SSRN Id1272264

CONSTITUTION-CONSTITUTIONALISM REVISED DRAFT12-1-2008 1/23/09 8:28 PM
From Constitution to Constitutionalism:

A Global Framework for Legitimate
Public Power Systems
Larry Catá Backer*
Abstract
Academic and policy engagements with constitutions and constitutionalism have largely been built
around unstated frameworks within which legitimated activity can take place. The essay suggests
both the disorientation of much of the discussion and proposes a n ideological framework that
captures the assumptions about which constitutionalist discourse has evolved. Constitutionalism at
one time could be said to involve the study of the peculiarities of the unique domestic constitutional
framework through which government was constituted and power institutionalized. No longer. This
essay examines the current discourse of constitutionalism. That discourse reveals the current
dynamic character of the concept. The old consensus of conventional constitutionalism, that
constitutions are legitimately grounded either in domestic law and the unique will of a territorially
defined demos, is now challenged by a view that constitutional legitimacy requires conformity with
a system of universal norms grounded in an elaboration of the mores of the community of nations.
Traditional nationalist constitutionalism looks inward for its ideology as well as its yardstick for
measuring others. Transnational constitutionalism looks to the common constitutional traditions of
the community of states buttressed by international norms and organizations. The prize for both
constitutional traditionalists and transnationalists is control of the mechanics for classifying
constitutions, judging them legitimate and creating systems to enforce common conceptions of valid
constitution making through international law. Yet, both rising constitutionalist discourse, and the
development of values rich governance systems suggests that an animating ideology also underlies
constitutionalism as a whole, a broader and more basic ideology than those that underpin the
particular values variants of nationalist, transnational, theocratic and rationalist constitutionalism.
The object of this essay is to draw from out of current practice and discourse a working description
of the meta ideology that is constitutionalism in general. That definition suggests the characteristics
of constitutionalism as originating as a system of taxonomy and legitimation that is grounded in a set
of normative assumptions about the meaning and purpose of government. These basic presumptions
produce an ideology of substantive and process limitations on state power the content of which is the
usual focus of constitutionalist debate. The constitutionalist presumptions are rarely contested but
serve to divide groups of states on the basis of the sort of normative presumptions on which the state
is organized—nationalist, transnational, natural law, theocratic or Marxist Leninist presumptions.
Constitutions without legitimacy are no constitution at all, and legitimacy is a function of values,
which in turn serve as the foundation of constitutionalism. It is through the construction of those
values frameworks that international law has come to play an increasingly important role.
* Professor of Law, Pennsylvania State University, Dickinson School of

Law, State College, Pennsylvania; and Director, Coalition for Peace & Ethics,
Washington, D.C. The author can be contacted at lcb911@gmail.com. Many
thanks to my research assistant, Augusto Molina (Penn State ’09) for his
exceptional work on this project. Special thanks to the staff of the Penn State
Law Review, and in particular Alison Kilmartin (Penn State ’09) for their
excellent work on and support of this project..
101
Electronic copy available at: https://ssrn.com/abstract=1272264

102 PENN STATE LAW REVIEW [Vol. 113:3
_______
CONTENTS:
I. Introduction.
II. Consensus Constitutionalism.

A. Seeking the Universal; Constitutions as Elements
of a Normative World Order
B. Constitutional Legitimacy as Values.
C. Ethnic/National Constitutionalism and the
Legitimacy of Particularized Values.
D. The Peculiarities of an American Constitutionalist
Ideology.
E. Veiling Constitutionalism Within Contests Over
Values.
III. The Ideological Framework of Constitutionalism.
IV. Conclusion.
I. INTRODUCTION
Once upon a time it was unnecessary to look beyond constitutions.

Each represented the highest expression of the individual will of a
political community, sovereign to the extent it could defend (and
project) that sovereignty among the community of nations. A state
was “conceived of as itself the sole source of legality, the fons et
origo of all those laws which condition its own actions and
determine the legal relations of those subject to its authority.”1
The principal focus was on lawfulness—the adherence by
functionaries to the rules and processes through which state power
was organized and expressed. “A constitution allots the proper
share of work to eah and every part of the organism of the State,
and thus maintains a proper connection between the different parts.
. . ; while on the other hand, the Sovereign exercises his proper
1
. WESTEL W. WILLOUGHBY, THE FUNDAMENTAL CONCEPTS OF PUBLIC LAW 30
(1924).

CONSTITUTION-CONSTITUTIONALISM REVISED DRAFT1/23/09 8:28 PM
2009] FROM CONSTITUTION TO CONSTITUTIONALISM 103
functions in accordance with the provisions of the conatitution.”2

Lawfulness required government to be taken strictly in accordance
with law—but did not limit the range of lawful assertions of
government power. Lawfulness—rule of law—was tied to
avoidance of the tyranny of the individuals invoking state power,
but not to the regulation of the substantive ends for which that
power might be invoked. This was nicely bound up in German
notions of the rule state. “The Rechtsstaat could provide redress
against administrative action but stopped short of providing a
general sanction against governments. As a result, the Prussian
government was strictly non-responsible in both a political and
legal sense.”3 The value preserved within a constituonal state was
process, and the prerogatives of the legislature. “The Rechtsstaat
principle contemplates government according to law and allows a
remedy to be obtained in an impartial administrative court for
governmental violations of the law. However, the right to obtain
such relief must be granted by the legislature, either in the form of
a general grant or by specifically enumerating the type of violation
for which a remedy may be obtained.”4 This idea remains a
foundational element of constitutions and underpins the nascent
international system as well.5 “In most national communities, a
law draws support from its having been made in accordance with
the process established by the constitution, which is the ultimate
rule of recognition.”6
No one was particularly fussy about the content of those

constitutions. Democracy, for example, so important in modern
2
HIROBUMNI ITO, COMMENTARIES ON THE CONSTITUTION OF THE EMPIRE OF
JAPAN 9 (2d ed., 1906).
3
. GORDON SMITH, DEMOCRACY IN WESTERN GERMANY: PARTIES AND
POLITICS IN THE FEDERAL REPUBLIC 53 (1979); see id. at 202-05 (regarding
traditional rechtsstaat principles). For the Japanese understanding applied to the
Imperial Constitution, see, e.g., Nobushige Ukai, The Individual and the Rule of
Law Under the New Japanese Constitution, 51 NW U. L. REV. 733, 735-37
(1957).
4
See Ukai, supra, note 3, 735-36.
5
. THOMAS A. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS
41-46 (1995).
6
Franck, supra, note 5, at 41.

understanding of constitutionalism,7 was viewed as a choice that

might be rejected in whole or in part.8 It was the memorialization
and institutionalization of political power that marked
constitutions. It was the territorial borders of a state that marked
its limits. Constitutions could be declared the product of a
fiduciary obligation to ancestors for the protection of subjects.9 It
could be established by the will of hereditary sovereigns.10 Like
the French and American constitutions, it could be written for the
establishment of a government apparatus embracing certain higher
values, or like the British constitution represent unwritten but still
binding higher law articulated through the organs established for
that purpose.11 The law of the constitution, then, could be
7
. See, e.g., Walter F. Murphy, Constitution, Constitutionalism, and Democracy,
in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE
CONTEMPORARY WORLD (Douglas Greenberg et al. eds., 1993).
8
. See HIROBUMI ITO, COMMENTARIES ON THE CONSTITUTION OF THE EMPIRE
OF JAPAN (Miyoji Ito trans., 2d ed. 1911).
9
. The preamble of the 19th Century Japanese Imperial Constitution nicely draws
this out:
Having, by virtue of the glories of Our Ancestors, ascended
the throne of a lineal succession unbroken for ages eternal;
desiring to promote the welfare of, and to give development to
the moral and intellectual faculties of Our beloved subjects,
the very same that have been favored with the benevolent care
and affectionate vigilance of Our Ancestors; and hoping to
maintain the prosperity of the State, in concert with Our
people and with their support, We hereby promulgate. . . a
fundamental law of the State, to exhibit the principles, by
which We are guided in Our conduct, and to point out to what
Our descendants and Our subjects and their descendants are
forever to conform.
Dai Nihon Teikoku Kenpo (1889), preamble, available at
http://history.hanover.edu/texts/1889con.html.
10
. The German Imperial Constitution was declared in the following fashion:
“Wir Wilhelm, von Gottes Gnaden Deutscher Kaiser, König von Preußen etc.
verordnen hiermit im Namen des Deutschen Reichs, nach erfolgter Zustimmung
des Bundesrathes und des Reichstages, was folgt.” Gesetz betreffend die
Verfassung des Deutschen Reiches, vom 16. Apr. 1871, available at
http://www.documentarchiv.de/ksr/verfksr.html (German Imperial Constitution
of 1871) (“We Wilhelm, by the grace of God German Emperor, King of Prussia,
etc. decree on behalf of the German Empire, after the approval of the
Bundesrathes and the Reichstag, the following. . . .”).
11
. See, e.g., A.V. DICEY, AN INTRODUCTION TO THE STUDY OF THE LAW OF THE
CONSTITUTION 3-35 (reprint 1982) (8th edition, London: MacMillan, 1915).

understood essentially as a theoretic of higher law grounded in the

power of uniquely constituted and inward-looking political
communities.
But, in the aftermath of the Second World War and in the

context of the construction of an institutional framework for
discourse (and action) among the community of nations, values
have become important in constitutions, and the ability of states to
insulate themselves from the influence of others has been
substantially reduced. Emerging from that war were the
beginnings of a consensus that values matter in the establishment
of constitutions, that such values were superior in authority to any
peculiarities of national sentiment, and that they could be enforced.
The modern trend has been to distinguish between
constitutionalism and constitution.12 Their relationship has
become commonplace enough that their parameters are assumed.
Thus, for example:
Constitutions, in contrast, are premised on the
acceptance of state power as legitimate. If
significant strife exists on the ground or the
government is not accepted by the people, then the
constitution may become a "façade constitution." A
façade constitution can declare aspirational
principles and adopt power structures for
government, but such provisions and principles are
ineffective and potentially delegitimized because
they are not followed in practice. . . .13
A constitution without legitimacy is no constitution at all.

It is outside the law in the sense that it ought to be respected by the
community against which it is applied. “Insurgency, by definition,
12
. See Larry Catá Backer, God(s) Over Constitutions: International and
Religious Transnational Constitutionalism in the 21st Century, 27 MISS. C. L.
REV. 11, 34-37 (2008).
13
. Note, Counterinsurgency and Constitutional Design, 121 HARV. L. REV.
1622, 1632 (2008) (citing Giovanni Sartori, Constitutionalism: A Preliminary
Discussion, 56 AM. POL. SCI. REV. 853, 861 (1962) and Noah Feldman, Imposed
Constitutionalism, 37 CONN. L. REV. 857, 872 (2005)). See also Miguel Schor,
Constitutionalism Through The Looking Glass Of Latin America, 41 TEX. INT'L
L.J. 1 (2006).

undermines a shared constitutionalism. Rory Stewart perhaps puts

it best: ‘It did not matter what human rights were enshrined in
documents if your local sheikh, party leader, or policeman could
still beat you up on the street corner.’”14 Legitimacy is a function
of values, which in turn serve as the foundation of
constitutionalism.
Constitutionalism thus might be understood as a

systematization of thinking about constitutions grounded in the
development since the mid 20th century of supranational normative
systems against which constitutions are legitimated.15
Communities of nations can rely on that systematization to
legitimate, in turn, their actions against non-legitimate
governments under principles of international law,16 or against
which the populace can legitimately rebel.17 Constitutions are
distinguished from constitutionalism18—the latter serving as a
means of evaluating the form, substance and legitimacy of the
14
. Id. See generally RORY STEWART, THE PRINCE OF THE MARSHES: AND
OTHER OCCUPATIONAL HAZARDS OF A YEAR IN IRAQ 339 (2007).
15
. See, e.g., H.L.A. HART, THE CONCEPT OF LAW, 100-10 (2d ed. 1994)
(discussing the meaning of legitimation as a political and legal concept in the
modern era for the validation of political and legal acts). “[The] legitimation
effect can be defined as the process through which systematic losers come to
understand themselves as part of the system, as self-governing, and as having
willed their losses and their subordinate status.” Orly Lobel, The Paradox of
Extralegal Activism: Critical Legal Consciousness and Transformative Politics,
120 HARV. L. REV. 937, 958 (2007). See also Steven Bernstein, Legitimacy in
Global Environmental Governance, 1 J. INT'L L. & INT'L REL. 139 (2005)
(noting the intersection of legitimacy and constitutionalism in the area of
environmental justice).
16
. “In the discourse on international relations, we routinely differentiate
between various categories of states and label them according to certain criteria
that we consider relevant for our understanding of the dynamics of international
politics. Sometimes these criteria are purely factual, but mostly they have an
evaluative, even moralizing, overtone.” Ulrich K. Preuß, Equality of States—Its
Meaning in a Globalized Legal Order, 9 CHI. J. INT'L L. 17 (2008).
17
. See, e.g., Dante B. Gatmaytan, It’s All the Rage: Popular Uprisings and
Philippine Democracy, 15 PAC. RIM L. & POL'Y J. 1 (2006).
18
. See, e.g., CARLOS SANTIAGO NINO, THE CONSTITUTION OF DELIBERATIVE
DEMOCRACY 3 (1996); KARL LOEWENSTEIN, POLITICAL POWER AND THE
GOVERNMENT PROCESS 147-53 (1957).

former.19 It was in this form, for example, that Carlos Santiago

Nino made his powerful arguments in support of the extension of
parliamentary governmental systems in Latin America.20 He
explained the value of parliamentary systems “as responsive . . . to
the consensus of society.”21 That connection has constitutionalist
value. “That the government reflects flexibly the consensus of
society enhances most of the values in the light of which a political
system may be appraised.”22 And it connects constitutions to the
project of legitimacy grounded in values that transcend the whims
of a territorially-bounded polity. “That coincidence between a
government and its measures and social consensus deepens the
objective legitimacy of the political system.”23
Even if one can argue that constitutionalism is grounded in

the emergence of a transnational culture of values, it is not clear
which of those value systems is legitimate. More importantly,
perhaps, it is unclear which of those value systems is privileged
above the others. I have suggested that a sort of transnational
constitutionalism has sought to claim the privilege of arbitrating
constitutional values (and thus constitutional legitimacy).24 That
system is transnational and secular. It is grounded in the
development of a single system designed to give authoritative
expression to the customary values of the community of nations
that together make up the values systems of constitutionalism and
constitutional legitimacy.25 But rival systems of constitutionalism
have emerged, the most potent currently being those grounded in
19
. These notions become clearer beyond the self-contained discussions within
Western academic circles. See, e.g., Albert H.Y. Chen, A Tale of Two Islands:
Comparative Reflections on Constitutionalism in Hong Kong and Taiwan, 37
HONG KONG L.J. 647 (2007). Chen notes that “[c]onstitutionalism as a theory
and practice of government and law is a product of modern Western civilization.
Like science, it has proved to have universal appeal to humanity and has in the
last two centuries been transplanted to all corners of the earth.” Id. at 650.
20
. Carlos Santiago Nino, Transition to Democracy, Corporatism and
Presidentialism with Special Reference to Latin America, in
CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY
WORLD 46 (Douglas Greenberg et al. eds., 1993).
21
. Id.
22
. Id.
23
. Id.
24
. See Backer, supra note 9, at 104.
25
. See id.

the normative systems of universalist religion.26 And the

traditional understanding of constitution—now understood to
embrace the values of constitutionalism without conceding its
transnationalist or even its secularist common law character—is
alive and well as the backbone of constitutionalist thinking in
places like the United States.27 For that purpose, it is worth
spending a little time exploring the meaning of constitutionalism, a
term whose meaning is as elusive as the unitary system of
constitutional legitimacy it means to underlie.28 That is the object
of this essay.
This essay starts with a critical examination of the main

currents of writings about constitutionalism. That scholarship is
protean, at best, and empty at worst. To the casual reader,
constitutionalism appears to have become an invocation—a part of
an incantation useful for contextualizing, intensifying or
26
. See Larry Catá Backer, Theocratic Constitutionalism: Religion as Basis for
Constitutional Legitimacy in a Global Age, 16 IND. J. GLOBAL LEGAL STUD. --
(forthcoming 2009) (“Theocratic constitutionalism is grounded in notions
similar to those that underlie transnational secular constitutionalism—that there
is a set of universal values under the authority of which government is both
constructed and limited. The form of that government must respect the dignity
of individuals, and avoid the elevation of any particular individual to a position
in which he can use the authority of the state for personal ends. Government is
meant to give effect to the rule of law. But the universal values which provide
the framework within which governmental power may be asserted, and the
framework for evaluating the relation of individual to state, is provided by
religion.” Id., draft at 22). See also , e.g., Intisar A. Rabb, “We The Jurists”:
Islamic Constitutionalism in Iraq, 10 U. PA. J. CONST. L. 527 (2008) (discussing
the result while avoiding forays into the controversy over the definition of
constitutionalism).
27
. See generally EDWARD MCWHINNEY, CONSTITUTION-MAKING: PRINCIPLES,
PROCESS, PRACTICE (1981) (on constitutional ethnocentrism and the possibilities
of universal values derived therefrom).
28
. See, e.g., CARLOS SANTIAGO NINO, THE CONSTITUTION OF DELIBERATIVE
DEMOCRACY (1996). It is still commonplace to suggest that constitutions and
constitutionalism are equivalent terms, or that constitutionalism refers to the
study of constitutions in all its forms, or to the science of legitimate constitution
making or to the set of values that can be called constitutional and not merely
government. See Charles M. Fombad, Challenges to Constitutionalism and
Constitutional Rights in Africa and the Enabling Role of Political Parties:
Lessons and Perspectives from Southern Africa, 55 AM. J. COMP. L. 1 (2007)
(discussing constitutions, constitutionalism, and citing the literature).

legitimating any number of arguments made in its name. Yet it is

possible to extract a cluster of meaning from this discourse. That
is the purpose of this section—not to judge the arguments of the
contributors but to extract from those arguments a framework of
meaning within which the discourse is itself understandable. The
focus is on the production of meaning within the field. For that
purpose academic discourse, though fictive, serves an essential role
in the production of an authenticity of meaning and a legitimacy in
a specific meaning of and belief in the structure of law—like that
of the art dealer in relation to the work she sells. Bourdieu
explains the relationship well:
The art trader is not just an agent who gives the
work a commercial value by bringing it into a
market; he is not just the representative, the
impresario, who “defends the author he loves.” He
is the person who can proclaim the value of the
author he defends (cf. the fiction of the catalogue or
blurb) and above all “invests his prestige” in the
author’s cause, acting as a “symbolic banker” who
offers as security all the symbolic capital he has
accumulated. . . .29
That constitutionalist discourse, in turn, tends to evidence the
dynamic character of the concept. Conceptions of conventional
constitutionalism are said to be grounded either in domestic law
and the unique will of a territorially defined demos, or in a system
of universal norms grounded in an elaboration of the mores of the
community of nations.
From out of this discourse, Section II suggests a working

description of constitutionalism.30 Constitutionalism is more than
the fairly unhelpful general definition—an adherence to or
government according to constitutional principles.31 A more
useful definition suggests the characteristics of constitutionalism as
29
. PIERRE BOURDIEU, THE FIELD OF CULTURAL PRODUCTION 77 (Randal
Johnson ed., 1993). For this reason alone, investment in the production of
academic thinking is valuable in the construction of belief in constitutionalism
and its meaning.
30
. See infra text accompanying notes 199-212.
31
. Merriam-Webster.com, http://www.merriam-
webster.com/dictionary/constitutionalism (last visited Nov. 22, 2008).

originating as a system of taxonomy and legitimation that is

grounded in a set of normative assumptions about the meaning and
purpose of government. Specifically, this essay unpacks what are
identified as the five core elements of constitutionalism as it has
come to be developed over the course of this century:
Constitutionalism is: (1) a system of classification, (2) the core
object of which is to define the characteristics of constitutions
(those documents organizing political power within an institutional
apparatus), (3) to be used to determine the legitimacy of the
constitutional system as conceived or as implemented, (4) based on
rule of law as the fundamental postulate of government (that
government be established and operated in a way that limits the
ability of individuals to use government power for personal
welfare maximizing ends), and (5) grounded on a metric of
substantive values derived from a source beyond the control of any
individual.
These basic presumptions produce an ideology of

substantive and process limitations on state power the content of
which is the usual focus of constitutionalist debate. Indeed, much
of the great variations in constitutionalism currently arise from
great differences in constitutionalist ideology, in those metrics of
substantive values on which classifications are understood, the
characteristics of constitutions are assigned values, legitimacy is
understood and rule of law is framed. From this definition it is
possible to begin to theorize the emerging variants of values based
constitutionalism that have arisen since 1945. Traditional
nationalist constitutionalism situates the source of its values in the
transcendent genius of the people of the nation itself.
Transnational constitutionalism situates those legitimating
substantive values in their expression by consensus of the
community of nations. Natural law constitutionalism is grounded
in universal values based on humanity’s nature or aspirations.32
Theocratic constitutionalism grounds those values in the
32
“The universal ideal of the Middle Ages went on what I have called positive
natural law, an ideal of a universal superlaw, discoverable by reason, to which
local law ought to conform and of which the local law at its best is a
reflection.” ROSCOE POUND, THE IDEAL ELEMENT IN LAW 28 (Indianapolis, IN:
Liberty Fund, 2002) (1929)

imperatives of a privileged religious system.33 Lastly, rationalist

constitutionalism situates such values in higher order rational
systems—from free market to Marxist-Leninist.34
These ideological frameworks of substantive

constitutionalism are incompatible, and to some extent
aggressively competitive. Each is advanced as the only sensible
universal and legitimate system of norms. The basic postulates of
constitutionalism (classificatory, judgmental, and rule of law
higher law characteristics) are rarely contested. These serve to
separate constitutionalist systems from perversions of legitimate
government—tyranny, oligarchy and mob rule.35 But the
normative presumptions on which the state is organized—
nationalist, transnational, natural law, theocratic or Marxist-
Leninist presumptions—the last element of the definition of
constitutionalism, tend to sharply divide governance systems.
These divisions form the basis of the great modern debate about
values supremacy in the organization of states. And on that basis
much of what passes for constitutionalist discourse, especially
comparative constitutionalist discourse across foundational
frameworks, actually is meant to justify the claims of one or
another system to universal legitimacy.
Thus understood, constitutionalism becomes the framework

through which the organization of states can be evaluated,
legitimated and affected. Constitutionalism suggests both a
33
. See, e.g., Larry Catá Backer, Theocratic Constitutionalism: Religion as
Basis for Constitutional Legitimacy in a Global Age, 16 IND. J. GLOBAL LEGAL
STUD. -- (forthcoming 2009).
34
. While traditional Marxist-Leninist governance has been dismissed as
illegitimately constitutionalist, it might be possible to construct a legitimate
constitutionalist state on Marxist-Leninist principles. For a consideration of that
issue see, for example, Larry Catá Backer, The Party as Polity, The Communist
Party and the Chinese Constitutional State: A Theory of Party-State
Constitutionalism , 16 J. CHINESE COMP. & L. (forthcoming 2009); Larry Catá
Backer, The Rule of Law, the Chinese Communist Party, and Ideological
Campaigns: Sange Daibiao (the “Three Represents”), Socialist Rule of Law,
and Modern Chinese Constitutionalism, 16 TRANSNAT’L L. & CONTEMP. PROBS.
29 (2006).
35
. In the West, these divisions are at least as old as Aristotle. See ARISTOTLE,
THE POLITICS (William Ellis trans., 1912).

