on the politics of constitutional law require us to see private concentrations of power such as ratings agencies and private armies … as both dangers and contributors to productive balances of power.

I don’t agree that the separation of powers is the key normative goal. I nominate tempering power, and the separation of powers as one among several strategies to secure it. But I do want to generalise his point. If arbitrary power is as obnoxious and tempering power as important as I have suggested, it is not obvious why we should come at them by focusing so single-mindedly on state arbitrariness or legal tempering. If you start with conventional rule of law public law presumptions, you will be limited in where you look for the kinds of pathologies worth fixing and the kinds of fixes worth having. Even where you go beyond those presumptions you will be limited to extensions of or analogies with what you started with. I end with a brief parable. For all I know, there is a distinguished tradition of writings on waste disposal, boasting many and lengthy treatises about enduring and pervasive problems. Leaking toilets, for example.30 Like jurisprudential writings, they are likely to say many things laypeople don’t understand and probably, again like jurists, they will advise technical measures to stop the leaks, that ordinary people don’t know much about. But the test remains: does what they advise fix toilets? If the answer is: ‘well they have some, mixed, success with public toilets, but they really have nothing to say about private ones’, one might take that to be a limitation in the theory of plumbing, not a triumph of hydrological achievement, still less aspiration. With Rule of Law it seems mysteriously different. You can do all this public law stuff, admit that it doesn’t deal with a whole range of problems people might want it to and which are of exactly the kind it’s advertised to cure, and may not on its own even be the gamechanger in the domains where it is thought to matter, but still the game keeps being played under the old rules. My hope is that we can clean things up as it were, by flushing that way of thinking down the …

REFERENCES Acemoglu, Daron & James A. Robinson. The Narrow Corridor. How Nations Struggle for Liberty (Penguin, 2020). Anderson, Elizabeth. Private Government, How Employers Rule Our Lives (and Why We Don’t Talk About It) (Princeton University Press, 2017). Benidickson, Jamie. The Culture of Flushing: A Social and Legal History of Sewage (University of British Columbia Press, 2011). Carothers, Thomas. Promoting the Rule of Law Abroad. In Search of Knowledge (Carnegie Endowment for International Peace, Washington D.C., 2006). Ehrlich, Eugen. Fundamental Principles of the Sociology of Law (Harvard University Press, 1936). Fleming, James E. (ed) Getting to the Rule of Law, NOMOS 50 (New York University Press, 2011) 64–104. Galanter, Marc. (1981). ‘Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law,’ Journal of Legal Pluralism and Unofficial Law 1: 1–47. Gowder, Paul. The Rule of Law in the Real World (Cambridge University Press, 2016). Hadfield, Gillian K. & Barry Weingast. (2014). ‘Microfoundations of the Rule of Law’ Annual Review of Political Science 17: 21–42. Krygier, Martin. ‘Four puzzles about the rule of law: Why, what, where? And who cares?’ in Getting to the Rule. 30

For one example, see Bendickson (2011).

The ideal of the rule of law and private power  29 Ledeneva, Alena V. How Russia Really Works. The Informal Practices that Shaped Post-Soviet Politics and Business (Cornell University Press, 2006). Ledeneva, Alena V. Russia’s Economy of Favours (Cambridge University Press, 1998). Lucy, William. ‘The Rule of Law and Private Law,’ in Lisa M. Austin and Dennis Klimchuk (eds) Private Law and the Rule of Law (Oxford University Press, 2014). Moore, Sally Falk. ‘Introduction,’ in Law as Process. An Anthropological Approach, 2nd edition (James Currey, 2001). Pritchett, Lant & Michael Woolcock, ‘Solutions when the Solution is the Problem: Arraying the Disarray in Development,’ Centre for Global Development Working Paper No. 10, September 2002, 17, at http://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​=​1106236. Selznick, Philip. (1961). ‘Sociology and Natural Law’ Natural Law Forum 6: 84–108. Selznick, Philip. Law, Society, and Industrial Justice (Transaction Books, 1969). Selznick, Philip. The Moral Commonwealth (University of California Press, 1992). Sempill, Julian. (2018). ‘What Rendered Ancient Tyrants Detestable: The Rule of Law and the Constitution of Corporate Power’ Hague Journal on the Rule of Law 10: 219–53. Tamanaha, Brian. On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004). Tushnet, Mark & Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press, 2022). West, Robin. ‘The Limits of Process,’ in ed. James E. Fleming, NOMOS 50 (New York University Press, 2011), 47. Zipursky, Benjamin C. ‘Torts and the Rule of Law,’ in Lisa M. Austin and Dennis Klimchuk (eds) Private Law and the Rule of Law (Oxford University Press, 2014), 147.

3. The politics of legal ideology Julie Novkov1

This chapter explores the politics of legal ideology across several dimensions, and in doing so, illustrates ideology’s relationship to law. It focuses primarily on the United States but draws in some comparative analysis to clarify the relationship between politics and ideology in legal systems in which legal argumentation is consequential and judicial reasoning transmits legal ideas. In such systems, politics, ideology, and discourse relate to each other closely and in a constitutive fashion. The relationship between law and ideology is multifaceted and plays out in different ways across different constitutional contexts. In considering this relationship in constitutional settings, we can see the legal system itself as an ideological structure, as a means of conveying particular ideologies external from it, or in both registers simultaneously. A constitutional system’s relationship to a dominant ideology can also contribute to the legitimation of a regime. Ideology has multiple meanings and analytical purposes in sociolegal scholarship. For quantitative political scientists in the United States, the first thing that may come to mind is judicial ideology as a synonym for measurable political attitudes falling on a spectrum ranging from liberal to conservative. This understanding, however, does not fully capture the dynamic nature of the concept in relation to law and constitutionalism. ‘Ideology’ captures the political ideologies that structure people’s understandings of the operation of power through the state, but also the ways that law itself and legal systems operate as ideologies. To complicate matters, law and courts can also function as vessels for ideologies: they translate cultural understandings into state policies and practice, they structure and legitimate discourses of power, and they function as a frame by providing a bounded discursive space within which ideological claims are articulated. Scholars in the law and society movement have highlighted the importance of studying ideology as a means of understanding ‘legal life’ (Hunt 1985, 12). In the context of the United States and other democratic systems, while law constitutes the state and defines its powers, boundaries, and obligations, it is something other than the state itself. It functions as the ‘bearer of important ideological values,’ (Hunt 1985, 14) but also provides a conduit for ideological values to flow into the state. Like other ideologies, legal ideologies function to combine ideas into ordering frameworks. When animated by or expressed through law, ideologies connect readily to the state and its capacities. As Barbara Fields notes in describing race as an ideology, ideologies are not themselves material, but their consequences have undeniably material effects in the world (Fields 1982). This chapter will proceed by explaining some aspects of the relationship between law and ideology, focusing on how ideas mediate between the law and the material world. It will address rights consciousness as an ideology. It will discuss how ideologies can work The author thanks Victor Asal, Christine Bird, Peter Breiner, José Cruz, Virginia Eubanks, Brian Greenhill, Matthew Ingram, Greg Nowell, Mort Schoolman, Stephan Stohler, Tim Weaver, and the volume editors for helpful feedback on this chapter. 1

30

The politics of legal ideology  31 through legal pathways to gain legitimacy, using the racial ideology of white supremacy as an example. These sections draw heavily upon a law-and-society literature focusing primarily on the United States. The following section expands the sphere of interest by discussing the relationship between law and ideology in comparative contexts as it structures preferences for democratisation and authoritarianism primarily in Latin America. Throughout, the text will address how ideology can be studied, a challenging task for an analyst who wants to understand its function as a cultural phenomenon that does not yield completely to positivist measurement and identification.

1.

WHAT IS THE RELATIONSHIP BETWEEN LAW AND IDEOLOGY?

Constitutional politics always implicate and integrate ideological mechanisms, as James Tully illustrates in his broad reading of constitutional projects (Tully 1995). Political actors recognise that speaking in a legal register can be effective in promoting their preferred frameworks and outcomes. Both legal ideologies and ideologies that play out in legal terms and spaces interact with politics. If politics, in Lasswell’s famous formulation, is about who gets what, when, and how, legal ideology does a lot of the work of rendering these outcomes legitimate. While political scientists who study the US Supreme Court often define ideology as political ideology on a liberal-conservative spectrum and analyse it in those terms, this chapter adopts a broader conception. Comparativists note that an analysis of ideology should incorporate ‘other kinds of ideational variation among judges, including “judicial role conception”’ (Ingram 2016a, 744). In thinking about ideology and constitutional law and politics, however, both ideologies held specifically by judges, those that infuse judicial rhetoric, and those produced and adopted by the broader legal community also matter. Ideology relates to constitutional law and politics in at least three ways. First, certain ideas, when expressed in legal forms, take on ideological aspects and shape both constitutional development and common politics through their structuring capacity. The idea of rights is one of the most powerful examples. Michael McCann, for instance, shows how pay equity lawsuits filed on behalf of women helped the pay equity movement with mobilisation even when the suits themselves were not successful (McCann 1994). Second, ideologies themselves may be reflected in law, playing a role in structuring constitutional debate and decision-making. Indeed, the very act of engaging in constitution-making can serve ideological purposes, including ideologically driven state-making claims and criticism of the ideological stances of existing states (Mickonytė and Harzl 2023). Ideologies that succeed in these struggles become legitimated. Finally, advocates may promote ideologies by aligning them with political objectives that they seek to instantiate through constitutional law as a mechanism. Judith Shklar’s conception of legalism is a useful starting point. She argues that legalism underlies and unifies western understandings of law, legal systems, and the institutions and individuals that comprise it. In her analysis, legalism empowers the legal profession, ‘both bench and bar’ by serving as a political ideology for which ‘the court of law and the trial according to law are the social paradigms, the perfection, the very epitome, of legalistic morality’ (Shklar 1986, 1–2). Her expression of legalism as an ideology effectively captures both its organising energy and its self-reproductive operation. It captures the legal profession on the whole, encouraging its practitioners and agents to view law as a superior path not just for

32  Research handbook on the politics of constitutional law resolving disputes, but for thinking (Shklar 1986, 9). The value-driven nature of this enterprise appears clearly in discussions of the rule of law and its pejorative dark twin of lawlessness, understood most often as state action that has not passed through appropriate legal channels, respected legal processes, and ultimately been expressed through legal language. The role of language is critical here. Before proceeding to the three aspects of the relationship between law and ideology, it is worth noting the institutional nature of law generally and constitutional law particularly. Robert Cover’s description of law as violence put into words remains a useful approach. Legal interpretive acts, when engaged by state actors with authority, ‘signal and occasion the imposition of violence upon others,’ but also justify and legitimate state violence exercised against individuals and other entities (Cover 1985, 1600). Much of the point of legal struggle is to convince state actors to channel this legitimated violence to achieve desired outcomes. In doing so, legal advocates recognise that displays of raw power, or pitches to a particular judge’s perceived preferences, are generally insufficient. Within the norms and practices of a constitutional system, ideas must be mediated through or animated by legal language to succeed. The law and society movement has provided both theory and method through which to understand the relationship between law and ideology more broadly. Ethnographic work by David Engel laid further groundwork in the law and society literature on the relationship between law and ideology. He and other leading scholars in the movement, including Carol Greenhouse, Christine Harrington, and Sally Engle Merry, have illustrated how individuals understand their own relationships to law and its functioning through ideological lenses (Engel 1984; Greenhouse 1988; Engel and Munger 1996; Turkel 1988; Harrington and Merry 1988). Engel’s pathbreaking article ‘The Oven Bird’s Song,’ published in 1984, examines conceptions of law and litigiousness in a small rural county in Illinois where long-term residents’ perceptions of proper and improper uses of law revealed an underlying ideological framework (Engel 1984, 552–54). While rates of personal injury litigation were relatively low in the county, especially in comparison to contract suits, residents viewed personal-injury plaintiffs as greedy troublemakers looking to make a quick buck and decried what they perceived as a flood of litigation. Beneath the surface of these apparently baseless criticisms, Engel identified two motivating factors: ‘culturally-conditioned ideas of what constitutes an injury and how conflicts over injuries should be handled,’ and tension within the community sparked by challenges to the traditional order brought by newly arrived ‘outsiders’ marked by class and race (Engel 1984, 554–55). Long-term residents embraced an ideology of self-sufficiency and reliance that sharply muted any understanding of seeking compensation even for overt negligence as a matter of rights or responsibility. The act of bringing a personal injury suit in this ideological environment functioned as a hostile breach of community standards, even if insurance companies were the true parties in interest on both sides (Engel 1984, 563–64). In Engel’s rural county, a different framework prevailed underneath disputes over debts. Despite expressed concerns about the litigation explosion in the personal injury context, the far higher rate of suits brought to enforce contracts raised few eyebrows among the long-term residents. Creditors enthusiastically brought their complaints to the courts or even the police, and offence was reserved for the breachers of these contracts. In short, Engel identified as a ‘core value of the traditional culture’ the idea that turning to the state to exercise punitive or enforcement power was appropriate when people broke financial promises (Engel 1984, 576–78). Taken together, these divergent responses articulated a ‘philosophy of individual-

The politics of legal ideology  33 ism’ that supported traditional societal norms perceived as being under threat by the newcomers to the community. These works underline their authors’ commitment to the constructed nature not only of legal narratives but also of facts. In contrast to positivist approaches that do not interrogate the meaning of legal facts, many law and society scholars examine how phenomena in the world come to have meaning when they are read through the filter of the legal process. Interrogating this meaning-making process helps to illuminate both how facts are constructed in legal terms and the relationship that legal subjects bear to the constructive process. As the work of Engel and others illustrates, ideological commitments shape both perceptions and constructions of legal facts. In 1988, the Law and Society Review published a special issue on law and ideology featuring several articles extending these themes. The editors invited analyses of five aspects of ideology ranging from traditional Marxist readings around false consciousness, domination, and class consciousness and analysis to broader understands focusing on systems of belief, ‘coherent meanings encoded in social relations and institutions,’ and processes that produce meanings and ideas (Special Issue Editors 1988, 629). The symposium emphasised that reading law in shifts the conversation beyond an instrumental Marxism that dismisses institutions as superstructural. Rather, ideas take center stage, and ideological studies of law ‘connect behavior with culture through the concept of social practice’ (Special Issue Editors 1988, 632). Analysing legal ideologies also provides more purchase on how power operates, laying bare what they naturalise, categorise, conceal, falsify, and distort, all while ‘deny[ing] that they are themselves constructions’ (Special Issue Editors 1988, 634). In the symposium, Carol Greenhouse explains the payoff from analysing legal ideology. Getting a firm handle on the symbolic aspects of law (like tracing the meanings and significance that a local court has), its engagement with politics and culture, and its contributions to reproducing differences is challenging, but taking an interpretive approach by focusing on ideologies provides a concrete path to do this work (Greenhouse 1988, 687–88). In her analysis, ‘legal ideologies … involve conventionalized invocations of norms and rules that simultaneously suggest and eliminate competing ideologies by elaborating locally significant categories of meaning’ (Greenhouse 1988, 689). Her ethnographic analysis illustrates how residents manipulated symbolic distinctions between newcomers and locals in a former agricultural area with a small commercial centre to navigate change. While the geographic scope of her research is small, the dynamics she describes provides a model for understanding the operation of ideology in other contexts. Christine Harrington and Sally Engle Merry add to Greenhouse’s discussion by encouraging the study of ideology to better understand ‘law as a signifying agent, as a system of meanings’ (Harrington and Merry 1988, 710–11). In their view, this approach focuses attention on the constitution of sociolegal phenomena, encouraging attention to the ‘ideas, practices, and material conditions’ that do this work. Their study of debates over community mediation shows how ‘ideologies are formed through the mobilization of symbolic resources by groups promoting different projects,’ ultimately concealing the power relations underneath some mediation models (Harrington and Merry 1988, 713, 730–31). These approaches are useful, and while Engel’s and Greenhouse’s studies take place in the United States, the insights, as Harrington and Merry illustrate, are not limited to that context. The deeply ethnographic, on-the-ground emphasis, however, may raise questions about how they might apply to constitutional law and politics, often understood and studied

34  Research handbook on the politics of constitutional law as the province of legal and political elites. Pamela Brandwein’s work answers this question by interrogating the role of ideas in legal institutions, emphasising how some approaches to constitutional scholarship emphasise the constitutive nature of these institutions (Brandwein 2011a, 188–89). Interpretive scholars of American constitutional law, she argues, understand institutions as ‘embodying ideological structures, values, and aspirations,’ which empowers them to structure the boundaries with which decisions are made (Brandwein 2011a, 190). Attending to the development of legal doctrine and rules, these scholars trace ‘discourses of legitimation’ as they produce material effects. Like the law and society scholars, this group of scholars studying the development of American constitutionalism (which includes Howard Gillman, Mark Graber, Ronald Kahn, Rob Mickey, Brandwein herself, and several others) look beyond judges and their words to understand the constitutive work of discourse. For most, the broader legal community engaged in this project – even regarding constitutional law and interpretation – includes legal scholars and practitioners. For some, the circle of analysis also includes mobilised activists who are seeking to expand or constrain the scope of constitutional meaning. Brandwein’s own work exploring the early history of the Fourteenth Amendment’s state action doctrine provides an excellent example (Brandwein 2011b). She illustrates convincingly that the framers of the amendment and early judicial interpretations of it presumed that Congress would have the power to intervene to protect civil rights if the states failed to exercise their police powers appropriately to ensure them. She then shows how developments in the courts and the broader legal community excised the concept of state neglect from constitutional discourse in the late nineteenth and early twentieth centuries, stripping Congress of essential regulatory power and hamstringing federal enforcement efforts to remake racial and constitutional politics. This broad-based transformation was so successful across the legal community that even mid-twentieth century advocates for racial justice accepted the idea that congressional power under the fourteenth amendment could be exercised only to restrict only state action, channeling discursive creativity toward finding alternative paths to justify legislation (Brandwein 2011b).

2.

LEGAL IDEOLOGY AND THE EXAMPLE OF RIGHTS CONSCIOUSNESS

One concrete illustration of the constitutional politics of legal ideology lies in the growth of rights consciousness and its impact on efforts to achieve social change. Rights consciousness, or the individual and collective propensity to identify a wrong and seek legal redress on the basis of rights, has been a key factor in mass movements that use legal mobilisation as a strategy. In the United States and in comparative contexts, scholars have disagreed about the impact of rights consciousness and whether it is beneficial or damaging to movements, but the reality of rights talk and its power to attract adherents from within and outside the legal community is not in question. Stuart Scheingold’s classic discussion of the myth of rights describes the ideological nature of American belief in rights and the rule of law. As he frames it, drawing from Shklar, ‘We believe that politics is and should be conducted in accordance with patterns of rights and obligations established by law,’ a belief that links law and legitimacy to rights as they flow through legal discourse (Scheingold 2004, 13). This ideology, which Scheingold describes as the myth

The politics of legal ideology  35 of rights, contributes to the prominent role of law, courts, and litigation as premier political institutions and practices for seeking social change. His critical perspective identifies how the rights framework, when it is the dominant framework for reform, can be both self-limiting and counterproductive for movements. In his analysis, the myth of rights interacts powerfully with and reinforces mainstream American values, further valorising and legitimating belief in ‘individualism, private property, the market economy, and limited government’ (Scheingold 2004, 18). The ideology rests on acceptance of three principles: the constitution as the foundation for a ‘just political order,’ the employment of legal reasoning as an effective tool for updating and maintaining constitutional principles, and the presumption that American politics ‘is responsive to constitutional principles’ (Scheingold 2004, 23). Scheingold notes that the transformation of political disputes into legal controversies and the tendency to constitutionalise these controversies as questions of rights traces back to the founding, noting Tocqueville’s recognition of this dynamic. He further highlights the importance of rights rhetoric as political, but political in ways that conceals its links to power in its reinforcement of existing hierarchies. Scheingold is careful to underline that his issue is not with rights themselves, but rather their ideological function, which narrows both the scope and method of potential change by demanding that proposed changes accommodate themselves to the existing liberal individualistic model and evacuate politics and direct action from the field of play. Legal education and norms of practice constrain both lawyers and activists who primarily turn to law for recourse (Scheingold 2004, 151–69). Ultimately, the myth of rights traps unwary advocates, and he counsels resisting the appeal of ideology and thinking critically about the political uses and limits of rights. In the second edition of the book, his preface summarises law and society scholars’ response to his work, acknowledging progress made toward a radical decentering of legality (Scheingold 2004, xxii). Scheingold acknowledges the work that other scholars have done to explain the role of legal consciousness in framing ideologies of rights, discussions that have continued in a variety of national contexts. Michael McCann’s analysis of the pay equity movement illustrates how, even when courts did not acknowledge rights claims, litigation and legal advocacy nonetheless contributed to the growth of rights consciousness and helped reformers to advance the movement (McCann 1994). George Lovell investigated complaint letters that ordinary Americans wrote to the new Civil Rights Division immediately after its foundation in 1939. He found that individuals asking the Civil Rights Division for help understood a remarkably broad range of concerns and issues to be potential rights violations subject to legal redress (Lovell 2012b). Jennifer Woodward illustrates a similar dynamic in the early operation of the Equal Employment Opportunity Commission after the passage of the Civil Rights Act of 1964. With few cues available to understand what sex discrimination meant, flight attendants reached out as individuals and organised groups to challenge demeaning and discriminatory employment practices through a rights framework (Woodward 2015). The ideology of rights, however, does not always translate into seeking remedies through the legal system, even in the highly rights-conscious environment of the United States. As Susan Silbey and Patricia Ewick have illustrated, individuals experience legal consciousness differently, which shapes the ways that they engage – or choose not to engage – the legal system (Ewick and Silbey 1998). David Engel and Frank Munger trace the link between the ideology of rights and legal consciousness in their work on individuals’ experiences of disability and the Americans with Disabilities Act (Engel and Munger 1996). They express the relationship as a seeming paradox: in a culture awash with rights talk, Americans tend to under-assert their

36  Research handbook on the politics of constitutional law rights, even when they have legally colourable claims. As other scholars have shown, wronged individuals may lack legal counsel, they may not recognise the wrongs they have experienced as legal wrongs, and they may experience the system itself as slow, incomprehensible, and unresponsive (Bumiller 1992). And the state itself may not enforce rights claims evenly, to the point that in some countries, rights enshrined in the constitution are nothing more than words (Chilton and Versteeg 2023, 12). But rights ideology itself may pose barriers. As Engel and Munger note, the ADA represented a triumph of rights ideology, extending the paradigm of antidiscrimination rights to a previously mostly legally unrecognised class of beneficiaries in response to consciously mobilised group advocacy. Nevertheless, its passage did not immediately prompt individuals with disabilities to rely instrumentally on the statute to advance rights claims in the face of discrimination. By relying on life stories, they illustrate the shifting relationship among legal rights, consciousness, and disability in their research participants’ lives (Engel and Munger 1996, 16–18). For one of their participants, a woman in a wheelchair, claiming rights under ADA would emphasise both her difference and dependence. A second participant embraces the idea of pursuing rights claims, but places rights claims within an ethic of care, reframing rights as a means of securing protection for vulnerable people like herself (Engel and Munger 1996, 30–34). And even if rights proliferate in a particular national context, the proliferation itself may produce conflicting rights frameworks, enabling some actors to circumvent one set of rights by prioritising a competing framework, as when property rights are asserted to defend against social or environmental claims (Chilton and Versteeg 2023, 19). What can we make overall of these efforts to understand the legal and constitutional ideology of rights? George Lovell finds that across the broad array of law and society scholars grappling with the myth of rights, two common themes prevail. First, he notes, ‘law and legal ideology can be linked to processes of legitimation that lead to acquiescence.’ Further, scholars investigating legal consciousness in many different terrains have concluded that ‘legality is a pervasive part of the process through which ordinary people create meaning in social interactions, and have linked ideological elements of law-like rights to hegemony and acquiescence’ (Lovell 2012a, 3). Yet, he claims, research has shown that the embrace of the myth of rights is partial and equivocal; while Americans believe in rights as entitlements and idealise a separation between law and politics, they see law as a political institution in its operation. Furthermore, rights consciousness often includes strategic or even cynical takes. In Lovell’s analysis, the work done on these questions leaves ample room for scholars ‘to develop a fuller account of people’s perceptions regarding the alternatives to inaction, a clearer sense of how legal ideologies shape those perceptions, and a better sense of whether activists can break down widespread perceptions of futility’ (Lovell 2012a, 23). These critical standpoints nonetheless leave room for a narrative of using legal ideology as a productive mobilising strategy. Even Scheingold advocates for embracing a politics of rights that recognises the potential that rights talk holds for mobilisation. McCann’s work extends this principle as a counter to Gerald Rosenberg’s insistence that the courts cannot independently generate social change, explaining that litigation campaigns can generate rights consciousness, providing the groundwork for both group identification and mobilisation (McCann 1994). Likewise, Rachel Cichowski, studying the European Court of Human Rights, finds that transnational activist groups have used international litigation in the Court to promote broader protections for rights and policy reform (Cichowski 2016, 895).

The politics of legal ideology  37 Where and when, then, is the ideology of rights most salient? Even with the limitations noted, it remains a powerful framework in constitutional politics. Efforts to mobilise conservative legal reform have embraced rights theorising and rights talk (Decker 2016; Teles 2008). While support systems, funding, and legal mobilisation mattered in the success of these efforts, one cannot discount the importance of the rise of property rights, anti-discrimination rights, the right to school choice, and the right of free exercise of religion to advance conservative legal and constitutional reform. Even in circumstances where rights talk seems unlikely to succeed in legal terms, the arguments are flexible, powerful, and readily available, as we have seen recently in efforts to resist public health regulations, including vaccine requirements, mask mandates, and density limitations in public spaces. The ideology of rights shapes constitutional politics by providing a ready framework, regardless of how firmly a myth of rights holds sway. The legibility and flexibility of rights claims renders them attractive beyond their use for achieving desired substantive outcomes. The framework nonetheless operates to constrain by encouraging the legalisation and constitutionalisation of political conflict, limiting both the available effective venue and scope of arguments. As rights talk and rights thinking expands, it becomes more difficult for alternatives to gain traction, and the success of reframing movements into claims about rights encourages further recourse to this strategy.

3.

COMPETING IDEOLOGIES EXPRESSED THROUGH CONSTITUTIONAL LAW: THE EXAMPLE OF RACE

Barbara Fields’ classic work on race in American history identifies races as ‘a notion that is profoundly and in its very essence ideological’ (Fields 1982, 144). By identifying race as ideological, she encourages understanding it as a historical product rather than a material fact or biological property, and directs scholarly attention toward the social, cultural, and political factors that have produced it. Two studies of miscegenation laws in the United States, Peggy Pascoe’s and my own, illustrate how racial ideologies have interacted with law and legal development, with the ideologies shaping the development of legal categories. The history of regulating miscegenation also illustrates how law can function to legitimate and systematise ideologies, and to mediate conflict between competing ideologies. While the idea of law as a crucial component of a white supremacist regime may be jarring, as Anna Lukina illustrates in this volume, evil regimes need law for a variety of regime-building and -maintaining activities, including ‘coercion and coordination … legitimation, education, and identity building’ (Lukina 2023, 7). Peggy Pascoe outlines the relationship between racial ideologies and law, explaining how laws against miscegenation provided the foundation for white supremacy and white purity. She shows how these laws and the legal struggles that justified them generated constitutional and scientific justifications for white supremacy by providing a conduit for naturalising race and racial inequality (Pascoe 2009, 6–7). This process in turn cast a long shadow on the meaning of constitutional equality in the United States. Pascoe’s story begins with the wave of new laws passed to bar interracial intimacy in the wake of the Civil War. She notes the contestation of these regulations through the Civil Rights Act of 1866 and the Fourteenth Amendment, and describes the legal pathways ultimately constructed to uphold them. Rather than reading these challenges as an early impulse toward racial

38  Research handbook on the politics of constitutional law equality thwarted by the rise of southern resistance to Reconstruction, she observes that miscegenation laws established boundaries around the institution of marriage, protecting it against injudicious exercises of white male prerogatives (Pascoe 2009, 24–27). During the uncertain period following the Civil War, criminal bans on interracial sexual intimacy produced a terrain for struggle between the emerging structure of white supremacy and white male autonomy to control and manage family configurations. By the 1890s, courts had turned against these challenges and placed ‘all interracial relationships back on the “illicit sex” side of the dividing line between sex and marriage’ (Pascoe 2009, 46). Key rulings in state courts in Indiana and Alabama and ultimately in the US Supreme Court integrated ideologies of gender and race into constitutional law. In Indiana, judges upheld an anti-miscegenation law against constitutional and congressional statutory attacks by relying on the special nature of marriage as a state institution. The state of Alabama, where the high court in 1872 had invalidated a justice of the peace’s conviction for solemnising an interracial marriage, saw the erosion of that ruling through successive decisions allowing differential punishments for interracial fornication and adultery. The development of white supremacist ideology received a major boost from the US Supreme Court in 1883, when the Justices ruled that punishing all parties in an interracially intimate relationship the same, regardless of the individuals’ races or genders, constituted equality (Pascoe 2009, 46–69). In the eyes of the Court, the distinction was between illicit and licit sex rather than on race, rendering miscegenation laws natural and defensible under equal protection. White supremacist ideology was not exclusively a phenomenon of the southern United States. Pascoe’s analysis of legal developments around miscegenation law in the American west illustrates how contests over these laws contributed to further refinements in racial categorisation and stricter racial definitions (Pascoe 2009, 135–59). Filipinos, Native Americans, Japanese, individuals of mixed racial heritage, and other problematic groups had to be identified and categorised. Through the early twentieth century, courts hearing challenges to convictions for miscegenation parsed questions of racial definition in their rulings, which rested upon an underlying commitment to white purity. The drive to defend white purity encouraged meticulous considerations of racial boundaries and reinforced the states’ use of police power to defend these boundaries in the name of public interest (Pascoe 2009, 140–56). As Pascoe describes, while the NAACP fought vigorously and successfully against the spread of anti-miscegenation laws in the north in the early twentieth century, its success in securing allies through its assault on educational segregation made it politically more difficult to continue the struggle in the mid-twentieth century. The time was ripe, however, and with the help of a small interracial Catholic organisation, Andrea Pérez and Sylvester Davis successfully challenged California’s ban in 1948. Writing for a narrow majority, Justice Roger Traynor confronted racial ideology directly, resting his ruling on a devastating critique of race classification and naturalised conceptions of race and racial difference. Justice Stephen Carter proposed an alternative ground, hearkening back to Justice John Marshall Harlan’s dissent in Plessy v. Ferguson and highlighting the language of colourblindness (Pascoe 2009, 219). While both sets of reasoning rested in equal protection, the split invited a range of interpretations of the meaning of the ruling and the most persuasive grounds for rejecting anti-miscegenation legislation. In Pascoe’s analysis, the ruling initiated a period of negotiation over the fate of these laws, both in terms of their continued existence and in terms of what grounds justified their invalidation and how these justifications would shape racial ideology going forward. It would take

The politics of legal ideology  39 until the late 1960s for miscegenation regulations to collapse, a process punctuated by the Supreme Court’s rulings in McLaughlin v. Florida and Loving v. Virginia. Pascoe notes that the path leading to this collapse, along with the constitutional reasoning expressed in Loving, contributed to the victory of a new racial ideology: that of colourblindness (Pascoe 2009, 283–91). Abandoning anti-miscegenation required the abandonment of white supremacy expressed through a legal commitment to define and preserve white purity through the operation of law. Southern policymakers responded by removing racial classifications from the law and embracing rigid racial neutrality as a new foundational racial ideology. As Pascoe explains, this transformation rewrote the history of anti-miscegenation law, erasing key elements. The collapse of the anti-miscegenation regime was reimagined as an inevitable development in response to the triumph of liberal ideals over a long-distant racist past. Marriage became a private institution reflecting individual choice rather than an institution intertwined with the public interest and designed to serve the interests of the state. And race classification was rewritten as always un-American and retrograde (Pascoe 2009, 290–96). These moves established colourblindness – like its predecessors – as a flexible and powerful ideology that facilitated the incorporation of racialised thinking into the heart of constitutional law and reasoning. Her discussion of the narrative work that constitutional law-making can perform in transforming the past resonates with Aleksandra Gliszczyńska-Grabias’s discussion of what she calls mnemonic constitutionalism, or a practice of establishing a unified historical paradigm that influences the shape of constitutionalism (Gliszczyńska-Grabias 2023). Pascoe’s work relates to Racial Union, my study of miscegenation law and its contestation in Alabama between the end of the Civil War and the beginning of the civil rights movement. Looking at state constitutional law and development, Racial Union also considers white supremacy and its expression in law. The aim is to ‘describe the linkage between racial ideology in politics and culture and its concrete manifestations in state institutions’ (Novkov 2008, 4). Legal struggles over the enforcement of Alabama’s anti-miscegenation law were an important proving ground for ideological struggles, not between egalitarianism and white supremacy, but between different understandings of white supremacy. Judges in Alabama channeled white supremacy through a legal order that left room for constitutional questions about the scope of state power to protect the natural order, but also for procedural questions about the elements of miscegenation, including racial definitions (Novkov 2008, 6–14). Racial Union identifies miscegenation as a key location for statebuilding in postbellum Alabama. Between the end of the Civil War and the 1890s, the idea that the state could exercise its authority to identify the family as the fundamental unit of the state gained currency. Alabama’s judges distinguished between the state-threatening nature of miscegenation due to its connection to potential family creation and the lesser problem of illicit sexual behaviour. The constitutional foundations of this constructive project laid the groundwork for Alabama’s infamous convention of 1901, when president John Knox declared the purpose of the new constitution to be the creation of a legally legitimate white supremacist state (Novkov 2008, 71–72). Over the first decades of the twentieth century, litigation over miscegenation provided space for defining, legitimating, and extending the ideology of white supremacy. For instance, in a series of cases decided between 1883 and 1916, Alabama courts ruled that prosecutors could not sustain convictions for miscegenation simply by showing that an interracial couple had engaged in one or scattered acts of intercourse. Rather, the offence demanded evidence that a relationship existed or was contemplated; even serial acts of prostitution would not be

40  Research handbook on the politics of constitutional law enough (Novkov 2008, 80–91). These cases reinforced the use of the miscegenation ban to defend and maintain the white family against interracial incursions while leaving room for casual sexual encounters that did not threaten the racialised and gendered order. Between 1918 and 1928, the Alabama courts considered and legalised a different facet of racial ideology as defendants sought reversals based on ambiguities in racial definition. Since the passage of the miscegenation ban, Alabama had defined Blackness in statutory terms as having at least one Black great grandparent, but defendants saw an opportunity in new discussions of race and racial classifications in this period. After some prosecutors were unable to persuade appellate courts to accept their identification of defendants as Black based on ancestral and cultural evidence, both the Alabama legislature and the Alabama Supreme Court moved to a one-drop definition of Blackness (Novkov 2008, 108–47). Even this expansive definition could not resolve all dilemmas over racial identification and a few defendants were able to raise enough doubt about their ancestry to escape conviction. Nevertheless, overall the rulings in this era ‘reinforced the continuing efforts to rationalize and contain racial prejudice and maintain white supremacy within the network of formal legal rules’ (Novkov 2008, 170). Ultimately, legalised and sanitised white supremacy in Alabama would triumph over its gaudy and violent competitor espoused by the Ku Klux Klan, as conservative Democrats broke the Klan’s formal grasp on political power and forced it into the shadows in the late 1920s. While the approaches taken in these two works differ, they both explain how legal developments incorporated white supremacy, legitimated it, and integrated it into the state. Law provided both a site for the development of supremacist ideology and for its translation into state policy and practice. Through this process, supremacist ideology was naturalised (Pascoe 2009) and legitimated (Novkov 2008), generating for the dominant class the sense that the law’s overtly racial aspects simply reflected racial difference and provided a means of securing the state against destabilising threats. Both works also illustrate that the developments generated through engagement with racial ideology left legacies of inequality that persisted after bans on interracial intimacy were removed. The intervention of colourblindness sought to overwrite this history and substitute a different version of thin equality for that endorsed by the Court in the 1880s. Colourblindness has in turn provided the intellectual foundation for the movement to undercut support for affirmative action and voting rights, illustrating the continued importance of racial ideology in constitutional law and politics.

4.

IDEOLOGY IN COMPARATIVE CONTEXTS

The US examples illustrate the value in focusing on ideology when looking to understand constitutional law and development. This value translates well into some comparative contexts, and comparative analysis generates additional insights about ideology by enabling consideration of how these processes operate in multiple national contexts. The comparative study of legal discourse and its relationship to ideology can generate fruitful insights. As comparative scholar Vivien Schmidt explains, discursive institutionalism (an approach that facilitates a focus on law and ideology) is particularly beneficial for comparative analysis. Discursive institutionalism, she explains, is more than just an investigation of the ‘explanatory of ideas and discourse.’ Rather, she advocates for a close focus on discourse as ‘not only the substantive content of ideas but also the interactive processes by which ideas are conveyed’ (Schmidt 2008, 305). Some examples follow.

The politics of legal ideology  41 As comparative courts scholar Stephan Stohler explains, comparison encourages focus on judges and their behaviour as key participants in coordinated discourse. He implements this in his own work by studying ‘the ideas and arguments shared by coalition elites … as they attempt to establish with a higher degree of precision the requirements of a legal instrument’ (Stohler 2019, 12). Stohler develops his theory through a study of equality rights cases in India, South Africa, and the United States in the periods when each country respectively was experiencing rapid evolution in constitutional standards. For each country, Stohler traces ‘changes in statutory and constitutional meaning related to race or caste policy within a specific policy domain’ (Stohler 2019, 27). The path of these changes – and the participation of judges responsible for making them – illustrates the importance of ideas in judicial decision making, but does not attribute all change to judicial discourse and ideas, explaining when and why judges hold the upper hand at certain strategic moments. His analysis emphasises how ideas have ‘coalition-building capacity’ that can shake up existing alliances. Ideological frameworks rise and fall as different configurations of groups and individuals embrace them, even if two competing frameworks may support the same outcome (Stohler 2019, 232). It likewise illustrates how the institutional structure of courts and their relationships to political elites, even in different national contexts, constrains the power of popular constitutionalism, since judges must always attend to ideational coalitions and ‘such public deliberations would be susceptible to partisan co-optation’ (Stohler 2019, 233). Comparing these phenomena across national lines enables the identification of the role of these frameworks in driving development. Comparative analysis illustrates other ways that we can understand the relationship of ideology to constitutional law, particularly in moments of judicial transformation. Comparative courts scholars are interested in understanding both why regimes empower courts, and when, in transitions from authoritarianism, courts become empowered and independent. Judicial independence is, as Vanberg, Broman, and Ritter explain, a political choice, and motivations supporting it may differ, but overall, transitions toward independence are taken when political actors see an advantage for themselves or their regime in doing so (Vanberg, Broman and Ritter 2023). The comparative courts literature often attributes the dynamics of these processes to the institutional and regime-preserving incentives that a fading regime may have, looking to how a threatened ruling party seeks to maintain power through the creation or enhancement of a powerful but beholden independent judiciary. A focus on ideology in this process provides an additional explanatory dimension. Both the way these transformations take place and the extent to which they result in extensive empowerment and a large degree of judicial independence depend upon how the judges in these enhanced courts understand themselves and their ideological perspectives on what constitutes proper rule of law. In particular, studies of courts in Latin America have illuminated these points. Matthew Ingram also uses comparison to understand how ideas have driven subnational judicial reform, developing his argument through an analysis of this phenomenon in Brazil and Mexico. His work shows how ideas about the ‘proper role of courts in democratic societies’ have significant and measurable consequences, influencing both the timing and content of reform and helping to explain why ‘political and legal elites would engage in costly behavior in pursuit of reform’ (Ingram 2016a, 3). In his view, reform largely results from purposeful judicial thought about the shape of judicial institutions. These ideas motivate judges, who can then influence political actors. To illustrate the causal role of ideas, he focuses on programmatic beliefs, or a ‘general set of policy areas related to a specific institutional sector

42  Research handbook on the politics of constitutional law and its sphere of activities’ and measures the operation of these beliefs both qualitatively and qualitatively. How do we know when ideas matter concretely? He argues for observing when discourse reflects commitments, when policies or choices are consistent even when the material incentives or environment changes, when policies differ even in the same context if different programmatic commitments are held, and when judicial actors engage in objectively risky or costly behaviour that reflects these commitments (Ingram 2016a, 65–67). Ingram’s work, in contrast to the previously described examples, addresses questions about the legacies of recently dominant authoritarian ideologies and how these legacies set baselines that shape the scope and location of reformist ideologies (Ingram 2016a, 54). He finds that ideas motivate both rightist and leftist parties to press for stronger judiciaries, though the content of their ideas and the structures driving them towards these positions differ. Mexico’s authoritarian regime occupied a centrist position, while Brazil’s was to the right on the ideological spectrum. Opposition parties in Mexico pressed from the right and the left, with the result that the legacy PRI ‘continues to act as a drag or drain on court strength, generating much weaker courts than does either the [leftist] PRD or the [rightist] PAN.’ In contrast, in Brazil opposition came from a coalition of centre, centre-left, and left parties, and ultimately these parties, more than right parties, exerted ‘upward pressure on court strength’ (Ingram 2016a, 294–95). In short, for systems in transition from authoritarianism, the ideological location of the authoritarian regime influences the sources of opposition and thereby influences the ideological orientation both of reformist initiatives and perhaps successive regimes. Reformist agendas in new democracies may also lead to idea sharing among legal elites in ways that drive both institutional developments in the courts and outcomes. As further work by Ingram illustrates, ‘the ideas of judges matter for core legal outcomes that concern a wide range of political and socio-legal scholarship, in Latin America and beyond’ (Ingram 2016b, 741). His network analysis of the diffusion of ideas among judges in the Mexican state of Michoacán explains an important mechanism through which judges can strengthen democracy and the rule of law. He further illustrates that the flow of ideas is not limited to legal ideas. His study emphasises the expansion of thinking about ideology beyond the conventional left-right spectrum endorsed by quantitative US Supreme Court scholars (Ingram 2016b, 746). Ingram shows convincingly that a core group of judges from a particular Mexican state ‘formed a close-knit group that promoted … reform,’ acting as agents of change through their promotion of judicial councils and criminal procedure reforms (Ingram 2016b, 748–49). While Ingram’s approach employs the general tools of network analysis, his focus particularly highlights the role that judges play in transferring and diffusing ideas that have concrete consequences for changing legal institutions (Ingram 2016b, 766). Lisa Hilbink’s pathbreaking work on the development of the Chilean courts provides a different and more distressing take on ideology that likewise goes beyond left and right. She asks, ‘Why in a country with such a long history of democratic practice and respect for legality, a country whose human rights movement was one of the strongest on the continent, did judges make no public and concerted effort to defend liberal and democratic principles and practices?’ (Hilbink 2008, 4). Rejecting a simple analysis based in realpolitik, her answer is that Chilean judges maintained an ideology of apoliticism that steered courts away from perceived political as opposed to legal interpretations of the constitution. This ideology, which she traces back to nineteenth-century legal positivism, became locked into the Chilean system in a self-reproducing way in the 1920s and persisted through the early 1990s (Hilbink 2008, 37).

The politics of legal ideology  43 Not until this ideology could be dislodged through domestic institutional reform and the rise of transnational judicial action did judges begin to protect and advance rights more seriously. Hilbink develops and advances these insights comparatively, using the contrasting cases of Chile and Spain to show that ‘judicial empowerment can be accurately explained, and potentially predicted, only through reference to the historical and ideational context in which institutional designers operate’ (Hilbink 2009, 782). In Spain after Franco, empowerment proceeded because ‘a new political class, strongly Europe-identified and determined to make a permanent break with the authoritarian past, worked in the shadow of a powerful military that posed a permanent and serious threat to democratic governments’ (Hilbink 2009, 784). In Chile, in contrast, reform took place in an environment that maintained the anti-political ideological commitments of the court system, limiting the scope for rights-based transformations. Rodrigo Nunes takes a similar approach but provides a more hopeful context. He identifies the roots of progressive judicial activism as ideational, studying the establishment of the activist Colombian Constitutional Court. Like Hilbink, he looks beyond structure, constitutional text, attitudes, and strategy to explain development, finding that the ideological orientation of the judges was critically important (Nunes 2010, 69–70). In contrast to Hilbink’s description of an ideology of judicial neutrality, formalism, and apolitical decision making, Nunes identifies the source of the push for involvement as ‘a group of judges who subscribed to the view that constitutions and bills of rights entail responsibilities for governments and that judges should employ their powers to facilitate the accomplishment of constitutional goals,’ a standpoint that he (following Stone-Sweet) identifies as new constitutionalism (Nunes 2010, 70–71). In Nunes’ reading, the key developmental moment arose from a neoliberally oriented president, Gaviria’s, efforts to establish a Constitutional Court that would strengthen the rule of law to heighten economic development with an eye toward globalisation (Nunes 2010, 73–78). While his appointees to the Court indeed proceeded to strengthen the judiciary and its scope of interventionist authority, their ideological commitment to rights facilitated the growth of progressive jurisprudence, especially regarding health (Nunes 2010, 78–82). This analysis counters alternative developmental accounts that rely on narrow readings of institutional interests to explain judicial empowerment. His analysis resonates somewhat with Bojan Bugaric’s discussion in this volume of the political and economic dilemmas that drove the development of the EU’s constitutional order to privilege capitalist interests. While he sees more flexibility in this neoliberally oriented order than the most pessimistic observers, he notes that populist challenges can effectively exploit the structure and make it difficult for the left to achieve an ideological shift (Bugaric 2023, 30–33).

5. CONCLUSION Ideology is an important phenomenon in constitutional politics. Ideologies around law itself, including the examples discussed above of legalism and rights ideologies, shape the ways that judges decide cases, but also the ways that legal institutions develop and are reproduced. These developments influence how judges, lawyers, legal scholars, activists, and the public think about constitutions and the rule of law. Ideological frames also constrain both the form and content of thinking about how social and political change can occur. These frames also influence perceptions of the law’s legitimacy.

44  Research handbook on the politics of constitutional law Particular ideologies also interact with constitutional law and politics, both achieving legitimation through their expression in legal standards and influencing the directions that legal standards develop. Legal battles also provide a site where ideological frameworks may be placed in contest with each other, leading to the strengthening and spreading of winning ideologies over those that fail. While this essay has used ideologies of white supremacy to illustrate this point, many other examples have attracted scholarly attention, including ideologies of labour and labour organisation, gender and other aspects of identity, and economic ideologies. When we consider comparative implications, we can develop stronger understandings of the actual work that ideology does as it shapes legal decisions and institutions and as legal institutions and agents channel it. Scholars have also illustrated that ideology contributes to how a constitutional order is established and contributes to the setting of parameters that determine how effectively judges will be able to secure and promote their own empowerment. These insights underline the importance of continuing to evaluate the role of ideas in legal and constitutional studies, and to attend carefully to legal discourse as the medium through which these ideas are expressed or enter legal frameworks. This in turn has implications for how we study legal and constitutional development and institutions, opening space for both positivist and interpretive approaches. The broad field of inquiry thus ultimately helps us to identify and understand the workings of constitutional law and policy in a much more comprehensive fashion.

REFERENCES Brandwein, Pamela. (2011). ‘Law and American Political Development,’ Annual Review of Law and Social Science 7: 187–216. Brandwein, Pamela. Rethinking the Judicial Settlement of Reconstruction (Cambridge University Press, 2011). Bugaric, Bojan. ‘The Neoliberal Bias of the EU Constitutional Order: A Critical Analysis’ in Dimitry Kochenov & Mark Tushnet (eds) Research Handbook on the Politics of Constitutional Law (Edward Elgar Press, 2023). Bumiller, Kristin. The Civil Rights Society: The Social Construction of Victims (Johns Hopkins University Press, 1992). Chilton, Adam & Mila Versteeg. ‘The Politics of Constitutional Rights’ in Dimitry Kochenov & Mark Tushnet (eds) Research Handbook on the Politics of Constitutional Law (Edward Elgar Press, 2023). Cichowski, Rachel. (2016). ‘The European Court of Human Rights, Amicus Curiae, and Violence Against Women,’ Law and Society Review 50(4): 890–919. Cover, Robert. (1985). ‘Violence and the Word,’ Yale Law Journal 95: 1600–29. Decker, Jefferson. The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (Oxford University Press, 2016). Engel, David. (1984). ‘The Oven Bird’s Song: Insiders, Outsiders, and Personal Injuries in an American Community,’ Law and Society Review 18(4): 551–82. Engel, David & Frank Munger. (1996). ‘Rights, Remembrance, and the Reconciliation of Difference,’ Law and Society Review 30(1): 7–54. Ewick, Patricia & Susan Silbey. The Common Place of Law: Stories from Everyday Life (University of Chicago Press, 1998). Fields, Barbara. ‘Ideology and Race in American History,’ in J. Morgan Kousser & James McPherson (eds) Region, Race, and Reconstruction: Essays in Honor of C. Vann Woodward (Oxford University Press, 1982) 143–77. Gliszczyńska-Grabias, Aleksandra. ‘The Politics of Constitutional Memory: Mnemonic Constitutionalism, Historical Memory, and Collective Identity in Poland, Germany and Russia’ in Dimitry Kochenov &

The politics of legal ideology  45 Mark Tushnet (eds) Research Handbook on the Politics of Constitutional Law (Edward Elgar Press, 2023). Greenhouse, Carol J. (1988). ‘Courting Difference: Issues of Interpretation and Comparison in the Study of Legal Ideologies,’ Law and Society Review 22(4): 687–708. Harrington, Christine & Sally Engle Merry. (1988). ‘Ideological Production: The Making of Community Mediation,’ Law and Society Review 22(4): 709–36. Hilbink, Lisa. Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile (Cambridge University Press, 2008). Hilbink, Lisa. (2009). ‘The Constituted Nature of Constituents’ Interests: Historical and Ideational Factors in Judicial Empowerment,’ Political Research Quarterly 62(4): 781–97. Hunt, Alan. (1985). ‘The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law,’ Law and Society Review 19(1): 11–38. Ingram, Matthew. Crafting Courts in New Democracies: The Politics of Subnational Judicial Reform in Brazil and Mexico (Cambridge University Press, 2016). Ingram, Matthew. (2016). ‘Networked Justice: Judges, the Diffusion of Ideas, and Legal Reform Movements in Mexico,’ Journal of Latin American Studies 48: 739–68. Lovell, George. (2012). ‘The Myth of the Myth of Rights,’ Studies in Law, Politics, and Society 59: 1–30. Lovell, George. This Is Not Civil Rights: Discovering Rights Talk in 1939 America. (University of Chicago Press, 2012). Lukina, Anna. ‘The Paradox of Evil Law’ in Dimitry Kochenov & Mark Tushnet (eds) Research Handbook on the Politics of Constitutional Law (Edward Elgar Press, 2023). McCann, Michael. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (University of Chicago Press, 1994). Mickonytė, Aistė & Benedikt Harzl. ‘Unrecognised Entities: Politics of Constitutionalism at the Fringes’ in Dimitry Kochenov & Mark Tushnet (eds) Research Handbook on the Politics of Constitutional Law (Edward Elgar Press, 2023). Novkov, Julie. Racial Union: Law, Intimacy, and the White State in Alabama, 1865–1954 (University of Michigan Press, 2008). Nunes, Rodrigo. (2010). ‘Ideational Origins of Progressive Judicial Activism: The Colombian Constitutional Court and the Right to Health,’ Latin American Politics and Society 52(3): 67–97. Pascoe, Peggy. What Comes Naturally: Miscegenation Law and the Making of Race in America (Oxford University Press, 2009). Scheingold, Stuart. The Politics of Rights: Lawyers, Public Policy, and Social Change, 2nd edition (University of Michigan Press, 2004). Schmidt, Vivien. (2008). ‘Discursive Institutionalism: The Explanatory Power of Ideas and Discourse,’ Annual Review of Political Science 11: 303–26. Shklar, Judith. Legalism: Law, Morals, and Political Trials, 2nd edition (Harvard University Press, 1986). Special Issue Editors. (1988). ‘From the Special Issue Editors,’ Law and Society Review 22(4): 629–36. Stohler, Stephan. Reconstructing Rights: Courts, Parties, and Equality Rights in India, South Africa, and the United States. (Cambridge University Press, 2019). Teles, Steven. The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton University Press, 2008). Tully, James. Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press, 1995). Turkel, Gerald. (1988). ‘The Public/Private Distinction: Approaches to the Critique of Legal Ideology,’ Law and Society Review 22(4): 801–23. Vanberg, Georg, Benjamin Broman & Christopher Ritter. ‘The Rise and Protection of Judicial Independence’ in Dimitry Kochenov & Mark Tushnet (eds) Research Handbook on the Politics of Constitutional Law (Edward Elgar Press, 2023). Woodward, Jennifer. (2015). ‘Making Rights Work: Legal Mobilization at the Agency Level,’ Law and Society Review 49(3): 691–723.

4. Constitutionalism and behavioural concepts Dariusz Adamski

1. INTRODUCTION Constitutionalism has a variety of shades. In a thin version it entails majority rule, judicial independence, political parties and formally more demanding (entrenched) protection of certain rights and structures for making decisions.1 Its thick versions put more emphasis on the counter-majoritarian role of constitutional arrangements. They are also more preoccupied with substantive goals of constitutions, among which well-being of society looms particularly large.2 In both versions – even if with different intensities – constitutionalism necessitates ‘discussions of normative conditions for the appropriate exercise of sovereign power’.3 Such discussions always imply relations between law, politics and philosophy. However, in the last several decades also behavioural sciences – economics,4 sociology, or psychology – have produced concepts valuable from the constitutional perspective, especially its thicker versions. Some of the concepts presume that individuals always act rationally. Others challenge this view, emphasising that decision-making shortcuts (heuristics) we deploy in our individual decisions are far from fool-proof, especially in complicated matters. Both, however, imply that – whether we act rationally as individuals or not – collective decisions may easily fail to be welfare improving. The very idea of welfare improving constitutional arrangements is contestable, which may explain why constitutionalists tend to replace it with a much more neutral concept of value pluralism.5 But the very appeal of constitutionalism stems from the fact that societies living in well-established constitutional democracies tend to be happier than others.6 By seeing how their constitutional arrangements fit into behavioural concepts one can arguably draw conclusions about comparative advantages of the constitutional arrangements conducive to what the Preamble to the US Constitution puts as ‘the general welfare, and … the blessings of liberty to ourselves and our posterity’. As a flipside, behavioural concepts are also arguably useful in grasping illusions, delusions and pitfalls accompanying democratisation and constitutionalisation. They help us understand why ‘the desire for limited political rule’, which is crucial for thicker versions of constitutionalism, and which ‘could only be satisfied in the form of a constitution under certain modern

Tushnet & Bugaric (2021). Barber (2018). 3 Tushnet (2012), 218. 4 Any economic output is a product of human behaviour. 5 See e.g. Galston (2011). 6 In the 2022 edition of the World Happiness Report the top ten happiest countries were, in descending order: Finland, Denmark, Iceland, Switzerland, Netherlands, Luxembourg, Sweden, Norway, Israel and New Zealand, while the first non-democratic country (Bahrajn) was ranked only twenty-first. See Helliwell et al. (2022). 1 2

46

Constitutionalism and behavioural concepts  47 conditions’,7 is not universally shared and implemented by all the world’s societies, regardless of high opportunity costs8 associated with a government of the few, by the few and for the few. In section 2 this chapter discusses the main concepts which imply that individually rational (welfare-improving) preferences do not necessarily translate into welfare-improving collective choices. Then, in section 3, it deals with psychological phenomena demonstrating that human rationality is seriously limited. Section 4 paints a general picture as to how the outcome of the research dealt with in section 2 and 3 may inform our understanding of certain key constitutional questions. The next two sections zoom in on two specific constitutional puzzles in otherwise mature and advanced constitutional systems: political campaign finance in the US (section 5) and the non-optimal currency union of the European Union (section 6). Section 7 concludes.

2.

SOCIALLY IRRATIONAL INDIVIDUALLY RATIONAL BEHAVIOUR

Rationality – in its basic sense – is an ability to make choices adequate to one’s goals. A collective choice rational from the perspective of a society pursues its well-being, as it may be presumed that this is what every society strives to achieve. Such assumptions are relevant from the constitutional perspective, for it may be argued that ‘the modern concept of constitutionalism developed in tandem with the transition from the irrational imposition of authority in feudal societies to the capitalist state and the rule of law’.9 A constitutional capitalist state, regardless of its many imperfections, was more rational than the previous political regimes because it was in a greater position to pursue legitimate objectives of the society. However, moulding political authority in certain norms which the government is unable to undo or bypass is irrational from the perspective of a ruler primarily interested in increasing their arbitrary political power. What, therefore, is a socially rational political evolution may be irrational from the perspective of a government, if it has different goals than the society at large. Economics has always been preoccupied with finding solutions to a similar question: how to make a (market) behaviour of individuals welfare-improving from the social point of view. At some point its inquiries penetrated constitutionalism as well. James Buchanan – who received The Nobel Prize in Economic Sciences in 1986 for his contribution to ‘the contractual and constitutional bases for the theory of economic and political decision-making’10 – was particularly preoccupied with aligning constitutionalism with economic concepts. Public choice theory,11

Grimm (2016), 45. Opportunity cost is a loss caused by engaging in a given activity compared to an alternative activity offering a higher return. 9 Tzanakopoulou (2018), xi, emphasis added. 10 The Royal Swedish Academy of Sciences, press release of 16 October 1986, https://​www​ .nobelprize​.org/​prizes/​economic​-sciences/​1986/​press​-release/​ accessed 13 June 2022. 11 As Buchanan described it, public choice ‘concentrates attention on analyses of alternative political choice structures and on behaviour within those structures. Its focus is on predictive models of political interactions, and is a preliminary but necessary stage in the more general constitutional inquiry’: Buchanan (1991), 137. For a comprehensive tack of the theory’s various aspects see Congleton, Grofman & Voigt (2019); Mueller (2003). 7 8

48  Research handbook on the politics of constitutional law developed in the wake of his influential book co-authored by Gordon Tullock in 1962,12 had become a bedrock for what was subsequently dubbed ‘constitutional economics’ focussing on the ‘choice among constraints’ performed within cooperative ‘reciprocal exchanges of liberties’.13 Scholars contributing to this theory have been keenly interested in the fact that individually rational decisions may easily become socially irrational. They have also tended to believe that only some rules of a superior status can remedy this fundamental social problem. Buchanan and those working in the field he pioneered shared key assumptions typical for classical (and neoclassical) economists. One is methodological individualism, according to which only individual preferences can be analysed scientifically. According to another, also drawn from classical economics, individuals are egoistic utility maximisers whose choices are inherently rational.14 They ‘maximize their utility from a stable set of preferences and accumulate an optimal amount of information and other inputs in a variety of markets’.15 According to public choice scholars, these assumptions as to how humans act lead to an entirely disillusioned depiction of law-making, including constitutional law: ‘the assumption of self-interest means that law is traded for political support, money, power, and other things that politicians and bureaucrats demand’.16 As will be more closely analysed in subsequent sections, all of these assumptions were questioned soon after they were made, undermining many formal models aimed at developing general concepts within the theory. Nonetheless, this has hardly influenced the explication of at least three perplexing phenomena in collective decision-making named and explained by public choice scholars: rational ignorance of voters, the collective action problem and rent-seeking. In 1957 Anthony Downs published a book in which he paid attention to the first of the phenomena.17 Called ‘rational ignorance’, it was used to explain that one should not expect decision-makers to commit time to educate themselves to make an informed decision if the associated efforts outweigh potential benefits the decision-maker could reasonably expect from the decision for themselves. This insight, sensed by many before Downs18 and forcefully emphasised after,19 is a powerful utility maximising constraint inherent in a democratic process. As an impact of a single vote on electoral outcome in a big group is nil (it is in particular extremely unlikely that general elections are decided by a single vote), an average voter should not be expected to devote time and effort to understanding policy complexities neces Buchanan & Tullock (1962). Buchanan (1990), 5. For a more recent take on the notion of constitution from the public choice perspective see e.g. Ginsburg (2017), 28. 14 ‘The central rationality precept states only that the individual choose more rather than less of goods, and less rather than more of bads. There is no requirement that rationality dictates choice in accordance with the individual's economic interest, as this might be measured by some outside observer of behavior’: Buchanan (1990), 14. 15 Becker (1976), 14. 16 Colombatto & Macey (1996), 929. 17 Downs (1957). For a more recent tack on the theory see Aranson (1990), and for a discussion of the theory’s limits see Baba (2000). 18 As Schumpeter wrote (quite cynically) in his most seminal book: ‘the typical citizen drops down to a lower level of mental performance as soon as he enters the political field. He argues and analyzes in a way which he would readily recognise as infantile within the sphere of his real interests. He becomes a primitive again. His thinking becomes associative and affective’: Schumpeter (1942, 2013), 262. 19 Caplan (2007). 12 13

Constitutionalism and behavioural concepts  49 sary to differentiate between political programmes enhancing collective wellbeing and welfare diminishing demagoguery.20 Within the methodological individualism used by Anthony Downs, this outcome is entirely rational. One should not expect voters to act differently. Rational ignorance relates to the collective action problem. As the work of Mancur Olson demonstrated in a particularly comprehensive manner,21 production of any public good entails both costs and benefits for members of the group. Acting rationally from their individual, egoistic perspectives, individuals will have a tendency to maximise the benefits and externalise the costs of this process, unless they are prevented from doing so, for instance by a regulatory intervention. This problem should intensify in larger groups, because ‘the most important single point about small groups … is that they may very well be able to provide themselves with a collective good simply because of the attraction of the collective good to the individual members … The larger a group is, the farther it will fall short of obtaining an optimal supply of any collective good, and the less likely that it will act to obtain even a minimum amount of such a good’.22 Members of small groups will find it easier to coordinate behaviour necessary to achieve their objectives simply because they should perceive the cost-benefit calculation as favouring their contribution to this good more than do members of bigger groups. In consequence, well-organised special interests are more successful in capturing gains produced by public policy processes. In its turn, the collective action problem facilitates rent-seeking,23 which can be defined as a ‘dissipation of resources in effort to obtain pure profit’ (what economists call ‘rent’). Resources devoted solely to shifting wealth from one person’s pocket to another’s are wasted from a social standpoint’.24 Rent is an unproductive gain achieved due to government restrictions on economic activity and its influence on the distribution of rewards earned by individual economic actors. It is a product of inefficient competition combined with a regulatory capture. As Congleton put it, ‘incentives for rent seeking are present whenever decisions of others influence personal outcomes or more broadly when resources can be used to affect distributional outcomes’.25 The collective action problem and rent-seeking have implications going far beyond the prime topics of the public choice theory. They have been both a cause and an outcome of extractive political institutions, which in turn entail fundamentally devastating consequences for the well-being of the society within which they develop. Acemoglu and Robinson (who do not identify themselves as public choice scholars) explain that ‘inclusive political institutions … have two dimensions: a broad distribution of political power and a strong (or effective or capable) state. When either condition fails – when power is narrowly concentrated or when

20 According to the public choice explanation, rational ignorance may not explain abstaining because ‘it is the satisfaction that comes from participation and expression, not the expectation that they will determine the outcome, that draws people to the polls and to the sports arena’: Lee (1988), 193. If subjective benefits of this symbolic act outweigh direct costs of polling, one should be expected to actually vote when acting rationally. 21 Olson (1965). For a particularly valuable more recent explanation see Congleton (2015). Reisman (1990) provides a valuable exposition of this theory in connection with the work of Anthony Downs. 22 Olson (1965), 36. 23 See e.g. Cheikbossian (2012). 24 Posner (2003), 202. For comprehensive introductions to the concept see e.g. Tullock (2003); Rowley, Tollison & Tullock (2013). 25 Congleton, Hillman & Konrad (2008), 1.

50  Research handbook on the politics of constitutional law there is a weak or ineffective state – we say there are extractive political institutions.’26 As they add, ‘inefficient economic institutions are chosen not just to create rents, but to solidify the political power of elites. It is this feature that makes it difficult to find efficient solutions to the problems of economic rents, and potentially generates much greater inefficiencies’.27 Preventing rents and similar transfer payments obtained through inappropriate relations with public office holders has ranked very high among constitutional goals. Guised as the objective of preventing corruption, it has been for instance identified by some to be the original purpose of the US Constitution.28 It is important from the perspective of this contribution, because nurturing extractive political institutions is rational from the perspective of the individuals involved in this process, even if damaging from the perspective of the society’s wellbeing.

3.

CONSTITUTIONALLY RELEVANT COGNITIVE LIMITATIONS

In making decisions humans heavily rely on heuristics, which serve as shortcuts reducing complexity.29 However, heuristics are also prone to systematic errors and various ‘anomalies’30 proving that human rationality is bounded.31 In consequence, due to cognitive limitations and emotional biases32 people find it very difficult to translate their subjective feelings of certainty – i.e. the feelings based on heuristics – into statements of probability. For the same reason our individual preferences happen to be intransitive, incomplete, and unstable over time. They are products of our (imperfect) intuitions rather than any cost-benefit computations. Some have called the emerging set of psychological findings about human cognitive limitations ‘behavioural decision theory’,33 though in fact these findings are disconnected from any developed axiomatic assumptions or limiting principles. As the relationships between them are rather loose, behavioural decision theory is a set of non-axiomatic explanations of how quirks in perception and memory identified by empirical research influence human judgment and decision making. For this very reason the findings of the behavioural decision theory have been called ‘antitheoretical’.34 Still, their composite nature allows for understanding individual psychological phenomena without a serious danger of arbitrary selection. Some anomalies – framing, compartmentalisation, loss aversion, present biases – are particularly interesting in the constitutional context. The phenomenon of framing – introduced by Tversky and Kahneman35 – is ‘the process of culling a few elements of perceived reality and assembling a narrative that highlights connections among them to promote a particular interpretation’, which ‘works to shape and alter

Acemoglu & Robinson (2019), 16, emphasis in the original version. Ibid. 28 Teachout (2013); Teachout (2014). 29 Artinger, Petersen, Gigerenzer & Weibler (2015). 30 Tversky & Kahneman (1974); Kahneman, Knetsch & Thaler (1991). 31 Simon (1997). See also Mallard (2015); Mallard (2020); Sanjit & Sunstein (2022). 32 Blumenthal (2007). 33 Slovic, Fischhoff & Lichtenstein (1977), 1. For a more recent, comprehensive account see Takemura (2021). 34 Posner (1997), 1552. 35 Tversky & Kahneman (1981). 26 27

Constitutionalism and behavioural concepts  51 audience members’ interpretations and preferences through priming. That is, frames introduce or raise the salience or apparent importance of certain ideas, activating schemas that encourage target audiences to think, feel, and decide in a particular way’.36 In fact, framing is a universal mechanism inherently associated with communication and social relations. Constructing frames allows for defining – selecting, categorising, naming – the situations in which one finds oneself, as well as making sense by building argumentative narratives.37 Scientists use ‘frame analysis’ as ‘a methodology for problem setting’, which in turn is necessary to find solutions to problems.38 As adopting and enforcing law (including constitutional law) and policymaking may be perceived as a problem solving exercise, framing plays a crucial role in it as well. But framing may also easily become a manipulation tactic, biasing emotions, fooling cognition, and leading to socially irrational behaviour. It is an extremely powerful cognitive shortcut not only because it is one of the key mechanisms we use to understand reality, but also because it dovetails with other psychological mechanisms, like compartmentalisation. The latter can be defined ‘as a defense mechanism that allows one to hold conflicting attitudes, ideas, or behavior without conscious feelings of confusion, guilt, shame, or anxiety. This unconscious process occurs when the ego segregates segments of essentially conflictual psychological contents into separate compartments or components. … Examples might include someone who preaches against pornography in the public sphere but has a large collection of erotic material at home; or the public humanitarian who abuses his children. Such a person may switch between different states of mind when triggered (internally or externally), and then flip back to their usual identity after the particular state of mind has been gratified in some way.’39 While the above examples of compartmentalisation are both drastic and essentially irrelevant from the constitutional perspective, many decision-making flaws which constitutionalism has been trying to remedy find their roots in this very phenomenon. Compartmentalisation helps humans believe in ‘alternative facts’ even when proofs of their inveracity have been exposed to them. It allows corrupt public officials to accept bribes and consider themselves as doing a good job for their institution or country. On the other hand, totalitarian, seriously oppressive political systems cannot collapse without dissidents, and dissidence of people dreaming of a better life may require compartmentalisation. Challenging a corrupt, non-democratic political regime routinely entails serious individual risks and costs of prosecution for political reasons. Being a dissident in such a regime conflicts with one’s aspiration to have a good life, if no sign presages a collapse of the regime. Due to compartmentalisation individuals can overcome the impulse of their self-interest and become driven by conflicting altruistic, often heroic, motivations. For instance, members of the so-called ‘Heavenly unit of the hundred men’, who died on the Kiev’s Majdan square in 2014 to buttress the democratic character of this country’s constitutional system, proved in very dramatic circumstances that compartmentalisation could improve welfare of the society at large, even when the behaviour of individuals leading to this outcome conflicts with their individual aspiration to have a good, peaceful life.

38 39 36 37

Entman (2007), 164. Goffman (1974). Rein & Schön (1977). See also Schön & Rein (1994). Békés, Ferstenberg & Perry (2000), citations omitted.

52  Research handbook on the politics of constitutional law In its turn, behavioural prospect theory40 has emphasised that we are loss averse: we value a potential loss higher than a comparable potential gain. In the economic field this phenomenon ‘explains people’s reluctance to bet on a fair coin for equal stakes: The attractiveness of the possible gain is not nearly sufficient to compensate for the aversiveness of the possible loss’.41 Loss-aversion is related to risk-aversion, because a loss is a materialised risk. Furthermore, it goes hand in hand with two other psychological phenomena. One is the ‘endowment effect’, which makes us seriously (over)value what we own compared to the objects of exactly the same objective value out of our possession42 and the other is the ‘status quo bias’ – a general preference for the current state of affairs.43 Due to loss aversion, the endowment effect, and the status quo bias our worldviews and allegiances (including party preferences) do not change easily and we appreciate positive effects they produce without counting their practical advantages and disadvantages. Instinctively we cherish them simply because they are ‘ours’. The cognitive biases can also, at least partly, explain why visibly deficient political systems persist and reforming them is never easy. Even if a political regime makes many of its citizens dissatisfied, the biases always diminish an appetite for change even against overwhelming evidence of political obsolesce and dysfunctionality. On a more positive note, in mature democratic systems the very same biases make welfare corroding constitutional changes less likely even if an economic or a social crisis has undermined the substantive legitimacy of the current constitutional setup. Risk-aversion is also partly responsible for procrastination of decision-makers and their muddle-through strategies. On the other hand, the very same cognitive biases can also block decision-makers from irresponsible behaviour, if only social norms against it are sufficiently strong, if free media prevail, and if basic accountability mechanisms are in place. Other cognitive limitations influence decision-makers in charge of public policies in particular. In Administrative Behavior, published shortly after World War II, Herbert Simon, a political scientist who subsequently received a Nobel Prize in economics, challenged the view, prevailing at that time, that bureaucracies resemble military structures in which the behaviour of individual officials is driven by top-down management rationality.44 Simon emphasised that human attentiveness and motivation to search for complete answers are limited. In other words – and unsurprisingly – officials, too, are rationally ignorant and use heuristics in their decisions. This finding may seem unobvious. One vote in general elections is statistically insignificant and an average voter knows very little about public policies when she casts her vote. Government officials are in a different position. Making public policies and enforcing them is their profession, while the quality of these actions should influence their careers in the hierarchical structure of public administration. In addition, bureaucratic specialisation helps cope with complex policy areas. But, as Simon noticed pointedly, decision-makers put as much effort into a decision-making process as necessary to come up with an acceptable solution to the policy problem they face, while the solution acceptability depends on the requirements of their superiors, rather than objective necessities of an optimum public policy. In other

42 43 44 40 41

Kahneman & Tversky (1979). See also Wakker (2010). Kahneman & Tversky (1984), 342. Thaler (1980). Samuelson & Zeckhauser (1988). Simon (1947).

Constitutionalism and behavioural concepts  53 words, decision-makers are ‘satisficers’, who accept good enough outcomes determined by the cost-benefit relationship of the decision-making process, in order to increase the payoffs of efficiency and satisfaction. Other research has demonstrated that what politicians in charge of public policies consider an optimum outcome of decision-making may be of low quality, due to the human tendency to overvalue immediate rewards and undervalue long-term benefits (the present bias).45 This time-inconsistency of perception has been named policy-, democratic-, or political myopia by scholars.46 It makes welfare maximisation difficult simply because it discourages decision-makers from pursuing policies (reforms) imposing costs on the society in the short term, while improving its wellbeing in the longer term. As hardships are clear to see and uncertainties crucial for the present bias make longer term consequences less discernible, the ultimate beneficiaries of the reforms will not be able to assess them properly. When constituents succumb to the present bias, they would not reward policymakers for far-seeing actions, nurturing political myopia.

4.

GENERAL CONSTITUTIONAL IMPLICATIONS

Soon after public choice theory (and the related interest group theory)47 gained salience in the 1970s, scholars started questioning their perception of political agents as narrowly egocentric welfare maximisers.48 Their misgivings went hand in hand with psychological findings discussed in the previous section,49 which undermined some of the most fundamental assumptions of the mainstream economics about how individuals make their decisions. They upset expected utility theory in particular, which ‘states that the decision maker … chooses between risky or uncertain prospects by comparing their expected utility values, that is, the weighted sums obtained by adding the utility values of outcomes multiplied by their respective probabilities.’50 Human brains do not work this way, as we take cognitive shortcuts to simplify decision-making. In consequence, our decisions may be very far off from what expected utility theory (or other theories presuming individual rationality) imply. By revealing that humans tend to be pro-social and altruistic,51 developments in psychological research have also overturned other tenets of the economic theories fundamental for public choice: that we are inescapably individualistic and selfish when making decisions. None of this, however, could thwart the public choice findings that individual preferences, even when rational, do not necessarily lead to welfare-improving collective decisions. In fact our cognitive limitations only exacerbate systemic consequences of rational ignorance, the collective action problem, or rent-seeking. And if a collective irrationality may occur when 45 For an introduction of the concept in the economic understanding see e.g. O’Donoghue & Rabin (2015). 46 Bonfiglioli & Gancia (2013); Nair & Howlett (2017); Boston (2021). 47 The interest group theory sees group struggles as the main factor shaping the behaviour of the executive and legislative branches. For a comprehensive explanation see McFarland (2010). 48 Shaviro (1990) and the literature cited therein; Green & Shapiro (1994). 49 Such a discontent spurred a new turn in law scholarship towards behavioural science at the turn of the century: Langevoort (1998); Sunstein (1999); Rachlinski (1999); Korobkin & Ulen (2000). 50 Davis & Hands (1998), 171. 51 Bierhoff (2002).

54  Research handbook on the politics of constitutional law individuals act rationally, it becomes all the more significant when our preferences are individually irrational. Constitutionalism has always been confronted with the question of how to manage these problems. Ameliorating individually rational behaviour leading to welfare diminishing collective decisions and addressing bounded rationality have been – implicitly or explicitly – among the main constitutional goals. Madison was driving precisely this point home, when he argued that ‘as long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves’.52 And he foresaw the developments of behavioural sciences when emphasising that ‘the latent causes of faction are thus sown in the nature of man’.53 Public choice, with its understanding of the collective action problem and its consequences – from rent-seeking to regulatory capture and the tragedy of the commons – has been particularly attractive for US scholars, simply because ‘[t]he problem of faction has been a central concern of constitutional law and theory since the time of the American Revolution.’54 A profound understanding of the human behaviour clearly animated the Founding Fathers of the US Constitution, who put before this document ‘the staggering task of devising rational government to be run by and for passion-ridden men’.55 But even where the drafters of constitutional charters have been intuitively preoccupied with the concepts discussed earlier, they nonetheless encounter serious objective problems in overcoming them with institutional solutions. It is first and foremost because the main democratic mechanism – political accountability of the government towards the governed – is imperfect from the behavioural perspective.56 Furthermore, the main constitutional remedy to this problem – judicial review – is also far from fool-proof. Resolving a dispute by a group of independent judges deciding after a hearing intended to disclose all the evidence and arguments broadens the scope for neutral, rational decisions of judges and keeps the strategies of the parties aimed at exploiting their cognitive limitations in check. Yet the conceptions of justice, equality, constitutional rights and values espoused by judges will always vary, despite the efforts of philosophers of law to pin these elusive notions down with a compelling theory. This is because each judge, just like every human being, processes information through different experiences and cognitive biases, which leads to differences in assessment.57 Writing in the early 1880s, Oliver Wendell Holmes made this point when he wrote: ‘The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed’.58 Madison (1787). Ibid. 54 Sunstein (1985), 29. 55 Smith (1960). 56 For overviews of the problems involved see Moncrieffe (1998); Przeworski, Stokes & Manin (1999); Bidner & Francois (2013). 57 Arce, Farina, Novo & Seijo (2001); Guthrie, Rachlinski & Andrew Wistrich (2022); Guthrie, Rachlinski & Wistrich (2007). 58 Holmes (1881, 2004), 1. 52 53

Constitutionalism and behavioural concepts  55 In increasingly polarised societies these phenomena lead to unprecedented critiques of the branch once considered the most reliable guardian of constitutional ideals.59 Public choice scholars may be surprised with it, as the danger they were particularly preoccupied with – of capturing both the legislative and executive branches by special interests – provoked their arguments in favour of more intensive judicial review.60 The idea that judges too suffer from cognitive limitations undermines this conclusion, in fact underpinning an opposite idea, of judicial deference.61 What is more important, the behavioural theories reveal a yawning gap in the very core of the separation of powers concept, with neither political accountability nor judicial review in a position to really avoid behavioural pitfalls undermining the constitutional objective of ‘promoting the general welfare’ (to quote the Preamble to the US Constitution again). The phenomena discussed in the previous sections are universal, in the sense that they are independent of social norms, traditions, and education. Different contexts seem to determine our behaviour differently, though, also in constitutionally relevant aspects, leading to the conclusion that constitutional arrangements are always autochthonous.62 Based on empirical evidence it has been argued, for instance, that local communities in societies with a long democratic tradition may be largely immune to political myopia.63 In other words, they are less driven by their present bias in collective decisions, which in turn motivates their representatives to take responsible, far-seeing decisions. And as the decisions improve the shared foundations of the community and increase trust in collective decision-making, it may be expected that a positive relationship between the democratic tradition and its outcomes would be mutually-reinforcing (stimulated further by loss aversion, the endowment effect and the status quo bias). Behavioural concepts are also useful in understanding the phenomenon of populism. A sense of material and ideational alienation and deprivation of those who find themselves ‘strangers in their own land’64 and who populate ‘the places that don’t matter’65 is an anathema from the perspective of the endowment effect and loss-aversion of the less well-off social groups. As they also tend to be less educated, rational ignorance can explain why many of their members do not realise at all that the overly simplistic policy platforms of populist political entrepreneurs are either entirely unrealistic or unable to increase collective welfare. Thanks to compartmentalisation the voters holding democratic beliefs may find themselves supporting leaders whose political programmes quite openly undermine democracy. Populism, however, may also be a rational reaction of a broad group against policies favouring smaller groups due to the collective action problem. It is because ‘[w]hen seeking power,

59 Kaplan (2018). This criticism is not new, though. In 1912 another author conveyed an even fiercer critique of the US Supreme Court: ‘So long as our judicial opinions are formed by the mental processes of the intellectual bankrupts these will only be crude justifications of predispositions acquired through personal or class interests and sympathy, ‘moral’ superstitions, or whim and caprice’: Schroeder (1912), 26–27. 60 Elhauge (1991). In the US context this argument has been presented as supporting a robust rationality review. For recent accounts on the latter see Gersen & Vermeule (20016); Ponomarenko (2018). 61 Lawson & Seidman (2019); Zglinski (2020); Mendes (2019); Zhu (2019). 62 Tushnet (2012). 63 Cronert & Nyman (2021). 64 Hochschild (2018). 65 Rodríguez-Pose (2018).

56  Research handbook on the politics of constitutional law populists politicize issues, and point to problems that need to be addressed such as inequalities, the loss of national sovereignty to globalization, or the rule of unresponsive political elites’.66 If collective actions of the well-organised, better-off groups produce inequalities and precarity, if they undermine the traditional values cherished by the majority and if they hamper inclusive public institutions, the less well-off may easily find themselves locked up in a system precluding social mobility and ideational stability. Populism may then be a rational phenomenon aimed at reforming liberal democracy towards a more inclusive and resilient setup resistant to the collective action problem and rent-seeking by the better-off groups. In other words, the populist pressure may in fact be welfare improving, if it makes the political system less prone to the collective action problem, while pro-democratic heuristics of the society (shaped by tradition and education) are sufficiently strong. Otherwise, however, when political myopia prevails, populism becomes a vehicle for welfare diminishing processes. Especially in poorly educated societies, where no deep-rooted democratic tradition shapes heuristics of the society, framing and other cognitive limitations facilitate democratic backsliding, rendering the consequences of rational ignorance more acute. In such circumstances formal checks and balances, even when they apply, do not have serious chances to advert constitutional corrosion. Acemoglu and Robinson offered an explanation, when they argued that ‘there is a natural reason to expect changes in the distribution of de facto political power to partially or even entirely offset changes in de jure power brought about by reforms in specific political institutions.’67 In an environment conducive to democratic backsliding political institutions improving welfare in other countries may become corrosive, bringing about economic hardship and popular disappointment. This in turn is often used by well-organised groups to consolidate power and ultimately dismantle constitutional checks and balances altogether. State propaganda is extremely useful in facilitating it, nourishing cognitive biases and their results (prejudices or social conformity), but also preventing the population at large from discerning the increasingly extractive nature of public institutions and the constitutional scheme in place. But even in political systems where social norms, tradition, and educational systems are all attuned to pursuing constitutional values and the institutional setup is calibrated to social utility, behavioural concepts reveal certain flaws in collective decision-making with serious constitutional implications. Two very different examples, one stemming from the US and the other from the EU, will serve as illustrations.

5.

EXAMPLE NO. 1: POLITICAL CAMPAIGN FINANCE IN THE U.S.

In societies where private political campaign finance is legally restrained and the enforcement of the corresponding laws remains effective, the influence of private stakeholders on constitutional institutions is curbed without serious debates68 and the issue may disappear from the

De la Torre (2019), i. Acemoglu & Robinson (2008), 268. 68 For comparative studies of political campaign finance regulation see Norris & van Es (2016); Gunlicks (2019). 66 67

Constitutionalism and behavioural concepts  57 constitutional radar.69 But where, as in the US, the norms are more permissive, political campaign finance gains constitutional salience,70 especially when the economy is capable of generating serious resources to be mobilised for this purpose. Arguably the behavioural sciences offer important lessons as to how the entailing constitutional problems should be approached. While already the 1907 Tillman Act prohibited banks and corporations from contributing money to federal campaigns, the foundations of the contemporary US federal campaign finance law were laid down by the 1971 Federal Election Campaign Act (FECA). On the one hand, it introduced an obligation of reporting all campaign contributions and expenditures. On the other, it authorised political action committees (PACs – separate segregated funds used by corporations and trade unions) to solicit voluntary contributions. In 1974, following the Watergate scandal, statutory standards were further refined. Among others, contribution and expenditure limits were tightened. However, soon after the Supreme Court found the expenditure limits unconstitutional. In Buckley v. Valeo it argued that limits on campaign expenditure, which were to apply to individuals, corporations, and unions, ‘fail[ed] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process’ and ‘it is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression “at the core of our electoral process and of the First Amendment freedoms”.’71 With Buckley v. Valeo, spending money to support a candidate or a political party became a form of corporate speech protected by the First Amendment to the US Constitution.72 A few decades later, in Citizens United v. FEC,73 the Supreme Court reinforced the thrust of Buckley v. Valeo, endorsing unlimited spending on elections by corpor­a­tions and other outside groups. The dispute, decided in 2010, was sparked by a documentary critical of the then-Senator Hillary Clinton, which a non-profit corporation planned to make available less than 30 days prior to primary elections. Such a plan conflicted with the Bipartisan Campaign Reform Act of 2002 (also known as McCain-Feingold Act), which prohibited electioneering communications, defined as ‘broadcast ads referring to clearly identified federal candidates within 60 days of a general election or 30 days of a primary election or caucus’74 and backed the prohibition with civil and criminal penalties. The (marginal) majority in the Supreme Court, which tipped the balance in Citizens United v. FEC, found that the Congress violated the First Amendment when it established such a prohibition. It noted that ‘[b]ecause speech is an essential mechanism of democracy – it is the means to hold officials accountable to the people – political speech must prevail against laws that would suppress it by design or inadvertence.’ This very broad approach to what ‘political speech’ means in the context of political campaign finance was based on the assumption that: ‘we now conclude that independent expenditures, including those made by corporations, do Other manifestations of the collective action problem, like regulatory capture by means other than political campaign finance or the tragedy of the commons, may still persist, though. 70 For introductions to the debate over campaign finance regulation in the US see Lessig(2011); Mutch, (2014); Gierzynski (2018); Fowler, Franz & Ridout (2021); Dawood (2015); Stephanopoulos (2015). 71 Buckley v. Valeo, 424 US 1 (1976). 72 On the constitutional protection or corporate speech by US constitutional law see Coates (2015). 73 Citizens United v. Federal Election Commission, 558 US 310 (2010). 74 2 USC 441b. 69

58  Research handbook on the politics of constitutional law not give rise to corruption or the appearance of corruption … The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt’. The same approach to political campaign finance was endorsed in 2014, when the Supreme Court ruled, in McCutcheon v. FEC,75 that yet another legislative restraint on political campaign finance – biennial aggregate contribution limits on the total amount a donor could contribute to a federal candidate in a two-year election cycle, introduced by the Federal Campaign Act of 1971 and refined by the Bipartisan Campaign Reform Act76 – were also unconstitutional. As the arguably most important conceptual foundation of such a decision, Chief Justice Roberts stated in the opinion of (again very thin, 5–4) majority, that: ‘spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties’. In other words – and in line with Citizens United v. FEC – as long as federal decision-makers are not actually bribed, but receive money increasing their electoral chances or pursuing their political or ideological platform, and as they spend the money in a transparent manner, the flow of private funds into politics meets the requirements of the US Constitution. This approach may be explained by two main reasons. The first is pure logic. Both the traditional media outlets of the printed press and television channels – the undeniable objects of protection under the First Amendment – are contemporarily organised as profit-making corporations. Yet technology allows corporate offshoots of businesses operating on other markets to perform a functionally very similar role, while different treatment of functionally similar activities is always dubious from the legal perspective, all the more so if it deals with constitutionally most paradigmatic rights and values. The second argument in favour of political campaign finance in the United States after Buckley v. Valeo, Citizens United v. FEC and McCutcheon v. FEC is the pluralist conception of politics and democracy prevailing in American constitutionalism77 and the concept of a welfare improving marketplace of ideas.78 The behavioural sciences teach us, though, that this second argument is conceptually flawed, with far-reaching implications for the first one as well. The marketplace of ideas is an ideal concept ignoring the findings discussed in the previous sections.79 Corporate funding of political campaigns is by default mobilised to pursue self-interest of the sponsor interested in increasing its reputability and profits.80 This motivation may easily make the sponsor McCutcheon v FEC, 572 US 185 (2014). When the case was decided, an individual could donate no more than $123,000 total to federal candidates in a two-year election cycle. 77 Championed by Robert Dahl in particular. See Dahl (1961); Dahl (1967); Dahl (1989). 78 See e.g. Hopkins (1996). 79 Ingber (1984); Brietzk (1996); Kim & de Zúñiga (2021). 80 Some explained legislative efforts to regulate political campaign finance since the 1907 Tillman Act in terms of agency costs within firms. ‘[C]orporate political contributions were also understood to be corrupt because they amounted to a misuse of “other people’s money”: company executives were opportunistically misappropriating the company owners’ money to purchase legislation benefitting the executives themselves. Corporate contributions were widely portrayed in the public discourse as designed not to help companies’ bottom lines nor to maximize profits for company owners, but to secure managerial autonomy over firm assets and to immunize executives from the oversight of owners’: Winkler (2003), 873. While versions of the collective action problem and rent-seeking in which corporate managers’ interests are pitched against corporate shareholder’s welfare can indeed be a fallout of unregulated polit75 76

Constitutionalism and behavioural concepts  59 a rent-seeker. Therefore unconstrained political campaign finance facilitates the collective action problem and makes it particularly hard to eradicate. Framing, compartmentalisation, and other cognitive biases are all useful tools in the hands of lobbyists to shape both the public opinion and policy stances of decision-makers if only sufficient funding is engaged to produce appropriately professional and persuasive information campaign. Due to their rational ignorance, those who are to bear the costs of rent-seeking or negative externalities produced by lobbying are easily manipulated, as they do not possess information necessary to take an informed stand, while their heuristics can be fooled by exploiting cognitive biases. Furthermore, decision-makers, especially the elected ones, are heavily motivated to ignore long-term consequences of their decisions granting advantages to rent-seekers and protecting originators of negative externalities. They too are exposed to effects of cognitive biases – framing, compartmentalisation and loss-aversion in particular – as well as to political myopia. All in all, behavioural concepts unequivocally and profoundly undermine the conceptual premises on which the current US approach to political campaign finance has been built. They suggest that, failing to grasp the actual way individuals think and groups strive to pursue their goals, the interpretation pursued by the majorities of the US Supreme Court in the cases involving political campaign finance may lead to results irreconcilable with the interests of the society at large.

6.

EXAMPLE NO. 2: NON-OPTIMAL EUROPEAN CURRENCY UNION

The European Union – an international organisation – is a very specific object of constitutional inquiry.81 Nonetheless, it has its constitutional charter, which – while policy-oriented82 – implements the bulk of typical constitutional mechanisms and structures – like specific checks and balances, judicial independence, constitutionally protected fundamental rights – aimed to pursue ‘the well-being of its peoples’.83 The EU’s primary law is peculiar by specifying at the constitutional level the objectives and the mechanics of the Economic and Monetary Union (EMU). The countries of the European Union meeting the so-called convergence criteria84 can join the euro area. By doing so they transfer monetary powers to the supranational level, where they are exercised by the European ical campaign finance, in other instances the interests of both the shareholders and corporate managers can be perfectly aligned and pitched against those of the society. This latter setup is not only a form of ‘political corruption’ enabled by unencumbered political campaign finance, but also one more devastating constitutionally. 81 As Walker put it aptly, the EU ‘lacks those traditionally state-defining features of exclusive final authority, original collective agency, and primary political identity that provide the fullest constitutional model of interlocking legal, political, and socio-cultural frames available to us. In terms dictated by the statist template, the EU has operated at the ‘thinner’ end of the spectrum of constitutional development’: Walker (2012), 1192. 82 Couto & Arantes (2021), 496. 83 Article 3(1) Treaty on the European Union (TEU) states: ‘The Union's aim is to promote peace, its values and the well-being of its peoples’. 84 They refer to price stability, sustainability of the government financial position, long-term interest-rate and participation in the exchange-rate mechanism of the European Monetary System: Article 140(1) Treaty on the Functioning of the European Union (TFEU).

60  Research handbook on the politics of constitutional law Central Bank (ECB). The euro-area countries are also expected to coordinate their fiscal policies and macroeconomic policies along the lines established by the Stability and Growth Pact of 1997 and remoulded during the sovereign debt crisis into the European Semester.85 However, as the convergence criteria have proven rather easy to meet for any determined national government, while the fiscal policy coordination has never been particularly effective,86 the EMU has always been far from an ideal optimum currency area.87 For this reason the emergence of the EMU can be characterised as a victory of politics over economics. As Bordo and Jonung put it four years after the exchange rates of the first 11 currencies were locked to each other at irrevocable rates, ‘the economics profession has in general been sceptical of a European monetary union. Economists have pointed to a large number of pitfalls on the road to a common European currency. Indeed, the road so far has been a rocky one’.88 Economists – also using public choice theory89 – have argued90 that a unified monetary policy, on the one hand, and only loosely coordinated fiscal and macroeconomic policies, on the other, would be conducive to crises undermining European solidarity. Because monetary policy serves as an important instrument of managing economic crises, elevating it to the supranational level without establishing alternative shock absorption mechanisms at the same level would make asymmetric (country-specific) economic shocks more difficult and more costly to manage. The sovereign debt crisis of 2010–12 proved the critics right. While it did not lead to a breakup of the single currency system, the crisis hardened and reinforced disparities between economically resilient north and the vulnerable south of the euro area. This process is particularly visible in the trajectories of public debt. Controlling public finances has been relatively easy for the industrialised north. The south, though, has found the ratio of public debt towards the GDP deteriorating.91 This problem has faced no serious structural policy response so far. Instead, programmes of large scale government bond purchases introduced by the ECB since 201592 – while performed for strictly monetary purposes – have had the side effect of elimi-

For a stylised model explaining the economic role of the Stability and Growth Pact for the countries forming the eurozone see e.g. Beetsma & Uhlig (1999); Zeitlin & Verdun (2018). 86 See e.g. De Haan, Berger & Jansen (2004); Morris, Ongena & Schuknecht (2006). 87 Mongelli (2002) provides meticulous analysis of the optimum currency area theory in the context of the European monetary integration. 88 Bordo & Jonung (2003), 2. 89 Martin-Das (2002). 90 For instance Milton Friedman argued in 1997 that the Eurozone’s Maastricht design ‘would exacerbate political tensions by converting divergent shocks that could have been readily accommodated by exchange rate changes into divisive political issues … Monetary unity imposed under unfavorable conditions will prove a barrier to the achievement of political unity.’: Friedman (1977). For a similar, but more recent and more comprehensive, argument see Stiglitz (2016). 91 Between 2015, when the European Central Bank triggered a programme of large-scale government bond purchases, and the end of 2021 public debt increased significantly in France (from 95.6% in to 112.9%), Spain (from 103.3% to 118.4%), Italy (from 135.3% to 150.8%) and Greece (from 176.7% to 193.3%). By comparison, Germany reduced public debt in the same period, from a much lower initial level (from 71.9% in 2015 to 69.3% in 2021), while the Netherlands did so even more forcefully, from an even lower level (from 64.6% in 2015 to 52.1% in 2021): Eurostat, General government gross debt – annual data [GOV_10DD_EDPT1]. 92 Public Sector Purchase Programme (PSPP) and Pandemic Emergency Purchase Programme (PEPP). 85

Constitutionalism and behavioural concepts  61 nating high amounts of public debt from the market.93 As one consequence, they have made it easier for sovereigns to service public debt. As another, they have reinforced the position of the ECB in the European institutional setup. But they also expose the central bank to default risks, associated with structurally imbalanced economies prone to asymmetric shocks, which only national governments could control and remedy. Constitutionalism tends to lose central banking from its radar. The reason may be that to constitutionalists all these issues – and central banking more generally – can be just one among many economic policies to be decided by experts, with no bearing whatsoever on the main constitutional constructs, such as the division of powers or constitutional rights and freedoms. The fact that central banks as we know them emerged in the twentieth century only, long after canons of constitutionalism have been developed, makes this point even more compelling. But in the case of the EU this depiction is inaccurate. Its primary (constitutional) law determines the mandate of the ECB94 and ranks it among the few main authorities (institutions) of this organisation.95 The setup of the euro area – according to which a centralised, supranational monetary policy is coupled with complementary economic policies retained almost entirely at the national level – is also a constitutional arrangement. It has had far-reaching implications for the distribution of power between different levels of EU governance, as well as for economic well-being of European societies. What, then, do behavioural concepts imply in the context of this fundamental constitutional arrangement? Political myopia and satisfication help explain why the EMU was born as an incomplete monetary system prone to destabilising crises. At the time when the crucial decisions were made – in the late 1980s and early 1990s – no more economically perfect constitutional arrangement was possible, and an imperfect step towards more economic integration might have seemed better than no step at all.96 The single currency soon triggered endowment effects and the status quo bias, due to its symbolic connotations and the perception of stability associated with a supranational currency.97 In their turn, the concepts of risk- and loss-aversion are helpful in explaining why redenomination (returning to national currencies) was not a seriously contemplated option during the sovereign debt crisis. The role of these phenomena, as well as the significance of framing in this context, can be best epitomised by the famous – and

93 Totalling euro 3,9 trillion in spring 2022, comparable to the combined GDP of Italy (€1.8 trillion) and Spain (€1.2 trillion) in 2021: Holdings of debt securities issued by euro area General Government reported by Eurosystem in the euro area (stock), ECB data. 94 Article 119(2) TFEU. 95 Article 13(1) TEU. 96 Dyson & Featherstone (1999). 97 Twice a year, in Standard Eurobarometer, Europeans are asked about their approach to the ‘European economic and monetary union with one single currency, the euro’. Public support for the euro is constantly very high in the euro area countries. In early 2022 the share respondents in the euro area supporting the statement was 77%, with only 16% against. By comparison, in the non-euro area countries (Bulgaria, Croatia, Czechia, Denmark, Hungary, Poland, Romania, Sweden) the attitudes are different, with 42% having positive connotations with the euro and 50% with a negative attitude: European Commission, Public opinion in the European Union. Standard Eurobarometer 96. Winter 2021–2022, (2022) Annex T.75.

62  Research handbook on the politics of constitutional law highly questionable98 – expression of Angela Merkel: ‘The euro is the guarantor of a unified Europe. … If the euro collapses, Europe collapses.’99 On the other hand, national politicians, who ultimately define the path of the European integration, have always jealously protected their sway over fiscal and economic policies, even if it could be expected that a fully-fledged economic federation of the euro-area would be a (much) more efficient – and hence welfare improving – constitutional arrangement than an incomplete EMU. It is important in this context that nationalism, the main obstacle to an euro-area federation, is an effect of cognitive and emotional biases shaped by the society since childhood. National identities entail very strong endowment effects, easily exploitable with a bit of framing by Eurosceptic political forces seeking electoral gains. Their political platform falls on a particularly fertile ground among poorer and worse educated social strata, who can benefit from the European integration (including monetary integration) less than the more mobile, better educated groups. The worse off are therefore more susceptible to nationalistic populism surfacing especially during economic travails. The fact that even among the better educated groups rational ignorance is strong when it comes to such complex matters as the interaction between monetary, fiscal and macroeconomic policies, has also played in the hands of the political forces opposing European federation. The citizens using euro in their lives simply do not know that the underlying monetary policy cannot operate properly as long as other crucial economic policies are retained at the national level. All this has prevented national leaders from elevating substantially more fiscal and macroeconomic powers to the supranational level. Acting rationally from the perspective of the re-election goal, they have acted irrationally from the perspective of the wellbeing of their societies. Contrary to the hopes of the framers of the EMU, a constitutional stalemate has occurred, in which neither a downward transfer of monetary powers back to the national level, nor an upward transfer of economic powers to the supranational (federal) level have been possible. Instead, political myopia has prevailed in determining policy responses to the occurring crises.100 The lack of remedies designed and enforced by the proper (political) actors has forced the ECB to manage the consequences of the policy vacuum and the associated risks. It has done so by participating in the supervision of financial rescue packages obtained by the crisis countries (Greece, Portugal, Ireland, Cyprus) during the sovereign debt crisis and – more subsequently – by accumulating government debt of the euro area countries as a part of the quantitative easing programmes. As a result, however, popular trust in the ECB has decreased since the onset of the Global Financial Crisis.101 On the one hand, therefore, European societies, rationally ignorant about interactions of monetary policy in charge of the ECB with other policies (fiscal and economic) tend to ascribe to this institution some of the blame for imperfect constitutional Adamski (2018). BBC, ‘Merkel: 'If the euro fails, Europe fails’’ (BBC, 7 September 2011) https://​www​.bbc​.com/​ news/​av/​business​-14827834 accessed 13 June 2022. 100 Aizenman (2015); Crespy (2020). 101 In early 2022 44% respondents in EU27 trusted the ECB, while 43% expressed distrust: European Commission, Public opinion in the European Union. Standard Eurobarometer 96. Winter 2021–2022, (2022) Annex, T.46. Fifteen years earlier, in spring 2007, the results were 53% and 25%, respectively (with the UK instead of Croatia in the EU27 sample): European Commission, Public opinion in the European Union. Standard Eurobarometer 67 (2007) QA15.4. See also Roth & Jonung (2002). 98 99

Constitutionalism and behavioural concepts  63 arrangements only national government can remedy. On the other, these heuristics are subject to the fact that the ECB, too, performs a satisficing strategy, one good enough for averting the risk of the euro area’s dissolution, but with no prospect of remedying its deeper ailments. Typically for political myopia, this strategy is time-inconsistent: it exchanges short term gains for longer time risks of welfare diminishing economic effects in the most vulnerable countries (especially Greece and Italy), with possible dangerous economic, political, and social tensions down the road.102

7. CONCLUSIONS Public choice and behavioural decision theories differ conspicuously in their assumptions, logics and focusses. The former, dovetailing with neoliberalism, emphasises government failure, inevitably favouring a downsized government, deregulation, privatisation, and individual liberties.103 As it not only constitutes a positive theory, but also a normative one, its implications for the constitutional inquiry are clear and logical. In contrast, prospect theory and other psychological insights about human emotional and cognitive limitations have aimed to ‘build descriptive economic models that accurately portray human behaviour’.104 They have been useful in understanding how individuals actually make choices under uncertainty and why some basic assumptions of public choice scholars are profoundly incorrect. But they have struggled to present a compelling alternative normative theory. Behavioural decision theory leads to a plea for a paternalistic government intervention, both by legislatures and by courts, aimed to protect individuals from their own biases.105 This rudimentary insight may legitimately shape consumer protection laws, as the experiences of the EU – where such laws have been developed for a few decades now – confirm. However, for two reasons it is much less applicable (even in their softest versions of ‘default rules’ to be overridden by explicit contrary actions) to core constitutional questions. First, constitutional paternalism ignores the fact that the individuals comprising ‘the government’ also suffer from cognitive and emotional limitations. In consequence, even when acting rationally from their individual perspectives, policymakers may come up with socially irrational decisions. Second, and relatedly, constitutional paternalism conflicts with the traditional recognition of a positive relationship between the general welfare and superior rules limiting the government. In fact it advocates an empowered, less constrained government justified by imperfections in how the governed think. The European constitutional tradition, largely insulated from social sciences other than philosophy and politics (due to its limited receptiveness to legal realism)106 represents one way out of the difficulty with building a convincing theory upon behavioural insights simply by ignoring them. As the examples used in this chapter demonstrate, though, it is possible to assess individual constitutional developments based upon the intriguing behavioural concepts even without a grand, consistent theory behind them. Positive analysis and normative

104 105 106 102 103

Adamski (2019). Orchard & Stretton (1997). Thaler (2015). Blumenthal (2007). Grechenig & Gelter (2008).

64  Research handbook on the politics of constitutional law recommendations thus developed will never be perfect, but they are in a position to deliver meaningful conclusions nonetheless. In other words, behavioural concepts enrich constitutional inquiry, as they provide a lens that helps identify some important analytic features in the cases examined, though not a comprehensive or complete explanation for what occurred. With these conceptual tools one can better assess general constitutional developments, as well as more specific ones, like the judicial approach to campaign finance in the US, or constitutional implications of a supranational monetary regime in the EU. Behavioural concepts also help explain why extractive political institutions, hostile to the goal of a happy society, are so prevalent globally and difficult to eradicate through institutional reforms. In this respect they also suggest that more research still needs to be done on the intersection of constitutionalism and other social science disciplines. Public choice concepts may be universally human, as are the cognitive shortcuts informing human heuristics. But in different social, economic and historical contexts they tend to produce very different outcomes. After all, welfare improving constitutional arrangements are not ‘puddings to be made by a receipt [sic]’– to use a phrase uttered by Arthur Young more than two centuries ago.107 To understand why similar institutional arrangements produce different results in different societies one should therefore understand what Scheppele aptly called ‘constitutional ethnography’108 – the role of different collective experiences and traditions for shaping constitutional arrangements. All in all, the future of the constitutional behavioural research looks promising. ‘[T]he new law and psychology is just now cutting its teeth. Thus far, it has consumed only a diet of issues that have been predigested by law and economics. The best work, however, is yet to be done.’109 Public choice theory may have already done its best work and some of its insights may not lead to fruitful future research due to their flaws. But it too offers important concepts the constitutional implications of which have not yet been fully explored. Together with constitutional ethnography (and constitutional sociology) they can help conceptualise constitutional phenomena much better than the theories detached from how humans think and behave, hopefully providing new normative insights into how constitutionalism can help build happier societies.

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Constitutionalism and behavioural concepts  69 Young, Arthur. Travels During the Years 1787, 1788 and 1789 … with a View of Ascertaining the Cultivation, Wealth, Resources and National Prosperity of the Kingdom of France. Vol. 1 (J. Rackham, 1792). Zeitlin, Jonathan & Amy Verdun eds. EU Socio-Economic Governance since the Crisis: The European Semester in Theory and Practice (Routledge, 2018). Zglinski, Jan. Europe's Passive Virtues: Deference to National Authorities in EU Free Movement Law (Oxford University Press, 2020). Zhu, Guobin (ed), Deference to the Administration in Judicial Review (Springer, 2019).

5. Emotions in constitutional law András Sajó

Implicitly conceding that political life in ordinary times was dominated by passion and emotion, Alexander Hamilton famously wrote that the drafters of the US Constitution were fortunate in being able to frame a constitution based upon ‘reflection and choice’ rather than ‘accident and force’ (Hamilton, Federalist No. 1). His colleague James Madison suggested that constitutions could be designed to contain and channel passions into the service of the public interest (Madison, Federalist Nos. 10 & 51). Modern experiences with populist leaders and more generally with charismatic political leadership show that constitutional design cannot assuredly keep emotions and passions out of ordinary politics (Weber 2020). And, as this chapter shows, neither can they be excluded entirely from the process of constitutional design (see Elster 1999). After examining many of the ways in which emotions are understood and represented in ordinary political life and discussing how legal scholars have addressed the role of emotions, this chapter turns to the role of emotions in constructing constitutions, and then to the way in which public law seeks to regulate emotions through such doctrines as militant democracy and rules dealing with public demonstrations. The chapter concludes by emphasising that scholars who fail to pay attention to the place of emotions in constitutional law and ordinary politics are likely to overlook much of interest.

1.

THE EMOTION-REASON RELATION

At least since Plato, emotions (passions) were opposed to reason, being inferior and often bad, although the role and understanding of emotions changed in history (Stearns 2017; Rosenwein 2020). Anger was ‘wild joy of war’ in Homer, orgē in Aristotle, and ira in Seneca (Dixon 2003). This opposition was foundational for modern law which was called to expurgate emotions and provide a system where decisions are exclusively based on reason (logical operations). In the last decades, perhaps in response to the growing interest in emotion research, social science increasingly recognised the importance of emotions (Hirschman 1977; Elster 1999; Elster 1989) and emotions became, once again, relevant in the study of law either for descriptive (Sajó 2011) or normative purposes (Maroney 2011; Bandes & Blumenthal 2012; Nussbaum 2005). Emotions participate in the building of societal moral norms (which are directly relevant for law, given the importance of law corresponding to moral intuitions and moral precepts). Of course, the emotion theory of constitution and constitutional law offers only partial explanation of constitution-making, acceptance and interpretation. Emotions (feelings) influence cognition even if the feeling is not conscious; in many instances it is not only conscious, but it is named and evaluated. ‘Emotion and cognition, though often treated correctly as having functionally separate features and influences are interactive and integrated or mingled in the brain’ (Izard 2009, 2). Functional magnetic res70

Emotions in constitutional law  71 onance imaging (fMRI) based research is changing the understanding of human cognition.1 ‘An emerging view in cognitive neuroscience is that, rather than constituting a distinct and opposing system, emotion is a fundamental, inseparable component of cognition and its neural underpinnings’ (Todd et al. 2020, 27). There is no widely accepted definition of emotion (Panksepp 2003). It is argued that the emotion describes actual personal and social experience of feelings (the neural process), influencing the very process it describes. Emotions are acknowledged feelings where the acknowledgment may reach various forms of consciousness. The naming of emotions is itself a significant part of the emotional experience (Ruys et al. 2019). Emotions are information about feelings (neural reactions to information/stimulus) both for the individual and the environment (Clore et al. 2001). Emotions have salience referring to both reward and punishment associated with a stimulus (though some emotions, like pride, do not possess action tendencies and do not excite immediate action). Emotions contain social information, contribute to social coordination, and are culturally regulated. Such information is socially important as it informs others of probable future action (appraisal): a sign or expression of anger indicates likely aggressive action or credible future committed strategic behaviour (angry workers are likely to go on strike). Stimuli are often culturally determined, and their interpretation is framed partly emotionally and based on personal experience but also according to social frames. Given the complexity of the stimulus the emotional reaction is historically contingent (Boddice 2020, 132). Our emotional interactions become patterns, and relatively stable clusters of these emotional patterns become facts of social life. These emotional patterns are reflected in and shaped by the most foundational legal institution in a modern democracy: the constitution. Emotions (feeling good or bad, a matter of valence, i.e. approach or avoidance) have a moral impact (of particular importance to law and justice) on the evaluation (and regulation) of one’s own past and planned behaviour and on the behaviour of others, where the emotion (e.g. moral outrage) indicates that the act is good or bad. According to the theory of ‘constructive sentimentalism’ that goes back to David Hume, moral judgements ‘are based on sentiments that dispose us to emotions of approval and disapproval and that these sentiments are shaped by historical process’ (Prinz 2010, 13). Moral sentiment theory grounds moral judgement and standards of right in a form of reflective feeling that links reason and emotion. It combines the faculty of moral judgement with the power to motivate action. Like constitutional patriotism, moral sentiment has the potential to generate affection for principles of right, including the rights-based constitutional arrangements of particular nation-states. (Krause 2018, 73; Tangney et al. 2007).

Humans operate with assumptions about the emotions, emotional motives and intentions of others with whom they directly or indirectly interact (‘in the shoes of others’); they operate a theory of mind (ToM) which can be non-conscious. Empathy, a major component in collective human action shaping the law (universal rights), enables the understanding of other people’s perspective. Humans attribute – to another or oneself – mental states and are able to explain and predict other people’s behaviour by observing their independent mental states

1 fMRI measures the blood-oxygen-level-dependent (BOLD) response. The response means change in ratio of oxygenated to deoxygenated blood as it changes over a period of several seconds.

72  Research handbook on the politics of constitutional law such as beliefs and desires (Gallagher & Frith 2003). This is of relevance to law where attribution of intent, causation, etc., are crucial: they animate presumptions of guilt and innocence in folk psychology. Humans as social beings operate in social relations and exist in groups. Emotions reinforce membership and cooperation. ‘Humans are social beings – they share the norms and the rules of the groups they belong to and they care about the opinions of others’ (Baumeister & Leary 1995). Virtually everyone has experienced concerns about being judged negatively by other people from time to time. Legal institution building (through legislation and constitution-making) is influenced by collective emotions (von Scheve & Salmella 2014). ‘Collective emotions are those emotions of which the members of a collective are plurally self-aware as theirs, collectively.’ (Schmid 2015, 107). This communality of emotions is a precondition of shared perception and action. Emotions emerge and are reinforced in encounters, where emotions together with interrelated epistemic experience are shared (or emotionally rejected). This is the level where interpersonal emotions with emotional consequences are formed in the group (group directed empathy: hate speech against a group results in negative feelings in the absent target group member) and even inter-group. Collective emotions are macro-level affective phenomena. Being concerned with other people’s opinions of oneself is assumed to be adaptive because it facilitates affiliation. (Nikolić 2020, 651). Emotions operate within the frame of one’s identity which is formed by group identity. ‘Presumably, if a group collectively engages in empathy towards outgroups, this will strengthen ingroup cohesion, for instance, by way of social distinction. Furthermore, if individual members empathize with the shared emotions of their ingroup, they may gain additional affective reasons to retain their membership. … Identifying the norms guiding emotional sharing via group-directed empathy may also facilitate affective conformity, and help maintain the shared emotional patterns of the given group. Finally, group-directed empathy may reinforce a sense of belonging.’ (Szanto & Krueger 2019, 155).

As being ingroup (not an outcast) is crucial for personal well-being, and the group maintains itself by exclusion and in conflict with the outgroup, emotions reinforce ingroupness and groups membership provides a cognitive frame for the emotions. (Norm-breaking within the group results in shame, harm to the outgroup can be a source of pride, etc., with obvious consequences regarding moral judgements and related legal considerations.) Intergroup emotion theories postulate ‘that when people identify with a group, they will appraise social objects or events in terms of their implications for the group’ (Smith & Mackie 2006, 174). Emotions can be shared but it is debated if an emotional fusion between the members of the group occurs, and if yes, how and where is it localised. Emotions are shared (felt emphatically) and perceived at the group and societal level and become expressed as collective attributes and expectations. For Adam Smith (2002) ‘fellow-feeling’ was important for moral sentiments and prosocial attitudes. The social emotions are gradually reified, e.g. in the form of individual reports and collective narratives on the ‘prevailing sentiment’. Sentiments ‘are enduring and mood-like affective dispositions or ‘emotional attitudes’ (Oatley 2000) which are directed towards in- or out-groups, such as feelings of belonging, solidarity, hostility, or resentment.’ (von Scheve & Ismer 2013, 411). These sentiments are endorsed in collective action where people share emotional experience and express it, like the anger of the Paris mob that went to storm the Bastille in 1789. Further, reports of the emotional reactions (at the Bastille) are communicated to others, who were not

Emotions in constitutional law  73 present but who will react emotionally to the events and the emotions triggering, and responding to, the events. Humans care in the form of feelings about the emotions of others, and understand those emotions (empathy), and pass judgement on these emotions, including moral judgement (the emotion is good or bad). This generates a social emotion loop (reinforcement or sanction). All this is ‘further modulated by contextual factors such as real or imagined group membership and shifting social identities. Moreover, each of these social processes variously affects and feeds back onto the others.’ (Szanto & Krueger 2019, 153). The social interaction and reification of emotions provide a frame to the understanding for the generation of social norms and societal moral judgements which generate constitutional institutions. Passions become enduring by institutionalisation. When the group member is told in an authoritative way that the group is outraged (as it was expressed in the Declaration of Independence) the group member will share the emotion or at least find it appropriate as a group member. A general theory of the institutionalisation of moral judgements would require the consideration of the continuum of cognitive, behavioural, and affective dimensions. The following subchapter concentrates on the neglected role of emotions in legal institution building and institutional emotion regulation.

2.

EMOTIONALISM IN LEGAL SCHOLARSHIP

The assumption of inferiority of emotions, neatly distinct from reason, is an important background assumption of modern law. Legal scholarship, especially those who conceived the discipline as science discussed law as a purely rational activity, or a matter exclusively dealing with norms according to logic, pretending that this activity is detached from emotions. For normative reasons, in the application of law institutional measures were taken to squeeze out emotions from legal activities. While most constitutional lawyers are concerned with the identification of the proper meaning of the constitution, it remains a fundamental problem in constitutional law, what makes the constitution accepted. The answer to this empirical question determines the practical limits to the development of constitutional law. An interpretation of the constitution that would yield a result that is contrary to strong public resentment and anger is unlikely to be advisable. If the standard interpretation of the values of the constitution and existing precedents would require an emotionally unacceptable solution than the constitution is in danger. ‘Liberalism’s critics have charged that its aversion to affect is unsustainable. Modern procedural liberalism has no room for the strong passions of belonging, loyalty, and allegiance.’ (Markell 2000, 38) Montesquieu argued that legal institutions must correspond with public sentiments. Eighteenth century scholars of moral sentiments (Hume 2007; Smith 1976) insisted on the power of moral judgement in the formation of public institution building. After the French Revolution the idea of codification and a legal system based on codified abstract concepts started to prevail on the European Continent. In response anti-Enlightenment thought and political reaction challenged this rational construct: Savigny postulated a law that corresponds to an emotionally charged Volksgeist. (This looks like a reference to popular sense but in reality he proposed the legal sense of a learned community of legal scholars.) The anti-formalism of the Volksgeist tradition found its echoes in some Nazi legal doctrines (gesundes Volksempfinden, turned into law in 1935, enabling criminal punishment in accordance with the people’s emotions). On the other hand, the politically liberal and antipositivist Leon Petrażycki, relying

74  Research handbook on the politics of constitutional law on ‘emotional psychology’ considered legal experience the proper object of study where the experience of intuitive law did not even consider positive law. As a forerunner of contemporary law and emotion scholarship (Maroney 2011, 2012; Roach Anleu & Mack 2005; Sanger 2013), Petrażycki (2011) proposed a judicial attitude responsive to the emotional and social conditions of the individual case. The Russian psychological school influenced the theory of Soviet (class based) legal consciousness and feelings of justice, serving in the first years of the Bolshevik revolution summary justice in people’s courts (Vasilyev 2019). American legal realism and the German Free Law school and legal sociology of the early nineteenth century (Ehrlich 2001) considered the inconsistency of the written and applied law, partly due to the influence of emotions. In American legal scholarship a generation of practicing lawyers and academics born around 1880 attacked legal formalism in order to foster change and adaptation to new social conditions and progressive demands. They increasingly relied on psychology that was thought to provide ‘a background for a natural science of society’ (Robinson 1935, 49). Jerome Frank insisted on the importance of the personality of judges in judicial fact finding and decision-making, venturing famously into a gastronomical explanation (in reality, a quip) (Frank 1930). Thurman Arnold discussed moral ideals of the law as myth, symbols for emotional needs (Arnold 1962, Xiv). A different concern, namely lack of popular support of the republican constitutional system in the Weimar Republic brought the attention of Rudolf Smend to the integrative (social) function of constitutional law. The constitution needs emotional support to carry out its social integrative function. This was to be achieved through the mobilisation of the citizenry using democratic symbols (such as the flag and the plebiscite). He also insisted on the integrative role of the constitutional leader and institutions After World War II, the German Basic Law was created without public participation and in a ‘rather depressed mental state.’ In these circumstances Sternberger has indicated the need of an emotional attachment to the constitution to generate constitutional patriotism (Verfassungspatriotismus) to counter the lack of a full nation state (the GDR, i.e. the Eastern part was under Soviet occupation; Sternberger 1979; Mueller 2007).2 For Loewenstein, writing before the War, this must have been a desperate effort, as ‘democracy is utterly incapable of meeting an emotional attack … even its emotional ingredients are only a prelude to reason’ (Loewenstein 1937, 428). In political theory conservatives tend to emphasize the importance of national affiliation and liberals try to find emotional support in some kind on civic affiliation. Positive law is thought to produce ‘new motives for compliance with legal norms by producing shared identifications among citizens.’ (Markell 2000, 49). The contemporary understanding of constitutional commitment emphasises ‘particularised contexts and particularised emotions. … [E]motions around communal identity are complex and changeable, as many constitutional patriotism advocates do, but also shift the focus from abstract concepts and generalised discussions to real world contexts in which people manage multiple, conflictual emotions simultaneously and attach themselves to ideals through the specifics of historical particularity’ (Temple & Lemmings 2018, 10).

2 The term ‘constitutional patriotism’ became central in the writings of Habermas but there it stands for a non-nationalist patriotism emerging from rational discourse (Habermas 1986).

Emotions in constitutional law  75

3.

EMOTIONS BUILDING CONSTITUTIONAL (PUBLIC LAW) INSTITUTIONS

Constitutions are created through emotionally driven processes and reflect – at least to some extent – basic moral emotions and public sentiments formed by emotions. Though definitions vary, Little (2013) suggests that ‘a moral emotion is a feeling or affect that is responsive to the situation of other living beings’; frequently mentioned in this category are guilt, shame, compassion, altruism, anger, disgust, and empathy (Prinz 2010). While most emotion research concentrates on personal experience, emotions also operate interpersonally – that is, in dyads and small groups – and collectively – that is, in larger social and cultural groupings (see above). Because emotions influence the formation of law in complex human interactions and are seldom specific and explicit, Sajó (2011) calls this emotion/cognitive frame/moral judgement complex ‘constitutional sentiments,’ in the tradition of eighteenth century moral sentiments theories. Constitutional sentiments are shared emotions in the process of objectification. Reference to sentiment was common in the making of liberal constitutions and public law, where (contrary to public opinion, a later social point of reference), there was a strong emphasis on the emotional component. Constitutional sentiments exist in the form of oral (repeated) and written statements, visual representation and other permanent signs. The claim that constitutions are emotionally shaped is paradoxical. Emotions are individual phenomena anchored in brain and body (a physical reality) while law is a set of institutions, and rules, standards, principles and habits resulting in judgements (in the psychological sense) and judgement-based action of individuals and organisations. Individual legal actors do have emotions but not the law. A similar problem is present in social norm creation and application; law-making and law application are special forms of social norm generation with specificities related to institutionalisation, high level of abstraction, organisation, and the use of force and material sanctions (as opposed to social sanctions for social norm breaking. Collective emotions (if expressed as public sentiment) are different from the individual emotions that constitute it; they are more than their aggregation. Emotions converge at the group level because of automatic mimicry-based contagion, group pressure, identification with the group, conformism and/or because of the emotional appraising in the light of someone else’s emotional orientation (social appraisal, Manstead & Fischer 2001). Groups (beyond the personal interaction) provide common cognitive frames and identity which enable similar emotional interpretation of stimuli. If you believe that you are member of a group, you will feel anger if the group is attacked. Some scholars, following the Durkheimian tradition, emphasise the generation of common values through common action, rituals in particular. Social categorisation of the person (referring to identity – ‘you are a patriot’) and of the stimulus generate overlapping emotions and assumptions about shared emotions (American patriots felt anger because of what George III did to them). This is turned into collective emotional expectations and shared emotions (this is how patriots react; I feel what my group feels (supposed to feel)). ‘When individuals are given information about particular emotions that members of their groups are experiencing (“Women are angry over the candidate’s latest comments.”) they later report feeling the appropriate emotion when categorized into the appropriate group’ (Mackie & Smith 2017, 659). These mechanisms apply for large, imaginary communities too. People tend to think of themselves in terms of their group membership. People converge toward what

76  Research handbook on the politics of constitutional law they believe to be their ingroup’s distinct emotional experience when reporting emotions as group members (self-stereotyping) (Moons et al. 2009). This is how we move to collective emotions which contribute to building common social norms. Norms reflect social concerns that are expressed publicly as feelings, and which often receive emotional and cognitive reinforcement or sanction. Eighteenth century British abolitionists met and exchanged their feelings of horror and outrage; then, they referred to these common sentiments as a source of their community and used them as justifications. The common feeling was the evidence of moral truth. A shared emotion is a comforting sign of appropriateness, where the latter indicates truth, a binding cognitive frame. Feeling the right emotion about a public matter becomes a matter of being morally right, an ‘ought’ that has to be respected and reflected in constitutional law. Those nineteenth century Americans who felt compassion with the suffering slaves but did nothing to remedy it were ready to endorse emancipation and the Thirteenth and Fourteenth Amendments. Where feelings are successfully imposed on a group, especially if turned into a component of group identity, make new norms of (legal) action based on these feelings accepted (Caouette et al. 2012). The feelings of others act as normative points of reference by becoming public. Constitutions make selections that leave people feeling good as opposed to feeling wrong or bad (Prinz 2010, 520); hence the importance of public moral sentiments that tell the constitution maker what will make people feel good. Consider the building and institutionalisation of collective emotions turned into constitutional sentiment in the case of the American Constitution. The Declaration of Independence was a long list of grievances of the colonists. Personal negative experience, humiliation and fear were shared in small groups which were formed and assumed emotional identity in the sharing and emotional evaluation of their common lived experience. The behaviour of the colonial administration repeatedly offended the legal self-representation of colonists, namely that they are Englishmen, and Englishmen have certain rights. (It is immaterial to what extent these assumptions were legally correct; they were certainly correct emotionally, giving pride and self-assurance.) Social emotions came into play: the members of the community attributed emotions to others and evaluated other members of the community and the administration and those loyal to the administration. This resulted in polarisation. Other groups with similar experience developed similar shared emotional reactions and there was communication (story-telling, sermon, pamphlets, newspapers) about the parallel experience which started to get objectified in pamphlets and increasingly in political and legal action (at townhall and colonial assemblies). The contempt and increasing repression exercised by the English colonial power results in armed insurrection and also in further writing and speech that objectified the shared emotional experience of resentment. This is what was transformed in the language of the Declaration of Independence, a language written under strong emotional stress, and accepted because it resonated with the emotional experience not only of the signatories but a large group of Americans (who started to become Americans thanks to the shared emotions and by participating in acts dictated by those emotions). The revolutionary architects of the early United States drew energy from a visceral hatred of despotism. The Declaration of Independence is a document of deeply felt outrage. As to the Constitution, it is fair to say that the choice to distribute power among various branches, and between state and federal governments, was dictated to a great extent by fear of excessive governmental and popular power. ‘The Framers were virtually obsessed with a fear – bordering on what some might uncharitably describe as paranoia – of the concentration of political power’ (Redish & Cisar 1991, 451).

Emotions in constitutional law  77 Individual emotions do play a role in the law-making and application: the emotions of the law-maker will play a role in their decision although these emotions rarely influence the specific legal text, the result of collective action. For example, emotions like fear and more emotionally determined complex psychological attitudes like conformism will play a role in their support of a constitutional initiative. Constitution-making and law-making are, however, a collective activity, with emotionally interactive participants in a relatively fixed group, with physical presence (Founding Fathers in Philadelphia in 1787, French National Assembly in 1789). The American and French constitutions of the eighteenth century reflect the galvanising power of emotion, which ‘enables individuals to break from the limitations presented by consistency and habit when circumstances warrant’ (Gewirtzman 2009, 674). Emotions in a group are interacting (it is here that the ‘theory of mind’ becomes relevant) and to the extent there is emotional attachment to the group (and even without that in view of group conformism), this attachment will play a coordinative role. As the Philadelphia example indicates, the participants shared emotional experiences (fear of, or anger at, English cruelty and despotism; see also the outrage drive grievances responding to the injustice of the colonial power; further there was widespread fear because of various crowd actions like the Shays rebellion). Easily recalled emotions enabled the acceptance of cognitive frames and moral judgements, resulting in the acceptance of common principles. The Philadelphia drafting was driven by cold emotional recollections (excepting the emotions they felt towards each other); the recalled emotions created common frames for judgement. In extraordinary circumstances enthusiastic emotional interaction prevails, as it happened on the night of 4 August 1789 at the French National Assembly, where aristocrats and members of the clergy were overtaken by emotions in an emotional contagion, characteristic, according to Le Bon, of the crowd. This explains why so enthusiastically they sacrificed their feudal privileges, a matter they regretted the day after. Equality before law was the result of panic, enthusiasm and fear, all of which coalesced on the night of 4 August 1789 amidst news of uncontrollable mutiny and plunder (Elster 2007; Sajó 2011). Delegates at the French National Assembly in 1789 were also confronted with threats to their life and limb, making decisions under extreme emotional pressure – including from those in the balcony during deliberations. Constitution-makers not only are predisposed to reflect the prevailing emotionally shaped moral judgements. They are normatively and socially bound to reflect the emotional experience and emotionally shaped moral and other judgements of the electorate or country. The normative commitment is based on the idea that the constitution and laws are written on behalf of the people (or a relevant part of the electorate). Sociologically, the constitution-makers live in a social environment which cannot be disregarded (there is often an emotional commitment to the social community that is represented). Constitution writing is success oriented: the end product has to be accepted by the constituents and such acceptance is very much an emotion-based venture. For this reason, the prevailing, emotionally determined, moral judgements of society (shared or not by the drafters and their social environment) do play an emotional role as anticipated emotional and practical feedbacks. There are different pathways to constitution-making. Most public law-making and application are quite often a matter of routine, a top-down process that tries to anticipate and incorporate public emotions. Rejection at referendum is primarily related to identification with political opponents of the project, a matter of political identification, a matter of confirming membership in the group and less with specific moral judgements. (See, for example the referenda on the constitutional draft in France in 1946, contrast with the enthusiasm generated in

78  Research handbook on the politics of constitutional law the person of de Gaulle, carrying the 1958 Constitution.) The founding fathers of the American Constitution considered anticipated public sentiment at the ratification assemblies a compelling fact; such anticipation of public feelings influenced the content of the Constitution. It was believed that constitutions and laws might fail if they radically disregard moral sentiments, even if only those of the minority, or, at the least, they would perpetuate popular dissatisfaction. By contrast, some constitution makers as moral entrepreneurs have thought that they have a right or duty to impose (their) moral truth and proper emotion-displaying rules on society. Montesquieu ([1748] 2002) claimed despotism can be as adequate for a people’s emotions just as, in different circumstances, more moderate forms of government are. While public sentiments are a matter of consideration for the constitution, constitution makers meet the expectations and desires of public sentiment selectively; constitution making is an act of biased choices, and interests are a major source of bias. But public sentiments cannot simply be disregarded; they are too powerful. The selection of public sentiments is a matter of conflict among those groups holding these sentiments (Mill 1985, 65). In despotic regimes simple identification with the leader can be the emotional basis of the formal popular acceptance of a constitution. Here the values and solutions are first cultivated by the leader (e.g. a hate campaign against a minority group) using mass media manipulation generating emotions (anger, disgust, models of new ingroup identity with aggressive nationalism). These emotional expectations will find echoes in the constitution. Modern societies are emotionally and morally divided, and constitutions approach public sentiments selectively. However, there is a deeper level of neutrality underlying liberal constitutionalism that constitutional sentiments of the late eighteenth century stood for, reflecting an experience of fear of state cruelty and oppression. These emotional components of constitutionalism, which formed the genre of the modern constitution, remain crucial. Harming and causing harm (especially intentionally) elicit strong intuitive moral condemnation. These are very powerful primary emotions. Other moral judgements reflected in constitutional law, namely, fairness (distributive justice)3, which are not closely related to bodily injury, also influence constitutional values. Equality, with the underlying sentiment of indignation felt by those who are treated unequally, a sentiment that is shared by some of the people who benefit from it, is also worth mentioning, and the principle and rules of fairness reflect complex emotions constituting a sense of justice. The constitution that is intended to provide the possibility of living together without arbitrary oppression by the ruler and the state intends to reflect those moral emotions which are shared and can be respected by all: As the French Declaration of 1789 stated: ‘the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights.’ It is here that moral emotions matter. According to Unger (1975, 24) moral sentiments ‘imply conceptions of what we might or should become’, and widespread sharing of those moral emotions created an emotional community with normative and strategic power. Moral 3 Justice research is also relevant for the formation of legal ideas including constitutional ideas and has transformative power, e.g. by shifting freedom of expression from speakers’ protection to limiting speech for the sake of feelings of personal safety. In the last decades a remarkable body of research was dedicated to the issue of justice, using primarily a cognitive frame, without specifically relating the social psychology perspective to emotion research (Milgram 1974). See also Milgram at 50; HarperCollins. Lerner, Melvin J. The Belief in a Just World: A Fundamental Delusion. Perspectives in Social Psychology (Plenum Press, 1980). Tyler, Tom R. Why People Obey the Law (Yale University Press, 1990).

Emotions in constitutional law  79 emotions share the quality of being common but are less transiently responsive to current events. They refer to everyday experiences and choices. While some like Dworkin claim that only an ex post moral justification makes emotions moral (Dworkin 1966, 966), Haidt famously asserted that ‘moral emotions and intuitions drive moral reasoning, just as surely as a dog wags its tail’ (2001, 830). Moral emotions and law are closely bound. Both take a position on what is right or wrong. Beyond signalling what is right, moral emotions lend prescriptive power: one feels that one must do the right thing. Right action takes place in social context, as ‘[e]volution has promoted social cooperation through emotions against harming others, a need for fairness and the enforcement of moral rules, empathy,’ and the theory of mind by which we ‘appreciate the thoughts, feelings, and beliefs of others’ (Mendez 2009, 608). Law, for its part, supplies the power with which to take the morally right action at the social level. Change of fundamental legal institutions is an emotion-driven process. Only by understanding changing cultural and religious conceptions of the nature of pain, the value of suffering, and the duty of compassion can we understand how, by the later nineteenth century, American legal standards came to incorporate (albeit imperfectly) the idea that to be free of physical coercion and deliberately inflicted pain was an essential fundamental right. Until the sufferings of the black body were made visible, it was possible to frame suffering in defiance of moral emotions: the proximity of the suffering changed the frame and, increasingly, the Black slave was considered as part of humanity, a fellow individual. The tide thus began to turn when ‘graphic portrayals of slaves’ subjective experience of physical pain emerged as common antislavery fare’ (Clark 1995, 463). Abolition ‘was not primarily a movement of Negroes asserting the rights of free people, but a movement to convert whites to the belief that Negroes ought to have those rights’ (Kraditor 1989, 241). This is how emotions work in society: Emotion-based moral intuitions cannot be changed simply by rational arguments. ‘The reasons that people give to each other are best seen as attempts to trigger the right intuitions in others’ (Haidt & Bjorklund 2008, 211).

4.

PUBLIC LAW REGULATING EMOTIONS

Emotions are socially regulated. Some emotions are held ‘appropriate,’ others are not; further, there are rules of proper display of emotions. Even grieving is scripted. For the proper understanding of the constitutional handling of sentiments, it is of particular importance which emotions are prescribed or proscribed and what are the techniques for the categorisation of emotion and of emotion-display management. Display provides the actor with additional cognitive control and enables emotional reinforcement from the social environment. Where the display of outrage regarding slavery was culturally improper, antislavery sentiments were unlikely to develop. Further, culture contributes to emotion management by setting cognitive frames of perception. You will be angry at the person whom you perceive as causing injustice; concepts of causation will depend on socially construed frames. The regulation of emotions varies with the culture and in history and it has an uneven impact on the action possibilities of different social groups. For example, certain displays and prohibitions of display disadvantage and incapacitate women. ‘When rage is disallowed from those who suffer and offered as a platform for the privileged, it establishes a symbolic redistribution of gender asymmetry’ (Kay & Banet-Weiser 2019, 607).

80  Research handbook on the politics of constitutional law Law as a social regulatory system participates in emotion regulation by providing uniform (and hence biased) scripts. Law will reflect (historically changing) preference for certain emotions, reflecting thereby assumptions also about certain groups that are assumed to be driven by those emotions (passions). Further, to regulate certain social groups and limit (or encourage) their interactions their emotion display is scripted and legally discouraged. Further, certain acts are legally discouraged, in order to avoid unwanted emotional reactions (see hate speech, below). Eminently, the American Constitution was written with the aim to prevent the rule of passions through institutional arrangements. ‘The passions ought to be controlled and regulated’ (Federalist Papers No.49, 317). Mistrust in emotionalism characterises the position of some constitutional courts. ‘Aggressive emotionalisation or the lowering of inhibitions’4 are considered grounds for restricting speech in Germany and the Supreme Court of Canada is concerned with emotional impacts on the target person (‘negative impact on the individual’s sense of self-worth’).5 Obviously, regulation always should take into consideration how intensive the emotionally driven reaction to regulation or its application will be. Cultural, religious and ethical wars are fought in terms of the propriety of sentiments. Vicious emotions are to be excluded from social life, expelled from the human psyche via education and suasion, like the unclean spirits whom Jesus Christ gave leave to depart, sending them ‘into the swine.’ The feelings of humiliation (loss of agency, helplessness) are contrary to fundamental assumptions of contemporary culture as expressed in the general human rights prohibition on inhuman and degrading treatment. As the social evaluation of emotions change, there are debates concerning the appropriateness of using or prohibiting certain displays, and to create law that is expected to generate certain emotions. Abrams and Keren (2007, 321) claim that legislation should be moved towards ‘the cultivation of emotion’ in the service of broader social purposes, namely hope and other positive emotions (trust, forgiveness) as ‘a social good which might be encouraged by the law’. However, judicial assumptions regarding emotional impacts6 serving as the normative basis of rules remain controversial (Siegel 2008). Further disagreement emerges because of conflicting views on the social appropriateness of emotions. Shame in particular remains ‘a problem emotion’ (Stearns 2017, 131). Shame may encourage dysfunctional behaviour but it is an effective social regulator that involves self-reflection and evaluation in response to a moral transgression (Tangney 2003). Nussbaum is concerned about anger (payback: reacting to harm by harming) which traps its agents in an inward-looking, retributive and sometimes narcissistic frame and cannot serve political justice (Nussbaum 2016). Aristotle (1934, 231) would object in the name of common sense to inirascibility [lack of anger] […]. ‘Now we praise a man who feels anger on the right grounds and against the right persons, and also in the right manner and at the right moment and for the right length of time. …. those who do not

BVerfGE 124, 300 (2009) (Wunsiedel). R. v. Keegstra [1990] 3 S.C.R. 697. 6 See Gonzalez v. Carhart 550 U.S. 124, 159 (2007 (Acknowledging the lack of ‘reliable data to measure the phenomenon,’ it is asserted that it was ‘unexceptionable to conclude that some women come to regret their choice to abort the infant life they once created and sustained’ and that ‘[s]evere depression and loss of esteem can follow.’) 4 5

Emotions in constitutional law  81 get angry at things at which it is right to be angry are considered foolish…. It is thought that they do not feel or resent an injury, and that if a man is never angry he will not stand up for himself; and it is considered servile to put up with an insult to oneself or suffer one’s friends to be insulted.’ However, Traister (2018, xXiv) argues that the social handling and labeling of anger serves the marginalisation of women and ‘rages of women … have often borne substantive change… Anger has often been the sparking impetus for long-lasting, legal, or institutional reform.’ From an evolutionary perspective anger is functional as self-defence and the retribution/retaliation impulse is so strong that it remains questionable to what extent law can disregard the drive to payback (revenge, retribution – as the basis of justice). ‘Righteous anger’ is culturally reinforced in religious and moral precepts (see the problematic nature of pardon and amnesty prohibition and the related struggle against impunity in constitutional law). Contemporary constitutional democracies, because of their liberal orientation, are reluctant to directly proscribe specific emotions or emotion displays, except hate (and increasingly certain forms of disrespect). This is contrary to the constitutional understanding of the nineteenth century characterised by enforcement of morals, in defence of prudishness, and theocracies which may prescribe or proscribe emotional scripts, as modesty for women). There are, however, important exceptions. In most legal systems offence to religious sensitivities is not protected speech and this is considered a legitimate human rights restriction.7 Arguably, although offence to religious feelings (offence to religious symbols) may cause feelings of inferiority, embarrassment, anger, distress even if this does not directly affect the free exercise of religion. The offence of sacrilege (an attack on purity where purity is a matter of disgust, (Haidt 1997) denies the emotional interest that stands behind religious zeal, like love-like passion and the form of an anger-like emotion (Tietjen 2021). Sacred loss is predictive of intrusive thoughts and depression, desecration is tied to more intrusive thoughts and greater anger and emotional distress (Pargament et al. 2005). To emotion regulation is a matter of power relations: legal concerns with negative emotional consequences indicate the power of the allegedly offended or offending group or specific institutional interests which do not allow any challenge. Sacrilege disputes and judgements are political (Cesari 2021). A second instance of specific emotion regulation targets emotions serving specific groups, a strategy that is constitutionalised in theories and practices of militant democracy. The strategy singles out signs that most likely trigger unwanted emotions. In response to the extremism of political emotionalism that served the interests of Nazi movements in the interwar period, certain forms of behaviour resulting in specific emotions serving the Nazi cause were prohibited both before and after World War II, at least in countries where authoritarian movements, relying on the possibilities of the democratic legal order, endangered the political regime. Some of the actions of the Nazi intended to increase group coherence around irrational values, solidarity within the group, and hatred of the outgroup; others, relying on aggressive self-presentation, marches, and actual violence, served to domesticate and silence their opponents by inducing intimidation, fear and feelings of helplessness. Obviously, this is not an inevitably winning strategy, as the same frightening or demeaning stimulus might generate anger in the target group which may be a catalyst of collective action for the ingroup to engage in successful resistance. Fascist emotional offerings succeed only where the deficiencies of democracy enable such success. The ‘technique of incessant repetition, of over-statements and

7



Otto-Preminger-Institut v. Austria, (Appl. No. 13470/87) [1994] ECHR 26.

82  Research handbook on the politics of constitutional law over-simplifications, is evolved and applied’ as part of ‘extreme emotionalism.’ (Loewenstein 1937, 423). The fascists used military paraphernalia and marches to impress friend and foe, and relied on unashamed propaganda. Militant democracies sometimes banned the Fascist parties, or the display of its symbols and marches, and criminalised incitement to violence or hatred against sections of the population, in particular religious or ethnic groups. The assumption was that emotional and cognitive framing effects can be prevented. Anti-incitement laws were originally intended to maintain social peace and targeted anti-status quo movements like social democrats. These militant emotion control techniques are still used in countries with similar experience, or where the experience of fratricidal war based on religious or racial divisions prevails in the constitutional culture. But emotionalism remains a vital component of democratic politics and friend/foe distinctions on the basis of nationalism are permitted, notwithstanding the negative emotional effects. Emotionalism is justified in the name of needs of identity reinforcement. It is also argued that the permission of emotionalism serves positive functions: love and emotional binding sustains the political community. The anti-emotionalism measures of militant democracy intend to protect public order against violent action. The criminalisation of incitement to violence is historically part of legal history. The anti-incitement/anti-hate laws of the nineteenth century singled out instances where hate was to be inculcated in specific ‘dangerous’ social classes and national or religious groups, primarily as a tool to counter the political influence on ‘lower’ classes and minorities. With stronger respect for freedom of expression this became problematic as what was considered ‘incitement to hatred’ was very often simply speech directed to ‘suspect’ groups asserting their rights. This status quo concern was gradually and partly transformed into a concern that protects (often vulnerable) minorities against hate induced violence and discrimination. Advocacy of hate directed against other groups became objectionable because it originates in extreme prejudice or dislike. Those people who express such negative attitudes often lack remorse when they harm others, blaming the victim or claiming that they deserve the treatment (Allport 1954; ‘the other is evil’ – Baumeister 1997). Hate is singled out as an impermissible emotion both in regard of those who feel hatred and also in view of the impact on the target group and its members of the display of hate or hate directed action (discrimination). However, there is no agreement on the emotional nature of hate (is it anger, associated with feelings of revenge?) Further, hate has evolutionary advantages, e.g. strong group-togetherness-building capacity, it is a cohesive, evolutionary advantageous emotion, even if at the individual level it results in loss of control over personal situations. It is also an emotion that was legitimate in many cultures and it still animates extreme approved violence in all three religions of the Book (Collins 2003). To add to the ambiguity of hate, even the target of the hate speech will feel hatred towards the perpetrator who is perceived as a threat for an extended period and distorts the situation (Beck & Pretzer 2005). Legal considerations (reflecting specific political and cultural differences) result in considerable differences in the handling and display of emotions in the effort to sustain political loyalty. The criminalisation of flag burning was held unconstitutional in the United States (Texas v. Johnson 491 U.S. 397 (1989)), as the potential for a breach of peace was insufficient ground to restrict speech, while for the minority the flag deserved the protection of criminal law as a visible symbol embodying the Nation, a matter of deep affection. In Germany the desecration of the flag (an insult) was introduced into law in order to sustain respect of the Republican institutions in the early, troubled days of the Weimar Republic. Later it served the protection of Nazi authority. The provision was reenacted in 1951 to protect the authority of

Emotions in constitutional law  83 the new, democratic Federal Republic, and it is still in force. The punishment for the offence to national symbols (a matter of the state’s ‘self-representation’) was held constitutional, serving the purpose of’ ‘appealing to the state-feeling (Staatsgefuehl) of the citizens.’ The flag was to be protected enabling ‘identification with the basic values symbolized by the flag.’8

5.

THE PUBLIC LAW REGULATION OF DEMONSTRATIONS

Revolt and mass disorder have been described since Plato as emotional in terms of the ‘madding crowd’, an external description of the events and uncontrollable participants by (often frightened) elites delegitimizing the cause of the participants (Nagy 2018). Notwithstanding the negative perception of the law of popular action since 1689, the right of petition was recognised in England and mass gatherings were held without permit as a matter of liberty. The First Amendment of the American Constitution and the 1831 Belgian Constitution (the model constitution of nineteenth century liberalism), guarantees freedom of assembly, a right that is now part of the fundamental rights canon. This reflects the importance of protests in the creation of the new political regimes. However, as protests continued to give voice to the politically unrepresented lower classes, this right was treated with suspicion. Organised lower classes were not allowed to demonstrate due to it being contrary to constitutional order by definition, see e.g. the anti-socialist and anti-anarchist laws in the nineteenth century in Germany, Austria-Hungary and Italy were subject to discouraging rules of liability. The anti-crowd suspicion was articulated with reference to the emotional nature of the demonstrators, described as crowd, mob, and their actions as riot. The negative representation of the crowd mentality, supported by upper class fear and status quo interest were influential in (preventive) anti-riot policies, restrictive conditions of authorisation, etc. Nineteenth century ‘crowd science’, responding to ‘social problems’ of urbanisation and unrest turned to psychology. Le Bon claimed that the reasoning of the crowd is inferior and relies on ‘imagelike ideas’ which are not connected by any logical bond of analogy or succession’. ‘The entire audience experiences at the same time the same emotions, and [sometimes]… the sentiments suggested by the images are so strong that they tend, like habitual suggestions, to transform themselves into acts. The excited crowd together is guided by suggestion.’ (Le Bon 1895, 47, 54–55; Moscovici 1981). This became the prevailing scholarly view well into the middle of the last century, and the emotionality of collective behaviour was seen as a source of irrationality of assemblies, supported by experiences of mass rallies in totalitarian regimes: mass assemblies were thought to be ruled by mass enthusiasm, collective excitement, rumour, social contagion, and mass hysteria. However, when analysing eighteenth century food riots Thompson (1971) demonstrated that these rioting actions remained controlled and the participants shared a belief that they were defending their existing rights.9 Contemporary social movement theory claims that ‘We understand far more clearly now how internal social organization facilitates mobi-

Upheld in 1990 by the German Federal Constitutional Court, 81 BVerfGE 278, at 293. Thompson’s moral economy approach can be read as an alternative to emotions driven social behaviour. Instead of the anger motivated aggression, the collective action is motivated by emotions of justice, most surprisingly, in the cases discussed by Thompson, based on a certain understand of the law and rights, and on religious certitudes, indicating the importance of cognitive frames and signs eliciting emotions. 8 9

84  Research handbook on the politics of constitutional law lization and how external political opportunities provide openings for challenging groups to initiate collective action. We have also come to realize that framing processes are germane to the generation of collective action.’ (Morris 2000, 452). Mass demonstration and riots are characterised by a shared identity of participants and the emotional interactions occur as an ingroup reinforcing activity. Nevertheless, given the activation of mirror neurons in the physical vicinity some kind of empathy may play a role in imitation violence (Iacoboni 2013). The judicial evaluation of freedom of assembly is centred around permissible risk. Assumptions on the dangerousness of people and available control forces drive these evaluations: are police searches or police cordons far away from an event permissible,10 or can only clear and present danger of actual violence be prohibited?11 Risk taking decisions depend on emotions (probably even in an organisational setting, Lerner & Keltner 2001). Fearful and angry people have different risk perception. A second constitutional consideration concerns perception of the social identity of the assembly: in Egypt demonstrations expressing wrong national identity (e.g. gay rights parade, Copt processions) are prohibited, while Neo-Nazi marches are protected in the United States.12

6. CONCLUSION Emotion research presents compelling evidence regarding the importance of social emotions in institution building, including constitutional law. Normative legal theories propose that the emotional status of persons be elevated to a major consideration in law-making and adjudication while scholars interested in description and explanation emphasise the formative role of social emotions in norm generation and institution building. Further integration of the results of the empirical research on moral emotions remains a major practical issue and an important area of constitutional theory building.

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86  Research handbook on the politics of constitutional law Le Bon, Gustave. The Crowd: A study of the popular mind (Norman S. Berg, 1896). Lerner, Jennifer S. & Dacher Keltner. (2001). ‘Fear, anger, and risk’, Journal of Personality and Social Psychology 81: 146–59. Lerner, Melvin J. The Belief in a Just World: A Fundamental Delusion. (Plenum Press, 1980). Little, Daniel. ‘Moral emotions’ (Understanding society, 16 March 2013, https://​understandingsociety​ .blogspot​.com/​search​?q​=​moral+​emotions). Loewenstein, Karl. (1937). ‘Militant Democracy and Fundamental Rights’, American Political Science Review 31(3): 417–32 and (4): 638–58. Mackie Dianne M. & Eliot R. Smith. (2017). ‘Group-based emotion in group processes and intergroup relations’, Group Processes & Intergroup Relations 20: 658–68. Manstead, Anthony S.R. & Agneta H. Fischer, ‘Social appraisal: The social world as object of and influence on appraisal processes’ in Klaus R. Scherer, Angela Schorr & Tom Johnstone (eds) Appraisal processes in emotion: Theory, methods, research (Oxford University Press 2001) 221–32. Markell, Patchen. (2000). ‘Making Affect Safe for Democracy?: On “Constitutional Patriotis”’, Political Theory 28: 38–63. Maroney, Terry A. (2011). ‘The Persistent Cultural Script of Judicial Dispassion’ California Law Review 99: 629–81. Mendez, Mario F. (2009). ‘The neurobiology of moral behavior: Review and neuropsychiatric implications’, CNS Spectrums 14: 608–20. Mill, John Stuart. On Liberty (Penguin Books, 1985). Milgram, Stanley. Obedience to Authority. An Experimental View (Tavistock Publications, 1974). Milgram at 50. (2014). ‘Special Issue: Milgram at 50: Exploring the Enduring Relevance of Psychology’s most Famous Studies Journal of Social Issues’ 70: 393–602. Montesquieu, Charles De. The spirit of laws (Prometheus Books, 2002). Moons, Wesley G., Dianna J. Leonard, Diane M. Mackie & Eliot R. Smith. (2009). ‘I feel our pain: Antecedents and consequences of emotional self-stereotyping’, Journal of Experimental Social Psychology 45: 760–69. Morris, Aldon. (2000). ‘Reflections on Social Movement Theory: Criticisms and Proposals’, Contemporary Sociology 29: 445–54. Moscovici, Serge. L’Âge des foules. Un traité historique de psychologie des masses (Fayard, 1981). Mueller, Jan-Werner. Constitutional Patriotism (Princeton University Press, 2007). Nagy, Piroska. (2018). ‘Collective Emotions, History Writing and Change: The Case of the Pataria (Milan, Eleventh Century)’, Emotions: History, Culture, Society 2: 132–52. Nikolić, Milica. (2020). ‘Social emotions and social cognition in the development of social anxiety disorder’, European Journal of Developmental Psychology 17: 649–63. Nussbaum, Martha C. Anger and Forgiveness: Resentment, Generosity, and Justice (Oxford University Press, 2016). Nussbaum, Martha C. Hiding from Humanity: Disgust, Shame, and the Law (Princeton University Press, 2004). Oatley, Keith. ‘The sentiments and beliefs of distributed cognition’ in Nico H. Frijda, Anthony S.R. Manstead & Sacha Bem (eds) Emotions and beliefs (Cambridge University Press, 2000) 78–107. Panksepp, Jaak. (2003). ‘Damasio’s error?’, Consciousness and Emotions 4: 111–34. Pargament, Kenneth I., Gina M. Magyar, Ethan Benore & Annette Mahoney. (2005). ‘Sacrilege: A Study of Sacred Loss and Desecration and Their Implications for Health and Well-Being in a Community Sample’, Journal for the Scientific Study of Religion 44: 59–78. Petrazycki, Leon. Law and Morality (Routledge, 2011). Prinz, Jesse. (2013). ‘Constructive Sentimentalism: Legal and Political Implication’, In Nomos Passions and Emotions 53: 3–18. Prinz, Jesse. ‘The moral emotions’ in P. Goldie. The Oxford handbook of the philosophy of emotion (Oxford University Press, 2010) 519–38. Redish, Martin H. & Elizabeth J. Cisar. (1991). ‘“If angels were to govern”: The need for pragmatic formalism in separation of powers theory’, Duke Law Journal 41: 449–506. Robinson, Edward S. Law and the Lawyers (Macmillan, 1935). Rosenwein, Barbara H. Anger: The Conflicted History of An Emotion (Yale University Press, 2020).

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6. Popular sovereignty, constitutional democracy and the mental construal of political representations Zoran Oklopčić

1.

INTRODUCTION: THE PEOPLE BEYOND DEFINITIONS

What is the meaning of popular sovereignty? Who is the people whose existence seems to be presupposed by this expression? Against the backdrop of a narrower time-horizon, the people bears the imprint of the preferences of parties in power, as reflected in the content of the norms which – in regulating the acquisition, transmission, and termination of citizenship – shape its character at a more granular, day-to-day level (cf. Kochenov 2020). In a broader historical perspective, most sovereign peoples also continue to bear the imprint of the preferences of powerful external actors, which, at different points in the past, affected if not the forms of government under which they live, or the content of the constitutions which inaugurated them, then the shape of territorial boundaries which prefigured their identity as their notional authors. At the most general level, the character of the people cannot be divorced from social morality, national mythologies, political ideologies, and pre-existing cultural affinities which inform the character of objectively-existing commonality (among the people at large) as well as the subjectively-felt sense of belonging (among the members formally equal, yet invariably abstract ‘citizens’). When it comes to the more specific meanings of the term ‘people’, they will inevitably depend on the character of the debates in which this term appears, as well as on the purposes for which it will be used by those who participate in them. While the working definitions of the term ‘people’ may provisionally fix its meaning and in doing so prevent ‘conversational breakdown’ (Riemer 2015, 315) any attempt to provide a widely accepted understanding of its meaning will inevitably end up reducing it to the instance of a single category at the expense of all others to which ‘the people’ may belong (oftentimes at the same time) (1) as the object of (a) normative theory, (b) constitutional theory, (c) democratic theory, (d) historical sociology, (e) comparative politics or (f) political philosophy, (2) as articulated by (a) John Locke, (b) Jean-Jacques Rousseau, (c) Abbe Sieyès, (d) Carl Schmitt, (e) Robert Dahl, or (g) Jan-Werner Müller, (3) as distinguished from (a) democratic society, (b) majority nation, (c) social class, or (d) population at large; (4) as antithetical to (a) corrupt elites, (b) oligarchy, (c) multitude, (d) fickle mob, (e) majority tyranny, or (f) pluralistic civil society (5) as vested with (a) ordinary constituent power, (b) ultimate authority, (c) a right to collective self-determination, (c) a right to territorial integrity (6) as appearing in (a) the state of nature as a result of unanimous agreement, (b) city squares as assembled masses, (c) city squares as assembled masses, or (d) at polling stations, in regular intervals, in accordance with the constitution

88

Popular sovereignty, constitutional democracy and political representations  89 (7) as characterized by (a) impatience, (b) vulgarity, (c) emotionality, (d) common sense, (e) homogeneity, (f) docility, (g) manipulability, (h) ‘popular passions’ (8) as situated within (a) the boundaries of a sovereign state, (b) its traditional homeland, across the boundaries of existing states, or (c) the boundaries of an already existing sub-national territorial unit, (9) as constrained by (a) the rule of law, (b) basic constitutional structure, (c) checks and balances, (d) parliamentary procedure, or (e) the norms of international law (10) as institutionalized in (a) a unitary state, (b) a federal state, (c) parliamentary democracy, (d) presidential democracy, (e) liberal democracy, or (f) a political order based on the ideal of majority rule. (11) as presumed by (a) the principle of popular sovereignty, (b) the ideal of democratic inclusion, (c) the law of self-determination, (d) the practice of parliamentary accountability, or (e) the idea of popular mandate (12) as associated with (a) Abraham Lincoln, (b) Andrew Jackson, (c) Charles De Gaulle, (d) Juan Peron, (e) Huey Long, (f) Barack Obama, (g) Viktor Orbán, (h). Beppe Grillo, or (i) Lula da Silva, (13) as contributing to (a) political stability, (b) political polarization, (c) domestic extremism, (d) international conflict, (e) world peace, (f) solidarity between the rich and the poor (f) the appeal of mutual reciprocity, or (g) the intelligibility of political equality. (14) as used, abused or misused by (a) the revolutionaries, (b) the secessionist, (c) the nationalists, (d) the authoritarians, (e) the populists, (f) the democrats, (g) the majoritarians, (h) the illiberals, or (i) the liberals—or (15) as the kind of (a) an actually existing political association, (b) a taken-for granted ethnic nation, or (c) the ultimate beneficiary of extra-constitutional constitutional transformations.

In its latter incarnation – as I argue in section 2 – the people exists not simply as a political community, but as a political community of a particular kind: co-existing with other political communities at different scales, as well as with politically salient communities of other kinds, oftentimes juxtaposed to a qualitatively different, yet utterly familiar form of human sociality: that of society. When it comes to the people as the imaginary holder of sovereignty in actually existing representative democracies, what ends up shaping its character are not only the preconceptions we have about the character of a society whose pluralism and immanent diversity it oftentimes appears to be threatening, but also a format in which actually existing representative democracies government appear in the world: not as abstract constitutional models, but as sovereign, or would-be sovereign states. In order to qualify as territorial, as section 3 explains, such states must be imagined not just as indivisible and juridically detachable but also administratively centralised: i.e. governed from within the confines of a single, capital city. Against it as a backdrop, the people appears not just as a politically unified whole whose members are ready to defend its way of life against its enemies’, but also as an entity which is constitutively split, internally: between those who face off each other from their respective positions in the urban cores and non-urban peripheries, respectively. The same polarity, as section 4 suggests, makes it possible to think of the people as a revolutionary agent whose constituent power first manifest itself in one of the urban centres before it spreads on to the country’s peripheries. In contrast with the repertoire of the moves that was on disposal to those who participated in urban uprisings before the advent of popular sovereignty the one that distinguishes urban popular revolutions prioritises the performances whose aim is to persuade the powerful onlookers that the revolutionary cause is just, as well as that the means chosen to accomplish it are, all things considered, reasonable (cf. Tilly 2000, 56). What follows from this is a question: Can the principle that began its historical ‘career’ by justifying the overthrow of an allegedly

90  Research handbook on the politics of constitutional law tyrannical monarch as well as the separation of the colonies he ruled over – and which were, for all intents and purposes, governed by an insufficiently representative parliamentary oligarchy – today be invoked to justify the overthrow of governments whose democratic credentials are not in doubt and whose representative character is not in question? An answer to this question, as section 5 suggests, hinges not on one’s notional commitment to popular sovereignty, but on the assumptions that one makes about the baseline dispositions and cognitive abilities of those who take part in urban uprisings and popular insurrections. While this answer doesn’t compel anyone to abandon their commitment to the ideals of popular sovereignty, it ought to, as section 6 suggests, provoke constitutional and other scholars to consider the meaning of popular government beyond Lincoln’s famous motto, ‘of the people, for the people, and by the people’. Rather as an allusion to a system in which the people ‘have’ constituent power, or in which the authority of government ‘originates’ in the ‘will’ of the people, the ‘popular’ in ‘popular government’ points to the class of governments whose baseline aspiration is to remain sufficiently popular among the population at large, and not simply to be not simply to be seen as authoritative or legitimate. What shapes the contemporary notions of popular sovereignty, section 7 concludes, are not only the background distinctions that make particular notions of popular government more or less attractive, but also the inclinations of professionally trained theorists, who, for the most part, remain preoccupied with the meanings of nominal concepts while neglecting the ways in which the connotations of those concepts end up being determined by the adjectives (which, in specifying their features or in determining their membership in broader categories, infuse them with meanings which they otherwise wouldn’t have) as well as by the suffixes which determine (which among them will be taken pejoratively, and which one approbatively).

2.

THE FIGURE OF THE PEOPLE AS A POLITICAL COMMUNITY

To speak about the people is to speak about the sole creator, the main beneficiary, and central protagonist of a popular form government: a form of government which doesn’t simply subscribe to the ideal of popular sovereignty but which also embraces its implications in practice. In order for its sovereignty to be taken seriously, the people must be imagined not simply as a body of those who, as ‘united, numerous, and committed’, have ‘the capacity to change things’ (Tilly 2000, 56), but also a body whose capacity to change things is realised in a single, triumphant act of will which brings about a radical transformation of an entire constitutional order. In order for this capacity to appear as genuinely inexhaustible, the collective that possesses it must be considered both as the historical founder of the ‘original’ constitutional order, as well as a potential founder, which, at any given moment, may substitute it with a new one, by exercising its constituent power in ways not foreseen by the provisions of extant constitution. In order to be understood both as the past creator of a historically existing constitutional order, as well as the potential creator of that order’s future substitutes, the people must be imagined as a community which is not only confined in space, but also extended in time: political only to the extent it is intergenerational. To those who accept this view, the only way in which a people can realistically exist as sovereign is in the form of an actually existing, historical nation. In the imagination of liberals

Popular sovereignty, constitutional democracy and political representations  91 those who approach its identity as populists and not just as nationalists, this nation will also appear as fully united, morally unimpeachable, collective body: collective do so on the basis of a dangerously deluded image of politics as a conflict between the forces of good and evil, which, in breeding contempt toward an ineluctably pluralistic and diverse character of civil society, makes representative liberal democracies more exposed to the risk of majoritarian tyranny. However else they differ, nationalists, populists and liberals have one thing in common: a belief in the need to envision the people as a political community’: a form of ‘social organization’, which ‘unlike all other never seems to have been referred to unfavourably (Williams 2014, 40). Rather than an allusion to ‘close personal interaction perceived absent from and endangered by the more abstract society’ (Walzer 1984) this community is better understood as a ‘model of order’ reduced to ‘speaking, not governing’ as its only activity (Kahn 1992, 1, 171). Such community differs both from the Latin communitas (which refers to the condition that unites those who under an obligation to repay a debt by performing the same sordida munera (Esposito 2010, 8), as well as from the historically prevailing notion of ‘community’ in English language, where it originally referred to those who, in sharing ‘common interests or occupations’ also tended to be ‘associated together by the fact of residence in the same locality’ (Williams 2014). Used interchangeably until the end of the eighteenth century, community and society parted ways once sovereignty turned into an exclusive property of a national community in the early eighteenth century. From then on, community and society function as ‘counter-concepts’, where the merit of one implies the demerit of the other. For much of that century, the role of the superior one belonged to community as the allegedly more authentically organic form of human society. While the fortunes of ‘society’ dramatically improved in the second half of the twentieth century (Stråth 2011, 2378–84) the character of its relationship to the people (qua political community whose existence is presupposed by the ideals of popular sovereignty) is yet to be confronted explicitly. Constitutional scholars refer to both, but they do so without asking: Is society the receptacle of political community – or are community and society two distinct forms of human sociality, separated by a ‘bright dividing line’ drawn by the institutions of the liberal state (Walzer 1984, 327)? Or are society and community just the sides of the same coin, with civil society as a ‘non-governmental part’ of a ‘democratic political community’ (Juviler and Strochein 1999, 440)? Or is society just another name for the people which has ‘recourse to revolutionary means’ of exercising its sovereignty (cf. Roznai 2018, 32)? The content of the answers to these questions will depend not only on the properties of the entities we think of as communities, but also on the properties of those we consider characteristic of societies. Historically, the ones designated as ‘open’ or civil’ played an important role in the rhetoric of anti-communist dissidents in a Central and Eastern Europe who used to widen support for their agenda by evoking a highly appealing image of everyday life: at arms-length both from the repressive apparatus of the state as well as from the disciplinary mechanisms of free market economy (and as such destined to appeal not just to those who were already sympathetic to Western capitalist democracy, but also to those who, even though they had no illusions about communism, were hardly enthusiastic about the virtues of free market capitalism). From the perspective of contemporary debates in constitutional theory, this form of society is best understood as the assumption that liberal constitutionalists feel compelled to make

92  Research handbook on the politics of constitutional law in order to be able to present populists not simply as misguided majoritarians but also as contemptuous anti-pluralists and would-be authoritarians. On closer inspection, its character as ‘free’ and ‘democratic’, hinges neither on a particular understanding of liberty nor on a particular interpretation of democracy but on the content of ideals, which those vested with the authority to interpret its meaning read into it on specific occasions: from ‘tolerance and broadmindedness’ to ‘pluralism’, ‘respect for different cultures’,1 and even enthusiastic acceptance of social ‘diversity’. Enshrined in the texts of national constitutions and international legal instruments, this ‘society’ functions as the reservoir of standards, from the perspective of which rights limitations must appear ‘necessary’ or ‘demonstrably justified’ in order to be considered prima facie constitutional. In contrast, a society which constitutional scholars describe as ‘liberal’ has a more directly obvious connection with the sphere of 'individual liberty, which, in turn allows the society at large to function as an incubator of creativity, the catalyst of innovation, and, eventually, as the engine of economic growth and prosperity (Teubner 2012, 12) the very thing that causes democracies to become ‘creative’, vibrant’, and ‘wealthy’ (Warren 2006, 394).

3.

THE FIGURE OF THE PEOPLE AND THE STRUCTURE OF ITS FRAME

The societies that scholars euphemistically refer to as open, civil, pluralistic, diverse, free, democratic, and liberal exist only as intensely regulated and mentally regimented across a variety of realms (public and private); spheres (social and economic); sectors (civil and business); zones (industrial and development); arenas (of contestation and of deliberation) and so on. However understood, their pluralism and diversity is always confined within the bounds of a modern, territorial state. Like community and society, the state is a modern ‘mode’ of ‘collective association’ (Loughlin 2010, 198). ‘[D]espite coming into existence contemporaneously with the societal mode of association’, the state is ‘an autonomous mode of association’, which ‘cannot be conceived simply as an instrument of society’ (ibid). At a more abstract level, their co-existence only make sense against the backdrop of a figure whose specific features bear the mark of three rudimentary image schemas: ‘top-down’, ‘in-out’ and ‘core-periphery’. Without the first, there would be no legal system as a unified system of norms, no notion of judiciary as a the hierarchically organised branch of government, and no notion of administration as a responsive, efficient and accountable governing apparatus. Without the second there would be no frame of reference that defines the limits to their authority, and within which that authority may be exercised comprehensively, and independently. Without the first two, it wouldn’t be possible to imagine representative democracy as a hierarchically organised and spatially contained framework of legal and political institutions. Without the third, however, it would not be possible to imagine that framework as it exists: in a territorial form, at the rank of a sovereign, or a would-be sovereign state. In order to qualify as territorial, the fragment of the earth’s surface within which such forms of government exist must be imagined as indivisible, detachable, administratively centralised, and, of necessity, infrastructurally capitalised: possessed of a government that not only has 1 See e.g. Hindyside v. the United Kingdom 1976 (ss. 49 and 176) or Nachova and Others v. Bulgaria 2005, s. 145

Popular sovereignty, constitutional democracy and political representations  93 a ‘seat’, but of a government whose seat is almost always located within the confines of a single capital city, thus perpetuating one of the oldest forms of political antagonism, between ‘country’ and the ‘city’. As is the case with community and society, their perception as morally superior or inferior vis-à-vis each other kept changing over the course of history. In a broader, more panoramic perspective, the country appears both as a place of backwardness, ignorance, and bigotry as well a place of wholesomeness, peacefulness, and moral integrity, just as the city figures both as a beacon of open-mindedness, tolerance and civility as well as the place of alienation, pretence and spiritual vacuity. Today, their dichotomy is taken for granted both by the self-proclaimed liberals, as well as by those whom they refer to as populists, and who in their imagination appear as keen to profit not simply from the fantastic image of the people (as a fully united body which finally confronts the exploitative elites) but also from the resentments that the allegedly narrow-minded, inward-looking and culturally backward voters from rural and semi-rural peripheries have toward the more open-minded and culturally progressive residents of major cities. Rather than a temporary disturbance in the otherwise ‘empty place’ of democracy, the polarity between the core and the periphery is an assumption which unites both those who bemoan the growing polarisation in Western liberal democracies, as well as those who allegedly exploit it. Against it as a backdrop, the people appears not just as a politically unified whole (whose members are ready to defend its way of life against its enemies) but also as an entity which is constitutively split, internally: between those who face off each other from their respective positions in the urban cores and non-urban peripheries, respectively. Predictably, this brings us back to the seemingly ineradicable, definitional questions: Who counts as the people, and what counts as the manifestation of its constituent power? Who is authorised to take initiative in the name of the people but without the formal authorisation by the people after the overthrow of the former regime, and set the constitution-making process in motion? How shall a nation, numerous and dispersed, act in a coordinated fashion? Whatever they may be in particular, the range of intelligible answers to these questions will be prefigured by a long-standing theoretical distinction: between constituent power and constitutional form. On a currently prevailing view, each term logically presupposes the existence of the other, with both sides in the dichotomy at the same time chronologically prior and posterior to each other: with constitutional form determining the identity of a subject vested with constituent power whose exercise, in turn, determines the specific content of its constitution.

4.

CONSTITUTIONAL FORM AND THE NATURE OF CONSTITUENT POWERS

Depending on the level of generality at which we seek to define it, constituent power may refer to: (a) the notional ability of all peoples to change the terms of their political existence; (b) the demonstrated transformative capability of historically existing peoples over the course of time; or (c) the projected ability of actually existing peoples to transform a constitutional order under which they live, in a particular place and time. In theory, the same constituent power that sets that sets both chains of events in motion, is the same power that brings them to their successful completion. Such a sequence may start with those who after the initial gathering continue to assemble in the same place, and whose assembly, due to an unforeseen catalytic even, ends up triggering further acts of rebellion

94  Research handbook on the politics of constitutional law which, over time lead to the paralysis of the most important regime institutions, and eventually, to the collapse of the regime as a whole. Or, in an alternative scenario, with those whose assembly – after having quickly snowballed into a popular uprising of massive proportions – soon thereafter compelled the leaders of the regime to abandon the seat of the government, and effectively surrender power to whoever happened to be the most organised part of, by that time, a nation-wide revolutionary movement. In practice, what triggers the chain of events which will eventually culminate in the adoption of a new constitution is not simply an event which (like an act of god) appears ex nihilo, but the one which involves an ‘obvious and unchallenged presence’ of those who – once they’ve assembled in the streets or city squares – proceeded to engage in what Carl Schmitt refers to as ‘acclamation’ (Schmitt 1988, 23). What remains unclear is how to get from that event to a moment in which the people at large – either directly, or through its representatives – begins to participate in a process which, on all accounts, ought to end with the adoption of a document whose provisions inaugurate a radically different constitutional order. What needs to happen, to put it differently, so that a people, which otherwise exists as a disorganised multitude, become an entity capable of exercise constituent power? Which among the still existing constituted powers will typically be the most suited to initiate the process of constitution-making after the overthrow of the former regime? What this involves in particular – in situations akin to the one that inspired Abbe Sieyès famous pamphlet – is to take initiative to transform an administratively regimented multitude – scattered, in Sieyès case, across the 40,000 parishes of France – into an entity capable of exercising constituent power by delegating it to an assembly whose exclusive task is to produce a new constitution in its name (Sieyès 2003, 105). For Sieyes, the most obvious candidate for that role was no one else but the King himself, but what brings the initial outburst of constituent power to its successful conclusion in reality has less to with the initiatives of individual office-holders, and much more with the refusal of the most powerful constituted power – the Army – to resort to violence for the sake of the regime’s survival. In that context, Schmitt’s claim about the ‘obvious and unchallenged presence’ of those assembled and engaged in the act of acclamation is better understood as a conviction about the likelihood of their act being ‘taken for granted’ as a three-fold signal: (1) to those in power that the magnitude of the obstacles they will need to overcome in order to assume full control of the events may already be, or is about to become insurmountable; (2) to those who sympathise with the uprising that the cost of openly rebelling against the regime is smaller than ever before and more bearable than they may have initially though; and (3) to those who defend those in power, that the time to make a fateful, but inevitable choice has finally come: use violence necessary to suppress the rebellion and accept the moral and existential risks that come with that choice, or refuse to act in service of a highly unpopular regime. From this perspective, the concept of constituent power hinges on a belief that those confronting that choice will choose well, and side with the people either due to the humanity of the rank and file who ‘will decide that they can’t stand this anymore’, and, at a fateful moment ‘throw down their weapons’ and take the side of the people (Arendt 1963, 131); or due to similarity between the class structure of the armed forces and the class structure of the people

Popular sovereignty, constitutional democracy and political representations  95 at large has a potential to turn the army as a whole into the ‘true forerunners of revolution’ (Le Monde, 4 November 1975).2

5.

THE FIGURE OF THE PEOPLE AND THE LIMITS OF ITS SOVEREIGNTY

In order to be seen as a collective capable of establishing a new political order, those participating in such uprisings will need to see themselves not as partaking in a god-like mystical body of the people, or as the members of the same national community, but rather as the members of the same, long-oppressed, downtrodden people vested with a right to not only abolish any government which became destructive of the ends for which it was instituted, but also to institute a new one in accordance with the principles which ‘to them’ – as the American Declaration of Independence states – ‘seem most likely to effect their Safety and Happiness’. Though it vests in the people, this right is not unqualified. The legitimacy of its exercise hinges on the assumptions about the basic temperament of the people, as well as about its cognitive abilities. Rather than accidental to our understanding of popular sovereignty, those assumptions continue to shape the preconceptions that most people who still believe in this ideal have about the legitimate and illegitimate forms of its exercise. Elaborated upon by John Locke in sections 223–225 of his Second Treatise, the following three appear to be of particular importance. First, rather than being easily swayed by the rhetoric of would-be autocrats, ordinary people are, by and large, reluctant to support constitutional changes that alter the constitutionally envisaged method of office-succession, let alone an entire system of government (Locke 1993, 228). Second, rather than being easily radicalised against an essentially decent government, ordinary people are, by nature, risk-averse, law-abiding, creatures of habit. Rather than to rise up against the government ‘upon every little mismanagement in public affairs’, ordinary people are far more likely to bear their government’s incompetence, mistakes, and abuses ‘without mutiny or murmur’ (ibid, 229). And finally, rather than being particularly vulnerable to misinformation, ordinary people can be trusted to be the adequate judges of their overall situation, so when they do eventually ‘quit’ their constitution by extra-constitutional means this will be only because ‘a long train of abuses, prevarications and artifices’ made ‘the design’ of their rulers ‘visible’ to them, compelling them open their eyes about ‘whither they are [ultimately] going’ and finally recognise the character of a government they ‘lie under’ (ibid).

The interest in constituent power is a recent phenomenon. Out of roughly 14,300 search results for the term ‘constituent power’, which appear on google scholar, 5% appear within the period between 1945 and 1990, another 5% within the almost five times shorter time period, between 1990 and 2000, while the overwhelming number of search results for this term – a striking 75% – appear between 2010 and 2020. By way of comparison, out of roughly 100,000 search results for the expression ‘the separation of powers’, 50% appear after 1990, with roughly 13% in the period of 1990–2000, and 17% in the periods 2000–2010 and 2010–2020, respectively. However unreliable, these results indicate that the almost exponential growth of interest in constituent power among the students of constitutional law is genuine (and not simply a reflection of other factors, such as the increase in the volume of published material, which would have similarly affected the frequency with which other comparable terms appear online, as well. 2

96  Research handbook on the politics of constitutional law Though these assumptions still appear to inform the attitudes of Western citizens toward mass uprisings against the regimes in the Middle East, Central Asia, or Eastern Europe as genuinely popular, they no longer seem to play much of a role in shaping the attitudes with which those citizens approach the mass displays of dissatisfaction with their own governments. When it comes to the attitudes toward the large-scale manifestations of popular dissatisfaction with their own, notionally liberal and democratic government, Western citizens appear to be divided between those willing to take large scale displays of dissatisfaction as indicative of the mental state of the people at large – and those who will see them as motivated by ulterior motives, foreign masters, evil intentions, distorted perceptions, and naïve assumptions. Between those, that is, who are more likely to approve the demands of those on the ground because they, like Locke, continue to imagine ordinary people as inert, their suffering as real, those who cause them to suffer as identifiable, those who claim to have identified the perpetrators as competent, and of the past attempts to persuade those perpetrators to change their ways as genuine3 – and those who will be extremely sceptical of such claims because they will see them as failing to take into account the complex nature of modern societies in which it is no longer possible to trace the long train of abuses and usurpations back to a single source (especially not in a country in whose institutions are designed to ensure that no such source becomes possible). The battle between the two approaches will always hinge on the choice of words, and their definitions.4 What informs the differences between the two at a deeper level, however, are two equally incompatible understandings of popular sovereignty: one, which sees it as an apology for the forms of government which may at any point in time be substituted by those which the people at large appear to think of as better; and popular sovereignty – and another, which sees it as an apology for the forms of government which are worth preserving, not as the embodiments of popular will, but as the orders of liberty – which, on an even more elementary

That they’ve light of the ‘peaceable methods’ they’ve ‘ineffectually used’ to remedy the ‘miseries’ they’ve endured – as Tom Paine put it anticipating the rhetoric of the American Declaration of Independence) they cannot be expected to continue suffering under the ‘cruel disposition’ of existing government (Paine 2003, 42). 4 Consider the following. In what sense did those who participated in the events on Capitol Hill on 6 January 2021 rebel against an established government (as a whole) if the most damning allegation of what they were trying to achieve was to block the transfer of power, scheduled to occur within one of its branches? How does one rebel against a government in a system in which, on its own self-understanding, no single branch possesses enough authority to speak for the government as a whole? If it’s true – as the analysis conducted by the authors affiliated with The Chicago Project on Security and Threat suggests – that that overwhelming majority of suspects had ‘no connection’ either to ‘existing far-right militias’, or ‘white-nationalist gangs’ or ‘other established violent organizations’ (Pape and Ruby 2021) is it more reasonable to conclude: (a) That the overwhelming absence of extremist leanings among those who took part in such crowds simply demonstrates how insidiously extremist they really are (as the authors of the study themselves conclude)? Or (b) that the intentions we can impute to the crowds whose participants are overwhelmingly non-extreme are probably not particularly extreme themselves? Whatever the answers to these questions happen to be, they will depend on: (a) the mental pictures of government and the connotations it acquires once qualified as ‘established’, (b) the mental pictures of rebelling, and the connotations that picture acquires once (dis-)qualified as ‘far-right’, ‘patriotic’ or something else; (b) on one’s sense of whether among all those who found themselves caught in the event, there existed a critical mass of those who correspond not only to (c) the mental image of how those who ‘resist’, ‘revolt’ or ‘rebel’ against lawful authority typically look like, but also on the words used to shape our preconceptions about their motives, attitudes, inclinations and intentions. 3

Popular sovereignty, constitutional democracy and political representations  97 level, reflects a difference between popular sovereignty as a reference to an actually existing state of affairs where an actual political community enjoys real sovereignty and popular sovereignty as an umbrella term for an ever-growing set of regulative ideals whose ability to motivate intended behaviours would be greatly enhanced if those to whom they ostensibly apply thought of themselves as belonging to a political community who govern themselves, in perpetuity, as free and equal fellow citizens. Those who affirm the presence of the people in the imaginary of liberal democracy may do so for a variety of reasons. For some, the ideals of popular sovereignty are ‘simply unthinkable to deny’ due to the role they play in the popular imaginary of democratic legitimacy (Sajó and Uitz 2017, 56). For others, the ‘[i]nclusiveness in the “fictional dimension of the collective” helps keep our dissent vigorous but constructive and, in doing so, also ensures that political conflicts don’t spiral into “civil war”’ (Urbinati 2006, 134). Others, such as Ronald Dworkin assume that a political community, such as the people, must be presupposed in order to instill a sense of impartiality into the behaviour of officials toward citizens, and a sense of mutual reciprocity into the behaviour of citizens toward each other (Dworkin 1986, 175). Such a ‘depersonalised’ figure will more easily be imagined both as the ‘agent of wealth allocation and redistribution’, as well as ‘less capricious, longer-lived, and more reliable’ – and, by implication, attractive – ‘debtor’ (ibid), which is exactly what a cash-hungry nation needs in order to finance essential nation-building projects (Holmes 1996, 155). Though it’s true that the figure of the people continues to play an important role in the phraseology of the ruling classes in some places (such as in the US after presidential elections) where it appears in the form of the pleas to ‘come together as one people’, it is still not ‘not obvious’, as Richard Tuck correctly observes’, ‘why one would want a more robust notion of national identity in order to meet [what are essentially] pragmatic objectives’ of sovereign peoplehood? If so, it’s not unfair to ask: If police forces in monarchies such as the UK act not simply more responsibly and impartially but also far less cruelly and abusively in their encounters with ordinary citizens than those in many of the republics around the world (including the US), shouldn’t those who’d otherwise be inclined to agree with Dworkin reconsider the wisdom of their enthusiasm for the ideals of popular sovereignty? Likewise, should those who think of popular sovereignty as ‘unthinkable to deny’ continue to do so if the demands that arose in the context of the months-long protests against racism and police brutality in the US made no use of its name? Is the fictionally existing people a ‘genuine response to a major theoretical difficulty’ – to put it more generally – or just a ‘means to counter mass politics’ (Tuck 2016, 265)? Why is it important – to put it differently – to conceive of such actors, actions, and situations as either fictional or as factual (and not the other way around) – or in any way at all? In order to answer this question in a way that doesn’t reintroduce the figure of the people through the back door, we first need to consider what makes things ‘popular’ more generally.

6.

POPULAR GOVERNMENTS (BEYOND THE PEOPLE)

‘Popular’ is something that appears ‘with appreciable frequency and over long durations’ (Bourdieu 2001, 35). This makes it not only hard to ignore, but also difficult to evade, or unwise to resist, or reject: which is why even the scholars most concerned with the threat that populism poses for liberal democracy make sure to stress that it cannot survive without

98  Research handbook on the politics of constitutional law ‘popular commitment’ and ‘popular consent’ (Huq and Ginsburg 2018, 245; Holmes 1996, 10). In another sense, ‘popular’ is a reference to the fact that oftentimes something will be well-liked and widely supported because it is well-deserved: popular-because-they-deserve-t o-be-popular. not because they’ve been dumbed-down, or rendered simplistic, but because they’ve been usefully simplified; not because they’ve been expressed in vulgar terms, but because they’ve been articulated in an honest and straightforward manner; not because they are cheap and crude, but because they are quickly accessible and easy to use; not because they are vulgar or plebeian, but because they can be enjoyed by everyone. The popular character of popular government hinges not on its verbal commitment to the ideals of popular sovereignty, but on how it behaves when confronted with events that indicate that it might no longer be enjoying the support of the people qua population. What makes a popular government popular, in more specific terms, is its readiness to interpret massive displays of popular dissatisfaction as a reason to test the degree of popular support it enjoys ahead of schedule, by holding fresh parliamentary elections, and accepting the outcome, which would either renew its mandate to govern, or bring in a government supported by the majority of the people. A government that acts in such a way submits not to the ‘will’ of a sovereign people, but to the ‘verdict’ of the people at large. What passes as popular will is instead better understood as a name for a signal generated at the end of the filtration process, whose parameters are determined by an algorithm which states that if [%voters] > 50%+1 ‘yes” and if [turnout] > [specified % of all voters] then ‘yes’ = popular ‘will’. On this view, the institutions involved in the realisation of popular referendums may be imagined as participating in the operation of a country wide audio equaliser, whose task is to turn the noise from the ground into a simple and clear vox populi: first, by taking the analogue noise of ever-shifting attitudes, beliefs, and preferences of the people at large by forcing them to leave their mark on the ballots; then, by aggregating the simplified messages which the little ‘x’s on the ballots conveyed, and, finally, by running them through the above algorithm, in order to get a simple signal which will then be picked up, and acted upon by other institutions. Historically the closest approximation of popular government on this understanding is parliamentary government. To describe parliamentary democracy as a form of government in which government ‘stays in power’ as long it enjoys the confidence of the parliament, is not inaccurate but is misleading because it conceals the fact that while in power, the government has a moral, and in many cases even constitutional, obligation to act in accordance with a plan of action, presented to the parliament and the general public in advance. In parliamentary monarchies, such as the UK, Canada, or New Zealand, this plan is typically presented to the parliament in a speech which the monarch him or herself delivers ‘from the throne’. In parliamentary republics, however, the content of that plan is typically delivered not by the president of the republic but by a person who is substantially only a candidate for the office of the head of government. The purpose of a majority vote which the parliament is constitutionally compelled to take after the end of that speech is to demonstrate not simply whether the candidate for the office of the prime-minister enjoys sufficient support but also to demonstrate whether such support exists for the ministerial appointments they propose, and – most importantly – for a comprehensive, concrete and elaborate programme of action in the long-term interest of the country as a whole. Things couldn’t be more different when it comes to the institutional position of an ideal-typical chief executive under a presidential system of government: the American presi-

Popular sovereignty, constitutional democracy and political representations  99 dent. The imaginary ‘mandate’ which the American people bestows upon him as a winner in an electoral contest is a mandate to speak for the nation as a whole, not a mandate to govern. The root of the difficulties this actor has when it comes to 'accomplishing [his] agenda’, or getting ‘support to implement [his] policy’ (Mainwaring 1990, 162) lies in a constitution that denies him not ‘plenary lawmaking authority’ (Ackerman 2000, 650) but plenary authority to outline a comprehensive plan of action, seek support for its terms, and – on the basis of the support received, take measures toward its implementation. In contrast with the confidence which the head of government receives from the parliament, the pseudo-constitutional ‘mandate’ which the people allegedly bestows upon the American president as a winner in an electoral contest is merely a mandate to speak for the nation, not a mandate to govern the country as a whole. While he may plead, propose, exhort, demand, veto, appoint, and command, this actor has no authority to formulate, direct, and oversee the realisation of a comprehensive plan of action in the interest of people-at-large and for the good of the country as a whole (cf. Riggs 1997, 267). The last point, however, comes with a caveat: While the text of the American constitution ‘tends to undercut the pretensions of any particular branch [of the government] to serve as the uniquely privileged spokesmen for the People’ (Ackerman 2010, 70) the notion of presidential mandate which, in the eyes of some resulted in the dangerous pseudo-democratisation of the American presidency, also allowed the occupants of that office to play a ‘central role in expressing and consolidating popular demands for change’ (Ackerman 2010, 7) and in so doing shape the identity of the American people over time.

7.

POPULAR SOVEREIGNTY: ITS TERMINOLOGY AND PHRASEOLOGY

In American political discourse, that people appears not only as an electorate that bestows a ‘mandate’ on the newly elected chief executives to speak on behalf of the entire nation, but also a traumatised body, whose wounds are in need of ‘healing’ in the aftermath of divisive or disputed elections; whose members in times of crisis, instinctively ‘rally around’ presidents like a warrior tribe around its chieftain ahead of a decisive battle. At a more general level, the people is situated in a broader web of conceptual distinctions, suspended between: (1) the people as the collection of citizens and the people as a political community; (2) the people as a political community which co-exists with other communities and the people which as a notionally sovereign political community exists as a permanent threat to the pluralistic character of democratic society; (3) representative democracy as it actually exists, in the form of a territorial state and representative democracy as a form of popular government; and (4) popular governments as republics and monarchies, and popular governments as presidential or parliamentary. The meanings of those terms depend not only what we mean by government, monarchy, republic or a democracy, but also on the connotations of the adjectives that modify their meanings. While scholars appreciate the polysemy of concept-nouns, they tend to ignore the adjectives that provide them with politically salient connotations, and the suffixes, which make those connotations positive or negative (and which, nowadays, make it more natural to speak of politicians as more likely to be popul-ist, than simply popul-ar, making those that are popular easy to accuse of being authorit-arian, unlike those who will be authorit-ative as long as they are ‘democratically popular’) (Issacharoff 2015, 147).

100  Research handbook on the politics of constitutional law Rather than being made more specific by the nouns with which they associate, it is the adjectives that determine the content of the expressions that result from their union. The kinds of things those adjectives refer to are not the same. A ‘liberal democracy’ is a democracy which is liberal, as opposed to illiberal. A popular government, however, is not a government which is popular as opposed to unpopular, but a government which we, formulaically, take to be ‘of the people, for the people and by the people’. The same is with popular sovereignty. While we simply take for granted that ‘popular sovereignty’ must refer to the sovereignty of the people, it would never occur to us to assume that those who speak of ‘common decency’ or ‘political community’ refer to the decency of the commons, or the community of politicians. The fact that scholars across disciplines almost always speak of ‘democratic institutions’ and ‘authoritarian regimes’ and almost never of ‘democratic regimes’ and ‘authoritarian institutions’ is indicative of more broadly shared preconceptions about what institutions as such and regimes as such are like: precarious and valuable enough to be worthy of respect (when it comes to the first) and oppressively intense and excessively personalised (when it comes to the second). Hence the ‘crisis of democratic institutions’ (instead of say, the ‘crisis of democratic governments’, or ‘states’, or ‘mechanisms’, or ‘organs’). Noticing the changes in the frequency with which they appear in print and other media, as well as their growing or diminishing presence vis-à-vis each other, tells us something. It is indicative not simply of linguistic fashions, but also of broader and deeper attitudes toward particular ways of acting and being in the (political) world. Speculating about the drivers of such changes over time is therefore a perfectly legitimate scholarly activity, which plays an important role not only in the preliminary phases of thinking about the object at hand, but which also deserves to be put on record, together with its other outcomes. When it comes to the terms which suffixes such as -ism, -ist, or -ian ‘enrich’ with pejorative connotations, their immediate rhetorical purpose is to make those who would otherwise be more sceptical about the substance of the assertions they convey to accept them as a foregone conclusion: be those assertions about someone’s excessive or obsessive concern with something which is otherwise commendable, acceptable, or tolerable (as with statism, nationalism, libertarianism, or authoritarianism,); one’s failure to make reasonable use of their mental or moral faculties (as with conformism, fundamentalism, dogmatism and opportunism), or some other moral flaw or reproachable state of mind (as in the case of illiberalism, majoritarianism, extremism, or Schmittianism). Against the backdrop of the actual struggles on the ground, the rhetorical objective of such terms is always two-fold: exhortatory vis-à-vis the external, and disciplinary, vis-à-vis the internal audiences – aiming, on the one hand, to persuade those who are still undecided to join the right side in the conflict between the forces of good and evil, while at the same time seeking to ‘quiet doubt on the side on which the arguments are used’ (Arnold 1937, 169, 381). The key to the rhetorical success of such terms seems to lie in the ability of the suffixes to allude not only to the notoriety of a sufficiently well-known type (a disciplinarian, a dogmatic, a nationalist) but also in their ability to hint at the sufficient amount of cognitive effort which must have been invested in diagnosing the presence of the traits that make a denounced individual the species of a reviled -ian, or an -ist – which together make it easier to denounce those who would dare to challenge their accuracy as disrespectful, ill-intended or simply ignorant, uncivil, disrespectful, ill-intended or ignorant. Very often such qualifiers belong to more complex, compound expressions whose own connotations can only be properly appreciated by taking into account the context from which they

Popular sovereignty, constitutional democracy and political representations  101 emerged, and in which they developed over time. So while it is possible that those who find it hard to imagine ‘[p]opulist movements [as] expressing disgust with parliamentary democracy’ as odd (Crouch 2019, 125) may do so because they have populist or illiberal inclinations themselves – or because they are suspicious of the ways in which professional academics speak of the political movements they don’t like – it is also possible that they find that proposition incredulous because the words for ‘disgust‘ in their native languages refer only to the experiences of bodily revulsion caused by smells, tastes, and sights, and not – as it is the case in English – to bodily revulsion caused by a particularly intense experience of moral reprobation. An even better example is the notorious ‘popular passions’. In the corpus of English language, ‘popular passions’ appear ten times more frequently than ‘popular ire’, and twice as frequently as the ‘wrath of the people’, whose cognates play a much more prominent role as the go-to references for mental states of large groups of people in other languages: in German where ‘Zorn des Volkes’ appears 572 times more frequently than politically near-meaningless ‘populäre Leidenschaften’; or in Russian – where ‘популярные страсти’ don’t even appear among the search results of the Russian-language corpus for the same period – but where the go-to word for the mental state that accompanies the mass manifestations of popular discontent is, like in German, the almost literal translation of the wrath of the people: ‘гнев народа’. Unlike the increasingly quaint and unserious uses of ‘wrath’ in English (‘The Wrath of Khan!’) both ‘Zorn’ and ‘гнев’ are still understandable and acceptable ways to describe the mental states of large groups of people in German and Russian. Unlike pretentious references to ‘popular passions’ that dominate in more intellectual discussions about the state of liberal democracy in Anglophone countries, ‘Zorn’ and ‘гнев’ make no subtle allusion to the debased origin of those ‘consumed’ by (animalistic) ‘passions’, (as in English) nor do they leave any doubt about the political manifestations of a ‘wrath-like’ state of mind. What ‘Zorn’ and ‘гнев do make conceivable is the same thing which Locke took for granted, but which contemporary references to ‘popular passions’ coyly dispute and malign: that there may be a good reason for the mass outbursts of popular anger; that even those that involve physical violence and material destruction may, given the circumstances, be justified. This, perhaps, is why it took a German-born Hannah Arendt to articulate the assumption which both ‘Zorn’ and ‘гнев’ share, and which Anglophone ‘passions’, ‘grievances’, and ‘resentments’ dismiss or discourage: that those who act in rage never do so against the ‘conditions that seem unchangeable’, but only when they have ‘a reason to suspect’ (Arendt 1963) that the state of affairs they find intolerable could be changed after all, despite the claims of those who’ve been telling them otherwise. Incidentally, a rather similar kind of ‘rage’ appears to have been be crucial in the triggering of more recent revolutions: provoked not by the intensity of state repression or the magnitude of government’s corruption or by abstract yearnings for political freedom, but by the infuriating brazenness with which those in power attempted to falsify the electorally manifested will of the people (and which those who otherwise worry about the outbursts of popular passions enthusiastically approve of).

8.

CONCLUSION? AMERICANISED DEMOCRACY AND ITS (UN)POPULAR SOVEREIGNTY

‘The people’ is a theoretical concept – there seems to be no doubt about that. That it is a concept, is almost universally agreed by intellectually preoccupied or professionally

102  Research handbook on the politics of constitutional law invested: participants in ‘debates’, members of ‘communities’, contributors to ‘fields’, and all others who approach the questions of institutional authority and regime legitimacy in a more systematic, reflexive, institution-minded, and constitution-appreciative fashion, and for whom the people figures as either: (a) a ‘We’, the collective author of a national constitution; (b) the ultimate source of authority in a constitutional order as a whole; (c) a collective vested with a right to self-determination; or (d) the collegial organ of constitutional order called the ‘electorate’ according to the concept of the people by Hans Kelsen, or some other conception of what the people is, and what its attributes are. But the meaning of the people hinges on the meaning of representative government, which in turn hinges on the meaning of political representation, in general. Since representation presupposes the absence of that which is being represented, representative government must presuppose the impossibility of knowing the concrete identity of the people, as well as the impossibility of correctly ascertaining the content of the people’s will. From this it follows that representative democracies only work well ‘when no claim to represent the people goes uncontested’ (Garsten 2012, 109); the figure of the people that best coheres with this notion of democracy is both absent (from the seat of power) as well as abstracted (from its concrete manifestations). On second look, this view is both contradictory as well as counterintuitive. Representative institutions will only be able to represent the people as actually absent under the assumption that it is actually existing as concrete (just as the people that exists in the abstract could only be represented as absent abstractly). Whether animate or inanimate, the object of representation – be that an apple on a table, or a person sitting in a chair – may be very much present during the process of representation, and the results of the representative process (in this case painting) may bear a greater or lesser likeness to the original. The fact that the content of representation depends on the technique, medium, and the frame of representation doesn’t mean that the object of representation doesn’t concretely exist. Rather than the product of an essentially unknowable, abstract people, a constitution which is adopted for a territory that includes more than one nation will be more likely to include power-sharing arrangements or the mechanisms of minority representation. If regions predominantly inhabited by other groups are not included within its boundaries, the identity of the people will inevitably reflect the identity of the majority nation. If the population that lives within its boundaries is more ethnically, religiously, or culturally diverse, that identity will be more likely to be recognised as a ‘civic’, ‘pluralistic’, or ‘multinational’; the more expansive its territory, the greater the likelihood that it will be organised as a federation, and so on. Oscillating between popular sovereignty as a normative frame (for the evaluation of the legitimacy of actually existing (il)liberal democracies) and popular sovereignty as a descriptive reference (for the situations in which an actually existing collectivity called the people enjoys real sovereignty) contemporary scholars ignore not only the context from which those notions arose, but also the context-specific character of other, equally ‘culture-bound’ notions, that render them intelligible. Reflective of their Anglo-Saxon origins most such notions will also bear the mark of distinctly American preoccupations and anxieties (such as, for instance, those that are aroused by the notion of ‘popular passions’).5 When it comes to other ‘culture-bound’ concepts (cf. Sartori 5 For ‘the dangers of conceptual Anglocentrism in human sciences’ in general see Wierzbicka (2014).

Popular sovereignty, constitutional democracy and political representations  103 1970, 1050) such as ‘civility’, ‘negotiation’ or ‘compromise’, they might be better understood not as ‘crucial’ to ‘pluralistic democracy’ (Mansbridge and Macedo 2019, 73) but rather as the context-sensitive recommendations about how to behave in order to minimise the risk of governmental ‘shutdowns’, legislative ‘gridlocks’ and other institutional pathologies which are virtually unknown beyond the confines of the US. Rather than the repository of globally applicable normative ideals, the content of the concepts such as ‘civility’, ‘compromise’ or ‘community’ are best seen as reflective of their authors’ attempt to provide constructive answers to the political challenges, institutional dysfunctions, and moral failures intrinsic to one, or perhaps few, definitely not all, ‘pluralistic democracies’. This is something which those who maintain an interest in the foundational concepts of nominally ‘liberal’ constitutionalism might want to keep in mind. While it will make sense for the mere adoption of an important piece of legislation to count as a legislative ‘accomplishment’ in a regime in which a staggered electoral schedule makes legislative majorities hard to come by, the idea that a successfully adopted piece of legislation could ever count as an ‘achievement’ simply by virtue of being adopted; or that this ‘achievement’ can be attributed to the head of executive alone; or that the totality of such achievements can, should or will be the measure of that official’s overall ‘success’; or that there is a preciously memorable aspect of these achievements that will count as their legacy, or that the pursuit of that legacy may legitimately be prioritised at the expense of the projects which at a particular point in time are in the best interest of the people at large, is completely alien to the logic of modern liberal parliamentarism.

REFERENCES Ackerman, Bruce. (2000). ‘The New Separation of Powers’, Harvard Law Review 113: 633–729. Ackerman, Bruce. The decline and fall of the American republic (Harvard University Press, 2010). Arendt, Hannah. Crises of the Republic (Houghton Mifflin, 1963). Arnold, Thurman, W. The Folklore of Capitalism (Beard Book, c. 1937, 2000). Bourdieu, Pierre. ‘You Said “Popular”?’ in Alain Badiou et al. (eds) What Is a People? (Columbia University Press, 2016). Crouch, Colin. (2019). ‘Post-democracy and populism’, The Political Quarterly 90:S1: 124–37. Dworkin, Ronald. Law’s empire (Harvard University Press, 1986). Esposito, Roberto. Communitas: The origin and destiny of community (Stanford University Press, 2010). Garsten, Bryan. ‘Representative government and popular sovereignty’ in Ian Shapiro et al. Political Representation (2012). Goddard, Cliff & Anna Wierzbicka. Words and Meanings: Lexical Semantics across Domains, Languages, and Cultures (Oxford University Press, 2014). Hamilton, Alexander, et al. The Federalist Papers (Oxford University Press, c. 1787, 2008). Holmes, Stephen. Passions and Constraint: On the Theory of Liberal Democracy (The University of Chicago Press, 1996). Issacharoff, Samuel. Fragile Democracies: Contested Power in the Era of Constitutional Courts (Cambridge University Press, 2015). Juviler, P. & S. Stroschein. (1999). ‘Missing boundaries of comparison: The political community’, Political Science Quarterly 114: 435–53. Kahn, Paul. 2016. ‘The Constitution and the United States’ Culture’ in Mark Tushnet, Mark Graeber & Sanford Levinson (eds), The Oxford Handbook of the U.S. Constitution (Oxford University Press, 2015). Kochenov, Dimitry. Citizenship (The MIT Press, 2019).

104  Research handbook on the politics of constitutional law Locke, John. Two Treatises of Government and A Letter Concerning Toleration Edited and with an Introduction by Ian Shapiro (Yale University Press, 1993). Loughlin, Martin. Foundations of Public Law (Oxford University Press, 2010). Mainwaring, Scott. (1990). ‘Presidentialism in Latin America’, Latin American Research Review 25: 157–79. Mansbridge, Jane & Stephen Macedo. (2019). ‘Populism and democratic theory’, Annual Review of Law and Social Science 15: 59–77. Pape, Robert & Ruby Keven. (2021). ‘The Capitol Rioters Aren’t Like Other Extremists’, The Atlantic, https://​www​.theatlantic​.com/​ideas/​archive/​2021/​02/​the​-capitol​-rioters​-arent​-like​-other​-extremists/​ 617895/​. Riggs, Fred W. (1997). ‘Presidentialism versus Parliamentarism: Implications for Representativeness and Legitimacy’, International Political Science Review 18: 253, 267. Sajó, András & Renáta Uitz. The Constitution of Freedom: An Introduction to Legal Constitutionalism (Oxford University Press, 2017). Sartori, Giovanni. (1970). ‘Concept misformation in comparative politics’, American Political Science Review 64: 1033–53. Schmitt, Carl. The Crisis of Parliamentary Democracy (MIT Press, 1988). Stråth, Bo. ‘Community/Society: History of the Concept’ in Neil Smelser and Paul Baltes (eds), International Encyclopedia of the Social & Behavioral Sciences (Pergamon, 20001). Teubner, Gunter. Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford University Press, 2012). Tilly, Charles. Regimes and Repertoires (University of Chicago Press, 2006). Tuck, Richard. The sleeping sovereign: The invention of modern democracy (Cambridge University Press, 2016). Urbinati, Nadia. Representative Democracy: Principles and Genealogy (University of Chicago Press, 2006). Roznai, Yaniv. ‘Necrocracy or Democracy? Assessing Objections to Constitutional Unamendability’ in Richard Albert & Bertil Emrah Oder (eds), An Unamendable Constitution? (Springer, 2018). Walzer, Michael. (1984). ‘Liberalism and the Art of Separation’, Political theory 12: 315–30. Warren, Mark. ‘Democracy and the State’ in John Dryzek et al. (eds), The Oxford Handbook of Political Theory (Oxford University Press, 2006). Wierzbicka, Anna. Imprisoned in English: The Hazards of English as a Default Language (Oxford University Press, 2014). Williams, Raymond. Keywords: A vocabulary of culture and society (Oxford University Press, 2014).

7. Liminal rights: sovereignty, constitutions and borders Audrey Macklin

1. INTRODUCTION Borders hover in a relation of both-and-neither to that which they separate (Nail 2016). This observation applies not only to territorial boundaries, but also to constitutional thresholds. The arc of rights-based adjudication before the Supreme Court of the United States (USSC), the Supreme Court of Canada (SCC) and the European Court of Human Rights (ECtHR) illustrate this liminality: Non-citizens are formally ‘inside’ constitutions insofar as enumerated rights apply to non-citizens unless explicitly stated otherwise. This formal inclusion is least contentious when the non-citizen is on state territory. The extraterritorial application of constitutional and human rights – even for citizens – remains unsettled. But territorial presence provides only a partial account of non-citizens’ relationship to rights protection, and it goes as follows: Secure access to territory is the contemporary version of the right to have rights, in so far as territorial presence replaces citizenship as the effective pre-requisite to the enjoyment of virtually other rights guaranteed by the state. Outside the domain of immigration law itself, constitutional and human rights jurisprudence has narrowed the zone of permissible discrimination between citizens and non-citizens (lawfully) present on the territory, though asylum-seekers and non-status migrants do not benefit from this trend to the same degree. Non-citizens may not always prevail in these challenges, but courts generally require reasoned justification for laws or practices that disadvantage non-citizens in comparison to citizens across a range of subject areas of state regulation and entitlements. The bare fact of non-citizenship does not excuse discrimination, or validate an infringement of constitutional rights. But laws and practices of exclusion and expulsion1 – the domain of immigration law - offer up no citizen comparators. It only applies to non-citizens.2 In the years after 9/11, some states of the global North, led by the UK, reinvigorated citizenship deprivation as a mechanism for converting birthright and naturalised citizens into aliens in the name of security.3 This, in turn, empowered the state to subject the targets of denationalisation to immigration law’s technology of deportation. Importantly, states opted for citizenship-stripping + deportation instead of simply restoring banishment as an additional penalty inflicted on citizens. States recognise the value of confining expulsion to non-citizens and avoiding the possibility of comparison. Exclusion refers here to a refusal to admit a non-citizen. Expulsion encompasses the various legal mechanisms for coercive removal from state territory, variously labelled departure, return, deportation and refoulement. 2 Immigration laws regarding sponsorship, employment visas, and smuggling/trafficking also discipline citizens who seek to sponsor, employ or provide humanitarian assistance to non-citizens. 3 Macklin (2014); Macklin & Rainer Bauböck, ‘Return of Banishment’; Lepoutre (2020); Boekestein & de Groot (2019); Fargues & Winter (2019); Weil (2012). 1

105

106  Research handbook on the politics of constitutional law Banishment’s association with medieval punishment would make it harder to sustain deportation as a banal administrative act. This inequality between citizen and non-citizen is an impossibly obvious, and obviously impossible locus for human rights scrutiny. It is obvious because immigration law instantiates and operationalises the inequality of the non-citizen.4 It is impossible because the equation of border control with sovereignty converts a mundane challenge to exclusion or expulsion into an existential challenge to the state. And so, immigration regimes remain distinctively resistant to constitutional accountability.5 The ancillary practice of immigration detention (on entry or as a prelude to expulsion) sometimes attracts more judicial solicitude; even as courts insist that immigration detention is civil or administrative, the functional similarity to incarceration as liberty deprivation is simply undeniable. The inequality of the non-citizen is also deeply racialised. The emergence of systematic border and immigration regulation in the late nineteenth century is enmeshed with imperial regimes and settler colonialism. These not only operated according to racial logics, but also produced, perpetuated and circulated those logics socially, politically and economically on a transnational scale.6 The jurisprudence of immigration exceptionalism cannot be severed from race and racial anxiety, or from the structural impact of nineteenth century colonialism on the contemporary world order. The origin story continues to echo in current migration technologies, even when framed in neutral-but-coded idioms of security, management, self-determination, cultural difference, or fiscal/economic benefit. Linda Bosniak offers personhood versus citizenship as a useful analytical lens for understanding borders, status and rights in the United States constitutional context.7 I approach similar dilemmas through the concept of liminality: As with all bordering exercises, constitutional interpretation is doomed to arbitrariness and indeterminacy in drawing lines, and nowhere is this starker than in jurisprudential attempts to delimit the scope and application of constitutional rights for non-citizens seeking entry or resisting expulsion. The currency of the term ‘immigration exceptionalism’ broadly captures the experience of non-citizens who claim that exercises of state power that would constitute rights violations in other domains go unrecognised or discounted when they arise in the context of exclusion or expulsion.8 The ordinary rules of interpretation, of application, of reasoning by analogy from other subject areas, of attention to impact, and of rigorous scrutiny, recede from view when the subject is immigration law. The particular form of this deviation from conventional rights jurisprudence varies from one jurisdiction to another, but always misrepresents itself as an essential and timeless entailment of state sovereignty. The effect is to diminish or deny the human rights of non-citizens; an alternative formulation would describe the effect as diminishing or denying the humanity of non-citizens. This chapter opens with a brief account of the techniques through which USSC, the SCC and the ECtHR operationalise ‘immigration exceptionalism.’ Across legal orders, one can 4 Nationality laws create the distinction between citizen and non-citizen, and the more restrictive the nationality law, the larger the category of disadvantaged non-citizens. 5 For a compelling and nuanced account of the intractable contradictions posed within US constitutional jurisprudence and liberal theory, see Bosniak (2006). 6 See Achiume (2022); Macklin (2010), 40–67; Macklin (2005), 60–91. For a provocative invocation of racism in relation to citizenship, see Kochenov (2020). 7 See Bosniak (2010). 8 See Motomura (2000); Blum (2021).

Liminal rights: sovereignty, constitutions and borders  107 identify at least four types of harms inflicted by exclusion or expulsion that non-citizens have repeatedly argued as rights violations: discriminatory exclusion; expulsion to persecution, torture, or death; expulsion of a person who is functionally rooted in society, usually on grounds of non-status or loss of status; family separation through exclusion or expulsion of close kin. Individual cases may combine more than one type of claim, and may include detention on arrival or as prelude to removal. In one sense, it is a story of sameness because the doctrines all arrive at more or less the same destination. In another sense, however, reading different courts against one another offers an opportunity to denaturalise the doctrinal consequences that courts purport to deduce from sovereignty itself. The question I want to explore is how immigration exceptionalism is operationalised in a modern constitution. I do it through a reading of jurisprudence regarding exclusion and expulsion of the non-citizen that locates the non-citizen liminally between the inside of a constitution (as rights holder against the state) and outside it (as object of sovereign right). The first part adumbrates the different versions of immigration exceptionalism employed by three apex courts. I offer an outline of the analytical structure employed by each court that enables them to subordinate non-citizens’ constitutional rights to a superior claim of state sovereignty. The model of sovereignty invoked by these courts relies on a maxim extracted from eighteenth century Prussion jurist Emmerich de Vattel’s treatise on the law of nations.9 Next, I explain how this maxim has been misrepresented and instrumentalised by courts in the service of an unfettered sovereign prerogative. I argue that doctrinal iterations of immigration exceptionalism that trade on de Vattel’s maxim all commit a basic error. This formal mistake begets substantive and material consequences because it facilitates the exclusion and expulsion of non-citizens from the terrain of rights protection, and also because it corrodes the substantive logic of rights protection within an entrenched human rights instrument. A note of caution: By focusing exclusively on constitutional interpretation by apex courts, I do not attend to the ways in which courts sometimes impose rule of law constraints on the exercise of state power over migration through non-constitutional methods, such as statutory interpretation, common law procedural norms, or limits on the exercise of discretion. In these situations, courts can work within the fiction of legislative intent, and thereby avoid confronting the legislator’s or executive’s supremacy over migration decisions. Nor does this chapter address the jurisprudence of US or Canadian lower courts, or the national courts of European Council Member States. This caselaw may indirectly resist or subtly deviate from apex court jurisprudence, and almost certainly extends into fields of inquiry that have not reached the highest courts.

2.

IMMIGRATION EXCEPTIONALISM, SERVED THREE WAYS

The story of immigration exceptionalism is not a whodunnit. Everyone knows the culprit is sovereignty, conventionally understood. The apex courts of Canada and the United States, and

9 De Vattel is sometimes described as Swiss. In his lifetime, his birthplace of Neuchatel was Prussian, and he only became Swiss after his death.

108  Research handbook on the politics of constitutional law the European Court of Human Rights each invoke some version of de Vattel’s proposition about sovereignty and borders under the law of nations: One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests. Vattel, Law of Nations, book 1, s. 231; book 2, s. 125.10

Subsequently, common law courts restated de Vattel’s proposition in the negative: the obverse of the sovereign’s ‘right to refuse’ entry or residence is the absence of the alien’s right to enter or remain: At common law no alien has any right to enter this country except by leave of the Crown; and the Crown can refuse leave without giving any reason: If he comes by leave, the Crown can impose such conditions as it thinks fit, as to his length of stay, or otherwise. He has no right whatever to remain here.11

The absolute right of the sovereign to exclude or expel, along with its obverse, the lack of the alien’s right to enter or remain, provide a common point of departure for each court’s version of immigration exceptionalism. 2.1

Supreme Court of the United States

The centrepiece of US immigration exceptionalism is the plenary power doctrine. Its origin lies in the 1889 case of Chae Chan Ping v. United States.12 Known as The Chinese Exclusion Case, it dates back to an era when immigration law in settler societies advertised its racist animus openly. The relevant law barred the entry of Chinese to the United States, even a returning long-term resident with a re-entry certificate obtained prior to departure. The law prohibiting the appellant’s re-entry was enacted by Congress while he was on his return voyage to the United States. He was excluded when he arrived, and challenged his exclusion and detention. The United States Constitution did not list immigration as an enumerated power of the federal government, and so the judgment answers both the federalism question (which level of government enjoys jurisdiction over immigration?) and the rights question (are admission decisions constrained by the Constitution?). In answer to the first question, the judgment holds that the federal government enjoyed exclusive and unfettered authority to regulate the entry of non-citizens because immigration is a matter of national as opposed to local concern. But more significantly, it located the source of the federal power beyond the Constitution, in the external-facing dimension of national sovereignty, foreign relations:

10 AG Canada v. Cain (Reference re: Alien Labour Act, s. 6 (Can.)) [1906] AC 452, at para. 5. A different version of the same proposition appears in Nishimura Ekiu v. United States, 130 US 581 (1889): ‘It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to its self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. Vattel, lib. 2, §§ 94, 100.’ 11 R v. Governor of Pentonville Prison, Ex parte Azam [1973] 2 All ER 741 at 7XX. 12 Chae Chin Ping v. United States (1889) 130 US 581.

Liminal rights: sovereignty, constitutions and borders  109 That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power.

This inherent attribute of sovereignty also justified immunity from judicial review: If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed … [and] its determination is conclusive upon the judiciary.13

The Court does not disentitle non-citizens as such from constitutional protection. Instead, it refuses to adjudicate rights claims arising from exclusion as a matter of institutional competence. As Peter Spiro explains, ‘[p]lenary power is thus much less about defining rights than it is a question of who defines them.’14 Later, the USSC extended the reach of plenary power to the executive, thereby insulating both political branches of government from accountability in immigration. A complementary doctrine of consular non-reviewability doctrine immunised visa refusals by consular officials abroad. In principle, the constitution still binds the political branches, but they are not accountable to the judiciary for how they interpret and apply their constitutional obligations. Plenary power doctrine eventually expanded beyond exclusion to include detention and deportation. The USSC insisted that the power to deport any non-citizen is as ‘absolute and unqualified as the right to prohibit and prevent their entrance to the country.’15 This placed US non-citizen residents, regardless of the duration of their presence, in the same position as applicants for initial admission. In constitutional time and space, the non-citizen was perpetually arriving at the border as if for the very first time.16 The United States signed the UN Refugee Convention in 1967, but refugees attracted no specific judicial attention or exemption from these principles in subsequent USSC caselaw. Over time, immigration statutes offered greater substantive and procedural protection to resident non-citizens facing removal than to non-citizens seeking initially entry. These resulted from political choices by Congress and the President, with the occasional intervention of judicial review. Notably, beginning as early as 1903, the USSC imposed some constitutional procedural due process rights in deportation of some non-citizens present on the territory for some length of time.17 Beyond that, plenary power has insulated immigration decisions from

13 Ibid, 606. Almost a century later, the US Supreme Court affirmed the unfettered ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’ Quoted in Kleindienst v. Mandel 408 US 753 (1972). 14 Spiro (2002). 15 Fong Yue Ting v. United States 149 US 698 (1893) at 70. 16 Importantly, successive US immigration statutes have conferred greater procedural and substantive protection against expulsion of lawful permanent residents than exclusion of first-time entrants. Similarly, resident non-citizens enjoy various constitutional rights under the Bill of Rights in respect of state action not directly in the service of expulsion. These are among the reasons why President Trump’s Second Executive Order dropped the measures against lawful permanent residents and visa holders. 17 Yamataya v. Fisher, 189 US 86 (1903); Landon v. Placensia, 459 US 21 (1982); Reno v. Flores, 507 US 292 (1993).

110  Research handbook on the politics of constitutional law meaningful constitutional scrutiny on grounds of procedural due process as well as substantive rights, including substantive due process, liberty, free speech, religious freedom, freedom from arbitrary search and seizure, and equal protection.18 Plenary power’s reach was extended even further by the ancillary ‘entry fiction’ doctrine. The entry fiction trades on jurisprudence that precludes the extraterritorial application of the US Constitution. The entry fiction distinguishes between non-citizens provisionally allowed to enter the US ‘pending admission,’ non-citizens formally admitted to the United States subsequent to inspection, and non-citizens present on US territory who entered without inspection. Under the entry fiction, people in the first category are regarded as if they are still standing at the border, and thus unprotected by due process.19 The entry fiction first emerged as a bureaucratic practice to manage the infeasibility of detaining migrants on ships pending examination by immigration inspectors. Inspectors would disembark and detain migrants onshore but their presence would not count as entry for constitutional purposes. The entry fiction became unmoored from its historical origins, and now functions to deny constitutional due process protections to a subset of non-citizens physically present on US territory – even if they are detained on United States territory under US immigration law. It enables their classification as ‘excludable aliens,’ seeking entry, rather than ‘deportable aliens’ subject to removal, regardless of their actual presence on US territory. In principle, detained migrants retained access to the writ of habeas corpus to challenge the legality of their detention, although the utility of this remedy shrivelled as legislation mandated detention without regard to individualised criteria. The entry fiction combines territory, process and status to produce a legal subject who moves through US territory shrink-wrapped in the border for purposes of procedural due process in immigration law. Since the text of the US Constitution’s Fifth Amendment guarantees due process to ‘persons,’ a short-hand account of plenary power-plus-entry-fiction’s effect is that it denies personhood to non-citizens on US territory to the extent they are governed under immigration law. A separate ‘border fiction’ thickens the US border 100 miles inward for purposes of stretching the exemption from constitutional protection against unreasonable search and seizure at the border. The border fiction has spawned its own exceptions and anomalies; among other effects, the border fiction situates about two-thirds of the US population in its 100 mile border-zone. Neither the entry fiction nor the border fiction is a constitutional doctrine, but they distend plenary power in two ways: first, by classifying non-citizens inside US territory as notionally standing at the border and secondly, by thickening what counts as the border. The entanglement of these fictions with plenary power shields both doctrines from meaningful judicial scrutiny.

18 For example: For a non-citizen seeking entry, even a returning resident, ‘[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.’ United States ex rel. Knauff v. Shaughnessy, 338 US 537, 544–47 (1950); applied in Shaughnessy v. United States ex rel. Mezei, 345 US 206 (1953). Plenary power has fed an unremitting stream of (mostly critical) academic literature. For recent articles that reference many of the leading cases and most influential scholarly commentary, see Kim (2022); Núñez (2021). 19 A returning permanent resident is still an ‘excludable alien’ but nevertheless protected by due process in exclusion proceedings because of their prior connection to the United States (Landon v. Placensia, 459 US 21 (1982)); legislative reform in 1996 collapsed the parallel exclusion and deportation processes and shifted the standard from physical entry to legal admission.

Liminal rights: sovereignty, constitutions and borders  111 In terms of substantive rights relating to religion, freedom of speech, substantive due process and equal protection of law, the US Supreme Court’s position has shifted slightly from formal judicial abdication to the political branches to extremely deferential review in constitutional matters touching on exclusion and removal. Challenges to the constitutionality laws or orders will fail if the law in question is ‘facially legitimate and bona fide’ and/or has a rational basis. The former standard is unique to immigration law. Judicial commitment to the plenary power endures, though perhaps embarrassment about the doctrine’s racist pedigree explains the reticence of USSC majority judgments to explicitly invoke, affirm, modify or abandon the doctrine.20 In 1990, US immigration scholar Hiroshi Motomura published an influential article suggesting that while plenary power remained formally intact, some appellate courts had managed to marginalise it by using statutory interpretation techniques to reach outcomes consonant with broader constitutional norms.21 Motomura, like other scholars before and since, optimistically predicted the eventual repudiation of the plenary power doctrine. Zadvydas v. Davis22 lent support to this hypothesis when it interpreted statutory provisions governing detention to impliedly impose a six-month limit on post-removal order detention, thereby avoiding a substantive due process constitutional challenge to indeterminate detention. But subsequent detention decisions signal retrenchment, as the USSC subsequently rejected appeals challenging indeterminate, mandatory detention without individualised review.23 USSC cases in the second decade of the twenty-first century suggest that reports of plenary power’s imminent demise were exaggerated. Indeed, the current pattern of judicial reasoning suggests the inverse of what Motomura described: majority judgments deliver the same result that plenary power would produce, but without naming or explicitly applying the plenary power doctrine. And so, in Knauff v. Shaughnessy (1950) plenary power placed the exclusion of a non-citizen spouse of a US citizen beyond the reach of procedural due process. In Kerry v. Din (2015)24, the exclusion of a non-citizen spouse did not engage procedural due process because family unity (framed as the US citizen spouse’s interest in reuniting with her husband) did not amount to a constitutionally cognisable liberty interest. In Shaughnessy v. Mezei (1950)25, plenary power, in tandem with the entry fiction, placed the indefinite detention of a non-citizen resident beyond the reach of habeas corpus and procedural due process. In Department of Homeland Security v. Thuraissigiam (2020),26 USSC inter alia expanded the scope of the entry fiction to disable the appellant from asserting procedural due process protections or habeas corpus.

One commentator describes The Chinese Exclusion Case as ‘a kind of crazy uncle in the constitutional basement, to be ignored if possible and explained, if necessary, only in the vaguest terms’. Epps (2018). 21 Motomura (1990). 22 533 US 678 (2001). 23 Even Zadvydas itself was limited in reach, and subsequent cases upheld statutorily mandated detention of indeterminate length: Demore v. Kim, 538 US 510 (2003); Jennings v. Rodriguez, 583 US ___ (2018); Department of Homeland Security v. Thuraissigiam, 591 US _ (2020). 24 576 US 86 (2015). 25 345 US 206 (1953). 26 591 US ___ (2020). 20

112  Research handbook on the politics of constitutional law In Chae Chun Ping (1893), plenary power insulated the racist exclusion of Chinese non-citizens. In Trump v. Hawaii (2018),27 curial deference on a ‘rational basis’ standard to a ‘facially legitimate and bona fide’ order putatively about national security allowed the Court to discount abundant evidence of anti-Muslim animus lurking behind a law banning admission of nationals from nine countries, seven of which were majority-Muslim. Some commentators credit constitutional norms for producing a third and final version of the entry ban that was less bad than earlier iterations because it targeted a smaller class of Muslim non-citizens. One might, alternatively, blame immigration exceptionalism for enabling a majority of the USSC to uphold a law advertised by the President himself as a ‘Muslim ban,’ fully 125 years after it upheld a law advertised as ‘Chinese Exclusion.’28 In summary, the United States’ tortuous journey of immigration exceptionalism launched with a sweeping subject-matter exclusion of immigration law under plenary power doctrine. Over time, it was supplemented by various territorial (border thickening), procedural (entry fiction) and status-based accretions that extended its reach. Plenary power’s rigid posture of complete judicial abdication eased into some procedural due process protection for some long-term residents, and substantive review in certain circumstances according to extremely deferential standards of ‘facially legitimate and bona fide’ and/or ‘rational basis’ review. The practical contribution of these developments to rights protection in immigration law has been subtle. US constitutional law, as interpreted by the USSC places some procedural constraints on expulsion, diminishing restraints on detention, and hypothetical limits on the substance of expulsion that have yet to be activated in a USSC majority judgment. Even fewer limits (if any) apply to the process or substance of exclusion. 2.2

Supreme Court of Canada

The Supreme Court of Canada has adjudicated relatively few Charter claims brought by non-citizens since the 1982 entrenchment of the Canadian Charter of Rights and Freedoms. The most consequential cases have involved the constitutionality of the refugee determination process, and deportation of long-term permanent residents. The heavy lifting thus far has been performed by section 7, which states that: Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof, except in accordance with the principles of fundamental justice.29

The early section 7 precedents proceeded from the claim that refoulement of refugees, or deportation of long-term permanent residents (usually on grounds of criminality) impair life, liberty and security of the person. The second stage of the argument asked whether this infringement accorded with ‘principles of fundamental justice,’ which encompasses both

Trump v. Hawaii, 138 S. Ct. 2392 (2018). In 2000, Gabriel Chin predicted that plenary power may never be repudiated because no case of discrimination as flagrant as Chae Chun Ping was likely to emerge in a manner than forced the US Supreme Court to squarely confront its legitimacy. Chin (2000), 285. 29 Some lower court cases have addressed the equality/non-discrimination provision of the Charter (s. 15) in respect of distinctions drawn between classes of refugee claimants. The SCC has not. See e.g. Z(Y) v. Canada (Minister of Citizenship & Immigration) 2015 FC 892. 27 28

Liminal rights: sovereignty, constitutions and borders  113 procedural defects (denial of a fair hearing, access to counsel etc.) and substantive deficiencies (overbreadth, gross disproportionality, arbitrariness, etc.).30 The Supreme Court of Canada’s earliest Charter judgment radiated openness to non-citizens’ rights claims. In Singh, an unsuccessful refugee claimant challenged the process of refugee determination laid out in the immigration statute.31 The controlling judgment affirms that ‘everyone’ under section 7 ‘includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.’32 An unresolved question is whether subjection to Canadian law is ever sufficient to bring a non-citizen outside Canadian territory under the aegis of the Charter.33 Canada signed the UN Refugee Convention in 1969, and the refugee definition was already incorporated into domestic legislation a dozen years prior to the Charter. Therefore, the Supreme Court of Canada confined itself to addressing the adequacy of the process for determining access to an existing statutory right to refugee status. The Court found that security of the person under section 7 is engaged by refugee determination, even if refoulement presents only a risk rather than a certainty of persecution, and even though the proximate agent of persecution is the state of nationality, not Canada.34 In coming to this view, Wilson J. looks to the consequences of state action for the person concerned. The potential impact of refoulement for a refugee made this an easy case in her estimation: [I]f the appellants had been found to be Convention refugees … they would have been entitled as a matter of law to the incidents of that status provided for in the Act. Given the potential consequences for the appellants of a denial of that status if they are in fact persons with a “well-founded fear of persecution,” it seems to me unthinkable that the Charter would not apply to entitle them to fundamental justice in the adjudication of their status.35

This conclusion then grounds the Court’s assessment of how the existing determination process failed to accord with procedural demands of ‘fundamental justice,’ and the imposition of a minimum set of required procedures, such as disclosure of evidence and an oral hearing where credibility is at issue.

The complexity of a s. 7 analysis is compounded by the fact that protection of the stipulated right is internally limited by principles of fundamental justice, but also by a general proportionality provision applicable to all Charter rights. Section 1 ‘saves’ Charter-violating state action if the infringement is ‘demonstrably justified in a free and democratic society.’ Section 1 of the Charter evaluates the justifiability of a rights infringement by using a proportionality analysis that assesses the validity of the law’s objective, its rational connection to attainment of the objective, the availability of less restrictive alternatives, and an overall cost-to-rights vs. benefits-to-society calculus. In practice, s. 1 has proven redundant in s. 7 cases. 31 Singh v. Canada (Minister of Employment and Immigration) [1985] 1 SCR 177; Immigration Act 1976–77, c. 52. 32 Ibid, para. 35. 33 For a cogent argument in favor of the non-territorial position, see Donald Galloway, ‘The Extraterritorial Application of the Charter to Visa Applicants’ (1991) 23(2) Ottawa Law Review 335–72. 34 Singh, para. 47. 35 Ibid, para. 52. 30

114  Research handbook on the politics of constitutional law In two cases decided after 9/11, Suresh v. Canada36 and Canada v. Charkaoui,37 the Court addressed the inadmissibility, detention and deportation of non-citizens subject to ministerial designation as national security risks under Canada’s ‘security certificate’ regime. Persons named in a security certificate were subject to automatic, warrantless, indefinite detention, and deportation after a secret hearing where neither the detainee nor their counsel could see or challenge all the evidence, nor participate fully in proceedings. While the Court did not regard detention as imprisonment (which would have afforded detainees a suite of constitutional protections specifically afforded to criminal accused), it did recognise detention as a section 7 liberty violation sufficient to warrant some level of constitutional protection. Both Suresh and Charkaoui affirm that the principles of fundamental justice required notice and an opportunity to reply to allegations that the persons concerned met the (very capacious definition) of a threat to national security, and also required regular detention review, albeit with no stipulated limit on the length of detention. The procedural demands of fundamental justice were (depending on one’s perspective) adapted or diluted to accommodate the national security context. If the procedural story of non-citizens under the Charter is one of relative openness, the substantive story is one of closure. In the second of two challenges to deportation of long-term permanent residents on grounds of criminality, the SCC declared that deportation does not engage liberty or security of the person. Drawing on pre-Charter common law jurisprudence, the SCC in Chiarelli v. Canada first ruled in 1992 that since non-citizens do not have an unqualified right to enter or remain in Canada, no principle of fundamental justice was implicated in deprivation of status followed by expulsion.38 The SCC ruled that the requirement that a permanent resident not be convicted of a serious crime is ‘a legitimate, non-arbitrary choice by Parliament.’39 that in turn justifies loss of permanent resident status and deportation. According to the Court, no principle of fundamental justice mandates attention to the rootedness of the individual in Canada (length of residence, familial, personal, cultural or social ties), subsisting links to the country of birth, or the material, psychological or practical impact of deportation. The Court also held that the state’s right to exclude derived from a timeless principle of sovereignty. Consideration of the impact of expulsion on fundamental interests of the non-citizen was a contingent policy choice of legislators, not a legal principle rooted in basic tenets of the legal system.40 In Medovarski v. Canada (2005),41 the Supreme Court went further and declared that the fact that non-citizens enjoy no unqualified right to enter negated deportation as an infringement of liberty or security of the person. Proceeding from Chiarelli, the Court stated that: The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733. Thus the deportation of a non-citizen in itself cannot implicate the

38 39 40 41 36 37

[2002] 1 SCR 3. [2008] 2 SCR 326. Chiarelli v. Canada (Minister of Employment and Immigration) [1992] 1 S.C.R. 711, at p. 733. Ibid, 715. Ibid, 741. [2005] 2 SCR 539 (Medovarski).

Liminal rights: sovereignty, constitutions and borders  115 liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms.42 (emphasis added)

The word ‘thus’ does a lot of work here. It invites the reader to infer that the first proposition entails the second. Yet, the fact that a person does not have an unqualified right to X does not actually entail that depriving them of X cannot violate a right. Indeed, SCC judgments outside immigration law demonstrate this: Individuals do not have an unqualified right to state funded legal counsel, yet the SCC has held that it breached an indigent mothers’ section 7 interest (in security of the person) to deny her legal aid for a proceeding where the state sought permanent transfer of child custody.43 When the SCC struck down the abortion law in 1988, it did not declare an unqualified right to abortion, but ruled instead that the existing regime violated pregnant women’s rights to security of the person.44 Yet, in the realm of immigration law, the proposition that the absence of an absolute right to enter or remain means that deportation cannot infringe liberty or security of the person has virtually foreclosed Charter accountability for deportation, at least where the consequences in the country of nationality fall short of torture, death, and possibly persecution.45 In later jurisprudence, the Supreme Court presses on the qualifier contained in Medovarski, namely that deportation does not in itself implicate liberty or security of the person. The Court leaves open the possibility that incidental or consequential features of deportation may do so. So far, the Supreme Court has found that section 7 is engaged where detention is incidental to deportation (because detention infringes liberty)46 and where the consequence of expulsion is a substantial risk of torture. So, in Suresh, the Court addressed a statutory provision that permitted deportation to a threat to life or freedom (including torture) where the Minister formed the opinion that a non-citizen poses a threat to national security. The Court concedes that deporting a person to a substantial risk of torture breaches life, liberty and security of the person. It recognises a free-standing Charter right against removal to torture, but then reserved to the executive a residual discretion to return to torture in ‘exceptional circumstances.’47 Unsurprisingly, the government then took the position that each subsequent national security case presented exceptional circumstances justifying deportation to torture.48 Because persecution encompasses more than torture, Suresh did not resolve whether refoulement to persecution short of torture violates the Charter or, put in other terms, whether the Charter guarantees a right to refugee protection in ordinary circumstances that do not implicate national security. In Febles v. Canada (MCI), however, the Court remained open to the possibility of precluding expulsion ‘where Charter-protected rights may be in jeopardy.’49

Ibid, para. 46. New Brunswick (Minister of Health and Community Services) v. G. (J.) [1999] 3 SCR 46. 44 R. v. Morgentaler [1988] 1 SCR 30. 45 The qualification ‘direct’ acknowledges that at least one indirect consequence (torture) engages s. 7; it remains unclear whether persecution does. 46 Charkaoui, see n 37 above at paras. 13–14. The SCC, like other apex courts, refuses to characterize detention as imprisonment, just as it refuses to recognize deportation as punishment. Either would require a more robust application of more extensive constitutional protections. 47 Ibid, para. 78. 48 Macklin (2012), 261–306. 49 [2014] 3 SCR 431 at para. 67 (Febles). 42 43

116  Research handbook on the politics of constitutional law At the same time, the Court also declared in obiter ‘the Charter does not give a positive right to refugee protection.’50 The court is still out, so to speak, on where and when section 7 of the Charter is substantively engaged in refugee law. More recently, two attempts to re-litigate the Chiarelli exception, one involving a refugee claim and the other concerning deportation of permanent residents who arrived in Canada as children, failed when the SCC refused to hear the cases.51 In sum, immigration exceptionalism Canadian-style does not immunise immigration law from constitutional review. The jurisprudence allows non-citizens at or inside the border to qualify as ‘everyone’ under section 7 of the Charter. Nor does it game territoriality through an entry fiction or by thickening the border (although the application of the Charter extraterritorially remains unresolved). It does not rule that deportation in all circumstances is a justifiable infringement of liberty or security of the person. Instead, Canadian immigration exceptionalism operates by baldly denying that forcibly removing a person from Canadian territory and transporting them under physical restraint to another country against their will infringes their liberty or security of the person in the first place, no matter the length of residence in Canada, the individual’s rootedness in Canada, or the consequences of removal to the destination country (short of torture or death, and possibly persecution). So far, the potential for a Charter violation ensuing from deportation is limited to harms inflicted by the country of destination upon removal. In effect, the Court’s method toggles between status and personhood in constituting the non-citizen subject to expulsion. Non-citizens are rights bearers – ‘everyone’ – under section 7 of the Charter, yet non-citizens can advance no claim as rights bearers because deportation does not breach their liberty or security of the person. Why? Because they are non-citizens. And the defining quality of non-citizens in immigration law is that they have no unqualified right to enter and remain. ‘Everyone’ is protected under section 7, but section 7 is blind to the specific harms inflicted uniquely on non-citizens, namely exclusion and expulsion. Even where deportation may lead to torture, (and thus clearly violates Canada’s international legal obligations), the Supreme Court of Canada has proved unwilling to categorically prohibit expulsion. 2.3

European Court of Human Rights

The European Court of Human Rights (ECtHR) adjudicates cases brought against signatory states for breaches of the European Convention on Human Rights (ECHR). The ECHR is not a constitution, and the ECtHR is not a domestic apex court. Its sole mandate and raison d’être is to interpret and apply a code of human rights analogous to the US Bill of Rights and the Canadian Charter of Rights and Freedoms. The ECtHR’s stature as a transnational court affords it a certain distance and detachment from the domestic [anti]immigration politics 50 Ibid, para. 68. Time and again, lower court judgments deflect the engagement of the Charter at whatever stage in the refugee or removal process is before the court, insisting that, if the Charter applies, it applies somewhere later. Alternatively, the hypothetical (and often illusory) availability of discretionary relief is presented as an alternative to rights protection. See Blum, n 8 above, 29–33; 36–39. 51 Revell v. Canada (Citizenship and Immigration) 2019 FCA 262; Moretto v. Canada (Minister of Citizenship and Immigration) 2019 FCA 261; Kreishan v. Canada (Minister of Citizenship and Immigration) 2019 FCA 223 (refugee claim). The author was co-counsel in Moretto. These cases are discussed in Blum (2021).

Liminal rights: sovereignty, constitutions and borders  117 within which national courts operate. Unlike international human rights instruments (like the International Covenant on Civil and Political Rights, or the Refugee Convention), the ECHR is enforceable, and ECtHR judgments are binding on the 46 Member States of the Council of Europe.52 At the same time, the ECtHR’s political legitimacy as a transnational adjudicative body is even more fragile than that of its national counterparts. It famously approaches its task from a posture of deference toward the diverse expressions of legislative and executive authority by Member States, which it dubs the ‘margin of appreciation’. For these reasons among others, it is important not to overstate the utility of comparisons between the ECtHR and their domestic counterparts. Since commencing adjudication of migration cases in the late 1980s, the ECtHR has generated a larger and richer body of jurisprudence on immigration and refugee law than either the USSC or the SCC. The ECtHR’s immigration jurisprudence also appears least exceptional compared to these other courts. The ECtHR sweeps exclusion, detention and removal within the ambit of the ECHR, with one glaring and ironic omission: The ECtHR interprets the scope of Article 6 (guaranteeing the equivalent of due process or procedural fairness) to exclude all administrative decisions concerning immigration and refugee law. While the text of Article 6 seems capacious enough to comprise administrative decision making, the ECtHR ruled that ‘decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention’.53 So, while the ECtHR has, in principle, recognised that decisions to admit, detain or expel are subject to substantive scrutiny, it denies that the procedures leading to those decisions come within the ECtHR’s jurisdiction. One might say that the ECtHR subscribes fully to the US Supreme Court’s 1950 dictum that whatever the Member State has provided (and national courts have upheld under domestic law) is due process as far as the ECtHR is concerned.54 The ECtHR does not expressly recognise a right to asylum or to non-refoulement, but the ECtHR has interpreted Article 3’s prohibition of torture, inhuman or degrading treatment or punishment to prohibit removal to another state that has ‘as a direct consequence the exposure of an individual to proscribed ill-treatment,’55 whether by state or non-state actors. The ECtHR has also ruled that severe infringements of other rights protected under the ECHR may also amount to inhuman treatment for purposes of Article 3’s prohibition on expulsion. The definition of cruel, inhuman or degrading treatment is narrower than ‘persecution’ under refugee law, the standard of proof is higher for an Article 3 violation than the analogue under refugee law, and the ECtHR has rejected most Article 3 appeals on the facts. However, the prohibition of expulsion where Article 3 requirements have been met is absolute. The

52 For a discussion of enforcement and the meaning of ‘binding’ in the ECHR context, see Abdelgawad (2017). 53 Council of Europe, Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 117, 22/11/1984. 54 It should be noted, however, that over half the members of Council of Europe are also Member States of the European Union. As such, they are bound by numerous directives concerning the process and substance of refugee protection, including reception conditions, detention, and asylum determination procedure. 55 Soering v. UK (1989) 11 EHRR 439 (extradition and death penalty); Cruz Varas v. Sweden (1991) 14 EHRR 1.

118  Research handbook on the politics of constitutional law 1997 Chahal v. UK56 judgment declared that Article 3 prohibited return to torture. This was re-affirmed in 2009 in the post-9/11 judgment in Saada v. Italy57 against importuning by states that the harm of torture of suspected terrorists by the destination state should be balanced against the benefits to national security of deportation. Although Canadian and US constitutions also prohibit cruel, inhuman and treatment, neither apex court has interpreted those provisions to prevent expulsion of non-citizens. As noted above, Canada permits it in ‘exceptional circumstances,’ and the United States prohibits expulsion to torture through statute, obviating a constitutional challenge. Article 8 of the European Convention on Human Rights guarantees to everyone ‘the right to respect for his private and family life, his home and his correspondence.’ There are no direct analogues in the Canadian or US Constitutions. Neither Canadian nor US constitutional jurisprudence have interpreted freedom of association to include the family as an association attracting constitutional protection. The European Court has interpreted Article 8 to apply to refusals to authorise family reunification or to decisions to expel long term permanent residents (usually on grounds of criminality) or irregular residents. It is noteworthy that while both Canada and the United States are settler societies that historically valorised and encouraged kinship-based immigration as nation-building, neither the USSC nor the SCC recognise denial of family reunion as potential rights violation. Western European states long resisted acknowledging themselves as countries of immigration, and family reunification policies were the product of hard-fought political and legal battles in the wake of Europe’s ‘guest worker’ regimes and reverse flow of migration from former colonies to the metropole. Political contestation in Europe over family migration in the late twentieth century may, paradoxically, account for the apparently superior rank of family unity as a human right under the ECHR. Conceptually, recognition of state-enforced family separation as a possible rights infringement secures the reputation of the ECtHR as a more enlightened court than its Canadian and US counterparts, as well as national courts of European Council members and even the European Court of Justice.58 It seems plausible to attribute this progressive position to the ECtHR’s institutional location outside and beyond the state. This normative achievement remains true and significant even if, as a practical matter, the number of successful cases opposing removal or seeking reunification remain quite small, and most challenges fail. Critics of the caselaw also note that much like the Article 3 jurisprudence, Article 8 jurisprudence is highly casuistic, a feature that is exacerbated by the fact that Article 8 is not absolute. An Article 8 infringement (whether by exclusion or expulsion) may be justified on the basis of a proportionality test. This is where scholars locate immigration exceptionalism in ECtHR jurisprudence. As Marie-Bénédicte Dembour explains, the proportionality test in Article 8 cases deviates from the justificatory framework for rights limitations by routinely ascribing the state’s breach of an individual’s ECHR rights to the state’s own sovereign ‘right’ to exclude or expel. This can have the effect of diminishing the burden on the state to justify a rights infringement, or even reversing the burden entirely. Instead of the state justifying an infringement of family and private life, the applicant tacitly bears the onus of justifying why their situation warrants 1997 23 EHRR 413. 2009 49 EHRR 439. 58 Adam & Van Elsuwege (2017). 56 57

Liminal rights: sovereignty, constitutions and borders  119 an exception to the sovereign prerogative to exclude. Dembour labels this shift the ‘Strasbourg reversal,’ whereby ‘state control comes before human rights provisions’ and the Court’s default position shifts ‘toward the state and away from the claimant.’ Whatever one’s views about the merits of outcomes reached by the ECtHR, it does appear that the reasoning in these cases often devolves into a highly fact-specific multi-factor balancing test characteristic of discretionary decisions by first level decision-makers. Indeed, Justice Kennedy in Kerry v. Din cited the prospect of requiring courts to engage in precisely this type of individualised constitutional assessment as an additional reason to favour the alternative of near-absolute deference to visa officers.59 Article 8 proportionality analyses has arguably produced a jurisprudence of one-off decisions that arguably limits the precedential utility of any judgement.60 An incomplete list of individualised factors that the ECtHR takes into account include the length of residence in the European state vs country of nationality; best interests of affected children; secure vs. insecure legal status; social, cultural, familial attachment to country of residence vs. country of origin; timing of spousal relationship; criminal record and post-conviction conduct; the ability to enjoy ‘family life elsewhere;’ and, most potent of all, the state’s interest in border control as such.61 As Cathryn Costello points out, the vindication of sovereign interest in controlling migration, independently of the content of the rule or decision at stake, often exerts independent weight as a ‘pressing social need’ or ‘a legitimate aim.’62 This generic state interest in migration control as such can be a blunt tool for discounting the devastating and material effects of decisions to refuse family reunification or deport a long-term resident. By way of comparison, the value attached to the broad objective of suppressing crime as such would not suffice to justify a specific criminal provision about the degree of fault required for conviction, or a minimum sentence imposed as punishment. Much more would be required in terms of the specific legal provision’s purposes, mode, alternatives, and effects. Here, immigration exceptionalism manifests in the extent to which control for the sake of control is a self-evident (yet intangible) good, capable of outweighing the impact of a right infringement. Apart from the potential arbitrariness and indeterminacy of these cost-benefit analyses, the EctHR’s capacious margin of appreciation also tilts in the direction of deference to the state.63

3.

DIFFERENT PATHWAYS, SAME DESTINATION

The Supreme Court of the United States, the Supreme Court of Canada, and the European Court of Human Rights share a vision of sovereignty that measures it in relation to its capacity to exclude or expel without constraint. In the United States, the sovereign ‘right’ to control borders means that the judiciary should (more or less) abstain in favour of the political branches on all substantive questions of admission and exclusion; the EctHR invokes the ‘margin of appreciation’ to defer to Member States in individual cases. Both the SCC and the USSC accept that some decisions about some aspects of admission or exclusion are subject

61 62 63 59 60

576 US 86 (2015), 104. Spijkerboer (2009); Costello (2016). Desmond (2018). Costello (2016), 127. See e.g. Biao v. Denmark [2016] ECHR 455.

120  Research handbook on the politics of constitutional law to procedural protections, but the EctHR does not. The EctHR acknowledges that expulsion to face a substantial risk of torture can breach an absolute right to be free of cruel, inhuman or degrading treatment whereas the SCC does not. Neither the SCC nor the USSC recognise a right to family or personal life, but the EctHR does. Unlike the EctHR, the SCC and the USSC are formally blind to deracination and to family separation as constitutionally cognisable harms. On the one hand, this doctrinal variation suggests that – contrary to judicial assertion – none of the doctrines is actually a necessary or inevitable entailment of sovereignty. On the other hand, the implacable determination of each court to doctrinally vindicate a conception of sovereignty that minimises human rights obligations toward non-citizens speaks to the intensity of the conviction that the stakes are existential. 3.1

De Vattel as Authority

The passage from jurist Emmerich de Vattel that opens this chapter anchors the early constitutional judgments of the US and Canadian supreme courts, and it makes similar appearances in UK, Australian and New Zealand jurisprudence as the foundation of a common law principle. As Nafziger explains, its eighteenth-century pedigree imbues the equation of sovereignty with the unfettered right to exclude or expel aliens with an aura of timeless and immanent truth. Yet, there are at least three reasons to doubt this maxim’s validity.64 First, the maxim gets de Vattel wrong. As scholars have pointed out, de Vattel’s view of sovereignty and the movement of people was embedded in a more complex and subtle conceptual framework. De Vattel’s sovereign prerogative to exclude or expel was only half of his equation. The other half was a right of innocent passage, whereby the entry and residence of an alien in danger could not be refused without meaningful justification, such as actual danger or prejudice to the nation. As Chetail explains, de Vattel sought to reconcile the tension between sovereignty and hospitality through a ‘law of necessity’ that foreshadows Kantian cosmopolitanism and even the more contemporary conception of the refugee: When a real necessity obliges you to enter into the territory of others – for instance, if you cannot otherwise escape from imminent danger, or if you have no other passage for procuring the means of subsistence, or those of satisfying some other indispensable obligation – you may force a passage when it is unjustly refused.65

In short, de Vattel’s conception of the law of nations does not actually support an unqualified entitlement of a state to exclude or expel. Secondly, de Vattel was only one of several international jurists who addressed the power of states to admit or exclude. De Vattel’s treatise follows Vitoria, Grotius, von Pufendorf and Wolff, and precedes Blackstone. Importantly, none defend a concept of sovereignty that confers an absolute right to exclude or expel an alien. They differ on whether hospitality is the default norm and exclusion the exception that requires justification, or vice versa. And they vary in the stringency of the criteria for exception. So had courts represented de Vattel more

This section relies heavily on secondary literature, specifically Plender (1988), 1–94; Nafziger (1983); Cavallar (2013); Chetail (2016); Lester (2018). 65 Quoted in Chetail (2016), 920. 64

Liminal rights: sovereignty, constitutions and borders  121 accurately and/or looked beyond de Vattel to other sources, they would have found no support for the equation of sovereignty with unfettered power to exclude or expel. Finally, historical contingency matters in at least two ways. The early jurists, up to and including de Vattel, lived in era where global movement was primarily mercantilist or imperialist. As Eve Lester astutely observes, the ‘foreigner’ of these jurists’ imaginary was always and only European.66 The vector of transnational movement pointed from metropole to colony, or reciprocally between metropoles. Jurists aimed to defend and facilitate trade and commerce among Europeans (and with a few Asians), as well as European practices of conquest, occupation and domination of non-European territories and peoples. But the courts who enthusiastically embraced and distorted de Vattel operated within a different migratory framework by the late nineteenth century: Settler societies like the United States, Canada, Australia, New Zealand and South Africa, depended on mass immigration for their (white) nation-building project. They promoted high levels of voluntary and permanent immigration among desirable settlers, in tandem with the temporary admission of ‘cheap and expendable’ racialised labour. Once the perceived utility of these bonded or indentured workers was spent, or the political cost of their admission considered too high, they joined the category of excludable migrants. Settler states could not rely on a myth of primordial peoplehood to justify discrimination against non-European migrants, and so engaged in a deliberate, self-conscious project of constituting the nation according to Eurocentric standards of the racial, moral and intellectual superiority of white Christians. The foreigner of their imagination was not the European foreigner of the early jurists. The foreigner who preoccupied them was not European or, if European, was coded racially as non-white. If white, they belonged to a physically, morally or religiously inferior class.67 These courts sought to justify exclusion and expulsion of racialised and ‘othered’ foreigners in terms of unbridled sovereignty. Yet, they were reaching jurists whose remit had been to rationalise the free movement of European colonisers, traders and merchants. The truncated excerpt from de Vattel, containing only his ‘sovereignty’ principle and omitting the ‘necessity’ principle, was uniquely fit for purpose. The judicial misreading of de Vattel was obviously instrumental and convenient, but courts also adorned it with supplementary rationales. For example, in Chae Chan Ping, the Supreme Court characterises immigration regulation as a subset of foreign relations, a field of government action where courts traditionally exercise considerable restraint. Migrants are portrayed as vectors of peacetime aggression, tethered by identity and affiliation to a foreign power.68 Since migrants are the embodied projection of foreign states, their entry subjects the United States to the power of another state, thereby diminishing its independence accordingly. As the Court states, ‘If it could not exclude aliens it would be to that extent subject to the control of another power.’69 The Court regards migrants as the projection of a foreign power and, consistent with international legal personality, remarks that any remedy for exclusion or expulsion of non-citizens falls to the foreign state to pursue in the sphere of foreign relations.70

68 69 70 66 67

Lester (2018), 78. Lester (2018), 81–83. Chae Chan Ping, n 12 above. Ibid, 603–604. See e.g. Miller (2016); Wellman (2008).

122  Research handbook on the politics of constitutional law A more modern justification for sovereignty-as-border-control diverts the focus away from foreign power as the ultimate source of the threat posed by migrants. Rather, the contemporary view is that migrants are a threat unto themselves, and the threat is existential: The body politic remains at perpetual risk from infiltration by foreign bodies that threaten its moral, spiritual, economic, or physical health. National self-determination entails the power to define membership in the nation/state. Without it, the nation-state would cease to be a self-determining political community able to promote and protect the welfare of its members, and so cease to exist as sovereign state. Political theorists in the liberal tradition debate whether a default posture of closure to the entry of non-citizens is either required by, inimical to, or consistent with, a liberal conception of justice in a bounded nation-state. Joshua Blum observes that these conversations revolve around the intractable paradox of liberalism’s universalist pretensions of equality and liberty, its preference for the enclosed nation-state as the optimal political/ institutional locus, and the inevitable particularism entailed by national closure.71 Blum suggests that immigration exceptionalism is law’s way of managing this paradox72 Allowing for the variation described above, the general response is to deny that rights are engaged or that the court is the appropriate forum for protecting them. Drawing on courts’ initial reliance on de Vattel, I argue that the insulation of immigration law from meaningful rights adjudication is accomplished through a fundamental, glaring and overlooked error in legal reasoning. The point of exposing the error is not to naively propose that a correction would alter the course of constitutional jurisprudence. It is, rather, to demonstrate how commitment to immigration exceptionalism comes at a cost not only to non-citizens, but to the integrity of the internal logic and normative architecture governing rights interpretation. It is a formal mistake with profound substantive consequences. 3.2

Confusing Power with Right

I return to the version of the maxim quoted by the Judicial Committee of the Privy Council in AG v. Cain: One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests.73

The maxim declares the ‘right’ of the state to exclude and expel the alien, and common law courts have inferred that individuals therefore have no right to enter or remain. More recently, the European Court of Human Rights in Jeunesse v. Netherlands acknowledges that this ‘right’ is subject to a state’s international treaty obligations, but then goes one step further: The corollary of a State’s right to control immigration is the duty of aliens such as the applicant to submit to immigration controls and procedures and leave the territory of the Contracting State when so ordered if they are lawfully denied entry or residence.74

Blum (2021), 49–56. Blum (2021), 53. 73 AG Canada v. Cain (Reference re: Alien Labour Act, s. 6 (Can.)) (see n 10 above). 74 Ibid. 71 72

Liminal rights: sovereignty, constitutions and borders  123 So, we now have two sets of propositions that are ostensibly derived from the maxim: 1. 2.

