FROM CONSTITUTION TO CONSTITUTIONALISM: A FRAMEWORK FOR ANALYSIS OF NATIONALIST AND TRANSNATIONAL CONSTITUTIONALISM.
I have described the variety of ways in which institutional religion serves as a critical political actor within constitutional systems. (Backer 2008). But is this evidence of a place for religion (like other sub national communities—factions) within constitutions, or does it suggest the emergence of something new—a theocratic constitutionalism—or a religiously based tyranny? In order to determine the character of these systems, and the means for determining whether they may be judged legitimate or illegitimate, it is useful to examine the conventional system of constitutional taxonomy (and the judgments it fosters). The inquiry embraces the irony in taxonomy—both classification and application of the normative structure on which classificatory choice is made. For the application of this insight to the important issue of democracy and judicial review as a component of constitutionalism, conventionally understood. As Miguel Schor explained: “Maps, after all, are used to conceptualize the world. Similarly, scholars believe that order can be brought to the profusion of laws that populate the world by classifying and organizing them into families. Taxonomies, it is thought, facilitate the task of transferring laws between nations. The problem with taxonomic approaches to comparative law, however, is that they obscure the tension between representing reality and orienting the user that maps ineluctably present.” Schor 2008, at 257-58).
In an earlier examination I posited that from out of traditional constitutionalism—essentially a theoretics of higher law grounded in the power of uniquely constituted and inwardly looking political communities—there has developed since the mid 20th century supra-national normative systems. (Backer 2008). It is against those systems that constitutions are internally legitimated, and on which communities of nations can rely on to legitimate, in turn, their actions against non-legitimate governments under principles of international law. The “legitimation effect can be defined as the process through which systematic losers come to understand themselves as part of the system, as self-governing, and as having willed their losses and their subordinate status.” (Lobel 2007, 958; Hart 1994, 110-110; Bernstein 2005). “In the discourse on international relations, we routinely differentiate between various categories of states and label them according to certain criteria that we consider relevant for our understanding of the dynamics of international politics. Sometimes these criteria are purely factual, but mostly they have an evaluative, even moralizing, overtone.” (Preuß 2006). Likewise, these normative yard sticks provide a means of determining the legitimacy of rebellion against the state apparatus by a sovereign population. (Gatmaytan 2006). For example, it has become a contemporary commonplace to argue that
“Constitutions, in contrast, are premised on the acceptance of state power as legitimate. If significant strife exists on the ground or the government is not accepted by the people, then the constitution may become a "façade constitution." A façade constitution can declare aspirational principles and adopt power structures for government, but such provisions and principles are ineffective and potentially delegitimized because they are not followed in practice. . . . Insurgency, by definition, undermines a shared constitutionalism. Rory Stewart perhaps puts it best: "It did not matter what human rights were enshrined in documents if your local sheikh, party leader, or policeman could still beat you up on the street corner."” (Note: Counterinsurgency 2008, 1632; citing Sartori 1962, 861; Feldman 2005, 872; Schor 2006; Stewart 2007, 339)Constitutions, thus, might be distinguished from constitutionalism (Nino 1996; Loewenstein 1957, 147-153)—the latter serving as a means of evaluating the form, substance and legitimacy of the former. These notions become clearer beyond the self-contained discussions within Western academic circles. (Chen 2007). Chen notes that “Constitutionalism as a theory and practice of government and law is a product of modern Western civilisation. Like science, it has proved to have universal appeal to humanity and has in the last two centuries been transplanted to all corners of the earth.” (Chen 2007, at 650).
For all that, it is still a commonplace to suggest that constitutions and constitutionalism are equivalent terms, or that constitutionalism refers to the study of constitutions in all its forms, or to the science of legitimate constitution making or to the set of values that can be called constitutional and not merely government. (Fombad 2007 (with good citations to the literature). As a consequence, it is worth spending a little time exploring the meaning of constitutionalism, a term whose meaning is as elusive as the unitary system of constitutional legitimacy it means to underlie. (Nino 1996). That is the subject of this essay. The exploration will suggest a way to synthesize or at least approach a working model of constitutionalism in the popular scholarly mind. It will also suggest a working definition of constitutionalism.
The essay starts with a critical examination of the main currents of constitutionalism. Its object is to attempt to extract an understanding of the concept of constitutionalism from the current legitimating discourse. The focus is on the production of meaning within the field. For that purpose academic discourse, though fictive, serves an essential role in the production of an authenticity of meaning and a legitimacy in a specific meaning of and belief in the structure of law. That constitutionalist discourse, in turn, tends to evidence the dynamic character of the concept. Conceptions of conventional constitutionalism are said to be grounded either in domestic law and the unique will of a territorially defined demos, or in a system of universal norms grounded in an elaboration of the mores of the community of nations. From out of this discourse, Section II suggests a working description of constitutionalism in general and transnational constitutionalism in particular. That definition looks to the characteristics of constitutionalism as a system of taxonomy and legitimation grounded in a set or normative assumptions about the meaning and purpose of states that produce an ideology of substantive and process limitations state power.
Specifically, the essay unpacks what are identified as the five core elements of constitutionalism as it has come to be developed over the course of this century: Constitutionalism is: (1) a system of classification, (2) the core object of which is to define the characteristics of constitutions (those documents organizing political power within an institutional apparatus), (3) to be used to determine the legitimacy of the constitutional system as conceived or as implemented, (4) based on rule of law as the fundamental postulate of government (that government be established and operated in a way that limits the ability of individuals to use government power for personal welfare maximizing ends), and (5) grounded on a metric of substantive values derived from a source beyond the control of any individual.
From this definition it is possible to begin to theorize the emerging variants of values based constitutionalism that have arisen since 1945. Traditional nationalist constitutionalism situates the source of its values in the transcendent genius of the people of the nation itself. Transnational constitutionalism situates those legitimating substantive values in their expression by consensus of the community of nations. Natural law constitutionalism is grounded in universal values based on humanity’s nature or aspirations. Theocratic constitutionalism grounds those values in the imperatives of a privileged religious system. Lastly, ideological or scientific constitutionalism situates such values in ideological systems—from free market to Marxist. The focus of this essay is on nationalist and transnational constitutionalism, but the insights are applicable to the others as well. Thus understood, constitutionalism becomes the framework through which the constitution of states can be evaluated, legitimated and affected. Constitutionalism suggests both a systematization of the parameters for conceiving constitutions and for responding to particular manifestations of constitutional expression. Most import, perhaps, it suggests that constitutionalism has become another means of competition between communities of believers for control of legitimating discourse. The language may be constitutions, yet the object is control.
From that definition of constitutionalism, thus understood, the analysis will move to the theocratic. I have suggested that just at the moment of its development as a single system grounded in the customary values of the community of nations, a rival system of constitutionalism has emerged, grounded in the normative systems of universalist religion. (Backer 2008). Like constitutionalism, itself, theocracy is a moving target. (Rabb 2008). Nevertheless, it will be possible to suggest a working understanding of the concept of theocratic constitutionalism. This working definition is developed in another posting. See (Backer July 23, 2008).
Robin West once usefully sketched out the parameters within which much constitutionalist discourse is situated:
We might, in fact, think of various theories of constitutionalism along a continuum, defined by this "particularist-to-universalist" axis. At one end are views of constitutionalism that see the role of the constitution as delineating a national identity, by in effect highlighting and sharpening distinctive events, features, and moments of the nation's shared history. At the other end are views of constitutionalism that see the role of the constitution as imposing constraints, in the name of universalist conceptions of humanity, on just that sort of national distinctiveness: the purpose of the constitution, in other words, as understood at this end of the spectrum, is to require of the state obligations derived not from the country's history, but from the human status of the state's citizens. (West 2003, 770).
Indeed, West suggests, “either pole of this axis, as well as any number of mid-way points along it, are plausible enough accounts of the way the idea of constitutionalism has been bandied about in theory and used in practice, at least in the United States.” (West 2003, 771).
Many discussions of constitutionalism seek to situate their discussion somewhere along this continuum and in the service of a particular purpose. All constitutionalism is justificatory—justifying a particular perspective or objective in the normative construction of the rules for understanding the character of systems of governance. “Constitutionalism is a political theory concerned with the architectural structure and basic values of society and of government. It aims to make the world comprehensible and, to some degree, controllable. Historically, it is preoccupied with the problem of power, particularly the power of those who would rule others, especially when that rule might be arbitrary.” (Brandon 2003, 655). Brandon suggests a working definition: “a theory of the institutions and values of a type of political "enterprise" in which "(1) people, or 'a people,' (2) self-consciously attempt (3) to conceive the design for a new political world, (4) to embody that design in some sort of text, and (5) to implement it in the world." (Id., n. 132, citing in part, Brandon 1998, 10).
Most seek to explain and to provide a basis for manipulating the current reality: a system of political states unequal in power, whose governments are constituted by a written instrument that seeks to delineate the limitations of the state’s powers, now operating within an increasingly bureaucratic and autonomous network of supra-national and international institutions more and more empowered to assert legitimately constituted legislative and executive power.
For many influential scholars, constitutionalism can be most usefully approached from the narrowing confines of the field of international law. (Friedman 1978; MacDonald et al., (eds) 2005). For them, it might be said, constitutionalism represents the (necessary) subordination of domestic law within the superior binding power of law originating form a self-constituted global community. (Peters 2005, 536). Some advocates look to the construction of a global constitution, that is, of the constitution of an autonomous global community from which rules are developed to constrain domestic constitution making. The focus is on the construction of that community. (Preuß 2008). That construction might focus on systems of positive norm-making as well. For that purpose an autonomous institution, superior to any nation-state, might be required. International constitutionalism involves the development of an institutionalized organization of the community of nations—superior to and autonomous of its members.
