Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power [1 ed.] 0415671906, 9780415671903

Table of contents :
Contents
Acknowledgements
1 Introduction: towards a weak constitutionalism
2 The end of constitutionalism
3 The second dimension of democracy
4 Democracy’s principles
5 The theory (and practice) of constituent power
6 The idea of democratic legitimacy
7 The transformation of the juridical
8 The beginnings of weak constitutionalism
9 Activating constituent power
10 Conclusion
Bibliography
Index

Citation preview

Weak Constitutionalism

It has been frequently argued that democracy is protected and realised under constitutions that protect certain rights and establish the conditions for a functioning representative democracy. However, some democrats still find something profoundly unsettling about contemporary constitutional regimes. The participation of ordinary citizens in constitutional change 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. How can constitutions that can only be altered by those occupying positions of power be considered democratically legitimate? This book argues that only a regime that provides an outlet for constituent power to manifest from time to time can ever come to enjoy democratic legitimacy. In so doing, this book advances a democratic constitutional theory combining a strong or participatory conception of democracy with a weak form of constitutionalism. The author engages with Anglo-American constitutional theory as well as examining the theory and practice of constituent power in different constitutional regimes (including Latin American countries) where constituent power has become an important part of the left’s legal and political discourse. Weak Constitutionalism: Democratic legitimacy and the question of constituent power will be of particular interest to legal/ political theorists and comparative constitutional lawyers. It also provides an introduction to the theory of constituent power and its relationship with constitutionalism and democracy. Joel I. Colón-Ríos is Senior Lecturer in Law at Victoria University of Wellington. He is the author of ‘Carl Schmitt and Constituent Power in Latin American Courts: The Cases of Colombia and Venezuela’ (Constellations: An International Journal of Critical and Democratic Theory, 2011, vol 18(3), pp 365–388) and ‘The Counter-Majoritarian Difficulty and the Road Not Taken: Democratizing Amendment Rules’ (Canadian Journal of Law and Jurisprudence, 2012, vol 25(1), pp 53–78).

Routledge Research in Constitutional Law

Available titles in this series include: Weak Constitutionalism Democratic legitimacy and the question of constituent power Joel I. Colón-Ríos Forthcoming titles in this series include: Constitutional Amendment in Europe, Canada and the USA A comparative approach Xenophon Contiades, Centre for European Constitutional Law

Weak Constitutionalism Democratic legitimacy and the question of constituent power

Joel I. Colón-Ríos

First published 2012 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2012 Joel I. Colón-Ríos The right of Joel I. Colón-Ríos to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Colón-Ríos, Joel I. Weak constitutionalism : democratic legitimacy and the question of constituent power / Joel I. Colón-Ríos. p. cm. ISBN 978-0-415-67190-3 (hardback)—ISBN 978-0-203-12013-2 (e-book) 1. Constitutional law. I. Title. K3165.C574 2012 342—dc23 2011044608 ISBN: 978-0-415-67190-3 (hbk) ISBN: 978-0-203-12013-2 (ebk) Typeset in Garamond by RefineCatch Limited, Bungay, Suffolk

“Weak Constitutionalism by Joel Colón-Ríos is the best attempt I know to redeem a strong, populist notion of the constituent power, founded by Sieyes and reconstructed by Carl Schmitt. This is a work that all of us will now have to take into account if we are interested in democratic interpretations of constitutionalism. The book is highly intelligent, and is powerfully argued. Its biggest virtue lies in linking together abstract issues of theory and the political issues we face today.” – Andrew Arato, Dorothy Hart Hirshon Professor of Political and Social Theory, The New School for Social Research, New York “Colón-Ríos has put forward the strongest and most sophisticated defence of weak constitutionalism yet available. Seeking to reinvigorate the lapsed commitment to democracy, he has made a powerful and detailed critique of the failure of contemporary efforts to justify our current constitutional arrangements in terms of their democratic legitimacy. Instead, he puts forward a compelling glimpse of what a constitutional order might look like in the service of a truly robust and uncompromised democratic society. Even if he will not convince everyone, Colon-Rios poses a series of crucial questions that any scholar of constitutionalism and democracy worth their salt must address and answer.” – Allan C. Hutchinson, Distinguished Research Professor, Osgoode Hall Law School, York University, Canada “The birth of constitutional democracy in regions of the world thought to be on the periphery of political ‘development’ has reinvigorated long-standing debates over constitutionalism. Joel Colón-Ríos wades into this debate with an arresting and timely thesis. What makes constitutions ‘work’ is not how well they enchain democracy, but the political and democratic struggles by which constitutions are made. Paradoxically, well-crafted constitutions have mechanisms that undermine constitutional rigidity and facilitate popular participation in constitution making. Weak Constitutionalism makes a compelling argument that scholars have much to learn from the birth of new constitutions around the globe.” – Miguel Schor, Professor of Law, Suffolk University Law School and Visiting Professor of Law, Drake University Law School, 2010–12 academic year

Contents

Acknowledgements 1 Introduction: towards a weak constitutionalism Democratic constitutionalism 3 Democracy and the fundamental laws 5 Constituent power 7 Democratic legitimacy 9 Weak constitutionalism 10 Outline of the argument 12

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2 The end of constitutionalism The aspiration to permanence (or the fear of constituent power) 18 Constitutionalism as the protector of democracy 21 Beyond ‘democratic rights’: the extra-democratic effects of constitutions 26 Concluding remarks 29

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3 The second dimension of democracy The two dimensions of democracy 36 The theory and practice of substantive and procedural democracy 41 Ignoring the second dimension of democracy 43 The second dimension of democracy: approaching constituent power 47 Concluding remarks 51

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4 Democracy’s principles The principle of democratic openness 57 The principle of popular participation 60 Negating democratic openness 64 Negating popular participation 68 Concluding remarks 73

