Early American republic

America during the founding era and the early republic is the most obvious historical case of constitutional construction in which strong judicial emphasis performed reflexive functions for the political system. Indeed, this period forms a prototype for subsequent processes of judicial constitutionalisation. Throughout founding-era America, the gradual elaboration of a constitutional order with strong judicial components played an important role in enabling the political system to adapt to a societal background of acute legislative insecurity and weak legitimacy. In so doing, the judicial constitution also acted to consolidate the foundations of the political system as a body of institutions able to apply political power through society at a reasonable level of self-reliance and inner consistency, and it had vital importance in raising the general capacity of the political system for the autonomous use of power.

To illustrate this, for example, well before 1787–1789 the judicial branch of government had acquired unusual prominence in the American polities of the colonial era, and this assumed decisive significance in consolidating these polities during and after their separation from the British crown. Throughout the later colonial era, semi-independent judicial rulings in American county courts had already created a quasi-constitutional setting in which colonial polities had been able to appeal to higher, institutionally extracted norms to organise their activities, and this established a foundation on which particular American states could ultimately assert and justify independence from Britain. In fact, the initial impetus towards American independence was triggered by the fact that the colonial states rejected the Blackstonian doctrine of parliamentary sovereignty accepted in England, and they invoked higher justiciable norms, often even phrased – inchoately – as rights, in order to oppose parliamentary legislation and to claim independent legislative power (see Reid, Reference Reid2003, p. 4; Bradburn, Reference Bradburn2009, pp. 27–29). During the great crisis of imperial authority in the 1760s, courts on occasions appealed simultaneously to the colonial constitution, to notions of natural law, and to concepts of rights in order to criticise, overturn and even declare unconstitutional controversial acts of royal legislation (see Morris, Reference Morris1940, p. 431; Williams, Reference Williams1940, p. 126; Bilder, Reference Bilder2004, pp. 195–96; Reference Bilder2007, p. 542; Reference Bilder2008, pp. 7, 19; Grey, Reference Grey1978, p. 880). By this time, courts had clearly begun to articulate a set of normative principles by which colonial polities were able, albeit very tentatively, to express their legitimacy in independent terms, and constitutionally to construct themselves in relatively autonomous fashion. In the first decade of state constitution writing after independence, then, judicial bodies continued to assume distinctive prominence as institutions that were equipped, during a period marked by extremely contested institutional legitimacy and juridical exceptionalism (Rakove, Reference Rakove1999, p. 1940), to produce reasonably stable and extracted norms for the creation of interim polities, and to provide normative support for new acts of legislation. Notably, a number of the first state constitutions written after 1776 even contained clauses providing for judicial review of new statutes,Footnote ²¹ and they invoked judicial norms as instruments for reinforcing the authority and legitimacy of legislation passed in the first era of tentative polity building after independence. Throughout this period, in fact, judicial power was utilised to project a higher constitutional justification for the weakly consolidated political structures of the American states. This served to insulate the nascent political systems of the American states against pressures arising from their structural weakness, it brought cohesion to rapidly founded polities, and it generated procedural reserves of legitimacy to support the use of power by political actors endowed with only deeply fragile structural autonomy.

As is well documented, the salience of judicial power in revolutionary America eventually culminated, in 1787–1789, in the establishment of the Federal Constitution, which gave unprecedented influence to the judiciary, and began to formalise the powers of judicial actors to approve and veto legislation. The Federal Constitution itself contained only sketchy provisions for separate judicial authority. However, the already very strong judicial dimension of American constitutionalism was substantially hardened in the Judiciary Act (1789), which established a Supreme Court with power to act as arbiter in questions of constitutional authority and contested legislation.Footnote ²² In the course of its institutional consolidation, the Supreme Court brought a number of structural benefits to the state of the early American republic, and it contributed greatly to stabilising the apparatus of federal statehood as a whole. At a practical level, the court performed the function that, in applying rights-based legal norms to validate legislation,Footnote ²³ it elevated the constitutional source of the state's legitimacy above the immediate operations of daily government, it gave extracted prominence to the norms of the constitution as principles to authenticate and authoritatively to insulate legislation as it was enforced through society, and it enabled the state (at both federal and regional level) to assert and promote uniformity in the laws applied throughout its territories.Footnote ²⁴ At a more submerged functional level, the court generated an institutional design in which the state could call on the judiciary to produce additional legitimacy for new laws, and it meant that the state was able to draw legitimacy from a body of norms that were internally secured inside the political system yet also relatively withdrawn from the most intense cycles of politicisation around the state. This meant in particular that the most highly controversial matters of legislation could be deflected away from the most politically implicated departments of the political system, so that the state was not endlessly exposed to immediate or uniquely concentrated conflicts over legitimacy: the production of legitimacy for particular acts of legislation was removed from strictly legislative institutions, and the legislature was able to rely on secondary sources of legitimacy conserved within the judiciary. This became especially significant after the passing of the Bill of Rights in 1791. The addition of a Bill of Rights to the original constitution of 1789 meant that the most potentially destabilising controversies of the early republic, especially questions concerning federal–state relations, could be referred to actors in the judiciary, and subject to extracted and partially depoliticised normative adjudication. This meant in turn that the intensity of political controversy was divided between different actors within the state, that no single focus of authority was over-burdened with potentially destabilising controversy, and that acts of law could absorb additional legitimacy through secondary judicial ratification.

