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Varieties of Constitutionalism (I·CON 14, Issue 1: Editorial)

Mark Tushnet, Harvard Law School

Political scientist Diana Kapiszewski has begun a study of the rise of what she calls “adjectival constitutionalism,” the study of constitutionalisms identified by some modifier. That there are varieties of constitutionalism seems undeniable. Outlining a preliminary taxonomy may be useful to scholars in the field, in helping us organize our thinking—and perhaps in provoking us to think about constitutionalism as such, and what our field of study encompasses. My own goal in this enterprise is somewhat disruptive. By offering a taxonomy of constitutionalisms, I hope to unsettle the view that liberal constitutionalism simply is constitutionalism, and that all other varieties are defective. Not only do other constitutionalisms exist, I believe, but some of them are as normatively defensible, under appropriate circumstances, as liberal constitutionalism is (under appropriate circumstances as well).

Simple examples of adjectival constitutionalism are studies of regional constitutionalism: Latin American constitutionalism, East Asian constitutionalism, and the like. Some of the reasons for the existence of such studies lie in organizational characteristics of the field. Simply put, it is relatively easy to gather (and find funding for) a conference of specialist scholars of nations within a region: They can meet in some convenient location, and they are likely to work in the same or related languages, for example. Yet, precisely what constitutions within a region have in common—why they should be grouped under a single adjective—is open to question. That we can observe commonalities seems unquestionable, but the primary explanation for them may be the mundane process of diffusion of ideas and institutions. Studies of policy diffusion lead to the conclusion (slightly overstated here for effect) that the best predictor of whether a specific nation has some distinct institution is whether its closest neighbor has the same institution. When we observe regional commonalities, then, we may learn something about the general processes of policy diffusion, but not about the region itself.

Yet, there may be something to the idea of regional constitutionalism. At this point in our understanding, for example, it may be reasonable to posit that constitutions within a region are shaped by the existence of a regional hegemon if there is one: the United States for Latin America, India for South Asia, China for East Asia. The “shaping” can take the form of influence, as in the prevalence of presidentialism in Latin America and the diffusion of the “basic structure” doctrine in South Asia, or aversion, to use Kim Lane Scheppele’s term, as may be the case in East Asia and to some extent in Latin America and its constitutions’ recent ambivalence about neo-liberalism and neo-colonialism.

Regional constitutionalisms are of course identified by geography, but the heartland of adjectival constitutionalism is conceptual. The study of constitutionalism in comparative constitutional studies has centered on liberal constitutionalism, to the point where many studies seem to assume that the field is dichotomized between generally liberal constitutionalist nations and authoritarian nations, with some concessions about the possibility that there are varieties of liberal constitutionalism and about the existence of what political scientists have called semi-authoritarian or competitive authoritarian regimes. Perhaps a richer taxonomy of varieties of constitutionalism would be useful.

Begin with liberal constitutionalism, understood in political-theory terms as resting on liberalism as a theory of the right, not the good. Its components are adherence to the minimum requirements of the rule of law, reasonable elicitation of ongoing consent to governance (“free and fair elections,” but other mechanisms as well), and a reasonable level of general freedoms. Over the past several decades we have learned how to subdivide liberal constitutionalism. There is political constitutionalism, identified by Richard Bellamy and others, theorizing parliamentary supremacy as a form of limited government. Alternatively, there is judicial constitutionalism (sometimes misleadingly referred to as “legal” constitutionalism), in which courts enforce limitations on government power. And within judicial constitutionalism we find strong-form review and judicial supremacy, and weak-form or dialogic review. Studies of these varieties of liberal constitutionalism have identified the conditions under which each may be normatively preferable or at least acceptable, and we are beginning to get some sense of the historical and political conditions under which each form emerges and becomes a stable characteristic of a liberal political order.

Liberal constitutionalism can take many institutional forms and in particular can vary significantly in the specification of rights such as equality and free expression. Often these variants are readily understood as resting on reasonable disagreements about the particular content of generally accepted concepts, as in the disagreements within liberal constitutional systems over issues such as the regulation of hate speech and the permissibility of affirmative or positive discrimination.

