Constitutionalism and Democracy

Richard Bellamy

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351571142
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Constitutionalism and democracy have been interpreted as both intimately related and intrinsically opposed. On the one hand constitutions are said to set out the rules of the democratic game, on the other as constraining the power of the demos and their representatives to rule themselves - including by reforming the very processes of democracy itself. Meanwhile, constitutionalists themselves differ on how far any constitution derives its authority from, and should itself be subject to democratic endorsement and interpretation. They also dispute whether constitutions should refer solely to democratic processes, or also define and limit democratic goals. Each of these positions produces a different view of judicial review, the content and advisability of a Bill of Rights and the nature of constitutional politics. These differences are not simply academic positions, but are reflected in the different types of constitutional democracy found in the United States, continental Europe, Britain and many commonwealth countries. The selected essays explore these issues from the perspectives of law, philosophy and political science. A detailed and informative introduction sets them in the context of contemporary debates about constitutionalism.

Part I
Constitutional Democracy: Substantive Views

[1]
Constitutionalism and Democracy¹

Ronald Dworkin

1. Introduction

Professor Habermas was kind enough to send me an advance copy of his paper.² I thought it might be best, in the interests of a concentrated discussion, to address some of the same themes as he does, though, as you will see, my perspective is a different one. So I shall discuss connections between law and jurisprudence, on the one hand, and moral and political theory on the other.

By ‘constitutionalism’ I mean a system that establishes individual legal rights that the dominant legislature does not have the power to override or compromise. Constitutionalism, so understood, is an increasingly popular political phenomenon. It has become increasingly common to suppose that a respectable legal system must include constitutional protection of individual rights. That is the assumption not only of the European Convention of Human Rights, but of almost all the Member States of that convention, in their domestic law. (Even in Britain, which is an exception, the pressure for an embedded constitution is growing.) Perhaps the most remarkable example, however, is South Africa. Even when the ANC legal committee was in exile, drafting a constitution against the day in which a black majority would be permitted to govern, it was never doubted that a South African Constitution should protect minorities against majority power.

But nevertheless a strong objection has been pressed against constitutionalism: that it subverts or compromises democracy, because if a constitution forbids the legislation to pass a law limiting freedom of speech, for example, that diminishes the democratic right of the majority to have the law it wants. If we respect constitutionalism, but also democracy, what should we do? What is the proper accommodation between the two ideals?

I believe that the conflict just described is illusory, because it is based on an inaccurate understanding of what democracy is. We should begin by noticing a distinction between democracy and majority rule. Democracy means legitimate majority rule, which means that mere majoritarianism does not constitute democracy unless further conditions are met. It is controversial just what these conditions are. But some kind of constitutional structure that a majority cannot change is certainly a prerequisite to democracy. There must be embedded constitutional rules stipulating that a majority cannot abolish future elections, for example, or disenfranchise a minority.

Let us distinguish, then, between enabling constitutional rules, which construct majority government by stipulating who may vote, when elections are to be held, how representative officials are assigned to electoral districts, what powers each group of representative officials has, and so forth, and disabling constitutional rules, which restrict the powers of the representative officals that the enabling rules have defined. We cannot say that only enabling rules are prerequisites of democracy, because some constitutional rules that might seem, on the surface, to be disabling rules are plainly essential to democracy. A majority would destroy democracy just as effectively by forbidding a minority the right to free expression as it would by denying that minority the vote, for example.

It is nevertheless controversial which disabling rules are essential to constructing democracy and so cannot be regarded as compromising or subverting it. Is it essential to democracy that minorities are guaranteed freedom from private discrimination in schools and employment, for example? Is it essential that women are guaranteed the right to an abortion if they wish, or that homosexuals are guaranteed sexual freedom? Is it essential that people are guaranteed a decent level of health care or housing or nutrition or education? These various rights are not so evidently connected to fair political procedures as is the right to free speech, and it may therefore seem plausible that embedding any of these rights in a constitution that cannot be amended by the majority is a compromise of democracy, a constraint on a majority’s legitimate right to govern. That issue is, however, more complex than it might first appear, and we must look again.

