International relations theorist Stephen Gill developed the concept of “new constitutionalism” to characterize the legal infrastructure of the contemporary global political economy, described in this collection of essays as disciplinary neoliberalism. The institutions of neoliberalism are a familiar alphabet soup—BITs (bilateral investment treaties), TRIPS (trade-related aspects of intellectual property), the World Trade Organization, and more. According to the theorization offered in the essays, these institutions are simultaneously the product of neoliberalism and important supports for its perpetuation and extension. The essays cover a wide range, including “social reproduction” through tax policy, social support through safety-net policies, and environmental regulation. Sometimes theoretical terms descend into jargon, but not so often as to obscure the overall conceptualization on offer. As a work largely in theory, the collection is occasionally a bit thin on examples, and a thicker engagement with detail or case studies might qualify some aspects of the theory.
The new constitutionalism operates on at least two levels (with an interesting chapter by Adam Harmes on multilevel governance, regionalism, and domestic federalism complexifying the categories). There are the supranational alphabet-soup institutions, and then there are the domestic constitutions of the world’s nations. One important question running through many of the essays is the sense in which the legal arrangements supporting disciplinary neo-liberalism are truly “constitutional”—that is, entrenched or, in the formulation most commonly used in the essays, “locked in.” Perhaps more precisely, in what sense are these arrangements more entrenched than are policies adopted through ordinary, nonconstitutional politics?
Consider the thoughtful chapter on tax policy by Dries Lesage, Mattias Vermeiren, and Sacha Diercks. The chapter identifies a number of impediments to effective domestic taxation of the financial sector. These include the collective-action difficulties associated with the adoption of Tobin taxes on financial transactions, similar collective-action obstacles posed by bank secrecy laws to taxation of wealthy individuals, and the ability of multinational corporations to manipulate their internal organization so as to minimize the incidence of domestic taxes. These impediments are undoubtedly real, as well as serious. But one wonders whether they are more serious than those associated with many other large-scale policies not directly connected to neoliberalism. Similarly, one could question whether the U.S. restrictions on the ability of ordinary consumers to obtain discharges in bankruptcy enacted in 2005, interestingly presented by Adrienne Roberts, are more entrenched or locked in than any other ordinary policies.
At least as applied to the United States, the idea that otherwise ordinary policy choices are locked in might be supported by an argument about the effect on such policies of the ways in which political campaigns are financed. (Manuel Castells has made related arguments with respect to other national systems of campaign finance.) The system of campaign finance, it might be argued, gives the corporate beneficiaries of neoliberal policies systematic advantages in ordinary politics, with the effect of substantially impeding the political prospects of those who oppose such policies. The collection might have benefited from a discussion of campaign finance around the world.
Some aspects of neoliberal policy are constitutionally entrenched in the usual sense. Notably, international financial institutions have sometimes insisted that, as a condition of receiving loans and other forms of assistance, domestic constitutions be amended to require balanced budgets. Yet such requirements turn out to be somewhat more ambiguous than one might initially think.
We can approach the ambiguity by noting that Gill and coeditor A. Claire Cutler’s introductory essay emphasizes that the new constitutionalism is always incomplete, in the process of becoming, and vulnerable at every point to challenges. Other essays continue this theme, with the Occupy movement offered as the most common example, supplemented by examples of locally specific instances of resistance to neoliberal policies on environmental and land-use policy. Gavin Anderson characterizes these forms of resistance as “constitutionalism as critique,” practices in which protestors challenge the constitutional rules of the new constitutionalism. As Anderson puts it, “‘another world is possible’” counters “the neo-liberal mantra that ‘there is no alternative’” (p. 293).
Constitutionalism as critique offers alternatives to the set of rules that constitute neoliberal constitutionalism, which Anderson calls “constitutionalism as project.” Yet readers can occasionally catch glimpses of the possibility of challenges within the neoliberal constitutional project, as in Richard Falk’s essay arguing for “extending” the new constitutionalism to “security, criminal accountability, and the environment” (p. 295). The possibility of internal challenges to the new constitutionalism arises elsewhere. For example, David Schneiderman’s presentation and extension of his work on bilateral investment treaties emphasizes the fluidity of the regime, and specifically mentions the renunciation of BITs in Latin America and the Australian resolution against entering into any new BITs. He also briefly describes Australia’s willingness to submit its anti-tobacco consumption policy to assessment within the international trade regime.
Resistance within the new constitutionalism’s rules might have larger possibilities. Return now to the domestic balanced-budget amendments, probably the clearest example of the new constitutionalism’s real, rather than metaphorical, entrenchment. Such amendments are nearly universal at the subnational level in the United States, and yet budget specialists know the many techniques available to evade their restrictions. Similar evasions are likely possible in connection with the balanced-budget amendments adopted in response to demands from international financial institutions. Those institutions might sometimes object to evasions, but, given plausible legal arguments that the policies at issue are consistent with the balanced-budget amendments, what will then occur are more or less ordinary political disputes on the international level, with no guarantees that the international institutions’ position will prevail.
Some material in the coeditors’ introduction and the early chapters suggests that the conceptualization of new constitutionalism was either influenced by or converges with some themes in the U.S.-based critical legal studies movement. More explicit engagement with critical legal studies might have brought closer to the surface the possibility, stressed by critical legal studies, that every constitutional regime, neoliberal as well as classical liberal, contains within itself the argumentative resources to challenge dominant understandings of each regime. It may be worth noting in this connection that only two of the collection’s 21 authors appear to have primary affiliations with law faculties. The research program of the new constitutionalism is admirably interdisciplinary, but perhaps making it a bit more so would be productive.
Finally, and to some extent related, it might be worthwhile juxtaposing the work summarized in this collection with other conceptualizations of the legal regime of today’s political economy. At the grandest level, there is Philip Bobbitt’s discussion of the transition from the nation-state to the market state (The Shield of Achilles: War, Peace, and the Course of History, 2002), which appears to have some affinities to this collection’s arguments. And at the level of challenges within the rules, the work of Charles Sabel and his collaborators on democratic experimentalism might usefully supplement that of Gill and his collaborators.
New Constitutionalism and World Order is a well-theorized and provocative account of the legal dimensions of contemporary political economy, identifying a research program that should continue to be productive.
