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DARIO CASTIGLIONE*
596
we are not lumbered with the exclusions and limitations of the eighteenth
century, though, is in large part due to successive social and democratic
movements and reforms.
Here we come to a further source of potential complementarity or opposition.
Most constitutions have been democratically enacted and largely derive their
legitimacy from that fact. The great constitutional moments, be they the British
reform acts of the nineteenth and early twentieth centuries, the conventions of
the French and American revolutions, or the constitutional assemblies of the
post-war and post-colonial period, have been exercises of democratic politics
that transformed earlier conceptions of democracy. If constitutions are simply
artefacts of democracy, however, then it seems difficult to accord them any
independent weight. All democratic regimes operate within a framework
inherited from the past, but there seems no compelling reason to prevent them
from updating and rejecting that inheritance. The possibility of a people binding
not only themselves but future generations as well is fraught with apparent
contradictions.3 Yet, constitutionalists reply, the notion of democracy pulling
itself up by its own bootstraps or being able to abolish itself sounds similarly
odd. Surely, they argue, democracy is constituted by values, such as autonomy
and equality, that it does not itself create. If so, then their belief that the
constitutional rules defining democracy cannot be curtailed even by the Demos
itself still holds. And so we come full circle.
In this article, we review two contrasting examples of how contemporary
legal and political philosophers have tried to cut the Gordian knot of
constitutional democracy. Both groups seek to redefine the terms of the
opposition so as to render them compatible: the first by assimilating democracy
into constitutionalism and emphasizing the importance of a framework of rights
and liberties as necessary presuppositions of politics; the second by conceiving
the constitution both as the outcome of a democratic process and as largely
coextensive with the institutions and practices of the political system. Almost
all the authors reviewed are American and we emphasize throughout how their
arguments reflect their particular understanding of the constitutional history of
the United States, with the first group favouring a liberal interpretation and the
second a more republican one.4 Section I surveys and criticizes the standard
constitutionalist arguments for limitations on the workings of democracy.
3
597
Sections II and III respectively discuss a prominent example from the first and
second groups of constitutional thought outlined above. Our own position,
developed in the course of the discussion and stated explicitly in Section IV, is
a modification and radicalization of the second view.
I. C O N S T I T U T I O N A L I S M A N D D E M O C R A C Y
598
7
Sunstein, Approaching Democracy, pp. 1618. His examples, drawn from the American
experience, are the Full Faith and Credit Clause and the Commerce Clause.
8
For a recent and succinct restatement of classical constitutionalism, see L. Ferrajoli, Dai diritti
del cittadino ai diritti della persona, in D. Zolo, ed., La Cittadinanza: Appartenenza, identita`, diritti
(Rome: Laterza, 1994), p 284.
9
On the importance of considering the social attacks against personal liberty, cf. E. W.
Bockenforde, Recht, Staat, Freiheit (Frankfurt am Main: Suhrkamp, 1991), transl. State, Society and
Liberty (Oxford: Berg Publishers, 1991), in particular chap. 10.
599
the reach of the law or politics.10 Their arguments echo earlier complaints about
the injustices deriving from certain forms of the constitutional privatization of
property. During the so-called Lochner era for example,11 the United States
Supreme Court ruled out not just redistributive measures but also minimum
wage and maximum hours legislation as unconstitutional. As with new thinking
on the domestic situation of women, erosion of the inviolability of private
property in part turned on recognition that market exchanges and the resulting
distribution of resources were not natural but social processes that were to a large
extent politically determined. Consequently, they were legitimate matters of
government action rather than unjustified incursions into pre-political fundamental rights although the contrary view remains disturbingly familiar.12
A similar point can be made with regard to the other main liberal reason for
limiting government: namely, the fear that elected representatives develop
interests of their own that lead them to encroach upon those of the people they
are pledged to protect. Here too it may be more appropriate to limit politics with
politics rather than to circumscribe what politics can do, as for example public
choice constitutionalists propose. The separation of powers can be understood
in these terms. Bicameral legislatures and the separate election of the executive
provide standard instances of how democracy can place constraints on itself as
part of a continuing process of self-limitation that, in contrast to strategies of
principled exclusion, allow some flexibility in the way those limits are deployed
and interpreted.
