The modern idea of a constitution

The invention of the modern idea of a constitution is one of the great achievements of Enlightenment thought. This innovation was a consequence of a revolutionary shift in conceiving the foundations of governmental authority. Rejecting traditional claims of monarchical rule that rested on divine right, sacred custom, superstition or conquest, enlightened thought sought their replacement by governments ‘founded on a moral theory, on a system of universal peace, on the indefeasible hereditary Rights of Man’.Footnote ⁸ Writing in the late-eighteenth century, Thomas Paine maintained that this was the moment when ‘the principles of universal reformation’ could be inscribed into the institutional arrangements of modern government.Footnote ⁹ Thereafter, the authority of government must derive from the consent of free and equal citizens. The written constitution became the primary vehicle for protecting the basic rights of citizens.

The revolutionary potential of this constitution depended on the realisation of three basic objectives. First, the constitution must be conceived as a compact through which society confers powers on government. Society precedes government and the constitution, being a thing antecedent to government, is the work of ‘the people constituting a government’.Footnote ¹⁰ The constitution’s purpose is to formulate a comprehensive scheme of governmental powers and duties that could ensure that governmental action remains directed towards realising the public good. The second function of the constitution, implicit in the first, is that it establishes a scheme of limited government. The constitution serves not only to confer powers but also to define limits, and these limits ensure that governmental action does not unduly entrench on the citizen’s basic liberties. As an act of the people that serves the purpose of binding the government, the constitution is erected on a public-private distinction. That is, the public powers of government must be subjected to the discipline of constitutional constraints so that individual liberty – private autonomy – might flourish. Its third function depends for its realisation on the constitution being able to command sufficient authority to be recognised as having established the basic rules of political contestation. The constitution must be able to bolster the authority of the office of government against the competing political forces that sow division within society. It must, in effect, establish itself as a neutral power.

These founding assumptions expressed a philosophy of classical constitutionalism. Without denying its liberating aspect, however, it can also most surely be seen to be working in the service of emerging powers. The invention of the constitution marks the moment in history when a transition is made from a dependence on ‘accident and force’ and society asserts the authority to determine its constitution from ‘reflection and choice’.Footnote ¹¹ The rhetoric surrounding this breakthrough maintains that originating power now vests in ‘the nation’ and that the constitution owes its authority to that source, that is, to ‘we, the people’. In practice, however, new constitutions mainly functioned to legitimate the transfer of political power not from the monarch to the people, but from the aristocracy to the bourgeoisie. Modern constitutions entrenched the powers of the emerging commercial class. In Rousseau’s words, they might even have done little more than to transform ‘a skillful usurpation into an irrevocable right’.Footnote ¹²

Constructed by the emerging bourgeoisie as a tool for overthrowing hereditary monarchies and aristocracies, the constitution became a key symbol of modernity. For liberals the struggle for a written constitution was the great political issue of nineteenth-century Europe.Footnote ¹³ That process reached its culmination at the end of the First World War, when, following the collapse of European empires, the adoption of a modern type of constitution prevailed across most of the continent and was subsequently extended to much of the rest of the world.

The moment it was so extended, however, was also a moment at which the assumptions of classical constitutionalism were being widely questioned. Constitutions are most commonly adopted at a moment when regimes are being democratised. And with democratisation – the extension of the franchise – came the gradual realisation that the underpinning philosophy of constitutionalism not only protects established rights against the will of newly enfranchised majorities but also institutes a system of limited government that sits uneasily in a world in which continuing social change required government to extend the range of its powers. Democratisation led to a questioning of the founding assumptions of classical constitutionalism, especially in relation to the protection of private autonomy and bolstering of a system of limited government. It also placed in question the claim that the constitution establishes an authoritative and neutral framework for regulating political conduct.

