OXFORD CONSTITUTIONAL THEORY

Series Editors:

Martin Loughlin, John P.McCormick, and Neil Walker

The CosmopolitanConstitution

OXFORD CONSTITUTIONAL THEORY

Series Editors:

Martin Loughlin, John P.McCormick, and Neil Walker

Oxford Constitutional Theory hasrapidly established itself as theprimary point of reference fortheoretical reflections on thegrowing interest in constitutions andconstitutional law in domestic,regional and global contexts. Themajority of the works published inthe series are monographs thatadvance new understandings of

their subject. But the series aims toprovide a forum for furtherinnovation in the field by alsoincluding well-conceived editedcollections that bring a variety ofperspectives and disciplinaryapproaches to bear on specificthemes in constitutional thought andby publishing English translationsof leading monographs inconstitutional theory that haveoriginally been written in languagesother than English.

ALSO AVAILABLE IN THE SERIES

The Twilight of

Constitutionalism?Edited by Petra Dobner and Martin

Loughlin

Beyond ConstitutionalismThe Pluralist Structure of

Postnational LawNico Krisch

The Constitutional StateN. W. Barber

Sovereigntys PromiseThe State as Fiduciary Evan Fox-

Decent

Constitutional FragmentsSocietal Constitutionalism and

GlobalizationGunther Teubner

Constitutional ReferendumsThe Theory and Practice of

Republican DeliberationStephen Tierney

Constituting Economic and SocialRights

Katharine G. Young

The Global Model ofConstitutional Rights

Kai Mller

The Three BranchesA Comparative Model of

Separation of PowersChristoph Mllers

After Public LawEdited by Cormac Mac Amhlaigh,

Claudio Michelon, and Neil Walker

The Cosmopolitan StateH. Patrick Glenn

Fault Lines of GlobalizationLegal Order and the Politics of A-

LegalityHans Lindahl

Constitutional Courts andDeliberation DemocracyConrado Hbner Mendes

The Structure of PluralismOn the Authority of Associations

Vctor M. Muiz-Fraticelli

The CosmopolitanConstitution

Alexander Somek

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For George and Paul Horacek

Preface

This is a book on constitutionalism.It explores its rise andtransformation up to the point atwhich it becomes suddenlyconfronted with its potentialdemise. Mainstream discoursenotoriously ignores this dialecticalturn. It is blinded by the belief thatthe one remaining obstacle to humanprogress is the nation state. Thisbook, by contrast, offers acautionary tale. Against the strongcurrent of contemporary scholarship

that celebrates the consummation ofconstitutionalism at a global scale,the book reckons with the twilightof idols. Greaterconstitutionalization ofsupranational or even internationallaw threatens to robconstitutionalism of its politicalcore. This can only be avoided byconceiving of the cosmopolitanconstitution as a nationalconstitution that submits itsoperation to the supervision ofinternational peer institutions. Three distinguished institutionsmade the work on this bookpossible: the University of Iowa

College of Law, the Berlin Institutefor Advanced Studies, andPrinceton University. I am the lucky beneficiary of theveritable dream team providingstewardship for my homeinstitution: Dean Gail Agrawal,whose energy and charisma areunmatched, and Associate DeansEric Andersen and Todd Pettys,whose dedication to theircommunity is very humbling forordinary citizens like me. Had it notbeen for their unflagging support, Iwould have never been able tofinish this book. During the academic year of

200708 the Berlin Institute forAdvanced Studies provided mewith a perfect research environmentby awarding me a fellowship. Itallowed me to participate in afocus group on the constitutionbeyond the nation state. Withgratitude I remember the countlessconversations I had with the othermembers of this group: PetraDobner, Dieter Grimm, BogdanIancu, Martin Loughlin, FritzScharpf, Gunther Teubner, andRainer Wahl. We met at least oncea week in order to give each other areally hard time: No pain, no gain.Giving each other a hard time is

also what Mattias Kumm and I werefrequently up to whenever we metin Berlins Caf Einstein during thatyear. While the experience in Berlinhelped me to recalibrate myproject, a fellowship in the Lawand Public Policy Program ofPrinceton University (201213)finally allowed me to writeeverything down. Indeed, teaching aFreshman Seminar at Princeton inthe fall of 2012 reassured me of thesoundness of the overallconception. Two of my students,Oren Fliegelman and Martin Page,subsequently became my research

assistants and helped me with thesources for Chapter One. Luckily,Martin Loughlin turned out to beone of my fellow fellows again. Itmay well be that out of fear of hisstern supervision I was able tofinish the book rather quickly. The Law and Public PolicyProgram is rightly reputed to be atrue intellectual power house. Itwould not be what it is if it werenot for the leadership provided byKim Scheppele and Leslie Gerwinand the dedicated work by JudiRifkin and Jennifer Bolton. While Iwas at Princeton, other peoplejoined me in thinking about

constitutional issues, among them,in particular, ChristopherEisgruber, Antonio Estella deNoriega, William Ewald, LisaMiller, Mirjam Knkler, Jan-Werner Mller, and Yaniv Roznai. Last but not least I would like tothank Raechel Bimmerle forexcellent editorial work andmeticulous proofreading. Asalways, I am grateful to JohnBergstrom for being the dependableand capable librarian that he is. My dear wife was willing to putup with the upheaval anddisruptions involved in the nomadiclife of a scholar. Her tolerance of

my restlessness is only exceeded byher recognition of my immodestambition to join a conversation thatextends as far back as to antiquity. A great deal of my thinking onconstitutionalism went intopreparatory essays that did notbecome part of this book. I wouldlike to thank, in particular, the oneand only Peer Zumbansen forproviding me with the opportunityto publish a number of exploratoryessays in the journal ofTransnational Legal Theory. My greatest personal debt is tomy dear friend George Horacek andto his son Paul. I have known

George for 47 years. We have beenfriends since our first day ofelementary school. Over the lastfew years, he and Paul haveprovided my wife and me with ahome in Vienna during oursemiannual visits. They have donemuch more for us than one couldever reasonably expect from afriend. It goes far beyond whatmight be even considered the call offamily duty. Dedicating this book tothem is a modest attempt atexpressing my gratitude.

Alexander Somek

Contents

Introduction: Constitutionalism 3.0 The Law of a Free People Powers The Ideal and the Real, the

Part and the Whole Judicial Review: Three

Positions The Essence of Constitutional

Adjudication Superlegality as Legality With

a Trump Card The Turn to Human Dignity

and Human Rights Constitutionalism as a Project

of Emancipation The More General Meaning of

Human Dignity Positive Obligations, Third-

Party Effect, and Institutions The Striking Irrelevance of the

Counter-MajoritarianDifficulty

The New Essence ofConstitutional Adjudication

From Human Rights to PeerReview

The Margin of Appreciation From the Social Compact to

the Abstention fromResistance

Political ConstitutionalismRedux

The Brave New World ofExigencies

Beyond Emancipation:Toward AuthoritarianLiberalism

The Two Faces of theCosmopolitan Constitution

The Political Face Virtual Representation Being Represented by Not

Being There The Darling Dogma

The Internal Ambivalence Conventions in Lieu of

Judgment Responsiveness The Question of the State1. One Point Zero: Powers The Constitution as Law The Radical Pluralism of the

Mixed Constitution The Ancient Constitution The Trouble With Absolute

Prerogative Protoconstitutionalism: The

Divide BetweenSovereignty and Law

The Fateful Antinomy

From The Ancient Constitutionto the Rights of Men

Checks and Balances: MoreThan PoliticalConstitutionalism

Judicial Review Qua ProxyResistance

Federalism Constitutional Theory and the

Problem of Interpretation Powers Determining Powers The Unruly Nature of Legal

Powers Rationality What a Constitution is For

A Note on the People Early Epiphanies of 2.0 and

3.02. Two Point Zero: Recognition Comprehensiveness From Antinomy to Paradox Constitution as Recognition The Somewhat Surprising

Disappearance of theCounter-majoritarianDifficulty

Kelsens Court Heterogeneous Chuncks of

Power The Counterconstitution The Radiating Effect

Effects of the Value Order The Question is, of Course,

More Effective than What? Interference and Elaboration The Demise of Constitutional

Interpretation The New Conception of

Superlegality Proportionality and Equality Pre-Constitutional

Superlegality The Elaboration of Rights Elaboration as Interference The Backwards-Looking Take

on Elaboration The Institutional Vision

Not Just Negative Liberty Suhr on Social Freedom Adjudication as a Practice A Practice of Self-

determination Conclusion3. Dignity and Emancipation One Obvious Obstacle and

Three Intuitions A Sociological Reconstruction

of this Obstacle The Puzzle of Dignity in its

Accommodating Form The Other Obstacle (Without

Intuitions) Removing Obstacles, One at a

Time The Predominant Account and

the Teleological Alternative Maritain: Being Person Schiller: Rising Above

Impulses Being Seen and Judged as

Who One Is A Taken-For-Granted

Achievement The Threat of Disruption The Holocaust Shock The Full Package of Human

