Can Constitutionalism be Leftist?

In this essay, written for a symposium on the work of Mark Tushnet, I examine Tushnet’s effort to defend popular constitutionalism in his powerful and subtle book entitled ATaking the Constitution Away from the Courts,” I ask whether the book succeeds in reconciling constitutionalism with leftism. If there is anyone who could accomplish this task, it is Tushnet. He is without question our most thoughtful constitutional leftist. And yet, the book, at least taken at face value, fails to achieve its goal. To the extent that the book argues for constitutionalism, it abandons leftism, and to the extent it is leftist, it abandons constitutionalism. Tushnet=s proposal can be both leftist and constitutional only by reconceiving what constitutionalism amounts to in ways I suggest at the conclusion of the essay. The failure to reconcile leftism with constitutionalism as it is more commonly understood teaches us something important: If Tushnet cannot produce this synthesis, then no one can

Two internal critiques of political constitutionalism

The antagonism between legal and political constitutionalism has almost monopolized the discussion on constitutional theory during the last years. For this reason, political constitutionalism has been assessed mainly as an alternative to legal constitutionalism. Moving beyond this perspective, this article intends to focus exclusively on political constitutionalism and its internal tensions. After having outlined the main tenets of this theory, two internal critiques are put forward, both concerning the understanding of the political aspect of constitutionalism: first, political constitutionalists propose a reductive account of the principle of political equality; second, their exclusive focus on ordinary politics as the centre of constitutional life is misleading and precludes a correct evaluation of constitutional politics

The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy

This article’s investigation into the “agency for legitimacy” proceeds in five steps: Part I introduces the concept of “administrative constitutionalism,” which encompasses the debate over what should be the role and nature of public administration to ensure its legitimacy. It then lays out the elements of the rational-instrumental and deliberative-constitutive paradigms and explains how they contribute to administrative constitutionalism respectively from the outside-in and inside-out. Part II provides a brief history of administrative constitutionalism, which reveals there have been ongoing tensions between two paradigms—and thus between outside in and inside out accountability—since the 1880s. Part III elaborates on the authors’ argument that the current emphasis on the rational-instrumental model has been administrative constitutionalism unsustainable. Part IV argues that acknowledging and developing the deliberative-constitutive paradigm will strengthen administrative constitutionalism by admitting the existence of agency discretion and by looking for realistic ways to make it accountable. Finally, Part V offers a case study in how the deliberative-constitutive paradigm can contribute to administrative constitutionalism.The Kay Bailey Hutchison Center for Energy, Law, and Busines

Presidential Popular Constitutionalism

This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the U.S. Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document, and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and groundbreaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the nation that interact dynamically with citizens’ constitutional understandings. This Article sets out a “grammar” of presidential popular constitutionalism, lays out the historical development and major transformations in its practice, proposes a set of thematic alternatives for today’s presidential popular constitutionalism, and locates presidential popular constitutionalism within the larger concerns of constitutional theory. In particular, it argues that some of the major political developments of recent decades, such as the “Reagan revolution” and the Clinton-Bush era, can be fully understood only by grasping that they are episodes in presidential popular constitutionalism

International constitutionalism and the state : a rejoinder to Vlad Perju.

The transplantation of a legal governance form from one order to another is always fraught with difficulty. Perju’s Reply asks critical questions regarding the characterization of future global governance and most particularly the use of constitutionalism beyond the state presented in my article. Perju argues that an a priori matter, whether constitutionalism is suitable beyond the state, is of critical import. My original article centered upon a “what if” question, what would the impact of an international constitutionalization process be upon the state and whether this would be an advantageous process, what Perju portrays as “the very option” of constitutionalism. The sense of urgency which Perju finds apparent in my article is also perceptible in other recent attempts to offer options for the future of the global legal order. Alongside constitutionalization, other narratives ranging from global legal pluralism to global administrative law form part of a much broader narrative of “what if” questions within international governance debates seeking to consider what exists beyond the classical state consent tropes discussed in the article. This rejoinder focuses upon several questions raised by Perju: transplantation, multiple constitutional orders, and the link between normative and structural constitutionalism.1 First, transplantation and the applicability of constitutionalism, as part of a process of constitutionalization, beyond the state. Walker considers that the opposition to constitutionalism beyond the state relies upon four interrelated categories: inappropriateness, inconceivability, improbability, and illegitimacy.2 Inappropriateness is linked to what Perju states as taking “for granted the existence of an international legal order.” Indeed, the constitutionalization debate and my article assume that a legal order exists beyond the state. Whilst not embracing Peters’s claim that constitutionalization acts as a bulwark against assertions of international law’s limitations as a legitimate legal order nor wishing to dismiss outright those that do question international law’s legitimacy,

