The Constitution of Freedom

OUP CORRECTED PROOF – FINAL, 01/10/17, SPi
Introduction
‘When the fundamental principles of government, through fatal perversion, or

through the errors, (ever incident to all human institutions) which by the lapse
of time have crept into it, operate in a mode repugnant to the purposes for which
they were originally framed, namely, the constitutional freedom and liberty of the
people, it seriously becomes every reflecting person and well-wisher of his country
to investigate the cause from whence it arises, and to point out a remedy.’
Walter Honywood Yate1
‘The heights of popularity and patriotism are still the beaten road to power and
tyranny.’
David Hume2
Suspicion is the first duty of the constitutionalist. This goes against the classic understand-
ing of the aim of the practical study of constitutions. As proposed by Aristotle (384 bce–322
bce) the purpose is to guide ‘the good lawgiver and the true politician’.3 An early version
of this book (Limiting Government, 1995, 1999) was written in that tradition. Beyond the
Aristotelian aspiration to enable things to be carried out by law-making, as manual labour-
ers do things, it intended to provide a critical tool to politically engaged citizens in the
period of transition from communism.4 After all, in a democracy political acts of gov-
ernment cannot be limited to expert law-makers. It was genuinely believed, with the
naïveté of Aristotle, that the constitutional frame of public life will matter not only for
special interest groups who attempt to hijack government to promote their own good, but
also for people who are governed.
At the time, the challenge was not only that constitutionalism was too abstract as an
ideal, but that it was impractical. Constitutionalism as a commitment to limiting govern-
ment needed a justification, as it slowed down the exercise of political powers (even
when a particular decision was most popular) by requiring institutions to be separate
and providing ample room for disagreement before a compromise could be reached.
Constitutionalism also needed justification because—due to its insistence on the rule of
law and the protection of fundamental rights—it removed certain options from the realm
1 W. H. Yate, Political, Historical and Analytical Arguments, Proving the Necessity of a Parliamentary Reform
and Pointing Out the Means of Effecting That Important Measure without Injuring Individuals or Convulsing the
Nation, vol. 1 (1825) x.
2 D. Hume, Of Public Credit [1752], 166, in D. Hume, Political Essays, K. Haakonssen, ed. (Cambridge
University Press, 1994) 176.
3 Aristotle, Politics, H. Rackham, trans. (Harvard University Press/Heinemann, 1944) IV.1.1288b27.
4 On the Aristotelian programme of political science see Fr. D. Miller Jr., Aristotle, 79, in Fr. D. Miller Jr. and
C.-A. Biondi eds., A Treatise of Legal Philosophy and General Jurisprudence. Volume 6: A History of the
Philosophy of Law from the Ancient Greeks to the Scholastics 2nd ed. (Springer, 2015) 86.
The Constitution of Freedom: An Introduction to Legal Constitutionalism. András Sajó and Renáta Uitz.
© András Sajó and Renáta Uitz 2017. Published 2017 by Oxford University Press.
2 Introduction
of political possibilities even when they appeared only just and fair, and were supported by
the people. But at the time this appeared to be a small price to pay for freedom, in principle.
The constitutional moment of the late 1980s has faded. The premise—once taken for
granted—that constitutionalism is attractive became questionable in ordinary politics and
in the high courts of intellect (and even in ordinary courts of law). The interest in stand-
ing up for and creating genuinely constitutional systems has also diminished in the public
eye (pace constitution-making in the aftermath of the Arab ‘Spring’).
Suddenly the fragility of constitutional democracy became a clear concern, and its col-
lapse a real-life scenario. The constitution and democracy are turned against each other
where the constitution can be used to forget that it is first and foremost about the preven-
tion of despotism. This makes the need to understand the remedies of constitutionalism
not only relevant, but also imperative.
Constitutional democracy is more fragile and less ‘natural’ than autocracy. Unfortunately,
more and more people find autocracy attractive, because they were never forced to under-
stand or imagine what despotism is. They also conveniently failed to protect themselves
emotionally and intellectually against the cult of simple solutions. Generations who lived
in stable democracies with the promise that their enviable world would become the global
‘normal’ find this difficult to conceive. It is difficult, but never too late, to look at one’s own
constitutional system as one that is fragile and in need of constant attention and care.
Thereupon recapitulating how constitutionalism protects us and how it can be undone
with its very own means became the task of this book.
Constitutionalism is on the defensive, among other reasons because it is associated
(historically in the nineteenth century) with liberal political movements and with classic
liberalism as a political philosophy (not in the sense of welfarist liberalism as understood
in the U.S. today). The relation is undeniable, even intimate. Most (but not all—see e.g.
Thomas Hobbes (1588–1679)) of the ideas of constitutionalism were developed by liberals,
liberal political movements fought for it, and many of these actors identified themselves
and constitutionalism as ‘liberal’. Admittedly different forms of liberalism were reflected in
different sorts of constitutions. For John Stuart Mill (1806–1873) it was ‘elitist’ in view of
the lack of maturity of people, for Giuseppe Mazzini (1805–1872) or his Hungarian con-
temporaries it was ‘nationalist’, to give a sense of the diversity. This relationship between
liberalism and constitutionalism does matter in one major way: the vocabulary, the way
the world is structured, does matter. Constitutionalism was made possible (and will
remain possible) because people concerned with the freedom of their society and their
own liberty thought of themselves as liberals liking freedom. It will make a difference
when people become afraid to admit that they are liberals. In the current—considerably
conflated, if not artificial—public assumption about a looming crisis of constitutional
government liberalism (and not only free market liberalism) is turned into a devilish con-
spiracy theory breeding weakness and anarchy. This is a major (and hopefully reversible)
change not only in mood, but also in thinking about politics under government.
The attacks on constitutionalism accompanied it like its shadow from the very first
attempts to build a new, secular political order by collective human design. Liberalism was
called a satanic conspiracy for two centuries, and had been stigmatized already in the 1930s
for not confronting the fundamental social issues, shying away in a dogmatic, short-sighted
manner from providing an interventionist answer to the fundamentally pressing issues of
mass unemployment and insecurity. This dogmatic carelessness is, so the accusation goes,
what pushed people to fascism. And the lack of sensitivity, due to liberal individualism and
egoism, would now have similar consequences. People are told that they feel abandoned
with their concerns. There is a shift in public sentiment towards radical populist simplifi-
cations and the resulting tough simple answers. Liberalism has been turned into a matter
Introduction 3
of shame which creates serious difficulties for the defence of constitutionalism and under-
mines its legitimacy.
What will happen to those who are made to believe that liberalism (and the freedom of
other persons) is to be abhorred? This story is unfolding at the moment and the spectacu-
lum is observed with horror by a paralysed audience.
The populist accusation uses the blood libel of droit l’hommisme (humanrightism).
According to the populist litany, constitutionalism with its fundamental rights mania
simply disregards the issues that are of interest to ordinary folk (such as immigration as
invasion, austerity as global conspiracy, etc.). This is a pointless attack on a straw man.
Constitutions do not prescribe immigration policies. They provide a space to discuss and
solve whichever problem people wish to tackle; they provide the proper deliberative forum
with rules to ensure a meaningful exchange of ideas.
Until recently all political players, welfare liberals (in the U.S. sense of the term), socialists,
and conservatives all seemed to agree by and large on what individuals are free to do.
Government was meant to work without trampling freedom, without making it illusory or
impossible. In the political rhetoric there is still ample reference to freedom, but in the sense
of consumer interest satisfaction. With the emergence of new populism (right and left5), the
initial base-line agreement about individual liberty is disappearing. The contemporary attack
on constitutionalism forewarns of a tyranny of human rights, a contagion that makes gov-
ernment affable because it gives in to the rights of the individual. The resulting constitution-
ally protected diversity is proof of governmental weakness for the friends of simple
solutions. For them fundamental rights are the culprit: rights not only permit but also
encourage people to be different, while the sense of the community of ordinary people dis-
appears. It matters little if those who are different are migrants, refugees, or natural born
compatriots of a different faith (or no faith). For the insecure seeker of security, liberalism
opened up the protective walls of the nation state to globalization, permitting the foreign
element to take over; with globalization came trade agreements and went local jobs, came
terrorist attacks and went the sense of domestic tranquillity of well-nourished couch potatoes.
In the age of global terror attacks and threats, constitutionalism, and its side-kick, human
rights, are easy culprits. They nurture babysitting terrorists, instead of responding fast and
hard to the smallest hint of threat of terror. The (populist) backlash brings a return to
national sovereignty, national identity, security of national borders. Invent for us a national
security state! Of course, little is new under the sun. As a reality check, take the example of
the 1986 anti-terrorist legislation in France, rather than the current one (which includes a
state of emergency), as we cannot foresee where the state of emergency will take us. A series
of solutions, of dubious constitutionality (separate special courts, the punishment of terrorist
intentions, the easing of the conditions under which suspects could be arrested) were intro-
duced in 1986, though none of this became widespread practice. But in a fledgling constitu-
tional state, all isolated lapses, all exceptions raise the possibility of returning to oppression,
and the granting of exceptions runs the immediate danger of becoming accepted practice.
On an even less optimistic note: the contemporary challenge to constitutionalism consists in
a slow erosion supported by the indifference of public opinion, and instigated by populist
fear, riding on anti-elitist sentiments and using democratic potentials.
Thus, it became imperative to explain what constitutionalism means for the constitu-
tional legal order and the political community which is meant to live by it. This time the
intention is less to guide technically proper constitution-writing and interpretation, but to
show what is at stake in the debate on constitutionalism. Our intention is not apologetic
5 Chantal Mouffe and the late Ernesto Laclau, and their followers, in a radical and uninhibited democratic
temper, argue that populism actually constitutes the essence of democratic politics.
4 Introduction
(and certainly not celebratory), nor purely defensive: we write to demonstrate why consti-
tutionalism should continue to matter. In doing so we will leave constitutional facts to
speak for themselves. Muses and technicians of classic constitutions are lined up alongside
the inspired architects of more recent ones to show what constitutionalism can be about
and what constitutions have become in constitutional law.
Although the book remains descriptive, we do not deny that we regard constitutional-
ism to be central for political organization. While many people value freedom less and
less, we find that all the attacks on constitutionalism and deviations from it are equally
dangerous to freedom and, more broadly, to civilization. There is little this book can say
about such fundamental disagreements, except that constitutional history in itself should
be sufficient explanation for the priority of freedom. We are all free to choose what we do
not wish to learn from history.
Stories of constitutional success and failure are told here to give a sense of the current
threats, admitting that the record across centuries and continents is uneven. While ideas
did play an important role in constitutional imagination, we do not believe that constitu-
tions are simply practical applications of political philosophies. Constitutional theories are
presented to the extent they seem relevant as constitutional facts or when they were instru-
mental in the formation of constitutional solutions. Context is woven from high-minded
aspirations, cold political calculation, weaknesses for pet projects, and the limited nature of
human imagination. Hence we will introduce constitutional practices and the motivations
of constitutional actors behind them.
The book builds on numerous examples of fundamental political anomalies and abuses
of power. Although instances of abuse of constitutional language and form, the frailties of
constitutionalism which have always been common in constitutional history, they seem to
have become the new chic for fans of illiberal democracies. To put these in perspective the
first set of examples is intended to revive respect, if not enthusiasm, for fundamental insti-
tutional and procedural choices associated with constitutionalism. Sadly, these options
are easily disregarded when people forget what they are protected from by this design. This
is meant as a reminder that there is value in what may look like stale, inconvenient, or
empty formalism.
The second set of illustrations is meant as a practical reminder of what to be suspicious
about and what to trust. Constitutional formalities are still respected to the letter but self-
proclaimed and closeted illiberal democrats decouple familiar constitutional solutions or
principles from their original context and function, and recycle them to perpetuate their
own powers. This is constitutional chicanery, and it needs to be called out wherever it
becomes manifest.
Some kind of ‘arbitrary evolutionary selection’ is going on here. The autocrat-in-making
selects from the institutional repertoire of respectable democracies a measure (often quite
problematic, or at least unique, even in its own environment) and transfers it to a context
where the conditions are different, and society’s democratic immune system has weak-
ened. Like a virus that was contained in its original environment, in the new circum-
stances the implant not only ceases to carry out its original constitutional functions but
turns against the host. For a solution being selected by the autocrat-in-making it has all
the evolutionary advantages. The virus replicates successfully and with little resistance: the
traditional defence mechanisms were late even to detect it, much less to fight it. Take
the neutral example of public procurement. This relatively good technique is used to avoid
cronyism. With a little doctoring the terms of the call for bids can be written in a way that
favours political insiders (or good friends). If this does not do the trick of sending government
contracts into the right hands (and pockets), those who legislate can always slip into the
law a cosy clause that exempts public works of strategic national interest or national
Introduction 5
security from public procurement. Who could object to the protection of the national
interest, especially in a world of ‘increased national sovereignty’? It is left to government
which objects fall into this category. This is again perfectly legitimate according to the
theory of delegated legislation and executive functions.
These considerations matter for complacent established democracies, too. In contem-
porary democracies well-disciplined political parties run coordinated branches of govern-
ment already. With little change in the constitution a hegemonic party can create sufficient
dependency and dispose of sufficient administrative tools and control to monopolize
and perpetuate power in an electoral democracy. The sentiment was already captured by
Thomas Jefferson, Founding Father and future U.S. President, in 1781:
With money we will get men, said Caesar, and with men we will get money. Nor should our
assembly be deluded by the integrity of their own purposes, and conclude that these unlim-
ited powers will never be abused, because themselves are not disposed to abuse them. They
should look forward to a time, and that not a distant one, when corruption in this, as in
the country from which we derive our origin, will have seized the heads of government,
and be spread by them through the body of the people; when they will purchase the voices
of the people, and make them pay the price. Human nature is the same on every side of
the Atlantic, and will be alike influenced by the same causes. The time to guard against
corruption and tyranny, is before they shall have gotten hold on us.6
Riding the populist wave, the autocrats-in-waiting get into government positions with the
help of money. Once in control of the state’s resources, they get into corruption. Through
corruption they get access to more money. With money they get the men to re-elect
them. So they get even more money; déjà vu, all over again.
Although we find it imperative to reinvigorate popular and intellectual commitment in
constitutionalism, our concern is not normative. Individual freedom has supreme importance
not only for any political community, but primarily because it is essential for human exist-
ence and well-being. Our intention is to present social and political practices of govern-
ment that endanger and allow freedom, and to shed light on the social constraints that
make legal constitutionalism into an effective shield and attractive form of government. By
showing that constitutional failure (failed governments and states) originates in the disre-
gard of these fundamental rules and practices, we refer to socially compelling reasons
behind the choice of constitutionalism as a basic background principle of government.
Our bestiarum of constitutional solutions should stand as a stark reminder: on the
parchment on which the words of constitutions are written any ink will leave a trace. The
reader should be reminded that a constitutional solution is never correct in itself, in isola-
tion. This is an important caveat as, when it comes to populist democracy, long-abandoned
and discredited elements are reinvented without safety warnings. For example, one of the
well-received demands of populism is the binding mandate of deputies combined with
recall. The history of representative government that started to come alive on the premises
of the free mandate has more than one lesson to these recall enthusiasts.
Comparative constitutional analysis offers the best methodology here: it provides a real-
ity check. Comparative analysis is the cure to the proud nationalist attitude that paints
national peculiarities, as if it were a perfect system, and makes one believe that national
exceptionalism must serve as a model. While we are committed to comparing and con-
trasting examples from the annals of constitutional history, we are not engaging in s ystemic
comparative constitutional legal analysis. We do not intend to offer a nutshell of U.S. or
Indian constitutional law. But no national system can be understood without putting it
6 Thomas Jefferson, Notes on the State of Virginia (1781), http://avalon.law.yale.edu/18th_century/jeffvir.asp.