The second set of constitutional constraints are meant to promote politics by
protecting it from various types of irrational behaviour. They are typically
presented as the product of a pre-commitment on the part of the people
themselves in which the Demos constrains itself.13 Consequently, they are said
to involve no direct conflict with democratic principles. The belief that members
of the populace ought to bind themselves in rational moments against errors they
might make in less lucid times is supposedly analogous to personal forms of
self-restraint, such as an alcoholics decision to sign the pledge. As such, they
are presented as examples of self-governance and autonomy, rather than as an
abridgement of our collective freedom. Yet this analogy does not hold. Of
10
600
course, there is a vast literature that treats the operation of the mass within
democratic societies as prone to irrational behaviour, and fears the tyranny of
the majority on just these grounds. But this possibility does not warrant a
wholesale ban on any discussion of either the rights and rules of the democratic
game or of those institutions that protect essential spheres outside it. Indeed, the
incommensurability and non-compossibility of basic liberties lays them open
to reasonable disagreements about how they are to be conceived and weighed,
both with regard to each other and in clashes with other values and interests.
Such disagreements are neither emotive nor unreasoned. Pre-commitment in
these areas cannot be compared to the self-binding of the confirmed alcoholic.
Rather, it resembles an orthodox Catholic, say, ordering his friends to keep all
heretical texts from him lest he fall into doctrinal error a far less edifying
model.14
There is also the problem that the people doing the binding may be different
to those that are bound. Thomas Jefferson raised this issue in terms of the
dubious legitimacy of the living being bound by the dead, a difficulty which
bedevils all contractarian theories of political obligation that appeal to consent.15
Surely, he claimed, the collective autonomy of the Demos required that each
generation is as independent of the one preceding, as that was of all which had
gone before, possessing like them, a right to choose for itself the form of
government it believes most promotive of its happiness. 16 As we shall see in
Section III when discussing Ackermans neo-Jeffersonian scheme, the main
objections to this thesis either invoke traditional liberal concerns to do with the
need to protect certain individual rights of the sort we examined above, or
involve practical or pragmatic worries related to its workability and potentially
disruptive effects. Either way, pre-commitment no longer offers the main
justification.
Pragmatic considerations predominate within the third class of constraint.
These involve burying sensitive or contentious issues likely to give rise to
irreconcilable differences that threaten to make democracy unworkable.
Religious disputes, for example, might factionalize the system and prevent
disinterested deliberation or mutual accommodation in other areas, or even lead
to civil strife. Removing such subjects from public debate is defended not to
protect pre-political rights but to prevent democracy from tearing itself apart or
fruitlessly diverting energy and resources into tackling irresolvable rather than
soluble problems. Such gag-rules are likened to the avoidance of contentious
topics between neighbours who disagree passionately about politics but feed
14
601
each others cats and water the plants when one of them goes on holiday.17
Silence in certain areas helps keep the peace and fosters co-operation in other
matters.
As with the pre-commitment thesis, the analogy from the private and personal
domain does not transfer fully to the political and collective sphere. My
neighbours sexism may be immaterial to his ability as a cat feeder and mower
of lawns, for example, but highly pertinent to his views on issues of public policy
and my reaction to them. Like the other constitutional constraints examined so
far, there is a danger that isolating a matter from public scrutiny serves simply
to entrench an unjust status quo and gives tacit support to one of the sides in
the debate. In such cases, removal is as likely to undermine democracy as to
reinforce it. If redress cannot be obtained in principle through regular political
channels, then aggrieved parties will be tempted to resort to more drastic
extrapolitical remedies. Indeed, they may well be justified in doing so since the
democratic credentials of a system that prevents discussion of the matters its
citizens feel most passionately about are dubious to say the least.18
The fourth kind of constraint promises a closer fit with democracy. According
to this line of thinking, whilst substantive issues ought to be decided by the
democratic process, constitutions have a role to play in protecting the procedural
rules of democracy. Once again, this thesis has a distinguished American
pedigree,19 although similar arguments of course have appeared in other
cultures. For Chief Justice Earl Warren, the presumption of constitutionality
[was] based on the assumption that the institutions of state government are
structured so as to represent fairly all the people.20 On this basis, the Warren
Court from the mid-1960s onwards reviewed a number of State electoral laws
and districting arrangements with a view to ensuring they met this standard. The
difficulty is that matters of participation and process are as contested as most
other political issues. People will disagree about how fairness ought to be
interpreted and the degree to which it ought to be balanced against other values.
