Introduction: towards a weak constitutionalism

1   Introduction

Towards a weak constitutionalism

Constitutional theory has turned its back on democracy. The debate about the relationship between democracy and constitutionalism,1 which promised to expose the limits and undemocratic potential of the latter, has failed to produce a democratic constitutional theory. It has instead resulted in the proliferation of highly sophisticated arguments assuring us that democracy is protected and realised under traditional liberal constitutional forms. How can there be a democracy without the constitutional right to free speech, freedom of association, or the right to vote? How can there be a free contemporary society, one that is able to deliberate and decide on matters of policy and high principle, without elected representative institutions operating under a liberal constitutional framework? When the relationship between constitutionalism and democracy is presented in such terms, all cards appear to be in favour of keeping constitutionalism untouched and re-defining democracy in a way that makes it consistent with the constitutionalist ideal.

Thus, we have been told over and over again, modern constitutions guarantee the rights and institutions that make democracy possible; without them, the very possibility of deliberation and of the creation of a truly democratic will would suffer a fatal blow.2 Moreover, if these rights and institutions need to be expanded, if they need to be made more inclusive and transformative, or if minority protections need to be strengthened, progressive judges and academics will always find novel ways of re-interpreting the existing constitution. And if we are unlucky enough to confront the highly unusual case in which achieving a particular outcome requires a change in a written constitution, government officials can always resort to the demanding – but decidedly organised and reliable – established amendment procedure. That is in fact the beauty of constitutional law: it guarantees democracy and at the same time remains impermeable to the passions of mass politics.

Yet democrats still find something profoundly unsettling about contemporary constitutional regimes. How can constitutions (written or unwritten) claim to enjoy democratic legitimacy, how can they be considered the creation of the people, their work-in-progress, if they can only be changed and interpreted by those occupying positions of power? The participation of ordinary citizens3 in constitutional change – as well as their opportunities for participation – in the world’s most ‘advanced’ democracies (such as the United States, Canada and the United Kingdom) is weak at best: the power of constitutional reform usually lies exclusively in the hands of legislatures. In some cases, constitutional amendments are subject to ratification by the electorate in referendums (which by themselves are very far from exhausting the democratic ideal); in others, citizens are not even allowed to take part in such a low-intensity form of participation before the country’s fundamental constitutional framework can be transformed.

For the democrat, such an approach can only be compatible with an extremely limited conception of democracy. During periods of constitutional change, the often repeated argument that in the day-to-day governance of a large and complex society a genuine realisation of the democratic ideal is impossible or undesirable does not seem that convincing. That is to say, it is true that millions of human beings cannot come together in an assembly (at least not in any politically meaningful way) to discuss and decide on the content of every ordinary law. And it might also be true that even if they were able to do so, or if another mechanism for the participation of the entire citizenry was developed, most people would not be willing to devote part of their already limited time to daily politics. But constitutional change is episodical by nature; it takes place (or should take place) in exceptional moments in which there is wide interest and support for important juridical transformations. This special feature of constitutional change seems to make more likely the success of novel forms of democratic engagement.

Moreover, while some rights can be seen as constitutive of democracy (as they allow citizens to engage in public discussion and in different forms of political participation) and other rights may be understood as guaranteeing a private sphere that allows citizens to explore different conceptions of the good, a traditional liberal constitution does much more than protecting these types of rights. Constitutions also contain provisions that organise the structure of the state, establish or facilitate certain forms of economic (de)regulation, or limit the duties of government towards citizens in ways that do not seem to be connected to the realisation of democracy. Can a constitutional regime that contain these (non-democracy-enabling) types of norms and whose modification is out of the scope of the decision-making power of popular majorities be considered legitimate from a democratic perspective? If not, is there a way of making contemporary constitutional regimes democratically legitimate? Can constitutionalism be reconceived in a way that is more consistent with fundamental democratic principles?

