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Visions of constitutionalism: Theory

Towards material anti-oligarchic constitutionalism

Camila Vergara

Abstracts

Constitutional democracies have allowed for patterns of accumulation of wealth at the top, leading to acute inequality and dangerous oligarchization of power. Moreover, the theoretical tools that liberal constitutionalism offers are inadequate to recognize systemic corruption and structural forms of domination that are enabled by law or its absence. As an alternative, the article proposes a material methodological approach to the study of constitutions. In the first section, it offers a critical analysis of the intellectual foundations of liberal constitutionalism, engaging with the right to property, political representation, and separation of powers. In the second section, it presents the intellectual foundations of plebeian constitutionalism in the works of Machiavelli, Condorcet, and Marx. Finally, it proposes a material approach to assessing constitutions, identifying the shortcomings of contemporary legal frameworks to materialize social rights, as well as new avenues for institutional anti-oligarchic innovation.

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  • 1 For an ‘elitist republican’ interpretation on the crisis of democracy, in which elites are the culp (...)
  • 2 Slobodian (2018) offers a Euro-centric, and therefore partial, historical account of neoliberalism, (...)
  • 3 To the point that today it is considered legitimate that three individuals in the U.S. own more wea (...)

1The idea that democracy is in crisis on several fronts has become commonplace. Even if it was only with the election of Donald Trump to the U.S. Presidency in 2016 that this narrative of democratic crisis went mainstream,1 this particular cycle of political decay in our constitutional regimes has a longer history. In terms of wealth distribution and growing inequality, democracies entered a new neoliberal phase in which the mechanisms of representation began to systematically malfunction, allocating most of the benefits of accelerated economic growth to the already rich and powerful and to the detriment of the majority. After the first neoliberal experiments in the 1970s and 1980s, led by General Augusto Pinochet in Chile, Margaret Thatcher in the United Kingdom, and Ronald Reagan in the United States,2 increasing income inequality and immiseration of the working classes was effectively de-politicized and naturalized.3

  • 4 Vergara 2020.
  • 5 An insight Robin (2017) has recently brought back to the political discussion: “The worst things th (...)

2When collectively created social wealth is consistently and increasingly accumulated by a small minority against the material interests of the majority, it means that the rules of the game, and how they are being used and abused, are benefiting the powerful few instead of the many. Since a democracy is a political regime in which an electoral majority rules, it makes sense to think that “good” democratic government would benefit (or at least not hurt) the interests of the majority. The opposite has been happening in most of the developing world as well as in advanced democracies, where the rates of inequality and corruption are growing or remain stubbornly high. The process by which a democratic society becomes increasingly oligarchic is what I have called systemic corruption.4 This type of structural corruption is not the aggregation of individual self-serving illegal acts but rather the process through which the self-serving behaviour of the most powerful in society is legally enabled. In other words, corruption —the undue benefit of some at the detriment of the rest— is done through the law, not against it.5 Even if it is evident that what is legal is not necessarily “good,” and what is corrupt is not necessarily illegal, under our current juridical conception of corruption, we are unable to account for legal corruption, for laws and policies that promoted the interests of a few against the common good. Consequently, our democratic order has inevitably drifted into oligarchic regimes that benefit disproportionately and systematically those who already have power, reproducing and deepening inequality.

  • 6 World Inequality Report 2022.

3Political power is today de facto oligarchic. In almost all representative democracies, the people who get to decide on policy, law, and the degree of protection of individual rights —the President, members of Congress, and Supreme Court justices— are part of the richest 10%, and therefore tend to have the same interests and worldview of the powerful few who benefit most from the status quo. Even in Europe, where most of the egalitarian countries are located and there is a robust middle class, the richest 10% concentrates about 58% of the wealth while the bottom 50% only 4%. At the other extreme is Latin America, where the richest 10% controls 77% of the wealth and the bottom 50% only 1%.6 The control of corporate interests over politics via campaign finance and lobbying, has allowed money to influence law-making, adjudicating, and public policy to build legal and material structures that disproportionally benefit the wealthy and harm the majority. Because patterns of accumulation of wealth at the top are enabled by existing rules and institutions, it is necessary to question not only our political regimes as experiments that have led to acute inequality and a dangerous oligarchization of power (and therefore in need of structural reform), but also our methodological approach to the study of constitutions —as the juridical framework that ultimately allows for inequality to be validated and reproduced.

4As a response to this political diagnosis, in which the crisis of democracy is due to an overgrowth of oligarchic power allowed and enabled by the juridical order, I propose adopting a material constitutional lens to rethink the republic from a structural perspective, acknowledging the necessity of approaching constitutionalism from a point of view that allows us to ‘see’ ever-expanding systemic corruption and oligarchic domination. In what follows I lay out the basic premises and philosophical foundations of material constitutionalism and compare this alternative constitutional ideology to legal formalism and proceduralism, highlighting the advantages of a material approach to properly account for systemic corruption and the oligarchic power that is currently being exercised and shielded from constitutional scrutiny. I begin by offering a critical interpretation of the foundations of the liberal ideology centred on private property that informed the design of the first constitutional representative governments, its relation to formalist and proceduralist legal thinking, and its limits in terms of being able to account for systemic corruption and structural forms of domination.

1 Critical interpretation of liberal constitutionalism

  • 7 For an interpretation of the constitution as having both regulatory and constitutive rules, see Hol (...)
  • 8 I follow Green 2016.

5Liberal constitutionalism sees the constitution as a set of “metaconstraints,”7 with individual rights as limits on governmental action and a system of separation of powers that produces an impartial rule of law able to deliver formal equal liberty to all. The philosophical foundations of our liberal constitutional orders come from a long tradition of thinkers who justified societies ruled by elites. What I have identified as an elitist-proceduralist interpretation of republican government traces back to Polybius and Cicero, and then was adapted to the modern commercial society by John Locke and the Baron of Montesquieu, before finally being constitutionalized at the federal level by James Madison in the United States. The elitism of this interpretation is based on its endorsement of elites —those who are distinct from the common people either by birth, wealth, knowledge, popularity or technical expertise— as better suited to rule and have final decision-making power. Its proceduralist bent comes from the conception that normativity emanates from the respect of procedures aimed at constraining the government by the few and that the observance of these procedures is sufficient for the rule of law to guarantee and promote liberty for all citizens.8 In other words, elite rule is legitimate and able to guarantee liberty for all if the procedures are correctly followed. However, this proceduralist approach to the rule of law is unable to account for the slow progression of systemic corruption. Formal and proceduralist views of the constitution focus on formal rules and delegation of powers, modes of selection, and equal constitutional rights, and neglect how political decision-making is actually done, the oligarchic interests behind candidates and parties, and the evident structural gender and racial oppressions existing alongside legal protections. Combined, these focuses and neglects cause them to become blind to systemi­c corruption —the structural favouring of the powerful few over the many— and actually occurring domination. Moreover, because this interpretation has historically been developed from the vantage point of elites, constitutional thought tends to be conservative of the existing socioeconomic hierarchies, often turning to idealism by proposing the suppression of class conflict and the embrace of harmony, tranquillity, security, and social peace as foundational principles.

