Constitutionalism did not fall out of an intellectual vacuum. The fingerprints of ‘classical’ liberalism are necessarily all over it, a fact not seriously disputed by constitutionalism’s fiercest critics from the left and the right.
However, other than during a brief period in the United States (one of the birthplaces of constitutionalism), the courts have resisted acknowledging this fact. The liberal basis of constitutionalism should be reasserted.
To understand why, one has to understand what the law and constitutionalism are. This is a big question, but to simplify:
The law is a social institution that regulates the conduct of legal subjects by delimiting their spheres of free action. The law says, ‘your ability to do as you please ends here, because this is where another’s interests are present’. If we could visibly ‘see’ law, it would resemble auras that surround each individual and each type of behaviour. Some actions mean that legal subjects step ‘out’ of this aura and therefore fall afoul of the law.
Constitutionalism is the notion that the law, as it has been explained, also applies to the sovereign. Prior to constitutionalism, the sovereign – the state, the government, the political authority – was not considered bound by law. Indeed, the political authority was the source of law, and necessarily above the law. Constitutionalism places the political authority within the application of the law. Hence the idea that the conduct of the political authority must be regulated by delimiting its sphere of action – as is true for any legal subject, while accepting that some special provisions apply for the political authority. Constitutionalism, in other words, is the idea that the scope and power of government is and should be limited.
The actual text of legislation and constitutions is significant. But these instruments cannot be properly interpreted or construed without taking into account the underlying nature of law and constitutionalism. Reading a constitution without understanding that its very raison d’être is to limit government can lead to perverse outcomes, where for example a constitutional right to equality is interpreted to mean government may regiment society along egalitarian lines.
Liberalism and constitutionalism
It is clear, then, that the very essence of law and constitutionalism relates very closely to classical liberalism, which in its basic formulation is an embrace of the logic and coherence of law. The law obviously predates liberalism, but liberalism can be regarded as an outgrowth of law. (That is to say, had no such thing as ‘law’ existed it is unlikely that liberalism would ever have come about. John Locke and all serious liberal thinkers since have used law as the foundation of their thought.)
Constitutionalism, in turn, is a product of liberalism. If liberalism could be defined as a historical event, it would be that liberalism was the moment it was realised that the law should apply to political authorities just as it applies to legal subjects.
This central insight of constitutionalism has been almost universally adopted and embraced, and because of this widespread adoption has lost its liberal association. Many critics can today claim that liberalism has never really influenced world events beneficially because the liberal essence of constitutionalism has been forgotten.
But constitutionalism is a classical liberal phenomenon. If one removes classical liberal thinking from history, then the separation of powers, an independent judiciary, and the notion of a higher-status constitution against which government-produced legislation and conduct is tested, all disappear. Constitutionalism was forged in the fires of both active and intellectual resistance to political absolutism. It arises from the realisation that law, which had hitherto regulated the conduct of ordinary legal subjects, must also regulate the conduct of government.
To be clear (especially for the benefit of those ready to argue that I have simply and conveniently read my own ideology into the law): liberalism is an ideology. I am not, as liberals are often accused of doing, saying that liberalism or the state is ‘neutral’ or ‘objective.’ There is nothing ‘objective’ about any of this: the essence of law and constitutionalism comes from centuries of experience and normative thought.
But liberalism is unlike other ideologies. It is what might be called a ‘meta-ideology’, in that its defining feature is that it seeks to allow other ideologies to operate and exist within its framework with minimal interference, if any. This is to say liberalism does not tell us what the good life looks like – it is not a worldview – but simply tells us that each person or community must define the good life for themselves, according to their worldview and not the worldview of uninvited others. To the observant eye, this is very similar to the nature of law: it does not tell us what to value and believe, simply how to do so.
Classical liberalism is therefore necessarily woven into the fabric of the South African Constitution and, as a result, the constitution of the courts. At the overt level, however, the courts have become dedicated to a legal approach known as ‘transformative constitutionalism’. Transformative constitutionalism, stripped to its bare essentials, is the notion that constitutional law must be used to bring about complete socio-economic change in society with the objective of reducing or eliminating socio-economic inequalities and injustice.
Transformationists claim to find the mandate for this approach in the written text of the Constitution, but anyone who has a basic comprehension of English, and who is willing to read past the Preamble (which is where transformationists spend most of their time), would know that with some exceptions, the South African Constitution is a commendable, garden-variety, classical liberal constitution: it defines and limits the scope and power of government while protecting the sphere of free action that every individual South African and community is entitled to.
More conscious judges
Judges existed before constitutionalism and classical liberalism, but these ‘judges’ were – to oversimplify – what we would today call ‘arbitrators’. With some exceptions – Roman law judges come to mind – judges merely acted as ‘impartial’ adjudicators of disputes. It was only truly with the coming of constitutionalism that the judicial profession took on its modern form.
To properly fulfil their roles, judges must be steeped in the thinking around constitutionalism, natural rights, and liberal philosophy. In this sense I am not tooting liberalism’s horn, because judges must also necessarily be conservative in attitude, and not seek to use their office to bring about social change they deem appropriate. Judges must also take the postmodern insight into the socially constructed nature of meaning (and hence the meaning of legal texts) into account.
I am not saying judges must be dyed-in-the-wool liberals – I am saying judges must appreciate the liberal foundations of their constitutional profession. If they fail to do so, their exercise of the judicial power will tend to lack coherence and result in absurdities.
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