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Constitutional Democracy Richard Bellamy Introduction The conjunction of constitutionalism and democracy is relatively recent. It arose in European thought in the seventeenth and eighteenth centuries, appearing in different forms in the wake of the revolutionary moments in England post-1640 and again in 1688, the USA following independence and the drafting of the constitution in 1787 and in France after 1789. During the nineteenth and twentieth centuries, especially after World War II, a democratic regime gradually came to be regarded as needing to be by definition a constitutional regime as well. Yet, democracy may be deemed constitutional in a variety of ways and contemporary constitutional democracies differ greatly in a number of respects. The USA, Germany, Italy, Australia, France, the United Kingdom, and Finland may all be constitutional democracies but their political and legal institutions, norms, and practices diverge in ways that reflect very different conceptions of constitutionalism, on the one hand, and democracy, on the other, and of the relationship between these two concepts. What follows explores three prominent ways in which constitutional democracy has been conceived, turning in a final section to the constitutive role each of them accords democracy as a source of the constitutional framework within which it operates. The analysis is conceptual rather than historical. It develops ideal types that reflect the main positions of key figures in the contemporary debate on constitutional democracy and the practices of established democratic states in Europe, North America, and the Commonwealth. These ideal typical models have been exported worldwide, not least through international forms of constitutional democracy embodied in entities such
as the European Union and the United Nations. While they often interact with non-European models of legal and political rule, most notably in seeking to accommodate indigenous peoples within a predominately west European and North American conception of the constitutional and democratic order (Tully 1995), this topic merits and receives a separate discussion elsewhere in this encyclopedia, as does global constitutionalism. Accordingly, this entry begins by tracing certain defining features of the two key terms of constitutionalism and democracy, with subsequent sections exploring the three main ways in which they have been combined. As we shall see, each of these combinations turns on a different understanding of both concepts. All three accounts share the view of Rawls (1995) and Habermas (1995) that democracy and constitutionalism are equiprimordial in the sense that the one entails the other. However, they offer contrasting perspectives on this mutual entailment. The first two accounts locate the basis of democracy within a legal constitution that embodies democratic values that limit and define actual democratic processes. In the first account, the constitution constrains the outcomes of democracy, in the second the constitution enables the democratic process. On both these accounts, constitutionalism is seen as a higher law upheld by constitutional courts. By contrast, the third account sees democratic processes as themselves constitutional and self-limiting and defining. The very need to adopt a democratic process to reach collective decisions renders democracy per se constitutional. Cutting across these three accounts is the constitutive role each accords to democracy. Constitutional democracy refers here to the employment of democracy for debating and validating the constitution – including the constitution of the democratic process itself. The final section explores how each account conceives of this role in a way
The Encyclopedia of Political Thought, First Edition. Edited by Michael T. Gibbons. © 2015 John Wiley & Sons, Ltd. Published 2015 by John Wiley & Sons, Ltd. DOI: 10.1002/9781118474396.wbept0202
2 that accords with the distinctive conceptions it promotes of democracy and constitutionalism more generally. Although these three accounts are considered discretely below, actually existing constitutional democracies tend to contain elements of all of them. The entry concludes with a brief discussion of whether they ought to be combined and if so how.
Constitutionalism and Democracy At the most abstract level, constitutionalism refers to a set of rules that determine how a practice or institution is organized and run. Such rules can be formal or informal, principled or pragmatic, written or unwritten, rigid or flexible, entrenched or easily amended, represent a higher law or be part of ordinary legislation. It is sometimes asserted that the only “true” constitutions are written, entrenched, superior to ordinary legislative change and justiciable. Yet, most constitutions involve a mixture of different types of rules, some of which have these qualities and others which do not. For example, the US Constitution has written and entrenched rules regarding how valid law is made and changed and the ways these rules might be amended, but (on most interpretations) the rules about how these rules might be interpreted, by who, and with what effect are unwritten and conventional. And there are some constitutions, such as that of the United Kingdom, which lack most of these qualities altogether. Being written down and deemed superior does not guarantee a constitution’s effectiveness – witness the Soviet Constitution of 1936. Likewise, an ordinary piece of legislation, such as the UK Human Rights Act, can be viewed as being in certain key respects a “higher” law. Indeed, in common law systems it is not unusual for even unwritten norms to be both justiciable and superior to ordinary legislation. The key is that the relevant constitutional norms, regardless of their formal status, command broad acceptance as legitimate and necessary among both relevant officials and the general population to whom they apply.