  • 9 Locke 2003: 2.4.
  • 10 Locke 2003: 2.5.
  • 11 Power is a relational concept that denotes both “the state of having possibilities available and re (...)
  • 12 Locke 2003: 5.26.
  • 13 For an anti-egalitarian reading of Locke see Zucker 2000.

6John Locke is the father of political liberalism and one of the thinkers who had the most influence on the American founders. Locke imagined a state of nature in which equality and liberty are natural, and all individuals can do as they please, “subject only to limits set by the law of nature.”9 This is a state of perfect liberty and peace because “everyone knows the rules and canons natural reason has laid down for the guidance of our lives” based on natural equality.10 Consequently, in Locke’s idealistic pre-political community, every human has natural rights that ought to be recognized and respected. He does not, however, conceive of rights as the actual power to do something,11 but as formal entitlements that people have regardless of their actual individual capacity to exercise these rights. The formalism in the argument is more clearly exposed when Locke defines rights and equates them to property. Fundamental natural rights are for him “life, liberty and possessions,” but property is the most important in this trilogy, being a precondition to sustain life and liberty. Property is made by mixing “the labour of his body and the work of his hands” with nature, an indispensable process through which we can nurture ourselves and survive. Because to make use of nature “to the best advantage of life” one would first need to have “private dominion” over it,12 creating private property out of the commons is, for Locke, necessary.13 Property rights are therefore understood as the basis of all other rights, and even rights themselves are conceived as a form of ownership.

  • 14 Cicero 1913: 2.73.
  • 15 Locke 2003: 7.87.
  • 16 Locke 2003: 19.226.
  • 17 “A Declaration from the Poor Oppressed People of England” (1649). Less than one third of the land w (...)
  • 18 UK Parliament, Enclosing the Land. https://www.parliament.uk/about/livingheritage/transformingsocie (...)

7Following Cicero, for whom the republic is established to preserve private property (custodia rerum suarum),14 Locke repeatedly states that the protection of property —and not the general welfare or justice— is the main objective of the state, which is set up as an impartial “authority to decide controversies” and “punish offenders.”15 In such a system in which all are, at least formally, property owners, the only legitimate cause for rebellion against constituted authority is the violation of the “laws for the preservation of property, peace, and unity.”16 In other words, since the ‘rule of law’ is supposed to be the juridical expression of natural liberty, the only justified use of force in a republic is to defend the legal framework against tyranny. Locke’s idealistic state built on natural equality and liberty sharply contrasted with the Britain of his time, which was extremely unequal. Revolts had broken out a few decades before the publication of the Second Treatise (1689) against land enclosures by “levellers” and “diggers” who asserted a right to the Commons—to the use of common land that “belongs to us who are the poor oppressed.”17 In Locke’s theory of rights as property, there is no place for the collective rights to land claimed by plebeians or the recognition of material inequality and its effects on the effective enjoyment of rights. Even if in theory individuals were formally equal and free, they actually lived in a starkly unequal society in which the few rich and powerful owned most of the land and wrote laws to further oppress and expropriate the many. Between 1604 and 1914 over 5,200 enclosure bills privatizing common lands were enacted by Parliament —equivalent to 6.8 million acres or one-fifth of the total area of England.18 Given that plebeians had rights to the common land, such as pasture, pannage, and wood picking, privatization meant the effective ‘expropriation’ of their rights through ‘correct’ procedures.

  • 19 Montesquieu 1989: II.11, 6. Contrast this definition with ‘positive’ liberty as autonomy through di (...)
  • 20 Montesquieu 1989: II.11, 3.
  • 21 Montesquieu 1989: II.11, 3.

8To Locke’s formal equal rights and impartial state, Montesquieu —who wrote The Spirit of the Laws (1748) inspired by his stay in England, taking its political system as his model— added proceduralism and defined liberty in a ‘negative’ and individual sense. Liberty is for him both an individual “tranquillity of spirit” based on the absence of fear and a sense of security,19 and “the power of doing what we ought to will, and in not being constrained to do what we ought not to will.”20 Even if social peace, rule-following, and the internalization of norms are necessary for a stable republic, if individuals do not have the ability to partake in deciding those rules, liberty in this republic is nothing more than the feeling of safety in the obedience to imposed laws. Reducing liberty to security, Montesquieu argues for a mixed representative constitution to guarantee freedom for all through “moderation.” He theorized this constitution based on a Whig interpretation of the English political system, and proposed a hybrid commercial republic that incorporated the commercial spirit as a moderating force alongside the (potentially despotic) democratic virtue (“the love of equality and frugality”) generated by popular sovereignty. The result was an elitist, proceduralist model in which the common people’s only power was the right to elect representatives, while the few preserved their dominant position in the power structure through a formal institutional balance. By defining liberty as “the right to do everything the law permits”21 and then arguing that good laws are those resulting from the correct procedures and institutional checks and balances, Montesquieu pegs liberty to the rule of law, closing the possibility of legitimately questioning the law from outside formal political institutions, which are effectively controlled by the few.

  • 22 Montesquieu 1989: I.2, 2.
  • 23 Montesquieu 1989: II.11, 6.
  • 24 See Manin 2010.
  • 25 Montesquieu 1989: I.2, 2.
  • 26 For a review of elections in history, theory, and current practice, see Landemore 2020: chapters 2 (...)

9Following Cicero’s elitist republicanism, Montesquieu argues that while man has a natural ability to perceive merit and elect, the people in general are not competent enough to be elected.22 Even if he argued for extending the suffrage, giving the right to vote to all male citizens, he excluded those “whose estate is so humble that they are deemed to have no will of their own.” In addition to excluding the poor, for Montesquieu the right of the people to legislate is only exercised indirectly, through representatives who are selected from the elites. Even though in a free state the legislative power is the prerogative of “the people as a body,” he argues “the people should not enter the government except to choose their representatives; this is quite within their reach.”23 Representation thus appears not as a device to bridge the gap between the people and power, but as a mechanism to keep the people away from power through the formal expansion of the aristocratic procedure of election24 to the common people.25 While sortition —which actualizes equality— was the mode of selection used in ancient democracy, selecting rulers through voting based on superior skill, intelligence or status—which actualizes inequality by distinguishing some from the rest—was the preferred procedure for allocating power in most aristocratic republics.26

  • 27 Shay’s Rebellion (1786–87). See Nobles 2012.
  • 28 Farrand 2008: 181.
  • 29 74% of the framers were lenders of some sort, which puts the issue of debt and currency speculation (...)