Rights Reconstructing Dignity From

Beyond Itself

The Private Polity The External State The Latent Political

Dimension of the PrivatePolity

Rational Volition andDissociation

The Freedom to Be Who OneIs

Being in a State of Self-Repair More Than Freedom of Choice Social Freedom and Human

Rights Dignity as Responsibility Conclusion4. Three Point Zero: Transcendence

Peer Review Foreign Precedents European Human Rights

Protection Explaining its Existence Evolutive Interpretation The Margin of Appreciation Culturally Determined Risk

Evaluation Limits to Supranational

Authority Pluralisms The Return of Political

Constitutionalism Yielding and Trust

Bourgeois Citizenship Postnational Citizenship More Bourgeois Citizenship The Class That Matters The Changing Horizon of Time Empowering Proportionality Recent Examples From Observing Pedigree to

Governance by Situations Administration Without

Sovereignty Managerial Anarchy Commodification Panglossian Glosses The Demise of the People

Forward with Aristotle andMachiavelli

5. The Two Faces of theCosmopolitan Constitution Core ideas The Darling Dogma Stated The Liberal Interpretation A Genuine Constitutional

Constraint Virtual Representation The Democratic Interpretation The Dogmas True Scandal Respecting National

Democracies Toward a Democratic

Interpretation of Rights

Virtual Representation, Again Neoliberal Slippage Bourgeois Bias Real Cosmopolitan

Citizenship The Significance of the Place:

Stakeholders and SocialFreedom

The Brittleness of SocialFreedom

Money-making and SocialJustice

Detachment and Market Justice Internal Cosmopolitanism Collective Self-determination:

Political and Dependent

The Internal CosmopolitanOutlook

The Catch Civic Interpassivity Good Reasons Wagers of Responsiveness ConclusionIndex

Introduction:Constitutionalism 3.0

Modern constitutionalism is theproject to establish and to constrainpublic power. Law is the meansthereto. As a project, constitutionalismhas undergone two momentoustransformations. Thesetransformations are studied in thisbook by asking a seemingly simplequestion: What is it that accountsfor the constitutions quality to belaw? The final chapter offers aphilosophical account of what is at

stake in these transformations. Itconcerns the emergence of thecosmopolitan constitution. In order to prepare this study,this introduction provides a sketchof three stages in the evolution ofthe constitutional project. It thengoes on to introduce some basicconcepts and ideas.

THE LAW OF A FREE PEOPLE

Constitutionalism 1.0 perceives theconstitution as authored by apeople. A constitution is, in thewords of James Madison, a

charter of powers granted byliberty.1 Liberty, collectively exercised,is the origin of the constitution. Thepeople adopt a constitution freelythrough exercising their constituentpower. They are therebyconstrained, if at all, only by naturallaw.2 The source of theconstitutions authority is not law,however divine it may be, buthuman action, that is, a founding actor a practice commanding respect.3 Liberty, however, is not onlywhat creates a constitution; it isalso what a constitution is about.4The constitution enables a people to

be free by virtue of facilitatingcollective action. Moreover, theconstitution is supposed toguarantee individual liberty. Thisliberty is perceived vis--vispotential encroachments by publicpower. It therefore appears innegative form and is, essentially,freedom from coercive interferenceby the state. As a consequence of thefreedoms guaranteed by theconstitution, a sphere of socialinteraction called civil society canbe sustained.5 It is conceived as thezone where human interaction isfree from state interference.

The constituent power of thepeople is manifested, hence, in afree act undertaken for the sake ofliberty. A constitution representsthe self-constitution of liberty.6 Inorder to secure private liberty,public liberty is exercised in theform of the former, i.e. throughchoices.7 Free choices that aremade in communion with others areepitomized by contracts. Theauthority of the constitution istherefore most convenientlyexplained through the lens of asocial compact.8 Indeed, in thewake of the American Revolutionsome publicists repeatedly

emphasized that what had beenconcluded in the former colonieswere realand not merely fictiveor hypotheticalsocial contracts.9The procedures of making aconstitution followed an intuitivelydemocratic pattern, without,however, observing alreadyconstituted procedures. Forexample, the American colonistsused a pre-existing system ofcommittees of correspondence inorder to debate questions ofconstitutional concern.10

POWERS

A constitution is a charter ofpowers. Indeed, powers are whatconstitutions were originallycomposed of.11 These can be eitherproperly understood legal powers,such as a power to concludeinternational agreements, orpermissions to take action backedup by coercive force. That a constitution is made ofpowers is not a trivial point. Theunderlying idea is that governmentdoes not precede the constitution. Itis not party to the social compact.12It is trusted by the people and hasonly duties. Likewise, the

constitution is not a bargain amongdifferent groups. It is, ideally,authorized by each and everyindividual. As a legal instrument, theconstitution establishes limitedpowers. Sovereignty is not anelement of the constitutionalsystem.13 Owing to their verylimitedness, separated powersnecessitate mutually beneficialcooperation and guaranteeindividual liberty by forestallinglarge concentrations of power inone hand.14 Neither the benefits ofcooperation nor the preservation ofliberty would be achievable

without observing the limits ofpowers that are laid down in theconstitution. It is essential,therefore, that the constitution beobserved as law.15 One way of giving it effect is tointroduce periodic reviews ofconstitutional practice. At the endof such a review, the reviewingbodyfor example, a council ofcensors16may want to proposeamendments in order to preventfuture transgressions. Since theconstitution is the work of thepeople, the people should speakwhen it comes to adjudicatingquestions of constitutional law.

They or their representatives shoulddecide on these amendments. The founders of the Americanrepublic famously dismissed thesevarious procedures because theseprocedures would put the fox incharge of the henhouse.17 Madisonsuspected that a council of censorswould be composed of the verypoliticians whose deeds it wouldhave to adjudicate in constitutionalterms. Instead, he favored thesystem of checks and balances. Such a system inherits from themixed constitution the idea of amutual balance among forces. At thesame time, these forces are stripped

of their overt association with thedifferent virtues of constituentgroups.18 They are merelyunderstood to be functionallyspecified aspects of sovereignty.Due to their limitedness they evenamount to its negation. Limitedpowers are finite instantiations of apower that is essentially self-limiting. This finiteness is theopposite of sovereignty, whichthereby realizes itself through whatit is not.19

THE IDEAL AND THE REAL, THEPART AND THE WHOLE

The system of checks and balancesis based on two uncertainassumptions. The first is that theinterest of the person holding anoffice will coincide with theinterest of the department ofgovernment to which the office islinked. Personal ambition issupposed to drive people to assertthe institutions position within thesystem of separation of powers.20According to the secondassumption, the resultingequilibrium among branches ofgovernment will coincide with thelimits of powers set by the

constitution as law. Conversely,this means that the limits of powersneed to be drawn such that theactual scope of powers thatemerges from the agonisticinteraction among branches willreflect their ideal scope, that is,how they are supposed to be legallydefined. A constitution would beill-conceived if the executivebranch could not be effectivelychecked by other branches, forexample, for want of political cloutcaused by the overall constitutionalcomposition of powers. Such aconstitution would be self-contradictory for it would contain a

discrepancy between the limits ofpowers considered in isolation21and how these limits can berealized through the interactionamong the powers envisaged by theconstitution. This means, however,that the actual normative force ofthe constitutionthat is,normativity that is not merely anempty ought22depends on factorsthat are not constituted by theconstitution as a legal instrument.Such factors are, for example, thestrength of popular support for aPresident, the party system, or therespectability of the judiciary. Theyare, however, not external to the

constitution either, for there wouldbe no actual constitution withoutthem. Put differently, theconstitution as law not onlyestablishes powers but also allowsthese powers to be determined bythe social forces underlying theiractual exercise. Just as sovereignpower can be realizedconstitutionally only by virtue of itsown negation, the ideal parchmentbarriers of powers can have effectonly in the course of real strugglesamong contending forces. The first assumption underlyingthe idea of checks and balances isempirically questionable. There is

no necessary correlation betweenthe interest of the man and theinterests of the constitutional rightsof the place.23 It is quite possiblethat institutions are composed ofpeople whose major interest is tow eaken their influence or whomistakenly trust that the monitoringwill be done by some otherinstitution.24 It is not unheard of thatin some legislatures delegates favorcurbing the power of their owninstitution in order to create roomfor a strong leader to maneuver. The second assumption reveals,as already indicated, an internalconflict within the constitutional

project. There can be no guaranteethat the actual scope of powersemerging from equilibria amongplayers will coincide with what isdemanded by law for each powerseparately. No power has thepower to rise above all others andto put them into their place. Eachhas to struggle for legality fromwithin the system. This is a true predicament.Necessarily, any constitution needsto leave the application of the rulesof the game to the players.Necessarily, the most powerfulplayers will bend the rules in theirfavor. There is a tension between