2. Two Concepts of Collective Action

Democracy, like almost any other form of government, involves collective action. We say that in a democracy government is by the people: we mean that the people collectively do things – elect leaders, for example – that no individual does or can do alone. There are two kinds of collective action, however -statistical and communal – and our conception of the essential pre-conditions of democracy will turn on which kind of collective action we take democratic government to require. Collective action is statistical when what the group does is only a matter of some function, rough or specific, of what the individual members of the group do on their own, that is, with no sense of doing something as a group. We might say: the German people want a more aggressive foreign policy. We describe a kind of collective action: no one German can act in such a way that he has made it true that the German people think anything in particular. But the reference to the German people is nevertheless only and simply a figure of speech. Our remark only makes a rough statistical judgment of some sort about what (say) most Germans who think about the subject think, or something of that sort. Or we might say that yesterday the foreign exchange market drove up the price of the Mark. Once again, we are describing collective action: only a large group of bankers and dealers can affect the foreign currency market in any substantial way. But once again our reference to a collective entity, the currency market, does not point to any actual entity. We could, without changing our meaning, make an overtly statistical claim instead: that the combined effects of individual currency transactions were responsible for the higher price of the Mark at the latest trade.

Collective action is communal, on the other hand, when it cannot be reduced just to some statistical function of individual action, because it is collective in the deeper sense that requires individuals to assume the existence of the group as a separate entity or phenomenon. The familiar but very powerful example of collective guilt provides a good example. Many Germans (including those born after 1945) feel responsible for what Germany did, not just for what other Germans did; their sense of responsibility assumes that they are themselves connected to the Nazi terror in some way, that they belong to the nation that committed those crimes. Here is a less unpleasant example. An orchestra can play a symphony, though no single musician can, but this is not a case of statistical collective action because it is essential to an orchestral performance not just that a specified function of musicians each plays some appropriate score, but that the musicians play as an orchestra, each intending to make a contribution to the performance of the group, and not just as isolated individual recitations.

The distinction between statistical and communal action allows us two conceptions of democracy as collective action. The first is a statistical conception: that in a democracy political decisions are made in accordance with some function – a majority or plurality – of the votes or decisions or wishes of individual citizens. The second is a communal conception: that in a democracy political decisions are taken by a distinct entity – the people as such – rather than any set of individuals one by one. Rousseau’s idea of government by general will is an example of a communal rather than a statistical conception of democracy.

Our sense of which constitutional rights are essential preconditions of democracy will depend on which of these conceptions of democracy – these two conceptions of collective action – we accept. I suspect that most of you are drawn to a statistical conception, which is certainly more familiar in our political theory, if not our political rhetoric, than a communal conception. You may think the communal conception metaphysical and mysterious. You may also think it dangerously totalitarian, and my reference to Rousseau would not have allayed that suspicion. So I will proceed, first, on that assumption, though we shall later find reason to consider how the matter would look if we adopted a communal conception (which I myself prefer).

If we adopt a statistical conception of democracy, then we must think about the pre-conditions of democracy in the following way. The bare fact that a majority or plurality of people favour one decision rather than another does not, just in itself, provide more legitimacy – it does not provide an appealing moral case justifying the coercion of the minority, who may have been seriously disadvantaged by the decision. We must consider what further facts would confer moral legitimacy on such a decision. We have already noticed some of these: a constitutional structure must be in place protecting the right of every adult to vote and to participate in political decisions. What other rights or conditions must be guaranteed? This is a question of political morality that different people would answer differently. But two further conditions might seem necessary. A majority vote does not achieve the needed legitimacy unless, first, all citizens have the moral independence necessary to participate in the political decision as free moral agents, and unless, second, the political process is such as to treat all citizens with equal concern. If that is right, then the preconditions of democracy include some rights – which ones is a matter for debate – tending to secure these conditions. It must include freedom of conscience and religion as well as freedom of political speech, and it must guarantee that political decisions do not reflect prejudice against any group, or disdain for or indifference towards its needs.