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viii Contents 5 The theory (and practice) of constituent power Locke and Lawson: constituent power or right of resistance? 80 Sieyes and Schmitt on constituent power and constitutional remaking 84 Constituent power in contemporary constitutionalism 88 Concluding remarks 94

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6 The idea of democratic legitimacy The idea of legitimacy 103 Towards a conception of democratic legitimacy 107 Democratic legitimacy and the risks of constituent power 109 The conditions of democratic legitimacy 114 Concluding remarks 118

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7 The transformation of the juridical Schmitt and Rawls on the limits of constitutional reform 127 The judicial doctrine of constitutional substitution 132 Constitutional reform and acts of the people 139 Concluding remarks 143

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8 The beginnings of weak constitutionalism 152 Weak constitutionalism 153 Exercising constituent power or weak constitutionalism’s mechanisms 156 Of constituent assemblies convened from below 160 Constituent assemblies and unwritten constitutions 165 Concluding remarks 168 9 Activating constituent power The activation/execution distinction 175 Of revolutions, informal assemblies, and other protests 178 Concluding remarks 182

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10 Conclusion

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Bibliography Index

189 203

Acknowledgements

This book is the result of a research project that I began as a doctoral student at Osgoode Hall Law School and that I have continued as a Lecturer at Victoria University of Wellington. Accordingly, it has benefited from the criticisms and recommendations of many friends and colleagues, and attempting to name them all would be as risky as such endeavour can be. I will thus only be able to mention a few. First of all, I am deeply grateful to Allan C. Hutchinson, who supervised my doctoral work and has provided me with valuable advice over time. In many ways, without his intellectual support and encouragement, this book would not exist. I would also like to express my thanks to Leslie Green and Bruce Ryder who, as members of my supervisory committee, provided me with critical comments that have proven immensely valuable. Ray Bazowski, Patrick Monahan, Liora Salter and Brian Tamanaha also contributed to the improvement of my dissertation, and their comments and criticisms have also benefited the arguments presented in this book. There are also many friends and colleagues who, during my time at Osgoode Hall, contributed to the development of my research and provided me with valuable criticisms, suggestions and friendship. They include Amaya Alvez Marín, Vassili Apostolopoulos, Rusby Chaparro Quijano, Frank Luce, Martín Hevia, Shin Imai and Zoran Oklopcic. Despite originating in my doctoral work, the book is partly based on research I have completed since joining the Faculty of Law at Victoria University of Wellington. At Victoria, I have had the opportunity to discuss many of the ideas presented in the book at different faculty workshops, which have proven extremely helpful. In addition, I benefited from a number of conversations about democracy and constitutionalism with my colleagues Mark Bennett and Rayner Thwaites. My gratitude also goes to Seonah Choi, Xavier Forde, Ana Gilling and Daniel Jackson, who read the entire manuscript and provided me with valuable recommendations and critiques. Part of this project was funded by Victoria University Research fund, for which I am grateful. I would also like to thank my parents for their love and support. My father is no longer with us, but I know he would have enjoyed reading my manuscript. Last but not least, I would like to thank Graciela, Lucas and Matías. They have provided me with the happiness and inspiration to finish

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this book. I am not only indebted to Graciela for her love, patience and unconditional support, but also for her substantive criticism and recommendations. I dedicate this book to her. Some sections of this book build on material that I have developed in previous articles. The first sections of Chapters 2 and 4 contain revised excerpts from ‘Deconstitutionalizing Democracy’, California Western Law Review, 2011, vol 47, p 41. Chapter 3 is an extended and revised version of ‘The Second Dimension of Democracy: The People and their Constitution’, Baltic Journal of Law and Politics, 2009, vol 2(2), p 2. The third and fourth sections of Chapter 6 and the first section of Chapter 7 contain revised excerpts from ‘The Legitimacy of the Juridical: Constituent Power, Democracy, and the Dilemmas of Constitutional Reform’, Osgoode Hall Law Journal, 2010, vol 48(2), p 199, and from ‘New Zealand’s Constitutional Crisis’, New Zealand Universities Law Review, 2011, vol 24(3), p 448. The second section of Chapter 7 contains revised excerpts from ‘Carl Schmitt and Constituent Power in Latin American Courts: The Cases of Colombia and Venezuela’, Constellations: An International Journal of Critical and Democratic Theory, 2011, vol 18(3). The fourth section of Chapter 8 contains revised excerpts from ‘New Zealand’s Constitutional Crisis’, New Zealand Universities Law Review, 2011, vol 24(3), p 448.

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

2

Introduction

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

Introduction

3

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,

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Introduction

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

Introduction

5

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

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Introduction

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 antidemocratic 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. Democratic governance has to do with the daily workings of a state’s juridical apparatus, with the processes that result in the adoption of ordinary laws and policies, and with the content of the fundamental laws. It is about the way a constitutional regime works on a day-to-day basis: for example, can citizens freely organise in political associations? Does the constitutional regime contain institutions, such as judicial review of legislation or unelected upper houses that may be seen as inconsistent with basic democratic principles? Because of its impact on the daily lives of individuals, a lack or deficit of democratic governance in a determinate country is generally more pressing for its citizens than a problem of democracy at the level of the fundamental laws. The second dimension of democracy is not about the daily workings of the state’s political apparatus, but about the relationship of citizens to their constitution. In a nutshell, it looks at how a constitutional regime came into existence and how it can be altered. As Chapter 3 will show, procedural and substantive conceptions of democracy (as well as their implementation in actual constitutional practice) operate almost exclusively at the level of daily governance, therefore neglecting careful consideration of the second dimension of democracy. This is unfortunate since the second dimension of democracy, as a result of the episodical nature of constitutional change, provides unique opportunities for intense democratic practices. The realisation of the second dimension of democracy – democracy at the level of the fundamental laws – requires the availability of mechanisms of constitution-(re)making consistent with the principles of popular participation and democratic openness (which, as will be argued in Chapter 4, should be understood as the

