Does the constitution differ from constitutionalism?

47 The Constitution - A Liberal Success Story? Constitutionalism and the precarious foundations of a democratic order Hans Vorländer 1. Introduction The title "The Constitution - a liberal success story?" Is a temptation. The temptation is to sketch a success story of the constitution and the constitutional state that ended in the 18th Century with the liberal ideas and bourgeois movements, then emphasizes the waves of constitutionalization processes that can be recorded especially in the 20th century and finally comes to the result that the triumph of constitutionalism can be established at the beginning of the 21st century. Such a history of linear constitutionalization progress could point to the fact that many democratic states after the Second World War formed themselves according to a very specific model, which was founded in the United States in 1776 and 1787. The separation of powers, the protection of fundamental rights, representative democratic institutions, a strong judiciary and, for the most part, constitutional jurisdiction have given the type of constitutional democracy or fundamental rights democracy worldwide validity. In this respect, the democratization processes after 1945, the fall of the dictatorships in Southern Europe (Greece, Portugal, Spain) and after 1990 in Central and Eastern Europe were the last decisive stages in the implementation of the constitutional state. What was formulated so pointedly and pathetically in Article 16 of the Declaration of Human and Civil Rights in 1789, namely that a society in which the separation of powers and the protection of fundamental rights is not guaranteed has no constitution, 1 has thus been fulfilled: Whoever has a constitution. And who belongs to the club of respectable democracies ____________________ 1 Declaration des Droits de l'Homme et du Citoyen de 1789: “Toute Société dans laquelle la garantie des Droits n'est pas assurée, ni la séparation des Pouvoirs déterminée, n'a point de Constitution ". Hans Vorländer 48 would like to, must guarantee the protection of fundamental rights and separate powers. The fact that far more than half of the existing constitutions have been reformed or even completely revised since the mid-1970s undoubtedly speaks for the attractiveness of the constitutional concept. But the narrative of the triumph of constitutionalism in the 20th and early 21st centuries is too beautiful an auto-suggestion by the Friends of the Constitution. Like all self-descriptions, this constitutional narrative also has the crucial flaw that it ignores the dark sides, the failure of liberal and democratic orders, the breach of constitutional principles and the latent threat or the manifest presence of dictatorial, authoritarian or semi-authoritarian orders (although even these do not seldom try to hide behind constitutional, legal-looking facades) .2 Anyone who believes that with the beginning of the 21st century history has come to its end of constitutional fulfillment with no alternative will suddenly be torn out of their 'sweet dreams' when now shows that Eastern and Central European states are beginning to turn away from the model of constitutional democracy, that the European Union is in a state of hybrid, open-ended attempts at constitutionalization, and that globalization processes are constitutionalism to deprive them of territorial state foundations. Although it seemed as if the idea of ​​a global constitutionalism could become a new, utopian concept of longing and project a universal legal order of the world as a “concept of movement” in the sense of Koselleck, disillusionment has spread here too. The hype about constitutionalism, which we too, albeit somewhat belatedly, sparked and then fueled in science and the theory of politics because it may have been the last, for a long time unsettled area of ​​supposedly domesticated or power-dominating normativity discourses Overall, let us overlook the fact that the type of liberal and democratic constitutionalism was inscribed from the start with an unstable, disruptive network of institutional, procedural, socio-moral and cultural precautions and assumptions. Because the logics, prerequisites and contexts of constitutionalism are characterized by tensions which can normally be dealt with politically and procedurally, but which can just as well be used for historical ____________________ 2 This is already the case for the cases of “pseudo constitutionalism” Löwenstein, Verfassungslehre (in the original: Political Power and the Governmental Process). The Constitution - a Liberal Success Story? 49 failure of the model of liberal and democratic constitutionalism and can lead again. In the following, I will take a closer look at four levels of tension in due course. On the one hand, there is the question of how constitutional orders are established and preserved. Under the auspices of democracy theory, this question can be thematized as the tension between the assertion of autonomy and the practice of unavailability. Second, there is the question of the relationship between constitutionalism and democracy, or to put it another way: the question of sovereignty in the constitutional state. This is about the tension between empowerment and disempowerment. Thirdly, the constitutionalisms of modernity are predominantly geared towards representative forms of political will and decision-making, which call for the relationship between representation and the immediacy of political action. And finally, the model of democratic constitutionalism stands in the tension between universality and the context of particularity. This is primarily about determining the political space in which a constitution should and will apply. When I subsequently speak of constitutionalism, I mean the liberal and democratic type of constitution that emerged in the second half of the 18th century and that is the result of diverse transformations, adaptations and amalgamations of ancient, urban republican and early modern traditions of premodern constitutionalism, which in the Greek Poleis, in republican Rome, in the communalism of northern Italy, but also in the statutes of religious orders and universities. I am not following these historical paths here, even if they are extremely informative in terms of development.3 What matters here and now is the theoretical and systematic tensions in which a liberalism of rights and a democracy, understood as civic self-government, become a type of constitutional Democracy. 