POLITICAL CONSTITUTIONALISM VERSUS LEGAL CONSTITUTIONALISM

The dissatisfaction with the practice of democratic law-making is palpable within the modern legal academy, a point underscored by Roberto Unger – quoted with approval by Bellamy – for whom this is one of the 'dirty little secrets of contemporary jurisprudence' (p. 1). Political Constitutionalism's argument has to contend with a plethora of legal theorists, notably Ronal Dworkin, Jeremy Waldron

'the attractiveness of republican theory lies in its ability to offer an alternative to the problematic liberal understanding of freedom as non-interference'

and Martin Shapiro, who claim that democracy has to be constrained in some fashion by the courts' ability to enforce constitutional rights against majoritarian depredations. In the absence of such guarantees, individual liberty is imperilled; constitutional democracy thus ought to be considered the morally superior form of regime.

Such theories find a practical parallel in the post-WWII popularity of bills (or declarations) of rights. Examples abound: the Universal Declaration of Human Rights (1948), the European Convention on Human Rights (1950) or the more recent EU Charter of Fundamental Rights (2000) and the UN Declaration on the Rights of Indigenous Peoples (2007). Regardless of whether these documents are justiciable in the courts or merely instances of declaratory intent, this insistence on rights underlines the extent to which lawyers now both consider themselves and are considered to be at the forefront of political action and reflection. Accordingly, the language of human rights has come to provide both the vocabulary and grammar for conceptualising how democracy must function. Taken to its furthest extent, this doctrine believes that rights, once they have been set in stone, should be placed beyond politics, a position associated in Political Constitutionalism with John Rawls' 'overlapping consensus' (Rawls, 1993).

Theorists of constitutional democracy may constitute a broad church – as revealed by Bellamy's meticulous rebuttal of its various strands – nonetheless they rely on two overarching claims. First, that democratic politics is able to 'come to a rational consensus on the substantive outcomes that a society committed to the democratic ideals of equality of concern and respect should achieve' (p. 3). Second, that this consensus on outcomes constitutes a fundamental law, which has to be guarded by the courts from encroachment by democratic legislatures; a constitution is necessarily to be privileged vis-à-vis the process of drafting ordinary legislation. Bellamy's argument works by debunking both these claims.

The former, the idea that democratic values can be defined as a set of canonical rights constituting the preconditions for democracy, is shown to be a heroic assumption. Here, Political Constitutionalism reverses Rawls' precept that 'the role of a constitution must be to promote an agreed account of justice' (p. 20). Rather, 'no such agreement' (ibid.) is considered possible leaving politics to provide 'procedures to work through disagreements about justice and ... come to collective decisions that can be equitably enforced' (ibid.). In this way, rights emerge from – and cannot predate – politics. This is primarily a pragmatic proposition reflecting the 'practical limits of human reason' (p. 23) whereby 'agreement on the right might be reached in principle' (ibid.) but is highly improbable in practice. For instance, even with the existence of a democratic decalogue, there will inevitably be hard cases where it would be 'hard to agree [about] the right balance between them' (p. 25). The alternative to defining a bundle of universally acceptable rights that will legitimise a certain democratic political system is to devise a procedural framework to provide a means for resolving disagreements surrounding rights. However, this leaves hanging the question as to whether legal constitutionalism, and

'no legal theory of constitutionalism has succeeded in placing law above the whim of man, what Bellamy calls the 'problem of the sovereign ruler''

especially judicial review, can legitimately fulfil this function. Having dismissed the ability to find an overarching agreement on the content of rights by the middle of chapter one, the greater part of the book is devoted to a critique of this second plank of the theory of constitutional democracy.

