Conclusion

10    Conclusion

I stated in the introduction that contemporary constitutional theory has turned its back on democracy, and my intention in the previous nine chapters has been to present a constitutional theory that directly confronts the demands imposed by the democratic ideal. In presenting such a theory, I attempted to avoid the all-too-common route of providing an interpretation of the democratic ideal that weakens democracy in significant ways in order to make it consistent with liberal constitutionalism. Instead, I defended a strong and participatory conception of democracy, then took the unorthodox approach of developing an alternative conception of constitutionalism – a ‘weak constitutionalism’ – that can live up to democracy’s demands. The approach presented here does not come accompanied with a promise of any final reconciliation between constitutionalism and democracy. On the contrary, it recommends a set of constitutional forms that make the tension between these two ideals even more obvious. That is to say, it requires a constitution that remains permanently open to future exercises of constituent power: a constitution according to which a departure from constitutionalism is episodically warranted and in which citizens are always free to exercise their democratic right to (re)create the constitutional regime. Only such a constitution, I have argued, would ever come to enjoy democratic legitimacy. The previous nine chapters developed these ideas, and these are the main conclusions that follow from them:

a.  Constitutionalism and democracy cannot be brought to a final and happy resolution: the former is about limiting political power, the latter about an unlimited (popular) political power. As a result of this tension, the democratic legitimacy of constitutional regimes is called into question.

b.  Constitutionalism is characterised by an aspiration to the permanence of the established constitution. Although constitutions are sometimes seen as protecting the pre-conditions of democracy, they also establish structures and promote institutions that have little or no connection to the democratic ideal, and that in many cases conflict with it.