4 Democracy’s Principles
In the previous chapter I argued that the second dimension of democracy is primarily concerned with the following questions: (1) Is this constitution the result of a democratic process? (2) Can this constitution be altered through democratic means? This chapter will consider the question of what kind of political practices amount to a democratic process, to an act of democratic re-constitution, by defending a particular conception of democracy.1 This conception rests on two basic principles: democratic openness and popular participation. Briefly put, these principles mandate that all laws, including the fundamental laws, are always susceptible to reformulation and replacement, and that changes take place through participatory procedures. Popular participation and democratic openness, although relevant in the context of democratic governance, acquire a much more important dimension in the context of the second dimension of democracy. The reason is as follows: the second dimension of democracy, due to its episodical character, makes the realisation of the basic principles of democracy both possible and desirable. A regime consistent with the idea of democracy at the level of the fundamental laws would thus be characterised by mechanisms that facilitate highly participatory constitutional transformations. This chapter will flesh out the content of what I have identified as the basic principles of democracy and explore the ways in which they are negated in constitutional theory and practice.
The Principle of Democratic Openness
Constitutionalism’s aspiration to permanence, as well as the political practices it produces is, at the very least, at odds with democracy and, in the worst case, incompatible with it. In fact, if my depiction (in Chapter 2) of constitutionalism and of its accompanying ideology is accurate, democrats stand for all that constitutionalists fear. It is true that democracy is one of the most contested terms of our political culture, and that it is far from clear what democracy requires in the context of large and complex societies. There are some basic principles, however, that are inherent to the principle of ‘the rule by the people’ (democracy’s specific and literal meaning).2 Once one begins to depart from these principles, democracy quickly becomes something else. The first of these principles is that a democratic society should be an open society; that is, one in which even the fundamental laws are not only open for discussion, but always susceptible to being reformulated or replaced. Democratic openness welcomes conflict and dissent, and it is incompatible with unchangeable – or virtually unchangeable – constitutional provisions. To paraphrase Cornelius Castoriadis, a democratic society is “not a society that has adopted just laws, once and for all, rather is a society where the question of justice remains constantly open”.3
Democracy put slightly differently, is about a citizenry that is allowed to have any constitution it wants. As Sheldon Wolin has put it, “democracy should not depend on elites making a one-time gift to the demos of a predesigned framework of equal rights”.4 The conception of an open society is directly related to the idea of the ‘rule by the people’ in one fundamental sense. To say that the people rule themselves is to say that they are a ‘self-governing’ people: a group of human beings that come together as political equals and give themselves the laws that will regulate their conduct and the institutions under which they will live. This involves two important and related points. First, for these rules to be the people’s own, it must be today’s people who rule, not past generations, however wise or well-intentioned their act of constitution-making was, or whatever the content of the provisions they adopted. In that sense, Stephen Holmes’ pre-commitment (discussed in Chapter 2 and perfectly attuned to the logic of constitutionalism) cannot be brought to a final reconciliation with democracy because a self-governing people must be able to reformulate their commitments democratically.
Second, for there to be democratic self-rule, no rule can be taken for granted or removed from critique and revision.5 Democracy, as Claude Lefort has argued, allows “no law that can be fixed, whose articles cannot be contested, whose foundations are not susceptible of being called into question”.6 The idea of placing stringent requirements for constitutional amendments, or of placing part of the constitutional text outside the scope of democratic politics, is clearly at odds with the principle of democratic openness. The principle of democratic openness, particularly in the context of constitutional change, is highly compatible with majority rule. Any supermajority requirement would express an undemocratic bias in favour of a constitutional status quo, the potential closure of a constitution in whose creation citizens might not even have participated (e.g., because they were not allowed to do so or because they were ‘born’ into an already existing constitution). This openness, of course, is always an ‘imperfect’ openness, because for there to be critique and revision, the institutions and rights that make such activities possible must be respected (whatever the form these institutions and rights may take).