Rejecting legal constitutionalism and judicial review, as Political Constitutionalism does very effectively, necessarily implies going against the grain of mainstream American legal and political theory. As Bellamy's remarkable analytical repudiation of this tradition demonstrates, much of this literature is based on an idealisation of the operation of the US Constitution. For these theorists, the latter's genius is thought to lie in its counter-majoritarianism as enforced by the jurisprudence of the Supreme Court. Yet the republican argument deployed against this tradition shows such counter-majoritarianism to be an unjust instance of domination that can be avoided by relying on political constitutionalism. Hence, it is important to outline the reasons why legal constitutionalism is incompatible with the principle of freedom as non-domination.

First and foremost, no legal theory of constitutionalism has succeeded in placing law above the whim of man, what Bellamy calls the 'problem of the sovereign ruler' (p. 57). Sovereign power is what both political and legal constitutionalism seek to tame so as to prevent rulers from exercising arbitrary power. Whereas legal constitutionalism believes that this task is best performed by constitutions and courts, the republican alternative recognises that 'it is the political system that de-sovereigntises [sic] sovereign power' (ibid.). The republican conception of law in the modern period has struggled to square the circle of constituting a republic of laws where the particularism of the individual rather than the general will can be expunged. The most obvious manifestation of this intent was Bonaparte's Code Napoléon that sought to codify legislation to such a degree that the judge would become 'a slave of the code system of law' (Stone Sweet, 2003: 2744). Of course, the reality is that law is not capable of being applied to actual cases in such a mechanical manner. Judicial interpretation and discretion cannot be eliminated, a fact that legal constitutionalism converts into a virtue.

Yet by insisting on the need for judicial review of all legislation, to prevent breaches of constitutional rights, legal constitutionalism ends up 'turning judges into sovereigns and potentially arbitrary legislators in their turn' (p. 79). From a republican perspective, therefore, it is the very acceptance of a constitutional court as the ultimate locus of sovereignty that is in itself antithetical to the principle of freedom as non-domination. Indeed, as Political Constitutionalism recalls, the empirical evidence demonstrates that such power has often had pernicious consequences for liberty and justice. Egregious exemplars from US Supreme Court jurisprudence include the Dred Scott decision (1857), the 'equal but separate' ruling of Plessy v. Ferguson (1896) and a host of anti-New Deal decisions under the Roosevelt administration. Furthermore, the way courts are designed to defend constitutional rights often comes at the cost of disregarding the 'collective dimension' (p. 51) of rights for which 'a collective view is necessary' (p. 49) and for which it is not clear why 'the judiciary is better placed than ordinary citizens to decide what view is' (ibid.). Bellamy illustrates this stance with the infamous Buckley v. Valeo (1976) judgment that overturned the Congress' attempt to restrict the influence of money in election campaigns on the grounds that this offended against freedom of speech.

Judicial review is undoubtedly a singular feature of the US Constitution as all primers of US politics note. However, one of the great merits of Political Constitutionalism is that it highlights the intrinsic connection between the power of the Supreme Court and the notion of sovereignty, a less-remarked feature of the US constitutional system. As all students of American law know, the judicial review of federal legislation was not a principle explicitly contained in the founding constitutional document. Instead, it arose through Chief Justice John Marshall's ruling in Marbury v. Madison (1803). However, the subsequent history of the principle is not so straightforward precisely because of the ambiguity that endured over the locus of sovereignty in the early US republic.

SOVEREIGNTY AND CONSTITUTIONALISM

The founding fathers purposefully 'shrank from placing the sovereign power anywhere' (Bagehot, 1963: 218). This was largely in reaction to the new-fangled principle of parliamentary sovereignty that Britain had tried to foist upon the thirteen colonies (Huntington, 1966). In this context, Marshall's decision in Marbury v. Madison did not suddenly establish the Supreme Court as sovereign. While the decision meant that the court 'claimed for itself the right to oversee the constitution, it did not claim that its power to do so was either exclusive or final' (Ellis, 1987: 185). Such a doctrine of Supreme Court sovereignty would have been incompatible with republican freedom, a point precisely articulated by Abraham Lincoln in his first inaugural address, which Bellamy quotes, as he sought to rectify the damage done by the Dred Scott decision: If the policy of the Government upon vital questions, affecting the whole people, is to be irrevocably fixed by decision of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned the government into the hands of that eminent tribunal (p. 122).

