Volume 9 Numbers 1/2

Winter/Spring 2000

 

Limiting Goverment- An Introduction to Constitutionalism
By Andras Sajor

Donald P. Kommers

Limited Government is a challenging contribution to the theory and practice of modern constitu-tionalism, and it fortifies Andras Sajo's reputation as Eastern Europe's most distinguished constitutional scholar. As a Hungarian academic, he was seasoned in Eastern Europe's boiling kettle of constitutional politics. He was also a player in the tran-sition from communism to democracy in his own country. These experiences help to explain Sajo's down-to-earth view of constitution making generally. In his historically grounded perspective, where duplicity and ambition are inherent in the human condition, there is no such thing as a perfect, or even near-perfect, constitution. Two messages-neither of them new or surprising-emerge from this sweeping study of constitutionalism. The first is that constitu-tional designs rarely fulfill the promises or expectations of their creators; the second is that constitutionalism is designed not so much to enhance as to limit the exer-cise of popular democracy.

I
To illuminate these remarks, it might be helpful to set forth an independent review of the constitutional history forming the backdrop against which Limited Government was written. In the last half-century, the world has witnessed two major explosions of constitu-tion writing. The first erupted in the years immediately following the Second World War when European governments patched up their failed polit-ical systems and Asian and African countries broke loose from colonial domination. The second occurred at the end of the 1980s when communism's break-down launched democratic reform movements throughout Central and Eastern Europe. The remod- eled constitutions of these nations, along with the constitutions of newly created states, paralleled those simultaneously emerging from the overthrow of one-party governments and military rule in Africa and South America. Giovanni Sartori reports that "of the 170 or so written documents called constitutions in today's world, more than half have been written since 1974" (Comparative Constitutional Engineering, 2d ed., 1997). These would include the new constitutions of Greece (1975), Portugal (1976), Spain (1978), and Brazil (1988), not to mention Canada's Charter of Rights and Freedoms, adopted in 1982. More notable for present purposes was the cascade of constitution making in postcommunist Eastern Europe. Eastern European constitutions, however, were anything but original acts of creation. They were mainly revisions (for example, in Poland and Hungary) of existing socialist constitutions adjusted to reflect-and consti-tutionalize- economic and political liberalization. As noted below, they also included provisions that appear to be little more than listless borrowings from the constitutions of Western parliamentary and presidential democracies. And as the quarterly country-by-country reports of the East European Constitutional Review make clear, these constitutions have not been entirely successful in managing conflict or in curbing the exercise of arbitrary power. Were we to examine these Eastern European documents, together with other constitutions from around the world, including that of the United States, we would find, as Andras Sajo has, that they contain a bewildering variety of institutional structures, power-sharing arrangements, procedural rules, and guaranteed rights. In addition, they vary enormously in their electoral systems, representational schemes, amendatory procedures, controls on public finance, provisions for states of emergency, and the authority they confer on regional or local governments. They also vary in the degree to which they constitutionalize social, political, and economic policies; some leave these aspects of life free from constitutional review far more than others. Finally, as these comments may suggest, the world's constitutions embrace various and varying conceptions of constitutionalism itself. As for recent postcommunist constitutions, they combine features of their socialist past with structural forms and regulatory practices borrowed heavily from their Western European counterparts. Such mixed structures of presidential and parliamentary govern-ment- favoring weak presidents elected by parliament or, alternatively, strong presidents chosen in direct popular elections-are typical. Unlike the American system, the separation of powers tends to be institu-tionalized in one-house legislatures, dual executives, and constitutional courts independent of the regular judiciary, whereas checks and balances often take the form of independent central banks, abstract judicial review, parliamentary override of constitutional court decisions, presidential or legislative calls for referenda, and modified versions of Germany's constructive vote of no confidence. These constitutions also contain bulky catalogues of liberty, ranging from traditional negative rights vis-à- vis the state to positive rights that seek to satisfy basic needs, such as sufficient food, minimum wages, decent housing, productive employment, a clean environ-ment, annual paid holidays, hygienic conditions of work, and even the right of workers to participate in the management of their own institutions and enter-prises. Invariably, they bracket these guarantees with individual duties to state and society. What is more, they impose collective goals on the state; for example, a mandate to create programs that preserve the ecology for future generations, or requirements to protect consumers against dishonest market practices or to combat homelessness by developing low-income housing. And despite protections of property and inheritance designed to undergird a market economy, these constitutions often provide for substantial governmental interference in economic affairs. Constitutional policy commitments and state-empowering articles of this nature depart substantially from the political theory of earlier constitutions. Europe's post-1945 constitutions, for example, while committed to the principle of social solidarity and the essential benevolence of the state-Sajo would prefer that constitution makers be suspicious of the state- were nevertheless heavily oriented toward the procedural view of constitutionalism exemplified by the American Constitution. By contrast, postcommu-nist constitutions are surfeited with policy prescriptions and state objectives. Beyond this, they seem ambivalent about where to draw the line between democracy and constitutionalism. On the one hand, constitutional entitlements substantially curtail legislative discretion and flexibility, thereby limiting the political participa-tion of ordinary voters. Yet these same constitutions authorize various forms of direct democracy, even empowering ordinary voters to amend the constitution by referenda, including presumably the policy goals laid down in the constitution itself.

