3 The Second Dimension of Democracy
When someone is asked to identify a constitution as ‘democratic’ or ‘not democratic’, she would usually put forward either one of two kinds of claims. She might, for example, point towards the ways in which the regime’s laws and institutions are consistent with a particular interpretation of the idea of the ‘rule by the people’. For instance, if these laws and institutions treat citizens equally and allow them to participate in everyday decision-making (that is, if the regime guarantees the protection of what I identified in the previous chapter as ‘fundamental rights’), she might defend that regime on democratic grounds. But one can also take a different route and argue that if the regime’s laws and institutions are the result of what is thought to be a democratic procedure (e.g., an elected legislature that functions according to the principle of majority rule), the regime has sufficient democratic credentials. The first of these approaches can be identified as ‘substantive’ and the second as ‘procedural’. According to the first approach, a democratic regime would operate under a constitution that guarantees the enjoyment of certain rights. For example, a regime in which citizens can be arbitrarily arrested or cannot organise themselves for political purposes would not normally be identified as a ‘democracy’. According to the second approach, a regime that provides for frequent elections and operates according to the doctrine of parliamentary sovereignty might be identified as democratic even if it sometimes produces valid laws inconsistent with fundamental rights.
The objective of this chapter is to show that these two traditional approaches tend to obscure the relationship between citizens and their constitution. That is to say, they only look at one dimension of democratic life: democracy at the level of daily governance. Democratic governance has to do with the adoption of ordinary laws and the administration of a state’s bureaucratic apparatus. This is why it is of the utmost importance for all democratic theorists and why, when one distinguishes between ‘democratic’ and ‘non-democratic’ countries, one typically uses it as the basic frame of reference. After all, why care about who adopted the constitution and who can change it if citizens enjoy liberal protections and can participate in the regular election of government officials? However, if we are to look at the ways in which citizens are allowed to constitute and re-constitute the juridical order, then we must look beyond democratic governance. And that is exactly the case of this book, since to examine the democratic legitimacy of a constitutional regime is to examine the opportunities that the regime provides for democratic re-constitution.
The second dimension of democracy, democracy at the level of the fundamental laws, is thus directly connected to the question of democratic legitimacy: to defend the democratic legitimacy of a constitutional regime is to say that citizens have the means of re-constituting it through democratic means whenever they wish. This chapter will argue that this second dimension is commonly neglected in traditional procedural and substantive approaches to democracy, as well as in the constitutional arrangements consistent with those approaches: the American system of constitutional supremacy and the Commonwealth system of parliamentary sovereignty. The chapter begins by introducing the distinction between democratic governance and democracy at the level of the fundamental laws. It then examines the work of two selfproclaimed democrats: Jeremy Waldron and Ronald Dworkin, the former a proceduralist and the latter a substantivist, and argue that they approach the first dimension of democracy as if it exhausted the democratic ideal and, as a result, they ignore democracy at the level of the fundamental laws.
At the level of actual constitutional practice, a similar problem is present in the American and Commonwealth approaches to democracy. These constitutional orders identify themselves as ‘democratic’ because they seem to satisfy the (minimum) conditions of democracy at the level of governance, even though they negate the second dimension of democracy. As a result, and as will be shown throughout this book, they are characterised by important deficits of democratic legitimacy. In contrast to what these theories and arrangements suggest, this chapter will maintain that democracy at the level of the fundamental laws should be understood as a moment in the life of a juridical arrangement: the moment in which important constitutional transformations take place and in which popular sovereignty comes closer to being exercised. Under this view, exemplified in the work of Sheldon Wolin, democracy is not seen as a form of government contained and embodied in a constitution (democracy always escapes constitutionalisation). Democracy (in what I call its ‘second dimension’), on the contrary, should be seen as a political practice that involves the exercise of constituent power.
The Two Dimensions of Democracy
Democracy is a multidimensional ideal. In the context of law-making, its two dimensions – democracy at the level of daily governance (first dimension) and democracy at the level of the fundamental laws (second dimension) – relate, respectively, to the production of ordinary laws and the production of the fundamental laws.1 Both dimensions are necessary for the existence of a fully democratic constitutional regime but, from the perspective of the day-to-day lives of citizens, the realisation of the first dimension of democracy is more urgent. Moreover, while the exercise of democracy at the level of the fundamental laws in many ways depends on the existence of a vibrant system of democratic governance, it is the second dimension of democracy that is more closely connected to the democratic legitimacy of the constitutional regime: if the regime is inconsistent with the idea of democracy at the level of the fundamental laws, its democratic legitimacy is inevitably put into question.