What changed the nature of the power exercised by that 'eminent tribunal' was the civil war. As a leading constitutional historian has recently noted, 'the truly revolutionary consequence of the Civil War and Reconstruction, one that was entirely unforeseen, was the general public's acceptance of the idea that the [Supreme] Court was the sole and final arbiter of constitutional controversies' (McDonald, 2000: 224). The contingent emergence of judicial review was subsequently reconciled with the original intent of the founding fathers by stressing how this process adheres to the latter's desire to circumscribe legislative majorities. In this way, the Supreme Court is understood as another element in the counter-majoritarian strategy of US institutional design alongside federalism, bicameralism and the presidency. Political Constitutionalism challenges the assumptions underlying the threat of the tyranny of the majority as anti-republican in order to evince the superiority of political constitutionalism.

Counter-majoritarianism is premised on the fear that a legislative majority, if sovereign, can undo – via legislation – constitutional rights. Regardless of the role the judiciary has in counteracting the supposedly nefarious intentions of legislative

'Bellamy persuasively rejects the assumptions grounding the notion of sacrosanct constitutional politics whose locus classicus is a convention for establishing or revising a constitution'

majorities, Bellamy argues that the principle itself enshrines political domination. This is because political institutions designed to contain the majority's ability to transform them contain an inherent 'bias towards the status quo' (p. 227). As such, the principle has long been recognised as a barrier to progressive change. For this reason, one recent strand of constitutional thought – again using the US constitutional experience as its model – has tried to adapt constitutionalism to take account of the majority's potential ability to reform democracy for the better. In order to do so, these theorists have revisited the link between popular sovereignty and constitutionalism.

To avoid hamstringing democratic majorities through counter-majoritarian principles that do not allow for reform of a flawed constitution, Bruce Ackerman (1991) advocates distinguishing between constitutional and ordinary politics. Whereas the latter must function with restraints against simple majoritarian constitutional change, there are times when such bonds must be lifted. These are moments of so-called 'constitutional politics', 'when some national crisis manages to unite the people and leads them to transcend their own particular interests and consider the common good' (p. 130). In this way, constitutional rights are amenable to periodic revision to prevent entrenched injustices. The Supreme Court is still tasked with upholding rights in the course of politics as usual but must do so according to the 'intentions of the people as expressed at the last moment of constitutional politics' (p. 131). Thus, 'the constitution does evolve but not as a result of judicial interpretation' (ibid.).

Bellamy persuasively rejects the assumptions grounding the notion of sacrosanct constitutional politics whose locus classicus is a convention for establishing or revising a constitution. Evidence from constitutional conventions does not suggest that they are somehow better forums for reaching disinterested compromises on the principles of political life. Constitutional politics 'turns out to be remarkably similar to normal politics – the one is less high-flown and consensual than its advocates imagine, the second more principled' (p. 133). Indeed, the rejection of the Ackerman thesis could have been made even more pungent by dwelling on the absence in US constitutional tradition of either an accepted practice of constitutional foundation through conventions or a settled procedure for amending constitutions (Fritz, 2004). The fact that, especially at the state level, 'amendments were routinely made in circumvention of the procedures specified by the constitution to be amended' (ibid.: 1354) belies the confidence with which Ackerman believes constitutional politics can be distinguished from ordinary politics. Hence, in the US, the notion of popular sovereignty has never corresponded with a monolithic procedure for legitimising moments of constitutional change.