Writing down a constitution and according it special status may encourage such acceptance and ensure it is rationally based. As we shall see, democracy has been deemed to play an important role in generating such legitimacy in the constitutive process, even by those who regard constitutions primarily as constraints on democratic rule. However, tradition and custom also confer legitimacy and allow for flexibility and adaptation to changing circumstances. With regard to their impact on democracy, constitutional provisions can be divided into negative, or constraining and limiting, rules, on the one hand, and positive, or facilitative and enabling, rules, on the other. Negative rules restrain those in power from performing certain acts, such as torture or use of the death penalty, or limit them from entering certain spheres, such as influencing ecclesiastical appointments. The standard justification for such restrictions and limitations lies in some account of prepolitical rights that demarcate the ways and areas in which public authorities may interfere with individuals. However, as these examples indicate, different constitutional systems vary as to which acts are prohibited and those spheres that are deemed off limits. Positive rules concern less what can be done than how it can be done and by who, although there is some overlap between the two issues. Thus, rules determining the organization and timing of elections to the legislature may restrict the ability of incumbents to call a snap election, but they also empower voters and create the possibility for a democratic electoral process. As such, they enable millions of citizens to act in a coordinated manner and invest that process with legitimacy and authority. Likewise, the rules governing the operation of the political system itself, such as bicameralism or the separation of powers, may be seen as “checks” on the power of the legislature or the executive, or as ways of structuring the exercise of that power to ensure it operates more inclusively and deliberatively. Similarly, that a legislative act in becoming law is handled by the courts offers not only a way for ensuring
3 even those who make laws are subject to them, but also a means of giving formal and authoritative expression to the will of the legislature or of governments. The negative view of constitutionalism tends to regard both democracy and the state and politics more generally as threats to individual liberty. As a result, those who adopt this approach seek, for the most part, not only to constrain and limit how democracy and the state operate, but also to reduce the extent of their operation. By contrast, the positive view seeks rather to ensure that democracy and the state operate in certain ways – for example, that they are inclusive and deliberative. Advocates of this approach are much more likely to acknowledge the many ways that state action promotes individual liberty, and regard democracy as ensuring it does so in a manner that is equitable and sensitive to the commonly avowable interests of all rather than the those of a privileged minority. In this regard, the different approaches to constitutionalism are related to different understandings of the nature and role of democracy. The core concept of democracy refers to a certain sort of process – one that involves, as the Greek origins of the term imply, some form of “people rule.” This notion has often been seen in terms of popular sovereignty. At one level, this formulation conjures up the image of collective self-rule in which the people know no other sovereign than themselves. At another level, it suggests that in acquiring the sovereign powers of monarchical rule, the people become a potential tyrant themselves. This ambivalence is present in the way in which a constitution can be portrayed by certain authors as both the expression of “we the people” – the supreme instance of their sovereign rule over themselves – and as a necessary mechanism for preventing that rule being exercised in a tyrannous fashion. However, “people rule” has also been conceived in terms of political equality – as a mechanism for giving all an equal share in framing the rules that shape their collective life. In this guise, constitutionalism arguably has less warrant for constraining
democratic power and should be more focused on maintaining and protecting political equality against the many social and institutional factors that may lead to its subversion. Meanwhile, democracy also has a negative and a positive function. Negatively, it provides a mechanism for citizens to protect their interests and ensure that their rulers are responsive and accountable to them. Positively, it offers a means for constructing the public interest through participation in collective decisionmaking and debate. As such, democracy can itself be said to assume the constitutional functions of constraint and empowerment. It offers a means for citizens to check their rulers and each other, while collaborating in the pursuit of policies necessary to their common good. Roughly speaking, there have been two broad approaches as to how democracy might pursue these two tasks. What might be called “shallow” theories of democracy emphasize the negative function and read the positive through it, as the aggregation of individual interests. By contrast, “deep” theories of democracy tend to emphasize the positive function and regard the negative as being assured though a more deliberative and inclusive view of the public interest. The differing interpretations of constitutionalism and democracy outlined above can be combined to give rise to the three accounts sketched in the introduction. They are portrayed somewhat schematically below in Tables 1 and 2. The first account, explored in the next section, reflects the predominantly “liberal” positions represented in the left-hand column of Table 1. For this group, constitutionalism is largely conceived as a constraint on a shallow view democracy, yet in certain respects an enabling one. The second account, represented by the bottom right cell in Table 1, consists of more “republican” positions that see constitutionalism as justified principally as a mechanism that supports and promotes a deep democratic process. Both these accounts are varieties of “legal constitutionalism,” in which a legal constitution upheld by a constitutional court frames the operations of democracy. By contrast, the third account,
4 represented by Table 2 opposite, is a form of “political constitutionalism” which treats the political system itself as providing constitutional constraints on the exercise of power. On this account, constitutional democracy is best described as a form of democratic constitutionalism whereby the workings of the democratic process itself promote certain constitutional
goods. Finally, the ways these three accounts understand the constitutive role of democracy will be examined: as a form of self-binding in the first case, represented by the top-right cell of Table 1; as a regular, if episodic, populist expression of the general will, in the second; and as part of the normal electoral and legislative process, in the third.
