Political Constitutionalism and the Question of Constitution‐Making

• Date: 01 September 2014
• Author: Marco Goldoni
• DOI: http://doi.org/10.1111/raju.12050
• Published date: 01 September 2014

Political Constitutionalism and the

Question of Constitution-Making

MARCO GOLDONI

Abstract. The debate on political constitutionalism has entirely neglected the

constitution-making dimension. This is probably due to the fact that constitution-

making usually brings with it undesirable outcomes such as the entrenchment of

rights or structures. These outcomes do not respect reasonable disagreement

among citizens because they violate the only fair system for settling disagree-

ment: majority rule and equal voting rights. This article argues that political

constitutionalists may regret the absence of any claim about constitution-making.

Either they are overlooking certain problems inherent to the electoral process

that is supposed to tackle disagreement or, even worse, they are downplaying

the entrenching effect of ordinary political processes by ignoring the redemptive

properties of constituent power. In both cases, their claims undermine the politi-

cal dimension of constitutionalism.

Political constitutionalism (e.g., Griffith 1979; Waldron 1999; Tomkins 2005;

Bellamy 2007) as a theory in which the principle of political equality plays a

central role can be praised for several reasons. From the appraisal of representa-

tive democracy to the focus on the importance of respect for disagreement,

political constitutionalism has been able to pinpoint many deficiencies in con-

temporary constitutional theory. A considerable amount of attention has been

paid to the attack by political constitutionalists on the legitimacy of judicial

review (see Waldron 2006; Fallon 2008; Kavanagh 2009; Craig 2011). However,

this is not the only controversial claim coming from political constitutionalists.

The aim of this article is to stress the absence of any serious reflection on

constitution-making1in the works of political constitutionalists, and to show why

this rejection is regrettable even from the internal point of view of the theory.

This absence is not really surprising, given that for these theorists, a political

constitution is equivalent to the continuous making of a constitution (Gee and

1Constitution-making is used in this paper as a concept for any kind of constitution writing

or transformation. As a result, it encompasses constitution enactment and constitutional

amendments. Constitution-making does not necessarily entail entrenchment, but in this article

only constitution-making leading to some kind of constitutional entrenchment will be

considered.

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Ratio Juris. Vol. 27 No. 3 September 2014 (387–408)

© 2014 The Author. Ratio Juris © 2014 John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main

Street, Malden 02148, USA.

Webber 2010). Political constitutionalists support the idea that any conception of

higher law is illegitimate because it either implies natural law or assumes that

there are higher and lower forms of politics. In terms of the vexed question of

the relation between constitutionalism and democracy, this means that constitu-

tional entrenchment as the outcome of constitution-making is illegitimate, both in

its absolute and relative versions.2As a result, from a political constitutionalist

perspective it does not make sense to think of different levels of constitution-

making, such as enacting, transforming or amending a constitution (cf. Arato

2011). Given the centrality of politics in this theory, this may appear to be a

rather perplexing absence. In fact, in many instances, constitution-making is

deemed to be one of the most intense political activities (Elazar 1986). As Arendt

(1990, 141) has reminded us, at least from the eighteenth century onwards, there

was a revolutionary tradition highly appreciative of political participation under-

lying many written constitutions, and constitution-making came to be under-

stood as the product of these periods of great political freedom.

The gist of the argument outlined in this article is that the omission of any

consideration of the added value of constitution-making, at least in certain circum-

stances, is not a casual outcome, but a side-effect of a certain, perhaps reductive,

conception of politics and, more generally, of a partial reading of the main

principles of constitutionalism. This article intends to stress two points, both related

to how political equality is understood by political constitutionalism. The first is

that the critique of any kind of constitutional law as higher law does not hold up

to closer scrutiny; the second is that the praise of the adaptability of the political

constitution to new political or social circumstances is highly exaggerated. From

this point of view, the main lesson of political constitutionalism would be greatly

enhanced if constituent power were to be taken into account. Both critiques point

to the absence of a reflection on the idea of constitutional identity in the scholarly

work on political constitutionalism (Jacobsohn 2010).

1. The Core of the Normative Case for Political Constitutionalism:

Political Equality

As a constitutional theory, political constitutionalism is comprised mainly of three

tenets. The first states that a legitimate constitutional order should be based on the

principle of political equality. Starting from the recognition of the two fundamental

conditions of politics, that is, an irreducible plurality of opinions on common

collective problems and the need to find a solution to deal with them (Waldron

1999, 107–9; Weale 1999, 8–12), the conclusion one can draw is that the only

principle that can secure equal respect among the people is political equality. Equal

concern entails that the interests of all citizens should be equally promoted. One

may interpret this condition in output terms (Scharpf 1999, 10–2), considering the

political process only instrumentally as a means to achieve certain outcomes. But

political constitutionalists also believe that reasonable disagreement applies to the

evaluation of outcomes (Christiano 1996; Waldron 1999). For this reason, equal

concern involves according equal weight to their opinions and beliefs. In this

2For different kinds of entrenchment, see Albert 2009, 678–97.

388 Marco Goldoni

© 2014 The Author. Ratio Juris © 2014 John Wiley & Sons Ltd. Ratio Juris, Vol. 27, No. 3