'Popular constitutionalism' is a new term for expressing the formerly prevalent constitutional belief that the US Supreme Court does not hold a monopoly on the authoritative interpretation of the constitution. Rather, popular sovereignty as expressed through the President and Congress should ultimately hold sway in clashes of constitutional interpretation. Once again there is much terminological confusion at the kernel of this argument: if the people are 'to be the final arbiters of the constitution ... ordinary legislation within the legislature has to be the sphere of constitutional politics' (p. 139). Thus, at the end of the day, it is democratic politics that matters rather than constitutionalism, which underscores the importance of understanding the virtues of political constitutionalism. To do so, it is vital to appreciate the unique contribution republican theory can make to demonstrating the positive role of majorities.

DEMOCRACY AS BALANCE OF POWER

The keenness to counteract legislative majorities is always justified, for liberals at least, by reference to the potential for tyrannous rule by a majority. Taken to its paroxysm, this fear brings to mind something resembling the Nazi party's success in the electoral politics of Weimar Germany: the subversion of liberalism courtesy of democracy. It is exactly this impression of majorities as the bogey figure in liberal democracy that Bellamy wishes to dispel. The rehabilitation of majoritarianism is achieved through a republican reading of the merits of the 'balance of power'. The latter consists in the 'horizontal division of power' that 'foster[s] rights and the rule of law far more effectively than the traditional notion of the "separation of power"' (p. 196). Thus such a balance requires 'rival aspirants for power, as in competing majorities' (p. 200) whose task in modern pluralist societies is to construct majorities from a wide range of groups.

In this way, party competition provides an ideal incentive structure 'for the different parties "to hear the other side"' (p. 201) as they attempt the arduous task of building winning electoral coalitions. Such competition is absent in a polity where political institutions are functionally separated, meaning that 'each functional part can increase its political rents or shirk its responsibilities and displace the costs on to the others' (p. 202). Hence, the balance of power needed to abolish domination is a product of full-blooded party competition rather than mere institutional separation of powers – the latter providing only a simulacrum of the republican checks on abuse of power.

Justifying democracy in terms of non-domination requires party competition to produce 'an equitable process rather than ... decisions that all consider substantively equitable' (p. 213). The remaining riddle then is why the mechanism of one person one vote resulting in a legislative majority is the best means to fulfil this conception of justice. To settle this issue, Bellamy stresses the extent to which modern party politics compels parties 'to offer programmatic statements within a broad ideological framework' (p. 236) that avoids a simple polarisation of the electorate around single issues. Moreover, the logic of such competition is also inherently responsive, he argues: 'because an electoral majority is built from minorities and is prone to cycling coalitions, a ruling group will do well not to rely on a minimal winning coalition and to exclude other groups completely' (p. 238). Consequently, 'any given minority either has a good chance of being part of a future coalition or – for that very reason – is likely not to be entirely excluded by any winning coalition keen to retain its long-term power' (ibid.). Political Constitutionalism, therefore, characterises the dynamics of electoral politics as far more accountable than counter-majoritarianism to the shifting demands for justice from those challenging the status quo – as typically illustrated throughout the book by reference to the marginalised claims of women and workers.

Here is not the right place to scrutinise in depth this bold thesis about electoral politics' inherent superiority to legal

'Just as it would be absurd to claim that the Weimar Republic could have been saved by its lawyers it seems unfair to imply that courts must be judged by their failure to deliver justice to the politically excluded'

constitutionalism's model of democracy. Suffice it to say that there is perhaps more complementarity – and certainly less antagonism – between these notions of democracy than Bellamy allows for. If democracy itself is understood as a process for ensuring sanctioning, mandating and governing accountability then the purview of the courts mostly concerns the latter. Whereas elections are pellucid instances where voters can sanction past policy performance and establish a mandate for a new direction, in an age of strong executives, disciplined (if not cartel) parties and low party membership it seems fair to accept courts' potential role in holding governments to account in their day-to-day activities.