Thus, as in Britain, there is an American debate about the pros and cons of
proportional representation, the legitimacy of special electoral quotas for
particular disadvantaged groups, the relative merits of functional as against
territorial representation and the like.21 In many respects, these are not simply
arguments about process but also about substance, since one factor in almost
17
Cf. S. Holmes, Gag Rules or the Politics of Omission, in Elster and Slagstad, eds,
Constitutionalism and Democracy.
18
C. R. Sunstein, Constitutions and Democracies: An Epilogue, in Elster and Slagstand, eds,
Constitutionalism and Democracy, pp. 33940.
19
The key statement here is fn. 4 of United States v. Carolene Products of 1938. For a clear
discussion of the issues, see Arthur, Words that Bind, pp. 4852. The fullest philosophical defence
of the proceduralist argument is J. H. Ely, Democracy and Distrust: A Theory of Judicial Review
(Cambridge, Mass.: Harvard University Press, 1980).
20
Quoted in Arthur, Words that Bind, p. 50.
21
See, for example, D. J. Amy, Real Choices/New Voices: The Case for Proportional
Representation Elections in the United States (New York: Columbia University Press, 1993); and
602
(Fnote continued)
L. Gauinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (New
York: Free Press, 1994).
22
See C. H. McIlwain, Constitutionalism Ancient and Modern (Ithaca, NY: Cornell University
Press, 1940), chap. 2.
23
For example, B. Ackerman, We the People: Foundations (Cambridge, Mass.: Harvard
University Press, 1991), chap. 7; Sunstein, Partial Constitution, chap. 1; R. Bellamy, The Political
Form of the Constitution: The Separation of Powers, Rights and Representative Democracy and S.
Elkin, Madison and After: The American Model of Political Constitution, both in Bellamy and
Castiglione, eds, Constitutionalism in Transformation.
24
For example, Dworkin, Constitutionalism and Democracy, pp. 25.
603
604
605
(Fnote continued)
themselves of their other attachments and obligations in order to enter the public space (pp. 36971).
Michael Sandel (cf. Review of Political Liberalism, Harvard Law Review, 107 (1994), 176594)
suggests that it is possible to interpret Rawlss revised position as thoroughly historicist and
antiuniversalist (Sandel quotes here from Richard Rorty), so that in this view social policy needs
no more authority than successful accommodation amongst individuals (p. 1175). Sandel, however,
opts for a different interpretation (see below pp. 178994). See too R. Bellamy and M. Hollis,
Liberal Justice: Political and Metaphysical, Philosophical Quarterly, 45 (1995), 119, at p. 14.
35
The locus classicus for this argument is probably E. Burke, Reflections on the Revolution in
France (Oxford: Oxford University Press, 1993), for example, pp. 335.
36
Rawls, Political Liberalism, p. 19.
37
Rawls, Political Liberalism, pp. 301.
606
Why should they feel obliged to put to one side the truth as they see it and adopt
a somewhat alien (and alienating) Rawlsian political language?