Table 1 Legal constitutionalism. Democracy Constitutionalism constraining empowering
shallow Liberal forms of constitutional democracy Social liberal forms of constitutional democracy
deep Liberal forms of constitutive democracy Republican forms of constitutional democracy and popular constitutionalism
Table 2 Political constitutionalism. Democracy Democracy constraining empowering
shallow Vetoes and supermajority Competitive parties and majority rule
Constitutionalism as a Constraint on Democracy Although constitutions perform many functions and can be conceived in a variety of ways, by far the most common account of constitutionalism today gives pride of place to the constitutional entrenchment of certain basic rights and their upholding by a constitutional court. More than anything else, it is this rights focus that has given constitutionalism its juridical cast. Though this approach is compatible with enabling democracy, as will be discussed in the next section, it has been associated primarily with a negative view that places constraints on democracy. According to this negative view, rights act as “trumps,” to cite Ronald Dworkin’s potent metaphor (Dworkin 1977). This argument turns on a distinction between basic or human rights that derive from certain essential interests of individuals as such, and the positive or institutional
deep Weak judicial review Bicameralism
rights that result from any law or policy. Theorists who take this line argue that collective laws and policies that institutionalize rights are only legitimate to the extent that they do not conflict with and serve to promote basic human rights. For some thinkers, hardly any state policies can pass this threshold. Such views tend to treat property rights as being intrinsically linked to all other basic rights and essential to the maintenance of individual liberty. At best, the state might be justified in providing a minimal system of law and order to protect these basic rights (Nozick 1974). By contrast, for other thinkers a broader range of positive laws and state regulations are deemed to be compatible with rights and to enhance their protection (Dworkin 1996). However, despite their differences, both camps tend to regard democracy in shallow terms and to regard a legal constitution consisting of judicially protected constitutional rights as a necessary constraint upon it. As a
5 result, both conceive a constitutional democracy as one that is judicially limited with regard to the acts and areas that a duly elected government or legislature can legitimately pursue. Courts may strike down legislation or override executive acts that are deemed unconstitutional. Theorists who think even a democratic state can only operate in a very limited sphere have been inclined to view democracy and constitutionalism as opposed rather than complementary. Collective decision-making simply provides an occasion for infringing individual rights for which democracy offers a spurious legitimacy. On their account, democracy gives voters the means to employ state power to tax and coerce others in order to fund their own self-serving ends. As such, it risks either majority tyranny or minority rent-seeking. Consequently, the need to check against populism, on the one hand, and factionalism, on the other, proves paramount (Buchanan & Tullock 1962). However, such libertarian reasoning is rarely deployed in an even-handed manner to promote both economic and civil liberties, or to benefit freedom of contract for workers and employers alike. For example, it was reasoning of this kind that underlay the judicial striking down of some 150 pieces of labor legislation during the Lochner era in the USA – roughly between 1885 and 1935 – including legislation in 1916 outlawing child labor (Waldron 1999: 288). Meanwhile, the same period witnessed draconian legislation against freedom of speech and assembly, likewise aimed at the labor movement and so-called criminal syndicalism. Those who take a broader view of the legitimacy of state action as rights-promoting have tended to see constitutionalism and democracy as more complementary. Thus, Dworkin contends the “defining aim of democracy” to be “that collective decisions be made by political institutions whose structure, composition, and practices treat all members of the community, as individuals, with equal concern and respect” (Dworkin 1996: 17), a view that dovetails with his account of rights as those principles necessary for individuals to be treated with
equal concern and respect. As a result, the democratic and the constitutional aim at one and the same goal. However, he contends a shallow, or in his terminology a “mechanical” or “statistical,” form of majoritarian democracy, where legislation needs only to be endorsed by a majority or plurality of voters to pass, frequently fails to realize this goal because of the aforementioned risks of majority tyranny and rent-seeking. In his view, a constitutional democracy that balances majoritarian democracy with rights-based judicial review by a constitutional court is more likely to do so. Dworkin argues that the democratic aim is realized by securing the qualities needed for each citizen to count as “a moral member” of the political community, that is as someone possessing “equal status” within it. For moral membership to be secured an individual must be guaranteed “a part in any collective decision, a stake in it, and independence from it” (Dworkin 1996: 24). In other words, individuals have to be given equal and adequate opportunities to influence the political agenda and the decisions that get taken, be viewed as of equal worth and shown equal consideration in the decision itself, and finally, and most controversially, individuals must be able to take responsibility for certain features of their life by not being interfered with by collective decisions. However, he believes that constitutionalism realizes these democratic aims better than democracy itself. Let’s explore each of his arguments in turn. Dworkin thinks majority decision-making tends simply to aggregate interests, or arrange trade-offs between them, encouraging “compromises that may subordinate important issues of principle” (Dworkin 1996: 30). Yet democratic constitutionalists would argue it is the very mechanical and statistical features of a majoritarian system based on one person, one vote that guarantee individuals play an equal “part” and, because each counts for one and no more than one, ensures them an equal “stake” in which their views are treated on a par with everyone else’s. As for compromise, it too can often be a principled recognition of the equal