Throughout the era of revolutionary transformation in America, in consequence, judiciaries assumed a highly distinctive functional position in the emerging constitutional system. The American republic was formed in a sociopolitical setting in which (both before and after 1776) the legitimacy of the political system was fragile and defined largely ex nihilo, the ability of the emergent national state to authorise legislation in the face of complex opposition and diffuse, loosely integrated societal environments was questionable, and outcomes of legislative acts were deeply uncertain. The highly judicialised rights-based constitution which evolved between the late pre-revolutionary era and 1789 then, in part, enabled the nascent political system to adjust to this structurally unsettled setting, and both the prominent position of judicial actors and the application of rights to control and authorise legislation assumed vital importance in enabling the political system to stabilise itself against this environment. At one level, this rights-based judicial focus enabled the new American polity both to define its legitimacy against an alternative source of power (the imperial authority exercised by the Westminster parliament), and it made it possible for this polity to operate at a manageable level of autonomy in a setting in which external reserves of legitimacy (social consensus) were rather weak, and a stable normative horizon for the transmission of political power could not easily be presupposed. At a different level, the judicialisation of its constitution served to weaken the state's dependence on external sources of legitimation, and to ensure that normative sources of legitimacy for legislation were stored, at different locations, inside the inner fabric of the state itself. In each respect, the judicial constitution acted to instil an internalistic construction and projection of legitimacy within the political system, and this served immeasurably to elevate the state's capacity for autonomy and equal social control. For example, the fact that the state accounted for itself as drawing legitimacy from recognition of rights held by generalised single subjects meant that it was able increasingly to reach across the deeply embedded structures of local power, and to draw all members of society (as a nation) into an immediate relation to state institutions. The judicial reference thus allowed the state to configure society as a relatively uniform environment for the use of power. Moreover, the judicial emphasis of the constitution meant that a political system could evolve in which, across diffuse and volitionally uncentred territories, lower courts assumed partial responsibilities for law-making, general social inclusion and even political structure building.Footnote ²⁵ Despite its compound character, the political system was able to produce and enforce legislation at a reasonable level of consistency. On the basis of its judicial constitution, the early American republic developed as a federal state marked, for the standards of the late eighteenth century, by a relatively advanced degree of integrity and autonomy (Edling, Reference Edling2003, p. 219). The early American republic formed the classical example of a political system that utilised a judicial constitution to reduce its vulnerability to internal and external contingency, to generate secondary sources of legitimacy for legislation, and generally internally to augment its basic autonomy.

New democracies after 1945

The second period of highly judicialised constitutional construction occurred in the wave of post-authoritarian transitions, which took place in Europe after 1945. The two main examples of this were the constitutions established in Italy (1948) and the Federal Republic of Germany (1949). Both of these constitutions provided for the eventual institution of Constitutional Courts with far-reaching powers for review of statutes, and both these courts played a vital role in solidifying state institutions that traditionally lacked solid structure and legitimacy.

In both Italy and West Germany, the formation of a judicialised constitutional order responded in some respects to societal pressures and fulfilled systemic purposes similar to those characteristic of post-1776 America. In fact, after 1945 these functions of judicial constitutionalisation began, to some degree, to assume politically reflexive status, and courts were strategically deployed in new constitutions because of their functional status.Footnote ²⁶ In both postwar Italy and West Germany, the existence of Constitutional Courts created a vital additional residue of legitimacy for the political system, it brought internal cohesion to traditionally weak institutional structures, and it facilitated the internalistic production of legitimacy in the political system. Above all, these courts significantly elevated the statutory autonomy of the state and the capacity for the abstracted use of power possessed by the state, and they helped immunise society as a whole against problems induced by weak political abstraction.

In Italy, for example, the Constitutional Court, which began to hear cases in 1956, created a normative forum in which legislation could be concretely checked against higher-norm principles, which were partly based, under Article 10 of the constitution, in international law. The Constitutional Court brought several structural benefits to the political system. Notably, it instilled a reservoir of legitimacy within the state to support particular acts of law, it insulated legislation against unmanageable contestation, and it proposed a normative construction of political order able to unify powers in the state and cohesively to overarch the use of power through society.Footnote ²⁷ In addition, the court helped to ensure that power could be distributed through society in reasonably stable legislative procedures, and that norms centrally defined by the state acted as the primary basis for all legislation in society (Luther, Reference Luther1990, p. 78). On the one hand, this brought the advantage that it helped both to expand (otherwise highly depleted) confidence in the legal integrity of the state and to augment potential compliance for legislation. In so doing, vitally, it enabled the state to legislate with greater freedom over controversial issues across society (Volcansek, Reference Volcansek1994, p. 495; de Franciscis and Zannini, Reference De Franciscis and Zannini1992). On the other hand, more importantly, in determining fixed norms for the authorisation of legislation, the court ensured that the possibility of gaining access to state power was made subject to formal procedural control, it restricted the private and local dissipation of state power which had afflicted pre-1945 Italian politics in endemic fashion, and it concentrated society's reserves of power within the state (Bartole and Vandelli, Reference Bartole and Vandelli1980, p. 180). In both respects, the Constitutional Court helped to cement political power in a clearly delineated set of institutions, and in defining the state as an actor marked by a clear and objective normative order it significantly enhanced the autonomy of the political system.

