THE POLITICS OF DEFINITION OF CONSTITUTIONAL LAW
The politics of definition are crucial to understanding the relation between rights constitutionalism and private power. To illustrate this, I develop here the insights of the emerging critical school of legal pluralism discussed in chapter three.
Critical legal pluralism takes as its premise that all legal settings are ‘shaped by power relations, however overtly or subtly exercised.’[588] On this view, the key question is how legal knowledge, given its role in ‘maintaining] and creat[ing] realities,’[589] contributes to the legitimation of power.[590] This will partly be a narrative of domination,[591] focusing on how legal subjects are constrained by hegemonic accounts of law, but also partly one of transformation,[592] identifying ways of imagining law which open up the scope for counter- hegemonic resistance. The extent to which constitutional knowledge unfolds in a hegemonic or counterhegemonic manner requires attention to the symbolic aspect of constitutions.Constitutions are important ‘symbolic artefacts’[593] in disputes over the meaning of ideas such as equality, liberty and democracy. Their symbolic effects are manifested in at least three ways: 1) by putting into concrete terms abstract issues of political theory, and so underlining their importance—for example, the symbolic linking of marking a ballot paper to the wellbeing of democracy;[594] 2) in ‘affirm[ing] the identity of the political society that is made up of those from whom the constitution demands allegiance;’[595] 3) by attaching the label ‘constitutional’ to the resolution of certain political conflicts to mark them out as ‘worthy of special respect, deference or attention not just in the domain of law but in other contexts as well.’[596] As Ulrich Preuss observes, this label is especially potent as the unique claim of modern constitutionalism is its promise of ‘a lasting possibility for human progress.’[597] The symbolic power of constitutions accordingly lies in shaping and directing the debates through which political communities reinterpret their past, negotiate their present and plan their future.[598]
What we understand to be constitutional is a central factor in setting the terms of these debates.
To demonstrate this, I now contrast two different definitions of constitutionalism: the classical liberal model of the US Constitution, and what has been labelled ‘new constitutionalism’ which views the processes of economic globalization in constitutional terms. Comparing these models brings two points to the fore. It shows how the different forms of constitutional knowledge which they seek to reproduce direct us to different political agendas, with important consequences for the relation between constitutionalism and private power. Secondly, to the extent the former represents explicit, and the latter tacit, understandings of constitutionalism, it further shows that what is not said to be constitutional also has symbolic effects in suggesting what is, and is not, important by way of constitutional inquiry.Classical Liberal Constitutionalism
The US Constitution is a useful starting point for unpacking the significance of the politics of definition for constitutional study, given its historical and contemporary relevance. The post-revolutionary settlement of the 1787 Constitution and 1791 Bill of Rights represents the birth of modern understandings of ‘constitutionalism’,[599] giving the term the more specific meaning accepted today as a codified document protecting individual rights.[600] Moreover, this model of rights constitutionalism has been influential beyond American shores, and has provided the inspiration, in part, for the current round of constitutional globalization.[601] Analysis of the US Constitution from the perspective of the politics of definition brings two important insights. First, it locates the US Constitution in its historical context, and undermines claims that it embodies some ‘essence of constitutionalism’[602] showing that from the start, the meaning of constitutionalism was the focus of intense political struggle. Secondly, it shows how a classical liberal conception of constitutionalism frames constitutional questions in a manner conducive to the interests of private power.
Given the almost metaphysical status which the US Constitution has acquired,[603] it is important to emphasise that the politics of definition were very much present at the Philadelphia Convention. Jefferson, for example, argued that constitutions should be seen as living documents and so not entrenched to bind future generations,[604] whereas Madison saw constitutions as constraints on government by faction,[605] and so should necessarily be difficult to amend.[606] The events at Philadelphia should also be seen in light of the social climate at the time, with the revolutionary war having awakened a political movement for greater material equality, as manifested, for example in the Shays Rebellion of 1786.[607] In this connection, Russell Galloway has argued that ‘the debate over the Constitution... was essentially a debate between the defenders of property and defenders of the propertyless.’[608] Whether viewed in terms of high theory or class conflict, the historical context indicates how constitutions were, from the very beginning, sites of contestation between contending political outlooks.[609]
The new constitutional settlement which emerged from this contest contained several key features, which would influence the development of modern constitutional thought and practice: first, the constitution was embodied in a single text; secondly, formally, this text had the status of higher law, binding ordinary law and requiring special procedures to be amended; and thirdly, substantively, the text should guarantee individual rights (at the time, stated in terms of the right to life, liberty and property). While now seen as key elements of liberal democracy, at the time, they were decidedly antidemocratic in many respects, and designed to protect the propertied class, from what was then seen as the threat of democracy in the form of majority rule.[610] Some of these protections took a specific form, whether in prohibiting states from passing laws ‘impairing the obligation of contracts’[611] or protecting property in slaves.[612] However, it is important to see how, more symbolically, hegemonic interests succeeded in capturing the definition of constitutionalism to their ends: this occurs at two related levels.