4 ____________________ 3 Cf. Vorländer, Die Verfassungs, as well as McIlwain, Constitutionalism. 4 In the following, I will repeatedly refer to previously published work on partial aspects that are dealt with in these chapters. In general, the references are reduced to a minimum. Hans Vorländer 50 2. Constitutionalistic paradox of unavailability Constitutions are usually given after political or social upheavals or revolutions. The future order to be designed appears like a blank sheet of paper: the pouvoir constituant is free to dispose of this in toto and thus to determine whatever it considers essential to be the basis for fixing. At the same time, however, the founding phases of modern constitutions show that where the demos has the constitutional power, unavailabilities are created that create effects of self-binding for the future of the constituted order. The protection of basic rights, the division of powers, the order of competencies, institutions, social and political goals are given a special priority over ordinary law and everyday politics as part of the raison d'être constitutional order and the constitution. The given constitution is expected to withstand the contingencies and decisions of the political process. Here constitutionalism becomes a mode of liberal and democratic order stabilization. At the same time, a tension is created, which consists in transforming constituent autonomy into constitutional expectation and self-commitment, i.e. to keep legally secured unavailability with at the same time potentially unlimited availability of the political order in the democratic process. This can be called the constitutionalist paradox of unavailability.5 In systematic terms, this paradoxical connection between democratic autonomy and constitutional unavailability is already discussed in the discourses on the establishment and maintenance of modern liberal and democratic systems. For example, in his reflections on the establishment of a democratic republic, Jean-Jacques Rousseau asked how this could be established and maintained. Obviously, contractual and rational justifications based on self-authorization and self-legislation for the establishment of the êtat civil were not sufficient to safeguard it for the future. Rousseau's solution to the problem consisted of three forms of sacralising the founding process: on the one hand, in transcending the social contract into the quasi-divine work of creation of the grand ____________________ 5 In somewhat different formulations, see also Fischer, Zukunft einer Provokation, and, with reference to constitutionalism, further Loughlin / Walker, Paradox of Constitutionalism, and Vorländer, Demokratie und Transzendenz, pp. 11-37. The Constitution - a Liberal Success Story? 51 legislator, secondly in the creation of a religion civile, a civic creed, which, together with the third form, the establishment of a republican festival culture, makes the validity requirements of the democratic order, which are regarded as unavailable, accessible in ritual, cultic and performative acts and thus present and symbolic keeps available. In this way, Rousseau hoped that the act of establishing the state céleste et indéstructible, carried out by a “great legislator”, could be made. The civil religion should ensure a degree of sociability that goes beyond compliance with the law, without which the political order would not be able to exist in the long term. And in the festivals the communion was to be carried out, renewed and reaffirmed again and again.6 What was at stake here with Rousseau, but by no means only with him, but also with the American Federalists, that was the question of how the paradox could be overcome that Constitutionalism, which in its justification is based on autonomy and self-legislation, in order to be able to establish its legal-institutional arrangement in the long term, must fall back on precisely those conditions and resources that it believed it could no longer fall back on or should no longer have. That is why Rousseau reintroduced religion - in its social function - through the back door in order to give the treaty a sacred rank, and the American Federalists relied on republican civic virtues and the religiously inspired sense of the mission of a novus ordo saeclorum, in order to enforce the constitution put into effect by democratic ratification to allow a “sanctification” to be granted and in this way to be able to generate the “binding power of what is founded” 7. Since then, various forms of “constitutional sacralization” have been empirically proven over the past two and a half centuries.8 The Basic Law of the Federal Republic of Germany, even exaggerated in terms of civil religion, even believed it could fix an eternity guarantee as a constitutional norm program. Attempts to cope with the constitutional paradox of inaccessibility are and will remain precarious. For constitutions in which the foundation and the foundations of order are preserved may, ____________________ 6 Vorländer, Do democracies need a civil religion ?, pp. 143-162. 7 Arendt, Was ist Authority ?, p. 188. 