Introduction

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basic principles of democracy). Democratic openness is a way of expressing the idea that a democratic society is an open society; that is, one in which even the most fundamental rules are open to discussion and susceptible to being reformulated or replaced. Democratic openness welcomes conflict and dissent, and it is incompatible with untouchable rules or provisions. However, democracy entails not only an open society but a regime in which all citizens share the faculty of participating in politics, as well as in the constitution and re-constitution of the polity. Democracy means ‘rule by the people’, and this means that a democratic society is one in which free and equal citizens are able to participate, as much as possible, in the production of all laws. Democracy at the level of the fundamental laws, when understood in light of the principles of popular participation and democratic openness, is incompatible with the objective of fixing in place a constitutional regime (with a “perpetual constitution”, as Thomas Jefferson put it),10 with having a fundamental law very difficult or impossible to change. It is also incompatible with a constitution impervious to the force of participatory politics: both in the context of a ‘rigid’ written constitution that places the amending power in legislative supermajorities, as in the context of a ‘flexible’ written or unwritten constitution that can be altered through the ordinary law-making process, or through changes in the practices of government officials. When important juridical transformations are needed, it mandates a process that attempts to reproduce the degree of democratic openness and popular participation present during a moment of (democratic) constitution-making. A regime that aims at the realisation of the second dimension of democracy – a democratically legitimate constitutional regime – would thus facilitate the exercise of the constituent power of the people.

Constituent power The theory of constituent power can be an important tool in the theoretical arsenal of proponents of a democratic form of constitutionalism. It provides an alternative way of thinking about the meaning and institutional implications of a commitment to democracy at the level of the fundamental laws. In fact, weak constitutionalism can be understood as a particular approach to the people’s constituent power: instead of seeing constituent power as a threat, weak constitutionalism sees it as the possibility of correcting existing injustices through highly participatory episodes of constitutional change. Constituent power, which will be the central object of analysis in Chapter 5, means constitution-making power, the source of production of juridical norms. In its classical formulations (that of Emmanuel Sieyes and Carl Schmitt),11 constituent power is seen as a legally unlimited power, a power that assumes the constitutional regime as radically open. To say that the people are the bearers of the constituent power is to say that they are sovereign and that, in the exercise of that sovereignty, they may create any

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Introduction

constitution they want. Until recently absent from Anglo-American constitutional theory, the theory of constituent power – in its Sieyesean and Schmittian conceptions – has played an important role in the development of Latin American constitutionalism and has lately come to occupy a salient role in the constitutional discourse of the Latin American left. When taken to its ultimate theoretical conclusions, constituent power cannot be contained by a constitutional regime and can be exercised at any time after a constitution is in place. In fact, Sieyes maintained that, even after a constitution is adopted, the constituent subject does not lose “the right to alter [its decisions] as soon as its interest requires”.12 And Schmitt insisted that it was a mistake to think that constituent power “is thereby expended and eliminated, because it is exercised once”, and that it continues to exist “alongside and above the constitution”.13 Although the theory of constituent power did not appear until the late eighteenth century in the context of the French and American revolutions, there were several seventeenth-century social contract theorists who came close to developing its main ideas. George Lawson and John Locke are two of these authors.14 Although it has been suggested that Locke and Lawson advanced a theory of constituent power,15 in Chapter 5 I will argue that their theories should instead be understood as providing a theoretical justification of the right to resist an oppressive regime. For these authors, popular sovereignty could only be exercised after government dissolved itself by acting against the people’s trust. The distinction between constituent power and the right of resistance is fundamental for any democratic constitutional theory: only a conception of constituent power according to which its exercise can be triggered at any moment in the life of a constitutional regime can be made consistent with the basic thrust of the democratic ideal. In addition to recognising the constituent subject’s unlimited faculty to create and re-create constitutions whenever it considers it necessary, contemporary conceptions of constituent power emphasise its collective character. Thus, constituent power is defined as the power to create a constitution together, with the participation of those subject to it. Andreas Kalyvas has expressed this idea clearly: the very meaning of the concept of constituent power “prescribes that if one wants to constitute a new constitution, for example, one ought to co-institute it, to institute it jointly with others”.16 As the reader may note, constituent power seems to have a direct relationship with the democratic ideal. This is not a coincidence: constituent power is the expression of democracy at the level of the fundamental laws. To use Antonio Negri’s formulation, “to speak constituent power is to speak of democracy”.17 This democratic aspect of constituent power, which requires the direct participation of citizens in the production of the fundamental laws, is connected to the democratic legitimacy of a constitutional regime in important ways: to say that a particular constitution enjoys democratic legitimacy is to say that it provides an opening for constituent power to manifest when important constitutional transformations are needed.

