Academic journal article Texas Law Review

Constitutionalizing Democracy in Fractured Societies

Academic journal article Texas Law Review

Constitutionalizing Democracy in Fractured Societies

Article excerpt

I. The Constitutional Foundations of Democracy

Constitutionalism exists in inherent tension with the democratic commitment to majoritarian rule. At some level, any conception of democracy invariably encompasses a commitment to rule by majoritarian preferences, whether expressed directly or through representative bodies. At the same time, any conception of constitutionalism must accept preexisting restraints on the range of choices available to governing majorities. As well expressed by Laurence Tribe in addressing the paradox of American constitutional democracy, "the question . . . is why a nation that. . . associates legality with representative government would choose . . . to constitute its political life in terms of commitments to an originating agreement-made to be treated by the people as binding on their children, and deliberately structured to be difficult to change."1

In this Article, I address the role of constitutionalism in stabilizing democratic governance in what I term fractured societies. The argument is that constitutionalism emerges as a central defining power in these societies precisely because of the limitations it imposes on democratic choice. For purposes of this discussion, I do not wish to explore the full dimensions of what is meant by democracy. Instead, I accept a rather spare definition of democracy as a system through which the majority, either directly or through representative bodies, exercises decisionmaking political power.2 Similarly, I want to avoid a theoretical inquiry into the full range of what is meant by constitutionalism. I use the term only to refer to the creation of a basic law that restricts the capacity of the majority to exercise its political will.3 For these purposes, it does not matter whether the restraint is an absolute, as with the nonamendable provisions of the German constitution,4 or simply the "obduracy" of Article V of the American constitution,5 or the temporal constraints requiring successive parliamentary action for constitutional reform, as in some European countries.6 Under any such system, the constitution serves as a limitation on what democratic majorities may do.7

When the question is posed, as by Professor Tribe, of why there should be any restriction on majority rule, two rather traditional answers are typically given. The first concerns a species of rights guaranteed to individuals or minorities that must be secured against majoritarian will. As expressed by Ronald Dworkin, "The Constitution, and particularly the Bill of Rights, is designed to protect individual citizens and groups against certain decisions that a majority of citizens might want to make, even when that majority acts in what it takes to be the general or common interest."8 The second concerns the structures of power, the limitations on the scope of office, and the forms of governmental change and accountability.9 Any system that entrusts power to the majority must ensure that majorities can change, that the rules of the game remain fair, and that those elected remain accountable to the electorate. This second category of restrictions may be thought of as the rules of democratic governance that guarantee that government truly represents the will of the majority of the people, while the first addresses the limitations on government conduct toward the citizenry, regardless of majoritarian preferences. There is considerable debate about how rigid these rules must be, about the need for limitations on parliamentary prerogatives, and the question of constitution-reinforcing judicial review. Indeed, there are those who challenge aggressively whether constitutional restriction is necessary for democratic legitimacy.10

I do not wish to engage these well-established, though ongoing, debates. I note simply that all the newly emerging democracies of the late twentieth century have opted for some form of written constitution and adopted some form of constitutionally based judicial review. …

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