10In the American implementation of Montesquieu’s model, the framers wanted to accomplish the Lockean state as protector of property. This was not only an ideological project but also a material one, considering that the constitution was drafted in the aftermath of a debt rebellion that set court houses on fire and sparked an armed insurrection.27 James Madison’s legal system was designed against the ‘tyranny of the majority’ as the greatest danger to the republic. He argued that pressures for wealth redistribution coming from below would be inevitable because “according to the equal laws of suffrage, the power will slide into the hands of the [poor].”28 One of the main objectives of the constitutional order that the founders were crafting was thus to legally block the democratic redistribution of property. In a Lockean fashion, in the Convention’s deliberations the defence of property as the principle aim of the state was not argued for so much on normative grounds, but it was just taken for granted as a pre-political right, an obvious claim almost all delegates —rich property owners and money lenders29— shared. The challenge before them was then how to guard, based on republican principles, against the redistributive property claims coming from the masses.

  • 30 Olson 2012.
  • 31 Hamilton, Madison & Jay 2003: Paper 10, 79.
  • 32 Hamilton, Madison & Jay 2003: Paper 10, 71–79.

11To block these claims Madison proposed the ‘filtering’ of the popular will as well as multiplying the sites of political power. Given the factual pluralism in a large republic,30 having a representative government in a large state would constitute, in itself, a guard against the ‘tyranny of the majority’ by effectively hindering the capacity of the masses to organize on a grand scale. The federal structure would further enhance this anti-majoritarian —but mostly anti-plebeian— feature of the large representative republic, by making it less likely for “a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project … to pervade the whole body of the Union.”31 This structural protection against the domination of the majority, however, does not apply to the domination coming from the powerful few, who do not experience the collective action problems of the masses and have plenty of material resources to corrupt public officials. To prevent corruption and domination within government, Madison’s mechanistic model of representative government solely relied on the division of functions proposed by Montesquieu. The most effective way to counteract power was by giving officials of different departments the necessary “constitutional means and personal motives to resist encroachment of the others.”32

  • 33 One out of every 13 African Americans has lost their right to vote due to felony disenfranchisement (...)
  • 34 For the arbitrariness of rules, see Kennedy 1976.
  • 35 See e.g., Hayek 1960; Rawls 1999.

12Even if the liberal interpretation of rights as property and the procedural solutions to tyranny and corruption that derived from the doctrine of separation of powers have become the standard for determining if a state is a proper democracy with ‘rule of law,’ the recognition of systemic corruption and the increasing legal oligarchization of power in society demands a departure from the mainstream. It is necessary to break away from the egalitarian fantasy on which this model is based, as well as from formal and procedural approaches that tend to hide material inequalities from legal analysis. We currently lack the proper tools to recognize and remedy structural forms of domination. For example, despite their formal equal status, Black Americans are two times more likely to be stopped by police, six times more likely to serve jail time and be sentenced to mandatory minimums for non-violent offenses, and four times more likely to lose their voting rights.33 Therefore, even if they formally have equal rights on a par with white Americans, their oppression, allowed and enabled by legal regulations (or the lack thereof) and adjudications, denies this equality. The same could be said regarding the status of women, gender and ethnic minorities, and the working classes, whose exclusion and exploitation has been systematically enabled by the law or its absence.34 Is this inability of the liberal lens, with its focus on formal equality and procedures over relations of power and the unequal application of the law, that demands a new material approach to the study of constitutions as organizations of power that tend to create and reproduce economic and social hierarchies. Even if some contemporary liberal theory certainly tries to address and redress socioeconomic inequality, propositions fall short of amending the basis of liberal constitutionalism: the sacredness of private property, the exclusively representative nature of government, and a state that needs to be impartial and neutral to guarantee equal rights to all.35

2 Intellectual foundations of material constitutionalism

  • 36 Machiavelli’s main source was Lucretius’ On the Nature of Things. There is also a utopian materiali (...)

13Different from the idealism, formalism, and proceduralism of the elitist strand of constitutional thought, plebeian interpretations of the republican order are realist and materialist. The basic tenants of material constitutionalism are found in plebeian republican thinkers who proposed to institutionally empower the common people to effectively control the ruling elites. Commenced by Machiavelli, who was influenced by the theory of atomic motion proposed by Epicurean philosophy,36 this strand of thought sees conflict as productive of liberty and seeks to justify on republican grounds the active participation of the organized many in the governing structure as necessary for keeping the republic free from oligarchic domination. From Machiavelli’s perspective, society is seen not as a community of equal property owners but as divided between the powerful few, who own most of the property, and the common people, who own comparatively very little. Based on this division, the design of the political order includes institutions to allow both a selected elite to rule within limits and to enable the common people to push back against the inevitable domination that eventually comes from the governing actions taken by the few. Recognizing the asymmetry of power between the few and the many, and the oligarchic tendency that comes from elite power, plebeian mixed constitutions set up popular counterpower institutions to resist the overreach of the few. Constitutional frameworks today contain nothing of the sort and therefore have left the many vulnerable to oligarchic domination.

  • 37 Machiavelli 1989: III.8.
  • 38 Machiavelli 1989, III.8.

14For Machiavelli, the corrupting process of oligarchization does not begin in the masses (governed in part by the unavoidable egoistic tendencies of individuals) but in the legal form restraining individual interest, as well as in the procedures by which power is allocated. Individual interest is a force permanently trying to unduly influence government but only succeeding, and thus effectively corrupting the republic, if laws and procedures are already flawed, allowing for inequality and undue influence. According to Machiavelli, “an evil-disposed citizen cannot effect any changes for the worse in a republic, unless it be already corrupt.”37 Machiavelli identifies two types of corrupting norms promoting two forms of evil: license and socioeconomic inequality. Regarding limits to individual action, he argues that just as good, disciplined soldiers become rowdy through the lifting of restraints to their behaviour, the general corruption of mores is allowed to begin when “the laws that restrained the citizens… were changed according as the citizens from one day to another became more and more corrupt.”38

  • 39 Lobbying Disclosure Act, S.1060, 104th Cong. (1995) (enacted). https://www.congress.gov/bill/104th- (...)
  • 40 Thompson 2005: 1037; Thompson 1995.
  • 41 Even if regulating lobbying allows for more transparency, it does not protect us from its perniciou (...)