(a) States possess a right against non-citizens to exclude or expel (b) Non-citizens have a correlative duty not to enter and to leave when ordered (a) Non-citizens possess no right to enter or remain (b) Therefore, non-citizens’ rights are not violated by exclusion or expulsion

De Vattel is represented as the source of proposition 1(a). This is wrong. De Vattel wrote about the rights of states against other states under the law of nations. Even the US Supreme Court in Chan Chae Ping indirectly recognises this when it insists that any remedy for exclusion lies with the state of origin as the aggrieved party, because individuals did not have standing under international law. Individuals are the objects, not the agents, of these sovereign interactions. In classical public international law, states possess sovereign rights as against other states, not against individuals. The right of states to exclude or expel non-citizens is a right notionally asserted against the other state of nationality, not the individual. The state of nationality arguably has a duty to admit its deported national, and not to ‘impose’ their nationals on other states. But non-citizens themselves owe states no duty under international law to stay out or to depart. Of course, individuals may assert rights under various international human rights instruments, but that only means that states owe duties to individuals under international law to respect and protect those rights, not the other way round. In short, as a statement of international legal rights and duties, Jeunesse’s invocation of aliens’ ‘duties’ under international law cannot be correct. That is not to deny the obvious fact that states exercise power in and outside their territory to exclude and expel foreigners, and non-citizens are bound by the domestic laws that authorise those state’s actions, even though those laws are not enacted in their name or in their interest. Under international law, the relevant relationship is state-to-state, but under domestic constitutional law, it is state-to-legal subject. The political branches of the state exert power within their jurisdiction, albeit power constrained by the rule of law. Individuals possess rights that limit the exercise of that power. More precisely, states exercise power under domestic constitutional law to exclude and expel non-citizens, and they do so through law. But that power is always subject to, and constrained by, the individual rights set out in the US Bill of Rights, the Canadian Charter of Rights and Freedoms, or the European Convention on Human Rights. States have power. People have rights. States owe people a duty not to violate their rights when asserting their power. Without saying so explicitly, courts have confounded the distinction between states’ rights and duties toward one another under international law and states’ powers over individuals and those individual’s rights under domestic constitutional law. If the state really does possess a constitutional right against aliens to expel them (proposition 2(a)), the state’s right would indeed negate a claim of constitutional right not to be expelled (2(b)). And then it would make sense to proceed from the right of the state to deport, to the absence of an alien’s right not to be deported, to the conclusion that deportation ‘as such’ cannot be a rights-violating act. This is what the Supreme Court of Canada does. But here, ironically, courts have failed to respect the border between international and domestic law. They treat the state’s domestic constitutional power over aliens to exclude and expel them as if it were a domestic constitutional right of states to exclude expel aliens. But a power is not the same as a right.

124  Research handbook on the politics of constitutional law This slippage between power and right matters substantively because the assertion of a constitutional right requires no justification by the rights bearer – that is what makes it a special kind of claim. Of course, a right may be limited by compelling public interests, but the burden of justification lies on the one who seeks to limit the right, not on the rights holder. When I assert a right, I do not need to explain or justify why I’m asserting my right, but the state must justify abridging or limiting that right. In contrast to assertion of right, the assertion of public power within a legal order is answerable to a call for reasoned justification addressed to the one over whom power is exercised. In a constitutional contest, the state bears the burden of justifying the exercise of a power that infringes an individual right. That the state possesses a given power does not answer (much less defeat) a claim that a particular exercise of that power violates the right of an individual. It is the launching point, not the terminus, of the constitutional challenge. The confounding feature of the maxim is that it allows a power to exclude or expel to behave like a right to exclude or expel, unencumbered by a duty to justify itself even where it inflicts a harm whose intensity and scope make it a plausible candidate for a rights violation. That is partly why the bare invocation of the state’s ‘right’ to exclude or expel, or the state’s interest in immigration enforcement, are allowed to present themselves as complete answers to a claim that exclusion or expulsion violates a specific individual’s constitutional or human right. This tactic imports an anthropomorphic conception of the state as rights-bearer into a human rights document. The effect is to extinguish the individual right at stake, and to repudiate the commitment to reasoned justification within a framework of legality. The ECtHR adopts a gentler approach than the SCC. Rather than asserting that the state’s right negates the non-citizen’s right, it tacitly sets up deportation as a contest of ‘state right’ versus ‘individual right,’ where the state and the individual are juridical equals competing in a zero-sum battle of rights. And, occasionally, the individual wins. But, of course, the state and the individual are not really equals at all. This figure of a rights-asserting state is intelligible when a state asserts a right against another state, but it shatters the internal architecture of a liberal legal conception of human rights: States have power. People have rights. States owe a duty to respect people’s rights in the exercise of state power.75 So, the maxim beguiles and deceives by transmuting a distorted norm of sovereignty in public international law into a norm of sovereignty in domestic constitutional law. This fetishisation of border control in the name of sovereignty is distinct from the equal subjection of state and individual to the rule of law. It is also inimical to the normative foundation of a constitutional bill of rights. The assertion of a state right, deployed to extinguish individual rights within a constitutional/human rights instrument is, to borrow Robert Cover’s term, jurispathic.76 States and people do not inhabit the same plane when it comes to rights, whether constitutional or transnational. That a constitutional/human rights instrument could position the state as a bearer of rights against an individual is both perverse and incoherent. And yet, there it is, hiding in plain sight.

The US’ plenary power doctrine takes the maxim in a different direction by reading migration as exclusively a matter of state-to-state (foreign) relations for purposes of constitutional law. And since foreign relations lie outside the competence of the judiciary, so too decisions about exclusion and expulsion. 76 See Cover (1983), ‘for an account of legal judgment as variously jurispathic and jurisgenerative’. 75

Liminal rights: sovereignty, constitutions and borders  125

4. CONCLUSION This chapter offers a genealogy of how a snippet of text about sovereignty, wrenched out of its specific and historical context, came to encapsulate and rationalise immigration exceptionalism in human rights jurisprudence across three jurisdictions. The account of sovereignty is an inaccurate representation of de Vattel and unsophisticated on its own terms. It is apparent that states exercise sovereignty by voluntarily binding themselves to international legal obligations in a range of other fields, including refugee protection and human rights. States also chose to constrain their own power by constitutionally entrenching human rights. A concept of state sovereignty modelled on absolute, unfettered authority to act can only be described as immature and ill-suited to a system of independent states in an interdependent world. And yet, this caricature of sovereignty cannot be described as anachronistic, Despite the obvious counter-example set by regional free movement agreements in the European Union, Latin America (MERCOSUR) and west Africa (ECOWAS), the political equation of border control with sovereignty seems more potent than ever. Global economic interdependence diminished the capacity of states to unilaterally control the flow of trade and investment, and so nationalist fantasies seize on border control as the metric of sovereignty. The notion that states possess a right over non-citizens to expel and exclude them requires no justification or reasons for its exercise (because it is a ‘right’) lends immigration law its bitter flavour of arbitrariness, and necessarily strains against the rule of law.77 It also explains why the judicial preference for discretion, both as alternative to rights protection, and as legal technique, seems so dominant in immigration law. If entering and remaining can only and always be a privilege (and not a right) for non-citizens – regardless of what constitutions say – discretion becomes the natural and appropriate legal technology for meting out the beneficence of the state. What accounts for the elevation of exclusion and expulsion to the status of existential and transcendent in the political and legal imaginary of the global North? The answer seems to be that the ‘people’ allegedly constitute the nation prior to – and therefore beyond – the state’s constitution. The task of ‘peopling’ the nation-state is, on this account, irreducibly political and so cannot or should not be fully subject to constitutional discipline. As Bas Schotel puts it, exclusion ‘is essential and constitutive [of] the legal order to the extent that it is inescapably beyond justification.’78 In the United States and Canada, an array of doctrinal tools make rights claims uttered by non-citizens facing exclusion or expulsion largely inaudible to courts. The ECtHR does not work as hard to deflect rights claims, even if it seems to let the state place a thumb on the scale in proportionality weighting. These gambits do not resolve the paradox, they rather locate non-citizens in that liminal space that constitutes them – literally – somewhere between legal subject and object of power. Importantly, imposing human rights constraints on bordering would not necessarily yield an ‘open borders’ outcome. Recognition of the non-citizen as a rights-bearing subject would not preclude exclusion or expulsion, but it would rule out-of-court the ‘we do it because we can’ legitimation of force that underwrites the assertion of the state’s sovereign ‘right’ to exclude or expel. Like any other rights-infringing exercise of power, the state’s actions would be gen-

Ray (2021); Macklin (2019), 243–76. Ibid, 88.

77 78

126  Research handbook on the politics of constitutional law uinely accountable to the call for justification.79 This would not eliminate contestation over the appropriate bases for exclusion or expulsion in general or in particular cases, but it would shift the debate onto higher ground. Among the three courts, the ECtHR approach to Articles 3 and 8 cautiously approaches that model. Until courts confront the deep structure of immigration exceptionalism, exiling people from the place they have known as home for decades, separating parents from children and spouses from one another (in Canada and the US), and sending people to face persecution or torture will not count as harms within the grammar of constitutional rights when they are inflicted on non-citizens. If this is what drives immigration exceptionalism, we should be troubled, not only because it suggests that non-citizens and citizens are not equally human, but also because it corrodes the integrity of constitutional adjudication.

REFERENCES Abdelgawad, Élisabeth Lambert. ‘The Enforcement of ECtHR Judgments’ in András Jakab & Dimitry Kochenov (eds) The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford University Press, 2017). Achiume, Tendayi. (2022). ‘Racial Borders,’ Georgetown Law Journal 110: 445–508. Adam, Stanislas & Peter Van Elsuwege. ‘EU Citizenship and the European Federal Challenge through the Prism of Family Reunification’ in Dimitry Kochenov (ed) EU Citizenship and Federalism (Cambridge University Press, 2017). Blum, Joshua. (2021). ‘The Chiarelli Doctrine: Immigration Exceptionalism and the Canadian Charter of Rights and Freedoms,’ University of British Columbia Law Review 54: 1–61. Boekestein, Tom L. & Gerard-René de Groot. (2019). ‘Discussing the Human Rights Limits on Loss of Citizenship: A Normative-Legal Perspective on Egalitarian Arguments Regarding Dutch Nationality Laws Targeting Dutch-Moroccans,’ Citizenship Studies 23: 320–37. Bosniak, Linda. (2010). ‘Persons and Citizens in Constitutional Thought,’ International Journal of Constitutional Law 8: 9–29. Bosniak, Linda. The Citizen and the Alien. Dilemmas of Contemporary Citizenship (Princeton University Press, 2006). Cavallar, Georg. ‘From Hospitality to the Right of Immigration in the Law of Nations: 1750–1850’ in Gideon Baker (ed) Hospitality and World Politics (Palgrave Macmillan, 2013). Chetail, Vincent. (2016). ‘Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel,’ European Journal of International Law 27: 901–22. Chin, Gabriel Jackson. (2000). ‘Is There a Plenary Power Doctrine? A Tentative Apology and Prediction for Our Strange but Unexceptional Constitutional Immigration Law,’ Georgetown Immigration Law Review 14: 257–87. Costello, Cathryn. The Human Rights of Migrants and Refugees in European Law (Oxford University Press, 2016). Cover, Robert M. (1983). ‘The Supreme Court, 1982 Term – Foreword: Nomos and Narrative,’ Harvard Law Review 97: 4–68. Desmond, Alan. (2018). ‘The Private Life of Family Matters: Curtailing Human Rights Protection for Migrants under Article 8 of the ECHR?,’ European Journal of International Law 29: 261–79. Epps, Garrett. ‘The Ghost of Chae Chan Ping,’ The Atlantic, 20 January 2018, https://​www​.theatlantic​ .com/​politics/​archive/​2018/​01/​ghost​-haunting​-immigration/​551015/​.

Bas Schotel describes the argument for the inherent power over inclusion and exclusion as ‘the exclusion thesis,’ and advances an argument that the rule of law demands justification for decisions to exclude. Schotel (2012), 54. 79

Liminal rights: sovereignty, constitutions and borders  127 Fargues, Émilien & Elke Winter. (2019). ‘Conditional Membership: What Revocation Does to Citizenship,’ Citizenship Studies 23: 295–303. Galloway, Donald. (1991). ‘The Extraterritorial Application of the Charter to Visa Applicants,’ Ottawa Law Review 23: 335–72. Kim, Catherine Y. (2022). ‘Rights Retrenchment in Immigration Law,’ UC Davis Law Review 55: 1283–366. Kochenov, Dimitry. (2020). ‘Ending the Passport Apartheid. The Alternative to Citizenship is no Citizenship – a Reply,’ International Journal of Constitutional Law 18: 1525–30. Lepoutre, Jules. (2020). ‘Citizenship Loss and Deprivation in the European Union (27 + 1),’ SSRN Electronic Journal, https://​www​.ssrn​.com/​abstract​=​3657076. Lester, Eve. Making Migration Law: The Foreigner, Sovereignty, and the Case of Australia (Cambridge University Press, 2018). Macklin, Audrey. (2014). ‘Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien,’ Queen's Law Journal 40: 1–54. Macklin, Audrey. ‘Can We Do Wrong to Strangers?’ in David Dyzenhaus & Mayo Moran (eds) Calling Power to Account: Law Reparations, and the Chinese Canadian Head Tax (University of Toronto Press, 2005). Macklin, Audrey. ‘The Inside-Out Constitution’ in David Dyzenhaus & Thomas Poole, The Double-Facing Constitution (Cambridge University Press, 2019). Macklin, Audrey. ‘Narratives of Arrival, Narratives of Exclusion’ in Rebecca Johnson, Hester Lessard, Jeremy Webber (eds) Storied Communities (University of British Columbia Press, 2010). Macklin, Audrey. ‘Still Stuck at the Border’ in Craig Forcese & François Crépeau (eds) Terrorism, Law and Democracy: 10 Years After 9/11 (Canadian Institute for the Administration of Justice, 2012). Macklin, Audrey & Rainer Bauböck, ‘The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship?’ SSRN Electronic Journal. Miller, David. Strangers in our Midst (Harvard University Press, 2016). Motomura, Hiroshi. (1990). ‘Immigration Law after a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation,’ Yale Law Journal 100: 545–613. Motomura, Hiroshi. (2000). ‘Federalism, International Human Rights, and Immigration Exceptionalism,’ University of Colorado Law Review 70: 1361–94. Nafziger, James AR. (1983). ‘The General Admission of Aliens under International Law,’ American Journal of International Law 77: 804–47. Nail, Thomas. (2016). Theory of the Border (Oxford University Press, 2016). Núñez, D. Carolina. (2021). ‘Dark Matter in the Law,’ Boston College Law Review 62: 1556–619. Plender, Richard. International Migration Law, 2nd edition (Kluwer Law, 1988). Ray, Shalini Bhargava. (2021). ‘Immigration Law’s Arbitrariness Problem,’ Columbia Law Review 121: 2049–118. Schotel, Bas. On the Right of Exclusion: Law, Ethics and Immigration Policy (Routledge, 2012). Spijkerboer, Thomas. (2009). ‘Structural Instability: Strasbourg Case Law on Children’s Family Reunion,’ European Journal of Migration and Law 1: 271–93. Spiro, Peter J. (2002). ‘Explaining the End of Plenary Power,’ Georgetown Immigration Law Journal 16: 339–63. Weil, Patrick. The Sovereign Citizen: Denaturalization and the Origins of the American Republic (University of Pennsylvania Press, 2012). Wellman, Christopher Heath. (2008). ‘Immigration and Freedom of Association,’ Ethics 119: 109–41.

8. Unrecognised entities: politics of constitutionalism at the fringes Aistė Mickonytė and Benedikt C. Harzl

1. INTRODUCTION It would be a strenuous task to identify a modern state without some form of constitutional law. Reflecting the ideal of constitutionalism, a constitution-based order with a limited government and an empowered individual is widely perceived as a sine qua non1 and has been embraced in form and substance – albeit to varied degrees – by most contemporary states. Constitutional processes abound across continents,2 the idea of a supreme law imparting democracy, the rule of law and human rights drives the state- and institution-making. Legal reasoning around basic virtues prevails in the community of states, although the political ideal and the lived reality rarely overlap.3 Aspirations towards constitutional ideals are not, however, limited to states only. The splendour of constitutionalism equally attracts entities which fall short of being regarded as full-fledged states, thus encompassing so-called unrecognised (territorial) entities. These entities, many of which are the products of secessionist warfare and conflicting collective narratives in post-Soviet states, struggle to be recognised as states, while their metropolitan states dispute and oppose, including by military means,4 these claims to statehood. Secessionist entities exist de facto and possess elements of statehood without being seen as peers by community of states, most importantly by virtue of admission to the United Nations (UN): Territories like Abkhazia, South Ossetia or Nagorno-Karabakh Republic (NKR) in the South Caucasus, as well as Transnistria or the Turkish Republic of Northern Cyprus (TRNC), exist separately from the metropolitan state for decades but remain categorised as anything but a state: un- or non-recognised, de facto states, secessionist entities or territories, or breakaway regions.5 Having emerged from an armed conflict with(in) the metropolitan state – such On constitutionalism, albeit with a focus on Hungary and Eastern Europe, see Batory (2010), especially at 31, 33–34. 2 For a broad study on constitutional processes and precursors to their success or likely causes of failure, see e.g. Horowitz (2021). 3 Abundance of scholarship examines the discrepancy between declared values of the EU and the lived reality. For one of the most recent works, see e.g. Búrca (2022). For a comprehensive account of the instruments and their efficacy, e.g. Jakab & Kochenov (2017). 4 One could, however, argue that unrecognised entities are the beneficiaries of the main safeguard of international stability: The prohibition of force pursuant to Art. 2 para 4 of the UN Charter. Not only that the wording of this provision speaks of ‘any’ State, also the Tagliavini Commission declared this norm applicable in the Georgian conflict scenarios. See Independent International Fact-Finding Mission on the Conflict in Georgia (Tagliavini Commission) (2009) Vol. II, at 239–240. 5 The term de facto state enjoys widespread usage in the scholarship on political sciences and international law. See e.g. Caspersen (2012); Berg & Mölder (2012); Toal (2011); This concept was introduced into European legal scholarship by Jochen Frowein; see Frowein (1968). 1

128

Unrecognised entities: politics of constitutionalism at the fringes  129 as Georgia or Azerbaijan – recognition is denied to these entities, by other states but most importantly by the metropolitan state from which they have seceded.6 Their emergence that challenges the perceived boundaries of international law precludes them from assuming the rights and obligations afforded to states. Oscillating in a gray zone, a most uncomfortable one as far as international law is concerned,7 the phenomenon of an unrecognised entity – the term which will be used in this chapter – defies to be simply ascertained by the dichotomies of lawful vs. unlawful or state vs. non-state.8 Even in this ambiguous environment, reflecting on the politics of constitutionalism is more than warranted, as a lens through which an entity justifies and affirms its identity by legal means. Alongside the familiar terrain of state-driven processes in this respect, constitutionalism is a fundamental manifestation of the respective entity’s identity, aimed to counter the claims of its alleged non-existence.9 The social reality in these entities is, indeed, governed by constitutional frameworks resembling those of established states; in this respect, constitutionalism that comes from a place in which recognition is a scarce commodity amplifies the inherently relational nature of constitutional law: positioning oneself in relation to other states and to the individuals within its jurisdiction by means of a supreme law. This chapter will inquire how the fringe existence of unrecognised entities is reflected in their politics of constitutionalism. The social reality experienced in unrecognised entities is as broad as the very number of regions designated as such. Accordingly, this chapter will narrow down its exploration of constitutionalism at the fringes in the following two ways. An unrecognised entity examined as the object of the present analysis will, first, be understood as follows. It has unilaterally seceded from its metropolitan state, which opposes this entity’s claim to statehood. Due to the contestation of the metropolitan state, this entity is (mostly) not recognised by other states and is, importantly, denied membership in the UN or other international organisations. The entity does, however, possess an effective and consolidated existence, usually for decades, and fulfils most, if not all, of the elements of statehood. Legally speaking, the situation can be summed up as an unresolved collision between the principle of self-determination invoked by the entity, and the principle of territorial integrity relied on by the metropolitan state.10 Fundamentally, unrecognised entities hold a difficult relationship with the international-law principle ex iniuria iuria non oritur;11 the notion that illegal acts do not give rise to law presupposes a clear Vidmar (2022), 31–33. Roland Rich expressed the discomfort caused to international law by the many claims for independence following the collapse of empires: ‘Yet, there is no disposition in the international community to open the door to numerous claims of independence and secessionist actions throughout the world. Lying uncomfortably between these principles and the practice of realpolitik is a wide grey area in which international law finds itself.’ Rich (1993), 63. 8 Dealing with this phenomenon means to be confined to vague commonplaces of international law in pursuit for some normative guidelines as to the entities’ existence. As these entities are within a gray zone for which the self-determination vs. territorial integrity dichotomy fails to conclusively appraise their existence, one is, thus, compelled to transcend the disciplinary boundaries of international law not only as helpful tool but as necessary approach. 9 See e.g. Ghazaryan (2022); Gabrichidze (2022). 10 Vidmar (2012), 363, as cited by Ghazaryan (2022), 178. 11 According to this principle of international law, breaches of law, particularly of ius cogens, must not give rise to a legal entitlement. The self-declared republics in East Ukraine or Crimea constitute flagrant breaches of international law whose very existence should not get rewarded as the implementation 6 7

130  Research handbook on the politics of constitutional law definition of what is the applicable ‘law’ and what rights and obligations – and for whom – it entails in the context of aspired secession. In regard to many unrecognised entities, the situation pertaining to their ‘lawfulness’ is less than obvious: a plethora of circumstances, such as authentic grievance voiced by the titular population of the entity vis-à-vis the metropolitan state, consolidated and effective existence de facto for a significant amount of time after a formal declaration of independence as well as reasonably disputed facts underlying the conflict preclude the desired clarity as to the lawfulness of how the entity has emerged. Particularly, the role of patron states is often being seen as unlawful, and, in the eyes of the metropolitan states, degrading those entities into puppet states, or, in the parlance of Crawford, a ‘cloak for illegality’.12 Indeed, as long as they lack the recognition of the metropolitan state, these entities will, as state practice suggests, remain at the fringes of the international community.13 In short, state practice trumps the Montevideo principles14 and perpetuates perceived inequalities in international relations. Even if the declaratory theory of recognition carries hopes and ambitions: To act as a state, one has to be seen as such. This chapter will not delve into the arguably messy affair in international law as to whether a right to external self-determination exists or not. However, we are departing from the premise that it is fair to acknowledge agency of unrecognised entities – Abkhazia, South Ossetia, Nagorno-Karabakh, Transnistria among them – as legal subjects in their own right,15 with social realities of entities that cannot be easily dismissed as ‘non-existing’, legally or

of the ex iniuria principle seems to be adequately applicable in this context. Still, one has to be mindful of the practical problems of the principle: the support for the secession of Kosovo can also only be upheld in light of the ex iniuria principle, provided that these very supporters assert that the independence of Kosovo and the support thereof was a lawful act. See: Rossi (2015), 165. 12 Crawford (2011), 78. 13 Kosovo is to be mentioned in this respect: The practice has shown that the lack of recognition by its metropolitan Serbia impedes its quest for full-fledged statehood; its efforts towards universal recognition and participation in international organisations remain fraught. Yet, it can be distinguished from other unrecognised entities due to: its recognition by many states including the US, the UK, Australia, most of the EU Member States, numerous states across the continents; its partial inclusion into international frameworks of the Council of Europe and the EU, without however touching upon its status. See e.g. Van Elsuwege (2017). 14 d’Aspremont has made a compelling observation that the 1933 Montevideo Convention on Rights and Duties of States as the main legal source concerning the identification of statehood is fabricated: Thereby he speaks of ‘imaginary genealogy’, which aims to connect preexisting doctrines with international instruments as an artefact. See d’Aspremont (2018), 40, 81. It can be seen with bewilderment that decades before the adoption of the Montevideo Convention, the German legal scholar Georg Jellinek drafted the so-called ‘three element doctrine’ concerning the definition of statehood so that the very statehood’s systematisation – long before the Montevideo Convention – came with a specific historical narrative that has its roots in German public law thinking (ibid, 84). See also the critical analysis of the Montevideo principles by Vidmar (2022), 31, 34. 15 The Peoples’ Republics of Luhansk and Donetsk (LNR and DNR) are to be strictly distinguished from other secessionist entities in this regard as overwhelming evidence suggests not only their complete dependence on Russia: Both have emerged as a consequence of direct military intervention by the Russian Federation since 2014 and, thus, do not meet the criteria as elaborated above. Consider in this respect: DNR und LNR constitutions replicate the Russian constitution. For more, see Petrov (2022), 215. The Ukrainian territories including Luhansk and Donetsk were annexed by Russia in September 2022.

Unrecognised entities: politics of constitutionalism at the fringes  131 otherwise.16 We argue that the structure of international practice has been complicit in denying these entities the capacity to make their own choices and to be seen not only through the prism of patron states. Without embracing the ex factis approach or, let alone, endorsing secession, the chapter will acknowledge that unrecognised entities have certain constitutional orders and, accordingly, inquire into the social realities expressed in what might be called fringe constitutionalism. Primary attention will thereby be given to the functions that constitutionalism fulfills and will explore selected aspects thereof: the relationship between the state and the individual, especially in the area of human rights. Attention will be paid to this aspect because – as we argue – it is well suited to pierce the veil of liberal democratic formulas enshrined in the unrecognised constitutions and thereby unveil the actual politics of constitutionalism where it matters most from a liberal perspective: the protection of individual against arbitrary uses of power.17 The main argument presented in this chapter is this: At the fringes of statehood, the politics of constitutionalism is distinct in the way it has adapted the general concept of a liberal democratic constitution to the realities on the ground. As will be shown, among features that stand out in this respect are an exaggerated relationship with international law and an ethnocratic form of political participation, struggling to guarantee the substantive parameters of justice. Still, even at the fringes of statehood, unrecognised entities express their capacity in constitutionalism and, thus, confirm agency.

2.

CONSTITUTIONALISM AT THE FRINGES

2.1

General Observations

An inquiry into the politics of constitutionalism begins – necessarily, even – with a constitution; and all unrecognised entities possess one.18 Corresponding to the gray zone character of these entities, the adoption of these documents does not follow the conventional path. Abkhazia, for instance, adopted its constitution in 1994, although its declaration of independence was announced only in 1999, following a constitutional referendum – oddly enough, the elaboration of the constitution preceded the very declaration of independence!19 Consider, also, that the sovereignty of the NKR was proclaimed by a parliamentary law on the ‘Basic Principles of State Independence’ – essentially a constitutional-esque act – in the early 1990s, whereas the first constitution of NKR was adopted only in 2006 by way of a referendum.20 The declaration of independence, the consolidation of effective control, and the democratic processes to adopt a constitution may thus occur at vastly different points in time in unrecognised 16 In this regard, Narine Ghazaryan speaks of the ‘objective social and political reality on the ground’, which permits analysis of the ‘unrecognized’ legal order. See Ghazaryan (2022), 179. 17 See e.g. Christman (1991), 343. 18 For English-language translations, see: Constitution of Abkhazia, https://​unpo​.org/​article/​ 697; Constitution of the Republic of Artsakh (NKR), http://​www​.nkr​.am/​en/​constitution​-of​-Artsakh; Constitution of the Turkish Republic Northern Cyprus (TRNC), http://​hrlibrary​.umn​.edu/​research/​cyprus​ -constitution​.html; Constitution of the Pridnestrovian Moldavian Republic (Transnistria), https://​mid​ .gospmr​.org/​en/​constitution. 19 For more, see e.g. Trier (2010), 74ff. 20 Ghazaryan (2022), 197.

132  Research handbook on the politics of constitutional law entities,21 reflecting a tumultuous nation-building amidst armed conflict and the parallel development of a siege mentality. Still, a common feature in this regard is that the constitutions are adopted by a referendum, as illustrated also by the South Ossetian constitution of 2001.22 Reliance on democratic instruments indicates an effort to advance and bolster the entities’ claim of legitimacy even if both the legality as well as political legitimacy of these plebiscites have been severely questioned by the international community.23 Constitutions adopted by these entities articulate external and internal functions, or, put differently, rationales. The external one gravitates around affirming the entity’s statehood as based on the principle of self-determination under international law. What stands out in this respect is an exaggerated relationship with international law that is reflected in the enhanced textness of the constitution; the entity thereby goes to great lengths to expressly justify the statehood’s just cause vis-à-vis the outside world. Cutting ties with the metropolitan state from which it has seceded goes hand in hand with an emphasised demonstration of aptitude for entering into relations with other states, as will be elaborated below. It must not go unnoticed in this regard that the principle of self-determination – or the exercise thereof – does not presuppose the creation of a democratic order, nor does it guarantee recognition as a state.24 Still, the popular legitimation within the entity itself is intertwined with the promise of political participation – something that was perceived as sorely lacking in the metropolitan state. In this light, the internal dimension of a de facto constitution is concerned with establishing a democratic order, as well as forging a parallel relationship between institutions and between the entity and the individual. This involves among other things a number of politically pertinent features: citizenship, individual rights as well as political participation. Similar to the somewhat exaggerated and inflated position of international law, these constitutions go to great lengths to empower the titular nation by means of ethnocratic governance. Performing as a consolidating factor in creating a nation-state and thus protecting the titular nation which perceives itself as previously oppressed by the metropolitan state,25 the ethnocratic form of governance is apt, as discussed below, to entrench already simmering ethnic tensions – this time within the entity rather than between the entity and its metropolitan state. The above rationales of constitutionalism are not entirely alien to contemporary states, with the attributes of external and internal sides of legitimation present throughout constitutionalism of established statehood. However, if we pause for a moment and look at states which, like most of the unrecognised entities drawn upon in this chapter, emerged from the USSR, their constitutional processes have been driven by other forces. The domestic processes in these

The case of Abkhazia is illustrative insofar, as proponents of the Abkhaz independence point out previous constitutions, prior to the break-up, as means to justify independence. See Viacheslav Chiribka’s insistence that the ‘Constitution of Abkhazia of 1925’ enshrined the State’s sovereignty. Chiribka (2000), 234. 22 For more, see Gabrichidze (2022), 235. 23 The plebiscites are questioned for good reasons – these places have seen mass expulsions so that many could not participate in the referenda. For instance, after the Georgian-Abkhazian conflict erupted, hundreds of thousands of Abkhazian residents (ethnic Georgians, Greeks, Armenians) were displaced or fled. See Trier (2010), 29; Gabrichidze (2022), 230. Exclusion of ethnic Azerbaijanis also resulted in international critique for democratic processes in NKR. See Ghazaryan (2022), 198. 24 Ghazaryan (2022), 197. 25 In a particularly strong case of ethnic conflict, Abkhaz generally see Georgians as invaders. See Trier (2010), 20–21. 21

Unrecognised entities: politics of constitutionalism at the fringes  133 states were triggered by moments of dissidence and demand for change26 – which could be compared to the context of unrecognised entities – but states emerging from the USSR relied on long-standing traditions of statehood27 and benefited from what could be called an international factor pertained to a high degree of international involvement from the very outset.28 In the European post-Communist context, this process was accompanied by the Council of Europe (CoE), including the Venice Commission, and even, as for the three Baltic States, by an express promise of EU membership, which was realised a mere 14 years later.29 The immediacy of international acceptance of states which emerged after the dissolution of the Soviet Union has not only affirmed their statehood; this also placed them under the pressure of democratisation, calls for judicial and human-rights reforms as well as, more generally, international scrutiny. We witness here an incorporation of domestic constitutional processes into inter- and supra-national as well as multilevel frameworks of minimum standards and judicial oversight. This incorporation is far from linear: Russia is no longer a contracting party of the CoE and the European Convention on Human Rights (ECHR) following its invasion in Ukraine; systemic capture of judiciaries in Poland and Hungary illustrate, in addition, regression in rule-of-law compliance within the European Union. This does not, however, negate the overall impact of international structures on domestic politics of constitutionalism. Fringe constitutionalism of unrecognised entities draws strongly from the above-mentioned forms of constitutional frameworks; the substance of the legally unrecognised constitutions is, however, dominated by the narrative of non-existence and the struggle to change it. In this respect, the external dimension of the de facto constitutions manifests a painfully felt need to justify one’s legal and not merely factual existence, by numerous references to the principle of self-determination in particular. Constitutionalism at the fringes of statehood is, indeed, far from oblivious to its disputed status under international law and does not seek to omit this question; quite on the contrary, it is adamant to affirm its separateness from the metropolitan state and its belonging to the community of states. The entities in question oscillate on the edge of separation and belonging, both of which remain incomplete if they were to remain merely factual, so their constitutional acts aim to close this gap of legal non- or scarce existence. Consider in this regard Article 1 of the Constitution of Abkhazia which proclaims it ‘a sovereign democratic state based on law, which has historically become firmly established by the right of nation to self-determination’. Similar formulations may be found in the preamble to the Constitution of the Republic of Artsakh (NKR).30 The constitution of South Ossetia evokes similar sentiments conferring upon the latter the prerogative to ‘independently determin[e] its state-legal status’ (Article 3 para 1) and identifies the protection of South Ossetia’s sovereignty and territorial integrity as ‘one of the key functions of the state’ (Article 3 para 3). The affirmation of statehood on the basis of international law is accompanied by provisions on international treaties in anticipation of inter-state relations. The constitutions of Abkhazia and NKR, respectively, regulate already Muiznieks (1995). See for instance Mälksoo’s work on the notion of continued statehood of the Baltic States: Mälksoo (2022). 28 Bardi, Rhodes & Senior Nello (2002), 227. 29 Blokker (2018), 5, 6. 30 The Preamble refers to ‘the right to self-determination’, ‘historic traditions of national statehood’, ‘exercising their sovereign and inalienable right’, ‘dream of [the] ancestors to freely live and create in their homeland’, see the English translation under: http://​www​.nkr​.am/​en/​constitution​-of​-Artsakh. 26 27

134  Research handbook on the politics of constitutional law in their foremost provisions the status of international law, and explicitly, of international treaties. Article 3 of the Abkhazian constitution establishes in this regard that Abkhazia ‘shall enter treaty relationship with other states’ as ‘a subject of international law’. Being aware that values do matter in initialing international relations31 and that their mere effective existence is insufficient for the international community to start interacting with them, the entities in question engage the first, external, rationale of a constitution to create a certain image that they are moving from the brutum factum of existence – and particularly the way how their existence emerged – to a normative legalistic discourse. Nowhere else is this more prevalent and visible than in the explicit, detailed and precise ways of how these constitutions regulate the interaction between domestic and international law, even if this is an academically moot feature as no other state interacts in this formal way with them. Still, Article 5 para 3 of the Constitution of NKR states that ‘[i]n case of contradiction between the norms of international treaties ratified by the Republic of Artsakh and those of [domestic] laws, the norms of the international treaty shall apply.’32 The constitution of Transnistria, by the same arguably soft monistic token, lays down in Article 10 its legal system and its relations ‘with other states’ as founded on ‘[u]niversally recognized principles and norms of international law, as well as international treaties of the Pridnestrovian Moldavian Republic’. This is a noteworthy feature given the fact that sometimes the kin state interacts in a formal way with the unrecognised entity. The kin state Armenia has not, however, formally recognised NKR,33 just as Transnistria has been ‘recognised’ by other unrecognised entities only.34 Being mindful of the danger to turn these provisions into moot parchment rules, we are able to witness an interesting phenomenon in this regard. Treaties signed between unrecognised entities with one another35 as well as other forms of bilateral diplomatic practice occur such as accepting ambassadors from another unrecognised entity.36 The Constitution of Transnistria, also, establishes principles of its foreign policy, which include the respect for a ‘sovereign equality of states’ and non-use of force among others.37 Hence, some quasi-simulation of legally handling international relations is being exercised. Yet, there is also some limited interaction with the world of recognised states. South Ossetia and Abkhazia – both have been recognised by Russia and a few other states – have not only

See e.g. Art. 49 of the Treaty on European Union (TEU), which makes accession to the EU conditional upon respect for the common values of the EU under Art. 2 TEU. Similarly, Art. 3 of the CoE Statute requires every signatory state to ‘accept the principles of the rule of law’ and other values underpinning the aims of the CoE. 32 This alone speaks volumes on gaining the sympathy of the international political audience of this constitution: The NKR institutions seemingly adhere to a more monistic, and thus, modern reading of international law and as a repudiation to the conservative dualist conception. 33 In practice, it should be said that Armenia and NKR are considered to ‘function very much as a single space’. See Berg & Vits (2018), 397. 34 Wolfschwenger & Leontiev (2022), 249. 35 See e.g. Treaty of Friendship and Cooperation of Abkhazia and Transnistria, 22 January 1993. 36 For instance, the president of one unrecognised entity will accept the credentials of an ambassador from another unrecognised entity. See e.g. ‘Eduard Kokoity Accepted Abkhaz Ambassador to S. Ossetia Nodar Pliev’s Credentials’, Official Site of Sergey Bagapsh, President of the Republic of Abkhazia, 10 December 2010, https://​web​.archive​.org/​web/​20120327142027/​http://​www​.abkhaziagov​.org/​en/​news/​ detail​.php​?ID​=​35402. 37 Art. 10 of the Constitution of Pridnestrovian Moldavian Republic (Transnistria). 31

Unrecognised entities: politics of constitutionalism at the fringes  135 signed treaties with other non-recognised entities, but also with Russia. These treaties cannot be regarded as legal nullities: In the Russian legal order, they do enjoy supremacy over Russian law pursuant to Article 15 (4) of the Russian Constitution.38 Between 2009 and 2015 alone, Russia signed 36 agreements with South Ossetia and 42 agreements with Abkhazia, on military, border delimitation, economic and other subjects.39 While these agreements can be seen as expression of sovereignty and are also listed as ‘international treaties’ by Russia, on the flipside they serve as means to even deeper entrench and strengthen their dependence on their patron state.40 A certain vicious circle is at play here: This exercise of an aspired sovereignty only reinforces claims that the entity is being drawn close into Russia’s immediate influence sphere and thus, signals the very opposite of a sovereign subject. In other words: The more these entities attempt to exercise their independence, the less they appear so. As for Abkhazia, the entity vehemently resisted against the inclusion of certain provisions into the 2014 Treaty between Russia and Abkhazia on Alliance and Strategic Partnership that would have eliminated the character of independence.41 The entanglement between Russia and South Ossetia, on the other hand, is aggravated also by the fact that the South Ossetian constitution essentially copies the Russian constitution,42 and that its treaty relations with Russia are based not only on cooperation but also, expressly, on ‘integration’.43 Therefore, the exercise of international interaction may even deepen the prism through which they are seen: As puppets of a powerful patron state, entirely devoid of their own agency. Aside from treaty-making manoeuvres, some of these entities are active in opening their domestic legal order to international law principles. In Abkhazia, the Constitutional Court, which was established in 2016 as the realisation of a dominant and long discourse among the citizens to establish some form of authoritative constitutional oversight,44 has started to become comparatively active since its very inception. A curious case occurred in June 2019, when – by referring inter alia to Article 23 of the Universal Declaration of Human Rights

Evidently, the Secretariat of the UN refuses to register these treaties in accordance with Art. 102 of the UN Charter even if it stipulates in para 1 that ‘Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.’ The consequence is to be read in para 2, namely that no party to such treaty can invoke that treaty before any organ of the UN. However, it needs to be said that also treaties with Kosovo are not registered pursuant to Art. 102 of the UN Charter. 39 Ambrosio & Lange (2016), 674. 40 Ibid, 680, 690. 41 The first draft, which was proposed by Russia to Abkhazia, was outright rejected by the Abkhazians, because the initial title entailed the word ‘integration’ instead of ‘strategic partnership’. See ibid, Ambrosio and Lange, 684. Also, in contrast to an earlier draft that would have foreseen a gradual absorption of Abkhazia into the Russian orbit, the Abkhazians successfully insisted to have an explicit provision included in the Treaty that obliges Russia to pursue the international recognition of the country. See Treaty between the Russian Federation and the Republic of Abkhazia on alliance and strategic partnership of 24 November 2014, original: ‘Dogovor mezhdu Rossiiskoi Federatsiei i Respublikoi Abkhaziia o soiuznichestve i strategicheskom partnerstve’, http://​www​.kremlin​.ru/​supplement/​4783. 42 Gabrichidze (2022), 235. 43 See the Treaty on Alliance and Integration between Russia and South Ossetia, 19 March 2015. 44 Bagdasaryan & Petrova (2017), 114. To exemplify further, it has been a remarkable and regrettably hardly noticed development that as of March 2021, Liudmila Khodzhashvili – very recognisable by her Georgian family name – has been elected as Chief Justice of the Abkhazian Constitutional Court. See: ‘Predsedatelem abkhazskogo Konstitutsionnogo suda stala Liudmila Khodzashvili’, Ekho Kavkaza (2 March 2021), https://​www​.ekhokavkaza​.com/​a/​31128909​.html. 38

136  Research handbook on the politics of constitutional law (UDHR) as well as to Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as, in the parlance of the Constitutional Court, explicitly recognised by the Republic of Abkhazia – declared a particular law to be unconstitutional and instructed the legislator to undertake the necessary changes.45 Apart from proclaiming the relationship between the different – domestic and external – legal spheres, the introduction of formal democracy including regular elections in the constitutions are also seen as a crucial element related to the much-desired international recognition in these entities.46 Constitutions of unrecognised entities painstakingly attempt to present themselves as liberal democratic republics. The proclaimed commitment to democracy thus manifests the internal aspect of self-determination. Each of the constitutions discussed in this chapter puts emphasis on the titular people as the source of the sovereign power, the separation of powers, free elections and local government.47 Quite on par with many established states, compliance with democratic standards can be strenuous in practice.48 De facto constitutions likewise proclaim commitment to social justice. To illustrate, South Ossetia institutes ‘a socially oriented market economy regulated by the state’ (Article 9), whereas NRK strives towards a social democratic model of governance (Article 11); in this regard, Ghazaryan has described this objective as means to stop the ‘exodus’ of the population.49 She does not neglect to mention the high grade of militarisation, with every male citizen subjected to mandatory conscription.50 This offers a glimpse into a sobering reality on the ground consisting of economic struggle and living in the shadow of a conflict bound to flare up since its ‘frozen’ state is vulnerable to shifts in power balance between the states having claims in relation to the unrecognised entity.

45 See: Postanovlenie Konstitutsionnogo Suda Respubliki Abkhaziia po delu No. 03/3, 2 June 2019, https://​ksra​.info/​ru/​item/​96​-postanovlenie​-konstitutsionnogo​-suda​-respubliki​-abkhaziya​-po​-delu​-03​-z. The entire case revolved around a contentious passage of the Constitutional Law ‘On the Cabinet of Ministers (Government) of the Republic of Abkhazia’ which provided, that – in the case of resignation of the Cabinet of Ministers – with some notable exceptions, the contracts of all employees are to be terminated instantly, while at the same time, these persons continue to fulfill their duties until a new Cabinet is established. In a civil case, a former employee lodged a complaint at the Sukhum(i) City Court and demanded reinstatement into work as well as wage payment. The Constitutional Court ruled that the literal meaning of this law is more than uncertain and discriminates against workers in connection with the resignation. 46 Kopeček, Hoch & Baar (2016), 89. 47 See in particular Art. 1, Art. 5, Art. 7 of the Constitution of South Ossetia; Art. 1, Art. 2, Art. 7 of the Constitution of Abkhazia; Art. 1, Art. 6, Art. 7 of the Constitution of Transnistria. On the rather elusive notion of a ‘sovereign people’ as well as its complex relationship with political representation, see also the chapter by Oklopčić in this volume. It is fair to suggest the very notion of disputed statehood discussed in the present chapter supports the points made by Oklopcic on the subjective and multiple meanings behind the notion of a ‘people’. 48 To draw on a recent example, following the armed struggle with Azerbaijan in April 2016, NKR changed its name to the Republic of Artsakh, the Armenian name of the territory; the referendum by which the name was changed attracted critique for serving to consolidate president’s powers and falling short of democratic standards. Freedom House 2018, Report on Nagorno-Karabakh (2018), https://​ freedomhouse​.org/​country/​nagorno​-karabakh/​freedom​-world/​2018, as cited by Ghazaryan (2022), 177. See also the comment in fn 23, for demographic reasons to be critical of referenda in the entities concerned. 49 Ghazaryan (2022), 178. 50 Ghazaryan, ibid.

Unrecognised entities: politics of constitutionalism at the fringes  137 The volatile conditions underpinning the existence of entities in legal ambivalence may explain their ethnocracy-oriented governance hinted at earlier in this chapter. In the section below, we consider the impact of ethnocracy, but also other aspects affecting the position of the individual in the constitutionalism at the fringes of democratic statehood. If the outward perspective at the constitutionalism of fringe entities is characterised by a preoccupation with justifying one’s existence and demonstrating capacity to engage with other states, the inward dimension reveals a narrow room for manoeuvre in ensuring more than a precarious status to the residents of the entities in question. The ethnocratic orientation perpetrates exclusion: having de facto separated from the metropolitan state, the dominant group attempts to compensate the historic trauma of oppression by means of instituting its status vis-à-vis minorities styled along the patterns of a homogenous nation-state. Consolidation of a national and (quasi)state identity in this way may often result in marginalisation of other groups living in the entity. Internal legitimacy becomes, therefore, limited primarily to the dominant ethnic group. 2.2

The Individual and the Unrecognised Entity

A bird’s eye view of unrecognised constitutionalism suggests formal adherence to the forms of governance based on the principles of democracy and justice, with free elections, separation of powers as well as fundamental rights and freedoms. The entities discussed in the present chapter declare respect for international-law documents on human rights such as the UDHR and other international sources establishing civil and political, as well as economic and cultural rights.51 Considering the disputes in light of the aforementioned aspects, one may be tempted to dismiss the assumption of commitments based on these international documents as purely declaratory. However, despite the lacking external legitimation in the eyes of states or organisations, these entities do appear to enjoy internal legitimacy, i.e. acceptance by the majority of their populations.52 The ideal of liberal democratic constitutionalism implies in this regard that the possibility to participate in political processes and obtain individual justice are among the sources of legitimacy of a government, although common historical, linguistic or cultural heritage remain among key motivators for state-building. Accordingly, de facto governments of the breakaway regions discussed in the present chapters seek to draw their mandate from empowering the individual. Offering an alternative to the perceived marginalisation in the metropolitan state, the unrecognised entity thus declares commitment to ensure a high standard of individual wellbeing, within a sovereign nation-state. It is noteworthy in this regard that the NKR has almost entirely adopted the human rights as laid down in the Constitution of Armenia and has, additionally and going beyond the Armenian constitution, added the office of an Ombudsman to be elected with qualified majority by the parliament of the NKR.53 Still, it pays to look beyond the solemn declarations and inquire briefly into the practical compliance of the de facto norms governing the political participation, citizenship or official language against the benchmarks of contemporary standards. Having emerged from ethnic See e.g. Art. 11 of the Constitution of Abkhazia. For instance, Ghazaryan emphasizes that internal legitimacy is enjoyed by NKR despite the non-existent external recognition. See Ghazaryan (2022), 177. 53 Luchterhandt (2017), 213. 51 52

138  Research handbook on the politics of constitutional law conflict with the titular people of the metropolitan state, many of the unrecognised entities have created a legal and political order favouring the dominant ethnic group of the secessionist entity. Similar to being preoccupied with affirming the lawful status of the entity, constitutions of unrecognised states focus on establishing the status of the titular nation. This applies particularly to Abkhazia, which confers privileges upon persons of Abkhaz origin in relation to political participation, language rights and property ownership; political, cultural and economic aspects of state-building are thus in part confined to the titular nation. According to the Abkhazian constitution, only an ethnic Abkhaz is eligible as president (Article 49), and only the Abkhaz language enjoys the official status (Article 6), with some privileges for the Russian language.54 Unrecognised constitutionalism is indeed concerned with giving a special status to the language of the dominant ethnic group, often alongside the Russian language;55 this limits the participation rights of other ethnic groups which do not speak it to a sufficient level. Ownership of real estate or land is reserved to Abkhaz citizens, with recent proposals to extend this right to Russian nationals.56 In matters of citizenship, the titular nation may be favoured as well: ethnic Abkhaz and related ethnic groups can, for example, obtain the Abkhaz citizenship more easily than others,57 whereas most ethnic Georgians are in practice deprived of the possibility to obtain it.58 Ethnic Armenians, too, enjoy privileges in obtaining the citizenship of the NRK,59 whereas TRNC favours Cypriots of Turkish origin.60 Many unrecognised states allow dual citizenship,61 which enables residents of these territories to obtain a recognised nationality. The precarity of the legal status of individuals residing in the unrecognised entities, including members of the titular nation, is, however, manifest in this area.62 While passports issued by an unrecognised entity are not recognised as valid basis for international travel or residence abroad, most Abkhazians or South Ossetians, for instance, do not consider themselves Georgian citizens and do not possess identity documents issued by Georgia.63 The desired sovereignty thus remains out of reach: the scarce utility of the entity’s own identity documents Gabrichidze (2022), 242. Unlike in Abkhazia, Russian is established as equal to the Ossetian language in the constitution of South Ossetia (Art. 4). 56 Maria Kotova, ‘Abkhazian President proposes legalising sale of real estate to Russians’, OC Media (17 November 2021), https://​oc​-media​.org/​abkhazian​-president​-proposes​-legalising​-sale​-of​-real​ -estate​-to​-russians/​. 57 Trier (2010), 76. This matter is governed not by constitution but by the Law on Citizenship. See Gabrichidze (2022), 242. 58 Persons of non-Abkhaz origin cannot obtain Abkhaz citizenship if they have not resided in Abkhazia permanently for five years up to the declaration of independence of Abkhazia in 1999; ethnic Georgians who had been displaced cannot fulfil this condition as they were allowed to return to Abkhazia only in 1999. See Gabrichidze (2022), 242. 59 Art. 47 paras 3 and 4 of the Constitution of NKR. 60 Art. 67 of the Constitution of TRNC. 61 See e.g. Art. 3 of the Constitution of the Pridnestrovian Moldavian Republic (Transnistria); Art. 16 of the Constitution of South Ossetia. 62 The connection between citizenship policies and the status of an individual – privileged or precarious – is discussed in depth by Kochenov (2019). On the direct link between holding what is seen as a ‘third-rate’ citizenship and a sub-standard legal and economic status, see also the chapter by Kochenov in this volume. As argued by Kochenov, the very concept of citizenship is fundamentally at odds with human rights; and not by an unfortunate accident but, indeed, by design. 63 Harzl (2020), 84. 54 55

Unrecognised entities: politics of constitutionalism at the fringes  139 and the unwillingness or inability to obtain documents from the metropolitan state leads residents to acquire the citizenship of third states, specifically, that of the patron state, culminating often in the politics of passportisation.64 This exacerbates the already precarious status of unrecognised entity residents, as passportisation turns residents of unrecognised states into hostages of great power politics. Among other things, passportisation increases the influence of the state in question without significantly boosting the rights of the individuals concerned, as the cases of Abkhazia and South Ossetia demonstrate: third states are in fact not required to recognise these passports.65 The considerations above highlight the strong preference for the members of the titular ethnic group in unrecognised constitutions, often going hand in hand with privileges for the patron state, as the status of the Russian language in Abkhazia and South Ossetia illustrates. The favoured status for the titular nation may explain the longevity of these entities; it is not only the support by the patron or the kin state (e.g. Armenia’s support for the NKR), but also internal legitimacy of the de facto government. Therefore, one should not be too hasty to perceive the consolidated and long-standing existence of these entities only as a result of third-state action; this would run the risk of underestimating the instruments and attempts of these entities to obtain legitimacy by internal means. A nation-state model favouring the titular nation is widespread, including in the former socialist and post-Soviet region.66 The narrative of oppression in unrecognised entities appears to strengthen this inclination even further. Still, discriminatory practices connected to the rights of the titular nation lag behind the international standards67 and may uphold deep-set ethnic tensions.

3. CONCLUSION The preceding analysis that problematised selected features of unrecognised entities suggests that the constitutionalism at the fringes of statehood unfolds in a different setting compared to full-fledged states in a shared geographical and historical plane – in our case the context surrounding the former USSR. While unrecognised entities demonstrate and exercise agency in building partly independent constitutional orders, the starting conditions for constitutional processes whose very legitimacy and, thus, right to exist is fiercely disputed in the international community anchor the entities in a grinding rut of having to justify their very claim to statehood. Oscillating between the attractions of separation (from the metropolitan state) and belonging (to the community of states), their constitutional acts aim to close the gap between factual reality and legal non- or scarce existence. Preoccupied with a quest for survival, these entities choose, as the Abkhazian example illustrates most clearly, an ethnocratic model of governance which lags behind the modern notions of civil constitutionalism.

This term is used to describe conferral of citizenship en masse, or a broad campaign of naturalisation, aiming to advance objectives of the conferring state. See ibid, 74. 65 Ibid, 99. 66 See e.g. on the critique for language and citizenship regulation relating to Russian-speaking minorities in the Baltic States, Alijeva (2017). 67 See e.g. the European Convention on Nationality of the CoE (1997) which requires non-discrimination in nationality regulation (Art. 5). 64

140  Research handbook on the politics of constitutional law Instead of international engagement to raise the standards of democracy, human rights and the rule of law, as with most states which emerged after the collapse after the USSR, these entities find themselves in isolation. Existing outside of the orbit of international organisations, they are not subjected to systematic monitoring of compliance with standards supplied by international instruments, such as the ECHR. While many of these entities proclaim adherence to internationally protected human rights, they lack formal engagement with the Venice Commission of the CoE or the ECtHR. It is fair to suggest, moreover, that the unlikely prospects of membership in international bodies gives little incentives for the unrecognised entities to adapt their constitutions to European standards. Overall, the impression remains that in spite of the lack of external recognition, unrecognised entities continue to enjoy internal legitimacy.68 The above analysis revealed the scarcity of rights to which individuals residing in these entities are exposed, due to international isolation on the one hand and ethnocracy-oriented legal system on the other. The capacity of these entities to maintain a consolidated and relatively stable existence despite deep-set issues could be explained by considering the ‘alternative’: it is reasonable to suggest that having – or aspiring to have – one’s own state rather than living within the metropolitan state associated with major historic grievances is still perceived as a preferred option by the populations of the entities concerned. Even in short supply of high living standards and effective rights, independent statehood does not lose its appeal. From the perspective of the dominant ethnic group, the ethnocratic legal order is capable of offering an improvement to the situation quo ante. This maintains a certain mandate of trust, or internal legitimacy, of the de facto regime. The consolidation of an own identity over the course of decades reinforces the separation on the de facto level, although the duration of time passed since de facto independence does not, as such, affect the perception of non-existence from the perspective of the metropolitan state and its reliance on ex iniuria principle. Nevertheless, the limited agency available to the de facto governments keeps the constitutional orders of unrecognised entities preoccupied with countering claims of their non-existence rather than implementing modern standards of democracy, rule of law, and human rights. While international engagement, for instance by granting observer status in international organisations or bodies – such as the Venice Commission – or limited participation could help address the lagging standards of justice, the wish of states to avoid providing legitimation through participation impedes engagement. A ‘neutral’ engagement, i.e. one that ought to show no stance towards the status of the entity, may be a desideratum from the perspective of individual rights. Yet the desire for a neutral stance would overlook the realities in the region: In light of the Russian war on Ukraine, the unlawful ‘recognition’ and annexation of Ukrainian territories including Luhansk, Donetsk, Kherson and Zaporizhzhia indirectly affects also the unrecognised entities associated with the Russian Federation, like Abkhazia and South Ossetia. The constitutionalism of these unrecognised entities may find itself under increased pressure to justify its already disputed claim to statehood. We also witness an increased reliance on military means to resolve secessionist conflicts as in the case of NKR.69

As emphasised by Ghazaryan in respect to NRK, see Ghazaryan (2022), 177. For overview on renewed fighting in the region, which broke out following military losses by Russia – Armenia’s ally – in its unlawful aggression against Ukraine, see Thomas de Waal, ‘More 68 69

Unrecognised entities: politics of constitutionalism at the fringes  141 Still: The instant claim of a simplistic patron-client relationship that allows to classify these entities along the existence of puppet states cannot be made conclusively as such approach disregards entirely not only nuances of differences as in the case of Nagorno-Karabakh, but – as in the case of Abkhazia and South Ossetia – ignores the extent to which these entities have become independent indigenously and dependent on their patron state only as a direct consequence of their international isolation, with Russia being the only gateway to international relations for Abkhazia and South Ossetia. In a volatile political environment in which the supposed similarities and affinities between the so-called DNR and LNR, Crimea, Northern Cyprus and these entities are dangerously and deceptively tempting, but are nevertheless wrongly drawn, the puppet state dogma not only serves the interest of avoiding – in the parlance of Anatoly Kovler – ‘a kind of black hole in the European legal area’,70 it effectively provides advocacy for just one conflict party in a conflict that involves more than just one. Accordingly, it is reasonable to take seriously the attempts at constitutionalism by unrecognised entities, as a genuine expression of limited but nevertheless discernable agency.

REFERENCES Alijeva, Lilija. (2017). ‘Left Behind? A Critical Study of the Russian-speaking Minority Rights to Citizenship and Language in the Post-Soviet Baltic States. Lessons from Nationalising Language Policies,’ International Journal on Minority and Group Rights 24: 484–536. Ambrosio, Thomas & William A. Lange. (2016). ‘The architecture of annexation? Russia’s bilateral agreements with South Ossetia and Abkhazia,’ Nationalities Papers 44: 673–93. Bagdasaryan, Susanna & Svetlana Petrova. (2017). ‘The Republic of Abkhazia as an Unrecognized State,’ Russian Law Journal 5: 98–118. Bardi, Luciano, Martin Rhodes & Susan Senior Nello. (2002). ‘Enlarging the European Union: Challenges to and from Central and Eastern Europe: Introduction,’ International Political Science Review 23: 227–33. Batory, Agnes. (2010). ‘Kin-state identity in the European context: citizenship, nationalism and constitutionalism in Hungary,’ Nations and Nationalism 16: 31–48. Benedikt C. Harzl. (2020). ‘Passportizatsiya revisited: Extraterritorial naturalization in the cases of Abkhazia and South Ossetia,’ Archiv des Völkerrechts (AVR) 58(1): 73–101. Berg, Eiki & Martin Mölder. (2012). ‘Who is entitled to “earn sovereignty”? Legitimacy and regime support in Abkhazia and Nagorno-Karabakh,’ Nations and Nationalism 18: 527–45. Berg, Eiki & Kristel Vits. (2018). ‘Quest for Survival and Recognition: Insights into the Foreign Policy Endeavours of the Post-Soviet de facto States,’ Ethnopolitics 17: 390–407.

Storm Clouds Gather Over Armenia, Azerbaijan’, Carnegie Europe (22 September 2022), https://​ carnegieeurope​.eu/​strategiceurope/​87976. 70 Ilașcu and Others v. Moldova and Russia, Dissenting Opinion of Judge Kovler (App. no. 48787/99, Judgment of 8 July 2014). Kovler further aptly argues by distinguishing Russia’s involvement in Transnistria from the case of the Turkish effective control of the TRNC: ‘If my memory serves me right, I learned during my initial military training that the term “active duty” presupposes control of roads and railways, surveillance of strategic points (telegraph-telephone posts), and control of stations, airports, frontiers etc. Even without being a military strategist, anyone can compare the two situations: in one case 30,000 troops in a small territory inhabited by between 120,000 and 150,000 people, and in the other 2,500 officers and other ranks in a territory of 4,163 square kilometers with an 852 km-long border and a population of more than 750,000!’ (Ibid, 153).

142  Research handbook on the politics of constitutional law Blokker, Paul. ‘The evolution of constitutionalism in the post-communist countries of Central and Eastern Europe: Some lessons for the post-Soviet space’ in Roman Petrov & Peter Van Elsuwege (eds) Post-Soviet Constitutions and Challenges of Regional Integration: Adapting to European and Eurasian Integration Projects (Routledge, 2018) 3–27. Caspersen, Nina. Unrecognized States: The Struggle for Sovereignty in the Modern International System (Polity Press, 2012). Chiribka, Viacheslav. ‘Georgia and Abkhazia: Proposals for a Constitutional Model’ in Bruno Coppieters, David Darchiashvili & Natella Akaba (eds) Federal Practice: Exploring Alternatives for Georgia and Abkhazia (VUB Press, 2000) 233–78. Christman, John. (1991). ‘Liberalism and Individual Positive Freedom,’ Ethics 101: 343–59. Crawford, James. The Creation of States in International Law (Oxford University Press, 2011). d’Aspremont, Jean. International Law as a Belief System (Cambridge University Press, 2018). de Búrca, Gráinne. (2022). ‘Poland and Hungary’s EU membership: On not confronting authoritarian governments,’ International Journal of Constitutional Law 20: 13–24. Frowein, Jochen. Das de facto-Regime im Völkerrecht: eine Untersuchung zur Rechtsstellung nicht ankerkannter Staaten und ähnlicher Gebilde (C. Heymanns, 1968). Gabrichidze, Gaga. ‘The Legal Systems of Georgia’s Breakaway Regions’ in Benedikt C. Harzl & Roman Petrov (eds) Unrecognized Entities. Perspectives in International, European and Constitutional Law (Brill Nijhoff, 2022) 229–47. Ghazaryan, Narine. ‘The Legal System of Nagorno-Karabakh,’ in Benedikt C. Harzl & Roman Petrov (eds) Unrecognized Entities. Perspectives in International, European and Constitutional Law (Brill Nijhoff, 2022) 177–208. Horowitz, Donald L. Constitutional Processes and Democratic Commitment (Yale University Press, 2021). Jakab, András & Dimitry Kochenov (eds) The Enforcement of EU Law and Values: Ensuring Member States' Compliance (Oxford University Press, 2017). Kochenov, Dimitry. Citizenship (MIT Press, 2019). Kopeček, Vincenc, Tomáš Hoch & Vladimír Baar. (2016). ‘De Facto States and Democracy: The Case of Abkhazia,’ Bulletin of Geography. Socio-Economic Series / No. 32: 85–104. Luchterhandt, Otto. (2017). ‘Der Krieg Aserbaidschans gegen Berg-Karabach im April 2016 aus völkerrechtlicher Sicht,’ Archiv des Völkerrechts 55: 185–223. Mälksoo, Lauri. Illegal Annexation and State Continuity. The Case of the Incorporation of the Baltic States by the USSR. 2nd Revised Edition (Brill Nijhoff, 2022). Muiznieks, Nils R. (1995). ‘The Influence of the Baltic Popular Movements on the Process of Soviet Disintegration,’ Europe-Asia Studies 47: 3–25. Petrov, Roman. ‘The Legal Systems of the Donetsk/Lugansk People’s Republics’ in Benedikt C. Harzl & Roman Petrov (eds) Unrecognized Entities. Perspectives in International, European and Constitutional Law (Brill Nijhoff, 2022) 209–28. Rich, Roland. (1993). ‘Recognition of States: The Collapse of Yugoslavia and the Soviet Union,’ European Journal of International Law 4: 36–65. Rossi, Christopher R. (2015). ‘Ex Injuria Jus Non Oritur, Ex Factis Jus Oritur, and the Elusive Search for Equilibrium After Ukraine,’ Tulane Journal of International & Comparative Law 24: 143–73. Toal, Gerard. ‘Return and its alternatives: international law, norms and practices, and dilemmas of ethnocratic power, implementation, justice and development’ in Forced displacement in the Nagorny Karabakh conflict: return and its alternatives (Conciliation Resources, 2011) 7–22. Trier, Tom. Under Siege. Inter-Ethnic Relations in Abkhazia (Hurst & Company, 2010). Van Elsuwege, Peter. (2017). ‘Legal Creativity in EU External Relations: The Stabilization and Association Agreement Between the EU and Kosovo,’ European Foreign Affairs Review 22: 393–410. Vidmar, Jure. (2012). ‘Explaining the Legal Effects of Recognition,’ International and Comparative Law Quarterly 61: 361–87. Vidmar, Jure. ‘International Organizations and Non-State Territorial Entities’ in Benedikt C. Harzl & Roman Petrov (eds) Unrecognized Entities. Perspectives in International, European and Constitutional Law (Brill Nijhoff, 2022) 30–53. Wolfschwenger, Johann & Lucia Leontiev, ‘The Legal System of Transnistria. International and European Considerations’ in Benedikt C. Harzl & Roman Petrov (eds) Unrecognized Entities. Perspectives in International, European and Constitutional Law (Brill Nijhoff, 2022) 249–69.

9. The politics of constitution making Mark Tushnet

1. INTRODUCTION With rare exceptions, studies of specific constitution-making processes go into great detail in describing the political dimensions of the process: which interests and political parties supported the project overall, which raised concerns about specific aspects of proposals that were advanced, how parties and interest groups participated in the drafting process itself, and what positions they took in public debates and votes on adopting or rejecting any resulting proposals. Strikingly, though, general theorisations of the role of politics in constitution-making are rare.1 One can find scattered descriptive references to some group as a veto player, but almost no general accounts of where veto gates are located and the reasons they are held closed or allowed to open. And, at the most general descriptive level constitution-making processes can be understood as bargains struck among groups each of which sees advantages in establishing a (temporarily) stable governing order: so, for example, monarchs and other elites controlling a government in place find themselves needing material support in the form of taxes and military personnel from barons and bankers and offer the latter a share of governance in exchange for that support.2 This chapter seeks to identify some more granular processes. There are three prominent approaches to theorising about the politics of constitution-making. Bruce Ackerman’s influential theory of ‘constitutional moments’ offers an account that has significant descriptive inaccuracies in the service of a problematic defence of a constitution’s normative priority over ordinary legislation. Jon Elster’s identification of ‘upstream’ and ‘downstream’ constraints on constitution-making valuably directs attention to the role that existing political parties and interest groups play in constitution-making, and to the role that expectations shape the positions those groups take in these processes. Finally, studies of post-conflict, post-crisis, and ‘imposed’ constitution making, along with occasional studies of constitution-making under ‘normal’ circumstances, implicitly identify the political conditions under which constitutions are made, directing attention to the bargaining positions of relevant actors. Section 2 of this chapter examines these three versions of general theories of constitution-making. See Choudhry & Ginsburg (2016), xiii (‘the literature has had, for the most part, a bottom-up character, consisting of detailed descriptive accounts of particular national processes.’); Lerner (2011), 4 (‘The political and sociological dimensions of the process of constitution-writing have been studied by very few researchers.’). Choudhry & Ginsburg collect 28 important articles on the topic; Lerner, at p. 3, provides a list of the most important general works in the field. See also Landau & Lerner (2019). For a recent theoretically informed overview that touches on most but not all of the issues discussed in this chapter see Horowitz (2021). 2 For an economist’s and political scientist’s presentation of this argument, see North & Weingast (1989). For a historian’s, see Colley (2021). Colley focuses on constitution-making before the twentieth century, examines mostly constitution-making in monarchies and empires, and addresses numerous issues in addition to the one flagged here. 1

143

144  Research handbook on the politics of constitutional law With the arguments of Section 2 in hand, Section 3 offers a sequential account of the politics of constitution-making, beginning with what Ackerman calls the proposal stage, then turning to the selection of the process by which the constitution will be made before addressing some specific issues associated with constitution-making by constituent assemblies. A discussion of the politics of the drafting process follows, after which the chapter considers the politics of adoption/ratification or rejection. The discussion concludes with what some have identified as the ‘afterlife’ of constitutional processes that do not produce a new ratified constitution. Several notes about this chapter’s scope: (a) Its focus is on the politics of constitution-making in the late twentieth and twenty-first centuries. Some concepts and examples are drawn from studies of earlier periods, most importantly from the US experience dating from the late eighteenth century because of that experience’s role in shaping thinking about constitution-making.3 In addition, the constitutions analysed are written frames of government – creating a ‘technology’ for generating ordinary law – that are supreme and entrenched against modification by ordinary laws. (b) The chapter deals with the politics of making entire constitutions, which might be called for convenience constitutional replacements, and not with the politics of ordinary constitutional amendment. Yet, replacements and amendments exist on a continuum, with some amendments being of such significance as to amount to something like a constitutional replacement (and, more rarely some replacements might differ from their predecessors in small enough ways that they are best understood as consisting of a reenactment with minor changes).4 Sometimes the constitution in place distinguishes between amendments and replacements, requiring different procedures for the two modes of constitutional change, typically more rigorous for replacements than amendments.5 A jurisprudence about this distinction has developed, but for purposes of this chapter the relevant fact is not the jurisprudence’s normative contours but that the distinction sometimes gives the nation’s constitutional court a role in constitution-making; like the roles of other actors in constitution-making, the courts’ role, where it exists, can be made the subject of political analysis. (c) A final introductory observation, mostly about scholarship originating in the legal academy: Analysis often blends descriptive and normative analysis. Scholars define criteria for determining when a drafting process ‘works,’ such as democratic quality and longevity, identify characteristics of the successful and unsuccessful ones, such as the degree of inclusiveness and a relatively compressed but not too short time frame, and then recommend that people designing new processes incorporate those characteristics. Donald Horowitz’s valuable synthesis and extension of existing scholarship, for example, ‘makes the case for processes that are broadly inclusive of groups in the society, through the mechanism of elections, and that involve a high degree of consensus resulting from deliberation’ (Horowitz 2021, 4). For a broader temporal perspective, see Colley (2021). At least some discrete constitutional amendments reflect ordinary interest-group politics, where the interest group supporting the proposal concludes that it has the ability to secure deeper protection of its interests than through ordinary legislation. Recent examples include constitutional amendments protecting non-human animals and (a borderline case) environmental protection amendments. 5 For an overview, see Albert (2019). 3 4

The politics of constitution making  145 This form of analysis assumes, sometimes but not always correctly, that the recommended processes fall within the range of choice that politics leaves open to the designers. Sometimes, though, designers are politically constrained to depart from the recommended processes: Political considerations may force them to complete drafting within a ‘too short’ time frame, for example. Normative recommendations should regularly take into account the ways in which the politics of constitution-making constrain the choices available to those designing such processes.

2.

THREE THEORISATIONS

2.1

Bruce Ackerman and Constitutional Moments

Bruce Ackerman distinguishes between ‘constitutional moments’ and periods of ordinary politics by identifying the different motivations citizens have during the two periods.6 Ordinarily people pay only intermittent attention to politics, devoting their time to the daily pursuits of living. They leave politics to professionals such as interest groups (NGOs) and politicians, intervening only at election time to endorse or repudiate retrospectively what the professionals have done. Constitutional moments differ, according to Ackerman, because citizens actively participate in thinking about and agitating for constitutional reforms. Rather than delegating authority to political professionals and accepting short-term interest-group bargains, citizens take authority upon themselves – by demonstrating in the streets and participating in other ways in broad social movements – and, importantly, think about what will be in the long-term advantage of the nation as a whole rather than about their own personal short-term interests. The upshot of this shift in political concern is that after a constitutional moment is memorialised in constitutional change the new norms have greater weight than ordinary laws because deliberation about the new norms is ‘deeper’ (in some sense) than deliberation about ordinary laws. The distinction Ackerman draws, then, supports constitutional supremacy and entrenchment. Ackerman’s account captures many important features of many constitution-making processes but it is, as his later work indicates, more like a Weberian ideal type than an even loose-fitting description of actual constitution-making processes. (a) The term ‘moment’ is misleading to the extent that it suggests that the phenomena Ackerman describes occurs only within a relatively compressed time period. Some processes do occur within such a period (especially when the process is a post-crisis or post-conflict one, as in central and eastern Europe after 1989), but others take substantially longer: a decade or more for the United States at its founding, about a decade or 6 Ackerman (1991). In this work Ackerman sets out a general account of constitutional moments and a general account of the temporal flow from proposal to deliberation to adoption (or rejection). Ackerman invoked those accounts in his oversimplified account of post-1989 constitution-making in central and eastern Europe, an account that he has occasionally reverted to to explain constitutional backsliding in Hungary and Poland. Ackerman (1992). He also offers a specification of how that flow occurs in US constitutional history, emphasising in particular the roles of the President and Congress at different stages. In contrast to the distinction between constitutional moments and ordinary politics, that specification is not, and is not intended to, generalise to all constitution-making processes.

146  Research handbook on the politics of constitutional law so in contemporary Chile. This matters for Ackerman’s account because, though it is plausible to think that ordinary citizens shift their attention from the mundane activities of daily life to high politics for a short period, it is less plausible – indeed inconsistent with Ackerman’s own story about individual motivations – to think that they do so over an extended period. (b) The distinction between how ordinary citizens and professional politicians act during ordinary times and constitutional moments is overdrawn. The core lesson of almost every detailed study of constitution-making is this: As constitution-making processes move forward, the leaders of political parties assess the implications of proposals for their prospects of electoral victory and intervene in the processes to promote the very interests that they seek to advance during periods of ordinary politics. Their behaviour differs somewhat from that during ordinary politics but not dramatically so. And, importantly for Ackerman’s story, those who support them during ordinary times tend to do so during constitutional moments. Further, an important lesson of studies of ‘ordinary’ statutory reforms or discrete constitutional amendments is that sometimes deliberation over them takes on a constitutional cast (Waldron 1999). Ordinary people and politicians see the statutory proposals as vindicating existing or emerging constitutional values.7 The upshot of these observations is that the most one can say is that the proportion of short-term versus long-term thinking shifts somewhat toward the latter during constitution-making periods. A full account of constitution-making, then, will have to include significant attention to the role politicians and short-term interests play in the process. Every participant at every stage brings to the evaluation of the positions available a mix of short-term, ‘ordinary’ interest-based thinking and long-term, principled thinking. Further, those forms of thinking are always probabilistic: Participants ask, ‘How likely is it that taking one position rather than another will advance the mix of ordinary and principled values I hold?’ As the process moves forward, some opportunities are foreclosed, others open up, requiring regular reevaluation of these calculations. The calculations are really guesses based on current information and general background knowledge, and so are inevitably inaccurate. Notably, constitutional drafting does not occur behind a complete veil of ignorance. Participants almost always have a sense of the likely short-term outcome when the new constitution goes into effect. In South Africa or United States, drafters were quite sure that they knew who the first president was going to be. In addition, participants will have varying time-horizons: Some will be concerned only with what is likely to occur in the first few years of implementation, others with long-term effects (about which judgments are more likely to be inaccurate). Research has not as yet generated solid evidence on the effects of the incomplete veil of ignorance and varying time-horizons. The most one can confidently say is that they are considerations to be taken into account when analysing the choices constitution drafters make. (c)

As indicated, Ackerman’s account is designed to explain constitutional supremacy and entrenchment: The outcome of constitutional moments deserves normative priority over

This understanding has generated important studies of ‘quasi-constitutional’ statutes or, as they are sometimes called in US scholarship, ‘super-statutes.’ See Eskridge & Ferejohn (2010); Albert & Colón-Rios (2019). 7

The politics of constitution making  147 ordinary laws because the quality of deliberation is better during constitutional moments.8 Though not directly relevant to a treatment of the politics of constitution-making, it is worth noting that this normative claim is open to question: Ordinary laws sometimes respond to changes in factual circumstances and normative preferences among the nation’s people that were not anticipated – and often could not have been anticipated – during the relevant constitutional moment. This kind of mismatch produces attempts to interpret constitutions to licence the ordinary laws, with the effect, again, of weakening the distinction between decisions said to have been made during the constitutional moment and those made during ordinary politics.9 2.2

Jon Elster and Upstream and Downstream Constraints

Bracketing the drafting process itself, Jon Elster identifies upstream and downstream constraints on that process.10 These constraints are rough conditions on getting the process started and on ending it, expressed through institutions such as political parties and social movements that mediate popular participation by deploying resources to affect both the process and the substance of constitution-making. Upstream constraints pick out those whose agreement is necessary for initiating a formal constitution-making process. Consider a post-crisis process after street protests and complaints by minority parties have generated a government collapse. Who will participate in the constitution-making exercise? If the process consists either of negotiations over the new constitution itself or more modestly over the arrangements for convening a constitution-drafting body, who will participate in the negotiations? Or consider a post-conflict process where a number of groups have faced off against each other. Which of those will engage in the negotiations? Sometimes an important upstream constraint is placed on the process by the interests of non-domestic actors, including foreign investors. Which domestic groups will be taken as proper spokespersons for those interests? Elster understands that there are no general answers to such questions. Rather, they will be resolved with reference to the distribution of political power when the issue of negotiation emerges. Identifying participants in the process is a constraint, though, at least in the sense that a process that fails to include politically relevant actors is likely to fail more generally. In the twenty-first century another upstream constraint has become important. That constraint is legality. As already noted, some constitutions specify conditions for their own replacement. Some require that the legislature initiate the replacement process, others require that the replacement process can begin only after popular approval in a referendum. And overarching all this are general theories about the constituent power – the foundational power to 8 The saying that constitutional review is an appeal from Peter drunk (legislatures during ordinary politics) to Peter sober (the people during constitutional moments) captures this idea. So too, to some extent, does the metaphor of Ulysses and the Sirens, though that metaphor can be given a less normative interpretation, as explaining how constraining a decision-maker can result in a net increase in that decision-maker’s ability to promote the public good. On that metaphor, see Elster (1984) and Holmes (1995). 9 For an example, see Matsudaira, this collection. 10 Elster (1995). Subsequently Elster devoted attention to the drafting process. See Section 3.2 below. Ginsburg & Bisarya (2022) provide several case studies guided by Elster’s framework, which they expand upon in their introduction.

148  Research handbook on the politics of constitutional law create a new constitution. The relevant constitutional provisions and, even more, the theories of constituent power are generally rather abstract, leaving space for legal arguments over how to begin the constitution-making process. With such arguments available, legality operates as an upstream constraint in two ways: (a) it becomes a rhetorical resource deployed by political parties and NGOs that would be favoured by one or another interpretation of the provisions and theories; and (b) it can make the courts an institutional constraint. Judicial rulings can shape the replacement process, with important political effects – and can do so even if the judges see themselves are merely following the law. At the same time, observers can attribute the rulings to the fact that the judges are consciously or unconsciously responding to the political conditions at the time. Legality is a constraint, not an absolute bar to action. Sometimes judicial interventions have no obvious effects. After Iceland’s highest court held that members of a constitution-drafting body were unlawfully chosen, the parliament simply reappointed the very same members, satisfying the court’s objections.11 Hugo Chávez won an election on a platform calling for constitutional replacement, but the constitution in place appeared to require that such replacements be initiated by the legislature, where Chávez lacked a majority. Chávez bypassed the parliament by convening a constituent assembly. Relying on an available theory of the constituent power, Venezuela’s high court allowed the process to go forward; some observers attribute the court’s action to the fact that it was cowed by the popular support Chávez had, though evidence for that assertion is thin. Upstream constraints must be satisfied to get a constitution-making process going. Downstream constraints must be satisfied for the process to end with an adopted constitution. Suppose a proposed constitution must be ratified in a referendum. Political parties and interest groups can mobilise in the referendum campaign to oppose a proposal that fails to take their concerns adequately into account (as they see it).12 Similarly with a proposal that must be endorsed by the legislature. The Icelandic process foundered in part because it had been organised over the opposition of some parties represented in parliament. The key feature of downstream constraints, though, is not their function as veto-gates through which a proposal must pass. They are more important because expectations about how important groups will react to constitutional proposals can shape the proposals themselves. If drafters anticipate that investors will mobilise effectively against a proposal if they fear expropriation, the drafters might include an anti-expropriation clause in the proposal. Here too the combination of a partial veil of ignorance and varying time frames can affect drafting choices. Downstream constraints are probabilistic estimates of how much effective power parties and interest groups can exercise. As such they are inevitably subject to dispute. This is especially important when, as is sometimes the case, the parties and groups that will function as downstream constraints are the targets of important constitutional provisions. Proponents of such provisions may acknowledge the fact that they will face opposition, but will offer low-end estimates of the opponents’ effective power (sometimes arguing that the very fact that a proposal has moved forward will weaken the opposition).

11 As a matter of political theory this might have affected the resulting proposal’s legitimacy: Formally it resulted from a parliamentary initiative rather than an entirely popular one. 12 Here too the effect of non-domestic actors, especially investors, matters – though that effect must be mediated through the actions of domestic political actors, including the major media.

The politics of constitution making  149 As this discussion indicates, upstream and downstream constraints operate through political parties and interest groups. We can thus place Elster in dialogue with Ackerman, the former identifying how ordinary politics affects constitution-making processes, the latter seeking to minimise that effect (descriptively as well as normatively). 2.3

The Conditions of Constitution-making: Post-crisis, Post-conflict, Imposed, and Noncrisis

Some comparative studies of constitution-making identify the occasions when the process occurs. Four are especially prominent – and indeed taken together might come close to exhausting the occasions for constitution-making. (There are many subvarieties within these categories, creating the possibility for more finely grained categorisation.) 2.3.1 Post-crisis Systems of governance sometimes lose their claims to legitimacy. Defeat in war or a series of disastrous economic policies can discredit the entire constitutional order and not merely the government in place when the crisis arises. Ordinary citizens may conclude that the nation’s political elites as a whole no longer have a claim to make up the government because, for example, the major political parties endorsed the bad policies sometimes as members of a ‘grand coalition’ government and sometimes when a party formerly in opposition became the governing party and continued the policies it inherited. Post-crisis constitution-making has some general features: (a) Elster emphasises, contra Ackerman, that crisis does not provide a good setting for careful deliberation about what forms of institutional design will serve the nation’s long-term interest. Participants in the process might focus on scandalous events that produced the crisis without linking those events to deeper processes (an example perhaps of the availability heuristic). They will feel pressure to complete the task quickly, truncating deliberations when they come up with a seemingly ‘good enough’ solution to a difficult problem – and the solution might turn out to work badly. (b) The prior political elites and governing parties will have surrendered their claim to run the government, but not all of them will have surrendered the sources of their political power. A party centred on an individual personality might fade from the scene when its leader is discredited, though sometimes family members take up the banner; more ideologically grounded parties might soldier on. In central and eastern Europe after 1989, for example, many ordinary citizens continued to support the discredited Communist parties. In post-apartheid South Africa (perhaps an example of a post-conflict process more than a post-crisis one), whites continued to dominate the nation’s economy.13 Under these circumstances the constitution-makers will have to consider compromises with the forces associated with the prior regime, which might prove difficult for the most ardent supporters of the new constitutional project.

It is possible that the prior regime’s supporters will be so demoralised that they are unable to act as a credible political force post-crisis. That may have been one component of the failure of the opposition in Venezuela to participate in Chávez’s constitution-making process. 13

150  Research handbook on the politics of constitutional law (c) With existing political elites and parties largely discredited, who will engage in the constitution-making process? The crisis may have been catalysed by street demonstrations, but those who organise such demonstrations may not have much capacity to govern or bargain; indeed, with modern social media the organisers might be widely distributed and nearly anonymous. Typically the leaders of existing civil society organisations such as labour unions and bar associations will put themselves forward as representatives of ‘the street.’ They will claim, often accurately, that they do not propose to advance the merely sectoral interests with which they are associated (and which they do advance during periods of ordinary politics), but the positions they take in the general interest will undoubtedly be shaped by their organisational background. Here too Ackerman’s distinction comes under pressure. (d) The daily activities of government have to be carried on even as a post-crisis constitution-making process occurs: a state budget must be prepared, roads must be repaired, and the like. With the prior regime discredited, how is this to occur? One common solution is through the appointment of a caretaker government charged with maintaining the fundamentals of government without making any controversial policy choices. Another possibility looks to the constitution-making process itself. Consider a process that involves a constituent assembly. Some such assemblies, particularly in Latin America in the 2000s, have taken the tasks of government upon themselves. Sometimes they offer a theoretical justification, that the constituent assembly is the direct representative of the nation’s people. Necessity, though, might offer an alternative justification. A perspective influenced by Ackerman might find governance by a constituent assembly problematic. Delegates to the constituent assembly are chosen with an eye to their ability to craft a new constitution. The intellectual resources that ground that ability are typically different to some extent from those needed to run a government. We might expect, for example, that direct governance by a constituent assembly would be more ideological, less pragmatic, than governance by a body chosen simply to do the ordinary work of government. Though it presents the issue in reverse – constitution-making by the body charged with daily governance – the Israeli experience is instructive. Since its beginnings the Israeli parliament (the Knesset) has sat in two capacities. Most of the time it is an ordinary legislature, and for that reason political parties develop their platforms with ordinary governance in mind. The Knesset also sits as a constituent assembly when it chooses to do so. In that capacity it has adopted a series of Basic Laws that, taken together (and when completed), will be the nation’s constitution. On occasion specific Basic Laws have become the vehicle for what Ackerman might call ordinary politics masquerading as higher law. The quality of these Basic Laws is lower than it might have been because, to overstate the point, voters chose their representatives expecting them to do a good job of daily governance, not expecting them to build the constitution. 2.3.2 Post-conflict (or constitution-making for deeply divided societies) Widespread communal conflict, including violent rebellions and pervasive civil disorder, can end with a constitutional settlement.14 One side might defeat the other, or both sides might An important contribution is Lerner (2011).

14

The politics of constitution making  151 simply become exhausted. The ensuing constitution-making processes are often analogised to the negotiation of peace treaties, which must satisfy both sides (with the combatant forces taken as analogous to the armies of the people of the nations on whose behalf they fought). The politics associated with the processes differs depending upon how the conflict ends. Where one side faces complete defeat the winning side can dictate the terms of surrender. The winning side might want to address the conditions, including the constitutional conditions, that barred the conflict from being resolved in ordinary politics: badly designed federal arrangements, for example, or an overly centralised government. Here the winning side’s calculations are completely instrumental. The constitution-writers can try to come up with constitutional provisions that will prevent the conflict from reigniting.15 Transnational actors can sometimes constrain what those who defeat a rebellion can do. The victor might accept, sometimes reluctantly, that international human rights law limits what it can do. And sometimes there is a diaspora consisting disproportionately of the defeated side’s supporters; its members can influence the positions taken by the nations where they reside. Where both sides sue for peace each must concede something to the other in the new constitutional arrangements. Here, though, the Maoist saying, ‘Political power comes from the barrel of the gun,’ has real purchase. Roughly speaking, each side’s bargaining position will reflect its willingness and capacity to take up arms again. Interest-based bargaining of the sort typical in ordinary politics may pervade large swathes of the process.16 Yet, something remains of Ackerman’s distinction. Classical accounts of post-conflict constitution-making modelled on the outcome of the European religious wars of the sixteenth and seventeenth centuries provide some ground for believing that post-conflict constitution-makers will attempt to devise new arrangements that take the fundamental grounds for conflict off the table: in the European setting by barring the government from favouring one religious denomination, in other settings by guaranteeing major ethnic groups roles in ordinary policy-making. Long-term principled considerations might affect the resolution of the questions that were at the centre of the now-ended conflict. Drawing on the peace treaty analogy, we might find that some processes result in enduring peace rather than unstable armistices. That is an empirical question. Constitutional provisions can undoubtedly record a decision by the contending parties at the time of the constitution’s adoption to take some issues out of ordinary political contention. And we can undoubtedly observe cases where those issues remain off the table seemingly permanently. We might worry that, though the constitution might play some role in foreclosing the issue’s reemergence, a more important reason is on-going agreement to keep the issue out of politics. Determining whether the constitution will constrain when that agreement disappears is difficult. One argument that it will contends that the clarity of constitutional language makes it relatively easy to identify when one side has become disillusioned with the bargain, enabling the other side to marshal its forces to reestablish the bargain.17 Yet, constitutional provisions dealing with highly charged issues are

15 Decommissioning – taking weapons away from the losing side – is one common strategy, though implementing it post-conflict can be difficult even when the losing side has been shattered militarily. 16 There is a large literature on the substantive choices available in these cases, including consociationalism, asymmetric federalism, and constitution designs that seek to promote governance through institutions built around cross-ethnic relationships. 17 See Mittal & Weingast (2013); Alberts, Warshaw & Weingast (2012).

152  Research handbook on the politics of constitutional law often more ambiguous than clear, providing opportunities for the ‘breaching’ side to deny that it is rejecting rather than interpreting the terms of the deal. As with post-crisis processes, identifying bargaining partners might be difficult. Ordinarily we will find a government-in-place on one side, and sometimes there will be a clear organisational representative of the other side, as in many national liberation struggles. Often, though, we will find a congeries of armed groups fighting the government-in-place. Sometimes they do so under a loose umbrella of military command. Even when there is such an umbrella organisation, its military focus might make it unsuitable as a participant in the constitution-making process. Here the relative military power of the groups within the opposition will typically lead to selecting only some such groups as appropriate representatives in constitution-making. 2.3.3 Imposed constitutions The idea that constitutions can be imposed by colonial powers or the civil counterparts of military occupation forces has come under pressure in the past decade (Albert, Contiades & Fotiadou 2019). Colonial powers did create constitutions for their colonies. They reflected the interests of the colonial powers as they understood those interests. And sometimes a colonial power found it to be in its own interest to build some mechanisms of local representation into the colonial constitution, the most notable example being the British practice of indirect rule. Here the only feature of interest is that the colonial power’s actions, in its own interest, would reinforce or sometimes create existing power centres in the colony. Military occupation presents a variant of the imposed constitution. Colonial constitutions were not written with an eye to decolonisation. Constitutions written under military occupation, in contrast, do anticipate the end of the occupation. But, it is thought, the occupiers will leave behind a constitution that will suit the nations whose self-governance has been restored. The most important recent studies of constitutions that were characterised as imposed – most notably, Japan after World War II, but also Iraq in the 2000s and to some extent post-1945 Germany – have de-emphasised the role of the occupying powers and elevated the role of domestic political actors in these situations. For, after all, if the occupiers expect that the constitution they create will endure after they leave they must think that domestic political forces will find the arrangements satisfying. Sometimes the occupying forces will consult with local experts or, more significantly for present purposes, with local political actors who they expect to play an on-going role in post-occupation politics. Typically they will require that the constitution be taken on board locally, through some sort of ratification. That expectation then operates as a down-stream constraint on the constitution’s content. The occupying power’s position is a complex one. It seeks to identify local sources of political support for the constitutional project. Yet, in the terms used by scholars of international relations, the occupying power is playing a two-level game. It attempts to identify local political actors who will buy into the constitution, but in doing so it must also keep an eye on its own domestic audience. Some local politicians might provide important support for the occupiers’ constitutional project, but they might be so unsavoury in the occupiers’ home nation that their support isn’t worth it. Simplified examples include: the role of the Emperor in post-1945 Japan, which had to be carefully negotiated to allow the new government to draw support from those committed to a constitutional role for the Emperor without licensing what US politicians believed to be the kind of aggressive intervention in politics that had characterised pre-war emperors; the role of former members of the Baathist party in Iraq; and the relative role in

The politics of constitution making  153 post-war Germany of conservatives who went into exile during the Nazi era and conservatives who stayed and even provided some support for Nazi actions against the Soviet Union. 2.3.4 Constitutional replacement in ordinary times Constitutions become outdated. New social problems present themselves, new technologies arise that transform some aspects of governance, and more. Constitution-writers from the beginning have addressed the need for updating by allowing discrete amendments pursuant to some specified procedures. Ordinarily updating occurs through such amendments. Sometimes, though, a political consensus emerges that the accumulated amendments have given the nation a constitution that is too opaque. Opacity might matter when political leaders come to believe that a constitution is more than a mere frame of government but has some role in articulating to the world and to the nation’s citizens what sort of nation is constituted by the document. More mundanely, a politician might take constitutional updating as an important platform item and argue that discrete amendments, while important, ought to be embedded in a thoroughly modernised document. These occasions are rare enough that generalisation is particularly hazardous. It seems likely, though, that the process for comprehensive revision merely for the purpose of updating and eliminating opacity will be dominated by legal experts and technocrats.18 The kinds of political considerations and bargains that characterise other constitution-making processes are likely to be absent under these conditions.19 A final category of constitutional replacement in the absence of crisis or conflict is numerically important but analytically unimportant. Authoritarian rulers replace their authoritarian constitutions with some regularity, typically aiming to entrench themselves even more deeply into the nation’s governing processes. Authoritarian constitution-making is little different politically from authoritarian policy-making within an existing constitution. Sometimes, though, these efforts include provisions articulating the authoritarian leader’s vision of and for the nation, a thin version of the ideology the leader uses to justify rhetorically his or her policy choices.

3.

CONSTITUTION-MAKING SEEN AS A PROCESS IN TIME

Section 2 described some of the large-scale dimensions of the politics of constitution-making. This Section addresses politics on a more granular level, working its way through the time sequence of constitution-making.20 At every stage popular participation is mediated by existing political parties; participation has more effect where the parties are weak, less where they are strong (Hudson 2021). That seems to have been true, for example, of the comprehensive revision of Norway’s constitution in 2014. 19 Of course some existing constitutional provisions that are carried forward in a modernised one, particularly prior discrete amendments, will often memorialise the outcome of the political bargains struck when the amendments were added. 20 For other divisions of the time-line, see Widner (2008), 1522 (‘negotiation of ground rues; development of interim documents or immutable principles; preparation of an initial text; deliberation and adoption of a final draft; and, finally, ratification and promulgation.’); Banting & Simeon (1985), 18 (“idea-generating,” agreement reaching, and legitimation’). 18

154  Research handbook on the politics of constitutional law 3.1

The Proposal Stage

Ideas for constitutional reform beyond mere amendment constantly rattle around in nations with a working constitution in place but those ideas only infrequently become matters of genuine political contestation; Section 2 describes most of the conditions under which they do. Even when conditions for constitutional replacement are favourable, some norm entrepreneur must make the project prominent in public discourse. Some norm entrepreneurs do so out of a sense of public responsibility (or to make a name for themselves, seeking what eighteenth century thinkers might describe as ‘glory’ in a nonpejorative sense). Other norm entrepreneurs are more standard political actors. They argue that the existing constitution impedes the adoption of policies favouring constituents or interests they say they speak for and that a new constitution could either adopt those policies directly or more modestly open the way for their adoption through ordinary legislation. They may offer proposals that if adopted would increase the chance that they themselves or the political parties they lead would play a larger role in post-revision politics than they do under the existing constitution. At the proposal stage, though, these are only possibilities. The more obvious they are, the less purchase the proposals will have among the entrepreneur’s political opponents. As mere proposals, they are subject to negotiation and modification if the project moves forward. Proposals to make a new constitution can be vague or specific. Each has political advantages and disadvantages. Specificity helps focus the discussion but attracts criticism about details that might be relatively unimportant (‘The proposed constitutional court is too small to do the necessary work,’ or ‘The proposed Auditor General does not have adequate independence from the executive branch’). Vagueness keeps options for modification open but can be challenged as unrealistically optimistic about actually reducing the ideas to constitutional language. 3.2

Determining What Process to Use

With sufficient political momentum a constitution-making project moves toward drafting the new constitution. Sometimes a constitution emerges full-blown from its proposers’ hands and can be subject to adoption immediately. This is commonly the case for constitutional replacements by authoritarian leaders. In even slightly more democratic settings, though, some institution must do the work of drafting the new constitution.21 Three such institutions have been prominent. (a) The legislature in place. Drafting by the legislature has the advantage of eliminating start-up costs, and can draw upon expertise within the legislature about how governance actually works. A new constitution designed by the existing legislature might end up with cross-party support and certainly will have ‘buy in’ from major political actors, increasing the chance that it will be adopted. Legislative drafting has the disadvantage, already noted, that legislators also have to do the ordinary work of governance, which might adversely affect their ability to think disinterestedly enough about questions of long-term constitutional design. And, of course, sometimes

For overviews, see Elster (2013); Elster, Gargarella, Narsh & Rasch (2018); Negretto (2020).

21

The politics of constitution making  155 pressure to create a new constitution arises from dissatisfaction with the existing legislature’s (and executive’s) performance, which would reduce the political viability of the proposed new constitution. (b) A ‘roundtable’ negotiation. Roundtables are ad hoc processes of negotiation outside of existing institutional forms.22 They have been useful in some post-crisis and post-conflict settings. Unlike legislative drafting processes, roundtables can include at the table important extraparliamentary groups such as former guerilla fighters and representatives of civil society movements that organised protests against the government in place, as well as representatives of existing political parties. The primary challenge facing the roundtable process is selecting participants. Too many and the process can become unwieldy, too few and it can become ineffective. Precisely because roundtables are ad hoc institutions there are no rules available to identify who should be invited and who excluded. Decisions about expanding the group are made by an initial group of ‘obvious’ participants. Those participants ordinarily make political judgments: Excluding some group, they might conclude, will reduce the project’s prospects for success; including that group, or some other, will make it more difficult to come to agreement; and, importantly, some of the initial participants will seek to augment their power at the roundtable by including predictable allies and excluding predictable adversaries. (c)

A constituent assembly. By the end of the twentieth century constituent assemblies were clearly the preferred process of constitution-making, even in post-crisis and post-conflict settings, at least in theory (though in practice legislatures continued to engage in constitutional drafting at a reasonably high rate). Section 3.3 discusses the political aspects of selecting members of constituent assemblies. Here we consider only the assemblies’ powers.

The formal mandate of a constituent assembly is typically limited to drafting a new constitution and forwarding it for adoption.23 Persistent theoretical questions have arisen about whether such a limitation is binding on the constituent assembly itself.24 Those holding that it is not assert that the constituent assembly, no matter what its formal origins, is the representative of the people themselves and can exercise a constituent power that cannot be constrained by any legal rules other than, perhaps, binding norms of international law. Constituent assemblies have more than occasionally disregarded purported limits on their mandates. The US Constitutional Convention, whose mandate was to propose amendments to the existing constitution (the Articles of Confederation) proposed a complete constitutional replacement, for example. Some constituent assemblies have converted themselves into limited-purpose legislatures (purporting to enact laws addressing the general public in an interim way on some topics – amnesties, for example – that will be dealt with in the final constitution) or general-purpose ones. Political conditions determine whether constituent assemblies attempt to disregard their formal mandates and whether they succeed in doing so.

The most prominent advocate of roundtable drafting is Arato (2017). The formal mandate can take the form of legislation, a parliamentary resolution pursuant to provisions of the existing constitution, or an executive decree. 24 For recent contributions, see Roznai (2017); Colon-Rios (2020). 22 23

156  Research handbook on the politics of constitutional law But, as before, legality – the existence of theoretical claims that they can or cannot lawfully disregard their mandates – can function as a political resource for the contending sides. 3.3

The Drafting Body: Makeup, Processes, and Decisions

In general drafting bodies can be: (a) dominated by representatives whose positions reflect those of existing political parties and important interest groups; (b) composed of a mixture of such representatives and representatives of ‘ordinary’ citizens, though typically the latter are drawn from the middle or upper social classes; or (c) dominated by ordinary citizens, sometimes because the selection rules exclude those who are closely identified with existing political parties (though not those identified with interest groups).25 The first category maps well on to drafting by parliaments, the second on to roundtable processes. Constituent assemblies can fit into any of the categories. Almost by definition members of a constituent assembly must be elected, and the electoral rules can shape the assembly’s composition. The balance between politicians and ordinary citizens can affect both the quality of the assembly’s product and its political acceptability, and predictions about those effects will figure into the discussion and resolution of questions about the electoral rules. The case for a citizen-dominated constituent assembly is clearest in post-crisis settings where the existing political parties and elites have been largely discredited. In these cases a constitution proposed by a party-dominated process is likely to be rejected or if adopted be infected with the same lack of legitimacy that the prior constitution was (an example of a down-stream constraint). Something similar, though perhaps a bit weaker, can be said about post-conflict processes because the existing political parties are likely to bear some responsibility for the conflict and might structure the constitution to avoid suffering through lustration and human-rights prosecutions after its adoption. Excluding politicians, though, has costs as well. In post-conflict situations the existing parties do not simply go away, and even in post-crisis ones they may retain some support among a substantial number of people. Politicians excluded from a constituent assembly might find it difficult to make their on-going concerns clear to the drafters. Even if the drafters attempt to accommodate those concerns, the result will lack buy-in from the parties. Political parties (and interest groups) excluded from the drafting process might oppose ratification (again, a downstream constraint). Finally, politicians may simply know more than ordinary citizens about the way governing ‘technologies’ actually work in practice; they might be relatively more realistic about how new provisions and institutions will work than idealistic non-politicians. Drafting bodies can incorporate knowledge about how institutions work in a number of ways. Especially where politicians are included, some members may have such knowledge themselves. Members can sometimes identify particularly astute analysts of politics from within the body and give them prominent roles in drafting. That can be true as well of bodies that exclude politicians. The fact that members of constituent assemblies must be elected suggests that some talented ‘nonpoliticians’ will win seats, but the talents needed to win an election are not the same as those needed to understand how institutions work. And, of course, Of course determining the definitional boundaries of these categories is difficult and contention can arise both with respect to the general definition and with respect whether an individual member should be excluded because of an impermissible affiliation. 25

The politics of constitution making  157 drafting bodies can call upon external sources of expertise – domestic and, increasingly in the twentieth century and after, transnational NGOs and agents of foreign nations willing to offer drafting advice.26 Non-domestic institutions have their own agendas, not necessarily the same as those of a nation’s citizens. The advice they give will be shaped by those agendas, which in the case of government-affiliated advice-givers will ordinarily reflect the foreign government’s interests on the international scene. Some members of the drafting body will share those interests; in the 1950s, for example, British advice-givers seem to have shaped their advice with an eye to shoring up defences against Soviet influence, which was something favoured by some, and opposed by others, of those to whom the advice was being given.27 Non-domestic advice-giving, then, will have some domestic political valence. Transnational advice and commentary even on matters that are seemingly technical can have effects on the process, ordinarily making ratification more difficult. Such advice can come during the process of negotiating compromises about constitutional language. The advice-givers might correctly identify technical flaws in the language used to memorialise a compromise, or suggest what seem to them better ways of implementing the compromise. They will have less knowledge about the realities of politics ‘on the ground,’ though, and their suggestions, well-motivated and perhaps even correct technically, can disrupt agreements not yet fully consolidated. The situation is perhaps even worse when the advice is given about a fully drafted proposal. Then the advice will almost always take the form of criticisms, again sometimes technical and correct, about the completed document (sometimes sugar-coated with prefatory comments about the good things the proposal does). Such criticisms bolster the proposal’s opponents. Transnational norms have come to be important an in another way. Upstream and downstream constraints provide some guarantees that the drafting body will be broadly though sometimes imperfectly representative of major political forces withing the nation. Other forms of representation became significant in the late twentieth century. Since then the legitimacy of drafting bodies is reduced when the bodies are not demographically representative, with the role of women and indigenous peoples becoming especially important. The evidence about the effects of demographic representativeness is thin so far, and tends weakly to suggest that bodies that are gender-balanced (or nearly so) do not produce constitutions that are significantly different from constitutions produced by less representative bodies, both with respect to matters other than women’s rights and, perhaps surprisingly, with respect to women’s rights themselves. As a normative matter, then, increasing the demographic representativeness of drafting bodies may enhance descriptive but not substantive representation.28

For a collection of essays on transnational influences on constitution-making, see Shaffer et al. eds. (2019). 27 For a discussion of this point in connection with Ivor Jennings’s role in drafting constitutions for some South Asian nations, see Malagodi (2015). There is some reason to believe that advice emanating from the United States as post-1989 constitutions were drafted in central and eastern Europe reflected an interest in reducing the potential influence of Germany in the post-Soviet regimes. Similarly with advice from the ‘global North’ in the twenty-first century, where concern about Chinese influence was important. 28 For the distinction, see the classic Pitkin (1972). 26

158  Research handbook on the politics of constitutional law 3.4

Drafting the Constitution

Many provisions included in a proposed new constitution are largely uncontentious. Constitutions are notably ‘sticky,’ with new constitutions carrying over large portions of the constitutions they replace (Varol 2016). By the late twentieth century a large body of ‘off the shelf’ provisions, particularly dealing with human rights, were available to direct transposition into new constitutions. Often the ‘cut and paste’ operation is straightforward: A drafting committee or an enterprising individual will compile a list of existing constitutional provisions and select those that seem appropriate. The drafters may tinker with the off-the-shelf provisions to adapt them to distinctive local circumstances,29 and some of these adaptations can become politically contentious. Often, though, the imported provisions are abstract enough to mask political disagreements about their meanings in specific real-world controversies that are likely to arise. How innovations occur has not been carefully studied. Individuals seeking to secure their place in history (and to shape the future of their nations) and extra-party movements seem to play significant roles, but there is little systematic analysis of the issue of innovation’s origins. Current international norms strongly favour a highly transparent drafting process, with bargaining over fundamental issues occurring in open sessions where the issues are laid out for public consideration before the drafting body votes. Details might be worked out by technical experts operating behind the scenes, but the core issues should be discussed and resolved in the open. Elster, in contrast, emphasises the costs of transparency and the values of secrecy (Elster 1995). Actors ‘deliberating’ in the open can engage in posturing, using inflated rhetorical appeals to the public in ways that lack the nuance necessary to resolve difficult issues. Acceptable bargains might be difficult to defend in the open precisely because, as bargains, they compromise normative principles in the service of the larger project of adopting a new constitution that is better than the existing one on balance despite its unprincipled features.30 Complete transparency is almost certainly impossible to attain. Drafters will meet in the hallways or have private dinners at which they discuss and sometimes come up with solutions to problems that have surfaced in the open discussions. Secrecy’s main disadvantage is the possibility of corruption, or perhaps more important the public perception of the possibility of corruption. Also affecting drafting is public participation through comments, formally submitted or disseminated through the media, on evolving drafts. Here too transparency matters: Comments on widely distributed drafts will be easier, and potentially more effective, than comments on a fully formed constitution. The twenty-first century has seen innovative efforts to secure public comments, through the distribution of easy-to-read pamphlets describing the drafts and soliciting comments via the internet. The latter efforts seem likely to expand. Yet, as Alexander Hudson emphasises, these comments are likely to be filtered through political parties and interest groups acting both outside the constituent assembly to generate comments

See Frankenberg (2010). Elster acknowledges that clever politicians can come up with first-order principled defences of these bargains, though doing so might take more time than is available in the roundtable or constituent assembly. The classic Federalist Papers offer many examples of first-order defences being provided for unprincipled compromises. 29 30

The politics of constitution making  159 and inside it to take some comments on board and ignore others (Hudson 2021). Direct public participation in drafting, though, seems to have little effect (or sometimes perverse effects).31 An important drafting technique responsive to political contention within the drafting body is deferral of the issue to future resolution through ordinary legislation (or, sometimes, through organic laws requiring more than ordinary majority support).32 The drafters know that some issue must – or should – be resolved at the constitutional level but cannot come to agreement on the issue or run out of time for dealing with it. They flag the issue in the proposed constitution for later decision. Saying that an issue shall be decided (later) ‘by law’ might be interpreted to impose a duty on the legislature to enact such a law within a relatively short period of time, a duty that might be judicially enforceable. Yet, everything after the constitution is adopted, from the drafters’ point of view, no more than probabilistically likely. That is a good thing for getting the project through to the end, but less obviously good for actually getting the issue, again one that is assumed to be important, actually resolved. Similar political considerations can influence the decision to make some provisions judicially enforceable and others enforceable only through politics. The most prominent examples of the relevant technique are provisions identifying ‘directive principles of public policy,’ often dealing with social and economic rights, that are expressly not made judicially enforceable. Identifying a right or other matter in a directive principle can be a deal struck between those who think the right is fundamentally important and those who think that implementing the right will be extraordinarily difficult or otherwise imprudent (Khaitan 2018). 3.5

Submitting the Proposal for Approval

A proposal approved by the drafting body becomes available for adoption. Historically, monarchs could simply promulgate a constitution. With the rise of democracy came a near-universal requirement that the nation’s people as a whole endorse the proposal. That requirement can in principle be satisfied by parliamentary ratification. In such cases politicians directly control the approval process, and ordinary political calculations can determine the outcome. This is particularly problematic in post-crisis settings, where parliamentary approval sometimes means approval by a body dominated by the political parties whose failures created the crisis. In Iceland, for example, after an innovative process that excluded politicians, a referendum endorsed the proposed constitution but the parliament, whose approval was required by the rules in place, rejected the referendum’s outcome. The political parties who blocked the adoption concluded that they would be better off risking political losses from the refusal than trying to win office under the new constitution. (Their calculations were affected by the fact that the financial-cum-political crisis that placed constitutional reform on the political agenda had mostly passed by the time the drafting process was concluded.) As the example of Iceland shows, modern practice and transnational norms favour direct citizen involvement in ratification through a referendum. For a combination of technical and political reasons the usual referendum offers voters an all-or-nothing choice: either approve the entire proposal or reject it and retain the status quo. Technically it can be difficult to separate out parts of a proposal for separate approval: Although some components of a constitutional For a summary of the evidence, see Horowitz (2021), ch. 7. See Dixon & Ginsburg (2017); Lerner (2011) (describing and defending ‘incrementalism’ in dealing with core issues of national identity in deeply divided societies). 31 32

160  Research handbook on the politics of constitutional law proposal can be detached from the proposal as a whole, many components fit together into a reasonably integrated set, such that approving some and disapproving others would produce a constitution impossible to implement. Politically an all-or-nothing choice tends to favour the side supporting the new constitution. Substantial minorities might oppose various specific proposals but those who oppose only one might conclude that overall the proposal is better than the status quo and will vote for the proposal; those who oppose another might make the same judgement and vote for the proposal as well. This might account in part for the extremely high rate of success in constitutional referendums, reportedly 94 per cent (Hudson 2021, 19). Abstention from voting in the referendum is an alternative to voting yes or no. As a matter of formal law a proposal that receives a narrow majority in a low-turnout referendum can move forward to the next step, whether it be parliamentary consideration or formal promulgation. In practice that has proven unlikely. The low turnout is often taken as a signal that the nation’s people do not in fact approve the proposal, or at least do not approve it strongly enough. If widespread enough, abstention functions as a vote against the proposal. And sometimes politicians will find it more congenial to advocate abstention instead of rejection, perhaps because advocacy of abstention can be more easily combined with an acknowledgement that some constitutional reforms are still needed. 3.6.

The Afterlife of Processes of Constitution-making

One would think that constitution-making ends with the new constitution’s promulgation or rejection. Sometimes, though, the process continues, in some sense. Supporters of rejected proposals can of course go back to the drawing board by continuing to advocate for comprehensive constitutional reform through a new process. Constitutional reform has remained an active topic of political concern in Iceland, for example, where about one-sixth of the nation’s registered voters signed a petition asking the legislature to ratify the proposed constitution, and the government has considered a package of discrete amendments responding to what it regards as the most important concerns that surfaced during the constitution-drafting process.33 More interesting, perhaps, can be the position of those who opposed the new constitution but lost out. As Jeffrey Tulis and Nicole Mellow have emphasised in discussing the United States, losers leave legacies (Tulis & Mellow 2018). Across large areas they can maintain that their policies were rejected as the basis for constitutional entrenchment but that they remain available for adoption through ordinary legislation – and should be adopted because they are good policies. And they can argue that the values underlying their positions on issues of constitutional design were not completely rejected but accommodated through important compromises. That leaves the way open for arguments about how the new constitution’s provisions should be interpreted, in particular for arguments that the losers’ values should be given substantial weight in resolving specific interpretive controversies.

I thank Kári Hólmar Ragnarsson for this information.

33

The politics of constitution making  161

4. CONCLUSION Donald Horowitz observes that ‘skill’ and ‘leadership’ are important features of successful constitution-making processes, and that ‘[r]andom forces – the interests of particular politicians or social segments, unusually persuasive individuals, an authoritarian ruler, colonial tradition, successful insurgents, or foreign advisors – may manage to influence the choice’ (Horowitz 2021, 106, 243, 208–9). That observation – clearly correct but not intuitively obvious – means that systematic analysis of the politics of constitution making will always revert to details of the specifics of each process, a phenomenon noted in the opening sentence of this chapter. The specific form that the politics of constitution-making takes is affected by the fact that the object of political contention is a constitution rather than, for example, a proposal to regulate the nation’s energy resources. Still, the descriptions of the politics of energy regulation will ordinarily include essentially everything that will be included in the description of the politics of constitution-making – and even more so for descriptions of the politics associated with large-scale ordinary legislation such as shapes a nation’s social-welfare system or its climate-change policies.34 In short, the politics of constitution-making is continuous with ordinary politics.

REFERENCES Ackerman, Bruce. The Future of Liberal Revolution (Yale University Press, 1992). Ackerman, Bruce. We the People: Foundations (Harvard University Press, 1991). Albert, Richard & Joel Colón-Rios (eds). Quasi-Constitutionality and Constitutional Statutes: Forms, Functions, Applications (Routledge, 2019). Albert, Richard, Xenophon Contiades & Alkemene Fotiadou (eds). The Law and Legitimacy of Imposed Constitutions (Routledge, 2019). Albert, Richard. Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019). Alberts, Susan, Chris Warshaw & Barry R. Weingast, ‘Power and Constitution Design in Self-Enforcing Democracy,’ in Tom Ginsburg (ed) Comparative Constitutional Design (Cambridge University Press, 2012). Arato, Andrew. The Adventures of the Constituent Power: Beyond Revolutions? (Cambridge University Press, 2017). Banting, Keith G. & Richard Simeon, ‘Introduction,’ in Keith G. Banting & Richard Simeon (eds) The Politics of Constitutional Change in Industrial Nations: Redesigning the State (Macmillan, 1985). Choudhry, Sujit & Tom Ginsburg. Constitution Making: Elgar Research Reviews in Law (Edward Elgar, 2016). Colley, Linda. The Gun, the Ship, and the Pen: Warfare, Constitutions and the Making of the Modern World (Liveright, 2021). Colon-Rios, Joel. Constituent Power and the Law (Oxford University Press, 2020). Dixon, Rosalind & Tom Ginsburg. (2017). ‘Deciding Not to Decide: Deferral in Constitutional Design,’ International Journal of Constitutional Law 15: 988–1012. Elster, Jon, Roberto Gargarella, Vatsal Narsh & Bjørn Erik Rasch (eds) Constituent Assemblies (Cambridge University Press, 2018).

34 That is one reason that statutes dealing with the social welfare state and climate change offer the best examples of quasi-constitutional statutes.

162  Research handbook on the politics of constitutional law Elster, Jon. (1995). ‘Forces and Mechanisms in the Constitution-Making Process,’ Duke Law Journal 45: 364–96. Elster, Jon. ‘The Optimal Design of Constituent Assemblies,’ in Jon Elster, Securities Against Misrule: Juries, Assemblies, Elections (Cambridge University Press, 2013). Elster, Jon. Securities Against Misrule: Juries, Assemblies, Elections (Cambridge University Press, 2013). Elster, Jon. Ulysses and the Sirens: Studies in Rationality and Irrationality (Cambridge University Press, 1984). Eskridge, William & John Ferejohn. A Republic of Statutes: The New American Constitution (Yale University Press, 2010). Frankenberg, Günter. (2010). ‘Constitutional Transfer: The IKEA Theory Revisited,’ International Journal of Constitutional Law 8: 563–79. Ginsburg, Tom (ed). Comparative Constitutional Design (Cambridge University Press, 2012). Holmes, Stephen. Passions and Constraint: On the Theory of Liberal Democracy (University of Chicago Press, 1995). Ginsburg, Tom & Sumit Bisarya. Constitutional Makers on Constitution Making: New Cases (Cambridge University Press, 2022). Horowitz, Donald. Constitutional Processes and Democratic Commitment (Yale University Press, 2021). Hudson, Alexander. The Veil of Participation: Citizens and Political Parties in Constitution-Making Processes (Cambridge University Press, 2021). Khaitan, Tarunabh. (2018). ‘Directive Principles and The Expressive Accommodation of Ideological Dissenters,’ International Journal of Constitutional Law 16: 389–420. Landau, David & Hannah Lerner. Comparative Constitution Making (Edward Elgar, 2019). Lerner, Hannah. Making Constitutions in Deeply Divided Societies (Cambridge University Press, 2011). Malagodi, Mara. (2015). ‘Ivor Jennings’s Constitutional Legacy Beyond the Occidental-Oriental Divide,’ Journal of Law & Society 42: 102–26. Mittal, Sonia & Barry R. Weingast. (2013). ‘Self-Enforcing Constitutions: With an Application to Democratic Stability in American’s First Century,’ Journal of Law, Economics, and Organization 29: 278–302. Negretto, Gabriel (ed). Redrafting Constitutions in Democratic Regimes (Cambridge University Press, 2020). North, Douglass C. & Barry R. Weingast. (1989) ‘Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England,’ Journal of Economic History 49: 803–32. Pitkin, Hannah Fenichel. The Concept of Representation (University of California Press, 1972). Roznai, Yaniv. Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford University Press, 2017). Shaffer, Gregory, Tom Ginsburg & Terence C. Halliday (eds). Constitution-Making and Transnational Legal Order (Cambridge University Press, 2019). Tulis, Jeffrey & Nicole Mellow. Legacies of Losing in American Politics (University of Chicago Press, 2018). Varol, Ozan O. (2016). ‘Constitutional Stickiness,’ University of California Davis Law Review 49: 899–961. Waldron, Jeremy. The Dignity of Legislation (Cambridge University Press, 1999). Widner, Jennifer. (2008). ‘Constitution Writing in Post-Conflict Settings: An Overview,’ William & Mary Law Review 49: 1513–41.

10. The constitutional politics of emergency powers Victor V. Ramraj1

1. INTRODUCTION There is no shortage of real-life situations that come to mind when we imagine the kinds of events that prompt a government to invoke emergency powers. This chapter was written in the midst of the COVID-19 pandemic which, despite vaccination progress mostly in richer countries, showed little sign of abating globally almost two years in. Many governments have declared a state of emergency in response.2 Before the pandemic, and somewhat abated by it, mass political demonstrations – such as those in Hong Kong and Bangkok, but also in the United States, Canada, elsewhere – provoked a range of state responses, including, in the case of Hong Kong, the imposition by the central government in Beijing of a National Security Law,3 with immense implications for Hong Kong’s place within China and the future of the ‘One Country, Two Systems’ formula.4 Even two decades later, the 9/11 attacks on New York City and Arlington, Virginia still cast a long shadow over the theory, practice, and political rhetoric around the invocation and use of emergency powers – and over liberal ideals of constitutionalism, including the aspiration of limited, accountable government checked by an independent judiciary. And the increasing frequency of natural disasters – many linked to climate change5 – which are expected to grow in frequency and intensity, are forcing governments to reconsider the short- and long-term implications of these challenges and the legal framework needed to address them. In all of these situations and many others in which emergency powers are debated or invoked, the idea that constitutional ‘texts and doctrines are completely and complexly intertwined with the political systems within which constitutional law is found’6 is fully borne out. The goal of this chapter is not to describe emergency power regimes in detail or even to provide a typology of emergency powers, although a brief, high-level survey of the field is necessary. Rather the chapter seeks to connect the legal and constitutional provisions governing emergency powers to constitutional politics, broadly understood, and the social context in which those powers, and the political contests over them, are situated. In so doing, it highlights 1 I would like to thank the editors and Marta Kleiman for their comments on an earlier version of this chapter. 2 As of 4 September 2021, one organisation, the International Center for Not-for-Profit Law (ICNL), had catalogued 109 ‘countries with emergency declarations’: see https://​www​.icnl​.org/​covid19tracker/​ ?issue​=​5. 3 The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, G.N. (E.) 72 of 2020. 4 Lo (2021). 5 IPCC, 2021. 6 See Introduction to the Research Handbook on the Politics of Constitutional Law in this volume.

163

164  Research handbook on the politics of constitutional law two points in particular about emergency powers and constitutional politics. First, it highlights the complicated relationship between emergency powers and fundamental constitutional disputes – disputes that the constitution might seek to place beyond the realm of everyday politics, but which continue to haunt them. Second, the chapter highlights the importance of the time-frame in which the events that prompt a formal emergency are understood – both at the time the powers are invoked and in anticipation of their use. When the time frame of emergency powers is widened, the range of legal options and strategies for addressing underlying problems also becomes much broader, laying bare the inseparability of emergency powers and politics, constitutional or otherwise.

2.

EMERGENCY POWERS

Framed in the most general and ideal terms, formal emergency powers have two defining functions. First, they authorise or empower governments to respond, on a temporary basis, to conditions defined, declared, or understood by officials as emergencies, in ways that they would not ordinarily be legally permitted to do so. From this brief definition of the empowering function of emergency powers, several critical assumptions and questions can be inferred, all of which are critical to a formal constitutional account of emergency powers. For example, this definition assumes that governmental responses to emergencies are ordinarily constrained by law, so that governments require constitutional authority to act beyond the scope of their usual powers. As such, this definition takes as its starting point a liberal-democratic conception of constitutional law and its rule-of-law norms, drawing on a particular7 understanding of the state. It also contains a critical temporal component, conceiving emergency powers as time-limited, with the implication that government powers will eventually revert to a pre-emergency, pre-crisis norm. In practice, this temporal element might be operationalised through legislative checks on the powers conferred, including the use of ‘sunset clauses’ or constitutional time limits, increasingly onerous requirements for renewal, and other procedural devices aimed at gradually limiting the exercise of those powers and eventually restoring the pre-crisis legal order. The definition of emergency powers also captures the contentious and distinct question of the definition of an emergency itself and thus the triggering conditions for a heightened governmental response. It is contentious whether what constitutes an emergency can be specified in advance without limiting the government’s ability to respond effectively and whether the emergency powers regime should focus less on definitions and more on the procedural questions or who defines, declares, or designates a situation as an emergency and with what kind of institutional checks and safeguards or ratification requirements. A second key function of emergency powers, also implicit in the empowering function just described, is its constraining function. This function too draws on a liberal-democratic understanding of constitutional law, and the idea drawn from that political tradition of limited government. On this understanding, not only is the exercise of governmental power ordinarily constrained by the constitution, the legitimacy of which is drawn ultimately from the consent of the government, but in times of crisis – when emergency powers are (perhaps, necessarily) invoked – there is a heightened danger of abuse of those powers by the authorities. Emergency

7



Glenn (2013).

The constitutional politics of emergency powers  165 powers are therefore a necessarily evil, and any conferral of extraordinary powers in times of crisis must also be proportionate, scrutinised, and limited in their implementation. We have already seen some of the ways these goals might be achieved, in formal terms, in qualified way in which governments are empowered to exercise emergency powers – that is, through temporal limitations, limited definitions, institutional checks on who can invoke them or who needs to ratify their invocation or implementation. Constitutional law, other human rights instruments, and other emergency powers legislation might treat some rights as non-derogable even in times of crisis,8 creating substantive limits on emergency powers.9 How these two functions – empowering and constraining governments in times of crisis – are framed, and the extent to which they are specified, varies greatly across constitutions. Scholars of emergency powers have tried to identify patterns of legal response and formula typologies of emergency powers.10 At the highest level of generality, we might find efforts to respond to emergencies through ‘regular government’ or in what has been called a ‘business-as-usual’ way. On this model, a constitution might guarantee a range of rights and freedoms and subject them to general or specific limitations on those right, and these provisions would apply in times of crises as they would in ordinary times. Constitutions that follow this pattern might therefore seek to structure a government’s response to a crisis according to the general norms and principles governing limits on constitutional rights. It would fall on the judiciary, primarily, to determine whether limits imposed by the government in response to a crisis were consistent with the constitutional principles governing limitations on rights.11 Other constitutions, following what has been called a ‘neo-Roman’ model,12 might expressly authorise the government to declare a constitutional state of emergency, under specified circumstances, which would enable the government to respond to the crisis in ways that it normally could not (allowing the executive to legislate directly; allowing, for example, the central government to assume jurisdiction over matters not normally within its purview; placing limits on rights and freedoms), subject to non-derogation from core rights. Other scholars, notably Oren Gross, have defended an ‘extra-legal measures model,’ allowing governments, in extreme cases, to

8 See Article 4(2) of the International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 9 For example, Timor Leste’s constitution permits the government to declare a state of siege or state of emergency under concern conditions, but that a state of siege shall in no case ‘affect the right to life, physical integrity, citizenship, non-retroactivity of the criminal law, defence in a criminal case and freedom of conscience and religion, the right not to be subjected to torture, slavery or servitude, the right not to be subjected to cruel, inhuman or degrading treatment or punishment, and the guarantee of non-discrimination’ (Constitution of the Democratic Republic of Timor-Leste, Article 25(5)). Likewise, Canada’s Emergencies Act, while empowering the federal government to national and international emergencies, specifies that nothing in the act permits the government to ‘make orders or regulations ... (b) providing for the detention, imprisonment or internment of Canadian citizens or permanent residents ... on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability’ (R.S.C., 1985, c. 22 (4th Supp.), s. 4(b)). 10 Ferejohn & Pasquino (2004); Ramraj, ed. (2008). 11 See e.g. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, s. 91(24). 12 Constitutions following this model draw inspiration from the ‘the constitutional practice during the Roman Republic of appointing a dictator with virtually unlimited powers, for a fixed, six-month tenure, with the mandate of dealing swiftly with the emergency and restoring the normal constitutional order’: see Ramraj (2011). See also Rossiter (2002).

166  Research handbook on the politics of constitutional law act without express legal authority and then seek retrospective judicial or political ratification – or condemnation – of their actions.13 There are, of course, other ways in which these general patterns of legal response could be specified or more fine-grained categories could be identified. Indeed, many of these categories assume a particular understanding of constitutionalism, often with Western-style liberal democracies in mind. But the range of constitutions that include emergency powers frameworks or one kind or another vary considerably, as do the political systems they purport to govern – from multi-party democracies to single-party or single-party dominant systems to communist states and a range of different kinds of monarchies. The patterns of legal response might also vary according to a vast range of other factors, including structural factors (e.g., whether the constitution is written or unwritten constitutions; whether the political system is presidential or parliamentary, whether the legislative chamber is unicameral or bicameral and elected or fully or partially appointed; and whether the state is federal or unitary and whether some regions might be semi-autonomous, and how powers are distributed among different levels or forms of government), contextual, socio-legal factors (e.g., the extent to which formal institutions influence political behaviour,14 the role of other norms, such as religious norms, in constraining political actors and influencing social behaviour more generally15), and geopolitical and economic considerations (e.g., the relative political autonomy of the state to develop and implement its own policies in relation to a particular crisis; the economic consequences of not responding in a particular way to a crisis). Another important framing issue is the relationship between emergency powers specified in or permitted by a constitution and ordinary legislation to address emergency situations or prevent them from arising. For example, Canada’s Emergencies Act16 enables the federal government to respond to a ‘national emergency’ which it defines as ‘an urgent and critical situation of a temporary nature that (a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or (b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada and that cannot be effectively dealt with under any other law of Canada’ (section 3). The legislation defines four types of emergency: public welfare emergencies, public order emergencies, international emergencies, and war emergencies. A public welfare emergency is defined in section 5 to include ‘an emergency that is caused by a real or imminent … (b) disease in human beings, animals or plants … and that results or may result in a danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources, so serious as to be a national emergency.’ Notably, 18 months into the COVID-19 pandemic, this emergency legislation had still not been invoked. Apart from emergency legislation of this sort, that is framed expressly in terms of an emergency, many other laws might address emergency situations directly or indirectly, including legislation governing security screening at airports, authorising resources to be directed in a particular way (e.g., assistance to healthcare workers or victims of natural disasters) or

Gross (2003). Mattei (1997). 15 Consider, for instance, the role of religious organisations in responding to the COVID-19 pandemic: see Benjamin Schonthal & & Jayatilake (2020), in Ramraj, ed. (2020). 16 S.C. 1988, c. 29. 13 14

The constitutional politics of emergency powers  167 imposing a variety of public health measures (e.g., reporting requirements, quarantine, travel restrictions), or laws allowing the destruction of private property to prevent the spread of a fire. Legislation of this sort might not always be framed in terms as ‘emergency powers,’ yet the goal of such measures may well be to prevent an emergency from arising or mitigate its consequences. What counts as emergency legislation and its relationship to constitutional emergency powers signals important conceptual issues concerning the timeframe of emergencies, questions that we will return to later in this chapter.

3.

CONSTITUTIONAL POLITICS

In theory, a constitutional emergency powers regime empowers and constrains the government in times of crisis. It creates the legal means of responding to exceptional threats, while limiting the scope for abuse. Some theories, such as Gross’s extra-legal measures model, acknowledge that officials might at times act outside the law, but even this model relies on a formal institutional mechanism, albeit a political one – ex post ratification – to confer legitimacy on an ostensibly illegal act. Yet the line between formal legality and politics remains mostly intact; constitutional law is one thing; politics is another and is in many ways the object of the emergency power regime’s constraints. The idea of ‘constitutional politics’ challenges the presumptive separation between constitutional law and politics and signals a variety of ways in which politics can enter the domain of constitutional law. As an analytic approach to constitutional law, it questions the assumption that law can be fully insulated or understood apart from politics, an assumption that is, in many ways, central to the rule of law ideal. For liberal constitutional theorists, a key aspiration of constitutional law is to impose normative and procedural constraints on what governments can do, realised through judicial constitutional review and the separation of powers between the legislative and executive branches of government and the courts. For those who champion liberal constitutionalism, constitutional law can be conceived as a way of settling political disputes, with the constitution providing a framework of rules and principles through which political disagreements can be resolved on an ongoing basis. Constitutional politics questions the liberal constitutional assumption that constitutional law can be isolated from the messy world of politics, political struggles, and power dynamics, conceiving of constitutional law instead as, at best, a ‘semi-autonomous field.’17 Apart from this core idea of ‘constitutional politics,’ the term can also be used to refer to a range of other claims about how politics enters into the realm of constitutional law. For example, constitutional politics could be understood as proto-constitutional politics, involving political struggles or debates over the framing or formal amendment of the constitution; on this view, constitutional politics might accept the normative goal of constraint; the debate is over the terms of that constraint at the point of constitution-making or formal constitutional amendment. But debates over framework principles are rarely confined to the process of constitution-making; even after a constitution or constitutional amendment has been formalised, debates about fundamental principles might spill over into debates over interpretation. How important, for example, are the intentions of the framers of the constitution? Who might

17

See Introduction to the Research Handbook on the Politics of Constitutional Law in this volume.

168  Research handbook on the politics of constitutional law have been excluded from those framing debates and how can their voices and perspectives be subsequently taken into consideration? How should changes in social values, political economy, demographics, geopolitics, technology, or the environment affect interpretation? How slowly or quickly should contextual changes be taken into account by constitutional actors? These questions and others like them point to a variety of ways in which constitutional law remains unsettled well after debates about framing principles and text are apparently resolved at the point of founding or amendment. Similar questions might be raised about the constitutional institutions and actors responsible for interpreting and applying the constitution. How, for instance, are judges selected? What are the terms of their appointment? On what grounds might they be disciplined or removed, and by what process? What kinds of cases can they hear or do they agree to hear? How much scope do they have for leaving controversial questions open – or deferring to other political actors or branches of government? And how do the political values or allegiances of judges and other key constitutional actors affect their decisions? These questions too signal a range of ways in which, beyond the moment of constitutional founding or formal amendment, contentious issues that seem to be settled remain open and contested – and thus subject to the vagaries of power and politics. Constitutional politics might also signify or allude to the location of constitutional law and practice outside formal institutions such as the courts, in the norms and practices of community organisations, various forms of media, the wider society. The notion that constitutional law extends beyond the courts has several variations. In the American constitutional law context, for example, Bruce Ackerman highlighted the importance of a post-New Deal constitutional vision, involving a ‘complex constitutional dialogue between the voters at large and institutions of the national government.’18 For his part, Mark Tushnet has argued that constitutional law belongs not exclusively to the courts, but to the members of the society collectively, who ‘act together, in political dialogue with each other – whether … in the streets, in voting booths, or in legislatures as representatives of others.’19 The idea of a constitution located, at least in part, outside the formal institutions of the state has resonance in many parts of the world. For instance, in the Cambodian context, Benjamin Lawrence has shown, through empirical research, how constitutional practices have been articulated and contested by a range of actors and the importance of ‘taking seriously the meanings that are assigned to the Constitution in everyday political life.’20 Many scholars who study constitutional politics highlight the critical importance of social and political values to constitutional law; these values are the ultimate guarantors of the constitutional order. This claim about social and political values can be understood in two ways. First, societal – and opposed to legal – constitutionalism might be seen as an alternative location for constitutional norms. Societal constitutionalism assigns ‘to various social sectors the capacity of generating autonomous constitutional norms,’ fostering an ‘understanding of constitutions as a product of civil society and not solely as a matter of institutionalized politics.’21 Second, societal constitutional might be seen as an essential foundation of a formal constitutional order and a basis for its legitimacy. On this view, the formal constitutional order cannot stray far from the societal constitution; an imposed constitution will not secure the 20 21 18 19

Ackerman (1989), 459. Tushnet (1999), 181. Lawrence (2020), 231. Teubner & Beckers (2013), 540.

The constitutional politics of emergency powers  169 respect and adherence of members of the society if it fails to achieve a threshold level of societal acceptance. What the level of acceptance is might vary according to the context and the extent and form of opposition – whether it takes the form of violent resistance and insurgency, public or private criticism, or grudging acquiescence. In this respect, Judge Learned Hand’s wartime observation is apposite: I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.22

On this view, the goal of defenders of formal constitutional institutions and values, then, is not simply constitution-drafting and institution-building, but finding ways of aligning constitutional principles with societal values – an alignment that will be of critical importance when a formal emergency powers are invoked.

4.

CONSTITUTIONAL POLITICS AND EMERGENCY POWERS

Constitutional politics can correspondingly enter the domain of emergency powers in several ways. First, constitutional politics might be brought to bear on the political foundations of the constitutional order. Although the founding arrangements of a constitutional order and its formal institutions might remain contentious, the line between disputes within that order and disputes that undermine that order – and thus cross into sedition or insurrection – might be difficult to determine and thus become politically contestable in themselves. As examples in the early 2020s, we might consider the events of 6 January 2021 in Washington DC, when a wave of protesters breached the US Capitol, resulting in loss of life and property damage, as well as disruption of the formal political process, just as Congress was confirming the results of the November 2020 election.23 The events of that day remain legally and politically contentious, with some viewing the election, the attack on the Capitol, and its aftermath as ‘a pivotal moment in American history’ and a crisis for American democracy.24 In Hong Kong, the imposition by China of a National Security Law in June 2020, following months of protests by pro-democracy groups is seen by many commentators as inconsistent with its Basic Law (Hong Kong’s mini-constitution) and a challenge to the ‘One Country, Two Systems’ formula that was supposed to guarantee Hong Kong a measure of legal autonomy from China for 50 years from 1997.25 For its part, China justified the imposition of the National Security Law on the basis of Hong Kong’s unwillingness to enact its own national security laws under Article 23 of the Basic Law and the growing political unrest in Hong Kong, which it viewed as a threat to its authority, suggesting a tension between two fundamentally different ways of understanding Hong Kong’s legal and political relationship with China.26 In other contexts, contentious foun Dillard, ed. (1959), 144. Tan, et al. (2021). 24 Howell & Moe (2021), 127. 25 Lo (2021). 26 For an anthology examining the legal and political developments and controversies preceding the National Security Law, see Chan & & de Londras, eds (2020). 22 23

170  Research handbook on the politics of constitutional law dational issues – such as Quebec’s status within Canada, which, in the midst of a political crisis in October 1970, triggered the imposition of the War Measures Act27 – might be addressed in other ways. So in 2000, in response to a decision of the Supreme Court of Canada on the issue, the Parliament of Canada enacted what is known as The Clarity Act,28 setting out the process by which a province might hold a public referendum to secede from Canada, including criteria for determining ‘whether there has been a clear expression of a will by a clear majority of the population of a province that the province cease to be part of Canada.’29 However states might respond, the invocation of emergency powers – or a threat to use them – is often closely linked to latent, unresolved political disputes over constitutional foundations. These examples raise important questions about the line between legitimate dissent and existential threats to the political and constitutional order, and the extent to which governments should tolerate political opposition to the constitutional order itself and the forms that such opposition might take. Such questions themselves raise profound questions about constitutional foundations, and invite a range of answers depending on whether the constitutional orders lean in a more liberal-democratic or authoritarian direction, questions that themselves turn on the legitimacy of the constitutional order in question. For example, the African National Congress’ sometimes violent opposition to the South African government during the apartheid era, which provoked a range of emergency responses, might be viewed differently in light of that government’s racist, exclusionary, and oppressive policies.30 Likewise, in Myanmar the Tatmadaw’s invocation of emergency powers in 2020, following general elections that it alleged were rigged, and its crushing of political dissent, including armed resistance,31 can hardly be evaluated constitutionally in neutral terms, even if formal legal procedures for were followed. Leaving aside emergencies arising from political disputes over foundational constitutional matters, other acute internal and external events might provoke a formal emergency response – and a second cluster of ways in which formal emergency powers intersect with constitutional politics. An acute threat (e.g., a terrorist attack, natural disaster, public health crisis) might raise questions about which branch of government or which agency is best-positioned to respond, and the extent to which ordinary processes of law-making or implementation should be followed or changed, and for how long. Although these issues might not be foundational in the sense that they don’t challenge the fundamental structure of the government, they might nevertheless exacerbate underlying tensions and rivalries among branches or institutions of government. In particular, formal emergencies, in particular, tend to concentrate power in the executive and the security establishment, shifting power away from the judiciary and other oversight bodies.32 Because the institutional stakes are so high, definitional and interpretive

For a discussion of the War Measures Act and its invocation during the FLQ crisis in a larger historical account of Canada’s emergency legislation, see Lindsay (2014). 28 Formally, An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, S.C. 2000, c. 26. 29 Section 2(2). 30 For a recent historical account and retrospective evaluation of the role of constitutional law in apartheid-era South African, see Davis (2019), in Alviar García & Frankenberg, eds (2019), 57–75. 31 Thawnghmung & Noah (2021). 32 In defence of a strong oversight role for the courts in an emergency, see Dyzenhaus (2006). 27

The constitutional politics of emergency powers  171 questions are critical (what counts as an emergency) – as is the critical Schmittian question, who ultimately decides?33 The perennial danger of emergency powers is that what appears to be an acute, time-limited threat might so transform the government and its fundamental constitutional values that a ‘temporary’ emergency becomes normalised: Malaysia’s 42-year-long emergency is a quintessential contemporary example.34 So too are the use of acute events to enact or proclaim sweeping emergency powers to address a range of hypothetical problems – as some governments, such as Cambodia’s, appeared to have done in 2020 during the COVID-19 pandemic.35 The dangers of overreaction often prompt, perhaps belatedly, calls for governments to take proactive steps to prevent or mitigate future crises – both to mitigate the direct harm (e.g., infections or hurricane-related deaths) or to pre-empt the need for an exaggerated legal response with the attendant, long-term rule-of-law dangers. One of the early lessons of the COVID-19 pandemic was that the jurisdictions that were the most successful in containing the first wave of the pandemic – such as Singapore, South Korea, Taiwan, and Vietnam – had extensive experience with earlier epidemics (SARS, MERS) and had the legal and institutional infrastructure in place to respond swiftly;36 those that fared poorly neglected those lessons or redirected resources away from agencies tasked with containing outbreaks of deadly viruses.37 The idea that planning can prevent or mitigate a crisis raises important questions about time-framing,38 about how we construct a narrative of an ‘emergency’ and, in particular, when that narrative begins. The time frame in turn has implications for the formulation of legal responses (pre-emptive or reactive) and, ultimately, for the constitutional politics of emergency powers. When we view an emergency situation in retrospect, it might become clearer what we could have done to prevent it. For example, many accounts of the United States government’s failure to prevent the 9/11 attacks, including the 9/11 Commission Report, delved into the ‘root causes’ of terrorism and the complex social and political conditions that inspired followers of Osama bin Laden.39 The basic idea behind ‘root causes of terrorism is that certain conditions provide a social environment and widespread grievances that, when combined with certain precipitant factors, result in the emergence of terrorist organizations and terrorist acts.’40 Practically speaking, a response is that ‘a failure to understand the linkages between these underlying conditions and terrorism may result in inadequate counterterrorist policies.’41 Identifying and addressing root causes – whether of political violence or of infectious diseases – might ultimately be good policy, pre-empting the need to invoke more extreme emergency measures, but it is politically controversial. In the context of political violence, it might be seen as exculpatory, while in other cases, it might give rise to what epidemiologists have termed the paradox of prevention: ‘measures taken to avert an outcome, if they are successful, can

See Schmitt (1988), 5 (‘sovereign is he who decides on the exception’). Including other emergencies dating back to the 1960s, Malaysia was under emergency rule for almost 60 years: see Whiting (2013). 35 Ly, Hing & Soy (2020), in Ramraj, ed (2020), 325–38. 36 See corresponding chapters in Ramraj, ed (2020). 37 ‘Global Pandemic Warnings Ignored’ (2020); Robertson (2021). 38 Kelman (1981). 39 The 9/11 Commission Report (2004); Newman (2006). 40 Newman, see n 39 at 750. 41 Newman, see n 39 at 749. 33 34

172  Research handbook on the politics of constitutional law be seen in retrospect as having been unnecessary.’42 Addressing the root causes of terrorism, the sources of a disease outbreak, or the underlying causes of climate change requires trust in scientific research and ‘expertise’ – which invites scepticism and political resistance. On a broader time-frame, then, avoiding the invocation of emergency powers with the attendant risks of abuse in times of crisis cannot be neatly separated from the realm of political contestation in earlier, calmer times.

5.

CONSTITUTIONAL EMERGENCIES AND THE PARADOX OF PREVENTION

With the two central ideas in the previous section in mind – foundational constitutional disputes and the prevention paradox – we can return to the theory of emergency powers and consider whether an emergency powers regime could, in the various contexts identified in this chapter, enable an effective response while constraining government and minimising the scope for abuse. Three questions will guide us. First, what is the role of emergency powers in relation to foundational constitutional controversies? Second, can emergency powers empower the state to respond effectively to a crisis while preventing abuse? Third, can the need for emergency powers be pre-empted through ordinary laws and institutions? Working our way through these questions may help us to better understand the appeal of emergency powers, but also their limits – and the role of constitutional politics in supporting or undermining their overall aims. So what might be the role of emergency powers in relation to foundational constitutional controversies? On the one hand, emergency powers, as part of the constitution generally, play an important role in ‘settling’ fundamental questions and, in particular, redirecting disputes from the streets or battlefields into formal institutions. Particularly in post-conflict settings, when fundamental disagreements are negotiated and addressed through an inclusive constitutional-drafting process (or so the theory goes), a constitution brings opposing factions together within a common political framework and provides a formal procedure for political decision-making. While the success of constitutions depends ultimately on their acceptance by those they purport to govern, emergency powers provide at least a short-term mechanism to deal with those who might insist on continuing to fight on the streets: in a best case scenario (which has some precedence in practice43), they might enable a nascent government to prevent a political assassination, imposing temporary restrictive measures, such as a curfew, to bring a potentially volatile situation under control, allowing time for public institutions to mature and earn the public trust. On the other hand, using emergencies in this limited and controlled way seems exceptional. The use of emergency powers can also exacerbate conflicts (as in Northern Ireland during The Troubles), concentrate power in the executive (as in Malaysia post-1969), or – in the form of a national security law – provide a (seemingly?) decisive victory for one side in the interpretation of a constitutional arrangement (as in Hong Kong under China’s 2020 National Security Law for Hong Kong). In these situations, the ‘crisis’ that prompted the emergency response (e.g. civil unrest) might quickly fade away, with the emergency powers regime itself imposing a lasting harm on the polity. Brubaker (2021). The 2008 emergency in Timor Leste provides an example of how an emergency can be used in this way: see my account in Ramraj (2010), Ramraj & Thiruvengadam, eds (2010), 21–55, 33–34. 42 43

The constitutional politics of emergency powers  173 Is there any more hope for emergency powers to fulfil their promise in situations when the ‘crisis’ does not pose as direct a challenge to the foundational constitutional arrangements? Can emergency powers be framed in such a way as to empower the state to respond effectively to a crisis while preventing abuse of that power? Constitutional politics reminds us that there is no straightforward answer to this question; successful constraint depends on a complex array of factors. First, the vast literature on comparative constitutional law makes it clear that the ability of constitutional law to constrain depends on the strength of institutions, including the courts and the legislature, and their ability to impose effective checks on the executive. Second, even when other public institutions are strong, effective constraint also depends on forbearance by the executive and a ‘culture of justification … in which every exercise of power is expected to be justified.’44 In contrast, the premature, indiscriminate, or opportunistic use of emergency powers will weaken the power of law to constrain, particularly if those powers become normalised. Third, constitutional law is embedded in society and, as Judge Learned Hand reminds us, it requires the support and vigilant monitoring by civil society to thrive. Finally, whether emergency powers can fulfil the aspiration of constraint depends on whether they are viewed by the government and the society as an option of last resort. Emergencies that start out innocuously can gradually undermine trust in government, transforming discrete crises issues into foundational ones, inviting dissent and conflict. The ultimate goal then, in approaching emergency powers, might not be to frame them in a manner that constrains their use, but to avoid having to use them at all. The possibility of gradual slippage or mission creep brings us to a final question: How might the invocation of emergency powers be pre-empted? As we have seen, a constitutional politics lens suggests that the answer lies not in the constitutional framing of emergency powers themselves, but in the societal foundation for the constitution and its values. Once we open up the timeframe, however, there may well be, at a practical level, a variety of ways of minimising the potential for abuse, without having to transform hearts and minds and infuse a society with a constitutional culture of justification from the ground up. It may be, for instance, that some crises or disasters can serve as a basis for reforming specific laws and institutions to address specific threats. As we noted earlier, the SARS and MERS epidemics inspired governments in East and Southeast Asia with contrasting ideological foundations (e.g., Taiwan, Vietnam, Singapore) to establish laws and institutional protocols for responding to the outbreak of an infectious disease – early notifications and information-sharing being among them.45 The legal and institutional reforms put in place by all three governments enabled an effective response to the first wave of the COVID-19 pandemic in a deliberate, measured, and targeted way. By the same token, counter-terrorism scholars have argued that ‘target-hardening’ and security screening are effective ways of preventing or deterring terrorist attacks, pre-empting the need for more extreme responses.46 As the planet grapples with rising climate-related disasters, many developing countries have stressed the importance of adaptation to climate change, and taking concrete measures in response, even as we strive to mitigate its effects.47 Of course, not all governments have the capacity to respond pre-emptively to potential threats in this way – many clearly do not, raising important questions about global inequality and foreign policy. 46 47 44 45

Mureinik (1994). See n 36. Hesterman, ed (2018). McGinn & Isenhour (2021).

174  Research handbook on the politics of constitutional law But the tendency of emergency powers to become normalised with political power increasingly concentrated in the executive suggests that pre-empting the use of emergency may well be the best overall strategy for preventing their abuse.

6.

CONCLUSION: ANTICIPATING EMERGENCIES

A formal state of emergency is, in many ways, an admission of failure: a failure of diplomacy, a failure of science, a failure of politics. No government is perfect, of course, but a government committed to the well-being of the society and the planet would confront the paradox of prevention head-on. A disaster prevented – a suicide-bombing, a pandemic, a climate catastrophe, an insurrection – is a success, even if we can’t see the outcome. Persuading government to claim victory when nothing happens is a tall order, of course. It might therefore be tempting to wait for the disaster and say: See, I told you, if only you had agreed to our earlier plans, none of this would have happened. I therefore declare an emergency. The constitutional politics of emergency powers, then, involves not only a quest for culture of justification or an alignment of constitutional principles with social values and institutions. It requires anticipating and pre-empting the root causes of the disasters that prompt governments to declare an emergency. We might, occasionally get lucky in our failures. A state of emergency might end up being restrained, time-limited, and proportional, with no lasting harm to the constitutional order or the balance of powers in the state. This venerable constitutional goal remains a worthy aspiration. We should spend time reforming legal and political institutions and shoring up their societal foundations to constrain abuses of power – a particularly tall order in times of democratic backsliding. But we might also do well to roll up our sleeves and get down to the tedious work of pre-empting the need for emergency rule in the first place.

REFERENCES Ackerman, Bruce. (1989). ‘Constitutional Politics/Constitutional Law.’ Yale L.J. 99: 459. Alviar Garcia, Helena & Gunter Frankenburg (eds). Authoritarian Constitutionalism: Comparative Analysis and Critique (Edward Elgar Publishing, 2019). Brubaker, Rogers. (2021). ‘Paradoxes of Populism during the Pandemic,’ Thesis Eleven 164: 73–87. Chan, Cora & Fiona de Londras (eds). China’s National Security Endangering Hong Kong’s Rule of Law? (Hart Publishing, 2020). Davis, Dennis M. ‘Authoritarian Constitutionalism – The South African Experience’ in Helena Alviar García and Günter Frankenberg (eds) Authoritarian Constitutionalism: Comparative Analysis and Critique (Edward Elgar Publishing, 2019) 57–75. Dillard, Irving (ed). The Spirit of Liberty: Papers and Addresses of Learned Hand (New York, 1959). Dyzenhaus, David. The Constitution of Law: Legality in a Time of Emergency (Cambridge University Press, 2006). Ferejohn, John & Pasquale Pasquino. (2004). ‘The Law of the Exception: A Typology of Emergency Powers,’ ICON 2: 210. Glenn, H. Patrick. (2013). ‘The State as Legal Tradition,’ Cambridge Journal of International and Comparative Law 2(4): 704. ‘Global Pandemic Warnings Ignored’ (editorial), New York Times, 1 March 2020, p. 10(L). Gross, Oren. (2003). ‘Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?,’ Yale Law Journal 112: 1011. Hesterman, Jennifer (ed) Soft Target Hardening: Protecting People from Attack, 2nd edition (Routledge, 2018).

The constitutional politics of emergency powers  175 Howell, William G. & Terry Moe. (2021). ‘America’s Crisis of Democracy,’ Political Science Quarterly 136: 105. International Center for Not-for-Profit Law (ICNL), https://​www​.icnl​.org/​covid19tracker/​?issue​=​5. IPCC, 2021: Summary for Policymakers. In: Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change [MassonDelmotte, V., P. Zhai, A. Pirani, S. L. Connors, C. Péan, S. Berger, N. Caud, Y. Chen, L. Goldfarb, M. I. Gomis, M. Huang, K. Leitzell, E. Lonnoy, J. B. R. Matthews, T. K. Maycock, T. Waterfield, O. Yelekçi, R. Yu & B. Zhou (eds)]. Cambridge University Press (in press), available at https://​www​.ipcc​.ch/​report/​ar6/​wg1/​#FullReport. Kelman, Mark. (1981). ‘Interpretive Construction in Substantive Criminal Law,’ Stanford Law Review 33: 591–673. Lawrence, Benjamin. (2020). ‘Outlawing Opposition, Imposing Rule of Law: Authoritarian Constitutionalism in Cambodia,’ Asian Journal of Comparative Law 15: 225. Lindsay, John. (2014). ‘The Power to React: Review and Discussion of Canada's Emergency Measures Legislation,’ The International Journal of Human Rights 18: 159–77. Lo, Sonny. (2021). ‘Hong Kong in 2020: National Security Law and Truncated Autonomy,’ Asian Survey 61: 34–42. Ly, Ratana Vandanet Hing & Kimsan Soy, ‘Cambodia: Public Health, Economic, and Political Dimensions’ in Victor V. Ramraj (ed) Covid-19 in Asia: Law and Policy Contexts (Oxford University Press, 2020) 325–38. Mattei, Ugo. (1997). ‘Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems,’ American Journal of Comparative Law 45: 5. McGinn, Anna & Cindy Isenhour. (2021). ‘Negotiating the Future of the Adaptation Fund: On the Politics of Defining and Defending Justice in the Post-Paris Agreement Period,’ Climate Policy 21: 383. Mureinik, Etienne. (1994). ‘A Bridge to Where – Introducing the Interim Bill of Rights,’ South African Journal on Human Rights 10: 31. Newman, Edward. (2006). ‘Exploring the ‘Root Causes’ of Terrorism Studies’ Conflict & Terrorism 29: 749–72. Ramraj, Victor V. (2011). ‘Emergency Powers and Constitutional Theory,’ Hong Kong Law Journal 41(2): 481. Ramraj, Victor V. ‘The Emergency Powers Paradox’ in Victor V. Ramraj and Arun K. Thiruvengadam (eds) Emergency Powers in Asia (Cambridge University Press, 2010) 21–55. Ramraj, Victor V. (ed) Covid-19 in Asia: Law and Policy Contexts (Oxford University Press, 2020). Ramraj, Victor V. (ed) Emergencies and the Limits of Legality (Cambridge University Press, 2008). Robertson, Grant, ‘Ottawa must address mistakes regarding pandemic preparedness, experts say,’ Globe & Mail, 23 February 2021 (online). Rossiter, Clinton. Constitutional Dictatorship: Crisis Government in Modern Democracies (Transaction Publishers, 2002; originally published in 1948). Schmitt, Carl. Political Theology: Four Chapters on the Theory of Sovereignty (MIT Press, 1988). Schonthal, Benjamin & Tilak Jayatilake. ‘Religion amid the Pandemic: A Buddhist Case Study’ in Victor V. Ramraj (ed) Covid-19 in Asia: Law and Policy Contexts (Oxford University Press, 2020) 269–81. Tan, Rebecca, et al. ‘Trump supporters storm U.S. Capitol, with one woman killed, three more dead and tear gas fired,’ The Washington Post (7 January 2021). Teubner, Gunther & Anna Becker. (2013). ‘Expanding Constitutionalism,’ Indiana Journal of Global Legal Studies 20: 523. Thawnghmung, Ardeth Maung & Khun Noah. (2021). ‘Myanmar’s military coup and the elevation of the minority agenda?’ Critical Asian Studies 53(2): 297–309. The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States (Norton, 2004). Tushnet, Mark. Taking the Constitution Away from the Courts (Princeton University Press, 1999). Whiting, Amanda. (2013). ‘Emerging from Emergency Rule? Malaysian Law “Reform” 2011–2013’ Australian Journal of Asian Law 1–55.

11. Japan: a case against the amendment politics? Tokujin Matsudaira

1. INTRODUCTION As the intellectual Shūichi Katō (1919–2008) put it in a conversation with constitutional scholar Yoichi Higuchi in 1995: There are two ways to change the society (in Japan). One is to be forcibly changed when there is a catastrophe and strong external pressure is applied. When that happens, everyone changes together. The other is, and this is the most difficult part, a gradual transformation without taking a sudden turn. I think this is exactly what happened in the first 50 years after the war. … In Japan there is a huge gap between the intellectual environments in 1945, what was common knowledge at that time, and what is common knowledge today, 50 years later. However, if we ask when this happened, we can only say that it did not happen at a specific point of time, but rather, it has been transforming inexorably over the past 50 years. The same can be said for the so-called ‘interpretive amendment of the Constitution’. The interpretation of Article 9 has been transformed little by little. It is not just a change, but it is a shift in a certain direction. The accumulation of these small constitutional reinterpretations will make a tremendous difference from the original constitution’. Shūichi Katō (1919–2008), the thinker, in a conversation with Yoichi Higuchi, the constitutional scholar, in 1995.1

The endurance of Japan’s postwar constitution and, in contrast, the constant calls for its revision have long been among the subjects that have fascinated comparative constitutional lawyers. Interestingly, it is Article 9 that integrates the ambivalence of Japanese constitutionalism. In Japan, there is a tendency to emphasise the existence of the movement against the constitutional revision proposed by the ruling party, the Liberal Democratic Party (LDP), while ignoring the existence of the grassroots revisionist movement. The same trend is seen in the younger generation, which believes that the constitution needs to be amended in terms of the governing structure while taking durability as a given (McElwain & Winkler 2015). In contrast, foreign observers note the deviation between Article 9 and reality (Levinson 2015). Japan has both armed forces in the name of the Self-Defense Forces (SDF) and a military alliance with the US. In a conversation with Noam Chomsky, the Japanese writer Yō Henmi felt the difficulty of defending Article 9. The American antiwar icon was unmoved by the Japanese narrative, Henmi wrote. Japan was complicit in the Korean War and Vietnam War. Its industry has profited greatly by war demand, including making body bags for American GIs. On the other hand, the US military has been waging war from bases in Okinawa. For Chomsky, Article 9 is only hypocritical if it is used to cover up these ugly realities (Henmi & Chomsky 2003). Ironically, this type of criticism has been cited by commentators who believe Realpolitik as evidence to support the need for Japan to amend its constitution (Samuels 2007).

1



Katō & Higuchi (1995), 50–51.

176

Japan: a case against the amendment politics?  177 They argue that Japan should fulfill its military obligation to defend other liberal democracies from terrorists and authoritarian states. This chapter does not engage in the never-ending debate over Article 9. Instead, we will pay much attention to the interpretative changes as seen by Shūichi Katō that finally amounts to substantial constitutional transformation – namely, how the amendment politics has reshaped the social recognition of the pacifist constitution. Recent studies present a paradox that government practices under-enforcing the 1946 constitution have increasingly reduced the need for formal constitutional amendments (Yokodaido 2019). Especially after 2012, under the top-down executive rule of then-PM Shinzo Abe who is attracted by the Bush-Cheney presidency (Nakakita 2020), it seems that such discounted constitutionalism has reached a new stage of what comparative lawyers describe as abusive constitutional borrowing in which ‘constitutional-democratic norms are used to undermine constitutional democracy’ (Dixon & Landau 2021; Scheppele 2021). The strongest opponents of abusive constitutional borrowing are constitutional scholars. Being faced with the 2012 system, the majority of them have expressed opposition to the two constitutional amendments proposed by the LDP on the grounds that these amendments are anti-constitutional. In the wake of the 2015 countermovement, anti-amendment scholars have succeeded in transforming ‘constitutionalism’ from a theoretical term into a magic word to gain public support. On the surface, the big and singular Constitutionalism refers to a liberal version of ‘legal science’ against abusing borrowing, which is a system and mindset that requires observers to treat Japan as a universalist civil society that just happens to settle in the Japanese islands. But in reality, it is the constitutional practice of the imperialist powers of the United States, Britain, Germany, and France, which the Japanese elite were aware of and imitated in modern nation building. Underlying this was what Hans Kelsen called ‘racial pride’ in the fact that among Asians Japanese alone could participate in the Hegelian Weltgeschichite that excluded non-Western peoples.2 It is precisely because of this shared scholarly nationalism that liberal and conservative lawyers were able to unite against Abe’s attempt to rewrite the 1946 constitution. Since then, a consensus has been reached that constitutional amendments that suppress democratic discourse, human rights and separation of power should be rejected as anti-constitutional, ‘bad’ amendments, even if they do not formally violate the provisions of the Constitution. Still, in this chapter we will first stress on some inconvenient truths. First, in Japan there is indeed a bottom-up conservative movement that supports a top-down constitutional reform. Second, the grassroots revisionist movement supports the constitutionalisation of the Japan-US alliance, but rejects liberal democratic values and advocates restrictions on human rights based on Japan’s tribalistic national morality. Third, although the Japanese people do not support constitutional amendment, they are satisfied with ‘ugly realities’ that are contrary to the Constitution, among them especially subordination to the United States. To that extent, a profound constitutional change without amending the constitution is taking place. These factors are the keys to understanding the constitutional politics in Japan. 2 Kōji Satō, a pro-western conservative constitutional scholar, positions the 1946 Constitution as part of Japan’s modern ‘civilisation’ that began with the Meiji Restoration, arguing that adopting constitutionalism was the decisive factor that made Japan belong to the West and differentiate itself from authoritarian China. See Satō (2016), 160.

178  Research handbook on the politics of constitutional law This chapter is organised as follows: Section 2 focuses on the flexible structure of the postwar constitution, which has created a stable political order by allowing interpretive ambiguity; Section 3 examines the dynamism of the movements and political forces that have promoted the amendment politics led by Shinzo Abe, the movement Prime Minister in 2012–2020; and Section 4 examines the dynamic and institutional factors that frustrated Abe’s amendment politics. Section 5 provides comparative observations for further studies, especially on the role of constitutional norms, the judicial review and party politics in the amendment politics. Much of the discussion in this chapter focuses on constitutional proposals made by the Abe government in the 2010s. Both Section 5 and a concluding Section 6 draw out some of the features of the politics of constitutional amendment during that period that have some analogues elsewhere. The emphasis on the details of the Japanese experience, though, has an important methodological implication: Comparative constitutional analysis must always tack between generalisations that have some rough correspondence to events in many nations while attending to the details that make a difference in specific national contexts.

2.

STABILITY AND AMBIGUITY

2.1

The Myth of ‘Imposed Constitution’

The Constitution of Japan, promulgated in 1946, has long been labelled as an ‘imposed constitution’. The controversy over whether the 1946 constitution was imposed or not is, however, of little significance for three reasons described below. First, if an imposed constitution is meant to unjustly suppress the people’s constituent power to create a constitution, the Japanese Constitution at that time did not give such power to the people. The Meiji Constitution granted the Japanese Emperor (Tennō) the power to initiate constitutional amendments, and the role of elected House of Representatives in the amending process was limited. And Emperor Hirohito, who was the sovereign, accepted the Potsdam Declaration which called for Japan to end the state of war by changing its constitutional principles. Then, as a matter of law, the new constitution was adopted pursuant to the procedural amendment rule prescribed by the Meiji Constitution (Elkins & Ginsburg & Melton 2008). Second, Article 9 met almost no opposition in the process of constitution-making. What the Japanese officials strongly resisted against the draft constitution, which was said ‘made in a week’s work behind closed doors’, were the sovereignty of the people with the Tennō as its symbol, and the abolition of the feudal reactionary family system. They even succeeded in making the SCAP withdraw its proposals on a unicameral Diet and parliamentary approval of the Supreme Court justices, but leaving the war-renouncing provision untouched. The SCAP’s ‘threat’ to the Japanese ruling elite was not the possibility of violent suppression, but to make the draft public and, depending on the situation, to put it to a referendum. At that time, the SCAP was acting on the basis of the Potsdam Declaration, which instructed the Japanese government to ‘remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people’. Even after the Constitution came into effect, the SCAP approached then-Prime Minister Shigeru Yoshida about a referendum. However, Yoshida was negative about revising the new constitution (Koseki 1998; Kades 1989).

Japan: a case against the amendment politics?  179 Third, the narrative of ‘imposed constitution’ can theoretically be understood as a criticism of the denial of the right to choose an undemocratic constitution. In fact, the conservatives calling for constitutional amendment are using this as the basis for their argument. However, under an authoritarian constitutionalism in Mark Tushnet’s conception, it should not matter whether the nation’s constitution is imposed or not (Tushnet 2015). Also, if, like the philosopher Jacques Rancière, we view popular sovereignty as a gravitational force (a modern version of the traditional idea of implied consent), that sustains the system imposed by the rulers, an imposed constitution is still not a problem. 2.2

Elite Construction

2.2.1 Borrowing revolutionary narrative However, it cannot be denied that the 1946 constitution was a trade-off made between the American and Japanese elite, and its interpretation was left to lawyers on both sides. The political scientist Hideo Ōtake points out that the postwar constitutions of Germany and Japan have the character of treaties that promised the Allied nations and neighbouring countries peaceful coexistence through incorporation into the liberal democracy (Ōtake 2001). Thus the two constitutions fall within the purview of elite construction in Bruce Ackerman’s tripartite classification of modern constitutionalism (Ackerman 2019). But in the case of Japan, the elite construction, which cleverly excluded ordinary Japanese from self-conscious participation, did not bother the Japanese as much as one might imagine. Despite the success of Japanese government lawyers in ‘Japanizing’ the Constitution through intentional ‘mistranslation’ and deliberate interpretation, the appeal of the postwar Constitution as the first law written in plain Japanese was not diminished. For the Japanese elite, who had survived an ultra-nationalistic regime in which the people were used as a source of labour and taxes for the nation, and as ultimate weapons – think of Kamikaze and human torpedo – in the final stages of the war, the Preamble and Article 9 of the Constitution, which made the people the sovereign who can express their free will, were even poignant (Koseki 1998). The American elite focused on dismantling the institutions that had supported militarism, such as state Shinto and the family (Ie) system, by enshrining the dignity of the individual (Article 13), gender equality (Articles 14 and 24) and the separation of religion and state (Article 20). In that sense, the pacifist constitution was no doubt placing an imposition on the Japanese elite who profited from prewar institutions (Young 2017). On the other hand, the Japanese elite, in contrast to their indifference to the Peace Article, devoted themselves to the preservation of the sacred Tennō system. After many twists and turns they succeeded, not only in separating the emperor from the institutional militarism and state Shinto removed by the new constitution, but also in leaving him as a symbol of the unity of the Japanese people (Article 1). The American elite understood that ‘Japanese cult of the emperor’, or theocratic form of the Japanese nation-state (Kokutai) that venerates the Tennō was the problem, and that both militarism and ultra-nationalism were its most distorted forms. Nevertheless, they ignored the sacred emperor and contented themselves with the privatisation of Shinto shrines (Almog 2014; Shimazono 2019). 2.2.2 Influence of new deal jurisprudence It is also worth noting that the American judicial doctrine reversing the 1905 Lochner decision was incorporated into the 1946 constitution by the New Dealers in the SCAP. In the US

180  Research handbook on the politics of constitutional law after 1937, federal courts refrained from overly defending economic freedom and began to support the New Deal promoted by the Roosevelt administration, by allowing legislation that promoted the correction of socioeconomic inequality and the restoration of minority rights. In 1946, the SCAP lawyers who drafted the Japanese constitution were still conscious of the criticism against the substantive due process theory taken by Lochner. As a result, the second sentence of Article 13 honours ‘life, liberty, and the right to pursue happiness’, instead of ‘life, liberty, and property’. The rights to business and property, prescribed in Article 22 and 29, are both placed under constraint by ‘public welfare’. Moreover, Article 27 allows for worker protection legislation that has often been deemed unconstitutional in the United States (Anzai 2018). Above all, Justice Harlan Stone’s famous ‘Footnote Four’ in the 1938 Carolene Products case has been reformulated in Japan as a so-called ‘double standard’ (Niju-no-kijun) jurisprudence that emphasises the superiority of free speech, and has become a common theory in constitutional interpretation that dominates Japanese lawyers of future generations. Although the Supreme Court of Japan has not explicitly adopted it, at a minimum, the constitutionally conceptualised ‘public welfare’ that restricts economic freedom have certainly helped the courts to legitimise the regulatory and administrative state constitutional.3 Some scholars have indicated that the constitutionalisation of government intervention and labour-management cooperation, which originated in the wartime ‘1940 System’, led to Japan’s postwar rapid economic growth. Yukio Noguchi, an economist, points out that under the updated 1940 system, the government was able to control business corporations through policy financing and informal guidance, while taking into account the autonomy and insight lodged in the corporations (Noguchi 1998). Morihide Katayama, an expert of modern Japanese political history, argues that under the postwar constitution, the 1940 system and democracy interacted with each other, thus giving elected conservative politicians the opportunity to dominate the political-economic process of resource allocation (Katayama 2012). Thus, the flexible structure of the 1946 constitution, which satisfies both progressive and establishment elite, is the key to the unexpected endurance of the Constitution. 2.2.3 Conservative control of political process It should be noted, however, that in Japan both the political branches and the judiciary are reluctant to maintain anti-monopoly and fair competition in the political process essential to the Footnote Four doctrine. The courts see no contradiction in both securing the importation of Robert Mapplethorpe’s artistic nude from confiscation,4 and protecting statutory property rights that clash with freedom of speech in public space by invoking criminal trespass laws.5 The consensus is that speech challenging the mainstream socio-political values is constitutionally protected, to the extent that it can be construed as, in Carl Schmitt’s term, ‘neutralized In a 1972 decision upholding the government regulation on retail market, the Court declared that the Constitution envisages a vision of welfare state obligating the government to take regulatory measures as means of implementing socio-economic policies, and that those measures would be constitutional under rational-basis review. Saikō Saibanshō [Sup. Ct.] Nov. 22, 1972, Shō 47 (a) no. 23, 26 Keishū 586 (Japan). 4 Saikō Saibanshō [Sup. Ct.] Feb. 19, 2008, Hei 15 (gyō tsu) no. 157, 62 Minshū 445. 5 The Court has been negative towards recognising the public forum doctrine. In a leading case on banning leafleting at train stations, it simply held that free speech does not trump property rights. See Saikō Saibanshō [Sup. Ct.] Dec. 19, 1984, Shō 59 (a) no. 206, 38 Keishū 3026. 3

Japan: a case against the amendment politics?  181 and depoliticized’ application of individual’s right of autonomy. This explains why the judges adopt literally a double standard when dealing with election law cases that are highly political. Japan’s electoral law has a long history of electoral inequality favouring rural districts where conservative parties are prevailing. It is also notorious for its comprehensive regulation limiting campaigning period, banning canvassing and maximising the incumbent advantage of hereditary politicians who play the key role in the conservative one-party dominance. Nevertheless, it has never been amended by the Diet, nor has it been invalidated by the courts. Also, after the end of the American occupation, the Japanese government abolished or decisively weakened many of reforms promoted by the SCAP, such as the decentralisation of the police, the likewise decentralised school board system to supervise the democratisation of public education, and the Japanese version of FCC to ensure the political neutrality in broadcasting administration. All of these institutions function as what Tom Ginsburg called ‘insurance’ by the New Dealers in the SCAP to guard the 1946 constitution (Ginsburg 2008). On the other hand, the Japanese ruling elite had no problem with embracing the ‘pragmatic’ part of imposed legislation, such as the Hatch Act and public order ordinance that helped conservative dominance. As a result, it is no exaggeration to say that the Japanese constitution has entrusted its enforcement from its inception to conservative governments that are not faithful to it (Okudaira 1990). 2.3

Article 9 as Statecraft and Constitutional Faith

2.3.1 Cunning diplomacy? Article 9 of the Constitution gave postwar Japan the statecraft to survive acrimonious international politics and rebuild its credibility and wealth. Throughout the Cold War, the United States, the Soviet Union, and China periodically engaged in armed conflicts with other countries. In contrast, Japan was the only country that has never used force for more than 75 years and was the only US ally to establish friendly relations with countries that had been hostile to the US, such as Cuba, Vietnam, and Iran. Since Shigeru Yoshida, Japan’s strategy of using Article 9 and domestic support for it to avoid being drawn into US wars has been a ‘cunning diplomacy’, as described by former Prime Minister Noboru Takeshita (Shaller 1997). To be noted, Article 9 also represents a profound advancement of humanity and its international law beyond statecraft. By having pacifist provisions, the Japanese Constitution became the first supreme law of land to deny the infallibility of the people, who had risen to constituent power in the civil revolutions of Western Europe and North America. The philosopher Jacque Derrida praised the 1995 statement by then-Prime Minister Tomiichi Murayama, which acknowledged Japan’s responsibility for the war of aggression and colonial rule (Gaimusho 1995), for he saw something in it that denied the integrity of the nation-state. But the Murayama Statement was only possible because of the pacifist constitution, which prompted critical reflection on traditional raison d’être (Derrida 2004). 2.3.2 Pacifism without self-conscious reconciliation fosters social authoritarianism On the other hand, it is also true that Article 9 as a ‘reconciliation clause’ prevents the Japanese people from reflecting on their war responsibility and rebuilding friendly relations with neighbouring countries. As long as these friendly relations are not established, the state of hostility will not be resolved, and there will be pressure to revise Article 9. Ironically, the declaration of war renunciation in the 1946 constitution has freed the Japanese people from

182  Research handbook on the politics of constitutional law the obligation to reflect on and redeem the mistakes of the past. In reality, Article 9 is like an apology advertising. Postwar democracy based on the constitutional pacifism demilitarised the government, but failed to civilianise the society. As sociologist Eiji Oguma has pointed out, the institutional and cultural principle organising modern Japanese society is rooted in Japan’s pre-war military and governmental establishments. In other words, the postwar Japan is a dually structured society which is not only made up of competing associations of individuals, but also of intermediary organisations such as village-bonded communities (Mura-shakai) and corporations that define the existence of individuals and hold their fate in their hands (Oguma 2021). The post-war conservative regime has skillfully exploited the dual nature of Japanese society, which controls individuals not by restricting their rights through laws but through peer pressure based on Max Weber’s concept of internal morality (Biennmoral). In the Japanese case, a constitutional pacifism under an authoritarian social order well matches with denial of a litigatious relationship between individual rights and government powers (Katō & Higuchi 1995). This social authoritarianism contributed to the high economic growth in the 1950–60s and preserving part of prewar religious militarism. By doing so, it restores and updates the narrative of Japan’s exclusive nationalism in which a strong sense of collective victimhood makes the Japanese forget their collective responsibility as a perpetrator state. As historians have pointed out, the Japanese society is still struggling with liberalistic values prescribed in the 1946 constitution, and at its base, ‘the impossibility of coexistence with a heterogeneous other’ was as penetrating as ever. Even 75 years after the enforcement of the Constitution, a German reporter discovers that misogyny, bullying, and anti-Semitic issues ‘only become a problem in Japan, an island nation, when a foreigner criticizes them’.6 Therefore, it was quite natural that conservatives, who were hostile not only to China and the Korean Peninsula but also to the growing diversity within Japanese society, would move to abolish the Peace Constitution, which was based on reconciliation and coexistence.

3.

DYNAMISM OF THE AMENDMENT POLITICS

3.1 Movement 3.1.1 Culture war In his inaugural speech on 23 March 2012, then-German President Joachim Gauck spoke forcefully to his fellow citizens that the Basic Law (Grundgesetz) invests all people with ‘the same dignity, no matter where they come from, what they believe or what language they speak. It does so not as a reward for successful integration; nor does it withdraw the right to dignity as a punishment for a refusal to integrate. Our constitution and our humanity behoove us to see ourselves in others, our brothers and sisters, as talented and as entitled to participation as we are’.7 By stressing the individualistic character of modern human rights, Gauck ensured that the Federal Republic would remain a pluralistic democracy even in the face of the far-right backlash in Germany which the neoliberal globalisation has provoked.

6 7



Hahn (2021). Gauck (2012).

Japan: a case against the amendment politics?  183 At about the same time, however, a very different situation was emerging in Japan that was supposed to share the lessons of history and postwar constitutional values with Germany. On 22 April, before returning to power, the LDP published for the first time a complete draft of constitutional amendment. The release of the 2012 draft a symbolic event that foreshadowed the arrival of constitutional politics one year after the catastrophic earthquake and tsunami of 2011and the ensuing meltdown of the nuclear plant at Fukushima (LDP 2012). In three respects, the LDP draft is an open declaration of cultural war on constitutional values summarised in Gauck’s speech: (1) The draft deletes the current Preamble, which emphasises a ‘universal principle of mankind’, and rewrites it entirely to state that Japan is not one of the civil societies that share universal values, but a unique nation that is distinct from such civil societies and from Asia. (2) While retaining Article 9, it restores war powers by adding emergency provisions to break the Peace Article. (3) It denies the dignity of the citizen as an individual, which is a prerequisite for democracy, and downgrades the latter to a mere abstract juridical personality with only private rights. (4) It changes the structure of constitutional rights based on Footnote Four, removing all regulations on economic freedom while allowing restrictions on free speech in name of the ‘public interest and public order’ (Repeta 2013; VOYCE 2015). 3.1.2 Social and religious conservatives It was not only the beneficiaries of the ancient regime who were dissatisfied with the current constitution. The racial elite of landowners and small business owners, as well as the religious population living in cities but strongly influenced by the traditional value system, also felt marginalised under the 1946 Constitution. Masahiro Shinoda is well known as a filmmaker who focuses on exploring the intellectual history (Geistesgeschichite) of Japanese nationalism, and many of his early works were made in collaboration with the famous writer Shuji Terayama. Shinoda explains the Japanese conservatives’ constitutional sentiment by referring to Terayama’s famous short poem (Tanka) lamenting that postwar Japan is not a country worth dying for: We have lost the sense of being a nation. Japan the sovereign state becomes invisible thanks to Article 9. There are only isolated individuals who are what Jean-Paul Sartre discovered existential human beings. But for those who live inextricably linked to the state, those who pay taxes, those who have made a fortune or at least a small family, there is no nation-state for them. Still, for those who are self-reliant and can read French or English fluently, and for those who have many places to escape, such as the intelligentsia, they can get by without a homeland.8

Conservatives’ antipathy to modern individualism led them to search for an authentic constitution identified with a collective self as confirmed by the Japanese value system. At its core, the veneration of the sacred emperor or ‘Kokutai’ was a combined form of popular indoctrination and monotheistic state religion that mimicked Confucianism and Christianity. Nevertheless Japanese conservatives believe that the Kokutai, ranging from the state Shinto to the Imperial Rescript on Education (Kyōiku ni Kansuru Chokugo) taught in prewar public education, is the only thing that could guarantee the authenticity of Japan’s national identity. In 1997, The Japan Council (Nippon Kaigi) was established as a platform to promote interaction between

8



Shinoda (2015), 10.

184  Research handbook on the politics of constitutional law these religious right movements and the amendment politics. 40 per cent of the Diet members and 80 per cent of the cabinet members now belong to it. As a reason for amending or even repealing the 1946 Constitution, the Nippon Kaigi cites the loss of the ‘beautiful tradition, which Japanese had devoted themselves to state-building with a sense of unity as one nation centered on the Tennō’ (Shimazono 2020). 3.1.3 The right-wing movement on social media A movement that is strong enough to lead constitutional politics will make its case to the general public in a visible way. The Japan Conference may have strength to mobilise grassroots supports, but it is more dedicated to take part in power games similar to House of Cards. In this sense, it is the so-called ‘internet right-wingers’ or Neto-uyo in Japanese who are openly spewing xenophobia and hate speech in cyberspace that give a sense of the dynamics of the amendment politics. Japanese researchers are still trying to figure out who these right-wing netizens are. Some journalists believe that these Neto-uyo are estimated to be around one million, and that they are younger, more urban middle class people who rely on social media to exchange information and opinions (Furuya 2016; Sonoda 2016). In support of this theory, a nationwide survey of high school students’ attitudes in 2013 revealed that a strong sense of belonging to Japan is a factor that boosts self-affirmation among usually obedient young students, making them express their own political views even in defiance of authority (Tomoeda 2015). Moreover, in concert with government polls made in 2014–21 revealing that an overwhelming majority – from 64 per cent through 93 per cent – of respondents have negative sentiments towards China and South Korea (Naikakufu 2014–21). Other studies have indicated that Japanese right-wing netizens share a strong tendency to be hostile against the two neighbouring countries in response to visually stimulating events, such as friction in the 2002 Soccer World Cup and the 2010 Japan-China clash in the Senkaku waters territorial dispute (Nakano 2016). The most active among them have come to believe that Japan is despised by China and South Korea because of the pacifist constitution. It is the Neto-uyo who contributed to pro-amendment agenda-setting on social media and other digital platforms. According to Bruce Ackerman’s theory, constitutional politics, which triggers structural changes of a constitution comparable to a constitutional amendment, begins when there is a cooperative relationship between a movement that seeks to change the system based on specific values and a political party that undertakes to implement the political agenda raised by the movement (Ackerman 2019). As Prime Minister and LDP president, Shinzo Abe’s strength lay precisely in his ability to transform the LDP into a movement party that could serve as a receptacle for grassroots revisionist movements. Thus the conservative hardliners, who do not have their own national party to represent their political ideology, have no choice but to support Abe, even though he adopts pragmatism and keeps his distance from their idealistic conservative world. 3.2

The US Influence

3.2.1 ‘Bottle cap’ It is a surprisingly little-known fact that the United States has been a driving force for constitutional change since the new constitution came into effect. When the shadow of the Cold War was deepening, inside the SCAP the anti-communist faction represented by G-2 began

Japan: a case against the amendment politics?  185 to overwhelm the New Dealers, who had led the constitution-making. As early as February 1948, the SCAP was urging the Japanese government to consider revising Article 9 (Koseki 2020). Moreover, during his first visit to Japan in 1954, then-Vice President Richard Nixon told Japanese officials that the US disarmament of Japan in 1946 was a ‘mistake’ (Shaller 1997). At the very least, the United States believed that the Japan-US Security Treaty, revised in 1960, was in violation of Article 9, and that having signed it, Japan would have no choice but to amend the Constitution. However, the Japanese government has accepted the normalisation of the stationing of US forces in Japan and the de facto existence of the Self-Defense Forces as a strategic reserve force for the US military in East Asia – without amending the Constitution (Koseki 2020; Feldman 2015). In 1972, during his historic visit to China, the same Nixon told Mao Zedong and Zhou Enlai that America’s alliance with Japan was in China’s interest since it ‘would keep Japan from pursuing the path of militaristic nationalism.’ By saying so, Nixon meant that the United States alone could decide whether to pull the cap off the Japanese military bottle (Curtis 2000). In fact since 1997, the United States has been successful in getting the Japanese government to accept the proposed revision of the Guidelines for Japan-US Defence Cooperation, in order to involve Japan in any military crisis that might occur on the Korean Peninsula and in the Taiwan Strait (Fisher 1999; Richter 2016). The Guidelines are not legally binding, but the Japan has enacted special statutes to implement them. Prior to the revision of the Guidelines in 2015, new laws were enacted in 2013 to establish a National Security Council (NSC) and to designate information on military and diplomatic matters as state secrets. The former, in particular, is a Japanese version of the American 1947 NSA which concentrates national security power in the Prime Minister with the advice of NSC members independent of the Cabinet. The so-called ‘Japan Handlers’ who speak for the interest of US security community had been telling the Japanese government that the United States would not share classified information with Japan without such a system legalising the national security state, and the speedy enactment of these statutes under the Abe administration satisfied their demand.9 However, the statutory authorisation of ‘national security power’ that is not mentioned in the postwar constitution, and vesting it in the hand of the Prime Minister as unitary executive, is considered violation not only of Article 9, but also of various provisions of the Constitution that stipulate that the PM should act through the Cabinet as a collegial body. 3.2.2 America as new Kokutai? The Japanese Supreme Court’s stance on the Japan-US Security Treaty highlights the problem raised by John Dower, an American historian, that postwar Japan was only guaranteed ‘subordinate independence’ by the United States (Dower 2014). In 1959, before overturning a lower court ruling that found the Japan-US Security Treaty violates Article 9, Kōtarō Tanaka, who was then Chief Justice of the Supreme Court, held a secret meeting with the US ambassador in Tokyo and promised that there would be no situation that would embarrass the United States (Kyōdō News 2008). Soon after the event, the Court declared in in its Sunagawa decision that the treaty would not be strike down unless it is ‘seemingly and unambiguously unconstitu In general, Japan Handlers see Japan, South Korea and Taiwan as important pawns in the US pivot to China. Among them Richard Armitage, who was the Deputy Secretary of State in the Bush administration, had long called for a Japanese version of NSC. See McCormack (2014); Nakanishi (2015). 9

186  Research handbook on the politics of constitutional law tional and invalid’.10 The Supreme Court has never found such violations since then, though a 2008 appellate court ruling indicated that it might be the case when it held that the Air SDF’s transportation of the US and other coalition forces during the Iraq War violates Article 9.11 This is, however, tantamount to the Japanese judiciary’s own admission that the Japan-US security regime preempts the pacifist constitution. In Sunagawa, the Court stated that the constitutionality of the US-Japan security regime ‘is left to the judgment of the Diet and ultimately the sovereign people’. And the people, as expressed in elections and polls, wants Article 9 and the Security Treaty to be compatible. Even in 2014, in the midst of Abe’s amendment politics, polls showed that more than 75 per cent of Japanese supported both Article 9 and the Japan-US alliance.12 How should we explain this contradiction? Political scientist Satoshi Shirai argues that it is because the United States which has replaced the emperor as the new Kokutai after Japan’s defeat. According to Shirai, the American victory turned Japan into its vassal state; Japanese politicians serve the United States as collaborators, just as they once served the emperor as advisors. Shirai then points to the collapse of postwar Kokutai, running from the early 1990s until the present. In this time of crises, the right-wing movements that flourished under the US-Japan alliance seem to be further idolising the Americans as their acting emperor (Shirai 2018). Shirai’s argument may be too radical. However, it is significant in that it clarifies a Japanese dual system of norms, which has been a problem for some Japanese scholars. The prewar Kokutai which was accepted by ordinary people as a ‘moral and spiritual organization’ coexisted with a limited constitutionalism, but finally transformed it to fit for the wartime fascism. In a similar way, the popular support for Article 9 hides the reality of Japan’s remilitarisation under the Japan-US security regime that constitutes a state of exception. At the same time, however, the existence of the invisible constitution itself exerts a force to change the visible constitution to suit it. 3.2.3 Obama-Abe cooperation: another Hegelian ‘trick of reason’? President Barack Obama endorsed Abe’s amendment politics, which was seemingly on the opposite side of the political spectrum. In the summer of 2015, the Abe administration pushed through legislation to allow Japan to exercise its right to collective self-defence, which provoked strong opposition in Japan, and the Obama administration gave its blessing to it. Obama has been said to have two faces: a loving idealist and a ruthless realist. Obama the realist believed that it was in the US’ interest for Japan to have a government willing to amend its constitution to be a national security state in the wake of China rise (Smith 2015). To be sure, Obama prevented Abe from overturning the Japanese government’s official position on war responsibility and the comfort women issue. But he did so in order to build Japan-South Korea cooperation against China and North Korea. During his visit to Japan for the G7 Summit in 2016, Obama’s Janus-faced policy towards Abe exposed its vulnerability. Obama overlooked Abe’s stunt to make it look like all of G7 leaders paid respect to the Ise

Saikō Saibanshō [Sup. Ct.] Dec. 16, 1959, Shō 34 (a) no. 710, 13 Keishū 3225. Nagoya Kōtō Saibanshō [Nagoya High Ct.] April 17, 2008, Hei 18 (ne) no. 499, 2056 Hanji 74 (Japan). See also Hamilton (2010). 12 Polls by NHK and Cabinet Office in 2014 showed the same trend. See Koseki (2020). 10 11

Japan: a case against the amendment politics?  187 Grand Shrine, a symbol of Shinto nationalism,13 while he simply hugged an A-Bomb victim in Hiroshima without apologising. As for Obama, he may have intended to take into account the long-repressed sense of victimisation among Japanese conservatives in order to strengthen the alliance. But, in light of the judicial refusal to find constitutional violations in the Prime Minister’s non-coercive religious speech sponsoring State Shinto, Obama’s actions had effect of justifying the interpretive change of the Separation Clause of Article 20, and strengthening pro-Abe revisionists’ claim for constitutional amendments that redress the evil of ‘imposed constitution’ done to the ‘ethnic Japanese religion’.14 3.3

Shinzo Abe and the 2012 System

3.3.1 Movement Prime Minister Shinzo Abe appeared on the political stage as one of the conservative princelings. But it is no coincidence that the crown prince who admired the Bush-Cheney type of executive rule became a presidential PM and brought various right-leaning movements together as seen in the modern GOP. Beyond his personal desire to imitate Nobusuke Kishi, former PM and Abe’s grandfather, and to fulfill Kishi’s long-cherished wish of changing the constitution, he had a sense of mission that came from his awareness of being affiliated with the Chōshū clique. Political and military elite from Yamaguchi Prefecture formed the powerful faction, which accomplished the Meiji Restoration and led the prewar state-building. It was this background that drove Abe to historical revisionism denying Japan’s imperialist and racist past (Harris 2020). He was one of the politicians who led the opposition to the establishment consensus of the 1990s – ‘reflection and engagement’ that improved relations with China and South Korea were a prerequisite for Japan to play a leading role in an interdependent global society. At the same time, Abe was the first Prime Minister who had the good fortune to be able to promote his revisionist agenda on constitution and history with the support of right-wing movements and, among other things, the tacit approval of the United States (Ignatius 2020). Institutional factors also helped Abe to seize the constitutional moment. First, his predecessors, especially Yasuhiro Nakasone and Junichiro Koizumi, had already been promoting policies to ‘freshen’ the restorative nationalism through neoliberalism. The privatisation and deregulation that began in the 1980s, mimicking the ‘conservative revolution’ of Reagan and Thatcher, has effectively weakened the social foundations of the left and the liberals, including unions, citizen groups and universities. Then, the introduction of single-member district system through electoral reform pushed by Ichiro Ozawa in the 1990s made it easier for the government to keep leftist parties out of the political process and gain the supermajority needed to amend the Constitution. Finally, a series of reforms emphasising the concentration of power in the Prime Minister’s office and ‘political leadership’ gave the Prime Minister, who In an interview with Asahi Shimbun, Susumu Shimazono, a well-known expert in religious studies, raised the issue of the conflict between G7 leaders’ Ise visit which was intended to impress the revival of State Shinto, and the constitutional law of religious neutrality. See Yutaka (2017). 14 In upholding the government’s cooperation with a former military shrine to make a deity out of a SDF member who died in the line of duty, the Court stated that a government official’s religious activity which violates the separation of religion and state prescribed in para 3 of Article 20 of the Constitution ‘should not necessarily be deemed unlawful in relation to individuals unless such an activity directly infringes upon their religious freedom as guaranteed by the Constitution’. Saikō Saibanshō [Sup. Ct.] June 1, 1988, Shō 57 (o) no. 902, 42 Minshū 277. 13

188  Research handbook on the politics of constitutional law also serves as LDP president, the powerful authority needed to promote right-wing activists and enforce the movement’s agenda. 3.3.2 A system of electoralism and abusive constitutionalism During his first administration (2006–2007), Abe was already on the verge of breaking away from the postwar regime. Within a year, he succeeded in amending the Basic Education Law to remove the modern individualism-based language from its preamble, and in legislating a referendum law that had long been opposed by other political parties. Since his return to power in December 2012, Abe had taken advantage of the supermajority that the LDP-Komeito coalition has gained, a requirement for the Diet to initiate amendments, to build what political scientist Koichi Nakano describes as ‘the 2012 system’ (Nakano 2020). This conceptualisation reminds us how a movement Prime Minister, within the power that unites the government and the ruling party, sought to make amendment politics his own. In other words, the 2012 system corresponds to abusive, or even authoritarian constitutionalism that has damaged the rule of law and democratic accountability (Nakano 2020; Yamamoto 2019). The most important of these were the arbitrary exercise of the Cabinet’s power to dissolve the House of Representatives and the deliberate non-compliance with the obligation to convene extraordinary Diet sessions, both of which are consequences of electoralism. Article 53 of the Constitution states that the Cabinet must determine on such convocation when ‘a quarter or more of the total members of either House makes the demand’. Though the constitution does not specify a deadline for the cabinet to react, a long-established parliamentary consensus requires that the cabinet convene extraordinary sessions within a reasonable period. Throughout Abe’s premiership, the opposition had demanded such convocation for several times, amid calls for withdrawal of controversial bills and investigation of PM’s scandals. However, the administration simply ignored these requests.

4.

SETBACK OR A NEW NORMAL?

4.1

Limits of movement politics

4.1.1 Komeito The constitutional movement first ran into the external and internal limitations of the movement itself. Prime Minister Abe dismissed the 1946 Constitution as ‘disgusting’. In July 2013, Deputy Prime Minister Tarō Asō also suggested that the LDP emulate the wisdom of the Nazis who destroyed the Weimar Constitution, therefore irritating Jewish rights group.15 This blatant complicity in the right-wing movement made it difficult for Abe to win the support of other major political parties for constitutional amendment. This is because the customary constitutional law requires LDP to propose a constitutional amendment with the consent not only of the Komeito but also of the largest opposition party – which is now the Constitutional Democratic Party. The establishment parties are not opposed to constitutional amendment in general, but they found it hard to sympathise with Abe’s reactionary vision of constitution. Asō reportedly told the audience at a right-wing rally: ‘The German Weimar Constitution changed, without being noticed, to the Nazi German constitution. Why don’t we learn from their tactics?’. See DeHart (2013). 15

Japan: a case against the amendment politics?  189 The Komeito Party has worked as LDP counterbalance more than the opposition and LDP factions. Abe have been able to use their strong grassroots popularity as the leverage to control the party. However, this strategy is far less workable with the Komeito since the PM’s personal popularity lends it only marginal benefits. This is partly because the Komeito was a movement party electorally representing Soka Gakkai (SG), one of well-organised Nichiren Buddhist schools and its vote-mobilisation ability is highly constant (Mishima 2019). Like other Japanese ‘new religions’, the SG was a creature of postwar democracy with its contradiction of putting social authoritarianism and pacifism together. In particular, the women’s department of SG has been an enthusiastic supporter of Article 9 and has restrained the Komeito leadership from siding with LDP’s hawkish position. Consequently, Abe had to be more attentive to Komeito demands. In fact after 2014, Abe abandoned the idea of amending the procedures for amending the Constitution set forth in Article 96, which had been opposed by Komeito and the mainstream media on grounds of anti-constitutionalism. He then moved to pursue an ‘interpretive amendment’ to Article 9 (Albert 2019). In his final years as PM, Abe effectively withdrew the 2012 draft and agreed to leave the issue to be debated in the Constitutional Review Committee of the two Houses of the Diet. 4.1.2 Countermovement The revisionist movement also alarmed the media and activated the counter-movement by liberal and progressive groups. This, in turn, had the effect of greatly reducing the momentum of the revisionist movement. The most representative countermovement against Abe’s amendment politics was the protest demonstrations in front of the Diet by students and citizens against the 2015 security law. This movement is reminiscent of the 1960 Anpō protests in that it gained support by opposing the passage of highly controversial legislation without public debate. Genealogically, however, it is important to note the continuity with new citizen movements, such as the anti-nuclear demonstrations after 311 and the counter speech against the far-right spreading hate speech targeting ethnic Koreans in Japan on the streets and social media. In particular, the young people who joined the Students Emergency Action for Liberal Democracy (SEALDs) contributed greatly to the visibility of the movement in the public sphere. They were aware of SNS democracy movements that took place around the world in the 2010s (Ching 2019). But unlike those movements that usually ended up with civil disobedience and violent clashes, they operated in a birdcage in which the law-and-order policing framed freedom of assembly and associational speech. Through rapping, chanting, placards and other visual arts, the 2015 movement questioned whether Japanese society remained the same sovereign people who ‘firmly establish’ the pacifist constitution in 1946. To be sure, the countermovement failed to achieve its goal of abolishing the security legislation. However, it succeeded instead in forcing the opposition parties to join a strategic alliance against constitutional change. And most importantly, it led to a majority of public opinion reacting negatively to any attempt to amend the Constitution under the Abe administration. As criticised by political scientist Takashi Mikuriya, Abe’s amendment proposal was not accepted by Japanese voters because they began to realise its deception of using the future-oriented appearance to hide a return to the prewar value (Asahi Shimbun 2021b).

190  Research handbook on the politics of constitutional law 4.2

Abusive Constitutionalism

4.2.1 Skipping democratic accountability Abe’s abusive constitutionalism also greatly undermined the persuasiveness of constitutional amendments. The Abe cabinet refused to convene the Diet as requested by the opposition parties pursuant to Article 53 of the Constitution despite the fact that it contradicts with the LDP-proposed amendment to the same Article stipulating that when the demand is made, the cabinet must convene the Diet within 20 days. Abe refused to abide by even his own party’s proposed constitutional amendment and refused to explain why. Takashi Mikuriya explains the cycle created by Abe of avoiding democratic accountability through electoralism: ‘Abe put the election first, and as long as he wins the election, anything goes. He will win even if he doesn’t have to explain. If he wins, he will stop explaining more and more. He no longer needs to convince everyone in the Diet to implement his policies, and the weight of the Diet has disappeared’ (Asahi Shimbun 2021b). The people were dismayed to learn that Abe only wanted to break the taboo of the Constitution as a code of conduct binding on power, rather than change it to something based on conservative values that he could follow. In 2019, as the Abe administration neared its end, various polls showed that the majority of voters considered the Prime Minister not trustworthy. This persistent distrust of the Prime Minister’s character also works against constitutional amendment. 4.2.2 Constitutional under-enforcement by courts Moreover, the judicial under-enforcement of the Constitution also helps inactivating the amendment politics. The lower courts have rejected to review the 2015 security law by dismissing most of related lawsuits for lack of standing. At the same year, the Supreme Court refused to strike down a Civil Code provision stipulating compulsory same-surname for married couples, which was alleged violation of constitutional rights to individual dignity and gender equality in marriage and family.16 By defining the family as ‘a natural and fundamental collective unit in society’, the high court tried to appease the conservative anxiety that the postwar constitution is destroying the traditional Japanese family system where wives are expected to follow the surname of their husbands (Higuchi 2021). In terms of Article 53, district courts in Okinawa and Okayama held that the Cabinet has a ‘legal obligation’ to respond to such a request for an extraordinary Diet session within a reasonable period of time and pointed out that the Cabinet’s failure to do so could be a violation of the Constitution. However, the two courts did not impose injunctive relief against the Cabinet. Yasuo Hasebe, a constitutional scholar, criticised judges for turning a blind eye to the fact that the Cabinet did not take any action for 98 days (Asahi Shimbun 2021a). To be sure, some studies point out that behind the Court’s reluctance to correct the PM’s abuses of power is a precaution against the administration intervening in the appointment of Supreme Court justices in the same way it does with other independent agencies. But the Japanese judiciary has been part of a conservative system in that it trusts in a seemingly pluralistic democracy filtered through the media and in-door political process rather than the competing diversity of the people. As constitutional scholar Yasuhiro Okudaira observed, the

Saikō Saibanshō [Sup. Ct.] Dec. 16, 2015, Hei 26 (O) no. 1023, 69 Minshū 2586.

16

Japan: a case against the amendment politics?  191 Supreme Court is very much aware that it is the bearer of an order that guides an ignorant people who are naïve and easily agitated (Okudaira 2003). On the other hand, the Court’s hesitation to adopt progressive interpretations of the Constitution which may trigger conservative backlash paradoxically hinders constitutional amendments. 4.3

Constitutional Change without Amendment?

4.3.1 New normal under PM Suga: the SCJ controversy Abe’s ambition to constitutional amendment was awkwardly stopped by an unexpected public health emergency. Yoshihide Suga, the powerful cabinet secretary general under Abe, became the new Prime Minister amid the COVID-19 pandemic. Suga had no choice but to continue with his predecessor’s revisionist agenda as long as he relied on Abe’s support. But unlike Abe, Suga showed little interest in using the crisis to amend the constitution or to invoke emergency powers. Instead, he was more focused on normalising the abusive constitutionalism, that is, a ‘new normal’ that confirms the constitutional transformation in the Abe years. Right after he assumed the office of Prime Minister, Suga alarmed his liberal opponents by attacking the Science Council of Japan (SCJ), a symbol of academic freedom and independence. Founded in 1949 under the occupation, the so-called ‘Congress of Scientists’ is one of public institutions functioning as ‘insurance’ for postwar democratisation by SCAP. Thus the right-wing has been calling for SCJ’s dismantlement, as part of its culture war against the imposed constitution. The statute establishing SCJ require that the Prime Minister exercise his appointment power based on SCJ’s recommendation. However, under the Abe years, the government began to pressure SCJ not to include anyone who the government disfavours on the SCJ’s list of recommendation. In secret meetings with the SCJ leadership, the cabinet secretariat argued that SCJ’s recommendation is not binding and the Prime Minister can act on his own judgement, thus creating a collision with its past interpretation that the Prime Minister’s power is nominal. A senior official from the public security police took issue with the fact that some of the elected scholars had endorsed the 2015 movement against the security legislation. In September 2020, the new Prime Minister refused to appoint six of newly elected SCJ members (Normile 2021). If the ‘reinterpretation’ is followed, academic autonomy based on Article 26 of the Constitution will become almost meaningless. 4.3.2 Normalising the abnormal: rigged pandemic responses Dealing with emergencies has always been the most important theme in amendment politics. In fact, LDP has reintroduced in 2017 a pared-down version of its 2012 draft that focuses on the PM’s emergency powers (Mainichi Shimbun 2017). However, both Suga and the ruling coalition were negative not only on lockdowns and shutdowns, but also on PCR testing, quarantine of infected persons, and all the other rigorous measures that give the atmosphere of an emergency. To be sure, in dealing with the pandemic, the mainstream comparative constitutional law prefers to rely on statutory authorisation rather than emergency power. But what makes Japan’s COVID-19 measures stand out is that they circumvent the regulatory scheme provided by the Constitution, which states that rights can be restricted by statutes on the grounds of public welfare. Instead, both national and local governments prefer the old statecraft of indirect coercion. For instance, the notorious administrative ‘guidance’ and

192  Research handbook on the politics of constitutional law disincentives developed under the 1940 system have been used to pressure eateries that do not comply with stricter COVID-19 regulations (Repeta 2021). The reason PM Suga appeared inept is that, unlike military crises, public health emergencies do not benefit his administration but rather harm it. Large-scale testing and quarantine require an efficient government and distribution of powers based on meritocracy. However, the stability of postwar Japan is largely due to a small government, wary of the panic-stricken people, able to commandeer the authoritarian corporate regime as its local branches. The bearers of the regime are intermediary entities, which support the conservative parties as long as their vested interests are protected. These intermediary groups are so obsessed with pre-war organisational principles and culture that they are slow to digitalise and cannot withstand strict measures or remote work. On the other hand, inside the administration public health bureaucrats fear the loss of their regulatory authority and monopoly of resources, and politicians are reluctant to adopt a ‘regulation and compensation’ policy which they cannot expect any partisan return. As a result, there is no choice but to resort to an equivalence of the pre-war spiritual mobilisation movement that emphasises voluntary subordination through the disciplinary power in Michel Foucault’s conception. Under this dualistic system of norms, it is unlikely that constitutional revision can address the pandemic. 4.3.3 The future of the 2012 system Of course, this is not to say that the amendment politics did not make progress under Suga. In June 2021, the Diet passed a bill to amend procedures for a national referendum. The amended national referendum law makes it easier for citizens to vote, allowing them to cast their ballots at places such as train stations and shopping complexes. LDP and Constitutional Democratic Party (CDP), the biggest two parties, agreed to add a supplementary provision requiring that within three years after the law comes into effect, the Diet should reconsider regulating donations, TV and radio advertising during referendum campaign (Kyōdō 2021). The 1946 constitution has surprisingly survived the challenges it has faced under the 2012 system. But whether it will endure in the next decade is still unknown. At his first summit with the US President Biden in April 2021, PM Suga gave the impression to the international community that Japan would intervene in a possible military crisis in the Taiwan Strait by exercising the country’s right to collective self-defence (Soeya 2021). And then in October 2021, behind the dizzying political drama of Fumio Kishida’s taking office as PM after Suga’s sudden resignation, lies Abe’s ambition to continue manipulating the amendment politics as a kingmaker. However, even under an Article 9 that has been reinterpreted since 2014, a duel-like war to stop China’s rise is unthinkable due to the constitutional ban on the use of force on foreign territory.17 The failure of abusive constitutionalism visualised in the pandemic responses also created an impasse for Abe and his far-right allies to proceed their revisionist movement. Not to mention that from a ‘Bread and Circus’ perspective, revising the consti-

17 In addition to the constitutional prohibition against ‘right of collective self-defense’, Article 9 also denies Japan’s right of belligerency. Its normative meaning is under dispute, but the Japanese government has interpreted the Peace article as banning Japan from exercising rights based on law of war. See Bōeishō (2021); Hasebe (2017). In fact, in the most seemingly legitimate case of rescuing Japanese abroad, the SDF dispatched to Kabul airport was prohibited by its enabling statute from fighting. See Mainichi Shimbun (2021).

Japan: a case against the amendment politics?  193 tution is a far less attractive spectacle than the already discredited Tokyo Olympic Games. Nevertheless as Shūichi Katō had seen through, one thing is certain that the revisionist movement will continue to cry out for a constitutional amendment based on retro-style nationalism, while deepening what Étienne de La Boétie called ‘voluntary servitude’ to the United States.

5.

COMPARATIVE OBSERVATIONS FOR FURTHER STUDIES

The Japanese experience reminds comparative constitutional lawyers of the vital significance of a boring fact that constitutional institutions have unexpected outcomes in interaction with the political ecosystem in which they are adopted. From a comparative reading of Article 96, the bicameral two-thirds supermajority is not a particularly stringent requirement for initiating constitutional referendum. However, by reinforcing the influence of Japan’s consensus-oriented political culture, it ultimately makes constitutional amendment extremely difficult. Thus, when formal constitutional amendment is blocked by electoral politics, conservative governments turn to informal mechanisms of interpretation. In other words, the role played by the courts in the US was taken by the Cabinet Legislation Bureau in Japan, which is independent of partisan politics. On the other hand, unlike its East Asian counterparts reactive to social change (Yeh & Chang 2011), the Japanese high court prefers to act as part of the government rather than to promote state building that conformed to liberal-democratic values stipulated in the postwar constitution. As Yoichi Higuchi points out, Japan’s constitutional adjudication is not the case of judicial passivism, but of judicial positivism in the sense that the judiciary actively legitimise government policies (Higuchi 2017). Party politics, about which the Japanese constitution says nothing, is another mainstay that shapes constitutional politics. One of the distinguishing features of Japan compared to other western democracies is its unbalanced ‘two-party’ politics run by a dominant conservative party (LDP) and a less-dominant central left (the Socialist Party and CDJ), accompanied with small parties including Komeito and a relatively active communist party (JCP). The bicameralism and the multi-seat constituencies under the 1955 system created a coalition of factions within the LDP. These factions ranging from right-wing to liberal fought each other, and the pragmatic factions supported the opposition against constitutional amendment pushed by the right-wing factions. On the other hand, the Socialist Party had never put up candidates for more than half of the seats in the Diet after 1960, and was content to secure a third of the parliamentary seats enough to block constitutional revision. This de facto coalition, which allowed even the opposition parties to take share in the political process, was regarded by constitutional scholars as ‘a democracy suited to Japan’s reality’ (Higuchi 2017). The adoption of parallel voting that combines first-past-the-post voting with party-list proportional representation, and West Wing type presidential premiership shifted the axis of constitutional politics decisively to the right. Under the 2012 system, Abe in particular is said to have aimed to transform the LDP on the model of the modern Republican Party (Nakakita 2020). However, the single-member districting that facilitates Abe’s revisionist movement also brought a paradox--LDP cannot win in competitive constituencies without the support of the Komeito. Similarly, the CDJ cannot maintain its position as main opposition party without strategic alliance with the JCP. Thus, unlike the Trumpist groups making the GOP increasingly anti-constitutional, in Japan the influential small parties have kept the LDP infra-constitutional.

194  Research handbook on the politics of constitutional law

6. CONCLUSION The Japanese constitutional lawyers have been trying to save the 1946 constitution from the amendment politics by their own constitutional borrowing, namely, the ‘big-C’ Constitutionalism or methodological universalism in comparative constitutional law, which originated in the Enlightenment philosophy of the eighteenth and nineteenth centuries and was renewed by the current global neoliberalism. However, even ignoring its discriminatory aspect, the ‘big-C’ is problematic in two ways. First, the anti-constitutional argument cannot logically prevent ‘bad amendments’. The liberal account of constitutionalism assumes a Habermasian civil society as distinguished from the state and the market, but unlike Habermas, it does not intend to secure the supremacy of civil society through participation in the state and the market. Rather, it seeks only to maintain a private sphere of non-political, thus spiritual freedom, based on the assumption of political and economic oligarchic control by the conservatives. Japanese liberals have no faith in the ‘democratic political process’, which is why many of them oppose the referendum provided for in the Constitution itself. The apolitical tendencies of liberals make it difficult for them to present persuasive counterarguments to their realist colleagues. The latter is comfortable with global constitutionalism that responds to the market state and national security state, and does not consider neoliberal constitutional amendments to be bad amendments. Second, the constitutionalist account just does not fit with the social recognition of Japanese nation-building. Charles Taylor has noted that the people’s rebellion against power is a very different social imaginary from the people’s organisation of their own power based on modern individualism (Taylor 2004). To be sure, the 1946 constitution as an elite construction does give lawyers the civic narrative they need to justify their Article 13-based constitutionalism, borrowing from revolutionary constitutions (Ackerman 2019). But it cannot take the place of civil revolution. Except for Article 9, affirming one’s dignity and capacity through constitutional democracy and human rights is simply not, in Japan, the ‘common understanding that makes possible common practices and a widely shared sense of legitimacy’.18 Otherwise, it is impossible to understand the contradiction why so many Japanese intellectuals seem to be wary of the emperor as an institution that contributes to what Robert Bellah called ‘the moral organization of inequality’ (Bellah 2011), but on the other hand depending on him as a sage who resists Abe’s abusive constitutionalism. In relation to this, Ichiro Nitta, an outstanding legal historian, has made the following astute observation: Based on the ideas introduced by modern European civilisation, different narratives have been presented to counter the Tennō’s narrative. Especially after World War II … In the political arena, there have been attempts to cut off the history of the past and to tell the origins of society through the narrative of the Constitution. However, none of these narratives have come to fruition as a legitimate common understanding of the origins of people and society, and it seems that the origins of the local communities encompassing many of Japanese have been left untouched without being fundamentally reexamined.19

In sum, Japanese society and culture, which tend to relentlessly seek compromise and consensus, paradoxically make it difficult to amend the postwar constitution, even as they express 18 19

Taylor (2014), 23. Nitta (2009), 314–15.

Japan: a case against the amendment politics?  195 confusion and resistance to its values. If we cannot recognise the constitutional sentiment caused by this misalignment, we will not be able to capture the political dynamism that promotes or, conversely, deters constitutional revision (Sajó 2023).

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196  Research handbook on the politics of constitutional law Henmi, Yō & Noam Chomsky. ‘Kongenteki-na hansen-heiwa wo kataru (Let’s talk about fundamental anti-war and peace)’ in Chikara Suzuki trans., Media Kontororu (Media Control) (Shueisha, 2003). Higuchi, Yoichi. Yokushi-ryoku toshite no Kenpō (The Constitution as Deterrence) (Iwanami Shoten, 2017). Higuchi, Yoich. Kenpō (Constitutional Law) (Keiso Shobo, 2021). Ignatius, David. ‘Shinzo Abe was a better ally than we deserved’ (Washington Post, 29 August 2020), https://​www​.washingtonpost​.com/​opinions/​2020/​08/​29/​shinzo​-abe​-better​-ally​-than​-we​-deserved/​. Kades, Charles. (1989). ‘The American Role in Revising Japan’s Imperial Constitution,’ Political Science Quarterly 104: 215–47. Katō, Shūichi & Yoichi Higuchi. Jidai wo yomu (Understanding the times we are living) (Shogakukan, 1995). Katayama, Morihide. Mikan no fashizumu (Fascism Unfinished) (Shinchōsha, 2012). Koseki, Shōichi. The Birth of Japan’s Postwar Constitution (Perseus, 1998). Koseki, Shōichi. Taibei Jūzoku no Kōzō (The Structure of Dependence on the United States) (Misuzu Shobo, 2020). ‘U.S. coerced court in 1959 base case’ (Kyodo News, 1 May 2008), https://​www​.japantimes​.co​.jp/​news/​ 2008/​05/​01/​national/​history/​u​-s​-coerced​-court​-in​-59​-base​-case/​. ‘Japan enacts revised referendum law in constitutional amendment push’ (Kyodo News, 11 June 2021), https://​english​.kyodonews​.net/​news/​2021/​06/​dc855d516e11​-japan​-enacts​-revised​-referendum​-law​-in​ -constitutional​-amendment​-push​.html. LDP Press Release, ‘LDP announces a new draft Constitution for Japan’ (7 May 2012), https://​www​ .jimin​.jp/​english/​news/​117099​.html. Levinson, Sanford. ‘On the Priority that Publius Gives to National Security in Constitutional Design: Reflections on the Longevity of Article 9 of the Japanese Constitution’ in Richard Albert, Xenophon Contiades & Alkmene Fotiadou (eds) The Law and Legitimacy of Imposed Constitutions (Routledge, 2019). ‘Differences emerge within LDP over specific items in constitutional revisions’ (Mainichi Shimbun, 2 August 2017), https://​mainichi​.jp/​english/​articles/​20170802/​p2a/​00m/​0na/​021000c. ‘Safety concern aired as Japan rushes to evacuate nationals from Kabul’ (Mainichi Shimbun, 25 August 2021), https://​mainichi​.jp/​english/​articles/​20210825/​p2g/​00m/​0na/​013000c. McCormack, Gavan. (2014). ‘Japan’s “Positive Pacifism”: Issues of Historical Memory in Contemporary Foreign Policy,’ Brown Journal of World Affairs 20: 73–91. McElwain, Kenneth Mori & Christian G. Winkler. (2015). ‘What’s Unique about the Japanese Constitution? A Comparative and Historical Analysis,’ Journal of Japanese Studies 41: 249–80. Mishima, Kō. (2019). ‘The Presidentialization of Japan’s LDP Politics: Analyzing Its Causes, Limits, and Perils,’ World Affairs 182: 97–123. Nakakita, Kōji. The Liberal Democratic Party of Japan: The Realities of ‘Power’ (Routledge, 2020). Nakanishi, Hiroshi. (2015). ‘Reorienting Japan? Security Transformation Under the Second Abe Cabinet,’ Asian Perspective 39: 405–21. Nakano, Koichi, ‘Contemporary Political Dynamics of Japanese Nationalism’ (2016), The Asian-Pacific Journal 14–2: 1–13. Nakano, Koichi. ‘Neoliberal Turn of State Conservatism in Japan: from Bureaucratic to Corporatist Authoritarian Legality’ in Weitseng Chen & Hualing Fu (eds) Authoritarian Legality in Asia: Formation, Development and Transition (Cambridge University Press, 2020). Naikakufu (Cabinet Office of Japan). Gaikō ni kansuru Yoron Chōsa (Polls concerning Diplomacy) (2014–21), https://​survey​.gov​-online​.go​.jp/​index​-gai​.html. Nitta, Ichiro. Taiheiki no jidai (Time of Taiheiki) (Kodansha, 2001). Noguchi, Yukio. (1998). ‘The 1940 System: Japan under the Wartime Economy,’ American Economic Review 88: 404–16. Normile, Dennis. ‘Japan’s top science advice group battles government over independence and identity’ (Science, 7 January 2021), https://​www​.science​.org/​news/​2021/​01/​japan​-s​-top​-science​-advice​-group​ -battles​-government​-over​-independence​-and​-identity. Okudaira, Yasuhiro. (1990). ‘Forty Years of the Constitution and Its Various Influences: Japanese, American and European,’ Law and Contemporary Problems 53: 17–49. Okudaira, Yasuhiro. Kenpō no Sōzōryoku (Constitutional Imagination) (Nippon-Hyōronsha, 2003).

Japan: a case against the amendment politics?  197 Oguma, Eiji. (2021). ‘An Indigenized Sociology in a Dual-structure Society: An introduction to the Special Issue on Sociological Studies in Japan,’ International Sociology 36: 143–47. Ōtake, Hideo. ‘Two Contrasting Constitutions in the Postwar World: The Making of the Japanese and the West German Constitutions’ in Yoichi Higuchi (ed) Five Decades of Constitutionalism in Japanese Society (University of Tokyo Press, 2001). Repeta, Lawrence. (2013). ‘Japan’s Democracy at Risk – The LDP’s Ten Most Dangerous Proposals for Constitutional Change,’ The Asian-Pacific Journal 11/28: 1–12. Repeta, Lawrence. ‘The coronavirus and Japan’s Constitution’ (Japan Times, 14 April 2021), https://​ www​.japantimes​.co​.jp/​opinion/​2020/​04/​14/​commentary/​japan​-commentary/​coronavirus​-japans​ -constitution/​. Richter, Jeffrey, P. (2016). ‘Japan’s Reinterpretation of Article 9: A Pyrrhic Victory for American Foreign Policy?,’ Iowa Law Review 101: 1223–62. Sajó, András, ‘Emotions in Constitutional Law’ in M. Tushnet and D. Kochenov (eds), Research Handbook on the Politics of Constitutional Law (Edward Elgar, 2023). Samuels, Richard, J. (2007). ‘Securing Japan: The Current Discourse,’ Journal of Japanese Studies 33: 125–52. Satō, Kōji, Rikken Shugi ni tsuite (On Constitutionalism) (Sayūsha, 2015). Scheppele, Kim Lane. ‘On New Autocrats, Imitation and Flattery’ (Balkinization, 24 September 2021), https://​balkin​.blogspot​.com/​2021/​09/​on​-new​-autocrats​-imitation​-and​-flattery​.html. Shaller, Michael. Altered States: The United States and Japan since the Occupation (Oxford University Press, 1997). Shimazono, Susumu. Shinsei Tenno no yukue (The Future of Sacred Emperor) (Chikuma Shobo, 2019). Shinoda, Masahiro. ‘Sengo Nanajūnen: Zoruge no baai’ (Seventy years after the War: The case of Spy Sorge), in Sengo Nanajūnen kataru tou (Seventy years after the War: Speak and ask) (Japan National Press Club ed., 2015). Shirai, Satoshi. Kokutai-ron (On Kokutai) (Shueisha, 2018). Smith, Sheila, A. ‘President Obama and Japan-South Korean Relations’ in Gilbert Rozman (ed) Asia’s Alliance Triangle (Palgrave Macmillan, 2015). Soeya, Yoshihide. ‘What the Biden–Suga summit means for the region’ (East Asia Forum, 23 April 2021), https://​www​.eastasiaforum​.org/​2021/​04/​23/​what​-the​-biden​-suga​-summit​-means​-for​-the​ -region/​. Sonoda, Koji. ‘The Quest to Revise Japan’s Constitution’ (The Diplomat, 2 June 2016), https://​ thediplomat​.com/​2016/​06/​the​-quest​-to​-revise​-japans​-constitution/​. ‘Takashi Mikuriya: Politics without Explanation Continues from Abe to Suga’. (2021b), (Asahi Shimbun, 5 July 2021), https://​digital​.asahi​.com/​articles/​ASP7361YNP61USPT00R​.html. Taylor, Charles. Modern Social Imaginaries (Duke University Press, 2004). Tomoeda, Toshio. ‘Hoshuka no susei to seijiteki-taido (Trend toward conservatization and political attitudes)’ in Toshio Tomoeda (ed) Risuku shakai wo ikiru watamonotachi (Japanese youth living in a risk society) (Osaka University Press, 2015). Tushnet, Mark. (2015). ‘Authoritarian Constitutionalism,’ Cornell Law Review 100: 391–462. VOYCE. Draft for the Amendment of the Constitution of Japan (VOYCE trans., 2015), https://​projects​ .iq​.harvard​.edu/​files/​crrp/​files/​ldp​_2012​_draft​_voyce​_eng​.pdf. Yamaguchi, Mari. ‘In Nationalist Move, Japan marks Sovereignty Day’ (San Diego Union Tribunal, 28 April 2013), http://​www​.​sandiegoun​iontribune​.com/​sdut​-in​-nationalist​-move​-japan​-marks​ -sovereignty​-day​-2013apr28​-story​.html. Yamamoto, Hajime. ‘An Authoritarization of Japanese Constitutionalism?’, in Helena Alviar García & Günter Frankenberg (eds) Authoritarian Constitutionalism Comparative Analysis and Critique (Edward Elgar, 2019). Yeh, Jiunn-ron & Wen-cheng Chang. (2011). ‘The Emergence of East Asian Constitutionalism: Features in Comparison,’ The American Journal of Comparative Law 59: 805–39. Yokodaido, Satoshi. (2019). ‘Constitutional stability in Japan not due to popular approval,’ German Law Journal 20: 263–83. Young, Christopher. (2016). ‘War, Peace, and National Security in the Pacific: U.S. and Japanese Geostrategic Constitutionalism, and the Creation of the Japanese Constitution in 1947,’ University of Pennsylvania Asian Law Review 11: 439–69.

198  Research handbook on the politics of constitutional law Yutaka, Shuichi. ‘Yuragu seikyo-bunri’ (Challenged Separation of Religion and State: An interview digital​ .asahi​ .com/​ articles/​ with Susumu Shimazono) (Asahi Shimbun, 9 February 2017), https://​ DA3S12788130​.html​?iref​=​pc​_photo​_gallery​_breadcrumb.

12. The politics of constitutional interpretation Tamas Gyofry

In her confirmation hearing before the Senate Judiciary Committee, US Supreme Court Justice (then-nominee) Amy Coney Barrett was asked about her views on healthcare, election law and abortion rights. She flatly rejected the idea that her political views would colour her judicial work and said, ‘I apply the law, I follow the law. You make the policy.’1 This quote exemplifies succinctly what many judges think (or at least publicly say) about the nature of legal reasoning in general and constitutional interpretation in particular and, therefore, can be called the orthodox view of the legal profession. The orthodox view suggests that there should be an impenetrable wall between law and politics and judges ought to be influenced only by the former. Among social scientists, there is a broad consensus that the orthodox view is untenable. The empirical evidence is overwhelming; we know that judges are subject to extralegal influences, including their political preferences. However, this does not imply that they are simply politicians in robes. While they are influenced by extralegal considerations, these are filtered through and mediated by legal rules and legal concepts and the exercise of discretion is constrained by the professional socialisation of judges (Geyh 2016). Although I will say something on why the orthodox view is incorrect, my primary aim is not to argue for a middle ground between the two extreme positions; this would be a somewhat safe bet. Rather, the purpose of this chapter is to contribute to our understanding of the interplay between law and politics in constitutional interpretation by dissecting the different dimensions of this relationship.

1.

POLITICAL MOTIVATIONS AND POLITICAL ARGUMENTS IN CONSTITUTIONAL INTERPRETATION

We need empirical research to identify what kind of extralegal considerations motivate judges. However, to prove that judges must rely on some kind of extralegal considerations, we need to establish only that legal rules often underdetermine the outcome of judicial decisions, that is, they do not determine a uniquely correct answer.2 The analysis of underdeterminacy will serve as the starting point of my argument, as it will help to identify two important dimensions in the relationship between law and politics. The general causes of underdeterminacy are well-understood in legal theory, but it is worth summarising here why constitutional law is particularly prone to this phenomenon. When judges address substantive constitutional questions, such as whether the decision on assisted suicide is part of the right to private life, or if hate speech is protected by freedom of expression, they have to determine the meaning of certain provisions of their constitutions.



1 2

The Guardian, 14 October 2020. For the distinction between indeterminacy and underdeterminacy, see Solum (1987), 474.

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200  Research handbook on the politics of constitutional law But one cannot determine the meaning of a constitutional provision in general; this meaning is always construed in light of certain interpretive criteria (whether these criteria are articulated or not).3 Therefore, judges are often required to address interpretive as opposed to substantive questions.4 For instance, they have to identify the range of legitimate interpretive criteria, form a view on the relative importance of those criteria and operationalise them before they can be applied. I am not claiming that the application of all interpretive criteria requires judges to make value judgments. Semantic conventions often impose strong external limits on the possible interpretations of a text. For instance, many constitutions have rules about presidential term limits. The Constitution of Kyrgyzstan declares that ‘One and the same person may not be elected President twice’ (Article 67). The Constitution of Latvia specifies that ‘The same person shall not hold office as President for more than eight consecutive years’ (Article 39). The clarity of established linguistic conventions about terms like ‘twice’ or ‘eight years’ often deters even seasoned dictators from trying to remain in power beyond the term limits without amending the constitution.5 In such cases, judges can rely on an intersubjective criterion that is external to and independent of their preferences. However, constitutions often rely on abstract, value-laden terms, like dignity, equality or privacy. When judges interpret such terms, they most often turn to purposive interpretation, but the purpose of such concepts is also contested. As Aileen Kavanagh puts it, interpretive disagreements about the meaning of such concepts are ‘linguistically irresolvable’.6 It is not the case that semantic conventions guide judges in most situations, and run out only exceptionally in a few borderline cases. In this context, the Dworkinian distinction between concepts and conceptions is more illuminating than the Hartian distinction between plain and borderline cases.7 Disagreements also affect the core meaning of such concepts, and judges are required to take sides in the normative debates between the rival conceptions of the concept when they specify or articulate the purpose of such provisions. For the sake of brevity, I illustrate my point with a single example, the concept of human dignity. Although human dignity was mentioned in some constitutions before World War II, its central place in contemporary constitutionalism can hardly be understood without the horrors of that war. In a seminal article on the history of the concept, Christopher McCrudden argues that the idea of human dignity was considered the ‘Holy Grail of human rights’ in the post-war period.8 Human dignity could serve as a basis of consensus because people could agree on it at a surface level, but agreement on the surface was only possible because it accommodated their disagreements at a more concrete level. McCrudden concludes that ‘human dignity is used as

For a more detailed analysis of this idea, see Gyofry (2016), 177–83. One should distinguish between different interpretive criteria and argument types on the one hand and different theories or approaches to constitutional reasoning on the other. An argument type can be preferred by more than one theory of constitutional interpretation and a theory of constitutional interpretation can use more than one interpretive criterion. 4 For the distinction between substantive and interpretive questions, see Barber & Fleming (2007), 5. 5 See the 2020 amendment of Art. 81 to the Constitution of the Russian Federation. 6 Kavanagh (2004), 263. 7 Dworkin (1986), 70–72; Hart (1961), 126–28. 8 McCrudden (2008), 677. 3

The politics of constitutional interpretation  201 a linguistic-symbol that can represent different outlooks’9 and different people with different traditions, values and ideologies could project their own moral outlook on the concept. Consider the case of Manuel Wackenheim v. France, which revolved around a French municipal ban on dwarf-tossing.10 In their arguments, both parties appealed to the value of human dignity. In the interpretation of the French state, dwarf-tossing violates the dignity of those people who participate in that practice, regardless of whether they consented to the practice or not. According to Wackenheim’s interpretation, however, personal autonomy is a central element of human dignity and the state cannot impose its own interpretation of dignity on its citizens. These two interpretations reflect two different conceptions of human dignity, the first relies on a substantive conception about what it means to live a dignified life, whereas the second revolves around the idea of personal autonomy. Although many of our constitutional concepts are less abstract than human dignity, this example illustrates what judges do when they articulate a constitution’s value-laden provisions. In my view, David Robertson’s account captures quite accurately the nature of this exercise. Robertson says that ‘to say that these constitutional review bodies “interpret” the constitution is largely empty. It is easier to think in terms of their trying to answer questions posed to them by others by looking at these documents …. The judges are required to weave the bullet points into a coherent and cohesive ideology for their contemporary world. It is in this sense that constitutional judges are applied political theorists, and their job is unavoidably creative.’11 Furthermore, the prevalence of value-laden concepts is not a bug but a feature in constitutional law. Constitutions do not only create institutions but are also ‘mission statements’ that define the primary values and principles of a political community (King 2013). In addition, as almost all contemporary constitutions are entrenched, they require a considerably broader consensus than the enactment of ordinary laws. In a pluralistic political community, this consensus is limited only to highly abstract concepts but does not extend to the specific interpretations of those concepts, as the example of human dignity has shown above. Therefore, the constitution-making process must abstract away from the details of particular conceptions that would alienate a significant segment of the community and postpone the choice between the rival conceptions. With some exaggeration, it can be said that constitutional interpretation is about making choices that were postponed in the constitution-making process. Another major factor that contributes to the wide discretionary power of judges in constitutional interpretation is the qualified nature of constitutional rights. In many legal contexts, judges treat legal rules as conclusive reasons, that is, if the rule applies to the factual situation, it will determine the outcome of the case. However, the rights-related provisions of constitutional law typically do not behave as conclusive reasons. Although older constitutions usually define rights in unqualified terms, the practice of constitutional adjudication is simply not consistent with the absolutist language of those documents. Constitutions enacted after World War II typically admit either in a general limitation clause or in the regulation of specific rights that rights can be restricted. The implication of this is that in most cases, judges are required to balance constitutional rights against other considerations. Within the confines of this chapter it is impossible to provide a sophisticated analysis of this balancing process and to do justice to the nuanced differences of balancing in different jurisdictions. (Barak 2012; Sweet & Mathews Ibid, 678. Communication No 854/1999, U.N. Doc. CCPR/C/75/D/854/1999 (2002). 11 Robertson (2010), 32–33. 9



10

202  Research handbook on the politics of constitutional law 2019; Tushnet 2018). It suffices to say here that even if this balancing exercise mobilises an increasingly sophisticated doctrinal machinery, this doctrinal machinery structures and channels rather than eliminates the discretionary power of judges. Comparing the weight of constitutional rights to the justification of their restriction inescapably leaves room for the value judgments of judges. I acknowledged above that the application of some interpretive criteria does not require judges to make value judgments. However, even if an interpretive criterion singles out a uniquely correct solution, in every case judges have several interpretive criteria at their disposal. A recent empirical study on comparative constitutional reasoning pointed out that in landmark constitutional cases almost all courts covered by the study utilised more than four different types of arguments, and 10 of the 18 courts utilised six or more types of arguments.12 It is true that many legal systems have some characteristic priority rules and favoured or unfavoured methods.13 However, these priority rules and the specification of favoured and unfavoured methods and sources do not eliminate judicial discretion. Different judges in the same legal system can legitimately follow different priority rules, and even the same judge often follows different methods in different cases. At this point, the objection could be made that my analysis unjustifiably conflates judicial discretion concerning the choice between the different interpretive criteria with judicial discretion concerning substantive value judgments. The freedom of judges to choose between different methodologies and interpretive criteria, so the argument runs, does not imply that they make substantive value judgments about the content of the constitution. As I have emphasised, I consider the distinction between substantive and interpretive questions intelligible and important. However, the plurality of available interpretive criteria makes it possible for a judge to make a decision based on their substantive values and choose the methodology that supports those values. We have no reason to assume that judges will always subordinate their methodological commitments to their substantive value judgments. A judge may consistently follow their methodological approach, even if that leads to decisions that contradict their value judgments. However, it is also possible that the judge will strive for ideological consistency, even if they have to sacrifice methodological consistency. Whether a judge prefers methodological to ideological consistency, or the other way around, depends on the context and should be subject to empirical analysis.14 The reliance of constitutions on value-laden concepts, the defeasibility of human rights provisions and the plurality of legitimate interpretive criteria all contribute to the underdeterminacy of constitutional law. This implies that some nonlegal considerations must necessarily come into play in constitutional interpretation. However, these nonlegal considerations feature in the explanation and justification of judicial decisions somewhat differently. If legal rules underdetermine the outcome of a decision, judges must draw on additional considerations to reach a decision. These considerations will be part of the causal chain that leads to the decision and the explanation of judicial decisions must attempt to account for those considerations. There is a significant body of literature that proves that the political preferences of judges have

Jakab, Dyevre & Itzcovich (2017), 766. For an overview of the favoured methods of some jurisdictions, see Goldsworthy (2006); Jakab, Dyevre & Itzcovich (2017). 14 David Robertson claimed in his study about the House of Lords, for instance, that the judges of that court tended to prefer ideological to methodological consistency. Robertson (1998), 101. 12 13

The politics of constitutional interpretation  203 a special role among these extralegal considerations.15 To conclude, constitutional interpretation is a political activity in the sense that the political preferences of judges are often part of the causal chain that leads to judicial decisions. As far as the justification of judicial decisions is concerned, the underdeterminacy of constitutional law implies that a legal issue cannot be solved simply by evoking the provisions of the constitution, the conclusion will only follow from the constitution if we add further premises to the argument. However, judges do not necessarily articulate the additional premises of their argument and might choose to pretend that the constitution determines the answer. The short pseudo-syllogistic judgments of the French Constitutional Council come close to this ideal.16 But the French style of opinion-writing seems to be an outlier in contemporary constitutional law, and most constitutional courts17 spell out the steps of their reasoning in much more detail. By articulating the premises of their arguments judges make the meaning of the constitution more specific. For instance, interpreting the right to human dignity, courts are typically not content with saying that something is/is not within the scope of the right in question, they also articulate the conception of human dignity that justifies their classification. To use Robertson’s metaphor I alluded to above, they weave the bullet points of the constitution into a coherent ideology. By specifying the meaning of the constitution in this way, judges elevate one possible interpretation of the constitution to authoritative status and exclude other possible interpretations. Choosing between possible answers to contested moral issues on behalf of the political community is a quintessentially political activity (Dahl 1957). I argued in this section that constitutional interpretation is a political activity in two different senses of the word. First, it is political in the sense that judges are often motivated by their political preferences, but it is also political in the sense that in their justification they choose between contested moral alternatives and elevate their choice to authoritative status. Although very often the same consideration will serve both as a motivation and a justificatory reason, we should not conflate these two different aspects of the political, as the motivating and justificatory reasons are not necessarily identical.

2.

INTERPRETIVE APPROACHES AND POLITICAL THEORIES

In the previous section, I argued that the plurality of interpretive criteria contributes to the underdeterminacy of constitutional law. Due to this plurality, judges have the freedom to choose the interpretive criterion that is most in line with the substantive outcome that they want to achieve. However, the choice between the available interpretive criteria has an additional political dimension that deserves further analysis. Constitutions allocate decision-making authority between different institutions. However, the provisions of the constitution leave many issues unregulated and the initial allocation of

For a representative statement of the so-called attitudinal model, see Segal and Spaeth (2002). Although the attitudinal approach was first developed in the United States, it also has some explanatory power in other jurisdictions. See, for instance, Dalla Pellegrina, Garoupa & Gomez-Pomar (2017); Hanretty (2020); Hönnige (2009); Nery Ferreira & Mueller (2014). 16 Dyevre (2017), 334–35. 17 I will use the term ‘constitutional court’ in a generic sense, referring to both designated constitutional courts and ordinary courts with the power of constitutional review. 15

204  Research handbook on the politics of constitutional law authority often needs to be more finely calibrated. Constitutional interpretation has an important role in this process: by choosing a particular method of interpretation, and not another one, judges fine-tune the primary allocation of constitutional authority. However, the point I want to make here is not simply that the different approaches to constitutional interpretation have an impact on the allocation of decision-making authority. Rather, I want to make the stronger claim that these approaches either explicitly or implicitly rely on a political theory about the proper allocation of decision-making authority or can be recast as such a theory. The theories of constitutional interpretation are often presented as morally neutral methodological positions on how the meaning of a text should be construed. However, the debate between the different theories cannot be won by conceptual arguments about the nature of interpretation. I submit that claims about how the constitution should be interpreted are often best understood, or at least can be understood, as claims about the most defensible allocation of constitutional authority. The how-question can easily be turned into a who-question: when the constitution has different plausible interpretations, whose interpretation should prevail and why? The answer to these questions is always rooted in a political theory about the proper role of institutions.18 It is also worth noting that the question about the proper allocation of decision-making authority can dominate the discourse on constitutional reasoning even if the rival positions are not presented as full-fledged theories of interpretation. This is the case, for instance, in the United Kingdom, where debates about the application of the Human Rights Act 1998 are dominated by the question of how much deference courts should give to the political branches. (Allan 2010; Jowell 2003; Kavanagh 2010; Young 2009) In a famous essay on constitutional interpretation, Ronald Dworkin argued that we can be faithful to the intention of the framers in two different ways.19 We can ask what the abstract concepts of a constitution, like equal protection or due process really mean and act upon the best interpretation of those concepts regardless of what the framers had in mind when they incorporated those words into the constitution. By contrast, we can be faithful to the more specific intentions of the framers, that is to say, to the way the framers expected the terms of the constitution to be applied. Dworkin is right to emphasise the conceptual distance between the concepts themselves and the framers’ interpretation of those concepts: the framers’ interpretation does not define those concepts, it can always be challenged by more recent interpretations. The problem is that we do not have direct access to the real meaning of these abstract concepts. What we have is a range of contested views offered by different institutions about what these abstract concepts really mean. Therefore, the practical choice is not between the framers’ conception and the abstract concept, as Dworkin claims, but between the framers’ conception and someone else’s conception. If we recast the theories of constitutional interpretation as political doctrines about the proper allocation of constitutional authority, we can identify three ideal-typical answers to the question at hand. The first gives priority to the views of a past supermajority (the framers), the second to the views of the present majority and the third to the views of judges. Drawing

I agree with the proponents of the so-called institutional turn that the allocation of decision-making authority raises many empirical questions about institutional capacities. Sunstein & Vermeule (2003). However, I believe that the allocation of decision-making authority cannot be justified exclusively by empirical considerations, it must also be informed by normative arguments. 19 Dworkin (1977), 132–37. 18

The politics of constitutional interpretation  205 on these three answers, the different approaches to constitutional interpretation can be lumped together into three families. Within each family, there are variations as to how the prioritised views are exactly defined and why they are prioritised. In what follows, I simply exemplify the three fundamental approaches; it would be beyond the scope of this chapter to offer an exhaustive catalogue of theories of constitutional interpretation. If we understand originalism not as a conceptual claim about the meaning of a text but as a political doctrine, it instructs judges to subordinate their personal views about the meaning of a text to the original understanding of the same text or the original intent of the framers on political grounds. Originalism does not presuppose that the framers were infallible, or that their saying so constitutes what is morally right.20 Its proponents could claim that they adhere to the original understanding of the text not because they prefer the framers’ conception to the constitution’s concepts but because they prefer the framers’ conception to that of unelected judges or present majorities. If originalism wants to be an attractive theory of constitutional interpretation, it must provide a convincing normative argument as to why the framers’ view should prevail over alternative interpretations. Many theories of constitutional interpretation argue that the broad concepts of the constitution must be specified primarily by the legislature or should reflect the views of the present majority. For instance, James Bradley Thayer’s clear-mistake doctrine assumes that judges can make a distinction between those decisions of the legislature that they consider optimal, and those that are not optimal, but are nevertheless plausible, and are within the range of acceptable decisions (Thayer 1893). The core of the clear-mistake doctrine is that when legislators remain within the range of plausible interpretations, their view should prevail, regardless of whether judges agree with it or not. The judges’ opinion trumps that of the legislators only in those cases when the legislature’s decision cannot be considered a reasonable attempt to interpret the constitution. Today, a similar approach to constitutional interpretation seems particularly influential in the Nordic countries.21 Textualism and consensualism are also best understood as political doctrines that privilege the views of present majorities and impose strong limits on the discretionary power of judges.22 Or to put it differently, they want to prevent judges from frustrating the will of the legislative majority unless the limits on that will derive from the specific wording of the constitution or is supported by a broad consensus of the political community. Just like originalism, the clear-mistake doctrine, textualism and consensualism are attractive theories of constitutional interpretation only if they are backed up by convincing political arguments about the proper allocation of constitutional authority. Finally, if the judges’ task is to figure out the best interpretation of the constitution’s concept, as Dworkin claims, this is just another way of saying that in case of disagreement the contested views of judges should prevail over the views of others. According to this approach, when judges are required to specify the meaning of such concepts as human dignity, they should not defer to the views of the framers or the legislators but should elevate their own conception to authoritative status. Once again, this option is attractive only if we have reasons to believe that due to the special expertise or institutional position of judges, the political community will be better off by relying on their interpretation of the constitution’s abstract concepts.

Barber & Fleming (2007), 29. See Gyofry (2016), 222–27. 22 Barber & Fleming (2007), 67–78. 20 21

206  Research handbook on the politics of constitutional law Although I argued that all three approaches discussed above are based on a political theory about the proper allocation of constitutional authority, this does not mean that the decisions generated by these interpretive approaches would always have the same ideological character. On the contrary, each of them can generate decisions with very different ideological orientations, depending on the context. Although originalism has a distinctively conservative flavour in the United States, liberal judges in Malaysia also appealed to originalism to defend the secular nature of the state (Tew 2014). An interpretive approach that can be understood as a version of the clear mistake rule produced many distinctively conservative decisions in Japan (Law 2009; Matsui 2011) but produced broadly social-democratic ones in the Nordic countries (Gyofry 2016). Also, although judicial activism is often associated with liberal judges, there is nothing inherently liberal in judicial activism. For instance, in the 1970s, judicial activism produced a liberal abortion decision in the United States,23 whereas it produced a conservative one in Germany.24 But judicial activism is also endorsed by most proponents of transformative constitutionalism today from South Africa to India, encouraging judges to articulate political views that transcend the liberal/conservative divide (Hailbronner 2017).

3.

THE POLITICAL CONTEXT OF CONSTITUTIONAL INTERPRETATION

In the first section of this chapter, I established that due to the underdeterminacy of constitutional law, judges must often rely on extralegal considerations when they make decisions. However, this does not imply that they will always choose the option that is most consistent with their personal preferences. But even if a judge always wanted to make decisions that were most consistent with their preferences, sometimes it is more rational to pursue those preferences indirectly, as the strategic model of judicial decision-making teaches us. (Epstein & Knight 1998) In some cases, the outcome of a case will approximate the preferences of the judge more closely if they do not vote for their preferred alternative but for their second-best option. Let us imagine that a court has to choose between three plausible interpretations of the constitution, A, B and C. The preferred option of the court is A and its least preferred one is C. Without taking into account the institutional context, we would expect the judges of the court to vote for A. Let us assume that they know that if they decide A a higher court or the legislature will overrule/overturn A and C will remain the law. Our judges also have reasons to believe that if they vote for B, the higher court/legislature will not overrule/overturn B, and B will become the law. If our judges are interested primarily not in voting in line with their preferences, but moving the decision as close as possible to their preferences, they should vote not for A but for B. The above example sheds light on the logic of interdependency in judicial decision-making: when judges make decisions, they anticipate the responses of ‘relevant others’. But to understand how this logic operates in constitutional adjudication, we have to identify who the relevant others are and what their reactions could be. It is reasonable to assume that constitutional courts do not address their decisions to a single audience but interact with different audiences 23 24

Roe v. Wade 410 US 113 (1973). 39 BverfGE 1.

The politics of constitutional interpretation  207 and those audiences may have different responses to the courts’ decisions (Garoupa & Ginsburg 2015; Paterson 2013). It is also likely that the expectations of those audiences cannot be simultaneously met in every case and therefore courts have to engage in a balancing exercise, prioritise the expectations of some institutions and discard the expectations of others. As some of these audiences are political and others are legal, it is intelligible to say that a court’s activity is more or less political depending on how much weight it attaches to the responses of political institutions. The traditional doctrinal approaches to constitutional interpretation take it for granted that whenever a constitutional court makes a decision, the political branches of the government will comply with that decision. However, this assumption is far from self-evident.25 It can happen even in consolidated democracies that the political branches try to evade or simply ignore the decisions of the court. Although international human rights courts interpret international human rights instruments, due to their immense effect on the interpretation of domestic constitutions, it is worth noting here that compliance with the decisions of such courts is even more problematic. As one expert says about the European Court of Human Rights: ‘partial compliance appears increasingly the norm in both Western and Eastern Europe.’26 Compliance gives rise to slightly different questions again in the case of weak constitutional review. For instance, in the United Kingdom, when a court makes a declaration of incompatibility, Parliament does not have a legal obligation to comply with this declaration, even though this action has political risks. The second alternative to compliance is that the political branches ‘overturn’ the decisions of the constitutional court by a constitutional amendment. When we envisage a constitution, we most often think of a document that is fairly difficult to amend and therefore believe that this scenario is rather exceptional. However, empirical analysis suggests that there is a significant discrepancy between this idealised version of constitutionalism and the actual practice of contemporary states (Versteeg & Zackin 2016). Democratic states amend their constitutions roughly once every five years. Although I am not claiming that constitutional amendments systematically overrule previous decisions of constitutional courts, the actual risk of this phenomenon is much higher than our traditional understanding of constitutionalism would suggest. Finally, the political branches may put even bigger pressure on a constitutional court by trying to influence its decisions. Under the most extreme scenario, they change the powers or the composition of the court. There are also more subtle methods: for instance, the political branches can offer lucrative government positions for judges who are going to retire soon. Empirical analysis shows, for example, that the decisions of the Indian Supreme Court are influenced by such rewards.27 Although many case studies could be used to illustrate my general point, the recent constitutional history of Hungary is a particularly rich depository of examples of how a populist government can try to silence a constitutional court. Since 2010, except for a short interval, Viktor Orbán’s government has always had the requisite majority to amend the constitution. Therefore, the judges of the Hungarian Constitutional Court always interpret the constitution knowing that their determination of the meaning of the constitution might not be final. In my survey of the alternatives to compliance, I draw on Ginsburg (2003), 77. Madsen (2016), 173. 27 Aney, Dam & Ko (2017). 25 26

208  Research handbook on the politics of constitutional law Shielding ordinary laws from constitutional review by elevating them to the body of the Fundamental Law (as the Hungarian constitution is called) became a systematic feature of Hungarian constitutionalism.28 The Hungarian Government has also curtailed drastically the powers of the court, changed the system of judicial appointments and packed the court with judges who tend to be extremely deferential to the political branches.29 But the Hungarian example also shows that once the constitutional court is tamed and packed with friendly judges, noncompliance is no longer necessary. A constitutional court that has some autonomy and occasionally finds against the government is a useful addition to the democratic façade of hybrid regimes.30 In most extreme cases, courts even actively and willingly contribute to the erosion of democratic institutions (Landau & Dixon 2020). I am not claiming here that noncompliance with the decisions of constitutional courts would be a systemic phenomenon in every legal system. My claim is that every realistic theory of constitutional interpretation must take into account the possibility of such responses and the possibility of such responses can figure in how judges interpret the constitution. In addition to the political branches, constitutional courts might also anticipate how their interpretation will be perceived by other legal institutions. On the one hand, the responses of these audiences can impose further limits on the freedom of judges to pursue their own preferences. On the other hand, they can also counterbalance the impact of political influence and help judges to interpret the constitution according to their own values despite political pressure. I can only mention here briefly four such legal audiences. First, in the European context, it is difficult to overestimate the influence of the European Court of Human Rights (ECtHR) on the interpretation of domestic constitutions. Although constitutional courts are formally not subordinated to ECtHR, most constitutional courts developed a doctrine that requires them to interpret their domestic constitutions in light of the jurisprudence of the ECtHR.31 Second, in the centralised form of judicial review, where there is no clear hierarchy between the constitutional court and the supreme court(s), there is the potential of rivalry between these institutions.32 Constitutional courts must earn the trust and respect of ordinary courts to secure their cooperation. Third, constitutional courts also communicate with each other and want to be recognised and respected by the ‘global community of courts’.33 This recognition can boost the reputation, and in some cases also the domestic legitimacy of a court. This consideration has been especially important in new democracies that wanted to cement their position in the family of democratic nations. For instance, it is widely acknowledged that the Federal Constitutional Court of Germany acted as a point of reference for many newly established

28 Opinion no 720/2013 of the Venice Commission, ‘Opinion on the Fourth Amendment of the Fundamental Law of Hungary’. 29 For an English summary of how the powers of the court were curtailed, see Halmai (2019). Between 2005 and 2010, on average, 31 rulings of the HCC declared in each year that a legal provision enacted by the government violated the Constitution. Between 2011 and 2017, the same value decreased to 15. 30 Ginsburg & Moustafa (2008). 31 See, for instance, the Görgülü-decision of the Federal Constitutional Court of Germany. 111 BVerfGE 307, 317. Some courts have an explicit legal obligation to take into consideration the jurisprudence of the Strasbourg court. This is the case, for instance, in Portugal, Spain and the United Kingdom. 32 Garoupa & Ginsburg (2015), 141–66. 33 Slaughter (2003).

The politics of constitutional interpretation  209 constitutional courts in Europe in the 1980s and 1990s.34 Finally, it is also important to note that in the case of centralised constitutional courts, many judges are recruited from the legal academia. For such judges, the community of legal scholars is an important audience, and an interpretation of the constitution that is not consistent with certain academic standards can undermine their scholarly reputation.

4.

THE PERCEPTION OF THE POLITICAL AND THE APPOINTMENT OF CONSTITUTIONAL JUDGES

Let us imagine that a constitutional court must make a decision about the partial recounting of votes during a general election. The relevant rules can be interpreted in different ways; there are plausible legal arguments both for and against the partial recounting of votes. Due to the underdeterminacy of legal provisions, judges can choose whichever argumentative strategy supports their political preferences. In our fictitious legal system, the appointment of constitutional judges is a low-profile event that excites only a very small segment of the legal profession. Most citizens would have difficulties in recalling the name of a single member of the constitutional court. The judges of the constitutional court reject the recounting of the votes. In its published opinion, the court relies on one of the two argumentative strategies that were well-rehearsed in the press and there is no indication that the judges were influenced by other considerations. Since in our fictitious legal system the votes of the judges are not revealed, the members of the public are not aware of the fact that the decision turned on a single vote. Now let us recall Bush v. Gore, a landmark US Supreme Court decision that is fairly similar to our fictitious case.35 In its split decision, the US Supreme Court rejected the recounting of votes. Why is it that Bush v. Gore is considered one of the most political decisions of the US Supreme Court, whereas our fictitious case would arguably be perceived rather differently? One cannot differentiate between the two cases based on the subject matter or the impact of the decision. I also assumed that the justification of both decisions met the standards that we expect of such opinions, that is, they were justified by plausible legal arguments. Arguably, the most striking difference between the two cases is that in our fictitious case, we have no information on the political preferences of the judges, and, therefore, cannot be sure that the votes of the judges were influenced by their political preferences. By contrast, the political preferences of the US Supreme Court justices were well-known before the decision, and we have good reasons to believe that the five justices of the majority in Bush v. Gore were motivated by their conservative preferences while the four dissenting justices were motivated by their liberal preferences. The close alignment between the votes of the judges and their political attitudes suggests strongly that the decision was motivated by political considerations. The point I want to make here is that although the two decisions might have been equally political, how they are perceived is rather different, and this difference may influence the design of the institutional framework in which constitutional interpretation takes place. In legal systems that do not allow the publication of dissenting opinions, it is reasonable to speak about the political orientation of a court’s decisions, but it is almost impossible to identify the attitudes of individual judges. In such a system, it is difficult to imagine that Sólyom (2003). 531 U.S. 98 (2000).

34 35

210  Research handbook on the politics of constitutional law a judge will be known by the members of the public because of their judicial activity and will have a distinctive judicial profile. By contrast, in legal systems that permit the publication of individual opinions, the personal preferences of judges can be identified. Separate opinions give judges a distinctive profile and help them to articulate both their substantive values and their general judicial philosophy. In several legal systems that belong to the civil law tradition, the publication of individual opinions is allowed only for the judges of constitutional courts. If perception matters, in these legal systems, constitutional law seems more political than the other branches of law, due to the sheer fact that the judges are allowed to write individual opinions. However, it is worth noting that the activity of these courts is still less transparent than that of the courts in common law jurisdictions. Judges do not have an obligation to reveal how they voted, and this lack of transparency is considered normal even by leading human rights organisations, such as the Venice Commission.36 Revealing how judges vote makes it possible for political scientists to conduct sophisticated empirical research on judicial behaviour. The systematic study of judicial behaviour is likely to contribute to a more realistic understanding of constitutional interpretation and makes the orthodox view more untenable. If the insights of this body of literature trickle down to the general public, they will also perceive constitutional interpretation as a partially political activity. This may give incentives to the political branches to adjust the institutional framework to this new understanding, opening up the public discourse on the values of judges and rebalancing judicial accountability and judicial independence, giving more weight to the former (Geyh 2016). Moreover, if the judicial appointment process becomes more open to public scrutiny and political input, this can indeed strengthen the role of political preferences among the motives of judges. I am not claiming that transparent judicial opinions automatically lead to a politicised appointment process; my argument is that if other conditions are met, the practice of transparent opinion-writing is more conducive to an appointment process where the values of the judges are subject to some kind of public scrutiny. Paradoxically, many civil law countries where the rules on opinion-writing try to conceal or downplay the creativity of judicial decision-making, have an appointment process that is premised on the political character of constitutional interpretation. The appointment of the judges of the constitutional court is usually different from the appointment of other judges and reflects the special status of the constitutional court.37 By contrast, in some common law jurisdictions, like the United Kingdom, where the opinion-writing practice showcases the creative nature of judicial decision-making, the appointment process is fundamentally depoliticised.38

Opinion № 932/2018 of the Venice Commission, ‘Report on Separate Opinions of Constitutional Courts’. 37 France is a good example. However, the political input in the appointment process does not necessarily imply that there is a public debate about the values of the candidates. 38 However, there are some signs in the United Kingdom that a different understanding of what judges are doing will give rise to a more open debate about the values of Supreme Court justices. See Malleson (2022). 36

The politics of constitutional interpretation  211

5. CONCLUSION Although it is safe to claim that law and politics are inexplicably intertwined in constitutional interpretation, this relationship has many aspects, and my chapter aimed to identify and dissect the different dimensions of this relationship. First, I argued that due to the underdeterminacy of constitutional law, extralegal considerations, which might include the political preferences of the judges, play an important role both among the causes and the justifying reasons for judicial decisions. Constitutional interpretation is an important mechanism by which judges choose between possible answers to contested moral issues on behalf of the political community. Second, I argued that the choice between the available approaches to constitutional interpretation is not politically neutral. The theories of constitutional interpretation either explicitly or implicitly rely on a political theory and require normative justification. Third, I analysed the political context of constitutional interpretation and argued that judges often anticipate how ‘relevant others’ will respond to their decisions and may factor in these expectations in their decision-making. Since the political branches of the government are among the most important audiences of constitutional court decisions, their potential responses always play an important role in judicial decision-making. Finally, I argued that the practice of opinion-writing can influence how the public perceives judicial decision-making and this public perception can influence how the institutional framework of constitutional interpretation, including the system of judicial appointments, is designed.

