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Márton SULYOK: The Pros and Cons of Constitutionalism? A Review of Martin Loughlin’s Against Constitutionalism

These days, due to many rule of law debates going on around the world, especially in Europe (within the EU), the set of principles encompassing that of the rule of law merits examination as well. This set of principles is commonly alluded to as ‘constitutionalism’ and it encapsulates such fundamental principles as separation of powers, protection of human rights, democracy, pluralism, and of course the rule of law. This is how I have been normally approaching the topic of constitutionalism in the classroom for more than 16 years.

It is certain that the paradigm of constitutionalism is shifting, I have previously written about this referring to Thomas Kuhn, historian of science, who defined ‘paradigm’ as “universally recognized scientific achievements that for a time provide model problems and solutions.”[1]  Obviously, when we look at constitutionalism, it is easy to see that both our ‘model problems’ and ‘model solutions’ have changed over time under the aegis of constitutionalism, therefore our community of ‘practitioners’ (of science) need to change our paradigms as well. LSE’s Martin Loughlin certainly provides food for thought to this change, with his latest volume published with Harvard University Press in 2022, titled – very suggestively –  Against Constitutionalism.[2]

The book focuses on and defines constitutionalism “between legal thought and political practice […] as America’s unique contribution to modern constitutional thought”.[3] Loughlin, however, remains skeptical about the exact meaning of the concept – examined through the lens(es) of the Federalist Papers.[4] In the Preface of the book, he points out that “[t]he problem is that constitutionalism, though often extolled, is rarely defined. It certainly expresses a belief that order, freedom, and justice are best promoted in a regime whose main characteristics are defined by a founding text elevated above the ordinary cut and thrust of politics. Beyond that basic assumption, its meaning remains obscure.[5] He then turns to an enumeration of its content by taking on its ‘crucial elements’. In Loughlin’s view, these are “imposing curbs on the exercise of arbitrary power, advancing ‘the rule of law’, establishing a regime of limited government, and ensuring that the citizen’s basic rights are protected.[6] This basically squares away with the “European textbook” definition of content, which I provided above.

But how does then one end up arguing ‘against constitutionalism’?

Loughlin writes that the 18th-century roots of constitutionalism (mostly of American – and French – origin) – as a “purely modern concept[7] – were created in a revolutionary spirit, intent on overthrowing arbitrary (and in the French case absolutist) regimes in favor of “limited government and maximized individual liberty”. As opposed to this, he makes the argument that the theory and principle of constitutionalism is now used for state-building, developing into a philosophy of government, underpinning executive action.

Loughlin puts his finger on what I now call the ‘lip service problem’ (merely based on a wordcount of this expression in this context) by stating that ruling elites pay lip service to democracy but through referencing constitutionalism, in fact, they are “able to perpetuate their authority to rule”.[8] We can certainly appreciate that there is some truth to this. His point of view unveils that he argues against constitutionalism in this sense (as an ‘aberrant mode of governing’), and for constitutional democracy to be restored, the principle and theory of constitutionalism should be critically analyzed because – over time –  it did not remain an exclusively and “distinctively American experiment”.[9]

The first very interesting critical claim he makes is an identitarian one, and therefore interesting to scholars who work with the concept of constitution and identity, or even constitutional identity (both in the American and European sense). Loughlin posits that democracy (understood as a core element of constitutionalism) is transformed by how constitutionalism promotes collective self-government. Therefore, he argues that the “[d]emocracy is no longer to be conceived as an expression of the collective will of a people; it is reconfigured as an expression of the collective identity of a people and, critically, an identity that is permanently inscribed into the foundational principles of the constitution.[10]

This argument resonates very well with German approaches to the role of democracy in view of constitutional identity, when we consider certain debates in EU integration from the past years. Democracy being a foundation constitutional principle needs to be respected, and if e.g. EU institutions do not take necessary account of offering the chance to a Member State to adequately scrutinize certain EU legal acts, therefore this foundational principle of democracy is violated, i.e. we arrive at the violation of an identitarian element that is – in his words – ”permanently inscribed into the constitution” (i.e. part of constitutional identity as understood in many contemporary European debates, cf. the German Constitutional Court’s PSPP decision for one). (On this issue, further pieces have been published on this platform here, here, and here.)