6 stake each has in a decision and the need to make mutual concessions (Bellamy 2007: chs. 1 and 6). Of course, majoritarianism per se cannot guarantee that the electorate includes all relevant parties, that some voters will not be motivated by prejudice towards others, or that certain minorities might not be oppressed or individual rights curtailed by majority vote. However, neither can judicial review. As I noted, US legal history shows all too well how courts can interpret constitutional rules in ways that systematically prejudice the part, stake, and independence of particular groups. Moreover, which interpretation prevails frequently turns on a majority vote among the Supreme Court justices. In any case, Dworkin’s apparent assumption that a crude US form of majoritarianism based on first past the post, on the one hand, and a Supreme Court practicing rights-based judicial review, on the other, offer the only games in town is simply mistaken. As we shall see in the next section, majority rule has more often than not been modified in various ways to reduce some of its potential tyrannical effects. Most majorities turn out to be shifting coalitions of minorities, which perforce must compromise with a wide range of groups to sustain a government, with consistent minorities often catered for by consociational or self-government arrangements that introduce a degree of proportionality into the system. The flawed majoritarianism of the US and UK plurality systems, like US and German-style substantive judicial review, are exceptions rather than the rule within mature democracies. There is also little support for Dworkin’s empirical assertion that substantive judicial review has rendered the USA more just (in the democratic sense of promoting equal concern and respect among citizens) than if rights had been left to majoritarian institutions. In fact, judicial review has often blocked the very legislation that advanced rights protection in other democracies (Dahl 1989: 189–90). For example, if one takes women’s parliamentary representation as an indicator of equal rights to play a
“part” in collective decisions, then, as Robert Dahl has shown, the USA ranks 18th out of the 22 stable postwar democracies within advanced industrial societies. It fares almost as badly on voter turnout, coming 21st (Dahl 2001: 168–9, appendix B, table 5). These low levels cannot be attributed to satisfaction with the policies achieved by the judicial and other democratic delegates. If we take unemployment, family policy, or the welfare state index as indicators of the “stake” the poorest sections of the USA have in the decisions made in their name, then the USA scores 8th, 12th, and 17th respectively. In sum, it does no better, and on many counts substantially worse, than those democratic systems that have not adopted substantive judicial review. The objections so far have turned on whether placing constitutional brakes on a democratic process necessarily produces more democratic outcomes. However, these objections with regard to outcomes are related to the ways judicial review potentially undermines the democratic process (Waldron 2006). For a process that gives citizens an equal voice may be more apt to ensure that the concerns of the underprivileged do not go unnoticed – they can promote their interests on a par with the privileged. Yet, let us assume that constitutionalism could guarantee democratic outcomes, would it matter that it did so without recourse to any democratic input? Suppose the Supreme Court was made up of clones of Ronald Dworkin who could be guaranteed to make the “right” decisions when democratic values were at stake. Would a democrat not be entitled to feel there had been a diminution of democracy? Dworkin offers two responses to this objection. He identifies one reason for criticizing a purely results-based conception of democracy in the “civic republican” argument for the morally improving character of political participation and deliberation. Dworkin suggests that civic republicans overlook that Supreme Court decisions can also spark “a widespread public discussion” within the media, classrooms, and around dinner tables that, because it is focused
7 on matters of principle rather than political horse-trading, “better matches [the] conception of republican government than almost anything the legislative process on its own is likely to produce” (Dworkin 1996: 30–1, 345– 6). This thesis seems doubly flawed. For a start, whatever the failings of debates within the legislature, they clearly provoke just as lively and principled debates outside the chamber as anything achieved by the courts. As Jeremy Waldron has noted, one has only to think of the discussion surrounding the legalization of homosexuality sparked by the 1957 Wolfenden Report in Britain, which precipitated the extended exchange between Hart and Devlin over the law’s role in enforcing public morals (Waldron 1999: 290). It might be suggested that the advantage of judicial review is that it focuses attention on the interpretation of constitutional rights. But neither Hart and Devlin, nor the many others who entered the debate, were inhibited from considering the principles involved by the absence of this dimension. Indeed, one could say they were better able to engage directly with the philosophical questions thrown up by the issue through not having to couch their arguments in terms of a particular reading of a loosely worded eighteenth-century document and the ways one ought to interpret it. It is also misleading to view the debates sparked by court decisions as platonic dialogues, untouched by interest group pressures, prejudice, or ideology. When the court becomes the maker of important policy decisions then campaigning groups simply turn their attention to capturing the court and pressurizing judges. Most importantly, though, Dworkin’s counterargument simply misses the point that it is not just debating but also deciding that matters. Certainly, participation in a public debate can be educationally and no doubt morally improving. However, it is the sense that one has played a part in a collective decision that generates a sense of moral responsibility on the part of citizens, obliging them both to respect the views of their fellows and to abide by the majority view. If the decision is effectively
