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the Complete Review
the complete review - law



Against Constitutionalism

by
Martin Loughlin


general information | our review | links | about the author

To purchase Against Constitutionalism



Title: Against Constitutionalism
Author: Martin Loughlin
Genre: Non-fiction
Written: 2022
Length: 205 pages
Availability: Against Constitutionalism - US
Against Constitutionalism - UK
Against Constitutionalism - Canada
from: Bookshop.org (US)
directly from: Harvard University Press

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Our Assessment:

B+ : a thorough overview, well-presented

See our review for fuller assessment.




The complete review's Review:

       In his short Preface to Against Constitutionalism author Martin Loughlin explains that he intends to show that: "constitutionalism should not be equated with constitutional democracy", and that: "this book makes the case for constitutional democracy against constitutionalism". Much of the book then focuses on defining and then differentiating the two -- as he also observes that: "constitutionalism, though often extolled, is rarely defined".
       A fairly clear definition is presented early on:

     Constitutionalism is a method by which we shape a cluster of beliefs and cultural symbols into a meaningful arrangement, thereby making it available for purposive action. In this respect, like liberalism and nationalism, constitutionalism is an ideology.
       As he notes, the idea of constitutionalism predates written constitutions, but it is only with the adoption of written constitutions ("a purely modern invention") that constitutionalism has become: "the world's most influential contemporary philosophy of government". The American Constitution (written 1787) remains the standard-bearer -- with, Loughlin notes, the Federalist Papers the: "true foundational text of constitutionalism" --, with constitutionalism however only really taking off in the twentieth century, and after the Second World War at that, first in the examples of (initially just West) Germany's Basic Law (the Grundgesetz) and then India. More recently, it has spread even more widely and rapidly, as: "it is only in the last three decades that constitutionalism truly has come of age", as, in the wake of the fall of communism and the decline of dictatorships elsewhere we have seen: "new constitutions being drafted at an unprecedented rate". (He notes that at the end of the Second World War there were only twelve constitutional democracies left; by 1987 there were 66; and in 2003, 121; obviously, a significant number of these are only nominally constitutional democracies, as there's more to that than merely having a constitution and, as, he notes, without some proper foundations the document does not necessarily play a significant role in the actual functioning of the state.)
       Summing up:
     The basic principle of the modern constitution is that it is drafted by elected representatives of the people meeting in a constituent assembly with the purpose of establishing a regime of limited government that respects the fundamental rights of the individual.
       Beyond that, however:
To maintain the authority of government, the constitution was 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 society.
       Loughlin finds: "The constitution is raised to the status of civil religion" and notes that Mattias Kumm, for example, has argued that: "in the twenty-first century we enter the era of the total constitution". Demanding (or making) so much of the document of course brings numerous difficulties with it, not least in the (essentially)fixed text often proving inadequate to deal with changing social realities. As he notes, the interpretive industry that has been built up around, for example, the American Constitution is an enterprise that: "verges on collective madness"; the American example -- "A rickety charter of right", he notes -- is a particularly striking one, necessitating -- because they are not enumerated in the original document -- "basic rights to be devised by the Supreme Court on an ad hoc basis and subject to political trade-offs according to the composition of the Court".
       Constitutions -- not least the American one -- are generally made difficult to alter or amend -- as part of their appeal is, of course, that they are meant to be fundamental, i.e. near-absolute. With interpretation taking on such an important role, there is an almost inevitable trend towards 'juristocracy', the judiciary no longer co-equal with the other branches of government -- the executive and legislative branches --; and as a result, as Loughlin argues:
The problem is that democracy is a contested political concept and lawyers, conditioned to think through the prism of rights, invariably privilege a particular conception. The reprocessing of democratic will formation through the language of rights -- the rights of speech and association, the right to vote, and the right to political equality -- leads to individualization and thus significantly undermines the ability of collective organizations like political parties and interest groups to build coalitions of interests.
       As society changes, constitutionalism can (easily and all too readily, he suggests) lead to a divergence from popular will; if constitutional democracy is the ideal -- the people continuing to have their say --, constitutionalism, staking too much on the written document rather than the unwritten (and, over the years, shifting) constitution that represents the true, present-day will of the people, increasingly finds itself at odds with it.
       Against Constitutionalism means to raise awareness of this situation -- and, as Loughlin sees it, of the danger it poses. His essay gives a thorough overview of constitutionalism and the variety of forms it has taken. The example of the American Constitution and the experiences with it are perforce prominent, but he ranges considerably beyond it as well, with the German and Indian examples particularly helpful in showing different forms of basic law and some of the real-world implications of these.
       The danger -- in this particular example, in the US, but hardly limited to there -- of judges being: "transformed from guardians into masters of the Constitution" is a considerable one -- and problematic for any hopes of democracy. Loughlin offers no easy prescriptions as to how to 'save' constitutional democracy, but his warning against the particular kind of idealizing of the written constitution that has become so widespread is certainly worth paying attention to. Significantly and helpfully, his focus is not limited to the American example but rather places that in the larger context, comprehensively covering constitutionalism in its various forms across the ages and worldwide.
       Offering a tightly-presented but far-ranging survey of both legal theory and practical example, Against Constitutionalism is a thoughtful and thought-provoking introduction to and analysis of the subject-matter.

- M.A.Orthofer, 8 May 2022

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Links:

Against Constitutionalism: Martin Loughlin: Other books of interest under review:

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About the Author:

       Martin Loughlin teaches at the London School of Economics.

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© 2022 the complete review

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