In considering and providing answers to these questions, this book has two main objectives. First, it seeks to show that ordinary citizens’ lack of opportunities to re-create ‘their’ fundamental laws, to engage in acts of democratic re-constitution, puts into question the democratic legitimacy of the constitutional regimes under which they live. Second, it aims to provide alternatives to overcome that deficit of democratic legitimacy. These alternatives would give citizens the means to propose, deliberate and decide upon important constitutional transformations through extraordinary mechanisms that work independently of a constitution’s ordinary amendment procedure. The first objective is mostly theoretical: it requires an analysis and critique of the ways in which concepts such as constitutionalism, democracy, constitutional change and democratic legitimacy are understood and deployed in constitutional theory. In advancing that objective, the book challenges the traditional understanding of these concepts and proposes a conception of constitutionalism – weak constitutionalism – that requires constitutional regimes to provide an opening, a means of egress, for constituent power to manifest from time to time. In that sense, it must be stressed from the beginning that this is not a book about the legitimacy of judicial review of legislation (the problem of democratic legitimacy would continue to exist even in the absence of the institution of judicial review of legislation), but is instead about the ways in which the democratic legitimacy of a constitutional regime depends on its susceptibility to democratic re-constitution.

The second objective has a more comparative bent. An important part of the identification and development of proposals that seek to increase the democratic legitimacy of contemporary constitutional regimes lies in the critical exploration of institutions and understandings – already existing in some countries – that point towards (or away from) that direction. In that respect, although the book will mostly engage with Anglo-American constitutional theory, it has a significant comparative component. It will not only examine the kinds of institutions that characterise traditional liberal constitutional systems, but also the mechanisms for popular constitutional change present in the new ‘populist’ constitutions of Latin America (as well as their explicit theoretical grounding on the concept of constituent power). By achieving these two objectives, the book attempts to prepare the ground for a democratic constitutional theory. In what follows, I will briefly introduce some of the ideas that play an important role in later chapters, as well as outlining some of the arguments and themes that will be examined throughout the book.

Democratic Constitutionalism

What does it mean to advance a democratic conception of constitutionalism? The question is not easy to answer. On the one hand, ‘democratic’ (like democracy itself) is one of the most contested terms of our political culture. To characterise something as democratic or non-democratic is to invite a discussion about what democracy really means. On the other hand, discussions about constitutionalism might include topics as disparate as when and how a constitution should be amended, what theory of constitutional interpretation should guide judges in a democracy and whether the institution of judicial review of legislation can be justified in a democratic society. Thus, to propose a democratic form of constitutionalism can be understood as equivalent to defending mechanisms of popular participation in constitutional change, arguing in favour of a theory of constitutional interpretation that respects the values of present generations, or claiming that the elected representatives of the people, rather than judges, should have the last word on the meaning and scope of a constitutional provision.

There is, however, something common to these apparently dissimilar approaches: in their own ways, they are attempts of making the content of constitutional law more accessible to the people and increasing popular involvement in constitutional change. If discussions about democratic constitutionalism are understood in this way, then calls to democratise constitutionalism are more than two centuries old. However, these calls have consistently failed and, not surprisingly, they have begun to fade away, while the very issues at stake have been transformed in important ways. Take, for instance, the constitutionalism–democracy debate in the United States. Since the founding of that country in the eighteenth century, there is a continuing debate, still very much alive today, about how the constitutional system should ‘balance’ constitutionalism and democracy. This debate has come in different waves: the first wave focused on whether present-day majorities should be allowed to abandon the constitutional forms created by the founders;4 the second focused on the legitimacy of judicial review of legislation and on selecting from different theories of constitutional interpretation;5 and the third focused on the exclusivity (or non-exclusivity) of the US Constitution’s amendment rule.6 Depending on the position one takes in those waves of the debate, it could be argued, one moves closer to or further away from a democratic form of constitutionalism.