In West Germany, the Constitutional Court assumed similar functions, and its construction of a clear set of norms, based to some degree – following Basic Law Articles 25 and 100(2) – in international law, to regulate legislation contributed vitally to the consolidation of the political system in the post-1945 transition. After the West German court became operative in 1951, notably, many of the most unsettling controversies concerning the legitimacy and direction of the new democratic state were deflected to the court for review, and the court frequently acted to intercept highly charged disputes over legislation and to soften antagonism attached to these issues. This can be seen in numerous cases. But it is exemplified most clearly in the court's early handling of cases regarding freedom of opinion. In the most decisive of such cases, the court, as point of principle, stated that all basic rights (private and political) had fundamentally constitutive status for West German democracy, and thus, implicitly, that all social exchanges (public and private) were subject to normative guarantee by the court.Footnote ²⁸ In one respect, to be sure, this was a highly expansive political decision, which dissolved classical boundaries between the public and the private domain: it meant that the court assumed power to dictate the external political form of society as a whole. This decision projected a comprehensive normative value of a society based in private and public rights, and, in implication, it expanded the boundary of the political system to include normative regulation of all society. At the same time, however, in this judgment the court situated itself as a filter between society and other branches of the political system, and, in indicating that all disputes over basic rights needed to be referred to the court, it acted both to obstruct the undiluted convergence of social contests around the state (Stamm, Reference Stamm2001, p. 18), and to define the form in which social interests could be specifically politicised. At a practical level, therefore, the growing rights jurisprudence of the court enabled the legislature to avoid the most immediate confrontation with deeply politicised conflicts regarding questions of legitimacy, and it permitted the political system as a whole to invoke superior norms, reposed in the court, in order to support the authority of legislative acts, to ensure uniformity in judicial ruling throughout the federal territories, and to filter and police societal conflicts as they were directed towards the political system.Footnote ²⁹ At a more fundamental level, the court made it possible for the newly established state to project an extracted construction of its legitimacy and authority, which was substantially distinct both from the momentary functions of the political system and from specific concrete actors within the state. It is no coincidence that one leading early observer of the Bundesverfassungsgericht described the court as an organ that finally conferred ‘real unity’ on the German state as a whole (Leibholz, Reference Leibholz1957, p. 111). As in Italy, the court finally permitted the West German state to assume encompassing organic cohesion, and so to overcome the traditional pathologies of German statehood: that is, high political personalism, low independence of public office, haphazard circulation of authority between government and opposition, and general weak reserves of autonomy.

In both Italy and West Germany, in sum, Constitutional Courts projected a normative order which provided a vitally important secondary, encompassing basis of legitimacy for the political system. This made it possible for the state as a whole to insulate its weakly embedded, transitional form both against externally destabilising societal conflicts and internally destabilising disaggregation, it facilitated the uniform circulation of power through society, and it enabled the state to presuppose a store of legitimacy which it was not required endlessly to generate and reproduce. For these reasons, these courts served to promote confidence in the political system, and to intensify both the effective power held within the state and the level of autonomy at which this power could be utilised. In both Italy and West Germany, the ability of the state to propose itself as autonomously holding a monopoly of legitimate power had traditionally been rather limited. This weakness, albeit only partially in the case of Italy, was ultimately rectified by the institution of a Constitutional Court, through the ratification of statutes by courts applying rights norms, and through the pronounced judicialisation of the constitutional system. As in the first process of judicial constitutionalisation in post-revolutionary America, judicial emphasis assumed clear inner-systemic functions for post-1945 states. Above all, it enabled states internalistically to pre-construct and preserve their legitimacy, it immunised the political system against inner loss of integrity, and it dramatically increased the capacity of states for independent uniform law-making.

Recent democratic transitions

More recent processes of political transformation and re-foundation have witnessed an intensified growth of constitutions with strong judicial dimensions. Indeed, during more recent state-founding transitions, judicial power has retained and even accentuated its functional attributes in earlier polity-building settings.Footnote ³⁰ In these transitions, judicial constitutionalism has again acted to generate supplementary reserves of legitimacy for structurally unconsolidated political systems, and it has provided mechanisms for hardening the political system against exposure to high levels of internal and external disruption. In each respect, it has acted as a vital instrument in preserving the political system as an abstracted autonomous actor in society.

These sociological functions of judicial constitutionalism assumed singular significance in the lines of democratic re-foundation in post-authoritarian polities in Eastern Europe before and after 1989. In many transitional societies in this period, the process of constitutional reorientation contained an unprecedentedly strong judicial dimension. For example, in Hungary and Poland, one key determinant of democratic transition was the fact that these states had instituted semi-independent constitutional tribunals well before 1989.Footnote ³¹ In both these countries, leading judicial actors, influenced by the international rights norms enunciated in the Helsinki Accords, had already begun to project an independent normative basis for the use of state power before the Communist regimes collapsed (Thomas, Reference Thomas2001, pp. 169–94). From the outset, therefore, the transitions in Poland and Hungary were shaped by the fact that judiciaries were in a position to propose an extracted definition of the state as constitutionally distinct from its momentary actions, and courts instilled an abstract normative model of legitimacy in the political system, which acted at once as stimulus, foundation and objective for legislative reform.Footnote ³² In the longer course of the transition after 1989, subsequently, both Hungary and Poland developed political systems in which courts exercised their autonomy to project quasi-constitutional parameters for state actions. In both these cases, courts claimed the authority both to interpret existing constitutional provisions and to implement principles of international law, especially regarding human rights provisions, in order to generate binding principles for control of legislation, and they assumed great normative power as agents able to oversee and protect the first stages in the process of constitutional consolidation.Footnote ³³ In devising a normative basis to check and authorise transitional legislation, courts functioned in Hungary and Poland de facto as a self-constructed constitution, and they employed their normative power to preserve the co-ordinate branches of government against loss of legitimacy caused by uncertainties of transition, distrust of political elites, and weak democratic familiarity, and effectively to unify and bring cohesion to different departments of the emergent state (Brzezinski, Reference Brzezinski2000, pp. 108–109; Schiemann, Reference Schiemann2001, p. 357). In these settings, courts articulated a set of normative premises on which hastily structured states were able to organise their legislative functions at a reasonable level of consistency, to absorb and compensate for uncertain external legitimacy, and internally to solidify foundations for legislative security and legitimacy. Across different patterns of national democratic transition after 1989, in fact, powerful judiciaries, concentrated in strongly protected Constitutional Courts, routinely bundled together the typical functions of constituent, legislative and judicial actors. As in earlier cases of judicial constitutionalisation, courts performed the function that they generated strong internalistic reserves of legitimacy for states confronted with extremely unpredictable objects for legislation, and they clearly reinforced the operative autonomy of tentatively emergent democratic polities.Footnote ³⁴

