Theme Two: Oligarchic democracy in the history and theory of constitutional design.
This thematic enquiry examines different ideological and theoretical responses to oligarchic democracy in modern constitutional history (that is, since the American and French revolutions). It draws upon a typology of constitutions developed by Roberto Gargarella in The Legal Foundations of Inequality (2010). Gargarella, drawing primarily on Latin American examples, identifies three constitutional archetypes: conservative, liberal and radical constitutions. Conservative constitutions are orientated around a commitment to the preservation of order and authority; they seek to protect existing hierarchies of power and to maintain traditional social values and practices (Gargarella, 2010: 90-152). Liberal constitutions are concerned, primarily, with the protection of individual rights and the restriction of state power, whether this power is used for conservative (tradition defending) or radical (inequality removing) ends (Gargarella, 2010: 153-214). Radical constitutions are based, above all, on a principle of democratic populism; they seek to elicit and to apply the will of the people with a minimal degree of filtering or restraint (Gargarella, 2010: 9-89).
Gargarella’s typology focuses on the purpose, ideology and ethos of constitutions, rather than their structural features. It therefore cuts across other forms of classification, such as whether a state is unitary or federal, or has a presidential or parliamentary form of government, or a majoritarian or proportional electoral system. However, Gargarella argues that certain constitutional provisions, both in terms of structure and substance, generally follow from each of these models. Thus conservative constitutions typically concentrate power in the executive branch, while weakening legislatures, courts, sub-national authorities and other potentially competing centers of power. They minimize opportunities for direct, public participation, while adopting a minimalist approach to rights, which allows political authorities wide discretion in restricting rights on grounds of state security or to prevent assaults on the traditional moral order. Liberal constitutions are also dubious of the role of public participation, which they see as a route to majoritarian populism. They typically provide for judicially-enforced individual rights, for extensive checks and balances, a separation of powers between different branches of government, and often a federal division of powers between national and sub-national bodies.
Gargarella discusses the ‘fusion’ of liberal and conservative constitutional ideas that gave rise, in Latin America, to a period of relative institutional stability from the 1880s until the rise of populist mass politics challenged it in the interwar era. An earlier but similar fusion of liberal and conservative ideas – and a rejection of radical constitutionalism – can be seen in European constitutions of the early nineteenth century, roughly from the restoration of the Bourbons to the French throne in 1814 to the constitutions produced by the 1848 revolutions. Such a fusion is possible because, although differing on questions such as individual autonomy, religion-state relations, and the centralisation or decentralisation of power, liberal and conservative theorists share an essentially oligarchic conception of government. Both are wary of the people, and both believe – albeit for different reasons – that government should be directed by an elite class. Seen as a liberal-conservative fusion, oligarchic-democracy was at first a deliberate design choice of property-owning elites who, in the aftermath of the American Revolution, the French Revolution, and the 1848 Revolutions, feared that too much democracy would harm their interests. If these constitutions provided a basis for oligarchic democracy, it was not because an intended democracy had been corrupted, but because an intended oligarchy was forced, over time and in the face of social and political pressure, to make some compromise with democracy.
For conservatives, money and power go together in a traditional hierarchy of power. It is assumed that the rich have a right to rule, because they alone have a long term vested interest in society; property holding is associated, in the conservative mind, with competence and responsibility. Only the propertied (those whose ownership of productive property, and rentier lifestyle, enabled them to live without labour) were deemed to have the culture, leisure and educations necessary to rule. Only by concentrating power in a class of ‘gentlemen’ could civilisation be protected from the great unwashed. We see such views animating the Federalist party in the development of the US Constitution: ‘Conservative delegates among the framers – later the core of the Federalist Party – had feared that if ordinary people were given ready access to power they would bring about policies contrary to the views and interests of the more privileged classes, which, as the conservative delegates viewed their interests, were also the best interests of the country’ (Dahl, 2003: 24).