systematization of the parameters for conceiving constitutions and

for responding to particular manifestations of constitutional
expression. But it does not suggest a particular form of
governmental organization, or a single system of substantive
principles through which constitutionalism can be expressed. Still,
it distinguishes between understandings of states and state
organization that are legitimate, and those that are not. For many,
this framework takes on a particular set of behaviors. Democracy,
human rights, socials and economic rights, labor rights, religious
liberty, secularism, anti-corruption and the like have served as
proxies for constitutionalism, yet each of them describe an aspect
of a partiocular application of the ideology of constitutionalism
raher than it essence. Most importantly, perhaps, it suggests that
constitutionalism has become another means of organizing the
great competition between communities of believers for control of
legitimating discourse of political organization. The language may
be constitutions, but the object is control, and the control of
legitimating discourse is the key. It is to the unpacking of this
privileged discourse to expose the legitimating ideology beneath
that this article is devoted.
II. CONSENSUS CONSTITUTIONALISM
Robin West once usefully sketched out the parameters within

which much constitutionalist discourse is situated:
We might, in fact, think of various theories of
constitutionalism along a continuum, defined by
this "particularist-to-universalist" axis. At one end
are views of constitutionalism that see the role of
the constitution as delineating a national identity, by
in effect highlighting and sharpening distinctive
events, features, and moments of the nation's shared
history. At the other end are views of
constitutionalism that see the role of the constitution
as imposing constraints, in the name of universalist
conceptions of humanity, on just that sort of
national distinctiveness: the purpose of the
constitution, in other words, as understood at this
end of the spectrum, is to require of the state

obligations derived not from the country's history,

but from the human status of the state's citizens.36
Many discussions of constitutionalism seek to situate their
discussion somewhere along this continuum and in the service of a
particular purpose. All constitutionalism is justificatory—
justifying a particular perspective or objective in the normative
construction of the rules for understanding the character of systems
of governance.37 Most seek to explain and to provide a basis for
manipulating the current reality: a system of political states
unequal in power, whose governments are constituted by a written
instrument that seeks to delineate the limitations of the state’s
powers, now operating within an increasingly bureaucratic and
autonomous network of supranational and international institutions
more and more empowered to assert legitimately constituted
legislative and executive power. 38
A. Seeking the Universal; Constitutions as Elements of a

Normative World Order.
For many influential scholars, constitutionalism can be

most usefully approached from the narrowing confines of the field
36
. Robin West, Human Capabilities and Human Authorities: A Comment on
Martha Nussbaum's Women and Human Development, 15 ST. THOMAS L. REV.
757, 770-71 (2003) (“[E]ither pole of this axis, as well as any number of mid-
way points along it, are plausible enough accounts of the way the idea of
constitutionalism has been bandied about in theory and used in practice, at least
in the United States.”).
37
. Mark E. Brandon, Home on the Range: Family and Constitutionalism in
American Continental Settlement, 52 EMORY L.J. 645, 655 (2003)
(“Constitutionalism is a political theory concerned with the architectural
structure and basic values of society and of government. It aims to make the
world comprehensible and, to some degree, controllable. Historically, it is
preoccupied with the problem of power, particularly the power of those who
would rule others, especially when that rule might be arbitrary.”).
38
. Id., n. 132, citing MARK E. BRANDON, FREE IN THE WORLD: AMERICAN
SLAVERY AND CONSTITUTIONAL FAILURE 10 (1998) (suggesting a working
definition: a theory of the institutions and values of a type of political
"enterprise" in which (1) people, or “a people,” (2) self-consciously attempt (3)
to conceive the design for a new political world, (4) to embody that design in
some sort of text, and (5) to implement it in the world).

of international law.39 They build on the great framework of

constitution making that produced the Japanese and German post
Second World War constitutions. The relevant connection of
international to national constitutional law framework is nicely
expressed in the Japanese Constitution: “We believe that no nation
is responsible to itself alone, but that laws of political morality are
universal; and that obedience to such laws is incumbent upon all
nations who would sustain their own sovereignty and justify their
sovereign relationship with other nations.”40 For scholars using
this understanding as a general template for legitimate constitution,
constitutionalism might be said to represent the (necessary)
subordination of domestic law within the superior binding power
of law originating form a self-constituted global community.41
Some advocates look to the construction of a global

constitution, that is, of the constitution of an autonomous global
community from which rules are developed to constrain domestic
constitution making. The focus is on the construction of that
community.42 That construction might focus on systems of
positive norm-making as well. For that purpose an autonomous
institution, superior to any nation-state, might be required.
Transnational constitutionalism involves the development of an
institutionalized organization of the community of nations—
superior to and autonomous of its members.
As regards the "verticalization" of international law,
the surfacing of a hierarchical legal relation
between the sphere of individual states and the
realm of the interests and values of the global
community as a whole--the criterion that I suggest
as the defining feature of international
39
. See, e.g., W. FRIEDMAN, THE CHANGING STRUCTURE OF INTERNATIONAL
LAW (1978); TOWARDS WORLD CONSTITUTIONALISM: ISSUES IN THE LEGAL
ORDERING OF THE WORLD COMMUNITY 31, 34 (Ronald St. John Macdonald &
Douglas M. Johnston eds., 2005).
40
. Nihonkoku KENPÕ [Constitution], preface (1946) (Japan), available at
http://www.solon.org/Constitutions/Japan/English/ english-Constitution.html.
41
. See, e.g., Anne Peters, Global Constitutionalism in a Nutshell, in
WELTINNENRECHT: LIBER AMICORUM JOST DELBRÜCK 535, 536 (Klaus Dicke
et al. eds., 2005); LOUS HENKIN, INTERNAITONAL LAW: POLITICS AND VALUES
31-39 (1995).
42
. See, e.g., Preuß, supra note 13, at 17.

constitutionalism--both erga omnes norms and jus

cogens presuppose and refer to a sphere of common
matters of mankind which have a higher normative
rank than rules regulating interstate relations.43
The real issues here are tied to the implementation of the apparatus
of this government and the scope of its powers.44 Among the
greatest of those powers are those that mimic domestic federal
structure—for example through the development of jus cogens
principles45 as lawmaking superior to domestic constitutions,46 in
43
. Id. at 39 (“Obviously the former rules include the principles laid down in the
UN Charter, such as prohibition of the use of force (except the case of self-
defense), respect for the political independence and territorial integrity of any
state, and, most importantly, the protection of human rights as laid down in
several international compacts.” Id.). Erga omnes norms have been understood
as obligations common to the community of nations, that is “the obligations of a
State towards the international community as a whole. . . . In view of the
importance of the rights involved, all States can be held to have a legal interest
in their protection; they are obligations erga omnes.” Barcelona Traction, Light
& Power Co. (2d Phase) (Belg. v. Spain), 1970 I.C.J. 3, 33 (Feb. 5) (“Such
obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles and
rules concerning the basic rights of the human person, including protection from
slavery and racial discrimination.” Id., at 34). Erga Omnes norms might also be
understood as peremptory norms—jus cogens. See Vienna Convention on the
Law of Treaties art. 53, opened for signature May 23, 1969, 1155 U.N.T.S. 331
(“Treaties conflicting with a peremptory norm of general international law (jus
cogens) A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. For the purposes of the present
Convention, a peremptory norm of general international law is a norm accepted
and recognized by the international community of States as a whole as a norm
from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character.”). Jus
cogens is not defined with precision but is said to include many norms whose
obligations are ergo omnes. The forms of international law, and the way in
which they seek to bind states, sought its constitutional effect. In this sense,
international law norms appear to contribute to systems of transnational
constitutionalism—that is of constitutionalism that is based on a presumption of
the legitimacy of international aw norms to limit the scope and choices of
ordering states through domestic constitutions. See Ruti Teitel, Humanity Law:
A New Interpretive Lens on the International Sphere, 77 FORDHAM L. REV. 667,
679-81 (2008).
44
. See, e.g., Anne-Marie Slaughter, The Real New World Order, 76 FOREIGN
AFF. 183, 183-86 (1997).
45
. See Vienna Convention on the Law of Treaties art. 53, opened for signature
May 23, 1969, 1155 U.N.T.S. 331, available at

the way that federal law is superior to the law (even the
constitutional law) of the states comprising the union.
Yet, such institutionalist systems can be customary in nature—

based on the evolving constitutional traditions of the member
states of the community. The European Union provides a model—
a federalist system grounded in international law,
constitutionalized through the acts of its own institutions
acquiesced to by the Member States.47
Institutional design, even in the most venerable and
venerated constitutional settlements, must always be
viewed as a derivative and contingent exercise,
always at the service of the core values and the
changing detail of material and cultural conditions
and of diversely located solutions which influence
the articulation and optimal balance of these core
values.48
In this context, the internationalization effectively represents a
blending and generalization of the consensus positions of
appropriate or basic norms drawn from the evolving constitutional
traditions of the member states of the supranational system. “The
universalistic content of basic rights is not restricted by the ethical
permeation of the legal order; it thoroughly permeates nationally
http://www.worldtradelaw.net/misc/viennaconvention.pdf (“For the purposes of

the present Convention, a peremptory norm of general international law is a
norm accepted and recognized by the international community of States as a
whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the
same character.”).
46
. See, e.g., Christian Tomuschat, Obligations Arising for States Without or
Against Their Will, 241 RECUEIL DES COURS 195 (1993); Bruno Simma & Philip
Alston, The Sources of Human Rights Law: Jus Cogens and General Principles,
12 AUSTL. Y.B. INT’L LAW 81-108 (1992).
47
. See Larry Catá Backer, The Extra-National State: American Confederate
Federalism and the European Union, 7 COLUM. J. EUR. L. 173 (2001)
(discussing the nature of that settlement within the architecture of European
Union constitutionalism).
48
. NEIL WALKER, Postnational Constitutionalism and the Problem of
Translation, in EUROPEAN CONSTITUTIONALISM BEYOND THE STATE 27, 54 (J.
H. H. Weiler & Marlene Wind eds., 2003).

specific contexts.”49 South Africa provides another example.50

These generalized norms are then used as a yardstick against which
the actions of the member states themselves are measured—by the
organs authorized for that purpose at the supranational level.51 In
the case of the European Union, of course, that is tied up in the
legitimation of the European Court of Justice as a sort of Supra
Constitutional Court.52
Both approaches to supranational or international
constitutionalism do not focus directly on the peculiarities
domestic constitutions themselves, except as a consequential or
incidental matter. The context or uniqueness of a particular
constitutional experience may serve as a part of the conversation
leading to consensus but does not generally require
acknowledgement where it deviates form transnational norms. The
important element is the development of the framework within
which these contextualized expressions of higher domestic law can
be judged, and corrected. This is constitutionalism with another
49
. Jurgen Habermas, Reply to Symposium Participants, Benjamin N. Cardozo
School of Law, 17 CARDOZO L. REV. 1477, 1498 (1996).
50
. The Preamble to the South African Constitution commits the nation to
“Build a united and democratic South Africa able to take its rightful place as a
sovereign state in the family of nations.” S. AFR. CONST. 1996, pmbl., available
at http://www.constitutionalcourt.org.za/site/constitution/english-
web/preamble.html. The Constitution itself is formally tied to international law
as it emerges among a consensus of nations. Article 39 instructs the South
African Courts: “When interpreting the Bill of Rights, a court, tribunal or forum
1. must promote the values that underlie an open and democratic society based
on human dignity, equality and freedom; 2. must consider international law; and
3. may consider foreign law.” Id. at art. 39.
51
. For a discussion of the process, see Larry Catá Backer, Forging Federal
Systems Within a Matrix of Contained Conflict: The Example of the European
Union 12 EMORY INT’L L. REV. 1331, 1343, 1369-82 (1998) (“Within the
constitutional context, the doctrines of autonomy and supremacy provide the
framework for the possibility of establishing norms at the Community level,
while the development of general principles of Community law provides the
substance of such norms.”).
52
. See Larry Catá Backer, Restraining Power from Below: The European
Constitution’s Text and the Effectiveness of Protection of Member State Power
Within the EU Framework, The Federal Trust for Education and Research
Online Paper No. 15/04 (July, 2004), available at
http://www.fedtrust.co.uk/eu_constitution.

goal—the construction of a global governance order.53 Since the

late 1940s, the focus of this institution creation exercise to
memorialize transnational consensus on constitutional governance
values has been on the United Nations system and the construction
of a variety of supranational human rights organizations. These
institutions are meant to produce norms that reflect the
constitutional and justice traditions of its members—that reflect
their highest and best aspirations—and formalize those traditions
as international law binding not only on states but superior to the
constitutional traditions of any of them.54 International
institutions, for example the International Court of Justice, have
increasingly adopted this position, though many states, including
the United States, have not yet embraced the notion as a matter of
law.55
For that purpose a certain verticality is necessary; a

constitutionalization of international law is required.56 But the full
consequences of this verticality suggest a certain subordination of
national for supranational order, bounded by a singular set of
53
. See, e.g., Allen N. Sultan, Principle and Practical Foundations of a Global
Constitutional Order, 3 WASH. U. GLOBAL STUD. L. REV. 155, 162 (2004).
54
. L. ALI KHAN, A THEORY OF UNIVERSAL DEMOCRACY: BEYOND THE END OF
HISTORY 115 (The Hague, Netherland, 2003) (“universal values emerge from a
global state of consensus”).
55
. A particularly illuminating example involved the long battle between the
Texas Court of Appeals, the United States Supreme Court and the International
Court of Justice regarding the application of provisions of the Vienna
Convention in a way that is incompatible with traditional American
constitutional limits. See, e.g., Vienna Convention on Consular Relations and
Optional Protocol on Disputes, April 24, 1963, 596 U.N.T.S. 261, 262-512,
available at http://fletcher.tufts.edu/multi/texts/BH444.txt; Case Concerning
Avena and Other Mexican Nationals (Mex. v. U.S.) 2004 I.C.J. 12 (Mar. 31),
available at http://www.icjcij.org/icjwww/ipresscom/ipress2004/
ipresscom2004-16_mus_20040331.htm; Medellín v. Dretke, 544 U.S. 660
(2005), available at http://www. supremecourtus.gov/opinions/04pdf/04-
5928.pdf); Ex parte Medellin 223 S.W.3d_315 (Tex. Crim. App. 2006),
available at
http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPI
NIONID=14711; Medellin v. Texas, 128 S.Ct. 1346 (2008), available at
http://www.oyez.org/cases/2000-2009/2007/2007_06_984/.
56
. See, e.g., JÜRGEN HABERMAS, THE DIVIDED WEST (2006). See also
EUROPEAN CONSTITUTIONALISM BEYOND THE STATE (J. H. H. Weiler &
Marlene Wind eds., 2003).

norms.57 The place of the constitutions of the Member States of

the European Union within that system provides an advanced
regionalist model of the form.58 Even at the international level,
focusing on the United Nations architecture, for example, there is a
sense that a principal element of this constitutionalism is focused
on international institutionalization59—state building of one sort or
another, whether as a customary or positive legal system or a
variant thereof.60 As one proponent put it, paraphrasing George
Washington, “membership in a community means being bound.”61
In its postmodern iteration, the other shoe drops—the idea that
constitutionalism ought no longer to be tied to the nation-state
suggests that constitution and nation state are no longer necessarily
synonymous.62 A similar approach has evolved within the
57
. See Thomas Cottier, Limits to International Trade: The Constitutional
Challenge, 94 AM. SOC'Y INT'L L. PROCS. 220, 221 (2000) (suggesting as a basic
orientation of global governance a need for constitutionalization grounded in “an
attitude and a framework capable of reasonably balancing and weighing
different, equally legitimate and democratically defined basic values and policy
goals of a polity dedicated to promote liberty and welfare in a broad sense”).
58
. “The dominant international and, especially, European constitutional
tradition contemplates ‘a constitutional order embodying universal principles
that derive their authority from sources outside national democratic processes
and that constrain national self-government.’” Kenneth Anderson, Foreign Law
and the U.S. Constitution, 131 POL’Y REV. 33, (June & July 2005) (citing Jed
Rubenfeld, The Two World Orders, 27 WILSON Q. 22 (Autumn 2003)). See,
e.g., Martin Scheinin, Introduction, in WELFARE STATE AND
CONSTITUTIONALISM: NORDIC PERSPECTIVES (Martin Scheinnin ed., 2001).
59
. See, e.g., Cary Coglianese, Globalization and the Design of International
Institutions, in GOVERNANCE IN A GLOBALIZING WORLD 297 (Joseph S. Nye, Jr.
& John D. Donahue eds., 2000).
60
. Hassan El Menyawi, Toward Global Democracy: Thoughts in Response to
the Rising Tide of Nation-to-Nation Interdependencies, 11 IND. J. GLOBAL
LEGAL STUD. 83-133 (2004) (“Rather than develop a democracy for all nations
in a single global assembly, it might be more appropriate to develop democracy
by linking (either among or between) national populations without bringing
them together under a single roof, where smaller nations might be overwhelmed
by larger ones and prompted to cede their sovereignty.” Id., at 87). For a
discussion, see Backer, supra note 9, at 34-37.
61
. Preuß, supra note 13, at 45 (referencing Documents Illustrative of the
Formation of the Union of American States 1003 (Charles C. Tansill ed., 1927)).
62
. See, e.g., Paolo Carrozza, Constitutionalism's Post-Modern Opening, in THE
PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND
CONSTITUTIONAL FORM 169 (Martin Loughlin & Neil Walker eds., 2007).

constitutionalist discourses of regional human rights courts.63 In

either iteration, it is the modernist notion of the uniqueness of the
ethnos, uniqueness legitimately expressible within a constitution,
which is undermined.
In its non-institutional form, a variant of internationalist

constitutionalism is grounded in that strain of comparative law that
focused on universalism and convergence.64 “Universal values
share two distinct characteristics: First they are not geographical,
in that they cut across national, ethnic, religious, and linguistic
borders. They are common to all states. Second, they are not
confined to temporal boundaries.”65 It is sometimes couched in the
language of cosmopolitanism.66 It posits a new constitutionalism,
grounded in a vertical ordering of domestic law with constitutional
63
. See, e.g., Larry Catá Backer, Inscribing Judicial Preferences into Our Basic
Law: The Political Jurisprudence of European Margins of Appreciation as
Constitutional Jurisprudence in the U.S., 7 TULSA J. COMP. & INT’L L. 327, 346-
61 (2000) (noting the European Court of Human Rights and margins of
appreciation in enforcing the norms of the European Human Rights
Convention).
64
. For an interesting discussion of the convergence model of constitutionalism
and its critique, see Ruti Teitel, Book Review: Comparative Constitutional Law
in a Global Age, 117 HARV. L. REV. 2570, 2573 (2004) (reviewing
COMPARATIVE CONSTITUTIONALISM: CASES AND MATERIALS (Norman Dorsen
et al. eds., 2003)) (“The casebook assumes that ‘[c]omparison is at the center of
all serious inquiry and learning’ (p. 1) and that one should always conduct the
inquiry with an eye to convergence. In this regard, Comparative
Constitutionalism attempts to recover the comparativist project's longstanding
ambition of reclaiming a belief in a coherent body of law.”).
65
. L. ALI KHAN, A THEORY OF UNIVERSAL DEMOCRACY: BEYOND THE END OF
HISTORY 81 (2003) (“In their origin, universal values are rooted in the state of
consensus. In their purpose, they provide guidance to Free States in conducting
their internal and external affairs. In the era of nation-states, the supreme values
are confined to national constitutions and national traditions.”).
66
. See, e.g., SEYLA BENHABIB, ANOTHER COSMOPOLITANISM: (THE BERKELEY
TANNER LECTURES) (Robert Post ed., 2006) (arguing that the institution of the
United Nations systems has produced an age of global civil society in which
norms of universal social justice originating are legitimated and privileged over
other norms, including the conception of democratic norms held by some
polities); KWAME ANTHONY APPIAH, COSMOPOLITANISM: ETHICS IN A WORLD
OF STRANGERS (2006) (focusing on ethics rather than on legal constitutionalism
per se).

provisions at its apex.67 “Constitutionalism is an ideal that may be

more or less approximated by different types of constitutions. . .
.”68 Institutionalism, at the supranational or national level is
rejected as anti-constitutionalist.69 Instead, constitutionalism
“reflects the abiding hope that from the shared culture, history, and
ethos of these consanguineous states, a homogeneous legal order
can emerge.”70 As such, “constitutionalism is not necessarily tied
to any definite institutional project, European or otherwise. Less
than an architectural project, constitutionalism would then be a
programme of moral and political regeneration. This is what I
mean by the description of constitutionalism as a ‘mindset.’”71 In
its natural law formulation it suggests
certain principles of right and justice which are entitled to
prevail of their own intrinsic excellence, altogether
regardless of the attitude of those who wield the physical
resources of the community. . . . In relation to such
principles, human laws are, when entitled to obedience
save as to matters indifferent, merely a record or
transcript, and their enactment an act not of will or power
but one of discovery and declaration.72
67
. David Landau, The Two Discourses in Colombian Constitutional
Jurisprudence: A New Approach to Modeling Judicial Behavior in Latin
America, 37 GEO. WASH. INT'L L. REV. 687, 704-10 (2005) (addressing Latin
American constitutionalism).
68
. COMPARATIVE CONSTITUTIONALISM: CASES AND MATERIALS 10 (Norman
Dorsen et al. eds., 2003).
69
. Like Neil Walker, these scholars tend to ask: “Is it at all legitimate even to
attempt to translate the language and normative concerns of constitutionalism
from the state to the non-state domain? If it is not, there is no problem that
merits, still less requires, our attention.” Walker, supra note 44, at 27.
70
. Margaret A. Burnham, Indigenous Constitutionalism and the Death Penalty:
The Case of the Commonwealth Caribbean, 3 INT'L J. CONST. L. 582, 614 (2005)
(focusing on the institution of the Caribbean Court of Justice).
71
. Martti Koskenniemi, Constitutionalism As Mindset: Reflections on Kantian
Themes About International Law and Globalization, 8 THEORETICAL INQUIRIES
L. 9, 18 (2007) (“Irrespective of the functional needs or interests that laws may
seek to advance, a Kantian view would focus on the practice of professional
judgment in applying them.”). See also William E. Scheuerman,
Constitutionalism in an Age of Speed, 19 CONST. COMMENT. 352, 366 (2002)
(describing constitutionalism as the expression of “a broadly-defined set of
abstract moral principles”).
72
. EDWARD S. CORWIN, THE “HIGHER LAW” BACKGROUND OF AMERICAN
CONSTITUTIONAL LAW 4-5 (Cornell University Press 1955) (1928) (emphasis in