3. Does Constitutionalism Undermine Equality?

So the case seems compelling, on the statistical conception of collective action, that constitutional rights do not subvert democracy but, on the contrary, are an essential precondition of it. But now we must take account of arguments to the contrary. I assumed, just now, that the bare fact of a statistical majority or plurality does not provide moral legitimacy. But some of you might object to that quick conclusion. You might think that, even if a majoritarian vote does not provide full legitimacy, it has some moral consequence, just in itself, so that curtailing majoritarianism by accepting constitutionalism, even if overall justified, does involve a moral cost. If that were true, then it would give sense to the popular idea that constitutionalism involves some compromise in democracy. So I must now consider arguments to that effect.

It might be said that constitutionalism compromises political equality because it gives enormous power to a group of judges who are not elected or politically responsible. That might sound right, at first blush, but it is actually hard to defend in any troubling form. In the first place, as I have tried to explain at length elsewhere, we cannot define political equality as a function of political power. If we define power as impact, the goal of equal power is unattainable in a representative democracy; if we define it as influence, the goal is undesirable as well as unattainable. Political equality must be defined as a matter of status not power, and many constitutional rights, like the right of free speech, therefore contribute to rather than derogate from political equality. Second, many other officials who are appointed rather than elected – cabinet officers, for example -wield even greater power than judges. An American secretary of state may bring the country into war. In any case, however, we should distinguish between two forms of power: legislative power and adjudicative or interpretive power. The argument that constitutionalism subverts political equality generally assumes that constitutional interpretation is actually legislation. That is an important fact for us to notice, because it shows the impact of both legal theory and moral philosophy on this political issue.

The important constitutional disabling provisions are usually drafted in very abstract language. The American constitution, for example, requires ‘due process of law’ and ‘equal protection of the laws’, and forbids punishments that are ‘cruel’. Judges must decide how to apply these to concrete cases and, of course, judges disagree. They disagree, moreover, in ways that suggest the impact of any judge’s convictions about political morality – about the relative moral importance of particular freedoms, for example – on that judge’s opinion about what the constitution really means. There are two connected doctrines that argue, from these facts, that judges are not interpreting the law, but inventing new law. According to these doctrines, judges’ interpretations are actually pieces of fundamental legislation that, once enacted by a judicial decision at the highest level, cannot be changed by a majoritarian parliament.

The two connected doctrines are a legal theory – legal positivism – and a philosophical thesis – Archimedean moral scepticism. Legal positivism (in its strictest form) holds that law consists in the decisions of officials or other people who have been given law-creating powers by the social conventions of the community in question. If positivism is sound, as a general theory of law, then constitutional adjudication must be constitutional legislation in disguise, because no official or anyone else with conventional law-creating powers has ever decided whether, for example, the equal protection clause forbids paying women lower wages for the same work or the due process clause forbids making abortion a crime. But legal positivism is an inadequate interpretation of legal practice, not just in constitutional cases, but generally. It ignores the fact that we treat as law, not only what the proper officials have declared, but the principles underlying what they have declared, whether they recognized those principles or intend...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I CONSTITUTIONAL DEMOCRACY: SUBSTANTIVE VIEWS
• PART II CONSTITUTING DEMOCRACY: PROCEDURAL VIEWS
• PART III CONSTITUTIONALIST DEMOCRACY: RECONCILING SUBSTANCE AND PROCEDURES
• PART IV CONSTITUTIVE DEMOCRACY: POPULIST CONSTITUTIONALISM
• PART V CONSTITUTIONAL DEMOCRACY: BEYOND THE NATION-STATE
• Name Index