In these historical examples from the 1770s to the 1990s, it is possible to identify a series of social conditions in which constitutions with a strong judicial emphasis bring specific functional benefits for society. Most strikingly, the construction of highly judicialised constitutions obtains particular functional utility in polity-building exercises, which are marked by insecure external legitimacy and unstable compliance for legislative acts. Judicial extraction and application of founding norms provides a vital secondary, highly internalistic or even self-constituted reserves of legitimacy for the political system in societal settings in which external legitimacy is not solid, institutional integrity is low, and support for legislation is generally questionable. On this basis, it is possible to speak of constitutions with potent judicial dimensions as institutions which permit political systems to adapt to conditions of high societal contingency and deeply precarious legitimacy. In all cases examined above, judicial constitutions have contributed and indeed continue to contribute to raising the autonomy of state power, and to enabling state actors to abstract their power as a usable and reproducibly transmissible phenomenon, even in societal conditions of extreme external inconsistency.

Early American republic

The most important early example of the use of judicial constitutionalism to offset and compensate for weak constituent power can again be found in the founding period of the American republic. In post-revolutionary America, in particular, the powerful judicial dimension of the constitution had the notable function that it allowed the federal state to presume general democratic legitimacy for its functions despite the fact that its external popular support was disputable and tenuous. Indeed, it allowed the state to claim consensually acceded legitimacy for its laws despite the fact that it lacked foundations in a fully cohesive constituent power. To be clear on this point, the Federal Constitution assuming force in 1789 had been approved by ratifying conventions of the thirteen constituent states of the American republic, and it was able, on that premise, plausibly to project itself as authorised by an originating democratic constituent power. At the same time, however, the constituent legitimacy obtained by the constitution was symbolically weak. One reason for this was that the Federal Convention, which wrote the constitution in Philadelphia in 1787, was not marked by the proximity to popular delegates possessed by some of the bodies that drafted state constitutions in and after 1776: the Federal Constitution was perceived as lacking the immediate grounding in popular sovereignty from which earlier state constitutions had extracted legitimacy.Footnote ³⁶ One still more important reason for its weak legitimacy was that the Federal Convention was the product of delegated constituent power. That is to say, it was written by actors claiming authority through secondary constituent power, which had been devolved by the primary constituent power of the states to the Federal Convention, so that, although the Federal Constitution purported to derive legitimacy from an original popular will, it was the states themselves, not any immediate organs of ‘the people’, which acted as the constituent power sustaining the constitution.Footnote ³⁷ In consequence, the constitution could only presuppose a relatively weak external constituent force to underwrite its legitimacy. Its originating reference to constituent power was rather remote, and it provided only somewhat insubstantial founding legitimacy for the compound, disparately federal character of the emerging state of the American republic (Ostrom, Reference Ostrom1987, p. 152). Owing to this weakness of constituent power, moreover, the state structure of the early American republic inevitably evolved on a somewhat loosely centred and diffusely authorised institutional pattern. Although capable of relatively advanced autonomy and securely centralised for a federal state in the late eighteenth century (Riker, Reference Riker1987, p. 9), the early American republic lacked immediately authorised integrative force, and the general institutional cohesion of the state remained moderate.

