Sovereignty and Beyond: The Double Edge of External Constitutionalism

By Neil Walker

This paper argues that the emergence and augmentation of the external dimension of state constitutional law is best understood as part of a broader process of the constitutionalization of state sovereignty since the eighteenth century. That gradual development should not be understood, as it often is, in purely reductive terms–as the legal containment and taming of a previously uncontained sovereign power. Rather, it should be understood in constructive terms–as a way of reconstructing the very idea of sovereign power for modern times along more abstract lines, embracing a high level of institutionalization, internal differentiation, and corporatization. The modern constitution, it follows, has been the enabler and means of articulation of sovereign power as much as its restraint, and this double significance–or ‘double edge’–characterized the development and operation of external sovereignty as much as it did that of internal sovereignty. Today, we find increasing emphasis upon how the external norms of domestic constitutions are contributing to the building of a more communitarian international order, yet this threatens to be overstated. To the extent that the constitution necessarily remains an expression of as much as a constraint upon state sovereignty, there is an abiding tension between the legal empowerment of that external sovereign expression in unilateral terms and the more fundamental multilateral qualification of that sovereignty through legally mandated deference to or engagement with transnational or international norms and institutions. In acknowledging and addressing that tension, we see in state constitutional architecture today the evolution of a more intense form of ‘demarcation sovereignty,’ concerned with the staking and maintenance of boundaries deemed necessary to guarantee the continuing basic integrity of the sovereign unit in an increasingly legally interdependent world.

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