In Defence of Constitutional Law

Publication Date01 January 2018
AuthorPavlos Eleftheriadis
In Defence of Constitutional Law
Pavlos Eleftheriadis
David Dyzenhaus and Malcolm Thorburn (eds),Philosophical Foundations
of Constitutional Law, Oxford: Oxford University Press, 2016, 332 pp,
hb £60.00.
Jacob Weinrib,Dimensions of Dignity: The Theor y and Practice of Mod-
ern Constitutional Law, Cambridge: Cambridge University Press, 2016,
299 pp, hb £69.99.
In the Federalist Papers Alexander Hamilton gives a robust defence of consti-
tutional law and especially the review of legislative acts by the judiciary. He
famously notes that
in a government in which [the different departments of power] are separated from
each other, the judiciary, because of the nature of its functions, will always be the
least dangerous to the political rights of the Constitution.1
It is the least dangerous because it is the branch that threatens liberty the
least. He explains that the executive ‘not only dispenses the honors but holds
the sword of the community’, whereas the legislature ‘not only commands
the purse but prescribes the rules by which the duties and rights of every
citizen are to be regulated’.2So Hamilton argues that liberty is safest where the
courts can monitor a ‘limited’ constitution, ie one where legislative authority
is prevented from violating the rights of individuals. The constitution is guided
by a principle of liberty.
Immediately after saying that, however, Hamilton addresses the question if
this doctrine makes the judiciary ‘superior’ to leg islative power, something
he considers unacceptable in principle. He sets out to dispel that impression
by saying that the courts are only ‘an intermediate body between the people
and the legislature in order, among other things, to keep the latter within the
limits assigned to their authority’.3This means, however, that his account of
constitutional law has changed direction. He has moved from the protection of
liberty to a different principle. His argument is now about the ‘authorisation’,
legal or otherwise, of the people to constitutional bodies to make laws and
Professor of Public Law and Fellow of Mansfield College, University of Oxford
1 James Madison, Alexander Hamilton and John Jay, The Federalist Papers, edited by I. Kramnick
(London: Penguin, 1987; first published 1788) No 78, 437.
2ibid, 437.
3ibid, 439.
C2018 The Author.The Moder n Law Review C2018 The Modern Law Review Limited. (2018) 81(1) MLR 154–178
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Pavlos Eleftheriadis
other decisions in the name of the people. This argument elevates ‘the people’,
as a third body above both the legislature and the judiciary, whose ‘power is
superior to both’.4Authorised power is, now, above liberty. And thus Hamil-
ton has taken constitutional law into a blind alley. For what happens if the
people turn themselves against the constitution and against liberty? Constitu-
tional law may become a tool for oppression, not liberty. The challenge is not
purely theoretical. In April 2017 the Turkish people voted, albeit narrowly, in
support of changes to the constitution that will restrict the independence of
the judiciary and the accountability of the executive.5Similarly, in September
2016 the people of Azerbaijan voted in favour of a similarly authoritarian set
of constitutional amendments.6We can think of other examples. The majority
is not always aware or supportive of the institutions of liberty.
Hamilton saw clearly the potential for constitutional paradox. He writes:
This independence of the judges is equally requisite to guard the Constitution
and the rights of individuals from the effects of those ill humors which the arts of
designing men, or the influence of particular conjunctures, sometimes disseminate
among the people themselves, and which, though they speedily give place to better
information, and more deliberate reflection, have a tendency, in the meantime, to
occasion dangerous innovations in the government, and serious oppressions of the
minor party in the community.7
This awkward sentence merely records the dangers of constitution-making,
however, it does not respond to them. Hamilton then adds that a ‘momentary
inclination’ should not be a reason for violating the constitution, even if a
majority wanted it. But he does not take his thoughts any further. He does not
say what happens if the majority does act in full conformity with legal process
in order precisely to violate a minority’s constitutional rights and the principle
of liberty. I shall refer to this as ‘Hamilton’s dilemma’.
Modern thinkers are also aware of the dilemma between liberty and author-
ity. The question arises in theor y, for example in the philosophical discussions
of the concept of sovereignty,8butitalsoarisesinpractice.Thetriumphof
populist and nationalist movements in many parts of the world in recent years
4ibid, 439.
5 For the Turkish referendum and its context see the Report by the Parliamentary Assem-
bly of the Council of Europe, ‘Observations on the Constitutional Amendments in Turkey
(16 April 2017)’ (Rapporteur: Cezar Flor in Preda) Doc 14327, 29 May 2017. The constitu-
tional proposals are usefully summarised (and fairly criticised) in S¸ irin, Tolga, ‘New Constitu-
tional Amendment Proposal in Turkey: A Threat to Pluralistic Democracy!’ Verfassungsblog
31 January 2017 at
turkey-a-threat-to-pluralistic-democracy/ (last accessed 10 October 2017).
6 The preliminary report on the Azerbaijan referendum prepared by the Venice Commission is
highly critical of both the content and the process. See European Commission for Democracy
Through Law (Venice Commission), Council of Europe, ‘Azerbaijan: Preliminary Opinion
on the Draft Modifications to the Constitution Submitted to the 26 September Referendum’
Opinion No 864.22016, CDL-PI (2016)010, 20 September 2016.
7Federalist Papers n 1 above, 440.
8 See, for example, the essays by Loughlin, Walker and Lindahl in M. Loughlin and N. Walker
(eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford: OUP,
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(1) MLR 154–178 155

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