Under such circumstances of weak constituent power and consequent reduced internal institutional integrity, the judiciary soon assumed vital status in constructing and preserving the state apparatus of the early American republic. As examined, the passing of the Judiciary Act of 1789 led rapidly to a partial displacement of power from the Congress to the judiciary in the early years of the American Republic. At a surface level, this had the practical outcome that the state was able to borrow from the judiciary a unifying set of norms (based in rights) to support and bring consistency to its legislative acts, and the judiciary played a vital role in bringing some degree of integrity to the diverse legislative organs (both federal and state level) of the American federal state. In extracting from the state a body of norms to authorise federal legislation, the court projected an image of juridical unity, through which the disparate organs of the political system were brought into reasonably articulated relation to one another and laws were authorised in broadly consistent fashion. In many respects, in fact, the judiciary acted as the primary integrating organ of the state, and it was only in the judiciary that the federal state as a whole obtained symbolic gravity and uniform legislative consistency (often called sovereignty) (see Lacroix, Reference Lacroix2010, p. 201; Skowronek, Reference Skowronek1982, pp. 23, 25, 27–28). At a deeper functional and conceptual level, however, the prominence of the judiciary as a set of organs for reviewing and affirming legislation in the light of rights meant that the post-1789 American constitutional order as a whole was able to store an account of itself as legitimised by a distinct and cohesive will, and the judiciary, culminating in the Supreme Court, transformed the normative corpus of the (uncertainly authorised) constitution into a consistent set of principles able internally to accompany and validate general acts of legislation. As has been widely noted, the early American republic was based in Madison's theory of divided – or, in my view more accurately, concurrent – sovereignty, in which the original constituent sovereignty of the American people (or, more properly, the American nation) was exercised, fractionally, both by the different confederated states and by the federal state as an encompassing entity (Lacroix, Reference Lacroix2010, p. 103; Pinnegard, Reference Pinnegard2009, p. 123; Amar, Reference Amar1987, p. 1465). Against this background, however, the Supreme Court soon began to act as the primary embodied locus of sovereign authority in the federal state, and it enabled the state fictitiously to manufacture an illusion of singular normative power and uniformly constituent sovereign order, which could be internally projected to traverse and legislatively to overarch the inconclusively integrated and often latently secessionist states of the Union.Footnote ³⁸ The strong reliance on rights-based judicial authority after 1789 thus formed a dimension of the nascent republic, which enabled the state internally to envision for itself a consistently unified source of authority, to overcome the weak legitimacy resulting from its two-level, compound basis, and in fact internally to generate an image of sovereignty and constituent power which transcended and incorporated the factually fractured institutional basis of its authority. In this setting, dialectically, the judicialisation of constitutional power permitted a simultaneous splitting of the unit of sovereignty and a unitary relocation of this same unit as a normative focus, situated above the federal state as a whole and able to authorise legislation at different institutional junctures and at a high level of abstractive legitimacy.

On these grounds, in early post-revolutionary America the judiciary originally acted as a source of legitimacy in lieu of a unified and singularly sovereign constituent will, and it allowed the state to imagine itself as constructed by a single founding constituent authority, which could be invoked to accompany, justify and simplify distinct acts of legislation. In so doing, the judiciary enabled the republic to internalise a reference to an original authorising will without certainty that this will factually existed, or that this will could be identified as concretely manifest outside the political system. In the early American context, in short, the powerful position of the judiciary was able to bring internal unity and legitimacy to the state, it instilled within the state an image of its original authority which it was not able objectively to extract from any external source, and it marked an internal compensatory reaction within the state to the fragile foundations of its constituent legitimacy. In each respect, the judicial dimension of the constitution played a vital surrogate role in heightening the abstraction of political power in American society and in increasing the internal level of abstraction and autonomy at which the state's powers of legislation could be constructed and utilised.Footnote ³⁹

Judicial politics after 1945

In the period of post-1945 constitution writing, these internalistic and simplificatory functions of judicial constitutionalism were intensified in some societies, notably – again – in Italy and West Germany. In these settings, the capacity of judicial actors for augmenting the inner cohesion of political institutions, for projecting a counter-factually unified constituent power to support the state, and for raising the autonomy of the political system was once again dramatically re-articulated. At this time, in particular, new constitutions widely reinforced the principle established in the early American republic that constitutional-democratic order involved, not a direct inclusion of some external constituent power, but rather a dialectical projection and systemically internalised reconfiguration of constituent power. In fact, the process of constitution drafting after 1945 often hinged on the principle that the judicial dimension of constitutional order could be strategically utilised to curtail and manage the presence of immediate constituent power within the state. At this time, judicial institutions, usually acting as guardians of rights norms, were instituted in order specifically to procure legitimacy for legislation not sustained by potent external reserves of constituent authority.

The dramatic rise of judicial power after 1945 normally occurred against a distinctively charged sociological background, and its status in constructing constituent power had the most vital importance in stabilising autonomous functions of statehood. Notably, the constitutions of interwar Europe had struggled fatefully with, and ultimately been brought to crisis by, the problem of constituent power, and it was only through the dynamic of constitutional judicialisation after 1945 that this problem was resolved. In the immediate aftermath of 1918, most European states had obtained constitutions intended to absorb the pressures resulting from simultaneous processes of mass and material democratisation induced by World War I; typically, these states tried to achieve this objective by developing constitutions and promoting models of legitimacy founded in a very wide and external definition of constituent power. Strikingly, most post-1918 constitutions were usually designed in such a manner as to place the constituted power of the state in a constant close relation to the constituent power of the people, and they endeavoured to secure powerful reserves of legitimacy for state action by ensuring that constituent power was ceaselessly and immediately channelled through society and transmitted through the organs of state. In other words, these constitutions aimed to ensure that the will of the people, in both its political and material dimensions, was uninterruptedly invoked and represented in the state as a concrete foundation for all acts of law (Schmitt, Reference Schmitt1928, pp. 84, 209). For this reason, most European states after 1918 assumed constitutions with a strong corporate/organic bias.Footnote ⁴⁰ After 1918, corporate constitutionalism was widely employed as a political-constitutional design intended to solidify a relation of ceaseless material integrity between the state and its constituents. This brand of constitutionalism premised the legitimacy of political power on the capacity of the political system for internalising and fulfilling the immediate claims and demands expressed by citizens in different dimensions of their lives, and for intricately translating the pluralistic demands of society into the one inner cohesive will within the state. In consequence, it was widely reflected through the 1920s that states obtained and preserved their legitimacy as an ongoing total event of societal integration or by an all-encompassing everyday plebiscite, in which constituent power, in both its political and material dimensions, was incessantly activated through acts of concrete inclusion performed by actors in the state (Smend, Reference Smend1968 [1928], p. 182).

