Constitutionalism: Appearance, Form, and Content — Rob Hunter

I.

This post focuses on constitutional theory as an appropriate site of concern for Marxist legal inquiry. I sketch some of the contradictions inherent in liberal constitutional theory, and also gesture at the distinctions that can be drawn between Marxist and liberal analysis of constitutionalism.

II.

Constitutionalism is a prominent feature of capitalist polities worldwide. The literatures on normative constitutional theory and the empirics of constitutional practice continue to expand. It is noteworthy that liberal theorists have typically emphasized, rather than downplayed, constitutionalism’s contradictions–something that cannot be said for much of the rest of liberalism’s theoretical armature. Liberal political theory is suffused with an awareness of the contradictions of constitutionalism. Nevertheless, the most frequently revealed preference of liberal constitutional theorists is to find ways to minimize such contradictions–or to swallow them whole.

For present purposes, let the foundational constitutional claim be a normative claim about a regime’s legitimacy. [1] Such legitimacy typically obtains when state activity is constrained by determinate norms of public legality. Such norms are themselves entrenched against easy or rapid revision. The (conceptual rather than historical) origin of the decision to bind governing institutions in this way is sited in the activity of constituent power–usually identified with a popular sovereign or equated with the expressed will of the nation–that is, a particular community administratively defined through territoriality. (Indeed, the historical development of constitutionalism is closely intertwined with the emergence of the state system in international relations.)

The constitutional claim frequently wobbles between the aspirational and the non-ideal. If the liberal state is legitimate only insofar as state actors are constantly and consistently constrained by constitutional norms, then it would seem that any constitutional polity is forever in a state of crisis–a description of the political field at which most liberals would cavil. [2] If the constitutional claim is merely a regulative ideal, though, then it would seem that the liberal state is never completely legitimate–and that the liberal state’s legitimacy is essentially and ineluctably contestable. Few of constitutionalism’s defenders would be willing to sign on to such a claim, which tends to unsettle prevailing liberal sentiments regarding the rule of law, political obligation, and regime legitimacy. Even so, much of actually existing constitutional theory is also preoccupied with apprehending states of exception and emergency rule–that is to say, with attempting to chart the frontiers of extra-legality in public and international law.

Even in the most sere and stark articulation of its theoretical foundations, constitutionalism is riven with contradictions.

III.

Radical critiques of constitutionalism must simultaneously apprehend the form and the content of constitutionalism. A constitution may appear as a document, or as an empirical description of a polity. However, constitutionality is not simply a particular ordering of state forms; it is also an expression of state aims in the context of class conflict. Constitutions are both expressions and modalities of class rule.

This aspect of constitutionalism is obscured by the twofold liberal conceit of consent and neutrality. Constitutionality is integral to the legitimation of representative or parliamentary democracy. Moreover, it is taken as an axiom in most corners of contemporary democratic theory that democratic politics presupposes a complex of constitutional forms. These include legitimation through the invocation of popular sovereignty; the reflection of political relations through representation (of the electorate through office-holders, and of the nation through fictive sovereignty), the domestication of political conflict through institutionalization; and notional respect for individual rights given specificity–and limited applicability–through legal norms.

From this we can begin to appreciate that constitutionalism is not simply a way of producing governments; it is a way of reproducing particular configurations of social relations. Although liberal constitutionality frequently has the appearance of neutrality with respect to questions of collective social purpose and individual freedom, such neutrality is illusory. It disguises the class character of the capitalist state. A constitution not only specifies institutional competencies and boundaries. It articulates and grounds a particular conception (or perhaps several conceptions) of governmentality, as well as the techniques of rule and domination that are adequate for the operation of particular social logics, orderings of the political, and (last but not least) relations of production.

The contradictions of constitutional ideology are discerned through “the critique of political economy as a critical theory of society”. [3] That is to say, within the totality of capitalist relations, we are dominated by abstractions that mediate our social activity. The legal forms of constitutionality evoke illusions of collective self-management through parliamentary and administrative political processes. Those forms also conceal the operation of class power behind the appearance of formal classlessness. Recognizing this can lead to the temptation to dismiss constitutionality as a mystificatory veil cast before the operations of social power. However, it is vital that we apprehend dialectically the ways in which abstractions can dominate us. It is equally important to understand that they do so with an ontic heft that, while perhaps not as viscerally perceptible as the coercive apparatus of the state or more or less officially sanctioned forms of social violence like racialized and gendered oppression, nevertheless conditions the ordering of social relations that obtains in a given polity.

IV.

Constitutions are manifestations of social power. While constitutionality possesses a determinate conceptuality that is amenable to formal analysis through jurisprudence and constitutional theory, it is expressed and given content through social relations. Lukács famously quipped that the value-form “has the same ontological rigor of facticity as a car that runs you over”. [4] Similarly, the abstractions of constitutionality are capable of structuring and conditioning social relations–just as surely as they are structured and conditioned by social relations, albeit in different ways.