taken out of their hands, then why should they feel any need to moderate their views to accommodate others or view it as in any sense “theirs”? The importance of deciding as well as debating becomes even more heightened once we acknowledge that courts can get it wrong. Dworkin remarks that since politicians may also be mistaken, the potential damage done to democracy by courts and legislatures making an error is “symmetrical.” Yet, in the latter case, citizens may either blame themselves or the politicians they elected. In particular, they can rectify the error by threatening to withdraw their support from the incumbent government unless the decision is altered. Dworkin’s second argument comes in here. He argues that the appeal of democracy cannot be that it gives citizens an equal impact or influence over issues. These goals are not only unrealistic, since those in positions of power or with greater wealth will inevitably exert greater sway over any decision, but also undesirable, given that “we want those with better views, or who can argue more cogently, to have more influence” (Dworkin 1996: 27). What counts is equality of status. That merely requires that the rules for selecting decision-makers, be they judges or politicians, do not formally discriminate against any group, and that the decisions themselves treat all equally. Now, wealth and privilege may be even more of an advantage for those pursuing a political career, at least in the USA, than they are in aiding access to a top-flight law school and ascending to the bench. However, you do not have to become a politician or fund a political campaign to have your vote count the same as everyone else’s. Certainly, the weight of any single vote is very small. But the need to woo ordinary voters should not be discounted either. As the women and workers who struggled for the vote appreciated all too well, periodic elections provide politicians with a crucial incentive to respect the interests of citizens – those without the franchise tend to get overlooked. Even so, do we really wish to accord the same weight to the ignorant, stupid, and bigoted as we do to the well-educated, intelligent, and
8 fair-minded? Unfortunately, prejudice, selfinterest, short-sightedness, and indifference are not exclusive to the ill educated or unintelligent. The rich, powerful, and even the clever are all too often ill informed about, and disinterested in, the experiences of those less fortunate than themselves. If we have no agreed metric for deciding the best way of according each individual equal concern and respect, then we have no reason not to give everyone an equal weight in determining how this principle will be deployed in their community. Not to do so would be to deny them equal status as right holders to play an equal part in defining and defending their rights on an equal basis with others. Moreover, as we have seen, on Dworkin’s own account of what equality involves, all the evidence suggests it is the most reliable (if not an infallible) way to ensure all citizens have an equal stake in that decision too. It will be countered that this conclusion raises the issue of how we determine whether the process is itself equal for all. Before turning to this procedural argument in the next section, we need to deal with Dworkin’s final outcomebased argument. As we saw, Dworkin defines the relational conditions of democracy as involving “independence” from a collective decision as well as a “part” and a “stake” in it. At first blush, this criterion appears more as a right against democracy than one entailed by democratic values. However, Dworkin insists he is not invoking the “rights as trumps” argument here. Rather, he maintains that if collective decision-making is to preserve self-respect, then those involved in it must be free to make up their own minds about certain issues and have a realm of personal responsibility. The first element is certainly an intrinsic part of democracy, and can be stated even more strongly as a right to dissent. The second is trickier, though, because that realm will itself have to be a matter of collective agreement and concern. Indeed, it may even be made possible by collective measures. Moreover, as critics of J. S. Mill’s self-regarding/other-regarding distinction have observed, there are relatively few
(if any) personal acts that do not have implications for the public good. For example, we see marriage and the family as “private,” “personal” matters. However, both are largely defined by law and relations within them are publicly regulated – we no longer think a man’s home is his impregnable castle where he is free to batter his wife and abuse his children. Dworkin clearly has issues such as abortion and euthanasia in mind, both of which have been treated by the Supreme Court as personal matters protected by the individual’s right to privacy. Yet these cases reveal the weaknesses of this individualistic approach more than its strengths. Democrats have always been suspicious of rights against the collective process because they see them as attempts by individuals to escape their collective responsibilities and retain their unmerited or indefensible privileges. Making something a private matter, though, can also be a way of removing a collective responsibility for it and ignoring the effects of personal choices on others. Arguably, this is precisely what has happened in the USA with regard to abortion. Meagre social support for maternity and child-raising, and the absence of public funding for abortions in many jurisdictions, leave poor, pregnant women “largely isolated in their privacy” (Glendon 1991: 65). By contrast, in Europe, where abortion has been tackled mostly by legislatures, there has been much more social support and flexibility, both to facilitate continuation or overcome the trauma of termination. In other words, we should see “independence” as a democratic right, but, like other such rights, one that, through being subject to democratic approval, we have a collective responsibility to uphold. In sum, the constraining effect of constitutionalism upon democratic processes may not act as a corrective that supports their promoting democratic ends, as its proponents contend. Instead, such constraints may simply undermine the ability of democracy to produce those ends. The constitutionalist’s faith in judicial as opposed to democratic processes is in certain respects paradoxical. After all, we
9 look to judicial processes to mirror democratic processes in certain key respects in order to ensure their equity – we wish access to justice to be equally open to all, for the law to be applied impartially to rulers and ruled alike, for the legal system to be the people’s law rather than just lawyers’ law, for judges and lawyers not to be a caste apart, but to be sensitive to the concerns and circumstances confronting citizens. Many systems even put in place democratic elements within the judicial process, notably trial by a jury of one’s peers, in order to ensure it has these democratic qualities. Indeed, though individual judges are granted independence, the dependence of the judicial system as a whole on democratic pressures has been vital historically to the development and maintenance of the rule of law. Of course, if we regard the rights to be protected by courts as somehow antidemocratic, as not linked to the broad democratic aim of showing equal concern and respect to all citizens, then this weakness may be a strength. Yet that view is one that few are willing to advocate openly.