The coming of democracy gave birth to regimes of party government. Organised through the administrative delivery of public services, this system required government agencies to employ discretionary powers to address what was then called ‘the social question’. And this development soon led to constitutionalism being increasingly perceived to be an anachronistic philosophy expressing an obsolete eighteenth-century view of the world. Its objective of establishing limited, law-bounded and liberty-preserving government through the medium of institutional design appeared to be singularly unsuited to contemporary requirements.

Many lamented the resulting confusion, which was caused by the term ‘constitution’ no longer carrying the clear normative connotation of a constitution providing the key to liberty-preserving government. Contemporary constitutions, argued Giovanni Sartori in the 1960s, ‘are, as a rule, bad constitutions technically speaking’. This is because they have included many details that do not address fundamentals, they contain ‘unrealistic promises and glamorous professions of faith’, and they are ‘so “democratic” that either they are no longer constitutions (for a constitution limits the “will of the people” concept of democracy just as much as it limits the will of the power holders), or they make the working of the machinery of government too cumbersome for government to work, or both’.Footnote ¹⁴ The rise of democracy, it would appear, signalled the decline of constitutionalism.

The decline of classical constitutionalism

The question was intensely debated during the interwar period, a period in which social democratic nation-states were established across much of Europe. None were so fraught as those in Germany’s Weimar Republic. Contrary to the emancipatory rhetoric that surrounded the adoption of the American Constitution, the Weimar Constitution had been born of defeat in war, the sudden collapse of the Kaiserreich, and a general sense of disillusionment among the German people. ‘It was not that a chain was smashed by the swelling of a spirit and a will’, noted Walter Rathenau in 1919, ‘but that a lock rusted through’. ‘The chain fell off’, he elaborated, ‘and the freed men stood dazed, helpless, disconcerted, and had to take action against their will’.Footnote ¹⁵ These uncertainties gave rise to a protracted debate among German jurists about how the Constitution might establish its authority as a neutral force.

In his contribution to these debates, Carl Schmitt situated the key issue in a broad historical context by identifying three main phases of the dialectical development of the modern state: first, there is the era of the absolute state of the seventeenth and eighteenth centuries, then that of the neutral state of the liberal nineteenth century, and finally what he called ‘the total state’ of the twentieth century.Footnote ¹⁶

The total state, he maintained, is founded on ‘an identity of state and society’.Footnote ¹⁷ In classical constitutional understanding, society precedes the state (the first foundational element), whereas during the twentieth century society had become subsumed into the state. This occurs as the state evolves into ‘an economic state, a cultural state, a caring state, a welfare state, a providing state’.Footnote ¹⁸ And with this development the idea of ‘limited government’ is also superseded: ‘there isn’t anything that is not at least potentially political and of concern to the state’.Footnote ¹⁹ The state, in short, ‘comes to encompass everything social, i.e., everything that concerns the collective life of human beings’.Footnote ²⁰ The state is transformed into what is in effect a self-organised society and, with this, a second foundational plank of classical constitutionalism – that of the public-private distinction – is similarly eroded.

These developments seriously undermine the third foundational element, that the constitution could ever provide a neutral framework for regulating political conduct. They therefore challenge the notion that the judiciary is the appropriate institution to act as guardian of that order. This could conceivably be the case in the peculiar conditions of American founding, but could it be sustained more generally? In the Weimar debates, that claim was most vigorously advanced by Hans Kelsen.Footnote ²¹ But Kelsen’s arguments were immediately contradicted by Schmitt, who contended that ‘there is no longer any sphere towards which the state could maintain unconditional neutrality in the sense of non-intervention’.Footnote ²² The basic assumptions of classical constitutionalism, he emphasised, ‘all presuppose such a neutral state, a state that does not intervene, as a matter of principle, unless it is for the purpose of restoring the disturbed conditions of free competition’.Footnote ²³ Such rules might plausibly be policed by a judiciary. In the total state, however, all social questions become political questions and, potentially, they also become constitutional questions. He therefore argued, contra Kelsen, that the guardian of the Weimar Constitution cannot be a court; it must be some political agent and, given the extensive powers vested in the office, that responsibility falls to the President. If in this type of regime, the court were to perform that role and these political questions were to be converted into constitutional questions, then what results, Schmitt contends, ‘would not be a juridification of politics but rather a politicization of adjudication’.Footnote ²⁴

