Constitutionalism and Democracy – Political Theory and the American Constitution

Abstract

The term ‘constitutional democracy’ can be interpreted as either an oxymoron or a tautology. On the one hand, constitutionalism and democracy can appear opposed to each other. Whereas the first term refers to ‘restrained and divided’ power, the second implies its ultimately ‘unified and unconstrained’ exercise. On the other hand, constitutions can be presented as codifying the rules of the democratic game, indicating who can vote, how, when and why. Since the democratic ideal involves more than mere adherence to the formal procedural devices of democracy, such as majority rule, many constitutionalists argue that no true democrat could consistently allow a democracy to abolish itself. There is no contradiction, therefore, in entrenching the rights that are inherent to the democratic process itself and preventing their abrogation even by democratically elected politicians. However, democrats point out that rules constrain as well as enable. There are many different models of democracy, which define the democratic rules in a variety of often incompatible ways. If democracy is to mean ‘people rule’, then the Demos should be free to redefine the rules whenever they want and should not be tied to any given definition. The need to keep open the possibility of democratic review seems particularly important when one remembers that the constitutions of many democracies have excluded significant categories of people from citizenship, notably women and those without property, and placed severe limits on the exercise of the popular will, such as the indirect election of representatives. Of course, some exclusions and limitations are inevitable – they are intrinsic to any rule-governed activity. That we are not lumbered with the exclusions and limitations of the eighteenth century, though, is in large part due to successive social and democratic movements and reforms.See S. S. Wolin, ‘Collective Identity and Constitutional Power’, in The Presence of the Past: Essays on the State and the Constitution (Baltimore: The John Hopkins University Press, 1989), p. 8; cf. also the various studies in J. Elster and R. Slagstad, eds, Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988). On the restriction of scope that constitutionalism imposes on democracy, see A. Weale, ‘The Limits of Democracy’, in A. Hamlin and P. Pettit, eds, The Good Polity: Normative Analysis of the State (Oxford: Basil Blackwell, 1989); and R. Ruffilli, ‘Riforma delle istituzioni e trasformazione della politica’, in Istituzioni Società Stato, vol. III, (Bologna: Il Mulino, 1991), pp. 707–21.Cf. P. Jones, Rights (London: Macmillan, 1994), pp. 173–5.