These limits to democratic openness, however, are the limits of democracy itself. Consider the case of a people deciding to abolish a constitution that provides for institutions facilitating democratic self-rule and, instead, empowering a sovereign dictator. In this kind of situation, one must distinguish between the procedure by which a decision is taken (e.g., a democratic procedure) and its outcome or, as Jeremy Waldron has put it, between democratic means and democratic ends.7 Thus, if a people chooses to establish a dictatorial regime according to which a single individual is granted full legislative and constitution-making power, it does not follow that this regime would be democratic – even if it was democratically created.8 These people would not simply have supplanted one set of institutions for another. Such a regime would be in violation of the very idea of democracy: it would preclude the possibility of ‘rule by the people’ (in other words, it would be inconsistent with the first and second dimensions of democracy).9 To say that in a democracy everything is open for replacement, then, is to recognise that democracy always involves the risk of replacing itself. As expressed by Castoriadis: “In a democracy people can do anything – and must know that they ought not to do just anything. Democracy is the regime of self-limitation; therefore, it is also the regime of historical risk – another way of saying that it is the regime of freedom – and a tragic regime”.10
Democracy, there should be no doubt about it, is always a risk, but a risk that a democrat – to remain a democrat – has no choice but to accept. One might argue that it is precisely because of the risks associated with democratic openness that there exist constitutions, fundamental and supreme laws, and that the ideal of the ‘rule of law’ as opposed to the ‘rule of men’, is cherished. In other words, this is why constitutions must be difficult to change, and the reason for only altering them “reluctantly and as the last resort”.11 Having a written and entrenched constitution should then be seen as a way of providing some security against different types of democratic excesses, including the very abolition of democracy. But that answer greatly overestimates written and entrenched constitutions, as many public lawyers operating under an unwritten constitution and a system of parliamentary sovereignty would quickly point out: such systems have generally been successful in maintaining a democratic form of government in place. Moreover, once a political movement is sufficiently strong to violently (and undemocratically) replace a constitutional regime, legal principles (national or international) are not difficult to surpass. In that sense, if there are some forms of oppression that we consider unthinkable in contemporary liberal societies, it is not because there are laws or constitutions against such practices, but because it would be hard to imagine any group or individual with a political force capable of imposing them.
Castoriadis is again on point: “If we can be reasonably certain that the re-establishment of slavery tomorrow in the United States or in a European country is extremely improbable,” he writes, “the ‘reasonable’ character of our forecast is based not on the existing laws or constitutions (for then we would be simply idiotic) but on a judgment concerning the active response of a huge majority of the people to such an attempt.”12 Under this view, the enjoyment of the rights and institutions that are usually associated with democracy are less the consequence of the entrenchment of the relevant legal and constitutional protections than a result of what may be identified as a “political culture of mutual respect”.13 Every constitutional regime unaccompanied by a democratic culture, no matter how liberal its constitution and how stringent its procedures for constitutional change are, is always at risk. The twentieth century is full of examples.14 A constitutional regime consistent with the principle of democratic openness and accompanied by a culture of political equality is also at risk (as there are no institutional or social arrangements that can guarantee that grave abuses and injustices will not be committed),15 but at a lesser risk than a constitution whose only chance to survive depends of putting democratic politics in an institutional straitjacket.
This does not mean, however, that democratic openness recommends the establishment of a sovereign parliament which is free to make any legal or constitutional changes it deems appropriate. From the perspective of democratic openness, parliamentary sovereignty might be the best institutional arrangement in the context of day-to-day governance, but it is highly problematic in the context of democracy at the level of the fundamental laws (which means that the traditional doctrine of parliamentary sovereignty cannot be made entirely consistent with the principle of democratic openness). Such an arrangement might be consistent with ‘openness’ but not necessarily with a democratic form of openness.
As we will see below, democracy requires that those subject to a constitutional regime are also its authors, in the sense of being allowed to deliberate and decide on its content through the most participatory procedures possible (which, as we will see later chapters, will vary according to the particular context and type of change).16 In that respect, even if one considers that democratic openness is realised by a system of parliamentary sovereignty in the context of the first dimension of democracy, this very principle does not allow one to conclude that parliament should be able to engage in the activity of constitution-(re)making, even if subject to special procedural hurdles. Episodes of important constitutional change make possible a fuller realisation of the principle of democratic openness, for they allow ordinary citizens to engage in more direct ways in the activity of constitutional reform.
The Principle of Popular Participation
That democracy requires popular participation in the positing of the law is almost axiomatic. Democratic self-government not only entails a “community of citizens – the demos – [that] proclaims that it is absolutely sovereign” (i.e., the principle of democratic openness); it also involves an affirmation of the “equal sharing of activity and power” of all citizens.17 As with the principle of democratic openness, popular participation is highly compatible with majority rule (as the only decision-making rule that gives every vote an equal weight). In other words, popular participation demands that participants in a decision-making process use a voting rule according to which their “ ‘yes’ and ‘no’ count equally”. 18
Now, if democracy is about people ruling themselves as equals, about a group of human beings self-determining the conditions of their political association, the idea that they should be allowed to participate, in some way, in the creation of the rules to which they will become subject is uncontroversial, at least for the democrat. As Waldron has expressed, democracy requires “participation by the people – somehow, through some mechanism – on basically equal terms”.19 What remains controversial is how much participation, and by what means, is necessary for one to conclude that the principle of popular participation is being taken seriously.