the elements of the constitution,ideally considered, and the wholeconstitution as effectively realizedin various contexts. Both are law.25The constitution is actuallycomposed of both ideal limits andthe use of checks and balances fortheir realization.26 The legal quarrelover the former is part of the latter.A constitution is not simply acharter of powers, but a charter ofpowers acting upon each other. Not surprisingly, withinconstitutional systems the questionmust arise which of the contendingbranches, at the end of the day, hasto have the power to say what the

constitution means legally. Periodic reviews ofconstitutional practice by somedistinguished extraordinary bodydid not become part ofconstitutionalisms legacy.Obviously, checks and balancesdid. Therefore, constitutionalismsembrace of legal form becameembedded into the context of whatis nowadays called politicalconstitutionalism. The idea of thelatter is that the constitution isnothing outside the practice ofparticipants in the politicalsystem.27 Ideal legal constraints arechimerical.28 Such a political

constitutionalism, however,entertains a rather crude view. Itmerely says that deep down theconstitution is a factum, not a norm.But this misses the point. Rather,the constitution allows the factualcircumstances of its realization todetermine the scope of powers thatare defined prior to thesecircumstances. This dialecticescapes this type of politicalconstitutionalism. This basic normative tension isnonetheless troubling for the projectof constraining power through law.The question must arise, therefore,whether one branch of government

is particularly well positionedwhen it comes to saying what thelaw is. This branch would be agood candidate to be the supremeexpositor of constitutional law. Unsurprisingly, the eyes come torest on the judiciary. With regard tothe judicial application of theconstitution it needs to be clarifiedin which respect the constitution islaw, and for whom.

JUDICIAL REVIEW: THREEPOSITIONS

Initially, in the aftermath of the

American Revolution, some authorstook the constitution to be law forthe legislature only. Theconstitution was supposed to be abinding legal instrument, but notenforceable vis--vis the bodyrepresenting the popular sovereign.The judiciary had no role inenforcing the constitution. Thisposition was most clearlysummarized, although not defended,by James Iredell:29

The great argument is, that though theAssembly have not a right to violate theconstitution, yet if they in fact do so, the onlyremedy is, either by a humble petition thatthe law may be repealed, or a universalresistance of the people. But that in the

meantime, their act, whatever it is, is to beobeyed as a law; for the judicial power is notto presume to question the power of an actof Assembly.

According to another view, judicialreview of legislation was deemedto be permissible if exercised onlyvicariously on behalf of the peopleexercising their right of resistance.Since the latter would be exercisedonly in cases of egregiousviolations of the constitutionalorder, judicial review was alsosupposed to be limited to cases ofclear unconstitutionality, that is, theconcededly unconstitutional act.30 What historically prevailed,

however, was an understanding thatmerged the constitution as a speciesof law with its overall genus. Thismeant in practice that the principleaccording to which it isemphatically the province and dutyof the judicial department to saywhat the law is31 became extendedto the constitution, too. More fullydeveloped, this understandingsupports the proposition that thereis no other way of asserting thelegality of the constitution than byyielding to the supremacy ofjudicial expositions ofconstitutional law.32 This ideabecame such ordinary wisdom that

the purveyor of specializedconstitutional tribunals, HansKelsen, already took it for grantedthat constitutional adjudication wasthe only way to secure the legalityof ordinary law.33 The elevated position of thejudiciary in matters of constitutionalinterpretation makes it very difficultto imagine judicial self-restrainton any other basis than observingthe proper standards for judicialexposition of law generally. Itwould be odd, in other words, tohave the judiciary determine, bymeans of a run-of-the-millconstruction of legal texts, what the

constitution requires as law andthen to demand that it exercise self-restraint because the detectedunconstitutionality is not obvious inthe eyes of the outside observer. Ifthe legal knowledge of theconstitution is something that thejudiciary is privy to it must be theright and the privilege of thejudiciary to find unconstitutionalityon the basis of legal analysis evenin cases where theunconstitutionality is far fromobvious to any other observer. Alltheories of constitutionalinterpretation, regardless ofwhether they favor or disfavor

judicial self-restraint, need toaddress the predicament that once aconstitutional system embracesjudicial review, the debate ofconstitutional questions becomesinvariably juridified.

THE ESSENCE OF CONSTITUTIONALADJUDICATION

The core legal question that arisesunder constitutionalism 1.0 iswhether a branch of government hasstayed within the confines of itspowers. In the course of a judicialreview of this basic question, not

by accident some version of arationality test comes to play animportant role. Organs of the state abide byconstitutional constraints if they dowhat is within their power. That isthe case so long as what they are upto can be plausibly, which meanscausally, perceived as an exerciseof their respective powers. If thelegislature prohibits the sale ofhandguns with the purpose ofexercising its power to regulateinterstate commerce, it stayswithin its power if there is a causalrelationship between the circulationof guns and commerce among states.

Whether or not this is the casedepends on how the regulation ofinterstate commerce is to beunderstood as an aim. If regulatinginterstate commerce may concernanything that is relevant to the flowof goods within a federal territory,the prohibition on the sale of gunswill pass muster; however, ifregulating interstate commerce iscalibrated to the removal ofobstacles, it will not. Whether therelevant power means one or theother needs to be determined on thebasis of constitutionalinterpretation. The analysis of ameans-ends relationship, however,

is an essential component ofconstitutional adjudication. Thelegislature is treated as a rationalagent. The question is whether ithas pursued the permissible aim(s)for which it has been grantedpowers. If the relationship betweenthe means chosen and the endpursued is too tenuous, the legalanalysis will find that thelegislature did not do what itpurported to do. As is well known, trickyquestions can arise in this context.For example, assuming that thepower to regulate interstatecommerce means that the legislature

may only remove obstacles, what isone to make of a handgun productstandard regulation that is likely toincrease the overall volume of saleswhile harming small producers inone particular region? Has thelegislature really pursued the aim ofregulating interstate commerce, orhas it favored larger nationalindustries? Only a detailedassessment of the facts may helpone to arrive at a clearerperspective. If, at the end of theday, the analysis finds that thelegislature actually merelysupported larger producers, it isthereby established that it did

something for which the constitutionhas not granted it any power. It bears emphasis that what isdecidedly not at stake in this type ofconstitutional analysis is thereasonableness of action. If theregulated matter is rationallyrelated to an objective within thestate organs power to pursue, theorgan may proceed. The impliedpowers doctrine is a naturalconsequence of this link betweenpowers and aims. If the organnecessarily has to do or regulatesomething in order to exercise anexplicit power, it follows that it isinvested with the requisite implied

power. This way of reasoning isdistinct from the application of theproportionality principle, which isat the center of constitutionalism2.0.

SUPERLEGALITY AS LEGALITY WITHA TRUMP CARD

The legality of norms concerns howthey are expected to be compliedwith.34 Adopting Carl Schmittsterminology, one can say thatsuperlegality35 is about howordinary law is supposed to beconsistent with the constitution. It is

important to note that, in the case ofconstitutionalism 1.0, legality andsuperlegality are made of the samematerial. The law of contract, forexample, is replete withpermissions and legal powers.Constitutional law comprises theselfsame types of powers. Theconformity with one and the other isthe same. Legality and superlegalityare carved out of the same wood.One merely trumps the other. It willbe seen below that this changes inthe context of constitutionalism 2.0,where superlegality requiresmeeting a standard for thereasonableness of government

action. Constitutional law is, then,no longer the same as the law thatone encounters in 1.0. In spite of the importance ofactual means-ends relations, thenormativity of superlegalitysupposedly flows from the linkbetween powers and permissibleaims. The identification of the latteris the task of constitutionalinterpretation. Constitutionalism 1.0is thoroughly convinced that theconstitution is a source of law.What the law means is known onthe basis of interpretation.

THE TURN TO HUMAN DIGNITY AND

HUMAN RIGHTS

Constitutionalism 1.0 is far fromobsolete. Indeed, almost withoutinterference by its furthertransformations, it is still in fullbloom in its vintage legal culture,that is, the public law of the UnitedStates. But even where countrieshave made the transition to the nextlevel, elements of constitutionalism1.0for example, the mode ofinterpretation of the scope ofpowersare likely to remain inplace. The transformations ofconstitutionalism, therefore, add to

the complexity of the project. Oneversion becomes grafted upon theother. Constitutionalism 2.0 alters thepicture.36 It is paradigmaticallyembodied in the constitutionalpractice that emerges in Germanyafter the Second World War. Theconstitution is no longer deemed tooriginate from the free choice of apeople. Rather, it originates from anact of reasonable recognitionconcerning the supreme value andauthority of human dignity andhuman rights.37 While the idea thatthe constitution is a choice made insome foundational act is still of

relevance for the organizationalpart of the constitution, fundamentalrights lend expression to the freerecognition of a moral necessity. Anecessity of this type is intrinsic tothe rational will. The connectionbetween what necessitates and whatis necessitated is not mechanical; itis supposedly mediated by insight.38 The first major difference,therefore, betweenconstitutionalism 1.0 andconstitutionalism 2.0 concerns theorigin of constitutional authority.Whereas 1.0 relies on a great storyabout the voluntary realization ofvalues by a particular nation, 2.0 is

about abdicating voluntarism in theface of human dignity, which is thereason for the protection of humanrights.39 It can be argued that thetransition from one to the othermarks a step in the self-determination of constitutionalreason.40 No less a scholar thanCarl Schmitt unearthed thisdiscrepancy between thevoluntarism of the legislative stateand the value commitmentsexpressed in the fundamental rightsof a constitution.41Constitutionalism 2.0 appears todraw the conclusion that followsfrom realizing that the voluntarism

intrinsic to 1.0 is at odds with theuniversal values of freedom,equality, and solidarity on which itclaims to rest. In any event, theemergence of 2.0 cannot beadequately understood withoutreconstructing the shift from libertyto dignity.