As regards the "verticalization" of international law, the surfacing of a hierarchical legal relation between the sphere of individual states and the realm of the interests and values of the global community as a whole--the criterion that I suggest as the defining feature of international constitutionalism--both erga omnes norms and jus cogens presuppose and refer to a sphere of common matters of mankind which have a higher normative rank than rules regulating interstate relations. (Preuß 2008, 39).Verticalization requires a source of law, and a ceding of power up from the state. “Obviously the former rules include the principles laid down in the UN Charter, such as prohibition of the use of force (except the case of self-defense), respect for the political independence and territorial integrity of any state, and, most importantly, the protection of human rights as laid down in several international compacts.” (Preuß 2008, 39). Still, the real issues here are tied to the implementation of the apparatus of this government and the scope of its powers—sometimes under the rubric of a trans-governmentalism of one sort or another. (Slaughter 1997, 183-186). Among the greatest of those powers are those that mimic domestic federal structure—for example through the development of jus cogens principles. As memorialized by the international political community, this is defined broadly: “For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. (Vienna Convention 1969, art. 53). These would be accorded an authoritativeness as lawmaking superior to that of the black letter or principles of domestic constitutions, in the way that federal law is superior to the law of the states (and even the constitutional law of states) comprising the union. (Tomuschat 1993, 195).
Yet, such institutionalist systems can be customary in nature—based on the evolving constitutional traditions of the member states of the community. The European Union provides a model—a federalist system grounded in international law, constitutionalized through the acts of its own institutions acquiesced by the Member States. (Backer 2001). “Institutional design, even in the most venerable and venerated constitutional settlements, must always be viewed as a derivative and contingent exercise, always at the service of the core values and the changing detail of material and cultural conditions and of diversely located solutions which influence the articulation and optimal balance of these core values.” (Walker 2003, 54). In this context the internationalization effectively represents a blending and generalization of the consensus positions of appropriate or basic norms drawn from the evolving constitutional traditions of the member states of the supra national system. “The universalistic content of basic rights is not restricted by the ethical permeation of the legal order; it thoroughly permeates nationally specific contexts.” (Habermas 1996, 1498). These generalized norms are then used as a yardstick against which the actions of the member states themselves are measured—by the organs authorized for that purpose at the supra-national level. (Backer 1998, 1369-1382). “Within the constitutional context, the doctrines of autonomy and supremacy provide the framework for the possibility of establishing norms at the Community level, while the development of general principles of Community law provides the substance of such norms.” (Backer 1998, 1343 ). In the case of the European Union, of course, that is tied up in the legitimation of the European Court of Justice as a sort of supra constitutional court. (Backer 2004).
Both approaches to supra-national or international constitutionalism may not be focused directly on domestic constitutions themselves, except as a consequential or incidental matter. The context or uniqueness of a particular constitutional experience is to some extent unprivileged. The important element is the development of the framework within which these contextualized expressions of higher domestic law can be judged, and corrected. This is constitutionalism with another goal—the construction of a global governance order. (Sultan 2004, 162). Since the late 1940s, the focus of this institution creation has been on the United Nations system and the construction of a variety of supra national human rights organizations. These institutions arte meant to produce norms that reflect the constitutional and justice traditions of its members—that reflect their highest and best aspirations—and formalize those traditions as international law binding not only on states but superior to the constitutional traditions of any of them. A sense of the way this is supposed to work can be evidenced in the long saga of the battle between the Texas Court of Appeals, the United States Supreme Court and the International Court of Justice with respect to the application of provisions of the Vienna Convention (1963) in a way incompatible with the traditional American constitutional limits. (Case Concerning Avena 2004; Medellín v. Dretke 2005; Ex parte Medellín 2006; Medellín v. Texas 2008).
For that purpose a certain verticality is necessary; a constitutionalization of international law is required. (Habermas 2006: Weiler et al. eds 2003). But the full consequences of this verticality suggests a certain subordination of national for supra-national order; all bounded by a singular set of norms. Thomas Cottier, for example, suggests as a basic orientation of global governance a need for constitutionalization grounded in "an attitude and a framework capable of reasonably balancing and weighing different, equally legitimate and democratically defined basic values and policy goals of a polity dedicated to promote liberty and welfare in a broad sense." (Cottier 2000, 221).
The place of the constitutions of the Member States of the European Union within that system provides an advanced regionalist model of the form. “The dominant international and, especially, European constitutional tradition contemplates "a constitutional order embodying universal principles that derive their authority from sources outside national democratic processes and that constrain national self-government."” (Anderson 2005; Rubinfeld 2003; Scheinnin 2001). The American federal system provides another. (Backer 2009). But the focus is on a philosophical pragmatism rather than an singular ideal state. As Roscoe Pound famously noted: “Today we should be employing philosophical method in jurisprudence to set off and criticize the ideal element in systems of developed law.” (Pound 1929, 32-65).
Even at the international level, focusing on the United Nations architecture, for example, there is a sense that a principal element of this constitutionalism is focused on international institutionalization (Coglianese 2000)—state building of one sort or another, whether as a customary or positive legal system or a variant thereof. (Backer 2008, 34-37). As one proponent put it, paraphrasing George Washington, “membership in a community means being bound.” (Preuß 2008, 45; Tansill, ed 1927, 1003). In its postmodern iteration, the other shoe drops—the idea that constitutionalism ought no longer to be tied to the nation-state suggests that constitution and nation state are no longer necessarily synonymous. (Carrozza 2007). A similar approach has evolved within the constitutionalist discourses of regional human rights courts, especially in the context of the evolution of the principle of margins of appreciation in enforcing the norms of the supra-national human rights conventions. (Backer 2000, 346-61). In either iteration, it is the modernist notion of the uniqueness of the ethnos, uniqueness legitimately expressible within a constitution, which is undermined.
In its non-institutional form, a variant of internationalist constitutionalism is grounded in that strain of comparative law that focused on universalism and convergence, that “one should always conduct the inquiry with an eye to convergence.” (Teitel 2004). The underlying principle embraces the idea that “[c]omparison is at the center of all serious inquiry and learning.” (Rosenfeld et al eds, 2003). It is sometimes couched in the language of cosmopolitanism, arguing for example, that the institution of the United Nations systems has produced an age of global civil society in which norms of universal social justice originating are legitimated and privileged over other norms, including the conception of democratic norms held by some polities. (Benhabib 2006). Sometimes the ethical dimension is stressed. (Appiah 2007).
This view posits a new constitutionalism, grounded in a vertical ordering of domestic law with constitutional provisions at its apex. This has been applied in the context of Latin American constitutionalism studies. (e.g., Landau 2005, 704-710; Schor 2008). More generally, the notion is that “[c]onstitutionalism is an ideal that may be more or less approximated by different types of constitutions....” (Rosenfled ed 2003, 10).
Institutionalism, at the supra-national or national level is rejected as anti-constitutionalist. Like Neil Walker, these scholars tend to ask: “Is it at all legitimate even to attempt to translate the language and normative concerns of constitutionalism from the state to the non-state domain? If it is not, there is no problem that merits, still less requires, our attention.” (Walker 2003, 27). Instead, constitutionalism “reflects the abiding hope that from the shared culture, history, and ethos of these consanguineous states, a homogeneous legal order can emerge.” (Burnham 2005, 614 (on the institution of the Caribbean Court of Justice)). As such, “constitutionalism is not necessarily tied to any definite institutional project, European or otherwise. Less than an architectural project, constitutionalism would then be a programme of moral and political regeneration. This is what I mean by the description of constitutionalism as a ‘mindset.’” (Koskenniemi 2007, 18). Constitutonalism, then, might be understood as the expression of a set of abstract moral principles. (Scheuerman 2002, 366) “Irrespective of the functional needs or interests that laws may seek to advance, a Kantian view would focus on the practice of professional judgment in applying them.” (Koskenniemi 2007, 18). In its natural law formulation it suggests “certain principles of right and justice which are entitled to prevail of their own intrinsic excellence, altogether regardless of the attitude of those who wield the physical resources of the community. . . . In relation to such principles, human laws are, when entitled to obedience save as to matters indifferent, merely a record or transcript, and their enactment an act not of will or power but one of discovery and declaration.” (Corwin 1955, 4-5).
The principal issue, then, is to determine the set of ideals that follow. This effort, of course, has been at the forefront of substantive constitutionalism since the end of the Second World War with the reconstitution of the Japanese and German constitutions, rich in process constitutionalism before 1945, which were enriched with a set of constitutionally mandated substantive moral/ethical principles. (Supreme Commander for Allied Powers 1949; Backer 2008, 11). These apply as well even in post-Soviet Marxist-Leninist regimes. (Backer 2006).
Much of the recent development of universalist secular constitutionalism has invested tremendous resources into an interrogation of the components of those ideals. Among the most influential theorists of this project is Louis Henkin. (Henkin 1993, 533: Henkin 1990). Others have drawn from Henkin’s conceptual framework to privilege one or another aspect of this substantive values constitutionalism. Michel Rosenfeld, for example suggests that "modern constitutionalism requires imposing limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights." (Rosenfeld 1994, 3). Id., at 3). Daniel Lev looks to substantive legal process (Lev 1993). Frank Michelman looks more ambiguously to freedom, individual rights, limited government and rule of law. (Michelman 2005). Gidon Sapir speaks of verticality and constitutional supremacy, modification limited, powerful and independent judiciary, popular sovereignty. (Sapir 1999). Michel Rosenfeld provides a useful digest:
in the broadest terms, modern constitutionalism requires imposing limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights. Moreover, although not all constitutions conform to the demands of constitutionalism, and although constitutionalism is not dependent on the existence of a written constitution. The realization of the spirit of constitutionalism generally goes hand in hand with the implementation of a written constitution. (Rosenfeld 1994, 3).
This sort of approach was widely held in any number of variations and form a variety of perspectives, all of which embraced the process substantive rule of law basis of constitutionalism. Thus, for example, a Soviet scholar could write:
“Constitutionalism is thus a written constitution per se surrounded by a cloak of unwritten principles, values, ideals, procedures, and practices. Without attempting to list the entire file of attributes of American constitutionalism, let me single out the key ones. Making up the core of constitutionalism are the ideas of "popular sovereignty" and a social contract as the source of the government; the principles of republicanism, federalism, separation of powers, and government limited by law; respect for the rights and liberties of citizens and the protection of private property; the rule of law and the supremacy of the Constitution; and independence of the judiciary and judicial review.” (Vlasihin 1989, 258).