In order to answer that question, and instead of proceeding through an examination of different conceptions of democracy and their approaches to the question of participation,20 I propose to begin by considering the meaning of the principle of popular participation in the context of an ideal democracy; that is, a democracy free from the practical problems present in contemporary societies (e.g., problems of scale, lack of public interest, etc.) that contemporary conceptions of democracy try to accommodate. In such an ideal democracy (the favourite example of democratic theorists is, of course, the fifth-century Athenian Assembly), all citizens are allowed to participate directly in the activity of law-making. In other words, in an ideal democracy, the principle of popular participation equals direct (assembly) democracy: a democracy in which all citizens come together, deliberate and decide on the content of the law. Needless to say, not everyone has always been fond of such an ideal. For eighteenth-century critics of democracy (for which democracy almost invariably meant ‘direct democracy’),21 this conception was necessarily problematic: it presupposed that the lower classes of society would be granted political power, which was considered by itself a very good reason for discomfort.
For example, Alexander Hamilton, who defended a distinction between the ‘will of the people’ and ‘the will of the legislature’ in order to defend judicial review of legislation, did not think very highly of popular assemblies. “Are not popular assemblies,” he asked, “frequently subject to the impulses of rage, resentment, jealously, avarice, and of other irregular and violent propensities?”22 Most contemporary democrats, however, explicitly or implicitly assume that a ‘direct assembly democracy’, in which the entire citizenry is allowed to decide and deliberate about the content of all laws, is the ideal, yet unrealisable, form of democracy. For instance, Joshua Cohen and Charles Sabel have recently attempted to find a “direct and deliberative alternative to assembly democracy”23 that is workable in a contemporary society. In a similar vein, John Burnheim identifies the “main practical problem about democracy” by the fact that “in any full-blooded sense ‘government of the people, by the people, for the people’ seems impossible in any but the narrowest range of circumstances”. 24
Burnheim, Cohen and Sabel, of course, are highly critical of traditional forms of representative democracy. Nevertheless, even theorists who see representative democracy as a desirable form of democratic organisation (as opposed to a defective substitute for real democracy) criticise ‘direct assembly democracy’ for its failure to live up to the principle of popular participation. Nadia Urbinati, for example, defends representation as “both necessary and desirable” for participation and, in suggesting that direct democracy is not the best form of democracy, she stresses that “the direct presence of all citizens did not prevent the Athenian ekklesia from being an assembly in which the large majority abstained from fully active participation”.25 That is to say, the majority of the citizens present in the assembly limited themselves to listening to particular orators and voting on their proposals instead of speaking and engaging in real deliberative practices. As Urbinati’s criticism of Athenian democracy suggests, in an ideal democracy citizens not only reject or accept particular proposals through a ‘yes’ or ‘no’ vote. The ideal democracy is also deliberative: it requires an assembly composed of all those to whom the laws will apply, and in which participants not only decide on the laws that will be passed (as in a referendum) but also deliberate on their content (as in a properly functioning, deliberative assembly).
An ideal democracy brings together what Cohen and Archon Fung have identified as two different strands of democratic thought.26 The first one, which they associate with Jean Jacques Rousseau, mandates broad citizen participation in political decision-making. The second one, associated with Jürgen Habermas, argues in favour of an increase in deliberation: citizens should address common problems by reasoning together and exchanging arguments. Put another way, the ideal democracy, a direct democracy, is the full realisation of what Cohen and Fung identify as radical democracy.27 Now, the unfortunate result of the complexities and size of contemporary societies has been that direct democracy has become equivalent to the referendum. As a mechanism of popular participation, however, referendums leave much to be desired. In particular, they do not meet one of the defining features of radical democracy: referendums only allow citizens to decide on the content of a particular proposal through a ‘yes’ or ‘no’ vote, but do not necessarily involve the level of deliberation present in an assembly. This does not mean that referendums are incompatible with the principle of popular participation, but that they must be surrounded by other – formal or informal28 – modes of deliberation in order to truly contribute to a democratic process.
