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The globalisation of constitutional law as a weakly neo-liberal project

  • MARK TUSHNET (a1)

Abstract:

An international consensus on the content of domestic constitutional law has structural ‘rights’-related components. The former requires roughly democratic systems for choosing representatives/executives. The consensus favours some forms of judicialised constitutional review, though the precise form is open to choice. The rights component includes a standard list of ‘core’ civil rights, including in this category equality along a number of dimensions – though not class or income. The rights-component is fundamentally neo-liberal. This is clearest in connection with ‘second generation’ social and economic rights, which – the consensus holds – can be recognised in a constitution but should not be vigorously enforceable (in systems where there is judicial enforcement of constitutional rights). The rights of free expression and political association must be specified in ways that allow political challenges to be mounted against efforts – including legislative programmes of political parties that control governments – to resist the neo-liberal policy agenda. Departures from this consensus are described as departures, not from ‘neo-liberal’ or even ‘liberal’ constitutionalism, but as departures from constitutionalism as such. We could ‘thin down’ the idea of constitutionalism quite a bit without abandoning constitutionalism’s core commitment to avoiding arbitrary government action.

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1

Harvard University Law School.

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References

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2 Law, D, ‘Generic Constitutional Law’ (2005) 89 Minnesota Law Review 652.

3 This article should be read as highly speculative, and as a companion to an earlier work, Tushnet, M, ‘The Inevitable Globalization of Constitutional Law’ (2009) 49 Virginia Journal of International Law 985, which has not yet been shown to be entirely wrong.

4 I wonder whether the view that globalised constitutional law serves as a counter to neo-liberalism arises from a focus on the use of the term to refer to norms regulating the operation of transnational institutions. I do not address that question because my focus is on domestic constitutional law.

5 See <https://www.constituteproject.org/>. Were I to pursue this project further, I would begin by examining the comments monitoring bodies like the Venice Commission and ad hoc reviews of specific developments make about changes in national constitutions. The comments of interest would criticise (1) provisions that deviate from the supposed consensus on what constitutional law must include, and (2) omissions of provisions required by that consensus. I would exclude comments on national reports by United Nations bodies because they often have charges that require them to monitor quite specific matters, which – aside from their presence in the UN documents – do not appear to have the kind of consensus that the idea of globalisation requires.

6 See, e.g., Cohen, JL, Globalization and Sovereignty: Rethinking Legality, Legitimacy, and Constitutionalism (Cambridge University Press, Cambridge, 2012) 307–8 (describing the European Union).

7 Notably, though, failures to exercise the franchise that result from poverty or other social disadvantages are not thought to undermine the domestic constitution’s roughly democratic character, though such failures might undermine the claim that the nation is a well-functioning democracy.

8 The terms ‘roughly’ and ‘relatively’ are important in these formulations, as they are throughout my comments. Everyone knows that real-world democracies fall short of stipulated ideals of democratic functioning, but these shortfalls, if they are not systematic or ‘built in’ to the system, do not cast doubt on the claim that a nation’s constitutional system is consistent with the requirements of global constitutionalism.

9 Many would contend as well that these courts must have the power to hold unconstitutional exercises of the executive’s prerogative power (when the domestic constitution acknowledges the existence of such a power), but my judgment is that this norm has not yet become part of global constitutionalism’s requirements.

10 Global constitutionalism requires, at this point, only that the courts have the power to declare primary legislation unconstitutional, and does not require that they have the power to, as the British put it, disapply primary legislation. Global constitutionalism may already require that courts have the power to hold unconstitutional secondary legislation and executive actions purportedly authorised by law, giving those holdings legal effects in the cases presenting the claims of unconstitutionality. And, it is reasonably clear to me that global constitutionalism is moving in the direction of requiring that declarations of the invalidity of primary legislation have immediate legal effects.

11 They appear increasingly in new constitutions in the global South but not, even there, to the point of achieving something like constitutional recognition by consensus. (The lack of consensus might result simply from timing, with all or nearly all recently adopted constitutions in the global South – and some in the global North – recognising third-generation rights.)

12 A commenter on a prior version of this article suggested that recognising third-generation rights might be strategically advantageous for proponents of neo-liberalism because recognising such rights can fragment the political opposition to neo-liberal programmes. I am agnostic about that suggestion, but do note that it connects neo-liberalism and global constitutionalism in a different way from the ‘elective affinity’ argument I make.

13 Global constitutionalism does not preclude constitutional courts from being sceptical about neo-liberal policies and, as noted below, gives those courts some doctrinal resources if they choose the sceptical path.

