The Communitarian Constitution

6. Mixed Constitutionalism and the Communitarian Hope

c h a p t e r s i x Mixed Constitutionalism and the Communitarian Hope The theoretical notion of communitarianism, I have argued thus far, appears to be mostly incompatible with the basic constitutionalist ideal. To put the point slightly di√erently, it should now be clear that the communitarian challenge to liberal dominance is circumscribed by the inability on the part of major communitarian supporters to envision a community-centered regime that is also attentive to the main components of modern constitutionalism. In the first place, the politics of community cannot adequately sustain an objectively detached and discernible charter; and secondly, the current conception of communitarianism has a di≈cult time admitting to self-imposed limits or restraints on the jurisdiction of democratic self-government. In the end, what remains a significant and important challenge to liberal theory appears to lack the necessary practical ingredients to make it a viably modern constitutional project. To this point, I have been mainly concerned with the imaginary construction of a communitarian polity. Using the broadest possible theoretical terms so as to adequately cover a largely undefined and expansive ideological position , I have asked how the principles of contemporary communitarianism and Mixed Constitutionalism and the Communitarian Hope 183 modern constitutionalism mesh. In this chapter I intend to explore the current universe of real constitutionalist polities by singling out two regimes whose organizing charters—‘‘constitutions’’ in the broadest sense of the term—do not exactly resemble the principally liberal ones so familiar to us. Alternative examples of constitutional texts do, in fact, exist; and in order to complete the study of communitarianism and constitutionalism, we need to explore how these constitutional forms manage to organize and empower their particular political societies. By identifying and investigating two of these alternative models, the hope is that we will more clearly see why predominantly communitarian regimes cannot support modern constitutionalist maxims. My purpose in exploring alternative constitutional designs is again to highlight , this time in a slightly di√erent manner, the incompatibility of communitarian thought and modern constitutional theory. In the pages that follow, I do not want to suggest that nonliberal or semi-liberal constitutions are defective in any way; indeed, as in the case of Israel, they are often the best matches for the type of political regime desired. Nonetheless, I do want to suggest that these constitutions are not wholly modern. For better or worse, the particular constitution that informs the Israeli polity embraces none of the principles of modern constitutionalism. It is neither objective nor impartial. As a series of governing documents, it does not exist outside or apart from the institutions it empowers; nor does it identify meaningful and discernible limits on the power of the sovereign. That, of course, is not to say that the constitution of Israel is not a constitution at all, only that it is not a modern constitution. Similarly, the semi-liberal constitution of the German Republic also does not fully qualify as a modern document. In contrast to the Israeli governing charter, the German Basic Law does reside externally, and is in some sense discernible. Its liberal pillar permits it to rest on certain modern constitutionalist foundations. But the relationship between the extremes of individualism and community found in the text is at best an uneasy one, and that has very real consequences for the document’s capacity to identify self-conscious restraints. Recent history has demonstrated, for example, that the limits supposedly imposed on representatives of the sovereign by a list of individual rights can be tempered or modified by the general will of the community. Tangible constraints on government, that is, can be subordinated by particular policies if the consequences of those policies prove beneficial to the community at large. In those instances, rare as they may be, it is di≈cult to characterize the German constitution as a document that can e√ectively obstruct the 184 The Communitarian Constitution wishes of the majority. Once again, we are thrust back into a scenario where we must decide between the desires of the community and the convictions of the modern constitutionalist. Alternative Constitutional Designs Surely, no one will be too surprised to learn that primarily liberal constitutions —constitutions that do not articulate a specific conception of the good— have been overwhelmingly favored by most newly formed states in the postEnlightenment era.∞ The success of polities like the...