8 See also Vorländer, Demokratie und Transzendenz, pp. 11-37; on the empirically found forms of constitutional sacralization see for example Vorländer, Verfassungsverehrung in Amerika, pp. 69-82; Schulz, The Sacred in the Age of Its Political Reproduction, pp. 335-353, and with a critical view of Germany Dreier, Does the Basic Law apply forever? Hans Vorländer 52, for good and historical reasons, declare fundamental central ideas, rights and institutions to be inviolable, but they only receive the status of "sanctified" unavailability when the reasons for their sacralization are discursively present and made present in symbolic practices, remembered, renewed and by believed by the citizens, that is, believed to be correct. But that is by no means guaranteed. With the unavailability and the attached sacralization, however, there is also the structural risk of over-constitutionalization. Containment becomes narrowing - namely where the space for will-making and decision-making is taken away from the democratic process in order to implement policy changes that result from changed problems or changed majorities. Constitutional courts, as “guardians of the constitution”, can unduly restrict the legislative scope of action, politics becomes the implementation of constitutional pre-determinations, democratic politics is delegitimized. The over-representativity of a system of government in which skepticism towards the people leads to the independence of officials, state actors and political elites tends in the same direction. In both cases, liberal democracy loses its delicate balance. 3. Paradox of the constitutional sovereignty of the people The case of conflict raises awareness of the tension. If the German Bundestag passes a law with the majority of its members and this law receives an attestation of unconstitutionality during the constitutional review by the Constitutional Court, then it becomes clear that the legislature does not have the last word. The constitutional history of the Federal Republic of Germany knows a number of cases in which the Bundestag passed a law and this was subsequently declared unconstitutional and thus null and void by the Federal Constitutional Court.9 The conflict-ridden constitutional situation becomes clear: Democracy and constitutionalism are in a tension. Constitutions restrict the majority will. You impose content and procedural limits on it. The will of the people cannot do everything, it is bound. Not only are the state power, the executive, put on chains, ____________________ 9 Here I follow my considerations in Vorländer, Die Suprematie der Verfassungs, pp. 373-383. The Constitution - a Liberal Success Story? Not only is state power bound by law and order. The democratic legislature, the parliament, as a representative, representative exercise of the will of the people, is also subject to legal limits. But what does that mean? That means nothing else than that issues, decision-making and regulation items are withdrawn from the political process because majorities do not guarantee that they protect important legal interests that are considered particularly important. More than that, it also means that the constitution-giver, the pouvoir constituant, has imposed conditions on the constituted powers, to which the pouvoirs constitués must subsequently be bound. “It is a contradiction,” says Rousseau, “that sovereign power should put shackles on itself” .10 And yet it is like this: the constitution-giver binds the powers constituted by the constitution. And not only that, the constitution breaks the democratic majority system and domesticated the demos. The authorization by the constitutional giver is followed by the disempowerment of the constitutional powers. If the constitution constitutes the democratic powers, the constitution fundamentally limits the principle of democracy. Here the constitution moves into the place that was historically held first by a sovereign person, the ruler, the monarch, and then, in the figure of pure democracy, by the sovereignty of the people. First, protection from the king is sought in the late medieval constitutiones, the lois fondamentales or the leges fundamentales, the power contracts. Then, that is the theoretical problem with John Stuart Mill and Alexis de Tocqueville and the practical problem of the American constitution, protection is sought from the sovereignty of the people and the majority tyranny, which is potentially always considered possible. According to constitutional reasoning, the constitution resolves the sovereignty problem with the help of the law.In order to clarify how the constitution is to be understood here, one can fall back on Luhmann's description of the evolutionary achievements of constitutions.11 Luhmann argues that the constitution introduces an asymmetry in the relationship between two different types of text, namely between the constitution and the rest of the law . This asymmetry of the different types of text cuts off the infinite regress in the question of validity and justification. The reference to unavailabilities, as previously described in Nature and ____________________ 10 Rousseau, Considerations on the Government of Poland, p. 593. 11 Cf. Vorländer, Die Suprematie der Verfassungs, pp. 373-383; see also Luhmann, Constitution as an evolutionary achievement, pp. 176-220. Hans Vorländer 54 Reason, when the limits of sovereign decision-making power was expressed, is replaced by the constitutional text. The constitution hierarchizes the legal norms and thus solves the problem of simple law of having to differentiate between right and wrong. The paradox is dealt with through the hierarchization of legal norms. In this way, conflicts are resolved through law and no longer at the expense of law. That is the one view of things. The constitution resolves a sovereignty conflict. The other side is that the constitution, through its claim to supremacy, also establishes a new conflict, let's call it an institutionally manifest conflict of sovereignty. Constitutions are texts, but texts require interpretation. You do not speak directly to the political actors. They require interpretation, specification and application. A constitution does not apply, is purely nominalistic, if it does not appoint someone to apply it - especially in the event of a conflict - and guarantee its implementation. Constitutions require an institution that embodies their auctoritas, une bouche de la constitution.12 The consequence, however, is obvious: With the interpretation of a constitution, the authority originally exercised by the sovereign constitutional legislature is