The Cosmopolitan Constitution.

• Author: Patterson, Dennis
• Position: Book review

THE COSMOPOLITAN CONSTITUTION. By Alexander Somek. (1) Oxford: Oxford University Press, 2014. Pp. xii + 291. $98.50 (cloth).

Behind every silver lining there is a cloud.--Glenn Gould

INTRODUCTION

Alexander Somek has written two brilliant books about E.U. law. In Individualism, (3) he demonstrated how the E.U. stifles Europeans through intrusive regulation. The book is a sustained attack on the authority of bureaucrats to intervene in the lives of citizens. Through a trenchant analysis of E.U. smoking regulations, Somek demonstrates the stultifying effects of insufferable regulation by the State. The analysis is so compelling, one almost feels like lighting up a cigarette in one's office just to push back against the bureaucracy.

To similar effect, in Engineering Equality, (4) Somek focuses his attention on E.U. anti-discrimination law. He has little positive to say about it. Not that he is not a good liberal: he supports antidiscrimination. His problem is not with the goal of antidiscrimination but with the fact that progressives are undermining their own normative aspirations. Through "deconstruction" of the distinction between "direct" and "indirect" discrimination, Somek draws the conclusion that E.U. anti-discrimination law is "normatively twisted." (5) E.U. anti-discrimination law inverts the hierarchy between direct and indirect discrimination, thereby rendering analysis and application of the law a "hotbed of moral controversy." (6) As a result, the field devolves into pseudonormativity, the goal of which is the creation of "a world inhabited by better people--and not ... a world where power differentials in the relation of capital and labour have been readjusted such as to approach evermore closely a sustainable equilibrium." (7)

Now to his latest book, The Cosmopolitan Constitution. Regarding constitutionalism, Somek's thesis is that modern constitutionalism has evolved through three distinct epochs. In the first epoch, best exemplified by the American experience, constitutionalism is about the constraint of public power. Grounded in the sovereignty of a people, the constitution is the expression of their liberty. It is the "constituent power" (8) of a free people that gives the constitution its legitimacy.

After the Second World War, a different form of the modern constitution emerged. Now constitutional legitimacy flowed not from the people but from a commitment to the protection of human rights. The validity of a constitution thus became a function of the degree to which it passed muster in evaluation by a system of peer review among nations.

This second iteration of constitutionalism set the stage for the emergence of the third epoch of constitutionalism, what Somek dubs "The Cosmopolitan Constitution" ("TCC"). There are two faces to TCC. The first is political. In addition to the protection of human rights, TCC combats discrimination on the basis of nationality. Further, TCC develops modalities for managing state interactions with authorities outside the state. Secondly, and more darkly, TCC cedes political authority to various transnational administrative entities. (9) What has developed, Somek contends, is a new form of constitutional authority: authority for an "administered world" (p. 242).

The story of an evolving constitutional order is the political/legal aspect of Somek's narrative but it is not the most important part of his argument. While the ostensible subject of TCC is constitutionalism, Somek's real target is global capitalism. (10) Somek believes the global polity is being systematically subjugated to the will of a global financial elite. From the rise of transnational governance to the withering effects of the Troika, democratic participation is inexorably being crushed by the interests of global capital. Today, "peoples are dominated by core institutions of modern capitalism" (p. 238). Finance (i.e., the interests of global capital) has displaced "the people." The only way out, Somek avers, is "political action" (p. 283). (11)

There is much one might focus on in a review of this rich and engaging book. Everything from the details of each constitutional epoch, the rise of transnational regulation, the intricacies of E.U. law, to the general topic of global constitutionalism deserve attention. Somek's writing is provocative, stylistically engaging, and well-informed. After providing an overview of the argument of the book, I will concentrate on Somek's most wide-ranging claim, mentioned above: viz., the current epoch of modern constitutionalism is firmly in the grip of global capitalism.

NATION-STATE AND CONSTITUTION

When one hears "The Cosmopolitan Constitution," the temptation might be to think the phrase is similar to, if not synonymous with, "Global Constitutionalism." Nothing could be further from the truth. Global Constitutionalism--the idea of one law for the globe--is a seminar room fantasy. (12) The nation-state, which has been the centerpiece of the global order of states since the Peace of Westphalia, remains the focus of any effort to understand world order (13) and, more importantly, the evolution of constitutionalism at the global level. The nation-state is central to Somek's brief for TCC.