Introduction

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Democratic legitimacy The conception of democratic legitimacy advanced in this book (and developed in Chapter 6) focuses on the ways in which a constitutional regime can be changed and at its susceptibility to democratic alteration. Under this view, democratic legitimacy is not about the procedure that the constitution establishes for law-making, but about the procedures it establishes for its own transformation; it is a conception heavily informed by constituent power and its democratic implications. Not everyone thinks about the legitimacy of constitutional regimes in this way. It is frequently argued, for example, that the legitimacy of a constitution depends on whether “those who are governed by it, including the organs of the state, acquiesce to its terms”.18 This kind of approach is not only at odds with the idea of democratic legitimacy, but – at least potentially – with the very idea of democracy. For example, it would consider legitimate a constitution imposed by an external agent according to which a sole individual exercises unlimited power as long as the relevant group of human beings ‘acquiesces to its terms’. Other approaches to legitimacy argue instead that the legitimacy of a constitution depends on whether its content can be justified according to normative principles with which any rational and unbiased person would agree. Alternatively, the legitimacy of a constitution could also be conceived in terms of its legal validity. Under that view, a constitution would be considered legitimate if it was adopted according to previously established rules of constitutional change.19 Despite their sophistication and appeal, these approaches are insufficient from the perspective of democratic legitimacy in so far as they can be made entirely consistent with constitutions adopted from the top down and not susceptible to democratic change. I make reference to them in order to stress that democratic legitimacy, as used in this book, is a broader idea than ‘legitimacy’ as such. Its ‘democratic’ element connects the idea of legitimacy to constituent power and to democracy and its corollaries of openness and popular participation. There are, however, degrees of democratic legitimacy, and the susceptibility to democratic re-constitution should be understood as the minimal condition of democratic legitimacy. That is to say, there are political practices and institutional forms that could increase the democratic legitimacy of a constitutional regime well above this minimum. For example, a ‘fully’ democratically legitimate constitutional regime would have originated in a democratic constitution-making act, one characterised by intense episodes of popular participation and by the absence of any external or internal limits on the content of the new constitution (other than those self-imposed by the constitution-maker, such as those limits based on a country’s political culture). In other words, a constitutional regime whose past, present and future point towards the realisation of the second dimension of democracy. However, most constitutional regimes (especially, but not only, those with very old constitutions) would not even come close to meeting the requirement of a democratic pedigree. As will be argued in Chapter 6, a

10

Introduction

constitutional regime that lacks a democratic pedigree can rest its claims to democratic legitimacy in its susceptibility to re-constitution through mechanisms that facilitate the exercise of constituent power and that attempt to replicate a democratic constitution-making episode. For the susceptibility to democratic re-constitution to mean something, it must have actual institutional implications. In other words, the constitutional forms must provide the means for constituent power to reappear after the constitution is in place and, if needed, to put the entire institutional arrangement into question. Put briefly, this means that the rights and institutions necessary for the very possibility of democracy and for the exercise of constituent power must be in place (whatever the form those rights and institutions take). Of course, there could be a political revolution in which, through an act of popular participation, those guarantees are abolished. But even when the constituent subject is free to adopt any constitution it wants, the abolition of these rights and institutions would be inconsistent with the future exercise of constituent power (eliminating the possibility of democratic re-constitution) and therefore with any prospects of democratic legitimacy. Like democracy, constituent power negates itself when it violates the conditions that make it possible. Beyond the recognition of basic rights of political participation, a constitutional regime must have some mechanism in place (in addition to the ordinary amendment procedure) designed to allow citizens to propose, deliberate and decide upon fundamental changes to the constitution. These institutions (the specifics of which will be discussed in Chapter 8) should allow for the greatest possible degree of popular participation in constitutional change and, as facilitators of the exercise of constituent power, must not be subject to any substantive limits originating in the established juridical order. Several recently adopted Latin American constitutions contemplate such a mechanism: the Constituent Assembly convened ‘from below’ (that is, through the collection of signatures), activated through popular referendum and authorised to deliberate and decide upon fundamental changes to the constitutional regime without being limited by any form of positive law (and whose proposals need to be ratified by the electorate before they come into effect). As will be seen in Chapter 7, this conception of democratic legitimacy would also require that constitutional changes of a ‘fundamental’ nature (i.e., those that amount to an act of re-constitution) take place through the most participatory processes possible. A constitutional regime consistent with these ideas would be based on a weak form of constitutionalism, and would assume that, at least episodically, democracy should triumph over constitutionalism.

Weak constitutionalism Contemporary constitutional theory has developed three major approaches to deal with the tension between constitutionalism and democracy (these approaches will be examined in more detail in Chapters 3 and 4). The first

Introduction

11

approach, usually associated with Ronald Dworkin, negates the existence of any tension between these ideals.20 It sees democracy realised in a ‘constitutionalist’ constitution, one that contains what are taken to be the right abstract principles and that should therefore be put out of the scope of democratic politics. The second approach, most famously put forward by Jeremy Waldron, rejects the Dworkinian identification of constitutionalism and democracy.21 It insists that in the light of disagreement about the meaning of rights, it should be ‘the people’, usually acting through their representatives, who determine the content of the constitution. This approach is thus incompatible with supreme constitutions but, an institutional level, recommends a system of parliamentary sovereignty and does not call for a participatory approach to constitutional change. The third approach, best exemplified in the work of Bruce Ackerman, rejects the Waldronian identification of the people and the legislature and insists on the sovereignty of the former over any constitutional arrangement.22 However, instead of proposing mechanisms that would facilitate the people’s participation in the re-creation of the fundamental laws, it replaces the flesh-and-blood human beings who live under the constitutional regime with a mythical ‘People’, whose acts are to be identified ex post facto. Weak constitutionalism is inconsistent with these three major approaches. In what follows, I outline the basic premises of a theory of weak constitutionalism, which will be further developed in Chapter 8. First, unlike the conception of constitutionalism under which most constitutional regimes operate, weak constitutionalism does not maintain the precedence of a constitution that is presumed to rest in the correct abstract principles over the constituent power of the people. Instead of privileging the supremacy of the former through a constitution that is difficult or impossible to change or of privileging the supremacy of the legislature by allowing it to alter the constitution by simple majority rule, it seeks to leave the door open for future constituent activity. Second, weak constitutionalism rests on a distinction between the two dimensions of democracy and, instead of seeing democracy exhausted at the level of daily governance, aspires to the realisation of democracy at the level of the fundamental laws: constituent episodes in which new or radically transformed constitutions are produced through the most participatory mechanisms possible. Third, weak constitutionalism mandates a constitutional regime consistent with the principles of democratic openness and popular participation. It does not insist on the preservation of particular constitutional forms, but seeks to create the conditions of possibility for their occasional democratic transformation. Fourth, weak constitutionalism does not see constituent power as a threat. In that respect, it does not look at fundamental constitutional change with suspicion, but as an opportunity for improving the lives of citizens. Moreover, it does not see the exercise of constituent power as restricted to situations of extreme governmental abuse or as forever channelled through the ordinary process of constitutional reform, but as susceptible to being exercised at any moment after a constitution is in place through highly participatory procedures. Fifth, weak constitutionalism does not approach all constitutional changes in the same way.

