Expanding Constitutionalism

I. New Constitutional Conflicts

Therefore pass these Sirens by, and stop your men’s ears with wax that none of them may hear; but if you like you can listen yourself, for you may get the men to bind you as you stand upright on a cross-piece half way up the mast, and they must lash the rope’s ends to the mast itself, that you may have the pleasure of listening. If you beg and pray the men to unloose you, then they must bind you faster.¹

With these words, Homer tells us in the Odyssey that the beautiful witch-goddess Circe warned Ulysses against the Sirens. Sirens were dangerous creatures, beautiful bird-like seductresses who lured nearby sailors with their enchanting music and voices to shipwreck on the rocky coast of their island. But with cunning obedience, Ulysses followed Circe’s advice. Tying his hands to the mast, he not only saved his ship from wreckage but also could listen joyfully to the sirens’ singing without falling for their deadly temptation. We can not only achieve sheer survival but also higher degrees of freedom through intelligent self-restraint. Freedom through self-restraint is Ulysses’ constitutional message.

Jon Elster applies Ulysses’ constitutional message to the individual rational actor. He criticizes the notion of rationality using economics, a discipline concerned with maximizing the satisfaction of agents’ present preferences.² Individual freedom through self-restraint means avoiding “irrational” desires.³

But Ulysses’ message is relevant not only for the individual. Instead, it concerns the constitution of the crew, the ship, and the collective enterprise of the Odyssey. In this collective dimension, Homer anticipates one of the strangest phenomenon which emerged in the modern nation-states’ political constitutions. The deadly temptations of power cannot be overcome by external restraints; instead, power needs to restrain itself. Self-limitations of power—here lies the historical success of nation-state constitutions: checks and balances; division of powers; procedural constraints on decisions; constitutional rights; and, more recently, Ewigkeitsklausel (eternity clauses), which block the democratic majority from abolishing human rights and democracy.

However, if we look closer to the situation, we realize that there are many sirens attacking Ulysses’ ship. The great error of state centrism in constitutional theory and practice is that it only addresses one temptation. Concentrating on the excesses of state power meant turning a blind eye to the manifold other sirenic temptations. Not only Thelxiepeia, but also Molpe, Aglaophonos, Peisithoe, Parthenope, Ligeia, Leucosia, Raidne, and Teles try to lure Ulysses’ crew with their seductive voices. Similarly, constitutional dangers are not only created by power but also by money, knowledge, technology, and medicine.

Today, the great constitutional conflicts are not only about the state constitution but also about the many constitutions within global society. The battlefields are the global constitution of the finance economy, of science and technology, and of the new digital media.⁴ Postmodern society is exposed to expansive, even totalitarian, tendencies of a variety of partial rationalities: monetarization, commodification, scientification, juridification, and medicalization. This is where Michel Foucault’s “capillary power” creeps in from the different disciplines within society, not just from the old “capital power” of the state.⁵ It finds its constitutional reaction in Jacques Derrida’s concept of the “capillary constitutions” within the many discourses in society.⁶

To be more concrete: during the last few years, a series of public scandals have raised the “new constitutional question.” Multinational corporations have violated human rights; the world Trade Organization’s decisions have endangered the environment and human health in the name of global free trade; there has been doping in sport; there has been corruption in medicine and science; private intermediaries have threatened freedom of conscience on the Internet; there have been massive invasions of privacy through data collection by private organizations; and global capital markets have unleashed catastrophic risks. Each of these scandals poses questions of external regulation and the internal constitution of these social sectors.

Where exactly lies the constitutional challenge beyond the nation-state? Homer tells us the Sirens’ temptation lies in what we would call collective addiction. As...