Rawls has no satisfactory answer to this question. At times, he stresses largely
pragmatic reasons stemming from an interest in stability.38 However, this is
essentially an empirical claim of dubious validity, as we saw when discussing
gag-rules in the last section. It assumes that people will always prefer a quiet
life to protesting against what, from their private point of view, is an injustice
or a lack of concern. Since there is plenty of evidence to suggest people are not
always so passive, such exclusions may well have the opposite effect of
stimulating protests that go outside official political channels. The only
alternative, however, appears to be for him to go on the attack and argue for the
superiority or truth of the liberal position. However, Rawls himself signals the
prime danger of this strategy, since he doubts whether a comprehensive
liberalism could ever gain widespread acceptance except with the oppressive
use of state power.39
Rawlss difficulties stem in great part from his having cut himself off from
the resources of politics. In spite of its designation as a political conception of
justice, Rawls shows a decided antipathy to most forms of democratic decision
making. He insists that the basic liberties, which on his view underpin
democracy and provide the language of political argument, must themselves be
no longer regarded as appropriate subjects for political decision by majority or
other plurality voting They are part of the public charter of a constitutional
regime and not a suitable topic for ongoing public debate and legislation.40 Like
the proceduralist thesis criticized above, this argument overlooks the degree to
which the political sphere is itself a disputed matter.
Rawls admits that conflicts between the different liberties occasionally arise.
However, he believes that a given liberty can only be restricted by a different
liberty, and the general intention must always be to promote to the full the overall
scheme.41 Moreover, he thinks that such balancing should only be done by
judges in a constitutional court. The basic liberties, though, may prove not only
non-compossible but also incommensurable. The way we characterize any
given liberty and identify the constraints that determine its presence or absence
depends on normative and empirical judgements that he admits the burdens of
judgement make subject to reasonable disagreement. Such factors not only
undermine the neutral balancing of liberties, they may even result in a failure
to agree whether a conflict of liberties exists or not. Needless to say, the problem
of on-balance judgements becomes even more intractable when liberty has to
be weighed against other values because the exercise of freedom itself causes
harm or suffering. These sorts of difficulties lie at the heart of some of the most
38
See especially Rawls, Political Liberalism, p. xxv, where he describes stability rather than the
highest good as the defining issue of political justice.
39
Rawls, Political Liberalism, p. 146.
40
Rawls, Political Liberalism, p. 151, n. 16.
41
Rawls, Political Liberalism, Lecture 8.
607
This criticism is developed more fully in R. Bellamy, Pluralism, Liberal Constitutionalism and
Democracy: A Critique of John Rawlss (Meta)Political Liberalism, in J. Meadowcroft, ed., The
Liberal Political Tradition: Contemporary Reappraisals (Cheltenham: Edward Elgar, 1996).
43
Rawls, Political Liberalism, p. 240. This position is put forward most forcefully by R. Dworkin,
The Forum of Principle, in A Matter of Principle (Cambridge, Mass.: Harvard University Press,
1985).
44
For a pathbreaking, if occasionally overstated, analysis of this phenomenon amongst British
judges, see J. G. A. Griffith, The Politics of the Judiciary (Glasgow: Fontana, 1981). Parallel
observations so far as American courts are concerned have fuelled the Critical Legal Studies
movement; for example, M. Tushnet, Red, White and Blue: A Critical Analysis of Constitutional Law
(Cambridge, Mass.: Harvard University Press, 1988).
608
consider the knock on effects for other related forms of public expenditure, such
as medical and welfare programmes, or potential popular resentment. Politics,
in contrast, provides a better forum for getting a rounded view of an issue and
promoting popular support for the policies that emerge precisely because it is
open to the views and concerns of the people at large. Moreover, political
deliberation need not be purely self-interested. The New Deal, and the civil
rights and environmental movements offer well-known instances of principled
politics that have probably done far more in effecting social change than any
isolated court decision. Indeed, Sunstein argues that many landmark Supreme
Court decisions, such as Brown v. Board of Education and Roe v. Wade, have
been surprisingly ineffective and that the changes with which they are
commonly associated have come from independent legislative and executive
action.45
Rawlss political liberalism overlooks the role of politics. Convincing people
of the merits of a given policy and justifying a given exclusion involves moral
argument and hence political debate. An overlapping consensus has to be
politically constructed by exploring what can be resolved through political
deliberation and what must remain matters of reasonable disagreement,
concerning which we either agree to disagree or as far as possible attempt to find
some acceptable compromise solution. As Bernard Crick has remarked:
Diverse groups hold together because they practise politics not because they agree
about fundamentals, or some such concept too vague, too personal, or too divine
ever to do the job of politics for it. The moral consensus of a free state is not
something mysteriously prior to or above politics: it is the activity (the civilizing
activity) of politics itself.46
Of course, different forms of conflict exist and some may prove more intractable
and divisive than others. But, as we hope to show in the next two sections,
politics may prove capable of overcoming these difficulties.