6 Introduction
into a comparative perspective. Otherwise what exists will be seen as the only possible
option. It is not by accident that today comparative politics has become one of the three
main disciplines of political science.7
To offer some insight we rely on the most influential or formative models and also study
the most relevant conflicts which are not necessarily coming from model countries. More
over, many or most states of the world are unfinished projects of democracy. Consti
tutionalism and constitutional ambiguity are highly relevant for this book which seeks to
provide insight for people struggling with constant transition into and away from consti-
tutionalism. This tension is present in established democratic systems, where one of the
problems is the wilful denial of this possibility. The attitude of self-confident complacency
is taken for granted; the arrogance of ‘this is how we do it and, therefore, it is good’ assists
the forces interested in the erosion of constitutionalism. As a result, constitutionalism will
become a mere figment, like the vestiges of the Roman Republic after Rome became an
empire.
It is for the reader to draw normative conclusions in view of the reasons and conse-
quences of such constitutional practices. Rendering a true account of what happens in
government, especially in those countries which claim to be democratic, and by identify-
ing the underlying principles of action we can shed light on the ways constitutionalism
works. This is an empirical approach; with a dose of immodesty, we could add that we
follow Hume and Montesquieu. To our regret, the crucial social and cultural elements of
their analysis will be left out, as we concentrate on the legal and related political compo-
nents. This is partly because of our intended audience and also because constitutionalism
is much more legalistic today than ever before. But the challenge of the age, the contem-
porary attack on constitutionalism, also invites this one-sided focus on the legal in consti-
tutionalism.
Those who argue that constitutionalism is irrelevant refer to the poverty of constitu-
tional law. Those who consider liberal constitutionalism to be the source of incapacitat-
ing governments in answering contemporary problems would like to undermine precisely
the legal institutions of constitutional democracy. We concentrate on constitutionalism as
it restricts and constrains government power by limiting government. This is admittedly a
negative, even one-sided approach. We are fully aware of the coordinative functions of
constitutionalism: a constitution enables efficient government. But as Stephen Holmes has
convinced us, limiting power does contribute to more efficient government and coordin-
ation, just as limiting majority rule in democracy helps democracy.
It was the need to emphasize the limiting power of constitutionalism that convinced us
to dare to paraphrase a classic for the title of our book. The title is an homage to Friedrich
Hayek’s The Constitution of Liberty. One does not have to share Hayek’s assumptions about
spontaneous order, and even less his economic theory about the market and the role of the
state to accept that the scholarly and civic task is to indicate what is and is not admissible
in a free system, in a free society that operates most effectively.8
* * *
The first three chapters of this introductory book address foundational issues related to
constitutions and constitutionalism as reflected in influential ideas, political practices, and
social dynamics behind the scenes.
Chapter 1 opens by unpacking the concept of constitutionalism and explains its relation
to legal constitutions. We start from the basics: what makes a document (whether an agree-
ment or an imposed charter) into a constitution? Does constitutionalism, a commitment
7 See in this sense e.g. D. Caramani, Comparative Politics (Oxford University Press, 2011) 2.
8 Fr. von Hayek, The Constitution of Liberty (Routledge, 1960) 231.
Introduction 7
to curbing the arbitrary exercise of sovereign (political) powers and on limiting govern-
ment in order to protect liberty, make government weak? Constitutionalism recognizes
that constitutions are made by the people for the people, but what makes ‘a people’ adopt a
constitution? This question logically leads to another one: what makes ‘a people’?—to be
answered later, in Chapter 3.
These abstract questions are best answered in light of facts and experiences. Constitutions
are political products which come to life in particular local conditions, they respond to
practical challenges, whether brought on by revolutionary sentiment or anti-democratic
convictions. Constitutions are inspired by the fears of their drafters triggered by unfortu-
nate experiences with government. The bargains and assurances which are written into
the constitutional text are all informed by the fear of a regrettable past, and of course, the
hope of avoiding similar mistakes in the future. Following a practical insight from liberal
thinking on constitutionalism, we argue that constitutions are best thought of as deeds
of pre-commitment for days which put even the wisest and most tempered political leaders
to a test.
Constitutionalism requires that constitutions be self-executory and capable of self-
defence, hence the key role of entrenchment. It follows from the legal nature of the consti-
tution that the mast to which the political-legal system is tied is a legally binding document
of supreme importance. The self-protection of the constitution by entrenchment is dem-
onstrated by the example of constitutional amendment practices. Challenges from within
make rules of constitutional amendment a subject worthy of closer examination for
defenders of constitutions as a means of limiting political power (and not as a means of
political self-promotion).
Chapter 2 places the idea of the constitution and limited government into the deep
waters of political and social conditions where the constitution is meant to endure. The
chapter refers to key events of the history of constitution-making, enough to reflect on the
most tangible features of constitutions: the manner in which they engage with the identity
(or, more precisely, the identities) of the political community they stand for. The more
diverse the people are, the trickier it is to govern them under one charter of government
which works for all. This calls for deeper reflection on homogeneity and pluralism as pre-
conditions (and challenges) to the constitutional order. Committing to an ideal of consti-
tutional identity which unites a diverse people to govern themselves according to a set of
rules and principles acceptable to all has come under attack with plural concepts of the
good life, in particular, with the return of religious fundamentalism. Constitutions which
are committed to preserving freedom are premised on equal respect for all. When reflect-
ing on equality, we also take a closer look at its precursors and alternatives (toleration and
tolerance) to give a better sense of the significance of ground principles.
As even this brief discussion suggests, the continuing challenge is to make the actual
people respect the system created on its behalf and also to make the people exercise con-
stitutional control over the power they create. This is how the people become an integral
part of constitutional checks and balances. Chapter 3 is an invitation to meet the people,
both the imaginary and the actual, the creative, disruptive, and destructive force behind
constitutions and government. We trace the evolution of universal suffrage and confront
its consequences, including the perils of majority rule (and its tyranny) for a diverse
society. Democracy (both direct and representative) is pitched here against constitutional-
ism, to demonstrate how their uneasy interaction shapes constitutions. Having explored
the contribution of democracy to constitutionalism we turn to constitutional solutions
tempering majority rule. Curbing majority sentiment serves objectives which are at the
core of constitutionalism. It serves such goods as a stable government and the protection
of minorities, i.e. the equal liberty of all.
8 Introduction
Chapters 4 to 7 offer a glimpse into the engine room of the legal constitution: separation
of powers and checks and balances. And it is time to confront the contemporary accusation
that separation of powers is meaningless, and that together with checks and balances these
are metaphors without explanatory power. Allegedly, these concepts are of no relevance for
government where efficiency is what matters and where tyrannophobia inherited with
eighteenth-century concepts and twentieth-century atrocities is a misplaced sentiment
that cannot suffice to build an operational government.
Chapter 4 provides a general introduction to the very idea of separating distinct govern-
mental functions into at least three branches (horizontal separation). Separation limits
centralization of power and this makes autocrats and populist demagogues angry (a good
sign!); they insist on unity and harmony (Concordia) which are only upset by the anti-
democratic institutions of separation of powers advocated by nasty liberals who would
like to impose institutional barriers to the genuine formation of popular will. The chapter
examines how governments based on separated or at least divided powers work, in a per-
petual balancing exercise. Balance is a most unfortunate metaphor; what it refers to is that
the relation between the branches is precarious, and whatever is believed to be an equilib-
rium is disturbed way too easily. Constitutional rules were meant to provide the branches
of power with sufficient tools to counter the self-aggrandizement of the other branches,
instead of bringing government to a halt. But the tools available for counterbalancing may
turn out to be insufficient, among other reasons because the people who serve in the par-
ticular department of government have lost the appetite to use them. The most notable
contemporary challenge to constitutionalism is the overwhelming size and force of the
executive branch which original ideas on separation of powers could not predict or pre-
vent. This chapter looks at the overall picture of checks and balances while institutional
details are provided in Chapters 5–7.
Chapter 5 is devoted to separating government into distinct layers, primarily in federal
arrangements (vertical separation). There is more to federalism than being a way of organ-
izing state power. Although in practice it may not always manage diversity, it already delivers
when it succeeds in defusing potentially fatal tensions. And, where it works, it serves
both individual liberty by increasing the opportunity to choose a community and the
prevention of despotism by making more cumbersome the monopolization of power in
the centre.
Chapter 6 looks at the legislative branch and its own animating force, parliamentarism.
After a historical introduction it shows how democracy found a home in representative gov-
ernment. Gradual developments led to disillusionment, and after World War II Parliament
was reinvented as a rationalized law-making factory where political parties had obtained a
manner of control of power that was hardly on the constitutional horizon. (This discussion
of parliamentarism complements the picture offered in Chapter 3 on representation.) This is
followed by the nitty-gritty of modern legislative procedure, because it is at the level of tech-
nicalities (bicameralism, committee work, factions, party discipline, protection of the oppos-
ition) that the fate of democratic control and checks and balances is determined. The
legislature is the site of representation as well as of deliberation, but it is fundamentally refur-
bished by party discipline. Its rules of operation have to make room for both functions.
Here again the legal logic of parliamentary operations is important for the protection
of constitutionalism: without understanding the role procedures play in legislative work
democrats become blind to parliamentary manipulations (for example, how committees
of inquiry are highjacked by the majority). Law-making is taken over by the executive
branch in the name of efficiency and stability (see, in particular, delegated legislation) but
there exist constitutional counter-strategies which have been mobilized to keep at least the
core legislative function in the hands of the representatives of the people. As the legislature
Introduction 9
is the most representative branch and the only site of open deliberation, it is essential for
constitutional government. It is therefore essential to keep its work transparent and rele-
vant to how government works.
After skirting around it for so long, in Chapter 7 we meet the executive face to face. This
is the most powerful, most numerous, and most amorphous of the branches of government
today. The make-up of the executive is as worthy of closer examination as its operation.
Confidence in the cabinet or prime minister in parliamentary systems and the related prob-
lems (which is to a great extent a matter of election design) are central in the emergence of
cabinet or prime ministerial dictatorship. Here again technicalities matter: several typical
solutions of institutional design for constituting the executive branch are reviewed in
light of historic experiences involving particular institutional design flaws. To trace the
self-perpetuation of the executive branch, the chapter explores its origins and the exercise
of key executive powers (among them executive prerogative, executive rule-making, and a
very special constitutional genie on which modern government runs: the making of the
budget). Although the executive is very successful at self-aggrandizement, the constitu-
tional record suggests that it is possible to keep it at bay without making it incompetent.
Chapter 8 invites the reader to an exhibition of various forms of the rule of law
(Rechtsstaat, état de droit), one of the most elusive but vital components of constitutional-
ism. Here we consider formal and substantive elements of the rule of law with emphasis
on its realization and enforcement by the administration and courts. In this respect, the
notions of judicial independence and impartiality play an important role. Notwithstanding
the inconveniences and dangers of legal formalism from the constitutional perspective, the
chapter demonstrates that the much-condemned judicialization of politics is also about
the integrity of the constitutional system as a whole.
Constitutional adjudication is the most advanced form of judicialization: it extends the
rule of law to legislation. Chapter 9 opens with an overview on the development of consti-
tutional review power and its prevailing modalities around the globe, with an eye on spe-
cialized constitutional courts. With a focus on the constitutional review of legislation we
explore what interpreting a constitution means in practice and whether fears of judicial
self-aggrandizement through constitutional interpretation are justified. In an era of
political backlash against courts performing constitutional review (with well-documented
instances of court packing and other creative assaults at courts) taking the constitution
away from the courts would do more harm to constitutionalism and especially to indi-
vidual liberties than the occasional judgment giving effect to unwritten constitutional
principles or rights could ever do to the political actors of the day. For the rainy days to
come techniques of disciplining courts are analysed in detail in the hope that the reader
will become able to distinguish genuine and appropriate reforms of the administration
of justice from constitutional chicanery intended to silence judicial criticism of abuse of
the constitution.
Since this book is about protecting individual freedom from government encroach-
ment, Chapter 10 takes a closer look at how constitutions handle fundamental rights. This
is an area where lots of myths converge about ‘rights as trumps’ and powerful courts acting
as shields. The reality could hardly be more different. The language of fundamental rights
may be universalistic, full of uncompromising general principles. But with few exceptions
made for human dignity or on the prohibition of torture (but not even for the right to life),
constitutional clauses on fundamental rights themselves offer opportunities for limiting
rights. Prevailing techniques of ascertaining permissible limitations on fundamental rights
(especially proportionality analysis) provide ample opportunity to make rights not so much
into trumps, but rather modest reminders about what the constitution was meant to stand
for when it imposed limits on the powers of the government.
10 Introduction
The last two chapters deal with contemporary challenges which are often larger than the
life of any one constitution.
Chapter 11 discusses the constitution in crisis situations, under stress, with special atten-
tion to three disturbing scenarios. The classic form of lifting constitutionalism occurs
under the guise of emergency, also known as—quite literally—the moment of creation for
dictatorship in ancient Rome. Emergency powers are prevalent in constitutions of all kinds
(democratic and less so). The official purpose of emergency powers is simple: to restore
constitutional normalcy after a sudden shock. The appeal of emergency powers is also
clear: a moment of constitutionally authorized dictatorship is hard not to take advantage
of for the ‘greater good’. The idea that constitutional democracy should be able to defend
itself from its enemies sounds attractive too. But like constitutionalized emergency, this
militant democracy, invented in the 1930s, remains ambiguous and an invitation to and
justification for abuse. In the war on terror the preventive state has become a new, disturb-
ing modality of government, complete with a toolkit which presents a danger to liberty on
at least the same scale as the perpetuation of emergency powers does. Despite the threat it
entails to constitutionalism, the preventive state appears hard to curb in a climate of fear.
Chapter 12 tackles a relative newcomer, multi-layered constitutionalism. The premise
of integration was a new, supra-national constitutional entity built on shared values and
principles, to be clarified ‘on the go’. The emerging multi-layered constitutional web took
away some of the powers of the sovereign constitution without necessarily providing
equivalent protection and self-government. It also enhanced the powers of the executive
branch on the supra-national level without offering adequate checks on it. Ironically, the
loudest challengers of the multi-layered constitutional reality are those nation states which
suddenly faced limitations on their powers which they did not like. As a result, constitu-
tionalism has come under attack through no fault of its own, at a time when the bonds it
had created were loosened by an experiment which misused its name.
Various models of multi-layered constitutionalism invited us to place our hopes in a
multi- or supra-national protection of constitutional values. The mistake was that it was
forgotten what Solzhenitsyn had foreseen in his better days, while still persecuted in the
Soviet Union:
The trouble with pinning our hopes on [mature democracies] is that it eases our conscience
and weakens our will; we win the right not to struggle, the right to submit, to take the line
of least resistance and gradually degenerate . . . . Some say that it is impossible to oppress a
whole people indefinitely. That’s a lie! It is possible! We can see for ourselves how our people
have degenerated, how uncouth they have become, how indifferent they are not only to the
fate of the country, not only to the fate of their fellows, but even to their own fate and that
of their children. Indifference, the organism’s last self-preservative reaction, has become our
defining characteristic.9
Only if people feel, if not the attractiveness of liberty, at least the chill of being left without
freedom, then can (may) they stand up against siren songs of fear, hatred, and the comfort
of false identity. Of course, the constitutional arguments rehearsed in this book make little
sense for the closed mind-set of populists. For them liberty is what they already have (or
what they believe themselves to have). In this sense, they are like the Spartans for whom
liberty meant to be Spartan. (And to be like the Athenians was an affront.) Except that
Spartans had no choice but to be Spartans. For the contemporary populist citizen, their
9 A. Solzhenitsyn, In the First Circle, H. T. Willetts, trans. (Harper Perennial, 2009) 667; in the original ‘hopes
on the Americans’. Note that the reference to indifference finds echo in Tocqueville’s inert people, moulded not
by the brutal oppression of autocratic power but the mild despotism of democracy.
Introduction 11
Sparta remains a matter of the imaginary reality of sameness, subject to manipulated

choice. It is time to confront manipulation with constitutional imagination.
This is a daunting task, and requires understanding of the virtues of constitutionalism.
It starts with realizing that the tricks of constitutional chicanery applied by autocrats (and
autocrats in the making) is only the start and it will not stop as a matter of natural decency.
In some instances, it has already grown into electorally approved autocracy. Elsewhere
mildly despotic democracies are confronted with populism. The kind of resistance that is
to be expected from the citizens of mild despotism was described in detail by Tocqueville
already around 1835:
After having thus taken each individual one by one into its powerful hands, and having
molded him as it pleases, . . . extends its arms over the entire society; it covers the surface of
society with a network of small, complicated, minute, and uniform rules, . . . [Here power]
rarely forces action, but it constantly opposes your acting; it does not destroy, it prevents
birth; it does not tyrannize, it hinders, it represses, it enervates, it extinguishes, it stupefies,
and finally it reduces each nation to being nothing more than a flock of timid and industri-
ous animals, of which the government is the shepherd.10
A government which stands against constitutionalism cannot be a Good Shepherd.
10 A. de Tocqueville, Democracy in America [1835–40] vol. 2, H. Reeve, trans., F. Bowen, rev., P. Bradley, ed.
(Vintage, 1990) 318–19.
1
Constitutions and
Constitutionalism
1 Warning, Danger! Definitions 13

1.1 The concept of constitutionalism 13
1.2 The idea of a constitution 19
1.3 The legal constitution 23
1.4 Constitutions as a genre of political self-expression 27
2 Constitutional Fabric 29
2.1 The constitution of deals 29
2.2 The constitution of fears 31
2.3 The constitution of (dis)trust 35
3 Social Organization and Constitutional Order 36
3.1 The constitution of ambitions 36
3.2 The constitution of welfare 39
4 Pre-commitment: Ulysses Binds Himself to the Mast 41
5 Formalizing Pre-commitment: Entrenchment and
Amendment Rules 44
5.1 Entrenchment 44
5.2 Amending the constitution 45
6 Imperfect Constitutions and Threats to Constitutionalism 51
6.1 Mistakes 51
6.2 Threats to constitutionalism 52
‘What kind of trouble could befall a person who can govern his country with
ceremonies? What use would ceremonies be to the person who cannot govern his
country with them?’
Confucius
The Constitution of Freedom: An Introduction to Legal Constitutionalism. András Sajó and Renáta Uitz.
© András Sajó and Renáta Uitz 2017. Published 2017 by Oxford University Press.
1 War n i n g , Da n g er ! Defi n i t ion s
1 . 1 The con cep t of con s t i t u t iona l ism