15Even if one might not agree with the imposition of strict moral codes to avoid corruption, Machiavelli’s insight into how the law adapts to corrupt behaviour is still sound. The legalization of lobbying in the Unites States in 1995, via a reinterpretation of the First Amendment right “to petition the Government for a redress of grievances,” is a clear example of this accommodation. The Lobbying Disclosure Act39 came to regulate the already existing undue influences on government officials, without questioning the corrupting influence that lobbying has on legislation and public policy. The $3.47 billion dollars spent on lobbyists in 2019 to influence public policy did not only give advantage to those who could afford it, but also generated what Dennis Thompson calls institutional corruption, a “condition in which private interests distort public purposes by influencing the government in disregard of the democratic process.”40 Even if approaching representatives to individually ‘lobby’ for redress is a constitutional right, the regulation of special interest groups41 and the industry built around them to pressure the different branches of government to pursue specific paths of action clearly enables the oligarchization of power instead of combating it. Only those groups with enough resources to hire professional lobbyists —who already have special access to government officials— will get their demands met at the detriment of everybody else. In this way, systemic corruption creeps in when corrupt practices, seen as inevitable, are normalized, legalized, and finally built into the system, further eroding the juridical limits that protect the democratic republic from oligarchic takeover.

  • 42 Machiavelli 1989: I.55. For further analysis of the relation between inequality and constitutions i (...)
  • 43 Machiavelli 1989: I.55.
  • 44 Machiavelli 1989: III.27.
  • 45 Machiavelli 1989: I.1.
  • 46 Even though Machiavelli refers to German citizens, who if they get gentlemen “into their hands, the (...)

16In addition to promoting moral license and undermining civic virtue, Machiavelli argues law plays a key role in allowing for inequality, which ultimately makes the protection of liberty and the republican project impossible. Because republics need relative equality to exist,42 if laws allow for the accumulation of wealth in the hands of a few and to the destitution of the majority, the gradual transition from a good government into a corrupt one is inevitable. For Machiavelli, lords “who without working live in luxury on the returns from their landed possessions” are dangerous for any republic; they are the beginners of “corruption and the causes of all evil.”43 Bad laws enable undue influence on government from “fatal families” as well as the division of society into factions that “will strive by every means of corruption to secure friends and supporters” in order to satisfy their interests.44 Good laws, on the other hand, establish the necessity and duty to create virtuous citizens and make sure the influence of wealth “is kept within proper limits”45 by prohibiting the legal ability to command enormous fortunes, estates, and subjects.46 Anti-oligarchic laws —setting limits to the command of wealth and patronage, such as the imposition of a wealth tax and anti-trust laws— are thus essential anti-corruption legal provisions needed to preserve a good constitutional form.

  • 47 Condorcet 2007a: 199.
  • 48 Machiavelli 1989: I.18.
  • 49 Condorcet, Lettre d’un Théologien, cited in Rowe 1984: 21.
  • 50 Rowe 1984: 30.

17Machiavelli’s contribution to materialist constitutional thought was revisited in the 18th century, within a critical approach to the American constitution coming from the revolutionary experience in France. The strongest critic in the Girondin camp was the Marquis of Condorcet who argued that the system of separation of powers put in place in America was a complicated machine that only served to conceal a parallel ruling system based on “intrigue, corruption and indifference.”47 Following Machiavelli, for whom corruption is enabled by the methods of selection and decision-making,48 Condorcet criticized the doctrine of separation of powers and its proceduralism, and rejected the constitutional framework put in place in America, as insufficient for controlling corruption and guaranteeing liberty. According to Condorcet, the new American constitution, which chose “identity of interests rather than equality of rights” as its organizing principle49 —relying on the ambition of politicians to check one another rather than on the active control exercised by the people, and enshrining the separation of powers as the best design to keep the republic uncorrupted— was unlikely to serve as a real bulwark­ for liberty. While embracing interest over equality of rights would increase rather than ameliorate ‘artificial’ inequalities and the forms of domination they reproduce,50 Condorcet criticized the system of separation of powers because it “disfigured” the simplicity of constitutions. Separation of powers would not only be unsuccessful in keeping corruption at bay, but it would also allow for its concealment and reproduction.

  • 51 Condorcet 2007a: 199.

Experience everywhere has proved that these complicated machines destroyed themselves, or that another system emerges alongside the legal one, based on intrigue, corruption and indifference; that, in a sense, there are two constitutions, one legal and public but existing only in the law books, and the other secret but real, resulting from a tacit agreement between the established powers.51

  • 52 Condorcet 2007b: Letter Three, 322. For further analysis of Condorcet’s critique of the American Co (...)
  • 53 For a discussion on the difference between separation of powers and functions, see Pasquino 2009.
  • 54 Condorcet 2007a: 199.

18Separation of powers is thus not only an inadequate framework for keeping corruption in check, but serves to obscure the actual domination being exerted “off the books” through the actual collusion of representative institutions against equal liberty. Without a popular censorial power making sure elites are not self-serving, the American Constitution put “the fate of the State dependent on the degree of stubbornness or corruption in each branch.”52 For Condorcet, this separation of powers does not provide an adequate mechanism for maintaining liberty. He argues that seeing the executive, legislative, and judicial powers as independent forces that, by seeking their own interest, balance and regulate one another against the encroachment of liberty, denies the possibility of domination happening despite this formal division of government functions.53 He questions, “What becomes of public freedom if, instead of counterbalancing one another, these powers unite to attack it?”54

  • 55 Condorcet 2007a: 190

19As an alternative to the system of representative government with separation of powers, Condorcet proposed a mixed constitution in which both representative bodies and the people themselves could directly exercise political power; representatives would govern, and the people, assembled at the local level, would retain the power to initiate and veto legislation and even amend the constitution. While the U.S. Constitution gave citizens the individual right “to petition the Government for a redress of grievances,” without providing any enforcement mechanism to see that petitions are taken into proper account in governmental action, Condorcet’s ‘popular branch’ constituted an institutionalized ‘collective protest’ popular power aimed both at electing the members of government and censoring their decisions. His constitutional project, Le Girondine (1793), which was never implemented, established a network of “primary assemblies” of between 450 and 900 citizens in every district, alongside representative government. Building on already existing popular organizations as a springboard for radical change, his constitutional blueprint sought to formalize the “partial, spontaneous protests and private voluntary gatherings” that arose with the revolution, and give them “legally established procedures, [to] carry out precisely determined functions.”55

  • 56 Marx 1841: 31.
  • 57 Marx 1841: 62.
  • 58 Marx 1841: 26. Leszek Kolakowski argues Marx is committed to the Epicurean doctrine of the free sub (...)

