III. Interests: Constitutionalization as “Hegemonic Preservation”
A strategic approach to constitutional transformation focuses on various power holders’ incentives for constitutionalization. This approach makes five preliminary assumptions.
First, constitutionalization does not develop separately from the concrete social, political, and economic struggles that shape a given political system. Indeed, constitutionalization, and the expansion of judicial power more generally, are an integral part and an important manifestation of those struggles, and cannot be understood in isolation from them.
Second, when studying the political origins of constitutionalization (as well as the political origins of other institutional reforms), it is important to take into account events that did not occur and the motivation of political power holders for not behaving in certain ways. In other words, the political origins of constitutional reform cannot be studied in isolation from the political origins of constitutional stalemate and stagnation.
Third, deriving from the second assumption is the idea that the precise timing of constitutionalization initiatives is of great significance in understanding their political origins. Demands for constitutional change often emanate from various groups within the body politic. However, unless powerful political, economic, and judicial stakeholders envisage absolute or relative gain from a proposed change, the demand for that change is likely to be blocked or quashed. It is therefore essential to understand why a given polity (or an entity such as the European Union, for that matter) decided to embark on a constitutional overhaul precisely in the year it did and not a decade earlier or later.
Fourth, political actors’ behavior may be explained largely by reference to their interests or preferences. More often than not, their behavior is derivative of an attempt to maximize their gains or optimize their status or position within the structural constraints of the system they operate in. Like other major political and legal institutions, constitutions produce differential distributive effects: they privilege some groups, policy preferences and worldviews over others. Other variables being equal, prominent political, economic, and judicial actors are therefore likely to favor the establishment of institutional (and constitutional) structures most beneficial to them.
And fifth, because constitutions and constitutional courts hold no purse-strings, have no independent enforcement power, but nonetheless limit the institutional flexibility of political decision makers, the voluntary self-limitation through the transfer of policy-making authority from majoritarian decision-making arenas to courts seems, prima facie, to run counter to the interests of power-holders in legislatures and executives. Unless proven otherwise, the most plausible explanation for voluntary, self-imposed constitutionalization is therefore that political power holders who either initiate or refrain from blocking such reforms estimate that it serves their interests to abide by the limits imposed by greater judicial intervention in the political sphere. Political actors who voluntarily establish institutions that appear to limit their institutional flexibility may assume that the clipping of their wings under the new institutional structure will be compensated for by the limits it might impose on rival political elements, their alternative worldviews and policy preferences. In short, those who are eager to pay the price of constitutionalization must assume that their position (absolute or relative) would be improved under a binding constitution. Such an understanding of judicial empowerment through constitutionalization as driven primarily by strategic political considerations may take a thin or a thick form.
First, let us consider the thin strategic approach – constitutionalization as insurance. In their seminal work of 1975, William Landes and Richard Posner argued that, other variables being equal, legislators favor the interest groups from which they can elicit the greatest investment through lobbying activities. A key element in maximizing such investments is the ability of legislators to signal credible long-term commitments to certain policy preferences. An independent judiciary’s role in this regard complements parliamentary procedural rules – it increases the durability of laws by making changes in legislation more difficult and costly. A judiciary that is overtly subservient to a current legislature (or expressly biased against it) can nullify legislation enacted in a previous session (or current legislation), thereby creating considerable instability in legal regimes. In such legally unstable settings, selling legislation to powerful interest groups may prove difficult from the politicians’ point of view. The potential threat of instability or loss of mutual profits and power may therefore result in support for judicial empowerment vis--vis legislatures.23
Observing variations in the degree of judicial independence among industrial democracies, Mark Ramseyer develops Landes and Posner’s argument into a “party alternation” model, which suggests that judicial independence correlates to the competitiveness of a polity’s electoral market.24 When a ruling party expects to win elections repeatedly, the likelihood of judicial empowerment is low. Since rational politicians want long-term bargains with their constituents, they lack the incentive to support an independent judiciary when their prospects of remaining in power are high. However, when a ruling party has a low expectation of remaining in power, it is more likely to support an independent judiciary to ensure that the next ruling party cannot use the judiciary to achieve its policy goals. In other words, under conditions of electoral uncertainty, the more independent courts (or other semi-autonomous regulatory agencies) are, the harder it will be for the successive government to reverse the policies of the incumbent government.25 Therefore, in Japan, for example (where a single party ruled almost without interruption for more than four decades following World War II), judicial independence is weaker than it is in countries where there is an acknowledged risk that the party in power might lose control of the legislature in each election.