Constitutionalism is a bundle of expectations about the conduct of government,1 while the
constitution is a political-legal construct. The idea(l)s of constitutionalism may be embodied
in the constitution, a legally binding document. These idea(l)s have such power that even
political actors respect them. But not all constitutions subscribe to constitutionalism, not
even today.
The two concepts are intricately entangled. Studying their transformation over time is
perhaps the only way to understanding them. In the hope of some clarity we will start by
explaining how the terms are used in the following pages.
Constitutionalism stands for a set of interrelated concepts, principles, and practices of
organizing and thereby limiting government power in order to prevent despotism. It sug-
gests that power may be limited by techniques of separation of powers, checks and bal-
ances, and the protection of fundamental rights along a pre-commitment. It seeks to
provide adequate institutional design to cool passions without forfeiting government effi-
ciency. By formalizing these solutions in a legally binding instrument (the constitution),
constitutionalism provides the necessary limitations of government (sovereign) power
and affirms the legitimate exercise thereof.
Political theorists started to use the term ‘constitutionalism’ at the beginning of the
nineteenth century, reacting to royal absolutism as well as to the ideas of a certain Citizen
Robespierre (1758–1794) who tested a bloody example of popular (crowd) despotism in
the French Revolution during the Terror. By the time the expression and the related polit-
ical movement emerged, the theory’s constituent elements were already in place, begin-
ning at least with the works of John Locke (1632–1704) (with important Greek, Roman,
and medieval antecedents). Notwithstanding this long tradition, constitutionalism cannot
be moulded into a single shape or form. Constitutionalism cannot give concrete prescrip-
tions for a constitution and governmental practices woven around it, but it can trigger
outrage and loathing. Even if the standards of specific constitutions vary, one does not
only feel when constitutionalism has been violated, one can prove it. We recognize consti-
tutionalism, or rather its violation, primarily by experience. Here lessons of despotic gov-
ernments become an especially useful resource. Our attitude towards constitutionalism is
similar to that of Augustine (354–430) towards God. The practising bishop and future
saint said that he could not define God, but he knew what sacrilege was: irreverence to
sacred things which is injurious to God.
Constitutionalism is often described as a liberal2 political philosophy that is concerned
with limiting government. Consequently, it is attacked for weakening government when
1 In U.S. terminology ‘government’ designates all three branches (the legislative, the executive, and the
judiciary). In Europe, where parliamentary and semi-presidential systems prevail, when used generally, the
term ‘government’ refers to the group of ministers (cabinet) led by the prime minister (Premier, Chancellor)
comprising the peak of the executive branch. The term government is used in the broader, U.S. sense
throughout the text.
2 ‘Liberal’ in this book is used in its nineteenth-century European sense (‘classic liberalism’), meaning
emphasis on individual liberty and the free market as an extension of this freedom and designing the defence
of liberty against successive threats. Liberalism can be a political philosophy; as a political movement it
animated constitution writing and it was a nationalist movement in many nineteenth-century societies.
Liberalism is intimately related to constitutionalism. Liberal in U.S. political usage is close to ‘progressive’,
social democratic, or welfarist in the European sense.
14 Constitutions and Constitutionalism
the state needs to be strong. Limiting what government can do, however, does not neces-
sarily result in a weaker state, whatever ‘weakness’ means in this context. And it means
very little. A community may need a government that is strong enough to defend it from
its enemies. Beyond this point ‘strength’ is of little assistance. At first glance a government
seems weak where the streets are not safe. But the U.S. is a country with a high incidence
of violent crime: is the U.S. a weak state? In certain dictatorships there are policemen
around every corner and the crime rate is low, so one would say that these are strong states.
Yet, such strength and security are of dubious value where the police use their position to
induce fear or extract bribes from the population. In short, strength is not an analytically
helpful category for the study of constitutions and governments. Efficiency is a completely
different matter.
Some believe that the emphasis on constraints on government powers is misleading:
establishing a government to pursue good things makes sense, while establishing a gov-
ernment mainly to prevent political leaders from doing bad things makes no sense.3 While
there is ample evidence that it does make sense, it is true that a design of government that
knows only limitations is of no use. The limitations seeking to prevent concentration and
perpetuation of abusive power make sense where the same design provides for the actual
operation of government. Exactly as a brake in a car makes sense because there is an
engine that makes the machine run in the first place.
A state can be governed in many ways. As a minimum, it has to be ‘strong’ enough
to guarantee security. And security here includes protection from government officials.
A constitution in the spirit of constitutionalism is not a perpetual brake. Its point is to help
the driver reach her destination quickly and safely, even in bad traffic. As political theorist
Stephen Holmes has argued, the limitation offered by constitutionalism enhances the effi-
ciency of government, beginning with advantages in information gathering. The monarch
could not monitor his provincial agents, so he allowed them to complain profusely at the
Estates General. In other terms, granting autonomy to the legislature increased royal over-
sight: ‘[the] king allowed himself to be bound by this rule . . . because the exposés loosed by
his self-limitation were palpably useful to his exercise of power.’4 The French theorist of
sovereignty and demonology expert, Jean Bodin (1530–1596) understood this advantage
already in the age of the making of the absolute monarch.
In a contested version of constitutionalism that this book favours, the government’s
primary goal is to enable an order of liberty. And a limited government will be efficient
exactly because it is governed by rules and not whims. Thus, limited government contrib-
utes to the welfare of all, by providing efficient structures for common defence and s ecurity.
Constitutional solutions enhance liberty for all, for the sake of effective government. In
democracies, this pragmatic consequence becomes a goal and a standard per se. Limited
government is greater power, and greater freedom: free citizens make the government
stronger. And to remain strong a government needs its citizens to be free. Where the
‘It is characteristic . . . of liberalism that it should seek to ground the historical contingencies of liberal
practice in a foundation of universally valid principles. . . . For it is distinctive of liberal thinkers to deny that
there is within the diversity of forms of government and society disclosed to us in history a legitimate variety
of frameworks for human well-being . . .’ J. Gray, Liberalisms. Essays in Political Philosophy (Routledge Revivals,
2010) 239. Gray denies that there is a single liberal political philosophy and accuses liberalism of Evangelical
intolerance. For the contrary approach, that liberalism is a defensive and principled political philosophy see
e.g. A. Ryan, The Making of Modern Liberalism (Princeton University Press, 2012).
3 S. A. Barber, Welfare and the Constitution (Princeton University Press, 2009) 8–12, 22–9, 36–41.
4 S. Holmes, Constitutions and Constitutionalism, 189, in M. Rosenfeld and A. Sajó, eds. The Oxford
Handbook of Comparative Constitutional Law (Oxford University Press, 2012) 194.
power of government becomes immense, its ‘security diminishes’.5 The Roman Empire
began as a Republic. The plebs of Rome benefitted from the increased military might of the
Roman state, although such concentration of power could be turned against some or all the
people—as it happened at the end. Hence, the need for limiting increased political power.
Constitutionalism presupposes that government respects individual liberty and hence a
sphere of social and private activities. At least for many nineteenth-century liberals there
was a sphere of (private) liberty that was beyond state interference. Benjamin Constant
(1767–1830), the key French thinker of early liberalism claimed that
there are things about which the legislature has no right to make law . . . areas of individual
existence in relation to which society is not entitled to have any will . . . Political freedom
would be of no value if the rights of individuals were not sheltered from all violation. Any
country where these rights are not respected is a country subjected to despotism.6
This consideration lies at the heart of the German conception which has animated think-
ing about the state and government: the Rechtsstaat (more or less translatable as the rule of
law).7 The Rechtsstaat ‘should exactly and irrevocably determine and secure the directions
and the limits of state activity and the free sphere of the citizen, and not enforce on its own
behalf or directly any moral ideas beyond the sphere of law.’8
The idea of a ‘natural’ private sphere that cannot be subject to government intrusion
(the sphere of the ‘liberty of the moderns’ as opposed to the political liberty of the ‘ancients’
in Constant’s terminology) proved unsustainable in practice, but the limitation on the
government’s functions remains crucial for constitutionalism. Contemporary constitu-
tional law seldom insists on an inviolable private sphere in absolute terms. Instead, it relies
on a few specific fundamental rights (e.g. freedom of religion and conscience, right to
private life) that can be limited, if certain conditions are met.9 Nonetheless, the idea that
there exists a distinct private sphere remains a crucial reminder for limiting state power: it
helps to avoid the political treatment of intractable issues by simple majority rule (e.g.
deciding on the one and only acceptable version of the good life) (see Box 1.1).
Constitutionalism assumes that perpetual concentration of political power is detrimen-
tal to social peace and to individual liberty. ‘A people has only one dangerous enemy:
its government’, as the ambitious public prosecutor of the French Revolution, Saint-Just
(1767–1794) noted in his speech introducing a radical government of terror during a minor
coup d’état in guise of an emergency in 1793. In view of Saint-Just’s own performance as a
statesman-executioner, we have to admit that he was right. However, most people see in
government an ally (except on Tax Day) without considering that their friend may turn
into an enemy,10 and they will become defenceless before they know it. Constitutionalism
designs institutions to prevent the monopolization of power, and the perpetual, unrestricted
5 Ch. S. de Montesquieu, The Spirit of the Laws [1748], A. M. Cohler, B. C. Miller and H. S. Stone, trans.
and eds. (Cambridge University Press, 1992) 118. Montesquieu’s remark concerns the monarch’s personal
power and security.
6 B. Constant, Principles of Politics Applicable to All Governments [1810] É. Hoffman, ed., D. O’Keefe, trans.
(Palgrave Macmillan, 2003) 35–6, 103. For a detailed discussion of the rule of law and constitutionalism see
Chapter 8.
7 See e.g. F. S. Stahl, Die Philosophie des Rechts nach geschichtlicher Ansicht (J. C. B. Mohr, 1830–1837). In
contrast to Constant, nineteenth-century liberal German lawyers, like von Mohl (see Chapter 8), sought an
active state.
8 Quoted after Fr. Hayek, The Market and Other Orders, B. Caldwell, ed. (University of Chicago Press, 2014)
151. Other nineteenth-century liberal German lawyers, like von Mohl (see Chapter 8), sought an active state.
9 On constitutional liberties, rights, and their limitation see Chapter 10.
10 B. Constant, Commentary on Filangieri’s Work [1822], A. S. Kahan, ed. (Liberty Fund, 2015) 221.
Box 1.1
The separation of the public and the private spheres serves to
prevent power from substituting itself for society, and second, to prevent society from
appropriating all power to itself. In short, the goal was to regulate the difference between
power and society in such a way as to avoid both the encroachments of authority and
the dissolution of authority. . . . [O]nce the reign of the individual has begun, two spheres
are indelibly marked out: a civil sphere, constituted by relations established at the initiative
of individual agents when they use their freedom to own property, to forge alliances,
to express themselves, or to worship; and a political sphere, constituted exclusively by
certain specific requirements of collective life.11
While this is an intellectually sound distinction, it is inconvenient at times when the govern-
ment is under pressure to regulate private relations in the public interest (e.g. to manage an
economic crisis or simply to protect consumers). When the hard divide between the public
and the private spheres collapsed, it almost crushed the U.S. Supreme Court, as the justices
kept insisting that the liberty to contract prevailed over labour regulation.12
rule of a person or band of people (autocracy). It offers a set of solutions that guarantees
effective government that respects individual freedom. As such, the constitution of limited
government precludes certain forms of governmental oppression even if those arrange-
ments are intended for the benefit of all.
The idea of limited government is to be understood within the frame of the modern
sovereign state, a form of organized political power. Liberal constitutions were developed
in response to the sovereign absolute monarchy. Here ‘sovereign’ means unlimited, and
unlimited power inevitably tends to be abused. Sovereign power refuses to compete with
any other social group or power (e.g. churches and other communities) for political
authority as a matter of principle, in the name of its own sovereign nature (exclusive and
supreme power). Despite their de facto impact on social decisions, such social groups can-
not impose legally binding limits on government. The consequences of this exclusivity
become clear when compared to medieval times when the Catholic Church claimed legit-
imate authority of non-secular origin over kings and emperors.
Sovereign power, by definition, runs the risk of monopolization and perpetuation,
especially where government is taken over by ideological (or religious) fundamentalists.
Constitutionalism assumes that when left without constraints, political power holders
seek to increase their powers. In view of the consequences of unbridled power it is reason-
able to assume that the constitutional arrangement of limited government shall be accept-
able, as it is reasonably advantageous to all, even if some members of the community may
benefit more from the arrangement than others.
Of course, public order and security can be based on oppression. This is the order of
despotism envisioned by the French political philosopher Montesquieu (1689–1755):
Everything comes down to reconciling political and civil government with domestic
government, the officers of the state with those of the seraglio.
11 M. Gauchet, Liberalism’s Lucid Illusion, A. Goldhammer, trans. 23, in H. Rosenblatt, ed. The Cambridge
Companion to Constant (Cambridge University Press, 2009) 29, 32.
12 See Chapter 9, Box 9.23 and see also French Civil Code and strict liability in Chapter 8, Box 8.4.
Such a state will be in the best situation when it is able to consider itself as alone in the
world, when it is surrounded by deserts and separated from the peoples it calls barbarians.
It will be good for the despotism, unable to count on the militia, to destroy a part of itself.
While the principle of despotic government is fear, its end is tranquillity; but this is not
a peace, it is the silence of the towns that enemy is ready to occupy.13
This is exactly what constitutionalism wishes to avoid.
True, government means that many are governed and a few others govern. Those who
govern have a head-start advantage. Constitutionalism raises specific concerns that affect
the relations between the governed and the rulers. People’s self-government must have
practical consequences. Those who govern in a democracy are only agents of the governed,
although we know from management theory that the agent may accumulate considerable
power to the detriment of the principal. Classic constitutionalism had no illusions about
elected office holders (noting that they have ‘a distinct interest from the rest of the
Community’).14
These are clear precepts of constitutionalism, but not a definition.
Constitutionalism is a matter of taste and manners. There can be an invitation in the
constitution that ‘the conduct of government be transparent’ (Ethiopia, Article 12(1)), but
such words make little difference, if the rulers believe that they can do anything without
any explanation. Contemporary constitutions exist on the foundations of a set of beliefs
and commitments. Constitutional expectations are to be shared by the power holders and
their constituency. As a result, a long-term perspective, applicable to future govern-
ments, emerges that is not limited to drafting technicians and politicians, but is deeply
connected with public politics, with such problems and political conflict involving the
people that require lasting institutional solution.
This is not a normative statement, but is certainly an ‘ideational approach’, that recognizes
the importance of conflicting ideas, and the influence of ideology on policy.15 Constitu
tionalism presupposes a culture16 of justification, reason-giving, and even of legitimation.
Sadly, constitutions can and do exist without constitutionalism ingrained in them.17
Liberal political theory in particular would argue for the supremacy of constitutional sys-
tems vis-à-vis other forms of government on moral grounds. We settle for less and only
claim here that classic constitutions are instances of higher law-making.18 Particular tragic
and pressing historical experiences permit the elevation—to some extent—of the constitu-
tional text above ordinary politics.
There is strong emphasis on the words to some extent (and in other historical circum-
stances the extent can be large). It is undeniable that there is a strong element of ordinary
politics even in higher order law-making. Constitution-making is a political process. The
13 Ch. S. de Montesquieu, The Spirit of the Laws [1748], A. M. Cohler, B. C. Miller and H. S. Stone, trans.
and eds. (Cambridge University Press, 1992) 60.
14 J. Locke, Second Treatise of Government, 265, in J. Locke, Two Treatises of Government [1689], P. Laslett,
ed. (Cambridge University Press, 1988) 364.
15 T. Ginsburg, Judicial Review in New Democracies. Constitutional Courts in East Asia (Cambridge University
Press, 2003); R. Hirschl, Towards Juristocracy. The Origins and Consequences of the New Constitutionalism
(Harvard University Press, 2004).
16 Culture here means ‘a system of inherited conceptions expressed in symbolic forms by means of which
men communicate, perpetuate, and develop their knowledge about and attitudes toward life’, C. Geertz, The
Interpretation of Cultures (Basic Books, 1973) 89.
17 H. W. O. Okoth-Ogendo, Constitutions without Constitutionalism. Reflections on an African Political
Paradox, 65, in D. Greenberg, S. N. Katz, M. B. Oliviero and S. C. Wheatley, eds. Constitutionalism and
Democracy. Transitions in the Contemporary World (Cambridge University Press, 1993).
18 B. Ackerman, The Future of Liberal Revolution (Yale University Press, 1992).
strategic interests of the drafters and of the participating elite are inseparable from the
constitution-making process and the resulting design. For the power-hungry, a constitu-
tion is not more than an (elite) bargain—or simply victors’ dictate. Undeniably, there are
winners and losers in a constitutional system, and even entire social groups may be disad-
vantaged by the constitution. Constitutionalism cares about this issue more than victors
would like. On the whole, as Herman Finer noted, ‘[t]he constitution is the autobiography
of the power relationship, concrete and spiritual, in any human group, and like all auto-
biographies, it includes some fancies which are not lived up to, and excludes some vices
which are lived only too well.’19
Constitutionalism is supposed to answer the question: how do we ‘construct enduring
forms of political order? The fate of revolutionary power sharing will depend on many
things besides constitutional creativity; culture, economics, and geopolitics will make a
tremendous difference. Nonetheless, the creative role of constitutionalism is easy to under-
estimate . . .’20 Constitutionalism, written into law, does not replace the cement of society,
but it is an important active ingredient of the cementing compound. Government may
have a leading role in integrating society; and in such cases additives become particularly
important.
British constitutionalism survives without a written constitution.21 There, so the canon-
ical contemporary doctrine insists, judges cannot review the constitutionality of statutes,
the majority of civil liberties and fundamental rights are not guaranteed by entrenched
protective laws, and—at least in theory—Parliament can reshape the political system
whenever it desires. Without idealizing the political system that seems to prevail in the
United Kingdom, one can assume with near certainty that the withdrawal of constitutional
freedom is out of the question in that country. Although kettling passers-by at a demon-
stration for a few hours22 does not make headlines for long in the U.K., the same is true in
other countries where constitutionalism is protected by a fortress of legal provisions. The
vast majority of the public are of the opinion that constitutionalism cannot be restricted or
abolished, although the overwhelming majority have no idea what constitutionalism is.
Instead, elementary fairness is expected in politics. The shared assumption is that neither
the Crown nor Parliament would do anything blatantly unfair, nor would the ministers or
the intelligence services (hopefully). This is a view shared among those in power. It is true
that freedom is restricted within certain limits on occasion, and sometimes with excessive
speed, but (so far) without causing irreversible damage to liberty.23 The logic of the consti-
tutional arrangement makes politicians see that they have been remiss: it is either time to
forgo something or to correct it.
Trust in a shared ideal of fairness, accountability, and mutual respect plays a stronger
role here than in the constitutional system of countries with a written constitution.24 The
19 H. Finer, Theory and Practice of Modern Government, rev. ed. (Henry Holt & Co., 1949) 12.
20 B. Ackerman, The Future of Liberal Revolution (Yale University Press, 1992) 3 (emphasis added).
21 For a less enthusiastic home-grown appraisal see K. D. Ewing, Bonfire of the Liberties. New Labour,
Human Rights, and the Rule of Law (Oxford University Press, 2010).
22 Austin and Others v. the United Kingdom, [GC] Application nos. 39692/09, 40713/09 and 41008/09,
Judgment of 12 March 2012. Passers-by not allowed to exit a police cordon for almost seven hours during a
protest against globalization in London.
23 K. D. Ewing, Bonfire of the Liberties. New Labour, Human Rights, and the Rule of Law (Oxford University
Press, 2010).
24 The formal distinction between written and unwritten constitutions goes back to Bryce, who distinguished
between rigid and flexible constitutions (Rome, Britain). Rigid constitutions are written to secure rights against
invasions by power. Flexibility is provided by a loophole and supplied from the minds of judges. J. Bryce,
Flexible and Rigid Constitutions, 124, in J. Bryce, Studies in History and Jurisprudence, vol. 1 (Oxford University
Press, 1901) 197.
exercise of power is built on trust, contagious trust. Those in power claim to know what
kind of fair play is expected of them, and they act accordingly. They may abuse power,
claim as ‘expenses’ the upkeep of the moat at their country estate, or help a school friend
obtain a lucrative government commission, but they do not threaten freedom. They step
down, according to the rules of the game, if they must. If they fail to do so, their peers will
push them, fearing public opinion.
While conventions and good sense play an important role elsewhere too, political sys-
tems, built on trust and belief in the observance of unwritten conventions, cannot operate
where constitutional conventions are not shared in the community. ‘Whereas other
European societies have in the last two centuries formally adhered to liberal principles, set
out in written constitutions, British society has continued to seek unity in manners rather
than ideas.’25 Is it premised on the fact that government ministers and members of
Parliament belonged to the same community and all take their share of good and bad?
This is why government ministers feel that they have to answer questions in Parliament,
and this is why they strive (often) to answer them on the merits, even if this is done in the
finest schoolyard style. The reason why a simple statement from a minister is (mostly)
considered satisfactory is because it was made (so it is believed) after a careful and
unbiased study of all the necessary criteria. The institutional shortcomings of the system
become visible when the human (elitist) component weakens in this system of conven-
tions, and when citizens’ trust is replaced by populist anger.26
It is not for us to judge, especially in 2016, the year of the referendum on the U.K. leaving
the European Union (Brexit), whether the British live in self-deception: if they do, it has
certainly served them well for a long time. In other countries it is less plausible, or simply
impossible to operate on such assumptions. According to the political philosopher Larry
Siedentop:
[t]he unwritten constitution contributed to a void—leaving advice about any deeper com-
mitments, . . . as ‘a matter for bishops’. . . . That dangerous normative void in Britain has been
beautifully captured by a recent definition of the constitution. It has been said, with only
slightly more malice than truth, that the British constitution can be defined as ‘what
happens.’27
With the experiences of an authoritarian system of government behind the backs of many
societies, where experience taught that anything can happen, and where the political cul-
ture of fairness is not strong enough or does not exist, the basic guiding principle is suspi-
cion. In such settings formal institutions are needed to provide assurances.
1 . 2 The idea of a con st i t u t ion

Lawrence Sterne’s immortal Tristram Shandy begins with the conception of a hero who
barely manages to grow any further in the course of the novel. Tristram’s own birth has to
wait until volume III, though we know that our hero exists and things will happen to him.
A constitution is what it becomes during its life, yet its text and its making are pretty good
precursors of some of its future adventures. As Tristram says:
25 L. Siedentop, Democracy in Europe (Columbia University Press, 2001) 66.

26 How the same institutional arrangement (with the addition of inherited colonial emergency powers) can
deteriorate in the absence of the original cultural assumptions is discussed in H. Kumarasingham (ed.),
Constitution-Making in Asia—Decolonisation and State-Building in the Aftermath of the British Empire
(Routledge, 2016). 27 L. Siedentop, Democracy in Europe (Columbia University Press, 2001) 71–2.
I wish either my father or my mother, or indeed both of them, as they were in duty both
equally bound to it, had minded what they were about when they begot me; had they duly
consider’d how much depended upon what they were then doing; that . . . the production of
a rational Being was concerned in it . . . I should have made a quite different figure in
the world.28
What happened before the constitution’s adoption is at least as crucial as its later
vicissitudes.29
Today a constitution is easily identified with a legal document of the same name, arranging
public institutions of government. This has not been the traditional meaning (see also
Box 1.2). While the Greek city-states had a foundational law, the constitution was about
the relationship among social groups: a regulated living together in the political commu-
nity of people of radically different social status. Politeia, in Greek, means the community
of citizens in a city/state. It also refers to how the city is run politically. In substance,
Box 1.2
Dieter Grimm, Types of Constitutions (2012):
The term ‘constitution,’ or its equivalent in other languages, existed long before modern
constitutions emerged. But it designated a different object. Originally used to describe
the state of the human body, it was soon applied to the body politic, yet not in a norma-
tive sense but as a description of the situation of a country as determined by a number
of factors such as its geography, its climate, its population, its laws etc. In the eighteenth
century, the meaning was often narrowed to the state of a country as determined by its
basic legal structure. But still the notion ‘constitution’ was not identified with those laws.
Rather, the term continued to describe the state of a country insofar as it was shaped by
its basic laws. The basic laws themselves were not the ‘constitution’ of the country.
‘Constitution’ remained a descriptive, not a prescriptive, term.30
Keith M. Baker, Constitution (1989):
Throughout the eighteenth century, the dictionaries hesitated between two general
senses of the term. The first emphasized the activity of an institution and establishment,
as in the original use of the term in Roman and canon law to mean laws and ordinances
of emperors or popes, kings or ecclesiastical superiors, or an act like the constitution of
a rente or dowry. The second emphasized the order of existence of an entity, its arrange-
ment, mode of being, disposition, as in the constitution of the world or the constitution
of the human body. . . . . [t]his same ambiguity between institution and order also
appeared among the political writers upon whom the dictionaries were eventually to
draw. Montesquieu, adopting English usage, gave the term ‘constitution’ a new centrality . . .
by emphasizing its reference to the order of the existence of an entity—its arrangement,
mode of being, or disposition—rather than an act of establishment or institution that
brought it into being.31
28 L. Sterne, The Life and Opinions of Tristram Shandy, Gentleman. A Sentimental Journey Through France
and Italy, G. Petrie, ed. (Penguin Books, 1970) 5.
29 For the puzzle of parthenogenesis of the constitution see constituent power in Chapter 2, 1.
30 D. Grimm, Types of Constitutions, 98, in M. Rosenfeld and A. Sajó, eds. The Oxford Handbook of
Comparative Constitutional Law (Oxford University Press, 2012) 100.
31 K. M. Baker, Constitution, 479, in F. Furet and M. Ozuf, eds. A Critical Dictionary of the French
Revolution, A. Goldhammer, trans. (Cambridge University Press, 1989) 481.
this is the meaning of ‘constitution’ today. In the circumstances of republican Rome, the

statesman Cicero (106 bce–43 bce) seems to have used the term first as a reference to a
frame of government (haec constitutio).32 Later on it was understood as a compact, an
arrangement that enables a society to satisfy certain general requirements of peaceful liv-
ing together. This remains the function of the contemporary constitution. It can offer ‘liv-
ing together’ as ‘the guarantee of subsistence-level existence’, ‘living together’ on the basis
of mutual respect among equals, or ‘living together’ based on privilege and submission. In
constitutional democracies ‘living together’ is understood as living in freedom in a man-
ner compatible with the freedom of others.33
The first modern constitution in written form was probably Britain’s Lord Protector,
Oliver Cromwell’s (1599–1658) Instrument of Government (1653). It is a perfect example
of what contemporary constitutions are about in the technical sense: establishing the
branches of power and defining their powers (and merging them in denial of constitution-
alism). However, authors such as the Italian politician and theorist Machiavelli (1469–
1527) or Montesquieu talked about a constitution as a political arrangement of government:
a special relation among the components of society, and not primarily as relations among
artificially created political bodies. Around the same time, the legal instrument used to
establish new government machineries, especially for colonies, was called a charter.34 The
English politician Bolingbroke (1678–1751) separated the legal constitution from political
and social structure: constitution is a higher, immutable law and ‘our Kings are to govern
in subjection to the constitution’.35 However, two generations later, the English lawyer
William Blackstone (1723–1780) in his influential Commentaries still envisioned the gov-
ernment of England as one where the two Houses of Parliament bring together the King
with various segments of society.36
In 1755 Corsica called its constituting governance document ‘constitution’. (This other-
wise unsuccessful attempt at independence envisaged women’s suffrage!) In Diderot’s
(1713–1784) Encyclopédie (1752) the entry refers to a ‘set up’.37 Enlightenment rationality
pictured the government as an artificial design of perfection dictated by abstract reason.
Likewise, makers of modern constitutions admit wholeheartedly that the constitution is a
matter of deliberate human choices. But it is not an ordinary creation: it is special because
of the authority of those who had the power and the right to create it. It is the product of a
constituent power.38
Classic eighteenth-century constitutions and many contemporary constitutions in force
were created in revolutionary transitions and offered a governmental structure for a previ-
ously non-existent political entity. An alternative tradition considers constitutions to be
32 Ch. H. McIlwain, Constitutionalism. Ancient and Modern [1940], 2nd rev. ed., facsimile ed. (Cornell
University Press, 1947) 24.
33 On how the constitution handles living together see Chapter 2, 3.2 and Chapter 3, 8.5.
34 Royal charters were commercial company documents which created the government of colonies. See the
Charter of the Massachusetts Bay Company, granted by the King in 1628, resulting locally in a document of
government called Constitution of the Massachusetts Bay Plantation (1629). For another name Fundamental
Orders, applied for Connecticut, adopted in 1639.
35 H. S. J. Bolingbroke, A Dissertation upon Parties [1733–34], 1, in H. S. J. Bolingbroke, Political Writings,
D. Armitrage, ed. (Cambridge University Press, 1997) 88.
36 W. Blackstone, Commentaries on the Laws of England [1765–9], vol. I (University of Chicago Press,
1979) 149.
37 ‘S. f. (Jurisprudence) signifie en général établissement de quelque chose. Ce terme s’applique en Droit
à différents objets.’ M. Diderot, Encyclopédie. Ou Dictionnaire Raisonné des Sciences, des Arts et des Métiers
(1777) 151. 38 See Chapter 2, 1.
evolutionary and not revolutionary: here the constitutional arrangement is based on the
power of convention and/or the rule of law. This was the German Rechtsstaat approach
and this is the case of the unwritten constitution in the U.K.39 While the evolutionary
model describes ordinary constitutional developments with sufficient accuracy, the com-
pelling modern form is the constitution created by revolution: a written, visible, legal
document that shapes future governmental relations. Many constitutions are used in the
making of a new state, or Nation, as an authoritative affirmation of statehood.
The big bang of revolutionary constitution-making changes the equation. Something
new is created (although not ex nihilo, irrespective of original innovations). Contrary to
the universe, it is created by rational choice: there is a document and a corresponding
institutional reality that becomes the object of reflection. The normative force is political
and legal, and not just rational and moral as is the case with constitutionalism.
A constitution can be a transformative legal mechanism that enables new social rela-
tions to flourish, e.g. abolishing slavery, apartheid, feudal privilege, or religious monopoly.
But, contrary to the rhetoric of constitutional enthusiasm, genuine constitutions do not
mandate the creation of a future society, heaven on earth. Such constitutions do not con-
vey a bright future. The U.S. Constitution was a pragmatic instrument: it had to correct the
functional mistakes of a failed instrument of government, the Articles of Confederation.
Yet, it had a foundational element that Hannah Arendt considered of ‘enormous, overrid-
ing importance’, as ‘the actual content of the constitution was by no means the safeguard
of civil liberties but the establishment of an entirely new system of power’ that would pre-
vent the collapse of the existing social order of the newly independent states.40 At the same
time, it closed the revolution; it preserved the achievements of the revolt against the
British, while precluding the ‘extremist republican-democratic’ order institutionalized, for
example, in Pennsylvania in the revolutionary spirit of the Declaration of Independence
(1776). (For an alternative position see Box 1.3.)
The new normative power (whose authority came from popular support) meant that a
rational design of a future government has been adopted with binding force. It was binding
on those under the power of the state, and also on future generations. President Thomas
Jefferson was of a different view:
Every constitution, then, and every law, naturally expires at the end of nineteen years. If it
be enforced longer, it is an act of force, and not of right. It may be said, that the succeeding
generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution
Box 1.3
The assumption that the constitution is a deliberate human act was plain and simple
Enlightenment hubris for conservatives like the philosopher Joseph de Maistre (1753–1821),
one of the first to react intellectually to revolutionary constitutionalism. He denied the
authority of the French Constitution submitting that ‘Man cannot create a constitution; and
no legitimate constitution can be written’.41 Instead, authority exists outside the artificial
constitution in the divine order of the hereditary absolute monarchy.
39 See e.g. C. Möllers, Pouvoir Constituant—Constitution—Constitutionalisation, 183, in A. von Bogdandy