Sometimes, though, we can identify systems that are identifiably liberal rather than authoritarian, and yet seem to particularize rights and freedoms in ways that lie outside the range of reasonable disagreement. These may on occasion be matters of historical contingency, as with limitations on the right to vote in nineteenth century Great Britain and twentieth century Switzerland. Yet some may be genuine “shortfalls,” reasonably enduring “failings” of a generally liberal constitutionalism to realize some of liberal constitutionalism’s normative commitments. The sharp restrictions the United States Supreme Court has placed on legislative efforts to regulate campaign finance may be a (controversial) example. Such a shortfall may be self-stabilizing in ways that ought to lead us to identify the system as neither liberal nor illiberal nor authoritarian. These self-stabilized systems might be good candidates for productive thinking about the conditions under which constitutional replacements are desirable even with respect to roughly liberal constitutions.

Recent scholarship on abusive constitutionalism might be understood as dealing with another possibility associated with liberal constitutionalism. Abusive constitutionalism is the use of liberal constitutional forms to achieve non-liberal or illiberal constitutional goals. Abusive constitutionalism can be thought of as an instantiation of the so-called paradox of liberal tolerance, its requirement that the regime tolerate political advocacy that, if successful, would abolish liberal tolerance. One response to this paradox has been the theory of militant democracy, but that theory, notably, is sometimes characterized as using prima facie illiberal measures to defend liberal constitutionalism against its enemies. Perhaps self-stabilizing shortfalls and abusive constitutionalism are best understood as continuous with, or as categories within, liberal constitutionalism.

Social-democratic constitutionalism can be understood either as a variant of liberal constitutionalism or as an alternative to it. The case for seeing social-democratic constitutionalism as an alternative to liberal constitutionalism was made by Carl Schmitt within constitutional theory and Robert Nozick within political theory. For both, realizing the distributive goals of social-democratic constitutionalism requires “violations” of classical liberal rights. That is the burden of Nozick’s famous example of Wilt Chamberlain and his more general critique of patterned accounts of distributive justice—accounts that are central to social-democratic constitutionalism.

We could simply accept that social-democratic constitutionalism is not compatible with liberal constitutionalism across an important range of issues. Alternatively, we might try to reduce the tension that Schmitt and Nozick identify. For example, weak-form and dialogic forms of constitutional review might do so. Further, proportionality doctrines can temper the characterization of actions in support of social-democratic goals as violations of liberal rights. Instead, the discourse of proportionality characterizes such actions as “infringements” of those rights, allowing for the possibility that infringements can be justified. One question that has surfaced in recent discussions of proportionality is whether or the extent to which it is an appropriate mode of analysis when legislation is challenged as violating core liberal rights such as the right to (“merely”) criticize government policy or the right to equal treatment without regard to race or gender. These are “easy cases” for liberal constitutionalism, at least in concept, but may be more difficult ones for proportionality analysis, which—at least as I read the literature, and simplifying for purposes of this editorial—tends to stipulate that proportionality analysis provides an obvious and obviously acceptable answer to these cases.

An additional possibility is what I think of as joint optimization—achieving the highest degree of realization of classical liberal rights as is compatible with achieving the highest degree of realization of social-democratic rights and conversely. In this connection I have thought that well-established measures of constitutionalism, such as Freedom House score and the Polity index, which are heavily weighted in favor of classical liberal rights, might be supplemented with measures of socio-economic rights. I believe that there are some relatively informal rankings that attempt to take both generations of rights into account, and perhaps there are more systematic efforts of which I am unaware.

Finally, there are some categories of what at the moment seems best described as generically non-liberal constitutionalism. My own work on authoritarian constitutionalism identifies one. Another, not surprisingly, might be third-generation constitutions, for nations understood as plurinational (to use John Tierney’s term, which he distinguishes from multinational), committed to rights residing in communities rather than individuals (especially indigenous communities), with rights to language and rights to or in the environment. Constitutions recently adopted in Ecuador and Bolivia might be used as suggestive examples. As with social-democratic constitutions, these third-generation constitutions might be incompatible with some understandings of liberal constitutionalism and, in addition, with some understandings of social-democratic constitutionalism. Brian Barry’s critique of cultural diversity as a policy can be understood in this light, as can controversies that regularly arise when indigenous practices are said to conflict with liberal commitments to gender equality. Here too the idea of joint optimization, now along three dimensions, might be useful.

