Martin Loughlin on Constitutional Interpretation and Democracy

Summary

This paper explores the evolving role of constitutionalism in regulating political life, emphasizing debates over constitutional interpretation in both the U.S. and Europe. The author contrasts strict constructionism with aspirational constitutionalism, examining the American experience as a model of constitutional identity tied to national values. Drawing on historical struggles, such as the American Civil War, the paper critiques the overly ambitious goals of aspirational constitutionalism, especially in post-1989 Eastern Europe. Ultimately, the work argues that constitutions should primarily maintain social peace and state authority, rather than impose particular visions of social justice.

Takeaways

• 😀 The role of the Constitution in regulating political life has never been greater, as constitutional courts increasingly determine disputes that once seemed beyond their scope.
• 😀 Constitutional interpretation has become a significant area of debate, particularly in the U.S., with two main schools: strict constructionism and aspirational constitutionalism.
• 😀 Strict constructionists argue that the Constitution should be interpreted based on its original meaning or plain text, while aspirational constitutionalists believe its meaning should evolve with society.
• 😀 Aspirational constitutionalism is particularly influential in newly established democracies, where constitutions are often interpreted as living documents that must adapt to modern values.
• 😀 Constitutionalism, in the broader sense, is not just a legal technique but a product of historical practices and political struggles, shaped by the collective political identity of a regime.
• 😀 The U.S. has made significant progress in aligning its Constitution with the political identity of its people, despite its history of compromise, particularly over slavery.
• 😀 Foundational moments, such as crises or revolutions, often lead to the drafting of constitutions that signal a break from the old political order, though reconciling majority and minority experiences can be difficult.
• 😀 The main function of a constitution is to establish the authority of the state and maintain social peace, not necessarily to impose a particular set of values or justice ideals.
• 😀 In newly democratized countries, such as those in Eastern Europe post-1989, aspirational constitutionalism can be too ambitious, given the challenge of building stable political and social systems.
• 😀 The success of constitutionalism depends on the ongoing political experience and actions that align constitutional texts with the lived reality of society, aiming for a political order that reflects the collective identity of the people.

Q & A

What is the central argument of the paper in the transcript?

The central argument of the paper is about the evolving role of constitutions in political life, particularly in terms of constitutional interpretation. It examines the shift from traditional legal interpretation methods to more aspirational approaches, where constitutions are viewed as dynamic documents that must adapt to societal changes.

How has the role of constitutions in political life changed in recent years?

Constitutions have become central to political regulation, with an increasing influence of constitutional courts in resolving political disputes. This shift has led to debates about the methods of constitutional interpretation and the power of these courts in determining political outcomes.

What are the two main schools of constitutional interpretation discussed in the paper?

The two main schools of constitutional interpretation are strict constructionism and aspirational constitutionalism. Strict constructionists believe in interpreting the constitution according to its original meaning or plain text, while aspirational constitutionalists view the constitution as a living document that must evolve with societal changes.

What is aspirational constitutionalism and how does it differ from strict constructionism?

Aspirational constitutionalism holds that the constitution must adapt to social changes and evolving conceptions of justice, while strict constructionism emphasizes interpreting the constitution based on its original text and intent. Aspirational constitutionalism supports the idea of reinterpretation in line with current societal values, whereas strict constructionism stresses stability and adherence to the original meaning.

How does the paper suggest the U.S. has advanced in constitutionalism?

The paper suggests that the U.S. has come closest to realizing a constitution that reflects the political identity of the people, with a focus on the Constitution as central to the national character. This has been achieved through continuous reinterpretation and the involvement of constitutional courts in shaping political life.

What historical context does the paper emphasize regarding the American Constitution?

The paper emphasizes that the American Constitution, despite its idealized founding rhetoric, was born out of significant compromises, particularly regarding slavery. The Constitution's authority was maintained through these compromises until the Civil War, after which it underwent reinterpretation to better reflect the nation's evolving values, especially concerning civil rights.

Why does the paper argue that constitutionalism is not merely a technique of governance?

The paper argues that constitutionalism is a product of ongoing political struggle and an evolving set of practices that shape a nation’s political identity. It emphasizes that constitutionalism aspires to align the written constitution with the broader customs, practices, and collective identity of a society, which requires political action and historical experience.

What role does the concept of 'constitutional identity' play in the paper?

The paper uses 'constitutional identity' to refer to the collective sense of political identity that is shaped by both the constitution as a text and the constitution of a regime. It suggests that constitutional authority derives not just from the written document but from the acceptance and internalization of its values by the people it governs.

How do constitutions reflect moments of national crisis according to the paper?

Constitutions often emerge from moments of national crisis or rupture, such as after wars or revolutions. These foundational moments signal a break from the old order and the beginning of a new political identity. However, the paper also highlights the difficulty in building a cohesive national identity when the constitution is adopted in a context of division, such as after a defeat or a violent political transition.

What critique does the paper offer regarding post-1989 Eastern European transitions?

The paper critiques the overly ambitious application of aspirational constitutionalism in post-1989 Eastern Europe. It argues that the expectation for these newly independent states to establish democratic institutions, market systems, and civil societies all at once is unrealistic, given their limited historical experience and the complexity of the transitions they faced.