12

Introduction

It assumes that some changes are more fundamental than others, and that some partial revisions of the constitution may amount to the creation of a new constitutional regime. Accordingly, weak constitutionalism is consistent with the doctrine of implicit limits on the ordinary power of constitutional reform, according to which fundamental constitutional changes cannot be adopted by the ordinary institutions of government. Sixth, weak constitutionalism does not see citizens just as human beings with rights that take part in politics through voting, but as those who are allowed to participate in the (re)positing of the norms that govern the state. In other words, it sees citizens as those who participate in the democratic legitimation of the constitutional regime and know that, despite all the imperfections of such an order, it can be changed. The presence of that possibility, I believe, is what determines the democratic legitimacy of a constitutional regime. Or so this book will argue.

Outline of the argument The book is divided into two main parts, with the first part corresponding to Chapters 2 to 4. These chapters seek to show that there is a real tension between constitutionalism and democracy and they defend a particular interpretation of the democratic ideal. Chapter 2 presents the traditional concept of constitutionalism and identifies as its main characteristic an aspiration to the permanence of the constitutional regime and a fear of constitutional change. It then considers some possible defences of that traditional concept, particularly the idea that a rigid constitution serves the function of protecting democracy from itself, for example, by entrenching certain rights. The chapter rejects that view, suggesting that even if there are some rights that are necessary for democracy to exist, their entrenchment might not be necessary for them to be respected. Moreover, at least in the context of the typical (written) constitution, the entrenchment of rights comes accompanied with the entrenchment of other (not democracy-related) principles and institutions that are also put outside the scope of democratic politics. Chapter 3 examines two influential accounts of democracy: Jeremy Waldron’s procedural approach and Ronald Dworkin’s substantive one. The chapter argues that, in contrast to what those approaches suggest, democracy is not exhausted by a constitution that provides citizens with the ability to participate in the creation of ordinary laws through the election of a representative assembly or by living under a constitutional regime that treats all human beings with equal concern and respect. Democracy, it is argued, is a multidimensional ideal. The second dimension of democracy, democracy at the level of the fundamental laws, requires that citizens are allowed to participate in the creation and modification of their constitution. Traditional procedural and substantive approaches to democracy, it is argued, have not paid sufficient attention to this second dimension. The chapter concludes by maintaining that, like Sheldon Wolin’s fugitive democracy, democracy at the level of the fundamental laws is episodical by nature, which makes its exercise

Introduction

13

well suited to forms of popular participation that are not possible or desirable at the level of daily governance. Chapter 4 presents a conception of democracy that rests on two basic principles. These principles – democratic openness and popular participation – mandate that all laws, including the fundamental laws, remain permanently susceptible of being reformulated and replaced, and that those changes take place through highly participatory procedures. These two principles acquire a special importance in the context of democracy at the level of the fundamental laws, since the episodical nature of the latter makes their implementation possible. The chapter then considers the ways in which influential conceptions of constitutionalism negate these two principles. In particular, the chapter focuses on how Wil Waluchow’s defence of living-tree constitutionalism is inconsistent with the basic thrust of the principle of democratic openness, and how Bruce Ackerman’s conception of constitutional politics and Jeffrey Goldsworthy’s defence of parliamentary sovereignty move the actual participation of citizens in constitutional change to a secondary plane. The second part of the book comprises Chapters 5 to 9. These chapters explore the ways in which the conception of democracy presented in the first part of the book, when combined with the concept of constituent power, gives rise to an attractive theory of democratic legitimacy. Chapter 5 introduces the theory of constituent power by considering George Lawson’s and John Locke’s theories of resistance, according to which the people’s power to re-constitute government is only triggered in cases of extreme governmental abuses. It then contrasts these theories with Emmanuel Sieyes’ and Carl Schmitt’s writings on constituent power, identifying in the conception of the latter two authors a stronger democratic potential. The chapter concludes by examining the treatment that constituent power has received in the Anglo-American and Latin American constitutional traditions. Chapter 6 builds on the theory of constituent power and in the conception of democracy presented in the first part of the book, and outlines a theory of democratic legitimacy. It begins by introducing different approaches to the idea of legitimacy (the legal, sociological and philosophical approaches) and, through an examination of A. J. Simmons’ work, by distinguishing legitimacy from the related concepts of authority and justification. The chapter then brings legitimacy, democracy and constituent power together, developing a set of criteria that must be met for a constitutional regime to be considered legitimate from a democratic perspective. First, a constitutional regime should have a democratic pedigree and, second, it must not close the door to the future re-emergence of constituent power. The chapter argues that a constitutional regime that cannot meet the first requirement might still have a claim to democratic legitimacy provided that it meets the second. In that sense, the second requirement (susceptibility to democratic re-constitution) is to be understood as the basic condition of democratic legitimacy. Chapter 7 discusses the doctrine of implicit limits to the ordinary power of constitutional reform. It begins by examining the thought of Carl Schmitt