Subsequent generations of conservatives may have come to accept procedural democracy. Some did so reluctantly, as an expedient that could not be avoided. Others saw at least a basic level of procedural democracy as a powerful source of legitimacy for those in government. For conservatives, however, a trusteeship model of democracy prevails. The power to decide policy is still to be concentrated at the top and subject to as few constraints as possible. Opportunities for democratic action should be few, with long terms of office, less inclusive electoral systems, centralised decision-making, and a clear focus on the discretionary authority of the executive. In so far as rights are protected, primacy is given to property rights, rather than civil and political rights that could be used to challenge those in power, or socio-economic rights that could result in a redistribution of resources away from the elite. The privileges of particular classes – aristocrats, landowners, priests, the military – may also be protected, partly in order to bind these natural leaders, moral guardians and praetorians closely to the centre of political power and partly to guarantee their corporate influence over a polity and society that might otherwise go dangerously astray. The art of conservative constitution-making, then, is to use a minimal procedural democracy as a way of legitimating the state, while protecting elites against the levelling desires of the people.
For classical liberals and neo-liberals, likewise, money and power go naturally together. They are less concerned than conservatives with questions of fitness to rule, but equally concerned to avoid the levelling effects of democracy. The priority for classical and neo-liberals is to maintain a sphere of individual sovereignty that exists outside the control of the state, particularly with regard to property rights and freedom of contract. They value liberty, but do not conceive of liberty in its positive sense, as active participation in the public life and decision-making of the community; rather, they uphold liberty in narrow and mostly negative terms, primarily as freedom from state interference in social, cultural and economic matters. The state may be a realm of formal legal equality, but its scope is limited, and its influence on the very unequal realm of social, cultural and economic life should be minimal. Such liberals may be sceptical or at best ambivalent about democracy, but strongly committed to the principle of limited government. They regard the constitution as a means of, firstly, protecting private rights, and secondly of frustrating the exercise of public power. For this reason, they favour strong judicial review, enumerated (as opposed to plenary) powers for legislatures, federalism, strong bicameralism, separation of the powers between executive, legislative and judicial branches of government, and other impediments to majority rule, all of which make it more difficult people to channel economic grievances and inequalities into effective political action (Gargarella, 2010). These ideas have had a subtle but powerful resurgence under neo-liberalism, as privatisation, deregulation, and the ‘hollow state’ have re-imposed narrow limits on the scope of democratic public action (Marquand, 1997).
The third constitutional archetype identified by Gargarella is radicalism. Radical constitutionalism is committed to the principle of popular sovereignty, embedded in a vision of democracy in which the collective political will of the people is emphasised. Radical constitutions typically concentrate powers in elected legislatures – preferably unicameral ones, they are wary of second chambers and other checks and balances that could thwart the will of the popular majority. In so far as radicals agree that elected leaders representing the majority may require some external control, they prefer popular checks, through direct public participation, recall votes and the use of initiatives and referendums. Radical constitutionalism has also tended to promote a broad range of rights, including social and economic rights and rights enhancing political participation, but has been suspicious of enshrining the sort of rights that restrict the scope of democratic politics. Some radical constitutionalists have treated judicial review of the constitutionality of legislation with particular scepticism, because of a fear that unelected judges representing the legal elite will use the courts as a means of frustrating the decision-making power of the popular majority in favour of private property rights or other established private interests (Gargarella, 2010; 2014).
Radical constitutionalism had a brief heyday in the immediate aftermath of the American and French revolutions. In the United States, Thomas Paine and Thomas Jefferson were amongst its chief supporters. The 1776 Constitution of Pennsylvania, one of the most innovative texts of its time, was a prime example of the first generation of radical constitutionalism, with a wide suffrage, a unicameral legislature, and a preference for popular rather than inter-institutional checks and balances (Wood, 1969). These popular checks included annual elections, a requirement for bills to be circulated for public comment before being voted upon, and the direct popular election, at seven year intervals, of a ‘Council of Censors’ whose functions combined those of an impeachment tribunal, a court of auditors, an administrative ombudsman, and a constitutional court. Thomas Jefferson’s 1776 draft Constitution for Virginia included a provision abolishing entail and mandating the equal distribution of estates between all heirs, together with a provision enabling landless citizens to obtain 50 acres of unsettled government land; together, these provisions were intended to maintain an agrarian republic based on a wide and broadly egalitarian distribution of productive property. The distribution of property in society was regarded as an issue of constitutional importance, to be handled at a constitutional level, if a republic was to be secured.