In addition, the argument could be said to rely excessively on the two major historical movements whereby marginalised groups succeeded in changing the rules of the game through electoral politics. It is clear that within the framework of a counter-majoritarian system overseen by judicial review, it is unlikely that courts could make good the claims for justice from women and workers largely excluded from political participation. Just as it would be absurd to claim that the Weimar Republic could have been saved by its lawyers, it seems unfair to imply that courts must be judged by their failure to deliver justice to the politically excluded. Only by influencing the existing logic of party competition by forging a coalition with other minorities to form an overall legislative majority could such systemic change happen. However, when fully established in their political rights it is by no means obvious why such groups should not support legal constitutionalism to bolster their progressive cause. For instance, why should proponents of gender equality sacrifice the gains made possible by national courts' ability to enforce EU legislation in this domain in favour of settling these issues through political constitutionalism?

CONCLUSION

The principal value of this ambitious book, especially for political scientists, is less its polemic against legal constitutionalism than its articulation of a coherent theory of republicanism as distinguished from liberalism. More precisely, Bellamy's outstanding contribution is to demonstrate the implications that the principle of non-domination has for understanding the nature and norms of democracy. Indeed, the demolition of the myth of the tyranny of the majority – a spectre that has sustained so much of the counter-majoritarian literature – bears a certain family resemblance to the insights furnished by 'new institutionalist' analysis of the deficiencies of US democracy. This approach has above all successfully overturned the assumption that cultural values account for the absence of a European-style welfare state across the Atlantic. Instead, the best explanation is the separation of powers that fragments majoritarian political power and entrenches vested interests (Steinmo, 1994). The fundamental novelty of Political Constitutionalism is to provide an account grounded in political theory that explains why US-style separation of powers fails to meet a republican standard of democracy.

So powerful is this argument about the need for a balance of power rather than a separation of powers and judicial review in order to achieve a just democratic process that it demands to be applied to that great recent experiment in reconfiguring democratic institutions: the EU. In fact, the book concludes with a tantalising promise to explore exactly this subject in a subsequent work (p. 263). In the absence of his prescriptions for reinvigorating democratic practices in Europe, the best that can be done is to apply Bellamy's notion of republicanism to critique the democratic constitution of the contemporary EU.

When assessed from the perspective of whether it conforms to a balance of power model or a separation of powers system, it is clear that the EU belongs to the latter. Institutionally, the EU is organised around 'multiple veto points to minimise interferences with particular liberties or privileges' (p. 196). The competition that exists within this system is that between 'rival centres of power' (p. 200) with the Commission, Council, Court and Parliament, all allotted certain governing functions. As a result, there is no place for legislative majorities at the EU-level to take authoritative decisions within the context of the circumstances of politics. EU politics may be competitive, since different institutions seek to expand or defend their functions, but it is not electorally competitive, which from a perspective of non-domination is what ultimately counts.

In this way, it is very difficult to identify any political constitutionalism in the EU. Rather, there is an evident counter-majoritarian status quo where legal constitutionalism is increasingly seen as a cure for various democratic ailments. Here theory and practice seem to have combined. The temptation has been to find a remedy in a new bill of rights to be enforced by the European Court of Justice – the Charter of Fundamental Rights (2000) – and a constitutional moment – the Convention on the Future of Europe that wrote the doomed Constitutional Treaty (2005). The net result is that we are no closer to a republican balance of power arrangement as constituted by party competition for a parliamentary majority. If anything, 'the legal constitutional medicines administered to tackle the developing democratic deficits have a tendency to exacerbate rather than alleviate these problems' (p. 263).

