Thursday Thinkpiece: Ginsburg on the Future of National Constitutions

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THE FUTURE OF NATIONAL CONSTITUTIONS IN A GLOBAL WORLD
Tom Ginsburg
in The Law of the Future and the Future of Law, S. Muller, S. Zouridis, M. Frishman & L. Kistemaker eds., Oslo: Torkel Opsahl Academic EPublisher, 2011

Excerpt: pages 148 – 151

The Future

Where will constitutions go in the next century? The fact that constitutions reflect not only the social and political circumstances of both their immediate drafting environment, but also the broader trends of their era, means that global developments will have an increasing effect.

It is clear that the trend toward international and transnational sources of constitutional norms will continue. We will see transnational mobilisation of interest groups, whether they are for human rights, abortion or freedom of establishment. Sometimes outsiders will have particular interests in, and knowledge of, the local context. In other instances, however, they will be more focused on particular issues (rather than places) and will be seeking to advance a particular policy agenda in as many contexts as possible. Once mobilised in one context, an interest group can now easily transverse the shrinking borders among states to lobby in other countries. The focus of Western Christian groups, unable to win on abortion policy or anti-gay policies in their home jurisdictions, on African constitutional drafting exercises is a harbinger of future trends. National constitutions will become international policy battlegrounds.

The global security regime will also have an impact in several ways. The challenges of ̳failed states‘ will lead to continued efforts at state reconstruction. In recent years, we have seen that constitutional reconstruction is an important part of this effort, as outside powers seek to ensure a legal basis for the state‘s internal governance structure. So there will be external pressure to produce constitutions, and external involvement in the same. But this external pressure will also extend to ongoing monitoring of the implementation of certain features of the constitution. External enforcement efforts may help to ensure that such constitutions are made efficacious, at least in the areas of interest to foreigners.

Perhaps this means that future constitutions will more accurately describe the political practice of their contexts, though this relationship has always been loose at best. Even at the present juncture, we observe many countries with formally democratic institutions, embodied in a constitution, whose informal constitution operates completely differently. Yet the formal structures do constrain in ways that do not clearly track the line between democracy and dictatorship. Vladimir Putin chose to step down after his second term and take the revamped office of prime minister, while other leaders choose to amend or even tear up the constitution. The Chinese leadership takes constitutional change seriously, using the document to confirm policy movements that have already been undertaken. In short, there is a significant creativity to new forms of authoritarian pluralism, which may be embodied in constitutions. So a global constitutional era need hardly be a democratic one.

Another important factor that is likely to have an impact is that the rate of social and technological change is likely to remain high and continue to accelerate. This is likely to put great pressure on constitutional stability. Stability is at the core of the very idea of a constitution, and yet it is likely to be undercut in periods of rapid change. Rules endure as long as they are useful, and so naturally they bear some relation with the underlying conditions of society. If society changes dramatically, the rules may become brittle and out of date, leading to pressure to adopt new rules through constitutional amendment or replacement.

This observation has normative implications for constitutional design. Constitutions adjust through two primary mechanisms: formal amendment and informal interpretation. These two are substitutes for each other: as the threshold for amendment rises, courts become more empowered, and vice versa. If demand for adjustment is going to increase, it might be advisable to draft constitutions that have more flexible amendment provisions so as to allow more formal change, which usually has the advantage of involving democratic processes. We do not know if the trend toward simpler procedures is actually in operation, owing to methodological difficulties of measuring cross-nationally the ease of constitutional amendment. The implication, however, would be toward a model more like parliamentary sovereignty, in which constitutional rules are passed in a manner that looks a lot more like passing statutes than constitutions. Yet we have also observed a historical trend away from pure parliamentary sovereignty, and toward more accountability institutions.

Will the movement toward accountability and transparency continue? It seems as if there are contradictory tendencies in this regard. On the one hand, formal institutional structures of law-making are more transparent than ever before, thanks in part to technological developments. Yet some commentators have noted that there is an expanding zone of legal ‘grey holes’ in which the law and its institutions do not reach. The ‘dual state’ noted by Ernst Fraenkel many decades ago seems to be returning in an era of global (counter-) terrorism. The zone of exception has always posed conceptual challenges to constitutional government, and that is likely to continue, even as the zone of ordinary politics is effectively subjected to constitutional constraint. The relative size of these two zones is in part within the control of judges whose job is to define their own jurisdiction and to calibrate the level of scrutiny of government practices. This level rises and falls within countries and across time. It has been argued that judges are structurally unable to discipline the national security apparatus in times of emergency, but that the level of scrutiny increases as the urgency fades. There is evidence on both sides of this question, but in recent years we have observed moments of great deference as well as moments of judicial constraint of executive behaviour in wartime. It is probable that the dynamic here is a long term pattern of calibrating the pendulum, with judicial activism leading to counter-pressures on courts to back off. Either way, the very fact that courts are at the centre of this inquiry is evidence of one of the great trends of recent decades, the judicialisation of public policies. Constitutional discourse is at the centre of this trend, as judges have used constitutional jurisdiction to expand their reach and authority.

Judicialisation has had a number of causes, but is perhaps most directly related to political structure. Courts are becoming more powerful in every jurisdiction and at the international level, but their ultimate level of power is determined by their ability to remain insulated from political authority. When that authority is divided, courts tend to have a greater role; when concentrated they tend to have a lesser role. One must predict that, notwithstanding local instances of de-judicialisation, globalisation will force more and more use of judges as paradigmatic third party dispute resolvers. This is largely structural and so the trend toward the expansion of judicial power will continue. Constitutional adjudication is likely to be a part of this mix; but regardless, one must be bullish on the overall future of law, the theme of this project.

Judiciaries are just one example of a broader trend toward the deployment of technical expertise. We observe parallel developments in such fields as accounting, financial monitoring, and economic policy, in which knowledge and authority are sources of power. Epistemic communities and forms of knowledge are driving forces behind the secular pressures toward independent regulatory agencies, central banks, boards of audits and environmental commissions. These communities tend to communicate internally using informal channels, inaccessible to outsiders to some extent. Yet technocracy always struggles for legitimacy. There are countervailing pressures for democratic control and we will likely observe continued swings of the pendulum between democracy and technocracy for many years to come. These will accelerate as the locus of regulatory power is increasingly transnational, which is seen as presumptively illegitimate by locally entrenched actors.