The foundational idea remains the same. As an American Scholar of the last century put it: “constitutionalism has one essential quality: it is a legal limitation on government.” (McIlwain 1947, 21). This idea acquired universalist aspirations after 1945. (Arendt 1977, 143). These concerns are bound up in notions of process—protections against arbitrary actions on the part of government or any of its servants. Many of these notions are now understood as an aspect of “rule of law.” (Peerenboom 2002, 126-188). In this sense, rule of law can be understood as embedded in mandatory systems
for maintaining firm limits on the arbitrary use of state power by the individual. This is the idea of rule of law in its process aspect, limiting the use of state power only when grounded in legitimately enacted law. Second, rule of law is understood in its substantive aspect as vesting the state with the critical role as guardian of a set of foundational communally embraced substantive norms that are t be protected and furthered through the use of state power grounded in law. (Backer 2006, 39).But process is not enough to protect a polity from itself. (Lippman 1997). Rule of law or limits as a foundational component of constitutionalism also has a substantive aspect. Academics sometimes speak of positive as well as passive constitutionalism associated with the vindication of certain norms. “Thus, we should talk about constitutionalism in terms of what government should do, rather than what it cannot or should not do. We must tackle the challenge posed by Leon Duguit many years ago: ‘Any system of public law can be vital only so far as it is based on a given sanction to the following rules: First, the holders of powers cannot do certain things; second, there are certain things they must do.’” (Miller 1984, 204: Duguit 1919, 26).
The principles under which legality is constituted becomes of paramount importance within modern constitutionalism. Hayack, for example, noted that “all power rests on the understanding that it will be exercised according to commonly accepted principles, that the persons on whom power is conferred are selected because it is thought that they are most likely to do what is right, not in order that whatever they do should be right.” (Hayack 1960, 181). For many, the focus is on democracy. (e.g., Dewiel 2000; Sunstein 2002). Samuel Issacharoff speaks of “the role of constitutionalism in stabilizing democratic governance in . . . fractured societies. . . because of the limitations it imposes on democratic choice.” (Issacharaoff 2004, 1861).
However, democracy, as a concept serves as a proxy for a substantial spectrum of meaning hidden within that ideal. (Michelman 2005). Contrast, for example, the universalist focus on democracy as the essential focus of constitutionalism as expressed by President Bush (Backer April 1, 2006), with emerging notions of African democratic constitutionalism. “In a nutshell, constitutionalism in Africa in the early decades following the end of colonialism faced a massive deficit of legitimacy. Africa's postcolonial rulers chose to create sources of legitimacy not in constitutions or democratic elections but in supraconstitutional (and suprademocratic) welfarist projects tied to the pressing material concerns of the people.” (Prempeh 2007, 481). Some have argued that “[d]emocracy is essentially a member of the mutual-benefit class of theories. If political divisions cut very much deeper than the marginal issues on which we can democratically compromise, democracy may no longer seem to produce mutual benefits. It then produces major -- not marginal -- winners and losers. Big disagreements bring us down.” (Hardin 2999, 277). Democracy, as a constitutional concept, is sometimes tied to notions of citizenship—that is the legitimacy of democracy itself is grounded in the inclusion of all members of the polity in an effective and perhaps equivalent way. Seyla Banhabib speaks to notions of citizenship and moral personhood. (Benhabib 2004). But equality and democracy within notions of citizenship may carry different shadings of meaning as well. For example, some have argued that mainstream, multiculturalism and human rights discourse do not adequately focus on issues of distributive justice. (Cheah 2007). The meanings of those terms vary with the politics of the advocate. (Barry 2002; Gutman ed. 1994). And the idea has been subject to critique. (Sen 2007). And the distinctions between constitutions and constitutionalism (that is between legitimate and illegitimate constitutions of governments) have now found a parallel in the rise of distinctions between legitimate and illegitimate democracy (now understood as a critical component of constitutionalism). (Backer June 27, 2008). “Under modern notions of transnational constitutionalism, sham democracies are illegitimate--as are the governments created thereunder. As constitutional "outlaws" sham democracies may be subverted, ignored, sanctioned, or overthrown.” (Human Rights Watch 2008).
These shades of meaning also affect notions of the real meaning” of rule of law, social justice, and political justice. Charles Fombad, for example, argues that constitutionalism
“clearly means something more than the mere attempt to limit governmental arbitrariness, which is the premise of a constitution, and which attempt may fail, as it has done several times in Africa. The concept today can be said to encompass the idea that a government should not only be sufficiently limited in a way that protects its citizens from arbitrary rule but also that such a government should be able to operate efficiently and in a way that it can be effectively compelled to operate within its constitutional limitations.” (Fombad 2007, 6; cf. Cheah 2007).But these arguments also point to another important aspect of substantive constitutionalism, the fundamental position of human rights within understandings of constitutionalism. “The fundamental value that constitutionalism protects is human dignity.” (Murphy 1980, 758). Others have noted that “[i]n the context of the human rights revolution, the main focus of the moral redefinition of the new democracies in contrast to the totalitarian regimes they replace is the latter's violation of human rights.” (Richardson 2006, 135-136). Human rights notions are especially important in the emergence of political communities from out of colonialism, where it is tied to notions of democracy. “In contrast to the presumed moral worth of nativism against the colonial rulers, the task in the era of new constitutionalism is the moral definition of democratic political community.” (Richardson 2006, 135). Sometimes that search leads to the rejection of uniformity in the way in which a political community is organized. (Kymlica 1996; Charles Young 1994: Iris Marion Young 1990). This strain can look to multicultural constitutionalism, which in the United States, tend to look inward.
This perspective on constitutionalism is sometimes couched in the language of polycentricity or pluralist constitutionalism. In the European context, Marlene Wind has suggested that a “polycentric approach would thus reject that the hierarchical nation state is the only or the best model to describe the European Union as it looks today or may come to look in the future. One might instead try to see the Community as consisting of an ongoing dialogue or negotiation between multiple networks and levels - each claiming its interpretation to be the valid one.” (Wind 2003, 122). I have previously described this as a foundation norm of contained conflict. “In a sense, the notion of contained conflict is built into a system with the irreconcilable goals of harmonization, subsidiarity and protection of insular cultures. This is a containment of conscious design. . . . It reflects both the mistrust of harmonization, Subsidiarity and insularity, as well as the mistrust of the absence of any of them.” (Backer 1997, 210).
This constitutionalist perspective can even suggest a blending of public and private law in the construction of higher order systems of governance. Indeed, sometimes constitutionalism and democracy are inverted within the hierarchy of political values. Christopher Walker suggests, for example, that “a lively and independent civil society, a political society with sufficient autonomy and a working consensus about procedures of governance, and constitutionalism and the rule of law-are virtually definitional prerequisites of a consolidated democracy” Walker 2006, 756). Sometimes constitutionalism and legitimacy assumptions are inverted, so that constitutionalism becomes one of a number of assumptions that serve legitimacy. (Poole 2005). Constitutionalist legitimacy is sometimes a proxy for accountability as a transcendent principle of state organization. Legitimacy, within a constitutionalist context, is sometimes also understood as a function of its historicity, and the control of that history. Amy Kapczynski asks, “[ac]cepting that we must think historically if we want to think constitutionally, and that we must, when thinking historically, also account for the present day legitimacy of the Constitution, what kind of history should we practice?” (Kapczynski 2005, 1042).
For others, “the very idea of Constitutionalism itself . . . at least in liberal democracies or republics, and certainly including our own, should be understood as entailing that states are obligated to ensure that all citizens enjoy those basic capabilities necessary to lead a decent life.” (West 2006, 1128-29, citing Nussbaum 2000). Still others use the constitutional taxonomy of Karl Loewenstein (1957) to merge notions of constitutionalism with normative constitutions. “Normative constitutions determine who become power holders, and really regulate the exercise of power and the relationship between power holders; their normative force is internalised by political actors who really take the rules stipulated in the constitution seriously, respect them and abide by them.” (Chen 2007, 650). For Chen, then, a “normative constitution is thus an essential ingredient of the practice of authentic constitutionalism.” (Id.).
Another group might speak of constitutionalization strategies grounded in the distinctive needs of the stakeholders in a particular constitutional system. Ernst-Ulrich Petersmann, for example, has explored constitutionalism
“from a citizen perspective (e.g. as the struggle of citizens for 'constitutionalizing' national and international law by bringing it into better conformity with individual constitutional rights) and from a comparative constitutional perspective (e.g. focusing on the common 'constitutional principles' resulting from the struggle for individual and democratic self-government, like democracy, separation of powers, rule of law, human rights, legal primacy of constitutional over post-constitutional rules, social justice)'” (Petersman 2005, 662 & n. 39).
These ideas have been framed in a feminist positivist constitutionalism as well, as a framework for a values based program of social changes—disruptive, ameliorative and transformative—grounded in gender justice. (Dixon 2008). Ironically, these strategies for constitutionalism apply even for those who would otherwise focus constitutionalism on the local characteristics of the constitution making demos (or ethnos). Thus, for example, some argue that some constitutionalist internationalism may be a necessary predicate to avoid the pitfalls of majoritarianism within religiously based constitutionalizing states. (Sunder 2005). His theory of “Enlightened constitutionalism rejects shutting down transnational discourses in the name of preserving authenticity and resisting "imposition." It is premised on a view of permeable borders across which ideas and power inevitably will flow. Furthermore, enlightened constitutionalism embraces the affirmative need for and right to cross-cultural dialogue.” (Id., 902).
What clearly emerges within this tradition, though, is the development of a dynamic relationship between constitution, constitutionalism and legitimacy. A written document denominated ‘constitution’ may not be considered legitimately so unless it is written in accordance with the substantive and procedural parameters of constitutionalism. (Bonime-Blanc 1987; Okoth-Ogendo 1993). “Defining "constitutionalism" to mean simply "having a written constitution" is tautologically vacuous and necessarily fails to provide any insights into the legitimacy of a constitutional government.” (Harris 1992, 985). “Constitutions without constitutionalism are a fairly standard, if not the defining, feature of illiberal regimes everywhere.” (Prempeh 2006, 1280; citing Borón 1993; Coomaraswamy 1993). But the touchstone is a taxonomy that makes it easier to distinguish between constitutions with the objective of limiting the ability of states to legitimate governments through constitutions that do not practice what they appear to preach. As Chin-Wee Chung suggested in the Korean context, “[i]n setting up the formal governmental structures, the North Korean communists paid special attention to legal and political formalities, that is, constitutionalism. Such an emphasis was important because North Korea was in a bitter competition for legitimacy with the Republic of Korea.” (Chung 1986, 22).