II
It is against this backdrop that we must read Sajo's study of constitutionalism. Limited Government is devoted largely to measuring the fidelity to the idea of constitu-tionalism of the above-mentioned structures, arrangements, procedures, objectives, and rights guar-antees. In a readable essay, laced with wit and verve, he finds that many modern constitutions suffer from clutter and overload-and thus from incoherence-for failing to distinguish between what is important and trivial, between what is justiciable and unenforceable, and between the domains of ordinary and constitutional politics. Sajo would doubtless endorse the view John Marshall advanced in the celebrated case of McCulloch v. Maryland (1819); namely, that a constitution by its very nature requires that only its "great outlines" be marked and its "important objects" designated, and that it not descend into the "prolixity of a legal code" if indeed its purpose is "to endure for ages to come." Limited Government begins with an engaging discussion of the origin and preconditions of constitu-tionalism. Sajo makes clear at the outset, however, that there is a great deal of difference between constitutions and constitutionalism. Written constitutions do not always serve the idea of constitutionalism (just as constitutionalism can exist in the absence of a consti-tution). He is not talking here about sham constitutions that conceal arbitrary and oppressive governments behind a façade of legality. He is refer-ring to modern constitutions, consciously designed to enhance peace, justice, and democracy. These docu-ments, too, even though adopted to promote limited government, may fall short of doing so. What then is constitutionalism? Initially, and deftly, Sajo skirts the issue, saying that a constitution is "not a collection of recipes" but, rather, a "storehouse of experiences" (p. 12). More importantly, they are the product of historically contingent circumstances and are designed to overcome the fears of the past. Accordingly, the US Constitution was rooted in "a near paranoid desire to avoid both a monarch and a popular democ-racy" (p. 2), just as the fear of Nazi rule and "the memorable horror of ungovernability under the Weimar Republic haunted the writers of the German Constitution after World War II" (p. 3). But there are present fears, too, that constitution makers must over-come if they would wish to advance or promote constitutionalism. These fears are of powerlessness, popular despotism, and various forms of neocorpo-ratism. Drawing on the wisdom of James Madison, Sajo notes that a properly designed constitution will ensure that government is responsible to the people, has the capacity to govern effectively, and will take care that popular majorities do not suppress minorities. At the end of the day, Sajo identifies constitu-tionalism by means of several characteristics. To promote or serve constitutionalism, a constitution preferably must be written; it must be the supreme law of the land; it must constitute immediately binding law enforceable by the judiciary; it must provide for a regime of separated powers accountable to the citizenry; it must be neutral with respect to divisive issues of morality and social justice; it must guarantee individual and minority rights; it must ensure that government will not become the captive of any private group or collection of interests; and it must restrict "state power in the preservation of public peace" (p. 9). Finally, if these aspirations are to be realized, a constitution must provide rigorous procedures for its amendment. Accordingly, a viable constitution-that is, one that guarantees and respects the ideal of constitution-alism- will make sure that it does not promise more than it can deliver; that it confines itself mainly to the protection of negative liberties; and that it organizes the branches of government in a way that limits state power without interfering with the effective exercise of popular government. In short, a constitutional constitution should embrace the essential core of constitutionalism, simultaneously energizing govern-ment while limiting its power. A good constitution, Sajo seems to be saying, should be lean and mean if the vital core of constitutionalism is to be protected and respected. The vital core, it is worth repeating, is that government must be both limited and efficient. Felix Frankfurter once remarked that "a consti-tutional democracy like ours is perhaps the most difficult of man's social arrangements to manage successfully." What is more, it cannot be invented overnight. Sajo seems aware of this reality. Constitutionalism, he tells us, exists in more than just a "collection of words" (p. 10). A proper constitution should reflect the history and traditions of the people whose identity it seeks to define. Yet, according to Sajo, a viable constitutionalism will remain unrealized in the absence of preconditions favorable to the estab-lishment of peace and security, the promotion of tolerance and diversity, the acceptance of institutional limits on the exercise of power, and an inclusive defi-nition of citizenship. Constitutionalism, it would seem, must inhere in the blood and culture of a people if it is to have any real chance of survival. Finally, Sajo has commanding things to say about the making of a constitution. What, for example, legitimates a constitutional assembly? The literature of constitutionalism reveals a fixation on this question. Is the drafting process open or closed? Is the assembly chosen in direct elections, by the legislature, or convened in some other fashion? Has the constitution been ratified by the legislature, in a popular refer-endum, or by a special convention elected for that purpose? Sajo's constitutionalism remains uncom-mitted to any of these procedures. What is important is that a constitution be marked by "authenticity" and rooted in the principle of popular sovereignty. Authenticity has less to do with openness of the drafting process than with the personal credibility of the constitution makers. Similarly, a constitution rati-fied by a referendum is not of a "higher order" than one adopted by conventions or legislatures. Longevity alone may be sufficient to validate a constitution so long as it grants to a people "the means . . . to deter-mine their everyday affairs" (p. 22).