and J. Bast, eds. Principles of European Constitutional Law (Oxford University Press, 2006).
40 H. Arendt, On Revolution (Viking Press, 1990) 147.
41 J. de Maistre, Essay on the Generative Principle of Political Constitutions [1809], C. M. Lombard, ed.
(Scholars’ Facsimiles & Reprints, 1977) 89–90.
or law had been expressly limited to nineteen years only. . . . But the power of repeal is not
an equivalent. . . . impediments arise, so as to prove to every practical man, that a law of
limited duration is much more manageable than one which needs a repeal.42
Jefferson’s ideas did not carry the day. The prevailing constitutional narrative is that a con-
stitution is intended to bind future generations and it is a long-term project. This assump-
tion is certainly important for the constitution’s legitimacy (to be of venerable age, part of
immutable tradition, part of our identity), even when it is revealed that constitutions in
fact on average endure for nineteen years43—the period Jefferson thought to be their ideal
life span to begin with.
Constitutions—since the foundational laws of the Greek city states (polis) until today—
are concerned with the institutional structure of government and its fundamental organs
and their relationship. A state is sovereign: ‘[T]here is and must be in all of [the states] a
supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii,
or the rights of sovereignty, reside.’44 Given that the modern state which obtained the
monopoly of violence and constraint became the primary institution of control over the
territory and population, the constitution has to provide for an efficient government for
the state and the political community. If during the process of creation the principles
of constitutionalism are kept in mind, the constitution will aim to establish a system of
limitations on political powers that allows the freedom of the citizenry to prevail. At the
very least such a constitution will seek to prevent despotism and the perpetuation of a
monopoly of political power, including that of non-state actors.
1 . 3 The l e g a l con s t i t u t ion

Whilst being understood as a written document45 that prescribes the design of govern-
ment, the constitution is thought of less and less as a charter of the relations among social
actors. The legal constitution subordinates politics to law. Accordingly, political solutions
are to be found and justified within legal frames, and agreements are reached through legal
processes (e.g. in constitutional adjudication). But the legal constitution does not end
the intimate relation between constitution and constitutionalism: in a material sense a
constitution is a constitution precisely because it satisfies the elementary expectations of
constitutionalism. The tradition that constitutions as formal legal documents and consti-
tutionalist expectations are interrelated, lives on. For example, Upendra Baxi, writing
about South Asian constitutions, states that the term ‘refers not just to the founding text
and it subsequent re-writing (amendments/suspensions) but also to “constitutionalisms”
42 Thomas Jefferson to James Madison, 6 September 1789, http://press-pubs.uchicago.edu/founders/

documents/v1ch2s23.html.
‘[O]ne age cannot enter into an alliance on oath to put the next age in a position where it would be impossible
for it to extend and correct its knowledge . . .’ I. Kant, An Answer to the Question: ‘What is Enlightenment?’ In
I. Kant, Political Writings, H. S. Reiss, ed., H. B. Nisbet, trans. (Cambridge University Press, 1970) 57.
43 Z. Elkins, T. Ginsburg and J. Melton, The Endurance of National Constitutions (Cambridge University
Press, 2009) 207.
44 W. Blackstone, Commentaries on the Laws of England [1765–9], vol. I (University of Chicago Press, 1979)
48–9.
45 The U.K. continues to operate without a written constitution. Similarly, the Hungarian Kingdom of the
Austro-Hungarian Monarchy (and until 1945) was without a written constitution, and yet it qualified as a
constitutional state in its time, with a number of important statutory documents, charters, and treaties. Today
Israel and New Zealand have written bits and pieces of ordinary laws which deal with constitutional issues but
without entrenchment.
(the idea of a constitution, whether viewed in the frame of normative theory, as acts of
utopic imagination, or as ideology-sets). In this way, the acronym may often mislead . . .’46
The constitution is effective when and if it is legally binding. The legal nature of the
constitution means that it becomes part of the legal system and has to satisfy the formal
conditions of modern law. 47 As a written legal document, it is suited to judicial-legal applica-
tion. In law-centred modern states, constitutions assume prevalence in the legal sphere.
Its legal nature adds a new dimension of rational legitimacy. A mere declaration, if not
strengthened by some form of religious belief, cannot influence actions; customs and
tradition may help, but within limits. Being ‘legal’ helps: in a society that has already
accepted the relevance and authority of law, it sets the ultimate conditions and criteria of
legitimacy for constitutional actors and their interactions. People have accepted to live by
law and the constitution directs what may become law. A constitution is either binding law,
or it is nothing.48
The practical consequence of the supremacy of the constitution is that matters which
are constitutionalized are beyond the reach of ordinary law-making and, therefore, of
ordinary politics. Some scholars who share the fundamental liberal values underlying
classic constitutionalism attack this legal constitutionalism because it restricts democratic
processes. In this view, moral and political issues and conflicts are to be solved as problems
of political constitutionalism.49 The response of traditional constitutionalists is that insti-
tutional safeguards are necessary precisely because of the inevitable dysfunction of strong
democracies.
In itself, a constitution’s normative nature, and the fact that it is made legally binding,
says very little. To determine the legal system, a constitution must be above all other legal
regulations: it must be supreme. It follows that all other legal norms derive their authority
from the constitution (albeit often only indirectly, being created in a process determined
by the constitution) and cannot contradict it.50 Constitutional supremacy (‘the supreme
Law of the Land’, Article VI, Section 2, U.S. Constitution) is the starting point and the clos-
ing argument of a legal system.51 As John Marshall (1755–1835), the fourth and most influ-
ential Chief Justice of the U.S., summarized it thus: ‘a law repugnant to the Constitution is
void; and that courts, as well as other departments, are bound by that instrument.’52
Legal supremacy also entails, at least implicitly, that there is no other competing nor-
mative order that is supreme or of equal force in matters of government other than the
constitution. In view of theocratic governments this is an important practical require-
ment of constitutionalism. Islamic constitutions in particular challenge their own
46 U. Baxi, Modelling ‘Optimal’ Constitutional Design for Government Structures. Some Debutant Remarks,
23, in S. Khilnani, V. Raghavan and A. K. Thiruvengadam, eds. Comparative Constitutionalism in South Asia
(Oxford University Press, 2013) 23.
47 According to the advocates of the unwritten constitution, a charter is too rigid, while the constitution that
manifests itself in traditions enables a more flexible approach. That the judges have nothing to apply is more of
an advantage, because it upholds the separation of the branches of power, inasmuch as it excludes the possibility
of government by judges at the same time.
48 Sieyès’ speech at the National Convention, 18 Thermidor Year III (5 August 1795), reprinted in 25
Moniteur Universel 442. Quoted in M. Troper, The Logic of Justification of Judicial Review, 1 International
Journal of Constitutional Law (2003) 99, 103.
49 See e.g. R. Bellamy, Political Constitutionalism. A Republican Defence of the Constitutionality of Democracy
(Cambridge University Press, 2007). For details see Chapter 9 on constitutional adjudication.
50 On the constituent elements of the legal constitution see Chapter 9, 2.2.
51 This principle refers to the supremacy of federal law as opposed to the laws of the constituent states and
not to the relationship between the Constitution and other legal regulations. The Founding Fathers, however,
agreed on the Constitution being above all laws. This is the principle upon which the Supreme Court acted.
52 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 179 (1803).
supremacy by attributing priority to God’s order53 (Iran) or to Islamic law. As the Constitution
of Iraq (Article 2) states: ‘Islam is the official religion of the State and is a foundation source of
legislation: [and] No law may be enacted that contradicts the established provisions of
Islam.’ Such provisions constantly challenge the project of constitutionalism which
assumes and asserts the primacy of the secular legal order.54
In itself, however, the constitution’s supremacy is not sufficient to determine who is
bound by it. Does it refer to the legislature only or to all state organs? To what extent is it
possible to apply the constitution’s prescriptions directly in litigation before ordinary
courts, for the purposes of interpretation of the laws, or even to challenge as unconstitu-
tional an otherwise applicable legal provision?
Continental constitutions of the nineteenth century had no legal enforcement m echanism.
They were considered authoritative political declarations with binding force on political
actors. The highest administrate court and chief legal advisor to the French Government,
the French Council of State (Conseil d’État) gradually took into consideration constitutional
provisions or principles behind the text when it came to the application of administrative
provisions. As to the common law countries of unwritten constitutions, in principle con-
stitutional norms could have been applied in a court of law to the extent they existed in the
common law; the practice was undertaken extremely reluctantly. Even in the U.S. the use
of the Constitution in ordinary courts was exceptional in the nineteenth century. For
socialist theory the constitution was a programme and a guide for legislation; it could not
be directly applied in a court of justice.
There are important practical differences as to which governmental bodies are obliged
to apply and uphold the constitution.55 Many modern constitutions expressly state both
the supremacy and the applicability of the constitution (see e.g. German Basic Law, Article
1(3); Turkey, Constitution, Article 11; Singapore, Constitution, Article 4).56 If a constitu-
tional provision can be applied directly, Anglo-Saxon terminology calls it a self-executing
rule. When a constitution is directly applicable, its relevant provisions bind state organs
and govern the relation of such organs and the people directly, especially where funda-
mental rights are at stake. The constitution may apply even between private parties.57
How should the constitution be applied in a legal sense as a kind of supreme statute?
Even if a constitution were primarily a declaration of principles of fundamental law, the
majority of classical constitutional provisions either expressly declare a right or define rules
of competence, or state a prohibition and as such they contain clear-cut obligations and
authorizations. Such straightforward norms can be applied without technical difficulties.
53 ‘The Islamic Republic [of Iran] is a system based on belief in: 1. the One God (as stated in the phrase
‘There is no god except Allah’), His exclusive sovereignty and the right to legislate, and the necessity of
submission to His commands.’
54 M. H. Kamali, Constitutionalism in Islamic Countries. A Contemporary Perspective of Islamic Law, 19,
in R. Grote and T. J. Röder, eds. Constitutionalism in Islamic Countries, Between Upheaval and Continuity
(Oxford University Press, 2012) 21: ‘Promulgation of formal constitutions has a short history in Islamic
countries that traditionally subscribed to the Sharī‘ah and, out of a sense of veneration to it, did not entertain
the idea of a formal constitution.’
55 The Weimar Constitution, like the contemporary French and Russian ones, trusted the President with the
duty of upholding the Constitution. Being named the ‘guarantor of the Constitution’ is often interpreted as the
source of specific power or legitimacy of the President who may feel called to rebalance the constitutional order.
56 Supremacy does not preclude the possibility that the constitution itself sets certain pre-constitutional
laws beyond the purview of the constitution (Singapore, Article 9(6): laws which authorize the arrest and
detention of any person in the interests of public safety, peace and good order).
57 This is known as the horizontal or ‘third party effect’ (Drittwirkung) in Germany and as the state action
doctrine in the U.S. See further Chapter 10, 3.2.
The situation is different when a constitution lists the general tasks of government and
contains programmatic and ideological statements. These sections may be read as empty
words: courts are pre-empted by the very language to make the government carry out state
objectives and tasks in a prescribed manner. Some Supreme Courts, for example, in India,
revolted against this state of affairs, by enforcing the Constitution’s programmatic provi-
sions contra legem.58
The acceptance of the supremacy of the constitution and its direct applicability in cases
where there are lacunae (gaps) is not without its problems, partly because it may result in
legal uncertainty. The provisions of a constitution can be very vague, resulting in conflict-
ing interpretations.59 When it comes to the legal application of the constitution those who
are called to apply it often look beyond the text of the document that was promulgated
under the heading of constitution in the official gazette. Regulation of government cannot
be limited to the constitutional document of that appellation, although it has a central
position in constitutional law. There are norms outside the text of the constitution which
are of fundamental relevance, and there are constitutions which are a loose collection of
constitutional or cardinal laws (see the French Third Republic (1870–1940)). In the U.K.
the constitution is comprised of written elements (like Acts of Parliament and common
law) and unwritten elements, such as constitutional practices consolidated into conven-
tion with binding legal force. Although the latter are part of the constitution, they are
traditionally not enforceable in court.60 Constitutional interpretation, especially by courts,
will authoritatively determine what the current meaning of the constitution is, and also
determine the sphere and contours of constitutional law.61
Constitutions are legally binding, but they are more flexible than an ordinary statute
with limited power to determine what will happen in its name. In many respects, they are
only frames. And it is not only that the frame is often filled with unexpected content, but
also that the very frame may change its shape. ‘The Constitution is only to provide an
opportunity through which a system may develop.’62 A gradually changing one or a differ-
ent set of rules may result in a completely new game (for examples see Box 1.4). The
elements remain the same but, with an unnoticed shifting of points, the train of the state
will arrive at an unexpected or unknown railway station.
This book is primarily concerned with the legal constitution in its relation to constitu-
tionalism, as an endeavour to let freedom flourish. But such legalism does not make us
blind to the social and political realities of the constitution and constitutional law: a con-
stitution is effective as part of social action and it is relevant if socially accepted
and applied. We recall the British-American political activist, Thomas Paine’s (1737–1809)
warning:
In fine, society performs for itself almost everything which is ascribed to government. . . .
Government is no further necessary than to supply the few cases to which society and
civilization are not conveniently competent. . . .
Formal government makes but a small part of civilized life . . . It is to the great and funda-
mental principles of society and civilization . . . —to the unceasing circulation of interest,
which passing through its million channels, invigorates the whole mass of civilized man—it
58 See Chapter 10, 3.2.

59 Chapter 9 on constitutional adjudication.
60 A. V. Dicey, Introduction to the Study of the Law of the Constitution [1885], 3rd ed. (1889) 24.
61 For a discussion of constitutional interpretation see Chapter 9, 4.
62 C. W. de Vries quoted in G. van der Schyff, Judicial Review of Legislation. A Comparative Study of the
United Kingdom, the Netherlands and South Africa (Springer, 2011) 24.
Box 1.4
In certain instances, a constitution is built up gradually by incorporating previously separate
legal instruments. The French Constitutional Council recognizes as the constitution a ‘block
of constitutional norms’ (bloc de constitutionnalité) as the legal basis for constitutional review.
In addition to the 1958 Constitution, the bloc includes the Preamble of the 1958 Constitution
with the further sources mentioned there, namely the 1789 Declaration of the Rights of Man
and Citizen, the Preamble to the Constitution of 1946, and the Charter for the Environment
of 2004, as well as ‘fundamental principles recognized by the laws of the Republic’ (PFRLR)
and other principles and objectives with constitutional value. The expansion of the block
of enforceable constitutional norms results in the expansion of the reach of constitutional
review exercised by the Constitutional Council.
In the 1980s and 1990s in the spirit of new constitutionalism several Latin American con-
stitutions opened up their legal systems before international human rights norms. As a result,
international human rights treaties became part of the block of constitutional norms (bloque de
constitucionalidad) and limit the powers of national constitutional actors in the hands of
constitutional courts. The openness of national constitutions to international human rights
norms was seen as a symbolic gesture, as well as a p ractical safeguard against national gov-
ernments with authoritarian tendencies.63
is to these, infinitely more than to anything which even the best instituted government can
perform that the safety and prosperity of the individual and the whole depends.64
It is so unfortunate that the number of instances where society as inconveniently incom-
petent has increased dramatically. While it is still true that formal government is only a
small part of social, even of political, life, it is also the case that it has grown immensely
since 1790. Government, and hence constitution, became more influential, more founda-
tional (in obvious ways and through millions of hidden channels) and this has increased
the relevance of the legal constitution in a much more legalistic social world.
1 . 4 C on s t i t u t ion s as a g e n re of pol i t ica l

