Constitutional Functions and Constitutional Problems of International Economic Law by Ernst-Ulrich Petersmann

Author:Ernst-Ulrich Petersmann [Petersmann, Ernst-Ulrich]
Language: eng
Format: epub
Tags: Political Science, General
ISBN: 9780429710513
Google: QimNDwAAQBAJ
Goodreads: 48633549
Publisher: Routledge
Published: 2019-03-04T07:42:16+00:00

C) Means of Constitutional Constraint

From the liberal perspective where individuals are the ultimate source of value, the valuation of “private goods” and the determination of “public goods” (e.g. governmental income redistribution) are subjective and cannot be determined as an objective external standard independent of individual preferences. Economic markets and democratic politics are institutional processes enabling persons to express their own values on the alternatives with which they are confronted. Thus, in a liberal democracy, the “national interest” (e.g. in the field of trade policy) cannot be democratically determined without individual freedoms, transparent policymaking and economic and political competition as means of discovering individual preferences. The recognition in the constitutional laws of democratic societies of inalienable human rights as the highest value implies, moreover, that the enumeration in written constitutions of specific individual rights cannot be regarded as exhaustive and that the sphere of individual freedoms includes all actions not explicitly restricted by a law.8 Thus, there is no constitutionally recognized reason to assume that the individual freedom of trade is limited to the choice of domestic trading partners and does not also protect transnational trade transactions with foreign trading partners. The constitutional principle of individual “freedom within constraints” has been explicitly recognized in the national constitutions of several states. The Ninth Amendment of the US Constitution makes it explicit that “the enumeration of certain rights in this Constitution shall not be construed to deny or disparage others retained by the people”. Or Article 2 of the German Grundgesetz states: “Everyone shall have the right to the free development of his personality in so far as he does not violate the rights of others or offend against the constitutional order or the moral code… These rights may be interfered with only on the basis of a law”. And Article 1 of the German Grundgesetz states: “(1) The dignity of man shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. (3) The following basic rights shall bind the legislature, the executive and the judiciary as directly enforceable law”.

A major conclusion of chapter VI was, however, that neither the US Constitution nor the EEC Treaty effectively limit and constrain the broad discretionary trade policy powers. Congressional majorities as well as the EC executives feel largely free to use their respective trade policy powers for restricting individual rights and redistributing income among domestic groups as they like. Chapters V.3 and VI.3 fiirther referred to the insight of modern public choice theory that individual liberties, democratic electoral competition and majority rule are not sufficient guarantees to constrain governments to implement “the public interest” and to prevent abuses of the practically unlimited legislative and regulatory powers in the trade policy area. Hence, the need for additional constitutional safeguards.

Most liberal constitutional theories since the 18th century treat the economic and the political system symmetrically as

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