ABSTRACT
Accelerating changes in the nature and scope of democracy and authority in Western democracies have among many other things given appreciable weight to the proclamation by Jose Saramago that governments in the West are but the “political facades of economic power” (Saramago, cited in Swyngedouw 2011: 370). A fruitful site to examine the dynamics of the bounds that the global economic system places on democracy is Canada’s approach to rules-based mechanisms of investment and trade agreements such as the Trans-Pacific Partnership (TPP). 1 These investment and trade agreements (under the general rubric of “foreign investment protection agreements” or FIPAs) are considered “new constitutionalist” insofar as they insulate international capital from domestic policy changes, enforced by international arbitration, or “investor state dispute settlement” (ISDS). This case illustrates how the political discretion of parts of the state (i.e. the executive) promulgate globalization, actively working to depoliticize policy areas so as to facilitate accumulation. The TPP negotiations—like many FIPAs before it—have been conducted in secrecy, with only select members of the Conservative government and certain lobbyists having access to the negotiations or text. Meanwhile, opposition critics, parliament, and the public are excluded from analyzing these stipulations (LeBreton 2012; Kelsey 2013). Rather than simply “shifting” authority from public to private, the TPP constructs a state of exception wherein certain policy areas are insulated from democratic accountability and political discretion, effectively bifurcating politics into private and public realms and constitutionalizing a rising private authority to which government (public authority) is beholden. The path dependency of liberal and new constitutionalism, how the latter is predicated on the former, and their effect on democratic politics are all examined herein. The TPP negotiations evince how political discretion (facilitated by liberal constitutionalism) is used to depoliticize the process by which the rights of capital would supersede the rights of citizens.