Next up, Loughlin critically looks at the concept of the constitution and states that it has been transformed – over time – “from a political pact into a medium of societal self-organization,[11] and at the same time, he enumerates six features it still realizes. The constitution, as the “authoritative expression of the regime’s collective political identity”, in his view, creates a comprehensive, limited, and representative government (with a permanent governing framework), safeguarding individual liberty, which is “supervised by a judiciary charged with elaborating the requirements of public reason.”[12] The book then delves into distinctions between constitutionalism and constitutional government, describes the American project of constitutionalism after being done with European roots rather abruptly, but then returning to them post-WW2, offering a brief laudation of the German Basic Law. Loughlin argues that the Grundgesetz (German Basic Law) was quickly established “as the authoritative expression of the Federal Republic’s collective political identity.”[13] Then he moves on to assess postcolonial efforts of ‘transplanting constitutionalism’, focusing on India’s example. These two countries demonstrate, according to Loughlin, that when a “clean break with the past was required, the project of constitutionalism offered a path to the new world.[14] In another part of his chronological overview, he details an ‘Age of Constitutionalism’ (see Part III below), where ‘constitutionalization’ is mentioned as a key factor on many levels.

As for the Origins of Constitutionalism (Chapter 1), he examines the concept from early English common law, through Montesquieu, arriving at the modern Idea of the Constitution and Constitutional Authority.

Chapter 2, suggestively is titled The Ideology of Constitutionalism, and he makes the methodological argument that through constitutionalism “we shape a cluster of beliefs and cultural symbols into a meaningful arrangement, thereby making it available for purposive action”,[15] which makes it an ideology – on that, he agrees with Sartori but disagrees with him on many points. On this account, though, since we currently live in an era where European leaders and institutions also seem to use elements of constitutionalism as ideological weapons against certain Member States, I would like to call attention to the subchapter titled The Rule of Law and the Rechtsstaat, pointing to the fact that – between legal thought and political practice (i.e. as the main focus of the book is defined) – the rule of law is a highly ambiguous notion. Next, he tackles separation of powers, in the American and French mold, then sums up the limits of what he class “Enlightenment Constitutionalism”, in which he refers back to the Rule of Law and Rechtsstaat, too.

Chapter 3, The Constitution of What? investigates Loughlin’s argument that constitutionalism and therefore the constitution to which it binds relate to state theory (as a tool of state-building), and then looks at Sovereignty and the State Constitution deriving from said sovereign power.

Chapter 4, The Path to Ordo-Constitutionalism, starts out of current debates regarding the inflation of the administrative state (more simply put “government growth”), which in Loughlin’s view changes the state in a neo-liberal sense, as they were the ones to recognize that “free markets and individual liberty could be preserved only by vigilant governmental action, [therefore] they advocated a new role for the constitution, that of establishing an institutional order that could guarantee the maintenance of a well-functioning market system.”[16] This is what Loughlin calls ’advancing the philosophy of Ordo-constitutionalism’, in recognition of a new role for the constitution, due to the changing character of the state, which he examines in detail next – coming to the conclusion that the ‘era of big government’ (borrowed from President Clinton’s famous 1996 State of the Union speech) is not compatible with ‘reviving constitutionalism’ or at least it is to be a challenging exercise.

In the following, by describing what he calls the Constitution of Liberty, he arrives at presenting his assessment on ‘ordo-constitutionalism’, in the above economic sense, and talks about the importance of an economic constitution (also placed on German foundations), in which effort the state’s essential function (task) is mentioned as maintaining an institutional system for the well-functioning operation of the market system (in the ordo-liberal view). In his words, ordo-constitutionalism is a very popular model these days and it“postulates the establishment of a constitution that imposes duties on public authorities to safeguard the operation of the private market system. Its mantra is ’the free economy and the strong state’[17] – however, what he means by this is that the state should be constitutionally insulated from becoming an active power player in the economy (economic activity, to be exact.) On this note, I might add that many of our current debates regarding the information economy tackle the same issues regarding the role of the state and its essential functions in regulating commerce and industry under the guise of “digitalization” and the American and European regulatory approaches largely differ in this sense, especially regarding the room for maneuver that should be at the disposal of the state to regulate the market and therefore control the economy.[18]

Part II dissects the elements of constitutional democracy, focusing on constituent power, constitutional rights, and after all, constitutional democracy, while Part III begins with describing what Loughlin calls the Age of Constitutionalism.

