Democracy, the Courts, and the Liberal State

A Comparative Analysis of American and German Constitutionalism

David Miles

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9780429534942
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Public Law
• Index: Politics & International Relations

Reformulating a problem of both constitutionalism and liberalism discussed in the works of Ernst-Wolfgang Böckenförde, Hannah Arendt, and Alexis de Tocqueville, the book examines one generally overlooked manifestation of constitutionalism: the role of the courts in shaping democratic politics and the inter-relationship between citizens and state.

Drawing on constitutional history, law, and political theory, David Miles argues that constitutionalism cannot be seen merely as an institutional mechanism to limit government, as it also has a crucial civic dimension upon which the liberal state depends. Utilising the works of Böckenförde, Arendt, and Tocqueville, constitutionalism is conceived in the book as part of a broader system of communal norms which sustains representative democracy and liberalism. Through an analysis of judicial interventions in the electoral processes of the United States and Germany, Miles explores the role of civil society actors in transforming constitutionalism through legal challenges to oligarchical or exclusionary practices. He assesses how, in adjudicating these cases, the US Supreme Court and the German Constitutional Court have mediated the tension between threats to stability and the imperative of democratic renewal.

Democracy, the Courts, and the Liberal State will be of interest to scholars, students, and practitioners interested in comparative politics, political theory, and constitutional law and history.

1 Taking Democracy Seriously

What has changed since the Second World War is the acceptance that there is an overriding body of legal principle which limits the powers of the sovereign state; and that, in the German perspective, is very fundamental precisely because they saw what could be done with an unscrupulous government, using conventional legislative methods. So the idea of an overriding and encircling body of ‘law’ is something which has developed and constitutionalism is part of it.

(Judge David Edward,¹ interview with author, October 2013)

It ought not to be regarded as slavery to live according to the constitution, but rather as self-preservation.

(Aristotle, The Politics, Bk V. ix)

The Waldronian focus on constitutional institutions considered in the introduction is an important aspect of constitutionalism. However, a concentration on constitutional mechanisms alone can neglect important aspects of the electoral politics of the United States and Germany. In terms of numerical malapportionment in the 1960s, what happens when the spirit and letter of constitutional rules and democratic processes are deliberately ignored by self-serving politicians, and that malfeasance is then compounded due to non-enforcement of those rules by the federal courts? What happens when, as in 1930s Germany, a political party is elected democratically according to the constitutional rules, but then uses those same constitutional institutions to dismantle democracy and the rule of law, leaving only the empty edifice of positive law to justify state power?

These questions highlight some of the historical reasons why constitutionalism matters, but there is also a more functional reason for constitutionalism. It provides a structure and framework for normal politics to unfold. Constitutionalism is intended to remove from the table those issues which might be a source of violence, such as occurred in previous centuries, so that the main topic of politics becomes competition over differing interests (Kautz, 2011: 2). This logic of continuity and stability from one generation to another is one that made sense to the ancient Greeks. Stephen Holmes notes that most early-modern theorists of politics, Rousseau included, recognised that the great achievements of the ancient world would have been impossible had “one generation been unwilling or unable to create a difficult-to-change political framework within which subsequent generations could predictably live” (Holmes, 1995: 148). “To live according to the constitution”, as Aristotle noted, should be regarded not as “slavery”, but as “self-preservation” (Bk V. ix). Indeed, the very essence of constitutionalism, this book argues, is that the trade-offs and limitations intrinsic to it must be understood and accepted by citizens, as Aristotle implies.

This ‘security’ or ‘survival’ element of constitutionalism highlights its complex role in mediating between the state’s function of ensuring civil peace and the role of politics to allow different groups and factions to pursue certain interests and, when they form a majority, to enact particular policies without injuring the rights of those in the minority or in opposition. The understanding of where an ‘unrestrained’ politics could lead was as clear to the post-1945 German founders and to the American constitutional framers as it had been to Aristotle. Diagnosing the problems of an unrestrained American majoritarian politics in 1787, Madison wrote in Federalist 10 that:

Complaints are everywhere heard from our most considerate and virtuous citizens … that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.