CONSTITUTIONALISM AS A PROJECTOF EMANCIPATION

Ordinarily, this shift is intuitivelyassociated with a reaction to theHolocaust. While this is arguablytrue for the German constitution,42 it

is not so easy to sustain this viewfor the Universal Declaration ofHuman Rights. If Moyn is right,there was no widespread Holocaustconsciousness in the immediatepost-war era.43 The substanceassociated with modern humanrightsthat is, the full panoply ofpolitical, civil, and social rightsslowly but surely entered thedomain of constitutional politics inreaction to what were perceived tobe the root causes of the rise ofauthoritarian and totalitariangovernments, namely, economicinsecurity and dependence.44 It isnot unreasonable, hence, to follow

Rensmann45 in tracing theemergence of a human rights-basedconstitution back to FranklinDelano Roosevelts plea for aSecond Bill of Rights. It wouldhave complemented traditionalliberties, which Roosevelt took tobe epitomized by freedom of speechand freedom of worship, withfreedom from fear and freedomfrom want:46 Necessitous men arenot free.47 What emerged from thisbackground was the newlyestablished connection betweendignity and a full package of rights,which is manifest, not least, in the

Universal Declaration.48 Indeed,historically this is consistent withthe various contemporary RomanCatholic teachings relevant to thisstory, not least because theyembraced, however vaguely, avision of the human community thattried to make out a third pathbetween the ruthless individualismof liberalism on the one hand, andthe depersonalizing thrust oftotalitarianism on the other.49 Thusunderstood, human dignity was verymuch associated with the aspirationto be a whole person within acommunity. However, in order to reconstruct

rationally the transition from aconstitutionalism that emphasizesliberty to a constitutionalism thatputs dignity at the center, it isnecessary to perceiveconstitutionalism as a project ofemancipation. Constitutionalism 1.0 is a projectof emancipation from receivedfeudal hierarchy. This is evident notonly in the constitutionalism of theFrench revolution but also in theself-understanding with which thecolonists on the American continentembraced the freedoms allegedlyguaranteed by the ancient Englishconstitution. In both cases,

constitutionalism is, even if withdifferent temporal horizons,50intrinsically linked to overcoming asociety predominated by formalstatus distinction and privilege. Inthe case of the bourgeoisemancipation of constitutionalism1.0, the new realm of equal freedomwas supposed to be located withina market society largely immunefrom state interference.51 Decentralized human cooperationin markets, however, works byvirtue of unintended man-madenecessity. If all surroundingbarbershops offer complementarycoffee, my shop has to offer it too.

This necessity is external in thesense that the opportunities towhich it gives rise do not reflectwhat one wants by virtue of who orwhat one takes oneself to be.52There is no way of living offexploring the contraction of God atthe moment of creation if all thatpeople want is lean food andinexpensive mobile phone plans.Likewise, if others work for less,one has the choice of working forless oneself. If competitorsinnovate, one has the choice toinnovate first. A competitive life isspent engaging in pre-emptivestrikes. If one does not choose what

one must choose, one will go under.The choice is the choice ofnecessity, objectively andsubjectively considered. It is thechoice of and by necessity. The freedom enjoyed in this typeof society is formal. One gets tochoose, and freedom of choice isindifferent to the substance ofchoices. What is more, it is soformal that it is even indifferent toits own choosing. The exercise ofvolition morphs into the flexibleadaptation to shifting circumstance. Human dignity signifieswithoutbeing exhausted by itthereassertion of individual freedom

against its loss in a web ofhorizontal transactions.53Constitutionalism 2.0 endorsesnegative liberty from marketsthrough the pooling of risks. Thenegative liberty from stateinterference is thus complementedwith the negative liberty frominterference by the aggregate effectsof private acts, oras we shall callitthe private polity. In fact, it isthe same negative liberty applied todifferent forms of being who weare, collectively considered. It isthe emancipation of human beingsfrom the collective face of theirprivate nature. The government, by

contrast, represents the public sideof their self.

THE MORE GENERAL MEANING OFHUMAN DIGNITY

It might be objected that while thishistorical nexus is not entirelyimplausible, it nonetheless endorsesa very narrow understanding ofdignity. It seems to reduce thenotion to freedom from want. The objection is mistaken, but inthe right way. The emancipationfrom economic necessity andcommodification is indeed only a

particular application of a broaderidea. Dignity enters the purview ofconstitutionalism with a focus on ageneral pathology of privatefreedom. Nonetheless, even in thisusage dignity already exemplifies amore general idea. People who struggle witheconomic necessity remain formallyfree. They do not lose their freedomof choice. Their choices, however,are driven by their needs and theirfear of losing their livelihood. Theytake on any job they can find. Theyreadily serve any master. They runthrough this world with a servileposture. They do not lead their

lives. Admittedly, they may be ableto get by, but they are notsubstantively free. Whateverconception they may have had ofwhere their lives were heading hasbeen torn apart by theoverwhelming forces of necessity.Theirs are not lives lived in dignity. The link to the more general ideaof dignity is provided by aspirationto stand tall. As the social face offreedom, human dignity is aboutsustaining the appearance of beinghuman toward others. This requiresbeing demonstrably able to pulloneself together. The means theretois action.54 Aside from being more

or less aware of our aims, we arealsoin a morally unpretentiouswaypaying attention to whetherwhat we are choosing is right forus. The standards that we observemay be conventional. But it isimportant that we do not behavelike puppets on a string. We havedignity only if it can be seen that itis we who are pulling ourselvestogether. Human dignity is either lost orseverely damaged whenever thiscapacity is suspended either fromthe outside or the inside. We arethen demonstrably falling apart.Aside from exposure to economic

necessity, this happens on accountof what is our nature in us. Beingovertaken by necessityas isepitomized, for example, by anyform of compulsionconfronts uswith our dependence on a basis thatis stronger than our ability togovern and to conduct ourselves. Itreminds us that our mindedness is abrittle achievement that we have atthe pleasure of something bothintractable and fundamental.55Nature is what makes us possible,and it threatens to disrupt us.56 Italso makes us vulnerable to others.Our rootedness in nature can beturned against us. We can be

brought into a situation where weare helplessly exposed to ourdisruption. Pain and fear exposehumans to their persistentvulnerability to physical reactions.Dignity is lost, then, in the gaze ofthe perpetrators who not only inflictsuffering, but also perceive andenjoy the helplessness of theirvictim. Persons who are screamingand shivering are overtaken byemotional reactions. Theyinvoluntarily do what theperpetrator wants them to do. Theyare turned into pieces of matter. These are more generalimplications of human dignity.

Nonetheless, it is important to viewhuman dignity as intrinsicallyassociated with the whole packageof rights that are characteristic ofconstitutionalism 2.0. Its point is toovercome a constitutionalism thatputs freedom of choice at the centerwith a constitutionalism thatconcerns itself with rising abovethe disruptive effect of our nature.Hence, positive obligations on thepart of the state and the third partyeffect of fundamental rights areintegral parts of the protection ofdignity.57 The potentially enslaving effectsof bourgeois emancipation are not

overcome if people remainalienated from their politicalselves. The importance of this pointmay not be entirely obvious, but itactually explains the ambivalenceof 3.0 vis--vis 2.0.Constitutionalism 3.0 pushes theproject of emancipation beyondnational bounds. If this isaccompanied with de-politicization,as it arguably is, the progress ofemancipation becomes overlainwith regression. This explains why,from the perspective ofemancipation, at its third stageconstitutionalism becomesinternally ambivalent.