Such experiments in radical constitutionalism were short-lived. After the initial phases of the revolution, more oligarchic constitutions, drawing on liberal and conservative ideas were to prevail. US Constitution in the Americas and the post-Napoleonic French Charter (1814) in Europe were to set the parameters for future constitutionalism on both sides of the Atlantic for the following century or more (Lane, 1996). These liberal-conservative constitutions prioritized the protection of private property rights and carefully excluded ‘the masses’ from exercising the sort of effective political power that could threaten the class interests of the rich.
However, constitutional design is not a static art. The period of time – a little less than a century – that separates, for example, the Italian constitutional Statuto of 1848 from the 1946 Constitution of Italy, marks an era of intense transformative development both in constitutional technology and constitutional thought. The Statuto of 1848 is a typical product, on the level of constitutional thought, of the liberal-conservative fusion. It sought to establish representative and deliberative parliamentary bodies that favoured the richest and most influential sections of the population and a system of limited rights that would provide the basis for a liberal-capitalist society operating under the rule of law, while concentrating leadership in a unitary government headed by a cabinet that was nominated by the king (Adams & Barile, 1972; Thornhill, 2011). The 1946 Italian Constitution not only incorporated several new constitutional technologies – a constitutional court, referendums, universal suffrage, proportional representation, a socio-economic council, positive parliamentarism, and a figurehead presidency – that did not exist a century earlier, but it also reflected a shift in expectations about what a constitution should achieve (through the inclusion of socio-economic rights, for example). The same contrast between two constitutional texts can be found in other countries over a similar period. One may compare, for example, the French Charter of 1814 with the Constitution of 1946, the Prussian Constitution of 1852 with the Basic Law of the Federal Republic of Germany of 1949, the Imperial Japanese constitution of 1889 with that of 1946, or the 1853 Constitution of Argentina with that of 1949. In each case we find an increase in the democratic features of the Constitution: expansion of the suffrage from limited to universal and a greater emphasis on effective but responsible democratic government. In many cases, we see the incorporation of a wider range of socio-economic rights, reflecting the acceptance by the state of broader socio-economic responsibilities – as found, for example, in the 1925 Constitution of Chile and the 1938 Constitution of Bolivia. Even in countries which had a more stable constitutional journey from the mid-nineteenth to the mid-twentieth century, we see similar trends. The Constitution of Belgium, for example, was transformed between 1893 and 1922 from a liberal-conservative oligarchic constitution, with a narrow tax-payer franchise and high property qualifications for public office, into a more democratic constitution characterised by proportional representation and universal suffrage (Fitzmaurice, 1996).
In those countries where universal or near-universal suffrage was established relatively early, it soon became apparent that the right to vote, in itself, would not guarantee a state that was inclusive of and responsive to the interests of non-elites. The power of oligarchy continued to operate – through ‘robber barons’ with links to politicians, campaign donations, lobbying and the development of ‘machine politics’ – a system of organised corruption that kept real power in the hands of those who could afford to buy or hire it. It was in this context that the Progressive movement arose in the United States, becoming an influential political force during the late 19th and early 20th centuries. The Progressives drew a connection between socio-economic conditions that condemned many to labour in squalor and poverty while robber barons engrossed the profits with a political system dominated by the ‘trusts’, the corporate lobby, and the corrupt machine politicians of the cities. They argued that policies favouring the rich were a product of political systems that enabled the rich to monopolise political power for their own class. The Progressive response was to seek to make political institutions more inclusive, less corrupt, and more effective. The US Constitution is notoriously difficult to amend, but much was achieved, notably the direct election of Senators and the authorisation of a federal income tax. At the state level, the Progressives introduced direct democracy measures such as the referendum and the citizens’ initiative to State constitutions and promoted the recall procedure for removing incumbents.
The contrast between radical-progressive constitutionalism and liberal-conservative ideas was also apparent in the judicial sphere, and in particular on the question of whether judicial review should set substantive limits on the scope of the state’s regulatory power over economic and social life. The radical argument is that democracy can operate only if it has the scope to do so, including ‘not only the ability but also the essential obligation to shape markets—through moral choices and government action—to create outcomes good for our communities’ (Liu and Hanauer, 2016). Constitutional provisions that had the effect of limiting the scope of democracy over the market and over the economic life of the nation could therefore be considered as pro-oligarchic provisions, since they place obstacles in the path of essentially egalitarian collective public power and leave economic affairs to the free play of inegalitarian private power.