20This plebeian constitutional thought re-emerged half a century later as philosophical critique in the work of Karl Marx, who wrote his doctoral dissertation on Epicurean philosophy and proposed a material constitution as the only free democratic order. According to Epicurus’s atomic theory in which atoms are the fundamental particle —never extinguished but rather transformed—, there are three types of movement due to weight (falling in a straight line), repulsion, and swerving. While the first two movements caused by weight and repulsion are materially determined, Epicurus argued that the spontaneous deviation from the pattern, the slight movement away from path dependency, remains indeterminate, without causation, and thus free. The realization of the atom happens when “all relation to something else is negated and motion is established as self-determination.”56 It is this declination as a form of self-conciseness and realization that makes possible complexity and new patterns arising independently from the existing order. Epicurus is therefore, for Marx, the first to theorize the scientific origin of freedom through a “natural science of self-consciousness”57 that aims at escaping necessity.58

  • 59 Lucretius 2001: 15.
  • 60 Marx 1975: Critique of Hegel’s Doctrine of the State, 88.

21The small changes that open the possibility for a swerve at the systemic level are enabled by man-made “accidents” such as “slavery, poverty and wealth, freedom, war, [and] concord.”59 Therefore, human declinations are enabled by changes in the artificial environment, which allow for recognizing the gap between the abstract order and the material experience, opening the door for self-consciousness, the breaking away from current material patterns and their determinism, and the creation of new patterns that can give way to independent orders as new sources of regularity in movement. Constitutional orders are sources of regularity created from a form of social consciousness, and are therefore the juridical expression of the self-reflection of a society at a given point, a particular formalization of “socialized man”60 that codifies patterns of interaction that have become self-determining and self-reinforcing. Like every other established regularity, constitutions are vulnerable to becoming formal straitjackets, far removed from material reality and oblivious to the swerving energy building up within them.

  • 61 Marx 1975: Critique of Hegel’s Doctrine of the State, 75.
  • 62 Marx 1975: Critique of Hegel’s Doctrine of the State, 88. While Livingston and Benton translate “ma (...)

22Criticizing Hegel’s formalistic theory of the constitution based on abstract logic, Marx makes the crucial distinction between the political constitution, based on a formal principle, born out of abstraction and guided by “a pre-existing system of thought,” and the material constitution, based on a material principle, emerging from material conditions and life experiences. The ‘good’ constitution is the one in which the political and material are the same. While “a constitution produced by past consciousness can become an oppressive shackle for a consciousness which has progressed,” for Marx it is possible to create a constitutional order that could adapt to swerves, having within itself “the property and principle of advancing in step with consciousness; i.e. advancing in step with real human beings —which is only possible when ‘man’ has become the principle of the constitution.”61 The only non-oppressive ‘true’ constitution is thus a democracy, in which “the formal principle is simultaneously the material principle.”62

  • 63 Marx 1975: Critique of Hegel’s Doctrine of the State, 87.
  • 64 Marx 1975: Critique of Hegel’s Doctrine of the State, 87.
  • 65 Marx 1975: Critique of Hegel’s Doctrine of the State, 87.

23Democracy is for Marx “both form and content,” a constitution founded on “real human beings” —and not on their essence or abstraction— and created by the people themselves.63 The constitution of a democracy “is in appearance what it is in reality: the free creation of man.”64 While in “other political forms man has only legal existence,” in democracy the constitutional framework is only one form of “self-determination of the people,” emanating from the people. The only material constitution, in which the formal structure is a true expression of the people, is a democracy. All other types of constitutional frameworks based on principles and abstractions are by design “oppressive shackles” that make humans subordinate to a rational logic that is external to their material experience. For Marx, the “highest summit” of political constitutions is the modern bourgeois republic, founded on the principle and protection of private property.65

3 Towards a new material approach to constitutions

  • 66 Marx 1978: 187.
  • 67 Marx 1978 187.
  • 68 Marx 1978: 187.
  • 69 Marx 1978: 188.
  • 70 Marx 1978: 191.

24Since the birth of modern capital and representative democracy, there has been an acceleration of a double movement: on the one hand, the emancipation of private property from the purview of the State, and on the other, the detachment of the State from the community —becoming “a separate entity, beside and outside civil society”— and its attachment to oligarchs, being “purchased gradually by the owners of property.”66 By design, the raison d’etre of the liberal state is not the wellbeing of the human community but the security of property as an abstraction—the preservation of the contractual relations that reproduce the existing hierarchical society, enabling “the individuals of a ruling class [to] assert their common interests.”67 In the liberal constitution, the ideology of private property becomes, according to Marx, internalized, penetrating “into the consciousness of the normal man” and subverting our understanding of justice, which is “reduced to the actual laws” that are made to preserve contractual relations of domination.68 Legal abstractions become internalized, skewing our sense of justice, not only because of the imposition of civil laws that are developed “simultaneously with private property” but also due to the concurrent “disintegration of the natural community” due to trade. It is within this economic transformation and the rise of the new commercial elite that civil laws were “raised to authority” and the “existing property relationships [were] declared to be the result of the general will.”69 Moreover, the separation of the political constitution and its laws from the material reality allows not only for a person to “have a legal title to a thing without really having a thing,” but also the inversion of human priorities. While before capitalism “the production of material life” was considered a “subordinate mode of self-activity,” material life now appears as the final cause of human activity, and human labour as its means.70

  • 71 Approaching the material constitution from an explanatory rather than a normative perspective, Gold (...)

