PART III
Chapter 8
ACCORDING to the precepts of classical constitutionalism, the main purpose of the constitution is to establish a comprehensive scheme of limited government. However, this innovation was assumed to have been brought about not by some social contract but by the workings of certain natural laws of social development that bound us to interests we hold in common. Consequently, the crucial distinction in constitutional thought was not between the state of nature and civil order but between society and government. Since it was society rather than government that elevated mankind, it was assumed that society would replace the state as the representation of unity. The constitution was therefore devised as a method that could protect the workings of the natural laws of an emerging commercial society from undue governmental interference. Public powers must be constrained so that private freedoms can flourish.
Were these assumptions well founded? G. W. F. Hegel maintains that the rise of civil society driven by the laws of political economy advanced a purely formal concept of freedom that would only fuel competition and conflict and reinforce existing inequalities. Concerned mainly with “the security and protection of property and personal freedom,” civil society could not replace the state’s rationale of achieving objective freedom. Once civil society is left to operate according to its own laws, he surmises, the need for public controls “to diminish the danger of upheavals arising from clashing interests” will become ever more urgent.1
Hegel’s perception that the operation of the modern laws of political economy does not lead to a diminished role for government has proved sound. But with what constitutional implications? Once governmental responsibilities significantly expanded, it was evident that the constitution could not function according to the presuppositions of classical constitutionalism. The expansion of civil society together with the emergence of democracy combined to form a regime that releases social power at the same time as it extends the nature, scale, and range of governmental power. The critical challenge was whether the constitution could establish a framework that regulates not just government but also society.
As explained in Part I, this challenge has been obscured by ambiguity in the concept of the constitution. Alongside the modern constitution, which establishes the framework of government, the traditional idea of the constitution as an expression of a regime’s customary practices and its people’s identity remained influential. With continuing processes of individualization, pluralization, fragmentation, and increasing functional differentiation, however, the authority of many of these traditional networks of solidarity was being eroded. To maintain social integration, then, it became necessary to place ever greater reliance on more formal systems. And at this critical moment, the constitution acquired a new responsibility.
The constitution was required to extend beyond its original role of establishing a comprehensive scheme of limited government to provide a symbolic representation of collective unity. Once divided between the formal constitution of government and the material constitution of the state, in late modernity these legal and social functions became dedifferentiated. To maintain the authority of government, the constitution was also obliged to represent society. In the age of constitutionalism, the constitution’s critical task was to integrate two divergent roles: to regulate the system of government and to provide the symbolic representation of a society.
The Constitution as Instrument and Symbol
Modern societies are integrated both systemically and socially. Systemic integration is achieved through mechanisms like markets and governmental institutions that regulate private actions and provide public goods. Social integration is achieved by upholding traditions and common values. But is the constitution up to the task of moving beyond its original tasks of contributing to system integration by regulating governmental institutions and advancing social integration by expressing common values? The answer depends on whether it is simply an instrument for collective decision-making or if it can also become a symbol of social unity.
As an instrument, the constitution organizes a set of mechanisms for making authoritative collective decisions, thereby contributing to the systemic integration of the regime. It formulates rules that establish and limit the powers of public bodies and render these bodies accountable. It ensures that governmental power will be made regular and predictable, offering citizens some assurance in their dealings with public bodies and providing redress should expectations be confounded. In these respects, the constitution incorporates a set of precommitment techniques that help to integrate the functionally differentiated subsystems of modern society.2
Once the constitution has established its authority as a system of decision-making and dispute resolution, it acquires the levels of trust needed to sustain social cohesion. Having established its normative authority, the constitution could possibly take on the symbolic role of expressing the nation’s sense of collective identity. Yet this is a latent potential, not least because, as Hans Vorländer notes, “what this integration capacity rests on, what its basis, its objective and its mechanisms are, remains entirely unclear.”3 The enactment of a constitution is never sufficient to ensure its efficacy because efficacy depends on “constitutional reality.”4 Whether the constitution can acquire general symbolic importance is assumed to depend on social and cultural factors that lie beyond the realm of law.
It is possible, then, for a constitution to establish its normative authority, its legal efficacy, but still lack real influence over the maintenance of societal integration. This is because, as the Weimar jurist Rudolf Smend argued, integration through the inculcation of common values is achieved as much through the veneration of flags, anthems, and pledges of allegiance as by laws and institutions of government.5 But herein lies the problem we have already identified: national solidarity, common religion, shared history, and uniform culture are the factors on which nation-states might have sought to build their authority but seem increasingly no longer to have. And that is why we turn to the constitution not just as an instrument but as a symbol of the values on which we might rebuild social integration in a secular, ahistorical, culturally heterogeneous society.