Islamic constitutionalism of a certain sort might be another variety of non-liberal constitutionalism. Several decades have scholarship have established, at least to my satisfaction, that there are forms of constitutionalism properly characterized as Islamic that are compatible with liberalism. And, of course, there is, I believe, a widely held view that some forms of Islamic constitutionalism are incompatible with liberalism (though this position, it seems to me, is more commonly asserted than defended, particularly in characterizing the forms as constitutional in the first instance). More interesting is the possibility of an Islamic constitutionalism with some clearly non-liberal elements—particularly, I would think, in connection with some aspects of religion such restrictions on conversion away from Islam—that would still be constitutionalist generally. My sense is that the field of comparative constitutional studies would benefit from attending to that possibility more than it has to this point.

At the far end of the spectrum—or, if we have a two- or three-dimensional sense of constitutionalism, outlying on all dimensions—is illiberal constitutionalism. We have one extremely helpful concept available to think about illiberal constitutionalism—the constitution as a map of power relations within the illiberal regime. Studying these power maps involves studying constitutions in authoritarian nations, but perhaps not studying constitutionalism there. My sense is that political scientists more than legal scholars study illiberal constitutional regimes, perhaps because legal scholars understand that “law” does not limit power in such regimes. Yet, even in quite authoritarian regimes political scientists have found informal, negotiable, changing distributions of power among individuals and institutions. Students of liberal constitutionalism have the notion of constitutional conventions, in the British sense, at hand, and perhaps we can contribute to understanding some illiberal constitutional regimes in terms of conventions.

The foregoing is, as indicated at the outset, only a preliminary taxonomy. I might well be mistaken in including some components—for example, in suggesting that authoritarian constitutionalism is a variety of constitutionalism. I welcome suggestions for additional revisions—deletions, or additional components in a more complete taxonomy. For all the tentativeness of this essay, though, I do want to end on a strong positive note. Examining varieties of constitutionalism is, in my view, an important enterprise for scholars in our field.

                                                                                                Mark Tushnet

In this Issue

This issue opens with an article by William Phelan on the “Dairy Products” Decision, a 1964 decision in which the European Court of Justice marked the fundamental distinction between EU law and public international law. Phelan puts forward historical evidence to argue that there were strong links between that case and two other milestone cases: van Gend en Loos and Costa v. ENEL. In the next contribution, Michèle Finck examines the concept of human dignity from a comparative perspective. She finds that this concept has emerged as a justificatory tool, despite the fact that it lacks a fixed content in most legal orders.

The issue continues with a symposium on “The Changing Landscape of Australasian Constitutionalism”. It opens with an Introduction by Claudia Geiringer, Cheryl Saunders and Adrienne Stone. Elisa Arcioni and Adrienne Stone, Rosalind Dixon, Janet McLean, Andrew Geddis, Claudia Geiringer and Paul Rishworth then explore different aspects of constitutionalism in Australasia (the term here refers to Australia and New Zealand although it technically also incorporates New Guinea and neighboring islands).

Our ICON Debate! section in this issue centers around an article by Cormac Mac Amhlaigh on institutional political constitutionalism. Adrienne Stone and Richard Bellamy respond and Mac Amhlaigh continues the discussion in a Rejoinder. Finally, our Critical Review of Governance rubric includes two articles on privacy that are sure to provoke some discussion. David Cole and Federico Fabbrini examine possible ways for the EU and the US to bridge the transatlantic divide on privacy in the digital era. Stephen Schulhofer argues that a multilateral agreement on safeguards would weaken privacy protection. According to Schulhofer, privacy is better served in this context by “American exceptionalism” and by leaving nations free to go their own way.

GdeB and JHHW

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Published on April 14, 2016
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