The End of the Constitutionalism-Democracy Debate
Windsor Review of Legal and Social Issues, Vol. 28, 2010
44 Pages Posted: 23 Jan 2009 Last revised: 29 Oct 2014
Date Written: January 20, 2009
There is something strange about the literature produced in the 1990s by North American constitutional theorists on the relationship between constitutionalism and democracy. The problem, I believe, has two different roots: an excessive focus on the legitimacy of judicial review and an insistence in defending the constitutional status quo. On the one hand, the emphasis on judicial review usually ended up obscuring what should have been at the center of the debate: the way in which ordinary citizens could or not re-constitute the fundamental laws under which they lived. On the other, these approaches rarely involved recommendations for institutional changes (other than the occasional proposal for the abolition of judicial review) in the constitutional regimes they were operating. These 'happy endings' were particularly surprising, since one would think there must be many ways of upsetting the 'balance' between constitutionalism and democracy in favor of the latter. In fact, it would be astonishing that constitutional traditions which originated in an attempt to protect certain institutions from the passions of disorganized multitudes would not be wanting, even a bit, from the point of view of democracy. With these limited ends, it is no surprise that the constitutionalism-democracy debate appears to have stagnated.
This paper will advance a different approach to the debate, one that emphasizes popular participation in constitutional change and that recommends institutional transformations that would contribute to the realization of democracy in contemporary constitutional systems. I begin by reviewing the works of Ronald Dworkin, Jeremy Waldron, and Bruce Ackerman. The take of these three authors on majority rule, judicial review, and constitutional amendments, exemplify very well the shortcomings of the literature on constitutionalism and democracy. The implications of Dworkin's constitutional theory are fatal for any democratic project: the prettification of a constitutional regime that is reputed to rest on the 'right' abstract principles. Waldron's approach, although attributing to 'the people' the right to have the constitution they want, ends up identifying people and legislature, thus neglecting any actual participation of citizens in constitutional change. Ackerman's constitutional politics, although insisting in keeping citizens and representatives separate, replaces the flesh and blood human beings that live under the constitutional regime with a mythical 'People' (always with a capital P) whose acts are identified ex post facto. In contrast to these theories, I propose a conception of constitutionalism according to which the constitution should remain permanently open to important transformations. Under this 'weak' constitutionalism, there is no such thing as a 'good' or 'finished' constitution, contrary to what Dworkin's analysis implies. Only such a conception of constitutionalism, I believe, is consistent with a serious commitment to the democratic ideal. However, this supposes that democracy is not exhausted in legislatures and daily governance, but that it extends to deliberating and deciding on the very content of the constitution. In this respect, and in contrast to Waldron, I will defend a distinction between two dimensions of the democratic ideal: democracy at the level of daily governance and democracy at the level of the fundamental laws. By their very nature (daily vs. episodical), each of these dimensions demand different levels of popular engagement. Finally, I consider the institutional implications of this approach to the constitutionalism-democracy dilemma. Unlike Ackerman, I suggest a series of mechanisms designed to allow for the actual participation of ordinary citizens in the constitution and re-constitution of government.
Keywords: constitutionalism, democracy, constitutional change, popular participation, constituent power, Ronald Dworkin, Jeremy Waldron, Bruce Ackerman
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