Tom Ginsburg builds upon this logic to provide a compelling account of the politics of constitution-making processes during periods of regime change and political transition. Akin to purchasing insurance in uncertain contracting environments, judicial review provides “insurance” against the risk of electoral defeat, thereby facilitating transition to and consolidation of democracy. “Where constitutional designers believe that they may not control the political institutions of government, they are likely to set up a court to serve as an enforcement body protecting the constitutional bargain from encroachment. When designers believe that they will retain a dominant position in government, they seek stronger power for the political branches and will forge institutional constraint in favor of parliamentary sovereignty.”26 At times of political transition, greater degrees of political deadlock and/or more diffused or decentralized political power increase the probability that uncertainty will be embedded in its constitution-making process and subsequent electoral market. This in turn leads to a greater likelihood that a relatively powerful and independent constitutional order will emerge as insurance adopted by risk-averse participants in the constitutional negotiation game. In short, judicial review, and constitutionalization more generally, are solutions to the problem of uncertainty in political transformation.27 Or in our context, the greater the number of veto points and/or projected political uncertainty, the greater the politicians’ corresponding desire for constitutionalization.
In a similar vein, the literature about the political origins of other relatively autonomous agencies suggests that the autonomy of, for example, central banks in advanced industrial countries is simply a function of government politicians’ time horizons. The longer the horizon of their time in power, the more politicians will desire the greatest possible control over economic policy. This implies a consequent loss of independence for the central bank. By this logic, short horizons or forthcoming elections can lead politicians who fear losing their office to increase central bank independence in order to limit the future options of their political opponents.28
According to the second and thicker strategic explanation for constitutionalization – which I term the hegemonic preservation thesis – constitutionalization is often driven by threatened political power-holders who seek to entrench their worldviews and policy preferences against a growing influence on the part of alternative worldviews, policy preferences, and interests in pertinent policy-making bodies. When facing possible threats to their hegemony, elites who possess disproportionate access to and influence over the constitutional arena may initiate a constitutionalization process in order to lock in their worldviews and policy preferences against unfavorable developments in the political sphere. Constitutionalization as political entrenchment of political privileges, hegemonic worldviews and cultural propensity may provide an efficient institutional means by which political power-holders can insulate their potentially challenged policy preferences against popular political pressure, especially when majoritarian decision-making processes are not guaranteed to operate to their advantage.
Space limitations preclude full substantiation of the hegemonic preservation approach to constitutionalization.29 As I show elsewhere, understanding constitutionalization as a form of hegemonic preservation by threatened elites and power-holders may shed light on the near-miraculous conversion to constitutionalism and judicial review among South Africa’s white political and business elites during the late 1980s and early 1990s, when it became clear that the days of apartheid were numbered and an ANC-controlled government became inevitable.30 Other examples include Canada’s adoption of the Charter of Rights and Freedoms in 1982 as part of a broader strategic response by the federalist, anglophone, business-oriented elites to the growing threat of Quebec separatism and rapidly changing Canadian demographics; and Israel’s 1992 adoption of two new Basic Laws protecting core rights and liberties, and the corresponding establishment of constitutional review in 1995 as part of a strategic response by Israel’s secular Ashkenazi bourgeoisie to the decline of its historical grip over that country’s majoritarian decision-making arenas.
Likewise, the 1994 judicial empowerment through constitutional reform in Mexico was a calculated attempt by the then ruling party (Partido Revolucionario Institucional – PRI) to lock in its historic influence within the judicial branch before the PRI’s increasingly popular political opponents (and eventual winners of the 2000 presidential election) gained control. The same logic may also explain the scope and timing of the June 1991 constitutionalization of rights in British-ruled Hong Kong, which occurred less than two years after the British Parliament ratified the Joint Declaration on the Question of Hong Kong, whereby the province was restored to China in July 1997; or Britain’s enthusiastic support for the entrenchment of property rights in the “independence constitutions” of newly self-governing African states (e.g. Ghana in 1957, Nigeria in 1959, and Kenya in 1960), while it was unwilling to incorporate the provisions of the European Convention on Human Rights into its own legal system (let alone to enact a constitutional bill of rights of its own).