In this Part III, Loughlin rebrands the Constitution as a ‘Civil Religion’, he addresses the role of the much-debated concept of Juristocracy, and arrives at the examination of the issue of Integration (of the political community) through Interpretation (by the Judiciary) – and its limits, delving into many aspects in this regard based on the Federalist Papers and seminal instances of SCOTUS case law from Marbury v. Madison to Dredd Scott, etc. as well as many European references. In the following, the writes about A New Species of Law, suggestively, looking at – among others – many Latin American examples of constitutionalism in a broader theoretical context, then shifting focus – in this same context – to a holistic view of emergency situations (and other special regimes).

In the subchapter The Concept of Constitutional Legality, he uses the term ‘invisible constitution’ in a way that needs some clarification from the point of view of a Hungarian scholar, such as the author of this review. In constitutional legal terms, ‘invisible constitution’ has a very specific meaning for Hungarian constitutionalism, as the notion (coined by the first post-Transition President of the Constitutional Court, László Sólyom, in 1990 through a concurring opinion as ‘láthatatlan alkotmány’ ) has become the ‘call-sign’ of judicial activism, describing the key role of a post-transition democratic institution in safeguarding constitutional rights, stabilizing constitutional democracy and the rule of law through interpretation of the constitution and through engagement in ‘gap-filling’ where either the letter of the law or its application was absent or faulty. More exactly, in Decision 23/1990 (X.31.) AB, the Hungarian Constitutional Court declared capital punishment unconstitutional. In a concurring opinion, the then President, László Sólyom, famously wrote the following opinion: “The Constitutional Court has to create its own interpretation on the right to life. In this context, the starting point is the whole Constitution. The Constitutional Court must continue its effort to explain the theoretical bases of the Constitution and the rights included in it and to form a coherent system with its decisions in order to provide a reliable standard of constitutionality – an ‘invisible Constitution’ – beyond the Constitution, which is often amended nowadays [in 1990] by current political interests; and because this ’invisible Constitution probably will not conflict with the new Constitution to be established or with future Constitutions. The Constitutional Court enjoys freedom in this process as long as it remains within the framework of the concept of constitutionality.

Loughlin uses the same expression slightly differently, i.e. to mean that a new species of law emerges, promoting this invisible constitution, meaning that the written constitution is no longer a system of rules, rather a set of abstract principles, articulating the values of the social order. Obviously, the conductor of this transformation is the judiciary as the authoritative interpreter of the constitutional text, so in this sense, it aligns with Sólyom’s arguments for Hungary, but this brings with it the problems, according to Loughlin, that the historical link of legitimacy is broken by the fact that this way the constitution ceases to derive its authority from the constituent power of the people, exposing the constitution, which then „is treated as an order of values that evolves as social conditions change.”[19]

He will return to this argument at many turns throughout the book, as it is his overarching motive that legislatures drive constitutional democracies. Thus, naturally, Loughlin approaches breaking this link of legitimacy from another aspect as well, when he tackles the issue of legislature delegating broad mandates to executives “not only to deal with emergencies but also to act in a general regulatory capacity, and the principle of ‘proportionate empowering’ confers wide latitude to take whatever action is deemed necessary. Through a wide range of mechanisms, governments now play a major role in enacting, shaping, interpreting, implementing, and reviewing legal rules and determining the government’s own legal responsibilities.”[20] In this situation, what we in Europe call fusion of powers, we find ourselves in a rabbit hole that fits squarely into the intended focus of the book: between legal thought and political practice.

In the chapter on The Struggle for Recognition, Loughlin asks the question whether the political struggles of the present take away the ‘ideological power’ of constitutionalism, by taming democracy and realigning it with the fundamental ideas and principles thereof. In this process, Loughlin looks at two different dynamics of constitutionalism (an inclusive and an exclusive one) and turns this inquiry toward international law, which he calls The Cosmopolitan Project in reference to the idea of ‘cosmopolitan constitutionalism’, which he traces critically through Kant, Habermas, and Kumm. Loughlin then ties the bow on his bouquet of arguments neatly by channeling ‘ordo-constitutionalism’ back into the debate branded as ‘a global project’,[21] but talks separately about constitutionalism with a cosmopolitan purpose.[22]

