I. Globalised constitutional law

Determining the content of globalised constitutional law is, at this point in the enterprise, mostly an exercise in interpretation based upon a reasonably wide reading of the English-language literature on constitutionalism as such. I supplement that interpretation with my conclusions from unsystematic searches in the database of constitutions in force available through the Constitute website.^{Footnote 5}

The globalisation of constitutional law has a structural component and a rights-related one. The structural component is relatively modest. In one formulation, global constitutional law requires ‘pluralist, open liberal constitutional democracies’.^{Footnote 6} To qualify as a liberal democracy (in the structural dimension), the nation’s system must have roughly democratic processes for choosing representatives and high executive officials, with some possibility of referenda on selected topics (but not too many, lest the system become ‘populist’ in a pejorative sense). The franchise must be relatively widely available, with no obvious systematic exclusions other than youth, and it should be exercised to some substantial degree across all relevant social categories.^{Footnote 7} Elections must be relatively free and fair, requirements that have some relation to rights of expression.^{Footnote 8}

The structural requirements have a bit more content than that, though. Global constitutionalism does not dictate a choice between presidential/separation of powers systems and parliamentary ones, but it does support some limits once that choice has been made. In presidential systems, for example, the chief executive should be eligible for re-election no more than once, and the chief executive’s term should be no longer than seven years. In parliamentary systems, elections for parliament should occur no less frequently than every seven years (absent truly extraordinary circumstances of acute national emergency). And, every nation should have a court empowered to hold unconstitutional, as inconsistent with rights-based constitutional norms, executive actions authorised by law, primary legislation, and secondary legislation.^{Footnote 9} Finally, there should be some mechanisms for courts, whether the ordinary courts or a constitutional court alone, to address complaints brought by individuals about a statute’s application to them in specific cases – a constitutional-complaint mechanism of some sort rather than ex ante, pre-enactment review only.^{Footnote 10}

A first clue to the ‘deeper’ ideological content of global constitutionalism is that these structural components track the content of long-established constitutions of core nations in the global North. Another clue comes from the rights component of global constitutionalism, the ‘open’ and ‘liberal’ requirements. The rights component is obviously thicker than the structural one. The rights component requires protection of freedom of expression and of the press, freedom of religion and conscience, and the like – rights at the heart of international instruments such as the International Covenant on Civil and Political Rights (but not everything included in those instruments), or, alternatively, rights characteristic of ‘first generation’ liberal constitutions. These rights are stated in abstract terms, leaving room for disagreements across nations about what precise content the rights have. Still, some specifications of the abstract rights are almost certainly excluded from the rights component of global constitutionalism.

One right is especially important – the right to private property. It has two facets. One is a norm against un- or under-compensated expropriation of property rights the nation acknowledges. The other, more difficult to specify, is a norm requiring relatively strong justifications for a decision to prohibit property rights in some things. Global constitutionalism allows exclusive public ownership of some things, but not what once were called the ‘commanding heights of the economy’. That is, global constitutionalism strongly favours private ownership of important national industries.

The status of second-generation rights in global constitutionalism is also difficult to specify. It seems reasonably clear that global constitutionalism is not hostile to second-generation rights as such. Their status may be a bit stronger. Global constitutionalism may require something like a generic commitment to what the German Basic Law calls a Sozialstaat or what in US political discourse is called a social safety net. And, perhaps, including a more clearly specified list of basic social welfare rights – to education, shelter, food, and water, for example – might be favoured.

These second-generation rights are not on a par with first-generation ones, though. When included in a constitution, they are to be progressively realised within available resources, to use the standard formulation, rather than immediately and coercively enforced, as the first-generation rights are. Or, their achievement is an aspiration, not to be enforced except through political means. Or, perhaps, global constitutionalism requires satisfying a minimum core of second-generation rights.