First, substantive provisions of the US Constitution represent core elements of classical liberal discourse. It has at its root the idea that constitutions should limit government, reflecting the Lockean idea that the state is a necessary evil to protect the freedoms enjoyed by individuals in the state of nature. Furthermore, these freedoms are to be guaranteed to the fullest extent possible through the entrenchment of individual rights. This equates the guarantee of constitutional freedom with the protection of the individual’s private sphere, thus reinforcing the classical liberal separation of social life between the state and civil society, with the constitution’s role to insulate the latter from interference by the former. Together, these anti-state and individualist elements chimed with the hegemonic interests of the time, and sought to entrench the idea, as Charles Beard put it, ‘that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities.’[613] Secondly, hegemonic interests were not only served by the substantive definition of constitutionalism, but also by its conceptual definition, which emphasises its legal character. This is achieved primarily through the erection of a ‘sharp boundary... between the Constitution and politics’[614] which presented constitutional argument as a technical discourse, to be conducted by learned experts, ie, lawyers and judges, and therefore not a political discourse.[615] Not only does this justify the practice of judicial review,[616] but it gives constitutional arguments advancing rights claims a special status, so that they did not require to be justified de novo in political terms.
Protecting Private Power through the Politics of Definition
A brief excursus into the historical record shows how the hold of classical liberal politics of definition, in three key areas of constitutional adjudication’s interface with private power, shaped the form of constitutional argument to favour hegemonic interests.
First, where corporations claimed constitutional protection, the Supreme Court has asked whether the statutes under review infringed the area of constitutionally protected freedom.[617] As such, it equated corporations with private individuals,[618] locating both in the free realm of civil society, and so both should receive constitutional protection against interference by the state.[619] Secondly, where the constitutional vires of state legislation restricting the free operation of capital was questioned, the Court focused on whether the former offended the natural rights protected by the Constitution rather than its social necessity.[620] Accordingly, it could hold that due process rights must have a substantive dimension protecting privity of contract.[621] Thirdly, where individuals sought to hold non-state bodies such as corporations to the standards of the Constitution, the Court asked whether the actions of these bodies can be regarded as the actions of the state.[622] This reflects the notion that constitutional rights only limit state power, and further reinforces the idea that corporations, for example, are private bodies, part of civil society, and not centres of political power.Approaching constitutional argument from a classical liberal politics of definition has served hegemonic interests well over the years, in at least three ways. First, in terms of the direct outcome of adjudication: corporations have enjoyed rights under the First[623] and Fourteenth[624] Amendments, which they have employed to challenge state interference with their property; legislation protecting employees from hazardous working conditions has been struck down as interfering with freedom of contract;[625] and non-state bodies have been generally immunised from subjection to the Constitution’s requirements of due process and substantive justice.[626] Secondly, in limiting the possible adverse consequences for private power: for example, even where private action is deemed to be state action, this is seen as exceptional, particular to the facts of the case and resting in the private body’s temporary nexus with the state.
It does not amount to the idea that the private body represents any constitutional danger in its own right,[627] thus reducing the potential for constitutional argument to be used as a weapon against private power. Thirdly, this delineation of constitutional arguments is presented as the product of an internally ordered, autonomous discourse, rather than an as a political contingency. The result is that while a large number of controversies can be contemplated within the constitutional framework, the framework itself is assumed to be nonproblematic[628]: constitutional argument is ‘disembodied’ from politics, as all protagonists seek to show how their preferred constitutional outcome ‘is dictated by some neutral and apolitical principle.’[629] Thus, to the extent this framework remains captured by classical liberal values, those values are put further beyond the reach of their opponents.It is important to underscore the limited focus of the above analysis. For the present, I am not making any claim beyond that the classical liberal politics of definition underpinning the US Constitution have served as ‘a powerful symbol of the idea of individual autonomy in the structure of the American polity.’[630] Moreover, these politics of definition have informed and channelled US public discourse, and worked to the benefit of hegemonic, particularly corporate, interests. However, the implications of this analysis go beyond purely local or historical interest: to the extent that the charters of rights being globalized find their precursor in the US Bill of Rights and also emphasise ideas of individual rights and judicial review, this raises the question of whether their politics of definition facilitate or constrain the development of a counterhegemonic constitutionalism. I address this point at length in the next chapter. First, to illustrate further the nature of the politics of definition, I outline an alternative understanding of constitutionalism which directs us to a very different agenda of constitutional inquiry.