In the total state, the function of constitutional guardianship cannot take the form of adjudication. No amount of judicial procedure can ‘veil the fact that such a … constitutional court would be a highly political authority’ and, in so burdening it, we ‘endanger it’.Footnote ²⁵ Schmitt was surely right to indicate that, in the highly turbulent political conditions of the Weimar Republic, no court could have saved the constitution. Nevertheless, the future belonged to Kelsen. In the last decades of the twentieth century, we see the emergence of the idea of the total constitution. And with it, we also see a dramatic extension in constitutional jurisdiction. Kelsen’s argument has prevailed. But can the myth that the court acts as a neutral agency be sustained? Once constitutional review is acknowledged as being a political jurisdiction, the court’s claim to be an independent and impartial tribunal immune from partisan considerations is threatened. And if it is seen to be inextricably bound up with the prevailing forces of power and domination, this can surely lead only to an erosion of its authority.

The rise of the total constitution

Throughout the twentieth century, political actors continued to grapple with the challenges posed by the emergence of the total state and its administrative mode of service delivery. By the 1970s, concerns were being expressed about the continuing effectiveness of this type of administrative government. Inquiring into the character of these problems, Jürgen Habermas argued that the growth of the administrative state was leading to a ‘legitimation crisis’ in which the political system was not generating sufficient problem-solving capacity to guarantee its own continued existence.Footnote ²⁶ Habermas then extended this line of analysis with a series of reflections on the impact that fiscal strains, welfare burdens, bureaucratisation, and growing societal complexity were having on contemporary constitutions.Footnote ²⁷ This inquiry eventually caused him to seek to reconstruct the legitimating principles of modern constitutions. Recognising that the two main principles, those of democracy and rights, appeared to be contradictory, he sought to bring about a reconciliation by conceiving them as co-equal principles. But he was able to achieve this only by reconstructing the foundation of constitutional order on a rights-based platform. And it is this reconstruction that provides the intellectual foundation of the emerging concept of the total constitution.

The juristic implications of Habermas’s argument were later unpacked by Mattias Kumm. Just as Schmitt had claimed that the twentieth century state had become a total state, Kumm asserted that in the twenty-first century we enter the era of the total constitution. Whereas in a total state every aspect of social life can be politicised, in the total constitution every aspect of social life can be constitutionalised. In the total constitution, rights still accord certain protections against government, but they also provide a way ‘to constitutionalize all political and legal conflicts’ by establishing the general normative standards for the resolution of such conflicts. This type of claim reflects an extending constitutional jurisdiction over the latter half of the twentieth century, a development that leads to judges acquiring the authority to pronounce on ‘what constitutional justice requires’.Footnote ²⁸

The emergence of the total constitution signals the transformation of the legislative state into a juristocracy, a regime in which judges ensure that all powers are exercised with due respect for constitutional values. Since the legitimate purposes of public action are now all assumed to be inscribed in the principles of the constitution, legislative activity is converted into a type of executive action: ‘Democratic politics, executive decision-making, and ordinary judicial decision-making becomes constitutional implementation, subject to the supervision of a constitutional court’.Footnote ²⁹ Kumm further argues that there is no reason why private law should not be constitutionalised since, conceptually speaking, it now qualifies ‘as a branch of applied constitutional law’.Footnote ³⁰ For Kumm, Schmitt’s concept of the total state results from the decline of classical liberalism and leads, through administrative regulation, to the politicisation of private law. He thus calls for such legislative and executive interferences now to be constrained by constitutional rights. In effect, the total state can be legitimated only by the total constitution.