REFERENCES Allan, Trevor R S. (2010). ‘Deference, Defiance, and Doctrine: Defining the Limits of Judicial Review,’ University of Toronto Law Journal 60: 41–59. Aney, Madhav S., Shubhankar Dam & Giovanni Ko. (2021). ‘Jobs for Justice(s): Corruption in the Supreme Court of India,’ Journal of Law & Economics 64: 479–511. Barak, Aharon. Proportionality: Constitutional Rights and Their Limitations (Cambridge University Press, 2012). Barber, Sotirios A. & James El Fleming. Constitutional Interpretation: The Basic Questions (Oxford University Press, 2007). Dahl, Robert A. (1957). ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,’ Journal of Public Law 6: 279–95. Dalla Pellegrina, Lucia, Nuno M. Garoupa & Fernando Gomez-Pomar. (2017). ‘Estimating Judicial Ideal Points in the Spanish Supreme Court: The Case of Administrative Review,’ International Review of Law and Economics 52: 16–28. Dworkin, Ronald. Taking Rights Seriously (Duckworth, 1977). Dworkin, Ronald. Law’s Empire (Fontana Press, 1986). Dyevre, Arthur. ‘The French Constitutional Council’ in András Jakab, Arthur Dyevre & Giulio Itzcovich (eds) Comparative Constitutional Reasoning (Cambridge University Press, 2017). Epstein, Lee & Jack Knight. The Choices Justices Make (CQ Press, 1998). Garoupa, Nuno & Tom Ginsburg. Judicial Reputation: A Comparative Theory (University of Chicago Press, 2015). Geyh, Charles Gardner. Courting Peril: The Political Transformation of the American Judiciary (Oxford University Press, 2016). Ginsburg, Tom. Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge University Press, 2003). Ginsburg, Tom & Tamir Moustafa (eds). Rule By Law: The Politics of Courts in Authoritarian Regimes (Cambridge University Press, 2008).

212  Research handbook on the politics of constitutional law Goldsworthy, Jeffrey (ed). Interpreting Constitutions: A Comparative Study (Oxford University Press, 2006). Gyofry, Tamas. Against the New Constitutionalism (Edward Elgar Publishing, 2016). Hailbronner, Michaela. (2017). ‘Transformative Constitutionalism: Not Only in the Global South,’ The American Journal of Comparative Law 65: 527–65. Halmai, Gábor. (2019), ‘Dismantling Constitutional Review in Hungary,’ Rivista di Diritti Comparati 1: 31–47. Hanretty, Chris. A Court of Specialists: Judicial Behavior on the UK Supreme Court (Oxford University Press, 2020). Hart, Herbert L. A. The Concept of Law (Clarendon Press, 1961). Hönnige, Christoph. (2009). ‘The Electoral Connection: How the Pivotal Judge Affects Oppositional Success at European Constitutional Courts,’ West European Politics 32: 963–84. Jakab, András, Arthur Dyevre & Giulio Itzcovich (eds). Comparative Constitutional Reasoning (Cambridge University Press, 2017). Jowell, Jeffrey. (2003). ‘Judicial Deference: Servility, Civility or Institutional Capacity?,’ Public Law 592–601. Kavanagh, Aileen. (2004). ‘The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998,’ Oxford Journal of Legal Studies 24: 259–85. Kavanagh, Aileen. (2010). ‘Defending Deference in Public Law and Constitutional Theory,’ Law Quarterly Review 126: 222–50. King, Jeff A. ‘Constitutions as Mission Statements,’ in Denis J. Galligan & Mila Versteeg (eds) Social and Political Foundations of Constitutions (Cambridge University Press, 2013). Landau, David & Rosalind Dixon. (2020). ‘Abusive Judicial Review: Courts Against Democracy,’ UC Davis Law Review 53: 1313–88. Law, David S. (2009). ‘The Anatomy of a Conservative Court: Judicial Review in Japan,’ Texas Law Review 87: 1545–94. Madsen, Mikael Rask. (2016). ‘The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash,’ Law & Contemporary Problems 79: 141–78. Malleson, Kate. (2022). ‘Values Diversity in the UK Supreme Court: Abandoning the “Don’t-Ask-Don’t-Tell” Policy,’ Journal of Law and Society 49: 3–22. Matsui, Shigenori. (2011). ‘Why Is the Japanese Supreme Court So Conservative,’ Washington University Law Review 88: 1375–1424. McCrudden, Christopher. (2008). ‘Human Dignity and Judicial Interpretation of Human Rights,’ European Journal of International Law 19: 655–724. Nery Ferreira, Pedro F.A. & Bernardo Mueller. (2014). ‘How Judges Think in the Brazilian Supreme Court: Estimating Ideal Points and Identifying Dimensions,’ Economia 15: 275–93. Paterson, Alan. Final Judgment: The Last Law Lords and the Supreme Court (Hart Publishing, 2013). Robertson, David. Judicial Discretion in the House of Lords (Clarendon Press, 1998). Robertson, David. The Judge as Political Theorist: Contemporary Constitutional Review (Princeton University Press, 2010). Segal, Jeffrey A. & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge University Press, 2002). Slaughter, Anne-Marie. (2003). ‘A Global Community of Courts,’ Harvard International Law Journal 44: 191–219. Solum, Lawrence B. (1987). ‘On the Indeterminacy Crisis: Critiquing Critical Dogma,’ University of Chicago Law Review 54: 462–503. Sólyom, László. (2003). ‘The Role of Constitutional Courts in the Transition to Democracy With Special Reference to Hungary,’ International Sociology 18: 133–61. Sunstein, Cass R. & Adrian Vermeule. (2003). ‘Interpretation and Institutions,’ 101: 885–951. Sweet, Alec Stone & Jud Mathews. Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach (Oxford University Press, 2019). Tew, Yvonne. (2014). ‘Originalism at Home and Abroad,’ Columbia Journal of Transnational Law 52: 780–895.

The politics of constitutional interpretation  213 Thayer, James B. (1983). ‘The Origin and Scope of the American Doctrine of Constitutional Law,’ Harvard Law Review 7: 129–56. Tushnet, Mark. Advanced Introduction to Comparative Constitutional Law (Edward Elgar Publishing, 2018). Versteeg, Mila & Emily Zackin. (2016). ‘Constitutions Unentrenched: Toward an Alternative Theory of Constitutional Design,’ American Political Science Review 110: 657–74. Young, Alison L. (2009). ‘In Defence of Due Deference,’ Modern Law Review 72: 554–80.

PART II STRUCTURES

13. The gradual creation of a Leviathan: Latin America’s main constitutional failure Roberto Gargarella

From the early nineteenth century, the relationship between the Executive and Legislative branches in Latin America was defined by problems derived from a failed institutional design.1 I will characterise this failed design as one distinguished by an ‘unbalanced system of checks and balances’. I will argue that such flawed constitutional design provides part of the explanation of the bad performance of the system. More particularly, I will argue that the original constitutional design is, in part, responsible for the emergence of (so-called) Latin American ‘competitive authoritarianism’, ‘hyper-presidentialism’, ‘reactive legislatures’ and similarly defective developments.2 In this chapter, I will argue that this constitutional design had its origin in the pact between liberals and conservatives that took place in and after the mid-nineteenth century, this is to say during the region’s main constitution-making period. More specifically, I will claim that such defective schema originated from the peculiar modality in which the pact between the two main political factions developed in those early years. I will also claim – contrary to what some comparative scholars presently maintain – that the aforementioned problems suggest why, in Latin America, the ‘recent’ phenomenon that is described as ‘democratic erosion’ represents an ‘old novelty’.3 First, I describe the liberal and conservative projects. Then, I give an account of the particular way in which they articulated their ‘failed’ constitutional agreement, and the way in which developed this agreement. Finally, I explore some of the most unattractive constitutional and political implications that followed from such peculiar constitutional choice.

In what follows, I shall concentrate my attention on the Latin American constitutionalism, which is my area of expertise. However, I assume that many of the general points I shall make (i.e., regarding the way in which imperfect institutional systems partially explain the political crises of our time) can be also applied beyond the Latin American region. 2 I take the term ‘competitive authoritarianism’ from the work of Steve Levitsky. He defined the concept by stating: ‘In competitive authoritarian regimes, formal democratic institutions are widely viewed as the principal means of obtaining and exercising political authority. Incumbents violate those rules so often and to such an extent, however, that the regime fails to meet conventional minimum standards for democracy’. See Levitsky & Way (2002). I take the term ‘hyper-presidentialism’ from Carlos Nino. Nino used the concept to distinguish presidentialist systems such as the one that prevail in the US, from the particular form that regime acquired in Latin America, given the ‘additional’ powers that were usually transferred to the Executive in regional constitutions. These additional powers included those to declare the stage of site and limit the scope of rights in such circumstances; exceptional coercive powers; the power to ‘intervene’ through force in the different states (intervención federal); the Executive capacity to freely appoint and remove its ministers; etc. See e.g. Nino (1999). See also Landau (2013). 3 References to ‘democratic erosion’ in the Latin American context can be found, for instance, in Ginsburg & Huq (2018); Graber, Levinson & Tushnet (2018); Landau (2013); Levitsky & Ziblatt (2018). 1

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1.

CONSERVATISM AND LIBERALISM IN EARLY LATIN AMERICA (1810–1850)

To begin this analysis, I am going to characterise the conservative and liberal factions, which have been the two main political groups that disputed the control of power in most of the region, since the time of independence (approximately 1810). Most significantly, these two groups were the main protagonists of the constituent debates in most Latin American countries. The conservative faction represented the project of ‘the cross and the sword’, in other words, the one of religion and order. It derived from the social and ideological structure prevailing during the colonial period: it was closely related to the Spanish and Portuguese Empires. The conservative project proposed organising the institutional system around one particular conception of the good – in Latin America, clearly, the Catholic religion – and at the same time assumed a restrictive and elitist political approach. Majority or popular will had basically no place within this kind of political organisation. Consequently, conservatives usually drafted constitutions characterised by two main features: first, political elitism, which expressed their hostility towards the ideal of self-government; and then moral perfectionism, which expressed their hostility towards the ideal of individual autonomy. Conservative constitutions tended to concentrate power and strengthen the authority of the executive while making individual rights dependent on ‘external’ values such as the values of the Catholic religion. In Latin America, this conservative political model, which combined a religious State, an extreme form of centralism and strong presidentialism, found different manifestations: from the theocratic model that appeared in Ecuador, with García Moreno; to the Bolivarian model of a president appointed for life;4 to the isolationist authoritarianism of the Paraguayan ‘supreme dictators’, such as Gaspar de Francia and Francisco Solano López;5 or the imperial type, as the one that was defended in Brazilian constitutionalism;6 or the model of the ‘Supreme Conservative Power’, created by the Mexican 1836 Constitution. Moreover, in some exceptional but significant occasions, the conservative model adopted the form of a monarchical proposal.7 The liberal faction represented the project of political moderation and strong rights (constitutional rights represented the ‘wall of separation’ between the State and individuals’ fundamental interests). In fact, the liberal project was related to one of the great revolutions that took place in the period, namely the US independence revolution. Particularly concerned with the protection of basic fundamental rights, liberals suggested adopting institutional checks against ‘the excesses of power’. Liberals proposed, in particular, to adopt an institutional system that prevented both ‘tyranny and anarchy’. In other words, they wanted to avoid the possible abuses coming either from a powerful Executive authority (‘tyranny’) or from unrestrained majorities. Liberal constitutions were thus typically distinguished by their commitment to a system of political equilibrium or moderation, which expressed their particular approach towards the notion of self-government; and also by a firm principle of moral neutrality, which expressed their observance of the ideal of individual autonomy. Typically, liberal constitutions included Bolívar (1976). See Romero (1970). 6 See Calmón (1959), vol. 4; and also Mendes et al. (2008). 7 See Safford (1985), 360–61, in Leslie Bethell, ed., The Cambridge History of Latin America, vol. 3 (Cambridge University Press, 1985). 4 5

The gradual creation of a Leviathan  217 a list of individual rights that were presented as unconditional (rights were not dependent on the discretionary will of one or the many), and also strong systems of ‘checks and balances.’ In Latin America, the liberals’ first constitutional steps were timid and fearful. Typically, Latin American liberals followed constitutions such as the one of Cadiz 1812, which gave support to a slow withdrawal from the conservative model. This latter model suggested fewer powers to the Executive; more controls and authority to the parliamentary body; more space to individual rights.8 Constitutions such as those of Argentina (1826); Chile (1828); Nueva Granada (1830 or 1832); México (1824); Peru (1823 and 1828) and Uruguay (1830) represent very moderate examples of such a tendency.9 Later, however, liberals in the region would promote more powerful constitutions: constitutions that were more strongly committed to individual rights; more emphatic in their defence of federalism and the decentralisation of powers; and firmer in their defence of internal institutional controls.

2.

THE LIBERAL-CONSERVATIVE FUSION (1850–1890)

During the first half of the nineteenth century, and in most Latin American countries, liberals and conservatives appeared as political enemies Just to illustrate the extreme confrontations that emerged between these two groups, we can mention, for instance, the bloody battles between unitarios and federales, in Argentina; the Federal War in Venezuela, which also divided liberals and conservatives; the cruel clash between the two groups in Colombia, which included episodes of Civil War; the dire hostility between the Mexican liberals puros, in Mexico, and the forces of the conservative Santanistas. By the mid-nineteenth century, however, what we begin to find are examples of the opposite, this is to say of liberals and conservatives coming together. We may mention, in this respect, the liberal-conservative ‘fusion’ in Chile (1857–1873); the 1853 Constitution in Argentina; and also the 1886 Constitution in Colombia, which were written by representatives of both the liberal and conservative groups. We find similar cases of convergence between these two groups in Mexico, Peru and Venezuela. In the end, the fact is that, after years of severe disputes, liberals and conservatives gradually began to join forces, and forge an alliance that would be decisive at the moment when national constitutions began to take their final form in a majority of the countries of the region.10 Finally, by the mid-nineteenth century, most

Breña (2006). According to Frank Safford, the Constitution of Cadiz would allow Latin Americans to do ‘essentially the same thing that they were trying to do: to introduce Anglo-French liberal constitutional ideals into a Spanish political structure’” (Safford (1985), 362). In his opinion, the Cadiz Constitution also served to strengthen (rather than debilitate) a structure of power that the very first constitutions of the region (more clearly inspired by radicals’ ideals) had substantively weaken (ibid.). 10 It is not easy to explain what helped bring about such convergence between the two groups, after decades of violent confrontations between them. Although it is not easy to account for what happened, an explanation may be related to the ‘red’ or ‘democratic’ revolutions that took place in Europe, by 1848, against the then prevalent hierarchical and exclusionary societies. The same wave of political radicalisation also reached the Latin American coasts, in different ways. Suddenly, Latin America became a territory where new forms of political confrontation, class conflict, and social disorder took place. Property seemed menaced and the old colonial order in a terminal crisis. See e.g. Collier (1967); Gilmore (1956), n. 2; Gootenberg (1993), in J. Love & N. Jacobsen, Guiding the Invisible Hand. Economic Liberalism 8 9

218  Research handbook on the politics of constitutional law countries in the region had constitutions that were written by representatives of the liberal and conservative groups – those old enemies who appeared now as political allies. The constitutions adopted as a result of this gradual overlap – sometimes formal, sometimes implicit – between liberal and conservative ideals were usually successful, if we evaluate them in terms of stability, and compare with the constitutions that preceded them. Most of these constitutions went beyond the twentieth century and remained more or less unmodified for a while, allowing the rooting of the new institutions of fusion in the legal traditions of the region. We find good illustrations of these new types of constitutions in Argentina’s 1853 Constitution (which was drafted by representatives of both liberal and conservative groups); Mexico’s 1857 Constitution (mainly drafted by a convergence of moderate liberals, ‘pure’ liberals and conservatives); and the Peruvian Constitution of 1860 (which synthesised the different constitutional models present in the country in the previous years). Uruguay’s Constitution of 1830, which remained stable until the late twentieth century, combined a liberal structure, which included a list of individual rights and a classic system of division of powers, with a strong presidentialist organisation, and very restricted political rights. In Chile, we find the clearly conservative 1833 Constitution that regulated the political life of the country during most of the nineteenth century. However, after the 1850s, and under the pressures of liberalism, the Constitution began to lose its main conservative features. In this way, even Chile’s constitutional system became an expression of a conservative-liberal Constitution. In Colombia, we find a different process that, in part, reverses the one that we find in Chile. In effect, in the Colombian case we can see that, by the end of the century, the prevalent radical constitutional model began to lose its strength, to be finally replaced by a different one, characterised by the inclusion of numerous conservative institutions. In Paraguay, we find the 1870 Constitution, which was clearly inspired by Argentina’s liberal-conservative 1853 Constitution (even though the Paraguayan document strengthened some of the more conservative features of the Argentinean document – in particular, those related to the territorial organisation of the country, given that Paraguayans wanted to consecrate a clearly centralist Constitution).

3.

DRAFTING CONSTITUTIONS BETWEEN LIBERALS AND CONSERVATIVES: THE STRATEGY OF ‘ACCUMULATION’ (‘BUNDLING’)

The defective constitutional system that liberals and conservatives designed in Latin America was the product of the peculiar way in which both groups agreed and resolved their differences. Indeed, there are many ways in which opposing groups within a constitutional convention can divide their disagreements. The ‘cumulative’ mode that became predominant in Latin America – I shall maintain – would end up being particularly unattractive. Before referring to this ‘cumulative’ modality, allow me to differentiate it from three other alternatives that were occasionally used in the Americas. The most common form of constitutional creation in Latin America during the first half of the nineteenth century was that of mere imposition. Imposition implied, simply, that the and the State in Latin America History (Praeger, 1993). Undoubtedly, these events worked in favour of the conservative-liberal reunion.

The gradual creation of a Leviathan  219 dominant or strongest political faction imposed its will on the weaker one who was, more or less directly, excluded from the constitution-making process. For example, when the religious question occupied a central place in the political conflicts of the time, the predominance of the liberals implied the adoption of some formula of ‘religious tolerance’ within the constitution; while the triumph of the conservatives led typically to the establishment of the Catholic religion as the state religion. Another significant alternative among constitutional-makers was silence, this is to say the choice of saying nothing or remaining silent about divisive social issues.11 Silence seems to have been preferred when the different factions found it difficult to establish common points of agreement. For instance, the Mexican delegates at the 1857 Convention chose silence when they had to decide about the issue of Catholic religion, at a time where there was no other issue that mattered more to the delegates than the issue of religion. A third and more interesting choice was the one we could call synthesis. This alternative appeared, for instance, when US delegates discussed the issue of religion at the Federal Assembly. The American ‘founders’ agreed to look for a common ground on the matter and managed to find a constitutional formulation that they could all fully subscribe to from their own particular perspectives. This was the great achievement of the 1st Amendment, which reads as follows: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances’. Now, as anticipated, the most common strategy tried in Latin America was that of ‘accumulation’ or ‘bundling’. This strategy implied to ‘bundle’ the interests in tension of the different parties. In cases of opposition and tension in the claims, when the relevant forces chose ‘not to let the problem pass’ in silence, the strategy of ‘bundling’ was generally preferred.12 In these cases, the members of the convention tried simply to insert into the constitution (‘one on top of the other’) as many of their different claims as they could, leaving the tension between them unresolved or totally intact. We shall see, beyond the obvious and foreseeable difficulties, that this strategy is also problematic. The Argentine Constitution (in its original 1853 version, which remains largely intact and relevant to our discussion) offers several examples of the potential and risk of this strategy. For instance, the delegates to the Constituent Convention of 1853 – a Convention that included representatives of the liberal and conservative groups – decided first, in response the demands of the conservatives, to grant special status to the Catholic Church in Article 2 of the Constitution (‘The federal government supports the Roman Catholic Apostolic Church’). At the same time, but now in response to the demands of the liberals, they adopted a scheme of religious tolerance through Article 14 (‘All the inhabitants of the Confederation enjoy the following rights … to freely profess their religion’). In other words, they included both contradictory commitments in the Constitution. Article 19 of the Constitution, which refers to the right of privacy, represents another (dramatic) illustration of ‘bundling’, this is to say of the inclusion of constitutional commitments that are in tension.

As Cass Sunstein once put it, sometimes people decide to ‘decide very little’, to ‘leave things open’, making ‘deliberate decisions about what should be left unsaid’. See Sunstein (1996); Sunstein (2001). 12 See e.g. Lerner (2018) in Jon Elster & Roberto Gargarella et al, Constituent Assemblies (Cambridge University Press, 2018). 11

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4.

HYPER-PRESIDENTIALISM AND AN ‘UNBALANCED SYSTEM OF CHECKS AND BALANCES’

Let me now examine what I consider to be the main institutional problems created by the strategy of ‘bundling’ in Latin America: the problems related to the organisation of constitutional powers. Let us start from what we know: we have seen that in most Latin American countries, by the mid- nineteenth century, liberals and conservatives modelled systems of organisation of powers that combined in a peculiar way – ‘accumulation’ – their conflictive political ambitions. Liberals favoured a system of ‘checks and balances’ like the one adopted in the United States, while conservatives preferred a model of concentration of powers, like the one that prevailed during the colonial period. Because of their compact, liberals and conservatives drafted constitutions that preserved the essence of both those (opposite) ideals: equilibrium of powers (liberals) and concentration of powers (conservatives). They thus created an imperfect system that we could (re)name as an unbalanced system of checks and balances.13 This particular combination between liberal and conservative constitutional features (the search for both political equilibrium and a quite unrestrained executive authority) became a salient characteristic of Latin American constitutions. In fact, and in spite of all the changes that have been incorporated since then in the different regional documents, no Constitution significantly changed the old schema of powers that resulted from the nineteenth century liberal-conservative compact. In other words, even today, Latin American constitutions offer organisation of powers that have been modelled according to goals, principles, and assumptions that were dominant in the region during the nineteenth century. Now, Latin America’s ‘unbalanced system of checks and balances’ announced (or worse, promised), from the very moment in which it was adopted, future situations of political instability. Thus, the presence of a (hyper) strong Executive power puts into question, if not directly undermines, the very logic of the system of check and balances. That logic requires each branch of government to get an equivalent share of power, which – as the founders assumed – would prevent the problem of mutual encroachments. As James Madison put it, in Federalist Paper 51, ‘the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.’ If – in contradiction with the original plan – one branch of power, say the Executive branch,

13 Argentina’s main constitutional ideologue, namely Juan Bautista Alberdi, explicitly defended this liberal-conservative approach to the organisation of powers in his most influential book, namely, Bases y puntos de partida (the book would soon become the ideological foundation of Argentina’s 1853 Constitution). In chapter 25 of Bases, Alberdi claimed that the US Constitution, which so far had represented the main influence within his own constitutional project, had to be set aside when designing the Executive branch: at that stage, the model to be followed was going to be – he declared – the authoritarian Chilean Constitution of 1833. See Alberdi ([1852] 1981). The combination proposed by Alberdi, then, was based on the model of ‘checks and balances’ adopted in the United States and the authoritarian model proposed first by Juan Egaña (in Chile’s 1823 Constitution) and then by his son Mariano (a decisive figure in the debates over the 1833 Chilean Constitution). That is how Argentina – as eventually almost all the other Latin American countries – ended up granting the executive much broader ‘additional powers’ ​​than those of the expressly presidential US Constitution itself. These special powers (through the state of siege, federal intervention, etc.) reserved to the President have allowed different authors (i.e., Carlos Nino) to refer to this specific political regime as hyper-presidentialism.

The gradual creation of a Leviathan  221 is endowed with more capacities than the rest, then the very logic of the system of checks and balances becomes subverted. This is what tends to happen when the Executive branch gains more powers, and thus more threatening capacities than the other branches. Latin America’s history of political instability seems to confirm those risks. In the long term, one could claim, the working of the system has been extremely poor. The schema of mutual checks did not contribute to the achievement of political equilibrium – rather, it appears to be at least partly responsible for the region’s recurrent cycles of political crises and democratic breakdowns.

5.

SOCIAL CONSTITUTIONALISM/SOCIAL AUTHORITARIANISM (1917–1950)

During the twentieth century, and since the enactment of the 1917 Mexican Constitution (which followed the radical 1910 Mexican Revolution), most Latin American countries advanced profound constitutional reforms. Not surprisingly, the organisation of powers of these modified constitutions remained basically unchanged: what those documents mainly changed, instead, was their declaration of rights. Since that time, in fact, social, economic and cultural rights were added on top of the traditional list of liberal rights. This was, in the end, a new exercise of the traditional ‘accumulation’ strategy. Constitutions such as those of Brazil (1937); Bolivia (1938); Cuba (1940); Ecuador (1945); Argentina (1949); or Costa Rica (1949) illustrate this move towards what has usually been called social constitutionalism.14 In this way, most Latin American constitutions became divided into two very different parts. On the one hand – as we have examined already – Latin Americans kept an organisation of powers that was shaped according to the needs, ideals and presumptions that prevailed during the mid-nineteenth century. Those prevailing assumptions mainly included an elitist political view, related to a narrow approach to democracy. Those constitutions proposed the adoption of organisations of powers that limited rather than encouraged political participation; favoured the inclusion of endogenous rather than exogenous (or popular) controls or accountability systems; and conceived of political representatives as completely independent from their voters, rather than dependent upon the people’s will. In sum, in what concerns the system of organising powers that they established, Latin American constitutions continued to reflect, as they still do, a rather elitist approach to democracy.15 On the other hand, those constitutions that were enacted during the period of ‘social constitutionalism’ introduced substantial changes in the old declarations of rights. The result of this peculiar legal development – old-style organisation of powers, renewed and advanced declaration of rights – helped to further empower the Executive Powers of the region. Latin American By the end of the twentieth century, numerous constitutions incorporated, usually for the first time, long lists of human rights, Indigenous rights, and the rights of minority groups. Constitutions like those of Colombia (1991), Venezuela (1999), Ecuador (2008) or Bolivia (2009) illustrate the latest achievements of this new wave of constitutional changes. These reforms have frequently been described as the bases of the so-called New Latin American Constitutionalism. See Pisarello (2011); Viciano Pastor & Dalmau (2011). Again, what we find here are new expressions of the ‘bundling’ or ‘accumulation strategy’, through which a new list of multicultural and human rights was added on top of the old (already expanded) list of rights, which remained still unchanged. 15 See Gargarella (2010) and Gargarella (2013). 14

222  Research handbook on the politics of constitutional law hyper-presidents found in this way a constitutional authorisation and encouragement to adopt and develop social policies – something that they actually did, with relative independence from any decision of Congress. Given this renewed role of the President, the Legislative Branch, in most Latin American countries, became transformed – more and more clearly – into mere ‘appendages’ of very powerful Executives. The ‘force and will’ (to which Alexander Hamilton referred in Federalist Paper 78) – in other word, the ‘sword’ and the ‘purse’ – both came under the actual control of the President. A new institutional model, which we could call ‘social authoritarianism’ was beginning to take shape. The two main examples of such development – which was repeated in most of the countries in the region – are those of Argentina and Brazil. In Argentina, Juan Perón – a military leader who had participated in the 1943 military coup – was elected as President in 1945, and from his government put in practice some unprecedented social reforms, while establishing severe limitation to basic liberal rights. He also promoted a profound constitutional reform, through his social and nationalistic 1949 Constitution.16 Something similar happened during the same time in Brazil, through the coming to power of Getulio Vargas. Vargas, like Perón, also promoted significant social reforms, through the means that were typical of a dictatorial government. The 1937 Constitution that he promoted had clear authoritarian features.17 The cases of Perón and Vargas are interesting, because they epitomise a tendency of social authoritarianism, which was enormously influential in the region in the post-War period.

16 Arturo Sampay was then one of the most influential legal thinkers in Peronism, and the decisive intellectual figure behind the Peronist 1949 Constitution. Sampay was also a harsh critic of liberalism and thus of the old 1853 Constitution, which he described as an unacceptably liberal document, improperly favourable to laissez faire as a consequence of the influence of Alberdi’s ideological preferences. According to Sampay, the new Constitution had to abandon the ‘(absurd) modern mistakes of autonomy and naturalism in economic sciences’. See Sampay (1944), 81. Sampay proposed embracing a different, anti-individualist view, based on the intervention of the State in the economy, and directed at achieving the ‘common good’. In addition, his philosophy was clearly influenced by the Vatican’s Social Doctrine and the value of ‘social justice’ (which was interpreted according to the views of the Catholic Church). Also, during those years, Sampay advocated for the importance of concentrating power in the Executive. According to him, ‘historical experience demonstrates that the weakness of the Executive and the atomisation of power in Parliament open the path to totalitarianism, which can be seen as a reaction against the political system’s incapacity to act, in a moment where it was important to have a strong State intervening in the economic, social and cultural domains’ See Sampay (1975), 489–90. Thirty years later, however, he would move to the radical left and repudiate the contribution he had made to the concentrations of powers, through the 1949 Constitution. 17 The main ideologist behind the 1937, authoritarian Constitution, was Francisco Campos, who had worked as the Minister of Justice during Vargas dictatorship. Campos was also known as the Brazilian Carl Schmitt. See Dos Santos (2007). The jurist seemed little sympathetic with democracy, and openly resistant to liberal constitutionalism, an ideology that, in his opinion, ‘made government impossible’. Notably, in his work Estado Nacional, Campos developed his views on the topic, and stated: ‘The political regime of the masses is a dictatorship … People always ask for their own Caesar.’ See Bercovici (2008), 390, in História do direito em perspectiva. Do Antigo Regime à Modernidad (Curitiba: Juruá Editora, 2008). Together with other noted jurists, such as Oliveira Viana (who at one point even defended racist and eugenisic policies), or the influential Alberto Torres (author of significant works, such as O Problema Nacional Brasileiro or Organizacao Nacional), Campos advanced a legal approach that defended the concentration of power, with arguments in favour of a ‘substantive’ and plebiscitarian democracy (dos Santos 2007). Their views represented a renewed approach to constitutionalism, which wanted to leave behind the legacy of the 1891 Constitution. This reactive approach was characterised by its anti-liberal; anti-idealistic; and anti-democratic features. See Da Silva (2011).

The gradual creation of a Leviathan  223 Those regimes included authoritarian and democratic elements; had strong links with both the Catholic Church and the Army Forces; promoted significant social reforms; and enacted new ‘social constitutions’ – constitutions that typically incorporated social rights; recognised the rights of trade unions and collective organisations; nationalised natural resources; and dedicated a special section to the organisation of the ‘family,’ in agreement with the increasingly influential ‘social doctrine’ of the Church.

6.

STRONG PRESIDENTS, WEAK CONGRESSES, AND DEMOCRATIC INSTABILITY

The combination of powerful Presidents, weak Congresses and, also frequently, a politically dependent judiciary (a crucial institutional development that I will not be able to examine with detail in this chapter), seems at least in part responsible for the gradual deterioration of the region’s institutional system. More specifically, the concentration of powers and expectations in one person – the President –; the absence of institutional ‘safety valves’; the rigidity of the presidentialist system (i.e., long and fixed terms of mandate); the zero-sum dynamic that was thus generated between the government and the opposition, have been usually mentioned as institutional elements that contributed to the frequent democratic breakdowns that occurred in the region during the twentieth century.18 In fact, and in spite of the existence of different approaches and different and changing views on the matter, the literature seems to be quite specific in this regard: Latin American constitutions have not helped to prevent those democratic crises and are at least in part responsible of their emergence. Let me summarise the dramatic story of democratic breakdowns that took place in Latin America during the second half of the twentieth century, in the following way: In 1940, only Chile was a fully democratic country (assuming a minimalist approach to democracy). After World War II, there was a brief period of political liberalisation and democratisation, but the coming of the Cold War prevented the development of this period of democratic openness. Democracy broke down in Venezuela in 1948 and in Guatemala in 1954. After the 1954 coup in Guatemala, only Chile, Costa Rica, and Uruguay remained as liberal democracies. In 1958 a new wave of democratisation began, although the coming of the Cuban revolution deeply changed the political life in the region. At this time of political tensions and polarisations, the region began to witness again a succession of democratic breakdowns. There were military coups in Peru in 1962, Bolivia and Brazil in 1964, Argentina in 1966 (a new and more radical military coup in 1976), and Chile and Uruguay in 1973. By 1977 only Colombia, Costa Rica, and Venezuela were democratic. Then the cycle began to change again, after the defeat of Argentina’s military Junta in 1982, in the Falklands/Malvinas war. By 1994 no authoritarian governments except Cuba and Haiti remained.19 The twentieth century in Latin America can consequently be considered both the century of democracy and of military coups. The oscillation between democratic and non-democratic governments during almost the entire century represents another crucial showing of a recur-

A summary of those debates in Carlos Nino (1999). See also e.g. Linz (1978); Lijphart (1977); Linz & Valenzuela, comps. (1994). 19 This summary is based on Mainwaring (1999). 18

224  Research handbook on the politics of constitutional law rent pattern: the expansion and reversion of political and civil liberties that characterised the region’s history.

7.

‘DEMOCRATIC EROSION’ AS AN ‘OLD NOVELTY’

The thread that runs through this chapter involves the imbalance generated within the system of ‘checks and balances’ by the presence of super-powerful executives (‘hyper-presidentialism’). In many Latin American countries the evolution over time of hyper-presidentialism has led to crisis for the entire system of balances conceived by the original liberal constitutional thinkers. The serious political difficulties generated by this institutional development can be immediately related to a phenomenon that contemporary comparative doctrine has identified as that of ‘democratic erosion’. The idea of ‘democratic erosion’ refers to a system of institutional controls that has been gradually ‘dismantled from within’. Introducing this view, Tom Ginsburg and Aziz Huq have rightly recognised that ‘the most formidable motor of erosion [of the entire institutional system] would be the presidency’.20 This gradual and growing deterioration of the system of checks and balances provokes a slow erosion of the democratic system, distinct from the ‘old’, more ‘classic’ and sadly swift processes of ‘abrupt rupture’ or fast democratic breakdown, as was the typical case of Latin America’s twentieth century coups d’état. However, and recalling our previous analysis about the growth of Latin American constitutionalism, we should recognise these developments (i.e., the emergence of ‘imperial presidencies’ and the dismantle of internal controls) to be much less an unfortunate novelty of our time than the unfolding expression of a poorly designed institutional system. In fact, this phenomenon did not originate with Trump, Orban, or Erdogan, nor is it the product of this era. The difficulties that we can identify nowadays (i.e., a system of controls that is being gradually undermined from within) have been present in Latin America for a long time – not merely for dozens of years (from the time in which political scientists like O’Donnell spoke of the ‘slow death’ of democracy, for example), but at least since the beginning of constitutionalism.21 It was then that the foundations of an institutional system that discourages civic participation and favours concentrated power were laid. In other words, the ‘new’ or ‘contemporary’ phenomenon of ‘democratic erosion’ represents an ‘old novelty’ in Latin America. For centuries, we have been witnessing the slow, unfortunate, coming of age of the Leviathan our constitutional framers created. It is true that, at the present time, coups d’etat (the ‘sudden death’ of democracy) are less frequent (the ‘slow death’ of democracy is more common) than in the twentieth century. However, this fact seems not due to recent changes that occurred at the level of the Executive Branch (say, the development of ‘imperial presidencies’, as Bruce Ackerman would put it).22 It is a fact that, presently, it seems more difficult (or less convenient or ‘efficient’, for the dominant sectors) to carry out a military coup, but the truth is that the socio-economic bases of democratic instability (i.e., the existence of profound inequalities) and its main institutional sources (an unbalanced system of checks and balances, as I suggested) remain the same.

Ginsburg & Huq (2018), 141. See O’Donnell (2010). 22 Ackerman (2007); Ackerman (2010). 20 21

The gradual creation of a Leviathan  225

8.

REACTIVE LEGISLATURES AND HYPER-PRESIDENTIALISM

More than a recent process of ‘democratic erosion’ – one could claim – Latin America went through a long and gradual period of constitutional deterioration, which had its origin in the very ‘founding period’ of regional constitutionalism. As we have already examined, this historical development generated institutionally unattractive results: a political power concentrated in the Executive, namely hyper-presidentialism; a very weak Congress; a Judicial Power often dependent on politics; a very fragile system of ‘endogenous’ controls; an ‘unbalanced’ system of ‘checks and balances’; and of course more. If we focus our attention on the relationship between the Executive and Legislative branches in most Latin American countries, what we find is a degraded, but well-consolidated hyper-presidentialist system. Within this schema, Presidents often find the way to impose their own views without having to deal with a Congress determined to take an active role in the decision-making process, nor with a Legislative Branch willing or able to obstruct their initiatives. Political scientists Gary Cox and Scott Morgenstern maintained a similar idea in the conclusion they wrote for the comparative book Legislative Politics in Latin America, which explores the relationship between the Executive and Legislative branches in the region. They stated: Presidential systems typically require both the assembly and the president to assent to new statutes. In practice, however, one often finds that Latin American systems either have no effective separation of powers (subservient assemblies) or allow their presidents to make laws without having to go through the statutory process (imperial presidents). Both of these outcomes correspond to natural strategies of the executive that the Latin American systems have not been able to control. The separation of powers inherent in presidentialism is supposed to force bargaining and compromise; yet in Latin America it does not because the president can often act unilaterally or has succeeded in securing political mastery over what would otherwise be a formidable opponent. If one compares Latin American presidentialism to the U.S. model (including the states), one finds a greater frequency of imperial presidents, with more of these presidents pushing so hard as to topple the democratic regime.23 According to this view, Latin American legislatures can be characterised as more ‘reactive’ than ‘proactive’, and thus distinguished from the case of the US Congress.24 This is also the conclusion of Scott Morgenstern’s own work on the matter. For him, as a result of different legislator goals, constitutional power endowments, party arrangements, and other factors, the legislatures’ structure and function are quite different from the proactive U.S.

Cox & Morgenstern (1998), 1. They maintain that ‘an important role in the legislative process does not always require proactive powers – the ability to initiate legislation and set the agenda. It should also stem from the ability to shape or kill executive proposals. These reactive powers, which seem to characterise the Latin American cases, invite anticipation by the president. If he finds it costly to dispense enough pork to buy every vote, or enough patronage to buy every legislator, or enough money to buy the election; and if it is costly also to rule by decree; then even authoritarian presidents should consider cutting a deal with the assembly. In our four cases there is substantial evidence that the legislatures are primarily reactive’ (ibid, 2). 23 24

226  Research handbook on the politics of constitutional law Congress. Even within this generally ‘reactive’ category, the Latin American legislatures also differ amongst themselves, filling a typology that ranges from subservient to recalcitrant.25

The serious problem posed by these developments is that these (merely) ‘reactive’ legislatures are not able to fulfill the democratic purposes that justified their creation in the first place. In fact, the Legislative Branch was supposed to express the ‘voice of the people’ and represent the ‘sovereign will’. As such, its body was expected to contain the diversity of viewpoints and demands that are typical in multicultural societies, while its members were expected to lead the decision-making process, so as to make it genuinely democratic. Finally, the laws – one may reasonably claim – had to embody the needs of the people at large, who had to be able to identify with their content and spirit. Unfortunately, however, all these significant democratic goals have been undermined by an institutional system that, from its origins, favoured instead the concentration of economic and political power. The constitutional Leviathan that we (still) find in most Latin American societies is the product of numerous regrettable factors but also, without hesitation, a major design error.

REFERENCES Ackerman, Bruce. The Decline and Fall of the American Republic (Harvard University Press, 2010). Ackerman, Bruce. The Failure of the Founding Fathers: Jefferson, Marshall and the Rise of Presidential Democracy (Belknap Press, 2007). Alberdi, Juan Bautista. Bases y puntos de partida para la organización política de la República Argentina (Plus Ultra: 1st published 1852, 1981 edition). Bercovici, Gilberto. ‘Tentativa de instituiçâo da democracia de massas no Brasil: instabilidade constitucional e directos sociais na era Vargas (1930–1960)’ in História do direito em perspectiva. Do Antigo Regime à Modernidad (Juruá Editora, 2008). Bolívar, Simón. Doctrina del Libertador (Biblioteca Ayacucho, 1976). Breña, Roberto. El primer liberalismo español y los procesos de emancipación de América, 1808–1824 (El Colegio de México, 2006). Calmón, Pedro. Historia de Brasil (BR J Olympio, 1959), vol. 4. Collier, Simon. Ideas and Politics of Chilean Independence (Cambridge University Press, 1967). Cox, Gary & Scott Morgenstern, ‘Reactive Assemblies and Proactive Presidents: A Typology of Latin American Presidents and Legislatures,’ Paper prepared for delivery at the 21st International Congress of the Latin American Studies Association, The Palmer House Hilton Hotel, Chicago, 24–26 September (1998), 1 (on file with the author). Da Silva, Virgilio. ‘Ideas e institucois constitutionais do século xx no Brasil’ in D. Valadés et al. (eds) Ideas e instituciones constitucionales en el siglo XX (Siglo XXI, 2011). Dos Santos, Rubén. (2007). ‘Francisco Campos e os Fundamentos do Constitucionalismo Antiliberal no Brasil,’ Rio de Janeiro, Dados, 50: 281–323. Gargarella, Roberto. Latin American Constitutionalism, 1810–2010 (Oxford University Press, 2013). Gargarella, Roberto. The Legal Foundations of Inequality (Cambridge University Press, 2010). Gilmore, Robert. (1956). ‘Nueva Granada’s Socialist Mirage,’ The Hispanic American Historical Review 36: 190–210. Ginsburg, Tom & Aziz Huq. How to Save a Constitutional Democracy (University of Chicago Press, 2018).

Morgenstern (2002), ‘Explaining Legislative Politics in Latin America’ in Scott Morgenstern & Benito Nacif, (eds) Legislative Politics in Latin America (Cambridge: Cambridge University Press, 2002) 444. 25

The gradual creation of a Leviathan  227 Gootenberg, Paul. ‘Imagining Development. Economic Ideas in Peru’s ‘Fictious Prosperity’ of Guano, 1840–1880’ in J. Love & N. Jacobsen, Guiding the Invisible Hand. Economic Liberalism and the State in Latin America History (Praeger, 1993). Graber, Mark, Sanford Levinson & Mark Tushnet (eds) Constitutional Democracy in Crisis? (Oxford University Press, 2018). Landau, David. (2013). ‘Abusive Constitutionalism,’ UC Davis Law Review 47: 189–260. Lerner, Hanna. ‘Constituent Assemblies and Political Continuity in Divided Societies’ in Jon Elster, Roberto Gargarella et al., Constituent Assemblies (Cambridge University Press, 2018). Levitsky, Steven & Daniel Ziblatt. How Democracies Die (Crown, 2018). Levitsky, Steven & Lucian Way. (2002). ‘Elections Without Democracy. The Rise of Competitive Authoritarianism,’ Journal of Democracy 13: 51–65. Lijphart, Arend. Democracy in Plural Societies (Yale University Press, 1977). Linz, Juan & Arturo Valenzuela, comps., The Failure of Presidential Democracy (John Hopkins University Press, 1994). Linz, Juan. The Breakdown of Democratic Regimes (Johns Hopkins University Press, 1978). Mainwaring, Scott. ‘Democratic survivability in Latin America,’ (1999) Kellogg Institute, Working Paper (1999), 9–11, available at https://​kellogg​.nd​.edu/​sites/​default/​files/​old​_files/​documents/​267​ .pdf. Mendes, Gilberto et al. Curso de Direito Constitucional (Editora Saraiva, 2008). Morgenstern, Scott. ‘Explaining Legislative Politics in Latin America’ in Scott Morgenstern & Benito Nacif (eds) Legislative Politics in Latin America (Cambridge University Press, 2002). Nino, Carlos Santiago. The Constitution of Deliberative Democracy (Yale University Press, 1999). O’Donnell, Guillermo. Democracia, agencia y Estado. Teoría con intención comparativa (Prometeo, 2010). Pisarello, Gerardo. Un largo termidor. Historia y crítica del constitucionalismo antidemocrático (Corte Constitucional del Ecuador, 2011). Romero, José Luis. El pensamiento político de la derecha latinoamericana (Paidós, 1970). Safford, Frank. ‘Politics, Ideology and Society in Post-Independence Spanish America’ in Leslie Bethell (ed) The Cambridge History of Latin America, vol. 3 (Cambridge University Press, 1985). Sampay, Arturo. La filosofía del iluminismo y la Constitución Argentina de 1853 (Depalma, 1944). Sampay, Arturo. Las Constituciones de la Argentina, 1810–1972 (EUDEBA, 1975). Sunstein, Cass. (1996). ‘The Supreme Court 1995 Term: Foreword: Leaving Things Undecided,’ Harvard Law Review 110: 4–101. Sunstein, Cass. One Case at a Time (Harvard University Press, 2001). Viciano Pastor, Roberto & Rubén Martínez Dalmau. (2011). ‘El nuevo constitucionalismo latinoamericano: Fundamentos para una construcción doctrinal,’ Revista General de Derecho Público Comparado 9: 1–24.

14. Constitutional politics of federalism in Latin America1 Juan F. González Bertomeu

1.

INTRODUCTION: FEDERALISM AND COVID-19

As COVID-19 hit Latin America, the responses from the national leaders in Argentina, Brazil, and Mexico, the three largest federal systems in the region that this chapter studies, were varied. Argentina’s national government enacted a nationwide lockdown and a nonnegligible cash transfer programme. Some of the country’s governors introduced additional benefits (Behrend and Karamaneff 2021) and adopted further precautionary measures, but uniformity was high. In Brazil, the extreme right-wing government of J. Bolsonaro glaringly underestimated the pandemic and took a tepid stance concerning health safety, prompting subnational and local governments to act more aggressively (VanDusky-Allen et al. 2020; ECLAC 2020), a contentious chapter that included episodes of judicialisation (Peluso and Bustamante 2020). At the same time, Congress authorised the implementation of a very ambitious assistance programme (ECLAC 2020). In Mexico, President Lopez Obrador was also hesitant to adopt nationwide protective measures, which triggered initial action by governors of opposition parties. But, unlike in Brazil, the government also refused to fund a safety net. This array of responses partly illustrates a familiar tradeoff in federal systems since intergovernmental coordination and conflict are ingrained in them. According to Riker’s canonical definition, a federal system is ‘a political organization in which the activities of government are divided between regional governments and a central government in such a way that each kind of government has some activities on which it makes final decisions’ (Riker 1975, 101; Volden 2004). Cooperative multilayered relations allow the national government to tackle national concerns in coordination with subnational governments while reserving the latter a space of autonomy. Coordination entails both the involvement of each level of government and the absence of unilateral imposition. Abrucio et al. (2020) have described the Brazilian system since the enactment of the 1988 Constitution until the ascent of J. Bolsonaro in this way. They rightly condemn Bolsonaro for embracing a conflictual view of federalism, entailing both the central government’s neoliberal relinquishment of its responsibility addressing nationwide problems and an authoritarian centralisation of power that refuses dialogue with the periphery (Abrucio et al. 2020, 669). Still, in scenarios like Bolsonaro’s Brazil, federalism’s dispersion of power can be positive. Due to its multilayered nature, federalism reserves an institutional space for conflict when meaningful cooperation is lacking or even ill-advised. If a national government is not up to its task, subnational governments do well to resist the recalcitrant centre or act in its absence (Samuels and Abrucio 2000, 43–44). The reverse is also true. When a serious problem is locally created, conflict by way of central intervention is to be expected and championed, 1



The discussion of Argentina partly relies on González-Bertomeu (2008 and 2021).

228

Constitutional politics of federalism in Latin America  229 although it will face steeper institutional limitations. Only if attainable is coordination rather than conflict preferable. Federalism balances national policy-making with the dispersion of power entailed by the subnational governments’ autonomy. Autonomy is often the product of historical processes, but it has been defended to prevent abuse from the centre, boost local participation, stimulate policy experimentation, and create efficiencies in the provision of services. Yet, in this, the balance is always a fragile one, much more so in democracies that are still not fully consolidated like the three this chapter studies. To some degree, centralist rule in the past limited such autonomy, thus justifying centrifugal regionalisation. However, a strong emphasis on subnational autonomy may hamper national efforts to address both socioeconomic disparities and serious local challenges, including, in the extreme, the ominous spectre of state capture by organised crime. Federalism in the three countries possibly gives excessive voice to the periphery in some matters and too little voice in others and features strong asymmetries across subnational levels of government. In comparison with the average federal system outside Latin America, the three countries’ systems are doubtless more tilted towards the centre (Durazo Hermann et al. 2009, 520), with a consensus formed around the notion that Brazil is the least centralised concerning key matters. Now, a degree of decentralisation can be found outside federal systems in the region and a growing literature has tackled this (e.g., Eaton 2020; Falleti 2010). Some even dispute that the federal-unitary dichotomy is still meaningful (Arretche 2021).

2. ORIGINS By territory, Brazil, Argentina, and Mexico are, in that order, the three largest nations in Latin America. ‘Brazil can accommodate two Western Europes’, ‘Argentina is the size of five Frances, the largest country in western Europe’ (Mazzuca 2021, 3), and Mexico is the size of three and a half Frances. Expectedly, their federalism partly stems from that fact – e.g., J.B. Alberdi, an Argentine lawyer who exerted influence on the 1853 Constitution, was explicit about it. The sheer size of the countries’ territories and the hardships of travel and communication at the time of state formation made ruling exclusively from the centre inexpedient in the long run (Mazzuca 2021). In the early nineteenth century, after the Napoleonic invasion of the Iberian Peninsula, the Portuguese royal court sought refuge in Brazil, its main colony. In 1821, King João VI returned to Europe, but his regent son (the future Pedro I of Brazil) stayed and, in 1822, declared the country’s independence with Portugal’s acquiescence (Rosenn 2005, 577; Mazzuca 2021, 55–56). This was an anomaly compared to the brutal independence wars fought in the other two countries (Souza 2005). Although some regions rebelled in the 1830s and 1840s, the Empire of Brazil’s capital, the strong Rio de Janeiro, and its central rulers managed to overcome them (Mazzuca 2021, 228, 231, 236–38). By the late nineteenth century, the governors of Minas Gerais and São Paulo ‘dominated national politics’ (Samuels and Abrucio 2000, 44). Federalism was established in 1889–1891 after a military coup against a dwindling Brazilian empire featuring 20 provinces that had been created by the latter (Souza 2005, 78; Rosenn 2005, 578). It was a reaction against the empire’s centralism (Rosenn 2005, 578). Brazil now has 27 ‘federative units’, 26 states plus the Federal District (Brasília).

230  Research handbook on the politics of constitutional law Brazil departs from Riker’s (criticised) catch-all explanation of sovereign entities ‘coming together’ since the country had been a unitary nation from before independence and federalism was instituted following a military coup (Stepan 2000, 154–55; Rosenn 2005, 578). After experimenting with several constitutions and political regimes, including Getulio Vargas’ centralising 1937 Constitution of the ‘Estado Novo’, the country underwent a similar reaction against the centralism of the military dictatorship which ruled from 1964 to 1985 (Souza 2005, 83). The Constitution of 1988 was the output of a strongly participatory two-year process (Souza 2005, 81–82), a ‘democratic and pluralistic moment’ (Benvindo 2016). Among the traits it deems unamendable is federalism. Argentina occupies a territory that partly belonged to the Viceroyalty of the Río de la Plata, created in 1776 after the division of the Viceroyalty of Perú. Upon gaining independence from Spain (1810–1816), the territory witnessed failed attempts at establishing a centralist constitution, in 1819 and 1826. These attempts revealed the dominant role played by the city port of Buenos Aires, whose confrontation with the interior provinces would characterise political life. After a period of anarchy and internecine wars, with Buenos Aires (a city and a province before 1880) demanding centralisation and afterward holding the banner of federalism under J.M. de Rosas but postponing unification, the country gave itself a federal constitution in 1853. Yet Buenos Aires refused to take part in discussions and succeeded. The country was unified under a constitution in 1860–61 when Buenos Aires joined the other provinces after inconclusive battles and further constitutional concessions in the form of decentralisation. While Riker’s ‘coming together’ explanation has a better fit in Argentina, Gibson and Falleti have claimed that the trajectory the country followed included a complex ‘interprovincial conflict dimension’ (Gibson and Falleti 2004). The authors describe how Buenos Aires’s stance changed within three decades from promoting centralisation to demanding decentralisation, and how the provinces flipped in the opposite direction since they had perceived that a strong national government was a guarantee against Buenos Aires’ hegemony (Gibson and Falleti 2004). Argentina today features 23 provinces plus the autonomous Buenos Aires City, the country’s capital encircled by the namesake province. In Mexico, the Viceroyalty of New Spain had created intendancies that partly overlapped with today’s states. In 1824, after a brief experience with the self-proclaimed empire of A. de Iturbide following independence, the states jointly adopted a form of federalism in a Constitutive Act shortly afterward ratified by a constitution. Federalism was all but abolished in 1835 but was reestablished in 1847. Both the liberal-oriented Constitution of 1857 and the subsequent Constitution of 1917 preserved it, the former featuring a unicameral legislature until 1874. Compared to Brazil and Argentina, which experienced less variation, Mexico underwent heavy territorial losses. This began in the 1820s with the secession of Central America, which had briefly joined the empire, and continued in the 1840s with the annexation of Texas to the United States and, after the war this provoked, the loss of 55 per cent of the territory to the United States (including all or part of today’s Arizona, Colorado, New Mexico, California, Nevada, and Utah) (National Archives). The centralist-federalist cleavage, which was very prominent in the 1830s, was replaced, starting in the 1840s, by the conservative-liberal division (Mazzuca 2021, 292–305). Like in Brazil, though, Mexican liberals tended to favour federalism while conservatives tended to defend centralism (Mazzuca 2021, 242, 291–92). Mexico has 32 ‘federative entities’, 31 states plus the state-like Mexico City, the country’s capital. It partly followed the ‘coming-together’ model, though this did not prevent territorial losses.

Constitutional politics of federalism in Latin America  231 By subunits’ density, the population is less evenly distributed in Brazil. Yet, by subunits’ population, differences are the largest in Argentina, where the Buenos Aires province (11 per cent of the country’s area) houses around 39 per cent of the country’s population. São Paulo and Mexico State are the most populated states in Brazil and Mexico, housing around 22 and 13 per cent of the population, respectively.

3.

BASIC INSTITUTIONS

The three countries are presidential systems and feature a bicameral Congress. More attention is devoted to the Senate than to other institutions since the subunits’ interests are most directly represented therein in national policymaking, but state and local government and arbitration authorities are also reviewed afterward. All in all, regulations are less detailed in Argentina, where, partly because of the infrequency of amendments, the constitution has 10 per cent of the number of words of the verbose Mexican Constitution, a mammoth at around 126,000 words including transitory provisions (Pou and Pozas-Loyo 2019, 228). (The Brazilian text is in between.) 3.1

The Senate

In Brazil and Argentina, the US model of parity of subnational governments’ representation is still followed since each subunit as a whole elects three senators by simple majority. Apart from this, Mexico has one-quarter (32) of all senators elected by proportional representation from single national lists. The Brazilian Senate was created in 1824 as an aristocratic body. Under the 1988 Constitution, senators serve for eight years. Every four years, either one-third or two-thirds of each federative unit’s representation is up for election (Souza 2005). In Argentina, senators were selected by local legislatures until 1994; a third senator was added that year to promote pluralism. Senators serve a six-year tenure and are elected from party lists – two go to the plurality and the third to the second most-voted party. The Senate is renewed by thirds every two years. Based on both equal representation and dramatic differences in the provinces’ population, the Argentina Senate is the most malapportioned upper chamber in the world, followed by Brazil (Samuels and Snyder 2001). With a brief interlude (1857–1874), a Senate has also operated in Mexico since 1824. Today, it shares the 2–1 Argentine model of seat assignment according to electoral yield, a 3–1 distribution from 1993 to 1996. But an amendment in 1996 added 32 senators elected from a single list, a quarter of the total. This measure – debated in the country since it introduced a discontinuity in both the parity principle and the notion that senators represent states’ interests – was one of several implemented during the transition after decades of PRI-rule to promote pluralism (Negretto 2006, 377–78; Durazo Hermann et al. 2009, 519). (In the lower house, for example, a party cannot have more than 60 per cent of seats.) Senators serve for six years, and there is no staggered renewal. Senators in both Brazil and Argentina can be reelected indefinitely, but the reelection rate in the latter has been low at around 20 per cent compared to around 45–60 per cent in the former (Caturla 2006; Legislatina). The ban on immediate reelection in Mexico has long been heralded as a key political principle after the rigged reelections of Porfirio Díaz, who himself

232  Research handbook on the politics of constitutional law had come to power denouncing an attempt to reelect S. Lerdo in 1876. While the ban is still in place for the presidency, an amendment in 2014 lifted it for senators, who can be reelected once, and for lower house members, who can be reelected three times, subject to conditions. An Argentine statute from 1991 demanded that at least 30 per cent of elected positions be filled with women, and, in 2017, a gender parity law was enacted. As of 2020, both houses featured around 40 per cent of women. Brazil introduced in 1997 a 30-per cent threshold for candidates, but women accounted for 17 per cent of the Senate and 15 per cent of the lower house as of 2020. In 2014, Mexico enacted a gender-parity amendment for official positions, requiring, like in Argentina, that parties arrange their lists accordingly. Both houses now have virtually the same number of men and women. 3.2 States Both the Brazilian and the Mexican Constitutions include detailed provisions concerning subnational governments, which generates some uniformity. (Despite this, the Mexican Constitution declares that the states are sovereign in their internal affairs.) Subnational constitutions further regulate the minutiae of institutional arrangements. The sparser Argentine Constitution largely leaves matters to be decided by the subunits’ constitutions. The following arrangements come from the federal constitutions. Brazilian state legislatures are unicameral, and the constitution sets the number of legislators in (indirect) proportion to the members in the federal lower house. Both legislators and governors serve four-year terms and are elected concurrently with the president (Souza 2005, 85). Under the 1964–1985 dictatorship, and until 1982, governors were directly appointed by the regime (Falleti 2010, 157–162),2 which also happened in Argentina during the more frequent but shorter experiences with military rule. Mexican governors serve for (up to) six years and cannot be reelected. Since 2019, both presidents and governors can be recalled. Legislatures are unicameral, and a minimum number of legislators is set according to the state’s population. Legislators can be immediately reelected, up to three times depending on the state constitution. With some exceptions, no party can have a proportion of seats either over or below 8 percentage points of its electoral yield. Lastly, the Argentine Constitution tersely stipulates that the provinces must respect the ‘republican representative system’, the constitution’s declarations and rights, the provision of justice, the municipal regime, and elementary education. One finds therein both unicameral and bicameral legislatures. The three countries regulate the federal ‘intervention’ in state affairs in emergencies including invasion or domestic turmoil. Interventions were often used to rid of opponents. In Argentina, they were very common in the early twentieth century and, while becoming more scattered, they were still used afterward.3

Brazil differed from other dictatorships in the region in that a purged Congress remained in function (Falleti 2010, 157) and selected the president, who came from the ARENA party. 3 Conditions were made stricter in 1994. 2

Constitutional politics of federalism in Latin America  233 3.3

Local government

In the three countries, some municipalities predated the creation of the national state. The Brazilian Constitution assigns them the power to self-govern through an ‘organic law.’ The constitution is very detailed in its regulation of both the number, tenure, and mode of election of officials and expenditure caps, among other issues. Yet it would be misleading to conclude from this that local autonomy is restricted. Such autonomy is most often threatened by subnational governments, not the national government. In its radical decoupling of municipalities from states, the constitution thus clearly empowered the former (Souza 2005, 83–84). Brazilian municipalities are remarkably stronger than municipalities in the other countries – especially Argentina – and represent a relevant site for public service provision, democratic participation, and institutional experimentation (Souza 2005, 93; Souza 2006). In Mexico, the principle of ‘free municipality’ (Municipio Libre) is tied to the revolution and embedded in the 1917 Constitution. The autonomy of municipalities was enhanced in 1983 (Falleti 2010, 191), but its regulation is still mainly the responsibility of subnational governments. State legislatures can, by a special majority, suspend authorities. The constitution also recognises indigenous communities the power to self-govern through a special regime (usos y costumbres) to be regulated by state constitutions. Instances include the Michoacán municipality of Cherán, which, not without conflict with state authorities, has exercised self-government since 2011 to isolate itself from organised crime and state collusion. Local power in Argentina is the weakest. Municipalities heavily depend on subnational governments (Gibson 2012, 78). The constitution more explicitly mandates, since 1994, that provinces respect municipal autonomy. Yet due to the lack of specification, there exist large asymmetries across provinces. Many allow municipalities with a certain minimum population to write their own constitutive rules (an ‘organic law’). A few, however, still feature uniform rules for all its municipalities. Among these is the large Buenos Aires province. 3.4 Arbitration Bednar et al. underscore two necessary conditions for ‘durable federal arrangements’: ‘national forces must be structurally restrained from infringing on the federal bargain’ and ‘provincial temptations to renege on federal arrangements must be checked as well’ (Bednar et al. 2001, 225–26). The Senate, as noted, is one central institution that includes subnational voices at the national stage. Another mechanism is ‘remedial rather than prophylactic’, though, if an outcome can reasonably be predicted, it can deter from infringement – independent courts (Bednar et al. 2001, 232). A court can play this role successfully by ‘establish[ing] and maintain[ing] itself as a neutral broker among the states and between the state and national governments’ (Bednar et al. 2001, 256–57). The top courts in the three countries perform this part to varying degrees. Much like in the United States, however, the advocacy on either side of the federal-subnational boundary is often tinged by political considerations. The Brazilian Federal Supreme Court (STF) adjudicates direct challenges to federal and state laws (in the so-called ADIs) as well as conflicts between subnational governments or between the national government and the latter, among other forms of intervention. State legislatures and governors have standing to bring challenges. Souza explains that governors often have sued to challenge the local legislature rather than to defend the state from federal incursion (Souza 2005, 88). From 1988 to 2015, around 80 per cent of intergovernmental

234  Research handbook on the politics of constitutional law conflicts were decided in favour of the national government (Abrucio et al. 2020, 670). Yet, under Bolsonaro, ‘the STF has clearly decided in favor of sub-national entities’ (Abrucio et al. 2020, 670). In turn, the Superior Tribunal of Justice adjudicates procedures against governors for ordinary crimes. In Argentina, apart from resolving appeals and jurisdictional issues, the Supreme Court freshly hears some legal actions including between subnational governments or between the latter and the national government. The Mexican Supreme Court’s local reach surpasses the other countries. It hears ‘constitutional controversies’ between, among other bodies, the national government and a state, the former and a municipality, two states, two municipalities from different states, two branches within a state, a state and a municipality from within or without, two autonomous institutions within a state, and one such institution and a branch within a state. Also, one-third of a state legislature can challenge its statutes before the Court in a ‘constitutional action’. Mexico is also singular because the federal Congress has impeachment authority over subnational officials including governors for violating the constitution or federal laws, although its decision is ‘declaratory’ and communicated to the local legislature. 3.5

Election supervision

In Brazil, the main election monitoring body, the Superior Electoral Court, is a judicial institution, and below it, one finds regional election courts in each state and the federal district which manage state and local elections. Electoral justice was created in 1932 under the provisional Vargas administration to put an end to fraudulent elections during an oligarchic period but was ‘finally installed’ in 1946 (Fleischer and Barreto 2009, 118, 122). Argentina has a decentralised system that is partly dependent on the executive. Both the National Electoral Chamber (part of the federal judiciary) and an executive agency (the Dirección Nacional Electoral) oversee national elections, whereas state and local elections are the responsibility of state authorities. Mexico also combines administrative and judicial bodies. In charge of the former is the National Electoral Institute (INE), which in 2014 succeeded an exclusively national institution (INE 2022). A remarkable achievement in the transition after decades of single-party rule, yet still much beleaguered, this plural autonomous body has vast powers pertaining to the organisation and monitoring of elections at all levels – in state and local elections, it coordinates with the relevant authorities. Also, an Electoral Tribunal is embedded in the federal judiciary.

4.

DECENTRALISATION, AUTONOMY, AND ASYMMETRIES

This part focuses on the dynamic relationship between layers of government from the administrative and fiscal perspectives, while the next analyses the political. 4.1

Administrative decentralisation

Several authors have highlighted a process of administrative decentralisation – with some subsequent recentralising measures – in the three countries, as well as in some non-federal systems in Latin America, starting ‘in the late 1970s and early 1980s’ (Falleti 2010, 64; Soares and Machado 2020; Díaz Cayeros 2006; Durazo Hermann et al. 2009, 525). The provision

Constitutional politics of federalism in Latin America  235 of services including health and education was gradually transferred from the centre to the periphery, in many cases without enough autonomous resources, creating an asymmetry or ‘vertical imbalance’ (Soares and Machado 2020; Porto et al. 2018; Rodden 2006).4 As administrative decentralisation was either preceded or succeeded by a degree of political and fiscal decentralisation, Falleti, a historical institutionalist, explained these processes in terms of sequences of events (Falleti 2010, 20–24). She posited that, where political decentralisation precedes administrative decentralisation, states and municipalities have more bargaining power to demand funds (Falleti 2010, 18–19). Where, in turn, administrative decentralisation occurs before political and fiscal decentralisation, governors become money-hungry to provide the new services and are deprived of influence for future bargains (Falleti 2010, 18–19). According to Falleti, Brazil illustrates the former type of sequence (Falleti 2010, 150–87). Political decentralisation started in the early 1980s when the waning dictatorship reintroduced the direct election of governors, whose leverage then led to a considerable degree of fiscal autonomy even predating the 1988 Constitution. Starting in the 1990s, municipalities were assigned responsibilities that in the other countries lie with state governments, including the provision of health care and elementary education (Souza 2005, 93; Falleti 2010, 176). Moreover, unlike in the other countries, the demand for administrative decentralisation did not come from the centre but a subnational coalition (Falleti 2010, 171). Indeed, Falleti notes that decentralisation demands in Brazil ‘were imbued with the discourse of democratization’ (Faletti 2010, 185). Falleti views Argentina as an example of administrative decentralisation preceding fiscal and political decentralisation (Falleti 2010, 76–121). The elementary schools in the hands of the national government were transferred in 1978 during the dictatorship and secondary education in 1992, but a boost in revenue sharing only took shape in the late 1980s and political decentralisation (involving Buenos Aires City) only happened in 1994. Decentralisation, according to the author, ‘did not yield a significant increase in the power of governors and mayors’ (Falleti 2010, 29). Falleti sees Mexico as a middle-ground case (Falleti 2010, 56). In Mexico, like in Argentina, decentralisation ‘was initiated by the national executive’, but, unlike in Argentina, it was funded because of the total ‘lack of a state-level system of education’ (Falleti 2010, 52, 189, 205–30). Also, from the 1980s, incipient subnational and local democratisation strengthened the periphery. The combination allowed governors to push for wider fiscal decentralisation, which increased the level of funds they received from the centre (Falleti 2010, 205–30). 4.2

Fiscal decentralisation and autonomy

A portion of originally local or shared taxes in Argentina and Mexico gradually became centralised in the twentieth century in exchange for a distribution scheme of non-earmarked money coupled with other allocations. While a scheme also exists in Brazil – ‘created by the military governments’ and with constitutional recognition in 1988 – the loss of fiscal 4 Falleti (2010, 11–12) cites among the usual explanations of administrative decentralisation the rise of neoliberalism and urbanisation (Samuels 2000). Porto et al. (2018) find that, in Brazil, Colombia, and Peru, decentralisation of expenditures and resources increased with population, though not clearly in Mexico.

236  Research handbook on the politics of constitutional law autonomy by subnational and local governments therein was much less considerable (Díaz Cayeros 2006, 4, 8, 221–22; Rodden 2006, 188). Díaz Cayeros writes that ‘fiscal centralization occurs’ as national leaders ‘protect regional politicians from challengers and electoral threats in exchange for financial resources’ (Díaz Cayeros 2006, 1). He adds that ‘regional politicians are willing to forgo fiscal authority’, although they are initially wary since the national government may ‘exploit their financial dependence’ (Díaz Cayeros 2006, 1–2). Scholars debate as to whether – or to what extent – existing revenue-sharing distributions are affected by partisanship. Also, some measures have been implemented to encourage subnational governments’ fiscal responsibility, most notably in Brazil (Soares and Neiva 2011, 98–100). Note that fiscal decentralisation and fiscal autonomy are not synonymous. The former encompasses the latter but also the usual arrangement under which money is centrally collected and then transferred. Decentralisation can be found in both federal and non-federal systems, but fiscal autonomy – especially at the subnational level – is found in federal systems. Decentralisation without autonomy may allow subnational governments to meet their obligations if funds are sufficient, but it makes the recipient reliant on the centre. Mexico’s subnational governments are the most dependent of all three countries and, on average, Brazil’s are the least (Muñoz et al. 2017, 55). While one observes in Brazil an asymmetry between resources and expenses at the subnational level, the gap is smaller than in the other countries, and the level of fiscal autonomy is higher. Constitutional drafters in 1987–1988 ensured that states and municipal governments kept their autonomy to ‘weaken[] the federal government financially’ (Souza 2005, 94). Around 50 per cent of total expenditures are subnational and municipal, a similar figure to those in the other countries (UCLG and OECD 2016b; Porto et al. 2018, 35; Rodden 2006, 188). The difference is the source of income. One-third of all public income is subnational/ local (Porto et al. 2018, 35; Souza 2005, 94; Rodden 2006, 188). Brazilian states collect an indirect (and regressive) value-added tax representing most of their tax revenue (UCLG and OECD 2016b; Falleti 2010, 170–1; Rodden 2006, 192; Díaz Cayeros 2006, 212–13). Central transfers amount to around 21 per cent of subnational governments’ revenue (Muñoz et al. 2017, 52), with significant variations that will be discussed below. Dependence is higher at the municipal level; municipalities receive earmarked resources but retain some taxing power (UCLG and OECD 2016b; Soares and Neiva 2011, 98–99; Souza 2005, 94). Scholars have noted that, since the mid-1990s, a recentralising trend has increased the level of ‘non-earmarked resources’ available to the central government while increasing the government’s fiscal control over state and municipal authorities (Soares and Neiva 2011, 98–100). In Argentina, 45 per cent of public expenses took place at the subnational and local levels in 2013 (UCLG and OECD 2016a). On average, 60 per cent of subnational revenue comes from central transfers (Muñoz et al. 2017, 52), but the variance is very high. The most dependent provinces receive up to 80–90 per cent of its income from the national government (Ministerio de Hacienda 2019; Suárez Cao 2011, 310; Gervasoni 2010, 311; Porto 2017, 80; Gibson 2012, 79). Around 15 per cent of taxes are collected by the provinces (Porto 2017, 78). The revenue-sharing mechanism was recognised and regulated by a constitutional amendment in 1994. The amendment mandated a new statute setting allocation criteria based on indicators including the level of human development, but it has not been adopted since it requires both a special majority and the provinces’ ratification, a virtually unattainable level of consensus. Municipalities mostly lack the authority to tax and do not take part in the sharing scheme;

Constitutional politics of federalism in Latin America  237 they receive money from subnational governments. This reinforces what Gibson has called the long-lasting ‘hegemony of governors over mayors in provincial life’ (Gibson 2012, 78). Falleti is right that reforms in Mexico have increased transfers, but public resources in the country are still highly centralised. The national government collects 94 per cent of all public resources (Porto et al. 2018, 47). Around 85 per cent of subnational revenue comes from transfers (Muñoz et al. 2017, 52), and this dependence has become evident during the COVID crisis (Béland et al. 2021). Díaz Cayeros rightly says that the lack of autonomy places Mexico (and Argentina) alongside some unitary states (Díaz Cayeros 2006, 4). A fiscal coordination law, amended several times, sets out sharing criteria (Falleti 2010, 221–22). This comprises non-earmarked money in proportion to the states’ economic activity (participaciones or ‘Ramo 28’ of the budget) and mostly earmarked transfers aimed at funding education, health, and infrastructure and alleviating socioeconomic disparities (aportaciones or ‘Ramo 33’) (UCLD and OECD 2016c; Rodríguez Pueblita 2017, 163–64; Falleti 2010, 225). Municipalities receive both, but they get the former through the states. 4.3 Asymmetries Latin American and Caribbean countries have, on average, ‘four times the level of territorial economic disparity of OECD countries’ (Muñoz et al. 2017, 5). A common argument in favour of federalism compared to confederal arrangements is the reduction, through central transfers, of regional imbalances due to differences in productive capacity among areas. All three countries still have a long way to go in this regard. Now, transfers have both a horizontal and a vertical component. Regarding the former, transfers ‘do not compensate disparities,’ but they ‘attenuate them’ (Porto et al. 2018, 30; Muñoz et al. 2017). Even if subnational governments have taxing power, they may vary in terms of their ability to collect, either because of those productive disparities or because of their lower state capacity or their unwillingness to do so. Vertically, however, transfers bring the risk of incentivising the subunit’s dependence and irresponsibility, since a large portion of the funds the subunit receives typically is not earmarked (Rodden 2006, 2–23, 76–80; Gibson 2012, 79; Porto et al. 2018, 12). Gervasoni claims that this happens in a group of small Argentine provinces, which he calls ‘rentier subnational states’ (Gervasoni 2010, 303). More generally, Rodden argues that a national government’s inability to commit not to transfer to, or not to bail out, profligate governments awards fiscal indiscipline (Rodden 2006, 7–8, 75–94).5 Thus, fiscal autonomy minimises dependence and arguably promotes discipline. Yet there is a tradeoff between autonomy and the correction of asymmetries. As the former grows, it makes it increasingly difficult to reduce horizontal disparities since distributable national resources become lower (Porto et al. 2018, 30). The task seems to be to combine a degree of autonomy with transfers that follow objective allocation criteria and are partially subject to compliance indicators. But the latter may affect federal arrangements. Soares and Neiva (2011) found that, in Brazil, ‘a governor’s partisan alignment with … the president’s government coalition’ tends to determine higher allocations for a state, ‘and that states that are overrepresented in the lower chamber are favored’ (Soares and Neiva 2011, 94). But they also noted ‘a redistributive character associated with federal discretionary transfers, 5 However, Saiegh has countered that predictable transfer schemes may not create such incentives (2007).

238  Research handbook on the politics of constitutional law favoring states with lower Human Development Index (HDI) rankings’ (Soares and Neiva 2011, 94). The country features a prosperous southeast and a poor northeast, among other differences. The relative autonomy of subnational and local governments in revenue collection creates the largest asymmetry in the degree of dependence on the national government, ranging from São Paulo state (7 per cent) to the northwestern Acre state (75 per cent) in 1990s figures (Rodden 2006, 193). Rodden found that, in that period, the per capita incomes of the wealthiest states were ‘five times those of the poorest cluster of states’ (Rodden 2006, 193). The VAT collected by states ‘is based on origin rather than destination, which makes it difficult for poor states’ (Rodden 2006, 192). Rodden added that transfer funds have ‘not been successful in combating interstate inequalities’ (Rodden 2006, 193). Still, an IMF working paper found a reduction in inequality (in 2004–2014), ‘including among regions’, and attributed the decline to ‘labor income growth, formalization, and schooling’, but also to redistributive policies ‘such as Bolsa Família’ (Góes and Karpowicz 2017). In Mexico, Esquivel et al. showed that inequality rose during the 1980s and early 1990s but declined in the following years due to the ‘higher relative wages of low-skilled workers’ and the expansion of public transfers, though some transfers are regressive (Esquivel et al. 2010, 210–12). An IMF paper also observed a ‘small decline’ in income inequality over 2004–2016 that may be ‘attributed … to targeted cash transfers’ including the Prospera programme (Lambert and Park 2019), which President López Obrador replaced. Another study concluded that reforms in the 2000s to the revenue-sharing mechanism were in the direction of reducing disparities among the states, though the mechanism still has limitations (Rodríguez Pueblita 2017, 157–58). Yet, an OECD report observed large disparities in regional well-being, with the bottom 20 per cent of regions receiving around 40 per cent of the disposable per capita income the top 20 per cent receives (OECD 2013). In Argentina, another country with wide fiscal disparities (Porto 2017, 99), Gervasoni did not find that general federal transfers were connected to poverty alleviation. Instead, in the period 1992–1995, the less populated a province was, the larger the per capita funds it received regardless of social indicators (Gervasoni 2010, 311). The large Buenos Aires province, with half of all poor people in the country, is a huge loser (Porto 2017, 81; Gervasoni 2010, 321). Revenue-sharing amounts are telling. In 2015, Formosa, in the north, received 26,000 per capita pesos. Buenos Aires, meanwhile, received one-fifth of that, around 5,000 pesos (Sohr 2016). Conditioned transfers fare better. Rossignolo (2017) found that a popular cash transfer programme to improve children’s quality of life and education introduced in 2009 (the Asignación Universal por Hijo) did not clearly alleviate regional inequalities but seemed to help reduce poverty and inequality compared to the period before.

5. POLITICS The three countries present rule of law and accountability deficits that get exacerbated at the subnational level. This is perhaps not surprising. Mazzuca says that ‘[s]tate-formation deals allowed peripheral rulers to secure bastions of patrimonial domination’ (Mazzuca 2021, 9; Durazo Hermann et al. 2009, 526). Writing two decades ago, Samuels and Abrucio remarked that Brazil and Mexico – like other federations ‘in transition’ perhaps including Argentina – faced ‘the problem of how to democratize the center and the periphery concurrently’ (Samuels and Abrucio 2000, 61).

Constitutional politics of federalism in Latin America  239 Because of its multiparty politics and the concomitant fragmentation at the national stage (the lower house featured legislators from over 20 parties as of 2020), Brazil has often been labeled a ‘coalition presidentialism’ (a term coined by Abranches (1988) that Limongi (2007) has criticised).6 The president’s party therein typically does not gather a majority in Congress (Souza 2005, 90). Cabinet appointments have often reflected – at least before Bolsonaro worryingly invited back the military – both ‘party memberships and the state interests of those who support the president’s governing coalition’ (Souza 2005, 84). Coalitions have included a regional element because of ‘the social heterogeneity of the country, federalism, and the power of governors’ (Limongi 2007). In Brazil, scholars have highlighted the influence of governors on national politics through their sway over national legislators from their states (e.g. Samuels and Abrucio 2000, 55). Samuels and Abrucio (2000) have studied the role of subnational actors in the democratic transition. The 1964–1985 military dictatorship attempted to weaken local political elites without complete success, and governors grew stronger after 1982 to the point of becoming ‘veto players’ of national politics (Samuels and Abrucio 2000, 48–56, 59). The authors conclude, however, that low accountability at the subnational level may hamper ‘democratic governability and responsiveness’ (Samuels and Abrucio 2000, 61). In a similar vein, Stepan has argued that a series of traits – including the overrepresentation of states in the Senate, loosely cohesive coalitions often unable to overcome the obstruction of a group of individual senators, and the power devolved to the states – makes the country’s decentralisation too ‘demos-constraining’ (Stepan 2000, 147–54). On the other hand, as noted, the dispersion of power makes it easier to contest the actions taken by the national government, and such contestation at times may strengthen pluralism and democracy. Also, local governance in Brazil seems to allow for a meaningful level of democratic engagement (Souza 2006). In Argentina, some scholars also have underscored the influence of governors over federal legislators from their provinces, whose potential support they use as a bargaining chip with the national government (Saiegh 2004; Ardanaz et al. 2012, 30; Gibson 2012, 104). Others have claimed that, although this influence exists, it is not as high or uniform across the country (Gervasoni and Nazareno 2017). Gibson and Calvo (2000) found that, during the market reforms in the early 1990s, the least developed but overrepresented regions supported the national government in exchange for patronage and spending. They called these regions ‘low-maintenance constituencies’. Both the overrepresentation of the periphery due to the parity in the Senate and malapportionment in the lower house, where states are guaranteed a minimum of five seats and the Buenos Aires province is heavily underrepresented,7 make the construction of a winning coalition virtually dependent upon the ‘support of the regional structures of power in the periphery’ (Gibson and Calvo 2000, 36). Significantly, the ‘economic investment required’ to obtain political support in small, state-dependent provinces is low compared to that required in other regions (Gibson and Calvo 2000, 50). Gibson, for his part, has argued that, since tax revenue (or coparticipación) transfers ‘are delivered directly to provincial governors, who have discretion over their local distribution’,

Parliamentarism has been discussed in the country, which had a fleeting and ‘controversial’ experience with it in 1961 (Corbo and Maderia 2020; Souza 2005, 88). In 1993, the people responded ‘no’ to a referendum question whether to adopt it (Corbo and Maderia 2020). 7 The distribution of seats was established by a rule enacted in 1983 by the outgoing dictatorship, which has not been modified. 6

240  Research handbook on the politics of constitutional law and are unconditional, the transfer system makes subnational governments dependent on funds while freeing governors from dependence (Gibson 2012, 79). Similarly, as noted, Gervasoni claimed that some small provinces receive ‘plentiful central government subsidies and have a weak tax link with local citizens and businesses,’ which reduces accountability (Gervasoni 2010, 303). Hernández Rodríguez (2008) showed that, like in Brazil, Mexican governors gained prominence during democratisation. Under PRI rule (1929–2000), governors were essentially selected by the president as head of the party (Philip 1992, 10; Langston 2006, 146). Their main role was to officiate as the president’s intermediaries to secure peace and pursue federal objectives but they kept a ‘degree of autonomy’ (Gutiérrez-Cuéllar 2016, 74; Hernández-Rodríguez 2008). Both democratisation and decentralisation strengthened governors, although, as in the other countries, this has not necessarily translated into greater accountability (Hernandez-Rodríguez 2008). Gutierrez-Cuéllar claimed that variables including an increase in subnational electoral competition have reined in some governors (Gutiérrez-Cuéllar 2016, 83–89). The strengthening of election monitoring institutions also reduced the chance of manipulation. Others have noted that Mexican governors have been playing some role in national policy making through mechanisms similar to those described in the other countries, but to a much lesser degree (Olmeda 2009, 127–28). The difference is due, in part, to the high level of centralisation of the Mexican party system (Falleti 2010, 15; Olmeda 2009, 115; Nacif 2002). As noted above, parties in Mexico face a constitutional cap on the number of seats to which they can aspire. From 1997 until 2018, when President López Obrador won the presidency, divided government characterised political life as no party or coalition commanded a majority in both houses. 5.1 Rights Although respect for civil, political, or social rights is not fully guaranteed at any level in the countries, some categories of violations are more widespread at the subnational and local levels. These include police violence, a serious concern in the three countries but very acute in Brazil – the states of Rio de Janeiro, Bahia, and São Paulo account for half of 6,416 fatalities in police interactions in 2020 (Fórum 2021) – and Mexico. Other worrying local trends are a degree of state capture by organised crime and scandalously high impunity levels. These present a challenge to federalism as compared to unitary governments. The dispersion of power makes it more feasible to limit and challenge abuses from the centre, but at the same time restricts the legal and political remedies available when abuses originate locally. As parties to the American Convention of Human Rights, the three national governments can be held internationally responsible – which the Inter-American Court has done – for rights violations in the periphery. There is an ongoing debate about the instruments available to a national government to minimise, investigate, and punish such violations.

6.

LEGISLATION AND AMENDMENTS

Leaving aside matters always under the purview of the national congress, such as monetary issues, Argentina and Brazil show higher legal and policy-making centralisation. The national congress in these countries enacts civil, commercial, penal, and labour legislation. In this, they

Constitutional politics of federalism in Latin America  241 approach the Swiss model of uniform codes. Meanwhile, Mexican states enact legislation on civil and criminal matters in their territories. This means that there are 32 state criminal codes in the country plus a federal code, with noticeable differences between them.8 The pluralism of regulations in Mexico may be defended with regards to the experimentation it allows, but many have asked for the unification of legislation. Mexico is also singular because, like in the United States, subnational governments have a voice ratifying a constitutional amendment. Apart from Congress’ approval of a reform by two-thirds of those present, a majority of legislatures (17) must consent to it. These exacting requirements have hardly been an obstacle to amendments. As of 2020, there have been 244 episodes of change – each affecting one or more provisions – to the 1917 Mexican Constitution, around 2.4 a year. The rate increased with democratisation, even though the fall of single-party rule made it more difficult, on paper, to garner a winning coalition (Casar and Marván 2014, 29–44; Pou and Pozas-Loyo 2019, 227–28). In the period 2000–2020, the text was amended on average 4.8 times a year, compared to 4.1 in Brazil. A winning national coalition in Mexico usually features at least two of the three biggest parties. Given a centralised party system, this means that approval by 17 legislatures once approval was secured at the national Congress is all but ensured (Casar and Marván 2014, 38–41).

7.

LATIN AMERICA VS. THE UNITED STATES

The three countries can straightforwardly be compared with the United States, whose institutional architecture inspired theirs to different degrees. Like in Argentina and Brazil, the malapportioned US Senate (fifth in a list of countries’ upper houses, Samuels and Snyder 2001) is most usually identified as a key factor behind the demos-constraining nature of US politics (Stepan 2000, 146) and a source of minority veto to necessary federal action. States in the United States generally have more policy power, including, unlike in Argentina and Mexico, the power to levy and collect taxes. Not unlike in Brazil, however, the tax structure in many states is deeply ‘inequitable’ or regressive, reliant as it is on consumption taxes (ITEP 2018). The most regressive state is Washington State, ‘followed by Texas, Florida, South Dakota, Nevada’ and others (ITEP 2018). Although not so markedly as in Argentina and Brazil, the United States also features asymmetries in the degree that subnational governments are supported by the national government. States are not participants in a revenue-sharing system. But they still rely on the federal money that funds assistance programmes such as Medicaid, social security programmes, and military bases, among other activities (Pew 2014).9 As a result of multiple variables only indirectly including poverty alleviation, per capita federal spending is uneven, with some states (like Virginia and Maryland) receiving twice what others (like Utah, Minnesota, or Illinois) receive.10 Federal spending in states like Mississippi, Virginia, New Mexico, Maine

8 Still, Mexico has recently enacted a single procedural code for federal and non-federal crimes (2014) as well as a unified regulation of prison and detention conditions (2016). 9 Some of these activities are also federally funded in Latin America, a topic that is not explored. 10 Individuals in some states send more tax money to the federal government than what is received back by the states, while the opposite happens in other states. Connecticut, Massachusetts, New York, and New Jersey count among the former in terms of per capita distribution, while Kentucky, Virginia,

242  Research handbook on the politics of constitutional law or Alabama is equivalent to about 30–33 per cent of their GDP while in Wyoming and North Dakota, in the opposite extreme, it is equivalent to about 12 per cent (Pew 2014).11 Like in Latin America, some subnational governments may not be entirely self-reliant. Another similarity is that some of the most serious rights violations – including police brutality, profiling, and other vestiges of structural racism, as well as purposefully-erected barriers to women’s access to reproductive rights – originate locally, and a national government is hard-pressed to cope with them.

8. CONCLUSION This chapter presented the basic structure and functioning of the three largest federations in Latin America. A practice of abuse from the centre – most notably in Brazil and Mexico – justified a trend towards subnational and local autonomy and decentralisation while providing opportunities to bolster innovation and participation. Yet the countries also face serious difficulties that demand coordinated action from the centre – staggering asymmetries, poverty, organised crime, and state violence among the most remarkable. This is compounded by the overrepresentation of small units, which makes it difficult to address some of those problems and further weakens the rule of law. It is not a contradiction to assert, as some have done, that the countries would do well with both more and less federalism.

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Constitutional politics of federalism in Latin America  243 Casar, María Amparo & Ignacio Marván. Reformar sin mayorías. La dinámica del cambio constitucional en México: 1997–2012 (Taurus, 2014). Caturla, Federico. ‘La reelección legislativa no tiene “quórum” en la Argentina’ (Diario El Cronista, 27 March 2006), at: https://​www​.cronista​.com/​impresa​-general/​La​-reeleccion​-legislativa​-no​-tiene​ -quorum​-en​-la​-Argentina​-20060327​-0054​.html. Corbo, Wallace & João Gabriel Maderia Pontes. ‘No Need for a New Constitution in Brazil’ (Verfassungsblog, 31 July 2020). Díaz-Cayeros, Alberto. Federalism, Fiscal Authority, and Centralization in Latin America (Cambridge University Press, 2006). Durazo Herrmann J., Ward A., Ward L. ‘Federalism: The Latin American Experience’ in Ward, Ann and Ware, Lee (eds.). The Ashgate Research Companion to Federalism. (Farnham/Inglaterra: Ashgate. 2009:517–33). Eaton, Kent. (2020). ‘Latin American Politics and the Subnational Comparative Method: Vertical and Horizontal Challenges,’ Latin American Politics and Society 62:3. Esquivel, Gerardo, Nora Lustig & John Scott. ‘Mexico: A Decade of Falling Inequality: Market Forces or State Action?’ in Luis F. López-Calva & Nora Lustig. Declining Inequality in Latin America: A Decade of Progress? (Brookings, 2010) 175–217. Falleti, Tulia G. Decentralization and Subnational Politics in Latin America (Cambridge University Press, 2010). Fleischer, David & Leonardo Barreto. (2009). ‘El impacto de la justicia electoral sobre el sistema político brasileño,’ América Latina Hoy 51: 117–38. Fórum Brasileiro de Segurança Pública. 2021. Anuário, at https://​forumseguranca​.org​.br/​wp​-content/​ uploads/​2021/​07/​anuario​-2021​-completo​-v6​-bx​.pdf. Gervasoni, Carlos & Marcelo Nazareno. (2017). ‘La Relación entre gobernadores y legisladores nacionales,’ Política y gobierno 24(1): 9–44. Gervasoni, Carlos. (2010). ‘A Rentier Theory of Subnational Regimes. Fiscal Federalism, Democracy, and Authoritarianism in the Argentine Provinces,’ World Politics 62(2): 302–40. Gibson, Edward & Tulia Falleti. ‘Unity by the Stick: Regional Conflicts and the Origin of Argentine Federalism’ in Edward Gibson (ed) Federalism and Democracy in Latin America (Johns Hopkins University Press, 2004) 226–54. Gibson, Edward & Ernesto Calvo. (2000). ‘Federalism and Low-Maintenance Constituencies: Territorial Dimensions of Economic Reform in Argentina,’ Studies in Comparative International Development 35(3): 32–55. Gibson, Edward. Boundary Control (Cambridge University Press, 2012). González-Bertomeu, Juan F. ‘The Constitution of Argentina’ in Roberto Gargarella & Conrado Hübner Mendes (eds) The Oxford Handbook of Constitutional Law in Latin America (Oxford University Press, 2021). González-Bertomeu, Juan F. ‘Notas sobre Federalismo’ in Roberto Gargarella (ed) Teoría y Crítica del Derecho Constitucional (Abeledo, 2009). Gutiérrez Cuéllar, Paola. ‘Poder político subnacional: fortalezas de los gobernadores en México, 2001–2012’ in Nicolás Loza and Irma Méndez (eds) Poderes y democracia. La política subnacional en México (FLACSO, 2016) 71–92. Góes, Carlos & Izabela Karpowicz. (2017). ‘Inequality in Brazil: A Regional Perspective’, IMF Working Paper. Hernández-Rodríguez, Rogelio. El centro dividido. La nueva autonomía de los gobernadores (Colegio de México, 2008). Lambert, Frederic & Hyunmin Park. (2019). ‘Income Inequality and Government Transfers in Mexico’, IMF Working Paper. Langston, Joy. ‘The Birth and Transformation of the Dedazo in Mexico’ in Gretchen Helmke & Steven Levitsky, Informal Institutions and Democracy: Lessons from Latin America (Johns Hopkins, 2006) 143–59. Limongi, Fernando. (2007). ‘Democracy in Brazil Presidentialism, party coalitions and the decision-making process,’ Novos Estudos 3: 17–41. Mazzuca, Sebastián. Latecomer State Formation (Yale University Press, 2021).

244  Research handbook on the politics of constitutional law Muñoz, Andrés, Emilio Pineda & Axel Radics (eds) Descentralización fiscal y disparidades regionales en América Latina: el potencial de las transferencias de igualación (BID, 2017). Nacif, Benito. ‘Understanding Party Discipline in the Mexican Chamber of Deputies: The Centralized Party Model’ in Scott Morgenstern & Benito Nacif (eds) Legislative Politics in Latin America (Cambridge University Press, 2002) 254–84. Negretto, Gabriel. (2006). ‘La reforma constitucional en México. Apuntes para un debate futuro,’ Política y gobierno 13(2): 361–92. Olmeda, Juan C. (2009). ‘Federalismo revitalizado, pluralismo político y acción legislativa. Las relaciones entre los gobernadores mexicanos y el Congreso de la Unión durante la última década,’ Revista Legislativa de Estudios Sociales y de Opinión Pública 2(3): 103–32. Peluso Neder Meyer, Emilio & Thomas Bustamante. ‘Covid-19 in Brazil: A Sick Constitutional Democracy’ (Verfassungsblog, 22 February 2020). Philip, George. The Presidency in Mexican Politics (Palgrave, 1992). Porto, Alberto. ‘Argentina’ in Andrés Muñoz, Emilio Pineda & Axel Radics (eds) Descentralización fiscal y disparidades regionales en América Latina: el potencial de las transferencias de igualación (BID, 2017). Porto, Alberto. ‘Etapas de la Coparticipación Federal de Impuestos: Un Análisis Crítico’ in Alberto Porto (ed) Disparidades Regionales y Federalismo Fiscal (EDULP, 2004). Porto, Alberto, Carlos Pineda & Eguino Huáscar. (2018). ‘Descentralización y autonomía fiscal subnacional en América Latina’, Banco Interamericano de Desarrollo, documento IDB-DP-557. Pou, Francisca & Andrea Pozas-Loyo. ‘The Paradox of Mexico’s Constitutional Hyper-Reformism: Enabling Peaceful Transition While Blocking Democratic Consolidation’ in Richard Albert, Carlos Bernal & Juliano Benvindo (eds) Constitutional Change and Transformation in Latin America (Hart Publishing, 2019). Riker, William H. ‘Federalism’ in Fred Greenstein & Nelson Polsby, Handbook of Political Science (Addison-Wesley, 1975). Rodden, Jonathan A. Hamilton’s Paradox: The Promise and Peril of Fiscal Federalism (Cambridge University Press, 2006). Rodríguez Pueblita, José Carlos. ‘México’ in Andrés Muñoz, Emilio Pineda & Axel Radics (eds) Descentralización fiscal y disparidades regionales en América Latina: el potencial de las transferencias de igualación (BID, 2017). Rosenn, Keith S. (2005). ‘Federalism in Brazil,’ Duq. L. Rev. 43: 577–98. Rossignolo, Darío. ‘Las transferencias monetarias condicionadas y la reducción de disparidades regionales en Argentina’ (CEPAL, 2017). Saiegh, Sebastián. (2007). ‘Hamilton’s Paradox: The Promise and Peril of Fiscal Federalism – by Jonathan A. Rodden,’ Journal of Politics 69(1): 262–64. Saiegh, Sebastián. ‘The “sub-national” connection: legislative coalitions, cross-voting, and policymaking in Argentina’ in Flavia Fiorucci & Marcus Klein (eds) The Argentine Crisis at the Turn of the Millennium (Aksant, 2004). Samuels, David. ‘Reinventing Local Government? Municipalities and Inter-governmental Relations in Democratic Brazil’ in P. Kingstone & T. Power (eds) Democratic Brazil (University of Pittsburgh Press, 2000). Samuels, David & Richard Snyder. (2001). ‘The Value of a Vote: Malapportionment in Comparative Perspective,’ B. J. Pol. S. 31: 651–71. Samuels, David & Fernando Luiz Abrucio. (2000). ‘Federalism and Democratic Transitions: The “New” Politics of the Governors in Brazil,’ Publius: The Journal of Federalism 30(2): 43–61. Soares, Márcia M. & José Angelo Machado. (2020). ‘Effects of Federalism on Social Policies in a Comparative Perspective: Argentina and Brazil,’ Brazilian Political Science Review 14(3): 1–37. Soares, Márcia M. & Pedro Neiva. (2011). ‘Federalism and Public Resources in Brazil: Federal Discretionary Transfers to States,’ Brazilian Political Science Review 5(2): 94–116. Sohr, Olivia. ‘Coparticipación: dónde queda ahora la Ciudad en el ranking provincial’ (Chequeado, 19 January 2016). Souza, Celina. ‘Federal Republic of Brazil’ in John Kincaid & G. Alan Tarr (eds) A global dialogue on federalism (McGill-Queen’s University Press, 2005).

Constitutional politics of federalism in Latin America  245 Souza, Celina. ‘Sistema brasileño de gobierno local. Innovaciones institucionales y sustentabilidad’ in Catia Lubambo, Marcus Melo & Denilson Coêlho (eds) Diseño Institucional y participación política experiencias en el Brasil contemporáneo (CLACSO, 2006). Suárez Cao, Julieta. (2011). ‘¿Federal en Teoría pero Unitaria en la Práctica? Una Discusión Sobre el Federalismo y la Provincialización de la Política Argentina,’ SAAP 5(2): 305–21. Stepan, Alfred. (2000). ‘Brazil’s Decentralized Federalism: Bringing Government Closer to the Citizens?,’ Daedalus 129(2): 145–69. VanDusky-Allen, Julie, Olga Shvetsova & Andrei Zhirnov. ‘Brazilian Federalism and State Level Policy Responses to the COVID-19 Pandemic’ (The Blue Review, 17 June 2020), https://​www​.boisestate​ .edu/​bluereview/​brazilian​-federalism/​. Volden, Craig. (2004). ‘Origin, Operation, and Significance: The Federalism of William H. Riker,’ Publius: The Journal of Federalism 34(4): 89–108.

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15. The rise and protection of judicial independence Georg Vanberg, Benjamin Broman and Christopher Ritter

1. INTRODUCTION Judicial independence (JI) – understood as the insulation of courts against inappropriate interference by political actors – is widely seen as a critical ingredient of good governance. International development organisations, including the World Bank, regard promotion of judicial independence as part of their mission. Among advanced industrial nations, as well, judicial independence is typically considered necessary for democratic governance. In the European Union, for example, protections of judicial independence are among the (judicially-constructed) treaty obligations of Member States.1 While there appears to be a strong consensus that independent courts are desirable, achieving independence in practice remains elusive in many contexts: From Franklin D. Roosevelt’s 1937 ‘court-packing plan’ to recent tensions within the European Union over judicial reforms in Poland and Hungary to purges of the constitutional courts of several Latin American countries, examples of threats to JI are not difficult to identify. Put differently, despite near universal acclamation of judicial independence as an ideal, establishing and maintaining independent courts poses a significant challenge. What then are the conditions that favour the emergence of independent courts and promote their continued existence? Are these conditions subject to deliberate design, that is, is it possible to promote JI through proper institutional engineering? Or is the ability of constitution-makers to promote JI significantly constrained? In this chapter, we provide a systematic overview of current scholarly understandings of these puzzles. We develop a conceptual framework that organises contributions along several distinct causal chains that have been proposed to explain how and when judicial independence emerges and remains viable. Throughout, we illustrate the theoretical discussion with a comparative assessment of the historical development of independent judiciaries, and a review of contemporary evidence.

2.

DEFINING CONCEPTS

Governmental actors often have a vested interest in the outcome of judicial proceedings. This is particularly the case when the exercise of judicial review implicates the powers or policy choices of the other branches, that is, when ‘judges invoke the constitution, with some regu-

1 Specifically, the European Court of Justice and the European Court of Human Rights have developed a jurisprudence that demands respect for the independence of domestic judiciaries as part of Member States’ treaty obligations. For detailed discussions, see Kosar and Lixinksi (2015), Pech and Kochenov (2021), and van Elsuwege and Gremmelprez (2021).

246

The rise and protection of judicial independence  247 larity, to set aside policy initiatives thought important by a significant portion of the nation’s political elites’ (Tushnet 2015a, 109). Moreover, these actors often have means at their disposal to exert pressure on judges in hopes of swaying rulings in their favour. To defend against this threat, and to ensure that judges can decide cases on the basis of relevant legal considerations, is the purpose of judicial independence: Independent courts can undertake their work free from inappropriate political influence, either by threats or inducements. As Melton and Ginsburg (2014, 190) put it, ‘at its core, [judicial independence] involves the ability and willingness of courts to decide cases in light of the law without undue regard to the views of other government actors.’ Deceptively simple, this definition glosses over a number of complications that deserve explicit mention. The first is that independence is related to, but distinct from, impartiality. Impartiality is concerned with judges’ attitudes towards those who appear before the court in a dispute. An impartial judge is not biased for or against one of the parties. Those parties may, on occasion, include political actors, but often will not. Independence, in contrast, is not directly concerned with the parties before the court, but with external influences on the judicial process. Nevertheless, there is an obvious connection: Independence is valued precisely because political interference may undermine impartiality (see Burbank 2002, 336). This leads to the second point. As John Ferejohn (1999, 353) has observed, ‘judicial independence … cannot be seen as something valuable in itself. Rather, it is instrumental to the pursuit of other values …’. JI is valued because it promotes the ability of judges to reach decisions on the basis of considerations that are regarded as legally relevant, and because it reduces the influence of considerations that are regarded as irrelevant or inappropriate. The fact that judicial independence is valued as a means to an end helps to clarify the relationship between JI and judicial accountability. The purpose of accountability is to ensure that judges reach decisions on the basis of appropriate considerations – and to provide mechanisms that make it possible to hold accountable judges that grossly violate this expectation. In other words, both independence and accountability focus on creating conditions for appropriate judicial behaviour. It is in this sense that accountability is the ‘other side of the coin’ of judicial independence (Burbank 1999, 339). Of course, as scholars have long recognised, there are trade-offs between these values: Institutional features that insulate judges from external pressures may make it more difficult to hold them accountable, and vice versa (see Tushnet 2013).2 For instance, accountability mechanisms that allow sanctioning of judges via the political branches (for example, through impeachment proceedings under the control of executive or legislative actors) may be (ab)used to place political pressure on judges. For this reason, some international courts have encouraged ‘judicial self-governance,’ demanding that oversight and accountability mechanisms be placed under judicial control to enhance judicial independence from undue political influence. Specifically, institutional provisions designed to enhance independence, such as secure tenure in office, or prohibitions against reducing judicial salaries, may make it more difficult to hold judges accountable. Indeed, the conviction that the 1787 constitutional convention in Philadelphia had erred on the side of too much independence comprised one of the chief Anti-Federalist complaints against the proposed constitution. As Brutus put it in his fifteenth letter: ‘they have made the judges independent, in the fullest sense of the word. There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself’ (Ketcham 1986, 305). 2

248  Research handbook on the politics of constitutional law Yet, judicial self-governance may also induce undesirable dependence within the judicial branch, potentially subjecting some judges to undue influence by others – typically ‘elite’ judges who exercise the oversight function (Kosar 2016). In short, the relationship between accountability and independence raises subtle challenges of institutional design. Nevertheless, the crucial point for present purposes is that such trade-offs involve practical challenges. They do not reflect an underlying anti-thesis between accountability and independence. ‘[A] commitment to judicial independence is … fully compatible, at least in the abstract, with a commitment to judicial accountability, that is, to mechanisms that can ensure that judges will, in fact, be guided by appropriate considerations in reaching decisions’ (Vanberg 2008, 101). This institutional dimension of JI points to a final aspect that will be at the heart of this chapter. Judicial independence is often equated with the presence of specific formal arrangements, typically enshrined in the constitution, that are thought to insulate judges against political interference (such as secure tenure in office, or protection against reductions in salary). Such provisions capture what scholars refer to as de jure independence, and empirical measures of JI often rely on these markers (e.g. Hayo and Voigt 2019; Melton and Ginsburg 2014). However, as James Madison famously noted with respect to constitutional provisions more generally, such formal – or ‘parchment’ – barriers are not self-executing; constitutional guarantees of judicial independence do not necessarily lead to judicial independence in practice if governmental actors are able to ignore or skirt formal provisions. It is not difficult to find examples of courts that enjoy significant de jure protections that are routinely circumvented. Put differently, we must distinguish between de jure and de facto independence. Consider Figure 15.1, which plots a standard measure of de facto JI developed by Hayo and Voigt (2019) against two of the most widely-used measures of de facto independence (Staton et al. 2019; Coppedge et al. 2021) in 2015.3 Several striking aspects of the figure stand out. First, and most obviously, the relationship between de jure provisions for JI and de facto independence is noisy: For most levels of de jure independence, there is substantial spread in the associated level of de facto independence. In countries that do not feature formal provisions for judicial independence, courts may in fact be dependent – but they may also be highly independent in practice. Similarly, even in countries with strong formal guarantees of judicial independence, the practical dimension is more complicated. There are a considerable number of places in which formal guarantees of independence nonetheless go hand in hand with low levels of de facto independence. Second, within this noise, the relationship between de jure and de facto independence is, at best, weakly positive. Clearly, judging merely on the basis of these scatterplots, one would not conclude that formal, institutional provisions for judicial independence effectively promote independence in practice. All of this suggests that the appropriate focus of our inquiry is de facto independence. After all, regardless of formal provisions, what is ultimately relevant for the functioning of a political system is whether judges are, in fact, able to decide cases without inappropriate

Hayo and Voigt’s (2019) measure is based on constitutional protections for judicial independence, such as a protection from dismissal and formal qualifications for appointment. Staton et al (2019) perform a latent analysis of various de facto indicators of judicial independence, including law and order rankings, constraints on the executive, and scholarly indices. The Varieties of Democracy (Coppedge et al. 2021) rankings are based on country-specific expert opinions regarding whether courts decide high-profile cases on legal rather than political grounds. The graphs include 95 per cent confidence intervals around the line of best fit. 3

The rise and protection of judicial independence  249

Source: Data from Hayo and Voigt (2019) and Staton et al. (2019).

Figure 15.1

De jure and de facto judicial independence

interference by the other branches – formal provisions are merely a means towards this end. This primacy of de facto independence is reflected in contemporary explanations of judicial independence, which generally focus on this dimension (e.g. Ginsburg 2003; Hayo and Voigt 2007; Ramseyer 1994; Stephenson 2004; Vanberg 2008; Whittington 2003, among others). It is important to note, however, that this does not imply that de jure independence is irrelevant.

250  Research handbook on the politics of constitutional law As we discuss below, formal provisions for judicial independence may play a significant – though indirect – role in achieving independence in practice (Melton and Ginsburg 2014).

3.

THEORIES OF JUDICIAL INDEPENDENCE

A focus on de facto judicial independence implies that the central explanatory task is to understand why, and under what conditions, political actors will be unable or unwilling to sway judicial decisions through inappropriate threats or inducements.4 Fragmentation of power is a critical factor: The more fragmented political authority is, the greater the degree of agreement and coordination required among the other branches to move against the judiciary. As a result, where power is more dispersed, judges enjoy greater scope for exercising their authority without political interference. Such fragmentation can come, of course, in a number of forms. Formal separation-of-powers provisions, including between legislative and executive power, bicameralism, or strong federalism may make it more difficult for other branches to attack the courts (see Friedman 2004; Rios-Figueroa 2007; Vanberg 2000; Whittington 2003). But formal political structures are not the only relevant source of fragmentation; for example, factionalisation of a dominant party may help to protect judges against attack by similarly preventing the formation of a coalition that can successfully weaken the judiciary (Tushnet 2015a). While political fragmentation can offer protection for independent courts, most studies of judicial independence argue that governmental actors typically have some ability to exert pressure on judges, particularly when the presence of cohesive political parties can help to coordinate the actions of policymakers across different branches. In this sense, judicial independence ultimately represents a political choice: Judicial independence thrives in conditions that make it in the interest of political actors to establish and to respect independent courts. For this reason, the factors that shape the attitudes of the relevant political actors towards the courts are central. Broadly speaking, scholars have identified three distinct political logics that underpin respect for judicial independence among the other branches – logics that can overlap and are not mutually exclusive: ● The presence of (usually collective) social actors who value judicial independence and place sufficient pressure on governmental actors to induce them to respect JI. ● An ‘insurance’ logic under which those who hold power anticipate that they may lose it and are therefore willing to respect judicial independence while in office to preserve the protection it offers should they find themselves in opposition. ● The presence of ‘governance’ benefits to office holders from the independence of courts that are sufficiently valuable to make tolerating JI worthwhile. Note that under the first logic, those in power derive no direct benefit from judicial independence – they are willing to accept independent courts only because of the costs that will be imposed by social actors who value independent courts should they choose not to do so. In this sense, judicial independence is supported by outside forces, providing an exogenous explana-

4 There is, of course, the difficult issue of defining which actions constitute inappropriate influence; we do not attempt to resolve this question here.

The rise and protection of judicial independence  251 tion. In contrast, under the two other logics, those in power derive sufficient positive benefits from independent courts to make it in their interest to tolerate them, even if these institutions can, on occasion, impose unwelcome limits. Thus, these logics provide endogenous explanations.5 We explore each of these categories in turn. 3.1

External Support

We begin with exogenous explanations. Historically speaking, the emergence of judicial independence in Europe is arguably most directly rooted in this logic: Pressure by influential social actors who can effectively demand the establishment of independent courts. In all political systems, those in power rely on the continued support of a coalition necessary (and sufficient) to maintain them in their position.6 In democratic regimes, this implies sufficient support among the citizen electorate, in autocracies, the support of the top military establishment, while in medieval European monarchies, sufficient support among the feudal nobility and clergy. Suppose that (for reasons we explore below) critical members of a ruler’s support coalition value judicial independence. Given the need to maintain the support of these interests, those in power are likely to agree to the establishment and maintenance of independent courts when confronted with a clear demand from members of the support coalition they must maintain. Why might these outside interests demand independent courts? One reason derives from what Martin Shapiro (1981) has famously called ‘the logic of the triad’. Courts are, first and foremost, dispute resolution institutions, and have their origins in the gains that parties can derive from replacing violent conflict with peaceful mediation of disputes. A pre-condition for such third-party resolution, however, is that the mediator must be sufficiently impartial: Parties in a dispute are not likely to submit to the authority of a judge known to be systematically biased in favour of the other party.7 This need for impartiality, in turn, can fuel a demand for insulating courts against political pressures. That is, anticipating that those in power may want to intervene in particular cases, thus undermining the impartiality of courts, actors with an interest in effective dispute resolution may demand protections for judicial independence, even if the disputes that courts resolve are overwhelmingly among private parties and do not involve the state directly. One of the most prominent early examples of the creation of an independent court in Europe involves precisely this logic: The establishment of the Reichskammergericht (the Imperial Chamber Court), which served as the ‘Supreme Court’ of the Holy Roman Empire from 1495 to 1806. Medieval Germany suffered from widespread violence and lawlessness – especially in the form of extrajudicial violent dispute resolution through feuding. Moreover, while the king was nominally the source of justice, as an elective monarch, he had clear political interests when resolving disputes involving elites on whose support he had to depend. This undercut 5 For a more detailed discussion of endogenous and exogenous explanations for judicial independence, see Vanberg (2008). 6 This is, of course, close to tautological. For a recent systematic formalisation of this relationship, and some of its implications, see the ‘selectorate theory’ developed by Buena de Mesquita et al. (2005). 7 David Hume (1741/1985, 40) provides an early formulation of this argument, rooting the emergence of government in a gradual evolutionary process that begins when a temporary leader in war, who ‘possessed as much equity as prudence and valour’ could become ‘even during peace, the arbiter of all differences, and could gradually, by a mixture of force and consent, establish his authority.’

252  Research handbook on the politics of constitutional law his viability as a third-party peacemaker. Alternatives, such as locally controlled courts, were equally prone to political capture. By the end of the fifteenth century, the resulting disorder had given rise to a broad reform movement among the estates aimed at banning the feud and establishing an independent supreme court to provide judicial resolution of disputes. Although he opposed the creation of this court as an encroachment on royal rights, King Maximilian I had little choice but to agree: The estates refused to provide funds for his on-going wars in Hungary and Italy unless he accepted reform (Wilson 2016, 625–27). In creating the ICC, the reform movement pressed for several features to protect the court’s independence that were unique for the time. Most judges were appointed by feudal and ecclesiastical elites on a rotating basis, preventing the king (or anyone else) from dominating its composition. The court was not funded by the king, but by a new tax designated for its operation. Even its physical location, in a free city rather than the king’s capital, emphasised and protected its neutrality. All of this meant that judges were insulated from political pressure: ‘The king,’ according to Fritz Hartung, ‘… had nothing to say in the Chamber Court’ (Hartung 1972, 116). Importantly, the court was not conceived as a vehicle to constrain royal power. For example, it had no power to review the king’s actions or to rule on constitutional matters. Instead, in line with the argument above, reformers acted pragmatically in response to social disorder: They were seeking to establish a court to replace feuding with judicial resolution, and the court’s independence was necessary to make it an effective third-party arbiter. In this sense, the demand for the establishment of the ICC reflected ‘a widely shared constitutional interest in the creation of a powerful, impartial judiciary for the resolution of (private) disputes’ (Broman and Vanberg 2021). The history of the Reichskammergericht provides one archetype for the establishment of JI: Social demand for peace and order can underpin demand for judicial independence – not because courts regulate political power, but because the effectiveness of judicial dispute resolution hinges on protecting the impartiality of courts. At the same time, the desire to limit political power has historically also played a significant role in societal demands for judicial independence: Independent courts are often seen as mechanisms for policing the behaviour of rulers, that is, for enforcing constitutional constraints on political authority through the exercise of judicial review. What is the value of independent courts in policing constitutional boundaries on political power? A moment’s reflection suggests that the answer is not as obvious as might appear at first glance: As Alexander Hamilton famously noted in Federalist 78, courts have few formal powers at their disposal to enforce their decisions. In light of this problem, how could courts effectively curb the exercise of power by rulers determined to violate constitutional restraints? Moreover, why would courts be necessary to do so in the first place? If a sufficiently powerful coalition of societal actors demands constitutional restraints on power, presumably this coalition could react to constitutional violations with sufficient pressure to make it in the interest of those in power to respect the limits. Put differently, what purpose do intermediary institutions like courts play in enforcing constitutional boundaries? The answer to this question is suggested by recognising that constitutional constraints must, ultimately, be self-enforcing: Those in authority must expect that a violation will result in a loss of support among the relevant ‘support coalition’ (e.g. a sufficient number of citizens in a democracy, or a sufficient share of the nobility in a monarchy) that is so significant as to make compliance the better option (Weingast 1997, 2016; Sutter 1997; Vanberg 2011). But such a response requires coordinated judgments and expectations among the members

The rise and protection of judicial independence  253 of that coalition about what counts as a violation. As Vanberg (2011, 313) puts it, ‘(w)ithout a shared understanding of the action at issue, citizens will not punish a sovereign in a coordinated, predictable fashion, and the constraint imposed become meaningless – at least with respect to those actions sufficiently ‘close to the limit’ to permit plausible disagreement.’ What is required, therefore, is a mechanism that coordinates citizen understandings, that is, a mechanism that provides a clear signal regarding whether particular sovereign actions are to be treated as violations of a constitutional constraint or not. Judicial decisions – particularly by a Supreme Court – constitute a focal point that facilitates precisely such coordination. As Sutter (1997, 146–47) observes, the ‘verdict in a Supreme Court case serves as a focal point … When enforcing limits on government requires coordinated effort, appointing judges to render a verdict is beneficial even if the judges were no more competent than the average citizen.’ In short, courts can play a central role in making constitutional limits on power effective by coordinating societal understandings of which specific acts are to be regarded as ‘in’ and ‘out of bounds.’ But there is an important caveat. Courts are only helpful in this regard if they are not under the control of those institutions that constitutional limits courts are intended to constrain (Sutter 1997). A referee who is ‘in the pocket’ of those she is meant to police is not likely to call out rule violations. This line of reasoning has an obvious implication. To the extent that social actors value effective constitutional limits on political power, these same interests are also likely to value the establishment of independent courts to help police these boundaries by providing clear signals regarding potential constitutional violations. This argument suggests that in democratic polities, public support for courts and their independence (rooted in support for the constitutional order) may be critical to the ability of courts to police constitutional boundaries. Empirically, a number of scholars have argued that this is the case. Thus, Vanberg (2005) provides both quantitative and qualitative evidence that the power of the German Bundesverfassungsgericht, widely considered among the most influential constitutional courts, largely derives from the court’s public support because policymakers perceive that it is politically too costly to attack the court, or to disregard its decisions. Similarly, Staton (2010) demonstrates that the Mexican Suprema Corte de Justicia makes systematic use of its ability to raise public awareness of decisions to bring public pressure for compliance to bear on governmental actors. The value of independent courts in helping to police constitutional boundaries also suggests a potential link between de jure and de facto independence. The effectiveness of courts as coordination devices requires that they remain independent of political influence over time. In other words, citizens must be able to defend the judiciary against attempts by those in power to undermine it. As Melton and Ginsburg (2014, 192) suggest, this necessity creates a connection between de jure and de facto independence. Specifically, de jure provisions for JI (such as secure tenure in office, limited removal procedures, and salary protections) create ‘bright lines’ that make it easier to identify, and react to, attempts to threaten the independence of courts. Put differently, de jure independence can serve as a trip wire that ‘raises the cost of interfering with judges, in part because it informs other actors (e.g. the public, governmental institutions, and other interested audiences) about potential threats to the judiciary. This increases the likelihood that other actors will coordinate to defend the judiciary’s independence when it is threatened.’8 8 Empirically, Melton and Ginsburg find only weak evidence that de jure independence has a positive impact on de facto independence, and these effects appear to be limited to authoritarian regimes and

254  Research handbook on the politics of constitutional law Historically, the emergence of judicial independence in England out of the struggle between parliament and the crown – one of the key developments in the history of judicial independence more generally – directly reflects this logic of societal demands for independent courts as a means for providing effective oversight over the actions of rulers. As Hayek (1960, 262) has argued, in seventeenth century England, the problem of constraining political power was predominantly understood as a problem of constraining royal power; parliament was seen as a representative of societal interests whose actions did not require direct constraints. For this reason, initial demands for judicial independence emerged from parliament and were directed at the monarchy. For nearly six centuries, control over the appointment and retention of judges in England had rested with the monarchy, evolving from the curia regis of William the Conqueror to an amorphous network of prerogative courts, established in the thirteenth and fourteenth centuries (Shapiro 1977; Baker 2019). Courts like the Star Chamber were increasingly employed to prosecute the monarchy’s political opponents, to inflict punishments beyond common law courts, and to rubber-stamp the Crown’s rapacious fiscal policies, including monopoly grants, ‘forced loans,’ and other rent-seeking ploys (Baker 2019; Vande Zande 2010; North and Weingast 1989). The Crown maintained its grip over the judiciary through two institutional features. First, a judge’s salary and pension were often derived from compensation directly provided at the discretion of the King (including royal positions and dual appointments) (Jay 1994; Prest 1991). Second, because English judges occupied their position at the Crown’s pleasure, they could be removed without cause. James I’s dismissal of Chief Justice Edward Coke in 1610 in response to Coke’s assertion that English judges could nullify statutes by judicial review provides a prominent example (Shetreet 2013). The Crown’s ability to dismiss dissenting judges like Coke augured a greater conflict between Parliament and the Crown over the duties and functions of judges (North and Weingast 1989). Parliament aimed to curb the Crown’s arbitrary expropriation of wealth and mounting debts, both of which threatened the country’s ability to guarantee property rights and borrow from creditors. Part of this initiative was an effort to insulate the courts from royal interference. Thus, one of the chief reforms implemented as part of the Glorious Revolution was the establishment of a politically independent judiciary, offering English judges cover to resist pressure from the Crown. The 1701 Act of Settlement legally enshrined judicial tenure; judges now held office during good behaviour until the sovereign’s death and could be removed only upon agreement of both houses of Parliament. Moreover, judicial salaries were fixed (Stevens 2001). Further legislation in 1760 permitted judges to continue holding office after the sovereign’s death. By 1799, fixed pensions for judges were codified into law (Shetreet 2013; Jay 1994). Thus, within a few decades, a judiciary firmly beyond the control of the monarchy had emerged in England, helping to solidify effective limits on royal power. 3.2

The Value of Judicial Independence for Rulers

To the extent that judicial independence derives from external demands on rulers for the establishment and maintenance of independent courts, judicial independence is imposed on those who govern. They are induced to accept it, but have no intrinsic attachment to it (and perhaps new democracies. However, given the data limitations confronting their analysis, it is difficult to draw firm conclusions.

The rise and protection of judicial independence  255 even resent it). In sharp contrast, another set of theoretical accounts focuses on the positive benefits that those in power may derive from the presence of independent courts, leading them to favour such institutions for their own reasons, and not simply because of external pressure. Perhaps the most prominent such argument is the ‘insurance theory’ of judicial independence. The logic of this argument, which has been developed by a number of scholars (including Ramseyer 1994; Stephenson 2003; Ginsburg 2003; Hirschl 2000; Whittington 2003; Magalhaes 2003; Vanberg 2015), is simple. Suppose the political environment is competitive in the sense that those currently in power perceive a meaningful risk that they will find themselves out of power and in opposition. Anticipating that independent courts may provide protection for their interests in such an event, current rulers may be willing to respect – and thus hope to preserve – judicial independence. That is, acceptance and toleration of independent courts by those in power operates like an ‘insurance premium,’ paid in hopes of limiting the power of future rulers should those in power today find themselves turned out of office tomorrow. While the basic intuition of the insurance argument is straightforward, to be compelling, a number of more subtle conditions must be met.9 The first condition concerns the competitiveness of the political environment. A key ingredient in the insurance argument is the fear of current officeholders that they will lose power. Ran Hirschl focuses on this aspect in arguing that the decision of previously dominant elites to create independent courts may be rooted in the hope that strengthened courts will protect their interests in the event of a loss of power. As he puts it (2000, 95), as threats to their power increase, ‘hegemonic elites who possess disproportionate access to and influence upon the legal arena may initiate a constitutional entrenchment of rights in order to transfer power to the courts.’ However, the anticipation of decline by current rulers is not, on its own, sufficient to explain the maintenance of judicial independence. A previously dominant elite may attempt to protect its interests through the empowerment of an independent judiciary. But the new rulers will only respect such an institution if they, in turn, must fear losing office. In other words, a first condition is not just that current office-holders fear losing power, but that the political environment is continuously competitive: Those who come after them must also expect that their tenure in office is not secure, and so on. Second, accepting independent courts as a hedge against losing power requires that current rulers believe that – should they lose power – judges are sufficiently likely to rule in their favour. Perhaps such expectations are rooted in the belief that ‘the law’ is so clear as to preclude reasonable disagreement over its interpretation. More often, however, such an expectation is likely to derive from the fact that the current coalition has been able to ‘shape the bench’ through its appointment of judges. To the extent that this is true, it reinforces the centrality of a continuously competitive environment for judicial independence: For any coalition that permanently loses power, the protection provided by an independent judiciary would be transitory as its judges are replaced.10 A final condition is closely related. Under the insurance logic, those in power trade acceptance of current constraints on their power for the potential protection offered by (effective) courts should they be in opposition in the future. This immediately implies that even in These conditions are most clearly revealed by formalising the insurance logic in a game-theoretic framework (see Stephenson 2003 and Vanberg 2015). 10 We thank Mark Tushnet for comments that alerted us to this point. 9

256  Research handbook on the politics of constitutional law a competitive environment, the insurance logic can underpin JI only if ruling elites have a sufficiently long-term horizon, that is, if they are sufficiently focused on the long-term to accept short-term limits on their power. Ironically, in at least in some settings, intense political competition may create circumstances that make it difficult to meet these conditions. Instead, the threat of losing power – and the consequences that may flow from such loss – may induce political actors to be particularly focused on the short-term gains that subservient courts may offer in attempting to avert defeat and to hold on to power. As Aydin (2013, 112) argues, In this regard, when political competition is intense, the outgoing incumbent – current government that faces a high probability of being replaced in the upcoming elections – can reap immediate benefits from interfering in the judiciary. The major benefit of a subservient judiciary would be its aptitude to increase the incumbent government’s probability of remaining in office. In other words, a subservient judicial system can help the incumbent government to maximise its chance of re-election by weakening the social credibility, financial and even legal standing of the opposition parties.

Aydin argues that this logic will be particularly compelling in newly developing democracies. In such polities, public support for independent courts is typically lower, thus reducing the threat of a public backlash or electoral cost for interfering with the judiciary (2013, 115). Moreover, in such systems, norms of free and fair political competition may be less entrenched, raising the spectre that losing the current election may result in permanent exclusion from office. Faced with such a prospect, increased electoral competition, rather than encouraging respect for judicial independence by current office holders, may actually undermine it. Empirically, the insurance theory – including the qualification offered by Aydin – is supported by significant and broad empirical evidence. Aydin’s own analysis of de facto judicial independence in 97 democracies over roughly ten years suggests that political competition enhances judicial independence in consolidated democracies, but is counter-productive (that is, undermines JI) in newly developing democracies (see also Randazzo, Gibler, and Reid 2016). Similarly, Ginsburg and Versteeg (2014) as well as Stephenson (2003) provide strong quantitative evidence that political competition enhances judicial independence in democratic settings. More qualitative approaches lead to similar conclusions. Thus, Whittington (2003) shows that in the United States, Congressional attacks on the independence of the Supreme Court systematically increase during periods in which one party becomes electorally dominant, and decline when competition increases. In a comparative context, Ginsburg (2003) shows that lack of political competition discouraged the creation of an independent supreme court in Taiwan, but led to the establishment of an independent constitutional court in South Korea, where political competition was intense. Following transitions to democracy in Southern Europe, independent constitutional courts were established in Spain and Portugal – both characterised by competitive party systems – while single-party dominance in Greece did not provide the same incentives (Magalhaes 2003). Stated more generally, the empirical evidence generally suggests that transitions from politically less to politically more competitive environments (such as the transition from (semi-)authoritarian to democratic regimes) strengthen judicial independence, while declines in political competition (as the result of an electorally dominant party, or a transition from a democratic to a (semi-)authoritarian regime) undermine independent courts. The insurance logic focuses on benefits that rulers can derive from independent courts should they lose power. In contrast, other theories propose that independent courts can provide

The rise and protection of judicial independence  257 direct benefits for those who govern, that is, benefits that accrue to rulers while in office. One set of benefits derives from the logic of electoral competition in democratic polities. Officeholders face incentives to take credit for political decisions that are likely to boost their electoral support, and to avoid blame for decisions that threaten it (Mayhew 1974). These incentives provide one rationale for delegating policymaking authority to administrative agencies in order to ‘shift blame’ for unpopular decisions (particularly, the costs of regulatory action) to the bureaucracy (Fiorina 1982; Stephenson 2006). Legislative and executive branch actors can similarly benefit from ‘encourag[ing] or tacitly support[ing] judicial policymaking both as a means of avoiding political responsibility for making tough decisions and as a means of pursuing controversial policy goals that they cannot publicly advance through open legislative and electoral politics’ (Graber 1993, 37; see also Hirschl 2000; Salzberger 1993; Whittington 2005, 2007). Of course, such blame-shifting is not likely to be successful if the judiciary does not possess a sufficiently high degree of independence. If it is merely perceived as a tool of other political actors, it is not a credible scapegoat.11 Perhaps more interesting – and surprising – are arguments that suggest that independent courts can provide governance benefits to rulers independent of regime type (that is, benefits that may accrue to rulers not just in democratic settings but also in non-democratic regimes). One prominent such benefit is that in ‘tying their hands’ and empowering courts, governments may be able to enhance the credibility of policy commitments in ways that yield economic benefits. Thus, North and Weingast (1989) argue that the institutional constraints imposed on the British crown during the Revolution Settlement in 1688, including effective protection against royal manipulation of the courts, drastically improved the credibility of the Crown’s fiscal policies. They claim that this ‘clear and dramatic credible commitment that the government would honor its promises’ substantially improved the regime’s access to credit (1989, 824). In a similar vein, Cho (2020) argues that a desire to attract foreign direct investment provides strong incentives for authoritarian governments to establish independent courts in order to reassure investors. Of course, to the extent possible, they will attempt to limit the courts’ powers to the economic realm (see also Moustafa 2007). While intriguing, these arguments raise a question: A desire to make commitments to property rights credible provides a reason for authoritarian regimes to establish independent courts. But of course autocrats face the problem of making this commitment to judicial independence itself credible. This is a non-trivial challenge: Because there are few limits on their power, authoritarians are typically in a position to abolish independent courts as soon as they become a nuisance. As Tushnet (2015b, 422) puts it succinctly, ‘rulers might want to make credible commitments, but they cannot do so, precisely because they can alter the constitution whenever they want – and the target audiences know that the rulers can do so’ (see also Helmke and Rosenbluth 2009). It is perhaps for this reason that, as Solomon (2007, 137) notes, ‘the situation of judges on empowered (high) courts in authoritarian regimes is often precarious and almost always contingent.’

11 Of course, this ‘blame shift’ argument raises a secondary issue that has not received sufficient attention: If the judiciary must be sufficiently independent to serve this purpose, how can legislative and executive actors be sufficiently certain that the courts will make the kinds of decisions these actors favour but do not want to be responsible for?

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4. CONCLUSION What conditions favour the establishment and maintenance of independent courts? The key to answering this question is the recognition that effective judicial independence represents a political choice. Political actors with the means to exert inappropriate pressure on judges must be persuaded to refrain from doing so. This requires social and political conditions that make respecting JI in the interest of those that might otherwise seek to undermine it. As the theoretical and empirical record shows, these conditions are varied. There are many paths to judicial independence. The early emergence of independent courts in Europe was largely a function of monarchs who were ‘pushed’ into establishing such courts by powerful elites that threatened to withhold taxes or political support. More recently, there is convincing empirical evidence that political competition supports JI through an insurance logic, especially in established democracies. These and other paths need not be mutually exclusive, although they may only be feasible at certain levels of political development. Several important questions remain that we have not been able to address within the confines of this chapter. One relates to the ongoing maintenance of judicial independence. If judicial independence is ultimately rooted in a political logic, then judges themselves are a kind of political actor, with significant implications for judicial behaviour (Epstein et al 2001; Carrubba 2009; Vanberg 2005; Staton and Vanberg 2008). Most importantly, the accounts of judicial independence we have reviewed all suggest that there are potential limits to judicial power and the scope within which judges can make decisions. For example, the insurance theory allows courts to strike down extreme legislation, but not moderate legislation; the coordination theory requires that courts remain within acceptable bounds of social understandings of what ‘counts’ as a constitutional violation. Failure to do so invites either political or popular attacks. In short, conserving their legitimacy and influence may require that judges pay heed to political conditions, and act within the constraints of the environment in which they find themselves. This does not mean that judicial decisions merely reflect popular will, but it does suggest some (potentially quite wide) bounds on judicial decisions. This, in turn, suggests that judges have reasons to act strategically. They should (will?) anticipate how other actors will respond to judicial decisions, and such anticipations can exercise important influence over judicial decision-making.12 Finally, recall Ferejohn’s observation that judicial independence is desirable only as a means to other ends. What are these ends, and how well are they served by independent courts, particularly given the array of conditions that potentially support JI? For example, to the extent that independent courts are sustained by social demands for effective limitations on political power, JI may produce significant, and broadly available social benefits.13 On the other hand, the normative implications of the endogenous explanations are not straightforward. Under these accounts, independent courts can create benefits for political elites, but it is not obvious that these benefits extend to citizens at large. If independent courts primarily protect the interests of out-of-power elites, for example, it less clear that JI is normatively A voluminous literature investigates, theoretically and empirically, the manner in which judicial decision-making is shaped by strategic considerations. For two recent overviews, see Epstein and Weinshall (2021) and Epstein and Jacobi (2010). 13 Although even this comes with limitations; the independent judiciary established by the Glorious Revolution was of little help to the Catholics disadvantaged by the resulting Protestant Ascendancy. 12

The rise and protection of judicial independence  259 desirable unless the interests of elites and citizens overlap. Of course, an institution may be created for one reason but have unintended and beneficial effects. Nevertheless, considering the conditions that underpin the emergence and maintenance of independent courts reminds us that it is critical not only to reflect on what sustains judicial independence, but also on what the normative value of independent courts is.

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260  Research handbook on the politics of constitutional law Helmke, Gretchen & Frances Rosenbluth. (2009). ‘Regimes and the Rule of Law: Judicial Independence in Comparative Perspective,’ Annual Review of Political Science 12: 345–66. Hirschl, Ran. (2000). ‘The political origins of judicial empowerment through constitutionalization: Lessons from four constitutional revolutions,’ Law & Social Inquiry 25: 91–149. Hume, David. ‘Of the Origin of Government’ in David Hume, Essays, Moral, Political, and Literary (Liberty Fund, 1741/1985). Jay, Stewart. (1994). ‘Servants of Monarchs and Lords: The Advisory Role of Early English Judges,’ The American Journal of Legal History 38: 117–96. Ketcham, R. The Anti-Federalist Papers and the Constitutional Convention Debates. (Mentor Books, 1986). Kosař, David & Lucas Lixinski. (2015). ‘Domestic judicial design by international human rights courts,’ American Journal of International Law 109(4): 713–60. Kosař, David. Perils of judicial self-government in transitional societies (Cambridge University Press, 2016). Magalhaes, Pedro C. The Limits of Judicialization: Legislative Politics and Constitutional Review in Iberian Democracies (PhD dissertation, Ohio State University, 2003). Mayhew, David. Congress: The Electoral Connection (Yale University Press, 1974). Melton, James & Tom Ginsburg. (2014). ‘Does De Jure Judicial Independence Really Matter? A Reevaluation of Explanations for Judicial Independence,’ Journal of Law and Courts 187–217. Moustafa, Tamir. The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge University Press, 2007). North, Douglass and Barry Weingast. (1989). ‘Constitutions and Commitment: the Evolution of Institutions Governing Public Choice in Seventeenth-century England,’ Journal of Economic History 49: 803–32. Pech, Laurent and Dimitry Kochenov. Respect for the Rule of Law in the Case Law of the European Court of Justice: A Casebook Overview of Key Judgments since the Portuguese Judges Case (SIEPS, Stockholm, 2021) SSRN: https://​ssrn​.com/​abstract​=​3850308. Prest, Wilfrid. (1991). ‘Judicial Corruption in Early Modern England,’ Past & Present 133: 67–95. Ramseyer, JM.. (1994). ‘The Puzzling (In)dependence of Courts: A Comparative Approach,’ Journal of Legal Studies 23: 721–47. Randazzo, Kirk, Douglas Gibler & Rebecca Reid. (2016). ‘Examining the Development of Judicial Independence,’ Political Research Quarterly 69: 583–93. Reinle, Christine. ‘Violence, Feud, and Peacemaking’ in Jochen Schenk & Graham A. Loud (eds) The Origins of the German Principalities (Routledge, 2017) 1100–1350. Rios-Figueroa, Julio. (2007). ‘Fragmentation of Power and the Emergence of an Effective Judiciary in Mexico, 1994–2002,’ Latin American Politics and Society 49(1): 31–57. Salzberger, Eli. (1993). ‘A Positive Analysis of the Doctrine of Separation of Powers, or: Why do we have an independent judiciary?,’ International Review of Law and Economics 13: 349–79. Shapiro, Martin. Courts: A Comparative and Political Analysis (University of Chicago Press, 1981). Shetreet, Shimon and Sophie Turenne. ‘Constitutional Steps Towards Judicial Independence’ in Judges on Trial: The Independence and Accountability of the English Judiciary (Cambridge University Press, 2013). Solomon, Peter H. (2007). ‘Courts and Judges in Authoritarian Regimes,’ World Politics 60: 122–45. Staton, Jeffrey. Judicial Power and Strategic Communication in Mexico (Cambridge University Press, 2010). Staton, Jeffrey & Georg Vanberg. (2008). ‘The Value of Vagueness: Delegation, Defiance, and Judicial Opinions,’ American Journal of Political Science 52: 504–19. Staton, Jeffrey, Drew Linzer, Christopher Reenock & Jordan Holsinger (2019). ‘Update, A Global Measure of Judicial Independence, 1900–2015.’ https://​doi​.org/​10​.7910/​DVN/​NFXWUO. Stephenson, Matthew C. (2003). ‘When the devil turns: the political foundations of independent judicial review,’ Journal of Legal Studies 32: 59–90. Stephenson, Matthew. (2004). ‘Court of Public Opinion: Government Accountability and Judicial Independence,’ Journal of Law, Economics, and Organization 32: 59–89. Stephenson, Matthew C. (2006). ‘Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice between Agencies and Courts,’ Harvard Law Review 119: 1036–70.

The rise and protection of judicial independence  261 Stevens, Robert. (2001). ‘The Act of Settlement and the Questionable History of Judicial Independence,’ Oxford University Commonwealth Law Journal 1(2): 253–67. Sutter, Daniel. (1997). ‘Enforcing Constitutional Constraints,’ Constitutional Political Economy 8: 139–50. Tushnet, Mark. ‘Judicial Accountability in Comparative Perspective’ in Nicholas Bamforth & Peter Leyland (eds) Accountability in the Contemporary Constitution (Oxford University Press, 2013). Tushnet, Mark. (2015a). ‘Preserving Judicial Independence in Dominant Party States,’ New York Law School Law Review 60: 107–23. Tushnet, Mark. (2015b). ‘Authoritarian Constitutionalism,’ Cornell Law Review 100: 391–461. Vanberg, Georg. (2000). ‘Establishing Judicial Independence in West Germany: The Impact of Opinion Leadership and the Separation of Powers,’ Comparative Politics 32: 333–53. Vanberg, Georg. The Politics of Constitutional Review in Germany. (Cambridge University Press, 2005). Vanberg, Georg. ‘Establishing and Maintaining Judicial Independence’ in B. Caldeira, D. Kelemen & K. Whittington (eds) Oxford Handbook of Law and Politics (Oxford University Press, 2008). Vanberg, Georg. (2011). ‘Substance vs. Procedure: Constitutional Enforcement and Constitutional Choice,’ Journal of Economic Behavior & Organization 80: 309–18. Vanberg, Georg. (2015). ‘Constitutional Courts in Comparative Perspective: A Theoretical Assessment,’ Annual Review of Political Science 18: 167–85. Vande Zande, Daniel L. (2010). ‘Coercive Power and the Demise of the Star Chamber,’ The American Journal of Legal History 50: 326–49. Weingast, Barry (1997). ‘The Political Foundations of Democracy and the Rule of Law,’ American Political Science Review 91: 245–63. Weingast, Barry. (2016). ‘Capitalism, Democracy, and Countermajoritarian Institutions,’ Supreme Court Economic Review 23: 255–77. Wilson, Peter H. Heart of Europe (Belknap Press, 2016). Whittington, Keith. (2003). ‘Legislative Sanctions and the strategic environment of judicial review,’ International Journal of Constitutional Law 1: 446–74.

16. Politics of judicial governance David Kosař and Katarína Šipulová1

The power of courts has increased worldwide at an unprecedented pace. At the same time, judicial governance has changed as well. Most importantly, several regions have witnessed a steady rise in judicial self-governance. While in 1985 only­around 10 per cent of jurisdictions in the world had judicial councils or judicial appointment commissions, in 2015 these bodies participated in the selection of judges in almost 60 per cent of countries (Garoupa and Ginsburg 2015). This phenomenon is truly global. Many common law countries introduced judicial appointment commissions, which eventually became a dominant model in the Commonwealth (BIICL 2015), spanning from Australia (Bunjevac 2020) to South Africa (Oxtoby 2021; Brett 2022) and England and Wales (Gee, Hanzell & Malleson 2015). Even within the United States several states implemented the so-called ‘merit plan’ (or ‘Missouri plan’), which resulted in the rise of merit commissions involved in the selection of state judges (Volcansek 2009; Goelzhauser 2018). Several African and Asian countries entrenched a judicial service commission (e.g. Kenya, South Africa and Malaysia) or a judicial council (e.g. Tunisia and Bangladesh) in their constitutions (Oxtoby 2021; Bari 2022). Judicial councils spread also in Latin America, where they started to compete with the supreme courts over influence within the judiciary (Hammergren 2002; Bill Chavez 2005; Pozas-Loyo & Ríos-Figueroa 2018). Europe has gone even further. Many countries, such as France, Italy, Portugal, Spain, the Netherlands, and most recently Ireland have introduced judicial councils voluntarily (Kosař 2018; Castillo-Ortiz 2019). Virtually all post-communist states in Central and Eastern Europe did so under pressure from the European Union during the accession process (Bobek and Kosař 2014; Kosař 2016; Parau 2018). The key element of all these reforms was the transfer of powers concerning judicial governance from political branches to judges and bringing in the expert element. The new judicial self-governance bodies decide primarily on issues concerning the careers of individual judges. Judicial councils usually have broader powers, spanning from decisions concerning the selection, promotion, and disciplining of judges to various housekeeping functions (Garoupa & Ginsburg 2015; Kosař 2016). Judicial appointment commissions have a narrower mandate as they decide merely on the selection of judges. However, selection, promotion, and disciplining of judges and other decisions concerning the careers of individual judges are just a snapshot of judicial governance, which has undergone important developments in other areas, too. Judicial training has professionalised, and new specialised judicial academies have been introduced in many countries. Digitalisation, hastened by the COVID-19 pandemic, brought with it new tools and software. Even administrative decisions on the courts’ functioning, such as the overall number of judges assigned to The research leading to this project has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation program (INFINITY, grant no. 101002660). 1

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Politics of judicial governance  263 a court, the number and composition of panels at each court, the overall number of assigned administrative personnel and law clerks, case allocation, and judicial performance evaluation, were overhauled. Moreover, there is an increasing institutional variety in exercising administrative governance within the judiciary, as these tasks can be implemented not only by traditional bodies such as judicial councils, the Supreme Court, court presidents, and the ‘US-style’ judicial conference complemented by the Director of the Administrative Office of the U.S. Courts, but also by the novel agencies such as the Court Service (Geyh 2021) and the ‘Israeli-style’ Director of Courts (Lurie et al. 2019; Bunjevac 2020). This development reflects the growing demands placed on a modern client-oriented judiciary in the twenty-first century. The judiciary must be flexible and respond to novel challenges such as the COVID-19 pandemic, digitalisation, and calls for greater diversity. At the same time, old challenges have not disappeared. Politicians are still willing and able to tinker with the judiciary and align their decision-making with their preferences. Think of Hugo Chavez’s frontal attacks on the Venezuelan judiciary (Taylor 2014), Recep Erdoğan’s abrupt changes in judicial governance and purges within the Turkish judiciary after the failed coup d’état (Özbudun 2015; Esen & Gumuscu 2016; Varol, Pellegrina & Garoupa 2017; Olcay 2017), the Modi government’s interference with judicial appointments in India (Khaitan 2020), or Benjamin Netanjahu’s recent judicial reform proposal curtailing Supreme Court’s constitutional review competence and imposing executive control over judicial appointments (Weiler 2023). Even within the European Union we can see a backlash against the rise of judicial self-governance as several judicial councils in Central and Eastern Europe were hollowed out (Jakab 2020) or captured (Śledzińska-Simon 2018; see also Chapter 33 by Petra Bárd, Nóra Chronowski and Zoltán Fleck in this volume). These examples of a straightforward backlash against judicial self-governance by populist or authoritarian regimes show that the increasing involvement of judges in judicial governance is not a linear development. However, even in consolidated democracies some politicians as well as scholars have criticised the rise of judicial self-governance. They usually argue that the judiciary lacks democratic legitimacy, that too much judicial self-governance may lead to self-replication, non-responsiveness and corporativism of judges, and, more pragmatically, that judges do not have the necessary political capital to negotiate with other ministries the budgetary issues nor the political leverage to push through the necessary legislation in the parliament. These concerns resulted in including civil society members and non-lawyers in judicial appointment commissions (Gee et al. 2015), reducing the number of judges on a judicial council (Vauchez 2018), as well as retaining certain powers within the Ministry of Justice (Vasek 2022). This pushback against judicial self-governance took place in good faith and the relevant changes were made incrementally. Therefore, it should be distinguished from the backlash exercised by populist or authoritarian regimes.

264  Research handbook on the politics of constitutional law At the same time, political interferences with judicial governance triggered the proliferation of various international standards on the global2 as well as regional3 level. These international standards were initially treated as soft law, but their normative weight has increased over time. This development has also contributed to the judicialisation of judicial governance on the domestic as well as supranational level. On the domestic level, constitutional tribunals and supreme courts started reviewing judicial appointments, the disciplining of judges, and case assignment more thoroughly. On the supranational level, regional human rights courts, especially the Inter-American Court of Human Rights and the European Court of Human Rights, have been keen to shape domestic judicial design by creative interpretation of their founding documents (Kosař & Lixinski 2015). The European Court of Justice jumped on the bandwagon as well and developed a whole new set of requirements for judicial governance in order to respond to the attacks against the rule of law and judicial independence in Hungary, Poland, and Romania (Kochenov & Pech 2021; Kosař & Vincze 2022; Bustos 2022). The aim of this chapter is to conceptualise judicial governance, address the main challenges (both old and new) it faces, and identify the new trends therein. In doing so we bring insights from law as well as political science. We also look beyond the formal rules and institutional templates and emphasise the politics of judicial governance and the role of informal institutions. Our major argument is three-fold. First, we argue that we must go beyond the executive and judicial councils and also study other actors of judicial governance such as chief justices and judicial associations. Second, we show that channels of politicisation of the judiciary never disappear completely. The creation of a judicial self-governance body does not make the power disappear or the dangers evaporate. Power is just transferred to other hands and new channels of politicisation of the judiciary are created (Spáč, Šipulová and Urbániková 2018; Spáč 2020). Third, informal institutions and gender norms are crucial for understanding judicial governance. This chapter proceeds as follows. Section 1 conceptualises judicial governance and identifies its dimensions. Section 2 zeroes in on the growing number of relevant actors in judicial governance. Section 3 analyses its changing channels of politicisation. Section 4 identifies three recent trends in judicial governance (judicialisation, internationalisation, and standardisation) and their repercussions. Section 5 discusses informal aspects of judicial governance, which are often overlooked, yet form a proverbial glue that allows the smooth administration of the judiciary. Section 6 then demonstrates the importance of understanding the gender aspects of judicial governance. Section 7 concludes.

See e.g. Arts. 9 and 13 of the 2010 Magna Carta of Judges (https://​rm​.coe​.int/​2010​-ccje​-magna​ -carta​-anglais/​168063e431), Arts. 2.3 and 3 of the 1999 Universal Charter of the Judge (https://​www​ .iaj​-uim​.org/​universal​-charter​-of​-the​-judge​-2017/​), Art. 32 of the 2010 Report on the Independence of the Judicial System (https://​www​.venice​.coe​.int/​webforms/​documents/​default​.aspx​?pdffile​=​CDL​ -AD(2010)004​-e), Bangalore principles of Judicial Conduct of 2006 https://​www​.ju​dicialinte​gritygroup​ .org/​images/​resources/​documents/​ECOSOC​_2006​_23​_Engl​.pdf. 3 European Network of Councils for the Judiciary (2017). Performance Indicators 2017. Available at: https://​www​.encj​.eu/​images/​stories/​pdf/​workinggroups/​independence/​encj​_report​_ia​_ga​_adopted​ _ga​_13​_6​.pdf. 2

Politics of judicial governance  265

1.

JUDICIAL GOVERNANCE AND ITS DIMENSIONS

Judicial governance has been the buzzword for more than two decades. Questions on how best to balance principles of judicial independence and accountability, how to distribute the power between judges and politicians, insulate courts from political interference, prevent court-packing and telephone justice, and how to discourage judicial corruption and clientelism gradually increased in importance and became a salient topic of judicial studies scholarship as well as judicial reforms (on the clash between judicial independence and accountability see also Chapter 15 by Vanberg, Broman and Ritter in this volume). It is becoming evident that even the writ-small mechanisms such as panel composition, case allocation, and the internal flow of case files matter (Leloup & Kosař 2022). Yet, the term judicial governance itself is often misunderstood and wrongly simplified to decisions on the selection and promotion of judges, or their disciplining and removal (Malleson & Russell 2006; Lee 2011; Bobek 2015; Castillo-Ortiz 2019). These issues are important, but judicial governance is a much broader field that concerns every single aspect of courts’ functioning, including efficiency, transparency, ethical issues, and a more mundane day-to-day agenda of court administration, as well as more structural issues concerning the relationship of the judiciary with the executive and the legislature. In order to plausibly capture and understand the politics of judicial governance, this chapter therefore opts for a broad holistic understanding of judicial governance developed in the latest scholarship (Börzel & Risse 2010; Kosař 2018; Castillo-Ortiz 2019; Bunjevac 2020) that defines it as ‘a structured model of social coordination which produces and implements a set of institutions, rules, and practices which are collectively binding and which regulate how the judicial branch exercises its functions’ (Šipulová et al. 2022). Judicial self-governance then captures the extent to which judges and courts participate in judicial governance. While most scholarship on judicial governance, quite understandably, focuses on personal aspects concerning the careers of individual judges, such as the selection, promotion, and disciplining of judges, the concept of judicial governance is much broader. In order to see the developments within judicial governance more clearly, it is thus helpful to unpack judicial governance into smaller dimensions, each of them raising a specific set of issues and undergoing potentially different development (Kosař 2018; Bunjevac 2020). Tentatively, there are eight such distinctive dimensions: regulatory, personal, administrative, financial, educational, informational, digital, and ethical (Kosař 2018; Bunjevac 2020; Šipulová et al. 2022). These eight dimensions are visualised in Table 16.1. Each of them aggregates a set of individual competences related to judicial governance. So far, the most comprehensive list of such competences has been introduced in ‘the Judicial Self-Governance Index’, an analytical tool measuring the participation of judges in individual dimensions of judicial governance, irrespective of the institutional design of the field (Šipulová et al. 2022). The Judicial Self-Governance Index relied mostly on competences previously addressed or reflected by qualitative and quantitative scholarship4 deriving the competences from existing literature on judicial governance (Kosař 2018), governance of 4 Smithey and Ishiyama’s index (2002) for example mentions regulatory dimension, Hayo & Voigt (2016) indexed the selection, nomination, approval, and dismissal of judges. Gutmann & Voigt (2018) correlated the transfer of judges and cases, and Feld & Voigt (2003) operationalised powers related to the transparency and publication of case law as part of judicial governance. Similarly, budgetary arrange-

266  Research handbook on the politics of constitutional law Table 16.1 I. Regulatory

Dimensions of judicial governance Competences related to establishment, abolition, or changes in the jurisdiction and procedural rules of a court

II. Administrative

Composition of a court (setting the number of judges, panels, and their composition), work schedules, case assignment

III. Personal

Selection and (re)appointment of judges, promotions, removals, and transfers of judges (permanent and temporary), disciplining of judges, civil and criminal prosecution, evaluations of judges

IV. Financial

Size of a court’s budget, salaries of judges

V. Educational

Compulsory education (plan and structure) and further training and education of judges

VI. Informational

Publication of rulings, recordings of trials, annual reports, case assignment, disclosure of judges’ property, political affiliation, and some personal information

VII. Digital

Placement of servers with online data

VIII. Ethical

Preparation and interpretation of the code of conduct, extrajudicial activities of judges, communication with media

Source: Šipulová et al. 2022.

agencies (Verhoest 2013; Lurie et al. 2020; Mathieu et al. 2017), judicial independence, and effectiveness, as well as data collected by CEPEJ5 and EU Justice Scoreboard.6 The regulatory dimension relates to the entrenchment of courts and judicial systems in the constitution or statutory law. Due to their regulatory character, the powers belonging to this dimension (establishment or abolition of courts, changes in jurisdiction and courts’ structure, statutes and legal procedural rules) are wielded mainly by legislative power (parliament). With subsequent judicial empowerment, however, we have witnessed increasing, although formally subtle, engagement of courts, courts presidents, and judicial councils. Once established, judicial councils (or potentially chief justices) can be consulted on any systemic legislative changes in the regulation (Kosař and Šipulová 2018). Although their positions are typically not binding, they offer judicial actors’ bodies an important channel for stepping inside the regulatory framework and utilising informal powers and networks to influence this dimension of judicial politics. The administrative dimension targets the seemingly mundane, day-to-day functioning of courts: decisions on the number of judges assigned to a court, the structure of single- and multi-judge panels, as well as their respective compositions. Administrative powers also include the number and quality of administrative personnel or clerks, oversight of the system of case assignment (and reassignment), or evaluation of courts’ overall performance (quality of decisions, backlog, public spending). While the administrative dimension might seem less salient than selection and removal processes, it actually significantly impacts both the effectiveness of decision-making, as well as judicial independence itself. Many political or third-party interferences, particularly in democratising regimes, attempt to utilise administrative powers to shift the balance at courts and exert pressure on individual panels or judges.

ments, determination of judges' salaries, promotions, evaluations, and management of courts' tasks were included in older indices of judicial independence (Van Dijk 2021). 5 European Commission for the Efficiency of Justice, regular evaluation of European judiciaries available at https://​www​.coe​.int/​en/​web/​cepej. 6 An EU tool, part of the Rule of Law Toolbox, available at https://​ec​.europa​.eu/​info/​policies/​justice​ -and​-fundamental​-rights/​upholding​-rule​-law/​eu​-justice​-scoreboard​_en.

Politics of judicial governance  267 Case allocation is particularly sensitive administrative issue as some players might be tempted to attempt to assign their case to a friendly judge (Kosař 2016; Marcondes et al. 2019). The personal dimension naturally attracts the most political and scholarly interest and lies at the very heart of judicial governance. This dimension covers all decisions on selection, the careers and removal of judges, including decisions on their accountability via disciplinary (or criminal) motions. The dimension also covers the evaluation of judicial performance and ties it to decisions on financial bonuses and similar measures. The personal dimension is the most contested one, as the transfer of power to select judges from political branches of power to the judiciary itself has to fulfil both pragmatic (insulation from political pressure) as well as theoretical and doctrinal (democratic legitimacy) tests of justification. The financial dimension is much narrower and covers the financial or budgetary administration of courts: decisions on the size and allocation of a court’s budget and judges’ salaries. Financial competences are held almost exclusively by political actors, yet the distribution of power in this dimension is slowly attracting more attention and raising controversies in many, at least European, jurisdictions. The educational dimension captures decisions on the compulsory education and training of judicial candidates and judges. In recent years, we have seen a significant transfer of power from the executive branch to judges and independent agencies (such as judicial academies and associations) that took over many of the educational competencies previously carried out by ministries of justice (Wittreck 2018; Levi-Faur 2009; Lurie et al. 2019). There is a growing scholarship on judicial training (Dallara & Piana 2016), but the educational dimension has usually not been connected to the broader phenomenon of judicial governance (but cf. Parau 2018; Fagan 2019; Wittreck 2006; Benvenuti and Paris 2018). Yet, actors wielding educational powers both decide on the structure and content of these systems of education and significantly impact the pool of potential candidates eligible for the office of judge, as well as create expectations on the quality and scope of knowledge judges should have. The informational dimension concerns the relationship between judges (courts) and the public. Competences in the informational dimension set out decisions on the extent of transparency and visibility of judicial decision-making (publication and communication of cases, annual reports, and statistics) but also on the personal affairs of individual judges (disclosures of property, party affiliations, etc.). The digital dimension is a rather young aspect of judicial governance. It results from the growing corpus of data and databases available at courts. For instance, the body that regulates the where the servers with the case-law and internal court documents are located has a wide-reaching impact both on the internal management of courts, and on the de facto degree of transparency courts can actually achieve (e.g. ability to manage their own clouds and servers, or the opportunity to create new search engines). The digital dimension can thus also contribute to the visibility and accessibility of information on courts. Finally, the ethical dimension is very closely related to various disciplinary mechanisms against judicial misbehaviour. However, it is typically less formal, vested in the hands of a different actor (such as an ethical committee), and takes into account a different set of considerations than the traditional disciplinary measures. This dimension concerns, in particular, decisions on the preparation and interpretation of the code of judicial conduct, communication of judges with media or public (Ginsburg and Garoupa 2009), and the regulation of their extrajudicial activities.

268  Research handbook on the politics of constitutional law Each of these eight dimensions of judicial governance has a different degree of political salience and a different relationship with judicial independence, accountability, diversity, efficiency, and legitimacy. The transfer of some of these powers from the political branches to judges or ‘fourth branch’ institutions (and vice versa) can therefore be driven by different considerations and goals. For instance, the delegation of personal competences to judges pursues the goal of the insulation of judges from political pressure, but it still requires some extent of political engagement to give judges legitimacy and prevent corporativism and judicial corruption. Administrative competences are also predominantly held by judges, but in this dimension it is often a pragmatic decision that results from judges’ greater expertise in the day-to-day functioning of the judiciary, the informational gap between ministries of justice and court presidents, and the need for greater responsiveness from administrative governance to the actual needs of courts. In sum, it is necessary to study each dimension of judicial governance separately and only then to make claims about judicial governance as a whole, since it is quite possible that within the same country several dimensions may undergo different development. Each dimension of governance might be organised around different interests, and individual competences can be distributed among different sets of actors (see Section 2). For instance, decisions on the establishment, abolition, merger, division, and jurisdiction of courts are typically under the control of the legislature, even though judges have increasingly gained the ability to comment on and sometimes even shape judicial reforms via judicial councils or other bodies, in which they have the majority. Similarly, administrative decisions on the courts’ functioning, such as the overall number of judges assigned to a court, the number and composition of panels at each court, the overall number of administrative personnel and law clerks, case allocation, and judicial performance evaluation, can be exercised by a variety of actors – the executive, the legislature, a judicial council, the Court Service, court presidents, the ‘US-style’ judicial conference complemented by the Director of the Administrative Office of the US Courts, or the ‘Israeli-style’ Director of Courts. In other words, it is necessary to understand the variety of actors in judicial governance and their relationship, to which we turn next.

2.

ACTORS OF JUDICIAL GOVERNANCE: BEYOND THE EXECUTIVE AND JUDICIAL COUNCILS

The politics of judicial governance is often narrated through the ‘judges vs politicians’ lenses. The whole debate on the ideal distribution of power is thus framed via the question, Which branch of state power should have more powers in (a given dimension of) judicial governance?. However, this false dichotomy prevents us from understanding the complexity of actors, networks, and interests affecting judicial governance, and offers only a limited picture of how much impact judges actually have on judicial governance. The eight-dimensional structure of judicial governance includes a constellation of actors and institutions, typically represented by state bodies, judges, lawyers, politicians, and what we call ‘judicial self-governance bodies’: institutions established to take part in individual judicial governance competences, including at least one judge (Kosař 2018). These are typically judicial councils, court services, judicial appointment commissions, the Supreme Court, the chief justice, court presidents, judicial associations, and judicial academies.

Politics of judicial governance  269 Understandably, judicial councils have attracted most attention recently, because they are most visible and epitomise the judicial empowerment movement. They are also heavily promoted by supranational institutions that have considered them as the best bulwark against political interferences with the judiciary and an institutional guarantee of judicial independence. The burgeoning scholarship on judicial councils, which offers various categorisations of their strength and powers, showed though that their contribution to judicial independence or the quality of democracy is less clear and certainly not linear in all cases (Garoupa & Ginsburg 2015; Castillo-Ortiz 2019). Others show that their success is based on contingent circumstances such as embedded norm of professionalism in the Brazilian judiciary (Pozas-Loyo & Ríos-Figueroa 2023). However, it is also necessary to stress that judicial councils still do not exist in many countries, and even in those where they do, they offer only a fragment from the whole picture of how judicial governance works and how individual competences are organised among multiple actors. Although we can observe a certain convergence of supranational recommendations towards the strong judicial council dominated by judges (see Section 4), the models of judicial councils established across the world are actually quite diverse. They differ in composition (ratio of judges, politicians, and experts), powers (the number of judicial governance dimensions they are involved in), as well as in actors with whom they share these powers. The same claim applies to judicial appointment commissions, prevalent in the common law world, as their rationale and design vary a lot from one country to another (BIICL 2015; Bunjevac 2020; Brett 2022). In fact, the mere existence of a judicial council or a judicial appointment commission does not tell us much about the participation of judges in the judicial governance, since in all countries representatives of the ministry of justice, court presidents, the Supreme Court, judicial associations, politicians, and/or prosecutors participate in judicial governance to a certain degree as well. This became even clearer during the COVID-19 pandemic, when the ministers of justice used emergency powers to curtail court operation and shape judicial governance more broadly (Lurie 2021). The influence of judges on judicial appointments is not static either. Modi’s and Netanjahu’s judicial reforms show that politicians want to regain their powers and shape judicial appointments without the major input of judges (Khaitan 2020; Weiler 2023). The most recent scholarly works have also documented the rise of smaller actors such as judicial academies, directors of courts, and chief justices (Verhoest 2013; Lurie et al. 2020; Kosař & Spáč 2021). Judicial networks, which operate on both domestic and transnational level, became important actors of judicial governance (Dallara & Piana 2016), who are sometimes criticised for the lack of democratic legitimacy (Parau 2018). Combined with the creation of new areas of regulation, judicial governance is becoming a significantly decentralised field with a high level of power distribution. Interestingly, even in the countries where political branches still have the major say in judicial governance, such as Austria, Czechia, and Germany, judges can play a significant role. In Austria that is so because the key positions within the ministry of justice are actually filled by judges who are temporarily assigned to the ministry (Vasek 2022). In Czechia, it results from the fact that the ministry of justice informally delegated significant powers to court presidents who, due to their expertise, are better equipped to supply the short-term needs of judiciaries (Blisa et al. 2018). Contrary to general wisdom, Germany also shows a significant dose of judicial self-governance, since it features as many as eight judicial self-governance bodies.

270  Research handbook on the politics of constitutional law Germany just advances a different conception of judicial self-governance (than a judicial council model) which reflects the prevailing German understanding of democratic legitimacy and separation of powers (Wittreck 2018). This means that judicial empowerment is not a phenomenon exclusive to the establishment of judicial councils, but may permeate all institutional constellations of judicial governance (Šipulová et al. 2022). Vice versa, the creation of a strong judicial council dominated by judges does not prevent the further engagement of political actors in judicial governance as the executive may still decide on the court budgets, regulate the internal functioning of the court, appoint court presidents, or take part in the selection or promotion of judges. In sum, three interim conclusions can be made. First, the model of judicial governance does not in itself tell us who controls a given dimension of judicial governance. Second, the division of competences between politicians and judges is never absolute. Instead, both politicians and judges have a say in judicial governance. Judicial self-governance is thus a matter of degree and operates on the continuum rather than in the ‘either-or’ fashion. Third, judicial empowerment is not necessarily linear, as many countries have recently witnessed pushbacks against it (Uitz 2015). These findings also suggest that the binary ‘judges vs politicians’ logic, employed by the dominant judicial governance scholarship (Parau 2018; Castillo-Ortiz 2019; Mikuli et al. 2019), is flawed because it ignores other actors of judicial governance that do not come from any of these three branches of power. Very recent scholarship has observed a new trend of ‘agencification’ (Lurie et al. 2019). The gradual growth in the powers of many judicial governance actors has been accompanied by the increasing autonomy of their position vis-à-vis the judiciary, the legislature, as well as the executive (Jordana & Sancho 2004; Mathieu et al. 2017). This is very true even for some judicial councils and the perception of their role by other judicial governance actors. In the end, the majority of judicial councils are of mixed composition, opening up a vexing question which branch of power individual members represent, or to what extent they execute their offices as completely independent agencies. Compared to supranational recommendations, which clearly identify judicial councils as judicial bodies, the question to be pursued by theoretical scholarship is what position individual actors of judicial governance have within the system of separation of powers (Kadlec, Šipulová & Kosař 2022).

3.

CHANNELS OF POLITICISATION: OLD AND NEW

The ideological alignment of judges, especially at supreme and constitutional courts, is an important benefit for every government. To make it happen, the executive and the legislature in the past often used their influence over the sword or the purse7 to shape judicial governance. The Ministry of Justice, the Presidential administration, and the monarchy, each in its own way, found channels for politicising the judiciary. Politicisation of the judiciary reached its apex in the communist countries where the omnipotent Party carefully screened new judges, kept the elected judges on a short leash by short renewable terms and oversight by the General Prosecutor, dismissed or persecuted judges who dared to stand in the way of the socialist legality, gave instructions to judges on how to decide politically salient cases (a practice collo-

7



Hamilton in Federalist No. 78.

Politics of judicial governance  271 quially referred to as ‘telephone justice’), and assigned those salient cases to reliable hard-core communist judges in order to achieve the ‘right’ outcome (Kühn 2011; Ledeneva 2008). In consolidated democracies, many channels of politicisation of the judiciary have closed or have been exposed to public scrutiny. In the United States, the selection of Article III federal judges has remained deeply political, many aspects of judicial governance have been depoliticised, and the decisions thereon transferred to the Judicial Conference of the United States and the circuit judicial councils. In most Commonwealth countries, judicial appointment commissions took charge of many judicial governance issues. A similar trend of growing judicial self-governance took place in Europe and Latin America. However, the creation of a judicial self-governance body does not make the power disappear or the dangers of politicisation evaporate. Power is just transferred to other hands and new channels of politicisation of the judiciary are created. These channels differ from one jurisdiction to another. European experience is particularly insightful in this regard. The Slovak judiciary was politicised through the dominant role of the Chief Justice in the judicial council (Spáč, Šipulová and Urbániková 2018). The Polish judiciary has recently been politicised not only by the Minister of Justice, but also through court presidents and the new members of the National Council of the Judiciary elected by the parliamentary majority (Śledzińska-Simon 2018). In France and Italy, the major channels of politicisation of the judiciary are not the non-judicial members of their judicial councils, but judicial associations (Guarnieri 2004; Benvenuti and Paris 2018; Vauchez 2018). A recent scandal in Italy showed that politicians used judicial associations as a proxy for protecting their interests (Sallusti & Palamara 2021). In Germany, the main channel of politicisation is the promotion committees (Wittreck 2018). In Hungary, the major channel of politicisation of the judiciary is the new National Office for the Judiciary that took the key powers away from the Hungarian judicial council (Uitz 2015). In Spain and Turkey, politicisation of the judiciary has flourished due to the selection of judicial members of the judicial council by political branches. The difference is that while the Spanish judicial council has been captured by political parties (Torres 2018), in Turkey it is the presidential administration that currently has the major grip over the judicial council (Çalı & Durmuş 2018). Outside Europe, politicisation of judicial governance came from both the political branches and the judiciary. While Hugo Chavez used virtually all means to get the Venezuelan judiciary under control (Taylor 2014), in Mexico it was the Supreme Court judges who created patronage networks that maintained their grip over the judiciary (Pozas-Loyo & Ríos-Figueroa 2018). In Georgia, judicial selection has been dominated by judicial oligarchies using judicial councils to channel their power and influence (Tsereteli 2020). In China, the communist party controls the courts via party committees, party meetings, and training, opening the floor to growing judicial corruption (Wang & Liu 2021). In Zimbabwe, president Mugabe employed several techniques aimed to control the judiciary, from packing the Supreme Court to the removal of judges who refused to resign (Castagnola 2018). In Senegal, Uganda, and Madagascar, attempts at judicial review of election results led to episodes of violence (Llanos 2015), assassination (The Judiciary Insider 2018), or seizures of judges‘ property (Llanos 2015). In sum, the Ministry of Justice model of judicial governance is increasingly viewed as an anachronism, a remnant of the past that should be replaced by an autonomous self-regulated and depoliticised judiciary (Mikuli et al. 2019). However, lessons from across the globe tell us that judicial councils and other judicial self-governance bodies do not necessarily close the channels of politicisation of the judiciary. Judicial councils can be captured not only from the

272  Research handbook on the politics of constitutional law outside (Popova 2010; Torres 2018), but also from the inside (Pozas-Loyo & Rios-Figueroa 2018; Spáč, Šipulová and Urbániková 2018). Unfortunately, the Polish scenario also attests that politicians always find some judges who are willing to cooperate with them, no matter how obvious the sinister intentions of the judicial reform are (Śledzińska-Simon 2019).

4.

STANDARDISATION, JUDICIALISATION, AND INTERNATIONALISATION OF JUDICIAL GOVERNANCE

There are three major trends in judicial governance that go hand in hand: standardisation, judicialisation, and internationalisation. The standardisation encompasses various efforts to unify certain aspects of judicial governance and turn them into recommendations and later on into universal or at least regional standards. At the universal level it is difficult to find consensus and thus there has been little progress since the United Nations Bangalore Principles of Judicial Conduct (2002), despite the efforts of the United Nations Special Rapporteur on the independence of judges and lawyers. Other organisations and associations try to fill this gap. Mt. Scopus International Standards of Judicial Independence (2008) are probably the most advanced. At the regional level, there has been more development recently, especially in Europe. The Venice Commission, the European Commissions as well as the advisory bodies such as the Consultative Council of European Judges and the European Network of Councils for the Judiciary have produced dozens of opinions, declarations, and reports on most aspects of judicial governance (Bobek & Kosař 2014; Kosař 2016; Parau 2018; ENCJ 2021, De Visser 2015). Even more recommendations, guidelines, standards exist on the domestic level. Once the standards are at place, courts have the benchmarks for reviewing the legislative and executive acts concerning the judiciary. This in turn reinforces judicialisation of judicial politics. Of course, constitutional tribunals and supreme courts reviewed judicial reforms that interfered with judicial interference even before the supranational standards emerged. However, they usually focused on few selected issues such as disciplining, impeachment and removal of judges. That is no longer true, and we can see an increasing judicialisation of other areas of judicial governance across the globe. The Canadian Supreme Court declared the appointment of its new member, Marco Nadon, to be unconstitutional (Mathen 2015). The Indian Supreme Court struck down the constitutional amendment that changed the system of selection of supreme courts judges by transferring this power from the collegium of supreme court judges to the National Judicial Appointments Commission (Sengupta and Sharma 2018). The Italian Constitutional Court formulated the basic principles of constitutional conformity for process of cutting salaries of judges.8 The Spanish Supreme Court abolished the salary bonuses,9 the German Federal Administrative Court allowed the judicial review of case assign-

See Judgment of the Italian Constitutional Court sp. No. 223/2012 of 11.10.2012. See Judgment of the Spanish Supreme Court no. 2004\30 (STS, 3ª) of 7. 3. 2006. See also Contini, Francesco & Mohr, Richard. Reconciling Independence and Accountability in Judicial Systems. Utrecht Law Review. 2007, vol. 3, no. 2, pp. 34–35. 8 9

Politics of judicial governance  273 ment.10 In Central and Eastern Europe as well as in Latin America virtually every judicial reform ends up before constitutional courts too (Kosař 2017; Sadurski 2019; Helmke 2017). Judicialisation is further reinforced by internationalisation of judicial governance. In the Global South, the World Bank and the International Monetary Fund have been particularly active in shaping domestic judicial governance by their rule of law and judicial independence initiatives (White 2009). More recently, regional human rights courts, especially the European Court of Human Rights and the Inter-American Court of Human Rights, have been increasingly moving beyond their original mandates, and making determinations about the design of national courts and their governance, encouraging domestic judicial reforms (Kosař & Lixinski 2015; Leloup & Kosař 2022).11 In the European Union, the level of internationalisation and judicialisation of judicial governance reached a whole new level after the European Court of Justice abandoned its deference to Member States in this area and delivered the landmark Portuguese Judges judgment (Bonelli & Claes 2018). Since then, the European Court of Justice developed a massive case law that set several requirements for judicial governance in new as well as old European Union Member States (Leloup 2020; Kochenov & Pech 2021, Moraru & Bercea 2022; Kadlec & Kosař 2022). The European Court of Human Rights tries to catch up and these two supranational courts now thus engage in intensive cross-fertilisation of judicial governance ideas that sometimes go too far (Leloup & Kosař 2022; Karlsson 2022). Of course, not all countries are witnessing all of these three developments, at least not to the same degree. While European Union contributed heavily to all three trends, the United States have been resistant to all of them. Other regions show that supranational pressure may work well even without judicialisation. A typical example is Southern Africa, where several countries replaced opaque informal appointment systems inherited from the colonial era by merit-based system with judicial appointment commissions (Brett 2022). Brett shows that the rise of the merit orthodoxy in this region does not result primarily from judicialisation, but rather from the mix of domestic and supranational pressures that reflect broader social development in the decolonisation context. Finally, these three developments do not get through uncontested and are not irreversible. In fact, even within the European Union there is a considerable backlash against some of these trends, for instance in Kaczinski’s Poland and Orbán’s Hungary (Sledzinska-Simon 2018; Sadurski 2019; Uitz 2015). These two leaders want to dejudicialise politics in general and the politics of judicial governance in particular (Petrov 2022). What is important to note is, however, that all three trends largely ignore the complexity of judicial governance as a field. Repeated political tinkering with courts’ composition and independence, and increasing democratic backsliding encouraged standardisation of judge-dominated judicial governance and the vigorous judicial protection of this judicial design, but it overlooks the negative empirical experience of post-communist, post-authoritarian and developing countries (Hammergren 2002; White 2009; Kosař 2018; Šipulová et al. 2022). The international standards, now backed by supranational courts, perceive judicial governance as best organised by judges, ideally in a judicial council. This understanding is based on a conflation of judicial interests with interests in independent, fair and rule of law governed 10 See the judgment of German Federal Administrative Court of 28. 11. 1975 (BVerwGE 50, 11 = NJW 1976, 1224). 11 The nature and effects of this European transnational judicial dialogue is further discussed by Law in Chapter 17 of this volume.

274  Research handbook on the politics of constitutional law judiciary. Very few supranational bodies recognise and reflect threats of corporativism and judicial corruption, since they mostly rely on judges and self-governance as a bulwark against political interferences.

5.

JUDICIAL GOVERNANCE AND INFORMALITY

It is generally accepted that there is a great deal of informality in politics, but this wisdom is often forgotten when it comes to judicial politics. Informal exercise of power politics in judicial governance is perhaps even more important, as the decisions behind the closed doors in this area of governance may have significant repercussions for the rule of law (Zgut 2022). It is thus particularly important to discern what ‘the proverbial room where it happens’ is,12 who sits at its table, and what informal rules those sitting at the table apply. When discussing the engagement of actors, transfers of power, or politicisation channels in judicial governance, we often noted de facto powers or the ability of various players to utilise their informal influence. From the conceptual point of view, there are three standard ways in which the scholarship engages with informality and informal institutions in judicial governance: (1) through the prism of constitutional conventions; (2) from the institutional perspective which focuses on informal rules and practices; and (3) from a relational perspective that studies informal networks. Constitutional conventions are typically explored by legal scholarship (Stephenson 2021; Sirota 2011). Although they are not framed as capturing the informal dimension of judicial governance,13 they do entail a large portion of informality and rely on deeply rooted and repeated practices and rules that do not have a clear bearing in the written law. The majority of constitutional conventions related to the area of judicial governance revolve around the selection and appointment of apex courts’ judges or chief justices (Melton and Ginsburg 2014), or questions of judicial independence (Grove 2018). In Israel, the President appoints judges ‘in accordance with the selection of the Committee for the Selection of Judges.’ The unwritten convention is that the President is in fact bound by the opinion of the Committee and cannot deviate from the Committee’s list. Similar practices have been recently confirmed by the European Court of Human Rights at the backdrop of Icelandic system of appointment of judges (Karlsson 2022). In Germany, a constitutional convention concerning the election of Federal Constitutional Court judges allocates each of the major political parties a seat on the Bench to nominate an occupant on (Taylor G. 2014; Kischel 2015). The Supreme Court of Canada recognised a constitutional convention related to remuneration of judges as part of the rule of law and judicial independence guarantees.14 In sum, constitutional conventions are typically unwritten, yet socially followed and perceived as binding. They fill the gaps in written law and sometimes even get ‘absorbed by law’ (Sirota 2011), if recognised as binding by domestic courts. For example, in 2020 the Supreme Court of Israel acknowledged the enforceable character of the constitutional convention according to which the Knesset appoints one governmental and one opposition member for Hamilton musical. Technically, conventions may include both formal and informal institutions. Therefore, they cannot easily be categorised as a subgroup of informal institutions (Stephenson 2021; Sirota 2011). 14 See Remuneration of Judges of the Provincial Court (PEI) [1997] 3 SCR 3 (SCC). 12 13

Politics of judicial governance  275 the two parliamentary seats in the Committee for the Selection of Judges (Lurie 2022). The major puzzle related to conventions is whether they are more fragile and vulnerable to arbitrary change or expropriation and can easily lead to swift constitutional decay (Issacharoff & Morrison 2020), or to the contrary, whether they are so deeply embedded and socially shared that they can resist the attempts to change them through new legislation. On the other hand, informal institutions are a domain of social science research. They are often described as the invisible social glue of political systems (Jakab 2020; Dunoff & Pollack 2018), filling in the gaps of formal regulation. They are created outside officially sanctioned channels (Helmke & Levitsky 2004). Their interaction with formal rules and practices is quite complex: they can complement, accommodate, but also compete with or even replace formal institutions (Helmke & Levitsky 2006). They emerge either where formal institutions exist but are incomplete, ineffective, too difficult to change, or contradictory to actors’ (publicly non-acceptable) goal (Helmke & Levitsky 2005; Lauth 2015), or in the space where formal institutions do not exist at all (Lauth 2015). Informal institutions are essential for judicial independence and the rule of law. Depending on their consonance with values underlying formal institutions, they can either subvert or protect the rule of law and the quality of democracy. The dissonance between formal and informal rules and practices is sometimes described as the hollowing out of democratic institutions. For example, ‘gentlemen’s agreements’ between judicial associations may compete with or even substitute for formal rules governing the selection and promotion of judges (Pierson 2000; Pozas-Loyo & Rios-Figueroa 2018). These pacts may in turn entrench patronage (Guarnieri 2013; Benvenuti & Paris 2018; Vauchez 2018), nepotism (Spáč 2020) and vertical gender segregation (Sofos 2020). Similarly, politically savvy chief justices can tweak the formal rules and forge informal alliances with politicians (Kosař & Spáč 2021), with other court presidents (Kosař 2017), or with transnational judicial networks (Dallara & Piana 2015; Parau 2018). Informal practices like corruption (Popova 2012b), telephone justice (Popova 2012a; Ledeneva 2008), and clientelism (Popova & Beers 2020) may undermine existing formal institutions. On the other hand, many informal institutions also have positive effects. Well-functioning informal institutions may increase the efficiency and quality of judicial decision-making, and, in the long run, also increase the resilience of formal democratic institutions. Interestingly, compared to legal research which perceives conventions as too susceptible to revision, social scientists argue that informal institutions are more difficult to change (than formal frameworks) because they are deeply embedded in social behaviour and less transparent to individual actors (North 1991). Judges typically take part in various informal networks, learning best practices across supranational levels (Dothan 2021). Overall, however, the informal rules and practices with neutral or positive effects are much less explored, with only a few pioneering studies engaging with judicial associations and transnational networks, norms diffusion, and inter-court dialogues. Yet, the workings of informal institutions, particularly in European jurisdictions, are heavily under-studied. The existing scholarship so far has focused mostly on negative repercussions of informality in Latin America (Pozas-Loyo & Ríos-Figueroa 2018) and South-East Asia (Dressel, Urribarri & Stroh 2017; Harper & Colliou 2022) and the detrimental effects of corruption, nepotism, and patronage on selection processes and judicial independence. Only a few studies have explored the role of judicial culture in democratic decay in European countries (Jakab 2020; Zgut 2022), or the role of informal networks in selection processes in the USA

276  Research handbook on the politics of constitutional law (Bird & McGee 2022). The largest number of studies on informality engaged with probability and patterns of judicial decision-making (Randazzo 2008). Overall, a little more attention, although largely incidental, has been paid to informal networks created among actors of judicial governance. From the relational perspective (Dressel, Urribarri & Stroh 2017), it is important to acknowledge that judges are embedded in various circles of social interactions and their behaviour (on and off bench) is shaped by relational flows in networks to which they belong. This observation is mostly ignored by legal scholarship as well as the supranational approach to judicial governance, that prefers to see judges as independent, autonomous on other actors, and unburdened by any polarising interests apart from the delivery of justice. As studies from the post-communist countries however show, judicial networks and networks judges take part in significantly shape clientelistic relations inside the judiciary, and manage to deform the results of formal designs of merit-based selection processes (Tsereteli 2022). Although the relational perspective allows us to see also many positive informal institutions, leading to stronger judicial dialogues, social responsiveness, or the legitimacy of courts, it is the networks interfering in judicial independence that attract more academic interests. Yet, uncovering extra-judicial networks (connections of judges to politicians and third actors) is extremely difficult. While Tünde Handó’s proximity to Viktor Orbán is well known (Uitz 2015), to uncover such informal relations in other jurisdictions might be extremely difficult, yet crucial. For instance, in Slovenia one can hardly assess the functioning of the judicial council without knowing about the dense web of informal networks that made important decisions outside the judicial council (Avbelj 2018). In France, Italy, and Spain it is crucial to know who belongs to which judicial association (Vauchez 2018; Benvenuti & Paris 2018; Torres Pérez 2018). In Czechia court presidents have created several informal groups that have a major say in key areas of judicial governance (Blisa et al. 2018). Informal networks may also affect different stages of the recruitment of judges, in both Europe (Spáč 2018) and the Americas. The rules and practices created within these networks can completely replace existing formal arrangements. For example, gentlemen’s agreements between judicial associations more or less replaced formal rules on the selection and promotion of judges in Mexico (Pierson 2000; Pozas-Loyo & Ríos-Figueroa 2018), and significantly deform selection processes in Italy (Benvenuti 2018). In the post-communist area, politically savvy chief justices still manage to tweak the formal rules and forge informal alliances with politicians (Kosař & Spáč 2021; Tsereteli 2022), with other court presidents (Kosař 2017), or with transnational judicial networks (Dallara & Piana 2015; Parau 2018) In China, institutional proximity between the Party, the administrative apparatus, and the courts facilitated judicial corruption (Wang & Liu 2022). Fortunately, recent political science scholarship has made significant progress in conceptualising and analysing such informal networks (Dressel, Urribarri & Stroh 2017, 2018), and it is high time to apply these insights in legal scholarship and, even more importantly, in practice. As we have demonstrated above, supranational bodies, particularly two European courts, are increasingly active in shaping the regulation and policies of judicial governance. Yet their monitoring of institutional systems remains blind to the informal sphere of politics (Zgut 2022). As we have demonstrated in this section, informal institutions are difficult to capture and change; however, they are crucial for understanding how the judiciary works in practice and they play an indispensable role in the effective and efficient functioning of formal democratic frameworks.

Politics of judicial governance  277

6.

JUDICIAL GOVERNANCE AND GENDER DIVERSITY

Judicial governance can serve many goals. Constitutional and supranational courts tend to emphasise judicial independence and the rule of law.15 However, new public management expects courts also to become accountable, transparent, efficient, and quality-oriented. Judicial governance thus should deliver, and in fact balance, these often-competing values (Mak 2008; Dunoff & Pollack 2017). To make things even more complicated, there is a growing consensus that courts should attend to the challenges of equality and diversity (Malleson 2009; Resnik 2021). Hence, judicial governance should be designed to promote not only the rule of law and new public management values, but also diversity of the judiciary (Malleson 2009; Grossman 2012; Rackley 2013). Gender diversity has gradually become the most prominent, albeit not the only one (Resnik 2021; Weinshall 2022), issue in diversifying the judiciary. It is worth noting that the idea of (gender) diversity on the bench is generally accepted irrespective of its eventual impact on courts’ decision-making, since the evidence on whether female and male judges decide cases differently is still conflicting (Boyd at al 2010: 392; Peresie 2005; Tate & Handberg 1991; Songer and Johnson 2007; Weinshall-Margel 2011; Eisenberg et al. 2012). The arguments for gender diversity typically include positive effects on public trust in the judiciary (Resnik & Dilg 2006), structural impartiality of courts (Lawrence 2010; Chen 2003), a better diversity of experience and knowledge (Weinshall 2022; Resnik 2021), following by increased quality due to the enlarged pool of candidates (Rackley 2013: 25–27). However, until recently, gender aspects of judicial governance have been underresearched and most studies on female judges focused primarily on descriptive gender representation and barriers for access of women to judicial profession (Arana et al. 2021; Arrington et al. 2021). This research explains women’s access to courts with different structural and institutional factors that are often interrelated. Female judges benefit from (1) improved educational possibilities in law for women increase the pool of eligible women judges (Williams and Thames 2008; Sonnevold 2017; Sonnevold & Lindbekk 2020), (2) changes in cultural gender norms towards leadership and family life (Duarte et al. 2014; Harwa 2016), and (3) recruitment of judges based on transparency, objective merit-based criteria, and formal rules rather than on discretion, opaqueness, and informal patronage networks that tends to benefit men (Schultz & Shaw 2013; Kenney 2013; Boigeol 2013). In other words, introducing more merit-based and transparent appointment procedures for judges based on competitive examinations has often helped women circumvent the largely male power networks that previously excluded them from the judiciary (Tøraasen 2022). The problem of access of women to the judiciary permeates most common law countries. Civil law countries fare better in terms of overall gender representation in courts. However, if women have the same chances to enter the judiciary, it does not necessarily mean that they will progress like their male colleagues. Several studies actually show that in judiciaries with majority of female judges women still face ‘glass ceilings’ and struggle to reach the apex courts (Valdini & Shortell 2016; Goldar 2020). The barriers to progress are similar to barriers of access, namely (1) opaque and informal process of promotion of judges (Zheng et al. 2017, Pozas-Loyo & Ríos-Figueroa 2018; Escobar-Lemmon et al. 2021) and (2) gender

See above.

15

278  Research handbook on the politics of constitutional law norms resulting in different work-life balance of women and men (Schultz 2013; Kalem 2020; Havelková et al. 2021). A similar pattern applies to other important positions within the judiciary such as the chief justices and court presidents that tend to be dominated by men (Havelková et al. 2021), even though Africa shows that a considerable progress is possible even this area (Dawuni & Kang 2015). Nevertheless, women still face more obstacles if they want to reach positions of power and influence within the judiciary. So far only few studies analysed the impact of introducing expert bodies on gender representation. Existing studies concern mostly common law countries and judicial appointment commissions or merit commissions (Iyer 2013; Blackwell 2017; Dawuni & Masengu 2019; Masengu 2019; Escobar-Lemmon et al. 2021). They tell a cautionary tale. While replacing the executive models of judicial governance by judicial councils and judicial appointment commission might professionalise the selection and promotion of judges, it may do so slowly and incrementally (Iyer 2013) or only if other conditions are met (Malleson 2006). Moreover, expert bodies do not necessarily eradicate privilege and power dynamics since they may create a different type of dynamic that can be harmful for women (Masengu 2019). The existing research also shows that there is no one size fits all solution for consolidated, developing and post-conflict societies with widely diverging general gender norms. Counterintuitively, in some countries ‘gender-neutral’ judicial reforms aimed at strengthening the judiciary or the bureaucratisation of the judiciary have done more for women’s judicial representation than explicitly gender-targeted policies that often meet stiff resistance (Jasper 2022; Tøraasen 2022). Finally, to our knowledge, the role of gendered norms in other areas of judicial governance beyond the selection and promotion of judges such as case assignment, composition of panels, judicial training, and extrajudicial activities of judges has not been studied thoroughly at all. Future research should explore these areas systematically as well.

7. CONCLUSION The development of dynamics in judicial governance have mirrored the rise, pushback, and backlash against judicialisation politics and the increasing importance of the courts. In a few decades we have seen a shift from executive-led judicial governance models to judicial councils and other judge-dominated bodies (judicial self-governance) and, more recently, attempts to dilute judicial power in the governance and administration of courts by including civil society members and other non-partisan actors and to construct judicial councils as more autonomous agencies standing beyond all three state powers. Compared to international optimism accompanying the boom of judicial councils, recent empirical studies suggest that reliance on judge-dominated judicial governance is very problematic (Bobek and Kosař 2014; Bobek 2015, Kosař 2018; Spáč 2020; Kosař and Spáč 2021; Šipulová et al. 2022), that it does not bring with it more efficiency or judicial independence (Gutmann & Voigt 2018; Hayo & Voigt 2016), nor does it offer better protection from political interferences (Varol et al. 2017). Strikingly though, in particular European supranational policies seem to continue ignoring these findings. In this chapter we have provided a bird’s eye view of the key policies and most contested issues of judicial governance. First, the judicial governance field is broad and should not be conflated with the selection and disciplining of judges. As we have demonstrated, it has dozens of areas organised in various dimensions whose importance is gradually increasing. Second, it

Politics of judicial governance  279 is a multi-actor field. Recent trends demonstrate that we need to look beyond judicial councils as, even in governance models with judicial councils, several other actors, from ministries of justice to judicial academies, retain significant powers. Third, the dynamics of judicial governance or the rise of judicial councils cannot anymore be explained solely through the binary judges vs politicians logic. Empirical experience from several countries suggests that (a) judges hold significant powers in ministerial as well as judicial council models, they are nested inside various bodies with mixed composition, and none of these actors operates in a vacuum – instead, they cooperate and share judicial governance powers; (b) studies from non-European regions suggest that the proliferation of judicial councils was, in fact, motivated not by power distribution within the three branches, but by social and supranational pressure (Brett 2022; Garoupa 2022). Fourth, we noted two trends, agencification and power de-concentration, in the field of judicial governance, which suggest that individual judicial governance actors can no longer been squeezed into the three traditional state powers. Instead, they increase their autonomy gradually become a guarantor institution rather than body that represents any of the three traditional branches. These considerations are important for a proper understanding of the power dynamics in the judicial governance field, particularly in the face of increasing challenges to judicial councils based on pragmatic (willingness of politicians to capture and control the courts) and normative (lack of legitimacy of courts to govern) considerations. As we have demonstrated in this chapter, judicial governance is a highly complex phenomenon the contours of which go far beyond the selected model of court administration, since even judges in the Ministry of Justice model of court administration can have significant powers. The number of actors and agencies that participate in judicial governance has gradually increased, and has brought more expertise and less partisanship into the field (Kosař and Spáč 2021; Kosař and Blisa 2018). Accordingly, the focus of scholarship on judicial governance and politics should be redirected from judicial councils to other actors. At the same time, judicial councils require more theorising. While if well designed they can eliminate some political interferences, they are also known to freeze informal rules and practices present within the judiciary. This brings us to the need to reconceptualise judicial councils at the backdrop of new literature on the fourth branch institutions and autonomous agencies (Tushnet 2021; Khaitan 2022). More attention should be paid to the perceptions and expectations of judicial councils in respect of interests they should represent (as a part of the judiciary, a coordination body between representatives of all three branches, or a post-branch institution that is completely autonomous on any of classical three powers, Kadlec, Šipulová and Kosař 2022).

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17. The politics of judicial dialogue David S. Law and Mark Tushnet

The idea of judicial dialogue entered into scholarly discussion in the late twentieth century in connection with two distinct phenomena – one transnational, another domestic. The transnational variety of judicial dialogue occurs among judges in different countries, particularly on topics of a supposedly universal character such as human rights.1 The domestic variety takes place among apex courts and the political branches within a particular jurisdiction.2 Each form of dialogue is associated with a form of politics. To oversimplify, judicial dialogue of the transnational variety has been associated with efforts by apex courts, especially constitutional courts, to strengthen themselves by affiliating themselves with prestigious courts and exerting ‘soft’ power over courts elsewhere. Domestic interbranch dialogue by contrast has been associated with efforts to defend and justify the role of courts vis-à-vis other government actors. In democratic polities, the idea of judicial dialogue bolsters the position of the courts by taking the sting out of the charge that they are being too active and thus behaving in ‘countermajoritarian’ or ‘antidemocratic’ ways. Conversely, in transitional or hybrid regimes and other settings where political conditions might favour judicial timidity, the notion of dialogue might instead be used to defend the courts against the charge of being too passive and thus failing to do their duty.3

1.

TRANSNATIONAL JUDICIAL DIALOGUE

Constitution-making in the second part of the twentieth century had several growth spurts: after 1945 in the defeated Axis powers and some of the nations they had occupied, the 1950s and early 1960s with decolonisation, in the 1970s with the demise of many Latin American dictatorships, and in the 1990s with the end of the Soviet empire. These growth spurts produced and were supported by a utopian project that envisioned a universal legal order capable of regulating and restraining armed conflict, advancing the rule of law, and promoting democracy and fundamental rights.4 Domestic constitutional law would work hand in hand with public international law toward these goals, mirroring and reinforcing each other in their respective spheres. This post-war project was carried out by state actors in every sector of government, including foreign affairs and trade ministries. As constitutional courts gained domestic power, typ-

1 See e.g. Slaughter (2004); Slaughter (2000); Waldron (2005); Law (2015), 946, 958 (citing examples). 2 See e.g. Hogg & Bushell (1997); Kavanagh (2016); Law & Hsieh (2022), 188–90, 192–96, 211–12. 3 See e.g. Yap (2015), 22–27; Tew (2020), 92–106. 4 For a description and critique of this project, see Moyn (2010).

286

The politics of judicial dialogue  287 ically gradually,5 they enjoyed growing opportunities to advance the project by participating in transnational exchanges of their own. Cast in a utopian light, courts and judges could be pioneers in pushing the frontiers of the new order through sincere, egalitarian, and discursive dialogues with counterparts and colleagues around the world. The realities of international relations and domestic politics alike, however, rendered that outcome highly unlikely. 1.1

The Types and Characteristics of the Dialogues that Do Occur

The dialogue metaphor encompasses more than one type of behaviour and thus obscures a number of analytical distinctions. One distinction concerns the type of actors involved in the dialogue. Dialogue can occur between individuals, institutions, or some combination of the two; in the judicial arena, we might distinguish between judge-to-judge (‘J2J’) and court-to-court (‘C2C’) dialogue, either of which can involve politics in multiple senses of the word.6 At the C2C level, for example, courts may jockey for position and influence vis-à-vis each other on an international stage, as when the Korean Constitutional Court takes the lead in forming an Association of Asian Constitutional Courts and decides who will be tapped to join the club.7 The same type of politics can be observed at work in the J2J setting whenever a coterie of judges decides who will be invited to their latest conference and who will not. In the J2J context, however, the politics of transnational dialogue can become more complex and explosive because they have the potential to interact with the internal politics of the court. Participation in transnational networking activities may be highly uneven even among members of the same court. Almost by definition, the participants are likely to be somewhat more cosmopolitan in orientation than their stay-at-home colleagues. These intra-court differences can reinforce existing fissures or generate new ones. Disagreement over the question of whether and when to consider foreign law can become yet another front in the battle among the judges to shape domestic law. A further distinction must be drawn between judicial dialogue of the literal and figurative varieties.8 Judicial dialogue of the literal variety refers to actual interaction and communication among judges. The mere fact that apex court judges from different countries meet with each other is incontestable and not especially controversial. Professionals in every field interact with foreign counterparts, and there is no obvious reason why judges would constitute an exception. Nor is advancement of a utopian project always on the agenda: mundane questions about effective judicial administration are a frequent topic of discussion, especially at the C2C level. The most visible venues for judicial dialogue in a literal sense include various international and regional organisations of constitutional and apex courts9 and informal scholarly meetings such as the long-running Yale Global Constitutional Law seminar. To use a metaphor made popular in the late 1990s, there are indeed networks of constitutional court judges.10 The plural Tate & Vallinder (1995). Mak & Law (2022), 237. 7 Law (2015), 975. 8 Mak & Law (2022), 236–38. 9 For a partial list of such organisations as of 2009, see Final Declaration, World Conference on Constitutional Justice, Capetown, 22–24 January 2009, available at https://​perma​.cc/​E4B9​-DGM4; see also Law (2015), 975–76; Mak & Law (2022), 237–38; De Visser (2022). 10 For an analysis of the network metaphor, see Riles (2000). 5 6

288  Research handbook on the politics of constitutional law matters, though. Judicial dialogue tends to be fragmented and cliquish rather than global and inclusive.11 Most of the networks overlap with others at only a few points, and what matters to participants in one network may be of little interest to those in another. Judicial dialogue of the figurative variety is the focus of a much larger literature, most of it normative, and refers to situations in which judges consider and engage in some sense with what their counterparts elsewhere have said or done. That engagement can involve emulating and endorsing foreign law, or criticising and rejecting foreign law, or some combination thereof. There is no guarantee that this engagement will occur explicitly, as in the form of a citation to a foreign authority; it can also occur behind closed doors, or in ways that may be visible only to an insider or a trained observer. In many settings, judicial engagement with foreign law is routine or even automatic; in others, such as the United States, it can be highly controversial. Generally speaking, the greater the discretion that judges have in deciding whether to consider foreign law, the more they open themselves to potential criticism for doing so. ‘Dialogue’ is not an especially apt metaphor for this sort of behaviour. There may not be any intention on the part of any court or judge to actually communicate with a foreign counterpart. A citation in a judicial opinion is typically intended for the consumption of a domestic audience, not a foreign audience. That remains the case even if the citation is to foreign law. The metaphor of dialogue is also misleading because it conjures up a picture of mutual learning and enlightenment among participants equally empowered to speak and be heard. In reality, the conversations are often not terribly egalitarian – perhaps better described as monologues than dialogues, or transmission from one side to another.12 Participants carry into these venues the baggage of their nations of origin: those from nations with longer experiences of constitutional review will understandably have a larger ‘data base’ from which they can draw ideas than will those from nations with shorter experiences – and the length of experience correlates with other dimensions of international power. As in other domains comparative constitutional law, participants from the Global North are likely to dominate the discussions. Even when some judges from the Global South offer novel ideas – such as the idea of enforcing social and economic rights through domestic dialogues and ‘engagement’ remedies13 – their colleagues from the Global North often resist or seek to transform the ideas in ways that limit their transformative potential.14 In other words, this so-called dialogue is saturated with core-periphery dynamics and has a tendency to replicate and reinforce existing hierarchies. In spite of its misleading qualities – or perhaps because of those qualities – the metaphor of dialogue has stuck. It has become the dominant shorthand for the transnational circulation of legal norms, ideas, authorities, and arguments among courts and judges. Its appeal and its power may very well lie in its lack of realism: it is, at root, a utopian metaphor in service of a utopian project.

11 It is even possible for the same court to be divided into multiple cliques, as in the case of the Canadian Supreme Court, where anglophone and francophone judges have access to different transnational networks that track linguistic lines. 12 See e.g. Chang & Law (2011), 528. 13 On engagement remedies, see e.g. Ray (2016); Rossi & Brinks (2022), 263. 14 For a discussion, see Davis (2015).

The politics of judicial dialogue  289 1.2

‘Measuring’ Transnational Judicial Dialogues

That constitutional court judges meet and talk with each other is a mildly interesting fact. The utopian project hopes that the dialogues will have some effects. Determining whether they do is difficult, both at the base level – can we discern any effects of transnational influences? – and at the level of evaluating the significance of the effects we might be able to see. Scholars often use citations to non-domestic decisions as a measure of transnational influence. In practice, the value of doing so can be questioned. Scholars from the common law world might be particularly inclined to rely upon citation-tracking. Even within common law systems, this might be misleading. Citation-tracking has the potential to both overestimate and underestimate the influence of foreign jurisprudence. Overestimation can occur because foreign law citation does not equate to foreign law influence. Some relatively cosmopolitan judges might include such citations as decorations to show how erudite they are. A frequent concern, at least on the normative level, is ‘cherry-picking’: judges decide what they believe is the best interpretation of their constitution, then search the world for materials that support that predetermined conclusion. In such cases, foreign jurisprudence has no effect on judicial deliberations or reasoning and serves merely as window-dressing. Conversely, underestimation can occur because absence of foreign law citation does not equate to absence of foreign law influence. Political sensitivities surrounding judicial use of foreign law may lead to what might be called stealth comparativism, meaning that foreign law is influential but judges make a point of avoiding smoking-gun evidence in the form of explicit citations.15 Underestimation is likely to be especially severe with respect to constitutional courts operating within a civil law tradition in which citations of any sort are sparse or nonexistent. In such contexts, even a foreign opinion that has been genuinely influential may leave no trace in the domestic opinion that is visible to an untrained foreign observer. The constitutional courts of South Korea and Taiwan are cases in point. Both routinely survey foreign law: many of the justices and most of the clerks on the Taiwanese court have studied law overseas, while the Korean court has multiple research arms and a variety of staff charged with surveying various aspects of non-domestic law on issues of interest.16 All of this knowledge and research may actually affect the substance of the decision yet is unlikely to manifest itself in the form of explicit citations to foreign material.17 Even when citations occur, their significance can be exaggerated. For example, Niels Petersen cites the interaction between the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR) as evidence that judicial dialogue is not always a ‘one-way street,’ even between courts of admittedly unequal influence.18 Empirically speaking, the exchange between the two courts is a heavily lopsided one in which the latter court routinely cites the former, but not vice versa. Petersen seizes upon the IACtHR’s recognition of positive state obligations to prevent violence against women, and the ECtHR’s subsequent citation of that decision in the course of adopting a similar approach, as evidence

See e.g. Law (2005), 738 (citing the Canadian example of Justice Ivan Rand’s use of US free speech jurisprudence). 16 For a description, see Law (2015), 964-73 17 Chang & Law (2011), 533; Law (2015), 700. 18 Petersen (forthcoming). 15

290  Research handbook on the politics of constitutional law of genuine dialogue between the two courts as opposed to mere monologue. Even in this isolated case, however, the relationship between the two courts smacks more of master and apprentice, or core and periphery, than of dialogue between equals: the high-prestige court does the big-picture work of fashioning an overall framework for equality jurisprudence, while the sidekick fills in the details of that framework in the specific context of violence against women. The master draws the lines; the apprentice colours within the lines. Empirical studies have identified some features of citation practices, with some implications for understanding the politics of these processes. Within Europe, most courts have a ‘favourite’ source for non-domestic citations: Ireland to the United Kingdom; Austria, Spain, and Switzerland to Germany; Belgium and Italy to France.19 These patterns are not random but instead reflect historical relationships of prestige and power, if not imperialism and outright colonialism. Thus, in Asia, Hong Kong and Singapore look to English-speaking common law courts, while Taiwan and South Korea continue to take at least some of their cues from Germany – an enduring vestige of the choices made by their Japanese colonial masters. Language skills are a major reason why judges cite some courts but not others, a fact that leads Gelter and Siems to offer the policy prescription that ‘countries should provide English translations of their highest court decisions.’20 This would reinforce the role of English as the new lingua franca, reproducing Imperial Rome’s transnational power in the modern era.21 The empirical literature on citation practices is relatively thin and tends to focus on the same handful of countries, mostly in the Global North.22 The studies do suggest that the ‘usual suspects’ – the ECtHR, the German Federal Constitutional Court, and the apex courts of Canada, the United States, and the United Kingdom – are the major ‘providers’ of citations or exporters of jurisprudence, although some are more influential within a particular network or peer group. Hirschl suggests that these choices ‘reflect the judicial image of the “right” culture and “suitable” set of values the borrowing polity ought to follow.’23 The resulting engagement, he continues, ‘is at least as much an identity-constructing political phenomenon as it is a juridical one.’24 1.3

Why Transnational Judicial Dialogue?

The main reasons for which constitutional judges engage in TJD can be divided into four broad categories: (i) legal and institutional, (ii) functional, (iii) normative, and (iv) diplomatic. Motivations can also vary according to the type of actor. Individuals and institutions are not always aligned in their approach to foreign law; nor are individuals within the same institution. Individual judges may embrace or reject TJD for reasons that are not shared by their respective colleagues or institutions, and such divergence generates its own species of intra-institutional politics. (i) Legal and institutional reasons. The twentieth-century proliferation of transnational legal regimes has ensnared domestic and transnational courts alike in a complex web of legal and

21 22 23 24 19 20

Gelter & Siems (2012). The article examines non-constitutional as well as constitutional courts. Ibid, 93. See van Parijs (2011). Hirschl (2014), 39; Groppi & Ponthoreau (2013). Hirschl (2014), 39. Ibid, 76.

The politics of judicial dialogue  291 institutional relationships that incentivise or require them to deal with each other on a regular basis. This entanglement potentially exists to some degree wherever national courts must contend with international law and international tribunals – which is to say, everywhere – but is most obvious and extensive in Europe25 and also prominent in Latin America,26 both of which are home to overlapping and sometimes competing regional courts. The coexistence of multiple legal orders that pursue shared goals such as rights protection and economic integration calls for courts to coordinate as well as compete with each other. The resulting genre of judicial politics involves a mix of vertical and horizontal interaction, much of which might be described in some sense as dialogic. Vertical interaction – meaning interaction of a hierarchical variety – occurs for example when domestic courts are formally obligated to respond to decisions by regional courts. Often, these responses amount to nothing more than routine efforts by domestic courts to faithfully apply governing law that happens to be transnational in origin. Sometimes, however, these responses occur in terms that might be described as inviting or constituting dialogues of the sort described in Section 2 of this Chapter. Even when transnational and domestic courts stand in a hierarchical relationship to one another, their interaction often involves a measure of give-and-take as opposed to command-and-control.27 Transnational courts may have limited means at their disposal for compelling national courts to do their bidding, while national courts may have both the motivation and the means to resist claims of supremacy by transnational courts. Instead of wholesale capitulation, for example, national courts may reserve themselves the right to impose national constitutional limits on the reach of transnational law.28 The result is a back-and-forth – some might say dialogue – over questions of ultimate legal power and authority. Horizontal interaction – meaning interaction among coordinate institutions – can occur among courts anywhere. By their very nature, however, transnational legal orders and regional integration projects tend to place courts that cannot command each other in the position of having to coordinate and cooperate with each other. Extensive yet nonhierarchical interaction can be expected among domestic courts that belong to different countries but operate within the same supranational legal framework, and among transnational courts that belong to different transnational legal orders but operate within the same territory (e.g., the ECtHR and the European Court of Justice (ECJ)).29 Much of this interaction is uncontroversial insofar as courts are merely trying to teach and learn from each other. Highly developed transnational legal orders like the European Union and Council of Europe presuppose judicial mastery of substantive law across dozens of borders and languages, and the development of such mastery calls for copious inter-judicial communication. This pedagogy frequently occurs behind the scenes through formal and informal networks and channels of communication; some of it occurs publicly through the medium of judicial rulings. Extracurial comments can also play a part in this pedagogy. For example, national judges on the European transnational courts not infrequently address their domestic

See e.g. Mak & Law (2022), 251–52. See e.g. Alter & Helfer (2017), 103–10. 27 Lübbe-Wolff (2019). 28 See e.g. Mak & Law (2022), 253–54 (discussing the German ‘Solange’ doctrine and the 2013 Melloni case). 29 Ibid, 249–51. 25 26

292  Research handbook on the politics of constitutional law counterparts to explain and justify what the transnational courts do. In so doing, they function almost like diplomatic envoys. Representatives of the political branches act similarly with respect to matters within their purview. Other instances of horizontal interaction, however, more closely resemble political power struggles in which coordinate courts fight over turf out of self-interest. The clash between the ECJ and the ECtHR is a case in point.30 In these situations, courts can be expected to attempt something resembling dialogue as opposed to diktat, for the simple reason that diktat is not an option. Such dialogue partakes more of bargaining and negotiation than didacticism and pedagogy, and it is foreseeable if not inescapable whenever the legal and institutional environment requires competing courts to coexist and cooperate. (ii) Functional reasons. The most innocuous normative justification for TJD – and a justification that judges themselves tend to give31 – is functionalist in character and proceeds from a fairly straightforward and plausible empirical premise. In Justice Breyer´s pithy formulation: ‘Judges in different countries increasingly apply somewhat similar legal phrases to somewhat similar circumstances.’32 These fundamental and pervasive similarities mean that judges have much to learn from each other, much as skilled professionals and elites in other fields stand to learn from colleagues and peers elsewhere. To elaborate, all constitutional court judges perform roughly similar tasks, both in giving specific content to general protections of human rights and in attempting to develop systems of governance that work effectively to promote the welfare of their respective peoples. They have roughly similar training and today have roughly similar outlooks on their duties as constitutional interpreters. And, in general, they face roughly similar constraints on what they can do, both political (all know that they cannot get too far out of line with the positions taken by the political branches lest they face irrelevance or worse) and functional (all know that they are better at dealing with what Lon Fuller called bilateral conflicts than with polycentric ones).33 There clearly is something to this, but arguments familiar from the field of comparative law show how much work the word ‘roughly’ is doing here. Differences in the overall institutional settings within which courts operate can have profound consequences for the applicability of foreign experience and the suitability and viability of judicial transplantation. For example, courts in parliamentary systems face different constraints from those in presidential and semi-presidential systems; so do courts in systems with well-organised, stable, competitive multi-party systems as opposed to those in systems with chaotic party structures or single-party dominance. Historical traditions matter in shaping judicial understandings about what is acceptable and achievable: judges operating under the traditional French suspicion of gouvernement des juges, for instance, will experience more constraint than common law judges accustomed by tradition to thinking of themselves as lions under the throne. Most of the institutional, historical, and doctrinal features that constrain and empower judges are matters of degree, and the number of dimensions along which variation can occur means that dissimilarities might overwhelm the functional similarities to which Breyer points.

See e.g. ibid, 250–51, 256–58 (discussing the European Court of Justice’s rejection of EU accession to the European Convention on Human Rights). 31 See e.g. Breyer (2015), 249–80; L’Heureux–Dubé (1998). 32 Breyer (2003). 33 Fuller (1978), 371. 30

The politics of judicial dialogue  293 (iii) Normative reasons. The ongoing post-war utopian project embraces TJD as a mechanism for bringing about an enlightened legal order that transcends borders. This project is defined to no small degree by an impulse to articulate universalistic claims about human rights, and to encourage a brisk international traffic in such claims. Precisely because human rights inhere in humans as such, anyone deliberating about such rights – including courts – has as much warrant as everyone else and can provide insights and information about the content of fundamental human rights. As Jeremy Waldron among others has suggested, transnational judicial dialogues accumulate to produce a modern ius gentium, a new natural law that does not depend upon the endorsement through pre-existing statutory or constitutional law by any individual national government.34 In constructing the new natural law, courts have every reason to engage with each other. Conversely, though, universalism means that no court has more warrant than any other in articulating the content of fundamental rights. A domestic court can fairly say that its own rational deliberation about that content leads it to conclusions at odds with those drawn by other courts, which (on its view) have made a moral-deliberative error. Universalist invocations of foreign law are also open to the standard comparative-law argument that the concretisations of abstract human rights should be sensitive to local conditions. For example, the specific national histories of Germany and other nations that have produced genocides might reasonably lead their courts to disregard the conclusions about the permissibility of hate speech regulation drawn by courts in nations with no such histories (or lesser or more remote ones). The utopian project can at best pin its hopes on the prospect that constitutional courts will over time converge on ‘rules’ at a perhaps intermediate level of specificity/generality (for example, a suspicion of broad bans on hate speech, perhaps, coupled with an acknowledgement that narrow ones might be consistent with fundamental human rights). At present, however, such convergence is difficult to discern save perhaps on a few issues, such as hate speech regulation and the need for some system of effective remedies for violence against women. (iv) ‘Diplomatic’ reasons. As already suggested, the asymmetry of various forms of TJD – from institutional interconnections to citation practices – reflects and constitutes power relations. By every obvious measure, cross-fertilisation, mutual learning, and judicial dialogue of both the literal and figurative varieties manifest and reinforce well-established Global North/ South dynamics.35 Ambitious judges are aware of these power relations and their place in the world, and they seek to climb the ladder by keeping the right company and cultivating the right relationships. Relations with foreign courts and judges become a vehicle for the pursuit of power and influence both at home and abroad. The phenomenon of judicial diplomacy is unremarkable in the sense that courts and judges are simply behaving like other state actors. It is not obvious why judges would or even should be wholly indifferent or oblivious to the Waldron (2005), 132. From time to time, these dynamics can be reversed, and influence can run from periphery to core. Even in those rare cases when it is lower-prestige courts that innovate and higher-prestige courts that emulate, however, the effect can be to consolidate rather than disrupt the pecking order: the dominant courts may treat the innovations as akin to the contributions from talented students who show talent and promise but do not reach the height or threaten the position of their seniors. See e.g. supra text accompanying n 18 (distinguishing between the leadership role of formulating overarching frameworks and the supporting role of applying and fleshing out the framework in specific contexts). 34 35

294  Research handbook on the politics of constitutional law same kinds of goals and considerations that motivate other government actors and institutions in their interactions with foreign counterparts. This jockeying for position within established hierarchies occurs among not only courts and judges, but also other prestige-minded actors such as elite institutions of higher education – law schools and university departments and programmes – which compete to host gatherings of apex court judges. The educational institutions hope to gain status from hosting these events, and the judicial participants hope to gain status among their domestic peers by demonstrating their affiliation with prestigious foreign and international institutions that have high reputations at home. The reputational benefits of virtue by association – running with the right crowd – may be particularly great for judges in countries with weakly established judiciaries, and among peers who have attended these elite institutions themselves. These cosmopolitan judges may not be representative or typical, however, and there is consequently a risk that their public preening and intellectual climbing can backfire. The ‘stay at home’ judges who do not participate in such networking activity may bristle at anything that smacks of foreign idolatry or cosmopolitan elitism and disdain the efforts of colleagues to capitalise on their foreign connections. Within these transnational networks, prestige and credibility are commodities that courts and judges pursue and bestow in service of a variety of goals that go well beyond the adjudication of cases or the enhancement of judicial reasoning. The result is a distinctive species of judicial politics, which we might call ‘prestige-trafficking.’ Prestige-trafficking can occur horizontally among peers (for example, via the formation of exclusive clubs that reinforce the status of all involved) or vertically among courts of unequal status. Like other commodities, prestige can be either exported or imported. Exportation occurs when a high-prestige donor court or judge cites a lower-prestige court in order to bolster the domestic standing of the court being cited. This is a form of ‘judicial foreign aid’ flowing from a well-endowed nation to a less well-endowed one, wherein the recipient benefits from virtue by association. The cited court benefits from being treated like a peer institution by the citing court, but it benefits from this treatment precisely because it is not, in fact, a peer institution. The greater the prestige gap, the bigger the potential boost for the cited court – and the higher the risk too that the citing court will attract criticism for stooping below its station.36 Importation occurs when a lower-prestige or weaker court cites a high-prestige one. In this scenario, the citing court might hope that its domestic audience will view the domestic court as aligned or affiliated in some weak sense with another court, and that the resulting halo effect will strengthen the court domestically. Alternatively, or additionally, the citing judges might see themselves as something like envoys from a weaker nation seeking approval or validation from a stronger one. Potential benefits to the citing court include the prestige of appearing to belong to a prestigious club and the validation that comes from adopting a respected external benchmark and obtaining the implicit endorsement of the cited court. This kind of aspirational

36 Thus, for example, Justice Breyer explained his citation of a Zimbabwe Supreme Court decision as a way of trying to give that court ‘a leg up,’ and in the face of criticism for doing so, he later confessed to ‘tactical error’ in citing to the case law of a country that is ‘not the human rights capital of the world.’ Stephen Breyer & Antonin Scalia, Assoc. Justices, Supreme Court of the United States, A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication, Discussion at the American University Washington College of Law (13 January 2005), available at https://​perma​.cc/​KV2T​-3ATG.

The politics of judicial dialogue  295 behaviour by a lower-status court is mutually beneficial: the higher-status court benefits as well from the appearance of being influential and playing a leadership role. Courts almost invariably stand to benefit from being cited with approval, but the benefit for the cited court is likely to be greater when the citation goes against the pecking order and the citing court has greater prestige than the cited court. Prestige-trafficking can in some cases generate tangible connections and judicial networks of the type Slaughter identified37 and transform figurative dialogue into literal dialogue. An aspirational citation, for example, can lead to an invitation to participate in a conference of high court judges, and a ‘foreign aid’ citation can lead to an invitation to deliver a high-visibility lecture in the recipient nation. 1.4

Controversies Over Judicial Use of Foreign Law

Controversy over judicial comparativism is rare but not random. In most of the world, the practice of adverting to non-domestic law is either routine or uncontroversial on those few occasions when it occurs. Nevertheless, in the 1990s and early 2000s, a curious political controversy broke out in the United States over the use of references to non-US law in constitutional adjudication.38 Singaporean judges similarly insisted that their constitution had to be interpreted within the ‘four walls’ of domestic sources.39 Risk factors for controversy include both the type of case and the manner of usage. With respect to the type of case, consider a statute challenged as inconsistent with a fundamental human right inscribed in the domestic constitution. In these situations, the stakes are inherently high – a human rights claim on one side, legislation and principles of democratic self-government on the other – and the potential for controversy rises accordingly. Suppose further that there is no obligation or authority on the part of the domestic courts to look at jurisprudence from elsewhere. (In other words, this is not the case of a national court interpreting a binding regional or international human rights instrument over which courts elsewhere exercise interpretive authority; nor is it the unusual case of a national court explicitly empowered to take non-domestic law into account.40) Instead, advocates or judges choose entirely of their own accord to identify foreign laws or decisions that suggest that the domestic statute is consistent or inconsistent with an international consensus or an emerging trend. Here, the consideration of foreign law courts a greater risk of normative criticism because it is voluntary, in the sense of lacking any mandate in domestic law or perhaps even international law. In terms of manner of usage, foreign law can influence the process of deliberation, the process of justification, or both. First, consideration of the foreign decisions may shape the thinking of either or both sides and weigh in favour of a conclusion that the statute is consistent or inconsistent with a reasonable understanding of the domestic constitutional provision. Second, either or both sides may cite these foreign decisions to support their conclusion one way or the other. These two behaviours can and do occur independently of each other. It is

See e.g. Slaughter (2000); Slaughter (2004). See Law (2005), 699–701. 39 Lee (2007), 124–33. 40 The Constitution of South Africa § 39 (1) directs national courts to consider foreign law when and to the extent that it is relevant: ‘When interpreting the Bill of rights, a court, tribunal, or forum … must consider international law; and … may consider foreign law.’ 37 38

296  Research handbook on the politics of constitutional law possible for foreign law to influence the way judges think about a problem without leaving visible traces in their output, or alternatively to serve as ex post justification for conclusions that judges have reached on other grounds. Comparativism of the type that occurs only within the process of deliberation is inherently unlikely to attract controversy, for the simple reason that it is largely invisible. Courts may fail to acknowledge the influence of foreign law for a variety of reasons. A desire to avoid controversy or resistance is one possibility,41 but it is far from the only explanation. The reasons may be as banal or innocuous as a traditional aversion to the use of citations – foreign or otherwise – or an aesthetic objection to the mixing of roman and non-roman characters.42 Closet comparativism of this type is more common in the civil law world than in the common law world, in no small part because civil law courts are much less inclined on average than common law courts to cite case law of any kind – foreign or otherwise. This difference in citation practices means that judicial comparativism runs a higher risk of criticism in common law countries than in civil law countries. The greater citation transparency of common law countries could explain why controversy over the practice has in fact been confined to a small number of common law countries. Even if explicit judicial citation of foreign law is a necessary condition for controversy to occur, however, it is not a sufficient condition. The well-worn comparative law distinction between common law and civil law countries cannot by itself explain or predict when and why controversy erupts. Most of the common law world has no problem with judicial usage of foreign law, of either the deliberative or justificatory variety. Indeed, the common law tradition is in some ways inherently more conducive to the practice due to an understanding of the common law itself as inherently transnational in character, a heritage that is shared freely and reciprocally among the mother country and her progeny. In addition, a number of structural factors render controversy over judicial comparativism unlikely in common law and civil law countries alike. In much if not most of the world, a substantial dose of instruction in comparative law is de rigueur for all lawyers. Looking outside the nation’s boundaries for material that might be instructive in solving a problem is part of the ordinary lawyer’s toolkit. Moreover, even when critical attention does turn to the practice of judicial comparativism, the functionalist argument offers what would appear to be a universally applicable rejoinder: in seeking to solve a problem, why should judges close their minds from the outset to information that might help them think about the best available solution? That is a powerful argument on its face, but there are at least two ways in which prevailing notions about the proper (or exclusive) mode of constitutional interpretation might nevertheless preclude looking elsewhere. The Singaporean ‘four walls’ approach illustrates one possibility – namely, that conditions everywhere else are deemed so dissimilar as to render all foreign experience irrelevant and uninstructive.43 Judges in Singapore have expressed the view that circumstances there are so distinctive that nothing can be gained by looking elsewhere.44 The practical result is to legitimate an approach to civil and political rights that is relatively stingy by both Western and common law standards. This result is unsurprising in light of

See e.g. Law (2005), 738 (citing the example of Canadian Supreme Court Justice Ivan Rand’s deliberate failure to identify the American origins of certain free speech ideas and concepts). 42 See Law (2015), 947, 962, 976–77 (citing Taiwan and Korea as examples). 43 Lee (2007), 124–33. 44 Ibid. 41

The politics of judicial dialogue  297 the constitutional politics of Singapore, which are characterised by judicial deference to an entrenched semi-authoritarian government that has little reason to support judicial limits on its own authority.45 Another possibility, relevant mainly in the United States but on occasion elsewhere,46 centres around the concept of originalism, which in all its many forms directs primary, and sometimes even more forcefully exclusive, attention to the precise historical circumstances of the nation’s adoption of its constitution. Academic constitutional theory sometimes influences judicial practice, and in the United States, it has become a weapon in partisan contention over constitutional interpretation. For reasons peculiar to the United States,47 originalism took on a conservative colouration.48 Originalism directs attention backward and inward: in other words, it tends to lock in existing practice and lock out external influence. References to foreign law are by contrast seen as tilted toward liberals, especially when used to support arguments about a practice’s unconstitutionality. Comparativism’s ideological association with the left was reinforced by the fact that the growing conservatism of the US Supreme Court increasingly placed it at odds with its foreign counterparts, which were generally moving in a liberal direction (or at least were staying put as the US Supreme Court moved to the right). Controversy over references to non-US law peaked in the early 2000s, then basically disappeared as the composition of the court shifted and such references became confined to liberals’ dissents or disappeared altogether.49

2.

DOMESTIC OR INTER-BRANCH JUDICIAL DIALOGUE

Judges around the world have long understood that their words do not merely resolve disputes among litigants but also have an audience beyond the courtroom.50 Their rulings double as vehicles for instructing and informing the public about civic virtue and more.51 Constitutional court judges in particular may feel a unique sense of responsibility for advancing popular Tew (2014), 825. See e.g. ibid, 801 (discussing Malaysia and Singapore); Greene (2009), 40–61 (discussing Australia); Varol (2011) 475 (discussing Turkey). 47 TerBeek (2021); Teles (2008). 48 Despite its inevitable focus on the past, originalism need not be conservative. Some South African constitutionalists contend, for example, that adhering to the original understanding of that nation’s constitution would produce a transformative constitutional order. See Davis & Klare (2010). Brazil’s constitution, as originally adopted in 1988, was explicitly progressive and transformative, and so an originalist approach might be expected to yield progressive and transformative results. Moreira (2022), 351, 359–61. In the case of Turkey, originalism would entail a firm commitment to secularism that is anathema to conservative religious forces. Varol (2022), 474, 477, 488. 49 For a conspicuous counterexample, see e.g. Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2270 (2022) (citing the practices of other countries to help justify the elimination of the constitutional right to abortion prior to viability); ibid, 2312 (Roberts, C.J., concurring in the judgment) (same). 50 See e.g. Lerner (1967) (describing early efforts by US Supreme Court justices to discuss politically freighted official actions, mostly instructions given to local grand juries, in ways that publicized and conveyed their understanding of why the US Constitution deserved citizens’ respect). 51 The increasingly widespread practice of televising or live-streaming arguments in constitutional courts and the announcement of decisions is a modern manifestation of this judicial didacticism. Sombra (2016). 45 46

298  Research handbook on the politics of constitutional law understanding and acceptance of the nation’s legal foundations. In recent decades, many became enamoured of the possibility that such didacticism might give way to dialogue. The idea, and the hope, was that the public could legitimately talk back to the courts – not simply by repudiating their decisions via constitutional amendment or the selection of more congenial judges, but in a real dialogue that engages both the courts and the public (or at least their legislative representatives) in a deliberative conversation about the constitution’s meaning.52 Scholarly interest in the possibility of such dialogue was piqued when a handful of common law countries began to experiment in the 1980s and 1990s with nontraditional or ‘soft’ forms of judicial review that called upon courts to render rulings of unconstitutionality yet at the same time gave legislatures the formal power to override, modify, or avoid those rulings. It was argued that such arrangements could strike a balance between the problematic extremes of legislative and judicial supremacy and take the sting out of the charge that constitutional courts are inevitably ‘countermajoritarian’. The idea of constitutional dialogue fit comfortably within a late twentieth-century understanding that contemporary constitutionalism required and produced a ‘culture of justification.’53 Contemporary constitutionalism is simultaneously characterised by rampant rights talk and by equally widespread acceptance of the need for limitations on constitutional rights. The result is an endemic need for the justification of rights limitations. The dialogic conception of constitutional law offers, on its face, a normatively attractive model of how such justification might occur: namely, the process might encompass courts and legislatures alike, and it would not give the last word to any particular actor but instead invite a back-and-forth between good-faith actors with shared responsibility for upholding the constitution. In other words, this model envisions a discursive form of constitutional politics that is differentiated from, and preferable to, the usual politics surrounding judicial review. However, it is unclear whether such a distinctive and elevated species of politics can actually exist in practice. The difficulty of realising these normative ambitions becomes apparent when one attempts to define ‘dialogue’ in concrete terms and identify actual examples. On the one hand, if ‘dialogue’ is defined in a thin fashion as including any back-and-forth on constitutional questions between legislatures and courts, the concept becomes so broad as to be indistinguishable from ordinary politics and ordinary practice. For example, courts frequently enforce laws while at the same urging legislators to amend or repeal them, and legislators frequently heed such calls to action. Likewise, courts often strike down laws while suggesting ways in which the same objectives might be pursued within constitutional bounds, and legislators are often happy to take the hint. Whether through dicta, advisory opinions, decisions with delayed effect, or other mechanisms, judges have long found ways of communicating to legislators and inviting a response. Nor is there anything novel about legislators expressing their constitutional views to courts. It is a time-honoured view in American constitutional theory, known as departmentalism, that upholding the constitution entitles and even obligates each branch of government to interpret the constitution for itself and to explain its views. If all of this and more counts as ‘dialogue’, then the concept offers nothing new and nothing that transcends ordinary politics.

To avoid cluttering the text, we refer to the domestic dialogues dealt with in this section simply as dialogues. They should not be confused with the transnational dialogues discussed in Section 1. 53 Mureinik (1994), 32. 52

The politics of judicial dialogue  299 On the other hand, if ‘dialogue’ is defined in a thick fashion as substantive exchange on the merits of constitutional questions, it is unclear whether any country qualifies. There is widespread disagreement over what qualifies as dialogue and how prevalent it happens to be, but to the extent that any country makes the cut, it would appear to be Canada. As an instrument for facilitating inter-branch dialogue, section 33 of the Canadian Charter of Rights and Freedoms – known also as the notwithstanding clause – has drawn considerable scholarly attention,54 and some modest political attention, though it has not been much emulated in recent constitutions.55 At the same time, however, there is a running debate over whether even Canada qualifies as having genuine dialogue. If the definition is sufficiently thick – and it may not need to be especially thick – then even Canada flunks. 2.1

The Case of Canada

In 1997, Canadian scholars Peter Hogg and Allison Bushell argued that Canada’s constitutional arrangements had created the opportunity for dialogue between courts and legislatures, and – more important perhaps – that such dialogue had actually occurred.56 Hogg and Bushell pointed to two features of the 1982 Canadian Charter of Rights and Freedoms: its inclusion of a general limitations clause in section 1 stating that the rights the Charter contained were subject to parliamentary limitation when such limitations were ‘demonstrably justified in a free and democratic society’; and section 33, giving the national and provincial parliaments the power to ‘expressly declare’ that one or more of their acts ‘shall operate notwithstanding’ several of the Charter’s rights-guaranteeing provisions for a five-year period (the term being long enough to encompass an election between the time of the declaration and the time when it might be renewed). The political origins of these provisions deserve note. In negotiations over the Charter, the federal government favoured an entrenched bill of rights that would be binding upon the provincial and federal governments alike, whereas the provinces generally did not and feared that judicial enforcement of the Charter might unduly limit the scope of provincial legislation. The federal government initially sought to assuage the provinces with a limitations clause as opposed to a legislative override but was ultimately forced to accept some version of both.57 The general limitations clause was modelled upon a provision in the International Covenant on Economic, Social, and Cultural Rights (1966) (Article 4: ‘such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’) and is an example of the modification of off-the-shelf constitutional provisions to fit local circumstances.58 The notwithstanding clause was a ‘classic example of raw bargaining’ that found its way into the Charter at a very late stage at the insistence of the provinces as a condition of their approval.59 An early and influential account is Tushnet (1995). Most prominently, critics of the liberalising tendencies of the Supreme Court of Israel after its ‘constitutional revolution’ in 1995 have recurrently proposed to introduce legislative override clauses into the country’s Basic Laws. See Cohen & Shany (2023). For a comparative discussion of Canada and Israel, see Weinrib (2016). 56 Hogg & Bushell (1997); see also Hogg, Bushell Thornton & Wright (2007). 57 Hiebert (1996), 1–31. 58 Frankenburg (2010). 59 Romanow, Whyte & Leeson (1984), 211. 54 55

300  Research handbook on the politics of constitutional law Several provincial leaders were expressly concerned that the Charter would displace parliamentary supremacy with judicial supremacy. The federal government relented but secured the compromise that any legislative override of Charter rights would have to be reenacted after five years.60 Judicial opinions typically offer justifications for their outcomes. A dialogic understanding of the constitution created the opportunity for legislatures to collaborate with courts in doing so as well. So, for example, the Canadian general limitations clause invited parliaments to offer justifications for the limits it placed on constitutional rights and, again more important to Hogg and Bushell, to respond to a court decision striking down a limitation by reenacting it (or some close substitute) and augmenting the legislative record with a stronger ‘demonstration’ that the limitation is indeed justifiable in a free and democratic society. Dialogue could occur as well with the notwithstanding clause. Parliament would enact a statute; the court might hold it unconstitutional based on its interpretation of some constitutional provision; and parliament could respond by reenacting the statute with an express declaration that parliament interpreted the constitutional provision differently. On this understanding, dialogues would have at least three rounds: a legislative initiative, a judicial response, and a legislative reaction – perhaps followed by another round in the courts. The requirement that any legislative override must be renewed after five years potentially pulls the public into the dialogue as well by giving it a chance to respond at the ballot box. Domestic dialogues of these sorts actually occurred, according to Hogg and Bushell. When the court struck down regulations on advertising by dentists as overly broad, for example, Hogg and Bushell described a subsequent legislative enactment of narrower regulations, which the court upheld, as dialogic. They treated legislation modifying existing statutes to eliminate provisions the court held unconstitutional similarly. And, in an important example, they discussed legislative responses to judicial decisions holding that legislatures had unconstitutionally denied some protected groups benefits provided to others, and remedying these equality violations by ‘reading up’ the relevant statutes to extend the benefits to the excluded groups. Hogg and Bushell acknowledged that legislatures could respond to the ‘reading up’ remedy by denying the benefit to everyone, though they also observed that political pressures would typically lead legislatures to acquiesce in reading up. At least in principle, the financial costs of reading up a benefits programme could sometimes lead to repeal of the programme entirely, or, alternatively, extension of the benefit to all but also reduction of its size, also to all. For Hogg and Bushell, acquiescence was ‘a policy choice.’61 Hogg and Bushell included in their article’s title a sly parenthetical: ‘Perhaps the Charter of Rights Isn’t Such a Bad Thing After All.’ Why might some have thought it a bad thing? Because it was enacted against a background tradition of parliamentary supremacy and had been resisted by leaders of some Canadian provinces for the very reason that it appeared to replace parliamentary supremacy with judicial supremacy. For Hogg and Bushell, dialogues within the overall constitutional system would produce a hybrid of parliamentary and judicial supremacy. The Charter wasn’t such a bad thing because it did not empower the countermajoritarian courts to conclusively determine constitutional meaning; indeed, some might say, that dialogue took off the table the very claim that the courts were countermajoritarian.

Ibid; Leeson (2001), 297, 312. Hogg & Bushell (1997), 91.

60 61

The politics of judicial dialogue  301 Much of the initial literature on domestic inter-branch dialogue focused on a group of common law countries – including not only Canada, but also the United Kingdom and New Zealand – that sought to institutionalise (or stumbled into) mechanisms for reconciling the post-World War II popularity of judicial review and entrenched rights with their own long traditions of parliamentary sovereignty.62 These countries settled on some form of what Mark Tushnet calls ‘soft’ as opposed to ‘hard’ review, where softness and hardness refer to the degree of ease or difficulty with which legislatures may lawfully prevail over courts on constitutional questions.63 In a system with even softer review than Canada, for example, the courts might lack the power to set aside laws even provisionally. They might be limited merely to declaring that a law is unconstitutional, or giving a limiting construction to questionable laws, and the legislature would then decide in the first instance whether to do anything about it. Inertia thus favours the legislature, but this arrangement is still dialogic in the sense that both the legislature and the judiciary have the opportunity to weigh in. This is the situation in Gardbaum’s other examples of the United Kingdom and New Zealand.64 Conversely, in a system of ‘hard’ or ‘super-hard’ review, the legislature cannot override the courts and must amend the constitution in order to prevail, and even then, it might face a further response in the form of judicial invalidation of the constitutional amendment.65 This too can be characterised as dialogue. Indeed, it might even be considered an especially rich or sustained form of dialogue, in the sense that the possibility of judicial review of constitutional amendments adds yet another round of inter-branch back-and-forth over what the constitution permits. The problem that comes into view is, of course, that the concept of dialogue occupies a slippery slope and threatens to swallow everything. It is hard to imagine any system that lacks dialogue in the sense that courts and legislatures have no opportunity to respond to and disagree with each other. The thin definition does not demand or assume the adoption of ‘soft’ review.66 Instead, it is satisfied anywhere that the legislature and the judiciary act to any extent as checks and balances upon each other. In other words, it is satisfied by every country that has any kind of constitutional politics. That describes every constitutional democracy in the world, and quite a few non-democratic countries as well. Yet there is nothing inherent in the inherently loose metaphor of ‘dialogue’ to rule out such a definition as wrong.

62 Gardbaum (2013) (lumping together Canada, the United Kingdom, and New Zealand); Gardbaum (2001). 63 Tushnet (2003a), 2781–82. 64 Gardbaum (2013), 135–38, 159, 169–74. 65 Law & Hsieh (2022), 186–88 (distinguishing among ‘soft,’ ‘hard,’ and ‘super-hard’ varieties of review). 66 Almost none of the instances of dialogue identified by Hogg & Bushell (1997) involved any actual or threatened use of the legislative override power. On their account, most dialogues consist of the legislature modifying a judicially impugned law so as to address the court’s concerns in some way, which can occur just as easily in countries with traditional ‘hard’ review.

302  Research handbook on the politics of constitutional law 2.2

Do Dialogues Actually Occur?

Political scientists Christopher Manfredi and James Kelly challenged Hogg and Bushell’s claim that genuine inter-branch dialogue has actually occurred in Canada.67 They argued that Hogg and Bushell defined the category of dialogue too broadly ‒ for example, by ‘counting every legislative sequel [as] evidence of dialogue’, and by minimising judicial supremacy by saying that legislative tweaks to bring a statute into line with the court’s requirements were dialogic.68 Perhaps the most important challenge, though, arises from the fact that what Canadian scholars call ‘in your face’ responses to court decisions are rare – and have been given a pejorative name at that.69 An ‘in your face’ response is a direct challenge to what the court has held. One of the most prominent Canadian examples involves a Supreme Court decision holding unconstitutional a common law rule that prevented a criminal defendant charged with sexual assault from negating the usual intent requirement by showing that he was drunk when the assault occurred.70 Parliament responded with an ‘in your face’ statute enacting into law almost every component of the common law rule. After the Supreme Court invalidated the new legislation, Parliament responded with a half-way measure, allowing liability where the defendant was negligent in becoming intoxicated.71 Yet even that particular episode might not count as a constitutional dialogue between legislature and court because the court’s initial decision rested on an analysis of the common law’s constitutionality and did not deal with a statute that had some democratic warrant supporting it. 2.3

What Counts as a Dialogue?

Some of the disagreement about the extent of dialogic constitutionalism arises from disagreement about what counts as a dialogue. How should dialogue be defined, and what scenarios satisfy that definition? A thin definition answers such questions by treating all interaction between courts and legislatures as dialogic, but at the cost of rendering the concept meaningless. Once one attempts to give the concept any teeth, many questions about what counts as dialogue prove to have no straightforward answer. For example, what if the court and the legislature do not even appear to be addressing the same question or do not even purport to disagree over the meaning of the constitution? If the legislature accepts or expresses no view on the court’s interpretation of the constitutional rights at issue and simply wishes to override those rights, does that count as dialogue? This is far from an obscure hypothetical. Section 33 itself does nothing to guarantee that a legislative override is the product of disagreement over constitutional meaning. It grants the legislature the power to enact laws ‘notwithstanding a [specified] provision’ of the Charter, which is different from saying, ‘notwithstanding a court’s interpretation’ of that provision. The legislature may use this power not only if it disagrees with judicial interpretation of the Charter, but also if it simply does not wish to be bound by the Charter – which is precisely

69 70 71 67 68

Manfredi & Kelly (1999). Ibid, 519. Roach (2006). R. v. Daviault, [1994] 3 S.C.R. 63. R. v. Brown, 2022 SCC 18; Bill C-28, enacted 23 June 2022.

The politics of judicial dialogue  303 what happened when the Quebec government enacted a blanket override applicable to all laws.72 In what sense, if any, can this be called dialogue? Consider for example the question of whether legislative acquiescence to a judicial decision should be counted as dialogic. The answer unfortunately is: ‘sometimes yes, sometimes no.’ Consider a minor provision in a larger law held unconstitutional. The provision might have slipped in almost unnoticed and, even if noticed, enacted without any legislative consideration whatever of its constitutionality. Any constitutional violation in this scenario is inadvertent and reflects what Dixon calls ‘legislative blind spots.’73 Legislative acceptance of the court’s decision could reflect a considered judgement that the court correctly identified a problem that the legislature overlooked – an example of dialogue. Acquiescence, though, might reflect surrender to superior force or the impossibility of mustering a political majority to respond more aggressively or even override the court’s decision – an example of judicial monologue. Scholars could use their political judgement to classify legislative failure to respond as dialogic or monologic, but judgement calls of this kind are not very compatible with serious quantitative scholarship. Hogg and Bushell’s example of ‘reading up’ statutes that violate equality principles offers another occasion for wondering how to interpret legislative inaction.74 They say that reading up is a policy choice but acknowledge that there are often strong political pressures to acquiesce in a judicial decision levelling up unconstitutional inequality. It would not be unfair to describe such acquiescence as a legislative surrender to superior force. Another question is posed by prospective overrides. Here the legislature anticipates a judicial decision invalidating a legislative proposal and insulates it from that result by including an override provision. Only one party, the legislature, speaks and yet the other party, the judiciary, appears to have some role in shaping the statutory and constitutional outcome. Should prospective overrides be counted as dialogic? The question is complicated by the fact that the legislature might be wrong in its prediction of what the courts might do. In several Canadian cases, a provincial legislature enacted a statute, a lower court held it unconstitutional, and while the case was on appeal, the legislature added a quasi-prospective override provision – and in the end the appellate court reversed the lower court on the merits.75 Dialogic or not? Perhaps the answer turns on whether the appellate court’s decision on the merits appears to be strongly defensible (or the lower court’s decision appears highly questionable).76 If so, there is no dialogue but simply the application of the governing law on the merits, but if not – that is, if one might fairly think that the appellate court’s decision was influenced by the override provision – perhaps a dialogue. Responding to the concerns about judicial supremacy that the theory of dialogue seeks to diffuse, some scholars have been tempted to treat as dialogic constitutional amendments and nominations of judges who, the appointing authorities believe, disagree with specific constitutional decisions.77 It is clear that constitutional amendments can be dialogic at least in the

74 75 76 77 72 73

Ford v. Quebec, [1988] 2 S.C.R. 712. Dixon (2017), 2208-09. See supra n 61. See e.g. City of Toronto v. Attorney General of Ontario, 2021 SCC 34. As was the lower court decision in the City of Toronto case cited above in n 75. See Friedman (2009); Perreti (1999).

304  Research handbook on the politics of constitutional law sense of reflecting substantive disagreement over constitutional meaning. For example, the US Supreme Court at one point believed that the US Constitution properly interpreted allowed one state’s citizens to sue another state in the national courts; 78 the Constitution was amended to provide that ‘the Judicial power of the United States shall not be construed to extend to’ such suits. 79 This is a textually explicit repudiation of the Court’s prior interpretation. Likewise, the first amendment to the Indian Constitution rejected the Indian Supreme Court’s interpretation of free speech in the context of laws barring seditious advocacy.80 To treat constitutional amendments as dialogic, however, might stretch the metaphor past its breaking point. A constitutional amendment that overrides a court decision is in some sense part of a dialogue with the court, but the conversation ends with the assertion of superior force rather than with deliberative agreement. For this to qualify as dialogue, one must fall back on a very thin definition of dialogue – thin enough to encompass efforts to silence one’s interlocutor. The result is a slippery slope: it becomes difficult to see which countries, if any, might be said to lack inter-branch dialogue, or what, if anything, distinguishes ‘dialogic’ constitutional politics from an ordinary battle of wills conducted with ordinary regard for legal niceties. 2.4

The Effects of Dialogue on Courts

The effects of interbranch dialogue on judicial behaviour are unclear and open to conflicting predictions. One hypothesis is that courts will be emboldened to act aggressively in a world of constitutional dialogues. They can offer what they believe to be the best interpretations of the constitution without having to worry about the possibility of legislative retaliation or about loss of popular legitimacy because the next step in the dialogue provides the opportunity for reasoned disagreement rather than retaliation, and for reinvigorating parliamentary and constitutional supremacy (and so, indirectly, the court’s legitimacy as well). It is equally plausible, however, that dialogue could induce precisely the opposite behaviour. Some judges might reasonably believe that legislative overrides are a form of undesirable criticism and might shape their opinions in ways that will reduce the possibility of overrides. On this view, judges and legislators alike attempt to anticipate what the other side will do and act strategically to avoid potential defeat. Just as legislators enact prospective overrides to forestall rejection by the courts, judges temper their positions to forestall rejection by the legislature. It is probably impossible to determine empirically when the ‘emboldening’ or ‘tempering’ hypotheses of dialogue’s effects on judges are accurate, or whether one or the other is more accurate more of the time. Both hypotheses posit strategic motivations for decisions that are presented as honest representations of the judges’ best efforts to interpret the constitution honestly. Disentangling strategic and sincere behaviour is notoriously difficult, though sometimes one can find relevant evidence in intracurial communications if they are available. 2.5

The Effects of Dialogue on Legislatures

The prospect of judicial review can alter the language of justification employed by lawmakers. Such judicialisation of discourse – wherein legislators speak in the terms articulated and Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). US Constitution, Amend. 11 (1795). 80 Constitution of India, Amend. 1 (1951). 78 79

The politics of judicial dialogue  305 emphasized by courts – might be considered evidence of dialogue. Thus, for example, Hogg and Bushell point to the fact that legislators engage in ‘Charter-Speak,’81 meaning that they advert to Charter provisions in the course of defending or attacking legislative proposals. Similarly, political scientists have shown that ministries charged with vetting legislative proposals cast their analyses in court-influenced terms.82 They cast their advice in terms of ‘litigation risk,’ from ‘none’ to ‘likely to be held unconstitutional.’ Treating ‘constitution-speak’ as evidence of dialogue is problematic, though. The invocation of constitutional arguments by legislators may be a façade cloaking pure policy positions: those who think a proposal wise will argue that it is constitutionally permissible, while those who think it unwise will argue that it would be unconstitutional if enacted.83 ‘Constitution-speak’ may amount in reality to the expression of ‘mere’ political disagreement with judicial interpretations in constitutionally sanctioned form, as opposed to deliberate consideration of whether those interpretations are good ones. There is also a problem of expertise: many legislators will be unfamiliar with how courts use doctrinal language and will mouth judicial tests without understanding them. As Manfredi and Kelly put it, such legislators are more like ventriloquists’ dummies than active participants in a conversation.84 Yet another problem is that ‘constitution-speak’ is often precisely not dialogic but rather an act of preemptive compliance. In real dialogues, the possibility of disagreement is always in the air. 2.6

The Political Viability and Sustainability of Dialogue

An often overlooked but critical question about the constitutional politics of judicial-legislative dialogues is whether they are politically sustainable over the medium to long run in the face of both contemporary human-rights culture and the realities of democratic politics. Sustained inter-branch dialogue is not necessarily a stable equilibrium. There are reasons to suspect that it may be prone to tipping into either de facto legislative supremacy, on the one hand, or de facto judicial supremacy, on the other. The challenge from legislative supremacy focuses on an argument made initially by Robert Dahl in 1957 with respect to the US Supreme Court and repeated regularly by scholars with respect to other constitutional courts.85 According to Dahl, the US Supreme Court has never found itself in disagreement with a governing coalition for a sustained period and is unlikely ever to do so. Many qualifications are built into that formulation, the most important of which is that there must be a governing coalition in place for a sustained period. Taking that and other qualifications into account, though, political scientists have mostly found support for Dahl’s argument.86 Whether it is because governing coalitions are invariably able in the long run to reshape the courts, or because judges choose of their own accord to bend before they break, Hogg & Bushell (1997), 101. Hiebert & Kelly (2015); Tushnet (2003b). 83 Schauer’s comment is cited in Tushnet (2003b), 461 n. 53. 84 Manfredi & Kelly (1999), 521. 85 Dahl (1957). 86 Indeed, subsequent work has suggested that the Supreme Court may if anything be more responsive to public opinion than Dahl depicts. See Harvey (2013) (finding as an empirical and historical matter that the Court is unlikely to act aggressively when doing so would place it at odds with congressional preferences, defined as majority control of the House of Representatives). 81 82

306  Research handbook on the politics of constitutional law the implication is that dialogues always terminate with the legislature prevailing. The talk that occurs in between plays no real role in shaping the constitutional order. The challenge from judicial supremacy is captured most clearly in the claim that the Canadian notwithstanding clause has been politically discredited and now lies dormant as a result.87 It was used early on by the Quebec legislature to insulate essentially all of that province’s constitutionally problematic legislation from potential invalidation.88 That move located section 33 within the then-highly contentious politics of Quebec independence and gave it a somewhat shady cast.89 Not only is section 33 rarely invoked, but its use has also been prone to miscalculation, as in the form of prospective overrides predicated upon erroneous predictions about what the courts would do with legislation already subject to challenge. In 2006, the Liberal candidate for prime minister, trailing in the polls, sought to improve his prospects by pledging to remove the blemish of section 33 from the Canadian constitution.90 The response was that this was an act of desperation (he and his party lost the election anyway) and that section 33, though not all that important, should be preserved as a potential safety valve for future use. This was not a robust defense of the override power. Seen in comparative perspective, the Canadian Supreme Court is today one of the world’s most powerful constitutional courts, which suggests that the court is more monologic than dialogic. The notion of dialogue, then, might be attractive to academics but not to judges, who prefer judicial supremacy, nor to legislators, who prefer legislative supremacy coupled with the ability to foist difficult political problems onto the courts.91 Dialogue theory, that is, might have little enduring political support from anywhere within the overall system of government. The notwithstanding clause’s origins as a solution to a pressing political problem at the Charter’s origin raises the possibility that it – and perhaps the existence of domestic constitutional dialogues generally – arises from contingent and perhaps transient political conditions, the contours of which deserve further attention.

3.

THE FUTURE OF SCHOLARSHIP ON JUDICIAL DIALOGUE

The time is ripe, Ryan Black and Lee Epstein have observed, for a research agenda ‘devoted to understanding the exchange of law among nations.’92 This agenda would include tracing ‘the origins of borrowing,’ describing ‘contemporary practices and patterns,’ and identifying when judges are willing or reluctant ‘to import from other societies.’93 Much of the agenda Black and Epstein describe calls for scholars to broaden and deepen their collection of information beyond what is now available. Existing research sketches some lines of inquiry about the political contours of transnational judicial dialogues – specifically, their role in creating and reproducing power hierarchies seen in other areas of international relations. Following up in

See e.g. Law (2013), 248–49 (describing section 33 as a ‘zombie provision’). Ford v. Quebec, [1988] 2 S.C.R. 712. 89 More recent invocations of the notwithstanding clause have likewise occurred at the provincial level and done little to restore its legitimacy. Economist (2022); Yakabuski (2023). 90 Yakabuski (2023). 91 Graber (1993). 92 Black & Epstein (2007), 792. 93 Ibid, 804. 87 88

The politics of judicial dialogue  307 a sustained way on this initial research, and expanding the focus to include courts in the Global South, would enable us to develop more nuanced and balanced accounts of the practice. The research agenda on domestic constitutional dialogues is similarly promising but in need of firmer empirical as well as conceptual moorings. First, we must reach agreement, or at least make explicit our disagreements, about what counts as domestic dialogue. With an explicit and well-defined concept of dialogue in hand, we can extend the range of nations in which domestic dialogue is examined, with the caution in mind against extending the metaphor too broadly. The ultimate positive goal for the study of domestic constitutional dialogues would then be to determine their political origins and effects. Prominent among the latter would be to ascertain whether and under what conditions inter-branch dialogue has ‘emboldening’ or ‘tempering’ effects on judicial review, and to determine the effect, if any, of dialogic arrangements upon the political vulnerability and responsiveness of constitutional courts to the age-old charge of countermajoritarianism.

REFERENCES Alter, Karen J. & Laurence R. Helfer. Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice (Oxford University Press, 2017). Black, Ryan & Lee Epstein. (2007). ‘(Re)-Setting the Scholarly Agenda on Transnational Judicial Communication,’ Law & Social Inquiry 32: 791–807. Breyer, Stephen. ‘The Supreme Court and the New International Law,’ Address to the 97th Annual Meeting of the American Society of International Law (14 April 2003), https://​perma​.cc/​55T9​-SRRU. Breyer, Stephen & Antonin Scalia. ‘A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication,’ Discussion at the American University Washington College of Law (13 January 2005), https://​perma​.cc/​KV2T​-3ATG. Breyer, Stephen G. The Court and the World: American Law and New Global Realities (Alfred A. Knopf, 2015). Chang, Wen-Chen & David S. Law. (2011). ‘The Limits of Global Judicial Dialogue,’ Washington Law Review 86: 523–78. Cohen, Amichai & Yuval Shany. ‘Reversing the “Constitutional Revolution”: The Israeli Government’s Plan to Undermine the Supreme Court’s Judicial Review of Legislation,’ Lawfare (15 February 2023), https://​perma​.cc/​W4N7​-2QPT. Dahl, Robert A. (1957). ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,’ Journal of Public Law 6: 279–95. Davis, Dennis. (2015). ‘Legitimacy: The Social Turn and Constitutional Review: What political liberalism suggests: A Reply to Frank I. Michelman,’ Kritik 98: 224–28. Davis, Dennis & Karl Klare. (2010). ‘Transformative Constitutionalism and the Common and Customary Law,’ South African Journal on Human Rights 26: 403–509. Dixon, Rosalind. (2017). ‘The Core Case for Weak-Form Judicial Review,’ Cardozo Law Review 38: 2193–232 Economist. (2022). ‘A bomb lodged in the constitution’ (10 December), pp. 29–30. Frankenburg, Günter. (2010). ‘Constitutional Transfer: The IKEA Theory Revisited,’ International Journal of Constitutional Law 8: 563–79. Friedman, Barry. The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar Straus & Giroux, 2009). Fuller, Lon L. (1978). ‘The Forms and Limits of Adjudication,’ Harvard Law Review 92: 353–409. Gardbaum, Stephen. (2001). ‘The New Commonwealth Model of Constitutionalism,’ The American Journal of Comparative Law 49: 707–60. Gardbaum, Stephen. The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press, 2013).