In most cases, ultimately, the commitment to endless corporate inclusion of the constituent will of society triggered extreme malfunction in interwar European state institutions. The attempt of states fully to incorporate the external will of the people frequently placed unbearable structural strain on the fragile new democratic polities of post-1918 Europe, and it meant that public institutions in many societies struggled to maintain their status as clearly public autonomous actors. In fact, the corporate constitutional experiment after 1918 often gave rise to a pattern of political order in which the expansive and integrative use of political power, to which states were obligated by their constitutions, was only sustained through the co-opting of private actors into the state periphery: that is, through the fatefully endemic reprivatization of public power. Many countries through the 1920s witnessed an egregious fragmentation of public order, and in many cases private monopoly of public office was widely simplified and commonplace, and functions of state were preserved and supported through society by means of a loosely dilated coalescence of public authority and private influence.Footnote ⁴¹ Ultimately, the corporate-democratic constitutionalism resulting from World War I gave way to a more authoritarian brand of corporate constitutionalism: a type of constitutionalism typically known as ‘fascism’. This system – at least in its own proclamations – shared with democratic corporate constitutionalism a commitment to mobilising constituent power as the endlessly active foundation for everyday acts of legislation. Fascism, too, premised its claim to legitimacy on a presumed identity between the state and the people: it purported to obtain legitimacy from the complete and cohesive internality of the constituent people to the state order (Gentile, Reference Gentile1929, p. 50). Beneath this veneer, however, fascist government, like earlier corporate systems, was marked by an extremely fluid intersection of public and private functions, and in many cases fulfilment of regulatory obligations assigned to state institutions depended on the uncontrolled assumption of public offices by private elites (Mellis, Reference Mellis1988, pp. 262–63). Typically, fascist regimes were forced to resort to high levels of internal privatism to maintain even basic levels of social control, and, in extreme cases, they perpetuated their functions by acting as variably equilibrated aggregates of private/public power: that is, as non-states (Costa Pinto, Reference Costa pinto and Costa Pinto2011, pp. 206–207). Both the democratic constitutions established after 1918 and the anti-democratic constitutions established in some countries after 1922, therefore, typically resulted from an over-intensified construction of constituent power. States with corporate constitutions routinely purported to obtain legitimacy by transposing the external will of all society into the inner agency of the state. These states, however, were unable to maintain structural integrity in face of these legitimatory expectations, and they often renounced their distinctively public status in their attempts to mediate the full plurality of demands and conflicts inhering in the societal will which they claimed to represent (see Schmitt, Reference Schmitt1923, p. 22).

It is against this sociofunctional background of state crisis that we can analyse the emergence of strongly judicialised constitutions in some societies after 1945, especially Italy and West Germany. Indeed, it was often as a reaction against the political pathologies of extensive and immediate constituent inclusion induced by World War I that the constitutions of the period after 1945 were constructed. As examined, in both Italy and West Germany judicial actors generally played a crucial role in the transition from fascism to democracy, and they contributed in far-reaching manner to consolidating the historically uneasy autonomy of these states. In both settings, however, the greatest judicial contribution to state autonomy resulted from the fact that Constitutional Courts provided a solution to the perennially unsettling problem of constituent power.

At a simple level, Constitutional Courts performed this function in the wake of 1945 because they concentrated an image of the popular constituent will into a series of static norms preserved within the state. That is, in insisting that laws were only authorised if consonant with the rights norms inscribed in the constitution, Constitutional Courts projected an image of the state as a whole and of each single act of state law as legitimised by the original presence of a constituent body of rights holders: courts made it possible for the state to conceive its sovereign origin as distilled in a set of abstracted norms (condensed into rights in the constitution), and they enabled the state internally to articulate legitimacy for all acts of legislation by referring to prior constitutional rights as constant expressions of constituent power.Footnote ⁴² At a rather more submerged level, however, the construction of constituent power as expressed through rights and protected by courts relieved the state of the endless and often destabilising need to engender support from a constituent will situated in a societal location external to itself, and it allowed states, referring to rights, to project a simplified conception of constituent authority to accompany and support their legislation. On the one hand, these functions of Constitutional Courts brought the benefit that the state could invariably authorise its power as resulting from a uniform, internal and normatively consistent source. Yet, on the other hand, these functions meant that the state could ensure that this will was produced and controlled within the political system itself, that the state was able internalistically to construct the foundations of its legitimacy, and, in consequence, that the state was not required constantly to regenerate authority to support single acts of legislation.

On several grounds, the presence of strong Constitutional Courts after 1945 did much to stabilise state power. Notably, the fact that courts constructed a static image of constituent power simplified the production and legitimisation of laws, it strengthened the state's control over its functions, and it allowed the state to predetermine which societal exchanges and demands needed to gain access to the political system. Further, courts enabled states to bring cohesion to their constituted form, and, in proposing a highly formalised, internalistic source of constituent power, they hardened the state periphery against problems of over-inclusion and reprivatisation of public power that had afflicted states in the interwar era. Above all, the translation of constituent power into a set of judicial norms insulated states against volatile or potentially de-legitimating controversy over the constitutive direction of state and society, and it enabled states, using their own inner facilities, to presume internal authority to make far-reaching decisions about the normative structure of society as a whole.Footnote ⁴³ In each respect, judicial constitutionalism evolved after 1945 as a model of political construction bringing potent benefits to the political system in societies in which traditional levels of state integrity and autonomy were very low, where the ability of the state to mobilise power across society was weak, and where the inability of the state to preconstruct constituent power had historically led to forfeiture of state autonomy. The judicial construction of constituent power proved a vital constitutional remedy to these afflictions.