III
The bulk of Limited Government consists of six chapters dealing, respectively, with separation of powers and checks and balances (chapter 3), legislative or parlia-mentary representation (chapter 4), the organization of and limits on executive power (chapter 5), the judi-ciary and rule of law (chapter 6), constitutional adjudication (chapter 7), and fundamental rights (chapter 8). The major burden of these studies is to consider whether and to what extent the particular manifestations of these structures and procedures, as they appear in various constitutions from around the world, detract from or contribute to constitutionalism. Sajo's normative judgments on some of these matters are sure to spark a spirited debate among political scientists as well as constitutional scholars. The balance of this review confines itself to points around which the debate is likely to pivot. Sajo's discussion of legislative and executive insti-tutions does not always make clear where democracy leaves off and constitutionalism begins. One reason for the confusion is the importance he attaches to limited and efficient government-rooted, of course, in a system of democratic representation. But how much of both can you have at the same time? At what point does a given system of separated powers, overlaid with a scheme of checks and balances, cause more friction than efficiency? Such things as "parliamentary consti-tutionalism," "fiscal constitutionalism," and "qualified majorities," all of which Sajo associates with the meaning of constitutionalism, are hardly calculated to make democracy efficient. Good democrats are likely to suggest that such practices are little more than a recipe for paralysis and deadlock. Perhaps the most incautious remark in the entire book is the statement that "anything that is considered unpleasant for the government creates a presumption in favor of its constitutional value" (p. 138). It is likely that political scientists will wish to qualify Sajo's treatment of political parties. "The fundamental myth of parliamentary popular sovereignty today, namely, that the members [of parliament] represent the people or the nation, cannot be sustained," Sajo writes, "in view of the party system and system of proportional representation" (p. 118). The author is deeply ambivalent, if not suspicious, of both political parties and proportional representation. In a presidential system, such as that of the United States, Sajo asserts that one-party domi-nance of the legislative and executive branches can undermine constitutionalism. In parliamentary systems, on the other hand, proportional representa-tion leads to a kind of power sharing and group autonomy damaging to both constitutionalism and majoritarianism. And the "corporatism" that Sajo sees as one possible consequence of proportional represen-tation, together with highly disciplined political parties, is described as a "pathetic idea" (p. 120), tantamount to a "dictatorship of shoemakers" (p. 5). Finally, he suggests that bicameralism, even in nonfed-eral states, contributes to constitutionalism because it helps to diminish the dominance of parties. It is worth asking whether these generalizations are empirically sustainable. Political scientists have claimed that disciplined political parties are at the heart of effective political representation in modern mass democracies. In what other way could diverse social and economic interests be aggregated for the purpose of creating a coherent set of public policies? An alter-native, of course, would be for a constitutional design to provide for the formal or informal representation of group interests, as is the case in power sharing, as opposed to majoritarian, democracies. With respect to power sharing, Arendt Lijphart, the patriarch of consociationalism, has argued persuasively that the policies and institutions of autonomy and power sharing have contributed significantly to democracy as well as to conflict management, particularly in divided societies. In short, notwithstanding his earlier comment about "the myth of popular sovereignty