308  Research handbook on the politics of constitutional law Gelter, Martin & Mathias Siems. (2012). ‘Networks, Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations Between Ten of Europe’s Highest Courts,’ Utrecht Law Review 8: 88–99. Graber, Mark. (1993). ‘The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary,’ Studies in American Political Development 7: 35–73. Greene, Jamal. (2009). ‘On the Origins of Originalism,’ Texas Law Review 88: 1–89. Groppi, Tania & Marie-Claire Ponthoreau (eds). The Use of Foreign Precedents by Constitutional Judges (Hart Publishing, 2013). Harvey, Anna. A Mere Machine: The Supreme Court, Congress, and American Democracy (Yale University Press, 2013). Hiebert, Janet. Limiting Rights: The Dilemma of Judicial Review (McGill-Queen’s University Press, 1996). Hiebert, Janet & James B. Kelly. Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom (Cambridge University Press, 2015). Hirschl, Ran. Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press, 2014). Hogg, Peter W. & Allison A. Bushell. (1997). ‘The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter Of Rights Isn’t Such A Bad Thing After All),’ Osgoode Hall Law Journal 35: 75–124. Hogg, Peter W., Allison A. Bushell Thornton & Wade K. Wright. (2007). ‘A Reply on “Charter Dialogue Revisited,”’ Osgoode Hall Law Journal 45: 193–202. Klare, Karl. (1998). ‘Legal Culture and Transformative Constitutionalism,’ South African Journal on Human Rights 14: 146–88. Law, David S. (2005) ‘Generic Constitutional Law,’ Minnesota Law Review 89: 652–742. Law, David S. ‘The Myth of the Imposed Constitution,’ in Denis J. Galligan & Mila Versteeg (eds.), Social and Political Foundations of Constitutions (Cambridge University Press, 2013), pp. 239–68. Law, David S. (2015). ‘Judicial Comparativism and Judicial Diplomacy,’ University of Pennsylvania Law Review 163: 927–1036. Law, David S. & Hsiang-Yang Hsieh. ‘Judicial Review of Constitutional Amendments: Taiwan,’ in David S. Law (ed.), Constitutionalism in Context (Cambridge University Press, 2022), pp. 185–215. Kavanagh, Aileen. (2016) ‘The Lure and the Limits of Dialogue.’ University of Toronto Law Journal 66: 83–120. Leeson, Howard. ‘Section 33, The Notwithstanding Clause: A Paper Tiger?,’ in Paul Howe & Peter H. Russell (eds.), Judicial Power and Canadian Democracy (McGill-Queen’s University Press, 2001). L’Heureux–Dubé, Claire. (1998). ‘The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court,’ Tulsa Law Review 34: 15–40. Lübbe-Wolff, Gertrude. ‘Transnational Judicial Interactions and the Diplomatization of Judicial Decision-Making,’ in Christine Landfried (ed), Judicial Power: How Constitutional Courts Affect Political Transformations (Cambridge University Press 2019), pp. 233–49. Luebbe-Wolff, Gertrude. (2011). ‘Who Has the Last Word? National and Transnational Courts–Conflict and Cooperation,’ Yearbook of European Law 30 (1): 86–99. Lerner, Ralph. (1967). ‘The Supreme Court as Republican Schoolmaster,’ Supreme Court Review 1967: 127–80. Mak, Elaine & David S. Law. ‘Transnational Judicial Communication: The European Union,’ in David S. Law (ed), Constitutionalism in Context (Cambridge University Press, 2022), pp. 236–60. Manfredi, Christopher P. & James B. Kelly. (1999). ‘Six Degrees of Dialogue: A Response to Hogg and Bushell,’ Osgoode Hall Law Journal 37: 513–27. Moreira, Adilson J. ‘Affirmative Action: Brazil,’ in David S. Law (ed.) Constitutionalism in Context (Cambridge University Press, 2022). Moyn, Samuel. The Last Utopia: Human Rights in History (Harvard University Press, 2010). Mureinik, Etienne. (1994). ‘A Bridge to Where? Introducing the Interim Bill of Rights,’ South African Journal of Human Rights 10: 31–48. Peretti, Terri. In Defense of a Political Court (Princeton University Press, 1999). Petersen, Niels. ‘Equality and International Law,’ in Neha Jain & Mila Versteeg (eds.), Oxford Handbook of Comparative Human Rights Law (Oxford University Press, forthcoming).

The politics of judicial dialogue  309 Ray, Brian. Engaging With Social Rights: Procedure, Participation, and Democracy in South Africa’s Second Wave (Cambridge University Press, 2016). Riles, Annelise. The Network Inside Out (University of Michigan Press, 2000). Roach, Kent. (2006). ‘Dialogue or Defiance: Legislative Reversals of Supreme Court Decisions in Canada and the United States,’ International Journal of Constitutional Law 4: 347–70. Romanow, Roy, John Whyte & Howard Leeson. Canada ... Notwithstanding: The Making of the Constitution, 1976‒1982 (Carswell & Methuen, 1984). Rossi, Julieta & Daniel M. Brinks. ‘Social and Economic Rights: Argentina,’ in David S. Law (ed.), Constitutionalism in Context (Cambridge University Press, 2022), pp. 263–80. Slaughter, Anne-Marie. (2000). ‘Judicial Globalization,’ Virginia Journal of International Law 40: 1103–24. Slaughter, Anne-Marie. A New World Order (Princeton University Press, 2004). Slaughter, Anne Marie. (2004). ‘Courting the World,’ Foreign Policy 141: 78–79. Sombra, Thiago Luis. (2016). ‘Why Should Public Hearings in the Brazilian Supreme Court Be Understood as an Innovative Democratic Tool in Constitutional Adjudication?,’ German Law Journal 17: 675–90. Tate, C. Neal & Torbjorn Vallinder (eds.). The Global Expansion of Judicial Power (New York University Press, 1995). Teles, Stephen. The Rise of the Conservative Legal Movement: The Battle for the Control of the Law (Princeton University Press, 2008). TerBeek, Calvin. (2021). ‘Clocks Must Always Be Turned Back: Brown v. Board of Education and the Racial Origins of Constitutional Originalism,’ American Political Science Review 115: 821–34. Tew, Yvonne. (2014). ‘Originalism at Home and Abroad,’ Columbia Journal of Transnational Law 52: 780–850. Tew, Yvonne. Constitutional Statecraft in Asian Courts (Oxford University Press, 2020). Tushnet, Mark V. (2003) ‘Alternative Forms of Judicial Review,’ Michigan Law Review 101: 2781–802. Tushnet, Mark. (2003). ‘Non-Judicial Review,’ Harvard Journal on Legislation 40: 453–92. Tushnet, Mark. (1995). ‘Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty,’ Michigan Law Review 94: 245–301. van Parijs, Philippe. Linguistic Justice for Europe and the World (Oxford University Press, 2011). Varol, Ozan O. (2011). ‘The Origins and Limits of Originalism: A Comparative Study,’ Vanderbilt Journal of Transnational Law 44: 1239–97. Varol, Ozan O. ‘Military Influence on the Constitutional Order: Turkey,’ in David S. Law (ed.), Constitutionalism in Context (Cambridge University Press, 2022), pp. 475–96. De Visser, Maartje. ‘Nonjudicial Constitutional Interpretation: The Netherlands,’ in David S. Law (ed.), Constitutionalism in Context (Cambridge University Press, 2022), pp. 216–35. Waldron, Jeremy. (2005). ‘Foreign Law and the Modern Ius Gentium,’ Harvard Law Review 119: 129–47. Weinrib, Lorraine E. (2016). ‘The Canadian Charter’s Override Clause: Lessons for Israel,’ Israel Law Review 49: 67–102. Yakabushi, Konrad. (2023). ‘The notwithstanding clause is set to be another fissure between English and French Canada,’ Globe and Mail 16 February: A11. Yap, Po Jen. Constitutional Dialogue in Common Law Asia (Oxford University Press, 2015).

18. Republicanism redefined: the constitutional status of political parties after the ratification of the twelfth amendment Franita Tolson

The US congressional elections of 1789 were the country’s first test of its commitment to nonpartisan elections, designed to elicit the selection of individuals who, according to The Federalist 53, ‘have an immediate dependence and intimate sympathy with the people.’1 One of these elections pitted two future presidents – James Monroe and James Madison – against each other as they sought to represent Virginia’s Fifth Congressional District. While historians dispute whether the overwhelmingly anti-Federalist district was gerrymandered at the behest of Patrick Henry to disadvantage Madison,2 Madison emerged as the winner in a close race. In 1789, Madison would not have described his accusations that that the district was gerrymandered to disadvantage him as being situated in ‘partisan’ intent rather than just opposition by those who were against the newly enacted Constitution.3 By the summer of 1792, however, he would have surely described as partisan the political situation in the new government, with fissures in the governing Federalist coalition leading to the creation of nascent, ill-defined political organisations that would influence elections and constitutional politics over the course of the next decade.4 Political parties emerged because few, if any, delegates achieved the bulk of their preferred outcomes during the Constitutional Convention, necessitating a framework to facilitate popular sentiment regarding issues left unresolved or indeed, created by, the new constitution. As historian Jeff Broadwater has observed, ‘Madison went to the Philadelphia Convention in May 1787 committed to a congressional veto over state laws and a broad delegation of powers to the new government, but he got neither.’5 Instead, the Constitution expanded federal power in other ways, particularly in providing for congressional oversight of federal elections, rather than delegating complete control to the states. While there may be no congressional veto over state laws, for example, there is a congressional veto over state election laws that govern federal elections. The Elections Clause gives Congress the power to ‘make or alter’ state regulations that govern the election of representatives and senators, power that Alexander Hamilton referred to in The Federalist 59 as an affirmation of the ‘plain proposition’ that ‘EVERY GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION.’6 States retain significant authority over voter qualification standards, but The Federalist No. 53 (Madison). Griffith (2007). 3 Cunningham (1957), 7. 4 Ibid, 23. 5 Broadwater (2012), 97. 6 The emphasis is Hamilton’s, not mine. The Elections Clause, in its entirety, provides: ‘The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed 1

2

310

Republicanism redefined  311 the ‘distinctive characters of the republican form’ that Madison described in The Federalist 39 required a government built around majority rule rather than ‘a favored class of society.’ For all that Madison thought that he lost after leaving Philadelphia in September 1787 – a national government that was far more powerful than its state level counterparts – he gained a government with a structure that would be both federalist and nationalist, empowering the federal government to oversee state and federal elections to an extent that Madison had not originally anticipated. The country’s first half century was initially defined by versions of federalism and republicanism that centred the states as the primary organisational force in the US federal political system. Yet the rise of partisanship in the 1790s as well as the emergence of the first (1792–1824) and second (1828–1854) party systems tested the boundaries of the new government, forcing Congress to probe the limits of its authority. Madison would become one of the chief opponents of broad federal authority, politics colouring and, eventually, altering a world view that had once been pro-nationalist. By the election of 1800, the first party system was well on its way to becoming part of the fabric of the system of government, after a decade in which policy disagreements, population growth, and grassroots activism led to the creation of two relatively defined political organisations – Federalists and Democratic Republicans – both seeking to win elections to stem the worst impulses that each camp tended to ascribe to the other.7 Federalism and republicanism were no longer pure structural principles to organise the state/federal relationship. The politics of the day meant that these terms would also become gloss for partisan positions. The infusion of intense partisanship into the US system meant that many of the provisions of the Constitution of 1789 had an entirely different import and meaning by 1800. For example, Article II, Section 1 provides that, ‘Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.’ The electors then, ‘meet in their respective states and vote by ballot for two persons,’ to be President and Vice President. The Federalist 64 predicted that the Electoral College, along with the selection of senators by state legislatures would result in the selection of ‘men best qualified for the purpose, and in the manner most conducive to the public good’ by avoiding ‘the activity of party zeal, taking advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested [that] often places men in offices by the votes of a small proportion of the electors.’8 What the original document could not have predicted was that political parties would facilitate and breed partisanship that increased the salience of federal and state elections. The importance of state elections, in particular, for the composition of the national government shifted the focus from electing men best equipped for the job to men who had the best political organisations behind them. Case in point: the intense partisan wrangling that occurred in elections for the New York General Assembly in May 1800, months before the November presidential election. Future Vice President Aaron Burr recruited candidates for the General Assembly, tying them to a popular six term governor of the state, and campaigned relentlessly, in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.’ US Const. art. I, § 4, cl. 1. 7 Broadwater (2012), 85–86. 8 The Federalist No. 64 (John Jay).

312  Research handbook on the politics of constitutional law resulting in a sweeping Republican victory for all 13 of New York’s General Assembly seats.9 The Republican dominance in the spring elections ensured that Thomas Jefferson would receive all of New York’s electoral votes for president that fall. Inevitably, this partisanship infected the Constitution’s structure of federalism, creating a cooperation and cohesiveness across branches because of the policy coherence demanded by the party label.10 Thus, the chaos of the 1800 election, in which Congress resolved the stalemate over whether Aaron Burr or Thomas Jefferson would be president, ultimately led to the Twelfth Amendment, which not only changed the process for selecting president but also altered the understanding of what constitutes a republican form of government in light of this new partisan environment. In 1787, it was unclear whether the majoritarianism that Madison and others advocated as central to republicanism and embraced by the Guarantee Clause had to reflect the will of a majority of the people of the state. The Twelfth Amendment clarified that republicanism only had to reflect the will of a majority of the voters by sanctioning a system in which the legitimacy of the presidency was tied to a decisive electoral college win.11 With the Twelfth Amendment, ‘We the Voters’ became more important than ‘We the People’ in the theory of republicanism that, through the Guarantee Clause, undergirded the US system of government. The post-Twelfth Amendment acknowledgment of the centrality of the voting population to the accomplishment of partisan end goals – i.e., winning elections and enacting policy under a mandate of popular sovereignty – raised important questions about the constitutional status of political parties. Not only were parties responsible for conveying the preferences of the electorate, the Twelfth Amendment created a structure designed to facilitate the ability of the major party with the most support to choose the president. As this chapter will show, the Twelfth Amendment clarified the meaning of republicanism embraced in 1787, centring on a type of voter focused majority rule that was facilitated through the two major parties and that conflated majoritarianism with major party preferences. The normative implications of this insight – simply put, that the Twelfth Amendment changed the Constitution from an anti-party to a party document – has significant implications for the US Supreme Court’s caselaw. If parties are the best translation of the majoritarianism that undergirds the US system of republican government, then it makes no sense to ever treat these entities as private associations that have constitutional rights like individuals. Current Supreme Court doctrine adopts exactly this position, ignoring the significant power that political parties have within that system to manipulate the institutional structures and legislative outputs of American democracy. The Court has held that political parties have First Amendment rights that are especially robust in the context of choosing their standard bearer. As this chapter will show, however, the centrality of political parties to facilitating republican principles, a notion that the Twelfth Amendment embraces, means that political parties have been constitutional actors equivalent to the state since at least 1803. This interpretation provides stronger support for the White Primary Cases, which struggled to create a framework that would prevent political parties from excluding otherwise qualified individuals from their primaries on the basis of race, and refutes the approach taken in modern cases like Democratic

Sharp (1993), 233–24. cf. Levinson & Richard H. Pildes (2006). 11 Foley (2020) (arguing that the framers of the Twelfth Amendment anticipated that the President would emerge as the winner of a compound majority of majorities in the states key to his electoral college victory). 9



10

Republicanism redefined  313 Party v. Jones, which endorses a view of parties as private actors with First Amendment rights who can exclude outsiders from choosing party candidates. Beyond correcting missteps in US Supreme Court caselaw, examination of the relation between political parties and constitutional developments in the early years of the US republic also brings out some general features of the constitutional politics of political parties. It shows, for example, how the substance of constitutional law sometimes induces the creation of political parties around the opportunities presented by (and omitted from) constitutional language, and how constitutional structures similarly induce the forms party systems take. The analysis also shows how these interconnected features are themselves connected to competing ideologies that attempt to describe and direct political development. And it demonstrates how a historical perspective on a constitution can provide normative insights into contemporary controversies. Similar arguments might well be available where constitutions encourage the development of multiparty systems or where social democracy is a more important ideology than republicanism.

1.

THE GUARANTEE CLAUSE, REPUBLICAN GOVERNMENT, AND THE CREATION OF STATE POLITICAL SYSTEMS

Republicanism, despite being a constitutional ‘requirement’ for the composition of state political systems, was ill-defined during the Founding period.12 There has never been a consistent and enduring definition of what state forms align with republicanism, even as the republic has been held out as the ideal form of government since antiquity.13 Plato once defined a republic as a ‘well-ordered’ community ruled by ‘guardians … who in their whole life show the greatest eagerness to do what is for the good of their country, and the greatest repugnance to do what is against their interests.’14 Aristotle and Cicero similarly viewed any government that works for the good of the whole as a republic.15 Later writers would adopt a definition of republicanism that could encompass an aristocracy or an oligarchy, provided that the ruling class acted on behalf of the majority.16

See The Federalist No. 9 (Alexander Hamilton); ibid, No. 10 (James Madison); de Montesquieu (1773). 13 For a discussion of the Republican Guarantee Clause from the founding to the post-Civil War period, see Speech of Hon. Charles Sumner, of Massachusetts, in the United States Senate, February 6 and 7, 1866 (1866), The Equal Rights of All: the Great Guarantee and Present Necessity, for the Sake of Security, and to Maintain a Republican Government, Cong. Globe, 39th Cong., 1st Sess. 673–687 (1866). The definitive history of the Clause is Wiecek (1972). 14 Plato (2012). Many in the founding generation endorsed Plato’s view that political participation should be limited to property owners. 15 Aristotle, The Complete Works (‘[W]hen the One, the Few, or the Many govern well and for the common good, theirs must be called a good Government.’); Cicero, 1 On the Republic (‘Hence liberty has no dwelling-place in any State except that in which the people’s power is the greatest … I mean States in which the people vote, elect commanders and officials, are canvassed for their votes, and have bills proposed to them ...’). 16 As Gordon Wood has argued, republicanism is not necessarily inconsistent with monarchism, but having emerged from a monarchy, it is clear that the Framers were not interested in any government that involved ruling by a king. See Wood (1969), 70. 12

314  Research handbook on the politics of constitutional law Like the political theorists from whom they drew inspiration, Madison and the other founding fathers did not feel pressed to develop a clear definition of republicanism. Other than drawing knowledge from the great republics of classical antiquity, this generation treated the concept as unnecessary of explanation and ingrained in the psyche of the young country.17 In The Federalist 39, Madison described a republic as a ‘government which derives its powers directly or indirectly from the great body of the people, and is administered by officers holding their offices during pleasure, for a limited time, or during good behavior.’ The idea of government by the people rather than government by the nobility was a recurring theme in traditional republican thought. Self-governance also avoided a system in which the people would be pawns in the power struggles among the privileged few, leading to an increased risk of revolution amongst the masses. By partaking in the selection of their rulers, who would presumably be virtuous individuals committed to translating popular preferences into policy, the people would happily submit to their authority in return. As Machiavelli observed, ‘He who obtains sovereignty by the assistance of the nobles maintains himself with more difficulty than he who comes to it [sovereignty] by the aid of the people, because the former finds himself with many around him who consider themselves his equals, and because of this he can neither rule nor manage them to his liking. But he who reaches sovereignty by popular favour finds himself alone, and has none around him, or few, who are not prepared to obey him.’18 The idea that sovereignty lies with the people, who then delegate decision making to a smaller representative body, was one of the primary advantages of a republic over a democracy. A republic, according to The Federalist 10, could better mitigate the mischiefs of faction because of ‘the delegation of the government … to a small number of citizens elected by the rest,’ but also ‘the greater number of citizens, and greater sphere of country, over which [a republic] may be extended’ makes it more difficult for ‘unworthy candidates to practice with success the vicious arts by which elections are too often carried.’19 By creating a virtuous intermediary to translate the preferences of the majority, Madison believed that the dispersiveness of the underlying population and the patriotism of the chosen representatives would prevent a cabal from obtaining power and enacting policies contrary to majority preferences. Madison was not alone in thinking that republicanism required some form of majority rule, translated through a medium that was sufficiently representative. There was almost universal agreement that, in addition to obligating the federal government to come to the aid of states facing rebellion,20 the Guarantee Clause required that states enfranchise some portion of their

17 Wiecek (1972), 13 (‘the word “republican” may well not have had any single and universal denotation to the men who inserted it into the guarantee clause. It may, in fact, have had no meaning at all. John Adams complained late in life that “the word republic as it is used, may signify anything, everything, or nothing.’’’); Wood (1969), 48 (‘the principles of republicanism permeated much of what the colonists read and found attractive. In fact, “the true principles of republicanism are at present so well understood,” so much taken for granted, so much a part of the Americans’ assumptions about politics, that few felt any need formally to explain their origin.’). 18 Niccolo Machiavelli, The Prince, Chapter IX (1532). 19 The Federalist No. 10 (James Madison). 20 See ibid. See also Toren (2007), 405 (arguing that the purpose of the Clause is to ‘(1) protect[ing] the existing states from upheaval; (2) preventing the states from changing their government to one not republican; and (3) protecting the union as a whole from disintegration.’).

Republicanism redefined  315 population to legitimise these intermediaries making policy decisions.21 In short, republicanism requires accountability. But republicanism’s historical connection to monarchy, intended to counter the then-prevailing view of kings as all powerful rulers accountable only to God and not the people, led many opponents of the Constitution to question this new government that the founding generation sought to create. Writing under the pseudonym the ‘Columbian Patriot,’ one such opponent referred to a Republic as a ‘many-headed monster’ that was ‘founded on principles of monarchy – a democratick [sic] branch with the features of aristocracy – and the extravagance of nobility pervading the minds of many of the candidates for office.’22 Famous Anti-Federalist Brutus, who wrote a series of essays opposing ratification, similarly warned that America could not be a republic because its size and diversity of population would inevitably lead to the selection of leaders who lack virtue. ‘They will use the power when they have acquired it to the purposes of gratifying their own interest and ambition,’ he warned, ‘and it is scarcely possible, in a very large republic, to call them to account for their misconduct, or prevent their abuse of power.’23 The Federal Farmer would likewise warn that the proposed constitution was ‘calculated ultimately to make the states one consolidated government,’24 making it easy for the aristocratic few to usurp the power of the people.25 According to these critics, not only was creating a republic in these conditions impossible, the Constitution’s failure to include a bill of rights to safeguard the people made, in the view of these critics, the descent into despotic government a virtual certainty.26 While the ‘Columbian Patriot,’ Brutus, and other Anti-Federalists would insist that the republic proposed by the new constitution was contrary to ‘the fundamental principle of a free government,’27 those who would later govern the new nation under the party label of ‘Federalists’ refuted that the new government would institute a monarchy or oligarchy. Edmund Randolph expressed his belief, during the Constitutional Convention, that ‘a republican government must be the basis of our national union; and no state in it ought to have it in their power to change its government into a monarchy.’28 James Wilson similarly argued, Countless law review articles have been written on what constitutes a republican form of government, and some scholars argue that republicanism requires that states extend political rights to their citizens. See e.g. Natelson (2002), 824–25 (arguing that republicanism requires majority rule); Amar (1994), 749 (arguing that republican government requires that ‘the structure of day-to-day government – the Constitution – be derived from “the People” and be legally alterable by a “majority” of them’); Ely (1980), 122–23 (noting that the Guarantee Clause could be the source of the Court’s voting rights jurisprudence); Bonfield (1962), 560–65 (arguing that the Clause requires the federal government to protect the rights of individual citizens). But this view is not universal. See e.g. Williams (2018), 611 (‘Both the language of the Clause and relevant background principles of eighteenth-century international law strongly suggest that the Clause was designed to protect the rights of states in their sovereign governmental capacities, not the individual rights of those states’ respective citizens.’). 22 A Columbian Patriot, Observations on the Constitution (Feb. 1788), in Bailyn, ed. (1993), vol. 2 at 288–89. 23 Anonymous, Essays of Brutus 1, in Storing ed. (1981), vol. 2, at 363–72. 24 Federal Farmer, Letter 1, Oct. 8, 1787, available at https://​leefamilyarchive​.org/​papers/​essays/​ fedfarmer/​01​.html 25 Federal Farmer, Letter 4, Oct. 12, 1787, available at https://​leefamilyarchive​.org/​papers/​essays/​ fedfarmer/​04​.html (criticising Article 5, in particular, for this reason). 26 Anonymous, Essays of Brutus 2, see n 23. See also Federal Farmer, Letter 4, see n 25. 27 Ibid, 289. 28 See Madison (1920), 351. 21

316  Research handbook on the politics of constitutional law during the ratification debates in Pennsylvania, that there are ‘but three forms of government: monarchy, aristocracy and a republic or democracy, but as the only form that left power in the hands of the people, only the last was suitable for the new nation.’29 Wilson’s comments exemplified that republicanism was commonly lumped with democracy, given that both forms of government placed ultimate authority in the people. The founding generation was less focused on distinguishing republican government from a democracy, even though they recognised the dangers of the latter because they believed a monarchy or aristocracy posed a greater risk to the new nation. From these discussions, one can distill that republicanism promoted a type of majority rule that required elected officials to: (1) act virtuously, (2) for the good of the whole, and (3) periodically stand for election to be held account for any misdeeds by some portion of the population.30 Periodic elections would ensure that elected officials continued to act in the interest of the whole and defy the notion of a hereditary ruler or ruling class. Participation by those most invested in society who exhibited sufficient independence,31 promoted majority rule by treating ‘We the People’ as a homogenous entity with politically discernible preferences best communicated by the virtuous few.32 Identifying the portion of the population qualified to select virtuous rulers and by implication, legitimise their policies as good for the whole, increasingly became the touchstone for authentic republican government. Republican theory required that electors be free of arbitrary constraints imposed by others; as Blackstone recognised, ‘The true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other.’33 Moreover, the requirement of ‘nominal’ participation by the people, even if only a privileged few, likely precluded the establishment of a monarchy, dictatorship, aristocracy, or permanent military

Elliot ed. (1881), vol. 2, at 433 (James Wilson). As Roger Sherman argued during the ratification debates, a republican government is one that has three branches of government, including legislative and executive branches determined ‘by periodic elections, agreeable to an established constitution; and that what especially denominates it a republic is its dependence on the public or the people at large, without hereditary powers,’ a view that appeared to be fairly common during this period. Letter from Roger Sherman to John Adams, 20 July 1789, in Adams ed. (1856), vol. 4, at 437 (see The Federalist No. 39 (James Madison), 27 (defining a republican government as ‘a government which derives all of its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior’); see also Wiecek (1972), 17 (‘The negative senses of “republican” that is nonmonarchical and nonaristocratic commanded the assent of most Americans in 1787. Beyond this it is unsafe to generalize about the precise meaning of the term.’). See also Wood (1969), 53 (‘The sacrifice of individual interests to the greater good of the whole formed the essence of republicanism and comprehended for Americans the idealistic goal of their Revolution’). 31 1 William Blackstone, Commentaries on the Laws of England 167 (noting that the lack of political independence would ‘would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty.’). 32 Wood (1969), 57 (‘What made the Whig conception of politics and the republican emphasis on the collective welfare of the people comprehensible was the assumption that the people, especially when set against their rulers, were a homogeneous body whose “interests when candidly considered are one.’’’). 33 Blackstone, see n 31. 29 30

Republicanism redefined  317 rule, even if through a valid majority vote.34 In late eighteenth century republican theory, ‘there were no hereditary distinctions, no “empty ornament and unmeaning grandeur,” where only sense, merit, and integrity commanded respect’ so that the silent majority excluded from the community of voters had an equal opportunity to become a part of it (at least in theory).35 Thomas Jefferson corroborated this sentiment, writing to Alexander von Humboldt, a prominent Prussian philosopher and scientist, that, ‘The first principle of republicanism is that the lex majoris partis [majority rule] is the fundamental law of every society of individuals of equal rights.’ After the ratification of the constitution, republicanism – and its focus on majority rule – would be further refined through constitutional amendment, illustrating that the federal government was invested in the composition of state electorates. However, the rise of political parties and the contentiousness of the presidential election of 1800 altered the terms upon which the states and the federal government engaged the concept of majority rule.

2.

MAJORITY RULE BUT WHICH MAJORITY?: THE TWELFTH AMENDMENT AND THE EVOLUTION OF REPUBLICANISM

Timothy Pickering had a resume that any modern politician would envy. A hero of the Revolutionary War, he served as Postmaster General, Secretary of War, and Secretary of State under President Washington. He would continue the last post for the Adams Administration. He later served as both a Senator and a Representative from Massachusetts. As an ardent Federalist and New Englander, however, one title is notably absent from his resume: secessionist. The election of 1800 was not only the first in which political parties were decisive to the outcome, it was also the first election that necessitated a transfer of power from one party to another. To be frank, Pickering did not take the loss well. He detested Jefferson. Much of his opposition centred on the declining influence of his party and his concern that the policies of the Jefferson Administration would destabilise the Northeast as the centre of influence in the country.36 In 1803, Pickering conspired with several prominent Federalists, including sitting Vice President Aaron Burr, to secede from the Union and create a northern confederacy. Pickering’s efforts would fare no better than those of his southern counterparts over 50 years later. As historian Keven Gannon has documented, the Federalists failed to secure political wins in state elections throughout the northeast in 1804. Burr failed to win the governorship in New York (a win that would have, perhaps, prevented him from being the villain in the world’s best musical), and Pickering failed to drum up popular support for his efforts.

34 See Wiecek (1972), 22–23 (describing one of the strands of republican thought at the founding as based on the idea that ‘government is founded on the consent of the governed and therefore should reflect the will of the people’ which in turn fed into the ‘agency’ concept of government where ‘the people are the principals, their elected representatives the agents chosen to carry out the popular will.’). 35 Wood (1969), 46–47. 36 Gannon (2001).

318  Research handbook on the politics of constitutional law Pickering felt justified in advocating for secession because the revolutionaries had invoked the right a little over two decades prior; by the early nineteenth century, however, the idea expressed in the Declaration of Independence that the people have the right to ‘alter or abolish’ an oppressive government was on the decline as a vehicle to express dissatisfaction with the government. The conspiracy became a data point that politics, rather than extralegal mob violence, was the preferred method to resolve conflict. By the turn of the nineteenth century, political elites now hoped that majority support, filtered through political parties, would drive debate and resolution of every major political issue, and it largely did until southern secession in 1861. Thanks to this shift, conversations around the prospect of secession took place in the framework of popular politics (i.e., southern secession was publicly tied to the outcome of the 1860 presidential election) rather than as a type of covert backroom conspiracy that marked Pickering’s efforts. Pickering failed because he did not publicly unite northern Federalists in a similar fashion as southern Democrats would coalesce around the slavery issue a generation later. He did not appreciate just how much the rise of political parties and increasing polarisation had changed the relationship between the government and the governed. For the founding generation, the structure of republican government – and the electorate that would safeguard its principles – was a matter to be determined by the states. But political elites challenged this intention within a few short years due to the rise of partisan political competition. The Twelfth Amendment, ratified in 1804, brought suffrage further within the purview of the federal government by establishing that republican principles not only dictated the structure of presidential elections, but importantly, that republicanism does not have to reflect the majority of the state population, just the will of a majority of the voters. The Federalist Papers foreshadowed this shift by explicitly tying notions of the virtue central to effective governance to the republic’s size. Madison, quoting Montesquieu, noted that the federative republic ‘may support itself without any internal corruptions … As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, by means of the association, of all the advantages of large monarchies.’37 The internal happiness of each state, or ‘small republic,’ likewise turned on a need to ‘break and control the violence of faction’ even from within, a threat that, if magnified across jurisdictions, could undermine a ‘well constructed Union,’ as Madison warned in The Federalist 10. Thus, the shift from prioritising the preferences of unpredictable numerical majorities to those of smaller electoral majorities more likely to act with virtue was probably inevitable. By tying the legitimacy of the presidency to the selection of electors who translated the preferences of the majority who either voted for them or for the state legislature that appointed them, the Twelfth Amendment endorsed a view of republican government that is voter, rather than population, centred. Its use of passive voice (‘and the votes shall be counted’) is power that has evolved over time to allow Congress to affirmatively weigh in on the state process for selecting electors.38 According to its text, the Twelfth Amendment requires that electors vote for the president and vice president on separate ballots; additionally, the Amendment provides

The Federalist No. 9 (Alexander Hamilton). See also Letter of Timothy Pickering to Richard Peters, 24 December 1803, in Pickering & C Upham (1867), vol. 3; Id., Letter of Timothy Pickering to George Cabot, 29 June 1804. 38 See Electoral Count Act, 24 Stat. 373 (1887). This statute clarified the outline of Congress’ power to ‘count the votes’ in discarding or accepting slates of electors, some of which were allocated by popular 37

Republicanism redefined  319 that if no candidate garners a majority of the electoral votes, the top three vote getters (instead of the top five as under the original Constitution) will go to House of Representatives, where the candidate who receives a majority of the votes (with each state delegation having one vote) becomes President.39 In altering the 1787 design, the framers of the Twelfth Amendment, both in what they changed about the original Electoral College and in what they left the same, clarified that ‘majoritarianism’ centred on political influence rather than population. The text preserved the ability of state legislatures to choose how to select its electors, consistent with the original Electoral College. Yet the Jeffersonian conception of majoritarianism, unlike the Madisonian vision, anticipated that the President would garner the support of those who held the political power in the state, either through the popularly elected state legislature that chooses electors or through electors selected by voters directly.40 While the requirement that electors vote for president and vice-president on separate ballots might have seemed like a common-sense response to the 1800 Electoral College tie between Thomas Jefferson and Aaron Burr that almost plunged the country into chaos, this aspect of the Twelfth Amendment was deeply tied to respect for the principle of majority rule. By tinkering with the 1787 system, the framers of the Twelfth Amendment intended that the President emerge from an electoral process in which they are the preference of a compound majority of majorities in states central to their Electoral College victory rather than a mere plurality winner. A mere plurality winner, in contrast, would undermine republicanism’s commitment to majority rule. 41 Thus, Aaron Burr emerged as a presidential contender in the election of 1800 despite not being the popular preference, contrary to republican ideals in which the preferences of the people are supposed to hold sway. During debates on the Amendment, Democratic Republicans emphasised the centrality of majority rule to the new system of representative government and, in particular, the danger of electing someone to the presidency who was not the choice of the voters.42 According to Virginia congressman John Clopton, ‘When one person is intended for an office and another person actually obtains it, such election, if indeed it can properly be called an election, is not

vote. Congress passed this statute in response to the controversial election of 1876 and the close elections of 1880 and 1884. 39 US Const. amend. XII. 40 See Foley (2020). See also 7 Annals of Cong. 492 (1803) (hereinafter ‘Annals’)(comments of Clopton) (‘For, sir, however respectful the public attention might have been towards the person who thus becomes Chief Magistrate of the Union, contrary to the intention of the Electors [voters], it cannot be expected that with the acquisition of the office, under these circumstances, he will receive the public confidence.’). Compiled retroactively from newspaper accounts, the Annals are incomplete and contain gaps, but nonetheless, remain useful for providing insight into what those in Congress thought regarding the scope of the Twelfth Amendment. 41 See Foley (2020), 40. According to Professor Foley, ‘Adhering to federalism required Republicans in 1803 to retain the idea, embedded in the Electoral College of 1787, that majority rule in a federal system entails a compound majority-of-majorities. Republicanism, as a philosophy, demands majority rule at the state level. A federal majority is then formed from an overall majority of these subsidiary state-level majorities.’ Ibid. 42 See 7 Annals 491 (1803) (Comments of Clopton) (‘in a Government constituted as our Government is, wherein all the constituted authorities are agents of the people, the suffrages given for the election of those agents ought ever to be a complete expression of the public will’).

320  Research handbook on the politics of constitutional law conformable to the will of those by whom it was made …’43 Similarly, Maryland representative Robert Wright argued that the proposed Amendment was not a ‘party question,’ but transcended party because it sought to ‘prevent men not intended to be chosen from being edged into power. … to set up a man who had not a single vote …’44 The Jeffersonians were, according to Professor Edward Foley, ‘much more committed to this federalist form of majoritarianism than the Philadelphia Convention delegates had ever been’ by allowing states in which they were not a majority to continue to allocate electoral votes based on the popular will post-Twelfth Amendment. They also believed that federalism demanded that they leave to each state the decision of how to allocate its electors, but as usual, partisanship tended to colour what would otherwise appear to be principled positions. Importantly, the framers of the Twelfth Amendment anticipated that each state’s voting population would be organised by political parties, facilitating majoritarian principles in a way that was unthinkable in 1787.45 The expectation that republicanism would be filtered through partisan politics is precisely why the Jeffersonians left to each state the decision of how to allocate its electors, recognising that their party organisation was dominant in enough states to secure an electoral victory moving forward. As Professor Foley observed, ‘members of the Eighth Congress … believe[d] that states would exercise their power to appoint presidential electors in a way that reflected the prevailing political perspective within each state. In particular, once intense two-party competition emerged during the elections of 1796 and 1800, politicians from both parties understood that state legislatures would select methods of appointing electors that would enable the dominant party in each state to promote its own presidential candidate.’46 Even in Maryland, where the Republicans were not a majority, they had, in 1800, been able to beat back efforts by the Federalist dominated state legislature to use a general ticket system in the allocation of electors; that fall, Republicans were able to win five electors. The prospect of minor success in Federalist domains further reinforced that leaving the decision to the states would not imperil Republican political prospects.47 The Twelfth Amendment Ibid, 491. But see ibid, 520 (comments of Huger) (arguing that Rep. Clopton has forgotten that ‘the Government under which we live is formed upon Federative no less than upon Republican principles’ and the proposed amendment would lessen the power of the states). 44 Ibid, 200–01 (comments of Wright). 45 As historian Noble Cunningham has argued, ‘Between the inaugurations of Washington and Jefferson, the two party system became rooted in American politics. So important had the role of parties become in the political life of the nation that the Constitution itself was soon to be amended to recognize the place of parties, whose rise had made the constitutional provisions for the election of the president and the vice president outdated and unrealistic and had led to the troublesome tie between Jefferson and Burr.’ See Cunningham (1957), 260. 46 Foley (2020). 47 See Letter to Thomas Jefferson from Gabriel Duvall, 14 December 1802,  Founders Online,  National Archives, https://​founders​.archives​.gov/​documents/​Jefferson/​01​-39​-02​-0142​-0001 (providing information to Jefferson as to ‘the probable result of a choice of Electors in Maryland by a general ticket’ and concluding that district elections are unpopular but ‘in any rational division of the State, the Republican candidate will succeed in seven of the Eleven districts’); Letter to James Madison from John Beckley, 5 May 1803,  Founders Online,  National Archives, https://​founders​.archives​.gov/​documents/​Madison/​02​ -04​-02​-0682. (‘N York elections are decisively democratic thro’ the State, for both branches, and leave no doubt that the mode for choosing Electors in that state for the presidential Election will be such as the democrats shall prescribe’). The fact that the relative odds of Republican political success at the state level was part of the calculus behind the Twelfth Amendment was contrary to the expectations of 43

Republicanism redefined  321 therefore embodied a type of voter centred majority rule that conflated majoritarianism with major party preferences, and outcomes contrary to the relative political power of the parties were immediately suspect. 48 For example, Thomas Jefferson’s wrote to Speaker of the House Nathaniel Macon regarding Democratic Republican Party success in the 1802 midterms in North Carolina, letters that illustrate this conflation of majoritarianism and majority political party rule. Although his party won 11 of the state’s 12 congressional seats, Jefferson questioned the legitimacy of the election of the lone Federalist from a predominately Republican district: …the Republican cause is daily gaining ground with us, not only the late elections but the candid acknowledgment of many that they have been deceived fully confirm the fact; … and it is worthy of notice that the district which sends the only federalist from the state to Congress, gave a majority of votes to Republican candidates.49

The fact that the Federalists were still competitive in some places, contrary to what Republicans perceived to be majority sentiment, led Republican Thomas McKean, then Governor of Pennsylvania, to note in an 1803 letter to Jefferson that, ‘The people do not always know their good; and when they do, it is not always pursued.’ Yet the fact that Republicans had been successful in the last general election in Pennsylvania assured him that ‘their late conduct however in this State has not depreciated them, nor do I believe that it will in the next election of President.’50 He cautioned, however, that unless the Constitution was amended then the choice of Vice-President could still go to someone who lacked majority support. ‘I believe,’ McKean noted, ‘[the twenty electors] will surrender the choice of Vice-President to the Tories, unless Congress will propose an amendment to the Constitution for discriminating the characters to be voted for.’51 The centrality of partisanship to the new Amendment was not in doubt.52 As McKean wrote to Jefferson in January 1804 upon signing an Act to ratify the Twelfth Amendment, ‘We shall, if this amendment shall be adopted by thirteen States, (which I believe it will, tho’ probably

Founders like Alexander Hamilton who thought that the proposed Amendment would both ‘strengthen[ ] the connection between the Foederal [sic] head and the people’ and ‘diminish[ ] [ ] the means of party combination, in which also the burning zeal of our opponents will be generally an overmatch for our temperate flame.’ See Letter from Alexander Hamilton to Gouverneur Morris, 4 March 1802, Founders Online,  National Archives, https://​founders​.archives​.gov/​documents/​Hamilton/​01​-25​-02​-0300. 48 Cunningham (1957), 259. 49 See Letter to Thomas Jefferson from Nathaniel Macon, 3 September 1803,  Founders Online,  National Archives, https://​founders​.archives​.gov/​documents/​Jefferson/​01​-41​-02​-0242. 50 See Letter to Thomas Jefferson from Thomas McKean, 7 February 1803, Founders Online, National Archives, https://​founders​.archives​.gov/​documents/​Jefferson/​01​-39​-02​-0406 (promising Jefferson that ‘in 1804 the twenty electors of President & Vice-President will give their unanimous vote for the present Chief Magistrate’). 51 Ibid. 52 See Letter to Thomas Jefferson from DeWitt Clinton, 10 June 1802, Founders Online, National Archives, https://​founders​.archives​.gov/​documents/​Jefferson/​01​-37​-02​-0464. Jefferson noted that the prospects of the Republican Party in South Carolina are ‘very good’ and included, in his missive, a pamphlet that, according to an editorial note, believed to be Considerations on the Propriety of Adopting a General Ticket in South-Carolina, for the Election of Representatives in Congress and Electors of President and Vice-President of the United States. Addressed to the People of South Carolina by Crito. Ibid.

322  Research handbook on the politics of constitutional law no more, unless the effects of party shall in the mean time cease) have our next President and Vice-President genuine Republicans, otherwise I doubt it.’53 Moreover, the election of 1800 had led to the decline of the Federalist Party and, by implication, any meaningful opposition to both ratification and the path to the presidency.54 In elections prior to the ratification of the Twelfth Amendment, the Republicans were ‘endeavoring not only to beat them [the Federalists],’ according to a New York partisan, but ‘to beat them soundly; that they may be still next Spring and not attempt to intermeddle in the Legislature which is to appoint Electors for P. U.S. & V.P.’55 The premise that political parties should filter majority preferences in the selection of the president was not without its controversy. By putting power back in the hands of the people, the Amendment reduced the likelihood that the presidency would be thrown to the House of Representatives, where all states – big and small – enjoyed equal voting power in the selection of the President and could manoeuvre the presidency into the hands of someone not preferred by a majority of voters.56 In addition, delegations could only select among the top three candidates instead of the top five, thereby decreasing the likelihood that a political minority could conspire in the election of a fourth or fifth place finisher lacking in majority support. Some representatives opposed the Amendment because of this perceived shift of authority from the states (particularly the smaller states) to the people, given that the Amendment would make it less likely that presidential elections would be resolved by the House of Representatives, where each state delegation has one vote, and would be instead left to the public that was, in the words of one representative, ‘agitated with violent party rage.’57 53 See Letter to Thomas Jefferson from Thomas McKean, 8 January 1804, Founders Online, National Archives, https://​founders​.archives​.gov/​documents/​Jefferson/​01​-42​-02​-0222. 54 The fact that a bill had been introduced in Massachusetts to divide the states into districts for the purpose of choosing presidential electors in 1803 is notable, given that the state had traditionally been a Federalist stronghold. See Letter to Thomas Jefferson from Joshua Danforth, 16 July 1803,’ Founders Online, National Archives, https://​founders​.archives​.gov/​documents/​Jefferson/​01​-41​-02​-0036 (‘A motion will be made at the next Session of the Legislature of Massachusetts to divide the State into districts, for the Choice of electors of President&c, but it is very uncertain whether it will succeed, if it should, Massachusetts will give eight or nine Votes to the republican Candidate for President.’). See also Letter to Thomas Jefferson from Joseph Barnes, 25 March 1804, Founders Online, National Archives, https://​founders​.archives​.gov/​documents/​Jefferson/​01​-43​-02​-0082 (‘In fine; so highly do I approve, & so ardent is my zeal for the principles & measures of the present Administration that were my efforts necessary, and were it possible, I would waft myself on the wings of friendship & esteem to Ensure the re-election of Mr Jefferson – however I am happy in the Opinion there will be but a feeble Opposition made especially as the Federalist party, from the general advice I receive, Seems daily to decline.’). 55 See Letter to James Madison from Samuel Latham Mitchill, 28 April 1803, Founders Online,  National Archives, https://​founders​.archives​.gov/​documents/​Madison/​02​-04​-02​-0660. [Original source: The Papers of James Madison, Secretary of State Series, vol. 4, 8 October 1802 – 15 May 1803, ed. Mary A. Hackett, J.C.A. Stagg, Jeanne Kerr Cross, Susan Holbrook Perdue, and Ellen J. Barber. Charlottesville: University Press of Virginia, 1998, p. 558.] 56 Cunningham, (1957), 240. 57 7 Annals 518 (1803) (comments of Randolph) (‘The present mode of bringing forward candidates for the office of President and Vice President is the least liable to call forth art, intrigue, and corruption; the uncertainty of the event and the difficulty of making arrangements are strong checks to the artful and designing. But the moment the mode pointed out by this resolution is adopted, the door for intrigue and corruption is open; the candidates and their friends can calculate with certainty and apply the means direct; the power of party, influence of office, art, cunning, intrigue, and corruption, will all be used, and used to effect, because the object is certain.’); ibid, 532 (comments of Huger) (‘when I see (it matters

Republicanism redefined  323 The ability of political parties to shape and redefine republicanism would not only survive the first party system, but also have significant implications for the scope of federal power over voting and elections. First, political parties blurred the lines between state and federal officials, creating a synergy across branches that were originally supposed to work in opposition to each other.58 Federalism – ostensibly preserved by the Twelfth Amendment – could not prevent coordination between officials at each level of government in the context of presidential elections. Political parties also connected state and federal officials in a way that prevented the states’ role in the composition of the federal government from cabining federal authority. These entities rendered obsolete the Electoral College’s intended purpose of protecting smaller states, by making it less likely that presidential disputes would be resolved by the House of Representatives in which small states had equal voting power with larger states. Political parties also made it difficult to maintain the independence of the president because electors were committed to vote for the party’s slate of candidates in advance of the election.59 Political parties facilitated coordination across elections that extended beyond the presidency. Just as Burr’s political manoeuvring in the New York state legislative elections was key to the Democratic Republicans’ fortunes in the 1800 presidential election that fall, partisan presidential politics would continue to impact and shape state and federal elections moving forward. Thus, the Twelfth Amendment, by elevating the role of the parties in presidential politics, set the stage for the deployment of federal power over elections and state political systems that has many times worked to the benefit of voters along racial and partisan lines.60

3.

FROM HERNDON TO JONES: POLITICAL PARTIES AS STATE ACTORS IN REPUBLICAN THEORY

Dr. Lawrence A. Nixon spent his life as a trailblazer. He was a charter member of the El Paso, Texas branch of the NAACP. He was the first black doctor admitted to the Texas State not whether intentionally or from inadvertence) that advantage is about to be taken of this circumstance, that in the moment of party irritation and party zeal, and at a time when it may be truly stated that the influence and interests of the larger States are completely triumphant, and many of the smaller States, unconscious of danger, are enlisted from various causes under their banners; that at such a moment a proposition is brought forward to alter the Constitution in one of its most important features, and, under the plausible pretext of giving effect to the will of the people, the small States are at one blow to be deprived of the checks and safeguards secured to them by the Federal compact in the election of the Executive, and this important branch of the Government is henceforward and forevermore to be put entirely and exclusively into the hands of the larger States’); ibid, 536 (comments of Hastings) (‘Besides, sir, I fear if the amendment obtains, that it may give a weight and influence to the large States in the Union, in the election of a President and Vice Present, that they ought not to possess.’). 58 See Levinson & Pildes (2006) (arguing that separation of powers has to be viewed through the lens of party competition). 59 Ibid, 2323; see also Kramer (2000), 225 (‘[T]he power of state legislators to pick electors could have given the states considerable leverage over the chief executive had the Electoral College stayed true to its original design. But the emergence of the popular canvass and winner-take-all rule have deprived the College of most of its significance.’). 60 See Tolson (2010) (arguing that states can gerrymander to maximise the number of districts that mirror the partisan composition of a majority of the electorate and the majority party in the state to ensure that state interests are represented nationally); Tolson (2012) (arguing that the partisan affiliation of the congressional delegation should parallel that of the electorate).

324  Research handbook on the politics of constitutional law Medical Association and the El Paso County Medical Society. Importantly, he was also the lead plaintiff in two cases challenging Texas’s all white Democratic primary.61 In a series of cases known as the White Primary Cases, the Supreme Court invalidated a succession of Texas laws that prohibited African-American voters from participating in the Democratic Party’s primary. The 1923 version of the law stated, ‘In no event shall a negro be eligible to participate in a Democratic Party primary election held in the State of Texas.’62 The Supreme Court, in Nixon v. Herndon, struck the law down as a facially discriminatory effort by the state to disenfranchise African-Americans on the basis of race in violation of the Fifteenth Amendment.63 The state again tried to disenfranchise African-Americans, this time delegating authority to the executive committee of a political party to determine the qualifications of the voters who could participate in the primary. Shortly thereafter, the Democratic Party passed a resolution forbidding African-Americans from participating in their primary. The Court, in Nixon v. Condon, held that this effort also violated the Fifteenth Amendment, on the grounds that the executive committee has been ‘invested with an authority independent of the will of the association in whose name they undertake to speak,’ which makes them ‘organs of the State itself, the repositories of official power.’ As ‘governmental instruments,’ they, too, were bound by ‘the mandates of equality and liberty that bind officials everywhere.’64 This promise of rigorous judicial enforcement proved to be illusory. In Grovey v. Townsend, the Supreme Court upheld a Texas Democratic Party resolution that limited membership to whites on the grounds that there was no direct state action that ran afoul of the Fourteenth and Fifteenth Amendments.65 The Court refused to intervene even though it was clear that the resolution was an instance of ‘under-legislation,’ or where the state left a gap in its regulatory regime to further discrimination by the Democratic Party.66 The Grovey Court’s focus on the state action requirement was surprising given Herndon and Condon, and Grovey unfortunately breathed new life into a troubling precedent that predated these cases. In Newberry v. United States, the Court had reversed the convictions of defendants who had violated the Federal Corrupt Practices Act on the ground that Congress’s authority under the Elections Clause did not extend to enacting legislation that applied to party primaries.67 While cases before Newberry had placed significant weight on the fact that Congress enjoyed substantial authority to protect rights created by the Constitution,68 the Nixon v. Herndon, 273 US 536 (1927); Nixon v. Condon, 286 US 73 (1932). Herndon, 273 US at 540 (quoting 1923 Tex. Gen. Laws 74). 63 Ibid. 64 Nixon v. Condon, 286 US 73, 88 (1932). 65 295 US 45 (1935). 66 See Tolson (2019) (arguing that Congress can legislate pursuant to the Elections Clause to prevent such under-legislating). 67 256 US 232 (1921). The Federal Corrupt Practices Act provides, in pertinent part that, ‘‘No candidate for Representative in Congress or for Senator of the United States shall give, contribute, expend, use, or promise, or cause to be given, contributed, expended, used, or promised, in procuring his nomination and election, any sum, in the aggregate, in excess of the amount which he may lawfully give, contribute, expend, or promise under the laws of the State in which he resides …’ Ibid, 243. In many ways, the FCPA tracks the Enforcement Act of 1870 by incorporating state law by reference. 68 See Ex Parte Siebold, 100 US 371 (1880) (finding that Congress had authority under the Elections Clause to make a violation of a state election statute a federal offence); Ex Parte Clarke, 100 US 399 (1880) (same). Chief Justice White criticised the majority for this switch in his dissent in Newberry, 61

62

Republicanism redefined  325 Newberry Court found ‘no support in reason or authority for the argument that because the offices were created by the Constitution, Congress has some indefinite, undefined power over elections for Senators and Representatives not derived from [the Elections Clause].’69 The Court’s about-face from Newberry to Herndon to Condon and then again in Grovey can only be explained in federalism and race terms.70 Under a conservative interpretation of Newberry, only the state’s failure to police the primary process could justify federal action. Instead, the Court went further, finding that Congress had no authority to regulate party primaries at all. But when the issue of race is present, as it was in Herndon and Condon, the Court was willing read the state action requirement expansively, defying the principles of federalism that were so central to Newberry. However, the Court’s inconsistent position on the core question of whether political parties were state actors left the door open for Grovey’s complete and total abandonment of the equality mandates that had justified reading the state action requirement broadly in the early White Primary Cases. In the years following Grovey, the Court quickly recognised that its position ignored the practical reality that African-Americans were being disenfranchised indirectly through the party process and the state was complicit in this disenfranchisement. In US v. Classic, the Court sustained the indictment of election commissioners who altered election returns in a primary election, and in doing so, upheld the constitutionality of criminal laws enacted pursuant to Congress’s authority under the Elections Clause and the Voter Qualifications Clause of Article I that prohibited anyone, acting under colour of state law, from depriving an individual of any ‘rights, privileges and immunities secured and protected by the Constitution and laws of the United States.’71 The Court found that the commissioners interfered with the right to vote ‘at the only stage of the election procedure when their choice is of significance.’ In the Court’s view, the Elections Clause and the Voter Qualifications Clause were complements that extended federal authority to party primaries with the aid of the Necessary and Proper Clause. The Elections Clause validated federal legislation that policed the process by which votes are counted, and the Voter Qualifications Clause similarly provided authority for Congress to ensure that voters qualified under state law could cast their ballot. Thus, states

noting that, without the Elections Clause, states do not have any authority to regulate the times, places and manner of federal elections so ‘it follows that the state power to create primaries as to United States Senators depended upon the grant [the Elections Clause] for its existence. It also follows that, as the conferring of the power on the States and the reservation of the authority in Congress to regulate were absolutely coterminous … it results that nothing is possible of being done under the former which is not subjected to the limitation imposed by the latter.’). Ibid, 261–62 (White, C.J., dissenting). 69 Newberry, 256 US at 249. 70 Ibid, 258 (‘We cannot conclude that authority to control party primaries or conventions for designating candidates was bestowed on Congress by the grant of power to regulate the manner of holding elections. The fair intendment of the words does not extend so far; the framers of the Constitution did not ascribe to them any such meaning. Nor is this control necessary in order to effectuate the power expressly granted. On the other hand, its exercise would interfere with purely domestic affairs of the State and infringe upon liberties reserved to the people.’). 71 United States v. Classic, 313 US 299, 310 (1941). The Voter Qualifications Clause of Article I, Section 2 of the US Constitution makes federal voting rights dependent upon participation in state elections. US Const. art. I, § 2, cl. 1 (‘The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.’); id. amend. XVII (similar requirement for senate elections).

326  Research handbook on the politics of constitutional law still have the primary role of choosing voter qualifications, but the Court was clear that, with respect to policing the procedure of elections, state control over voter qualifications exists only ‘to the extent that Congress has not restricted state action by the exercise of its powers to regulate elections under § 4 and its more general power under Article I, § 8, clause 18 of the Constitution ‘to make all laws which shall be necessary and proper for carrying into executing the foregoing powers.’72 Classic, and its holding that the primary is an integral part of the election for selecting congressman, opened the door for successful challenge to the all-white primary, but the road to the right outcome was unnecessarily lengthy because of the failure to appreciate that political parties were state actors that, post-Twelfth Amendment, served as the primary facilitators of majoritarian ideals. Finally, the Supreme Court decided Smith v. Allwright, which held that the Democratic Party’s practice of excluding African-Americans from their primary violated the Fifteenth Amendment,73 and Terry v. Adams, which extended Smith’s broad reading of federal power to primaries conducted by a county political organisation.74 Terry, in particular, was even more far removed from the state action requirement that had stymied judicial action in earlier cases like Newberry and Grovey v. Townsend because the discriminatory action was undertaken by a third party organisation one step removed from the Democratic Party. But the fact that the Twelfth Amendment sanctions political parties as legitimate extra-constitutional actors makes these cases less problematic from a doctrinal and textual perspective. With the Twelfth Amendment, the Framers not only endorsed a cohesion between political parties, the state, and the electorate, but they were explicit about the role that parties would play in making sure that the composition of state and federal officeholders reflects the preferences of the electorate. The implication of this argument is that some of the Supreme Court’s more recent cases involving the First Amendment rights of political parties, most notably California Democratic Party v. Jones, were wrongly decided. The Court took the position that parties were private actors such that states could not opt for a blanket primary that resulted in unaffiliated voters choosing the party’s candidates. Yet the history of the Twelfth Amendment is clear that the US constitutional tradition since 1804 has been less about the parties as providers of pure ideological products and more about the role of the parties in facilitating the democratic preferences of the electorate. California’s blanket primary was adopted, in part, because the candidates that emerged from its closed primary system failed to espouse the moderate positions that the electorate tended to favour.75 The Court rejected this argument as a justification for the blanket primary, noting the First Amendment problems with allowing unaffiliated voters to choose the party’s standard bearers.76 Yet the Court ignored the very characteristics of both parties and primaries that not only render them an invaluable facilitator of majoritarian principles, but that had led the Court, in the latter iterations of the White Primary Cases, to find that the Democratic and

Classic, 313 US at 315. 321 US 649 (1943). 74 345 US 461 (1953). 75 Cal. Dem. Party v. Jones 530 US 567, 569 (2000). 76 Ibid, 579–80 (noting the deleterious effects of the blanket primary because ‘it encourages candidates – and officeholders who hope to be renominated – to curry favor with persons whose views are more ‘centrist’ than those of the party base,’ which undermines the ability of the party to choose its leaders.) 72 73

Republicanism redefined  327 Jaybird Parties involved state action: the public nature of primaries,77 the fact that the primaries were regulated and paid for by the state,78 and not least of all, the fact that primaries were often dispositive of the office in question.79 As Justice Stevens recognised in his Jones dissent, ‘both the general election and the primary are quintessential forms of state action’ that facilitate republican and democratic ideals.80 These ideals are based on a broad notion of ‘We the Voters’ that encompasses even nonparty members who are entitled to have a meaningful vote for the candidate of their choice, consistent with the principles of majoritarianism that underlie the post-Twelfth Amendment constitutional system.

4. CONCLUSION As this chapter shows, the definition of republicanism was in flux at the founding, and the Twelfth Amendment clarified the scope of these principles by elevating voters to the centre of republican theory. The Amendment did so by creating an expectation that the President be the choice of a majority of those who wield political power on behalf of the state, either the voters or the popularly elected state legislature. This version of majoritarianism, filtered through the medium of political parties, has normative implications for the constitutional status of these entities. Given their post-Twelfth Amendment constitutional role, it is more appropriate to view political parties as state actors rather than as private associations entitled to First Amendment rights. Because they are the vehicle through which majoritarian politics are filtered, the Supreme Court should treat them as state actors, similar to its approach in the White Primary Cases, and recognise that it is inconsistent with post-Twelfth Amendment republicanism to treat them as private entities, as the Court did in Democratic Party v. Jones. Treating political parties as state actors reveals one last striking insight into US constitutional development. The US Constitution, once notoriously anti-party, evolved to accommodate an emerging political reality in which parties became the key intermediaries between ‘We the People’ and the levers of government. In essence, the caselaw has not yet grasped that the constitutional text was updated to reflect a new political reality in which the country had shifted from anti-political party to pro-political party. But this fact is also troubling for another reason. The distribution of authority in the US political system, currently confined to two major parties, is especially problematic where the parties, as agents, leverage the power of the state. A multiparty system designed to accommodate the full spectrum of public opinion would not only facilitate a more equitable distribution of power in our system, but is not a reality that is foreclosed by the existing constitutional text. Indeed, there was once a time in which third parties forced the two major parties to adhere more closely to the middle,81 suggesting that the current US constitutional order could accommodate a proportional, multiparty democracy should the political will arise.

cf. United States v. Classic, 313 US 299 (1941). cf. Terry v. Adams, 345 US 461 (1953). 79 cf. ibid; Classic, 313 US at 315. 80 Cal. Dem. Party v. Jones 530 US 567, 594, 601 (2000) (Stevens, J., dissenting). 81 See Tolson (manuscript on file with author) (discussing how late nineteenth century voter suppression efforts were designed to target racial minorities and third-party voters). 77 78

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REFERENCES Adams, Charles F. (ed) The Works of John Adams (Little, Brown, 1856). Amar, Akhil Reed. (1994). ‘The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem,’ University of Colorado Law Review 65: 749–86. Aristotle. The Complete Works (Princeton University Press, 1984). Bailyn, Bernard (ed). Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification (Library of America, 1993) 288–89. Blackstone, William. Commentaries on the Laws of England. Bonfield, Arthur E. (1962). ‘The Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude,’ Minnesota Law Review 46: 513–72. Broadwater, Jeff. James Madison: A Son of Virginia and a Founder of the Nation (University of North Carolina Press, 2012). Cicero, On the Republic (Cornell University Press, 2014). Cunningham, Noble E. The Jeffersonian Republicans: The Formation of Party Organization, 1789–1801 (University of North Carolina Press, 1957). de Montesquieu, Baron. The Spirit of the Laws, 5th edition (Thomas Nugent trans., London, printed for J. Nourse & P. Vaillant, 1773). Elliot, Jonathan (ed). Debates in the Several State Conventions on the Adoption of the Federal Constitution, 2nd edition (J.B. Lippincott, 1881). Ely, John Hart. Democracy and Distrust (Harvard University Press, 1980). Foley, Edward B. Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College (Oxford University Press, 2020). Gannon, Kevin M. (2001). ‘Escaping “Mr. Jefferson’s Plan of Destruction”: New England Federalists and the Idea of a Northern Confederacy 1803–04,’ Journal of the Early Republic 21: 414–43. Griffith, Elmer C. The Rise and Development of the Gerrymander (Arno Press, 1974 [1907]). Kramer, Larry D. (2000). ‘Putting the Politics Back into the Political Safeguards of Federalism,’ Columbia Law Review 100: 215–93. Levinson, Daryl J. & Richard H. Pildes. (2006). ‘Separation of Powers, not Parties,’ Harvard Law Review 119: 2313–86. Machiavelli, Niccolo. The Prince, Chapter IX (1532). Madison, James. Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America (Oxford University Press, 1920). Natelson, Robert G. (2002). ‘A Republic, Not a Democracy? Initiative, Referendum, and the Constitution's Guarantee Clause,’ Texas Law Review 80: 807–57. Pickering, Octavius & Charles Wentworth Upham, The Life of Timothy Pickering (Little, Brown Co., 1867). Plato, The Republic (Benjamin Jowett ed. & trans., Clarendon Press, 2012). Sharp, John Roger. American Politics in the Early Republic: The New Nation in Crisis (Yale University Press, 1993). Storing, Herbert J. (ed). The Complete Antifederalist (University of Chicago Press, 1981). The Federalist (Clinton Rossiter ed., New American Library, 1961). Tolson, Franita. (2012). ‘Benign Partisanship,’ Notre Dame Law Review 88: 395–455. Tolson, Franita. Discrimination Within the Limits of Law: Colorblind Targeting as Racially Discriminatory Intent (manuscript on file with author). Tolson, Franita. (2010). ‘Partisan Gerrymandering as a Safeguard of Federalism,’ Utah Law Review 2010: 859–909. Tolson, Franita. (2019). ‘The Spectrum of Congressional Authority over Elections,’ Boston University Law Review 99: 317–93. Toren, Jonathan. (2007). ‘Note, Protecting Republican Government from Itself: The Guarantee Clause of Article IV, Section 4,’ New York University Journal of Law & Liberty 2: 371–410. Wiecek, William. The Guarantee Clause of the US Constitution (Cornell University Press, 1972). Williams, Ryan C. (2018). ‘The “Guarantee” Clause,’ Harvard Law Review 132: 602–88. Wood, Gordon S. The Creation of the American Republic 1776–1787 loc. 70 (University of North Carolina Press, 1969).

19. Transatlantic ‘administrative constitutionalism’: New Deal models and supranational governance in Europe since the 1950s Peter L. Lindseth

Over the last decade and a half, a number of scholars on both sides of the Atlantic have deployed the notion of ‘administrative constitutionalism’ to examine the sphere of administrative governance as a key site of constitutional change in both the European Union (EU) and the United States.1 This chapter seeks to add a new dimension to this literature. Administrative constitutionalism, as Gillian Metzger has rightly maintained, is more than ‘just the application of established constitutional requirements by administrative [actors]’; rather, it ‘also encompasses the elaboration of new constitutional understandings … through structural and substantive measures’ in the construction of administrative governance itself.2 This chapter seeks to show that the process of European integration, by depending on the transfer of a form of administrative governance to the supranational level, is perhaps among the most transformative examples of administrative constitutionalism that we can identify in the historical record.3 The linkage between the emergence of supranational governance in Europe and the development of administrative constitutionalism in the United States is, from this perspective, not merely conceptual. It is, rather, deeply rooted in the overlapping history of public law and institutional change in the north Atlantic world in the interwar and postwar decades.4 For many advocates of European integration in the late 1940s and early 1950s, the seeming example of technocratic independence under the New Deal offered a justification for the delegation of regulatory power to autonomous supranational bodies. The irony, of course, was that the administrative constitutionalism of Roosevelt’s New Deal was less receptive, both in principle and practice, to the sort of technocratic independence that these advocates believed to be inevitable and desirable in the case of integration. Consistent with a more nuanced understanding of the New Deal model, however, European integration would eventually secure a durable institutional existence only after being brought more directly under the shared oversight of the national executives of the Member States. Contrary to expectations of functionalist (and later so-called neofunctionalist) theorists of European integration,5 governance beyond the state in postwar Western Europe did not

See e.g. Fisher (2007); Eskridge & Ferejohn (2010); Lee (2010); Hartmann (2013); Metzger (2013); Kessler (2014); Isiksel (2016). 2 Metzger (2013), 1900. 3 See generally Lindseth (2010), on which this chapter draws. 4 As such, this chapter seeks to contribute to our theoretical understanding of the emergence and evolution of modern administrative governance. cf. Lee (2017). 5 See below nn 17 and 51 and accompanying text. 1

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330  Research handbook on the politics of constitutional law evolve merely as a consequence of functional demands for technocratic independence. Rather, two additional dimensions of change also proved decisive: the political – or the defence of existing institutional advantages and/or the struggle to realise new ones; and the cultural – or the mobilisation of conceptions of ‘right’ or legitimate governance in the face of purported functional and political pressures for change.6 As a consequence of the interplay of all three dimensions – functional, political, and cultural – European integration ultimately settled on a form of governance in which the political oversight of supranational technocracy by national executives played a decisive legitimating role, a feature of European supranationalism that persists to this day. Even if a measure of supranational technocratic autonomy was broadly recognised as functionally necessary to the European project, national executives worked successfully to preserve significant institutional advantages in the integration process by mobilising conceptions of legitimacy that, for better or worse, remain wedded to national institutions to a significant degree. It was through national executive oversight – eventually supplemented by national parliamentary and national judicial oversight7 – that integration has been able to maintain a connection to conceptions of democratic and constitutional legitimacy on the national level, even as functional pressures seemed to warrant a shift in governance to autonomous supranational bodies. In this way, European integration built on – albeit not without significant struggle and disruption over many decades – the political and legal effort to reconcile democracy and technocracy that can be described as ‘the postwar constitutional settlement of administrative governance.’8

1.

THE NEW DEAL AS A MODEL OF AUTONOMOUS TECHNOCRATIC GOVERNANCE FOR EUROPE

For Western European elites faced with the daunting task of reconstruction in the aftermath of World War II, the New Deal seemed to offer a successful model of institutional and regulatory innovation in the face of devastating crisis. ‘[T]he situation at the end of this war will resemble that in America in 1933, though on a wider and deeper scale,’ wrote David Mitrany, a Romanian-born, naturalised-British scholar of international relations, in 1943. ‘And for the same reasons the path pursued by Mr. Roosevelt in 1933 offers the best, perhaps the only chance for getting a new international life going.’9 Historians of European integration have also noted the impact of the New Deal on the thinking of Jean Monnet, among the more successful proponents of European integration in the postwar decades.10 The American historian John Gillingham, for example, has written: ‘The essential elements of [Monnet’s] policy’ – the creation of an explicitly supranational ‘High Authority’ (today called the European 6 For more on the theory of institutional change underlying this thesis, see e.g. Lindseth (2017), 60–93. 7 Each of these dimensions of nationally-legitimating oversight of supranational administrative governance are analysed in detail in the core chapters of Lindseth (2010); see ibid, chapter 3 (national executive oversight), chapter 4 (national judicial oversight), and chapter 5 (national parliamentary oversight). 8 Lindseth (2010), 3. For an analysis of the roots of this settlement on the national level, see generally Lindseth (2004). 9 Mitrany (1946). 10 See e.g. Gillingham (1991), 232; Fransen (2001), 92.

Transatlantic ‘administrative constitutionalism’  331 Commission) with seemingly unprecedented degree of regulatory powers capable of binding national governments – ’underscore the importance of the New Deal inspiration.’11 Monnet wanted nothing less, in Gillingham’s view, than ‘a New Deal for French, and European, industry and planned to launch and land it with the help of a handful of like-minded men who wielded decisive power in the post war world.’12 From an institutional standpoint, the New Deal seemingly offered a political operator like Jean Monnet or a theorist like David Mitrany a model of relatively autonomous, technocratic governance, freed from legal limitations inherited from the past. Outdated notions of ‘national sovereignty’ in the case of European integration – like those of ‘separation of powers’ in the purported case of the New Deal – would no longer be allowed to impede the creation of new supranational and international bodies for the purposes of international cooperation. These bodies, rather, would be designed according to functional demands – that is, they would emerge and develop as a function of the problems they were designed to address. In the European case, these problems inherently transcended national boundaries, and as such the functionally necessary institutional structures that were created to address them could not be forced to fit into a priori legal norms derived from outdated categories like national sovereignty or even separation of powers. Functionalism, of course, had been an idée-force the interwar period, particularly (but not exclusively) among Anglo-American public law scholars.13 The functionalist outlook seemed to offer an objective justification for departures from traditional institutional patterns or legal categories that these scholars thought were demanded in the regulation of a modern industrial society. As the New Dealer James Landis had put it in his 1938 book, The Administrative Process, the expansion of autonomous technocratic governance in the United States in the prior half-century was a consequence of ‘the inadequacy of a simple tripartite form of government to deal with modern problems.’14 The guiding principle of institutional design in the face of profound social change, a young Anglo-Canadian scholar wrote in 1935, should be ‘neither one of law nor of formal logic, but of expediency.’15 Functionalist approaches to questions of public law were common throughout the English-speaking world during this time, with Americans like Landis or Felix Frankfurter, or Britons like Harold Laski, Ivor Jennings, and William Robson, at the intellectual forefront of what was, in effect, a transatlantic scholarly movement. Over the course of the interwar and into the postwar period, this line of functionalist thinking migrated out of the domestic public-law realm into that of international relations. The aim of a theorist like Mitrany or a political actor like Monnet was, in effect, to take the ‘administrative process’ of a Landis – that is, problem-solving by legal and technocratic experts in institutions insulated from direct political control – to a whole new level, one beyond the nation-state. Indeed, several postwar constitutions in Western Europe seemed to give express sanction to Gillingham (1991), 232. Ibid, 368. 13 See generally Loughlin (2005). Functionalism, however, was not the exclusive preserve of domestic public law theorists in the interwar period (witness Mitrany), nor was it the sole property of the intellectual left in the Anglo-American world. See e.g. Schmitt (1936). For a discussion of Schmitt and other authoritarian/fascist theorists of the interwar period who argued in a functionalist vein, see Lindseth (2010), 63–64, 70–74. 14 Landis (1938), 1. 15 See Willis (1935), 75. 11 12

332  Research handbook on the politics of constitutional law this normative aim.16 David Mitrany’s 1943 pamphlet, A Working Peace System: An Argument for the Functional Development of International Organization, became the foundational text for this line of thinking in the international-relations context over subsequent decades.17 The insistence on administrative independence from hierarchical political control arguably reflected, however, a somewhat caricatural understanding of the New Deal example on both Mitrany’s and Monnet’s part. Whatever Roosevelt might have thought of fostering administrative independence as a practical matter, one need only look at the administration’s position in the famous 1935 Supreme Court case of Humphrey’s Executor (upholding the constitutionality of independent regulatory agencies in certain circumstances) to see that Roosevelt was clearly hostile to it as a matter of law.18 Roosevelt was, one might argue, an advocate of the ‘unitary executive’ theory avant la lettre.19 Thus, like Monnet after him, Mitrany was clearly selective in understanding the New Deal model. Indeed, had both men paid more attention to the central place the Roosevelt Administration gave to maintaining some form of hierarchical political control over administrative actors, they might have been more prepared for the assertions of national executive prerogatives in European integration that were to come. What both Mitrany and Monnet clearly did wish to see emulated, however, was the apparent refusal of the New Deal to confine its institutional responses to ‘the old constitutional grooves’; rather, as Mitrany somewhat inartfully put it, President Roosevelt ‘simply stepped over them,’ and, by implication, the leaders of postwar international cooperation in Western Europe should do the same.20 This refusal to be constrained by traditional constitutional categories, Mitrany insisted, reflected the ‘whole trend of modern government,’ which was increasingly moving toward organisation ‘along the lines of specific ends and needs, and according to the conditions of their time and place, in lieu of traditional organisation on the basis of a set constitutional division of jurisdiction of rights and powers.’21 The emergence of ‘specific administrative agencies’ of the New Deal-type was, as Mitrany put it, ‘the peculiar trait and indeed the foundation of modern government,’ whose purpose and power was being ‘determined less by constitutional norms than by practical requirements.’22 Mitrany called for harnessing this functionalist dynamic in service of peaceful change among states, allowing New Deal-type administrative governance to ‘do internationally what it does nationally.’23 ‘The functional bodies contemplated here,’ he wrote, should have ‘autonomous tasks and powers,’24 hopefully staffed by ‘experts representing their respective technical departments, without passing through the complicating network of political and dip Article 24(1) of the West German Basic Law of 1949, for example, provided: ‘The Federation may by legislation transfer sovereign rights [Hoheitsrechte] to interstate institutions [zwischenstaatliche Einrichtungen].’ The postwar Italian constitution contained a similar provision (Article 11) by which Italy agreed ‘on conditions of equality with other states, to the limitations of sovereignty necessary for an order that ensures peace and justice among Nations; it promotes and encourages international organizations having such ends in view.’ 17 See Griffiths (1999), 191–94. 18 Humphrey’s Executor v. United States, 295 US 602 (1935). 19 See Calabresi & Yoo (2008), 278–89; see also Horton (2008) (‘Roosevelt was a major champion of the Unitary Executive’). 20 Mitrany (1946), 29. 21 Ibid, 28. 22 Ibid. 23 Ibid, 34. 24 Ibid, 7. 16

Transatlantic ‘administrative constitutionalism’  333 lomatic censors.’25 Indeed, Mitrany called for ‘a detached international civil service,’ which in his view ‘would be the best insurance against any possible abuses’ (i.e., assertions of excessive national control) and would foster instead ‘a new conscience’ of independence and practical problem-solving on a transnational scale.26 As for political control of this new technocracy, Mitrany was vague, even contradictory. He rejected the view that, in keeping with traditional notions of sovereignty, any particular country should ‘by right’ have a veto over the operations of these new entities (noting that ‘neither the various local authorities in the London Transport Board, nor the seven states concerned in the T.V.A.’ could make such a claim).27 Indeed, Mitrany questioned what he called ‘the habitual assumption … that international action must have some over-all political authority above it’ (his emphasis).28 He thought some ‘comprehensive authority’ – ‘hardly less than a world government’ – was ‘not now a practical possibility’29 and in any event would not be desirable even if it were. Rather, as Mitrany stressed, ‘it is the central view of the functional approach that such an authority is not essential for our greatest and real immediate needs. The several functions could be organised through the agreement, given specifically in each case, of the national governments chiefly concerned, with the grant of the requisite powers and resources.’30 Mitrany himself also recognised, however, the inherent limitations of any such enabling agreement, what rational-choice theorists would today call the problem of ‘incomplete contracting.’ The inevitability of gaps and ambiguities in the enabling agreement might allow the new supranational agents to pursue their own interests rather than those of their multiple principals (the so-called ‘agency cost problem,’ albeit on an international scale). Here a certain measure of ambivalence about technocratic autonomy clearly entered Mitrany’s thinking. Given the inevitability of gaps and ambiguities, Mitrany recognised that some form of political control would probably be required. As he put it: ‘If issues should arise in the functional system which would call either for some new departure or the interpretation of existing arrangements, that could only be done in council by all governments concerned.’31 He further contemplated the creation of ‘some body of a representative kind’ that ‘could discuss and ventilate general policies, as an expression of the mind and will of public opinion.’ But he added, in keeping with the technocratic understandings of the proper role of legislatures in the administrative state, that any such body ‘could not actually prescribe policy, or this might turn out to be at odds with the policy of governments.’32 Contrary to Mitrany’s claims, however, the ‘whole trend of modern government’ was clearly not exclusively in a functionalist direction, and ‘constitutional norms’ more than simply ‘practical requirements’ still mattered in the design of institutions. Other factors – politics, for example, manifest in contests over scarce resources and institutional advantages; or more generally political culture, manifest in different (and sincerely held) views over the Ibid, 35. Ibid, 48. 27 Ibid, 47. 28 Ibid, 45. 29 Ibid. 30 Ibid. 31 Ibid. 32 Ibid. On the changing understandings of the legislative function under the postwar constitutional settlement, see Lindseth (2010), 75–81; for more detail, see Lindseth (2004), pt. III. 25 26

334  Research handbook on the politics of constitutional law proper form of legitimate governance – still helped to shape institutional and policy outcomes. Indeed, as already noted, the New Deal legacy, like the entire legacy of the interwar period, was much more complex than Mitrany’s functionalist reading of it supposed, certainly with regard to political oversight. Rather than ‘simply stepping over’33 constitutional limitations in the face of crisis, constitutional resistance to Roosevelt’s efforts, as well as the inevitable process of constitutional negotiation that ensued, deeply shaped the New Deal institutional environment. These contests were sometimes of a purely a political nature – inter-branch struggles over scarce institutional advantages – but at other times they dealt with questions of principle – real differences over the meaning of legitimate governance in a modern industrial society.34 Landis himself had acknowledged as much in The Administrative Process, observing that any functional change in institutions still needed to ‘preserve those elements of responsibility and those conditions of balance that have distinguished Anglo-American government.’35 A kind of legal-cultural reconciliation was required, Landis seemed to suggest, between the constitutional values inherited from the past and the ‘exigencies of governance’ in the present.36

2.

THE ‘TECHNICAL’, THE ‘POLITICAL’, AND THE NEED FOR NATIONAL-EXECUTIVE OVERSIGHT

In the negotiations over European integration in the 1950s – beginning with the Treaty of Paris in 1951 and culminating with the Treaties of Rome in 195737 – a similar sort of reconciliation would be required. At the heart of integration was the tension between the functional demands for delegation of some measure of autonomous regulatory power to supranational bodies, on the one hand, and the continued recognition for some form of national oversight and control, on the other. The resulting political, legal, and institutional framework proved to be quite different from the functionalist vision of Mitrany in A Working Peace System, or the functionalist proposals of Monnet in the so-called Schuman Declaration in May 1950,38 which kicked off negotiations leading to the establishment of the European Coal and Steel Community (ECSC) in the Treaty of Paris. In this new framework, national executives would be repeatedly called upon to place their political weight, and more importantly their constitutional legitimacy as international representatives of their national communities, behind the seemingly ‘technical’ deals that were struck over economic substance. Indeed, integration would prove once again that, in an era of administrative governance, the line between the purportedly ‘political’ and

See n 20 and accompanying text. See e.g. ALA Schechter Poultry Corp v. United States, 295 US 495 (1935); for succinct summary of inter-branch conflicts during the New Deal, see Calabresi & Yoo (2008), 278–89. 35 Landis (1938), 1. 36 Ibid, 2. 37 Our principal concern here is with the Treaty of Rome establishing the European Economic Community. See Section 3 below. The second Treaty of Rome establishing the European Atomic Energy Community (Euratom) – not covered here – nonetheless operates within the same ‘administrative’ trajectory in the evolution of European integration discussed here. 38 Declaration of May 1950 (the ‘Schuman Declaration’) (https://​european​-union​.europa​.eu/​ principles​-countries​-history/​history​-eu/​1945​-59/​schuman​-declaration​-may​-1950​_en​#:​~:​text​=​The​ %20Schuman​%20Declaration​%20was​%20presented​,pool​%20coal​%20and​%20steel​%20production). 33 34

Transatlantic ‘administrative constitutionalism’  335 ‘technical’ realms was deeply blurred, and the felt need for political legitimation of even technical decision-making was much greater than functionalist theorists had supposed. Reflecting Monnet’s own largely functionalist mind-set, however, the only institution mentioned in the Schuman Declaration was an independent technocratic body, the so-called High Authority, a name intentionally evocative of administrative agencies on the New Deal model (like the Tennessee Valley Authority). Paul Reuter, a French law professor who was a member of Monnet’s drafting team, later acknowledged that the proposal for a High Authority stood ‘in a disquieting solitude.’39 According to Reuter, the High Authority’s independence ‘was in some sense a desperate solution,’ because there was ‘neither a European parliament, nor government, nor people’40 on which to build an integrated polity or market. Reuter argued that the only way ‘to build Europe without Europeans’ was ‘to address ourselves to independent personalities’41 whose decisions would then be binding on national governments. Reuter would later recall that he ‘knew a bit of the American system,’ the principal virtue of which in his view was how it conferred on ‘independent men’ the power to exercise a variety of functions, ‘be they ‘quasi-judicial,’ administrative, even economic … . When I proposed [this formula] to Monnet, using the American term ‘Authority,’ he accepted it immediately.’42 Thus, in the original French proposal the High Authority was to serve, in effect, as a kind of autonomous regulatory agency of an extraordinarily novel type, one that possessed normative power delegated from national parliaments but would otherwise be freed from having its decisions legitimised by subsequent national oversight (notably via the national executive). The original insistence of Monnet on an independent, supranational regulatory authority was among the major reasons for the British government’s refusal to pursue the negotiations on the terms proposed by the French government in May 1950.43 The United Kingdom’s refusal to participate, however, would prove ironic in many respects. British qualms over supranationalism in the ECSC were in fact shared not only by elements within the French government itself,44 but also, more importantly, by the Benelux governments (led by the Dutch).45 Although the Dutch 39 Reuter (1953). According to Frances Lynch: ‘It was Paul Reuter who [proposed] the form of a supranational High Authority whose decisions would be binding on governments.’ Lynch (1988), 120 (citing 81 AJ 152, Elaboration de la proposition du 9 mai 1950); see also Monnet (1978), 296–97. 40 Reuter (1953), 51–52. 41 Ibid, 51. 42 Reuter (1979), 67. Integration’s origins in models of national administrative governance were not exclusively American. The French model of administrative law and justice, and more particularly that of the Conseil d’Etat, also played a role in constructing the system of legal control of supranational action. For further discussion, see Horspool, Chapter 21 in this volume, more particularly Section 3. For further detail, see Lindseth (2010), 141. 43 One historian has referred to ‘a fundamental clash of assumptions between the British and the French,’ the former not opposed to a coal and steel community in principle but favoring only one based ‘on the principle of inter-governmental cooperation,’ whereas the later sought a ‘“supra-national” authority, the establishment of which would involve the surrender of sovereignty by the member states.’ Bullen (1988), 206. See also Bullen (1989), 326 (referring to one of the features of British policy as ‘the refusal to relinquish the sovereign authority of Parliament to supranational bodies … .’); as well as chapter 3 of Milward (2002). 44 See Lynch (1988), 123 (describing the views of the French finance minister, Petsche); Milward (2002), 76 (describing views of Petsche as well as those of Bidault, former foreign minister, and Mayer, justice minister); see also Parsons (2003), 61 (similarly negative views held by Buron, Economic Affairs; Louvel, Industry and Trade; and Bacon, Labor). 45 Rittberger (2005), 79.

336  Research handbook on the politics of constitutional law agreed to join the negotiations, they worked tirelessly – and with some success, as it turned out – to transform the ECSC into something much closer to the sort of intergovernmental body that Britain would have preferred.46 Perhaps most importantly, the Benelux countries agreed that together they would press for the establishment of both a Council of Ministers to oversee the High Authority’s activities in a political sense, as well as a Court of Justice to oversee its activities in a legal or judicial sense. A compromise on institutional questions subsequently emerged that aggregated the various elements of the Benelux and the French positions. On the one hand, several leading provisions of the Treaty of Paris of 1951, notably Article 9, would seem to reflect the French position that the sine qua non of supranationalism was the autonomy of the High Authority from national control.47 On the other hand, as Robert Schuman, the French Foreign Minister, would himself later recognise, one could not speak of the supranational independence of the High Authority under Article 9 without noting that it was exercised only ‘within the limits of the Treaty.’48 The most important limit involved the High Authority’s relationship with the ‘Special Council of Ministers,’ or simply the ‘Council,’ the body composed of ministerial representatives of national governments whose establishment Monnet originally opposed. Under the terms of Article 26, the Council of Ministers was formally speaking not to exercise any oversight or control function. Rather, the Council existed simply to ‘harmoniz[e] the action of the High Authority and that of the governments which are responsible for the general economic policies of their countries.’ Nevertheless, the more specific provisions of the treaty specified a whole range of domains in which the High Authority could not act without first consulting with, or, more importantly, gaining the agreement of, the Council of Ministers.49 Perhaps most importantly Article 95 of the Treaty of Paris provided that only the Council, acting by unanimity, could authorise the High Authority to act in ‘cases not expressly provided

According to Bullen, the adoption of the so-called ‘Dutch formula’ in fact ‘was considered as raising the possibility of Britain belatedly joining the negotiations on the basis that further dilutions of supra-nationalism would be possible.’ Bullen (1988), 208; but see Milward (2002), 64 (quoting Rogers Stevens, head of Economic Relations Department, to Ernest Bevin: ‘[The Dutch formula] is still far removed from any concept which ministers would be prepared to accept.’); see also ibid, 73 (criticising Edmund Dell, The Schuman Plan and British Abdication of Leadership in Europe (1995)). 47 Robert Schuman, ‘Preface’ to Reuter (1953), 7. Article 9 provided that the members of the High Authority were to ‘exercise their functions in complete independence, in the general interest of the Community’; they were not to ‘solicit nor accept instructions from any government or any organization.’ Not only did Article 9 require members of the High Authority to ‘abstain from all conduct incompatible with the supranational character of their functions,’ it added that each Member State was obligated ‘to respect this supranational character and not to seek to influence the members of the High Authority in the execution of their duties.’ Treaty of Paris, Article 9. 48 Schuman, in Reuter (1953), 7. 49 For an exhaustive analysis, see Prieur (1962), 73–81. For example, only the Council in the first instance, acting by unanimity, could establish consumption and allocation restrictions in times of serious shortages in production of coal, steel or related products (Treaty of Paris, Article 59(2)) and only where the Council could not decide did the High Authority gain the power to make these allocations (Article 59(3)). For other examples, see Article 54 (unanimity required to authorise ‘works or installations’ to increase production or lower production costs); Article 50(2) (two-thirds majority required to raise the one-percent levy on the production of coal and steel). And in the area of non-compliance by a Member State with its obligations under the treaty, only the Council, acting by a two-thirds majority, could authorise the High Authority to impose sanctions on the recalcitrant state. Treaty of Paris, Article 88. 46

Transatlantic ‘administrative constitutionalism’  337 for in this Treaty’ but which nevertheless appeared to the High Authority to be necessary to fulfill the goals of the common market.50 These were the so-called ‘spill-over’ issues. They were important because, as functionalist theory evolved into so-called ‘neofunctionalism’ over the course of the 1950s, the process of spill-over became central to theoretical predictions about the future evolution of integration. The leading neofunctionalists, like the German-American political scientist Ernst Haas, tried to present themselves as less normative and more positive in their approach than their functionalist predecessors.51 Neofunctionalists recognised that the initial decision to delegate was the by-product of a highly political rather than merely functional/technical process. But like the functionalists, neofunctionalists still saw the driving force behind any subsequent expansion of the supranational regulatory competences to be the neutral imperatives of functional problem-solving (the spill-over effect), as determined by lower-level technocrats, operating in relative autonomy from political control by national executives, and in alliance with sub-national economic interests committed to expanding integration. Article 95 of the Treaty of Paris ran directly contrary to this theory, vesting the power to control spill over in the national executives, sitting in the Council of Ministers. What the ECSC negotiations suggested was the fundamental impossibility of separating the purportedly ‘technical’ from the ‘political.’ The basic premise of the Benelux call for the establishment of a Council of Ministers was that technical decision-making at the Community level would inevitably impinge on political questions of values or the allocation of scarce resources, for which political control would be necessary.52 Organisational questions were thus intimately bound up with the intergovernmental effort ‘to determine as far as possible the extent and direction of national gain and loss before the High Authority began to function.’53 Given the legal framework within which the High Authority was supposed to operate, it is hardly surprising, as Alan Milward later concluded from his examination of the archival evidence, that it did not subsequently act ‘as a neutral functional regulator as [the neofunctionalists] claimed.’54 The organs of the ECSC arguably came into existence in the legal form they did ‘precisely because the issues involved could not be reduced to the merely functional level.’55

3.

TOWARD THE TREATY OF ROME: BALANCING SUPRANATIONAL AUTONOMY AND NATIONAL-EXECUTIVE CONTROL

The functionalist and neofunctionalist advocates of integration in the 1950s no doubt underestimated the genuinely political character of the ECSC’s regulatory activities and, therefore, the need for national governments to institute mechanisms of political supervision through the Council of Ministers. Nevertheless, the emphasis these theorists placed on the technical

52 53 54 55 50 51

Treaty of Paris, Article 95. See Haas (1958). Spierenburg & Poidevin (1993), 20. Milward (1984), 498. Milward (2000), 15; see also Alter & Steinberg (2007), 89. Milward (2000), 15.

338  Research handbook on the politics of constitutional law character of the Community as primarily a problem-solving entity corresponded to reality in at least one important sense: In the coal and steel context, precisely because it was broadly perceived to involve regulatory issues of a largely technical or functional nature, supranational delegation was less politically problematic, requiring little or no parliamentary involvement. Although knowledgeable insiders recognised otherwise – as the detailed provisions of the Treaty of Paris suggested – this seemingly technical character of coal and steel regulation helped to neutralise political opposition to the adoption of the Treaty of Paris when it was presented to national parliaments.56 The same sort of stratagem was unavailable, of course, once the process of European integration shifted from such a narrow and seemingly technical realm to one that went to the very heart of the nation-state’s traditional political responsibilities: national defence and control of the armed forces. The French proposal in the fall of 1950 for a European Defense Community (EDC), culminating in the signing of the proposed EDC Treaty in May 1952, quickly revealed the limits of political support for supranational delegation. Given the highly political nature of national defence, the measure of technocratic autonomy that the High Authority enjoyed at the head of the ECSC – and perhaps even more importantly, the supranational character of that technocratic autonomy – could not be transferred to the EDC equivalent (the ‘Commissariat’). This was true even if the Commissariat was supposed to operate under the supervision of a Council of Ministers, at least not without giving rise to profound political misgivings at the national level. The rejection of the EDC by the French National Assembly in 1954 would directly influence both the substantive scope and institutional form of the so-called ‘relaunch’ of European integration in the mid-1950s, after the collapse of the EDC. The Treaty of Rome of 1957, establishing the European Economic Community (EEC), would retain the quadripartite organisational form of the ECSC (a national-executive Council of Ministers, a supranational technocratic body now called the ‘European Commission,’ a parliamentary ‘Assembly,’ and a Court of Justice). But there would be one major substantive difference between the institutional structures of the new EEC and the old ECSC: The legal balance of power under the EEC would shift formally and decisively toward the Council of Ministers, which gained the final say in most aspects of legislative norm-production at the Community level. The success of the negotiations leading to the Treaty of Rome thus would turn not merely on its economic merits; rather, it would also turn on the conscious effort on the part of key political actors to manage the entire institutional question in the direction of national executive control and strictly limited supranational technocratic autonomy. Throughout this process, the notion of supranationalism as a federal constitutionalist ideal would be studiously avoided,57 in favour of an even more functional supranationalism that accepted a measure of autono56 In the debate over the Treaty of Paris in the French National Assembly, for example, a Gaullist deputy complained that French sovereignty was being ‘abandon[ed] … to a stateless and uncontrolled technocracy.’ Jacques Soustelle, Journal officiel, Débats parlementaires, Assemblée nationale 8881 (Dec. 6, 1951). However, a centre-right supporter of the ECSC could offer the more comforting argument that the High Authority was ‘merely the organ for the administration of common rules,’ with delegated normative powers subject to the detailed and precise terms of the treaty. Alfred Coste-Floret, ibid, 8854. Outside of those strictly delimited and largely technical realms, Coste-Floret implied, national governments and parliaments retained the full prerogatives of sovereignty. For a discussion of the parliamentary debates, see Mason (1955), 22–23. 57 Gillingham (2003), 44, 49, quoting Marjolin (1983).

Transatlantic ‘administrative constitutionalism’  339 mous authority at the Community level but only to police the compliance of Member States with their agreements over economic substance. Otherwise, functional supranationalism was designed to preserve the freedom of action of national executives that had been so strenuously achieved at the national level in the constitutional stabilisation of domestic governance in the postwar decades. In this sense, the Member States recognised that certain commitment institutions – the European Commission, the Court of Justice – would be instrumentally necessary, not as the foundation of a future federal Europe, but as guarantors of the narrowly-defined policy goals of economic and market integration set forth in the Treaty of Rome. This reliance on a functionalist, instrumental supranationalism (cloaked as much as possible in the guise of political intergovernmentalism) manifested itself in the earliest stages of the relaunch. In the joint memorandum calling for the establishment of a customs union that the Benelux countries prepared (in advance of the conference of ECSC foreign ministers in June 1955 in Messina, Italy), no mention was made of the idea of supranationalism or of a High Authority. Rather, the memorandum spoke only of ‘common authorities’ or an ‘organism,’ with the remaining institutional questions to be left to the intergovernmental conference responsible for drafting the treaty.58 The purpose of such vagueness was to avoid ‘awaken[ing] the strong anti-supranational sentiments in France and elsewhere,’ as well as to facilitate ‘the adherence of the other governments to the basic idea of organising a conference on the issues raised by the Benelux.’59 At the Messina meeting itself, rather than a decision in favour of an intergovernmental conference directly, the ECSC foreign ministers decided first to refer the Benelux proposal for further study to an ad hoc interministerial committee of high-level officials, which Paul-Henri Spaak, the Belgian Foreign Minister, would lead. Although the Spaak Committee engaged in sensitive political discussions of the substantive and institutional framework for future intergovernmental negotiations, the committee’s seemingly technocratic composition allowed it to be portrayed domestically (particularly in France) as primarily an ‘expert’ body.60 The report produced by the committee61 also followed a similarly functionalist/technocratic strategy on institutional questions, placing emphasis on substantive policy goals (like a customs union) and only then making mention of the new Community institutions ‘of which the competences will be clearly defined.’62 Like the Benelux memorandum, the Spaak Report studiously avoided even mentioning the idea of supranationalism or a High Authority, opting instead for the name ‘European Commission,’ an even more functionalist and administrative sounding term. In the determination of what the competences of the organs of the new common market should be, the Spaak Report adopted the following basic distinction: ‘questions of general economic policy’ were to ‘remain the reserved domain of the governments’ of the Member States, whereas ‘problems’ associated with the ‘functioning’ of the common market would to be delegated to the See Harryvan & Kersten (1989), 150–51, citing BZ, II, 913.100, no. 139 (‘Memorandum des Pays Benelux aux Six Pays de la C.E.C.A.’). 59 Harryvan & Kersten (1989), 150–51. cf. Pescatore (1981), 165 (speaking of the desire of the negotiators at the future intergovernmental conference ‘to appease the demons which [the EDC] had aroused’). 60 Moravcsik (1998), 116. 61 Comité intergouvernemental créé par la Conférence de Messine, Rapport des Chefs de Délégation aux Ministres des Affaires Etrangères (Brussels, 21 April 1956) (hereinafter ‘Spaak Report’). 62 Ibid, 23. 58

340  Research handbook on the politics of constitutional law Community level.63 The report further asserted that, even though most questions of general law and policy would remain the province of national institutions, certain of these laws and policies would nevertheless have ‘such a decisive impact on the functioning of the market’ that the creation of some kind of ‘common institution’ would be warranted to make proposals to national governments (via the Council of Ministers) to adopt measures to ‘coordinate’ them. Indeed, such coordination could be ‘so indispensable to the functioning and the development of the market’ that the treaty might have to dispense with the rule of unanimity in the Council of Ministers ‘in strictly enumerated cases or after the passage of a determinate period.’64 The Spaak Report quite rightly suggested, in other words, that functional questions could not be easily separated from political ones, and that the construction of a common market was not simply a matter of the straightforward creation of a customs union or other forms of sectoral integration. Rather, it would require significant harmonisation among national laws and policies in related domains. Although no autonomous supranational body should have the right to impose such harmonisation, the report asserted that such a body – the Commission – should still have the power of initiative at least to propose it – the infamous ‘Community model.’65 Moreover, the Commission’s harmonisation proposals should not in every case require the unanimous support of all Member State governments in the Council of Ministers. Although unanimity would remain ‘the rule,’66 the report stated that in certain cases the Council of Ministers should be able to adopt harmonisation measures through qualified-majority voting, in the over-all interest of achieving a functioning common market. The institutional principles enunciated by the Spaak Report well anticipated the central problems that would confront the negotiators of the Treaty of Rome over the course of the next year. On the one hand, the Spaak Report’s overall institutional discussion (which was actually quite limited) adhered closely to functionalist language in describing the Commission’s responsibilities.67 On the other hand, it also made quite clear that the authority of the Commission under the Community model would inevitably overlap to a great degree with political questions close to the core responsibilities of the Member States. Moreover, that model required a dramatically augmented role for national executives via the Council of Ministers, in order to distinguish itself from the institutional system of the ECSC. This did not mean, however, that the effort to strike the right balance in the treaty between the Council’s and Commission’s relative functions would be easy. The task was given over to a group of nationally designated legal experts – the groupe juridique – which was responsible for drafting the institutional and legal provisions in the Treaties of Rome.68 The legal group

Ibid, 24. Ibid. 65 See generally Parsons (2003), 9 (describing the institutionalisation of the ‘community model’). 66 Spaak Report, see above n 61 at 25. 67 The report, for example, spoke of the Commission primarily ‘administering the treaty and overseeing the functioning and the development of the common market.’ Ibid. 68 The major questions of policy were the responsibility of the other two main negotiating groups, for the common market and atomic affairs respectively. The legal group was assembled originally as a drafting group (groupe de rédaction) responsible for putting into legal forms the agreements over political and economic substance made by the other groups. It took on, however, a key role in the actual negotiation of the institutional provisions. See generally Pescatore (1981); see also Boerger-De Smedt (2012). The deference that the political negotiators gave to the groupe juridique on institutional questions (its proposals, always presented unanimously, were never rejected) was arguably a harbinger of the sort 63 64

Transatlantic ‘administrative constitutionalism’  341 clearly recognised, based on the political decisions made at higher levels, ‘that the central institution would henceforth be the Council, in the hands of which would be largely concentrated the political power of decision, as well as the legislative function.’69 Nevertheless, in its capacity as principal drafter of the institutional provisions, the legal negotiators paid a great deal of attention to ‘the articulation between the right of initiative of the Commission and the right of decision of the Council.’70 Given the ultimate decisional power in the Council, the groupe juridique inserted a provision designed to protect, at least, the Commission’s unfettered discretion in making legislative proposals.71 Although largely ignored at the time, these decisions would ultimately prove controversial, particularly in France after de Gaulle’s return to power in 1958. Gaullists would later maintain that the institutional weakness of the French executive under the Fourth Republic undermined its capacity to negotiate a treaty sufficiently respectful of France’s sovereign prerogatives (which de Gaulle of course equated with national-executive control over supranational policy decisions, just as in the administrative state).

4.

CONSOLIDATING NATIONAL-EXECUTIVE PREEMINENCE: FROM THE LUXEMBOURG COMPROMISE TO THE ESTABLISHMENT OF THE EUROPEAN COUNCIL

When de Gaulle assumed the presidency of the newly established Fifth Republic in 1959, he understood the economic benefits of integration, most importantly the Europeanisation of agricultural protection. But he was also deeply hostile to some of the more supranational elements of the Treaty of Rome in other domains. Particularly troublesome was the progressive shift to qualified-majority voting in the Council over the course of the second and third stages of the ‘transition period’ (lasting 12 years from the entry into force of the treaty, divided equally into three parts). De Gaulle would later assert that, to accept majority voting after ‘we had decided to take destiny into our own hands’ at home in 1958, would leave France ‘exposed to the possibility of being overruled in any economic matter whatsoever, and therefore in social and sometimes political matters’ as well.72 De Gaulle was nevertheless willing to disguise this hostility when open expression did not serve French national interests. De Gaulle held off his battle over qualified-majority voting until the final year of the second stage, in 1965. By then France had secured its principal policy goal: generous, Community-based support for French agriculture under the terms of the common agricultural policy (CAP). De Gaulle had long recognised that the move to qualified-majority voting in the third stage would greatly strengthen the position of the

of deference that would be characteristic of ‘legal’ neofunctionalism that took hold in integration in the 1960s. See generally Burley & Mattli (1993). 69 Pescatore (1981), 168. 70 Ibid, 169. 71 Article 149 thus provided that, as long as the Council had not acted, the Commission remained free to alter its proposal at any time. By contrast, for the Council to amend a proposal of the Commission, Article 149 required unanimity of the Member State representatives. In this respect, the legal group borrowed from the model established by the ECSC Treaty, in which a Council unanimity requirement was actually often used to augment the normative autonomy of the Commission (although the Council still retained the ultimate power of decision in most cases, in striking contrast to the Treaty of Paris). 72 Press Conference, 9 September 1965 (quoted in Teasdale (1993), 568).

342  Research handbook on the politics of constitutional law Commission – ‘this embryonic technocracy, for the most part foreign’73 – which would no longer need to satisfy each and every Member State in order to see its legislative proposals adopted in the Council.74 To block this shift, the French government announced in mid-1965 that it would boycott all meetings of the Council, in a policy famously known as the chaise vide, or ‘empty chair,’ until its concerns over qualified-majority voting had been properly addressed. The ‘empty chair’ crisis was not resolved until January 1966, one month after de Gaulle prevailed over François Mitterrand in the French presidential election in December 1965. In what came to be known as the Luxembourg Compromise, France secured the right for any Member State to demand a Council decision by unanimity when it believed that ‘a very important national interest’ was at stake.75 The Luxembourg Compromise, however, arguably only codified the traditional practice of consensus politics in the Council, a strong norm to be sure, but not the révision d’ensemble (‘complete overhaul’) of the qualified-majority voting provisions in the treaty that was the stated goal of the French government.76 As a matter of both law and subsequent practice within the Council, the Luxembourg Compromise did not lay the foundations for a ‘veto culture’ as is often supposed,77 much less a ‘second European constitution’ apart from the original Treaty of Rome itself.78 The events of 1965–66 simply marked the reassertion of an older set of ground rules for European integration which had manifested themselves first in the negotiations of the Treaty of Paris and then in actual operation of the ECSC over the course of the 1950s: Community norm-production needed to be mediated in some way through national executives, just as in the administrative state. The issue driving the empty chair crisis was thus not whether the policy agenda would be managed by the Member States (all Member States believed it should), but how it would be managed – whether unilaterally by a single Member State exercising a veto under a unanimity regime, or collectively by the Council using consensus politics, albeit in the shadow of qualified-majority voting.79 This outcome nevertheless still defied the predictions of the neofunctionalists, who had foreseen a Commission-led, technocratic process of ‘spill over’ from one domain to the next, inexorably driving the process of European integration forward beyond its original core mandate.80 The emergent structure of shared national executive oversight via the Council – which ‘corresponded neither to the more ambitious federal dreams nor Ibid. So long as Member State amendments to a Commission proposal could only be made upon a unanimous vote under Article 149 (discussed above in n 71), the Commission would enjoy an effective veto over Member State changes, ‘unless by some extraordinary chance, the six states were unanimous in formulating an amendment.’ Press Conference, 9 September 1965, see above n 72. Thus, de Gaulle sought to exploit the crisis to remove ‘certain mistakes and ambiguities in the treaties,’ notably the shift to qualified-majority voting at the beginning of the third stage. Ibid. 75 See Bulletin of the European Communities 8–10 (March 1966). 76 Palayret (2006), 63. See also Ziller (2017). 77 Teasdale (1993), 570. For a more conventional reading of the Luxembourg Compromise, see the contribution of Veraldi and Hassall, Chapter 20 in this volume, more particularly Section 2. 78 Cassese & della Cananea (1992), 86. 79 cf. Ziller (2017) 433 (‘if the word ‘defiance’ is to be used to characterise the Empty Chair crisis, it must be understood as ‘defiance’ of the EEC Commission … and as ‘defiance’ of other governments’). 80 This contradiction is something that neofunctionalist theorists themselves were compelled to recognise. See e.g. Haas (1971), 3. 73 74

Transatlantic ‘administrative constitutionalism’  343 to the pure intergovernmentalism of the French President’81 – was in fact deeply tied to the diffusion and fragmentation of normative power in an era of administrative governance. The culmination of this institutional reinforcement of national-executive oversight at the supranational level would occur just under 10 years later, in 1974, in a development with significant long-term effects for the political life of European integration. At the initiative of French President Valéry Giscard d’Estaing and German Chancellor Helmut Schmidt, the heads of state and government of the Member States formed themselves into the ‘European Council’ – a body initially outside the confines of treaty law82 – to serve as a forum for the chief executives of the Member States to decide on the future direction of integration policy. Assembling in (then) semi-annual summit meetings, the purpose of the European Council was to provide political guidance to Europe’s supranational regulatory process. In its seemingly blatant intergovernmentalism, the European Council appeared to federalists and other pro-Europeans as a fundamental reversal of the progress toward integration. This view assumed, however, that the most important measure of such progress was the degree of supranational normative autonomy in Community decision-making. The more persuasive historical interpretation is that, ‘rather than reversing the process of European integration,’ the establishment of the Council ‘actually signifie[d] a wish to extend Community decision-making to new areas in response to changes in national policy objectives arising from the fundamental change in economic circumstances of the western European countries after 1974.’83 The establishment of the European Council suggested that, for the process of European integration to have any hope of continued development with the end of the three decades of steady postwar expansion (the ‘trentes glorieuses’), clear political backing by the national chief executives would be needed. Technocratic policy development in the Commission (the ‘Community model’), even under ministerial supervision in the Council of Ministers, would not be enough; some form of leadership by heads of state or government was required. The long-term consequences of the establishment of the European Council would be profound, despite the shift to qualified-majority voting in the Council of Ministers in an increasing number of domains, along with an increasing role of the European Parliament (EP) over the subsequent decades. The meetings of the European Council have become the political focal points of the EU’s political calendar. As Jacques Delors, Commission President from 1985 to 1995, wrote in the early 2000s, ‘the European Council plays – and should continue to play – an irreplaceable role in the recurrent efforts to develop a politically integrated Europe.’84 As two leading integration scholars put it around the same time, ‘the European Council has, for over a quarter of a century, fixed the agenda of the Union, especially as the EU has moved beyond the specific tasks laid down in the original treaties. Nothing decisive has been initiated without its approval.’85 Indeed, after its formalisation in the Treaty of Lisbon in 2009, Ludlow (2001), 257. The European Council would not be formally established until the Single European Act of 1986. 83 Milward & Sørensen (1993), 24–25. 84 Jacques Delors, Foreword to Schoutheete and Wallace (2002). 85 Schoutheete & Wallace (2002), 10. For a discussion of the European Council in providing the necessary ‘political will’ to construct the internal market over the course of the 1980s (reflected most importantly in the adoption of Single European Act (SEA) of 1986), see Veraldi and Hassall, Chapter 20 in this volume, more particularly Section 3. Confirming this view is Bugaric, Chapter 22 in this volume, more specifically Section 3, discussing national-executive leadership in conjunction with ECJ case-law 81 82

344  Research handbook on the politics of constitutional law the European Council emerged as the EU’s ‘principal decisionmaker’ in the context of the Eurozone Crisis, eclipsing the Commission, which ‘no longer [serves] as agenda setter and initiator of legislation.’86

5.

THE PERSISTENCE OF NATIONALLY-MEDIATED LEGITIMATION IN EU GOVERNANCE

Executive oversight and direction was of course not the sole means of channelling national democratic and constitutional legitimacy to the supranational level; forms of national judicial and legislative oversight also played a role, albeit more marginally but still in keeping with the requirements of ‘mediated legitimacy’ in the postwar constitutional settlement of administrative governance.87 Much of this nationally-mediated legitimation, however, would be hidden behind by more celebrated efforts to translate a ‘model of representative, parliamentary democracy’ into workable supranational form in the EU88 – culminating again in the Treaty of Lisbon of 2009, which made the directly-elected European Parliament a co-equal legislator with the Council under what is now called the ‘ordinary legislative procedure.’89 This electoral component of EU norm-production via the EP is no doubt a ‘good thing,’ and it is also something that many European lawyers, judges and law professors have celebrated as a means of advancing the EU’s own, autonomous democratic and constitutional legitimacy. But sadly, this electoral dimension of European governance via the EP has ultimately been unable to alter the fundamentally technocratic character of European integration.90 Despite the ‘as if’-constitutional vocabulary often used by legal elites to describe EU governance,91 that governance has never attained autonomous democratic and constitutional legitimacy of its own; rather, as one commentator has rightly observed, it has remained ‘parasitic’ on the more robust democratic and constitutional legitimacy on the national level.92 And in keeping with the postwar constitutional settlement of administrative governance, the principal (though hardly exclusive) means of channelling democratic and constitutional legitimacy to the supranational technocracy has been via national executive oversight. As the EU entered its decade of ‘polycrisis’ in the 2010s,93 the central role of national executives, assembled in the European Council, became even more apparent in supranational in the shift from ‘embedded liberalism to embedded neoliberalism’ in the construction of the Economic and Monetary Union (EMU) from the 1990s onward. 86 Stefano Micossi, The Eurozone Crisis and EU Institutional Change: A New CEPR Policy Insight, VoxEU.org (15 April 2013) (http://​www​.voxeu​.org/​article/​eurozone​-crisis​-and​-eu​-institutional​-change​ -new​-cepr​-policy​-insight). 87 See above nn 7–8 and accompanying text. 88 Rittberger (2005), 199. 89 See Article 294 of the Treaty on the Functioning of the European Union. 90 cf. Stie (2012). For an earlier formulation of this administrative/technocratic perspective, see Lindseth (1999). See also, more recently with regard to the EP, Lindseth (2021). 91 See Lindseth (2016). 92 Tuori (2015), 3–4. 93 Former European Commission President Jean-Claude Juncker coined the term ‘polycrisis’ to refer to the confluence of multiple, mutually reinforcing challenges facing the EU, from ‘the worst economic, financial and social crisis since World War II’ through ‘the security threats in our neighborhood and at home, to the refugee crisis, and to the UK referendum [i.e., Brexit]’, that ‘feed each other, creating

Transatlantic ‘administrative constitutionalism’  345 governance. The crisis of the euro, followed by the coronavirus crisis, once again served to demonstrate, contrary to both functionalist and neofunctionalist hopes, that there is ‘a line in the sand beyond which only governments can set priorities and act.’94 This line involved, most importantly, the mobilisation of fiscal resources on a macroeconomically salient scale.95 The Commission’s inability to move beyond its subordinate role to the Council in this and other crucial regards once again demonstrated the extent to which much the postwar functionalists had miscalculated in believing that a supranational technocratic body could effectively operate without ‘some over-all political authority above it,’ as David Mitrany had hoped for such organisations.96 This hearkened back to the fate of the Organization for Economic Co-operation and Development (OECD), which loomed in the background of institutional politics in the European Community in the early decades. As a purely technocratic body, the OECD had evolved into nothing more than ‘a forum for registering international agreements made elsewhere, increasingly of a minor kind.’97 In contrast with the OECD, the European Community emerged as it did – i.e., with national executives providing essential political leadership within the Council – as ‘a total rejection of integration within [the] particular political framework’ exemplified by the OECD.98 Integration has required, and indeed still requires, national executive leadership. Should this outcome surprise us? It should not if we recognise that, over the course of the twentieth century (including during the emergency that confronted Roosevelt under the New Deal), the forms of administrative governance – of which European integration is a particular, supranationalised type – have never been solely determined by functional factors, contrary to the hopes of a mid-century theorist like David Mitrany or a political operator like Jean Monnet. We now know from historical experience that the question of optimal institutional design in an era of administrative governance – i.e., the quest for balance between administrative autonomy and political oversight – is deeply bound up with struggles over institutional control and conceptions of legitimacy.99 The struggle to find a balance between supranational autonomy and national oversight, one could say, is an analogue to the formalist-functionalist debate in United States public law – though, as Peter Strauss long ago taught us, this debate in fact involves a ‘foolish inconsistency.’100 In reality, the historical problem has been to find ways of allowing functional autonomy to evolve (within limits) while also reconciling that evolution to constitutional forms. Or, as Strauss put it more eloquently, it has been a question of ‘maintaining the connection between each of the [constitutional] institutions and the paradigmatic function which it alone is empowered to serve, while also retaining a grasp on [administrative governance] as a whole that respects our commitments to the control of law.’101

a sense of doubt and uncertainty in the minds of our people.’ See Jean-Claude Juncker, ‘Speech at the Annual General Meeting of the Hellenic Federation of Enterprises (SEV)’, Athens, 21 June 2016, available at  https://​ec​.europa​.eu/​commission/​presscorner/​detail/​de/​SPEECH​_16​_2293. 94 Pisani-Ferry (2013). 95 Lindseth & Cristina Fasone (2022). 96 See n 28 above and accompanying text. 97 Milward (1984), 207 (referring to the OECD’s forerunner, the OEEC). 98 Ibid, 209. 99 See generally Lindseth (2010); Lindseth (2004). 100 Strauss (1987). 101 Ibid, 493.

346  Research handbook on the politics of constitutional law Despite giving national executives a key role, the reliance of administrative governance on ‘the control of law’ (not to mention its more general diffusion and fragmentation of normative power) has made administrative governance anathema to modern-day populists on both sides of the Atlantic.102 This, too, should not surprise us. When would-be autocrats target their ire at ‘Washington’ or ‘Brussels,’ they are in fact expressing the same animus toward institutional structures that counter their irrationalism and impede their paths to unchecked power.103 There is in fact a deep historical lineage to these sorts of attacks.104 The challenge of the postwar constitutional settlement was in fact to find a way to make administrative governance work within the context of liberal-democratic institutions, to surmount what none other than Carl Schmitt had claimed was ‘insurmountable,’ thus necessitating an unchecked executive dictatorship.105 This longstanding populist and autocratic animus should simply remind us of the extent to which a more balanced form of administrative governance has been a key feature of liberal democracy over the last century. The crucial innovation has been the creation of relatively autonomous institutional capacities to address pressing regulatory challenges while still offering some means of ‘maintaining the connection’ to democratic and constitutional legitimacy, including subjecting administrative power to ‘the control of law.’ Whether this constitutional settlement of administrative governance can endure further populist attacks or other crises over the coming years remains to be seen. There are, as of this writing (Spring 2022), disturbing signs to the contrary on both sides of the Atlantic. But there can be no doubt that the effort to reconcile technocracy and democracy has been a great achievement of transatlantic ‘administrative constitutionalism’ as well as essential to its survival over the long term.

REFERENCES Alter, Karen J. & David Steinberg in Sophie Meunier & Kathleen R. McNamara (eds) The Theory and Reality of the European Coal and Steel Community, in Making History: European Integration and Institutional Change at Fifty 89 (Oxford University Press, 2007). Boerger-De Smedt, Anne. (2012). ‘Negotiating the Foundations of European Law, 1950–57: The Legal History of the Treaties of Paris and Rome,’ Contemporary European History 21: 339–56. Bullen, Roger. ‘Britain and “Europe” 1950–1957’ in Enrico Serra (ed) Il Rilancio dell’Europa e i Trattiti di Roma 326 (Nomos, 1989). Bullen, Roger. ‘The British Government and the Schuman Plan May 1950-March 1951’ in Klaus Schwabe (ed) Die Anfänge des Schuman-Plans 1950/51 (Nomos, 1988). Burley, Anne-Marie & Walter Mattli. (1993). ‘Europe before the Court: A Political Theory of Legal Integration,’ International Organization 47: 41–76. Calabresi, Steven G. & Christopher S. Yoo. The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press, 2008).

102 And sometimes the same populist actors try to operate on both sides of the Atlantic as well. See e.g. Rucker Costa (2017); and ‘Bannon Plan for Europe Populist “Supergroup” Sparks Alarm,’ BBC News, 23 July 2018, sec. Europe, https://​www​.bbc​.co​.uk/​news/​world​-europe​-44926417. 103 For further discussion, see Lindseth (2020), 506, and Lindseth (2021), 304–05. For a sense of the anti-European variant of this line of populist thinking, with particular focus on Poland, see Blokker, Chapter 34 in this volume. 104 See e.g. Schmitt (1936). 105 Ibid.

Transatlantic ‘administrative constitutionalism’  347 Cassese, Sabino & Giacinto della Cananea. ‘The Commission of the European Economic Community: The Administrative Ramifications of Its Political Development (1957–1967)’ in Erk Volkmar Heyen (ed) Die Anfänge der Verwaltung der Europäischen Gemeinschaft (Nomos, 1992). Eskridge, William N. & John A. Ferejohn. A Republic of Statutes: The New American Constitution (Yale University Press, 2010). Fisher, Elizabeth C. Risk Regulation and Administrative Constitutionalism (Hart Publishing, 2007). Fransen, Frederic J. The Supranational Politics of Jean Monnet: Ideas and Origins of the European Community (Greenwood Press, 2001). Gillingham, John. Coal, Steel, and the Rebirth of Europe, 1945–1955: The Germans and French from Ruhr Conflict to Economic Community (Cambridge University Press, 1991). Gillingham, John. European Integration, 1950–2003: Superstate or New Market Economy? (Cambridge University Press, 2003). Griffiths, Martin. Fifty Key Thinkers in International Relations (Routledge, 1999). Haas, Ernst B. ‘The Study of Regional Integration: Reflections on the Joy and Anguish of Pretheorizing,’ in Leon N. Lindberg & Stuart A. Scheingold (eds) Regional Integration: Theory and Research 3 (Harvard University Press, 1971). Haas, Ernst B. The Uniting of Europe: Political, Social, and Economic Forces, 1950–1957 (Stanford University Press, 1958). Harryvan, Anjo G. & Albert E. Kersten, ‘The Netherlands, Benelux and the Relance Européenne 1954–1955’ in Enrico Serra (ed) Il Rilancio dell’Europa e i Trattiti di Roma 326 (Nomos, 1989). Hartmann, Moritz. (2013). ‘Administrative Constitutionalism and the Political Union,’ German Law Journal 14: 695–714 Horton, Scott. Six Questions for Steven Calabresi, Author of The Unitary Executive, No Comment Blog (30 September 2008) (https://​harpers​.org/​2008/​09/​six​-questions​-for​-steven​-calabresi​-author​-of​-​_the​ -unitary​-executive​_/​). Isiksel, Turkuler. Europe’s Functional Constitution: A Theory of Constitutionalism Beyond the State (Oxford University Press, 2016). Kessler, Jeremy K. (2014). ‘The Administrative Origins of Modern Civil Liberties Law,’ Colum. L. Rev. 114: 1083–166. Landis, James. The Administrative Process (Yale University Press, 1938). Lee, Sophia Z. ‘From the History to the Theory of Administrative Constitutionalism’ in Nicholas R. Parrillo (ed) Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw (Cambridge University Press, 2017). Lee, Sophia Z. (2010). ‘Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present,’ Virginia Law Review 96: 799–886. Lindseth, Peter & Cristina Fasone. ‘The Eurozone Crisis, the Coronavirus Response, and the Limits of European Economic Governance’ in Guillaume Grégoire & Xavier Miny (eds) The Idea of Economic Constitution in Europe: Genealogy and Overview (Brill, 2022). Lindseth, Peter L. ‘Between the “Real” and the “Right”: Explorations Along the Institutional-Constitutional Frontier’ in Maurice Adams, Ernst Hirsch Ballin, & Anne Meuwese (eds) Constitutionalism and the Rule of Law: Bridging Idealism and Realism (Cambridge University Press, 2017). Lindseth, Peter L. (1999). ‘Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community,’ Columbia Law Review 99: 628–738. Lindseth, Peter L. ‘Executives, Legislatures, and the Semantics of EU Public Law: A Pandemic-Inflected Perspective’ in Diane Fromage & Anna Herranz-Surrallés (eds) Executive-Legislative (Im)balance in the European Union (Hart, 2021). Lindseth, Peter L. Power and Legitimacy: Reconciling Europe and the Nation-State (Oxford University Press, 2010). Lindseth, Peter L. ‘The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance’ in Francesca Bignami (ed) EU Law in Populist Times: Crises and Prospects 506 (Cambridge University Press, 2020). Lindseth, Peter L. (2004). ‘The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and France, 1920s–1950s,’ Yale Law Journal 113: 1341–1415. Lindseth, Peter L. (2016). ‘The Perils of “As If” European Constitutionalism,’ European Law Journal 22: 696–718.

348  Research handbook on the politics of constitutional law Loughlin, Martin. (2005). ‘The Functionalist Style in Public Law,’ University of Toronto Law Journal 55: 361–403. Ludlow, N. Piers. ‘The Eclipse of the Extremes: Demythologising the Luxembourg Compromise’ in Wilfried Loth (ed) Crises and Compromises: The European Project 1963–1969 (Nomos, 2001). Lynch, Frances. The ‘Role of Jean Monnet in Setting up the European Coal and Steel Community’ in Klaus Schwabe (ed) Die Anfänge des Schuman-Plans 1950/51 (Nomos, 1988). Marjolin, Robert. Architect of European Unity: Memoirs, 1911–1986 (Weidenfeld & Nicholson, 1983). Mason, Henry L. The European Coal and Steel Community: Experiment in Supranationalism (Nijhoff, 1955). Metzger, Gillian E. (2013). ‘Administrative Constitutionalism,’ Texas Law Review 91: 1897–1935. Micossi, Stefano. ‘The Eurozone Crisis and EU Institutional Change: A New CEPR Policy Insight,’ (VoxEU.org, 15 April 2013) http://​www​.voxeu​.org/​article/​eurozone​-crisis​-and​-eu​-institutional​ -change​-new​-cepr​-policy​-insight. Milward, Alan S. & Vibeke Sørensen, ‘Interdependence or Integration? A National Choice’ in Alan S. Milward et al., The Frontier of National Sovereignty: History and Theory 1945–1992 (Routledge, 1993). Milward, Alan S. The European Rescue of the Nation-State, 2nd edition (Routledge, 2000) 15. Milward, Alan S. The Reconstruction of Western Europe, 1945–51 (Routledge, 1984). Milward, Alan S. The United Kingdom and the European Community: The Rise and Fall of a National Strategy, 1945–1963 (Frank Cass, 2002). Mitrany, David. A Working Peace System: An Argument for the Functional Development of International Organization, 4th edition (1946, National Peace Council, originally published 1943). Monnet, Jean in Richard Mayne trans. Memoirs (Collins, 1978). Moravcsik, Andrew. The Choice for Europe: Social Purpose and State Power from Messina to Maastricht (Cornell University Press, 1998). Palayret, Jean-Marie. ‘De Gaulle Challenges the Community: France, the Empty Chair Crisis and the Luxembourg Compromise’ in Jean-Marie Palayret et al. (eds) Visions, Votes, and Vetoes: The Empty Chair Crisis and the Luxembourg Compromise Forty Years On (P.I.E. Peter Lang, 2006) 63. Parsons, Craig. A Certain Idea of Europe (Cornell University Press, 2003). Pescatore, Pierre. (1981). ‘Les travaux du “groupe juridique” dans les négociation des Traités de Rome,’ Studia Diplomatica 34: 165. Pisani-Ferry, Jean. ‘Whose Economic Reform?,’ (Project Syndicate, 2013) http://​www​.project​-syndicate​ .org/​commentary/​the​-purpose​-and​-strategy​-of​-structural​-reofrm​-by​-jean​-pisani​-ferry. Prieur, Raymond. La Communauté européenne du charbon et de l’acier: Activité et évolution (Éditions Montchrestien, 1962). Reuter, Paul. ‘Aux Origines du Plan Schuman,’ in Pierre-Henri Teitgen (ed) 2 Mélanges Fernand Dehousse 67 (F. Nathan, 1979). Reuter, Paul. La Communauté européenne du charbon et de l’acier (Librairie générale de droit et de jurisprudence, 1953). Rittberger, Berthold. Building Europe’s Parliament: Democratic Representation Beyond the Nation-State (Oxford University Press, 2005). Rucker, Philip & Robert Costa. ‘Bannon Vows a Daily Fight for “Deconstruction of the Administrative State,”’ Washington Post (23 February 2017), https://​www​.washingtonpost​.com/​politics/​top​-wh​ -strategist​-vows​-a​-daily​-fight​-for​-deconstruction​-of​-the​-administrative​-state/​2017/​02/​23/​03f6b8da​ -f9ea​-11e6​-bf01​-d47f8cf9b643​_story​.html. Schmitt, Carl. (1936). ‘Vergleichender Überblick über die neueste Entwicklung des Problems der gesetzgeberischen Ermächtigungen (Legislative Delegationen),’ Zeitschrift für ausländisches Öffentliches Recht und Völkerrecht 6: 252–68. Schoutheete, Philippe & Helen Wallace, The European Council, Groupement d’Etudes at de Recherches Notre Europe, Research and European Issues No. 19 (September 2002) https://​institutdelors​.eu/​wp​ -content/​uploads/​2018/​01/​etud19​-en​.pdf. Spierenburg, Dirk & Raymond Poidevin, Histoire de la Haute autorité de la Communauté européenne du charbon et de l’acier: Une Expérience supranationale (Bruylant, 1993). Stie, Anne Elizabeth. Democratic Decision-Making in the EU: Technocracy in Disguise? (Routledge, 2012).

Transatlantic ‘administrative constitutionalism’  349 Strauss, Peter L. (1987). ‘Formal and Functional Approaches to Separation-of-Powers Questions – A Foolish Inconsistency?,’ Cornell Law Review 72: 488–526. Teasdale, Anthony L. (1993). ‘The Life and Death of the Luxembourg Compromise,’ Journal of Common Market Studies 31: 567–79. Tuori, Kaarlo. European Constitutionalism (Cambridge University Press, 2015). Willis, John. (1935). ‘Three Approaches to Administrative Law: The Judicial, the Conceptual, and the Functional,’ University of Toronto Law Journal 1: 53–81. Ziller, Jacques. ‘Defiance for European Influence – the Empty Chair and France’ in Dimitry Kochenov & András Jakab (eds) The Enforcement of EU Law and Values (Oxford University Press, 2017).

20. The politics of the constitutionalisation of corporate power in Europe Jacquelyn D. Veraldi and Matthew R. Hassall

1. INTRODUCTION In mainstream EU studies, ‘[t]he idea of an “ever closer union” is not something to be questioned’.1 However, the historical exercise of corporate power in the EU constitutionalisation process raises problems that even fervent supporters of the economic integration project must take seriously. As trust in large corporations deteriorates,2 the relationship between the European Union (EU) integration project and corporate interests looms larger in the public discourse.3 This relationship directly impacts the lives of ordinary subjects of the EU constitutional order, as inter alia rights-holders, consumers, workers, and ultimately as EU citizens.4 It is regularly subject to the attention of civil society,5 sometimes the media,6 and occasionally political actors and institutions.7 Yet while ‘[b]usiness influence in the EU has long been of scientific and public interest’,8 it has been remarkably neglected in the specific field of EU constitutional studies. We intend to contribute to filling this gap. The EU ‘constitutional order’ (the Treaties, primary law)9 is, before anything else, an economic order. The Treaties enshrine the core objective of establishing an integrated liberal Diez (2020), 15: ‘This normative bias has led to a blind spot of European integration theory, which has often displayed a teleological tendency. The idea of an “ever closer union” (Preamble, Treaty on EU) is not something to be questioned. Instead, scholars often endorsed it and wrote towards its realisation’. 2 ‘Rebuilding Trust in Business’ (2019). 3 Monbiot, ‘Taming Corporate Power: The Key Political Issue of Our Age’ (The Guardian, 12 August 2014) http://​www​.theguardian​.com/​commentisfree/​2014/​dec/​08/​taming​-corporate​-power​-key​ -political​-issue​-alternative. 4 See most notably Article 20 TFEU. 5 Balanyá (2000); ‘Corporate Capture in Europe’ (2018); ‘What Is the Problem with Corporate Lobbying?’ (2014). 6 See e.g. ‘The Power of Lobbyists Is Growing in Brussels and Berlin’ (The Economist, 2021) https://​ www​.economist​.com/​business/​2021/​05/​13/​the​-power​-of​-lobbyists​-is​-growing​-in​-brussels​-and​-berlin; Traynor et al., ‘30,000 Lobbyists and Counting: Is Brussels under Corporate Sway?’ (The Guardian, 5 August 2014) http://​www​.theguardian​.com/​world/​2014/​may/​08/​lobbyists​-european​-parliament​-brussels​ -corporate. 7 OECD, Lobbying in the 21st Century: Transparency, Integrity and Access (OECD, 2021) https://​www​.oecd​-ilibrary​.org/​governance/​lobbying​-in​-the​-21st​-century​_c6d8eff8​-en; ‘EU Commission Publishes Legislative Proposal on Corporate Accountability’ (Business & Human Rights Resource Centre) https://​www​.business​-humanrights​.org/​en/​latest​-news/​eu​-commissioner​-for​-justice​-commits​-to​ -legislation​-on​-mandatory​-due​-diligence​-for​-companies. 8 Fuchs, Gumbert & Schlipphak (2017). 9 This piece operates on the understanding that EU primary law is of constitutional status. Whereas the question of whether the EU can be considered a ‘constitutional’ order is by no means uncontested in academia, it has long been the perspective of the Union itself, including the ECJ, that the primary law of the EU – the general principles of law and treaties with their protocols and the Charter – is widely 1

350

The politics of the constitutionalisation of corporate power in Europe  351 market economy (the internal, single, or common market) and set out the architecture necessary for facilitating that objective. Most of the EU’s constitutional machinery – institutional organisation, competences, procedures, individual rights, and so on – is mobilised towards the realisation and/or protection of this economic order.10 In other words, the establishment and continued functioning of an integrated liberal market economy is the core of the EU constitution. The liberal economic order of the EU constitution was a ‘particular ideological choice’.11 As Section 2 will demonstrate, this choice was to a significant degree constitutionalised and put into effect as a result of corporate involvement in and influence on the EU economic integration project. Section 3 will argue that the consequences of this historical process include the further constitution of corporate power by the constitutional order of the EU and the entrenchment of constitutional obstacles to the EU’s democratic legitimacy. Section 4 then shows that the corporate power facilitated by the internal market constitutional project is both largely untethered and, except by developments in the EU constitutional order itself, untetherable.

2.

CORPORATE INTERESTS IN THE CONSTITUTIONALISATION OF THE INTERNAL MARKET PROJECT

Numerous cross-disciplinary findings concerning the role played by corporate interests in the EU economic integration project merit significantly broader attention in the field of EU constitutional studies than they have so far received. We used this rich body of work to conduct a preliminary interest group analysis of the role of corporate interests in constitutionalising the integrated liberal market economy project and putting it into effect. Here, we present a brief historical narrative of the actors and activities that triggered, sustained, and accelerated the EU constitutionalisation process. Representatives of corporate interests were consistently responsible for returning the European economic integration objective to the political agenda, making concrete proposals for the content of EU constitutional instruments, and exerting pressure on political actors to realise their constitutional obligations once established. This narrative centres on the 1986 Single European Act (SEA), which remains the internal market’s defining constitutional framework. The SEA and its surrounding events were the crucial impetus for realising long-standing constitutional goals that were themselves the product of

considered to be of a ‘constitutional’ status. This was the case long before the Constitutional Treaty saga. See e.g. the infamous reference by the ECJ to the EEC Treaty as the ‘constitutional charter’ of the Community in Case 294/83 Parti écologiste ‘Les Verts’ v. European Parliament [1986] EU:C:1986:166, para 23. See similarly Opinion 1/91 Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area [1991] EU:C:1991:490, para 21; Joined Cases C-402/05 P and C-415/05 P Kadi I [2008] EU:C:2008:461, para 281; Case C-15/00 Commission v. European Investment Bank [2003] EU:C:2003:396, para 75. 10 The exception being the common foreign and security policy and justice and home affairs policy pillars introduced with the Treaty of Maastricht (1992), which are still a more minor part of the European project. See Article B and Title V Treaty on European Union (TEU) [1992] OJ C 191/1. Moreover, these areas can be understood as being closely linked to the facilitation of the internal market. 11 Nicol (2010), 89.

352  Research handbook on the politics of constitutional law corporate agenda-setting. In other words, the historical process by which the internal market has been constitutionalised and realised – before, during, and after the SEA – has been driven by corporate interests. 2.1

The Treaties of Paris (1951) and Rome (1957)

European federalism was initially a geopolitical project. Following World War II, US foreign policy officials envisioned a European liberal market economy as a means for communist containment and devised the European Recovery Plan to this end.12 Other European integration movements had objectives beyond countercommunism, varying in the extent to which they were concerned with non-economic (e.g. social, political, and defence) modes of integration and in their conception of the form that European economic integration should take. The 1951 Treaty of Paris,13 which established the European Coal and Steel Community (ECSC) and was primarily instigated by the famous European political ‘pioneers’,14 was therefore broadly motivated by geopolitical tensions. The ECSC was a largely political endeavour that served an important function in political claims about European peace and the easing of regional tensions.15 This context partially explains why the Treaty produced no more than limited compliance with or enthusiasm for its economic integration measures.16 The Treaty of Rome, which established the European Economic Community (EEC),17 was more deeply rooted in economic liberalism. It was facilitated in large part by the agenda-setting activities of the informal Bilderberg Group, formed between 1952 and 1954 by the political and business actor Józef Retinger18 in consultation with the Europeans Paul Rykens (the chairman of Unilever) and Prince Bernhard (the Dutch Prince Consort and at the time a board member for both Royal Dutch-Shell and Société Générale)19 and the American David Rockefeller (the senior vice-president of Chase National Bank).20 At its inception, therefore, the Group was primarily an association of business interests. Its ostensible purpose was to address what Retinger ‘perceived as the growing menace to the West of Communist expansion’.21 Its strategy for achieving this goal was the promotion of a European pro-liberal

Better known as the Marshall Plan e.g. US Department of State, ‘The Truman Doctrine and the Marshall Plan’ https://​history​.state​.gov/​departmenthistory/​short​-history/​truman, stating that the Marshall Plan ‘emphasized the free market economy as the best path to economic reconstruction – and the best defense against communism in Western Europe.’ The Marshall Plan also led to the Organisation for European Economic Co-operation (now the Organisation for Economic Co-operation and Development), which itself had the economic objective of trade liberalisation: Council of Europe, ‘Congress of Europe (The Hague, 7–11 May 1948)’ (1999) 415–417, https://​rm​.coe​.int/​Co​ERMPublicC​ommonSearc​ hServices/​DisplayDCTMContent​?documentId​=​09000016806952c2. See also Henderson (2013), 139; O’Connell & Özsu (2021), 378. On the Marshall Plan more generally see Chain (2016); Leffler (1988). 13 Treaty Establishing the European Coal and Steel Community (1951). 14 See e.g. Monnet, Schuman, and Spaak, but see also ‘EU Pioneers’ (European Commission) https://​ european​-union​.europa​.eu/​principles​-countries​-history/​history​-eu/​eu​-pioneers​_en. 15 Henderson (2013), 139; Diez (2020), 15; Mueller (2009); Bebler (2013), 118. 16 Gillingham (1995), 151. 17 Treaty Establishing the European Economic Community (1957). 18 On whom, see Biskupski (2017). 19 Wilford (2003), 72. On Bernhard see Nollert & Fielder (2000), 189. 20 Nollert & Fielder (2000), 190. 21 Wilford (2003), 72. 12

The politics of the constitutionalisation of corporate power in Europe  353 market economic ideology that, given US foreign policy enthusiasm for European economic integration and liberalisation, would strengthen trans-Atlantic bonds. The Group played an essential role in the ‘relaunch of European integration’ by promoting the idea in élite political circles.22 This reignited agenda admittedly could have made no progress without concurrent political developments, like the 1956 election defeat of France’s protectionist governing coalition,23 but once these favourable conditions arose, the 1957 Treaty constitutionalised as the core purpose of the EEC the creation of a ‘common’ integrated liberal market economy.24 The Treaty provided for the progressive establishment of the common market over a twelve-year period.25 It prohibited the introduction of new customs duties,26 quantitative restrictions on imports,27 and restrictions on the freedom to establish and provide services.28 It also provided for the progressive abolition of existing restrictions in these areas,29 as well as in respect to the mobility of capital.30 By the end of the first stage of the transitional period customs duties on exports, quantitative restrictions on exports, and restrictions on current payments were to be abolished.31 Customs duties on imports and restrictions on the free movement of workers and capital had to be abolished by the end of the transitional period at the latest.32 In these respects, the four freedoms that form the present basis of the EU constitutional order were already present in 1957,33 owing largely to an agenda set by corporate interests.34 2.2

Intermezzo: The Empty Chair Crisis and the Luxembourg Compromise

The Treaty of Rome constitutionalised the goal of a common market. Due to the absence of sufficient political will, this envisioned economic order did not materialise. The only substantial step taken towards realising the common market was the 1968 establishment of a customs union.35 Non-tariff barriers to intra-Community trade in goods and to the free movement of the factors of production continued to exist. This delay was a product of the 1965–66 Empty Chair Crisis and its solution, the Luxembourg Compromise. Pijl (1998), 121. Lynch (2006), 110–12. For other relevant developments, see Felice & Sandonà (2017). 24 Articles 2 and 3 Treaty Establishing the European Economic Community (1957) (see n 17 above). 25 Article 8 EEC Treaty; van Middelaar (2008), 99. 26 Article 12 EEC Treaty. 27 Articles 31–32 ibid. They could also only be within the OEEC limits. 28 Articles 53 (capital) and 62 (services) ibid. 29 Article 14 (customs duties), Article 33 (quantitative restrictions on imports), Article 52 (establishment), Article 59 (Services) ibid. 30 Article 67 ibid. 31 Article 16 (customs duties on exports), Article 34(2) (quantitative restrictions on exports), and Article 67(2) (current payments) ibid. 32 Article 13(1) (customs duties on imports), Article 48(3) (workers), Article 67(1) (capital) ibid. 33 Barnard (2019), 559. 34 For agenda-setting as an operation of power, see Lukes (2004), 20–29. 35 The customs union abolished customs duties (tariffs) between Member States and introduced a common customs tariff with third countries: ‘Declaration by the Commission of the European Communities (1 July 1968)’ (CVCE, 23 October 2012) https://​www​.cvce​.eu/​en/​obj/​declaration​ _by​_the​_commission​_of​_the​_european​_communities​_1​_july​_1968​-en​-a4f5b96a​-1d48​-435b​-9028​ -7e98739255d2​.html. Otherwise, as noted by the Commission, the liberalisation project ‘had ground to a halt at the end of the 70s’: Commission, ‘Consolidating the Internal Market’ 9 July 1984 COM(84)350 final, para 1. 22 23

354  Research handbook on the politics of constitutional law The Treaty of Rome constitutionalised 1970 as the deadline for realising the common market.36 Member State action was necessary to achieve this goal. To enable this, the Treaty provided for qualified majority voting (QMV) in the Council from the start of the third stage of the transition, 1 January 196637 (though in a limited fashion in the second stage as well).38 Between the Treaty of Rome and the final stage of the transition, however, a key political development obstructed the realisation of the integration agenda. During negotiations in mid-1965, the French government of Charles de Gaulle clashed with other Member States over proposals for further supranationalisation and financial arrangements, especially the financing of the Common Agricultural Policy.39 As a result of these conflicting interests, French officials refused to participate in meetings and French permanent representatives were recalled.40 De Gaulle’s later speeches made clear that the ‘unspoken goal of the operation was to block the transition to majority decision-making’.41 In other words, the French government recognised that QMV might facilitate liberal economic integration in ways that ran counter to the specific interests of any given Member State. The Empty Chair Crisis was resolved following de Gaulle’s narrow re-election, in a vote conventionally interpreted as, in part, an expression of domestic opposition to the French government’s European politics. New negotiations led to the return of French representatives to the European table by striking the Luxembourg Compromise, which was in effect a veto. The Treaty of Rome’s QMV provisions still stood, but by agreed convention Member States were able to declare that any given proposal concerned their ‘very important interests’ and should consequently only be agreed unanimously, even where majority decisions would be lawful.42 As a result: Although the Compromise was only invoked perhaps ten times in fifteen years, it was constantly hanging over everyone’s heads. It took only one partner to voice objections for the discussion to swiftly run aground. Hundreds of commission proposals never made the finish line. (A side effect of the veto was that these proposals could never be decisively rejected, which made it appear as if the work was piling up.) Complaints about European stagnation became commonplace in the seventies.43

The Compromise ensured that the Treaty of Rome’s constitutional requirement for the ‘progressive’ abolition of restrictions was not enacted and therefore that the envisioned common market ‘exist[ed] in name only’.44 As Ziller puts it, ‘every Member State would have some “vital interests” which needed the sword of Damocles of a veto’.45 In these political conflicts of

In light of the 12-year deadline established in Article 8 EEC Treaty. EEC Treaty Articles 14(c); Articles 20, 43(2), 69 and 112; van Middelaar (2008), 99. Moving from the first stage to the second stage required unanimity (Article 7(3) EEC Treaty), and this happened in 1962 (ibid). Movement from the second to the third stage, however, was automatic (ibid 9) and at that point qualified majority voting largely became the rule: e.g. Article 14(c). 38 EEC Treaty Articles 33(8), 63(2) and 101. 39 van Middelaar (2008), 98–102; Ziller (2017), 422. 40 Wallace & Winand (2006), 21. 41 van Middelaar (2008), 104–05. 42 Extraordinary Session of the Council [1966] 3 EC Bulletin 5, 9. See also Davignon (2006), 17–18. 43 van Middelaar (2008), 119. 44 House of Lords European Union Committee, Re-Launching the Single Market: 15th Report of Session 2010–11 (2011). 45 Ziller (2017), 432. 36 37

The politics of the constitutionalisation of corporate power in Europe  355 interest, the economic integration project was over its first three decades primarily an agenda set by corporate actors and unrealised by political actors. 2.3

The Single European Act 1986

The technically unlawful, conventional practice of unanimity struck by the Luxembourg Compromise ‘only abated after the entry into force in 1987 of the SEA, which not only broadened the policy fields in which majority voting was legally possible, but also de facto led to majority decision-making.’46 The SEA re-constitutionalised the objective of establishing a common market, founded on the Treaty of Rome’s four freedoms, within a highly concise timeframe.47 Crucially, the SEA was the site of a re-established political commitment to the use of QMV to achieve the internal market objective, broadening its scope by substituting QMV in respect to rules regarding the common customs tariff, freedom of establishment, and the free movement of workers.48 The SEA’s most important provision for the realisation of the internal market was its introduction of Article 100a SEA, now Article 114 TFEU,49 which was the ‘central Treaty provision for harmonising or approximating the laws of EU [Member States]’ in internal market matters.50 It replaced the Court-established mutual recognition principle as the ‘primary means for EU market integration’.51 As Green Cowles recognises, the SEA both ‘signaled the end’ of the Luxembourg Compromise and substantially reduced the political and procedural hurdles to European integration.52 The root cause of this development, which produced both the SEA and the subsequent secondary law measures that gave effect to the internal market, was an extensive collaboration between the European Commission and corporate interest representatives.53 From 1977, under

Editorial, ‘Not Dead Yet’ (2017), 2. The SEA required the common market be achieved by 31 December 1992: Article 13 Single European Act 1986 [1987] OJ L169/1. inserting Article 8a EEC. 48 Article 28 EEC Treaty via Article 16 SEA (common customs tariff); Article 54(2) via Article 6(4) SEA jo. Article 7 amending Article 149 (freedom of establishment); Article 56(2) EEC Treaty via Article 6(5) SEA (establishment by foreign nationals); Article 49 EEC Treaty via Article 6(3) SEA) (free movement of workers); Article 57 jo. Article 149 EEC Treaty via Articles 6(6)–(7) jo. Article 149 (non-wage earning activities)); Article 70 via Article 16(4) SEA (capital); Article 84(2) via Article 16(5) SEA (sea and air transport). 49 Article 100a EEC Treaty inserted via Article 18 SEA 1986. 50 Kellerbauer (2019), 1236. 51 Ibid, 1239. 52 See also Green Cowles (2012), 107: ‘The SEA was instrumental in implementing the EU's single market program. The central feature of the SEA was the modification of the Community's decision-making procedures that allowed for majority voting on key internal market matters. This change signaled the end of the infamous 1965 “Luxembourg Compromise” … Indeed, it is difficult to imagine that the European Community could have successfully pursued its “1992 program”… without the SEA.’ 53 Fielder (2000), 75. See similarly Bornschier (2000), 11: ‘The completion of the internal market project was worked out between the Commission and the European Roundtable of Industrialists (ERT).’ There is debate about the principal-agency relationship between the Commission and capitalist classes in this respect, but as remarked in e.g. Sandholtz & Zysman (1989), 117, it is difficult ‘to judge whether the business community influenced Europe to pursue an internal market strategy or was itself constituted as a political interest group by Community action’ based on available evidence. Delors acknowledged in respect to the 1992 process that ‘business actors mattered; they made a lot of it happen’: Green Cowles (2012), 114. Similarly, according to Doherty & Hoedeman (1994), 136, claiming that corporate interests 46 47

356  Research handbook on the politics of constitutional law the auspices of the European Industry Commissioner Étienne Davignon (a Belgian political actor whose career had long been invested in questions of European integration54 and who would later become a corporate lobbyist55), the discussion of economic integration through liberalisation was revived at the Commission. To this end, Davignon pursued close links with industrial business groups. His 1982/83 meetings with the CEO of Volvo, Pehr Gyllenhammar, led to the formation of the European Roundtable of Industrialists (ERT), a multinational body consisting of the chief officials of Europe’s largest industrial corporations.56 Like the Bilderberg Group, the ERT was oriented towards European economic integration through liberalisation.57 The Commission and corporate actors both had specific interests in realising a supranational common market, the dramatic expansion of competences and the magnification of profit maximisation potential respectively. So too did Member State governments, in the context of the economic ‘Eurosclerosis’ of the 1970s and early 1980s, perceive possible advantages in realising the common market.58 Between these actors, sufficient political will to commit to the project was generated. The European Council, and subsequently the Council of Ministers, voted frequently to advance the internal market from the early 1980s. It is essential to recognise how deeply the economic integration implemented though the SEA reflected and suited corporate interests, as advocated by the ERT. The realisation of the internal market was based on the Commission’s White Paper, “Completing the Internal Market”, which was drafted by Internal Market Commissioner Lord Cockfield59 and submitted to the Council on 14 June 1985.60 In substance, this White Paper was an industry proposal. Its ‘conceptual basis’ was the plan for establishing the common market drafted in January 1985 by Wisse Dekker, chair of the Dutch multinational electronics company Philips NV.61 Dekker was a member of the ERT, which then endorsed and reproduced his proposal.62 His proposal made four overarching recommendations. All survived in effectively unaltered form

were ‘one of the main driving forces behind the single market’. See likewise on this consensus Harryvan (2020). 54 See an overview of the trajectory of Davignon’s career (and other instances of the revolving door phenomenon) in Dudouet et al. (2013), 221–23. 55 Ibid. Davignon was part of the ERT when it was lobbying for the implementation of the SEA: Green Cowles (1995), 518. 56 Generally the ERT is claimed to be the birthchild of Gyllenhammar (e.g. Apeldoorn (2002), 85; Montalbano, (2021); Green Cowles (1995), 503–04; Harryvan (2020), 5, with Davignon helping Gyllenhammar select ERT members (e.g. Green Cowles (2012), 112; Greenwood (2011)). However, there have also been claims that it was Davignon that begun the initiative (e.g. ibid, 79). 57 Apeldoorn (2002), 86. 58 Allen (1992), 28, noting that ‘Another incentive came from the fact that national attempts to solve the economic problems of the 1970s had all by and large failed and a number of governments, encouraged by their business élites, were turning once again to consider Community solutions.’ 59 A former UK Conservative minister in the Thatcher government: Bornschier (2000)t 82. 60 Commission, ‘“Completing the Internal Market”’ WP COM(85)310 Final. 61 Bornschier (2000), 29. 62 As discussed in e.g. Balanyá (2000), 21.

The politics of the constitutionalisation of corporate power in Europe  357 in Cockfield’s White Paper, with respect to physical barriers,63 technical barriers,64 and fiscal barriers.65 The intertexts between the two documents are consistent and significant.66 As an illustration, Cockfield specifically endorses the same industry standardisation bodies as Dekker, CEN and CENELEC.67 These bodies are subject to a ‘structural imbalance … that guarantees that they are dominated by corporate interests’.68 Even though Cockfield took pains to assert that ‘arrangements had already been made to ensure the participation of consumer representative bodies in the work of CEN and CENELEC’,69 these ‘consumer organisations lack resources to participate fully in CEN committee work’ in the way that corporate interests can.70 The documents also exhibit an array of structural similarities. The first three of Dekker’s ‘four priority fields’, for example, double as the three parts of the White Paper, which subsumes the fourth field, public procurement, into the category of technical barriers.71 Both documents also propose short timetables for the implementation of the proposals, though the White

Dekker (1985), 7–8: ‘trade transactions between member states must become as simple and deregulated as transactions within the national borders’ through the ‘harmonisation of rules and means’ and the ‘simplification of trade procedures’. Commission, ‘“Completing the Internal Market”’ (n 60), 27–28: ‘Our objective is not merely to simplify existing procedures, but to do away with internal frontier controls in their entirety’, which in many situations ‘will require national policies either to be progressively relaxed and ultimately abandoned … or replaced by truly common policies applicable to the Community as a whole’. 64 Dekker (1985), 8–9, wrote that ‘a lack of European standards … is an obstacle to European industry’ and recommended that ‘the Commission, governments and industries should strongly support the standardisation institutes Comité Européen de Normalisation (CEN) and Comité Européen de Normalisation Electrotechnique (CENELEC) in their important task’. cf. Commission, ‘“Completing the Internal Market”’ (n 60), para 66, which required ‘legislative harmonization’ and recommends that ‘the task of defining the technical specifications … will be entrusted to European Standards issued by the Comité Européen de Normalisation (CEN) or by sectoral European Standards in the electrical and building sectors such as CENELEC’. Likewise, on the issue of procurement, Dekker (1985), at 9, recommended the ‘opening up’ of procurement markets, especially in telecommunications, to ensure a ‘liberation’ from the ‘nationalism’ which had resulted in ‘practically the entire purchasing volume of national governments [being] supplied by national champions’. He proposed a set of ‘transparent European rules for government procurement policies’. Similarly, Commission, ‘“Completing the Internal Market”’ (n 60), paras 81–90 also spoke of ‘the tendency of the authorities concerned to keep their purchases and contracts within their own country’ and recommended ‘wider opening up of tendering for public contracts’ and ‘to make the awarding process transparent to potential bidders in the whole of the Community’ – including in ‘telecommunications’. 65 Dekker (1985), 8, made a three-stage proposal for removing ‘fiscal obstacles to a homogenously structured Common Market’ resulting in the ‘complete abolition of fiscal VAT frontiers within the EEC territory’. cf. Commission, ‘“Completing the Internal Market”’ (n 60), para 167 ‘the harmonization of indirect taxation has always been regarded as an essential and integral part of achieving a true common market’, proposes an extensive set of measures for eliminating VAT and excise duty frontiers. 66 See nn 64–65 above. 67 Dekker (1985), 9; Commission, ‘“Completing the Internal Market”’ (n 60), para 68. 68 Nicol (2010), 100. 69 Commission, ‘“Completing the Internal Market”’ (n 60), para 70. 70 McGee & Weatherill (1990), 585. Hence, the latter were correct in their prediction that ‘For financial reasons it is likely that business will capture the standardisation process within CEN.’ 71 Dekker (1985); Commission, ‘“Completing the Internal Market”’ (n 60). 63

358  Research handbook on the politics of constitutional law Paper adjusts Dekker’s ambitious 1990 target to 1992.72 Commitment to a timetable was a key corporate goal in the build-up to the SEA. Cockfield’s predecessor as Internal Market Commissioner, Karl-Heinz Narjes, had in 1984 drafted his own set of proposals for completing the common market; these proposals received little support.73 This was partially because, as a private letter from an Imperial Chemical Industries official to the ERT member Jacques Solvay critically put it, they lacked a ‘precise time-table’ for implementing the proposals.74 Within a year, the Commission had produced just such a timetable. It was politically sensitive and responsive to corporate interest concerns around economic integration. These intertextualities demonstrate the alignment of the ERT’s and the Commission’s interests and goals. This is significant not only in terms of what was included in the White Paper but also in what was omitted from it. In 1984, the Council had set up its own Dooge Committee ‘to make suggestions for the improvement of the operation of European co-operation’.75 The committee’s report appeared in March 1985 and made recommendations that were as wide-ranging as Narjes’s 1984 proposals.76 They affirmed several of Dekker’s liberalising recommendations but also explicitly paired economic integration with, for example, measures against ‘pollution’, insisting that ‘high priority must be given to the protection of the environment and the improvement of working conditions and safety at work’.77 Cockfield’s White Paper, instead ‘separated strict internal market issues from other issues such as social and environment policy – a fact that appealed to many industrialists’.78 The SEA, in the end, paid only lip service to the non-market environmental and social objectives proposed by the Dooge Report.79 Narjes’s proposals and the Dooge report represented more positive forms of European integration. In the end, the SEA constitutionalised a negative form of integration that reflected the corporate interests contained in Dekker’s proposals and Cockfield’s White Paper. 2.4

Making Sense of the Single European Act

For some analysts, especially intergovernmentalist theorists of EU integration,80 the similarities between Dekker’s industry proposal, Cockfield’s White Paper, and the internal market that was realised following the SEA are simply indicative of coincidentally shared interests in facilitating economic integration. Moravcsik, for example, downplays the role of corporate interests in achieving and realising the SEA by neglecting to mention the relationship 72 The 1992 Single Market deadline is contained in Commission, ‘“Completing the Internal Market”’ (n 60), but appears to have been originally proposed in Delors’ speech given days after Dekker’s proposal: Weatherill (2016), 242. The 1992 target was then committed to by the European Council, ‘Conclusions on the Proceedings of the European Council’ (29–30 March 1985) https://​www​.consilium​ .europa​.eu/​media/​20694/​copenhagen​_december​_1982​_​_eng​_​.pdf. 73 Commission, ‘La Consolidation Du Marché Interieur’ (1984) COM(84)305 final. 74 Quoted in Green Cowles (1995), 514. 75 European Council, ‘European Council Meeting at Fontainebleau – Conclusions of the Presidency’ (25–26 June 1984) 10, https://​www​.consilium​.europa​.eu/​media/​20673/​1984​_june​_​-​_fontainebleau​_​_eng​ _​.pdf. 76 Ad hoc Committee for Institutional Affairs, ‘Report to the European Council ('Dooge Report’)’ EC Bulletin Supplement 4/85. 77 Ibid, 19. 78 Green Cowles (1995), 516 note 33. 79 See Articles 21–22 Single European Act 1986. 80 Green Cowles (1995), 523.

The politics of the constitutionalisation of corporate power in Europe  359 between Dekker and Cockfield’s documents; he focuses instead on the role of the French president François Mitterrand.81 Yet the ERT’s lobbying influence on Mitterrand is itself well-documented.82 Key political actors at the Commission have admitted in oral interviews that the ERT played an essential role in the formulation and implementation of the SEA. Cockfield himself acknowledged the influence of Dekker’s industry proposal on his White Paper.83 Jacques Delors, then the Commission president, also acknowledged that ‘business actors mattered; they made a lot of it happen’84 and that the ‘continuing pressure’ applied by the ERT was ‘one of the main driving forces behind the single market’.85 These are valuable testimonies from political actors with privileged access to the generally opaque negotiations, lobbying, and decision-making processes that surrounded the SEA. The constitutionalisation of the internal market must therefore be understood as an operation of corporate power. The ERT developed an array of strategies for advancing its integration agenda and for exerting pressure on political actors to realise the new constitutional order. These mobilisation strategies included inter alia meetings and other communications with heads of state/government and other senior public actors,86 holding press conferences,87 publishing in media fora,88 and organising conferences.89 At its most nakedly coercive extent, the ERT’s Internal Market Support Committee issued a widely-published press release in 1987 that announced that ‘if progress towards the implementation of the European market is as slow as at present, it is unavoidable that European industries might have to reconsider their long-term strategies in order to stay competitive, with the possibility of redirecting industrial investments … outside Europe’.90 In its movement from the unrealised objective set by the Treaty of Rome to an actually existing economic order, the internal market has historically relied on agendas set and pressure exerted by corporate actors, in private and in public, in the service of realising a constitutionalised integrated liberal market order. Quite apart from any mere ideological alignment between Commission actors (like Davignon) and the ERT, therefore, the SEA and its implementation was the product of multinational corporate power over and with the Commission and national governments.91 Our rendition of this narrative is wholly conventional; beyond EU constitutional studies, it is widely and correctly understood

81 Moravcsik (2992), 40, 45–46 for discussion of White Paper. See a similarly sceptical take by Greenwood (2003), 21–23. 82 See e.g. Green Cowles (2012), 112; Green Cowles (1995), 509–13. 83 Doherty and Hoedeman (1994). 84 Green Cowles (2012), 114. 85 Doherty and Hoedeman (1994). 86 See e.g. the series of events chronicled in Table 3.2 in Fielder (2000), 89. 87  e.g. Green Cowles (1995), 519. 88 Yildiz (2016), 127, 137. 89 See e.g. Green Cowles (1995), 505. 90 ERT press release cited in ibid, 519. 91 See Pansardi & Bindi (2021), ‘66, summarising the contribution of feminist theorist Amy Allen: ‘“Power-over” refers to an asymmetrical relation between two or more actors … “Power-with” consists in the ability of a group to act together in view of collective outcomes or goals’. On corporate power, see Section 3.1 below. Power-with has often been taken as a normatively legitimate form of power, founded on the collective resistance and solidarity of the otherwise disempowered. We note that, since power-with does not have an intrinsically normative component, it may also refer to the concerted action of already empowered actors like the ERT and the Commission: Allen (1998), 35.

360  Research handbook on the politics of constitutional law that corporate interests played a decisive role in determining the content of the White Paper and in implementing the White Paper’s provisions after the SEA.92 This has remained the case in subsequent political EU constitutionalisation processes. The establishment of the Economic and Monetary Union in 1992, for example, relied on industrial and financial sector actors as ‘strategic partners’,93 as the later Commission President Jacques Santer acknowledged.94 EU accessions have likewise been routinely influenced by the lobbying of various corporate interests, such as Unilever in the UK’s case and numerous western European corporate groups in the case of the Eastern expansion.95 Again, both the political agenda in the build-up to the 2007 Treaty of Lisbon and the drafting of the Treaty itself were shaped by these interests.96 One of the European Parliament’s three representatives at the Lisbon intergovernmental conference was simultaneously a senior office-holder at Bertelsmann, Europe’s largest multinational media company and ‘Germany’s most influential neoliberal think-tank’.97 Civil society has extensively chronicled the endlessly varied forms of influential corporate lobbying with respect to EU secondary law-making.98 These specific histories and issues all require yet more detailed scholarly attention, archival investigations, and oral interviews with key political and corporate actors. Nonetheless, even in their current form, these histories speak to the hegemony of a transnational corporate class empowered over and with political actors, as has been demonstrated by the historical materialists of the Amsterdam School.99 This dynamic has been overlooked by classical approaches that understand power to cohere in the public institutions of a given constitutional order and are consequently blind to the capacity of other forms of power to act on processes of constitutionalisation.100 In describing the history of European constitutionalisation, we have so far limited ourselves to a discussion of the framing of the Treaties. These political processes were complemented by judicial processes, however. Particularly during the de Gaulle era of political paralysis on the European level, the European Court of Justice (ECJ) took vital steps towards realising the

92 Fielder (2000), 88; Doherty & Hoedeman (1994); Green Cowles (1995), 503, 514, 522; Sandholtz & Zysman (1989), 116–17; Harryvan (2020); Apeldoorn (2002), 24. 93 Collignon & Schwarzer (2002), 134; Genschel & Jachtenfuchs (2016), 51; Georgiou (2019), 15 and note 30. 94 In a speech to the AMUE board, former Commission President Jacques Santer remarked that ‘the association was about the only body which supported us in our firm belief that the single currency would become a reality’: Balanyá (2000), 49; Apeldoorn (2000), 170; Collignon & Schwarzer (2002), 5. 95 Jones & Miskell (2005); Bohle (2006), 71. 96 ‘[T]he European Commission was further developing the Lisbon agenda in close collaboration with European business representatives.’: Hilary (2009), 33, likewise writing that ‘the text enshrined the EU's commitment to a “highly competitive” internal market and to “the progressive abolition of restrictions on international trade” – neoliberal policies which have underpinned the European programme since its earliest beginnings’. 97 For instance, it has been highlighted that MEP Elmar Brok, one of the EP’s three representatives at the Lisbon intergovernmental conference, simultaneously held a senior position at Bertelsmann Europe’s largest media company and ‘Germany’s most influential neoliberal think-tank’ (Beck & Germann (2019)). See also: ‘Bursting the Brussels Bubble’ (2010); O’Donnell (2011); Karnitschnig (2019). 98 See e.g. ‘Lobbying the EU’; ‘Bursting the Brussels Bubble’ (2010). 99 In fact, the most comprehensive analysis of the role of corporate actors (including the ERT) in EU integration has come from this school: Apeldoorn (2002), esp. 83–157; see also Bieler & Salyga (2020), 24. 100 Galligan & Versteeg (2013), para 1.2.

The politics of the constitutionalisation of corporate power in Europe  361 integrated liberal market economy set out in the Treaty of Rome.101 The ECJ, too, has been a profitable sphere for the operation of corporate power. Through the preliminary ruling procedure,102 corporate actors and their lawyers have exercised power with the ECJ over Member State authorities in the implementation of steps towards the negative integration that corporate actors had themselves envisioned.103 This dynamic was first enabled by the ECJ’s establishment of the principles of direct effect and supremacy in the seminal cases Van Gend en Loos and Costa v. ENEL respectively.104 It is essential to note that these cases were brought on the basis of internal market provisions in the Treaty of Rome by litigants with business interests.105 These principles rendered supranational liberalisation measures judicially enforceable on the national level.106 Corporate actors then turned their strategies of influence to securing the recognition of these principles within Member States,107 leveraging their financial resources to act as ‘repeat-players’ in both national and supranational courts.108 Hence, for example, the multinationals Philip Morris and Rothmans brought repeated cases in the French courts that resulted in the Conseil d’État fully accepting the principle of direct effect.109 ECJ case law has been a supranational constitution-making force110 but it has depended for this effect on corporate activities in national and European courts as well as in the formulation of primary law. The present constitutional order of the EU serves above all the functioning of a supranational integrated liberal market economy founded on the free movement of goods, services, persons, and capital. Since Lisbon, the Treaties have identified these rights with ‘citizenship’,111 but this is more precisely a ‘market citizenship’.112 It cannot be forgotten who lobbied for and has benefited from the internal market arrangements on which EU citizenship is founded. The constitutionalised internal market is the product of the past exercise of corporate power: power to drive political agendas, to participate in political processes, to have expressed concerns taken seriously (as with the need for a timetable for implementing the internal market), and to coerce action, either through privileged access to the national and European court systems or through threats founded on multinational economic power. This is not to say that political will was not a necessary precondition for the constitutionalisation of the integrated liberal market economy.113 It is merely to point out that the ‘particular ideological choice’ embedded in the EU constitutional order is, to a remarkable extent, the result of corporate interests articulated

101 Weiler (1981), 270. The ‘Europeanisation-through-case-law’ narrative quickly became the dominant narrative of integration in academia (as noted by Vauchez (2010) but this does not tell the rest of the integration story involving political and private actors. 102 Article 267 TFEU. 103 See e.g. Bouwen & Mccown (2007), 434–39; Fligstein & Stone Sweet (2002), 1222–23. For an analysis of the use of this procedure by private litigants see Sweet & Brunell (1998), 66, 71–72. 104 Burley & Mattli (1993); Sweet & Brunell (1998). 105 Case 26/62 Van Gend en Loos v. Netherlands Inland Revenue Administration [1963] EU:C:1963:1 was about customs duties (Article 12 EEC Treaty) whereas Case 6/64 Costa v. ENEL [1964] EU:C:1964:66 concerned the right of establishment (Article 53 EEC Treaty). 106 Sweet & Brunell (1998), 68. 107 See e.g. Golub (1996). 108 Galanter (1974). 109 Mattli & Slaughter (1998), 188; Plotner (1995). 110 Stein (1981). 111 Article 20(2) TFEU jo. Articles 45, 56. 112 Kochenov (2019): O’Brien (2017), 91; Nic Shuibhne (2010). 113 As noted by Fielder (2000), 91.

362  Research handbook on the politics of constitutional law and empowered, in both political and legal domains and on both the national and supranational levels, over decades of EU constitutionalisation.114 Of course, without corporate interests, the internal market may still have come to exist, but it is worth pausing to consider what constitutional status the positive integration proposed in the Dooge Report may have acquired vis-à-vis the negative integration implemented through Cockfield’s White Paper in the absence of corporate power.

3.

IMPLICATIONS OF CORPORATE INVOLVEMENT IN EU CONSTITUTIONALISATION

Barber’s theory of ‘positive constitutionalism’ shows clearly that constitutions are not only about tethering public authority.115 They also embed ‘a set of principles relating to the institutional structure of the state’ that may facilitate and direct its ‘capacity to effectively advance the well-being of its members’.116 On this model, there is no such thing as a neutral or abstract constitution, formulated outside or against the operation of power. Instead, constitutions are only as good as the particular sets of practices that they embed, whether those practices are economic, social, cultural, or so on. Barber makes a compelling case that constitutional orders can be organised to facilitate human flourishing. Conversely, therefore, constitutions may also obstruct human flourishing. Here, we argue that the constitutionalisation of the integrated liberal market economy has not facilitated the flourishing of ordinary European subjects but has instead facilitated the further constitution of corporate power and poses intractable obstacles to the EU’s democratic legitimacy. 3.1

The EU Constitution Constituting Corporate Power

In Section 2, we presented a narrative of EU constitutionalisation that highlighted how corporate actors exercised power to realise the supranational integrated liberal market economy, through the exercise of power over various European and national political actors and of power with an EU Commission with aligned interests and an ECJ to which well-resourced corporate actors have privileged access. Here, we argue that the consequence of these historical power relations has been the further constitution of corporate power. In other words, corporate power is historically constructed: the past exercise of corporate power in the EU constitutionalisation process has expanded and shaped corporate power in the present. By corporate power, we refer not to any quantifiable volume of power possessed by particular corporations.117 As Davis observes, ‘corporate power today, in a globalized economy, is far more ambiguous’ than it was ‘for most of the twentieth century, [when] corporate power came from large size and holding an oligopoly or monopoly position in industry’.118 Instead, Nicol (2010), 89. Barber (2018), 6–19. 116 Ibid, 10. 117 We do not seek to contribute to the theoretical understanding of distributions, structures, and relations of power. Numerous possible frameworks for the theoretical analysis of corporate power already exist: Grant (1997). Whole volumes could be dedicated to such an analyses, which has already been done in the field of institutional economics: see e.g. Sternlieb (2017). 118 Davis (2015), 395, 397. 114 115

The politics of the constitutionalisation of corporate power in Europe  363 we refer to a quality of the relationships into which corporate actors enter, in which they might exercise power to achieve desired outcomes and power over possible countervailing forces.119 We are therefore concerned with a system of power, the constitutionalised internal market, and how it facilitates corporate interests in general. Nonetheless, we note that, tellingly, the specific corporations that were the major members of the ERT remain the biggest industrial corporations in Europe and that all but two of the ERT’s founding members are presently in the Forbes Global 500.120 In asking how the constitutionalisation of the internal market has facilitated corporate power, it is necessary to cast a wide net. Epstein reminds us that corporate power can be expressed in a wide variety of spheres: the economic, the sociocultural, the individual, the technological, the environmental, and the political.121 In the economic sphere, restrictionless access to European capital, labour, and consumer markets has contributed to an identifiable trend towards increased market or industry concentration in Europe.122 Some analysts insist that industry concentration is a positive or neutral phenomenon, corresponding to a rise in productivity.123 However, it has also been associated with both higher price levels and decreases in innovative activity at the industry level,124 which are expressions of aggregate market power.125 An empirical correlation has also been identified between neoliberal policies like the integrated liberal market economy and increased income inequality.126 The resultant concentration of wealth among a small number of large corporations (and their associated individuals) empowers actors with superior financial resources over stakeholders with competing interests, such as ordinary subjects of the EU constitutional order, in a range of other spheres. Corporate lobbying, dominant involvement in standardisation bodies, and litigative repeat-playing in both the national and European courts are obvious examples of this empowerment over ordinary subjects.127 Those competing stakeholders include national governments. Corporate actors have been consistently successful at securing liberalising and deregulatory outcomes through the courts, notably in the cases of national company law in areas of corporate control,128 direct taxation,129 and the UK Sunday trading saga, in which business actors used preliminary references to lobbied UK courts repeatedly on the basis of EU law and secured a ‘near-five year hiatus in the enforcement’ of Sunday trading rules.130 The economic capacity of ‘large

For an overview of these theoretical terms, see Pansardi & Bindi (2021). Out of 17 founding members, the two exceptions are Olivetti and ICI: ‘Global 500’ (Fortune) https://​fortune​.com/​global500/​2021/​. 121 Economic power; social and cultural power; power over the individual; technological power; environmental power; political power. Epstein (1973); Epstein (1974). 122 See e.g. from Bajgar et al. (2019); Koltay, Lorincz & Valletti (2021). Early in integration see e.g. Allen et al. (1998), 443–44. 123 Bighelli et al. (2020). 124 On technological corporate power, see Epstein, ‘Dimensions of Corporate Power, Pt. 2’ (1974), 32–35. 125 Philippon (2019), 16. 126 Ostry, Loungani & Furceri (2016). On the increase in wealth inequality in Europe see ‘European Wealth Report’ (2021), which also highlights that the wealth of the very wealthiest Europeans stems from luxury goods and retail businesses: see 45–46. 127 For repeat-players: Galanter (1974). 128 Horn (2012), 104–105. 129 McCown (2009), at 98–101. 130 Deakin (1993), 367. See also Rawlings (1993), 314–15, 332. 119 120

364  Research handbook on the politics of constitutional law corporate actors’ to ‘use … Euro-litigation strategies to achieve gains’131 has been increasingly facilitated in part by the concentration of wealth that has accompanied European integration. It has also been facilitated, like corporate lobbying, by the transfer of market-related competences to the supranational level. Lobbying aims to exert influence over visible decision-making power, which in this case has been centralised in one location rather than in 27 Member States. This has a magnifying effect; a given volume of financial resources will achieve greater lobbying success, conceived of as the power of lobbyists to achieve their desired outcome, when concentrated rather than spread out. Corporate interests have been sufficiently empowered by this streamlining to capture a share of decision-making authority. Corporate representatives formally participate in and frequently control official EU institutional committees132 and European standard-setting.133 The economic and political empowerment of corporate actors to achieve desired outcomes is simultaneously an empowerment of corporate actors over other stakeholders, in all of Epstein’s spheres. Birchall has shown clearly how corporate power is ‘used to profit from impeding the full enjoyment of human rights beyond legally recognized forms of harm’, restricting the material possibilities for individual rights-holders to realise their rights and subjecting individual consumers to PR campaigns that misrepresent corporations as meaningful human rights actors when there is a market incentive to do so.134 Individuals as workers have also suffered from a restrained capacity to achieve their own goals with respect to working conditions, wages, or employment status.135 We also note how corporate interests, expressed through lobbying and other means, have manifested as an environmental power in the ongoing climate crisis.136 All of these observed effects speak both to the empowerment of corporate actors to achieve their own profit-maximising outcomes and their empowerment over other actors whose interests are not aligned with corporate interests. These effects have been facilitated by the constitutionalisation of the internal market, which has acquired what might be termed a ‘paradoxical’ quality. Constitutionalism begins from the idea that constitutions serve as mechanisms for restricting ‘the arbitrary power of the state’.137 They subject public actors to restraints that are rela Mattli & Slaughter (1998), 188–90. Large corporate interests are more likely than other stakeholders to be represented in Commission expert groups because, according to the empirical analysis of Chalmers (2014), 987, ‘there is clear evidence that interest organisations with greater resources also have more expert group seats’. A 2008 civil society group study found that ‘Within the sample under study, in 64% (18/28) of Expert Groups with industry representation, there is an unbalanced weighting in favour of industry. Furthermore, our survey findings revealed that 25% (7/28) of the Expert Groups with business involvement are not only unbalanced but corporate controlled.’ ‘Secrecy and Corporate Dominance’ (2008). See also Schilde (2013), 63–64; Vassalos (2013). 133 See Annex I Regulation (EU) No 1025/2012 on European standardisation [2012] OJ L 316/12. CEN and CENELEC are still two of three core standardisation bodies officially recognised by the EU, and have now merged. The third is the European Telecommunications Standards Institute, which sets standards for information and communications technology. ‘CEN-CENELEC’, https://​www​.cencenelec​ .eu/​. 134 Birchall (2021), 61–63, 65. 135 See e.g. Overbeek & Bieling (2003), 52, 56–61. 136 For environmental power, see Epstein, ‘Dimensions of Corporate Power, Pt. 1’ (1973), 15. See e.g. Michaels & Ainger (2020); in Böhler, Hanegraaff & Schulze (2022); Brock & Dunlap (2018). 137 Barber (2018), 2.B, citing Sartori (1962). See also Alberts (2009), 127: ‘All democratic constitutions aim to regulate the exercise of political power according to democratic norms of behaviour, and all 131 132

The politics of the constitutionalisation of corporate power in Europe  365 tively difficult to remove or modify. Constitutions are therefore fundamentally about power. It is generally (and rightly) accepted that state or public power in a given polity should not be absolute nor constrained only by the possibility of extra-legal or extra-constitutional resistance by subjects. The constitutionalisation of an integrated liberalised market economy is certainly a restriction on public power in this sense. It reduces the capacity of national and EU political actors to modify or correct the EU economic order. This restriction on public power is therefore simultaneously a form of private (corporate) power because it is negative integration – a liberalised lack of restrictions on business activities – that has been constitutionalised. There are strong arguments that powerful private actors should be subject to constitutional restraints, but these are unapplied arguments in the European context.138 Instead, constitutional values and principles, including inter alia openness,139 democracy,140 and the rule of law,141 are treated as limited to public institutions. This is an invisible operation of power,142 shaping assumptions about the scope of constitutional values and principles. In the case of the internal market project, restraints on public power have given rise to a largely untethered form of private power. Scharpf has shown clearly the problems attendant on the constitutionalisation of negative integration, which arise in part out of the governmental structure of the EU. He recognises that ‘the institutional capacity for negative integration is stronger than the capacity for positive establish institutions to reflect these norms.’ Compare the discussion of constitutional empowerment by Galligan and Versteeg (2013), para 1.2: ‘Constitutions constrain government: they generate a set of inviolable principles to which future lawmaking and government activity must conform. But constitutions also enable government, by empowering institutions and, in some cases, by mandating them to promote social welfare.’ They acknowledge, however, that the ‘use of the term “constitution” in this way is relatively recent’. 138 Freeman (2000), 543, 576. 139 The articles containing the principle of openness as listed by the CJ include ‘the second paragraph of Article 1 and Article 10(3) TEU, Article 15(1) and Article 298(1) TFEU and Article 42 of the Charter’ (see inter alia Case C-160/20 Stichting Rookpreventie Jeugd [2022] EU:C:2022:101, para 35). According to the CJ, ‘openness enables the EU institutions to have greater legitimacy and to be more effective and more accountable to EU citizens in a democratic system.’ This principle has been relied on or raised by the CJ several times in recent years, as seen in respect to e.g. the confidentiality of Commission impact assessments in Case C-57/16 P ClientEarth [2018] EU:C:2018:660, the confidentiality of legal opinions of an institution Case C-156/21 Hungary v. Parliament and Council [2022] EU:C:2022:97, paras 58–61. It was referred to as a ‘fundamental principle’ in Case C-175/18 P PTC Therapeutics International v. EMA [2020] EU:C:2020:23, para 94. See on this principle Alemanno (2014). 140 Article 2 enshrines the values of respect for democracy and the rule of law. They are referred to as ‘universal’ values in the preamble of the TFEU. Moreover, according to the Court’s case law Article 10(1) TEU, which provides that ‘The functioning of the Union shall be founded on representative democracy’, ‘gives concrete expression to democracy as a value’ (Case C‑418/18 P Puppinck [2019] EU:C:2019:1113, para 64) ‘referred to in Article 2 TEU’ (Case C-502/19 Junqueras Vies [2019] EU:C:2019:1115, para 63). See also Case C-718/18 Commission v. Germany [2021] EU:C:2021:662, para 129: ‘the principle of democracy … is guaranteed throughout the European Union’. 141 It appears however that the rule of law as an Article 2 TEU value must be given ‘concrete and justiciable expression’ via over provisions of EU law: Pech & Kochenov (2021) (their emphasis). See also e.g. Case C‑896/19 Repubblika [2021] EU:C:2021:311 ‘compliance by a Member State with the values enshrined in Article 2 TEU is a condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State. A Member State cannot therefore amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU, para 63’. 142 See Lukes (2004), 25–29.

366  Research handbook on the politics of constitutional law integration’.143 The former’s privileged position as the basis of the Treaties has enabled the ECJ and, through it, corporate actors to advance internal market provisions against infringements by Member States, whereas the market-correcting policies and regulations that may be established through positive integration rely primarily on the political agreement of Member States and the European Parliament, which are subject to far more routine conflicts of interest.144 In this respect, though it was the Treaty of Rome’s constitutionalisation of negative integration that enabled the ECJ to begin establishing the internal market, we wish to recall especially how historic corporate power acted to prevent the constitutionalisation of the social and environmental protections that were integral both to the Dooge Report and to Narjes’s 1984 proposals. For a brief moment in 1984–85, the possibility of a constitutional order not uniquely founded on an economic ideological choice may have been alive. Corporate interests helped to shut down that possibility and constitutionalise instead a lack of restraints on corporate power. The result has not merely been a static institutional imbalance in favour of corporate interests at the European level but a dynamic system of power that further and increasingly constitutes corporate power, as greater wealth concentration and fewer obstacles facilitate the achievement of corporate interests over and against the interests of other actors, including at the national level. Depending on one’s view of the desired depth of constitutionalisation, therefore, the EU is either over- or under-constitutionalised. It may be over-constitutionalised in the sense that, by entrenching a specific economic ideological structure for the internal market, the SEA incorporated ‘provisions which would be ordinary law in states’ into constitutional protections.145 Since this economic ideology serves corporate interests, its constitutionalisation has placed those corporate interests beyond the reach of the EU’s day-to-day political decision-making and legislative authority. Equally, the EU may be under-constitutionalised in the sense that its constitutional machinery is mobilised towards protecting an economic order which frees corporate interests from restrictions and not simultaneously towards mitigating the harms that those corporate interests enact and that are briefly catalogued in this section. 3.2

Bringing Democratic Legitimacy into Doubt

Over-constitutionalisation has implications for democratic legitimacy.146 So too does under-constitutionalisation, as conceived above. Davies has argued insightfully that the constitutionalisation of the internal market has, by virtue of the requirement for European legislation to have a legal base in generally instrumental Treaties that authorise action only for ‘a specific and pre-defined purpose’, functioned to invalidate the pursuit of various, unconstitutionalised social, cultural, environmental, and human interests except as corollaries to the achievement and protection of open markets.147 The primary effect of the constitutionalisation of the internal market without other, positive forms of integration is to protect the internal market from political intervention. This has an obvious consequence for the EU’s democratic legitimacy. Ordinary subjects of the EU constitutional order who identify in it a prioritisation of corporate

Scharpf (1999), 49–50. Ibid. 145 Grimm (2015). See also Höpner & Schmidt (2020), 186. 146 On over-constitutionalisation and legitimacy see Grimm (2015). 147 Davies (2015), 266–69. 143 144

The politics of the constitutionalisation of corporate power in Europe  367 interests over their own may also consider European democracy incapable of correcting such an illegitimate order. Political legitimacy is in part a question of representation and perception.148 In all but the most authority-friendly theories,149 political legitimacy is a subjective phenomenon that either depends on or is indicated by the consent of the subject body. It is therefore also a socially negotiated phenomenon, since the conditions for generating consent may change over time and vary across communities. In respect of representation, we note the EU’s concern to represent its constitutionalisation process as a purely political endeavour, adopting an official silence in its digital presence about its historical relationships with corporate interests and the role of these interests in shaping the content and pace of EU integration, both in the drafting of the Treaties and at the ECJ.150 Misrepresentation, the manipulation of public memory, and the opacity of the operation of corporate power may combine to preclude a critical mass of subjects from properly, informedly consenting to the constitutional order under which they live. It is well established that corporate interests play an active role in the EU policy-making and secondary law-making process,151 but this is not true of the origins of the EU internal market and the EU constitutional charter. The very need for greater attention to the involvement of corporate power in the EU constitutionalisation process, which we noted at beginning of this chapter, raises the possibility of a consent deficit in the EU’s legitimate right to implement the internal market. In respect of perception, it must be remembered even on normative theories of legitimacy that subjects who perceive their political and economic régimes to be illegitimate act accordingly, whether or not these perceptions are founded on accurate historical knowledge or rational, informed analyses of EU decision-making processes and outcomes. There exists a widespread perception among ordinary subjects of the EU that their constitutional order favours corporate interests over their own. A clear plurality of subjects of the EU constitutional order consistently report their view that corporate interests have been the ‘big winners in the integration project’,152 in particular contradistinction to ‘the unemployed, the retired and unskilled workers’.153 On Schmidt’s tripartite model of democratic legitimacy (conceptualised in an EU context), this perception relates to ‘output legitimacy’, which ‘center[s] on the ability of EU institutions to govern effectively for the people’.154 We have seen already that the EU constitutional order serves to further constitute corporate power and that the resultant outcomes are detrimental to the interests of ‘the people’, conceived of as ordinary subjects in their capacities as inter alia rights-holders, consumers, workers, and citizens. There are strong reasons to suppose further deficits in democratic legitimacy exist under the other two aspects of Schmidt’s model.

Davies uses the term ‘social legitimacy’ to mean broadly the same phenomenon. According to Estlund (2009), subjects are obliged to consent to democratic authority if certain normative conditions are met (though we note that the involvement of corporate interests in democratic processes would, in any case, preclude the fulfilment of these normative conditions). 150 See especially ‘EU Pioneers’ (n 14). 151 This is in particular in light of the increased scrutiny by media outlets and civil society groups on the role of corporate actors in EU policy- and (secondary) law-making: see nn 5–6 above. 152 McLaren (2004), 901. 153 Ibid; Moore (2016). 154 Schmidt (2013), 2, 4. 148 149

368  Research handbook on the politics of constitutional law ‘Input legitimacy’ essentially consists in democratic political participation.155 A deficit in input legitimacy requires no assessment of the merits or otherwise of an integrated liberal market economy. If such an economic order were the result of the genuine involvement of a critical mass of ordinary subjects, its input legitimacy would be assured regardless of its outcomes. However, this order was installed, as we have seen, on the basis of decades-long corporate involvement in the EU constitutionalisation process. Due to the opacity of this involvement and lobbying at both the European and national levels, the vast majority of ordinary subjects cannot have had an equal say in the ‘particular ideological choice’ that now shapes their lives. ‘Throughput legitimacy’ is ‘the efficacy, accountability and transparency of the EU's governance processes along with their inclusiveness and openness to consultation with the people’.156 In this context, we must take account of the often opaque exercise of corporate power over and with the EU Commission during the past EU constitutionalisation process. This stands in clear tension with the constitutional principle of transparency.157 The inception of the internal market occurred under a lack of rules for limiting conflicts of interest and corruption and a lack of channels for holding the Commission accountable for its relationships with corporate interests. Both accountability and transparency pose significant hurdles for EU democratic legitimacy. However legitimacy is theorised and assessed, therefore, the constitutionalisation of the integrated liberal market project fails to meet its basic measures and, crucially, is broadly understood by its subjects to do so.

4.

TETHERING CORPORATE POWER, RESHAPING CORPORATE POWER?

Corporate interests, we have seen, often conflict with the interests of other stakeholders in the EU constitutional order but have been structurally empowered by the constitutionalisation of the internal market that those interests had themselves acted to secure. It would be remiss not to ask how corporate power might be tethered and what options might exist for reshaping it within the existing constitutional order. The answer is that no sufficient direct legal mechanism exists for this purpose. We have only a patchwork of provisions, across numerous areas of legislation, that cannot tether corporate power to the extent necessary to rectify the negative implications of corporate involvement in the constitutionalisation of the internal market project. In terms of internal market provisions themselves, there is an ‘economically liberal bias’ entrenched in the underlying, general rule.158 The free movement of the factors of production by definition take precedence over their restriction. As a result, it seems likely that ‘the supremacy of free movement over basic social rights implied by the ECJ judgments is leading

See Scharpf's numerous works summarised in ibid. Schmidt (2013), 2. 157 The EU principle of openness (which includes transparency) was only later established in the Treaties (see n 139 above). 158 Höpner & Schmidt (2020), 182, 186. 155 156

The politics of the constitutionalisation of corporate power in Europe  369 Europe in a politically and socially unsustainable direction.’159 Economic justifications are insufficient for derogations (though there is some indication that, where economic grounds can be shown to relate to the public interest, the ECJ may possibly accept this non-Treaty, case-law justification for derogation).160 The difficulty of justifying derogations is a product, in part, of the constitutionalised character of EU negative integration. Likewise, competition law provides no comprehensive solution. Articles 101 and 102 TFEU are simply not designed to catch the kinds of activities described here. EU competition law is concerned only with certain types of harm, most notably harm to consumer welfare caused by the exercise of market power.161 Consumer protection law162 and other areas of sectoral regulation such as pharmaceutical law163 are similarly narrow in nature, offering only the potential to protect individuals from specific harms rather than the full variety of harms caused by the exercise of corporate power. EU lobbying regulation has likewise so far been insufficient to tether corporate power, though increased transparency in lobbying would at least facilitate throughput legitimacy. Until very recently, the EU Transparency Register was voluntary and applicable only to communications with the Commission and Parliament, not with Member States in the Council of Ministers. In mid-2021, all three institutions reached an agreement on the creation of a mandatory transparency register.164 However, the agreement preserves substantial loopholes.165 Dølvik & Visser (2009), 491. See likewise Lasser (2014), 246–48. Nic Shuibhne & Maci (2013). 161 O’Donoghue & Padilla (2020), 8 (foreword by Advocate General Wahl), 78; Whish & Bailey (2012), 18–19; Bishop & Walker (2010), para 2–017. See most notably Joined Cases C-468/06 to C-478/06 Sot Lélos kai Sia EE and Others v. GlaxoSmithKline [2008] EU:C:2008:504, paras 33 and 68. EU competition policy has long officially endorsed a consumer welfare objective: See e.g. the Commission explicitly or implicitly identifying consumer welfare as the objective of EU competition law in: Commission, ‘Guidelines on the application of Article 101 of the Treaty on the Functioning of the European Union to technology transfer agreements’ [2014] OJ C89/3, paras 5, 7, and 235; Commission, ‘Report on Competition Policy 2011’ COM(2012)0253 final, para 2 and Section 2.1; Article 82 Guidance, paras 19, 30, and 86; Commission, ‘A single market for 21st century Europe’ COM(2007)725 final, para 2.1; Guidelines on the Assessment of Horizontal Mergers [2004] OJ C31/5, para 269; ibid, para 61; Commission, ‘Guidelines on Vertical Restraints’ [2000] OJ C291/1, paras 7 and 159; Article 81(3) Guidelines, paras 13, 21, 33, and 104, Commission, ‘Productivity: The Key to Competitiveness of European Economies and Enterprises’ SEC(2002)528, para 25(2); Commission, ‘Regulation on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices’ [1999] OJ L336/21, para 3. 162 See e.g. the Consumer Rights Directive 2011/83/EU contains provisions related to mere information requirements (Articles 5 and 6); formal requirements (Articles 7–8); the right of withdrawal (Articles 9–16); and delivery (Article 18), passing of risk (Article 20), communication by telephone (Article 21), and additional payments (Article 22)). Likewise, see the Product Liability Directive Article 1; Unfair Terms Directive Article 3; Unfair Commercial Practices Directive Article 5 (unfair commercial practices), Articles 6–7 (misleading commercial practices), and Articles 8–9 (aggressive commercial practices). 163 See e.g. ‘The rules designed to guarantee the quality, safety and efficacy of medicinal products’ (recital 20 Directive 2001/83/EC (consolidated) [2001] OJ L311/67.). See likewise Article 12 Regulation 726/2004 [2004] OJ L136/01. 164 Council, ‘Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on a Mandatory Transparency Register’ No. 5655/21 2021, 21. 165 See e.g. the Register’s non-application to the Council permanent representations of the Member States in Brussels. Formal inclusion of industry in expert groups established by the EU institutions are 159 160

370  Research handbook on the politics of constitutional law Related and significant challenges also exist at the national level.166 Lobbying regulations nonetheless offer some potential; there is no legal reason why rules aimed at empowering citizens and other stakeholders in decision-making processes and at implementing equity in representation could not be enacted. Such rules could rectify the imbalance in lobbying capacities between corporate interests and other stakeholders like private individuals and civil society organisations.167 They offer significant (though nonetheless limited) opportunities to improve both input and output legitimacy in contemporary EU decision-making processes, to restrict the future exercise of corporate power over EU decision-making bodies, and to remove the hurdles erected by the outsized financial resources of corporate lobbies to the reversal of the past exercise of corporate power over the EU constitutionalisation process. Nonetheless, they would not in and of themselves execute this reversal; lobbying regulations will only look forward to future harms, rather than deal with those already enacted and entrenched in the EU constitutional order or with the problem of corporate effectiveness at the ECJ. Other avenues for tethering corporate power warrant further investigation. Existing constitutional principles like openness, democracy, and the rule of law could be applied to the restriction of corporate power, or a set of general rules that are concrete expressions of these principles and applicable to corporate interests could be established. Yet, again, rules designed to limit present and future exercises of corporate power will not account for the present corporate freedom to operate in an integrated liberal market economy, an operation that further constitutes corporate power, if they do not directly confront the past exercise of corporate power that produced this constitutional order. It is time to think seriously about how corporate power might be reshaped in the same sphere of activity that has done so much to engender it: the EU constitution.

5. CONCLUSION We began this chapter by presenting a brief narrative of a historical interest group analysis, showing that corporate interests were consistently responsible for placing the European economic integration objective on the political agenda, for making concrete proposals for the content of EU constitutional instruments, for exerting pressure on public actors to realise their constitutional obligations regarding liberalisation, and for pursuing liberalisation through European and (on the basis of European law) national courts in the absence of political progress. We conceptualised these findings as the past exercise of corporate power to advance

also excluded from the register’s scope. See on this the assessment by ‘The EU makes the Transparency Register mandatory’ (2021). 166 European Parliamentary Research Service, ‘Transparency of Lobbying in Member States’ [2019] PE 649.411. 167 In 2016 (under the non-mandatory scheme) it was reported that in-house lobbyists and trade associations and professional consultancies and firms engaged in 40% more lobbying than all other groups: see Dellis & Sondermann (2017), chart 1. The digital industry, which is the biggest current corporate lobbying spender, ‘spends over € 97 million lobbying the EU Institutions per year and employs 1452 lobbyists on its behalf’: Corporate Europe Observatory and LobbyControl, ‘The Lobby Network – Big Tech’s Web of Influence in the EU’ 10 https://​corporateeurope​.org/​sites/​default/​files/​2021–08/​The​ %20lobby​%20network​%20​-​%20Big​%20Tech​%27s​%20web​%20of​%20influence​%20in​%20the​%20EU​ .pdf.

The politics of the constitutionalisation of corporate power in Europe  371 corporate interests and over other stakeholders or decision-makers in the constitutionalisation process. We then elaborated upon two core present implications of this past exercise of corporate power. We argued that the constitutionalisation of the internal market project has contributed to constituting corporate power by restraining the capacity of public power to intervene in an economic order that suits corporate interests, while not simultaneously restraining corporate power through constitutional obligations for various economic, political, social, and environmental harms to be avoided. We also argued that, as a result, the constitutionalisation of the integrated liberal market economy fails all three basic measures of EU democratic legitimacy. Finally, we surveyed the existing patchwork of legal provisions applicable to corporate interests and showed that they are insufficient for tethering the corporate power constituted by the constitutionalisation of the integrated liberal market economy. We nevertheless offered some optimism by pointing to the limited but positive potential effects of lobbying regulation on both the operation of corporate power and the EU’s democratic legitimacy. However, a full solution to the problem of corporate power in the EU constitutional order must take account of the fact that corporate power is historically constructed. That is to say, the structures that empower corporate interests in the present were generated in the past. Confronting the problem of corporate power must therefore entail confronting the historical injustices of the EU constitutionalisation process.168 It is in the nature of historical injustices to require solutions that step radically outside our existing, historically constructed frameworks. One such solution is nothing other than the deconstitutionalisation of the internal market.169

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We recommend, for thinking about past-present relationships in a corporate power context, Srivastava (2022). 169 See further Scharpf (2017). 168

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21. Advocates general and the court of justice: the early years Margot Horspool

1. INTRODUCTION Hassall and Veraldi argue in the preceding chapter that the origins of the European Union (EU) were shaped by the views of people strongly influenced by corporate actors. Here I turn to the EU’s early years to describe the influence of its first two Advocates General (AGs). Each had a troubling history of action during the Nazi era, and each made important contributions to the development of an economically integrated Europe committed to political liberalism. Their stories complicate simple morality tales in which the work of people complicit in evil regimes is forever tainted by their histories and, as I suggest in conclusion, may illuminate controversies about the relationship between jurisprudence – and in particular positivism – and a lawyer’s actions in supporting both evil and good regimes. The EU has undergone many changes since the earliest foundation of its first institutions, including changes to the first version of its Court, the Court of Justice of the European Coal and Steel Community (ECSC) by the Treaty of Paris in 1953. Although the other Institutions underwent considerable change both in name and in powers the Court remained relatively unchanged in its powers and composition. It remains firmly based on the Civil Law tradition, such as collegiate judgments, no dissenting opinions, down to the consistent retention of the French language as the official language of the present-day Court of the Justice of the European Union (CJEU). This chapter takes a look at the earliest developments leading to the EU, concentrating on the particular role played by the earliest Advocates General since the beginning of the European integration project. I will also look at how the first two AGs were chosen. In the late 1950s, I had the privilege of knowing and working as an interpreter for (and with) the very first Advocates General (AGs) of the European Court of Justice (then of the European Coal and Steel Community), the Frenchman Maurice Lagrange and the German Karl Roemer, and continued to do so for their successors throughout the 1960s and beyond, up to the last British Advocate General Eleanor Sharpston. It should be remembered that the UK did not join the European Community until 1973. During that period the ECSC had just four official languages, French, German, Italian and Dutch. I shall concentrate in this contribution on the early Advocates General I knew from my work as an interpreter for many years at the Court of Justice in Luxembourg. I particularly remember interpreting the Opinion of AG Roemer, in what is seen by many as the most important case in European law, van Gend en Loos v. Nederlandse Administratie der Belastingen.1 I was impressed by AG Roemer’s Opinion, which I interpreted, as I thought his reasoning on clear traditional grounds of comparative and international law was very convincing. There 1



Case 26/62 [1963] van Gend en Loos ECL1:EU:C:1963:1.

377

378  Research handbook on the politics of constitutional law was palpable excitement on the day of the ruling by the Court, which did not follow him, with unusual interest shown by the press and others. After a relatively calm period preceding de ruling in van Gend previous Court rulings this came as a veritable thunderbolt, although previous AG’s Opinions had prepared the way. It may be thought initially that for a number of reasons the function and position of the first AGs , Roemer and Lagrange would not be considered to be of the same importance as that of the judges of the European Court of Justice, or indeed that of their successors, their numbers much increased, after the Court became the Court of the EEC, the EC, and finally of the European Union. However, writing today there is ample evidence of their importance.

2.

THE COURT OF JUSTICE OF THE EUROPEAN COAL AND STEEL COMMUNITY

It is clear from the description of the debates leading up to the creation of the European Coal and Steel Community in 1952 and the entry into force of the ECSC Treaty of Paris in 19532 that although the inclusion of the Court itself in the draft Treaty encountered little difficulty, the need for the inclusion of Advocates General did not become clear, or in any event did not meet with general approval, until after the draft text of the Treaty had been already finally approved. Thus, the Advocate General and Registrar were, in the words of Maurice Lagrange, ‘slipped in’ to the Protocol on the Statute of the Court of Justice of the ECSC annexed to the Treaty, which had the same legal force as the Treaty itself. When Lagrange looks back on the negotiations, he emphasises the leading role played by France in all aspects of the proceedings, ‘the French delegation as the unquestioned leader’ and of his own as the only judge on the team of negotiators. Some commentaries even mention him as ‘having drafted the Treaty’.3 The French leading role can be seen in all the salient points of the negotiations: the choice of the official languages,4 and of the seat of the ECSC, the adoption of French as the sole official language of the Court of Justice. Anecdotally, as against the relatively smooth passage of the adoption of the Court of Justice, the debates on the choice of languages and on the location of the High Authority as the main institution of the ECSC in particular took some considerable time, suggestions varying from the Hague, Paris, Liège, Luxembourg, Brussels, and even Turin.5 Here I focus the on influence of the French model on the way the Court was set up. Though institutions like Advocate General existed in four other Member States, they did not exist in Germany, the other large economy central to the European project. The Advocate General was modelled on the French ‘Commissaire du Gouvernement’. This institution supported the

Lagrange (1979), 127–35. Article 11 Protocol on the Statute of the ECSC Court of Justice and Article 32a ECSC Treaty, inserted by the Convention on Certain Institutions Common to the European Communities associated with the Treaties of Rome. 4 Spierenburg & Poidavin (1993). 5 There were many ministerial meetings between May 1951 and July 1952 which each time ended in disagreement on the subject. This culminated in near complete deadlock in July 1952 when Schuman had proposed the Saarland as a truly European venue as it had been promised European status. Whilst waiting for this to happen Strasbourg would be the provisional venue. Ibid, 44–56. 2 3

Advocates general and the court of justice: the early years  379 decision to dispense with dissenting opinions, based on the argument that there was no need because the Advocates General would guarantee an independent opinion.

3.

MAURICE LAGRANGE

From the outset Maurice Lagrange played an important role in the years of debate leading up to the creation of the ECSC and of the Court of Justice of the ECSC. He then continued, as only one of the two Advocates General on the Court at the time, until the setting up of the European Economic Community (EEC) in 1957 when their number was increased, initially to four, then to eight, and ultimately to eleven.6 However, when looking at what has since emerged concerning the period before he became an Advocate General, doubts might arise whether he should ever have been considered for the post. He had been a member of the Conseil d’Etat, the supreme administrative court, or occupied positions closely connected with the Conseil d’Etat, since before World War II. Yet, his CV on the website of the European Court of Justice does not mention the period between 1934 and 1945. Lagrange first was an ‘auditeur’ at the Conseil d’Etat in 1922 after having graduated from the Ecole Libre des Sciences politiques. He became ‘maître des requêtes’ in 1934 and in 1942 became a member of the Conseil d’Etat. He shared the ideas of those who wished for a regeneration of the French nation after the defeat, capitulation, and occupation by Germany and the installation of the Vichy government. He supported the ‘révolution nationale’ of Pétain and the Vichy government.7 In 1940 he was seconded from the Conseil d’Etat to become a civil servant of the general secretariat of the French government. At the end of 1940 he was in charge of coordinating the ‘cessation of activities’ of Jewish civil servants in all ministerial departments applying the Jewish Act published in the Official Journal 18 October 1940. In February 1941 he became the adviser for Jewish affairs charged with the coordination of the anti-Jewish measures of Admiral Darlan, Vice President of the Council of Ministers. He proceeded to deal with the removal of 2,900 Jewish officials, ensuring that there were few exceptions for ‘anciens combattants’ and Jews having rendered ‘exceptional services’.8 An article in the journal Le Banquet published in the second half of 1996 contains large excerpts of a routine interministerial meeting,9 which took place at the Hôtel Thermal in Vichy at 10 am, 16 December 1940, two months after the publication of the Law on the status of Jews. The meeting of senior officials and members of the cabinet, conducting what was described as ‘routine administrative work’, was chaired by Maurice Lagrange.10This meeting is described in more detail by Marc-Olivier Baruch.11 There is an examination of the pension rights of civil servants removed from the administration because they are Jewish, before the meeting Article 252 TFEU and Declaration No.18 annexed to the Final Act of the Intergovernmental Conference which negotiated the Treaty of Lisbon. 7 See also Fabre (2000), 23–41 and the description in note 14 of Lagrange’s discussing the method of interpretation in April 1943 of the first version of the law based on the intentions of the legislator. 8 See a full discussion in Baruch (2008). 9 From two archives in Le Monde. 10 The commentator describes verification of the proper application of the law ‘in the same way that one would deal with the malfunctioning of the vegetable market’. 11 Baruch (2008). 6

380  Research handbook on the politics of constitutional law turns to the requests for derogation for those who have rendered exceptional services to the French state in the literary, scientific and artistic fields. Should all such requests be systematically referred to the Conseil d’Etat? M. Lagrange thinks not: ‘There are only five or six such really exceptional cases in all of France’. The meeting then examines the definition of ‘Jew’ in Article 1 of the law. ‘Any person with three grandparents of the Jewish race, or with two grandparents of that same race if their spouse is him(her)self Jewish is considered as Jewish’.12 Before the meeting Lagrange had circulated a communication from Garde des Sceaux i.e. the Justice Minister, ‘inspired’ by the German Nazi legislation, which apparently nobody had received. Lagrange is annoyed by this as in his view ‘these are questions which need to be dealt with immediately’. He therefore reads the circular, which proposes as a priority to take into account the religious criterion and the patronym. Lagrange observes that he knows ‘people called Moses (Moïse) who have never been Jews’. At the end of the meeting there is a discussion of the derogations in favour of ‘anciens combattants’. Jean Devolvé, an official from the ministry, opines that acts of courage of the person concerned do not in any way indicate that members of their family ‘will have the same qualities’. In 1942 Lagrange rejoined the Conseil d’Etat when Laval had taken charge of the Vichy government. In the formation of the Court of Justice after the war, it was clear from his numerous contributions that, from the outset, Lagrange’s view was13 that the office of Advocate General was ‘evidently inspired’ by the example of the French Conseil d’Etat’s ‘Commissaire du Gouvernement’ as a member of the judiciary, acting ‘with complete impartiality and independence’, even using the same words in the European Treaties. It was also homage to a national institution that had proved its worth. However, he concedes that this applies only to administrative courts of other countries, whereas in the general law courts of the then six Member States the position of ‘advocate general IS known’. However, in none of the Member States is the function of an advocate the same as that of the European Advocate General.14 In an article written in 197615 setting out his memories in great detail his views have the benefit of hindsight, but there is also an attempt at foresight in part IV. He does not pretend to describe the history of the Schuman Plan but quotes it to show that it simply refers to a High Authority.16 It could not be the intention of the French government that such an institution would enjoy unlimited powers in the field of production of coal and steel. Monnet in his Mémoires17 states the need for remedies against its decisions and the idea of a ‘tribunal arbitral’ as well as that of political responsibility of an executive to a parliamentary body appeared early on. A proposal containing 40 articles on this basis was submitted to the Paris Conference shortly after it had opened in the ‘Salon de l’horloge’ by Robert Schuman on 20 June 1950. On a suggestion by Monnet, Lagrange was asked in early October to take part in the proceedings. He had already been involved in informal discussions. Monnet recalled in his 12 My translation; ‘Est regardée comme juif toute personne issue trois grands-parents de race juive, ou de deux grands-parents de la même race si son conjoint lui-même est juif.’ 13 Maurice Lagrange in his leaving speech before the full Court 8 October 1964. 14 See e.g. advocaat generaal in the Netherlands, Staatsanwalt in Germany. 15 Melanges Fernand Dehousse. la construction éuropeenne, volume 2 (Fernand Nathan Editions Labor, 1979). 16 ‘By pooling basic production and by instituting a new High Authority whose decisions will bind France, Germany and the countries which will join, this proposal will lead to the realisation of the first concrete foundations of a European federation which is indispensable for the preservation of peace’. 17 Monnet (1976), 377.

Advocates general and the court of justice: the early years  381 Memoires18 that there was a need to create ‘a genuine legal person governed by public law’ called the European Coal and Steel Community with defined objectives and institutions, including a Court of Justice. As a member of the French Conseil d’Etat it was not difficult to envisage that such a body tasked with monitoring procedural and substantive compliance with the rules would perform a function similar to that of an administrative court hearing an action for annulment. In spite of initial ‘surprise and objection’ from states with an international rather than an internal state-like approach such as the Netherlands, the proposals won the day and Chapter 4 Articles 31 to 45 of the ECSC Treaty covering the Court of Justice were drafted in record time by Lagrange’s Legal Affairs Committee. The judicial system is clearly modelled on French administrative law, ‘with all modesty to be seen as a tribute to the historical activity of the Conseil d’Etat’.19 In Part IV of his paper Lagrange then attempts some predictions, which he notes will be difficult in view of the ‘imprecision’ surrounding the creation of a European Union for which there are, at the time of writing in 1976, no concrete attempts at plans concerning the Institutions. He refers to the Tindemans report20 making such proposals, but as yet those ideas have not been adopted by the Member State governments. Although the Tindemans report aims at reducing the need for a new treaty to a minimum, in Lagrange’s view such a structure, however minimal, will be necessary to obtain a European Union. Absent such a structure the Union would simply be a periodical meeting of heads of State of Government just like the ‘so-called ‘summit meetings’ held up to the present time. He notes that the Court, invited like the other Institutions to make suggestions for such a ‘European Union’, also pointed to the as yet imprecise content of the term and simply stressed the need for a necessary coherence between the present Community structure and that envisaged, to have available the necessary legal instruments and to bear in mind the limits beyond which the acquis communautaire would be endangered, in particular if the rights of the individual were to be disregarded. Thus he sets out the Tindemans view that, in order to preserve such coherence the experience acquired in the last 20 years should be applied to achieve this. The Court, in the words of Lagrange, can achieve some of this progress in the context of the European Union as well as within the existing Treaties by lifting the restrictions under Article 33 ECSC and Article 173 EEC and grant individuals the right to obtain the annulment of any unlawful decision in a situation where they are directly concerned. He also stresses the need for a legislative body enacting positive law which the Court can enforce. Even if there would be a directly elected European Parliament, a democratic solution would not seem to be close. The Court, however persistent in its methods of interpretation of the existing Treaties, cannot go beyond the positive law texts, thus the fear is that it will simply remain a mere arbiter with ill-defined powers, with no guide other than considerations of expediency or of ‘general principles of law’, which are always difficult to identify when not connected to rules of objective law. Thus, there may arise the threat of ‘government by the judges’ which the Court has so successfully managed to avoid up to now.

Ibid, 379. La Cour de Justice des Communautés Européennes du plan Schuman à l’Union européenne in Mélanges Dehousse, op cit. n 16. See also Address given by Advocate General Maurice Lagrange at the formal sitting of the Court on 8 October 1964, at https://​www​.cvce​.eu/​en. 20 1976 Bulletin of the European Communities, Supplement 1/76. 18 19

382  Research handbook on the politics of constitutional law AG Lagrange delivered more than 40 Opinions in cases brought under the ECSC Treaty. In Fedechar21 Lagrange describes the Court as not an international court but the court of a Community created by six States on a model which is more closely related to a federal than to an international organisation. Although the Treaty which the Court has the task of applying was concluded in the form of an international treaty, the rules of law derived from the Treaty constituted ‘the internal law of that Community’.22 His Opinion delivered in Case 28/30 da Costa en Schaake,23 which was considered to be identical to van Gend en Loos, still manages nearly six pages of reasoning re Article 177 EEC and the obligation to refer, with comparative law references to not just French, German and Italian courts but also to the International Court of Justice. The conclusion he reaches in the end, however, repeats verbatim the Court’s ruling in van Gend en Loos, as the Court itself did. Not many books or articles at the present time include the Advocate General’s Opinion, in common with many other references to the early ECSC cases.24 In the absence of previous case law and opinions available from the European Court of Justice in the early European cases, the Advocates General of course would base their reasoning wholly on proceedings and judgments of their own national courts or indeed on decisions by international courts. Lagrange’s influence on the European Court of Justice in its early days was substantial. As a member of the Conseil d’Etat and having not only taken part in the debate leading to the Treaty of Paris and having been instrumental in the creation of the Advocate General position for the new Court of Justice, he was also proposed by Monnet as one of the two new Advocates General on the Court. His Opinions on early cases involving the High Authority contain many elements which shaped the Court’s case law in later cases such as van Gend en Loos and Costa v. ENEL. For example in the very first Case, Case 1/54 France v. High Authority,25 although not wholly following Advocate General Lagrange as to the result, the Court did agree with him on his approach to the interpretation of Articles 2, 3 and 4 of the ECSC Treaty.26 The Court agreed that neither literal interpretation of Article 60(2), nor interpretation of Article 60(2) in the light of the whole of Article 60 was sufficient and that the question in dispute had to be interpreted in relation to the Treaty in its entirety.27 However, in Fédéchar28 the Court did not deem it necessary to deal in detail with AG Lagrange’s extensive arguments based on international and national law but stated that without having recourse to a wide interpretation ‘it is possible to apply a rule of interpretation generally accepted both in national and international law, according to which the rules laid down by an international treaty or a law presupposes rules without which that treaty or law would have no meaning …’. His most well-known Opinion is undoubtedly that in Case 6/64 Costa v. ENEL. His Opinion restates the direct effect principle enumerated in van Gend en Loos, albeit only in respect of

Case 8/55 .Fédération Charbonnière de Belgique v. High Authority [1954–1956] ECR 245. A. Arnull in ‘The many Ages of the Court of Justice’ 2C The work of the new Court, EUI Working Paper AEL 2020/02. 23 [1963] ECR 31, 40. 24 See Greaves (2004). 25 EU:C:1954:7. 26 23 Articles 2, 3 and 4 of the Treaty referred to at the beginning of Article 60(1) ECSC Treaty, ‘Pricing Practices contrary to the provisions of Articles 2, 3 and 4 are prohibited’. Article 60(2) sets out the aims in Article 60(1) in more detail. 27 See Edward (1996), 8.5 The Pre-Accession cases. 28 .Case 8/55 Fédération Charbonnière de Belgique v. High Authority [1954–1956] ECR 245. 21 22

Advocates general and the court of justice: the early years  383 some of the EEC Treaty Articles concerned in this case,29 and the clear statement on primacy of European Community law is contained in the Court’s judgment which also follows the AG in confirming the capability of Treaty Articles as well as Regulations to have direct effect.

4.

KARL ROEMER

Turning to Advocate General Roemer, very little is known about his activities and career before he became Advocate General in Luxembourg. The details on the website of the European Court of Justice contain details of his education and activities after 1947: Karl Roemer (1899–1984). Studied political economy and law (Cologne, Munich, Freiburg, Bonn). Assistant judge and judge Cologne 1932, member of the Berlin Bar until 1946; Lawyer at the Landgericht and Oberlandesgericht Saarbruecken; from 1947 to 1952 work principally concerned with foreign law, defended German interests before authorities and courts under the occupying regime, and before foreign authorities and courts; special missions on behalf of the Federal government before the establishment of diplomatic services abroad, participated in the work of the Sonderstelle fuer Geld und Kredit in Homburg, in preparation for monetary reform (1947–1948) , before becoming Advocate General to the European Court of Justice in 1952 until 1964.

It has been reported that he was in Paris during the German occupation from 1940 when he was managing French companies and banks for the Third Reich.30 He is also reported as having been involved in the negotiations and lobbying for the release of the more than 850 war criminals by France between 1949 and 1962 as part of an extensive network of lawyers, clergymen and diplomats centrally coordinated from the German mission in Paris and the headquarters of the Bonn Foreign Office.31 He is at the same time described as being a member of the Berlin bar during this period until 1946. Apart from having married Adenauer’s niece there is little information as to how and why he was chosen to take part in the negotiations in Paris leading up to the ECSC Treaty and then become one of the first two Advocates General of the Court of Justice in 1953. Roemer has become well-known particularly because of his Opinion in Case 26/62 van Gend en Loos en de Nederlandse Administratie der Belastingen32 which was of course not followed by the Court. This was not unexpected. There are previous cases brought under the ECSC Treaty which foreshadow the direction the Court of Justice would take in its ruling. For example in Case 7/54 Industries Sidérurgiques Luxembourgeoises,33 where Roemer was the AG and the Court made several references to his Opinion, the Court stated: ‘The Court has

Articles 37, 53, 93 and 102 of the Treaty. See Anderson (2021), 145, 146. 31 Dissertation by Rene Staedler, Doctor of Philosophy (2020), ‘The Price of Reconciliation: West Germany, France and the Arc of Postwar Justice for the crimes of Nazi Germany, 1944–1963’ note 6 mentions Karl Roemer and Erich Schwinge, an early Nazis supporter and described as a ‘military lawyer’ on the German side (see his Wikipedia entry), as prominent examples of an extensive network of lawyers, clergymen and diplomats, centrally coordinated from the German mission in Paris and the headquarters of the Foreign Office in Bonn who negotiated and lobbied for over 850 releases of war criminals in France between 1949 and 1962. 32 [1963] ECR 1. 33 [ECR 1954–1956], 195. 29 30

384  Research handbook on the politics of constitutional law already decided in its judgment in Case 1/54 … that Articles 2, 3 and 4 of the Treaty constitute fundamental provisions establishing the common market and the common objectives of the Community… In authorizing the High Authority to define the prohibited practices, the Treaty obliges it to take into account all the aims laid down in articles 2, 3 and 4’. For the same reasons, the provisions of Article 4 are sufficient of themselves and are directly applicable when they are not restated in any part of the Treaty.34 Although the Court did not follow AG Roemer in van Gend it is doubtful that he deserved the epithet of ‘Umgekehrter Wetterfrosch’ (reverse weather frog) quoted later in Die Zeit in anticipation of the judgment in Case 6/72 Continental Can,35 where in fact the Court chose to follow the AG’s Opinion. It does not seem that he was considerably more unsuccessful in the number of Opinions not followed by the Court, compared to the Opinions of the majority of other AGs, if we consult the scant statistics on the point.36

5. CONCLUSION As the two first Advocates General at the European Court of Justice, both Maurice Lagrange and Karl Roemer occupy a unique position. Their appointment was made at a time when the selection criteria were focussed on the circumstances of the moment, only seven years after the end of World War II, when the desire to achieve a European Community and to make a decisive break with the past was overwhelming and the absolute priority for the founding fathers, Jean Monnet and Robert Schuman and many others. Thus, the choice of personalities for the Court was based on very different premises from those which would exist today. The founders of the European project all came from a generation which was adult during the years of World War II and their activities during that time were not always known or necessarily investigated to a large extent. The desire was to look forward and not back and there was a palpable enthusiasm for the creation of an entity which would bring European countries together in a structured organisation with institutions of a supranational character. The first two Advocates General, selected from France and Germany so soon after the end of hostilities, exemplified this desire – and the compromises it entailed. We might speculate, though, about the implications of the personal histories of Lagrange and Roemer for a jurisprudential-sociological argument made after 1945 and 1989. According to that argument some lawyers who practiced during the prior abhorrent regimes adhered to a positivist view of law that treated the justice of a legal provision as independent of its legal validity. Such lawyers, the argument went, were fully qualified to occupy post-transition positions when they would again simply treat the positive law as the source of legal obligation – now, though, an admirable rather than an evil one. One might note, however, that were Lagrange and Roemer positivists of that sort their work as Advocates General showed that positivism provided the opportunity for some degree of creativity in the service of the larger goal of European integration – and, one might say, justice. If so, one can wonder whether they

Edward (1996), 8.5.2. ‘die Zeit Nr 48/72 asking whether his Opinion in Case 6/72 Continental Can v. Commission [1973] 215 would be again be ignored by the Court in its anticipated judgment. 36 Zakharenko (2012). 34 35

Advocates general and the court of justice: the early years  385 demonstrated similar creativity during the war years, and if not, why not? Further research here might be required.

REFERENCES Anderson, Perry. Ever Closer Union?: Europe in the West (Verso, 2021). Baruch, Marc Olivier. (2008). ‘Du regard de la loi aux intentions du législateur. La technique juridique au service de l’antisémitisme d’Etat’ en France, 1940,’ Droit et Cultures 56: 19–34. Edward, David. ‘Judicial Activism – Myth or Reality’ in Legal Reasoning and Judicial Interpretation of European Law: Essays in Honour of Lord Mackenzie Stuart (Hampshire Trenton Publishing, 1996). Fabre, Philippe. (2000). ‘L’Identité légale des Juifs sous Vichy, la contribution des Juges,’ Labyrinthe 7: 23–41. Greaves, Rosa. (2004). ‘Elected Opinions delivered by Advocate General Lagrange,’ 6: 83–103. Lagrange, Maurice. ‘The Court of Justice of the European Communities from the Plan Schuman to the European Union,’ in Melanges Fernand Dehousse , vol. 2 (Paris & Brussels, 1979). Monnet, Jean. Mémoires (Paris, Fayard, 1976). Spierenburg, Dirk & Raymond Poidavin. Histoire de la Haute Autorite du Charbon et de l’Acier, Une experience supranationale (Bruxelles, Bruylant, 1993). Zakharenko, Roman. (2012). ‘Invisible Influence? The Role of the Advocate General in the European Court of Justice in the Development of Community Law,’ http://​hdl​.handle​.net/​1961/​10724.

22. The neo-liberal bias of the EU constitutional order: a critical analysis Bojan Bugarič

1. INTRODUCTION During the last three decades the European Union evolved into a new kind of constitutional order making it difficult to pursue a genuine progressive political agenda. With the adoption of the Single European Act (SEA) in 1986 and the Maastricht Treaty (TEU) in 1992, the European Union entered a new phase of integration which has radically transformed the EU capacity to combine the liberalism of a common economic market with redistributive social policies either on the national or the EU level. As Martin Höpner and Adam Schäfer argue, the European Union has come closer to Hayek’s neoliberal vision of inter-state federation than to the socially embedded liberal economic regime as envisaged by its founding fathers.1 Their vision, codified in the first EU Treaty in 1957,2 was somehow different. As most convincingly shown by historian Alan Milward, the original constitutional settlement represented a compromise between international free trade and domestic state interventionism, a European version of what was later to become known as ‘embedded liberalism’.3 Today many scholars of the European integration argue that the EU constitutional order embodies a neoliberal bias effectively ruling out a progressive agenda by structurally privileging the interests of capital against the socio-economic rights and interests of the working class.4 Moreover, several important economists and political scientists write about a ‘political trilemma’ of the European Union making it difficult5 if not structurally impossible6 to combine common economic market and redistributive welfare policies on the EU level. In its most extreme form, the argument about the neoliberal bias of European constitutional order postulates that it is structurally impossible to develop an EU version of a ‘social market economy’. Fritz Scharpf, one of leading scholars of European integration, argues that the socio-economic asymmetry of European law is caused by structural conditions whose effect does not depend on the ideological orientations of members of the Court or the Commission. For this same reason, it can hardly be corrected through changes in the party-political composition of the Council or through elections to the European Parliament.7 Höpner & Schäfer (2012). Treaty Establishing the European Economic Community (1957). 3 Ruggie (1982). 4 Veraldi & Hassall (2023); Alexander Somek, ‘European Constitutionalism: The Neoliberal Drift,’ (LPE blog, 4 November 2019) https://​lpeproject​.org/​blog/​european​-constitutionalism​-the​-neoliberal​ -drift/​; Nicol (2010); Bickerton (2012); Wilkinson (2021). 5 Rodrik (2011), 220; K.H. O’Rourke, ‘A Tale of Two Trilemmas’, March 2011, Department of Economics and IIIS, Trinity College Dublin, 3. 6 Scharpf (2010). 7 Ibid, 243. 1 2

386

The neo-liberal bias of the EU constitutional order: a critical analysis  387 According to this theory, the law, in the form of the European constitution, determines the politics of the European Union. The European Constitution, a legal superstructure, has, so to speak, a life of its own and crucially determines the base, the relations of production. In other words, progressives are confronted with a distinct EU constitutional order, which, because of its neoliberal bias, radically limits the possibility of achieving the progressive political agenda. If only five decades ago it was still possible to ask whether the Left should be against Europe,8 today the question has to be reframed: is the politico-legal framework of Europe working against the progressive agenda? Are European progressives confronted with a distinct constitutional order, which, because of its pro-market neoliberal bias, radically limits their ability to pursue their own political programme? As Perry Anderson reminds us, Friedrich von Hayek basically foresaw the development of a constitutional structure of an inter-state federation which would structurally limit the ability of electorates to enact dirigiste and redistributive policies.9 The major obstacle that such interstate federation would erect against pursuing redistributive polices is the lack of international solidarity required to sustain such policies.10 When compared with the most recent political developments in the EU, Hayek’s words from 1939 look almost like a prophecy. While not entirely disagreeing with this powerful theory, this chapter offers an alternative explanation for the fundamental asymmetry between the neo-liberal and social agenda in the EU legal order. The crucial reason for the absence of more developed ‘social Europe’ is not only or primarily the structure of the EU constitutional order as such but the reluctance and inability of the progressives to ‘Europeanise’ their social agenda.11 Their thinking and policy proposals concerning ‘social Europe’ have remained firmly embedded in the logic of the nation state. In order to overcome the status quo, the progressives would therefore first need to develop a distinctive European approach to ‘social Europe’. Next, I argue that while constraints of the EU economic constitution are significant, we should avoid the ‘naturalisation’ of the EU project, ‘depicting it as an automatic upshot of a wholly impersonal logic’.12 As Ben Rosamond argues, such a view downplays the contingency of that logic.13 As some more recent political and legal developments in Europe show, the EU constitutional order is more flexible than that depicted in this theory. The reforms of fiscal rules, economic governance, and establishment of the EU Next Generation programme demonstrate flexibility of the EU constitutional order. In the first four sections of the chapter I chronicle four different episodes of the institutional settlement between the market and the social in the EU legal order. In the concluding section I discuss some more recent polices and proposals that cannot be easily squared with the neoliberal thrust of the EU constitutional order and their implications for future developments of European constitutionalism.

8 9



12 13 10 11

Nairn (1972). Anderson (2010), 64–65. Hayek (1952), 266. Moschonas (2009). Hay & Wincott (2012), 132. Rosamond (2002).

388  Research handbook on the politics of constitutional law

2.

THE EUROPEAN RESCUE OF THE NATION STATE

The relationship between the European Left and European integration was always a complex one. The European Economic Community (EEC), from its inception, was not a Left project. George Ross argues that the real movers of European integration were Centre-Right Christian Democrats who were haunted by World War II.14 The European Left of that era was more focused on national systems of economic and political development and was not very enthusiastic about European integration. However, with the exception of the two largest Communist parties (PCF and PCI), other socialist or social-democratic parties in principle did not oppose the project of European integration.15 As mostly opposition parties, they did not leave their imprint on the construction of an integrated Europe. Their primary concern was to keep the welfare state and its redistributive policies firmly within the jurisdiction of the nation state. This aspect is nicely captured by Kiran Klaus Patel who argues that when it comes to labour markets ‘the ball remained in the court of the member states, whose elites often understood European integration as a means to consolidate and expand the welfare state at the national level.’16 A constitutional compromise reached during the negotiations leading to the Treaties of Rome was to decouple economic integration from social protection issues.17 Whereas the first was constitutionalised in the ‘economic constitution’, ‘the social’ was put on a separate track and remained mostly national.18 This fact is often overlooked by those accounts which argue that the Treaties of Rome represented an overwhelming victory of neo-liberalism over the French attempt to institutionalise a more regulated Europe.19 In reality, both Christian Democrats and Social Democrats were, although for different reasons, strong supporters of the welfare state. Hence, both camps had their own reasons not to transfer social policy to the European level.20 The Treaties of Rome thus represented a compromise between two different visions of European integration. On the one hand we find German ordoliberals, strongly represented in the German delegation, strongly favouring economic freedoms as the key instrument of integration,21 while on the other hand both Christian Democrats and Social Democrats embraced the vision of regulated capitalism at home combined with open trade on the European level, or the ‘Smith abroad, Keynes at home’ compromise. Such a constitutional compromise can also be explained by the fact the Treaties of Rome were signed in a particular socioeconomic context, i.e., during the golden age of the Keynesian welfare state. As a consequence, the constitutional settlement codified in the Treaties of Rome can be best described as a model of embedded liberalism, which tried to accommodate open markets aimed at securing economic growth with domestic political intervention protecting ‘societies from capitalism’s destructive Ross (2011), 321. Sassoon (1996), 229. 16 Patel (2020), 107. 17 Scharpf (2002). 18 Patel (2021), 107; Joerges (2010); Milward (2000), 216; Andry (2022). 19 Pollack (2000), 271–72. See also Patel (2020), 107. 20 P. Manow, A. Schäfer & H. Zorn, ‘European Social Policy and Europe’s Party-Political Center of Gravity, 1957–2003’, MPlfG Discussion Paper, 2004/6, 19; Menendez (2013). 21 Ordoliberalism is a German version of neo-liberalism developed in the 1930s by the Freiburg School. See Rieter & Schmolz (1993). 14 15

The neo-liberal bias of the EU constitutional order: a critical analysis  389 and destabilizing tendencies’.22 The first European constitution therefore consisted of rules written in the Treaties themselves and implicit rules excluding majority of social issues from the ambit of the EEC jurisdiction.23 As the EEC during the first two decades did not evolve into more than a customs union, the national systems of social protection could expand rapidly. As a consequence, the European ‘economic constitution’ could coexist easily with nationally based systems of social protection and development. While Member States could gain from the advantages of the ‘common market’, at the same time, they were able to continue with the post-war state led development of national welfare states. As argued by Alan Milward, the aim of European integration was to ‘rescue the nation state’: The problem genuinely was how to construct a commercial framework which would not endanger the levels of social welfare which had been reached...The Treaties of Rome had to be also an external buttress to the welfare state.24

As long as this was possible, the Left did not have strong incentives to challenge the project of European integration. Rather, the Left ‘remained by and large a passive bystander, occasionally voicing criticism yet without challenging the project at its core’.25 In other words, even though the Treaties of Rome bore the strong imprint of economic liberalism, such framework was perfectly compatible, both for the Left and the Centre-Right, with nationally based welfare states. The turning point came in the 1980s. After a turbulent decade of stagnation and ‘eurosclerosis’, European integration gained a new momentum with the adoption of the Single European Act (SEA) in 1986 and the Maastricht Treaty (TEU) in 1992. As argued by Andrew Moravcsik, both revisions of the original Treaty were the consequence of a broad political convergence among the key Member States (Germany, France and Britain) towards the neoliberal goal of creating a single European market.26 The relaunching of European integration thus coincided with a major shift in the political ideology. The golden age27 of the Keynesian welfare state came to an end and gave way to a new powerful ideology – pro-market neoliberalism.

3.

FROM EMBEDDED LIBERALISM TO EMBEDDED NEOLIBERALISM?

With both revisions of the original Rome Treaty, the European Union moved decisively into an economic and a monetary union. The SEA was followed by a massive programme of EC legislation aimed at removing all non-tariff barriers to a ‘single market’ consisting of free movement of goods, services, capital and people. By the target date of the completion of the single market, the end of 1992, 260 out of 279 measures listed in the White Paper had been Berman (2012). Giubboni (2006), 16. 24 Milward (2000), 216. 25 O. Cramme, ‘The power of European integration: Social democracy in search for purpose’, Policy Network Paper 2011, 5. 26 Moravcsik (1998), 317. 27 Marglin & Schor (1992). 22 23

390  Research handbook on the politics of constitutional law adopted in the Council of Ministers, ‘a staggering 95 per cent success rate’.28 It goes without saying that such a result would not have been possible without a major institutional innovation adopted in the SEA – qualified majority voting for single-market measures. However, equally important was the neoliberal consensus among Thatcher, Kohl, and Mitterand on the importance of the single market promising Europe economies of scale needed to compete with rival economies of the United States and Japan.29 As both Andrew Moravcsik and Mark Pollack argue, the SEA was ‘a quintessentially neoliberal project’.30 At that time, centre-right parties enjoyed a strong majority across Europe. France, one of the key Member States, was at that time strongly in Socialist hands, though. According to George Ross, it was Mitterand’s turn from failed domestic Keynesian policies to Europe which crucially contributed to the success of the single market project. Even though European integration did not begin as a left affair, it had been relaunched in the 1980s by an interesting coalition of Kohl, Mitterand, and Delors, where the two French socialist politicians played the leading role.31 With the single market programme and monetary integration, both deeply liberal economic initiatives, at the heart of the relaunch, this new intiative helped to convert Europe to post-Keynesian outlook. Hence, it was French Socialism’s transformation from traditional post-World War II Keynesian leftism to centre-leftism build around the new single market initiative that paradoxically made centre-leftism obligatory for other European Left parties.32 Since the SEA represented ‘a massive advance’ in the opening of the European markets,33 the EC Member States’ autonomy in welfare issues was no longer secure. As the single market became almost a goal in itself, it was possible to argue that many social policy objectives represent non-tariff barriers to trade and as such violate the ‘logic’ of the single market. Consequently, during the next two decades, the EU was able vastly to expand the scope of the single market at the expense of the autonomy of Member States to pursue autonomous welfare policies. According to Fritz Scharpf, the European Court of Justice’s (ECJ) role in this process is usually neglected by the literature explaining the success of these reforms.34 The ECJ’s early case law paved the way for a future reconfiguration of the original balance between the economic freedoms and social rights in the EU legal order. Scharpf argues that ECJ rulings in two early cases, Dassonvile (1974)35 and Cassis (1979),36 crucially limited Member States’ discretion in formulating national policies and announced a new rule of mutual recognition37 which has ‘changed the bargaining constellation and incentives that Member States face in the processes of European legislation. While in the past national law had remained in force

Bache, George & Bulmer (2011), 159. Moravcsik (1991), 42. 30 Ibid; Pollack (2000), 273. 31 Ross (2011), 323. 32 Ibid, 324. 33 Gilbert (2012), 139. 34 Scharpf (2010), 225. 35 Dassonvile, C-8/74, 11.07.1974. 36 Cassis, C-120/78, 20.2.1979. 37 The principle was only encapsulated in the Cassis ruling, but later explicitely formulated in the Commission’s communication: Any product lawfully produced and marketed in one Member State must, in principle, be admitted to the market of any other Member State. See Craig & de Burca (2011), 649; Alter (2009), 142, 143. 28 29

The neo-liberal bias of the EU constitutional order: a critical analysis  391 as long as governments did not agree on a harmonisation directive, the new default condition would be mutual recognition’.38 The paradox is that once the Court of Justice had established basic principles interpreting market freedoms in its own particular way, political bodies of the EU, with their veto position being undermined, had little choice but to follow the court’s case law. Subsequently, the ECJ had extended the reach of its early rulings from free trade to free services delivery, free establishment, free capital movement and the free mobility of workers. This led, according to Scharpf, to a highly asymmetric institutional development: legal integration (integration through law), developed by an ever increasing case law of the ECJ, outpaced political integration impeded by heterogeneous interests of the Member States.39 Due to the orthodox and fundamentalist40 understanding of economic freedoms by the ECJ, where the priority is assigned to the rights of capital holders over socio-economic rights,41 the first asymmetry has also had a strong effect on the substantive direction of subsequent European legislation.42 Unlike in the national constitutional setting, where national courts have to balance the importance of economic and social dimensions, treating them as having an equal constitutional status, in ECJ jurisprudence the social clearly remained subordinate to the economic.43 As argued by Mitchell Lasser, instead of proper balancing, the ECJ simply decides whether free movement rights have priority over other, non-economic social rights. As he further claims, this balancing act always ontologically prioritises market freedoms at the expense of non-economic rights.44 Although with time and new amendments to the original Rome Treaty the line between the economic and the social has become blurred, it is important to emphasise that the social never achieved a constitutional parity with the economic. The ECJ’s judicial interpretation of market freedoms relies on various theoretical assumptions about the role of markets, governments and social policy in a market economy. The crucial flaw of the Court’s doctrine lies in its orthodox subscription to a ‘pre-realist’ understanding of the market economy. One of the key insights of American legal realists was that markets are not pre-political structures with a single natural form but a product of public/political regulation.45 One important implication of this claim is that there are many different forms that a market economy can assume. When the ECJ decides issues which involve balancing of conflicting interests protected by market freedoms on one hand and social rights on the other, it usually relies on a concept of internal market which strongly resembles the concept of a market criticised by American legal realists. Here, the market or internal market is constructed as a non-political structure which exists in a certain ‘natural’ form where public regulation (in the form of social rights) only ex post facto changes

Scharpf (2010), 224. As Gilbert argues, while Cassis judgment provided an important stimuls for reform, we should not overestimate the extent to which the ruling opened the trade barriers within the EC. See Gilbert (2012), 131. 40 Lassser (2014). 41 A.J. Menendez, ‘A proportionate constitution? Economic Freedoms, substantive constitutional choices and dérapages in European Union Law’ in E. Chiti, A.J. Menendez & P.G. Teixera (eds) The European Rescue of the European Union? The existential crisis of the European political project, ARENA Report No. 3/12, RECON Report no. 19, 70. 42 Scharpf (2010), 225. 43 Menendez (n 41 above), 106; Schiek (2017); Garben (2017); Davies (2015); Scharpf (2010). 44 Lasser (2014), 247. 45 Singer (1988). 38 39

392  Research handbook on the politics of constitutional law the character of such a ‘natural entity’. The Court’s jurisprudence on internal market created a concept of market which became a goal in itself: The European Court of Justice is neoformalist in its interpretation of the canonical freedoms of movement of goods and persons in a ‘single market’ in part, as is widely recognised, in order to drape its legislative power in the cloak of legal necessity.46

As a consequence, the ‘economic constitution’ was constructed as non-political text juridified through supranational law, whereas social policy was conceptualised as ‘a categorically distinct subject. It belonged to the domain of political legislation, and, as such, had to remain national’.47 Such de-politicisation of EU constitutional law has had far reaching consequences for a future development of ‘the social’ in the EU constitutional legal order. The expulsion of the social from the constitutional level has paved the way for a particular juristic interpretation of the European constitution. According to Scharpf, it contributed to the fundamental asymmetry between market liberalisation (negative integration) and social protection (positive integration) being now locked in the EU constitutional legal order. While negative integration could be achieved quite easily, positive integration was impeded by a ‘joint decision trap’ preventing governments from agreeing on common EU regulatory standards in crucial social policy areas. Hence, the reconfiguration of the original balance between the economic freedoms and social rights has been crucially shaped by the ‘peculiar’ judicial interpretation of core constitutional provisions (four freedoms) of the EC Treaty.48 Returning from courts to politics, it is important to examine the next steps of European integration that followed the single market programme. For Delors, the single market programme (SEA) was only the first step in a more ambitious programme of integration. He strongly believed that the economic liberalisation programme would be followed by both monetary union and creation of ‘social Europe’.49 While he was very successful in promoting common currency, his ‘social Europe’ idea was a gamble (Ross, 2011).50 In unique historical circumstances, marked by the ‘acceleration of history’ (the collapse of Communism, the end of the Cold War and German re-unification), and with support from the key Member States, the Treaty on European Union (the Maastricht Treaty) was signed in February 1992. Monetary union was by far the most important single policy initiative in the Maastricht Treaty. Premised on neo-liberal foundations, the EMU substantially constrained the ability of Member States to pursue fiscal and economic policies substantially different from the prevailing ordoliberal orthodoxy of sound finance doctrine which found its place in the new Treaty provisions. The EMU was embedded in a highly restrictive macroeconomic policy regime which was pre-Keynesian in its nature.51 Its key ingredients included the most independent central bank in the world (the ECB) with the overarching emphasis on price stability and with an absolute priority of monetary policy which is taken as the main instrument

Kennedy (2006), 69. Joerges (2010), 70. 48 Barnard criticises such ‘market access’ approach and argues for adoption of ‘discrimination-based’ approach, modelled upon the US Supreme Court jurisprudence to the Commerce Clause. See Barnard (2009). 49 Bache, George & Bulmer (2011), 166. 50 Ross (2011), 326. 51 Arestis & Sawyer (2006), 6. 46 47

The neo-liberal bias of the EU constitutional order: a critical analysis  393 of macroeconomic policy. Fiscal policy, on the other hand, was severely constrained by the rigid rules of the Stability and Growth Pact (SGP) prohibiting Member States from running excessive budget deficits and excessive general government debt. As explained by McNamara, the adoption of the EMU followed a new neoliberal policy consensus which ‘emphasizes the inherent stability and adaptability of the private sector and view traditional Keynesian efforts to manipulate the economy, particularly full employment strategies, as ineffective and possibly counterproductive’.52 With 10 out of 12 Member States having conservative centre-right prime ministers, the broader neoliberal policy consensus about sound money doctrine and with a strong support of business, Delors was able to push the EMU forward. However, his ‘social Europe’ agenda was confronted with a strong neoliberal-nationalist coalition unwilling to follow Delors’s proposal. Without the support of real political allies and ‘swimming against the current of the neoliberal Zeitgeist’, the Delors Commission counted on the neo-functionalist logic of market integration to necessitate Polanyi’s counter-movement leading to ‘market correcting’ Community institutions and policies.53 But, as it turned out, such neo-functionalist logic did not work as Delors wanted. As Streeck has shown, a British led coalition between neoliberal advocates and other Member States resisting harmonisation easily defeated Delors’ initiative.54 In other words, the original constitutional settlement was importantly redefined. The economic and the social, originally two parallel tracks, now started to collide. First, social protection policies at the national level had to be designed in the shadow of ‘constitutionalised’ economic law of the single market. Second, with the creation of the European and Monetary Union (EMU), Member States not only lost its autonomous monetary policy but also agreed, through the SGP, to important restrictions on their fiscal policies. Third, the EU accumulated substantial new jurisdictions in various social policy fields such as employment discrimination, equal pay, and health and safety at work. All these developments led to the creation of ‘semi -sovereign welfare states’ in a multi-tiered system of social policy, where Member States have lost more autonomy in social protection policies than the EU has gained in transferred new social protection authority.55 Nevertheless, the new EU constitutional settlement after the SEA and Maastricht Treaty differed from the orthodox Anglo-Saxon neoliberalism. According to Bastiaan van Apeldoorn56, it represented a continental European-style neoliberalism which combines supranational marketisation on the EU level with social elements on the national level, the latter being gradually hollowed out by the former. From a constitutional law perspective, it is important to emphasise that although the new embedded neoliberalism seriously challenges the constitutional balance between open market and social protection, it does not explicitly rule out progressive social policies. As we will see later, on this issue the Rubicon has been crossed with the EU response to the euro crisis.

54 55 56 52 53

McNamara (1998), 145. Streeck (1995), 402. Streeck (1996), 75. Liebfried & Pierson (1995), 44. van Apeldoorn (2009), 24.

394  Research handbook on the politics of constitutional law

4.

DIVIDED EU LEFT AND EUROPEAN INTEGRATION

The EU thus entered the next stage of integration with a significantly altered constitutional settlement. If under the Rome Treaty the social was constitutionally protected from the economic, after the SEA and the Maastricht Treaty it had to confront the expansive logic of the internal market and the constraining logic of the EMU. Bolstered with the activist jurisprudence of the European Court of Justice, the economic constitution gradually started to encroach upon the social, making the latter derivative of and subordinated to the former. The original balance between the economic and the social was changed so as to undermine the initial parity between the two. The Left was suddenly confronted with a new kind of constitutional order which clearly favoured the economic constitution of the internal market over social protection. As the original constitutional compromise begun to unravel so did the consensus between the Left and Centre-Right about the aims of the internal market. Between the mid-1980s and mid- 1990s there was a broad consensus among the Left and the Right concerning the importance of the single market. However, as the policy agenda shifted from creating the single market to the question of how regulated or liberalised the single market should be, the polarisation along the Left-Right political axis has increased.57 The period of ‘permissive consensus’ when European insulated elites could cut deals without a broader participation of European citizenry was then over.58 In these new circumstances, the volume of legislative acts adopted by the EU dramatically declined due to radically different positions between the European Left and Centre-Right on the substance of proposed legislation.59 For example, when the Centre-Right Commission led by Barroso proposed a new Services Directive (2006)60 aimed at introducing the country of origin principle for services, the attempt of liberalisation of services came under a joint attack from the French and German governments and many left-wing MEPs, who opposed the Directive on the grounds that it would undermine the high social standards that apply to most services in many Member States. Opposing the Services Directive, the Left organised one of the first and largest demonstrations in the front of the European Parliament, which helped to defeat the original ‘neoliberal’ text of the Directive aiming at full liberalisation of services in the EU. After the ECJ issued a series of judgments in 200761 concerning the impact of EU law on national labour law, the question about the compatibility of social rights with the EU economic constitution became even more pressing. As the ECJ ruled in favour of economic rights, there was a widespread perception that the EU economic constitution is threatening social policy by favouring economic integration. But if the EU constitution systematically biases policy making in the neo liberal direction, then the role of the Left in creating such order has to be critically examined as well. While

Hix (2008), 32. Hooghe & Marks (2008). 59 Hix (2008), 46. 60 Services Directive, 2006. DIRECTIVE 2006/123/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2006 on services in the internal market, OJ 2006), L376/26. 61 ECJ, Case C-438/05, International Transport Workers’ Federation, Finnish Seamen’s Union v. Viking Line ABP, OÜ VikingLine Eesti, ECR 2007, I-10779; ECJ, Case C-341/05, Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, ECR 2007, I-11767; ECJ, Case C-346/06, Rechtsanwalt Dr. Dirk Rüffert v. Land Niedersachsen, ECR 2008, I-01989. 57 58

The neo-liberal bias of the EU constitutional order: a critical analysis  395 structural theories in social science ‘seldom completely neglect agents’,62 they nevertheless put a heavy emphasis on the role of structures, in our case on the role of EU constitutional order. To correct this bias, we need to focus on the role of agency and related contingency factors. Hence, the analysis of the role of the EU constitutional order has to be supplemented with a critical analysis of the role of relevant agents in this game. In what follows, I look at the role of the European Left. The European Left supported both the creation of a single market and of the EMU, which were crucial changes to the original Rome Treaty. From this perspective, it is interesting to examine how the European Left responded to the erosion of social rights under the EU economic constitution. In the late 1990s, when 13 out of 15 Member States were ruled by social democrats, the European Left enjoyed a unique period of strong social democratic hegemony in EU politics.63 As we will see, social democrats failed to use this period to lock a social democratic perspective into the EU constitutional order.64 Although often described as a modest Treaty, the Treaty of Amsterdam nonetheless represented a unique opportunity for the Left to constitutionalise their social democratic agenda and thus re-balance the dominant neoliberal thrust of the previous two Treaty changes. However, at the meeting of socialist leaders in Malmö, shortly before the Amsterdam Council, it became clear that the diversity of views within the European Left was so big that it prevented a concerted Left approach in the negotiations leading to Amsterdam Treaty.65 While newly elected French prime minister Jospin attacked the neoliberal and monetarist thrust of European integration and demanded a social democratisation of the EMU, British Prime minister Blair presented his own, ‘third way’ version of European social democracy strongly opposed to any idea of binding regulation and intervention in employment policy at the European level.66 By introducing and expanding the EU competences in employment, social policy, equal opportunities, environmental protection, consumer protection and human rights, the Treaty of Amsterdam (1997) was definitely ‘an outlier’ in comparison with other Treaties, focusing more exclusively on the neo-liberal agenda of creation of a unified single market. But on the other hand, it fell short of constitutionalising an alternative social democratic EU agenda. Although the new Employment Chapter and a modernised Social Chapter represented important changes in the EU economic constitution, formally making a high level of employment an EU constitutional objective, Blair together with Kohl blocked any attempt to grant the EU any significant or regulatory powers in this area.67 Instead, the Treaty accepted Blair’s ‘voluntaristic’ approach relying entirely on coordination and monitoring of national employment policies. The Left failed to use a rare instance of its political hegemony to more radically change the neoliberal bias of the EU constitution.

62 Ellen Lust & David Waldner. Unwelcome Change: Understanding, Evaluating, and Extending Theories of Democratic Backsliding, (USAID, 2015), http://​pdf​.usaid​.gov/​pdf​_docs/​PBAAD635​.pdf 20, p. 9. 63 As Streeck explains, the first attempt to create a comprehensive social policy at European level happened in the early 1970s and was largely driven by social.democratic governments to be in power in the key countries at that time. However, the Social Action Programme of 1972 was easily defeated by a British led coalition between neoliberals and nationalist resistance to harmonisation. See Streeck (1995), 402. 64 Crespy (2020), 199. 65 Pollack (2000), 283. 66 Ibid, 284. 67 Ibid, 285.

396  Research handbook on the politics of constitutional law A similar story happened during the debates of the Convention on the Future of Europe, a precursor to future Lisbon Treaty. An important part of the Left again pressed for a constitutionalisation of ‘social Europe’, based on truly federalised social policy and extension of qualified majority voting (QMV) in the Council, but it was again blocked by a coalition of the right parties which were joined by the Nordic Social Democrats and Blair’s Labour Party fearing that any extension of EU competencies might undermine their national welfare models.68 As Ross argues, this can be explained by an established Euro sceptical tradition of many deeply social democratic lefts in Europe (Sweden, Denmark, Austria) strongly favouring protection of their own domestic welfare models.69 What these examples clearly show is that while the European Left was definitely constrained by the asymmetric logic of the institutional order, which by the way the Left also helped to construct, there were other issues which equally if not more importantly than the legal structure contributed to the absence of a well-defined, concerted Left approach to European integration: Irrespective of the limits imposed by EU institutions on the left’s influence, to have influence European lefts need to agree on what they want to do together. Here is where the largest problems for center-lefts arise.70

As this section clearly shows, the Left’s diverging interests regarding how best to pursue social rights in a supranational European order drastically diminished the possibility of a common Left position on social Europe. The fact that European social democrats did not have a common position or programme for social regulation at the EU level is also explained by the ‘fundamental failure of imagination’.71 For the most part of the brief history of European integration, the European Left remained imprisoned within the nation state logic of progressive social policy. The European Left never really developed a post-national, EU approach to social policy. It usually oscillated between the defensive approach of protecting domestic welfare states and the by and large unsuccessful approach to extend the national model to the EU level. Although these two approaches are quite different, they share one important thing: both use a nation state model of social policy as their preferred template for EU policy. This predicament of the European Left is best explained by Giuliano Amato, a former Italian prime minister and judge of the Constitutional Court: In the long history of social rights the workers and their organisations have been the promoters of their own progress and the more they have succeeded the more they have gained instruments for not just being promoters, but also co-decision makers of the steps forward. They are historically used to playing this role at the national level. For the future they have to get accustomed to play it more and more at the European one.72

McCann (2010), 137. Ross (2011), 334. 70 Ibid, 332–33. 71 C.S. Allen, ‘Social Democracy, Globalization and Governance: Why is there no European Left Program in the EU?’, Paper presented at the Minda de Gunzburg Center for European Studies, Harvard University, 3 April 2000. 72 Amato (2008). 68 69

The neo-liberal bias of the EU constitutional order: a critical analysis  397 The European Left must start to think how to transcend the ‘false necessity’ of straitjacket European neoliberal constitutional order. In order to do that, it must also transcend the nation state approach to social Europe, which unnecessarily limits the range of options available to the European Left to basically two main possibilities: either to a defensive strategy of the re-nationalisation of social policy, or to a traditional social-democratic attempt to reconstruct a Keynesian welfare state on the EU level. As Maurizio Ferrera argues, there is a third option, promising to reconcile the social model centred on the welfare state with the political model centred on the EU model of multi-level governance. The novelty of this approach is in its attempt to strengthen the national welfare state by its more effective and explicit ‘nesting’ within the overall institutional framework of the EU.73 I return to this issue in the next section discussing the post Euro-crisis developments in the field of ‘social Europe’. As the first decade of the twenty-first century was ending, the EU was challenged by the Euro-crisis, one of the most serious economic and political crises since the EU’s inception.74 In 2010, European political leaders responded with a series of legislative and constitutional measures aimed primarily to solve the euro-zone debt crisis. While the previous Treaty amendments tilted the EU economic constitution strongly in the neo-liberal direction, they nonetheless included legal provisions protecting redistributive autonomy of Member States at the national level. This time, the ‘Union has been transformed into a political system redistributing significant wealth within its territory’.75 For the first time in EU history we witnessed an emergence of a patchwork of new economic constitution76 which explicitly entrenched one economic paradigm at the expense of other alternatives, while simultaneously dismantling the remaining protections of social policy autonomy of economically vulnerable Member States. With these changes, the EU risks undermining the ‘substantive balance’ between the market integration and social policy that sustains the legitimacy of the integration project.77 As de Witte and Dawson argue, for the first time the substantive balance of the EU ensuring ‘the relative neutrality’78 of the Union’s policies has been explicitly disregarded. This approach was not only constitutionally problematic, but also economically questionable.79

5.

TOWARD EUROPEAN AUSTERITY UNION: EU CONSTITUTION AFTER THE EURO CRISIS80

Since the beginning of the Eurozone crisis in 2009, governments across Europe had single-mindedly embraced fiscal austerity. The imposition of austerity had meant double-digit government spending cuts and the elevation of the austerity paradigm spearheaded by German Chancellor Angela Merkel to an essentially ‘unbreakable law’. The new Fiscal Compact, a treaty signed by all EU members at that time, except the United Kingdom and the Czech Republic, effectively outlawed the counter-cyclical economic policies espoused by 75 76 77 78 79 80 73 74

Ferrera (2009). Matthijs & Blyth (2015). Chalmers (2012). Joerges (2013). Dawson & de Witte (2013); Ferri & Cortese (2020). Dawson & de Witte (2013). King, Kitson, Konzelmann & Wilkinson (2012). This section builds on my previous work. See Bugaric (2020).

398  Research handbook on the politics of constitutional law Keynesianism, and established austerity and balanced budgets as the new fundamental principles of the EU constitutional order.81 Lacking the unanimous support of all the Member States, the Fiscal Compact could not be adopted as an amendment to the EU Treaties. Instead, it took the form of a separate intergovernmental treaty, requiring ratification by at least 12 Eurozone members (Article 14 TSCG) to take effect. The Fiscal Compact was only the last in a series of constitutional and legislative measures adopted by EU political leaders with the intent to ‘solve’ the Eurozone crisis.82 As with most of the other measures initiated by the German-led, centre-right coalition of political forces, the Fiscal Compact subscribed to a now-dominant economic ‘theory’ of austerity that informs most of its rules. Namely, the main culprits for the euro crisis, according to this theory, were profligate governments and their public sectors. As a consequence, the only hope to discipline such ‘irresponsible’ governments was to impose strict fiscal rules (balanced budgets) preventing the further increase of budget deficits and public debt in debt ridden economies of Southern Europe. The Fiscal Compact deviates from traditional EU values of democracy, institutional balance, and the equality of Member States.83 It empowers European bureaucrats, judges, and bankers at the expense of European citizens. Instead of using an ordinary revision procedure for Treaty amendments (Article 48 TEU) or enhanced cooperation as provided for in Article 20 TEU and in Articles 326 to 334 TFEU, the Fiscal Compact was adopted outside the EU law, as a separate international treaty. As a consequence, it could bypass the more democratic and transparent procedure provided for in EU law, in particular the participation of the European Parliament and national parliaments. Only Ireland put the Fiscal Compact to a democratic debate, through a referendum, but it did so because of the requirements of the Irish constitution.84 As an international treaty, the Fiscal Compact also side-stepped independent judicial review, separation of powers, and respect for fundamental rights of EU law.85 Furthermore, it entered into force when it was ratified only by 12 out of 17 members of the Eurozone, which clearly deviates from the established consensual principles among the Member States. As Simon Hix convincingly argues, any decision with significant redistributive consequences requires a strong sense of political legitimacy for the decision to be accepted by those to whom 81 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (hereinafter TSCG). It was signed on 2 March 2012, and it entered into force on 1 January 2013, available at  https://​www​.consilium​.europa​.eu/​media/​20399/​st00tscg26​_en12​.pdf  (not published in the OJEU). See Fintan O’Toole, ‘Treaty Seeks to Outlaw One Side of the Debate,’ The Irish Times, 6 March 2012,  https://​www​.irishtimes​.com/​opinion/​treaty​-seeks​-to​-outlaw​-one​-side​-of​-the​-debate​-1​.476193. 82 From 2010 to 2012, they adopted European Semester (2010), European Financial Stability Facility (2010), Euro-Plus Pact (2011), Six-Pack (2011), European Stability Mechanism (2012) and, last but not least, Treaty on Stability, Co-ordination and Governance in the Economic and Monetary Union (a.k.a. the Fiscal Treaty, 2012). 83 Menendez (2014). 84 Irish voters approved the Compact, but, as many commentators suggested, with a gun to their heads. Namely, Recital 25 of the Fiscal Compact makes access to financial assistance from the European Stability Mechanism, which Ireland needed at that time, conditional on the ratification of the Compact. As Andy Storey argues, in the Irish case the EU elites did almost everything to avoid a referendum in Ireland, including deliberately rewording the original text of the Compact. See Andy Storey, ‘The Vampire Treaty and the Irish Referendum,’ Transnational Institute, 6 March 2012, https://​www​.tni​.org/​ en/​article/​the​-vampire​-treaty​-and​-the​-irish​-referendum. 85 Lukas Oberndorfer, ‘The Fiscal Compact Bypasses Democracy and the Rule of Law,’ Transnational Institute, 8 March 2012,  https://​www​.tni​.org/​en/​article/​the​-fiscal​-compact​-bypasses​-democracy​-and​-the​ -rule​-of​-law.

