Limiting Government: An Introduction to Constitutionalism 9789633863879

Table of contents :
TABLE OF CONTENTS
Foreword
Introduction
Chapter 1. The Constitution as Fear and Acceptance
1.1. Fear's Creatures
1.2.Types of Fear
1. 3. Ulysses Binds Himself to the Mast
1.4. Definitional Dangers
1.5. Constituent Power
1.6. What Precedes a Constitution? Order and Acceptance
1.7. The Content of a Constitution: Neutrality or Common Objectives?
1.8. The Legal Nature of a Constitution
Chapter 2. The Taming of Democracy
2 .1. Diluted People's Sovereignty and Weak Democracy
2.2. Majority Rule
2.3. The Constitutional Limits to Democracy
2.4. Referendum and Destabilization
Chapter 3. Dangerous Liaisons: Checks and Balances and the Separation of Powers
3 .1. The Balancing Act
3.2. Separation and Dependence in Creation and Termination
3.3. Separate Operations and Joint Decisions
3.4. Additional Counterbalancing Factors
3.5. When Does the Counterweight Become Excessive Weight?
3.6. Separation and Freedom
Chapter 4. Parliamentarism and the Legislative Branch
4.1. The Transformations of Parliament
4.2. The Structure and Operation of Parliament
4.3. Unicameral versus Bicameral Systems
4.4. The Legislative Process
Chapter 5. The Executive Power
5.1. The Discrete Charm of Efficiency
5.2. Who or What is the Head of the Executive?
5.3. The Prerogatives of the Executive Power
5 .4. The Myth of Responsibility
5.5. The Internal Division of the Executive Power
Chapter 6. The Rule-of-Law State and lts Executors
6.1. Rule by Law and the Rule-of-Law State
6.2. The Administration of Justice
Chapter 7. Constitutional Adjudication
7 .1. Who Guards the Guardians?
Chapter 8. Fundamental Rights
8.1. Freedom and Human Rights
8.2. Defining Fundamental Rights
8.3. What Do Fundamental Rights Imply?
8.4. When Fundamental Rights May Be Restricted: Reconciling the State with Freedom in Constitutionalism
8.5. What Purpose Do Fundamental Rights Serve If Abused?
8.6. How Precise Should the Definition Be?

Citation preview

LIMITING GOVERNMENT

LIMITING GOVERNMENT An lntroduction to Constitutionalism

András Sajó

Foreword by

Stephen I-Iolmes

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„ CEU PRESS 4 ••

Central European University Press

First published in Hungarian as Az önkorlátozó hatalom in 1995 by Közgazdasági és Jogi Könyvkiadó,MTA Állam- és Jogtudományi Intézet,Budapest English edition 1999 by Central European University Press Október 6. utca 12 H-1051 Budapest Hungary 400 West 59th Street NewYork,NY10019 USA

© 1999 by András Sajó English translation © 1999 by Central European University Press Distributed by Plyrnbridge Distributors Ltd.,Estover Road,Plymouth PL6 7PZ,United Kingdom All rights reserved. No part of this publication rnay be reproduced,stored in a retrieval system,or transmitted,in any form or by any means,without the permission of the Publisher.

ISBN 963-9116-25-4 Cloth ISBN 963-9116-24-6 Paperback ISBN 978-963-386-387-9 eBook

Lihrary ofCongress Cataloging in Publication Data A CIP catalog record for this book is available upon request

Printed in Hungary by Akaprint

TABLE OF CONTENTS

Foreword by Stephen Holmes

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Introduction xiii Chapter 1 The Constitution as Fear and Acceptance 1 1.1. Fear's Creatures 1 1.2.Types ofFear 5 1.2.1. Fear of corporatism 5 1.2.2. Hungarian fears 6 1.2.3. Identity 6 1.3. Ulysses Binds Himself to the Mast 7 1.4. Definitional Dangers 9 1.4.1.The concept of constitutionalism 9 1.4.2.The concept of the constitution 14 1.5. Constituent Power 17 1.6. What Precedes a Constitution? Order and Acceptance 23 1.6.1. Demands for security 23 1.6.2.The homogeneity of society 24 1.6.3. Citizenship: acceptance and inclusion 25 1.6.4.The guarantee of coexistence 27 1.7.The Content of a Constitution: Neutrality or Common Objectives? 29 1.8. The Legal Nature of a Constitution 39 1.8.1.The supremacy of the constitution: protecting the constitution by making amendment difficult 39 1.8.2. Amending the constitution 39 1.8.3. Binding nature and direct applicability 43 Chapte1· 2 The Taming of Democracy 49 2 .1. Diluted People's Sovereignty and Weak Democracy 49 2.2. Majority Rule 55 2.3.The Constitutional Limits to Democracy 57 2.4. Referendum and Destabilization 64

vi Chapter 3 Dangerous Liaisons: Checks and Balances and the Separation of Powers 69 3.1.The Balancing Act 69

3.2. Separation and Dependence in Creation andTermination 77 3.2.1. Creation 77 3.2.2. Persona! dependencies 87 3.3. Separate Operations andJoint Decisions 89 3.4. Additional Counterbalancing Factors 94 3.4.1.The role ofthe judiciary in the balancing ofpowers 94 3.4.2.The federal (vertical or lateral) separation ofpowers 9 S 3.5. \Vhen Does the Counterweight Become Excessive Weight? 97 3.6. Separation and Freedom 99