B. Constitutional Legitimacy as Values.
The principal issue, then, is to determine the set of ideals

that follow. This effort has been at the forefront of substantive
constitutionalism since the end of the Second World War with the
reconstitution of the Japanese and German constitutions. Both
constitutions were rich in process constitutionalism before 1945,
but were additionally enriched with a set of constitutionally
mandated substantive moral/ethical principles.73 Much of the
original). For a classic critical discussion, see ROSCOE POUND, sypra note 32, at
31-65 (Indianapolis, IN: Liberty Fund, 2002) (1929) (“Today we should be
employing philosophical method in jurisprudence to set off and criticize the
ideal element in systems of developed law.” Id., at 31).
Natural rights notions were critical to the development of constitutionalist
conceptions of the state and state power in the United States over the issue of the
power of the federal government to control the rights of American citizens from
the antebellum period through the adoption of the Fourteenth Amendment. See
Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil
War and Reconstruction, 61 N.Y.U. L. REV. 863, 890 (1986) (“After the Civil
War, some congressional Republican supporters of civil rights enforcement
embraced the antebellum radical abolitionist theory of constitutionalism. They
argued that the national government had always possessed the authority to
secure the natural rights of American citizens because the function of securing
these natural rights is the primary purpose of all free governments.”); JACOBUS
TENBROEK, EQUAL UNDER LAW 176-79, 181, 188-89, 191-97, 209-11 (Collier
Books, rev. ed. 1965) (1951).
73
. See Backer, supra note 9, at 11. For a contemporaneous account of the
process in Japan, see SUPREME COMMANDER FOR THE ALLIED POWERS,
GOVERNMENT SECTION, POLITICAL REORIENTATION OF JAPAN, SEPTEMBER 1945
TO SEPTEMBER 1948: REPORT (Washington, D.C.: U.S. Government Printing
Office, 1949) (“Thus, in [MacArthur’s] efforts to entrench political freedom
based upon the rights and dignity of the individual, and economic freedom based
upon free private competitive enterprise, he has received little aggressive
support in a land where these fundamentals to American life and progress have
never before been known.” Courtney Whitney, Forward: The Philosophy of the
Occupation, in Id., at xx). As the administrators of the Japanese Occupation
explained their assumptions in pressing for the reform of the Imperial
Constitution:
The basic ingredients of government in a democratic society
are well established. There must be a body of rules readily
available to and easily understood by all, equally applicable to
all and adopted and altered according to procedures which
assure full opportunity for participation by all members of the

recent development of universalist secular constitutionalism has

invested tremendous resources into an interrogation of the
components of those ideals.74 Michel Rosenfeld provides a useful
digest:
community and which are sufficiently rigid to guarantee

reasonable stability of those rules. There must be a body of
administrators chosen by and from among the individual
members of society and answerable to them. The right of
every individual freely to choose and freely to retire his agents
of government is an absolute and inalienable one in a
democracy. There must be an independent and impartial
tribunal for the trial of disputes between individuals and
between individuals and their government. And there must be
effective guarantees against those threats to individual
freedom, to human existence and to the public welfare which
human society has come to recognize as threats to civilization
itself.
The state--the body politic--has neither existence nor authority
nor justification beyond the collective hopes and desires of the
individual members. The citizen--the participating member of
the society--owes no duty or allegiance to the state as a
separate entity but only to society as the aggregate of its
individual human members--as the projection of himself.
Neither the government nor its agents can be immune to his
challenge. At every point in the administration of government
at which the individual considers that his rights or his liberties
have been infringed, he is entitled as of absolute right to ask:
"By what authority is this done?"; he is entitled to seek redress
or remedy through the channels provided by law --the ballot
box or the court of justice.
Political Reorientation of Japan, supra, 92 (Sewction III, “The New Constitution
of Japan”). For its application in the Chinese context, see Larry Catá Backer,
The Rule of Law, The Chinese Communist Party, and Ideological Campaigns:
Sange Daibiao (the “Three Represents”), Socialist Rule of Law, and Modern
Chinese Constitutionalism, 16(1) J. OF TRANSNAT’L. L. & CONTEMP. PROBS. 29
(2006).
74
. Among the most influential theorists of this project is Louis Henkin. See,
e.g., Louis Henkin, A New Birth of Constitutionalism: Genetic Influences and
Genetic Defects, 14 CARDOZO L. REV. 533, 533 (1993); see also LOUIS HENKIN,
CONSTITUTIONALISM AND RIGHTS: THE INFLUENCE OF THE UNITED STATES
CONSTITUTION ABROAD (Louis Henkin et al. eds., 1990); Michel Rosenfeld,
Modern Constitutionalism as Interplay Between Identity and Diversity, in
CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND LEGITIMACY: THEORETICAL
PERSPECTIVES 3 (Michel Rosenfeld ed., 1994) (“modern constitutionalism
requires imposing limits on the powers of government, adherence to the rule of
law, and the protection of fundamental rights”); Daniel S. Lev, Social

[I]n the broadest terms, modern constitutionalism requires

imposing limits on the powers of government, adherence to
the rule of law, and the protection of fundamental rights.
Moreover, although not all constitutions conform to the
demands of constitutionalism, and although
constitutionalism is not dependent on the existence of a
written constitution, the realization of the spirit of
constitutionalism generally goes hand in hand with the
implementation of a written constitution.75
The foundational ideal is the drawing of principled limits to the
assertion of governmental power.76 These concerns are bound up
in notions of process—protections against arbitrary actions on the
part of government or any of its servants. Many of these notions
Movements, Constitutionalism and Human Rights: Comments from the

Malaysian and Indonesian Experiences, in CONSTITUTIONALISM AND
DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD 139 (Douglas
Greenberg et al. eds., 1993) (legal process); FRANK I. MICHELMAN, BRENNAN
AND DEMOCRACY (2005) (freedom, individual rights, limited government and
rule of law); Gidon Sapir, Religion and State in Israel: The Case for
Reevaluation and Constitutional Entrenchment, 22 HASTINGS INT'L & COMP. L.
REV. 617 (1999) (verticality and constitutional supremacy, modification limited,
powerful and independent judiciary, popular sovereignty).
75
. Rosenfeld, supra note 70, at 3. This sort of approach was widely held in any
number of variations and from a variety of perspectives, all of which embraced
the process substantive rule of law basis of constitutionalism. See, e.g., Vasiliy
A. Vlasihin, Political Rights and Freedoms in the Context of American
Constitutionalism: A View of a Concerned Soviet Scholar 84 NW. U. L. REV.
257, 258 (1989) (“Constitutionalism is thus a written constitution per se
surrounded by a cloak of unwritten principles, values, ideals, procedures, and
practices. Without attempting to list the entire file of attributes of American
constitutionalism, let me single out the key ones. Making up the core of
constitutionalism are the ideas of “popular sovereignty” and a social contract as
the source of the government; the principles of republicanism, federalism,
separation of powers, and government limited by law; respect for the rights and
liberties of citizens and the protection of private property; the rule of law and the
supremacy of the Constitution; and independence of the judiciary and judicial
review.”).
76
. See, e.g., CHARLES HOWARD MCILWAIN, CONSTITUTIONALISM: ANCIENT
AND MODERN 21-22 (Cornell University Press rev. ed. 1947) (“constitutionalism
has one essential quality: it is a legal limitation on government”); HANNAH
ARENDT, ON REVOLUTION 143 (1977).

are bound up in the principles understood as “rule of law,” at least

in its process aspects.77
But process is not enough to protect a polity from itself.78

Rule of law or limits as a foundational component of
constitutionalism now also has a substantive aspect.79 The
principles under which legality is constituted becomes of
paramount importance within modern constitutionalism.80 For
many, the focus is on democracy,81 though there is a substantial
77
. See Backer, supra note 59, at 72 (“First, rule of law is understood as
embedded in mandatory systems, for maintaining firm limits on the arbitrary use
of state power by the individual. This is the idea of rule of law in its process
aspect, limiting the use of state power only when grounded in legitimately
enacted law. Second, rule of law is understood in its substantive aspect as
vesting the state with the critical role as guardian of a set of foundational
communally embraced substantive norms that are to be protected and furthered
through the use of state power grounded in law.”). See also RANDALL
PERRENBOOM, CHINA’S LONG MARCH TOWARD RULE OF LAW 126-88 (2002).
78
. See, e.g., Matthew Lippman, Law, Lawyers, and Legality in the Third Reich:
The Perversion of Principle and Professionalism, 11 TEMP. INT’L & COMP. L.J.
199 (1997).
79
. Thus, academics sometimes speak of positive as well as passive
constitutionalism associated with the vindication of certain norms. “[W]e
should talk about constitutionalism in terms of what government should do,
rather than what it cannot or should not do. We must tackle the challenge posed
by Leon Duguit many years ago: ‘Any system of public law can be vital only so
far as it is based on a given sanction to the following rules: First, the holders of
powers cannot do certain things; second, there are certain things they must do.’”
Arthur S. Miller, Myth and Reality in American Constitutionalism, 63 TEX. L.
REV. 181, 204 (1984) (reviewing DON PRICE, AMERICA'S UNWRITTEN
CONSTITUTION: SCIENCE, RELIGION, AND POLITICAL RESPONSIBILITY (1983)
and HEBERT MCCLOSKY, DIMENSIONS OF TOLERANCE: WHAT AMERICANS
BELIEVE ABOUT CIVIL LIBERTIES (1983) (quoting LEON DUGUIT, LAW IN THE
MODERN STATE 26 (H. Laski trans., 1919)).
80
. See, e.g., FRIEDRICH A. HAYEK, THE CONSTITUTION OF LIBERTY 181 (1960)
(“all power rests on the understanding that it will be exercised according to
commonly accepted principles, that the persons on whom power is conferred are
selected because it is thought that they are most likely to do what is right, not in
order that whatever they do should be right”).
81
. See, e.g., BORIS DEWIEL, DEMOCRACY: A HISTORY OF IDEAS (2000); Samuel
Issacharoff, Constitutionalizing Democracy in Fractured Societies, 82 TEX. L.
REV. 1861, 1861 (2004) (addressing “the role of constitutionalism in stabilizing
democratic governance in . . . fractured societies. . . . because of the limitations
it imposes on democratic choice”).

spectrum of meaning hidden within that ideal,82 along with rule of

law, social justice, and political justice.83 Democracy, as a
constitutional concept, is sometimes tied to notions of
citizenship—that is the legitimacy of democracy itself is grounded
in the inclusion of all members of the polity in an effective and
perhaps equivalent way.84 The meanings of those terms vary with
the politics of the advocate.85 Democracy is also a difficulty for
82
. Contrast, for example, the universalist focus on democracy as the essential
focus of constitutionalism as expressed by the first President Bush, see Larry
Catá Backer, President Bush's Second Inaugural Address: A Revolutionary
Manifesto for International Law in Chaotic Times, Law At the End of the Day,
at http://lcbackerblog. blogspot.com/2006/04/president-bushs-second-
inaugural.html (Apr. 1, 2006, 17:48 EST), with emerging notions of African
democratic constitutionalism, see H. Kwasi Prempeh, Africa's
“Constitutionalism Revival”: False Start or New Dawn?, 5 INT'L J. CONST. L.
469, 481 (2007) (“In a nutshell, constitutionalism in Africa in the early decades
following the end of colonialism faced a massive deficit of legitimacy. Africa's
postcolonial rulers chose to create sources of legitimacy not in constitutions or
democratic elections but in supraconstitutional (and suprademocratic) welfarist
projects tied to the pressing material concerns of the people”). See generally
MICHELMAN, supra note 73, at 3-32; RUSSELL HARDIN, LIBERALISM,
CONSTITUTIONALISM AND DEMOCRACY 277 (1999) (“Democracy is essentially a
member of the mutual-benefit class of theories. If political divisions cut very
much deeper than the marginal issues on which we can democratically
compromise, democracy may no longer seem to produce mutual benefits. It
then produces major–not marginal–winners and losers. Big disagreements bring
us down.”).
83
. Charles M. Fombad, Challenges to Constitutionalism and Constitutional
Rights in Africa and the Enabling Role of Political Parties: Lessons and
Perspectives from Southern Africa, 55 AM. J. COMP. L. 1, 7 (2007) (arguing that
constitutionalism “clearly means something more than the mere attempt to limit
governmental arbitrariness, which is the premise of a constitution, and which
attempt may fail, as it has done several times in Africa. The concept today can
be said to encompass the idea that a government should not only be sufficiently
limited in a way that protects its citizens from arbitrary rule but also that such a
government should be able to operate efficiently and in a way that it can be
effectively compelled to operate within its constitutional limitations.”). See also
PHENG CHEAH, INHUMAN CONDITIONS: ON COSMOPOLITANISM AND HUMAN
RIGHTS (2007).
84
. See, e.g., SEYLA BENHABIB, THE RIGHTS OF OTHERS: ALIENS, RESIDENTS,
AND CITIZENS (THE SEELEY LECTURES) (2004) (citizenship and moral
personhood); BRIAN BARRY, CULTURE AND EQUALITY: AN EGALITARIAN
CRITIQUE OF MULTICULTURALISM (2002).
85
. See, e.g., CHEAH, supra note 82, at 17-44, 80-119 (arguing that mainstream,
multiculturalism, and human rights discourse do not adequately focus on issues

those seeking to move constitutionalist discourse up from the

national to supranational institutions.86 Indeed, sometimes
constitutionalism and democracy are inverted within the hierarchy
of political values.87
Human rights are also foundational to notions of

constitutionalism.88 Human rights have been particularly
privileged within constitutional orders, especially since 1945.89
Constitutions now tend to emphasize the importance of limits on
governmental power to interfere with individual prerogative and to
impose positive obligations on states to protect individuals in a
of distributive justice). See also essays in MULTICULTURALISM: EXAMINING

THE POLITICS OF RECOGNITION (Amy Gutmann ed., 1994). For a critique, see
AMARTYA SEN, IDENTITY AND VIOLENCE: THE ILLUSION OF DESTINY (ISSUES OF
OUR TIME) (2007). For a discussion of recent efforts at distinguishing between
real and sham democracy, see Larry Catá Backer, Democracy, Part XII: On
Sham Democracies, Law At the End of the Day,
http://lcbackerblog.blogspot.com/2008/06/democracry-part-xii-on-sham-
democracies.html (June 27, 2008, 16:22 EST) (referencing in part Human Rights
Watch, HRW World Report 2008, Jan. 31, 2008, available at
http://hrw.org/wr2k8/pdfs/wr2k8_web.pdf (“Under modern notions of
transnational constitutionalism, sham democracies are illegitimate–as are the
governments created thereunder. As constitutional ‘outlaws’ sham democracies
may be subverted, ignored, sanctioned, or overthrown.”)).
86
. For a discussion, see Eric Stein, International Integration and Democracy:
No Love at First Sight, 95 AM. J. INT’L L. 489 (2001); Oren Perez, Normative
Creativity and Global Legal Pluralism: Reflections on the Democratic Critique
of Transnational Law, 10 IND. J. GLOBAL LEGAL STUD. 25 (2003).
87
. See, e.g., Christopher J. Walker, Toward Democratic Consolidation?: The
Argentine Supreme Court, Judicial Independence, and the Rule of Law, 18 FLA.
J. INT'L L. 745, 755 (2006) (“a lively and independent civil society, a political
society with sufficient autonomy and a working consensus about procedures of
governance, and constitutionalism and the rule of law—are virtually definitional
prerequisites of a consolidated democracy”). See also CASS R. SUNSTEIN,
DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO (2002).
88
. “The fundamental value that constitutionalism protects is human dignity.”
Walter Murphy, An Ordering of Constitutional Values, 53 S. CAL. L. REV. 703,
758 (1980).
89
. There is a long tradition of the incorporation of human rights within
constitutional systems. Its modern form, perhaps, can be traced back to the 1789
Declaration of the Rights of Man eventually and now loosely tied French
Constitutionalism. See JOHN BELL ET AL., PRINCIPLES OF FRENCH LAW 156-62
(1998).

variety of circumstances.90 All substantive values in constitutional

systems, no matter how disparate the treatment appears in detail,
include precise and significant protections of the individual. It is
central to notions of secular constitutionalism,91 but also of
theocratic92 and rational constitutionalism as well.93 The
constitutions of political communities from out of colonialism are
particularly well developed in this respect.94 The human rights
focus is tied to democratic principles. “In contrast to the presumed
moral worth of nativism against the colonial rulers, the task in the
era of new constitutionalism is the moral definition of democratic
90
. The German postwar constitution provides a useful template for human
rights privileging constitutional construction. See Grundgestez, arts. 1-20. The
critical provisions of which may not be changed through amendments to the
constitution. See, id., at art. 79(3) (“Amendments to this Basic Law affecting
the division of the Federation into Länder, their participation on principle in the
legislative process, or the principles laid down in Articles 1 and 20 shall be
inadmissible.”).
91
. See, e.g., András Sajó, Preliminaries to a Concept of Constitutional
Secularism, 6 INT'L J. CONST. L. 605, 625 (2008) (“Secular (public) reason-
giving in law is also crucial for the human rights component of liberal
constitutionalism in the following sense: ‘The secular character of the
normative system embodied in human rights doctrine is essential to its
comprehension. All its premises, values, concepts and purposes relate to the
homocentric world and to ways of thought freed from transcendentalist premises
and from the jurisdiction of religious authority.’”) (quoting in part YEHOSHUA
ARIELI, THE THEORY OF HUMAN RIGHTS, ITS ORIGIN AND ITS IMPACT ON
MODERN SOCIETY [in Hebrew], quoted after Frances Raday, Culture, Religion,
and Gender, 1 INT'L. J. CONST. L.663, 663 (2003)).
92
. See Cairo Declaration on Human Rights in Islam (Aug. 5, 1990), available at
http://www.religlaw.org/ interdocs/docs/cairohrislam1990.htm. “Thus, it is not
that theocratic constitutionalism, or its Islamic variety, fails to embrace human
rights as a strict limit on the power of the state, it is that the understanding of the
nature and character of those rights spring from foundationally different sources.
Those difference can produce significant variation in application.” Larry Catá
Backer, Theocratic Constitutionalism: Religion as Basis for Constitutional
Legitimacy in a Global Age, 16 IND. J. OF GLOBAL LEGAL STUD. -- (forthcoming
2008).
93
. See Larry Catá Backer, The Communist Party and the Constitutional State:
A Theory of Constitutionalism and the Party-State, 16 J. CHINESE & COMP. L. --
(forthcoming 2009).
94
. “In the context of the human rights revolution, the main focus of the moral
redefinition of the new democracies in contrast to the totalitarian regimes they
replace is the latter's violation of human rights.” James T. Richardson, Religion,
Constitutional Courts, and Democracy in Former Communist Countries, 603
ANNALS AM. ACAD. POL. & SOC. SCI. 129, 135-36 (2006).

political community.”95 It is also tied to the erection of binding

systems of international norms whose object is to limit the power
of constitutional states in the exercise of their otherwise
constitutionally lawful powers.96
Sometimes that search leads to the rejection of uniformity

in the way in which a political community is organized.97 It is
sometimes couched in the language of polycentricity or pluralist
constitutionalism.98 It can even suggest a blending of public and
private law in the construction of higher order systems of
governance. “In a polycentric order . . . state boundaries have
95
. Id. at 135.
96
. “Contemporary international law has started to present certain requirements
to governments concerning the treatment of their population. . . . all
governments, notwithstanding whether they have ratified any human rights
treaties or not, are under the obligation to respect and protect at least the core of
basic human rights.” REIN MÜLLERSON, ORDERING ANARCHY: INTERNATIONAL
LAW IN INTERNATIONAL SOCIETY 166 (2000).
97
. WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF
MINORITY RIGHTS (1996); CHARLES YOUNG, MULTICULTURALISM: EXAMINING
THE POLITICS OF RECOGNITION (1994); IRIS MARION YOUNG, JUSTICE AND THE
POLITICS OF DIFFERENCE (1990). This strain looks to multicultural
constitutionalism, which in the United States, tend to look inward. See text and
notes 164-65, supra.
98
. See Inger-Johanne Sand, Polycontextuality as an Alternative to
Constitutionalism, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM
41-65 (Christian Joerges et al. eds., 2004). In the European context, see Marlene
Wind, The European Union as a Polycentric Polity: Returning to a Neo-
Medieval Europe?, in EUROPEAN CONSTITUTIONALISM BEYOND THE STATE 103,
122 (J. H. H. Weiler & Marlene Wind eds., 2003) (“A polycentric approach
would thus reject that the hierarchical nation state is the only or the best model
to describe the European Union as it looks today or may come to look in the
future. One might instead try to see the Community as consisting of an ongoing
dialogue or negotiation between multiple networks and levels–each claiming its
interpretation to be the valid one.”). I have previously described this as a
foundation norm of contained conflict. See also Larry Catá Backer,
Harmonization, Subsidiarity and Cultural Differences: An Essay on the
Dynamics of Opposition Within Federative and International Legal Systems, 4
TULSA J. COMP. & INT’L. L. 185, 210 (1997) (“In a sense, the notion of
contained conflict is built into a system with the irreconcilable goals of
harmonization, subsidiarity and protection of insular cultures. This is a
containment of conscious design. . . . It reflects both the mistrust of
harmonization, subsidiarity and insularity, as well as the mistrust of the absence
of any of them.”).