As Margaret Canovan has argued, the value of a referendum (whether initiated by citizens or by government) “is due not so much to the referendum procedure as to the popular mobilization that has taken form around it”.29 Even if the problem of the lack of deliberation was not present (as well as other issues such as the problems of low turnouts, the undue influence of media campaigns and varying degrees of intensity in the preferences of different groups),30 making the adoption of every law dependent on a special election seems like a highly unattractive (and costly) form of government.31 Not surprisingly, scholars committed to democracy have attempted to develop new ways of increasing citizen involvement in the context of daily governance that address the difficulties presented by referendums.32 We have thus lately seen an increase of proposals such as citizen juries and deliberative polls, in which randomly selected citizens deliberate and issue proposals on particular policy issues.33 To the extent that these mechanisms do not usually give participants real decision-making power but merely serve as a means to ‘discover’ what the entire citizenry would decide after a proper deliberative exercise, they are best understood as democratic simulations.34
Nevertheless, what unites these types of proposals is an attempt to create a mini ‘direct assembly democracy’, to produce a situation that mimics what citizens would do if they were able to come together to participate in and deliberate on the creation of the laws. And, as suggested above, this is precisely what the principle of popular participation requires: to make public decision-making procedures as participatory as possible. In this respect, the principle of popular participation is neither at odds with representative democracy nor should it be taken as a recommendation for its abolishment. In fact, in the context of day-to-day governance, the principle of popular participation is entirely consistent with processes of ordinary law-making that mainly take place through traditional representative institutions, as the problem of scale would make it practically impossible to implement a system in which citizens directly decide and deliberate on the content of every single piece of legislation. Of course, in a few local government and regulatory contexts, in which the problem of scale is significantly ameliorated, meeting the demands of the principle of popular participation could, in fact, mean having an assembly conformed by all those affected by the relevant ordinance or regulation.
Even in the context of ordinary law-making for an entire country, one could sometimes make use of a combination of citizen juries, initiatives and referendums. However, any combination of these mechanisms would only be used sporadically, perhaps in the context of particular controversial issues, as it would be impracticable to subject the validity of every law to it having been proposed by citizens through a popular initiative, considered by a citizen jury and directly ratified by the electorate. Interestingly, the episodical nature of democracy at the level of the fundamental laws presents a more welcoming environment for the use of mechanisms of popular participation. That is to say, when new constitutions are created or existing ones need to be transformed in important ways, a rare opportunity to experiment with highly participatory procedures presents itself. As will be seen in the next chapters, the fact that most constitutional regimes miss these opportunities has a negative effect on their democratic legitimacy.
Although the previous paragraphs treated the limits to the realisation of the principle of popular participation as mainly a problem of scale, we know that this is not the only problem faced by any attempt of increasing popular participation in politics: citizens’ lack of interest might prove fatal to any attempt at furthering the democratic character of a polity. Although the general trend towards a decrease in voter turnout in the world’s most advanced ‘democracies’ is certainly disturbing, I agree with Roberto Mangabeira Unger when he says that “the level of popular participation in politics is not an elusive and unyielding cultural fate, summarily reflecting the history of a people”.35 Put differently, political apathy might not be the cause (or the only cause) for the lack of participatory mechanisms but, at least in part, the result.
Like Unger, I remain confident that “a few relatively modest institutional changes would be likely to heighten popular engagement in democracies that now seem de-energized”.36 This is why the dominant approaches to the relationship between democracy and constitutionalism (which are decidedly inclined towards realising the latter) are deeply unsatisfactory.
Negating Democratic Openness
The principle of democratic openness is negated in important ways by the logic of constitutionalism. This occurs both at the level of constitutional theory and at the level of constitutional practice (i.e., in the way in which the constitutions of existing democracies approach constitutional change). This section will begin by examining two general strands of constitutional thought. The first one defends interpretation as the proper means of updating the meaning and scope of constitutional protections. I associate that view with theories of ‘living-tree’ constitutionalism, which will be exemplified through an examination of Wil Waluchow’s common law theory of judicial review.37 This approach is important since, unlike the traditional constitutionalist aspiration to permanence, it insists that constitutions should not be seen as frozen documents, but as susceptible to growth. According to some accounts, social movements have an important role to play in the development of a living-tree constitution. After considering this approach’s inconsistency with the principle of democratic openness, I will examine the ways in which this basic democratic principle is negated by the typical amendment rules of the constitutions of countries that are, by and large, considered to be well-functioning constitutional democracies.
Waluchow’s defence of living-tree constitutionalism, at first sight, might be taken as an attempt to find a place for the principle of democratic openness in a world dominated by the traditional constitutionalist predisposition in favour of the established constitutional regime. In fact, Waluchow argues that entrenched bills of rights (enforced by judges) should not be seen as providing a fixed point of agreement on the extent of governmental powers, or as a pre-commitment about certain limits to majoritarian decision-making.38