The Second Dimension of Democracy: The People and Their Constitution
Baltic Journal of Law and Politics, Vol. 2, No. 2, 2009
34 Pages Posted: 13 Aug 2007 Last revised: 22 Sep 2011
Date Written: October 1, 2009
This paper argues that procedural and substantive approaches to democracy fail to address the question of the democratic legitimacy of a constitutional regime. Taking Ronald Dworkin and Jeremy Waldron as a point of departure, the paper contends that procedural and substantive democrats approach democracy at the level of daily governance (which has to do with the adoption of ordinary laws and the administration of a state's bureaucratic apparatus) as if it exhausted the democratic ideal. As a result, they not only ignore democracy at the level of the fundamental laws (which deals with the relation between citizens and their constitution), but the question of democratic legitimacy altogether. After examining the undertheorized distinction between these two dimensions of the democratic ideal, the paper builds on the recent work of Sheldon Wolin and concludes that democracy at the level of the fundamental laws should be conceived as a moment in the life of a polity, the moment in which ordinary citizens exercise their power to (re)constitute the juridical order and legitimate their constitution.
Keywords: democracy, democratic legitimacy, popular sovereignty, constitutionalism, constitution-making, constitutional reform, Dworkin, Waldron
Suggested Citation: Suggested Citation