Under the total constitution legislatures continue to draft the laws but courts have an ‘editorial function as veto players’. They provide a forum for review of legislative action by affected individuals, with the language of rights being employed to protect their interests. To the complaint that this development undermines the principle of democracy, Kumm responds that ‘those who lament the demise of democracy and the emergence of juristocracy may be guided by mistaken ideas both about the point of rights and the appropriate understanding of democracy’.Footnote ³¹ In this worldview, constitutionalism is democracy.

In accordance with this totalising ideology, the constitution no longer performs the function of establishing a neutral framework through which political disputes might be negotiated. The total constitution is to be seen as an ‘order of values’. It therefore operates to prevent ‘radical political change by entrenching its basic structural features – constitutional rights, democracy, and the rule of law among them – precluding their abolition by way of constitutional amendment’.Footnote ³² One illustration is Germany’s ‘eternity clause’, which prohibits amendments to certain clauses of its Basic Law. Far more significant from a juridical perspective are prohibitions on the power to amend that have been devised by constitutional courts. Foremost amongst these is the ‘basic structure doctrine’ promulgated by the Supreme Court of India, which holds that no amendment can abrogate or alter the Constitution’s core features, including constitutional supremacy, the rule of law, the separation of powers, judicial review, judicial independence, federalism, and secularism.Footnote ³³ This mighty doctrine has influenced the formation of analogous concepts in Asia, Africa and Latin America.Footnote ³⁴

This global trend of judicial empowerment through the constitutionalisation of rights has been one of the most important recent developments in government. It is now widely accepted as conventional constitutional wisdom. As states have either adopted new constitutions or revised them to provide a charter of rights, the volume, scope, and intensity of judicial review has been strengthened. This has been accompanied by the removal of self-imposed limits on jurisdictional controls: that is, by relaxing rules on standing requirements or on determining moot questions, and by abandoning the political question doctrine.Footnote ³⁵ Armed with these newly acquired powers, courts are now ruling on a range of political and public policy questions that not long ago would have been strictly off limits.

Wielding these tools, courts have overturned contentious political decisions on such matters as speech and religion, criminal justice, immigration and health policy, national security, the electoral process, fiscal policy, the treatment of prisoners, and the legality of same-sex marriage. They now review a range of matters of considerable political significance, such as banning political parties from participation in elections to determining the legality of national welfare reform, from determining the constitutionality of a presidential impeachment to the legitimacy of a military coup d’état, from pronouncing on the validity of amnesty laws that protect perpetrators of human rights violations to determining which parts of the state may legitimately secede.Footnote ³⁶ This has been one of the most remarkable developments in government over the contemporary period.

The total constitution debated

Can this dramatic extension in the range of constitutional review be justified? If the role of the court were simply to protect the primacy of the constitution as an expression of the constituent power of the people, the case for such a broad-ranging constitutional jurisdiction would be unanswerable. As Alexander Hamilton explained in the Federalist, constitutional review is essential because if legislation contrary to the constitution were valid, the deputy would be placed above the principal, the servant above the master, and the people’s representatives made superior to the people themselves.Footnote ³⁷ But this is not the world of the total constitution.

The constitutional role of the judiciary can no longer be situated within the classic scheme of the separation of powers. We have travelled a long way from Montesquieu’s assumption that among the three basic powers of governing, ‘that of judging is … null’.Footnote ³⁸ Nor do judges confine themselves to strict textual interpretation or restrain themselves to work within the confines of precedents. Adopting theories based on the notion of ‘the living constitution’, judges now aspire to interpret not the text but the values of contemporary society. Paine had asserted that unless the constitution can be ‘produced in a visible form, there is none’.Footnote ³⁹ But it is now commonly assumed that beyond the visible there exists an invisible constitution. The Constitution, Laurence Tribe asserts with respect to the American system, ‘floats in a vast and deep – and, crucially, invisible – ocean of ideas, propositions, recovered memories, and imagined experiences that the Constitution as a whole puts us in a position to glimpse’.Footnote ⁴⁰ This metaphor has now been widely adopted and imaginatively extended to justify the judiciary’s role in moving beyond textual interpretation and seeking to determine a regime’s core values and constitutional identity.Footnote ⁴¹