become permeable, actors are less dependent on territory,

technologies transcend the nation-state, and state-centered
constitutionalism loses ground to independent regulatory agencies
and government networks.”99 Though the state cedes power, even
constitutional power to these networks, the power ceded does not
necessary come to rest in supra national public entities or within a
community of nations. Instead, network governance can be
grounded in private as well as public consensus. Constitutionalism
thus acquires a private as well as a public context, as both public
and private communities assert constitutional authority within the
scope of their jurisdiction and cooperate in the assertion of their
respective authorities.100 At its limit, constitutionalism is presented
as both diffused and extra-legal—in the sense that it loses its
precise connection with the ordering of states as holders of a
monopoly of regulatory power and acquires a global dimension as
the discourse of limits of public or private communal power.101
Sometimes constitutionalism and legitimacy assumptions

are inverted, so that constitutionalism becomes one of a number of
assumptions that serve legitimacy,102 or accountability.103
Legitimacy, within a constitutionalist context, is sometimes also
understood as a function of its historicity, and the control of that
history.104 For others, “the very idea of Constitutionalism itself . . .
99
. Andrea Hartmann & Hélene Ruiz-Fabri, Transnational Networks and
Constitutionalism, 3&4 INT’L J. CONST. L. 481, 484 (2008).
100
. Id. at 487 (“Private transnational networks operate in transboundary
contexts, where power is diffuse and virtually impossible to locate, even as they
set up . . . parallel private sets of norms that ultimately escape constitutional
law.”).
101
. See Gunther Teubner, Societal Constitutionalism: Alternatives to State-
Centred Constitutional Theory, in TRANSNATIONAL GOVERNANCE AND
CONSTITUTIONALISM 3-28 (Christian Joerges et al. eds., 2004).
102
. See, e.g., Thomas Poole, Legitimacy, Rights and Judicial Review, 25
OXFORD J. LEGAL STUD. 697 (2005).
103
. “Conceptions of horizontal and vertical accountability correspond to the
ideas of constitutionalism and democracy, respectively.” Richard L. Sklar,
Democracy and Constitutionalism, in THE SELF-RESTRAINING STATE: POWER
AND ACCOUNTABILITY IN NEW DEMOCRACIES 53 (Andreas Schedler et al. eds.,
1999).
104
. For an excellent study, see Amy Kapczynski, Historicism, Progress and the
Redemptive Constitution, 26 CARDOZO L. REV. 1041, 1042 (2005) (“Accepting
that we must think historically if we want to think constitutionally, and that we

at least in liberal democracies or republics, and certainly including

our own, should be understood as entailing that states are obligated
to ensure that all citizens enjoy those basic capabilities necessary
to lead a decent life.”105 Still others use the constitutional
taxonomy of Karl Loewenstein to merge notions of
constitutionalism with normative (substantive values based)
constitutions.106 Another group might speak of
constitutionalization strategies grounded in the distinctive needs of
the stakeholders in a particular constitutional system.107 What
must, when thinking historically, also account for the present day legitimacy of
the Constitution, what kind of history should we practice?”).
105
. Robin West, Katrina, the Constitution and the Legal Question Doctrine, 81
CHI.-KENT L. REV. 1127, 1128-29 (2006) (citing MARTHA C. NUSSBAUM,
WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH (2000)).
106
. “Normative constitutions determine who become power holders, and really
regulate the exercise of power and the relationship between power holders; their
normative force is internalised by political actors who really take the rules
stipulated in the constitution seriously, respect them and abide by them.” Albert
H.Y. Chen, A Tale of Two Islands: Comparative Reflections on
Constitutionalism in Hong Kong and Taiwan, 37 HONG KONG L.J. 647, 651
(2007). “A normative constitution is thus an essential ingredient of the practice
of authentic constitutionalism.” Id.
107
. Ernst-Ulrich Petersmann, Addressing Institutional Challenges to the WTO
in the New Millennium: A Longer-Term Perspective, 8 J. INT'L ECON. L. 647,
662 n.39 (2005) (exploring constitutionalism, Petersmann said “from a citizen
perspective (e.g. as the struggle of citizens for ‘constitutionalizing’ national and
international law by bringing it into better conformity with individual
constitutional rights) and from a comparative constitutional perspective (e.g.
focusing on the common 'constitutional principles' resulting from the struggle
for individual and democratic self-government, like democracy, separation of
powers, rule of law, human rights, legal primacy of constitutional over post-
constitutional rules, social justice”). For a discussion of a feminist positivist
constitutionalism, see Rosalind Dixon, Feminist Disagreement (Comparatively)
Recast, 31 HARV. J.L. & GENDER 277 (2008) (looking at positivist
constitutionalism—disruptive, ameliorative and transformative—from a new
feminist perspective grounded in gender justice). Ironically, these strategies for
constitutionalism apply even for those who would otherwise focus
constitutionalism on the local characteristics of the constitution making demos
(or ethnos). Thus, for example, some argue that some constitutionalist
internationalism may be a necessary predicate to avoid the pitfalls of
majoritarianism within religiously based constitutionalizing states. See Madhavi
Sunder, Enlightened Constitutionalism, 37 CONN. L. REV. 891 (2005). His
theory of “[e]nlightened constitutionalism rejects shutting down transnational
discourses in the name of preserving authenticity and resisting ‘imposition.’ It
is premised on a view of permeable borders across which ideas and power

clearly emerges within this tradition, though, is the development of

a dynamic relationship between constitution, constitutionalism and
legitimacy. A written document denominated “constitution” may
not be considered legitimately so unless it is written in accordance
with the substantive and procedural parameters of
constitutionalism.108 “Constitutions without constitutionalism are
a fairly standard, if not the defining, feature of illiberal regimes
everywhere.”109 But the touchstone is a taxonomy that makes it
easier to distinguish between constitutions with the objective of
limiting the ability of states to legitimate governments through
constitutions that do not practice what they appear to preach.110
Yet another focus of this approach is technical. Assuming

a set of universal values to be advanced—the substance of
constitutionalism—the real issue is reduced to process.
inevitably will flow. Furthermore, enlightened constitutionalism embraces the

affirmative need for and right to cross-cultural dialogue.” Id. at 902.
108
. See ANDREA BONIME-BLANC, SPAIN'S TRANSITION TO DEMOCRACY: THE
POLITICS OF CONSTITUTION-MAKING (1987) (arbitrariness and the Spanish
constitution); H.W.O. Okoth-Ogendo, Constitutions Without Constitutionalism:
Reflections on an African Political Paradox, in CONSTITUTIONALISM AND
DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD 65 (African
constitutions). “Defining ‘constitutionalism’ to mean simply ‘having a written
constitution’ is tautologically vacuous and necessarily fails to provide any
insights into the legitimacy of a constitutional government.” Edward A. Harris,
Living with the Enemy: Terrorism and the Limits of Constitutionalism, 92
COLUM. L. REV. 984, 985 (1992) (reviewing JOHN E. FINN, CONSTITUTIONS IN
CRISIS: POLITICAL VIOLENCE AND THE RULE OF LAW (1991)).
109
. H. Kwasi Prempeh, Marbury in Africa: Judicial Review and the Challenge
of Constitutionalism in Contemporary Africa, 80 TUL. L. REV. 1239, 1280
(2006) (citing Atilio A. Borón, Latin America: Constitutionalism and the
Political Traditions of Liberalism and Socialism, in CONSTITUTIONALISM AND
DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD, supra note 4, at
339 (Latin American constitutions and illegitimacy); Radhika Coomaraswamy,
Uses and Usurpation of Constitutional Ideology, in CONSTITUTIONALISM AND
DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD, supra note 4, at
160 (South Asian constitutions)).
110
. “In setting up the formal governmental structures, the North Korean
communists paid special attention to legal and political formalities, that is,
constitutionalism. Such an emphasis was important because North Korea was in
a bitter competition for legitimacy with the Republic of Korea.” Chin-Wee
Chung, The Evolution of Political Institutions in North Korea, in ASIAN
POLITICAL INSTITUTIONALIZATION 18, 22 (Robert A. Scalapino et al. eds.,
1986).

Constitutionalism may vest constitutions with a strong positive

function—no longer merely to reflect the will of the demos/ethos
from which it derives its authority to constitute, but to transform
that polity as well.111 It may serve as a bridge between the local
and the global. In addition, the methodology of successful
implementation becomes the crux of the problem of
constitutionalism as an internationalist construct.112 The
development of an international elite of judges committed to the
convergence of constitutionalist ideals is also critical to the
project,113 as is the building of transnational legal culture grounded
111
. This has been especially felt in some constitutionalist discourse after the
1980s. In an African context, the positivism of constitutionalism—sometimes
expressed in the notion of transformative constitutionalism—is emphasized.
See, e.g., Karl E. Klare, Legal Culture and Transformative Constitutionalism, 14
S. AFR. J. HUM. RTS. 146, 150 (1998) (“Transformative constitutionalism
connotes an enterprise of inducing large-scale social change through nonviolent
political processes grounded in law.”). But, there is a tradition in the West that
parallels these notions. Jaques Derrida, The Force of Law: The “Mystical
Foundation of Authority,” 11 CARDOZO L. REV. 919, 969-71 (1990) (“Perhaps it
is for this reason that justice, insofar as it is not only a juridical or political
concept, opens up for l’avenir the transformation, the recasting or refounding of
law and politics.”) (Mary Quaintance trans.). There is an American version of
transformative constitutionalism as well. See, e.g., Robert M. Cover, The
Supreme Court, 1982 Term—Forward: Nomos and Narrative, 97 HARV. L.
REV. 4, 34 (1983) (“I use the term ‘redemptive’ to distinguish this phenomenon
from the myriad reformist movements in our history. Redemption takes place
within an eschatological schema that postulates: (1) the unredeemed character
of reality as we know it, (2) the fundamentally different reality that should take
its place, and (3) the replacement of the one with the other.”); Arnon D. Siegal,
Note, Section 1983 Remedies for the Violation of Supremacy Clause Rights, 97
YALE L.J. 1827 (1988) (application in Section 1983 context).
112
. See, e.g., Jennifer Widner, Constitution Writing in Post-Conflict Settings:
An Overview, 49 WM. & MARY L. REV. 1513 (2008) (referring to and discussing
some of the literature). “Policymakers have started to ask what we have learned
and specifically whether some constitutional reform processes are more likely
than others to deliver a reduction in violence or more rights-respecting
fundamental documents.” Id. at 1513.
113
. For an analysis from the perspective of comparative constitutional law, see
Miguel Schor, Mapping Comparative Judicial Review, 7 WASH. U. GLOBAL
STUD. L. REV. 257 (2008). See also Lech Garlicki, Cooperation of Courts: The
Role of Supranational Jurisdictions in Europe, 6 INT’L J. CONST. L. 509 (2008);
Ann-Marie Slaughter, A Typology of Transjudicial Communication, 29 U. RICH.
L. REV. 99 (1994); Ann-Marie Slaughter, A Global Community of Courts, 44
HARV. INT'L L.J. 191 (2003). For a discussion of constitutionalism in its
comparative and judicial context, see Sujit Choudhry, Globalization in Search of

in Code and judge.114 As a consequence, “one of the most

significant effects of judicial empowerment through
constitutionalization has been the transformation of national high
courts worldwide into major political decisionmaking bodies and a
corresponding judicialization of ‘mega’ politics.”115 It has served a
critical role even in war and the execution of defeated leaders,
among them Saddam Hussein of Iraq.116 Yet others are suspicious
of this judicialization as part of constitutionalism. They suggest
that it is not a global judicial elite but citizen mobilization and
commitment to the constitutional settlement that is of critical
importance to a liberal constitutionalism.117 For some in this
Justification: Toward a Theory of Comparative Constitutional Interpretation,

74 IND. L.J. 819 (1999). But see RAN HIRSCHL, TOWARDS JURISTOCRACY: THE
ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (2004)
(discussing the effects of what the author suggests is a vast amount of power
given to judges and courts in a constitutional context in Canada, New Zealand,
Israel, South Africa, and the failure of this power to advance notions of social
justice to a degree greater than that possible through democratic politics).
114
. See, e.g., Charles H. Koch, Jr., Envisioning a Global Legal Culture, 25
MICH. J. INT’L L. 1 (2003).
115
. Ran Hirschl, Constitutionalism, Judicial Review, and Progressive Change:
A Rejoinder to McClain and Fleming, 84 TEX. L. REV. 471, 475 (2005). For
additional discussions, see essays in LAW ABOVE NATIONS: SUPRANATIONAL
COURTS AND THE LEGALIZATION OF POLITICS (Mary L. Volcansek ed., 1997);
Russell A. Miller, Lords of Democracy: The Judicialization of “Pure Politics”
in the United States and Germany 61 WASH. & LEE L. REV 587 (2004).
116
. See Larry Catá Backer, The Execution of Saddam Hussein and the Road to
Global “Higher” Common Law, Law At the End of the Day,
http://lcbackerblog.blogspot.com/2006/12/saddam-hussein-and-road-to-
global.html (Dec. 30, 2006, 08:49 EST) (suggesting that “the trial and execution
of Saddam Hussein represents an application of the principle that states, their
apparatus and the individuals with authority thereunder (from whatever source)
are subject to a higher law than the constitutional law of the state represent. The
execution of Saddam Hussein suggests that even the people of a sovereign state
may not vest their representatives with authority that exceeds certain standards
of conduct, and that the international community may intervene to limit those
excesses.”). The agents of this change are made up of a new class of global
jurists and lawyers that are “tied to any number of national, international and
non-governmental entities. In their hands, the customary law will acquire a life
of its own in a global system which though uncomfortable for any single nation
may provide the necessary level of mutual security to make it at least grudgingly
respected.” Id.
117
. For a powerful exposition of this perspective in the context of Latin
American constitutionalism, see Miguel Schor, Constitutionalism Through the
Looking Glass of Latin America, 41 TEX. INT'L L.J. 1 (2006).

group, the distinction between national constitutionalism and

international constitutionalism may be important, and might be
meant to serve as a brake on the creation of governance
constitutionalism at the international level.118 For still others,
political borders may be quite permeable. Constitutionalist mores
seep across borders, whether or not invited.119 Aspirational
constitutionalism is a related notion.120 Whatever its complexion,
institutionalist and comparative constitutionalism has a common
core—all assume that constitutional theory cannot be understood
as a purely domestic matter. This approach is new but growing.
At least one scholarly journal has been created to institutionalize
and create incentives for the production of this type of work within
the legal academy.121
118
. See, e.g., Ernst Ulrich-Petersmann, Multilevel Trade Governance in the
WTO Requires Multilevel Constitutionalism, in CONSTITUTIONALISM,
MULTILEVEL TRADE GOVERNANCE AND SOCIAL REGULATION 5, 7 (Christian
Joerges & Ernst-Ulrich Petersmann eds., 2006) (“[I]nternational
constitutionalism . . . provides for multilevel constitutional restraints aimed at
limiting ‘constitutional failures’ at national as well as intergovernmental levels
without pursuing state-like forms of constitutional governance at the
international level.”). See also Ernst-Ulrich Petersmann, Time for a United
Nations ‘Global Compact’ for Integrating Human Rights into the Law of
Worldwide Organizations: Lessons from European Integration, 13 EUR. J.
INT’L L. 621, n.76 (2002) (discussing six principles of international
constitutionalism).
119
. See, e.g., Gary Jeffrey Jacobsohn, The Permeability of Constitutional
Borders, 82 TEX. L. REV. 1763 (2004) (discussing examples from Israel, India,
and Ireland); Madhavi Sunder, Enlightened Constitutionalism, 37 CONN. L. REV.
891 (2005) (arguing that constitutionalism is, in effect, a public and communal
activity among the family of nations, and that the ability of progressive elements
in illegitimately constituted states to act may depend on the example of other
states).
120
. Kim Lane Scheppele, Aspirational and Aversive Constitutionalism: The
Case for Studying Cross-Constitutional Influence Through Negative Models, 1
INT'L J. CONST. L. 296, 299 (2003) (“Aspirational constitutionalism defines a
country, a nation, in terms of its future, its goals and its dreams. Other
countries’ constitutions and constitutional examples can be used to express this
aspirational sense and may be positively selected precisely in order to do this.
For example, many second- and third-wave European democracies may have
adopted the model of the Federal Constitutional Court of Germany precisely to
demonstrate that they, too, aspired to realize the constitutional principles that the
Constitutional Court had helped Germany achieve.”).
121
. Norman Dorsen & Michel Rosenfeld, Note to Readers, 1 INT'L J. CONST. L.
1 (2003) (“[T]he International Journal of Constitutional Law . . . is designed to

C. Ethnic/National Constitutionalism and the Legitimacy of

Particularized Values.
Still, the very traditionalism that is rejected by

internationalist constitutionalists has re-emerged as a potent
force.122 “There should always be the possibility, at least in liberal
democracies, to limit, legally, the effect of a norm or an act under
international law within the domestic legal order if it severely
conflicts with constitutional principles.”123
In the United States it has experienced a renaissance of

sorts among the more traditionally minded. There, influential
academics have acknowledged this sort of internationalization of
constitution making, but appear to reject its implications as
illegitimate. Among the most important of the followers of this
school is Noah Feldman who is widely associated with the
construction of the Iraqi constitution.124 For Feldman, there is a
distinction between constitutionalism and what he calls “imposed
constitutionalism.”125 The former is legitimate, and the latter is
not. Recalling the multilateral nature of constitution making in the
former Yugoslavia, East Timor, Afghanistan and Iraq, he suggests
fill a need created by the recent trend toward globalization of constitutional

norms, and by the ever-increasing use of comparative analysis in constitutional
adjudication and scholarship.”).
122
. Traditionalism is not a potent force just in the United States. See, e.g.,
Günter Frankenberg, Stranger than Paradise: Identity & Politics in
Comparative Law, 1997 UTAH L. REV. 259, 262-74 (1997) (discussing
comparative law, convergence and legal imperialism).
123
. Armin von Bogdandy, Pluralism, Direct Effect, and the Ultimate Say: On
the Relationship Between International and Domestic Constitutional Law, 6
INT’L J. CONST. L. 397, 412 (2008).
124
. For a discussion, see Backer, supra note 9, at 11. But Feldman draws on an
older learning. See, e.g., Introduction: Political Culture and Constitutionalism,
in POLITICAL CULTURE AND CONSTITUTIONALISM: A COMPARATIVE APPROACH
1, 2-3 (Daniel P. Franklin & Michael J. Baun eds., 1995) (arguing that the rule
of law but not a constitutional regime may be imposed by force—but noting the
success of more benign occupations on the evolution of constitutionalist
regimes).
125
. See Noah Feldman, Imposed Constitutionalism, 37 CONN. L. REV. 857
(2005).

certain illegitimacy because they are being drafted “in the shadow
of the gun.”126
Each of these cases has seen substantial local
participation in the constitutional process; but each
has also seen substantial intervention and pressure
imposed from outside to produce constitutional
outcomes preferred by international actors,
including NATO, the United Nations, and
international NGOs, as well as foreign states like
the United States and Germany. What is occurring
in these contexts is the latest, most sophisticated
form of imposed constitutionalism, raising its own
problems and challenges.127
Feldman’s argument is subtle but perverse. Imposing
constitutional orders on Germany and Japan a half-century or more
ago might be seen as a good thing. But the conditions ushered in
by those constitutions have made their replication impossible. And
the impossibility lies precisely in the nature of the success of those
imposed constitutions within the transnational legal order. “Yet
there is something theoretically and practically distinctive about
imposed liberal constitutionalism today: it takes place against a
backdrop of widespread commitment to democratic self-
determination.”128 Against this, Feldman offers ancient wine in a
postmodern bottle: looking back on the Japanese experience from
this side of the Second World War, he states: “A half century
later, one cannot imagine this sort of acquiescence being
126
. Id. at 858.
127
. Id. at 858-59 (citations omitted).
128
. Id. at 859. For a different view, based on the German postwar experience,
see Michael J. Baun, The Federal Republic of Germany, in POLITICAL CULTURE
AND CONSTITUTIONALISM: A COMPARATIVE APPROACH, supra note 120, at 79,
80 (“The experience of the Federal Republic, therefore, appears to support a
different conclusion about the relationship between institutions and culture: that
the political culture of a nation lacking strong democratic traditions can indeed
be successfully shaped or molded along democratic lines, given the proper
institutional framework and supportive economic and external political
conditions.”). Baun argues that “[i]n the case of the Federal Republic, the
democratic norms and principles of its constitutional regime appear, over a
relatively short period of time, to have become ‘ingrained’ in the German body
politic.” Id.