Yet another focus of this approach is technical. Assuming a set of universal values to be advanced—the substance of constitutionalism—the real issue is reduced to process. Constitutionalism may vest constitutions with a strong positive function—no longer merely to reflect the will of the demos/ethos from which it derives its authority to constitute, but to transform that polity as well. This has been especially strongly felt in some constitutionalist discourse after the 1980s. In an African context, the positivism of constitutionalism—sometimes expressed in the notion of transformative constitutionalism—is emphasized. (Klare 1998). Klare suggested that the long term object of transformative constitutionalism is to induce “large-scale social change through nonviolent political processes grounded in law.” (Id., 150). But there is also a tradition in the West that parallels these notions. (Derrida 1990, 969-71). Derrida noted that “[p]erhaps it is for this reason that justice, insofar as it is not only a juridical or political concept, opens up for l’avenir the transformation, the recasting or refounding of law and politics.” (Id., 969). There is an American version of transformative constitutionalism as well. (Cover 1983, 34-36). Cover uses the term “‘redemptive’ to distinguish this phenomenon from the myriad reformist movements in our history. Redemption takes place within an eschatological schema that postulates: (1) the unredeemed character of reality as we know it, (2) the fundamentally different reality that should take its place, and (3) the replacement of the one with the other.” (Id., 34; cf. Siegal 1988).
Constitutionalism as an instrumentalist device also may serve as a bridge between the local and the global. In addition, the methodology of successful implementation becomes the crux of the problem of constitutionalism as an internationalist construct. (Widner 2008). She notes (“Policymakers have started to ask what we have learned and specifically whether some constitutional reform processes are more likely than others to deliver a reduction in violence or more rights-respecting fundamental documents.” (Id.).
The development of an international elite of judges committed to the convergence of constitutionalist ideals is also critical to the project. (Miller 2004; Volcansek, ed. 1997). Miguel Schor provides an excellent analysis from the perspective of comparative constitutional law. (Schor 2008). The germinal notions were developed a decade ago by Ann Marie Slaughter. (Slaughter 1994; Slaughter 2003). As a consequence, “one of the most significant effects of judicial empowerment through constitutionalization has been the transformation of national high courts worldwide into major political decision-making bodies and a corresponding judicialization of "mega" politics.” (Hirschl 2005, 475). It has served a critical role even in war and the execution of defeated leaders, among them Saddam Hussein of Iraq. (Backer December 30, 2006). I suggested that “the trial and execution of Saddam Hussein represents an application of the principle that states, their apparatus and the individuals with authority thereunder (from whatever source) are subject to a higher law than the constitutional law of the state they represent. The execution of Saddam Hussein suggests that even the people of a sovereign state may not vest their representatives with authority that exceeds certain standards of conduct, and that the international community may intervene to limit those excesses.” (Id.). The agents of this change are made up of a new class of global actors made up of “global jurists and lawyers, tied to any number of national, international and non-governmental entities. In their hands, the customary law will acquire a life of its own in a global system which though uncomfortable for any single nation may provide the necessary level of mutual security to make it at least grudgingly respected.” (Id.).
Others are suspicious of this judicialization as part of constitutionalism. (Choudhry 1999). Some see in judicialization not necessarily just a means of effectively preserving rule of law constitutionalism, but also a cover for a transfer of power from the political to judicial institutions, without any greater advance of social justice than that possible through democratic politics. (Hirschl 2004). They suggest that it is not a global judicial elite but citizen mobilization and commitment to the constitutional settlement that is of critical importance to a liberal constitutionalism. For some in this group, the distinction between national constitutionalism and international constitutionalism may be important, and might be meant to serve as a brake on the creation of governance constitutionalism at the international level. (Petersmann 2006). Petersmann argues that international constitutionalism “provides for multilevel constitutional restraint aimed at limiting ‘constitutional failures’ at national as well as intergovernmental levels without pursuing state-like forms of constitutional governance at the international level.” (Id., 7). He proposed six principles of international constitutionalism as a framework for his model. (Petersmann 2002, n. 76).
For still others, political borders may be quite permeable. Constitutionalist mores seep across borders, whether or not invited. (Jacobsohn 2004). Madhavi Sunder has argued that constitutionalism is, in effect, a public and communal activity among the family of nations that that the ability of progressive elements in illegitimately constituted states to act may depend on the example of other states. (Sunder 2005). Aspirational constitutionalism is a related notion. As one academic put it:
Aspirational constitutionalism defines a country, a nation, in terms of its future, its goals and its dreams. Other countries' constitutions and constitutional examples can be used to express this aspirational sense and may be positively selected precisely in order to do this. For example, many second- and third-wave European democracies may have adopted the model of the Federal Constitutional Court of Germany precisely to demonstrate that they, too, aspired to realize the constitutional principles that the Constitutional Court had helped Germany achieve. (Schepple 2003, 299).Whatever its complexion, institutionalist and comparative constitutionalism has a common core—all look assume that constitutional theory cannot be understood as a purely domestic matter. This approach is new but growing. At least one scholarly journal has been created to institutionalize and create incentives for the production of this type of work within the legal academy. (Dorsen & Rosenfeld 2003, 1). They explain that the “International Journal of Constitutional Law (I. CON) . . . [is] designed to fill a need created by the recent trend toward globalization of constitutional norms, and by the ever-increasing use of comparative analysis in constitutional adjudication and scholarship.” (Id.).
Still, the very traditionalism that is rejected by internationalist constitutionalists have re-emerged as a potent force—at least in the United States. But not just in the United States. That is the point that Gunter Frankenberg effectively makes with respect to comparative law, convergence and legal imperialism. (Frankenberg 1997, 262-74). There, influential academics have acknowledged this sort of internationalization of constitution making, but appear to reject its implications—as illegitimate. Among the most important of the followers of this school is Noah Feldman—a person widely associated with the construction of the Iraqi constitution. (Backer 2008). But Feldman draws on an older learning arguing that the rule of law but not a constitutional regime may be imposed by force—but noting the success of more benign occupations on the evolution of constitutionalist regimes. (Franklin & Baun 1995, 2-3).
For Feldman, there is a distinction between constitutionalism and what he calls “imposed constitutionalism.” (Feldman 2005). The former is legitimate, and the later is not. Recalling the multilateral nature of constitution making in the former Yugoslavia, East Timor, Afghanistan and Iraq, he suggests certain illegitimacy because they are being drafted “in the shadow of the gun.” (Id., 858).
Each of these cases has seen substantial local participation in the constitutional process; but each has also seen substantial intervention and pressure imposed from outside to produce constitutional outcomes preferred by international actors, including NATO, the United Nations, and international NGOs, as well as foreign states like the United States and Germany. What is occurring in these contexts is the latest, most sophisticated form of imposed constitutionalism, raising its own problems and challenges. (Id., 858-59).Feldman’s argument is subtle but perverse. Imposing constitutional orders on Germany and Japan a half-century or more ago might be seen as a good thing. But the conditions ushered in by those constitutions have made their replication impossible. And the impossibility lies precisely in the nature of the success of those imposed constitutions within the transnational legal order. “Yet there is something theoretically and practically distinctive about imposed liberal constitutionalism today: it takes place against a backdrop of widespread commitment to democratic self-determination.” (Id., 859). Michael Baun offers a different view, based on the German postwar experience. (Baun 1995). “The experience of the Federal Republic, therefore, appears to support a different conclusion about the relationship between institutions and culture: that the political culture of a nation lacking strong democratic traditions can indeed be successfully shaped or molded along democratic lines, given the proper institutional framework and supportive economic and external political conditions.” (Id., at 80). Baun argues that “[i]n the case of the Federal Republic, the democratic norms and principles of its constitutional regime appear, over a relatively short period of time, to have become "ingrained" in the German body politic.” (Id.). Against this, Feldman offers ancient wine in a post modern bottle: looking back on the Japanese experience from this side of the Second World War, he states: “A half century later, one cannot imagine this sort of acquiescence being reproduced in most places in the world. Today a new constitution must be understood as locally produced to acquire legitimacy.” (Feldman 2005).
This approach to constitutionalism is grounded in an implicit ordering of substantive constitutional values in which democracy and self-determination are privileged and other notions of substantive norms—particularly that cluster of behavior norms limiting the power of states against individuals—is subordinated. This, of course, is hardly new to Feldman. Welshman Ncube had argued that “[r]epresentative government is at the heart of democracy and constitutionalism. Without it is idle to speak of the constitutional protection of human rights." (Ncube 1993, 14). It essentially conflates constitutionalism with these two of its elements. From these substantive values, virtually all constitutional expression is legitimate—principally because or to the extent it reflects the will of the majority. This privileging, “grounded in the democratic theory of self-determination, perfectly frames the conflict between egalitarianism and autonomy that lies at the heart of the contemporary problematics of imposed constitutionalism.” (Feldman 2005, 862). He elaborates:
Advocates of equality, typically outsiders, want to press for a constitutional guarantee of equality that will expressly trump any competing considerations derived from religion, or indeed from other forms of democratic politics. Meanwhile local elites-often backed by majorities empowered by the democratization process-would prefer to see a less complete victory for egalitarian values. They ground their arguments in the foundational claim that the constitution is meant to express the will of the people, understood in a majoritarian or super-majoritarian fashion. (Id.).
From this privileging of democracy emerges a faith in majoritarianism that translates for Feldman, when combined with self-determination as the mechanism for producing an act of sovereign will, into a basis for legitimating theocratic constitutionalism. (Feldman 2005, 877-885). “It is therefore a little strange to hear advocates of equality for women or minorities pressing the argument that new constitutions must not provide too great a role for Islam because doing so would be undemocratic.” (Id., 864-65). Constitutionalism itself is said to supply the necessary limit against majoritarian tyranny. Sanford Levinson, thus, notes that (“constitutionalism is an important limit to the value of majority rule precisely because it incarnates a value hierarchically superior to majority rule.” (Levinson 1988, 150). Others have offered views of expressions of sovereign will constitutionalist self determination in similar contexts outside the Middle East. (An-Na’im 1993). Others do not share this view. (Backer 2008; Travis 2005 In Africa, that faith has not always produced the desired effects. “The failure by recent constitutions to avoid the danger of democratic majoritarianism descending into the tyranny of the majority does not auger well for constitutionalism in Africa.” (Fombad 2007, 44).
