Counterconstitutionalism

Abstract

Democratic constitutionalism has often erected a high barrier separating the citizen from the state. This is paradoxical because the very promise of constitutionalism is to produce precisely the opposite result: to bind the citizen to the state, and to create and cultivate a constitutional culture that is anchored in participatory democracy. I have a name for this paradoxical state of affairs: counterconstitutionalism. In this article, I introduce and illustrate the concept of counterconstitutionalism with reference to bills of rights in constitutional states representing civil and common law traditions on four continents.

Keywords: democracy, constitutionalism, Bills of Rights, citizenship, participatory democracy, liberal democracy, constitutional design, Canada, United States, South Africa, India, Germany