transformed into an interpretation authority by the person appointed to interpret the constitution. Constitutionalism, which has been thought through to the end, thus leads to the establishment of a constitutional jurisdiction that authoritatively guarantees the interpretation and validity of the constitution, but thereby transfers the supremacy of the constitution in institutional and political terms into a jurisdiction of the constitutional court. The real winner of sovereignty in the constitutional state is the constitutional interpreter: the democratic-parliamentary legislative state becomes the constitutional jurisdiction state.13 The legislature is in the fore, the constitutional court has priority. The supremacy of the constitution is therefore ultimately based on a double translatio potestatis. The demos binds itself in and through the constitutional state, transfers its sovereignty to the procedurally and materially integrated constitutional powers. These in turn are subject to the constitutional ____________________ 12 In a slight modification of de Montesquieu, De l'esprit des lois: [L] es juges de la nation ne sont […] que la bouche qui prononce les paroles de la loi " , P. 57 (Book XI, Chapter VI); see also Vorländer, Deutungsmacht, pp. 9-33. 13 Böckenförde, State, Constitution, Democracy, p. 189ff. The Constitution - a Liberal Success Story? 55 jurisdiction. Wherever the constitutional interpreter can rely on his own institution in the concert of the constituted powers, the constitutional court is the winner of sovereignty. It gains interpretive power - to a degree that was initially inconceivable in the development phase of modern constitutionalism, even though it was based on logic. If, at the same time, the constitutional judiciary, as can often be observed empirically, is given a considerable degree of auratisation and sacralization, then the problems for the political process and the balance of tension between the political and judicial powers are obvious. It may be that this tension has long since been “defused” by looking at the almost two hundred and fifty-year-old tradition of the democratic constitutional state to a regular juxtaposition of democratic and constitutional principles. All functioning democracies, it seems, operate within boundaries drawn by restraint. But within the democratic-constitutional system there is always competition that immediately leads to institutional-political tensions and conflicts between the constituted powers when the democratic principle of sovereignty contradicts the preliminary constitutional decisions and their respective - constitutional - interpretations . And the conflict escalates dramatically to a conflict between two claims to sovereignty: the democratic and the constitutional, when the controlling and corrective function of the constitutional jurisdiction is questioned in its entirety. Discussions about the "delimitation" of constitutional jurisdiction, its active political role and the associated politicization of the judiciary and the juridification of the political process make the relationship between constitutionalism and democracy seem precarious again and again.14 This also applies wherever the on the one hand, an “over-constitutionalization” 15 is put forward, which superimposes the political spaces of sovereign state organization, and on the other hand, in a completely different context, the “will of the people” is brought into position against the rule of the constitutional judges. In both cases the balance threatens to overturn, in the first case it leaves ____________________ 14 Jestaedt et al., The court without borders. 15 Dieter Grimm uses the term in a different context; see Grimm, Europa ja - but which one ?, p. 116; see also Grimm, Freund der Verfassungs, p. 241. Hans Vorländer 56 readjust himself, but in the latter the type of constitutionally bound democracy is fundamentally questioned and its controlling effectiveness is robbed. 4. The constitutional paradox of representation Constitutional orders, insofar as they have emerged from the history of liberal development, are representative democratic systems. They are convinced that self-government, under the conditions of a large number of citizens, regional government organization and diversity of interests and values, cannot be democratically structured in any other way than in institutionally mediated forms of will-making and decision-making. However, the principle of representativeness seems to lead to paradoxical effects wherever political decision-making is overrepresentative and / or the mediation relationship between representatives and those represented is so disturbed that the legitimacy of representative forms and procedures is called into question in favor of the mode of undisguised immediacy of political action becomes. Representative democracies have been designed as robust political systems. A sophisticated institutional arrangement of political order has organized the will-making and decision-making process on various levels, preferring less the direct participation of citizens - beyond elections - than the vicarious execution of decision-making and control tasks. A complex system of mutually interacting institutions seeks to give democracy stability, legitimacy and efficiency. Last but not least, the problem of social cohesion that has become fragile should be solved by the representative form of democracy. The American Federalists in particular saw inequality, group formation and a plurality of interests as the hallmarks of modern, commercial society and concluded from this the structural reorganization of the old, ancient system of “pure democracy” .16 Thomas Paine, the revolutionary in North America from England, summed it up in his much-read Rights of Man from 1791/92: ____________________ 16 Hamilton et al., The Federalist Papers. The Constitution - a Liberal Success Story? 