Feldman suggested that transnational secular constitutionalism is in part an American product—but a product bereft of theory and heavy on politics. Feldman blames imposed constitutionalism on a cabal of Americas: “The answer involves the unlikely bedfellows of the human rights left, the neoconservative democracy exporters, and the evangelical right; to unfold it properly requires understanding the historical context of the nation building projects undertaken at the behest of the United States in the aftermath of September 11.” (Feldman 2005, 865). The argument is elaborated (id., 865-877). The principal failure of the older transnational constitutionalism is a failure at the core of the normative premises of written constitutionalism itself—“which is that the constitutional document ought to guide actual realities of government practice.” (Id., 872). As an alternative, Feldman suggests a sort of capitalist version of constitutionalism: “when constitutional norms are adopted by political elites as a matter of self-interest.” (Id., 885). Feldman makes clear that he is “not arguing that constitutionalism does not work, that it is not a real phenomenon, or that in its implementation it invariably masks the immediate self-interest of political elites. To the contrary, constitutionalism is a tremendously powerful and durable mode of government. But to succeed, it must get off the ground through a process of adoption by localized self-interest, not out of episodic external pressure that will soon be lifted.” (Id.). But he is cautious in his claims as well: “My more modest claim is that, where the international community or the occupier lacks the will or capacity for sustained transformation of constitutional norms over time, it would be mistaken to impose norms that are perceived by local political actors as antithetical to their interests.” (Id., 887-888).
This is a formalist constitutionalism with hopes eventually for an evolution to a substantive framework like those of other states. But this formal constitutionalism comes with no guarantee of substantive evolution. Indeed, the opposite might be true—Feldman’s form of constitutionalism might well solidify a normative constitutional sense based on the self-interest of governing elites. As long as the privileged values of democracy (majoritarianism) and self-determination are respected deviations from substantive international constitutionalism can be excused—and pressure for their adoption illegitimated as imposition. One student of the Iraqi constitution nicely summed up this notion. “While the enshrinement of morals in a constitution should not come to embody the moral command of the majority group's will upon all individuals, a complete denial of that moral identity across government institutions would be equally repugnant to any substantive approach to rights.” (Khawam 2006, 745). The ultimate aim, nicely reflected in this student comment, is balancing through which a sort of welfare maximization might be possible. “Ultimately, moral identity, in terms of secular or religious constitutionalism, must be defined in a way that is consistent with maximizing human rights, and hence democracy.” (Id.).
Feldman continues “This is especially true when the imposed norms are understood locally to contradict important symbolic features of the constitutional order, such as the role of Islam.” (Feldman 2005, 888). Ironically, other constitutionalists have posited that even this stance, so deeply rooted in a perverse localism, is itself of concern, because it suggests that what passes for constitutionalism elsewhere is not up to that of those nation-states who may no linger “impose” the normative foundations of their own indigenous constitutionalism. (Sunder 2005). Sunder faults Feldman for a bit of stereotyping (“the Middle East is religious and patriarchal, the Western world secular and egalitarian” (Id., 892), the effect of which is to imply that the religious Middle East cannot measure up to the human rights standards of the West. “While Feldman sees democracy in the Muslim world as homegrown, he seems to imagine egalitarianism as largely exogenous to Islamic democracy.” (Id., 892). And so, ironically, Sunder moves from nationalist constitutionalism to a convergence based internationalist non-institutional constitutionalism to fit his own model of a kinder and worldly institutional Islamic constitutionalism. Again, from his introduction: “Transnational influence is inescapable; political and cultural autarky is hard to imagine. Power and ideas hardly pause at passport controls. And diverse peoples, even governing elites (especially in tentative times), look across borders for validation.” (Id.).
On the other hand, Feldman’s contextually driven hopefulness appears in at least one strain of Palestinian constitutionalist discourse as well. As Zaha Hassan notes, “[r]ather than serving a legitimating function or setting out the state's programmatic mission, the Palestinian draft constitution appears to be aimed at communicating its vision of how the institutions of power should be organized in a future Palestinian state. Clearly delineating the institutions of power may serve to regain the trust of the Palestinian people in their government, encourage transparent and accountable administration of the state, and establish a floor for the ongoing attempts to find a just resolution to the Palestine-Israel conflict.” (Hassan 2004, 920). Thus, for Hassan, the “fact that a constitution may be drafted for purposes other than setting up constitutionalism does not mean that constitutionalism may not take root.” (Id.; referencing Brown 2002). There is a relationship here to aspirational and transcendent constitutionalism. (Cover 1983; Schepple 2003).
There is a bit of the nostalgic about this, which is both deeply ingrained in American legal philosophy and infused with a politics of ethnocentric privilege through constitutionalism. (Anghie 2004). Cass Sunstein has suggested an ethnos/demos orientation to higher law by focusing on popular pre-commitment as inherent in legitimate constitutionalism. (Sunstein 1991). It is also infused with a privileging of historicism that serves both to benefit and legitimate a particular and highly contextualized vision of reality. “Constitutional historicism aspires to definitive historical interpretations, and asserts, usually via the fiction of collective consent, that history itself has constitutional authority.” (Kapczynski 2005, 1112). Edward White has suggested the ahistoricity and the transformation of American constitutionalism from republican to democratic centered. (White 2002; Flaherty 1995, 526). And yet others have argued that the “standard narrative of American constitutionalism inadequately explains how Americans engaged in drafting, revising, and debating the meaning of written constitutions. Much of that experience is either ignored or dismissed as being aberrational and of no meaningful consequence to "American" constitutionalism.” (Fritz 2004, 1348).
It is suspicious of universals. The standard understanding assumes that “constitutionalism largely consists of the effort to define and manipulate context. Thus, the act of drafting a constitution is best understood as an effort at self-definition. By writing and adopting a constitution, a political community defines its boundaries as a political community, and thereby establishes the system from which legitimate outcomes derive.” (Wasserstrom and Seidman 1988, 106). However, it may rely on values that appear to bleed across political borders. It is only a short step from Feldman’s “imposed constitutionalism” to Rubinfeld’s “international constitutionalism.” (Rubinfeld 2004, 1974). Like Feldman, Rubinfeld privileges democracy (as he understands it) and self-determination (though a self expression in ethically unique constitutionalism) as a consequence of which any form of constraint on ethnic self-expression through constitutions is anti-democratic and therefore illegitimately constitutional. (Id., 1975). Feldman, of course, posits an internalized constitutionalism from an international framework; Rubinfeld works from the traditional state as highest source of power framework, proffering a vision of democratic constitutionalism grounded in a demos which seeks to implement its fundamental norm standards reflecting its unique legal and political culture. (Rubinfeld 2001, 54-58, 183-184). But both reflect an older tradition, which as expressed by others, posits a constitutionalism that is inward looking. This tradition effectively strictly limits variation in elite American Academic discourse (that is, the discourse that counts for political and judicial purposes). (Alexander ed 1998; Rosenbaum ed 1988; Pennock & Chapmaneds 1979).
Both also embrace the assumption that each political community is unique (otherwise there would be no basis for independence). These notions, of course, are foundational to the American experience with independence as expressed in the American Declaration of Independence (1776). Echoes of that foundational approach to constructing a demos can still be heard in modern judicial pronouncements. This was particularly true of the opinion of the German Federal Constitutional Court working through an analysis of the power of Germany to enter into a treaty expanding the powers of the institutions of the European Union. (Brunner v. European Union Treaty 1994; Zuleeg 1997). Yet the very reasons that supported the idea that a Europe without a demos was incapable of assertions of legitimate constitutional will, when inverted, could be used to assert that, indeed, such a demos (and will) already existed—the issue was merely empirical rather than theoretical. (Kumm 2006, 528; Backer 2002).
The uniqueness of a territorially contingent demos/ethnos must find political expression in the foundational constitution of the state. The relationship between demos, as a political sorting device and ethnos, serving a similar purpose, has tended to be complicated in political theory.
For the great state builders of the 19th century, from Hamilton and Thomas Paine in the United States, to the state builders all across Europe, and ultimately the builders of totalitarian state regimes in Europe in the early 20th century, “the images of legal science and legal practice were (and still certainly are) mastered by a series of simple equivalences. Law = statute; statute = the state regulation that comes about with the participation of the representative assembly. Practically speaking, that is what is meant by law when one demanded the ‘rule of law’ and the ‘principle of the legality of all state action’ as the defining characteristic of the Rechtsstaat” (Backer 2008a; quoting Schmitt 2004 (1932)).
This traditional approach to constitutionalism has proven problematic for a theory of legitimacy of state constitutions within a federal system—they are higher law, yet not constitutional in the larger sense. (Gardner 1993, 1028-30; but see Landau 2007, 372-374; for a revisionist perspective Fritz 2005). On the other hand, federalism might suggest a more pluralistic approach to national constitutionalism—in which multilevel constitutional principles need not apply uniformly at all levels of government in a federal system (Rosen 2005)—or as an escape from its limits. (Brennen 1988; Fitzpatrick 2004).
It also conflicts with a different traditionalism ancient within the American constitutional context—natural law constitutionalism. (Barnett 2004). Natural law constitutionalism, ironically, can posit a sort of transcendent universalism. (Butleritchie 2005). But the universalism of this form of constitutionalism emanates from outside the possibility of human will or consent. In this sense, naturalist constitutionalism comes closest to theocratic constitutionalism, though it may not be the same thing. Both would look to the universal, a universal beyond any particular constitutional community, but natural law constitutionalism would not necessarily seek those values within a particular universal institutionalized religious community. (Backer July 23, 2008). But it can as easily serve to strengthen the contextualist notions of traditional state (demos/ethnos) based constitutionalism. For example, David Butleritchie argues for a contextual constitutionalism grounded in natural law. “By calling such a process organic, I hope to connote that such a process is most healthy and robust when it is left to grow from within its own particular context. In other words, an organic constitution is one that is formed in the crucible of a distinct social and political context. To try to deny that context by imposing universal norms, in this case by laying so-called fundamental principles of constitutionalism across a developing or re-developing society, is both dangerous and troubling. (Butleritichie 2005, 41). Reflecting the orientation of nationalist constitutionalism of Rubinfeld (2004) and Feldman (2005), Butleritchie speaks of constitutionalism as organic and “meant to convey a belief that constitutional formation should be homegrown in order for it to take root and flourish.” (Id.).