‘New Constitutionalism’
The US constitutional model, codifying fundamental rights into a single written document, represents the explicit constitution in its highest form. However, legal pluralism teaches us that explicit texts are not the only sources of constitutional norms, and that the tacit constitution is equally important in that regard.[631] With this in mind, I turn now to some recent scholarship under the heading of the ‘new constitutionalism.’ This speaks to the constitutional character of the Washington consensus and associated neoliberal phenomena, which it is argued has as strong, if not a stronger, bearing on the structuring and regulation of political conduct than texts which self-consciously identify as constitutions. This provides an instructive point of contrast with the classical liberal mode as the politics of definition are to the fore: in this instance, ‘constitutionalism’ is used as ‘a metaphor for the challenges that [global economic governance] presents to the notion of democratic legitimacy.’[632] Moreover, these politics of definition advance a form of constitutional knowledge which prob- lematises, rather than protects, corporate power.
New constitutionalism has been described as ‘the quasi-legal restructuring of the state and internationalization of international political forms’ which confer ‘privileged rights of citizenship and representation on corporate capital.’[633] Stephen Gill, for example, identifies a ‘set of political and constitutional changes’ which are designed to ‘ “lock-in” neoliberal reforms with respect to macroeconomic stability, protection of property rights and capital mobility.’[634] He argues that this involves three sets of processes: ‘measures to reconfigure state apparatuses’ as manifested in treaties such as NAFTA; ‘measures to construct and extend liberal capitalist markets,’ for example incentives to investment; and ‘measures for dealing with the dislocations and contradictions’ of global capitalism, including ‘targeting the very poorest with real material concessions.’[635] For Gill, these measures should be seen in constitutional terms as they seek to attenuate, sometimes by coercion, sometimes by co-option, the potential democratic challenge to economic liberalisation.[636]
David Schneiderman similarly argues that we should conceive of economic globalization in constitutional terms.[637] For him, this arises in two ways: first, in a functional approximation between constitutionalism and the transnational legal rules of the global economy,[638] for example, in precommitting future generations to a neoliberal institutional framework. Secondly, these transnational legal rules can operate as higher law on domestic constitutions, sometimes requiring the latter to amend their internal regime along neoliberal lines.[639] For example, membership of NAFTA has resulted in formal and informal changes in the constitutions of Canada[640] and Mexico,[641] designed to ease restrictions on foreign investment (for example, by neutralising clause 27 of the Mexican Constitution which subjected foreign investment to domestic laws). Underlying both these aspects is ‘the language of limits,’ and Schneiderman here agrees with Gill that the effect of the new constitutionalism is to remove ‘some measure of control over the market’[642] from national politics. Harry Arthurs claims that neoliberal values have now acquired constitutional status in the sense that political positions which accord with the former are deemed legitimate on that count alone, and ‘not on the basis of their superior wisdom, equity or cost-effectiveness.’[643] This is manifested, for example, in the tendency of western governments to identify their interests with the liberalisation of the global economy.
Problematising Private Power through the Politics of Definition
This view of the ‘new constitutionalism’ causes some important shifts of focus from the classical liberal conception,[644] in particular our view of the constitutional significance of private power. For example, corporations, given their role as the prime movers of the global economy, are now regarded not just as sources of law, but as sources of constitutional law. This provokes questions concerning their legitimacy directly, in contrast with the classical liberal account where such questions are only relevant in connection with the state. Thus, for example, under new constitutionalism, it is more difficult for corporations to receive the benefit of constitutional rights, as it is now implausible for them to masquerade as rights-bearing individuals in the free realm of civil society. As Santos has observed, a pluralist concept of law implies an expanded concept of politics, one of the consequences of which is:
to uncover social relations of power beyond the limits drawn by conventional liberal theory and, accordingly, to uncover unsuspected sources of oppression or of emancipation through law, thereby enlarging the field and radicalizing the content of the democratic process.[645]
We can see this at work in our account of new constitutionalism, which, by emphasising the political consequences of neoliberalism seeks to reorient public discourse on corporate power according to the standards of social justice[646] (in contrast with classical liberal constitutionalism which generally seeks to insulate private power from constitutional scrutiny).
These different approaches to private power underline the symbolic power of the explicit constitution. While the tacit constitution may engage central issues of the appropriate bounds of political power, precisely because it is tacit, these issues are regarded as of secondary importance. For example, the non-designation of a corporate charter as constitutional means that questions such as who exercises corporate power, and by what standards we judge it to be legitimate, are not accorded the same priority as questions over how state power is exercised and legitimated. The objective of the new constitutionalism can then be seen as making the constitutional dimension of neoliberal globalization more explicit, with a view to engendering debate over whether it satisfies standards of procedural or substantive constitutional legitimacy. The contrast with classical liberal constitutionalism is instructive: whereas the latter seeks to put the constitutional framework out of the bounds of political debate, with the effect of further insulating its protection of private power, new constitutionalism puts the framework itself in the spotlight with a view to stimulating debate on the legitimacy of private power. In other words, new constitutionalism gives ‘constitution’ the political charge which classical liberal constitutionalism seeks to defuse.