I I I. C O N S T I T U T I O N A L P O L I T I C S : B R U C E A C K E R M A N S W E T H E
PEOPLE
45
609
dualist scheme47 cuts through the vicious circularity that surrounds the
relationship between constitutionalism and democracy.
Ackerman contends that the constitutionalists objections to simple majoritarianism are valid with respect to normal politics but do not hold for
constitutional politics. During normal politics, people do not speak with a
single voice but are divided into different ideological factions and interest
groups. At such times, the democratic process is best captured by an economic
model which characterizes voters as instrumental agents bent on maximizing
their own preferences. Consequently, fear of a tyrannous majority during such
periods is fully justified: judicial review, divided representation and Madisonian
checks and balances are needed to curb such tendencies as much as possible.48
Constitutional politics, in contrast, only takes place when some national crisis
manages to unite the people and leads them to transcend their own particular
interests and consider the common good. On such occasions, political decision
making is deliberative rather than economic in nature. The aggregating and
trading-off of group interests gives way to debate on the basis of publically
justifiable reasons. The aim is no longer the will of all so much as the general
will. As a result, objections to the will of the majority lose much of their force.
Instead of representing the aggregate of the largest number of personal
preferences, which then gets imposed on others who wanted something quite
different, a deliberative majority reflects a general opinion on the rules and
principles necessary to benefit everyone. In this latter case, voters should already
have taken the rights of other individuals into account when making their
decision and, when necessary, weighed them as best they could.49
Ackerman identifies three instances of constitutional politics in the United
States the Founding, Reconstruction and the New Deal. These constitutional
moments established a framework for normal politics that the Supreme Court
could then defend from populist incursions until such time as we the people
reconvened to reform it.50 This thesis aims to synthesize three different views
of constitutionalism.51 The concerns of rights foundationalists can be catered
for because dualist democracy gives rights special protection by making them
only reformable in the context of constitutional politics. Between times they can
be upheld by judicial review. He also hopes to accommodate the views of
monist democrats, who believe that the will of the people should always
prevail. These theorists make the mistake of believing that the popular will is
expressed in the ordinary law-making of normal politics. In fact, at such times
personal interests tend to supervene over the national interest, so that the
everyday legislation of governments reflects at best majority preferences rather
than the common good. However, the constraints imposed on majorities by the
47
48
49
50
51
Ackerman,
Ackerman,
Ackerman,
Ackerman,
Ackerman,
We
We
We
We
We
the
the
the
the
the
People,
People,
People,
People,
People,
pp.
pp.
pp.
pp.
pp.
333.
1813; 18695.
26694.
58104.
724.
610
constitution and its judicial guardians result from constitutional politics and so
do genuinely mirror the collective voice of the people. In bowing to them,
therefore, governments submit not to certain elites or imposed norms but to the
considered will of the Demos. Finally, Ackerman also tries to take the approach
of historicist interpreters of the constitution on board. This group divides into
roughly two camps: those who argue that judicial interpretation should
concentrate on divining the original intent of the founders, and those who regard
the constitution as an evolving document that judges need to update to reflect
current conditions. Ackerman merges the two within his dualist perspective. The
role of Supreme Court judges must be to uphold the intentions of the people as
expressed at the last relevant moment of constitutional politics. Since the
constitution has never been entirely rewritten, this will almost always involve
them in a complex process of integrating various elements from each of the three
moments. The Founders intentions remain important, but have been modified
by later new beginnings. The constitution does evolve, but not as a result of
judicial interpretation. It would be quite illegitimate for judges to take on the
responsibility of updating it. Rather, the judges role is to force the people to
deliberate on whether they think change is necessary or not by upholding the
status quo until they are sufficiently minded to do so.