The neo-liberal bias of the EU constitutional order: a critical analysis  399 it applies. Given all of these flaws, therefore, it comes as no surprise that Hix concludes that the Fiscal Compact lacks political legitimacy.86 Agustín José Menéndez goes even further and argues that the Fiscal Compact is unconstitutional: ‘By taking fundamental decisions on the way European competences are organised and executed outside EU treaties, Member States are opting out of Union law. They are therefore undermining the integrity of EU law.’87 Even more problematic are the substantive legal aspects of the Fiscal Compact. As recounted previously, the Compact, in essence, entrenches a certain economic theory at the level of constitutional law. Thus, for the first time in EU history, the EU constitution explicitly biases the content of decision-making in the direction of neoliberalism in the EU legal order; the new Austerity Union in the making does this in a more explicit and profound way, leaving very little room for a discretionary fiscal policy to Member States. While it is true that the Fiscal Compact mostly reproduced already existing provisions of EU law,88 its importance should not be underestimated. The core provision of the Fiscal Compact (Article 3) contains a ‘structural budget deficit’ rule that requires that the country’s structural deficit not exceed 0.5 per cent of GDP. To elaborate: Article 3 stipulates that the budgetary position of the general government of a Contracting Party shall be balanced or in surplus. This is interpreted as the annual structural balance of the general government at its country-specific medium-term objective, as defined in the revised Stability and Growth Pact (SGP),89 with a lower limit of a structural deficit (a deficit calculated using a cyclically adjusted budget balance corrected for one-off and temporary measures) of 0.5 per cent of GDP at market prices (i.e. market price for sovereign debt). The aim of this ‘golden rule’ of balanced budgets is to ensure stricter budgetary discipline among the EU governments. Another element of the Fiscal Compact is the so-called debt brake (schuldenbremse) contained in Article 4, mod86 ‘European Scrutiny Committee: Written Evidence Submitted by Simon Hix,’ UK Parliament website, last visited 7 November 2018, https://​publications​.parliament​.uk/​pa/​cm201012/​cmselect/​ cmeuleg/​1817/​1817we02​.htm . 87 Agustín José Menéndez, ‘The EU’s Unconstitutional Treaties,’ Politico, 27 June 2012, https://​ www​.politico​.eu/​article/​the​-eus​-unconstitutional​-treaties/​. 88 The legislative ‘Six Pack’ and ‘Two Pack’ preceded the adoption of the Fiscal Compact and were designed to enhance the surveillance of Member States’ economic policies and to foster budgetary discipline. The Six Pack includes European Parliament and Council Regulation (EU) 1173/2011, On the Effective Enforcement of Budgetary Surveillance in the Euro Area, 2011 O.J. (L 306) 1; European Parliament and Council Regulation (EU) 1174/2011, On Enforcement Measures to Correct Excessive Macroeconomic Imbalances in the Euro Area, 2011 O.J. (L 306) 8; European Parliament and Council Regulation (EU) 1175/2011, Amending Council Regulation (EC) No 1466/97 on the Strengthening of the Surveillance of Budgetary Positions and the Surveillance and Coordination of Economic Policies, 2011 O.J. (L 306) 12; European Parliament and Council Regulation (EU) 1176/2011, On the Prevention and Correction of Macroeconomic Imbalances, 2011 O.J. (L 306) 25; Council Regulation (EU) 1177/2011, Amending Regulation (EC) No 1467/97 on Speeding up and Clarifying the Implementation of the Excessive Deficit Procedure, 2011 O.J. (L 306) 33; Council Directive 2011/85/EU, On Requirements for Budgetary Frameworks of the Member States, 2011 O.J. (L 306) 41. The Two Pack is composed of European Parliament and Council Regulation (EU) 472/2013, On the Strengthening of Economic and Budgetary Surveillance of Member States in the Euro Area Experiencing or Threatened with Serious Difficulties with Respect to Their Financial Stability, 2013 O.J. (L 140) 1; European Parliament and Council Regulation (EU) 473/2013, On Common Provisions for Monitoring and Assessing Draft Budgetary Plans and Ensuring the Correction of Excessive Deficit of the Member States in the Euro Area, 2013 O.J. (L 140) 11. 89 For a detailed account of the original SGP rules and the subsequent reforms (2005–2011), see Estella (2018), 134–57.

400  Research handbook on the politics of constitutional law elled on the German constitutional provisions (Articles 109 and 115) that require the federal government to reduce its structural deficit to 0.35 per cent of GDP by 2016.90 Under Article 4, Member States with government debt ratios in excess of 60 per cent of GDP are to reduce their debt ratios in line with a numerical benchmark, which implies a decline of the amount by which their debt exceeds the threshold at a rate in the order of 1/20th per year over three years. Consequently, countries with a debt ratio exceeding 60 per cent of GDP are subject to strict rules. The Fiscal Compact (following the Six Pack) makes it possible for the European Commission to open an excessive deficit procedure under Article 126 TFEU on the basis of the debt criterion. It also places compliance with its budgetary and other requirements under the jurisdiction of the European Court of Justice, which can fine countries up to 0.1 per cent of their GDP if they do not transpose correctly the balanced budget rules. This jurisdiction represents an unprecedented constitutional intrusion, since the European Court of Justice has never had the power to interpret national constitutions of the Member States; the ECJ will be asked to decide on intricate issues of national constitutional law, which directly implicates the will of the people contained in national constitutions.91 Once a country is found in breach of these fiscal obligations, the Commission, the Council, and the ECJ have extensive powers of control and sanction over a Member State fiscal policy. The Member State signatories are required to implement the Fiscal Compact with new provisions ‘of binding force and permanent character,’ preferably in their constitutions.92 As a consequence, the economic theory of austerity was constitutionalised on both the EU and national level; Keynesianism was ruled out precisely when it was most needed. The Fiscal Compact instrumentalised national constitutional law for the benefit of the Union law ‘to a degree not seen before.’93 As Menéndez critically argues, national constitutions leave no room for the transfer of sovereignty to mere intergovernmental processes, yet this is precisely what has been accomplished through the Fiscal Compact and the introduction of constitutional amendments via the Fiscal Compact. The very choice of form is, according to Menéndez, a breach of national constitutional law,94 and results in the amendment of the ‘pouvoir constitutant’ of the Member States.95 Beyond the form, as Antonio Estella argues, the new rules of EU economic governance (Fiscal Compact, Six Pack, and Two Pack) represent ‘an unprecedented turn to rigidity in the history of the evolution of the SGP.’96 The new rules restrict the fiscal policy of Member States even more so than the rules from before the euro crisis. The new rules strike ‘at the heart of the institutions of parliamentary democracy by dislocating as a matter of constitutional principle 90 No surprise then that one of the leading European legal journals, cynically referring to the statement of the CDU parliamentary leader Volker Kauder, entitled its editorial ‘The Fiscal Compact and the European Constitutions: Europe Speaking German,’ Besselink & Reestman (2012). 91 Both Damian Chalmers and Agustin Menendez are highly critical of this new role for the European Court of Justice. See Damian Chalmers, ‘The ECJ Has Taken on Huge New Powers as Enforcer of Last Week’s Treaty on Stability, Coordination and Governance. Yet Its Record as a Judicial Institution Has Been Little Scrutinized,’  LSE European Blog, 7 March 2012,  http://​blogs​.lse​.ac​.uk/​europpblog/​2012/​03/​ 07/​european​-court​-of​-justice​-enforcer/​. 92 TSCG, Article 3, para 2. 93 Besselink & Reestman, ‘Editorial: The Fiscal Compact and the European Constitutions,’ 5. 94 Menéndez, ‘The EU’s Unconstitutional Treaties.’ 95 Loic Azoulai et al. ‘Another Legal Monster? An EUI Debate on the Fiscal Compact Treaty,’ Law 2012/09, EUI Working Papers, 12. 96 Estella (2018), 170.

The neo-liberal bias of the EU constitutional order: a critical analysis  401 the budgetary autonomy of the Member States.’97 To put even more pressure on Member States, access to financial assistance under European Stability Mechanism (ESM)98 was made conditional on prior ratification of the Fiscal Compact. After the European Court of Justice ruling in the Pringle case,99 where the Court basically constitutionalised the principle of strict conditionality contained in the ESM Treaty, countries seeking financial assistance from the ESM were subjected to even more explicit forms of fiscal retrenchment imposed through the Memoranda of Understanding that struggling Member States had to ‘negotiate’ with the Troika made up of the European Commission, the International Monetary Fund, and the European Central Bank. For example, financial aid to Greece and Portugal was conditional on VAT increases, pension cuts, and the liberalisation of public services.100 Other measures such as The Euro-Plus Pact and The European Growth Pact on the other hand explicitly suggested coordination and harmonisation of such contentious welfare issues as pension schemes, social benefits and employment policies. The Fiscal Compact has brought not only a deep intrusion into the fiscal manoeuvring room of the Member States. It is also too rigid and too restrictive in terms of its budgetary and fiscal rules. Although many of its rules are ambiguous, that does not solve the problem of rigidity of its main ‘targets,’ i.e. rules on the allowed structural budget deficit and public debt. The European Macro Group – three European macroeconomic institutes: IMK from Düsseldorf, WIFO from Vienna, and OFCD from Paris – prepared a joint study on the impact of austerity measures reinforced by the Fiscal Compact. As the study showed,101 few of the EU countries undergoing severe economic crisis were able to implement the rules without seriously undermining their prospects for future economic growth. Their detrimental effect could also be clearly seen from those countries that were used as role models for fiscal discipline. Switzerland, which first introduced the debt brake in 2003, today has indeed a very low debt-to-GDP ratio, but its levels of public investments are among the lowest in the developed world.102 Germany, the main ‘exporter’ of balanced budget rules and debt brakes, also faces a critical lack of public investment in areas such as green energy and education. It is no surprise that the EU’s Austerity Union has been criticised from many quarters. At the height of the euro crisis, authors like Wolfgang Streeck, Fritz Scharpf and Perry Anderson described the situation in bailout countries as sovereignty ‘on paper,’103 an occupation regime by the ‘Troika’ (of the European Commission, International Monetary Fund, and European

Besselink and Reestman, ‘Editorial: The Fiscal Compact and the European Constitutions,’ 1. ESM is the EU’s major bailout mechanism, which was established in a separate international treaty and signed by the nineteen members of the Eurozone. 99 Case C-370/12, Pringle v. Ireland, ECLI:EU:C:2012:756. 100 F.W. Scharpf, ‘Monetary Union, Fiscal Crisis and the Preemption of Democracy’, MPlfG Discussion Paper 11/2011, 28. 101 IMK, OFCE, and WIFO, ‘Fiscal Pact Deepens Euro Crisis – Joint Analysis of the Macro Group,’ March 2012, 20–23,  https://​www​.boeckler​.de/​pdf/​p​_imk​_report​_71e​_2012​.pdf. 102 Adam Tooze, ‘Germany’s Unsustainable Growth; Austerity Now, Stagnation Later,’  Foreign Affairs, September/October 2012, https://​www​.foreignaffairs​.com/​articles/​germany/​2012​-09​-01/​germanys​ -unsustainable​-growth​?​_gl​=​1​%2Ap33klv​%2A​_ga​%​2AMTg2MTg1​MzU2MS4xNj​gzMjAwMzI4​%2A​ _ga​_5PHCCVN7B8​%2AMT​Y4MzIwMDMy​OC4xLjAuMT​Y4MzIwMDMy​OC4wLjAuMA​.​.​%2A​ _ga​_N9V4J2JY26​%2AMT​Y4MzIwMDMy​OC4xLjAuMT​Y4MzIwMDMy​OC4wLjAuMA​.​.​%2A​_ga​ _24W5E70YKH​%2AMT​Y4MzIwMDMyOC4xLjAuMTY4MzIwMDMyOC4wLjAuMA. 103 Streeck (2012). 97 98

402  Research handbook on the politics of constitutional law Central Bank),104 and a Troika diktat regime ‘reminiscent of Austria in 1922, when the Entente, under League of Nations colors, posted a high commissioner to Vienna to run the economy.’105 Others have observed that both the management of the euro crisis and the Fiscal Compact have deepened the divide between the Union core and periphery in the Union. Damian Chalmers observed the differentiated impact of the Fiscal Compact on two different groups of countries: those few like Germany, Finland, Luxembourg, and Estonia who already had a balanced budget were not particularly affected; and the overwhelming majority of others faced very demanding fiscal requirements.106 Needless to say, countries like Greece, Portugal, and Spain could in fact, in the end, achieve their required deficit and debt targets but the costs were already prohibitively high. Greece, for example, a country ranked eighteenth according to the UN Human Development Index in 2008, was on the verge of a humanitarian crisis. Even such pro-EU proponents as Jacques Delors fiercely criticised the Fiscal Compact. In a speech in the European Parliament, Delors referred to the Fiscal Compact as a gas factory (‘usine a gaz’).107 The new Austerity Union thus undermines the most fundamental principles of ‘substantive balance’ in the EU constitutional order. These principles, enshrined in the original Rome Treaty, provided a workable balance between Union’s economic goals and national redistributive social policies. As I showed in Section 3, this balance has already been redefined in the 1980s with the single market project and monetary union. Nonetheless, the economic constitution of the Union has never so directly affected the Member States’ autonomy in its fiscal, and consequently, redistributive policies as it did with the newly adopted constitutional components of the emerging Austerity Union.108

6.

TOWARD A POST AUSTERITY UNION?

The problem of constitutionally entrenched myopic austerity is that it rests on a misdiagnosis of the euro crisis, backfired economically, and triggered grave social and economic repercussions in indebted countries.109 What Europe needs more than anything is a new anti-austerity coalition, focused on growth and social justice. Only a Europe willing to revert back to some basic Keynesian policies of economic stimulus, combined with economic innovations that include much-needed investments in infrastructure, education, and social programs, can restore Europe to stability, and reverse its dangerous nationalist surge. A fiscal and political Union might not be the best way to achieve this objective. As Ashoka Mody convincingly explains, it is naïve to expect that only a further federalisation of ‘incomplete’ monetary Union could solve the accumulated problems of the Eurozone economies:

104 Fritz Scharpf, ‘Monetary Union, Fiscal Crisis, and the Preemption of Democracy,’ LEQS Paper No. 36/2011, LSE Europe in Question Discussion Paper Series, May 2011. 105 Anderson (2012). 106 Chalmers (2012). 107 Georgi Gotev, ‘Delors Points the Finger at Europe’s “Killers”,’ EUROACTIV, 29 March 2012,  https://​www​.euractiv​.com/​section/​elections/​news/​delors​-points​-the​-finger​-at​-europe​-s​-killers/​. 108 Dawson & de Witte (2013). 109 In an important study, three economists from the IMF argue that austerity policies can do more harm than good. Ostry, Loungani & Furceri (2016); see also Paul de Grauwe and Yuemei Ji, ‘The Legacy of Austerity in the Eurozone,’ CEPS Commentary, 4 October 2013.

The neo-liberal bias of the EU constitutional order: a critical analysis  403 Today many hope that, spurred by French President Emmanuel Macron’s call for euro area reform, Merkel will work on repairing the euro area’s architecture. Such a hope is illusory. Merkel is all too aware that any sign of financial generosity toward Europe will embolden the rebels within the CDU. Other northern nations have made clear that they will oppose calls on their taxpayers (Rutte 2018, Finance Ministers 2018). No euro area nation state is willing to cede its national parliament’s sovereignty on fiscal matters. Policy decisions will remain disengaged from politics. Hence, even if new financial arrangements are engineered, it will be impossible to achieve accountability in euro area governance. Political tensions will continue to build.110

Instead of looking for ‘more Europe,’ Mody suggests, European leaders should shift their attention to domestic public rebellions. Barry Eichengreen offers another economic explanation as to why only a re-nationalisation of fiscal policy can stem the tide of European populism.111 His core thesis is that the evidence for large cross-border spillovers of national fiscal policies is weak. At the same time, the core questions of fiscal policy – whom to tax, how to tax, and how much to tax – are one of the most sensitive political and social questions, which are quintessentially national prerogatives. When cross-country spillovers are small but national preferences differ, the best option is to leave the decision-making at the national level. He concludes: ‘For fiscal policy then, the appropriate reform is less Europe, not more Europe.’112 Similarly, Vivien Schmidt notes that ‘the EU needs to give back to the member-states the flexibility they have had in the past to devise policies that work for them.’113 To this end, a more bottom-up and flexible reinterpretation of the rules of Eurozone governance is required: ‘[T]he Eurozone already has an amazing architecture of economic coordination, reaching into all the Eurozone ministries of finance and country economic experts. Why not use that coordination to ensure that countries themselves determine what works for their very specific economic growth models and varieties of capitalism?’114 The existing framework of the European Semester,115 redesigned in this way, could help Member States to get back on the path of sustainable growth. The fiscal councils could be supplemented by new competitiveness Ashoka Mody, ‘The Euro Area’s Deepening Political Divide,’ Vox, 21 March 2018, https://​voxeu​ .org/​article/​euro​-area​-s​-deepening​-political​-divide. Mody’s arguments have been further elaborated in his magisterial study, Mody (2018). I would like to thank Peter Lindseth for this reference. 111 Eichengreen (2018), 168–70. See also Barry Eichengreen, ‘The Euro’s Narrow Path,’ Project Syndicate, 11 September 2017; Barry Eichengreen and Charles Wyplosz, ‘Minimal Conditions for the Survival of the Euro,’ Vox, 14 March 2016, https://​voxeu​.org/​article/​minimal​-conditions​-survival​-euro. 112 Eichengreen (2018), 169. An important precondition for such re-nationalisation of fiscal policy is that banks be prevented from holding dangerous numbers of government bonds. However, for a critique of this argument see Dani Rodrik, ‘Does Europe Really Need Fiscal and Political Union,’ Project Syndicate, 11 December 2017,  https://​www​.project​-syndicate​.org/​commentary/​separating​-private​-and​ -public​-finance​-in​-europe​-by​-dani​-rodrik​-2017​-12​?barrier​=​accesspaylog. 113 Vivien Schmidt, ‘How Should Progressives Respond to the EU’s Many Crises and Challenges to Democracy?’  The Progressive Post, 3 April 2017,  https://​progressivepost​.eu/​progressives​-respond​-eus​ -many​-crises​-challenges​-democracy/​. 114 Ibid. 115 The European Semester is a cycle of economic and fiscal policy coordination within the EU. It is part of the European Union’s economic governance framework. Its focus is on the six-month period from the beginning of each year, hence its name – the ‘semester’. During the European Semester, the Member States align their budgetary and economic policies with the objectives and rules agreed at the EU level. The legal basis for European Semester is the so-called Six Pack, European Parliament and Council Regulation 1175/2011. 110

404  Research handbook on the politics of constitutional law councils to act more as industrial policy councils rather than structural adjustment hawks; in Schmidt’s words, ‘such a bottom-up approach is likely not only to promote better economic performance but also much more democratic legitimacy at the national level. This is because it would put responsibility for the country’s economics back in national government’s hands at the same time that it would encourage more legitimising deliberation at the EU level.’116 But in order to be redesigned in the suggested way, the European Semester would require simultaneous changes of SGP rules as well. As Mark Dawson argues, the European Semester ‘was envisaged as a measure to buttress and strengthen the Eurozone economy in particular and to recognise the need for heightened EU supervision of domestic budgets.’117 As a result, it is deeply embedded in the balanced budget fundamentalism of the SGP.118 None of these suggested reforms will work if the troubled countries remain overburdened by excessive debt and if they are left bereft of significant investment funds provided by banks or the state. For all this, the European Stability Mechanism is simply not enough. The EU needs to reinvent new forms of solidarity. As Schmidt suggests, new instruments such as Eurobonds, Europe-wide unemployment insurance, EU investment resources,119 and an EU self-generated budget are needed. The first step in this direction was made in 2015 through the establishment of the European Fund for Strategic Investments (EFSI), part of the Investment Plan for Europe (the so-called Juncker Plan).120 EFSI was an initiative launched jointly by the European Investment Bank and the European Commission to help overcome the current investment gap in the EU. However, as a recent study of the political economist Cornel Ban shows,121 most EFSI loans and guarantees went to countries in a relatively strong economic position, with the exception of Italy and Spain, which at the time were undergoing steep recessions. In other words, Italy, Spain, France, Germany, and Poland received most of the loans, whereas the Baltic countries, Hungary, and Romania received dramatically less. As a result, ‘the countercyclical pattern looks quite patchy.’122 One possible lesson to draw from this quite limited example of European ‘Keynesianism’ is that the creation of a new anti-austerity coalition will not be an easy task. As Jeffry Frieden and Stefanie Walter show, the outcome of the crisis has been quite unusual ‘because the costs of the crisis resolution have been borne almost exclusively by the debtor countries and taxpayers in the Eurozone.’123 The rift between the debtor and creditor states that emerged as the consequence of this outcome implicates ‘powerful national interests and equally powerful particularistic special interests.’124 It is one thing to say that the survival of the Eurozone is in the interest of both groups of countries but quite another to persuade German, Dutch, Austrian, 116 Vivien Schmidt, “How Do Progressives Fight Back against Populism,” Social Europe, 4 April 2017,  https://​www​.socialeurope​.eu/​author/​vivien​-schmidt. 117 Dawson (2018). 118 For this point, see Dawson (2018); Costamagna (2018). 119 Ibid. 120 European Parliament and Council Regulation (EU) 2015/1017, On the European Fund for Strategic Investments, the European Investment Advisory Hub and the European Investment Project Portal and Amending Regulations (EU) No 1291/2013 and (EU) No 1316/2013, 2015 O.J. (169) 1. 121 Cornel Ban, ‘Austerity Europe, Keynesian Europe: The Politics of Debt and Growth in Europe.’ https://​research​.cbs​.dk/​en/​publications/​austerity​-europe​-keynesian​-europe​-the​-politics​-of​-debt​-and​ -growth. 122 Ibid. 123 Frieden & Walter (2017). 124 Ibid, 386.

The neo-liberal bias of the EU constitutional order: a critical analysis  405 and other mostly Northern European surplus countries to agree to a more debtor-friendly version of adjustment policies. What the EU needs is not only more financial resources but also new ideas about how to create more inclusive, diverse, and pluralistic European societies and economies. Here I agree with Aglietta, who argues that: [i]ntegration in the absence of a Europe-wide development strategy succeeded only in concentrating industrial activity in the regions where it was already strong, while the periphery lost ground. To counter this slide into long-term stagnation will require a development project capable of relaunching innovation across the whole range of economic activities, driven by investment largely anchored at regional and local level, with a strong environmental component.125

If countless billions were found to prop up large European financial institutions, it is not implausible to think a small fraction of that sum could be devoted to such a development project. The future of the EU will be determined by the ability of European political forces and civil society to articulate and push forward alternative scenarios for such ‘possible Europes’.126 Returning to the constitutional plane, the most relevant question is whether the EU constitutional order would allow such innovations and experiments. Contrary to the argument presented by Scharpf and others proponents of the theory of EU neoliberal constitutional order, some more recent political and legal developments demonstrate that there is more flexibility in the EU constitutional order than allowed in Scharpf’s theory. In November 2022, the European Commission presented its proposal for a reformed EU economic governance framework. The proposal intends to allow flexibility to boost growth and investments. The EU fiscal rules have remained suspended since the outbreak of the COVID-19 pandemic in March 2020. The European Union appears ready to ditch austerity as it takes the first formal steps to reform the long-standing fiscal rules that rein in excessive government spending. Under the Commission’s proposal, both the 3 per cent deficit and 60 per cent debt targets will remain untouched but greater flexibility will be introduced to adapt the goals to the specific circumstances of each country.127

With many details of these new governance framework still missing, it remains to be seen whether this is the step in anti-austerity direction.128 Last but not least, Next Generation EU (NGEU), the new temporary programme (2021–2026) decided by the European Union (EU) to deal with the economic consequences of the COVID-19 pandemic, represents another example of flexibility of the EU constitutional order. Moreover, according to Buti and Fabbrini, NGEU represents ‘a substantial break with respect to previous EU responses to economic crises and potentially even a paradigm shift in European economic governance.’129

Aglietta (2012). Supiot (2009). 127 Jorge Liboreiro, Brussels proposes new EU fiscal rules to turn the page on austerity, Euronews. 10.11.2022, https://​www​.euronews​.com/​my​-europe/​2022/​11/​09/​brussels​-proposes​-new​-eu​-fiscal​-rules​ -to​-turn​-the​-page​-on​-austerity 128 See https://​www​.socialeurope​.eu/​almost​-new​-fiscal​-rules​-for​-an​-old​-europe. 129 Buti & Fabbrini (forthcoming). 125 126

406  Research handbook on the politics of constitutional law While it is too early to make any conclusions about the substance of suggested changes in EU economic governance, they clearly show that the EU constitutional order allows more flexibility than suggested by the proponents of the theory of European constitutional neoliberal straitjacket. Another takeaway from this chapter is that social changes don’t happen by themselves. They have to be initiated by proper agents of change, i.e. political actors. Here our story ends on a less optimistic note. The politically weakened European social democrats and other centre-left parties – the traditional standard bearers of the post-World War II ‘embedded liberalism’ consensus – are now on the defensive. Instead of offering novel progressive solutions, the mainstream seems extremely vulnerable to the populist challenge coming both from the extreme right and extreme left. Instead of surrendering to the populists’ false promises of quick fixes, the mainstream has to reinvent itself. It must respond to the social anxieties that are helping fuel nationalist populism. Populist leaders are promising better pensions, health care, and more jobs, an agenda that is winning over the abandoned working class communities that were once a stronghold of the European social democratic and other progressive parties. Leaders of socially oriented, progressive parties can reverse the nationalist trend by returning the EU to its initial role as the promoter of European solidarity and equality. Job training and ‘green’ growth are just some of the possible public investments in this direction. As Greece’s humiliating defeat by the German-led austerity coalition illustrates, this will take a concerted, Europe-wide initiative. If European progressives of various political colours do not start offering a more compelling agenda, Europe is on a dangerous political path.

7.

CONCLUSION: CONSTITUTIONAL LIMITS TO PROGRESSIVE POLITICS?

Constitutions in liberal democracies usually don’t discriminate among different political ideologies.130 While constitutions impose certain limits on legislative politics, primarily through the protection of constitutional rights, it can hardly be argued that, across the board, they privilege one or another political ideology. The EU ‘economic constitution’ is, in this respect, different. It systematically biases EU policy making in a neo-liberal direction. Historically speaking, this was not the intent of the EU founding fathers. The original constitutional settlement of embedded liberalism was significantly redefined in the next major revisions of the Rome Treaty. The neo-liberal foundations of the single market and the EMU have imposed real and significant institutional constraints for progressive policy making. However, the role of the European Left was crucial in this alteration of the EU constitutional order. Despite the strong neoliberal consensus among the key political actors of that time, such a change would have not be possible without the Left’s retreat towards ‘centre-leftism’, particularly in France. The European Left, while in power, failed to leave its distinct imprint on the EU economic constitution. Despite certain quite important achievements (Employment Chapter, Social Chapter, equal protection, environment, health and safety), the Left failed to promote a coherent EU approach to ‘social Europe’. The Left policy agenda remained firmly embedded in the logic of the nation state. The euro crisis pushed these developments even further and, for the first time For contra argument that many constitutions in Latin America do favour certain political ideologies, such as social democracy or neo-liberalism, see D. Brinks & W. Forbath, ‘The role of courts and constitutions in the new politics of welfare in Latin America’, unpublished paper, 2013. 130

The neo-liberal bias of the EU constitutional order: a critical analysis  407 in the EU history, explicitly challenged the constitutional balance of the EU legal order. The new Austerity Union, a project in the making, profoundly altered this constitutional balance. Nevertheless, some more recent political and legal developments, such as reforms of fiscal rules, economic governance and the establishment of the Next Generation EU programme, demonstrate that there is more flexibility in the EU constitutional order than allowed in Scharpf’s theory.

REFERENCES Aglietta, Michel. (2012). ‘The European Vortex,’ New Left Review 75: 15–36. Alter, Karen. The European’s Court Political Power. Selected Essays (Oxford University Press, 2009). Amato, Giuliano. (2008). ‘Making Social Europe European,’ (2008) Social Europe 4: 30–31. Anderson, Perry. (2012). ‘After the Event,’ New Left Review 73: 49–61. Anderson, Perry. The New Old World (Verso, 2010). Andry, Aurelie Dianara. Social Europe, the Road Not Taken, The Left and European Integration in the Long 1970s (Oxford University Press, 2022). Arestis, Philip & Malcolm Sawyer. ‘Macroeconomic policy and the European Constitution’ in Philip Arestis & Malcolm Sayer (eds) Alternative Perspectives on Economic Policies in the European Union (Palgrave Macmillan, 2006). Bache, Ian, Stephen George & Simon Bulmer. Politics in the European Union, 3rd edition (Oxford University Press, 2011). Ban, Cornel. ‘Austerity Europe, Keynesian Europe: The Politics of Debt and Growth in Europe.’ https://​ research​.cbs​.dk/​en/​publications/​austerity​-europe​-keynesian​-europe​-the​-politics​-of​-debt​-and​-growth. Barnard, Catharine. (2009). ‘Restricting Restrictions: Lessons for the EU from the US?,’ Cambridge Law Journal 68: 575–606. Berman, Sheri. (2012). ‘European Disintegration? Warnings from History,’ Journal of Democracy 23: 7–14. Besselink, Leonard & Jan-Herman Reestman. (2012). ‘Editorial: The Fiscal Compact and the European Constitutions: “Europe Speaking German”,’ European Constitutional Law Review 8: 1–7. Bickerton, Chris. European Integration: From Nation States to Member States (Oxford University Press 2012). Bugaric, Bojan. ‘The Populist Backlash Against Europe: Why Only Alternative Economic and Social Polices Can Stop the Rise of Populism in Europe’ in Francesca Bignami (ed) EU Law in Populist Times: Crises and Prospects (Cambridge University Press, 2020). Buti, Marco & Sergio Fabbrini. (2022). 'Next Generation EU and the future of economic governance: towards a paradigm change or just a big one-off?,' Journal of European Public Policy (forthcoming). Chalmers, Damian. (2012). ‘The European Redistributive State and a European Law of Struggle,’ European Law Journal 18: 667–93. Costamagna, Francesco. (2018). ‘National Social Spaces as Adjustment Variables in the EMU: A Critical Legal Appraisal,’ European Law Journal 24: 163–90. Craig, Paul & Grainne de Burca. EU Law: Text, Cases and Materials, 5th edition (Oxford University Press, 2011). Crespy, Amandine. ‘Social Policy: Is the EU Doing Enough to Tackle Inequalities,’ in Ramona Coman, Amandine Crespy & Vivien Schmidt (eds) Governance and Politics in the Post-Crisis European Union (Cambridge University Press, 2020). Davies, Gareth. (2015). ‘Democracy and Legitimacy in the Shadow of Purposive Competence,’ European Law Journal 21: 2–22. Dawson, Mark & Floris de Witte. (2013). ‘Constitutional Balance in the EU After the Euro-Crisis,’ Modern Law Review 76: 817–44. Dawson, Mark. (2018). ‘New Governance and the Displacement of Social Europe: The Case of the European Semester,’ European Constitutional Law Review 14: 191–209. Eichengreen, Barry. The Populist Temptation (Oxford University Press, 2018).

408  Research handbook on the politics of constitutional law Estella, Antonio. Legal Foundations of EU Economic Governance (Cambridge University Press, 2018). Ferrera, Maurizio. (2009). ‘The JCMS Annual Lecture: National Welfare States and European Integration: In Search of a “Virtuous Nesting”,’ Journal of Common Market Studies 47: 219–33. Ferri, Delia & Fulvio Cortese (eds). The EU Social Market Economy and the Law: Theoretical Perspective and Practical Challenges for the EU (Routledge, 2020). Frieden, Jeffry & Stefanie Walter. (2017). ‘Understanding the Political Economy of the Eurozone Crisis,’ Annual Review of Political Science 20: 371–90. Garben, Sacha. (2017). ‘The Constitutional (Im)Balance between the Market and the Social in the European Union,’ European Constitutionalism 13: 23–71. Gilbert, Mark. European Integration, A Concise History (Rowman & Littlefield Publishers, Inc., 2012). Giubboni, Stefano. Social Rights and Market Freedom in the European Constitution (Cambridge University Press, 2006). Hay, Colin & Daniel Wincott. The Political Economy of European Welfare Capitalism (Palgrave Macmillan, 2012). Hayek, Friedrich A. ‘The Economic Conditions of Interstate Federalism’ in F.A. Hayek, Individualism and Economic Order (Routledge & Kegan Paul Ltd., 1952). Hix, Simon. What’s Wrong with the European Union & How to Fix It (Polity Press, 2008). Hooghe, Liesbet & Gary Marks. (2008). ‘A Postfunctionalist Theory of European Integration: From Permissive Consensus to Constraining Dissensus,’ British Journal of Political Science 39: 1–23. Höpner, Martin & Armin Schäfer. (2012). ‘Embeddedness and Regional Integration: Waiting for Polanyi in a Hayekian Setting,’ International Organization 66: 42–55. Joerges, Christian. ‘The European Economic Constitution and Its Transformation Through the Financial Crisis’ in Dennis Patterson & Anne Södersten (eds) A Companion to European Union Law and International Law (Wiley-Blackwell, 2013). Joerges, Christian. (2010). ‘Rechstaat and Social Europe: How a Classical Tension Resurfaces in the European Integration Process,’ Comparative Sociology 9: 65–75. Kennedy, Duncan. ‘Three Globalizations of Law and Legal Thought: 1850–2000’ in David M. Trubek & Alvaro Santos (eds) The New Law and Economic Development: A Critical Appraisal (Cambridge University Press, 2006). King, Lawrence, Michael Kitson, Sue Konzelmann & Frank Wilkinson. (2012). ‘Making the same mistake again- or is this time different?,’ Cambridge Journal of Economics 36: 1–15. Lassser, Mitchel. (2014). ‘Fundamentally Flawed: The CJEU’s Jurisprudence on Fundamental Rights and Fundamental Freedoms,’ Theoretical Inquires in Law 15: 229–60. Marglin, Stephen A. & Juliet Schor (eds) The Golden Age of Capitalism, Reinterpreting the Postwar Experience (Oxford University Press, 1992). Matthijs, Matthijas & Mark Blyth (eds) The Future of the Euro (Oxford University Press, 2015). McCann, Dermot. The Political Economy of the European Union: An Institutionalist Perspective (Polity Press, 2010). McNamara, Kathleen. The Currency of Ideas: Monetary Politics in the European Union (Cornell University Press, 1998). Menendez, Augustin Jose. (2013). ‘The Existential Crisis of the European Union,’ German Law Journal 14: 453–526. Milward, Alan S. The European Rescue of the Nation State, 2nd edition (Routledge, 2000). Mody, Ashoka. Euro Tragedy: A Drama in Nine Acts (Oxford University Press, 2018). Moravcsik, Andrew. ‘Negotiating the Single European Act’ in Robert O. Keohane & Stanley Hoffmann (eds) The New European Community: Decisionmaking and Institutional Change (Westview Press, 1991). Moravcsik, Andrew. The Choice for Europe: Social Purpose& State Power from Messina to Maastricht (Cornell University Press, 1998). Moschonas, Gerassimos. (2009). ‘When institutions matter: the EU and the identity of social democracy,’ Renewal 17(2): 11–20. Nairn, Tom. (1972). ‘The Left Against Europe?,’ New Left Review 75: 5–120. Nicol, Danny. The Constitutional Protection of Capitalism (Hart, 2010). Ostry, Jonathan D., Prakash Loungani & Davide Furceri. (2016). ‘Neoliberalism Oversold?,’ Finance and Development 53: 38–41.

The neo-liberal bias of the EU constitutional order: a critical analysis  409 Patel, Kiran Klaus. Project Europe: A History (Cambridge University Press, 2020). Pollack, Mark A. ‘A Blairite Treaty: Neo-Liberalism and Regulated Capitalism in the Treaty of Amsterdam’ in Karlheinz Neunreither & Antje Wiener. European Integration After Amsterdam: Institutional Dynamics and Prospects for Democracy (Oxford University Press, 2000). Rieter, Heinz & Matthias Schmolz. (1993). ‘The ideas of German Ordoliberalism 1938–45: pointing the way to a new economic order,’ European Journal of History of Economic Thought 1: 87–114. Rodrik, Dani. The Globalization Paradox: Democracy and the Future of the World Economy (W.W. Norton & Company, 2011). Rosamond, Ben. (2002). ‘Imagining the European Economy: Competitiveness and the Social Construction of “Europe” as an Economic Space,’ New Political Economy 7: 157–77. Ross, George. ‘European Center-Lefts and the Mazes of European Integration’ in James Cronin, George Ross & James Shoch (eds) What’s Left of the Left: Democrats and Social Democrats in Challenging Times (Duke University Press, 2011). Ruggie, John Gerard. (1982). ‘International Regimes, transactions, and change: embedded liberalism in the postwar economic order,’ International Organization 36: 379–415. Sassoon, Donald. One Hundred Years of Socialism: The West European Left in the Twentieth Century (The New Press, 1996). Scharpf, Fritz W. (2002). ‘The European Social Model: Coping with the Challenges of Diversity,’ Journal of Common Market Studies 40: 646–70. Scharpf, Fritz W. (2010). ‘The Asymmetry of European integration, or Why the EU Cannot be a “Social Market Economy”,’ Socio-economic Review 8: 211–50. Schiek, Dagmar. (2017). ‘Towards More Resilience for a Social EU – the Constitutionally Conditioned Internal Market,’ European Constitutional Law Review 13: 611–40. Singer, Joseph W. (1988). ‘Review Essay: Legal Realism Now,’ California Law Review 76: 465–544. Stephan Liebfried & Paul Pierson. ‘Semisovereign Welfare States: Social Policy in a Multitiered Europe’ in Stephan Liebfried & Paul Pierson (eds) European Social Policy: Between Fragmentation and Integration (The Brookings Institution, 1995). Streeck, Wolfgang. ‘From Market Making to State Building? Reflections on the Political Economy of European Social Policy’ in Stephan Liebfried & Paul Pierson (eds) European Social Policy: Between Fragmentation and Integration (The Brookings Institution, 1995). Streeck, Wolfgang. ‘Neo-Voluntarism: A New European Social Policy Regime?’ in Gary Marks, Fritz W. Scharpf, Philippe Schmitter & Wolfgang Streeck (eds) Governance in the European Union (Sage Publications, 1996). Streeck, Wolfgang. (2012). ‘Markets and Peoples: Democratic Capitalism and European Integration,’ New Left Review 73: 63–71. Supiot, Alain. (2009). ‘Possible Europes,’ New Left Review 57: 57–65. van Apeldoorn, Bastiaan. ‘The Contradictions of “Embedded Neoliberalism” and Europe’s Multi-level Legitimacy Crisis: The European Project and its Limits’ in Bastiaan van Apeldoorn, Jan Drahokoupil & Laura Horn (eds) Contradictions and Limits of Neo-Liberal European Governance: From Lisbon to Lisbon (Palgrave Macmillan, 2009). Veraldi Jacquelyn D. & Matthew R. Hassall. ‘The Politics of the Constitutionalisation of Corporate Power in Europe’ (Chapter 20 of this volume, 2023). Wilkinson, Michael. Authoritarian Liberalism and the Transformation of Modern Europe (Oxford University Press, 2021).

23. The politics of the constitutionalisation of international law: The United Nations sovereign (in)equality of states, good neighbourliness and use of force Elena Basheska

1. INTRODUCTION Discussions about constitutionalisation in international law or international constitutionalism are neither new nor conclusive.1 Constitutionalisation refers to the process of enhancement of international law to resemble properties of domestic constitutions to a certain extent.2 Indeed, as put by Peters, constitutionalisation may be seen as a ‘continuing process of the emergence, creation, and identification of constitution-like elements in the international legal order’.3 According to Kleinlein, however, constitutuionalisation in international legal context implies that ‘a degree of “objectivity” (has been reached) to limit state sovereignty like a constitutional order’.4 For advocates of constitutionalisation, a common interest of humanity transcends national borders and the spheres of interest of individual states.5 In such circumstances constitutional principles set limits to actions of states while international organisations achieve certain level of independence from their Member States.6 International constitutionalism is, in Falk’s words, an ‘extension of constitutionalist thinking to world order’,7 while Peters uses the expression for theories and a political agenda that ‘advocate the application of constitutional principles, such as the rule of law, checks and balances, human rights protection, and democracy, in the international legal sphere in order to improve the effectivity and the fairness of the international legal order’.8 The United Nations (UN) has been characterised by constitutionalists as a representative of the international community,9 and the UN Charter as the constitution of such community.10 It has been further argued that division of powers and superiority between the two main UN organs – the UN General Assembly (UNGA) and the UN Security Council (UNSC) – have See, among others, O’Donoghue (2013); Kleinlein (2012); Petersmann (1997); Eggett (2019); Fabbrini (2013); Peters (2016); Dahlman (2012); Fassbender (2016); Cohen (2012). 2 cf Tushnet (2023) and Craig (2023). 3 Peters (2016), 582. 4 Kleinlein (2012), 703. 5 Ibid. 6 Ibid. 7 Falk (1993), 13, 14. 8 Peters (2016), 583. 9 cf. Conklin (2012). See also Sreenivasa Rao (2011), 326. 10 See e.g. Fassbender (1998), 585 et seq. cf. Doyle (2009); Franck (2003). 1

410

The politics of the constitutionalisation of international law  411 been established under Article 12 of the UN Charter which provides that ‘[w]hile the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the [UN] Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests’.11 In Chapter IV, the UN Charter defines the functions and powers of the UNGA and Article 24 sets out the functions and powers of the UNSC as a principal organ for the maintenance of the international security acting on behalf of its members. Both Article 24 and especially Article 25 of the UN Charter under which ‘sovereign states have agreed to accept general policy decisions they may not have voted for’12 have been viewed as legal provisions of high constitutional significance.13 Other scholars, however, have emphasised the inability of international organisations in general and of the UN in particular to satisfy the requirements of democracy and separation of powers even in reasonably modified versions.14 It has been argued, for instance, that the UNSC can hardly be a true representative of the international community given the differentiation among states in terms of selective conferral of certain rights, such as the permanent membership in the UNSC and the power of veto of the permanent UNSC members,15 as well as their significant factual powers. In particular, the UNSC consists of 15 UN members, five of which are permanent – China, France, the Russian Federation, UK, and the USA16 – all five being nuclear powers. The other 10 non-permanent UNSC members are generally chosen for a term of two years.17 The UNSC members have one vote each and decisions on procedural matters are made by an affirmative vote of nine members.18 On all matters, however, decision of the UNSC are made by ‘an affirmative vote of nine members including the concurring votes of the permanent members’.19 In other words, the UN Charter establishes a veto power for the five permanent members by requiring their concurring votes with regard to all substantive decisions. In the view of some critics, such voting structure and dominance of the big five, portrays the UNSC as ‘an exclusive nuclear club, whose powers are unchecked, with lack of true international representation’.20 The truth, however, may lie somewhere in-between: while the UN has a real potential of becoming a true representative of the international community and the UN Charter displays certain constitutional features, the entire UN system reveals serious deficiencies that undermine any prospects of constitutionalising international law. The analysis of all such deficiencies goes beyond the scope of this chapter which is rather focused on the international constitutional principle of sovereign equality of states as a fundamental basis of peaceful co-existence and good neighbourly relations between states in the light of legal privileges

Macdonald (1999). Ibid. 13 Ibid. 14 Peters (2016), 600. 15 Ibid. 16 Article 23(1) UN Charter. 17 In accordance with Article 23(2) of the UN Charter, however, ‘[i]n the first election of the non-permanent members after the increase of the membership of the Security Council from eleven to fifteen, two of the four additional members shall be chosen for a term of one year. A retiring member shall not be eligible for immediate re-election’. 18 Article 27(2) UN Charter. 19 Article 27(3) UN Charter. 20 Christopher et al. (2021). 11 12

412  Research handbook on the politics of constitutional law and factual powers of states (i.e. their economic, political and military powers). The ‘general principle’21 of good neighbourliness is the first purpose of the UN Charter. Emerging from sovereign equality of states, good neighbourliness is one of the most important principles of international law relating to harmonious interstate relations and limiting actions of sovereign states. Both the principle of sovereign equality of states and the good neighbourliness principle are inseparably connected to the prohibition of the use of force enshrined in Article 2(4) of the UN Charter which is ‘a cornerstone of at least a minimal constitutional order at the international level’.22 An infringement of Article 2(4) would almost necessarily lead to breach of sovereign equality and good neighbourliness principles – both being the essence of the doctrine of international constitutionalism. In an organisation with a strong emphasis on the collective interest of international peace and security such as the UN, strict enforcement of the prohibition of the use of force is vital to the survival of the international legal system as such. Yet, ‘policy statements and legal obligations are one thing, implementation quite another’.23 The UNSC permanent members have regularly used their institutional and political powers for advancing their national interests in the international scene rather than for promoting the UN Charter. Such actions are not only anti-constitutionalist but lead to deformalisation24 of international law and dynamism that promotes a culture of various interpretations. Both pave the way for re-interpretation of the rules of international law in accordance with the values and preferences of powerful states. To agree with Ansong, however, ‘[j]uridicial’ equality is (…) empty if it cannot translate into effective equality, at least at the level of law creation in international organisations’.25 International law exceptionalism of individual states undermines the normative power of international law and widens differentiation between states, creating thus a fruitful ground for ‘the Empire (to) project its internal morality to the world at large’.26 Indeed, international law is not too much different from domestic law in the sense that: ‘[t]hose holding the levers of economic and political power in society naturally exercise greater control over the laws of their country than those lacking such power’.27 Even more worrisome, however, are the numerous examples in history of factually powerful states subjecting other states to their own authority. The misuse of factual powers and international law exceptionalism, to which ‘quasi-absolutist (veto) powers’28 of the UNSC permanent members have largely contributed are ‘contagious’, encouraging wider disobedience among UN members, especially among the most powerful ones.29

Article 74 UN Charter. Thilo Marauhn, ‘How Many Deaths Can Article 2(4) UN Charter Die?’ in Lothar Brock & Hendrik Simon (eds) The Justification of War and International Order: From Past to Present (Oxford Academic,  2021;  online edn),  https://​doi​.org/​10​.1093/​oso/​9780198865308​.003​.0025,  449, 461. 23 Khaliq (2008), 2. 24 The process of deformalisation, as plainly put by Peters (2016), at 610, is how a number of scholars have described ‘the resort to some “higher” legitimacy arguments in opposition to and in violation of international legality’. 25 Ansong (2016), 13. 26 Koskenniemi (2001), 492. 27 Müllerson (2002), 730. See also Ganty (2023) and Begadze (2023). 28 Cohen (2011), 147. 29 Jure Vidmar, ‘Excusing Illegal Use of Force: From Illegal but Legitimate to Legal Because it is Legitimate?’ (EJIL: Talk!, 14 April 2017) https://​www​.ejiltalk​.org/​excusing​-illegal​-use​-of​-force​-from​ -illegal​-but​-legitimate​-to​-legal​-because​-it​-is​-legitimate/​. 21 22

The politics of the constitutionalisation of international law  413 The international constitutional principle of sovereign equality of states in the light of legal privileges and factual powers of states are discussed in Section 2 of this chapter. In principle, sovereign states are equal before the law, enjoying the same rights and having equal legal capacity in their exercise.30 The greater factual powers of certain states or veto powers of permanent UNSC members should not be an obstacle for other states to enjoy their rights in full sovereignty. In circumstances where sovereignty is attributed to all states individually, equality is the only answer for regulating interstate relations.31 At the same time, the exercise of the state rights inherent in full sovereignty is only possible where the good neighbourliness principle is respected in governing interstate relations. In contrast, the violation of the principle can lead to serious confrontations or military conflicts.32 Section 3 of this chapter discusses the legal basis of the good neighbourliness principle which limits actions of sovereign states. Neighbours have equal rights to exercise their rights and an equal duty to consider the rights of the others. Therefore, ‘mutuality or reciprocity ‒ that is, equivalency of station and interchange’ is necessary for the maintenance of peaceful and friendly relations between states.33 Sovereignty is exercised within borders and entails (inter alia) non-interference by other states. The prohibition of the use of force is, therefore, closely related to the promotion of both sovereign equality of states and good neighbourliness. The specificities of that provision are discussed in Section 4 of this chapter which also elaborates on various forms of infringement of the prohibition of the use of force by states with legal privileges within the UN and greater factual powers as well as the consequences of such infringements for the process of constitutionalisation of international law. Drawing on previous sections, Section 5 presents the general conclusions of this chapter.

2.

INTERNATIONAL CONSTITUTIONALISM AND SOVEREIGN EQUALITY OF STATES

The sovereignty of states is the basic constitutional principle of international law and a well-recognised quality of states as international persons denoting their independent course of action. As subjects of international law, states possess international legal personality or legal capacity that conveys on them certain rights and obligations arising from international law.34 They are distinguished from all other subjects of international law by their specific characteristics, amounting to a full international legal personality implying that they may perform any planned activity and ‘are only limited by rules of public international law, by decisions of international organisations and by transfer of competencies to (international organisations)’.35

30 Article 4 Montevideo Convention on Rights and Duties of States (signed 26 December 1933, in force 26 December 1934). 31 See e.g. Cosnard (2003), 121. 32 Beyerlin (1997), 537. 33 Cosnard (2003), 121. 34 As specified by the International Court of Justice (ICJ) in ICJ, Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 179, ‘possession of international legal personality indicates that subjects of international law are ‘capable of possessing international rights and duties and [having] capacity to maintain [their] rights by bringing international claims’. 35 Frid (1995), 12.

414  Research handbook on the politics of constitutional law Interferences by other states contravene the principle of sovereignty, rendering the exercise of full sovereign rights of states impossible. Sovereignty is directly connected with the principle of equality of states, which is a corollary of the coexistence of sovereign states. The principle of the sovereign equality of states is articulated in the ‘Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the UN Charter’ of the UN General Assembly.36 The Declaration on Friendly Relations was envisaged as a means for the codification and further development of the UN Charter principles.37 It is embodied in a declaratory resolution of the UN General Assembly – i.e. a non-binding document which nevertheless represents ‘an important link in the continuing process of development and formulation of new principles of international law’.38 The Declaration on Friendly Relations stipulates that all states enjoy sovereign equality39 which presupposes their: (a) (b) (c) (d) (e) (f)

judicial equality; rights inherent in full sovereignty; duty to respect the personality of other states; inviolability of territorial integrity and political independence of the state; right to freely choose and develop their political, social, economic and cultural systems; duty to comply fully and in good faith with their international obligations and to live in peace with other states.40

The elements of sovereign equality reflect the rights and obligations of states resulting from their two generally recognised attributes: sovereignty and equality. The concept of territorial sovereignty grants all states a maximum of freedom in dealing with their internal and external affairs. Internally, it denotes the territorial integrity of states i.e. their exclusive authority within the territorial limits of national jurisdiction; while externally it refers to the political independence or independent conduct of states in their international relations.41 At first glance, internal and external sovereignty seem to have conflicting natures, providing possibilities for clashes between rights and obligations for which ultimately the same legal justification – namely territorial sovereignty – can be invoked by two or more states.42 While internal sovereignty empowers states to exclude the actions of other states on their territories, external sovereignty gives them freedom of choice and action.43 They should nevertheless not 36 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the UN Charter, UNGA Res 2625 (XXV) (24 October 1970) (Declaration on Friendly Relations). 37 See Briggs (1969); Hazard, (1964); Sinclair (1994) on the framework within which the Declaration on Friendly Relations was prepared. 38 Friedmann (1964), 139. See also Gross (1984). 39 Article 2(1) UN Charter stipulates that the ‘Organisation is based on the principle of the sovereign equality of its Members’. For the early ideas on sovereign equality of states, see in particular Grotius (2001); de Vattel (1983). 40 Declaration on Friendly Relations. 41 On the distinction between internal and external sovereignty, see Wheaton (1916), 35–37; Kelsen (1952), 170–77; Merriam (1900), 214–16. 42 Brunnée (1988), 85–87. 43 In Island of Palmas (Netherlands v. USA (1928) 2 RIAA 829−871, 838, the Arbitrator Judge Max Huber emphasised that ‘[i]ndependence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of international law, have

The politics of the constitutionalisation of international law  415 be considered different types of sovereignty ‘but rather [its] complementary, always coexisting, aspects’ reflecting rights and duties of states under the international law.44 The compromise between internal and external sovereignty is most appropriately perceived through the obligation of states to respect each others’ territorial sovereignty in their international relations.45 The power of states to exclude the actions of any other state or entity in exercising their state functions creates a duty for states to abstain from exercising their powers in the territory of other states unless there is a permissive rule to the contrary deriving from international law.46 The principle of equality does not refer to the unequal position of states in terms of their economic, political or military power. Instead, the principle refers to the equal application of the law ‘in conformity with the law’.47 Thus it implies equal treatment of states before the law, rather than in the law addressing judicial bodies and not the rights of states.48 As such, the principle of legal equality is meant to be preserved primarily by equal observance of duties and rights of all sovereign states as provided by international law. In other words, the greater factual powers of certain states or their legal privileges within the UN should by no means serve the purposes of avoiding duties that equally oblige all sovereign states, and any attempt to abuse these powers should be in breach of the principle of the legal equality of states. Equality was also not meant to be affected by the differentiation among states in terms of the selective conferral of certain rights, such as the permanent membership in the UNSC.49 In reality, however, factual powers of states and veto powers of permanent UN members have proved to be a powerful tool for undermining international legal rules and shaping international law contrary to the intentions and purposes of the UN Charter. Indeed, the relationship between the principle of sovereign equality of states and the differentiation in their factual powers has a conflicting nature which although elegantly reconciled in the UN Charter, remains an uneasy one. It was the ‘big five’ who won the World War II in

established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations’. 44 Philpott (1997), 20. 45 In the ICJ, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) (Merits) [1949] ICJ Rep 4 the ICJ emphasised that ‘between independent states respect for territorial sovereignty is an essential foundation of international relations’. 46 The obligation of states in international law to refrain from exercising their powers in the territories of other states in absence of a permissive rule to the contrary was expressed by the PCIJ in Case of the S.S. ‘Lotus’ (France v. Turkey) [1927] PCIJ Rep Series A No 10 (para 45). One year later in Island of Palmas, 839, this stance was reaffirmed by the Arbitrator Judge Max Huber who emphasised that territorial sovereignty ‘involves the exclusive right to display the activities of a State. This right has as a corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and war, together with the rights which each State may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfil this duty. Territorial sovereignty cannot limit itself to its negative side, i.e. to excluding the activities of other states; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum of protection of which international law is the guardian’. The obligation is also expressly provided for in Article 2(4) UN Charter. 47 Kelsen (1952), 155. 48 Ibid. 49 Kelsen (1944), 209, ensures that ‘Equality does not mean equality of duties and rights but rather equality of capacity for duties and rights’. On the equal status of states under the UN Charter, see Faassbender (1998), 287–96. For a different opinion, see Fleiner & Basta Fleiner (2009), 320.

416  Research handbook on the politics of constitutional law the first place that dictated the UNSC permanent membership and the exercise of veto50 which remains an anomaly of the Organisation up to the present day. This is notwithstanding the indignation of other UN members, calls for scrapping the veto power of the permanent UNSC members or even the numerous attempts to expand the club of UNSC permanent members to reflect current circumstances of factual powers of states and to include members from other parts of the world.51 Article 23 of the UN Charter somewhat locks the permanent membership of the existing five members, not making it conditional on the strict compliance with the rules of international law or taking into consideration the role of states in the changing world, while Articles 108 and 109 give the permanent UNSC members the right to set aside any attempt intended to eliminate their legal privileges by constitutional amendment. The UNSC can be certainly creative in taking ‘improvised steps to modify or restrict the participation of a member state when the organization judged such steps necessary’,52 but such steps can hardly contribute to achieving effective equality among states and may even aggravate the situation on the ground. Greater legal privileges of permanent UNSC members were meant to counterbalance their greater responsibility in maintaining the international peace and legal order, as subjecting a ‘dwarf’ and a ‘giant’ to the same conditions may result in even greater inequalities.53 Indeed, legal privileges of the permanent UNSC members have been intended to safeguard the rules of international law including the international constitutional principle of sovereign equality of states rather than establish ‘legal hegemony’54 of the ‘big five’ which, however, has quickly started to take shape in practice. The permanent UNSC members have certainly not shied-away from promoting their national interests at the expense of the UN Charter. Yet, as pointed out at one of the UNSC meetings: ‘[a]ny approach that assumes that international law is created by majority votes in the Security Council is bound to have far-reaching ramifications which could cause irreparable harm to the credibility and prestige of the Organization, with dire consequences for a stable and peaceful world order’.55 Such actions of permanent UNSC members threaten the international constitutional principle of sovereign equality of states and peaceful inter-state relations. Equality emanates from state sovereignty and ‘by virtue of the later it is impossible to place States in a kind of hierarchy vis-à-vis each other’.56 Sovereign equality and peaceful coexistence between states requires symmetric inter-state relations, ‘mutual and shared responsibility for Self and Other’,57 unlike enmity, which ‘implies the negation of Other’.58 The inequality of states before the law, if not in the law, hinders peaceful and friendly relations between states or even makes them impossible where conflicts of interests arise. Yet such relations between states – small or big, powerful or weak – are reflected though

Christopher et al. (2021). Ibid. See also Simpson (2000), 141. 52 Thomas D. Grant, ‘Expelling Russia from the UN Security Council – a How-to Guide’ (CEPA, 26 September 2022) https://​cepa​.org/​article/​expelling​-russia​-from​-the​-un​-security​-council​-a​-how​-to​-guide/​ ?fbclid​=​IwAR1​_s3T2Y​_YDW5o1zhIcV​-1RNzlL​-RX59zY​_fVITSMwCRmNuQhpIDwMuOdE. 53 Preuss (2008), 19. 54 Simpson (2000), 139. 55 UNSC S/PV.3063 (31 March 1992), 54˗55. 56 Wouters (2001), 319. 57 Hutter (1978), 11‒12. 58 Ibid. 50 51

The politics of the constitutionalisation of international law  417 the international legal principle of good neighbourliness which is inseparably connected to the constitutional principle of sovereign equality of states.

3.

THE PRINCIPLE OF GOOD NEIGHBOURLINESS IN INTERNATIONAL LAW

The principle of the sovereign equality of states has necessarily inspired the emergence of many other principles and legal rules reifying the rights and duties of states under international law. One of these principles, guiding the external policies of states and underlying the formulation of international jurisprudence, is the principle of good neighbourliness. Good neighbourliness is the first purpose of the UN Charter, which refers to the determination of the UN peoples ‘to practice tolerance and live together in peace with one another as good neighbours’59 in order to achieve the objectives of the UN in preventing war, promoting respect for human rights and international law, as well as promoting social progress and better living conditions.60 Article 74 UNC refers to the wellbeing of the rest of the world in social, economic and commercial matters to be achieved through the application of the general principle of good neighbourliness.61 Although referring to the protection of the non-self-governing territories, the relevant provision explains the view of the UN and its Member States towards the principle of good neighbourliness.62 The legal value and constitutional significance of the good neighbourliness principle, can therefore, not be overstated. Most scholars perceive good neighbourliness as a principle of international law. Thus, for Kelsen, good neighbourliness is a principle which should have been included within the first chapter of the UN Charter, enumerating the purposes and principles of the organisation.63 Verdross considers good neighbourliness a ‘gradually emerging principle […] which has now been solemnly anchored to the Preamble of the Charter of the UN’.64 Fitzmaurice and Elias see the good neighbourliness principle as ‘fundamental in the law governing the use of shared

Preamble of the UN Charter (adopted 26 June 1945, in force 24 October 1945) 59 Stat. 1031. See also in this respect the Resolution on the ‘Development and strengthening of good-neighbourliness’, UNGA Res 46/62 (9 December 1991) UN Doc/A/Res/46/62 (UN Doc/A/Res/46/62), where the General Assembly stresses that ‘living together in peace with one another as good neighbours is one of the means by which the ends of the United Nations are to be achieved’ and also that ‘by acting as good neighbours, States can help to ensure that the ends for which the United Nations was established are achieved’. 61 The importance of Article 74 UN Charter has been confirmed by principle 13 of the more recent Maastricht principles which stipulates the duty of states to ‘avoid conduct that creates real risk to the enjoyment of economic, social and cultural rights outside the national territory of (their state)’. Experts from many universities and organisations, as well as former and (then) actual members of regional and international human rights bodies and Special Rapporteurs of the UN Human Rights Council gathered on 28 September 2011 to adopt principles in the field of extra-territorial human rights obligations (Maastricht principles): de Schutter et al. (2012). 62 See for instance Kelsen (1952), 112–14, who stipulates in his analysis of Article 74 UN Charter that the relevant provision concerning good neighbourliness is binding upon all contracting parties rather than members administering territories, as much as the other obligations imposed by the Treaty upon all members. 63 Kelsen (1951), 11–12. 64 Verdross (1964), 292–94, translated in Lammers (1984), 565. 59 60

418  Research handbook on the politics of constitutional law resources’.65 Jenks regards the good neighbourliness principle as ‘a potential source of specific legal obligations’.66 According to Goldie, ‘[g]ood neighbourliness is an emerging principle of international law with many transnational law qualities’.67 Apart from its general acceptance, the crystallisation of the good neighbourliness principle in international law has also aroused different doctrinal approaches. The core question which divides scholars concerns the legal nature of the good neighbourliness principle. While the majority of authors see the basis of the principle of good neighbourliness in customary international law,68 a smaller group of authors argue that it is a general principle of international law in sense of Article 38(1)(c) of the Statute of the ICJ.69 Disagreements among scholars over the legal nature of good neighbourliness can be explained with the broad scope of the principle, which complicates its exclusive association with the rules of customary law or with general principles of law. Another reason is the non-existent sharp distinction in international law between the two, apart from the conclusion that general principles of law are vaguer than customary rules and their establishment does not require the constant practice of states since they emerge at the moment of recognition by states.70 More important is the fact that customary international law has the upper hand in comparison to general principles of law in the informal hierarchy of sources of international law.71 In a strict sense, this implies that if classified as a general principle of law, the good neighbourliness principle may be overridden by customary rules of international law. This is, however, not as simple as it appears, since the actual implementation of general principles can transform these sources over time into customary rules of international law, in which case general principles ‘do not disappear, but are hidden by customary rules with the same content’.72 This could also be the case with the good neighbourliness principle, which can be considered a general principle of law and also a customary international rule observed repeatedly by the overwhelming majority of states in a multitude of circumstances and thus having been accepted as law by states.73 While recognising the fact of possible overlaps, detailed analysis of the two different sources in international law subsuming good neighbourliness is beyond the scope of this chapter. Fitzmaurice & Olufemi Elias (2004), 5. Jenks (1967), 92. 67 Goldie (1972), 129 (footnotes omitted). 68 See for instance: Andrassy (1951); Thalmann (1951), 135–36; Wildhaber (1975), 102; Beyerlin (1997), 539; Brunnée (1988), 85, 87; Sands (1995), 183‒84. 69 Hacket (1994); less precise in this respect is von der Heydte (1960), 133, who speaks of general principles of law in the sense of Article 38(1)(c) – which may be found in every legal system – and of specific principles of law – which are characteristic of some legal systems – without saying where the principle of good neighbourliness belongs. According to Lammers (1984), 566, von der Heydte probably considers good neighbourliness a general principle of law in the sense of Article 38(1)(c), as he states that the principle sic utere tuo ut alienum non laedas is at its heart. 70 Verdross (1968), 526. 71 ILC, Report of the International Law Commission on the works of its fifty-sixth session, 3 May to 4 June and 5 July to 6 August 2004, UN Doc. A/59/10 (2004) 286. 72 Quoc Dinc et al. (1994), 304. 73 In Nicaragua case (Nicaragua v. USA) (Merits) [1986] ICJ Rep. 98, para 207, the ICJ has confirmed that custom is constituted by two elements: an objective element implying that the acts concerned should amount to a ‘settled practice’ and a subjective element according to which the practice should be accompanied by opinio juris sive necessitatis, i.e. ‘either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it’. 65 66

The politics of the constitutionalisation of international law  419 The UN Charter spells out good neighbourliness as a ‘general principle’ accepted by all Member States. The principle is also implied in the Preamble to the UN Charter, which highlights the determination of all the peoples of the UN ‘to practice tolerance and live together in peace with one another as good neighbours’ in order to achieve the objectives of the UN in preventing war, promoting respect for human rights and international law, as well as promoting social progress and better living conditions.74 Apart from these two references, however, the Charter does not provide any further explanation as to the meaning and substance of the good neighbourliness principle. In his dissenting opinion regarding the Legality of the Threat or Use of Nuclear Weapons under international law, Judge Weeramantry explained the nature and the meaning of the good neighbourliness principle as follows: [The principle of good neighbourliness] is one of the bases of modern international law, which has seen the demise of the principle that sovereign states could pursue their own interests in splendid isolation from each other […] The Charter’s express recognition of such a general duty of good neighbourliness makes this an essential part of international law.75

While the UN has failed to map the principle of good neighbourliness, the UNGA resolutions and related discussions within the organisation are helpful to better understanding its content. Thus, it has been made clear that good neighbourliness is founded upon the strict observance of the principles of the UN Charter and of the Declaration on Friendly Relations.76 These principles form the main legal basis of the good neighbourliness principle and are embodied in Article 2 UN Charter. Their adoption as the legal basis of good neighbourliness has been widely confirmed by states77 and firmly incorporated in their bilateral and multilateral treaties on friendship, based on the fundamental principles of international law and reaffirming their binding legal effect.78 Their legal value emanates from the binding character of the UN 74 See also in this respect the Resolution on the ‘Development and strengthening of good-neighbourliness’, UNGA Res 46/62 (9 December 1991) UN Doc/A/Res/46/62 (UN Doc/A/Res/46/62), where the General Assembly stresses that ‘living together in peace with one another as good neighbours is one of the means by which the ends of the United Nations are to be achieved’ and also that ‘by acting as good neighbours, States can help to ensure that the ends for which the United Nations was established are achieved’. 75 Legality of the Threat or Use of Nuclear Weapons (dissenting opinion of Judge Christopher Gregory Weeramantry) [1996] ICJ Rep 429−555, 505. 76 UN Doc A/C.6/41/L.14; UN Doc A/C.6/42/L.6; and UN Doc A/C.6/43/L.11. 77 A significant number of statements especially at the UN show that the official positions of states coincide with the Resolutions of the UNGA confirming the UN Charter international principles and the Declaration on Friendly Relations as legal basis of good neighbourliness. For overview of some of the positions of states in this respect see Pop, Components of Good Neighbourliness Between State 20‒22. 78 The ‘Declaration on the promotion of world peace and co-operation’ adopted at the Conference of Asian and African Nations at Banding of 1955, adds three additional principles next to the seven principles of the UN Charter: Recognition of the equality of all races and of the equality of all nations large and small; Respect for the right of each nation to defend itself singly or collectively, in conformity with the Charter of the United Nations; and a) Abstention from the use of arrangements of collective defence to serve the particular interests of any of the big powers and b) Abstention by any country from exerting pressures on other countries. The text of the ‘Declaration on the promotion of world peace and co-operation’ is available in the Final Communiqué of the Asian–African conference of Bandung (24 April 1955), https://​content​.ecf​.org​.il/​files/​M00822​_Ban​dungConfer​ence1955Fi​nalCommuni​ queEnglish​.pdf. Some authors, e.g. Sompong Sucharitkul, ‘The Principles of Good-Neighbourliness in International Law’, 13‒17, https://​digitalcommons​.law​.ggu​.edu/​cgi/​viewcontent​.cgi​?article​=​1559​&​

420  Research handbook on the politics of constitutional law Charter. The principles on which the good neighbourliness principle is founded are, therefore, not merely moralistic expressions but legally binding rules constraining the independent actions of states in the light of the principle of good neighbourliness. They are also largely reiterated in the Declaration on Friendly Relations,79 which extends the application of the principles to all states rather than the UN members.80 The principles contained in the Declaration on Friendly Relations have legally binding effect on the force of the UN Charter.81 Actions of states contrary to Article 2 UN Charter would almost always violate the international constitutional principle of sovereign equality of states and the principle of good neighbourliness. This is particularly the case where states act contrary to Article 2(4) UN Charter which imposes an obligation on all UN members to ‘refrain in their international relations from the threat or use of force against the territorial or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’.82 This is typical of states with greater factual powers who look into achieving their national interests and spreading their influence beyond their borders,83 unlike small states who ‘lack both the capacity and the political will to act offensively and to exert a decisive influence on other nations’.84 As noted by Raeymaeker, ‘[t]he foreign policy of small states therefore aims at withstanding pressure from the great powers, at safeguarding their territorial integrity and independence, and at insuring the continued adhesion to national values and ideals. A small power is a state context​=​pubs, insist that the three additional principles of the ‘Declaration on the promotion of world peace and co-operation’ must be also taken into account and considered foundational principles (i.e. legal bases) of good neighbourliness. Other important instruments reaffirming the basis of the good neighbourliness principle can be found in Article 3 of the Charter of the Organisation of African Unity of 25 May 1963 (disbanded 09 July 2002); Article 3 of the Charter of the Organisation of American States of 1 December 1951; Bangkok Declaration creating the Association of Southeast Asian Nations of 8 August 1967; Article 4 of the Treaty establishing the Economic Community of West African States of 28 May 1975; Article 2.1 of the Charter of the South Asian Association for Regional Cooperation of 8 December 1985. See Chapter 3 for examples and further explanation of bilateral and multilateral treaties on good neighbourliness between European states. 79 The Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the UN Charter, UNGA Res 2625 (XXV) (24 October 1970) (Declaration on Friendly Relations), enumerates the following principles: a) the obligation of states to refrain in their international relations from the threat or use of force against the territorial or political independence of any state; b) peaceful settlement of international disputes by states; c) non-intervention in matters within the domestic jurisdiction of one state; d) co-operation among states in accordance with the UN Charter; e) equal rights and self-determination of peoples; f) sovereign equality of states; g) duty of states to fulfil in good faith the obligations assumed in accordance with the UN Charter. 80 The Declaration on Friendly Relations was envisaged as a means for the codification and further development of the UN Charter principles: see Briggs (1969); Hazard (1994) on the framework within which the Declaration on Friendly Relations was prepared. 81 Arangio-Ruiz (1979), at 96, emphasises that the principles of the UN Charter embodied in the Declaration on Friendly Relations are only ‘valid as part of the Charter and by virtue of the Charter alone’, while the Declaration ‘only adds a hortatory element to those principles which are and remain binding on the strength of the Charter’ (emphasis in original). He further notes that other principles ‘expressed or implied’ in the UN Charter, as well as principles, rules or Treaty law outside the Charter ‘are legal on their own strength’, i.e. either as being embodied in treaties or being part of the general international law. For an extensive summary on the opinions of states regarding the legal value of the Declaration on Friendly Relations see Gross (1971), 517–19 (contribution by Roger M. Witten). 82 Article 2(4) UN Charter. 83 Bjøl (1971), 30˗31. 84 de Raeymaeker (1974), 18.

The politics of the constitutionalisation of international law  421 on the defensive, a state that thirsts for security’.85 Yet, even safeguarding territorial integrity and independence has proven to be a challenge for numerous states in stark contrast to the intentions and purposes of the UN Charter.

4.

PROHIBITION OF THE USE OF FORCE AND DEFORMALISATION OF INTERNATIONAL LAW

The prohibition of the use of force enshrined in Article 2(4) of the UN Charter is a fundamental feature of a minimal international constitutionalism.86 Article 2(7) UNC allows for an exception to the prohibition of the use of force where enforcement measures under Chapter VII are applied. Such exception, when applied in accordance with the UN Charter and relevant customary international law, is compliant with the rules of international law. The situation becomes more complex, however, when action has been taken by a sole state or a group of states on the pretext of ‘a right of humanitarian intervention’ or the ‘right to protect’ without UNSC authorisation87 and contrary to Article 2(4) UN Charter. The argument that states have ‘a right of humanitarian intervention’ or ‘right to protect’ individually where the UNSC fails to act is strictly political and does not find support in law. The international law is clear on this point – any action of a sole state or group of states against the territorial integrity or political independence of any state outside the framework of the UN Charter, i.e. without prior UNSC authorisation, is illegal. Allowing states to assess the UNSC effectiveness and act independently would significantly undermine the constitutional-like role of the crucial UN organ and would be also particularly dangerous for the international peace and security considering the possible motives and dominance of powerful states. As rightly observed by Davenas, ‘this presents risks in terms of legitimacy of the intervening actors, and also makes the intervention more likely to be influenced by these states’ parallel motivations, and thus more likely to be over-politicised’.88 Furthermore, justifying illegal use of force on humanitarian grounds is equal to lifting the lid of Pandora’s box, allowing for re-interpretation of the UN Charter and international customary law. Article 51 of the UN Charter allows states to use force without UNSC authorisation in individual or collective self-defence. The use of force under Article 51 is not, however, unconditional. It is a temporary right which appertains to UN members, i.e. to sovereign states only.89 Article 51 addresses only armed attacks that are underway. Situations where there is a threat of an armed attack rather than actual one are not covered by Article 51. That said, some armed attacks that are not explicitly mentioned in Article 51 are still regarded justified as a matter of customary international law ‘as long as the threatened attack is imminent, no other means

Ibid. Marauhn, ‘How Many Deaths Can Article 2(4) UN Charter Die?’ 461. 87 Martin Davenas, ‘The United Nations and Atrocity Crimes,’ at 10, downloadable at https://​ www​.ucl​.ac​.uk/​global​-governance/​news/​2018/​nov/​un​-and​-atrocity​-crimes​-over​-politicisation​-decision​ -making​-security​-council, 19 November 2018. 88 Ibid. 89 Chinkin (2000), 911. 85 86

422  Research handbook on the politics of constitutional law would deflect it and the action is proportionate’.90 The requirements of imminence, necessity and proportionality which are of significant legal and practical importance for the right of self-defence, have been often discussed in the context of anticipatory self-defence and brought accordingly in line with the Caroline Incident case which limits such situations to instances where there is ‘a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation’.91 Almost two centuries after the Caroline Incident case, however, the requirements of imminence, necessity and proportionality are still a matter of discussion and interpretation that fits current politics and national interests of big powers.92 While reference to customary international law is argued to be contained in the text of Article 51 which mentions an ‘inherent right’ of individual or collective self-defence,93 the UN Charter does not regulate all aspects of such right of states. The requirements of imminence, necessity and proportionality are, therefore, left at the mercy of powerful states being largely shaped in accordance with their national interests and state politics rather than leaning towards Articles 2(4) and 51 UNC. The leading role of the UNSC in carrying out operations and deciding over the use of force and the UN Charter have been largely compromised by unilateral actions of states with greater military power and organisations. In the case of Kosovo, for instance, NATO failed to gain UNSC authorisation for bombing (the then) Yugoslavia (Serbia and Montenegro), justifying its action on humanitarian grounds. The Independent International Commission on Kosovo concluded that the unilateral military action of NATO ‘was illegal but legitimate’94 paving thus the way to future disobedience and disrespect of the prohibition of unauthorised use of force by UN Member States.95 Yet, Kosovo is not the only example of such practice, even if in the past ‘a possible doctrine of unilateral humanitarian intervention had been mooted, but never gained sufficient support to be accepted’.96 Even more worrisome, however, is that the legitimisation of the ‘Kosovo case’ has created a very dangerous precedent of justifying illegal actions on a pretext of ‘a right of humanitarian intervention’ or a ‘right to protect’ and minimising the role of the UNSC and the UN Charter further. As rightly observed by Vidmar, if the trend of assessing legality on the basis of excuses continues, ‘the controversial doctrine of “illegal but legitimate” will move toward an even more controversial doctrine of “legal because it is legitimate”’.97 Russia, for instance, has repeatedly invoked protection of human rights of Russian ethnic minorities in neighbouring countries (i.e. kin minorities)98 while officially undertaking 90 Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change. A More Secure World: Our Shared Responsibility, UNGA Res A/59/565/ (2 December 2004), para 188. 91 ‘British-American Diplomacy: The Caroline Case’, https://​avalon​.law​.yale​.edu/​19th​_century/​br​ -1842d​.asp​#ash1. 92 Vita Upeniece, ‘Conditions for the lawful exercise of the right of self-defence in international law’ HS Web of Conferences 40, 01008 (2018) Int. Conf. SOCIETY. HEALTH. WELFARE. 2016, https://​ pdfs​.semanticscholar​.org/​215c/​3ae169​7a05e34a61​7ecb56848b​a15d92b652​.pdf. 93 Nicaragua v. USA, para 176. 94 Independent International Commission on Kosovo, ‘The Kosovo Report’ (Oxford University Press, 2020). 95 Vidmar (2017). 96 See Roberts (2008), 181 for a summary of cases involving humanitarian intervention before Kosovo. 97 Vidmar (2017). 98 The concept ‘kin’ is a contested one and lacks scientific or legal definition, as clearly noted by the OSCE HCNM in the introductory part of the ‘Bolzano/Bozen Recommendations on National Minorities

The politics of the constitutionalisation of international law  423 armed actions in collective self-defence based on Article 51 UNC99 – from its military operation in Georgia back in 2008,100 to the annexation of Crimea,101 to the annexation of four regions in Ukraine (Donetsk, Kherson, Luhansk and Zaporizhzhia),102 to the continued military action against Ukraine.103 Protection of the rights of kin minorities is indeed a duty of the home state and failure to do so may violate the principle of good neighbourliness. That said, however, it is not for the kin states to act on the basis of their own assessment of the situation of their kin-minority in the home state contrary to Article 2(4) UN Charter. In fact such actions can result in serious human rights abuses as Russian military operations in neighbouring countries testify.104 Other examples of seriously questionable self-defence include the military

in Inter-State Relations’ (Bolzano Recommendations) of the OSCE High Commissioner on National Minorities (June, 2008) https://​www​.osce​.org/​hcnm/​bolzano​-bozen​-recommendations. As pointed out by Palermo (2011), 5, it remains uncertain whether a common history, culture or language are sufficient elements for ‘kinship’ where the ethnic link is missing, highlighting that some states define kinship ‘in terms of blood ties and common ancestry, other in terms of a common culture, language or history or former citizenship’. Notwithstanding this, it is widely accepted that the term ‘kin state’ is used for a state which has a national minority living in another country (home-state), while a person belonging to a ‘kin-minority’ refers to a citizen of the home state with the ethnic origin of a kin-state: see in this respect the European Commission for Democracy Though Law, ‘Report on the Preferential Treatment of National Minorities by Their Kin-State’, adopted by the Venice Commission at its 48th Plenary Commission (19–20 October, 2001, Venice) (Report of the Venice Commission). 99 See e.g. Chinkin & Kaldor (2017), 129–74. 100 Russia launched a military operation in Georgia on a pretext of protecting its peacekeepers from Georgia’s attacks and the rights of people who live in Abkhazia and South Ossetia, classifying its military intervention as peace enforcement operation. See ‘Security Council Holds Third Emergency Meeting as South Ossetia Conflict Intensifies, Expands to Other Parts of Georgia’ SC/9419 (10 August 2008) https://​www​.un​.org/​press/​en/​2008/​sc9419​.doc​.htm. See also ICJ, Case Concerning Application of the International Convention on the Elimination of All Forms of. Racial Discrimination (Georgia v. Russian Federation) [2011] ICJ Rep (Georgia v. Russia) para 174. 101 See ‘Full text of Putin’s speech on Crimea’ Prague Post (19 March 2014) https://​www​.praguepost​ .com/​eu​-news/​37854​-full​-text​-of​-putin​-s​-speech​-on​-crimea. 102 The Treaties on annexation of Donetsk, Kherson, Luhansk and Zaporizhzhia have been ratified and signed in early October 2022, following the referendums in those regions that were largely characterised as ‘sham’. See the statement of the State Duma, http://​duma​.gov​.ru/​news/​55407/​. See also the statement of the Secretary-General of the UN, António Guterres, of 29 September 2022, https://​news​.un​ .org/​ru/​story/​2022/​09/​1432862. 103 ICJ, Allegation of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) [2022] General List No.182. See also ‘Truth about Ukraine’ from Film Director Nikita Mikhalkov made available by the British Embassy in London: https://​www​.youtube​.com/​watch​?v​=​_tUEA4naSFw. See also the speech of President Vladimir Putin from 21 February 2021, https://​www​.youtube​.com/​watch​?v​=​X5​-ZdTGLmZo. 104 The current situation in Ukraine has driven the UNGA adopt a resolution calling for suspension of Russia from the Human Rights Council over reports of ‘gross and systematic violations and abuses of human rights’: see ‘Remarks by Ambassador Linda Thomas-Greenfield at a UN General Assembly Emergency Special Session to Suspend Russia from the UN Human Rights Council’, https://​usun​.usmission​.gov/​remarks​-by​-ambassador​-linda​-thomas​-greenfield​-at​-a​-un​-general​-assembly​ -emergency​-special​-session​-to​-suspend​-russia​-from​-the​-un​-human​-rights​-council/​. The Resolution was supported by 93 members, while 24 members voted against and 58 abstained from voting: ‘UN General Assembly votes to suspend Russia from the Human Rights Council’, https://​unric​.org/​en/​un​-general​ -assembly​-votes​-to​-suspend​-russia​-from​-the​-human​-rights​-council/​. The Council of Europe also suspended Russia’s rights of representation on 25 February 2022, i.e. one day after Russia informed the organisation the CoE that it was withdrawing, due to ‘the serious violation by the Russian Federation

424  Research handbook on the politics of constitutional law actions of the US in Afghanistan,105 Iraq106 and Libya.107 As rightly observed by Chinkin and Kaldor, ‘states have sought to bring almost any unilateral use of force within the legal ambit of self-defence’,108 making Thomas Franck ask ‘Who killed article 2(4)?’.109 Indeed, Article 2(4) has been killed so many times that the tendency may become the norm.110 The US has been, for one, widely criticised for undermining the process of constitutionalisation in international law through its actions contrary to the prohibition of the use of force and international law exceptionalism. As observed by Koskenniemi, ‘an Empire is never an advocate of an international law that can seem only an obstacle to its ambitions’.111 Or as noted by Peters, ‘[o]verall, the current factual US hegemony does not correspond to the constitutional idea of checks and balances which might on the international plane be a substitute for the “balance of powers”’.112 Indeed, the US has been dominant in participating in ‘overseas wars of choice’113 and has the largest number of military bases in other countries.114 Yet, actions of other big powers – military or other – have been equally weakening the UN Charter and harming the prospects of constitutionalisation in international law. The ongoing Russian military action in Ukraine, for instance, has initially started on the basis of good neighbourliness treaties that establish collective self-defence between Russia and two self-proclaimed republics – Donetsk and Luhansk115 contrary to Article 51 which appertains to UN members, i.e. to sovereign states only. Put differently, the good neighbourliness treaties between Russia and the two self-proclaimed republics have not been concluded to serve the purposes of peaceful co-existence and friend-

of its obligations under Article 3 of the Statute of the Council of Europe’ – see Decision on ‘Situation in Ukraine – Measures to be taken, including under Article 8 of the Statute of the Council of Europe’ CM/Del/Dec(2022)1426ter/2.3 of 25 February 2022, https://​search​.coe​.int/​cm/​Pages/​result​_details​.aspx​ ?ObjectID​=​0900001680a5a360. 105 See e.g. Williams (2012). See also Ben Smith and & Thorp, ‘The Legal Basis for the Invasion of Afghanistan’ (Parliament, 26 February 2010) https://​researchbriefings​.files​.parliament​.uk/​documents/​ SN05340/​SN05340​.pdf; and speech of former President Trump on USA national interests, https://​www​ .nytimes​.com/​video/​us/​politics/​100000005032090/​president​-trump​-makes​-statement​-on​-syria​.html. 106 The then UN Secretary-General, Kofi Annan, has called the US-led invasion of Iraq ‘an illegal act that contravened the UN charter’. See ‘Iraq war illegal, says Annan’ BBC News (16 September 2004) http://​news​.bbc​.co​.uk/​1/​hi/​world/​middle​_east/​3661134​.stm. See also for detailed analysis Simpson (2005); David Krieger, ‘The War on Iraq as Illegal and Illegitimate’ (15 March 2015) https://​www​ .wagingpeace​.org/​the​-war​-on​-iraq​-as​-illegal​-and​-illegitimate/​. 107 See e.g. Terry (2015). 108 Chinkin & Kaldor (2017), 129–74. 109 Franck (1970). 110 For a comprehensive list of more recent interventions that ‘raise questions as to the survival of Article 2(4) UN’, see Marauhn, ‘How Many Deaths Can Article 2(4) UN Charter Die?’ 453–54. 111 Koskenniemi (2001), 34. 112 Peters (2016), 605. 113 Jeffrey D. Sachs, ‘The Western Narrative on Russia & China’ (2022) 27(246) Consortium News, https://​consortiumnews​.com/​2022/​08/​24/​the​-western​-narrative​-on​-russia​-china/​?fbclid​=​ IwAR1vDsTMdz​-Li3r057BHvkjHQ​-9meHEV​KgD5F9OhW3​hTrDMI72dw​-mZDZRo. 114 Ibid. 115 ‘Договор о дружбе, сотрудничестве и взаимной помощи между Российской Федерацией и Донецкой Народной Республикой’ of 21 February 2022 (ratified 22 February, entered in force 25 February 2022), http://​publication​.pravo​.gov​.ru/​Document/​View/​0001202202280001​?index​=​0​&​ rangeSize​=​1; and ‘Договор о дружбе, сотрудничестве и взаимной помощи между Российской Федерацией и Луганской Народной Республикой’ of 21 February 2022 (ratified 22 February, in force 25 February 2022), http://​publication​.pravo​.gov​.ru/​Document/​View/​0001202202280002.

The politics of the constitutionalisation of international law  425 ship in line with the UN Charter and the principle of good neighbourliness but to legitimise, if not legalise, an illegal action of the use of force against an independent state. Yet, this is not the first time that Russia has used the tactic of reinterpreting Article 51 of the UN Charter in accordance with its values and preferences. The Treaties on Friendship, Cooperation and Mutual Assistance with the Republics of Abkhazia and South Ossetia and the military conflict in Georgia closely resemble the same practice, stretching the scope of Article 51 of the UN Charter beyond legalistic imagination. The principle of good neighbourliness and good neighbourliness treaties have been turned into tools for using force to attain political gains by Russia in a serious backlash against prospects of constitutionalisation in international order.

5. CONCLUSION The constitutionalisation in international law is a wonderful idea of making an orderly world. The UN has emerged as the most important organisation in the management of interstate relations at the global scale, if not a true representative of the international community. The UNSC has acquired wide powers to act on behalf of all UN members for the purpose of maintenance of the international security and the UN Charter has become the most important global document giving purpose and direction to sovereign states if not exactly an international constitution. The entire UN system is based on the international constitutional principle of sovereign equality of states. States are equal in international law, enjoying the same rights and having equal capacity in their exercise. The sovereign equality of states implies their judicial equality, the rights inherent in their full sovereignty, a duty to respect the personality of other states, the inviolability of territorial integrity and the political independence of state to freely choose and develop their political, social, economic and cultural systems, and a duty to comply fully and in good faith with their international obligations and to live in peace with other states. While the principle of equality does not refer to the unequal position of states in terms of their economic, political or military power, misuse of factual powers or legal privileges within the UN weaken the constitutional principle of sovereign equality of states and the UN Charter. Good neighbourliness is another principle with significant constitutional significance. Developing out of the ideas of territorial sovereignty and equality of states in international law, good neighbourliness is the key principle underpinning the peaceful coexistence between states and a constitutional principle setting limits to state actions. The principles of sovereign equality of states and good neighbourliness are, therefore, inseperably connected and closely related to the prohibition of the use of force. The unauthorised use of force by states would almost always lead to infringement of both the principle of sovereign equality of states and the good neighbourliness principle. The consequences of such infringements accompanied by lack of accountability weaken both the UN Charter and any substantial debate about constitutionalising the international law system. Without prejudice to allowed exceptions, this is particularly the case where states act contrary to Article 2(4) of the UN Charter which imposes obligation on all UN members to refrain in their international relations from the threat or use of force against any other state. Thus, humanitarian interventions (interpreted as such by states or organisations) lacking UNSC authorisation would always be illegal, even if in some circumstances such actions are considered justified. Justifications are weakening the normative power of international law and undermine both the role of the UNSC as a principal

426  Research handbook on the politics of constitutional law organ for the maintenance of the international security acting on behalf of all UN members and the constitutional significance of the UN Charter. Furthermore, while states can legally act, either individually or collectively, in self-defence, the use of force under Article 51 of the UN Charter is not unconditional: first, the right of self-defence is a temporary right which appertains to UN members, i.e. to sovereign states only; and secondly, a threat of armed attack is regarded justified as long as the conditions of imminency, necessity and proportionality are fulfilled. That said, there is no universally accepted definition for these conditions, but they should be rather ‘resolved in the context of each particular case’116 which paves the way for re-interpretation of the scope and limits of the conditions that preclude wrongfulness of self-defence in accordance with states values and preferences to which the military actions of the US in Afghanistan, Iraq and Libya, to mention but a few, testify. Article 51 of the UN Charter does not apply to sub-national entities and the official recognition of such entities by some UN members may neither legitimise the treaties concluded with them in violation of the legal basis of the principle of good neighbourliness nor they can be invoked before any UN organ. In other words, states cannot rely on allowed self-defence actions under the UN Charter if the main conditions of the exemption do not apply. The actions of Russia amount, therefore, to dangerous re-interpretation of the UN Charter and misinterpretation of the principle of good neighbourliness. Yet, to agree with Franck, ‘[i]n international law, violators do sometimes turn out to be lawgivers’.117 The fact that Russia is still a permanent UNSC member with a veto-wielding seat during its invasion of Ukraine and amidst World War III and nuclear threats speaks volumes about the legal hegemony of the ‘big five’ and the impotence of the structure and voting system in the Organisation. International constitutionalism may be just ‘a utopian picture of the future of international law’.118 In the words of the second Secretary-General of the United Nations, Dag Hammarskjöld, ‘the United Nations was not created to bring us heaven, but in order to save us from hell’.119 While nobody returned from hell yet to testify if we have been saved, the flames of wars all over the world, the threat of nuclear war, civilian casualties and thousands of victims in a long wait for justice, the reinterpretation of international law to fit national values and preferences in the name of peace and justice, certainly do not create a heavenly picture as envisaged by mortals. As rightly observed by Schachter, ‘[t]he weaknesses of international law is often attributed to politics, more basically (…), to the international order where might makes right’.120 In international law that is indeed law121 and leans towards constitutionalism there must be no place for ‘might makes right’. While a genuine reconsideration of the UNSC structure and legal privileges of the ‘big five’ would be a good start towards constitutualisation in international law, the other malignant issue lies with the international law exceptionalism of the states with greater factual powers to which lawyers should ‘stand tall for the rule of law’.122 Without it, as noted by Müllerson and

Yearbook of the International Law Commission, 1980, vol. II (Part Two) 60, para 22. Franck (2003). 118 Houghton & O’Donoghue (2020), 38. 119 Nick Bryant, ‘UN: Seventy years of changing the world’ (BBC, 28 September 2015) https://​www​ .bbc​.co​.uk/​news/​world​-us​-canada​-34310354. 120 Schachter (1999), 200. 121 Kleinfeld (2010), 2452. 122 Franck (2003), 620. 116 117

The politics of the constitutionalisation of international law  427 initially concluded by Thucydides, the eternal law ‘that the strong shall rule the weak’123 would prevail where justice does not keep ‘anyone who was handed the chance to get something by force from getting more’.124

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PART III RIGHTS

24. The politics of constitutional rights Adam Chilton and Mila Versteeg1

1. INTRODUCTION There has been a remarkable proliferation in the number of rights countries enshrine in their national constitutions.2 Indeed, the median number of rights in national constitutions more than doubled between World War II and today.3 These rights cover an increasingly diverse set of issues. Many national constitutions now not only include civil and political rights, such as property rights and freedom of religion, but also a range of socio-economic rights, such as the right to healthcare and a right to education, as well as a set of even newer rights, including environmental rights, consumer rights, and rights for animals.4 This expansion of constitutional rights protections has been cheered on by scholars and human rights practitioners alike. Among most commentators, it is widely accepted that constitutional rights are an essential ingredient of modern constitutions,5 and even a core feature of democracy itself.6 Perhaps the core argument for constitutionalising rights is that they act as hurdles for state repression. Entrenched in the country’s highest law, codified rights draw lines that governments are not supposed to cross.7 Though constitutional rights usually apply to everyone, their chief function is protecting political minorities, who, by definition, are less capable of protecting their own interests through ordinary politics.8 Another reason for why constitutional rights are viewed as important is that they acknowledge a political community’s

1 We thank Mark Tushnet and Dimitry Kochenov for helpful comments and Alexis Ramirez for helpful research assistance. 2 This chapter draws, in various places, upon our previously published book: Chilton & Versteeg (2020). 3 Goderis & Versteeg (2014), 5 (documenting that the average constitution in 1946 contained 22.6 rights out of 108 possible rights, while six decades later, it contained 47.2 rights out of 108 possible rights); for accounts of the expansions of rights, see Chilton & Versteeg (2020), 83–84; Law & Versteeg (2011), 1194–98; see also e.g. Law & Versteeg (2013), 865–69; Gardbaum (2012), 177. 4 Boyd (2013), 45–78 (tracking the proliferation of environmental rights); Jung, Rosevear & Hirschl (2015), 1054 (documenting the prevalence of socioeconomic rights). 5 See e.g. Bellamy (2007), 15 (noting that ‘nothing has been so influential in driving constitutionalism along the path of legal rather than political thought than the emphasis on rights …’); Gardbaum (2012), 176–77 (noting that ‘the incorporation of a bill of rights into constitutional law–with its usual characteristics of supremacy, entrenchment, and judicial enforceability–has been a standard feature, one we now associate with a “normal” state’). 6 See e.g. Sunstein (2001), 97 (noting that constitutional rights that permit ‘the people to protect democratic processes against their own potential excesses or misjudgments’ are ‘not at odds with the commitment to self-government but instead a logical part of it’ as ‘the internal morality of democracy’); see also Ely (1980), 73. 7 Sajó (1999), 248 (‘The belief that people are entitled to certain rights, irrespective of what the state may desire, restricts power in a way that is advantageous for the individual.’). 8 See e.g. Horowitz (2007), 959.

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The politics of constitutional rights  433 values.9 Regardless of the exact justifications, constitutionalising rights is near universally regarded as a good thing. But many of the academic accounts of constitutional rights that focus on their normative and theoretical justifications do not fully grapple with the political realities of rights adoption and enforcement. Rights do not just reflect lofty ideals, but also reflect important political calculations. Notably, the choice to adopt or enforce certain rights has important distributional consequences. To illustrate, property rights might favour elites, while social rights might force redistribution to broader swaths of society (while committing to both will set up competing claims).10 And as a growing number of rights are constitutionally protected, competing rights claims could hamper the enforcement of core rights, and lower overall levels of rights protection within a country. Rights, then, do not just operate in the realm of law or philosophy, but are also political institutions.11 Moreover, focusing on the normative desirability of rights can obscure important questions about how they operate in practice. Our aim is to separate fact from fiction and to focus on the politics of rights instead of their normative or theoretical appeal. In doing so, we draw on the best available evidence on rights adoption and enforcement, produced by scholars working in comparative constitutional law, political science, political economy, and related disciplines (the confluence of these fields is often referred to as ‘comparative constitutional studies’12). Our hope is that this will paint a more accurate picture of the adoption and enforcement of rights than the one that emerges from academic accounts that simply offer normative or theoretical justifications for the adoption and expansion of constitutional rights. We specifically explore three topics related to the politics of constitutional rights. First, we explore rights adoption. While it might be appealing to view rights adoption as the product of constitution-makers consciously tying their own hands during a deliberative process, the reality of rights adoption is often less sanguine: rights reflect political calculations by self-interested actors, and in some cases, rights-content is simply copied and pasted from elsewhere. Second, we explore rights enforcement. While it is tempting to assume that rights are so compelling that they will automatically be upheld, it turns out that rights enforcement is also fraught with politics. Notably, for rights to become more than mere words on paper, committed groups of citizens need to dedicate time and resources and mobilise for their enforcement. Third, we explore the possible political implications of rights proliferation. Despite the evidence that many rights are not associated with improved rights practice, many scholars and practitioners appear to assume that constitutionally protecting more rights is better than protecting a smaller number of rights. But the tendency for countries to adopt an ever-increasing set of rights might have important downsides: it creates competing rights claims that are hard to resolve and potentially allows savvy political actors to ignore core rights based on the argument that they are prioritising some rights over others.

See generally Harel (2014). See Hirschl (2013), 165. 11 Ibid, 163. 12 Hirschl (2014), 151–91. 9



10

434  Research handbook on the politics of constitutional law

2.

THE POLITICS OF RIGHTS ADOPTION

Many academic discussions of constitutional rights adoption focus on the normative desirability of constitutionally enshrining certain principles. These accounts often present constitution-makers as engaged in public-spirited deliberation over the common good. The rights that are enshrined within constitutions are reflect the moral commitments that are made during those deliberative processes. Perhaps the most famous discussion along these lines is Bruce Ackerman’s account of ‘constitutional moments’ of ‘higher law-making’ during which people set aside their ordinary short-sighted interest and deliberate in the public good.13 Ackerman’s account views landmark moments of constitutional change in the United States, including the civil rights revolution, as a product of such higher law-making. It is during these moments of public-spirited deliberation, Ackerman argues, that constitution-makers realise the importance of pre-committing to rights and consciously seek to tie their own hands. In a similar vein, other influential accounts have rights adoption as a desire on the part of constitution-makers to recognise past rights atrocities and to prevent the past from repeating itself.14 These accounts often emphasise that rights emerge after experiences with particular injustices. After those injustices become salient to a political community, it can create the political will for the community to adopt rights designed to help ensure that the actions of the past are no longer legally viable policy options. Yet the empirical record suggests that the adoption of constitutional rights is frequently not driven by public-spirited deliberation. Instead, Ackerman’s theory has been criticised for being based more on fiction than fact, both in the United States and around the world.15 While there may be a handful of cases of true public-spirited deliberation, such as the (failed) Icelandic Constitution drafted between 2010 and 2013,16 for the most part, constitution-making involves the same features as ordinary politics: logrolling and political compromise. Indeed, as Jon Elster has noted: ‘the task of constitution-making generally emerges in conditions that are likely to work against good constitution-making.’17 That is, constitutions are often written in the aftermath of conflict and in the face of deep political divides.18 One recent account even asserts that genuine constitutional transformations are always rooted in bloodshed and violence, not deliberation.19 Likewise, there is only limited evidence to support the idea that rights are adopted to address past atrocities.20 As Ran Hirschl has observed, although rights discourse is often prevalent in constituent assemblies, theories that link rights to past atrocities (Hirschl dubs these ‘idea-

13 Bruce Ackerman’s theory on ‘constitutional moments’ has been developed in several installments, the most recent of which is Ackerman (2014); see also Ackerman (2007); Ackerman (1991). 14 Dershowitz (2004); see also Ignatieff (2001), 4–5; Calebresi (2021), 6. 15 See e.g, Klarman (1992); Fisher (1992); Choudhry (2008). 16 Landemore (2017). 17 Elster (1995), 394; see also Elster, Offe & Preuss (1998) (likening constitutional design to ‘rebuilding the ship at sea’). 18 This likely remains true notwithstanding a notable trend towards more inclusive constitution-making. On the trend toward inclusive constitution-making, see Eisenstadt, LeVan & Maboudi (2017); Eisenstadt, LeVan & Maboudi (2017); Hart (2010); Widner (2008). 19 Bofill (2021); see also Peterson (2022). 20 One widely cited example is Eastern Europe in the 1990s. See e.g. Moravcsik (2000), 218.

The politics of constitutional rights  435 tional’ theories) are too vague to explain either the exact timing or content of rights adoption.21 That is, while they may explain why relevant actors support rights in general, they do not explain why rights are adopted at a particular time, or what the exact content of the bill of rights is. The explanatory power of these theories, therefore, is limited at best. Constitutional rights thus often do not emerge from periods of higher law-making and they may not reflect a desire to address past atrocities. Given that, what do we know about how, when, or why constitutional rights are adopted? There are multiple accounts of rights adoption that emphasise the domestic political calculations of constitution-makers, who should be viewed as self-interested and strategic actors.22 One influential account of rights adoption explains the constitutionalisation of rights as a product of elites trying to entrench their economic and political interests.23 Ruling elites that face uncertainty over their future electoral power use the constitution, and the courts tasked with enforcing it, to ensure their political agenda continues to be influential even after they lose power. Of course, the exact content of the political agenda that elites seek to entrench may vary from country to country. But it likely includes property rights to protect elites’ economic interests, along with the neo-liberal values that are generally cherished by economic and political elites.24 This account has been proposed as an explanation for constitutional rights and judicial review adoption in South Africa, Canada, Israel, New Zealand, as well as the United States.25 Another well-known account of rights adoption holds that rights are constitutionalised as ‘signals’ directed to risk-adverse investors.26 The basic idea here is that respect for property rights and other basic civil liberties will attract investors.27 Enumerating these rights in the constitution signals to potential investors that the ruling coalition is sufficiently aware ‘of the long-term benefits’ of protecting these rights ‘to give up some of its own power.’28 To illustrate, Tamir Moustafa has shown that the property clause in the 1971 Egyptian constitution was primarily written to regain the trust of foreign investors.29 In an attempt to undo the reputational harm the country suffered from two decades of nationalisation programmes,30 the government wrote a constitutional property clause and made numerous well-advertised statements of its intention to respect private property from then onwards.31 It also established an independent constitutional court equipped with the power of judicial review. Even though the Sadat (and subsequent Mubarak) regime did not always like the constitutional cases handed down against it, it nonetheless complied with the court’s decisions because of the economic benefits associated with secure property rights.

Hirschl (2013), 158–59. Ibid, 163. 23 See Hirschl (2005), 1–10. Other scholars have also developed theories that are related to Hirschl’s argument. See e.g. Ginsburg (2003); Finkel (2004); Erdos (2010). 24 Hirschl, Juristocracy (2005). 25 Ibid (South Africa, Canada, Israel, New Zealand); Parenti (2011) (United States); Beard (1913), (United States). 26 Farber (2002), 85–86. 27 Law (2008), 1277. 28 Farber (2002), 85–86. 29 Moustafa (2008), 135; see also Moustafa (2007). 30 Moustafa (2008), 133–34. 31 Ibid, 136–37. 21 22

436  Research handbook on the politics of constitutional law Other accounts of rights adoption focus on demands for rights from social movements, who seek to further their own agenda by constitutionalising certain values. American constitutional scholars, for example, have observed that the bill of rights reflects advocacy efforts by organised groups of citizens. Jack Balkin observes that ‘the Eighteenth Amendment, which ushered in Prohibition, and the Nineteenth, which gave women the right to vote, were a culmination of years of social movement activism.’32 In the same vein, Julie Suk documents how female drafters and women’s groups were influential in the German Constitutional assemblies of 1919 and 1949, which lead to the adoption of protections for gender and motherhood.33 Likewise, the participation of trade unions in the drafting of the 2011 Tunisian Constitution ensured the strong protection of labour rights.34 While these accounts of rights adoption are not necessarily inconsistent with the idea that rights are meant to fight past atrocities, these theories are squarely focused on the interests and political motivations of social movements. And, notably, social movements do not always pursue a progressive agenda: for instance, religious groups have mobilised to prevent constitutionalising of LGBTQ-rights and abortion rights.35 What is more, Rosalind Dixon and David Landau have argued that social movements’ desire for rights protections has on occasion been abused by would-be autocrats. Leaders seeking to pursue undemocratic reform may use constitutional rights as ‘bribes’: that is, they offer constitutional rights protections in exchange for support for the undemocratic constitutional reform package.36 Social movements, and their demand for rights, can therefore be instrumental in democratic erosion. Most importantly, such account challenge bullish ideational theories that link rights adoption to a genuine desire to prevent rights abuse. These accounts of rights adoption have mostly been developed through case studies. What they have in common is that they focus on the self-interested motivations of different actors involved in constitution-making. These qualitative accounts have traced how social movements have organised and pushed for the adoption of specific rights.37 Frequently, these accounts emphasise the unique political, social, and economic circumstances that lead to the adoption of rights in specific countries. But it is worth noting that quantitative studies exploring the correlates of rights provisions have often made a rather different observation: bills of rights are remarkably similar across countries. For instance, one quantitative study shows that the main predictor of whether a country has adopted a particular right is whether certain other countries previously did the same thing.38 Another study shows that, as a result of these diffusion processes, bills of rights are fairly standardised documents that vary along a limited number of underlying dimensions.39

32 Balkin (2005), 27. Organised groups of citizens can also shape judicial interpretations. As Balkin notes ‘Jacksonianism, abolitionism, the labor movement, the second wave of American feminism, the Civil Rights movement, the gay rights movement and the New Right, to name only a few examples, have profoundly shaped judicial interpretations of the American Constitution’; see ibid, 28; see also Cole (2016). 33 Suk (2018), 1‒8. 34 Chilton & Versteeg (2020), 282–84. 35 McCrudden (2015): Hirschl & Shachar (2018), 451. 36 Dixon (2018); Dixon & Landau (2021). 37 See e.g. Albert (2019), 64–65 (discussing the effort in Brazil to constitutionalise social rights). 38 Goderis & Versteeg (2014), 1. 39 Law & Versteeg (2011).

The politics of constitutional rights  437 Yet another study shows that substantive rights provisions are often detached from popular opinion within countries, suggesting that they may have been borrowed rather than tailored to local circumstances.40 Some empirical studies have even suggested that bills of rights derive from a single global script that represents world culture.41 These findings on the standardisation of rights provisions are striking and somewhat puzzling because, obviously, the domestic political circumstances of rights adoption vary radically from country to country. Indeed, the common conclusion that tends to be drawn from these large-N studies is that constitution-making is characterised by important interdependencies across countries. (Although the same observation has also been made by some qualitative scholars studying specific countries.42) This observation that bills of rights are fairly standardised raises the question of what causes these similarities. Some have pointed at mindless borrowing to explain the similarities in bill of rights. Mark Tushnet, for example, observes constitutions are often ‘assembled from provisions that a constitution’s drafters selected almost at random from whatever happened to be at hand when the time came to deal with a particular problem’ (a phenomenon he describes as ‘bricolage’).43 Likewise, Tom Ginsburg has conjectured that constitution-makers drafting bills of rights use boilerplates, just like firm lawyers who draft private contracts.44 In probing the origins of such boilerplates, many have suggested that international human rights treaties are an important source of inspiration for constitution-makers cobbling together a bill of rights.45 For instance, one study suggests that the adoption of the Universal Declaration of Human Rights directly lead to countries adopting a broader set of constitutional rights.46 Others have explained similarities in bills of rights by pointing at the direct influence that international, foreign, and transnational actors have on the adoption of constitutional rights. When constitutions are being written, a community of transnational actors typically descends upon a country to assist with constitution-writing. These actors range from international financial institutions such as the IMF and World Bank, to international governmental organisations such as International IDEA, to governmental entities such as the Max Planck Institute, and even to non-governmental organisations pushing specific values.47 To illustrate, one study on the constitution-making process in South Sudan documents how a cadre of foreign actors, ranging from the National Democratic Institute to the American law firm Latham & Watkins, pushed for the adoption of a catalogue of rights resembling international human rights law.48 Similar involvement of transnational actors has also been reported in many other settings.49 Versteeg (2014). Meyer et al. (1997), 144–45; Ginsburg & Simpser (2013), 5–6. 42 See e.g. Billias (2009), 105; Parkinson (2007), 4. 43 Tushnet (1999), 1285–1301 (1999); see also Schauer (2005), 910. 44 Ginsburg (2013), 225 (describing boiler-plate constitutional provisions). 45 Elkins, Ginsburg & Simmons (2013) (finding that bills of rights reflect international treaties); cf. Versteeg (2015). 46 Elkins & Ginsburg (2022). 47 Hirschl (2005), 46–47. 48 Cope (2013), 304. 49 Feldman (2005), 858; O’Brien (2010), 336–38 (‘The international community ruled Dayton by the sheer number of its participants.’); Bannon (2007), 1859 (reporting the involvement of the World Bank and the International Monetary Fund in several of Kenya’s constitutional reform initiatives). International actors often give financial incentives for rights adoption, see Hadfield & Weingast (2014), 26 (stating that ‘billions of dollars in international aid’ have been devoted to creating the rule of law). 40 41

438  Research handbook on the politics of constitutional law Regardless of the exact line-up of actors, one might conjecture that when the same transnational actors exert influence in different countries, bills of rights will become standardised. Yet other studies have even explained similarities in bills of rights by pointing at outright coercion by international actors as a driver behind the striking similarities in rights-content. For example, the British colonial office drafted a boilerplate bill of rights that it inserted in the Independence Constitutions of all the 30-plus colonies that became independent after 1960.50 Others have documented how the Japanese Constitution was written by US General McArthur and his team,51 or how the Afghan constitution was written ‘in the shadow of the gun.’52 More generally, Zachary Elkins, James Melton, and Tom Ginsburg identify no less than 42 constitutions written during occupation, which presumably reflect the influence of the occupying power.53 There is also some evidence that suggests that such interdependences might be larger for constitutional rights than for the structural parts of the constitution. To illustrate, a study of the drafting of the 2011 South Sudanese interim constitution shows that while the bill of rights ‘replicates an international template reflecting an emerging global consensus on human rights’ the ‘document’s structural provisions …. are in many ways devised to advance the political priorities of the drafters’ own political party and those of central government officials.’54 Another study finds that, while diffusion explains the adoption of constitutional rights around the world, it does not explain the adoption of judicial review, which appears to be a product of domestic political calculations.55 Ultimately, we cannot say with certainty which theory of the adoption of constitutional rights holds the most explanatory power. It is likely that this will depend on the country in question, and on the right at stake. Indeed, the literature has only made limited progress in developing scope conditions for different theories; that is, theorising the circumstances under which theories are most likely to hold explanatory power. But we can say with certainty that all the available evidence suggest that strategic political considerations are a key factor in rights adoption, and that it would be naïve to simply view rights as a genuine commitment to the normative ideals they represent.

3.

THE POLITICS OF RIGHTS ENFORCEMENT

Regardless of why rights are adopted, one might be tempted to assume that the normative desirability of rights will automatically ensure that, once they are adopted, they are in fact respected by governments. Consistent with this temptation, as Jack Goldsmith and Daryl Levinson observe, constitutional scholars rarely pause to ask whether and how the constitution’s rights make a difference but seem to assume that ‘simply writing down a rule of

52 53 54 55 50 51

See Parkinson (2007), 4; Chilton & Versteeg (2020), 97–98. See Okudaira (1993), 2–3; see also Chilton & Versteeg (2022). See Feldman (2005), 858; Katz (2006), 185. Elkins et al. (2008), 1175–76. See Cope (2013), 697. Ginsburg & Versteeg (2014).

The politics of constitutional rights  439 constitutional law … will somehow automatically constrain the behavior of the government officials subject to that rule.’56 In practice, however, there often is a wide gulf between a country’s de jure enumerated constitutional rights and the rights that its subjects enjoy de facto. For instance, historians have observed that the Magna Carta, arguably the world’s first and most famous bill of rights (albeit mostly for an elite few), was not meaningfully realised until some 100 years after its adoption in 1215.57 And today, a cursory inspection of constitutional practices around the world reveals that enumerated rights are often not delivered. In some countries, many constitutional rights are a dead letter entirely. For instance, although the People’s Republic of China’s constitution nominally protects free speech, the government is notorious for harshly punishing dissenters and government critics.58 But even in democratic settings, enforcement of constitutional rights can be uneven. In the United States, many of the free speech rights that we now understand as fundamental were not recognised until the 1920s.59 Before then, the constitutional protection of free speech had few practical applications. Simply granting constitutional rights, then, does not ensure that they will be upheld. Quantitative studies have largely produced results consistent with these examples. For many rights, enumerating them in the constitution is not associated with better outcomes. Our own prior research, for example, has found that the prohibition of torture is not associated with reductions in torture;60 that the right to free speech is not associated with more respect for speech;61 that the freedom of movement is not associated with increased freedom of movement;62 that gender equality provisions are not associated with improved gender equality;63 and the rights to education and healthcare are not associated with increased health and education spending by the government.64 These patterns may be concerning, but they should not be surprising. Commentators have long observed that a constitution comprises merely words, while the various departments of government yield the power of the sword or the purse. This argument was famously made by James Madison, who worried that the rights in the US constitution might amount to mere ‘parchment barriers.’65 Madison feared that the words on paper would not prevent powerful governments from ignoring rights, especially those of political minorities, when those policies also had the support of popular majorities.66 Madison’s contemporary, British philosopher John Austin, developed the same idea, arguing that constitutional law is ‘mere idle words

Goldsmith & Levinson (2009), 1830; see also Boyd (2012), 14 (‘There is an implicit faith that constitutions, in tandem with legal systems, will ensure the protection and fulfillment of rights.’); Schauer (2012), 229. 57 Hayek (2011), 236. 58 Wong & Ansfield (2013). 59 White (1996), 310; see also Weinrib (2016). 60 Chilton & Versteeg (2015). 61 Chilton & Versteeg (2016). 62 Ibid. 63 Chilton & Versteeg (2022). 64 Chilton & Versteeg (2017). 65 Letter from James Madison to Thomas Jefferson (17 October 1788), in Rutland (1977), 295. 297. 66 Ibid. 56

440  Research handbook on the politics of constitutional law scribbled on paper or parchment’ without ‘men to enforce them.’67 This sceptical view remains popular today.68 To explain these patterns, sceptical accounts typically emphasise one thing in particular: the inability to coerce political actors into compliance.69 In other words, the constitution lacks an external entity that can force the government to uphold its constitutional obligations. To illustrate, compare constitutional law to ordinary law. For ordinary laws that govern private actors, the state’s civil and criminal justice system constitutes a third party between two private parties; it enforces legal obligations between the two by threatening and carrying out penalties.70 For instance, if a party to a contract breaches it, the state can ensure that the non-breaching party still receives the benefit of the bargain –by having armed sheriff’s deputies seize the breaching party’s property, if necessary. But for constitutional law, there is no such third party to the relationship between the government and legal subjects. The state alone can enforce its own constitution against itself.71 How and why, then, would a powerful government consider itself bound by parchment barriers? Many scholars have argued that the answer is independent courts: the president and Congress refrain from taking unconstitutional actions because courts can strike down laws and regulations that contradict the constitution.72 But although courts do strike down laws and regulations that violate the constitution, and this possibility may deter the legislative and executive branches from taking unconstitutional actions in the first place, this explanation cannot fully explain why courts are enough to translate constitutional commitments into changes in behaviour. This is because courts are also a component of the government, not external to it. And, like the constitution itself, judicial decisions against another branch of government lack an external enforcement mechanism; police and armies sworn to uphold the constitution cannot be reliably counted on to honor their duty to the rule of law over their status as a subordinate of the executive.73 Given these limitations of courts, there would likely have to be another explanation for any association between the adoption of constitutional rights and improved respect for rights. Perhaps the most plausible explanation is that, although governments are rarely physically coerced by a third party into constitutional compliance, it is possible for some constitutional elements to become self-enforcing.74 Generally speaking, for a pact to become self-enforcing, it must ‘provide the parties to the pact with the incentives to abide by the pacts provisions.’75 Critical to this is to create focal points that clarify the rules that parties to the pact should follow, and also make it possible for the parties to organise to punish violations of those rules. For constitutions, this logic means that playing by the same constitutional rules could serve the long-term interests of political actors, even without a third-party enforcer. A constitution

Austin (1832), 364. Schauer (2012). 69 For a prominent articulation of the idea that constitutions lack external enforcement, see Goldsmith & Levinson (2009), 1795; see also Hadfield & Weingast (2014), 122: Hardin (2013), 53. 70 See Goldsmith & Levinson (2009), 1830. 71 Ibid, 1796 (describing constitutional law as ‘the law of states’ and ‘law for states’). 72 Ibid, 1830. 73 Grimm (2004), 26 (‘It is the specific weakness of constitutional courts that the power is in the hands of those who are affected by their decisions.’). 74 Weingast & Mittal (2013). 75 Ibid, 285. 67 68

The politics of constitutional rights  441 can become self-enforcing through several different mechanisms, each of which provides a different rationale for a self-interested government’s abiding by its rules.76 One set of explanations notes that abiding by the constitution can stabilise the government, extending the existing ruling party or leader’s time in power. For instance, medieval rulers with near absolute powers accepted some constraints on their power; doing so marginally reduced their day-to-day power, but it increased the government’s stability and thus their expected tenure. Professor Stephen Holmes calls this the ‘paradox of limited power’: accepting constraints sometimes increases power.77 Other explanations focus on economic benefits; as mentioned above, leaders may benefit from respecting property rights protections, so that they can attract foreign investors.78 For constitutional rights, it is often thought that the main reason governments would comply with their constitutional commitments is that non-compliance will create large political costs. Political costs are created when organised groups of citizens act together to punish a government for rights violations, through protests, electoral mobilisation, litigation, or civil disobedience. Through such rights mobilisation, rights violations become costly. When citizens can show they are likely to successfully impose these political costs, governments may hesitate to violate rights, and the constitution can become self-enforcing.79 Many qualitative studies on rights enforcement reflect this basic intuition. To illustrate, Charles Epp’s classic study found that the key to making rights real, or a ‘rights revolution’ is ‘a support structure for legal mobilization’ consisting of ‘rights-advocacy organizations, rights-advocacy lawyers, and sources of financing, particularly government-supported financing.’80 It is the work of these groups that is essential for a rights revolution. Likewise, Michael McCann’s classic study of workers’ rights in the United States shows how trade unions used the law to progressively realise pay equality.81 Relatedly, Beth Simmons has argued that mobilisation by rights advocacy groups is key to realising the rights enshrined in human rights treaties.82 Many other studies have pointed at the importance of mobilisation in rights enforcement.83 In our book, How Constitutional Rights Matter, we start from the same assumption: mobilisation is key to making rights work. But we argue that rights mobilisation itself cannot be taken for granted.84 Specifically, we argue that groups citizens of trying to punish their government for rights violations must overcome two obstacles. First, they need to agree with each other that certain government actions indeed constitute a constitutional violation. The constitution can help, but it is often too indeterminate to make such judgement calls precisely. This is a coordination problem.85 Second, assuming citizens can agree on what actions constitute

Goldsmith & Levinson (2009), 1826. Ibid. 78 Moustafa (2007); see also North & Weingast (1989). 79 Weingast (1977), 261 (‘Citizens can police the state only if they react in concert to violations of fundamental limits by withdrawing their support from the sovereign or political officials.’). 80 Epp (1998), 3. 81 McCann (1994), 4. 82 Simmons (2009). 83 See e.g. Brinks & Gauri (2014), 382, 386; see also Foweraker & Landsman (2000); Campbell (2003); Mettler (2005). 84 Chilton & Versteeg (2020), 27–28. 85 Ibid, 30–31. 76 77

442  Research handbook on the politics of constitutional law a constitutional violation, they need to work together to punish the government. But imposing political costs on a government can be hard and potentially dangerous work, and it not easy for unconnected citizens to organise effectively. This is a collective action problem.86 A key argument in the book is that dedicated organisations can help overcome both these problems. For the coordination problem, when there is uncertainty over whether a certain government action violates the constitution, organisations can persuade their members and others that the government did indeed cross the line. They can also seek redress in court. For the collective action problem, organisations can assure would-be protesters and other public dissenters that they will not be alone. Successful organisations have both a member base on which they can call and expertise in political and legal advocacy, allowing them to develop an effective response. Dedicated organisations can thus make constitutional violations less costly for citizens to challenge, and thus more difficult for the government to enact. But organisations do not magically appear; instead, their presence is itself a product of political calculations. Notably, their establishment requires dedicated political entrepreneurs as well as members willing to provide resources to the organisation. Given this reality, we argue that some rights are more likely than others to have strong and dedicated organisations that care about their protection. In this respect, it is worth noting that some rights actually require an organisation to be exercised. This is the case for a set of rights that we call organisational rights. Examples include the right to unionise, the right to form political parties, and the freedom of religion. To exercise the right to unionise, there needs to be a trade union that engages in collective bargaining. Likewise, exercising political party rights requires the establishment of political parties. Freedom of religion is similar; it, too, is typically (though not exclusively) practiced within an organisation. None of these organisations – religious groups, unions, and political parties – are established for the purpose of protecting constitutional rights. Yet, when their rights are encroached upon, they have both the incentives and the means to resist. And when they do resist, they can be particularly powerful: they are all membership-based organisations whose loyal members will heed the call for collective action. They also tend to have strong organisational capacity and substantial expertise in political advocacy. Indeed, their sheer presence, combined with the credible threat of resistance, might be enough to deter rights violations. By comparison, when the exercise of a right involves a primarily individual activity, dedicated organisations are less likely to exist. We thus observe that individual rights – like the right to freedom of speech, freedom of movement, or prohibitions on torture – are less likely to have strong organisations dedicated to their protection. And when organisations focused on individual rights do exist (we acknowledge that there are some powerful examples in different countries), they are usually weaker than religious groups, trade unions, and political parties. The result is that individual rights are less likely to be associated with improved rights performance than organisational rights. Our book presents different kinds of evidence to support these findings. For instance, we present results from a range of cross-national statistical analyses that shows that organisational rights are systematically associated with higher levels of respect for those rights in practice, even in undemocratic contexts. We also present findings from a series of mini-case studies that seek to unpack how mobilisation for organisational rights happens, along with survey

Ibid, 32–33.

86

The politics of constitutional rights  443 experiments in different countries that explore whether knowledge on the constitutionality of proposed policies influenced support for those policies. That said, our book does leave important questions unanswered. Most notably, even though we argue that on average organisations that seek to protect individual rights are weaker than organisations needed to practice organisational rights, we do not deny that there can be strong individual rights organisations. The American Civil Liberties Union or the National Rifle Association are important examples of strong individual rights organisations.87 Studying the political conditions under which such organisations emerge is a particularly important question for future research. That said, even though some important empirical questions on rights enforcement remain unanswered, it is clear that enumerating rights into a constitution does not automatically translate into better rights practices. How and why constitutional rights matter very much depends on the political context in which they operate, and whether people are willing to dedicate time and resources to their enforcement.

4.

THE POLITICS OF RIGHTS CREEP

Despite the empirical evidence that many constitutional rights are not associated with improved rights protection, the general tenor of the academic literature has still been to suggest that having a constitution with more rights is better than having a constitution with fewer rights. While there used to be some debate about whether social rights – such as the right to healthcare, education, housing, or social security – belong in constitutions, there is now a near-universal consensus that adopting constitutional social rights is desirable. Indeed, an overwhelming majority of constitutions now enshrine these rights.88 Likewise, there exists a growing consensus that environmental rights deserve constitutional protection,89 along with the rights of Indigenous people and minority groups,90 the rights of consumers,91 and even animal rights.92 Real-world constitutions reflect this ideal: they enumerate an ever-increasing list of rights. Notably, with the sole exception of the right to bear arms, there is not a single right that has decreased in prevalence since World War II.93 It is worth pausing to consider the implication of this phenomenon, which has been dubbed ‘rights inflation’ or ‘rights creep.’94 It seems reasonable to assume that when constitutions enumerate many rights, these rights are inevitably going to contradict each other at least some of the time. For instance, women’s rights may clash with Indigenous rights; social rights and environmental may clash with property rights; the freedom of religion may clash with repro-

Ibid, 6, 36–39. Landau (2012), 190. 89 Boyd (2012), 13–14. 90 Weigård (2008). 91 Deutch (1994). 92 Germany amended its constitution in 2002 to include a duty for the government to protect animals. Gesetz zur Änderung des Grundgesetzes (Staatsziel Tierschutz) [Law Amending Basic Law (Animal Protection State Objective)], 26 July 2002, BGBl I at 2862 (Ger.); see also Stilt (2018). 93 Law & Versteeg (2012), 776 (‘The percentage of constitutions that contain a right to bear arms has declined over the last sixty years from an already scant 8% to a mere 2%.’). 94 Law & (2011), 1194 (describing ‘rights creep’); Möller (2014). 87 88

444  Research handbook on the politics of constitutional law ductive freedoms, and so on. Thus, while each of these rights are important on their own, they may create important tensions when placed alongside many other rights. One can make the argument that such conflicts between different constitutional rights are in fact desirable. For example, Jamal Greene has argued that rights should not be absolute, and that when they are not, it becomes possible, and even desirable, to adopt a larger catalogue of rights.95 Greene’s account is a critique of US constitutional law, in which only few rights are constitutionally enumerated. Greene observes that those rights that are enumerated are treated as ‘trumps,’ and therefore create winners (those with a rights claim) and losers (those without a rights claim), with the result that losers will frequently feel that their interests were treated as unimportant, because these interests did not amount to a rights claim.96 Greene favours a different model of rights adjudication: proportionality review.97 Proportionality review is widely used by courts in Western Europe and Latin America.98 It usually comprises a two-part test. First, the court asks whether there has been a prima facia rights infringement, whereby the right is broadly construed. Second, the court asks multiple sequential questions: (1) whether the rights restrictions further a legitimate goal, (2) whether they are the least restrictive alternative to further that goal, and (3) whether the benefits that flow from the restriction are proportional to the harms that are done to the right.99 If the answer to these questions is yes, then the constitution has not been violated. The key idea behind proportionality review is that, since rights are not treated as absolute, it falls upon courts to balance competing rights values against each other. Greene claims that there are important benefits to proportionality review. Perhaps most importantly, since courts can balance different rights claims against each other, it allows for more values to be constitutionally protected. Indeed, Greene suggest that if the United States were to adopt proportionality review, it could constitutionally protect additional values, including social rights,100 protection against indirect discrimination (or disparate impact),101 protection against rights violations by private actors,102 and even protections for fetal life.103 Each of these could enjoy some constitutional protection, but because courts would engage in proportionality review, it would not automatically follow that a rights claim would trump all other interests. This, in turn, creates some additional benefits. Since both parties in constitutional rights disputes will have rights claims, the losing side will feel that its interests were treated as important, and therefore will be more willing to accept the outcome. More generally, Greene believes that this kind of rights-adjudication encourages compromise, something that is much needed in America’s deeply polarised political landscape. What is more, because competing rights claims are always weighted against each other, it forces the government to engage in reason-giving when it restricts some rights in the name of others.104 In Greene’s

Greene (2021). Greene (2018). 97 Alexy (2002); Barak (2012); Jackson & Tushnet (eds) (2017); Cohen-Eliya & Porat (2013); Jackson (2015). 98 See Bernal-Pulido (2013); Stone Sweet & Mathews (2008). 99 Dixon & Landau (2021). 100 Greene (2021), 76–79. 101 Ibid, 107–09. 102 Ibid, 3. 103 Ibid, 137. 104 See e.g. Jackson (2015), 3142 (discussing the importance of reason-giving in constitutional law). 95 96

The politics of constitutional rights  445 account, then, societies are better off with many constitutional rights than few rights. Many others have pointed at similar benefits of proportionality review, and its ability to accommodate a larger catalogue of constitutionally protected rights. But one can also imagine that there are downsides of the growing number of constitutional rights protections.105 Notably, roughly three decades ago, Mary Ann Glendon questioned whether casting important values in the language of rights in fact contributed to better rights protection.106 Like Greene, she believed that rights should not be casted as absolute. But unlike Greene, she did not believe that a growing catalogue of rights was desirable. Specifically, Glendon worried that casting many values and interest of rights, ‘may well trivialise’ the ‘essential core’ of rights ‘without materially advancing the proliferating causes that have been reconceptualised as involving rights.’107 In a nutshell, one of her concerns was that that protecting many rights would come at the expense of core rights. One might ask what the specific mechanism is that would lead to the protection of a greater number of constitutional rights producing worse outcomes. One possibility is that, by setting the bar so high, government officials supposed to uphold and protect rights simply become less motivated. A recent experimental study finds some evidence to support this insight, though further research is necessary to confirm the finding. Specifically, Adi Leibovitch and Alex Stremitzer find that when people are asked to perform many tasks, their performance on each of these tasks decreases, presumably because they find themselves less motivated.108 They suggest that the same ‘more is less’ dynamic might also apply to constitutional rights protection. Eric Posner offers a somewhat different argument for why fewer rights might lead to better rights protection. While discussing the rise of international human rights law, Posner argues that the growing number of rights allows savvy political leaders to free themselves of rights constraints.109 According to Posner, the ‘hypertrophy of human rights’ produces important trade-offs.110 He notes ‘if there were only a few rights it would seem simple enough to determine whether states comply with them.’ Yet, when there are many rights, government officials become basically free to pick and choose the rights that they focus on.111 Posner thus suggest that the presence of many rights gives governments a perfect excuse to ignore them. That said, ultimately, whether the sheer number of constitutional rights affects actual rights protection is an unanswered empirical question. But an initial empirical exploration of the data suggests that more rights is not necessarily better.

See e.g. Clément (2017); Mchangama & Verdirame (2013); Baxi (2001). Glendon (1991), xi. 107 Ibid, 16. 108 Leibovitch & Stremitzer (2022). 109 Posner (2014), 92–94; see also Mchangama & Verdirame (2013). 110 Posner (2014), 94. 111 Ibid. 105 106

446  Research handbook on the politics of constitutional law

Source: The Human Rights Score used in Panels B and C was created by the political scientist Chris Fariss. See Fariss (2014). The Human Rights Score is scaled so that 0 represents the average level of repression for all country-years in the dataset, and a score of +1 means that a country has a one standard deviation higher level of rights protection.

Figure 24.1

Three key trends in human rights

 

To illustrate, Figure 24.1 presents the relationship between the number of de jure rights and de facto rights protection. Panel A presents the de jure data: it depicts the median number of rights in countries’ national constitutions from 1946 to 2016 based on a list of 87 key constitutional

The politics of constitutional rights  447 rights.112 It shows that, over this period, the median number of rights enshrined in national constitutions increased from 20 to 41. Panel B shows the de facto data: it depicts the average scores of a leading measure of government repression – a latent index based on 13 human rights datasets – for all countries from 1949 to 2013. It reveals that human rights practices have gradually improved over time. Panel C contrasts the two measures. It depicts a scatter plot of the repression data against the number of constitutional rights for each country in the year 2010. It reveals that the correlation is negative: countries with fewer constitutional rights have higher levels of rights protection than those with more rights. Of course, the negative correlation between constitutional rights and average levels of rights protection is not evidence that additional constitutional rights cause a decrease in a country’s respect for rights. It is possible, if not plausible, that countries with more rights in their constitution are systematically different from countries with fewer rights in their constitution. Countries with more rights in their constitution might also be countries with weaker economic and political institutions. If true, it is weak institutions that cause the weaker rights record, not the large number of enumerated rights. Thus, the negative correlation alone does not answer the question of whether rights inflation hurts rights protection. More research is thus needed to explore this question. But all the available empirical data suggest that, when it comes to constitutional rights, it might be the case that less is more.

5. CONCLUSION Despite a great deal of academic scholarship making the case that constitutionally protecting certain rights is both normatively desirable and theoretically likely to improve the protection of rights, the existing qualitative and quantitative empirical evidence suggests a more complicated story. Some rights may be adopted by some countries as a genuine attempt to prevent repression, while others are adopted to advance strategic goals, such as entrenching economic interests, attracting investors, appeasing the international community, and even paving the way for greater authoritarianism. Once adopted, some rights, like the right to form political parties, may be associated with improved rights practices; but other rights, like the right to education, might not be associated with any changes in school funding or educational attainment. And even if some rights may individually be associated with better rights practices, it is still possible that the inclusion of more rights in constitutions still may weaken respect for rights overall. In short, the politics of constitutional rights is a sufficiently complicated subject that defies easy simplification. But more research is need to more fully understand the adoption and effects of constitutional rights. It is only through the continued study rights as political institutions, either through qualitative or quantitative methods, that we can gain an accurate understanding of how and why rights are adopted and enforced.

112

For more information on this data, see Chilton & Versteeg (2020), 84.

448  Research handbook on the politics of constitutional law

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The politics of constitutional rights  449 Dershowitz, Alan M. Rights from Wrongs: A Secular Theory of the Origins of Rights (Basic Books, 2004). Deutch, Sinai. (1994). ‘Are Consumer Rights Human Rights?,’ Osgoode Hall Law Journal 32: 537–78. Dixon, Rosalind & David Landau. Abusive Constitutional Borrowing (Oxford University Press, 2021). Dixon, Rosalind. (2018). ‘Constitutional Rights as Bribes,’ Connecticut Law Review 50: 767–818. Eisenstadt, Todd, A., Carl LeVan & Tofigh Maboudi. (2015). ‘When Talk Trumps Text: The Democratizing Effects of Deliberation During Constitution-Making 1974–2011,’ American Political Science Review 109: 592–612. Eisenstadt, Todd, A., Carl LeVan & Tofigh Maboudi. Constituents Before Assembly (Cambridge University Press, 2017). Elkins, Zach & Tom Ginsburg. (2022). ‘Imagining a World Without the Universal Declaration of Human Rights,’ World Politics 74: 327‒66. Elkins, Zachary et al. (2008). ‘Baghdad, Tokyo, Kabul … Constitution Making in Occupied States,’ William & Mary Law Review 49: 1139–78. Elkins, Zachary, Tom Ginsburg & Beth Simmons. (2013). ‘Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice,’ Harvard International Law Journal 54: 61–95. Elster, Jon, Claus Offe & Ulrich K. Preuss. Institutional Design in Post-Communist Societies: Rebuilding the Ship at Sea (Cambridge University Press, 1998). Elster, Jon. (1995). ‘Forces and Mechanisms in the Constitution-Making Process,’ Duke Law Journal 45: 364–96. Ely, John Hart. Democracy and Distrust (Harvard University Press, 1980). Epp, Charles. The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (University of Chicago Press, 1998). Erdos, David. Delegating Rights Protection: The Rise of Bills of Rights in the Westminster World (Oxford University Press, 2010). Farber, Daniel A. (2002). ‘Rights as Signals,’ Journal of Legal Studies 31: 83–98. Fariss, Christopher J. (2014). ‘Respect for Human Rights Has Improved Over Time: Modeling the Changing Standard of Accountability,’ American Political Science Review 108: 297–318. Feldman, Noah. (2005). ‘Imposed Constitutionalism,’ Connecticut Law Review 37: 857–89. Finkel, Jodi. Judicial Reform as Political Insurance: Argentina, Peru and Mexico in the 1990s (University of Notre Dame Press, 2004). Fisher III, William W. (1992). ‘The Defects of Dualism,’ University of Chicago Law Review 59: 955–80. Foweraker, Joe & Todd Landsman. Citizenship Rights and Social Movements: A Comparative and Statistical Analysis (Oxford University Press, 2000). Gardbaum, Stephen. ‘The Place of Constitutional Law in the Legal System’ in Michel Rosenfeld & András Sajó (eds) The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012). Ginsburg, Tom & Alberto Simpser. ‘Introduction’ in Tom Ginsburg & Alberto Simpser (eds) Constitutions in Authoritarian Regimes (Cambridge University Press, 2014). Ginsburg, Tom & Mila Versteeg. (2014). ‘Why Do Countries Adopt Constitutional Review?,’ Journal of Law, Economics & Organization 30: 587–622. Ginsburg, Tom. ‘Constitutions as Charters, Constitutions as Covenants’ in Denis Galligan & Mila Versteeg (eds) The Social and Political Foundations of Constitutions (Cambridge University Press, 2013). Ginsburg, Tom. Judicial Review in New Democracies: Constitutional Courts in East Asia (Cambridge University Press, 2003). Glendon, Mary Ann. Rights Talk: The Impoverishment of Political Discourse (Free Press, 1991). Goderis, Benedikt & Mila Versteeg. (2014). ‘The Diffusion of Constitutional Rights,’ International Review of Law & Economics 39: 1–19. Goldsmith, Jack & Daryl J. Levinson. (2009). ‘Law for States: International Law, Constitutional Law, Public Law,’ Harvard Law Review 122: 1791–868. Greene, Jamal. (2018). ‘Foreword, Rights as Trumps?,’ Harvard Law Review 132: 28–132. Greene, Jamal. How Rights Went Wrong: Why Our Obsession with Rights is Tearing America Apart (Houghton Mifflin, 2021).

450  Research handbook on the politics of constitutional law Grimm, Dieter. ‘Judges in Contemporary Democracy: An International Conversation’ in Robert Badinter & Stephen Breyer (eds) Judges in Contemporary Democracy: An International Conversation (New York University Press, 2004). Hadfield, Gillian & Barry Weingast. (2014). ‘Microfoundations of the Rule of Law,’ Annual Reviews of Political Science 17: 21–42. Hadfield, Gillian K. & Barry R. Weingast. ‘Constitutions as Coordinating Devices,’ in Sebastian Galiani & Itai Sened (eds) Institutions, Property Rights, and Economic Growth: The Legacy of Douglass North (Cambridge University Press, 2014) 121, 122. Hardin, Russell. ‘Why a Constitution?’ in Mila Versteeg & Denis Galligan (eds) The Social and Political Foundations of Constitutions (Cambridge University Press, 2013) 51, 53. Harel, Alon. Why Law Matters (Oxford University Press, 2014). Hart, Vivien. ‘Constitution-Making and the Right to Take Part in a Public Affair’ in Laurel E. Miller (ed) Framing the State in Times of Transition (United States Institute of Peace Press, 2010). Hayek, Friedrich A. in Ronald Hamowy (ed) The Constitution of Liberty – The Definitive Edition 236 (Routledge, 2011). Hirschl, Ran & Ayelet Shachar. (2018). ‘Competing Orders: The Challenge of Religion to Modern Constitutionalism,’ University of Chicago Law Review 85: 425–56. Hirschl, Ran. ‘The Strategic Foundations of Constitutions’ in Denis Galligan & Mila Versteeg (eds) The Social and Political Foundations of Constitutions (Cambridge University Press, 2013). Hirschl, Ran. Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press, 2014). Hirschl, Ran. Towards Juristocracy (Harvard University Press, 2005). Horowitz, Donald. (2007). ‘The Many Uses of Federalism,’ Drake Law Review 55: 953–66. Ignatieff, Michael. Human Rights as Politics and Idolatry (Princeton University Press, 2001). Jackson, Vicki C. (2015). ‘Constitutional Law in an Age of Proportionality,’ Yale Law Journal 124: 3142–96. Jackson, Vicki C. & Mark Tushnet (eds). Proportionality: New Frontiers, New Challenges (Cambridge University Press, 2017). Jung, Courtney, Evan Rosevear, & Ran Hirschl. (2015). ‘Economic and Social Rights in National Constitutions,’ American Journal of Comparative Law 62: 1043–93. Katz, Stanley N. (2006). ‘Democratic Constitutionalism After Military Occupation; Reflections on the United States’ Experience in Japan, Germany, Afghanistan and Iraq,’ Common Knowledge 12: 181–96. Klarman, Michael. (1992). ‘Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman’s Theory of Constitutional Moments,’ Stanford Law Review 44: 759–97. Landau, David. (2012). ‘The Reality of Social Rights Enforcement,’ Harvard International Law Journal 53: 190–247. Landemore, Hélène. (2017). ‘Inclusive Constitution Making and Religious Rights: Lessons from the Icelandic Experiment,’ Journal of Politics 79: 762–79. Law, David S. & Mila Versteeg. (2011). ‘The Evolution and Ideology of Global Constitutionalism,’ California Law Review 99: 1163–256. Law, David S. (2008). ‘Globalization and the Future of Constitutional Rights,’ Northwestern University Law Review 102: 1207–350. Law, David S. & Mila Versteeg. (2013). ‘Sham Constitutions,’ California Law Review 101: 863–952. Law, David S. & Mila Versteeg. (2012). ‘The Declining Influence of the United States Constitution,’ New York University Law Review 87: 762–858. Leibovitch, Adi & Alex Stremitzer. (2022). ‘Aspirational Rules,’ Journal of Legal Studies 51: 427‒53. McCann, Michael. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (University of Chicago Press, 1994) 4. McCrudden, Christopher. (2015). ‘Transnational Culture Wars,’ International Journal of Constitutional Law 13: 434–62. Mchangama, Jacob & Guglielmo Verdirame. ‘The Danger of Human Rights Proliferation: When Defending Liberty, Less Is More,’ Foreign Affairs (24 July 2013). Mettler, Suzanne. Soldiers to Citizens: the G.I. Bill and the Making of the Greatest Generation (Oxford University Press, 2005).

The politics of constitutional rights  451 Meyer, John W. et al. (1997). ‘World Society and the Nation-State,’ American Journal of Sociology 103: 144–81. Möller, Kai. ‘Proportionality and Rights Inflation,’ in Grant Huscroft, Bradley W. Miller, and Grégoire Webber (eds) Proportionality and the Rule of Law: Rights, Justification, and Reasoning (Cambridge University Press, 2014). Moravcsik, Andrew. (2000). ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe,’ International Organization 54: 217–52. Moustafa, Tamir. ‘Law and Resistance in Authoritarian States: The Judicialization of Politics in Egypt,’ in Tom Ginsburg & Tamir Moustafa (eds) Rule By Law: The Politics of Courts in Authoritarian Regimes (Cambridge University Press, 2008). Moustafa, Tamir. The Struggle For Constitutional Power: Law, Politics and Economic Development in Egypt (Cambridge University Press, 2007). North, Douglass C. & Barry Weingast. (1989). ‘Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth Century England,’ Journal of Economic History 4: 803–32. O’Brien, James C. ‘The Dayton Constitution of Bosnia and Herzegovina,’ in Laurel E. Miller (ed) Framing the State in Times of Transition (United States Institute of Peace Press, 2010). Okudaira, Yasuhiro in Percy R. Luney, Jr. & Kazuyuki Takahashi (eds) ‘Forty Years of the Constitution and Its Various Influences: Japanese, American, and European, in Japanese Constitutional Law,’ (University of Tokyo Press, 1993). Parenti, Michael. Democracy for the Few (Thompson-Wadsworth, 2011). Parkinson, Charles. Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories (Oxford University Press, 2007). Peterson, Farah. (2022). ‘Our Constitutionalism of Force,’ Colum. L. Rev 122: 1539‒1625. Posner, Eric. The Twilight of Human Rights Law (Oxford University Press, 2014). Robert A. Rutland & Charles F. Hobson (eds) The Papers of James Madison, vol. 11 (University Press of Virginia, 1977). Sajó, András. Limiting Government: An Introduction to Constitutionalism (Central European Press, 1999). Schauer, Frederick. (2005). ‘On the Migration of Constitutional Ideas,’ Connecticut Law Review 37: 907–19. Schauer, Fredrick. ‘Comparative Constitutional Compliance: Notes Towards a Research Agenda,’ in Maurice Adams & Jacco Bomhoff (eds) Practice and Theory in Comparative Law 212, 229 (Cambridge University Press, 2012). Schauer, Fredrick. (2012). ‘The Political Risks (If Any) of Breaking the Law,’ Journal of Legal Analysis 4: 83–101. Schauer, Fredrick. The Force of Law (Harvard University Press, 2015). Simmons, Beth A. Mobilizing For Human Rights: International Law in Domestic Politics (Cambridge University Press, 2009). Stilt, Kristen. (2018). ‘Constitutional Innovation and Animal Protection in Egypt,’ Law & Social Inquiry 43: 1364–90. Stone Sweet, Alec & Jud Mathews. (2008). ‘Proportionality Balancing and Global Constitutionalism,’ Columbia Journal of Transnational Law 47: 72–164. Suk, Julie C. ‘Founding Mothers: The Comparative Constitutional Entrenchment of Equality and Difference,’ in Austin Sarat (ed) Law and the Imagining of Difference (Emerald Publishing, 2018). Sunstein, Cass R. Designing Democracy: What Constitutions Do (Oxford University Press, 2001). Tushnet, Mark. (1999). ‘The Possibilities of Comparative Constitutional Law,’ Yale Law Journal 108: 1225–309. Versteeg, Mila. (2015). ‘Law Versus Norms: The Impact of Human-Rights Treaties on National Bills of Rights,’ Journal of Institutional & Theoretical Economics 171: 87–111. Versteeg, Mila. (2014). ‘Unpopular Constitutionalism,’ Indiana Law Journal 89: 1133–90. Weigård, Jarle. ‘Is there a Special Justification for Indigenous Rights?,’ in Henry Minde (ed) Indigenous Peoples: Self-Determination Knowledge Indigeneity (Eburon Academic Publishers, 2008).

452  Research handbook on the politics of constitutional law Weingast, Barry & Sonia Mittal. (2013). ‘Self-Enforcing Constitutions: With an Application to Democratic Stability in America’s First Century,’ Journal of Law, Economics & Organization 29: 278–302. Weingast, Barry. (1997). ‘Political Foundations of Democracy and the Rule of Law,’ American Political Science Review 91: 245–63. Weinrib, Laura. The Taming of Free Speech: America’s Civil Liberties Compromise (Harvard University Press, 2016). White, G. Edward. (1996). ‘The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America,’ Michigan Law Review 95: 299–392. Widner, Jennifer. (2008). ‘Constitution Writing in Post-Conflict Settings: An Overview,’ William & Mary Law Review 49: 1513–41. Wong, Edward & Jonathan Ansfield, ‘Reformers Aim to Get China to Live Up to Own Constitution,’ New York Times (3 February 2013), http://​www​.nytimes​.com/​2013/​02/​04/​world/​asia/​reformers​-aim​ -to​-get​-china​-to​-live​-up​-to​-own​-constitution​.html.

25. Pretext as a legal matter Mariam Begadze

1. INTRODUCTION Illiberal democracies routinely cheat, putting forward seemingly neutral legitimate aims to cover up ulterior motives. Sajó captured this phenomenon in the term ‘ruling by cheating’ (2021), while Scheppele’s prior characterisation of ‘autocratic legalism’ also included such practices (2018, 552). As Lukina reminds us in this Handbook, instrumentalisation of law that empowers more than constrains has its roots in evil regimes such as Nazi Germany and Stalinist Soviet Union (2023). Since then, illiberal rulers have become more delicate and skilled in utilising the rule of law to their benefit. As Sajó puts it ‘illiberal democracy knows how to behave and, […] it cheats only to the extent that is necessary’ (Sajó 2019). This is besides the strategy to achieve the systemic, aggregate anti-constitutional effect through fragmented otherwise tolerated weaknesses with the minimum political cost possible (Scheppele 2013). Pretextual decision-making entails serious risks of corrupting constitutional governance and of instilling distrust in the whole system and differs from openly pursuing political interests which sometimes can be reconciled with the constitutional scheme, for instance, when risks of political irresponsibility are low or constrained through normal political processes without judicial interference (Tushnet 1989). In contrast, it is argued here that pretextual decision-making is not conducive to resolution through normal political processes. More so, such decision-making may need to be remedied by transnational judicial checks alongside ‘transnational militant democracy’ which as Beširević argues in this Handbook can be an appropriate tool for saving national democracies from regression (2023). Nevertheless, addressing legal cheating of this sort remains the Achilles heel for courts, particularly domestic courts. Attributing bad faith to co-equal branches of government is not too easy in a separation of powers scheme. Despite its long presence in administrative law (Hoexter 1994; Tsampi 2020, 139) and being one of the earliest problems in constitutional law,1 the imputing of bad faith to co-equal branches, especially multi-member bodies such as Parliament, is still a marginal development (Fallon 2016; Nelson 2008; Gardbaum 2016, 160). This is not surprising as judges aware of retaliation risks due to bad faith analysis may preemptively forestall it (Pozen 2016; Nelson 2008; Gardbaum 2016; Dworkin 1986; Farrell 2016; Kent and Denning 2014; Sajó 2019, 372). Built-in tension between judicial independence and the rest of the political system is generally characteristic of constitutional review (Tushnet 2015; Roux 2009). However, the politics of constitutional review and risks of retaliation are particularly pronounced when political actors get blamed for cheating to disguise ulterior As Chief Justice Marshall stated already in 1819 ‘Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.’ McCulloch v. Maryland, 17 US 316 (1819). 1

453

454  Research handbook on the politics of constitutional law motives behind otherwise legitimate pretexts (Gildenhuys 2020). Discussing the judicial dilemma of imputing bad faith to co-equal branches ‘on pain of a severe political backlash’, Uitz points out that ‘a strong presumption of constitutionality together with expectations of judicial deference’ in such cases calls for particularly convincing evidence (Uitz 2019, 474). A higher evidentiary standard and/or arguments related to separation of powers and political question doctrines address precisely the politics around pretext analysis in courts. Nevertheless, sometimes courts still find enough evidence to explicitly pinpoint pretext. This happened in response to the recent developments in hybrid regimes of Europe, prime examples being the Article 18 jurisprudence of the European Court of Human Rights (ECtHR) and the case-law of the Court of Justice of the European Union (CJEU) on judicial (so-called pension) reform in Poland. The Venice Commission has pointed to pretext in the context of removals of opposition mayors by the central government in Turkey. Pretext analysis has long been familiar to the US Supreme Court (SCOTUS). The view that there can be reliable, judicially manageable standards on pretextual rulemaking is also gaining more ground in the literature. This chapter will discuss these developments both in theory and practice posing the question whether judicial scrutiny of pretextual rulemaking is both normatively desirable and feasible in some areas more than others. It is argued here that such areas are large-scale judicial reforms and recentralisation policies affecting opposition-led local governments.

2.

PECULIAR ABSENCE OF PRETEXT ANALYSIS IN CONSTITUTIONAL LAW

As a rule, courts have deferred to what has been presented to them as a legitimate aim of a measure taken by political branches, without much inquiry into their subjective purposes. This is not surprising, as there are objective doctrinal obstacles to such an exercise. First and foremost, there are problems of attributing intention, especially to a multimember body such as Parliament (Dworkin 1986, 317–333; Farrell 2016; Pozen 2016), less so to an executive branch (Huq 2019; Shaw 2019). Identification of intent is also heavily fact-dependent, so the judicial method will have to differ across the board, often making jurisprudence vulnerable to inconsistency (Fallon 2016, 558). Furthermore, it is simply a challenge under the separation of powers (SoP) to attribute bad faith (rather than an error in judgement) to a co-equal branch of government, less so with lower ranking officials or lowkey agencies, which is why such enforcement is more frequent there. Retaliation is also likely (Pozen 2016, 898, 911; Kent and Denning 2014, 420). These hurdles are well illustrated in the jurisprudence of the South African Constitutional Court (SACC), which finds alternative, sometimes ‘shaky’ means of addressing suspected ulterior motives.2 The prime examples are decisions concerning disbanding of a crime investigation unit dealing with the case against the President and the appointment of the National Director of Public Prosecutions (with important powers in determining prosecution policy) established to have given false testimony to a commission studying the fitness of the previous 2 Exceptionally, the Court was more open about President Zuma’s bad faith after he had already resigned stating he was ‘bent on getting rid of’ the National Director of Public Prosecutions by ‘whatever means he could muster’, see Corruption Watch NPC and Others v. President of the Republic of South Africa and Others; Nxasana v. Corruption Watch NPC and Others (2018) (2) SACR 442 (CC), para 25.

Pretext as a legal matter  455 Director. In the former, the Constitutional Court preferred to rule against the disbanding on other ‘shaky’ grounds such as the requirement of an independent anti-corruption body in the Constitution3 as interpreted in line with UN Convention Against Corruption that South Africa had ratified (for criticisms see Tuovinen 2013; Issacharoff 2013; Krüger 2015), instead of agreeing with applicants that from the evidence an ‘inference’ could be drawn about the ‘true motive of the impugned laws […] to shield high-ranking members of the ANC from prosecution […]’.4 In the second case, the Constitutional Court found it unnecessary to determine ‘whether the President had an ulterior purpose in making the appointment.’5 However, in this case, the Court did go an extra mile to find an alternative means of addressing the suspected ‘cheating’ by subjecting the decision-making process itself to rationality scrutiny. In the Court’s words ‘[w]e must look at the process as a whole and determine whether the steps in the process were rationally related to the end sought to be achieved and, if not, whether the absence of a connection between a particular step (part of the means) is so unrelated to the end as to taint the whole process with irrationality.’6 Based on this standard, the Court found that ignoring evidence regarding the appointed candidate’s dishonesty had ‘coloured the rationality of the entire process, and thus rendered the ultimate decision irrational.’7 One can hardly miss that the same irrationality of the entire process had also tainted the trust in the good faith of the decision-maker, final decision and the appointed candidate, however, the decision still opted for a substantive procedure-related standard valid irrespective of the motive. Elsewhere the SACC had elaborated on the reasons behind the reluctance to attribute bad faith to decision-makers, in that case, legislators: ‘if the Court preoccupies itself with what precedes the passing of the legislation (the motive), to the exclusion of its actual purpose, it would fail to focus on the proper object of the enquiry, which is the rationality of the legislation and not necessarily the motives of those who enacted it.’8 Despite the theoretical difficulties of imputing bad faith to co-equal branches of government illustrated in these decisions, the literature continues to seek for middle-ground approaches, including by utilising analysis of the decision-making process along similar lines as the SACC. Fallon argues that there are plenty of accepted9 objective measures of ascribing a specific intent to an institution. Such are the text and the context in which it was adopted, practical and expressive effects of the statute, which according to him, is conducive to incorporation under substantive content and effects-based standards. For Fallon, when other objective indications of an impermissible motive are present, a higher scrutiny of substantive standards must be triggered, but eventually the same effects-based substantive standards must prevail (Fallon 2016). Landau goes a step further basing his arguments on Linde’s concept of ‘due process

3 Constitutional norms imbued with international standards were s 7(2), read with FC s 205 and FC s 231. 4 Glenister v. The President of the Republic of South Africa (2011) (3) SA 347 (CC), see para 61, also paras 69, 179–202. 5 Ibid, para 91. 6 Democratic Alliance v. President of South Africa and Others (CCT 122/11) 2013 (1) SA 248 (CC) (5 October 2012), paras 36, 37. 7 Ibid, para 86. 8 Poverty Alleviation Network and Others v. President of the Republic of South Africa and Others (2010) (6) BCLR 520 (CC), para 73. 9 This is so especially in the context of interpreting statutes on the basis of legislative intentions, which is an issue in the debates on textualist and originalist statutory interpretation methods.

456  Research handbook on the politics of constitutional law of lawmaking’ (Linde 1975). He proposes a specific methodology for identifying motives. He proposes using ex ante (e.g. duration and quality of deliberations, interagency and expert involvement, break from long-standing traditions of policy-making) and ex post (conforming to own aims and procedures) procedural defects as a radar for bad faith analysis and application for heightened scrutiny.10 According to him, such objective practices chosen by the political branches vis-à-vis already existing procedural standards can be a useful starting point in deciphering subjective motivation otherwise hard to capture legally (Landau 2019). The idea that stricter scrutiny can be triggered by irregularities in the political process originates in a famous case of Caroline Products decided by the US Supreme Court (SCOTUS) jurisprudence in 1938,11 later to become the basis of Ely’s famous political process theory noted above (Ely 1980). However, unlike Ely12 (1980), Linde and Landau look at the micro-level political process. Interestingly, Ely had himself advocated for the intent analysis in certain narrow circumstances (Ely 1970). Scrutiny of the process of enacting law or policy, in general, is not unknown to jurisprudence. A common caveat of procedural inquiry is that these judicial findings can be counterproductive as the political branches manage to better camouflage bad faith following the roadmap set by the judiciary (Coenen 2009; Kent and Denning 2014, 420; Landau 2019, 2154, 2193, 2196). However, the challenge is not unsurmountable and can have a doctrinal solution as well. As Aviel argues ‘second-bite lawmaking’ must bear the irregular burden of proving that prior impermissible intent has indeed disappeared. For her, ‘[t]o treat the presumption of legislative good faith as an infinitely renewable resource is to undermine the substantive constitutional principles underlying these multi-phased disputes’ (Aviel 2022, 58–59). Landau proposes another objective measure of intent with the consequent shifting of burden – so-called ‘broken records review’, when courts rather than directly reviewing intent opt for reviewing whether presented ends of legislation are ‘grounded in some objective measure of basic truth or rationality’ or ‘alternative facts’, but without itself engaging in factfinding. However, as stated by the author himself, this approach cannot cover all instances of bad faith, but only those which are discernible through actual falsity of facts. This would exclude purely moral, value-based rationales presented. As Landau explains ‘[o]nly when proponents of values legislation seek to redouble the justification for their actions by citing alternative facts does broken records review activate.’ (Landau 2020). Finally, it is argued in this chapter that certain constitutional cases ask for more pretext scrutiny than others. Constitutional cases concerning opposition-led local governments and judicial reforms are precisely such examples. In a similar vein, Landau believes that certain constitutional cases call for procedural scrutiny by necessity; for example, the requirement for policy to be narrowly tailored to its goal implies that the procedure that is supposed to ensure such a careful approach was taken (Landau 2019, 2188).

The argument is primarily discussed in the discrimination context; however, the author notes its broader relevance for constitutional law as well. 11 United States v. Carolene Products Co., 304 U.S. 144 (1938). 12 Ely’s famous political process theory expounds the judicial role of correcting defects of the political process on the macro level, such as lack of access for minorities. 10

Pretext as a legal matter  457

3.

PRETEXT ANALYSIS IN DOMESTIC COURTS: SCOTUS

Despite being non-comprehensive and somewhat inconsistent, examination of legislative purpose has a long and rich history in the US jurisprudence. As stated, the concern with pretextual rule-making dates to McCulloch in 1819, however, that pronouncement was soon pushed to the margins. Nelson demonstrates that certain interpretations and ‘bright-line’ substantive restraints on legislatures in the early SCOTUS jurisprudence emerged precisely as a response to the absence of purpose-based standards (2008, 1860, 1872–1876). The Court often rediscovered the difficulty of uncovering motive,13 to later fall back on such analysis, as happened with indirect discrimination cases decided in the 1970s.14 Now, it is not disputed that SCOTUS can discuss pretext in certain categories of rights cases, for instance, on freedom of expression, religion, and most importantly, prohibition of discrimination, in which prohibition of certain motives (e.g., support of a religion, racial prejudice, animus-inspired laws) are part of the substantive standards. Also, the (now repudiated) ‘undue burden’ test regarding abortion regulation prohibited ‘purpose’ that placed substantial barriers to accessing abortion before the fetus attained viability.15 Apart from these rights, analysis of prohibited purposes and intent also feature in Commerce Clause and Unconstitutional Conditions doctrines (Pozen 2016; Fallon 2016; Nelson 2008; Seinfeld 2002). The Court had made divergent interpretations, as to whether impermissible purpose alone suffices. For instance, it implied that the law might be saved in certain circumstances if the intended effect is not achieved; or despite the intent the same rules would be adopted (motive is not but-for cause); or when such impermissible purpose produced a law that serves a compelling interest and is narrowly tailored16 (Nelson 2008, 1853–1856; Fallon 2016, 554–556). The most important change in the jurisprudence in the last 50 years was the shift to less stringent evidentiary standards and a more direct recognition that an ulterior purpose has to be ‘unearthed’ sometimes proactively although a presumption of constitutionality and legitimate purpose remains (Nelson 2008, 1858–1859, 1879). SCOTUS established the standard of inferring conclusions from the totality of facts and contextual evidence,17 including legislative and administrative history, ‘sequence of events leading up to the challenged decision’, statements made and, as noted, procedural factors as sources for identifying motivation behind laws and policies. It was not ruled out that at times individual legislators would have to testify (Landau 2019, 2161; Nelson 2008, 1850–1851).18 The SCOTUS explicitly directed its attention to micro-level defects of the political process when stating that ‘departure from the normal procedural sequence also might afford evidence that improper purposes are playing a role.’19 Such a procedural inquiry has not always been favoured. For instance, it is sidestepped by animus analysis under the rational review test even when animus is inferred from the fact that the established tradition of law-making was deviated from (Landau 2019, 2199–2202; Pozen Palmer v. Thompson, 403 U.S. 217, 224–25 (1971). Washington v. Davis, 426 U.S. 229 (1976). 15 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 877 (1992). 16 Fallon brings a hypothetical example that a statute prohibiting murder should be sustained even if adopted with a religious motive to enforce god’s commandments. 17 Washington v. Davis, 426 U.S. 229 (1976); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977); dm'r of Massachusetts v. Feeney, 442 U.S. 256 (1979). 18 Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977). 19 Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977). 13 14

458  Research handbook on the politics of constitutional law 2016, 903).20 Recently, such microlevel procedural review became more intensely linked to motivational analysis in the US lower courts’ jurisprudence (Landau 2019, 2156, 2159–2167, 2181–2184). Microlevel procedural scrutiny also obtained a reverse role, for instance, providing a basis for deference as problematic laws were tolerated when expert input on the side-effects of the policy or the fact of holding prior extensive deliberations refuted the doubts (Landau 2019, 2152, 2157, 2167–2171).21 The recent decision on Trump’s entry ban from Muslim-majority countries is a prime example of this. While initial procedural irregularities coupled with problematic statements made by the President were taken as evidence of bad faith, when some of the irregularities were fixed in the final version of the bill challenged before the SCOTUS, procedural factors were now used for justifying deference.22 It is noteworthy that a case decided a few days before Hawaii had a radically different approach to prejudicial statements of one member of a multimember commission.23 Post-Hawaii jurisprudence in the lower courts on the same policy illustrates that ex post procedural irregularities remain relevant coupled with the prior procedural history for unmasking the prevailing pretext behind the policy. The deference shown by SCOTUS compared to lower courts can perhaps be further attributed to the difficulties with SoP when it comes to imputing bad faith to a coequal branch of power, with no possibility to appeal. SoP can also explain perhaps the more active stance of SCOTUS when it comes to lower-level agency decisions (Landau, 2159–2167, 2173–2179, 2188–2192, 2196). The recent SCOTUS refusal to intervene to bar ‘shameless’ gerrymandering acknowledged by invoking the ‘political question doctrine’ best displays the embedded potential for inconsistency and the political sensitivity underpinning motivational analysis especially when the ruling government is directly affected. This was despite ample jurisprudence to be consulted on racial gerrymandering, existing lower court decisions in the same case and the clear evidence such as the legislator in charge of developing a districting plan stating without much ado: ‘I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country’. The Court missed the opportunity to develop a clear doctrine about the reprehensibility of legislating with ulterior motives seriously distorting the ‘will of people’; this must be uncontroversial among illiberals as well (Sajó 2021, 295).24 Despite (1) the jurisprudence remaining filled with ambiguity (Fallon 2016, 528, 554; Landau 2019, 2188–2190; Huq 2019, 1211; Yoshino 2011, 764), which is not surprising due to the highly fact-dependent nature of the intent analysis, (2) SoP considerations in imputing bad faith to coequal branches, as well as (3) the unavailability of an uncontroversial concept of procedural irregularity (Landau 2019, 2107), it is clear that courts cannot completely evade issues of pretext and ulterior motive. As to the possible counterproductive role of procedural inquiry for motivation analysis, dissenting judges in Hawaii came quite close to Aviel’s heightened scrutiny of second-bite lawmaking (Aviel 2022), when they did not hold fixed procedural irregularities sufficient for disproving bad faith. Moreover, in the contemporary partisan environment, observation of procedural norms will not be without impact and together with

Romer v. Evans 517 U.S. 620 (1996); United States v. Windsor, 570 U.S. 744 (2013). See Washington v. Davis, 426 U.S. 229 (1976); Fisher v. University of Texas at Austin, 579 U.S. (2016); Kelo v. City of New London, 545 U.S. 469 (2005). 22 Trump v. Hawaii, 585 U.S. (2018). 23 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. (2018). 24 Rucho v. Common Cause, 139 U.S. 2484 (2019). 20 21

Pretext as a legal matter  459 the deliberation-enhancing nature of court proceedings itself, are likely to increase the political costs of keeping identical measures in place.

4.

PRETEXT ANALYSIS IN THE EUROPEAN REGIONAL COURTS

In Europe, constitutional courts as well as the ECtHR manage to evade direct assessment of government bad faith in rights cases by subsuming the analysis under the rigorous scrutiny of government means through a proportionality test (Gardbaum 2016, 160). For ECtHR, this can also be explained by the separate discussion of bad faith under Article 18 of the European Convention of Human Rights. While previously marginal, pretext analysis seems to be emerging in the jurisprudence of ECtHR, as well as CJEU, dealing with illiberal and populist shifts. Article 18 of the ECtHR states that permitted restrictions to Convention rights ‘shall not be applied for any purpose other than those for which they have been prescribed.’ Since 2004 when the first violation was found under this Article, the case-law focused on suppressing opposition political movements or civil dissent mostly in connection with the right to liberty claims, and more recently, also with the right to assembly. As in the US the most outstanding development is the relaxation of a prior rarely attainable standard of ‘direct and incontrovertible proof’ of an ulterior motive, in the Merabishvili judgment in 2018. There the Court returned to the general standard of ‘beyond reasonable doubt’ to find that rights restrictions were ‘chiefly meant for another purpose that is not prescribed by the Convention; in other words, if that other purpose was predominant.’ The Court gave itself broad leeway as to the kinds of evidence it could consider specifying that ‘nature and degree of reprehensibility of the alleged ulterior purpose’ would be considered in determining such predominance25 (although such a link is not so clear) (Tan 2018, 138). Despite relaxing the standard, the nature of cases decided under this Article as well as the reasoning indicate that Article 18 remains the last resort and is suited for situations when there are systemic deficiencies of SoP within the state, in the Court’s description when the case at hand is part of broader ‘troubling patterns’,26 which could not have been remedied by either of the branches, including the national courts.27 Such a conclusion can also be drawn from the decision against Turkey, in which the Court discussed the arbitrary detention of an opposition MP under Article 18 taking into account the broader context, such as the problems of the independence of the judiciary under the new presidential system.28 Although the scholarship does find Article 18 jurisprudence relevant to the general problems of backsliding in Hungary, Poland, and Turkey (Helfer 2020, 227–229; Tsampi 2020, 135; Tan 2018, 113), up to now Article 18 has not been used in relation to general legislative reforms, for instance, in conjunction with Article 6 to address attacks on judicial independence (Tan 2018, 124). The Court did not engage in such an exercise in crucial cases such as

Merabishvili v. Georgia [GC], no. 72508/13, § 305–307, 28 November 2017. Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, §223, 20 September 2018. 27 Tsampi, Aikaterini. ‘The New Doctrine on Misuse of Power under Article 18 ECHR: Is It about the System of Contre-Pouvoirs within the State after All?’ Netherlands Quarterly of Human Rights 38, no. 2 (June 2020): 134, 148–150. 28 Selahattin Demirtaş v. Turkey (No. 2) [GC], no. 14305/17, §434, 22 December 2020. 25 26

460  Research handbook on the politics of constitutional law Baka, although the applicant raised the issue of pretext,29 neither did it explicitly recognise an ulterior motive in the first cases in which it ‘stepped into the ring’ (Leloup 2021) against rule of law backsliding in Poland finding that the Constitutional Court30 and the disciplinary chamber31 were not tribunals ‘established by law’. Seemingly, the Court does not see the need for assessing a motive, while substantive standards such as the impermissibility of breaching fundamental rules of domestic law on the appointment procedures take care of the issue.32 Testing the ground with substantive standards first, the ECtHR is now becoming more candid about bad faith and pretext in the cases concerning judicial independence in Poland. Most recently, substantially addressing the same issues regarding the Chamber of Extraordinary Review and Public Affairs33 and the Civil Chamber, the Court added a significant passage, acknowledging not only the fact that there was a breach sufficiently reprehensible to taint the appointments but also that it was made in ‘utter disregard for the authority, independence and role of the judiciary’ and with an ‘ulterior motive’: Those actions were clearly taken with the ulterior motive of not only influencing the outcome of the pending court proceedings but also preventing the proper examination of the legality of the resolution that recommended candidates for judicial posts and, in consequence, rendering judicial review of the resolution meaningless. They were aimed at ensuring that the judicial appointments as proposed by the NCJ – a body over which the executive and the legislative authorities held an unfettered power – would be given effect even at the cost of undermining the authority of the Supreme Administrative Court, one of the country’s highest courts, and despite the risk of setting up an unlawful court.34

Apart from Article 18 and the latter jurisprudence on judicial independence, other occasions when the ECtHR explicitly noted the Convention’s concern with pretextual state action concerned emergency rule,35 and inspection of political parties.36 Bad faith analysis has also

Baka v. Hungary [GC], no. 20261/12, §126, 23 June 2016. Xero Flor w Polsce sp. z o.o. v. Poland, no. 4907/18, 7 May 2021. 31 Reczkowicz v. Poland, no. 43447/19, 22 July 2021. 32 See also Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, 1 December 2020; Dolińska-Ficek and Ozimek v. Poland, nos. 49868/19 and 57511/19, 8 November 2021. 33 Through Legislative changes introduced in 2019, the Chamber of Extraordinary Review and Public Affairs acquired exclusive jurisdiction to decide all matters related to the independence of the judiciary, including challenges against NCJ recommendations (resolutions) for judicial appointments by the President of Poland, see Dolińska-Ficek and Ozimek v. Poland, nos. 49868/19 and 57511/19, §337, 8 November 2021. 34 Dolińska-Ficek and Ozimek v. Poland, nos. 49868/19 and 57511/19, § 330, 8 November 2021; Advance Pharma sp. z o.o v. Poland, no. 1469/20, § 333, 3 February 2022. 35 ‘[..]the existence of a “public emergency threatening the life of the nation” must not serve as a pretext for limiting freedom of political debate, which is at the very core of the concept of a democratic society.’ It is noteworthy that the Court reluctantly accepts the legitimate aim: ‘As regards the “legitimate aim” pursued by the interference, the Court is prepared to accept that it was intended to prevent disorder and crime.’ see Şahin Alpay v. Turkey, no. 16538/17, §176, 180, 20 March 2018. 36 ‘[..] the Court would stress that while the important purpose served by the financial inspection of political parties is undeniable, such inspection should never be used as a political tool to exercise control over political parties, especially on the pretext that the party is publicly financed. In order to prevent the abuse of the financial inspection mechanism for political purposes, a high standard of “foreseeability” must be applied with regard to laws that govern the inspection of the finances of political parties, in terms of both the specific requirements imposed and the sanctions that a breach of those requirements entails.’ See Cumhuriyet Halk Partisi v. Turkey, no. 19920/13, §88, 26 April 2016. 29 30

Pretext as a legal matter  461 been naturally present in cases, in which arbitrariness of detentions is discussed.37 Selective treatment of pretext by the ECtHR reflects the Chapter’s argument that constitutional norms against bad faith could be part of substantive standards more in some cases than others. The CJEU had been candid about bad faith behind judicial reforms in Poland earlier than the ECtHR, though not at its first shot when it was discussing similar inconsistencies of the Hungarian judicial reform in 2012.38 In a 2019 judgment on the judicial reforms in Poland, the CJEU felt empowered to demonstrate that due to various fallacies and inconsistencies in the government’s own logic, a measure adopted raised ‘serious doubts’ as to the ulterior purpose of ‘side-lining a certain group, almost a third of the serving members of the Supreme Court and therefore, could not be held to serve a legitimate objective’.39 Although the Court accepts that, in general, it is permissible to aim for standardisation of age limits for mandatory retirement from the public sector, including in the judiciary, the Court found that the Polish government could not dispel the doubts about the impermissible ulterior purpose of removing a certain group of judges. The Court stated that exceptions to the principle of the irremovability of judges must be justified by legitimate and compelling objectives and must be proportionate to these objectives, so that the appearance of judicial independence in the eyes of individuals is not compromised. The Court refers to the logical incongruence of introducing a parallel presidential discretion to extend the judicial service by six years, and also of keeping the optional nature of retirement age schemes in other sectors.40 Although the judgment itself does not explicitly discuss this, the memorandum to the draft law justified the ‘reform of judicial retirement age’ with reference to ‘historical experiences of communism, the failure to account for the past for many years, and pathological mechanisms of the functioning of courts that have been perpetuated for years’ (Pech and Kochenov 2021, 73). The Venice Commission had more directly engaged with the memorandum finding it inconsistent that within the framework of the pension reform so-called unfit judges would be kept before them reaching the retirement age, instead of removing them using existing disciplinary and lustration procedures (2017, para 47). The Court similarly doubted the aims behind equivalent measures against Polish ordinary courts in a subsequent judgment. In the Court’s words: ‘[…] having regard, in particular, to certain preparatory documents relating to the reform at issue, the combination of the two measures referred to in the previous paragraph is such as to create, in the minds of individuals, reasonable doubts regarding the fact that the new system might actually have been intended to enable the Minister for Justice, acting in his discretion, to remove, once the newly set normal retirement age was reached, certain groups of judges serving in the ordinary Polish courts while retaining others of those judges in post.’41 Since the mentioned decisions, the CJEU further developed standards of judicial independence. Although the intentional element was still noted, the Court did not deal with a plurality of aims, and therefore did not have to uncover the true ones as the effect on the judicial system Saadi v. the United Kingdom [GC], no. 13229/03, §69, ECHR 2008. European Commission v. Hungary, Judgment of the Court of Justice of 6 November 2012, C-286/12. 39 European Commission v. Republic of Poland, Judgment of the Court (Grand Chamber), 24 June 2019, C 619/18. 40 Ibid, 79, 82–90. 41 Case C-192/18 Commission v. Poland (Independence of Ordinary Courts), EU:C:2019:924, para 127. 37 38

462  Research handbook on the politics of constitutional law was not an incidental effect of neutral measures. For instance, the CJEU declared the reform contrary to EU law, which had the clear intention of preventing an effective judicial review of the judicial appointment decisions made by Poland’s new National Council of the Judiciary (NCJ). The Court directly reprehended the purpose behind the changes with its ‘retrograde impact’. The Court stated: ‘[..] such legislative amendments, particularly when viewed in conjunction with all the contextual factors mentioned [..] are such as to suggest that, in this case, the Polish legislature has acted with the specific intention of preventing any possibility of exercising judicial review of the appointments [..]’.42 While the aim was not disputed, the Court and the government differed in evaluating the impact of such an endeavour on judicial independence. Although not always clear-cut, the above court cases indicate that the evidence of an ulterior motive (at least beyond reasonable doubt) is and can be used for refuting the government’s assertion that it was serving a legitimate aim with the judicial reform. Without explicitly invoking higher scrutiny, the CJEU finds that ‘serious doubts’ about an ulterior motive unless refuted is sufficient for a finding of a violation when it comes to judicial independence. This could be attributable to specific substantive standards of judicial independence such as the appearance of independence, which could incorporate motive analysis and bar situations even when incontrovertible proof is unavailable. Interestingly, the ECtHR is less careful with the wording claiming motive as a matter of fact: ‘[..] actions were clearly taken with the ulterior motive’. This could be explained by the presence of Article 18. With Article 18 in the background, any motive analysis by the Court is not seen as a leap in the jurisprudence. However, in cases outside Article 18 jurisprudence, understandably, pretext analysis remains secondary. The possibility of legally constructing pretext is also visible in the reports of such authoritative bodies as the Venice Commission and the Monitoring Committee in relation to a Turkish bill on the substitution of elected mayors with trustees. The Venice Commission states that the introduction of permanent changes during the post-coup state of emergency was all the more questionable considering the amendment was on the agenda earlier in 2016 as part of a bill, which failed due to opposition. According to the Venice Commission this ‘supports the perception that the measures allowed by the Decree Law are actually designed and/or used to address (also) more general problems facing the Turkish authorities as they see it, not necessarily having a link to the management of the state of emergency [emphasis added].’ (Venice Commission 2017a, para 67). Similarly, the Monitoring Committee felt the need to see through the government’s declared purposes: ‘If one combines all these events, facts and situations, one could easily conclude that the government might be pursuing an agenda of systematically acting against the HDP local elected representatives, using the mechanisms available in Turkish legislation, that is, by having recourse to abusive prosecutions’ (Monitoring Committee, 2022, para 272).

42 Case C-824/18 A.B. et al. (Appointment of judges to the Supreme Court – Actions) EU:C: 2021:153, paras 138–39.

Pretext as a legal matter  463

5.

CONCLUSION: TIME FOR A CONSTITUTIONAL NORM AGAINST BAD FAITH?

Despite the differences, both streams of case-law in the US and Europe confirm that judicial construction of pretext is possible and often needed. There are no insurmountable barriers to doctrinal conceptualisation of pretext. In fact, it has been done for a long time now in relation to various rights, and in combination with different methods of analysis. It is true that the doctrine on pretext is not comprehensive and has been filled with ambiguity and inconsistency. However, that should not be the reason for giving up on gradually building a theory for a more coherent judicial practice. It is argued in this chapter that such theorising should be incremental, first applying the analysis to more appropriate case scenarios, which are large-scale judicial reforms and recentralisation measures affecting opposition-led local governments. As standards of judicial independence entail the principle on appearance of judicial independence, its enforcement could convincingly incorporate motive analysis as prevention against ulterior motives tainting the appearance of judicial independence even in the absence of incontrovertible evidence (this seems to have already been done by the CJEU). Another such domain is subnational illiberalism, when opposition-led local governments are targeted for concentration and perpetuation of power. Elevated concern for motive analysis when measures are directed against opposition-led local governments can also be supported by broader normative theories in the literature. Issacharoff and Pildes have advocated for judicial action in order to correct dysfunctions of democracy, by incorporating concern for structural antecedents such as competitive political markets for political parties under substantive constitutional standards (1998). In this case, apart from a particular need, the relative ease of deciphering partisan motives when clear opponents are targeted also matters. Even if judicial construction of pretext ends up backstage or only as a burden-shifting tool when substantive standards prevail, theorising can still contribute to a more coherent and informed judicial practice. Bearing in mind theoretical and jurisprudential observations, relevant questions for the judicial construction of pretext can be formulated as follows: what is the alleged ulterior motive? Has there been an attempt to adopt the same policy before and why has it failed? Why and how is it pursued (again) in the current circumstances? Is it reasonably likely that that ulterior purpose will be achieved? Are there risks of selective enforcement of a general measure? Is there already evidence of an ulterior purpose pursued from its implementation? Could the effects be merely incidental or are there connections with the efforts and motives of rule-makers? (Nelson 2008, 1857) Have there been parallel policies, which could be pursuing the same ulterior motive by other means? Could the stated goals be achieved through existing legal norms? Was it possible to pursue that aim without ‘incidentally’ creating a legal basis to also pursue an (impermissible) ulterior purpose? Is the measure consistent with the broader legal system, other established norms? Did the policy-making process deviate from the traditional norms? Are there other procedural violations? If the complexity of the change so required, was there sufficient interagency/expert input? Was the law based on factual errors? Were there opportunistic efforts made to ‘hoodwink’ the public into the changes through a non-transparent, secretive process and/or adopting them when public attention is elsewhere? Did relevant statements made by policymakers or legislators taint the good faith behind the changes? These questions may be more specific when addressing a particular problem, for instance, whether it is directed towards the judiciary or a local government. The difficulties of

464  Research handbook on the politics of constitutional law attributing bad faith may also differ based on who is the author, executive or a multi-member legislative body. Retaliation risks expected to follow from pretext analysis also vary. Retaliation risks are irrelevant when international courts such as ECtHR and CJEU are adjudicating, whose vulnerability is limited to non-compliance by the states found in breach, unlike the purely domestic context in which SCOTUS finds itself. Retaliation risks may also be relatively less when stronger actors such as local government units rather than individuals are before the Court. Paradoxically, pretext analysis in courts may be more justified in situations where institutional insecurity is at its highest, namely when large scale judicial reforms before the courts already threaten its independence and institutional power. The availability of judicially manageable criteria also matters (Tushnet 1989).43 Retaliation risks can also be reduced through a heightened legitimacy of court decisions due to the existence of criteria, such as a bar to selective, partisan enforcement of a recentralisation measure across local government units and a more flexible standard of appearance of judicial independence. Such an approach that contextual analysis of political realities surrounding judicial review are and should be integrated in the thinking about doctrines (as well as constitutional design) is well-established in the literature (Tushnet 1989; Tushnet 1990; Tushnet 2015; Issacharoff and Pildes 1998; Choudhry 2009; Gildenhuys 2020) and the Chapter builds on them in the specific context of judicialising pretext analysis. The argument here is not that direct confrontation with co-equal branches by imputing bad faith is always a desirable judicial strategy. Disguising that bad faith is the crux of the issue by using other less political rationales available for reaching the same judicial outcome may be necessary for protecting the institutional security of courts (Gildenhuys 2020). However, even if ‘neutral’ substantive standards are deployed instead, the above considerations are still valuable for backdoor analysis. Moreover, if large-scale judicial reforms are to succeed without much resistance leading to political capture of the judicial branch, a robust norm against bad faith will have to be built on the regional or international level with more institutionally secure judicial bodies. This seems to be happening as we speak.

REFERENCES Aviel, R. (2022) ‘Second-Bite Lawmaking,’ North Carolina Law Review 100: 947. Beširević V. ‘Militant Democracy: A Friend or Enemy of Democratic Backsliding?’ in D. Kochenov & M. Tushnet (eds) Research Handbook on the Politics of Constitutional Law (Routledge, 2023). Bland, G. (2011). ‘Considering Local Democratic Transition in Latin America,’ Journal of Politics in Latin America 3: 65–98. https://​doi​.org/​10​.1177/​1866802X1100300103. Çalı, B. & E. Turkut. ‘Turkey: Pandemic Governance and Executive Aggrandisement’ in J. Grogan & A. Donald (eds) Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022). Choudhry, S. (2009). ‘“He had a mandate”; the South African Constitutional Court and the African National Congress in a dominant party democracy,’ Constitutional Court Review 2: 1–86. https://​doi​ .org/​10​.2989/​CCR/​2009​.0001. Coenen, D. (2009). ‘The Pros and Cons of Politically Reversible “Semisubstantive” Constitutional Rules,’ Fordham Law Review 77: 2835.

43 Tushnet argued that in some areas such as judicial nomination hearings politically interested action was constitutionally permissible as the second of the two cumulative conditions – existence of external evaluative criteria and inability of the ordinary political processes to constrain political irresponsibility – are not met.

Pretext as a legal matter  465 Committee on the Honouring of Obligations and Commitments by member States of the European Charter of Local Self-Government (Monitoring Committee) (2022) Monitoring of the application of the European Charter of Local Self-Government in Turkey https://​rm​.coe​.int/​0900001680a5b1d3. Dworkin, R. Law’s Empire (Belknap Press, 1986). Ely, J.H. Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980). Ely, J.H. (1970). ‘Legislative and Administrative Motivation in Constitutional Law,’ The Yale Law Journal 79: 1205–1341. https://​doi​.org/​10​.2307/​795168. Fallon, R.H. (2016). ‘Constitutionally Forbidden Legislative Intent,’ Harvard Law Review 130: 523–589. Farole, S.A. (2021). ‘Eroding Support from Below: Performance in Local Government and Opposition Party Growth in South Africa,’ Gov & oppos 56: 525–44. https://​doi​.org/​10​.1017/​gov​.2020​.7 Farrell, R.C. (1992). ‘Legislative Purpose and Equal Protection’s Rationality Review,’ Villanova Law Review 37: 1–37. https://​digitalcommons​.law​.villanova​.edu/​vlr/​vol37/​iss1/​1. Gardbaum, S. (2016). ‘Comparing Constitutional Bad Faith,’ Harvard Law Review Forum 129: 158–65. https://​harvardlawreview​.org/​wp​-content/​uploads/​2016/​02/​vol129​_Gardbaum​.pdf. Gildenhuys, L. (2020). ‘Esoteric decision-making: Judicial responses to the judicialisation of politics, the Constitutional Court and EFF II,’ South African Journal on Human Rights 36: 338–61. https://​doi​.org/​ 10​.1080/​02587203​.2021​.1932566. Helfer, L.R. ‘Populism and International Human Rights Law Institutions: A Survival Guide’ in G.L. Neuman (ed) Human Rights in a Time of Populism (Cambridge University Press, 2020) 218–49. Hoexter, C. (1994). ‘Administrative Justice and Dishonesty,’ South African Law Journal 111: 700‒19. Huq, A.Z. (2018). ‘What is Discriminatory Intent?,’ Cornell Law Review 103: 83. Issacharoff, S. & R.H. Pildes. (1998). ‘Politics As Markets: Partisan Lockups of the Democratic Process,’ Stanford Law Review 50: 643–717. https://​doi​.org/​10​.2307/​1229320. Issacharoff, S. (2013). ‘The democratic risk to democratic transitions. Constitutional Court Review,’ 5: 1–31. https://​doi​.org/​10​.2989/​CCR​.2013​.0001. Jakli, L. & M. Stenberg. (2021). ‘Everyday illiberalism: How Hungarian subnational politics propel single-party dominance,’ Governance 34: 315–34. https://​doi​.org/​10​.1111/​gove​.12497. Kang, M. (2017). ‘Gerrymandering and the Constitutional Norm Against Government Partisanship,’ MLR 351. https://​doi​.org/​10​.36644/​mlr​.116​.3​.gerrymandering. Kent, M. & B. Denning. (2014). ‘Anti-Anti-Evasion in Constitutional Law,’ Fla St U L Rev 41: 397. Krüger, R. (2015). ‘The Ebb and Flow of the Separation of Powers in South African Constitutional Law – the Glenister Litigation Campaign. Verfassung und Recht in Übersee / Law and Politics in Africa,’ Asia and Latin America 48: 49–64. Landau, J. (2019). ‘Process Scrutiny: Motivational Inquiry and Constitutional Rights,’ Columbia Law Review 119: 2147–2204. Landau, J. (2020). ‘Broken Records: Reconceptualizing Rational Basis Review to Address “Alternative Facts” in the Legislative Process,’ Vanderbilt Law Review 73: 425–78. Leloup, M. (2021). The ECtHR Steps into the Ring. Verfassungsblog: On Matters Constitutional. https://​ doi​.org/​10​.17176/​20210510–181420–0. Levitt, J. (1993). ‘Intent Is Enough: Invidious Partisanship in Redistricting,’ Wm. & Mary L. Rev. 59: 1993. https://​scholarship​.law​.wm​.edu/​wmlr/​vol59/​iss5/​12. Linde, H. (1975). ‘Due Process of Lawmaking,’ Nebraska Law Review 55: 197. Lukina, A. ‘The Problem of Evil Law’ in D. Kochenov & M. Tushnet (eds) Research Handbook on the Politics of Constitutional Law (Routledge, 2023). Nelson, C. (2008). ‘Judicial Review of Legislative Purpose,’ New York University Law Review 83: 1784–1882. Pech, L. & D. Kochenov. (2021). Respect for the rule of law in the case law of the European Court of Justice: a casebook overview of key judgments since the Portuguese judges case. Swedish Institute for European Policy Studies (SIEPS), Stockholm. Pozen, D.E. (2016). ‘Constitutional Bad Faith,’ Harv. L. Rev. 129: 885–955. https://​scholarship​.law​ .columbia​.edu/​faculty​_scholarship/​769 Roux, T. (2009). ‘Principle and pragmatism on the Constitutional Court of South Africa,’ International Journal of Constitutional Law 7: 106–38. https://​doi​.org/​10​.1093/​icon/​mon029.

466  Research handbook on the politics of constitutional law Sajó, A. (2019). ‘The Rule of Law as Legal Despotism: Concerned Remarks on the Use of “Rule of Law” in Illiberal Democracies,’ Hague J Rule Law 11: 371–76. https://​doi​.org/​10​.1007/​s40803–019–00097​ -z. Sajó, A. Ruling by Cheating: Governance in Illiberal Democracy (Cambridge University Press, 2021). Scheppele, K.L. (2013). ‘The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work: Commentary,’ Governance 26: 559–62. https://​doi​.org/​10​.1111/​gove​.12049. Scheppele, K. (2018). ‘Autocratic Legalism,’ University of Chicago Law Review 85(4): 545–83. https://​ lawreview​.uchicago​.edu/​publication/​autocratic​-legalism. Seinfeld, G. (2002). ‘The Possibility of Pretext Analysis in Commerce Clause Adjudication,’ Notre Dame L Rev 78: 1251–1328. Shaw, K. (2019). ‘Speech, Intent, and the President,’ Cornell L. Rev. 104: 1337. https://​scholarship​.law​ .cornell​.edu/​clr/​vol104/​iss5/​4. Stenberg, M, P. Rocco & S.A. Farole. (2022). ‘Calling in “Sick”: COVID-19, Opportunism, Pretext, and Subnational Autocratization,’ Global Studies Quarterly 2:ksac017. https://​doi​.org/​10​.1093/​isagsq/​ ksac017. Tan, F. (2018). ‘The Dawn of Article 18 ECHR: A Safeguard Against European Rule of Law Backsliding?,’ Goettingen Journal of International Law 9(1): 33 https://​doi​.org/​10​.3249/​1868–1581–9​ -1​-TAN. Tsampi, A. (2020). ‘The new doctrine on misuse of power under Article 18 ECHR: Is it about the system of contre-pouvoirs within the State after all?,’ Netherlands Quarterly of Human Rights 38: 134–55. https://​doi​.org/​10​.1177/​0924051920923606. Tuovinen, J. (2013). ‘What to do with international law? Three flaws in Glenister,’ Constitutional Court Review 5: 435–49. https://​doi​.org/​10​.2989/​CCR​.2013​.0020. Tushnet, M. (1989). ‘Principles, politics, and constitutional law,’ Michigan Law Review 88: 49–81. Tushnet, M. (1990). ‘Law, Politics, and Theory of Federal Courts: A Comment,’ Nw U L Rev 85: 454–64 Tushnet, M. (2015). ‘Preserving Judicial Independence in Dominant Party States,’ NY L Sch L Rev 60: 107. Uitz, R. (2019). ‘The Rule of Law at Risk: What is Next?,’ Hague J Rule Law 11: 473–78. https://​doi​ .org/​10​.1007/​s40803–019–00130–1. Venice Commission (2017) Turkey – Opinion on the Provisions of the Emergency Decree-Law N° 674 of 1 September 2016 which concern the exercise of Local Democracy. https://​www​.venice​.coe​.int/​ webforms/​documents/​default​.aspx​?pdffile​=​CDL​-AD(2017)021​-e. Yoshino, K. (2011). ‘The New Equal Protection,’ Harv. L. Rev. 124: 747. https://​harvardlawreview​.org/​ 2011/​01/​the​-new​-equal​-protection/​.

26. The constitutional politics of religion Ioanna Tourkochoriti

States around the world have followed various approaches to regulating the tensions among religious groups in their midst. The politics of handling religious diversity have led to various approaches of constitutional significance. These approaches have been guided both by principles and by attempts to affect social power dynamics. Some of these approaches involve constitutional entrenchment, while others involve evolutions which have taken place through other means. These evolutions also have constitutional importance because they affect the very understanding of the relationships between the state and religion. States that have attempted to separate religion and the state, follow various models, some more successful than others. There are also various models of states that maintain a dominant religion or establishment.1 Some Asian states that suffer from intense religious conflict, and that maintain preferred religions have included references to harmony in their constitutional texts in an attempt to manage these conflicts. These references have not necessarily led to appeasing religious conflict. They have rather led to changing the arena where religious conflict manifests itself – from the streets and political arenas into the courts. States have developed normative standards in this area that reflect their own cultural and social values. The idea of secularism refers in the area of constitutionalism to the need to separate the institutions of the state from the institutions of the church. This political evolution was the result of a broader change in worldview. It is associated with the absence of reference to religion as an interpretive scheme of the origins and the direction of the world.2 It is associated with redefining the structure of the state and ‘the economy of the social bond’3 without a reference to religion. It is also associated with the latent understanding of the relationship between religiosity and life dominant in one part of the world: the distinction between the forum internum and the forum externum.4 On the basis of this distinction, it is possible to distinguish between religious faith and relevant activities and to practice the latter in the private sphere, the sphere which is legally indifferent to the state. This distinction entails that the state constantly defines what is religious and what is not, what is to be relegated to the private sphere and what is to be regulated in the public sphere. Further, this distinction is possible in some parts of the world and it is associated with a conception of public order that dictates manifesting religiosity in the public sphere. In other parts of the world, where religion is the dominant normative system for social interaction, a dominant religious group defines the normative standards in the state, independently of whether its existence is recognised in constitutional texts and despite the attempts by states to harmonise the coexistence between religious groups. The role of religion in defining normative standards has historically been so important, that even where states attempt to limit it in the private sphere it always emerges 3 4 1 2

For an analysis of the various models of establishments see Hirschl (2010). Taylor (2007). Gauchet (1998), 11. Mahmood & Danchin (2014), 129.

467

468  Research handbook on the politics of constitutional law unconsciously in public. This is due to the importance of religion as factor that ensures allegiance to a community, as Durkheim emphasised. It is also due to the importance of religion as an element that defines national identity in numerous states around the world. Attempts to separate a public and a private sphere have their limits, to the extent that the standards of permissible behaviour are formed under the influence of many cultural factors, among which are the membership of a religious group. Secularism has taken many forms all around the world. In some states it was imposed by governments from the bottom to the top. In others, it emerged within civil society and was associated with a conception of equal negative liberty for all religious groups. Different political philosophies on the role of the government have legitimised a variety of government action in implementing secularism. Secularism has been associated with neutrality, the idea that the government should be neutral towards various religious groups and should abstain from advantaging or disadvantaging any of them. Secularism and neutrality towards religion are vague concepts. Their meaning varies depending on context. They reflect various possible versions of liberal constitutionalism. The very realisation of neutrality depends on numerous other value commitments that are predominant in a state and on government priorities.5 They also depend on the understanding of the role of the government itself. Similarly, neutrality towards religion can be understood in many ways. It is context dependent. Some conceptions can lead to policies that discriminate indirectly against religion. For example, in France, it is understood as the need to eliminate the manifestation of religion in the public sphere. In America, the dominant conception of neutrality allows the manifestation of religious beliefs. Some other states like Canada, adopt an intermediate position. Neutrality there is associated with allowing the federal states to define their own policies in this area which are influenced mostly by France or by the United States. States which enforced secularism upon a profoundly religious civil society have faced backlashes. The return of religiosity takes forms which affect institutional developments in areas prima facie not related to religion. Turkey, for example, despite attempts to forcefully impose secularism, saw the return of religion in other institutional forms. France, which eliminated religiosity from the public sphere, sees the return of religiosity in the social standards of the majority religious community which define the very attitude of secularism that the state should follow. The constitutional politics of religion is defined in many parts of the world in relation to historical circumstances. Dominant ex ante understandings on the role of the state to intervene in religious matters have also played an important role. The relationship between church and state has been formed in interaction with local social and political needs. Secularism was imposed either as a negation of religion or as allowing religion to flourish. In some states secularism was imposed from the top to the bottom. In some others it emerged from the bottom to the top. A characteristic example of the first type of states is France. In France, neutrality was imposed by the state in the form of eliminating the manifestation of religion in the public sphere. In the United States, it emerged from the needs of society itself. In France, the idea of laicité, is understood as legitimising government intervention to intervene even upon the way citizens dress in the public sphere. Delicate issues which emerge in relation to the constitutional politics of religion involve accommodating religion and in general handling religious exemptions to laws of general applicability. Asian states that have experienced intense religious conflict, 5 For an analysis of the concept of neutrality and the differences in its understanding depending on context see Tourkochoriti (forthcoming, 2021).

The constitutional politics of religion  469 attempt to resolve them by constitutionalising the principle of social harmony. Its institutionalisation has rendered courts the arena where religious conflicts manifest themselves. This chapter provides an interpretive approach to the constitutional politics. It discusses how ideas rooted in the deep history of the meaning of religion affect the arrangements between states and religious groups around the world. The approaches to religion in several European states are related to their efforts to ensure a separation between the church and the state, institutions which were previously mixed. Arrangements between the state and religion are inevitably affected by the content and the beliefs of the religious groups at stake within each state. In states where the idea of harmony is included in the constitution, align with Bourdieu’s characterisation of the law as foreclosing politics,6 as discussed in the introduction to this volume. The evolution of the law in this area though shows how difficult it might be to capture social evolution through crystallising an ideal in a social text. The enactment of the principle led to shifting the locus of social disagreement from civil society to the institutions of the state. The analysis of this chapter is in the same spirit as the one by Tokujin Matsudaira on how Japan-specific factors have shaped the politics of constitutional amendment there. It also approximates Adam Chilton’s and Mila Versteeg’s who discuss how political consideration shape the adoption and enforcement of constitutional rights in several jurisdictions.

1.

VARIETIES OF SECULARISM AND THEIR SHORTCOMINGS

In many European states medieval religious institutions provided the model of organisation of the state. This is the case because historically the structures that evolved into the administrative institutions of the state were maintained by the dominant churches. State institutions emerged by the separation from religious institutions. John Strayer suggests that the French state has its origins in the medieval formation of the same space created by a mosaic of communities to assure its defence and security from foreign enemies.7 Carl Schmitt and Böckenforde noted that the significant concepts of the theory of the modern State are secularised theological con-

Pierre Bourdieu (1987). The Force of Law: Toward a Sociology of the Juridical Field. According to Strayer (1970), it is difficult to discover the ideas and events which animated the processes of construction of the State in Western Europe towards the end of the eleventh century. Diffusion of Christianity can be one factor, as the Church had many of the attributes of the State, like durable institutions and developed others such as a theory of sovereignty of the papacy. As agents of the church were profoundly involved in secular politics and rulers needed their advice and support, political theories and administrative techniques of the Church had a direct impact on the government. The church taught that secular rulers were attributing justice to their subjects, doctrine which imposed the creation of new judiciary and administrative institutions. Tocqueville analyses the alliance between church and secular power: the church progressively ‘after having been superior to them, then their equal, was reduced to being their client; some kind of exchange was established between them and the church. They were lending the church their material force, and it was lending them its moral authority; they were assuring obedience to the church’s precepts, it was making their will respectable,’ de Tocqueville ([1856] 1967), 246. Another factor was the gradual stabilisation of Europe and the end of migration, invasion and conquest on the level of the States and the local level; the nobility settled in specific places instead of wandering, looking for power and plundering. The rulers of kingships or principalities had the opportunities and motivations to develop permanent institutions, to assure their power, increase their income and improve their chances to transmit their power and possessions to their heirs, Strayer (1970), 16–17. 6 7

470  Research handbook on the politics of constitutional law cepts.8 This is due to their historical development, their transfer from theology to the theory of state where the omnipotent legislator became the substitute for the omnipotent God, and to their structure, the need to found the duty to obey the precepts of the law. For the political theology of Middle Ages, the king was the physical mortal agent of God and at the same time the representative of an immortal mystic entity; he was Rex and Sacerdos.9 Ernst Kantorowicz has shown how the entanglement between the metaphysical elements and the officium of the king contributed to the stabilisation of his authority.10 The State was compared to a corpus morale et politicum against the corpus mysticum et spirituale of the Church.11 This has meant that the state always has had an important role in defining the relationship between itself and religious groups. This deep entanglement between religion and the state has meant that its negation took an equally radical form. The French Revolution attempted to eliminate any sign of the previous situation. The French Enlightenment that preceded it was distrustful towards religion, because it overwhelms the rational faculty of humanity.12 This idea in association with a conception of the role of the government as having the mission to protect the citizens from reaching erroneous opinions has led to a conception of laicité as eliminating religion from the public sphere.13 As Hegel made us conscious of, the negation of a phenomenon leads frequently to a reproduction of its logic.14 State Secularism was imposed from the top to the bottom and this has led to the manifestation of religion through the back door, despite state attempts for it to vanish.15 The Restoration Church recognised officially anew the Catholic Church. It was the law of 1905 enacted during the Third Republic which brought about the separation of church and state by abolishing the public status of churches.16 The same law ended public funding for the churches, a principle confirmed in the French Constitution of 1946 and of 1958. In other states, secularism emerged from the bottom to the top. In the United States, since the founding era, the diversity of civil society meant that it would not be advisable for political institutions to give advantages to any of the various religious groups. Madison famously noted that the multiplicity of religious sects was itself a guarantee for religious liberty, because no majority could emerge out of this variety, which could ‘oppress and persecute the rest’.17 The multiplicity of sects, as well as the multiplicity of interests, would ensure that no section of the population would oppress others. This variety within civil society would be reflected in a federal government which would represent all interests and which would operate on the basis of various checks and balances.18 Schmitt (1967), 36. See also Schmitt (1996), 42; Böckenforde (2000), 114. Hinsley (1966), 64. 10 Kantorowicz ([1957] 1997), 9. 11 Lucas de Penna was a jurist who transferred to the prince and to the State the most important social, organic and corporation elements which served normally to explain the relations between Christ and the Church, in Commentaria in Tres Libros Codicis. Lyon, 1597. Ibid, 218. 12 See Voltaire (1912). 13 See Tourkochoriti (2021). 14 Hegel (2001). 15 See Tourkochoriti (2012). 16 See Bauberot (2005), 73. 17 James Madison, in Elliott (1987), 330. For an analysis of freedom of religion in relation to the minority – majority dynamic and its importance for the American conception of the role of the government see Feldman (2005), 49. 18 McConnell (1990). 8 9



The constitutional politics of religion  471 These different origins of secularism have led to different attitudes in the understanding of the positive obligations of the state dictated by neutrality. In the United States, neutrality means that all religious groups enjoy equal negative liberty. Religiosity can be manifested in the public sphere, while the government should not give religious speech preferential access to public places. Public displays of religious symbols by religious communities such as creches in public property during Christmas are not considered incompatible with the dominant understanding of neutrality unless government institutions appear to endorse their Christian message.19 Private speakers must be given equal access to the public sphere in order not to violate the non-endorsement of religion principle.20 The practice of prayers at the opening of public bodies’ meetings is not seen as incompatible with the principle of disestablishment if they do not denigrate or proselytise.21 They accommodate the spiritual needs of the members of these bodies. Their permissibility is associated with the idea that ‘people of many faiths may be united in a community of tolerance and devotion, even if they disagree as to religious doctrine’.22 Public financial support to students attending private religious schools is also acceptable under this model of secularism.23 Government policies of accommodation, acknowledgment and support for religion are an accepted part of the United States’s ‘political and cultural heritage’ and the relevant constitutional clauses are seen as permitting government ‘some latitude in recognising the central role of religion in society’.24 In the area of religious dress there is consensus in the United States in favour of providing a ‘reasonable accommodation’ to employees provided that there is no undue hardship to the employer.25 Employers in the private and public sector have an affirmative duty to provide an accommodation to their employees, which requires them to do more than simply not discriminate.26 The US Supreme Court has reaffirmed this obligation.27 The Supreme Court held that a refusal to hire a person because the headscarf she wore pursuant to her religious obligations conflicted with the employer’s neutral dress policy violates the Title VII disparate treatment (direct discrimination) provision. Under Title VII of the US Civil Rights Act of 1964 employers are obliged to reasonably accommodate to ‘a religious observance or practice’ unless they are able to prove that there would be undue hardship on the employer in conducting her business.28 The rights of government employees are protected more strictly compared to employees in the private sector, because government employees are protected by the First Amendment to the Federal Constitution as well as by Title VII’s antidiscrimination provisions. Postings of religious symbols in public schools are not acceptable though as they are in tension with the idea of neutrality as understood in the

County of Allegheny v. ACLU, 492 US 573 (1989). Capitol Square Review Bd v. Pinette (1995). 21 Marsh v. Chambers, 463 US 783 (1983) (related to the opening of the Nebraska Legislature with a prayer); Town of Greece v. Galloway, 572 US 565 (2014) (related to a municipal town board meeting with a prayer). 22 Ibid. 23 Espinoza v. Montana Dept of Revenue, 140 SCt 2246 (2020). 24 County of Allegheny v. ACLU, at 672 (Justice Kennedy’s opinion concurring in part and dissenting in part). 25 42 USC § 2000e(j). 26 See Rutherglen & Donohue, 508. 27 EEOC v. Abercrombie & Fitch Stores Inc, 575 US 1 (2015). 28 42 USC §2000e(j). 19 20

472  Research handbook on the politics of constitutional law United States.29 The protection of the autonomy of the churches in the United States goes as far as not enforcing antidiscrimination legislation (legislation of general applicability) upon private religious institutions.30 In France, secularism means that manifestations of religion in the public sphere are to be avoided. It also means that there are to be limits upon the freedom of the citizens as well. In 2004, France banned the wearing of the hijab in public schools31 and in 2012 the wearing of the burqa in public places.32 Employees in the public sector are not allowed to wear signs of religious affiliation in the workplace. Courts have not been very favourable to allowing employees in the private sector either to manifest their religion in the workplace.33 Cases originating in France on headscarves in the workplace gave the opportunity to the Court of Justice of the European Union to articulate a rule that allows employers even in the private sector to require employees to remove signs of religious affiliation based on ‘an internal policy of political, philosophical or religious neutrality set by the employer’.34 The French Cour de Cassation, where one of these cases originated, following the CJEU preliminary judgment, opted for a solution that enhances segregation and hides the manifestation of beliefs from the public sphere.35 The decisions of the CJEU and of the French Cour de Cassation raise concerns because a policy based on neutrality understood as prohibiting the manifestation of religion can affect disproportionately religious minorities.36 It can constitute indirect discrimination against minority religious groups. Facial neutrality can be nonneutral in impact. Because our standards of interaction are formed under the influence of many cultural factors, and an empirically dominant religion is one of these factors, attempts to separate the state and religion are bound to fail. The standards of interaction of the dominant social group will dominate those of minority social groups. The relative cultural homogeneity that exists in Europe and other European states has led to losing sight of the religious origins of the standards of social interaction. If the understanding of neutrality is formed under the majority cultural standards on the basis of which it is possible to distinguish between the forum internum and the forum externum, the relevant policies have a disparate impact upon religious groups for which this distinction is not possible.

Stone v. Graham, 449 US 39 (1980). Hosanna-Tabor Evangelical Lutheran Church and Sch v. EEOC, 132 SCt 694 (2012). 31 Loi 2004–228 du 15 mars 2004, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics [Law 2004–228 of March 15, 2004 regulating, in accordance with the principle of secularism, the wearing of symbols or clothing denoting religious affiliation in schools and high schools], Journal Officiel De La République Française [J.O.] [Official Gazette Of France], Mar. 17, 2004, p. 5190. 32 Loi 2010–1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public [Law 2010–1192 of October 11, 2010 prohibiting the concealment of the face in public], Journal Officiel De La République Française [J.O.] [Official Gazette Of France], Oct. 11, 2010, p. 18344. 33 See Cour de Cassation, Arrët du 25 juin 2014 (13–28.369); Hennette-Vauchez & Valentin (2015); Hennette-Vauchez (2017). 34 C-188/15, Bougnaoui ADDH v. Micropole SA, 2017, C-157/15, Achbita v. G4S Secure Solutions NV, 2017 (C-157/15 Achbita, Centrom voor galijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV, Arrêt n° 630 du 9 avril 2015 (13–19.855). 35 Decision n. 2484 of 22 November 2017 (13–19.855) – Cour de Cassation – Chambre sociale. See s 26.3. 36 See Tourkochoriti (forthcoming, 2021). 29 30

The constitutional politics of religion  473 Canada’s approach to religion is interesting because it is in between that of the United States and that of France. It has never been strictly separationist or non-establishment. Its earliest constitutional documents brought an equilibrium between the rights of French and English communities and their constitutive religious identities.37 These rights included denominational education rights in Canada’s first written Constitution, the British North America Act 1867, which persist. In Quebec, the Quiet Revolution of the 1960s led to a repositioning of the Catholic Church. With the introduction of the Charter of Rights and Freedoms in 1982, freedom of conscience has been one of these freedoms which indicate the challenges, politics, and paradoxes of constitutionalism.38 In the pre-Charter jurisprudence, freedom of religion featured as a ‘primary condition’ of community life, whereas the post-Charter jurisprudence emphasises the individual and her personal religious freedom. The collective elements are associated with the individual. For example, the Canadian Supreme Court has recognised the ‘collective aspects of religious freedom’, ‘the collective manifestation and transmission of Catholic beliefs through a private denominational school’.39 The case law on freedom of religion in Canada indicates a shift from notions of toleration towards a principle of state neutrality.40 This shift goes together with an increased awareness of its instability. The Canadian Supreme Court has held that a local practice of opening municipal council meetings with a Christian prayer was contrary to the duty of state neutrality.41 Government enforcement of secularism and neutrality is accepted with limits in Canada. Canadian courts are willing to enforce antidiscrimination legislation upon private religious institutions, unlike what is the case in the United States. Law societies may refuse accreditation to religious Universities whose codes of conduct discriminate against LGBT students.42 It is ‘reasonable’ for Law Societies ‘to promote equal access to the legal profession’, ‘to support diversity within the bar and prevent harm to LGBTQ Law students’43. In the area of religious dress, where the legal regimes of other states seem to be imbalanced favouring one side of the equation, Canadian courts have succeeded in offering criteria which meet the needs of both sides. In R. v. N.S.,44 a case concerning a sexual assault complainant who sought to wear a niqab while giving testimony at a preliminary inquiry, the court attempted to accommodate the rights of the accused with the rights of the victim not to experience distress. It stated that religion is not to be banned from the courtroom, while the connection between seeing a witness’s face and trial fairness is not to be overlooked either. ‘The answer lies in a just and proportionate balance between freedom of religion […] and trial fairness’.45 Judges should evaluate on a case-by-case basis whether the niqab should be removed because wearing it poses a risk to trial fairness and whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so. Courts should evaluate the broader societal harm of discouraging the reporting of sexual assault offences.

39 40 41 42 43 44 45 37 38

Berger (2018), 112; see also Berger (2015). Berger (2018), 112. Loyola High School v. Quebec (Attorney General), 2015 SCC 12. Berger (2018), 116. Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16. Law Society of British Columbia v. Trinity Western University, 2018 SCC 32. Ibid, 298. 2012 SCC 72. Ibid, § 31.

474  Research handbook on the politics of constitutional law The area of religious dress is the one where in Canada the tension between the different approaches of the various religious communities is obvious. Unlike in the United States where the state recognises the same negative liberty to all religious groups and in France where the wearing of conspicuous religious symbols is limited in various areas of the public sphere, in Canada the preferred approach varies in each one of the states. Quebec, which is predominantly under the influence of France, enacted legislation ‘Respecting the Laicity of the State’ imposing a strict separation of church and state. According to this conception, religious neutrality means that religious expression is eliminated from the halls of government and related bodies. The law prohibits the wearing of religious symbols by government and government-affiliated employees. As a rule, students are allowed in Canada to wear signs of religious affiliation at school on the basis of the Supreme Court case law.46 In Canada, freedom of religion has also been the terrain of manifestation of the tension between the claims of Indigenous communities and those of the Canadian state. In the early colonial project, religious missionaries played a crucial role, extending state power and aligning with Indigenous communities in advocating for the recognition of aboriginal rights and sovereignty. Later, the Canadian state worked with the churches aiming to suppress the cultural differences of Indigenous communities. A case which renewed this tension relates to objections by Indigenous communities to the Canadian government’s approval of a large resort development project in a region of British Columbia.47 The community argued that the development would impair their religious beliefs and practices, given the connection between Indigenous religion and the land. The Supreme Court of Canada dismissed the claim, holding that the Charter protects freedom but not ‘the spiritual focal point of worship’.48 This case related to the status of land and the sovereignty claim over it, which has been the core of disputes between the Canadian state and Indigenous peoples. The decision overlooks the tension between these elements by focusing on the religious elements in the case. States that have imposed secularism upon a profoundly religious civil society have been experiencing a backlash of religiosity which has also found its way into the politics of religion. Turkey is an interesting example of state enforced secularism that led to a backlash within civil society. Since 1928, a regime of strict separation of church and state applies in an attempt to ensure peaceful coexistence among a predominantly Muslim community and some smaller minorities. Since its inception, the version of secularism that applied in Turkey aimed to exclude the domain of politics for religion, while enabling intrusive policies in the area of religious education by producing a state sanctioned orthodoxy on Islam to the detriment of minority religious groups.49 In 1937, the terms ‘republican, popular, atheist, secular and reformist’ were inserted in the Turkish Constitution. Although the current constitution of 1982 foresees a state policy of secularism, in recent years there has been an increase in popularity of pro-Islamic political parties. Majority politics has led to a transformation of constitutional significance overlooking social divisions, accentuating political polarisation and weakening guarantees of freedom. This rise, in association with constitutional amendments towards

Multani v. Commission Scolaire Marguerite-Bourgeoys, 2006 SCC 6. Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54. 48 Ibid, para 71. 49 Bali & Lerner (2016), 282. 46 47

The constitutional politics of religion  475 replacing a parliamentary system of government with a presidential system, are seen as having the potential to lead to changes that will facilitate the Islamicisation of the constitutional order.50 In states where Buddhism predominates such as Thailand, Myanmar and Sri Lanka, the western distinction between a set of beliefs and practices distinct from the ‘secular’ worlds of politics, economics, culture, is not relevant. Buddha’s legacy is considered to include values, teachings related to education, imagery which have a ‘wider footprint’ in society in a way that cannot be captured by the separation between religion and the state.51 In Thailand, according to the traditional Buddhist narrative on the dissemination of Buddha’s teachings, modern constitutionalism is the latest iteration of the forms of polities where Buddhism should be protected.52 In Buddhism’s case both bottom-up and top-down approaches are relevant. Civil society developments and elite institutional design are equally important. Thailand’s constitution does not recognise Buddhism as a state religion. Nevertheless, Buddhism has informed and continues to inform constitutional thought and practices.53 In fact, the doctrine of the Buddhist Kingship is not very far from the doctrine of kingship dominant in medieval Europe. The primary duty of the Kings has been to teach and uphold the Buddhist teachings. A version of these teachings, the dhammaraja doctrine, became part of dominant constitutional thought proper during the 1960s and 1970s. Buddhism informs the Thai understandings of constitutional identity and the King himself is not bound by the constitution but by the religious doctrine. The very discourse of the state’s Constitutional Court reflects the same mentality. The same Court has upheld the constitutionality of a lèse majesté law in reference to the idea that the King is ‘the heart and inviolable soul of Thai people’ who reigns in accordance with the principles of Buddhist virtue.54 Legal scholars have equated defamation of the King to the ‘blasphemy’ of the Buddha.55 Buddhism has permeated the understanding of constitutionalism and has influenced the formation of rules held to be of constitutional significance.

2.

VARIETIES OF ESTABLISHMENT

Just as the separation of church and state has taken various forms depending on local circumstances, established churches also have various forms and constitutional significance in various parts of the world. Even some states, which identify as religious, recognise spheres of activity which are exempt from the application of religious law. States as varied as Afganistan, Iraq, Qatar and Saudi Arabia are theocratic. The latter excludes areas of economic life from the application of religious law. Many established churches have a weak form. These states identify a dominant religion which creates some tension with religious minorities, while at the same time religion’s influence upon the constitutional life is waning. The constitutions of some of these states include a reference to religion as defining their identity together with clauses expressing the idea of equality against discrimination on the grounds of religion.

Ibid, 285. Schonthal (2018). 52 Ibid, 251. 53 Mérieaux (2018), 286. 54 Constitutional Court of Thailand, Decision 28–29/2555 (10 October 2012). 55 Bowornsak Uwanno. Lèse majesté: A Distinctive Character of Thai Democracy amidst the Global Democratic Movement (KPI, 2009) 34, cited by Mérieaux (2018), 303. 50 51

476  Research handbook on the politics of constitutional law Whether minority religious groups enjoy equal religious freedom depends on the interpretation of the relevant clauses by the local enforcement authorities. Saudi Arabia is a state that identifies as an Islamic state.56 This identity has important implications for the organisation of the state and the very understanding of the rule of law. Among the various Islamic doctrines, one version is dictated to the citizens by the state as official. The Saudi state deploys important ideological mechanisms in this respect.57 The Saudi constitution foresees that the King is ‘to rule the nation according to the Sharia’58 and the judges themselves are under ‘the authority of Islamic Sharia’. Obedience to the absolute authority of the king is foreseen as part of a religious duty.59 The office of the King in contemporary Saudi Arabia is invested with the mysticism of the medieval monarchy in Europe, to the extent that the King is seen as having divine authority. Basic primary education indoctrinates and encourages animosity towards other religious groups.60 The state encourages religiosity and its preferred type of religiosity, based on which discrimination against women widely applies in various areas of law. There is no codified personal status law, which gives judges discretion in this area to opt for a legal regime that discriminates against women on family matters. The Ministry of Justice recommends religious texts for courts to follow in the area of personal relationships which empower men over women.61 Obligatory dress code applies to women, who are considered to be under the guardianship of their male relatives or marital partners. Although Saudi Arabia maintains a strict religious regime, some sectors of the economy, the finance, banking and corporate capital sectors are exempt from the application of religious law. Egypt is a state with religious conflict which maintains a reference to the Islamic Sharia as ‘a principal source of legislation’.62 In Egypt, this reference means that one faction’s preferred religious vision of the state imposes substantive constraints on constitutional interpretation.63 Egyptian courts have refused to extend formal recognition to minority religious groups, like the Bahai, referring to a supposed singular and unified interpretation of the sharia regarding the status of non-Abrahamic religions within a Muslim polity.64 This confers broad authority on courts to decide on religious matters in a way that seeks to reconcile existing secular laws with the ‘goals of the sharia’.65 On the basis of this mentality, Egyptian courts have held that limitations to the manifestation of religion of the Bahai are acceptable because it contradicts Islam, which defines the basis of the nation’s social order as a majority religion.66 Tunisia’s constitution refers to Islam as an established religion. Nevertheless, Sharia is not referenced in the same constitution, which means that its influence is limited.

Article 1 of the Saudi Basic Law (1993). Al Haidari (2021). 58 Article 55, Saudi Arabian Basic Law of Governance, Royal Decree No. A/90 Article 9 March 1992. 59 Article 6, Saudi Arabian Basic Law of Governance. 60 Al Haidari (2021), 98. 61 Kashaf al-Quenaa, cited in Al Haidari. No Compulsions in Religion (2021), 98. 62 Egyptian Constitution Article 2. 63 Bali & Lerner (2016), 291. 64 Mahmood & Danchin (2014), 134. 65 Lombardi (2006), 180. 66 Case 18534 of the fifty-eighth judicial year, issued on January 29, 2008 by the lower Administrative Court of Justice. 56 57

The constitutional politics of religion  477 Some European states like Norway, Denmark, Finland and Iceland maintain weak establishments. In Greece, which maintains a weak establishment, the clauses in the Constitution protecting freedom of religion and equality are not always interpreted in a way that balances out the existence of an establishment.67 Classes on religious education in public schools aim to enhance the knowledge of the doctrine of the dominant religion, an issue that has caused tension with students-members of religious minorities.68 Offence to the majority religion frequently leads to limiting expressive rights.69 Greece has been found by the European Court of Human Rights to be in violation of Article 9 of the European Convention on Human Rights protecting freedom of religion for an expanded interpretation of proselytism which led to the prosecution of a member of a minority religious group (Jehovah’s Witnesses).70 The Greek government associated the protection of the public order with the religious identity of the majority of the Greek population, Eastern Orthodoxy. The European Court of Human Rights rejected this argument emphasising the dangers of discrimination inherent in any majority conception of the good. Even after the decision by the European Court of Human Rights, local authorities keep limiting expressive rights for minority religious groups.71 In Greece, where a majority religion defines the standards of social interaction, issues related to discrimination against minority religious groups persist.

3.

IS ‘HARMONY’ POSSIBLE?

States suffering from religious division have constitutionalised the idea of harmony. Some Asian states, including India, Malaysia, Sri Lanka, Bangladesh, and Singapore, have included the reference in their constitutions. Depending on the underlying philosophy on the role of the state, the reference to the idea of harmony legitimates state action and may even result in the control of marginalised religious groups.72 The reference to harmony as expressing the public interest in these states has served as a limit to the constitutional rights of minority religious groups. It is interpreted as part of public order limitations upon freedom. In Singapore, for example, it has served to justify state prohibition of the headscarf by students in public schools and in some public sector jobs. It is framed as part of mutual obligations among religious groups not to manifest their religious beliefs aggressively, because this would lead others to counterclaim greater rights, threatening in return everyone’s rights.73 Terms as malleable as ‘harmony’ may be used to legitimise coercive state ideologies.74 In parallel, thanks to the expressive function of the law, they serve as defining the normative standards of interaction between religious groups.75

69 70 71 72 73 74 75 67 68

The Greek Ombudsman. The Greek Ombudsman, case 2908/18.2.2005. The Greek Ombudsman, case 1546/28.1.2004. Kokkinakis v. Greece, (14307/88) [1993] ECHR 20 (25 May 1993). The Greek Ombudsman, 5910/14.04.2006. Neo (2019), 968. Ibid, 977. Ibid, 978, citing Nader (2004), 254. Ibid, 981.

478  Research handbook on the politics of constitutional law In states with intense religious divisions, attempts to constitutionalise the relevant arrangements aim to prevent disputes being fought out in extra-legal fora.76 Including relevant provisions in constitutional texts may be of limited effectiveness in this respect: written constitutional provisions may develop in ways unforeseen or undesired by their initial designers. In Sri Lanka for example, the Constitution contains a reference to Buddhism, the majority religion, as having a privileged status, while other religious groups enjoy freedom of religion as well. This attempt responded to an idealisation of a precolonial past and occurred in other former British colonies (Malaysia, Bangladesh, Brunei). It aimed to mediate between those who wanted to entrench special prerogatives for Buddhists and those who wanted to ensure equal religious rights. The Constitution was ambiguous in relation to whether Buddhists should have priority over other religious groups and this did not result in transcending intraand inter-religious divisions but in aggravating them. It led to increased intervention of the state in intra-religious and inter-religious disputes through litigation. The outcomes of the cases did not point to a singular approach toward Buddhist privileges. Constitutionalisation framed religious disputes in legal terms and enabled the state to mediate them through courts. It did not appease religious conflicts, it changed the forum of their manifestation. In states whose constitutions affirm one religion as ‘dominant’, institutions and courts have contributed to affirming this preeminent position, despite the reference to harmony. In Malaysia, whose constitution affirms Islam as ‘the religion of the Federation’,77 courts have contributed to affirming a preeminent position for Islam. Commentators have described this movement as a ‘stealth theocracy’, given that the movement towards the predominance of the religious character of the state has taken place due to the operation of legal mechanisms of the state.78 This movement expresses and consolidates the predominance of one religious group, Islam, and its connection to ethnic identity and nationalism. Instead of appeasing religious conflict and political division, this movement has led to reaffirming the predominance of the majority religious group. Courts in Malaysia have used various mechanisms in this respect. First, by refusing jurisdiction in various areas related to constitutional rights including religious liberty, and by deferring cases to religious Sharia courts. The civil courts, by deferring to religious courts cases involving, for example, the conversion out of Islam, have rendered these courts the ‘gatekeepers’ with the power to control an individual’s exit from the religious community.79 They have thus expanded the scope of power of religious courts. Secondly, Malaysian courts have resorted to an expansive reinterpretation of the constitutional clause which recognises Islam as the religion of Malaysia’s Federal Constitution. For example, they have found that regulations prohibiting the wearing of religious dress in schools are unconstitutional in reference to the clauses of the Malaysian Constitution which establishes Islam’s supreme position.80 Despite the reference to peace and harmony the clauses affirming Islam as the religion of the Federation mean that ‘Islam sits at the top’.81 The confiscation of books considered contrary to the dominant religion and the enforcement of criminal legislation against publication, distribution or possession of books deemed contrary to Islamic Law by the state

78 79 80 81 76 77

Neo (2018), reviewing Schontal, Buddhism (2016). Article 3(1) of the Malaysian Constitution. Tew (2018). Lina Joy v. Majlis Agama Islam Wilayah Persekutuan (2007) 4 Malayan L J 585. Meor Atiqlrahman bin Ishak v. Fatimah bte Sihi (2000) 5 Malayan L J 375. Ibid, 375, 377 (Engl. Transl. by Yvonne Tew).

The constitutional politics of religion  479 religious authority, is permissible.82 This judicial affirmation of the dominant religion, through institutional mechanisms, means that courts have contributed to the formation of the collective identity in Malaysia. Sri Lanka’s Constitution includes a reference to harmony together with giving to Buddhism ‘the foremost place’.83 This has enabled the Supreme Court to align the protection of religious practice to the one of the dominant religion.84 Although the Supreme Court has held unconstitutional a bill which sought to make Buddhism the official religion of the state,85 it also ruled that the restriction of minority religious practices that involved noise pollution was permissible, referring to the Buddhist understanding of the proper practice of religious worship.86 Indonesia is another state whose Constitution includes a reference to the fact that ‘the state is based upon belief in one supreme God’.87 The Muslim majority in the state coexists with various other religious groups (Catholics, Protestants, Hindus, Buddhists). Although Islam is not mentioned explicitly as a privileged religion in the Constitution, the Pancasila (five fundamental principles) defines the state ideology. Elements of Islamic jurisprudence related to marriage, divorce, inheritance, trust and gifts have been absorbed into positive law through the decisions of religious courts.88 The state is involved in organising religious pilgrimages and in managing religious obligations which relate to charity donations; it supervises the relevant agencies that collect the funds.89 The Constitutional Court upheld the constitutionality of state intervention in this area affirming Indonesia as a religious welfare state.90 Anti-blasphemy legislation has been used to prosecute members of minority religious groups and Muslim sects seen as ‘deviant’.91 The Constitutional Court referred to the Constitution’s ‘religious values’ in refusing protection for the freedom to promote ideas that are anti-religious or desecrate religious teachings.92 Enforcement of the anti-blasphemy legislation was necessary to protect the principle of harmony.93 India, aiming to appease religious conflict, opted for a constitution that proclaims secularism. This formal declaration aside, religion plays an important role within Indian law. The formal proclamation of secularism has not prevented its Supreme Court from being involved deeply in religious matters advancing the cause of Hindu nationalism.94 The same court has distinguished between integral religious practices that are constitutionally protected and other less established practices that may be banned or reformed. In this way, it brought about a progressive liberal definition of Hinduism which later enabled the ethno-nationalist Hindutva movement to argue that its political agenda was coterminous with the Hindu religion. It refused ZI Publications Sdn Bhd & Anor v. Kerajaan Negeri Selangor (2016) 1 Malayan L J 153. Article 9 of the 1978 Sri Lankan Constitution. 84 See Tew’s analysis (2018), 76. 85 Re Bill titled ‘Nineteenth Amendment to the Constitution’ (SC Special Determination No. 32/2004), 8. 86 Ashik v. Bandula and Others (2007) 1 Sri Lanka L. Rep. 191. 87 Article 29 of the Indonesian Constitution. 88 Alfitri (2018). 89 Ibid, 197–406. 90 Putusan Mahkamah Konstitusi Nomor [Constitutional Court Decision No] 86/PUU-X/2012 (delivered on 31 October 2013108–109. 91 Tew (2018), 73 (further citations omitted). 92 Constitutional Court Decision No 140/PUU-VII/2009, paras 3.34.8–11. 93 Constitutional Court decision No84/PUU-X/2012. 94 Sen (2007), cited in Abeyratne (2018). 82

83

480  Research handbook on the politics of constitutional law to apply legislation prohibiting candidates for political office from appealing to people’s religion, caste, community or language, and from stoking ‘feelings of enmity or hatred between different groups’ from Hindu nationalist parties by equating the term ‘Hindutva’ to ‘the way of life of the people in the subcontinent’.95 Religion plays an important role in defining various areas of law.96 India maintains separate personal law systems for each religious group. Though the Supreme Court has refused to enforce the principle of equality upon religious personal law in reference to the protection of freedom of religion, the increasing ‘Hinduisation’ of public policy was reflected in a 2017 decision holding unconstitutional the practice of the triple talaq regarding dissolution of marriage.97 Religious minorities more generally do not enjoy effective constitutional protection. Legislation designating a group of castes and tribes for appointments in public sector jobs and public universities concerning Hindus, Sikh and Buddhists has been interpreted by the Supreme Court as implying that the members of these communities who convert to Christianity lose their privileges.98 It has also equated Hindu nationalist ideology with the Hindu religion allowing Hindu nationalist dominance. The concern with implementing equality principles between social groups means in India that minority educational institutions cannot be exempt from legislation which requires schools to reserve part of their seats for children belonging to disadvantaged groups in their neighbourhood.99 The constitutional politics of religion consist of attempts all around the world to ensure peaceful coexistence among religious communities. In some parts of the world, states opted for a strict separation of church and state. This separation has taken many forms. In France, it was associated with attempts to eliminate religion from the public sphere. These attempts have not been entirely successful given that religion is a very important cultural influence. It defines social standards of interaction. The understanding of neutrality is dependent on these standards of interaction which are formed under the influence of a dominant religion. In the United States, it was associated with allowing the manifestation of religion. Establishments have also various forms. In some states, religious law defines the law of the state on important areas of law, such as personal status law. Many European establishments are cultural residues. Religion does not affect the law in the state, while minority groups experience discrimination in various areas of social life. In many Asian states, separating religious normativity from state normativity is impossible, because the religious normative standards cover areas of social life which are not amenable to the distinction between the forum internum and the forum externum. The ideas that compose the forum internum are to be manifested in all areas of social life. Many of these states suffer from intense religious conflict. These are states which recognise official religions and others which do not. They have attempted to ensure peaceful coexistence among religious groups through institutionalising the idea of harmony. This institutionalisation has led to the transfer of the relevant disputes before civil courts. Even in states where no official religion exists, the understanding of this idea of harmony is heavily influenced by the majority religious groups.

97 98 99 95 96

Dr Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte (1996) 1 SCC 130, 22. Bali & Lerner (2016), 259. Shayara Bano v. Union of India, (2017) 9 SCC 1 (Supreme Court of India). Superintendent of Post Offices v. Babu (2007) 2 SCC 337. Society for Un-Aided Private Schools of Rajasthan v. Union of India (2012) 6 SCC 1.

The constitutional politics of religion  481

REFERENCES Abeyratne, Rehan Aindri. (2018). ‘Privileging the Powerful: Religion and Constitutional Law in India,’ Asian Journal of Comparative Law 13: 307–31. Al Haidari, Bethany. No Compulsions in Religion, Perceptions of Freedom & Legal Rights Amongst Saudi Arabian Citizens (PhD Dissertation, National University of Ireland Galway School of Law, 2021). Alfitri. (2018). ‘Religion and Constitutional Practices in Indonesia: How Far Should the State Intervene in the Administration of Islam?,’ Asian Journal of Comparative Law 13: 389–413. Bali, Asli & Hanna Lerner. (2016). ‘Constitutional Design without Constitutional Moments: Lessons from Religiously Divided Societies,’ Cornell International Law Journal 49: 282–308. Bauberot, Jean. Histoire de la Laïcité en France (Presses Universitaires de la France, 2005). Berger, Benjamin. (2018). ‘Religious Freedom in Canada, A Crucible for Constitutionalism,’ Quaderni di Diritto E Politica Ecclesiastica 111–25. Berger, Benjamin. Law’s Religion: Religious Difference and the Claims of Constitutionalism, (University of Toronto Press, 2015). Böckenforde, Ernst-Wolfgang. ‘La naissance de l’État, processus de sécularisation,’ in Le Droit, l’État, et la Constitution Démocratique, Fr. (transl. by Olivier Jouanjan, Willy Zimmer § Olivier Beaud, Bruyland L.G.D.J., 2000). de Tocqueville, Alexis. L’Ancien Régime et la Révolution, (Gallimard, [1856] 1967). Durkheim Émile, The Elementary Forms of Religious Life, (Karen E. Fields transl., The Free Press, 1995). Elliot, Jonathan (ed). 3 Debates On The Adoption Of The Federal Constitution (Ayer Co., 1987). Feldman, Noah. Divided by God: America's Church-State Problem – And What We Should Do About It (Farrar Straus & Giroux, 2005). Gauchet, Marcel. La Religion Dans La Démocratie, Parcours De La Laïcité (Gallimard, 1998). Hegel, G.W.F. The Philosophy of History (J. Sibree trans., 2001). Hennette-Vauchez, Stephanie & Vincent Valentin. (2015). ‘L’Affaire Baby-Loup ou la Nouvelle Laïcité,’ Les Cahiers de la Justice 3: 481–84. Hennette-Vauchez, Stéphanie. (2017). ‘Is French Laicité Still Liberal? The Republican Project Under Pressure,’ Human Rights Law Review 17: 285–312. Hinsley, F.H. Sovereignty (C.A. Watts & Co. Ltd., 1966). Hirschl, Ran. Constitutional Theocracy (Harvard University Press, 2010). Kantorowicz, Ernst H. The King’s Two Bodies, A Study in Mediaeval Political Theology (Princeton University Press, 1957). Lombardi, Clark. State Law as Islamic Law in Modern Egypt: The Incorporation of the Sahri’a into Egyptian Constitutional Law (Brill, 2006). Mahmood, Saba & Peter G. Danchin. (2014). ‘Immunity or Regulation? Antinomies of Religious Freedom,’ The South Atlantic Quarterly 113: 129–59. McConnell, Michael W. (1990). ‘The Origins and Historical Understanding of Free Exercise of Religion,’ Harvard Law Review 103: 1409–517. Mérieaux, Eugénie. (2018). ‘Buddhist Constitutionalism in Thailand: When Rajadhamma Supersedes the Constitution,’ 13 Asian Journal of Comparative Law 285–305. Nader, Laura. Harmony Coerced Is Freedom Denied, in Roberto J. Gonzalez (ed) Anthropologists in The Public Sphere: Speaking Out On War, Peace And American Power (University of Texas Press, 2004). Neo, Jaclyn. (2019). ‘Dimensions of Religious Harmony as Constitutional Practice: Beyond State Control,’ German Law Journal 20: 966–85. Neo, Jaclyn. (2018). ‘Review,’ International Journal of Constitutional Law 16: 720–23 (reviewing Benjamin Schontal. Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka (Cambridge University Press, 2016)). Rutherglen, George A. & John J. Donohue, Employment Discrimination Law and Theory (Foundation Press, 2012). Schmitt, Carl. Political Theology, Engl. transl. by George Schwab (MIT Press, 1985). Schmitt, Carl. The Concept of the Political, Engl. transl. by George Schwab (University of Chicago Press, 1996).

482  Research handbook on the politics of constitutional law Schonthal, Benjamin. (2018). ‘Buddhism and Constitutional Practice,’ Asian Journal of Comparative Law 13: 245–54. Sen, Ronojoy. Legalizing Religion: The Indian Supreme Court and Secularism (East-West Center, 2007). Strayer, John. The Medieval Origins of the Modern State (Princeton University Press, 1970). Taylor, Charles. A Secular Age (Harvard University Press, 2007). Tew, Yvonne. (2018). ‘Stealth Theocracy,’ Virginia Journal of International Law 58: 31–96. Tourkochoriti, Ioanna. ‘Is Neutrality Possible? A Critique of the CJEU on Headscarves in the Workplace from a Comparative Perspective,’ (forthcoming, 2021) The American Journal of Comparative Law. Tourkochoriti, Ioanna. (2012). ‘The Burka Ban: Divergent Approaches to Freedom of Religion in France and the United States,’ William and Mary Bill of Rights Journal 20: 799–852. Tourkochoriti, Ioanna. Freedom of Expression: The Revolutionary Roots of American and French Legal Thought (Cambridge University Press, 2021). Voltaire, Toleration and Other Essays (Joseph McCabe trans., 1912).

27. The constitutional politics of merit Sarah Ganty1

‘For who maketh thee to differ? and what hast thou that thou didst not receive? But if thou didst receive it, why dost thou glory as if thou hadst not received it?’ 1 Corinthians 4:7 (ASV)

1.

MERIT, A CONSTITUTIONAL BEDROCK

‘What Happens When an Élite Public School Becomes Open to All?’ asks Nathan Heller in the New Yorker of 7 March 2022, investigating the case of the competitive Lowell High School, in San Francisco, which dropped selective admission and adopted a lottery-like system. Lowell High School is not the only elite school which has recently taken this step in the United States.2 The question of merit and education as well as the more recent concept of meritocracy have been topics of intense debate in the United States in the past 10 years. Qualified as a trap3 or denounced as a tyrannical system,4 meritocracy has come to be increasingly criticised and studied in the field of education: critics argue that the promise of equal opportunities that meritocracy carries with it, is a scam allowing for the reproduction of the elite, a new aristocracy.5 Simultaneously, meritocracy has been robustly defended by others, presenting it as the lesser evil, whether in economics or politics and especially in light of rule of law backsliding.6 The US educational debate is paradigmatic of the role that merit plays in many other countries and areas of life today. Although refracted through the particularities of their contexts, the issue of merit has also attracted a lot of attention in other parts of the world, including France,7 the United Kingdom,8 India,9 Singapore10 and China.11 It currently generates debates and interest across disciplines which goes beyond education to include poverty,12 welfare policies,13 1 Many thanks to Prof. Monica Bell, Prof. Dimitry Kochenov, Prof. Daniel Markovits, Prof. Samuel Moyn, Prof. Mark Tushnet and Prof. Tom Tyler for insightful comments on a previous version of the paper. The paper also benefited from the input of Morgan Galloway, Sixtine van Outryve d’Ydewalle, Harry Panagopulos, as well as all the participants of the Yale Law School graduate Colloquium especially Akshat Agarwal, Akriti Gaur, Samantha Godwin, Pinchas Huberman, Lodewijk Van Dycke and Anmol Jain. The usual disclaimers apply. 2 Heller (2023). 3 Markovits (2019). 4 Sandel (2020). 5 Markovits (2019). 6 Wooldridge (2021); Caplan (2007); Bell (2015). 7 Pasquali (2021); Jaquet (2014). 8 Young (1958); Allen (2011). 9 Varshney (2022). 10 Chua et al. (2022). 11 Bell (2015); Mushkat (2021). 12 Bridges (2017 a); De Schutter (2022). 13 van Oorschot (2006).

483

484  Research handbook on the politics of constitutional law immigration,14 citizenship,15 including EU citizenship,16 democracy,17 and more generally politics18 as well as the organisation of the civil service and bureaucracy.19 Merit as a governing principle is far from being a new phenomenon and is intrinsically linked to the idea of justice. For instance, in Ancient Greece, some philosophers, including Plato, believed that only the most meritorious – i.e. the wisest and most reasonable – should rule. Similarly, merit lies at the heart of the ancient Chinese system of Confucianism, propagated by Confucius in the sixth and the fifth centuries B.C.E. Confucianism still constitutes a source of values and social codes in China though it has evolved and transformed since its inception. 20 The Institutes of Justinian, a segment of the Corpus Juris Civilis written in the sixth century C.E., teaches us that ‘justice is the set and constant purpose which gives to every man his due’: justice is what every person deserves or merits. Justice as merit is also not far from the idea of karma in Hinduism and Buddhism and of purgatory, heaven and hell in Judaism and Christianity. Interestingly, many hierarchical societies were also built on merit: in the early seventeenth century, the French aristocratic values were grounded in merit associated with generosity, fidelity and honour, whereas the idea of a blood hereditary aristocracy is itself the antithesis of the post-revolutionary idea of merit.21 Although with a radically different meaning, merit also lies at the heart of the American revolution22 and the ideals of republicanism proposed by Jefferson and Adams, whose aim was to rid themselves of an aristocracy based on hereditary nobility – a social structure inherited from Great Britain.23 They sought for ‘natural aristoi’: ‘a natural aristocracy among men, the grounds of which are virtue and talents’.24 Certainly, the idea of merit at that time was reserved to a few classes. The new republican society and the egalitarian social revolution excluded many other social groups, including slaves, women and the poor.25 The culture of merit as talent was also at the heart of the French revolution when it abolished a hereditary nobility.26 Echoing this idea of merit as talent, Article 6 of the Declaration of the Rights of Man and Citizen explicitly states that public careers are open to all without other distinction than their virtues and talents.27 This idea flourished under Napoléon Bonaparte, who, however, never gave up on aristocracy, but rather created a ‘meritorious aristocracy’.28

Welfens (2022). Ammann (2020). 16 O’Brien, (2016). 17 Macedo (2013); Mueller (1992). 18 Chou et al. (2020); Cramer (2016). 19 Andersen (2018). 20 Fan (2013). 21 Smith (1996). 22 Kett (2012). 23 Balkin (1997). 24 Costopoulos (1990). See also S. Macedo (2013). 25 Balkin (1997). 26 Smith (1996). Interestingly, the idea of hereditary nobility was also attached to an idea of merit as explained below. 27 Déclaration des droits de l’homme et du citoyen 1789, Article 6. 28 Smith (1996). 14 15

The constitutional politics of merit  485 It is only more recently that merit has evolved into the idea that it should be procurable by all, beyond a small class of (free) white property-owning men, and that public and social goods cannot be distributed based on invidious characteristics, such as race and gender, transforming the principle of equality enshrined in modern constitutions. In other words, merit is at the heart of contemporary antidiscrimination laws aiming to guarantee equal opportunity for all (however, blurred this concept may be, as explained by Fishkin)29 independently of someone’s race, gender, religion etc. Along the same lines, since the 1980s, the word ‘merit’ has been the mantra of great many politicians30 – right- and left-wing – of intellectual and democratic elites, and has more generally constituted a leading social ideal. People in the richest parts of the world, but not exclusively, consider merit as a value on which society should be built,31 while, interestingly, several social psychology studies have demonstrated that beliefs in merit – as opposed to luck – make unequal outcomes more acceptable to people.32 Of course, merit is not always a panacea. For example, historians have demonstrated how merit was used to implicitly implement racist policies in Ivy League universities until the 1980s.33 It is important to understand that merit, as a governing principle intrinsically linked to the idea of justice, is far from being new, but its meaning has evolved and changed. Today, merit plays a determining role in constitutional politics, as a precept of how public and social goods, offices, power and legal status ought to be shared. It implies that someone will be treated positively or negatively according to some of their (perceived) positive or negative qualities and/or accomplishments (i.e., merit or demerit).34 This results in varying degrees of constitutional and legal consequences (e.g., rights, offices, legal recognition, fines, punishment etc.), not only social and humane. In other words, merit impacts positive and negative constitutional treatment. Whatever meaning it takes, merit is individual: the vision of merit is based on a person’s qualities or actions. Pojman encapsulates this broad vision of merit as follows: ‘[a]ny feature or quality that is the basis for distributing positive (or in the case of demerit, negative) attribution, such as praise, rewards, prizes (or penalties and punishments)’.35 Importantly, merit as it governs today’s societies and the relationship between individuals and the State has multiple meanings, identifiable through proxies. First, merit is generally understood as talent and effort. This relationship undergirds the concept of meritocracy, attributed to Michael Young, author of the famous dystopia ‘The rise of the Meritocracy’.36 Second, merit is also money or market value, which is perceived as the external sign of talent and effort. In other words and although it might seem less obvious, financial assets and economic success are also used as proxies to evaluate merit: someone who is relatively rich is likely to be regarded as more meritorious than someone who is not.37 For example, it has been shown that citizens in economically unequal societies are less concerned about inequalities than those

31 32 33 34 35 36 37 29 30

Fishkin (2014). Sandel (2020). See also: Litter (2017). Kunovich and Slomczynski (2007). Feng, et al. (2013); Rustichini and Vostroknutov (2014). See also: Mark (2022). Lemann (1999); Karabel (2005). P. Celello (2023). Pojman (1999). Young (1958). See also Floud et al. (1956); Daunton (2005). Ammann (2020).

486  Research handbook on the politics of constitutional law in more egalitarian societies, because this situation is ‘reflective of merit’, which implies talent and effort.38 The role that merit plays in constitutional politics today through its proxies comes with challenges and tensions. In Section 2, I show that merit and equality are subjected of important tensions when it comes to attributing public and social goods, offices, power and legal recognition. Indeed, if merit appears as the ideal companion of antidiscrimination laws, it seems, in fact, difficult to reconcile with constitutional equality more generally: not only merit is embedded with racial, class and gender biases, but it will never be free of any kind of social hierarchy. Secondly, meritocracy and democracy are certainly tightly bound to each other.39 However, as explained in Section 3, the nature of this link is not straightforward. I posit that, although representative democracy appears, at first sight, non-meritorious, merit plays a central role in maintaining a intellectual and economic elite in power, hindering democracy.

2.

TENSIONS BETWEEN MERIT AND EQUALITY

The relationship between merit and the principle of equality, the backbone of many modern constitutions, is one of betrayal. Certainly, merit is at the heart of antidiscrimination law and policies, one of the main expressions of today’s constitutional equality (Section 2.1). However, merit and meritocracy in particular fail to deliver their promise of contemporary equality:40 social status derived from merit constitutes the mere ‘adaptive transformation of social hierarchies’ or ‘preservation-through-transformation’ in the words of Reva Siegel,41 which is at odds with the principle of equality (Section 2.2). In any case, the idea of pure merit, stripped of any social hierarchies, is utopian and would not solve the problem of those who do not conform to the merit imperative and who are at the bottom of the social ladder, especially less beautiful, slower or lazier people (Section 2.3). This section serves as a critical state of the literature analysis focussing on the relationship between merit and equality. 2.1

Merit and Antidiscrimination Laws: a Superficial Companionship

Today many countries around the world have a civil service selected and managed based on merit. In post-revolution constitutions, the introduction of merit-based selection embodied an ideal of emancipation and equality: getting rid of patronage and nepotism by selecting people on the basis of their skills and personal qualities. Today many countries around the world have a civil service selected and managed based on merit. The OECD emphasises the many benefits of a meritocracy for civil services, leading to the improvement of performance and productivity ‘which translates into better policies and better services which in turn make for happier, healthier and more prosperous societies’.42 Meritocracy is understood as reducing Heiserman and Simpson (2017); Mijs (2021); Roex and al. (2019). Wooldridge (2021); Mueller (1992). 40 Of course, equality has received myriad of meanings for centuries, which scholars and intellectuals have widely debated. See for example: Bejan (2021). For the purpose of this section, I mainly consider equality in its contemporary and constitutional occurrence, which mainly yet not exclusively implies antidiscrimination laws. 41 Siegel (1996–1997); Siegel (1996). 42 OECD (undated). 38 39

The constitutional politics of merit  487 corruption,43 but recent literature shows this may not always be the case.44 Compared to patronage and nepotism, it is true that the benefits of a meritocracy seem undisputable. It pursues an ideal of fairness combatting dishonest, corrupt and fraudulent selection. Initially, the meritocratic approach in the civil service was motivated by an anti-nepotistic rationale as in the Jacksonian Era’s distrust of government’s ‘granting monopoly charters and other special privileges to the rich and powerful’.45 Meritocracy in public service was also related to the suspicion of status distinctions among free white property-owning men. As Jack Balkin explains, it went hand-in-hand with the crusade for universal male suffrage, and in that sense was also intrinsically linked to democracy as developed below.46 Anti-nepotism was closely associated to equal opportunity – for free white property-owning men only – since the egalitarian urge of the Jacksonian democrats ‘was connected to their resentment of Eastern financiers and monopolists, whom they saw as the great barriers to equality of opportunity for all free white male citizens’.47 Of course, one century later, in the second half of the nineteenth-century, the old status relations (e.g. slavery etc.) were repudiated by law, giving the appearance of a meritocracy opened to all: ‘the [US] Supreme Court was confident that it had abolished slavery and granted African-Americans equal protection of the laws’.48 However, it did not eradicate foundational status structures and hierarchy: ‘the legal system continued to allocate privileges and entitlements in a manner that perpetuated former systems of express hierarchy’.49 It is only more recently – with Brown v. Board of Education being a major turn in the United States50 – that the conception of merit and meritocracy, and equal opportunity has evolved to be based on the idea that it should be procurable to all and that public and social goods cannot be distributed based on invidious characteristics, the cradle of contemporary antidiscrimination law and policies. The doctrine at the heart of contemporary antidiscrimination laws have slowly transformed the principle of equality enshrined in liberal democratic constitutions. Today, merit and antidiscrimination are tightly intertwined: usually the latter makes a strong case for the former. Of course, equality cannot be reduced to antidiscrimination laws.51 However, the antidiscrimination law and politics developed in EU countries, the United Kingdom, the United States, India and South Africa constitute the most developed aspect of equality enshrined in contemporary constitutional law and politics. Antidiscrimination law is based on the idea that only the individual counts and should be able to rise, and that status regimes should be abolished. It is based on merit and corresponds to equality of opportunity – however blurred the concept.52 Its central concern is to ensure the fairness of the competition for the best positions on the social ladder (be it in employment, higher education, housing or

Dahlström, Lapuente and Teorell (2011); Meyer-Sahling and Mikkelsen (2016). Xuyun, et al. (2017). 45 Mercat-Bruns (2016). 46 Balkin (1997). 47 Balkin (1997) 2347–48. 48 Ibid; Siegel (1996–1997), 1130. 49 Siegel (1996–1997), 1116. 50 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). 51 For example, social welfare systems are mainly based on a (re)distributive aspect of equality engrained in an idea of solidarity between people, challenging the mere market distribution of wealth and profit: Ringelheim and Ganty (2023). 52 Fishkin (2014). 43 44

488  Research handbook on the politics of constitutional law others). Unquestionably, antidiscrimination laws explicitly dispute social hierarchy based on characteristics attached to historically oppressed groups. In a society governed by the market, restricting the concept of equality to antidiscrimination principles implies the embracing of merit-based standards and an economic meritocracy. It mainly provides better access to the market for those who have the right qualities for it, the meritorious, be it the job market, the education market or even the passport market. As pointed out by Alexander Somek, antidiscrimination law aims to facilitate access to the market rather than correcting how it works or exempting certain spheres from its operation.53 Even in the cases where it apparently operates to disrupt the commodification rationale, such as in work-life balance measures in Europe,54 it still follows the neoliberal doctrine which targets highly-skilled workers ‘who are seen both as valuable workers and as valuable mothers’.55 Merit is central to this ‘equality rectification’ rationale. To put it differently, ‘the preferred method of rectification is not the replacement of the market with a different social mechanism but rather its moral purification. The ideal world envisaged by antidiscrimination law is a world inhabited by better people – and not, for example, a world where power differentials in the relation of capital and labour have been readjusted such as to approach evermore closely a sustainable equilibrium’.56 Simply put, the relationship between merit and antidiscrimination fails to deliver a broader promise of equality. In fact, going a step further, I show in the next section that merit is at the heart of the modernisation of social hierarchies. 2.2

Merit as the Modernisation of Social Hierarchies

Certainly, meritocracy goes hand-in-hand with the development of the market and inequalities and does not come as a disruption of the commodification. However, it is at least based on ‘objective’ criteria independent of invidious characteristics – prohibited by antidiscrimination law – or any kind of preferment or nepotism. On this basis, Adrian Wooldridge contends that meritocracy constitutes a lesser evil.57 It is unquestionable that merit – assisted by antidiscrimination law – makes social hierarchies much more porous. Nonetheless, merit and meritocratic policies do not challenge social hierarchies as such, which are derived from the market and the imperative of production, as well as the degree of prestige and honour or disapproval and shame attached to them, even when these social statuses correspond to historically oppressed categories. In fact, even if antidiscrimination laws have certainly made the social hierarchies more permeable, fluid and visible, they also participated at modernising them, including through the concept of merit. They mainly allow individuals who can fit the hegemonic norms of merit to rise and produce more and better, without disputing the underlying principle of social selection and the hierarchies’ reproduction based on differences in cultural capital between individuals.58 In other words, merit is still an indirect proxy for invidious characteristics, corresponding to historically oppressed groups. The examples are numerous on both sides of the Atlantic.