The myth of judicial neutrality has been shattered. Judges now see themselves as guardians not of the constitutional text but of some notion of ‘constitutional morality’. The assertion of such a role has for several decades given rise to an intense argument in the United States. The issue first came to national prominence in 1987 as a result of the Senate’s rejection of Robert Bork’s nomination to the Supreme Court on the ground that he held a defective understanding of constitutional requirements. Bork’s view, most starkly presented in a book published following that rejection, was that constitutional interpretation had come to be determined by ‘the morality and politics of the intellectual or knowledge class’, and it led to the Constitution becoming ‘a weapon in a class struggle about social and political values’. This has meant ‘the transportation into the Constitution of the principles of a liberal culture that cannot achieve those results democratically’ and thence to judges being seduced into substituting politics for law.Footnote ⁴²

Controversy over the judges’ constitutional function has not dissipated. What has changed is that, as a result of recent appointments that have led to the establishment of an in-built conservative majority on the Supreme Court, a certain role reversal has occurred. This is signified by vehement liberal critiques of recent Court rulings, such as those denying a constitutional right to abortion or holding unconstitutional the use of racial classifications in policies designed to promote diversity of university admissions.Footnote ⁴³ One consequence has been that legal interpretation has been reduced to political argument. So much is implicitly conceded by Cass Sunstein who, in his recent book on How to Interpret the Constitution, accepts that the only way to choose between the variety of interpretative theories on offer is ‘to ask whether it would change American life for the better or worse’.Footnote ⁴⁴ This begs the fundamental political question. Schmitt’s warning that in so burdening a constitutional court we endanger it, seems to have been vindicated. Furthermore, in an era of the total constitution the threat is not just that the authority of the court is eroded; the threat is that it might erode the authority of the constitution itself.

It is true that this new judicial power remains subject to institutional constraints: courts have no independent power of initiative, they must restrict their decisions to the issue at hand, and must conform to the conventions of rational argumentation. But it cannot be denied that judges now assume the power to determine the conditions of ‘political right’, and it is not obvious that there is anything in their training, educational formation, and acquired forensic techniques that enable them to have acquired such a superior sense of political judgement. Once a political regime is conceptualised in the language of rights, it is too readily assumed that it contains an overarching framework to be attended to by the judiciary, with legislative and administration action being reduced to mere regulative policy that can be trumped by a claim of right.Footnote ⁴⁵ This both overvalues the ability of the judiciary to reach political judgements on intensely contestable rights claims and underestimates the importance of the implicit rights judgements that legislatures and other officials make.Footnote ⁴⁶

The maintenance of a variety of institutional sites of democratic deliberation and accountability are essential markers of constitutional democracy, but the paradigm shift being countenanced discounts their significance. With this, the principle of collective self-government is in danger of being overthrown. The trajectory of development towards a total constitution would thus appear to be contributing to a sense that the gulf between the people and their governing institutions is growing ever wider and is increasingly less susceptible to conventional mechanisms of control and accountability. In this respect, the paradigm shift entailed can be explained as in tune with a general process that is leading to the ‘hollowing out of democracy’.Footnote ⁴⁷

Some scholars nevertheless contest this argument. They highlight the role that courts can play in upholding democracy, and especially in ensuring that the channels of democratic representation are kept clear and operate smoothly and effectively. This argument is most closely associated with John Hart Ely, whose book on Democracy and Distrust sought to defend judicial review as performing a representation-reinforcing role.Footnote ⁴⁸ Once Ely’s argument is accepted in principle, however, its force must rest on an empirical claim: do courts in fact engage in constitutional review with the objective of ensuring that the channels of democratic decision-making are kept open and the claims of minorities are properly respected?