Recognizing the constitutional role of politics involves a break with
traditional views of constitution-making processes and their self-legitimizing
qualities. Liberals and republicans part company at this point. The former insist,
as Rawls puts it, that the idea of right and just constitutions and basic laws
is always ascertained by the most reasonable political conception of justice
and not by the result of an actual political process.52 The latter subscribe
to the opposite view, providing an account of periodical constitutional precommitments as an actual, as opposed to a hypothetical, event.
A liberal might still object that since constitutions aim to embody universal
human rights or rights intrinsic to the procedures of democracy, constitutional
politics is at best superfluous, at worst pernicious.53 Given that such rights can
be justified, their democratic legitimation adds little or nothing to them whilst
risking placing them in jeopardy. This division reproduces the aforementioned
debate between Madison and Jefferson over the utility of periodic constitutional
conventions.54 Whereas Jefferson thought they were required to avoid any living
generation being bound by the decision of the dead,55 Madison believed they
52
611
were unnecessary and potentially destabilizing.56 From a Madisonian perspective, Ackermans theory comes close to falling into the Jeffersonian error. If you
get matters right the first time, then there should be no need for any future
constitutional politics. Next time you might make a mistake.
Although the story Ackerman tells has a decidedly Whiggish tone, with each
constitutional moment leading in a progressive and more egalitarian direction,
the ghost of a potential Reagan revolution haunts the pages of his book.57 Reagan
would have radically shifted the constitution in a libertarian direction that
Ackerman clearly would have deplored. Yet he appears to accept that had
Reagan mobilized popular support for a counter New Deal, then the people
would have spoken and he would have had to live with the result. Similarly, he
regards as great wrongs the acceptance of slavery and the exclusion of women
from the franchise at the Founding, the radical interpretation of freedom of
contract so as to undermine all attempts at employment legislation during
Reconstruction, and the absence of an adequate welfare state even after the New
Deal. In his view, these policies were never acceptable. How then can he endorse
the constitutional politics that gave rise to these injustices?
Ackermans response to such criticisms has been disappointing.58 Sometimes
he seems to accept them and say that he has simply been arguing that historically
the American constitution has developed in this way. He even advocates the
irrevocable entrenchment59 of social and economic rights alongside civil and
political rights as an ideal conclusion to the long history of American
constitution making.60 This historical gambit raises a further set of objections,
however. If dualist democracy is a peculiarly American institution,61
56
J. Madison, Letter to T. Jefferson, 4 February 1790, in M. Meyers, ed., The Mind of the Founder:
Sources of the Political Thought of James Madison (Hanover, Pa.: Brandeis University Press, 1981),
pp. 1769.
57
Ackerman, We the People, pp. 506; on Reaganism as an attempt at a counterrevolution against
the legacy of the New Deal, cf. Wolin, Collective Identity.
58
Cf. B. Ackerman, Rooted Cosmopolitanism, Ethics, 104 (1994), 51635.
59
There are two different senses in which one can understand the entrenchment of rights: in the
constitutional sense of rights which have special protection against normal procedures of legislation
and policy making (this is the meaning that Ackerman gives to all constitutional rights in dualist
democracies, where absolute entrenchment can only be conceived as a temporary measure); and in
the supra-constitutional sense of irrevocable entrenchment, revocable only by a complete subversion
of the constitutional regime.
60
Ackerman, Rooted Cosmopolitanism, pp. 5335; cf. also We the People, pp. 31922. This
conclusion is in line with the standard cosmopolitan view of constitutionalism according to which
if certain fundamental rights are established to defend the individual against the majority, there is
no particular reason why a qualified majority (in either quantitative or qualitative terms) should
be any different from a simple majority (for a statement of this position, cf. Ferrajoli, Dai diritti,
p. 285). Indeed, in his review of Political Liberalism, Ackerman seems to adopt a much more
standardly liberal position, cf. Political Liberalisms, pp. 36486. The kind of distinctions which
in this piece Ackerman makes between his and Rawlss liberalism do not reflect the one identified
in our article, which is mainly based on Ackermans position as put forward in We the People.
