Cloudy Horizon

If constitutionalism​ is accorded its natural content as a set of rules delineating and governing the exercise of state power, being for it or against it seems as inconsequential as being for or against the weather. Even the worst-governed states have a constitution in this sense. When, therefore, Martin Loughlin characterises constitutionalism as ‘a theory concerning the role’ of ‘the documentary constitution’, resting its authority on ‘two great pillars’, representative government and the separation of governmental powers, he is consciously adding a good deal. He is also leaving out quite a lot.

Imagine, if you can, that a candidate for a major public office in the UK has helped to secure a substantial personal loan for the government minister on whose decision the appointment depends. Assume, too, that openly declaring what has gone on (more correctly characterised as a convergence of interests than as a conflict), far from sanitising the process and outcome, could give rise to a legal challenge for apparent bias. Despite the absence of a written constitution, such an issue is constitutional as well as legal. It’s through the general law that the UK’s constitution is accessed; but even if the constitution were put in writing, it’s highly improbable that such questions as administrative bias would be directly addressed by it. To judge the probity of the arrangement you would still need courts of law to join the constitutional dots. Neither representative government nor the separation of powers can resolve the question by itself; but each is a necessary condition of adjudication, the former if the law turns out to need changing, the latter to reaffirm that executive government is answerable on issues of legality to the judicial power.

What a Trump-engineered majority on the US Supreme Court is now doing with this power is a separate scandal; but arguably Loughlin does it less than justice by characterising the resulting culture as a ‘juristocracy’. There have been times, notably the era of the Warren court, when the Supreme Court has saved America from itself. The perennial problem of written constitutions is that they contain no slip road enabling escape when – as in Roe v. Wade – an issue is presented on which the text is silent or opaque. In principle the constitutional court should refuse to entertain such a case and say it’s not constitutional business; but that may often be to leave standing an objectionable statute or an erroneous decision of a lower court. Instead, the US Supreme Court hangs its preferred solution on whatever constitutional peg it can find or devise. It was by this process, in the unsurprising absence of anything in the US constitution about abortion, that Roe v. Wade lived and, in Dobbs v. Jackson Women’s Health Organisation, has now perished.

So it’s not actually constitutionalism Loughlin is against. He understandably mistrusts what you could call simple constitutionalism: the bare reliance on a constitutional text as a guarantee of political and judicial probity in the governance of the state. But his principal target is the modern expansion of constitutionalism from a charter of limited government into ‘a distinctive, ambitious and wide-ranging philosophy of governing’. He characterises the post-1989 epoch as the age of constitutionalism, demanding documentary constitutions (‘a purely modern invention’ – surely not) that provide for representative government and a formal separation of the principal powers of the state. This epoch belongs, Loughlin suggests, to a second phase of the modernity which originated in the 18th century and which ‘by extending its influence across much of the world, marks the first phase of universal history’.

This is a big claim, which he seeks to defend to the extent that it explains the world that has been emerging since 1989 – the world of neoliberalism which recognised that ‘markets, far from being self-regulating organisms, required strong governmental institutions.’ It is to this that he ascribes the modern growth of constitutionalism, not only within states but between them. For the latter, he points to such bodies as the IMF, the World Bank, the WTO and the UN, as well as the major regional trading blocs. For the former, he turns to his critique of contemporary constitutionalism. The liberal promise of liberty, equality and solidarity, he suggests, has now been amplified to embrace the protection of property and market institutions.

In these and other ways, Loughlin contends, constitutionalism has expanded since the mid-20th century from a well-meaning but antique project of limited government into ‘a novel concept of constitutional legality’. Driven by ‘a rights revolution that dramatically strengthens the power of the judiciary’, this revolution fuses legal with political reason and ‘is rapidly acquiring universal influence’. Constitutionalism, he argues, is morphing into a set of principles that no longer claim the status of self-evident truths but underpin and are tailored to a higher-order set of economic and political values. This book, he says, ‘makes the case for constitutional democracy against constitutionalism’. But is this a true antithesis?

