Constitutional Law or Straitjacket?

Agustín José Menéndez has published an article (in Spanish) in the Italian journal Teoria Politica, in which he argues that the theoretical and empirical basis of the new «financial constitutional law» are deeply flawed.


Fiscal rules have been proclaimed as a key instrument in order to contain and overcome the existential crisis of the European Union. The fiscal crisis of several Eurozone states have been regarded as clear evidence of both a pattern of overexpenditure («states living beyond their means») and of the urgent need of reining it expenditure through binding constitutional rules. Such diagnosis has played a key role in the emergence of a new breed of European «financial constitutional law».

In this article, it is claimed that the theoretical and empirical basis of the new «financial constitutional law» are deeply flawed. Discretionary public expenditure has not been the major driver of the secular growth of public debt since the 1970s. High levels of unemployment, and above all, the erosion of the capacity to tax (due to the unleashing of capital from regulatory controls) and the renunciation of the tools through which states could keep control on the rates at which they borrowed (by making of the central bank the buyer of last resort of public debt) are behind the constant growth of debt. Moreover, reductions in the levels of public expenditure may or may not lead to a reduction of the actual levels of public debt.

While «fiscal rules» are bound to be ineffective as means to reduce public indebtedness, they play a key role in opening up national constitutions to a new understanding of the relationship between law, politics and economics, which can be summarised in the regulatory ideal of the consolidating state. The consolidating state is to a large extent the Social and Democratic Rechtsstaat turned upside down. Its main goal is to preserve the value of capital, especially financial capital, and to do that makes active use of the tax system as a means of (reverse) redistribution and of management of the economy (through micromanagement, not through macroeconomic steering). The steering state needs not to be reprogrammed by reference to «progressive» fiscal rules but simply challenged by a defense of the «old» financial constitution of the Social and Democratic Rechtsstaat.

Full info

Agustín José Menéndez
Constitutional Law or Straitjacket? From the New Fiscal Rules to the «Consolidating State»
¿Constitución o camisa de fuerza? De las nuevas reglas fiscales al «Estado amortizador»

Teoria Politica, nuova serie, vol. 5, 2015, pp. 189-219

Published Oct. 5, 2015 11:45 AM - Last modified Aug. 25, 2020 8:47 AM