The Political Origins of the New Constitutionalism

Over the past two decades the world has witnessed an astonishingly rapid transition to what may be called juristocracy. Around the globe, in numerous countries and in several supranational entities, fundamental constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. Most of these polities have a recently adopted constitution or constitutional revision that contains a bill of rights and establishes some form of active judicial review. National high courts and supranational tribunals meanwhile have become increasingly important, even crucial, policy-making bodies. To paraphrase Alexis de Tocqueville’s observation regarding the United States, there is now hardly any moral, political, or public policy controversy in the new constitutionalism world that does not sooner or later become a judicial one. This global trend toward the expansion of the judicial domain is arguably one of the most significant developments in late twentieth and early twenty-first century government.

The global trend toward judicial empowerment through constitutionalization has been accompanied and reinforced by an almost unequivocal endorsement of the notion of constitutionalism and judicial review by scholars, jurists, and activists alike. As Ronald Dworkin—perhaps the most prominent constitutional theorist supportive of the worldwide convergence to constitutionalism— observes, every member of the European Community as well as other “mature democracies” (in Dworkin’s words) subscribe to the view that democracy must protect itself against the tyranny of majority rule through constitutionalization and judicial review. Even countries such as Britain, New Zealand, Canada, and Israel—described until recently as bastions of Westminster-style parliamentary sovereignty—have embarked upon a comprehensive constitutional overhaul aimed at introducing principles of constitutional supremacy into their respective political systems.

What are the political origins of the sweeping convergence to constitutionalism and judicial review? The constitutionalization of rights and the corresponding establishment of judicial review are widely perceived as power-diffusing measures commonly associated with liberal or egalitarian values. As a result, studies of the political origins of the worldwide convergence to constitutionalism tend to portray it as the reflection of modern democracies’ post-World War II coming to terms with, and deep commitment to, a “thick” notion of democracy (i.e. the notion that democracy has more to it than a mere adherence to the principle of majority rule), as a result of progressive social change or liberalizing political transformation, or simply as a reflection of their political leaders’ benevolent devotion to an elevated vision of human rights. Unfortunately, however, most of the assumptions regarding the predominantly benign and progressive origins of constitutionalization remain for the most part untested and abstract.

This paper attempts to address this scholastic lacuna. It is divided into three parts. First, I survey and critically assess the main existing theories of constitutional transformation that purport to explain the causal mechanisms behind the constitutional entrenchment of rights and the establishment of judicial review. Second, I suggest that the trend toward constitutionalization is hardly driven by politicians’ genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, influential economic stakeholders, and judicial leaders. These three self-interested groups tend to form coalitions of legal innovation to determine the timing, extent, and nature of constitutional reforms. The trend towards judicial empowerment is a means by which pre-existing and ongoing socio-political struggles in a particular polity are carried out. I conclude by suggesting that the global trend toward juristocracy is part of a broader process, whereby political and economic elites, while they profess support for democracy, attempt to insulate policymaking from the vicissitudes of democratic politics.