61
In fact, the uniqueness argument is easily refuted by considering the whole debate on the
relationship between constituent power and constituted powers in France since the Revolution. See
612
then it is unclear that any other nation either could or should adopt it, though
Ackerman proposes they ought to in his The Future of Liberal Revolution.62 Nor
does an appeal to history necessarily offer any compelling reason for Americans
to continue doing so. After all, the fact that something has functioned well in
the past may be no more than chance and might even suggest that we need to
discard it if the circumstances of the future turn out to be radically different from
those that obtained heretofor.
At other times, he offers a more pragmatic defence of his theory.
Constitutional moments, he suggests, are in the nature of things. In the past those
who have entrenched certain constitutional provisions have made grave
mistakes, in the American case condoning slavery, the oppression of women and
social inequalities. Given human fallibility, similar errors are likely to occur in
the future. Our best defence against oppression on the one hand and anarchic
revolution on the other is to regularize the conditions and forms under which
periodic constitutional review can take place.63 So stated, this line of argument
will not do. Such a negative reason does not seem sufficient to ground the
positive picture of public reason which Ackerman associates with higher
law-making.64 One could equally say that the chance of periodic review provides
the opportunity for even greater errors to be made in the future.
I V. P O L I T I C A L C O N S T I T U T I O N A L I S M
Most of the criticisms that have been levelled at Ackerman assume that an
overlapping consensus on certain constitutional principles can be justified a
priori. However, the earlier analysis of Rawls raised two difficulties with this
assumption associated with the burdens of judgement. First, the values and
theories upon which principles of justice and rights can be based are often
incommensurable. Consequently, they occasionally produce not only different
rankings of basic rights but also conceivably very diverse interpretations of what
justice requires. Secondly, even within an agreed scheme of values, rights may
clash. This problem of non-compossibility, however, will become even more
intractable when a political community includes individuals holding incommensurable understandings of the basis of rights and justice. There are limits to what
can be justified in abstract terms when these sorts of conflicts are acknowledged.
(Fnote continued)
L. Jaume, Il potere costituente in Francia dal 1789 a De Gaulle, in P. Pombeni, Potere costituente
e riforme costituzionali (Bologna: Il Mulino, 1992); and M-J. Redor, De lEtat legal a lEtat de droit
(Paris: Economica, Presses Universitaries dAix-Marseille, 1992).
62
B. Ackerman, The Future of Liberal Revolution (New Haven, Conn.: Yale University Press,
1992).
63
Ackerman, We the People, pp. 1739, 2727 and 2904.
64
For an insightful discussion of the motivational problems linked to higher law-making, and of
how it may be possible to give a more positive picture of public reason in constitutional moments,
cf. R. Goodin, Motivating Political Morality (Oxford: Blackwell, 1992), pp. 10023.
613
65
This account of the role of the democratic process in constructing a common point of view draws
on B. Manin, On Legitimacy and Deliberation, Political Theory, 15 (1987), 33868; and D. Miller,
Citizenship and Pluralism, Political Studies, 43 (1995), 43250.
66
Ackerman, We the People, pp. 23243. Ackerman himself emphasizes the conceptual nature
of the link between private citizenship and dualist democracy: cf. pp. 297300.
67
For a similar criticism of Ackermans conception of private citizenship, wavering between an
expressive and instrumental account of it, cf. Galston and Galston, Reason, Consent.
614
615
Elster conjectures that strategic arguing illustrates the more general phenomenon of the civilizing effect of hypocrisy. Politics, in other words, forces us
to take on at least the semblance of accommodating others, a necessity that in
time may lead to us actually doing so.