For traditionalists, the core question of constitutionalism is the process and substantive components of governmental structuring uniquely suited and appropriately expressed by a singular political community composed of a unified demos/ethnos.
“Although law is by no means static, legal evolution in each country is distinct and will produce vastly different outcomes. Far from converging over time, legal institutions remain different. “Law and legal evolution are part of the idiosyncratic historical development of a country, and that they are determined by multiple factors, including culture, geography, climate, and religion.” Pistor & Wellons 1999, 35).Its source is democratic legitimacy expressed through the will of a unique people (demos) exercising its general will through equal citizenship rights. “Within the nation-state context, it assumes a common identity on which one can base the expression of the general political will via parliamentary representation.” (Smismans 2007, 616). With a striking resemblance to the ethnos based theory of demos, the great and perverse product of the 19th century in Europe (Schmitt 2004), nationalist constitutionalism builds in a consequential uniqueness to territorial boundaries—even of multi-ethnic and multi-religious states. “The dimensions of French constitutionalism are not altogether clear to Americans or to Japanese, the Indian or Norwegian cases seem odd anywhere else, and so on because the political compromises worked out historically, the tacit social and economic agreements made along the way, the play of local habit and values and cultural assumptions, the ways in which change proceeds, are all taken for granted at home but are unfathomable away.” (Lev 1993, 141). Universalism, even of principles of governance, are viewed with suspicion. “Consequently ‘citizens are deprived of their particularities and their embeddedness in particular communities, cultures, and social roles and conceived as abstract political beings whose opinions converge around a concept of the public good which is more or less shared by all because all are equals. Only equals can form a general will.’" Smismans 2007, 616; quoting in part Preuß 1998). In the United States, this is reflected in what for many academics amounts ot a truism of American political political culture: “the idea that a written constitution reflects the will of the sovereign people--both empowers and limits American government” (Fritz 2004, 1327).
In the Western (and principally American) context, those rights expressions target the power of the state, as well as the exercise of state power by or through the state apparatus. (Kay 1998, 2-16; Powell 1993, 4). It is in this vein that Martin Redish, for example, can speak of American constitutionalism. (Redish 2006, 152-154). Redish suggests that “American constitutionalism, as I use it, links two distinct, albeit intertwined, levels of theoretical analysis. One is appropriately described as ‘macro’ and the other as ‘micro.’” (Id., 152). Macro constitutionalism looks to “the basic notion of limited government, confined not solely by the will of the majority or the decisions of the majoritarian branches of government, but also by a binding, written constitutional structure, subject to revision, repeal, or amendment only by an intentionally cumbersome supermajoritarian process.” (Id., 152). Micro constitutionalism looks to the social contract, positing “that government will not employ its power in an arbitrary, invidious, or irrational manner against the individuals to whom it is accountable”. (Id., 153).
As commonly understood, “the basic idea behind constitutionalism is preventing the abuse of state power. Constitutionalism is defined as a "determination to bring ... government under control and to place limits on the exercise of its power."” (Dawood 2008, 1434; quoting in part Vile 1998, 2). National or nationalist constitutionalism, then, serves as a nexus point for the identification and vertical ordering of a system of substantive and process values, which might reflect the unique national will of the territorial sovereigns. “Neither constitutions nor constitutionalism can be transferred. The point should be obvious, but is often obscured by proprietary claims to the correct model.” (Lev 1993, 141).
For all that, the basics of nationalist constitutionalism are suspiciously similar to those of the internationalist or institutionalist constitutionalism described above. These usually include democracy (however defined) and rule of law. One European scholar defines national constitutionalism, for example, as “constituting and limiting government power for the protection of equal rights of citizens by means of constitutional rules of higher legal rank.” (Petersmann 2006, 6). Joel Trachtman argues that (“constitutionalization must be understood in at least two, and perhaps three, dimensions. In the international setting, this concept has a 'levels' problem. In a domestic setting, one central hallmark of constitutionalization is the restraint of the state -- setting limits on the legislative capacity of the state.” (Trachtman 2006, 630).
But there are other values as well. For example, constitutionalism and rule of law within political systems is understood as requiring a written constitution memorializing a higher law interpreted by an independent judiciary and lawmaking is constrained by protections against arbitrary action and confined to a representative legislature.(Sartori 1987, 308-09). There is a strong sense that the values chosen ought to reflect the particularities of the political culture from which it arises, (Franklin & Baun 1994, 6-7), especially as moral or ethical perceptions. (Elster 1991, 465).
Still, these substantive notions themselves are value laden and ambiguous. (Backler 2006); Okoth-Ogendo 1993). The possibilities and limitations of this sort of old fashioned nationalist constitutionalism in its American form are nicely evidenced in the form of “popular constitutionalism.” (Tushnet 2000; Kramer 2004; Sunstein 1999). The focus is on the institutionalization of an appropriate hierarchy of interpretive authority that meshes best with the unique principals of American political culture, and especially its notions of the “true” meaning of republican democracy and federalism. (Id.). The object of all this constitutionalist theorizing are the common law courts, especially in their role as guardians of the “higher law of the constitution” (Corwin 1955), which these modern day democrats fear as much as James I feared the English common law courts several centuries earlier. (Backer 2008a). The nature of judicial authority thus animates even nationalist constitutionalist opponents of popular constitutionalism. (e.g., Gerber 2008; Whittington 2007; Gardbaum 2007, 794-95; Murphy 2007).
There is a parallel in popular constitutionalism to Feldman’s (2005) majoritarianism as the foundational principle of nationalist constitutionalism. This parallel extends to the definitional difficulties of the concept of the popular in popular constitutionalism. (Chemerinsky 2004, 675-76). Chemerinsky notes that "there is no precise definition of the concept.... A major frustration in discussing the body of scholarship arguing for popular constitutionalism is its failure to define the concept with any precision." (Id., at 675-76). But therein lies a powerful critique as well:
“At precisely the same moment that some constitutional theorists are highlighting popular involvement in the mechanics of constitutional interpretation, political scientists tell us that participation and interest in politics are declining. Moreover, popular interpretive opinions are often based on limited information, and are highly susceptible to manipulation by elites. . . . The result is an academic construction where "the People" look a lot like Woody Allen's Zelig, inhabiting whatever incarnation is needed to conform with the theoretical backdrop.” (Gewirtzman 2005, 900).Nonetheless, the notion of political power in the people, both as abstraction and as a physical force for change, is powerful. Ran Hirschl, for example, writes about the way in which democratic politics provides a legitimate vehicle for advancing constitutionalist goals of social and political justice. (Hirschl 2004). The notions underlying popular constitutionalism in the United States have analogues elsewhere. (Wilson 2005 (Ukraine); He 1996 (China); Tsing-yuan 1994 (China); Lee 2005 (Korea)). And it has its critics as well, who argue, for example, of the importance of regional human rights courts in advancing substantive values oriented constitutionalism. (Stone Sweet 2000). Thus, for example, the Ukraine’s Orange Revolution “was heralded as a dramatic and contemporary affirmation of a core tenet of democratic theory--that an informed and vocal citizenry is in fact more powerful than an illegitimate elite wielding the apparatus of government.” (Jaskiw 2007, 37; see Karatnycky 2005). Constitutionalism, nationalism, and contextualized choice conflate.
In its American form, the concept of popular constitutionalism remains inward looking but becomes a political device—an rhetorical trope masking an agenda the goal of which is to undo the initially shaky (West 2003a) constitutional settlement of the early 19th century in the United States in which constitutional interpretation was deemed to be judicial in character and thus the subject of the exercise of judicial power. (Marbury v. Madison 1803). This is especially potent in the contests between the state and religious establishments. (Ravitch 2004). And there is a certain sustained re-institutionalization of attacks on that early settlement. (Backer 2002a).
As such, for Americans, the question of constitutionalism, especially in its form of judicial interpretive power, reduces itself to two questions, both relating to power. “The key concept of constitutionalism is power, defined in this way for present purposes: Power is the ability or capacity to make decisions affecting the values of others, the ability or capacity to impose deprivations and bestow rewards so as to control the behavior of others.” (Miller 1986, 381). The first targets the use of foreign sources (e.g., Resnick 2006, Part III; Alford 2005; Tushnet 1999)—now understood in its larger context as a battle over control of the essence of the character of the state and its relationship to other states and the community of nations, (Compare Anderson 2005; Glensy 2005; with Ginsberg 2005; Slaughter 2003), a debate with echoes elsewhere. (Allen & Huscroft 2006). The other targets the constitutional power of the legislature, the ‘popular’ in popular constitutionalism, or on popular movements to effect legislative change. (Fiss 2007, 192-194; Eskridge 2002; Abramovitz 1996). Yet even here, there is little to suggest a limitless majoritarianism—both for fear of a decent into tyranny but also because of the popularity of the notion of entrenchment in constitutional law, and so back to the principle of rechtsstaat, this time focused on the constitutional authority of the legislature. (Dorf 2000; Scalia 1997).
Foundational to this approach to constitutionalism, a nationalist constitutionalism, then, is the assumption of the uniqueness of each national community. This sort of nationalist constitutionalism is reinforced not only by traditional notions of social contract but by notions of cultural and ethnic solidarity or even by a post colonial experience. (Resnick 2006 (discussion and critique)). It is a short step from Feldman’s imposed constitutionalism (Feldman 2005) to Mark Tushnet’s skepticism about the transnational element to constitutionalism. Tushnet suggests “that what primarily determines the content of constitutions are the intensely local political considerations "on the ground" when the constitution is drafted, and therefore that normative recommendations about what "should" be included in a constitution or constitution-making process are largely pointless.” (Tushnet 2008, 1474).
It is an even smaller step, though one tinged with irony, from Tushnet’s skepticism to the more radical critique of constitutionalist critical legal scholars. These academics, adopting variations of post-modern theoretical stances are generally suspicious of internationalism, conceiving of it as a tool of hegemony. Some of them sometimes seek refuge in plural constitutionalism. (Anderson 2005, 148). Others look to dynamic constitutionalism. One of the most interesting expositions of this sort of dynamism combines both the element of movement and the core progressive constitutionalist assumptions about anti-subordination and social justice. It sometime speaks of a transitional constitutionalism as both constituting the state apparatus and transforming the society from which it arises (Teitel 2000). Still others seek to develop notions of a redemptive constitutionalism. (Saulding 2003; Cover 1983, 34-36).