55 56 57 58 53 54

Somek (2011), 137. See also Crenshaw (1988) and Somek (2005). Such as in the case of pregnant woman as explained by Colm O’Cinneide (2013), 131. Isailovic (2021), 283 and 289. Somek (2011), 15. Wooldridge (2021). Bourdieu (1986).

The constitutional politics of merit  489 The SAT test system teaches us that more than half of the top 1 per cent ends up in the US Ivy League schools – with important racial and social class biases – the major factor providing access to a successful professional career in Uncle Sam’s country.59 In the same vein, the so-called ‘objective’ standardised tests to measure aptitude and intelligence are entrenched in racial prejudice and considered as ‘one of the most effective racist policies ever devised to degrade Black minds and legally exclude Black bodies’.60 The IQ test is the most obvious example denounced as an instrument of oppression against the (Black) poor,61 which undermines people already treated as inferior62 and used to hide social inequalities behind allegedly ‘natural’ ones.63 In addition, the transformation of the welfare state into a workfare system in Europe is paradigmatic of the increasing role of merit in the reception of social benefits, which is racialised. The language requirements imposed in some European countries as a precondition for access to social benefits or social housing, such as in Belgium and in the Netherlands, arguably have an implicit impact on immigrants or citizens with an immigrant background. Of course, merit is not the only proxy to determine who deserves or not certain social benefits. Sometimes invidious criteria are directly used to determine the deserving categories without explicit consideration of ‘merit’. In Austria, for example, the racialisation of welfare support is used as a means to further welfare state cutbacks.64 Public views have also come to reflect the position that when determining ‘who should get what’, ‘the migrant “other” is often classified as per se undeserving’, whether she is meritorious or not.65 Indeed, there is an implicit suspicion of the deservingness of migrants, whether in public opinion or within the welfare system itself.66 As explained by Khiara Bridges, more generally in the United States, ‘throughout history, the categories of the deserving and undeserving poor have been racialized and, frequently, racist’.67 In short, people of colour in poverty are usually perceived as undeserving poor per se, implying implicit presumption of unmeritorious i.e. people who can be blamed for their poverty, which derives from their individual behavioural or character flaws, including the lack of effort and talent.68 In the European Union, the European Court of Justice’s restrictive reasoning on the exclusion of mobile EU citizens from social benefits in their host states – including in the Dano and Alimanović cases – prompted Gareth Davies to assert that this change in the CJEU’s case law on the granting of social benefits did so much mark the expression of a change in the normative position of the Court, but reflected a change in the profile of the applicants for social benefits.69 Davies observes that in recent cases, the litigants (notably Dano70 and Alimanović,71

61 62 63 64 65 66 67 68 69 70 71 59 60

Markovits (2019). Kendi (2019), 101. See also Wooldridge (2021), 210. Kamin (2009). See also: Herrnstein (1995). Hudson (1966). Gould (1981). Schadauer (2022). Ibid. Harell, Soroka and Iyengar (2016). van Oorschot (2000). Bridges (2017) 1052. Ibid, 1052–53 and 1078. Davies (2018). Case C-333/13, Elisabeta Dano and Florin Dano v. Jobcenter Leipzig, EU:C:2014:2358. Case C-67/14 Jobcenter Berlin Neukölln v. Nazifa Alimanović e.a., EU:C:2015:597.

490  Research handbook on the politics of constitutional law both belonging to the Roma community) presented a much less meritorious profile than the applicants in older cases (for example Trojani,72 Grzelczyk73 and Martínez Sala).74 Some considered that the thesis developed by Davies goes ‘a bridge too far’.75 However, Davies is right in raising the likelihood that establishing a meritorious profile for applicants has played a role in the outcome of cases. The fact remains that merit seems to operate implicitly here and in a completely circular manner: certain profiles considered as not having participated economically to a sufficient extent in the host society and not making sufficient effort to integrate are considered de facto as not deserving enough to permit them to benefit from social assistance in that state. Furthermore, even being a worker is no longer enough to be meritorious. As Charlotte O’Brien demonstrates, the working poor are now excluded from the benefits of equal treatment because they do not participate enough in their host society from an economic perspective. The author thus speaks of an elitist model of free movement in the European Union, granting rights on the basis of socioeconomic class:76 there are now valid and invalid jobs when establishing who is meritorious and therefore eligible to rights.77 Even more troubling is that meritocratic systems do not only implicitly reproduce social hierarchies, but also promote discriminatory behaviours. An experiment showed that in private companies where meritocratic values are explicitly implemented, managers give larger rewards to male employees than female employees with identical performance evaluations, and this discriminatory practice disappears when meritocratic practices are not explicitly adopted.78 This appears as a paradox, since meritocracy usually boasts that it is impartial and precisely helps to avoid discrimination. The belief that meritocracy is also virgin of corruption can be similarly questioned: it has been shown that ‘corruption is endorsed as an outcome of a legitimate hierarchy and meritocracy’.79 On top of this, the collusion between the private and the public sector, especially through ‘revolving doors’ between politics, on the one hand, and the finance sector80 or the big tech lobbies81 on the other hand, is still business as usual and it does not appear to be a problem for those at the heart of it. It is suggested that such a paradox happens ‘because explicitly adopting meritocracy as a value convinces subjects of their own moral bona fides. Satisfied that they are just, they become less inclined to examine their own behaviour for signs of prejudice’.82 In fact, merit crystallises the ‘adaptive transformation of status hierarchies’, the modernisation of status regimes in the words of Reva Siegel,83 and seems quite powerless to slow down this transformative spiral which preserves the social status quo and feeds it.84 In all the key domains ripe for deeper and structural social transformation, merit appears as the main speed Case C-456/02, Michel Trojani v. Centre public d'aide sociale de Bruxelles (CPAS), EU:C:2004:488. Case C-184/99 Rudy Grzelczyk v. Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve, EU:C:2001:458. 74 Case C-85/96 María Martínez Sala v. Freistaat Bayern, EU:C:1998:217. 75 Hoogenboom (2018). 76 O’Brien (2016), 939 and 941. 77 Ibid, 937. 78 Mark (2022); See also Castilla and Benard (2010). 79 Xuyun, et al. (2017). 80 Yiorgos Vassalos and Corporate Europe Observatory (2018). 81 Corporate Europe Observatory (2012). 82 Mark (2022). 83 Siegel (1996–1997), 2174–78; Balkin (1997). 84 Balkin (1997), 2350. 72 73

The constitutional politics of merit  491 bump for those who find themselves in the lower social strata. Even when status regimes are acknowledged among scholars, social class – which is one important driver of this transformation of status hierarchies through merit – tends to be forgotten.85 Of course, in some instances, constitutional law has been more or less helpful to impose some limits to the inequalities derived from apparent objective or neutral criteria, especially when alleged meritocratic measures have a disparate impact against one specific group or indirectly discriminate against it. The foundational Griggs v. Duke Power Co. (1971) case in the United States is an example where constitutional law abjured an employment test which had a differential impact on Black Americans and was not justified based on ‘business necessity’.86 However, the Supreme Court did not depart from the meritocratic rationale, quite the contrary: it protects it, shaping better market actors, without questioning the reproduction of hierarchies through merit. In fact, constitutional law is generally of little use when it comes to setting limits to the contest of merit and is powerless at challenging a widely accepted idea of merit as the reproduction and transformation of social hierarchies. One could object that if indeed antidiscrimination laws and policies and the constitutional principle of equality do not challenge merit as the driving force in the reproduction of social hierarchies, they sometimes water down the modernisation of status regimes through affirmative action programmes. These programmes share some of the concerns of more structural distributive and re-distributive policies, which aim at palliating structural inequalities throughout society and not only ensuring that the meritocratic process is fair.87 Indeed, they acknowledge that merely prohibiting direct and indirect discrimination is insufficient to redress structural inequalities suffered by groups who have historically been treated unfairly because of their race, gender or other status grounds.88 Some corrective measures are necessary to produce fair outcomes and affirmative action policies are a temporary response to an abnormal situation, they tend to compensate for the lasting effect of past injustice as well as ongoing bias and prejudice.89 However, these ‘special treatments’ have often been attacked and deemed unconstitutional precisely because they are based on status categories.90 More fundamentally, even though these programmes a priori look less meritocratic since they directly focus on minorities that are underrepresented at the highest levels of the social ladder (especially in employment and education), they usually only benefit the most meritorious among the categories deemed underprivileged, carrying with them a strong sense of merit. The example of class-based affirmative actions is striking. As Bridges outlines, the beneficiaries of affirmative action in education, in fact, ‘have the same values, norms, work ethics, behaviors, expectations, aspirations, approaches to learning, etc., as their wealthier counterparts. Thus, if these poor students are poor, it cannot be because they are behaviorally or morally flawed. It cannot be because they, as individuals, are deficient in some way. Instead, it must be because they are the victims of forces and structures well outside of their control. They must be the deserving poor’.91 Indeed, these class-based affirmative action programmes do not question the condi-

Forbath (1999); De Schutter (2022); Ganty (2021). Fiss (2004). 87 Ringelheim and Ganty (2023). 88 Ibid. 89 Ibid. 90 Balkin (1997), 2350. 91 Bridges (2017), 1085. 85 86

492  Research handbook on the politics of constitutional law tions that make poor students unable to compete against wealthier students when measured by traditional merit criteria – including standardised tests and the fancy lines expected on CVs, such as unpaid internship, travel, volunteer experience, artistic talent etc. – but only select those who fit and are unproblematic in that regard. The critics of meritocracy are walking a tightrope, however. There is a risk indeed that behind non-disclosed nationalist, racist and other goals, some seize anti-meritocratic arguments to prevent some out-group individuals from thriving and rising when they otherwise have the capacities to do so. The citizenship by investment programmes in Malta and Cyprus (which have been suspended) under attack by the EU Commission are paradigmatic of this situation.92 Citizenship is today’s main cause of global inequality as Milanović showed.93 Some individuals born in the wrong parts of the world have money to buy a passport and improve their situations. It certainly follows the neoliberal individual rationale of merit, denounced previously, and illustrates the limit of the meritocratic approach which only perpetuate hierarchies (here citizenship hierarchy). However, their opponents do not denounce it because they would like to oppose the inequalities underlying the institution of citizenship; quite the contrary – they want to keep their club limited to those who have the right blood.94 The opponents of citizenship by investment reproduce a discriminatory rationale that antidiscrimination law is supposed to combat – especially when race, ethnic origin and nationality enter play – but fails to do so.95 In other words, any system which reproduces and modernises social hierarchies should be treated with caution whether it is meritocratic or anti-meritocratic. In short, merit and antidiscrimination are two sides of the same coin and legitimise one another in participating in a system transforming and modernising social hierarchies. History has taught us that the law has been a powerful instrument of inequalities and injustice, oppression and domination, which seem to be part of its DNA. Of course, this aspect of the law can be watered-down and diluted: the evolution of antidiscrimination protection towards substantive equality in many countries around the globe show that there has been progress, making social hierarchies more porous. Nonetheless, as some inequalities and hierarchies seem to disappear, they resurface under new forms, often more insidious, such as the blurred but widely accepted notion of merit, which is part of constitutional politics. This is all based on history, and believing in meritocracy as a value and a way of life simply implies distorting history: ‘If we wish to maintain our commitment to meritocracy and to maintain our belief that meritocracy is the normal, as well as desirable, route to success, then we are forced, in effect, to deny the degree to which history shows otherwise […] We are forced to deny the extent to which the advantage, successes, and potentiality of every white person is a product of racial advantage rather than of individual merit standing alone’.96 The question that follows is whether a meritocracy that stands alone – based on ‘pure’ merit – is possible and desirable.

Interestingly, money is the main problem here while talents and skills are not: Erez (2019). Milanović (2018). 94 Kochenov and Basheska (2022). 95 Prohibition of discrimination on grounds of nationality is barely protected. See the example of Europe: see Brouwer and de Vries (2015); Ganty and Kochenov (2022). 96 West (1996), 1016. 92 93

The constitutional politics of merit  493 2.3

Pure Merit is a Chimera

Now, let’s imagine a world freed from any form of historical hierarchies, to single out ‘pure merit’ alone, especially talents and efforts, and to foster equal opportunity. We would still be confronted with those who are less performant and less energetic than others.97 One could argue that these differences are morally acceptable as they are based on natural talents and ambition and would not be based on hierarchies grounded in invidious characteristics. Sir Isaiah Berlin is right that inequalities in a meritocratic societies are unavoidable: ‘the unequal distribution of natural gifts is a well-known obstacle to economic equality: in societies where there is a high degree of equality of economic opportunity, the strong and able and ambitious and cunning are likely to acquire more wealth or more power than those who lack these qualities’.98 Many, like Berlin, believe that inequalities based on talent, ability and character traits are not only unavoidable, but also necessary if we want to avoid the fanatic egalitarian who ‘will consequently wish – if equality is the paramount goal – to root out the evil at the source’ by suppressing any individual talent or ambition.99 Leaving the fanatic egalitarian aside for the moment, we should ask to what extent natural talent and ambition really differ from invidious characteristics such as race, gender and religion (in the fictional scenario where they can be distinguished)? If talents are innate or based on genetic characteristics – the ‘raw ability’100 – it means that they only derive from heritage and luck and nothing else. These characteristics are therefore morally arbitrary as Rawls reminds us.101 Even the most libertarian thinkers such as Hayek consider that a person’s prosperity accumulated through the rules of the market is based on luck,102 making it easier for the non-successful to accept their situation. In this vein, luck egalitarians would argue that merit should only be based on what is dependent on our individual responsibilities and that bad luck should be compensated for: ensuring that ‘everyone gets what they morally deserve’.103 This position overlooks the fact that brute bad luck and individual responsibilities are nothing but two sides of the same coin, as they are all dependent on internal and external contingencies which are impossible to disentangle: ‘[t]he extent to which natural capacities develop and reach fruition is affected by all kinds of social conditions and class attitudes. Even the willingness to make an effort, to try, and so to be deserving in the ordinary sense is itself dependent upon happy family and social circumstances’.104 We owe our talents – or any features of merit – and the way we cultivate them to our environment and heritage. Thomas Hobbes perfectly understood these contingencies and the importance of family – although for him more than education, discipline and educative punishments were key to become ‘fit’ for society.105 More recent authors have tried to encapsulate the idea that what we do and who we are heavily depends on contingencies affecting us throughout our entire lives, such as the

Somek (2005). Berlin (1978), 92. 99 Ibid. 100 Wooldrige (2021), 346 101 John Rawls. A Theory of Justice (Harvard University Press, 1971) 64. 102 von Hayek (1978), 94–96. See also Scanlon (2018), 125 and Frank (2016). 103 Anderson (1999), 325. 104 Rawls (1971), 52 and seq. and 64. 105 Hobbes (1651), l:2n.l, 24–25. See also: Bejan (2010), 619. 97 98

494  Research handbook on the politics of constitutional law Bourdieusian idea of cultural capital,106 the famous capabilities approach developed by Sen and Nussbaum – referring to the impossibility of activating functioning – or, more recently, the Bottlenecks approach developed by Fishkin and which relates to our opportunities in life and more specifically to opportunity pluralism, encompassing qualification, developmental and instrumental goods. The bottom line for all these theories resides specifically in the life-time interactions between internalities and externalities. Assessing merit exclusively based on individual responsibilities – internalities only – is therefore illusory. For the defender of meritocracy, the innate differences of talents and the inequalities which derive from them are right and desirable because they allow us to distinguish one person from another and the individual from the mass and this is argued to be precisely why we should stick to meritocracy as the lesser evil.107 There is a shortcut here, however: rejecting meritocracy does not mean suppressing individuality, talent, effort or specific cultural or personality traits and prohibiting people from rising in life; as in the world of the ‘fanatic’ egalitarians described by Berlin.108 This fanatic vision is unbearable, as it eliminates all differences within society and extinguishes the individual.109 This does not mean either that one should not thrive and develop particular skills and talents. Within certain categories, for example doctors, plumbers, athletes among others, distinguishing an individual as ‘the best,’ or ‘great,’ (e.g., ‘she is the best oncologist’) is intuitive and expected. However, it is across categories that merit becomes problematic when merit is used as the main indicator – as often it is – to distribute public, social and economic goods based on dominant and conformist conceptions of what individual responsibility, talent and effort is (for example, a refuse collector versus a university professor). In fact, distributing public, social and economic goods on grounds of a hegemonic idea of merit is likely to suppress all the individuality which would not fit the dominant framework of merit. Indeed, the merit attached to certain types of jobs and functions, education and offices is mainly a matter of social and cultural convention and does not have any moral basis.110 Elisabeth Anderson is right that any judgement allegedly based on individual responsibilities and choices – on which ultimately the dominant notions of merit is based – is flawed in itself because it is intrusive and demeaning and undermines ‘people’s capacities to exercise responsibility and effectively dictates to them the appropriate uses of their freedom’.111 Meritocracy mainly provides a hegemonic framework where individuals can thrive and many do not fit its parameters. It suppresses the diversity that people could reach in thriving. In Richard Tawney’s words, despite ‘varying characters and capacities’, everyone has ‘in their common humanity a quality which is worth cultivating’: they should all be given the chance for self-fulfilment so that everyone ‘may be equally enabled to make the best of such powers as they possess’.112 In other words, there is no point in ‘ranking all legitimate ways of life on some hierarchy of intrinsic value’, on which meritocracy is based.113 The fact that individuals value different lives and that there is little Bourdieu (1986). Wooldridge (2021). 108 Berlin (1978). 109 Kay Nielsen argued that only Tribal societies could exist under the egalitarian regime imagined by Berlin: Nielsen (1983). 110 Scanlon (2018), 71–73. See also Stiglitz (2012), 17–20. 111 Anderson (1999). 112 Daunton (2005). 113 Anderson (1999), 190. 106 107

The constitutional politics of merit  495 difference in rewards between them is in fact beneficial, yet radically opposed to any idea of meritocracy which implies hierarchies: ‘it helps create a sufficient diversity of views about what matters to enable people to decide for themselves, in an informed way, what matters to them’.114 In short, an idea of justice based on ‘pure’ merit is not desirable even in the improbable world where it would not be a proxy for the modernisation of ‘traditional’ status hierarchies and oppressed categories. In the words of Hannah Arendt, ‘[m]eritocracy contradicts the principle of equality […] no less than any other oligarchy’.115 The idea of pure merit simply does not exist and acts as a smokescreen for those who are in power and seek to perpetuate the status quo. Constitutional politics grow under the illusion of pursuing an ideal of meritocracy which is nonexistent and allows only the lucky who fit the conformist and hegemonic idea of merit to pursue their happiness. Interestingly, the impossibility of pursuing private happiness for the unmeritorious is also reproduced in the public sphere, as Arendt showed in her criticism of representative democracies. Arendt argues that ‘no one could be called either happy or free without participating, and having a share, in public power’ and the representative character of today’s democracies precisely deprives citizens from the public dimension of their pursuit of their happiness on the basis of meritorious grounds.116 At this point, we need to have a closer look at the articulation between merit and representative democracies depriving (unmeritorious) ordinary citizens of pursuing their happiness.

3.

TENSIONS BETWEEN MERIT AND DEMOCRACY

Even defenders of meritocracy concede it is often a smokescreen for class privileges and race.117 However, they argue that meritocracy is still central to modernity and cannot be discarded as easily, since it ‘has fewer faults than alternative systems’.118 For example, Wooldridge warns us that a criticism of meritocracy can bring us to a dark place – as critiques of liberalism or democracy did in the twentieth century – such as the Trump presidency or Brexit.119 However, as shown below, meritocracy and democracy do not need each other to thrive, quite the opposite: in fact, meritocracy is not an ideal companion for democracy, as the current backlash against the political elite and the current democracy crisis testify. It is a fact that the world is less democratic than it used to be 10, 20 or even 30 years ago.120 In 2010, full democracies governed 12.3 per cent of the world population (26 countries), which had fallen to 6.4 per cent by 2021 (21 countries). Flawed democracies, hybrid regimes and autocracies are all gradually on the increase: 39.7 per cent of the world population (53 countries) was governed by flawed democracies in 2021, while it was 37.2 per cent in 2010 (also for 53 countries); 37.1 per cent lived under autocratic regimes in 2021 (59 countries) and 36.5 per cent did in 2010 (55

Ibid. Arendt (1954), 4. 116 Arendt (1979); Sitton (1987). 117 Wooldridge (2021). 118 Ibid. 119 Ibid, 12. 120 Herre (2022). 114 115

496  Research handbook on the politics of constitutional law countries); and 17.2 per cent were governed by hybrid regimes in 2021 (34 countries) and 14 per cent in 2010 (33 countries).121 The decline of democracy has led many liberal democrats to paradoxically question the merits of democracy as a positive model, especially the ability it provides the electorate to make meaningful and considered decisions, while the question should rather be whether we have enough democracy and too much meritocracy. In the following section, I disentangle the relationship between merit and democracy and examine the tensions between the two, on the basis of a critical state of the literature analysis. First, I show that democracy, including representative democracy, appears, at first sight, as an unmeritocractic enterprise and does not need any of the features attached to merit and political meritocracy in order to function (Section 3.1). Second, I posit that a closer look gives us a more complex picture of the relationship between democracy and merit: contemporary representative democracies is far from being unsullied by the influence of merit. Arguably, election implies distinction on grounds of merit which serves the political elite to preserve its power (Section 3.2). Thirdly, I raise the question whether merit, although unnecessary to democracy, improves democracy or undermines it (Section 3.3). I contend that merit tends to be counterproductive when it comes to preserving a democratic ideal. I will confine the discussion to today’s representative forms of democracy, because it is precisely the representative or indirect character of this model of democracy which is under important criticism among theorists of democracy and that alternative propositions of participative and direct democracy are increasingly being developed. 122 The criticism against representative forms of democracy is well-known. Arendt and Berlin, among others, have warned us that truth is the enemy of freedom and politics are only about topics which are not and should not be dependent on truth.123 As a consequence, the validity of political opinion rests on consideration of a variety of other perspectives beyond truth. 124 Hence Arendt’s criticism of representative democracy argues that it ‘cannot provide the experience of a plurality of perspectives for the majority of its citizens’ and as a consequence, ‘representative democracy disrupts proper opinion formation on political topics’.125 In the same vein, Hélène Landemore suggests that today’s representative democracy is ‘arguably a liberal-republican rather than a democratic construct, primarily oriented toward the protection of certain individual rights rather than the empowerment of citizens per se and congenitally tied to the ideal of the mixed regime known as “representative government”.126 3.1

Democracy is an Unmeritocratic Enterprise

At first sight, contemporary representative democracies appear as unmeritocratic enterprises: one of their core elements, the electoral system, is based on the principle one person, one vote whatever achievement, IQ, cultural capital, education or wealth the person has. Of course, democracy is not limited to elections and does not even require them: as long as ‘people are Economist Intelligence Unit (2022) and (undated). See e.g. Landemore (2020). 123 Sitton (1987). 124 ‘The absolute truths of philosophers and the absolute goodness of saints cannot be allowed entrance to this sphere without destroying it. They have their places in other realms of human experience’: Ibid. 125 Ibid. 126 Landemore (2020), Prologue, xiv. 121 122

The constitutional politics of merit  497 free to develop and use peaceful methods to criticize, pressure, and replace the leadership’127 and the government is responsive to this, at least in a thin understanding of democracy.128 Government responsiveness – whether in response to elections, petitions, complaints, protests, demonstrations or strikes etc. – provides an appearance of political equality. After all, these methods are open to any citizen. Even those excluded from elections can have an impact on policy through protest,129 with the suffragettes being one example among others. In any case, it would be difficult to claim that Switzerland was not a democracy until 1971 when women were finally entitled to vote in the federal elections or even in 1990 when women gained full voting rights in the canton of Appenzell Innerrhoden. Still, for decades now in the majority of democratic countries around the world, your assigned sex, education and wealth has ceased to matter, at least on paper, for political participation, whether this is about the right to complain, protest, vote or run for office, and this echoes the idea that democracy is associated with the ideal of equality: individuals should be able to participate in making the laws that bind them on an equal footstep.130 Of course, equal participation can take a thin and formal form limited to voting or a thicker, more substantial form implying that people will be equally involved in the process of making the law, including more importantly the deliberation of it.131 Although one cannot generalise, it is striking that most of today’s democracies have very little equal deliberation and, in this sense, approach the minimal or thin conception of equal participation rather than the thicker one. Origin, talent and intelligence do not matter to the functioning of democracy, especially when equal participation exists in its thinner version. John Mueller argues that the success of democracy over the last 220 years is because it can function on the basis of the minimal human being: ‘in a democracy, people do not need to be good or noble, but merely to calculate their own best interests, and, if so moved, to express them’.132 The question of whether people are in fact selfish and apathetic or can rise above these qualities does not really matter for representative democracy, at least in its thin manifestations: no opinions, neither discussion likely to ring the meritocratic bell is required. In Sitton’s words, ‘opinions’ simply do not exist in representative democracy and cannot exist, precisely because opinions – and therefore discussions – are not required; only recognition and obedience are. Political life is therefore greatly limited in the thin understanding of equal participation: ‘the opinions of the people are indeed unascertainable for the simple reason that they are non-existent’.133 The apparent unmeritocratic character of representative democracy has precisely enabled a liberal elite to blame the electorate for today’s sick democracies and their elected authoritarian leaders: the troubled times of the past 20 years have pushed discontented voters to elect populist demagogues and autocrats. Although these populist rulers do not always act in anti-constitutional ways,134 they do not act for the long-term good of their countries, giving the illusion of a union of the people ‘against elites who are deemed corrupt or in some other way

Mueller (1992), 984–85. Schmitter and Karl (1991). 129 Mueller (1992), 985. 130 Landemore (2020) 6. See also Dahl (1989) 37. 131 Landemore (2020) 6. 132 Ibid. 133 Ibid. 134 Tushnet and Bugaric (2022). 127 128

498  Research handbook on the politics of constitutional law morally inferior’135 and endangering the democratic system by being responsive to citizens in accordance with the degree of their support. The argument that some classes of citizens would not have the full capacity of mind, rationality and ability to make politically informed choices is not new. Since time immemorial antidemocratic theorists have judged that ordinary people are too incompetent to make meaningful decisions in choosing their leaders, especially when autocrats obtain power, oppressing minorities. Some of the worst dictators of the twentieth century obtained power democratically. In this context, political meritocracy – which has been presented for millennia as a virtuous political regime – is increasingly being presented as a reasonable alternative to democracy, as it excludes blood aristocracy and other arbitrary distinctions, as well as the non-talented and non-virtuous citizens from the political process. The Chinese philosopher and politician, Confucius – the sage of the sages – is the architect par excellence of political meritocracy: he called for rulers who would succeed to power based on their merits, especially moral and civic virtue, instead of their blood. Education for all was also central to him, to allow the selection of leaders with exceptional skills to make the right moral decisions.136 In Imperial China, selective examinations put people on the path to power. For contemporary China, whose political culture is engrained in meritocracy,137 the end of Maoism and the economic growth experienced since the early 1990s have brought back an enthusiasm for the political meritocracy engendered in Confucianism and its tradition of erudite rulers.138 In fact, Xi Jinping’s Communist party has increasingly promoted political meritocracy, implying the selection of leaders and party members – a ‘symbol of excellence’139 – based on talent and academic achievements rather than votes, and presenting this as an alternative to sick Western democracies which fail to maintain the link between democracy and prosperity.140 Scholars’ enthusiasm for a Chinese political meritocracy has also grown.141 Singapore is today considered ‘a high-tech version of the Confucian mandarin state’ based on examinations and a competitive educational system.142 Although India is historically less entrenched into a meritocratic tradition, educational and sanitary conditions have been imposed in some regions as a requirement to run for office. In 2015, the Indian Supreme Court upheld the constitutionality of the Haryana Panchayati Raj (Amendment) Act 2015 (Act 8 of 2015) which obliged candidates for local self-governing bodies in the village panchayats to possess a minimum education qualification and to have a functional toilet at their residence to be eligible to contest the elections, considering that ‘it is only education which gives a human being the power to discriminate between right and wrong, good and bad’143 and that ‘if people still do not have a toilet it is not because of their poverty but because of their lacking the requisite will’.144 In the Western hemisphere, many conceptions of political participation also take a meritocratic approach. There was of course Plato, famous for his definition of natural aristoi in The 137 138 139 140 141 142 143 144 135 136

Müller (2016), 19–20. Bell (2015). Pines (2012). Bell (2015), 4. Wooldridge (2021), 330. Ibid, 337. Among others: Bell and Li (2013). Wooldridge (2021), 322. Rajbala v. State of Haryana (2016) 1 SCC 463, para 85. Ibid, para 93.

The constitutional politics of merit  499 Republic: a political meritocracy which would not include the majority. In this vein, Thomas Jefferson and John Adams also defended a natural aristocracy based on virtue and talent rather than on land and titles, although the latter was much more ambiguous about it towards the end of his life, questioning any form of aristocracy. John Stuart Mill did not see any problem with giving an extra vote to educated voters.145 Along the same lines, Schumpeter considers that ‘the typical citizen drops down to a lower level of mental performance as soon as he enters the political field. He argues and analyses in a way which he would readily recognize as infantile within the sphere of his real interests. He becomes a primitive again’.146 Among contemporary authors, Bryan Caplan suggests to introduce a test of voter competences to prevent an irrational electorate from voting.147 Based on several experiments, William McDougall argued that democracy is doomed.148 Richard Dawkins wrote in 1976 that ‘it’s unfair to thrust onto unqualified simpletons the responsibility to take historic decisions of great complexity and sophistication’.149 Going one step further, Jason Brennan argues that the electorate should not vote if they are not able to make informed political judgements.150 Wooldridge also considers that the first problem of democracy is that ‘ordinary people simply don’t have enough knowledge, particularly of economics or foreign affairs, to make sensible judgements. They invariably favour the short term over the long term, the exciting to the wise. This means that they enjoy themselves for a while but ultimately end up on the rocks’.151 He goes on to consider that some countries like Greece and Italy have failed to grow economically because they ‘have resisted meritocracy’, considering quite disputably that meritocracy is the only alternative to clientelism and nepotism.152 One could even add that, nowadays, one of the main characteristics which distinguishes the electorate of populists and autocrats from others is in many instances education level, as observed in the United States (the gap between those with and without a college degree),153 Brazil,154 the United Kingdom155 and Hungary.156 One should recall, however, that the amount of education provided is generally highly correlated with democracies.157 Moreover, if some people can be fooled all the time and all the people can sometimes be fooled, ‘they cannot – all of them, anyway – be fooled all the time’.158 In fact, foolishness or not, many scholars have put forward a discontent precisely against a diplomas elite which tends to ‘civil silent’ those

Mill (1861); Miller (2015). Schumpeter (1943), 262. 147 Caplan (2007). 148 McDougall (1921). 149 Dawkins (1976). 150 Brennan (2011). 151 Wooldridge (2021), 64. 152 Ibid, 338. 153 It was particularly true in 2016 and 2020 for the US Presidential election. See Tyson and Maniam (2016); Pew Research Center (2020). 154 Romero (2022); Rennó, (2020). 155 Hobolt (2016). 156 Enyedi and Szabó (2019). 157 Glaeser, Ponzetto and Shleifer (2007). The quality levels of education in democracies versus autocracies is not well-known, though (Dahlum and Knutsen (2017). 158 Mueller (1992), 995 145 146

500  Research handbook on the politics of constitutional law they consider as fools or evil,159 a lack of ‘mere civility’ which implies minimal social norms necessary to keep a conversation and disagreement going.160 More generally, scholars do not agree whether the democratic process usually generates bad or good democratic leaders – leaving aside the challenges inherent in the underlying bureaucracy.161 For Mueller, the process in general yields quite able leaders, ‘responsive and responsible’162 while for Wooldridge democracy provides poor leaders: ‘[t]he most successful vote-getters are demagogues who can weave wonderful fantasies about the state’s future but are really nothing more than charlatans, lying their way to power or buying votes with other people’s money’.163 If we agree that ‘not bad’ democratic leaders are those who are responsive and responsible – i.e. those unlikely to harm the democracy understood in its thin form – it would be difficult to argue that for 220 years, democracies have been mainly governed by bad leaders. Of course, Europe’s dark 1930s, Latin America’s 1970s and even today’s US, Hungary, Poland and Brazil have elected particularly ‘bad’ leaders for their democracies – i.e. authoritarian leaders likely to subvert democratic institutions. However, these are exceptions, fatal exceptions for some certainly, but exceptions. Moreover, the alleged lack of merits of ordinary citizens should not be considered as central to the debate on democratic backsliding, as opposed to what many disappointed democrats argue. Rather, people’s discontent, the representative character of democracies and the absence of ‘mere civility’ should. This is of course not to say that education is not important and necessary to democracy, quite the contrary in fact,164 as long as education does not become Hobbesian unreflective obedience and leaves place for cultivation of personality, judgement and individual capacities.165 In a nutshell, blaming ordinary citizens for being unvirtuous and unmeritorious in making poor choices among poor alternatives is ignoring the elephant in the room: rulers who rest and maintain their power on an illusion of meritocracy as discussed in the next section. 3.2

The (Illusion of a) Meritorious Political Elite

To consider democracy as an unmeritocratic enterprise is an incomplete story, however. Merit – or at least an illusion of it – does play an important role in today’s democratic process, especially electoral democracies, implying a principle of distinction for the ones elected, the political elite.166 In the end, representative democracy, specifically electoral democracy, imply nothing but the opportunity to choose someone who distinguishes herself with ‘a quality that is both positively valued and rare’, closely linked to the idea of merit. 167 In the words of See e.g. Cramer (2016) Bejan (2017). 161 Kane and Patapan (2012); Woodrow (1887). 162 Mueller (1992), 997. 163 Wooldridge (2021). 164 ‘As education raises the benefits of civic engagement, it raises participation in support of a broad-based regime (democracy) relative to that in support of a narrow-based regime (dictatorship). This increases the likelihood of successful democratic revolutions against dictatorships, and reduces that of successful anti-democratic coups’: Glaeser, Ponzetto and Shleifer (2007). 165 Hobbes (1651), 46:32, 464. As Bejan reminds us, ‘A well-educated populace, according to Hobbes, would think of themselves as “monks and friars, that are bound by vow to … simple obedience”’: Bejan (2010). 166 Landemore (2020), 12. 167 Manin (1997), 139‒40. 159 160

The constitutional politics of merit  501 Bernard Manin, ‘an elective system leads to the self-selection and selection of candidates who are deemed superior, on one dimension or another, to the rest of the population, and hence to voters. It is no accident that the terms “election” and “elite” have the same etymology and that in a number of languages the same adjective denotes a person of distinction and a person who has been chosen’.168 Distinction based on merit associated to wealth and social standing was in fact a way for the liberal nineteenth century elite to stay into power since it was not ready and did not ‘concede a preponderance of influence to the newly enfranchised electorate’.169 They knew that opposing democracy was vain and they therefore turned it to their own advantage, without letting their power fall into the hands of ordinary citizens. In fact, democracy gave them political legitimacy, bringing them political gains rather than losses: they deserved their position of power because people had chosen them on the basis of their merits. As a matter of fact, ‘the participation that elites embraced was one that would reproduce the existing political dynamics on a larger scale, not one that would radically transform the political order’, as Amel Ahmed explains.170 In other words, democracy precisely helped those already in power to keep it and to persuade people that they deserve it because they make better use of their judgement and agency, and know better what is best for the people than the people themselves, like the natural aristocracy ideal of the founding fathers of the United States of America. The political elite therefore conceded to democracy, mixing it with some elements of political meritocracy,171 because officially, pure democracy would be too volatile.172 In the backstage, the meritocratic element was nothing more than a way to maintain the status quo as much as possible. It is certainly true that today’s democracy is more open than it used to be, especially in terms of who can run for office, opening up in ways similar to the antidiscrimination laws described in part one. Indeed, like antidiscrimination laws, democracy has slowly opened the competition to people who would otherwise have been barred from it – at least on paper – unlike authoritarian states, dictatorships etc., ‘the political weight of individuals in a democracy is not rigidly bifurcated by class or by ideological test’.173 However, if today’s representative democracy is open enough to leave the most ambitious and talented climbing the political and social ladder to become part of the elite, it does not question the very existence and reproduction of this elite in terms of class, religion, skin colour, gender etc., neither the unequal political power between citizens. In fact, democracy has been successful at giving the illusion that each citizen has a say and weight in politics equally, while ensuring that individual influence is in fact greatly limited. This does not only concern elections. Mueller is right that if citizens are more or less equal when it comes to voting only, ‘the political importance of an individual is not very significantly determined by this circumstance, and therefore political inequality effectively prospers: some people are, in fact, more equal than others. A store clerk has the same weight in an election as the head of a big corporation or a columnist for the Washington Post, but it would be absurd to suggest they are remotely equal in their ability to affect and influence

Ibid. Ahmed (2013). 170 Ibid. 171 Wooldridge (2021), 154–55. 172 Ibid 351. 173 Mueller (1992), 998. 168 169

502  Research handbook on the politics of constitutional law government politically’.174 Representative democracy ‘does not empower all equally’175 and implies by definition inequality. It made democracy acceptable precisely because ‘privileged people have generally been able to preserve their advantages under it’.176 Mueller observes that ‘in addition, once democracy was tried out, it became clear that voters were inclined to identify (in Jefferson's terms) “virtue and talents” with “wealth and birth”’.177 Merit, attached to effort and talent – translated today into diplomas – and money, helps political leaders objectify and legitimatise their power and privileges, as well as providing people with the illusion that they participated in choosing them. Yet, representative democracy discriminates by definition between those who have access to power and those who have not.178 Leaders are meritorious, or at least, are successful in making people believe that they are meritorious (and persuade themselves that they are that too). Along the same lines, although the meritorious character of rulers and more generally of the political elite is far from something new, reproduction of privileges and power through diplomas and the distortion of merit to make it ‘fit’ a small group of privileged is.179 Today, in Western Europe and in the US, there is a clear political domination by the most educated citizens. The figures are appalling as in the example of 2019 Boris Johnson’s cabinet, 2/3 of which went to private schools and almost half was educated at Oxford or Cambridge University.180 Mark Bovens and Wille Anchrit call it a ‘diploma democracy’, democracy ruled by those with the highest formal qualifications,181 a nascent political meritocracy. Those with no university diplomas are preoccupied with other priorities than their rulers whether it comes to immigration, unemployment, welfare, crime etc. and call for the attention that populists – also subgroup of the meritocrats – give them (or at least pretend to).182 Enouncing and studying the reasons behind this gap between the elite and the ordinary citizen would go beyond the scope of this article and many excellent works have done so.183 This text focusses rather on the idea that merit plays a central role in this ‘diploma meritocracy’ – united with money. Merit expressed through diplomas gives those in power the illusion that they have earned their success: whether Oxbridge, the Ivy League or ENA, today’s leaders, like their predecessors,184 persuade themselves that they have deserved every single success based on their merits. The United States for example, started with the Jacksonian illusion ‘that he earned every success on the basis of unvarnished merit, despite the fact that he was always looking for patronage and preferment’.185 It was then followed up by the interbreeding of the so-called Ibid. Landemore (2020), 25. 176 Ibid, 1001. 177 Ibid, 998. See also: Morgan (1988), 147–48. 178 Landemore (2020), 26. 179 However, already in the past Merit was distorted in order to make sure than the unwelcome talented students would not make their way, especially the Jews, has been excellently documented by Karabel for some of the Ivy leagues schools: Karabel (2005). 180 Sutton Trust Cabinet Analysis (2019). 181 Bovens and Anchrit (2017). 182 Cramer (2016). 183 Ibid. 184 Wooldridge explains that ‘Jackson persuaded himself that he earned every success on the basis of unvarnished merit, despite the fact that he was always looking for patronage and preferment’: Wooldridge (2021), 179. 185 Ibid, 178. 174 175

The constitutional politics of merit  503 Brahmins,186 the creation of offices in exchanges of votes,187 and reign of oligarchs188 in addition to the ‘corruption of politics through money and ethnic voting’.189 Today’s democracies have become a world of winners and losers: success is evaluated based on a hyper-conformity standard in terms of education or economic success, as in Singapore, the ‘land of intellectual one-upmanship – dropping names about which elite institutions you attended and what scholarships you won – rather than intellectual creativity. Conformity is more important than originality’.190 Both diplomas and market profits are presented and perceived as the fruits of purely individual responsibility, achievements that are earned. An informed reader would argue that this is not real meritocracy but rather the reproduction of privileges and plutocrats:191 the trap192 or tyranny193 of meritocracy rather than true meritocracy, as proposed by the UK Meritocratic Party, which seeks the removal of the power elite from affairs that affect the livelihood of the citizens of the United Kingdom and the world and would favour hard work, talent and entrepreneurship,194 without realising the ironic contradiction inherent in this: the power elite is the one considered hard working, talented and entrepreneurial. Merit and meritocracy are based on assimilation and uniformity in terms of achievements and allow the reproduction of a certain elite which is open to those who can shine by conforming. More fundamentally, one should consider whether merit through diplomas as it is done today in politics elevates or rather undermines democracy in general. 3.3

Merit in Politics, Hindrance to Democracy

In the two previous sections, I have shown that if democracy per se appears a non-meritocratic enterprise, merit plays an important role in allowing the rulers to remain in power with the illusion that they deserve their success, which is today mainly based on diplomas – the diploma democracy. If our contemporary democracies do not need much to function in the thin understanding of equal participation, we could wonder whether the merit and meritocratic elements – in their contemporary conception – elevate democracy or rather undermine it. My starting point is not to find an alternative to representative democracy, a quite popular and essential enterprise nowadays, but rather to examine whether merit is an important factor for the success of unflawed democracies. Indeed, meritocracy or merit are worth incorporating into democracy only to the extent that they actually serve a vision of democracy involving a democratic culture which is more than just a majority rule. Increasingly, it has been argued that Western democracies could be improved by the incorporation of more meritocratic institutions and practices.195 Political meritocracy which would imply a natural aristocracy, an aristocracy

186 In this vein, Oliver Wendell Holmes declared ‘I go (always other things being equal) for the man who inherits family traditions and the cumulative humanities of at least four or five generations.’ Holmes (1857), 48–57. 187 Wooldridge (2021), 183 188 Fishkin and Forbath (2022). 189 Wooldridge (2021), 182. 190 Ibid, 325. 191 Landemore (2020), prologue, xiv. 192 Markovits (2019). 193 Sandel (2020). 194 The UK Meritocracy Party – Constitution (Undated), point 2.8. 195 Bell (2015); Wooldridge (2021); Berggruen and Gardels (2012).

504  Research handbook on the politics of constitutional law of talents, is en vogue, yet it does not appear to be a good candidate to foster democracy and develop a democratic culture, quite the opposite. First, it seems quite obvious that in any kind of aristocracy, the best – the aristos – are in power – kratia, and whether qualification as being best is based on blood, land or talent per se does not mean that it is geared towards and defends a democratic culture, quite the opposite in fact. John Adams famously put that whatever forms it endorses ‘aristocracy is the monster to be chained yet so chained as not be hurt, for he is a most useful and necessary animal in his place. Nothing can be done without him’.196 Certainly, Adams believed that ‘a body of men which contains the greatest collection of virtues and abilities in a free government is the brightest ornament and glory of the nation’, ‘these are the few ‘in whom all these advantages of birth, fortune, and fame are united. These sources of inequality, which are common to every people, and can never be altered by any, because they are founded in the constitution of nature’.197 For Adams, any aristocracy, even a ‘natural’ one, however indispensable, is a danger for democracy. He insisted on the fact that intelligence and virtue are not synonymous: ‘simple intelligence has no essential association with morality. What connection is there between the mechanism of a clock or watch and the feeling of moral good and evil, right and wrong? A faculty or a quality of distinguishing between moral good and evil, as well as physical happiness and misery, that is, pleasure and pain, or, in other words, a conscience – an old word almost out of fashion – is essential to morality’.198 For Adams, natural aristocracy is not a sin in itself and might be a blessing, as long as it is counterbalanced. For him, the most talented men’s inclination to do ill made democracy necessary while, for Jefferson, men’s talents precisely made democracy possible.199 Macedo contends that the founders were fundamentally correct in believing in a considerable delegation of power through direct electoral accountability which permitted the combination of the virtues of democratic and meritocratic rule.200 Still, at that time, ‘the representative systems we now call “democracies” were initially intended as anything but democratic’.201 It was rather a ‘a form of elite rule’202 and tended to be aristocratic. In this vein, meritocracy seems hardly reconcilable with a democratic ideal. Second, meritocracy per se has downsides likely to negatively impact democracy and which precisely cannot necessarily be balanced through any accountability mechanisms, the main one being calcification of the diploma elite, which tends to overlap with the economic elite including in India, the United States and Singapore. Whether in non-democratic states or meritocratic democracies, the same families end up in the best universities and are on the list of scholarship winners and office-holders, a calcified entre-soi. Too much economic and political power is concentrated in too few hands serving their own interests, generating and perpetuating a status quo for the rest of the population, while the wealth and diplomas of the most fortunate is on an endlessly growing curve – the elephant’s trunk becomes always bigger.203 In the United States, this economic and diploma democracy is slowly turning into an oligarchy, which Joseph Fishkin and William Forbath are right to call the ‘threat to the American repub 198 199 200 201 202 203 196 197

Adams (1810). Adams (1787), Works 4:381–82, 391–98, 413–15; 5:488. Adams (1810). Costopoulos (1990). Macedo (2013). Landemore, 3. Macedo (2013). Milanović (2018). See the update by Alvaredo et al. (2017).

The constitutional politics of merit  505 lic’.204 The authors argue that this concentration of power in the hands of a few is in fact not compatible with the Constitution, looking back to the American constitutional tradition from Jackson to Roosevelt which was precisely committed to the break-up of the monopoly power of an economic aristocracy.205 Fishkin’s and Forbath’s argument echoes Arendt’s criticism of the United States representative political system: the American system is oligarchic in that ‘public happiness and public freedom have again become the privilege of a few’206 while it does not manage to secure popular welfare and private happiness anymore. This calcification of the elite can be diagnosed with what Landemore calls an ‘enclosure of power’207 in representative democracy, whether at national or supranational levels revealing the dynastic nature of democracy, with a self-perpetuating political power.208 Third, leaving aside the calcification generated by this natural aristocracy, it is not quite certain whether these meritocrats and their skills and capital are better or even good for democracy. Taking the example of the United States, in The Best and the Brightest written in 1972, David Halberstam argued that the Yale or Harvard meritocrats that Kennedy’s government (leaders in industry, academics and intellectuals) brought into the administration, did worse for the United States, including the disastrous Vietnam war, than its predecessors with much less meritocratic credentials. Sandel considers that between 1980 and today, meritocrats have not governed very well, either bringing ‘stagnant wages for most workers, inequalities of income and wealth not seen since the 1920s, the Iraq War, a nineteen-year, inconclusive war in Afghanistan, financial deregulation, the financial crisis of 2008, a decaying infrastructure, the highest incarceration rate in the world, and a system of campaign finance and gerrymandered congressional districts that makes a mockery of democracy’ and reducing the common good in economic matters.209 Of course, the assessment of the meritocrat’s track-records is a pandora’s box as it depends on what we take into account when appreciating these positive or negative achievements: life expectancy, education, wages, inequalities, campaign finance, pollution level, wars etc. However, interestingly, if we limit our assessment of the role of meritocracy in the stabilisation of democracy and the fight against authoritarianism – an understudied field – David Andersen has showed that impartiality and effective bureaucracy are a much more important stabilisers of democracy than meritocracy, finding empirical support in comparative-historical analyses in Europe.210 Moreover, recent innovations in places like Iceland and Finland which reinvent democracy by including citizens in the decision-making process have shown how much citizens ‘can be remarkable sources of arguments, information, and even solutions when properly incentivized and mobilized’.211 The belief that a meritorious technocrat and/or the rich political elite know what is best for the ‘common good’ is simply a mirage. In that vein, Landemore argues for a model of open democracy as the ‘ideal of a regime in which actual exercise of power is accessible to ordinary citizens via novel forms of democratic representation’.212 Fishkin and Forbath (2022). Ibid. 206 Arendt (1979); Sitton (1987). 207 Landemore (2020), 3. 208 E. Dal Bó, P. Dal Bó, and Snyder 2009. See also Landemore (2020), 3. 209 Sandel (2020). 210 Andersen (2021). 211 Landemore (2020). 212 Ibid, Prologue, xviii. 204 205

506  Research handbook on the politics of constitutional law Fourth and importantly, the concentration of power into the hand of an intellectual and economic elite makes this elite feel entitled to it and to their position, engendering arrogance towards ordinary citizens.213 This arrogance feeds hubris,214 especially as regards the feelings of those who are trapped in a perpetual status-quo or who even experience deterioration in their lives: after all the meritocratic society tells them that they are responsible for it. Certainly, some of the greatest, such as Rousseau, warned of this resentment a long time ago: ‘if we have a few rich and powerful men on the pinnacle of fortune and grandeur, while the crowd grovels in want and obscurity, it is because the former prize what they enjoy only in so far as others are destitute of it; and because, without changing their condition, they would cease to be happy the moment the people ceased to be wretched’.215 In 1995, Christopher Lasch already worried of this American elite betraying democracy by revolting against the Americanism of the mass.216 Sandel also shares that point of view, considering that ‘the reign of technocratic merit has reconfigured the terms of social recognition in ways that elevate the prestige of the credentialed, professional classes and depreciate the contributions of most workers, eroding their social standing and esteem. It is this aspect of technocratic merit that contributes most directly to the angry, polarized politics of our time’.217 Indeed, in past years, the ‘enclosure power’ of our electoral democracies has shown that there are many blind spots and perspectives that are not taken into account as social movements and struggle to put in place sustainable changes: ‘Representative democracy, in short, is often not as smart and capable as the sum of its citizens’.218 Finally, many ordinary citizens – usually lower middle class – in backsliding democracies and elsewhere, have and voice – by whatever means are left to them – their sense that their own interests are not taken into account, with the gilet jaune movement in France being a revealing example of this discontent. Today’s backlash against the political elite is a clear expression of this resentment, feeding the authoritarian and the populist, and endangering democracies. Landemore argues: ‘The silver lining of otherwise disenchanting events is that they tap into an obvious desire to gain or regain control and wrest power from runaway elites, seen as no longer, not sufficiently, or not at all responsive to the wishes of the population’.219 Interestingly, this question is not limited to the political sphere but to all fields likely to have an impact on their daily lives and which are overrun by the intellectual elite. Adopting a critical view of Behavioural Economics ‘based on economists’ private, undefended, and unusual moral and political preferences’, Zachary Liscow and Daniel Markovits propose to democratise it to empower ordinary citizens ‘to understand their own biases and to get what they want when they understand themselves’, to therefore combine ‘technical expertise with citizens’ own views’, which politics and economics, in diploma democracies, have failed to do so far.220

Sandel (2020). Ibid. 215 Rousseau (1755). 216 Lasch (1996). See also Rorty (1998). 217 Sandel (2020), 31–32. 218 Landemore (2020), 8. 219 Ibid (2020), Prologue, xiii. 220 Liscow and Markovits (2022). 213 214

The constitutional politics of merit  507

4. CONCLUSION Merit as a governing principle is far from being a new phenomenon and is intrinsically linked to the idea of justice. In this chapter, I argued that merit constitutes an important criterion in determining how public and social goods, offices, power, legal recognition and citizenship ought to be shared, attributed or distributed. Merit governs contemporary societies through mainly talent and effort, and money. In this respect, I showed that the way merit impacts constitutional politics is likely to raise important tensions with the principles of equality and democracy, two backbones of constitutional justice. First, merit is usually regarded as the heart of the modern conception of equality, equality of opportunity, especially in light of antidiscrimination laws. Certainly, merit and meritocracy made hierarchies more porous. However, it did not suppress them, quite the opposite: merit is nothing but an ‘adaptative transformation of social hierarchies,221 a smokescreen for class, race and gender privileges which is at odds with the modern conception of the principle of equality. Going one step further, even in the illusory instance of ‘pure’ merit, stripped of any social hierarchies, I showed that merit is not reconcilable with the principle of equality: it is a hegemonic imperative which shames and excludes those at the bottom of the social ladder especially people who are less courageous, beautiful, energetic, or intelligent. Second, if merit has been at the heart of the crisis of democracy, whether to blame voters or to praise and legitimise those in power, it is not per se necessary to maintain and elevate democracy. Rather, it serves at maintaining a certain elite into power: today’s diploma democracy. Interestingly, merit and especially diplomas do not seem to make better rulers. In fact, merit and political meritocracy tend to damage democracy. In short, any democratic society based on an ideal of equality cannot possibly base its conception of justice on merit without damaging its egalitarian and democratic foundations.

221

Siegel (1996–1997).

508  Research handbook on the politics of constitutional law

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510  Research handbook on the politics of constitutional law Ganty, Sarah. (2021). ‘Poverty as Misrecognition: What Role for Anti-discrimination Law in Europe?,’ Human Rights Law Review 4: 962. Glaeser, Edward L., Giacomo A.M. Ponzetto & Andrei Shleifer. (2007). ‘A. Why does democracy need education?,’ J Econ Growth 12: 77. Gould, Stephen Jay. The Mismeasure of man (W.W. Norton & Company, 1981). Harell, Allisson, Stuart Soroka & Shanto Iyengar. (2016). ‘Race, Prejudice and Attitudes Toward Redistribution: A Comparative Experimental Approach,’ European Journal of Political Research 55: 723. von Hayek, Friedrich A. The Constitution of Liberty (University of Chicago Press, 1978). Heiserman, Nicholas & Brent Simpson. (2017). ‘Higher inequality increases the gap in the perceived merit of the rich and poor,’ Social Psychology Quarterly 80: 243. Heller, Nathan. ‘What Happens When an Élite Public School Becomes Open to All?’ The New Yorker (7 March 2022) https://​www​.newyorker​.com/​magazine/​2022/​03/​14/​what​-happens​-when​-an​-elite​-public​ -school​-becomes​-open​-to​-all. Herre, Bastian. (2022). ‘The World has Recently Become less Democratic’ Our World in Data, https://​ ourworldindata​.org/​less​-democratic. Herrnstein, Richard J. The Bell Curve Debate: History, Documents, Opinions (Times Books, 1995). Hobbes, Thomas. The Leviathan (1651). Hobolt, Sara B. (2016). ‘The Brexit Vote: a Divided Nation, a Divided Continent,’ Journal of European Public Policy 23: 1259. Holmes, Oliver Wendell. (1857). The Autocrat of the Breakfast-Table, https://​www​.theatlantic​.com/​ magazine/​archive/​1857/​11/​the​-autocrat​-of​-the​-breakfast​-table/​532299/​. Hudson, Liam. Contrary Imaginations: A Psychological Study of the English Schoolboy (Routledge, 1966). Isailovic, Ivana. (2021). ‘Gender Equality as Investment: EU Work-Life Balance Measures and the Neo-Liberal Shift,’ Yale J. Int'l L. 46: 277. Jaquet, Françoise. Les transclasses ou la non reproduction (PUF, 2014). Kamin, Leon J. The Science and Politics of I.Q. (1st edition Lawrence Erlbaum Associates, Inc., 1974; 2nd edition Routledge, 2009). Kane, John & Haig Patapan. The Democratic Leader: How Democracy Defines, Empowers and Limits its Leaders (Oxford University Press, 2012). Karabel, Jerome. The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale and Princeton (Houghton Mifflin, 2005). Kendi, Ibram X. How to be an antiracist (Penguin, 2019). Kett, Joseph. Merit, The History of a Founding Ideal from the American Revolution to the Twenty-First Century (Cornell University Press, 2012). Kochenov, Dimitry & Elena Basheska. ‘It’s All about Blood, Baby! The European Commission’s Ongoing Attack against Investment Migration in the Context of EU Law and International Law’ WP-22–161 COMPAS working Paper Series (Oxford University, 2022). Kunovich, Sheri & Kazimierz Slomczynski. (2007). ‘Systems of Distribution and a Sense of Equity: A Multilevel Analysis of Meritocratic Attitudes in Post-industrial Societies,’ European Sociological Review 23: 649. Landemore, Hélène. Open Democracy. Reinventing Popular Rule for the Twenty-First Century (Princeton University Press, 2020). Lasch, Christopher. The Revolt of the Elites and the Betrayal of Democracy (W.W. Norton and Company, 1996). Lemann, Nicholas. The Big Test: The Secret History of the American Meritocracy (Penguin, 1999). Liscow, Zachary D. & Daniel Markovits. (2022). ‘Democratizing Behavioral Economics.’ Yale Journal on Regulation 1274. Litter, Jo. (2017). ‘Meritocracy: the great delusion that ingrains inequality’ The Guardian, https://​www​ .theguardian​.com/​commentisfree/​2017/​mar/​20/​meritocracy​-inequality​-theresa​-may​-donald​-trump. Macedo, Stephen. ‘Meritocratic Democracy: Learning from the American Constitution’ in Daniel A. Bell and Chenyang Li (eds) The East Asian Challenge for Democracy: Political Meritocracy in Comparative Perspective (Cambridge University Press, 2013). Manin, Bernard. The Principles of Representative Government (Cambridge University Press, 1997).

The constitutional politics of merit  511 Mark, Clifton. ‘A belief in meritocracy is not only false: it’s bad for you’ (Princeton University Press, 2022), https://​press​.princeton​.edu/​ideas/​a​-belief​-in​-meritocracy​-is​-not​-only​-false​-its​-bad​-for​-you. Markovits, Daniel. The Meritocracy Trap: How America’s Foundational Myth Feeds Inequality, Dismantles the Middle Class, and Devours the Elite (Penguin, 2019). McDougall, William. Is America Safe for Democracy? (Charles Scribner’s son, 1921). Mercat-Bruns, Marie. Discrimination at Work: Comparing European, French, and American Law’ (University of California Press, 2016). Meyer-Sahling, Jan & Kim Mikkelsen. (2016). ‘Civil Service Laws, Merit, Politicization, and Corruption: The Perspective of Public Officials from Five East European Countries,’ Public Administration 94: 1105. Mijs, Jonathan J.B. (2021). ‘The paradox of inequality: income inequality and belief in meritocracy go hand in hand,’ Socio-Economic Review 19: 7. Milanović, Branko. Global Inequality: A new approach for the age of globalization (Harvard University Press, 2018). Mill, John S. Considerations on Representative Governments (1961). Miller, Dale E. (2015). ‘The Place of Plural Voting in Mill’s Conception of Representative Government,’ The Review of Politics 77: 399. Miller, David. Principles of Social Justice (Harvard University Press, 1999). Morgan, Edmund. Inventing the People: The Rise of Popular Sovereignty in England and America (W.W. Norton and Company, 1988). Mueller, John. (1992). ‘Democracy and Ralph's Pretty Good Grocery: Elections, Equality, and Minimal Human Being,’ American Journal of Political Science 36: 983. Mügge, Liza & Marlene van der Haar. ‘Who Is an Immigrant and Who Requires Integration? Categorizing in European Policies’ in B. Garcés-Mascareñas & R. Penninx (eds) Integration Processes and Policies in Europe (Springer, 2016). Müller, Jan-Werner. What is Populism (University of Pennsylvania Press, 2016). Mushkat, Roda. (2021). ‘From China’s “Political Meritocracy” to “Just Hierarchy”: the Elusive Search for a Viable Post-Democratic Governance Regime in the Era of Coronavirus,’ European Journal of Comparative Law and Governance 8: 304. Nielsen, Kay (1983). ‘Formulating Egalitarianism: Animadversions on Berlin,’ Philosophia 13: 299. O’Brien, Charlotte. (2016). ‘Civis Capitalist Sum: Class as the New Guiding Principle of EU Free Movement Rights,’ Common Market Law Review 53: 937. O’Cinneide, Colm. ‘Completing the Picture: The Complex Relationship Between EU Anti-discrimination Law and “Social Europe”’ in N. Countouris and M. Freedland (eds) Resocialising Europe in a Time of Crisis (Cambridge University Press, 2013). OECD Public Integrity Handbook, Chapter 7 – Merit, https://​www​.oecd​-ilibrary​.org/​sites/​270b68d2​-en/​ index​.html​?itemId​=/​content/​component/​270b68d2​-en. van Oorschot, Wim. (2006). ‘Making the difference in social Europe: Deservingness Perceptions among Citizens of European Welfare States,’ Journal of European Social Policy 16: 23. Pasquali, Paul. Héritocratie, Les élites, les grandes écoles et les mésaventures du mérite (1870–2020) (La découverte, 2021). Pew Research Center. (2020). ‘Amid Campaign Turmoil, Biden Holds Wide Leads on Coronavirus Unifying the Country,’ https://​www​.pewresearch​.org/​politics/​2020/​10/​09/​the​-trump​-biden​ -presidential​-contest/​. Pines, Yuri. The Everlasting Empire (Princeton University Press, 2012). Pojman, Louis. (1999). ‘Merit : Why Do We Value It?,’ Journal of Social Philosophy 30: 83. Reeskens, Tim & Tom van der Meer. (2019). ‘The Inevitable Deservingness Gap: A Study into the Insurmountable Immigrant Penalty in Perceived Welfare Deservingness,’ Journal of European Social Policy 29: 166. Reeskens, Tim & Wim van Oorschot. (2012). ‘Disentangling the “New Liberal Dilemma”: On the Relation between General Welfare Redistribution Preferences and Welfare Chauvinism,’ International Journal of Comparative Sociology 53: 120. Rennó, Lucio R. (2020). ‘The Bolsonaro Voter: Issue Positions and Vote Choice in the 2018 Brazilian Presidential Elections,’ Latin American Politics and Society 62.

512  Research handbook on the politics of constitutional law Ringelheim, Julie & Sarah Ganty. ‘Economic inequality and anti-discrimination’ in Iyolia Solanke, Colm O’Cinneide & Julie Ringelheim (eds) Handbook on EU antidiscrimination Law (Edward Elgar, forthcoming). Roex, Karlijn L. A., et al. (2019). ‘Attitudes towards income inequality: “Winners” versus “losers” of the perceived meritocracy,’ Acta Sociologica 62: 47. Romero, Teresa. (2022). ‘Leading candidates in voting intention for the 2022 presidential elections in Brazil as of August 2022, by educational attainment’, Statista, https://​www​.statista​.com/​statistics/​ 1308419/​voting​-intention​-presidential​-elections​-brazil​-education/​. Rorty, Richard. Achieving Our Country (Harvard University Press, 1998). Rousseau, Jean-Jacques. Discourse on the Origins and the Foundations of Inequality among Men (1755). Rustichini, Aldo & Alexander Vostroknutov. (2014). ‘Merit and Justice: An Experimental Analysis of Attitude to Inequality’ PLoS One 9(12): e114512. Sandel, Michael. The Tyranny of Merit, What’s Become of the Common Good? (Penguin, 2020). Scanlon, Thomas M. Why Does Inequality Matter? (Oxford University Press, 2018). Schadauer, Andreas. (2022). ‘The racialization of welfare support as means to further welfare state cutbacks – spillover effects in survey populations and media reports in Austria,’ Ethnic and Racial Studies 45: 308. Schmitter, Philippe C. & Terry L. Karl. (1991). ‘What Democracy Is, and What it Is Not,’ Journal of Democracy 2: 3. Schumpeter, Joseph A. Capitalism, Socialism and Democracy (Routledge 2003, first published in 1943). Siegel, Reva B. (1996–1997). ‘Why Equal protection no longer protects,’ Stan. L. Rev. 49: 1111. Siegel, Reva B. (1997). ‘“The Rule of Love”: Wife Beating as Prerogative and Privacy,’ Yale L.J. 105: 2117. Sitton, John F. (1987). ‘Hannah Arendt’s Argument for Council Democracy,’ Polity 20: 80. Smith, Jay. The Culture of Merit, Nobility, Royal Service, and the Making of Absolute Monarchy in France, 1600–1789 (Michigan University Press, 1996). Somek, Alexander. ‘Antidiscrimination and Decommodification’, University of Iowa Research Paper (University of Iowa, 2005). Somek, Alexander. Engineering Equality. An Essay on European Antidiscrimination Law (Oxford University Press, 2011). Stiglitz, Joseph E. The Price of Inequality: How Today’s Divided Society Endangers Our Future (W.W. Norton and Company, 2012). Sutton Trust Cabinet Analysis. (2019), https://​www​.suttontrust​.com/​our​-research/​sutton​-trust​-cabinet​ -analysis​-2019/​. Tawney, Richard Henry. Equality (first published in 1931; Rowman & Littlefield 1964). The UK Meritocracy Party – Constitution: objectives, https://​www​.ukmp​.org/​join. Tushnet, Mark & Bojan Bugaric (eds). Power to the People: Constitutionalism in the Age of Populism, Introduction (Oxford University Press, 2022). Tyson, Alec & Shiva Maniam. (2016). ‘Behind Trump’s Victory: Divisions by Race, Gender, Education’ Pew Research Center, https://​www​.pewresearch​.org/​fact​-tank/​2016/​11/​09/​behind​-trumps​-victory​ -divisions​-by​-race​-gender​-education/​. Varshney, Ashutosh. ‘Merit in the Mirror of Democracy: Caste and Affirmative Action in India’ in Tarun Khanna & Michael Szonyi (eds) Making Meritocracy Lessons from China and India, from Antiquity to the Present (Oxford University Press, 2022). Vassalos, Yiorgos & Corporate Europe Observatory. (2018). ‘Financial regulators and the private sector: permanent revolving door at DG FISMA’ Corporate Europe Observatory, https://​corporateeurope​ .org/​en/​power​-lobbies​-revolving​-doors/​2018/​04/​financial​-regulators​-and​-private​-sector​-permanent​ -revolving. de Vries, Karin. Integration at the Border. The Dutch Act on integration abroad and International immigration Law (Hart Publishing, 2013). Wacquant, Loïc. (2001). ‘The Penalisation of Poverty and the Rise of Neo-Liberalism,’ European Journal on Criminal Policy and Research 9: 401. Weihua, Liu & Zhang Xinwu. Harvard Girl (Writers Publishing House, 2000). Welfens, Nathalie. (2022). ‘“Promising victimhood”: contrasting deservingness requirements in refugee resettlement,’ Journal of Ethnic and Migration Studies.

The constitutional politics of merit  513 West, Robin. (1996). ‘Constitutional Fictions and Meritocratic Success Stories,’ Georgetown Law Faculty Publications and Other Works 11–85: 995. Woodrow, Wilson. (1887). ‘The Study of Administration,’ Political Science Quarterly 2: 197. Wooldridge, Adrien. The Aristocracy of Talent: How Meritocracy Made the Modern World (Penguin, 2021). Xie, Sha & Hui Li. (2019). ‘“Tiger mom, panda dad”: a study of contemporary Chinese parenting profiles,’ Early Child Development and Care 189: 284. Xuyun, Tan, et al. (2017). ‘Working for the Hierarchical System: The Role of Meritocratic Ideology in the Endorsement of Corruption,’ Political Psychology 38: 469. Yaffe, Gideon. (2016). ‘Desert of Wrongdoings,’ J Ethics 20: 149. Young, Michael. The Rise of the Meritocracy, 1870–2033: An Essay on Education and Equality (Penguin, 1958)

28. Minorities: a view from South Asia Kamala Sankaran1

The ‘minority question’ continues to pose a challenge to countries across the world. Legal provisions relating to individual rights and non-discrimination are seen to be insufficient, and special rights to minorities are often seen as necessary within national constitutions.2 More broadly, whether individuals or groups belonging to minority communities could be the subject-matter of international law, and if this went against the ‘universalist’ nature of human rights, have also been questioned.3 This chapter focuses on how the ‘minority question’ has shaped normative and political developments in the South Asian region, and the constitutional choices made. This is a region marked by large populations and great diversity. The post-colonial constitutions in this region have experimented with multiple responses to address their historically plural societies.4 These include the continuing recognition of religion-based personal laws, the use of federal and/or consociational devices to ‘manage’ multiple identities, the grant of special rights, including affirmative action, to minorities, and the grant of limited autonomy including exclusive rights over land and natural resources to certain communities. This chapter examines the politics surrounding the inclusion of minority rights within these constitutions and the choice of minority rights with a focus on India’s minority protection and affirmative action measures.5 The discussion also examines the politics surrounding the implementation of minority protection and the various amendments made to refine the rights available to minorities, while also noticing the power of judicial review in this region in determining the scope of these rights. The chapter concludes by examining the lessons, if any, that could be drawn from the South Asian experience.

Some portions of this chapter draw upon my research as a Visiting South Asian Research Fellow, School of Interdisciplinary Area Studies, Oxford University in 2010, and which I gratefully acknowledge. I am also grateful to the editors for their comments. Errors remain mine. 2 See for instance, Castellino (2011); Kymlicka (1997) (making a distinction between immigrants and national minorities); Kukathas (1998) (arguing for a liberal, indifferent state rather than one seeking to foster unity); Khan & Rahman (2011). 3 For a discussion on the ‘paradox of minorities as a constitutive Other of international law’ see Nijman (2012). Also see Macklem (2012), chs 5, 6. 4 Some countries in the region have adopted several constitutions since independence: Bangladesh – 1972, India – 1950, Nepal – 1948, 1951, 1959 1962, 1990, 2007, 2015; Pakistan – 1956, 1962, 1969, 1973; Sri Lanka – 1948, 1972 and 1978. Any references to the constitution of a specific country without reference to the year, indicates that the reference is to the current Constitution. See Chapter 24 by Chilton and Versteeg, as well as Chapter 15 by Georg Vanberg, Benjamin Broman and Christopher Ritter in this volume that illustrate how political imperatives have shaped the adoption of constitutional rights. 5 In their book Unstable Constitutions, Mark Tushnet and Madhav Khosla state ‘After reading the nation-specific studies, one observation is forced on us: in one way or another, the Indian experience looms large over constitutional discussions throughout the region.’ The greater coverage on India is mindful of this observation. Tushnet & Khosla (2015), 6. 1

514

Minorities: a view from South Asia  515

1.

MINORITY RIGHTS IN INTERNATIONAL LAW

The Permanent Court of International Justice (PCIJ) while interpreting the Greco-Bulgarian Convention, 1919 clarified what constituted a community, and implicitly, minority communities. The PCIJ stated that a community was ‘a group of persons living in a given country or locality, having a race, religion, language and traditions of their own and united by this identity of race, religion, language and traditions in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, ensuring the instruction and upbringing of their children in accordance with the spirit and traditions of their race and rendering mutual assistance to each other.’6 This PCIJ advisory opinion dealt with minority communities that had distinct characteristics based on race, religion, language and traditions. The jurisprudence of the PCIJ was developed in the context of nation-states in Europe, with their fairly homogenous population across race, religion and language, and where migration led to an influx/decrease of the ‘Other’ migrant groups. The choice of characteristics to identify a (minority) community was confined to race, religion, language, and what was broadly termed ‘traditions’. Other characteristics centred around caste or tribal membership, or regional differences that are frequently seen in countries of what would now be termed the global South were not included as grounds to identify a minority community. The PCIJ in a subsequent opinion noted that such a minority community would need to preserve its cultural identity or religion, and schools were identified as an important institution for protection of their cultural identity.7 No other protective measures, such as the right to a territory (homeland), or an adequate presence in public educational institutions or in public employment through a system of affirmative action, or the right to receive state largesse in the form of welfare benefits were identified by the PCIJ. These opinions of the PCIJ were not reflected in any international instrument in the succeeding decades. The lack of a consensus in identifying the defining characteristics of a minority community could be one reason why the Universal Declaration of Human Rights (1948) did not use this term.8 The International Covenant on Civil and Political Rights (ICCPR) uses the term but does not provide a definition of minorities. Article 27 of the ICCPR provides that in those States in which ethnic, religious or linguistic minorities exist, persons belonging to these minorities shall not be denied the right, in community with the other members of their

6 Advisory Opinion, The Greco-Bulgarian ‘Communities’ , PCIJ Rep Series B No 17 (1930) at 21. Available at https://​www​.icj​-cij​.org/​public/​files/​permanent​-court​-of​-international​-justice/​serie​_B/​B​_17/​ 01​_Communautes​_greco​-bulgares​_Avis​_consultatif​.pdf. Commentators have remarked on the ‘objective’ (race, religion, language and tradition) characteristics as also the ‘subjective’ criteria (sentiment of solidarity and desire to preserve traditions) in this advisory opinion. See for instance, Alam (2015). 7 Minority Schools in Albania, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64 (Apr. 6) where it held that the Albanian Declaration (1921) granted their nationals ‘belonging to racial, linguistic or religious minorities the right to maintain, manage and control at their own expense or to establish in the future charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein.’ Also see Zyberi (2013). 8 Commentators notes that India (along with China and the UK) sided with African countries that did not want the matter of linguistic minority rights to interfere with plans for ‘political unification and economic centralization’ to successfully seek the deletion of the articles on minorities in the text. See Tyagi (2003), 13.

516  Research handbook on the politics of constitutional law group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. In fact, as Thornberry notes, ‘The opening phrase 'In those States in which … minorities exist' almost invites states to declare that they have no minorities’.9 In its General Comment on Article 27, the Human Rights Committee noted that this Article ‘establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant.’10 The United Nations Minorities Declaration, adopted by consensus in 1992, refers to minorities, in its Article 1, as being based on national or ethnic, cultural, religious and linguistic identity.11 While this Declaration spells out the characteristics of a minority community, it does not specify whether it is sufficient that such an identified group is less than 50 per cent of the total population in order to be categorised as a minority community. Francesco Capotorti, Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, had earlier chosen to identify minorities, not merely on their numerical strength, but also on the power/dominance they wielded in a country.12 This approach of having multiple criteria to identify a minority community i.e., a quantitative test (less than half of the population); a distinct and identifiable characteristic (religion, ethnicity, language etc.); and a qualitative test (based on power wielded or subjected to discrimination/oppression) has not been universally accepted. More recently, the Special Rapporteur on Minority Issues, in his 2019 report to the UN General Assembly, which surveyed the historical development of the term, clarified that the broad nature and scope of the term minority, as used in Article 27 ICCPR, guarantees certain rights to all those in a State who are members of a linguistic, religious, or ethnic minority, with no other requirement or precondition.13 A purely numerical

Thornberry (2002), 518. General Comment No. 23: The rights of minorities (Art. 27) : 08/04/94. CCPR/C/21/Rev.1/Add.5, General Comment No. 23. (General Comments) available at https://​indianlaw​.org/​sites/​default/​files/​ resources/​UN​%20OHCHR​%20Comments​%20on​%20Article​%2027​.pdf. 11 Article 1 states: 1. States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity. 2. States shall adopt appropriate legislative and other measures to achieve those ends. Available at https://​www​.ohchr​.org/​en/​p​rofessiona​linterest/​pages/​minorities​.aspx. The ‘ethnic’ category in the description of minorities is broad enough to capture distinctions based on caste, tribe and race. 12 ‘A group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members – being nationals of the state – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.’ Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (1979) UN Doc E/CN.4/Sub.2/384/Rev.1, 96. 13 Report of the Special Rapporteur on Minority Issues, A/74/160 (Seventy-fourth session, Item 72 (b) of the preliminary list, 2019) available at https://​ap​.ohchr​.org/​documents/​E/​GA/​report/​A​_74​ _160​.pdf. Para 59 recommends that an ‘ethnic, religious or linguistic minority is any group of persons which constitutes less than half of the population in the entire territory of a State whose members share common characteristics of culture, religion or language, or a combination of any of these. A person can freely belong to an ethnic, religious or linguistic minority without any requirement of citizenship, residence, official recognition or any other status.’ Several other international instruments also deal with the rights, including linguistic rights, of minorities such as the Convention on the Rights of the Child (1989), Convention on the Rights of All Migrant Workers and Members of their Families (1990), and ILO Conventions No. 107 and 169. 9



10

Minorities: a view from South Asia  517 test appears to suffice internationally for identifying a minority along the axes of language, religion and ethnicity.

2.

ADDRESSING PLURALISM IN SOUTH ASIA

The understanding of which group could qualify as a ‘minority’ has not been uniform, and reflects the political process unfolding historically in each region and country. The historical development of the nation-state, with its implicit emphasis on homogeneity, and therefore assimilation, had shaped the initial development of international law and domestic doctrine in Europe and the global north.14 Yet, international law, which was initially seen as an inter-State normative system, has gradually addressed the concerns of groups and communities that were in a minority within a State. In recent years, scholars of the global South have questioned the linear and uniform trajectory ascribed to modernity, and pointed out that constitutional and normative structures may need to deliberately depart from received models to accommodate the specific historical contexts of post-colonial countries.15 Thus, for instance, Bajpai points out that while ideas of multiculturalism address demographic changes driven by migration, the idea of pluralism better explains differences among communities who have historically co-existed in Asia and Africa.16 South Asia, in particular, is seen as largely a community-based society.17 Writing about Pakistan, Hamza Alavi notes that ‘Whereas in Europe, nations were constituted into states, in post-colonial societies the problem is inverted: to transform states into nations.’18 Others have pointed out that the idea of a State-nation rather than a nation-state would be more appropriate in diverse societies. Such a framing helps explain the legal framework and institutions that emerged in such post-colonial societies that do not privilege any group, but instead respect and protect ‘multiple but complementary sociocultural identities.’19 Religious and linguistic identities have been most contentious in South Asia. Most constitutions in that region have addressed their diversity by introducing non-discrimination clauses to ensure equality of treatment, and the creation of a non-prejudicial environment within which individuals can flourish. However, the idea of a secular State, with its wall of separation between state and religion, has not been uniformly adopted in the region. Barzillai notes that liberalism ‘pretends to privatise religion’20 and has preferred to deal with individuals shorn of all religious identities. Yet, the recognition of minority rights brings back such identities into focus. As a result, there is considerable tension between individual rights and membership of a community, which Macklem refers to as the ‘tenuous relationship between minority membership and universal value’.21 Societies and political systems that do not ‘have a preference

For an account of the development of international law and the role of minorities as the constitutive ‘Other’ see Nijman (2012). Also see Fazal (2015), ch 1, and Shahabuddin (2012). 15 See for instance, Chakrabarty (2008) and Kaviraj (2005). 16 Bajpai (2019). 17 Nandy (2010). 18 See Alavi (1989), 1527. 19 Stepan, Linz & Yadav, (2011), 4 (emphasis in the original). 20 Barzillai (2004), 394. 21 Macklem (2008), 533. Also see generally Benhabib (2002). 14

518  Research handbook on the politics of constitutional law of individual rights as the exclusive, universal, and absolute good’,22 are often in conflict with the liberal ‘project’. Constitution-making in the region has also grappled with the level of rights to be afforded to diverse groups, including minorities. There are several similarities between minorities and Indigenous people. Yet, both in international law as well as in the constitutions of countries in the South Asian region, they have been treated differently, and the nature and extent of their rights, and the degree of autonomy provided have differed.23 From British colonial times, the north east of India as well as the northwest province of Pakistan where there is a large tribal population (designated as scheduled tribes) have had special rights that recognised the limited extent of central colonial rule. While these were not a result of treaties,24 but arrangements made to suit the colonial administration, they were continued after colonial rule ended. For instance, the constitutional Sixth Schedule areas in India provide a greater latitude in legislative and administrative functioning and also specific rights over land in certain tribal dominated states and regions. Historical developments and the need to maintain autonomy over administrative functioning has resulted in a wider area of accommodation of difference as compared to the rather more restrictive right to establish and administer educational institutions granted to minority groups. Thus, these groups in the ‘sixth schedule’ north east India, have not been treated as ‘minority’ groups and nor are recognised as ‘Indigenous peoples’.25 Pakistan, too, continued with its special arrangements in the tribal areas of Balochistan and the (former) North West Frontier Province. Pakistan had been founded on the conception of the country as ‘One Unit’ (1956, 1962 Constitutions). The break-away of Bangladesh in 1971 resulted in the 1973 Pakistan Constitution recognising provinces based on ethnic/cultural groupings. These developments acknowledged that while political mobilization around religion could create a ‘emergent sense of ‘community’26, the intersectionality of language and region continued to persist. The recent amendments renaming the North West Frontier Province as Khyber Pakhtunkhwa and merging tribal areas with it, are signs of greater ‘ethnofederalism’27 The re-organising of states in India along linguistic lines in 1956 adopted the federal route to recognise diversity and create ‘ethnolinguistic’ states (though linguistic minorities were created/ continued within these newly formed states). The federal route has been used in both these countries to ‘manage’ such diversity, even as tribal and ethnic groups have not been recognised as ‘minorities’ in their constitutional scheme.

3.

IDENTIFYING MINORITIES

The opinions of the PCIJ (1930, 1935) discussed earlier were to have a significant impact on post-colonial constitutions in South Asia. The Constitution of India (1950), and later Pakistan (1956, 1973), Sri Lanka (1978), and Nepal (2015) provided specific protections to minorities, Barzilai (2004), 397. For the differences in approach to minority rights and those of indigenous people, see Castellino (2010). 24 The absence of treaties in the case of colonial India contrasts with the numerous treaties entered into with the indigenous people in Canada. See Macklem (2018). 25 See Béteille (1998); Kingsbury (1998). 26 Alam (2010). 27 Khan (2019), 201–21; Adeney (2012). 22 23

Minorities: a view from South Asia  519 with Nepal alone defining the term. The Supreme Court of India has continued to treat the two advisory opinions of the PCIJ as offering some guidance to its understanding of what is a ‘minority’.28 During the drafting, and in the subsequently adopted Indian Constitution, minorities were identified on the basis of religion and language. (Neither race not caste was a ground for identification of minorities).29 The right to enjoy a distinct language, script or culture (cultural rights) was granted to any ‘section’ of the citizens. The separation of cultural rights, available to any section of citizens from the specific rights granted to minorities served to delink culture, or language, from being linked to any religion. Further, cultural rights went beyond an individual right to speech and expression, and were also recognised as a group right. The limiting of minority rights to only those communities that had a distinct religion or language (not traditions as identified by the PCIJ) was also to make minority identification relatively easier since the Indian census regularly collected data on religion and language. The rights granted to minorities in India include the right to establish and administer educational institutions of their choice. During the initial debates, marginalised groups and minorities were considered for special rights in representation (quotas in electoral seats, posts in government). However, the events of the partition (which was taking place contemporaneously), and the creation of two states, India and Pakistan, led to shifts in the debates within the Constituent Assembly in India, as also in Pakistan.30 The Indian Constitution separated the kinds of rights/special measure available for marginalised groups such as ‘backward’ classes of citizens, including ‘scheduled’ castes and tribes, religious and linguistic minorities, and lastly those living in the ‘sixth schedule’ areas discussed earlier. Eventually, religious and linguistic minorities were provided with the more limited protection of setting up educational institutions to retain and foster their group rights.31 The Indian Constitution does not define a minority but provides that minority groups have constitutional rights to suo moto establish and administer educational institutions.32 Hanna Lerner refers to the strategy of adopting ‘ambiguous provisions’ in the constitutional text ‘in order to avoid making difficult, unequivocal choices with respect to the most contested foundational issues’.33 Other terms in the Constitution which have not been defined such as ‘backward classes’ or ‘religious denomination’ have been subsequently refined and operationalised through court decisions, allowing for a greater judicial role in constitutional matters. 34

28 See for instance the 11-judge bench decision on minority rights under the Constitution, TMA Pai Foundation v. State of Karnataka (2002) 8 SCC 481, the 9-judge bench also considering minority rights in The Ahmedabad St. Xavier’s College Society v. State of Gujarat (1974) 1 SCC 717 among others. 29 See Waughray (2010). 30 The controversial two-nation theory and the subsequent partition has dominated political events in this region. For an account of this turbulent period that preceded partition and the strategy of the Muslim League, see Jalal (1994). 31 Jha (2003). 32 Article 30 (1), Constitution of India. The National Commission on Minorities makes the determination of minority groups. 33 Lerner (2011), 110. She refers to the clauses relating to a uniform civil code and a national language. 34 As the rich corpus of case law pertaining to the identification of ‘backward castes’ in Indian indicates, almost every notification or law dealing with reservation/quotas for such groups in government jobs or admission in educational institutions, gets constitutionalised over the issue of whether a group is ‘backward’ or not.

520  Research handbook on the politics of constitutional law By and large, the Indian courts have used a simple numerical test to determine if a group is a minority or not. However, in a case dealing with an affluent group (the Jains), the Supreme Court doubted whether such groups should be treated as minorities, and stated, ‘If it is found that a majority of the members of the community belong to the affluent class of industrialists, businessmen, professionals and propertied class, it may not be necessary to … extend any special treatment or protection to them as minority.’35 Economic or political dominance as a test to identify a minority group allows considerable leverage for judicial scrutiny, and may account for most countries in this region (with the exception of Nepal) adopting a numerical test for identification of minorities. The Nepal Constitution of 2015 defines the term minority and provides for ‘special arrangements’ to be made by the State for minorities.36 Not only does it use a quantitative test of determining the minority, but it also states that the characteristics to be recognised for identification as a minority should be ethnicity, religion, and language. It further adds (in a manner reminiscent of Capotorti’s formulation) that the group must be subjected to discrimination and oppression.37 This additional qualitative criterion is not surprising, given the large number of ethnic groups in Nepal, often called the land of minorities. The identification of a minority community, and the question whether all persons sharing such religious, linguistic or ethnic features also retain their individual rights, are hard questions to answer. International law scholars have noted that ‘rights of persons belonging to minorities are individual rights, even if they in most cases can only be enjoyed in community with others.’38 Constitutional courts are often called upon to ‘balance’ such individual rights and rights of religious groups. The tendency to essentialise a minority community, based on its defining characteristics, often obscures the position of the individual within the group as judicial decisions from India indicate. The courts’ interpretation of the constitutional text that provides freedom to religious groups to manage their own affairs alongside the individual’s freedom of conscience, may privilege the position of the religion, or the religious head, over the rights of the individual believer or reformer.39 However, there are also instances where the Courts have chosen to protect women’s rights to non-discrimination in the face of religious

35 Bal Patil v. Union of India (2005) 6 SCC 690. The Court was dealing with the writ seeking the declaration of Jains as a minority under the National Commission on Minorities Act 1992. 36 Article 306(1)(a) states: ‘(1) Unless the subject or the context otherwise requires, in this Constitution, (a) “minorities” means ethnic, linguistic and religious groups whose population is less than the percentage specified by the Federal law, and includes groups that have their distinct ethnic, religious or linguistic characteristics, aspirations to protect such features and subjected to discrimination and oppression …’. 37 The Constitution of Nepal mandates the setting up of various Commissions, including one each for Dalits, Indigenous Nationalities, Madhesis, Tharu, and a (general) Commission for Inclusion. 38 Eide, Asbjørn. Final text of the Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, E/CN.4/Sub.2/AC.5/2001/2 at para 15. Also, see Castellino & Gilbert (2003). 39 See for instance, the Indian Supreme Court in Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay, AIR 1962 SC 853 (where a law invalidating the power of a religious head to excommunicate followers was struck down as interfering with the right of a religious denomination to manage its own affairs in matters of religion). The matter has been referred to a 9-judge bench in 2023.

Minorities: a view from South Asia  521 practices that disadvantage women, or those belonging to particular sects/castes/tribes, among the followers.40

4.

RELIGIOUS DIVERSITY

Religion and religious differences have dominated political events in all countries in the South Asian region. Mohammed Ali Jinnah had indicated early on that all religious communities could freely practice their religion in Pakistan.41 Yet the slogans of ‘one religion, one language, one nation’ were also central in its political life.42 Subsequent constitutional developments in Pakistan established Islam as the state religion of Pakistan. The adoption of a state religion in Pakistan has led to ‘over-symbolisation’ of state religion and the ‘otherisation’ of minorities in public spaces.43 However, religious minorities were granted constitutional protection, and their right to be represented in the federal and state bureaucracies was constitutionally protected. This protection has been seen to be in keeping with the tenets of Islam that guarantee the protection of minorities.44 Minorities are impliedly only identified on the basis of religion, and the Pakistan Constitution has, therefore, chosen to define the term non-Muslim.45 This constitutional amendment has also served to treat groups such as Ahmadiyas as non-Muslim. The 1972 Constitution of Sri Lanka gave the ‘foremost place’ to Buddhism, and cast a duty on the State to foster Buddhism and Sinhala was declared to be the official language of Sri Lanka. As a commentator noted, the Sinhala national identity of an ‘Aryan, Buddhist, Sinhalese speaking nation’ was developed in opposition to a ‘Tamil, Hindu, Dravidian’ minority.46 Article 9 of the 1978 Constitution accords Buddhism ‘the foremost place’, implicitly acknowledging that majority of Sri Lankans profess the Buddhist faith, without however giving Buddhism the status of the state religion.47 Despite the importance given to religion in Sri Lanka, language has been the main cleavage as we note below. Bangladesh has had a series of amendments dealing with the establishment of a state religion (significantly, unlike Pakistan, it does not describe itself as an Islamic republic). The state religion is Islam, and the State is under a duty to ensure equal status and equal right in the practice of the Hindu,

In the recent decision in Indian Young Lawyers Association v. State of Kerala (2019) 11 SCC 1, the Supreme Court of India held that any practice of the temple that excluded women of certain age from entry and worship violated their right to practice their religious beliefs. Likewise, in N. Adithayan v. Travancore Devaswom Board (2002) 8 SCC 106 the Court held that practices of ‘untouchability’ could not be protected under the right of freedom of a religious group to manage its own affairs. 41 Mehfooz (2021). 42 Khan (2011). 43 Alam (2018), 295–96. 44 Ghazi (2009). 45 The Constitution (Third Amendment) Order, 1985 amended Article 260(3)(b) of the Pakistan Constitution to define a non-Muslim (in a manner to include Ahmadiyas) as ‘a person belonging to the Christian, Hindu, Sikh, Buddhist or Parsi community, a person of the Quadiani Group or the Lahori Group who call themselves “Ahmadis” or by any other name, or a Bahai, and a person belonging to any of the Scheduled Castes’. 46 Coomaraswamy (1984). 47 For a discussion of the Sister Immaculate Joseph and the UN Human Rights Committee regarding the primacy given to Buddhism in the Constitution, see Gunatilleke (2020). 40

522  Research handbook on the politics of constitutional law Buddhist, Christian and other religions.48 The fifteenth amendment indicates that the State shall protect the ‘unique local culture and tradition of the tribes, minor races, ethnic sects and communities’.49 The issue of identification of minorities beyond a country has come into sharp focus in recent times. The Constitution Amendment Act, 2019, in India, granting citizenship to certain non- Muslim religious communities (minorities in Pakistan for instance) has set off large-scale protests across the country.50 The partition between India and Pakistan that accompanied independence from colonial rule saw large scale migrations of peoples across freshly-drawn borders, and such movement has continued long after. There is a fear that this will result in Muslims, who have also moved into India due to partition or war, being unable to get similar protection. There are legal challenges to the constitutionality of the CAA, since it does not treat all religious groups equally.51 What is noteworthy is that this law has used a history of persecution as an additional test for the determination of minority groups migrating into India, while such a test is absent for determination of minority groups within India, which by and large, is determined on a numerical basis. In the case of the CAA, the additional requirement of persecution has been added to religion, in order to justify the new law (once again reminiscent of Capotorti’s formulation to include oppression/persecution for identification of minorities, noted above). The courts are yet to determine if the exclusion of Muslims from the list of ‘illegal migrants’ is discriminatory, or if the new ground of ‘persecution’, as a criterion for identifying minorities, outside India alone, is constitutional, and in accordance with the basic feature of secularism. The intersection of religion and caste has added another complex layer to the debate on minorities in this region. There has been political mobilisation over whether non-Hindu groups could be included within the category of Scheduled Castes who are entitled to affirmative action/reservation in public employment and educational institutions in India. Official reports have recognised that caste discrimination is not limited to Hindu groups alone and acknowledge the existence of such caste groups within the minority Muslim community in India.52 Article 2A, Bangladesh Constitution, 1972. The Fifth Amendment also deleted secularism as one of the basic principles of state and the Eighth Amendment declared Islam the state religion. Following the Supreme Court decision in 2010 holding the fifth constitutional amendment and various martial law Proclamations to be unconstitutional in Khondker Delwar Hossain Secretary BNP and another v. Bangladesh Italian Marble Works Ltd. LEX/BDAD/0004/2010 and which widely cites relevant Indian and Pakistani judgments; the fifteenth amendment (2011) reversed some of these amendments, while retaining Islam as the State religion, with secularism as a fundamental principle of state policy. 49 Art 23 A. 50 Persons belonging to minority communities in Afghanistan, Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India before a cut-off date will benefit. 51 The rich literature on this matter is surveyed in Ram (2021). Gautam Bhatia in his essay ‘Citizenship and the Constitution’ in the book argues that Article 11 of the Indian Constitution that appears to give Parliament plenary powers to legislate with regard to the acquisition and termination of citizenship must be read in light of the constitutional assembly debates to argue that the framers endorsed ‘a holistic constitutional vision … founded on the principles of republicanism, secularism, equality and non-discrimination, and inclusion.’ (p 94) which the CAA does not reflect. Also see Khaitan (2020) and Chapter 36 by Suryapratim Roy and Rahul Sambaraju in this volume. 52 Prime Minister’s High Level Committee, Government of India (Sachar Committee), Social, Economic and Educational Status of the Muslim Community of India: A Report (2006). 48

Minorities: a view from South Asia  523 While there has been recognition of such groups within the Sikh and Buddhist community, this has not been done in the case of such persons within the Muslim and Christian community in India, which results in the denial of access to affirmative action measures constitutionally permitted for such historically disadvantaged groups. Persons converting from Hindu, Sikh or Buddhist religion stand to lose their Scheduled Caste status. The recognition of ‘caste’ in Pakistan, and later Bangladesh, has always been controversial. Do such castes belong only to the minority Hindus or can such groups be recognised among the majority Muslims? Reservation for Scheduled Castes in Pakistan had been based on the Government of India SC Order of 1936, based upon the Government of India Act, 1935. In the 1956 Constitution, two categories were made subject to special provisions in the form of quotas and relaxation – the Scheduled Castes and backward classes. The present Pakistan Constitution defines non-Muslims to include Scheduled Castes, clearly confining such caste to non-Muslims alone. Bangladesh has recently decided to do away with quotas in public employment. Apart from the 30 per cent posts reserved for families of freedom fighters (and against which street protests broke out in 2018), there was also a 5 per cent quota for persons from small ethnic groups, which has also now been withdrawn.53 The intersectionality of minority groups along the axes of caste and region has compounded their discrimination or marginalisation. The direct or indirect exclusion of minorities from affirmative action provisions that increase their access to educational institutions and public employment or political representation has contributed to their marginalisation in public life.

5.

MINORITY GROUPS AND LANGUAGES

In several South Asian constitutions, the right of people having a distinct language, script, or culture to preserve and promote their languages/culture is often at odds with other constitutional provisions that provide for an official/national language. Cleavages based on religion which seemed paramount in the founding moment of India and Pakistan have also yielded to federal and linguistic challenges over time. The insistence on ‘one language,’ Urdu, led to the division of Pakistan.54 The demand for Bengali, and later Sindhi, as an official language of Pakistan has been a fraught one. In 2015, the Pakistan Supreme Court directed the Government to take measures to see that Urdu replaced English as the official language.55 The insistence on a single national or official language has been less contested in a relatively more linguistically homogenous Bangladesh. For instance, Article 23 of Bangladesh Constitution states, ‘the State shall adopt measures to conserve the cultural traditions and heritage of the people, and so foster and improve the national language, literature and the arts ….’, and as a result, an implicit hierarchy among languages is created.56 In Sri Lanka, the Official Language Act, 1956, had granted the official language status to Sinhala and English alone. The ‘Sinhala only’ policy saw a drop in the employment of Tamils.57 As a result of the

53 https://​www​.unb​.com​.bd/​category/​Bangladesh/​Govt​-issues​-gazette​-abolishing​-quota​-in​-1st​-and​ -2nd​-class​-govt​-jobs​%C2​%A0/​3549. 54 Kamran (2016); Waseem (2011). 55 See for instance, Jawad et al. (2021). 56 See for instance, Sharma & Aslam (2018). 57 Sethy (2020).

524  Research handbook on the politics of constitutional law growing mobilisation by Tamils for recognition of their ethnic rights, the Constitution of 1978 gave Tamil the status of a national language. Further, the earlier constitution which granted fundamental rights to citizens alone, had included Sri Lankan Tamils but excluded up-country Tamils (mainly in the north and east of the island). The 1978 Constitution also extended fundamental rights to ‘persons’, with the result that such ‘Indian Tamils’ could potentially be covered. The Thirteenth Amendment to the Sri Lankan Constitution, carried out in 1987 after the India-Sri Lanka Accord, detailed the devolution of powers to the Provincial Councils.58 In most countries in South Asia, the population of the entire country has been used as a unit for identification of a minority. However, in India, an 11-judge bench of the Supreme Court declared that to quantitatively determine if a group was to be recognised as a minority, the effective population to be used should be the state-level population.59 The re-distribution of state borders in the 1950s, on a linguistic basis, appears to have led the court to use the states as the unit for the determination of numerical minority based on language. Each state has one or more official languages, which results in what have been termed ‘relative minorities’ (whose language is ‘official’ in another state) and ‘absolute minorities’ (whose language is not official in any state or ‘stateless languages’).60

6.

PRESERVING MINORITY RIGHTS – THE LINK WITH EDUCATION AND LANGUAGE

Non-discrimination has been seen as an inadequate protection in countries that have opted for additional positive rights for minorities. These protections are given to groups and, as a corollary, to individuals of those minority groups. India and Pakistan included a specific provision in their respective Constitutions, declaring that any section of citizens who had a distinct language, script, or culture had a right to conserve it.61 In the case of Pakistan, the language right was made subject to the national language of Pakistan being Urdu.62 The right of a community to take steps to preserve its cultural identity is reflected in the Republican Constitution of Sri Lanka and the Nepal 2015 Constitution.63 The more linguistically-homogenous Bangladesh Constitution does not provide a similar right for minorities. India has provided additional protection for religious and linguistic minorities to establish and administer educational institutions of their choice. However, race, caste, and other constitutionally prohibited grounds of discrimination are not identified as features to identify minorities.

Uyangoda (2010). TMA Pai Foundation v. State of Karnataka and Ors. (2002) 8 SCC 481. 60 See Benedikter (2011). 61 Article 29, Constitution of India and Article 28, Constitution of Pakistan. 62 Article 251, Constitution of Pakistan. In the case of Bangladesh, Article 3 declares Bangla to be the State language. See Khan (2001). 63 Article 14, Sri Lankan Constitution that each citizen has ‘the freedom by himself or in association with others to enjoy and promote his own culture and to use his own language’. Article 31(5) of the Nepal Constitution states that ‘Every Nepalese community residing in Nepal shall have the right to get education in its mother tongue and, for that purpose, to open and operate schools and educational institutes, in accordance with law.’ 58 59

Minorities: a view from South Asia  525 The liberty to set up schools to preserve the characteristics of a minority group, underscored by the PCIJ, appears to have influenced the introduction of a specific educational right being granted to minorities. Speaking about the importance of the constitutional provision granting minorities the right to establish and administer educational institutions in India, a constitutional bench of the Supreme Court declared, ‘Differential treatment that distinguishes them from the majority is a must to preserve their basic characteristics. To be blunt, black men do not wish to be white. Jews do not wish to be Protestants. Serbs do not want to be Croats. French Canadians do not want to lose their French heritage … There may be individuals in the minority group who want to assimilate into the majority, but the group itself has a collective interest for non-assimilation. It is interested in the preservation and promotion as a community. This appears to be the chief reason for which Article 30(1) was incorporated as a fundamental right.’64 However, it must be noted that the right of minorities to establish and administer educational institutions does not entail any duty upon the state to ensure that such schools are set up or succeed in functioning. The ‘right’ to set up schools, in practice, is only a liberty-right granted to the minority community, with a duty of non-interference cast upon the state in these matters. The special feature of educational rights for minorities had led to demands for the right to set up educational institutions as a right available to all citizens. The courts initially rejected such a reading, holding that the right to establish and administer educational institutions was a protection confined only to religious and linguistic minorities. In fact, the courts have sometime pierced ‘the minority veil’ to discover if there is a minority at all behind the educational institution seeking constitutional protection.65 Subsequently, by including such a right as part of the broader constitutional right to carry on an occupation, the courts, in effect, have granted the liberty to set up educational institutions to all persons, not just minorities.66 Do such universalising measures take away the special, additional protections afforded to minorities? Given that the protection to minorities is a part of the original Constitution, and also a part of its identity and basic features, courts in India have held that recent constitutional amendments that enable affirmative action programmes to compel even private, unaided institutions to accept a certain percentage of students who are socially and educationally backward, would not apply to minority-run educational institutions.67 This distinction between educational institutions run by minorities and others has continued in the more recent 103rd constitutional amendment in 2019 that extends quotas for economically weaker sections. Such a reading of the Constitution has not only provided additional protection to minorities but has also served to carve out minority-run educational institutions as spaces where broader reservation quotas or set-asides for ‘socially and educationally backward classes’ or economically weaker sections cannot operate. This has immunised minority-administered institutions, even if publicly funded, from being compelled to participate in broader social engineering, by opening up St. Stephen’s College v. University of Delhi (1991) (1992) 1 SCC 558. A.P. Christian Medical Educational Society v. Government of Andhra Pradesh (1986) 2 SCC 667. 66 See TMA Pai Foundation v. State of Karnataka (2002) 8 SCC 481. 67 The courts have upheld the 93rd constitutional amendment that permitted the State to make laws that could compel educational institutions to reserve seats for socially and educationally ‘backward’ classes of citizens. See Pramati v. Union of India (2014) 8 SCC 1. The 2019 103rd constitutional amendment introduced Article 15(6) that permits reservation for economically weaker sections of citizens (other than the classes/groups for whom reservations has already been provided) in educational institutions, including private, unaided institutions, except minority educational institutions. 64 65

526  Research handbook on the politics of constitutional law schools and university level institutions to social inclusion and diversity. In turn, this sets up a potential tension between the beneficiaries of affirmative action programmes, who rely on such set asides/quotas in educational institutions, and the minorities who establish and administer educational institutions. When opportunities for public employment at the national or provincial levels are greater for those fluent in official languages, the constitutional provisions for such a national or official language have the potential to cause federal tensions while also affecting the viability of minority groups to preserve their distinct language or culture. For instance, following the ‘Sinhala only’68 laws under the first Constitution, the requirement of proficiency in Sinhalese resulted in a dip in the recruitment of Tamils in public service and education. Likewise, following the 1956 Pakistan Constitution, the requirement of proficiency in Urdu placed Bengali speakers at a disadvantage.69 Quite apart from the potential domination of the official language (which has sparked language riots in many countries in the region), there is the unspoken dominance of English which has always been associated with the elites since colonial times. The ‘cleavages’ across language often overlap with religious differences too. For instance, the majority community in Sri Lanka that speaks Sinhala is predominantly Buddhist, while the Tamil minority is predominantly Hindu.70 The overlapping of religious cleavages with linguistic/ethnic cleavages, which is present in Sri Lanka, has resulted in an increase in civil conflicts.71 However, Udagama argues that the divisions in Sri Lanka are based more on ‘ethnicity, and not religion’,72 more between Sinhala and Tamils rather than between Buddhists and Hindus. Sethy argues that when language riots broke out in India in the 1960s over the use of Hindi in Tamil Nadu, the ability of the government and parties to form coalitions with Tamil parties and engage them in the democratic process resulted in the lessening of tensions. Thus, not only are special language rights or absence of linguistic or educational discrimination important, the access of citizens of minority groups to the democratic process appear equally important for such specific minority rights to be protected, and enjoyed. This aspect is examined in the following section.

7.

PROTECTION OF MINORITIES OR AFFIRMATIVE ACTION?

We turn now to the politics of implementing constitutional protections for minorities. Constitutions often incorporate the enumeration of rights along with general non-discrimination provisions to further deepen the principle of equality. Sometimes these devices are used together, within structures of federalism, in order to deepen the democratic aspirations of minorities within federal units, or to address disparities across federal units within a country. The development of such interlocking ‘special provisions’ within federal structures have the capacity to address ethnic/caste/religious/linguistic issues, and simultaneously address geographical and regional imbalances. ‘Consociational’ forms of group representation within

70 71 72 68 69

Walisundara (2019). Also see Welikala (2012). Sethy (2020). Also see Sawat Selway (2011). Ali (2018). Sethy (2020). Udagama (2013), 159.

Minorities: a view from South Asia  527 federal units have been a peculiar form of federalism within the South Asian region, and have served to increase the complexity of accommodating identities within a federal and affirmative action framework. One of the ways in which constitutions in the region have sought to address differences has been through the principles of federalism. Creation of states and provinces along ethnic or linguistic lines seems to have been a fairly widely used strategy to give ‘voice’ to regional aspirations. As Katherine Adeney notes, ‘Federations in ethnically divided societies can either exacerbate or contain conflict.’73 Federalism has traditionally been seen as a democracy-deepening constitutional strategy since it allows regional identities to find a space within institutional structures.74 The limitations of consociationalism in protecting groups need to be recognised, and cannot replace the need for deeper protection embedded in constitutionalism.75 The use of quotas as a substantive equality measure within the constitutional texts to counter discrimination based on religion, region/ethnicity/sex or residence has led to widespread debate in the region. The question whether these quotas have had the desired effect is a difficult one to answer given the lack of long-term studies tracking these aspects in the region. Affirmative action measures, at the level of political representation for religious or linguistic minorities, have been in place in most countries in South Asia, other than in India.76 Countries in the region that have followed the Westminster system have also adopted the ‘first past the post’ (FPTP) system in their elections, characterised by single member constituencies, where the person with the highest vote gets elected.77 This FPTP system also has the feature of ‘wasted votes’, where the votes cast for the losing candidates may result in a loss of ‘voice’. Sri Lanka chose to move away from the FPTP, initially adopted in 1948, to a system of proportional representation in its 1978 Republican Constitution. This was done keeping in mind that the proportional representation system provided a greater say to its minorities and their political parties. Following the eighth constitutional amendment of Pakistan in 1985, Article 51 of the constitution provided for setting aside 10 seats in the national assembly for minority religious groups – Christians, Hindus, Sikhs, Buddhists, Parsis, and also (controversially) Ahmadis.78 The amendment also provided that members belonging to the minority communities were to be elected on the basis of separate electorates. There has been a broadening of this form of representation to various groups, including religious minorities. Various provinces in Pakistan, following the 18th constitutional amendment in 2010, allow for affirmative action at the level of local elections. For instance, Punjab, since 2019, provides for seats reserved for women, persons belonging to religious minorities, workers, and peasants.79 These constitutional arrangements to give voice to minority groups within democratic structures serve to Adeney (2009), 87. Friedrich (1968). 75 See for instance, Issacharoff (2004). 76 Once Sikkim became a part of India, certain seats in the legislative assembly were reserved for monasteries. This aspect was challenged as violative of the basic structure of the Constitution but was rejected, mainly due to the insignificant numbers of seats reserved. R.C. Poudyal v. Union of India 1994 Supp. (1) SCC 324. 77 On the influence of the Westminster system in this region, see Kumarasingham (2016). 78 Mehdi (1994). 79 Punjab Local Government Act, 2019, sections 18–20 read with the schedules. 73 74

528  Research handbook on the politics of constitutional law lessen tensions as discussed earlier. This blending of ‘governance’ as well as ‘rights’ features in favour of minorities seem to have gained acceptance, and, as the Pakistan example of its 18th constitutional amendment indicates, has cascaded down below the federal/state level to the local government levels too. India has provided for affirmative action in representation in national, state and local government bodies. However, because of the exclusion of religious and linguistic minorities in such forms of political representation in the constitutional scheme, their participation in government bodies continues to be impacted. The non-recognition of every language within a country for accessing government jobs has important implications for the composition of public employment. Recruitment for these government jobs may be conducted on the basis of only one or more selected languages alone, often privileging those languages that are designated as national or official languages. This immediately places other language-speakers at a disadvantage in such entrance/eligibility tests, interviews etc. The existence of quotas in different local areas, as in Pakistan, does not completely erase the initial discrimination on the basis of language, as the existence of quotas may not adequately compensate the discrimination faced by those sections of the population speaking a ‘non-recognised’ language in their access to education, facilities vis-à-vis access to government services, access to higher education, and so forth. Thus, the language policy has an important impact on the composition of public employment. India made special provisions for Scheduled Castes (who had been historically oppressed, and for whom reservations have been termed as ‘compensatory’), Scheduled Tribes, as well as a more open-ended category of backward classes.80 During the drafting of the Indian Constitution, the key advisory committee had considered the provision of fundamental rights to various categories of persons, including to caste groups, minorities, tribes, etc. Yet, as the debates unfolded in the backdrop of Partition, the question of providing reservation in public education and government jobs was confined to Scheduled Castes, Scheduled Tribes, and backward classes. Minorities, per se, were separately dealt with and, as discussed earlier, provided with the protection to establish and administer educational institutions of their choice. Reservations, per se, for religious or linguistic minorities either in representation or in public employment, were not envisaged under the Constitution. Yet, as the jurisprudence of what constitutes a ‘backward class of citizens’ developed, the court elaborated criteria based on occupation, caste, income, educational level, social position, and other factors to determine if a group could broadly be called socially and educational backward. As occupation is a secular category, some religious minority communities have been indirectly included in the category of backward classes, if their caste or occupational grouping has been identified as ‘other backward classes’ across India.81 Yet, as government reports indicate, the number of minorities in public employment and in elected representatives continues to be low.

8.

THE WAY FORWARD

This chapter has traced alternate strategies used by countries in the South Asia region to ‘deal’ with minority matters. ‘Recognising’ minorities and granting them the rights of non-discrimination is an important step. The chapter also examined the various approaches See generally, Galanter (1984); Mahajan and Jodhka (2012). Jenkin (2012), 95–117. Sankaran (2009).

80 81

Minorities: a view from South Asia  529 for identifying minority groups, as also the manner in which the right to conserve, promote their language or culture, or educational rights have been incorporated in these constitutions. However, the right granted to minorities, to conserve or promote their culture or language or set up schools for this purpose, is at best only a liberty or permission from the State. The right does not entail any positive duty on the part of the State to proactively take steps to conserve minority languages, offer public education in such minority languages, recognise minority languages for public employment or provide financial, budgetary outlay for these purposes. However, the incorporation of affirmative action provisions such as quotas for minorities in legislatures imposes a duty upon the State to carry out this mandate resulting in visibility and enhanced public participation of minority groups. In contrast, affirmative action programmes that offer opportunities for education or access to governmental resources may still fall short of a legal right being created in the minority group or imposing a duty upon the State, if such affirmative action measures are merely enabling in nature or in the nature of welfare schemes subject to governmental discretion and financing. Transforming the normative approach to minorities from a ‘liberty/permission’ based framework to a framework which imposes as justiciable duty with regard to minority rights may go a long way to improving the lives of the minority communities and protecting their unique identity and culture. All the countries in the deeply diverse and plural South Asian region have experimented with different constitutional choices. Instead of a homogenous melting pot, the countries have attempted to achieve what has been described as a ‘mosaic’ or ‘a salad bowl’ or an ‘Indian thali’ where each separate caste/community/culture/language is a separate part of a unified whole. The ability of the constitutional design to hold these diverse strands together, and meld them into an equal whole, continues to remain a challenge.

REFERENCES Adeney, Katharine. (2012). ‘A Step Towards Inclusive Federalism in Pakistan? The Politics of the 18th Amendment,’ Publius 42: 539–65. Adeney, Katherine. (2009). ‘The Limitations of Non-consociational Federalism: The Example of Pakistan,’ Ethnopolitics 6: 87–106. Alam, Aftab. (2015). ‘Minority Rights under International Law,’ Journal of the Indian Law Institute 57: 376–400. Alam, Javed in Rita Manchanda (ed) States in conflict with their Minorities: Challenges to Minority Rights in South Asia (Sage Publications, 2010). Alam, Parvez. (2018). ‘Religious Minorities of Pakistan: An Overview,’ The Indian Journal of Politics 52: 291–302. Alavi, Hamza. (1989). ‘Nationhood and the Nationalities in Pakistan,’ Economic and Political Weekly 24: 1527–34. Ali, Azhar. (2018). ‘Ethnic and Religious Minorities in Sri Lanka,’ The Indian Journal of Politics 52: 314–25. Bajpai, Rochana. (2019). ‘Multiculturalism in India: An Exception?’ in Richard T. Ashcroft & Mark Bevir (eds) Multiculturalism in the British Commonwealth: Comparative Perspectives on Theory and Practice (University of California Press, 2019). Barzillai, Gad. ‘Legal Categorizations and Religion: On Politics of Modernity, Practices, Faith, and Power’ in Austin Sarat (ed) The Blackwell Companion to Law and Society (Blackwell Publishing, 2004). Benedikter, Thomas. (2011). ‘The Protection of Linguistic Rights in India: India’s Language Policy toward Linguistic Minorities,’ European Yearbook of Minority Issues Online 8: 453–82.

530  Research handbook on the politics of constitutional law Benhabib, Seyla. The Claims of Culture: Equality and Diversity in the Global Era (Princeton University Press, 2002). Béteille, André. (1998). ‘The Idea of Indigenous People,’ Current Anthropology 39: 187–92. Castellino, Joshua & Jérémie Gilbert. (2003). ‘Self-Determination, Indigenous Peoples and Minorities,’ Macquarie Law Journal 3: 155–78. Castellino, Joshua. (2011). ‘“Globalization” and Its Impact on Minorities in South Asia,’ European Yearbook of Minority Issues Online 8(1): 187–217. Castellino, Joshua. (2010). ‘The Protection of Minorities and Indigenous Peoples in International Law: A Comparative Temporal Analysis,’ International Journal on Minority and Group Rights 17: 393–422. Chakrabarty, Dipesh. Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton University Press, reissued 2008). Coomaraswamy, Radhika. Sri Lanka: The Crisis of the Anglo-American Constitutional Traditions in a Developing Society (Vikas Publishing House, 1984). Fazal, Tanweer. ‘Nation-State’ and Minority Rights in India: Comparative Perspectives on Muslim and Sikh Identities (Routledge, 2015). Friedrich, Carl J. Constitutional Government and Democracy (Blaisdell Publishing Company, 1968). Galanter, Marc, Competing Equalities: Law and the Backward Classes in India (Oxford University Press, 1984). Ghazi, Mahmood Ahmad. (2009). ‘Islamic Shari’ah and the Question of Minorities,’ Policy Perspectives 6: 63–77. Gunatilleke, Gehan. (2020). ‘Criteria and Constraints: The Human Rights Committee’s Test on Limiting the Freedom of Religion or Belief,’ Religion and Human Rights 15: 20–38. Issacharoff, Samuel. (2004). ‘Constitutionalizing Democracies in Fractured Societies,’ Journal of International Affairs 58: 73–93. Jalal, Ayesha. The Sole Spokesman: Jinnah, the Muslim League and the demand for Pakistan (Cambridge University Press Pb edn, 1994). Jawad, Saqib, Barkat Ali, Muhammad Asad & Muhammad Sohail Thaheem. (2021). ‘Urdu as Official Language: A Constitutional Mandate, Compliance, Challenges Perspective,’ Review of Applied, Management and Social Sciences 4: 261–70. Jenkin, Laura Dedley. ‘Scheduled Castes, Christian and Muslims: The Politics of Macro-majorities and Micro-minorities’ in Rowena Robinson (ed) Minority Studies (Oxford University Press, 2012). Jha, Shefali. (2003). ‘Rights versus Representation: Defending Minority Interests in the Constituent Assembly,’ Economic and Political Weekly 38: 1579–83. Kamran, Tahir. ‘Pakistan’s First Decade: Democracy and Constitution – A Historical Appraisal of Centralisation’ in Harshan Kumarasingham (ed) Constitution-making in Asia (Routledge, 2016). Kaviraj, Sudipta. (2005). ‘An Outline of a Revisionist Theory of Modernity,’ European Journal of Sociology 46: 497–526. Khaitan, Tarunabh. (2020). ‘Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India,’ Law & Ethics of Human Rights, 14: 49–95. Khan, Borhan Uddin & Muhammad Mahbubur Rahman. (2011). ‘Freedom of Religion in South Asia: Implications for Minorities,’ European Yearbook of Minority Issues Online, 8: 367–86. Khan, Hamid. Constitutional and Political History of Pakistan (Oxford University Press, 2001). Khan, I. (2011). ‘Pakistan: Nation-State, State-Nation or Multinational State?,’ European Yearbook of Minority Issues Online 8(1): 387–97. Khan, Maryam. ‘What’s in a Founding? Founding Moments and Pakistan’s “Permanent Constitution” of 1973’ in Richard Albert, Menaka Guruswamy & Nischal Basnyet (eds) Founding Moments in Constitutionalism (Hart Publishing, 2019). Kingsbury, Benedict. (1998). ‘“Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy,’ The American Journal of International Law 92: 414–57. Kukathas, Chandran. (1998). ‘Liberalism and multiculturalism: The politics of indifference,’ Political Theory 26: 686–99. Kumarasingham, Harshan (ed). Constitution-Making in Asia: Decolonisation And State-Building In The Aftermath Of The British Empire (Routledge, 2016). Kymlicka, Will. (1997). ‘Do We Need a Liberal Theory of Minority Rights? Reply To Carens, Young, Parekh And Forst,’ Constellations 4: 72–87.

Minorities: a view from South Asia  531 Lerner, Hanna. Making Constitutions in Deeply Divided Societies (Cambridge University Press, 2011). Macklem, Patrick. The Sovereignty of Human Rights (Oxford University Press, 2012). Macklem, Patrick. (2008). ‘Minority rights in international law,’ International Journal of Constitutional Law 6: 531–52. Macklem, Patrick. ‘The Constitutional Identity of Indigenous Peoples in Canada: Status Groups or Federal Actors?’ in Andrew Arato, Jean L. Cohen & Astrid Von Busekist (eds) Forms of Pluralism and Democratic Constitutionalism (Columbia University Press, 2018). Mahajan, Gurpreet & Surinder S. Jodhka. (2012). ‘Religions, Democracy and Governance: Spaces for the Marginalised in Contemporary India,’ Economic and Political Weekly 47: 45–52. Mehdi, Rubya. The Islamization of the Law in Pakistan (Nordic Institute of Asian Studies, Richmond, Surrey, Curzon Press 1994). Mehfooz, Musferah, Religious Freedom in Pakistan: A Case Study of Religious Minorities. Religions 12: 51. 2021 available at https://​www​.mdpi​.com/​2077​-1444/​12/​1/​51. Nandy, Ashis. ‘Violence, Cultural Diversities and the Fantasies of a Monolithic Nation-State’ in Rita Manchanda (ed) States in Conflict with their Minorities: Challenges to Minority Rights in South Asia (Sage Publications, 2010). Nijman, Janne E. ‘Minorities and Majorities’ in Bardo Fassbender & Anne Peters (eds) The Oxford Handbook of the History of International Law (Oxford University Press, 2012). Ram, N. ‘The Evolving Politics of Citizenship in Republican India’ in Romila Thapar, N. Ram, Gautam Bhatia & Gautam Patel (eds) On Citizenship (Aleph Book Company, 2021). Sankaran, Kamala. ‘Issues before the Courts’, Seminar (602)(2009). Sawat Selway, Joel. (2011). ‘Crosscuttingness, Cleavage Structures and Civil War Onset,’ British Journal of Political Science 41: 111–38. Sethy, Priyanka. (2020). ‘The Role of The State: Pathways from Ethnolinguistic Nationalism to Conflict in South Asia,’ Journal of International Affairs 73: 95–118. Shahabuddin, Mohammad. (2012). ‘“Ethnicity” in the International Law of Minority Protection: The Post-Cold War Context in Perspective,’ Leiden Journal of International Law 25: 885–907. Sharma, Seema and Aslam Mohammad. (2018). ‘Rights of Minorities in Bangladesh,’ The Indian Journal of Politics 52(3–4): 303–13. Stepan, Alfred, Juan Linz, & Yogendra Yadav. Crafting State-Nations: India and other Multi-national Democracies (Johns Hopkins University Press, 2011). Thornberry, Patrick. (2002). ‘Minority and Indigenous Rights at “the end of history”,’ Ethnicities 2: 515–37. Tushnet, Mark & Madhav Khosla (eds). Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press, 2015). Tyagi, Yogesh. (2003). ‘Some Legal Aspects of Minority Languages in India,’ Social Scientist 31: 5–28. Udagama, Deepika. ‘The Democratic State and Religious Pluralism’ in Sunil Khilnani, Vikram Raghavan & Arun K. Thiruvengadam (eds) Comparative Constitutionalism in South Asia (Oxford University Press, 2013). Uyangoda, Jayadeva. ‘Sri Lanka: Recent Shifts in the Minority Rights Debate’ in Rita Manchanda (ed) States in Conflict with their Minorities: Challenges to Minority Rights in South Asia (SAGE Publications, 2010). Walisundara, Dilini Chamali. ‘Rethinking Policy and Pedagogy: A Study of Linguistic Diversity and Practice in Sri Lanka’ in Clare Wright, Lou Harvey & James Simpson (eds) Voices and Practices in Applied Linguistics: Diversifying a Discipline (White Rose University Press, 2019). Waseem, Mohammad. (2011). ‘Pakistan: A Majority-Constraining Federalism,’ India Quarterly 67: 213–28. Waughray, Annapurna. (2010). ‘Caste Discrimination and Minority Rights: The Case of India’s Dalits,’ International Journal on Minority and Group Rights 17: 327–53. Welikala, Asanga (ed). The Sri Lankan Republic At 40: Reflections on Constitutional History, Theory and Practice (2012). Zyberi, Gentian. ‘The International Court of Justice and the Rights of Peoples and Minorities’ in Christian Tams & James Sloan (eds) The Development of International Law by the International Court of Justice (Oxford University Press, 2013).

29. The politics of sexual identity and the emerging constitutional battles in Europe Alina Tryfonidou

1. INTRODUCTION The aim of this chapter is to consider the politics of sexual identity in Europe and the constitutional battles that are fought when the freedom to express one’s sexual identity and to claim rights related to it, clash with constitutional values and principles that are central to the national identities and traditions of European states. The above can be better exemplified by analysing the complex interplay between European law and national law in situations involving the rights of sexual minorities. As will be seen, when sexual minorities rely on European law to require states to respect their rights, what emerges is – often – a clash between principles of a constitutional nature at two different levels: the European level and the national level. In this chapter, we shall focus on examining how these clashes have been resolved, while considering the role that politics may have played in this process. The chapter will begin by explaining the position of sexual minority rights in Europe and under European law, as well as the main characteristics of the two supranational European legal systems, which is necessary background for enabling the reader to understand why cases concerning sexual minority rights constitute hard cases for the two supranational European courts. The chapter will, then, proceed to present two case-studies (on same-sex marriage and on homophobic speech) in order to demonstrate how the two European courts have sought to balance individual fundamental rights and constitutional principles stemming from European law, on the one hand, with national constitutional principles which are (allegedly) crucial for preserving national identity and sovereignty, on the other. These two specific case-studies have been chosen as they involve issues that have concerned both European courts and with regard to which both courts have felt the need to tread cautiously in order to prevent accusations of judicial activism and/or of unwarranted intrusion into the internal affairs of European states. This will be followed by a section analysing the role of politics in Europe’s constitutional battles, whilst the last section will summarise the conclusions of the chapter.

2.

SEXUAL MINORITY RIGHTS IN EUROPE: AN EXPLOSIVE COCKTAIL

Sexual minorities are groups of persons who have a different sexual orientation or gender identity than the majority population. These include, inter alia, lesbian, gay and bisexual (LGB) persons – i.e. persons who have a minority (non-heterosexual) sexual orientation – and trans persons, i.e. persons who have a minority gender identity. Historically, persons with non-heterosexual sexualities and minority sexual identities were considered to be subjects of 532

The politics of sexual identity and the emerging constitutional battles in Europe  533 non-belonging, ‘the other’, and, thus, judged as not worthy of rights.1 As noted elsewhere, the dominance of heterosexuality as the only legitimate form of sexual orientation and the silencing of all other discourses of sexuality have traditionally legitimised exclusionary laws and policies which completely ignored the existence of sexual minorities and relegated them to a second-rate position.2 Given that Europe’s constitutional battles concerning sexual minorities have, mostly, been fought in cases involving LGB persons, where the approach of the two European courts has been more reserved,3 the focus of this chapter will be on the rights of this sexual minority group. As is well-known, ‘European law’ is an umbrella term that covers the law produced by two separate – albeit closely interrelated – European organisations, namely, the European Union (EU) and the Council of Europe with its flagship human rights instrument, the European Convention on Human Rights (ECHR). Each of these organisations has its own, independent,4 court, respectively, the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR) which is tasked with interpreting the ECHR. Although the EU is not a human rights organisation and its Court – the CJEU – is not a human rights court, the ECtHR has

Grigolo (2003), 1024. Tryfonidou (2020a), 204. 3 Case-law involving trans persons has reached both European courts (the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR)), and in most instances both courts have taken an approach which was favourable to the rights of trans persons and which demonstrated that the courts had felt less inclined to take a cautious approach to the matter. For CJEU case-law see Case C-13/94, P and S v. Cornwall City Council ECLI:EU:C:1996:170; Case C-117/01, KB v. National Health Service Pensions Agency and Another ECLI:EU:C:2004:7; Case C-423/04, Richards v. Secretary of State for Work and Pensions ECLI:EU:C:2006:256; Case C-415/16, MB v. Secretary of State for Work and Pensions ECLI:EU:C:2018:492. For ECtHR case-law see, inter alia, B v. France, app. no. 13343/87, 25 March 1992; Goodwin v. UK, app. no. 28957/95, 11 July 2002; I v. UK, app. no. 25680/94, 11 July 2002; Van Kück v. Germany, app. no. 35968/97, 12 June 2003; Grant v. UK, app. no. 32570/03, 23 May 2006; L v. Lithuania, app. no. 27527/03; Schlumpf v. Switzerland, app. no. 29002/06, 8 January 2009; Y. Y. v. Turkey, app. no. 14793/08, 10 March 2015; A.P., Garçon and Nicot v. France, app. nos. 79885/12, 52471/13 and 52596/13, 6 April 2017; S. V. v. Italy, app. no. 55216/08, 11 October 2018; X and Y v. Romania, app. nos. 2145/16 and 20607/16, 19 January 2021; A.M. and Others v. Russia, app. no. 47220/19, 6 July 2021. 4 For the importance of judicial independence as a necessary element of good governance see Chapter 15 by Vanberg, Broman and Ritter in this volume. 1 2

534  Research handbook on the politics of constitutional law recognised that the EU affords fundamental rights protection which is equivalent to that of the ECHR,5 and this is, also, reflected in Article 52(3) of the EU Charter of Fundamental Rights.6 The EU legal system is unique and has widely been characterised as ‘sui generis’.7 It is unique in that it is neither a federal legal system akin to a nation state nor is it a creation of international law.8 In fact, with judge-made doctrines such as that of the supremacy of EU law,9 direct effect,10 and the recognition of (initially unwritten) fundamental rights as general principles of EU law,11 the EU has come to be vividly described as a ‘constitutional order of States’,12 and the CJEU as a ‘constitutional court’ or, at least, as a Court with ‘constitutional jurisprudence’.13 And although the EU’s only attempt to date to introduce an EU constitution back in 2005 had failed,14 its constituent EU Treaties (the Treaty on European Union and the Treaty on the Functioning of the European Union), are viewed as the central bits and pieces of the EU’s ‘constitution’.15 On the other hand, the ECHR is a regional human rights Treaty that was drafted by the Council of Europe in 1949 and entered into force in 1953. It has as its sole aim to protect human rights and, in particular, civil and political rights.16 In Europe we find some of the most pioneering countries – but we also find some of the least tolerant countries in the occidental world – when it comes to sexual minority rights. In the last few years, in some Eastern European countries in particular, homophobic and transphobic rhetoric is on the rise, fuelled by populism, divisive politics and socially conservative and 5 In Bosphorus Hava Yollari Turizm ve Ticaret AS v. Ireland, app. no. 45036/98, 30 June 2005, the ECtHR sought to provide a clarification on the relationship between the two legal systems: the EU and the ECHR. The ECtHR held that the ECHR signatory states are not prohibited from transferring sovereign power to an international organisation but they remain responsible for all acts and omissions of their organs ‘regardless of whether the act or omission was a consequence of domestic law or of the necessity to comply with international legal obligations’ (para 153). The Court also noted that as long as the international organisation ‘is considered to protect fundamental rights […] in a manner which can be considered at least equivalent to that for which the Convention provides’ the Court will presume that a State has acted in compliance with the Convention, where the State had no discretion in implementing the legal obligations flowing from its membership of the organisation (paras 155 and 156). The Court then noted that the above presumption can, however, be rebutted where the protection in the particular case is regarded as ‘manifestly deficient’ (para 156). When applying the above principles to the relationship between the EU and the ECHR the CJEU noted that the presumption applied as the EU afforded fundamental rights protection which was equivalent to that of the ECHR (paras 159–165). 6 Article 52(3) of the Charter (Charter of Fundamental Rights of the European Union [2012] OJ C 326/391) provides: ‘In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection’. 7 For a strong criticism of the ‘sui generis theory’ see Schütze (2009). 8 Guerra Martins (2020), 27–29. 9 Established in Case 6/64, Costa v. ENEL ECLI:EU:C:1964:66. 10 Established in Case 26/62, Van Gend en Loos ECLI:EU:C:1963:1. 11 First established in Case 29/69, Stauder ECLI:EU:C:1969:57. 12 Dashwood (1996). 13 Jacobs (1992). 14 For more on the process of drafting the ‘Constitution’ see Weiler (2005). 15 This was said – referring to the then EEC Treaty – in Case 294/83, Parti écologiste ‘Les Verts’ v. European Parliament ECLI:EU:C:1986:166, para 23 but, as noted by Sharpston & de Baere (2011), 24, ‘that qualification can now be extended to both the EU Treaty and the FEU Treaty’. 16 For a detailed explanation of the ECHR see Rainey, McCormick & Ovey (2020); Harris, O’Boyle, Bates & Buckley (2018).

The politics of sexual identity and the emerging constitutional battles in Europe  535 religious groups: especially in countries like Poland, Hungary and Russia, political leaders have gained political capital by publicly displaying homophobia and marginalising sexual minorities with calls to ‘the defence of the nation’.17 Moreover, these countries tend to have high levels of religiosity,18 and thus the actions and rhetoric of religious institutions and leaders act as powerful counter-mobilisers against sexual minorities. Religious and political leaders in Eastern European countries, and even the society at large, often consider calls for the extension of more rights and entitlements to sexual minorities as an imposition of ‘Western values’ which – in their view – clash with their norms and values which are attached to tradition and religion and which consider the ‘traditional family’ as the foundation of society.19 Cases concerning sexual minority rights, thus, constitute hard cases for the two supranational European courts.20 Such cases involve complicated matters that in most instances fall within areas of law that are within the exclusive purview of nation states, such as family law, immigration, the regulation of civil status, and social security and taxation. Moreover, the rights of sexual minorities are a contested terrain where the struggles between the competing visions of ‘Europeanness’ and human rights, on the one hand, and national identity, morality and tradition, on the other, take place. This creates an explosive cocktail bound to present the adjudicators with difficult choices concerning the balance that must be struck between individual fundamental rights and constitutional principles stemming from European law, on the one hand, and national constitutional principles which are (allegedly) crucial for preserving national identity and sovereignty, on the other.

3.

THE CASE STUDIES

In this section, two case studies will be presented which shall demonstrate how the two supranational European courts have sought to resolve the clashes between principles of a constitutional nature stemming from the two different levels of governance – national and European – in cases involving the rights of sexual minorities. 3.1

The Traditional Understanding of Marriage as a Union between a Man and a Woman

Despite the fact that European States share some common values, when it comes to the question of what constitutes a ‘family’ and other family law issues, there appears to be great divergence among them, especially with regard to specific matters such as same-sex relationships, cohabitation, and parenting in situations which do not involve a man and a woman who are married and who are both biologically connected to their child(ren). It is not surprising, therefore, that family law and matters that touch on family life are areas that remain tightly controlled by the States.

Mole (2016). Adamczyk & Pitt (2009). 19 Ayoub & Paternotte (2019). 20 For an analysis and comparison of the jurisprudence of the two courts with regard to the rights of sexual minorities see Wintemute (2015). For detailed (albeit separate) analyses of the case-law of the two courts on sexual minority rights see Tryfonidou (2017); Johnson (2014); and Gonzalez Salzberg (2019). 17 18

536  Research handbook on the politics of constitutional law Marriage maintains a special position among family statuses. And although in certain cultural and geographic contexts marriage can take different forms (e.g. polygamous marriages21), European states converge in their traditional conception of marriage as a union between two partners of different sex. However, in the last 20 years (starting with the Netherlands in 2001) some European states have departed from this traditional conception of marriage by opening this status to same-sex couples.22 This has given rise to a divergence in understandings of the notion of ‘marriage’ within Europe, as there remains a sizeable portion of European states which consider that marriage can only be between a man and a woman,23 and some have even gone as far as introducing a constitutional ban on same-sex marriage.24 Unavoidably, the refusal of some European states to open marriage to same-sex couples has led to cases before the ECtHR contesting this on the basis that it violates the ECHR. In such cases, there appears to be a clash between – on the one hand – the rights of LGB persons to marry and to have their private and family life respected without being discriminated against on the ground of sexual orientation and – on the other hand – the right of states to choose to maintain a notion of ‘marriage’ which accords with their own national or religious traditions and (allegedly) to protect ‘the traditional family’ which, in some European States, is protected as a constitutional value.25 As we shall see below, the two supranational European Courts have chosen to respect the sovereignty of European States as regards the regulation of marriage and, thus, at national level, marriage can still be an institution that is open only to opposite-sex couples without this constituting a violation of European law.26 This can be seen clearly in the ECtHR’s reasoning in Schalk and Kopf,27 the first case in which this Court was directly confronted with this issue. The ECtHR noted that ‘marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of

For a compelling analysis of the argument in favour of the legal recognition of polygamous marriages – and for an excellent explanation of how ‘following the outcome of Coman, EU law obviously makes polygamy legally possible throughout the Member States’ – see Kochenov & Belavusau (2020), 568–69. 22 For an explanation of this transformation see Waaldijk (2020). 23 Of the Council of Europe Member States, at the moment of writing these are: Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Czechia, Cyprus, Georgia, Greece, Hungary, Italy, Latvia, Liechtenstein, Lithuania, Moldova, Monaco, Montenegro, North Macedonia, Poland, Romania, Russia, San Marino, Serbia, Slovakia, Turkey, Ukraine. 24 Of the Council of Europe Member States, at the moment of writing these are: Armenia, Bulgaria, Croatia, Georgia, Hungary, Latvia, Lithuania, Moldova, Montenegro, Poland, Russia, Serbia, Slovakia, Ukraine. 25 Taking into account the American context, Shauna Fisher has explained how (same-sex marriage) opposition groups interpret rights claims by sexual minority groups as ‘special rights’ and this ‘transforms what are originally conflicts of interests and status into conflicts over American values. In an effort to avoid having to defend privilege, opponents justify resisting contemporary civil rights claims with appeals to sovereignty, popular control, security, equal opportunity, individual merit, the past, and traditional morality’ – Fisher (2009), 211. 26 For an analysis of the jurisprudence of the CJEU and ECtHR on this matter as well as a comparison of the approaches of the two courts see de Groot (2021), 298–306. 27 Schalk and Kopf v. Austria, app. no. 30141/04, 24 June 2010. 21

The politics of sexual identity and the emerging constitutional battles in Europe  537 society’.28 This line of reasoning was subsequently confirmed in Oliari29 and, more recently, in Fedotova,30 where the ECtHR refrained from imposing a positive obligation on states to allow same-sex couples to marry ‘despite the gradual evolution of States on the matter’.31 In the above three cases, therefore, the Court held that the right to marry (laid down in Article 12 ECHR) and the right to respect for private and family life (laid down in Article 8 ECHR) – taken alone or with the prohibition of discrimination on the ground of sexual orientation (laid down in Article 14 ECHR) – do not require ECHR signatory states to open marriage to same-sex couples.32 Of course, in Oliari and Fedotova the Court took the additional step of imposing on signatory states a positive obligation to allow same-sex couples to have their relationship recognised by law – albeit not as a marriage. In the most recent of the three above cases – Fedotova – the Court concluded that there was a violation of Article 8 ECHR, by adopting reasoning which sought to reconcile, on the one hand, its decision to impose a positive obligation on states to introduce some form of legal recognition for same-sex couples, with, on the other hand, its continued resolution to allow signatory states a wide margin of appreciation as regards the decision to allow same-sex couples to enter into a marriage given that there is a lack of consensus regarding this matter:33 ‘Giving the applicants access to formal acknowledgment of their couples’ status in a form other than marriage will not be in conflict with the “traditional understanding of marriage” prevailing in Russia, or with the views of the majority to which the Government referred, as those views oppose only same-sex marriages, but they are not against other forms of legal acknowledgment which may exist’.34 The Court’s unwillingness to disturb ‘the privileged status often afforded to married couples’35 is, further, confirmed in other case-law. For instance, the ECtHR has allowed states to reserve the right to jointly parent a child to married couples and it has held that this does not amount to discrimination on the ground of sexual orientation, even if it is only opposite sex couples that can enter into marriage in their territory. In the words of the Court, ‘marriage confers a special status on those who enter into it. The exercise of the right to marry is protected by Article 12 of the Convention and gives rise to social, personal and legal consequences […] Accordingly, the Court considers that, for the purposes of second-parent adoption, the applicants’ legal situation cannot be said to be comparable to that of a married couple’.36 Moreover,

Ibid, para 62. See, also, Chapin and Charpentier v. France, app. no. 40183/17, 9 September 2016. Oliari and others v. Italy, app. nos. 18766/11 and 36030/11, 21 July 2015. 30 Fedotova and others v. Russia, app. nos. 40792/10, 30538/14 and 43439/14, 13 July 2021. On appeal, the Grand Chamber of the ECtHR in a ruling delivered in July 2023 agreed with the findings of the Chamber decision that was delivered in July 2021. 31 Oliary (above n 29), para 192. 32 For an analysis of the Court’s case-law regarding same-sex marriage and Article 12 ECHR see Johnson & Falcetta (2020). 33 For a discussion of the link between the lack of European consensus on a matter and the grant of a wide margin of appreciation by the ECtHR see Henrard (2019). 34 Fedotova (above n 30), para 56. After completion of this chapter, the ECtHR delivered rulings in two cases involving the issue of same-sex marriage – see Buhuceanu and others v. Romania, app. nos. 20021/19, 23 May 2023 and, Maymulakhin & Markiv v. Ukraine, app. no. 75135/14, 1 Jun 2023. 35 Johnson (above n 20), xii. 36 Gas and Dubois v. France, app. no. 25951/07, 15 March 2012, para 68. See, however, the different approach that the ECtHR adopted in Taddeucci and McCall v. Italy, app. no. 51362/09, 30 June 2016, which involved the family reunification rights of a same-sex couple. 28 29

538  Research handbook on the politics of constitutional law the ECtHR has allowed States to require a trans person married to a person of the opposite sex to the sex registered on their birth certificate, to terminate their marriage before they can be legally recognised in their acquired gender, exactly in order to avoid situations where a marriage is turned into a same-sex one in a State where marriage is not open to same-sex couples.37 In this way the Court confirmed the ‘trenchantly heteronormative interpretation of marriage’.38 Finally, in Orlandi,39 the Court held that ECHR signatory states must recognise same-sex marriages contracted in other countries, however, the obligation does not require them to recognise these as marriages, but it suffices if they are recognised as civil unions. The Court noted that while ‘the refusals in the present case are the result of the legislator’s choice not to allow same-sex marriage – a choice not condemnable under the Convention’,40 nonetheless, Italy ‘failed to strike a fair balance between any competing interests in so far as they failed to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their same-sex unions’.41 Hence, the ECtHR has read the ECHR as permitting signatory states to downgrade marriages validly contracted in other countries into registered partnerships, possibly considering that this was the perfect compromise between the need to recognise a legal status validly created elsewhere and the refusal of some European States to allow same-sex marriages in their territory. The above demonstrate that although the ECtHR has come to recognise the right of LGB persons to have their same-sex relationships legally recognised, nonetheless, it has clearly drawn a line by accepting that marriage is a special status with deep religious and traditional connotations, which ECHR signatory states can, as a result, still choose to reserve to opposite-sex couples. The ECtHR recognises that LGB persons have the same right as heterosexual persons to form loving relationships and to have those relationships legally recognised, as it noted explicitly in Vallianatos.42 However, in the Court’s view, the time is not yet ripe for imposing an obligation on States to allow same-sex marriages – extending marriage to same-sex couples constitutes the utmost legitimisation of same-sex relationships and it is felt that not all European states are ready to take this step.43 In the EU context, on the other hand, the refusal of EU states to allow same-sex marriage in their territory has only been tangentially touched upon given the lack of EU competence in the area of family law and in relation to matters such as civil status. This matter arose in a handful of cases in the area of EU anti-discrimination law, where the CJEU was concerned, more broadly, with the legal recognition of same-sex relationships and the consequences attached to them in the context of employment (e.g. survivor’s benefits and supplementary retirement pensions).44 Hämäläinen v. Finland, app. no. 37359/09, 16 July 2014. See, however, the different approach of the CJEU in the more recent Case C-415/16, MB v. Secretary of State for Work and Pensions ECLI:EU:C:2018:492. 38 Johnson (above n 20), xiii. 39 Orlandi and Others v. Italy, app. nos. 26431/12, 26742/12, 44057/12 and 60088/12, 14 December 2017. 40 ibid, para 207 (emphasis added). 41 Orlandi (above n 39), para 210. 42 Vallianatos and Others v. Greece, app. nos. 29381/09 and 32684/09, 7 November 2013. 43 For a criticism of this approach see Johnson (above n 20), ch 6. 44 See Case C-267/06, Maruko ECLI:EU:C:2008:179; Case C-147/08, Römer ECLI:EU:C:2011:286; Case C-267/12, Hay ECLI:EU:C:2013:823; Case C-443/15, Parris v. Trinity College Dublin and Others ECLI:EU:C:2016:897. 37

The politics of sexual identity and the emerging constitutional battles in Europe  539 Moreover, in the landmark case of Coman45 at issue was the cross-border recognition of same-sex marriages in situations involving the exercise of EU free movement rights. In Coman, Romania’s refusal to recognise for the purpose of granting family reunification rights under EU law, a same-sex marriage contracted in another EU Member State (Belgium) was challenged. In its judgment, the CJEU interpreted the term ‘spouse’ for the purposes of Directive 2004/3846 – which requires the grant of family reunification rights to a migrant Union citizen and his/her ‘spouse’ – as including a same-sex spouse. In its judgment, the CJEU noted that ‘a number of Governments that have submitted observations to the Court have referred in that regard to the fundamental nature of the institution of marriage and the intention of a number of Member States to maintain a conception of that institution as a union between a man and a woman, which is protected in some Member States by laws having constitutional status. The Latvian Government stated at the hearing that, even on the assumption that a refusal, in circumstances such as those of the main proceedings, to recognise marriages between persons of the same sex concluded in another Member State constitutes a restriction of Article 21 TFEU, such a restriction is justified on grounds of public policy and national identity, as referred to in Article 4(2) TEU’.47 The CJEU however quickly dismissed this argument: ‘the obligation for a Member State to recognise a marriage between persons of the same sex concluded in another Member State in accordance with the law of that state, for the sole purpose of granting a derived right of residence to a third-country national, does not undermine the institution of marriage in the first Member State, which is defined by national law and, as indicated in paragraph 37 above, falls within the competence of the Member States. Such recognition does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex. It is confined to the obligation to recognise such marriages, concluded in another Member State in accordance with the law of that state, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law.’48 The Court further noted that ‘an obligation to recognise such marriages for the sole purpose of granting a derived right of residence to a third-country national does not undermine the national identity or pose a threat to the public policy of the Member State concerned’.49 This demonstrates that although the CJEU is very well aware of the limits on the EU’s competence regarding family law matters – and is conscious of the backlash that a more ambitious ruling in this case might bring – it nonetheless does not shy away from declaring expressly that for the purposes of EU law, and where a situation falls within the scope of EU law, same-sex marriages and opposite-sex marriages validly contracted in an EU Member State

Case C-673/16, Coman ECLI:EU:C:2018:385. Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L 158/77. 47 Coman (above n 45), para 42. 48 Ibid, para 45. 49 Coman (above n 45), para 46. The Advocate General (ECLI:EU:C:2018:2) shared similar views: ‘if it were to be considered that the concept of marriage relates to national identity in certain Member States (which has not been expressly maintained by any of the Member States having lodged written observations, but only by the Latvian Government at the hearing on 21 November 2017), the obligation to respect that identity, which is set out in Article 4(2) TEU, cannot be construed independently of the obligation of sincere cooperation set out in Article 4(3) TEU. In accordance with that obligation, the Member States are required to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’ – para 40. 45 46

540  Research handbook on the politics of constitutional law should be equally recognised. EU law is supreme – and continues to be supreme – even over national constitutional provisions and even in relation to matters that form part of a Member State’s national identity.50 Yet, as argued elsewhere, the CJEU in this case has left quite a few questions unanswered, one of the most important ones being whether marriages contracted in other Member States will need to be recognised by an EU Member State for purposes other than the grant of family reunification rights in situations where there is an exercise of EU free movement rights.51 3.2

Homophobic Speech v. Freedom of Expression

Cases involving homophobic speech have reached both supranational European courts. In this part of the chapter, it will be demonstrated how the two courts have sought to reconcile the right of sexual minorities to be protected from homophobic speech with the fundamental right to freedom of expression of those engaging in such speech. In Vejdeland v. Sweden,52 a group of persons who distributed homophobic leaflets outside a Swedish school and, as a result, were convicted of ‘agitation’ against LGB persons, brought a case before the ECtHR claiming that their conviction amounted to a breach of Article 10 ECHR. In its judgment, the Court noted that the applicants’ conviction amounted to an interference with their freedom of expression as guaranteed by Article 10(1) ECHR. The important question, therefore, was whether the interference was justified in accordance with Article 10(2) ECHR. The Court concluded that it was, indeed, justified and, thus, the conviction did not amount to a breach of the freedom of expression of the applicants. The Court noted that ‘The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. In this respect, the Contracting States enjoy a margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10’.53 In Lilliendahl v. Iceland,54 however, the Court clarified that ‘The requirement for “European supervision” does not mean that in determining whether an impugned measure struck a fair balance between the relevant interests, it is necessarily the Court’s task to conduct the proportionality assessment afresh. On the contrary, in Article 10 cases the Court has generally understood the margin of appreciation to mean that, where the independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the applicant’s personal interests against the more general public interest in the case, it is not for it to substitute its own assessment of the merits (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities. The only exception to this is

52 53 54 50 51

van der Schyff (2012), 582–83. Tryfonidou (2019). Vejdeland v. Sweden, app. no. 1813/07, 9 February 2012. Ibid, para 51. Lilliendahl v. Iceland, app. no. 75135/14, 12 May 2020.

The politics of sexual identity and the emerging constitutional battles in Europe  541 where there are shown to be strong reasons for doing so’.55 Hence, the ECtHR appears to have adopted a soft proportionality approach in this context leaving it, effectively, to national courts to determine whether an interference with the freedom of expression (as a result of a criminal conviction for homophobic speech) is justified and proportionate. In the EU context, two cases involving homophobic speech reached the CJEU as preliminary references. In this context however – and given that the EU is not a human rights organisation – the CJEU was not called to rule directly on the clash between homophobic speech and freedom of expression. Rather, the question was whether homophobic speech in the context of employment can breach EU anti-discrimination law. The two cases were Asociaƫia Accept56 and NH.57 In both cases, a person who had – or appeared to have – the power to influence the recruitment decisions of, respectively, a Romanian football club and an Italian law firm, made homophobic statements to the effect that the club and the firm would not hire gays. In both cases there was no identifiable claimant (i.e. an LGB person who was not hired or who wished to apply for employment in the relevant club or firm but did not as a result of the statements) but, rather, the cases were initiated at national level by bodies which had as their aim to promote and protect LGBT+ rights. In both cases the CJEU held that homophobic statements in the context of recruitment can amount to discrimination on the ground of sexual orientation as regards access to employment and are, thus, contrary to Directive 2000/78.58 Although in Asociaƫia Accept the Court was mostly concerned with the procedural aspects of the case (e.g. burden of proof, locus standi of the applicant, the imposition of sanctions), in the subsequent NH case, the Court, also, considered the issue of fundamental rights and, in particular, the clash between, on the one hand, the right not to be discriminated against on the ground of sexual orientation, protected by Directive 2000/78, and on the other hand, the freedom of expression.59 In line with its Strasbourg counterpart, the CJEU considered that the prohibition of homophobic speech – in this context, on the ground that it amounts to discrimination on the ground of sexual orientation in the area of employment contrary to Directive 2000/78 – constitutes an interference with the freedom of expression, and proceeded to conclude, nonetheless, that such an interference is justified. The ECtHR and the CJEU, therefore, seem to have chosen to take a light approach in this context, leaving it up to the States to decide how they wish to deal with homophobic speech: first, they do not require States to completely prohibit homophobic speech as they consider that homophobic speech can be protected by the freedom of expression;60 and, second, they leave to the national courts the final determination (subject to a soft proportionality approach) as to whether the prohibition of homophobic speech – as an interference with the freedom of expression – is justified.

Vejdeland v. Sweden (above n 52), para 31. Case C-81/12, Asociaƫia Accept ECLI:EU:C:2013:27. For comments see Belavusau (2015). 57 Case C-507/17, NH v. Associazione Avvocatura per I Diritti LGBTI – Rete Lenford ECLI:EU:C:2020:289. For comments see Tryfonidou (2020c). 58 Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16. 59 NH (above n 57), paras 47–56. 60 For a criticism of this approach see para. 9 of the concurring Opinion of Judge Villiger in Vejdeland (above n 52). For comments see Tryfonidou (above n 57); Johnson (above n 20), 176–81. 55 56

542  Research handbook on the politics of constitutional law

4.

THE ROLE OF POLITICS IN EUROPE’S CONSTITUTIONAL BATTLES

The ‘East-West divide’ in Europe described in the Introduction,61 coupled with the way that the EU and the Council of Europe operate, have created a challenging socio-political context within which conflicts involving the rights of sexual minorities have been adjudicated. In the remaining of this chapter, this socio-political context and the impact it may have had on disputes of a constitutional nature involving sexual minority rights shall be analysed. 4.1

Vertical Balance of Powers and Political Games

In the last few decades, with the advent of globalisation and the increased need for international cooperation, states are no longer fully sovereign. This is, of course, the case also for the 46 Council of Europe Member States (which are, also, signatories of the ECHR), as well as for the 27 of those States which are EU Member States. In particular, the fact that European states are members of the above (and other) organisations means that gone are the days that these states – and those holding power within them – could simply act as they wished: now, there is a need to ensure that their actions are in line with their international obligations, including the obligations imposed by European law. The 27 EU Member States must act in accordance with their obligations under EU law, even in areas where they maintain exclusive (legislative) competence, and even where the clash is between national constitutional principles and EU law. This is because, due to the principle of supremacy of EU law, EU Member States cannot ‘hide’ behind their constitution in order to evade their obligations under EU law as the CJEU has held that EU law is supreme even over national constitutional provisions.62 We saw in the previous section how – through the Coman ruling63 – the CJEU imposed a requirement on EU Member States to recognise same-sex marriages for the purpose of granting family reunification rights and this is applicable even in Member States which maintain a constitutional ban on same-sex marriage. Hence, when it is clear that the violation of the rights of sexual minorities leads to a breach of EU law, the CJEU will not hesitate to make such a finding. Nonetheless, when doing so, the Court will be cautious to ensure that its finding of a violation of EU law is clearly argued and is based on solid legal argumentation, rather than on morality-based arguments in relation to which states are often afforded a ‘margin of appreciation’, to use terminology from the ECHR context. This is, after all, why in its decisions to date involving LGB persons and their rights under EU law, the CJEU has taken a functional approach64 and has avoided to use human rights arguments:65 it is probably more palatable to EU Member States to be told that For an analysis see Fenwick & Fenwick (2019). Case 11/70, Internationale Handelsgesellschaft ECLI:EU:C:1970:114. For comments see Tryfonidou (above n 51), 673–74. 63 Above n 45. 64 For an argument that the CJEU has transformed the non-discrimination field (and, in particular, the grant of sexual rights) by initially employing a functional approach to the interpretation of its core market rationale and, subsequently, by departing from it and by employing the status of EU citizenship as the core rationale see Belavusau (2017). 65 Rijpma (2019), 326, 330, 336. This approach can, also, be seen in the Court’s free movement (of persons) case-law – see, for instance, Case C-60/00, Carpenter v. Secretary of State for the Home 61 62

The politics of sexual identity and the emerging constitutional battles in Europe  543 they do not comply with EU law because they violate the rules of the core policies of the EU (e.g. free movement or anti-discrimination), rather than that the clash between principles of a constitutional nature which derive from the two different levels i.e. the national and the EU, is resolved in favour of the latter.66 Things become more complicated, however, when the question is not, merely, whether an EU Member State complies with its obligations under EU law but, more fundamentally, whether the EU can make legislation which safeguards the rights of sexual minorities. The EU is organised in a system of multi-level governance whereby powers are distributed in a vertical manner: some areas fall within the exclusive competence of the EU, others constitute areas of shared competence between the EU and its Member States, whereas in other areas the EU does not have competence to legislate at all but can support the actions of the Member States.67 The fact that different competences are allocated by the Treaties to different levels of governance and the fact that, unavoidably, the lines between different areas of competence are blurred, have led to a tendency on the part of EU Member States to call for less interference by the EU and to argue that the EU’s competence and the scope of EU law is more limited than the EU presents it to be.68 As explained elsewhere,69 ‘lack of competence’ arguments are likely to be used by EU Member States when they are objecting to legislative proposals seeking to advance the rights of sexual minorities. This is, possibly, the reason behind the Commission’s omission in its first ever LGBTIQ Equality Strategy,70 announced in November 2020, to include within its five-year plan the introduction of a legislative proposal which will have as its aim to achieve the cross-border legal recognition of same-sex relationships and the civil status attached to them.71 This omission is, possibly, due to the fact that the Commission is aware that it may be accused of acting ultra vires if it introduces such a measure. Moreover, even if the competence of the EU to introduce such a measure is not questioned, such a proposal is likely to meet the same fate as the proposed Equality Directive,72 which rests in legal limbo since 2008, as it will be impossible to achieve the requisite (depending on the legal basis adopted) unanimity or qualified majority in the Council. In any event, the above omission may also suggest that the Commission is choosing its battles and has – possibly – considered that it is more important at this moment to introduce a (horizontal73) legislative proposal seeking to ensure that in cross-border situations,

Department ECLI:EU:C:2002:434 and Case C-34/09, Ruiz Zambrano v. Office national de l’emploi ECLI:EU:C:2011:124. 66 For an analysis of the influence that politics can have on CJEU jurisprudence see Terpan & Saurugger (2020). 67 The categories and areas of Union competence are listed in Title I of Part One of the TFEU. 68 See, inter alia, Weatherill (2004); Davies (2006); Knook (2005). 69 Tryfonidou (above n 2), 219–20. 70 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions ‘Union of Equality: LGBTIQ Equality Strategy 2020–2025’. 71 Rather, it has merely noted that ‘It will explore possible measures to support the mutual recognition of same-gender spouses and registered partners’ legal status in cross border situations’ – ibid, 15. 72 Commission Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’ (2008) COM 426 final. 73 The measure is ‘horizontal’ in the sense that it will apply to all families, including rainbow families. The measure was announced last December under the title ‘Proposal for a Council regulation on

544  Research handbook on the politics of constitutional law the parent-child relationship established in one country will be recognised in all EU Member States, as it has promised in the LGBTIQ Strategy.74 The above is an apt demonstration of the fact that EU law-making is always affected by the socio-political context which prevails at the relevant time. The Commission must make cold calculations and an assessment of the current political climate in the Member States in order to determine the chances of success of its legislative programme and the order of priority in which it should introduce its various proposals. It should also prepare a proposal for which it will be able to use a legal basis which will not make it impossible for the measure to be passed (e.g. when it comes to proposals that concern sexual minority rights, it is wiser if a legal basis which does not require unanimity is used, in order to avoid a veto in the Council). It is never, therefore, simply, a question of whether the EU institutions wish to introduce legislation which protects the rights of sexual minorities but, rather, one of whether the socio-political climate permits such a step. After all, as explained elsewhere,75 the law-making process in the EU is heavily politicised as it is characterised by vote trading and political games. Therefore – and given that the rights of sexual minorities often come low down the agenda of EU Member States – in the unlikely event that legislation concerning the rights of sexual minorities is, indeed, passed, this is likely to be in a much diluted form as a result of the compromises that had to be made and the give-and-take by the Member States. Unlike the EU, the Council of Europe is a classic international organisation which – as such – does not have competence to make legislation. Moreover, the ECHR is a classic human rights treaty which imposes obligations on its signatory states under international law. Accordingly, the ECtHR is never called to adjudicate in cases concerning lack or abuse of legislative competence by a legislature at European level (as is the case in the EU context). However, as we have seen when analysing the case-studies above, the ECtHR has in many instances been faced with vertical battles of a constitutional nature. And as we have seen, due to the fact that cases involving sexual minority rights are often delicate and require it to achieve the right balance by, on the one hand, upholding the ECHR, and, on the other hand, ensuring that it does not appear to be substituting the decisions of the ECHR signatory states by imposing its own choices in areas where there can be a multiplicity of views, it has often resorted to a compromise. This compromise involves a finding of a prima facie interference with one or more of the rights laid down in the ECHR but then leaving it to national courts to assess whether the measure is justified and proportionate; in other words, it is not the ECtHR that will determine which of the clashing values/rights must prevail, but rather this is a determination that is due to be made at national level, with the ECtHR intervening only when the decision made at national level suffers from a fundamental error of judgement.

jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood’ COM(2022) 695 final. For an analysis of the measure see Tryfonidou (2023). 74 LGBTIQ Equality Strategy (above n 70), 17. 75 Tryfonidou (above n 2), 216.

The politics of sexual identity and the emerging constitutional battles in Europe  545 4.2

European Law and the Enforceability Conundrum

When it comes to European law – as is the case, generally, with the law and obligations stemming from international organisations76 – there are limited possibilities for its enforcement. When an EU Member State fails to comply with its obligations under EU law, an individual whose rights have been violated as a result, can bring a private enforcement action before a national court using the doctrine of direct effect. In addition, the Commission may decide to bring an enforcement action before the CJEU under Article 258 TFEU (or another Member State can bring such an action under Article 259 TFEU), though, for political reasons,77 this is rarely done for issues that are politically contested.78 Moreover, there is the Article 7 TEU procedure, which enables the EU to intervene preventively in a case of a ‘clear risk of a serious breach’ of Article 2 TEU values, and to impose sanctions in case of a ‘serious and persistent breach’ of those values; however, the need for unanimity in the European Council (as regards the imposition of sanctions) means that it is a toothless procedure when it comes to matters with regard to which more than one Member State may hold views different from those of the majority of Member States. In any event, and most importantly, even when a successful (private or public enforcement) action is brought, this does not necessarily mean that the recalcitrant Member State will respond by bringing its legislation and/or actions in line with its membership obligations, since the EU institutions have no means of direct enforcement of CJEU judgments or national court judgments which find that a Member State has violated EU law.79 A clear example of this is Romania’s failure to comply with the CJEU judgment in Coman.80 To this day, and more than five years after the judgment was delivered, the spouse of Mr Coman (Mr Hamilton) has not been issued with a residence permit,81 something which has pushed Mr Coman to submit an application to the ECtHR.82 And although the Commission has been made aware of this, it has not taken any concrete steps in order to require Romania to comply with the judgment – it could, for instance, go back to the CJEU asking for the imposition of a penalty payment under Article 260 TFEU, but it has not done so. Instead, adopting a seemingly more ‘conciliatory approach’, in its LGBTIQ Equality Strategy, the Commission promised ‘to continue to ensure the correct application of free movement law, including to address specific difficulties preventing LGBTIQ people and their families from enjoying 76 Freedman (2014). It should be noted, nonetheless, that it is not only the law and obligations stemming from international organisations that are often not enforced but also – as explained in Chapter 24 by Chilton and Versteeg in this volume – there is also often non-compliance with the provisions of national constitutions, given that there is no external entity that can force national governments to uphold their constitutional obligations. 77 Craig (1992), 454–57. 78 A rare example of this is the enforcement action that has recently been brought by the Commission against Hungary on the ground that the introduction by the latter of legislation which outlaws sharing information regarding LGBT+ issues with persons who are under 18 infringes several EU law provisions, including Article 2 TEU, which refers to the EU’s values – see Case C-769/22 Commission v. Hungary (pending). 79 Hartley (2010), 345. 80 Above n 45. 81 Tryfonidou & Wintemute (2021), 42. 82 Application no. 2663/21 Relu-Adrian COman and Others v. Romania, lodged on 23 December 2020 (pending).

546  Research handbook on the politics of constitutional law their rights’ as well as ‘dialogues with Member States in relation to the implementation of the Coman judgment’.83 Nonetheless, in the summer of 2021, the Commission announced that it initiated enforcement actions against Poland and Hungary.84 The action against Poland is based on the failure of the Polish authorities ‘to fully and appropriately respond to its [i.e. the Commission’s] inquiry regarding the nature and impact of the so-called “LGBT-ideology free zones” resolutions adopted by several Polish regions and municipalities’. The action against Hungary, on the other hand, targets the recently adopted Hungarian law which ‘prohibits or limits access to content that promotes or portrays the so-called “divergence from self-identity corresponding to sex at birth, sex change or homosexuality” for individuals under 18; and a disclaimer imposed on a children’s book with LGBTIQ content’. It is still early days and, thus, it will be interesting to see how these will proceed, not least as it is the first time that such actions are initiated against Member States on the ground that they are violating the rights of sexual minorities.85 As regards the enforcement of national obligations stemming from the ECHR, on the other hand, the situation is similar. The Council of Europe Member States are bound by the decisions of the ECtHR and must execute them which, often, requires them to amend their legislation in order to bring it into line with their obligations under the ECHR or introduce legislation where its absence constitutes an omission contrary to the ECHR. However, the ECtHR does not have the authority to overrule a national decision or annul national laws and it is the Council of Ministers of the Council of Europe – a political institution – that is responsible for supervising compliance. However, the Council of Ministers does not have the power to force states into compliance. Hence, again, it is, essentially, the national authorities and national institutions that have the last word as regards the implementation of the ECHR and the ECtHR cannot rely on coercion.86 Accordingly, it is fundamentally important for European institutions, individual States, and advocacy and minority rights groups, to step up their efforts in advancing the rights of sexual minorities by exerting legal and political pressure on specific European States which refuse to comply with their obligations under European law. This, of course, should be done in parallel with formal steps taken by the Commission (in the EU context), the Council of Ministers of the Council of Europe (in the ECHR context), as well as individuals, in order to ensure that European law is enforced even if, as explained above, these are often futile in that the final implementation at national level never occurs: in this manner it is, at least, acknowledged that States that violate the rights that sexual minorities derive from European law are at fault and it sends out a clear signal that the Council of Europe and the EU do not tolerate treating the members of sexual minorities as second class citizens. This – as has been suggested elsewhere

LGBTIQ Equality Strategy (above n 70), 14–15. ‘EU founding values: Commission starts legal action against Hungary and Poland for violations of fundamental rights of LGBTIQ people’ (15/7/2021) – available at https://​ec​.europa​.eu/​commission/​ presscorner/​detail/​en/​ip​_21​_3668. 85 As noted in n 78 above, the Commission has recently brought an infringement action before the CJEU against Hungary. However, it has recently decided to close the case against Poland on the ground that a number of Polish municipalities and regions have dropped the contested resolutions – see https://​ notesfrompoland​.com/​2023/​02/​16/​eu​-ends​-legal​-action​-against​-poland​-over​-anti​-lgbt​-zones/​. 86 Fenwick (2016), 249. 83 84

The politics of sexual identity and the emerging constitutional battles in Europe  547 – is a necessary part of the process of ‘changing hearts and minds’ in Europe as it will possibly contribute to a diminution in the social acceptance of homophobia.87

5. CONCLUSION European States inhabit a shared constitutional space which has been built in a piecemeal fashion through the development of European law in the last 70 years or so. The rights of sexual minorities have gradually come to occupy part of this space, although the steps that have been taken to this effect have been small and calculated, taking into account the prevailing socio-political climate and the readiness of European States to respect and protect these rights. As has been seen in this chapter, Europe is a divided continent when it comes to sexual minority rights, with (most) Western European States being among the pioneers in the world in the protection of such rights, and (most) Eastern European States constituting some of the most backward States in the occidental world, when it comes to LGBT egalitarianism. Hence, this ‘East/West divide’ coupled with the fact that European law requires European states to protect and respect the rights enjoyed by sexual minorities, have often led to clashes between, on the one hand, core principles of a constitutional nature protected at European level (fundamental human rights, equality and anti-discrimination, but, also, more functionally, free movement rights) and, on the other hand, national constitutional principles and values which oppose the extension of (m)any rights to sexual minorities. In this chapter we have seen how the two supranational European courts have approached such clashes. It is clear that the European institutions and Courts consider that they need to approach European States diplomatically and – where possible – in a spirit of dialogue in order to resolve these disputes. After all, what is the point of imposing obligations which (some) States will refuse to implement? Apart from this being a futile exercise it is, also, embarrassing for the European institutions and Courts. Hence, as has been explained, a large part of the decision as to which steps are to be taken at European level regarding the protection of sexual minorities, depends on how possible it is that these steps will be implemented at national level. Hence, the EU has refrained from legislating (specifically) on sexual minority rights, whilst the two supranational European courts have delivered their judgments in a manner which is as little interventionist as possible, in most cases leaving a wide margin of appreciation to the States. Ultimately, though, the European institutions and supranational courts will need to acknowledge that European States that violate the rights that sexual minorities derive from European law are at fault and in this way send out a clear signal that the Council of Europe and the EU do not tolerate treating the members of sexual minorities as second class citizens. This is, also, a necessary part of the process of contributing to a diminution in the social acceptance of homophobia.

87

Tryfonidou (2020b).

548  Research handbook on the politics of constitutional law

REFERENCES Adamczyk, Amy & Cassady Pitt. (2009). ‘Shaping Attitudes About Homosexuality: The Role of Religion and Cultural Context,’ Social Science Research 38: 338–51. Ayoub, Phillip & David Paternotte. ‘Europe and LGBT Rights: A Conflicted Relationship’ in Michael Bosia, Sandra M. McEvoy & Momin Rahman (eds) The Oxford Handbook of Global LGBT and Sexual Diversity Politics (Oxford University Press, 2019). Belavusau, Uladzislau. (2015). ‘A Penalty Card for Homophobia from EU Non-discrimination Law: Comment on Asociaƫia Accept (C-8/12),’ Columbia Journal of European Law 21: 353–81. Belavusau, Uladzislau. ‘EU Sexual Citizenship: Sex Beyond the Internal Market’ in Dimitry Kochenov (ed) EU Citizenship and Federalism: The Role of Rights (Cambridge University Press, 2017). Craig, Paul. (1992). ‘Once Upon a Time in the West: Direct Effect and the Federalization of EEC Law,’ Oxford Journal of Legal Studies 12: 453–79. Dashwood, Alan. (1996). ‘The Limits of European Community Powers,’ European Law Review 21: 113–28. Davies, Garreth. (2006). ‘Subsidiarity: The Wrong Idea, in the Wrong Place, at the Wrong Time,’ Common Market Law Review 43: 63–84. de Groot, D.A.J.G. The Many Faces of Civil Status Recognition: A Legal Analysis in the Light of EU Citizenship and the Case Law of the European Court of Justice and the European Court of Human Rights, PhD Thesis (University of Bern, 2021). Fenwick, Helen & Daniel Fenwick. (2019). ‘Finding “East”/“West” divisions in Council of Europe states on treatment of sexual minorities: the response of the Strasbourg Court and the role of consensus analysis,’ European Human Rights Law Review 3: 247–73. Fenwick, Helen. (2016). ‘Same sex unions at the Strasbourg Court in a divided Europe: driving forward reform or protecting the court’s authority via consensus analysis?,’ European Human Rights Law Review 3: 248–72. Fisher, Shauna. ‘It Takes (at Least) Two to Tango: Fighting With Words in the Conflict Over Same-Sex Marriage’ in Scott Barclay, Mary Bernstein & Anna-Maria Marshall (eds) Queer Mobilizations: LGBT Activists Confront the Law (New York University Press, 2009) 211. Freedman, Rosa. Failing to Protect: The UN and the Politicisation of Human Rights (Hurst and Company, 2014). Gonzalez Salzberg, Damian A. Sexuality and Transsexuality under the European Convention on Human Rights: A Queer Reading of Human Rights Law (Hart, 2019). Grigolo, Michele. (2003). ‘Sexualities and the ECHR: Introducing the Universal Sexual Legal Subject,’ European Journal of International Law 14: 1023–44. Guerra Martins, Ana Maria. ‘Equality and Non-Discrimination as an Integral Part of the EU Constitutional Identity’ in Thomas Giegerich (ed) The European Union as Protector and Promoter of Equality (Springer, 2020). Harris, David John, Michael O’Boyle, Ed Bates & Carla Buckley. Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights (Oxford University Press, 2018). Hartley, Trevor C. The Foundations of European Union Law (Oxford University Press, 2010) 345. Henrard, Kristin. ‘How the ECtHR’s Use of European Consensus Considerations Allows Legitimacy Concerns to Delimit its Mandate’ in Panos Kapotas & Vassilis P. Tzevelekos (eds) Building Consensus on European Consensus (Cambridge University Press, 2019). Jacobs, Francis Jeffrey. ‘Is the Court of Justice of the European Communities a Constitutional Court?’ in Dierdre Curtin & David O’Keeffe (eds) Constitutional Adjudication in European Community and National Law – Essays for the Hon. Mr. Justice T. F. O’Higgins (Butterworths, 1992). Johnson, Paul & Silvia Falcetta. ‘Same-Sex Marriage and Article 12 of the European Convention on Human Rights’ in Chris Ashford & Alexander Maine (eds) Research Handbook on Gender, Sexuality and the Law (Edward Elgar, 2020). Johnson, Paul. Homosexuality and the European Court of Human Rights (Routledge, 2014). Knook, Allard. (2005). ‘The Court, the Charter, and the Vertical Division of Powers in the European Union,’ Common Market Law Review 42: 367–98.

The politics of sexual identity and the emerging constitutional battles in Europe  549 Kochenov, Dimitry & Uladzislau Belavusau. (2020). ‘After the celebration: Marriage equality in EU Law post-Coman in eight questions and some further thoughts,’ Maastricht Journal of European and Comparative Law 27: 549–72. Mole, Richard C.M. ‘Nationalism and Homophobia in Central and Eastern Europe’ in Koen Slootmaeckers, Heleen Touquet & Peter Vermeersch (eds) The EU Enlargement and Gay Politics: The Impact of Eastern Enlargement on Rights, Activism and Prejudice (Palgrave Macmillan, 2016). Rainey, Bernadette, Pamela McCormick & Clare Ovey. Jacobs, White and Ovey: The European Convention on Human Rights (Oxford University Press, 2020). Rijpma, Jorrit J. (2019). ‘You Gotta Let Love Move: ECJ 5 June 2018, Case C-673/16, Coman, Hamilton, Accept v. Inspectoratul General pentru Imigrări,’ European Constitutional Law Review 15: 324–39. Schütze, Robert. (2009). ‘On “Federal” Ground: The European Union as an (inter)national phenomenon,’ Common Market Law Review 46: 1069–105. Sharpston, Eleanor & Geert de Baere, ‘The Court of Justice as a Constitutional Adjudicator’ in Anthony Arnull, Catherine Barnard, Michael Dougan and Eleanor Spaventa (eds) A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Hart, 2011) 124. Terpan, Fabian & Sabine Saurugger. ‘The politics of the Court of Justice of the European Union’ in Paul James Cardwell & Marie-Pierre Granger (eds) Research Handbook on the Politics of EU Law (Edward Elgar, 2020). Tryfonidou, Alina & Robert Wintemute. ‘Obstacles to the Free Movement of Rainbow Families in the EU’, Policy Department for Citizens’ Rights and Constitutional Affairs, Directorate-General for Internal Policies, PE 671.505, March 2021 (available at https://​www​.europarl​.europa​.eu/​RegData/​ etudes/​STUD/​2021/​671505/​IPOL​_STU(2021)671505​_EN​.pdf). Tryfonidou, Alina. ‘Discrimination on the Grounds of Sexual Orientation and Gender Identity’ in Stefan Vogenauer & Stephen Weatherill (eds) General Principles of Law: European and Comparative Perspectives (Hart, 2017). Tryfonidou, Alina. ‘Law and sexual minority rights in the EU: navigating a political minefield’ in Paul James Cardwell & Marie-Pierre Granger (eds) Research Handbook on the Politics of EU Law (Edward Elgar, 2020a). Tryfonidou, Alina. (2020b). ‘Positive state obligations under European law: A tool for achieving substantive equality for sexual minorities in Europe,’ Erasmus Law Review 13: 98–112. Tryfonidou, Alina. (2019). ‘The ECJ Recognises the Right of Same-Sex Spouses to Move Freely Between EU Member States: The Coman ruling,’ European Law Review 44: 663. Tryfonidou, Alina. (2020c). ‘Case C-507/18 NH v Associazione Avvocatura per I diritti LGBTI – Rete Lenford: Homophobic speech and EU anti-discrimination law,’ Maastricht Journal of European and Comparative Law 27: 513–21. Tryfonidou, Alina. (2023). ‘Cross-Border Legal Recognition of Parenthood in the EU’, Policy Department for Citizens’ Rights and Constitutional Affairs, Directorate-General for Internal Policies, PE 746.632, April 2023 (available at https://​www​.europarl​.europa​.eu/​thinktank/​en/​document/​IPOL​ _STU(2023)746632). Van der Schyff, Gerhard. (2012). ‘The constitutional relationship between the European Union and its Member States: the role of national identity in article 4(2) TEU,’ European Law Review 37: 563–84. Waaldijk, Kees. ‘What First, What Later? Patterns in the Legal Recognition of Same-Sex Partners in European Countries’ in Marie Digoix (ed) Same-Sex Families and Legal Recognition in Europe (Springer, 2020). Weatherill, Stephen. (2004). ‘Competence Creep and Competence Control,’ Yearbook of European Law 23: 1–55. Weiler, Joseph H.H. (2005). ‘On the power of the Word: Europe’s constitutional iconography,’ International Journal of Constitutional Law 3: 173–90. Wintemute, Robert. ‘In Extending Human Rights, which European Court is Substantively “Braver” and Procedurally “Fitter”? The Example of Sexual Orientation and Gender Identity Discrimination’ in Sonia Morano-Foadi & Lucy Vickers (eds) Fundamental Rights in the EU: A Matter for Two Courts (Hart, 2015).

30. Abstract citizenship in the age of concrete human rights Dimitry Kochenov1

30.1

TWO CONTRADICTIONS AT THE HEART OF CONTEMPORARY CITIZENSHIP

Citizenship – whenever the concept is used – is taken to be part of our ‘natural world’:2 living without it is unthinkable for many, no matter how many contradictions this legally-driven and deeply entrenched social construct actually entails. The core contradictions this chapter dwells on are two. The first contradiction promoted by the concept of citizenship arises between an abstract claim of equality among those who ‘belong’ and citizenship’s consequential nature in terms of the unequal distribution of rights and liabilities in the world, as citizenships vary radically in quality.3 More still, in a world where inequalities are spatialised and borders signify exclusion from opportunity4 and as long as these are policed by citizenship – blood-based segregation between the haves and have nots – citizenship emerges as the core tool of exclusion of the racialised ‘other’,5 not belonging to the global aristocracy of the former colonisers, the ‘super citizens’.6 Citizenship is thus the defining element of the global (to a large extent race-based) segregation, the system that I characterised elsewhere as ‘passport apartheid’.7 Not only is citizenship incompatible with equality. It is designed to deliver strict arbitrary segregation. While inherently rooted in a nation state, a ‘citizen’ is an abstraction defined by the status: a ‘Pakistani’ cannot be compared to a ‘Frenchman’. The abstractness of citizenship is at the centre of the second contradiction that comes to light with renewed force today. This contradiction arises between citizenship and rights, which in the age of human rights ideology,8 are precisely concrete and individualisable. The deep cleavage between citizenship and human rights is thus an almost natural and clearly identifiable phenomenon, which is reinforced, as we shall see, by both the universalist claims of human rights, which are made through the vehicle

This chapter draws on my work produced during the fellowships at COMPAS, School of Anthropology, University of Oxford (Hilary term, 2021) and the Princeton School of International Affairs, Princeton University (Spring semester, 2020). I am grateful to Sophie Meunier and Madeleine Sumption for the kind invitations and draw on my Oxford University COMPAS Working Paper no. 156 (2021), completed in this context. Mark Tushnet’s helpful comments and encouragement to develop the argument further are gratefully acknowledged. 2 Searle (1997). 3 Kochenov & Lindeboom (2017); Kochenov & Lindeboom (2020a). 4 Milanović (2016). 5 Kochenov (2019a). 6 Boatcă (2023); Boatcă (2020), 284. 7 Kochenov (2020). 8 Frankenberg (2014). 1

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Abstract citizenship in the age of concrete human rights  551 of a ‘person’ – a relative newcomer to constitutional thought9 – and through the jurisprudence of some international courts, most notably the European Court of Human Rights,10 as well as the European Court of Justice to a lesser extent.11 These do not always accept an argument ‘they are not a citizen’ as a sufficient ground for dehumanisation and exclusion from dignity, which this argument by design entails in the unequal racialised world where borders are militarised and passport apartheid is omnipresent.12 Leading democracies prefer to lavishly fund and orchestrate the outsourcing of torture and killing of the racialised ‘citizenship poor’ instead living up to the human rights standards.13 Not only is citizenship inherently at odds with human rights. It is designed to undermine human rights claims made by the racialised barbarian (read ‘foreign’) ‘others’14 – and the advent of the ‘person’ has little chance to change this, as we shall see.

2.

CITIZENSHIP IS A HARSH CASTE ENFORCEMENT TOOL TO RENDER EQUALITY MOOT

Distributed like prizes in a lottery where four-fifths of the world’s population loses, by getting sub-standard citizenship statuses confined to bringing liabilities rather than rights,15 citizenship is clothed in the language of self-determination and freedom, elevating hypocrisy as one of the status’s core features. Indeed, citizenship’s connection to ‘freedom’ and ‘self-determination’ usually stops making any sense at the boundaries of the most affluent Western states – just as its whitewashing through democracy rationale: the majority of the citizens in the world do not live in a democracy and the number of democracies is shrinking fast as we speak. Citizenship remains. Citizenship for most of the world’s population is thus an empty rhetor-

Bosniak (2010). In particular, the rise of Article 8 ECHR jurisprudence prohibiting, in numerous cases, deportations to the country of citizenship, has created something akin to a de facto ‘personhood’ nationality, altering the legal reality of ‘citizenship’ to a great degree. For one of the first notable examples, see the Concurring Opinion of Judge Martens in Beldjoudi (Beldjoudi v. France No. 12083/86 (ECtHR Chamber, 26 March 1993); Jeunesse v. Netherlands No. 12738/10 (ECtHR Grand Chamber, 3 October 2016). This trend, although markedly counter-orthodox in citizenship matters, and deeply empowering at the individual level, has been criticised in the literature (e.g. Thym (2008)) and is not yet a mainstream position of the European Court of Justice: Adam & Van Elsuwege (2017). The trend definitely adds to the picture of the ongoing contestation of the normative foundations of citizenship and is observable also in the practice of the UN Committee on Human Rights (UNCHR), which is in tune with ECtHR practice: Stewart v. Canada, UN Doc CCPR/C/58/D/538/1993 (1 November 1996) (‘no one shall be arbitrarily deprived of the right to enter his own country’ (quoting Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR), GA Res 2200A (XXI), UN Doc A/6316 (December 16, 1966)). See also UNCHR, General Comment 27, Freedom of Movement (Article 12), UN Doc CCPR/C/21/Rev.1/ Add.9 (2 November 1999). According to the Committee, the scope of ‘his own country’ in the sense of Article 12 ICCPR is broader than ‘his country of nationality’ (at para 20). 11 Unlike its Strasbourg interlocutor, the Court of Justice seems to be building a case-law, which turns the human rights-inspired attention to the actual situation of the individual as a way to dismiss necessarily abstract, citizenship-based claims to rights. For an analysis, see, Kochenov (2016), 133. 12 cf. Keshavarz (2019). 13 Kochenov & Ganty (2022). 14 Achiume (2022); Achiume (2021); Munshi (2016b). 15 Kochenov (2023); Shachar (2009). 9



10

552  Research handbook on the politics of constitutional law ical shell deployed to perpetuate abuse, dispossession, and exclusion. All are divided by ius sanguinis and ius soli – essentially coming down to simple bloodlines16 – into on the one hand super-citizens,17 i.e. a happy minority for whom the world is a friendly and open globalised playground – and on the other citizenship’s victims,18 i.e. those miserable many who are caged within steep walls by ‘their’ blood to spaces of no opportunity. In-between spaces are also possible: Dubai, where anyone can settle but not naturalise, comes to mind.19 The story is not black and white: a whole spectrum of shades and hues of status quality emerges, as Justin Lindeboom and I have described elsewhere in detail.20 This perspective on citizenship allows questioning the deeply unfounded harmful presumptions held by the UNHCR and many scholars of what citizenship is.21 This is particularly true of the premise that any citizenship is better than statelessness. In a context where the quality of citizenships varies to such a significant degree as we observe now across the world, it is often better to be stateless in a particular space of opportunity, i.e. Germany or France, rather than be a victim of a third-rate citizenship.22 In other words, presenting statelessness as the main problem in contemporary international citizenship law,23 as opposed to the existence of the citizenship statuses which fail their bearers in every respect, is a mistaken perspective, bound to trigger erroneous policy and personal tragedies.24 By fighting statelessness and making no distinction between a super-citizenship and the status of a victim of citizenship, pretending, quite absurdly, that being a Kyrgyz and being Swiss is roughly the same, contemporary international law reinforces the inequitable realities of caste segregation of the world population into the super-citizens and the rest. Pretending that assignment to a caste as such, rather than which particular caste one is assigned to, is the crucial element in rooting out basic injustices related to contemporary citizenship or the lack thereof, is as untenable as it is accepted by the UNHCR and UNHCR-friendly scholars. By its very nature citizenship is a classic example of a totalitarian governance tool in action: while the totality of our rights and obligations as well as the very horizon of opportunities determining all the key aspects of one’s life is directly dependent on it, its assignment at birth is not a matter of choice or consent in the absolute majority of cases.25 Moreover, international law reinforces a reality where, once imposed, this caste assignment is extremely difficult to object to: where statelessness as such rather than a sub-standard status of a victim of citizenship is viewed as a problem, a sub-standard status becomes difficult to get rid of as a result, no matter the circumstances. This development is relatively new, as before World War II In the absolute majority of cases at least one parent of any ‘ius soli kid’ is a citizen, which means that both ius soli and ius sanguinis come down to a shorthand for bloodline transmission of privilege: the preservation of the aristocracy of the high born in this global world where the majority of the population remain rightless plebs: Kochenov (2021). 17 Kochenov (2019a), 239. 18 For the full version of this argument, please see my Oxford COMPAS Working Paper No 156 ‘Victims of Citizenship’ (2021), on which this chapter draws. 19 Milanović, (2016), 152. 20 Kochenov & Lindeboom (2020b). 21 For a crucial exception, see Swider (2018). 22 Swider (2020). 23 This approach reflects the dominant paradigm in international citizenship law and citizenship studies: Weis (1956); Edwards & van Waas (2014). 24 Swider (2020). 25 On citizenship totalitarianism as the starting point of analysis, see Kochenov (2019a). 16

Abstract citizenship in the age of concrete human rights  553 citizenship could be disposed of without acquiring a new one, benefiting plenty of people, from Nietzsche and Einstein to countless others26 for whom statelessness – sometimes only intermittent, but still statelessness for a time – was a choice and reflection of their deeply-held convictions and personal preferences. The international world-wide fight against statelessness thus oppresses the holders of second-rate citizenships deeply, undermining their position even further than the national legal systems do. In doing so, it amplifies the role of citizenship globally, as an obligatory caste assignment against the interests of the majority of individuals and in direct contradiction with the idea that citizenship should be connected with rights, since a large share of citizenships is not. The consequence of holding such citizenships is to be caged in a caste-assigned space of no opportunity and to render any human rights claims less persuasive, if not dismissible. The majority of the academic literature has seemingly taken upon itself to justify the status quo, if not actively, to engage in co-creating the rightless victims of citizenship. Indeed, it has laboured under an overwhelmingly Western – i.e. super-citizens’ – perspective,27 which is also, to agree with Linda Bosniak,28 purely nationalist in essence even if presented as seemingly neutral or even critical.29 Given that, once again, the core loci of exclusion are the borders to the spaces in the world to which the victims of citizenship are assigned – as Branko Milanović convincingly teaches us30 – addressing the plight of those who are already ‘in’ is not enough to prevent citizenship from shrinking the horizon of opportunities of its victims.31 Elimination of a large chunk of the resident victims of citizenship does not affect the normative inconsistencies at the citizenship’s core: a status of rights and liberty writ on a constitutional parchment, citizenship has emerged as a blood-based global tool for the distribution of inequalities and exclusion. Citizenship is a global tool of totalitarian racialised segregation.

3.

CITIZENSHIP IS ANTITHETICAL TO THE VERY IDEA OF HUMAN RIGHTS

Citizenship sometimes comes with rights, one of which is dominant: the right to enter the country of one’s nationality and stay there. Other citizenship rights sometimes include but are not limited in the majority of jurisdictions to the right to remain and work in the territory under the jurisdiction of the authority in question,32 the right not to be deported,33 political rights (in

Pais (1982), 41, 45; Prideaux (2018), 46. cf. Sadiq (2017), 178. 28 Bosniak (2006), 5–9; and further Tully (2014). See also crucially Christian Joppke’s work on citizenship and migration, virtually all of which could stand as an illustration of this point. 29 To promote a peculiar Western perspective as the only acceptable take on personhood in law, while ignoring its negative effects on innumerable populations worldwide has been one of the citizenship’s signature features as a colonial project: Tully (2014); Schinkel (2018); Boatcă (2015). See also Jessurun d’Oliveira (2023). 30 Milanović (2016). 31 Roy (2023). 32 Of course the opposite is also frequently true: particular citizenships can ban holders from certain territories. See, for instance, Ganty, Kochenov & Roy (2023). 33 Anderson, Gibney & Paoletti (2011). The EU is a notable exception here, as the European Arrest Warrant system renders this right moot – an important loss in the context of diminishing procedural 26 27

554  Research handbook on the politics of constitutional law the minority of jurisdictions in the world where there is at least an imitation of democracy34), and the entitlement to non-discrimination among citizens. One should not be misled by such lists. In a world that is territorial, pretty much all rights depend on the authorities in charge of the place where one happens to be. Against this background the absence of a human right to enter the loci where such rights are protected, meaning where they exist in practice, amounts to the denial of human rights. Given that citizenship is the most important tool of localising the world population in space, making human rights inaccessible to the majority of the population of the world is citizenship’s key feature as a concept. Citizenship is thus the enemy of the very idea of universal human rights par excellence. Consequently, approaching citizenship as a right to have rights, following Hannah Arendt,35 emerges as a grotesque misrepresentation in the contemporary world, where the majority of citizenships are bundles of liabilities for their holders and have little to do with rights beyond, precisely, the point of making human rights inaccessible due to the strict assignment of the holders of the second and third-rate citizenship statuses to the caged spaces of no opportunity. This has been the tragedy of citizenship all along, as James Tully wonderfully explained: the racist colonial nature of the status has been almost completely ignored by the commentators.36 Reserved for the well-off white males, citizenship as a concept was meaningless for the colonials and the subjects of the countries, which were not ‘civilised’ as per the dominant racist international law doctrine of the day, let alone the serfs, indentured labourers and, especially, slaves.37 Now that race, which used to be the main disqualifier from rights globally irrespective of the citizenship of the racialised other, has been replaced with citizenship tout court, as I explained elsewhere,38 the global segregationist function of citizenship is impossible to ignore: while before an official turn of global law to repudiate open racism a British subject from Ceylon would be banned from Canada and the US on the basis of race and geographical origin respectively, today she will most likely never see New York or Toronto since she is a ‘Sri Lankan’. Citizenship has thus globally taken over the function of race in dismissing the rights claims of the former colonials. Belonging, a legal fiction established by the sovereign (and unrelated to your subjective feelings), is often cited among the elements of citizenship assumed to engender some justifying force – to reinforce the concept of citizenship. In essence, though, ‘belonging’ is entirely unnecessary and on closer scrutiny the recognition of belonging is a process strikingly similar to the one regulating the assignment of the status in the first place, however ‘objective’ the sovereign pretends such belonging to be. No matter how much you think you belong, a change in the law can always make you an outcast and a foreigner, as so many experienced in Germany in 1935,39 in Latvia and Estonia in 1991,40 in post-Yugoslav Slovenia41 and most

guarantees and the lowering rule of law and human rights protection standards in some Member States of the Union: Bárd & van Ballegooij (2018). 34 The Economist, ‘The Economist Intelligence Unit’s Democracy Index’ (updated annually). 35 Arendt (1979 [1951]), 226. 36 Tully (2014). See also Kochenov (2023) and Jessurun d’Oliveira (2023). 37 Jessurun d’Oliveira (2023 and 2022). 38 Kochenov (2019a), 96 et seq. 39 Rundle (2009), 69–76. 40 Visek (1997). 41 Zorn (2011), 195.

Abstract citizenship in the age of concrete human rights  555 recently in the UK following Brexit:42 demonstrating the exclusionary core of citizenship in action – shunting aside all the popular rhetoric of ‘I am proud and I belong’. Those who are proclaimed ‘not to belong’ are excluded from the territory controlled by the authority issuing citizenship regardless of what they themselves think: they cannot live and work there, unless a specific authorisation is granted. Near-total immunity to individual self-determination underpins citizenship’s abstract totalitarian nature and helps it in its principled world-wide war against equality and human rights. Citizenship’s success in this endeavour is universal and does not depend on the form of the government underpinning the issuing authority. The US, Estonia, UAE, or Putin’s Russia are equally effective in realising the potential of citizenship’s exclusionary DNA. The absence of the non-citizens’ automatic right to enter aside,43 the growing interpenetration of citizenship’s rights as human rights has led to the relative – and necessarily welcome – trivialisation of the status of citizenship and growing attempts to theorise a more faithful correspondence between the actual society under the authority in question and the citizenry recognised under the same authority.44 Once the rigidity of the citizens–non-citizens divide is questioned in terms of the corresponding rights and entitlements, abuses of power relying on this divide as their chief legal tool and only justification are made difficult. Of course, history knows plentiful examples of such unfortunate deployment of the status of citizenship. Think, for example, of the Nurnberg laws inspired by the US racism of the day,45 which excluded Germany’s Jewry from the full status of citizenship as a way to justify their formal exclusion from its key rights.46 South-African apartheid ‘homelands’, designed to distribute citizenships of non-recognised all-black puppet states, like Bophuthatswana and Transkei,47 to grant minorities ‘full rights abroad’48 are equally good examples. More recently, the Latvian and Estonian policies of humiliating Russian, Ukrainian, and Jewish minorities, based precisely on the same strategy of denying citizenship to supply a justification for the exclusion of people from key rights did not work as well: under pressure from international institutions, the majority of former ‘citizenship’ rights were extended to the minorities as ‘human’ rights.49 These examples were efforts de facto to turn ‘non-citizenship’ statuses into racist second-rate citizenships reserved for minority members only.50 That they are challenged by human rights-based reasoning is to be welcomed. In other words, ‘they are not citizens’ is no longer an automatically accepted pretext to abuse settled resident populations – it works everywhere, but at least it does not come unquestioned. The proclamation of equal rights at the inception of citizenship was the ideological tool that facilitated the de facto socioeconomic exclusion and legitimation of the authority in charge of the preservation of the status quo, solidifying inequalities and paralysing social change as T.H.

Kochenov (2017a); van den Brink & Kochenov (2019). But see Carens (1987). 44 Joppke (2023). 45 Whitman (2017). 46 Müller (1991). 47 At some point the hive mind of Wikipedia un-ironically included Nelson Mandela among the ‘notable citizens’ of this ‘state’, which is not legalistically incorrect, per se. 48 See e.g. South African, Bantu Homelands Citizenship Act 1970, which instituted the denaturalization of the black majority during apartheid. Cf. Dugard (1980). 49 Järve (2013). 50 Kochenov & Dimitrovs (2016). 42 43

556  Research handbook on the politics of constitutional law Marshall explained.51 The same applied to political, sexual, and racial exclusion, which were core aims of citizenship at its inception, ensuring that it worked as an efficient governing tool without producing any significant risks of challenging the elites.52 Classical modern citizenship thus did not even remotely overlap with the actual reality on the ground, as James Tully has wonderfully described:53 it endowed with rights as opposed to empty proclamations only a tiny minority in any society – usually white males able to pass the property census. Women counted for so little that their very legal being as citizens could be retained only as long as they did not marry a foreigner or a stateless person: faithfulness to the ‘nation’ was a must.54 Passing on citizenship to their own kids was out of reach for them: granting citizenship was a male-only affair.55 The gradual extension of human rights brought the reality on the ground closer to the initial rhetorical ideal, also empowering further contestations of exclusions within the ambit of citizenship: consider for instance the sexual citizenship story,56 queer citizenship57 or the ongoing animal citizenship debate.58 This resulted ultimately in the gradual disappearance of the rigid divide between citizenship rights and human rights for those legally present within the territory controlled by a given liberal democratic authority. The same did not apply to those who were either kicked out or always remained outside, let alone the majority of the population of the world: those assigned by their blood to spaces of no opportunity. This is so since entering the territory – the most sacred right of citizenship coupled with its double, the right not to be deported from the territory – remained the direct offspring of citizenship status par excellence, largely unaffected by human rights thinking at all. Indeed, as a consequence there is no internationally recognised (human) right to enter any state of your choosing, we are told59 – even if the arguments to support the contrary position are attractive and sound, as Joseph Carens has demonstrated.60 Moreover, the dismissal of such sound arguments in international law is quite recent, as Sir Richard Plender’s research shows:61 As recently as at the end of the nineteenth century there continued to be support for the view that the power to control the ingress and egress of aliens was circumscribed by international law. At meetings of the Institute of International Law in Hamburg in 1891, Geneva in 1892 and Lausanne in 1898 the view was expressed that the first of the restrictions imposed on States by international law is that it cannot isolate itself from foreign States or their subjects.

While the residue of pre-human rights thinking, predating the tectonic shifts in the understanding and practice of citizenship inside the territories of the wealthy Western democracies, still persists and could explain inter alia the backlash apparent in the regulation of access to the

Marshall (1992 [1949]); Ferrajoli (1994), 264–68. Kochenov (2019a), 121–25. 53 Tully (2014). 54 cf. e.g. Weil (2012). 55 Abrams (2011). 56 Bełavusaŭ (2017) (and the literature cited therein). 57 Kochenov (2009b); Belavusaŭ & Kochenov (2016), 69. 58 Donaldson & Kymlicka (2011); Edmundson (2015). 59 Which fact renders the proclaimed right to leave entirely ephemeral too: Kochenov (2012). 60 See for a magisterial treatment Carens (2013). 61 Plender (1972), 2 (footnote omitted). See also the second edition (1988), as well as Audrey Macklin’s chapter in this volume. 51 52

Abstract citizenship in the age of concrete human rights  557 status of citizenship, the paradigm has not shifted at all for those willing to cross the border: not only DDR border guards shoot and kill. So while all the global passport apartheid system of law and order makes it virtually impossible for the victims of citizenship to cross from the spaces of no opportunity of former colonies and ‘non-civilised’ spaces into the territories controlled by the wealthy liberal democracies and dozens of thousands die every year trying,62 also within the territories of the former coloniser states the shifts are apparent. Naturalisations are increasingly made dependent on elaborate rites de passage in the form of ‘culture’ and ‘values’ tests, which settled foreigners are required to pass to acquire the formal status of citizenship, however absurd the ‘neutral’ premise of this approach might be, as Willem Schinkel and Adrian Favell explain.63 This ‘integration’ rationale is now deployed in novel contexts, sometimes to increase the othering of citizens with immigrant backgrounds and of the poor, as well as to undermine the functioning of European citizenship as a status based on non-discrimination on the basis of nationality, as Sarah Ganty has shown.64 Interestingly, merit is frequently invoked as a justification for dismissing the claims of the former colonials to equality and inclusion.65 The assumption behind such tests is as problematic as it is commonplace: cultures located beyond our borders are a barbarian non-equivalent of our own.66 Implementing this assumption in practice is even more difficult than embracing it rationally, as the proclaimed core legal value of any liberal democracy today is tolerance.67 Tolerance is what all the ‘specificity testing’ is necessarily bound to come down to.68 In this sense, testing the specificity of the unique Danish culture and of an even more distinctive Swiss one amounts in fact to testing one and the same thing.69 Officially, though, citizenship is still associated with the idea of a ‘good citizen’, someone who fully respects the local law and is loyal to whatever state or political system they were born into: a much glorified meekness ideal, aiming to make the society more governable and frowning both at the indifferent and those who want to overturn the regime or introduce deep changes into the core aspects of the legal system/society in question.70 Being a ‘good citizen’, i.e. approving of all the official mantras underpinning the public authority claiming that person at any given moment, is thus the core duty of citizenship today – just as it was 100 years ago.71 The indifferent have to be reeducated to turn out to vote for the European Parliament,72 to love

Kochenov (2020). Schinkel (2018); Schinkel (2013); Favell (2019). 64 Ganty (2021a). For the typology of ‘integration’ approaches in the EU, where they flourish, see e.g. Ganty (2021b). 65 See ch 27 by Sarah Ganty in this volume. 66 However nasty, this assumption seems to be ‘natural’: Lerner (1977), 29. For the whole picture, see, Lerner & Clayton (2011). 67 Kochenov (2019a), 196. Contrast the mantras of tolerance with the virtually official Islamophobia practiced in Europe today: Joppke (2010b). 68 This presents traditional accounts of citizenship in a radically new light: Bosniak (2000). See also Kuisma (2008); Rubinstein & Adler (2000); Lipschutz (1999). 69 Kochenov (2011). 70 Kochenov (2019a), 159–96. 71 Ibid. 72 The recurrent trope is that citizens somehow ‘fail to understand’ their own rights. See e.g. point 19, European Parliament’s Resolution of 12 December 2017 on the EU Citizenship Report 2017: Strengthening Citizens’ Rights in a Union of Democratic Change (2017/2069(INI)): ‘organise an 62 63

558  Research handbook on the politics of constitutional law the Communist Party, to put a swastika ornament on the Christmas tree, not to get a boyfriend of a ‘different race’, to not skip church – and so on. Ideally, a good citizen is thus actively complacent: an Eagle Scout, a Hitler Jügend leader, a public morality vigilante in Iran. The concept of a ‘good citizen’ is agnostic to human rights, necessitating, paraphrasing Walzer, a certain ‘poverty of spirit’ (as those good citizens, who willingly enlisted to fight in World War I in Walzer’s memorable example).73 Making citizenship ‘more inclusive’ and ‘good’ does not redeem citizenship. The gradual extension of the scope of those enjoying the rights of citizenship among the actual bearers of the status is a well-known story of women, the Indigenous peoples and other minorities. The gradual extension of those enjoying the status of citizenship in full is, again, the story of the ‘coloureds’ ‘unfit for citizenship’, of migrants, of women, who are now capable of make their child a citizen, of the Indigenous minorities, and of the colonial subjects. Once it became unacceptable not to extend the rights of citizenship to settled minority categories, not allowing them to pass on citizenship became obviously problematised, just as the right of other minorities to enjoy access to the status as such.74 As the gap between the scope of nominal citizens and the scope of citizens with citizenship rights was drastically diminishing (women got the right to vote and pass on the citizenship status to their descendants, for instance75), coupled with the extension of the status of citizenship to the formerly excluded minority groups (think of the extension of the Australian citizenship to the aboriginals, for instance76), the ideological distinction between citizens and non-citizens in a society expectedly came to be problematised and contested, bringing about the increasing extension of rights, coupled with a grant of a (theoretical) potential to acquire citizenship status to any settled resident of any modern liberal democratic state: the majority of Western jurisdictions today do not know formerly commonplace disqualifications related to race and religion, for instance. Plenty of the spaces of no opportunity chose not to follow this trend: women do not pass on their citizenship in many corners of the Arab world, while numerous African constitutions remain openly racist in their citizenship provisions.77 Yet, such counter-examples are parochial enough not to disturb the coherence of the main trend we are witnessing. There is one important qualification to this story: extending rights and broadening the scope of those in possession of the status uniquely concerns those already in the territory controlled by the authority in charge. In the near-total absence of an effective non-citizenship-based right to enter, citizenship punishing totalitarian exclusivity stands significantly reinforced.78

EU-wide information and awareness-raising campaign on EU citizenship rights in order to help citizens better understand their rights’ (emphasis added). 73 Walzer (1974). 74 Munshi (2016a). 75 Goldhaber (2007), 15–26. 76 Mercer (2003). 77 See e.g. Manby (2009). 78 This is the reason why the works on the thinning of citizenship and the growth of non-citizens’ rights should necessarily be read cum grano salis.

Abstract citizenship in the age of concrete human rights  559

4.

BRINGING IN THE ‘PERSON’ DOES NOT REDEEM CITIZENSHIP

Exclusion being the core normative foundation of citizenship, it is not a surprise that the status of citizenship enjoyed a more and more wobbly pedestal of glory, as of late, in constitutional theory, rivalled by its more physical and biological double: the person.79 Once the abstract figure of a citizen gives way to a legal recognition of a physical reality of an ordinary human, constitutionalism cannot any more be the same. And this is exactly the move we are increasingly witnessing, which is very strongly attuned, logically, to the several lines of developments outlined above. It would be premature, however, to celebrate this development. In the light of the considerations above, it is possible very broadly to outline the core functions of citizenship as a legal-political concept which the normative core of the notion seeks to achieve. Not surprisingly, personhood, once introduced, does not share these functions with citizenship. Moreover, as is clear from the outset these do not overlap in any way with the objectives of human rights. In this sense a ‘person’ – the creature who human rights safeguards – is in direct opposition to the very idea of a ‘citizen’. This is so, since the core functions of citizenship amount chiefly to three elements: 1. Providing legalistic reasons for exclusion viewed as desirable and expedient by the public authority at a given moment. 2. Ensuring complacency, societal uniformity, and popular legitimation of the powers that be – regardless whether they are democratic and no matter who is in power. 3. Inter-generational perpetuation of the status quo between affluent and poor spaces globally by locking the victims of citizenship out of the spaces of opportunity. All three are obviously and clearly antithetical to human rights. Quite naturally, the successful operation of citizenship today means one thing: a thoroughgoing exclusion of the racialised victims of citizenship from the spaces of opportunity based on the caste assignment, which is unjustifiable within the constellation of the core ideas informing modern liberal democracies internally and at the same time is harshly imposed throughout the whole world. Should those brought down by this inequitable system wish to escape such exclusion, then naturalisation into a super-citizen – the acquisition of an elite status in one of the rich democracies in the world – is an absolute must. Again, just as in antiquity when a slave could buy freedom, a victim of citizenship must invest time, talent, and money to acquire a ‘compensatory citizenship’, as Yossi Harpaz explains in detail in his scholarship.80 The most fundamental normative evolution unfolding in the world of citizenship over the last decades is a direct consequence of the key developments described above: the extension of meaningful rights to those not in possession of the formal status of citizenship. That is, the ‘citizen’ is being gradually replaced by a ‘person’ in the global constitutional parlance and theorising, as Linda Bosniak has also underlined.81 This is no small feat: changing a single word signals a radical rethinking of the basics of modern constitutional systems marked by the intense penetration of the concrete social facts into abstract legal realities, overturning

Bosniak (2010). Harpaz (2023) (and the literature cited therein). 81 Bosniak (2010). 79 80

560  Research handbook on the politics of constitutional law established constitutional underpinnings. This fundamental transformation draws entirely on the unsustainability – in the context of the human rights-aware democratic constitutionalism – of the traditional core normative assumptions informing citizenship, which are unsurprisingly being rethought. Analysed together, the above considerations boast far-reaching effects on citizenship’s role in the context of legitimising the governing authority: that is, its key tasks and its key normative predestination. Citizenship’s role in the narrative of self-governance and democracy is thus not the same as it had been previously. What remains unchanged is its ability to produce victims of citizenship and ignore their plight. The core issue here is basic and has to do with the traditional approaches to the core aspects of legitimacy in a political community: the justification of violence and of the obligation to submit to violence inflicted by the authority in charge, as a necessary element of being ‘free,’ which harks back to Jean Bodin82 and is rooted in the Christian soteriology of the day.83 If only citizens and no one else are counted as the constituents of the community from whom legitimacy officially emanates – call it the demos, the nation, or the political community – then the picture of what the state and necessarily the law is about is quite different from one describing a situation where all humans under the same authority are counted, non-citizens included. Indeed, why not establish humans as the basis of the demos, the nation, or the political community? While legal and social truths are bound to overlap for the law to be effective84 – and knowing the bio-power of the contemporary state in shaping life itself to the whims of the fashion of the day85 – making citizens is still much easier than acknowledging humans. Making a citizen is an ideology-inspired legal exercise, implying a choice among the available bodies capable of being useful, or not, to the achievement of the authority’s goals at any given time, whatever those might be. Those bodies which are perceived less useful are simply excluded from rights bearing status, nonexistent in the eyes of the law. Exclusions can be on any basis. They can be on geographic place of origin, race, religion, education, language, time – you name it – and a legal-historical example will be found. Citizenship’s capacity to exclude is its core function, which means that in the ‘golden days’ of citizenship – the mythical days of the concept’s unquestioned authority – exclusion at the level of the legal status could only rarely be questioned, if at all: equality is among citizens, remember? As a consequence, the authority that works with ‘citizens’ enjoys an almost universal carte blanche: you create ethnic electorates,86 you assign the status of those who are not white enough to suit your preference to the ‘ancestral homelands’ referred to above,87 and you declare those you send away as ideologically88 or racially deficient and for that reason non-citizens.89 The long history of flagrant discrimination is rich and diverse. Under this paradigm, the core question before looking at rights, entitlements, duties, and equality claims is who is a citizen in this society? Those who are not citizens are entitled to nothing and this is legally and politically right, even if frequently also morally unjust.

84 85 86 87 88 82 83

cf. Franklin (1963), discussed in detail in Kim (2000), 193. Kim (2000), 193. Bourdieu (1987). Flear (2007). Visek (1997). Dugard (1980). Chamberlain (2006).

Abstract citizenship in the age of concrete human rights  561 Such reasoning cannot hold with persons: recognising the person as the figure of importance for the purposes of constitutional law, as a component part of the demos, however humble this relative innovation can seem, actually revolutionises the legal understanding of our society, because it exposes for criticism and legal contestation the status assignment decisions which cannot in most cases be contested under the citizenship paradigm. Moreover, it also flips the sequence of status-rights interactions. The core question here is why this person is not entitled to a particular right. A simple ‘she is not a citizen’ response will no longer suffice under the personhood paradigm: a substantive analysis will clearly be required. It goes without saying that the distinction between the ‘status’ and ‘rights’ taken for granted by lawyers is artificial and is not justifiable on all occasions. This development is in line with a broader shift in global constitutionalism, marking a departure from what Moshe Cohen-Eliya and Iddo Porat branded ‘the culture of authority’ in favour of the ‘culture of justification’.90 Once humanity and personhood, not the formal legal status of citizenship, emerges as the key factor behind rights assignment, the relevance of the formal status of citizenship as such is fundamentally reinvented, if not outright diminished, as can already be seen in the Article 8 ECHR jurisprudence of the European Court of Human Rights. Those who are French in fact on the basis of how their lives are lived and their social world is constructed – even if not recognised de jure as French, and even those bearing foreign citizenships – will remain in France protected by the ECHR.91 Under this logic, a place in the nation is not ‘deserved’ through a random act of birth in particular circumstances or by passing humiliating tests of knowledge of the non-existent cultural uniqueness of their place of residence, but by being part of a society – Bauböck’s stakes.92 The threat of the loss of rights assessed in the context of a concrete life project becomes the key factor of importance for the courts to consider, not the legal status of citizenship. Moreover, the harsh consequences of the loss of rights can even prevent the state from denaturalising a person:93 a blending of legal and social reality unheard of before the twenty-first century.94 These two logics are in stark contradiction, but help the victims of citizenship equally badly, which is important to note. Their cleavage separates reasoning which starts from legal facts, from that which starts with social reality. The result is the legal recognition of social facts in a growing array of contexts which pushes personhood as such, not necessarily connected to the formal status of citizenship, to prominence, with far-reaching implications for the relevance of the classical normative picture of citizenship which we know from political theory textbooks.

Cohen-Eliya & Porat (2013). See also the discussion in n 10 above of ECtHR Beldjoudi v. France No. 12083/86 (ECtHR Chamber, 26 March 1993); Jeunesse v. Netherlands No. 12738/10 (ECtHR Grand Chamber, 3 October 2016). 92 Spiro (2018), 204. 93 The European Court of Justice case of Rottmann is the best example, probably: Case C-135/08  Janko Rottman v. Freistaat Bayern ECLI:EU:C:2010:104. The absolute majority of commentators have ignored the fundamental point granting this case overwhelming importance: it is a decision about the status which is based on the rights this status is associated with, an impossibility in the classical citizenship world, as the border line between the legal and social reality, which is the fundamental starting point of pretty much all citizenship theorising, simply disappeared in the court’s reasoning, illustrating the shift we are discussing very well. cf. Kochenov (2013). 94 de Hart (2015); de Hart (2006). 90 91

562  Research handbook on the politics of constitutional law How far can personhood help address the plight of the victims of citizenship who are not ‘here’ and who will never be permitted to build any ‘stakes’ in ‘our society’ – the majority of those punished by citizenship? The critiques of stakeholder approaches to citizenship show that personhood, which is directly connected to the stakeholder approaches, is no panacea. In fact, if it is accepted as a starting point for the distribution of rights in a jurisdiction, it permits the rights and dignity of all the victims of citizenship whom the status of citizenship effectively keeps at bay to be swept away. Ultimately it appears that whether personhood or citizenship are taken as a starting point makes little difference, from the perspective of those victims of citizenship who are outside of the jurisdiction in question. Personhood thus potentially emerges as a counterpart of citizenship – traditionally the key legal tool for sanctioning the erection of a border dividing ‘us’ from ‘them’ based on entirely contingent considerations of political convenience,95 while also creating legally and socially meaningful racial, cultural and linguistic groups – what Bourdieu characterised as the ‘practical activity of “worldmaking”’.96

5.

BRINGING IN THE TERRITORY TO JUSTIFY CITIZENSHIP?

The territoriality of the scope of any concrete citizenship’s core rights is not as straightforward, seemingly, as the texts of the national constitutions would strongly imply, thus altering the concept’s very core: the sovereign territoriality of citizenship cannot any more be assumed,97 just like the idea that this legal status, alone, can provide a solid ground for the equal protection of all the bearers under the law of the authority that distributes the status.98 Even more, the paramount nature of citizenship as the ultimate status of protection, the emanation of the love of the country by definition not extended to those without the status, is in fact not what we see, as the discrimination on the basis of nationality, the core normative ideal of citizenship allowing the bearers to bathe in the rays of their motherland’s love and look down at those who do not deserve this love by virtue of the place of birth, parentage, or both, is outlawed for selected nationalities99 in the European Union100 and is the emergent legal norm for settled foreigners all around the liberal democracies in the world.101 No, France does not love the Frenchmen more than Estonians. Should it happen to be so inclined, this could very well be a violation of EU law for the Commission and the Court of Justice to look into. The foundations of the core meaning of the legal bond that citizenship is have unquestionably evolved in the direction of relative loosening and the reduction in the perceived exclusivity.102 On the invention of the foreigner as a legally-meaningful concept see, Kim (2000). Bourdieu (1987), 838. 97 Kochenov (2019b), 133. 98 Kochenov (2017b) 3. 99 Boeles (2005); Hublet (2009). But not for others, of course, turning the EU into a predominantly personal status-based system, as all the rights the EU guarantees for its citizens in its territory including, most importantly, freedom of movement and settlement as well as non-discrimination on the basis of nationality in the territory of the Union, disappear in their entirety for the non-citizens of the Union, no matter whether legally present in the territory or not: the constitution of the EU is personhood based: Kochenov & Ganty (2022). 100 Article 18 TEU. Davies (2005); Davies (2003). 101 Joppke (2010a); Soysal (1994). The EU is thus among the most notable exceptions from this global trend: Kochenov & Ganty (2022). 102 Spiro (2017). 95 96

Abstract citizenship in the age of concrete human rights  563 In fact, the hitherto unquestioned correlation between the geographical scope of the core citizenship rights and sovereign territory is changing in many places: more and more citizenships around the world secure access to the most important citizenship rights, including residence, work and, also, not infrequently political rights (albeit usually limited to the local level), outside the confines of the sovereign territory whose authority is behind the grant of the legal status of citizenship in the first place. Importantly, this does not only concern the (quasi-) citizenship of the (formerly) subordinated colonies which, through some version of a ‘compact of free association’103 with what used to be the ‘mother country’ would extend the rights in the colonial centre to the former colonial subjects: think of the Micronesians in the US104 or – if I am not stretching it – Belarussians in Russia.105 The logic of opening up the sovereign territory and thus, potentially, the access to the citizenship status as such for each-other’s citizens, first proposed by A.V. Dicey in the end of the nineteenth century,106 while only destined to find cold reception then, began to work well in today’s world. From the Gulf Cooperation Council,107 to Latin America,108 West Africa (at least on paper),109 the Nordic countries110 and, more broadly, the EU,111 the dislocation of the citizenship–sovereign territory correlation has turned into a fundamentally important trend in the contemporary citizenship evolution, what one might brand as the rise of inter-citizenships penetrating two or more jurisdictions via the same legal status enhanced through the binding requirement of mutual recognition.112 The gap between the poor and the rich societies is not going away and the ‘paper citizens’113 of the global South have radically different rights and life chances compared with the citizens of the most affluent jurisdictions in the world.114 In a world where capital moves relatively freely, while the holders of the majority of the third world nationalities are locked within the boundaries of their states, centrality of the preservation of the inequality function of citizenship is crystal-clear and all the recent developments in the world of citizenship law have not made citizenship any more human rights-friendly than before, merely enlarging the abyss that separates, on the one hand, the super citizenships, which de facto grant access to a handful of sets of citizenship rights, granting access to a number of territories of opportunity at once – and, on the other, the victims of citizenship, who are locked without rights in the spaces of no opportunity and for whom their citizenship is a liability making appeals to rights superfluous, since the main ‘right’ is to remain where rights are unavailable and where realising full human potential is impossible. The new territoriality of citizenship, which no longer implies a strict correlation between the territory of rights controlled by the issuing authority and the status of citizenship, has

Keitner & Reisman (2003). Dang (2011). 105 Pirker & Entin (2020); Voronina (2014). See also Karliuk (2023). 106 Dyer (1897). The new status was to be inaugurated on 1 January 1901, but the proposal did not generate enough following for this plan to become a reality. 107 Babar (2011). 108 Acosta Arcarazo & Freier (2015). See also Acosta Arcarazo & Geddes (2014). 109 Adepoju (2002); Adepoju (2009), 17. 110 Kuisma (2007). 111 Kochenov (2009a). 112 Kochenov (2019b). 113 Sadiq (2010). 114 Milanović (2016). 103 104

564  Research handbook on the politics of constitutional law far-reaching implications for the coherence of most commonplace approaches to justifying citizenship in the West. Most crucially, since national-level political rights usually do not follow the new territoriality logic, self-determination and democracy are not as persuasive any more: a Pole can reside in Switzerland by virtue of their citizenship and a bilateral EU-Swiss agreement, Switzerland thereby getting fully included into the territory of rights, including residence, work, and non-discrimination, offered by Polish citizenship, yet, absent political rights the territory of democratic self-governance of the Polish demos remains limited to that of the Polish state, begging questions about the coherence of sustained deployment of democracy as an argument for the preservation of global citizenship apartheid even beyond the fact, once again, that the majority of the population of the world will never experience living in a democracy. The naked truth is that upholding the blood aristocracy principle and absolute exclusion of the lower castes of second and third-rate citizenship holders from the spaces of opportunity and human rights is impossible, coherently, in the world of liberal-democratic constitutional fundamentals.

6.

CITIZENSHIP’S CONTINUED PRESTIGE IN THE WORLD OF HUMAN RIGHTS

Contemporary citizenship emerges from this study as a direct opponent of the notion of human rights, posing questions about the implications of this finding for the prestige, workability and the future of citizenship as a concept, in a world where human rights ideology is dominant. Designed to promote ex lege exclusion from rights on the basis of pre-modern blood-based caste assignment, citizenship faces difficulties in the world of human rights, which are concrete and individualisable as opposed to the world of citizenship, which is general and necessarily abstract. Hannah Arendt was too idealistic: the majority of citizenships – the ones reserved for the former colonial subjects – do not grant any rights comparable to the ones distributed by the former coloniser states. This gap has been growing over the past decades. Moreover, connecting citizenship with democracy is a cynical exercise of whitewashing the violence inflicted by this totalitarian tool of segregation on the majority of the world’s population, which does not live in a democracy, as this chapter demonstrates. The analysis articulates two contradictions at the heart of citizenship: its deep opposition to equality – which also boasts racist undertones, since the majority of those who enjoy the best citizenships are white – and its war on human rights. The one right that citizenship distributes is not among universally-recognised human rights. This is the right to enter and inhabit the spaces of opportunity in a deeply unequal world where inequalities are spatialised. This is the true right to have rights and the majority of citizenships do not grant it: especially the former colonials do not get it as part of their citizenship package. Citizenship is thus the core totalitarian tool to normalise, sanctify and harshly enforce the caste-based pre-modern global order, where such racialised colonials are entitled to no rights by virtue of being locked out of the spaces where rights are protected. In other words, citizenship emerges as a promoter of the ideals irreconcilable with the values of any liberal democratic constitution today. If this analysis is correct, citizenship’s future is grim, as is the future of any mass tool of patent injustice, which is not justifiable in the context of the dominant ideologies of the day. Unsurprisingly, citizenship is at a crossroads now: the sub-standard dominant narrative that the global equality of human beings can be assured of within states is in reality eroding.

Abstract citizenship in the age of concrete human rights  565 Different citizenships are not equal, and the allocation of citizenship rights worldwide is neither logical nor clear. At the macro level, citizenship enables the perpetuation and reinforcement of rigid pre-modern caste structures. The son of an American is an American, and the son of a brahman is a brahman. We do not ask ourselves whether this is just. The idea of citizenship is under tremendous pressure, which could in theory endanger the concept’s very survival. Contemporary law and politics are built on the ethical base of equal human worth and the idea of deserving and achievement: The world has officially moved far away from the caste structures of the past, which the citizenship ideal, invoked within the confines of the state, helped dislocate and make suspect by definition. The core idea of fairness informing the contemporary understanding of law and politics is inspired by Enlightenment reason and is centred on the belief that the individual is in charge and the authority is able and willing to back its decisions with recourse to valid reasons and clear arguments. Tragically for citizenship, any appeal to this concept is nothing but shorthand for the denial of all such foundational positions. Worse still, adapting its essence so that contemporary fairness can be incorporated into the story of citizenship is absolutely impossible. Citizenship is precisely about mass caste assignments in a context where individual agency and all the personal characteristics of the bearers are dismissed by definition.115 It is an abstract totalitarian status struggling to survive in a world where all it has ever cherished and promoted is untenable in principle even if it survives in practice, once taken beyond the context of a particular group endowed with the same status. As the realisation of this simple fact grows, the prestige of citizenship is bound to diminish very steeply: in the ongoing battle between citizenship and human rights the latter is more likely to harness sufficient appeal to question significantly the continued prestige of the former.

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Abstract citizenship in the age of concrete human rights  569 Munshi, Sherally. (2016b). ‘Race, Geography, and Mobility,’ Georgetown Immigration Law Journal 30: 245–86. Pais, Abraham. Subtle Is the Lord: The Life and Science of Albert Einstein (Oxford University Press, 1982). Pirker, Benedikt and Kirill Entin. ‘The Free Movement of Persons in the Eurasian Economic Union – between Civis Eurasiaticus and Homo Oeconomicus’ in Nathan Cambien et al. (eds) European Citizenship under Stress: Social Justice, Brexit, and Other Challenges (Brill Nijhoff, 2020). Plender, Richard. International Migration Law (AW Sijthoff, 1972 & 2nd edition, Kluwer, 1988). Prideaux, Sue. I am Dynamite! A Life of Friedrich Nietzsche (Faber & Faber, 2018). Roy, Suryapratim. ‘“Streetlight Effect” in Commentary on Citizenship by Investment’ in Dimitry Kochenov & Kristin Surak (eds) Citizenship and Residence Sales: Residence Sales: Rethinking the Boundaries of Belonging (Cambridge University Press, 2023). Rubinstein, Kim & Daniel Adler. (2000). ‘International Citizenship: The Future of Nationality in a Globalised World,’ Indiana Journal of Global Legal Studies 7: 519–48. Rundle, Kristin. (2009). ‘The Impossibility of an Exterminatory Legality: Law and the Holocaust,’ University of Toronto Law Journal 59: 65–125. Sadiq, Kamal. Paper Citizens: How Illegal Immigrants Acquire Citizenship in Developing Countries (Oxford University Press, 2010). Sadiq, Kamal. ‘Postcolonial Citizenship’ in Ayelet Shachar, Rainer Bauböck, Irene Bloemraad & Maarten Vink (eds) The Oxford Handbook of Citizenship (Oxford University Press, 2017). Schinkel, Willem. (2013). ‘The imagination of “society” in measurements of immigrant integration,’ Ethnic & Racial Studies 36: 1142–61. Schinkel, Willem. (2018). ‘Against “Immigrant Integration”: for an End to Neocolonial Knowledge Production,’ Comparative Migration Studies 6: 31–48. Searle, John R. The Construction of Social Reality (Free Press, 1997). Shachar, Ayelet. The Birthright Lottery (Harvard University Press, 2009). Soysal, Jasemin. Limits of Citizenship: Migrants and Postnational Membership in Europe (University of Chicago Press, 1994). Spiro, Peter J. At Home in Two Countries (NYU Press, 2017). Spiro, Peter J. ‘Stakeholder Theory Won’t Save Citizenship’ in Rainer Bauböck (ed) Democratic Inclusion: Rainer Bauböck in Dialogue (Manchester University Press, 2018). Swider, Katja. ‘A Rights-Based Approach to Statelessness’ (PhD thesis, University of Amsterdam, 2018). Swider, Katja. ‘The Quality of Statelessness’ in Dimitry Kochenov & Justin Lindeboom (eds) Kälin and Kochenov’s Quality of Nationality Index (Hart Publishing, 2020). Thym, Daniel. (2008). ‘Respect for Private and Family Life under Article 8 ECHR in Immigration Cases: A Human Right to Regularize Illegal Stay?,’ International & Comparative Law Quarterly 57: 87–112. Tully, James (ed). On Global Citizenship: James Tully in Dialogue (Bloomsbury, 2014). Visek, Richard C. (1997). ‘Creating the Ethnic Electorate through Legal Restorationism: Citizenship Rights in Estonia,’ Harvard International Law Journal 38: 31–73. Voronina, N.A. (2013). ‘Sojuznoje gosudarstvo Rossija – Belarus’: opyt pravovogo regulirovanija,’ NB: Mezhdunarodnoje pravo 3: 52. Walzer, Michael. (1974). ‘Civility and Civic Virtue in Contemporary America,’ Social Research 41: 593. Weil, Patrick. The Sovereign Citizen (University of Pennsylvania Press, 2012). Weis, Paul. Nationality and Statelessness in International Law (Stevens & Sons, 1956). Whitman, James Q. Hitler’s American Model (Princeton University Press, 2017). Zorn, Jelka. ‘Non-citizens in Slovenia: Erasure from the Register of Permanent Residents’ in Caroline Sawyer & Brad K. Blitz (eds) Statelessness in the European Union: Displaced, Undocumented, Unwanted (Cambridge University Press, 2011).

PART IV FUTURES

31. The Cold War’s continuing power: US constitutional law and historical memory Aziz F. Rana

Any forthright assessment of the American constitutional system cannot avoid confronting the deep dysfunctions that shape existing legal-political institutions. In fact, it has become commonplace for commentators to highlight how ill-suited governing arrangements are for managing conflict or addressing large-scale problems, particularly in polarised times.1 For starters, this is because both the President and Congress can claim representative authority from the people, setting the stage for gridlock and divided government. This system rests heavily on the willingness of political elites to strike deals across the partisan divide, given that there is no built-in capacity to call new elections or to promote power sharing among parties.2 But the greater the polarisation, the greater the likelihood of sustained deadlock – at least until the next election. This problem is exacerbated by the various constraints on democratic authority, from widespread practices of voter disenfranchisement, to gerrymandering in the House of Representatives, to the complete disconnect between Senate power and actual geographic population. Essentially, unless one party enjoys unified control and has supermajorities large enough to overcome institutional roadblocks, it is virtually impossible to implement meaningful reform. In other countries, such deadlock has led to government collapse and even violent military overthrow. More typically, it results in presidents – regardless of ideological affiliation – simply avoiding blocked legislative processes, slowly accumulating extensive lawmaking power, and hoping to impose policy through the bureaucratic and security infrastructure. The latter tendency has come to define American presidentialism, and recent experiences highlight how this can be a recipe for corruption, impunity, and discretionary violence, even if the result is not overt dictatorship.3 But Americans today face problems that go beyond a matter simply of deadlock. Especially following Donald Trump’s election in 2016, numerous commentators have underscored the degree to which the constitutional system entrenches and empowers a particular minority coalition. It systematically skews representation such that a conservative economic and social agenda becomes much easier to implement, even with limited popular appeal. All this ties to the constitutional structure’s dependence on state-based representation, which dramatically overrepresents small, rural, and disproportionately white communities when it comes to national decision-making. These voting blocs – which do not reflect the cultural and racial diversity of the American public – can swing both the Senate and the Presidency in ways

See as simply one illustrative example Wegman (2021). For more generally on how to think about political parties in a constitutional system, see Franita Tolson’s excellent contribution in Chapter 18 of this volume. 3 Over the last decade, political scientist Juan Linz’s work on presidentialism has been revived as the basis for this critique. See especially Linz (1990); Iglesias (2015). 1 2

571

572  Research handbook on the politics of constitutional law that defeat popular policies either directly through legislative intransigence or indirectly at a federal bench packed with like-minded judges.4 Indeed, the issue of court control crystallises many of the concerns with the undemocratic nature of the US Constitution. Critics have found especially troubling that the last two Republican presidents both lost the popular vote but nonetheless gained office through the Electoral College’s state-based system. Operating in tandem with a similarly counter-majoritarian Senate, the party then could fill the federal judiciary with lifetime appointees, including to the Supreme Court. Even after the party’s minority coalition effectively lost power, a small number of ideologically aligned judges would serve for decades, potentially undermining reforms and promoting broadly-rejected political, cultural, and socio-economic views.5 At the same time, the heightened power of the Supreme Court itself, with its limited size, transforms every opening on the Court into a pitched battle over the government’s ideological direction. The stakes rise even higher in light of the extreme obstacles to any mass public effort to formally amend the US Constitution, given the need for two-thirds support in both houses of Congress and then three-fourths of the states to ratify. Such obstacles effectively funnel constitutional politics back into the Supreme Court and federal bench, further emphasising the importance of who controls the judiciary. Yet, until very recently, little of this now widespread conversation would have been present in the American constitutional law field, either in the courses taught or the scholarship produced. Constitutional law as a discipline has instead been consumed with the analysis of judicial, particularly Supreme Court, decision-making. More or less, the entire scope of constitutional law has consisted in how judges resolved legal professional disputes about the textual interpretation of key clauses. Indeed, for this reason, topics generally revolve around those matters that past Supreme Court justices considered worthy of deliberation. The only significant reform conversation that has typically occurred therefore centres on the kind of reform that the Court deemed important to address through its doctrine or that ultimately could be implemented through shifts in judicial interpretation. In effect, during the very years in which the constitutional system appeared to inch toward the breaking point, the main repositories of constitutional knowledge largely ignored the emergent conditions of constitutional reality. Why was this the case and how did it come to be that much of what has constituted constitutional law as a field appears to exist in an alternate universe – one that has mostly bracketed the foundational concerns now facing the country? In this chapter, I argue that we cannot make sense of this disconnect without appreciating the extent to which modern American constitutional law as a discipline is a product of a specific Cold War political sensibility. As legal scholar Ugo Mattei has argued, ‘rather than’ thinking of the conflict ‘as a historical time,’ it is ‘more productive to see the Cold War as a broader regime of knowledge production.’ By this he means that the concrete geostrategic confrontation between the US and the Soviet Union had rippling effects on how generations of legal-political elites understood the world and the role of law within it. Mattei pursues these points with reference to mid-twentieth century developments in the field of comparative law.6 I contend that perhaps the most significant Cold

For a strong distillation of these arguments, see Robin (2021). For variations of these claims, see for example Purdy (2022); Robin (2022). 6 See generally Mattei, (2017) (quotation on 567–568). There, Mattei focuses on how Cold War era comparativists in the US and Western Europe attempted to respond to Marxist ideas of non-comparabil4 5

The cold war’s continuing power: US constitutional law and historical memory  573 War effect on US legal study and practice was its transformative implications for the meaning and status of the Federal Constitution and the Supreme Court in collective life. Against the backdrop of Soviet power and war with Nazi Germany, more and more officials and academics rallied around the American constitutional system as a vital protection against totalitarianism. Moreover, the rise and fall of Joseph McCarthy, and the continuing specter of ‘McCarthyism,’ played a decisive role during these Cold War years in cementing elite suspicion of popular politics. Such suspicion promoted a dramatic embrace not just of the US Federal Constitution generally, but also of its most counter-majoritarian and anti-democratic elements. This resulted in a growing emphasis among political and legal elites on the importance of the Supreme Court, in particular, as an institution that safeguarded liberal constitutionalism. Indeed, it was during this postwar period that the Court itself became increasingly synonymous with the Constitution as such. And not unrelatedly, the legal profession also became ever-more clearly identified as both the Constitution’s central player and the main site of scholarly expertise about broader American constitutional traditions. These developments had profound implications for constitutional politics going forward. To begin with, Cold War circumstances critically altered the dominant public account of the meaning of constitutionalism – what people talked about with they discussed the Constitution. In particular, it permanently shifted the focus away from Progressive and New Deal era questions of institutional design and basic legal-political order – whether to have a Senate or to fundamentally reform the judiciary. Instead, American constitutionalism became a matter almost exclusively of textual interpretation, overseen by lawyers and overwhelmingly concerned with court-based debate and resolution. Under the consolidating view, constitutionalism was best understood as the intergenerational and distinctively American language for working out, through reasoned deliberation, the basic meaning of the document. And in this process, the Supreme Court, the guardian of the constitutional language, gained an exalted status. This status meant that even when legal scholars disagreed with particular judges, they overwhelmingly tended to venerate an overall framework that directed decision-making into the courts. The rest of this chapter pursues these arguments by focusing especially on the links between the consolidation of modern constitutional law as a field and the Cold War embrace of the Supreme Court specifically. Section 1 begins by noting the relative exceptionalism of the US approach to both its Constitution and Supreme Court when placed in global comparative perspective. Among the more distinctive features of American public culture is the devotional relationship to the 1787 text, a relationship that is hardly ubiquitous elsewhere. Thus, exploring the details of the American case study offers a powerful lens for assessing the legal-political consequences of constitutional veneration in general and court-driven constitutional culture specifically. Section 2 then turns properly to the historical reconstruction, detailing the broad obsession with majority tyranny that marked elite political discourse during and after the height of McCarthyism. Section 3 highlights how the Supreme Court – tarred, as late as the New Deal, as an oligarchic threat to democracy – became recast as the institution best equipped to protect against such tyranny. Section 4 then assesses how the rise of legal professional ownership over the constitutional domain transformed what counted as a constitutional question in the first place. Finally, the conclusion engages with how a broader climate of constitutional reverence ity between socialist and bourgeois legal systems. In the process, they developed many of the taxonomic and conceptual hallmarks that are still associated with the field today.

574  Research handbook on the politics of constitutional law lasted well past the actual end of the Cold War, even as the actual terms of the constitutional order proved increasingly brittle. To make matters worse, precisely because the modern development of the constitutional law field was bound up with an anti-populist reading from the mid-twentieth century, its grand theoretical debates and primary orientation had limited value for the main democratic puzzles of the twenty-first century. These puzzles emphasised the dangers of minority rather than majority tyranny and raised basic challenges about the presumptive ownership that the Supreme Court appeared to enjoy over constitutional politics itself.

1.

US CONSTITUTIONAL VENERATION IN COMPARATIVE PERSPECTIVE

If one were to take a step back, the US approach both to the Federal Constitution and to the Supreme Court is striking. For all the problems with the constitutional order, there exists a pervasive and venerative cultural glaze around the system and the federal judiciary. This reverential context is hardly commonplace. Since the 1789 ratification of the US Constitution, 220 countries have appeared on the global stage and, between them, they have produced a remarkable 900 written constitutions.7 The sheer number of such documents suggests a telling fact: For the most part, societies treat their constitutions instrumentally. Commentators sometimes conceive of a constitution as embodying the enduring values of a polity, which suggests a degree of solidity and cultural permanence.8 But, at the same time, constitutional texts also establish a governing structure aimed at resolving collective problems, negotiating internal conflicts, and securing essential rights. When these legal-political orders break down or social upheaval brings new elites and alliances to power, old documents may well be jettisoned and new ones written. Societies rarely treat their written constitutions as at the core of national purpose, or what scholar Rogers Smith calls a political community’s ‘ethically constitutive story’ of ‘peoplehood.’9 What defines French political identity has little to do with the Fifth Republic’s 1958 constitution and far more to do with a shared republican project rooted in earlier revolutionary traditions. For most states in modern history, a constitutional document’s time horizon is hardly unlimited; its text provides one of many options that may work well or fail to serve social ends, depending on the circumstances. Indeed, constitution writing projects over the last decade from Kenya to Chile highlight the willingness of citizens around the world to revisit these documents. In each of those latter cases, popular efforts to address institutional

Ginsburg (2015), 4. Note that such enduring values are often (although not always) written down in a single governing constitutional text. England’s ‘ancient constitution’ is the example of an unwritten constitution – referencing the underlying laws and customs of the society – most widely explored by scholars. See for instance Hulsebosch (2003). 9 Such a story is an account of identity and common purpose that provides individuals a framework for making sense of what it means to be a member of one’s political community. For more generally on ideas of both peoplehood and constitutive stories see especially Smith, (2003). As Ken Kersch remarks, ‘these stories are typically historical and interpretative: they are rooted in interpretations of the group’s (or nation’s) past and offer a shared understanding of the group’s mores, understood in light of where they have been and where they are going.’ Kersch (2016), 241. 7 8

The cold war’s continuing power: US constitutional law and historical memory  575 limitations or to overcome anti-democratic defects focused on replacing old texts and developing new ones. And moreover, in each of these contexts, the public – through assembly and referenda – were treated as the central guardians of constitutional value rather than a uniquely empowered court. And indeed, as recently as the 1930s, a not insignificant swathe of American political elites – as well as underlying constituencies – would similarly have taken a more instrumental approach to their constitutional order. In the early decades of the twentieth century, against the backdrop especially of open class warfare and brutal industrial conditions, political actors of various stripes often viewed the eighteenth-century federal constitution not as a site of mutual attachment but rather as an outdated and even counterproductive legal-political framework. As a consequence, outright calls for an entirely new constitutional order were not unusual, with organised political blocs, especially on the labour left and among the Black poor, defending wholesale constitutional revision. As the patrician Republican Senator Henry Cabot Lodge proclaimed with dismay of the US state of affairs in 1911: ‘[E]very one who is in distress, or in debt, or discontented, now assails the Constitution. Every reformer of other people’s misdeeds – all of that numerous class which is ever seeking to promote virtue at somebody else’s expense – pause in their labours to point out the supposed shortcomings of our national charter.’10 The Supreme Court in particular came in for harsh criticism, with reformers routinely characterising the Court as a monarchical throwback. And, especially in the years leading up to World War I, scholars and activists circulating around Progressive and Socialist parties, from historian Charles Beard and journalist Herbert Croly to the feminist Crystal Eastman and socialist politician Eugene Debs, formulated a class-based critique of the Constitution as an anti-democratic usurpation of the revolutionary ideals of 1776. Strikingly, even in today’s moment of greater concern about constitutional dysfunction, such past critiques are largely absent from collective political memory.11 How did this broader cultural context shift and shift so comprehensively? The exact reason is of course a complicated matter. But past scepticism around both the document and the federal judiciary began to collapse with the New Deal’s victory over Supreme Court intransigence, and especially with US entry into World War II. In justifying American involvement in the war effort, New Dealers focused on the perceived cultural and political differences between the United States and the country’s collectivist or totalitarian foes. In particular, policy makers rallied around the claim that the United States had been defined from the founding by neither race nor religion, but rather by a creedal faith in fundamental rights, the rule of law, and basic equality – Enlightenment principles that, they argued, made the country the first truly universal nation. As concrete proof of these inherent commitments, and thus of the war effort’s moral rectitude, these New Dealers turned to the specific language of the Constitution, rediscovering the document’s Bill of Rights and to a lesser extent the Fourteenth Amendment’s Equal Protection Clause. In the process, such voices very consciously deemphasised their doubts about the

Lodge (1915), 37. For a terrific engagement with the relationship between constitutional politics and historical memory, see Aleksandra Gliszczyńska-Grabias’s Chapter 32 in this volume exploring the Russian and Polish cases. 10 11

576  Research handbook on the politics of constitutional law legitimacy of the Constitution’s governance structures and instead embraced an account of American identity that placed constitutional reverence at the forefront.12 Thus, from a comparative lens, the US case study serves as an instructive example perhaps precisely because of its relative distinctiveness in the global context. It invites future study about the conditions under which constitutional projects – and courts in particular – become closely identified with stories of peoplehood. When are we likely to see such developments and why is this approach generally less common? The US example further underscores not only the strengths, but also the very real weakness of a legal-political order arranged around such a devotional relationship to text and judiciary. One may well explore whether these weaknesses have emerged too in other comparative contexts and what institutional and political remedies have been devised to constrain them. As the remainder of the chapter notes about the US specifically, the consolidation in the 1950s of a particular embrace of the Supreme Court entrenched a rigid account of constitutional reverence. This approach to constitutional meaning today limits genuine democratic reform and has shaped a legal scholarly culture largely disconnected from more critical modes of interrogation. In order to tease out just these dynamics, let us now turn to the particular events of the early Cold War.

2.

MCCARTHY, MAJORITY TYRANNY, AND THE ELEVATION OF COUNTER-MAJORITARIANISM

By the 1950s, elite conversation, as well as the broader public culture, had increasingly come to link the Constitution to an emerging and universalistic national identity. Moreover, occurring during the height of the Cold War, these arguments were embedded in academic and popular commentary revolving around why the United States had avoided the political extremes of fascist or communist tyranny. Indeed, for many officials and scholars this was an especially relevant concern given the spectacular rise and fall of Senator Joseph McCarthy, who became a stand-in for broader fears about potential authoritarian pathways at home. What made him politically popular and why was he ultimately contained? In answering the question of popularity, Cold War elites were especially influenced by the massive multi-author study led by Theodor Adorno on what had led individuals to fall prey to fascist appeals, The Authoritarian Personality (1950). For American policymakers and social scientists, they took from Adorno a causal focus on psychological tendencies, exacerbated by modern mass society, in explaining the popularity of extremist movements.13 This line of analysis was so compelling to officials and scholars in part because it, in effect, amounted to a Cold War updating of old arguments from James Madison in the Federalist No. 51 about the dangers of popular majorities. Madison had contended that the primary threats to liberty often came from those less economically advantaged, who were particularly susceptible to demagoguery. Now, prominent scholars like sociologist Seymour Martin Lipset gave a psychological and social scientific sheen to those eighteenth-century suppositions. He contended that individuals with ‘low status,’ less educational and cultural attainment, were especially vulnerable to authoritarian appeals. As Lipset pointedly concluded: For a fuller discussion of the early twentieth century constitutional culture in the US and the dynamics that reshaped them, see generally Rana (forthcoming 2024). 13 See especially Son (2020), 55–58. 12

The cold war’s continuing power: US constitutional law and historical memory  577 Acceptance of the norms of democracy requires a high level of sophistication and ego security. The less sophisticated and stable an individual, the more likely he is to favor a simplified and demonological view of politics, to fail to understand the rationale underlying the tolerance of those with whom he disagrees, and to find difficulty in grasping or tolerating a gradualist image of political change.14

According to these claims, politicians like McCarthy played on status anxieties prevalent in mass constituencies, galvanising ‘populist’ energy through conspiracy theories, scapegoating, and victimhood. Yet, for all the fears of McCarthyite populism, such commentators also noted that demagoguery had not in fact overwhelmed the legal-political order. McCarthy was censured by the Senate for his Red Scare attacks and faced political isolation in the years before his death. Officials and scholars increasingly looked back on the overall period between World War II and the late 1950s as a time in which a basic postwar economic and political settlement had seemingly suppressed those psychological tendencies toward authoritarianism. As renowned Harvard sociologist Samuel Stouffer concluded after a massive survey of public opinion in his 1955 book, Communism, Conformity, and Civil Liberties, the country faced no real ‘national anxiety neurosis’15 of the kind that made McCarthyism a serious threat to liberal constitutionalism. Increasingly, these voices focused on two related explanations for why the US had evaded an autocratic takeover. The first had to do with how the basic postwar institutional and ideological compact in the United States, along with increasing affluence, enhanced a broadening of educational and cultural attainment in the American public writ large. As Lipset contended, more and more Americans had a psychological grounding in ‘the rich associations which provide a basis for critical evaluation of experience’16; therefore, they were less susceptible to populist demagoguery. Indeed, for many scholars a sign of such cultural maturity was the growing apathy of citizens toward the political process itself. Scholars, like the political scientist Sidney Verba, read ‘American society’ as ‘operat[ing] on a lower level of intensity.’17 As another public opinion study concluded, reduced partisanship and political zeal more generally indicated that in the United States ‘the resolution of many political problems’18 had been achieved. Although less mature decolonising societies in the Global South were still subject to political passions and thus to extremism, for the most part in the United States a moderation in psychological disposition – and thus also in political ideology – dominated life.19 However, it should be noted that this apathy was not only a product of Cold War affluence, but also of the very real Red Scare climate – marked as it was by ideological crackdowns and suppression. Contemporary commentators essentially ignored the immoderate means by which ‘moderation’ was seemingly generated. Instead, they depicted the depoliticisation of collective life as merely a positive effect of a thriving liberalism in American society. Critically, this official and academic agreement on the moderate nature of Cold War America did not mean that citizens should not still be conscious of possible dangers. Indeed, Stouffer maintained that while the United States as a whole was not likely to collapse into 16 17 18 19 14 15

Lipset (1959), 492. Stouffer (1955), 58. Lipset (1959), 492. Quoted in Gilman (2003), 55. Quoted in Son (2020), 59. See Gilman (2003), 55–62.

578  Research handbook on the politics of constitutional law authoritarianism, threats posed by a populist tyranny of majority were worth protecting against. His polling analysis concluded that although most Americans were generally respectful of civil liberties, those least respectful tended to be everyday citizens rather than ‘civic leaders’: ‘[t]he findings to be presented here will show that community leaders of all types – including businessmen – are more likely than the cross-section to accord a Socialist the right to express his views freely.’20 In reaching this determination, Stouffer’s approach again ignored the broader political context and the extent to which one could not so easily separate elite and mass sentiment. During the Red Scare period, citizens faced extensive top-down state repression and mass loyalty campaigns, in which arguing precisely for a socialist’s right to speak carried real personal costs. Unsurprisingly, a not insignificant proportion of respondents, outside of positions of political power, were now repeating elite propaganda and security judgments. Similarly, as the actual strength of past left movements abated under such extreme pressure, it was not wholly unexpected that the very national and local elites who once promoted loyalty campaigns would feel more secure about the ideological status of the Cold War compact. Nevertheless, such survey findings reinforced the basic anti-populist assessments circulating at the time. For Stouffer, this meant that the principal danger to American freedom came from majority tyranny. Thus, the key question of the age was: ‘How can the sober second thought of the people be maintained in a state of readiness to resist external and internal threats to our heritage of liberties?’21 The reference to ‘the sober second thought’ invoked the late nineteenth-century Republican Senator George Frisbee Hoar’s famous defence of why Americans needed a Senate. In Congress, Hoar was the scion of a prominent New England family and a strong defender of the existing constitutional order against labour attacks on its anti-democratic tendencies. At a time of growing frustration with the indirectly elected Senate, he rejected the need for direct election and argued that the body ‘was created that the deliberate will, the sober second thought of the people might find expression. It was intended that it should resist the hasty, intemperate, passionate desire of the people.’22 Crucially, to make such an argument in the Gilded Age, given the intensity of industrial conflict, marked the speaker out in class terms as a defender of the economic status quo. Later, during the social struggles of the 1930s, New Dealers eventually made their peace with institutions like the Senate, as well as the other counter-majoritarian roadblocks, thrown up by the constitutional system. Massive electoral supermajorities, provided by working-class constituencies, overwhelmed the veto points that had long undermined socio-economic reform. And with the capitulation of the Supreme Court, lawyers and politicians associated with FDR saw no need for more far-reaching institutional reforms. But throughout the 1930s and 1940s, there remained real suspicions about whether the framers’ approach to political design was truly worthy of veneration. Now, however, the mood among many Cold War officials and intellectuals, including those that still thought of themselves as avowed New Dealers, had changed dramatically. Commentators developed a second key explanation for how McCarthyite demagoguery had been contained, one that emphasised constitutional design itself. Such voices embraced the fundamental importance of Hoar’s ‘sober second thought’ and with it seemingly much of the aristocratic implications that went with that analysis. The focus on populist tyranny as Stouffer (1955), 26. Ibid, 14. 22 Hoar (1897), 141. 20 21

The cold war’s continuing power: US constitutional law and historical memory  579 the central threat in the United States to civil liberties meant that Madison in particular was extolled as offering timeless insights essential to liberal democracy. By placing fundamental constraints on the capacities of majorities to assert their unchecked democratic will, federalism, the Senate, and other checks and balances all operated hand in glove with the protections of the Bill of Rights. In part, this newfound faith in counter-majoritarianism was tied to the scholarly focus on psychological explanations of authoritarianism. That focus created a related move to explain politics through invocations of human nature. Arthur Schlesinger, Jr., the Pulitzer Prize winning historian, political speechwriter, and future John F. Kennedy advisor, offered perhaps the pithiest distillation of what emerged as the Cold War conventional wisdom about the connections between human nature and practical political outcomes. In his own seminal 1949 defence of Cold War liberalism against the extremes of right and left, The Vital Center, Schlesinger wrote, ‘Consistent pessimism about man, far from promoting authoritarianism, alone can inoculate the democratic faith against it.’23 Given human nature, mass society was subject to irrational and destructive impulses that had to be contained by institutional arrangements that slowed down and depoliticised collective life. Here, Madison’s remark in the Federalist No. 51 about human nature became almost an official mantra during the Cold War: ‘But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.’24 For those like Schlesinger, the quote encapsulated the particular genius of Madison and the framers, who had devised a system of government especially attuned to human frailty and limitation. Indeed, this made the eighteenth-century constitutional structure both uniquely worthy of serving on the global stage as the preeminent institutional model and essential at home for safeguarding against those threats that remained even within a culturally moderate and mature society. As Schlesinger concluded, it was precisely through ‘the more sober language of the Constitution’ that Americans ‘wove individual freedom into our democratic fabric.’25 For many Cold War officials and academics, events since the 1930s fed this embrace of the framers’ design. Where states in Europe had collapsed into fascist or Stalinist tyranny, the United States had not only avoided that trap. The country had also generated a new liberal compact, finding common ground across labour-business divides not to mention even across racial ones. The Constitution was thus presented as a key element in navigating these waters, ensuring gradual but meaningful change while avoiding dangerous extremes. According to this conventional wisdom, the very counter-majoritarian features earlier Progressive and New Deal era activists had decried in truth warded off populist tyranny: these mechanisms reduced the necessity of a society of ‘angels’ because they allowed power to counteract power in ways that actually preserved liberal democracy. Equally important, the system’s persistent roadblocks and endless veto points demobilised potentially threatening majorities, fostering what sociologist Edward Shils called a ‘moderation of political involvement’26 – or the type of productive apathy Cold War scholars now championed. 25 26 23 24

Schlesinger, Jr. (1949), 170. Federalist Papers, no. 51 (Madison). Schlesinger, Jr. (1949), 157–58, 158. Shils (1959), 226.

580  Research handbook on the politics of constitutional law Yet this conventional wisdom fundamentally misread the preceding decades. In many ways, Madisonian design – rather than being built for ‘men’ rather than for ‘angels’ – did not in reality economise on political virtue. It actually required a massive amount of social cohesion (if not actual agreement on political ends) among empowered elites to operate effectively. For many pre-Cold War reformers and labour activists, the entire problem of the long Gilded Age was that collective life was marked by a high degree of social conflict. This meant that elites – for instance, labour and business leaders – fundamentally diverged on how to organise society. Under those circumstances, the proliferation of veto-points across legal-political institutions actually intensified polarisation and instability by making it virtually impossible for the existing system to address basic social problems. The point of course was not that there should be no checks on political power, but rather that unless the system was structured to fulfill popular needs – especially by promoting mass democratic agency – the legal-political order would be marked by continual cycles of crisis and disaffection. Above all, Cold War commentators failed to perceive the extent to which the postwar period in the United States was historically anomalous. The country emerged from World War II as the dominant global player and the convergence in Washington around the necessity of fighting the Cold War fostered a striking amount of cohesion among political elites – ranging from government officials to business, labour, and even African American leaders. The existence of an ideological competitor in the form of the Soviet Union promoted unique external conditions conducive to an internal politics of compromise. Despite the plethora of veto points, all of this helped to facilitate the postwar settlement, to reduce the intensity of party polarisation, and to allow governing elites to manage economic and political decision-making. Yet, Cold War politicians and academics essentially began reading all of American history through contingent developments in the 1940s and 1950s. They thus projected social cohesion and compromise back into the past as the very truth of the country from the founding. And such commentators therefore failed to appreciate the extent to which the postwar settlement emerged in spite of and not because of constitutional counter-majoritarianism. Just as important, the explanation of totalitarianism as a product of unconstrained populist energy – the tyranny of the majority – similarly misread the actual role of mass democratic politics in recent American history. Alongside the Soviet rivalry and American global ascent, the other key factor – as suggested above – that facilitated the postwar domestic settlement was the very strength during the 1930s of an organised working class. This mass base delivered the supermajorities need to implement the New Deal and then continued in the intervening two decades to muster enough electoral strength to maintain the social safety net their efforts had secured. In other words, without an overwhelming political majority able to override the various institutional checks, including from the Supreme Court, the stability of the postwar order would have been far harder to establish. In effect, the Cold War discourse around the Constitution engaged in a double-move that obscured the actual political relationships in the United States between governing elites and political masses, especially working-class communities. First, while in truth governing elites in the national security state were the primary source of security excess and rights abuses during the Red Scare, through readings of Joseph McCarthy such violence was displaced onto those with ‘lower status.’ And then, secondly, the very democratic achievements of popular mobilisation and majoritarianism where instead presented as the inevitable working out of near-perfect and counter-majoritarian American institutions, overseen by moderating elites.