25From the perspective of our 21st century society, in which production, trade, and economic growth have effectively become ends in themselves, and human labour and intellectual activity are just means to the reproduction of mere life and the endless accumulation of property for some, it seems crucial to pick up the thread of material constitutional thought to help unravel the patterns of domination weaved into the rule of law. However, after 200 years of liberal hegemony and its paradigm of formal equality, exiting its analytical bounds has been challenging.71 To be able to detect systemic corruption and ‘see’ structural domination, I propose a material constitutional lens that builds on Machiavelli, Condorcet, and Marx, and aims at accounting for the influence social and economic inequalities have on political power and the law. Material constitutionalism is therefore premised on the idea that the organization of political power cannot be analysed without considering socioeconomic power structures and the ways in which states enable some kinds of actions while disabling others, targeting specific groups through the criminalization and legalization of certain actions, as well as through the selective enforcement of rules and penalties that appear as impartial. Therefore, constitutions and the rights they contain need to be studied as organizations of power, considering not only the written text and its jurisprudence, basic political and social institutions, and the rules and procedures enabling the exercise of power, but also the social effects of the constitutional framework in terms of socioeconomic inequality, as well as the class, racial, religious, and gender disparities in the application of the law. This new approach to the study of constitutions, which brings together law, philosophy, politics, and economics, facilitates a dialectical analysis of the relation between power and the law —that is, between the material conditions of society and the legal, juridical, and formal provisions that (allegedly) regulate them.

  • 72 Lüth case, BverfGE 7, 198 (1958) B.II.1. It endorsed the application of constitutional norms to pri (...)
  • 73 Bomhoff 2013: 74.
  • 74 1949 German Constitution, Art. 1.1 “Human dignity shall be inviolable. To respect and protect it sh (...)
  • 75 Schmitt 2008: 155.
  • 76 For example, see sentencing disparity on the application of drug laws that impose harsher penalties (...)
  • 77 See, for example, the constitutional protection afforded to corporate political speech in Citizens (...)
  • 78 For the role of lawyers and judges in legalizing relations favourable to the wealthy and their corp (...)

26This material approach should not be mistaken with the school of constitutional interpretation that developed in Germany after the 1958 Lüth case, which expanded the sphere of constitutional rights into the relation among individuals.72 The ‘material’ aspect of German constitutionalism refers not to the relation between power and law, but to an “expression of ‘the substantive’ in law,”73 as a system of values centred on the principle of human dignity.74 The materialist constitutionalism I propose here, on the contrary, does not have a pre-existing ethical “substance” or “spirit.”75 Rather, it is premised on the recognition that norms develop from power relations, and that the legitimacy of law should be determined depending on the role it serves in the material conflict between domination and emancipation in society. Neither law nor rights nor procedures are ‘good’ in themselves or guarantee by themselves a society in which everyone is equally free. There are laws that are never applied or that are applied to target a specific group;76 rights that are mere parchment barriers for the many and weapons for the already powerful few;77 and jurisprudence that validates unequal relations of power instead of dismantling existing relations of domination.78

  • 79 Identified as the principle of representative government for the first time by Condorcet. For an an (...)
  • 80 Rancière 1998: 101.
  • 81 For the positive effect that mechanisms of direct democracy have on equality, see Kramling 2022.

27To assess if a given institution, procedure, or law is ‘good’ and thus part of the normative framework of a free society, material constitutionalism considers not only the degree of conformity of institutions, procedures, and laws to the basic democratic principle of equal liberty,79 but also their effects in enabling emancipation and discouraging oppression on the ground. Political emancipation, which according to Jacques Rancière consists in the materialization of a logic of equality that is anti-hierarchical and conflictual,80 is inevitably self-emancipation; by defying the structures of oligarchic rule and appearing as a political actor, the plebeian people materially perform the logic of equality and their own emancipation.19 Consequently, emancipatory law not only favours socioeconomic equality but also empowers the common people, giving them decision-making prerogatives to become political actors —and not mere electors— within the democratic constitutional structure.81 Democratic, material constitutionalism imposes then an immanent normative referent for judging laws and institutions: their impact on enabling the (self)emancipation of the many and on disabling oligarchic domination. This new lens establishes a constitutional ideology that does not aim at neutrality but at redressing inequalities of power within society. A material approach to legality therefore would stand as an alternative, on the one hand, to Kelsenian legal positivism—which denies the political nature of constitutions and reduces their analysis to jurisprudence, excluding the application of law and its consequences in material terms— and on the other, to proceduralism—which masks the growing oligarchic influence on government that happens without a direct transgression of separation of powers and electoral rules. A material assessment of constitutions and structural forms of inequality would force us not only to study rules, procedures, and the courts but also to include their impact on power relations, as well as to engage in institutional innovation to give binding power to the common people so that they can effectively resist oligarchic domination.

  • 82 For a study of the territorial inequities in the enjoyment of the right to healthcare, see Ferraz 2 (...)

28There are currently very few constitutions in the world that partially aim at redressing material and political inequalities— and they do a rather poor job. The most emblematic examples of legal frameworks with justiciable socioeconomic rights are the constitutions of Brazil (1988), Colombia (1991), and South Africa (1996), which are part of a transformative constitutionalism that transcends formal equality and pushes for the materialization of basic rights such as healthcare and housing. However, despite the incorporation of these rights, their materialization has been slow and uneven since it is individuals, through the courts, who must demand that the State comply with its constitutional duty to guarantee them. As judges do not have the authority to decide on the budget, rights have only been guaranteed to the extent that is “reasonable,” which has meant that the rights of many people continue to be systematically negated.82 Separation of powers and the lack of an institutional authority to mandate and oversee structural change have proven to be insurmountable barriers to the lack of political will by governments with short-term goals driven by electoral cycles. More recent constitutional experiments in Venezuela (1999), Ecuador (2008), and Bolivia (2009) have gone further than justiciable social rights, building popular institutions and mechanisms of participation into their structures to materialize rights through the executive and legislative functions. However, their innovations have also failed to adequately guarantee rights because they have not effectively empowered the citizenry to autonomously participate in decision-making and control of government.

  • 83 UN Human Rights Report, 2019.
  • 84 Herrera 2018. For a critical analysis of the rights of nature and the extractivist state in Ecuador (...)
  • 85 Baer 2015.