14 If the argument made in this paragraph is correct, there is nothing anomalous about the near-simultaneous adoption of neo-liberal policies and the constitutionalisation of social welfare rights in some Latin American constitutions of the late twentieth century.

15 BVerfG 7, 377 (11 June 1958) (holding unconstitutional a statute restricting the ability of pharmacists to open new pharmacies if doing so would weaken the economic position of nearby pharmacies); 53 BVerfGE 135 (1980) (holding unconstitutional a ban on selling puffed-rice candies covered in chocolate; the justification that the ban would protect consumers who might mistakenly believe that they were buying a chocolate bar was insufficient).

16 I suspect that global constitutionalism is committed to a proportionality doctrine, though I cannot figure out how exactly one could make the case; examining monitoring bodies’ reports, for example, is unlikely to tell us anything about the use or failure to use proportionality.

17 Tushnet, M, ‘Making Easy Cases Hard’ in Jackson, V and Tushnet, M (eds), Proportionality: New Frontiers, New Challenges (Cambridge University Press, Cambridge, 2017). The argument, in brief, is that pluralist bargaining might produce a set of statutes in which one or more fail proportionality analysis but where large social gains result from other statutes that could not have been enacted independently of the problematic ones.

18 HCJ 2605/05 The Human Rights Division, The Academic Center for Law and Business v Minister of Finance (19 November 2009), invoked concepts of human dignity to hold unconstitutional the privatisation of prisons. That decision is, so far, an outlier on the global scene. But, even were it to become settled into globalised constitutional law, the decision’s scope would almost certainly be limited by the special nature of prisons (and perhaps the military in its core functions). They are, for example, quite different from rail services, which also have been privatised as part of the neo-liberal programme.

19 On the level of rhetoric, the power of the ‘marketplace of ideas’ metaphor in free speech theory certainly resonates with the neo-liberal affection for markets, and the fact that the metaphor remains powerful even in the face of substantial critiques suggests another type of elective affinity between neo-liberalism and global constitutionalism.

20 See, e.g., Bowman v United Kingdom [1998] ECHR 4 (invalidating £5 limit on independent campaign expenditures); Harper v Canada (Attorney General) [2004] 1 SCR 827 (upholding as a justified infringement on freedom of expression a limitation on independent expenditures of $150,000).

21 Manuel Castells points to systemic issues associated with campaign finance. ‘Political actors are chronically underfinanced, and the gap between necessary expenses and legal revenues has grown exponentially, and continues to grow. Thus, after exhausting all legal sources, personal contributions, and business deals, parties and politicians often resort to the only real source of money: under the table contributions from business and interest groups … .’ Castells, M, The Power of Identity (Blackwell, Oxford, 1997) 337–8. He offers an extended example of ‘the politics of scandal’ associated with a campaign-finance scandal involving the Spanish Socialist Party. I wonder whether these problems might not be differentially associated with leftist parties, who have fewer extremely wealthy patrons than conservatives parties, and so might have a greater need for under-the-table deals.

22 A short version of the argument: Under modern circumstances disseminating political views requires spending money if the dissemination is to have any effect: hiring someone to craft an appealing presentation, paying someone to print pamphlets, buying space in newspapers or time on broadcast media, and much more. Regulating a person’s ability to spend money on these matters rather directly impairs her ability to disseminate her views – in practice, it probably interferes more substantially than would a threat to fine her for making a speech on a street corner.

23 See Kuhn, R, The Media in France (Routledge, London and New York, NY, 1995) 52–3 (describing decisions by the French Constitutional Council substantially limiting the government’s power to enforce strict limits on ownership of multiple media outlets). One can see the problem clearly when the media outlet is something like a hobby for an extremely wealthy person. Such hobby outlets need not make money for the publisher, who supports them – and the production of material that satisfies antecedent consumer demand – simply to be able to tack on the publisher’s political views. Again, standard views of free expression would protect the publisher’s dissemination of his or her political views in weekly or daily pamphlets, and the fact that the political pamphlets are surrounded by non-political material designed to satisfy consumer demand would be irrelevant.

24 The cases are discussed in Guardiancich, I, Pension Reforms in Central, Eastern and Southeastern Europe: From Post-Socialist Transition to the Global Financial Crisis (Routledge, Abingdon and New York, NY, 2012).

25 See Wise, P, ‘Portugal’s Constitutional Court Threatens Country’s Bailout’ Financial Times (24 October 2013) (describing the court’s decisions).

26 Perhaps the effort to provide such an account might reconcile the view of globalised constitutional law as a challenge to neo-liberalism with the view offered here of neo-liberalism’s relation to domestic constitutional law (I thank an anonymous reviewer for this thought).

1 Harvard University Law School.

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