Democracy and Constitutional Change
York University - Osgoode Hall Law School
Joel I. Colón-Ríos
Victoria University of Wellington - Faculty of Law
November 24, 2010
Theoria: A Journal of Social and Political Theory, No. 127, 2011
Osgoode CLPE Research Paper No. 48/2010
Victoria University of Wellington Legal Research Paper No. 16/2011
The relationship between democracy and constitutions is a long and fractitious one. Those who lean towards the constitutionalist side have tended to perceive democracy as a threat to political order and the preservation of important values, whereas those who take a more democratist stance tend to treat constitutions as elite hindrances to popular rule as much as anything else. In this paper, we will give the constitutionalist thesis a broader theoretical and political scrutiny. By way of explanation, we will address and recommend the possibilities and problems for putting into practical operation such an anti-constitutionalist stance; the recent experience of the U.S. State of California offers itself as a good forcing-ground for these ideas. In short, from a democratic standpoint, the challenge for the citizenry is not so much about defining the values of constitutions, but constitutions whose change is outside the scope of popular decision making, supposed to exclusively take place through judicial interpretation or through an amendment formula designed precisely to make change difficult and unlikely. Too often, constitutions place checks and limits on democratic participation in the name of some other set of vaunted truths or elite-favouring values. For the strong democrat, it is formal constitutions and their institutional paraphernalia that do more to inhibit and dull democracy’s emancipatory potential than to nurture and fulfil it.
Number of Pages in PDF File: 20
Keywords: Democracy, Constitution, Constitutionalist, anti-constitutionalist, U.S. State of California, judicial interpretation
JEL Classification: K39Accepted Paper Series
Date posted: November 25, 2010 ; Last revised: August 30, 2011
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