A latent tension between the right to property and second-generation rights sometimes surfaces – and when it does, global constitutionalism probably favours the right to property. We can put to one side strong libertarian arguments that the taxation needed to support the provision of second-generation rights itself is a violation of property rights; whatever might be said of such arguments as a matter of domestic constitutional law in specific nations, global constitutionalism does not accept them. But, sometimes provision of second-generation rights will involve more or less straightforward appropriations of private property – diversion of water from upstream owners to downstream users, for example, or, as in South Africa, substantial restrictions on the right of owners of under-utilised buildings to evict unauthorised occupants, in the name of the right to housing. In such cases a great deal of work will be dome by proportionality doctrines, both with respect to the permissibility of an uncompensated taking and with respect to the constitutionality of whatever compensation the nation does provide.

It is probably worth observing as well that global constitutionalism says nothing about third-generation rights. Their recognition is entirely optional, within the framework of global constitutionalism. One reason, of course, is that third-generation rights are not widely recognised in domestic constitutions. Another, though, may be that third-generation rights are much more closely associated with the global South than the global North,^{Footnote 11} and global constitutionalism is, as I have suggested, a project of the global North. And, finally, recognising some third-generation rights can create severe tensions with property rights, in two directions. Third-generation rights might bar some transactions between indigenous communities and resource-extraction companies, violating – in some sense – the property rights of the indigenous communities. And, third-generation rights might impose substantial limitations on existing property rights of those resource-extraction companies, precluding them from engaging in resource extraction that is ordinarily permitted to property owners.^{Footnote 12}

The picture of global constitutionalism in domestic law, then, is this: Strong guarantees of first-generation rights; modestly favouring second-generation rights, probably to the point where their recognition in domestic constitutions is not entirely optional from the perspective of global constitutionalism; third-generation rights as completely optional; and, a preference for property rights when conflicts between those rights and second- or third-generation rights arise. One might be sceptical about calling this a picture of a ‘globalised’ constitutional law except in the sense that it takes the priorities of the global North are appropriate for nations everywhere. In the Conclusion I endorse a qualified version of this scepticism.

II. Twenty-first century neo-liberalism

The picture just sketched is at least compatible with a broader neo-liberal ideology, at least with respect to what it places in the background or underemphasises. An important component of neo-liberal ideology is distrust of popular politics, which, neo-liberals believe, can interfere with economic policies that promise long-run growth even as they inflict short-run pain. The structural requirement in global constitutionalism of rights-protecting courts reflects a distrust of popular politics as well, though (except with respect to property rights) with respect to other domains. And, it bears noting, nothing in global constitutionalism requires that courts cast a sceptical eye upon economic policies that might be adopted in response to neo-liberal ideology directly or, sometimes, in response to external pressures.^{Footnote 13}

Neo-liberalism is indifferent to economic inequality in the short run, but it has come to terms with the modern social welfare state. Neo-liberalism, that is, is not a programme for return to unregulated laissez-faire public policy. In what its proponents regard as appropriate circumstances, neo-liberalism will push for austerity programmes that cut back on social provision. But, ordinarily, the neo-liberal defence of such cutbacks is not that they are required by deep principle, as would true in a laissez-faire constitution, but rather that such cutbacks will spur economic growth that, in the end, will guarantee stable funding for social provision in the long run. This is compatible with the place of second-generation rights in global constitutionalism: not opposed, but not a high priority.^{Footnote 14} Relatedly, the general view in global constitutionalism that social welfare rights are not to be enforced as vigorously as are political and civil rights – that coercive orders are generally inappropriate – is consistent with a neo-liberal view that accepts second-generation rights but seeks to limit their application.

Deregulation and privatisation of public services are also components of neo-liberalism. Their connection to global constitutionalism is, I think, tangential. Property rights and the freedom of occupation can make some inroads on the regulatory state, as in decisions overturning entry barriers to ordinary occupations, and some consumer disclosure regulations.^{Footnote 15} The inroads will be modest, though, because most important regulations will survive the proportionality review that has become standard.^{Footnote 16} Yet, as I have argued elsewhere, the deep structure of proportionality doctrine in these marginal cases entails suspicion of ordinary interest-group bargaining in generating legislation.^{Footnote 17} To that extent, even the modest applications of property rights to attack excessive regulations support the aspect of neo-liberalism that is suspicious of popular governance.