POSITIVE OBLIGATIONS, THIRD-PARTY EFFECT, AND INSTITUTIONS

Strangely enough, constitutionalism2.0 emerges and flourishes in acountry that does not recognizesocial rights in its constitution:Germany. But despite the fact thatthe drafters of the Germanconstitution thought it unwise toincorporate promises that weredifficult to keep in a post-warsituation,58 the FederalConstitutional Court developed asophisticated jurisprudence ofpositive rights.59 Initially, the Courtspelt out the actively protective

function of the state not withouttrepidation. The fundamental rightscontained in the constitution weresaid to be not only negative rights,but also objective principles.60 Itwas not clear under whichconditions such an objectiveprinciple would give rise to apositive right. Objective principlescould mean a variety of things. Byfar the most important innovation tofollow, however, was the duty toprotect, which introduced de factothe third party effect of humanrights.61 Even more importantly, the Courtsoon became acutely aware of the

institutional nature of fundamentalrights.62 In this context, formalfreedom is given substance. Itinvolves a combination of twoideas. First, the Court recognizesthat the exercise of fundamentalrights creates certain public goods,which are also objective principlesguaranteed by the constitution. Fromthis it follows that the legislature isunder an obligation to sustain theinstitutional conditions under whichthese goods can be brought about.63Second, the ominous problem ofbalancing the fundamental rightsof individuals and other interestscan be given guidance against the

overall institutional background.Individual fundamental rights attaintheir significance and weight withan eye toward how individualscontribute to the germination ofthese goods. It is not byhappenstance, and also not withempty rhetoric, that the GermanCourt proclaims that the freedomguaranteed by the Basic Law is notthat of an isolated and self-regarding individual but rather thatof a person related to and bound bythe community.64 In fact, it ispossible to reconstruct theinstitutional framework ofindividual freedom from the

perspective of relationships ofsocial freedom in which the pursuitof the aims of one person ismutually instrumental for the pursuitof the aims of another person. It isin these institutional settings thatfreedom is emancipated fromserving the end self-preservation,broadly understood. The German constitution, theBasic Law, puts dignity at the top.Article 1 section 1 of the BasicLaw states that human dignity isinviolable. The statement isfollowed by the pledge in section 2that the German people thereforeacknowledge inviolable and

inalienable human rights as thebasis of every community, of peaceand of justice in the world. Section3 ordains that the rights that followshall be directly binding on allthree branches of government. Theoverall composition of Article 1suggests that human dignity wasbelieved to be the foundation of allfundamental rights without being aright itself.65 In spite of the overallstructure of the constitutionaldocument, the Court has turnedhuman dignity into a separatefundamental right. The result isthreefold. First, theparticularization of dignity, which

was supposed to be the universalaspiration of the constitution,submerges the nexus with a revisedproject of emancipation. The Bill ofRights loses its organizing centerwhen human dignity becomes one ofthe elements for which it was toprovide orientation. Second, themeaning of dignity becomesidentified with judicial formulaethat are used to ascertain violationsof dignity. Of essential relevancebecomes the question of whetherpeople have been treated as meremeans. Third, dignity becomesdeflated and slightly decomposed ina curious case law that is a

composite of casuistry and ratheroverdrawn deontological claims.66

THE STRIKING IRRELEVANCE OFTHE COUNTER-MAJORITARIAN

DIFFICULTY

If there is one phenomenon thatbestows intellectual salience onconstitutionalism 1.0, it is thepersistent debate over thelegitimacy of judicial review oflegislation.67 The core question iswhether the intra-constitutionalrepresentation of pre-constitutionalsovereign authority in thelegislature should serve as the

watchman of the constitution orwhether the judicial departmentshould play this role because it isgenerally well equipped to saywhat the law is. In all fairness, thisquestion may not admit of aconclusive answer. The core relevance of thequestion of judicial review toconstitutionalism 1.0 makes it allthe more surprising that it more orless disappears on the next level. Itis no longer relevant. Theexplanation lies in a profoundalteration of the constituent power.It shifts from activity to receptivity.With regard to human rights, the

constitution becomes a self-denyingordinance on the part of thesovereign. The people recognizethat their hands were already tiedbefore they even entered the scene.This recognition replaces thecounter-majoritarian (Why shouldjudges have the power to overridedemocratic majorities?) with asuper-majoritarian difficulty. Human rights have to berecognized by all peoples. Theiradoption within a constitution is notan act of choice but the fulfillmentof a moral duty. Human rights arenot at the disposal of a people. Afortiori, the majority represented in

parliament cannot have a choiceover them either. Why should evena super-majority be given thepower to revoke what requiresrecognition owed to intrinsic value?This is the question that led Schmittto the conclusion68 that the partcontaining the fundamental rights ofthe Weimar constitution isessentially different from theorganizational constitution of thelegislative state.69 Within a humanrights-based constitution, thelegislature can no longer claim tobe the intra-constitutionalrepresentation of the pre-constitutional sovereign since the

sovereign does not exist as acollective body, however elusive itmay be, but only as an act ofrecognition that transforms theconstitution into a carrier ofmorally compelling demands. Theconstituent power is passive, notactive. Hence, it cannot beadequately represented by thebranch of government that is mostsimilar to a constitutionalconvention or by other forms inwhich the people act as a corporatebody. Consequently, the legislaturedrops out of the picture drawn ofthe counter-majoritarian difficulty.

This leaves us with the judiciary.Interestingly, the role of thejudiciary changes too, since underthe precepts of constitutionalism 2.0the constitution no longer is a set ofpowers acting upon one another.Rather, it comprises a set ofprogrammatic values that need to beobserved in the pursuit of anypolitical goal. The judiciarybecomes a censorial body thatwatches over the implementation ofthe constitution, understood as theultimate final program of politics.This is the core idea of the valueorder:70

The system of values, which centres on thedignity of the freely developing person withinsociety, must be seen as fundamental to allareas of law.

This value system, which centresupon dignity of the humanpersonality developing freelywithin the social community, mustbe looked upon as a fundamentalconstitutional yardstick formeasuring and assessing all actionsin the areas of legislation, publicadministration, and adjudication.The legislature no longer has aprivileged position in such aconstitutional system. It is one agentamong several others that are

confronted with the demand ofeither doing more or less71 whenthey create a legal order in whichdignity and the free development ofpersonality are to be givenactuality.

THE NEW ESSENCE OFCONSTITUTIONAL ADJUDICATION

The constitution ofconstitutionalism 2.0 isontologically different from itsprecursor. It is not only composedof powers whose limits are set byrules susceptible to interpretive

elaboration. The constitution is nota side-constraint on the pursuit ofvarious objectives. Rather, theconstitution sets out the principlesthat the polity is supposed to buildinto its legal system. Theconstitution is, therefore, not a normexternal to the pursuit of whichevergoal. It is integral to the pursuit ofany political aim. The constitution is the ultimateprogram of politics. Sound action isrequired for its actualization. Thecore of the constitution is, therefore,composed of standards for theassessment of the rationality andreasonableness of any government

action against the normativebackground constituted by the valueorder. This order is supposed to beone coherent whole. While humandignity is at the center, all rights areunderstood to be specifications offreedom and equality.72 The text of the constitution is ofsubordinate relevance. Theapplication of the constitution is notbased upon an interpretation.73 Thetrue seat of constitutional authorityis a constrained judicialconversation that revolves aroundtwo principles: proportionality andreverse proportionality. Therecurring questions are whether

government action has been tooi ntr us i v e vis--vis fundamentalrights or not sufficiently protectiveof them. Constitutionalism 1.0 is based onthe understanding that law requiresoutward conformity with legalnorms. Law imposes externalconstraints. It is a system oflegality. Constitutionalism 2.0, bycontrast, goes beyond demandingobservance of jurisdictional orbehavioral space. The constitutionestablishes internal constraints, forit supplies the semantics of aconstrained conversation74 over therationality and reasonableness of

government action. It is no longerthe case that the legal power toregulate comes first while therationality test is merely a mode toascertain whether the limits set forthis power have been observed; thepower to regulate is derivative ofsuccessfully climbing the obstaclesposed by the grammar ofjustification. In order to have ashorthand expression for thistransformation, it can be said thatproportionality is taking the placeof the former version ofsuperlegality.