57 “Simple democracy was society governing itself without the aid of secondary means. By engrafting representation upon democracy, we arrive at a system of government capable of embracing and confederating all the various interests and every extent of territory and population ”.17 In addition, representative democracy also seemed to be an instrument for taming the passions of the masses. Through the institution of representation, the political will-making and decision-making processes should be more 'rational', not purely emotional and under the pressure of public opinion. John Stuart Mill and Alexis de Tocqueville, both liberal thinkers of the mid-19th century, expressed concern about a possible “tyranny of the majority” that threatened to emerge from the pressure of conformity of public opinion and end in a new form of arbitrary rule. 18 Representative democracy seemed to be most likely to be able to rob emotions and passions, opinions and moods of their immediate impact and to be able to defuse them through mechanisms of institutional filtering. Precisely because representative democracy organized its will-making and decision-making processes in opposition to different institutions, i.e. with the means of controlling and interlinking the powers of the legislative, executive and judicial branches, the various affects could be inhibited by affects; political ambition could be balanced by ambition itself and the “flames of indignation” 19 were able to be smothered in time. Representative democracy had thus become a model of political order which, in its representative constitution, tried to neutralize the problem of emotionalized masses and opinions - known from antiquity and repeatedly identified as a weakness of democracy. In representative democracy, the relationship between the represented and the representative, the political decision-making system and the social environment is crucial. Because the strength of representative democracy is also its weakness: the political decision-making system threatens to distance itself from the citizens, their interests, ideas and emotions. Where there is a rift between the people ____________________ 17 Paine, Rights of Man, p. 180. 18 Mill, On Freedom; another, reflections on representative democracy; de Tocqueville, On Democracy in America. 19 John Millars The Advancement of Manufactures, Commerce, and the Arts; and the tendency of this advancement to diffuse a Spirit of Liberty and Independence, quoted in Hirschman, Passenschaften und Interest, p. 100. Hans Vorländer 58 and his representatives emerge, the system of democracy loses its legitimacy.20 This is why the coupling the two levels are so vital. In some countries, representative forms are mixed with direct democratic elements, referendums, surveys, referendums. The Federal Republic of Germany was very cautious about this after 1949, the fathers and mothers of the Basic Law believed they were drawing (not always applicable) lessons from the failure of the Weimar Constitution and therefore set up a strongly representative system without providing direct decision-making powers to the citizens at the federal level. In the federal states and municipalities, however, there was and still is a wide range of direct democratic participation procedures, which were expanded again after 1990. Another arena of coupling the democratic decision-making system and the democratic lifeworld is constituted by the individual and political basic rights and communication rights. The protection of freedom of expression and freedom of the press, the right of assembly, the right to found associations and parties make it possible to develop an intermediary space of social and political institutions in which civil society acts and the political system - also far beyond elections - in a diverse range Knows how to address and influence forms. The public is the most important medium in which the communication of both levels succeeds, but can also fail. Here interests and ideas are articulated, aggregated, filtered and fed into the political decision-making system. The controversy of opinion, the resolution of conflicts creates and constitutes resonance spaces of the self-determining society and creates perspectives of generalizability, or at least the ability to approve of political decisions. In addition, because modern societies, in view of their unavoidable plurality of values, the multiplicity of interests and the diversity of individual life plans and political ideas, no longer have prior resources of social cohesion, the binding forces of religion, tradition and shared lifestyles can decrease in the public spaces also first create something like common sense, i.e. the individual sense for the common and the common sense of individuals, among the members of a political society. In many cases this is the result of complex, also conflict-ridden negotiation processes and ____________________ 20 Here the argumentation in Vorländer, When the people stand up against democracy, pp. 59-74, is followed. The Constitution - a Liberal Success Story? 59 practiced social cooperation practices. As Alexis de Tocqueville found in his analysis of the first mass democracy, the United States of America, in 1835/1840, the latter arise from the actions of citizens who, although they perceive their - well-understood - self-interests, but bring them to a balance with their fellow citizens are able to build up social capital of mutual trust and cooperation in this way. Without the exchange of opinions, the reconciliation of interests, the regulation of conflicts, without civil forms of civic cooperation, in short: ultimately, a representative democracy cannot manage without trust and cooperation. In fact, many social forms and institutions have both guaranteed social cohesion and played an important role in the transmission of society's interests and needs into the political arena. However, the failure of the democratic regime in the 20th century has also shown how precarious social cohesion is and how easily the division and polarization of a society can deprive democracy of the necessary legitimacy. However, this also means that these civil society 'switching points' between the individual citizen and the political decision-making system are crucial. For