by Justin Kempf
A review of Anti-Constitutional Populism edited by Martin Krygier, Adam Czarnota, and Wojciech Sadurski and Constitutionalism and a Right to Effective Government? edited by Vicki C. Jackson and Yasmin Dawood.
The Purpose of a Constitution
Among the most useful resources for those concerned about democracy is found at Constitute. It brings together 202 different constitutions including the most powerful democracies and autocracies. At first glance, it strikes many as surprising to find autocratic regimes with written constitutions. But China, Iran, Russia, and many other autocratic regimes all have formal constitutions. Indeed, they even guarantee many liberal rights even though they interpret those rights differently than liberal democratic regimes. Nonetheless, it raises an important but fundamental question. What is the purpose of a constitution?
Two recent books approach this question from different perspectives. At the same time they both come from what I’d call a liberal democratic constitutional approach. Neither book defends or condones what Mark Tushnet describes as “Authoritarian Constitutionalism.” That’s an entirely separate subject. Nonetheless, Anti-Constitutional Populism does examine how populists have weakened constitutional constraints on elected officials. It emphasizes the importance of individual rights and institutional checks on political power. Meanwhile, Constitutionalism and a Right to Effective Government? emphasizes the importance of governance. In other words, constitutions both impose limits on political leaders, but they still expect leaders to deliver effective governance at the same time.
Rights and Duties
Nonetheless, the idea of a right to effective governance comes across to me as misguided. It tries to inject a notion of political constitutionalism into a liberal framework based primarily on rights. Perhaps a better approach is to describe effective governance as a duty or obligation of government. Joseph Fishkin emphasized the importance of affirmative constitutional obligations on the podcast and in his book with William Forbath The Anti-Oligarchy Constitution. Many of the writers in Jackson and Dawood’s volume agree with Fishkin that constitutions obligate officeholders to deliver effective governance.
This approach clashes with the traditional liberal notion of constitutions. Liberal constitutionalism largely argues constitutions merely constrain political leaders and institutions. They allow for effective governance, but do not rule out the possibility of ineffective governance. Indeed, many populists weaken institutional checks on their power in the name of effective governance. Often the outcome is ineffective governance through increased corruption due to a concentration of power in the executive.
Hungary is a prime example where a weakened judiciary has strengthened the power of the prime minister. It’s important to note Hungarian politicians have not necessarily violated the constitution, but rather rewritten it to weaken checks on executive power. Still, some might applaud the shift of political power from appointed officials to elected officeholders. But it has not enable what some call ‘good governance’ or even more effective governance. Rather it has legitimized political corruption as those with political connections become rich through government contracts. Moreover, it has allowed a descent into competitive authoritarianism through the manipulation of electoral laws and political rights.
Democracy and Effective Government
At the same time, the greatest threat to democracy remains ineffective governance. The strength of democratic government remains its ability to institutionalize regular course corrections of political directions through elections. It allows voters to demand a change whether it’s because leaders are ineffective or because they simply want a fresh perspective in charge. However, democracies fail when elected leaders repeatedly perform poorly. Eventually, voters blame the institutions or even democracy itself rather than the politicians.
Indeed, constitutions do provide more than just constraints on political power. Most constitutions also include aspirational clauses. Whether it’s in the preamble or embedded throughout the document, constitutions make known their political values. Moreover, other foundational documents also provide the underpinnings for a constitutional order beyond the written constitution. The United Kingdom is an extreme example where a collection of foundational documents compose a constitutional order without any formal written constitution.
Still these two books offer different approaches to a problem of contemporary constitutionalism. Indeed, the problem transcends traditional ideologies of the left or the right. Do constitutions merely foster inaction or can they also compel leaders to action as well? Moreover, what are the unanticipated consequences as we allow for what some call constitutional pluralism? The two volumes mentioned tackle these questions from a variety of contributors. They both help us grapple with the meaning and purpose of a constitution.
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