Nevertheless, although those engaged in each of these waves made important contributions to constitutional theory, there was something special about the earliest wave of the debate. Freed from the questions of interpretation and the never-ending controversy over the legitimacy of judicial review, the protagonists of that debate (the US ‘founding fathers’) were able to consider the relationship between constitutionalism and democracy in its raw form: Should popular majorities be allowed to alter the constitution?7 As we know, the answer to that question can be understood as democratic constitutionalism’s first defeat. Institutionally, the answer came in the form of Article V, the US Constitution’s amendment rule, which not only created almost insuperable constraints on constitutional change, but also placed the amending power exclusively in the hands of government officials. A number of constitutional theorists and political scientists have since criticised the rigidity of Article V.8 However, the constitutionalism–democracy debate in the US has moved away from its initial interest in the desirability (or undesirability) of allowing popular majorities to decide what should be the content of their constitution. Article V has become an inescapable default; the task now seems to be finding arguments for making constitutionalism consistent with democracy despite Article V.

Of course, there is nothing wrong with developing new approaches to constitutional interpretation, or with attempting to show that judicial review of legislation might be understood as one of the essential institutions of a liberal democracy. These are, in fact, very important issues but, having a weak connection to the (original) emphasis in popular involvement in constitutional change, they are also further away from the core issue of democratic constitutionalism. That is to say, even if judicial review is abolished (or even in the context of an unwritten constitution that operates under the doctrine of parliamentary sovereignty) and, regardless of what theory of constitutional interpretation is adopted, the question of whether popular majorities (as opposed to government officials sitting in a legislature) should be allowed to decide on the content of their constitution would still remain. And democratic constitutionalism requires that we confront that question directly, in its raw form. Of course, there is no final or technically correct answer to it: what democratic constitutionalism means is, in the last instance, a profoundly political issue. The answer will invariably be influenced by one’s level of comfort with popular involvement in the production and re-production of the fundamental laws, with what one thinks about people’s ability to approach substantive issues with an open mind and to deliberate with those that disagree with their views; it is not simply a question of constitutional theory.

It is thus not surprising that democrats and constitutionalists of different persuasions differ greatly on what a democratic constitutionalism would entail. This book argues that a democratic conception of constitutionalism should rest on the idea that ordinary citizens must be allowed to propose, deliberate and decide upon important constitutional transformations through the most participatory methods possible. This conception, which I call ‘weak constitutionalism’, seeks to take the constitutionalism and democracy debate onto more democratic ground. In a way, and as I suggested above, it can be understood as an invitation to return to the questions addressed during the first wave of the constitutionalism–democracy debate in the US. It rests on what can be identified as a ‘strong’ or ‘participatory’ conception of democracy; one which contrasts with the ways in which the dominant conception of constitutionalism operates.9 As will be argued in Chapter 2, this prevailing view is characterised by an obsession with the permanence of the constitutional forms and a fear of constitutional change. According to that conception, a constitution that contains the right content – a good, constitutionalist constitution – should also be a finished constitution (one that can be updated through judicial interpretation but whose content and the fundamental structures it creates should remain more or less intact). Such a view sees the possibility of intense popular participation in constitutional change as undesirable at best and dangerous at worst. It also sees it as unnecessary in a stable and just political order.

Democracy and the Fundamental Laws

This book starts with the assumption that contemporary societies should aspire to the realisation of a participatory conception of democracy. It sees the value of such a conception as directly connected to the ideal of self-rule, as allowing a group of human beings to rule themselves as free and equal citizens (as opposed to a system in which a popular majority is ruled by an external power or a self-imposed elite). But what does democracy have to do with constitutional change? Constitutions establish either democratic or anti-democratic forms of government. From a certain point of view, the question of how a constitution was created and how it can be re-created appears as a secondary concern or, more stridently, as democratically irrelevant. If you want to find out whether a country is democratic or not, you don’t look at its constitution-making record or its constitutional amendment formula: you look at whether that country’s laws and institutions provide for frequent elections, whether citizens are allowed to associate in different organisations (including political parties) and to express their political opinions without fear of punishment. This is, of course, true: any country that calls itself a democracy must have those characteristics. Nevertheless, those features only refer to what can be identified as the ‘first dimension’ of democracy: democracy at the level of daily governance. This book, however, will mainly deal with the second dimension of the democratic ideal: democracy at the level of the fundamental laws. I briefly develop this distinction below and will examine it in more detail in Chapter 3.

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