(Madison, Federalist 10, 1987a: 123)

At the core of Madison’s fear is that an unrestrained politics can lead to extremes and enmities that can imperil the rights, interests, and liberty of individuals in a society. Without such restraints, Madison observed that

A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts.

(Madison, Federalist 10, 1987a: 124)

It is hard to read Madison’s warning about unrestrained politics without recalling Carl Schmitt’s friend-enemy dichotomy in the Concept of the Political. Schmitt’s view that ‘the political’ can often lead to enmity (2008: 28) animates his focus on the Hobbesian role of state authority in controlling the effects of this animosity. Commenting on the significance of Schmitt’s work, Ernst-Wolfgang Böckenförde observes:

How do you want to understand the political world today without the insight that the political can lead to enmity time and again? It doesn’t have to, but it can, and often does. It is only this that reveals the importance and function of the state as a political entity and the guarantor of peace within the state. One must know about this peculiarity of the political so that one can engage in sensible politics.

(Böckenförde, 2017: 372)

The keys to this ‘sensible politics’ are the written and unwritten rules that constitutionalism imparts. Yet citizens are more likely to overlook the importance of such a rule-based politics at times of economic uncertainty, and to retreat instead into the comforting certainty of identity based allegiances and affiliations. This point about how a constitution reflects, or shapes, the nature of its political system and society is addressed in the chapters ahead. Central to the experience of American and German constitutionalism has been a more dynamic inter-relationship where American and German identity and society have been shaped as much by the values enunciated in their constitutional texts as the other way around. However, support for the values of constitutionalism among political elites is crucial at the establishment of a constitutional order. As Mark Tushnet notes, without support for constitutionalism from the political system of a country, neither institutional design nor normative principles will count for much (2007: 1488). Important considerations, then, in assessing the relationship between constitutionalism and democratic politics are the circumstances surrounding a constitution’s birth, and the attitudes and motivations of the individuals establishing the constitutional instruments.

In this chapter, the degree to which a polity tolerates the emergence of certain values and opinions in the formation of majority rule will be considered in the context of an American constitutionalism characterised more by liberty, and a German constitutionalism which has been oriented more to dignity. As will be addressed, this distinction shapes how in the United States most values and opinions are able to form, while in Germany there are absolute checks on whether opinions and values hostile to the constitutional order may emerge. One consequence of the liberty-dignity dynamic is that while the US Supreme Court has tended to formalise emerging majority opinion on issues like desegregation and reapportionment, the role of the Bundesverfassungsgericht (BVerfG) as the guardian of Germany’s highly normative constitution has been more pedagogic in inculcating the values of the Basic Law in civil society.

The chapter then sets out the ‘stability renewal’ paradigm and how German constitutionalism has balanced the challenges of threats to the state, the integration of new political parties into the political system, and whether to maintain aspects of the militant democracy such as the thresholds for electoral success. A fine line exists between stability and ossification, which the BVerfG has not always mediated successfully. American constitutionalism has also come to recognise equality and human dignity in important court rulings such as Brown v Board of Education (1954a), Baker v Carr (1962), and Reynolds v Sims (1964a). Unlike in Germany, though, where rights are seen as anterior to the state and a precondition of democracy, in the US the emergence of these constitutional values has been largely the result of the free development of democratic principles in civil society and the parallel expansion of the suffrage and democratisation of political institutions.

The chapter then briefly assesses what I term ‘post-1945 constitutionalism’, including the establishment of international human rights instruments and a clear view of the centrality of the individual in law. This post-war period was characterised by the establishment of constitutional courts in Germany, Italy, and then later in Spain, which signified an effort to re-establish constitutionalism in countries where malignant legislative enactments and the tenets of legal positivism had conspired to undermine human rights. Yet the dialectic of human rights at the international level also had consequences in terms of growing individualism within liberal democratic states, challenging their ability to maintain societal cohesion and uphold their constitutional values (Böckenförde, 1991: 45). The role of constitutionalism in shaping those domestic values is considered now.

