Andrew Arato and Gábor Halmai – Economic constitutionalism, the challenge of populism and the role of the constituent power

Abstract

The article seeks to explain and defend a new concept of economic constitutionalism, in response to the crisis of ‘neo-liberalism’ and the challenge of the new populists. It starts with four Hungarian ‘stories’ pointing to the failure of dealing with the predictable problems of the economic transition: exclusionary aspects of the Round Table, the Bokros austerity package, the relevant decision of the Constitutional Court in 1995, and the failure of constitution making over demands of institutionalized social partnership. Next, the paper derives a conception of dual economic constitutionalism from the Arato-Cohen theory of civil society, and from T.H. Marshall’s conception of social rights. We go on to describing the necessary components of such constitutionalism: justiciable social rights, and strong and democratic version of social partnership. The article identifies the current populist challenge and its constitutional implications as a response to the failure of bad policy choices, such as neoliberalism and austerity. We consider populism also as a reaction to the unfulfilled promise of social-rights constitutionalism, which was based on the idea of social rights being continuous to civil and political rights, but turned out to be a misconception in both national and EU constitutional practice. As Samuel Moyn argues, a commitment to material equality disappeared, in its place market fundamentalism has emerged as the dominant force of national and global economics. The article tries to answer the question, whether a renewal of economic constitutionalism through constitutional adjudication against the increased emphasis of market-based approaches, inspired by neoliberalism can promise to realize a social-welfare constitutionalism, as an economic specification of liberalism. The article ends with a notion of post-sovereign constituent power as representing the types of procedures that are most likely to establish a new economic constitutionalism, that is liberal, democratic and social.