In a series of US Supreme Court decisions, including such infamous cases as Lochner v. New York [1905] and Hammer v. Dagenhart [1918], the court limited the power of both state and federal legislatures to regulate working conditions. In other words, the court took the view that the constitution prevented the people, by means of legislative action in the public sphere from exercising collective power that would affect the lives of citizens. The US Supreme Court began reversing these decisions in the wake of the Great Depression, the New Deal, and the clear public demand for a more activist and interventionist government (Ackerman, 2000). President Franklin D. Roosevelt even went so far as to propose a ‘Second Bill of Rights’ which would have included social and economic rights, and presumably have empowered Congress to legislate to realise those rights – although this Second Bill of Rights never made it beyond the rhetorical stage and was never made the subject of a formal constitutional amendment (Sunstein, 2006).
In Australia, in contrast, the Constitution was amended in 1946 to empower the federal Parliament to legislate for ‘maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services […] benefits to students and family allowances’ (Sect. 51, xxiii-A). Although these provisions did not create a right to such benefits, they did grant the government the power to act, removing constitutional obstacles to the introduction of such benefits by ordinary law. The inclusion of these provisions may also have created an implicit expectation that the government had a duty to act in this sphere, making such policies more legitimate and harder to retreat back from. Conversely, provisions such as those in the 1980 Constitution of Chile, which entrench economically conservative fiscal and economic policies, making it very difficult for the state to nationalize industries or to provide public services (Bulmer, 2015), can be seen as pro-oligarchic, since they restrict the scope of democratic politics and increase the scope of private wealth and power.
Thus the treatment of oligarchy in constitutions could perhaps be theorised along two dimensions, as shown in Fig. 1 below. The first dimension concerns the degree of substantive equality of power and influence in the public sphere. The second concerns the boundaries between the public sphere, characterized by at least notional equality, and the private sphere characterized by inequality. Provisions that extend substantive equality of power and influence in the public sphere are anti-oligarchic, since they prevent oligarchic interests from exercising imperium – that is, public power (Pettit, 1997; Harrington, 1997). Provisions that keep control of resources and policy areas in the public sphere (for example, by keeping natural resources under public control rather than in private hands), or that prevent the bracketing off of economic relations in a realm of private activity in which the state may not tread (for example by regulating labour relations) are also anti-oligarchic, since they prevent the oligarchy from exercising dominion – that is, the power arising from private ownership.
Figure 1: A Possible Two-Dimensional Conceptualisation of Oligarchy
Public sphere characterised by wide and pervasive inequalities of power and influence between rich and non-rich.
Public sphere narrowly defined: economic matters not subject (or only minimally subject) to state regulation and control.
Public sphere widely defined. Economic matters subject to state regulation and control.
Public sphere characterised by relative equalities of power and influence between rich and non-rich.
These historical reflections on the ideology of constitutions are significant for the overall argument and purpose of the project, since the story told by these constitutional developments helps us to address the question of whether and how developments in constitutional design can effectively restrain oligarchy and strengthen the voice and influence of economic non-elites. The story that emerges, in country after country during this period, is of a liberal-conservative, deliberately oligarchic constitution that gives way, either through revolutionary or evolutionary change, to a different type of constitution – one that is more democratic and more collectivist. These new constitutions are less concerned with the limitation of state power and more concerned with placing state power in the hands of the popular majority, and with using that power to bring about progressive socio-economic change: from liberal-conservative to radical ideas.
