A constitutional horizon?

I Three texts on legitimacy

Here are my texts.

Our exercise of coercive political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens [as free and equal] may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational. ¹

II The modern democratic horizon

I read ‘horizon’ poetically, to mean that tricky terminus on vision ‘whose margin fades … forever when [we] move’. If, as Ferrara says, ‘democracy’ drops a kind of curtain around right-thinking political possibility, ‘horizon’ suggests to me a portal through the curtain – the poet’s ‘arch’, the philosopher’s ‘openness’ (1, 48) – to perception beyond the familiar known. The curtain-drop is the emergence across the West of ‘democracy’ as an unassailable moral litmus for regimes of political and legal ordering. No doubt that always broadly connotes the rule of the people. But the western democratic curtain in place these days also and more narrowly signifies the people’s rule in recognized constitutional-legal good order. In democracy’s name, we look for a subjection of rulership to basic laws themselves attributable to the people, at least in reason if not also in history. These include laws subjecting the whole apparatus of power to interdepartmental checks, to overarching fundamental rights and to steering from a political public sphere itself screened off from administration but influentially connected to it by ‘sluice-gates’ of election and representation. And what ultimately gives the people, then, their unity as such – and hence their capability as an agent of rule – is their supposed shared attachment to these very constitutional-democratic institutional forms and ideas.

That is all on one face of the democratic horizon. On the other face, though, the face of the endless march of experience and discovery, we read Ferrara’s anticipation of a renewed democratic conception, one that could meet and withstand a set of oncoming social realities already well along to shattering the established constitutional-democratic mold. Among these conditions ‘inhospitable’ to democracy are ones like globalization and privatization, which combine to produce a daily subjection of citizens to sundry regulatory regimes of which they cannot plausibly see themselves as even remotely the authors. These conditions I will sometimes call compendiously by the name of ‘occlusion of authorship’. But a different kind of inhospitable condition is also very prominently in view here, to wit, the increasingly visible and insistent presence, in the countries of a professedly democratic West, of populations who do not at all or do not fully include themselves or their ways within the ‘historical tradition of constitutional democracy’ (as John Rawls liked to call it), with resultant pressure on those countries to seek out ‘a form of democracy that does not amount to a Westernization’ (17). That condition, which Ferrara names as ‘hyperpluralism’, is a high-intensity case of a more widely generalizable situation that I will sometimes refer to as ‘shortfall of agreement’.

It is important here to note that these two kinds of inhospitable condition, ‘occlusion’ and ‘shortfall’, neither are the same nor are they interchangeable. Each can exist without the other. Citizens who, as a body, exercise full and direct control over the laws they will have to obey could perfectly well confront in doing so a shortfall of agreement among them. Citizen bodies in full and perfect agreement could nevertheless confront an occlusion of authorship – say, by imperial rule from overseas. When a theorist says he writes in response to a threat to democracy from inhospitable conditions, it may sometimes be important to clarify which kind of condition he has in view – a point to which we shall soon return.

III A false start?

Regnant in current mainstream liberal-democratic thought is an idea of the constitution as a juristic achievement by citizens laying down law to control any and all further issuance of laws more immediately demanding their obedience. Upon first encountering Ferrara’s text marked ‘3’ above, I read it to suggest a substitution – ‘replacement’ – for this view of constitutions, as laws binding on the conduct of politics and power, by a view of them as publicly codified discussion points for use when such conduct is brought up for discursive complaint.

Implications would be large. However it may be with legality, legitimacy is not a sort of question to be settled by submission to juristic authorities, but only – if ever at all – by citizens debating and judging among themselves in free public discourse. So if the constitution is now newly to be approached as a pact of discursive benchmarks for debates on legitimacy and only that, then this replacement-vision constitution will be no longer a law to be juridically construed, applied and enforced. It will have become what a currently energized school of advocates prefers as a purely ‘political’ (or we might call it a purely discursive) constitution, as opposed to an operatively ‘legal’ one. A judicial finding of a statute’s deviation from the benchmark pact would be institutionally otiose, aside from whatever might be the social consequence of any resulting public blot on the regime or its agents. (That follows because if, to the contrary, a citizen-authored constitutional pact did retain its force as an institutionally enforceable law, then the pact would still be a medium through which citizens act as ‘ultimately the authors of the laws obeyed by them’, and Ferrara’s text ‘3’ apparently would be contradicted.)

It would be, as we shall see, a mistake to read this text of Ferrara’s as thus intended. Ferrara does not mean in the least to be promoting a turn to ‘political’ in place of ‘legal’ constitutionalism. He means rather, in apparent parallel with Rawls (text ‘1’ above), to advance legal constitutionalism as a remedy for conditions inhospitable to constitutional democracy as currently complacently understood. What we shall further find, though, in part through a comparison of Ferrara’s thought with Rawls’, is that legal-constitutional remedies for inhospitable conditions can carry differing side effects in practice, depending on which type of inhospitable condition, ‘occlusion’ or ‘shortfall’, they are meant to cure. That observation will lead us to a problem that neither Ferrara nor Rawls, I believe, can ever hope finally to solve.