reproduced in most places in the world. Today a new constitution

must be understood as locally produced to acquire legitimacy.”129
This approach to constitutionalism is grounded in an

implicit ordering of substantive constitutional values in which
democracy and self-determination are privileged and other notions
of substantive norms—particularly that cluster of behavior norms
limiting the power of states against individuals—is
subordinated.130 It essentially conflates constitutionalism with
these two elements. This conflation makes it easy to take the next
step—embracing an implication that the other components of
constitutionalism might be relegated to an inferior place in the
hierarchy of constitutional importance. From these substantive
values, virtually all constitutional expression is legitimate—
principally because or to the extent that it reflects the will of the
majority. This privileging, “grounded in the democratic theory of
self-determination, perfectly frames the conflict between
egalitarianism and autonomy that lies at the heart of the
contemporary problematics of imposed constitutionalism.”131
From this privileging of democracy emerges a faith in
majoritarianism that translates for Feldman, when combined with
self-determination as the mechanism for producing an act of
sovereign will,132 into a basis for legitimating theocratic
129
. Feldman, supra note 124, at 859.
130
. This is, of course, hardly new to Feldman. See, e.g., Welshman Ncube,
Constitutionalism and Human Rights: Challenges of Democracy, in THE
INSTITUTIONALISATION OF HUMAN RIGHTS IN SOUTHERN AFRICA 1, 14 (Pearson
Nherere & Marina D'Engelbronner-Kolf eds., 1993) (“Representative
government is at the heart of democracy and constitutionalism. Without it is
idle to speak of the constitutional protection of human rights.”).
131
. Feldman, supra note 124, at 862 (“Advocates of equality, typically
outsiders, want to press for a constitutional guarantee of equality that will
expressly trump any competing considerations derived from religion, or indeed
from other forms of democratic politics. Meanwhile local elites—often backed
by majorities empowered by the democratization process—would prefer to see a
less complete victory for egalitarian values. They ground their arguments in the
foundational claim that the constitution is meant to express the will of the
people, understood in a majoritarian or super-majoritarian fashion.”) (citations
omitted).
132
. For another view of self-determination in a similar context, see Abdullahi
An-Na’im, The National Question, Secession and Constitutionalism: The
Mediation of Competing Claims to Self-Determination, in CONSTITUTIONALISM

constitutionalism.133 In Africa, for example, faith has not always

produced the desired effects.134
Feldman suggests that transnational secular

constitutionalism is in part an American product—but a product
bereft of theory and heavy on politics.135 Its principal failure is a
failure at the core of the normative premises of written
constitutionalism itself—“which is that the constitutional
document ought to guide actual realities of government
practice.”136 As an alternative, Feldman suggests a sort of
capitalist version of constitutionalism: “when constitutional norms
are adopted by political elites as a matter of self-interest.”137 But
AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD, supra note 4,

at 105.
133
. Feldman, supra note 124, at 877-85. “It is therefore a little strange to hear
advocates of equality for women or minorities pressing the argument that new
constitutions must not provide too great a role for Islam because doing so would
be undemocratic.” Id. at 864-65. But see, e.g., Backer, supra note 9, at 11;
Hannibal Travis, Freedom or Theocracy?: Constitutionalism in Afghanistan
and Iraq, 3 NW. U. J. INT'L HUM. RTS. 4, ¶ 2 (2005), available at
http://www.law.northwestern.edu/journals/jihr/v3/4/travis.pdf; SANFORD
LEVINSON, CONSTITUTIONAL FAITH 150 (1988) (“[C]onstitutionalism is an
important limit to the value of majority rule precisely because it incarnates a
value hierarchically superior to majority rule”).
134
. “The failure by recent constitutions to avoid the danger of democratic
majoritarianism descending into the tyranny of the majority does not auger well
for constitutionalism in Africa.” Charles M. Fombad, Challenges to
Constitutionalism and Constitutional Rights in Africa and the Enabling Role of
Political Parties: Lessons and Perspectives from Southern Africa, 55 AM. J.
COMP. L. 1, 44 (2007).
135
. Feldman blames imposed constitutionalism on a cabal of Americas: “The
answer involves the unlikely bedfellows of the human rights left, the
neoconservative democracy exporters, and the evangelical right; to unfold it
properly requires understanding the historical context of the nation building
projects undertaken at the behest of the United States in the aftermath of
September 11.” Feldman, supra note 124, at 865. The argument is further
elaborated upon. See id. at 865-77.
136
. Id. at 872.
137
. Id. at 885 (emphasis in original) (“I am not arguing that
constitutionalism does not work, that it is not a real phenomenon, or
that in its implementation it invariably masks immediate self-interest of
political elites. To the contrary, constitutionalism is a tremendously
powerful and durable mode of government. But to succeed, it must get
off the ground through a process of adoption by localized self-interest,

he is cautious in his claims as well: “My more modest claim is

that, where the international community or the occupier lacks the
will or capacity for sustained transformation of constitutional
norms over time, it would be mistaken to impose norms that are
perceived by local political actors as antithetical to their
interests.”138 This is a formalist constitutionalism with hopes
eventually for an evolution to a substantive framework like those
of other states. But this formal constitutionalism comes with no
guarantee of substantive evolution. Indeed, the opposite might be
true—Feldman’s form of constitutionalism might well solidify a
normative constitutional sense based on the self-interest of
governing elites. As long as the privileged values of democracy
(majoritarianism) and self-determination are respected, deviations
from substantive international constitutionalism can be excused—
and pressure for the adoption of provisions reflecting the
substantive (usually human rights oriented) values of the
international community can be rejected as an illegitimate
imposition on the democratic political order.139 “This is especially
true when the imposed norms are understood locally to contradict
important symbolic features of the constitutional order, such as the
role of Islam.”140 Ironically, other constitutionalists have posited
that even this stance, so deeply rooted in a perverse localism, is
itself of concern because it suggests that what passes for
constitutionalism elsewhere is not up to that of those nation-states
which may no longer “impose” the normative foundations of its
not out of episodic external pressure that will soon be lifted.” Id. at
886).
138
. Id. at 887-88.
139
. One student of the Iraqi constitution nicely summed up this notion. “While
the enshrinement of morals in a constitution should not come to embody the
moral command of the majority group's will upon all individuals, a complete
denial of that moral identity across government institutions would be equally
repugnant to any substantive approach to rights.” Joseph Khawam, Note, A
World Of Lessons: The Iraqi Constitutional Experiment in Comparative
Perspective, 37 COLUM. HUM. RTS. L. REV. 717, 754 (2006). The ultimate aim,
nicely reflected in this student comment, is balancing through which sort of
welfare maximization might be possible. “Ultimately, moral identity, in terms
of secular or religious constitutionalism, must be defined in a way that is
consistent with maximizing human rights, and hence democracy.” Id.
140
. Feldman, supra note 121, at 888.

own indigenous constitutionalism.141 On the other hand,

Feldman’s contextually driven hopefulness appears in at least one
strain of Palestinian constitutionalist discourse, as well.142 It has
been powerfully made in the context of the post-colonial
conundrum of sub-Saharan African constitutionalism where
transnationalism might mask post-colonial dysfunction.143
There is a bit of nostalgia about this, which is both deeply

ingrained in American legal philosophy and infused with politics
141
. See Madhavi Sunder, Commentary, Enlightened Constitutionalism, 37
CONN. L. REV. 891 (2005). Sunder faults Feldman for a bit of stereotyping, the
effect of which is to imply that the religious Middle East cannot measure up to
the human rights standards of the West. Id. at 893 (“[T]he Middle East is
religious and patriarchal, the Western world secular and egalitarian.”). “While
Feldman sees democracy in the Muslim world as homegrown, he seems to
imagine egalitarianism as largely exogenous to Islamic democracy.” Id. at 892.
Ironically, Sunder moves from nationalist constitutionalism to a convergence-
based, internationalist non-institutional constitutionalism to fit his model of a
kinder and worldly institutional Islamic constitutionalism. Again, from his
introduction: “Transnational influence is inescapable; political and cultural
autarky is hard to imagine. Power and ideas hardly pause at passport controls.
And diverse peoples, even governing elites (especially in tentative times), look
across borders for validation.” Id. at 893.
142
. Zaha Hassan, The Palestinian Constitution and the Geneva Accord: The
Prospects for Palestinian Constitutionalism, 16 FLA. J. INT'L L. 897, 920 (2004)
(“Rather than serving a legitimating function or setting out the state's
programmatic mission, the Palestinian draft constitution appears to be aimed at
communicating its vision of how the institutions of power should be organized
in a future Palestinian state. Clearly delineating the institutions of power may
serve to regain the trust of the Palestinian people in their government, encourage
transparent and accountable administration of the state, and establish a floor for
the ongoing attempts to find a just resolution to the Palestine-Israel conflict.”)
“The fact that a constitution may be drafted for purposes other than setting up
constitutionalism does not mean that constitutionalism may not take root.” Id.
(referencing NATHAN J. BROWN, CONSTITUTIONS IN A NONCONSTITUTIONAL
WORLD: ARABIC BASICS LAWS AND THE PROSPECTS FOR ACCOUNTABLE
GOVERNMENT 103 (2001)). There is a relationship here to aspirational
constitutionalism. See Scheppele, supra note 116.
143
. See Ruth Gordon, Growing Constitutions, 1 U. PA.. J. CONST. L. 528, 582
(1999) (“The example of Somaliland portends a possible different path; a path
where constitutions are built upon the culture, knowledge, and experiences of
the people who will breathe life into them and make them living documents that
truly matter in the lives of those whom they will govern.”) (emphasis added).

of ethnocentric privilege through constitutionalism.144 It is also

infused with a privileging of historicism that serves both to benefit
and legitimate a particular and highly contextualized vision of
reality.145 It is suspicious of universals.146 However, it may rely
on values that appear to bleed across political borders. It is only a
short step from Feldman’s “imposed constitutionalism” to
Professor Jed Rubenfeld’s “international constitutionalism.”147
Feldman, of course, posits an internalized constitutionalism from
an international framework; Rubenfeld works from the traditional
144
. See generally, ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY AND THE
MAKING OF INTERNATIONAL LAW (2004). For its application within the internal
constitutional politics of a state see, for example, Cass R. Sunstein,
Constitutionalism and Secession, 58 U. CHI. L. REV. 633 (1991) (suggesting an
ethnos/demos orientation to higher law by focusing on popular pre-commitment
as inherent in legitimate constitutionalism).
145
. “Constitutional historicism aspires to definitive historical interpretations,
and asserts, usually via the fiction of collective consent, that history itself has
constitutional authority.” Amy Kapczynski, Historicism, Progress and the
Redemptive Constitution, 26 CARDOZO L. REV. 1041, 1112 (2005). See also,
Martin S. Flaherty, History “Lite” in Modern American Constitutionalism, 95
COLUM. L. REV. 523, 526 (1995); G. Edward White, The Arrival of History in
Constitutional Scholarship, 88 VA. L. REV. 485 (2002) (ahistoricity and the
transformation of American constitutionalism from republican to democratic
centered). For a critique of the conventional American constitutionalist history,
see Christian G. Fritz, Fallacies of American Constitutionalism, 35 RUTGERS
L.J. 1327, 1348 (2004) (“The standard narrative of American constitutionalism
inadequately explains how Americans engaged in drafting, revising, and
debating the meaning of written constitutions. Much of that experience is either
ignored or dismissed as being aberrational and of no meaningful consequence to
‘American’ constitutionalism.”).
146
. See, e.g., Silas J. Wasserstrom & Louis Michael Seidman, The Fourth
Amendment as Constitutional Theory, 77 GEO. L.J. 19, 106 (1988)
(“[C]onstitutionalism largely consists of the effort to define and manipulate
context. Thus, the act of drafting a constitution is best understood as an effort at
self-definition. By writing and adopting a constitution, a political community
defines its boundaries as a political community, and thereby establishes the
system from which legitimate outcomes derive.”).
147
. See, Jed Rubenfeld, Commentary, Unilateralism and Constitutionalism, 79
N.Y.U. L. REV. 1971, 1974 (2004). Like Feldman, Rubenfeld privileges
democracy (as he understands it) and self-determination (though a self
expression in ethically unique constitutionalism) as a consequence of which any
form of constraint on ethnic self-expression through constitutions is anti-
democratic and, therefore, illegitimately constitutional. See id. at 1975.

state as the highest source of a power framework.148 But both

reflect an older tradition which, as expressed by others, posits a
constitutionalism that is inward looking.149 Both embrace the
assumption that each political community is unique (otherwise
there would be no basis for independence),150 and that uniqueness
must find political expression in the foundational constitution of
the state.151 This traditional approach to constitutionalism has
148
. See JED RUBENFELD, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL
SELF-GOVERNMENT 54-58, 183-84 (2001) (proffering a vision of democratic
constitutionalism grounded in a demos which seeks to implement its
fundamental norm standards reflecting its unique legal and political culture).
149
. For a taste of the strictly limiting variations in traditional elite American
discourse, see, for example, the essays in CONSTITUTIONALISM: PHILOSOPHICAL
FOUNDATIONS (Larry Alexander ed., 1998); CONSTITUTIONALISM: THE
PHILOSOPHICAL DIMENSION (Alan S. Rosenbaum ed., 1988);
CONSTITUTIONALISM: NOMOS XX (J. Roland Pennock & John W. Chapman
eds., 1979).
150
. These notions, of course, are foundational to the American experience with
independence as expressed in the American Declaration of Independence, July
2, 1776. On the modern expression of theories of demos and political
constitution, see Brunner v. European Union Treaty Bundesverfassungericht
[BVerfG] [Federal Constitutional Court] Oct. 12, 1993, 1 Common Law Market
Reports [C.M.L.R.] 57(89), 1994 (F.R.G.). For a commentary from an
Europeanist perspective, see Manfred Zuleeg, What Holds Nations Together?
Cohesion and Democracy in the United States of America and in the European
Union, 45 AM. J. COMP. L. 505 (1997). Yet, the very reasons that supported the
idea that a Europe without a demos was incapable of assertions of legitimate
constitutional will, when inverted, could be used to assert that, indeed, such a
demos (and will) already existed—the issue was merely empirical rather than
theoretical. See, e.g., Larry Catá Backer, The Euro and the European Demos: A
Reconstitution, 21 Y.B. EUR. L.13 (2002); Mattias Kumm, Beyond Golf Clubs
and the Judicialization of Politics: Why Europe has a Constitution Properly So
Called, 54 AM. J. COMP. L. 505, 528 (2006).
151
. The relationship between demos, as a political sorting device and ethnos,
serving a similar purpose, has tended to be complicated in political theory. See
Larry Catá Backer, Reifying Law - Government, Law, and the Rule of Law in
Governance Systems, 26 PENN ST. INT’L L. REV. 521, 539 (2008) (“For the great
state builders of the nineteenth century, from Hamilton and Thomas Paine in the
United States, to the state builders all across Europe, and ultimately the builders
of totalitarian state regimes in Europe in the early twentieth century, ‘the images
of legal science and legal practice were (and still certainly are) mastered by a
series of simple equivalences. Law = statute; statute = the state regulation that
comes about with the participation of the representative assembly. Practically
speaking, that is what is meant by law when one demanded the “rule of law” and
the “principle of the legality of all state action” as the defining characteristic of

proven problematic for a theory of legitimacy of state constitutions

within a federal system—it is higher law, yet not constitutional in
the larger sense.152 On the other hand, federalism might suggest a
more pluralistic approach to national constitutionalism153 or an
escape from its limits.154 It also conflicts with a different
traditionalism ancient within the American constitutional
context—natural law constitutionalism.155 Natural law
constitutionalism, ironically, can posit a sort of transcendent
universalism.156 But the universalism of this form of
constitutionalism emanates from outside the possibility of human
will or consent.157 However, it can as easily serve to strengthen the
the Rechtsstaat.’”) (quoting CARL SCHMITT, LEGALITY AND LEGITIMACY 18

(Jeffrey Seitzer ed. & trans., Duke University Press 2004) (1932)).
152
. For a discussion, see James A. Gardner, What Is a State Constitution?, 24
RUTGERS L.J. 1025, 1028-30 (1993). But see, Jack L. Landau, Should State
Courts Depart from the Fourth Amendment? Search and Seizure, State
Constitutions, and the Oregon Experience, 77 MISS. L.J. 369, 372-74 (2007).
For a revision of the usual story of the relationship between state and federal
constitutionalism, see Christian G. Fritz, Recovering the Lost Worlds of
America's Written Constitutions, 68 ALB. L. REV. 261 (2005).
153
. See, e.g., Mark D. Rosen, The Surprisingly Strong Case for Tailoring
Constitutional Principles, 153 U. PA. L. REV. 1513, 1592 (2005) (multilevel
constitutional principles need not apply uniformly to all levels of government).
154
. See William J. Brennan, Jr., Foreword to Symposium on the Revolution in
State Constitutional Law, 13 VT. L. REV. 11, 11 (1988). See, e.g., Robert K.
Fitzpatrick, Note, Neither Icarus Nor Ostrich: State Constitutions as an
Independent Source of Individual Rights, 79 N.Y.U. L. REV. 1833 (2004).
155
. See, e.g., Corwin, supra note 68; Christopher L.M. Eisgruber, Comment,
Justice Story, Slavery, and the Natural Law Foundations of American
Constitutionalism, 55 U. CHI. L. REV. 273, 288 (1988), Helen K. Michael, The
Role of Natural Law in Early American Constitutionalism: Did the Founders
Contemplate Judicial Enforcement of "Unwritten" Individual Rights?, 69 N.C.
L. REV. 421, 447 (1991), and Kaczorowski, supra note 68. For its modern
context, see RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE
PRESUMPTION OF LIBERTY 53-86 (2004).
156
. See David T. Butleritchie, Organic Constitutionalism: Rousseau, Hegel and
the Constitution of Society, 6 J. L. SOC’Y 36 (2005).
157
. In this sense, natural law constitutionalism comes closest to theocratic
constitutionalism, though it may not be the same thing. Both would look to the
universal, a universal beyond any particular constitutional community, but
natural law constitutionalism would not necessarily seek those values within a
particular universal institutionalized religious community. For a discussion in
the context of judicial resistence to the slavery protections in the antebellum
American constitution, see, Christopher L.M. Eisgruber, Justice Story, Slavery,
and the Natural Law Foundations of American Constitutionalism, 55 U. Chi. L.

contextualist notions of traditional state (demos/ethnos) based

constitutionalism.158
For traditionalists, the core question of constitutionalism is

the process and substantive components of governmental
structuring uniquely suited and appropriately expressed by a
singular political community composed of a unified
demos/ethnos.159 Its source is democratic legitimacy expressed
through the will of a unique people (demos), exercising its general
will through equal citizenship rights.160 In the Western (and
Rev. 273, 288 (1988) (judicial employment of natural law notions in slavery
law); Charles Grove Haines, The Law of Nature in State and Federal Judicial
Decisions, 25 Yale L.J. 617, 628 (1916) (“Justice Chase believed that there are
principles in our free republican governments which will determine and overrule
an apparent and flagrant abuse of positive law. An act of the legislature contrary
to the first principles of the social compact cannot, he thinks, be considered a
rightful exercise of legislative authority.”).
158
. For example, David Butleritchie argues for a contextual constitutionalism
grounded in natural law. See Butleritchie, supra note 152, at 41 (“By calling
such a process organic, I hope to connote that such a process is most healthy and
robust when it is left to grow from within its own particular context. In other
words, an organic constitution is one that is formed in the crucible of a distinct
social and political context. To try to deny that context by imposing universal
norms, in this case by laying so-called fundamental principles of
constitutionalism across a developing or re-developing society, is both
dangerous and troubling.”). “[M]y use of the term organic is meant to convey a
belief that constitutional formation should be homegrown in order for it to take
root and flourish.” Id.
159
. “Although law is by no means static, legal evolution in each country is
distinct and will produce vastly different outcomes. Far from converging over
time, legal institutions remain different.” KATHARINA PISTOR & PHILIP A.
WELLONS ET AL., THE ROLE OF LAW AND LEGAL INSTITUTIONS IN ASIAN
ECONOMIC DEVELOPMENT 1960-1995, at 35 (1999) (“Law and legal evolution
are part of the idiosyncratic historical development of a country, and that they
are determined by multiple factors, including culture, geography, climate, and
religion.”).
160
. “Within the nation-state context, it assumes a common identity on which
one can base the expression of the general political will via parliamentary
representation.” Stijn Smismans, New Governance--The Solution for Active
European Citizenship, or the End of Citizenship?, 13 COLUM. J. EUR. L. 595,
616 (2007) (“Consequently ‘citizens are deprived of their particularities and
their embeddedness in particular communities, cultures, and social roles and
conceived as abstract political beings whose opinions converge around a concept
of the public good which is more or less shared by all because all are equals.
Only equals can form a general will.’”) (quoting, in part, Ulrich K. Preuß, The

principally American) context, those rights expressions target the

power of the state, as well as the exercise of state power by or
through the state apparatus.161 As commonly understood, “the
basic idea behind constitutionalism is preventing the abuse of state
power. Constitutionalism is defined as a ’determination to bring . .
. government under control and to place limits on the exercise of
its power.’”162 National constitutionalism, then, serves as a nexus
point for the identification and vertical ordering of a system of
substantive and process values, which might reflect the unique
national will of the territorial sovereigns.163 These usually include
Constitution of a European Democracy and the Role of the Nation States, 12

RATIO JURIS 417, 423 (1999). See also, Christian G. Fritz, Fallacies of
American Constitutionalism, 35 RUTGERS L.J. 1327, 1327 (2004) (“[T]he idea
that a written constitution reflects the will of the sovereign people--both
empowers and limits American government.”).
161
. It is in this vein that Martin Redish, for example, can speak of American
constitutionalism. See Martin H. Redish, Response, Good Behavior, Judicial
Independence, and the Foundations of American Constitutionalism, 116 YALE
L.J. 139, 152-54 (2006) (responding to Saikrishna Prakash & Steven D. Smith,
How to Remove a Federal Judge, 116 YALE L.J. 72 (2006)). Redish suggests
that “American constitutionalism, as I use it, links two distinct, albeit
intertwined, levels of theoretical analysis. One is appropriately described as
‘macro’ and the other as ‘micro.’” Id. at 152. Macro constitutionalism looks to
“the basic notion of limited government, confined not solely by the will of the
majority or the decisions of the majoritarian branches of government, but also
by a binding, written constitutional structure, subject to revision, repeal, or
amendment only by an intentionally cumbersome supermajoritarian process.”
Id. Micro constitutionalism looks to the social contract, positing “that
government will not employ its power in an arbitrary, invidious, or irrational
manner against the individuals to whom it is accountable”. Id. at 153. See also,
Richard S. Kay, American Constitutionalism, in CONSTITUTIONALISM:
PHILOSOPHICAL FOUNDATIONS 16 (Larry Alexander ed., 1998); H. JEFFERSON
POWELL, THE MORAL TRADITION OF AMERICAN CONSTITUTIONALISM: A
THEOLOGICAL INTERPRETATION 4 (1993).
162
. Yasmin Dawood, The Antidomination Model and the Judicial Oversight of
Democracy, 96 GEO. L.J. 1411, 1434 (2008) (quoting, in part, M.J.C. VILE,
CONSTITUTIONALISM AND THE SEPARATION OF POWERS 2 (Liberty Fund, Inc. 2d
ed. 1998) (1967)).
163
. “Neither constitutions nor constitutionalism can be transferred. The point
should be obvious, but is often obscured by proprietary claims to the correct
model.” Daniel S. Lev, Social Movements, Constitutionalism, and Human
Rights: Comments from the Malaysian and Indonesian Experiences, in
CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY
WORLD 139, 141 (Douglas Greenberg et al. eds., 1993) (“The dimensions of
French constitutionalism are not altogether clear to Americans or to Japanese,

democracy (however defined) and rule of law.164 But there are

other values, as well.165 Still, these substantive notions themselves
are value laden and ambiguous.166 In the form of “popular
constitutionalism,”167 there is a parallel to Feldman’s
the Indian or Norwegian cases seem odd anywhere else, and so on, because the
political compromises worked out historically, the tacit social and economic
agreements made along the way, the play of local habit and values and cultural
assumptions, the ways in which change proceeds, are all taken for granted at
home but are unfathomable away.”).
164
. One European scholar defines national constitutionalism, for example, as
“constituting and limiting government powers for the protection of equal rights
of citizens by means of constitutional rules of higher legal rank.” Ernst Ulrich-
Petersmann, Multilevel Trade Governance in the WTO Requires Multilevel
Constitutionalism, in CONSTITUTIONALISM, MULTILEVEL TRADE GOVERNANCE
AND SOCIAL REGULATION 5, 6 (Christian Joerges & Ernst-Ulrich Petersmann
eds., 2006). See also Joel P. Trachtman, The Constitutions of the WTO, 17 EUR.
J. INT'L L. 623, 630 (2006) (“[C]onstitutionalization must be understood in at
least two, and perhaps three, dimensions. In the international setting, this
concept has a ‘levels’ problem. In a domestic setting, one central hallmark of
constitutionalization is the restraint of the state - setting limits on the legislative
capacity of the state.”).
165
. See, e.g., Introduction: Political Culture and Constitutionalism, in
POLITICAL CULTURE AND CONSTITUTIONALISM: A COMPARATIVE APPROACH,
supra note 120, at 6-7 (discussing constitutionalism and the uniqueness of
political culture); GIOVANNI SARTORI, THE THEORY OF DEMOCRACY REVISITED
308-09 (1987) (addressing constitutionalism and rule of law within political
systems—requiring a written constitution memorializing a higher law
interpreted by an independent judiciary and lawmaking is constrained by
protections against arbitrary action and confined to a representative legislature);
John Elster, Constitutionalism in Eastern Europe: An Introduction, 58 U. CHI.
L. REV. 447, 465 (1991) (noting constitutionalism as a moral or ethical
perception).
166
. For rule of law ambiguity, see Backer, supra note 59, at 329. On
democracy and constitutionalism in Africa, see, for example, Okoth-Ogendo,
supra note 104, at 65.
167
. See, e.g., MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE
COURTS (2000). See also LARRY D. KRAMER, THE PEOPLE THEMSELVES:
POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); CASS R.
SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME
COURT (2001). This approach is the subject of a substantial criticism of Scott D.
Gerber, The Court, the Constitution, and the History of Ideas, 61 VAND. L. REV.
1067, 1069 n.5 (2008) (citing additional analysis and commentary). See also
KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY:
THE PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN
U.S. HISTORY (2007); Stephen Gardbaum, Limiting Constitutional Rights, 54
UCLA L. REV. 789, 794-95 (2007) (noting that popular constitutionalism adds a

majoritarianism as the foundational principle of

constitutionalism.168 But therein lies a powerful critique as well:
At precisely the same moment that some
constitutional theorists are highlighting popular
involvement in the mechanics of constitutional
interpretation, political scientists tell us that
participation and interest in politics are declining.
Moreover, popular interpretive opinions are often
based on limited information, and are highly
susceptible to manipulation by elites. . . . The result
is an academic construction where "the People"
look a lot like Woody Allen's Zelig, inhabiting
whatever incarnation is needed to conform with the
theoretical backdrop.169
Nonetheless, the notion of political power in the people, both as an
abstraction and as a physical force for change170 is powerful. The
notions underlying popular constitutionalism in the United States
also have analogues elsewhere.171 Constitutionalism, nationalism,
and contextualized choice conflate.
majoritarian check on the judiciary); Richard Murphy, The Brand X