In part, this change was a response to the so-called ‘social question’ – the brute fact that the liberal-conservative oligarchic state, combined with industrialisation, urbanisation, and the decline of pre-capitalist modes of production (such as artisan workshops) and relations of production (such as the guilds), brought about low living standards for many. The result was not only poverty, overcrowding, squalor, disease and misery, but also a loss of autonomy, a loss of place and culture, and a dehumanising sense of being voiceless, alone and uprooted – alienation in a multiplicity of forms. The working classes were not slow to realise that their grievances were not merely the result of blind economic forces, but were caused and compounded political decisions. Working class radical movements, such as the Chartists in the UK, concluded that constitutional change would be needed if those who had hitherto been excluded from power were to share in it. The liberal-conservative oligarchic was criticised as serving the private economic interests of a propertied elite, to the exclusion of the interests of the majority. The overwhelming objective of the non-elite, propertyless classes, therefore, was to gain control over the state – chiefly, although not only, through expansion of the suffrage and the responsibility of political leadership to the people – so that the state could then carry out the work of enforcing policies that would improve working and housing conditions, shift tax burdens from the poor to the rich, legalise trade unions, and create various forms of social assistance or national insurance provision.
Perhaps the harshest criticism of the liberal-conservative constitutional order during this period came from the Marxist tradition. Marx was not a constitutional thinker. He tended to downplay the role of institutions as mere ‘superstructure’ on top of class dynamics. From the outset, therefore, Marxist thinkers tended to be very sceptical of the capacity of representative democracy to be reformed in ways that would bring about the radical transformation they desired. The attitude to constitutional questions was one of the most important sources of disagreement between the communists, on the one hand, and the democratic socialists and social democrats on the other. The latter generally sided with progressives in promoting a form of radical, democratic constitutionalism that emphasised popular sovereignty, and they sought to obtain public office by winning elections held under universal suffrage. Communists, in contrast, considered that ‘bourgeois parliamentarism’, in which the government was merely an ‘executive committee of the ruling class’, was fundamentally incapable of being democratically reformed. It had to be overthrown and replaced by a new type of regime – the ‘dictatorship of the proletariat’, in which competitive party politics would be displaced by the vanguard leadership of the communist party. This alone would bring about eventual transformation into a classless Communist eternity in which the state, shorn of its function as a tool of the ruling class, would simply ‘wither away’ (Marx and Engels, 1848). That did not happen, but the communist tradition did result in some interesting innovation in constitutional design – most of which has been ignored by scholars, because of the non-competitive, single-party nature of communist regimes and their inability to sustain open societies or the rule of law. Nevertheless, despite these failures, we are interested in papers that reassess the socialist tradition of constitution-making, looking perhaps at some of the early revolutionary constitutions and constitutional proposals, adopted before the consolidation of one-party tyranny.
Aside from the radical, progressive and socialist traditions of constitutional thought, the other major ideological response to the liberal-oligarchic state during the period from the mid-19th to the mid-20th centuries came from Christian Democracy. The Christian Democratic tradition is little studied in English-language literature, since its impact on party politics and public policy in the Anglosphere has been limited (Hanley, 1996). Yet Christian Democratic thought has developed a sophisticated set of constitutional principles which have been very influential in continental European democracies (Fogarty, 1953). During the interwar period, the 1921 Constitution of Poland (Brzezinski, 2000) and the 1937 Constitution of Ireland (Keogh and McCarthy, 2003) were both based on Christian Democratic constitutional thought – indeed, these two texts may be taken almost as definitive expressions of that thought. However, the high-point of constitutional influence for Christian Democracy occurred during the democratic refoundation of Western Europe after the Second World War. The French Constitution of 1946 (Williams, 1954), and the Italian Constitution of the same year (Adams and Barile, 1972) were directly shaped by Christian Democratic principles, as well as being influenced by social democratic and left-liberal ideas. In other continental European countries, including the Netherlands, Luxembourg and Austria, Christian Democratic parties have been major parties of government in the twentieth century and, while not perhaps as influential at moments of constitutional founding, have been influential in shaping the practical working and development of the constitution.
Christian Democracy offered a sophisticated, theo-politically grounded critique of the liberal-conservative constitutional order, a coherent set of constitutional values or principles on which to base its own preferred constitutional order, and, withal, a coherent set of constitutional institutional prescriptions. Concepts such as ‘sphere sovereignty’, holistic personalism (as opposed to reductionist individualism), solidarity and subsidiarity – rooted in a Thomist Christo-Aristotelian view of the purpose and nature of the state as a servant of the common good – all intersected with a renewed commitment to the liberal-democratic state (as opposed to Catholic integralism or various forms of interwar authoritarian institutions) to produce a distinctively Christian Democratic constitutionalism. This was characterised by proportional representation, parliamentarism, regionalism or federalism as an expression of territorial subsidiarity, generous socio-economic rights which were nevertheless structured around the traditional family, and a co-operative policy making style which was inclusive of ‘social partners’ in the form of trade unions, professional associations and business.
