Introduction

Constitutional adjudication is much older and more deeply entrenched in the United States than in Europe. Moreover, constitutional adjudication is concrete and a posteriori in the United States, whereas it is, to a large extent, abstract and, in certain cases, ex ante in Europe, suggesting that the former should be inherently less political than the latter. Indeed, in abstract, ex ante review, the constitutional adjudicator tackles laws as they are produced by parliaments, prior to their coming into effect. This gives some European constitutional adjudicators an important policy-making function. Typically, the losing parliamentary minority can challenge the constitutionality of a law it had opposed in the legislature before a constitutional adjudicator who is empowered to strike down the challenged law prior to its actual promulgation, or to condition its promulgation on the adoption of interpretive glosses that limit, alter or expand it. In the United States, on the other hand, judicial review is supposed to be fact driven, meaning that courts are not supposed to decide on the constitutionality of a law in the abstract but only as it applies to particular facts linked to an actual controversy among real adversaries. Two important consequences follow from the American approach: first, constitutional review cannot be triggered in the absence of a concrete controversy; and, second, the factual setting of the relevant controversy tends to anchor constitutional review within a framework that is more conducive to adjudication than to legislation.

Until the end of the Cold War comparative constitutional lawyers and political scientists tended to emphasise the common ground within the North Atlantic region. Today, some even speak of a ‘European-Atlantic constitutional state’. This view was and is perfectly legitimate. It was not only the radically different socialist understanding of law which made western constitutional theories and practices appear to be so similar. This similarity is also firmly grounded in the cross-fertilising constitutional developments between Western Europe and North America which have taken place before and since the eighteenth century.

The end of the socialist systems in Eastern Europe and increasing ‘globalisation’, however, may bring about a change of emphasis from the similarities to the differences between the constitutionalisms in the United States and Europe. Over the past few years issues have emerged which seem to indicate that European constitutional theory and practice is becoming aware that it has developed certain rules and possesses certain properties which are characteristically different from US constitutionalism and vice versa. This new perspective, or rather such a change in emphasis, is likely to be reinforced by political developments which expose discrepancies in the evaluation of fundamental questions between the majority of Europeans on the one hand and the majority of Americans on the other.

This book was conceived before the drama of the latest Iraq crisis unfolded. That crisis has had profound repercussions on transatlantic and intra-European political relationships. It has obviously gone beyond disputes about international law.

The United States of America makes a woeful impression on many Europeans. Of course this is partly because of the overwhelming, and more or less unbridled, way in which Americans exercise military and economic power on the international stage. It is inevitable that a dominant power like the United States should face resentment. But there is more to the distrust and dislike of the United States than that. Europeans are also frequently troubled by the internal structure of American society. America is a harsh place. This has to do in part with economics. American governments have largely abandoned the project of redistributing wealth, showing little commitment to social welfare states of the European type. Even inheritance taxes, which lie at the core of modern state socialism, are under heavy and largely successful attack in the United States.

Economics are only part of what can make American society seem harsh, though. ‘Human dignity’, as Europeans conceive it, is remarkably weak in the United States as well. The most striking evidence for this is the American record of rejecting international conventions on human rights, or accepting them with crippling reservations. To take only one dramatic example, until recently the United States continued to inflict the death penalty for crimes committed when the offender was a minor, in the face of the International Covenant on the Rights of the Child. Criminal justice offers many other examples of American practices that Europeans reject as not only harsh, but no less than barbarous.

Models of constitutionalism

In order to assess the role played by the concept of human dignity in European and US constitutionalism, it is expedient to briefly recall the two phases that western constitutionalism went through during the last two centuries.

In the nineteenth century, the state model prevailing on both sides of the Atlantic was the classical liberal model. The legal system was composed of relatively few stable norms, some of which were modified from time to time by special legislation. The special norms were meant to be interpreted narrowly. The system would define and protect the autonomy of the individual in all areas of social life, in particular the economy, culture and politics. Where formal, written constitutions existed, they usually contained solemn guarantees for individual autonomy, the fundamental institutes of which were already defined and protected by sub-constitutional, ordinary law. In addition, these constitutions usually proclaimed a general principle of formal equality of all citizens before the law. The constitutional guarantees were judicially enforceable against executive state action. In the United States they were, in principle, also enforceable against unconstitutional legislation.