Unfortunately, Political Constitutionalism does not suggest any plausible shortcuts for fostering, let alone establishing, a republican balance of power at the EU-level. Indeed, it is debatable whether such a goal could ever be realised because as Bellamy recognises 'to a degree, a working democracy is pre-constituted by agreement between a given body of people possessing enough of a collective identity and interests to share common decision rules' (p. 235). Perhaps a solution to this impasse will be found by examining more closely those two federal separation of powers systems, Switzerland and the United States, that have managed to import successfully some element of the balance of power. In Switzerland, the proxy for constituting legislative majorities is direct democracy, while in the US – whose constitution does not allow for such national referendums – the institution for harnessing the power of the majority is, for all its defects, the presidency. By contrast, the EU's new-fangled 'popular initiative' (Lisbon Treaty, Article 8B), allowing a million EU citizens to petition the Commission to

'thanks to Bellamy, it should now be apparent that legal constitutionalism, in its various guises, is no solution to the problem of establishing democracy at the EU level'

legislate in a policy area already within its power, and the creation of an unelected President of the Council appear quite hollow.

Nonetheless, thanks to Bellamy, it should now be apparent that legal constitutionalism, in its various guises, is no solution to the problem of establishing democracy at the EU level. In itself, this constitutes a significant advance as – on the proviso that the argument is heard and understood in the corridors of power – it can prevent a repetition of the debacle that was the EU Constitutional Treaty. The grandiloquence and false hopes surrounding this episode did nothing to change the nature of EU democracy. Political Constitutionalism suggests it is necessary to set aside the apolitical approach to reforming democracy at the EU level; long overdue, the central message of this brave book is that it is time to bring politics back in.

References

1. Ackerman, B. (1991) We the People: Foundations, Cambridge, MA: Harvard University Press.
2. Bagehot, W. (1963 [1867]) The English Constitution, London: Fontana.
3. Bellamy, R. (2000) 'Citizenship Beyond the Nation State: The Case of Europe', in N. O'Sullivan (ed.) Political Theory in Transition, London: Routledge, pp. 91–112.
4. Bellamy, R. (2006a) 'Sovereignty, Post-Sovereignty and Pre-Sovereignty: Reconceptualising the State, Rights and Democracy in the EU', in N. Walker (ed.) Sovereignty in Transition, Oxford: Hart, pp. 167–190.
5. Bellamy, R. (2006b) 'The European constitution is dead, long live European constitutionalism', Constellations: An International Journal of Critical and Democratic Theory 13(2): 181–189.
6. Bellamy, R. and Castiglione, D. (eds.) (1996) Constitutionalism in Transformation: European and Theoretical Perspectives, Oxford: Blackwell.
7. Ellis, R. (1987) The Union at Risk: Jacksonian Democracy, States' Rights and the Nullification Crisis, Oxford: Oxford University Press.
8. Fritz, C. (2004) 'Fallacies of American constitutionalism', Rutgers Law Journal 35(4): 1326–1369.
9. Huntington, S. (1966) 'Political modernization: America vs. Europe', World Politics 18(3): 378–414. | Article |
10. McDonald, F. (2000) States' Rights and the Union: Imperium in Imperio, 1777–1876, Lawrence: University Press of Kansas.
11. Pettit, P. (1997) Republicanism: A Theory of Freedom and Justice, Oxford: Clarendon Press.
12. Rawls, J. (1993) Political Liberalism, New York: Columbia University Press.
13. Skinner, Q. (1998) Liberty Before Liberalism, Cambridge: Cambridge University Press.
14. Steinmo, S. (1994) 'American Exceptionalism Reconsidered: Culture of Institutions?', in L. Dodd and C. Jillson (eds.) The Dynamics of American Politics: Approaches and Interpretations, Boulder: Westview, pp. 106–131.
15. Stone Sweet, A. (2003) 'Why Europe rejected American judicial review: and why it may not matter', Michigan Law Review 101(8): 2744–2780. | Article |

About the Author

Andrew Glencross is a lecturer in international relations at the University of Pennsylvania. His Ph.D. thesis examined the early US republic and the EU in a comparative light as compound political systems. He is the author of What Makes the EU Viable? Comparing the Struggle Over the Rules of the Game of Politics in the EU and the Antebellum United States (Palgrave, forthcoming).