14

Introduction

and John Rawls on this topic. Both authors provide arguments in favour of this doctrine and defend the distinction between ordinary and fundamental constitutional change. This distinction is important since only the latter kind of change amounts to an act of re-constitution. Accordingly, it must take place through (participatory) procedures that can be understood as facilitating the exercise of the people’s constituent power. Otherwise, fundamental changes could be adopted in ways that contradict both the idea of the constituent power of the people and the conception of democratic legitimacy presented in Chapter 6. The chapter then considers the ways in which some courts have developed the doctrine of implicit limits to constitutional reform, ruling that constitutional changes of a fundamental nature cannot take place through the ordinary (constituted) institutions of government. Particular emphasis is laid on the jurisprudence of the Colombian Constitutional Court. Chapter 8 develops the idea of weak constitutionalism and considers the types of mechanisms of constitutional change consistent with it. It explores the reasons why fundamental constitutional changes (i.e., changes that amount to the creation of a new constitution, to an act of re-constitution) should take place through extraordinary constitution-making bodies, a view that was present both during the Glorious Revolution of 1688 as well as in eighteenth- and nineteenth-century North America. The chapter then argues that although an extraordinary assembly is a superior mechanism of constitutional change, not all extraordinary assemblies are equally democratic and therefore appropriate means for the exercise of constituent power. The chapter presents the Constituent Assembly, convened from below (present in the constitutions of Bolivia, Ecuador and Venezuela), as the type of assembly that weak constitutionalism would recommend (and which could be made compatible with both written and unwritten constitutions). Finally, Chapter 9 is devoted to explaining and defending the distinction, found in the work of Carl Schmitt, between the activation and the execution of constituent power. While the Constituent Assembly convened from below can be seen as a mechanism for the execution of constituent power, its convocation (as well as the possibility of any exercise of constituent power) depends on the existence of a citizenry that, by engaging in informal political practices (such as massive demonstrations, civil disobedience, informal assemblies, political revolutions, etc.), creates the political climate necessary for constituent power to be activated. The chapter concludes by exploring this distinction in light of the recent ‘Arab Revolutions’ and the events surrounding (and resulting from) the recent protests in Greece, Spain and Iceland. Chapter 10 offers a brief general conclusion.

Notes 1 Unless otherwise indicated, I will use the terms and phrases ‘constitutionalism’, ‘liberal constitutionalism’, and ‘traditional conception of constitutionalism’ interchangeably.

Introduction

15

2 See for example, Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge: MIT Press, 1996; John Hart Ely, Democracy and Distrust: A Theory of Judicial Review, Cambridge: Harvard University Press, 1980. 3 Through the book, I use the word ‘citizens’ and ‘citizenry’ in the widest sense possible; that is, to refer to all those who are subject to a constitutional regime. 4 See Thomas Jefferson, ‘Letter to Samuel Kercheval, July 12, 1816’, in Merrill D. Peterson (ed), The Portable Thomas Jefferson, New York: Penguin, 1975, pp 558– 559; Clinton Rossiter (ed), The Federalist Papers no. 49, New York: New American Library, 1961. 5 See for example Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution, Cambridge: Harvard University Press, 1996; Jeremy Waldron, Law and Disagreement, New York: Oxford University Press, 1999; Jack M. Balkin, ‘Original Meaning and Constitutional Redemption’, Constitutional Commentary 2007, vol 24, p 427. 6 See for example Bruce Ackerman, We the People: Foundations, Cambridge: Harvard University Press, 1991; Akhil Reed Amar, ‘The Consent of the Governed: Constitutional Amendment Outside Article V’, Columbia Law Review, 1994, vol 94, p 457. 7 I developed this argument further in Joel I. Colón-Ríos, ‘The Three Waves of the Constitutionalism-Democracy Debate in the United States (And an Invitation to Return to the First)’, Willamette Journal of International Law and Dispute Resolution, 2011, vol 18, p 1. 8 See for example Donald Lutz, ‘Toward a Theory of Constitutional Amendment’, in Sanford Levinson (ed), Responding to Imperfection: On the Theory and Practice of Constitutional Amendment, Princeton: Princeton University Press, 1995; Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How the People can Correct it), New York: Oxford University Press, 2006; Stephen M. Griffin, ‘And the Nominee is . . . Article V’, in William Eskridge and Sanford Levinson (eds), Constitutional Stupidities, Constitutional Tragedies, New York: New York University Press, 1998. 9 See Benjamin R. Barber, Strong Democracy: Participatory Politics for a New Age, Berkeley: University of California Press, 1984; Allan C. Hutchinson, The Province of Jurisprudence Democratized, Oxford: Oxford University Press, 2008. 10 Merrill D. Peterson (ed), Thomas Jefferson Writings, New York: Library of America, 1984, p 983. 11 Emmanuel Joseph Sieyes, What is the Third Estate?, New York: Praeger, 1963; Carl Schmitt, Constitutional Theory, Durham: Duke University Press, 2007. 12 Sieyes, What is the Third Estate?, p 127. 13 Schmitt, Constitutional Theory, p 125. 14 George Lawson, Politica Sacra et Civilis, Cambridge: Cambridge University Press, 1992; John Locke, Two Treatises of Government: A Critical Edition with an Introduction and Apparatus Criticus, Cambridge: Cambridge University Press, 1967. 15 John Rawls, Political Liberalism, New York: Columbia University Press, 2005, p 231; Christopher Zurn, Deliberative Democracy and the Institutions of Judicial Review, Cambridge: Cambridge University Press, 2007, p 92. 16 Andreas Kalyvas, ‘The Basic Norm and Democracy in Hans Kelsen’s Legal and Political Theory’, Philosophy and Social Criticism, 2006, vol 32(5), p 589. 17 Antonio Negri, Insurgencies: Constituent Power and the Modern State, Minneapolis: University of Minnesota Press, 1999, p 1. 18 François Venter, ‘Constitution Making and the Legitimacy of the Constitution’, in Antero Jyränki (ed), National Constitutions in the Era of Integration, The Hague: Kluwer Law International, 1999, p 21.

