Marx and Critical Constitutional Theory

This chapter argues that Marx proffers important resources to develop a critical constitutional theory that questions the fetishism and mystifications of modern constitutionalism and whose goal is to deepen democracy. In particular, it argues that Marx’s critical theory of constitutional law is political, social, socialist, and anti-systemic. The chapter is organised as follows. The first section highlights Marx’s attention to the antinomy of constitutionalism in his engagement with Hegel’s theory of the state. In the course of this engagement, Marx contrasts the political constitution (both monarchical and republican) with ‘democracy’ in order to foreground the constitution’s limitations and point the way toward the resolution of the paradox by centering the people’s constituent power and subjecting the constitution to popular will at all times. The second section examines alienation and the abstraction of popular sovereignty under a political constitution that emanates from the separation of state and ‘civil society’. The third section argues that the limitations and mystifications of ‘the paradox of constitutionalism’ are rooted in the political (or partial) revolution that generates the constitution. Instead of a class-neutral constituent power leading a political revolution, Marx envisions a social revolution in which the proletariat is the constituent power. In order to illustrate the false promises of political revolutions, the fourth and fifth sections focus on the failings of constituent assemblies. These constitution-making assemblies do not live up to the ideal of constituent power, either because their politics is non-revolutionary or because the pre-revolutionary constitutional order imposes constraints on their work to prevent revolutionary rupture. The sixth section highlights Marx’s analysis of the incoherence and contradictions of the political revolution’s constitution. The fact that the constitution is ultimately based on modus vivendi because it accommodates competing interest and embodies a class compromise generates this incoherence. The seventh section returns to the paradox of constitutionalism in order to highlight Marx’s conclusion, following his analysis of bourgeois revolutionary constitutions, that the fundamental contradiction consists in the blockage of social emancipation, and that the constitutional incoherence and instability are better understood as emanating from the unresolved paradox of constitutionalism. The eighth (and penultimate) section explores elements of an alternative radical constitutionalism that Marx identifies in the experience of the Paris Commune in order to chart a path beyond the alternatives of despotism and class rule