se l f- e x pression
The Romans had the brilliant idea of putting wine into glass bottles. Today a civilized per-
son drinks wine that is poured from a glass bottle or decanter and believes that it tastes
better this way. This does not rule out the possibility of drinking beer, or a bright future
when for environmental or other imperative reasons there will be other forms of wine
packaging. Likewise, a constitution is understood to be the proper packaging of the polit-
ical foundations of a community organized into a state. And yet, once upon a time, liberals
and independence fighters were ready to die for having such documents!
Many contemporary constitutions and their fundamental amendments are the work of
technicians of law and power, copied or stitched from existing constitutional solutions.
63 V. Undurraga and R. J. Cook, Constitutional Incorporation of International and Comparative Human
Rights Law. The Colombian Constitutional Court Decision C-355/2006, 215, in S. H. Williams, ed. Constituting
Equality. Gender Equality and Comparative Constitutional Law (Cambridge University Press, 2009) 224–31.
64 Th. Paine, Rights of Man, Part II [1792], 155 in Th. Paine, Political Writings, B. Kuklick, ed. (Cambridge
University Press, 2000) 165, 166, 166–7.
Even when we discount those copies which serve simply as certificates or the decorum
of state existence, the use of standard constitutional solutions reflects the fact that the
original concerns present at the time of the ‘invention’ of constitutionalism remain rele-
vant for the genre. A constitution is a document that looks like the U.S. or the Belgian
Constitution: it will deal with similar matters using a structure (even terms) that are
similar to the ones familiar from these documents.
With the exception of the U.S. Constitution, the first attempts of liberal constitutional-
ism failed,65 but the legitimacy of the form survived. Government power had to be struc-
tured according to a written document, to the extent that the French monarchy was
restored in 1814 by a Charter. True, it originated from the King (Charte octroyée) and not
from the people. His Majesty imposed on himself certain parliamentary restrictions. The
King remained the source of his self-limitation, as the monarchists could not accept that
royal (state) power could have any external origin (certainly it could not come from
bloodthirsty, pro-Napoleon French people).
The first lasting (liberal) constitutions are the Norwegian66 (1814, under the influence
of the Cádiz Constitution67) and the Belgian ones (1831), followed by the Swiss
(1847, fully revised in a wholly liberal spirit in 1874). Other constitutions were primarily
generated by state (empire) consolidation or unification (Germany, Austria, and Italy,
with strong liberal elements). By the early twentieth century the ‘modern classics’ of con-
stitutionalism have created a new form to articulate the political community. The label that
provided legitimacy and authority became attractive. Sixty per cent of the text of the 1864
Constitution of Romania was identical to the 1831 Belgian one, in the nineteenth century,
Latin American constitutions competed in imitation of the Cádiz Constitution on the one
hand, and of the U.S. Constitution on the other, starting with the constitutions of Venezuela
(1811) and Mexico (1824).68 This modern liberal constitution became the genre thanks
to a certain political and cultural path-dependence: success breeds proliferation. Besides,
modernizing communities came to see the advantages of a constitutional arrangement. If
you wish to have a constitution it should contain the structural elements of model consti-
tutions. Contrary to Schiller’s adage, posterity does weave garlands for imitators, at least
in law.
65 The 1791 French Constitution, just like the liberal constitutions of the revolutionary aftermath (Cádiz
Constitution, 1812), were extremely short-lived. The Portuguese Constitution of 1822 remained in force, with
interruptions, for a decade, but was the centre of ardent political struggle. And the Cádiz Constitution
remained influential abroad long after its death. G. Frankenberg, Constitutional Transfers and Experiments in
the Nineteenth Century, 279, in G. Frankenberg, ed. Order from Transfer, Comparative Constitutional Design
and Legal Culture (Edward Elgar, 2013).
It is remarkable and even hard to picture today that the political conflict in a country can be centred for
decades around the constitution!
66 Here the King exists ‘by the will of the people’. When the Union with Sweden was dissolved in 1905, the
Danish Prince, who was invited to the throne by the Norwegian Parliament (Storting) accepted it only under
the condition that the invitation be reinforced by referendum. Arguably, even if Norway became a hereditary
constitutional monarchy, its constitutional identity was attached to popular sovereignty. Modern parliamentarism
was introduced in Norway in 1884 and universal male suffrage in 1898, extended to women in 1913 (second
in Europe after Finland, 1907).
67 The Spanish Constitution of 1812 was enacted by the National Assembly in the besieged Cádiz
(protected by the British Navy) during the Napoleonic wars. It was very liberal by the standards of the
day for a constitutional monarchy. Because of the war it was not applied, although later it was reintroduced
twice.
68 See G. A. Billias, American Constitutionalism Heard Round the World, 1776–1989. A Global Perspective
(New York University Press, 2009) 105–41.
The spread of the model did not fully foreclose the incorporation of new elements, reflect-
ing local considerations.69 The founding father of several Latin American states and constitu-
tions, Simón Bolívar (1783–1830), while admiring of the U.S. Constitution, considered that
such a system of limited government cannot apply, as the federal system is contrary to
the interests of an infant state seeking independence. Laws should conform to climate,
customs, and character.70 This sociologically undeniable truth, notwithstanding its realism, is
a prudish invitation to depart from the principles of constitutional government. However, the
standard arrangements cannot be satisfactory without adaptation in different historical cir-
cumstances, e.g. ethnic diversity needs special arrangements (which was not even considered
in the 1831 Belgian Constitution). The dogmatic application of a constitutional model back-
fires. The low success rate of Latin American constitutions is related to a mechanical adapta-
tion of grand institutional solutions of liberal constitutional models dismissed by local elites.
The core of classic constitutions does not ask for much. It deals with a few structural issues
and offers a limited range of solutions to practical problems of governance. The original solu-
tions to the dilemma of limiting government power consist of a handful of institutional
arrangements.71 This sounds like the German concept of beer under the Beer Purity Law
(Reinheitsgebot). According to the 1516 Bavarian law still in force only water, barley, and hops
could be used to make beer. If other ingredients are added, the product does not count as
beer, despite its equally inebriating effect. While this Pilsner-type beer prevails today, with
time other additives have been introduced and the resulting beverage is still called beer.
The core chapters of the constitution are a variation of the classic constituent elements
of government adding, in variable geometry, fundamental rights. A certain traditionalism
is undeniable here. Let’s be frank: it stinks of orthodoxy. Constitutional experimentation
is rare, and seldom successful, partly because of the related costs, and partly because of
vested interest in maintaining the institutional status quo. The Constitution of the Irish
Free State (1922), which defined Ireland in opposition to oppressing British institutions,
contained a number of innovative democratic solutions which were ultimately not imple-
mented by legislation; they were abandoned.
2 C on s t i t u t iona l Fabric
2 . 1 The con s t i t u t ion of dea l s

Viable constitutions are pragmatic. Even revolutionary constitutions reflect concessions
and actual compromises that enable the peaceful co-existence of different groups, includ-
ing minorities and losers. A critical revisionist would say that constitutions are either vic-
tors’ justice or—more often—dirty deals to protect the interests of elites which feel that
they are losing their privileged position or face uncertain political outcomes.72 Rights and
69 At least since Perón’s Constitution in Argentina, there has been a growing trend in Latin America to
emphasize in the constitution that it is directed against foreign influence. Article 10(3) of the Bolivian
Constitution prohibits foreign military basis on its territory. Constitutions in Anglophone Africa often refer to
land use and the state’s powers regarding natural resources.
70 G. A. Billias, American Constitutionalism Heard Round the World, 1776–1989. A Global Perspective (New
York University Press, 2009) 127–8.
71 Separation of powers, fundamental rights, some kind of popular (later democratic) control over the
representative government, and federalism—where applicable.
72 See below, section 5.1. Note that, in contrast to this criticism, many of the contemporary social values
which were granted constitutional status and priority are not directly elitist: social rights and anti-poverty and
equality programmes in the constitution may be intended by elites to deceive the public, but technically these
are not about privileges of the elite of the day.
strong remedies to cure the violations of rights are granted to all, not for the sake of con-
stitutionalism’s darling (i.e. liberty), but simply in order to protect these elites from being
called to account and loss of status in the future.
Constitutions may be deals that consolidate the political power of elites. And yet, the
resulting constitution may still serve the community as a whole (although often at the
expense of certain groups living in that community). The U.S. Constitution is certainly a
masterpiece of utilitarian calculus, or, in less respectful terms, of able horse trading,
including the ‘dirty compromise’ that reconfirmed slavery and the slave trade. This was the
price to be paid for an efficient central power for a new, united nation. Such a strong
national power was thought to be imperative for all in the threatening geo-political
environment of the day.73
The process leading to the 1791 French Constitution may be explained as a deal to pre-
serve at least part of vanishing royal power: when Louis XVI was granted suspensive veto
only, he agreed to a power-sharing arrangement. Similar concessions were granted in face
of the revolutionary storm of 1848 by several monarchs, such as King William II of the
Netherlands. Such bargaining is perhaps most visible in constitutional settlements end-
ing civil wars and in state creation by peaceful devolution, but not unique to it. A most-
down-to-earth example of constitutional deal-making is that of the Senate of the Czech
Republic, a unitary, ethnically homogeneous state. This Senate was written into the Czech
Constitution after the peaceful dissolution of the Czechoslovak Republic in 1993 in order
to find a place for the Czech members of the Federal Council, to avoid their possible
resistance to the dissolution. In fact, the Senate was not convened until new elections
were held.
Constitutional bargains also often allow political transition (from an authoritarian/
military regime to more traditional constitutional democracy, or the other way around)
(see also Box 1.5). The constitution in all these instances will contain important guarantees
Box 1.5
Transitional provisions of constitutional standing are important to provide peace: they exempt
the transitional arrangement from revision. Many post-revolutionary and restoration consti-
tutions contain entrenched provisions that guarantee the (often ill-gained) property of the
losers, or state obligations of the past regime: all previous debts of the U.S. were constitution-
ally honoured (Article VI, Section 1). Likewise, the Charter that restored the Bourbon mon-
archy in France in 1814 guaranteed that previously nationalized property should not be
returned, established pensions would be paid out, and no one should be held liable for views
expressed before the Restoration. The German Basic Law made the Denazification Laws
(Article 139) untouchable, while the Portuguese Constitution provided that the laws on the
trial of the political police of the previous regime (PIDE/DGS) shall remain in force.
While constitutional solutions often reflect concerns of threatened elites, the strategic inter-
ests of the elites may result in institutionalizing universal rights to the benefit of the whole
community. Many Communists and trembling dictators sought political insurance via estab-
lishing a strong constitutional court, in case they were to lose the next election.74 Likewise, it
served their best interest to have strong guarantees of due process and non-retroactive penal
laws, in case they were to be called to account for past atrocities. These measures served the
outgoing leaders well, but were also advantageous against any future abuse of political power.
73 On the constitutional dealings in Philadelphia see Chapter 5, 2.

74 See further Chapter 9, 2.3.
for the current power holders. The 1980 Constitution of Chile had foreseen a possible
transition by plebiscite in 1988: it provided for a single-candidate presidential referen-
dum. The candidate was nominated by the Junta. If approved, he could have stayed for
another eight-year period. (Pinochet’s position as commander-in-chief was guaranteed
until 1998.)
Notwithstanding the pettiness in much of this parochial and elitist deal-making, consti-
tutions as deals can be advantageous for the political community as a whole. In a different
age one would have said that the spirit of the common good spoke through the self-interest
embedded into the constitution. In exceptionally blessed (or at least fortunate) moments
humans can elevate themselves above their own pedestrian concerns. Not all the conces-
sions of Louis XVI were purely serving the survival of his powers: he had his humanitarian
moments. In the summer of 1789 in France castles were burning and rumours of the Great
Fear reached the delegates of the Constituent Assembly, when the privileged, in a whirl-
pool of enthusiasm gave up their feudal privileges in a single night session. The noble
delegates gave up much more than required at that moment. This humanitarian excess is
what was written into and frozen in the 1789 Declaration and the laws that abolished feu-
dalism. The lesson is that while constitution-drafting is certainly an elite matter, the elites
do not operate in a social vacuum.75
2 . 2 The con s t i t u t ion of fears

Revolutionary constitutions which incorporated constitutionalism with lasting effect
have created new government power, but not simply for the sake of accumulating power
through smart bargains. The sad experiences of abuse of powers under George III loomed
large in the American public imagination even after the Revolution. The Founding Fathers
of the U.S. Constitution intended to prevent the use of sovereign power they had learned
to fear under the previous political regime. ‘The Framers were virtually obsessed with a
fear—bordering on what some might uncharitably describe as paranoia—of the concen-
tration of political power.’76 The popular source and breadth of executive power were per-
ceived as frightening. The Founding Fathers were acting with ‘the turbulence and follies of
democracy’77 fresh on their minds, while also anticipating a new war that they would be
unable to wage. Not surprisingly, the election of the executive was not to be entrusted to
the people: an intermediary institution, the Electoral College, was thought necessary to
counter the passions of democracy (see further in Box 1.6).
Constitutions try to prevent past abuse and conceivable dangers. And, while they are at
it, try to contain political opponents in a reasonable way that does not preclude social
cooperation.78 This is not unique to the U.S. Constitution. The 1789 French Declaration
and to some extent the 1791 Constitution focused on what the moderate revolutionaries
feared the most in the past absolutist regime. The 1831 Belgian Constitution (the beacon of
nineteenth-century liberalism) was a reaction to what was seen as abuse by the Dutch
King. The 1853 Constitution of Argentina was a reaction to preceding anarchy. Modern
75 This remains true even if, for example, the German Basic Law was certainly written with the people
absent, subdued, and partly under denazification. The potential of those absent people loomed large in the
mind of the drafting elite.
76 M. H. Redish and E. J. Cisar, ‘If Angels Were to Govern.’ The Need for Pragmatic Formalism in Separation
of Powers Theory, 41 Duke Law Journal (1991) 449, 451.
77 M. Farrand, The Records of the Federal Convention of 1787, vol. 1 (Yale University Press, 1911) 51.
78 A temporary restriction of the voting rights of earlier adversaries is common in post-conflict constitutions.
Box 1.6
The American Revolution that began in 1775–6 was a reaction to abuses of political power,
which were seen as part of ‘a settled, fixed plan for enslaving the colonies, or bringing them
under arbitrary government, and indeed the nation too’.79 Responding to this threatening
vision and a sense of sometimes purposefully provoked outrage, the revolutionaries began
very early on to create their new institutional arrangements for governing the revolutionized
political communities of the former colonies. The establishment of institutions at the state
(i.e. former colony) level was dictated by a fear of excessive colonial government power.
Though its drafting took place many years after the formative experience of the British abuse
of power, the Constitution was animated by similar concerns. The emotional experience of
fear was expressed publicly and a shared public sentiment reinforced existing feelings.
The Philadelphia Convention was hardly a place for polite exchange of scholarly theories
of government. ‘Feeling ran high at the very outset, indeed so much so that Franklin felt it
necessary to interpose a motion that “prayers imploring the assistance of Heaven . . . be held
in this Assembly every morning.” ’80 Fear of concretely anticipated arrangements was not
only a shared formative emotion, it was an important argument. This, for example, is what
James Madison (1751–1836), Founding Father and future President, had to note on 1 June 1787:
Mr. Pinkney was for a vigorous Executive but was afraid the Executive powers of the
existing Congress might extend to peace & war &c., which would render the Executive
a monarchy, of the worst kind, to wit an elective one.81
The U.S. Constitution was intended to provide an institutional device for inter-state coopera-
tion and nation-building. Within its structural arrangements we suddenly run into the fear
generated by Shays’ rebellion. The memories of the rebellion convinced the delegates to grant
power to the federal government to ‘suppress insurrections’ and to keep a standing army in
peacetime.82 Further, the selection of the rights in the Bill of Rights was intimately related to
the fundamental fears of the general public, as also evidenced in the list of grievances in the
Declaration of Independence.
oppressive regimes may have had a similar impact on successor constitutions.83 Fear of
Nazi rule and memories of ungovernability under the Weimar Republic haunted the
authors of the German Constitution after World War II. In 1958, Charles de Gaulle wanted
never to replicate the parliamentary paralysis of the Fourth French Republic in the face of
impending crisis.
Constitutions may also reflect class-based or ethnic fears (beginning with the franchise
limits in the 1791 French Constitution). Similar concerns existed in Latin America:
[t]he dangerous animals that Latin America’s constitution writers feared were the lower
classes. Inequality made the masses potentially dangerous to the elites. Thus, constitutions
79 B. Bailyn, The Ideological Origins of the American Revolution. Enl. ed. (Harvard University Press, 1992)
119. See further W. N. Eskridge and J. Ferejohn, Structuring Lawmaking to Reduce Cognitive Bias. A Critical
View, 87 Cornell Law Review (2002) 616, 638. ‘The Framers . . . wanted energetic governance but were fearful of
an overbearing government and of radical, year-to-year shifts in state policies and rules’ (emphasis added).
80 M. Farrand, The Framing of the Constitution of the United States [1913] (Kessinger Reprints, 2010) 94.
81 http://avalon.law.yale.edu/18th_century/debates_601.asp.
82 U.S. Constitution, Article 1, Section 10, Clauses 1, 12, 15, and 16.
83 See Germany, Spain, Portugal, post-Communist constitutions, and South Africa; see also the Irish
constitutions as a reaction to British colonialism.
were drafted that allocated significant power to the executive to deal with emergencies,
with the hope that development would one day make republican governance possible.
(emphasis added)84
A great number of constitutions are mechanically copied designs, without the direct social
experience or memory of despotism. As such, they are not the creatures of social or polit-
ical revolutions, yet path-dependence ensures that the original concerns and fears are
institutionally reflected. These documents may also reflect other foundational injustices,
like foreign intervention, as the current version of the Venezuelan Constitution. Other
fearful and fateful calamities may have constitution-shaping impact, too. The abhorrence
of military rule in the Japanese Constitution reflects a disillusion with and fear of return to
militarism. (Arguably this crucial provision also answered the U.S. military interest in
demilitarization. It remains a matter of continuous constitutional contest in Japan and not
a matter of absolute consensus, in part because despite the constitutional prohibition
Japan does retain a de facto military, called the Japan Self-Defence Forces.) Even lesser
past vicissitudes can have constitution-shaping force.
People who have not experienced lack of freedom originating from unlimited govern-
ment power complain that the ‘liberal’ arrangement does not solve their ‘genuine’ problems
(whether those be the lack of proper living conditions or failure to make the commands
of a religion prevail). From where they stand, preventing long-past oppression appears
irrelevant. But the fact that a design of government does not provide an answer to specific
problems cannot be held against a solution that addresses other problems. People may
not realize that their constitution, by its certified design against despotism, saves them
from a real evil. They may not be aware of the devil, but this lack of awareness does not
prove that devils of governmental abuse do not exist. In fact, the devil may have retreated
due to the constitutional design which is believed to be pointless now that the bogey is
not in sight.
Revolutionary constitutions got impregnated with constitutionalism as part of an avoid-
ance strategy. Eighteenth-century American and French constitution-makers feared the
repetition of past institutional abuse, so they installed a toolkit to prevent the return of
abusive government. To paraphrase the political philosopher Judith Shklar, constitutions
of limited government which enhance freedom are constitutions of fear.85 This fear has
many causes and layers. The concern with the return of past injustice is only the begin-
ning. There is the fundamental distrust of men who—once in power—will be carried away
by passions like vainglory (and in later days by bureaucratic irresponsibility). Fear of other
people’s brutality and stupidity is a headache enough. Fear of ourselves is most difficult to
confess and face up to. What will happen if we (the People, the ultimate source of power)
uninhibited and convinced of our supreme rights and/or uniquely national identity and/
or infallibility gain power? ‘Power corrupts and absolute power corrupts absolutely’, so
said Lord Acton (1834–1902). This is also true not only about others, but also about one’s
own power.
For Shklar, fear was a creative force, not a destructive or paralysing one. It was a cause
for critical reflection on power and its holders, resulting in a need to discuss and debate
84 M. Schor, Constitutionalism Through the Looking Glass of Latin America, 41 Texas International Law
Journal (2005) 1, 28.
85 Shklar’s liberalism of fear goes back to a fear of cruelty, an experience of Montaigne (1533–92) at the time
of the French religious wars of the sixteenth century. Protection against the threat of cruelty is ‘both the
beginning and an end of political institutions such as rights’. J. N. Shklar, Ordinary Vices (Harvard University
Press, 1984) 237.
how government should be constituted.86 It is in this sense that constitutional design has
accounted for the fear that passions will sweep away human reason and good sense.
Constitutional design can also be the means of self-control in fear of one’s own self.
The constitutional arrangements of limited government are certainly not panicky gut
reactions, but calculated, rational reactions to the experienced and perceived fear.87
Constitutional solutions are built on means-ends rationality. Acknowledging that specific
constitutional sentiments (those of the framers, and of the ratifying public at large) were at
work in constitutional design is not to deny that constitution-drafting is an exercise in
long-term problem-solving, to the best knowledge of the participants. Constitutions intend
to provide solutions for effective government in order to provide security and order through
preventing the recurrent abuse of power. Constitutional institutions are intended to tame
passions by reducing the likelihood of their eruption or at least the damages they cause.
The rationality of a constitutional solution is often dictated by familiar negative experiences
which are best to be avoided in the future. For example, a bicameral legislature may be
slow and often quite ineffective. yet the bicameral design makes much sense, if one assumes
that people will become tyrannical when left to decide matters in poorly structured groups
exercising unlimited sovereign power through majority votes in a single chamber.
Box 1.7
Justice Brandeis of the U.S. Supreme Court in Whitney v. California said the following:
Those who won our independence believed that the final end of the state was to make
men free to develop their faculties, and that in its government the deliberative forces
should prevail over the arbitrary . . . They believed . . . that the greatest menace to free-
dom is an inert people; that public discussion is a political duty; and that this should be
a fundamental principle of the American government. They recognized the risks to
which all human institutions are subject. But they knew that order cannot be secured
merely through fear of punishment for its infraction; that it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; . . . Recognizing the occa-
sional tyrannies of governing majorities, they amended the Constitution so that free
speech and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and assembly.
Men feared witches and burnt women. It is the function of speech to free men from the
bondage of irrational fears.88
The words of Justice Brandeis may not reflect historical facts, but this is immaterial: it is a
vision of constitutionalism as risk-taking, an attempt to overcome fear-based considerations.
The liberty-based strategy outlined by Justice Brandeis does not deny the possibility of the
evil that government can be.
86 J.-W. Müller, Fear, Favor and Freedom, Judith Shklar’s Liberalism of Fear Revisited, 39, in R. Uitz ed.,
Freedom and Its Enemies, The Tragedy of Liberty (Eleven, 2015) 48.
87 Of course, constitutions might be at the same time reasonable goal-serving solutions of social conflicts or
reasonable (efficient) answers to irrational (inefficient) public and political behaviour. The constitutional
protection of a central bank that safeguards price stability is a rational (purpose-serving) institution against
short-term spending decisions of parliamentarians seeking re-election.
If these fundamental fears have corresponded to rights concerns voiced by Locke, this is no surprise. He had
his own similar frightening experiences with tyranny, disorder, and religious persecution during and after the
English Revolution.
88 Whitney v. California, 274 U.S. 357, 375–6 (1927) (Justice Brandeis, concurring).
The modernity of Enlightenment is built on the rational suppression of fears and pas-
sions. The image of a constitution as the means for creating a rational order, and as an
achievement of conscious engineering reflects the Enlightenment tradition. True rational-
ism is not oppression, but the recognition and comprehension of those fears. Institutional
solutions in constitutions provide a rational answer to those experiences and dangers that
induce fear. The beauty of constitutional institutions inspired by fear is that these arrange-
ments help to liberate the citizen of her fears. One can act freely, if she can rest assured
that political institutions and procedures ensure that there is no need to be afraid of
government power (see further in Box 1.7).
2 . 3 The con s t i t u t ion of ( dis ) t rus t