Constitution, 2007 BYU L. REV. 1247 (using judicial doctrines of administrative
deference as a basis for constraining the constitutional interpretive power of the
courts).
168
. This parallel extends to the definitional difficulties of the concept of the
popular in popular constitutionalism. See, e.g., Erwin Chemerinsky, In Defense
of Judicial Review: The Perils of Popular Constitutionalism, 2004 U. ILL. L.
REV. 673, 675-76 (noting that “there is no precise definition of the concept. . . .
A major frustration in discussing the body of scholarship arguing for popular
constitutionalism is its failure to define the concept with any precision.”).
169
. Doni Gewirtzman, Glory Days: Popular Constitutionalism, Nostalgia, and
the True Nature of Constitutional Culture, 93 GEO. L.J. 897, 900 (2005).
170
. An example is the fascination with the initially successful and ultimately
ambiguous consequences of the Ukraine’s Orange Revolution. See, e.g.,
ANDREW WILSON, UKRAINE'S ORANGE REVOLUTION (2005); Adrian
Karatnycky, Ukraine's Orange Revolution, 84 FOREIGN AFFAIRS 35, 35-52
(2005); and the failed revolutionary attempt in China culminating in the episode
at Tiananmen Square in 1989. See BAOGANG HE, THE DEMOCRATIZATION OF
CHINA (1996); Tsao Tsing-yuan, The Birth of the Goddess of Democracy, in
POPULAR PROTEST & POLITICAL CULTURE IN MODERN CHINA 140 (Jeffrey N.
Wasserstrom & Elizabeth J. Perry eds., 1994).
171
. See, e.g., HIRSCHL, supra note 109 (democratic politics provides a legitimate
vehicle for advancing constitutionalist goals of social and political justice);
Youngjae Lee, Law, Politics, and Impeachment: The Impeachment of Roh Moo-

D. The Peculiarities of an American Constitutionalist Ideology.
In its American form, the concept of popular

constitutionalism remains inward looking but becomes a political
device—an rhetorical trope masking an agenda the goal of which is
to undo the constitutional settlement of the early nineteenth
century in the United States in which constitutional interpretation
was deemed to be judicial in character and thus the subject of the
exercise of judicial power.172 For Americans, the question of
constitutionalism, especially in its form of judicial interpretive
power, reduces itself to three questions, all relating to power.173
The first focuses on the legitimacy of interpretive methods. The
object is to avoid judicial despotism by forcing judicial discourse
to privilege forms of analysis that reduce the ability of judges to
substitute their personal predilections for that of the community
reflected in the constitution.174 Similar issues appear within
Islamic jurisprudence.175
hyun from a Comparative Constitutional Perspective, 53 AM. J. COMP. L. 403

(2005) (on the popular control element of constitutionalism). But see ALEC
STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN
EUROPE (2000) (discussing the effects of European Constitutional Courts in
advancing human rights in Europe).
172
. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). For interesting
insights on the tensions in the early Republic in this respect, see Robin West,
Tom Paine’s Constitution, 89 VA. L. REV. 1413 (2003). For a discussion in the
context of the 2000 Presidential election and the judicial opinions generated in
its aftermath, see Larry Catá Backer, Race, “The Race,” and the Republic:
Reconceiving Judicial Authority After Bush v. Gore, 51 CATH. U. L. REV. 1057
(2002).
173
. “The key concept of constitutionalism is power, defined in this way for
present purposes: Power is the ability or capacity to make decisions affecting
the values of others, the ability or capacity to impose deprivations and bestow
rewards so as to control the behavior of others.” Arthur Miller, Pretense and
Our Two Constitutions, 54 GEO. WASH. L. REV. 375, 381 (1986).
174
. See, e.g., WILLIAM N. ESKRIDGE ET AL., LEGISLATION AND STATUTORY
INTERPRETATION (2d ed. 2006); ANTONIN SCALIA, A MATTER OF
INTERPRETATION: FEDERAL COURTS AND THE LAW (1997).
175
. See, e.g., Asifa Qurashi, Interpreting the Qur’an and the Constitution:
Similarities in the Use of Text, Tradition and Reason in Islamic and American
Jurisprudence, 28 CARDOZO L. REV. 67 (2006).

The second targets the use of foreign sources,176now

understood in its larger context as a battle over control of the
essence of the character of the state and its relationship to other
states and the community of nations.177 The other targets the
constitutional power of the legislature, the popular in popular
constitutionalism.178 Yet, even here, there is little to suggest a
limitless majoritarianism, both for fear of a descent into tyranny
and because of the popularity of the notion of entrenchment in
constitutional law; and so back to the principle of rechtsstaat, this
time focused on the constitutional authority of the legislature.179
Foundational to this approach to constitutionalism, a

nationalist constitutionalism, then, is the assumption of the
uniqueness of each national community.180 It is a short step from
176
. See, e.g., Judith Resnick, Law's Migration: American Exceptionalism,
Silent Dialogues, and Federalism's Multiple Ports of Entry, 115 YALE L.J. 1564
(2006) (especially Part III); Roger P. Alford, In Search of a Theory for
Constitutional Comparativism, 52 UCLA L. REV. 639 (2005) (presenting a
framework for approaching the legitimacy of the use of foreign materials by
American courts); Mark Tushnet, The Possibilities of Comparative
Constitutional Law, 108 YALE L.J. 1225 (1999).
177
. Compare Kenneth Anderson, Foreign Law and the U.S. Constitution, POL’Y
REV. No. 131, June & July 2005, at 1 n.2, available at
http://www.policyreview.org/jun05/anderson.html; Rex D. Glensy, Which
Countries Count?: Lawrence v. Texas and the Selection of Foreign Persuasive
Authority, 45 VA. J. INT’L L. 357, 362 (2005); with Ruth Bader Ginsburg, “A
Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative
Perspective in Constitutional Adjudication (Apr. 1, 2005), available at
http://www.asil.org/events/AM05/ginsburg050401.html; Anne-Marie Slaughter,
supra note 109, at 191. For an ironic commentary in an internationalist contest,
see James Allan & Grant Huscroft, Constitutional Rights Coming Home to
Roost? Rights Internationalism in American Courts, 43 SAN DIEGO L. REV. 1
(2006).
178
. For commentary, see Owen Fiss, Between Supremacy and Exclusivity, 57
SYRACUSE L. REV. 187, 192-94 (2007); William N. Eskridge, Jr., Some Effects
of Identity-Based Social Movements on Constitutional Law in the Twentieth
Century, 100 MICH. L. REV. 2062 (2002) (focusing on popular movements to
affect legislative effects).
179
. See, e.g., Michael C. Dorf, Courts, Reasons, and Rules, 19 Q.L.R. 483
(2000); SCALIA, supra note 170, at 37-41.
180
. This sort of nationalist constitutionalism is reinforced not only by traditional
notions of social contract but by notions of cultural and ethnic solidarity or even
by a post colonial experience. See generally, Resnick, supra note 172, at 1564
(discussing and critiquing in the American context).

Feldman’s imposed constitutionalism to Mark Tushnet’s

skepticism about the transnational element to constitutionalism.181
It is an even smaller step, though one tinged with irony, from
Tushnet to that of critical legal scholars, who suspicious of
internationalism as a tool of hegemony, sometimes seek refuge in
plural constitutionalism,182 or a dynamic constitutionalism,183 or a
redemptive constitutionalism.184 Ironically, pluralist or redemptive
constitutionalism in some forms can exhibit a refusal to be
confined to a particular national context, especially in the context
of citizenship and participatory rights of sub-national or identity
groups whose membership exist across states.185
Constitutionalism, at least at the micro level, at the level

of its constituent values, becomes a proxy for power games for
control of the mechanics of interpretation.186 To that extent, values
181
. See Mark Tushnet, Some Skepticism about Normative Constitutional Advice,
49 WM. & MARY L. REV. 1473, 1474 (2008) (“I suggest that what primarily
determines the content of constitutions are the intensely local political
considerations "on the ground" when the constitution is drafted, and therefore
that normative recommendations about what “should” be included in a
constitution or constitution-making process are largely pointless.”).
182
. See, e.g., GAVIN W. ANDERSON, CONSTITUTIONAL RIGHTS AFTER
GLOBALIZATION 148 (2005).
183
. One of the most interesting expositions of this sort of dynamism combines
both the element of movement and the core progressive constitutionalist
assumptions about anti-subordination and social justice. See, RUTI G. TEITEL,
TRANSITIONAL JUSTICE (2000) (discussing transitional constitutionalism as both
constituting the state apparatus and transforming the society from which it
arises).
184
. See, e.g., Norman W. Spaulding, Constitution as Countermonument:
Federalism, Reconstruction, and the Problem of Collective Memory, 103
COLUM. L. REV. 1992 (2003); Robert Cover, The Supreme Court, 1982 Term--
Forward: Nomos and Narrative, 97 HARV. L. REV. 4, 34-36 (1983).
185
. In a sense, this approach suggests that there are characteristics of communal
membership that perhaps ought to be privileged over citizenship in political
states, or that the content and scope of citizenship ought to be splt to refkect
membership in multiple communities among individuals. See, e.g., DONNA LEE
VAN COTT, THE FRIENDLY LIQUIDATION OF THE PAST (2000) (regarding
differentiated citizenship); Robert Justin Lipkin, Liberalism and the Possibility
of Multicultural Constitutionalism: The Distinction between Deliberative and
Dedicated Cultures, 29 U. RICH. L. REV. 1263 (1995) (discussion of variants of
multicultural constitutionalism mostly by its advocates).
186
. See, e.g., Robin West, Progressive and Conservative Constitutionalism, 88
MICH. L. REV. 641 (1990). The permutations of this micro analysis are almost

constitutionalism becomes recontextualized,187 but only within the

framework of its values structure. There is thus very little that
separates postmodern constitutionalist discourse from the most
traditional strict constructionist within a community of
constitutionalist framework values. Though the consequences can
be significant in terms of the way in which a particular constitution
limitless and constrained only by the inventiveness of those with authority to

imagine changes. For example, Frederick Schauer has noted in his own critique
that:
Robert Post and Reva Siegel offer a mixture of
departmentalism (endorsing the constitutional interpretive
authority of Congress), popular constitutionalism (giving a
role to the people in defining the Constitution), and skepticism
about aggressive judicial review (criticizing the Supreme
Court for insufficient deference to the constitutional
determinations of Congress) which is not easily pigeonholed.
Nevertheless, their view plainly falls within a tradition of
concern over the anti-democratic tendencies of strong forms of
judicial review and judicial supremacy.
Frederick Schauer, The Supreme Court, 2005 Term--Foreword: The Court’s
Agenda—and the Nation’s, 120 HARV. L. REV. 4, 51 & n.180 (2005) (citing
Robert C. Post, The Supreme Court, 2002 Term--Foreword: Fashioning the
Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 36 (2003);
Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five
Power: Policentric Interpretation of the Family and Medical Leave Act, 112
YALE L.J. 1943 (2003); Robert C. Post & Reva B. Siegel, Protecting the
Constitution from the People: Juricentric Restrictions on Section Five Power
78 IND. L.J. 1 (2003)).
187
. Postmodern constitutionalism, it was once offered, “asks how changes in
technology and culture create new opportunities for the exercise of power. It
seeks to draw closer connections between the material conditions of life and
thought by studying the technological re-creation of forms of life.” Jack M.
Balkin, What is Postmodern Constitutionalism, 90 MICH. L. REV. 1966, 1978
(1992) (putting it starkly, “Postmodern constitutionalism is the constitutionalism
of reactionary judges surrounded by a liberal academy that despises or
disregards them, and which is despised and disregarded in turn; postmodern
constitutional culture is the culture in which the control of constitutional
lawmaking apparatus is in the hands of the most conservative forces in
mainstream life, while constitutional law as practiced in the legal academy has
cast itself adrift, whether out of desperation, disgust, or despair, and engaged
itself in spinning gossamer webs of republicanism, deconstruction, dialogism,
feminism, or what have you.” Id. at 1967.).

is applied,188 it does not affect the fundamental values that guide

any of these interpretive schools.
Yet, for all its complexities, this sort of inward looking

approach fails to acknowledge the importance of communal norms
developed among the community of nations. It reflects a now
obsolete view that law ends at the territorial limits of states and
that beyond those borders there are merely international relations
or the contractual relations among states. Yet, this view is still
powerful in more or less well-drawn form. Thus, some academics
couch their analysis in terms that suppose a tension between
constitutionalism and internationalism. “Both sets of commitments
involve claims to special authority as higher law, but they are
conceived of in two fundamentally different ways that are in
tension with each other.”189 Or it conflates the content of
constitutionalism with its character or nature. That conflation can
serve the interests of those whose focus is on contests for control
of the normative structure of internally derived and constrained
constitutionalism.190 But it can also serve as a basis for
internationalist or comparativist constitutionalist discourse as
188
. For a discussion of interpretive methodology, its inherent presumptions and
the effects it can have on understanding constitutions in the American context,
see ESKRIDGE ET AL., supra note 170.
189
. See Catherine Powell, Tinkering with Torture in the Aftermath of Hamdan:
Testing the Relationship Between Internationalism and Constitutionalism, 40
N.Y.U. J. INT'L L. & POL. 723 (2008) (applying a variant of traditional theory,
positing that international and constitutional law are co-constitutive of the
other). On the one hand, “Constitutionalism is based on ‘the foundational law a
particular polity has given itself through a special act of popular lawmaking’ as
the ‘inaugurating or foundational act of democratic self-government.’” Id. at
733 (citing Rubenfeld, supra note 143, at 1975). On the other hand,
“internationalism is based on the idea of universal rights and principles that
derive their authority from sources outside of or prior to national democratic
processes. These rights and principles constrain all politics, including
democratic politics.” Id. Under this perspective, “[t]he universal rights and
principles inherent in internationalism emerge not from an act of democratic
self-government, but rather as a check and restraint on democracy.” Id.
190
. See, e.g., Neil Gotanda, A Critique of “Our Constitution is Color-Blind,” in
CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT
257-75 (Kimberlé Crenshaw et al. eds., 1995) (demonstrating a current version
of that sort of self-reflective constitutionalism, bound up in its own notions of
nationality and field separation).

well.191 This has been particularly acute within Asian and Asian
values constitutionalist discourse.192 Of particular interest has
been the Chinese contribution to this discourse, at once strongly
nationalistic and at the same time open to the universalization of its
model or approach to constitutionalism.193
Most of the foundational articles about constitutionalism, as

a national or international normative structure, quickly move from
the nature of the concept (its institutional parameters) to the scope
of its legitimate parameters.194 Among the more powerful of
recent iterations of this approach:
Constitutionalism entails a sufficiently shared
willingness to use law rather than force to resolve
disagreements; to limit government power and to
191
. See, e.g., Jeffrey Usman, Non-Justiciable Directive Principles: A
Constitutional Design Defect, 15 MICH. ST. J. INT'L L. 643 (discussing the Indian
Constitution).
192
. See, e.g., Alice Erh-Soon Tay, “Asian Values” and the Rule of Law, 1 JURA
GENTIUM J. OF PHIL. OF INT’L L. AND GLOBAL POL. 1 (2005), available at
http://www.juragentium.unifi.it/en/surveys/rol/tay.htm.
193
. For examples of the discourse suggesting both the uniqueness of Chinese
constitutionalism or its embeddedness within the global constitutionalist
discourse, see the approaches advanced in, for example, Dinjian Cai, The
Development of Constitutionalism in the Transition of Chinese Society, 19
COLUM. J. ASIAN L. 1 (2005); Michael William Dowdle, Of Parliaments,
Pragmatism, and the Dynamics of Constitutional Development: The Curious
Case of China, 35 N.Y.U. J. INT'L L. & POL. 1, 10 (2002) (arguing in part that
“whereas traditional constitutionalist analyses focus on the courts, the real locus
of constitutional development lies in China's parliament, the NPC.”); M. Ulrich
Killion, Three Represents and China's Constitution: Presaging Cultural
Relativistic Asian Regionalism, Vol. XIII, No. 1 CURRENTS INT'L TRADE L.J. 23,
31-33 (2004); SUZANNE OGDEN, INKLINGS OF DEMOCRACY IN CHINA (2002).
On the “Three Represents” and Chinese constitutionalism, see Backer, supra
note 72 at 29. See generally STANLEY LUBMAN, BIRD IN A CAGE: LEGAL
REFORM IN CHINA AFTER MAO (2000).
194
. See, e.g., Louis Henkin, John Marshall Globalized, 148 PROC. AM. PHIL.
53, 55 (March 2004) (identifying among others, the consent of the governed,
representative government, separation of powers, and protection of individual
rights as elements of constitutionalism). See also Walter Murphy, Constitutions,
Constitutionalism and Democracy, in CONSTITUTIONALISM AND DEMOCRACY:
TRANSITIONS IN THE CONTEMPORARY WORLD 3-25 (Douglas Greenberg et al.
eds., 1993); Vijayashri Sripati, Constitutionalism in India and South Africa: A
Comparative Study from a Human Rights Perspective 16 TUL. J. INT'L & COMP.
L. 49 (2007).

protect human rights through law and defined

processes; to provide a reasonable degree of
predictability and stability of law that people may
rely on as they structure their lives; and to maintain
a government that is legitimate and effective
enough to maintain order, promote the public good,
and control private violence and exploitation.195
And most also target the individual—and the national community
of individuals (a polity, ethnos or demos) over its sub-national
communal components. Yet, constitutionalism, especially
nationalist constitutionalism, appears to be pointing toward a
recognition of sub-national groups as subjects of constitutionalism
to an extent that might approach the privileged place within
constitutionalist discourse currently occupied by the individual.196
E. Veiling Constitutionalism Within Contests Over Values.
All the same, by that conflation, constitutionalism as a

concept tends to be lost within the values that its proponents
suggest form its core. That mixing tends to strengthen arguments
against what people might call the mechanical application of
concepts across political communities. In a sense, that is what
joins national and internationalist constitutionalists.197 Yet,
constitutionalism ought to be understood as something apart from
those substantive norms it is said to serve. Much that passes for
constitutionalism and constitutionalist discourse are veiled
195
. Vicki C. Jackson, What's in a Name? Reflections on Timing, Naming, and
Constitution-Making, 49 WM. & MARY L. REV. 1249, 1254 (2008).
196
. See, e.g., Larry Catá Backer, Democracy Part VII: Constitutionalism and
Indigenous Peoples in the Bolivian Constitution, Law at the End of the Day, at
http://lcbackerblog.blogspot.com/2007/12/democracy-part-vii.html (Dec. 9,
2007) (“collective persons recognized as such in the constitution, like
individuals, are guaranteed rights and protections similar to those offered to
natural persons. These include the right to popular action. (Proposed
Constitution Arts. 138-139)), the right to recourse to the process of
constitutional amparo (Proposed Constitution Arts. 131), to privacy protection
(Proposed Constitution Arts. 133), to seek a declaration of unconstitutionality
(Proposed Constitution Arts. 135), the protection of the public defender
(Proposed Constitution Arts. 229-233).” (Id.)) See also, Jean Leclair, Federal
Constitutionalism and Aboriginal Difference, 31 QUEEN'S L.J. 521 (2006).
197
. See, e.g., DONALD S. LUTZ, PRINCIPLES OF CONSTITUTIONAL DESIGN 15-29
(2006).

attempts to justify particular political settlements—and to justify

them usually within a targeted group of states. Alternatively,
constitutionalism serves as a mask over state building efforts at an
international level, either as part of efforts to overthrow the secular
state system or to federalize that system by the creation of a global
federal state. In any case, the object is to move the locus of
authoritative pronouncements over legitimacy of state
organization—and its relationship with the people within a state—
from individual political states to supranational or international
organizations. Constitutionalist discourse, then, tends to serve as
post facto justification for political or legal conclusions that require
legitimization.
What this short and necessarily incomplete walk through

the thickets of constitutionalist discourse reveals, then, is a lively
area of discourse within which there is little consensus beyond the
most basic generalizations. Nor is there much of a focus. On the
one hand, constitutionalism is sometimes used as part of an
invocation—usually to intensify legitimacy. Sometimes
constitutionalism is deployed as a fetish object—a manifestation of
the good, the just or the concrete manifestation of ethereal truth.
Or, better put, constitutionalism as an artless term of art tends to
provide substantial evidence to support Nietzsche’s old
observation about the miscausation of politics and political
theory.198 Constitutionalism appears to define values, but it better
appears that values define constitutionalism.199 Indeed more detail
might have revealed in more dizzying detail the anarchic context of
constitutionalist discourse—or better put, the dozens of apparently
marginally related conversations, connected, it seems at times,
only by a shared agreement to use the world “constitutionalism” or
one of its variants, in the discussion. That hardly portends well for
198
. I have written of this in the context of the construction of the parameters of
modern international law. See Larry Catá Backer, The Führer Principle of
International Law: Individual Responsibility and Collective Punishment, 21
PENN ST. INT’L L. REV. 509, 516-20 (2003).
199
. Thus, cause and effect are reversed. “The newspaper reader says: this party
destroys itself by making such a mistake. My higher politics says: a party
which makes such mistakes has reached its end; it has lost sureness of instinct.”
Friedrich Nietzsche, Twilight of the Idols, ¶¶ 1-2, in THE PORTABLE NIETZSCHE
492-94 (Walter Kaufmann trans., Viking Press 1972) (1889).