years, however, developments have been observed that have been diagnosed as a disruption of the mediation process and described partly as a crisis, partly as a fundamental change in democracy.21 On the one hand, the political foreground, the social infrastructure of democracy, is progressively disintegrating. Parties, unions, round tables and associations are increasingly losing their politically binding, organizing, but also integrating character. As a result, civil society is losing important social, intermediary institutions that mediate between the political and the lifeworld level. At the same time, the willingness to persist in political engagement is decreasing, while ad-hoc initiatives and anonymous forum comments on the Internet are advancing to new forms of activity. The new social media are causing a fundamental transformation of the public. Until now the public opinion and decision-making process was strongly influenced by the audio-visual and print media. Now the forms of internet communication are coming to the fore. These operate faster and are able to organize political articulation and protest on a case-by-case basis, and eruptive upheavals of political ____________________ 21 Cf. Vorländer, Kris, Critique and Scenarios, pp. 267-277. Hans Vorländer to create 60 moods. At the same time, hermetically sealed networks emerge which, as shared echo spaces, create communities of like-minded people that rule out contradiction. Where anger, anger and aggression, scandalization and conspiracy theories determine opinion, the digital age seems to be producing a new political type, that of indignation democracy. The “networked many” (Bernhard Pörksen) have power, but have no institutional connection to the political decision-making system. But they put the representative processes under time, reaction and decision pressure. These changes, which cannot really be assessed in their overall tendency, give the impression that representative democracy, which set out to productively turn the problem of precarious cohesion in modern, differentiated society, has now itself become a problem. Above all, its breaking point becomes clear: the system of representation of will and decision-making seems to have largely become independent and to have lost contact with those represented.In the perception of many citizens, a "felt" distance to the representatives has developed, political alienation is growing, as is dissatisfaction with democracy. Populisms flow into the breaking point, making use of a dichotomous worldview of 'above' and 'below', of people and elite, and thus denying the legitimacy of representative democracy. Wherever they are particularly successful and find themselves in government functions, it becomes obvious that they are primarily concerned with the elimination of those power-inhibiting mechanisms and civil society spaces that are constitutive for the type of representative democracy. In the “illiberal democracy” model, the autonomy of the judiciary, constitutional jurisdiction and the media are curtailed or even directly subjected to the majority democratic claim to leadership of the populists. 5. The constitutional globalization paradox Those processes that we try to capture in a somewhat simplistic way in the container term “globalization” also create a new situation for constitutionalism, which can be described as a tension between universality on the one hand and reference to spatial contexts of particularity on the other. Because the economic, technological and communicative processes adhere less and less to the constitution - a liberal success story? 61 more or less artificial borders of nation states. This, it seems, not only increases the problems, but also the need for constitutional regulation in the supranational area. Constitutions, however, have developed in state-defined and territorially delimited areas; entrusting them with a 'limitless' task of order may then appear paradoxical because they are released from their particular context of validity. The development of modern statehood was decisive for the evolutionary narrative of modern constitutionalism, under the conditions of which - unification of the territory, central control, uniform legal area - the constitution should first materialize its program of norms. The conception of a modern constitution could become deficient as an epoch-specific expression at the moment when the strong, reciprocal relationship between constitution and statehood dissolves, but a supranational, transnational or societal constitutional concept is either not visible or lacks that normative validity that the For a long time, it has made the constitutional concept attractive. The case of the European Union in particular gives cause to diagnose a loosening, if not a dissolution of the exclusive link between constitutionality and statehood. At the same time, however, the idea of ​​a common constitution, which could be understood as the normative basis of the European integration process, has failed. This does not mean that an end to modern constitutionalism as we believe we know it must be prematurely predicted, but it could come under pressure. The central question that has therefore been negotiated in the constitutionalism debate in recent years was whether constitutions can also be conceived 'above' the state, in the inter-, supra- and transnational space, and thus also their fundamental function of legal shaping and regulation of political orders can assert in post-nation-state contexts. Or are constitutions so closely linked to the structure of modern statehood that they cannot be applied 'beyond' the state and lose their basic functions? In the debate about the concept of constitutionalism, which is adequate for the present day, the question is answered differently.22 A democratic ____________________ 22 Cf. Vorländer, The Constitution before, after, above and below the state, pp. 23-42. For the different approaches to bringing these new developments to the fore, see for example Grimm, Gesellschaftlicher Konstitutionalismus, p. 81; see Hans Vorländer 62 