Constitutionalism as Enabling Democracy A number of theorists accept this critique of constitutionalism and judicial review as a means for promoting democratic outputs, but argue that both can play an important role in securing democratic inputs. Three assumptions motivate this suggestion. First, these theorists maintain review of the democratic process is less controversial than the substantive review of democratic legislative and policy outcomes. Second, they believe that for participants within the current democratic process to adjudicate on the fairness of that same process would conflict with the constitutionalist principle that “no one should be judge in his or her own cause.” Finally, they contend that to argue that the only way a process can be legitimately constituted is through democracy either proves viciously circular or subject to an infinite regress. Each argument will be explored
in turn with reference to the two main theorists of this position: J. H. Ely (1980) and Jürgen Habermas (1996). As we shall see, in each case these theorists seek to correct what they regard as the failings of real “shallow” democratic processes by appealing to the procedures that would be endorsed in, or are necessary for, an ideal “deep” democracy. Ely and Habermas both believe that the ends the political system ought to promote should be decided through a democratic process rather than by a constitutional court. However, they maintain the court does have a role in ensuring that this process is open to all points of view on an equal basis. The difficulty they confront is that this procedural issue also raises substantive issues, many of which are intimately related to the fairness of the outputs of the process and not just of the inputs into it. For a start, there are many different electoral systems all of which are compatible with the formal requirement that each person be given an equal say in the democratic process. Both first past the post (FPP) and a system of proportional representation (PR), such as the single transferable vote (STV), meet the criterion of one person, one vote. Yet each aggregates those votes in a different way, which can produce quite different results. Most analysts of the virtues of these different systems compare them in relation to the context in which they are likely to operate and the sorts of outputs they are likely to generate. For example, in societies characterized by the “crosscutting” cleavages of traditional pluralist theories of democracy, PR and FPP do not produce wildly different results, and both are compatible with reasonably stable government combined with an alternation between different parties or coalition partners. By contrast, segmented societies that are divided along religious or other cultural lines will often produce consistent minorities. Here the case for PR is much stronger so as to ensure these minorities’ views carry some weight. Consequently, the choice between electoral systems is not based purely on input or procedural criteria. As we saw, formally speaking, the inputs of FPP and PR both
10 meet basic criteria of fairness and equity. Instead, the decision will turn, in part at least, on a comparison of the substantive output effects of the two procedures in given circumstances. These difficulties of distinguishing substance from process become even harder when it comes to deciding a particular case. Ely and Habermas argue that a court must ask not whether a given decision is substantively correct but whether it has been duly decided. As Habermas puts it, “a constitutional court guided by a proceduralist understanding of the constitution does not have to draw on its legitimation credit” – it can leave the substance of rights to a democratic process and confine its views to simply adjudicating on whether democratic decisions respect the “logic of argumentation” (Habermas 1996: 279). Yet he defines valid procedures in terms of “the communicative presuppositions that allow the better arguments to come into play in various forms of deliberation” (1996: 278–9). A “consistent proceduralist understanding of the constitution relies on the intrinsically rational character of a democratic process that grounds the presumption of rational outcomes” (1996: 285). In other words, the test for judging the rationality and appropriateness of a given democratic procedure rests on whether it produces rational outcomes. This argument simply undermines the procedural–substantive distinction. Even if this problem is granted, their second concern might still appear to legitimate judicial review in those areas where politicians legislate about the rules of the democratic game. Namely, that where their own interests are involved, politicians ought to delegate such decisions to a neutral third party rather than being “judges in their own cause.” Such cases of self-seeking behavior, notably in the drawing of electoral boundaries, form some of the most compelling of Ely’s examples. Of course, that general argument may hold, without requiring the delegation of this matter to a court but instead to some other independent agency, such as the UK’s Electoral Commission. However, given
that these decisions involve substantive judgements, the problem remains as to how legitimate it is to “depoliticize” them. After all, courts may feel constitutionally obliged to uphold the status quo, yet that might effectively block what may be progressive reforms that have the backing of an electoral majority. For example, whereas the US Supreme Court has often blocked reforms that many see as promoting a fairer and freer election, such as limits on campaign finance, quotas for women and for ethnic minorities, and PR, such moves have been brought about by legislatures where there are no such judicial constraints in the UK, New Zealand, and elsewhere. Here the assumption that the court embodies a “deeper” and more deliberative democratic perspective than the “shallow” democracy of electoral politics once again proves misguided. Being “judge in one’s own cause” is in any case an unavoidable dilemma. Constitutional courts face the same problem when obliged to decide whether they have the competence to decide an issue or not. Yet that is viewed as an integral part of their standing as a supreme court, not a paradoxical and inherently contradictory situation. Much the same goes for legislatures. They are the legitimate channel through which the people can debate and push for reform of the political system, as occurred in the UK throughout the nineteenth and twentieth centuries as the franchise was progressively extended to include all adult male laborers and then women; proportional voting systems were introduced for certain local, regional, and European elections; and devolution introduced for Scotland, Wales, and Northern Ireland. Moreover, it is much harder for an executive to convince the legislature or the electorate to change the political constitution than for a court to effectively alter it through creative interpretation of its provisions. The latter only requires a small majority – in the US case five judges to four. But for the former to be in the same position involves their having convinced millions of citizens and their representatives. In this sense, legislative politics may well need to adopt a deeper form of democracy than judicial decision-making.
11 Meanwhile, similar considerations relate to the supposed infinite regress that is said to bedevil attempts to assure that all constitutional decision-making is undertaken by democratically endorsed rules. According to this argument, at some point a nondemocratic elite must devise the rules of the game and the method by which they are to be popularly endorsed with reference, at best, to democratic principles rather than a democratic process. However, once up and running, any system can rebuild itself piecemeal over time through a continuously recursive process, without continuous reference back to a starting point. That is a fetish peculiar to the US Constitution with its reification of the founding moment. Most other countries with written (or unwritten) constitutions have much easier rules for amendment and engage in a process of periodic reform that reflects current preoccupations, without reference to foundational principles. This argument is sometimes granted but only to the extent that a distinction is made between a “deep” constitutional democratic politics at supposedly rare and periodic constitutional “moments” and a normal “shallow” democratic politics that allegedly lacks these constitutional qualities (Ackerman 1991). It is to this argument that we now turn.