That claim has recently been challenged by Ryan Doerfler and Samuel Moyn, who have argued that in fact judges are ‘less well-positioned [than legislatures] to protect the minorities who deserve help and less apt to police self-dealing politicians setting out to entrench their electoral power’.Footnote ⁴⁹ They conclude that there is ‘little historical and no theoretical basis for the belief that courts will outperform legislatures in overcoming deeply entrenched historic discrimination against deserving minorities – even as courts act to entrench the power of undeserving ones, like the powerful and wealthy, today’.Footnote ⁵⁰ The strong case that Ely makes in principle for reconciling judicial review with democracy rests on mythical assumptions. Yet this has not prevented his argument being resurrected into a general process-based theory that justifies extensive powers of judicial review.Footnote ⁵¹

The dramatic growth of constitutional review over recent decades is leading to the formulation of a new species of law: superlegality. This is a type of law that trades in abstract, ahistorical principles whose explication owes more to political judgement than to legal reason. Once law is conceived as being ‘constituted by basic principles that together establish an ideal of constitutional legality’, Kumm explains, ‘then the teleology of a legal system imagined in this way is geared towards the full realisation of these principles’.Footnote ⁵² This is touted as signifying a progressive evolution, but such claims have yet to be tested.

The cosmopolitan turn

There can be no doubt about the general character of this shift in legal thought and practice. But its significance is fully revealed only when the dialectical development that leads to the reconfiguration of the relationship between the national and the global is brought into the frame. When considered purely as a domestic innovation, it is not difficult to see how legal scholars have come to view this innovation as a progressive development. After all, who could object to a move that promotes a culture of justification and requires government to respect individual rights? But the rise of global markets and, in particular, the extending powers of international organisations to structure and regulate domestic governmental action raise rather different issues. Acknowledging this, Habermas has recognised that these developments have blurred the boundary between the spheres of national and international and require the establishment of a new agenda along cosmopolitan lines. It was left to Kumm to draw out the juristic implications.

Kumm accepts that these global developments are the main drivers of the ‘paradigm shift’ in constitutional thought. Arguing that they are such that the entire state-based way of thinking about constitutionalism must be replaced by ‘the cosmopolitan paradigm’,Footnote ⁵³ he contends that today the state is legitimate only to the extent that it operates according to the principles of constitutionalism. Constitutionalism, he explains, has now emerged as an autonomous and authoritative conceptual framework that legitimates all governmental action, both nationally and internationally. The constitution’s authority no longer rests on collective will or authorisation by ‘we the people’, but on its adherence to certain abstract and universal principles of cosmopolitan constitutionalism. The essential principles are those of legality, rationality, due process, proportionality, and subsidiarity. The constitution thus acquires legitimacy only to the extent that it protects the rights of free and equal citizens.

This argument needs to be immersed in a heavy bath of realism. We do not avoid the critical questions by ‘escaping into the shapelessness of cosmopolitanism, still less into the void of the Rights of Man’.Footnote ⁵⁴ The ideals of classical constitutionalism expressed the values of classical liberalism, an ideology whose power had waned by the end of the nineteenth century. The First World War marked the watershed: ushering in a regime of democracy and administrative government, it led to the emergence of what Schmitt called ‘the total state’. And during this era classical liberalism is replaced by neoliberalism. Expressing concern about the impact of governmental interference in the economy and acknowledging that markets are not spontaneously evolving orders, neoliberals – otherwise, Ordo-liberals – recognised that a ‘strong state’ was needed to protect ‘free markets’. These ideas have gained considerable influence in the international arena, especially since the 1970s. The era of globalisation that emerged following the collapse of European empires, the revolt of the Global South and end of the Cold War went hand-in-hand with a global project to protect the world economy from political interference by democratising movements. The domestic discourse about the total constitution, then, runs in parallel with the extending powers of international institutions and a global programme of promoting Ordo-constitutionalism.Footnote ⁵⁵

Economic developments in the era of globalisation have contributed to the decline in authority of national governments and an enhanced authority of supranational institutions that remain insulated from the methods of control and accountability associated with democratic nation-state systems. For neoliberals, the aim was precisely to configure this incrementally evolving international network into a coherent regime in order to protect the world economy from political interference by democratising movements. In Hayek’s words, the objective was ‘the dethronement of politics’.Footnote ⁵⁶ Cosmopolitan scholars such as Habermas had recognised that this development exposed a legitimation gap. But his proposed solution – to democratise those institutions – overlooks the point that these international institutions had been shaped specifically to advance the neoliberal project of a world economic order freed from political interference.