29Venezuela incorporated a new basic institution, the Citizen Power —comprised of the offices of the People Defender, the General Prosecutor, and the General Comptroller of the Republic— aimed at guaranteeing rights, overseeing the correct application of the law, and investigating and punishing “actions that undermine public ethics and administrative morals” (art. 274). However, even if this Citizen Power was designed to be independent from the government, the current systematic denial of social rights —such as access to healthcare, adequate nutrition, and clean water— and the egregious crimes that have been perpetrated by security forces with impunity83 belie its declared autonomy. The Ecuadorian constitution also vowed to be participatory and gave citizens the right to “initiate, reform or repeal juridical norms” through a mechanism of indirect popular initiative that requires the gathering of signatures to introduce a proposal into the legislative debate (art. 61.3). However, this mechanism of popular participation has not allowed the common people to have real political power. To date, of the 21 indirect popular initiatives that managed to gather enough signatures to be considered by Congress, none have been approved with their original content.84 Finally, the Bolivian Constitution empowered local communities by granting rights to “participation and social control,” so residents could design and monitor public policies, and in this way push for the adequate materialization of basic rights in their communities (art. 241 & 242). However, these rights to participate and oversee government action remain largely unrealized, which has had a negative impact on the materialization of socioeconomic rights. As the case of the right to water shows, even if the MAS government has been progressively realizing this right since 2006, the lack of meaningful citizen participation in decision-making and accountability processes has resulted in great disparities. Notwithstanding the national increase in the access to clean water since the mid-2000s, from 71% of the population to 83%, the gains have been unequally distributed. Cochabamba, the epicentre of the 2000 water war —during which social movements demanded the “creation of public, democratic water utilities with citizen participation and community oversight,” but got instead only a few seats in the directory of the corrupt public water company— has had negligible improvements, with approximately half of its population still lacking access to water.85

  • 86 Condorcet (2007a: 204-205) also proposed a national council of overseers, a popular office of enfor (...)

30To be able to go beyond the constraints imposed by formal equality and the anti-majoritarian organization of power that has yielded societies with billionaires, opulence, and waste alongside growing ranks of oppressed groups living in precarity, it is necessary to intervene the basic structure to incorporate new institutions like Condorcet’s network of primary assemblies,86 as well as binding participatory mechanisms to force representative governments to adequately fulfil the rights of the most vulnerable and stop kicking the bucket down the electoral road. Politicians are not keen to spend their time in office investing in the long-term fulfilment of the rights of the most vulnerable, since it is unlikely that they will be able to reap the benefits in the next electoral cycle. Self-emancipation demands material and institutional resources, and a material lens forces us to reckon with the fact that socioeconomic rights cannot be divorced from political power. Having justiciable socioeconomic rights in the constitution is not enough to materialize them. It is necessary to think outside of the liberal constitutional box and pair these rights with direct democracy mechanisms to assure their adequate fulfilment and defence against oligarchic overreach.

4 Conclusion

31If we follow Machiavelli and take as a premise that all constitutions and the laws they produce could tend to foster corruption, then we need to grapple with the relativity of the ‘rule of law,’ which both neoliberal and neorepublican thinkers argue is the mark of liberty. If corruption is the vehicle for oppression, and it originates not only in individuals but also in laws and the use of procedures, then the rule of law must not be necessarily understood as a source of liberty. Moreover, because laws can be written and used as tools for oppression, they appear at best as weak tools to combat corruption and at worst as instruments to uphold and reproduce domination instead of combating it. If one agrees that the minimal normative expectation of liberal democracies is that governments should advance the interests of the majority within constitutional safeguards, increasing income inequality and the relative impoverishment of most citizens should be seen as a clear sign of corruption. However, both inequality and corruption have been depoliticized; while inequality is seen as a natural and inevitable outcome of free market societies, corruption has been reduced to individual misconduct, which prevents us from fully capturing the systemic effects that inequality and corruption have on the enjoyment of individual and collective liberties.

32Analysing the constitution through a materialist lens that does not originate in a natural egalitarian fantasy, or in abstract original positions, where inequalities are obscured by veils of ignorance, but that rather begins with real existing inequalities and relations of domination that have endured despite formal equality, separation of powers, and transparency laws, seems necessary to correctly diagnose the oligarchic malaise that has taken over representatives institutions, distorting public purposes even in the most egalitarian democracies. The material lens opens a range of new institutional solutions to systemic corruption —from anti-oligarchic laws setting limits to wealth accumulation, to a national network of local assemblies with the power to monitor and direct representative government— as well as new normative grounds to justify the adequate fulfilment of new socioeconomic and political rights. Only by pushing the boundaries of the hegemonic liberal interpretation of rights and the doctrine of separation of powers, which has been disturbingly tolerant to extreme degrees of inequality, can constitutionalism contribute to reverting the process of oligarchization of power that transpires not only in conformity with legality but that is also enabled by it.

—Acknowledgements.— I am grateful for the support of the Marie Skłodowska-Curie Fellowship and the SA UK Bilateral Research Chair in Political Theory, Wits, and Cambridge.

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Notes

1 For an ‘elitist republican’ interpretation on the crisis of democracy, in which elites are the culprits of decay, see Levitsky and Ziblatt 2018.

2 Slobodian (2018) offers a Euro-centric, and therefore partial, historical account of neoliberalism, that misses its illiberal origins. Chile, under Pinochet, with the help of the so-called Chicago Boys, trained in the U.S. in the 1950s, is neoliberalism’s ground zero. See McClean 2017: ch. 10.

3 To the point that today it is considered legitimate that three individuals in the U.S. own more wealth than the bottom 50% of the population—while the wealth of the super-rich grew 6,000% since 1982, median household wealth went down 3% over the same period, and one out of five children currently lives in poverty in the richest country in the world. Collins 2018.

4 Vergara 2020.

5 An insight Robin (2017) has recently brought back to the political discussion: “The worst things that the US has done have always happened through American institutions and practices – not despite them.”

6 World Inequality Report 2022.

7 For an interpretation of the constitution as having both regulatory and constitutive rules, see Holmes 1988.

8 I follow Green 2016.

9 Locke 2003: 2.4.

10 Locke 2003: 2.5.

11 Power is a relational concept that denotes both “the state of having possibilities available and representing them as such.” Parietti 2022: 98.

12 Locke 2003: 5.26.

13 For an anti-egalitarian reading of Locke see Zucker 2000.

14 Cicero 1913: 2.73.

15 Locke 2003: 7.87.

16 Locke 2003: 19.226.

17 “A Declaration from the Poor Oppressed People of England” (1649). Less than one third of the land was considered part of the commons (Clark and Clark 2001).

18 UK Parliament, Enclosing the Land. https://www.parliament.uk/about/livingheritage/transformingsociety/towncountry/landscape/overview/enclosingland/

19 Montesquieu 1989: II.11, 6. Contrast this definition with ‘positive’ liberty as autonomy through direct legislation in ancient Athens.

20 Montesquieu 1989: II.11, 3.

21 Montesquieu 1989: II.11, 3.

22 Montesquieu 1989: I.2, 2.

23 Montesquieu 1989: II.11, 6.

24 See Manin 2010.

25 Montesquieu 1989: I.2, 2.

26 For a review of elections in history, theory, and current practice, see Landemore 2020: chapters 2 and 3.

27 Shay’s Rebellion (1786–87). See Nobles 2012.

28 Farrand 2008: 181.

29 74% of the framers were lenders of some sort, which puts the issue of debt and currency speculation at the top of the list of the interests that delegates aimed at protecting when negotiating constitutional provisions.