For much of the book Loughlin seems to be sanguine about the direction history is taking. He presents India and Germany as postwar exemplars of a newly omnicompetent constitutional jurisdiction that others, notably in Latin America, have followed. Events in Chile must have come too late for inclusion, apart from a note that the Pinochet regime’s constitution, adopted by plebiscite in 1980, is still in force albeit under review. But what has now happened there is instructive. A new constitution drawn up by a widely representative convention was in 2022 decisively rejected in a referendum, not because of any nostalgia for the Pinochet years (though there is some), but because, apparently, it was insufficiently radical for the left and too radical for the right. Chile’s democracy consequently continues to function under a largely cosmetic constitution introduced by a military dictatorship. But there is more than one moral to this story. One has to be that if constitutions are to represent a fresh start for a society, they cannot simply be adopted. They require a wide but intangible impetus – what is sometimes called a constitutional moment – that cannot be willed or voted into being. When in 1791 France’s Constituent Assembly declared that ‘there is no longer any nobility or peerage nor hereditary distinctions … and neither for any section of the nation nor for any individual can there be any exemption from France’s common law,’ it was not mouthing conventional pieties (as it would have been a century later): in what was recognisably a constitutional moment it was conducting a revolution. Much the same can be said, though their circumstances were immeasurably different, of the American Declaration of Independence and the constitution that followed it.

Somewhere in his conspectus Loughlin has to find space for Albert Venn Dicey. It was the aptly named Dicey who asserted that in England ‘every official, from the prime minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.’ This, Dicey asserted, was the meaning of the rule of law, a concept unknown to Napoleonic systems, which privileged and insulated public administration, but which the English judges had made the basis of our constitution. Dicey’s axiom, however, that officials and citizens alike may not act without legal justification, is either a truism or a fallacy – a truism if all it means is that no one is entitled to break the law, a fallacy if it suggests that the law is the same for citizen and official alike. The constable’s oath requires the constable to prevent, detect and investigate crime, and permits the use of limited force to keep the peace. Both the constable and the tax collector, once armed with a warrant, have powers of entry, search and seizure. The prime minister alone can call on the monarch to prorogue Parliament. While the individual has none of these powers and so cannot be accused of abusing them, the acts of office-holders (including, as recent events have reminded us, prime ministers) may be open to parliamentary or legal sanction if they are abused.

One thing about which there can be no sensible quarrel is that the US constitution isn’t a model for anyone else. Loughlin cites Harold Laski’s description of it as ‘the worst instrument of government that the mind of man has so far conceived’. The fatuity of the electoral college system, which allows the loser in the tally of individual votes to secure the presidency, is only one of a clutch of historical anomalies it has cemented in place. Among the necessary things not to be found in the constitution is the Supreme Court’s power, enunciated by Chief Justice Marshall in 1803, to hand down binding interpretations of that constitution and to strike down offending state or congressional legislation. The court in turn has allowed presidents to deploy imported monarchical powers such as the prerogative of mercy and the power to freeze legislation.

Loughlin mentions the constitutional scholar Bruce Ackerman’s account of having been badgered by the State Department since 1989 ‘to serve on delegations to advise one or another country on its constitutional transition to democracy’. Ackerman wasn’t alone. In at least one Balkan state, where I found myself explaining to fellow judges why letting the police knock suspects about was not a legitimate way of obtaining confessions, and where elections were regarded principally as an opportunity for the winning party to repopulate the bench with its own judges, I was agreeably surprised to hear my American counterpart advising firmly against using the US constitution as a model. For American liberals there is only Hilaire Belloc’s cautionary advice to ‘keep a-hold of Nurse, for fear of finding something worse.’ If this means standing up for constitutionalism, or at least for the constitution, and putting up with judicial bias in its interpretation and application, it has to be because of the nature of the alternatives to this in the land of Donald Trump.

While liberal critiques tack between reforming the US constitution and attempting to achieve progress within it, it remains true that the nine justices in critical respects govern the country. Few constitutional lawyers would attempt to generalise or extrapolate from this set-up to other states and other constitutions. These have their own problems: hence Loughlin’s tour d’horizon. Wherever he invites us to look, however, the horizon is far from cloudless. India’s constitution may be a formal model, as Loughlin suggests, but what Modi’s Bharatiya Janata Party has been able to do within it is symptomatic of a universal problem of which Germany in 1932-33 is only the most acute example, namely what can happen when the democratic process itself concentrates state power in anti-democratic hands. The collapse of state into party is barely the beginning.

