The Three Waves of the Constitutionalism-Democracy Debate in the United States: (And an Invitation to Return to the First)
35 Pages Posted: 4 May 2011 Last revised: 6 Apr 2015
Date Written: October 1, 2009
In the United States, the constitutionalism-democracy debate has taken many forms, it has come in different waves: the first wave focused on whether present day majorities should be allowed to abandon the constitutional forms created by the founders, the second on the legitimacy of judicial review and on selecting among different theories of constitutional interpretation, and the third - which, as I will argue later, comes closer to the first wave of the debate - on the exclusivity or (non) exclusivity of the Constitution’s amendment rule. Although those engaged in each of these waves made important contributions to constitutional theory, there was something special about the first wave. Freed from the questions of interpretation and the never ending controversy over the legitimacy of judicial review of legislation, the protagonists of that debate were able to consider the relationship between constitutionalism and democracy in its raw form: Should popular majorities be allowed to alter the Constitution? This paper will argue that contemporary constitutional theorists have moved away from this question, considering it only in a weakened form. The paper invites those interested in democratic constitutionalism to re-visit the first wave of the debate with a new, fresher perspective, one in which the actual participation of citizens in constitutional change is a priority.
Keywords: constitutionalism, democracy, constitutionalism-democracy debate, constituent power, constitutional reform
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