The acknowledgment that fear drives the minds and pens of constitution-makers is not
very attractive. It is an admission of human frailty. Fear is a negative emotion and a source
of bad judgments. As a source of constitutional design, it is hardly inspiring to any citi-
zenry that would like to see a constitution as a source of moral inspiration, or a matter of
national pride. The precautionary fear that is embedded in constitutions is not attractive:
it is complicated, expensive, and counter-intuitive. Trust is a much more appealing frame
and force of social organization than distrust. And yet, given the enormous risk of abuse
of power, constitutions reflect distrust of power. At the same time as instruments of gov-
ernment they must consolidate government and provide guarantees that build public
confidence in government.
Fear of the past and other popular sentiments, like envy or vengeance, do not pre-
determine the constitution even if the reason mobilized by these sentiments is what has
designed its key institutions. Constitutionalism as a moral enterprise is a design dictated
by distrust, but a reasonable one. The Scottish Enlightenment philosopher David Hume
(1711–1776) argued that, ‘in contriving any system of government, and fixing the several
checks and controuls of the constitution, every man ought to be supposed a knave . . . ’.89
Where constitutions seem to rely on trust in office-holders, e.g. where the president has
formally unlimited power to nominate (call, propose) a prime minister in a parliamentary
republic, this is often the result of the need for flexibility (i.e. leaving room for political
discretion). Alternatively, constitution-makers may leave contested matters undecided in
order to be able to reach agreement on the constitution as a whole, and not as a matter of
trusting the honesty and wisdom of the president.
We do not deny that ‘[t]here are grave dangers in following the advice of . . . Hume and
designing institutions that are fit for knaves, based on distrust. The trouble with institu-
tions that assume that people will not be virtuous is that they destroy virtue . . . But what
about when citizens [or government officials] are knaves . . .?’90 Here a level of public
involvement may be of help, without abandoning the design dictated by distrust.
Distrust in government may be a creative force. In a democratic constitution distrust
makes government responsible and responsive, and, as such, ultimately, enables self-
government. Tools of political accountability (including freedom of speech, freedom of
information, freedom of assembly) are driven by an impulse to contribute to the public
discourse through criticizing the government.91 Distrust and outrage are the muse of the
89 D. Hume, Essay of the Independency of Parliament [1742], 24, in David Hume. Political Essays,
K. Haakonssen, ed. (Cambridge University Press, 1994) 24.
90 J. Braithwaite, Institutionalizing Distrust, Enculturating Trust, 343, in V. Braithwaite and M. Levi, eds.
Trust and Governance (Russell Sage, 2003) 351. 91 See Chapter 7, 3.2.
dissenter: those who ask questions about what the government did and why, usually do not
mean to flatter, they mean to offer informed criticism through rational debate, or at least
wish to express disagreement. Such active and critical engagement with public affairs is a
promising sign for constitutionalism. Lack of democratic participation undermines the
legitimacy of a constitutional system, increasing the costs of coordination. In the absence
of voluntary cooperation and popular trust in government, the costs of monitoring and
policing increase. Dissatisfied people taking to the streets constitute a serious security risk
and create a demand for policing. Oppression is costly: it relies on running an oppressive
machinery. But here again, one cannot trust oneself: democracy as self-government is in
need of constitutional restrictions.92 Constitutional constraints follow from the dictates of
the rightful distrust of people in their own selves.
Distrust in a particular government is not to be mistaken for distrust in the constitution
or in representative government. A political community engages in writing a constitution
in the hope of being able to live together in peace. The voters entrust their elected repre-
sentatives (i.e. people whom they may never have met, people whom they only control
through potentially not re-electing them every few years) with the power to enact legal
rules for the community as a whole. Constitutional law provides rules and enforcers
which make such trust realistic. Placing limits on the powers of office holders is prem-
ised on the belief that, once elected, office holders will not violate the prescriptions of
the constitution wilfully, and that they will not use their constitutional powers to gener-
ate tensions or deadlock gratuitously. Constitutional law and constitutional actors are
the guarantees that provide the condition for this trust. Distrust in the office holders of the
day sets in motion constitutional mechanisms which enable the political actors and the
citizenry in particular to preserve trust in the overall political arrangement dictated by
constitutionalism.
3 S ocia l Org a n i z at ion a n d

C on s t i t u t iona l Order
3 . 1 The con s t i t u t ion of ambi t ion s
To prescribe the social organization of the political community was the deep meaning
of pre-liberal, pre-legal constitutions, starting with ancient Greek city-state constitutions.
According to Plato (428/427 bce–348/347 bce) and Aristotle (and echoed by Blackstone
for England in the eighteenth century) the constitution is a specific political relationship
among political classes in the political government, providing—in the best-case scenario—
a blueprint for enduring social peace.93 Even modern, egalitarian-individualistic constitu-
tions maintain elements of this social constitutionalist approach, defining social hierarchies
as common values of the political community.
The structural choices of constitutional government are a reflection of underlying social
and political value preferences. To choose (to accept) to be ruled by an Emperor is not just
a trivial matter of organizing the government in the technical sense. An elected legislative
assembly or a hereditary King who rules by the grace of God reflects a fundamental choice
between competing political values. To live under a president elected to a fixed term is not
the same as being ruled by a hereditary monarch of equal powers. Likewise, in a country
where different religious denominations with strong demands strive for social control, the
92 See further Chapter 3. 93 See further Chapter 2.

position of the constitution on church-state relations will reflect a choice between ideo-
logical commitments, dominant value preferences, and practical needs.
The classical constitutional text is satisfied with the legal sanctioning of the fundamen-
tal arrangements necessary for the effective use of limited government power. Apart from
universal liberties, which were taken as a given, the Enlightenment-influenced (and,
later, liberal) draftsmen did not wish to create national unity on a specific moral basis.94
These draftsmen did not prescribe special tasks for the government. They acquiesced in
the socio-economic status quo,95 but they did not prescribe it; nor did they prescribe a
utopian social order. Although the 1791 French Constitution was intended to sanction the
results of the Revolution, it took the fundamental restructuring of social relations for
granted and it did not prescribe it. It simply recognized formal equality, ironically exactly
when it tried to mitigate its political consequences, limiting the franchise, in line with the
status quo. (Utopian elements appeared, however, in the 1793 Jacobin Constitution in
France.)
The constitutionalization of substantive issues was not part of classic constitutionalism.
While the efficiency of law depends on public acceptance, constitutionalism, which is
to a great extent counter-intuitive, intended to resist certain popular beliefs. Although
constitutional programme-setting (programmatic constitution) seems antithetical to con-
stitutionalism, today we observe a number of constitutional democracies which express
and mandate ideological preferences. The problematic approach does not fit easily in the
frame created by classic constitutions. Nonetheless, programmatic constitutions remain
viable for constitutional democracies (see the example of Ireland, Box 1.11).
In some instances, the constitutionalization of policy programmes is practically inevitable,
because in the absence of such remedial commitments the social-political status quo
would undermine the very foundations of the constitutional order: the constitution would
perpetuate disruptive social divisions (see Box 1.8). This could endanger the peaceful
living together of human beings with equal rights96 (see also India, Box 1.13). In particular,
certain forms of social injustice, in particular structural injustice perpetuated by govern-
ment (e.g. Nazi or old South racism, apartheid, the caste system) may necessitate program-
matic constitutional remedies (e.g. provisions to undo the remnants of the caste system
in India, and anti-apartheid and anti-segregation constitutional remedies in South Africa
and in the United States).
It is argued that constitutionalism in Asia prefers development (and—perhaps in view
of ‘Asian values’—specifically economic development) as the centre of governmental
concerns, with or (in the official versions) without disregard of fundamental rights. The
texts of Asian constitutions do not necessarily reflect a development-centred constitu-
tional vision. The Constitution of Singapore, for example, is a classic ‘rights, competences
and organization’ document without programmatic or ideological elements. In contrast,
Taiwan with a vibrant constitutional life has programmatic provisions (Article 142, equitable
distribution of national income). Whatever economic policy is followed, individual rights
are protected even at the expense of traditional family values in Asian countries with
94 Except for nationalist liberals who took the value of being part of a national community for granted,
perhaps with natural rights to exist.
95 Constitutional acquiescence in the economic and social status quo is often deemed as endorsement,
hence the socialist (e.g. Marxist) criticism that constitutional neutrality is a sham and it is simply a tool of
government intended to preserve capitalism and the necessary class and imperial domination and oppression.
On constitutional acquiescence see Chapter 2, 1.2.
96 On homogeneity and equality as preconditions of constitutionalism, see Chapter 2, 3.2.
Box 1.8
The prohibition of divorce in the 1937 Constitution of the Irish Republic offers a famous
example of constitutionalized ideological bias, imposing the majority’s convictions on gov-
ernment (and the minority) in a binding manner.97 The Constitution, under Prime Minister
de Valera’s drafting, was rather ideologically inspired, reflecting the Catholic social teaching
of the day. The Archbishop of Dublin was a major inspiration and the draft constitution was
sent to the Vatican for approval. De Valera’s choice was intended to reinforce a Catholic Irish
identity. For de Valera the Constitution outlined the way people organize their lives: mores
and shared convictions were to be written into the constitution. This is a widely held belief
among ideological constitution-makers and a forceful pragmatic consideration of politicians.
It goes back to the assumption that laws have to reflect the spirit of the people or nation
(see Savigny (1779–1861), the German lawyer and historian in a romantic nationalist sense,
and Montesquieu, in a more liberal sense).
The prohibition on divorce remained the centrepiece of social contest and division for
decades. Only a second, government-initiated referendum in 1995 could do away the consti-
tutional prohibition of divorce, after long and divisive social strife where the Catholic Church
campaigned against political parties and government. Yet, it is perhaps the otherwise
overwhelmingly value-neutral U.S. Constitution that offers the most spectacular failure
of constitutionalizing specific value preferences of a (temporary) majority. In 1919 the
Eighteenth Amendment introduced a ban on the manufacturing, sale, and transportation of
alcohol (Prohibition), only to be repealed in 1933, because it induced a serious increase in
organized crime, Al Capone-style.
emocratic aspirations and established democratic systems.98 It is not economic develop-

d
ment programmes, but security concerns that challenge constitutionalism.
An ideological programme turned into an imperative constitutional prescription is a
mobilizing instrument which legitimizes the use of power instead of constraining its use.
This does not mean that constitutionalism denies the legitimacy of government action to
follow democratically defined social or political goals. Instead, it limits the choice of tools
applicable for the achievement of goals. When the democratically determined goals are
primarily ideological (e.g. religious or other identity-based programmes) it is likely that
these goals will conflict with the all-inclusive (neutral) values of constitutionalism. Where
the ideological demand of a programme written into the constitution prefers a specific way
of life, which is incompatible with living together as equals, a constitutional prescription
will fall outside the perimeters of constitutionalism. Where a constitutional provision or
popular policy prioritizes a goal to the detriment of the rule of law (e.g. ‘relentless fight’
against corruption, terrorism, drug trafficking, etc. without the formalities of the law) this
will become incompatible with constitutionalism as well.99
97 In theory divorce was possible before 1937, at least for the wealthy who could petition Westminster, but
it was seen as utterly British and therefore un-Irish and un-Catholic. The Irish mentality rejected everything
British and identified themselves with Catholicism. The Constitution of the Irish Free State (1922) did not take
a position on the matter.
98 J.-R. Roh and W.-Ch. Chang, The Emergence of East Asian Constitutionalism. Features in Comparison,
59 American Journal of Comparative Law (2011) 805, 832.
99 While the Philippines has a robust constitutional system, at the time of writing (2016) the newly elected
President seems to encourage extra-legal killings of narco-trafficants without constitutional reaction. In fact, he
declared earlier that he would pre-empt eventual attempts at impeachment directed against him.
Once included in the constitution, state objectives may become political in the way that
everyday politics is.100 True, in exchange for this, political issues may be decided not entirely
on the basis of power relations, but instead be given a constitutional-legal dimension. This
makes more balanced solutions possible and may confine political conflicts within the con-
stitutional framework. But this is a dangerous game. In the political sausage factory social
justice or other governmental objectives easily deteriorate into the imposition of a specific
set of values, a choice over what the good life is. Consider the example of homogeneous
Catholic values in de Valera’s Ireland, mentioned in Box 1.8. The value choice restricted
individual freedom in line with prevailing convictions. Even if people had no firm views on
divorce, with the Constitution they were made to accept the Catholic Church’s authority in
the matter. Such constitutional position may count on social support until unconditional
affirmation exists for the conviction—and even beyond that. In fact, once constitutionalized,
a conviction will continue to survive in law, even where public support fades away—until
there is sufficient momentum to remove it from the constitution. The majority in Ireland
seemed to be for divorce long before the successful referendum abolishing the ban in 1995.
Whatever the risk of programmatic constitutions, governmental duties and authoriza-
tions to act are increasingly assumed in the name of social objectives and values. Such
constitutional clauses extend the scope of government action, by extending government
functions, restricting democratic choice and, as a result, increasing control over the
individual.
3 . 2 The con s t i t u t ion of we l fare

Constitutions were always sensitive to social peace and order when establishing govern-
ment. In the second half of the nineteenth century the need to deal with potentially dis-
ruptive class conflicts resulted in increasing emphasis on the ‘social problem’. Demands of
class justice were first handled at the level of legislation. By the twentieth century these
concerns found their way into higher law. The Mexican (1917), the German (Weimar, 1917),
the Soviet Russian (1936), and the Irish (1937) constitutions were all concerned with social
justice, though in very different ways, granting mostly non-enforceable social rights and/
or prescribing socio-economic state goals and obligations.101 After World War II new con-
stitutions (France 1946, 1958; Italy, 1947; Germany, 1949) defined themselves as social
welfare constitutions, or defined the state as a ‘social state’, irrespective of the practical
consequences of such ideological commitments.102
In the early days of constitution-making the government’s involvement in economic
and cultural activities was moderate, among other things, because of the very limited material
and regulatory capacity of the state and its bureaucracy. Although to a great extent the
administrative state intended to disregard the traditional constitutional constraints, in the
100 In 1917, in an effort to perpetuate the armed victory over the conservatives who were supported by the
Catholic Church, the Mexican Constitution radically restricted the independence of the Church (not touching
upon the free exercise of religion). In the name of justice, the Constitution made land reform permanent, and
the Institutional Revolutionary Party gained power. As a result, social division was further institutionalized
and, to a certain extent, economic backwardness was, too.
101 By the time of the Great Depression, the need to include this element into the Constitution was gradually
recognized in constitutional scholarship as inherent to constitutionalism (see Hermann Heller’s doctrine of the
Social State of Law (Sozialer Rechtsstaat, around 1930), or Justice Brandeis in the U.S. about the same time). See
further Chapter 10, 2.3.2.
102 Article 3(2) of the Italian Constitution is perhaps the best summary of this concern and the reasons
justifying it: ‘It is the duty of the Republic to remove those obstacles of an economic or social nature which
constrain the freedom and equality of citizens, thereby impeding the full development of the human person
and the effective participation of all workers in the political, economic and social organisation of the country.’
twentieth century, when claims of public benefits became politically influential, it was
expedient to include the fundamentals of governmental services in the constitution.
Within the frame of the instrumental, goal oriented understanding of the state, the primary
bond of the state is not the rule of law, but common commitment to a shared purpose; and
for implementing that purpose, control and decrees are more appropriate than laws, while
administrative bodies, inspectors and tribunals, planning agreements and various types of
interest group ‘intermediation’ are preferable to an independent judiciary and police force.103
Given the constitutional demand of limiting government power, any new governmental
power demands constitutional justification. This is also reflected in the idea of enumerated
powers and the need of legal authorization for all government action, a premise also asso-
ciated with the rule of law. It is in this spirit that government agencies can act only on
grounds of specific authorization. In this regard, a general governmental duty to care for
the public welfare does not suffice.
The governmental (executive) control over social welfare services has increased the power
of the executive branch. Citizens today are more dependent on the government and the ser-
vices provided by it than ever before (see Box 1.9). This dependence has transformed politics
fundamentally. Electoral competition among political parties has, very often, become a bid
to provide more services in order to catch the rewarding votes of grateful beneficiaries. The
contemporary administrative welfare state has grown into existing constitutional structures
which expressly authorize government interventionism, or at least are interpreted as doing
so. The text of the constitution can remain unchanged: it is reinterpreted in favour of
executive discretion. Where the constitutional text does not help, it is considered more or
less irrelevant. The separation of the private and public spheres becomes blurred. In the
name of safety and social justice, law becomes a matter of policy at the expense of individ-
ual liberties and rights. The above tendencies are even stronger in the preventive state, a
contemporary version of the welfare state threatened by international terrorism.104
Box 1.9
Twentieth-century constitutions had to find forms that would consider socio-economic
activities of governments either through interpretation or by constitutional amendment. The
right to benefits and the increased governmental control of private life had to be reconciled
with classic civil rights and liberties. The demand for welfare benefits endangered classic
individual liberties. While welfare benefits granted as constitutional entitlement endorse
human capacity, the dependence on benefits, recognized as a constitutional right, presents
new threats to individual autonomy. Benefits may enhance or undermine the conditions for
participation in the processes of representative democracy. After all, what kind of ‘independ-
ent’ political decision can be expected from those who depend on the government’s services
and hand-outs? Such dependence of the Roman plebs undermined the Republic. Beneficiaries
of government largesse will readily endorse institutional self-aggrandizement, if they are told
that this will result in access to further benefits and other social services. It is hard to resist
the government’s demand for personal data when better (more) social services or public
security are promised in exchange. (Likewise, people accept private data mining in exchange
for free services on the internet without flinching. Your email address for a horse!)
103 N. O’Sullivan, The Political Theory of Neo-corporatism, 3, in A. Cox and N. O’Sullivan, eds. The
Corporate State. Corporatism and the State Tradition in Western Europe (Edward Elgar, 1988) 23.
104 See Chapter 11, 3.
Managerial mentality infused with the logic of pedestrian economic rationality becomes
tolerated in constitutional law and social practice. Social engineering calls to disregard
what is perceived as outdated, formalistic constitutionalism. In consequence, constitution-
alism will be hijacked, or—most likely—sidelined into irrelevance. This is understandable
in a society seeking instant gratification. After all, constitutionalism does not usually
promise tangible short-term advantages, while this is what matters for vote-maximizing
politicians who use the language of economic utilitarianism. From this perspective, the
government is a goal-oriented, task-solving machine; it will follow public expectations
of instant gratification of personal needs and desires. Compared with the ‘simple’ and
spontaneous solutions of direct interest representation in neo-corporatist structures,
negotiations required by classic constitutional and legislative deliberation flounder. Classic
representative government and law-making through reasoned debate in the legislature are
seen as a waste of precious time and money. Constitutional formalities and formalism are
enemies of a quick fix and easy grabbing of public assets, a major political ambition in
many democracies.
4 P re - commi t me n t: U lysses B i n ds H imse l f