The balance between the economic and deliberative elements within
democratic debate will depend on the issue and the circumstances. When
principles are at stake, as in debates about abortion or capital punishment,
discussion standardly takes a deliberative form and everyone involved makes
a genuine effort to respect basic human interests. Even in the British Parliament
a classical example of a monist democratic system MPs are given a free
vote on such occasions.74 However, economic reasoning is entirely appropriate
when one is looking simply for a decision that will maximize the general
welfare. Of course, many, if not most, decisions involve elements of both sorts
of reasoning. When deciding on whether to build a road, for example,
consideration is standardly given not only to the interests of residents and
potential road users but also to more principled concerns, such as protection of
the environment. Consequently, a democratic majority need not be seen as
riding rough shod over the values and interests of others. It may be more accurate
to regard it as the best means available of weighing them and bringing them into
some kind of balance through a combination of normal and constitutional
politics, economic and deliberative democracy.
If constitutional politics is not so different from normal politics, then the
constitutionalists belief that the enabling and facilitating of politics requires its
limitation proves overstated. We can think of constitutions as embodying certain
principles that stand at the heart of all just societies, without necessarily placing
these basic rights and liberties within an extra-political framework on the
grounds that they are prior to, pre-conditions of, or need protection from politics.
Instead, their identification, specification and implementation may all best be
seen as products of political processes.
A constitution that takes this form consists of a complex of institutions and
conventions that facilitate the various styles of political dialogue that we
identified earlier as appropriate to the management of particular sorts of social
and ideological conflict, rather than being a legal document that sets out specific
justiciable rights and norms. We remarked above how one school of thought
regards the Federalists scheme of the American constitution as having adopted
just such an approach in order to encourage deliberation and curb the excesses
74
For a discussion of whether Britain can be classified as either a monist or a dualist democracy
in Ackermans sense, cf. I. Harden, The Constitution and Its Discontents, British Journal of
Political Science, 21 (1991), 489510 (in particular, pp. 5005). Worries about monist democracy
in Britain are often the compound result of two different issues. One is the absolute sovereignty of
parliament, the other is the effect of the electoral system which transforms a relative electoral majority
into an absolute parliamentary majority. The latter is not exclusive to monist democracies, as
Ferrajoli, for instance, argues in the Italian case (Dai diritti, p. 285).
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belief that ordinary citizens are not fully worthy of the liberties that the
proponents of such schemes nevertheless ascribe to them. In this area, where
no uniquely right answer exists, the political process of bargaining and arguing
forms a necessary aspect for generating an acceptable and authoritative solution.
It ensures not only that decisions get made in the light of the full range of
interests and values involved, but also promotes a certain identification with the
result on the part of the participants. To employ Harts terminology, democracy
creates not just a legal system but a society with law, in which citizens look
upon [the legal systems] rules from the internal point of view as accepted
standards of behaviour, and not merely as reliable predictions of what will befall
them, at the hands of officials, if they disobey.79
This approach does not entail the blurring of the roles of legislature and
judiciary, much less the elective dictatorship of executive power both
traditional problems of systems, such as the British, which appear to emphasize
democracy rather than liberal constitutionalism. Quite the contrary. Democracy
is necessary for the legitimate formulation of law but is perfectly consistent with
its application by an independent judiciary so as to avoid bias. Democracy and
the separation of legislative and judicial powers are both informed by the ideal
of impartiality, in the sense of ensuring all relevant interests and values are
weighed and publicly debated so that decisions do not reflect purely self-serving
preferences and prejudices. For similar reasons, democracy demands that
executive actions avoid arbitrariness by being publicly accountable. Thus, the
British tendency to equate democracy and the rule of law with the unchecked
power of the executive testifies to an absence of democratic controls rather than
the dangers of popular sovereignty. From our point of view, the remedy lies less
in a written constitution and bill of rights than in a more democratic system that,
for example, revives the powers of local government, introduces an elected
second chamber, reinforces the independence of MPs from party discipline and
ties them closer to the voters through electoral reform.
V. C O N C L U S I O N
79
H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), pp. 113 and 197.
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