After the crisis and beyond the new constitutionalism? The case of the free movement of capital

This article examines the ‘new constitutionalism’ of the free movement of capital at the International Monetary Fund (IMF) after the global economic crisis. It is argued that the concept of new constitutionalism, as developed by Stephen Gill, is an indispensable concept to understand the still growing institutionalization of neoliberal policies in constitutions, laws, institutions, and regulations. The latest attempt to further extend the constitutionalization of the free movement of capital, one of the pillars of neoliberalism, is the IMF’s newly developed ‘institutional view’ on capital flows. This approach, while more pragmatic than earlier attempts, can be understood as a renewed effort to prevent emerging markets and developing countries from installing capital controls and deviating significantly from neoliberal policies. However, emerging markets and developing countries have opposed this new IMF framework. As such, the ability to further extend the new constitutionalism of the free movement of capital is severely weakened

coordination through judicial dialogue

International courts regularly cite each other, in part as a means of building legitimacy. Such international, cross-court use of precedent (or “judicial dialogue”) among the regional human rights courts and the Human Rights Committee has an additional purpose and effect: the construction of a rights-based global constitutionalism. Judicial dialogue among the human rights courts is purposeful in that the courts see themselves as embedded in, and contributing to, a global human rights legal system. Cross-citation among the human rights courts advances the construction of rights-based global constitutionalism in that it provides a basic degree of coordination among the regional courts. The jurisprudence of the U.N. Human Rights Committee (HRC), as an authoritative interpreter of core international human rights norms, plays the role of a central focal point for the decentralized coordination of jurisprudence. The network of regional courts and the HRC is building an emergent institutional structure for global rights-based constitutionalism

Popular Constitutionalism and the State Attorneys General

In her article Dead or Alive: Originalism as Popular Constitutionalism in Heller, Professor Reva Siegel argued that the Supreme Court’s opinion in District of Columbia v. Heller relied on originalism to enforce understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism. In this Response, Professor Joseph Blocher argues that those understandings reappeared in McDonald v. City of Chicago, in part through the efforts of thirty-eight state attorneys general (SAGs) who filed an amicus brief urging the Court to incorporate the Second Amendment against the states. The SAGs invoked federalism, but their arguments owed more to popular constitutionalism than to the interests of the states qua states. Thus although the SAGs helped solve popular constitutionalism’s problem of institutional design, they raised new questions about their own responsibilities as representatives of the states

A note from the editors: the state of the political constitution

The revival of the political constitution has come about in parallel with two developments, one in constitutional practice and the other in political theory. With regard to the former, the political constitution has been seen as something of a bulwark against the rise of legal (or judicial, or common law) constitutionalism.  The seeming hegemony of this latter model of constitutionalism among contemporary lawyers and political scientists has produced from (so-called) political constitutionalists a reaction against the delegation of important decisions to non-political institutions and an obsessively court-centered scholarship.  Perceiving this shift in focus from political to legal institutions to be the very antithesis of the traditional Commonwealth (more particularly, of the United Kingdom’s parliamentary) model of constitutionalism, and, more broadly, to be an affront to democratic sensibilities, the notion of the political constitution was retrieved and defended in a seminal article in the 1979 edition of the Modern Law Review, written (though first delivered in his Chorley Lecture the previous year) by the late John Griffith.  More recently, in the work of Adam Tomkins, Richard Bellamy, and Grégoire Webber and Graham Gee, a normative interpretation has been lent to Griffith’s thesis so as to provide a full-fledged constitutional theory capable of standing as an alternative to the liberal-legal paradigm—a turn, one might say, from the political constitution to political constitutionalism

Neo-liberalism at a time of crisis: the case of taxation

This essay explores how the global financial crisis of 2008–2009 has affected the stability of what Stephen Gill has termed the ‘new constitutionalism of disciplinary neo-liberalism’, more precisely, in the realm of international tax policy. Rather than providing an in-depth and complete empirical study of the matter, this essay will highlight certain interesting developments and touch upon a series of possibly relevant questions that could form the basis for a future research agenda. In the first section, we will examine the remarkable strength and resilience of the new constitutionalism as the institutional component of neo-liberal hegemony. Then we will proceed to an exploration of the impact of the crisis on this hegemony, also paying attention to deepening geopolitical multipolarity as an additional variable. The final, more empirical section will investigate the case of international taxation in this context, and demonstrate that new constitutionalism remains a crucial supporting pillar of neo-liberal globalisation