Constitutionalism as Democracy So far we have explored arguments that conceive constitutionalism in terms of a legal framework for democracy. Yet, if we focus on the goals of constitutionalism, there is no reason to regard them as being inherently legal tasks. Indeed, as we have seen, even many legal constitutionalists conceive of these goals as intrinsically related to the inner rationale of democracy. They regard the aim of a constitution to be to ensure that all citizens are treated as political equals: that their views and interests are considered equally and impartially in framing and implementing legislation, with the laws applying equally to rulers and ruled alike, and that basic human rights and the rights inherent in a democratic process are
not unduly constrained by legislative or administrative acts or omissions. Moreover, as we saw, for courts to perform these tasks effectively it is often thought that they must possess certain democratic qualities. However, courts only tend to possess such qualities in societies that have been sufficiently democratized. In nondemocratic societies, the law invariably reflects the perspective of the governing elite. The rule of law may require independent judges, but historical studies suggest it is equally necessary to have a democratically dependent judicial system – one that reflects the norms of a society that has come to accept democratic institutions. Democratic constitutionalists extrapolate from such considerations and argue that democratic institutions themselves possess key constitutional properties. Such arguments reflect a long tradition of the “mixed constitution” that extends from Aristotle’s Politics to the Federalist Papers, which regarded the political system as constituting the polity by bringing together and balancing the different classes of society (Bellamy 1996). On these accounts, the chief danger was factionalism – that a given group might capture the reins of power and rule in its own sectional interest rather than in the public interest. The main mechanism employed by this approach was that of instituting checks and balances between the different classes or sections of society, so that none could rule without the support of one or more of the other groups. Other mechanisms involved selection by lot and short, nonrenewable, terms of office. All three mechanisms were used extensively in the Roman republican constitution, for example. However, although such mixed constitutions usually involved some democratic elements, with certain officeholders being elected by the relevant group or groups, they were both predemocratic and in certain respects antidemocratic (Wootton 2006). In the societies that employed them, the term “the majority” did not yet mean the majority of the entire population so much as the most populous and largest grouping within society – the propertyless and
12 manual workers. The motivation for countermajoritarian checks sprang from the view that this group formed a faction like any other, and a particularly dangerous one for those who possessed property and social privileges. The fear was that the majority would seek to use state power to dispossess the other groups of their material goods and advantages, allegedly to the detriment of society as a whole. The belief that democracy promotes the tyranny of the majority largely reflects this predemocratic cast of mind. By contrast, the democratic version of this thesis deploys the balance of power in part as a means of ensuring the emergence of a majority will, in the modern sense of what is desired by most people across the whole of society (Bellamy 2007: ch. 5). The classic notion of a balance of power had as its goal the preservation of the status quo. Change away from balance was seen as a sign of corruption and the degeneration of society. In many respects, the legal constitutionalist doctrine of the separation of powers inherited this static sense of “balance” and “equilibrium,” whereby no one branch of government was to be captured by another (Vile 1967). However, the democratic version of a balance of power arose in the eighteenth century alongside a more positive and dynamic view of time and change as signaling progress and renewal (Wootton 2006). As in economics and the parallel transformation of the meaning of balance in the understanding of the “balance of trade,” the notion of political balance was now linked to competition. Parties, which had hitherto been viewed as clientelistic factions linked to rival members of the ruling class, became transformed into competing ideological groupings that vied for a share of the whole of the people’s vote in regular elections. The debate between different parties at election time, and between government and opposition postelection within the legislature, became a mechanism for challenging arbitrary power and ensuring political decisions take into account different views and concerns. Against the background of political equality in the form of one person one vote, majority rule
no longer reflects “rule by the largest group” in a segmented society, but rather a fair, neutral, and responsive procedure for impartially and equally weighing the views of all individuals within a community (Bellamy 2007: ch 6). As pluralist democratic theorists such as Robert Dahl (1989) have noted, to work well this system requires a dynamic, modernizing economy and a society characterized by crosscutting cleavages. Such conditions increase the possibility of political deals being win–win and reduce the likelihood of majority tyranny because every electoral majority will be made up of different and changing minorities. The less dynamic the economy and the more segmented the society on cultural or socioeconomic grounds, with little mobility or crossover between the main political cleavages, then the less satisfactory such arrangements will prove. In these circumstances, democratic constitutionalism will need to take on the older notion of balance between settled groups. Schemes such as consociational democracy, federalism, and bicameralism do just this, in order to introduce proportionality and collaboration between groups throughout the entire administration. As with the older system of balance, however, the chief problem with such schemes is deadlock and the institutionalization of a status quo bias that can make reform difficult and renders governing elites less responsive and accountable to changing social views and interests. Constitutional democrats typically contend that a standard democratic process proves too “shallow” to be a forum of constitutional reason. The trading and aggregation of interests typical of electoral and legislative politics needs to be balanced by the “deeper” democratic process of judicial reasoning (Holmes 1995). Democratic constitutionalists counter that democratic politics is not just interest-driven. Politicians need to woo voters by offering reasons and defend their actions on almost a daily basis in both the media and the legislature. True, these reasons are not restricted to the norms enshrined in a legal constitution, but that can be a good thing. The moral issues posed by politics
13 are broader than legal constitutional reasoning can allow, and the full range needs to be explored. Moreover, behind most rights lie important interests and so it is not insignificant that citizens should be able to bring their concerns and views to light. The restrictions of the judicial constitutional forum may misrepresent or ignore the concerns of the wider mass of people. However, politicians are less able to do so. The political process may be far from perfect and declining electoral turnout a cause for concern. Yet, depoliticizing decision-making further risks exacerbating that situation by making democracy seem even less relevant. It seems more logical to improve public engagement with politics by increasing the responsiveness of the political system rather than making it less responsive.