As mentioned, Modern Constitutionalism has gone through three iterations. The first iteration of constitutionalism--Somek calls it "Constitutionalism 1.0"--is, as James Madison put it, "a charter[f] of power[s] granted by liberty." (14) Liberty and power are of the essence of Constitutionalism 1.0. From the American perspective, which serves as the exemplar, sovereignty lies with the people. The constitution establishes limited, separated powers for government. In addition, judicial review subjects the executive and legislative branches of government to review of their respective exercises of power. When the executive or Congress chooses an end for the exercise of its power, "the relationship between the means chosen and the end pursued" (p. 7) receives judicial scrutiny.

Constitutionalism 1.0 is not obsolete, although the focus shifts in the move from Constitutionalism 1.0 to 2.0. (15) The shift is in the focus from power to rights. (16) Somek cites Germany's post-World War II constitutional experience as the exemplar of the evolution to Constitutionalism 2.0. In the 2.0 world, a constitution springs not from a sovereign people but from "an act of reasonable recognition concerning the supreme value and authority of human dignity and human rights" (p. 9). Constitutionalism 1.0 was about voluntary realization of the values of a people. 2.0 abandons voluntarism and embraces "the universal values of freedom, equality, and solidarity" (p. 9). The shift is from liberty to dignity.

Somek provides a wealth of detail in his incisive descriptions of each constitutional epoch. It is in these details that the reader sees a foreshadowing of the dark side of Constitutionalism 3.0. Constitutionalism 1.0 was a project of emancipation, best represented by the French Revolution and the American colonialists' revolt against Britain. The raison d'etre of this form of constitutionalism is overcoming the externalities of status and privilege.

Somek characterizes Constitutionalism 1.0 as "bourgeois" (p. 11). The downside of Constitutionalism 1.0 is that it locates its subjects "within a market society largely immune from state interference" (p. 11). (17) Somek does not like this setup. In one of several gifted, bespoke examples that appear throughout the book, he says this about life in a market society:

Decentralized human cooperation in markets, however, works by virtue of unintended man-made necessity. If all surrounding barbershops offer complementary coffee, my shop has to offer it too. This necessity is "external" in the sense that the opportunities to which it gives rise do not reflect what one wants by virtue of who or what one takes oneself to be. There is no way of living off exploring the contraction of God at the moment of creation if all that people want is lean food and inexpensive mobile phone plans. Likewise, if others work for less, one has the choice of working for less oneself. If competitors innovate, one has the choice to innovate first. A competitive life is spent engaging in pre-emptive strikes. If one does not choose what one must choose, one will go under. The choice is the choice of necessity, objectively and subjectively considered. It is the choice of and by necessity (p. 11). Freedom in this form of social order is "formal"; so much so that "it is even indifferent to its own choosing" (p. 11).

Constitutionalism 2.0 takes a different approach to human freedom. Here negative liberty is still endorsed but it does so "through the pooling of risks" (p. 11). The aspiration of a society of dignity is freedom from economic necessity. Where peoples' choices "are driven by their needs and their fear of losing their livelihood" (p. 12), they are not really "free." Constitutionalism 2.0 is all about rising above the buffeting effects "of our nature" (p. 13) as we try to free ourselves from the "potentially enslaving effects of bourgeois emancipation" (p. 13). It's all quite bleak.

American constitutional practice is fixated on interpretation of the written text of its constitution. This practice is the key element of the judicial review of the constitutionality of legislation. By contrast, Constitutionalism 2.0 is grounded in the recognition of human rights. In this regard, the reflexive constitutional engagements revolve around proportionality. The questions are "whether government action has been too intrusive vis-a-vis fundamental rights or not sufficiently protective of them" (p. 17).

Now Constitutionalism 3.0 starts to emerge. (18) 2.0 is based on recognition of human rights. But this presupposition occurs within the frame of a state with sovereign peoples. Curiously, human rights--which are supposed to be "superior" to sovereign authority--require that very same...