Chapter 4 Parliamentarism and the Legislative Branch 103 4.1.TheTransformations ofParliament 103

4.1.1.The evolution ofparliamentarism and its transformation into a representative system 103 4.1.2.The cooling off ofpopular sovereignty in parliamentary systems: the free mandate 107 4.1.3. Parliament: A club for the finest gentlemen 112 4.1.4. A critique ofclassical parliamentarism. Party rule and corporatist assemblies 116 4.2.The Structure and Operation ofParliament 121 4.2.1. Parliament as an institution 121 4.2.2.The conditions offree debate and decisionmaking 129 4.2.3. Parliament's self-determination 134 4.2.4. Collective participants 140 4.3. Unicameral versus Bicameral Systems 149 4.4.The Legislative Process 155 4.4.1. Primary legislation 155 4.4.2. Delegation ofthe legislative function 161

Chapter 5 The Executive Power 173

5.1.The Discrete Charm ofEfficiency 173 5.2. \Vho or \\Ihat is the Head ofthe Executive? 175 5.2.1. Kings and presidents 175 5.2.2. Governments and prime ministers 180 5.3.The Prerogatives ofthe Executive Power 183 5.3 .1.The prerogatives in opposition to parliament 183 5 .3 .2. Protecting the government: the vote of no-confidence made difficult 185 5.3.3.The executive submits bilis and "fills in the gaps" ofmissing legislation 189 5.3.4.The budget 190 5 .4.The Myth ofResponsibility 194 5.5.The Internal Divísion ofthe Executive Power 198

vii Chapter 6

The Rule-of-Law State and lts Executors 205

Chapter 7

Constitutional Adjudication 225

6.1. Rule by Law and the Rule-of-Law State 205 6.2. The Administration of]ustice 218

7 .1. Who Guards the Guardians? 225 7.1.1. Madison loses a case in court and gains authority 225 7.1.2. The victory of judicial review 232 7.1.3. Interpreting and rewriting the constitution 238

Chapter 8 Fundamental Rights 245 8.1. Freedom and Human Rights 245 8.2. Defining Fundamental Rights 255 8.2.1. Should the legislature be authorized to define fundamental rights? 255 8.2 .2. Which fundamental rights should be protected by the constitution? 259 8.3. What Do Fundamental Rights Imply? 271 8.3.1. State power bound 271 8.3.2. The effect of fundamental rights on nongovernmental relationships 272 8.4. When Fundamental Rights May Be Restricted: Reconciling the State with Freedom in Constitutionalism 277 8.4.1. Limiting fundamental rights 277 8.4.2. The limits to limiting rights 280 8.5. What Purpose Do Fundamental Rights Serve lf Abused? 283 8.6. How Precise Should the Definition Be? 286

FOREWORD by Stephen Holmes

Architects are famously reluctant to revisit the houses they once de­ signed for fear of discovering that living and breathing inhabitants have come to use the ingeniously arranged rooms and corridors in ways that were neither intended nor foreseen. Venerable constitution makers would suffer a similar indignity if they were permitted to return from the grave and inspect their handiwork in action. However cunningly they contrive a blueprint of rules and roles, institutions and procedures, their plan works differently in practice than was imagined in theory. For they cannot control, through constitutional design, all of the mighty factors that necessarily impinge upon the use and abuse of political power. The evolution of the party system is just one example among many of the extra-constitutional factors that profoundly refashion the "real constitution" of a country in ways that the most prescient framers could neither have intended nor expected. In this witty, erudite and challenging book, András Sajó-Central and Eastern Europe's foremost constitutional theorist-explores the history and theory of constitutionalism from the standpoint of a realist and a skeptic. To cure us of our constitutional parochialism, he reminds us that civil liberties are, roughly speaking, just as secure in Great Britain as in the United States, making us doubt (for instance) that freedom is in­ extricably dependent upon the separation of powers or judicial review. Rooted in a sense of historical context, Sajó's skepticism has nothing to do with cynicism, however. Admittedly, a constitution is merely a piece

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of paper-but so is a cashier's check for ten million dollars. Pieces of pa­ per do matter-do make grown men jump-to some extent and under specified conditions. The questions facing the comparative constitu­ tionalist are: when, how and why? Just as generals are doomed to rewage the last war, according to Sajó, constitution makers inevitably focus on solving the gravest problems of the immediately preceding regime. A constitution written after a period of executive tyranny will have a different flavor, will take a different ap­ proach to the allocation of powers, than a constitution drafted after a period of legislative volatility and paralysis. This historical insight leads Sajó to what we may call his "constitutionalism of fear." Constitutions are giant restraining orders motivated by a passion for avoidance. They are inevitably propelled by the desire to escape specific dangerous and unpleasant political outcomes. But what outcomes do different drafters in different historical contexts fear most? Surveying two centuries of constitutional theory and practice, Sajó makes clear that any semi-stable constitution will be multifunctional, that is to say, will strive to resolve a cluster of problems-or avoid a vari­ ety of negative outcomes-simultaneously. The "last war" which General Sajó himself, having been born a:rid educated in the Communist Bloc, is most concerned to fight is the war against tyranny, naturally enough. But he also makes clear that a sustainable liberal constitution must help guard not only against tyranny, but also against anarchy, paralysis, cor­ ruption an