Globalised constitutional law has little to say, I think, about privatisation of public services.^{Footnote 18} There have been some efforts to treat public property such as beaches and water as not subject to privatisation. The argument appears to be that this property is actually owned by the nation’s people collectively (and held in trust for them by government bodies), so that privatisation amounts to a taking of the people’s property. My sense is that these arguments have not gained much traction, perhaps because they stretch the idea of the constitutionally protected property right too hard, and perhaps because privatisation involves the sale of the property – that is, involves payments to the government that can be seen as compensation for the taking.

How do classic first-generation rights fit into neo-liberal ideology?^{Footnote 19} Primarily, I think, by guaranteeing that supporters of neo-liberal policies have a voice in political life. That guarantee may well have a disparate impact upon politics. The thought here is that neo-liberal policies are disproportionately favoured by economic (and cosmopolitan) elites who are better positioned in politics than the relatively less well-to-do opponents of those policies. This is probably most dramatic in connection when private financing of political campaigns has some constitutional protection. Here my sense – subject to additional research – is that global constitutionalism permits ‘reasonable’ regulations of direct private contributions to political campaigns, but that substantial restrictions are likely unreasonable.^{Footnote 20}

Many of the implications of economic inequality and property rights for free expression are practical rather than conceptual; the connections could be broken, for example by regulations found to be proportionate to the problems they address, without fracturing the global constitutional requirement of commitment to freedom of expression. One connection, though, might be harder to break. This is the constitutional treatment of what in US election-law discourse are called ‘independent expenditures’ supporting candidates and policies.^{Footnote 21} On nearly every plausible account of robust free expression rights – which is to say, within the global constitutional consensus – regulations of independent expenditures are extremely difficult to justify.^{Footnote 22} The problem, from the point of view of those sceptical about global constitutionalism, gets even worse when the concern is with privately owned media that play a disproportionate role in shaping public discourse. I think the prevailing view within global constitutionalism is (and probably must be) that media outlets play that role because of ‘natural’ economic growth: Setting aside their political agendas, media outlets gain a dominant position because they satisfy antecedent consumer interest; that is, they give consumers the non-political material they want from the media. Limiting the right of those who own dominant media outlets to add into their products political views is, once again, difficult to justify within a consensus that gives freedom of expression robust protection (and, perhaps, even to core notions of private property).^{Footnote 23}

I turn now to some possible disjunctures between global constitutionalism and neo-liberalism. The first is the double-edged nature of property rights. Global constitutionalism requires protection of property rights, but in the nature of the project it cannot specify those rights in much detail. That has given constitutional courts opportunities to obstruct or at least slow down the implementation of some aspects of neo-liberal economic policies. So, for example, some European constitutional courts have developed doctrines they associated with core rule-of-law ideals that require neo-liberal economic policies to take account of settled expectations about the regular receipt of social assistance payments; the effect of these doctrines is to require that implementation be gradual rather than abrupt.^{Footnote 24}

Even more, the classic idea of property rights developed over the course of the twentieth century to treat some rights arising out of social assistance programmes – pensions most notably – as ‘vested’ rights that cannot be ‘taken’ (without compensation). Invoking that concept, the Portuguese constitutional court rejected as unconstitutional austerity measures that reduced the pensions of public employees.^{Footnote 25} Still, it might well be that independent courts implementing global constitutional values will on balance favour rather than obstruct neo-liberal policies; that at least is my sense of the effect of doctrines that slow the pace of neo-liberal austerity programmes without preventing their implementation entirely.

A final thought connects global constitutionalism on the domestic level – my primary concern – with global constitutionalism as a project dealing with international and transnational bodies. I have suggested that global constitutionalism on the domestic level is a largely neo-liberal project. Its primary effect is to limit substantial expansion of the welfare state or, in some places, to inhibit the development of a robust system of social provision prior to hoped-for economic growth. The neo-liberal economic agenda has also included encouragement of austerity as a response to economic distress, with the ‘encouragement’ sometimes taking a strong form of conditioning international economic assistance on adoption of austerity programmes. That was the source of pension reforms in Hungary and elsewhere, for example. International financial institutions have pressed for the domestic adoption of austerity programmes. Perhaps – though those institutions are outside my primary area of specialisation – global constitutionalism at the international level supports their participation in the neo-liberal project.