table-statist approach is convinced of the inseparability of the modern constitution and the modern state. In the escalation that without a state the constitution loses its effect, its function and its normative meaning, it is also decided at the same time that there cannot be a constitution beyond the state. Any form of constitutionalism that denies this basic connection remains deficient. From the perspective of an approach related to the evolution of systems, a constitutional concept that is restricted to the state is wrongly conceived. In its development of differentiated societies, modernity then created systemic intrinsic logics that can no longer be brought under a single 'constitutional hat' from the outset. Constitutions are to be understood as programs for the serial operations of legal systems, the task of which is to establish consistency in the decision-making process according to the code of right / wrong and which at best have a form of structural coupling with the other social sub-systems, especially politics. So the question of the constitution, the transfer of constitutional ideas and principles to a supranational context, is actually wrong. There is therefore just as little a constitution beyond the state here as there is in the statist reading of constitutions, unless systemic regulations and their respective codification are described as a constitution in the semantics of constitutionalism. A third basic position accepts the connection between the state and the constitution, but is undecided on the question of whether constitutions in the fully valid sense of the statist semantics already exist in inter-, supra-, and transnational contexts. In and of itself, a basic constitutional order also seems to be desirable and necessary beyond the state. Global, cosmopolitan constitutionalisms could only be a matter of time here; individual constitutional elements are already identified in international orders that have arisen on the basis of international law. Pragmatists and functionalists argue more cautiously, albeit remaining in this basic position, in inter- and ____________________ also the essays in Grimm, Die Zukunft der Verfassungs II; Sciulli, Theory of Societal Constitutionalism; Walker, The Idea of ​​Constitutional Pluralism, pp. 317-359; Krisch, Beyond Constitutionalism; Kumm, The Cosmopolitan Turn in Constitutionalism, pp. 258-325; Peters, The Merits of Global Constitutionalism, pp. 397-411; Schwöbel, Global Constitutionalism; Teubner, Fragments of the Constitution. The Constitution - a Liberal Success Story? 63 recognize transnational institutions and rules and then identify constitutionally adequate or at least constitutionally compensatory forms of constitutionalism. An adequate answer to the question about the possibilities and achievements of constitutionalism 'beyond' the state will in any case have to consider that constitutions are by no means inventions of modern statehood, even premodern, sectoral, particular and small-scale associations knew the regulatory functions and achievements of statutes and constitutions. It is undisputed that state-of-the-art state-of-the-art, with its comprehensive claim to rule that extends equally to territory and population, has also considerably expanded the normative claim to validity of constitutions. However, this does not yet make a statement about the actual validity relationships. Above, below, behind and in front of general legal systems, as understood by modern constitutions, “subsidiary constitutions” have always emerged which, in their normative factuality, allow the legal normativity claim to run dry and bring the so-called constitutional reality into a polemical position in front of constitutional law. In addition to these objections from the constitutional side, there are those of the comparatists, historians and social scientists: Non-written constitutional cultures rely on oral traditions, practiced practices, on canons of the obvious. And also written, documented 'sealed' constitutional traditions continue to be carried out performatively, through staging of themselves, their founding moments and their supporting institutions, also through a stream of interpretations and narratives.23 This is especially true of such apparently unstable orders as the Old Reich, which were described by some as a “monster” (Pufendorf), by others as “no longer comprehensible” (Hegel) and which ultimately can only be understood through their symbolic language and can be described as constitutions.24 These memories are not an objection in principle against the genesis and the success story of modern constitutions, but from an analytical point of view they open the view that under changed contextual conditions, ____________________ 23 Cf. Vorländer, Constitution and Rituale, pp. 135-147. Analyzing and comparing constitutions as complex narratives is also suggested by Frankenberg, Comparing Constitutions, pp. 439-459. 24 See, for example, the outstanding analysis by Stollberg-Rilinger, Des Kaiser’s old clothes. Hans Vorländer 64 conditions can also change the role, meaning and function of constitutional principles of order. It can be argued that current developments reveal the character of constitutions as an emergent order, whose normative validity claims are by no means guaranteed forever by the act of putting them into effect, but only through a complex process of recognition and acceptance in a political and social space The attribution of meaning and socio-political practices is generated or refused.25 This applies equally to state constitutions and to constitutions 'beyond' the state. With this 'different' concept of constitution as an emergent order, transnational, regional and global processes of constitutionalization can also be observed as constitutional processes - and the question is whether they are attributed to a normative political order with a comprehensive claim to regulative validity. Obviously, the character of the emergence of constitutional orders is where there is no written constitution, where there is no supposed "normal case" of