to t he M as t
Constitutions seek to prevent tyranny by preventing predictable future mistakes.105 Creative
advance planning aids in defeating passions; it also tames institutional and personal self-
perpetuation. To borrow Jon Elster’s metaphor, the constitution-maker, like the ever-so-
resourceful Ulysses, ties himself (and all constitutional actors) to the mast of his ship,
because he wants to listen—has to listen—to the magical song of the Sirens. And he knows
himself and the Sirens well enough to know in advance that he will not be able to resist the
temptation of their song. The smart way out is to seek the ‘help’ of a rope to prevent him
from steering the ship to its demise, when intoxicated by the Sirens’ song. The ship sailed
along with its captain safely tied up, as Ulysses gave instructions to the crew beforehand,
and then filled their ears with wax, so they could not be lured by the Sirens’ song.
The idea that a constitution is a matter of pre-commitment was already prevalent among
the American Founding Fathers:
[T]here are particular moments in public affairs when the people, stimulated by some
irregular passion, or some illicit advantage, or misled by the artful misrepresentations of
interested men, may call for measures which they themselves will afterwards be the most
ready to lament and condemn. In these critical moments . . . [it may be] salutary . . . to sus-
pend the blow mediated by the people against themselves, until reason, justice and truth,
can regain their authority over the public mind.106
Constitutions differ, depending on when and where we, a people of Ulysses, expect to hear
the Sirens’ song. Constitutions decide on how tightly we tie ourselves to the mast and how
easy it is to release the rope. As democracy has been built gradually into constitutionalism,
the Sirens’ song became a voice from within; the thirst for more power will be our will
(or at least the wish of the current majority). The first objective of constitutional self-
105 On the constitution as pre-commitment see C. R. Sunstein, Designing Democracy. What Constitutions
Do (Oxford University Press, 2001) 96–101.
106 Federalist no. 63 (Madison), 382, in A. Hamilton, J. Madison and J. Jay, The Federalist Papers [1787–88]
(Mentor, 1961) 384. See already Ch. S. de Montesquieu, The Spirit of the Laws [1748], A. M. Cohler, B. C. Miller
and H. S. Stone, trans. and eds. (Cambridge University Press, 1992) 134.
limitation is to increase resistance against the dictates of the actual moment. If our ship
sails past the Sirens and someone wants to swim back, that is an entirely different matter.
One cannot live tied to a mast forever. If someone wants to experiment, so be it. At worst,
the person will drown, but it will be his own folly and he will not sink the entire ship with
his mates and family on board.
It is somewhat misleading to talk about self-restricting or self-limiting power. Admittedly,
there are instances of actual self-restriction, when a constitutional actor unilaterally gives
up parts of its power, or a political community as a whole forgoes certain practices such as
slavery, torture, or capital punishment. For the most part, however, in a constitution limits
on power stem from the constitutional arrangement of institutions and rules that enable
the constitutional actors to limit each other. This is the logic behind horizontal and vertical
separation of powers (checks and balances), the trusted nuts and bolts of constitutionalism.
The constitution itself is about pre-commitment: the rope is tied to the mast with intri-
cate knots. It is inspired by the genius of self-restraint, and it is enforced through peer
pressure. Constitutional actors force each other to observe the pre-set rules of self-
restriction. Competing and cooperative branches push each other to act and be active, as
foreseen by the constitution. This is how and where ambition counters ambition. This is
how constitutions serve as tools of effective government: they provide rules and opportun-
ities along with constraints on power for the coordination of governmental activities,
thereby also enabling social coordination outside government.
Such pre-commitment is safeguarded by procedural, institutional, spatial, and
temporal rules which constrain power by compartmentalizing it and delaying its impact.
Some of these rules are accidents of historically determined power-sharing. Others are
deliberately designed to preclude further concentration of government power, to limit
opportunities for arbitrary departure from rules, or to cool hot-headed decisions. Procedural
requirements slow down (delay) law-making: two readings in the legislature take more
time than one. Institutional rules set up organizational barriers (as separation of powers
and bi-cameral legislatures), which force power holders to make concessions to each
other. Geographic divisions (federalism and decentralization) reflect and formalize the
management of diversity. Temporal rules (e.g. regular elections, term limits for certain
offices) preclude the perpetuation of power.107 These rules are most often subject to bur-
densome amendment processes (e.g. requiring super-majority, inter-branch agreement,
staggering the decision in time etc.), which result in the entrenchment of the terms of
pre-commitment. Such hurdles limit the powers of the majority by making departures
from pre-commitment difficult: they are the ultimate ‘tie to the mast’.108
Pre-commitment also enables the predictable interaction of government with its environ-
ment (what kind of commands can be imposed on society, how government can be filled
with people through elections or merit-based application to civil service positions, etc.).109
While ensuring that the government will not interfere in their affairs self-interested indi-
viduals will be in a position to solve their social coordination problems according to
pre-set rules. Here constitutionalism protects the private sphere against governmental
incursions, while providing access to the public sphere for citizens. Thus, the constitution
safeguards social and personal self-regulating autonomy.110
107 See the Latin American examples below and in Chapter 7 on techniques of overcoming executive
supremacy. 108 See Chapter 1, 5.2 on constitutional amendment.
109 Russell Hardin attributes a central role to coordination in explaining the constitution. See R. Hardin,
Liberalism, Constitutionalism, and Democracy (Oxford University Press, 1999) esp. Chapter 3, 82.
110 Ideologically or welfare-oriented (mission) constitutions enter to some extent directly into social
coordination, including active forms of guidance. See below.
While the mast of the constitution is secure, such rules have practical effects, albeit
within limits. The rope does not hold where the mast is cut or torn out. When a president
seeks re-election in violation of a term limit through a referendum, it is quite possible that
he will be able to carry the vote even without enthusiastic supporters. All it takes is a weak
constitutional court and a passive, segmented majority of the population to acquiesce.
Dictators in the making can always switch over to a revolutionary constitution, by simply
dismissing the constituent body (resorting to incapacitation by decapitation, for example)
in disregard of entrenched rules.
So long as the constitutional actors are ready to play by the book they make the road to
despotism bumpy. However, if people are inert and their deputies corrupt, there is little
genuine force to sustain limited government. As Alexis de Tocqueville (1805–1859), the
insightful French observer of early American politics noted, the problem in egalitarian
mass democracy is that an inert people will not care about matters of public interest:
I think that the type of oppression by which democratic peoples are threatened will resem-
ble nothing of what preceded it in the world; our contemporaries cannot find the image
of it in their memories . . . I see an innumerable crowd of similar and equal men who spin
around restlessly, in order to gain small and vulgar pleasures with which they fill their
souls . . . Above those men arises an immense and tutelary power that alone takes charge of
assuring their enjoyment and of looking after their fate. It is absolute, detailed, regular, far-
sighted and mild. It would resemble paternal power if, like it, it had as a goal to prepare
men for manhood; but on the contrary it seeks only to fix them irrevocably in childhood;
it likes the citizens to enjoy themselves, provided that they think only about enjoying them-
selves. It works willingly for their happiness; but it wants to be the unique agent for it and
the sole arbiter . . .111
In the conditions of mild despotism democratic peoples will fail to make use of their
constitutionally granted democratic power. In fact, they will confirm a new (if somewhat
despotic) regime as long as it provides security against imaginary enemies. The conditions
of social dependence are stronger than ever. Note that even after the Thatcher decade
about two-thirds of the population of the U.K. received most of their income or welfare
benefits from government.112
Notwithstanding the crucial role entrenched pre-commitment rules play in the design
of constitutionalism the Ulysses paradigm needs revision. Stephen Holmes was right: once
bound, Ulysses may not be lured by the Sirens to wreck his ship and crew on the rocky
coast, but this will not steer the boat home to faraway Ithaca. True, at the moment of the
Sirens’ song the direction was already set and the crew did not have to change course. But
there are other conditions: the crew must also agree to incapacitatie their commander,
and—even more importantly—they have to recognize the critical moment when it is safe
to release Ulysses from his restraints. What is the moment when self-limitation can be
given up without perilous consequences?
There is an alternative myth on handling the spell of the Sirens. In the Argonautica Jason
is advised to hire Orpheus, the master singer. When the Argonauts approached the Sirens
‘they were already about to cast from the ship the hawsers to the shore, had not Thracian
Orpheus . . . stringing in his hands his Bistonian lyre, rung forth the hasty snatch of a rip-
pling melody so that their ears might be filled with the sound of his twanging; and the lyre
111 A. de Tocqueville, Democracy in America [1835–40], vol. 2, H. Reeve, trans., F. Bowen, rev., P. Bradley,
ed. (Vintage, 1990) 318–19.
112 P. E. Gottfried, After Liberalism. Mass Democracy in the Managerial State (Princeton University Press,
1999) 27.
overcame the maidens’ voice.’113 Thus, in addition to incapacitation envisioned by Ulysses,

active resistance is a potential alternative.
Many pre-commitment tools seek to enable co-decision instead of imposing restric-
tions. These include legislative powers subject to super-majority requirements,114 which
in practice require the consent of the political opposition, decisions which require the
approval of a co-equal branch (e.g. to declare emergency), or approval by an external
player (constitutional court, people by referendum, or, sometimes, an international body).
The dangers of democratic tyranny can be countered by more inclusive decision-making
processes which expand political participation beyond majority rule.
Beyond the rules of self-restraint with credible rules on clear roles, effective cooperation
in government has informational advantages. Democratic procedures and participation
provide information on public sentiment, preference, and demands. These will ease the
executive’s natural information-gathering handicap that is inevitable where information is
gathered and processed in an administration with its perspection-distorting interests.
Despite alternatives, constitutional constraints remain central for the design of consti-
tutions infused with constitutionalism. How come that such restrictions are observed?
Do rulers care about the legitimacy of their acts? After all, legality is not the most attractive
source of legitimacy. It is easy (and more appealing) to justify an act by success or e xpediency.
Madison famously feared that constitutional rights and other legalistic limitations on
government would turn into mere ‘parchment barriers’.115 The problem was that ‘[i]n our
Governments the real power lies in the majority of the Community’. In the absence of any
external constitutional enforcer capable of resisting the power of majorities, we should
expect that rights ‘however strongly marked on paper will never be regarded when opposed
to the decided sense of the public . . .’.116
On the other hand, even Machiavelli’s Prince had to be concerned with public reactions
to illegitimate acts: the oppressed, the offended, and the jealous can retaliate. When it comes
to a democracy one should always count on the possibility of losing the next election.
Considerations of retaliation and legitimacy, and popular expectations of consequences
explain, at least partly, why powerful actors behave within the frame of the constitution.
Still, respect of the constitution remains to some extent a mystery, the magic of constitu-
tionalism in action.
5 F orma l i z i n g P re - commi t me n t:
E n t re n chme n t a n d A me n dme n t Ru l es
5 . 1 E n t re n chme n t
Self-restriction by constitutional entrenchment safeguards the tempered operation of the
political system and thereby provides credibility to it. The foundation stones (freedom of
113 A. Rhodius, The Argonautica, R. C. Seaton, trans. (Harvard University Press, 1912) 357.
114 See for example Italy: Article 138 (to be submitted to referendum); Hungary: cardinal law, two-thirds
majority; France: organic law (absolute majority on about thirty subject areas); Georgia: organic law; Russian
Federation: federal constitutional law (majority of not less than three-quarters of the total number of members
of the Council of Federation and not less than two-thirds of the total number of deputies of the State Duma,
Article 108(2)).
115 Federalist no. 48 (Madison), 308, in A. Hamilton, J. Madison and J. Jay, The Federalist Papers [1787–8]
(Mentor, 1961) 308.
116 From James Madison to Thomas Jefferson, 17 October 1788, http://founders.archives.gov/documents/
Madison/01-11-02-0218.
5 Formalizing Pre-commitment 45
expression, equal voting rights, periodical votes etc.) of government are placed beyond the
reach of democratic politics. Consider, for instance, succession in the presidency: if the
selection of a president would be left to those interested in taking up the office without
pre-commitment set forth in rules, a selection process would likely be not only time-
consuming but also conflict-ridden, generating anguish and resistance. A constitutional
rule on the succession to the presidency does not only limit options (and ambitions and
powers), it also enables the prevention or swift solution of an impending crisis. By replacing
a haphazard resolution with adherence to burdensome rules, the constitution offers
solutions to coordination problems and, thus, serves effective government. As a side effect,
it reinforces the position (credibility) and power (!) of constitutional actors.
The constitutional entrenchments of the interests of the previous ruling elite (such
as constraints on constitutional amendment and self-constraint by checks and balances)
provide credibility to the future government. The limitations serving the past power hold-
ers become actual limits on the power holders of the future. The new office holders step
into a system where they have to accept the rules of the game of government precisely
because their predecessors had accepted them before. Observing the rules that were accepted
by the outgoing elite is the fundamental rule of democracy: power holders have to leave if
they lose the elections. The constituent elites who make such concessions in the form of
pre-commitments do so rationally: if they were to lose politically or socially, they would
not be left at the mercy of the victors. It is assumed that future winners will adhere to this
rule. And they do so in a democracy, knowing that one day they will be the ones to lose.
Entrenchment is a powerful constitutional tool. Entrenchment techniques (including
the institutionalization of independent conflict resolution and evaluation bodies, such as
a constitutional court or an ombudsman with pre-set terms of office and protection against
easy removal) are particularly important where the constitution serves conflict resolution.
Entrenchment is a form of political insurance, and as such, it helps trust-building. Even
some dictators prefer the advantage of legitimacy and ensure that the black letters of legal
rules are followed (even if this is achieved by intimidating or blackmailing enough
opposition members to have the required super-majority, or simply creating a crisis, where
a ‘no’ vote can be seen as unpatriotic).
5 . 2 A me n di n g t he con s t i t u t ion
Self-protection is an essential concern for the constitution hence constitutionalism’s con-
cern about rules of constitutional amendment. Constitutions are intended to last for a long
time, and the extreme difficulty of amendment in the case of the U.S. resulted in the longest
constitutional lifespan. To maintain the edifice, the constitution itself requires protection
by entrenchment (for a cautionary tale see Box 1.10). Nonetheless, the constitution is not
meant to be like Baudelaire’s albatross, ‘stranded on the earth to jeering crowds, /The great
wings of the giant baulk his gait’. Empirical evidence suggests that constitutions which are
easier to adjust or amend (flexible) endure longer.117 Where constitutions are too difficult
to amend they are likely to be thrown away if and when they become inconvenient. Some
countries (e.g. France and Bolivia) have had more than a dozen constitutions since they
adopted the first one, although not necessarily because it was so difficult to amend the
previous one, but rather because revolutions prefer to mark a break with the past loud
and clear.
117 See Z. Elkins, T. Ginsburg and J. Melton, The Endurance of National Constitutions (Cambridge University
Press, 2009) chapter 5.
Box 1.10
Mexico’s 1836 centralizing constitution intended to protect itself from amendments before
1842 and also installed a special body to ensure the supremacy of the Constitution by a
constitutional jury (adopting Sieyès’s idea). The Supreme Conserving Power (Supremo Poder
Conservador), a five-member panel, was authorized to invalidate unconstitutional legal rules,
suspend the operation of the High Court of Justice and also of Congress, and reset their
operation, if disrupted by a revolution. It also had power to ascertain the validity of constitu-
tional amendments. The independent, fourth power of government was responsible solely to
God and public opinion (Article 17, Second of the Siete Leyes).
When requested in 1839, the Supreme Power agreed to lift the temporary ban on amending
the Constitution. In return the amendments removed the Supreme Conserving Power from
the Constitution altogether.118
Box 1.11
As a provisional measure, during its first eight years, the 1922 Constitution of the Irish Free
State was subject to amendment by ordinary law. After that constitutional amendment was
supposed to be a subject of referendum. (This same provision was amended by ordinary law.)
As a result, the difference between ordinary laws and the supreme constitution disappeared:
any constitutionally dubious idea could be simply included directly into the Constitution.
As a convenient side-effect, the judicial review of laws lost its significance. Between 1925
and 1936 there were twenty-seven constitutional amendments, including the extension of the
term of a sitting Parliament. Since the referendum became the standard mode of amendment
in 1937, the number of constitutional amendments has declined: thirty-three referenda
between 1937 and 2013 (with at least four proposals being rejected).
Rules of constitutional amendment have numerous functions. As a practical matter,

amendment rules guarantee the constitution’s supremacy in the legal system: they ensure
that the constitution is distinct from ordinary laws which the political majority may shape
to its own liking. In the absence of rigorous and demanding amendment requirements,
constitutional pre-commitment becomes meaningless (see the example of the Irish Free
State, Box 1.11). Amendment rules also protect the legitimacy of the entire political system;
they preserve the constitution’s initial intimate relationship with people’s sovereignty.
As the constitutional amendment process is bound by the very constitution, the constituent
power of revision (as the French doctrine calls it) is only a ‘derived’ one.119
Constitutions are not immutable, but there are techniques of entrenchment which make
change technically demanding and politically very costly. The process of amending the
U.S. Constitution (Article V) is considered among the most burdensome: Congress can
initiate amendments (in the unlikely case that there is a two-thirds majority in both houses
for it) or upon the request of two-thirds of the several states. In this latter scenario a
Convention shall be called to make an amendment proposal. In both instances the
proposal has to be ratified by three-fourths of the several states’ legislatures or at state
118 R. D. Baker, Judicial Review in Mexico. A Study of the Amparo Suit (University of Texas Press, 2015) 8–9.
On Sieyès’ constitutional jury see Chapter 9, 2.2.
119 C. Klein, Le pouvoir constituent, 5, in M. Troper and D. Chagnollaud, eds. Traité international de droit
constitutionnel, vol. 3 (Dalloz, 2012) 6.
Conventions held specifically for this purpose. Since 1787, the U.S. Constitution has been
amended only seventeen times (the first of which comprised ten amendments passed in
one batch). It has proved one of the most stable texts in legal history: new generations
simply grow into its order. However, textual changes or lack of such change may not fully
reflect the breadth of constitutional change, or even revolution hidden behind a few words
(added or deleted) (see Box 1.12).
Amendments can be made difficult even where the amendment power is reserved solely
to the legislature. In the Belgian, Dutch, and Norwegian systems a bill to amend the con-
stitution triggers the dissolution of the legislature. The new legislature will have the power
to adopt the proposed amendment, or reject it, turning the elections into something like a
quasi-referendum. Politicians and deputies are not likely to risk their mandates early for
the sake of an ad hoc constitutional amendment, however dear it is to them. The Danish
Constitution adds another layer: it requires a referendum with a high threshold of approval
(50 per cent of eligible voters must participate and 40 per cent of eligible voters have to
vote in favour of the proposal).
The ease of constitutional amendment varies, partly due to original intent, the founders’
reputation, and instrumentalism in constitutional thought. Most modern constitutions
leave constitutional amendment in the hands of a super-majority in the legislature or for a
referendum, or a combination of these two forces.120 Parliamentary regimes are not too
concerned about leaving constitution-making powers in the hands of legislature itself.
The U.K. is famous for the absence of superior constitutional laws. Israel does not have a
Box 1.12
According to Professor Bruce Ackerman there were two decade-long transformative periods
in U.S. constitutional history: the agonies of the Civil War resulting in the Reconstruction
and of the Great Depression that ended with the New Deal. These transformations were
revolutionary within the existing constitutional order, even though the second one occurred
without textual change in the Constitution itself. However, in order to do so, a number of key
constitutional actors (states, the Supreme Court, and in the case of Reconstruction Era, even
President Andrew Johnson who was impeached in 1868) were to be side-lined.
Only after the reformers carry their initiative repeatedly in deliberative assemblies and
popular elections has our Constitution finally awarded them the solemn authority to
revise the foundations of our polity in the name of We the People. . . . During periods of
constitutional politics, the higher law-making system encourages an engaged citizenry
to focus on fundamental issues . . . During periods of normal politics, the system prevents
the political elite from undermining the hard-won achievements of the People . . .
According to Ackerman the reformers of the Reconstruction Era and New Deal refused
‘to follow the path for constitutional amendment set out by their predecessors. Like the
Federalists before them, these reformers self-consciously validated their initiatives thorough
a series of unconventional institutional appeals to the People.’121
120 In many federal states, due to the double-decker nature of the constitutional architecture a double
validity requirement applies: beyond some kind of national (majoritarian) approval, a given majority of the
member states forming the union must consent to the amendment (see e.g. Australia, Canada, and the U.S.).
In contrast, in Germany the consent of the federal units is secured through the vote of their representatives on
the constitutional amendment in the federal house of Parliament, and not in a self-standing procedure.
121 B. Ackerman, We the People. Volume 2: Transformations (Harvard University Press, 1998) 4–6, 10–11.
special constitutional amendment process either (the provisions of the Basic Laws are
matters for the majority of the legislature to set) and the Slovak Constitution requires only
three-fifths of the vote in a unicameral Parliament. On the whole, the German Basic Law
also appears easy to amend: with the exception of a few unamendable aspects marked in
the ‘eternity clause’122 all it takes is a two-thirds majority in both houses of the legislature.
However, because of the political realities of the allocation of seats in the upper house
there is a need for broad political consensus.
The adoption of amendments by referendum seems to be more ‘democratic’ than a pure
legislative process, and it is increasingly popular.123 However, in reality, in most cases a
referendum makes the amendment of the constitution easier without securing strong
popular support: the Irish Constitution of 1937, after its adoption in Parliament, was
submitted to a plebiscite which approved it, but only with about 40 per cent of the total
electorate participating; the 1958 French Constitution was endorsed only by a plurality of
one third of the total electorate.
On the whole, constitutional amendment, like the approval of a new constitution via
referendum, remains a matter of caution. The initiative in most systems is reserved to the
established branches of government.124 In some instances the political ‘elite’, if it agrees,
can bypass the electorate. According to French and Irish law, the approval of both houses
is necessary to initiate an amendment to the Constitution. In France, a referendum can be
avoided, if the two houses of the Parliament in a joint session act as a ‘Congress’ on the
recommendation of the president. In such instances, three-fifths of the votes of a ‘Congress’
are enough to adopt an amendment. In fact, this has become the normal mode of consti-
tutional amendment: since 1958 out of twenty-four revisions (amendments) twenty-one
were approved in Congress. This makes the French Constitution, a document so conscious
of the people’s sovereignty (Article 3(1)), easy to amend, through bypassing the people.
In addition to procedural hurdles of initiative and approval, setting certain provisions in
stone, and making them unamendable is another way to reinforce pre-existing constitu-
tional convictions. The French Constitution declares the ‘republican form of government’
to be unalterable, while the German Basic Law’s Eternity Clause (Article 79(3)) proscribes
the alteration of the federal nature of the government and of the principles underscoring
its articles on basic rights. The Portuguese Constitution has fourteen unamendable fea-
tures.125 In a similar spirit, several Brazilian constitutions declared federalism and the
republican form of government to be unalterable (cláusulas pétreas).126 These clauses often
do more than constrain constitutional adjustment: they may turn into an invitation for the
judicial review of constitutional amendments.127
The review of constitutional amendments permits courts to redefine the constitution,
explore its founding values, and reflect on the forces which make the constitution relevant
as a framework constraining the exercise of raw political powers as well as the assertion of
the will of the people (see Box 1.13 on India and Box 1.14 on Latin American developments).
122 This clause was a direct reaction to Hitler’s Authorization Law which set aside the Weimar Constitution
(See Box 11.2 in Chapter 11). See Basic Law, Article 79(3), which enshrines respect of human dignity and
human rights, federalism, democracy, sovereignty of the people, and right to resistance. Amendments are
subject to constitutional review. Southwest State case, BVerfGE 1, 14 (1951).
123 Amendment by referendum is known in a number of the American states, Ireland (in theory since
1922), Switzerland, Australia, France, and wherever the French Fifth Republic is a model.
124 For the exception see Switzerland in Chapter 3, 7.3, Box 3.1.
125 See Article 288 of the Portuguese Constitution.
126 C. H. Mendes, Constitutions and Institutions. Justice, Identity and Reform. Judicial Review of Constitutional
Amendments in the Brazilian Supreme Court, 17 Florida Journal of International Law (2005) 449.
127 See further in Chapter 9, 6.1 on the basic structure doctrine in India.
Box 1.13
The court which most spectacularly seized the power to review amendments without an
eternity clause was the Supreme Court of India, and it did so in a highly charged political
conflict which perfectly elucidates the stakes involved in the review of constitutional amend-
ments. The Indian Constitution can be amended by a two-thirds majority in both houses of
parliament (Article 368). In 1968, the Supreme Court held that the Constitution’s fundamen-
tal rights provisions cannot be amended.128 The government of Prime Minister Indira
Gandhi decided to overrule the Court on this point and also to constitutionalize its land
reform measures in a series of constitutional amendments. In 1973, in Kesevananda Bharati
v. Kerala the Supreme Court129 invalidated the Gandhi government’s constitutional amend-
ments (which expressly shielded themselves from judicial review), holding that the amend-
ments violated the basic structure of the constitution. The Supreme Court sat in the largest
panel to date, and came to a 7 to 6 split, with no agreement on what the basic structure of the
Constitution comprises exactly.
Box 1.14
Dante. Figueroa, Current Constitutional Developments in Latin America (2011):

[In] Nicaragua . . . in 2009 the Constitutional Chamber of the Supreme Court issued a
decision allowing the incumbent President to run for reelection.130 . . . The Court found
that the prohibition of reelection contradicted, among other constitutional guarantees,
the principles of unconditional equality in the exercise of the political rights of the office
holders to participate in the political affairs of the country, the principle of proportion-
ality, and the principles of sovereignty and national self-determination. All these prin-
ciples, the Court held, are in accordance with international human rights conventions
by which Nicaragua is bound. . . . The restriction on reelection was established, the Court
also stated, by the ‘derivative constitutional power’ reflected in a 1995 constitutional
amendment, and not by the original constitutional framers. By extending its powers
beyond those expressly granted by the original framers—that is, by restricting the ‘right’
of only certain government officials to run for reelection based on the aforementioned
grounds—the derivative constitutional power violated the principle of sovereignty
protected by the same Constitution, the Court said.
The second case involves Colombia, whose Constitutional Court invalidated a law
calling for a constitutional referendum on the question of whether incumbent Presidents
were allowed to run for a third term.131 The Court, following the same line of reasoning
as the Nicaraguan court, reiterated its precedents holding that the derivative constitu-
tional power may amend the Constitution but not substitute it with a new document. . . .
In sum, the sitting president was not allowed to run for a third term.132
128 Golaknath v. State of Punjab, A.I.R. 1967 S.C. 1643.