IV A program of comparison

Texts ‘1’ and ‘2’ might well strike you as suspiciously and non-accidentally similar. All the more intriguing, then, would be two obvious discrepancies between them. Where Rawls writes of legitimation by constitutional compliance of any and all ‘coercive political power’, Ferrara writes more narrowly of the legitimation of structures of ‘governance’, meaning by that phrase the extensively delegated, comitological mode of production of a great deal of the regulatory law that Europeans these days have little choice but to obey. And where Rawls prescribes a purely substantive-hypothetical standard for a set of legitimacy-saving constitutional essentials (they must meet a test of expected endorsement by citizens judging reasonably on the basis of principles approvable by reason), Ferrara looks for a manifestation of actual citizen consent.

As a possible clue to a source for these discrepancies, consider that a different one of our two types of inhospitable condition appears to motivate the respective proposals of Rawls and Ferrara for a retreat to constitutional essentials as the space of political coming together: ‘occlusion’ for Ferrara and ‘shortfall’ for Rawls. Ferrara’s proposal comes in a chapter specifically directed to the challenge to democratic correctness posed by increasingly obtrusive facts of regulation of daily life by agencies ‘beyond the nation’ (164). Rawls’ comes in response to the question of how ‘there may exist over time [any] stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical and moral doctrines’. ³ My plan, then, will be to ask about possible differing implications, for democratic theory and practice, stemming from a difference in the triggering inhospitable conditions for the similar-looking formulations of Rawls and Ferrara.

V Rawls and shortfall of agreement

In the view of Rawls, a liberal political order is one that places foremost among political values an attribution to every person of a leading interest in the development and exercise of moral powers of the rational and the reasonable. The better the order complies, the greater the resultant certainty of persisting deep differences in the religious, philosophical and moral doctrines respectively and respectably held by citizens. A crucial challenge thus results, if not an outright contradiction. For on what possible basis, then, can the order call upon all citizens for a general posture of willing compliance with laws decreed by majorities, however badly off the track of justice, fairness, or tolerance perfectly fair-minded dissenters might find some of those laws to be? It is a question that seems quite insistently to demand an answer, especially given further a premise (‘Hobbes’s thesis’ ⁴ ) that without a prevailing expectation across society of everyone’s more-or-less regular submission to the laws, the morally necessary practice of government by law itself must collapse.

Rawls picked out this question as ‘the problem of political liberalism’. ⁵ Interestingly for us, he found it could equivalently be stated as that of how citizens in pluralist conditions could all ‘live together and affirm the political conception of a constitutional regime’. ⁶ In answer comes the principle of legitimacy sufficiently established by a guaranteed conformance by administrative power to a few abstractly stated basic-law ‘essentials’. The idea is to work out a set of such essentials so that each citizen can look the others in the eye and say, everyone here who understands the situation, including the very great practical and moral benefits to all of having a stable and widely assimilable system of legal ordering effectively in force, should be able to agree that a system constituted by just these essentials is sufficiently worth upholding to give each citizen a good enough reason to insist on each other’s loyalty to the system. When someone takes exception to a given policy to be carried out by law, we are morally licensed to reply that the law or policy in question might be right or it might be wrong, it might be just or it might be unjust, it might even be felt by some as oppressive, but it is not outside the constitution and so there is no wrong to you in our demanding your compliance with it.

In pluralistic conditions, the premise for this proposal obviously cannot be a supposition of an uncoerced convergence by literally everyone in sight on a substantial conception of the moral-minimum conditions for collaboration in a country’s practices of coercion by law. Rawls (text ‘1’) suggests only the possibility of such a convergence by everyone ‘reasonable and rational’ – by, in other words (the implication is inevitable), everyone for whose freedom and equality we are most urgently required to care by a morality of reciprocity. We thus here enter the gap that separates Rawlsian facts of ‘reasonable’ pluralism from the more obstreperous facts of ‘hyper’pluralism that Ferrara quite properly insists on including under what I have called the ‘shortfall’ class of inhospitable conditions.

Dealing with these more extreme conditions, Ferrara rightly remarks, was ‘beyond Rawls’ intention’ for his proposed constitution-centered liberal principle of legitimacy (91). Any attention by Rawls to this further challenge would have to be sought elsewhere in his oeuvre – as, for example, Ferrara responsibly seeks it in The Law of Peoples (105). We may notice, now, how this limitation on the Rawlsian legitimacy principle’s intention jibes nicely with the principle’s adoption of a strictly counterfactual test of the constitution’s acceptability to citizens conceived as reasonable. We will see below how the same limitation may bear further consequence for the legal status of the constitutional essentials and the reliance on courts of law authoritatively to construe and apply them to hard and testing cases. But that point is better left until after we have laid out for comparison the path taken by Ferrara to his own constitution-centered proposal for the achievement of democratic legitimacy.