Constitutionalism

Martin Loughlin writes that “constitutionalism involves the attempt to subject all governmental action within a designated field to the structures, processes, principles, and values of a ‘constitution’” (2012: 47). According to McIlwain, constitutionalism “in all its successive phases” from ancient Greece onwards has “one essential quality: it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law” (2005: 24). According to Walter Murphy,

constitutionalism … enshrines respect for human worth and dignity as its central principle. To protect that value, citizens must have a right to political participation, and their government must be hedged in by substantive limits on what it can do, even when perfectly mirroring the popular will.

(Murphy, 1993: 6)

In other words, constitutionalism—meaning the constitutional rules and values of a political order and legal order—is better seen not as a limitation, but as a necessary condition for establishing democratic politics and ensuring rights of participation. Constitutionalism facilitates genuine democracy by securing democratic rights and puts in place measures to protect the minority² against the dangers of majoritarian excess. Parts of McIlwain’s seminal account from the late 1930s are tinged with his obvious awareness of the threat that constitutionalism was facing from European totalitarianism (see 2005). The definition advanced by Murphy has incorporated the notion of protecting fundamental rights, human worth, and dignity, reflecting the new human rights priorities in constitutionalism which arose after 1945.

Keith Whittington writes that “the rise of the modern notion of constitutionalism was intertwined with liberalism, the belief that there were limits to the legitimate power of government, and that those limitations should be made effective and real” (2011: 221). Where constitutionalism ought to come into its own is, first, when the values of the constitutional order (i.e. justice, equality, liberty, human dignity) are challenged by individuals or groups in society, and, second, when voters elect representatives to power who are indifferent to the constitution’s values or actively hostile to them, as the Nazis were to those of the Weimar Republic. This view of constitutionalism is that it provides a safety mechanism to prevent democracy becoming a conduit for the infringement of rights as was the case during the National Socialist period in Germany. Put simply, this view sees constitutionalism principally as a limitation on government.

Although restraint is certainly an important aspect of constitutionalism, particularly in its American manifestation, constitutionalism can also have some positive content in terms of specifying the substantive ideals of a polity and the overall context within which the relationship between citizen and state is shaped. German constitutionalism reflects both conceptions of constitutionalism, as a limiting and empowering mechanism. Alexander Somek argues that the “reasonable recognition concerning the supreme value and authority of human dignity and human rights” which emerges after 1945—what he calls ‘Constitutionalism 2.0’ and which is embodied in the constitutional practice of Germany’s Basic Law—helps us understand constitutionalism as a “project of emancipation” (2014: 9). The assumption of many after World War II was that constitutionalism had secured, à la Fukuyama, the permanent ascendancy of liberal values with no possibility of a return to the barbarity of the past. But as Somek observes, “no emancipation is possible without political action” (2014: 283). Somek’s view helps us see that constitutionalism is not merely a neutral vehicle into which any values (emancipatory or regressive) can be poured. The “project of constitutionalism”, writes Kautz, is in some cases “an avowedly partisan project, whose aim is to establish a liberal polity in the face of a political culture that is at least somewhat resistant to liberalism” (2011: 4). We can see, then, a potential contradiction between constitutionalism as a mechanism to restrict the popular will, yet also facilitate the political action necessary to emancipate citizens and secure rights.

The portrait of democracy and the possibility of constitutionalism offered in this chapter and in the chapters ahead is a guarded one, reflecting the inherent challenge of building institutions which, to paraphrase Carl Friedrich, can preserve human dignity while controlling the worst aspects of human nature (1974: 123). However, the view that democracy should be taken seriously in no way suggests that there is any preferable form of government on the horizon to representative democracy. Taking democracy seriously means recognising its flaws and drawbacks as well as its obvious merits. It means recognising that in the US reapportionment cases examined in Chapter 4, it was the concerted political acti...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Abbreviations and German Terms
• Introduction
• 1 Taking Democracy Seriously
• 2 Mediating the Values of the Civic Space
• 3 People of Different Views
• 4 A Changing Concept of Equality
• 5 The Democracy Training Programme
• 6 Karlsruhe and the People
• Conclusion
• Index