16

Introduction

19 Hans Kelsen, ‘The Function of a Constitution’ in Richard Tur et al (eds), Essays on Kelsen, Clarendon Press: Oxford, 1986; Hans Kelsen, General Theory of Law and State, Cambridge, MA: Harvard University Press, 1949. 20 Dworkin, Freedom’s Law. 21 Waldron, Law and Disagreement. 22 Ackerman, We the People.

2

The end of constitutionalism

There are many definitions of constitutionalism. These definitions usually associate constitutionalism with a number of ideas: ‘restrained and divided’ political power,1 adherence to the rule of law,2 the protection of fundamental rights3 and the principle of constitutional supremacy4 (which is based on a distinction between ordinary and higher laws5). These ideas, although sometimes presented as equivalent to constitutionalism itself, are better understood as ways of achieving constitutionalism’s main objective: limiting political power. Constitutionalism seeks to subject political decision-makers to constitutional principles that are placed outside the scope of their ordinary legal faculties. A regime that respects the ideal of constitutionalism is subject to established law; it is a regime controlled by a number of rules, procedures and structures that create important limits on the political power of governments and their peoples.6 Thus, for example, dividing power among different branches of government is typically seen as an effective way of achieving that objective, since such an institutional arrangement would avoid the concentration of power in one institution or individual. Respect for the rule of law, understood as requiring at the very least a predictable legal system – one that operates according to stable and clear laws – promotes constitutionalism’s main objective further by offering protection against arbitrary rule.7 Guaranteeing the enjoyment of a set of fundamental rights (sometimes enforceable by courts) protects individuals from state interference in large areas of their private life and allows citizens to exercise different degrees of control over government policies through ordinary political participation. In order to protect rights and other institutions that promote the existence of a limited government from day-to-day majorities, constitutionalism is generally understood as mandating that they are entrenched in a constitution that is distinct from ordinary legislation: a constitution that is to be considered higher law and whose modification is subject to special procedures (even though a regime that operates under a flexible unwritten constitution could also effectively limit political power).8 That these are the ideas and institutional arrangements that characterise modern constitutionalism should not be a matter of controversy; in fact, they do not seem like bad ideas at all. But this is not the whole story. Constitutionalism is also characterised by a Lycurgian9

18

The end of constitutionalism

obsession with permanence, a fear of constitutional change according to which a constitution that contains the right content – a good, constitutionalist constitution – should also be a finished constitution. That is, a constitution that might be improved by correcting some historical mistakes here and there (and that might evolve and be expanded through judicial interpretation), but whose fundamental principles and the governmental structures it creates should be more or less immutable and therefore placed beyond the scope of popular majorities. It is this idea which is at odds with democracy.10

The aspiration to permanence (or the fear of constituent power) This component of constitutionalism has been defended at different moments and with different degrees of emphasis. In eighteenth-century France, it was exemplified when Isaac Le Chapelier, the Jacobin jurist, claimed that “the revolution was finished”, as there were “no more injustices to overcome, or prejudices to contend with”.11 Some years later, Napoleon Bonaparte issued a similar declaration: “Citizens, the revolution is determined by the principles that began it. The constitution was founded on the sacred rights of property, equality, freedom. The revolution is over.”12 The aspiration to permanency that drove Le Chapelier’s and Napoleon’s dicta is alive and well and, perhaps today more than ever, continues to inform liberal constitutionalism. One must not think, however, that it is only the entrenchment of basic liberal rights that drives this ideology. The idea is that to alter the constitution in important ways is to look for trouble, to play with the stability of the political system and to risk the precious ideal of the rule of law. In American constitutional thought, one of the first formulations of this view can be identified in James Madison’s writings, particularly in the context of his famous response to Thomas Jefferson’s ‘dangerous’ ideas about constitutional change. Jefferson, it is well known, despised the idea of perpetual constitutions. He complained that “[s]ome men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched”.13 In his view, “human institutions must go hand in hand with the progress of the human mind”14 and those living under a constitutional regime must be allowed to correct the ‘mistakes’ of previous generations. Jefferson even suggested that at set periods of time (every time a new generation came into existence, which occurred every 19 years according to his interpretation of the European tables of mortality), all laws and institutional arrangements should lapse and periodic constitutional conventions convened.15 Those conventions would guarantee that the present generation could exercise the “right to choose for itself the form of government it believes most promotive of its own happiness”.16 Madison disagreed with most of this. He maintained that Jefferson’s ideas about constitutional change and constitutional conventions came accompanied with “[t]he danger of disturbing the public tranquility by interesting too