VI Ferrara and occlusion of authorship

Ferrara’s texts ‘2’ and ‘3’ skirt the question we have just seen bedeviling Rawls, of tying political legitimacy and even the possibility thereof to reasonability. That is because their proposal of a substitution of authorship of constitutional essentials for authorship of ‘laws [directly to be] obeyed’ comes not as a response to shortfall of agreement but rather as a response to occlusion of authorship by citizens of the laws that directly govern daily life. The question Ferrara expressly says he wants his principle to answer is: ‘How can we make sense of the legislative authorship of citizens when governance replaces representative government?’ (179).

This question and Ferrara’s directly responsive propositions make their appearance not in his chapter 4, on hyperpluralism and possible remedies therefor, but rather in his chapter 7, directed to the challenge to democratic correctness posed by increasingly obtrusive facts of regulation of daily life by agencies ‘beyond the nation’ (164), where the accustomed constitutional-democratic lines of control and accountability are blurred perhaps to the vanishing point. At a point in history where this fact finally has to be faced without prevarication, the question of democracy vel non – so urges Ferrara – can right-thinkingly take a different turn from that of insistence on credibly clear channels of citizen control over the laws that rule their daily lives. Democracy then may still be said meaningfully to persist – the ‘ethos’ (1) and ‘passions’ (14) of democracy can still be satisfied – so long as we can see the citizens as freely and equally the authors of a relatively few and abstract set of constitutional essentials to which the daily regulators’ actions will reliably be held to conform. No doubt ‘strong’ democratic proceduralists may find this an impermissible relaxation from what democracy as a political cause ought always to be held to demand. ⁷ Ferrara, though, has waiting for them a cogent rejoinder. He would reply that satisfaction of his constitution-centered principle makes a difference worth fighting for, even by them, from the standpoint of motivating values that democracy means to advance: ‘the common good’, ‘equality’, ‘individualism’, and beyond and above those also a covering value of ‘openness’ including aspects of ‘hospitality’ and ‘generosity’ (14).

VII Ferrara, Ackerman and legal constitutionalism

We return now to my question posed at the start about whether Ferrara means to give up the idea of the constitution as positive, enforceable law in favor of an idea of it as talking points or benchmarks for public discourses on legitimacy. That question, as we now can see, was too hastily concocted. In order to fit Ferrara’s text ‘3’ within its proper context, it now seems we would have to (re)read it as follows:

We can rethink democracy by replacing the idea that the citizens are ultimately the authors of the laws obeyed by them [immediately demanding obedience from them] with the idea that citizens are ultimately the free and equal subscribers of a constitutional pact that in turn [imposes legal limits on all subordinate legislative and administrative action, and thereby] serves [also] as a benchmark for the legitimacy of [such] action that may then follow different, more technicized channels [as long as they comport with those limits and directives].

Two quite salient features in Ferrara’s surrounding argument conspire virtually to force the rereading. First, my initial reading (as I noted) would have placed Ferrara among advocates of the idea of a political-not-legal constitution, but Ferrara expressly denies the usefulness of the ‘political’ stance in explaining how comitological ‘governance’ can be made to fit as a component in a ‘new democratic potential’ (179).

Second, Ferrara claims major inspiration from Bruce Ackerman’s conception of democracy as a ‘dual’ legal structure, where a ‘higher’ law, enacted by democratic constituent power and enforced by judicial review, is held distinct and apart from subordinate day-to-day law made by elected legislative bodies (7, 178, 217). As my rereading has been drafted to show, not only is there no incompatibility between the service of a constitution as higher law and its service as an engine of democratic-authorial legitimation, there is an apparent complementarity between the two. What, after all, could more satisfyingly represent and more effectively carry out the control of the people’s higher law over day-to-day acts of governance than a standing readiness of law courts to denounce and cast aside deviations? As John Rawls himself remarked, ‘A supreme court … fits into … dualist constitutional democracy as one of the institutional devices to protect the higher law’. ⁸

VIII Ferrara, Rawls and judicial constitutional review

So where, then, do we see finally any difference between Rawls and Ferrara, on this topic of the uses of the constitution? Rawls no less than Ferrara is a declared endorser and follower of Ackerman’s higher/ordinary law construction, thus placing judicial review in the service of liberal-democratic legitimation. So what if they both get to the same place from different initial motivations?