Ironically, pluralist or redemptive constitutionalism in some forms can exhibit a refusal to be confined to a particular national context, especially in the context of citizenship and participatory rights of sub national or identity groups whose memberships exist across states. It reverts to the sort of ethnos based foundation for political constitution that once supported both the break-up of 19th century European Empires and the foundations of Nationalist Socialist constitutionalism. (Schmidt 2004; Backer 1998). These notions, ironically can be quite conservative. (Backer 1998a). These notions include differentiated citizenship rights (Cott 2000) and the consyiyution of groups as subjects of constitutional rights, for example indigenous communities and Afro-Bolivians, (Backer December 9, 2007), and other variations. (Lipkin 1995). Constitutionalism, at least at the micro level—at the level of its constituent values—becomes a proxy for power games. (West 1990). The permutations of this micro analysis are almost limitless and constrained only by the inventiveness of those with authority to imagine changes. For example, Frederick Schauer has noted in his own critique that
“Robert Post and Reva Siegel offer a mixture of departmentalism (endorsing the constitutional interpretive authority of Congress), popular constitutionalism (giving a role to the people in defining the Constitution), and skepticism about aggressive judicial review (criticizing the Supreme Court for insufficient deference to the constitutional determinations of Congress) which is not easily pigeonholed. Nevertheless, their view plainly falls within a tradition of concern over the anti-democratic tendencies of strong forms of judicial review and judicial supremacy.(Schauer 2005, 51 & n. 180; citing Post 2003, 36; Post & Siegal 2003; Post & Siegel 2003a).To that extent, values constitutionalism becomes recontextualized. Postmodern constitutionalism, it was once offered, “asks how changes in technology and culture create new opportunities for the exercise of power. It seeks to draw closer connections between the material conditions of life and thought by studying the technological re-creation of forms of life.” (Balkin 1992, 1978). As he put it more starkly:
“Postmodern constitutionalism is the constitutionalism of reactionary judges surrounded by a liberal academy that despises or disregards them, and which is despised and disregarded in turn; postmodern constitutional culture is the culture in which the control of constitutional lawmaking apparatus is in the hands of the most conservative forces in mainstream life, while constitutional law as practiced in the legal academy has cast itself adrift, whether out of desperation, disgust, or despair, and engaged itself in spinning gossamer webs of republicanism, deconstruction, dialogism, feminism, or what have you.” (Balkin 1992, 1967).
Yet, for all its complexities, this sort of approach fails to acknowledge the importance of communal norms developed among the community of nations. It reflects a now obsolete view that law ends at the territorial limits of states and that beyond those borders there is merely international relations or the contractual relations among states. Yet, this view is still powerful in more or less well-drawn form. Thus, some academics couch their analysis in terms that suppose a tension between constitutionalism and internationalism. “Both sets of commitments involve claims to special authority as higher law, but they are conceived of in two fundamentally different ways that are in tension with each other.” (Rubinfeld 2004). Others apply a variant of traditional theory, positing that international and constitutional law are co-constitutive of the other). On the one hand, “Constitutionalism is based on ‘the foundational law a particular polity has given itself through a special act of popular lawmaking" as the "inaugurating or foundational act of democratic self-government.’” (Catherine Powell 2008; citing Ruinfeld 2004, 1975). On the other hand, “internationalism "is based on the idea of universal rights and principles that derive their authority from sources outside of or prior to national democratic processes. These rights and principles constrain all politics, including democratic politics." (Id.). Under this perspective, “[t]he universal rights and principles inherent in internationalism emerge not from an act of democratic self-government, but rather as a check and restraint on democracy.” (Id.). Or constitutionalist analysis seeks to conflate the content of constitutionalism with its character or nature. That conflation can serve the interests of those whose focus is on contests for control of the normative structure of internally derived and constrained constitutionalism, advancing a sort of self reflective constitutionalism, bound up in its own notions of nationality and field separation (Gotanda 1995) and religion (Ravitch 2004). But it can also serve as a basis for internationalist or comparativist constitutionalist discourse as well. (Usman 2006 (constitution of India)). This has been particularly acute within Asian and Asian values constitutionalist discourse. (Tay 2005 (Asian values constitutionalism; Ibrahim 1996). Of particular interest has been the Chinese contribution to this discourse—it is at once strongly nationalistic and at the same time open to the universalization of its model or approach to constitutionalism. (Cai 2005; Ogden 2002; Lubman 2000). Michael William Dowdle, for example, argues in part that “whereas traditional constitutionalist analyses focus on the courts, the real locus of constitutional development lies in China's parliament, the NPC.” (Dowdle 2002, 10). The development of a substantive element to Chinese constitutionalism might evidence the strength of the object to create a substantive element to constitutionalism, based on constitutionalist principles emerging through ideological campaigns, within the framework of that system. (Backer 2006, 61-75; Kilion 2004, 31-33).
Most of the foundational articles about constitutionalism, as a national or international normative structure, quickly move from the nature of the concept (its institutional parameters) to the scope of its legitimate parameters. (Murphy 1993; Sripati 2007). Louis Henkin, for example, identifies among others, the consent of the governed, representative government, separation of powers, and protection of individual rights as elements of constitutionalism. (Henkin 2004, 55). Among the more powerful of recent iterations of this approach:
“Constitutionalism entails a sufficiently shared willingness to use law rather than force to resolve disagreements; to limit government power and to protect human rights through law and defined processes; to provide a reasonable degree of predictability and stability of law that people may rely on as they structure their lives; and to maintain a government that is legitimate and effective enough to maintain order, promote the public good, and control private violence and exploitation.” (Jackson 2008, 1254).
And most also target the individual—and the national community of individuals (a polity, ethnos or demos) over its sub-national communal components. Yet, constitutionalism, especially nationalist constitutionalism, appears to be pointing toward a recognition of sub-national groups as subjects of constitutionalism to an extent that might approach the privileged place within constitutionalist discourse currently occupied by the individual. (Backer December 9, 2007; Leclair 2006).
All the same, by that conflation, constitutionalism as a concept tends to be lost within the values that its proponents suggest form its core. And that mixing tends to strengthen arguments against what people might call the mechanical application of concepts across political communities. That, in a sense, is what joins national and internationalist constitutionalists. (Lutz 2006, 19). Yet, constitutionalism ought to be understood as something apart form those substantive norms it is said to serve. Much that passes for constitutionalism and constitutionalist discourse are veiled attempts to justify particular political settlements—and to justify them usually within a targeted group of states. Alternatively, constitutionalism serves as a mask over state building efforts at an international level, either as part of efforts to overthrow the secular state system or to federalize that system by the creation of a global federal state. In any case, the object is to move the locus of authoritative pronouncements over legitimacy of state organization—and its relationship with the people within a state—from individual political states to supra-national or international organizations. Constitutionalist discourse, then, tends to serve as post facto justification for political or legal conclusions that require legitimization.
What this short and necessarily incomplete walk through the thickets of constitutionalist discourse reveals, constitutionalism then, is a lively area of discourse within which there is little consensus beyond the most basic generalizations. Better put—constitutionalism tends to provide substantial evidence support Nietzsche’s old observation about the miscausation of politics and political theory. I have written of this in the context of the construction of the parameters of modern international law. (Backer 2003, 527-540). There, I suggested that “The exercise of sovereign free will by political communities have continued a conflicting double dependence—on the ‘leader’ as the corporeal manifestation of the political community and on the divine as the manifestation of the normative constitution of the community. As between communities around the globe this principle has permeated the very fabric of the foundational norms of political and legal organization.” (Id., 521).
Nonetheless, the parameters of a common understanding of constitutionalism can be extracted that avoids Geertz’s criticism of generalizations as either misdirected or valueless for the high level of generality required to find evidence of commonality. (Geertz 1973, 87-125). The key lies in the post 1945 efforts at globalizing constitutions.
The focus of this constitutionalism was transnational and secular. It was grounded on the rules of behavior derived from the understandings and sensibilities of the community of states. In this sense it was self-referencing and meta sovereign—the system essentially moved ultimate discretion up from any individual state to the community of states. (Backer 2008, 38).
Thus the fundamental character of constitutionalism is its separation from the organization of states and their governance mechanics through written instruments.
To summarize then, current discourse, distilled, suggests that constitutionalism, then, is a Weltanschauung—a system of beliefs relating to power in the world, and specifically to that power that is asserted to organize and run a political organization, and its expression—through law. (cf., Garet 1985, 70).
“No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.” (Cover 1983, 5).The early definitions get at this notion best. Before the Second World War, American academics, for example, began to understand constitutionalism in this way. “Constitutions, like all creations of the human mind and the human will, have an existence in men's imagination and men's emotions quite apart from their actual use in ordering men's affairs.” (Lerner 1937, 1293-94). Lerner embraced Walton Hamilton’s definition of constitutionalism to this effect, as “the name given to the trust which men repose in the power of words engrossed on parchment to keep a government in order.” (Lerner 1937, 1294; citing Hamilton 1931). Constitutionalism, thus invokes both evocative symbolism as well as instrumentalism—an ordered system or systematization of belief. (Corwin 1936). “As an instrument it must be viewed hardheadedly and used flexibly to promote the people's welfare in the present and future. As a symbol it is part of the mass mind, capable of arousing intense popular hysteria, loaded with a terrible inertia, its face turned toward the past.” (Lerner 1937, 1294).
That world view has an ordering element. Constitutionalism is a classification system for evaluating the organization of “statelike” entities. The term is borrowed from Robert Nozick, who in working through the idea that a dominant protective association within a territory might satisfy the conditions necessary to characterize that entity as a state, concluded that “the protective association dominant in a territory, as described, is a state. However to remind the reader of our slight weakening of the Weberian condition, we occasionally shall refer to the dominant protective agency as “a statelike entity,” instead of simply as “a state.” (Nozick 174, 118). For Nozick, the state need only have a de facto monopoly of violence rather than be the sole authorizer of violence. (Id., chapter 2 and 117-118).