The practice of constitutionalism is a process through which certain forms and relations are articulated through, reproduced by, and invested with social efficacy. The hierarchy of legal norms presupposed by the practice of constitutionalism is endowed with content and form through social activity. It may seem otiose to point that out. Nevertheless, if we are to apprehend constitutionalism as a constituent of a totality, we cannot entertain the notion that there are such things as constitutional objects that are anterior to the social. We would do well to reject the belief that there are juridico-political phenomena such as “the rule of law” or “the rights of the citizen” that are anterior to historically specific social circumstances:

“Law is not … a thing, such as a brick or a rock or a scaffolding. Nor is state power (or sovereign power) a substance or object. … [L]egal ideology and state power can never be studied ‘by themselves’, for to do so only gives a false picture. Legal ideology and state power are always in the process of coming into being, changing and being changed, and being swept out of existence. The [legal] positivists look only at the structure of social relations, while the important inquiry is into their motion. … What we call ‘law’ is, in short, not a system but a process.” [5]

Constitutionality is also an aspect of the “strategic field” of the contemporary state. [6] Not only is it part of the terrain of political struggle, but it is also frequently the object of political struggle. A Marxist critique of constitutionalism must take the claim that “the executive of the modern state is but a committee for managing the common affairs of the whole bourgeoisie” [7] not as a conclusion, but rather as a point of departure for further critical inquiry. Liberal constitutional states are undoubtedly sensitive and responsive to the pressures and demands of the project of maintaining capitalist social relations (indeed, the history of liberal state-formation cannot be disaggregated from the social conflicts through which capitalist social relations were elaborated and extended). However, they manifest in diverse institutional and juridical patterns. These, in turn, have discernible consequences both for liberal politics and radical counter-politics. Nor should the array of constitutional forms simply be interpreted as mere congeries of distinctive topographies scattered across the theater of political conflict. Constitutional forms are not simply perturbations in a pattern; nor are they merely particular battlefields in a war of position. Instead, they are co-products of social antagonism, just like formations and cross-cutting cleavages of power.

Social formations and power blocs expend considerable energy and resources in struggles over the construction of constitutional meaning and the elaboration of constitutional forms. Political struggle is often articulated in the register of constitutional law. In many constitutional democracies, the staffing of courts exercising constitutional review is a fiercely contested prize. The increasing interpenetration of constitutional and administrative law, characteristic of modern constitutional democracies worldwide, only further increases the political valence of constitutionalism. Finally, ongoing and deepening crises of parliamentary democracy [8] can only further elevate the political importance of legal forms of political activity. The legalization of politics and “juristocracy” [9] are increasingly preferred avenues for creating policy and making rules.

V.

An array of contradictions is open to Marxist inquiry into constitutionalism: the riddle of constituent power and its cognate, the puzzle of popular sovereignty; the “bootstrapping paradox” of constitutional legitimacy; the “dead hand of the past”; and, of course, the manifold contradictions that inhere in the positions adopted in interminable debates about the construction and interpretation of legal meaning. All of these puzzles are well-known to liberal thought.

Liberal theorists tend to treat contradictions as pathologies; this can lead to no small amount of special pleading and bullet-biting. Consider the paradox of grounding constitutional legitimacy in consent. No person in the United States today ever had the opportunity to ratify or endorse the condensation of public power into the institutional forms prescribed by a text drafted and ratified over two centuries ago (never mind the racialized, gendered, and classed exclusions inherent in the American framers’ sordid arrogation of constituent power). In acknowledging such historical deficiencies, liberal constitutional theorists will often insist that rational individuals would nevertheless consent to a reasonable set of constitutional norms and arrangements. Hopefully, actually existing constitutions can come to approximate such reasonableness. (With remarkable candor, Frank Michelman acknowledges that such imaginary constitutional authorship is a “pure abstraction, a transcendental-logical deduction necessitated by the prior determination of a thinker to think something.” Such a notion is central to the faith that “the constitution might somehow possibly be morally justified. Either way, we produce an author because we have to.” [10]) This line of thinking presupposes that such a puzzle can and must be solved in a way that satisfies the desiderata of a liberal conception of political legitimacy.

The Marxist constitutional theorist, on the other hand, needs no such scruples.

[1] Competing definitions abound, of course: positivist claims that constitutions are second-order rules, rules of recognition, or Grundnormen; natural law claims (popular in the United States) that constitutions are expressions of national aspirations and moral ideals; and so on. I foreground the relationship between constitutional norms and legitimacy, as claims bearing on this relationship exercise the most sustained and widespread interest in contemporary constitutional theory.

[2] Needless to say, I am eliding the question of what it would even mean for a political order to be legitimate–that is, the question of what legitimacy putatively entails or disallows.

[3] Frederick Harry Pitts, Critiquing Capitalism Today: New Ways to Read Marx (New York: Palgrave Macmillan, 2018), 249. Pitts uses this construction to gloss the overlapping critical projects of contributors to the Neue Marx-Lektüre, value-form theory, and related currents in Marxist theory.

[4] György Lukács, The Ontology of Social Being, vol. 1 (London: Merlin Press, 1978 [1971]), 40.

[5] Michael E. Tigar, with Madeleine R. Levy, Law and the Rise of Capitalism (New York: Monthly Review Press, 2000 [1977]), 258–9, 279 (original emphases).

[6] The state “is not a monolithic bloc but a strategic field”. Nicos Poulantzas, State, Power, Socialism (London: Verso, 2014 [1978]), 138.

[7] Karl Marx and Friedrich Engels, “Manifesto of the Communist Party” [1848]; available at https://www.marxists.org/archive/marx/works/1848/communist-manifesto/.

[8] See, e.g., Colin Crouch, Post-Democracy (Cambridge: Polity, 2004).

[9] Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge: Harvard University Press, 2004).

[10] Frank I. Michelman, “Constitutional Authorship”, in Larry Alexander (ed.), Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998) 64, at 92.

Rob Hunter holds a PhD in politics from Princeton University. He has previously written for The Guardian and Jacobin.