This has become a pressing issue in an era when many states, having broken with dictatorships, racial division, and communist rule, seek to reconstitute their regimes in circumstances when a return to traditional values as symbols of common identity is not possible. Is the modern constitution up to this formidable task? The question is addressed by considering the experience of two regimes in which the constitution has played a decisive role in promoting social integration.
The Constitution as American Myth
Since its adoption in 1787–1791, the US Constitution has been amended only seventeen times, and today it is regarded as being fixed and permanent. Its remarkable achievement is to have maintained its standing as an expression of the stability of the regime while accommodating major social, economic, and political change. It therefore seems to have succeeded in promoting not only systemic but also social integration. Its power of systemic integration is in large part attributable to the unique circumstances of its adoption. After all, the Constitution effectively established the state. That it now stands as a sacred icon of American national identity is a testament to its power of social integration.
Enlightenment thinkers recognized that establishing a system of modern republican government would necessitate bolstering the regime by promoting a civil religion, “not precisely as dogmas of Religion but as sentiments of sociability.”6 This message was fully endorsed by the American founders who, from the very beginning, positioned their founding documents—the Declaration of Independence alongside the federal Constitution—at the forefront of the nation’s collective memory. The date of signing of the former—4 July 1776—has ever since been commemorated as a national holiday, while the latter has been invested with enough symbolic capital to ensure its preeminent status within America’s civil religion. From the outset, the federal Constitution was touted as a work of genius, designed so that “only its great outlines should be marked, its important objects designated” because otherwise it “would never be understood by the public.”7 It was intended as a permanent framework because otherwise the system of government would be deprived of “that veneration which time bestows on everything.”8
At the time, however, there were many who believed that no document could ever fit the needs of future generations. Each generation, they asserted, must be free to order its own affairs. Of these, Jefferson was the most prominent. “Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched,” he wrote in 1816, and they “ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.”9 But Jefferson’s criticisms went unheeded. More typical are the sycophantic words of Supreme Court Justice William Johnson, who in 1823 wrote that the Constitution is “the most wonderful instrument ever drawn by the hand of man—there is a comprehension and precision that is unparalleled; and I can truly say that after having spent my life studying it, I daily find in it some new excellence.”10 By the mid-nineteenth century, Daniel Webster, the US secretary of state, could write that the Constitution “is all that gives us a national character.”11
Reverence for what Lincoln had called the “political religion” of the Constitution became an especially important unifying force following the rupture created by the Civil War of 1861–1865.12 This was a period in which many believe Lincoln had acted unconstitutionally. The rupture was so severe that historians maintain that the resulting constitutional amendments (the thirteenth to fifteenth) established what was in effect a new constitution. The first had been predicated on federal union and recognition of slavery, and the second was based on the expanding power of national government and the status of individual rights.13 Yet, this dramatic change is masked by the brilliant rhetoric of Lincoln’s Gettysburg Address. “Lincoln’s own placing of the birth of the nation four-score-and-seven years before 1863,” notes Sanford Levinson, “itself announces that the genuine scriptural text of the new Israel is the Declaration of Independence.” The Constitution is reduced to “a merely instrumental means of attaining the scriptural vision.” At that moment, the Constitution was transformed from an instrument of government into an aspirational ideal. The “more perfect union” referred to in the Constitution’s preamble “is provided not by compliance with what occurs beneath the Preamble, but rather by achievement of the earlier vision of 1776.”14
Writing in the mid-1930s, Edward Corwin had argued that not only was almost every major innovation since the founding unconstitutional but that the Constitution had evolved to become “a symbol of distrust of the political process—a symbol of democracy’s fear of democracy.” And this “symbol of the many,” he concluded, has become “the instrument of the few, and all the better instrument for being such symbol.”15 Such claims, however, have since been submerged beneath a cacophony of voices suggesting that the Constitution’s sense of permanence is not founded on mere idolatry. Rather, argues Kathleen Sullivan, it is because the Constitution now expresses enduring values, including public confidence in the coherence of the basic constitutional structure, the maintenance of the boundary between law and politics to uphold the rule of law, and the safeguarding of the legitimacy of the Supreme Court in its interpretative role.16
Such an idealized conception of the Constitution now takes its place alongside the flag and the Declaration of Independence to form “the holy trinity” of America’s civil religion. In this guise, it fulfills the vital role of promoting social integration. Writing in the year of the Constitution’s bicentenary, Irving Kristol had complained that the work of so many constitutional scholars is unsatisfactory precisely because it fails to imbibe the spirit of this ideal Constitution.17 Judging from the volume of studies over the last thirty years, this is a deficiency American constitutional lawyers have more than rectified. Today, the most prominent of them spend prodigious energy in search of the elusive spirit of the Constitution.18 From among many, consider Jack Balkin’s book Constitutional Redemption.