When people say that a certain country is ‘democratic’, they are usually referring to democracy at the level of daily governance. That is, they are suggesting that that country’s laws and institutions provide for frequent elections, that citizens are allowed to associate in different organisations (including political parties) and to express their political opinions without fear of punishment. In short, they are simply making the observation that the country in question satisfies the requirements of what Robert Dahl has identified as a polyarchy.2 For most democrats (including Dahl), these requirements fall short of exhausting the democratic ideal. Nevertheless, some suggest that while this is the case, in large and complex societies a polyarchy is the most democratic system that one could realistically aspire to.3 Others, however, would insist that countries normally identified as ‘democratic’ could, in fact, be ‘democratised’ in fundamental ways (for example, by providing more opportunities for direct citizen involvement in the formulation of governmental policy).4 Democratic governance is thus about the daily workings of a state’s juridical apparatus, about the processes that result in the adoption of ordinary laws and regulations and about the content of the fundamental laws.
For example, most claims that judicial review of legislation is undemocratic are made at the level of democratic governance. These claims usually stress the fact that judicial review leaves important decisions in the hands of judges, and that democratic principles require that legislatures, as the duly elected representatives of the people, be the ones called to make those decisions.5 The processes through which ordinary laws and policies emerge are also a matter of this first dimension of democracy, and the composition and representative nature of legislatures is the main focus of the kind of critiques that address these processes. For instance, an unelected upper house (like the Canadian Senate or the British House of Lords) and the debate over districting in countries such as the United States, are problems of democratic governance, as well as issues like restrictions on campaign finances, proportional representation and the equal treatment of citizens by a state’s bureaucratic apparatus. By the same token, the role citizens are allowed (or not allowed) to play in the adoption of ordinary laws and in the workings of the legislative assembly is also a matter of this first dimension of democracy. Are citizens allowed to submit initiatives to parliament? Can they petition the recall of particular legislators? What other institutions allow or promote citizens’ involvement in ordinary law-making and the formation of state policies?
Although (as we will see in the next chapter) democracy mandates the existence of extensive opportunities for popular participation in politics, in the context of democratic governance this basic democratic principle can only be realised in limited ways. For practical reasons (e.g., the size and complexities of modern societies), the role of different mechanisms that facilitate popular participation (such as citizen assemblies and popular initiatives) cannot assume a central role in the production of ordinary laws and the formulation of a state’s policies. In that sense, ordinary representative institutions and bureaucrats will typically occupy a privileged position in the exercise of democracy at the level of governance. Nevertheless, this in no way means that popular participation is not important in the context of this first dimension of the democratic ideal. On the contrary, and as the previous examples suggest, most demands made at the level of democratic governance are about increasing the extent to which the constitutional regime facilitates different ways of citizen intervention in the day-to-day life of the polity.
But democratic governance is not only about the production of ordinary laws and about the processes in place for making political decisions. It is also related to the content of a constitution in important ways: Does the constitution provide for universal suffrage? Does it establish an elected legislature? Does it respect fundamental rights? As we saw in the previous chapter, if in the context of a particular constitutional regime those questions are to be answered in the negative, no form of democracy would be possible. In short, democracy at the level of governance is about the way a constitutional regime works in a day-to-day basis. Because of its impact on the daily lives of individuals, a lack or deficit of democratic governance in a determinate country is more pressing for its citizens than a problem of democracy at the level of the fundamental laws. Nevertheless, only the citizenry of a strongly democratic polity, accustomed to vigorous democratic debate and participation in the production of the law and to the exercise of their political rights, is likely to engage in the democratic re-constitution of the constitutional regime (which, as discussed below, is what the second dimension of democracy is about).6
Democracy at The Level of The Fundamental Laws
The second dimension of democracy deals with other questions. It is not about the daily workings of the state’s political apparatus, but about the relation of citizens to their constitution. It looks at how a constitutional regime came into existence and how it can be altered. In that respect, it revolves around the following two questions: (1) Is this constitution the result of a democratic process? (2) Can this constitution be altered through democratic means? To ask about democracy at the level of the fundamental laws, then, is to ask about two different moments in the life of a constitutional arrangement: past constitution-making and (the possibility of) future fundamental constitutional change. These are the moments in which a juridical order can come closer to an exercise of popular sovereignty (understood as including the faculty of creating a new constitution or, as we will see in later chapters, as constituent power), and in which the question of democratic legitimacy appears more clearly.7 With respect to constitution-making, the second dimension of democracy is incompatible with ‘given’ or imposed constitutions, regardless of how liberal or wise their content might be.8 The second dimension of democracy requires that the fundamental laws are created by those subject to them, through a process in which, as a sovereign people, they are free to adopt any constitution they want.