Eventually, he draws his conclusion: “Cosmopolitan constitutionalism ushers in a world of markets, voluntary associations, and service agencies in networks that transcend national boundaries. It is a constitutional discourse for a world of interacting orders and permeable boundaries. To the extent that it conjures a world without boundaries, constitutionalism with a cosmopolitan purpose envisages a world if not quite yet without states, then perhaps without politics, and certainly without the pivotal significance of democratic practices.”[23]

This is a very astute observation regarding the challenges presented by the book in many parts. Loughlin reflects on key debates of our times such as the changing nature and function of constitutions, the separation and fusion of powers, executive overreach, “government growth” and the administrative state. He adds to this his remarks on juristocracy and the role of (constitutional) courts, populism, or ‘the invisible constitution’, upholding abstract principles with universal scope and influence, transforming constitutionalism into a ruling philosophy.[24] He then turns this train of thought into a counter-argument against contemporary workings of international institutions that also lack democratic authorization, i.e. the link of legitimacy tied back to the constituent power of the people. In Loughlin’s view, the primary driving force of a constitutional democracy is the democratically elected legislature, that is – he posits – continually exposed to losing its power to the judiciary and the executive.

In the end, Loughlin reverts to the list of six rigorous criteria (mentioned in the introduction) to qualify contemporary constitutional democracies and argues that regardless of their form of government and state structure, few of them would meet the criteria.[25] His final conclusion also defines his argument against constitutionalism, being that it “rests on the claim that [constitutionalism, as understood and described in the book] institutes a system of rule that is unlikely to carry popular support, without which only increasing authoritarianism and countervailing reaction will result.”[26]

I wholeheartedly offer ‘Against Constitutionalism’ to everyone who is interested in an Anglo-Saxon approach to how the paradigm of constitutionalism has shifted over time, how it should function and what should it mean today, and how it should affect our daily lives.

[1] Thomas S. Kuhn (1962, 1970): The Structure of Scientific Revolutions. Second Edition, enlarged. University of Chicago Press, p. viii; see also: István Stumpf: Paradigm-Shift in Constitutionalism. Gondolat, Budapest, 2022

[2] Martin Loughlin: Against Constitutionalism. Harvard University Press, 2022. (For a review on the book in Hungarian, see: Csapodi, Márton: Martin Loughlin – Against Constitutionalism. Könyvismertetés. Iustum Aequum Salutare. (1)2023:197-206.)

[3] Ibid., p. 22

[4] In detail: Ibid, pp. 2-6.

[5] Ibid, p. ix

[6] Ibid.

[7] Ibid, p. 2

[8] Ibid, p. x

[9] Ibid, p. 22. In this spirit, he later talks about transplanting constitutionalism into other legal systems all over the world as well.

[10] Ibid, pp. 5-6.

[11] Ibid, p. 6

[12] Ibid., pp. 6-7

[13] Ibid, p. 14

[14] Ibid, p. 16

[15] Ibid., p. 38.

[16] Ibid., p. 63.

[17] Ibid., p. 73.

[18] See: Márton Sulyok: How to Tame the Beast? Toward a Regulation Revolution in the Digital Platform Economy. In. Zoltán Ács et al.: The Entrepreneurial Ecosystem: A Global Perspective. Palgrave Macmillan, 2023, pp. 329-362.

[19] Loughlin, 2022, p. 161

[20] Ibid., p. 162-163

[21] Ibid., pp. 183-187

[22] Ibid., pp. 188-190

[23] Ibid., p. 190

[24] This last part of the argument is on p. 191

[25] Ibid., p. 195

[26] Ibid., p. 202

Márton Sulyok JD, LLM, PhD is an Asst. Professor (Senior Lecturer) in Constitutional Law and Human Rights at the Institute of Public Law, University of Szeged in Hungary. JD (2007, Szeged), LLM in Anglo-Saxon Law and English Legal Translation (2012, Szeged), PhD in Law and Political Sciences (2017, Szeged). Certified as an American Legal Expert (since 2009) in a joint training program of the University of Toledo College of Law and the University of Szeged Faculty of Law and Political Sciences. Currently, Prof. Sulyok is the Head of the Public Law Center at Mathias Corvinus Collegium (MCC) in Budapest, Hungary. Previously, he sat on the Management Board of the EU Fundamental Rights Agency (Vienna, 2015-2020), and currently he represents MCC on the Board of Directors of the European Public Law Organization (Athens, Legraina, Greece).

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