today," Sajo's constitutionalism is one that longs for the unbound, uninstructed, conscientious legislator, elected preferably for short terms of office and wholly committed to the common good. Relatedly, his constitutionalism is as antagonistic to the bureaucratic specialist as it is friendly to the legislative generalist. In speaking more directly to checks and balances, the author has severe reservations about broad delega-tions of power to executive officials-most particularly, to "experts" in the bureaucracy-as well as the decree-making power conferred on chief executives in many presidential systems. At the same time, he expresses ambivalence about popularly elected presidents. Presidents who are directly elected can reinforce sepa-ration of powers but may "undermine the foundations of constitutionalism" to the extent that an executive "savior who relies on the people disregards parliamen-tary constitutionalism" (p. 177). He is also skeptical of Germany's constructive vote of no confidence, owing to the difficulty it poses in dislodging a chancellor who has lost public support. Most commentators on German politics, however, regard this provision of the Basic Law as one of the major strengths of Germany's constitutional democracy. The remaining chapters on the rule of law, constitutional adjudication, and fundamental rights also advance interesting and provocative generalizations about which practices or basic liberties do or do not advance constitutionalism. Judicial independence, as the author suggests, is surely an important ingredient of constitutionalism. But the power of the judiciary to strike down legislation it deems unconstitutional is more problematical, as the impassioned and unending debate over the Supreme Court's role in American politics demonstrates. (In a recent book, Taking the Constitution Away from the Courts [Princeton, 1999], the distinguished constitutional law scholar, Mark Tushnet, makes the case that American liberty would be no less robust than it is today had the Supreme Court never exercised the power of judicial review.) Despite Sajo's general support of constitutional adjudication, as an important element of contemporary constitutionalism, he is nevertheless aware of the potential power of constitutional courts to block change and to colonize areas of law more appropriately left to legislative deter-mination. He concludes, however, that "in the last forty years, judicial review and independent constitu-tional adjudication have become effective barriers to the concentration of power in Europe" (p. 102). One wonders whether an empirical study of judicial-legisla- tive relations in Europe would sustain this judgment? Sajo's final chapter on fundamental rights includes an engrossing philosophical discussion of the meaning and justification of rights. Some readers will question his too-easy dismissal of natural law as a basis for validating the protection of certain freedoms. They will also question the statement that "there is no agreement even on the most fundamental human rights among the 'prophets' of constitutionalism" (p. 259). If these prophets are the men and women responsible for drafting and approving the Universal Declaration of Human Rights-persons who repre-sented nearly all of the world's major cultures, religions, and political systems-then Sajo is clearly wrong, as Harvard law professor Mary Ann Glendon argues in a forthcoming book (Rights from Wrongs [New York: Random House]) on the Universal Declaration. She is clearly correct in suggesting that the social and political rights laid down in the Declaration seem to be as close to a world-wide consensus that humankind is likely to achieve on which fundamental rights are most deserving of constitutional protection. Sajo is properly skeptical, however, of incorpo-rating a multiplicity of social rights, cultural values, and institutional guarantees into the text of a constitution, especially if they do not lend themselves to judicial enforcement. Yet the symbolic importance of constitu-tionalizing some social or cultural values should not be