any suggestion that there is something of a connection between

them, or more ambitiously, that there is a coherent framework—
much less a discernable ideology—that can be characterized as
constitutionalism. Yet that is precisely what this section attempts,
without falling into the trap that Geertz describes as valueless or
misleading generalizations as a consequence of the high level of
generality required to find evidence of commonality.200
III. THE IDEOLOGICAL FRAMEWORK OF CONSTITUTIONALISM.
The constitutionalism discourse has spawned a set of

legitimating approaches to constitutions and the construction of the
apparatus of government. All share a similar approach to an
understanding of the relationship between the individual and the
state, as well as to the relationship between governmental power
and individual prerogatives to be free of that power. All also share
the fundamental understanding that distinguish despotism or
tyranny, oligarchy and mob rule (illegitimate) from
constitutionalist (legitimate) states: rule of law, understood as a
principle of agency or fidelity to the community whose power is
being asserted and an obligation to act selflessly. But they are also
distinguished by the substantive values that shape the meaning and
application of the central principles of constitutionalism.
The key to an understanding of the framework within

which constitutionalism is both understood and deployed lies in the
development of the great schools of values constitutionalism after
1945. That evolution of the way in which states organized
themselves through constitutions of a type different from those that
existed before, is critical for situating the discourse and extracting
from it its essence. With these developments, the old discourse,
once confined within the borders of territorially confined states,
with constitutional principle a prisoner of the peculiarities of
territorially limited polities, was substantially broadened, and thus
broadened better able to reveal the character of the presumptions
underlying constitutionalism. That is the principal insight of the
200
. See CLIFFORD GEERTZ, THE INTERPRETATION OF CULTURES 87-125 (1973).

scholarly discourse if only briefly analyzed above. That

broadening can be understood as having occurred in three phases.
The first of these broadening efforts focused on globalizing

constitutions within the emerging framework of international
governance that was produced by the Allied victories against Japan
and Germany.
The focus of this constitutionalism was
transnational and secular. It was grounded on the
rules of behavior derived from the understandings
and sensibilities of the community of states. In this
sense it was self-referencing and meta sovereign—
the system essentially moved ultimate discretion up
from any individual state to the community of
states.201
Within this frame of reference, the fundamental character of
constitutionalism is its separation from the organization of states
and their governance mechanics through written instruments.202
This approach was developed simultaneously with a revolution o
sorts in the ideological framework of comparative law. “The
dominant theory of the modern era of comparative law has been
the conscious, articulated intent to identify unifying elements and
to discount differentiating ones. . . . ‘Every legal system in the
world is open to the same questions and subject to the same
standards, even countries of different social structures or different
stages of development.’”203 In both cases the notion embraced was
to privilege unity of principle and organization as a legitimating
device. This approach of transnational constitutionalism served to
spotlight the differences between constitutionalism systems that
cultivated a self-referential construction (nationalist
201
. Larry Catá Backer, supra note 9, at 38.
202
. “We may criticize some tenets of the Soviet Constitution; but never has the
doctrine of the Soviet Union reached the height of legal cynicism and political
bigotry shown by Nazi German professors of constitutional law in the assertion
that the best and most "living" constitutional order is one without a
constitution.” MAX M. LASERSON, RUSSIA AND THE WESTERN WORLD: THE
PLACE OF THE SOVIET UNION IN THE COMITY OF NATIONS 75 (1945).
203
Vivian Grosswald Curran, Cultural Immersion, Difference and Categories in
U.S. Comparative Law, 46 AMERICAN JOURNAL OF COMPARATIVE LAW 43, 66
(1998). (citing in part Konrad Zweigert & Hein Kötz, An Introduction to
Comparative Law 39 (in two volumes; Tony Weir, trans. 1977).

constitutionalism) with those more open systems that looked to

international consensus for its values. If both forms of
constitutionalism were legitimate, then what did they have in
common that justified viewing them both as legitimate
constitutional expressions, and how could one distinguish these
from illegitimate government?
The second of these broadening efforts saw the rise of

religion as the basic ordering framework for core constitutionalist
values. Theocratic constitutionalism in its modern form is very
young in many respects, no more than a generation old at this
point. But it has become a powerful system for constructing and
legitimating constitutional systems, at least among those who
embrace the normative religious framework within which it
operates. The focus of this constitutionalism was a search for a
grounding in values beyond the control of individuals.
Expressions of rules for institutional organization and behavior
derived from the holy texts and rule systems fo organized religions
provided a basis for the merger of substantive normative systems
with the procedural rechtsstaat protections of traditional
constitutions. With this broadening the discussion was
expanded—if values were a basic referent in the understanding of
constitutionalist systems legitimate) and a means of distinguishing
them from states with constitutions (illegitimate), then how might
one distinguish between constitutionalist values systems and
illegitimate ones, for example between theocratic constitutionalism
and theocracy?
The third was a revolutionary change in the way in which

rational constitutionalist systems were being implemented.
Moving away from the nominally constitutional systems of the
Soviet era and Maoist China, Marxist Leninist constitutionalism
has developed in the years since 1978 into something quite
different.204 Even formerly political forms of state organization
that rejected the constitutionalist ideology now have developed a
sophisticated discourse of constitutionalism looking to the
implementation of the values based constitutionalist structure of
204
. See, e.g., RANDALL PEERENBOOM, CHINA’S LONG MARCH TOWARD RULE
OF LAW (2002).

modern Marxist Leninist Party states.205 Again, Marxist Leninist

systems posed a problem for constitutionalism and its ideological
basis. Would it be possible to consider state systems grounded in
Marxist Leninist or other rational systems of political values
constitutionalist in the background of a history in which Marxist
Leninist systems (especially in the form of Stalinism and its
progeny) were once typecast as the antithesis of constitutionalist
governance?206
It is with these background questions in mind that it is

possible to organize the freewheeling discourse of
constitutionalism broadly suggested in Section II of this essay. At
the nexus of this history, development, implementation and
articulation of constitutionalism as practice and ideal lies a
developing ideology that has become a powerful framework for the
organization of the meta-values through which constitutional
systems are judged, and political consequences are legitimated.
Mark Warren speaks about the ideology of liberal
constitutionalism, “the combination of constitutional devices—
separation of powers, checks and balances, civil liberties and civil
rights—that are presumed to protect against illegitimate political
coercion against persons and which guarantee public influence
over political decision makers.”207 Yet, both rising
205
. See, e.g., M. Ulrich Killion, “Building Up” China's Constitution: Culture,
Marxism, and the WTO Rules, 41 LOY. L.A. L. REV. 563 (2008); Zhu Soli,
Political Parties in China’s Judiciary, 17 DUKE J. COMP. & INT’L. L. 533 (2007).
206
Christian Bioulanger related a story that nicely captures this understanding:
“Ewa Letowska recounts the following anecdote: A hungry
traveler walks into a shady restaurant in Moscow. He sits
down and inspects the menu. "I'll have the pork chops," he
says. "We don't have any," answers the waiter. "Well then, I'll
have the meat balls." "We don't have those either," "How
about liver then?" "Nope," answers the waiter. The annoyed
customer finally asks: "Am I reading the menu or our
constitution? This anecdote captures the role of Leninist
constitutions in the political reality of the former Soviet bloc."
Christian Boulanger, Constitutionalism in East Central Europe? The Case of
Sloavkia Under Meciar, 33 East Eur. Q. 1999 (quoting in part Ewa Letowska, A
Constitution of Possibilities, 6(2) EAST EUROPEAN CONSTITUTIONAL REVIEW
76-81, 76 (Spring/Summer, 1997)).
207
Mark Warren, Liberal Constitutionalism as Ideology: Marx and Habermas,
17(4) POL. THEORY 511 (1989).

constitutionalist discourse, and the development of values rich

governance systems suggests that an animating ideology also
underlies constitutionalism as a whole, a broader and more basic
ideology than those that underpin the particular values variants of
nationalist, transnational, theocratic and rationalist
208
constitutionalism.
Yet both action and discourse have produced something

more than ideology, understood as a framework for guiding,
explaining and justifying particular political action, grounded in a
particular value set.209 “We touch upon the theoretical or
noological level whenever we consider not merely the content but
also the form, and even the conceptual framework of a mode of
thought as a function of the lift situation of a thinker.”210 What
these developments, and the discourse generated, have produced is
208
I note but reject the commonplace—that ideology suggests a critique of its
object, that is, that [o]one’s own ideas are not ideological, only those of one’s
adversaries.” Sam Coombes, The Early Sartre and Ideology, 9(1) SARTRE
STUDIES INTERNATIONAL 54 (2003). For an interesting discussion attempting to
bridge the gap, through a reconception of notions of ideology as false
consciousness between liberal democratic theory and the Marxist/Frankfurt
School, see David Weberman, Liberal Democracy, Autonomy, and Ideology
Critique, 23(2) SOCIAL THEORY AND PRACTICE 205 (1997) (“A belief or desire
is ideological if it was generated in the wrong sort of way.”). Rather the
conception here is ideology as “an overarching set of beliefs and values.”
Weberman, supra, at n. 41.
209
See, VERNON VAN DYKE, IDEOLOGY AND POLITICAL CHOICE: THE SEARCH
FOR FREEDOM, JUSTICE, AND VIRTUE 1 (1995) (“The most likely alternative is to
treat ideology as a doctrine or dogma and to treat the adherents of an ideology as
doctrinaire or dogmatic ideologues, more likely to be fanatical than reasonable. .
. . In a sense, all ideologies are substitutes for thought, and they get condemned
for this reason; but they do not deserve the condemnation. They are substitutes
for thought in about the same way as the Ten Commandments are substitutes for
thought.” Id., 2).
210
KARL MANNHEIM, IDEOLOGY AND UTOPIA: AN INTRODUCTION TO THE
SOCIOLOGY OF KNOWLEDGE 51 (1954). He uses an example from Marxist
thought to illustrate the point, though the point is in this sense not confined to
the thought framework of Marxism. “‘The economic categories are only the
theoretical expressions, the abstractions, of the social relations of production. . . .
The same men who establish social relations conformably with their material
productivity, produce also the principles, the ideas, the categories, conformably
with their social relations.’ Karl Marx, The Poverty of Philosophy, being a
translation of Misère de la Philosophie, with a preface by Frederick Engels,
translated by H. Chicago Quelch, 1910, p. 119.” Id.).

a basic understanding of constitutionalism as a Weltanschauung—

a system of beliefs relating to power in the world, and specifically
to that power that is asserted to organize and run a political
organization, and its expression—through law.211 “As soon as the
total conception of ideology is used, we attempt to reconstruct the
whole outlook of a social group, and neither the concrete
individuals nor the abstract sum of them can legitimately be
considered as bearers of this ideological thought-system as a
whole. The aim of the analysis on this level is the reconstruction of
the systematic theoretical basis underlying the single judgments of
the individual.”212 Constitutionalism as weltanschauung contains
within it its own ontology (a descriptive model of legitimate
constitutions), explanation (the purpose of constitutions),
objectives (the ultimate aim of constitutions), values (constitutional
ethics), methodology (a theory of action or means of obtaining the
goals of constitutions), epistemology (a theory of knowledge, of
figuring out true and false constitutions), and its own etiology (an
account of the building blocks of constitutions).
No set of legal institutions or prescriptions exists
apart from the narratives that locate it and give it
meaning. For every constitution there is an epic, for
each decalogue a scripture. Once understood in the
context of the narratives that give it meaning, law
becomes not merely a system of rules to be
observed, but a world in which we live.213
211
. This is a notion better brought out in political science and philosophy
literature than in legal literature. Joseph Raz, for example, defines a
constitution, in part, as expressing a common ideology. See Joseph Raz, On the
Authority and Interpretation of Constitutions: Some Preliminaries, in
CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 152-93 (Larry Alexander
ed., 1998) (defining constitutions as an entity that is constituted as a stable legal
system, whose legal basis is expressed in written form and made higher law (in
the sense that its constitutional law is superior to ordinary law) that is justiciable,
entrenched and expresses the common ideology of the polity). Cf. Ronald R.
Garet, Comparative Normative Hermeneutics: Scripture, Literature,
Constitution, 58 S. CAL. L. REV. 35, 70 (1985) (arguing that constitutions should
not necessarily be defined as existing primarily to establish a normative source
via hermeneutics).
212
MANNHEIM, supra, note 214, at 52.
213
. Cover, supra note 180, at 5 (footnotes omitted).

Early definitions get at some of these notions. Before the Second

World War, American academics, for example, began to
understand constitutionalism in this way: “Constitutions, like all
creations of the human mind and the human will, have an existence
in men's imagination and men's emotions quite apart from their
actual use in ordering men's affairs.”214 Lerner embraced Walton
Hamilton’s definition of constitutionalism to this effect, as “the
name given to the trust which men repose in the power of words
engrossed on parchment to keep a government in order.”215
Constitutionalism, thus, invokes both evocative symbolism as well
as instrumentalism—an ordered system or systematization of
belief.216 Constitutionalism provides a language, the study of the
key words of which are the means to a “conceptual grasp of the
Weltanschauung or worldview of the people who use that language
as a tool not only of speaking and thinking, but, more important
still, of conceptualizing and interpreting the world that surrounds
them."217
That worldview has a strong ordering element.

Constitutionalism is a classification system for evaluating the
organization of “statelike” entities.218 The classification system is
214
. Max Lerner, Constitution and Courts as Symbols, 46 YALE L.J. 1290, 1293-
94 (1937).
215
. Id. at 1294 (citing Hamilton, Constitutionalism, 4 ENCYC. SOC. SCI. 255
(1931)).
216
. See Corwin, The Constitution as Instrument and as Symbol, 30 AM. POL.
SCI. REV. 1071 (1936). “As an instrument it must be viewed hardheadedly and
used flexibly to promote the people's welfare in the present and future. As a
symbol it is part of the mass mind, capable of arousing intense popular hysteria,
loaded with a terrible inertia, its face turned toward the past.” Lerner, supra
note 203, at 1294.
217
Syamsuddin Arif, Preserving the Semantic Structure of Islamic Key Terms
and Concepts: Izutsu, Al-Attas, and Al-Raghib Al-Isfahani, 5(2) ISLAM &
SCIENCE 107, 109 ( 2007). (“The term ‘Weltanschauung’ gives a clue to Izutsu's
understanding of semantics as a kind of sprachliche Weltanschauungslehre, ‘a
study of the nature and structure of the worldview of a nation at this or that
significant period of its history, conducted by means of a methodological
analysis of the major cultural concepts the nation has produced for itself and
crystallized into the key words of its language.’” Id., citing Toshihiko Izutsu,
God and Man in the Koran: Semantics of the Koranic Weltanschauung 11
(Tokyo: Keio Institute of Cultural and Linguistic Studies, 1964))
218
. The term is borrowed from Robert Nozick, who in working through the idea
that a dominant protective association within a territory might satisfy the

not merely descriptive, though it is necessarily so.

Constitutionalism provides a taxonomy of state organization
grounded in law.219 In this sense, Constitutionalism is not about
constitutions, but rather about the consequences of constitutional
difference. It serves to distinguish those clusters of contextualized
features that serve the ideological ends of constitutionalism from
those others which must be deemed illegitimate.220
Constitutionalist taxonomy provides room for context, culture,
tradition, and historical serendipity that mark a particular demos as
distinct from others while providing a more generalized framework
against which those contextual differences are contained.221 The
ideology of framework legislation serves as a grounding for this
sorting function of constitutionalism.222
Taxonomy leads to an underlying normative structure, and

constitutionalism’s worldview is also particularly normative.
Constitutionalism has an object—to judge the constitution of
political systems as legitimate or illegitimate—in accordance with
conditions necessary to characterize that entity as a state, concluded that “the

protective association dominant in a territory, as described, is a state. However,
to remind the reader of our slight weakening of the Weberian condition, we
occasionally shall refer to the dominant protective agency as “a statelike entity,”
instead of simply as “a state.”” ROBERT NOZICK, ANARCHY, STATE AND UTOPIA
117-18 (1974) (suggesting that the state need only have a de facto monopoly of
violence rather than be the sole authorizer of violence).
219
. See Tad Stahnke & Robert C. Blitt, The Religion-State Relationship and the
Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the
Constitutions of Predominantly Muslim Countries, 36 GEO. J. INT’L. L. 947
(2005) (providing an excellent example of the religious element in the
constitutions of Muslim majority states). See also Günter Frankenberg,
Comparing Constitutions: Ideas, Ideals, and Ideology--Toward a Layered
Narrative, 4 INT'L J. CONST. L. 439 (2006).
220
. See Lerner, supra note 203, at 1294-1304.
221
. See id.
222
. The easiest way to conceptualize the descriptive and proscriptive parameters
of this function is by analogy to the directive within the legal order of the
European Union. See Treaty Establishing the European Community, Nov. 10,
1997, 1997 O.J. (C 340) 249 (“A directive shall be binding, as to the result to be
achieved, upon each Member State to which it is addressed, but shall leave to
the national authorities the choice of form and methods.”); PAUL CRAIG &
GRÁINNE DE BÚRCA, EU LAW: TEXT, CASES & MATERIALS 85 (4th ed. 2008)
(“Directives are particularly useful when the aim is to harmonize the laws within
a certain area or to introduce legislative change.”).

the normative beliefs from out of which it is constituted. This is a

crucial evaluation. As Robert Nozick noted, “those legitimately
wielding power are entitled, are specially entitled, to wield it.”223
It follows that the evaluation implicit in constitutionalism has legal
and political consequences for the obligations of individuals to
conform and other states to respect the organization and actions of
a particular entity.
The normative element of constitutionalism carries with it a

certain authentic or legitimating meta-ideology, like religion, but
based on its own logic.224 For the most part, that ideology225 has
crystallized along now familiar rechtsstaat and Sozialstaat lines,
which include: protection of the higher law status of the
constitution in both blackletter and by an appropriate mechanism
(an independent judiciary or constitutional court system), rule of
law, democracy, consent, limited government, interdiction of
arbitrary acts, actions taken in accordance with law, respect for
human rights and dignity as such notions are commonly
understood by the community of nations. The ideology is both
universalizing and secular—that is it draws on its own internal
framework grounded in the mores of the collectivity of nation-
states for its principles.
223
. NOZICK, supra note 206, at 134.
224
. András Sajó, Preliminaries to a Concept of Constitutional Secularism, 6
INT'L J. CONST. L. 605, 625 (2008) (“It is not just a convenience of
modernization to rely on the--unfortunately too-often-false--promise of reason
and human rationality. Basing the legal system (its laws and decisions) on
secular arguments differs fundamentally from a system based on religious
arguments, and not only because the secularist can tentatively demonstrate the
practical advantages of reason, insofar as one prefers modernity generally.”).
Cf. W. Tarver Rountree, Jr., Constitutionalism as the American Religion: The
Good Portion, 39 EMORY L.J. 203, 205 (1990) (suggesting that American
nationalist constitutionalism has attributes of religion in the form of its
constitution as higher law with sources apart from those of religious higher law
values).
225
. “Constitutionalism is a political ideology that consists of various principles
and assumptions about the dual nature of the individual as private person and
public citizen, the nature of the state, and the nature of the complex set of
relationships between the individual and the state.” Edward A. Harris, Living
with the Enemy: Terrorism and the Limits of Constitutionalism, 92 COLUM. L.
REV. 984, 986 (1992) (reviewing JOHN E. FINN, CONSTITUTIONS IN CRISIS:
POLITICAL VIOLENCE AND THE RULE OF LAW (1991).

Religion presents itself as either object worthy of protection

within that cluster of human rights and dignity concerns, or
otherwise subordinated to the superior mores generated by the
global collective of states. Religion must behave. Religion must
assimilate to the overall normative constructs of society.226 Thus
softened, it may participate on the terms of the values framework
of the constitutional order.227 The bulk of constitutionalism’s
ideological manifestations are to be found within the document
itself, in the common or customary law of a particular polity
(usually protected by the highest independent interpretive body of
that polity), and sometimes also in the pronouncements and
instruments of international and supranational organizations (from
regional human rights organizations, to the United Nations
system). Thus, the common constitutional traditions of the
community of nations may themselves serve as the basis for the
extraction of principles of constitutional behavior and its
application in specific contexts.
Lastly, constitutionalism has an implementation element

derived from its ideologically constrained organizational basis.
Constitutionalism is concerned with the way in which its
ideologically derived norms are implemented. The focus has been
on process and substantive provisions. Process provisions are
meant to guard against arbitrary conduct. These provisions
implement notions of lawfulness understood as rule of law in its
226
. See Lasia Bloß, European Law of Religion—Organizational and
Institutional Analysis of National Systems and Their Implications for the Future
European Integration Process, New York University School of Law, Jean
Monnet Working Paper 13/03, 2003, available at
http://www.jeanmonnetprogram.org/papers/03/031301.pdf (describing the
softening within the normative frameworks of European constitutional
traditions).
227
. See, e.g., NATHAN O. HATCH, THE DEMOCRATIZATION OF AMERICAN
CHRISTIANITY 3-17 (1989). It is in this sense, perhaps, that one can understand
the push in the West to the creation of soft versions of universalizing religion
that speaks with a political voice. The object is to assimilate religion within a
superior normative political framework system, to make religious expression
more compatible with the superior political system, and to suggest the
subordination of religion within that system—in matters of dissent, the only
acceptable alternatives are exit or separation.

traditional sense of due process or rechtsstaat (loosely understood).