Transitions after 1989

The functional importance of judicialised constitutional forms in enabling states internally to manage their reference to constituent power and so to securitise their capacities for autonomous legislation increased still further in later cases of post-authoritarian transition. For example, in the cases, examined above, of Poland and Hungary in the 1980s, the role of judicial actors extended significantly beyond the fact that courts simply alleviated transitional states of responsibility for the immediate integration of constituent power. In Poland, in particular, the constituted power of the Constitutional Court actually predated the establishment of a real constituent power to authorise binding constitutional documents for the newly formed democratic polity, and the court pre-defined the normative parameters within which the eventual content and structure of the constitution were projected and ultimately established. In this setting, judicial power effectively assumed and stood in for objectively existing constituent power. In so doing, it facilitated a process of democratic transition, in which the factual need to mobilise constituent power, with its attendant risks of personalistic fragmentation, extreme polarisation and systemic overload through unmanageable controversy, was evaded. In eliding constituent and constituted power in this way, the judiciary pre-structured and normatively insulated the process of constitutional foundation, and it acted as a central underlying normative support for the secure use of power in the course of political transition.

Perhaps the most important case of this transitional elision of constituent and constituted power in Constitutional Courts occurred in the perestroika-era Soviet Union under Gorbachev. Prior to 1989, the political system of the Soviet Union was marked by many traditional features of one-party states: that is, specifically, by weak public control of political office, personalistic monopoly of political authority, high levels of clientelism, reduced policy-making options, and, above all, inertial personal and systemic obstruction to new statutory programmes. As a result, the late-Soviet regime was a weak and extremely unwieldy state, marked by low levels of practical autonomy,Footnote ⁴⁴ and only able to distribute power across society by coalescing with personalistic structures and networks (Willerton, Reference Willerton1992, p. 227). Against this background, it is notable that the reformist redirection of the state under Gorbachev coincided with a rise in the status, quality and independence of judicial power. Indeed, the reform of the political system culminating in perestroika was first stimulated by an initial reconstruction of the judicial apparatus. At the very beginning of the reforms, Gorbachev specifically proclaimed perestroika a revolution committed to establishing a state founded in the rule of law, in which the judiciary, applying rights norms to regulate legislation, was to play a leading role (Thorson, Reference Thorson2012, p. 28).Footnote ⁴⁵

In this setting, the typical functions of judicial norms in raising the abstraction and autonomy of state power again became clear. In particular, under Gorbachev, judicial actors began to invoke rights to articulate an internal overarching normative framework within the political system, through which the basic lineaments of the state assumed cohesive form against their previous embeddedness in the personalistic oligarchy of the Communist Party, and actors within the state were able to invoke clear and abstract authority to introduce policies in independence of personal or vested prerogatives. In fact, the ability of judicial actors to generate defining norms for the political system gradually established a powerful basis of autonomy for the state, and the fact that the judiciary declared normative legal consistency as the objective of reform permitted the state apparatus internally to concentrate its legitimacy, and so to legislate at a significantly elevated level of independence. In the Soviet Union of the late 1980s, therefore, the judiciary acted as the first element in an emerging constitution, and it played a vital role in heightening the autonomy of the political system in its entirety.

In the wake of 1989, subsequently, judicial bodies continued to assume a leading position in the process of proto-democratic constitutional transition in the Soviet Union. Between 1989 and 1991, a Constitutional Supervision Committee was established, which until 1991 assumed functions not far removed from those of a Constitutional Court. In 1991, the Committee was replaced by a formally appointed Constitutional Court. In the first instance, from 1989 to 1991, the Committee projected a rights-based normative construction of the state apparatus, which served at once to prescribe guidelines for subsequent reform, to render state action accountable to formal rights norms, and to condense internal normative justifications for state action. In particular, the Committee applied international legal expectations (especially in respect of rights) to authenticate new legislation, and it constructed a de facto reserve of quasi-constituent normative authority in the state (Hausmaninger, Reference Hausmaninger1990, p. 306; Vereshchetin, Reference Vereshchetin1996, p. 36). The first appointed Constitutional Court under Zorkin played a notably active role in assimilating international norms in order concretely to constitutionalise subjective rights (Trochev, Reference Trochev2006, p. 166). Throughout these processes, the reformist position of the judiciary enabled the state in part to define and legitimise itself as a simple cohesive institution, effectively to consolidate its power in administratively secure form, and to sever offices of state from singular actors (i.e. actors privileged by party status and personal affiliation) conventionally utilising its power and resources. Most essentially, however, the judiciary was able to use rights norms to guide the transformative reorientation of the state, internally to project normative principles for the legitimisation of future legislation, and progressively to preconstruct a new comprehensive constitutional order. This meant that the basic elements of a reformed democratic state could be instituted from within the political system, and the state divested itself of the prior need to secure legitimacy from an externally assembled constituent power. Indeed, this meant that judicial actors within the state could project a normative environment for constitutional reform in which the need for factual or external constituent authority was curtailed, and reform could be conducted in internally controlled and autonomously directed fashion. As in other cases, judicial constitution making allowed the state systemically to insulate itself and its acts of legislation, and to elevate the autonomy of its functions during a highly contested and uncertain process of transition, in which immediate and external constituent power could not be mobilised. None of this, of course, implies that the judicial reforms pioneered in transitional Russia were an unequivocal success, or that they resulted in a comprehensive rights culture. It is well documented both that the transitional Russian state, especially under Yeltsin, eventually entered a condition of near collapse and endemic reprivatisation (see, for example, Garcelon, Reference Garcelon2005, p. 7), and that the first experiment with rights-based judicial review was ultimately superseded by a more authoritarian model of judicial control under Putin (Thorson, Reference Thorson2004, p. 189; Baudoin, Reference Baudoin2006, p. 697; Solomon, Reference Solomon2002, p. 123).Footnote ⁴⁶ Despite this, however, the internal projection of constituent power by judicial actors authorised by rights norms was a precondition for the original revolutionary capacity of the political system of the Soviet Union to separate itself from its dense interpenetration with private office holders and party nomenklatura and to construct itself as an autonomous body of institutions.