Balkin’s thesis is that the legitimacy of the American Constitution depends on “our faith in the constitutional project and its future trajectory,” a faith that rests, in turn, on “the story that we tell ourselves about our country, about our constitutional project, and about our place within them.” Of the many stories that might be told—of progress, decline, stasis, injustices unremedied, loss, restoration, corruption, and redemption—each could yield a different constitutional interpretation. Balkin recognizes that the “great progressive narrative” could provide “a spur to improvement” but rejects it as a self-congratulatory distortion. At the same time, he also rejects the narrative of decline: William Lloyd Garrison may have rightly argued that in protecting slavery the Constitution was “a covenant with death” that would bring about its ruin, but for Balkin that “is the beginning of the story not its end.” Building on the argument of Robert Cover, another Yale scholar, he instead opts for a narrative of redemption, “not simply reform, but change that fulfils a promise of the past.” And central to that argument is the claim that “the Preamble to the Constitution sets a purpose that is never fully achieved but is our duty to achieve.”19
If the Constitution is an imperfect compromise reflecting the political circumstances of the time, for Balkin, the challenge is whether it can eventually be redeemed. Can the people “live up to the promises they give themselves” and “construct a Constitution worthy of respect”? Good design is important, but the critical factor is garnering people’s beliefs and commitment to engage them in the unfolding constitutional project. This requires faith that carries the danger of idolatry, but Balkin is more concerned about the form of idolatry that allows debates over the Constitution “to limit our moral imagination” such that the people “will confuse what is just with what is constitutional.” For this reason, he argues that the Supreme Court cannot hold a monopoly on the meaning of the Constitution, advocating in its place a sort of constitutional Protestantism: “Just as people may read the Bible for themselves and decide what they believe it means to them, so too citizens may decide what the Constitution means to them and argue for it in public life.”20
Balkin nevertheless maintains that the point of constitutional government is “the eventual redemption in history of the principles of our founding document.” But the founding document is the Declaration of Independence, not the Constitution: “American constitutionalism is and must be a commitment to the promises that the Declaration makes about our future as a people.” Courts might not hold the Declaration to be legally enforceable, but there is no more important constitutional text. The Declaration “is the constitution that our Constitution exists to serve”; it “provides a legal and political framework through which those promises can be redeemed in history.”21 Viewed as civil religion, this idealized version of the Constitution subsumes the constitutional order of the state.
Constitutional Redemption is a powerful account of the US Constitution as a project of social integration exhorting people to identify with past accomplishments, connect with their forebears, and see themselves engaged in a common project. The American people are viewed as a community bound by a religious covenant, rather in the way that at the Passover seder Jews recite the story of their enslavement in Egypt and a redemption yet to be fulfilled.22 It is an enticing narrative—and thoroughly ideological. It is a modern American version of the myth of the ancient English constitution whereby the struggle for liberty called for the restoration of the ancient liberty-preserving Anglo-Saxon constitution suppressed under the Norman yoke.23 Advocating Protestantism as a democratizing force, interpreters must be fervent and faithful believers in an idealized reconstruction of the Constitution.24 “Integration through constitution” propagates a faith so deeply entrenched that all too many Americans are convinced that social progress is not realized through politics, electoral majorities, and legislative change but from such scholastic exercises in constitutional reinterpretation.
Social Integration in a Country without History
The American narrative of the Constitution as a social myth is a story of triumph. A loose nation of immigrants is forged into a singular people “conceived in liberty, and dedicated to the proposition that all men are created equal.” In stark contrast, the German narrative on “integration through constitution” is born of tragedy. The German nation, possessing an ethos of state and people, existed long before the adoption of its postwar constitution. But following the catastrophe of Nazi dictatorship, the Holocaust, and the division of the state, it was impossible to restore collective identity by drawing on traditional sources.25 In “a country without history,” the task of social integration depended on the capacity of its people to adhere to the liberal principles of its new postwar constitution, the Basic Law. “Integration through constitution” required the embrace of what came to be called “constitutional patriotism.”26
During the 1980s, German historians engaged in a heated debate over these issues. Michael Stürmer maintained that “in a country without history, the future belongs to those who give substance to memory, shape concepts, and interpret the past.”27 This caused Habermas to retort that present-day Germans “wish to reaffirm the identity of a nation committed to civil rights in a version appropriate to our history,” and “those who want to see Germans return to a conventional form of their national identity are destroying the only reliable basis of our connection to the West.”28 Habermas embraced constitutional patriotism as a form of identity in which the allegiance of citizens is no longer grounded in particular historical, cultural, and geographical sources but in their adherence to the universal legal, moral, and political values of constitutionalism.29 Claiming that the “unconditional opening of the Federal Republic to the political culture of the West is the greatest achievement of the postwar period,”30 he raised the question of how this late modern idea of patriotism was being realized.
