Abstract

http://ssrn.com/abstract=1714633
 
 

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Democracy and Constitutional Change


Allan Hutchinson


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

Abstract:     
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: K39

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Date posted: November 25, 2010 ; Last revised: August 30, 2011

Suggested Citation

Hutchinson, Allan and Colón-Ríos, Joel I., Democracy and Constitutional Change (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. Available at SSRN: http://ssrn.com/abstract=1714633

Contact Information

Allan Hutchinson (Contact Author)
York University - Osgoode Hall Law School ( email )
4700 Keele Street
Toronto, Ontario M3J 1P3
Canada
(416) 736-5048 (Phone)
Joel I. Colón-Ríos
Victoria University of Wellington - Faculty of Law ( email )
PO Box 600
Wellington, 6140
New Zealand

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