A constitution might be consistent or inconsistent with democracy at the level of the fundamental laws with respect to the moment it was created: it may have been born democratically or undemocratically. That is to say, a constitution can be the result of an exercise of political power by a sovereign people or it can be imposed from the top down (even if by a philosophically gifted political agent). To say that the second dimension of democracy involves an exercise of popular sovereignty is not to say that democracy is exhausted by popular sovereignty (an exercise of popular sovereignty can in fact abolish democracy), but that it requires its affirmation in the context of the relationship between the constitution and those subject to the constitutional order. In terms of constitutional change, the second dimension of democracy is equally demanding. It is incompatible with the Lycurgian-constitutionalist obsession with permanence and with the fear of constitutional change. When important juridical transformations are needed, it mandates a process that attempts to reproduce a democratic constitution-making episode. This is made possible by the exceptional nature of fundamental constitutional change: new or radically transformed constitutions are not born on a daily basis, and processes of popular participation that for practical reasons cannot be used at the level of daily governance acquire a special relevance during these extraordinary moments.
These processes can take place through institutional mechanisms designed to facilitate the realisation of democracy at the level of the fundamental laws (Chapter 8 considers some specific examples), or they might be the result of the politics of extra-juridical constitutional change. This last route could involve a revolution in the legal sense, an alteration of the constitution in a way that has not been anticipated by the established legal system. Regarding this last point, further clarification is in order. The second dimension of democracy is not equivalent to Bruce Ackerman’s ‘constitutional politics’ (to be discussed in Chapter 4) and should not be confused with it. It is true that Ackerman provides a theory about how the American constitution can be (and has been) altered outside the formal amendment procedure contained in Article V. But the actual role of the citizenry in his theory is not that clear. Ackerman’s constitutional politics are mainly about getting the support of ‘the People’, about being able to speak in their name.9 In contrast, the second dimension of democracy requires the actual participation of citizens in the positing and (re)positing of the fundamental laws through mechanisms such as citizen assemblies, referendums, popular initiatives and different forms of local and direct democracy.
The distinction between the two dimensions of democracy can be exemplified and summarised as follows. If someone asks: Is a dictatorial regime adopted by a popular majority after a process of deliberation between equals democratically superior to a constitutional order that includes the rights and institutions that allow democracy to exist (e.g., freedom of assembly, freedom of expression, etc.) but that was imposed on the citizenry by a foreign power? The answer to that question is that it depends on what aspect of the category ‘democratic’ the person who asks the question wishes to stress, for both examples suffer from an important democratic deficit: the former has a clear problem of democratic governance; the latter a clear problem of democracy at the level of the fundamental laws (and, as we will see in Chapter 6, both have a problem of democratic legitimacy). These two dimensions can also be approached in temporal terms. While questions regarding democratic governance are generally about the present, questions about the second dimension of democracy are normally focused in the past and in the future of a constitutional regime. Democracy at the level of the fundamental laws also tends to be more procedural than democratic governance, and in that respect it has a ‘populist’10 bent. However, it is not ‘purely’ procedural, because it presupposes respect for those rights and institutions that are necessary for a constitution to be adopted and changed democratically (even though the specific content of these rights and institutions could itself be altered through a democratic process).
However, as will be argued in Chapter 6, if these rights and institutions are abolished in an act of constitution-making or constitutional change, democracy ends in the very act of being practised (regardless of how democratic the process used to achieve that result is). One final point about the distinction between the two dimensions of democracy: it might be argued that this distinction is nothing but artificial and disempowering, and that any true democratic project should attempt to blur the differences between the two dimensions of democracy instead of highlighting them.11 There is a fundamental problem with this view. Where there is no distinction between the two dimensions of democracy, there is no distinction between ordinary and higher laws and, as a result, all laws become ordinary. The inevitable implication of such an arrangement is that either all law-making powers must be left in the hands of government officials (i.e., a system of parliamentary sovereignty) or that they must be left in the hands of the people. Since the second alternative is impossible to put into practice in the context of contemporary societies, the only viable alternative is a system of parliamentary sovereignty in which elected representatives are given an unlimited power of ordinary law-making and constitutional change (that is, both legislative and constituent power). But, as we will see shortly, the doctrine of parliamentary sovereignty is inconsistent with a serious commitment to the second dimension of democracy.