Or consider the establishment of strong constitutional courts in predominantly Islamic polities such as Egypt, Pakistan, and Turkey as part of a broad strategy by secular, relatively cosmopolitan elites in these countries to tame anti-secularist popular political forces. The hegemonic preservation approach may explain the key role the Turkish Constitutional Court has played in preserving the strictly secular nature of Turkey’s political system, by continuously outlawing anti-secularist popular political movements in that country (including the 2001 dissolution of the pro-Islamic Virtue Party, which was the country’s main opposition group at the time); or the establishment of judicial review in Egypt in 1979 amidst a resurgence in Islamic fundamentalism, and the crucial role of the Egyptian Supreme Constitutional Court in advancing a liberal interpretation of Islamic Shari’a rules.31
The counterintuitive nature of the strategic approach to constitutionalization has striking parallels in works concerning the political origins of empowerment of other semi-autonomous institutions, such as central banks, environmental regulatory bodies, and supranational treaties and tribunals. Variance in the capacities of early central banking institutions in developing countries, for example, was shaped by the changing financial interests of those in a position to voluntarily delegate authority to central banks: government politicians and private banks.32 Similarly, varying degrees of support by existing firms towards proposed environmental regulatory policies can be explained by the different limits and costs such policies impose upon new firms. Because environmental regulation typically imposes more stringent controls on new firms, it restricts entry into the marketplace and potentially enhances the competitive position of existing firms.33
A similar rationale for judicial empowerment at the supranational level is put forward by the “intergovernmentalist” thesis concerning the evolution of the European Court of Justice (ECJ).34 According to this thesis, member states choose to create (and selectively adhere to the limits imposed by) supranational institutions primarily because these institutions help them surmount problems arising out of the need for collective action, and overcome domestic political problems. National governments of the EU member states have not been passive and unwilling victims of the process of European legal integration; they consciously transferred power to the Court, and where the ECJ has been proactive, the member governments have supported this. Moreover, the selective implementation of ECJ rulings by member states derives from domestic political considerations by national governments (such as a greater willingness to implement ECJ judgments that favor certain constituencies whose political support is essential for governments and ruling coalitions). Decisions of the ECJ enjoy different levels of enforcement and real impact in areas of public policy, depending on the constellation of political forces in each.35
Along the same lines, other works suggest that in newly established democracies in post-World War II Europe, governments committed to international human rights regimes (the European Court of Human Rights, for example) as a means of “locking-in” fundamental democratic practices in order to protect against future antidemocratic threats to domestic governance.36 Governments resorted to this tactic when the benefits of reducing future political uncertainty outweighed the “sovereignty costs” associated with membership in such supranational human rights enforcement mechanisms. When applied to the EU context, this rationale may explain the pro-constitutionalization stance of progressive circles within member states such as Germany, France, Austria, and the Netherlands. These constituents view the adoption of a constitutionally entrenched European bill of rights as a mechanism to lock in their liberal, cosmopolitan worldviews against the increasingly popular extreme right, nationalist and racist political platform.
The same logic may explain the voluntary incorporation of major international treaties and covenants protecting fundamental human rights and civil liberties into embattled democracies’ constitutional law (as happened in Argentina in 1994);37 or the constitutionalization of rights and the corresponding establishment of full scale constitutional review following years of political instability and recurring military coups d’état (as happened in Thailand in 1997).38 Likewise, NAFTA’s precision, for example, may be viewed as “part of the Mexican government’s strategy to bind successor governments to its policies of economic openness.”39 Hence, “governments may turn to international enforcement when an international commitment effectively enforces the policy preferences of a particular government at a particular point in time against future domestic political alternatives.”40 In other words, self-interested political incentives – rather than the altruistic considerations of political leaders, or universal commitment to a morally elevated conception of human rights – provided the major impetus for various countries’ commitment to binding supranational human rights and free trade regimes.
In sum, under circumstances of increased uncertainly, potential risk, or perceived threat to their interests, political power holders may choose to enhance their position by voluntarily tying their own hands. Such incidents of strategic self-limitation may be beneficial from the point of view of political power holders when the limits imposed on rival elements, worldviews, or interest within the body politic outweigh the limits imposed on themselves.
