51 Pages Posted: 14 Jul 2011 Last revised: 5 Apr 2015
Date Written: July 12, 2011
Democracy and constitutionalism seem to be in tension with each other. This line has been repeated a thousand times, usually with the purpose of proving it false. The prevailing orthodoxy is that constitutionalism and democracy are so related that they are two sides of the same coin; any tension between the two is more apparent than real. This dominant view presents constitutionalism as the embodiment of democratic principles, such that a 'constitutional democracy' is considered to be the true realization of the two ideals. However, there is a more neglected strand of thought which challenges this effort to conflate the differences between constitutionalism and democracy. This paper seeks to provide a more searching account of that heterodox approach. It will show that constitutionalism and democracy can only be treated as synonymous or mutually-constitutive if the idea and practice of democracy is divested of its most basic components, namely, democratic openness and popular participation. In contrast to much contemporary work, the paper defends the proposition that it is only a 'weak' form of constitutionalism, one in which democracy is de-constitutionalized in important ways, that can be rendered consistent with the basic thrust of the democratic ideal.
Keywords: democracy, constitutionalism, weak constitutionalism, popular constitutionalism, constituent power, participation, constitutional interpretation
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