The response I ask you now to consider – but not yet to make your final conclusion – is that despite resemblances they might not both be getting to the same place. Yes, both Rawls and Ferrara end up treating the constitution as binding law enforceable by courts; and yes, both do so in perfect consistency with their suggestions to treat the constitution also as a platform for the legitimation of subordinate laws on which people’s opinions sharply differ. Where the two views may come apart, though, is in their implications for the conduct of judicial constitutional review.

The topic is rich and complex and I can deal with it here only in cursory, conclusory terms. ⁹ So to get right to the marrow: where, as with Ferrara, an alleged deficiency of citizen authorship of law is the trouble to be cured by retreat to the abstract level of constitutional essentials, the corresponding job of the overseeing court will be exactly, as Rawls remarked, to ‘protect’ the higher law enacted by the people. And here we may recall Ferrara’s stipulation for empirical manifestations of popular consent. We can allow that Ferrara would not be overly fussy about where to draw the line between historical recovery and myth, because an attachment even to the myth must tie him also to some form of ‘originalism’ in judicial constitutional interpretation. He could not then abjure an expectation from reviewing courts of overt commitment to some mode or method, be it ever so highly abstracted or extenuated, of extracting from enactment history the actual legislative will of the people themselves. ¹⁰

With Rawls, though, the case looks very different. The issue he means to address, by his proposal to refocus from everyday law to constitutional essentials, is not historical-authorial, it is moral-theoretic. It is the issue of the moral licence of majorities to impose the coercion of ordinary law on assertedly free and equal dissenters. That licence is said by Rawls to depend on the questioned law’s conformance to constitutional essentials, acceptable to everyone, conceived as reasonable and rational. The corresponding call for overseeing courts can be only to bend both the scripted constitutional essentials and the doctrines of their application as far as possible toward values that the judges ‘believe in good faith … that all citizens as reasonable and rational’ could endorse; ¹¹ and of course that can only mean by the test of some political conception of justice that the deciding judge – studious, attentive, wise, patriotic and tolerant as the judge might or might not be – will always bring to the work of decision. The call, in short, is for judicial resort to the so-called ‘philosophical’ approach to constitutional interpretation, which currently stands as originalism’s polemical opposite. ¹² So there we have it: originalism for Ferrarians in search of vindication of democratic authorship, the philosophical approach for Rawlsians in search of moral vindication for the rule of legislated law.

That cannot, however, be the end of the story. If we ask what would be the one leading point of difference that Ferrara has with Rawls, the answer surely must lie in Ferrara’s refusal to flinch from facts of hyperpluralism. Any fair cover-to-cover reading of Ferrara’s book will show him searching, from start to finish, for a political-liberal compatible accommodation to these ‘deeper cultural cleavages’ (16).

Undoubtedly, I conclude, Ferrara puts the Ackerman dualist conception into service as a response both to occlusion of authorship and to shortfall of agreement. But then which implication for judicial review will he tell us to choose: ‘originalist’ or ‘philosophical’? If it truly is both types of inhospitable condition that we liberal democrats must always be aiming to meet through the device of the dualist-legal constitution, then that question seems destined to remain forever open, dangling before us and leading us ever onward towards an ever-receding liberal-democratic constitutional horizon.

Nothing better shows the point than Ferrara’s suggestion to political liberalism to meet the hyperpluralist challenge halfway in a pact of ‘multivariate’ polity. The pact would be one for social unification, but without even the thinned-out moral unanimity envisioned by Rawls’ principle of legitimacy. This complex ‘unity’ (107) would take in not only wholehearted endorsers of the society’s scripted constitutional essentials, and so of the system those essentials constitute, but also an extended circle of resigned but still reflectively willing prudential cooperators with that system. A harder case would be that of people who find themselves blocked from even such qualified endorsement by their principled attachments to non-western ways. Still, the multivariate polity could make allowance even for them by allowing for ‘degrees of legal pluralism’ – provided, however, that the norms to be extracted by these semi-autonomous groups from their dedicated forms of life and culture would not conflict outright with constitutional essentials deemed ‘central’ (108).

The polity thus described, Ferrara concludes, is ‘the best response to the tenuousness of consensus and the ubiquity of dissent that political liberalism can offer’ (108). It is, as those words say, an offer still in pursuit of a social unity within some outer bound of liberal tolerance. It would thus still demand from reviewing courts a ‘philosophical’ approach. The principle of bending and applying the scripted constitutional essentials as required in reason to sustain the pact of the liberal multivariate polity still contradicts the principle of reading and applying the scripted essentials to match the will or understanding of any historical author.

Unless, of course, we take ‘whatever it takes to sustain the pact’ to be the very mandate of the historical author to its judicial protectorate. In which case, the scripted essentials will indeed revert to the status of talking points for discourses of legitimation, and my first reading of Ferrara will have been right after all.