Israel,​ to which Loughlin also devotes attention, resembles the UK in having no written constitution. In its place Israel recognises a group of statutes it calls its Basic Laws, which have at least allowed its Supreme Court to rule on the constitutionality of some of the Knesset’s measures. But there is a profound irony, for UK lawyers at least, in the reforms now being demanded by the ultra-nationalist coalition which is keeping Benjamin Netanyahu in office (and out of the dock). These include shifting judicial appointments and promotions, at present made by a nine-member committee drawn from government, parliament, bench and bar, into the hands of politicians; restricting the power of the courts to declare legislation incompatible with the Basic Laws; and reducing the advice given by the attorney general from its present near oracular status to that of a contestable opinion. The irony is that the UK, with a constitution composed of common law, statute and convention, has an attorney general who is anomalously both the government’s independent legal adviser and one of its ministers (in contrast to, say, the Indian constitution, which requires the attorney general to give his or her legal advice to the legislature in public). Until the creation in 2006 of a judicial appointments commission, all UK judicial appointments were made in private by a politician, the lord chancellor. So far as concerns the possibility of judges striking down constitutionally offensive primary legislation, the UK Supreme Court earlier this year reiterated: ‘The most fundamental rule of UK constitutional law is that Parliament, or more precisely the Crown in Parliament, is sovereign and that legislation enacted by Parliament is supreme’ – a rule that would empower the Knesset at any time to do whatever it wants to the Basic Laws, without any need for new constitutional powers.

Why then should we be worried – as we undoubtedly should be – about reforms that will approximate Israel’s constitution to what is, or was until recently, that of the UK? The reason is that its promoter and beneficiary will be an ultra-nationalist coalition that wants to clear the legal ground for solving what its supporters continue to refer to as the Arab problem: more extensive arbitrary arrests, killings and house demolitions, and the eventual annexation of the West Bank as well as East Jerusalem. Israel’s apartheid system will be secure once the Basic Laws, which declare Israel a ‘Jewish and democratic state’ in which ‘the Jewish people have a unique right to self-determination’, are placed definitively beyond the reach of the courts; the attorney general’s advice to government ceases to carry any particular weight; and the judges fear for their jobs if they upset the government.

Loughlin rightly asserts that in Israel ‘exclusion exists at the normative core of its constitution,’ and remarks by way of contrast that in India ‘exclusion is attributable to social facts rather than to the constitution.’ Apologists for the Israeli coalition, however, say very much the same as apologists for the BJP: the separateness of the underprivileged is simply a social fact. What both omit is the fact, in itself neither social nor constitutional, that in both states a democratic process has put in power an aggressively sectarian regime that the country’s superior courts can seemingly do little to control.

Who can say with confidence that such things couldn’t happen here? This is now a worldwide problem to which neither representative government nor the formal separation of powers provides an answer. Indeed the first of these may well be part of the problem, while the second requires a measure of vigilance not all judicial systems can offer. Democracy as an ideal may well have the strengths, such as public reason, memorably ascribed to it by Amartya Sen in The Idea of Justice (2009), but as Sen recognises, considerably more is needed to make it flameproof. It would be naive to ignore the vulnerability of an organic constitution such as the UK’s to capture or erosion from within, when government contempt for both constitutional propriety and legality is barely disguised.

The dynamic that mainly concerns Loughlin, however, is not quite the same. ‘Is constitutional democracy a 20th-century phenomenon whose time has passed?’ he asks. He answers that this is at least ‘the view of cosmopolitans who believe that the second phase of modernity has demolished the foundations of modern state-based constitutional democracy’. Invisible power, he concludes, ‘has now become a more pervasive phenomenon even less susceptible to political accountability’. Constitutionalism, he argues, far from controlling it, has given legitimacy to a system ‘that is no longer the project of a people and no longer subject to popular control’. It brings in its wake ‘a new species of law’ which ‘is itself a new type of invisible power’. To dismiss this as both too abstract and too categorical – as I think many would – may be to overlook the different but related question whether the decline of democracy is a cause or an effect of dependence on constitutions. Is constitutionalism really the culprit?