(Dis)embodiments of Constitutional Authorship: Global Tax Competition and the Crisis of Constitutional Democracy

Article excerpt

ABSTRACT

The initial onset of globalization generated optimism regarding the possible creation of a global legal universe capable of transcending the borders of demos-centered constitutional states. This optimism, however, remains unfulfilled. Constitutional democracy, meanwhile, as currently understood, is undergoing an institutional self-transformation. This Article rethinks the constitutional order in the age of globalization. The approach detailed here addresses legal globalization by inspecting the constitutional welfare state in light of contemporary global tax competition. This argument emphasizes that globalization in general, and global tax competition in particular, exposes the limits of the constitutional state's governing ability. Specifically, the institutional responses to global tax competition from constitutional states reveal the existential challenge to constitutional democracy created by globalization: the undermining of the legitimacy of constitutional order by the dissolution of "constitutional authorship." A closer inspection shows that intrinsic to those institutional responses is the common feature that the relationship between the governing authority and its citizens in these strategies inevitably dissolves. The resulting disembodiment of "constitutional authorship" has led to the current existential crisis of constitutional democracy.

I. INTRODUCTION

Globalization blurs the internal/external distinction; foreign affairs and domestic policies are now inextricably intertwined. This blurring not only necessitates international cooperation to deal with transboundary regulatory issues, but it also exposes the limits of the constitutional state's governing ability over traditional domestic affairs.1 As globalization continues to play a prominent role in the world economy, the question of the purpose and the fate of the modern state becomes an increasingly debated issue for academics and the media.2

Paralleling this debate is a new discourse on the prospect of constitutional democracy in the global era. At its core, this new discourse envisions a form of constitutional democracy beyond the nation-state. Talks of "transnational constitutionalism," "global constitutionalism," and the "constitutionalization of international law"-each of which seeks to tame Hobbesian international relations through constitutionalism-have spread through academic circles.3 The relationship between constitutional states and international regulatory regimes has thus deviated from the traditional relationship between them; this new system is moving toward "a global administrative space,"4 from which a new global constitutional democracy best characterized as "legal pluralism" and "constitutional pluralism,"5 "multilevel governance,"6 "societal constitutionalism,"7 or "transnational government networks" may emerge.8 Viewed through the lens of transnational constitutional democracy, the issues involving the role of the modern state and its fate are irrelevant. Rather, the future of constitutional democracy, not the state, is at stake in the global era.

Charges of "legitimacy deficit" or "democracy deficit," however, continue to haunt those transnational experiments on constitutional democracy.9 Addressing these charges, some scholars argue that these "deficits" are simply the beast of nationalism hiding in a democratic disguise.10 Once unmoored from specific democratic states, these commenters believe that the ideas of constitutional democracy can be projected onto a supranational, even global, legal universe.11 Other scholars address these concerns in a functional tone.12 On this view, the sole point of import here is whether an envisioned transnational constitutional polity can solve those issues that the state fails to address and thus undermine its legitimacy. Once policy challenges are resolved in the transnational experiments on constitutional democracy, the legitimacy questions surrounding this issue will dissolve. …