overlooked, if these values are truly constitutive of a given people. One institutional guarantee about which Sajo is dubious is the placing of marriage and family under the special protection of the state. (Germany's Basic Law and other European constitutions include such a provision.) It is interesting to note in this regard that one of the forgotten articles of the Universal Declaration declares that "the family is the natural and fundamental group unit of society and is entitled to the protection of society and the State" (Article 16 [3]). This guarantee, like all the other rights and values enumerated in this most universal of public documents, stems from the Declaration's express "recognition of the inherent dignity . . . of all members of the human family." In short, it seems eminently proper for a people to incorporate into its basic law those fundamental social values-and not merely negative rights-of liberty and justice deemed foundational to the moral life of the nation. Finally, Sajo is quite right to suggest that any constitution worthy of the name-that is, worthy of its fundamental and supreme quality as law-should be hard to amend. But should it be as hard to amend as the US Constitution? Sajo seems to think so. But whether Article V (requiring that amendments be rati-fied by three-fourths of the states after being approved by two-thirds vote in both houses of Congress) is one of the renowned stupidities or strengths of the US Constitution is hotly debated in some scholarly circles. We should perhaps be cautious in serving up Article V as a model for foreign constitution makers, and precisely out of concern for the principle of checks and balances that Sajo himself stoutly defends. The exceptionally stringent effort required to amend the Constitution partially explains the progressive expan-sion of federal judicial power over the decades, shifting far more constitutional authority to the Supreme Court than even Hamilton considered necessary or proper in Federalist 81. Constitution makers abroad should be reminded that of the 17 amendments adopted since 1789, four were deemed necessary in order to reverse decisions of the Supreme Court. One may also ask whether Article V has made it too difficult to adjust the Constitution to the democracy that America has become over the last 150 years. One popular book published in 1996 (Daniel Lazare, The Frozen Republic [Harcourt Brace]) blames Article V for the "absolute and undemocratic political structure"-an eighteenth-century structure no less-that the author believes has "paralyzed" American democracy. Although American politics is not as "frozen" as alleged, the reality is that any polit-ical- interest group with lots of money probably has the clout to kill any proposed amendment, either in Congress or at the state level, no matter how much it may be needed to remove existing defects in the constitutional structure or for otherwise improving the quality of American democracy.

IV
The reservations expressed in this review should not be allowed to detract from the general merit of Limited Government. This 289-page gem shines with the wisdom of a serious constitutional scholar, and it qual-ifies as a significant contribution to the literature of modern constitutionalism. American constitutional scholars would be well advised to require their students to read it, not only for the intelligence it reflects but also for the dispute it is likely to generate. My last remark is directed to the publisher, not the author, of Limited Government, and this concerns its lack of an index. This is an inexcusable omission, as any reviewer is likely to find, as he or she pages back and forth, interminably, in an often-futile search for a particular passage, topic, or idea.

Donald P. Kommers is the Joseph and Elizabeth Robbie Professor of Government and International Studies and also professor of law at the University of Notre Dame. He is the author of The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press, 1998) and numerous other books and articles on constitutional law and politics.

back