14. Liberalism was consolidated as an antagonist of totalitarianism between the 1930s and the 1950s and, as a result, was associated with ‘liberal democracy’ and emerged as the constitutive ideology of the West (D Bell 698). In particular, pro-collectivist and Keynesian liberal ideas almost monopolized Western societies in the first half of the twentieth century, until the late 1940s, when classical laissez-faire liberalism was reconceptualized and reformulated as neoliberalism (Turner 68). Two main strands can be identified. According to the first strand—promoted by the so-called ‘Mount Pelerin society’ which was established in 1947 and led by the Austrian economist Friedrich von Hayek—any form of state planning, which was advocated by Keynesian liberals in the UK and New Deal progressivists in the US, is to be rejected as unfeasible and harmful to individual liberties (Turner 70). The exercise of government powers ought to be limited within the formal framework guaranteed by the rule of law: market is to operate above politics. A second strand of neoliberalism, developed in Germany under the label of ‘ordo-liberalism’, also rejected central planning, but at the same time believed in the necessity of some degree of government intervention which would ensure fair competition (Mudge 715–716). Law would thus ensure the separation between the economic sphere and the political sphere. Hayek, who was initially closer to ordo-liberalism and later moved towards a more radical free market-oriented line of thought, was a key theorist of neoliberalism. His philosophical mindset was inspired by a strong scepticism towards man’s ability to control or reshape society through reason, the belief in the spontaneous nature of social interactions (Kukathas 185), and a conceptualization of freedom in negative terms as ‘absence of coercion’ (Hayek 11). However, until the 1970s capitalism was, in a sense, tempered through the implementation of social policies and the creation of the welfare state (Judt 47). Ordo-liberal views influenced the development of European judicial review, because courts were supposed to uphold open and free market principles against state interference (Gerstenberg 221). However, the Kelsenian, centralized model of judicial review, with a constitutional court at the apex of the legal system, insisted that, in addition to this free market promoting tasks, the constitutional court would have the role of adapting the constitution to changing social values (Gerstenberg 222). Instead, the diffused model of judicial review of the US delegated to ordinary courts the power to declare a law unconstitutional (Stone Sweet 2770).
15. In the decades immediately after the Second World War, mostly in Europe, liberal constitutionalism was reinvented in an effort to reconcile, on the one hand, capitalism and democracy, and on the other, labour and capital (Bickerton 74–113). Moreover, liberal and Christian organizations, especially in France, West Germany, and Italy, often found some common ground, and many liberals shifted towards more conservative and clerical positions (Voegelin 508).
16. The sequence of economic crises between the mid-1960s and the 1970s turned neoliberalism into hegemonic thought in the Western world, as Keynesianism seemed unable to offer appropriate solutions (Mudge 709). As a result, neoliberalism—particularly Hayek’s approach, as well as the Chicago School of Economics—was very influential in both UK and US policy-making in the second half of the twentieth century, starting with the administrations of Margaret Thatcher and Ronald Reagan (Mudge 721–724). Interestingly, in the same period, a form of neo-Kantian liberalism claimed that the coercive power of the state could be justified to those who disagree through the so-called ‘overlapping consensus’, achievable by way of a democratically legitimate procedure which decides how disagreements over the substance of law should be managed (Rawls).
17. Following the end of the Cold War, liberal constitutionalism faced strong contestation from both the left and right of the political spectrum. Two geopolitical areas may be roughly identified: Europe/North America, and the rest of the world.
18. On the one hand, in Europe liberalism has been normally associated with either moderately conservative or welfarist political ideas, whereas in the US the self-avowedly liberal agenda is generally politically progressive (Voegelin 507). However, starting from at least the 1990s, different types of populist parties and movements in Western countries have contested the dominant liberal agenda.
19. On the other hand, in the non-Western world, particularly Africa, Asia, Latin America, and the former Soviet Union, different forms of hybrid or overtly authoritarian regimes emerged (Levitsky and Way (2002) 51). Several definitions have been employed to describe this phenomenon, such as ‘semi-authoritarianism’ (Olcott and Ottaway), ‘competitive authoritarianism’ (Levitsky and Way (2002)), and ‘electoral authoritarianism’ (Schedler). More generally, the so-called ‘authoritarian constitutionalism’ would situate itself at an intermediate level between illiberal and liberal democracies, in the sense that free and fair elections would still be held and individual freedoms would be protected to some extent, but it would not be legally possible to challenge the government’s public policy decisions (Tushnet 396). A typical illustration of ‘authoritarian constitutionalism’ would be represented by Singapore, which, for example, authorizes detention without trial of individuals considered to be a threat to national security, and is characterized by some degree of judicial deference, strict regulation of public spaces for political purposes, and limits to freedom of the press. Other commentators prefer to employ the term ‘abusive constitutionalism’ for those regimes which are characterized by both a relative lack of political accountability by means of vertical and horizontal checks on the political leadership, and a significant lack of rights protection and high corruption (Landau 200; corruption and bribery). Examples under this label would include Hungary (see further in this chapter), Colombia, and Venezuela. However, challenges to liberalism have also been developed from the 1990s in Latin America, especially in Bolivia, Venezuela, and Ecuador, because of a deep discontent within the population regarding the socio-economic inequality of their country. These new regimes, for which the term ‘New Andean constitutionalism’ or ‘populist constitutionalism’ is employed (Baldin), claim liberalism is not able to redistribute wealth, protect minorities against discrimination, or promote participatory democracy (Rovira Kaltwasser 480; Schilling-Vacaflor).