The total constitution being espoused is not simply a response to the emergence of the total state: it is an attempt to displace the authority of the state by subjecting it to the discipline of supranational bodies immunised from political control. The neoliberal project that underpins it contemplates the formation of a global economic constitution to restrict the legitimate range of actions of constitutional democracies. The paradigm shift envisaged by cosmopolitan scholars – instituting the principles of legality, rationality, proportionality, and subsidiarity – locks nation-states into a world federation founded on neoliberal premises. Habermas and Kumm would appear to be advancing their claims of right without fully appreciating just how far the power dynamics that drive their movement fulfil the objectives of the neoliberal project.Footnote ⁵⁷

From a global perspective, Ordo-constitutionalism is designed to ensure that constitutional democracy safeguards economic freedoms. This is achieved at the national level by instituting a regime of constrained democracy, a model which constitutional courts have the critical role of safeguarding. At the international level, the aim is to establish a regime that protects the rights of international capital and, through the scheme of multi-level governance advocated in cosmopolitan constitutionalism, provides additional protection to rights within national systems. Constitutionalisation defends economic freedoms against attempts by democratic legislatures to enact protectionist or redistributive policies.

Ordo-constitutionalists are therefore content to embrace the rights revolution. Recognising that the constitutionalisation of social and economic rights is a response to the diminished capacity of legislatures to implement programmes of redistribution, they fully support the idea of individualised litigation monitored by constitutional courts. It is a small price to pay for a revolution that institutes a global international order to oversee the removal of national barriers to trade and investment, creates an integrated global economic regime policed by law, possesses the potential to break the authority of the sovereign nation-state, and establishes a cosmopolitan regime with enhanced protection not just for individual freedom in general and economic freedom in particular.

The federated cosmopolitan order that is envisaged erodes the distinctions between public and private and national and international and replaces it with a tiered order of individual civil, social and – crucially – economic rights. This reveals the significance of the claims advanced for ‘multi-level constitutionalism’.Footnote ⁵⁸ Cosmopolitans conceptualise the development normatively as a regime of right. Neoliberals explain how right-ordering is necessarily tied to changing economic relations of power. Reshaping of the constitutions of nation-states, it leads to the emergence of what Alexander Somek calls ‘the cosmopolitan constitution’.

The cosmopolitan constitution does not designate some constitutional formation beyond the nation-state; rather, it captures the constitution of a nation-state ‘under conditions of international engagement’.Footnote ⁵⁹ It promotes a principle of open statehood which enhances the status of basic rights, not simply by embracing an abstract idea of human rights as the universal standard of legitimacy but also by having international institutions actively police that standard. The result has been a rapid globalisation of standards enforced by comparative evaluation and extensive borrowing. This trade is strengthened and ratified through international judicial networks which regularly exchange ‘best practice’, making international human rights the benchmark against which all states are measured. The inclusion of such rights within the state’s constitution is no longer a matter of local political choice. Increasingly, it is no longer even possible to subject them to purely domestic judicial interpretation.

The total constitution is invariably a cosmopolitan constitution. Cosmopolitan constitutionalism ushers in a world of markets, voluntary associations and service agencies in networks that transcend national boundaries. It is a constitutional discourse for a world of interacting orders and permeable boundaries. To the extent that it conjures a world without boundaries, constitutionalism with a cosmopolitan purpose envisages a world if not quite yet without states, then perhaps without politics, and certainly without the pivotal significance of democratic practices.