The conventional answer is that Germany’s successful reconstruction was the result of two factors: system integration achieved by the postwar economic miracle (Wirtschaftswunder) and the Basic Law’s promotion of social integration. Constitution-making in West Germany began “with the vacuum as complete as any that western civilization has ever known.” Under the tutelage of the Allies, a constitutional democracy quickly took root, although it had an unprepossessing start. It was not the result of a democratic decision of a sovereign people; rather, it was adopted by a Parliamentary council established at the behest of foreign powers and consisting of leading representatives of the main political parties. That it was only provisional was clearly indicated by its avoiding such terms as “constituent assembly” or “constitution” and by the fact that the Basic Law was ratified by agreement of the West German states’ governments and not by popular referendum. “On the birth of very few other constitutions in the history of western civilization,” noted Peter Merkl, “was public opinion so silent.” Constitutional scholars at the time even referred to it simply as a law for “the uniform administration of the occupation zones outside the Iron Curtain.”31
Since the failed experiment of Weimar had been feted at birth as making the German Republic “the most democratic democracy of the world,”32 those drafting the Basic Law were particularly concerned about aspects of the Weimar Constitution that might have facilitated Hitler’s rise to power. They therefore excluded certain popular elements such as the use of referendums. There was also concern that proportional representation might lead to a fragmentation of authority that could be exploited by the emergency powers of the president. Distrusting executive power, the framers ensured that the newly established Federal Constitutional Court, rather than the president, would be entrusted with the role of guardian of the constitution.33 The Basic Law thus established a constitutional order of “managed” or “constrained” democracy that included multiple checks on popular sentiment. It was an “attempt to reconstruct democracy without the demos,” making the Court “a veritable demiurge of West German democracy, of which it would determine both content and form.”34
This was very much a lawyer’s constitution. So how did it become such an important symbol of social integration? A federal regime alleviated fears of big government. Placing civil rights protection under the supervision of the Court rather than legislative or executive influence may have been another factor. But one should not underestimate the simple fact that after their catastrophic experience of war, the German people retreated into a private world that eschewed interest in political issues. In a 1955 poll, when asked whether they approved of the Basic Law, 51 percent of respondents claimed not to know its contents, and as many as one-third to one-half indicated a complete lack of interest in politics.35 The Basic Law appears to have been constructed as a constitution for a postpolitical age. But knowledge of its contents seemed irrelevant since it came to stand as a monument of faith, a symbol of identity that filled the vacuum created by the loss of historical sources of political identity.
Günter Frankenberg notes that the Basic Law contains many principles that are not easily reconcilable. These include majority rule versus protection of minorities, individualism versus altruism, autonomy versus paternalism, subjective rights versus the state’s protective duties, and so on. “Exactly which and how many of these rights, principles and values,” he asks, “should a constitutional consensus encompass?”36 This misses the point. All that is required for unity is faith in the symbol together with trust in the institution acting as its guardian. Ernst Forsthoff may have been right in claiming that “the Constitution has ceased to be an instrument of unification,”37 but this is a secondary matter once the constitution becomes a symbol of unification.