The classification system is not merely descriptive, though it is necessarily descriptive as well. Constitutionalism provides a taxonomy of state organization grounded in law. (Frankenberg 2006). Stahnke and Blitt provide an excellent example, and one targeting the religious element in the constitutions of Muslim majority states. (Stahnke & Blitt 2005). It serves to distinguish those clusters of contextualized features that serve the ideological ends of constitutionalism from those others which must be deemed illegitimate. Constitutionalist taxonomy provides room for context, culture, tradition, and historical serendipity that mark a particular demos as distinct from others while providing a more generalized framework against which those contextual differences are contained. The ideology of framework legislation serves as a grounding for this sorting function of constitutionalism. The easiest way to conceptualize the descriptive and proscriptive parameters of this function is by analogy to the directive within the legal order of the European Union. Article 249 EC provides that “A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”. (EC Treaty 1957) The directive has proven to be a useful communication device between the general government and the Member States. “Directives are particularly useful when the aim is to harmonize the laws within a certain area or to introduce legislative change.” (Craig & de Búrca 2002). The overarching principles of constitutionalism work in a similar fashion—providing a framework of greater of lesser precise applicability depending on the principle involved (contrast the constitutionalist prohibition against slavery from that promoting democracy).
Taxonomy leads to an underlying normative structure. And constitutionalism’s world view is also particularly normative. Constitutionalism has an object—to judge the constitution of political systems as legitimate or illegitimate—in accordance with the normative beliefs from out of which it is constituted. This is a crucial evaluation. As Robert Nozick noted, “those legitimately wielding power are entitled, are specially entitled, to wield it.” (Nozick 1974, 134). It follows that the evaluation implicit in constitutionalism has legal and political consequences for the obligations of individuals to conform and other states to respect the organization and actions of a particular entity.
The normative element of constitutionalism carries with it a certain authentic or legitimating meta-ideology, like religion. As Peter Fitzpatrick nicely explains:
Salvation is proffered of course by the deific substitutes. The deific substitute arrogates to itself a completeness in and of itself, a self- sufficing ipseity capable of "autopositioning." Implicit in autopositioning as a continuous condition is the present ability to combine emplaced position with all that could ever come to it. That combining requires an assumption of self-immanence by the deific substitute; it requires the absorption into its existent emplacement of illimitable being. (Peter Fitzpatrick 2007, 178-179; cf. Roundtree 1990, 205).As Edward Harris nicely notes, “Constitutionalism is a political ideology that consists of various principles and assumptions about the dual nature of the individual as private person and public citizen, the nature of the state, and the nature of the complex set of relationships between the individual and the state.” (Harris 1992, 986). For the most part, that ideology has crystallized along now familiar rechtsstaat and Sozialstaat lines, which include: protection of the higher law status of the constitution in both blackletter and by an appropriate mechanism (an independent judiciary or constitutional court system), rule of law, democracy, consent, limited government, interdiction of arbitrary acts, actions taken in accordance with law, respect for human rights and dignity as such notions are commonly understood by the community of nations.
The ideology is both universalizing and secular—that is it draws on its own internal framework grounded in the mores of the collectivity of nation-states for its principles. Religion presents itself as either object worthy of protection within that cluster of human rights and dignity concerns, or otherwise subordinated to the superior mores generated by the global collective of states. (Ravitch 2007). Religion must behave, it must assimilate to the overall normative constructs of society, and thus softened, it may participate on the terms of the values framework of the constitutional order. (Hatch 1989, 3-17). It is in this sense, perhaps, that one can understand the push, in the West to the creation of soft versions of universalizing religion that speaks with a political voice. The object is to assimilate religion within a superior normative political framework system, to make religious expression more compatible with the superior political system, and to suggest the subordination of religion within that system—in matters of dissent, the only acceptable alternatives are exit or separation.
The bulk of constitutionalism’s ideological manifestations are to be found within the document itself, in the common or customary law of a particular polity (usually protected by the highest independent interpretive body of that polity), and sometimes also in the pronouncements and instruments of international and supra-national organizations (from regional human rights organizations, to the United Nations system). Thus, the common constitutional traditions of the community of nations may themselves serve as the basis for the extraction of principles of constitutional behavior and its application in specific contexts.
Lastly, constitutionalism has an implementation element derived from its ideologically constrained organizational basis. Constitutionalism is concerned with the way in which its ideologically derived norms are implemented. The focus has been on process and substantive provisions. Process provisions are meant to guard against arbitrary conduct. These provisions implement notions of lawfulness understood as rule of law in its traditional sense of due process or rechtsstaat (loosely understood). Substantive provisions are meant to limit the power of the apparatus of state constituted through the basic law of state organization. These are the Sozialstaat notions—the articulation of the moral and ethical basis of state organization. These provisions embrace the great normative framework of state power—limiting power, the relationship of individual to state, social justice and human rights considerations. Constitutions without both process and substance rights would not be legitimate constitutions of governments as understood under constitutionalist principles.
Constitutionalism provides a flexible basis for state ordering within its parameters. On the one hand, constitutionalist principles have been applied from a state centered perspective. Traditional nationalist constitutionalism looks inward for its ideology as well as its yardstick for measuring others. While mindful of developments elsewhere, it tends to privilege context, nuance, and internal manifestations of norms over formal suggestions of harmonization. It rejects the notion of convergence from without, though it is not averse to effective convergence as the act of will of the domestic sovereigns in accordance with their tastes. While nationalist constitutionalism doesn’t like to be told what to do, it is sensitive about benchmarking and will tend to conform to some extent. Issues of interpretation, of the sources and meaning of the constitutional order are all grounded in the idea of the uniqueness of the polity and the constitutional settlement.
More recently, such principles have been applied from a global perspective—producing an institutionalist and customary global constitutionalism. Transnational constitutionalism. Roscoe Pound might have been mocking when he declared that “[t]hroughout the world there has been a revival of the universal ideal” (Pound 2002 (1929), 29) yet this notion is nowhere more true than in the context of constitutionalism. Transnational constitutionalism looks to the communal traditions of the community of nations for the sources of substantive limits on state constitutive powers. Rejecting the notion that a state can stand alone in the construction of its government and in the exposition and implementation of the values underlying that system, transnational constitutionalism explicitly embraces the idea of a source of higher law outside the state or its local sovereigns. It concedes the possibility that the desires of a majority of its population may be checked by an ideology in the development of which it may participate but which it does not control. A useful example of the differences between transnationalist and nationalist constitutionalism is evidenced by the approaches of the Supreme Courts of the United States (Roper v. Simmons 2005) and South Africa (State v. T. Makwanyane 1995) when confronted with the question of the legality of the death penalty under their respective constitutional systems.
This essay has suggested the context in which ideas about constitutionalism have emerged in the early part of this present century. No longer is it possible to think about constitutions without considering the underlying values that each embraces and testing those values against a set of markers of legitimacy. The essay has suggested that the way in which constitutions are understood has changed dramatically since the time of the founding of the American Republic. But an important segment of the discourse about constitutions is being conducted without the participation of many Americans, who continue to embrace 19th century notions of national primacy and exclusivity. This is ironic in the face of the actions that have been the hallmark of American policy since 1945 that appears to emphasize a certain embrace of values universalism.
The constitutionalism discourse has spawned a set of legitimating approaches to constitutions and the construction of the apparatus of government. All share a similar approach to an understanding of the relationship between the individual and the state, as well as to the relationship between governmental power and individual prerogatives to be free of that power. All also share the fundamental understanding that distinguish despotism or tyranny (illegitimate) from constitutionalist (legitimate) states: rule of law—understood as a principle of agency or fidelity to the community whose power is being asserted and an obligation to at selflessly.
But all are distinguished by the substantive values that shape the meaning and application of the central principles of constitutionalism. These values permit insiders (citizens) and outsiders (foreign states, other entities and individuals) to judge the constitutional order created as either legitimate and authoritative or not, and to permit as well a judgment of the distance between the values ideals of a particular constitutionalist system and its reality. It is over values that variations in constitutionalism have arisen. And it is over values that constitutionalist systems compete for the legitimating loyalty of political communities. Though each variant—nationalist, transnational, theocratic, scientific or natural law constitutionalism—might view the others as illegitimate (or as incompatible with its own values), each might be legitimately understood as constitutionalist rather than despotic.
Whatever the outcome of this competition, it has now become clear that for many people, states and communities, there may well be a higher law above constitutions. States no longer sit atop the hierarchy of sources of law, even of their own domestic constitutions. However manifested, that higher law may be compelling. Depending on the strength of the communities of believers, conformity to that higher law may be compelled.
What is clear is that constitutionalism is escaping its territorial bounds. It is no longer merely the peculiar expression of a uniquely constituted demos/ethnos. Constitutionalism has acquired a transnational aspect. This development may challenge but has not eliminated traditional state bounded conceptions of constitutionalism. The transnational element of constitutionalism is not a uniform construction—it is developing along both institutionalist and communal/comparativist lines. The great difference between transnational and nationalist constitutionalism lies in the assumptions about the source of ultimate authority over constitutional design. For nationalists that ultimate authority remains with the state—contextualism and the local is privileged above other values. For transnational constitutionalists the source of ultimate authority is the community of nations. All states have a stake in the construction of constitutionalist values, but none control its development. Like states in a federal system, all are bound by the higher law of global constitutional values which serve as a limit on contextualist variation. For transnational constitutionalism harmonization within a universally applicable set of values is privileged above other values, and especially over the legitimately of inconsistent local variation.
Transnational constitutionalism suggests that a global system of constitutional values regulation is not only possible but also legitimate. It is as legitimate as its nationalist counterpart. It does suggest, though, that universal values can bind national expressions of sovereign will. The question then becomes—which universal values apply. For those who are building transnational constitutionalism from the post-1945 internationalist constitutional settlement the answer is easy: the values of the community of nations as reflected in global and regional supra-national institutional systems. But there are other sources of universal values—economics (Marxism), natural law, and religion principally among them. (Backer 2004a, 349-355; Backer 2009). Might they also serve as a basis for transnational constitutionalism to legitimate constitutional forms inconsistent with the values represented by secular transnational constitutionalism? Would its proponents even stop to ask? It is to those questions in the context of religious universalism that the article turns to next.
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