The liberal state (following Gargarella’s terminology) sought to divide public power and to limit it, in order to protect the autonomy of an extra-political sphere of personal, social and economic life. This was rooted in beliefs about the self-sufficiency of social life and of markets, which needed only to be left alone by the state in order to flourish. The radical or progressive state sought to unite public power, under democratic leadership, in order to use public power to reshape social and economic relations for the benefit of non-elites, but its understanding of the nature of both ‘democracy’ and ‘the people’ was often crudely majoritarian. The Christian Democratic state, in contrast to both of these approaches, sought to share power – to include as many as possible in the decision-making process and to achieve the common good not through the crude application of majority force, but by a commitment to negotiation and compromise. Unlike the liberal state, Christian Democracy envisaged an active role for public authorities in promoting the ‘good life’ of its citizens through the regulation of markets, the provision or promotion of public goods and services, and the redistribution of wealth. Unlike the radical, progressive or socialist state, however, it attempted to distribute power both within the state, to different levels of government, and between the state and other institutions of solidarity, such as the family, the religious community, and the trade union or professional association. All this was underpinned by a concept of natural law which made Christian Democrats view popular sovereignty in less absolutist terms, and made them less hostile than radicals to judicial review (Kselman and Buttigieg, 2003). We are interested in papers examining the Christian Democratic tradition in constitutional design, and particularly in those assessing whether the insights of that tradition are capable of being universalised, outside of their specifically Christian context.
This necessarily brief survey of ideological and institutional constitutional developments between the middle of the 19th and the middle of the 20th centuries, gives rise to two points of fact that are relevant to this project. The first point is that oligarchic democracy was, at least initially and at least in part, a deliberate design choice for constitution-makers seeking to protect the interests of elites. A fusion of liberal and conservative ideas combined to produce constitutions in which property qualifications for office, limited suffrage, and various other institutional means, were used to limit democracy and promote oligarchy. This raises the question of to what extent oligarchic democracy represents a deliberate design choice by elites today. The second point is that a variety of ideological and institutional responses to liberal-conservative oligarchic constitutionalism arose, drawing the connection between the dire socio-economic conditions of the majority of the people and their exclusion from political power, and seeking ways in which to incorporate them in the decision-making process.
From these two points of fact, two further tentative conclusions follow. Firstly, that the constitution matters, and that those seeking to challenge and overcome the oligarchic domination of politics should consider – amongst a range of sub-constitutional legal and policy provisions – constitutional solutions. Secondly, that there are many possible constitutional variables to consider in designing a constitution that shift the balance in favour of democracy and away from oligarchy: universal suffrage can perhaps ensure that a state is an oligarchic democracy and not a pure oligarchy, but more detailed and innovative constitutional design may be necessary to strengthen the democratic aspect and weaken the oligarchic aspect.
Possible Questions to Consider:
How valid are conservative and liberal defences of oligarchy? Is it possible to have too much democracy, with oligarchy being a useful and necessary corrective against popular passions? Should we return the classical and renaissance ideal of the ‘mixed Constitution’, in which a deliberate melding of, and balance between, democratic and oligarchic elements is achieved? What relevance do 19th and early 20th century critiques of liberal-conservative constitutionalism have for today’s constitution-makers?Is the criticism of legal constitutionalism from the left (e.g.Hirschl) really only a criticism of liberal-conservative constitutionalism? Do these same objections apply to radical models?Do alternative (non-liberal) models of constitutionalism – such as the socialist and the civic republican model – have anything to teach today’s anti-oligarchic democrats?
Find other thematic areas of investigation:
- Theme One: The nature, extent and consequences of oligarchic democracy.
- Theme Two: Oligarchic democracy in the history and theory of constitutional design.
- Theme Three: Sub-, extra- and para- constitutional responses to oligarchic democracy.
- Theme Four: Existing constitutional responses to oligarchic democracy.
- Theme Five: Potential constitutional responses to oligarchic democracy.