constitutional order, which is expressed in a written, uniform, uno actu constitutional document. This shows a historical-evolutionary understanding of the constitution. The constitution is the expression of a concrete historical-political constitution of a community and to that extent an expression of existing and historically proven laws, customs, customs and habits.26 Thus the model of the constitutionalization of Europe corresponds to the English model of emergent constitutional orders.27 It rests on the continuous, through Treaties between the member states initiated legal order, which, beyond its contractual genesis, has undergone constant training and interpretation, which was not only carried out by the political bodies in the narrower sense, by the Council and Commission, but also, and very decisively, by the European Court of justice. In fact, a constitutional order of the European Union has emerged that left the original basis of the treaties behind and achieved the transformative quality of a genuinely European constitutionalism in its dynamics. 243-263. 26 Vorländer, The three development paths of constitutionalism in Europe, pp. 21-42. 27 On the following, see Vorländer, Europes multiple Konstitutionalismen, pp. 178ff. 28 See Weiler, Transformation of Europe, pp. 2403-2483. The Constitution - a Liberal Success Story? 65 This form of an evolutionary constitutional order obviously reached its limits at the moment when, not least because of the expansion of the community after 1989, the gradualist method of gradual consolidation of integration created political problems that required a comprehensive institutional, even new constitutional foundation. The project of a European constitution pursued after the turn of the millennium could therefore also be seen as an attempt to expand the narrow, segmental community of lawyers, judges and 'Brussels Europeans' through the act of a genuinely European constitution. The European constitution was to emerge from the constitutionalization of Europe. Even if the draft of a European Constitution essentially “only” consisted of merging the previous treaties and enabling institutional reform, the semantics and thus also the symbolic reference context changed decisively. There was talk of a constitution, the declaration of fundamental rights, objectives and European symbols (flag, anthem) seemed to give Europe what had hitherto been reserved for the continental European nation-state, a 'fully valid' constitution that was previously only imaginable in symbiosis with modern statehood appeared. The "silent" integration of Europe had become a visible plan, the emergent constitutionalization process mutated into an intended, planned constitutional act. Because the draft of the European Constitutional Treaty made the European Union visible as a 'constitutionalized', transnational space, it also served as an ideal projection screen for national defensive reflexes. The symbolic excess of meaning which the constitutional project possessed was the undoing of the European Constitutional Treaty. The citizens of France and the Netherlands rejected, for whatever specific reason, the ideas of integration and orientation symbolically associated with the constitution of a supranational and transnational political space. Although EU Europe is by no means without a constitution in the empirical-descriptive sense and the legal system has constitutionally analogous normative effects, the project of the European constitution clearly showed the national defensive reflexes, which then came to a head with "Brexit" and in Central Europe, in Poland, Hungary and the Czech Republic, have led to considerable resistance to regulatory claims from “Brussels”, not least in connection with the 2015 immigration crisis. Hans Vorländer 66 6. Conclusion: The predetermined breaking points of constitutionalism Just as the constitutional idea and constitutionalism in its specific state and democracy-related form entered history about 250 years ago, so constitutionalism could also emerge from it again or in the In the course of transnationalization processes, find their way back to the forms of constitutional confusion that already characterized the so-called Old Reich. In any case, it cannot be assumed that constitutionalism can continue writing its history of progress in this way. The predetermined breaking points in the model of the liberal-democratic constitutional state have become too obvious for this. In this way, the concern can also be expressed that the constitution of the liberal-democratic type is not in good shape at the moment not only because, as Dieter Grimm emphasizes, the democratic constitutional state is being undermined by supranational and transnational regimes that are not or insufficiently legitimized 29 Incidentally, the globally active players in the financial, digital and goods industries should also be included in this. They all threaten to undermine the identity of public authority and collective self-determination that is peculiar to the democratic constitutional state. The concern for the democratically constituted state can also be articulated with regard to another conflict situation: the national populism that has recently emerged powerfully on both sides of the Atlantic. In these cases it is about nothing less than the loss of constitutional quality on all sides. A recurrent "vulgar democracy", which with the supposed will of the people justifies the elimination of the central achievements of constitutionalism, the separation of powers, basic rights, independence from the judiciary and the media, leads to less constitution - destroys it and constitutional democracy. The current challenge is to save the constitution from its plebiscitary-autocratic overhaul. If one looks at both phenomena, certainly also corresponding ones - supranationalism and transnationalism on the one hand, national populism on the other - then the assumption that the diagnosis cannot be dismissed is that constitutionalism as we know it, is in a pincer situation. 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