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Against Constitutionalism
A New Statesman Book of the Year
A critical analysis of the transformation of constitutionalism from an increasingly irrelevant theory of limited government into the most influential philosophy of governance in the world today.
Constitutionalism is universally commended because it has never been precisely defined. Martin Loughlin argues that it is not some vague amalgam of liberal aspirations but a specific and deeply contentious governing philosophy. An Enlightenment idea that in the nineteenth century became America’s unique contribution to the philosophy of government, constitutionalism was by the mid-twentieth century widely regarded as an anachronism. Advocating separated powers and limited government, it was singularly unsuited to the political challenges of the times. But constitutionalism has since undergone a remarkable transformation, giving the Constitution an unprecedented role in society. Once treated as a practical instrument to regulate government, the Constitution has been raised to the status of civil religion, a symbolic representation of collective unity.
Against Constitutionalism explains why this has happened and its far-reaching consequences. Spearheaded by a “rights revolution” that subjects governmental action to comprehensive review through abstract principles, judges acquire greatly enhanced power as oracles of the regime’s “invisible constitution.” Constitutionalism is refashioned as a theory maintaining that governmental authority rests not on collective will but on adherence to abstract standards of “public reason.” And across the world the variable practices of constitutional government have been reshaped by its precepts.
Constitutionalism, Loughlin argues, now propagates the widespread belief that social progress is advanced not through politics, electoral majorities, and legislative action, but through innovative judicial interpretation. The rise of constitutionalism, commonly conflated with constitutional democracy, actually contributes to its degradation.
A critical analysis of the transformation of constitutionalism from an increasingly irrelevant theory of limited government into the most influential philosophy of governance in the world today.
Constitutionalism is universally commended because it has never been precisely defined. Martin Loughlin argues that it is not some vague amalgam of liberal aspirations but a specific and deeply contentious governing philosophy. An Enlightenment idea that in the nineteenth century became America’s unique contribution to the philosophy of government, constitutionalism was by the mid-twentieth century widely regarded as an anachronism. Advocating separated powers and limited government, it was singularly unsuited to the political challenges of the times. But constitutionalism has since undergone a remarkable transformation, giving the Constitution an unprecedented role in society. Once treated as a practical instrument to regulate government, the Constitution has been raised to the status of civil religion, a symbolic representation of collective unity.
Against Constitutionalism explains why this has happened and its far-reaching consequences. Spearheaded by a “rights revolution” that subjects governmental action to comprehensive review through abstract principles, judges acquire greatly enhanced power as oracles of the regime’s “invisible constitution.” Constitutionalism is refashioned as a theory maintaining that governmental authority rests not on collective will but on adherence to abstract standards of “public reason.” And across the world the variable practices of constitutional government have been reshaped by its precepts.
Constitutionalism, Loughlin argues, now propagates the widespread belief that social progress is advanced not through politics, electoral majorities, and legislative action, but through innovative judicial interpretation. The rise of constitutionalism, commonly conflated with constitutional democracy, actually contributes to its degradation.
- GenresLaw
240 pages, Hardcover
Published May 17, 2022
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About the author
Martin Loughlin
29 books9 followersMartin Loughlin is Professor of Public Law. He was educated at LSE, the University of Warwick and Harvard Law School and held chairs at the Universities of Glasgow and Manchester before returning to LSE in 2000. He was a member of the Editorial Committee of The Modern Law Review from 1987 to 2010, serving as General Editor between 2002-07, and now sits on its Advisory Board. Martin was elected a Fellow of the British Academy in 2011 and in 2015 was awarded an honorary LL.D. by the University of Edinburgh. Between 2000 and 2002 he held a Leverhulme Major Research Fellowship, in 2007-08 was a Fellow of the Wissenschaftskolleg zu Berlin, in 20012-13 held a Law & Public Affairs Fellowship at Princeton University, in 2016-17 was EURIAS Senior Fellow at the Freiburg Institute of Advanced Studies, and in Jan-March 2019 was a MacCormick Fellow at Edinburgh University. Martin has been a Visiting Professor at many law schools including Osgoode Hall, Paris II, Pennsylvania, Renmin University (Beijing), and Toronto.
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Displaying 1 - 4 of 4 reviews
August 1, 2022
Drawing a crucial distinction between constititonal democracy and constititionalism, Loughlin builds a powerful case against the ideology of constitutionalism.
Constitutionalism is centered around the idea of a written constitution that not only institutes government office but is also an expression of the society's values. We have entered the era of a total constitution where every area of social life can be constitutionalized and articulated within the scheme of individual rights. Legislative action turns into executive action, merely implementing the provisions of the invisible constitution, interpreted by courts. Because the constitutional framework is comprehensive and permanent, in the public imagination all social change becomes possible only through courts, by means of constitutional litigation. We essentially sacrifice democratic determination for constitutional legality, a new species of law.
"It means governing in accordance with abstract principles of legality whose explication is as much a political as legal exercise, as much a governmental as a judicial undertaking. Abstract principles acquire meaning only when infused with values, with no rational method existing for choosing between contestable values claiming to be the best iteration of the principle. The rule of law no longer means conformity to rules: it requires a judgment on whether liberal principles of liberty and equality can be reconciled with claims of necessity and security."
Loughlin claims that this arrangement drains the blood out of democracy and threatens the possibility for collective decision making in the long term, rendering any meaningful opposition to the current economic order impossible. Instead, he argues in favor of constitutional democracy, where the constitution merely sets up the rules on how the constituent people will be governed, but does not ever resolve the tension between order and liberty, the collective and the individual. Their relationship must remain unresolved, suspended and open, for every new generation to determine democratically.
Constitutionalism is centered around the idea of a written constitution that not only institutes government office but is also an expression of the society's values. We have entered the era of a total constitution where every area of social life can be constitutionalized and articulated within the scheme of individual rights. Legislative action turns into executive action, merely implementing the provisions of the invisible constitution, interpreted by courts. Because the constitutional framework is comprehensive and permanent, in the public imagination all social change becomes possible only through courts, by means of constitutional litigation. We essentially sacrifice democratic determination for constitutional legality, a new species of law.
"It means governing in accordance with abstract principles of legality whose explication is as much a political as legal exercise, as much a governmental as a judicial undertaking. Abstract principles acquire meaning only when infused with values, with no rational method existing for choosing between contestable values claiming to be the best iteration of the principle. The rule of law no longer means conformity to rules: it requires a judgment on whether liberal principles of liberty and equality can be reconciled with claims of necessity and security."
Loughlin claims that this arrangement drains the blood out of democracy and threatens the possibility for collective decision making in the long term, rendering any meaningful opposition to the current economic order impossible. Instead, he argues in favor of constitutional democracy, where the constitution merely sets up the rules on how the constituent people will be governed, but does not ever resolve the tension between order and liberty, the collective and the individual. Their relationship must remain unresolved, suspended and open, for every new generation to determine democratically.
March 2, 2023
Truely unreadable musings of a constitutional historian critical of the now American-style constitutional orthodoxy. Turned to this book after giving up on the author’s supposed magnum opus on public law which is similarly unreadable. Jeremy Waldron’s work is much more accessible and convincing.
August 2, 2022
A robust reconstitution of a certain model of constitutionalism that mistakes the part for the whole and basically overlooks jurisdictions other than a few Anglophone countries, France, and Germany, except as sources of examples for malaises diagnosed from the experience of these core countries.
Displaying 1 - 4 of 4 reviews