IV. Strategic Constitutionalization in Europe
The process of adopting a comprehensive EU Constitution is still in its formative stages. The final legal text of the June 2004 constitutional treaty may not be available for several months. At least ten member states, including Britain, Spain, and Poland, plan to hold referendums on the constitution. Other countries may yet follow suit. Though no definitive statements as to the origins of the EU constitution can be offered, I believe that initial evidence concerning the political vectors behind the EU constitutionalization process lends credence to the strategic approach to constitutional transformation. Akin to the few other “no apparent transition” constitutional revolutions mentioned above, the current EU constitutionalization process is best understood as a type of “hegemonic preservation” measure undertaken by self-interested, risk-averse political power-holders who, in an attempt to mitigate the uncertainty and potential threats posed by EU enlargement, may seek to entrench their privileges, worldviews and policy preferences through constitutionalization. In other words, I argue that strategic constitutional innovators – hegemonic yet threatened political power-holders (e.g. important member state governments), in association with bureaucratic, economic and judicial elites sharing compatible interests – have been the major driving forces behind the EU constitutional reform.
The May 2004 enlargement poses a potential threat to established power-holders within the EU. For one, it means an unprecedented expansion in the number of member states by two-thirds (from 15 to 25), and an addition of more than 80 million new EU citizens. The post-expansion EU citizenry will include roughly 455 million people, over 20 per cent more than the size of the pre-enlargement populace.41 Such a dramatic overnight expansion of a supra-national polity’s populace has only two analogous occurrences in recent memory – the incorporation of the former East Germany into unified Germany, and the 20 per cent rise in Israel’s population following the arrival of approximately one million immigrants from the ex-Soviet Union during the early 1990s. Such dramatic expansion entails greater social, cultural and political heterogeneity within the EU. It inevitably increases the level of political unpredictability and possibly even instability within the EU. The sense of increasing uncertainty is further intensified by central Europe’s suspected harboring of an outmoded attachment to national sovereignty, as well as by the rather limited experience of the eight central European accession countries with the prevalent western formula of liberal democracy and market economy. Indeed, the general sense among core EU members is that the eastward expansion decreases democratic attitudes and increases “statist” orientations within the EU.
The very entry of the large and heavily populated Poland, as well as the smaller yet symbolically central Czech Republic and Hungary is profoundly unsettling to EU traditionalists. European integration began with Franco-German reconciliation after World War II. The EU’s main institutions are still stretched out along the Franco-German borderlands, in Brussels, Luxembourg, and Strasbourg. For French and German politicians, it is axiomatic that their relationship should remain the fulcrum around which the EU revolves. But enlargement will shift the center of gravity. The decision of the Poles and most other central Europeans to take a pro-American stand over Iraq was received particularly badly in France, prompting Jacques Chirac’s now infamous remark that the newcomers had “missed a good opportunity to shut up.” As Viscount Etienne Davignon, a Belgian former vice-president of the European Commission, and one of the epitomes of the EU’s great and good says: “We have to remember that the Poles have only recently regained their national sovereignty and are new to the European Union. It takes many years of membership before people really understand how Europe works.”42
Core elements within the EU view the May 2004 enlargement as a watering down the entire integration process. The notion that Poland and the other seven central European accession countries might possibly have alternative ideas and policy preferences that are as valid as those of the six “founding members” is apparently too fanciful to contemplate. As recent accounts of European integration have noted, it is now taken that post enlargement EU will be a much more diversified entity. “The Eastern European accession countries are significantly poorer than the current West European member states. Their democracy and in some cases even their statehood is newly established and presumably more fragile. Their economic, legal, and administrative structures are less developed. They also have their own distinct histories, societies, and cultures.” Thus, their visions, interests and priorities may diverge within the “Eastern” group, in addition to differing from those of current EU members. “In fact, in view of the numerous structural differences between the current and prospective EU member states, it is difficult to expect there to be a major durable alignment of their respective political preferences and behavior after enlargement.”43 Indeed, the post-communist accession countries have long been perceived by the West as “backward” and less “civilized,” and not an integral part of Europe. As Giuliano Amato and Judy Batt have observed, “[t]he prospect of enlargement to the East has brought these prejudices to the fore, further contributing to the tendency to portray the increasing diversity that it entails as a new and uniquely threatening challenge for the EU.”44
And we have not yet said a word about deeper threats posed by further enlargement that would include developing countries such as Romania, Bulgaria, Croatia, and Macedonia (let alone Albania, Bosnia-Herzegovina and Turkey) – all of which lag far behind West European development standards, include significant non-Christian population, and most importantly, lack political stability or long term commitment to liberal democratic values. The constitutional entrenchment of a core set of cultural propensities, moral standards, and practical guidelines for public life addresses such concerns by imposing a centralizing, “one rule fits all” regime upon an enormous and exceptionally diverse EU.