The cold war’s continuing power: US constitutional law and historical memory  581 This double move exposed the extent to which the Cold War embrace of Madisonian design became bound to a remarkably anti-democratic ethos about ordinary people and especially about mass mobilisation. For key 1950s scholars and politicians, efforts to alter the Constitution through mass mobilisation, such as by amendment packages, were in fact embodiments of populist danger and threats to the very sanctity and stability of the constitutional system. As none other than historian Richard Hofstadter wrote in 1955, attempts to revise the text of the Constitution should generally be fought off, because they usually embodied a tyrannical drive within mass politics to overturn liberal constitutionalism itself. Hofstadter appreciated that ‘every dissenting movement brings its demands for Constitutional changes.’ In a sense, calls for change were embedded in the dynamics of American political contestation. Nonetheless, a central way that ‘latent hostility toward American institutions’ expressed itself was through ‘a flood of proposals to write drastic changes into the body of our fundamental law.’27 To Hofstadter, these calls – whether from labor activists in the early 1900s to reduce counter-majoritarian roadblocks or from rightwing voices in the 1950s for constitutional amendments to limit federal taxing power – had the tendency to undermine the very ideal of constitutionalism. Like McCarthy’s Red Scare tactics, they all carried with them a populistic and thus at root an anti-constitutional impulse.

3.

COLD WAR REVERENCE FOR THE SUPREME COURT

This emerging intellectual distrust of mass citizens, among government officials and their scholarly interlocuters, reinforced the overall defence of counter-majoritarianism. In large part, such a defence was connected to who commentators believed were the individuals likely to occupy positions of power within counter-majoritarian institutions – namely cultural and educated elites. As Lipset had implied, these elites were exactly the types of citizens that tended to have the psychological disposition and self-reflective capacities to safeguard liberal constitutionalism. And over time, the specific institution Cold War intellectuals most associated with such critical capacities was none other than the federal judiciary, especially the US Supreme Court. Senators may have claimed to offer the country a ‘sober second thought,’ but that body was now directly elected. It remained counter-majoritarian in the sense that it was over-representative of particular geographic population centres – an issue long raised as a problem by Progressive and New Deal era reformers. But for Cold War voices, merely giving rural Midwesterners extra political power in Congress vis-à-vis urban centres on the coasts did not actually solve the problem of populism. As McCarthy proved, such voters, if left unchecked, were just as susceptible to demagogic appeals as masses anywhere else in the country. Ultimately, the courts best exemplified ethics of deliberation, reason-giving, and critical self-reflection. If Stouffer had wondered who would maintain the people’s ‘sober second thought’ under Cold War conditions, judges were increasingly the stated answer. If anything, the term itself became ever-more associated with them – a fact that legal academics and judges embraced. As early as 1938, Supreme Court Justice and New Deal ally Harlan F. Stone had claimed the term for the bench, famously writing in the Harvard Law Review that the role

Hofstadter (1963), 66.

27

582  Research handbook on the politics of constitutional law of the judge was precisely ‘to represent the sober second thought of the community.’28 In pursuing that underlying thought, Yale Law School professor Alexander Bickel’s 1962 classic of constitutional theory, The Least Dangerous Branch, offered the era’s defining defence of judicial review. Bickel accepted the old Progressive era critique that American-style judicial review – with a small number of unelected judges serving for life and able to wield massive influence on the country’s direction – was undemocratic. He conceded that ‘when the Supreme Court declares unconstitutional a legislative act … it thwarts the will of representatives of the actual people … ; it exercises control, not on behalf of the prevailing majority, but against it. That, without mystic overtones, is what actually happens.’29 But this undemocratic element in collective life was justified because a federal judiciary, armed with the powers of review, was uniquely suited to preserve ‘the enduring values of a society.’ According to Bickel, the problem with elected institutions was that they were susceptible to the frenzy of mass political anxieties, anxieties that could lead publics to engage in destructive infringements on civil liberties or on the basic institutions of capitalist democracy. But rather than being swept up ‘in the moment’s hue and cry,’ courts were uniquely equipped to reduce the political passions. As unelected officials serving for life, they were ‘insulat[ed]’ from the ordinary political process and therefore far less beholden to populist demands. Moreover, the court system was necessarily a slow moving one, in which ‘the marvelous mystery of time’ gave judges the opportunity to let passions cool and ‘to appeal to men’s better natures.’ And to the extent that education was essential for avoiding the psychological tendencies associated with an authoritarian personality, perhaps no institutional figure in collective life had a more comprehensive education – at school and on the job – than the judge in the liberal mindset. As Bickel declared, ‘Judges have … the leisure, training, and the insulation to follow the ways of the scholar in pursuing the ends of government.’ All of this spoke to the special status of the Supreme Court, the apex of the judicial craft, in American life. As an institution, the Court provided a central and liberalising site of public education for the rest of society. It embodied nothing less than the American ‘spirit of moderation,’ with the Justices ‘“inevitably teachers in a vital national seminar.”’30 As recently as 1930s, the federal judiciary and the practice of judicial review had been on the defensive – especially given Supreme Court intransigence in the face of widely backed economic legislation and reforms. But now, arguments like those made by Bickel spoke to a pervasive sensibility across the governing elite – even among some old New Dealers. As the iconoclastic conservative Peter Viereck caustically noted about the political shifts within both the academy as well as the 1950s Northern Democratic Party. The intellectual liberals who twenty years ago wanted to pack the Supreme Court as frustrating the will of the masses (which is exactly what it ought to frustrate) and who were quoting Charles Beard to show that the Constitution is a mere rationalisation of economic loot – those same liberals today are hugging for dear life that same court and that same Constitution … . They are hugging those two most conservative of ‘outdated’ institutions as their last life preservers against the McCarthyite version of what their Henry Wallaces used to call ‘the century of the common man.’31

30 31 28 29

Stone (1936), 25. Bickel (1962), 16–17. Quotations in ibid, 25–26. Viereck (1963), 142.

The cold war’s continuing power: US constitutional law and historical memory  583 During much of the early twentieth century, Bickel’s claims would have been rejected by a significant swathe of scholars and reformers as essentially class-inflected justifications for minority rule, with the socio-economic and cultural interests of a legal elite dressed up as expressions of political virtue. But now, not only did academics and politicians largely take on board these positions, but they also systematically discarded the need for any kind of judicial reform. When placed in global comparative perspective, the American federal judiciary embodied one of the most extreme sites of judicial review. It was incredibly difficult for publics to overturn Supreme Court judgments, given the lack of a legislative veto and the massive impediments to formal constitutional amendment. Moreover, due to both the small size of the Supreme Court (only nine justices) and their lifetime tenure, a tiny coterie of empowered officials enjoyed truly outsized political power – regardless of whether their views actually corresponded to mass democratic sentiment. This extremism had not only fuelled earlier Progressive and New Deal efforts to curtail or even abolish judicial review, it had also fuelled broader reformist desires – to limit how long federal judges (including Supreme Court justices) served, to expand the general number of Supreme Court justices, to introduce clear mechanisms of accountability for judicial misconduct. But now, all those past debates, regarding virtually any kind of judicial reform, were definitively over. Indeed, the very extremism of the Supreme Court’s power became re-packaged as part of the genius of the framers’ vision. Once again, part of the reason for this turn had to do with how commentators increasingly interpreted contingent dynamics of the Cold War period as instead essential truths of American society. For instance, the famed political scientist Robert Dahl responded to worries that the intensity of American-style judicial review transformed a counter-majoritarian institution into an effectively aristocratic one. Dahl argued that while a check on democracy, ultimately the Supreme Court was best seen as fulfilling rather than compromising democratic ideals. In an influential 1957 article, he argued that the policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States. Consequently it would be most unrealistic to suppose that the Court would, for more than a few years at most, stand against any major alternatives sought by a lawmaking majority.32

Dahl’s analysis, as with the broader academic conventional wisdom at the time, assumed that American life had been and likely would always be marked by relative ideological agreement and de-polarisation. This meant that, whatever the differences, the parties largely converged and that presidential nominees to the Supreme Court would tend to have views more or less consistent with those of the public writ large. As a result, there was no need truly to worry, as Gilded Age reformers had, about an economically and politically empowered minority coalition – enjoying limited mass democratic appeal – using the counter-majoritarian institutions of the Electoral College, the Senate, and the Supreme Court to make permanent their ideological positions. Dahl concluded that at worst judges simply held up popular political programs for a contained period of time. In doing so, they gave society more of an opportunity to assess whether such initiatives actually coincided with the country’s enduring constitutional values; they offered that sober second thought. In

32

Dahl (1957), 285.

584  Research handbook on the politics of constitutional law this way, the courts – and particularly the Supreme Court – protected constitutional liberty without compromising the basic democratic responsiveness of the legal-political system.33 A remarkable feature of these arguments regarding the court’s sober second thought was the extent to which they diverged from the actual history of judicial behaviour during periods of government crackdown on dissent. In truth, the Supreme Court – along with the federal courts more generally – had largely deferred to the state’s security judgements rather than served as that presumed voice of enduring constitutional values. During World War I, the Supreme Court upheld the constitutionality of the Espionage Act, including prison convictions for Eugene Debs and others whose only crime consisted in anti-war speech.34 Then, during World War II, the Court similarly justified as constitutional mass Japanese internment.35 And as for the high tide of the Red Scare, the Court again was hardly a champion of dissident rights and largely worked alongside the state in suppressing perceived threats to the Cold War order. In Dennis v. United States (1951), the Court gave constitutional cover to President Truman’s and FBI head J. Edgar Hoover’s mass arrests of the American Communist Party leadership, on grounds that simply organising such a party and promoting it through speeches and publications amounted to an illegal criminal conspiracy.36 The next year, the Court similarly concluded that noncitizens could be deported just for being members of the Communist Party, even if such membership was lawful at the time that the individual joined.37 Ultimately, what was driving this new Cold War era defence of the courts had less to do with the actual record of judges. Instead, it again revolved far more systematically around an assessment of who would likely end up on the Supreme Court or in the federal judiciary. For officials and scholars, McCarthy’s demise generated a sigh of relief because it underscored that at the end of the day the most important institutions of the state – like the presidency – would not fall to populist demagogues. This meant that a politically sober governing elite would largely direct the state and thus nominate and confirm those on the bench. As a result, the courts would overwhelmingly be composed of the same educational, cultural, and socio-economic group as the officials broadly governing the Cold War project at home and abroad. All of this deemphasised the need to focus on the actual outcomes of judicial decision-making. Justices may get certain cases right and others wrong, but overall one could count on their basic judgement to sustain the American model – with its distinctive combination of capitalist democracy and liberal constitutionalism. Moreover, the process of judicial decision-making – its slow unfolding, its emphasis on reason-giving, its references back to past precedent – all indicated that over the long-run even outcomes would be more right than wrong.

33 For a recent critique of how midcentury figures like Bickel or Dahl misread the potential nature of constitutional design, see Karlan (2021). 34 Debs v. United States, 249 US 211 (1919). 35 Korematsu v. United States, 323 US 214 (1944). 36 Dennis v. United States, 341 US 494 (1951). 37 Harisiades v. Shaughnessy, 342 US 580 (1952).

The cold war’s continuing power: US constitutional law and historical memory  585

4.

LEGAL PROFESSIONALS AND WHO OWNS THE CONSTITUTION

Indeed, underscoring this point, during these years some of the most significant Cold War defenders in the legal academy of the Supreme Court and of American-style judicial review criticised much of the actual judicial thinking of the Court under Chief Justice Earl Warren. Most notably, Herbert Wechsler, a leading Northern constitutional scholar of the age, notoriously rejected the legal reasoning behind 1954’s Brown v. Board of Education. The case had a profound long-run significance, especially in the wake of the civil rights movement, in promoting broader cultural veneration of the Constitution – including by Black constituencies. But this did not mean that the white legal establishment at the time of the decision necessarily embraced Brown v. Board as good judicial reasoning, even if it recognised the global eye-sore of segregation. In fact, Bickel spent much of the period arguing – as one 1971 review of his scholarship summarised – that most Warren Court decisions were ‘sloppy in reasoning … and mistaken in result.’ That same review even contended that this was largely the perspective of elite ‘professional commentary on the Court’ during the 1950s and 1960s.38 It was not until the 1970s that Warren Court decisions – chief among them Brown v. Board of Education – became key for constitutional law scholars in their justifications of judicial review. These opinions gained hallowed status as legal reasoning only once Warren Court clerks began entering the American legal academy in significant numbers and larger social changes, wrought by the civil rights era, made hostility to Brown deeply unpalatable politically. Still, in this earlier Cold War period, what Wechsler, Bickel, and others embraced – regardless of their disagreements with specific rulings – was the institution of the Supreme Court, its membership and its process, as the defining embodiment of the American constitutional tradition. This elevation of the Supreme Court, along with the judiciary more generally, went hand in hand with a profound alteration in how governing elites, across both parties, increasingly viewed constitutional politics. Throughout the early twentieth century, when many labour and Progressive reformers engaged in constitutional debate they no doubt had disagreements with specific judicial decisions and presented competing theories of constitutional interpretation. But they focused just as much, if not more so, on issues related to underlying accounts of governmental design. They critiqued structural elements of the existing American legal-political system as in tension with mass democracy. Thus, extensive political energy was spent on institutional changes, from constraining American-style judicial review to altering the Senate and the amendment process. As for rights, Socialist Party figures in particular also argued for a far broader expansion of constitutionally-grounded protections. But crucially, they did not view the central champions of rights – whether free speech guarantees, the right to strike, or socio-economic protections – to be the federal courts. Indeed, the long history suggested to them that the courts far more often safeguarded the interests of those with economic and political power, whether enslavers or later corporate elites. Instead, Socialists focused on legislative majorities and mass mobilisations for constitutional amendments as their privileged mechanisms for instantiating rights commitments.

38

Wright (1971), 770.

586  Research handbook on the politics of constitutional law But now as Cold War orthodoxy dominated intellectual life and public policy, very little of the past approaches remained politically relevant. To begin with, the terms of the domestic Cold War compact meant that the American state’s legal and political institutions were themselves removed from contestation, when not explicitly sanctified as near perfect realisations of liberal democracy. In effect, past debates about economic and political design were rejected out of hand, as evincing what Hofstadter had called that ‘latent hostility’ to constitutionalism itself. In this way, the arena of constitutional conversation increasingly deemphasised questions of basic structure and focused far more on matters of rights – precisely where McCarthyite populism could potentially overrun liberal constitutionalism. And moreover, officials and scholars framed such rights as properly the purview of the judiciary. Precisely because of the dangers posed by mass publics, primary responsibility for preserving and elaborating rights had to be placed in insulated courts. All of this created a clear shift during these years in what elites – and even publics – imagined when they discussed the Constitution. Constitutional debate had little to do with the basic organisation of the state and the economy – elements of collective life that were increasingly treated as permanent, almost natural artifacts of collective life. Instead, constitutional debate revolved around the cases before the federal judiciary, and especially before the Supreme Court, with a particular emphasis on questions of rights. Consequently, what counted as the substance of constitutional analysis similarly narrowed to a focus on judicial opinions themselves: how did judges reference past precedents? To what degree did they display internal rational coherence in their writings or a consistent theory of constitutional interpretation? Reflecting on this convergence of the judiciary with the Constitution, historian Louis Hartz began noting the Supreme Court’s culturally distinctive and ‘unusual power’ in the United States as well as the related and abiding ‘cult of constitution worship.’39 In essence, the pervasive Cold War politics appeared to treat what the Supreme Court debated as the main expression of constitutional politics and, indeed, judicial discourse as embodying the sum total of constitutionalism itself. This increasing focus on the exercise of judicial review as the near-exclusive domain of constitutional conversation mirrored steady transformations occurring in the academy. Law schools traditionally did not present constitutional education as key to their curriculum or larger mission. Harvard Law School Dean Christopher Columbus Langdell’s model for legal education, which spread in the late nineteenth century and became the standard across elite law schools, emphasised private common law matters – subjects like contracts, torts, and property – and employed a case method analysis of appellate judicial decisions to study them.40 Unlike those required courses, constitutional law was overwhelmingly an upper-level elective and sometimes not offered at all. It was only in the late 1920s and 1930s that constitutional law became mandatory at most law schools – and even then remained an elective at places like Harvard. This move was part of a general recognition of the centrality of the modern administrative state to legal practice, and so went along with a growth in public law offerings as a whole, particularly administrative law.41 But even so, given the law school’s primary focus, ‘Legal luminaries during the first half of the twentieth century, Roscoe Pound … , Karl Llewellyn … and others,’ as legal scholar and historian Mark Graber notes, were ‘best Hartz (1955), 9. Neumann, Jr. (2013), 172. 41 Gordon (2013), 350. 39 40

The cold war’s continuing power: US constitutional law and historical memory  587 known for their writings’ on private common law subjects, and ‘the most celebrated work of legal scholarship during the decades before the Second World War, Benjamin Cardozo’s The Nature of the Judicial Process (1921), [was] devoted almost entirely to how justices make decisions in nonconstitutional cases.’42 In fact, as a subject of higher education in the early twentieth century, constitutional law was perhaps most commonly studied in undergraduate courses in history and political science – in keeping with the Progressive era focus on institutional design. For this reason, as late as the 1950s, many of the scholars still most identified with the US Constitution had often taught in humanities and social science departments rather than at law schools, from Edward Corwin and Carl Friedrich to Carl Becker and Charles Beard himself. Yet, now as constitutionalism became almost definitionally associated with the courts, its scholarly identity similarly migrated to the legal academy. In fact, the Cold War period initiated the rise of the constitutional scholar as nothing less than the law school’s preeminent public face. As Graber notes of the contrast before and after World War II, ‘Legal luminaries during the second half of the twentieth century [were] best known for their constitutional analysis’ with ‘virtually all law professors with any name recognition outside of law … scholars of’ the Constitution.43 The shift was clearly aided by the transformation in what counted as constitutionalism. In an earlier period, it would have been hard for figures like Bickel and Wechsler to claim ownership over constitutional study, because they engaged – in keeping with the case method approach – in what Graber calls, ‘grand constitutional theory,’44 focused almost solely on how judges should make decisions about constitutional interpretation. Such a mode of analysis would have been viewed by the likes of Beard as far too narrow, since it ignored the extent to which judicial decision-making took place within a broader legal-political structure as well as economic and social context. For the same reason, teaching the Constitution through a Landgellian case method would have been treated as deeply limited, given that a focus simply on appellate case law effectively removed from examination all the other, equally central sites of historic constitutional struggle – included many matters related to basic institutional design and process. But the Cold War reframing of American politics aided the step-by-step reimagining of the constitutional domain as properly the domain of legal experts. To the extent that constitutional practice was largely confined to court-based dispute, then the people with true knowledge about such dispute were legal professionals. The elevation of the Supreme Court created a growing political presumption within government, the academy broadly, and ultimately the public that constitutional politics was in large measure a conversation overseen by lawyers and judges. All of this implied a basic question about whether such cultural and political dominance of the Constitution by the legal profession was appropriate. During an earlier period, many Progressives and New Dealers had been wary of moving reform primarily into channels of constitutional interpretation. They worried that a dominant focus on this path would empower a small number of political and legal elites to assert status as privileged intermediaries, controlling the acceptable language of constitutional argument and fundamentally shaping the terms under which any change occurred. Such reformers had sought to sustain mass democratic ownership over constitutional politics by focusing on legislative efforts and amendment Graber (2002), 318. Ibid. 44 Ibid, 312. 42 43

588  Research handbook on the politics of constitutional law packages. But for Cold War officials and scholars, depoliticising collective life, including with respect to the Constitution, was precisely the goal. Therefore, greater constitutional control by a legal professional class was similarly to be viewed as a positive outcome.45 Over time, all these developments not only moved knowledge production about the Constitution to law schools, they also enhanced the position and social status of the constitutional law professor, as Graber suggests. This emerging professoriate became the increasingly esteemed translators of the Supreme Court to the public. As part of this process, such law professors certainly continued to disagree, at times strenuously, with particular decisions of the federal judiciary – just as Bickel and Wechsler had. But the elite of the legal academic profession maintained a deeply reverential attachment to the Supreme Court as an institution. This often extended to the actual justices themselves – individuals elite law professors may have worked for, taught in class, or been colleagues with in the academy. By ideological inclination, professional training, and cultural identity, the professoriate thus became a central propagator – almost as a matter of course – of the vision of the Constitution as a judicial-managed enterprise and of constitutionalism as primarily an intergenerational interpretative discourse. Given the substance of what they studied and wrote, this perspective obviously reaffirmed the value of the constitutional law field itself just as it was expanding in law schools. Moreover, the emphasis on judicial control and intergenerational conversation also allowed the overall legal academy to posit itself as key interlocutors in this dialogue. Along with politicians and other lawyers, the law professor – as elucidator of constitutional theory – participated in an intellectual back-and-forth with the bench, facilitating gradualist adaptation when necessary and aiding the judge in adjusting their own analysis.

5.

CONCLUSION: BREAKING THE COLD WAR BIND

Thus, engaging with how Cold War politics altered constitutional memory points to a virtually unremarked upon element of most American scholarship on the Constitution produced since 1960s. Today’s field of constitutional law is, to a large extent, the product of a Cold War convergence of virtually all constitutional debate around the dynamics and discursive practices of the federal judiciary. Moreover, as the Constitution and the Supreme Court became almost one and the same, constitutional study and assessment increasingly became the domain of the legal profession. And the central figures inside this profession came to believe deeply in the document and in a Cold War veneration of the basic American model. This resulted in an emerging scholarly field, increasingly responsible for the broader cultural memory of the Constitution, that itself was effectively enclosed within Cold War judgements regarding the country and its past. Scholars certainly acknowledged that political life faced extensive dissensus, including over matters of constitutional interpretation – such as which rights the Court should protect and what meaning it should give to particular textual language. But the assumption became that any dissensus took place against the backdrop of shared and near-unanimous fidelity to the constitutional system as a whole. This suggests that when legal scholars today celebrate a version of constitutionalism – especially court-centred reason-giving and intergenerational interpretative traditions – as critical to liberal political 45 These argument dovetail with those made powerfully by Julie Novkov in Chapter 3 of this volume on the ‘politics of legal ideology’ in the US.

The cold war’s continuing power: US constitutional law and historical memory  589 ethics and practice, they also inadvertently celebrate a set of related Cold War developments. What legal scholars traditionally mean when they talk about Constitution entails ideas that became entrenched during that particular era. Precisely because such ideas rested on a deep suspicion of mass popular capacities, it is not a surprise that constitutional law has been late to engaging with the actual constitutional struggles of our times. In effect, the field was built around pervasive assumptions about majority tyranny and court-centric analysis that have had the long-run effect of obscuring from view the types of dysfunctions that today shape legal-political life. Moreover, the anti-populist analysis of McCarthy is fundamentally ill-suited for understanding the particular dangers posed by politicians like Trump to democratic practice. Cold War thinking posited the US constitutional system as safeguard against rising authoritarianism. But Trump’s rise and his later attempt to subvert the 2020 presidential election were in many ways facilitated by the constitutional order. Indeed, the modern Republican Party is deeply structured by the incentives of the constitutional system. Given the anti-democratic features of this system, the party has a disproportionate capacity to project power without a popular majority. As Progressive and New Deal reformers once worried, this reality has created a drive among some party leaders to view their power as dependent on disenfranchisement and minority rule. In fact, throughout American history rights subversion has often operated through powerful and entrenched minorities moving between the tactical use of counter-majoritarian devices and open suppression of democracy. Indeed, as none other than W.E.B. Du Bois often contended, from Southern secession to white resistance to Reconstruction and then later to desegregation, this has been precisely the defining and authoritarian approach taken by white elites contesting multiracial inclusion. In this way, mob actions and racist violence were both lawless as well as facilitated – not by majoritarianism – but by the anti-democratic features of the constitutional order. All of this underscores the need for new modes of constitutional inquiry in the US, no longer the product of a long collapsed mid-century compact and so capable of critically assessing existing institutional and ideological terms. What are the alternative visions of constitutional possibility, beyond those framed by Cold War veneration, relevant for contemporary life? If the American version of constitutional veneration is in reality relatively uncommon on the global stage, what lessons can be drawn for other societies with respect to the benefits but also the pitfalls of too aggressive an embrace of fundamental law and court-driven constitutional politics? At the same time, what can US scholars and activists learn from the very different modes of constitutional politics – not to mention accounts of institutional design – operative elsewhere? One key effect of Cold War veneration has been to transform the US legal-political system in the domestic political imagination into effectively the quintessential and exclusive constitutional model, despite its profound flaws. A far less parochial approach would engage with the complex history of experiments around the world and ask: What would it mean to have a political culture in which constitutional ownership resided with broader publics rather than with a small coterie of judges and lawyers? Despite the fact that the study of the Constitution is supposed to be about foundational matters of legal-political life, in truth fundamental questions about the basic organisation of American state and economy have played only a minor role in the mainstream of the US legal field. It is long past due for these questions – ones often asked elsewhere – to gain centrestage in scholarship and debate.

590  Research handbook on the politics of constitutional law

REFERENCES Bell, Daniel (ed). The Radical Right (Doubleday, 1963). Bickel, Alexander. The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale University Press, 1962). Dahl, Robert. (1957). ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,’ Journal of Public Law 6: 279–95. Gilman, Nils. Mandarins of the Future: Modernization Theory in Cold War America (Johns Hopkins University Press, 2003). Ginsburg, Tom. (2015). ‘Written Constitutions Around the World,’ Insights on Law and Society 15: 4–7. Gordon, Robert. ‘The Geologic Strata of the Law School Curriculum,’ (2013). Vanderbilt Law School 60: 340–69. Graber, Mark. ‘Constitutional Politics and Constitutional Theory: A Misunderstood and Neglected Relationship,’ (2002). Law & Social Inquiry 27: 309–38. Hartz, Louis. The Liberal Tradition in America: An Interpretation of American Political Thought since the Revolution (Harcourt Brace Jovanovich Publishers, 1955). Hoar, George Frisbee. (1897). ‘Has the Senate Degenerated?,’ Forum 23: 140–42. Hofstadter, Richard. ‘The Pseudo-Conservative Revolt – 1955’ in Daniel Bell (ed). The Radical Right (Doubleday, 1963) 63–80. Hulsebosch, Daniel. (2003). ‘The Ancient Constitution and the Expanding Empire: Sir Edward Coke’s British Jurisprudence,’ Law and History Review 21: 439–82. Karlan, Pamela. (2021). ‘The New Countermajoritarian Difficulty,’ California Law Review 109: 2323–55. Kersch, Ken. ‘Constitutive Stories about the Common Law in Modern American Conservatism,’ in Sanford Levinson (ed). NOMOS: American Conservatism. (New York University Press, 2016) 211–55. Linz, Juan. (1990). ‘The Perils of Presidentialism,’ Journal of Democracy 1: 51–69. Lipset, Seymour Martin. (1959). ‘Democracy and Working-Class Authoritarianism,’ American Sociological Review 24: 482–501. Lodge, Henry Cabot. ‘The Constitution and Its Makers,’ in The Democracy of the Constitution: And Other Addresses and Essays (Charles Scribner’s Sons, 1915). Mattei, Ugo. (2017). ‘The Cold War and Comparative Law: A Reflection on the Politics of Intellectual Discipline,’ American Journal of Comparative Law 65: 567–607. Neumann, Jr., Richard K. (2013). ‘Osler, Langdell, and the Atelier: Three Tales of Creation in Professional Education,’ Legal Communication & Rhetoric 10: 151–85. Purdy, Jedediah. ‘The Republican Party is Succeeding Because We Are Not a True Democracy, New York Times (3 January 2022), https://​www​.nytimes​.com/​2022/​01/​03/​opinion/​us​-democracy​ -constitution​.html. Rana, Aziz. The Constitutional Bind: How Americans Came to Idolize a Document that Fails Them (The University of Chicago Press, forthcoming 2024). Robin, Corey. ‘Republicans Are Moving Rapidly to Cement Minority Rule. Blame the Constitution,’ Politico Magazine (5 January 2022), https://​www​.politico​.com/​news/​magazine/​2022/​01/​05/​ democracy​-january​-6​-coup​-constitution​-526512. Robin, Corey. ‘Trump and the Trapped Country,’ The New Yorker (13 March 2021), https://​www​ .newyorker​.com/​news/​our​-columnists/​trump​-and​-the​-trapped​-country. Schlesinger, Jr., Arthur. The Vital Center: The Politics of Freedom (Da Capo Press, 1949). Shils, Edward. The Torment of Secrecy (The Free Press, 1956). Smith, Rogers. Stories of Peoplehood: The Politics and Moral of Political Membership (Cambridge University Press, 2003). Son, Kyong-Min. The Eclipse of the Demos: The Cold War and the Crisis of Democracy before Neoliberalism (The University Press of Kansas, 2020). Stone, Harlan F. (1936). ‘The Common Law in the United States,’ Harvard Law Review 50: 4–26. Stouffer, Samuel. Communism, Conformity, and Civil Liberties: A Cross-Section of the Nation Speaks its Mind (Doubleday & Co., 1955).

The cold war’s continuing power: US constitutional law and historical memory  591 Viereck, Peter, ‘The Revolt Against the Elites – 1955’ in Daniel Bell (ed) The Radical Right (Doubleday, 1963) 135–54. Wegman, Jesse. ‘Will We Ever Amend the Constitution Again?,’ The New York Times (4 August 2021). Wright, J. Skelly. (1971). ‘Professor Bickel, The Scholarly Tradition, and the Supreme Court,’ Harvard Law Review 84: 769–805. Yglesias, Matthew. ‘American democracy is doomed,’ Vox (8 October 2015), https://​www​.vox​.com/​ 2015/​3/​2/​8120063/​american​-democracy​-doomed.

32. The politics of constitutional memory: mnemonic constitutionalism, historical memory, and collective identity in Poland, Germany and Russia Aleksandra Gliszczyńska-Grabias1

1.

CONSTITUTIONAL IMAGINARY OF THE PAST

Legal governance of history is not a new phenomenon. Those in power have always been tempted to shape and design social perceptions not only of themselves as ruling elites, but also of the national identity, composed of collectively accepted memories rather than historical facts. In recent years, this phenomenon has gone beyond legal measures against genocide denialism, a prime and almost universally accepted of so-called memory laws (the term to be explained in more detail later in this chapter). It also, sometimes violently, enters into the sphere of constitutionalism2 – as it happened with the case of the amended Hungarian Constitution, changed with the populist spirit of Viktor Orbán and his allies,3 the Belarusian Constitution recently amended in a sham national referendum,4 and regulations elsewhere, such as the Polish 2018 Amendment to the Law on the Institute of National Remembrance (INRA), which introduced into the Polish legal system criminal sanctions for false attribution to the Poles or Poland of crimes committed by German Nazis during World War II.5 These examples demonstrate what can be called an act of political and social engineering, with a clear aim of imposing one unified and official story about the past – most often, a glorious, heroic past untainted by crimes and injustice committed against others. 1 The author is grateful to the Volkswagen Foundation for supporting this study within their research grant allocated for the consortium project ‘MEMOCRACY’ (2021–2024). 2 The heading of constitutionalism replicates the idea that government can and should be limited in its powers, and that its authority or legitimacy depends on its observing these limitations. See Wil Waluchow, ‘Constitutionalism’ in Edward N. Zalta (ed) The Stanford Encyclopedia of Philosophy (Spring 2018 Edition), https://​plato​.stanford​.edu/​archives/​spr2018/​entries/​constitutionalism/​. 3 Miklós Bánkuti, Gábor Halmai & Kim Lane Scheppele, ‘Hungary’s Illiberal Turn: Dismantling the Constitution,’ Journal of Democracy 21(3) (2012): 138–45. 4 See the highly critical opinion of the Venice Commission on the at that time draft amendments and additions to the constitution of Belarus, including the amended Article 15 (‘The state ensures the preservation of historical truth and memory of the heroic feat of the Belarusian people during the Great Patriotic War’). Opinion No. 1054 / 2021 of 14 February 2021. I would like to thank Ulad Belavusau for drawing my attention to these aspects of the new constitutional order in Belarus. 5 As a result of strong international protests against this attempt to muzzle academic freedom and freedom of speech in relation to the Holocaust past and research, the amended was replaced by another amendment again in June 2018, and left only with civil law sanctions applicable. For a detailed analysis see Aleksandra Gliszczyńska-Grabias, ‘Deployments of Memory with the Tools of Law – the Case of Poland,’ Review of Central and East European Law 44(4) (2019): 464–92.

592

The politics of constitutional memory  593 These tendencies, observed recently in particular in Central and Eastern Europe (CEE) – even though also going far beyond this region – translate into a separate and complex phenomenon of ‘mnemonic constitutionalism’. As argued by Uladzislau Belavusau, who coined the term: Mnemonic constitutionalism (…) places authority and legitimacy of a state into the boundaries of a certain historical paradigm, whereas current and future attitudes and behaviours of state actors derive from and are limited by moral lessons of the past. Within mnemonic constitutionalism, historical past becomes the foundation of collective identity prescribed by either the Basic Law itself, or by legal provisions which traditionally shape the substructure of national constitutional law, like for example, citizenship laws or statues shaping collective identities by virtue of imposing specific understandings of historical past.6

Constitutions and other forms of basic laws, placed in the heart of national legal orders, can thus play an important role in the process of governing the past. At the same time, the abuse of their special character and position in the hierarchy of laws may cause severe consequences. This is also relevant for the way constitutional provisions are interpreted by constitutional courts and tribunals, if driven by the same desire to enter and manipulate the sphere of history and the past. The emotional aspect, which András Sajó writes fascinatingly about in the context of the process of constitutional design elsewhere in this volume, also plays a significant role: common emotions experienced individually and collectively towards the history of a given state and nation: pride, attachment, sense of injustice, grief associated with the loss or shame – they all may affect mnemonic dimension of the constitutional law and order.7 The controversies surrounding mnemonic constitutionalism do not necessarily apply to all kinds of historical themes attached to the basic laws or other national law’s provisions. Commonly observed in the preambles to the basic laws all over the world, historical invocations referring to the national collective memory, are on most occasions not burdened with risks and threats to individual rights and freedoms (but also, more broadly, to cause an enforced perception of one’s nation’s history) which accompany laws such as the Polish INRA. This is demonstrated, among many other examples, by the Preamble to the Constitution of the Republic of Korea that refers to historical events by declaring: ‘We, the people of Korea, proud of a resplendent history and traditions dating from time immemorial, upholding the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919 and the democratic ideals of the April Nineteenth Uprising of 1960 against injustice …’.8 Profound historical references are also traced in the constitutions of states and nations burdened by the colonial past, both on the side of the colonisers and the oppressed ones, as is the case with the French constitution in relation to its colonial aftermath.9 The

6 Uladzislau Belavusau, ‘Mnemonic Constitutionalism and Rule of Law in Hungary and Russia,’ Interdisciplinary Journal of Populism 1(1) (2020): 18. 7 András Sajó, ‘Emotions in constitutional law’ in Chapter 5 of this volume. 8 Constitution of the Republic of Korea of July 12, 1948 (as Amended to October 29, 1987), https://​oxcon​.ouplaw​.com/​view/​10​.1093/​law:​ocw/​law​-ocw​-cd1097​.regGroup​.1/​law​-ocw​-cd1097​?rskey​ =​h5FbGr​&​result​=​1​&​q​=​korea​&​prd​=​OCW. On fascinating account of coming to terms with the Past in South Korea see Nan Kim, Memory, Reconciliation, and Reunions in South Korea Crossing the Divide (Lexington Books, 2016). 9 The Preamble of the Constitution of the French Republic of September 28, 1958 (as Amended to July 23, 2008) reads: ‘The French people solemnly proclaim their attachment to the Rights of Man and

594  Research handbook on the politics of constitutional law same applies to some cases of historical preconditions for granting citizenship rights, with the 2015 decision of the Parliament of Portugal to grant citizenship to descendants of persecuted Sephardic Jews whose ancestors were expelled in the fifteenth century, as a prime positive example.10 The same applies to numerous examples of parliamentary declarations, including those adopted by the European Parliament, where the search for common consent over painful European past and the will to fulfil the duty to remember,11 serves as a driving force behind their adoption, yet causing no rights or obligations for individuals – or states. The present chapter concentrates on the examples of mnemonic constitutionalism that bears a very particular burden, both of symbolic and real-life consequences, and translates into binding laws and implemented policies. The rest of this chapter is organised as follows: Section 2 offers an explanation of the general concept of memory laws. The subsequent Sections provide three case studies namely, Germany, Poland and Russia, chosen because they manifest different approaches to mnemonic constitutionalism, including one that treats it as an ideological basis for an entire governance of historical memory with the aim of securing democratic order (Germany), one that abuses it as an ontological foundation to introduce ‘illiberal democracy’ (Poland), and one that turned its mnemonic constitutionalism into justification of violent military aggression (Russia). Section 6 concludes.

the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946, and to the rights and duties as defined in the Charter for the Environment of 2004. By virtue of these principles and that of the self-determination of peoples, the Republic offers to the overseas territories which have expressed the will to adhere to them new institutions founded on the common ideal of liberty, equality and fraternity and conceived for the purpose of their democratic development.’ https://​www​.conseil​-constitutionnel​.fr/​sites/​default/​files/​as/​root/​bank​_mm/​anglais/​constiution​ _anglais​_oct2009​.pdf. The Preamble of the Algerian Constitution of 1963, in turn, can be read as a kind of a that time response to the declarations embodied in its French equivalent and is also worth being quoted in length: ‘The Algerian people have waged an unceasing armed, moral and political struggle against the invader and all his forms of oppression for more than a century following the aggression of 1830 against the Algerian State and the occupation of the country by French colonial forces. On November 1,1954, the National Liberation Front called for the mobilisation of all the energies of the nation, since the battle for the independence had reached its final phase of realisation. The war of extermination waged by French imperialism was intensified and more than a million martyrs paid with their lives for the love of their country and liberty. In March 1962, the Algerian people emerged victorious from the seven and half year’s struggle waged by the National Liberation Front. Upon recovering its sovereignty, after a hundred and thirty two years of colonial domination and feudal regime, Algeria has given itself new national political institutions. (…).’ https://​www​.marxists​.org/​history/​algeria/​1963/​09/​ constitution​.htm. 10 See Arielle Goldschläger & Camilla Orjuela, ‘Return after 500 years? Spanish and Portuguese repatriation laws and the reconstruction of Sephardic identity,’ Diaspora Studies 14(1) (2021): 97–115. On some aspects of historical implications in the European citizenship project of the EU, see Dimitry Kochenov, ‘EU Citizenship without Duties,’ European Law Journal 20 (2014): 482498. 11 See e.g. European Parliament resolution of 19 September 2019 on the importance of European remembrance for the future of Europe, P9_TA(2019)0021. On the notion of ‘duty to remember’ see also Ziya Meral, ‘A Duty to Remember? Politics and Morality of Remembering Past Atrocities,’ International Political Anthropology 5(1) (2012): 29–50.

The politics of constitutional memory  595

2.

MEMORY OF THE PAST AS A LEGAL DETERMINANT

The unprecedented blossoming of both memory laws themselves and growing volumes of academic literature addressing this topic resulted in the emergence of a new field of research within legal studies, with a strong comparative component, even though, as already noted, the phenomenon itself can be traced long back in history.12 Memory laws have also caused or rather have been used as weapons in political memory wars,13 which, as we observed in the case of Russia, turned into real military aggression. Along with the rising attention directed at memory laws, a need for a definition appeared and was addressed in various ways. Even though some authors insist on limiting the scope of laws covered under this label strictly to the ones which are equipped with punitive sanctions,14 I propose a wider reading of this category. I define memory laws as legal measures governing history, including (but not restricted to) punitive measures against the denial of historical atrocities, and bans prohibiting the use of totalitarian symbols of the past or making illegal the functioning of organisations (including political parties) that refer in their programs to totalitarian regimes. Such a broad notion of memory laws also encompasses legal acts recognising and commemorating historical events and figures, including laws establishing state holidays, celebrations and dates of mourning, street (re-)naming and monument installations in honour of historical figures, statutes and access to historical archives, as well as regulations regarding museums and school curricula on history.15 Many such instances, for example museum exhibitions, school curricula, or statutes, are relatively uncontroversial and as such they will not necessarily strike us as belonging to ‘mnemonic constitutionalism’ in an interesting sense of the word because they do not even register in our minds as raising the issues of difficult choices about elevating collective memories to the level of state practices and laws. While what is controversial or not is in the eyes of beholder, this chapter focuses largely on the matters perceived by the author as relatively controversial. Nowadays, the visible line of division between memory laws lies in their classification as self-inculpatory memory laws and self-exculpatory ones.16 The self-inculpatory character of legal measures in this context can be shown by the dignity-based paradigm that guides legislators who enact them and their role in reconciliation or transitional justice processes. The latter group of memory laws, which recently came as a wave of mnemonic constitutionalism in CEE, fortifies the victimhood status of national states. For the review of the growing literature on memory laws, see Uladzislau Belavusau & Aleksandra Gliszczyńska-Grabias, ‘The Remarkable Rise of ‘Law and Historical Memory’ in Europe: Theorizing Trends and Prospects in Recent Literature,’ Journal of Law and Society 47(2) (2020): 325–38. 13 On memory wars waged via memory laws, see in particular Nikolay Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia (Cambridge University Press, 2017); Maria Mälksoo, ‘Memory Must Be Defended’: Beyond the Politics of Mnemonical Security,’ Security Dialogue 46(3) (2015): 221–37; Ilya Nuzov, ‘Freedom of Symbolic Speech in the Context of Memory Wars in Easter Europe,’ Human Rights Law Review 19(2) (2019): 231–53. 14 Koposov refers to ‘memory laws per se’ as ‘laws criminalizing certain statements about the past’. See Koposov (n 13 above) 6. 15 The pioneer research on legal dimensions of memory laws analysed in this perspective has been introduced and promoted by Belavusau and Gliszczyńska-Grabias, in, including numerous other publications: Uladzislau Belavusau & Aleksandra Gliszczyńska-Grabias (eds) Law and Memory: Towards legal Governance of History (Cambridge University Press, 2017). 16 Eric Heinze, ‘Theorizing Law and Historical Memory,’ Journal of Comparative Law 12 (2018). 12

596  Research handbook on the politics of constitutional law The memory laws of the 1990s, enacted in France, Germany and elsewhere in Western Europe, in particular with regard to outlawing Holocaust denial, were closely linked to the concept of militant democracy, that is, a set of state laws and policies meant to restrict the freedom of speech and association exercised by former politicians and ideologues of non-democratic regimes, and their contemporary followers and advocates. The concept of militant democracy holds that liberal democracies should possess effective measures of defending themselves from their enemies. This approach has been adopted (at least formally, by implementing criminalisation of various forms of genocide denial) by CEE ‘newcomers’ to the European system of human rights protection and new. Importantly, it has also been endorsed by the European Court of Human Rights (ECtHR). The Court applies standards of assessment of such measures undertaken at national level as a function of its perception of how necessary they are to address a danger that a state legitimately may (indeed, must) prevent, in this case, a risk of revival of discredited, dangerous regimes. This is, after all, what ‘militant democracy’ is about: self-protection by a newly attained democracy. And this is also an important (perhaps central) justification for self-inculpatory memory laws. The totalitarian past, the argument goes, should be remembered in a particular way (and not remembered in another way, namely with a warm nostalgia) in order to prevent its return. This ECtHR’s approach is based on a firm conviction of the ever existing need to protect the dignity of Holocaust victims and to equate the denial of this crime with the manifestation of anti-Semitism.17 It has also led to the phenomenon of treating Holocaust a ‘last taboo’ of the Strasbourg case law, in the sense of allowing much broader and far-reaching restrictions to free speech whenever the dignity of Holocaust victims or the memory of the crime itself is being invoked.18 One of the most telling examples of this approach by the ECtHR include the dictum of the ECtHR in Garaudy v. France19 that neatly captures the essence of the European conviction of the need to protect the dignity of Holocaust victims and equates the denial of this crime with the manifestation of anti-Semitism: There can be no doubt that denying the reality of clearly established historical facts, such as the Holocaust, as the applicant does in his book, does not constitute historical research akin to a quest for the truth. The aim and the result of that approach are completely different, the real purpose being to rehabilitate the National-Socialist regime and, as a consequence, accuse the victims themselves of falsifying history. Denying crimes against humanity is therefore one of the most serious forms of racial defamation of Jews and of incitement to hatred of them. The denial or rewriting of this type of historical fact undermines the values on which the fight against racism and anti-Semitism are based and constitutes a serious threat to public order. Such acts are incompatible with democracy and human rights because they infringe the rights of others.20

17 See in particular Ysrael Gutman, Denying the Holocaust (Hebrew University of Jerusalem, 1985); Ludovic Hennebel and Thomas Hochmann (eds) Genocide Denials and the Law (Oxford University Press, 2011); Emanuela Fronza, Memory and Punishment. Historical Denialism, Free Speech and the Limits of Criminal Law (T.M.C. Asser Press, 2018). 18 Aleksandra Gliszczyńska-Grabias, ‘“Never Again” as a Cornerstone of the Strasbourg System: The Reminiscence of the Holocaust in the Jurisprudence of the European Court of Human Rights’ in Helmut Ast & Esra Demir (eds) The European Court of Human Rights: Current Challenges in Historical and Comparative Perspective (Edward Elgar, 2020) 200–220. 19 Garaudy v. France, app. no. 65831/01, (ECtHR, 24 June 2003). 20 Ibid, para 23.

The politics of constitutional memory  597 This exclusion of Holocaust denial from the sphere of protected expressions under the guarantee of freedom of speech is not only characteristic of the Strasbourg jurisprudence: the majority of the Council of Europe states have anti-negationist laws,21 and in 2008 the EU implemented the Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law,22 which includes provisions concerning the obligation of penalisation of negationism. In the CEE states, legal developments that fall under the category of memory laws manifest different ways of shaping historical narratives.23 The rise of memory laws in some CEE states has also signaled a more general shift towards a nationalistic, rights- and freedoms-restrictive, anti-minorities and anti-European discourse, marked by the fortification of populist forces, and memory-driven interference with academic freedoms and freedom of historical research in particular. This trend is accompanied by some forms of memory politics and government-sponsored narratives, largely driven by an urge to whitewash the most shameful episodes of national history, and to populate general social perception with unimpeachable national heroes fighting for freedom against cruel regimes imposed by foreign oppressors. This may also be understood as taking a legal (and political) stand in debates over history by demanding and legally enforcing full recognition of an orthodox national understanding of the past that most often is at odds with the way other states and nations remember the past. The one-sided and often martyrological visions of the past are also dangerously strengthened by legal actors (legislators, prosecutors, national remembrance institutions, and the like) who certify these simplistic narratives as rightful, legitimate, and obligatory for social imagination. Here, the phenomenon of victimhood competition24 also plays a significant role, with ‘us’ being the main, most important and most harmed victims of the atrocities committed by others. Thus, there are usually only isolated voices courageous enough to openly and publicly go against such self-flattering images of historical events. One is Polish writer Olga Tokarczuk, Nobel Prize winner in literature. Just a few words uttered by her about the Poles’ shared responsibility for the fate of Jews and crimes committed against Ukrainians were enough to trigger a fierce campaign of hatred against her, including death threats.25 What Tokarczuk said was: We contrived a narrative of Polish history depicting Poland as a tolerant, open country, one which has never disgraced itself with any wrongdoing towards its minority groups … Meanwhile, as colonisers

A useful database of such rules was created within the international research project Memory Laws in European and Comparative Perspective (MELA) and is available at http://​melaproject​.org/​legal​ -database. 22 Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law (2008) OJ L 328, 55–58. 23 The example of Turkish ‘dealing with the past’ is to be brought here, even though in a different historical context. See Grażyna Baranowska, ‘Memory laws in Turkey: protecting the memory of Mustafa Kemal Atatürk’ in Klaus Bachmann & Christian Garuka (eds) Criminalizing History Legal Restrictions on Statements and Interpretations of the Past in Germany, Poland, Rwanda, Turkey and Ukraine (Peter Lang, 2020). 24 On this phenomenon, in the context of the Holocaust, see Robert Rozett, ‘Competitive Victimhood and Holocaust Distortion,’ Israel Journal of Foreign Affairs (2022), https://​www​.tandfonline​.com/​doi/​ pdf/​10​.1080/​23739770​.2022​.2059740​?needAccess​=​true. 25 Dorota Kołodziejczyk, ‘The Landscape of Hate – Olga Tokarczuk in Populist Discourse in Poland,’ European Review (2022): 1–11. 21

598  Research handbook on the politics of constitutional law and an ethnic majority, we did appalling things, suppressing minorities; we were slaveholders and murderers of Jews.26

Within the nationalistic framework of memory, these words cannot be treated other than as a form of national betrayal and a public attack on the nation’s and state’s good name and reputation, criminalised in national law.27

3.

FIGHTING POLISH ‘CRITICAL PATRIOTISM’ WITH THE TOOLS OF LAW

Essentially, Polish governance of the past has become, in recent years, a populist tool of fulfilling a pledge of ‘getting Poland off its knees’, meaning (re)gaining national pride in the heroic Polish past and forcing others to recognise that past.28 This promise has been so far kept exactly in a manner that nourishes a historical narrative portraying Poles as main victims of totalitarian regimes and sole helpers of others, and very often ignores – or silences even – complex, far from ‘black or white’ historical truths. Even though this narrative has not yet been embedded in the textual constitution, it has moved into so many legal spheres that Poland can be undoubtedly counted as one of the most telling examples of mnemonic constitutionalism in CEE. Essentially, there exist two main battlefields of memory of the past in Poland into which the current ruling forces step in vigorously. The first is the Stalinist and Communist past, the second the memory of the Holocaust in the context of crimes committed against the Jews by the Poles during and after World War II. Parliamentary arithmetic does not allow the ruling majority in Poland to change the Constitution: A bill to amend the Constitution must be adopted by the Sejm (lower chamber of the Parliament) by a majority of at least two-thirds of votes in the presence of at least half of the statutory number of Deputies, and by the Senate (upper chamber) by an absolute majority of votes in the presence of at least half of the statutory number of Senators. Mnemonic constitutionalism is manifested in the use of statutory laws and other legal attempts to push through the heroic, self-congratulatory and self-exculpatory reading of the past in the courtrooms, with the passive acquiescence of the Trybunał Konstytucyjny (TK). To some extent the sentiment expressed by the policy of memory in regard to Stalinist and Communist past can be understood and found legitimate, as the tragic heritage of these regimes has never became a part of shared, European memory. The Holocaust, being at the Quoted after: Jędrzej Słodkowski, ‘Mordowaliśmy Żydów, kolonizowaliśmy Ukrainę. I co was takw tym boli?,’ Gazeta Wyborcza, 19 October 2015, http://​wyborcza​.pl/​1​,75410​,19043800​ ,mordowalismy​-zydow​-kolonizowalismy​-ukraine​-i​-co​-was​-tak​-w​.html. 27 Such law, anti-nation or anti-state defamation, should be also perceived as belonging to the category of mnemonic constitutionalism. On the most well-known example of such laws, the infamous article 301 of the Turkish criminal code see Bülent Algan, ‘The Brand New Version of Article 301 of Turkish Penal Code and the Future of Freedom of Expression Cases in Turkey,’ German Law Journal 9(12) (2008): 2237–52. 28 In the context of INRA’s implementation, the at that time vice minister of Justice, Patryk Jaki, (ex) claimed: ‘(…)We do not agree that Poland should be insulted any longer (…) Too often Poland was> a beating boy. (…) It's high time to say: enough.’ Barbara Bodalska, ‘Konflikt wokół przyjętej w nocy nowelizacji ustawy o IPN,’ euractiv.pl, 1 February 2018, https://​www​.euractiv​.pl/​section/​demokracja/​ news/​47580/​. 26

The politics of constitutional memory  599 core of European historic identity, is rightfully perceived as a meta symbol of past atrocities. However, the suffering of the CEE nations under ‘the other’ Soviet-dominated criminal regime only partly found its recognition, also not without voices of restraint.29 This is why in Poland the legislators equated, in the scope and severity of penalisation, the public dissemination of Holocaust denial and ‘Katyń denial’ (i.e., an act of denying the crime committed in spring of 1940 in the forests of Katyń, where the Soviets murdered almost 22,000 Polish prisoners of war, including military officers, policemen, public servants, intellectuals).30 This is also why laws have been enacted with a clear mnemonic implication and political agenda, presented to the public with a narrative hingeing on the claim that Poland’s previous governments failed to do justice to the country’s Stalinist and communist past. One bill significantly slashed pensions and benefits received by individuals who had worked in the service of the totalitarian state from 22 July 1944 to 31 July 1990.31 A second was awkwardly titled the ‘Law prohibiting the propagation of communism or any other totalitarian system through the names of public buildings, structures and facilities’.32 The bill on social security added to an existing vetting (lustration) and de-communisation law enacted in 2009, stripping individuals with formal links to the communist special services of a portion of their old-age pension benefits, family pension benefits, and disability allowances, regardless of nature of their actual involvement with the regime or the period of their collaboration. This law undoubtedly violates the constitutional right to social security and the principles of equality, protection of acquired rights, and citizens’ trust in the state and the law. Such were the concerns expressed by the District Court in Warsaw in its decision,33 in which the Polish Constitutional Tribunal (pol. Trybunał Konstytucyjny (TK)) was asked to examine conformity of these provisions with the Constitution. However, for more than four years, the TK has not been able to consider the case. In March 2019 the first court judgment revoked a decision by the Pension Department of the Ministry of Internal Affairs and Administration that reduced the pension to a former officer of secret services and ordered it to restore his full pension. Similar court rulings of ordinary courts followed;34 all await a decision of the TK, which seems not to be in a hurry at all. At

Such a ‘divided historical identity’ of Europe could also be observed during the European Parliament’s discussions on the CEE past. For more see Laure Neumayer, ‘Integrating the Central European Past into a Common Narrative: The Mobilizations Around the ‘Crimes of Communism’ in the European Parliament,’ Journal of Contemporary European Studies 23(3) (2015): 344–63. 30 In is forbidden to ‘contradict, publicly and contrary to the facts, Nazi crimes, communist crimes, and other crimes against peace, crimes against humanity or war crimes, perpetrated against persons of Polish nationality and Polish citizens of other ethnicity or nationality in the period between 1 September 1939 and 31 July 1990’ and such acts of denial are to be subject to a fine and/or imprisonment. 31 Ustawa z dnia 16 grudnia 2016 r. o zmianie ustawy o zaopatrzeniu emerytalnym funkcjonariuszy Policji, Agencji Bezpieczeństwa Wewnętrznego, Agencji Wywiadu, Służby Kontrwywiadu Wojskowego, Służby Wywiadu Wojskowego, Centralnego Biura Antykorupcyjnego, Straży Granicznej, Biura Ochrony Rządu, Państwowej Straży Pożarnej i Służby Więziennej oraz ich rodzin, Dz. U. 2016 poz. 2270 (Polish Journal of Laws). 32 Ustawa z dnia 1 kwietnia 2016 r. o zakazie propagowania komunizmu lub innego ustroju totalitarnego przez nazwy jednostek organizacyjnych, jednostek pomocniczych gminy, budowli, obiektów i urządzeń użyteczności publicznej oraz pomniki, Dz. U. 2016, poz. 744 (Polish Journal of Laws). 33 District Court in Warsaw, decision of January 24, 2018, case XIII U 326/18. 34 District Court in Łódź, decision of January 220, 022, case VIII U 1812/21. 29

600  Research handbook on the politics of constitutional law the same time, while the effects of the streets and monuments renaming law may not be as significant as those relating to the reduction of pensions, it nevertheless bears legal and social consequences: it has ignited waves of grass-roots protests in many Polish cities and towns, including seizing the TK with a claim of unconstitutionality.35 Most likely, this legal question will also remain without an answer. One important caveat is in order here. The sense of injustice among these persecuted and oppressed during Stalinist and communist era in Poland is legitimate, as many who benefited from the old regime went unscathed, escaping responsibility and retribution. However, the laws enacted recently, as well as the whole populist narrative that accompany them, make these legal steps look more like a vendetta aimed at bringing ‘justice’ at any price, including the price of breaking constitutional guaranties. The Holocaust-related battlefield sparks the greatest emotions, international tensions, and legal controversies. As one commentator notes, no other discipline has such a strategic importance for Law and Justice party as history.36 This explains attacks on independent scholars, taking over existing institutions and creating new ones with a clear agenda, while ‘the cult of heroism and martyrdom has obscured everything’.37 ‘Critical patriotism’, despised by the current ruling circles, can be defined as honest, critical, and truth-based assessment of one’s own national past and was to a large extent initiated in Poland in 2000 when Jan Tomasz Gross published his book Neighbors: The Destruction of the Jewish Community in Jedwabne, which tells the story of a pogrom in July 1941, carried out by Poles, against more than 300 Polish Jews – their own neighbors in a city of Jedwabne.38 In this book (and his subsequent publications), Gross confronted the readers not with Polish wartime indifference towards the fate of Jews, but with the participation of Poles as active perpetrators in the crimes committed against Jews.39 The process of acknowledging, accepting, and sometimes even apologising for the difficult truth started to be labelled by nationalistic Polish forces as ‘critical patriotism’, and the laws and other legal and political development aimed at its condemnation – and elimination – followed.40

35 Case 15/19. For more in-depth discussion on the question see Uladzislau Belavusau &Anna Wójcik, ‘Street Renaming after the Change of Political Regime: Legal and Policy Recommendations from Human Rights Perspectives,’ T.M.C. Asser Institute for International & European Law Research Paper Series 1 (2018): 1–11. 36 Adam Leszczyński, ‘PiS zdemolował polską historię. Kult bohaterstwa i męczeństwa przysłonił wszystko,’ OKOPress, 9 October 2019, https://​oko​.press/​pis​-zdemolowal​-polska​-historie/​. 37 Ibid. 38 Jan Tomasz Gross, Neighbors: The Destruction of the Jewish Community in Jedwabne, Poland (Princeton University Press, 2001). In English, see also Anna Bikont, The Crime and the Silence: Confronting the Massacre of Jews in Wartime Jedwabne (Farrar, Straus and Giroux, 2016). 39 As noted by Piotr Forecki: ‘The disclosure by Jan Tomasz Gross of the shocking crime in Jedwabne was considered a clash of Poles with their own difficult past, hitherto shrouded in silence and rejected. Jedwabne was literally and symbolically treated as a challenge to see the national past in its full and complex dimension. As an order to enrich the cognitive perspective with those attitudes of Poles towards Jews, which are not a reason to be proud, but a disgrace, and especially to see themselves in a new role: not victims, but perpetrators of someone else's misfortune ‘. Piotr Forecki, Spór o Jedwabne. Analiza debaty publicznej (Wydawnictwo Naukowe Wydziału Nauk Politycznych i Dziennikarstwa UAM, 2008), 66. 40 For a insightful analysis of this phenomenon see Agnieszka Misiewicz, ‘Patrioci krytyczni kontra mitomani. Walka o politykę historyczną w obliczu Grossa,’ Refleksje 3 (2011): 187197.

The politics of constitutional memory  601 The 2018 INRA gained international attention as an unprecedented attempt to silence Holocaust scholars, journalists, and ‘witnesses of history’ who would share their own World War II memories located far from the official ones supported by the Polish government. The law, amended just five months after the first turmoil it caused, stood in direct violation of constitutional free speech rights, as well as international human rights standards. Under pressure from the Polish government, President Andrzej Duda promptly signed INRA into binding law, thereby signifying that the law is compatible with the Polish Constitution. At the same time, however, he made a rather schizophrenic move: he immediately referred some of its provisions (including those concerning free speech limitations) to the TK for ex post review, explaining that he was uncertain about their constitutionality.41 After strong international voices of protest, the June 2018 amendment erased the most dangerous criminal law sanctions from INRA and as the law has not been invoked in the courtrooms so far, the alert over this attempt to govern the history with imprisonment threat weakened with time. However, the same intention was turned into lawsuits based on regular civil code provisions concerning alleged violations of personal rights, including a peculiar category of the ‘right to national pride and identity’. The most prominent example of this trend was the case of Professors Barbara Engelking and Jan Grabowski, where the court of second instance stood in defence of academic freedom, despite the public announcements by Polish Minister of Justice who (improperly, in light of his position) presented the case as a battle over Polish national pride.42

4.

GERMANY’S PRACTICE OF COMING TO TERMS WITH ITS PAST THROUGH MNEMONIC CONSTITUTIONALISM

In his powerful book Justice not Vengeance, Simon Wiesenthal, referring to the question of German guilt and responsibility after the atrocities and genocide committed during World War II, noticed: ‘I don’t think there is any other solution than constantly coming to terms with the past, and learning from it. There is no point in minimising guilt in order to make it easier for sons and daughters to bear the failure of their fathers and grandfathers, their mothers and grandmothers.’43 Post-war western Germany, despite various pitfalls and challenges,44 managed to secure the process of coming to terms with its own past, in line with the core message embodied in Wiesenthal’s words. It did so to a significant extent with the use of constitutional tools directly linked to the concept of militant democracy, with its very German

The full text of the President’s Duda motion of 14 February 2018, is available at https://​ipo​.trybunal​ .gov​.pl/​ipo/​view/​sprawa​.xhtml​?​&​pokaz​=​dokumenty​&​sygnatura​=​K​%201/​18. The Constitutional Tribunal did not ‘manage’ to come up with conclusion before January 2019 when it finally issued its long overdue and rather insignificant judgment. Judgment of the Constitutional Tribunal of Poland, 17 January 2019, K 1/18, otk ZU A/2019, item 6. 42 Commenting the judgment of the Court of Appeal in Engelking and Grabowski case, Minister Zbigniew Ziobro called it ‘a discredit of the court’ and ‘judicial assault on justice’. Adam Leszczyński, ‘Atak furii prawicy po sądowej wygranej autorów “Dalej jest noc”,’ OKO.press, 18 August 2021, https://​ oko​.press/​atak​-furii​-prawicy​-po​-sadowej​-wygranej​-autorow​-dalej​-jest​-noc/​. 43 Simon Wiesenthal, Justice not Vengeance (Weidenfeld and Nicolson, 1989), 357–58. 44 Among them, the well-known Historikerstreit. See Steffen Kailitz, ‘Der “Historikerstreit” und die politische Deutungskultur der Bundesrepublik Deutschland,’ German Studies Review 32(2) (2009): 279–302. 41

602  Research handbook on the politics of constitutional law pedigree. Some traces of ‘militant democracy’ go back to Plato and Montesquieu, searching for best guaranties of securing the stability of the ruling powers. Its modern understanding was first coined by Karl Loewenstein, German lawyer and political scientist of Jewish origin, forced to flee Germany in the face of the impending Nazi threat.45 ‘Militant democracy’,46 according to its original and canonical definition, refers to a set of state laws and policies meant to restrict the freedom of speech and association exercised by former politicians and ideologues of non-democratic regimes, and their contemporary followers and advocates to protect the newly (re)established democracy. The tragedy of World War II proved that the postulates and calls by Loewenstein were a dramatic but ineffectual appeal to stop the Nazi dictatorship. In the world rebuilding itself after the war’s horrors, West Germany was the first state to use militant democracy’s limitations and barriers against their repetition. Germany has reshaped and reestablished its constitutional order and political life by embedding into it the pledge of ‘Never again!’ (germ. ‘Nie wieder!’), including by legal bans of denialism.47 As noted by Markus Thiel, such a wide use of the militant democracy tool-box in the post-war Germany made the concept known universally as a ‘German tradition’ or a ‘German case’.48 The constitution of the today’s united Germany provides for the possibility of far-reaching restrictions on the rights and freedoms of individuals when the threat to democracy and rule of law appears on the horizon. A powerful example of a militant democracy tool being at the same time one of the strongest elements of German mnemonic constitutionalism is Article 21 paragraph 2 of the German Basic Law, stating that political parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic order or to endanger the existence of the German state, shall be found unconstitutional. Furthermore, such parties shall be denied state financing and if such a denial is declared, any favourable fiscal treatment of these parties and of payments made to those parties shall cease.49 Less known, but perhaps even more profound, at least in the symbolic sphere, is Article 20 para45 The most important works by Loewenstein on the concept of militant democracy were presented in scholarly articles published in 1934 and 1937. See Karl Loewenstein, ‘Autocracy versus Democracy in Contemporary Europe, II,’ The American Political Science Review 29(5) (1935): 755–84 and Karl Loewenstein, ‘Militant Democracy and Fundamental Rights, I,’ The American Political Science Review 31(3) (1937): 417–32. under the titles: In the same turbulent period, the concept of Loewenstein, defined in this way, was developed on the basis of sociological research by another Jewish refugee from totalitarianism Europe, Karl Mannheim. He understood militant democracy as an intermediate stage of the functioning of society, situated between the laissez-faire principle and the strictly planned and top-down controlled social order, which in consequence can lead to excessive restriction or even deprivation fundamental rights and freedoms of the individual. Karl Mannheim, Diagnosis of our time: wartime essays of a sociologist (K. Paul, Trench, Trubner, 1943). 46 The term comes from the German ‘strafbare Demokratie’. Other terms often used to describe the same phenomenon include: ‘democracy bound by the values’ (‘wertgebunde Demokratie’), ‘wakeful democracy’ (‘wachsame Demokratie’) or ‘self-defending democracy’ (‘abwehrbereite Demokratie’). 47 ‘Never again’ is a phrase commonly associated with the Holocaust and other genocides. It is said to be used by liberated prisoners at Buchenwald concentration camp to express their anti-fascist sentiment. Philogos, ‘What Is the Source of the Phrase “Never Again”?,’ Mosaic, 21 June 2017, https://​ mosaicmagazine​.com/​observation/​history​-ideas/​2017/​06/​what​-is​-the​-source​-of​-the​-phrase​-never​-again/​. 48 Marcus Thiel, ‘Germany’ in M. Thiel (ed) The ‘Militant Democracy’ Principle in Modern Democracies (Routledge, 2009) 109. 49 German Bundesverfassungsgericht was pointed out as the one responsible for deciding on the question of unconstitutionality of such parties.

The politics of constitutional memory  603 graph 4, which states that all Germans have the right to resist anyone seeking to abolish the constitutional order of the state, if no other remedy is available.50 German mnemonic constitutionalism has also been shaped by the jurisprudence of the German Constitutional Court (germ. Bundesverfassungsgericht – BVerfG). One of the most significant decisions of the Court taken in this regard is the 1956 judgment declaring the unconstitutionality of the Communist Party of Germany.51 Additionally, in the institutional aspect, the functioning of the democratic order is secured by the Office for the Protection of the Constitution (germ. Bundesamt für Verfassungsschutz), which monitors the activity of any extremist group, within the scope of the jurisdiction of the German state, and with particular emphasis on the threats resulting from the activity of the neo-Nazi movement. However, in 2017 the BVerfG refused to declare unlawful the National Democratic Party of Germany (NPD) an extreme right-wing party, even though the Court stated that the party pursued anti-constitutional aims and proposed to establish an ethnically homogenous Germany. In the BVerfG’s assessment, it posed too little a threat to be banned as it lacked the potential to be ultimately successful in implementing its ambitions.52 This judgment shifts away from its earlier case law in that it sets the standard of proof for banning political parties significantly higher by introducing the element of the assessment of ​’potentiality’, absent for example in its decision to ban the Communist Party of Germany. Even so, this ‘new judicial perspective’ need not show that the BVerfG wants to abandon the mnemonic constitutionalism approach clearly embedded in the German basic law. The example of Germany illustrates that mnemonic constitutionalism can serve the good and indicate a state’s true bond to democracy and constitutional order.53 Caused by tragic historic circumstances, this approach, as codified in the German Basic Law seeks to be in line with the self-inculpatory and democracy-defending model of coming to terms with the past. And even though the 2017 NPD decision of BVerfG causes concern, one wants to believe Andreas Voßkuhle, the President of the BVerfG. While attending a live-streamed discussion on the NPD decision President Voßkuhle was asked about its possibly dangerous implications.

In German the provision reads: ‘Gegen jeden, der es unternimmt, diese Ordnung zu beseitigen, haben alle Deutschen das Recht zum Widerstand, wenn andere Abhilfe nicht möglich ist.’. https://​www​ .bundestag​.de/​gg. 51 For a deeper analysis of this and other decisions concerning similar issues see Marcus Thiel (ed) Wehrhafte Demokratie. Beiträge über die Regelungen zum Schutze der freiheitlichen demokratischen Grundordnung (Mohr Verlag, 2003). 52 For a detailed analysis of the 2017 judgment see Gelijn Molier & Bastiaan Rijpkema, ‘Germany’s New Militant Democracy Regime: National Democratic Party II and the German Federal Constitutional Court’s “Potentiality” Criterion for Party Bans: Bundesverfassungsgericht, Judgment of 17 January 2017, 2 BvB 1/13, National Democratic Party II,’ European Constitutional Law Review, 14(2) (2018): 394–409. 53 Other but similar approaches have been taken by Italy and Austria, who have chosen to establish legal measures to protect democratic rule as a consequence of their totalitarian past. In 1948 an amendment to the Italian Constitution was introduced, which banned all actions aimed at reactivating the Italian Fascist Party. In case of Austria, a separate law was drafted and implemented under the name of Prohibiting Act (germ.Verbotsgesetz), aimed at securing the final distancing of the Austrian state from the National Socialist past. For the account of these examples see Stefano Ceccanti & Francesco Clementi, ‘Italy’ in Thiel, The ‘Militant Democracy’ Principle (n 48) 210 and Andreas Auprich, ‘Austria’ ibid 46–47. 50

604  Research handbook on the politics of constitutional law As reported by one of the commentators, Judge Voßkuhle, looking directly into the camera, responded: ​‘When push comes to shove, we’ll pull it off in time’.54

5.

CONTEXTUALISING PUTIN’S ‘ON THE HISTORICAL UNITY OF RUSSIANS AND UKRAINIANS’ WITH RUSSIAN CAPTURE OF MNEMONIC CONSTITUTIONALISM

The post-24 February 2022 reading of Putin’s 2021 ‘essay’ on history55 and his understanding of it, proves that all those who warned that it should have been understood as ‘essentially a call to arms’,56 were not mistaken. His main thesis can be summarised as follows: Ukraine’s independence is a mistake, Ukrainians do not represent a separate nation, and the world order should go back in time to the glorious moments of Russian imperial – and Soviet era greatness. Essentially, however, the same had already been declared through the introduction of various memory laws and, most importantly, safeguarding constitutional amendments with entrenched populist historical narratives therein.57 This deceptive mnemonic constitutionalism prepared ground for the ‘denazification’ process Russians are conducting right now, as this chapter is being written, against Ukrainian women, children and the elderly. The process went smoothly also due to the fact that, as accurately described by Uladzislau Belavusau: A plethora of Russian citizens still believe a specific ideological image, one nurtured by populist politicians and old-regime historians: the Soviet empire as a source of ontological security (…). Central to this ideology, is the pompous heroic narrative regarding World War II, embraced in Russian settings as the ‘Great Patriotic War’ (Великая Отечественная Война) that supposedly single-handedly liberated the nations of Central and Eastern Europe.58

Alexander Pirang, ‘Renaissance of the Militant Democracy?’ https://​www​.gppi​.net/​2017/​03/​27/​ renaissance​-of​-the​-militant​-democracy. Apparently, one of the reasons BVerfG didn’t take NPD very seriously was that it knew that at this point the party was thoroughly infiltrated by government agents. 55 The official English translation is available on the Kremlin’s web page: http://​en​.kremlin​.ru/​ events/​president/​news/​66181. 56 As stated by Anne Applebaum on her Twitter, https://​twitter​.com/​anneapplebaum/​status/​ 1421480489748254723. 57 Scholars specialising in the field of mnemonic constitutionalism and memory laws have been raising alarm over Russian governance of the past. In particular this threat has been defined and addressed by Belavusau and Mälksoo in the context of their assessment of Ukrainian decommunisation memory laws as probably the only memory laws that can be justified in light of mnemonic security. See the remarks of these authors in Verfassungsblog 2018 online symposium on memory laws: Maria Mälksoo, ‘Decommunization in Times of War: Ukraine’s Militant Democracy Problem,’ Verfassungsblog, 9 January 2018, https://​verfassungsblog​.de/​decommunization​-in​-times​-of​ -war​-ukraines​-militant​-democracy​-problem/​ and Uladzislau Belavusau, ‘Final Thoughts on Mnemonic Constitutionalism,’ Verfassungsblog, 15 January 2018, https://​verfassungsblog​.de/​final​-thoughts​-on​ -mnemonic​-constitutionalism/​. See also Uladzislau Belavusau, Aleksandra Gliszczyńska-Grabias & Maria Mälksoo, ‘Memory Laws and Memory Wars in Poland, Russia and Ukraine,’ Jahrbuch des Öffentlichen Rechts der Gegenwart 69 (2021): 95–116; Maria Mälksoo ‘In Search of a Modern Mnemonic Narrative of Communism: Russia’s Mnemopolitical Mimesis during the Medvedev Presidency,’ Journal of Soviet and Post-Soviet Politics and Society 1(2) (2015): 317–39. 58 Uladzislau Belavusau, ‘Mnemonic Constitutionalism and Rule of Law in Hungary and Russia,’ Interdisciplinary Journal of Populism 1(1) (2020): 12–23. 54

The politics of constitutional memory  605 The 2020 constitutional referendum on the amendments to the Constitution of the Russian Federation had, in fact, one motivation and aim behind it, namely to help Putin remain in power beyond 2024, when his presidential term was expected to end definitely. One of the amendments, however, was clearly linked to the mnemonic constitutional reading of the past by Kremlin, as it added a novel Article 67.1 to the Russian Constitution. The new provision prohibits ‘diminishing the importance of the heroism of the people in the defence of the Fatherland.’59 Consequently, the mythology of Soviets as being the sole holders of victory and liberators in ‘Great Patriotic War’ reached the realm of mnemonic constitutionalism, allowing the denial of Soviet culpability for war crimes and after-war occupation in CEE to be officially confirmed in the Russian Basic Law. This corresponds well with apt remarks by Mark Tushnet, when he writes about the nature of authoritarian constitution-making and constitution-amending by authoritarian rulers, who enforce their vision of the nation, the state – and the past.60 The ‘project of neo-imperial reconstruction’, to use an expression by Nikolay Koposov, the top expert on Russian mnemonical ideology, intensified following the Russian military intervention in Ukraine and the annexation of Crimea in 2014.61 Newly introduced provisions included Article 354 para 1 of the Russian Criminal Code, which provides for liability for denying ‘the facts established by the Judgment of the International Military Tribunal for the trial and punishment of major war criminals of European countries of the Axis, the approval of crimes established by the above-mentioned Judgment, as well as dissemination of knowingly false information on the activities of the USSR during the Second World War, committed publicly.’ The law further increases the punishment to up to five years of imprisonment if the same deeds have been committed by using one’s official position or via mass media, as well as with the artificial fabrication of prosecution evidence. Additionally, the law stipulates that ‘Public distribution of information expressing manifest disrespect toward society regarding Russia’s days of military glory and the commemorative dates associated with the defence of the Fatherland or public insults to the symbols of Russia’s military glory are punishable by a fine up to three hundred thousand roubles […]’. In addition, the binding memory laws in Russia include Federal Law 80-FZ of 19 May 1995 ‘On the Entrenchment of the Victory of the Soviet People in the Great Patriotic War of 1941–1945’, whose Article 6 ‘Combating Manifestations of Fascism’ (the term ‘Fascism’ in the context of this law equals ‘Nazism’) takes a firm stance against the restoration of the former regime, the usage of symbols and attributes related to it This new constitutional provision echoes Putin’s speech, quoted by Belavusau: ‘This year, we will celebrate the 75th anniversary of Victory in the Great Patriotic War. For Russia, 9th of May is the greatest and sacred holiday. We are proud of the generation of victors and honour their feat, and our memory is not only a tribute to our heroic past, but it also serves our future, inspires us and strengthens our unity. It is our duty to defend the truth about the Victory; otherwise what shall we say to our children if a lie, like a disease, spreads all over the world? We must set facts against outrageous lies and attempts to distort history. Russia will create the largest and most complete set of archival documents, film and photo materials on the Second World War, accessible both for our citizens and for the whole world. This work is our duty as a winning country and our responsibility to the future generations’. Ibid, 24. 60 Mark Tushnet, ‘The politics of constitution making’ in Chapter 9 of this volume. 61 Even before similar attempts took place, with a 2009 parliamentarian proposal of a bill that would criminalise acts of violation of historical memory of events which took place during World War II and with the establishing by then President Dmitry Medvedev a Presidential Commission to Counter Attempts to Falsify History to the Detriment of Russia’s Interest. Ilya Nuzov, Freedom of Symbolic Speech, supra n 13, at 245. 59

606  Research handbook on the politics of constitutional law and any established collaborating organisations, and the denial of the facts established by the Nuremberg Tribunal as well as other national, military or occupational tribunals based on the Nuremberg Tribunal. This legal framework created by the Kremlin alarmed many, in particular as it directly hit, through court judgments, those Russians who bravely stood against the distorted version of historical truth.62 At the same time, with the outbreak of aggression against Ukraine in February 2022, the full meaning of mnemonic constitutionalism in the Russian edition became painfully clear.

6.

HE WHO HAS AND WEAVES THE STORY IS IN CHARGE

Presenting her 2019 Nobel Prize Lecture The Tender Narrator, Olga Tokarczuk, already invoked earlier in this chapter, said: How we think about the world and – perhaps even more importantly – how we narrate it, have a massive significance, therefore. A thing that happens and is not told ceases to exist and perishes. This is a fact well known to not only historians, but also (and perhaps above all) to every stripe of politician and tyrant. He who has and weaves the story is in charge.63

The ‘story’ in Tokarczuk’s lecture may be also the constitutional one, directly or indirectly told in national constitutions and laws that co-create the legal framework applicable in a given state. The notion of ‘national constitutional identity’, covered most eloquently in this volume by Bárd, Chronowski and Fleck, has also been incorporated into this framework by all states under review in this chapter. It has been used, misused or abused (depending on the state) as a tool of preventing the loss of the ‘unique’ national pedigree of their constitutions.64 Thus, here, again, the crucial question is who is in charge of the story and with what aim the story is being told. As the world, one hopes, already knows, our common obligation is not to allow Putin and his allies to be the ones keeping the story of the past in his brutal grasp, as their lies are mixed only with cynicism and manipulation.65 62 For example, in October 2015, the Moscow City Court Presidium (case N 44г-127/15) found blog posts that negatively assessed the ‘sacralisation’ of the ‘Great Patriotic War’ to be offensive to the memory of the memory of the War itself and consequently, of the whole Russian nation and especially, those Russians who participated in the war. On this and other verdicts of the Russian courts in relation to historical memory see Aleksandra Gliszczyńska-Grabias, Grażyna Baranowska, ‘“Right to Truth” and Memory Laws: General Rules and Practical Implications,’ Polish Political Science Yearbook 47(1) (2018): 97–109. Another prominent example is the April 2022 final court decision ordering enforced dissolution of the International Memorial – Russia’s oldest and most respected scholarly and human rights organisation. International Memorial’s researchers have been actively engaged in recovering the names and stories of the millions of victims of Soviet repression and promoting historical truth. See the statement of the International Federation for Human Rights, https://​www​.fidh​.org/​en/​region/​europe​ -central​-asia/​russia/​dissolution​-of​-hrc​-memorial​-confirmed​-on​-appeal. 63 Olga Tokarczuk, ‘The Tender Narrator,’ Nobel Lecture by Olga Tokarczuk’ (The Nobel Prize), https://​www​.nobelprize​.org/​uploads/​2019/​12/​tokarczuk​-lecture​-english​-2​.pdf. 64 Petra Bárd, Nóra Chronowski and Zoltán Fleck, ‘Use, misuse and abuse of constitutional identity in Europe’ in Chapter 33 in this volume. 65 When the truth about monstrous war crimes committed by Putin’s Army against Ukrainian civilians are being revealed, Putin’s speech delivered in Yad Vashem (sic!) in 2020 sound like a cruel,

The politics of constitutional memory  607 Particularly in the times so uncertain and with societies so polarised, the law, with its social roles and meaning, should prove immune to the attempts of capture by those who want to abuse it for their own political and ideological agendas, translating their intentions into constitutional or other legal provisions. Even more importantly, the way the law is implemented and interpreted by the courts should prevent such attempts.66 A challenging task even for full-fledged democracies, this proves to be almost impossible to secure in the case of authoritarian regimes or states systematically violating the foundations of the rule of law and constitutional order. This in turn opens a free way to intervene in constitutions, to introduce amendments that are aimed at strengthening the nationalistic overtones of public discourse, as proved by Viktor Orbán and his straightforward and in-depth ideological revision of the very foundations of Hungarian constitutionalism, with the use of historical and memories-based motives, most of which are far from historical truth. After all, it is not a coincidence that Orbán and his constitutional lawyers coined a concept of ‘historical constitution’, thus alleging a continuity between constitutional past and present, ‘erasing’ from constitutional memory not only the Communist but also a post-Communist and democratic recent past. The capture of minds and historical memory of one’s own nation is much too often successful and may bring dramatic consequences, as the example of Russia demonstrates. Laws are tools in this process of capturing, and backed with the authority of the ‘majesty of constitution’, they are easily incorporated into what can be labelled as ‘national DNA’. In other cases, such attempts may be challenged, more or less successfully, by counter-narratives and legal resistance (as the example of Poland demonstrates), as well as by narratives that acknowledge the complexity of a nation’s history. Lastly, in the most optimistic and desired scenario, historical implications are introduced as militant democracy instruments, to fulfil the promise of ‘Never again’ and secure the democratic order and social behaviour from the demons of the past (Germany). In recent years, mnemonic constitutionalism has become more of a sword than, as often declared by various political forces, a shield in memory wars. It is also indisputable that the trend of the entanglement of memory and history in politics and ideological disputes in states with authoritarian inclinations or these that have already crossed all red lines and have become totalitarian regimes, should be perceived as another step towards the dismantling of the European project that had been designed as ‘community which contains various historical memories but nevertheless seeks to overcome differences, animosities and wounds from the

cynical abuse of history: ‘Red Army Field Marshal Konev, who then led the military operation to capture the densely populated Silesian industrial region of Germany, used tactics to spare as many civilians as possible and, having received a report about the atrocities committed at Auschwitz, forbade himself from even seeing this camp. Later he wrote in his memoirs that he had no right to lose his moral strength, so that a fair sense of revenge would not have blinded him during military operations and would not have caused additional suffering and casualties among the civilian population of Germany.’ Full text available at: https://​www​.timesofisrael​.com/​this​-crime​-had​-accomplices​-full​-text​-of​-vladimir​-putin​-holocaust​ -forum​-speech/​. 66 Many challenges appear to be faced by judicial reviewers at the international level, namely before the ECtHR. In particular, significant discrepancies in the attitude of the Strasbourg judges towards the ‘western’ and ‘eastern’ European past can be easily traced, as well as Court’s distinctive attitude towards the Holocaust. For detailed elaboration on these different judicial attitudes see Aleksandra Gliszczyńska-Grabias, ‘Stalinism and Communism equals or versus Nazism? Central and Eastern European Unwholesome Legacy in ECtHR,’ East European Politics and Societies 30(1) (2016): 74–96.

608  Research handbook on the politics of constitutional law Past’.67 This attack on European unity can be conducted from within, but also from outside this community: Putin’s Russia, again, serves as top example here. One of the ultimate goals of his brutal war is, undoubtedly, to incite historical hatred and distance between particular European states and nations. If one important lesson is to be drawn from the studying the examples of mnemonic constitutionalism, it is undoubtedly a decisive role of the rule of law guarantees that serve as limitation clauses for the attempts to abuse history and the past with the use of law for political and ideological purpose. Deprived of such guarantees, states and nations are prone to all kinds of manipulations, including ones concerning historical truth.

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610  Research handbook on the politics of constitutional law Nuzov, Ilya. (2019). ‘Freedom of Symbolic Speech in the Context of Memory Wars in Eastern Europe,’ Human Rights Law Review 19: 231–53. Philogos, ‘What Is the Source of the Phrase “Never Again”?,’ Mosaic, 21 June 2017, https://​ mosaicmagazine​.com/​observation/​history​-ideas/​2017/​06/​what​-is​-the​-source​-of​-the​-phrase​-never​ -again/​. Rozett, Robert. (2022). ‘Competitive Victimhood and Holocaust Distortion,’ Israel Journal of Foreign Affairs (forthcoming). Słodkowski, Jędrzej. ‘Mordowaliśmy Żydów, kolonizowaliśmy Ukrainę. I co was tak w tym boli?,’ Gazeta Wyborcza, 19 October 2015, http://​wyborcza​.pl/​1​,75410​,19043800​,mordowalismy​-zydow​ -kolonizowalismy​-ukraine​-i​-co​-was​-tak​-w​.html. Thiel, Markus (ed). Wehrhafte Demokratie. Beiträge über die Regelungen zum Schutze der freiheitlichen demokratischen Grundordnung (Mohr Verlag, 2003). Thiel, Markus. ‘Germany’ in M. Thiel (ed). The ‘Militant Democracy’ Principle in Modern Democracies (Routledge, 2009). Tokarczuk, Olga. ‘The Tender Narrator’ in Nobel Lecture by Olga Tokarczuk (The Nobel Prize), https://​ www​.nobelprize​.org/​uploads/​2019/​12/​tokarczuk​-lecture​-english​-2​.pdf. Waluchow, Wil. ‘Constitutionalism’ in Edward N. Zalta (ed). The Stanford Encyclopedia of Philosophy (Spring 2018 Edition), https://​plato​.stanford​.edu/​archives/​spr2018/​entries/​constitutionalism/​. Wiesenthal, Simon. Justice not Vengeance (Weidenfeld and Nicolson, 1989).

33. Use, misuse and abuse of constitutional identity in Europe Petra Bárd, Nóra Chronowski and Zoltán Fleck

1.

WHAT CAN CONSTITUTIONAL IDENTITY MEAN?

Constitutional identity became popular not only in the conference rooms of constitutional lawyers, but also in political kitchens where ideologies, discourses and metaphors are being made. At first sight national constitutional identity seems eligible as a counter-concept to the huge wave of global constitutionalism. However, the national movements for constitutional identity differ in democracies and countries following the new authoritarian urge. Several views that can be traced when it comes to justifications of a prevailing constitutional regime, even against supranational concepts. ‘The various answers involved can be roughly classified into three distinct categories: First, justifications based on history or tradition; second, justifications based on actual or hypothetical consent; and, third, justifications based on normative precepts that are either conceived as being universally valid or as being valid for all those affected by the particular constitutional regime sought to be justified.’ (Rosenfeld 2009, 6) (emphases added). On the European scene, there is no consensus over the key tasks of rule of law and constitutionalism; consequently, institutional disparity on the European legal field gives large discretionary authority for national political elites. Common European values serve as a universal basis for constitutional and legal developments in the Member States, but they are weak normative measures without at least one of the two other (tradition, consent) justification sources. After having shown how constitutional identity may be created and coded in Section 1, we will give examples of the uses, misuses, and abuses of the concept by various EU Member States in Section 2. Even though controversial, the French and German cases will be discussed as legitimate uses of the concept, while it will be shown that the Bulgarian and Romanian apex courts misuse and the Hungarian and Polish ones straightforwardly abuse it. In Section 3, the CJEU’s counterclaim will be explored, stating that EU identity trumps national identity if the latter goes against the common values such as the Rule of Law. Section 4 summarises the lessons of the comparative analysis. 1.1

Constructing Identity

According to the mainstream social science literature identities are fluid, changeable, and context dependent. They thus might be open for concentrated manipulation and used strategically. Societies and other collectivities are open in varying degrees to manipulation: In societies with solid and established norm and value systems, the cognitive and emotional toolkit is more equipped and more resistant against external (political) manipulations. As Ann Swidler outs it, less settled societies are more vulnerable to ready-made ideologies and other ‘canned’, prepackaged value choices (Swidler 1986). Big social transformations, as we know 611

612  Research handbook on the politics of constitutional law from the classic anomie studies, favour value distortions and disturb the norm system; old behavioural patterns cease to function, and learned, long-established patterns are not valid any more. Settled societies have firm norm structures and intermediary channels for successive generations. Thanks to the deep crises of democracy (the loss of the democratic will of the community) excessive populism takes advantage of norm confusion caused by social changes. Modern populist phenomena are not simply against elites and establishments, but are based on exclusive identity constructions.1 The consequences of identity politics in Europe, that is using identity constructions for political aims, mostly grasping and keeping power, became evident after the collapse of Communism. It seemed for a while that there was no universal ideology other than liberalism. But, according to Fukuyama’s book on identity, the original aim of liberalism, namely the recognition of equal rights of individuals, has faded in the light of multiculturalist ideology, which demands equal respect for all cultures (Fukuyama 2018). This change breeds populist revolt against the new challenge of relativisation of group identities and mobilised old essentialist group definitions that separate the own group from outsiders and foreigners and gave impetus for hatred. The overall instability and uncertainty as a general sentiment of the global contemporary time provided fertile soil for the harsh answer to this challenge. The revival of group identities naturally distanced the stable, fixed fields of us as nation or ethnos from universalist indeterminacy and ‘homelessness’. The sociological concept of identity has a dual property. On the one hand identity is always multiple: We all have overlapping identities depending on the context and situations. On the other hand these fragments are always socially constructed by different agents and methods. The fact that identity is multidimensional, in other words that the modern multiple self is living in a complex web of intersecting social standpoints, means that there is no single master identity (Lahire 2011). It is continuously changing – what we always experience is a situation-dependent emphasis of different elements of the identity-web. One of the purposes of populist identity politics is to diminish this complexity, which might be comforting for many in a fearful, demanding environment. For this politics some strategies by which identity is usually constructed come in handy, easily developed ideologically. In political discourse actors usually apply the strategy of essentialising, where the national identity is a dominant attribute. Belonging to a nation often has a mobilising effect. Thus identity in a political discourse is an asset, which can be used as a strategic resource. And as such it is unequally available: Identity inequality might compensate or strengthen other social differences. Some actors in the public sphere under the tutelage of the state’s preferred identity politics can show high authenticity value while having low functional or professional status (‘He is an unreliable worker, but an honest member of our nation.’). The global, commercial, and foreign are easily devalued, and adopted institutions are legitimately deformed according to local, national usages as a form of ‘adaptations’. Boundary-work with moralising is also part of the repertoire of identity politics, by which symbolic borders between in-group and out-groups are created, recreated, and confirmed. When a politician argues against a European decision on the humanitarian treatment of refugees by saying that European decision-makers attacked our border-fence because the foreign interests cannot take into consideration our own inner authentic living conditions, he 1 See Paul Blokker’s chapter 34 ‘Populist constitutional politics and civil society fundamentalism’ in this volume.

Use, misuse and abuse of constitutional identity in Europe  613 redraws the moral content of the wall. With the same momentum this argumentation defines a value-hierarchy: refugees and migrant people are dangerously alien from our culture, in worst case from our biological clarity. Because identity constructions are dynamic, it is a good target for populist manipulations. Constitutional identity in political discourses most of the time refers to the exclusionary definition of national traditions and has nothing to do with actual legal history or legal development. Here we do not argue against the term constitutional identity, we simply say that it is context-dependent. Political strategies, purposes, and actual wording determine the seriousness of the identity argument. Where a government simply seeks a pretext for evading universal legal values, constitutional identity functions as a populist phraseology. Since identity is a dynamic, ever-shifting phenomenon, it varies temporally and spatially according to audience, situation, and other contextual factors. It follows that individuals have to make an effort to create a sense of self-continuity. A consistent life story needs active narrative work. Identity is not something ‘deep in our personality but rather consists of being recognised by others as being the same person’ (Brekhus 2015, 142). Sometimes this consistency work, bringing harmony between past and present, needs reparative narrations. Especially after historical cataclysms or regime changes facing the past can be painful. Political ideologies offer easy short-circuits instead of processing or facing the past. 1.2

Codes of Identity

As individual identity is dynamic, collective identities are also under constant construction and reconstructions. New, collapsing, rival discourses characterise the process of identity construction within a more comprehensive cultural scene in connection to other discourses and codes. A wholesale change of the political system usually opens a new narrative field. The liberal constitutional code of democratisation after the collapse of Communist rule didn’t attempt to stabilise itself as identity construction. In Hungary, after 2010 the opportunity of building a politically useful identity construction fell into the populist authoritarianism’s lap. The options were not limitless. There was no way back to the traditionalist code partly because of the strong universalist political environment (democratisation, human rights, Westernisation, Europeanisation, modernisation), partly because that box was originally empty anyway. The possible traditionalist code was without content. The universalist code could not become the source of national identity despite the wide social expectations for European membership. The EU in its current form is not suited for identity construction for nations that lost their traditionalist roots during the first half of the 20th century. Only the new rule of law institutions, preeminently the first constitutional courts, tried to construct some elements of a new discourse, but without proper social embeddedness. ‘The missionary zeal of universally constructed communities does not just open the borders to include outsiders, but insists on overcoming all borders and differences’ (Giesen 1998). While the simultaneous presence of different, even antagonistic codes is a usual setting, there are some combinations with high tensions. European common values, human rights, tolerance are hardly compatible with homogeneity, forced nationalisation, personal subordination to authority. Normally working with the codes, elaboration and polishing identity belong to intellectuals who have interpretative monopolies in cultural fields. Their relation to political power is of critical significance. During the new Hungarian and Polish culture war governed by the regime

614  Research handbook on the politics of constitutional law against the intellectual autonomies, non-intellectual appointed political figures announced their claim to define the community’s cultural identity. Thus the cultural work of elaboration of identity became the task of party-politics, the issue of everyday political battles. The public as the audience and addressee of the cultural and political work of identity-elaboration also became manipulated with the help of elimination of media pluralism and freedom. The inevitable trivialisation of ideas during the ‘nationalisation’ in the hands of populist politicians became primitive and rancorous demagogy. These were also institutionalised by politically selected culture financing, compulsory national educational program, and more. The usual discourse rituals of identity-forming cultural work taking place in academic, literary, journalistic circles were distorted into political loyalty enforcement rituals. From the perspective of an aggressive identity politics, the elimination of all the horizontal discourses, dismantling all the autonomous cultural places seem necessary. In this cultural sense several regimes in the EU, such as the Hungarian and the Polish, are totalitarian, and their identity claims are fake in the sense that they wish to keep up the semblance of democracy and the rule of law packaged in a solid and legitimate concept, but which ultimately aim at giving the governments a carte blanche authorisation to overwrite supranational constraints on power.

2.

CONSTITUTIONAL IDENTITY CASE-LAW – SOME EXAMPLES OF USE AND ABUSE

The previous part of the chapter outlined the political, sociological, and socio-psychological characteristics of constitutional identity. This section discusses how EU Member States attempt to conceptualise constitutional identity as a normative claim under their constitutional law. From this perspective, three trends emerge: the use of constitutional identity as a legal argument, the practice of misuse, and the practice of abuse. None of these practices is an end in themselves, i.e., to prove the identical constitutional values of the given country’s constitutional system. Instead, they are – or try to be – normative arguments against the primacy of EU law. From this perspective, the primacy of EU law can be understood as an identity-forming factor of the EU legal order (Weber 2022), while the values of a principled nature enshrined in Article 2 TEU are seen as elements of common identity of the EU and its Member States. Using constitutional identity as a constitutional argument, a national constitutional court frames the claim as an internal (addressed to the constitution-making/amending or legislative power) or external (addressed to the EU court or legislator) signal to seek limits to the primacy of EU law. Our examples are the French and German practice, but the Italian Taricco-cases also belong to this group (Fabbrini and Pollicino 2017). In these cases, there is no political pressure on the courts to formulate an identity claim, and the national constitutional identity is not the decisive argument in the processes, which are characterised by effective judicial dialogue between the national (constitutional) court and the CJEU (Germany), or at least confirms the importance of dialogue through the preliminary ruling procedure (France). In the misuse examples constitutional identity is also invoked to justify an exception to a specific EU commitment but lacks a convincing argumentation behind it. These are the Romanian and Bulgarian examples. In both the court followed to some extent the constitutional policy of other state actors. By abusive use, we mean when the invocation of constitutional identity is gratuitous, it is not in fact formulated as a normative claim but is influenced by political actors and is

Use, misuse and abuse of constitutional identity in Europe  615 clearly intended to support a specific or general circumvention of EU obligations using the constitutional court. Such a practice has occurred in Hungary and Poland. These examples best illustrate the weaknesses of constitutional identity as a normative concept: ‘namely, its fundamental indeterminacy and the possible arbitrariness of its application’ (Szente 2022). We will not discuss the individual cases in detail here, as they have already been extensively analysed in the literature (see some most recent examples, Bruggeman and Larik 2020; Orbán 2020; Allezard 2022; Baudoin 2022; Delcamp 2022; Fleck, Bárd and Chronowski 2022; Popravka 2022; Szente 2022; Várnay 2022), instead, we will only highlight the main trends from an identity policy perspective. 2.1

Use of Constitutional Identity Claims to Signal the Limits of Primacy

2.1.1 The French practice Although the most famous concept of constitutional identity is that of the German Federal Constitutional Court, the French Constitutional Council (FCC) had used the notion earlier. Until 2005, the FCC usually referred to the ‘essential conditions for the exercise of national sovereignty’ in French and EU law norm-conflicts (e.g. FCC, 2005–524/525 DC [2005]; 85–188 DC [1985]). In 2006 the Constitutional Council – notwithstanding the clause on the protection of national identity, which first appeared in the Treaty establishing a Constitution for the EU and was later taken over by the Luxembourg Treaty in Article 4(2) TEU – changed its legal argumentation, shifting to the ‘Constitutional Identity of France’ (FCC 2006–540 DC [2006]). According to Allezard, ‘It clearly made a choice of terminology that had no other ambition than to confirm definitively that there could potentially be limits to European integration’ (Allezard 2022, 60). While the 2006 decision was only aimed at reviewing national legislation transposing the EU directives and, within the framework of that legislation, only the standards satisfying the conditions of direct effect, the examination of the breach of constitutional identity was extended in 2017 to international agreements concluded by the EU through the free trade agreement with Canada (CETA) in July 2017 (FCC 2017–749 DC [2017]) and in June 2018 to national provisions implementing the GDPR Regulation in national law (FCC 2018–765 DC [2018]), and also national acts implementing the unconditional and precise provisions of EU decisions in December 2018 (FCC 2018–750/751 DC [2018]). According to Allezard, ‘[v]ery recently, the French Constitutional Council expressly referred to ‘constitutional identity’ in a decision of October 15, 2021, and for the first time specified the content of this term. It stated that the prohibition of delegating the exercise of public power to private persons was a principle inherent to the Constitutional Identity of France’ (FCC 2021–940 QPC of 15 October 2021, Société Air France; Allezard 2022, 59). All in all, the French Constitutional Council is not characterised by a confrontational relationship with the CJEU, and it develops the content of the French constitutional identity on a case-by-case basis, not exclusively on terms of the norm conflicts with EU law. Moreover, due to the nature of the Council’s powers and the procedural deadlines, according to its practice, it is much more the task of the courts to examine the implementation of EU law. 2.1.2 The German case-law There is no doubt that the German Federal Constitutional Court (GFCC) has had a significant impact on the development of EU constitutional law. On the one hand, it has given impetus

616  Research handbook on the politics of constitutional law to the development of fundamental rights protection in the EU through the preservation of fundamental rights as defined in the Solange cases (Solange I. 1974; Solange II. 1986; Bananenmarktordnung 2000), and the ultra vires preservation is of crucial importance for the division of powers between the EU and the Member States and, indirectly, for the principle of democracy in the EU. Simultaneously, with the slow neglect of the test of equivalency of fundamental rights protection – as Community/EU fundamental rights protection developed step by step in the case law of the CJEU, and finally, in 2000, the Parliament, the Council and the Commission adopted the EU Charter of Fundamental Rights, drafted in a convention model, as an inter-institutional agreement –, the GFCC has elaborated the ultra vires test (Mayer 2000), which was identified firstly during the constitutional review of the Maastricht Treaty (Maastricht 1993), and was also confirmed in the Lisbon ruling (Lisbon 2009). On the ground of the reasoning of the Constitutional Court, the priority of EU law is just grounded on an international treaty even after the conclusion of the Lisbon Amendment; thus, the scope of its application depends on the framework of the constitutional mandate (in the case of the German constitution it is Article 23, the EU-clause), which sets the framework for the conferral of competences, and if an EU legal instrument oversteps the scope of the transferred competences, the GFCC may prohibit the application of EU law. It is also noteworthy that the subsequent German case law imposed strict limits on ultra vires control that almost excluded its practical application. According to the GFCC, originally (Honeywell 2010) the precondition of the ultra vires control is the obvious and for the Member States disadvantageous overstep of competences, and the request for preliminary ruling from the CJEU by the GFCC. The Luxemburg-judgment introduced the notion of constitutional identity protection. Later on, the OMT-judgment in 2016 about the Outright Monetary Transactions program of the European System of Central Banks and of the European Central Bank (Classen 2016b), and a decision in December 2015 in the European Arrest Warrant case, which ruled that extradition of a person convicted in absentia to Italy violated constitutional identity, gave life to the control of the violation of constitutional identity (Classen 2016a; Ballegooij and Bárd 2016). That idea had been raised as a thought experiment in the Lisbon Treaty decision, but was for a long time without any substantive content. Critics of this case-law point out that the GFCC has been very generous in its interpretation of constitutional identity, failing in each case to analyse what is a specific, particular, very German constitutional identity that is not included in the values set out in Article 2 TEU. That Article lists human dignity (from which the principle of personal criminal liability would flow), freedom, democracy, equality, the rule of law and respect for human rights, and the requirement of the democratic exercise of public power. Each had previously been expressed in German practice as part of constitutional identity, and so fit in perfectly with Treaty provision (Classen 2016a, b). The GFCC has so far failed to answer the question of what is the specifically German content of democracy and human dignity that distinguishes it, if at all, from the content of EU law. (Vincze and Chronowski 2018; Wendel 2021). Against this background, in May 2020, the PSPP-judgment of the GFCC attracted huge attention. As widely discussed by the constitutional law scholarship (see e.g. Meyer 2020; Blutman 2020; Feichtner 2020), the GFCC declared ultra vires and inapplicable in the territory of Germany a European Central Bank decision and a CJEU-judgment. The latter was preceded by a preliminary ruling procedure, initiated by the GFCC: if a potentially ultra vires act of the EU is at stake, the constitutional court shall give a chance to the CJEU to consider the validity of the EU act concerned.

Use, misuse and abuse of constitutional identity in Europe  617 It is not our task here to go into the details of the decision, as many authors have done so, but we highlight three specific features. First, the decision returns to ultra vires control. It mentions constitutional identity and assumes the right to vote as part of it on the basis of the eternity clause of the German constitution, but this is not the decisive argument. Second, the decision condemns the federal parliament and government for failing to carry out a thorough examination of the proportionality of EU decisions. Third, one piece of criticism that followed the GFCC decision was its potential viral effect (Maduro 2020), which can even undermine in pessimistic views the primacy of EU law. It is true that the GFCC can be seen as a kind of influencer of the European constitutional judiciary network; its judgments are often cited and followed by other Central-European constitutional courts.2 However, these transplants are not always successful (Vincze 2020), and more importantly, the avenues and case law developments in each country can completely differ from each other. In other words, it is not the GFCC’s fault if other constitutional courts cite its judgment as a point of reference, even though this would not follow from their own case law. It is true however that this dangerous legal transplant took root in Romania, Poland, and Hungary. 2.2

Misuse of Constitutional Identity Claims

2.2.1 The Bulgarian case From Bulgaria, the ‘case of baby Sara’ can be highlighted, which was referred to the CJEU by a Bulgarian Administrative Court, not especially as a question of constitutionality but as an administrative question, while at the same time the national court in the preliminary ruling procedure referred to Bulgarian national and constitutional identity. Sara has two mothers, a Gibraltarian-born UK citizen who – according to the UK citizenship laws – is not able to pass her citizenship to her child, the other a Bulgarian citizen. Bulgarian citizenship law follows the ius sanguinis principle. The mothers were married, and their child was born, in Spain. The mothers were both named as parents on the child’s birth certificate issued in Spain. However, Bulgarian registry authorities refused to accept that a child could have two mothers and refused to accept the Spanish birth certificate, denying a Bulgarian citizenship (ID card) to Sara, unless the applicant mother stated which parent was the Sara’s biological mother. The applicant refused to do so. Thus, the Bulgarian authority put the child at risk of statelessness (de Groot 2021). It is important to describe a second case, a CJEU decision (C‑490/20, V.M.A. v. Stolichna obshtina, rayon ‘Pancharevo’ 2021) upon the preliminary ruling request of a Bulgarian administrative court. Homophobic and transphobic legislation is on the rise in the Central European region – almost defined as an element of cultural identity. There are several examples: the LGBTQ-free zones in Poland; a similar case in Poland in which a child born in the UK with two mothers, one a Polish national, was denied a Polish passport (Supreme Administrative Court of Poland, II OPS 1/19, 2019; Mazurczak 2018; Wysocka-Bar 2020); the Coman-case in Romania (C-673/16, Coman and others 2018); the ninth amendment to the Hungarian constitution in 2020, which states that the father is male, the mother is female, and ‘Hungary shall protect the right of children to a self-identity corresponding to their sex at birth, and shall

2



See David Law and Mark Tushnet’s chapter 17 ‘The politics of judicial dialogue’ in this volume.

618  Research handbook on the politics of constitutional law ensure an upbringing for them that is in accordance with the values based on the constitutional identity and Christian culture of our country.’ (Fundamental Law of Hungary, Article XVI(1)). In the CJEU case, the Administrative Court of the City of Sofia asked ‘whether the obligation to which the Bulgarian authorities may be subject, when drawing up a birth certificate, to refer in that document to two mothers as being the parents of the child concerned, is liable to have an adverse effect on public policy and the national identity of the Republic of Bulgaria, since that Member State has not provided for the possibility of mentioning on a birth certificate two parents of the same sex for that child.’ The referring court noted ‘that the legal provisions governing that child’s parentage are of fundamental importance in the Bulgarian constitutional tradition and in the Bulgarian legal literature on family and inheritance law, both from a purely legal perspective and from the point of view of values, given the current stage of development of society in Bulgaria.’ (C‑490/20, V.M.A. 2021, para 28) Thus the Bulgarian Administrative Court considered ‘that it is necessary to strike a balance between, on the one hand, the constitutional and national identity of the Republic of Bulgaria and, on the other hand, the interests of the child, and in particular the child’s right to a private life and to free movement’ (C‑490/20, V.M.A. 2021, para 29). The CJEU pointed out that although ‘under Article 4(2) TEU, the European Union is to respect the national identities of its Member States, inherent in their fundamental structures, political and constitutional, [but] the concept of public policy as justification for a derogation from a fundamental freedom must be interpreted strictly, with the result that its scope cannot be determined unilaterally by each Member State without any control by the EU institutions’ (C‑490/20, V.M.A. 2021, paras 54 and 55). The lesson of the case is that the CJEU treated the case as a fundamental rights issue and resolved it from the perspective of the best interest of the child, without going into a deeper analysis of national identity and Article 4(2) TEU. The Court completely accepted here the Advocate General’s opinion: ‘the obligation for a Member State to issue an identity card or a passport to a child who is a national of that Member State, who was born in another Member State and whose birth certificate issued by the authorities of that other Member State designates as the child’s parents two persons of the same sex, and, moreover, to recognise the parent-child relationship between that child and each of those two persons in the context of the child’s exercise of her rights under Article 21 TFEU and secondary legislation relating thereto, does not undermine the national identity or pose a threat to the public policy of that Member State’ (C‑490/20, V.M.A. 2021, para 56). The main conclusion of the CJEU was the following: ‘in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates as that child’s parents two persons of the same sex, the Member State of which that child is a national is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States’ (C‑490/20, V.M.A. 2021, para 69; for a detailed analysis see Tryfonidou 2022; Lima 2022). It is clear from the V.M.A. case that the CJEU has consistently sought to transform the ‘constitutional identity’ argument into a fundamental rights issue and has not hesitated to draw on ECHR practice.

Use, misuse and abuse of constitutional identity in Europe  619 2.2.2 The Romanian case Less attention has been paid to the fact that the Romanian Constitutional Court (RCC) also had an open confrontation with the CJEU in 2021. The case goes back to the Judgment of the CJEU on 18 May 2021 on several references for preliminary rulings from Romanian national courts (C‑83/19, Asociaţia ‘Forumul Judecătorilor din România’ 2021), in which the CJEU upheld the primacy of EU law and recognised the binding nature of the cooperation and verification mechanism (CVM) established by the European Commission against Romania in 2007. It also dealt with the legality of two decisions approving the regulations on the appointment and dismissal of senior prosecutors and assistant prosecutors of the prosecution department for the investigation of offences committed within the judicial system (SIIJ). (Tănăsescu – Selejan-Gutan 2021) On 8 June 2021, the RCC ruled on a petition concerning the unconstitutionality of several provisions of the Law on the organisation of the judiciary concerning the SIIJ (RCC 390/2021)3 First, the RCC found that the law and the SIIJ are in line with the Romanian Constitution and the rule of law. The national judge is entitled under Article 148 of the Constitution4 to disregard any provision of national law that is contrary to EU law, but EU law does not prevail over the Romanian Constitution. The RCC also stated that the national court does not have the power to examine the conformity with European law of a provision of domestic law declared constitutional under Article 148 of the Romanian Constitution. Romania may not adopt legislation that is contrary to the obligations of EU Member States, but the constitutional limitation of this prohibition is based on the concept of national constitutional identity, which, however, was not specified by the Romanian Constitutional Court. Since the CJEU ruled in its judgment of 18 May 2021 that the obligations arising from the European Commission’s Decision 2006/928 apply to all national authorities competent to cooperate with the European Commission at institutional level, the RCC held that only political authorities are obliged to respect and apply this judgment, but not the courts. The operative part of the judgment of the CJEU, in which the CJEU ruled that a national court is entitled to disregard national law contrary to the scope of Decision 2006/928, was not justified under the Romanian Constitution as interpreted by the RCC. According to the reasoning, the reports of the CVM developed under Decision 2006/928 are not European law rules that a national court may directly apply by disregarding a national norm. A national judge cannot be in a position to decide on the priority application of certain recommendations in the case of a law declared constitutional by the RCC.

In English see https://​bit​.ly/​3SrNSXW. Article 148. Integration into the European Union 1. Romania’s accession to the constituent treaties of the European Union with the objective of transferring certain powers to community institutions and of jointly exercising with the other member states the powers regulated in those treaties shall be decided by a law adopted by the Chamber of Deputies and the Senate in joint session, with a majority of two-thirds of the deputies and senators. 2. As a result of the accession, the provisions of the constituent treaties of the European Union as well as the other mandatory community rules take precedence over conflicting provisions of national law, in conformity with the terms of the Accession Act. 3. The provisions of paragraphs 1 and 2 shall apply accordingly to the accession to the acts amending the constituent treaties of the European Union. 4. Parliament, the President of Romania, the Government and the judicial authority guarantee the implementation of the obligations resulting from the Accession Act and the provisions mentioned in paragraph 2. 5. The Government transmits the draft proposals for mandatory acts to the two Chambers of Parliament before they are submitted to institutions of the European Union for approval. 3 4



620  Research handbook on the politics of constitutional law In this respect, the RCC also concluded that the CJEU's decision was ultra vires and ‘effectively prohibited national courts from disregarding provisions of national law that are contrary to EU law when applying it.’ (Selejan-Gutan 2021) There does not seem to have been any direct pressure from national policy makers in the Bulgarian and Romanian cases. The courts invoked constitutional and national identity voluntarily but without giving it a substance. This is a misuse of the constitutional identity argument because it goes against fundamental rights or the principle of judicial independence. It is also worth adding that in these countries the misuse of the identity claim is rather an exception than the rule, as the EU has a significant impact on the constitutional identities of these Member States (Popravka 2022). 2.3

Abuse of Constitutional Identity Claims

2.3.1 The Hungarian case The Hungarian Constitutional Court (HCC) had an important intermediary and instrumental role in the introduction of the concept of the constitutional identity into the constitutional law of the System of National Cooperation. Arbitrariness and cherry-picking were apparent in HCC Decision 22/2016 (XII. 5.). (Bárd and Pech 2019; Bakó 2018; Chronowski et al. 2022) In this government-friendly ruling, the HCC signalled it would support the Government’s and especially PM Orbán’s ‘constitutional identity’ justification for defying EU migration law. The case started with the petition of the Ombudsman. On 3 December 2015, the Commissioner for Fundamental Rights (Ombudsman) applied to the Constitutional Court for interpretation of the Fundamental Law. The specific constitutional problem underlying the petition was according to the Ombudsman the violation of the constitutional prohibition on collective expulsion when implementing EU decisions on the transfer of asylum seekers residing in Italy and Greece to Hungary. As there was no deadline for the Constitutional Court to take a decision on such petitions, the specific case was dormant until November 2016. A failed attempt to amend the Fundamental Law in October 2016 also belongs to the genesis. The government intended to set new substantive limits on the joint exercise of power with other EU Member States to protect Hungarian constitutional identity and prohibit the resettlement of foreign population in the territory of Hungary. There was a failed referendum (2 October 2016) on the EU refugee relocation quota in the background of the issue (Szente 2016). The government’s plans with the referendum and the subsequent constitutional amendment failed that time but the Constitutional Court gave a helping hand by establishing in the aforementioned decision that ‘upon a relevant motion and in the course of exercising its competences it may review whether the joint exercise of powers with other EU Member States or by way of the EU institutions violates human dignity, or another fundamental right, the sovereignty of Hungary or its constitutional identity based on the country’s historical constitution.’ According to the HCC ‘constitutional identity equals the constitutional (self-)identity of Hungary,’ and its content is to be determined by the HCC on a case-by-case basis based on the Fundamental Law, its purposes, the National Avowal (preamble to the constitution), and the achievements of the Hungarian historical constitution. The latter is so vague, and the National Avowal is written in a language that is so far from legal precision, that this definition can only be understood as granting a carte blache type of derogation to the executive and the legislative from Hungary’s obligation under EU law. As Gábor Halmai put it, it was ‘nothing but national

Use, misuse and abuse of constitutional identity in Europe  621 constitutional parochialism, which attempts to abandon the common European constitutional whole’ (Halmai 2018a). Seemingly the decision was strongly inspired by the GFCC’s case law, but the historical constitution based identity review is very different. While the German Basic Law has an eternity clause [GG Article 79(3)], which was a reference point for the GFCC in its Lisbon-judgment, the Hungarian Fundamental Law does not contain a similar provision. The Hungarian decision is therefore a borrowed one, but this, like all legal transplants (Vincze 2018), has unintended consequences. The Hungarian Constitutional Court anchored constitutional identity in the historical constitution, which is again a vague concept with uncertain boundaries. In principle, any violation of any norms that relate to the designated control areas (dignity and human rights, sovereignty, constitutional identity), even those beyond the Fundamental Law (historical constitution), may be considered, when the HCC reviews the joint exercise of power within the EU. Opacity is enhanced with the statement that ultra vires and identity control are different standards, which are related to each other, but ‘the two controls relating to them must in some cases be carried out with respect to each other’ (Reasoning [67]). According to the Court Hungary’s constitutional identity is not a list of closed and static values. At the same time, some elements were highlighted by the body, with a strong exemplary character: freedoms, the division of power, the republic as the form of the state, respect for public law autonomies, freedom of religion, the exercise of legitimate power, parliamentarism, equality of rights, recognition of judicial power, protection of the nationalities living with us. These are some of the achievements of the historical constitution in the interpretation of the Constitutional Court, on which the Fundamental Law and the entire Hungarian legal system rest. In addition, the protection of constitutional identity may arise in cases affecting the living conditions of individuals, in particular their privacy and personal and social security, as well as their independent decision-making responsibilities, which are protected by fundamental rights, and in the case of the linguistic, historical, and cultural traditions of Hungary. According to the reasoning of the Constitutional Court, Hungary's constitutional identity is a value that was not created by the Fundamental Law, which merely acknowledges its existence. Hungary cannot therefore relinquish it, as long as it has sovereignty and until then the Constitutional Court remains obliged to protect this constitutional identity. (Reasoning [62]–[66]) In this form, constitutional identity is an opaque and alterable standard which, at the time of the decision, was not even based on the text of the Fundamental Law.5 However, according to the decision, the text does not even have to assume or refer to this, because the Fundamental Law just acknowledges this constitutional identity. It is, therefore, ab ovo existing absolute, or as formulated by the Constitutional Court: Hungary can only be deprived of its constitutional identity ‘through the final termination of its independent statehood’ (Reasoning [67]). By establishing Constitutional identity, the HCC identified a higher rule above the FL, and gave itself a very wide margin of appreciation regarding what is constitutional and what is not, independent of the text and content of the Fundamental Law (Chronowski et al. 2022, 445). The most significant aftermath of the decision is that the failed Seventh Amendment to the Fundamental Law in 2016 was reloaded in 2018, and this time it was adopted. The Seventh

5 Ironically, justice András Zs. Varga also pointed out this, see concurring opinion of András Zs. Varga, Reasoning [111]: the decision ‘did not explain the legal basis for this finding’.

622  Research handbook on the politics of constitutional law Amendment to the Fundamental Law added the following to Article E (2) in 20186 in order to specify the necessary degree of joint exercise of powers: ‘The exercise of powers under this paragraph shall be in conformity with the fundamental rights and freedoms enshrined in the Fundamental Law, nor shall it restrict the inalienable right of disposition of the territorial unit, population, form of government and state system of Hungary.’7 With this, the provision on the protection of fundamental rights and state sovereignty became part of the Europe clause, while the protection of constitutional identity was formulated under Article R (4) as a general duty of all state bodies. Together with the fact that it was now placed into the text of the Fundamental Law, the constitutional identity as a normative rule does not became any clearer (Szente 2022, Fleck et al. 2022). The Ninth Amendment in 2020 – during the COVID-19 state of emergency, just to increase confusion – introduced as a right of the child ‘the upbringing in accordance with the values based on the constitutional identity and Christian culture of the country’. There was a long silence on the part of the HCC, although in several constitutional complaint cases – like the CEU (C-66/18, European Commission v. Hungary 2020) or the NGO (C-78/18, European Commission v. Hungary 2020) case – there was an opportunity for a European judicial dialogue, but the HCC did not request a preliminary ruling from the CJEU (Chronowski and Vincze 2021; Várnay 2022). The identity case law was ‘developed’ only five years later with the 32/2021. (XII. 20.) CC decision. Again, it was an abstract interpretation of the Fundamental Law, upon the request of the government. It was filed by the Justice Minister (Judit Varga). The Government expected the HCC to declare the CJEU Judgment C-808/18 to be contrary to Hungary’s constitutional identity. This CJEU judgment of December 2020 stated – among other matters – that Hungary had breached the EU asylum acquis by the so-called push-back practice, i.e., the removal of all third-country nationals staying illegally in Hungary’s territory, without observing the procedures and safeguards laid down in EU law. The Justice Minister claimed that by requiring Hungary to provide the guarantees laid down in the relevant EU directives for the entry of third-country nationals into its territory, Hungary loses control over the population, which is a serious violation of the constitutional identity of the state. Article XIV(2) of the Fundamental Law prescribes that ‘[f]oreigners residing in the territory of Hungary may only be expelled under a lawful decision’. The Minister did not invoke this rule in her petition, but relied on Article XIV(4) (the right to asylum) instead to which was also added a further exemption in 2018 with the Seventh Amendment of the FL, about which the EU Commission had previously expressed concerns: ‘A non-Hungarian national shall not be entitled to asylum if he or she arrived in the territory of Hungary through any country where he or she was not persecuted or directly threatened with persecution’. The HCC – unlike its Polish counterpart – tried to navigate itself out of the conflict. It stated that the review of an ECJ judgment cannot be the subject of an abstract constitutional interpretation, nor did the procedure in the present case extend to an examination of the primacy of EU law. It concluded that the joint exercise of competences with other Member States as provided for in the Fundamental Law Article E) must comply with the requirement of the protection of fundamental rights and must not restrict Hungary's inalienable right to dispose of its territorial unity, population, form of government and organisation of the State. According 6 7



Seventh Amendment to the Fundamental Law of Hungary (28 June 2018, Article 2). Explanatory memorandum to the proposal for a Seventh Amendment to the Fundamental Law.

Use, misuse and abuse of constitutional identity in Europe  623 to the decision, if the exercise of shared competences is deficient, Hungary, in accordance with the presumption of reserved sovereignty, is entitled to exercise the non-exclusive powers of the EU until the institutions of the European Union take the necessary measures for the effective exercise of the shared competence. This is a dangerous conclusion, however, because it essentially leaves it up to the Government to decide which EU legislation adopted under shared competence is declared inapplicable. 2.3.2 The Polish case On 7 October 2021, the Polish Constitutional Court (PCC) declared Articles 1, 2 and 19 of the TEU partially unconstitutional. While these same treaty provisions had previously been found compatible with the Polish Constitution, the composition of the court itself had changed radically. At the initiative of the Polish Prime Minister, a panel of judges appointed in breach of established procedure was set up and reinterpreted the wording of both the TEU and the Polish Constitution, serving the Polish government's fight for freedom against the CJEU (PCC decision K 18/04). The beginnings of how the PCC got to this point can be traced back to the change of government in 2015. The first aspect of the Polish constitutional crisis (Sadurski 2018; Sadurski 2019; Kinowska-Mazaraki 2021; Drinóczi and Bień-Kacała 2019 and 2021) was the restriction of constitutional review, manifested in the tension between the current parliamentary majority and the Polish Constitutional Court, and the power-technical explanation of the Polish government’s attempt to reduce constitutional review in order to achieve systemic – but not necessarily constitutional – changes. The PCC tried to resist, but this did not prevent the government majority from finally seizing the Court, overruling its decisions in the spirit of restorative constitutionalism, and embarking on a vigorous judicial reform (Koncewicz 2016). It is worth recalling here that the ECtHR, in its judgment of 7 May 2021 in Xero Flor v. Poland, examined the occupation of the Polish Constitutional Court and found that the presence of Mariusz Muszyński, one of the judges elected by the new Parliament in 2015, violated Article 6 ECHR (Szwed 2021). The long saga of EU debate on the complex Polish court reforms is also well documented (Gajda-Roszczynialska and Markiewicz 2020, Kawczyńska 2021, C-585/18, A.K. v. Krajowa Rada Sądownictwa 2019; C‑791/19, European Commission v. Republic of Poland 2021), the details of which are beyond the scope of this chapter. Suffice it to mention here that one of the EU procedures culminated in March 2021, when the CJEU also ruled in Case C-824/18 concerning the appointment of judges to the Polish Supreme Court. The CJEU’s decision ‘overruled’ the Polish Constitutional Court’s decision in practice and in effect, emphasising that the principle of primacy of EU law is binding on all bodies of a Member State. (C-824/18, A.B. and others 2021) In response to the CJEU’s judgment of March 2021, Polish Prime Minister Mateusz Morawiecki submitted an abstract application to the Constitutional Court for interpretation of Articles 1, 2 and 19 TEU. This did not relate to a specific case but asked for a general interpretation of the relationship between EU law and the Polish Constitution. The Constitutional Court handed down its decision on 7 October 2021, one day after the CJEU rejected Poland’s request to annul its order suspending the functioning of the Polish judicial disciplinary councils, which had been granted an interim measure (Jaraczewski 2021; PCC decision K 3/21). The Polish Constitutional Court ruled in October 2021 that the first and second subparagraphs of Article 1 TEU allowed for a new stage of European integration, in which the

624  Research handbook on the politics of constitutional law EU institutions act beyond the powers enshrined in the Treaties and delegated by Poland in accordance with Article 90 of the Polish Constitution. In particular, the Constitutional Court highlighted the second subparagraph of Article 1, which describes the TEU as marking ‘a new stage in the process of creating ever closer unity among the peoples of Europe’. According to the judgment, the new stage of integration, in which the powers of the CJEU exceed those conferred on the EU and the Polish State loses its sovereignty, is incompatible with Articles 2 and 8 of the Polish Constitution, which states that the Republic of Poland is a democratic State where the Constitution is the supreme law. Another thesis of the Constitutional Court is that Articles 2 and 19(1) TEU are contrary to the Polish Constitution in that they allow lower national courts and the Polish Supreme Court to disapply the Constitution, to disregard decisions of the Constitutional Court and to review the legality of the procedure for appointing judges, which the Constitutional Court considers to be outside the competence of the EU. The Constitutional Court argues that, by deriving from Article 19(1) TEU the right to examine the organisation and structure of the judicial system in the Member States, the CJEU has essentially conferred on itself a new power. According to the Supreme Court, that power cannot in any event be derived from Article 2 TEU, which is merely a list of values of ‘axiological importance’ as opposed to a statement of clear rules. The decision has caused much more consternation than the PSPP ruling of the GFCC, even going so far as to be seen as a ‘legal polexit’. Whereas the GFCC had taken an otherwise controversial decision on a specific case, following the principle of gradualism and after a request for a preliminary ruling, the Polish body had questioned the treaty foundations of the Union – its fundamental objectives, values and operating principles. The decision of the PCC is clearly seen as a politically motivated move by a body which, according to the ECtHR, does not meet the criteria of a legitimate court because of its composition (Jaraczewski 2021; Thiele 2021; Hofmann 2021; The Committee on Legal Sciences of the Polish Academy of Sciences 2021). According to Kochenov, the Polish legal situation is paradoxical: if the Polish Constitutional Court is not a legitimate judge according to the ECtHR’s practice (Xero Flor case), it cannot issue a valid judgment, and thus its act cannot be interpreted as an activation of Article 50 TEU (exit clause). In any case, the exit clause provides that this provision of the Treaty must be applied in accordance with the constitutional requirements of the Member State, but the Polish state occupied by the ruling party is operating at the cost of a series of constitutional violations, i.e., national constitutional requirements are not being met, making Article 50 practically inapplicable (Kochenov 2021). What are the lessons from the Hungarian and Polish cases? The approach that conflicts can be resolved through ‘judicial dialogue based on mutual respect’ is too optimistic, as in these cases the constitutional courts have taken unilateral decisions in order to enforce government policy. Constitutional identity in such political situations cannot be transformed into a convincing normative argument and claims against EU obligations cannot be based on it.

3.

THE EUROPEAN COUNTERCLAIM: THE CJEU TWIN JUDGMENTS ON THE CONDITIONALITY REGULATION

The CJEU at least since the Portuguese Judges Association Case (Case C-64/16 Associação Sindical dos Juízes Portugueses v. Tribunal de Contas 2018, paras 37–38) came up with an important line of case-law (Pech and Platon 2018), responding to rule of law violations in the

Use, misuse and abuse of constitutional identity in Europe  625 Member States (Kochenov & Bárd 2020). In its judgment on the Conditionality Regulation the CJEU responded to identity arguments by domestic players, and made clear that Article 2 TEU values are an integral part of the very identity of the European Union as a Rechtsgemeinschaft and that every Member State, whatever their national constitutional identity, has an obligation to adhere to these values including the Rule of Law, which they promised to respect at all times. After a long gestation process and many compromises on the way, Regulation 2020/2092 on a general regime of conditionality for the protection of the Union budget was adopted on 16 December 2020 and it applies to all funds including the RFF8 as of 1 January 2021.9 The voting threshold got considerably more difficult as compared to the first draft of 3 May 2018,10 and the scope also got narrower, when the rule of law conditionality was more closely tied to the EU budget. But further compromises were needed, when Hungary and Poland, the most likely candidates to be affected by the new rules blocked the adoption of the Multiannual Financial Framework (MFF) and the Next Generation EU COVID-19 recovery fund (NGEU) (Scheppele, Pech, Platon 2020; Valero 2020; Herszenhorn and Bayer 2020). As a compromise, the final text of Regulation 2020/2092 was agreed to be accompanied by guidelines binding the Commission as to how to apply the Regulation (Alemanno & Chamon 2020; Dimitrovs 2020).11 Despite all the compromises, Hungary and Poland also initiated an action of annulment under Article 263 TFEU against the new law. The European Council also agreed to finalise the guidelines once this dispute was decided by the CJEU, and apply the Regulation only thereafter.12 In its 16 February 2016 twin judgments responding to the Hungarian and Polish allegations13 the CJEU held that the legal basis for the Regulation, i.e. Article 322(1)(a) TFEU was solid, it respected the principle of conferral, did not interfere with the Article 7 TEU procedure, defined the Rule of Law with sufficient clarity, and the process the Conditionality Regulation laid down was sufficiently clear.

Communication from the Commission, Guidelines on the application of the Regulation (EU, EURATOM) 2020/2092 on a general regime of conditionality for the protection of the Union budget, 2 March 2022, C(2022) 1382 final, para 25. 9 Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ L 433I , 22.12.2020, pp 1–10. 10 Instead of the original plans to block the Commission’s efforts in suspending funds by a supermajority, in the revised version a qualified majority in the Council must support the Commission’s decision for it to go into effect. 11 As Alemanno and Chamon argue this ‘shows an unprecedented disregard for the Rule of Law.’ A Regulation is binding and effective as it stands irrespective of any further interpretative measures. The text of the Regulation does not mention any guidelines whatsoever. Also, in line with Article 15(1) TEU European Council does not have law-making powers, therefore agreeing on the guidelines can be interpreted as a step taken ultra vires. (Alemanno and Chamon 2020) 12 In this regard it is sufficient to invoke Article 278 TFEU, according to which actions before the CJEU do not have a suspensory effect. Nevertheless, the Commission kept its political promise made in violation of the Rule of Law and waited for the CJEU. Finally, on 16 February 2022 the CJEU dismissed the Hungarian and Polish claims on all accounts, on 2 March the guidelines had been adopted, and the Commission finally triggered the conditionality mechanism on 27 April 2022, the first Member State targeted was Hungary. 13 The applications and accordingly the two judgments were similar, with slight differences. But most parts are identical, so for the sake of simplicity only the Hungarian judgment is referenced in this chapter. 8

626  Research handbook on the politics of constitutional law When defining the legal basis and thus the aim of the law, the CJEU attached importance to the evolution of the Conditionality Regulation, which in its original wording was more of a Rule of Law instrument, and later by way of amendments became an anti-corruption law (C-156/21, Hungary v. Parliament and Council 2022, para 113) The objective of the final version, the CJEU stressed, ‘is to protect the Union budget from effects resulting from breaches of the principles of the rule of law in a Member State in a sufficiently direct way’ (ibid, para 119). The emphasis is on the legal consequences to protect the EU budget and EU financial interests in case if Rule of Law problems in the Member States put these at risk, and the aim is not to penalise the breaches (ibid). Even though some criticise the CJEU for being too much preoccupied with the financial aspects of conditionality (Fisicaro 2022; C-156/21, Hungary v. Parliament and Council 2022; C-157/21, Poland v. Parliament and Council 2022) nevertheless, the CJEU does take the opportunity to make the link between the EU budget and European values (ibid, paras 146, 176, 244, 267), and makes an important and unprecedented identity argument on the way. While the Applicants believe that any condition attached to the distribution of EU money must be closely linked either to one of the objectives of a programme under which money is distributed, or to the sound financial management of the Union budget, the Respondents and the intervening parties believe that a conditionality mechanism ‘can also entail ‘horizontal conditionality’ in the sense that the condition in question can be linked to the value of the rule of law contained in Article 2 TEU, which must be respected in all areas of Union action’ (ibid, para 123). It is in this context that the CJEU referred back to the Copenhagen criteria and the fact that any country joining the EU also ‘joins a legal structure that is based on the fundamental premise that each Member State shares with all the other Member States, and recognises that they share with it, the common values contained in Article 2 TEU, on which the European Union is founded’ (ibid, para 125). Referring to its case-law on non-regression, especially in Repubblika (C-896/19, Repubblika v. Il-Prim Ministru 2021, para 62), the judgment states that Member States must continue to comply with common values after accession. The common values that must equally be respected by accession countries and by Member States also beyond accession, ‘define the very identity [emphasis added] of the European Union as a common legal order [therefore] the European Union must be able to defend those values, within the limits of its powers as laid down by the Treaties’ (C-156/21, Hungary v. Parliament and Council 2022, para 127).14 It follows that in line with the conferral principle and the principle of consistency of EU policies, the rule of law can form the basis of a conditionality mechanism covered by the concept of ‘financial rules’ in line with Article 322(1)(a) TFEU (ibid, para 128). Related to the argument that the EU must be able to defend the values that constitute part of EU identity, the CJEU also made clear that Article 7 TEU is not the only tool in the toolbox to protect Article 2 TEU values. This seems to be an obvious point, especially in light of the mushrooming instruments and the CJEU case-law, (Pech 2021; Pech & Kochenov 2021) but since the Council Legal Service represented a different position, (Council of the European Union 2018), harshly criticised by scholars (Scheppele, Pech & Kelemen 2018), it was beneficial to set it right.

14 See Violeta Beširević’s chapter 35 ‘Militant democracy: a friend or enemy of democratic backsliding?’ in this volume.

Use, misuse and abuse of constitutional identity in Europe  627 Another instance where the identity of the EU plays a role is the discussion about the precision or vagueness of the Rule of Law. Hungary and Poland stressed their long-held view that it was impossible to define the rule of law with sufficient precision, which endangers the principle of legal certainty (Pech et al. 2020b; 2020a). But having a detailed explanation of what the rule of law was, was also problematic in the Applicants’ view, since a rigid definition would go contrary to the national identity of the Member States. The CJEU stated that foreseeability does not preclude the EU lawmaker from making use of abstract legal notions, such as the Rule of Law. (C-156/21, Hungary v. Parliament and Council 2022, paras 223–24) At the same time, the Regulation does not define the notion too rigidly: the law does not intend to provide an exhaustive definition of the Rule of Law, but merely sets out, a number of the most relevant principles which it covers (ibid, para 227). Also, as opposed to Applicants’ claim, the Regulation does not go beyond the limits of the concept of the Rule of Law, when referencing fundamental rights, especially the principle of effective judicial protection and non-discrimination. These are also Rule of Law issues. Thus the CJEU seems to acknowledge the interconnectedness of values enshrined in Article 2 TEU (Carrera, Guild & Hernanz 2013). Referencing its earlier statements, the CJEU restates that respect for the Rule of Law results from EU membership and that ‘Article 2 TEU is not merely a statement of policy guidelines or intentions, but contains values which […] are an integral part of the very identity of the European Union [emphasis added] as a common legal order, values which are given concrete expression in principles containing legally binding obligations for the Member States’ (C-156/21, Hungary v. Parliament and Council 2022, para 232). As if to respond to the national identity claims of certain Member States and their apex courts, the CJEU states that the EU in line with Article 4(2) TEU respects the national identities, inherent in Member States’ political and constitutional structures.15 Therefore, states enjoy a certain degree of discretion in implementing the principles of the rule of law. But all in all, each and every Member State has an obligation as to the result to be achieved and in one way or another, adhere to the Rule of Law (ibid, paras 233–34). In other words, there is absolutely no way for a Member State to depart from and overwrite the common value of the Rule of Law by referring to its constitutional identity. A national constitutional identity must not go against the joint understanding of the Rule of Law in the EU.

4. CONCLUSIONS 4.1

Assessment of the Use of Constitutional Identity in Hybrid Regimes

The post-communist decline of the rule of law forms a difficult puzzle for the time being. Even the role of cultural factors is highly disputed, despite a large literature on the cultural embeddedness of constitutionalism, rule of law, and democracy. The initial euphoria of system change evaporated quickly. It clearly turned out that the ‘rule of law orthodoxy’ and institutional optimism based on the idea that Western legal institutions are able to function independently from their social context, was inevitably folly. Meanwhile on the surface politicians, lawyers, and public actors dutifully use the concept of the rule of law. Public

15

See David Law and Mark Tushnet’s chapter 17 ‘The politics of judicial dialogue’ in this volume.

628  Research handbook on the politics of constitutional law discourse remained far from the interiorisation of the values of rule of law, though. It might be misleading to rely too heavily on the results of the usual political surveys about acceptance of democracy, for most of the time these surveys tell us little about a political community’s real relationship to democratic rules, actions, and values. In the case of the post-communist countries, among the macro quantitative researches world value surveys inform about the odds of social support for values essential for democratic society (Tamanaha 2004). These surveys foretold what was coming more efficiently than scholars: Hungary for one stands closer to East-Balkan societies from the perspective of trust, tolerance, and cooperation, values which are required for a working democracy. Hungary in this comparison belongs to the closed societies (Keller 2010). The democratic content of constitutional identity could be constitutional patriotism, which according to its original meaning can be the result of the democratic development of political community connected to the patriotic code (Habermas 1992). In European hybrid regimes, Hungary, but also Poland, modernisation, transforming the legal system, often divided the nation, reducing the chance of patriotic reevaluation of the constitutional development. Successful constitutional revolution, which could in the long run unite the nation and give solid basis for patriotic pride, is unknown. Under such historical circumstances connecting national identity to modern constitutionalism failed. Another telltale sign of the fundamental emptiness of the concept of constitutional identity is its swift and complete disappearance from the spaces of everyday life. The term is used almost exclusively in external relations, particularly against the European rule of law reproaches. For internal ideological persuasion the constitutional argument is unknown, it has no interpretable social content, unsuitable for strengthening national identity. For this aim, to fill the gap or vacuum left by the weakness of patriotic code, primordialism appeared on the scene. In its original sense primordialism is a construction built on the imagination of barbaric, hostile otherness, which cannot be assimilated and cannot be let in – even connections with them are dangerous. The typical reaction of the community is purification, isolation, and homogenisation; all tenderness or concessions to foreign elements come together with the disruption of the inner values of our community. This type of identity is based on naturalising, thus national identity such as race or gender cannot be altered, the boundaries are eternal, divine, and stable. European migration policy goes completely in the opposite direction, the migrant is the constant and efficient diabolical element, the imagined enemy more important for a primordial community than the imagined community. No matter how anachronistic it is in a European Member State, the prevailing ideology is based on this identity construction. But it is much more than Eastern prejudices or populism. This is the mother tongue of the regime well understood by the natives, as opposed to the foreign language of constitutionalism reserved for foreigners, and which remains an alien code. Liberals, NGOs, the opposition speak that foreign language, whereby they serve foreign interests, are enemies of the people, not part of the nation. Attacks against gender-consciousness, acute and furious illiberalism, disgrace of Western multiculturalism go hand in hand with essentialist, primordial self-reference and militarism. The ‘white, Christian, heterosexual’ as central characteristics must be defended against the liberals, who attacked these natural elements of this type of an identity. The term constitutional identity now corresponds to this political, ideological use. As in the case of many other concepts, such as dialogue, rule of law, or democracy different political cultures mean different things, there is a huge semantic gap between the various parts of Europe.

Use, misuse and abuse of constitutional identity in Europe  629 4.2

Counterclaim to the Counterclaim

Being a rule of law violator is a great stigma. Therefore, albeit illiberal governments do everything to do away with checks and balances constraining power, they do it under disguise and claim to be adherent to European values. One form of disguise is mixing legality with the rule of law, another is claiming the government acts upon the will of the majority, yet another is to refer to international examples, even though the lawmaker relies on a selection of worst practices from other jurisdictions (Scheppele 2013). It does not happen overnight: instead, step by step, the rule of law is ridiculed by being turned into the rule of ‘arbitrary’ or ‘evil’ law.16 Relying on a ‘theory of cheating’ (Sajó 2021) these systems, which are characterised by oxymorons such as constitutional populism (Blokker 2019a; 2019b; Halmai 2019) or abusive constitutionalism (Landau and Dixon 2020), refer to the newly found concept of constitutional identity, which in practice is rather a carte blanche authorisation to override international including European norms binding a Member State. The rule of law being reduced to a slogan rather than an effective opposition to arbitrary power is not only a problem for authocratising countries, but it is a threat to the broader European project, too. Borrowing from the President of the Court, this is an ‘extremely serious situation’ that ‘leaves the Union at a constitutional crossroads’ with the EU’s ‘foundations as a Union based on the rule of law’ now being ‘under threat’ (Lenaerts 2021). Little wonder that the CJEU finally stepped up against constitutional identity arguments that endanger the EU from within. Since the EU is a community of laws and a community based on the rule of law, without the latter and ‘without an independent judiciary, there would no longer be law, no legal system. If there is no ‘law’, there can hardly be more integration. The aspiration of creating ‘an ever closer union among the peoples of Europe’ is destined to collapse if legal black holes begin to appear on the judicial map of Europe’ (Prokuratura Rejonowa w Mińsku Mazowieckim et al. 2021, para 138).

REFERENCES Alemanno, Alberto & Merijn Chamon. (2020). ‘To Save the Rule of Law You Must Apparently Break It,’ Verfassungsblog: On Matters Constitutional, December. https://​verfassungsblog​.de/​to​-save​-the​ -rule​-of​-law​-you​-must​-apparently​-break​-it/​. Allezard, Laurianne. (2022). ‘Constitutional identity, identities and constitutionalism in Europe,’ Hungarian Journal of Legal Studies 63(1): 58–77. DOI: 10.1556/2052.2022.00391. Bakó, Beáta. (2018). ‘The Zauberlehrling Unchained?: The Recycling of the German Federal Constitutional Court’s Case Law on Identity-, Ultra Vires- and Fundamental Rights Review in Hungary,’ ZaöRV (4): 863–902. Ballegooij, Wouter Van & Petra Bárd. (2016). ‘Mutual Recognition and Individual Rights – Did the Court Get It Right?,’ New Journal of European Criminal Law (4): 459460. Baudoin, Marie-Élisabeth. (2022). ‘Constitutional identity, a new legal Babel in Europe,’ Hungarian Journal of Legal Studies 63(1):21–37. DOI: https://​doi​.org/​10​.1556/​2052​.2022​.00398. Blokker, Paul. (2019a). ‘Populism as a Constitutional Project,’ International Journal of Constitutional Law 17(2): 536–53. https://​doi​.org/​10​.1093/​icon/​moz028.

See Mark Tushnet and Dimitry Kochenov’s Introduction, Martin Krygier’s chapter 2 ‘The ideal of the rule of law and private power’ and Paul Craig’s chapter 37 ‘The politics of constitutional meltdown’ all in this volume. 16

630  Research handbook on the politics of constitutional law Blokker, Paul. (2019b). ‘Populist Counter-Constitutionalism, Conservatism, and Legal Fundamentalism,’ European Constitutional Law Review 15(3): 519–43. https://​doi​.org/​10​.1017/​S157401961900035X. Blutman, László. (2020). ‘Red Signal from Karlsruhe: Towards a New Equilibrium or New Level of Conflict?,’ Central European Journal of Comparative Law 1(1). Brekhus, Wayne. Culture and Cognition: Patterns in the Social Construction of Reality. (Polity Press, 2015). Bruggeman, R. and Larik, J. (2020). ‘The Elusive Contours of Constitutional Identity: Taricco as a Missed Opportunity,’ Utrecht Journal of International and European Law 35(1): 20–34. DOI: http://​ doi​.org/​10​.5334/​ujiel​.489. Carrera, Sergio, Elspeth Guild, & Nicholas Hernanz. (2013). The Triangular Relationship between Fundamental Rights, Democracy and the Rule of Law in the EU Towards an EU Copenhagen www​ .ceps​ .eu/​ download/​ Mechanism. Brussels: Center for European Policy Studies. https://​ publication/​?id​=​8230​&​pdf​=​Fundamental​%20Rights​%20DemocracyandRoL​.pdf. Classen, Claus Dieter. (2016a). ‘Zu wenig, zu fundamentalistisch – zur grundrechtlichen Kontrolle “unionsrechtlich determinierter” nationaler Hoheitsakte Anmerkung zum Beschluss des BVerfG vom 15.12.2015, 2 BvR 2735/14,’ Europarecht (3): 304–12. Classen, Claus Dieter. (2016b). ‘Europäische Rechtsgemeinschaft à l’allemande? Anmerkung zum Urteil des BVerfG vom 21.06.2016, 2 BvR 2728/13 u.a.,’ Europarecht (5): 529–44. Chronowski, Nóra & Attila Vincze (2021). ‘The Hungarian Constitutional Court and the Central European University Case: Justice Delayed Is Justice Denied: Decision of the Hungarian Constitutional Court of 6 July 2021 and the Judgment of the ECJ of 6 October 2020, Case C-66/18,’ European Constitutional Law Review 17(4): 688–706. doi:10.1017/S1574019621000407. Chronowski, Nóra, Attila Vincze & Boldizsár Szentgáli-Tóth. (2022). ‘Decision 22/2016. (XII. 5.) AB – Constitutional Self-identity of Hungary’ in Fruzsina Gárdos-Orosz and Kinga Zakariás (eds) The main lines of the jurisprudence of the Hungarian Constitutional Court: 30 case studies from the 30 years of the Constitutional Court (Nomos, 1990–2020) 441–458. Council of the European Union, Legal Service. 2018. ‘Proposal for a Regulation of the European Parliament and of the Council on the Protection of the Union ́s Budget in Case of Generalised Deficiencies as Regards the Rule of Law in the Member States, 13593/18,’ https://​data​.consilium​ .europa​.eu/​doc/​document/​ST​-13593​-2018​-INIT/​en/​pdf. Delcamp, Alain. (2022). ‘The constitutional identity of the member states: False evidence or constitutive element of a new architecture of the Union?,’ Hungarian Journal of Legal Studies 63(1): 38–57. DOI: 10.1556/2052.2022.00387. Dimitrovs, Aleksejs. (2020). ‘Op-Ed: “Rule of Law-Conditionality as Interpreted by EU Leaders”,’ EU Law Live (11 December 2020). https://​eulawlive​.com/​op​-ed​-rule​-of​-law​-conditionality​-as​-interpreted​ -by​-eu​-leaders​-by​-aleksejs​-dimitrovs/​. Drinóczi, Tímea & Agnieszka Bień-Kacała. (2019). ‘Illiberal Constitutionalism: The Case of Hungary and Poland,’ German Law Journal (8): 1140–66. Drinóczi, Tímea & Agnieszka Bień-Kacała. Illiberal Constitutionalism in Poland and Hungary. The Deterioration of Democracy, Misuse of Human Rights and Abuse of the Rule of Law (Routledge, 2021). Fabbrini, Federico and Oreste Pollicino. (2017). ‘Constitutional Identity in Italy: European integration as the Fulfilment of the Constitution’ EUI Working Paper LAW 2017/06, https://​cadmus​.eui​.eu/​ bitstream/​handle/​1814/​45605/​LAW​_2017​_06​.pdf​?isAllowed​=​y​&​sequence​=​1. Feichtner, Isabel. (2020). ‘The German Constitutional Court’s PSPP Judgment: Impediment and Impetus for the Democratization of Europe,’ German Law Journal 21(5): 1090–1103. Fisicaro, Marco. 2022. ‘Protection of the Rule of Law and “Competence Creep” via the Budget: The Court of Justice on the Legality of the Conditionality Regulation: ECJ Judgments of 16 February 2022, Cases C-156/21, Hungary v Parliament and Council and C-157/21, Poland v Parliament and Council,’ European Constitutional Law Review 18(2): 334–56. https://​doi​.org/​10​.1017/​S1574019622000128. Fleck, Zoltán, Petra Bárd & Nóra Chronowski. (2022). ‘Inventing Constitutional Identity in Hungary,’ MTA LAW WORKING PAPERS (6): 1–31. Fukuyama, Francis. Identity: Contemporary Identity Politics and the Struggle for Recognition. (Profile Books, 2018).

Use, misuse and abuse of constitutional identity in Europe  631 Gajda-Roszczynialska, Katarzyna & Krystian Markiewicz. (2020). ‘Disciplinary Proceedings as an Instrument for Breaking the Rule of Law in Poland,’ Hague Journal of the Rule of Law 3: 451–83. Giesen, Bernhard. Intellectuals and the German Nation: Collective Identity in an Axial Age. Cambridge Cultural Social Studies (Cambridge University Press, 1998). Groot, David A.J.G. de. (2021). ‘EU law and the mutual recognition of parenthood between Member States: the case of V.M.A. v Stolichna Obshtina,’ Global Citizenship Observatory (GLOBALCIT), Robert Schuman Centre for Advanced Studies in collaboration with Edinburgh University Law School, January, https://​cadmus​.eui​.eu/​bitstream/​handle/​1814/​69731/​RSCAS​_GLOBALCIT​_SR​ _2021​_1​.pdf​?sequence​=​3​&​isAllowed​=​y. Habermas, Jürgen. (1992). ‘Citizenship and National Identity : Some Reflections on the Future of Europe’ 12(1): 1–19. Halmai, Gábor. (2018a). ‘Absolute Primacy of EU Law vs. Pluralism: The Role of Courts.’ https://​ me​.eui​.eu/​wp​-content/​uploads/​sites/​385/​2018/​05/​IJPL​_Special​_Issue​_Concluding​_remarks​_Halmai​ _final​.pdf. Halmai, Gábor. (2018b). ‘Abuse of Constitutional Identity. The Hungarian Constitutional Court on Interpretation of Article E) (2) of the Fundamental Law,’ Review of Central and East European Law 43(1): 23–42. https://​me​.eui​.eu/​gabor​-halmai/​wp​-content/​uploads/​sites/​385/​2018/​05/​Abuse​_Halmai​ _final​.pdf. Halmai, Gábor. (2019). ‘Populism, Authoritarianism and Constitutionalism,’ German Law Journal 20(3): 296–313. https://​doi​.org/​10​.1017/​glj​.2019​.23. Herszenhorn, David M. & Lili Bayer. (2020). ‘EU in Crisis over Hungary and Poland’s €1.8T Hold-Up.’ Politico (16 November 2020). https://​www​.politico​.eu/​article/​eu​-in​-crisis​-over​-hungary​-poland​ -budget​-hold​-up/​. Hofmann, Herwig C.H. (2021). ‘Sealed, Stamped and Delivered: The Publication of the Polish Constitutional Court’s Judgment on EU Law Primacy as Notification of Intent to Withdraw under Art. 50 TEU?’ VerfBlog (13 October 2021), https://​bit​.ly/​3Sosgf6. Jaraczewski, Jakub. (2021). ‘Gazing into the Abyss: The K 3/21 decision of the Polish Constitutional Tribunal’ VerfBlog (12 October 2021), https://​bit​.ly/​3zAcQf0. Kawczyńska, Monika. (2021). ‘Combating the constitutional crisis in Poland – Can the European Union provide an effective remedy?,’ Hungarian Journal of Legal Studies 62(2): 229–53. Keller, Tamás. (2010). ‘Hungary on the World Values Map,’ 20(1): 27–50. Kinowska-Mazaraki, Zofia. (2021). ‘The Polish Paradox: From a Fight for Democracy to the Political Radicalization and Social Exclusion,’ Social Sciences (3). Kochenov, Dimitry & Petra Bárd. (2020). ‘The Last Soldier Standing? Courts Versus Politicians and the Rule of Law Crisis in the New Member States of the EU,’ European Yearbook of Constitutional Law 243–86. Kochenov, Dimitry. (2021). ‘Mad in Poland (December 21, 2021),’ EU Law Live (22 October), https://​ bit​.ly/​3oRB13F. Koncewicz, Tomasz Tadeusz. (2016). ‘Farewell to the Polish Constitutional Court’ VerfBlog (9 July), https://​bit​.ly/​3QAZA0X. Lahire, Bernard. The Plural Actor (Polity Press, 2011). Landau, David & Rosalind Dixon. (2020). ‘Abusive Judicial Review: Courts against Democracy,’ 53: 1313–87. Lane Scheppele, Kim, Laurent Pech & R. Kelemen. (2018). ‘Never Missing an Opportunity to Miss an Opportunity: The Council Legal Service Opinion on the Commission’s EU Budget-Related Rule of Law Mechanism.’ Verfassungsblog: On Matters Constitutional (November), https://​verfassungsblog​ .de/​never​-missing​-an​-opportunity​-to​-miss​-an​-opportunity​-the​-council​-legal​-service​-opinion​-on​-the​ -commissions​-eu​-budget​-related​-rule​-of​-law​-mechanism/​. Lenaerts, Koen. (2021). ‘Constitutional Relationships between Legal Orders and Courts within the European Union.’ FIDE 2021 XXIX FIDE CONGRESS Opening Ceremony on 4 November 2021. https://​fide2020​.eu/​wp​-content/​uploads/​2021/​11/​FIDE​-Opening​-Ceremony​_​-4​-November​ -2021​_Koen​-Lenaerts​.pdf. Lima, Dafni. (2022). ‘Towards Cross-Border Recognition of Same-Sex Parenthood,’ The Cambridge Law Journal 81(2): 239–42. doi:10.1017/S0008197322000320.

632  Research handbook on the politics of constitutional law Maduro, Miguel Poiares. (2020). ‘Some Preliminary Remarks on the PSPP Decision of the German Constitutional Court’ VerfBlog (6 May 2020) https://​verfassungsblog​.de/​some​-preliminary​-remarks​ -on​-the​-pspp​-decision​-of​-the​-german​-constitutional​-court/​. Mayer, Franz. Kompetenzüberschreitung und Letztentscheidung (C.H. Beck, 2000). Mazurczak, Anna. (2018). ‘Poland’s Supreme Administrative Court recognizes Same-sex Parents’ VerfBlog (18 October 2018), https://​verfassungsblog​.de/​polands​-supreme​-administrative​-court​ -recognizes​-same​-sex​-parents/​. Meyer, Franz C. (2020). ‘The Ultra Vires Ruling: Deconstructing the German Federal Constitutional Court’s PSPP decision of 5 May 2020,’ EuConst 16: 733–69. Pech, Laurent. 2021. ‘The Rule of Law’ in Paul Craig and Gráinne de Búrca (eds) The Evolution of EU Law (Oxford University Press, 2021) 307–38, https://​doi​.org/​10​.1093/​oso/​9780192846556​.003​.0010. Pech, Laurent, Joelle Grogan, Petra Bárd, Julinda Beqiraj, Barbara Grabowska-Moroz, Dimitry Kochenov & Carlos Closa, et al. (2020a). ‘Meaning and Scope of the EU Rule of Law’ RECONNECT Deliverable 7.2. Pech, Laurent, Joelle Grogan, Petra Bárd, Julinda Beqiraj, Barbara Grabowska-Moroz, Dimitry Kochenov & Carlos Closa, et al. (2020b). ‘Unity and Diversity in National Understandings of the Rule of Law in the EU’ RECONNECT Deliverable 7.1. Pech, Laurent & Dimitry Kochenov. (2021). ‘Respect for the Rule of Law in the Case Law of the European Court of Justice: A Casebook Overview of Key Judgments since the Portuguese Judges Case’ 2021 (3). https://​www​.sieps​.se/​en/​publications/​2021/​respect​-for​-the​-rule​-of​-law​-in​-the​-case​ -law​-of​-the​-european​-court​-of​-justice/​. Pech, Laurent & Sébastien Platon. (2018). ‘Judicial independence under threat: The Court of Justice to the rescue in the ASJP case,’ Common Market Law Review 55(6) 1827–54. Popravka, Lencka. (2022). ‘The impact of EU identity on constitutional identities – Romanian and Bulgarian Examples,’ Hungarian Journal of Legal Studies 63(1), https://​doi​.org/​10​.1556/​2052​.2022​ .00377. Prokuratura Rejonowa w Mińsku Mazowieckim et al. (2021). CJEU, Opinion of AG Bobek. Orbán, Endre. 2020. Alkotmányos identitás az Európai Unióban [Constitutional Identity in the European Union] Társadalomtudományi Kutatóközpont Jogtudományi Intézet. Rosenfeld, Michel. The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (Routledge, 2009). Sadurski, Wojciech. How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding (Sydney Law School, 2018). Sadurski, Wojciech. Poland’s Constitutional Breakdown (Oxford Scholarship, 2019). Sajó, András. Ruling by Cheating: Governance in Illiberal Democracy (Cambridge University Press, 2021). https://​doi​.org/​10​.1017/​9781108952996. Scheppele, Kim Lane. (2013). ‘The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work: Commentary,’ Governance 26(4): 559–62. https://​doi​.org/​10​.1111/​gove​.12049. Scheppele, Kim Lane et al. (2020). ‘Compromising the Rule of Law While Compromising on the Rule of Law,’ Verfassungsblog: On Matters Constitutional (December). https://​ dx​ .doi​ .org/​ 10​ .17176/​ 20201214​-060045​-0. Selejan-Gutan, Bianca. (2021). ‘A Tale of Primacy Part. II: The Romanian Constitutional Court on a Slippery Slope,’ VerfBlog (18 June 2021), https://​bit​.ly/​3zzjaUa. Swidler, Ann. (1986). ‘Culture in Action: Symbols and Strategies,’ American Sociological Review 51(2): 273–86. https://​doi​.org/​10​.2307/​2095521. Szente, Zoltán. (2016). ‘The Controversial Anti-Migrant Referendum in Hungary Is Invalid,’ Constitutional Change (blog) (11 October 2016). https://​ www​ .constitutional​ -change​ .com/​ the​ -controversial​-anti​-migrant​-referendum​-in​-hungary​-is​-invalid/​. Szente, Zoltán. (2022). ‘Constitutional identity as a normative constitutional concept,’ Hungarian Journal of Legal Studies 63(1): 3–20. DOI: 10.1556/2052.2022.00390. Szwed, Marcin. (2021). ‘What Should and What Will Happen After Xero Flor: The judgement of the ECtHR on the composition of the Polish Constitutional Tribunal,’ VerfBlog (9 May 2021), https://​bit​ .ly/​3Snu9bT. Tamanaha, Brian Z. (2004). On the Rule of Law: History, Politics, Theory, (Cambridge University Press, 2004).

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34. Populist constitutional politics and civil society fundamentalism Paul Blokker

1. INTRODUCTION The emergence of global populism in recent years can be understood as a return of constitutional politics, if by the latter we mean overt political conflict over the meaning of the constitution. Populist forces often criticise existing liberal-constitutional arrangements and frequently take recourse to legal and constitutional means in their attempts – in particular when in government – to institutionalise and constitutionalise alternative, illiberal political projects. The significance of the emergence of populism for constitutionalism becomes clear from what is by now an extensive debate in particular in constitutional theory and comparative constitutional law. In this debate, a normatively oriented approach in the form of a strong anti-populism has become widespread and predominant. Most contributions tend to understand populism as antithetical to constitutional democracy and as undermining judicial institutions.1 Populism is taken to be one of the most important contemporary phenomena leading to the erosion of the idea and fundamentals of constitutionalism. Broadly speaking, the anti-populist approach to populism is grounded in normative and distinctive, deductive understandings of constitutionalism. Liberalism and liberal theory in general and liberal legalism in particular are taken as the unquestionable basis of constitutionalism as an idea and as a political regime. Populism is hence widely considered a clear threat to the core institutions of liberal, constitutional democracy. The seemingly unstoppable march of an internationally oriented, liberal constitutionalism seems have come to a halt with the emergence of populism. This has led to great concern within constitutional scholarship. In much analysis,2 the return of constitutional politics tends to be reduced to a Manichean struggle between political and judicial actors upholding the liberal-legal institutions and the constitutional order, on one hand, and populist counterforces, in particular in the form of political parties and elites, who attempt to capture and (radically) reorient existing institutions, and undermine constitutionalism in the name of the popular will, on the other.3 One way of approaching populism is by following the ‘judicial backlash thesis’, which understands populism as a counterreaction to strong (apex) courts. At the same time, however, it is acknowledged that the confrontation is not only between the prevalence of the rule of law and constitutionalism (law) versus the prevalence of the (majoritarian) popular will (politics), but equally involves different usages (and/or abuses) of the law by populist forces. Indeed, while right-wing populists criticise liberal legalism for the undermining of the popular will, they at 1 See e.g. Dixon (2019); Gárdos-Orosz (2021); Halmai (2018); Landau (2018); Martinico (2021); Müller (2016); Müller (2017); Roznai & Brandes (2020); Scheppele (2018); Thornhill (2020). 2 See e.g. Halmai (2018); Müller (2016); Martinico (2021). 3 cf. Tacik (2020), 22.

634

Populist constitutional politics and civil society fundamentalism  635 the same time use legal institutions and instruments for their own political purposes,4 promote specific campaigns and involve in strategic litigation regarding specific rights (e.g. abortion). Rather than a struggle between law and politics, the populist struggle appears as one about the law itself, its definition, institutionalisation, and application. A major concern in contemporary legal debates is hence legalistic and regards how populism undermines constitutionalism, independent judicial institutions, and the rule of law. In this, the understandings of the law remain largely internal and institutional (the law as a closed system). Populism is understood as the antithesis of constitutionalism.5 The focus is predominantly on judicial institutions, the assault of political forces on such institutions,6 and the increased dysfunctional nature and capture of judicial institutions (by anti-populists often labelled as ‘pseudo‘ or ‘fake’ institutions when captured or reformed by populist forces).7 The argument in this chapter is that a one-sidedly legalistic-institutionalist view – with a distinctive focus on the judicialisation of politics and the independent role of courts – risks being much too narrow to understand the populist phenomenon.8 In addition, the intuition is that the populist threat cannot be resolved merely by means of a legal solution, but needs a broader understanding of the reasons and nature of backlashes, with due attention for the complex relations between juridical, political and societal forces. A comprehensive analysis is to take into account the role of judicialisation and judicial backlash, but equally needs to understand the role of social movements and counter-movements in relation to political and legal institutions9 as well as to international judicial players.10 The suggestion is that to more comprehensively grasp the populist phenomenon we need to shift or broaden our focus to understand the rule of law and constitutionalism in a sociological fashion, that is, as societal phenomena with essential sociological dimensions, and allowing a broader range of actors to become part of the analysis.11 First of all, the contemporary struggle around liberal democracy needs to be understood in principle as a political and social rather than merely a legal struggle (concerning the understanding and definitions of the law).12 The struggle regards not only the position and prerogatives of courts, but is equally related to substantive understandings of equality, pluralism, and rights. Hence, the core issue becomes a political and societal struggle over the core dimensions of democracy, which includes a fundamental conflict regarding the role of law in democracy. Second, the rule of law and constitutionalism involve a dimension of social functionality and of embeddedness, that is, they are not first and foremost legal issues, but are part of the workings of society and the status of distinctive values in society, and need to be understood as such.13 The involvement of cf. Landau (2013); Scheppele (2018); Sadurski (2019). See sources cited in n 1. 6 cf. Sadurski (2019); Kovalčík (2022). See also Chapter 37 by Paul Craig in this volume. 7 Pech & Scheppele (2017); Pech & Platon (2021); Botero, Brinks & Gonzalez-Ocantos (2022); Landau (2013). 8 cf. Botero, Brinks & Gonzalez-Ocantos (2022); Buyse, Fortin, Leyh & J. Fraser (2021). 9 Blokker (2017); Blokker (2019). From a social movement studies perspective, Ruibal underlines the dimensions of political and legal opportunity as well as the legal resources of movements, Ruibal (forthcoming). 10 Ruibal (2022), 89–114; Voeten (2021). 11 Merdzanovic & Nicolaidis (2021). In Chapter 2 of this volume, Martin Krygier makes a strong case for going beyond state-centric approaches in the analysis of the rule of law. 12 Hertogh (2016); Skąpska, (2019); Sajó (2019); Ruibal (forthcoming). 13 Blokker & Thornhill (2017). 4 5

636  Research handbook on the politics of constitutional law civil society and citizens in upholding the rule of law and constitutionalism, and the interaction of civil society with the formal institutions, are fundamental dimensions of the rule of law as such (conceptually identified through notions such as legitimacy and trust). The hampering or break-down of constitutional, rule of law-based democracy, or what is often termed ‘backlash’, hence also becomes an issue of lack of societal anchoring of democratic institutions. Or, put in different terms, democratic backsliding reveals unresolved conflicts over the form and substance of constitutional democracy, which play out not only in formal political and juridical arenas, but equally in struggles in the public sphere and civil society. In this regard, one less discussed issue in the populism, rule of law, and backsliding debate is the striking phenomenon of how conservative civil society organisations contribute to the use (or abuse?) of the law, by engaging in bottom-up initiatives in favour of conservative populist projects of counter-constitutionalism. The sociological approach to populism and constitutional politics can be related to recent discussions in cultural sociology and social movement studies on ‘backlash movements’ and an emphasis on the ambiguity of the civil society concept. As Jeffrey Alexander has argued, civil spheres in democratic societies ‘normally’ include conservative-populist forces, such as in the case of Trumpism in the US.14 As Alexander rightly states, too often social change is understood as progressive, grounded in a broadly understood modernist, evolutionary understanding of our societies. One version of this is the idea that modern democracy is naturally based on a legal-constitutional model, which emphasises strong independent (apex) courts, the upfront role of human rights, and judicialised politics.15 From this perspective, conservative, ‘backlash’ movements and populism as such appear as deviations. In reality, however, civil society has always been based on clashes between ‘frontlash movements’, one the one hand, with ‘visions ahead of their time, whose actions can be likened to provocative and destabilizing, breaching experiments’ and ‘backlash movements’, on the other, which react to the challenges to the status quo and try to undo ‘cosmopolitan widening and civil incorporation’.16 Populism hence needs to be understood not as a ‘democratic deviation, but a naturally occurring dimension of everyday democracy’, while ‘populism is a continuum stretching from the political left to the right, fatal to democracy only at the extremes’.17 The focus in this chapter will be on conservative, populist movements or ‘backlash movements’ in the context of constitutional politics. Backlash movements, mostly of a conservative nature, often aim at reducing public space and societal pluralism. Left populist movements, which in many cases may rather start out as ‘frontlash movements’, with inclusionary and emancipatory agendas, will be less of a focus here.18 In this chapter, the focus will be largely on the European context, and the core case-study will be Poland. Contemporary Poland clearly portrays ongoing and enduring ‘culture wars’ between political, legal and civil society forces, with distinctive relations to the Polish Constitution. Poland constitutes a case of enduring conflict over democracy and its constitutional expressions. The Polish case is surely rather sui Alexander (2019). For a critique, see Tushnet & Bugarič (2021); Loughlin (2022). 16 Alexander (2019), 5. 17 Alexander (2021). 18 That said, it should be recognised that left-wing populism may equally display authoritarian tendencies, and turn into a threatening force for civil society and democracy (the various experiences in Latin America are a case in point). For the case of Bolivia, see McKay & Gonzalo (2021). For a broader comparative analysis, see Ruibal (2022). 14 15

Populist constitutional politics and civil society fundamentalism  637 generis in a number of ways (a post-communist society, a strong role of the Catholic church, the historical experience of disappearance of statehood), but the claim is that, in specific respects, by studying conservative movements and forces in Poland, we can obtain insights that have wider global relevance (and in some ways resemble developments and phenomena in other societies such as Chile, Argentina, Brazil, or the US). Such matters include the irreducible role of conservative and populist forces in democratic politics (in post-conflict and transitional societies as well as in more established democracies), the interrelation between domestic conservative forces and the Global Right, and the intrinsically conflictive nature of constitutional politics in democratic societies.19 The chapter will discuss constitutional politics in sociological terms. First, I will briefly discuss the notion of constitutional politics, and will opt for a broader, sociological perspective. I will subsequently elaborate a sociology of constitutional politics, in which conflict will play an important role. Second, I will relate structural conflict over constitutional dimensions of society to the phenomenon of populism. Third, constitutional politics with a significant role of societal forces (in particular counter- or backlash movements) will be discussed in an emblematic case-study, the case of post-1989 Poland. Fourth, I will conclude by stressing the importance of a broad sociological approach to constitutional politics, which stresses the interaction between formal institutions and larger society, in the upholding, as well as in the undermining, of liberal democracy and the rule of law.

2.

CONSTITUTIONAL POLITICS: A SOCIOLOGICAL APPROACH

In the literature, constitutional politics is defined in a variety of ways.20 One approach focusses on the role of judicial institutions (courts, in particular apex courts) and the relation between such institutions, and politics and legislative practices. Attention is paid to forms of judicial activism and depoliticisation.21 The role of constitutional courts and constitutional review is central to this approach. In this understanding, constitutional politics is largely ‘court politics’. A second approach is interested predominantly in (political) processes of constitutional change and amendment, the ‘politics of constitutional lawmaking’, frequently from a comparative perspective.22 The emphasis here is not least on the role of political actors in engaging in projects of constitutional amendment and change. Additionally, there is an important interest 19 Various global cases might provide fruitful comparison with regard to the role of illiberal, conservative and religious movements in constitutional politics (which I cannot, however, extensively pursue in this chapter). European cases abound, such as with regard to constitutional referenda on marriage and gay rights (for the case of Croatia, see Glaurdić & Vuković (2016); for the case of Romania, see Margarit (2019). Various Asian examples of the role of uncivil society in fledgling democracies are discussed by Kingston (2022), 175–94 (discussing Myanmar, Indonesia, Bangladesh, and Sri Lanka). The recent constitutional changes and politics in Chile equally show a stand-off between ‘frontlash’ and ‘backlash’ forces (see Vergara (2022); cf. Piscopo & Slavelis (2022). Ruibal provides an excellent discussion of ‘countermovements’ and judicial backlash in the Latin American context, Ruibal (2022). An obvious case is Trumpian and post-Trumpian politics in the US, cf. Alexander (2019, 2021). Many of the conservative movements can in turn be related to the Global Right (cf. Varga & Buzogány (2021). 20 cf. Castiglione & Schönlau (2007). 21 cf. Stone Sweet (2008). 22 cf. Arato (2012); Anders & Lorenz (2021); Partlett & Nwokora (2019).

638  Research handbook on the politics of constitutional law in modalities and procedures of constitutional reform, such as in the form of conventions, assemblies, or parliamentary commissions, and what kind of actors, potentially including citizens, might be involved in such processes23 (Arato 2012; Abat i Ninet 2021). A third approach is equally interested in the broad process of constitutional change and conflict, but takes a less formal-institutional and more societal and sociological approach to constitutionalism, emphasising in particular social forces such as social movements in engaging in constitutional claims-making, mobilisation, and action.24 In this chapter, constitutional politics will be understood in the third – broadly sociological fashion – sense, putting emphasis on the dimension of an ongoing (constituent) struggle between diverse human beings and groups over definitions of the polity. In many societies, constitutional politics appears more important in recent times, due to a number of tendencies. Significant dynamics result from the judicialisation of politics and the growth of international judicial regimes. An increased importance of norms with constitutional status beyond the state, on the inter- and transnational level, may enhance the conflictual nature of constitutional politics within the classical state.25 One dimension of such conflict involves the rise of populist forces, as is one factor among others in a broader rejection of international norms and institutions, sometimes referred to as a ‘backlash’. In a related way, we may be observing a kind of ‘constitutional acceleration’ in various constitutional polities, in part due to processes of globalisation and regional integration, but also due to specific domestic factors.26 Distinctive cases are post-conflict and post-authoritarian societies, where constitutional conflict and reform may be the result of ongoing dispute over the nature of democratic transformation. In general, ‘constitutional acceleration’ regards an increased recourse to the instrument of constitutional reform, more and more also in areas where this was not the case before, such as the economy or social policy.27 A related trend might be one of ‘constitutional instrumentalism’, which entails the ‘down-grading of (comprehensive) constitutional reform to an instance of doing politics as usual, often serving narrow majoritarian or partisan objectives rather than the common good, or worse, abusing constitutional reform for illiberal or non-democratic purposes’.28 Populist political actors and societal movements as constitutionally relevant actors should be understood in the context of a broader set of structural changes affecting modern democracies. The liberal democracy which was portrayed as the end point of history in the 1990s, in reality entered an era of a great turmoil and uncertainty. The level of contestedness of constitutional orders has increased in this period, partially for the reasons mentioned above. Contestation involves a variety of actors. Populist forces can clearly be counted among the critical forces vis-à-vis liberal democracy, but behave differently, in part depending on their role within a domestic democratic reality.29 Populist movements and movement-parties might contest Arato (2012); Abat i Ninet (2021). cf. Blokker (2017); Blokker (2020); Bui (2018); Bui (2020). 25 A well-known example of this conflictuality is the domestic debate in the United Kingdom on the status of European and international norms, which inter alia informed the ‘Leave’ vote in the Brexit referendum, held on 23 June 2016. In a different, but equally ‘sovereignist’ manner, the current governments of Hungary and Poland display an open distrust towards European and international norms. 26 cf. Blokker (2017). 27 Palermo (2007); cf. Blokker (2017). 28 Landau (2013). 29 Arato & Cohen (2021). 23 24

Populist constitutional politics and civil society fundamentalism  639 the status quo but have relatively little structural impact. Populists-in-government, however, may have a much more enduring effect on constitutional orders. And populists-in-government in part attempt to not only change the formal-institutional dimension of liberal democracy but equally to redefine societal dimensions, by prioritising and promoting specific civil society forces over others, and by attempting to ‘reformat’ the structure of civil society. Populism-in-government is closely related to specific configurations of civil society, including forces explicitly supporting government and those strongly contesting and resisting. In Figure 34.1, a range of various (institutional and societal) actors are indicated, as well as the various layers of relevance (international legal regimes, such as the EU or the European Convention of Human Rights and international courts, such as the European Court of Human Rights or the Inter-American Court of Human Rights30). What is important for our discussion here are in particular the relations – and potential conflicts – between various actors and dimensions: (populist) governments and international legal regimes; (populist) governments versus liberal civil society; (populist) governments vis-à-vis courts; (populist) governments vis-à-vis the opposition; (populist) governments and illiberal, conservative civil society; liberal civil society versus illiberal civil society; liberal civil society or illiberal civil society vis-à-vis international legal regimes.

Source: Own elaboration.

Figure 34.1

Actors and dimensions of constitutional politics

The complexity of constitutional politics calls for a comprehensive, political/legal/sociological analysis, which also takes into account external norms and templates (for instance, those of the EU, the European Convention of Human Rights, the Inter-American Human Rights system, or the UN Human Rights Committee), transnational networks, and a perceived gap between collective, domestic self-government and universalistic rights templates, and in some cases, a critique of liberal constitutional and rule of law ideas as such. A struggle over domestic and external norms, as well as over the interpretation of human rights and constitutionalism plays

30

See Voeten (2021).

640  Research handbook on the politics of constitutional law out between political and juridical forces, as is well-documented in particular with regard to the cases of Hungary and Poland. But such a struggle equally includes societal dimensions, which an interdisciplinary, sociologically informed (and comparative) approach is well-placed to shed important light on. A sociological approach to constitutional politics builds on a number of debates, including that of democratic or popular constitutionalism, socio-legal and political-scientific studies of legal mobilisation, the wider political-sociological literature on social movements, and also critical feminist studies. But most of all the approach taken here is related to the burgeoning sociology of constitutions.31 An important and long-standing debate on the relation between constitutions, institutions, and wider society is that of popular and democratic constitutionalism. These approaches have been predominantly developed in the North American context,32 but at the same time important lessons can be learned for other, including the European, experiences. Popular constitutionalism squarely focuses on the role of society in relation to constitutionalism. This includes the role of popular mobilisation, social movements, and public opinion in relation to courts, constitutions, and constitutional change.33 Popular constitutionalism attempts to generate knowledge on how, in what forms, and under what conditions society and social movements contribute to social, political and legal/constitutional change. A popular-constitutional focus helps to move the attention towards a variety of relevant ‘constitutional subjects’ and towards the question of how non-legal actors focus on constitutional norms in their claim-making and action. This view builds on Levinson's idea of ‘constitutional protestantism’; that is, the idea that no actor has a monopoly on the meaning of the constitution(s), and the insight that a multiplicity of visions and (competing) views is often available.34 It is of significance to observe that within debates on populism and constitutionalism, popular constitutionalism has been discussed as being different from, but also as having some affinities with populism in terms of a critique on liberal-legalistic perceptions of constitutionalism.35 A second disciplinary area is that of the studies of civil society and social movements, which is generally neither focused on law, nor on legal or constitutional claims or practices made by civil society actors. Until recently, studies that relate social movements to constitutional politics, the legitimacy of constitutional regimes, or to constitutional claims have been few. Those studies that do exist are largely theoretical or focus largely on litigation, and frequently on specific rights and issues (women’s rights, environmental rights), but less so on the wider public influence of social movements in terms of constitutional claims and action. In a number of contributions, Son has elaborated in societal mobilisation around the constitution in authoritarian societies.36 I have discussed the relation between social movements and constitution-making processes, constitutional claims-making, mobilisation, and resistance in democratic and backsliding states.37 In her recent book, Donatella della Porta provides a good summary of these discussions. Constitutions may be understood as part of the ‘political oppor-

33 34 35 36 37 31 32

Thornhill (2011); Thornhill (2017); Blokker & Thornhill (2017). NeJaime (2013); Post & Siegel (2009); Guinier (2009); Tushnet (2000). See e.g. Ackerman (1991). Levinson (1988). Corso (2014); Corrias (2016); Kaidatzis (2022); Tushnet & Bugarič (2021). Bui (2020). Blokker (2013); Blokker (2020).

Populist constitutional politics and civil society fundamentalism  641 tunity structures’ of social movements, while progressive social movements explicitly aim at promoting more democratic constitutions and contribute to creating constitutional moments.38 A separate area of studies that should be noted is that of feminist studies, feminist constitutionalism, and the ‘gender and constitutionalism’ debates.39 The critical dimension of feminist constitutionalism means that it is naturally interested in issues of societal struggle, forms of meaning-giving, as well as discursive and practical contestation. Gender approaches focus in particular on how social and legal mobilisation influences and transforms constitutional norms and practices in terms of gender equality, but its critical thrust clearly has wider relevance too. Anagnostou, for instance, has researched ‘constitutional opportunity structures’ that may create opportunities or openings for mobilisation and influence, and has explored how jurisprudence, constitutional norms, and social and political mobilisation interact.40 The feminist approach is at the forefront of research on backlashes, as the latter frequently involve issues of sexual and reproductive rights, gender, and the status of the family and women in society.41 This chapter is in particular grounded in the recently emerged sociology of constitutions42 which inspires a comprehensive and multi-faceted analysis of constitutional politics. A distinctive angle in this approach is provided by a political-sociological, conflict-oriented approach to society, social movements, human rights and constitutionalism. The weight in the analysis lies in the interaction between civil society, social movements, courts, institutions, and political elites/parties, and their distinctive perspectives and understandings of law.43 Constitutional theory and comparative constitutional law generally do not address the social, conflictual, and symbolic dimensions of constitutions, while socio-legal analysis proper has to a large extent been rather indifferent to constitutional law.44 A political sociology fills a scholarly gap by emphasising that constitutions and constitutionalisation need to be understood in their dynamic social context. The political sociology of constitutions and constitutionalism consists hence in an approach that puts conflict at the forefront (in contrast to the status quo orientation in much of constitutional studies). It builds on and tries to combine the various disciplinary foci discussed, and explores a variety of ways in which civil society and social movements interact with courts, political institutions, thinks tanks, wider society, but also international networks and institutions, while paying attention to the distinctive role that forms of meaning-giving and narratives play in legal and constitutional mobilisation. While much of the literature on populism and constitutionalism focusses on populist governments and actors, on one hand, and judicial actors (courts in particular) on the other, a political-sociological approach identifies a broader range of relevant actors. The academic analysis of constitutions, their interpretation, and their functioning, needs to move beyond a narrow focus on judicial institutions. Analysis ought to include political institutions as well as (organised) civil society.45 Judicial actors hardly ever operate without investing in politics in Della Porta (2020), 24. Baines & Rubio-Marín (2005); Baines, Barak-Erez & Kahana (2012); Brodeala & Şuteu (2019); Irving (2009); Irving (2017); Williams (2009); Gloppen (2021). 40 Anagnostou (2017). 41 See Ruibal (2022; forthcoming); Gloppen (2021). 42 Thornhill (2011); Blokker & Thornhill (2017). 43 Blokker (n 26); Klug (2017); Kowalewska (2020) Skąpska (2019); Vorländer (2017). 44 Thornhill & Christodoulidis (2014). 45 NeJaime (2013). 38 39

642  Research handbook on the politics of constitutional law some way,46 and they respond to or are influenced by societal actors or social change. The sociological dimension consists in the idea that a constitution cannot be understood from a purely legal angle, but that it is embedded in a ‘constitutional culture’, i.e., a ‘larger community-wide discourse that includes judicial and nonjudicial actors, a mixture of legal norms and actions, and a wide range of interpretive expression’.47 In this, populism is not only about a struggle between the populist forces against judicial institutions, but evidently involves forms of popular mobilisation and the formation of movements48 as well as the mobilisation of intellectual and professional forces (such as think tanks and epistemic networks). Clearly, then, judicial actors, in particular apex courts, have constitutional relevance, but so do political actors (including in the guise of populist ‘abusers’), as do societal actors. In the latter case, civil society may mobilise in resistance to backsliding and illiberalism,49 but it may equally develop forms of illiberal and pro-populist mobilisation. The latter is sometimes referred to as ‘uncivil society’, when understood as ‘manifestations of civil society that challenge liberal democratic values’.50 What is important here is that both liberal and illiberal civil society engage in forms of constitutional mobilisation and claims-making, and seek to influence existing constitutional orders.

3.

CONSTITUTIONAL CONFLICT AND POPULISM

A key struggle in currently polarised democratic societies is between pro- and illiberal forces, or between civil society and what some authors call ‘uncivil society’, ‘uncivil civil society’,51 or ‘backlash movements’.52 The latter expresses a strong critique of an open, pluralistic public sphere, denounced by illiberal forces as serving the specific interests of liberal groups. Backlash movements particularly contest sexual reproductive rights and what is labeled ‘gender ideology’. Both sides – the liberal and illiberal civil societies – tend to contribute to a further polarisation of democratic society by taking irreconcilable positions (pro- or against populism). The current struggles by liberal and illiberal forces over the political centre of democratic systems can be understood from within the wider framework of modernity and the emergence of modern democracy as a political framework which allows for the emergence of a plurality of propositions of how to order society.53 In some ways, radical positions of populist forces resemble historical fundamentalist positions, with anti-modern and anti-Enlightenment traits. In some of the conservative populist positions (as in Hungary and Poland), the idea of the perfectibility of man is not accepted, and the position is that a traditional order and hierarchy takes precedence over individuals. The emphasis is on specific ethno-cultural communities, their right to self-determination in order to safeguard cultural specificities. Such a conservative-populist stance also frequently includes a submission of society to higher, reli 48 49 50 51 52 53 46 47

Dezalay & Garth (2011). Gewirtzman (2004), at 899. cf. Arato and Cohen (2021). cf. Grabowska-Moroz & Śniadach (2021). Glasius (2010); Ruzza (2009). Glasius (2010); Ramet (2017); Ruzza (2009). Della Porta (2020). Eisenstadt (1998). cf. Alexander (2019; 2021).

Populist constitutional politics and civil society fundamentalism  643 gious commandments, rather than to the premises of reason. Hence, the conservative-populist emphasis on communitarian, local understandings of law is embedded in a transcendental view of ‘natural law’, taking the form of a moral understanding of law.54 The conservative-populist project is therefore not only about protecting traditional, cultural values and ways of life, of which a local understanding and historical, longue durée idea of the creation of law is part. It equally involves a Jacobin component, that is, the attempt to mobilise wider parts of society for the project of a reconstruction of society on the basis of conservative-religious ideas.55 The attempt is clearly to take hold of the political centre so as to institutionalise the conservative-populist project. The activist, mobilising side of the populist-conservative project brings the constituent and constitutional dimensions into the picture. The top-down, formal political side of populist political action is well-covered in the literature, in terms of ‘abusive constitutionalism’56, ‘autocratic legalism’57, and ‘anti-constitutional populism’.58 The bottom-up, societal dimension of constitutional politics is however much less discussed. The discussion of populism and constitutionalism would be well-served by a broader investigation into how (un-)civil society forces are part of the struggle and engages in constitutional politics. Societal struggles over the law include contrasting interpretations of (constitutional) law and the rule of law as a guiding concept of the political and legal system. A key contrast is between an understanding of law as ‘moral laws’, that is, law as virtually unchangeable and as grounded in extra-societal principles (‘transcendentalism’), on the one hand, and law as the ‘rules of the game’, that is, as created by political actors/majorities (‘conventionalism’), on the other.59 Much of the populist assault on liberal constitutionalism and the liberal rule of law is an attempt of ‘demoralising’ legal categories that have been presented, in particular in the late twentieth century, as higher principles and as without any alternative. Populists attempt to unmask the myth of liberal constitutionalism and the rule of law as moral law, and to expose it as mere rule of the game. This also means that struggles between liberal and illiberal forces importantly include transnational dimensions. Domestic constitutional politics equally involves specific political positions on transnational juridical regimes and institutions, as either essential underpinnings of domestic democratic and constitutional orders, grounded in universalist norms (as moral law), or, in contrast, as undermining domestic orders and as threatening age-old local legal conventions. Whereas in recent decades there has been a clear domination of liberal ideas and institutions on the international, claiming universal standing, such a domination is now strongly criticised by populist forces. While the latter often invoke national sovereignty and domestic conventions, this does not mean that the populist ‘counterrevolution’ does not invoke a universal dimension in its own right. The global conservative right even mobilises on the transnational level to promote natural law as an alternative to liberal legalism. The emphasis is on ‘common moral principles compliant with “natural law” understood as religious law originating directly

56 57 58 59 54 55

Bucholc (2020) Great Coalition for Equality and Choice (2020). Buzogány & Varga (2021). Landau (2013). Scheppele (2018). Sadurski (2019). Bucholc (2020), 65.

644  Research handbook on the politics of constitutional law from God’.60 In the table below, I identify contrasting visions of liberal and illiberal forces on domestic and supranational legal orders. Table 34.1

Contrasting interpretations of legal orders

 

Legal liberalism

Populism

National order

International embeddedness and

Self-standing domestic constitutional polity

permeability of domestic constitutional polities Supranational order

Higher expression of principles of rule of

Inter-national interaction sovereign states;

law and constitutionalism

transnational adherence to Christian

Liberal political actors; transnational

Populist-conservative political actors; ‘captured’

institutions (e.g. CJEU; EctHR, IACHR);

national judicial institutions; think tanks,

think tanks, judicial associations; organised

(transnational) organised uncivil society.

understandings of natural law Relevant actors

civil society.

Source: Own elaboration.

In sum, this chapter suggests that we need to understand the relation between populism and constitutionalism as part of an ongoing struggle in democratic societies about the definition of the polity and its identity, and the role of law in this. The suggestion is that we need to analyse the complex and ongoing political societal struggles around constitutions, constitutional norms and constitutional identity that we witness in many democratic societies. Such struggles not only suggest that liberal democracy has not been as triumphant as it was strongly suggested in the 1990s (as often expressed in the notion of ‘liberal consensus’), but also that in democratic societies the final definition of the polity and its ground rules remains open to contestation. In this sense, the constitutional struggle is part of the ongoing struggle over modernity, the role of reason, of culture, and religion in modern societies.61

4.

POPULIST CONSTITUTIONALISM FROM BELOW: THE CASE OF POLAND

The Polish experience with constitution-making and constitutional politics since 1989 provides a rich terrain for the analysis of the role of societal forces in constitutional politics. A significant dimension of constitutional politics is about the relation between courts and political institutions (a manifest point of attention in scholarly and political debates on judicial activism). The Polish political experiences since October 2015, when the conservative populist party Law and Justice came to power, show the court-politics struggle to be central.62 It should however not be overlooked that this struggle is an intrinsic part of a much broader struggle over the nature of the post-communist democratic regime that emerged since 1989. The term backlash is misplaced in one specific respect, that is, it tends to indicate a clear rupture between a liberal and an illiberal political project. As a matter of fact, however, the Great Coalition for Equality and Choice (2020), 7. cf. Eisenstadt (1998); Bucholc (2020). 62 Sadurski (2019). 60 61

Populist constitutional politics and civil society fundamentalism  645 struggle between liberal and illiberal forces has been part and parcel of regime change from the early 1990s onwards. A sociology of constitutional politics that puts into relief the role of societal forces in this struggle significantly helps to provide a more comprehensive picture of the Polish constitutional predicament. The Polish case is rich in the forms of legal mobilisation conservative forces have engaged in since the start of the process of democratisation in 1989. As we will see, in the 1990s, the dominant form was engagement in the constituent process of constitution-making. In more recent times, in particular since the coming to power of the conservative-populist government in 2015, but also already before, conservative civil society engages in social mobilisation, strategic litigation (in particular regarding sexual and reproductive rights), involvement in the legislative process, as well as international coalition-building with forces of the Global Conservative Right. 4.1

Constituent Dimension: The Struggle over the Polish Constitution

Despite many acclamations of the ‘end of transition’ and ‘democratic consolidation’, the post-1989 liberal-constitutional projects in East-Central Europe did not necessarily produce constitutional stability and consolidated and pacified societies.63 In the case of Poland, the adoption of the 1997 Constitution can hardly be understood as a ‘constitutional moment’, if understood as the creation of a widely shared, societally legitimate, and uncontested constitutional framework for Polish democracy. The Polish trajectory of democratisation involved ongoing struggles over the interpretation of the constitutional order, described by Emilia Kowalewska as ‘competing constitutionalisms’.64 The protractible meta-conflict regards distinctive procedural, regulatory, and institutional dimensions (not least with regard to core institutions of liberal democracy, such as the Constitutional Tribunal and the Supreme Court), but equally regards the symbolic and value-based dimensions of definitions of the political community, commonality, and identity. As argued by sociological analysts of constitutions, constitutional politics is also about the constitution as a symbol (which in itself comprises instrumental and value-based dimensions and their specific relations and interactions).65 The drafting and adoption of the Polish Constitution of 1997 consisted in fact of a ‘cultural war’. As George Sanford has remarked, the Polish constitution-making process in the 1990s was ‘incredibly prolonged and torturous’ (Sanford 2002, 79). The difficulties existed in the lack of consensus between prominent political groups about the constitution’s contents (in relation to such matters as religion and human rights) as well as about the overall role and standing of the Constitution (as constituting a deep rupture with the preceding order or as a negotiated compromise). In Robert Brier’s terms, the 1990s saw a ‘constitutional dispute’ which needs to be ‘understood as a symbolic struggle over the cultural hegemony in the [post-1989] Third Republic’.66

65 66 63 64

De Raadt (2009). Kowalewska (2020). Vorländer (2017); Blokker (2017). Brier (2006), 112.

646  Research handbook on the politics of constitutional law The 1997 Polish Constitution has often been portrayed as a product of political compromise.67 Such a pragmatic approach towards a constitutional compromise followed the ‘moderate-liberal’ spirit of the dissidents who had engaged in the Roundtable Talks. The Talks had put emphasis on a pragmatic form of negotiations with the Communist Party elite as well as on evolutionary change, rather than a revolutionary attempt at radical change.68 In the constitutional discourse from the early 1990s onwards, compromise became represented as a core democratic value, without which democracy could not be built and which could provide a legitimatory basis for the new Polish democratic system.69 In the parliamentary debates, the notions of ‘compromise’ and ‘synthesis’ were often expressed, also to claim a broad societal basis for the constitutional document.70 The governmental forces equally asserted that the so-called ‘Citizens’ Draft’, an alternative, societal draft constitution, written by extra-parliamentary, centre-right oppositional forces, was taken into account in the drafting of the official constitution.71 The latter forces, however, understood the notion of compromise in a wholly different sense, that is, as a ‘rotten compromise’ or a betrayal of the revolution whose purpose it was to create a clear break with the communist past.72 In their view, the four parties that drafted the official parliamentary constitutional draft in the mid-1990s did not represent the Polish people in its entirety, as they represented only the left-liberal part of the electorate, leaving some 30 per cent of the right, conservative electorate external to the constitution-making exercise. As a matter of fact, the formal parliamentary constitutional draft was challenged by an extra-parliamentary, societal draft. The importance of competing constitutionalisms in the Polish case becomes indeed clear from the fact that the formal constitution-making procedure, producing a formal parliamentary draft largely promoting a liberal-democratic position, was paralleled73 by a grass-roots, civil society-created ‘Citizens’ Draft’ (Obywatelski Projekt Konstytucji Solidarnośći), produced by the conservative forces, later gathered in the Solidarity Electoral Action party (AWS). The latter united a range of conservative forces coming from the right wing of the 1980s Solidarność trade union movement. This ‘civic’ counter-project was formulated early on in the transition. It was initiated by a group of people gathered in the so-called Kosarzyski Club, which in the 1980s predominantly debated social and philosophical matters, but in the 1990s started to address matters of a new constitution for Poland. Its efforts led to the formation of the ‘Social Constitutional Commission’ (Społeczna Komisja Konstytucyjna), which started working on a draft parallel to the official parliamentary one.74 A key figure was conservative politician and chairman of Solidarność,

67 For instance, Wyrzykowski understood the Constitution as a ‘constitutional compromise’ between secularised, civic-liberal forces, such as the Freedom Union, and socialist forces, i.e., the post-communist Alliance of the Democratic Left, Wyrzykowski (1999); cf. Herold (2013). 68 Herold (2013), 488. 69 Herold (2013), 489. 70 Herold (2013); Brier (2006). 71 Herold (2013), 490. 72 Brier (2006); Curanović (2021). 73 The existing constitutional framework at the time, that is, the 1992 constitutional act (amended in 1994), allowed for the presentation of societal constitutional drafts, which needed a minimum of 500,000 signatures to be eligible (Kowalewska 2020, 917). 74 Kowalewska (2020), 916–17; Hałas (2005).

Populist constitutional politics and civil society fundamentalism  647 Marian Krzaklewski75 who coordinated the alternative constitutional initiative as president of the Social Constitutional Commission. The Commission devised a separate draft as early as 1993, which was to reflect the ‘values and ideas of the 35 per cent of the population, which was excluded from the official “constitutional coalition”’.76 Krzaklewski argued that the constitutional text could not be ‘accidental, it cannot reflect momentary [bieżących] political agreements, it has to be the permanent work of the nation. The constitution has to be based on a moral and ethical foundation, on a clear vision of the human person and of society’.77 The draft followed in a way the traditional logic of the Solidarność movement in the 1980s, pitting ‘us vs. them’, or society against the authorities, and questioned the legitimacy of the parliamentary coalition in a political-cultural sense. It questioned whether the official project represented national tradition, religion, culture and identity, and the actual will of the people. As claimed by Krzaklewski in a speech in the National Assembly, Does the National Assembly of the 1997 parliament really want to go down in Polish history as the National Assembly which after one thousand years of the existence of a Christian Poland threw God out of the constitution?78

Significantly, the alternative, societal constitutional draft reflected ideas of Christianity, patriotic and national values, as well as social values.79 In other words, its symbolism was deeply grounded in a collectivist understanding of society, emphasising axiological and identitarian dimensions, in which individuals were understood as always already part of a common project with historical, religious, and cultural overtones. In Brier’s words, the right-wing conservative forces put forward a nationalist and religious ‘master narrative’, which emphasised ‘Catholicism as an indispensable part of the identity of Polish society’, understood the democratic model created by the constitution as a political community grounded in a distinctive culture, and prioritised the idea that the ‘Constitution needs to express national values’.80 Maik Herold and Solongo Wandan have interpreted the successful mobilisation around the Citizens’ Draft81 and its influence on the constitution-making process as revealing the existence of an ‘alternative constitutional subject’. They indicate, in this, separate, conflicting visions on the symbolic nature of the constitution, as either a unifying and pacifying force between a plurality of societal groups or rather as the confirmation of a distinctive, historical, conservative and homogeneous understanding of Polish society. As mentioned, to promote the latter understanding, the right-wing coalition Electoral Action Solidarity (AWS) mobilised a range of small right-wing parties against the existing left-liberal constitutional coalition and the ‘prospect that Poland’s new constitution would be adopted by a parliament dominated by the SLD [the post-communists]’.82 The historian Brier, who has

75 Krzaklewski had been member of Solidarity since 1980 and in 1989 became a member of its National Executive Committee. 76 Herold & Wandan (2014), 273. 77 Cited in Brier (2006), 114. cf. Herold & Wandan (2014), 279. 78 Cited in Brier (2006), 126. 79 Kowalewska (2020), 917–18. 80 Brier (2006), 144. 81 In May 1994, ca. 900.000 signatures had been gathered for the citizens’ draft. See Herold & Wandan (2014), 275. 82 Brier (2006), 9.

648  Research handbook on the politics of constitutional law engaged in a comprehensive historical study of post-1989 constitution-making in Poland, has argued that the ‘framing process was accompanied by an extraordinarily bitter and aggressive dispute. Especially when this process reached its decisive stage between 1993 and 1997, the constitutional issue polarised Poland’s political scene in an ever more ferocious debate’ (Brier 2006, 7). As Brier recalls, at the time of the finalisation of the draft of the formal constitution, a ‘reporter of one of the country’s leading daily newspapers [Rzeczpospolita] saw the political scene characterised by “a complete bipolarity”’ and one side [the Social-Democrats, SLD] unanimously convinces the citizens that this constitution is the best that could happen to us because otherwise we would be left with the Stalinist constitution from 1952. The other [the AWS], however, calls the constitutional compromise national treason [targowica] and perceives the constitution as a threat to our social life and national identity.83

Major dimensions of the conflict about the constitution regarded not so much electoral matters or the most adequate way of framing rights, but rather ‘cultural or symbolic issues’, such as the role of religion (in particular with regard to an Invocatio Dei) or the content of national traditions to be reflected in the preamble.84 Indeed, in Brier’s view, the ‘debate’s two main participants – the SLD and the AWS – used these symbols to cast the constitutional dispute as a confrontation between two mutually exclusive value systems and collective identities’.85 The debate was much less concerned with constitutional particulars, and rather a form of meta-politics about the nature of the political community (as a pluralist, liberal democratic community or rather a ‘Catholic nation’). The constitution-making process hence failed to include all relevant political and social actors, in that the parliamentary constitution-making process (1994–1997) was driven by post-communist and centre-right forces, but excluded the sizeable nationalist, religious right, which claimed to continue the tradition of Solidarnosc. Indeed, Krzaklewski strongly argued against the draft constitution as violating the convictions of larger part of society,86 while others denounced the particularist, interest-based nature of the document and its reflection of a singular ideological orientation. Centre-right forces regarded the final as the outcome of a political deal between secularised, civic-liberal forces and socialist forces, constitutional rather than as reflecting a society-wide, inclusive compromise. This was somehow corroborated by the confirmatory referendum held in 1997, as the Constitution was only endorsed by 53.5 per cent of the voters, while the overall voter turnout was just 42.9 per cent. This meant de facto that 22.58 per cent of Polish eligible voters voted in favour.87 4.2

Countermovement: the Conservative Revolution

The 1997 Constitution hence became the formal constitutional order but was not uncontested. This became already clear in the first government of the Law and Justice party (PiS) (2005–2007), a political party emerging from the conservative-right milieu of Electoral Action Solidarnosc (AWS). But the conservative political project, which is highly skeptical towards 85 86 87 83 84

Brier (2006), 9. Brier (2006), 10; Hałas (2005). Brier (2006), 10. Brier (2006), 65. cf. Skąpska (2019).

Populist constitutional politics and civil society fundamentalism  649 the 1997 Constitution, found its most forceful expression in the second PiS government (2015-). The conservative and illiberal project of PiS takes as its counter-image the ‘Third Republic’, that is, the liberal-democratic, Europeanist, and pluralist project of the post-1989 years. As is widely discussed in the literature, a prominent focus of the PiS project has been the Constitutional Tribunal, other judicial institutions (including the Supreme Court), and the judiciary at large (understood as unreformed since communism). PiS has in this emphasised the relation between politics (political majority, government) and the law, and defended a distinctive Polish constitutional identity.88 An additional core dimension consists in PiS’ anti-pluralist approach towards society and the public sphere, involving both civil society and the media. PiS contests the validity of different voices in society, and presents centre-left concerns (with human rights, women’s rights, gender equality, environmental concerns) as contrary to the nation’s interest. The role of civil society is a striking dimension of the illiberal, counterrevolutionary trend in Poland, and one that has only very recently become object of discussion.89 Generally, studies of post-communist transformation have emphasised an understanding of civil society as a fundamental underpinning of liberal democracy, due to civil society’s opposition to the communist regimes as well as due to its being a key force in driving forward the process of political, social, cultural and economic transformation. Until recently, however, little attention has been paid to grassroots forms of mobilisation that are critical of liberal democracy or to civil society forces that promote alternative, conservative and illiberal projects. As discussed above, already in the protracted constitution-making process of the 1990s, extra-parliamentary, societal forces were a significant part of constitutional politics. Their (alleged) exclusion from the constitution-making project is one significant part of the resentment of the conservative right, which has fed into the idea of the need for a Fourth Republic. The conservative project has indeed become centre-stage with the PiS government, in power since late 2015. Part of the conservative project is about supporting loyal forces in civil society. At the same time, however, it should be acknowledged that a relatively independent conservative civil society has developed over the years, largely from the bottom up. The latter has frequently taken the form of a reaction to manifestations of civil society that are largely ‘liberal’, pro-human rights and pro-European integration. In the words of Gregorz Ekiert, a renowned expert on Polish civil society: [S]ince the early 2000s, Polish civil society has experienced increasing organizational and ideological pillarization as a result of the emergence and institutionalization of far-right, conservative, nationalistic, anti-liberal and religion-based networks of organizations. They have their own national and local media, social networks, symbolic frames of reference, political narratives and resources provided by the Catholic Church, right-wing political parties, conservative foundations and individuals, and

Sadurski (2019). Various instances of this conservative trend can be found throughout Europe (e.g. Croatia, Italy, the Netherlands, Romania, Slovakia, Slovenia) as well as globally (for Latin America, see Ruibal (n 10); Gloppen (n 39)). Hungary is often discussed together with the Polish case, as a case of illiberal democracy and backsliding. The role of conservative forces in post-communist transformation is now increasingly acknowledged, see the forthcoming special issue on illiberalism in European Politics and Societies, R. Coman, V. Behr and J. Beyer, ‘The shaping power of anti-liberal ideas’, Online First, available at https://​www​.tandfonline​.com/​doi/​full/​10​.1080/​23745118​.2021​.1956244; Bluhm & Varga (2019). 88 89

650  Research handbook on the politics of constitutional law increasingly by the Polish state after it was taken over by the Law and Justice Party (PiS) following its win in the 2015 elections.90

In the view of Ekiert, the ‘illiberal, nationalistic pillar of civil society was a late arrival in the development of civil society in Poland’, but by the late 1990s, it became an increasingly important factor in Polish politics. As Ekiert further argues, the ‘debate and referendum on the Polish constitution in 1997 became a pivotal moment that galvanised anti-liberal and anti-European forces and movements in support of traditional values, Polish Catholicism and nationalism’. A second key moment was the first PiS government in 2005–2007, which consisted in an alliance of PiS with two rightwing parties, the Eurosceptic ‘League of Polish Families’ (LPR) and ‘Self-Defence of the Republic of Poland’ (SRP). 4.3

Backlash Movement: Ordo Iuris

Since the second government of PiS, government action towards civil society has increasingly seen PiS’ active support for conservative groupings and organisations. One notable example, of great relevance for our discussions here, is that of Ordo Iuris. Ordo Iuris is a Polish non-governmental, organised civil society foundation or think tank. As a non-governmental, organised civil society foundation, it has become increasingly linked with the PiS government, but it emerged independently in 2013, and engages in a range of independent activities, notably also on the international level.91 According to one source, Ordo Iuris is an ‘extremist religious organisation’.92 In fact, Ordo Iuris can be seen as part of the Global Conservative Right, seeking to influence politics by means of lobbying, consultancy and other political activities,93 but most importantly through forms of ‘lawfare from below’.94 Ordo Iuris’ actions have had a significant effect in various political and legal domains, inter alia, by promoting anti-abortion legislation, by advising authorities to leave the Istanbul Convention violence against women, by contributing to legislation with the scope to criminalise sexuality education.95 An important part of how it understands its own role regards the defence of the Polish Constitutional order (stressing a conservative, religious reading): Every day people are confronted with various radical ideologies that aggressively question the existing social order. Such ideologies are not aimed at improving or healing society, but instead seek to destroy its very foundation, including the foundation for Poland that is clearly confirmed and affirmed by the Polish Constitution. The words spoken by Marek Safjan, who warned of believing in the automatic driving force of mere statements from the Polish Constitution, turn out to be relevant today. Their application can often create an illusion of stability rather than a real guarantee of social order. We believe there is a pressing need for lawyers to become actively involved in the defense of the Constitution. For this reason, we have been guided by the idea of the legal order – ordo iuris. Law is too complex a subject to be presented as a mere set of rules or invoking only the authority of natural law. Lawyer involvement in the law has to take into consideration the context created by extralegal

92 93 94 95 90 91

Ekiert (2020), 12–13, 4. Curanović (2021). Datta (2018). Curanović (2021), 6. cf. Gloppen (2021). Datta (2018), 1.

Populist constitutional politics and civil society fundamentalism  651 regulatory systems, the practice of law and, more broadly, the whole culture. This is why Ordo Iuris is the Institute for Legal Culture.96

Ordo Iuris’ mission is of great significance for the sociological analysis of constitutional politics, in that, as a civil society organisation, its main mission is to seek to ‘abolish the principles of secular law in Poland’. The ‘goal is to bring such changes in secular Polish law so that it would reflect restrictively and fundamentalistically interpreted principles of Christian religion’.97 Interestingly, rather than defending a need for a ‘Fourth Republic’ and a new constitution (as in various moments has been a professed goal of PiS), Ordo Iuris seeks to protect the Polish Constitution by reinterpreting its norms and values in a conservative, fundamentalist manner. In fact, it seeks to influence norms in relation to the traditional family, marriage, as a union between man and woman, condemns abortion, argues against ‘gender ideology’, and against the ‘privileging’ of sexual minorities.98 In this regard, its mission is greatly in line with that of the European and Global Conservative Right, which seeks to promote a ‘natural order’ and the prominence of ‘natural law’99. Ordo Iuris is deeply involved in politics in its mission to promote a natural societal order. According to Curanović, Ordo Iuris uses international activity for the purpose of protecting the Polish domestic order. In this, it has gotten very intimate with the PiS government. From the side of PiS, it has been trying to reshuffle civil society in favour of conservative, rather than liberal, organisations. Ordo Iuris has been very able in using political lobbying to engage with the government and offer both legal advice and social support.100 Ordo Iuris entertains preferential relations with specific ministers and Ordo Iuris personnel has become politically active, notably the former president of Ordo Iuris, Aleksander Stępkowski, judge at the Supreme Court, and also proposed as Polish candidate for the European Court of Human Rights by PiS.101 Ordo Iuris is highly active on the international level in order to promote its key objectives (against ‘gender ideology’, in favour of the natural family).102 In this, it also actively sustains the PiS government against international criticism and action.103 One significant example, among many, is Ordo Iuris’ amicus curiae in the famous Celmer case.104 In this amicus curiae, it argues that ‘considering that the assessment of the state of the rule of law in the Member State whose authorities have requested for an [European Arrest Warrant, EAW] is not admis-

See https://​en​.ordoiuris​.pl/​who​-we​-are. Great Coalition for Equality and Choice 2020), 3, 5. 98 Curanović (2021), 6. 99 As stated in the manifesto of the Agenda Europe organisation, called ‘Restoring the Natural Order’, (2014). Significantly, this was also a main argument by the conservative right in the constitutional debates of the 1990 (see Brier (2006)). Poland is with Hungary spearheading the conservative revolution in Europe, and Ordo Iuris entertains close connections with Hungarian counter-parts, such as the Hungarian Center for Fundamental Rights. For an extensive discussion of Ordo Iuris’ links with Russian, American, and Latin American ultraconservative movements, including networks such as the World Congress of Families, Family Watch International, and C-Fam, see https://​vsquare​.org/​ordo​-iuris​ -and​-friends​-the​-games​-around​-abortion​-ban​-in​-poland/​. 100 Curanović (2021), 13. 101 Curanović (2021), 13. 102 Behr (2021). 103 Curanović (2021), 13. 104 Case C‑216/18 PPU Minister for Justice and Equality v LM, see https://​eur​-lex​.europa​.eu/​legal​ -content/​en/​TXT/​PDF/​?uri​=​uriserv​%3AOJ​.C​_​.2018​.190​.01​.0013​.01​.ENG. 96 97

652  Research handbook on the politics of constitutional law sible, there exist no grounds for the Irish High Court to refuse the execution of the EAW’, making a highly legalistic argument to counter the claim by an Irish court that the rule of law in Poland is dysfunctional (and implicitly defending PiS’ judicial reforms). Ordo Iuris has also backed up the PiS government against European Parliament and European Commission action against what is seen as PiS’ undermining of the rule of law.105 In sum, the civil society action and ‘lawfare from below’ as demonstrated by Ordo Iuris, and many other conservative social actors, demonstrates continuity with conservative objectives that have been prominently present throughout the post-1989 democratisation trajectory. What strikes us as particularly relevant is the legal philosophy around natural law principles which includes a distinctive conservative vision of the constitution, the close relations with the Global Conservative Right, and domestic and international legal activism in a form of ultraconservative lawfare.

5. CONCLUSIONS In this chapter, I have made a case for a broad, political-sociological approach to analyse the relation between populism and constitutionalism, drawing attention to the importance of societal actors, forms of constitutional mobilisation, and legal ‘warfare from below’, and, while drawing explicitly on the case of Poland, I have equally highlighted the wider, comparative relevance of a focus on backlash movements, their distinctive relations with populist political actors, their legal strategies and actions, and their international engagement. The argument has been that the relation between populism and constitutionalism cannot be merely understood from a normative, anti-populist, and legal-institutionalist position, as the latter fails to provide structural insights into the broader, historical and societal emergence of populism, the latter’s relation to processes of democratisation and democratic institutions, and the role of (civil) society in upholding, criticising, or undermining the institutions of democracy and the rule of law. A broadly oriented approach investigates the variegated role of (un-)civil societies in this process. In this chapter, the Polish case has been discussed as an exemplary case in which societal engagement with the constituent process as well as the development of legal mobilisation and ‘lawfare from below’ have become intrinsic parts of Polish democracy. The Polish case 105 The international dimension is a core component of the conservative, populist right’s political agenda, Curanović (2021), 14. The international dimension to populism includes international networking and alliance-building (see n 99), international legal action in the form of for instance litigation and the usage of amicus curiae, as well as the articulation of a strong political critique on the status and identity of international juridical institutions. As extensively researched by Erik Voeten, one aspect of the international dimension is a populist backlash against international courts, Voeten (2021). In Europe, such a backlash plays out in strong contestation of the EU, the European Court of Justice, and the European Court of Human Rights. International lawyers and socio-legal scholars increasingly reflect on such backlashes (see Koskenniemi (2019); Madsen, Cebulak & Wiebusch (2018); Madsen (2021)). Scholars in European Law often reflect on the lack of response to the populist backlash by European actors, see De Búrca (2022); Kelemen (2022). ‘Lawfare from below’ further involves support of populist governments, such as mentioned with regard to Ordo Iuris’ support of the Polish government. A further example is the participation in the Rule of Law consultations of the European Commission, in which backlash movements – such as the Hungarian Center of Fundamental Rights - have submitted arguments defending the Hungarian government against accusations of rule of law backsliding, see Grabowska-Moroz & Kochenov (2021).

Populist constitutional politics and civil society fundamentalism  653 provides important insights for other cases, in Europe and elsewhere, showing how Poland – for a long time perceived as one of the frontrunners in democratisation in East-Central Europe – is part of a broader, global wave of a populist backlashes, which is expressed in strong resistance against sexual and reproductive rights, gender and a broader liberal political agenda, as well as in a highly sceptical position towards liberal international legal institutions. Backlash movements form active components in this political struggle against the liberal-democratic project, demonstrating how democratic societies are dynamic battlegrounds in which avant-garde movements are contrasted with retrograde ones. This struggle is not without risks. When the backlash movements move to steadily reduce the civil sphere and possibilities for pluralistic democratic interaction, political democracy as such is under threat.

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656  Research handbook on the politics of constitutional law Margarit, Diana. (2019). ‘LGBTQ rights, conservative backlash and the constitutional definition of marriage in Romania,’ Gender, Place & Culture 26: 1570–87. Martinico, Giuseppe. Filtering Populist Claims to Fight Populism: The Italian Case in a Comparative Perspective (Cambridge University Press, 2021). McKay, Ben M. & Gonzalo Colque. (2021). ‘Populism and its authoritarian tendencies: The politics of division in Bolivia,’ Latin American Perspectives, OnlineFirst 12 November 2021: 1‒17. Merdzanovic, Adis & Kalypso Nicolaidis. A citizen’s guide to the rule of law: why we need to fight for the most precious human invention of all time (Verlag, 2021). Müller, Jan-Werner. ‘Populism and constitutionalism’ in Cristóbal Rovira Kaltwasser, Paul Taggart, Paulina Ochoa Espejo & Pierre Ostiguy (eds). The Oxford Handbook of Populism (Oxford University Press, 2017) 591–606 . Müller, Jan-Werner. What is Populism? (University of Pennsylvania Press, 2016). NeJaime, Douglas. (2013). ‘Constitutional Change, Courts, and Social Movements,’ Michigan Law Review 111: 877–902. Palermo, Francesco. La manutenzione costituzionale (CEDAM, 2007). Partlett, Will & Zim Nwokora. (2019). ‘The foundations of democratic dualism: Why constitutional politics and ordinary politics are different,’ Constellations 26: 177–93. Pech, Laurent & Kim Lane Scheppele. (2017). ‘Illiberalism within: rule of law backsliding in the EU,’ Cambridge Yearbook of European Legal Studies 19: 3–47. Pech, Laurent & Sébastien Platon. (2021). How Not to Deal with Poland’s Fake Judges’ Requests for a Preliminary Ruling’ (28 July 2021) available at https://​verfassungsblog​.de/​how​-not​-to​-deal​-with​ -polands​-fake​-judges​-requests​-for​-a​-preliminary​-ruling/​. Piscopo, Jennifer M. & Peter M. Slavelis, ‘How Chile’s Constitutional Overhaul Emboldened the Right’ Foreign Policy, available at: https://​foreignpolicy​.com/​2022/​05/​23/​chile​-new​-constitution​-democracy​ -right​-wing​-latin​-america/​. Post, Robert & Reva Siegel. ‘Democratic Constitutionalism’ in Jack Balkin & Reva Siegel (eds). The Constitution in 2020 (Oxford University Press, 2009). Ramet, Sabrina. Civic and uncivic values in Poland (Central Europea University Press, 2017). Roznai, Yaniv & Tamar Hostovsky Brandes. (2020). ‘Democratic Erosion, Populist Constitutionalism, and the Unconstitutional Constitutional Amendments Doctrine,’ Law & Ethics of Human Rights 14: 19–48. Ruibal, Amor. ‘Forms of Countermovement and Counter-Reform in Latin America: Judicial Backlash or Resources and Political and Legal Opportunities?’ in Sandra Botero, Daniel M. Brinks & Ezequiel A. Gonzalez-Ocantos (eds). The Limits of Judicialization: From Progress to Backlash in Latin America (Cambridge University Press, 2022) 89–114. Ruibal, Amor. ‘Legal Mobilization: Social Movements and the Judicial System across Latin America’ in En Federico Rossi (ed). Oxford Handbook of Latin American Social Movements (Oxford University Press, forthcoming). Ruzza, Carlo. (2009). ‘Populism and euroscepticism: Towards uncivil society?,’ Policy and Society 28: 87–98. Sadurski, Wojciech. Poland’s Constitutional Breakdown (Oxford University Press, 2019). Sajó, Andras. (2019). ‘The constitution of illiberal democracy as a theory about society,’ Polish Sociological Review 208: 395–412. Scheppele, Kim Lane. (2018). ‘Autocratic legalism,’ University of Chicago Law Review 85: 545–84. Skąpska, Grazyna. (2019). ‘Abuse of the Constitution as a Means of Political Change,’ Polish Sociological Review 208: 421–38. Stone Sweet, Alec. ‘Constitutions and Judicial Power’ in Daniele Caramani (ed). Comparative Politics (Oxford University Press, 2008) 217–39. Tacik, Przemyslaw. ‘Unwelcome excess of the law: on the critique of populist constitutionalism’ in Central and Eastern European Forum for Legal, Political, and Social Theory Yearbook (Peter Lang, 2020) 21–37. Thornhill, Chris & Emilios Christodoulidis. (2014). ‘New Bearings in the Sociology of Law,’ Social & Legal Studies 23: 487–89. Thornhill, Chris. (2020). ‘Constitutionalism and populism: national political integration and global legal integration,’ International Theory 12: 1–32.

Populist constitutional politics and civil society fundamentalism  657 Thornhill, Chris. (2017). ‘The sociology of constitutions,’ Annual Review of Law and Social Science 13: 493–513. Thornhill, Chris. A sociology of constitutions: constitutions and state legitimacy in historical-sociological perspective (Cambridge University Press, 2011). Tushnet, Mark & Bojan Bugarič. Power to the People: Constitutionalism in the Age of Populism (Oxford University Press, 2021). Tushnet, Mark. Taking the Constitution away from the Courts (Princeton University Press, 2000). Vargam, Mihai & Aron Buzogány. (2022). ‘The two faces of the ‘global right’: Revolutionary conservatives and national-conservatives,’ Critical Sociology 48: 1089–107. Vergara, Camila. (2022). ‘The Battle for Chile’s Constitution,’ New Left Review 135: 97‒118. Voeten, Eric. Ideology and International Institutions (Princeton University Press, 2021). Vorländer, Hans. ‘Constitutions as symbolic orders. The cultural analysis of constitutionalism’ in Paul Blokker & Chris Thornhill (eds). Sociological Constitutionalism (Cambridge University Press, 2017) 209–240. Williams, Susan H. Constituting Equality: Gender Equality and Comparative Constitutional Law (Cambridge University Press, 2009). Wyrzykowski, Miroslaw. ‘Introductory Note to the 1997 Constitution of the Republic of Poland’ in Miroslaw Wyrzykowski (ed). Constitutional Essays (Institute of Public Affairs 1999) 7–13.

35. Militant democracy: a friend or enemy of democratic backsliding? Violeta Beširević

1. INTRODUCTION Populism across the globe has managed to erode several basic foundations of liberal democracy: free elections, separation of powers, governmental accountability, media freedom, and commitment to human rights and freedoms. The secret of this development seems to rest on the ability of populism to take over the substantial source of democracy – the authority of a people. However, it soon became apparent that empowering people in populist regimes has, at its core, a leader’s interest in standing perpetually in power. As András Sajó explains, to hold power enduringly, populists rule by cheating: they have managed to separate democracy from pluralism and the rule of law by combining people’s bias and prejudices with the inherent vulnerabilities of democracy.1 Once populism is translated into governance, democratic backsliding emerges in different ways. Tom Ginsburg and Aziz Huq identify five mechanisms through which erosion occurs: formal constitutional amendment, systematic dismantling of interbranch checks, the elimination of political competition, centralisation and politicisation of the executive power, and weakening of the public sphere.2 Much scholarly attention is devoted to democratic backsliding. Efforts are made to diagnose and define its source, identify how it occurs, and map strategies for preventing or stopping this slippery slope from democracy to non-democracy.3 Among the different strategies discussed is militant democracy. Militant democracy, sometimes called defensive or fitting democracy, refers ‘to the idea of a democratic regime which is willing to adopt pre-emptive, prima facie illiberal measures to prevent those aiming at subverting democracy with democratic means from destroying democratic regimes.’4 The logic of militant democracy emerges in the fight against radical movements and their activities: related to this model, extremists are perceived as threat to democracy and therefore should be excluded from political arena.5 But this stance is controversial because it is not neutral to all voices in the political game, does not support free expression and participation for all, and consequently, does not accommodate all citizens’ voices in representative institutions.6 See Sajó (2021). Ginsburg & Huq (2018), 6, 8–119. 3 See e.g. Mudde (2021); Müller (2016); Mudde (2017); Urbinati (2019); Berlin; Beširević (2019). 4 Müller (2012), 1253. 5 Sajó (2004), 210. 6 For a detailed discussion see, e.g. Malkopoulou & Kirshner (2019); Malkopoulou & Norman (2018); Thiel ed. (2009); Sajó (2004); Invernizzi Accetti & Zuckerman (2017); Müller (2012); Capoccia (2013); Müller (2012); Fox & Nolte (1995); Beširević ed. (2013). 1 2

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Militant democracy: a friend or enemy of democratic backsliding?  659 Having been analysed, the idea of militant democracy in confronting democratic backsliding seems abandoned chiefly for militant democracy’s alleged ability to serve rather than fight democratic backsliding. Cristóbal Kaltwasser and Paul Taggart, for example, worry that it could turn into a powerful weapon of populists themselves since ‘they are not against democracy per se but rather at odds with liberal democracy.’7 Without detailed elaboration, they argue that the reforms of legislature and judiciary in Ecuador, electoral reform and court-packing in Hungary and Venezuela, and tampering with media in Italy represent populist leaders’ militant democracy approach to defend themselves from those confronting them at the expense of very democracy itself.8 Ginsburg’s and Huq’s disqualification of militant democracy offers different and more documented evidence of why militant democracy could potentially be a dangerous tool in populist leaders’ hands. They argue that it is ‘a very risky strategy for associational rights that are at democracy’s core.’9 Because militant democracy may be used against anyone perceived as ‘alien and therefore unworthy of inclusion in the body politic,’ it might have a counterproductive effect.10 As an illustration, Ginsburg and Huq turn to a position of Muslims in today’s Europe, although they correctly note that European Muslims have no chance to seize the political power to overturn democracy, which is the goal that militant democracy seeks to obstruct.11 First, they point to the extensive use of antiterrorist measures in France during the state of emergency declared after terrorist attacks in Paris, with a high impact on ‘the closure or close surveillance of many mosques and Islamic associations.’12 Then, they accentuate the prohibition of Muslim women on wearing head coverings at specific workplaces, upheld in European Human Rights Law which, at the same time, tolerates the choice to display Christian symbols in the classrooms.13 Finally, Ginsburg and Huq question the effectiveness of hate speech prohibition, yet another militant democracy tool, in dealing with democratic backsliding, as, in their view, the ban did not stop far-right parties from acquiring public support in many European countries.14 I argue that scepticism towards militant democracy springs from the wrong association of militant democracy with other concepts that do not treat individual liberty as an absolute value and that, therefore, it is too quickly eliminated from the toolkit for preventing democratic backsliding. In this chapter, I will first use the analysis offered by Ginsburg and Huq, which other scholars have independently offered, as a foil for developing a clearer concept of militant democracy and for identifying misplaced criticisms. After making the necessary distinctions, I will sketch an argument as to why militant democracy could help confront democratic backsliding. 15

9

Kaltwasser & Taggart (2016), 209. Taggart & Kaltwasser (2016), 361. Ginsburg & Huq (2018), 171. 10 Ibid. 11 Ibid. 12 Ibid. 13 Ibid. 14 Ibid, 172. 15 I have developed these arguments in Beširević (2022). 7 8

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2.

WHAT MILITANT DEMOCRACY IS AND IS NOT

2.1

What Does Militant Democracy Stand For?

Ginsburg and Huq are right when they claim that militant democracy deals with internal threats aimed to destroy them with constitutionally instituted legal measures. As Otto Pfersmann notes, the difficulty of stabilising governments was first thoroughly discussed by Plato in The Republic,16 but the problem came into focus with the rise of fascism in twentieth century Europe. The German émigré scholar Karl Loewenstein used the term ‘militant democracy’ (Streitbare Demokratie) to argue that some democratic regimes in post-World War I Europe, including the Weimer Republic, either lacked or failed to use legal defensive measures against fascist emotional techniques of exploiting democratic instrumentalities for their own destruction.17 Loewenstein showed that it was ‘the exaggerated formalism of the rule of law which under the enchantment of formal equality does not see fit to exclude from the game parties that deny the very existence of its rules.’18 To ensure democracy’s survival, Loewenstein suggested that democracy had to restrain its suicidal nature and rise to militancy. The constitutional democracies, he argued, should have developed anti-extremist legislation that would prohibit anti-democratic parties and limit other civil liberties from which the fascists benefited, including freedoms of speech, assembly, and association.19 Starting from the 1948 German Basic Law, Loewenstein’s idea that democracy cannot survive without self-protective measures has been constitutionally entrenched in many jurisdictions, particularly in Europe. Constitutional militancy includes, for example, restricting free speech, outlawing hate speech, banning political parties and associations, and disqualifying parties from electoral lists.20 Thus, notwithstanding different protective techniques that lead to varieties of militancy, contemporary democracies are by default legally structured as more or less militant democracies.21 In contemporary Europe, militant democracy is internationally promoted by the European Court of Human Rights (ECtHR), whose jurisprudence serves as a principal guide to permissible legal obstacles to democracy-endangering actions.22 Moreover, the EU democracy, despite all its deficiencies, is also antagonistic to its enemies. For the first time, a transnational militant-democracy-protective mechanism was included on the EU level in the Amsterdam Treaty (1999), and then amended in 2001 with the adoption of the Treaty of Nice. The amendments were inspired by the sanctions imposed on Austria in 2000 due to the formation of a coalition government that included the far-right Haider's Freedom Party, associated with the National Socialist past.23 The transnational militant democracy mechanism as a response

Pfersmann, (2004), 47. See Loewenstein (1937a and 1937b), both reprinted in Sajó ed. (2004), 231–62. Further in this chapter, all mentioned references indicate the pagination in the reprint. 18 Loewenstein, 238. 19 Loewenstein, 250–61. 20 For a discussion, see e.g. Thiel, ‘Comparative Aspects’ (2009); Beširević ed. (2013) (‘Predgovor [Introduction’]). 21 Pfersmann (2004), 53. 22 See Beširević (2012). 23 For a broad discussion, see Sadurski (2010), 396–409. 16 17

Militant democracy: a friend or enemy of democratic backsliding?  661 to democratic backsliding in the Member States was for the first time activated in 2017 against Poland, and soon after, against Hungary in 2018. Both proceedings are still pending. Because it allows excluding some citizens and their voices from political life, i.e., it diverges from a fundamental premise of liberal democracy under which all citizens and all voices should be accorded free expression and participation, militant democracy has been subjected to various criticisms from the moment of its conceptualisation.24 Loewenstein himself was aware of the democratic dilemma or so-called ‘paradox’ of democracy: ‘Democracy stands for fundamental rights, for the fair play of all opinions, for free speech, assembly, press. How could it address itself to curtailing these without destroying the very basis of its existence and justification?’25 Loewenstein’s approach to democracy was sharply criticised by his contemporary Hans Kelsen who defended pluralism embedded in the idea of democracy on procedural grounds, arguing that all political positions should be given equal rights of expression and participation.26 The fundamental question of how to synchronise autonomy, laying in the heart of political rights and freedoms, and measures aimed at restricting that autonomy, without turning democracy against itself, has been the preoccupation of modern scholars as well, whose debate is driven by contemporary challenges to constitutional democracies, different from those in Loewenstein’s time. This brings me back to the allegation that militant democracy could be a dangerous tool in confronting democracy backsliding. As noted earlier, the conviction mainly derives from the mistaken association of militant democracy with other phenomena that it is often associated with, particularly with a ‘counter-terror state,’ emergency powers, and ‘identitarian democracy.’ Though absent in fact but central to the critics’ arguments, the connections deserve a closer look. 2.2

Militant Democracy Differs from ‘Counter-Terror State’ and Emergency Powers

One line of arguments used by Ginsburg and Huq to show why militant democracy cannot hedge against the risk of democratic erosion is its alleged problematic association with the state’s responses to terrorism. To explain the use of militant democracy’s methods against the Muslim minority in Europe, they merged not only militant democracy and the state responses to terrorism, but militant democracy and emergency powers, as well: ‘Antiterrorism measures, in particular France’s extensive use of emergency powers after a series of attacks in Paris, have led to the closure or close surveillance of many mosques and Islamic associations.’27 Once the distinct models were merged, this inevitably led to the conclusion that constitutionally designed militant democracy can be counterproductive as ‘it is amenable to use against not only those who present an actual threat, but also those who are perceived as alien and therefore unworthy of inclusion in the body politic.’28 Ginsburg and Huq are not the first ones who have connected militant democracy with the state’s responses to terrorism. Some anti-terrorist laws adopted after the 9/11 attacks on the US

See e.g. Dimitrijević (2013). Loewenstein, 243. 26 Kelsen (2013). 27 Ginsburg & Huq (2018), 171. 28 Ibid. 24 25

662  Research handbook on the politics of constitutional law soil have been explained with reference to militant democracy.29 Clive Walker, for example, evaluated then-valid UK anti-terrorism laws, arguing that ‘[t]he anti-terrorism legislation reflects long-standing notions of militant democracy in which a state based on legitimate foundations should be ready and willing to confront opponents who abuse its tolerance.’30 In his view he was advocating for ‘smart militant democracy,’ militant towards organised forms of terrorism, but ‘smart’ and responsive to fundamental democratic values, including individual rights, in order to avoid dehumanisation and delegitimisation of the state’s actions. While in many respects terrorism, either international or domestic, represents a significant threat to democracy, state responses to terrorism, however militant and suppressive towards fundamental rights, should not be equated with militant democracy. In other words, although in both cases it looks like ‘fire is fought with fire’ (Loewenstein), fires are not the same, either offensive or defensive. The fact that militant democracy and state anti-terrorist measures do not treat liberty as an absolute value does not prove that we deal with the same or similar phenomena. Admittedly, the principal dilemma of whether democracy can fight anti-democratic movements, far-right political parties, and terrorist organisations within the rule of law, can blur the difference. But then again, there are many differences. Recall again what militant democracy is about. In Stephen Holmes’ views, militant democracy ‘refers to the capacity of modern constitutional democracies to defend themselves against domestic political challenges to their continued existence.’31 Holmes’ definition implies that: (a) militant democracy addresses democratic self-defence in cases when attacks on democracy are of a political rather than a violent nature prohibited under criminal law and; (b) that militant democracy deals with domestic and not international challenges to constitutional democratic orders. Democratic measures of a militant nature imply restricting free speech, outlawing hate speech, banning political parties and associations, disqualifying parties from electoral lists, securing the irreversibility of constitutional order, and even civil resistance to defend the free democratic order. Terrorism, on the other hand, represents an act of violence, condemned as domestic terrorism, international terrorism, and terrorism as a war crime.32 Being a crime imputing individual criminal responsibility, the state responses are covered in criminal and administrative law and include deprivation of liberty, surveillance, extradition, denial of some due process rights, restrictions on freedom of movement, and more. Even if some measures coincide, like the free speech or religious rights restrictions, this is insufficient to assert or draw an analogy between militant democracy and criminal prosecution, as militant democracy by definition does not cover illegal acts under criminal law (hate speech being a prominent exception).33 Terrorism might or might not be politically motivated, which is irrelevant for its criminal prosecution, while essential for militant democracy to be activated is the political aspiration to destroy democracy. Furthermore, subjects exposed to (violent) emotionalism differ, as well as the purposes of the threats. International terrorism might be instituted against the civilian population, government, or an international organisation, not solely against the

29 For a detailed discussion on the relationship between ‘war on terrorism’ and militant democracy see Roach, (2004). 30 Walker (2011). 31 Holmes (2006). 32 For more see e.g. Cassese (2003), 120–23. 33 For more see Sajó (2006).

Militant democracy: a friend or enemy of democratic backsliding?  663 ‘free democratic order.’34 Recall here that the purpose of acts amounting to international terrorism is to intimidate a population or to compel a government or an international organisation to a specific behaviour utilising violent actions (e.g., murder, kidnapping, hostage-taking, extortion, bombing, torture, and the like), and not to destroy democracy by exploiting democratic instrumentalities. Moreover, international terrorism is identified as ‘a threat to international peace and security’35 and not as a threat to the continued existence of constitutional democracy, which requires the activation of militant democracy. A historical perspective offers yet another difference. Militant democracy was developed to fight against internal secular totalitarian movements, and therefore a strategy to justify ‘war against terrorism’ targeting religious fundamentalist movements under the concept of militant democracy was mistaken. Even if in the meantime circumstances have changed, at the time when the ‘war on terrorism’ was at its peak, hardly any political wing or association of Al-Qaida or another fundamental religious movement were active in the United States or other targeted countries to the extent that they could be labeled an internal enemy for the militant democracy purposes.36 Now, it may be claimed that domestic terrorism is more worrying than international terrorism for a continued existence of democratic order, especially if linked with a political party that defends or excuses terrorist strategy. To defend democracy, a state may resort to the most comprehensive and effective measures and prohibit the subversive party. But then again, the prohibition springs from constitutional law, not from criminal law, although for the prohibition some indication of criminal activity may be required. A good illustration is the prohibition of the Batusana party in Spain, which advocated the independence of the Basque Country and had alleged connections with the ETA terrorist group.37 At the time of the Batusana controversy (the beginning of the 2000s), it seemed that the Spanish Constitution allowed restrictions on associational rights only if the association either favoured criminal goals or used illegal means: ‘Associations which pursue ends or use means classified as criminal offenses are illegal.’38 At the same time, Article 6 of the Spanish Constitution placed political parties in the heart of pluralism, declaring that ‘their creation and the exercise of their activities are free in so far as they respect the Constitution and the law’, and required their internal structure to be democratic.39 The dispute over the issue of whether Article 6 allowed additional limitations on political parties to be imposed, other than restrictions based on criminal law, arose in 2002 with the adoption of the statute concerning political One broadly accepted definition of international terrorism is given in the International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations in the Resolution 54/109 of 9 December 1999. It offers combination of the wartime and peacetime definition of terrorism: [Terrorism is an] ‘act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.’ 35 See The U.N. Security Council Resolution 1373, adopted on 28 September 2001. 36 Beširević (2012), 245. 37 For a detailed discussion see Ferreres Comella (2004). 38 See Article 22(2) of the Spanish Constitution. 39 Article 6 of the Spanish Constitution reads: ‘Political parties are the expression of political pluralism; they contribute to the formation and expression of the will of the people and are a fundamental instrument for political participation. Their creation and the exercise of their activities are free in so far as they respect the Constitution and the law. Their internal structure and operation must be democratic.’ 34

664  Research handbook on the politics of constitutional law parties. Article 9 (2) of the statute envisaged the possibility of outlawing a political party on militant democracy grounds: […] a political party shall be outlawed when its activity violates the democratic principles, in particular, when through its activity it seeks to deteriorate or destroy the system of liberties, or make impossible the democratic system, or eliminate it[…]40

Eventually, it was established that the political party may be prohibited on the grounds enumerated in Article 9(2), even when it was not possible to outlaw it on the grounds of criminal law.41 It turned out that despite the established links between Batusana and ETA, the evidence was not strong enough to satisfy the stringent criminal law standards for declaring Batusana a criminal association, its members criminally liable, and to outlaw it on the basis of the Criminal Code.42 However, the prohibition of Batusana eventually did happen on the grounds of ‘constitutional illegality’ introduced by the 2002 statute for activities against constitutional values defined in Article 9(2).43 For the sake of clarity, the above scenario focuses on political parties inclining to defend terrorist strategies. Consequently, unlike the counter-terror state, militant democracy does not treat everyone as a potential enemy but only the enemy identifiable under the stringent rules. Even then, militant democracy operates under judicial review requirements, which is often not the case with the counter-terror state. Militant democracy is not about emergency powers either, despite the language and reasoning in constitutionally designed models of emergency powers.44 First and foremost, constitutionally designed militant democracy applies in ‘regular’ time in the society and not in an exceptional time when public safety is seriously threatened. Militant democracy is not the law of the exception to be activated according to special emergency rules – its measures are subject to the ‘ordinary’ legal system that operates under normal circumstances. Emergency powers apply only in cases of urgent threat to ‘the life of the nation’ as underlined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, not only when the constitutional order is in danger for political reasons. To activate emergency measures, a state of emergency should be proclaimed while no such condition exists with regard to the application of the militant democracy measures – to dissolve a party or to prosecute hate speech, no state of emergency is needed. Second, the nature of the threat leading to the activation of emergency powers is not reduced only to civil war and terrorism whose protagonists may indeed want to destroy the constitutional (liberal) order: the threats range from war and economic meltdown to natural disasters, as in the COVID-19 virus pandemic. In addition, the threats are not only internal but also external. External threats do not satisfy the definition of militant democracy. And, again, even when civil war or terrorism amount to an attempt to destroy the constitutional liberal order, special measures to preserve it may be justified only if a state of emergency is proclaimed.

Ferreres Comella (2004), 133. Ibid, 138–41. 42 Ibid, 138. 43 Ibid, 138–39. 44 For more on emergency powers see e.g. Dyzenhaus (2012) and Ramraj (Chapter 10 in this volume). 40 41

Militant democracy: a friend or enemy of democratic backsliding?  665 Third, militant democracy measures are typically subject to judicial review, while that is not always the case with the emergency powers. Consider the French model applicable to Ginsburg and Huq’s example. Although the French President should consult the Constitutional Council regarding emergency measures, there are no enforceable checks on the President’s authority to declare the state of emergency and the measures employed to respond to it.45 2.3

Militant Democracy is not Identitarian Democracy

Ginsburg and Huq are right – European human rights law treats the choice to wear Muslim garb as a threat to the democratic order. At a closer analysis, under European human rights law, Muslim women wearing full-face veils or hijabs have been considered enemies of democracy. But this is wrong. It is fully possible to oppose mutations of militant democracy in freedom of religion cases. It all began when the ECtHR in the Leila Sahin case upheld the prohibition on wearing the Islamic headscarf in institutions of higher education in Turkey.46 The Court considered the prohibition to be a preventive measure ‘necessary in a democratic society’ and compatible with the principle of secularism shaped in the Turkish Constitution in militant democracy terms: ‘In a country like Turkey, where the great majority of the population belong to a particular religion, measures taken in universities to prevent certain fundamentalist religious movements from exerting pressure on students who do not practice that religion or on those who belong to another religion may be justified under Article 9 § 2 of the Convention.’47 In several subsequent cases, the Court continued to support the idea that wearing the veil was incompatible with democratic society. For example, the Court held that in a democratic society it was justified to criminalise Muslim women wearing full-face veils since they jeopardised the rights and freedoms of others and the concept of ‘living together’ that are at democracy core.48 Unfortunately, the Court of Justice of the European Union (CJEU) joined the ECtHR in conceptualising the Islamic veil jurisprudence on identitarian democracy grounds and under the notion of neutrality.49 The CJEU upheld private companies’ dress policies in France and Belgium, which banned employees wearing a headscarf. Without considering an employee’s right to manifest her religion, the CJEU declared that the provision aiming to neutralise the religious belief could be justified if it was designed to achieve corporate neutrality, and if the means of achieving that aim were appropriate and necessary.50 A big loser in the European Islamic veil jurisprudence is democracy itself. Both European courts, aggressively (ECtHR) or passively (CJEU) have reinterpreted the freedom of religion rights, to borrow from Susanna Mancini and Michel Rosenfeld ‘in ways that disadvantage or

See Article 16 of the French Constitution; see also Dyzenhaus (2012), 445. Leyla Şahin v. Turkey, App. no. 44774/98, Judgment of 10 November 2005. 47 Ibid, para 114. 48 See e.g. Sas v. France, App. no. 43835/11, Judgment of 1 July 2014, paras 121–122 and Belcacemi et Oussar v. Belgium, App. no. 37798/13, Judgment of 11 July 2017, para 61. 49 The following two cases confirm this finding: Judgment of the CJEU, Case C-157/15, Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV, ECLI:EU:C:2017:203 and Judgment of the CJEU, Case C-188/15 Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v. Micropole SA, ECLI:EU:C:2017:204 50 See Samara Achbita v. G4S Secure Solutions NV, para 35 and Asma Bougnaoui and ADDH v. Micropole SA, para 35. 45 46

666  Research handbook on the politics of constitutional law exclude the rights asserted by Muslims.’51 But should this be assigned to the correct enforcement of militant democracy principles? I think it should not. The concept of militant democracy supports the idea of suppressing those who want to destroy democracy from within, by using constitutionally enriched democratic values. The claim that a Muslim woman, by choosing to wear Muslim garb, wants to destroy democracy cannot be justified on militant democracy grounds without distortion of the very idea of militant democracy, as Patrick Macklem has effectively claimed.52 First, militant democracy does not reflect the idea of identitarian democracy either in its historical or contemporary form. The idea of defending democracy is a project of a liberal democracy and not of Carl Schmitt’s decisionism. Although militant democracy is a paradoxical concept in several aspects, one thing is sure: the very idea of militant democracy was born from the need to protect minorities and not to exclude them from the society. At the time when Lowenstein conceptualised militant democracy, Schmitt had already argued that political communities were based on the friend-enemy polarity.53 While Schmitt worshiped homogeneity and labeled enemy anyone who did not belong to the homogeneous majority, for Loewenstein enemy was anybody who wanted to destroy democracy and pluralism accommodated in the democratic order. Nor does militant democracy today adopt ethnically driven plebiscitarian methods. John Rawls, for example, argues that ‘[…] just citizens should strive to preserve the constitution with all its equal liberties as long as liberty itself in their own freedom is not in danger’; otherwise, ‘they can properly force the intolerant to respect the liberty of others[…]’54 Second, there is no inherent anomaly in the concept of militant democracy that requires the boundaries to be set between majorities in today’s Europe and ‘the Muslim enemy.’ As Mancini reminds, one of the paradoxes of militant democracy is that restrictions to political pluralism are needed to preserve that very pluralism.55 Pluralism lies in the heart of democracy. Even the ECtHR itself repeatedly said that ‘there can be no democracy without pluralism’.56 According to the Court, pluralism is ‘built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious belief, artistic, literary and socio-economic ideas and concepts’.57 But it turned out that the guardian failed to understand what its vision required. The ECtHR’s Islamic veil jurisprudence fits well with its position that Islam is incompatible with democracy. In its highly criticised Refah decision, the Court upheld the decision of Turkish Constitutional Court to ban the Refah Party (forming the then-ruling coalition) on the grounds that its advocacy for a plurality of legal regimes in Turkish society that would include one based on Sharia, stood contrary to the fundamental principles of democracy.58 The Court’s approach is problematic for many reasons. For example, one can easily find anti-democratic policies embodied in other religions, but the Court has not considered that. Thus, the Court Mancini & Rosenfeld (2021), 468. Macklem (2012). 53 Schmitt ([1932] 2007). 54 Rawls (1972), 219. 55 Mancini (2014), 127. 56 United Communist Party of Turkey and Others v. Turkey, App.no.133/1996/752/951, Judgment of 30 January 1998, para 43. 57 Gorzelik and Others v. Poland, App. no. 44158/98, Judgment of 17 February 2004, para 92. 58 Refah Partisi (The Welfare Party) And Others v. Turkey, App.no. 41340/98, 41342/98, 41343/98 and 41344/98, Judgment of 13 February 2003, paras 117–28. 51 52

Militant democracy: a friend or enemy of democratic backsliding?  667 neither considers mandatory display of Christian symbols as a threat to democracy,59 nor has it been ready to problematise a state’s policy concerning the beginning and the end of life, adopted in some Member States under the strong influence of the Catholic religion.60 If one adds to this the fact that many European parties originated from affiliation to the Christian religion without this being questioned by the Court, it is hard to resist the conclusion that the Court’s vision of ‘democratic society’ is hardly compatible with society which does not originate from ‘Christian principles and values’.61 In sum, the boundaries between majorities in today’s Europe and ‘the Muslim enemy’ are judicial (and legislative) constructions that appeared recently, together with globalisation and migration waves; they are not inherent in the concept of militant democracy. Third, in Sajó’s view militant democracy is constitutional risk aversion.62 If this is so, to what extent, if any at all, a Muslim woman wearing Muslim garb is a risk to democracy that requests militant reaction, i.e. restriction of the right to manifest her religion? Going back to the Leila Sahin case, the warning of dissenting judge that ‘not all women who wear the headscarf are fundamentalists’,63 indicates that generally no apparent link between the women wearing the Muslim garb and anti-democratic agenda, necessary to build a militant democracy case, exists. Moreover, the number of women wearing full-face veils in public spaces in Europe does not expose well-organised and massive anti-democratic force: Mancini’s analysis shows that, at one point, measures criminalising such apparel targeted around 200 women in Belgium, fewer than 2000 women in France, around 160 in Austria, and 300 in the Netherlands.64 Finally, if, as Mancini suggests, one takes into account Edward Said’s claim that the Orient was one of the key blocs in building the European identity,65 the absurdity of subjecting Muslim women wearing veils to ‘permissible’ limitations of religious liberty becomes obvious. However, this is not to deny that the European courts, although erroneously, have transplanted militant democracy logic in the religious freedom domain, moving European democracy closer to Schmitt’s vision of the constitutional state. Nevertheless, this is not for the first time in history that the courts have supported exclusionary politics. The experience learned from the US Supreme Court Korematsu decision in which the Court upheld a race-specific statute disadvantaging the US citizens of Japanese origin due to military necessity during World War II should serve as a clear warning.66 Long after, in 1984, Congress enacted legislation acknowledging ‘the fundamental injustice’ towards Japanese minority, while the very same Supreme Court in 2018 admitted that the decision was wrong: ‘The dissenter’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and – to be clear – has no place in law under the Constitution.’67 By the same token, the ECtHR’s and CJEU’s Islamic veil-jurisprudence that facially discriminate against Muslim women is inherently suspect under a liberal constitutional design. See Lautsi and Others v. Italy, App. no. 30814/06, Judgment of 18 March 2011. Beširević (2012), 254–55. 61 Ibid. 62 Sajó (2004), 213. 63 Leyla Şahin v. Turkey, op. cit., Dissenting Opinion of Judge Tulkens, para 10. 64 Mancini (2019), 129. 65 Said (1979), 19–20. 66 Korematsu v. United States, 323 U.S. 214 (1944). 67 Trump v. Hawaii, 138 S.Ct. 2392 (2018), 38. 59 60

668  Research handbook on the politics of constitutional law In sum, as militant democracy does not equal the present phenomenon of identitarian democracy, the judicial construction of the Muslim women being a threat to democracy should be challenged and not used as a claim against militant democracy.

3.

CAN MILITANT DEMOCRACY CONFRONT DEMOCRATIC BACKSLIDING?

So far, I have focused on the conceptual issues – what is and what is not militant democracy as a first step in testing thesis that militant democracy cannot prevent democratic backsliding. Assuming that my differentiation between militant democracy, anti-terrorism law, and its mutations in the religious liberty field is correct, the issue which still begs answer is can militant democracy make democratic backsliding less likely? Perhaps Ginsburg and Huq’s disqualification of militant democracy from the preventive constitutional toolkit may be right, but for reasons other than those they give. One should keep in mind that Ginsburg and Huq have been investigating how constitutional design might prevent democratic erosion. For that purpose, they have recommended several techniques to a hypothetical designer of a new constitution. The elimination of militant democracy from the preventive constitutional toolkits should not surprise, as militant democracy is mostly absent from the constitutional discourse in the US. Several reasons explain this fact. First, the concept is usually associated with restrictions of the freedom of speech, an idea highly disqualified under the First Amendment’s speech clause.68 Second, a (wrong) tendency in the American discourse to identify defence mechanisms with criminal prosecution makes militant democracy an undesirable constitutional democracy defending technique.69 Third, Samuel Issacharoff identifies the specificity of the American presidential system that limits the possibility for extremists to disrupt governance, as yet another reason for the redundancy of militant democracy in the US. ‘There are many reasons to be wary of presidentialism, but it does serve as a buffer to the threat posed by marginal parties’ ability to insinuate themselves into parliament and disrupt governance from within,’ Issacharoff claims.70 Now, putting the issue of presidentialism to one side because not all contemporary democracies will adopt it, should European democracies should keep their militancy constitutionally entrenched? Specifically, is militant democracy helpful in confronting democratic backsliding induced by populism? Populists, like extremists, are depicted as a threat to democracy. However, these threats are of a different sort. Populists rule in people’s name, and therefore, unlike extremists, they do not want to destroy democracy but to reduce it to electoral democracy as they maintain power through regular elections. Consequently, it seems that the militant democracy paradigm makes little sense in confronting populists’ attacks on democracy, as Joseph Weiler claims, democratic backsliding ‘is often done in the name of democracy and popular will.’71 Put differently, populists are not enemies of democracy in the same sense as extremists because the majoritarianism they rely on, in principle, does not reject democracy. In the end, as Jan-Werner 70 71 68 69

Tushnet (2009), 357. Ibid. See also Müller (2019), 15. Issacharoff (2007), 1420. Weiler (2016), 314.

Militant democracy: a friend or enemy of democratic backsliding?  669 Müller argues, militant democracy’s response to populist rulers can harm democracy rather than defend it because it may amount to revenge.72 Thus, on the one hand, populists exclude all those who do not belong to ‘true people’ in their version of ‘the people’, while on the other, the militant democracy response to such differentiation is also of an exclusionary nature.73 In view of these considerations, it seems likely that militant democracy can be the wrong tool to confront democratic backsliding. However, democracy should not be reduced to the majority rule. Cass Sunstein reminds us that constitutionalism is the preventive mechanism to protect democratic processes against their own excesses or misjudgments: ‘if a political majority restricts dissenters, or disenfranchises people, it is behaving inconsistently with democracy, and a constitution that forbids those actions is justified on democracy grounds.’74 Therefore, some authors have suggested that constitutionalism should be upgraded to a militant mode as a response to the populist erosion of democracy.75 ‘Militant constitutionalism’ symbolises robust constitutional self-defence, an improved version of preventive measures already embodied in the constitutions. According to Sajó, upgrading constitutionalism to a militant form should embrace entrenchment clauses crucial for preserving liberal democracy, proportional electoral system, safeguards against direct democracy, strict criteria to ensure judicial independence, safeguards against corruption in public administration and against abuse of emergency powers, to name some of them.76 But this does not mean that militant democracy, which differs from militant constitutionalism, is a redundant concept in confronting populism and induced democratic backsliding. First, populism feeds extremism, so classic militant democracy measures, like restrictions of associational rights to exclude additional anti-democratic actors from the political arena either before populists come to power or once they assume it, could help democratic self-defence. A good example is the ban and dissolution of the Hungarian Guard Association and Hungarian Guard Movement established by the Association, whose activities targeted the Roma population. The ban was imposed by the Hungarian national courts, just as populists were to assume power in Hungary.77 Soon after, it was upheld by the ECtHR. In considering the ban, the ECtHR emphasised that the activities of the Hungarian Guard Association can be regarded as implementing a policy of racial segregation and can be seen as constituting the first steps in the realisation of a certain vision of ‘law and order’ which is racist in essence.78 Had the authorities failed to impose the ban, ‘the general public might have perceived this as legitimisation by the State of this menace, concluded the Court.’79 In other words, ‘this would have enabled the Association, benefiting from the prerogatives of a legally registered entity, to continue to support the Movement, and the State would thereby have indirectly facilitated the orchestration of its campaign of rallies.’80 Accordingly, militant democracy prevents tacit (not to mention open) collaboration between populist rulers and extremists and helps exclude Müller (2019), 17. Ibid. 74 Sunstein (2001), 97. 75 Sajó, (2019); Gutmann & Voigt (2021) https://​link​.springer​.com/​article/​10​.1007/​s11127​-021​ -00874​-1​#citeas (22 November 2022). 76 Sajó (2021), 198–201. 77 See Vona v. Hungary, App. No. 35943/10, Judgment of 9 July 2013. 78 Ibid, para 69. 79 Ibid, para 71. 80 Ibid. 72 73

670  Research handbook on the politics of constitutional law anti-democratic actors from the political arena in circumstances where democracy is already partly destroyed. Second, transnational militant democracy may prove successful in saving national democracies from the populists’ grip. As ruling populists in Hungary and Poland managed to dismantle constitutional self-defence mechanisms, the European Union had intervened, and as mentioned earlier, it activated a transnational militant democracy mechanism to sanction Poland and Hungary. The proceedings under Article 7 TEU are still pending and could end up in the suspension of their voting rights in the Council and the rights derived from secondary EU law. Equally important is the CJEU’s militant stance against Poland in court-packing cases: it indicates how judicial avenues may also help prevent the Member States from reducing democracy only to the election of leaders.81 Finally, if its focus had not been shifted in the last version before the adoption, the EU Budget Conditionality Regulation might also be seen as a transnational militant democracy mechanism. However, under the Budget Conditionality Regulation, the rule of law violations will be sanctioned only if they affect or seriously risk affecting the EU budget sufficiently directly and not the rule of law as a principal tenet of democracy. Therefore, one can only speculate about the Budget Conditionality Regulation’s indirect strength in confronting democratic backsliding in the Member States.82 Ultimately, carefully selected, what Muller calls ‘individual militant democracy’ measures, including a partial and provisional restriction of electoral rights, some forms of impeachment, or individual resistance to democratic backsliding on the ground of the right to resistance, could also help in saving democracy from dying.83 Olsen’s suggestions of citizens’ actions against non-liberal democratic parties (including extremists and populist parties) also belong to this group of responses. He contemplates actions ranging from principled disobedience to citizens’ democratic self-defence, even in a revolutionary sense, in case functioning public institutions no longer exist.84

4. CONCLUSIONS The alleged metamorphosis of militant democracy into a counter-terror state, emergency powers, or identarian democracy is not reason for taking militant democracy out of the preventive toolkit for confronting democratic backsliding. As shown in this chapter, militant democracy differs from these concepts. Knowing that populism encourages extremism, classic militant democracy measures, like political party bans and associational rights restrictions, might effectively prevent democracy erosion. ‘Individual militant democracy measures’ may serve the same purpose well. The example of the European Union testifies that transnational militant democracy may also defend democracy in case of regression. I am not alleging that applying militant democracy measures to save democracy from dying is not potentially risky. However, the potential concern relates to its inherent arbitrariness, not its alleged metamorphosis.