Substantive provisions are meant to limit the power of the
apparatus of state constituted through the basic law of state
organization. These are the Sozialstaat notions—the articulation of
the moral and ethical basis of state organization. These provisions
embrace the great normative framework of state power—limiting
power, the relationship of individual to state, social justice and
human rights considerations. Constitutions without both process
and substance rights would not be legitimate constitutions of
governments as understood under constitutionalist principles.
Thus, Constitutionalism as taxonomy and ideology

provides a basis both for determining the legitimacy or illegitimacy
of forms of “higher law” governance, and for developing those
normative frameworks that give deep substantive effect to the rule
of law systems that define the heart of constitutionalist legitimacy.
Constitutionalism is thus revealed as a system of classification, the
core object of which is to define the characteristics of constitutions
apparatus), to be used to determine the legitimacy of the
constitutional system as conceived or as implemented. The bright
line in constitutionalism—the core assumption that separates
legitimate from illegitimate constitutionalism—is rule of law.
Rule of law is the fundamental postulate of legitimate government,
understood generally as the establishment and operation of
government in a way that limits the ability of individuals to use
government power for personal welfare maximizing ends.
Government of laws and not of individuals, bureaucratization and
institutionalization of politics within systems that limit discretion
are the hallmarks of constitutionalism. But rule of law is necessary
but not sufficient for legitimate government under constitutionalist
principles. Rule of law, and the construction of the state, the
assumptions of its powers and the limits thereof must also be
grounded on a metric of substantive values derived from a source
beyond the control of any individual.
Constitutionalism as Weltanschauung thus evidences its

own ontology, providing a basic descriptive model of constitutions,
a rationale (the construction of government that is lawful within
the framework of a core set of presumptions), the ultimate aim of

which is to institute a legitimate form of state power through

institutions that are responsive to the ultimate sovereigns in a
political community. Constitutionalism develops a sophisticated
system of values, implemented through a core methodology—the
rule of law—which also serves as the basis of constitutionalist
epistemology, a theory of knowledge that distinguishes between
legitimate and illegitimate constitutions grounded in the values
systems from out of which constitutional power is distributed and
limited within a set of structures of governance which serves as its
etiology.
Thus understood, the discourse of constitutionalism

described above,228 helps better organize and understand the
constitutionalist discourse generated over the last century. The
constitutionalist framework described above sharpens and
contextualizes the focus and scope of constitutional discourse in its
various aspects. Constitutionalism as taxonomy also organizes
constitutional discourse into two principal sites within which
political and academic actors engage in two important discursive
contests. These are contests with important power dimensions.
The emergence of the problem of the

multiplicity of thoughtstyles which have appeared
in the course of scientific development and the
perceptibility of collective-unconscious motives
hitherto hidden, is only one aspect of the prevalence
of the intellectual restiveness which characterizes
our age. In spite of the democratic diffusion of
knowledge, the philosophical, psychological, and
sociological problems which we presented above
have been confined to a relatively small intellectual
minority. This intellectual unrest came gradually to
be regarded by them as their own professional
privilege, and might have been considered as the
private preoccupation of these groups had not all
228
. Supra Part I.

strata, with the growth of democracy, been drawn

into the political and philosophical discussion.229
The first is the classical conflict between legitimate and

illegitimate constitutionalist states. That contest invokes all five
elements of the working definition.230 This was the critical focus
of constitutionalist discourse in the period immediately after the
Second World War. It served as the basis for helping to
reconstruct the German and Japanese constitutions.231 It was
critical for the construction of theories of illegitimacy of Soviet
constitutionalism.232 This was the source of principles critical of
the legitimacy of governments formed by dictatorships,233 and
governments that excluded citizens on the basis of race (notably
South Africa).234 Lastly, it served as a basis for distinguishing
229
KARL MANNHEIM, IDEOLOGY AND UTOPIA: AN INTRODUCTION TO THE
SOCIOLOGY OF KNOWLEDGE 30 (1954).
230
. See LASERSON, supra note 198, at 68-74; see also Backer, supra note 9, at
35.
231
. See Backer, supra note 9, at 35.
232
. LASERSON, supra note 198, at 69 (“Among the features of the Soviet state-
order there was not much place for that atmosphere which in real democracy
surrounds a constitution as a kind of lofty legislation as compared with usual
lawmaking. In democracies a constitution is always considered as a document
which shows the achievement by a given nation at a certain stage in the struggle
of the citizens or subjects toward self-government and limitation of the powers
of the state. This is why constitutions very often lay down their basic rules
(norms) as negations of former restrictions.”).
233
. ROBERT BARROS, CONSTITUTIONALISM AND DICTATORSHIP: PINOCHET, THE
JUNTA, AND THE 1980 CONSTITUTION 255 (2002) (“Chile remained subject to
military rule. In the eyes of the opposition and foreign critics, the constitution
was merely a move to legitimate further dictatorship. Like most authoritarian
constitutions, the elaborate democratic edifice of the 1980 constitution, even
with its many restrictive precepts, was nothing more than a façade: Through the
back door authoritarian rule reappeared and was firmly entrenched.”). See also
id. at 254 (arguing that “[c]ontrary to the general view that the constitution was
merely an instrument of military rule, the constitution itself would impose
additional constraints, now however upon the Junta as a whole. Strikingly, the
commanders of the armed forces would end up bound by terms of their own
earlier agreement.”).
234
. See, e.g., ROBERT M. PRICE, THE APARTHEID STATE IN CRISIS: POLITICAL
TRANSFORMATION IN SOUTH AFRICA, 1975-1990 220-49 (1991).

legitimate constitutionalist states from theocracies and other

similar forms of state organization.235
The second site for conflict pits legitimate constitutionalist

systems against each other. The differences between systems
produce discourses of competition/harmonization/divergence
similar to those of traditional comparative law interrogation of
different families of law.236 The focus of those differences has
centered on the substantive values around which constitutionalist
systems are organized. Values constitutionalism as it is being
developed serves to distinguish the foundations of constitutionalist
systems from each other—with respect to the core values of state
organization. These values permit insiders (citizens) and outsiders
(foreign states, other entities and individuals) to judge the
constitutional order created as either legitimate and authoritative or
not, and to permit as well a judgment of the distance between the
values ideals of a particular constitutionalist system and its reality.
On the one hand, constitutionalist principles have been

applied from a state centered perspective. Traditional nationalist
constitutionalism looks inward for its ideology as well as its
yardstick for measuring others. While mindful of developments
elsewhere, it tends to privilege context, nuance, and internal
manifestations of norms over formal suggestions of harmonization.
It rejects the notion of convergence from without, though it is not
averse to effective convergence as the act of will of the domestic
sovereigns in accordance with their tastes. While nationalist
constitutionalism does not like to be told what to do, it is sensitive
about benchmarking and will tend to conform to some extent.
Issues of interpretation, of the sources and meaning of the
constitutional order are all grounded in the idea of the uniqueness
of the polity and the constitutional settlement.
235
. See, e.g., C. NORTHCOTE PARKINSON, THE EVOLUTION OF POLITICAL
THOUGHT 121-166 (1958); Hannibal Travis, Freedom or Theocracy?:
Constitutionalism in Afghanistan and Iraq, 3 NW. U. J. INT'L HUM. RTS. 4
(2005).
236
. See PETER DE CRUZ, COMPARATIVE LAW IN A CHANGING WORLD 32-44
(Cavendish 3d ed. 2007) (1995); KONRAD ZWEIGERT & HEIN KÖTZ, AN
INTRODUCTION TO COMPARATIVE LAW 1-73 (Tony Weir trans., Clarendon Press
3d rev. ed. 1998) (1977).

More recently, such principles have been applied from a

global perspective—producing an institutionalist and customary
global constitutionalism. Roscoe Pound might have been looking
at the change in the relation of local law to legal ideals when he
declared that “[t]hroughout the world there has been a revival of
the universal ideal,”237 yet this notion is nowhere more true than in
the context of constitutionalism. Transnational constitutionalism
looks to the communal traditions of the community of nations for
the sources of substantive limits on state constitutive powers.
Rejecting the notion that a state can stand alone in the construction
of its government and in the exposition and implementation of the
values underlying that system, transnational constitutionalism
explicitly embraces the idea of a source of higher law outside the
state or its local sovereigns. It concedes the possibility that the
desires of a majority of its population may be checked by an
ideology in the development of which it may participate but which
it does not control.238 A useful example of the differences between
transnationalist and nationalist constitutionalism is evidenced by
the approaches of the Supreme Courts of the United States and
South Africa when confronted with the question of the legality of
the death penalty under their respective constitutional systems.239
237
. ROSCOE POUND, supra note 71, at 29.
238
Thus, “1. The legal system of East Timor shall adopt the general or
customary principles of international law. 2. Rules provided for in international
conventions, treaties and agreements shall apply in the internal legal system of
East Timor following their approval, ratification or accession by the respective
competent organs and after publication in the official gazette. 3. All rules that
are contrary to the provisions of international conventions, treaties and
agreements applied in the internal legal system of East Timor shall be invalid.”
Constiuttion of the Democratic Republic of East Timor (2002), available
http://www.constitution.org/cons/east_timor/constitution-eng.htm. “We
recognize that all peoples of the world have the right to live in peace, free from
fear and want. We believe that no nation is responsible to itself alone, but that
laws of political morality are universal; and that obedience to such laws is
incumbent upon all nations who would sustain their own sovereignty and justify
their sovereign relationship with other nations.” Nihonkoku Kenpô (1946)
Preamble (The Constitution of Japan).
239
. Compare State v. Makwanyane 1995 (3) SA 391 (CC) at 391 (S. Afr.),
available at http://law.gsu.edu/ ccunningham/fall03/DeathPenalty-SouthAfrica-
Makwanyane.htm (South Africa), with Roper v. Simmons, 543 U.S. 551 (2005).

What is clear is that constitutionalism escaped its territorial

bounds. It is no longer merely the peculiar expression of a
uniquely constituted demos/ethnos. Constitutionalism has
acquired a transnational aspect. This development challenges but
has not eliminated traditional state bounded conceptions of
constitutionalism. The challenge is not grounded in a suggestion
of illegitimacy, rather it targets the values on which such
traditional constitutionalism rests. The transnational element of
constitutionalism is not a uniform construction—it is developing
along both institutionalist and communal/comparativist lines. The
great difference between transnational and nationalist
constitutionalism lies in the assumptions about the source of
ultimate authority over constitutional design. For nationalists, that
ultimate authority remains with the state—contextualism and the
local is privileged above other values. For transnational
constitutionalists the source of ultimate authority is the community
of nations. All states have a stake in the construction of
constitutionalist values, but none control its development. Like
states in a federal system, all are bound by the higher law of global
constitutional values which serve as a limit on contextualist
variation. For transnational constitutionalism harmonization
within a universally applicable set of values is privileged above
other values, and especially over the legitimacy of inconsistent
local variations.
Yet constitutionalism has also escaped its transnational

bounds. It has found a source for legitimate organization within
the universal moral/ethical systems of religion. To a great degree,
constitutionalism has proven that religion is not merely an object
of governance—a right to be ordered along with the others in
accordance with nationalist or transnationalist principles. Instead
it serves as the source of those values which, beyond the control of
any individual, can serve as the source for interpreting the
application of state power.240 The source of ultimate authority in
240
. Introduction: Political Culture and Constitutionalism, in POLITICAL
CULTURE AND CONSTITUTIONALISM: A COMPARATIVE APPROACH, supra note
120, at 5 (“For example, is it possible to speak of a constitutional regime in a
Muslim state that is governed by Islamic law (sharia)? We think so. To deny
this possibility is to lend an irrevocably Western bias to our analysis. After all, a
people's willingness to surrender to the authority of the state (in the person of a

theocratic constitutionalism is neither the people, as a political

body, nor the community of nations, as a body of consensus
governance. Instead the ultimate authority is the Divine. The
priest serves as his intermediary. Priesthood is thus not merely a
religious but a political vocation. The institutions of the religion
on which state constitutional norms are grounded serve not merely
as religious but also as political institutions. Constitutionalism
within a religious values system is possible where religion is the
values framework through which government is implemented,
rather than where religion serves as a substitute for government,
law, rule of law, etc.241 Yet it rejects both the values foundations
of nationalist and transnationalist constitutionalism as illegitimate.
Even theocratic constitutionalism, though, is not the only

alternative to nationalist and transnationalist constitutionalism.
Rising in parallel with religion as a foundation values system for
constitutionalist systems are systems of rationalist
constitutionalism, and in particular those grounded in Marxist-
Leninist principles. Once the very proxy for illegitimate
constitutionalism, Marxist Leninist systems, and in particular those
of the People’s Republic of China since 1979, have begun to
elaborate a universal values structure that provides a basis for
constitutionalist nation building consistent with the ideological
framework of legitimating constitutionalism.242 Even states
organized on the principle of a single party in power can claim
some constitutionalist legitimacy where the institutions created
king, or in the form of a particular philosophy or theology) is variable and

culturally determined. We entertain the possibility (admittedly without much
enthusiasm) that political modernization can take a path different from that of
liberal democracy.”).
241
. See Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a
New Global Ordering, 16 IND. J. GLOBAL LEGAL STUD. - (forthcoming 2009),
available at http://papers.ssrn.com/sol3/paper.cfm?abstract_id= 1184118; Ran
Hirschl, The Theocratic Challenge to Constitution Drafting in Post-Conflict
States, 49 WM. & MARY L. REV. 1179, 1179 (2008).
242
. See Larry Catá Backer, The Party as Polity, The Communist Party and the
Chinese Constitutional State: A Theory of Party-State Constitutionalism , 16 J.
CHINESE COMP. & L. (forthcoming 2009); Larry Catá Backer, Cuban Corporate
Governance at the Crossroads: Cuban Marxism, Private Economic Collectives,
and Free Market Globalism, 14 J. TRANSNAT’L L. & CONTEMP. PROBS. 337,
349-55 (2004) (in the context of globalization).

adhere to the great principles of constitutionalism—especially its

adoption of its rule of law principles and its substantive
constitutionalism that avoid tyranny, oligarchy and mob rule by
bureaucratizing and institutionalizing power under clearly
articulated principles.243
The values element in constitutionalism—important as a

key element in the elaboration of modern constitutional
governments—now also serves as the site of great contests for
consensus over which set of values ought to be inscribed in the
constitutionalist structure of states.
For one must understand this: every natural
custom, every natural institution (state, judicial
order, marriage, the care of the sick and the poor),
every demand inspired by the instinct of life—in
short everything that contains its value in itself is
made altogether valueless, anti-valuable by the
parasitism of the priest (or the “moral world
order”): now it requires a sanction after the event—
a value conferring power is needed to negate what
is natural in it and to create a value by so doing.244
So it is with constitutionalism. Except now in place of the priest as
a framework values infusing “type” there is now the doctor of law,
or better understood in its continental form—droit, derecho,
diretto, recht—for which task priest, lawyer, judge and politician
are qualified.245
It is over values that variations in constitutionalism have

arisen. And it is over values that constitutionalist systems compete
for the legitimating loyalty of political communities. Though each
variant—nationalist, transnational, theocratic, rationalist or natural
law constitutionalism—might view the others as illegitimate (or as
243
. See Larry Catá Backer, A Constitutional Court for China Within the Chinese
Communist Party: Scientific Development and the Institutional Role of the CCP
(Consortium for Peace & Ethics Working Paper No. 2008-1, 2008), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1308598.
244
. Friedrich Nietzsche, The Antichrist, in THE PORTABLE NIETZSCHE 597
(Walter Kaufmann ed. & trans. 1968).
245
. See Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry
on the Dominion of Judges, 12 WM. & MARY BILL RTS. J. 117 (2003).

incompatible with its own values), each might be legitimately

understood as constitutionalist rather than despotic.
Whatever the outcome of this competition, it has now

become clear that for many people, states and communities, there
may well be a higher law above constitutions. States no longer sit
atop the hierarchy of sources of law, even of their own domestic
constitutions. However manifested, that higher law may be
compelling. Depending on the strength of the communities of
believers, conformity to that “higher law” may be compelled. It
seems that communities of the faithful—now communities of
constitutionalist faithful—are reverting back to traditional forms of
competition once reserved to religion.
Constitutionalism systematizes the way in which one can

separate between legitimate and illegitimate systems of
governmental organization in a principled manner. Yet it also
systematizes the creation of variations in legitimate
constitutionalist values frameworks, in accordance with the basic
presumptions of constitutionalist government. Among these
systems, markets in governance are being created. Unregulated for
the moment, their systemization awaits a greater power.
IV. CONCLUSION.
Academic and policy engagements with constitutions and

constitutionalism have largely been built around unstated
frameworks within which legitimated activity is understood to take
place. The essay suggests both the disorientation of much of the
discussion and proposes an ideological framework that captures the
assumptions about which constitutionalist discourse has evolved.
No longer is it possible to think about constitutions without
considering the underlying values that each embraces and testing
those values against a set of markers of legitimacy. This essay
suggests that the way in which constitutions are understood has
changed dramatically since the time of the founding of the
American Republic. But important segments of academic and
legal discourse about constitutions are being conducted without the
participation of many Americans, who continue to embrace

nineteenth century notions of national primacy and exclusivity.

This is ironic in the face of the actions that have been the hallmark
of American policy since 1945, contributing to the transnational
constitutionalism that marked the vanguard element of
constitutional development after 1945, and now again after 2003,
contributing to the creation of theocratic constitutionalist regimes
in Iraq and Afghanistan. In both cases, constitutionalist systems
emerged that emphasized universal value systems as limits on
expressions of contextual national predilections for governance.
This essay has suggested the context in which ideas about

constitutionalism have emerged in the early part of this present
century. Once a belief in the power of states to construct
themselves by reference to the characteristics of their own unique
populations, constitutionalism was limited to matters of
transposing contextual characteristics into a document that
required interpretation true to the underlying belief systems from
out of which it was created.246 American constitutional law
followed that pattern, and still does to a great extent. That was the
limit of constitutionalism.
But tremendous changes were brought to constitutionalism

outside the United States; changes in which the Americans have
had a great hand, but which have little affected the internal
understanding of the law system they have helped create.247
Principal among these has been the rise of transnational
constitutionalism, embracing a belief in the power of the
community of nations to develop and impose values based limits
on the power of states to adopt whatever constitutional norms
might strike them. Constitutionalism now became a basis for
judging the legitimacy of systems of governance, and for providing
a framework within which legitimate systems could be created.
246
. See supra, Part I (discussing numerous examples). See also Craig Green,
Erie and Problems of Constitutional Structure, 96 CAL. L. REV. 661, 687-92
(2008); Richard A. Primus, When Should Original Meanings Matter?, 107
MICH. L. REV. 165, 212-13 (2008). See generally Richard Stith, Securing the
Rule of Law Through Interpretive Pluralism: An Argument from Comparative
Law, 35 HASTINGS CONST. L. Q. 401, (2008).
247
. See Backer, supra note 12, at 61-65. See also Roper v. Simmons, 543 U.S.
551, 575-79 (2005)and id. (Scalia, J., dissenting at section III).

These functions added to rather than replaced the old focus of

constitutionalism to the methodologies of fidelity to adopted
norms.248 Values based constitutional limits have now expanded
well beyond the original framework. Other values systems have
now sought to compete with transnationalist values
constitutionalism and replace it if they can. Among them are
theocratic and rationalist constitutionalist values systems.
These changes have affected the discourse of

constitutionalism that has developed from out of that context, in
which academics and others have sought to understand and apply
notions of constitutionalism. Action and thought have thus come
together to produce a set of beliefs and assumptions, which though
usually assumed, are rarely expressed together. This essay
reviewed that discourse. Together, discourse and practice have
suggested an approach to a definition of constitutionalism
consisting of five elements: (1) a system of classification, (2) the
core object of which is to define the characteristics of constitutions
apparatus), (3) to be used to determine the legitimacy of the
constitutional system as conceived or as implemented, (4) based on
rule of law as the fundamental postulate of government (that
government be established and operated in a way that limits the
ability of individuals to use government power for personal
welfare maximizing ends), and (5) grounded on a metric of
substantive values derived from a source beyond the control of any
individual.249
248
. On constitutional fidelity, see Saby Ghoshray, False Consciousness and
Presidential War Power: Examining the Shadowy Bends of Constitutional
Curvature, 49 SANTA CLARA L. REV. 165, 210 (2008) (“In the end, my hope is
to retain proximate fidelity to the Constitution.”); Reva B. Siegel, Dead Or
Alive: Originalism as Popular Constitutionalism in Heller, 122 HARV. L. REV.
191, 220 n.137 (2008) (“As Justice Scalia analyzed the question in 1989, judges
should interpret the Constitution to enforce fidelity to ‘original values’; it was
abandoning original values that required a constitutional amendment.”). For an
example from German constitutional law, see Daniel Halberstam, Of Power and
Responsibility: The Political Morality of Federal Systems, 90 VA. L. REV. 731,
739-62 (2004).
249
See supra Part II (for discussion).


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CONSTITUTION-CONSTITUTIONALISM REVISED DRAFT12-1-2008 1/23/09 8:28 PM

From Constitution to Constitutionalism:

* Professor of Law, Pennsylvania State University, Dickinson School of

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102 PENN STATE LAW REVIEW [Vol. 113:3

II. Consensus Constitutionalism.

III. The Ideological Framework of Constitutionalism.

Once upon a time it was unnecessary to look beyond constitutions.

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2009] FROM CONSTITUTION TO CONSTITUTIONALISM 103

functions in accordance with the provisions of the conatitution.”2

No one was particularly fussy about the content of those

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104 PENN STATE LAW REVIEW [Vol. 113:3

understanding of constitutionalism,7 was viewed as a choice that

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2009] FROM CONSTITUTION TO CONSTITUTIONALISM 105

understood essentially as a theoretic of higher law grounded in the

But, in the aftermath of the Second World War and in the

A constitution without legitimacy is no constitution at all.

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106 PENN STATE LAW REVIEW [Vol. 113:3

undermines a shared constitutionalism. Rory Stewart perhaps puts

Constitutionalism thus might be understood as a

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2009] FROM CONSTITUTION TO CONSTITUTIONALISM 107

former.19 It was in this form, for example, that Carlos Santiago

Even if one can argue that constitutionalism is grounded in

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108 PENN STATE LAW REVIEW [Vol. 113:3

the normative systems of universalist religion.26 And the

This essay starts with a critical examination of the main

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2009] FROM CONSTITUTION TO CONSTITUTIONALISM 109

legitimating any number of arguments made in its name. Yet it is

From out of this discourse, Section II suggests a working

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110 PENN STATE LAW REVIEW [Vol. 113:3

originating as a system of taxonomy and legitimation that is

These basic presumptions produce an ideology of

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2009] FROM CONSTITUTION TO CONSTITUTIONALISM 111

imperatives of a privileged religious system.33 Lastly, rationalist

These ideological frameworks of substantive

Thus understood, constitutionalism becomes the framework

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112 PENN STATE LAW REVIEW [Vol. 113:3

systematization of the parameters for conceiving constitutions and

II. CONSENSUS CONSTITUTIONALISM

Robin West once usefully sketched out the parameters within

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2009] FROM CONSTITUTION TO CONSTITUTIONALISM 113

obligations derived not from the country's history,

A. Seeking the Universal; Constitutions as Elements of a

For many influential scholars, constitutionalism can be

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114 PENN STATE LAW REVIEW [Vol. 113:3

of international law.39 They build on the great framework of

Some advocates look to the construction of a global