Constitutionalism and Democracy

Abstract:     
This chapter reviews the four main arguments that contemporary legal and political philosophers have employed to cut the Gordian knot of constitutional democracy. All four seek to redefine the terms of the opposition so as to render them compatible: the first by assimilating democracy into constitutionalism and emphasizing the importance of a framework of rights and liberties as necessary conditions of citizenship; the second by insisting, more modestly, that certain rights and rules are simply inherent to, and so necessary for, democratic procedures; the third by attempting to synthesize these two and emphasizing the implicit constitutional substance of democratic procedures; and the fourth by conceiving the constitution as the outcome of a democratic process. I discuss two prominent examples of each of these four theses. Almost all the authors surveyed are American and I shall emphasize throughout how the dominant versions of these arguments have been inspired by rival understandings of the US constitution and the status of ‘We the People’ as its supposed authors. As we shall see, these idealizations of the American model prove disputable in their own terms and are, more often than not, belied by the reality.

Number of Pages in PDF File: 53

Keywords: constitutionalism, democracy, Rawls, Dworkin, Habermas, Shapiro, Burt, Ackerman, Kramer

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