FROM HUMAN RIGHTS TO PEER

REVIEW

Constitutionalism 2.0 is based uponthe recognition of human rights. Butit still presupposes sovereignpeoples. This leaves constitutionalauthority in a remarkable limbo.While human rights are supposedlysuperior to sovereign authority,which is indeed forced to relinquishits voluntarism, they also requiresovereign authority for theirarticulation and realization. This relationship of simultaneoussuperiority and dependence is ofenormous import. First, it means

that any institution wielding publicauthority needs to be as good as anyother in the face of human rights.Second, whether the institutionmeets the relevant standard can onlyby ascertained by heeding whatpeer institutions are doing. Humanrights depend for their articulationand realization on public authorityeven though they also transcend anyinstantiation of it. Thetranscendence of particularity canbe real only in horizontal self-relativization. There is no otherway. Sovereignty serves humanrights through its own abdication.Authority says: I am one among

others. In order to find out whether Ilive up to my standards, I will lookaround and see what my peers aredoing. This marks the transition toconstitutionalism 3.0. Nationalpolities retain final authorityprovided that they committhemselves to human rights. Owingto this commitment, the finalauthority needs to be earned byexplaining oneself with an eyetoward how members of the peergroup behave. This is the practicalimplication of the simultaneousretention and abdication ofsovereign authority in the field of

human rights. As the discussionover the use of foreign precedenti n American constitutional lawreveals, this tension cannot beintegrated into the mindset ofconstitutionalism 1.0. According to1.0, the constitution is all about us,and not about them.75 The truth,however, is that with the transitionto constitutionalism 3.0, the questfor the adequate protection ofhuman rights is conducted withininformal or formal systems of peerreview. The European Convention onHuman Rights established the mostsuccessful formal system.76 In many

respects, the notion of peer reviewmost adequately captures its spirit.First, the judges deciding cases onpanels of various sizes are from theparticipating states.77 Second, theevolutive interpretation given tovarious provisions of theconvention pays attention to anemerging convergence, in particularwhen it comes to determining howmuch leeway is left to a MemberState within the so-called marginof appreciation.78 Third, theauthority granted to the EuropeanCourt of Human Rights to find aviolation renders the system morehierarchical than it truly is.79 One

would expect not only that thefindings by the Court are final butalso that they establish bindingauthority for whichever countryhappens to participate in the system.But matters are in fact messier thanthey appear on the pages ofinternational instruments. In certaininstances, the participating states donot comply either because thecountries regard their ownconstitutional essentials affected orbecause they find that the EuropeanCourt has acted ultra vires in acase when an evolutiveinterpretation has given rise to anall too surprising result.80

This reflects the enduringrelevance of self-relativizingsovereignty. Any site of publicauthority81 has to respect humanrights. Arguably, with the horizontaleffect of rights, this may be alsotrue of sites of private authority.Each has equal authority to giveeffect to its mandate. The effort toreconcile potentially conflictingpeer authorities within informal orformal processes of review iscommonly called constitutionalpluralism.82

THE MARGIN OF APPRECIATION

Pluralism is the consequence of themutual recognition of finalauthority.83 Each site of authorityhas the final say. The result of thisstance is a growing potential forconflict. In order to avoid itsoccurrence each yields to theauthority of the other so long as84this other does not invade thatjurisdictional space where eachdecides that yielding must come toan end. Germany yields to theEuropean Union with regard to theprotection of fundamental rights solong as the European Union retainsa standard of protection that is

equivalent to its own. Intriguingly, each participant inan international peer system retainsfinal authority on the question ofwhat standard needs to be sustainedby others. Legitimacy is earned bycomparing oneself with others, butnobody is superior to anyone else.Hence, pluralism is not at allindicative of the emergence of apost-sovereign world. Constitutional pluralism has beenimplanted into the conventionsystem already in the form of thedoctrine of the margin ofappreciation.85 In its strongsense,86 it reflects considerations of

institutional competence in humanrights law concerning the conditionsunder which the internationaltribunal yields to the judgment ofnational institutions with respect toassessing the significance of publicinterests and the necessity ofmeasures to secure them. Thedoctrine is based on the idea thatnational authorities are betterpositioned to strike the balancebetween individual rights and thecommon good since they are indirect and continuous contact withthe vital forces of their countries.87That the vital forces could be evilforces does not enter the picture as

long as the societies continue to bedemocratic.

FROM THE SOCIAL COMPACT TOTHE ABSTENTION FROM

RESISTANCE

The structural understanding of themargin of appreciation offers asolution to the situation of pluralismbefore it even arises. Basically, itrests on the same gesture of yieldingto the authority of another so longas this other respects a thresholdlevel of constitutional decency. Yielding so long as is howauthority is generally conceived of

under constitutionalism 3.0. Thereis no reason not to view evenindividual conduct as governed bythe same principle. Individualsyield to the demands of whoeverclaims to have authority to directthem so long as the conditionswarranting resistance are not met.This is the basic relationship toauthority that is implicit inconstitutionalism 3.0. Not byaccident, it is homologous tofreedom of conscience. Individualsor sites of authority yield towhoever wields de facto authorityunless their conscience (or theirunderstanding of their own law)

warrants defiance. Legitimateauthority is derivative of theabsence of conscientious objection. There is nothing beyondconscience. It has final authority.Only conscience can tell whetherthe call of conscience has to befollowed. Pluralism, designedconsistently, does not end at thethreshold of public authority. At theend of the day, all jurisdictionalauthority devolves to whoeverbelieves to be the conscience ofhumanity. This could be anyone.And this anyone has to constitutehim or herself as that voice.88 While constitutionalism 1.0

explained the constitution on thebasis of an analogy to the socialcontract, constitutionalism 3.0 isconsistently anarchical. There areno promises, only variousarrangements of conditionalyielding. The fabric of society isnot composed of agreements butwoven of concurrentandconcurrently reasonableomissions of resistance.Constitutionalism 3.0 isconstitutionalism in its mostindividualistic form.89 While it is taken for granted thateach system that protects humanrights relies on proportionality for

the articulation of normativeconstraints, proportionality nolonger represents the ultimatestandard. The margin ofappreciation continues the chain ofsubstitution that began with theunderstanding of normativity thatputs limited powers at the center.While legally limited powers weredethroned by proportionality, thelatter now becomes subordinate tothe application of a standard ofself-relativization. Whatsupposedly governs yielding is leftin a sufficiently indeterminate stateso as to leave sufficient wiggleroom for adaptation on prudential

grounds.

POLITICAL CONSTITUTIONALISMREDUX

Under conditions of pluralism thereis no final legal resolution tojurisdictional conflicts between andamong different systems. Eachsystem has its own way ofaccommodating the presence ofothers. No meta-law governs theirinteraction. Modern pluralist theory assumes,however, that there is a layer ofshared meanings available in order

to articulate assertions ofjurisdiction.90 For example, a lesscomprehensive system might claimthat it legitimately establishesjurisdiction over certain issuessimply because it is moreresponsive to the moralsensibilities of a residentpopulation. Hence,responsiveness would be oneelement of the semantics with whichvarious systems signal to oneanother why they believe that finalauthority ought to be theirs. Theexistence of this layer of sharedmeanings does not alter the fact thatpluralism is essentially about the

mutual recognition of finalauthority. Each system determinesfor itself whether it meets thestandard set out in the semantics ofmutual engagement.91 In practice this means that in thecourse of pluralist interaction, allparticipants are able to exercise anypower so long as they caneffectively get away with it. Whilethis smacks of the law of thejungle,92 it is obvious that theoverall interaction between andamong national or international orsupranational sites is eventuallyembedded into political constraints.Owing to their existence, each

participant realizes it would beimprudent or unwise to offendothers. They realize that they hadbetter respect what is important toothers and grasp opportunities toavoid conflict by leaving mattersundecided.93 Constitutionalism 3.0is, therefore, witness to the return ofpolitical constitutionalism.Effective constraints emerge notfrom law but from more or lesssubtle equilibria of power. Incontrast to the legally groundedpolitical constitutionalismenvisaged by the system of checksand balances, this politicalconstitutionalism is rather crude.94

The overall constitution of themultilevel system ceases to be lawaltogether. It is a factum, not anorm. Therefore, constitutionalism 3.0is congenial to the pre-modern wayof conceiving constitutionalauthority. According to thisvenerable tradition, the constitutionis supposedly composed not of onepiece but of heterogeneous groups.The art of constitution makingconsists of arranging these forces ina manner that does not riskdisruption of the polity owing to thealienation and revolt of one of thesegroups.95

By comparison with ancientpredecessors the pluralism ofconstitutionalism 3.0 must appear tobe rather faint-hearted. The systemsinvolved are all of the same kind. Inthe case of the EuropeanConvention system, for example,each system is committed to theprotection of fundamental rights. Inthe case of the European Union, inturn, each system is committed todemocracy and the rule of law.They are substantivelyhomogeneous. Supposedly, there isa layer of shared meanings that theyresort to in order to explainthemselves to others.

This tame pluralism is decidedlydifferent from some conceptions ofthe mixed constitution according towhich polities are based on thedifferent temperaments ofcontending groups.96 The differenceof temperaments translates into theexternal interaction between officesthat actually belong to each groupsproper constitution. Ancientpluralism does not exhaust itself inthe mutual ascription of finalauthority. It favors theinstitutionalization of effective vetopowers.