83 84 81 82

See in Beširević (2022). For more see de Búrca (2022). Müller (2019), 18–31. Olsen (2022).

Militant democracy: a friend or enemy of democratic backsliding?  671

REFERENCES Berlin, Isaiah. To Define Populism. http://​berlin​.wolf​.ox​.ac​.uk/​lists/​bibliography/​bib111bLSE​.pdf. Beširević, Violeta. ‘Thinking Outside the Politics Box: Framing a Judicial Role in Shaping Militant Democracy in the European Union’ in Martin Belov (ed) Courts and Judicial Activism under Crisis Conditions: Policy Making in a Time of Illiberalism and Emergency Constitutionalism (Routledge, 2022)74–98. Beširević, Violeta (ed). New Politics of Decisionism (Eleven International Publishing, 2019). Beširević, Violeta (ed). Miltantna demokratija – nekada i sada [Militant Democracy – Then and Now], Pravni fakultet Univerziteta Union u Beogradu, Službeni Glasnik (Belgrade, 2013). Beširević, Violeta. ‘Militant Democracy and Populism: A Response to Tom Ginsburg and Aziz Huq’ in Đ. Gardašević, V. Gotovac & S. Zrinšćak (eds) Pravo i društvo, Liber Amicorum Josip Kregar (Pravni fakultet Sveučilišta u Zagrebu, 2022) 133–60. Beširević, Violeta. ‘A Short Guide to Militant Democracy: Some Remarks on the Strasbourg Jurisprudence’ in Wolfgang Benedek, Florence Benoît-Rohmer, Wolfram Karl & Manfred Nowak (eds) European Yearbook of Human Rights 2012 (Intersentia, 2012) 243–58. Capoccia, Giovanni. (2013). ‘Militant Democracy: The Institutional Bases of Democratic Self-Preservation,’ Annual Review of Law and Social Science 9: 207–26. Cassese, Antonio. International Criminal Law (Oxford University Press, 2003). De Búrca, Gráinne. (2022). ‘Poland and Hungary’s EU Membership: On not Confronting Authoritarian Governments,’ International Journal of Constitutional Law 20: 13–34. Dimitrijević, N. ‘Militantna demokratija, konstitucionalna demokratija i osnovana prava: da li su prijatelji demokratije neprijatelji slobode?’ [Militant Democracy, Constitutional Democracy and Fundamental Rights: Are Friends of Democracy Enemies of Freedom?] in Violeta Beširević (ed) Miltantna demokratija – nekada i sada [Militant Democracy – Then and Now] (Pravni fakultet Univerziteta Union u Beogradu, Službeni Glasnik, 2013) 31–60. Dyzenhaus, David. ‘States of Emergency’ in Michel Rosenfeld & András Sajó (eds) The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) 442–62. Ferreres Comella, Victor. ‘The New Regulation of Political Parties in Spain, and the Decision to Outlaw Batusana,’ in András Sajó (ed). Militant Democracy (Eleven International Publishing, 2004) 133–56. Fox, Gregory H. & Georg Nolte. (1995). ‘Intolerant Democracies,’ Harvard International Law Journal 36: 1–70. Ginsburg, Tom & Aziz Huq. How to Save a Constitutional Democracy (University of Chicago Press, 2018). Gutmann, Jerg & Stephan Voigt. (2021). ‘Militant Constitutionalism: A Promising Concept to Make Constitutional Backsliding Less Likely?,’ Public Choice, https://​link​.springer​.com/​article/​10​.1007/​ s11127​-021​-00874​-1​#citeas (22 November 2022). Holmes, Stephen. (2006). Review: András Sajó (ed) Militant Democracy. International Journal of Constitutional Law 4: 586–91. Invernizzi Accetti, Carlo & Ian Zuckerman. (2017). ‘What’s Wrong with Militant Democracy?,’ Political Studies 65: 182–99. Issacharoff, Samuel. (2007). ‘Fragile Democracies,’ Harvard Law Review 120: 1405–67. Kaltwasser, Cristóbal Rovira & Paul Taggart. (2015). ‘Dealing with Populists in Government: A Framework for Analysis,’ Democratization 23: 201–20. Kelsen, H. The Essence and Value of Democracy in N. Urbinati & C.I. Accetti (eds), B. Graf (transl). (Ransowman & Littlefield Publishers, 2013). Loewenstein, Karl. (1937a). ‘Militant Democracy and Fundamental Rights I,’ American Political Science Review 31: 417–32. Loewenstein, Karl. (1937b). ‘Militant Democracy and Fundamental Rights II,’ American Political Science Review 31: 638–58. Macklem, Patrick. (2012). ‘Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe,’ Constellations 19: 575–90. Malkopoulou, Anthoula & Alexander S. Kirshner. Militant Democracy and Its Critics: Populism, Parties, Extremism (Edinburgh University Press, 2019).

672  Research handbook on the politics of constitutional law Malkopoulou, Anthoula & Ludvig Norman. (2018). ‘Three Models of Democratic Self-Defense: Militant Democracy and its Alternatives,’ Political Studies 66: 442–58. Mancini, Susanna & Michel Rosenfeld. (2021). ‘Nationalism, Populism, Religion, and the Quest to Reframe Fundamental Rights,’ Cardozo Law Review 42: 463–535. Mancini, Susanna. ‘European Law and the Veil: Muslim Women from Victims to Emblems of the Enemy’ in Alberto Melloni & Francesca Cadeddu (eds) Religious Literacy, Law and History: Perspectives on European Pluralistic Societies (Routledge, 2019) 127–36. Mancini, Susanna. ‘The Tempting of Europe, the Political Seduction of the Cross: A Schmittian Reading of Christianity and Islam in European Constitutionalism’ in Susanna Mancini & Michel Rosenfeld (eds) Constitutional Secularism in an Age of Religious Revival (Oxford University Press, 2014) 111–35. Mudde, Cas. ‘Populism and Constitutionalism: Theory and Practice’ in Nils Holtug & Eric M. Uslaner (eds) National Identity and Social Cohesion (Rowman & Littlefield Publishers, 2021), 221–39. Mudde, Cas. ‘Populism: An Ideational Approach’ in Cristóbal Rovira Kaltwasser et al. (eds) The Oxford Handbook of Populism (Oxford University Press, 2017) 1–26. Müller, Jan Werner. ‘Individual Militant Democracy’ in Anthoula Malkopoulou & Alexander S. Kirshner (eds) Militant Democracy and Its Critics: Populism, Parties, Extremism, (Edinburgh University Press, 2019) 13–37. Müller, Jan Werner. ‘Militant Democracy’ in Michel Rosenfeld & András Sajó (eds) The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) 1253–69. Müller, Jan Werner. (2012). ‘A Practical Dilemma Which Philosophy Alone Cannot Resolve? Rethinking Militant Democracy: An Introduction,’ Constellations 19: 536–39. Müller, Jan Werner. What is Populism? (University of Pennsylvania Press, 2016), Olsen, T.V. (2022). ‘Citizens’ Actions against Non-liberal-democratic Parties,’ European Constitutional Law Review 18(3): 466–87. Pfersmann, Otto. ‘Shaping Militant Democracy: Legal Limits to Democratic Stability’ in András Sajó (ed) Militant Democracy (Eleven International Publishing, 2004) 47–68. Rawls, John. A Theory of Justice (Oxford University Press, 1972). Roach, Kent. ‘Anti-Terrorism and Militant Democracy’ in András Sajó (ed) Militant Democracy (Eleven International Publishing, 2004) 171–207. Rosenfeld, Michel & András Sajó (eds). The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012). Sadurski, Wojciech. (2010). ‘Adding Bite to a Bark: The Story of Article 7, EU Enlargement, and Jörg Haider,’ Columbia Journal of European Law 16: 396–409. Said, Edward. Orientalism (Penguin Random House, 1979). Sajó, András. ‘Militant Constitutionalism’ in Anthoula Malkopoulou & Alexander S. Kirshner (eds) Militant Democracy and Its Critics: Populism, Parties, Extremism (Edinburgh University Press, 2019) 187–206. Sajó András. ‘From Militant Democracy to the Preventive State?’ (2006) Cardozo Law Review 27: 2255–94. Sajó, András (ed). Militant Democracy (Eleven International Publishing, 2004). Sajó, András. ‘Militant Democracy and Transition towards Democracy’ in András Sajó (ed). Militant Democracy (Eleven International Publishing, 2004) 209–30. Sajó, András. Ruling by Cheating: Governance in Illiberal Democracy (Cambridge University Press, 2021). Schmitt, Carl. The Concept of Political (trans. G. Schwab, University of Chicago Press, [1932] 2007). Sunstein, Cass. Designing Democracy: What Constitutions Do (Oxford University Press, 2001). Taggart, Paul & Cristóbal Rovira Kaltwasser. (2016). ‘Dealing with Populists in Government: Some Comparative Conclusions,’ Democratization 23: 345–65. Thiel, Markus. The ‘Militant Democracy’ Principle in Modern Democracies (Ashgate Publishing Limited, 2009). Thiel, Markus. ‘Comparative Aspects’ in Markus Thiel (ed). The ‘Militant Democracy’ Principle in Modern Democracies (Ashgate Publishing Limited, 2009) 379–424. Tushnet, Mark. ‘United States of America’ in Markus Thiel (ed). The ‘Militant Democracy’ Principle in Modern Democracies (Ashgate Publishing Limited, 2009) 357–77.

Militant democracy: a friend or enemy of democratic backsliding?  673 Urbinati, Nadia. Me The People: How Populism Transforms Democracy (Harvard University Press, 2019). Walker, Clive. (2011). ‘Militant Speech about Terrorism in a Smart Militant Democracy,’ Mississippi Law Journal 80: 1395–453. Weiler, Joseph H.H. ‘Epilogue: Living in a Glass House: Europe, Democracy and the Rule of Law’ in Carlos Closa & Dimitry Kochenov (eds). Reinforcing the Rule of Law Oversight in the European Union (Cambridge University Press, 2016) 313–26.

36. Hindu Zion: the politics of constitutional accommodation Suryapratim Roy and Rahul Sambaraju

A primary focus of the Bharatiya Janata Party (BJP) led by Narendra Modi in its campaign for a second-term in the central government1 was reform of citizenship law by way of changes to the National Register for Citizens (NRC) and passing the Citizenship (Amendment) Act in 2019 (CAA). The CAA relaxes the naturalisation requirements for Hindus and other non-Muslims facing religious persecution or seeking refuge, from Afghanistan, Bangladesh and Pakistan. The NRC is an attempt to draw up a register of Indian citizens, which prioritises documentary evidence in proving citizenship in the Indian Union. In the process of advocating for the CAA and NRC, the Home Minister Amit Shah queried, ‘Illegal infiltrators in crores have entered our country. Like termites, they have eaten the future of the country. Shouldn’t they be uprooted?’2 While the CAA was hastily tabled prior to the elections in the Parliament, changes to the NRC was commenced in the state of Assam (bordering Bangladesh) through a judicial process.3 Given the expressive effect of the CAA and the NRC was to cast doubt on ‘anti-nationals’, the period in the run-up to the elections was particularly dark: the number of sedition cases in courts increased,4 lynching by Gau-rakshaks or cow protectors against Muslims5 and ‘sickulars’6 of all religions was rampant. The ‘banal nationalism’7 of a culture of doubt about anti-nationals frequently resulting in violence brought about by citizenship discourse coupled with other legislative changes (such as a change in the status of Kashmir) continued – an Uber driver brought a customer to a police station when he allegedly criticised India in a private phone conversation,8 the Central University of Kerala has banned anti-national conversations.9 For an account of the various measures adopted in the campaign, see Jaffrelot & Verniers (2020). ‘Infiltrators in Crores Entered Country, Eating it Like Termites: Amit Shah’, Indian Express (24 September 2018). Available at: https://​indianexpress​.com/​article/​india/​amit​-shah​-100​-crore​-infiltrators​ -entered​-country​-eating​-it​-like​-termites​-5371011/​. 3 For the novelty of a judiciary-led bureaucratic exercise on a court-determined calendar, see Mohsin Bhat, ‘On the NRC, Even the Supreme Court is Helpless’, The Wire (7 January 2019). Available at: https://​thewire​.in/​law/​nrc​-supreme​-court​-crisis. 4 Basu Chandola and Yash Bhatnagar, ‘The Sedition Law: the past, present, and future’, Observer Research Foundation (27 May 2022). Available at: https://​www​.orfonline​.org/​expert​-speak/​the​-sedition​ -law​-the​-past​-present​-and​-future/​#:​~:​text​=​approximately​%20800​%20sedition​%20cases​%20have​,​%2C​ %202019​%2C​%20and​%202020​%20respectively. 5 Nakamizo (2020). 6 Samanth Subramanian, ‘How Hindu Supremacists and Tearing India Apart’, The Guardian (20 February 2020). 7 Billig (1995). 8 Rachel Chitra, ‘Uber customer taken to police station by driver for being 'anti-national’, Times of India (6 February 2020). Available at: https://​timesofindia​.indiatimes​.com/​india/​uber​-customer​-taken​-to​ -police​-station​-by​-driver​-for​-being​-anti​-national/​articleshow/​73981614​.cms. 9 KM Rakesh, ‘Central University of Kerala bans Anti-national Lectures’ The Telegraph (9 September 2021). 1 2

674

Hindu Zion: the politics of constitutional accommodation  675 The Supreme Court has been critiqued to have been operating as an ‘executive court’ of late, where revisionism, evasion and vagueness are common in judicial review.10 Sedition cases across the country have also characterised a change in the use of public interest litigation from the pursuit of economic and social justice to state-aligned curbing of dissent.11 India is a very different place now than it was a decade ago. In political speech, public reasons, and acts of public officials and private citizens alike, there is a clear and consequential change. There are now multiple studies on the prevalence and destruction caused by Hindu nationalism.12 One feature of this rise of Hindu nationalism is no dramatic constitutional change. There have been no express constitutional amendments.13 Further, the judiciary has not made any path-breaking interpretations of constitutional provisions to support the incumbent government that may be construed as amendments. On the contrary, the only major constitutional decision during this period expanded the right to privacy and restricted government powers under national security; the Supreme Court reversed emergency jurisprudence that was put in place several decades ago.14 It may be asked – could there be such dramatic change in public reason without there being substantial constitutional change? It may well be that the time is up for the Indian constitution; that the literature on constitutional endurance is right that constitutions do indeed die, and more often than not, quite quickly.15 Here an argument made is that the constitution has not been killed in one swoop, but rather suffered death by a thousand cuts.16 There has been a progressive erosion of Indian constitutionalism as we know it by piecemeal institutional lapses. Another way to look at it is that there have been glaring constitutional silences that have allowed for a political turn of affairs. The Indian constitution appears to have turned out to be a malleable and susceptible constitution. All of these explanations may well be correct, but the phrase we think best captures the current state of affairs is ‘constitutional accommodation.’ After the partition of undivided India in 1947 into India and Pakistan (the Partition), divisive voices posed a challenge to achieving consensus in drafting the text of the constitution. What may have appeared to be relatively harmless accommodations of communal nationalism in the non-justiciable Directive Principles of State Policy may also be seen as creating the tools for an insurgent radical takeover. Further, a central provision of the constitution was deference to the legislature to work out nuances on Indian citizenship via a notwithstanding clause. Such deference may be understood as bending to and entrenching communal divisiveness into the beating heart of the constitution, in addition to allowing continuity of colonial citizenship law

10 Sen & Guha (2020); Manu Sebastian, ‘How Has the Supreme Court Fared During the Modi Years?’ The Wire (12 April 2019). Available at: https://​thewire​.in/​law/​supreme​-court​-modi​-years. 11 Shalu Nigam, ‘Strategic Lawsuits Against Public Participation’, CounterCurrents (15 July 2021). Available at: https://​countercurrents​.org/​2021/​07/​strategic​-law​-suits​-against​-public​-participation​ -in​-india​-why​-the​-neutrality​-principle​-of​-law​-not​-working/​. 12 Jaffrelot (2021); Narrain (2022); Filkins (2019). 13 The change in the status of Jammu & Kashmir may be construed as a constitutional amendment. However, Jammu and Kashmir has a special status where a presidential order and governor’s consent would suffice, without going through the ordinary amendment process. We thank one of the anonymous reviewers for pointing this out. 14 Puttaswamy v. Union of India (2017) 10 SCC 1. 15 Ginsburg (2011). 16 Khaitan (2020). A similar argument is made by Ahmed in relation to instances of appropriation of constitutional rights. Ahmed (2023).

676  Research handbook on the politics of constitutional law on the ‘foreigner’.17 This is what we mean by constitutional accommodation – post-Partition divisiveness is dealt with by deferral of citizenship to ordinary law, and constitutional provisions on communal nationalism are inserted, which are amenable to political mobilisation. These elements were seized by the current government for the discursive reterritorialisation of India into a Hindu state via constructions of the Indian citizen. We argue that the current political climate has been constitutionally accommodated; this is why despite there being no recent constitutional change, the process of creating a Hindu state is being achieved through law. A key tool in this process is citizenship law, and the accompanying political discourse on Indian citizenship. This chapter proceeds as follows: it discusses the concept of constitutional accommodation and shows how India is constitutionally poised for communal nationalism, Section 2 shows how legislative discourse on citizenship reterritorialises India into a Hindu state. We take up a discursive analysis of debates around citizenship in the Constituent Assembly (1947–1950) and more recent debate on the Citizenship Amendment Act in the Lok Sabha in 2019. Section 3 considers this reterritorialisation by drawing a comparison with Faisal Devji’s thesis on Muslim Zion, and demonstrates the extent and limits of the analogy to present-day India. In distinction to Pakistan and Israel, India seeks to create an international haven for Hindus via legislative discourse facilitated by constitutional accommodation. While both Pakistan and Israel sought to delegitimise geography in favour of a people, India seeks to reterritorialise itself in the light of a robust idea of a communal people.

1.

PARTITION AND THE LONG ARM OF CONSTITUTIONAL ACCOMMODATION

In this section, it shall be demonstrated how communal nationalism has been constitutionally accommodated in India. There are two primary elements that facilitated such accommodation: a ‘notwithstanding’ clause on citizenship inserted into the constitution to allow the legislature to deal with thorny question of citizenship in the wake of the Partition, and the textual presence of communal nationalism in the Indian constitution in the directive principles, which acquired potency given the electoral support behind such provisions in some states of the Union. Such accommodation allowed for two key legislative acts on citizenship: the revival of colonial legislation on the foreigner who needs to prove her citizenship, and CAA. The relationship between religious nationalism and the constitutional text has been unexplored, which we will argue is central to understanding the current political climate. To do so, we chart a legal history of Indian citizenship, focusing on the Constituent Assembly of India Debates, highlight the centrality of the Partition, the relationship between the NRC and the Foreigners Act 1946, and finally development of the CAA. Picking up on this discussion, we explain our point of departure from contemporary accounts of Indian constitutionalism to appreciate how the constitution could facilitate a particular sort of politics.

This was by operation of the Foreigners Act 1946, which played a key role in determination of citizenship in Assam after the formation of Bangladesh, discussed in the paper. For extensive discussion, see Abdul Rahman (2020). 17

Hindu Zion: the politics of constitutional accommodation  677 1.1

The Partition and Constituent Assembly Debates

In the 1911 census, 200,000 people in Gujarat identified themselves as ‘Mohammedan-Hindus’.18 Till the 1920s, communal conflict was not connected with the state. Nair argues that Hindus and Muslims were attributed monolithic definitions for ‘British purposes’; in response to a British requirement to reach ‘an agreement between religious communities as a prerequisite for independence’, these groups assumed a ‘representative character’.19 This inspired claims and counter-clams about how representation was weighted in electoral design, leading to a communal riot in 1924, after which the idea of redrawing provincial boundaries was in the air. The Muslim League emerged as the representative body of the Muslims, while Hindu representation was conflicted. The Indian National Congress sought to unify and integrate all interests under the leadership of Jawaharlal Nehru (preceded by his father Motilal Nehru) and the support of Mohandas Karamchand Gandhi along universalist lines. Given the impetus for nationalism that accompanied political representation and separatism, there was a simultaneous rise of ‘an alternative political culture’20 of Hindu nationalism that took the form of the Hindu Mahasabha – first as a lobby within the Congress, and then as a political party in its own right under the leadership of V.D. Savarkar. Savarkar declared himself an atheist and advocated a Hindu identity linked to the nation, and in opposition to Muslim threat – captured by the moniker ‘Hindutva’.21 To put this ideology in practice, the Rashtriya Swayamsevak Sangh (RSS) was setup with multiple local branches, and a leader or pracharak for each branch.22 Narendra Modi and several members of the BJP have been RSS pracharaks. The focus on religion-based representation shifted the caste question and the claims of BR Ambedkar, the Dalit leader and chief draftsman of the Indian constitution, to constitutional integration rather than a political threat with a claim for electoral representation.23 One consequence of such integration was Ambedkar’s role as chairman of the Drafting Committee of the Constituent Assembly. The Constituent Assembly was a legislative body set up in 1946 to draft India’s constitution; their primary way of functioning was for committees to draft provisions, which were debated and adopted via the publicised Constituent Assembly Debates (CAD) between 1947 and 1950. While these discussions were going on, the Indian Independence Act 1947 resulted in the dissolution of the British empire and divided the Union into two separate dominions – India and Pakistan – separated by the Radcliffe Line. Partition was characterised by raging communal violence: the death toll ranged to two million; there were innumerable rapes, loss of property and homelessness, mutilation and disease.24 After 18 Oberoi (1997), 11. For a discussion on the homogenisation and polarisation of religion following a majoritarian morality, see Kannabiran (2012), 272–300. See also Menon (2015), 47–60. 19 Nair (2011), 62. 20 Jaffrelot links the change from Hinduism as a conglomeration of sects to a representative ideology of an autochthonous people to reactionary moves against Christian missionaries, British bureaucrats (ironically supported by oriental views on Indian exceptionalism), as well as against a Muslim electorate. Jaffrelot (2007), 4. 21 Ibid, 15. 22 For an account of the development of the Hindu mahasabha and RSS, see Bhatt (2001). For a general account of the relationship between conservative civil society organisations and law, see Chapter 34 by Paul Blokker in this volume. 23 Cháirez-Garza (2018). 24 Nair, ‘Partition and Minority Rights in Punjabi Hindu Debates, 1920–47’ 46 (52) Economic & Political Weekly 61; Gauba (2016), 39–40.

678  Research handbook on the politics of constitutional law Partition, the tone and substance of the CAD changed, and one area where this change was noticeable was on the question of citizenship. Prior to Partition, citizenship was accepted on ius soli (born on Indian soil) terms, but the discussion increasingly featured a descent-based idea of ius sanguinis citizenship where one has to increasingly prove one’s lineage.25 While the text adopted included a ius soli clause, and some Partition-specific clauses, there was also an inclusion of a ‘notwithstanding’ clause that deferred questions of citizenship to be settled by ordinary law. Here is Article 11 of the Constitution: Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.

What ordinary law the representatives and drafters had in mind is a matter of speculation – it could be bilateral treaties negotiated by the government and then ratified by Parliament, or it could be ordinary national legislation; it is likely that the Constituent Assembly felt that subsequent legislative assemblies would not dramatically differ in composition and ideology.26 In any event, Indian citizenship effectively became a legislative rather than constitutional question; as one scholar puts it, ‘what does the Constitution say about citizenship? The answer: nothing.’27 One of the members of the CAD pointed out that the exercise of this power by the parliament would amount to an amendment of the constitution, and sought to introduce language to reflect this point,28 but it appears this suggestion did not go very far. This constitutional deference to ordinary law by way of deferral meant the continuity of British colonial legislation on citizenship that had not been expressly repealed, as well as allowing subsequent governments to decide on who an Indian citizen is. Ramnath observes: ‘Unlike in Sri Lanka or Myanmar, neighbouring South Asian countries that also gained independence from British rule in 1948 and introduced dedicated citizenship legislation in the same year, India’s legislation – the Citizenship Act – did not come into force until 1955, a legislative process over which the Partition cast its long shadow.’29 The Citizenship Act 1955 was the first major piece of legislation, that put in place a process for updating the official NRC containing the names of Indian citizens, among other provisions. Subsequent amendments were also related to the long shadow of Partition and the communal nationalism it entailed, such as during the formation of Bangladesh, and as we will show in this chapter, the 2019 amendment by way of the CAA mobilised sentiments that were birthed during the Partition. The deferral of citizenship law to the legislative process means that unrepealed colonial legislation on citizenship is also in play; as we will see below the pre-constitutional Foreigners Act 1946 has played a crucial role.

Chatterji (2012), 1053; Ramnath (2021), 154. By way of an analogy, commentators have queried whether the notwithstanding clause in Canada’s Constitution Act 1982 remains defensible given a global rise in populism. Mailey (2019). 27 Bhatia (2022). Available at: https://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​=​3565551. On the issue of citizenship, the constitution of India is at best quite ‘thin’, which prompts an admixture of legislation to fill in the gap, as Paul Craig points out in Chapter 37 of this volume. Space constraints prevent exploring the general idea on how thin provisions may dilute ‘thick’ constitutions. 28 Suggestion by Naziruddin Ahmed, discussed in Roy (2022), 108. 29 Ramnath (2021), 154. 25 26

Hindu Zion: the politics of constitutional accommodation  679 1.2

The Formation of Bangladesh, Foreigners Act, and CAA

A major political event was the secession of East Pakistan from Pakistan, and the creation of Bangladesh in 1971. This brought a new set of migration-related issues, primarily refugees from East Pakistan who found themselves in the Indian state of Assam. Per the Bangladesh-India Accord 1971, there was an agreement to avoid stateless citizens. The presence of Bengali speaking refugees30 in Assam prompted mobilisation by regional political parties in the decade that followed to protect Assamese culture along ethnic and linguistic lines.31 In response, the Congress-led central government put in place the Citizenship (Amendment) Act 1985. Per this Act, migrants who came between 1966 and 1971 were struck off the electoral rolls, and asked to wait ten years before applying for citizenship; and those who came after 1971 were simply deemed to be illegal immigrants. It may be noted that a person could simply be deemed to be illegal, which prompted preventive detention. This was primarily because of the operation of the Foreigners Act, 1946. Under the Act, a foreigner is defined as ‘a person who is not a citizen of India,’ and the burden of proof in establishing citizenship status lies on the person apprehended (Section 9); furthermore, ‘any police officer may take such steps or use such force … necessary for securing compliance’ (Section 11). Under the Act, several Foreigners Tribunals were set up.32 In order to alleviate the draconian nature of this legislation, the Congress government had enacted the Illegal Migrants (Determination by Tribunal) Act, 1983 which placed the burden of proof in determining that that a person was an illegal migrant upon the government. The number of cases decided by the tribunal were few, and it was the burden of proof provision that was arguably responsible for the low numbers.33 However, this Act was challenged in a public interest litigation before the Supreme Court and was struck down due to the process being difficult, administratively time-consuming and cumbersome.34 Thus, the Foreigners Act and the paradigm of ‘citizens need to prove themselves’ to be included in the NRC still stands;35 this was facilitated by the ‘D-voter’ or Doubtful Voter category, which featured in the Assamese electoral rolls in 1997.36 Thus, even before the BJP came into power at the centre, we have a constitution with a deferral clause, a legislative framework comprising colonial legislation against foreigners, legislation that allows state governments to put in place rules to update the NRC, and a federal system where the politics of border states influences central legislation. As discussed earlier, one of the electoral promises of the BJP both centrally and in Assam was to enact citizenship policy that would weed out infiltrators. This was suddenly and quickly mobilised before Narendra Modi sought to be elected for a second term, which hastened the process leading to the Citizenship (Amendment) Act 2019 and putting in place a court-driven

Ranjan notes that in Assam and in border-states, ‘the terms immigrants, migrants and refugees are used interchangeably because the official status granted to such categories of the population by the Indian state has kept on changing. At the local level, these people are called bohiragoto (outsiders), bideshi (foreigners), invaders, Bengali peasantry and land grabbers, among others.’ Ranjan (2019), 3. 31 For an account of the private and political institutions that supported the rise of the BJP in Assam, see Saikia (2020). 32 For a discussion, see Rahman (2020). 33 Ibid, 117. 34 Sarbananda Sonowal v. Union of India [2005] 5 SCC 665. 35 Sharma [forthcoming]; Punathil (2022). 36 See Siddique (2019). 30

680  Research handbook on the politics of constitutional law bureaucratic process to update the NRC in Assam.37 The publication of NRC in August 2019 excluded 1.9 million persons in Assam from the list of citizens. The Citizenship Amendment Act, adopted by the Parliament in December, 2019, offers citizenship to Hindu, Sikh, Jain, Christian, Parsi or Buddhist refugees from Bangladesh, Afghanistan and Pakistan, on the condition that they have lived in India for six years and entered the country by December 31, 2014. The CAA does not contemplate the possibility of a Muslim refugee, which garnered international attention in the wake of the Rohingya crisis.38 Central to the NRC and the CAA is their expressive role in BJP’s discursive construction of a Hindu state, as will be discussed in the following section. And that too a certain type of Hindu – Tamil-speaking persecuted Hindus in Sri Lanka do not qualify, nor do Tibetan Buddhists.39 Such people do not satisfy the profile of the Partition idea of a homogenous Hindu. As we will see in Section 2, the CAA provided the discursive ammunition to the BJP to construct a Hindu state through reasoning on who is an Indian, who is not an Indian, and why we need India reterritorialised as a Hindu Rashtra. We will see in Section 3 that such discourse amounts to the construction of a Hindu Zion – an international refuge for Hindus. For now, suffice it to say that the CAA is the legislative core of BJP’s nationalist policy, that prompts mob justice such as lynching and reporting against ‘anti-national’ non-Hindu others.40 1.3

Benign Originalism in Constitutional Law Scholarship

The CAA and the construction of communal nationalism may be analysed in the light of constitutional theory. Constitutional law scholars have grappled with the idea of how a nationalist government can arise under an otherwise liberal constitution. Such a state of affairs may be explained by devaluation of the rule of law,41 constitutional death or when constitutions cease to endure,42 institutional compromises in divided societies,43 deferral to ordinary law at the time of constitutional design.44 In the Dixon-Ginsburg analysis of deferral, the motivations behind deferral could be understood as reducing decision costs or error costs – very often such deferral pertains to ‘qualifications of citizenship’ and ‘naturalisation conditions’.45 While decision costs are high in societies where political agreement is hard to achieve, error costs refer to the constitution framer putting in place permanent norms without knowing how they will play out. Deferring to a future body that has more information on the effects of a constitution on policy would reduce error costs. A combination of deferral and compromise is Hanna Lerner’s incremental approach to constitution-making, where ‘strategies such as avoidance of clear decisions, the use of ambivalent, vague legal language, or the inclusion of contrasting provisions in the constitution’ are used to enable deeply divided societies to enact a constitution

Kumar (2018). ‘“Shoot the Traitors”: Discrimination Against Muslims under India’s New Citizenship Policy’, Human Rights Watch Report (9 April 2020). Available at: https://​www​.hrw​.org/​report/​2020/​04/​09/​shoot​ -traitors/​discrimination​-against​-muslims​-under​-indias​-new​-citizenship​-policy. 39 Ramnath (2021), 167. 40 Narrain (2022), 145–55. 41 Kochenov & Grabowska-Moroz (2022). 42 Ginsburg (2011). 43 Choudhry (2008). 44 Dixon & Ginsburg (2011), ‘Deciding not to Decide: Deferral in constitutional design’ (2011). 45 Ibid, 660. 37 38

Hindu Zion: the politics of constitutional accommodation  681 ‘by deferring controversial choices regarding the foundational aspects of a polity.’46 Lerner applies the incremental approach to Indian constitution making, and finds it characterised by a ‘constructive ambiguity’ in provisions on a national language and unification of personal laws.47 Given ‘linguistic and religious’ issues were characterised by intense disagreement, it made sense to defer the choice of national language and whether to adopt a universal civil code for personal laws to ‘future political institutions.’48 Lerner also observes that ‘during the years of the drafting process the leaders of the Indian Constituent Assembly continued to believe that the partition was provisional.’49 Applying the Dixon-Ginsburg framework and extending Lerner’s analysis to citizenship, it may be argued that if the drafters indeed felt that the Partition was provisional, then deferral to a future political institution made sense to reduce error-costs of lawmaking for a post-Partition world. From the statements by Ambedkar who drafted the notwithstanding clause, this appears to be the case: ‘They [members of the CAD] must not understand that the provisions that we are making for citizenship on the date of the commencement of this Constitution are going to be permanent or unalterable. All that we are doing is to decide ad hoc for the time being.’50 It may well be that the long arm of the Partition in the prevalence of religious state-building could not have been anticipated (akin to how the potency of a Directive Principle on prohibition of cow slaughter could have been misjudged, as we see below), which might explain why the leaders postponed crucial decisions on citizenship.51 This confidence in the temporal nature of Partition-based concerns, and faith in future parliaments to populate provisions on citizenship in line with the values of liberal constitutionalism, finds counterintuitive support in the fact that communal nationalist members of the Constituent Assembly sought precise provisions on citizenship in the constitutional text.52 It appears that the communal nationalists saw their participation in the CAD as an opportunity to seek the construction of India as a Hindu state rather than a secular one53 – this opportunity may not have returned once the fires of the Partition had diminished. In addition to the speculation that Partition-related concerns might be temporary, it appears that combating these nationalist views proved to be difficult for Nehru and Ambedkar54 – deferral might have been the only way out. The prevalence of the Partition and the seepage of colonial legislation into ordinary law via a notwithstanding clause on citizenship are all but ignored in current leading accounts of Indian constitutionalism.55 Other than the specific concern of citizenship, communal tension in the Constituent Assembly was diffused through the inclusion of communal nationalist elements, such as the

Lerner (2010), 70. Lerner (2011), 109–51. 48 Lerner (2010) 77. 49 Lerner (2010) 76. 50 CAD, Part II, 10 August 1949. The text of the Constituent Assembly Debates are available at: https://​www​.constitutionofindia​.net/​constitution​_assembly​_debates. 51 For a nuanced account of tensions in the constitution drafting process, the liminal zone between the drafting and adoption, and the afterlife of the adoption of the constitution, see Chapter 9 by Mark Tushnet in this volume. 52 Primarily Deshmukh and Kapoor, whose views on constructing India as a Hindu state are discussed in Section 2. 53 For a discussion see Roy (2022), 97–109. 54 Roy (2019), 31. 55 Khosla (2020); Khaitan (2018). 46 47

682  Research handbook on the politics of constitutional law prohibition of cow slaughter in the Directive Principles of State Policy.56 The framers of the Indian constitution, akin to other postcolonial constitutions, were motivated by the importance of dealing with economic and social inequalities.57 During the CAD, there were discussions on whether non-justiciable socio-economic goals were merely ‘pious wishes’, but the incorporation appears to avoid constitutional silence on welfare.58 Given they are non-justiciable, they may appear to be mere ‘mission statements’59 without teeth. However, as Ambedkar clarified, though government ‘may not have to answer for their breach in a court of law’, they would ‘certainly have to answer for them before the electorate at election time.’60 Thus, while scholarly commentary has focused on how courts construe the relationship between directive principles and fundamental rights,61 the political potential of directive principles to prompt legislative action and executive policy at both central and state governments deserves our attention.62 The stress on the electorate by Ambedkar was prescient especially with respect to the political contours of Indian federalism: the provision on cow slaughter was mobilised by the Bharatiya Jana Sangh (the pre-cursor of the BJP)63 to prompt legislation in states64 while the Congress was still in power at the centre. This complemented atrocities in the name of Hinduism in states that eventually led to the BJP’s rise to central power.65 This unusual clause was the result of a political compromise.66 Members of the All-India Hindu Mahasabha supported by the heavily funded Anti-Cow Slaughter League had heavily lobbied the Constituent Assembly to introduce constitutional provisions to prohibit the slaughter of cows.67 Although the final version was watered down chiefly due to the efforts of Ambedkar,68 the presence of this clause within the directive principles that allowed political mobilisation in the states was of great significance. As Copland observes, ‘coming as it did some months before the formation of the Bharatiya Jana Sangh, the linear forbearer of today’s Bharatiya

Article 48 of the Constitution states: ‘The state shall endeavour to prohibit slaughtering and smuggling of cattle, calves and other milch and draught cattle. The state shall take necessary actions to control trade of cattle in livestock markets for purposes of inhuman slaughter.’ Singh observes: ‘The specific insertion of ‘prohibiting the slaughter of cows and calves’ in the constitution, as one of the directive principles of state policy, was an unmistakable reflection of the religious preferences and powers of the dominant upper caste Hindus among the constitution makers. This specific inclusion also meant the exclusion of the preferences of others for whom the cow did not signify what it did for some upper caste Hindu groups.’ Singh (2005), 917. 57 Bhatia (2016). 58 Khosla (2020), 52. 59 King (2013). 60 Speech by Ambedkar, cited in Khosla (2020), 54. 61 Baxi (1969); Bhatia (2015). Khaitan’s account as discussed below turns to the political shaping of the directive principles during the constitution making process (Khaitan 2018); this contribution focuses on the relationship between the formation and political mobilisation of one of the directive principles. 62 It may be noted that while Ireland was the primary inspiration behind such principles, the Irish constitution has Directive Principles of Social Policy, while the Indian constitution adapted them to Directive Principles of State Policy. 63 De (2019). 64 The banning of cow slaughter in states started shortly after the constitution was enacted, and in states where the BJP sought to establish power, beef ban was an important campaign. Jaffrelot (2017). 65 Sarkar & Sarkar (2016). 66 S.P. Sathe, ‘Cow-Slaughter: The legal aspect’ in Shah (1967), 70. 67 Copland (2017), 732–36. 68 Ibid, 735. 56

Hindu Zion: the politics of constitutional accommodation  683 Janata Party, the champions of Hindutva, the successful push for embedding cow protection in the Constitution represented the first substantial victory of the nascent Hindu right.’69 In the decades following the adoption of the constitution, the Directive Principle on prohibiting cow slaughter was mobilised for instituting a culture of communal nationalism in several states by way of pro-cow mass agitation70 and effect legislative change. During the adoption of the CAA and when the BJP was running for a second term, cow slaughter was the primary reference for lynching that characterised mob violence against minorities and dissenters.71 It may be that much like the notwithstanding clause on citizenship, the political use72 of non-justiciable directive principles was not foreseen when the constitution was drafted. But the fact that it was unusually there along with more obvious socio-economic provisions on education and environmental protection is evidence of accommodation of Hindutva in the constitution. Tarunabh Khaitan argues that there was expressive accommodation of dissenters in the constitutional text in the process of achieving consensus;73 Gandhians, socialists and cultural nationalists were placated through accommodation in the directive principles. Here a distinction is made between accommodation of ideological disagreement in constitutional expression, and accommodation of group interests through institutional design such as consociation and federalism.74 He argues that the text of the directive principles in the Indian constitution is an example of ideological accommodation, and he does not account for institutional accommodation. From the discussion on the mobilisation of the directive principle of cow slaughter above, we suggest that the directive principles provide power to state governments (and underlying lobby-groups) to inform laws. Expressive accommodation is therefore inseparable from institutional accommodation and the formation of a material constitution.75 Further, though Khaitan briefly mentions the Partition, he does not see this event as central to the specifics of India’s constitutional accommodation. He considers socialists, Gandhians and cultural nationalists as all equally competing ideological dissenters. However, communal nationalism was the predominant force against a liberal constitution that was created in the run up to and in the fire of the Partition. This is the primary political force that the drafters had to reckon with, and which prompted constitutional deferral on the citizenship clause, as well as inform the constitutional principles that shape policies made by states. Thus constitutional accommodation in our view cannot be separated into the institutional and the expressive, needs to be analysed in conjunction with other constitutional tools (such as deferral to ordinary law), and such analysis should resist the temptation of a benign constitutional originalism, in contrast with aberrant political developments. On the current political climate, Khaitan argues Ibid, 724. Baxi (1967), 354. Writing in 1967, Baxi argued in favour of expunging the cow-slaughter provisions from the constitution: ‘their elimination is surely justifiable both in terms of their constitutional origin as intra-party compromises which have outlived their utility and in terms of the need now , irrespective of their constitutional origins, of doing away with their constitutionally privileged position since they affect pursuit of such policies as are now felt both necessary and desirable. It is doubtful, to put it mildly, that their elimination will adversely affect the constitutionally desired social order.’ Baxi (1967), 363. 71 Narrain (2021), 145–55. 72 For an account of the political potency of the directive principles that undermines constitutional supremacy see Usman (2007). 73 Khaitan (2018). 74 Khaitan (2018), 394. 75 This argument is detailed in Roy (2021). 69 70

684  Research handbook on the politics of constitutional law that the Indian constitution appears to have suffered a constitutional death.76 This is contrasted against the liberal democratic constitution that was achieved through expressive accommodation. We wish to suggest that the current political climate is not symptomatic of constitutional death, but a mobilisation of a specific constitutional deferral on citizenship, and informed by constitutional accommodation of communal nationalism. In a similar vein as Khaitan, Madhav Khosla and Milan Vaishnav argue that India’s constitution has been undermined by the BJP government, and replaced by a new constitutionalism.77 This is in contrast with the origins of the Indian constitution; Khosla argues that the process of codification through rules via the Constituent Assembly was a true political event that ushered in a constitutional democracy by achieving a common understanding.78 Divisive groups based primarily on caste and religion were brought together in the achievement of a liberal constitution, and the text signified a break from India’s colonial heritage. In this account, Khosla discounts Lerner’s incremental approach to Indian constitutionalism given it focuses on personal laws and national language, and ‘does not explain the vast number of other choices.’79 However, without considering choices such as the deferral of citizenship to ordinary law and the political role of directive principles, Khosla argues that any disagreement leading to deferral may only take place ‘against the background of a common language’; the constitutional text brought ‘into being the actors and concepts that can make action and deliberation possible.’80 To our mind, the assumption that ‘a grammar of constitutionalism’ was forged by the Constituent Assembly without being deeply inflected by the political process of homogenised religious representation, is unmindful of how nation-making via the Partition bled into constitution-making. If we are to view the making of India’s constitution as a constitutional moment, it cannot be viewed independently of the Partition as a political event.81 Common to Khaitan and Khosla’s accounts is the idea that the creation of the constitution and its formative years is to be lauded, but India has subsequently lost its way. This contrast, to our mind, presents a normative vision of benign originalism, which has been diluted in an aberrant violent present. It is informed by a particular way of doing Indian constitutional historiography, where the constitution is ‘a product of consensus underwritten by nationalism,’ as Elangovan has argued.82 A contrasting view that we have suggested is that nation-making via the Partition bled into the constitution-making process, which undercut a romanticised common understanding and laid some of the groundwork for the rise of the populist Hindu right. We do not seek to dilute the violence of the current political climate, or shift the blame to agents other than the Modi-led BJP government. We also do not discount the possibility that the emergency instituted by Indira Gandhi between 1975 and 1977 put in place jurisprudential tools to facilitate authoritarianism.83 Further, we do not support the essentialist idea that India Khaitan (2020). Khosla & Vaishnav (2021). 78 Khosla (2020). 79 Khosla (2020), 69–71, and text of accompanying footnotes. 80 Ibid, 71. 81 Benhabib has argued that the form that a political event assumes does not appear out of the blue; it is the product of struggles and compromises – ‘violence, conquest, defeat, brute power and subjugation.’ Benhabib (1994), 14. 82 Elangovan (2014), 2. 83 Prakash (2019). However, as Prakash notes, the public mood during the Emergency was ‘sullen, not enthusiastic.’ This is in contrast with the current popular support for communal nationalism. For a discussion, see Narrain (2021), 144. 76 77

Hindu Zion: the politics of constitutional accommodation  685 has always been steeped in (some notion of) Hindu culture that cannot be overcome by legal fiat.84 Rather, we have shown that the current political climate has been constitutionally facilitated in the shadow of the Partition alongside the laudable efforts of key players to enshrine liberal values during the formation of the Indian constitution. Concurrently, given the current political climate is characterised by populist support of communal nationalism, constitutional provisions that may not have achieved a high level of notoriety earlier have been robustly mobilised under the aegis of the BJP government. This goes to explain why constitutional change is not necessary as the process of creating a Hindu state may be achieved through law.85 Central to this process is citizenship law, and accompanying political discourse on the Indian citizen, to which we now turn.

2.

THE DISCURSIVE CONSTRUCTION OF THE INDIAN AND THE HINDU RASHTRA

2.1

Discursive Shift in Constituent Assembly Debates

In her account on the construction of India via a centralised electoral process, Shani argues that Indians were first voters before they were citizens.86 While this is true doctrinally (citizenship legislation came into being after its first elections), it could also be said to be true discursively. The leaders of the Congress sought to create a state without nationality; according to Rajendra Prasad, the President of the Congress: Instead, therefore, of seeking a solution of the Indian problem in the creation of national states of Hindus and Musalmans, in each of which there will remain a considerable minority of the other community, is it not better to allow India to continue as an unnational state that she is and has been?’87

The depoliticisation of nationality was strategic: the Congress sought to legitimise a centralised order via a juridical and administrative machinery. However, it was argued in the earlier Section that the legal tools for nationalism were put in place via constitutional deferral on citizenship and the federal structure for mobilisation of communal nationalism through directive principles. In this Section we seek to show that the discursive tools for a nationalist state were chiseled in discourse on citizenship in the CAD after the Partition. These tools have recently been amplified and mobilised in discourse around the CAA. In this Section, we undertake a discourse analysis of legislative debates and discussions surrounding the policies on citizenship in the Indian constitution and the later CAA. We use techniques of social constructionist discourse analysis88 and rhetorical psychology.89 This entailed examining debates on

Perry Anderson’s account on Indian ideology tends to veer into such territory. For critique, see Chatterjee, Kaviraj, and Menon (2015). 85 Ahmed (2023) argues that political goals could well be achieved through constitutional subterfuge and appropriation. For a counterintuitive account of how seemingly extra-legal political aims are achieved through legal techniques, see the contribution by Anna Lukina in Chapter 38 of this volume. 86 Shani (2018). 87 Prasad (2010), 38–39. 88 McKinlay & McVittie (2007); Potter (1996). 89 Billig (1998). 84

686  Research handbook on the politics of constitutional law citizenship for how descriptions of India, Indians, and belonging in India construct particular versions that are used to propose and oppose legislations and policies about Indian citizenship 90 . We analyse these descriptions for how these construct the context as problematic for Hindus and provide citizenship legislation as a means to address these problems. The constructions of India, Indians, and belonging contribute to a reterritorialising of India via privileging citizenship of Hindus and non-Muslims over Muslims. The first draft proposal for constitutional provisions on citizenship was formulated by an Advisory Committee on Minorities and Fundamental Rights, and on 23 April 1947, the proposal simply read, ‘every person born in the Union or naturalised according to its laws and subject to the jurisdiction thereof shall be a citizen of the Union.’91 Citizenship here is constructed in simpler terms of having been born in the territory of the Union of India. This jus soli conception does not prioritise any other aspects of the individual. Defending this clause, members of the Committee argued that jus soli was the most ‘democratic’, ‘enlightened’ and ‘civilised’ model of citizenship found in the world;92 the committee had consulted several international precedents.93 However, as Partition was impending, the question of losing Indian citizenship was mooted. RK Sidhwa stated:94 I am born in Sindh. Supposing Sindh is not going to be part of the Union, what will be my position? Am I to lose my citizenship of the Union?’

Sidhwa complicates the simplicity in jus soli conception, given that Partition might mean that loss of citizenship in the Indian Union. This is accomplished by noting the change in the territorial status of ‘Sindh’, which would likely become part of Pakistan. Questions like this, which challenged a taken-for-granted understanding of Indian citizenship in the context of the Partition, led to an impasse; and discussion on citizenship was postponed.95 It was taken up again in 1949, after India’s independence, and the violence of the Partition. Now the objection was not on the material question of losing citizenship of those who had migrated to Pakistan, but what it means to be an Indian. PS Deshmukh said:96 We have seen the formation and establishment of Pakistan. Why was it established? It was established because the Muslims claimed that they must have a home of their own and a country of their own. Here we are an entire nation with a history of thousands of years and we are going to discard it, in spite of the fact that neither the Hindu nor the Sikh has any other place in the wide world to go to. By the mere fact that he is a Hindu or a Sikh, he should get Indian citizenship because it is this one circumstance that makes him disliked by others. But we are a secular State and do not want to recognise the fact that every Hindu or Sikh in any part of the world should have a home of his own. If the Muslims want an exclusive place for themselves called Pakistan, why should not Hindus and Sikhs have India as their home?97 90 On the discursive construction of ‘who is an Indian’, ‘who is not an Indian’ and ‘who should be an Indian’, see Sambaraju & Roy (2022). 91 CAD III, 23 April 1947. 92 CAD III, 29 April 1947. 93 Chatterji (2012) 1053. 94 RK Sidhwa was elected to the Constituent Assembly on a Congress ticket from the Central Provinces & Berar. 95 Chatterji (2012) 1054. 96 Dr P.S. Deshmukh was elected to the Constituent Assembly from Central Provinces & Berar. 97 CAD IX, 11 August 1949.

Hindu Zion: the politics of constitutional accommodation  687 And according to Jasprity Roy Kapoor:98 Once a person has migrated to Pakistan and transferred his loyalty from India to Pakistan, his migration is complete. He has definitely made up his mind at that time to kick this country and let it go to its own fate, and he went away to the newly created Pakistan, where he would put in his best efforts to make it a free progressive and prosperous state.99

What we see from the above is that discussions on citizenship in the CAD take on a notably different tone and content: discourse on the religious composition of the two states were brought in to characterise Indian citizenship. Importantly, in contrast with the ‘unnational’ and inclusive conception of citizenship in the earlier discussions, citizenship post-Partition is very much about nationalism and loyalty. Unlike the pre-Partition discussion, the post-Partition CAD involves construction of who is an Indian, what is their relationship to India, and the reciprocal rights and duties of the Indian state with regard to those migrating. However, the final text of the section on citizenship in the constitution does not mention religion or ethnicity. Ambedkar explicitly chose to discount these perspectives in the adoption of the final text, though they were mooted, citing ‘International laws’ and ‘International justice’.100 It is only with the CAA 2019 that religion is explicitly mentioned in legislation on citizenship. We now turn to legislative debates on the CAA to get a sense of how citizenship allowed for the discursive reterritorialisation of India as a Hindu nation. 2.2

Parliamentary Constructions of Communal Citizenship

The role of religion in citizenship as proposed for the CAA was debated in the Lok Sabha101 at two instances: first on 8 January 2019 and second on 9 December 2019. Below S.S. Aahuliwalia, the then Minister of State for Electronics and Information Technology Minister offers religion as a plausible basis for citizenship. Sir, why was Pakistan created? They wanted a country where only the people practicing Islam would reside.

Above, Aahuliwalia offers a rhetorical question about the formation of Pakistan, to which he proceeds to give a response. Of note is that Aahuliwalia offers one reason for the formation of Pakistan based on religious territorialisation. This reason constructs the formation of Pakistan as intentional in wanting to create a religious state. In giving the response himself, without citing others or any source, Aahuliwalia treats it as readily known that Pakistan was created as a country for Muslims alone. Below, Ms Meenakshi Lekhi102 speaking on 9 December 2019 offers a similar reason as above for transforming India into a religious state.

Jasprity Roy Kapoor was elected to the constituent assembly from Uttar Pradesh General. CAD IX, 11 August 1949. 100 CAD IX, 11 August 1949. 101 The text of the Lok Sabha debates are available at: http://​164​.100​.47​.194/​Loksabha/​Debates/​ Debatetextsearch16​.aspx. 102 Meenakshi Lekhi is a Member of Parliament from New Delhi constituency for the Bharatiya Janata Party. 98 99

688  Research handbook on the politics of constitutional law Speaker Sir, I was counting some countries to see how many countries there are that have Islam as their state religion. I was shocked to see that there are 46. I was counting to see how many countries have Christianity as their state religion, there are around 40. I was counting how many countries have Hinduism as their state religion and I couldn’t even find one. I’m saying this because it is easy to cite UNHCR data but it is harder to contextualize it.

Lekhi’s descriptions work to show the absence of any country with Hinduism as their state religion. Instead, she declares the presence of several nations that have Islam or Christianity as their state religion. This contrast involves similar reasoning as Aahuliwalia for the formation of a state. Lekhi offers these claims in the context of the issues for refugees fleeing religious persecution, Lekhi develops inferences around possibilities, or limitations, for Hindus who are persecuted to seek refuge. The concern of where persecuted Hindus should seek refuge is raised by Mr Bhartruhari Mahtab103 in another occasion in the same debate. I am of that opinion and my party also stands by that. Where would the minorities of those neighboring countries go other than India?

Mahtab offers an agreement, voiced on behalf of his party, with the CAA. The question is heard as rhetorically providing a response contained within it. Mahtab offers India as the sole safe haven for those minorities arriving from countries ‘neighbouring’ India. Below Ms Locket Chatterjee104 locates the desire for India’s transformation into Hindu Rashtra among persecuted Hindu refugees. But when a minority is persecuted in any Islamic country, he immediately thinks about India. Bharat is the only country, which can save these refugees. That is why in their hearts it is that Bharat will become the only Hindu Rashtra.105

Similar to Mahtab, Chatterjee treats India as a safe haven for those who are persecuted for their religion in Islamic countries. Specifically, she attributes to them a desire to come to India for safety. These claims are made out as factual and objective on the one hand, and as originating in the refugees’ inner emotional states – hearts – on the other hand. The former treats India as unique and bound to saving a particular type of refugee: those who are fleeing religious persecution in Islamic countries. The latter is ascribed to those fleeing religious persecution and thus counters possible claims that the formation of Hindu Rashtra is in the service of BJP itself. Overall, Chatterjee develops the claim that India is ideally suited and duty bound to care for Hindu refugees fleeing religious persecution in Islamic countries. This far, we have seen how Members of Parliament treat CAA as necessary for protection of Hindus fleeing religious persecution. Speakers legitimise the transformation of India into a religious state for such a purpose. Below, Ms Vijaya Chakraborty106 offers another rationale for the CAA, which is to protect Hindus within India from non-Hindu others. Bhartruhari Mahtab is a Member of Parliament from Cuttack, Orissa from the Biju Janata Dal Party. 104 Locket Chatterjee is a Member of Parliament from Hooghly, West Bengal from the Bharatiya Janata Party. 105 Translated from Hindi; translations are our own. 106 Vijaya Chakraborty is a Member of Parliament from Gauhati, Assam from the Bharatiya Janata Party. 103

Hindu Zion: the politics of constitutional accommodation  689 Sir, the population of the illegal migrants grows geometrically. A family of a migrant has six to seven persons. The woman of a migrant family gives birth to minimum six to seven children and maximum the number can vary from ten to twelve. The woman of the family goes on giving birth to children till the time she no longer is able to give birth to children. Although it is not nice on my part to say this but I am saying it. Steep rise in population of the migrant families is the root cause for dwindling Hindu population in the State of Assam … (Interruptions) Under the present circumstances, this Bill comes as a saviour to the people of the North-Eastern region, especially for the State of Assam.

Chakravarty attributes to ‘illegal migration’ problems for ‘Hindu population’ in Assam. This is done by descriptions of migration and migrant birthing practices in extremely problematic ways. Overall, she achieves an ethnicisation of ‘illegal migrants’ by treating their offspring as similarly ‘illegal’ or ‘migrants’. First, she characterises ‘illegal migrants’ as those who engage in extreme reproductive practices: ‘geometrical’ and ‘six to seven children and maximum the number can vary from ten to twelve’. Second, she ascribes to the ‘woman of the family’ strange and problematic features of continuing to give birth to children until she no longer is able to. In doing so, she characterises immigrant women as only having the purpose of producing children. She summarises the outcome of such activities as leading to a ‘dwindling Hindu population in the State of Assam’. Overall then Chakraborty constructs this ethnic ‘illegal migration’ as causing problems for another ethnic community. It is in this context that the CAA is treated as ‘a saviour’. What is interesting here is treating those who need saving as Hindus and autochthonous to the North-Eastern region: ‘the people of the North-Eastern region’. These are in contrast to the othered ‘illegal migrants’ disturbing this autochthony. The CAA is then seen as a means to restore this natural belonging of Hindus to their land. The above analyses show that relating citizenship to religion in debates in CAD post-Partition and CAA in 2019 involved exclusionary versions of India. In both instances, religious reference is made not only to privilege one religion over another, rather to transform India into a Hindu state that ostensibly might accommodate members of non-Muslim religions. This particular version of India acquires the status of law via constitutional accommodation as discussed in Section 1.

3.

THE IDEA OF A HINDU ZION

What we see above is the discursive construction of a Hindu state via citizenship law. From the statements of the parliamentarians above, India’s communal nationalism is premised on contrasting India against Islamic states, but its raison d’être seems to be akin to states premised on the centrality of a religious community. Shashi Tharoor, former under-Secretary General of the United Nations and currently member of the opposition Congress party, observed on the CAA: ‘You cannot say that you reject Pakistan while advocating the same logic as Pakistan.’ Other than Pakistan, Israel was brought into the discussion. Before tearing up a copy of the CAA in the Lok Sabha, Asauddin Owaisi107 argued:

107 President of the All India Majlis-e-Ittehadul Muslimeen, Member of Parliament, representing the Hyderabad constituency.

690  Research handbook on the politics of constitutional law You are giving citizenship on the basis of religion. Hindu, Sikh, Parsi, Christian – will you give on that foundation? You are equating India with Israel. There cannot be a bigger insult to this country than what we are seeing … It is against the basic structure of Kesavanand Bharati [the Supreme Court case that found a basic structure of the constitution premised on fundamental rights that cannot be amended by legislation], against secularism, and this government is making a mistake.108

Once Pakistan and Israel are invoked as comparisons, it is difficult to escape Faisal Devji’s seminal Muslim Zion.109 Devji shows that the impetus to create an international refuge for a religious community was central to the almost simultaneous creation of Israel and Pakistan. The formation of both these states fed into each other via institutional exchange and discursive commonalities.110 In this Section we wish to test the strength and nuance of this analogy. To do so, we first set out Devji’s argument, and based on the analysis in the preceding Sections argue that India is now effectively a Hindu Zion, but with distinct properties. In Muslim Zion, Devji is interested primarily in political discourse on legitimising Pakistan: ‘I am interested in the forms of argumentation and lines of reasoning that both transcend and survive such intentionality [of individual agents] to shape the prose of history.’111 Here he finds stark similarities between the formation of Pakistan and Israel: (i)

Idea of a Communal Nation rather than a State: Pakistan and Israel mobilised Islam and Judaism respectively as justificatory tools of nationalism. This is what allows both states to be invented via a political process. They cannot be explained by specific material interests of individual agents who mobilised the discourse in favour of a polity. Further, the idea of the nation does not derive its legitimacy from the proper functioning of a state. As Devji argues, Pakistan and Israel constitute ideal forms of the Enlightenment state, more so than the settler states of the New World or their imitators in the Old. And they do so because whatever emphasis is put upon the land these minority nations have won, both countries debate and resolve their nationality by a question that in effect divests the nation of its state: who is a Jew and who a Muslim? This question, of as much concern to the constitutional lawyer as the passionate sectarian, takes the debate on Pakistani or Israeli nationality back to the Enlightenment’s myth of political consent, when a people is converted to nationhood by the force of its idea alone.’112

(ii) Downplaying of historical claims to territory: For Pakistan and Israel, religion is not a supplement to geography, but its replacement.113 Devji points to how Argentina and Kenya were considered as homeland options by the early Zionists.114 Pakistan initially comprised two detached territories on the west and east of the India (the latter became Bangladesh), and literally laid claim to a territory which had a different name till its founding. The two states discounted history and geography, and amplified the idea of

Translated from Hindi; translations are our own. Devji (2013). 110 Devji points to how leaders of both states were in conversation with Gandhi for instance, and how the founders of Pakistan were inspired by literature on Zionism. 111 Ibid, 9. 112 Ibid, 48. 113 Ibid, 47. 114 Ibid, 23. 108 109

Hindu Zion: the politics of constitutional accommodation  691 a homeland that made the nation-state necessary. Pakistan defined itself in ways that were the opposite of the narratives adopted by Indian leaders at the time of independence: historical recovery, ‘the naturalistic language of a people’s territorial and historical unity,’ the cosmopolitan state prepared to participate in a regional federation. (iii) Refuge for an international religious community: Both states sought to provide a safe haven for an international religious community – a zion. The core idea of Pakistan expressed by Mohammad Ali Jinnah, the president of the All-India Muslim League and the first Prime Minister of Pakistan, is found in his view that Pakistan is analogous with Israel in that Pakistan would provide a home for Muslims who are comparable ‘to the Jews who are scattered all over the world.’115 Devji notes: ‘it was probably the conception of Jews as a global community, rather than a regional minority or even a nation, that made it such an attractive mirror for the [Muslim] League’s spokesmen.’116 (iv) An external threat: With some dismay Devji notes that Pakistan’s ‘popular as well as academic histories are circular and so unchanging in character’ as they are dismissive of civilian governments, and much like Israel, perpetuate a narrative of ‘living under a continuous existential threat.’117 Both states legitimise their investment in military capacity and strong executive action by reference to a single external aggressor, whose people do not have natural claims to citizenship. At first glance, comparing India with Israel and Pakistan appear to be both constitutionally and politically misplaced. India has the word ‘secular’ in its constitution, there is no new geographical territory for Hindus, no significant demographic changes since independence, and importantly, no new constitution (or major constitutional amendment). Having said that, it has been argued in this paper that a nationalist force has been constitutionally accommodated and mobilised, there has been a discursive reterritorialisation of Indian territory into a Hindu Rashtra, and at the very least a symbolic demographic change in favour of Hindus and against Muslims brought about by the CAA and the NRC. Importantly, there has been the construction of an international Hindu people, which necessitates a Hindu state. Thus, India satisfies properties (i), (iii) and (iv) of Devji’s analytical framework in Muslim Zion. The difference is primarily with respect to the second characteristic – unlike the downplaying of territory in Pakistan and Israel, a reterritorialised India is of central importance. Further, already existing colonial and constitutional laws play a compelling role in such reterritorialisation. What we see in India today is a combination of the ‘accommodated’ narrative of the naturalistic language of communal citizenship prevalent around the time of Independence, and the narrative of the state that comes into being to facilitate an international homeland for Hindus that are scattered in other countries. It is thus a narrative of reterritorialising India as a homeland for Hindus, and recovery of its naturalistic Hindu self. A modified Zion – one with the support of a rewritten territory.

Ibid, 18. Ibid. 117 Ibid, 244. 115 116

692  Research handbook on the politics of constitutional law

4. CONCLUSION In this chapter we offer reterritorialisation as a novel conceptualisation of India’s transformation into a Hindu state. We show that legislative discourse on citizenship is central to this transformation. This discourse has been facilitated by constitutional accommodation of communal nationalism in the Indian constitution. Such accommodation has occurred by way of a constitutional deferral of provisions on citizenship to the legislature, coupled with the political mobilisation of some Directive Principles of State Policy. This process took place in the shadow of the Partition, where communal nation-building informed the process of constitution-making. Such constitutional accommodation was capitalised on by the current BJP government to make citizenship law that excluded Muslims by privileging Hindus. In the discourse surrounding this law, we see the construction of a Hindu state as a haven for Hindus persecuted in Islamic states. We contrast these constructions against the discourse by which Israel and Pakistan were constructed, with specific reference to Devji’s account of Muslim Zion. The construction of India as a Hindu State has parallels with Devji’s account, specifically in imagining the state as a Zion that provides refuge and protection to a Hindu people. Unlike Devji’s account of Israel and Pakistan as freshly imagined theocratic states with new territories, India’s reterritorialisation as a Hindu state is occurring through a communal discourse on citizenship accommodated by the Indian constitution.

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Hindu Zion: the politics of constitutional accommodation  693 Copland, Ian. (2017). ‘Cows, Congress, and the Constitution: Jawaharlal Nehru and the making of Article 48,’ South Asia: Journal of South Asian Studies 40: 723–43. De, Rohit. (2019). ‘Cows and Constitutionalism,’ Modern Asian Studies 53: 240–77. Devji, Faisal. Muslim Zion: Pakistan as a political idea (Harvard University Press, 2013). Dixon, Rosalind & Tom Ginsburg. (2011). ‘Deciding not to Decide: Deferral in constitutional design,’ International Journal of Constitutional Law 9: 636–72. Elangovan, Arvind. (2014). ‘The Making of the Indian Constitution: A Case for a Non-nationalist Approach,’ History Compass 12: 1–10. Filkins, Dexter. ‘Blood and Soil in Narendra Modi’s India,’ The New Yorker (9 December 2019) 36–50. Gauba, Kanika. (2016). ‘Forgetting Partition: Constitutional amnesia and nationalism,’ Economic and Political Weekly 51(39): 41–47. Ginsburg, Tom. ‘Constitutional Endurance’ in Tom Ginsburg and Rosalind Dixon (eds) Constitutional Endurance (Edward Elgar 2011). Jaffrelot, Christophe & Gilles Verniers. (2020). ‘The BJP’s 2019 Election Campaign: Not business as usual,’ Contemporary South Asia 28: 155–77. Jaffrelot, Christophe. (2017). ‘India’s Democracy at 70: Toward a Hindu State?,’ Journal of Democracy 28: 52–63. Jaffrelot, Christophe. Modi’s India: Hindu nationalism and the rise of ethnic democracy (Princeton University Press, 2021). Jaffrelot, Christophe. Hindu Nationalism: A reader (Princeton University Press, 2015). Kannabiran, Kalpana. Tools of Justice: Non-discrimination and the Indian constitution (Routledge, 2012). Khaitan, Tarunabh. (2018). ‘Directive Principles and the Expressive Accommodation of Ideological Dissenters,’ International Journal of Constitutional Law 16: 389–430. Khaitan, Tarunabh. (2020). ‘Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India,’ Law & Ethics of Human Rights 14: 49–95. Khosla, Madhav. India’s Founding Moment: The Constitution of a Most Surprising Democracy (Harvard University Press, 2020). Khosla, Nadhav & Milan Vaishnav. (2021). ‘The Three Faces of the Indian State,’ Journal of Democracy 32: 111–25. King, Jeff. ‘Constitutions as Mission Statements’ in Denis J. Galligan & Mila Versteeg (eds) Social and Political Foundations of Constitutions (Cambridge University Press, 2013). Kochenov, Dimitry Vladimirovich & Barbara Grabowska-Moroz. ‘Constitutional Populism versus EU Law: A Much More Complex Story than You Imagined’ in Martin Krygier, Adam Czarnota & Wojciech Sadurski (eds) Anti-constitutional Populism (Cambridge University Press, 2022). Kumar, Alok Prasanna. (2018). ‘National Register of Citizens and the Supreme Court,’ Economic and Political Weekly 53: 10. Lerner, Hanna. (2010). ‘Constitution-writing in Deeply Divided Societies: The incrementalist approach,’ Nations and Nationalism 16: 68–88. Mailey, Richard. (2019). ‘The Notwithstanding Clause and the New Populism,’ Constitutional Forum 28: 9–18. McKinlay, Andy & Chris McVittie. (2007). ‘Locals, incomers and intra-national migration: Place-identities and a Scottish island,’ British Journal of Social Psychology 46: 171–90. Menon, Nivedita. ‘Perry Anderson and the British Ideology’ in Partha Chatterjee, Sudipta Kaviraj & Nivedita Menon (eds) The Indian Ideology – Three responses to Perry Anderson (Permanent Black, 2015). Nair, Neeti. (2011). ‘Partition and Minority Rights in Punjabi Hindu Debates, 1920–47,’ Economic & Political Weekly 46: 61–69. Nair, Neeti. Changing homelands: Hindu politics and the partition of India (Harvard University Press, 2011). Nakamizo, Kazuya. ‘Democracy and vigilantism: The spread of Gau Rakshaks in India’ in Minoru Mio, Kazuya Nakamizo & Tatsuro Fujikura (eds) The Dynamics of Conflict and Peace in Contemporary South Asia (Routledge, 2020). Narrain, Arvind. India’s Undeclared Emergency: Constitutionalism and the politics of resistance (Thompson Press, 2022).

694  Research handbook on the politics of constitutional law Oberoi, Harjot. The Construction of Religious Boundaries: Culture, identity, and diversity in the Sikh tradition (Oxford University Press, 1994). Potter, Jonathan. Representing reality: Discourse, rhetoric and social construction (Sage, 1996). Prakash, Gyan. Emergency Chronicles: Indira Gandhi and Democracy’s Turning Point (Princeton University Press, 2019). Prasad, Rajendra. India Divided (Penguin Books, 2010). Punathil, Salah. (2022). ‘Precarious citizenship: Detection, detention and “deportability” in India,’ Citizenship Studies 26: 55–72. Ramnath, Kalyani. (2021). ‘Histories of Indian Citizenship in the Age of Decolonisation,’ Itinerario 45: 152–73. Ranjan, Amit. (2021). ‘National Register of Citizen Update: History and Impact,’ Asian Ethnicity 447–63. Roy, Anupama. (2019). ‘The Citizenship (Amendment) Bill, 2016 and the Aporia of Citizenship,’ Economic and Political Weekly 54: 28. Roy, Anupama. Citizenship Regimes, Law and Belonging: the CAA and NRC (Oxford University Press, 2022). Roy, Suryapratim. (2021). 'Constitutive Reasons and Consequences of Expressive Norms,' International Journal of the Semiotics of Law 34: 389 - 408. Saikia, Smitana, (2020). ‘Saffronizing the Periphery: Explaining the rise of the Bharatiya Janata Party in contemporary Assam,’ Studies in Indian Politics 8: 69–84. Sambaraju, Rahul & Suryapratim Roy. (2022). ‘“If Hindustan will not care for Hindus, where will they go?”: Imagined territory and constructions of Indian citizenship,’ PsyArXiv Preprint, available at: https://​psyarxiv​.com/​vc76w/​ Sarkar, Radha & Amar Sarkar. (2016). ‘Sacred Slaughter: An Analysis of Historical, Communal, and Constitutional Aspects of Beef Bans in India,’ Politics, Religion & Ideology 17: 329–51. Sathe, S.P. ‘Cow-Slaughter: The legal aspect’ in Shah, A.B. (ed) Cow-Slaughter: Horns of a Dilemma (Lalvani Publishing, 1967). Sen, Shameek & Shouvik K. Guha. (2022). ‘The Struggles of the Indian Constitution in the Face of Autocratic Legalism: Constitutionalism at Crossroads?,’ Federal Law Review 50: 275–91. Shani, Ornit. How India became Democratic: Citizenship and the making of the universal franchise (Cambridge University Press, 2018). Sharma, Chetna. (2022). ‘National Register of Citizens Assam, India: The Tangled Logic of Documentary Evidence,’ Journal of Immigrant & Refugee Studies [forthcoming]. Siddique, Nazimuddin. (2019). ‘Discourse of Doubt: Understanding the crisis of citizenship in Assam,’ Economic and Political Weekly 54: 25. Singh, Pritam. (2005). ‘Hindu Bias in India’s “‘Secular” Constitution: probing flaws in the instruments of governance,’ Third World Quarterly 26: 909–26. Subramanian, Samanth. ‘How Hindu Supremacists are Tearing India Apart’, The Guardian (20 February 2020). Usman, Jeffrey. (2007). ‘Non-Justiciable Directive Principles: A Constitutional Design Defect,’ Michigan State Journal of International Law 15: 643–96.

37. The politics of constitutional meltdown Paul Craig

1. INTRODUCTION This chapter is concerned with the politics of constitutional meltdown. The concept lacks a precise meaning, with the consequence that the terrain is potentially vast. Constitutional meltdown could embrace external challenge to the existing constitutional order, either through forces outside the state, or civil war. War is, as von Clausewitz aptly noted, the continuation of politics by other means. The ‘politics’ of constitutional meltdown thus conceived would then signify the motives for the external aggression, or civil war. This inquiry would, somewhat paradoxically, be uninteresting for the purposes of this chapter. There are multiple causes for invasion or civil war and in such instances the constitution is normally collateral damage, with the consequence that there would be little of interest if meltdown were conceptualised in such terms. The traditional constitutional order can, however, be shaken internally. This can occur in different ways. It may be driven by insurgent or opposition parties, which regard the undermining of the constitution as part of the strategy for gaining power, more especially where they contend that it does not promote the nation’s ‘real interest’, as exemplified by the rise of the Nazis in Germany. Constitutional meltdown can also be precipitated by government failure to contain domestic disorder, one consequence of which is that it violates the constitution to maintain power through a coup. There are also instances where constitutional meltdown is consciously undertaken by the governing party of the state to enhance its power. It raises interesting issues aplenty and is the focus of the ensuing discussion within the allotted space available. The analysis proceeds in four stages. The discussion begins with the proximate political strategy for such constitutional meltdown. This connotes the method used by those intent on undermining the existing constitutional order. If you are intent on doing so, what do you do and how do you do it. This leads to examination of democratic backsliding, and the ways in which an executive aggrandises power and emasculates the constitutional status quo. It is exemplified through events in Hungary and Poland. The focus then shifts to consideration of the underlying political imperative. Concern with the politics of constitutional meltdown cannot rest content with the political techniques used to impinge on the independence of the judiciary or the freedom of the press. We should press further to understand the political impulse and imperative that lies behind this. This is examined in two sections of the chapter, which consider respectively illiberal democracy and competitive authoritarianism, and the ways in which they underscore constitutional meltdown. The final section of the chapter considers the second order political consequences of constitutional meltdown. This captures the political ramifications of meltdown for institutional ordering outside the particular state, with the principal focus being on the EU. There are, as will be seen, two dimensions to this inquiry. We need to understand why constitutional meltdown in a Member State is important for the EU, and the techniques at its disposal for 695

696  Research handbook on the politics of constitutional law dealing with the conundrum. We must also press further and understand the broader political implications for the EU of continued membership by states that espouse illiberal democracy.

2.

CONSTITUTIONAL MELTDOWN: PROXIMATE POLITICAL STRATEGY

2.1

Democratic Backsliding, Constitutions and Constitutional Order

We begin with the proximate political strategy. It connotes the political method used by those intent on undermining the existing constitutional order. If the governing party wishes to emasculate the constitutional status quo, we are concerned with the chosen political strategy for attaining this end. There is, self-evidently, no single political technique. This is politics, not some scientifically precise exercise. We can but exemplify what has transpired. This is nonetheless instructive, more especially because the inquiry reveals the subtlety for attaining the desired end. Hungary and Poland will be taken by way of example, situated within the frame of democratic backsliding. Constitutions are quintessentially part of the political order and cannot be hermetically sealed off from the institutions that sustain that order. Intentionally orchestrated constitutional meltdown is thus commonly part of the broader phenomenon of democratic backsliding. There is debate as to the extent to which democratic backsliding is generally applicable within Central and East European countries, and as to whether it is meaningful to aggregate all such instances within a single conceptual frame (Cianetti, Dawson and Hanley 2018; Cianetti and Hanley 2021). There is, however, no doubt that it is evident in certain prominent countries within this area. Bermeo furnished helpful guidance on this concept, noting that at its most basic it ‘denotes the state-led debilitation or elimination of any of the political institutions that sustain an existing democracy’, and that since there are many institutions that sustain democracy the term can embrace multiple processes (Bermeo 2016, 5). She, nonetheless, points to changes in the modality of backsliding. Election day fraud has been replaced by longer term harassment and manipulation. There have been fewer open-ended coups d’état of the kind common in the Cold War, and more ‘promissory coups’, whereby the coup is framed in terms of defence of democratic legality, coupled with a promise to restore full democracy as soon as possible, even if this is belied by reality. There has also been a decline in traditional executive coups, whereby there is wholesale suspension of the constitution and arrogation of power by the chief executive in one fell swoop, this being replaced by executive aggrandisement (Bermeo 2016, 10–11). Elected executives weaken checks on executive power one by one, undertaking a series of institutional changes that hamper the power of opposition forces to challenge executive preferences. Disassembling of institutions that might challenge the executive is done through legal channels, often using newly elected constitutional assemblies or referenda. Existing courts or legislatures may also be used, in cases where supporters of the executive gain majority control of such bodies. Indeed, the defining feature of executive aggrandisement is that institutional change is either put to some sort of vote or legally decreed by a freely elected official – meaning that the change can be framed as having resulted from a democratic mandate.

The politics of constitutional meltdown  697 The modality of backsliding in Hungary and Poland will be examined below. Before doing so, it is instructive to consider more generally the way in which it undermines the virtues of constitutional ordering. Ginsburg and Huq identify four such virtues (Ginsburg and Huq 2014). Constitutions generate legitimacy for the state; they channel political conflict through formal institutions rather than violence; they limit agency costs of government; and they facilitate the production of public goods. These constitutional attributes are jeopardised by democratic backsliding. Statal legitimacy generated by a constitution is undermined through the executive aggrandisement that is central to backsliding. Constitutions embody the horizontal structural attributes of the system, delineating the legislative, executive and judicial branches of government and their respective powers; they also commonly contain vertical provisions concerning the relation between citizen and state, as epitomised by rights-based protection against the government. The loss of independence, de facto and de jure, of key state institutions, such as courts, government agencies and the like, undermines the foundations on which the constitution was constructed and the legitimacy that is attendant thereon. The channelling function of constitutions is endangered through backsliding. Thus, mechanisms that lower the stakes of electoral defeat are important in managing political conflict, with the consequence that ‘if a constitution permits some stakeholders to dominate others after assuming office, those out of power lose any incentive to stay within the bounds of constitutional competition’ and ‘if the costs of losing office are too high, incumbents will respond by refusing to step down or otherwise seeking to entrench their political power’ (Ginsburg and Huq 2014, 122). The agency costs of government that prevent office holders from engaging in self-dealing can also be impacted through backsliding. Political term limits can, for example, be indirectly circumvented where those in power ensure that their appointees are entrenched in key positions, whether in courts or agencies, to preserve the longevity of the desired policy. This can also result from amendment to constitutional provisions, and laws made pursuant thereto, whereby tax and expenditure decisions are made to entrench the political status quo, or render it more difficult to change, even if there is change in the governing party. 2.2

Democratic Backsliding, Application and Exemplification

Democratic backsliding is evident in the undermining of the constitution in Hungary (Bánkuti, Halmai, and Scheppele 2012; Scheppele 2019). Rather than overnight breakdown, ‘democratic backsliding is a death by a thousand cuts, in which power-hungry executives slice away at fundamental institutional checks and balances in ways that ultimately distort pluralism and political competition’ (Cianetti and Hanley 2018, 66). During Hungary’s transition from communism in 1989–1990 the constitutional drafters sought to avoid a parliament in which small parties could not form stable majority coalitions, and also an entrenched constitution that would be too difficult to change. The election law thus favoured larger parties, and the new constitution could be amended by a single two-thirds majority of parliament (Bánkuti, Halmai, and Scheppele 2012, 138; Scheppele 2019, 211–12). The election law enabled the Fidesz party in 2010 to secure 68 per cent of the seats in Parliament based on 53 per cent of the vote, thereby giving it the required two-thirds majority to amend the constitution, which it did 12 times during its first year in office.

698  Research handbook on the politics of constitutional law This included removal of the constraint concerning the writing of a new constitution, and attacks on the judicial system. The Constitutional Court had for 20 years been an important check on government, and it was therefore important for the success of Fidesz initiatives that it should be disabled. The new Constitution duly provided that the governing party could nominate candidates to the Court, thereby obviating the need for multiparty backing. Fidesz increased the number of judges from eight to 15 and installed its loyalists in the new positions. It also limited the Court’s jurisdiction (Bánkuti, Halmai, and Scheppele 2012, 139; Scheppele 2019, 212), and by constitutional amendment repealed all Constitutional Court decisions prior to 1 January 2012, when the new constitution entered into force, with the result that precedent from earlier decisions could no longer be invoked in new cases (Bugarič and Ginsburg 2016, 73). There were, in addition, serious incursions on the independence of the ordinary judiciary (Sólyom 2015). The institutional challenge also had other dimensions. The Election Commission was brought under government control, and laws were enacted to curtail press freedom, which included the power to levy hefty fines on media outlets for, inter alia, failure to achieve ‘balanced’ news coverage (Surowiec and Štětka 2020). Fidesz loyalists were entrenched in all major institutional positions, including the Constitutional Court, Budget Council, National Judicial Office, State Audit Office, Public Prosecutor’s Office, and National Bank (Krekó and Enyedi 2018, 42). There have been analogous developments in Poland. A corruption scandal in 2004 tarnished the leftist coalition that had been in power hitherto. This was exploited by the PiS, led by Jarosław Kaczyński, who called for ‘a model of centralized power, resembling that which had existed under the previous regime, with more political control from the top and the curbing of more localized decision making’ (Przybylski 2018, 56). Kaczyński, chairman of PiS, eschewed a formal government position, but controls the legislative and governmental process from behind the scenes. He initiated change similar to that in Hungary. Laws were enacted that weakened freedom of assembly. The judicial system was undermined through, inter alia, the politicisation of the judges that sit on the National Council of the Judiciary, which selects judges, and through change that undermined the neutrality of the Constitutional Tribunal (Sadurski 2019). The PiS enacted statutes in blatant violation of the constitution and when the ‘Constitutional Tribunal struck them down, the government refused to publish the decisions of the Court and claimed that therefore the decisions had no legal effect’ (Scheppele 2019, 218). There have, in addition, been changes, legislative and non-legislative, designed to increase the role of political appointees in the country’s election-administration bodies, and other agencies (Przybylski 2018, 59). The fact that courts, and in particular constitutional courts, have been prominent targets in Hungary and Poland, and other countries such as Romania, should come as no surprise (Bugarič and Ginsburg 2016, 72; Bochsler and Juon 2020, 173). The power of constitutional courts to review the constitutionality of statutes was a bulwark against untrammelled governmental power, as forcefully exemplified by the Hungarian Constitutional Court, under the leadership of former chief justice László Sólyom (1990–98), and by the constitutional courts in Poland, Slovenia, Slovakia, and Romania in the post-communist era. They were clearly obstacles to the direction of travel desired by Hungary and Poland in more recent years. It is important at this juncture to note two related political features of these general developments that renders them especially problematic.

The politics of constitutional meltdown  699 There is, on the one hand, the fact that we ‘now face forms of democratic backsliding that are legitimated through the very institutions that democracy promoters have prioritised: national elections, voting majorities in legislatures and courts, and the “rule” of the laws that majorities produce’ (Bermeo 2016, 15). Challenging laws crafted by democratically elected executives and legislatures can be difficult, more especially when changes in the rules governing elections and the like in established democracies is not uncommon. There is, on the other hand, the fact that the constitutional assault is often quite skilful. This is in part because it is piecemeal. It is in part because the architects of such change can point to the fact that the modifications bear some analogy to the situation that prevails in established democracies. Thus, as Scheppele notes, legalistic autocrats commonly contend that their amendments or laws bear comparison with practice elsewhere, whether they relate to the number of judges on a Constitutional Court, their manner of appointment, the size of election districts, the existence or not of a bicameral legislature and the like. The consequence is that ‘these new legalistic autocrats talk the talk of constitutionalism while not walking the walk, which means that they run afoul of the dominant normative consensus in practice while appearing to honour it in theory’, with the intent of pulling up the ‘constitutional ladder after themselves so that no one else can win the next election’ (Scheppele 2019, 199, 201; Scheppele 2013; Scheppele 2018).

3.

CONSTITUTIONAL MELTDOWN: UNDERLYING POLITICAL IMPERATIVE – ILLIBERAL DEMOCRACY

3.1

Illiberal Democracy, Origins and Meaning

The discussion thus far has addressed the politics that underpin constitutional meltdown viewed from a proximate perspective, connoting the political mechanisms used to aggrandise executive power and undermine the constitutional status quo. The focus now shifts to consideration of the deeper political impulse that has driven such developments. The desire to embed the power of the governing party is clearly a consideration in this respect. It would, nonetheless, be mistaken to regard this as the sole factor. A plethora of considerations can be discerned, as attested to by the literature. Prior to 1989 there was considerable convergence between democratic aspiration and liberalism. The former dissidents who became leaders thereafter failed, however, to institutionalise pluralism in the form of lasting and viable political parties. Paradoxically the principal exception was Fidesz, which was transformed to become the conservative populist party that it is today. More recent years have witnessed the rise of populism and the decoupling of liberalism from democracy. This led to discourse on illiberal democracy, the term having been coined by Zakaria at the end of the previous millennium (Zakaria 1997). It is, however, clear that the concept of illiberal democracy encapsulates multiple ideas (Galston 2018, 8). Well before the covid-19 outbreak, antiliberal politicians and intellectuals had issued a complex bill of particulars against liberalism. Populists charged that liberalism had become a cloak for antidemocratic elitism that took power away from rank-and-file citizens while undermining their economic interests. Nationalists alleged that liberalism bred international institutions and laws that invaded nations’ sovereignty and hobbled the pursuit of legitimate national interests. Cultural traditionalists claimed that liberal individualism eroded moral and religious communities and that liberal freedom

700  Research handbook on the politics of constitutional law erased the distinction between liberty and license. If everything is a matter of choice, they argued, then everything is permitted, and nihilism is inevitable.

This is not the place to engage in detailed analysis of these claims. We must, nonetheless, unpack and understand them, in order to comprehend the politics of constitutional meltdown, which is the subject matter of this chapter. 3.2

Illiberal Democracy, Mimesis and Economics

There is little doubt that there has been a turn towards illiberal democracy in some Central and East European countries. The causes of this shift are, however, more complex than commonly imagined. Krastev and Holmes highlight the ‘pent-up animosity engendered by the centrality of mimesis in the reform processes launched in the East after 1989’ (Krastev and Holmes 2018, 118). They argue that the region’s illiberal turn cannot be grasped apart from the political expectation of ‘normality’ created by the 1989 revolution and the politics of imitation that it legitimised. This is echoed by other writers, who note that ‘conservative groups and social movements chafed at liberalism’s assumption of its natural superiority’ (Bill and Stanley 2020, 381). On this view the dominant narrative post-1989 was no longer that between communists and democrats, but rather that between imitators and the imitated. The idea is captured in the following extract (Krastev and Holmes 2018, 118, italics in the original). East-West relations morphed from a Cold War standoff between two hostile systems into a moral hierarchy within a single liberal, Western system. While the mimics looked up to their models, the models looked down on their mimics. It is not entirely mysterious, therefore, why the ‘imitation of the West’ voluntarily chosen by East Europeans three decades ago eventually resulted in a political backlash. What makes imitation so irksome is not only the implicit assumption that the mimic is somehow morally and humanly inferior to the model. It also entails the assumption that Central and Eastern Europe’s copycat nations accept the West’s right to evaluate their success or failure at living up to Western standards. In this sense, imitation comes to feel like a loss of sovereignty.

The backlash against mimesis was then exacerbated by the 2008 economic crisis. For Central and Eastern Europeans this was proof positive that the economic liberalism that underpinned the Western model was failing on its home turf. It was ‘as if they had been told to imitate the globally dominant West just as the West was losing that very dominance’ (Krastev and Holmes 2018, 119). Scepticism concerning economic liberalism was matched by mistrust of Western cosmopolitanism. Central and East Europeans ‘have no confidence in those whose hearts are in Paris or London, whose money is in New York or Cyprus, and whose loyalty belongs to Brussels’ with the consequence that ‘being cosmopolitan and at the same time a “good” Bulgarian, Czech, Hungarian, Pole, or Slovak is not on the cards’ (Krastev 2016, 93). There has, moreover, been a shift in the political allegiance of blue-collar workers from the moderate left to the right, such that ‘the internationalist-minded working class is no more, having faded along with Marxism’ (Krastev 2016, 95).

The politics of constitutional meltdown  701 3.3

Illiberal Democracy, Populism and Culture

There is also a populist and cultural dimension to the political imperative underlying developments in Central and Eastern Europe, which has in turn been shaped by developments in the West. This is not the place for detailed exegesis on the meaning of populism. Suffice it to say for the present that a key feature is that populists claim that they alone represent the people, this being a moral, rather than an empirical claim, and that the people must be defended against a corrupt elite (Müller 2016; Mudde 2004; Blokker 2019). Thus, Kaczyński and Orbán claim to represent true Poles and Hungarians respectively (Krastev 2016, 91; Bochsler and Juon 2020, 176; Hanley and Vachudova 2018). This then translates into the claim by populist parties that they have a monopoly to represent the people, as attested to by its electoral majority, which ‘provides authorization to cast off the constraints of the constitution or to revise it’ (Rupnik 2018, 26). This is reflected in, for example, the PiS response to critique from the opposition or the European Commission to its legislative initiatives. The response is framed in terms of a narrative of sovereign democracy, whereby the party with the majority of seats in Parliament represents the sovereign will of Poland, which is said to place the legitimacy of its action above question (Przybylski 2018, 59). In similar vein, leaders such as Orbán contend that liberal democracy is only one option among others. The concept of illiberal democracy is not used defensively, but rather is said to betoken a preferable model that better reflects and protects the national interest. Populism thus conceived is linked to resurgence of nationalism. In 1989, the advent of democracy marched hand in hand with the return of nationalism in the break-up of the Soviet empire. In the last decade by way of contrast, the mantle of legitimacy passed ‘from technocratic liberalism to populist nationalisms that harbour an organic conception of the nation as a historic, cultural, and religious community that the state must protect’, which is then linked with ‘the affirmation of national sovereignty against EU interference, whether this takes the form of issuing warnings about attacks on the rule of law or imposing quotas for accepting migrants’ (Rupnik 2018, 27; Vachudova 2020). Sata and Karolewski coined the term Caesarean politics to capture, inter alia, the political strategy of ‘constructing enemies and traitors to the national cause that is claimed to be represented by the government leader/party alone, thus questioning the legitimacy of pluralism’, with the strategy taken forward through an admixture of patronage, state capture and exclusionary identity politics (Sata and Karolewski 2020, 207). The populist strain within some Central and East European countries is reinforced by cultural argumentation. During the Cold War conservative Poles regarded the West as normal because it cherished tradition and believed in God. By way of contrast, Western normality now embraces secularism, multiculturalism, and gay marriage. It is unsurprising that there should be reticence about such ideas in parts of Central and Eastern Europe, more especially because ‘openness to the world, for large swaths of the Central and East European electorate, connotes not freedom but danger: immigrant invasion, depopulation, and loss of national sovereignty’ (Krastev and Holmes 2018, 124; Sata and Karolewski 2020; Enyedi 2020, 366–69). For Central European countries the proposed redistribution of migrants across national borders according to European Commission quotas was an attempt ‘to impose on them a multicultural model of society that they consider a failure’ (Rupnik 2018, 33). These concerns were heightened during the 2015 migration crisis (Przybylski 2018, 62).

702  Research handbook on the politics of constitutional law In connection with the 2015 migration crisis, the ‘Antemurale myth’ of Central European nations as the bulwark protecting Christian Europe from foreign invaders emerged as a central element of the dominant political ideology in Hungary. As it took on this role, the myth also underwent a revival in Poland and spread easily to Slovakia, the Czech Republic, and elsewhere. This narrative presents refugees and migrants as something close to military forces mobilised and on the march through Europe. Since the indifferent elites of the spoiled West will not repel them, Poland and Hungary must do so. This myth may partially explain the paradox that many people in the region remain pro-European (70 percent of Poles see EU membership as ‘a good thing’) while at the same time backing their governments’ illiberal turn.

4.

CONSTITUTIONAL MELTDOWN: UNDERLYING POLITICAL IMPERATIVE – COMPETITIVE AUTHORITARIANISM

There is a further dimension to the political imperative that underlies constitutional meltdown. Competitive authoritarianism overlaps with discourse concerning illiberal democracy, but nonetheless furnishes important insights that are pertinent to the politics of constitutional meltdown. 4.1

Competitive Authoritarianism, Origins and Development

Steven Levitsky and Lucan Way did the pathbreaking work on competitive authoritarianism at the turn of the new millennium (Levitsky and Way 2002), followed by a monograph at the end of the first decade. The concept had the following connotation (Levitsky and Way 2010, 5). [C]ivilian regimes in which formal democratic institutions exist and are widely viewed as the primary means of gaining power, but in which incumbents’ abuse of the state places them at a significant advantage vis-à-vis their opponents. Such regimes are competitive in that opposition parties use democratic institutions to contest seriously for power, but they are not democratic because the playing field is heavily skewed in favour of incumbents.

They revisited the topic, after the passage of a further ten years (Levitsky and Way 2020). Competitive authoritarianism was a post–Cold War phenomenon, the result of an environment that was hostile to full-scale dictatorship. The collapse of Soviet communism went hand in hand with a period of circa 15 years in which Western liberal hegemony held sway. This, coupled with promotion of democracy, meant that ‘the cost of outright dictatorship became prohibitively high’ (Levitsky and Way 2020, 52), more especially so in countries where linkage to, or leverage by, the West was strong (Levitsky and Way 2020, 52). The post–Cold War international environment favoured the rise of competitive authoritarianism. As multiparty elections spread across the globe, countries with reasonably favourable domestic conditions (including Mexico, Poland, South Africa, and Taiwan) generally democratised. But multiparty rule also diffused to many states with highly unfavourable conditions for democracy: impoverished countries with dysfunctional states, tiny middle classes, and weak oppositions and civil societies (such as Benin, Haiti, Madagascar, and Mali); post-communist countries with oversized states and undersized private sectors and civil societies (Armenia, Belarus, Russia, and Ukraine); or countries characterised by all of these conditions (Albania, Cambodia, North Macedonia, and Romania). These were countries that, according to nearly all existing social-science research, “should” have been authoritarian, but external pressure compelled their elites to permit a degree of pluralism and electoral

The politics of constitutional meltdown  703 competition. Thus, regimes that would very likely have been outright dictatorships in another historical context became hybrids during the post–Cold War era.

There was, however, considerable change in the international environment in the new millennium. The power of Western liberalism waned, while that of China and Russia increased. There was a decline in Western linkage and leverage, thereby reducing its ability and capacity to promote democracy. This in turn reduced the costs of engaging in competitive authoritarianism. Thus, while most such regimes that existed in Central and Eastern Europe and the Americas had democratised by 2004, subsequent years have witnessed the re-emergence of competitive authoritarianism, such that in 2019 six of the 32 such cases are in the Americas and Central and Eastern Europe (Levitsky and Way 2020, 54). The relative weakness of democratic institutions facilitates the return of competitive authoritarian regimes (Bieber 2018). 4.2

Competitive Authoritarianism, Persistence and Form

The preceding discussion leads to further inquiry, as to why competitive authoritarianism persists. This is prompted by the earlier discussion, which begs the question as to why such regimes did not become more fully authoritarian, given that the costs of compliance with Western ideals of democracy and liberalism had diminished. For Levitsky and Way international and domestic considerations are pertinent. From the international perspective, ‘the liberal West may be down, but it is hardly out’, given that Western democracies remain among the world’s most influential states (Levitsky and Way 2020, 56), as attested to by the fact that nine of the world’s ten largest economies are established democracies. Russia and China had hitherto sought to spread communism, but more recently have sought to ‘support geopolitical allies and weaken rivals, rather than to promote authoritarianism per se’ (Levitsky and Way 2020, 56). From the domestic perspective, there are several reasons why competitive politics persists, as opposed to authoritarianism per se. Thus, ‘many contemporary autocrats lack the institutional capacity to eliminate opposition and to maintain the internal cohesion required for the consolidation of hegemonic rule’ (Levitsky and Way 2020, 57). Competitive politics and elections lend legitimacy to the victor, even where the playing field is tilted to its advantage, as exemplified by the situation in Poland and Hungary. This is coupled with the fact that recourse to domestic authoritarianism per se for countries that had previously been under the yoke of external authoritarianism may well be resisted by the populace, even if a majority is willing to accept the milder form of competitive authoritarianism in which the executive aggrandises power in the manner adumbrated above. This is more especially so for countries that are less obvious ‘candidates’ for competitive authoritarianism. Thus, many competitive authoritarian regimes emerged in countries where the conditions were unfavourable for democracy, where there was little by way of democratic tradition, low income per capita and weak institutions that could be more readily swayed. In countries where democratic traditions are stronger, where there is an established middle class, a vibrant civil society and stronger institutions, authoritarianism per se is less likely to be accepted, hence the incentive for those so minded to press for competitive authoritarianism that enables the power holders to claim the legitimacy that comes with electoral success, even where this is achieved at the cost of undermining the formal and substantive precepts of the constitution.

704  Research handbook on the politics of constitutional law 4.3

Competitive Authoritarianism, Stability and Durability

There are interesting issues concerning the stability and durability of competitive authoritarianism across time. It is clear that the list of competitive authoritarian regimes is not static (Carothers 2018). The 35 such regimes examined by Levitsky and Way in 2010 followed very different paths between 1990 and 2019: 15 democratised; six democratised, but regressed; four became fully authoritarian; and ten remained continuously competitive authoritarian. However, competitive authoritarianism also emerged in new countries. In some instances, this was the result of the shift from hegemonic rule to competitive authoritarianism; in others, such as Bolivia, Hungary, Poland, the Philippines, Turkey, and Venezuela, the trajectory was from democracy to competitive authoritarianism (Levitsky and Way 2020, 51). There can, nonetheless, be questions as to whether it is correct to characterise a particular regime as competitive authoritarian or authoritarian. It is, moreover, noteworthy that elements of competitive authoritarianism are evident in more established democracies, as exemplified by Matteo Salvini in Italy and some policies pursued by Donald Trump in the USA. It is equally clear that the durability of any particular regime is, paradoxically, both reinforced and limited by the very features that render it competitively authoritarian. It is reinforced for the reasons adverted to above: electoral success lends legitimacy to the regime, which is strengthened by the espousal of illiberal democracy built on a populist base. However, such regimes ‘often see their stability erode precisely because they feature relative political openness and competition, at least compared to fully authoritarian regimes’ (Carothers 2018, 130). Thus, while life is difficult for the opposition in such regimes, there is still the possibility to challenge the governing elite, and ‘an uneven playing field is better than none at all’ (Carothers 2018, 132). The dominant party must, moreover, be wary lest electoral manipulation triggers protest that destabilises the status quo. There is, in addition, an inherent tension within competitive authoritarianism, insofar as it seeks to draw legitimacy from democracy while weakening the level playing field that provides its normative foundations, which at the same time deprives it of the ability openly to claim some alternative ground of legitimacy (Carothers 2018, 133).

5.

CONSTITUTIONAL MELTDOWN: SECOND-ORDER POLITICAL IMPACT

5.1

Constitutional Meltdown, the Rule of Law and Independence of the Judiciary

The preceding discussion has revealed the constitutional problems that beset Hungary and Poland. This has in turn had a second-order political impact on the EU, more especially in relation to the rule of law problems posed by the incursions on judicial independence. An independent judiciary is an especially significant component of the rule of law, and central to the workings of the constitutional order (Craig 2019). Thus, it is fundamental to any conception of the rule of law that the government should act on a basis deemed valid by that legal system. If the government or legislature exceeds the boundaries of its lawful authority, including its constitutional authority, then its action will be null or invalid. There must be independent courts to assess, in an objective manner, whether the limits on such authority have been exceeded. If the courts lack such independence, or are subservient to the will of the

The politics of constitutional meltdown  705 political branch of government, then there is a real danger that fundamental limits on the scope of political power will be ignored. The judiciary must also be independent in order to give legal effect to other precepts of the constitution, such as the protection of fundamental rights, the proscription of retrospective laws, or control of laws that inhibit access to court. If the courts lack independence, then they will not protect such constitutional precepts, or will interpret them unduly narrowly to the advantage of the executive. Whether they fail wholly in this respect depends on the extent to which their independence is compromised. Independence is not a unitary concept. It can be compromised to different degrees, with variables including the period of time for which this infirmity lasts, and the class of case that it affects. Where the lack of judicial independence is systemic, where it is deep-rooted and long-lasting, then the effect is most damaging. In such circumstances, the courts will not protect individual rights, they will allow retrospective legislation to stand, and they will fail to safeguard citizens against laws or executive action that unduly circumscribes their access to court. Judicial independence is especially pertinent in the EU context, since the problems at state level shake the foundations of the EU’s constitutional order. This is in part because mutual trust between national courts is integral to the European Arrest Warrant regime that constitutes the core of the Area of Freedom, Security and Justice. It is in part because national courts are central to the regime of EU adjudication. They have the obligation to conform to and apply EU law within their jurisdiction and are central to the flow of cases upwards to the CJEU, via the regime of preliminary references in Article 267 TFEU that lies at the core of the EU legal order. If national courts lack independence then the regime of EU adjudication will suffer in both respects. National courts that lack independence may not apply EU law correctly, and they may restrict the flow of preliminary references where there are challenges to national legislative or executive action that is contrary to EU law. The EU has deployed numerous strategies to combat the rule of law problem and democratic backsliding, including: the Commission’s rule of law framework; the Council’s annual rule of law dialogue; infringement proceedings under Article 258 TFEU and preliminary rulings using Article 267 TFEU; invocation of Article 7 TEU; the rule of law cycle; and the conditionality regulation rendering EU monetary assistance dependent on compliance with the rule of law. This is not the place for detailed exegesis on such measures, which have been discussed extensively in the literature (von Bogdandy and Sonnevend 2015; Closa and Kochenov 2016; Jakab and Kochenov 2017; Kochenov and Pech 2015; Pech 2021). Suffice it to say for the present that democratic backsliding has caused significant second order political implications for the EU, which it has striven to address with limited success. 5.2

Constitutional Meltdown, Regional Responsibility and Regional Capacity

There is, however, a further dimension to the politics of constitutional meltdown as it affects the EU, which merits consideration. It is the balance between regional responsibility and regional capacity. Consider the following. It is axiomatic that the principal focus for protection of the rule of law and constitutional propriety is the state itself. Reflect for a moment further on the assumptions underlying this sentiment. They are grounded on an admixture of power and responsibility. It is the state that has plenary authority within its borders, which carries the commensurate responsibility for ensuring that the precepts of constitutionalism and the rule of law are adhered to.

706  Research handbook on the politics of constitutional law If there are failings in this respect then the traditional recourse is to international law. The errant state may be condemned in international organisations for failure to comply with the rule of law. Such missives are important, but they are nonetheless bounded, both formally and substantively. The formal powers of such organisations are circumscribed and the conditions for their exercise often require a political consensus that may not be forthcoming. The bottom line is that while we might expect international condemnation we do not have high hopes for causal impact on the situation on the ground. We ‘discount’ in advance the extent to which such intervention can really change matters. There is moreover evidence that intervention by international institutions can backfire (Adamski 2019). This brings us to alleviation of such problems at the regional level. In Europe the two principal regional organisations are the Council of Europe and the European Union. Their powers are very different, as is their expected impact on rule of law problems at national level. This in turn affects our expectations of what they can achieve. The Council of Europe has made significant contributions to preservation of the rule of law. This is in part through the European Court of Human Rights, and in part through the work of the Venice Commission for Democracy through Law. The salient point for present purposes is that they have done broadly what is expected of them. By way of contrast, we expect a lot from the EU, and we are critical when results fall short of expectations. There is no doubt that we should be mindful of shortcomings of the EU institutions in this regard, including instances where the Commission has been tardy in bringing enforcement actions against the recalcitrant Member State. We should, however, also pause and reflect of what we can expect from the EU to redress these problems. Its power and responsibility are bounded in a number of respects. First, the EU is not a state, nor did it take the reprehensible action in relation to the judiciary. This was taken by the Polish and Hungarian governments, and the action was not causally dependent on their EU membership. These states met the Copenhagen criteria for accession, which include compliance with democratic precepts. The desire for EU membership spurred democratisation (Bochsler and Juon 2020; Karlsson and Galic 2016). The problems occurred thereafter, and the governments sought power over the judiciary for reasons that transcended anything to do with EU membership, and this is so notwithstanding the fact that the result would be that the non-independent courts would be less likely to apply EU rulings which the governing parties disliked. Secondly, the EU has attributed power, it does not have plenary authority. It must therefore work within the parameters of what the Lisbon Treaty allows. Truth to tell, the EU has been pretty good at using a plethora of techniques to try to address the rule of law problem, and has deployed broad Treaty interpretation to good effect, as exemplified by judicial use of Article 19 TEU, and Article 258 TFEU. The fact remains that the Treaty still imposes limits on what the EU can do, and how it can do it. Thus, the powers in Article 7 TEU were devised implicitly on the assumption that there would only be one ‘bad’ state at any one point in time. The decisional rules thereunder reflect this. If there are two or more such states then use of Article 7 TEU becomes a whole lot more difficult. Thirdly, the EU is bounded by rules for political decision-making, that are grounded in Treaty provisions, and these can be used by the defaulting states as shields to blunt the force of EU initiatives to deal with rule of law backsliding. This is regrettable to say the least, but predictable in the sense that a rational defaulting state will naturally draw on legal rules to shape the political terrain when it can do so. This is exemplified by the passage of the latest initiative

The politics of constitutional meltdown  707 designed to impose rule of law conditionality through cuts to the contributions from the EU budget that go to defaulting states. The political deal-making on this was conducted under the shadow of threats from Hungary and Poland to veto approval of the general EU budget. There is no doubt that the resultant measure could have been stronger, but whether it would have been enacted in such a form is doubtful, given the political/legal dynamics adumbrated above. We should be wary of the best being the enemy of the good. Fourthly, there is the related, albeit distinct, consideration of what has been termed authoritarian equilibrium. This captures the idea that ‘where an authoritarian leader in an EU Member State delivers votes to an EU-level political coalition – such as a party group in the European Parliament – its EU-level co-partisans will have incentives to tolerate its democratic backsliding and shield it from EU sanctions’, provided that the national leader does not go too far, such as to become an electoral liability for its ‘co-partisans in Strasbourg and national capitals and lose their protection’ (Kelemen 2017, 217). There is no doubt that constitutional infirmity and rule of law backsliding represents a significant second-order political problem for the EU. It calls into question the enforceability of CJEU judgments, and casts a long shadow over the degree to which national courts trust those in the countries beset by incursion into the independence of the judiciary. In more general terms, there are far-reaching dangers for the EU, if membership includes countries that undermine central precepts of the rule of law.

6. CONCLUSION The preceding discussion has considered the politics that underlie constitutional meltdown. It has included analysis of the proximate political strategy, the deeper political imperative driving this and the second order political consequence. There is doubtless more that could be said over and beyond this. However, exigencies of space preclude consideration of broader issues concerning, for example, the extent to which belief in basic precepts of democracy may be waning (Foa and Mounk 2017; Howe 2017). We should, moreover, be mindful that constitutional meltdown can assume very different forms, and that the politics that underscores this may differ accordingly. Thus, if a constitution is relatively ‘thin’ it will perforce mean that more issues will be dealt with through an admixture of legislation that fleshes out the constitutional principles, combined with constitutional adjudication. In federal systems there will be issues as to the locus of constitutional authority to enact the legislation. Disruption to accepted understandings of constitutional order can then play out in legislation enacted at state level, where the intent and effect is to limit the voting rights of supporters of a political party. The dangers that this poses for the health of democracy and the vitality of the constitution are very real, as exemplified by recent developments in the USA (Persilly & Stewart 2021).

REFERENCES Adamski, Dariusz. (2019). ‘The Social Contract of Democratic Backsliding in “the new” EU Countries,’ Common Market Law Review 56: 623–66. Bánkuti, Miklós, Gábor Halmai & Kim Lane Scheppele. (2012). ‘Disabling the Constitution,’ Journal of Democracy 23(3): 138–46.

708  Research handbook on the politics of constitutional law Bieber, Florian. (2018). ‘Patterns of competitive authoritarianism in the Western Balkans,’ East European Politics 34(3): 337–54. Bill, Stanley & Ben Stanley. (2020). ‘Whose Poland is it to be? PiS and the struggle between monism and pluralism,’ East European Politics 36(3): 378–94. Blokker, Paul. (2019). ‘Varieties of Populist Constitutionalism: The Transnational Dimension,’ German Law Journal 20: 332–50. Bochsler, Daniel & Andreas Juon. (2020). ‘Authoritarian footprints in Central and Eastern Europe,’ East European Politics 36(2): 167–87. Börzel, Tanja A. & Bidzina Lebanidze. (2017). ‘The transformative power of Europe beyond enlargement: the EU’s performance in promoting democracy in its neighbourhood,’ East European Politics 33(1): 17–35. Bugarič, Bojan & Tom Ginsburg. (2016). ‘The Assault on Post-Communist Courts,’ Journal of Democracy 27(3): 69–82. Bermeo, Nancy. (2016). ‘On Democratic Backsliding,’ Journal of Democracy 27(1): 5–19. Carothers, Christopher. (2018). ‘The Surprising Instability of Competitive Authoritarianism,’ Journal of Democracy 29(4): 129–35. Cianetti, Licia, James Dawson & Seán Hanley. (2018) ‘Rethinking “Democratic Backsliding” in Central and Eastern Europe – Looking Beyond Hungary and Poland,’ East European Politics 34(3): 243–56. Cianetti, Licia & Seán Hanley. (2021). ‘The End of the Backsliding Paradigm,’ Journal of Democracy 32(1): 66–80. Closa, Carlos & Dimitry Kochenov (eds). Reinforcing the Rule of Law Oversight in the European Union (Cambridge University Press, 2016). Craig, Paul. ‘Definition and Conceptualization of the Rule of Law and the Role of Judicial Independence Therein’ in Paul Craig, Stanislas Adam, Nuria Diaz Abad & Lorenzo Salazar. Rule of Law in Europe, Perspectives from Practitioners and Academics (EJTN, 2019) 1–15. Enyedi, Zsolt. (2020). ‘Right-wing authoritarian innovations in Central and Eastern Europe,’ East European Politics 36(3): 363–77. Foa, Roberto Stefan & Yascha Mounk. (2016). ‘The Danger of Deconsolidation: The Democratic Disconnect,’ Journal of Democracy 27(3): 5–17. Foa, Roberto Stefan & Yascha Mounk. (2017). ‘The Signs of Deconsolidation,’ Journal of Democracy 28(1): 5–15. Fomina, Joanna & Jacek Kucharczyk. (2016). ‘The Specter Haunting Europe: Populism and Protest in Poland,’ Journal of Democracy 27(3): 58–68. Galston, William. Anti-Pluralism: The Populist Threat to Liberal Democracy (Yale University Press, 2018). Galston, William. (2020). ‘The Enduring Vulnerability of Liberal Democracy,’ Journal of Democracy 31(3): 8–24. Ginsburg, Tom & Aziz Huq. (2014). ‘What Can Constitutions Do? The Afghan Case,’ Journal of Democracy 25(1): 116–30. Hanley, Seán & Milada Anna Vachudova. (2018). ‘Understanding the illiberal turn: democratic backsliding in the Czech Republic,’ East European Politics 34(3): 276–96. Howe, Paul. (2017). ‘Eroding Norms and Democratic Deconsolidation,’ Journal of Democracy 28(4): 15–29. Jakab, András & Dimitry Kochenov (eds). The Enforcement of EU Law and Values: Ensuring Member State Compliance (Oxford University Press 2017). Karlsson, Christer & Katarina Galic. (2016). ‘Constitutional change in light of European Union membership: trends and trajectories in the new member states,’ East European Politics 32(4): 446–65. Kelemen, Daniel. (2017). ‘Europe’s Other Democratic Deficit: National Authoritarianism in Europe’s Democratic Union,’ Government and Opposition 52(2): 211–38. Kochenov, Dimitry & Laurent Pech. (2015). ‘Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality,’ EuConst 11: 512. Krastev, Ivan. (2016). ‘The Unravelling of the Post-1989 Order,’ Journal of Democracy 27(4): 88–98. Krastev, Ivan & Stephen Holmes. (2018). ‘Imitation and its Discontents,’ Journal of Democracy 29(3): 117–28.

The politics of constitutional meltdown  709 Krekó, Péter & Zsolt Enyedi. (2018). ‘Orbán Laboratory of Illiberalism,’ Journal of Democracy 29(3): 39–51. Levitsky, Steven & Lucan Way. Competitive Authoritarianism: Hybrid Regimes After the Cold War (Cambridge University Press, 2010). Levitsky, Steven & Lucan Way. (2002). ‘Elections Without Democracy: The Rise of Competitive Authoritarianism,’ Journal of Democracy 13(2): 51–65. Levitsky, Steven & Lucan Way. (2020). ‘The New Competitive Authoritarianism,’ Journal of Democracy 31(1): 51–65. Müller, Jan-Werner. What Is Populism? (University of Pennsylvania Press, 2016). Mudde, Cas. (2004). ‘The Populist Zeitgeist,’ Government and Opposition 39(4): 542–63. Pech, Laurent. ‘The Rule of Law’ in Paul Craig and Gráinne de Búrca (eds) Evolution of EU Law, 3rd edition (Oxford University Press, 2021) ch 10. Persilly, Nathaniel & Charles Stewart III. (2021). ‘The Miracle and Tragedy of the 2020 US Election,’ Journal of Democracy 32(2): 159–78. Przybylski, Wojciech. (2018). ‘Can Poland’s Backsliding be Stopped?,’ Journal of Democracy 29(3): 52–64. Rupnik, Jacques. (2018). ‘The Crisis of Liberalism,’ Journal of Democracy 29(3): 24–38. Sadurski, Wojciech. Poland’s Constitutional Breakdown (Oxford University Press, 2019). Sata, Robert & Ireneusz Pawel Karolewski. (2020). ‘Caesarean politics in Hungary and Poland,’ East European Politics 36(2): 206–25. Scheppele, Kim Lane. (2013). ‘The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work,’ Governance 26: 559–62. Scheppele, Kim Lane. (2018). ‘Autocratic Legalism,’ University of Chicago Law Review 85: 545–83. Scheppele, Kim Lane. ‘Autocracy under Cover of the Transnational Legal Order’ in Gregory Shaffer, Tom Ginsburg and Terence C. Halliday (eds) Constitution-Making and Transnational Legal Order (Cambridge University Press, 2019) ch 7. Sólyom, László. ‘The Rise and Decline of Constitutional Culture in Hungary’ in Armin von Bogdandy and Pál Sonnevend (eds) Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Hart, 2015) ch 1. Surowiec, Paweł & Václav Štětka. (2020). ‘Introduction: media and illiberal democracy in Central and Eastern Europe,’ East European Politics 36(1): 1–8. Vachudova, Milada Anna. (2020). ‘Ethnopopulism and democratic backsliding in Central Europe,’ East European Politics 36(3): 318–340. von Bogdandy, Armin & Pál Sonnevend (eds). Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Hart, 2015). Walzer, Michael. The Paradox of Liberation: Secular Revolutions and Religious Counterrevolutions (Yale University Press, 2015). Zakaria, Fareed. ‘The Rise of Illiberal Democracy,’ (1997) Foreign Affairs 76(6): 22–43.

38. The problem of evil law Anna Lukina1

1. INTRODUCTION When it comes to law, according to Fuller, ‘coherence and goodness have more affinity than coherence and evil’.2 The demands of ‘coherence’, or, as Fuller calls it, the Rule of Law, seem to put inconvenient fetters on an immoral regime’s reach. As a result, imagining a regime that is morally iniquitous yet relies on the legal form seems rather difficult, if not outright impossible. But history shows us that, within such regimes, evil and the Rule of Law can co-exist. In this chapter, I describe how this unholy alliance between evil and law is forged. In doing so, I will situate my discussion within the famous debate between Simmonds and Kramer3 on the topic. First, I make a negative case against Simmonds’ position that evil regimes will be hindered by the Rule of Law as extra-legal violence is better at preventing dissent than violence cabined by legal rules.4 I claim that prevention of dissent, as well as other goals of evil regimes, are best served by law. Second, I expand on this thesis by making a positive case for Kramer’s position. I argue that law might help evil regimes via legal techniques necessary for any regime, evil or good: coercion (or ‘incentive-seeking regularity’)5 and coordination as identified by Kramer,6 and, additionally, legitimation, education, and identity building.

1 This chapter was written as a part of my Ph.D. research at the University of Cambridge, where my work has been funded by the Institute for Humane Studies, the Modern Law Review, and the Cambridge Law Journal. I thank my supervisor, Dr. Lars Vinx, for his immense support throughout this project. I am also grateful to the organisers and the audience at the Legal Theory Discussion Group ELTE Budapest (2022) where I presented an earlier draft of this chapter. 2 Fuller (1958), 636. 3 This debate played out in the following works (in chronological order). Nigel Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights (Sweet & Maxwell, 1986) 115–25. Matthew H. Kramer, In Defense of Legal Positivism: Law Without Trimmings (Oxford University Press, 1999) 62–71. Nigel Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights (Sweet & Maxwell, 2002) 223–53. Matthew H. Kramer, ‘On the Moral Status of the Rule of Law’ (2004) 63 Cambridge Law Journal 65. N.E. Simmonds, ‘Straightforwardly False: The Collapse of Kramer’s Positivism’ (2004) 63 The Cambridge Law Journal 98. N.E. Simmonds, ‘Law as a Moral Idea’ (2005) 55 The University of Toronto Law Journal 61, 77–85. Matthew H. Kramer, ‘The Big Bad Wolf: Legal Positivism and Its Detractors’ (2004) 49 American Journal of Jurisprudence 1. Matthew H. Kramer, Where Law and Morality Meet (Oxford University Press, 2008) 182–216. Nigel Simmonds, Law as a Moral Idea (Oxford University Press, 2008) 69 ff. This list was partially compiled in Hamish Stewart, ‘Incentives and the Rule of Law: An Intervention in the Kramer/Simmonds Debate’ (2006) 51 The American Journal of Jurisprudence 149, 149 (note 1). 4 Simmonds (1968), 119–20. 5 Kramer (2004), 69. 6 Ibid.

710

The problem of evil law  711 In my exploration of these ideas, I shall draw not only on legal-theoretical considerations, but also on examples from two ‘central cases’7 of evil law, Nazi Germany and Stalin’s Soviet Union. I believe that proceeding from these uncontroversially evil examples will enable a clearer analysis of the paradoxical nature of evil law. Furthermore, evil law itself is valuable as a ‘central case’ of a discussed ‘double bind’ of law and terror that can be relevant not just to evil regimes, but other examples of morally iniquitous legal systems. My conclusions therefore bear on our understanding on similarly situated legal systems past, present, and future. Overall, I aim to shed light on a paradox central to evil law – while constraining evil regimes in some ways, law, at the same time, empowers them in others.

2.

THE DISADVANTAGES OF LEGALITY

2.1

Simmonds’ Opening

One reason why the notion of ‘evil law’ sounds counterintuitive is that the legal form may appear to be a hindrance for the pursuit of an evil regime’s goals. Simmonds locates the difficulty that evil regimes face in having to comply with the Rule of Law desiderata as identified by Fuller: namely that the rules of law shall be (i) general, (ii) publicly promulgated, (iii) prospective, (iv) clear, (v) free of contradictions, (vi) stable, (vii) possible to obey, and (viii) administered in a way that does not diverge from their meaning.8 For Simmonds, not all these features are equally undesirable to evil regimes. As he notes, ‘wicked regimes will have good reason to publish rules and enforce them, but will have no good reason for respecting one of the most fundamental requirements of the Rule of Law: confining the use of official violence against citizens to circumstances where a legal rule has been violated.’9 Simmonds gives the following reasons for why evil officials may prefer to use extra-legal violence rather than the force of the law. The first one is ‘the chilling effect’10 it has on the law-subjects – essentially preventing law-subjects from acting in ways that might jeopardise the regime’s goals, even when this conduct is not prohibited by law.11 In his textbook, Central Issues in Jurisprudence: Justice, Law, and Rights, Simmonds stated: [i]f social control is merely a matter of preventing widespread violence and revolutionary dissent, it is unlikely that Fuller’s eight principles [of the Rule of Law – addition mine] will be a good guide to the most effective techniques. A regime of terror where officials act unpredictably or on the basis

The central case method, going back to Aristotle, requires one to focus on more straightforward instances of a phenomenon instead of trying to consider all its possible manifestations in order to better separate its most important features. Most notably, this method was applied to the concept of law by Finnis in Finnis (2011), 9–11. 8 Fuller (1969), 33. For the purposes of this chapter, the Rule of Law would be understood in the way Fuller framed it. It should, however, be acknowledged that other ways of defining the Rule of Law exist, such as, in this volume, the one determined to contain not just state, but also private power (Krygier, Chapter 2) or the one focused on judicial independence (Craig, Chapter 37, Section 5.1). 9 Simmonds (2005), 84. This echoes Fuller’s own writing on the topic – when he discusses ‘managerial direction’ as opposed to ‘law’, he mentions that the requirements of generality, congruence between official action and declared rule, and retrospectivity would be superfluous. Fuller (1969), 208–209. 10 Simmonds (2005), 85. 11 Ibid, 85–86. 7

712  Research handbook on the politics of constitutional law of secret directives is much more likely to succeed in quelling opposition. Where clear rules are published, the citizen is given advance notice of those areas of conduct where he can act without fear of official interference. In the absence of such rules, any action that worries or annoys the officials is likely to be interfered with: the only way of avoiding interference is to maintain a compliant and conformist attitude and lifestyle12.’

To illustrate his position, in the later edition of the same textbook, Simmonds imagines ‘a group of religious fundamentalists that has the sole aim of discouraging a propagation of atheism.’ ‘Unregulated brutality towards anyone suspected of sympathy for atheism,’ he says, ‘would serve such a regime perfectly well. Atheists and potential atheists would be deprived of the opportunity to exploit the interstices of liberty that are inherent in any meticulously enforced set of rules; they would know that the only way to be safe was to avoid doing anything that might annoy the regime’s supporters, or arouse their suspicions.’13 In addition, Simmonds mentions a distinct reason,14 ‘dealing with strategic behaviour among supporters.’15 An evil regime is not a monolith – it consists of different actors who are ‘locked in conflict over division of the spoils’ or ‘construe [the regime’s – addition mine] objectives in slightly different ways, or wish to emphasize slightly different aspects of the regime’s overall agenda.’16 Simmonds ends up claiming that, as a result, ‘[t]here will consequently be occasions when reliance upon Party thugs might seem preferable to reliance upon the judges’17 as, for instance, giving judges the power to ‘use their role within the institutions of law to extract large personal gains; or to shape the Party’s agenda in ways that would not be favoured by the non-judicial members of the regime.18’ This is a distinct reason from the ‘chilling effect’ which the previous two reasons ended up being subsumed under and needs separate treatment. For now, I claim that Simmonds’ intuition here is misguided – the fact that evil regimes involve many actors working at cross-purposes, is a reason for, rather than against, legal regulation. As it will be argued below,19 coercion and coordination provided by law will be able to address the compliance and coordination problems more efficiently than extra-legal violence. 2.2

Law and ‘conformism’

Let us return to the ‘chilling effect’. One can respond to Simmonds’ argument in two ways. The first one is to reject his thesis entirely, stating that governing by a ‘regime of terror’ does not in fact lead to greater ‘compliant and conformist attitude and lifestyle.’ Firstly, such a ‘lifestyle’ requires that one ought to comply with or conform to something – a rule that should be clearly communicated to the subject of such conformity. Secondly, for there to be an incentive to comply with or conform to the rule, its subject needs to be able to link non-conformity to negative consequences that will obtain once they do not conform, or the sanction. These two Simmonds (1986), 119–20. Simmonds (2002), 230. 14 I do not focus here on the other two reasons Simmonds provides – ‘blocking visibility’ and ‘requiring enthusiasm’ that, on my view, simply repeat his propositions about the ‘chilling effect’ by other means. Simmonds (2005), 86–87. 15 Simmonds (2005), 87. 16 Ibid, 88. 17 Ibid. 18 Ibid. 19 See Sections 3.2 and 3.3. 12 13

The problem of evil law  713 facts make a case that it is not blind extra-legal ‘terror’, but a system of rules and sanctions complying with the Fullerian desiderata that evil regimes need to secure conformism. This position was quite lucidly expressed by Kramer, who speaks, respectively, of ‘coordination’ and ‘incentive-securing regularity’ that are ‘made possible by the [R]ule of [L]aw.’20 Thus, to Kramer, unlike to Simmonds, the principles of the Rule of Law are not necessarily morally valuable, as they are valuable to both ‘just’ and ‘unjust’ officials.21 In evil regimes, as Simmonds would put it, they are rendered ‘mere principles of efficacy’.22 Therefore, Kramer concludes, ‘if power-hungry rulers are determined to exert and reinforce their repressive sway for a long period over a sizeable society, their efforts will be severely set back if they do not avail themselves of the coordination and the incentive-securing regularity made possible by the [R]ule of [L]aw.’23 This position is not only convincing on its own, but also dovetails with Fuller’s treatment of the subject. In a famous thought experiment, Fuller describes an absolute monarch (Rex), whose word is law. From time-to-time Rex issues commands backed up with sanctions. However, he is ‘a dissolute and forgetful fellow, who never makes the slightest attempt to ascertain who has, in fact, followed his directions and who have not.’24 As a result, Fuller concludes, ‘this monarch will never achieve even his own selfish aims, until he is ready to accept that minimum self-restraint that will create a meaningful connection between his words and his actions.’25 This ‘minimum self-restraint’, or self-discipline, of governing through law is thus integral to success of any, even ‘selfish’ (in Fuller’s terms) or ‘power-hungry’ (in Kramer’s terms), ‘unjust’ (also in Kramer’s terms), or ‘evil’ (in my terms), ruler. Therefore, a regime of the type Simmonds described would not be viable. 2.3

Law and Other Evil Goals

The second argument against Simmonds is that securing compliance through fear is only one of the reasons legal officials might consider when deciding how to govern. Evil regimes can have evil goals other than quashing dissent, such as the extermination or subjugation of political rivals, class enemies, or ethnic or religious minorities at all costs – even if pursuing these aims would not have any positive effect on or might even undermine a regime’s power. Simmonds assumes a lot about how evil regimes look and operate, but does not cite any empirical findings to support the claim that his model of a society of religious fundamentalists applies to all, or at least most, evil regimes. While in Simmonds’ religious fundamentalism example the governing regime does not care about whether the suspected atheists were in fact atheists, this does not map easily on the reality of two paradigmatic evil regimes considered in this chapter – Nazi Germany and Stalinist Soviet Union – for whom the main interest was not to secure compliance, but to target ‘undesirable’ groups for either extinction or subservience. In Nazi Germany, after the passing of the Nazi Nuremberg Laws that prohibited Jews and Germans from marrying and engaging in sexual intercourse (Law for the Protection of German

Kramer (2004), 69. Ibid, 68–69. 22 Simmonds (1986), 119. 23 Kramer (2004), 69. 24 Fuller (1958), 644. 25 Ibid. 20 21

714  Research handbook on the politics of constitutional law Blood and German Honour),26 and stripped Jews of German citizenship (Reich Citizenship Law),27 according to Lösener, the later disgraced architect of those racist regulations, ‘the most pressing matter was to find a legal definition of “Jew” and to draw a clear line separating him from the “non-Jews.”’28 As a result, the First Regulation of 14 November 1935 finally took care to define Jews as persons with at least three Jewish grandparents (Article 5(1)) or two Jewish parents under certain circumstances (Article 5(2))29 for the purposes of the aforementioned Nuremberg Laws. During the drafting of the First Regulation, a lively debate ensued about whether the definition of ‘Jew’ should include those pejoratively referred to as Mischlinge, or persons with Jewish ancestry that did not satisfy what eventually would become the definition adopted by the First Regulation.30 Far from waging indiscriminate terror of the kind Simmonds described, the Nazis cared about persecuting the ‘right’ victims and sought to do so through law. While the Stalinist Great Terror mostly rested not on racial,31 but political and class-based foundations, it had similar features. The NKVD Order No. 00447 of July 30, 1937 ‘Concerning the repression of kulaks, criminals, and other anti-Soviet elements’, famous for creating troikas, the ad hoc extra-legal tribunals having the power to sentence those within their reach to death or imprisonment, featured a list of ‘contingents that have to be persecuted [or “repressed”]’ in its very first Article. The Article included not just conduct-based criteria for falling under the remit of troikas (such as ‘conducting anti-Soviet activities’), but also a list of relevant identities (such as former kulaks, Whites, and clergymen).32 Even though the NKVD Order, unlike the First Regulation, was a secret internal document rather than a public proclamation, and its definitions more imprecise, it similarly limited the range of terror to ideologically undesirable groups. Instead of perceiving members of the groups in question as subjects needed to be rendered compliant, Nazi Germany and Stalin’s Soviet Union treated them as objects to be removed irrespective of their behaviour.

3.

THE ADVANTAGES OF LEGALITY

3.1

Some Introductory Remarks

While I have made a negative case against Simmonds, I am yet to present a positive case for why evil regimes need law. With this in mind. I intend to show how legality can be used – or, some might say, abused – by evil regimes, considering the following instruments or techniques the law provides: coercion and coordination, and, additionally, legitimation, education, and identity building. None of these is unique to evil law – they can be seen as ancillary pru-

Law for the Protection of German Blood and German Honour 1935. Reich Citizenship Law 1935. 28 Lösener (2001), 56. 29 The Reich Citizenship Law: First Regulation 1935. 30 Lösener (2001), 56 ff. 31 As a counterpoint, see Martin (1998). 32 Оперативный приказ Народного Коммисариата Внутренних Дел Союза С.С.Р. № 00447 об операции по репрессированию бывших кулаков, уголовников и др. антисоветских элементов. 1937. 26 27

The problem of evil law  715 dential reasons why an evil regime pursues its non-prudential objectives.33 I will show how these instruments motivate the evil regime to use law, even if it comes, as described earlier, at a certain cost to their ambitions. I also aim to give an account of why law specifically, as opposed to its close counterparts such as morality or religion, uniquely helps evil regimes to further their goals. Finally, I intend to address the gap that Kramer identified in his distinction between officials’ actual motivations and reasons for action that ‘would motivate them if they were to understand the serviceability of [the Rule of Law] for the furtherance of their general objectives’.34 3.2 Coercion Coercion is often the first thing that comes to mind when we talk about the functions of law. While it might not be a feature of all conceivable legal systems35 or all laws,36 its importance cannot be overstated. The need for such coercion under normal circumstances is attributed to human imperfection – that not all humans are angels as some may be inclined to disobey even just laws. As Raz writes, non-coercive legal systems are ‘humanly impossible because for human beings as they are the support of sanctions, to be enforced by force if necessary, is required to assure a reasonable degree of conformity to law and prevent its complete breakdown’.37 In evil regimes, the concern is exactly the opposite and stems not from scepticism about, but from faith in human nature. While humans are not Razian angels, they are neither a part of the Kantian ‘race of devils’.38 If, as we hope, a significant proportion of law-subjects is virtuous and is thus inclined to disobey evil laws, coercion is needed in a wicked legal system to keep the doubts of those virtuous citizens at bay by giving them a reason to, albeit reluctantly, conform with laws’ demands. One can retort that coercion is not unique to law. Morality, religion, or ideology also include sanctions, such as social shunning, excommunication from the Church,39 or expulsion from the Party. Why cannot an evil regime rely on them, thus avoiding the pitfalls that might befall it if it subjects itself to a system of law? One answer is that the law-like character of sanctions is paramount for their greater efficiency. Turning back to the Simmonds-Kramer debate, in order to have a desired effect – securing conformity of rule-subjects with rules – these rules and the sanctions backing them up need to be in line with Fuller’s desiderata. To use one of those Rule of Law requirements as an example, if sanctions are not publicly promulgated, then the law-subjects, unaware of them, cannot accept them as a reason to do something required under

Kramer (2004), 80. See also ibid, 74–76. He claimed that both him and Simmonds addressed the second question and not the first. Ibid, 67–68. 35 See Raz’s ‘society of angels’ thought experiment. Raz (1999), 67–68. Additionally, I argue that this experiment resembles a much older rumination on the same topic by Aquinas. Lukina (2020). 36 See what Hart calls ‘power-conferring rules’ as opposed to coercive ‘duty-imposing rules’. Hart (2012), 26 ff. 37 Raz (1999), 158–59. 38 Kant (1917), 153–54. 39 While religious texts also refers to divine punishment such as going to hell in the afterlife, here I will focus on more ‘law-like’ rules such as those exemplified by the Canon Law, governing inner church structure and discipline. 33 34

716  Research handbook on the politics of constitutional law a threat of sanction or to abstain from doing something prohibited under such a threat. Kramer gives the following illustration: Suppose a group of gunmen have subjected a number of people to their control. Although the gunmen might initially [...] deem it advisable to engage in the sorts of random violence to which Simmonds adverts, they will not be able to direct their victims’ behavior effectively unless they issue commands that accord with Fuller’s principles to a significant extent.40

In other words, for an individual sanction to work, it must be couched in a legal form rather than remain a site of arbitrary violence. The other difference between law and its normative counterparts – morality, religion, and ideology – is that the state, and hence law, has a monopoly of violence.41 This does not mean that no violence perpetuated by someone other than legal officials is permitted – it only means that all private use of violence is conditional on the state’s acceptance of it as ‘the law attaches certain conditions to the use of force in relations among men, authorizing the employment of force only by certain individuals in certain circumstances’.42 In that law reaches further than morality, religion, or ideology, and hence represents an efficient tool that any – good or evil – state can use. One can, of course, say that law’s monopoly on violence is contingent on the arrangements within a specific social order. For instance, a theocrat would make religion, and not law, the final arbiter on violence. I respond that the more a system like morality, religion, and ideology seeks to impose sanctions in a comprehensive way, the more it becomes law-like, or in line with the Rule of Law in the way described above. The aforementioned theocrat would try to give religion the status of law in order to utilise the monopoly on violence in order to make the law-subjects submit to the precepts of their religion. The same can be said about ideology – in both Nazi Germany and Stalin’s Soviet Union the state apparatus was formally and informally fused with one of the dominant Parties. On the one hand, it can be seen as an erosion of state, but I prefer to look at it the other way round: as the respective Parties gained power, they chose not to dispense with the law and state entirely but to preserve it and use it for their own ends, even though the respective party structures were not subsumed into the state apparatus but existed alongside it. In Nazi Germany, most of the Weimar Republic legislation, including, at least nominally, the Weimar Constitution, remained in force even though were substantially weakened under new, Nazified, interpretation.43 Additionally, the Nazi regime promulgated new legislation, such as the aforementioned infamous Nuremberg Laws. The same happened with legal institutions such as courts – they remained, even though staffed with those sharing Nazi sensibilities, and supplemented by additional institutions such as the People’s Court that was established to specifically deal with ‘political’ offences. In the early Soviet Union, unlike in Nazi Germany, the ‘bourgeois’ pre-revolutionary law, legal institutions, and even legal thought were initially dealt away with and talk of ‘withering

Kramer (1999), 67. This idea has been advanced by many, including Weber (1946), 77, and Kelsen (2006), 21ff. 42 Kelsen (2006), 21. 43 See e.g. Rüthers (1988). As Paulson notes, ‘[s]tatutory law that had been valid before 1933 remained for the most part on the books. Rather than waiting for the introduction of new statutory law, judges and other officials in Nazi Germany simply departed from the language of existing law whenever and wherever that was called for.’ Paulson (1994), 331–32. 40 41

The problem of evil law  717 away’44 of the law and state was prevalent. However, Stalin’s ‘socialism in one country’ policy turned the tide and led, on the contrary, to bringing the law and state back on the agenda through extensive lawmaking culminating in the 1936 Constitution, repurposing familiar legal institutions such as courts for the regime’s goals including infamous ‘show trials’, and bringing back and strengthening the ‘new’ legal institutions such as the Procuracy.45 As a result, religion, morality or ideology are made into law when it comes to purporting to coordinate the society. 3.3 Coordination The second purpose of law that evil regimes can benefit from is coordination. Kramer writes, again contrasting legal systems with a gunman’s hostage-taking, that [A] full-fledged legal system [...] may encompass thousands and even millions of officials. Unless there obtain multiple general norms to co-ordinate [emphasis mine] the operations of those officials, their operations will be spectacularly inefficient and perhaps impossible. And unless those norms are structured and implemented in accordance with Fuller’s precepts to a large degree, they will not enable the necessary co-ordination.46

To add to Kramer’s statement, the issue of coordination is relevant not just to millions of officials, but even more ordinary citizens, for whom ‘a system of legal governance presents citizens with definite indications concerning what is demanded of them.’47 Therefore, authorities – including legal authorities – make their subjects’ lives easier. But what, if anything, does it have to do with evil law? A critic may say an evil regime will not care for the good life of its citizens, and hence have no need to coordinate their affairs. However, coordination still matters to evil regimes in the following two ways. One is that coordination is needed to further an evil regime’s own evil plans. As demonstrated above, evil regimes can have goals other than merely securing compliance, served mainly by the coercive function of law. such as extermination or subjugation of minority groups.48 Even the regimes’ collaborators are willing to cooperate in their pursuits, or, as indicated above, are coerced into doing so, they still need to converge on the best way of proceeding with them. This is something which law can aid in the ways described in the previous paragraph, otherwise such projects would be, in Kramer’s words above, ‘spectacularly inefficient and perhaps impossible’.49 As a result, the coordination function remains central to law even in the context of evil regimes. One final question remains: Why law? That is, cannot one coordinate by other means? I side with Finnis, who, drawing upon what he called the ‘“procedural” features of law’, put forward three reasons why law is a superior coordination tool. The first argument was based on ‘law’s legislative capacities [...] [that] hold out the prospect of generating relatively prompt but also relatively clear and subtle solutions to coordination problems as they emerge

46 47 48 49 44 45

This thesis goes back to Engels (1987), 268. I explore it in more detail in Lukina (2002). Kramer (1999), 70. Kramer (2004), 69. See Section 2.3. Kramer (1999), 70.

718  Research handbook on the politics of constitutional law and change’.50 What Finnis probably meant by that is that a legal system provides a clear and definite guide to who we must consider an authority and what we must see as their pronouncements. Finnis’s second argument is that ‘[law’s] modes of application and enforcement [...] will be imposed on free-riders and other deviants so that the willing collaborator in the legally required coordination solution can have some assurance that he is not a mere sucker or fall-guy.’51 In other words, law’s coercive capacities as described above can, together with law’s legitimating force hinted at in the following section,52 ensure that the solutions for various problems that good and evil regimes face will be adhered to by all. Finally, Finnis notes that the coercive capacities are ‘so structured as to minimize the unfairnesses perpetuated by enthusiasts who demand conformity to their exhortations, propaganda, or customs.’53 This, however, unlike the other reasons for choosing law as the instrument for coordination, would not have much sway among the actors of an evil regime as they would be interested in this ‘fairness’ only as a means to an end, such as its usefulness for legitimisation and education purposes, while it is clear that for Finnis the fairness in question would be an end in itself. Still, Finnis gives a compelling account of how the law is particularly powerful when it comes to resolving coordination problems, but we must not forget that this power can be wielded not just for the good that Finnis aspires to, but also for great evil. A striking example of coordination in Nazi Germany was its efforts towards rearmament and revitalisation of the economy. In August 1936, Hitler, willing to expand Lebensraum (‘living space’) for Germans by force and concerned about the inevitability of the war with the Soviet Union, issued a secret Four Year Plan Memorandum. The memorandum said that ‘I. The German army must be operational [...] [and] II. The German economy must be fit for war within four years.’54 He put Göring in charge of executing it as its general plenipotentiary, ‘present[ing] decrees empowering him to take responsibility for virtually any aspect of economic policy.’55 Since Hitler was known not to be fond of putting his orders on paper, it demonstrates how important he saw the task at hand.56 While not a typical legal source, the memorandum can be read as law, especially since Hitler’s will was seen this way according to the Führerprinzip. The memorandum, as well as Göring’s subsequent decrees, was therefore a good example of law serving coordinative purposes in pursuit of what Hitler saw as necessary for the German state. In Stalin’s Soviet Union, law was needed to further another large-scale project – namely the building, as mentioned before, of ‘socialism in one country’. Strengthening the new state required a large-scale reform of both agriculture (collectivisation) and industry (industrialisation). A series of Five Year Plans, in 1928, 1932, and 1938, were adopted to serve this purpose. The Plans were adopted via Resolutions of the Congresses of the All-Union Communist Party (Bolsheviks). While these Congresses were represented by the Party rather than the state, as stated above, the Party and the state were fused together,57 so the Plans could be considered Finnis (2011), 71. Ibid. 52 See Section 3.4. 53 Finnis (2011), 71. 54 As reproduced in Adam Tooze, The Wages of Destruction: The Making and Breaking of the Nazi Economy (1st Penguin Edition, Penguin 2007) 222. 55 Ibid, 223. 56 Ibid, 219. 57 See Section 3.2. 50 51

The problem of evil law  719 legal documents. These Plans included goals set for a five-year period that were often specified down to specific numbers of goods that were to be produced, and ways of achieving them. As an example, consider the Second Five Year Plan (1933) that was in place at the same time as the Great Terror. The Resolution of the XVII Congress of the All-Union Communist Party (Bolsheviks) stated that the overall production by 1937 should reach 92.7 billions of roubles, or 214.1% of the manufactured good as per the 1932.58 To achieve that goal, the manufacturers were tasked to improve their technical capabilities, improve energy production, and so on.59 As a result, the Plans were a good illustration of how laws can be used to achieve coordination necessary to secure a future of any regime, evil or not. 3.4 Legitimation There are three additional ways in which law can be serviceable to evil regimes in addition to coercion and coordination outlined by Kramer. The first one is legitimation. Fallon distinguishes three senses of legitimacy – as a legal concept, as a moral concept, and as a sociological concept.60 In this section, I will focus on the last – sociological, or ‘thin’ concept of legitimacy as ‘an active belief by citizens, whether warranted or not, that particular claims of authority deserve respect or obedience for reasons not restricted by self-interest.’61 The legal form, I argue, bolsters this kind of legitimacy. This was noted by Weber, who recognised ‘legal-rational authority’ among three ideal types of legitimate authority, alongside ‘charismatic authority’ that comes from the authority’s personal leadership qualities and ‘traditional authority’ that is built on a long-standing custom. To contrast, when it comes to legal-rational authority, [T]here is domination62 by virtue of 'legality,' by virtue of the belief in the validity of legal statute and functional 'competence' based on rationally created rules. In this case, obedience is expected in discharging statutory obligations. This is domination as exercised by the modern 'servant of the state' and by all those bearers of power who in this respect resemble him.’63

Weber writes that ‘[i]t is obvious that technically the great modern state is absolutely dependent upon a bureaucratic basis [...] the larger the state, and the more it is or the more it becomes a great power state, the more unconditionally is this the case.’64 This is why the legal-rational authority, the only mode of authority possessed by a bureaucrat devoid of either traditional or charismatic power, becomes uniquely important. Where does the legitimacy of this kind of authority come from in the eyes of those who perceive it? Matheson writes that there are two bases of Weberian legitimacy. One is convention, which ‘is present in so far as power-holders № 1 Из резолюции XVII съезда ВКП(б) ‘О втором пятилетнем плане развития народного хозяйства СССР (1933–1937 гг.)’ 1934 Section I, 2. 59 Ibid, Section I, 3. 60 Fallon (2005), 1792–801. 61 Ibid, 1795. See also Weber (1964), 382. One of the chapters of this volume defines both legitimation and education (as introduced in Section 3.5) through the term ‘legal ideology’. Its analysis of this term is complementary to this discussion as it goes in more detail about how ‘legal ideologies’ appear, operate, and decline (Novkov, Chapter 3). 62 In the original, ‘Herrschaft’, which is better translated as ‘rule’. 63 Weber (1946), 79. 64 Weber (1946), 211. 58

720  Research handbook on the politics of constitutional law claim legitimacy upon the basis of “legality.”’65 The other is rationality of law, which ‘is present in so far as power-holders claim legitimacy on the basis that laws which prescribe command and obedience have been “enacted”, that is, rationally established.’66 For these two reasons, law is legitimating. Even more so, it is self-legitimating, as the legal norms are seen as worth following purely because they are legal. The legitimating function of law is particularly needed when it comes to evil law. First, in evil regimes most citizens, who are not committed ideologues, might have relatively few (if any) non-prudential reasons to conform with morally iniquitous legal rules.67 Law’s perceived inherent legitimating force adds to those reasons, therefore tipping the balance. The common trope of actors in such a regime ‘just following orders’ speaks to the effect legitimation can have on one’s free will, eventually causing the law-subjects to blindly accept the authority. Second, legitimacy brought in by law makes it harder to criticise and resist the legal system as a whole. While recognising that some laws in such a system might be morally iniquitous, someone taken by its claims to legitimacy can at the same time dismiss them as mere bugs in, rather than features of the otherwise legitimate system. Some may disagree that the authority of evil legal systems is indeed legal-rational, especially when it comes to two major totalitarian states of the twentieth century – Stalinist Soviet Union and Nazi Germany. For instance, as Beetham notes,68 some have categorised the Communist model of government as charismatic,69 some – as traditional,70 while some – as a ‘goal rational’ authority.71 The same observations can be made about Nazi Germany that can also be slotted into any – or none – of the categories defined by Weber. Beetham claims that this ambiguity makes Weber’s typology ‘incoherent’.72 however, I believe that it – and the ‘legal-rational’ label – can still be salvaged. In particular, one should bear in mind that Weber’s categories are ‘ideal types’ rather than mutually exclusive categories in which all authorities can neatly fit in. As Weber himself confesses, ‘[t]o be sure, the pure types are rarely found in reality’.73 As such, it is possible for a legal order to exhibit charismatic, traditional, and legal-rational features at the same time. In other words, despite containing both ‘charismatic’ and ‘traditional’ features, Stalin’s Soviet Union and Nazi Germany vested a lot of their authority in law and hence relied on ‘legal-rational’ legitimacy. This has a lot to do with the fact that those modern legal systems, as stated above, could not function without a bureaucratic apparatus that could not be legitimised via appeal to tradition or charisma. As a particularly vivid example, after the Night of the Long Knives, when Hitler’s inter-party political enemies were extrajudicially killed by the Sturmabteilung (SS), Security Service, and Gestapo from 30 June to 2 July 1934, the ‘Law Regarding Measures of State

Matheson (1987), 211. Ibid. 67 The same problem is served by law’s other two functions: education and propaganda and creation of identities, expressed below. 68 Beetham (1991), 37. 69 Gill (1982), cited by Beetham (1991), 37. 70 Lane (1984), 211ff., cited by Beetham (1991), 37. 71 Rigby (1982), cited by Beetham (1991), 37. While Rigby names this type of authority as additional to the ones outlined by Weber, Weber refers to a similar concept of ‘value rationality’ in his other work. Weber (1978), 399–400. 72 Beetham (1991), 37. 73 Weber (1946), 79. 65 66

The problem of evil law  721 Self-Defence’ had been passed on 3 July by Hitler, Reich Justice Minister Franz Gürtner, and Minister of the Interior Wilhelm Frick. The incredibly concise Law, comprising of only one Article, stated that ‘[t]he measures taken on June 30, July 1 and 2, 1934 to suppress high and treasonous attacks are legal as state self-defence.’74 It is impossible to conceive any other purpose of such a Law other than to use of the legal form in order to retroactively legitimise the political purge taken place days before. As such, it remains a rather rare example of a purely legitimating legal provision. Stalin’s Constitution of the USSR (1936) is another, albeit less blatant, example of legitimating rules. Chapter X of that Constitution detailed a lengthy catalogue of fundamental rights of Soviet citizens. Moreover, even more strikingly, unlike the previous RSFSR Constitutions of the 1918 and 1925 under which electoral rights were denied to former ‘exploiting classes.’75 Article 135 established universal suffrage.76 Needless to say, the Soviet people did not get what they were promised on paper. One can most clearly see it in juxtaposition of the declared personal and political rights with the terror campaigns of 1936–1938. As for the first, 1937, election – of the Supreme Soviet of the Soviet Union, the top legislature, the Plenum of the General Committee has banned contested elections in the upcoming voting – only one candidate would stand for each position. Nevertheless, the Constitution was important, even if it was mostly honoured in the breach. In his study of Stalin’s Constitution, Getty emphasised its obvious ‘propaganda value.’77 This propaganda was directed both within and outside of the Soviet Union. Firstly, at home, the Constitution served as a yet another proof of success of Stalin’s new ‘Socialism in one country’ policy and was, at least publicly, received with great enthusiasm by its subjects.78 Second, the Constitution was also used to gain the support for the Soviet Union from abroad – which was, interestingly, required to counter the rise of another paradigmatically evil regime – Nazi Germany (together with Fascist Italy) – by providing a contrast to Nazi (as well as Fascist) political terror coinciding with the Constitution’s enactment.79 3.5 Education Education through law – not to be confused with legal education or laws about education – was a function of law that was recognised even at the time of the ancients – as Burge-Hendrix, notes, according to Plato, Aristotle and Cicero, law was ‘necessarily an educator’.80 As per Aristotle in the Nicomachean Ethics, ‘lawgivers make the citizens good by training them in habits of right action’.81 In other words, law helps us become better citizens by compelling us to behave virtuously, which becomes a habit once repeated a sufficient number of times. Education can therefore be distinguished from coordination and legitimation as explored above. First, to Burge-Hendrix, ‘[t]here is a difference between simply learning from some Gesetz über die Maßnahmen der Staatsnotwehr 1934. Constitution of the Russian Soviet Federative Socialist Republic 1918 Art. 65.; Constitution of the Russian Soviet Federative Socialist Republic 1925 Art. 69. 76 Constitution (Fundamental law) of the Union of Soviet Socialist Republics 1936. 77 Getty (1991), 19. 78 Velikanova (2018), 52–61. 79 Getty (1991), 19. See also Velikanova (2018), 49–52, 61. 80 Burge-Hendrix (2007), 245. 81 NE 1103b3–6, as cited in Hitz (2012), 265. 74 75

722  Research handbook on the politics of constitutional law thing and being taught by it – we can distinguish the inadvertent educational effects of law from the idea that a legal system is an educator whose effects are deliberate and intentional.’82 The habits acquired in the process of coordination are akin to the ‘inadvertent educational effects’ Burge-Hendrix mentions. Education, on the other hand, is a result of a conscious strategy adopted by the lawmaker. Secondly, unlike legitimation, education aims not to provide additional reasons for action on top of the reasons that already apply to the law-subject, but change the latter. In this way, the educational function entails law going deeper, penetrating the law-subject’s very psyche.83 To Aristotle, education ‘is the aim of all legislation, and if it fails to do this it is a failure; this is what distinguishes a good form of constitution from a bad one.’84 This can be read in two ways – either referring to habituation into virtue or habituation in general, including habituation not merely into virtues, but also into vices. While the first reading would make Aristotle’s theory irrelevant to the nature of evil law, there is some support to the latter, more expansive understanding that is fully compatible with applying it to the subject matter of this chapter. As Hitz emphasised, this reading is possible, citing Aristotle’s statement in Politics that ‘habits are necessary for any regime, no matter what its goals or principles.’85 Therefore, the educational function of law remains relevant even for evil regimes. The educational function of law in Nazi Germany was particularly vividly exemplified by the Nuremberg Law for the Protection of German Blood and German Honour, the application of which fashioned a new sexual morality. As Szobar notes, ‘[l]egal rhetoric enforced a normative definition of sexuality that was racist and sexually conservative in its implications, condemning as “perverse" all sexuality not designed to produce racially pure offspring within the bonds of marriage.’86 In the courtroom, this ideal was promoted by creating images of Jewish men and women accused of defilement as sexually promiscuous and cunning87 of Aryan men involved in mix-race relationships – or even those accused of ‘letting’ their wives to pursue extramarital relations with Jews88 – as unintelligent and weak-willed,89 and of Aryan women – as intrinsically pure, but at the same time similarly corruptible.90 All these deviations from the Nazi mores were not just punished by law (in the case of male defendants), but also criticised by judges (in the case of both male defendants and female weaknesses) in construction of a racialised ‘legal narrative’.91 Similarly, in the Soviet Union, as Berman famously noted, the law performed a ‘nurturing’ function, according to which the law-subject is ‘treated less as an independent possessor of rights and duties, who knows what he wants, than as a dependent member of the collective group, a youth, whom the law must not only protect against the consequences of his own

Burge-Hendrix (2007), 245. The aforementioned chapter from this volume on ‘legal ideology’ does not make this distinction, but nevertheless captures some insights relevant to education as well as legitimation (as seen in Section 3.4) (Novkov, Chapter 3). 84 NE 1103b3–6, as cited in Hitz (2012), 265. 85 Ibid, citing Pol.1310a12–25. 86 Szobar (2002), 158. 87 Ibid, 147–48. 88 Ibid, 149. 89 Ibid, 148–49. 90 Ibid, 149–52. 91 As I call it, in relation to the Soviet criminal proceedings, in Lukina (2016). 82 83

The problem of evil law  723 ignorance but must also guide and train and discipline [emphasis mine].’92 This emphasis on nurturing, to him, ‘presupposes a new conception of man.’93 This ‘New Soviet Man’ was constructed through various legal means, including the court system – which I will focus on now.94 Article 3 of the 1938 Statute on the Judiciary of the USSR, Soviet, and Autonomous Republics stated that the Soviet court, in addition to deciding cases, educates Soviet citizens in the spirit of faithfulness to their Motherland and the task of socialism, in the spirit of precise and steady obedience of Soviet laws, careful attitude towards socialist property, honest attitude to state and public duties, and respect for the rules of socialist society.’95

The timing of this statute coincides with the infamous Stalinist ‘show trials’ that were the epitome of the educational function of law during the Great Terror, where the judges were aided by the trial participants – including the defendants themselves through forced confessions – to create a legal narrative favourable to the Soviet Union that stated, among other things, how a Soviet citizen ought to behave. 3.6

Identity Building

3.6.1 In-group The final function of a legal system I consider is identity-building. Law, like other social tools, can be used to either bring different actors together in a unified society, or, conversely, identify different groupings within it. In cases of evil law both these mechanisms become even more important – as we will see, quite paradoxically, they coexisted and reinforced each other. First, any legal system needs to convince law-subjects to coordinate in pursuit of a common goal. Sharing a common identity, while being not the only means of doing so, provides them with a reason to set aside their individual prudential reasons and moral convictions against complying with the legal authority’s directives. Identity-building via law for the purpose of smoothing legal coordination is particularly important when it comes to evil law which needs to persuade the law-subjects to behave immorally, contrary to, at times, not just the critical morality, but also, at times, positive morality. Of course, law is not the only way of building a common identity, just as law is not the only way to coerce, coordinate, or educate, but it is a particularly efficacious one. One way law can build communal identities is inherent in the nature of law itself as a set of rules enforced in a particular community. Campbell describes this dynamic as follows: ‘[q]uite apart from the organisational and other instrumental benefits of rules, adherence to the same set of rules is an important bonding mechanism which constitutes membership of a group and gives communal identity to the individuals concerned.’96 This is just as true of evil law as it is to non-evil law. Another way law can build identities is by introducing them into law. In Nazi Germany, Volksgemeinschaft, or ‘people’s community’, was such a concept. It was essentially a utopian promise where everyone belonging to the Volk, or the German people, would no longer be divided among the social or political lines, producing a single will 94 95 96 92 93

Berman (1963), 283. Ibid, 284. I give a fuller account of these in Lukina (2021). Закон СССР о судоустройстве СССР, союзных и автономных республик 1938. Campbell (1996), 56–57.

724  Research handbook on the politics of constitutional law enforced by the Führer. This was not only a part of political rhetoric, but also elevated law to a special status. As Glungler, a Nazi legal theorist, said, ‘[l]aw’s purpose is not to secure the so-called individual sphere and thus private life [...] [t]he law of the state as the foundation of life for the Volksgemeinschaft has priority.’97 The unity promised by the Volksgemeinschaft was grounded in the exclusion of certain identities – Jews, Roma, homosexuals, and the disabled – and political opponents, such as Communists. Thus, as can be also seen below, the law was mandated to demand this exclusion for the sake of protecting the Volksgemeinschaft. Stalinist politics of ‘socialism in one country’ similarly demanded there to be unity among the Soviet people. Vyshinsky, the most influential legal scholar at the time, as well as the infamous prosecutor in the Moscow Show Trials, wrote that, unlike the bourgeois states, where ‘allusions to the will of the people served as a screen which veiled the exploiting nature of the bourgeois state’, in the Soviet Union, ‘there has been formulated among us, a single and indestructible will of the [S]oviet people [emphasis mine]’.98 This was one of the instances of the ‘swing from class discourse to the supranational discourse of narod (people)’.99 However, class divisions still remained, as we will see. Most strikingly, the very first article of Stalin’s Constitution100 read as follows: ‘[t]he Union of Soviet Socialist Republics is a socialist state of workers and peasants [emphasis mine]’. Vyshinsky attempted to address the problem by stating that ‘[a]mong us, the will of the working class merges with the will of the entire people [...] [t]his provides the basis for speaking of our soviet socialist law as an expression of the will of the whole people.’101 This move, while inelegant, highlights how social unification and social stratification were not fundamentally opposed in the Soviet context. Like in Nazi Germany, this unity demanded the perceived enemies of the Soviet state be crushed. 3.6.2 Out-group Secondly, legal systems often need to identify not just an in-group, but also an out-group. The importance of the latter was particularly well captured by Schmitt, who famously argued that the political relation was organised according to two opposing categories – friend and enemy.102 While, to Schmitt, this is a higher-order political claim that does not always map onto legal distinctions (such as the distinction between a citizen or non-citizen), here I focus on laws that tap into and support that division. Identifying an out-group not only justifies the mistreatment of those belonging to that group, but also strengthens the in-group sense of belonging by creating a sense of a common threat that the community has to be protected from. In Nazi Germany, as early as 15 September 1935, the Reichstag enacted The Reich Citizenship Law,103 Article 2(1) of which stated that ‘a citizen of the Reich may be only one who is of German or kindred blood, and who, through his behavior, shows that he is both desirous and personally fit to serve loyally the German people and the Reich.’ In the aforementioned First Regulation of 14 November 1935, it was clarified that ‘A Jew cannot be a citizen of the Reich. He cannot exercise the right to vote; he cannot hold public office (Article 4(1))’.

Glungler (1941), 301, as cited and translated by Meierhenrich (2018), 100. Vyshinsky (1951), 339. 99 Velikanova (2018), 53. 100 Constitution (Fundamental law) of the Union of Soviet Socialist Republics. 101 Vyshinsky (1951), 339. 102 Schmitt (1996), 26. 103 Reich Citizenship Law. 97 98

The problem of evil law  725 In a particularly visceral rendering of ‘friend-enemy’ politics, in 1941 the Nazi government enacted the Police Decree on the Identification of Jews,104 ‘Jews [...] who have reached the age of six years, [were] forbidden to appear in public without a Jewish star’ (§ 1 (1)). The labelling continued even in concentration camps, where different categories of inmates – Jews, homosexuals, political prisoners, criminals and so on – had to wear an identification badge recognising their category. ‘[That] system of categories,’ Sofsky writes, ‘acted as a mechanism for differentiation. It created distances, intensified antagonisms and drew lines of social demarcation that none could cross.’105 In a similar manner, the Soviets ironically, considering their end goal of class abolition, ultimately embraced class categorisation. One’s social background was tremendously important for the interaction of the Soviet citizens with the state. In his work on the Soviet passport system, Baiburin explains how this social stratification was reinforced on two levels. Firstly, only those who could be described as having an ‘appropriate’ background – toilers, white-collar workers (‘служащие’), peasants working in collective farms (kolkhozy) and so on – were entitled to have such a passport in the first place.106 Many others, such as kulaks, former members of exploiting classes (‘бывшие’), and those who did not work (‘дармоеды’ or ‘parasites’), were denied such a privilege.107 Having a passport was essential for living in cities, and the system described above was used to filter out those whom the Soviet state wanted to exclude.108 Secondly, social status was recorded in passports, creating an ‘official social hierarchy, on top of which were the toilers’.109 An even more stark illustration of the Soviet friend-enemy politics was an infamous category of the ‘enemy of the people’. In an interesting twist, this term dates back to Ancient Rome – hostis publicus, or public enemies, individuals who were declared as such by the Senate and treated as a stranger and a foe of the community. Famously, Schmitt juxtaposed hostis and inimicus (or private enemy), stating that only the former could underlie the political.110 Centuries after the Ancient Rome fell, the very same term was used in Stalin’s campaign of terror in the 1930s. It featured in Stalin’s 1936 Constitution111 which, in contradiction to its surprisingly liberal bent explained above,112 stated in its Article 131 that ‘[p]ersons committing offenses against public, socialist property are enemies of the people.’

4. CONCLUSION To talk of ‘evil law’ is to define a paradox. On the one hand, as per Simmonds, the legal form places fetters on evil regimes by foreclosing extra-legal terror which can thwart some of the evil regimes’ goals. As a result, one would find there being little need for evil regimes Police Decree on the Identification of Jews 1941. Sofsky (2013), 123. See generally ibid, 117–30. 106 Альберт Байбурин, Советский Паспорт: История, Структура, Практики (Издательство Европейского Университета 2019) 241–242. 107 Ibid, 243. 108 Ibid, 241. 109 Ibid, 242. 110 Schmitt (1996), 28. 111 Constitution (Fundamental law) of the Union of Soviet Socialist Republics. 112 See Section 3.5. 104 105

726  Research handbook on the politics of constitutional law to govern by law. But we know that evil regimes such as Nazi Germany and Stalin’s Soviet Union in fact made use of it. As onerous as the burden of subscribing to the legal form entails for evil regimes, it is coupled with significant benefits such regimes can reap from the Rule of Law. It can serve the evil goals of such regimes – Simmonds’ own ‘chilling effect’ as well as others such as targeting specific minority groups – well because of its multiple functions. These are coercion and coordination as mentioned by Kramer, and my own additions – legitimation, education, and identity-building. This is true of the two ‘central cases’ of evil regimes – Nazi Germany and Stalin’s Soviet Union. Even more so, these conclusions remain relevant to contemporary authoritarian legal orders facing a similar ‘double bind’ of terror and legality – from established autocracies Russia and China to emergent populist regimes such as Poland and Hungary – as explored in more detail in the rest of this volume. Because of this, I side with Kramer over Simmonds and believe that such legal systems are, in aggregate, helped rather than hindered by law. As per Raz’s apt analogy, the Rule of Law is akin to the sharpness of a knife113 – it can be used both to protect and to kill.

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The problem of evil law  727 Kramer, Matthew H. (2004). ‘The Big Bad Wolf: Legal Positivism and Its Detractors,’ American Journal of Jurisprudence 49: 1–10. Kramer, Matthew H. In Defense of Legal Positivism: Law Without Trimmings (Oxford University Press, 1999). Kramer, Matthew H. Where Law and Morality Meet (Oxford University Press, 2008) . Lane, Christel. (1984). ‘Legitimacy and Power in the Soviet Union through Socialist Ritual,’ British Journal of Political Science 14: 207–17. Lösener, Bernhard in Karl A Schleunes (ed), Carol Scherer tr. Legislating the Holocaust: The Bernhard Loesener Memoirs and Other Documents (Westview, 2001). Lukina, Anna. (2016). ‘The Semenchuk Case of 1936: Storytelling and Propaganda above the Law in the Soviet Criminal Trial,’ Review of Central and East European Law 41: 63–116. Lukina, Anna. (2020). ‘Angels, Demons, Us: Raz and Aquinas on Law’s Necessity’ (Social Science Research Network, 2020) SSRN Scholarly Paper ID 3704242. Lukina, Anna. (2022). ‘Between Exception and Normality: Schmittian Dictatorship and the Soviet Legal Order,’ Ratio Juris 35: 139–57. Lukina, Anna. (2021). ‘Legal Nurturing: The Educational Function of Law in the Soviet Union,’ The Ideology and Politics Journal 2(18): 57–75. Martin, Terry. (1998). ‘The Origins of Soviet Ethnic Cleansing,’ Journal of Modern History 70: 813–61. Matheson, Craig. (1987). ‘Weber and the Classification of Forms of Legitimacy,’ British Journal of Sociology 38: 199–215. Meierhenrich, Jens. The Remnants of the Rechtsstaat: An Ethnography of Nazi Law, 1st edition (Oxford University Press, 2018). Paulson, Stanley L. (1994). ‘Lon L. Fuller, Gustav Radbruch, and the “Positivist” Theses,’ Law and Philosophy 13: 313–59. Raz, Joseph. (2006). ‘The Problem of Authority: Revisiting the Service Conception,’ Minnesota Law Review 90: 1003–44. Raz, Joseph. ‘The Rule of Law and Its Virtue’ in The Authority of Law: Essays on Law and Morality (Clarendon Press; Oxford University Press, 1979). Raz, Joseph. Practical Reason and Norms (Oxford University Press, 1999). Rigby, TH. ‘Introduction: Political Legitimacy, Weber and Communist Mono-Organisational Systems’ in TH Rigby & Ferenc Fehér (eds) Political Legitimation in Communist States (Palgrave Macmillan UK, 1982). Rüthers, Bernd. Die unbegrenzte Auslegung: zum Wandel der Privatrechtsordnung im Nationalsozialismus (3. Aufl., Müller). Schmitt, Carl in George Schwab tr. The Concept of the Political (University of Chicago Press, 1996). Shapiro, Scott. ‘Authority’ in Scott Shapiro & Jules L. Coleman (eds). The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press, 2002) 400–401. Simmonds, Nigel E. (2005). ‘Law as a Moral Idea,’ University of Toronto Law Journal 55: 61–92. Simmonds, Nigel E. (2004). ‘Straightforwardly False: The Collapse of Kramer’s Positivism,’ (2004) Cambridge Law Journal 65: 98–131. Simmonds, Nigel E. Central Issues in Jurisprudence: Justice, Law and Rights (Sweet & Maxwell, 1986). Simmonds, Nigel E. Central Issues in Jurisprudence: Justice, Law and Rights (Sweet & Maxwell, 2002). Simmonds, Nigel E. Law as a Moral Idea (Oxford University Press, 2008). Sofsky, Wolfgang in William Templer tr. The Order of Terror: The Concentration Camp (Course Book, Princeton University Press, 2013). Stewart, Hamish. (2006). ‘Incentives and the Rule of Law: An Intervention in the Kramer/Simmonds Debate,’ American Journal of Jurisprudence 51: 149–64. Szobar, Patricia. (2002). ‘Telling Sexual Stories in the Nazi Courts of Law: Race Defilement in Germany, 1933 to 1945,’ Journal of the History of Sexuality 11: 131–63. Tooze, A. The Wages of Destruction: The Making and Breaking of the Nazi Economy (Penguin, 2007). Velikanova, Olga. Mass Political Culture under Stalinism: Popular Discussion of the Soviet Constitution of 1936 (Palgrave Macmillan, 2018). Vyshinsky, Andrey. ‘Fundamental Tasks of Soviet Law’ in Hugh W Babb (tr) Soviet Legal Philosophy (Harvard University Press, 1951).

728  Research handbook on the politics of constitutional law Weber, Max. ‘Bureaucracy’ in Hans Gerth & C. Wright Mills (eds) From Max Weber: Essays in Sociology (Oxford University Press, 1946). Weber, Max. ‘Politics as a Vocation’ in Hans Gerth & C. Wright Mills (eds) From Max Weber: Essays in Sociology (Oxford University Press, 1946). Weber, Max in Guenther Roth & Claus Wittich (eds). Economy and Society: An Outline of Interpretive Sociology (University of California Press, 1978). Weber, Max in Talcott Parsons (ed) & Alexander Morell Henderson & Talcott Parsons (trs) The Theory of Social and Economic Organization (Free Press of Glencoe, 1964).

Index

Aahuliwalia, S.S. 687 Abat i Ninet, A. 638 Abe, S. 177, 178, 184, 185, 186–91, 192, 193, 194 Abkhazia 128–9, 130, 131, 133–6, 138–9, 140–141, 425 abortion 115, 199, 206, 436, 457, 635, 650, 651 Abrams, K.R. 80 Abranches, S. 239 Abrucio, F.L. 228, 234 abusive constitutionalism 10, 629, 643 Japan 177, 188, 190–191, 192, 194 accountability 109, 115, 163, 368, 425, 504 constitutional 106 federalism in Latin America 238, 239 Japan: democratic 188, 190 judicial 210, 247–8, 265, 267, 268, 583 political 54, 55 republicanism 315 Acemoglu, D. 15–16, 49, 56 Achiume, T. 9 Ackerman, B. 99, 143, 144, 145–7, 149, 150, 151, 168, 179, 184, 194, 224, 434 Adams, J. 484, 499, 504 Adamski, D. 706 Adeney, K. 527 Adorno, T. 576 affirmative action 40, 491–2, 515 South Asia 529 India 522–3, 525–6, 527, 528 protection or affirmative action 526–8 Afghanistan 424, 426, 438, 475, 505, 674, 680 Africa 3, 262, 278, 517, 558 Southern 273 West 563 see also individual countries Aglietta, M. 405 Ahmed, A. 501 Alavi, H. 517 Albania 702–3 Alberdi, J.B. 229 Albert, R. 152, 189 Alemanno, A. 625 Alexander, J. 636 Allan, T.R.S. 204 Allezard, L. 615 Allport, G. 82 Almog, G. 179 ‘alternative facts’ 51, 456

Amato, G. 396 Ambedkar, B.R. 677, 681, 682 American Convention on Human Rights 240 Anagnostou, D. 641 Andersen, D.D.E. 505 Anderson, E. 16, 17, 21, 494 Anderson, P. 8, 387, 401–2 anger 80–81, 82, 84 animal citizenship 556 animal rights 443 Ansong, A. 412 anti-discrimination see discrimination/ non-discrimination Anzai, F. 180 Arana, A. 277 Arato, A. 638 Ardanaz, M. 239 Arendt, H. 94, 101, 495, 496, 505, 554, 564 Argentina 217, 218, 219, 221, 222–3, 637, 690 federalism 228, 229, 230, 231, 232–3, 234–7, 238, 239–41, 242 Aristotle 1, 14, 70, 80–81, 313, 721, 722 Armenia 134, 137, 702–3 arms, right to bear 443 Arnold, T.W. 74, 100 Arretche, M. 229 Arrington, N.B. 277 Asia 3, 262, 287, 290, 467, 468–9, 480 minorities: view from South 514–29 South-East 275 see also individual countries Asō, T. 188 assembly, freedom of 83, 84, 660, 661, 698 association, freedom of 118, 602, 660, 663–4, 666–7, 669–70 austerity and EU 397–402 Austin, J. 439–40 Australia 120, 121, 262, 558 Austria 269, 290, 396, 402, 404–5, 489, 667 Austria-Hungary 83 authoritarianism 92, 99, 100, 153, 154, 161, 170, 179, 223, 228, 605, 607, 726 competitive 702–4 courts and transition from 41–2, 43 dissidents: compartmentalisation 51 Emergency in India 684 emotions 78, 81–2 identity, constitutional 611, 613–14 judicial governance 263

729

730  Research handbook on the politics of constitutional law judicial independence 256, 257 legalistic autocrats 643, 699 merit and democracy 497–8, 499, 500, 505, 506 social 182, 189, 222–3 US: fears about pathways to 576–80, 582, 589 authority, legal-rational 719–21 availability heuristic 149 Avbelj, M. 276 Aviel, R. 456, 458 Aydin, A. 256 backlash movements 182, 263, 273, 468, 474, 495, 506, 634–5, 636–7, 638, 641, 642, 644–5, 650–653 bad faith see pretext analysis Baiburin, A. 725 Bajpai, R. 517 Baker, J. 254 Bakó, B. 620 Balkin, J.M. 4, 436, 487 Ballegooij, W. van 616 Baltic countries 133, 404 see also individual countries Ban, C. 404 Bandes, S.A. 70 Bangladesh 262, 477, 478, 518, 521–2, 523, 524, 674, 678, 690 refugees in India 679–80 banks 23 central see separate entry Bánkuti, M. 697, 698 Barak, A. 201 Barber, N. 362 Bárd, P. 620 Bari, M.E. 262 Barrett, A.C. 199 Barroso, J.M. 394 Baruch, M.-O. 379 Barzillai, G. 517 Basheska, E. 8 Baudoin, M.-É. 615 Baumeister, R.F. 72, 82 Beard, C. 575, 587 Beck, A.T. 82 Becker, C. 587 Bednar, J. 233 Beetham, D. 720 behavioural concepts 46–64, 506 cognitive limitations 50–53, 54, 55, 56, 59, 61–3 constitution making 149 context 55 implications 53–6

non-optimal currency union: EU 59–63, 64 political campaign finance in US 56–9, 64 satisficers 52–3, 61, 62 socially irrational individually rational behaviour 47–50, 63 collective action problem 49–50, 53, 54, 55–6, 59 extractive political institutions 49–50, 64 rational ignorance 48–9, 52, 53, 55, 56, 59, 62 rent-seeking 49–50, 53, 54, 56, 59 Behrend, J. 228 Béland, D. 237 Belarus 592, 702–3 Belavusau, U. 10, 593, 604 Belgium 83, 290, 489, 665, 667 Bellah, R. 194 Benelux countries 335–6, 337, 339 see also individual countries Benin 702–3 Benvenuti, S. 267, 271, 275, 276 Benvindo, J.Z. 230 Berlin, I. 493, 494, 496 Berman, H.J. 722–3 Bermeo, N. 696, 699 Bernhard, Prince 352 bias(es) 78 availability 149 cognitive 50–51, 52, 53, 54, 55, 56, 59, 61–3 emotional 50, 51, 62, 63 merit 486, 489, 491, 506 neoliberal bias of EU constitutional order 386–407 present 50, 53, 55 status quo 52, 55, 61 bicameralism 166, 193, 231, 232, 250, 699 Bickel, A. 582–3, 585, 587, 588 Biden, J. 192 Bieber, F. 703 Bilderberg Group 352–3 Bill Chavez, R. 262 Bill, S. 700 bin Laden, O. 171 Birchall, D. 364 Bird, C. 276 Black, R. 306 Blackstone, W. 120, 316 Blackwell, M. 278 Blair, T. 395, 396 Blisa, A. 269, 276 Blokker, P. 629, 701 Blum, J. 122 Blutman, L. 616 Bobek, M. 262, 265, 272, 278

Index  731 Bochsler, D. 698, 701, 706 Böckenforde, E.-W. 469–70 Boddice, R. 71 Bodin, J. 560 Boigeol, A. 277 Bolivia 216, 221, 223, 704 Bolsonaro, J. 228, 234, 239 Bonaparte, N. 484 Bonelli, M. 273 borders see liminal rights: sovereignty, constitutions and borders Bordo, M. 60 Börzel, T. 265 Bosniak, L. 106, 553, 559 bounded rationality 50, 54 Bourdieu, P. 5, 97, 469, 562 Bovens, M. 502 Boyd, C.L. 277 Braithwaite, J. 27–8 Brandwein, P. 34 Brazil 41, 42, 216, 221, 222–3, 637 federalism 228, 229–30, 231, 232–5, 237–9, 240–241, 242 judicial governance 269 merit and democracy 499, 500 breakaway regions see unrecognised entities Brekhus, W. 613 Brennan, J. 499 Brett, P. 262, 269, 273, 279 Breyer, S. 292 Bridges, K.M. 489, 491 Brier, R. 645, 647–8 Broadwater, J. 310 Broman, B. 252 Bruggeman, R. 615 Brunei 478 Buchanan, J. 47–8 Bugarič, B. 43, 698 Bui, N.S. 640 Bulgaria 617–18, 620 Bumiller, K. 36 Bunjevac, T. 262, 263, 265, 269 Burbank, S. 247 Burge-Hendrix, B. 721–2 Burr, A. 311–12, 317, 319, 323 Bush, G.W. 177 Bustos Gisbert, R. 264 Buti, M. 405 Çali, b. 271 Cambodia 168, 171, 702–3 Canada 98, 163 emergency powers 166 emotions 80 judicial dialogue 299–301, 302–3, 305, 306

Quebec 170, 303, 306, 473, 474 refugees 112–13, 115–16, 118 religion 468, 473–4 antidiscrimination law 473 rights, constitutional 435 secularism 468, 473–4 Supreme Court 272, 274, 290, 302, 306 immigration exceptionalism 106–8, 112–16, 118, 119–26 religion 473, 474 Caouette, J. 76 capabilities approach 494 capitalism 47, 388–9, 403 Caplan, B. 499 Capotorti, F. 516, 520, 522 Cardozo, B. 587 Carens, J. 556 Caribbean countries 237 Carothers, C. 704 Carrera, S. 627 Carrubba, C. 258 Casar, M.A. 241 Castagnola, A. 271 caste 41, 480, 515, 519, 522–3, 528, 677, 684 Castillo-Ortiz, P. 262, 265, 269, 270 Caturla, F. 231 central banks 61 European Central Bank (ECB) 59–63, 392–3, 401–2, 616–17 Central and Eastern Europe 91, 145, 149, 593, 595, 596, 597, 598–9, 604, 605, 645, 696, 700, 701–2, 703 judicial governance 262, 263, 273 see also individual countries Cesari, J. 81 Chakraborty, V. 688–9 Chalmers, D. 402 Chatterjee, L. 688 Chávez, H. 148, 263, 271 Chen, E.M. 277 Chetail, V. 120 Chile 42–3, 146, 217, 218, 223, 574–5, 637 Chilton, A. 3, 36 China 181, 184, 185, 186, 187, 192, 703, 726 free speech 439 Hong Kong 163, 169, 172, 290 judicial governance 271, 276 merit 483, 484, 498 UN Security Council 411 Ching, L. 189 Chinkin, C. 424 Cho, M. 257 Chomsky, N. 176 Choudhry, S. 464 Chronowski, N. 620, 621, 622

732  Research handbook on the politics of constitutional law Cianetti, L. 696, 697 Cicero 313, 721 Cichowski, R. 36 citizenship 105–6, 484, 492, 594 caste enforcement tool 551–3 contradictions 550–551 evil law 714, 724 human rights 550–551, 553–8, 559, 563 continued prestige of citizenship 564–5 India see Hindu Zion: constitutional accommodation passportisation 138–9 personhood 106, 559–62 territory 562–4 see also immigration; liminal rights: sovereignty, constitutions and borders civil society fundamentalism and populism 634–53 constitutional conflict 642–4 Poland 636–7, 642, 644–53 sociological approach 637–42 Clark, E.B. 79 class 82, 83, 94–5, 184, 386, 406, 489, 490, 491–2, 493, 495, 506, 507, 520, 575, 578, 580, 583, 700, 703, 724, 725 Classen, C.D. 616 clientelism 265, 275, 276, 499 climate change 161, 163, 172, 173, 364 Clinton, H. 57 Clopton, J. 319–20 Clore, G.L. 71 Closa, C. 705 Cockfield, Lord 356–9, 362 codification 73 Coenen, D. 456 cognitive biases 50–51, 52, 53, 54, 55, 56, 59, 61–3 cognitive neuroscience 71 Cohen-Eliya, M. 561 Coke, E. 254 Cold War 181, 184–5, 223, 696, 701 historical memory: Cold War and US constitutional law see separate entry collective action problem 49–50, 53, 54, 55–6, 59, 442 collective identity and historical memory see mnemonic constitutionalism Collins, J.J. 82 Colombia 43, 217, 218, 223 colonial legacies/colonialism 3, 76, 106, 118, 121, 152, 161, 181, 216, 220, 229, 273, 290, 438, 478, 517, 518, 526, 550, 593 citizenship 554, 557, 563, 564 India: law on 675–6, 677, 678, 679, 681, 684, 691

communist countries 270–271 companies see corporations compartmentalisation 51, 55, 59 conflicts of interest 366, 368, 416 Confucius/Confucianism 484, 498 Congleton, R. 49 consociationalism 526–7, 683 constitution making 143–61, 172, 178–9, 286, 310, 574–5, 605, 637–8 incremental approach 680–681, 684 interpretation and 201 Latin America 150, 215, 216–20, 221, 222, 224, 225, 226, 230, 286 Poland 645–8, 649 rights adoption 433, 434–8 seen as process in time 153 afterlife of processes 160 determining process to use 154–6 drafting 158–9 drafting body 156–7 proposal stage 154 submitting for approval 159–60 South Asia 518 India 519, 528, 675–6, 677–8, 680–687, 689, 692 theorisations Ackerman 145–7 Elster 147–9 imposed 152–3 non-crisis 153 post-conflict 150–152 post-crisis 149–50 consumer rights/protection 369, 395, 443 contextualisation 2–3 coordination problem 441, 442, 712, 717–18 Copland, I. 682–3 Coppedge, M. 248 core-periphery 92, 93, 228, 229, 235, 238, 288, 290, 405 corporations EU see corporate power, constitutionalisation of under European Union rule of law and 16–17, 21, 22–3, 365, 370 corruption 50, 51, 158, 265, 268, 271, 274, 275, 276, 368, 453, 455, 571, 669, 698 EU: Conditionality Regulation 626 merit 487, 490, 503 Corwin, E. 587 Costa Rica 221, 223 Costello, C. 119 Council of Europe (CoE) 133, 291, 533, 542, 544, 547, 706 Council of Ministers 546 Cover, R. 32, 124

Index  733 COVID-19 pandemic 163, 166, 171, 173, 228, 664 European Union 345, 405, 625 Japan 191–2 judicial governance 262, 263, 269 Mexico 228, 237 Cox, G. 225 Craig, P. 704 Crawford, J. 130 criminal law genocide denial 596 incitement to violence 82 national flag 82–3 Croly, H. 575 Crouch, C. 101 Cuba 181, 221, 223 cultural capital 488, 494 Curanović, A. 651 Curtis, G.L. 185 customary international law 418, 421–2 Cyprus 62, 492 Turkish Republic of Northern (TRNC) 128–9, 138, 141 Czech Republic or Czechia 269, 276, 397, 702 Dahl, R.A. 88, 203, 305, 583 Dallara, C. 267, 269, 275, 276 Dann, P. 5 Davenas, M. 421 Davies, G. 366, 489–90 Davignon, É. 356, 359 Davis, G.F. 362 Dawkins, R. 499 Dawson, M. 397, 404 Dawuni, J.J. 278 de facto states see unrecognised entities de Gaulle, C. 78, 89, 341–2, 354, 360 de Raeymaeker, O. 420–421 de Vattel, E. 107, 108, 120–121, 122, 123, 125 De Visser, M. 272 Debs, E. 575, 584 Decker, J. 37 Dekker, W. 356–9 Delcamp, A. 615 Della Porta, D. 640–641 Delors, J. 343, 359, 390, 392, 393, 402 Dembour, M.-B. 118–19 democracy 207, 208, 346, 410, 411, 638–9 citizenship 551, 564 European Union 398, 400–401, 404 and corporate power 365, 366–8, 370 identity, constitutional 616 Japan 177, 178, 179, 180, 193, 194 judicial dialogue 286

judicial governance 263, 269, 270, 271, 273, 275 judicial independence 253, 256, 257 Latin America 221, 223–4, 225, 226, 229, 239, 240, 241 meltdown, constitutional 707 democratic backsliding 696–9 illiberal democracy and 699–702 merit 484, 486, 487, 495–506, 507 hindrance to 503–6 meritorious political elite 500–503 unmeritocratic enterprise 496–500 militant 81–2, 596–7, 601–3, 607, 658–70 ‘counter-terror state’ and emergency powers 661–5 democratic backsliding and 668–70 identitarian democracy 665–8 stands for 660–661 transnational 453, 660–661, 670 parliamentary 98, 101, 344, 400–401 popular sovereignty, constitutional democracy and political representations see separate entry post-communist countries 628 pretext analysis 463 republicanism 316 rights, constitutional 432, 436 unrecognised entities 132, 133, 136, 137, 140 demonstrations, public law regulation of 83–4 Denmark 396, 477 deportation see liminal rights: sovereignty, constitutions and borders Derrida, J. 181 Deshmukh, P.S. 686 Devji, F. 676, 690–691, 692 Díaz, P. 231–2 Díaz-Cayeros, A. 234, 236, 237 Dicey, A.V. 563 Dimitrovs, A. 625 disability 35–6 discrimination/non-discrimination 31, 35, 37, 393, 395, 444, 457, 514, 627 citizenship 105, 554, 557, 560, 562, 564 merit 485, 486–8, 490, 491, 492 minorities: South Asia 520–521, 524, 526–7, 528 caste 522–3, 528 Nepal 520 pluralism 517 race 30–31, 34, 37–40, 324–6, 457, 556 religion 471, 472, 473, 475–6, 477, 480, 527 sex 31, 35, 476, 520–521, 527, 556 sexual orientation 473, 537, 541, 543 unrecognised entities 139 discursive institutionalism 40

734  Research handbook on the politics of constitutional law Dixon, R. 177, 303, 436, 680, 681 Dixon, T. 70 Dothan, S. 275 Dower, J.W. 185 Downs, A. 48–9 drafting see constitution making Dressel, B. 275, 276 Drinóczi, T. 623 Du Bois, W.E.B. 589 Duarte, M. 277 Dubai 552 Duda, A. 601 Dunoff, J.L. 275, 277 Durazo Hermann, J. 229, 231, 234, 238 Durkheim, É. 468 Dworkin, R. 79, 97, 204, 205, 453, 454 Eastman, C. 575 Eaton, K. 229 economic crisis (2008) 700 economies of scale 390 ECOWAS (Economic Community of West African States) 125 Ecuador 216, 221, 659 education merit and 483, 485, 489, 498, 499, 500 minorities 518, 519, 522–3, 524–6, 528, 529 cultural identity of 515 right to 439, 443 sexuality 650 through law: evil law 721–3 US: legal 586–7 Egypt 84, 435, 476 Ehrlich, E. 27, 74 Eichengreen, B. 403 Einstein, A. 553 Eisenberg, T. 277 Ekiert, G. 649–50 Elangovan, A. 684 Elkins, Z. 178, 438 Elster, J. 70, 77, 143, 147–9, 158, 434 Ely, J.H. 456 emergency powers 163–74, 191, 269, 460 9/11 attacks 171 acute attacks 170–172, 173 foundational constitutional disputes 169–70, 172, 173 functions of 164–5 militant constitutionalism 669 militant democracy 661, 664–5 models 165–6 ordinary legislation 166 paradox of prevention 171–2, 174 pre-empting use of 173–4 societal constitutionalism 168–9

time limits 164, 165, 171, 174 time-framing 171–2, 173 emotions 70–84, 593 biases 50, 51, 62, 63 building constitutional (public law) institutions 75–9 defining 71 emotion-reason relation 70–73 legal scholarship 73–5 public law regulating 79–83 public law regulation of demonstrations 83–4 empathy 71, 72, 73, 75, 79, 84 endowment effect 52, 55, 61–2 ‘enemy of the people’ 628, 725 Engel, D. 32–3, 35, 36 Engelking, B. 601 environment 358, 364, 366, 395, 405, 443, 649 climate change 161, 163, 172, 173, 364 Enyedi, Z. 701 Epp, C. 441 Epstein, E.M. 363 Epstein, L. 206, 258 equality 78, 122, 200, 290, 300, 303, 480 citizenship 492, 550, 551–3, 555, 557, 563, 564–5 gender 179, 190, 439, 490, 507, 641, 649 identity, constitutional 616 merit and 483, 485–95, 497, 507 antidiscrimination laws 486–8, 491 chimera 493–5 democracy 497, 501–2 social hierarchies 488–92 see also discrimination/non-discrimination; inequalities Erdoğan, R.T. 224, 263 Escobar-Lemmon, M. 277, 278 Esen, B. 263 Esposito, R. 91 Esquivel, G. 238 Estonia 402, 554, 555 Estrella, A. 400 ethnicity see race/ethnicity ethnography, constitutional 64 European Central Bank (ECB) 59–63, 392–3, 401–2, 616–17 European Convention on Human Rights (ECHR) 116, 133, 140, 534, 544, 639, 664 art 3: torture or inhuman or degrading treatment 117–18, 120, 126 art 6: fair trial 117, 459, 623 art 8: private and family life 118–19, 120, 126, 537, 561 art 9: religion 477 art 10: expression 540 art 12: marriage 537

Index  735 art 14: discrimination 537 art 18: restrictions to rights 459, 462 European Court of Human Rights (ECtHR) 36, 140, 207, 208, 264, 273, 274, 551, 618, 639, 706 citizenship 561 homophobic speech 540–541 immigration exceptionalism 106–8, 116–26 Islam and democracy 666–7 Islamic dress 665–6, 667–8 judicial dialogue 289–90, 291, 292 margin of appreciation 117, 119, 537, 540, 547 marriage 536–8 militant democracy 596–7, 660, 665–8, 669 pluralism 666 Polish Constitutional Court 623, 624 pretext analysis 454, 459–61, 462, 464 proportionality 118–19, 125, 540–541, 544 proselytism 477 sexual minority rights 533–5, 536–8, 540–541, 544, 545, 547 European Investment Bank (EIB) 404 European Roundtable of Industrialists (ERT) 356, 358, 359, 363 European Union 7, 133 administrative constitutionalism 329–30, 346 consolidating national-executive preeminence 341–4 incomplete contracting 333 nationally-mediated legitimation 344–6 New Deal model 330–334, 335, 345 Spaak Report 339–40 supranational autonomy and national-executive control 337–41 ‘technical’, ‘political’ and national-executive oversight 334–7 toward Treaty of Rome 337–41 Charter of Fundamental Rights 534, 616 citizenship 557, 562, 563, 564 and merit 484, 492 Commission 338, 339, 340–342, 343, 344, 345, 355–6, 368, 652, 701 anti-austerity direction 405 citizenship by investment 492 constitutional meltdown in Member State 705, 706 European Fund for Strategic Investments (EFSI) 404 European Stability Mechanism 401 Fiscal Compact 400 infringement procedures 545, 546, 705, 706

LGBTIQ Equality Strategy 543–4, 545–6 rule of law 705 White Paper: ‘Completing the Internal Market’ 356–60, 362 competences 395, 538, 543, 616 competition law 369 consumer protection 369, 395 corporate power, constitutionalisation of 350–371 accessions to EU 360 customs union 353 democracy 365, 366–8, 370 democratic legitimacy 366–8, 370 Dooge Report 358, 362, 366 Economic and Monetary Union 360 examples of empowerment 363–4 four freedoms 353, 355, 361, 368–9 implications of corporate involvement 362–8 institutional committees 364 internal market 351–71 lobbying 356, 359, 360, 363–4, 368, 369–70, 371 Luxembourg Compromise 353–5 negative integration 365–6 openness 365, 370 rule of law 365, 370 Single European Act (SEA) 351–2, 355–62, 366 social and environmental policy 358, 366 standard-setting 364 tethering or reshaping 368–70 Treaty of Lisbon (2007) 360 Treaty of Paris (1951) 352 Treaty of Rome (1957) 352–4, 359, 360, 366 Council of Ministers 338, 340–343, 344, 345, 543, 670 Fiscal Compact 400 internal market 356, 390 qualified-majority voting 341–2, 343, 354, 355, 390, 396, 544 Court of Justice of 118, 264, 273, 291, 292, 338, 339, 551, 707 amicus curiae 651–2 Conditionality Regulation 624–7 corporations 360–361, 363, 366, 367, 368–9, 370 court-packing cases 670 direct effect 361, 382–3 early years: Advocates General and 377–85

736  Research handbook on the politics of constitutional law economic freedoms and social rights 390–392, 394 enforceability conundrum 545–7 European Stability Mechanism 401 Fiscal Compact 400 homophobic speech 541 identity, constitutional 614–20, 622, 623–7, 629 infringement proceedings 705, 706 mutual recognition 390–391 preliminary rulings 361, 363, 616, 617, 705 pretext analysis 454, 459, 461–2, 463, 464 religious affiliation, signs of 472, 665–6, 667–8 sexual minority rights 533–5, 538–40, 541, 542–3, 547 social benefits 489–90 supremacy 361, 383, 542, 614, 615–17 Economic and Monetary Union 360, 389, 392–3, 394, 395, 402–3, 406 non-optimal currency union 59–63, 64 European Arrest Warrant 651–2, 705 European Coal and Steel Community (ECSC) 337–8, 339, 342, 352, 377 negotiations to set up 334–7, 378–9, 380–381, 383 European Council 343–5, 625 internal market 356, 358 unanimity 545 European Fund for Strategic Investments (EFSI) 404 European Stability Mechanism (ESM) 401, 404 Eurozone Crisis 344, 345, 393, 397–8, 401–2, 404–5 Fiscal Compact 397–402 free movement 125, 353, 355, 361, 368–9, 389, 391, 490, 539, 540, 543, 545–6, 547, 618 identity in Europe, constitutional see separate entry judicial dialogue 291, 292 judicial governance 262, 263, 264, 272, 273 judicial independence 246 Luxembourg Compromise 342, 353–5 meltdown in Member State, constitutional 695–6, 704–7 merit antidiscrimination law 487, 488 social hierarchies 489–90 militant democracy 597, 660–661, 665–6, 667–8, 670 negative integration 365–6, 392

neo-liberal bias 43, 386–407 divided EU left and European integration 394–7 embedded: liberalism to neoliberalism 389–93 limits to progressive politics 406–7 rescue of nation state 388–9 toward austerity union 397–402 toward post austerity union 402–6 Next Generation EU (NGEU) 387, 405, 407, 625 ordinary legislative procedure 344 Parliament 343, 344, 360, 366, 398, 557, 652, 707 pharmaceutical law 369 sexual identity in Europe see separate entry Single European Act (SEA) 351–2, 355–62, 366, 389, 390, 392 social policy 358, 366, 388–9, 390–392, 393, 394–7, 402, 406 Stability and Growth Pact (SGP) 393, 399, 400, 404 transparency 368, 369 Treaty of Amsterdam (1997) 395, 660 Treaty of Rome (1957) 352–4, 359, 360, 366, 388–9, 402 evil law 37, 710–726 advantages of legality 714–15 coercion 715–17 coordination 717–19 education 721–3 identity building 723–5 legitimation 719–21 disadvantages of legality law and ‘conformism’ 712–13 law and other evil goals 713–14 Simmonds’ opening 711–12 Ewick, P. 35 ex iniuria iuria non oritur 129–30, 140 expression, freedom of 81, 82, 180–181, 183, 219, 304, 439, 442, 457, 584, 601 homophobic speech v. 540–541 militant democracy 596, 602, 660, 661, 662–3 press freedom 614, 661, 698 Fabbrini, F. 614 Fagan, A. 267 fair trial 117, 459, 473, 623 Falk, R.A. 410 Falleti, T.G. 229, 232, 233, 234, 235, 236, 237, 240 Fallon, R.H. 453, 454, 455, 457, 458, 719 Farrell, R.C. 453, 454 Favell, A. 557

Index  737 federalism 250, 518, 526–7, 682, 683, 707 Latin America see federalism under Latin America United States 241–2, 310–312, 320, 323, 579 Feichtner, I. 616 feminist constitutionalism 641 Ferejohn, J. 247, 258 Ferrera, M. 397 Fidesz 697–8, 699 Fields, B. 30, 37 Finland 402, 477, 505 Finnis, J. 717–18 Fiorina, M.P. 257 fiscal decentralisation and autonomy: federalism in Latin America 235–7, 241–2 Fisher, R.A. 185 Fishkin, J. 485, 494, 504–5 Fisicaro, M. 626 Fitzmaurice, M. 417–18 Fleck, Z. 615, 622 Fleischer, D. 234 Foa, R. 707 Foley, E.B. 320 force, prohibition of use of 412, 413, 420, 425 and deformalisation of international law 412, 421–5 foreign direct investment 257 Foucault, M. 192 fragmentation 453 judicial dialogue 288 of power 250, 343, 346 framing 50–51, 56, 59, 61–2 emotions 75, 77, 79, 82, 84 France 94, 177, 552, 593, 665 antiterrorism measures 659, 661 Constitutional Council 203, 615 Declaration of the Rights of Man and Citizen 484 EFSI loans 404 emotions 72–3, 77–8 European integration 335–6, 338, 339, 341–3, 353–4, 359, 360, 361, 378–81, 388, 389, 390, 394, 395, 406, 615 human dignity 201 identity, constitutional 615 identity, political 574 Islamic dress 472, 474, 665, 667 judicial dialogue 290, 292 judicial governance 262, 271, 276 memory laws 596 merit 483, 484, 506 origins of state 469 secularism 468, 470, 472, 474, 480 UN Security Council 411 Francia, G. de 216

Franck, T. 424, 426 Frank, J. 74 Frankenberg, G. 2 Frick, W. 721 Frieden, J. 404 Friedman, B. 250 Friedrich, C. 587 Fukuyama, F. 612 Fuller, L.L. 292, 710, 711, 713, 715 functionalism 2, 329–30, 331–5, 337–8, 339, 340, 345 Furuya, T. 184 Gajda-Roszczynialska, K. 623 Galanter, M. 25 Gallagher, H.L. 72 Galston, W. 699–700 Gandhi, I. 684 Gandhi, M.K. 677 Gannon, K.M. 317 Ganty, S. 557 Gardbaum, S. 301, 453, 459 Garoupa, N. 207, 262, 269, 279 Garsten, B. 102 Gauck, J. 182, 183 Gaviria, C. 43 Gee, G. 262, 263 Gelter, M. 290 gender 642, 651, 653 diversity: judicial governance 275, 277–8 equality 179, 190, 439, 490, 507, 641, 649 see also sexual identity in Europe general principles of law 418 genocide denial, criminalisation of 596 Georgia 138, 271, 423, 425 Germany 101, 152–3, 177, 179, 206, 290, 293, 552 Basic Law 74, 182, 602, 603, 621, 660 emotions 73, 74, 80, 83 desecration of the flag 82–3 European integration 360, 378, 383, 388, 389, 390, 392, 394, 395, 397–8, 401, 402, 404–5, 406 Federal Constitutional Court 208–9, 253, 274, 290, 603–4, 615–17, 621, 624 idealism 1 identity, constitutional 615–17, 621, 624 ultra vires control 616, 617 judicial governance 269–70, 271, 272–3, 274, 607 judicial independence 251–2 mnemonic constitutionalism 594, 596, 601–4 Nazi 81, 82, 153, 453, 573, 695 citizenship 554, 555

738  Research handbook on the politics of constitutional law evil law 711, 713–14, 716, 718, 720–721, 722, 723–5, 726 legal doctrines 73 rights, constitutional 436 Weimar Republic 74, 82, 660, 716 Gervasoni, C. 236, 237, 238, 239, 240 Getty, J.A. 721 Gewirtzman, D. 77 Geyh, C.G. 199, 210, 263 Ghazaryan, N. 136 Gibson, E. 230, 233, 236, 237, 239–40 Giesen, B. 613 Gildenhuys, L. 454, 464 Gillingham, J. 330–331 Ginsburg, T. 10, 98, 181, 224, 249, 255, 256, 267, 437, 438, 658, 659, 660, 661, 665, 668, 697 Giscard d’Estaing, V. 343 Glendon, M.A. 445 Gliszczyńska-Grabias, A. 39 Global Conservative Right 637, 643, 645, 650, 651, 652 Global North 288, 290, 293 Global South 288, 293, 307, 515, 517, 563, 577 globalisation 43, 56, 182, 542, 638, 667 Glungler, W. 724 Goelzhauser, G. 262 Góes, C. 238 Goldar, M.G. 277 Goldie, L.F.E. 418 Goldsmith, J. 438–9 good neighbourliness 411–12, 413, 417–21, 423, 424–5, 426 Göring, H. 718 Gowder, P. 21–2 Graber, M. 34, 257, 586–7, 588 Grabowski, J. 601 Greece 62, 63, 256, 401, 402, 406, 477, 499 Green Cowles, M. 355 Greene, J. 444–5 Greenhouse, C.J. 32, 33 Groot, D.A.J.G. de 617 Gross, J.T. 600 Gross, O. 165–6, 167 Grossman, N. 277 Grotius, H. 120 Grove, T.L. 274 Guarnieri, C. 271, 275 Guatemala 223 Gulf Cooperation Council 563 Gürtner, F. 721 Gutiérrez-Cuéllar, P. 240 Gutmann, J. 278 Gyllenhammar, P. 356 Gyofry, T. 206

Haas, E.B. 337 Habermas, J. 631 Haider, J. 660 Haidt, J. 79, 81 Hailbronner, M. 206 Haiti 223, 702–3 Halberstam, D. 505 Halmai, G. 620–621, 629 Hamilton, A. 70, 222, 252, 310 Hammarskjöld, D. 426 Hammergren, L.A. 262, 273 Hand, L. 169, 173 Hanley, S. 701 Harpaz, Y. 559 Harrington, C. 32, 33 Harris, T.S. 187 Hartung, F. 252 Hartz, L. 586 Harwa, I. 277 Harzl, B. 6 Hasebe, Y. 190 hate 82 hate speech 72, 82, 184, 189, 199, 293, 659, 660, 662, 664 Havelková, B. 278 Hayek, F.A. 254, 386, 387, 493 Hayo, B. 248, 249, 278 healthcare, right to 439, 443 Hegel, G.W.F. 470 Helfer, L.R. 459 Heller, N. 483 Helmke, G. 257, 273, 275 Henmi, Y. 176 Hernández Rodríguez, R. 240 Herold, M. 647 Herszenhorn, D.M. 625 heuristics 50, 52, 53, 56, 59, 63, 64, 149 Higuchi, Y. 190, 193 Hilbink, L. 42–3 Hindu Zion: constitutional accommodation 674–92 discursive construction communal citizenship 687–9 Constituent Assembly debates 685–7 of Indian and Hindu Rashtra 685–9 idea of Hindu Zion 689–91 notwithstanding clause 675, 676, 678, 681 Partition 676 Bangladesh, Foreigners Act and CAA 679–80 and Constituent Assembly debates 677–8 originalism 680–685 Hirohito, Emperor 178 Hirschl, R. 255, 257, 290, 434–5

Index  739 Hirschman, A.O. 70 historical memory: Cold War and US constitutional law 571–89 breaking Cold War bind 588–9 comparative perspective 574–6 legal professionals and who owns Constitution 585–8 McCarthy, majority tyranny and counter-majoritarianism 576–81 Supreme Court, Cold War reverence for 581–4 historical memory and collective identity see mnemonic constitutionalism Hitler, A. 718, 720–721 Hitz, Z. 722 Hix, S. 398–9 Hoar, G.F. 578 Hobbes, T. 493 Hoexter, C. 453 Hofmann, H.C.H. 624 Hofstadter, R. 581, 586 Hogg, P.W. 299, 300, 302, 303, 305 Holmes, O.W. 54 Holmes, S. 97, 98, 441, 662 Holocaust 596–9, 600–601 Holy Roman Empire 251–2 Homer 70 Hong Kong 163, 169, 172, 290 Hoover, J.E. 584 Höpner, M. 386 Horowitz, D. 144, 161 House, J. 27 housing, right to 443 Howe, P. 707 Hudson, A. 153, 158–9, 160 human dignity 200–201, 203, 205, 551, 596, 616 human rights 182, 204, 240, 395, 410, 422–3, 445, 514, 636, 639–40 advocacy groups 441 assembly, freedom of 83, 84, 660, 661, 698 association, freedom of 118, 602, 660, 663–4, 666–7, 669–70 citizenship 550–551, 553–8, 559, 563, 564–5 constitution making 151, 158 corporate power 364 ECHR see European Convention on Human Rights (ECHR) ECtHR see European Court of Human Rights (ECtHR) education, right to 439, 443 emergency powers 165 expression, freedom of 81, 82, 180–181, 183, 219, 304, 439, 442, 457, 584, 601 homophobic speech v. 540–541

militant democracy 596, 602, 660, 661, 662–3 press freedom 614, 661, 698 fair trial 117, 459, 473, 623 healthcare, right to 439, 443 IACtHR 240, 264, 273, 289–90, 639 ICCPR 117, 299, 515–16 ICESCR 136 identity in Europe, constitutional 613, 616 immigration exceptionalism see liminal rights: sovereignty, constitutions and borders inhuman or degrading treatment, prohibition of 80 torture or 117–18, 120, 126, 439, 442 Islamic dress 659, 665 Japan 177, 194 judicial dialogue 286, 289–90, 291, 292, 293, 295, 299, 305 LGBT+ rights see separate entry life, liberty and security 112–13, 114–16 non-discrimination see discrimination/ non-discrimination Poland 535, 546, 617, 645, 649, 651 private and family life 118–19, 120, 126 religion see freedom of under religion rights, constitutional 432, 437 unrecognised entities 131, 135–6, 137, 140 Human Rights Committee (HRC) 516, 639 humanitarian intervention 421, 422, 425–6 Hume, D. 71, 73 Hungary 133, 246, 264, 271, 273, 276, 404, 659, 726 constitutional conflict and populism 642 identity, constitutional 613–14, 617–18, 625, 627, 628 case law 620–623, 624 meltdown, constitutional 695, 701, 702, 703, 704, 706–7 democratic backsliding 696, 697–8 merit and democracy 499, 500 militant democracy 661, 669, 670 mnemonic constitutionalism 592, 607 pretext analysis 459–60 sexual minority rights 535, 546, 617–18 Hunt, A. 30 Huq, A.Z. 454, 458 Iacoboni, M. 84 Iceland 148, 159, 160, 274, 434, 477, 505 identity building and evil law 723–5 identity in Europe, constitutional 606, 611–29 conclusions counterclaim to counterclaim 629 use in hybrid regimes 627–8

740  Research handbook on the politics of constitutional law constitutional identity case-law 614–24 abuse 614–15, 620–624 CJEU: Conditionality Regulation 624–7 misuse 614, 617–20 signal limits of primacy of EU law 614, 615–17 meaning 611 codes of identity 613–14 constructing identity 611–13 Poland 649 ideology, politics of legal 30–44 comparative contexts 40–43 competing ideologies: race 37–40 law and ideology 31–4 law and society 32–4 legalism 31–2, 43 role of language 32 rights consciousness 34–7, 43 Ignatius, D. 187 immigration 484, 489, 517, 612–13, 620, 622, 628, 667, 701–2 exceptionalism see liminal rights: sovereignty, constitutions and borders India 679–80, 689 India 41, 206, 207, 263, 269, 272, 304 merit 483, 498, 504 antidiscrimination law 487 minorities 477, 480, 514, 518 affirmative action 522–3, 525–6, 527, 528 identifying 518–20, 522, 524 rights granted to 519, 524–5 Scheduled Castes 522–3, 528 public interest litigation 675, 679 religion 477, 479–80, 519, 522 Hindu Zion: constitutional accommodation see separate entry Indigenous peoples 443, 518, 558 religion and land 474 individualism 35, 183, 188, 194, 699 methodological 48–9 Indonesia 479 inequalities 56, 130, 173, 180, 224 citizenship 105–6, 492, 550, 551–3, 555, 557, 563, 564–5 income inequality in Europe 363 US: wealth and 505 Japan’s electoral law 181 Latin America: federalism 237–8 merit 485–6, 488, 491, 492, 493, 494, 501–2, 504, 505 postcolonial constitutions 682

see also discrimination/non-discrimination; equality Ingram, M. 31, 41–2 Inter-American Court of Human Rights (IACtHR) 240, 264, 273, 289–90, 639 interest group theory 53 international constitutionalism 410–427 good neighbourliness 411–12, 413, 417–21, 423, 424–5, 426 prohibition of use of force 412, 413, 420, 425 and deformalisation of international law 412, 421–5 and sovereign equality of states 411–12, 413–17, 425 International Court of Justice (ICJ) good neighbourliness 418, 419 Statute: art 38(1)(c) 418 International Covenant on Civil and Political Rights (ICCPR) 117, 299, 515–16 International Covenant on Economic, Social and Cultural Rights (ICESCR) 136 International Monetary Fund (IMF) 238, 273, 401, 437 interpretation 199–211 human dignity 200–201, 203, 205 motivations and arguments 199–203 balancing exercise 201–2 concepts and conceptions 200–201 explanation and justification 202–3 methodologies and criteria 202 perception of political and appointment of judges 209–10 political context 206–9 political theories and approaches 203–6 clear-mistake doctrine 205, 206 consensualism 205 originalism 205, 206, 297 textualism 205 purposive 200 IQ test 489 Iran 181 Iraq 152, 186, 424, 426, 475, 505 Ireland 62, 262, 290, 398, 652 Israel 150, 263, 269, 274–5, 435, 676, 689–91, 692 Issacharoff, S. 99, 275, 455, 463, 464, 668 Istanbul Convention 650 Italy 63, 262, 271, 272, 276, 290, 499, 538, 704, 721 EFSI loans 404 emotions 83 media 659 Iyer, S. 278 Izard, C.E. 70

Index  741 Jakab, A. 263, 275, 705 Japan 152, 206, 290, 390, 438 amendment politics 176–95 abusive constitutionalism 177, 188, 190–191, 192, 194 art 9 as statecraft and constitutional faith 181–2 collective self-defence 186, 192 comparative observations for further studies 193 ‘double standard’ 180–181 dynamism of 182–8 free speech 180–181, 183 rigged pandemic responses 191–2 Science Council of Japan 191 setback or new normal 188–93 stability and ambiguity 178–82 Jaraczewski, J. 623, 624 Jasper, A. 278 Jay, S. 254 Jefferson, T. 312, 317, 319, 321, 484, 499, 502, 504 Jenks, C.W. 418 Jinnah, M.A. 521, 691 Joerges, C. 8 Johnson, B. 502 Jordana, J. 270 Jospin, L. 395 Jowell, J. 204 judiciary 92, 637 accountability 210, 247–8, 265, 267, 268, 583 activism 206, 286, 394, 532 behavioural concepts 54–5 political campaign finance in US 57–9, 64 constitution making 148 dialogue 275, 276, 286–307, 614, 617 citation practices 296 domestic or inter-branch 297–306, 307 future of scholarship on 306–7 prestige-trafficking 294–5 transnational 286–97, 306–7 domestic or inter-branch judicial dialogue 297–306, 307 Canada 299–301 effects on courts 304 effects on legislatures 304–5 political viability and sustainability 305–6 what counts as 302–4 education and training 267 emergency powers 163, 165, 167, 170, 173 emotions 74, 80, 84 evil law 712, 716, 722, 723

exclusion and expulsion of non-citizens see liminal rights: sovereignty, constitutions and borders governance 262–79 actors of 268–70 channels of politicisation 270–272 gender diversity 275, 277–8 informality 274–6 and its dimensions 265–8 standardisation, judicialisation and internationalisation 272–4 Hungary 133 ideology, politics of legal 30, 31, 32, 34, 38–40, 41–3 impartiality 247, 251, 277 independence 41, 210, 264, 265, 266, 268, 269, 273, 620, 629, 636, 659 de jure and de facto 248–50, 253 defining concepts 246–50 external support 251–4 informality 274, 275, 276 meltdown, constitutional 697, 698, 704–5, 706, 707 militant constitutionalism 669 militant democracy 659, 670 Mt. Scopus International Standards (2008) 272 pretext analysis 453, 459, 460, 461–2, 463, 464 rise and protection of 246–59 theories 250–257 value for rulers 254–7 India 675 interpretation see separate entry Japan 180–181, 185–6, 187, 190–191, 193, 206 Latin America 223, 225, 246, 262, 271 Argentina 233, 234 Brazil 233–4 Mexico 233, 234 militant democracy 659, 670 Poland 133 pretext analysis see separate entry removal of 461 self-governance 247–8, 262, 263, 264, 265–72, 274, 278 transnational judicial dialogue 286–97, 306–7 judicial use of foreign law 295–7 ‘measuring’ 289–90 reasons for 290–295 types and characteristics 287–8 see also individual courts justice 122, 131, 137, 140 anger 80, 81

742  Research handbook on the politics of constitutional law distributive 78 merit 484, 485, 495, 507 social 136 telephone 265, 271, 275 Juviler, P. 91 Kaczyński, J. 273, 698, 701 Kades, C. 178 Kadlec, O. 270, 273, 279 Kahn, P. 91 Kalem, S. 278 Kaltwasser, C.R. 659 Kantorowicz, E.H. 470 Kapoor, J.R. 687 Karlsson, C. 706 Karlsson, H.L. 273, 274 Katayama, M. 180 Katō, S. 176, 177, 182, 193 Kavanagh, A. 200, 204 Kawczyńska, M. 623 Kay, J.B. 79 Kelemen, D. 707 Keller, T. 628 Kelsen, H. 102, 177, 417, 661 Kennedy, J.F. 505 Kenney, S.J. 277 Kent, M. 453, 454, 456 Kenya 262, 574–5, 690 Khaitan, T. 7, 159, 263, 269, 279, 683–4 Khosla, M. 684 King, J.A. 201 Kinowska-Mazaraki, Z. 623 Kischel, U. 274 Kishi, N. 187 Kishida, F. 192 Kleinlein, T. 410 Knox, J. 39 Kochenov, D. 8, 9, 88, 264, 273, 552, 624, 625, 705 Kohl, H. 390, 395 Koizumi, J. 187 Koncewicz, T.T. 623 Koposov, N. 10, 605 Korean War 176 Kosař, D. 7, 248, 262, 264, 265, 266, 267, 268, 269, 272, 273, 275, 276, 278, 279 Koseki, S. 178, 179, 185 Koskenniemi, M. 424 Kosovo 422 Kovler, A. 141 Kowalewska, E. 645 Kraditor, A.S. 79 Kramer, M.H. 710, 713, 715–16, 717, 719, 726 Krastev, I. 700, 701 Krause, S.R. 71

Krekó, P. 698 Krüger, R. 455 Krygier, M. 5 Krzaklewski, M. 647, 648 Ku Klux Klan 40 Kühn, Z. 271 Kyrgyzstan 200 La Boétie, É. de 193 Lagrange, M. 377, 378, 379–83, 384–5 Lahire, B. 612 Lambert, F. 238 Landau, D. 208, 629 Landau, J. 455–6, 457, 458 Landemore, H. 496, 505, 506 Landis, J. 331, 334 Langdell, C.C. 586 Langston, J. 240 language(s) Abkhazia 138, 139 deferral of choice of national 681 ICCPR: minorities (art 27) 515–16 judicial dialogue 290 popular sovereignty 101 social benefits 489 South Asia: minorities 517, 518, 519, 520, 521, 523–4, 526, 527, 528 Lasch, C. 506 Lasser, M. 391 Latin America 41–2, 215–26, 563 checks and balances 220–221, 224, 225 conservatism and liberalism (1810–1850) 216–17 constitution making 150, 215, 216–20, 221, 222, 224, 225, 226, 230, 286 democratic erosion 224 federalism 228–42 administrative decentralisation 234–5 asymmetries 237–8 basic institutions 231–4 comparison with US 241–2 fiscal decentralisation and autonomy 235–7 legislation and amendments 240–241 origins 229–31 politics 238–40 hyper-presidentialism 215, 220–221, 224 reactive legislatures and 225–6 judicial dialogue 286, 291 judicial governance 262, 271, 273, 275 judicial independence 246 liberal-conservative fusion (1850–1890) 217–18 MERCOSUR 125 merit and democracy 500

Index  743 proportionality review 444 social authoritarianism 222–3 social constitutionalism 221–2 strong presidents, weak congresses and democratic instability 223–4 see also individual countries Latvia 200, 539, 554, 555 Lauth, H.J. 275 Law, D.S. 206 law and psychology 64 law and society 31, 32–4, 35–6 Lawrence, B. 168 Lawrence, S. 277 Le Bon, G. 77, 83 Ledeneva, A. 271, 275 Lee, H.P. 265 legal ideology see ideology, politics of legal legal positivism 42, 377, 384 legal realism 63, 74, 391 legalism 31–2, 43 Legrand, P. 2 Leibovitch, A. 445 Lekhi, M. 687–8 Leloup, M. 265, 273, 460 Lenaerts, K. 629 Lerner, H. 519, 680–681, 684 Lerner, M.J. 84 Lester, E. 121 Levi-Faur, D. 267 Levinson, S. 176, 640 Levitsky, S. 702–3, 704 LGBT+ rights 84, 436, 532–5, 547, 701 Europe: role of politics 542 enforceability conundrum 545–7 vertical balance of powers and political games 542–4 homophobic speech v. freedom of expression 540–541 Hungary 535, 546, 617–18 marriage 535–40, 542, 651 non-discrimination 473, 537, 541, 543 Poland 535, 546, 617, 651 Libya 424, 426 Lima, D. 618 liminal rights: sovereignty, constitutions and borders 105–26 different pathways, same destination 119–20 de Vattel 107, 120–122 right and power 122–4 immigration exceptionalism 106–8 Canadian Supreme Court 106–8, 112–16, 118, 119–26 ECtHR 106–8, 116–26 US Supreme Court 106–12, 118, 119–26 Limongi, F. 239

Lincoln, A. 89, 90 Linde, H. 455–6 Lipset, S.M. 576–7, 581 Liscow, Z.D. 506 Little, D. 75 Llanos, M. 271 Llewellyn, K. 586–7 Locke, J. 88, 95, 96, 101 Lodge, H.C. 575 Loewenstein, K. 74, 82, 602, 660, 661, 662, 666 López Obrador, A.M. 228, 238, 240 Lösener, B. 714 loss aversion 52, 55, 59, 61 Loughlin, M. 92 Lovell, G. 35, 36 Lucy, W. 23 Lukina, A. 37, 453 Lurie, G. 263, 266, 267, 269, 270, 275 Luxembourg 402 McArthur, General 438 McCann, M. 31, 35, 36, 441 McCarthy, J. 573, 576–9, 580, 581, 584, 589 McCrudden, C. 200–201 McDougall, W. 499 Macedo, S. 504 McElwain, K.M. 176 Machiavelli, N. 314 McKean, T. 321–2 Mackie, D.M. 75 Macklem, P. 517, 666 McNamara, K. 393 Macron, E. 403 Madagascar 271, 702–3 Madison, J. 54, 70, 220, 248, 310–311, 312, 314, 318, 439, 470, 576, 579 Maduro, M.P. 617 Magalhaes, P.C. 255, 256 Mahtab, B. 688 Mainwaring, S. 99 majoritarian tyranny 91 McCarthy, majority tyranny and counter-majoritarianism 576–81 Mak, E. 277 Malaysia 171, 172, 206, 262, 477, 478–9 Mali 702–3 Malleson, K. 265, 277, 278 Malta 492 Mancini, S. 665–6, 667 Manfredi, C.P. 302, 305 Manin, B. 501 Mansbridge, J. 103 Manstead, A.S.R. 75 Marcondes, D. 267 Markell, P. 73, 74

744  Research handbook on the politics of constitutional law Maroney, T.A. 70, 74 marriage 535–40, 542, 651 Marsh, N.S. 6 Marshall, T.H. 555–6 Masengu, T. 278 Mathen, C. 272 Matheson, C. 719–20 Mathieu, E. 266, 270 Matsui, S. 206 Mattei, U. 572 Maximilian I 252 Mayer, F. 616 Mayhew, D. 257 Mazurczak, A. 617 Mazzuca, S. 229, 230, 238 meltdown, constitutional 695–707 competitive authoritarianism 702 origins and development 702–3 persistence and form 703 stability and durability 704 illiberal democracy mimesis and economics 700 origins and meaning 699–700 populism and culture 701–2 proximate political strategy 695, 696–9 second-order political impact judicial independence 704–5 regional: responsibility and capacity 705–7 rule of law 704–5 Melton, J. 247, 248, 250, 253, 274, 438 memory historical memory: Cold War and US constitutional law see separate entry mnemonic constitutionalism see separate entry Mendez, M.F. 79 Menéndez, A.J. 399, 400 merit 317, 483–507, 557 democracy 484, 486, 487, 495–506, 507 hindrance to 503–6 meritorious political elite 500–503 unmeritocratic enterprise 496–500 equality 483, 485–95, 497, 507 antidiscrimination laws 486–8, 491, 492 chimera 493–5 ‘revolving doors’ 490 social hierarchies 488–92 judicial selection 262, 273, 276, 277, 278 Merkel, A. 62, 397, 403 methodology 1–5 Metzger, G.E. 329 Mexico 41, 42, 216, 217, 218, 219, 221, 702 federalism 228, 229, 230, 231–3, 234–6, 237, 238, 240, 241, 242

judicial governance 276 judicial independence 253 Suprema Corte de Justicia 253, 271 Meyer, F.C. 616 Mickonytė, A. 31 migration see immigration Mikuli, P. 270, 271 Mikuriya, T. 189, 190 Milanović, B. 492, 553 militant constitutionalism 669 militant democracy see militant under democracy Mill, J.S. 78, 499 Milward, A.S. 337, 386, 389 minorities 82, 180, 422–3, 443, 597 affirmative action 522–3, 525–6, 529 merit 491 South Asia: protection or 526–8 citizenship 555, 558 evil law 713, 717, 726 international law: rights of 515–17 militant democracy 666, 667 religious 474, 475–6, 477–80, 517, 519, 520–3, 526, 527 signs of religious affiliation 472 rights, constitutional 432, 439 sexual see LGBT+ rights South Asia 514–29, 683 identifying minorities 515–17, 518–21, 524 languages 517, 518, 519, 520, 521, 523–4, 526, 527, 528 pluralism in 517–18 preserving minority rights 524–6 protection or affirmative action 526–8 religious diversity 477–80, 517, 519, 520–523, 526, 527 way forward 528–9 unrecognised entities 137 miscegenation laws 37–40 Mishima, K. 189 Mitrany, D. 330, 331–4, 345 Mitterand, F. 342, 359, 390 mnemonic constitutionalism 39, 592–4 definition of memory laws 595 Germany 594, 596, 601–4, 607 memory of past as legal determinant 595–8 Poland 592, 593, 594, 597–601, 607 Russia 594, 595, 604–6, 607, 608 self-exculpatory 595, 598 self-inculpatory 595, 596, 603 victimhood competition 597 weaving story 606–8 Modi, N. 263, 269, 674, 677, 679, 684 Mody, A. 402–3

Index  745 Monnet, J. 330–331, 332, 334–5, 345, 380–381, 382, 384 Monroe, J. 310 Montesquieu 1, 73, 78, 318, 602 Montevideo Convention on Rights and Duties of States 130 Moons, W.G. 76 Moore, S.F. 23, 24, 25 moral sentiment theory 71 Moraru, M. 273 Moravcsik, A. 358–9, 389, 390 Morawiecki, M. 623 Moreno, G. 216 Morgenstern, S. 225–6 Morijn, J. 7 Morris, A. 84 Moscovici, S. 83 Motomura, H. 111 Moustafa, T. 257, 435 Mubarak, H. 435 Mudde, C. 701 Mueller, J. 497, 500, 501–2 Mugabe, R. 271 Müller, J.-W. 10, 74, 88, 668–9, 670, 701 Müllerson, R. 426–7 multiculturalism 517, 612, 628, 701 Muñoz, A. 236, 237 Murayama, T. 181 Myanmar 170, 475, 678 myopia, political 53, 55, 56, 59, 61, 62, 63 Nacif, B. 240 Nafziger, J.A.R. 120 Nagorno-Karabakh Republic (NKR) 128–9, 130, 131, 133–4, 136, 137, 138, 140, 141 Nagy, P. 83 Nail, T. 105 Nair, N. 677 Nakakita, K. 177, 193 Nakano, K. 184, 188 Nakasone, Y. 187 Narjes, K.-H. 358, 366 nationalism 62, 78, 82, 100, 125, 402, 406, 492, 597, 701 citizenship 553 India 479–80, 674, 675, 676, 677, 678, 680, 681–4, 685, 687, 689, 691, 692 Japan 177, 179, 182, 185, 187, 194 Malaysia 478 people as political community 91 Poland 647, 648, 649, 650 religion as justificatory tool of 690 NATO (North Atlantic Treaty Organization) 422 natural law 643–4, 651, 652 necessity 120, 121, 422, 426, 456, 491, 540

Negretto, G. 231 Nehru, J. 677, 681 Nehru, M. 677 Nelson, C. 453, 457, 463 neofunctionalism 329, 337–8, 342, 345, 393 neoliberalism 43, 63, 182, 187, 194, 228, 360, 363, 435 EU constitutional order: bias towards 43, 386–407 merit 492 and antidiscrimination law 488 Nepal 518–19, 520, 524 nepotism 275, 486, 487, 488, 499 Netanjahu, B. 263, 269 Netherlands 262, 335–6, 381, 404–5, 489, 536, 667 network analysis 42 new constitutionalism 43, 684 new public management 277 New Zealand 98, 120, 121, 301, 435 Nietzsche, F. 553 Nikolić, M. 72 Nitta, I. 194 Nixon, L.A. 323–4 Nixon, R. 185 Noguchi, Y. 180 non-discrimination see discrimination/ non-discrimination Nordic countries 205, 206, 563 see also individual countries Nordic Social Democrats 396 Normile, D. 191 North, D.C. 254, 257, 275 North Korea 186 Korean War 176 North Macedonia 702–3 Northern Ireland 172 Norway 477 Novkov, J. 39–40 Nueva Granada 217 Nunes, R. 43 Nussbaum, M.C. 70, 80, 494 Oatley, K. 72 Obama, B. 89, 186–7 O’Brien, C. 8, 490 O’Donnell, G. 224 OECD (Organization for Economic Co-operation and Development) 345, 486 Oguma, E. 182 Oklopčić, Z. 6 Okudaira, Y. 181, 190–191 Olcay, T. 263 Olmeda, J.C. 240 Olsen, T.V. 670

746  Research handbook on the politics of constitutional law Olson, M. 49 opportunity costs 47 pluralism 494 Orbán, V. 89, 207, 224, 273, 276, 592, 607, 615, 620, 701 organised crime 229, 233, 240, 242 Ōtake, H. 179 Owaisi, A. 689–90 Oxtoby, C. 262 Ozawa, I. 187 Özbudun, E. 263 Pakistan 517, 518, 519, 521, 522, 523, 674, 676, 677, 686–7 definition of non-Muslim 521, 523 language 523, 524, 526 national assembly: minority groups 527–8 refuge for international religious community 689–91, 692 Panksepp, J. 71 Paraguay 216, 218 Parau, C.E. 262, 267, 269, 270, 272, 275, 276 Pargament, K.I. 81 Pascoe, P. 37–9, 40 Patel, K.K. 388 paternalism 63 Paterson, A. 207 pay equity movement 31, 35 Pech, L. 461, 624, 626, 627 Peluso Neder Meyer, E. 228 Peresie, J.L. 277 Permanent Court of International Justice (PCIJ) 515, 518–19, 525 Perón, J. 222 Persilly, N. 707 Peru 217, 218, 223 Peters, A. 410, 424 Petersen, N. 289 Petrażycki, L. 73–4 Petrov, J. 273 Pfersmann, O. 660 Philip, G. 240 Philip Morris 361 Philippines 704 Pickering, T. 317–18 Pierson, P. 275, 276 Plato 70, 83, 313, 484, 498–9, 602, 660, 721 Plender, R. 556 pluralism, methodological 3 pluralism, stylistic 3 Pojman, L. 485 Poland 133, 246, 264, 271, 272, 273, 726 constitutional conflict and populism 642 EFSI loans 404

identity, constitutional 613–14, 617, 625, 627, 628 case law 623–4 meltdown, constitutional 695, 701, 702, 703, 704, 706–7 democratic backsliding 696, 698 merit and democracy 500 militant democracy 603, 661, 670 mnemonic constitutionalism 592, 593, 594, 597–601, 607 populist constitutionalism 636–7, 642, 644–53 backlash movement: Ordo Iuris 650–652 Conservative Revolution 648–50 Constitution, struggle over 645–8 pretext analysis 454, 459, 460, 461–2 sexual minority rights 535, 546, 617, 651 Polanyi, K. 393 political campaign finance in US 56–9, 64, 505 political parties 634, 660, 662, 663–4, 699 Hungary: Fidesz Party 697, 698, 699 India: Bharatiya Janata Party (BJP) 674, 677, 679–80, 682, 683, 684, 685, 688, 692 militant democracy 602 Poland: Law and Justice Party (PiS) 648–50, 651, 652, 698, 701 pretext analysis 460, 463 right to form 442 United States 310–327, 584, 585, 589 political sociology of constitutions 641 Pollack, M.A. 390 Popova, M. 272, 275 Popravka, L. 615, 620 popular constitutionalism 41, 640 popular sovereignty, constitutional democracy and political representations 88–103 Americanised democracy 101–3 community and society 91–2 constitutional form and constituent powers 89, 93–5 core and periphery 92, 93 limits of sovereignty 89–90, 95–7 the people beyond definitions 88–90 as political community 89, 90–92 popular governments (beyond the people) 90, 97–9 structure of frame 89, 92–3 terminology and phraseology 90, 99–101 populism 43, 93, 97–8, 99, 101, 346 behavioural concepts 55–6, 62 civil society fundamentalism and 634–53 constitutional conflict 642–4 frontlash and backlash movements 636 Poland 636–7, 642, 644–53

Index  747 sociological approach 637–42 core and periphery 93 emotions 70 Europe 403, 406, 534, 597, 604, 699 Hungary 207–8, 613, 642, 699, 701, 726 Poland 598, 600, 636–7, 642, 644–53, 701, 726 pretext analysis 459 identity in Europe, constitutional 612, 613–14 illiberal democracy, culture and 701–2 India 684, 685 judicial governance 263 merit and democracy 497–8, 499, 502, 506 militant constitutionalism 669 militant democracy and democratic backsliding 658–70 people as political community 91–2 United States 577–9, 580, 581, 582, 584, 586, 589, 636, 637 Porto, A. 235, 236, 237, 238 Portugal 62, 229, 256, 262, 401, 402, 594 Posner, E. 445 Pou, F. 231, 241 Pound, R. 586–7 poverty 483, 484, 489, 490, 491–2, 557 Pozas-Loyo, A. 262, 269, 271, 272, 275, 276, 277 Pozen, D.E. 453, 454, 457–8 Prasad, R. 685 precarity 56, 138 presidentialism 668 Brazil: coalition 239 Latin America: hyper- 215, 220–1, 224 reactive legislatures and 225–6 United States 571, 668 Prest, W. 254 pretext analysis 453–64 absence in constitutional law 454–6 constitutional norm against bad faith 463–4 in domestic courts: SCOTUS 454, 456, 457–9, 464 in European regional courts CJEU 454, 459, 461–2, 463, 464 ECtHR 454, 459–61, 462, 464 Přibáň, J. 8 Prinz, J. 71, 75, 76 private power and rule of law 14–28, 365, 370 orthodoxies 14–17 responses outside the law 23–7 tempering power 18–21, 28 threats beyond the state 21–3 property law/rights 17, 36, 37, 435, 441, 443 proportionality 113, 118–19, 125, 422, 426, 444–5, 459, 473, 540–1, 544, 617 Przybylski, W. 698, 701

public choice theory 47–9, 53–5, 60, 63, 64 public health 37 Putin, V. 555, 604, 605, 606, 608 Qatar 475 race/ethnicity 242, 323–6, 457, 458, 519, 520, 585, 589, 667 anti-Semitism 596 citizenship 555 citizenship 106, 550, 551, 554, 555, 556, 558, 559, 560, 564 emergency powers 170 emotions 79, 82 evil law 713–14, 722, 724–5 ideology, politics of legal 30–31, 34, 37–40, 41 immigration law 106, 108, 111, 112, 121 merit 507 and racism 485, 489, 492 status structures and hierarchy 487, 489, 491 quotas 523, 527 Rackley, E. 277 Ramnath, K. 678 Ramseyer, J.M. 249, 255 Rancière, J. 179 Randazzo, K.A. 256, 276 Randolph, E. 315 rational ignorance 48–9, 52, 53, 55, 56, 59, 62 rational-choice theory/tradition 3, 333 Rawls, J. 493, 666 Raz, J. 715, 726 reason-emotion relation 70–73 Redish, M.H. 76 referenda constitution making 148, 159–60, 178, 575, 648, 650 Hungary 620 Ireland 398 Japan 188, 192, 193, 194 Russia 605 secession 170 sham 592 unrecognised entities 132 refugees 112–13, 115–16, 117–18, 120, 125, 612–13, 622, 679–80, 702 Refugee Convention 109, 113, 117 regional constitutionalism 3, 235 regulatory capture 49, 54 religion 37, 79, 80, 81, 82, 84, 716, 717 anti-blasphemy legislation 479 conservative-populism 642–4 constitution making 151, 179

748  Research handbook on the politics of constitutional law dress 471, 472, 473–4, 476, 477, 478, 659, 665–6, 667–8 establishment 467 varieties of 475–7 forum internum and forum externum 467, 472, 480 freedom of 442, 443–4, 457, 473, 474, 476, 477, 478, 480, 520–521, 659, 665–6, 667–8 harmony 467, 469, 477–80 ICCPR: minorities (art 27) 515–16 immigration law 110, 112 Japan 183–4, 187 justice and merit 484 as justificatory tool of nationalism 690 Latin America 216, 219, 223 militant democracy 659, 665–8 Poland 645, 647, 648, 649, 650, 651 secularism 467–8, 479, 480, 665, 701 varieties and their shortcomings 469–75 sexual minorities 535 South Asia: minorities 477–80, 517, 519, 520–523, 526, 527 see also Hindu Zion: constitutional accommodation rent-seeking 49–50, 53, 54, 56, 59 Repeta, L. 183, 192 reproductive rights 115, 199, 206, 242, 436, 443–4, 457, 635, 641, 642, 645, 650, 651, 653 Resnik, J. 277 Retinger, J. 352 Reuter, P. 335 Richter, J.P. 185 Riemer 88 Riggs, F.W. 99 right to protect/humanitarian intervention 421, 422, 425–6 rights consciousness: legal ideology 34–7, 43 rights, constitutional 432–47 rights adoption 433, 434–8 rights creep 433, 443–7 more is less 445–7 proportionality 444–5 rights enforcement 433, 438–43 advocacy groups 441 individual rights 442–3 organisational rights 442–3 paradox of limited power 441 political costs 441–2 self-enforcing 440–441 Riker, W.H. 228, 230 Rios-Figueroa, J. 250 risk aversion 52, 61, 95, 435, 667 Roach Anleu, S. 74

Robertson, D. 201, 203 Robinson, E.S. 74 Rockefeller, D. 352 Rodden, J.A. 235, 236, 237, 238 Rodríguez Pueblita, J.C. 237, 238 Roemer, K. 377–8, 383–5 Roma community 490, 669, 724 Romania 264, 404, 545, 617, 619–20, 698, 702–3 Rome, Ancient 725 Roosevelt, F.D. 180, 246, 329, 330, 332, 334, 345, 578 Rosamond, B. 387 Rosenberg, G. 36 Rosenfeld, M. 611 Rosenn, K.S. 229, 230 Rosenwein, B.H. 70 Ross, G. 388, 390, 392, 396 Rossignolo, D. 238 Rothmans 361 Rousseau, J.-J. 88, 506 Roux, T. 453 Roy, S. 10 Roznai, Y. 91 rule of law 47, 89, 410, 608, 635–6, 643 corporate power 16–17, 21, 22–3, 365, 370 devaluation of 680 emergency powers 164, 167, 171 European Union 133, 264, 365, 651–2, 670 identity, constitutional 611, 613, 616, 625, 626, 627–8, 629 meltdown, constitutional 704–7 federalism in Latin America 238, 242 Japan 188 judicial governance 273–4, 275 legal ideology 32, 34, 41, 42, 43 merit 483 migration 107, 123, 124, 125 militant democracy 602, 660, 662, 670 pretext analysis 453, 460 and private power 14–28, 365, 370 rights enforcement 440 Saudi Arabia 476 unrecognised entities 140 see also evil law rule of law and private power 14–28, 365, 370 orthodoxies 14–17 analogies and extensions 16–17 contracts 17 legal anatomical approach 15 property law 17 responses outside the law 23–7 social causality 23–5 tempering power 18–21, 28 arbitrary exercise of significant power 19

Index  749 threats beyond the state 21–3 Rupnik, J. 701 Russia 101, 133, 134–5, 140, 141, 411, 422–3, 424–5, 426, 702–3, 726 citizenship 555, 563 mnemonic constitutionalism 594, 595, 604–6, 607, 608 sexual minority rights 535, 537 Ruys, J.F. 71 Rykens, P. 352 Sadat, A. 435 Sadurski, W. 273, 623, 698 Said, E. 667 Saiegh, S. 239 Sajó, A. 6, 70, 75, 77, 97, 195, 453, 458, 593, 629, 658, 667, 669 Sallusti, A. 271 Salvini, M. 704 Salzberger, E. 257 Samuels, D. 228, 229, 231, 238, 239, 241 Samuels, R.J. 176 Sandel, M. 505, 506 Sanford, G. 645 Sanger, C. 74 Santer, J. 360 Sartori, G. 102–3 Sata, R. 701 satisficers 52–3, 61, 62 Saudi Arabia 475, 476 Savarkar, V.D. 677 Savigny, F.C. von 73 Schachter, O. 426 Scharpf, F.W. 365–6, 386, 390–391, 392, 401–2, 405, 407 Scheingold, S. 34–5, 36 Scheppele, K.L. 4, 64, 177, 453, 625, 626, 629, 697, 698, 699 Schinkel, W. 557 Schlesinger, Jr., A. 579 Schmid, H.B. 72 Schmidt, H. 343 Schmidt, V.A. 40, 367, 403–4 Schmitt, C. 88, 94, 180–181, 346, 469–70, 666, 667, 724, 725 Schotel, B. 125 Schultz, U. 277, 278 Schuman, R. 336, 384 Schumpeter, J.A. 499 secessionist entities see unrecognised entities secularism 467–8, 479, 480, 665, 701 varieties and their shortcomings 469–75 Seinfeld, G. 457 Selejan-Gutan, B. 620

self-determination 129, 132, 133, 136, 551, 555, 564, 642 Selznick, P. 16–17, 21 Sen, A. 494 Seneca 70 Senegal 271 Sengupta, A. 272 separation of powers 27–8, 55, 136, 137, 167, 177, 225, 250, 270, 331, 398, 411 pretext analysis 453–4 Sethy, P. 526 sex discrimination 31, 35, 476, 520–521, 527, 556 sexual citizenship 556 sexual identity in Europe 532–47, 617–18 case studies 535 homophobic speech v. freedom of expression 540–541 marriage 535–40, 542, 651 role of politics 542 enforceability conundrum 545–7 vertical balance of powers and political games 542–4 sexual orientation discrimination 473, 537, 541, 543 Shah, A. 674 Shaller, M. 181, 185 shame 80 Shani, O. 685 Shapiro, M. 251, 254 Sharpston, E. 377 Shaw, K. 454 Shetreet, S. 254 Shils, E. 579 Shimazono, S. 179, 184 Shinoda, M. 183 Shirai, S. 186 Shklar, J. 31–2, 34 Sidhwa, R.K. 686 Siegel, R.B. 80, 486, 490 Sieyès, A. 88, 94 Simmonds, N.E. 710, 711–14, 715, 725–6 Simmons, B.A. 441 Simon, H. 52 Singapore 171, 173, 290, 295, 296–7, 477 merit 483, 498, 503, 504 Šipulová, K. 265, 270, 273, 278 Sirota, L. 274 Sitton, J.F. 497 Slaughter, A.-M. 295 slavery 76, 79, 318, 484, 487, 554, 559, 585, 598 Śledzińska-Simon, A. 163, 271, 272, 273 Slovakia 271, 698, 702 Slovenia 276, 554, 698 Smend, R. 74 Smith, A. 72, 73

750  Research handbook on the politics of constitutional law Smith, E.R. 72 Smith, R. 574 Smith, S.A. 186 Soares, M.M. 234, 235, 236, 237–8 social media 23, 184, 189 social movement(s) 436, 506, 635, 636, 638, 640–641, 700 theory 83–4 social-welfare/social security system 161, 443, 483, 489–90, 515, 529 workfare 489 societal constitutionalism 168–9 sociological approach 637–42 sociology of constitutions 64, 641 Soeya, Y. 192 Sofos, S. 275 Sofsky, W. 725 Sohr, O. 238 Solano López, F. 216 Solomon, P.H. 257 Solvay, J. 358 Sólyom, L. 698 Somek, A. 488 Songer, D.R. 277 Sonnevold, N. 277 Sonoda, K. 184 South Africa 41, 121, 146, 149, 206, 435, 702 citizenship 555 emergency powers 170 judicial governance 262 merit and antidiscrimination law 487 pretext analysis 454–5 South Korea 171, 184, 186, 187, 256, 593 judicial dialogue 287, 290 Korean War 176 South Ossetia 128–9, 130, 132, 133, 134–5, 136, 138–9, 140–141, 425 South Sudan 437, 438 Souza, C. 229, 230, 231, 232, 233, 235, 236, 239 sovereign equality of states 411–12, 413–17, 425 sovereignty 331, 333, 400, 401–2, 403, 410, 643 liminal rights: sovereignty, constitutions and borders see separate entry meltdown, constitutional 701 mimesis 700 popular 179, 312 popular sovereignty, constitutional democracy and political representations see separate entry unrecognised entities 131, 133, 135, 136, 138 Soviet Union 74, 153, 157, 181, 453, 572–3, 580 evil law 711, 713, 714, 716–17, 718–19, 720, 721, 722–3, 724, 725, 726 former 132–3, 286, 701, 702 Spaak, P.-H. 339–40

Spáč, S. 264, 271, 272, 275, 276, 278 Spain 43, 256, 262, 271, 272, 276, 290, 402 EFSI loans 404 political parties 663–4 Spiro, P.J. 109 Sri Lanka 475, 477, 478, 479, 678, 680 minorities 518, 521, 523–4, 526 proportional representation 527 Stalin, J. 711, 713, 714, 717, 718–19, 720, 721, 723, 724, 725, 726 statelessness 552–3, 556 Staton, J. 248, 253, 258 Stearns, P.N. 70, 80 Stepan, A. 230, 239, 241 Stephenson, M.C. 249, 255, 256, 257 Stephenson, S. 274 Stępkowski, A. 651 stereotyping, self- 76 Sternberger, D. 74 Stevens, R. 254 Stohler, S. 41 Stone, H.F. 581–2 Stouffer, S. 577–8, 581 Stråth, B. 91 Strauss, P.L. 345 Strayer, J. 469 Streeck, W. 393, 401 Suárez Cao, J. 236 Suga, Y. 191–2 Suk, J.C. 436 Sunstein, C. 669 Surowiec, P. 698 Sutter, D. 252, 253 Sweden 396 Sweet, A.S. 201 Swidler, A. 611 Switzerland 290, 401, 497, 564 Szanto, T. 72, 73 Szente, Z. 615, 620, 622 Szobar, P. 722 Szwed, M. 623 Taiwan 171, 173, 256, 290, 702 Takeshita, N. 181 Tamanaha, B. 628 Tan, F. 459 Tanaka, K. 185 Tănăsescu, E.-S. 619 Tangney, J.P. 71, 80 Tate, C.N. 277 Tawney, R.H. 494 taxation 235–7, 241, 252, 258, 363, 403 Taylor, C. 194 Taylor, G. 274 Taylor, M. 263, 271

Index  751 Teles, S. 37 Temple, K. 74 Terayama, S. 183 territorial integrity 129 territory and citizenship 562–4 terrorism 170, 171, 172, 173, 659, 661–4 Teubner, G. 92 Tew, Y. 206 Thailand 163, 475 Tharoor, S. 689 Thatcher, M. 390 Thayer, J.B. 205 Thiel, M. 602 Thiele, A. 624 Thompson, E.P. 83 Thornberry, P. 516 Thucydides 427 Tietjen, R.R. 81 Tilly, C. 89, 90 Tocqueville, A. de 35 Todd, R.M. 71 Tokarczuk, O. 597–8, 606 Tomoeda, T. 184 Tøraasen, M. 277, 278 Torres Pérez, A. 271, 272, 276 torture 115, 116, 117–18, 120, 126, 439, 442, 551 trade unions 57, 223, 436, 441, 442, 646 tragedy of the commons 54 Traister, R. 81 transformative constitutionalism 206 Transnistria 128–9, 130, 134 transparency 210, 265, 267, 277, 368, 369, 398 constitution making 158 Truman, H.S. 584 Trump, D. 224, 458, 495, 571, 589, 704 Tryfonidou, A. 618 Tsampi, A. 453, 459 Tsereteli, N. 271, 276 Tuck, R. 97 Tulis, J. 160 Tullock, G. 48 Tully, J. 31, 554, 556 Tunisia 262, 436, 476 Tuovinen, J. 455 Turkel, G. 32 Turkey 263, 271, 454, 459, 462, 468, 474–5, 665, 704 religion 468, 474–5, 665–7 Turkish Republic of Northern Cyprus (TRNC) 128–9, 138, 141 Tushnet, M. 7, 23, 168, 179, 202, 247, 250, 257, 279, 301, 437, 453, 464, 605 Tversky, A. 50 Udagama, D. 526

Uganda 271 Uitz, R. 270, 271, 273, 276, 454 Ukraine 51, 133, 140, 141, 423, 424, 426, 604–6, 608, 702–3 uncivil society 642 see also backlash movements Unger, M.R. 78 Unilever 352, 360 United Arab Emirates (UAE) 555 United Kingdom 98, 105, 120, 157, 177, 301, 484 anti-terrorism laws 662 Brexit 495, 555 colonialism 76, 152, 290, 438, 518 declaration of incompatibility 207 emergency powers 172 emotions 76, 83 European integration 360, 389, 390, 393, 395, 396, 397 1950s 335–6 corporate actors 363 Human Rights Act 1998 204 judicial appointments 210, 262 judicial independence 254, 257 Magna Carta 439 merit 483 antidiscrimination law 487 democracy 499, 502, 503 UN Security Council 411 United Nations 128, 129, 425–7 Charter 410–411, 412, 414, 415, 416, 419–20, 421, 425–6 Preamble 417, 419 art 51: self-defence 421–5, 426 art 74: good neighbourliness 417, 419 General Assembly 410–411 Declaration on Friendly Relations 414, 419, 420 Minorities Declaration 516 High Commissioner for Refugees 552 judicial governance 272 Security Council 410–411, 412, 413, 415–16, 421, 422, 426–7 Special Rapporteurs 272, 516 United States 97, 102–3, 168, 193, 230, 353, 390, 424, 426 9/11 attacks 171 administrative constitutionalism 329, 346 New Deal 330–334, 345 American Civil Liberties Union 443 behavioural concepts 54 political campaign finance 56–9, 64 Capitol: events of 6 Jan 2021 169 citizenship 555, 563 competitive authoritarianism 704

752  Research handbook on the politics of constitutional law Constitution 46, 50, 54, 55, 99, 180, 304, 311, 434, 435, 439, 505 First Amendment 57–8, 83, 219, 312, 326, 471, 668 Fifth Amendment 110 Twelfth Amendment 312, 318–22, 323, 326, 327 Thirteenth Amendment 76 Fourteenth Amendment 34, 37, 76, 324, 575 Fifteenth Amendment 324, 326 Eighteenth Amendment 436 Nineteenth Amendment 436 association, freedom of 118 departmentalism 298 emotions 70, 76, 77, 78, 80, 82, 84 flag burning 82 historical memory see historical memory: Cold War and US constitutional law immigration 108, 109–11, 118 making of 144, 145, 146, 155, 160, 310 rights as ‘trumps’ 444 Declaration of Independence 76, 95, 318 emergency powers 163, 169, 171 emotions 70, 74, 75, 76, 77, 78, 79, 80, 82, 84 European Recovery Plan 352 federalism 241–2, 310–312, 320, 323, 579 ideology, politics of legal 30–31, 34, 42 Americans with Disabilities Act 35–6 law and society 31, 32–3, 35–6 race 30–31, 34, 37–40, 41 rights consciousness 34–6 interpretation 206, 209, 297 Japan 176, 177, 179–80, 181, 184–7, 192, 193 judicial dialogue 288, 295, 297, 298, 304, 305 judicial governance 262, 263, 271, 273, 275–6 legal realism 74 merit 317, 483, 484, 487 antidiscrimination law 487 democracy 499, 500, 501, 502–3, 504–5, 506 social hierarchies 489, 491 militant democracy 667, 668 National Rifle Association 443 political campaign finance 56–9, 64, 505 political parties 310–327, 584, 585, 589 guarantee clause, republican government and state political systems 313–17 majority rule 317–23

as state actors in republican theory 323–7 populism 577–9, 580, 581, 582, 584, 586, 589, 636, 637 President: mandate to speak for nation 98–9 race 79, 242, 323–6, 457, 458, 585, 589, 667 ideology 30–31, 34, 37–40, 41 immigration law 108, 111, 112 merit 485, 487, 489, 491 refugees 109 religion 468, 470–472, 474, 480 discrimination 471, 472, 473 secularism 468, 470–472, 473, 474, 480 Supreme Court 206, 256, 290, 297, 304, 305, 324–6, 332 immigration exceptionalism 106–12, 118, 119–26 merit 491 political parties 312–13, 584 pretext analysis 454, 456, 457–9, 464 religious dress 471 reverence for see historical memory: Cold War and US constitutional law US citizens of Japanese origin 584, 667 trade unions 441 UN Security Council 411 voting rights 707 war on terrorism 663 Universal Declaration of Human Rights (UDHR) 135–6, 437, 515 unrecognised entities 128–41 ethnocratic governance 132, 137–8, 139, 140 general observations 131–7 individual and 137–9 Urbinati, N. 97 Uruguay 217, 218, 223 Vachudova, M.A. 701 Valdini, M.E. 277 Valero, J. 625 value pluralism 46 van Apeldoorn, B. 393 Vanberg, G. 41, 248, 249, 250, 252, 253, 258 Vande Zande, D.L. 254 VanDusky-Allen, J. 228 Vargas, G. 222, 230 Várnay, E. 615, 622 Varol, O.O. 158, 263, 278 Vasek, M. 263, 269 Vasilyev, P. 74 Vauchez, A. 263, 271, 275, 276 Venezuela 148, 217, 223, 263, 271, 659, 704 Venice Commission 15, 133, 140, 210, 272, 706 pretext analysis 454, 461, 462

Index  753 Verba, S. 577 Verdross, A. 417 Verhoest, K. 266, 269 Versteeg, M. 207 Vidmar, J. 422 Viereck, P. 582 Vietnam 171, 173, 176, 181, 505 Vincze, A. 616, 617, 621 Vitoria, F. de 120 Volcansek, M. 262 Volden, C. 228 von Bogdandy, A. 705 von Pufendorf, S. 120 von Scheve, C. 72 voting rights 40, 436, 497, 707 Vyshinsky, A. 724 Waldron, J. 146, 293 Walker, C. 662 Walzer, M. 91, 558 Wang, J. 271, 276 Warren, E. 585 Warren, M. 92 Weber, F. 614 Weber, M. 70, 182, 719, 720 Wechsler, H. 585, 587, 588 Weiler, J.H.H. 8, 10, 263, 668 Weingast, B. 252 Weinshall, K. 277 Weinshall-Margel, K. 277 welfare state see social-welfare/social security system Wesley, 76 White, B.T. 273 Whittington, K. 249, 250, 255, 256, 257 Wiesenthal, S. 601 Wilkinson, M.A. 8 Williams, M.S. 277 Williams, R. 91 Wilson, J. 315–16 Wilson, P.H. 252 Wittreck, F. 267, 270, 271 Wolff, C. 120

women 79, 81, 189, 190, 484, 689 Argentina 232 backlashes 641 Brazil 232 citizenship 556, 558 constitution making 157 discrimination 31, 35, 476, 520–521, 527 dress 471, 472, 473–4, 476, 477, 478, 659, 665–6, 667–8 judicial governance 277–8 merit 490 Mexico 232 Pakistan 527 Poland 649 reproductive rights 242 right to vote 436, 497 rights, constitutional 436, 443 violence against 289–90, 293 Istanbul Convention 650 Woodward, J. 35 Wooldridge, A. 488, 495, 499, 500 World Bank 246, 273, 437 Wright, R. 320 Wysocka-Bar, A. 617 Xi Jinping 498 Yamamoto, H. 188 Yeh, J. 193 Yokodaido, S. 177 Yoshida, S. 178, 181 Yoshino, K. 458 Young, A.L. 204 Young, C. 179 Young, M. 485 Zakaria, F. 699 Zgut, E. 274, 275, 276 Zheng, C. 277 Ziller, J. 354 Zimbabwe 271