The difference between proceduralists and substantivists is usually posed in terms of their approach to the relationship between rights and majority rule.12 What separates procedural from substantive democrats is that the former tend to stress the importance of having a fair process for making decisions about controversial moral issues. Proceduralists defend majority rule as such a process because it respects the equal status of citizens.13 Any realistic alternative to majority rule, they say, would violate the democratic value of political equality, giving more weight to the votes of some citizens (e.g., supermajority rule would give more weight to the votes of those in the minority), and some decision-making rules would privilege the status quo (e.g., the rule of supermajorities or unanimity). Some procedural democrats agree that those rights necessary to create a fair democratic procedure (e.g., the right to vote) should have priority over majority rule, and some might agree that rights that protect individuals’ autonomy should also be outside the scope of democratic politics. Substantivists, in contrast, think that not only should the rights necessary for democracy be prioritised: those rights designed to produce just outcomes (such as those that prevent arbitrary arrests and seizures) should also have precedence over the democratic process and its decision-making rule.14
One of the most well-known procedural democrats is Jeremy Waldron. Waldron’s critique of judicial review of legislation (probably the most important component of his intellectual project) rests on a conception of democracy that privileges procedure over substance. This does not mean that Waldron believes that the content of fundamental and ordinary laws is not important or that rights protection should be moved to a secondary plane, but that to inquire into the democratic character of laws requires one to ask who made them and by what procedures they came into existence.15 For Waldron, people have a right to participate in equal terms in all aspects of their community’s governance; that is, not just about matters of social and economic policy but also about decisions of high principle.16 The right to participate – “the right of rights”17 as Waldron called it, following William Cobbett – is connected to values (such as autonomy and responsibility) that are part of the liberal commitment to other basic liberties. According to Waldron, when our right to political participation is not respected, our respect for other rights is called into question.18 That is to say, we cannot say we are respecting someone’s rights if we do not allow them to have a say whenever there is a disagreement about what those rights entail.19
It is not that the right to participate has moral priority over other rights, but that when there is disagreement about what rights people have (and disagreement about rights is simply inevitable), the exercise of the right to participation is the most appropriate for settling the dispute.20 Consequently, Waldron’s answer to the question of ‘Who shall decide what rights we have?’ is: the people whose rights are in question must participate on equal terms in that decision.21 For him, the right to participate involves the “imperative that one be treated as an equal so far as a society’s decision-making is concerned”.22 This is another way of saying that there cannot be a democracy unless rulers are controlled by the people they rule, and that “the people or their representatives” should be the ones to determine the principles of their association and the content of their laws.23 This, of course, is not the only possible or even the most popular answer to that question, but it is what makes Waldron’s approach to democracy procedural and what drives his understanding of rights and his critique of judicial review of legislation.
A theorist who holds a result-oriented or substantivist approach to democracy would answer that question very differently. This theorist would say, for example, that even when people’s rights are at stake, it might be better to entrust a body of jurists with the authority to decide what those rights require. According to that theorist, our priority should be to design the institutions that tend to make the ‘best’ decisions about rights, and it might be the case that a court is better equipped to produce those decisions than a legislative assembly. In contrast, the main tenet of Waldron’s theory is that there is a loss to democracy every time a non-democratic institution24 imposes a decision on the citizenry, no matter how wise that decision might be. Even with respect to rights that are necessary for democracy to exist, Waldron thinks that “[t] here is something lost, from a democratic point of view, when an unelected and unaccountable individual or institution makes a binding decision about what democracy requires”.25 Under Waldron’s view, democracy asks for a democratic pedigree even when the decision-maker gets it ‘wrong’.26
For the substantive democrat, this constitutes a serious misunderstanding of what democracy is all about. And Ronald Dworkin is the prototypical substantivist. His view of democracy, sometimes presented as ‘the constitutional conception’,27 and more recently as the ‘partnership view’,28 looks for the democratic character of a regime in the content of its fundamental laws and institutions. His favoured interpretation of the democratic ideal, the partnership view, qualifies the relationship between majority rule and democracy.29 According to Dworkin, democracy does not mean that the majority should always, or even most of the time, have the final word. What democracy requires is that the people govern themselves by treating individuals as full partners in a collective enterprise.30 Decisions are democratic only