THE BRAVE NEW WORLD OF

EXIGENCIES

That constitutionalism 3.0 is a formof political constitutionalism can beobserved also against the broadersocial context from which itemerges. It is a world in which theremains of constitutionalism 1.0 areincreasingly subject to erosion. Asa result, one arrives at a twofoldpicture. While the world of humanrights protection is pluralisticowing to various forms of formal orinformal peer review, theorganizational part of constitutionallaw is permanently under siege by

the exigencies of practical problemsolving across national borders andvarious layers of an emergingmultilevel system. The pressures of practicalproblem solving, which are mostsalient in combating terrorism orrescuing a common currency, affectthe role of legislature, which tookcenter place in the world ofconstitutionalism 1.0. Nowadays,societies exist under conditions ofpermanent social acceleration.97Not least owing to the influence ofmass media reporting, the publicand politics are under theimpression of being persistently

seized by this or that crisis. Underthese conditions, expeditious andeffective problem solving becomesimperative. Authority is, therefore,systematically inclined to migratet o w a r d transnational fora (ornetworks) of executivegovernance.98 The new allocationof power is occasioned by theimpression of necessity. Theauthority that is constituted de factoceases to be based on a chartercreated by liberty. In its moredisturbing instantiation,constitutionalism 3.0 is theconstitutionalism of necessity. Once repeated and expeditious

problem solving becomes thecategorical imperative ofgovernance, the executive branch islikely to gain power at the expenseof the legislature.99 Officially, thecentral role accorded to thelegislature stays in place. However,in the face of the exigencies ofinterventions and the technicality ofregulation, the legislature needs tocede ground to administrativeprocesses. Legislative delegationsand various avenues of oversightare means to retain the superiorityof the legislature at a symboliclevel. But these are, in fact, meresymbols. While delegation has long

ceased to be convincing as adoctrine, oversight might not beterribly effective owing to a lack ofcapacity on the part of thelegislature to monitor andapprehend even a fraction of whatis done by the administrativebranch.100 The very reasons thatmake delegation reasonable explainwhy oversight is blunt, in particularowing to the legislatures lack ofinformation and expertise.101 The real world ofconstitutionalism 3.0 is the world ofa perplexingly diffuseadministrative state sanssovereignty juxtaposed with a

multilevel system of fundamentalrights protection. Old domesticauthorities persist, not least becausethe national coercive apparatus isindispensible for purposes ofimplementation. It is more cost-effective than private enforcementor security services. Nevertheless,the center of gravity with regard torisk management and crisisintervention shifts to transnationalgovernance structures. As theEuropean sovereign debt crisis hasrevealed, formal legal constraintsare bent in order to accommodatenecessities.102 Elections on thenational level matter inasmuch as

they add public acclaim to one orthe other fait accompli. If the votersdo not deliver reasonable resultsthey are suspected of adhering todangerous right-wing ideology.

BEYOND EMANCIPATION: TOWARDAUTHORITARIAN LIBERALISM

Turning to the factors triggering thisdevelopment, constitutionalism 3.0needs to be set against thebackground of the evolution ofmodern capitalism. If Streeck isright, the post-war development ofthe Western economies has been

witness to a displacement of theoriginal conflict between capitaland labor with a persistent tug-of-war between countries with highpublic debt, on the one hand, andfinancial markets, on the other.103Countries that struggle to restoreprivate credit to their damagedeconomies have to increase theirpublic debt. In order to succeed atthat, they depend on a favorableresponse from those institutions thatactually benefit from theirlargesse.104 Evidently, the locus ofcontrol shifts from politics to theeconomy. The consequences aredisheartening. In order to come out

with a sustainable credit score,countries need to implementausterity programs that signalcredibility to credit markets.Countries seem to have no choice.The affected populations eitherreact with revolt or realize thatthere is nothing left for politics todecide and turn away fromdemocracy. It begins to dawn uponthem that the real constraints ongovernance are economic. They areintrinsic to fostering the publicweal.105 In the end, constitutionalismpersists in a symbolic sphere whereheated debates about court

decisions compensate for the lossof political agency.Constitutionalism 3.0 is mostsalient where fundamental rightsprotection has become pluralizedand fluid. Its major attractors arecases concerning issues such as gaymarriage, transsexuality,headscarves in public settings, orcrucifixes in classrooms. Theseissues are highly morally charged.Economically, they are largelyneutral. Constitutionalism ceases tobe a project of emancipation. Whilethe gaze of members of legalacademia, of various activists,and of more upscale journalism is

directed at court decisions thataddress these moral questions, theremains of constitutionalism 1.0such as the separation of powersare slowly eroding. The receivedallocation of powers becomesflexibly adapted to fit theimperatives of economic crisismanagement. The reactions ofeconomic agents, such as financialmarkets or rating agencies, are ofutmost importance to the design ofeconomic and fiscal policies, butthey do not bear any publicresponsibility. Financial marketsappear to have a predilection forpublic austerity. Consequently,

governments cooperating acrossnational bounds need to ever moretightly tame democratic resistanceagainst retrenchment in order toimplement from above what is goodfor the healthy economy.106 The emerging authoritarianliberalism107 is internal to theliberalism that conceives offreedom as formal freedom ofchoice. States that jointly abstainfrom controlling markets exposethemselves fully to their force. Theyneed to be governed like businessesin order to navigate civil societythrough a sea of unpredictableforces. It is one of the great ironies

in the history of neoliberalism thatHayek firmly believed thateconomic governance can besequestered at the level of privatefirms whereas public authoritywould have to respect the rule oflaw.108 With the currenttransformation of economicliberalism, it turns out that Hayekwas terribly mistaken. In order tosustain private businessesinparticular through a viable bankingsystemany national economyneeds to be managed like abusiness. Economic liberalism ishoist with its own petard. Onceeverything is economic, nothing can

comply with rules becauseeverything requires micro-management.

THE TWO FACES OF THECOSMOPOLITAN CONSTITUTION

It would not be possible to perceiveconstitutionalism 3.0 as continuouswith the overall tradition of modernconstitutionalism if it could not beespoused in terms that put freedom,equality, andmost importantlycollective self-determination attheir center. It is indispensible,therefore, to complement the sketch

of historical transformations with asystematic reconstruction in thecourse of which, paradoxically, anattempt has to be made to reconcileeven the above necessity with aspecific variety of freedom.109 Thisis the task of the final chapter of thisbook. The evolution ofconstitutionalism 3.0 gives birth toa type of constitution that can becalled the cosmopolitanconstitution. It does not designate aconstitution beyond the nationstate, such as the constitution of theEuropean Union, or some form ofsocietal constitutionalism;110

rather, the name seeks to capture theconstitution of the nation statesunder conditions of internationalengagement.111 Intriguingly, the cosmopolitanconstitution is internallyambivalent. This ambivalence is notcaused by some external force thatacts upon it. It arises from within.This lends the cosmopolitanconstitution a janus-facedappearance. Viewed from oneperspective, it is congenial to ourpolitical nature; from another, it isnot. It is possible, therefore, todistinguish between a political anda n administrative face of the

cosmopolitan constitution. The political face of thecosmopolitan constitution accountsfor matters such as peer review andthe yielding to authority so long as.. .authority par provision, as itwere. As we have already seen, thecosmopolitan constitution seversthe authority of human rights fromthe national polity but also dependson the state for their realization.The resolution of this tension is theco-existence of the national spiritof the people within a system ofpluralistic mutual engagement.This is consistent with a certaincosmopolitan understanding of

collective self-determination.

THE POLITICAL FACE

Generally, one is collectively self-determining if one permitsdetermination by an entity other thanoneself to which one nonethelessbelongs. As a citizen, I amcollectively self-determining if Isubmit to the authority of my citizenbody regardless of whether Isupport the prevailing majority ornot. The identification with thebody politic sustains the identity inspite of difference. At any rate, this

is what it means to be politicallyself-determining. The submission tothe authority of ones own folks isnot unconditional. It is dependent onhaving ones rights respected, onthe existence of a relatively fairsystem of representation and,finally, on the sense of sharing aplace with others. It is not inconceivable to arriveat an equivalent concept ofcosmopolitan self-determination.Generally, cosmopolitanism admitsof a number of variations, whichneed not detain us here.112According to a very elementary andn o t at all unappealing

understanding, we arecosmopolitans inasmuch as we areat home in the world. If weconceive of ourselves as beingsinhabiting the world while alsorecognizing that the world iscomposed of a plurality of politicalcommunities, our social existence isno longer mediated by ourmembership in our own polity.Being at home in the world, and notin ones political community, meansto inhabit the world as a foreigner. In order to arrive at a soundunderstanding of cosmopolitan self-determination, it is necessary toidentify the conditions under which

yielding to the law of any polity canbe expressive of ones self-determination as a foreigner. Theseconditions have to guarantee thatany polity is as good as any otherfor anyone even though their lawwill be inevitably marked by theparticularity of national traditions.Arguably, these conditions aresatisfied by, first, a system ofhuman rights protection that meetsthe mark of international peerreview and, second, a strongprotection against discrimination onthe grounds of nationality. If theserequirements are met, non-citizenscan endorse any system as their

own. Their self-determination ismediated by virtual representation,which is but another name forcollective self-determination offoreigners.