This symbolic role is reinforced by Article 79(3) of the Basic Law, which prohibits any amendment of either the provision for basic rights or the organization of the federal system. This so-called eternity clause in effect imposes a fixed value order on the regime, an order that during the 1950s was strengthened by Constitutional Court rulings maintaining that the Basic Law was an “objective system of values” that not only bound the state but also shaped the entire legal order.38
Dieter Grimm notes that the Court’s “popular esteem grew from decade to decade, as the dedications expressed at the various jubilees testify.”39 In a speech marking the Court’s tenth anniversary, for example, Rudolf Smend modified his Weimar thesis that social integration is a function of cultural factors and argued instead that the Court had now assumed this integrative role: the Court “does not interpret and apply our Constitution as the standing orders for an economic and technical-administrative purposive association, but as rules for a good and fair life for the German people.”40 And when four leading constitutional lawyers produced a critical appraisal to mark sixty years of the Court’s establishment, significantly they called it a study of “the unbounded Court.”41
Peter Häberle’s influential argument that constitutional interpretation should not be fixated on the “closed community” of legal scholars further points to the Basic Law’s role in promoting social integration. A constitution “that not only incorporates the state in a narrow sense, but also structures the public and constitutes society” must embrace what he calls “the open society of constitutional interpreters.”42 This has similarities to Balkin’s Protestant mode of interpretation, as does Häberle’s argument that preambles, though not legally enforceable, are “the source of insights” into understanding the constitution “as a framework for renewed harmony of citizens, of legitimacy, limitation and rationalisation of state as well as societal power and as an expression of the cultural development of a People.” For Häberle, preambles “are an appeal to all citizens and a directive for lawyers” and they “bring all the interpreters of an open society together in an exemplary fashion.” But while the ideology of the “open society of constitutional interpreters” performs a significant symbolic role, Häberle also acknowledges that the court must remain “the guardians of the interpretive monopoly on the main stage.”43
The Contemporary Cult of Constitutionalism
For many decades, the American constitutional experience was regarded as unique, a product of the singular circumstances of the birth of the American nation. But, as we have just seen, the American model of constitutionalism—the Constitution as a comprehensive text authorized in the name of the people to establish a permanent framework of higher-order law whose meaning is entrusted to the judiciary—also took root in postwar Germany.
Since the 1980s, this innovation has acquired universal significance. As Grimm notes, the German experience “became a model for many states that had liberated themselves from dictatorships of every ilk.” Institutional features of the American model had been devised under the influence of classical constitutionalism, but newly liberated states saw in the German constitution “a guarantor of economic prosperity and political stability” and thus “borrowed from it when they drafted their own constitutions.”44
But what exactly do they seek to borrow? It might be something akin to the German idea of “constitutional patriotism.” The phrase resonates because, being so abstract, it is one “with which people on both the left and the right could identify,” standing as it does as a modern political symbol “in a society deprived of its [historic] basis for national identification.”45 But institutional infrastructure is also important. The role of the German Constitutional Court, with its sole responsibility for attending to constitutional requirements, has distinct advantages. These, as Bruce Ackerman notes, are both legal and political. Legally, “it frees judges from the reigning dogmatism of the civil law tradition and allows them to reflect self-consciously on liberal values”; politically, “it encourages the selection of judges who are untainted by close association with the old regime.” A great deal of the Court’s legitimacy derives from two additional features. The first is that some key values of the Basic Law cannot be amended, which enhances the Court’s autonomy. The second is the breadth of its jurisdiction, which “allows the court to generate its own symbolic linkages to the ordinary citizen.” This, Ackerman concludes, “symbolizes the seriousness of the new regime’s commitment to limited government and individual freedom.”46
The age of constitutionalism, then, begins with a renewed interest across the world in the nature, purpose, and potential of a constitution. But the age of constitutionalism is not simply the result of the growing number of new constitutions over the last thirty or so years. It also signifies the realization of an ambition to establish the constitution not only as the authoritative instrument of government but also as the symbol of the regime’s collective political identity. The constitution is raised to the status of civil religion.
The scale of this ambition is revealed once we realize that the instrumental and symbolic dimensions of the project directly conflict. To ensure “government under law,” the instrumental aspect of the constitution requires clear rules on the allocation of decision-making authority. But to achieve its symbolic purposes, the constitution must incorporate values and statements of principles pitched at a high level of abstraction and ambiguity. Reconciliation of these instrumental and symbolic dimensions becomes a key task for the court, an innovation of major legal and political significance and one that requires the judiciary to develop nothing less than a new species of law.
The legal significance of the court’s task in reconciling the instrumental and symbolic dimensions of the constitution should not be underestimated. The judiciary must advance a new conception of fundamental law that involves a return neither to natural law nor to customary law. Requiring the interpenetration of political and legal reason, it is a novel elaboration of Rousseau’s concept of droit politique, political right. It leads to the creation of “constitutional legality,” a method of reasoning in which governing according to law no longer means governing subject to enacted rules but in accordance with abstract principles of legality dependent as much on political as legal rationality.
This development forces us to reconsider the nature of constitutional jurisdiction, the appropriate method of constitutional interpretation, and the meaning of constitutional legality. It also raises new questions about how such basic values as life, liberty, and property—and equality, solidarity, and security—are to be given constitutional recognition. Finally, it highlights the possibility that the Enlightenment project of “universal reformation” is entering a phase in which the catalog of constitutional values is not simply the measure of social integration within the nation-state but also of “global society.” This takes us a long way from classical constitutionalism in which the judiciary acts merely as the mouthpiece of the law and in which—to use Montesquieu’s terminology—their power of judging is “null.”47 The chapters that follow take up the implications of these developments.