30 Olson 2012.

31 Hamilton, Madison & Jay 2003: Paper 10, 79.

32 Hamilton, Madison & Jay 2003: Paper 10, 71–79.

33 One out of every 13 African Americans has lost their right to vote due to felony disenfranchisement, compared to only one in every 56 non-black voters. Quigley 2016.

34 For the arbitrariness of rules, see Kennedy 1976.

35 See e.g., Hayek 1960; Rawls 1999.

36 Machiavelli’s main source was Lucretius’ On the Nature of Things. There is also a utopian materialist strand of thought of which Thomas More is the most prominent thinker.

37 Machiavelli 1989: III.8.

38 Machiavelli 1989, III.8.

39 Lobbying Disclosure Act, S.1060, 104th Cong. (1995) (enacted). https://www.congress.gov/bill/104th-congress/senate-bill/1060/text.

40 Thompson 2005: 1037; Thompson 1995.

41 Even if regulating lobbying allows for more transparency, it does not protect us from its pernicious effects.

42 Machiavelli 1989: I.55. For further analysis of the relation between inequality and constitutions in Machiavelli, see McCormick 2013.

43 Machiavelli 1989: I.55.

44 Machiavelli 1989: III.27.

45 Machiavelli 1989: I.1.

46 Even though Machiavelli refers to German citizens, who if they get gentlemen “into their hands, they put them to death,” he does not want to bring equality by murdering the rich, but by adopting laws to curb inequality.

47 Condorcet 2007a: 199.

48 Machiavelli 1989: I.18.

49 Condorcet, Lettre d’un Théologien, cited in Rowe 1984: 21.

50 Rowe 1984: 30.

51 Condorcet 2007a: 199.

52 Condorcet 2007b: Letter Three, 322. For further analysis of Condorcet’s critique of the American Constitution, see Mintz 1991.

53 For a discussion on the difference between separation of powers and functions, see Pasquino 2009.

54 Condorcet 2007a: 199.

55 Condorcet 2007a: 190

56 Marx 1841: 31.

57 Marx 1841: 62.

58 Marx 1841: 26. Leszek Kolakowski argues Marx is committed to the Epicurean doctrine of the free subject as containing “the germ” of the concept of praxis. Marx 1978: 104. For further discussion about the reception of Marx’s epicureanism, see Stanley 1995.

59 Lucretius 2001: 15.

60 Marx 1975: Critique of Hegel’s Doctrine of the State, 88.

61 Marx 1975: Critique of Hegel’s Doctrine of the State, 75.

62 Marx 1975: Critique of Hegel’s Doctrine of the State, 88. While Livingston and Benton translate “materielle” as “substantive” I prefer to translate it as “material” since it is more in tune with the Epicurean language. Translators for the Cambridge University Press 1970 edition, Annette Jolin and Joseph O’Malley, also chose material over substantive.

63 Marx 1975: Critique of Hegel’s Doctrine of the State, 87.

64 Marx 1975: Critique of Hegel’s Doctrine of the State, 87.

65 Marx 1975: Critique of Hegel’s Doctrine of the State, 87.

66 Marx 1978: 187.

67 Marx 1978 187.

68 Marx 1978: 187.

69 Marx 1978: 188.

70 Marx 1978: 191.

71 Approaching the material constitution from an explanatory rather than a normative perspective, Goldoni and Wilkinson (2018) define the material constitution as comprised of four basic elements: political unity, a set of institutions, social relations, and fundamental political objectives. In their account, power relations between the few and the many, capital and labour, which determines the design and use of political institutions, are replaced by “a plurality of subjects whose positions are conditioned but not determined by already established relations.” They acknowledge that the strength of the material constitution rests on the social “support for the political aims (or even finality) of a regime,” but refrain from challenging the basic institutions that have allowed for oligarchic domination, or from proposing to institutionally empower the common people to decide, collectively, on those political aims. Their replacement of class struggle with agonistic pluralism, and the negation of the factual dominance of material conditions over representative politics, obscures factual oligarchy and overestimates the political power individuals have to exert changes to the superstructure. Individuals today are not strictly speaking political actors able to decide on “the formation and then preservation of a particular political economy, as well as in fomenting change through putting pressure on reforming the political-economic structure”; structural oppression makes individuals powerless to resist domination and exert changes to the legal structure if collective power is not properly institutionalized.

72 Lüth case, BverfGE 7, 198 (1958) B.II.1. It endorsed the application of constitutional norms to private law, which established the foundation of the “horizontal effect” of constitutional law, a strategy that has proven successful in accounting for rights violations coming from private agents as well as the state. See Gardbaum 2003; Tushnet 2003.

73 Bomhoff 2013: 74.

74 1949 German Constitution, Art. 1.1 “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”

75 Schmitt 2008: 155.

76 For example, see sentencing disparity on the application of drug laws that impose harsher penalties on cheap substances (American Civil Liberties Union 2006).

77 See, for example, the constitutional protection afforded to corporate political speech in Citizens United v. Federal Election Commission (2010).

78 For the role of lawyers and judges in legalizing relations favourable to the wealthy and their corporations, see Pistor 2019.

79 Identified as the principle of representative government for the first time by Condorcet. For an analysis of the principle, see Urbinati 2008.

80 Rancière 1998: 101.

81 For the positive effect that mechanisms of direct democracy have on equality, see Kramling 2022.

82 For a study of the territorial inequities in the enjoyment of the right to healthcare, see Ferraz 2020. For an overview of law, policy, and implementation of a consistently underfunded right to adequate housing in South Africa, see Dawson and McLaren 2014.

83 UN Human Rights Report, 2019.

84 Herrera 2018. For a critical analysis of the rights of nature and the extractivist state in Ecuador see Vergara 2022.

85 Baer 2015.

86 Condorcet (2007a: 204-205) also proposed a national council of overseers, a popular office of enforcement and surveillance.

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References

Electronic reference

Camila Vergara, “Towards material anti-oligarchic constitutionalism”Revus [Online], 46 | 2022, Online since 16 April 2022, connection on 25 May 2024. URL: http://journals.openedition.org/revus/8133; DOI: https://doi.org/10.4000/revus.8133

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About the author

Camila Vergara

Marie Skłodowska-Curie Fellow, University of Cambridge (UK).

Address: 1 Artesian Road - Flat 15 - W2 5DL London – United Kingdom.

E-mail: cv370 [at] cam.ac.uk

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