Chapter 13: Marx and critical constitutional theory
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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. Marx’s critical theory of constitutional law is political, social, socialist, and anti-systemic. Marx contrasts the ‘political constitution’ with ‘democracy’ in order to foreground the constitution’s limitations and point the way toward the resolution of the paradox of constitutionalism by centring the people’s constituent power and subjecting the constitution to popular will at all times. Instead of a class-neutral constituent power leading a political revolution, Marx envisions a social revolution in which the proletariat is the constituent power. For Marx the fundamental contradiction consists in the blockage of social emancipation, and constitutional incoherence and instability emanate from the unresolved paradox of constitutionalism. Marx paves the way for a radical constitutionalism that offers an alternative to both despotism and class rule.

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