VIRTUAL REPRESENTATION

Virtual representation is one of themost notorious concepts of ourpolitical language.113 Ever sinceBurke introduced the concept,114 ithas been suspected of being a fraud.It can be argued, however, that,even though virtual representationwould indeed amount to swindle if

applied vis--vis citizens, it is quiteaccurate in order to describe therelation between foreigners and anational polity. Correctly understood, virtualrepresentation means to berepresented through therepresentation of others (notthrough others as though these weredeputies, this was Burkesmisleading exposition of theidea115). The concept looks at thepolity from a very traditional lens.Societies are made up of differentgroups (descriptions); such astrades, professions, or estates. Inorder to have their interests in a

polity represented, even onlyvirtually, it is sufficient to haverepresentative samples of thesedescriptions participate in thepolitical process. This means thatas long as at least onerepresentative of a group is given avoice, the interests of the group arerepresented. Admittedly, the idea does nothave appeal in a national polity, forit renders the represented entirelymute. But it has great appeal in acontext where it is prima facieunobjectionable that the representeddo indeed remain mute. This is thecontext in which foreigners are

represented. Their representation iseffected whenever it is principallypossible that one citizen mightarticulate their interest. This is thecase, indeed, so long asfundamental rightsin particularpo l i t i c a l rightsare respected.Under this condition, foreigners areself-determining in any nationalpolity by virtue of beingrepresented through therepresentation of citizens. Thismeans that the laws of a nation,such as France, are my laws if bymy I mean it is a polity whoselaws express my identity as aforeigner.

It is important to understand thatcosmopolitan self-determination isnot primarily about having theinterests of outsiders somehowrepresented inside a national polity.It is about the opportunity ofrepresentation that foreigners wouldhave if the polity were theirs. If thisis guaranteed, they are virtualmembers. They are citizens of theworld, and this world is composedof a plurality of national polities towhich they do not belong ascitizens.

BEING REPRESENTED BY NOT BEINGTHERE

This view must invite the objectionthat citizens whose views enjoy thesupport of the majority in their owncountry would be much worse off inanother country where their viewsare of entirely marginalsignificance. But this objectionmisses the point. Any system ofrepresentation expresses therelative strength between andamong different groups. The virtualrepresentation of foreigners throughthe representation of nationals isintact if it is possible to have theirpolitical views and interestspotentially articulated within the

constitutional system. In otherwords, their views, their opinions,or their ideologies, if actuallyrepresented, would count aslegitimate input. As long as thiscondition is met, non-nationals arepresent in a political systemprecisely by virtue of their absence.This is how one is at home in theworld as a foreigner. Foreignersare represented through theconstellation of political forcesprevalent in the relevant country.As stated in the previous section,they are represented throughrepresentation as a whole. A hypothetical example may help

to clarify the point. Spanish socialdemocrats believe that the creationof a stratified system of publiceducation is wrong. They are,therefore, strictly opposed tocreating excellence clusters orany other institution ofmeritocracy. The Germans, on theother hand, are overcome by theidea that the state ought to helpbreed an elite. The view of Spanishsocial democrats does not havemuch support in Germany. The fewpeople who hold it always sufferdefeat. But even if there were noteven one person in Germanyopposed to elite breeding, as soon

as the opposition can be voiced, theSpanish social democrats arevirtually represented. They arepresent by their absence. Indeed,this absence accounts for theplurality of the political world tobegin with. If it disappeared, thecosmopolitan world would indeedbe one. The relation of virtualrepresentation pertains, a fortiori,also to citizens who do not vote.They decide, thereby, to inhabittheir own country as a foreigner. Aslong as their countrys legal systemmeets the condition set out above,they are collectively self-

determining in a cosmopolitan form.This is not necessarily anuncomfortable position to hold.Virtual representation facilitates alegitimate disconnect from apolity.116 The real legal possibility to haveinput in a foreign country formulatesmerely a necessary condition ofvirtual representation. But it is notsufficient. It would be inaccurate tosay that foreigners are also virtuallyrepresented if their interests areunduly discounted. They would betreated as non-existent, not merelyas politically disenfranchised.Hence, their interests could never

be represented through a nationalrepresentation that fails to protectthem against discrimination onnational grounds. The most interesting question ofthe political cosmopolitanconstitution is how this protectionagainst discrimination is to beunderstood. May it be restricted toan equal treatment obligationtoward foreigners, or is it to beextended into a principle that forcesdemocracies to internalize theexternalities that they create forothers?

THE DARLING DOGMA

One of the most reliable satellitesof the cosmopolitan constitution iswhat will be referred to in thisbook as the darling dogma ofbourgeois Europeanists. It is oftencast as an argument aboutexternalities that are supposedlyimposed by one political unit onanother. If Spain decides to ban theconsumption of red wine because ofthe adverse impact that itsconsumption has on laborproductivity, it creates anexternality for Portuguese wineries.They lose a whole national marketfor their product. The point of the

darling dogma is to present arelationship between regulatingactivity and its effect on outsidersas a problem of democraticlegitimacy. The argument says thatit is undemocratic for boundeddemocracies to adopt decisionswhose implementation affectscitizens of other states withoutgiving these citizens a voice.Paradoxically, boundeddemocracies are presented asinherently undemocratic. It does notcome as a surprise that the argumentamounts to an indictment of nationalboundaries. Democracies areallegedly incapable of responding

fully to the needs and interests ofthose outsiders that are affected bytheir decisions.117 What is, however, surprisingabout the argument is that it hasadvanced to a standard of Europeanpolitical correctness in spite of itsobvious flaws. Everyone professesbelief in its purchase even though itrejects its core premise in itsconclusion. Democracies adoptdecisions. This presupposes abounded political unit, forotherwise it would be impossible tocount votes. The number of votesneeds to be finite. Yet, owing totheir very boundedness,

democracies are supposedlyundemocratic. Democracies wouldbe fully democratic only if theytranscended their boundaries andbecame more perfectly inclusive.Without boundaries, however,democracies cannot adoptdecisions. By this logic,democracies should not decide. Indeed, once the internal logic ofthe darling dogma is exposed, itbecomes clear that it rests on anassimilation of democracy to themind-set of liberalism. Liberalismhas a preference for unanimitybecause liberalism puts rightsbefore the political process. Rights

give people at least a prima faciepower to veto interferences. Hence,a unanimously agreed upon result isunproblematic because it satisfiesthe liberal principle according towhich right-holders should inprinciple be free to dispose of theirrights only voluntarily. If they do,they have nothing to complainabout: volenti non fit iniuria. Fromthe perspective of this liberal socialvision,118 sweet harmony ofagreement is democratic, and atany rate, it is more democratic thanmajority rule within a bounded unit. The legitimacy of unanimity caneasily be substituted with the belief

in the right answer. One merely hasto assume that all liberal subjectsare reasonable. Reasonable peoplewould converge on the rightanswer. Their idiosyncratic willwould be overridden by insight.Such a substitution of willing withknowing may explain the appeal ofthe darling dogma. The idea maywell be that at the end of a day ofall-inclusive deliberation the rightanswer will be known. No decisionneeds to be taken. Someone willknow the answer; however, thatsomeone is notoriously unknown. Ifthat someone were known it would,in order to be someone, have to

have boundaries. Its apolitical nature is not theonly problem plaguing the darlingdogma. It also leaves open underwhich conditions bounded politiesc o ul d legitimately not take theinterests of others into account.119Arguably, a secular liberaldemocracy may ignore aneighboring theocracys interest inbeing surrounded by siblingtheocracies. A country sustaining ahigh level of social protection mayinsulate itself against competitivepressures that originate fromsocieties embracing authoritariancapitalism. The darling dogma says

nothing about the legitimacy of thedemands of others. It issubstantially empty. Rights are vehicles for excludingpotential impositions by others. Inorder to have bite, the darlingdogma would have to embrace atheory of the rights of individualsand collectives. Without an anchorin rights, the demand forparticipation loses its point. Mereparticipation neither confers norenhances legitimacy; only rightfulparticipation does. Everything elseis troublesome meddling.Undoubtedly, the Pope has aninterest in preventing abortions, but

it would be more than odd toconcede that the papal legate mustparticipate in national politicalprocesses because the Pope has astake in protecting the life of theunborn. Again, the emptiness of thetransnational effects standard is aconsequence of a typically liberaldilution of political autonomy. Theunderlying intuition must be thatregardless of whether outsidershave legitimate interests or not, it isonly fair to give them a voice. Onlyon the basis of their input can it bedetermined whether their concernsare relevant or not. In the liberal

social imaginary, political rightsprovide opportunities forexpression, but they do not conferpowers to decide. Politicalautonomy is manifest, therefore, infreedom of speech or of the press,in the right to associate or in theright to petition. Within the sameimaginary, public autonomy is ofteneven more refined when its exerciseis expected to exhibit certaindeliberative qualities. Politicalautonomy is not treated as a rightbut is identified with the normativecommitments intrinsic to itsexercise.120 It is political autonomyin moralized