Parallels to the quasi-constituent status of Constitutional Courts in post-Communist Eastern Europe can be found in processes of constitution drafting in other recent post-authoritarian contexts – notably, in some countries in South America and in transitional South Africa. In the latter setting, most notably, the Constitutional Court was able to act as a very powerful repository of surrogate constituent power in the transitional state, and potent judicial actors played a vital role in acting internally to stabilise the newly founded political system in the face of extreme social polarisation. Like the courts in transitional Poland and Hungary, in South Africa the court preconstructed and defined the normative basis of government in the period between the interim constitution of 1993/1994 (created by a co-opted technical committee) and the final constitution of 1996/1997 (approved by an elected Constitutional Assembly) (Klug, Reference Klug1996, pp. 49–51). During this uncertain legal transition, the court, applying a Bill of Rights based in international law, acted as custodian of a prior normative foundation for the practical exercise of government.Footnote ⁴⁷ This meant that the elected parliament could exercise circumscribed constituent powers (Dugard, Reference Dugard1997, p. 78). But it also meant that divergent societal factions within the constituent body did not intrude too destructively on constitutional design, and the court generally mitigated external factors challenging the process of transition (Klug, Reference Klug2000, p. 1). The work of the court in projecting normative parameters for constitution writing thus had the outcome that a final constitution could be produced through a two-stage process of constitutional foundation, in which the fragile dynamics of constituent authority remained relatively immune to wider pressures arising from expansive societal polarisation (Klug, Reference Klug2000, p. 115). In fact, the ultimate form of the constitution remained subject to veto by the Constitutional Court, and the final draft constitution was initially rejected by the court for amendment prior to ratification (Sachs, Reference Sachs1996, p. 1257). The classical relation between constituent and constituted power was, to some degree, inverted in the South African transition. To employ a neologism, the recursively auto-constituent constituted power of the court shadowed, presided over, and generated systemically internalistic reserves of normatively legitimacy for the entire process of reorientation.

In each of these examples, judicial actors exercised some functions accorded in classical constitutional theory to agents vested with pouvoir constituant. In each example, moreover, the fact that judiciaries accounted for their validity as derived from rights enabled judicial actors normatively to authorise their constitution-founding practices and to stabilise wider processes of transition and reorientation. In each of these cases, the fact that governmental functions were initially entrusted to, and legitimised by, highly abstracted judiciaries meant that the normative origin of power's legitimacy was translated into a form that could be stored and projected from inside the political system, and it offered an internally manufactured construction of constituent power to underscore the legislative acts of the polity. The fact that these transitions were presided over by courts applying rights meant that the political system could imagine itself as enacting in each piece of legislation the will of an original constituent power, which it defined as a body of rights holders. Yet it also meant that the political system was relieved of the need factually to mobilise or integrate any real external constituent will. The result of this dialectic of constituent power was a rapid rise in the level of autonomy at which the state could utilise political power.

On the basis of these examples, we can see that the periods in which judicial constitutionalism has assumed greatest prominence have strong similarities, and, across diverse historical conjunctures, judicial constitutionalism brings analogous benefits to the political system. The judicial construction of the constitution forms a pattern of constitution making that generates particular benefits where classical external reserves of legitimacy are weak, and judicial constitutions perform core internally adaptive functions in such settings. Across the spectrum of these cases, judicial constitutionalism commonly plays a vital role in societal conjunctures marked by diffuse, weak or deeply fragmented sources of constituent authority. Judicialisation of political power performs invaluable functions for political systems that are constructed in environments shaped by deeply insubstantial volitional foundations, and in which, accordingly, state autonomy is low. The rights jurisprudence typical of judicial constitutionalism brings the specific benefit that it permits the political system internalistically to configure a legitimating image of constituent power in circumstances where such power cannot easily be presupposed as the basis for legislation. In situations of high precariousness, this significantly extends and intensifies the legitimacy and the autonomy of the political system. As discussed above, the rise of judicial power in constitution-making processes typically limits the exposure of the political system to unmanageable external pressures, it makes it possible for the political system to abstract power in a form that can easily be used, authorised and reproduced across uncertain social environments, and it generates an internally unifying construction of the state and its legitimacy under conditions in which its originating authority is otherwise insecure. Above all, judicial constitutionalism condenses a (self-constituted) image of constituent power around rights, and this permits the political system to legislate at a high level of internally managed, and often counter-factually legitimated, consistency.