Constitutionalism and Time

The paper claims that the transformative nature of constitutionalist discourses can be traced in six ideal-types: legal, political, identitarian, societal, transformative and democratic constitutionalism. Each of these ideal-types reflects different understandings of constitutional time on the basis of their various articulations of the nature of commitment and of the relationship between constitutionalism and democracy. The need to strengthen both elements, without emphasising one to the detriment of the other, leads to suggesting, towards the end of the article, a seventh form of constitutionalism, i.e. communal constitutionalism, as a possible way forward in the debate. It is claimed that communal constitutionalism‘s configuration of time allows incorporating the future and involving future generations in the deliberative process.

When Hannah Arendt reflected in 1954 on Europe‘s future, she feared the European project might be tempted to create an ‘other‘ against which to define its identity, resulting in false political closure, an exclusionary nationalism in new guise. Drawing on critical theory, this paper analyzes Arendt‘s warning as a problem familiar to modernity: reification—in which socio-historical relationships are misattributed as timeless relations among things. Centering reification yields two arguments to sustain European law‘s post-national ambitions. First, I show that existing principles of European jurisprudence (teleological interpretation, proportionality, non-discrimination) have counterproductive effects on EU politics insofar as each distinctly reifies the social-historical controversies addressed by adjudication. Second, I elaborate a corrective principle of EU law (anti-reification), which promises a more socially-embedded and historically-sensitive account of legality and legitimacy.

Major digital companies have attained a dominant position in the internet and can exert control not only on the information flow, but also on economic, political, and social structures. The power of these companies spurred discussions on digital constitutionalism, which expresses the need to protect fundamental rights and curb newly established (societal-private) powers affecting both the functioning of the Internet and our idea of a democratic society. The language of constitutionalism is normally deployed to tame the power of these platforms and private companies themselves have started applying it to their governance structures. This paper analyses the implications of shifting the vocabulary of constitutionalism from states to the private sector and questions the extent to which constitutionalism can, if viewed over a time span, live up to its promises when operating in a private and transnational setting.

The German Constitutional Court judgment of 24 March 2021 declared the Climate Change Act of 2019 unconstitutional because it disproportionately allocates the burden of reducing CO-2 emissions to future generations. By doing so the Court has taken in account a considerable time span, which includes the future. When dealing with long-lasting goals, like arresting the climate change, the law might assume an ultra-spective character: in order to ensure that the commitment undertaken today will be effectively achieved in the future, the law‘s effects shall be spread over different generations. The constitutional protection of rights must be therefore one for today and tomorrow, without offloading to future generations the burden to act. Consequently, also the reasonableness test regarding the compression of future rights shall be done according to the standards of today, in order to avoid harsher restrictions.

Can we represent future generations, when they cannot yet authorize a representative to speak on their behalf? Many environmentalists engaging in climate litigation answer this question affirmatively, as apparent from their claims on behalf of future generations. Yet representation of the unborn is problematized in political theory. Apart from the authorization problem, scholars raise a plurality and a non-identity problem. This paper shows these political-theoretical problems re-emerge in climate cases from the Netherlands, Norway, Germany and the EU. At times, courts find elegant solutions for the problems raised in theory. An important role is played by environmental constitutionalism. I submit that there is a way out of the theoretical problems: For future generations, we can enforce the minimum level of existence that is guaranteed by human rights. I call this the ‘minimum principle‘.