New constitutionalism
This article has multiple issues. Please help improve it or discuss these issues on the talk page. (Learn how and when to remove these template messages)
|
New constitutionalism is derived from the classical neo-liberalism framework and represents a set of political policies that promote a new global order.[1] The goal of new constitutionalism is to separate the democratic and economic practices by shifting economic aims from the regional and national level to the global level through constitutional framework.[2] The purpose of this shift is to create global supremacy and promote a free capitalist system.[1]
Central ideas of neoliberalism have been advanced to create policies and practices to achieve global governance.[2] New constitutionalism provides power to the private realm and limits power of state governance and public corporations.[1] The transferring of power creates an informal self-regulatory setting allowing for the dismissal of public scrutiny and transparency.[3] New constitutionalism has reshaped the structure of control to allow “locking in” mechanisms to occur to prevent intervention from the democratic realm and to enhance economic objectives.[3] This protects markets from regional interference and allows global influence in order to promote imperialism.[4]
The development of new constitutionalism is the result of
New constitutionalism as a political order emerged in the latter half of the 20th century and the term was coined by academic
Origins
New constitutionalism formed in the 1980s as the result of a growing world order and the “worldwide market revolution.”[3] The end of the Cold War represented an ideological shift and the need for transformation.[3] This shift was reiterated by Prime Minister Margaret Thatcher declaring the depletion of socialism and the rise of conservatism and liberalism.[3] As society progressed it allowed for the evolution of capital mobility, transnational corporation and the expansion of the world market.[3] The Great Depression and the aftermath of World War II reflected the need for reform.[2] Reform would redirect economic and political practices, ensuring benefits for all through the creation of global institutions.[6]
Neo-liberal supremacy through the dominance of the
Framework
There are four main policies to define new constitutionalism.[3] The first represents the development of a constitutional structure for the global market that dictates the public, private and international powers.[3] These international economic agreements or “constitutions” resemble political constitutions and thus ensure sovereignty.[4] The economic power is being shifted from the national to the international as well as from the public to the private to provide growth and sustainability.[4]
Second is the separation of economic policies from domestic influence.[3] This allows for capitalist markets to grow as well as extending the commodity form and the market forces.[3] This separation insulates economic policies from governing regulatory powers as well as the public demand for transparency.[4] Economic liberation is usually accompanied by political backlash, by disconnecting these two dynamisms suppresses democratic involvement.[2] The World Bank advocates for the restriction of democratic participation and limitations imposed in the economic realm by creating a hierarchical system of representation.[2]
Thirdly is creating “locking in” mechanisms which incorporate; laws, rules, regulations, procedures and institutions.[3] This mechanism puts limitations on legislative and policy autonomy.[2] Agreements are formulated to “lock in” neoliberal content through legal guarantees and sanctions.[2] These agreements are difficult, even impossible to change which makes economic policies autonomous.[4]
Lastly this process diminished the need for formal accountability.[3] New constitutionalism has created a flexible system giving privileges to international corporations and private entities creating a “double” legal standard.[3] This concept diminished the “watchdog” and gives the flexibility for self-regulation.[3] This instrument is based on the international gold standard of the nineteenth century which gave rights to investor to avoid certain jurisdictions.[2] Permitting deregulation of financial services and trade investment avoids popular pressures and limits the need for transparency.[7] Minimizing liability and ensuring private authority the economic sector becomes more efficient, functional and practical.[9]
Institutions
At the global and regional level institutions are implementing the new constitutionalism framework to advance global governance by upholding the rights of private corporations and promoting a free capitalist society.[4] These institutions policies will ensure economic growth at the global level.[10]
Global
The World Trade Organization (WTO) is a prominent figure in governing the global economy.[4] Formally it was the responsibility of General Agreement of Tariffs and Trade built on neoliberal principles but lacked the greater power adapted through new constitutionalism.[4] The World Trade Organization represents a governing global entity which has adapted to the principles of new constitutionalism.[4] The WTO main purpose is to limit national interference in the global market and challenge any nation-state regulations that could be detrimental to the economy.[4] Any economic alternatives that are proposed by nations can be discredited by the WTO as well as restricting governments ability to implement policy in international jurisdiction.[4] The WTO represents the freedom of markets and allowing investors to capitalize in a world economy, by doing so provides protection to the private sector.[4] Stephen McBride describes the World Trade Organization as having “quasi-judicial and quasi-constitutional aura.”[4] The judicial and constitutional supremacy highlights the difficulty in challenging the organizations because of lock in mechanisms.[4]
Regional
The North American Free Trade Agreement (NAFTA) is a considered a regional governing entity that encompasses the principles of new constitutionalism.[4] President Ronald Reagan referred to the North American Free Trade Agreement as a “new economic constitution.”[4] Constitution because the agreement provided restrictions on government intrusion, rights to certain actors and enforcement mechanisms.[4] The binding agreement afforded rights to both foreign and domestic investor to protect the interests of private capital and corporations.[10] By limiting government powers the agreement locked in private interests and reduced governments ability to expand or restore public services in free trade.[10]
Criticisms
Focus at the global level has resulted in hostility between the public and private realms within
New constitutionalism favours the elitists providing preferential treatment and widening the social gap.[7] International financial institutions, investors and bond-raters are holding higher positions of authority than governments or nation-states furthering global supremacy.[2] There is an urgent need for surveillance, policy making power, regulations and transparency economic outcomes are not solely focused on monetary gain but humanitarian concerns as well.[6] The absence of accountability and democratic authority has led many countries to depart from the constitutional framework and reclaim their sovereignty as independent nations.[7] Australia has begun to constrain the advancements of new constitutionalism while many South America states have begun to exit the global regime completely.[7] Canada and the United States have begun to form provisions to improve the democratic power within the global order and no longer allow for their governments to be immobilized.[7]
Notes
- ^ S2CID 55584285.
- ^ ISSN 1323-9104.
- ^ ISBN 978-1-107-05369-4.
- ^ ISBN 978-1-4426-0365-3.
- JSTOR 20434076.
- ^ ISBN 978-1-107-05369-4.
- ^ a b c d e f g h i Cutler, A. Claire. (2016) "Transformations in Statehood, the Investor-State Regime, and the New Constitutionalism." Indiana Journal of Global Legal Studies 23, no. 1: 95-125.
- ISBN 978-1-107-05369-4.
- ^ ISBN 978-1-4426-0365-3
- ^ ISBN 978-1-107-05369-4