Workshop 'Contesting Constitutionalism: The Counter-mobilizations'

Convened by Gaëtan Cliquennois & Cristina E. Parau (CNRS / IODE–Université de Rennes)

Several types of contestation of the post-War settlement and its evolution towards total constitutionalism (that refers to the expansion of judicial power and the growing role of civil society [NGOs and private foundations among the main private interest groups] in rights adjudication) start emerging and becoming the new normal. Beyond the rise of populist forces and conservative parties which have been intensively studied recently, certain national courts, too, are now exercising “voice” and even “exit”, with selective non-compliance or threats of jurisdictional withdrawal framed around democratic deficits, the rule of law, and national identity. A subtler but ever more potent source of resistance is emerging out of hybrid public-private actor-collectives who have received too little scholarly attention. Transnational conservative Christian networks mobilise in Brussels, Luxembourg, and Strasbourg, contesting both the cosmopolitan norms, and the militant laicism of supranational and international regimes and total constitutionalism through a Christian vision of national constitutions. In addition, an independent and left movement also challenges total constitutionalism on other grounds including its lack of democratic legitimacy and its neoliberal aspect.

This multifaceted resistance signals that the “new”, liberal constitutionalism is getting old and becoming embattled.

Responsibility for this crisis remains sharply contested: does it lie with one side and not the other? with both? neither? with an evolving complex of all three? As all ratified constitutions have been acts of supermajoritarian consensus—as without a societal consensus they cannot endure,—is the clash between liberal constitutionalists committed specifically to the post-1945 settlement versus those losing all conviction that constitutionalism itself is distinct from “the violence of faction” by other means (Madison 1787)?

The Workshop foregrounds as its most original contribution the proposition that constitutionalism itself is the site of the strategic contest. Americans have long treated the legitimacy of constitutional power as a bone of contention, even while it is fons et origo from the founding of the Republic. Yet, much of the scholarship in the field does not reflexively view constitutionalism as an arena of strategic action in which collective and individual actors compete over visions of constitutional order across multiple jurisdictions.

This Workshop illuminates this phenomenon by examining distinct but interlocking arenas of contestation. The contributors follow a common theme of contestation over constitutional developments from the subsidiary in Europe to the globalized beyond Europe to the most, beginning with the UK, then broadening to national and supranational Europe, the West, and then beyond.