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At a recent research seminar organized by the MCC Center for Constitutional Politics, Professor Martin Loughlin from the London School of Economics presented the arguments of his newest book, Against Constitutionalism. Following his lecture, a stimulating discussion ensued among colleagues, researchers, and students, covering topics such as constitutionalism, the rule of law, the role of courts and judges, as well as democratic backsliding within the European Union.
Loughlin's main arguments, as outlined in his book, challenged the prevailing notion of constitutionalism and its relationship to democratic principles and legitimacy. He differentiated between constitutionalism and constitutional democracy, emphasizing that modern discourse had increasingly distanced itself from democratic ideals, evolving into a global power-legitimizing ideology.
Central to Loughlin's critique was the view that constitutionalism promised a utopian future society, with the constitution serving as a bridge between present reality and this idealized future. He argued that constitutional texts had become not only limits to state power and guarantors of civil liberties but also embodiments of collective political identity and objects of civil religious worship.
Moreover, Loughlin contended that the principle of democracy imposed structural limits on the extent to which constitutionalism could be subordinated. He emphasized the importance of democratic processes in determining fundamental values, with constant discourse and political debate being essential components of democracy.
Loughlin also examined the impact of modern individualization on constitutionalism, highlighting the erosion of hierarchies, the blurring of public and private spheres, and the growing dominance of global organizations. He argued that this process had shifted the focus of constitutional interpretation from institutional limits to individual rights, with judicial reasoning supplanting collective political decision-making.
He warned against the unchecked expansion of constitutionalism, which he believed undermined popular control and fostered a disconnect between governance and the people – also in the context of the European Union.
Loughlin also addressed the issue of populism, suggesting that it may be a symptom of the global project of constitutionalism. He argued that current treatments for populism, that aim to strengthen core institutions of constitutionalism (especially courts) over democracy, were doomed to failure, as they perpetuated the very dynamics fueling populist movements.