The twentieth century witnessed the advent and the expansion of the model of the interventionist state. The progress of the new model was primarily connected with the industrialisation of society. Industrialisation carried with it:

• a weakening of autonomy rights in the area of economic relationships in order to protect important interests which were not sufficiently provided for by the mechanisms of the free market;

• a reinforcement of civil rights and freedoms in the areas of culture, politics and the strictly personal life of the individual, perhaps as a sort of compensation for the diminished force of economic freedoms;

• […]

Introductory remarks

My intention is to address the structural dimension of ‘democracy’, i.e. the question, how to make the organs of the state capable of reflecting the principle of ‘rule by the People’. Such a question cannot be discussed in abstract terms, but must be related to a particular historical and geographical setting. The evolution of constitutionalism in post-Communist Europe in the 1990s, in which I had the privilege to participate, seems to meet this requirement.

The term ‘international influences’ can be understood in different ways. In particular, ‘international influences’ can be associated with attempts of the outside world to impose certain solutions upon the constitution-drafting process in a particular country. Short of military intervention and/or economic pressure, the most civilised way of imposing certain standards upon national processes of constitution drafting is to ‘universalise’ these standards by expressing them in the norms of international law. Such norms, if vested with sufficient binding authority, can pre-define the content of national constitutions leaving to the framers of a particular constitution no alternative but to reproduce them in the text of the constitution. In consequence, the choices reserved for the sovereign decisions at the national level may become rather limited. If ‘international influences’ develop in such a direction, it would inevitably lead to a conflict between democracy (or, rather, national sovereignty) and international law. Professor Rubenfeld's concern seems quite legitimate from this perspective.

Constitutional and human rights doctrines and rights differ across cultures not only in their substance, but also in their architecture. Some rights are worded broadly and vaguely while others are written in narrow and precise terms; for some rights the determination of the scope of the right is merged with the determination of its strength, while for others questions of scope and strength are sharply delineated; some rights are seemingly absolute, yet others allow for overrides; some rights are universally applicable within their jurisdictional scope, while others apply only to some people, or at some times, or in some places; and some rights are non-derogable, while others are subject to suspension in cases of catastrophe, or in circumstances of emergency or crisis.

Although such differences in the architecture of rights pervade the topic of constitutional and human rights, the architectural issues have been especially visible and especially contested with respect to the rights variously described as freedom of speech, freedom of communication and freedom of expression, and including the freedom of the press, the right of assembly, the freedom of association and various other rights (academic freedom and artistic freedom, for example) commonly associated with or part of the cluster of communicative rights. In part because the concepts of speech, communication and expression are themselves so capacious, and in part because the countervailing interests often both appear and are especially weighty, there has been an explicit concern with the design of freedom of communication rights in virtually all countries with sophisticated constitutional or human rights cultures and legal protection.

What is the source of America's growing unilateralism? The easy answer is self-interest: we act unilaterally to the extent that we see unilateralism as serving our interests. But the answer prompts a more searching question: Why do so many Americans view unilateralism this way, given the hostility it provokes, the costs it imposes, and the considerable risks it entails? Americans sometimes seem unilateralist almost by instinct, as if it were a matter of principle. Might it be?

It will not do to trace contemporary US unilateralism to the eighteenth-century doctrine of isolationism, for unilateralism is a very different phenomenon. An isolationist country withdraws from the world, even when others call on it to become involved; a unilateralist country feels free to project itself – its power, its economy, its culture – throughout the world, even when others call on it to stop. Although there may still be a thread of isolationism in the United States today, unilateralism, the far more dominant trend, cannot usefully be derived from it.

The search for an explanation should begin instead at the end of the Second World War. In 1945, when victory was at hand and his own death only days away, Franklin Roosevelt wrote that the world's task was to ensure ‘the end of the beginning of wars’. So Roosevelt called for a new system of international law and multilateral governance that would be designed to stop future wars before they began.

The comparison drawn: a difference in legal doctrines

A seminar is in progress. The general theme is relationships and comparisons between US and European constitutionalism. The programme includes, as one topic for discussion about which you, as an American constitutional lawyer, are especially invited to comment, ‘the protective function of the state’. What question, exactly, is being put to you?

Is the issue supposed to be ‘ESR’, economic and social rights? In relation to constitutional law, the question of the state's ‘protective’ function easily could be taken to mean – or to include – the question of obligating the state, by constitutional-legal mandate, to ensure provision to all citizens of the means of satisfying certain material interests such as subsistence, housing, health care and education. I take the meaning, though, to be a different one. By its reference to the state's ‘protective function’, I understand the seminar programme to mean the state's function of safeguarding inhabitants effectively against various forms of violation and intrusion at the hands of fellow inhabitants. Thus, I envision the comparative seminar's agenda listing, as two separate topics for discussion, ‘ESR’ and ‘the protective function of the state’.

Thus understanding the ‘protective function’ question, it seems the response to it might be both short and sweet. Alike in US and European law, everyone enjoys a range of civil rights against abusive treatment by other members of society.