Constitutive Democracy Although constitutional democrats see the legal constitution as framing democracy, some concede a limited constitutional role for democratic politics. They allow that a legal constitution and judicial review can be democratically constituted and authorized through an exceptional process of constitutional politics, culminating in a referendum – possibly involving a supermajority of some kind (Ackerman 1991). From the perspective of the first account, such a constitutional politics mirrors the ideal democratic politics of a social contract. It provides a singular moment whereby a demos binds itself to abide by those values that are deemed to be inherent to a democratic political society committed to treating all citizens with equal concern and respect (Rawls 1993: 231–5). Proponents of this view typically regard constitutional politics as an ideally deliberative exercise in which a constitution is first drafted in a convention and then endorsed by a referendum. By contrast, certain proponents of the second account allow for a more radical and ongoing appeals to the “people” and advocate the unconstituted politics of popular social movements and civil society groups as the legitimate source of a truly democratic constitution
(Habermas 1995: 128). However, it too rests on an idealized image of such abnormal constitutional politics as somehow more authentic and deliberative than normal politics. Democratic constitutionalists challenge the assumptions underlying both these attempts to separate constitutional from normal politics. As we saw, they contend “normal” democratic politics has constitutional qualities deriving from the aforementioned mechanism of the balance of power. Because parties need to construct programmes capable of gaining the stable support of a majority of the voters, they have to balance people’s competing concerns and views against each other in an even-handed way that is responsive to the depth of concern given policies arouse with the electorate. Against the first account, democratic constitutionalists dispute that the people are somehow more rational and lucid at the time of committing to a constitution than they are when debating the election of a party or president. By contrast, they note that constitutional referenda can be centered on populist measures and do not have to be considered in the same balanced way. The electorate are confronted with a simple choice on a proposal that has usually been put forward by an elite with limited and highly selective consultation. As such, it may prove shallower and less constitutional in the procedural sense than normal politics. Certainly, empirical analysis of debates both within actual conventions and the subsequent referenda suggest that self-interested motivations play no less a part in abnormal than they do in normal constitutional politics. Meanwhile, there is the problem that the people who bind themselves at time t 1 are not the same who are bound a generation later at t 2. Although that feature is supposed to encourage a long-term perspective, it may also mean that future generations are saddled with the failed solutions to yesterday’s problems and lack the flexibility required to tackle new problems and the unanticipated consequences of past decisions. The version of constitutional politics favored by the second account may prove less open to these objections, being both less elitist and
14 more flexible. Its main strength lies in highlighting the contestatory character of unconstituted politics, and the importance of informal channels and protest movements for getting new issues onto the political agenda and giving a voice to hitherto excluded groups (Tully 2008). These mechanisms help change the constitution of normal politics. Illustrations include the green movement and the mainstreaming of environmental concerns within the political programs of the established parties, and the feminist and civil rights movements and the inclusion of women and racial minorities in the political process. However, as these examples show, the success of these movements lies in becoming part of a reconstituted normal democratic politics in which the important issues they raise have to be balanced against the range of other issues of concern to the population within a revitalized electoral and legislative process.
Conclusion Each of the three accounts of the links between constitutionalism and democracy has its pros and cons. In fact, most political systems combine elements from all of them. For example, a democratic constitutionalist regime, such as the UK, gives a role to courts in applying democratically enacted legislation, which results in the legal system having a constraining effect on how laws are interpreted in individual cases, ensuring that they meet certain common notions of natural justice in their application if not necessarily their substance. The UK has also had referenda on certain constitutional issues, such as changes to the electoral system and membership of the EU, and even allows by means of an ordinary statute for rights-based review of legislation, albeit with provision for prior legislative review and a parliamentary override of judicial decisions. Likewise, a system of strong legal constitutionalism, such as the USA, also has significant political checks and balances that shape the operation of the democratic process. Moreover, there are important strands of US constitutionalism that
both give priority to the democratic will of the people within constitutive democratic politics, and argue that the Supreme Court is not only empirically deferential to the general trend of normal democratic politics, but also constitutionally constrained by the need to act in comity with the elected president and Congress (Kramer 2004). These combinations can be seen in some ways as allowing political systems to gain the advantages of both legal and political mechanisms. Neither is perfect, and as we saw each can be seen as possessing constitutional and democratic qualities. The key difference lies in where the last voice ultimately lies. Systems, like the USA, with “strong” judicial review, where courts can strike down legislation, give prominence to legal constitutionalism. Those with “weak” review, like the UK and Nordic countries, where the last word rests with parliament, give greater prominence to democratic constitutionalism. Either way, the legitimacy and effectiveness of both constitutionalism and democracy would seem to turn on the one having strong elements of the other and vice versa. SEE ALSO: Constitutionalism; Democracy; Global Constitutionalism; Human Rights; Indigenous Peoples’ Rights; Indigenous Political Thought; Limited Government; Rule of Law ; Separation of Powers References Ackerman, B. (1991) We the People: Foundations. Cambridge, MA: Harvard University Press. Bellamy, R. (1996) “The Political Form of the Constitution: The Separation of Powers, Rights and Representative Democracy,” Political Studies, 44, 436–56. Bellamy, R. (2007) Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy. Cambridge: Cambridge University Press. Buchanan, J. and Tullock, G. (1962) The Calculus of Consent: Logical Foundations of Constitutional Democracy. Ann Arbor: University of Michigan Press. Dahl, R. A. (1989) Democracy and Its Critics. New Haven, CT: Yale University Press.
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