129 Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461.
130 Sentencia No. 504, 18 January 2011.
131 Decision of 26 February 2010 invalidating Law no. 1354 of 2009.
132 D. Figueroa, Current Constitutional Developments in Latin America, American Society of International
Law’s International Legal Research Informer (Summer 2011), http://www.nyulawglobal.org/globalex/
Constitutional_Developments_Latin_America.html.
Of course, the entrenchment of certain constitutional features may be protected further by

shielding the eternity clause itself from amendment.133 Without entrenching the entrench-
ment rule the constitution’s Achilles heel remains vulnerable. The New Zealand Constitution
Act 1986 contains only one provision which is more difficult to amend than the rest of the
text: to change the three-year parliamentary term requires a three-quarters majority in
Parliament or a referendum, but this entrenching section can be repealed by simple majority.134
While restrictions on the powers to amend the constitution concern the procedures of
initiative and approval, as well as the contents of amendments, what makes an amend-
ment process burdensome in practice is more a matter of political context and culture
than constitutional design.135 Between 1949 and 2013, the German Basic Law has been
Box 1.15
The Honduran Constitution contains a smaller arsenal of provisions protecting the one time
four-year presidential term (Article 239(1)): the clause itself is not amendable (Article 374)
and anyone attempting or proposing to change this limitation is ineligible for elected office
for ten years (Article 239(2)) and is subject to losing citizenship (Article 42(5)). The presiden-
tial term limit predates the 1982 Constitution, as it originates in 1965. In April 2015, the
Constitutional Chamber of the Supreme Court made the unamendable constitutional clauses
limiting presidential term limits inapplicable.136 The Court found that the term limit violated
freedom of expression and unduly limited political participation. According to the Court the
term limit was not necessary any more as Honduras had become a stabilized constitutional
democracy. The inapplicability of the term limit was also supported by the findings of the
Truth and Reconciliation Committee of 2011, which advocated for the removal of the term
limit as an instrument of national healing after the 2009 coup.
The background to this unusual judicial move is rather eventful. In June 2009, a coup
removed President Manuel Zelaya (2005–2009) from office after he attempted to get re-elected
despite the constitutional term limit via cavalier moves which included an attempt to call a ref-
erendum on the issue. The Supreme Court (alongside the military and Congress) was an active
participant in the removal of Zelaya.137 These events, which the Truth Committee later certified
as a coup, led the Organization of American States in July 2009 to suspend Honduras’ member-
ship for two years. These events did not, however, trigger constitutional reform: politics went
back to normal. In 2012, the Supreme Court invalidated a police law adopted by the newly
elected Congress. In response, Congress replaced four of the five justices of the Constitutional
Chamber of the Supreme Court.138 It was this reconstituted Supreme Court that suspended the
application of the presidential term limit when it became inconvenient for the ruling party.
133 R. Albert, Amending Constitutional Amendment Rules, 13 International Journal of Constitutional Law
(2015) 655.
134 See Article 17 of the New Zealand Constitution Act 1986, as entrenched by the Electoral Act 1993.
135 T. Ginsburg and J. Melton, Does the Constitutional Amendment Rule Matter at All? Amendment
Cultures and the Challenges of Measuring Amendment Difficulty, 13 International Journal of Constitutional
Law (2015) 686.
136 D. Landau, Honduras. Term Limits Drama 2.0. How the Supreme Court Declared the Constitution
Unconstitutional (2015), at http://www.constitutionnet.org/news/honduras-term-limits-drama-20-how-supreme-
court-declared-constitution-unconstitutional.
137 R. J. Krotoszynski, Jr., The Separation of Legislative and Executive Powers, 234, in T. Ginsburg and
R. Dixon, eds. Comparative Constitutional Law (Edward Elgar, 2012) 235–6.
138 For a discussion of court packing see Chapter 4, 3, Chapter 8, 4.4 and Chapter 9, 6.2.
amended about fifty times, changing on at least 120 points. In contrast, the constitution of
Japan has only been amended once since 1946, although all it takes is two-thirds majority
in both houses of parliament. It is more a political than a constitutional impossibility to
change the text. The constitutions of Brazil, India, and Mexico are amended almost every
year.139 The Austrian Constitution, which entails a number of additional constitutional
acts, has been amended or supplemented with a stunning six hundred constitutional laws
since 1920.
If there is genuine social and political consensus, the technical difficulty of constitu-
tional amendment cannot be a real obstacle. The problem of lax amendment procedures
is that they enable partisan politics in the absence of the need to compromise with the
opposition. Once such amendments have been carried out without much difficulty and
resistance, constitutional amendment may become normalized to the detriment of respect
for the constitution as a special element of the legal system. While practicalities (time pres-
sures, costs etc.) may militate for easy amendment, this attitude invariably results in loss of
constitutional prestige: the founding charter of the nation will become a decorative paper
tiger (for an example see Box 1.15).
6 I mperfec t C on s t i t u t ion s a n d Threat s

to C on s t i t u t iona l ism
6 . 1 M is ta k es
All constitutions are imperfect: the question is to what extent they can correct their own
shortcomings. Some of them have fatal errors: sham constitutions are natural-born consti-
tutional zombies. Sham constitutions which exist only on paper are written in order to
delude the public: the ‘great’ Stalinist Constitution of 1936 was created to beguile the world.
The world, or parts of it, wanted to be deceived, and so it worked, at least for a while. In the
best Stalinist tradition, constitutions referring to all sorts of rights have been proclaimed
in many countries. In some instances, perhaps the intentions were good, but what was
promised was unfeasible from the very outset.
The majority of sham constitutions were created as a smoke-screen. After all, it is diffi-
cult to be a country in the contemporary world without a constitution. To be sure, there is
no shortage of promises, especially if they are made to gain international acceptance. It has
to be admitted that the structures described in these constitutions may have correspond-
ing organizations, but the process of actual decision-making does not follow the one pre-
scribed in the constitution. (Or it may, as long as the decision-making bodies are filled
with people loyal to party and leader.) Disregard of constitutional provisions is not
unknown in constitutional democracies. Sham constitutions are different because their
constitutional bodies are simply irrelevant to the exercise of powers, as the power and
authority of the leader (who may have considerable or non-specific powers under the con-
stitution as president, or president for life) do not derive from the constitution. Telling
sham constitutions apart from decent ones is a growing challenge for contemporary con-
stitutionalism as the words of constitutions look far too much alike and they give away
very little about the manner in which the governments work.140
139 For examples of controversial amendments in the presidential term limit context see Chapter 7, 4.2.
140 Z. Elkins, T. Ginsburg and J. Melton, The Content of Authoritarian Constitutions, 141 in T. Ginsburg
and A. Simpser, eds. Constitutions in Authoritarian Regimes (Cambridge University Press, 2014).
It is argued that constitutionalism did not yield what it promised. Realists (see also
theorists of political republicanism and communitarians of sorts) are keen to point out
that constitutions which follow the structures advocated by constitutionalism did not
generate constitutional democracies, or stable governments. They could not prevent civil
strife and authoritarian oppression, and even the best-case scenario served only special
elite interests. But this is not a convincing argument against the appropriateness of consti-
tutionalism through the legal constitution: it remains the best hope for limited government,
because it is the best toolkit to date.
Mistakes in constitutional design are part of the picture. They may originate from the
ideological bias (dogmatism) of the draftsmen. The founding fathers are the children of
their age and share at least some of the prejudice prevalent in their societies. The constitution-
makers’ concession to nationalism or nationalist fanaticism, their fears that a minority
will betray the country, will result in rigid, even paranoid emphasis on the unitary nature
of the state (see the difficulties with Corsica in France).141 Experiences with abusive power
monopolies may result in excessive separation of powers to the point of impeding coord
ination, or too much (or too little) reliance on democratic elements in the formation of
decisions and decision-making bodies. Furthermore, although fear is a reliable advisor
when writing a constitution, fear and dislike of the past alone cannot rid themselves of the
cocksure models prevailing under the previous regime. Even revolutionary constitution-
makers are prisoners of past institutions and mentalities. Where constitutions are written
by the establishment, the participating institutions will have plenty of opportunity (and
power) to reincarnate themselves in the new system.
Napoleon is credited with saying that ‘[a] Constitution should be short and obscure’.142
Constitutions often create the impression of unfinished business. Provisions are often
vague, resulting in continued opportunity for strife when issues are left for future legisla-
tion. This is not necessarily a mistake. It can be the best solution that can be reached at the
moment, given otherwise irreconcilable differences among parties. The price of the agree-
ment is to leave matters undecided. This was the case of slavery (‘importation of persons’)
in the U.S. Constitution where a temporary gag rule was inserted (Article I, Section 9(1))
and even protected from being amended away (Article V). ‘Constitutional deferral’,143 i.e.
a conscious decision of constitution-makers to leave controversial matters undecided or
apply a vague language, appears inevitable.
Obstinate adherence to the constitution is another source of constitutional mistake.
Constitutions are imperfect human instruments. Constitutional foresight has its limits,
given the unexpected changes in society and the resulting new challenges to constitution-
alism. A blatant disregard of social change is contrary to the constitution, at least if the
constitution was intended to promote an efficient government for the Nation.
6 . 2 Threat s to con s t i t u t iona l ism

Contemporary constitutionalism is confronted by a good number of threats. There is an
arrogant intellectual-political dislike of constitutionalism, among other things because of
its intimate historical association with classic (nineteenth-century) liberalism, as liberalism
141 See Chapter 3, 8.5 (Corsica cases).

142 Benjamin Constant, Napoleon’s advisor in 1815, partly shared this view. He stood for a short constitution
that enabled interpretation and change. B. Constant, Cours de politique constitutionnelle, 3rd ed. (Hauman,
Cattoir et comp., 1837) IX, 56.
143 R. Dixon and T. Ginsburg, Deciding Not to Decide. Deferral in Constitutional Design, 9 International
Journal of Constitutional Law (2011) 636. On gag rules and pre-commitment see also Chapter 3, 8.3, especially
box 3.18.
became a major target of conservative, leftist, and various radical (communist, fascist)
political movements. These movements stand for a pre-ordained (past or utopian) social
order. Whenever they were able to shape constitutions, constitutional practices, and con-
stitutional law, this was detrimental to fundamental principles of constitutionalism. In
these ideologies limiting power in the name of the rule of law is unsustainable, costly, and
inefficient, as it deprives us of security. The Nation needs unity: all these forces plan to
realize their vision by a unilateral control over government.
Beyond politics, there are a number of developments in government that are hardly com-
patible with constitutionalism. The first is that the welfare state is constantly challenging the
traditional institutional safeguards of constitutionalism. The resulting performance deficit
is blamed on the intricacies of the constitutional structure. Under the pressure of demo-
cratic politics which caters to the increasing appetite of the electorate, state resources are
over-stretched and the government is accused of delivering too little too late. It is claimed,
however, that these shortcomings result from the rule of law and rights fetishism. The typ-
ical slogan is that the government (and thus the voters) shall not spend to provide minim-
ally decent conditions for prisoners (or asylum seekers) when the level of welfare provisions
to honest citizens cannot be sustained. Frustrated welfare expectations will produce an
increasingly overextended, hence increasingly frustrated, non-accountable executive
branch which is becoming all-powerful because of the public demand for further services.
People, as already envisioned by Tocqueville, will accept and even demand the new, mild
despotism144 of the welfare state. The dinosaur state may collapse;145 it will die in the midst
of anarchic convulsions, crushing the unfathomable side of society. It will pass away, not
only because of its burdens, but because its honest, sclerotic spine, once created for a nimble
lizard, could not endure the weight accumulated with the passage of time.
The second threat, intimately related to the performance deficit of the welfare state,
comes from populist anti-parliamentarism and an exaltation of direct democracy. The
challenge is that representative government, undeniably, is not responsive to public
demands. The intellectual origins of this attitude are to be found in the anti-parliamentarism
of German law professor Carl Schmitt (1888–1985), though his criticism was converted
into populist small change along the way. Hail the democratically produced dictator
representing national unity based on obscure national identity! Hail simple solutions!
Radical and simplified democracy denies the legitimacy (or utility) of disagreement and
mediation.
The idea of the plebiscitary dictator is a radical challenge to the legitimacy of constitu-
tionalism which assumes that all power, including that of the people, shall be subject to
limitations. Constitutionalism stands for minorities (at least in the minimum sense that
they have the right or legal possibility to be part of the majority, or become the majority).
The populist stands for the unity of the people and those who are ‘outside’ (the others
or ‘them’) do not count. This helpful division is often made on xenophobic grounds: the
others are those who do not share the (imaginary) national identity based on immutable
characteristics. Such constitutional populism relies on identity politics.
Populist and neo-corporative perceptions of the constitutional order challenge the
assumptions of constitutionalism, even when they do not advocate authoritarian alterna-
tives openly. The return to naked concentrated authority is a recurrent theme in constitu-
tional history. Carl Schmitt’s antagonist, the German social democrat, Hermann Heller
(1891–1933) argued even in 1931 that ‘“authoritarian primacy of the state over society” [is]
144 A. de Tocqueville, Democracy in America [1835–40] vol. 2, H. Reeve, trans., F. Bowen, rev., P. Bradley, ed.
(Vintage, 1990) 318–19. 145 See Chapter 7, 1.1.
necessary to ensure the primacy of political authority over private economic power . . .’146
In Heller’s own words: ‘“Authority not majority,” so runs the antithesis formulated a
hundred years ago by Friedrich Julius Stahl.’147
The third threat to constitutionalism is the neo-corporatist order of expert shoemakers.
In this vision, government officials conceal their own interests in the new constitution
with the help of a ploy: experts know best how to manage public affairs. The central
premise of this rather obvious misrepresentation is exactly that experts know best. As John
Dewey observed:
[t]he man who wears the shoe knows best that it pinches and where it pinches, even if the
expert shoemaker is the best judge of how the trouble is to be remedied. . . .
A class of experts is inevitably so removed from common interests as to become a class
with private interests and private knowledge, which in social matters is not knowledge
at all.148
Corporatism is the dictatorship of shoemakers. It does not matter that only the individual
knows what her preferences are, and that these preferences are meant to be expressed
through the representative processes of democratic government. Unfortunately, this kind
of self-interested corporatism is ever more present in legislation.
For the fourth threat, identity politics, see the discussion on homogeneity in Chapter 2,
and for the fifth and sixth, security mania and unfinished multi-layered constitutionalism,
see Chapters 11 and 12 respectively.
Under the pressure of the above trends, quite often, ‘core democratic institutions, such
as parliaments or recurring elections, stay formally in place while the substance of political
decision making is no longer determined by active citizens and their representatives’.149
146 A. J. Menéndez, Herman Heller NOW, 21 European Law Journal (2015) 285, 287. Only in the fateful year
of 1933 did Heller regret his authoritarian liberalism.
147 H. Heller, Authoritarian Liberalism? [1933], 21 European Law Journal (2015) 295, 295.
148 J. Dewey, The Public and Its Problems, 235, J. Dewey, The Later Works of John Dewey. 1925–1953, Volume 2:
1925–27, J. A. Boydston, ed. (Southern Illinois University Press, 2008) 364.
149 A. Somek, Delegation and Authority. Authoritarian Liberalism Today, 21 European Law Journal (2015)
340, 347.

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OUP CORRECTED PROOF – FINAL, 01/10/17, SPi

‘When the fundamental principles of government, through fatal perversion, or

6 Thomas Jefferson, Notes on the State of Virginia (1781), http://avalon.law.yale.edu/18th_century/jeffvir.asp.

Sparta remains a matter of the imaginary reality of sameness, subject to manipulated

1 Warning, Danger! Definitions 13

1 Warning, Danger! Definitions 13

1 War n i n g , Da n g er ! Defi n i t ion s

1 . 1 The con cep t of con s t i t u t iona l ism

14 Constitutions and Constitutionalism

1 Warning, Danger! Definitions 15

16 Constitutions and Constitutionalism

1 Warning, Danger! Definitions 17

18 Constitutions and Constitutionalism

1 Warning, Danger! Definitions 19

1 . 2 The idea of a con st i t u t ion

25 L. Siedentop, Democracy in Europe (Columbia University Press, 2001) 66.

20 Constitutions and Constitutionalism

1 Warning, Danger! Definitions 21

this is the meaning of ‘constitution’ today. In the circumstances of republican Rome, the

22 Constitutions and Constitutionalism

39 See e.g. C. Möllers, Pouvoir Constituant—Constitution—Constitutionalisation, 183, in A. von Bogdandy

1 Warning, Danger! Definitions 23

1 . 3 The l e g a l con s t i t u t ion

42 Thomas Jefferson to James Madison, 6 September 1789, http://press-pubs.uchicago.edu/founders/

24 Constitutions and Constitutionalism

1 Warning, Danger! Definitions 25

26 Constitutions and Constitutionalism

58 See Chapter 10, 3.2.

1 Warning, Danger! Definitions 27

1 . 4 C on s t i t u t ion s as a g e n re of pol i t ica l

28 Constitutions and Constitutionalism

2 . 1 The con s t i t u t ion of dea l s

30 Constitutions and Constitutionalism

73 On the constitutional dealings in Philadelphia see Chapter 5, 2.

2 . 2 The con s t i t u t ion of fears

32 Constitutions and Constitutionalism

34 Constitutions and Constitutionalism

2 . 3 The con s t i t u t ion of ( dis ) t rus t

36 Constitutions and Constitutionalism

3 S ocia l Org a n i z at ion a n d

92 See further Chapter 3. 93 See further Chapter 2.

3 Social Organization and Constitutional Order 37

38 Constitutions and Constitutionalism

­ emocratic aspirations and established democratic systems.98 It is not economic develop-

3 Social Organization and Constitutional Order 39

3 . 2 The con s t i t u t ion of we l fare

40 Constitutions and Constitutionalism

4 Pre-commitment: Ulysses Binds Himself to the Mast 41

4 P re - commi t me n t: U lysses B i n ds H imse l f

42 Constitutions and Constitutionalism

4 Pre-commitment: Ulysses Binds Himself to the Mast 43

44 Constitutions and Constitutionalism

overcame the maidens’ voice.’113 Thus, in addition to incapacitation envisioned by Ulysses,

46 Constitutions and Constitutionalism

Rules of constitutional amendment have numerous functions. As a practical matter,

48 Constitutions and Constitutionalism

Dante. Figueroa, Current Constitutional Developments in Latin America (2011):

128 Golaknath v. State of Punjab, A.I.R. 1967 S.C. 1643.

50 Constitutions and Constitutionalism

Of course, the entrenchment of certain constitutional features may be protected further by

6 Imperfect Constitutions and Threats to Constitutionalism 51

6 I mperfec t C on s t i t u t ion s a n d Threat s

52 Constitutions and Constitutionalism

6 . 2 Threat s to con s t i t u t iona l ism

1 . 4 C on s t i t u t ion s as a g e n re of pol i t ica l

emocratic aspirations and established democratic systems.98 It is not economic develop-