The end of constitutionalism

19

strongly the public passions”.17 It is not that Madison defended the idea that a constitution could (or should) never be changed.18 However, he believed that Jefferson’s proposal suggested to the citizenry that their current system of government was somehow defective, depriving the government of “that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability”.19 Thus, instead of periodic constitutional conventions that opened the constitution to the “decisions of the whole society”,20 Madison favoured a complicated amendment procedure, one that involved a series of extraordinary majorities at the federal and state levels. In other words, an amendment procedure that would make constitutional change difficult and unlikely, and whose usual protagonists are not ordinary citizens (that would simply be too risky) but state officials sitting in federal and state legislatures. Among US constitutionalists, no one has followed Madison’s advice better than Kathleen Sullivan. Sullivan’s critique of what she calls Amendmentitis, or the unjustified desire to amend a constitution, is not very far away from the idea that a constitution should never be altered. For Sullivan, amendments “are dangerous apart from their individual merits”.21 Not surprisingly, she maintains that Jefferson’s proposals about constitutional change were rejected for good reasons.22 According to Sullivan, a frequently amended constitution decreases the people’s confidence that their constitutional system is stable and undermines the idea of having a constitution in the first place. Amending the constitution frequently also obscures the distinction between constitutional and ordinary politics; making the supreme law lose its fundamental character and putting at risk its coherence and generality. Finally, amending the constitution might ‘politicize’ it, and “the more a Constitution is politicized the less it operates as a fundamental charter of government”.23 For these and other reasons, Sullivan concludes that the constitution should be amended “only reluctantly and as a last resort”.24 But the disease Sullivan identifies is not that common. While there are well known US constitutional theorists that, for different reasons, argue against the rigidity of Article V (the US Constitution’s amendment rule),25 it is the Lycurgian approach to constitutions and constitutional change that is well established in US constitutional theory and practice (although usually presented in a more subtle way than the one that characterises Sullivan’s arguments).26 This view is best exemplified in the writings of scholars engaged in a defence of constitutionalism’s democratic credentials. Christopher Eisgruber and Stephen Holmes provide two good examples. Eisgruber argues that selfgovernment is perfectly compatible with constitutional forms that are protected through an inflexible amendment procedure. “If a polity is consumed with endless debates about how to structure its basic political institutions,” writes Eisgruber, “it will be unable to formulate policy about foreign affairs, the economy, the environment, zoning, and so on.”27 For Eisgruber, rigid or inflexible constitutions can be understood as a practical device for implementing a non-majoritarian (and superior) conception of democracy. Flexible

20

The end of constitutionalism

amendment procedures, on the contrary, may encourage “improvident reforms” that would encumber later generations, and allow present-day majorities to consolidate power at the expense of the whole people.28 Eisgruber’s approach is, in the last instance, profoundly Madisonian: the constitutional text is better left alone. Moreover, if any adjustments are needed, they can always be achieved through interpretation rather than through formal amendments (in this sense, it is not surprising that an important part of Eisgruber’s book is dedicated to a defence of judicial review of legislation). This kind of approach finds an important theoretical backbone in Holmes’ influential defence of constitutional pre-commitment. Holmes argues that the fact that a constitution is difficult to amend does not render it inconsistent with basic democratic principles. What rigid constitutions do is to serve as a guarantee that future generations will not eliminate the possibility of the formation of a democratic public will.29 By setting up institutions that allow citizens to deliberate about important matters, constitutions become instruments of self-government: techniques by which citizens rule themselves.30 As with the rules of a game or the rules of grammar, constitutions are primarily enabling: they allow a democratic form of political life to take place. And just as it would make little sense to change the rules of grammar or the rules of a game while writing or playing, it does not make much sense to worry about the reformulation of these enabling norms. Besides the fact that it would be great if all a constitution did was to enable democracy to take place (a point I will consider later in this chapter), it is fair to say that Holmes’ defence of precommitment is an endorsement of constitutionalism’s Lycurgian tendencies: constitutional change should be difficult and unlikely, a constitution is simply too valuable to be meddled with. To see how this conception manifests itself in constitutional practice, one only has to look at the amendment provisions of most modern constitutions. These provisions usually involve a set of requirements that are characterised by being more difficult to meet than those followed when the constitution was originally adopted. That is to say, while most constitutions are adopted by some form of majority rule, constitutional amendments are traditionally associated with supermajorities and other obstacles designed to decrease the possibility of important transformations.31 Some constitutions even contain ‘eternity clauses’ that place certain provisions outside the scope of the amendment procedure, thus highlighting the fear of constitutional change that characterises constitutionalism.32 Unwritten constitutions that operate under the doctrine of parliamentary sovereignty present an important exception to this rule: they do not subject important constitutional transformations to any formal requirements that differ from the ones that need to be met for the adoption of ordinary laws.33 We will see in the next chapter, however, that unwritten constitutions present important difficulties when looked at from the perspective of democracy at the level of the fundamental laws. By making constitutional change difficult and unlikely, constitutions also make popular constitutional change difficult and unlikely. That is to

The end of constitutionalism

21

say, the amendment processes of most liberal constitutions are not characterised by heightened opportunities for popular participation (other than the occasional vote in a referendum). By aspiring to be the exclusive means through which a juridical system regulates its own transformation, typical amendment rules negate ordinary citizens’ ability to transform their constitution in important ways. In short, they prevent future exercises of constituent power (understood as the faculty of positing new or radically transformed constitutions through participatory procedures) from taking place. In Chapter 4, I will consider in more detail different ways in which the democratic ideal is negated by constitutionalism’s aspiration to permanency. But before developing this point, it is necessary to explore in more depth constitutionalism’s tendency to make constitutional change difficult and unlikely, and the possible democratic justifications of this tendency. That is to say, there is a way of defending the Lycurgian approach from a democratic standpoint: by diminishing the probabilities of important constitutional transformations, constitutionalism protects democracy from itself. More specifically, there are some principles (which take the form of fundamental rights) that are necessary for the very existence of democracy. Therefore, the argument goes, making a constitution difficult to change (and only changeable by ordinary government) in order to protect those principles, can be made perfectly consistent with the democratic ideal. I turn to examining (and rejecting) this view below.

Constitutionalism as the protector of democracy As noted earlier, one of the ways through which constitutionalism seeks to limit political power is through the entrenchment of fundamental rights in a supreme constitution. This usually involves placing rights into a constitution that is difficult to change (at least more difficult to change than ordinary legislation) and giving the judiciary the power to strike down laws that conflict with those rights. Constitutional theory has long been occupied with developing arguments that defend or attack the democratic or undemocratic character of this kind of arrangement. For instance, Ronald Dworkin has argued that the United Kingdom should entrench fundamental rights in Bill of Rights and give judges the power to invalidate legislation inconsistent with those rights.34 And he defends this idea on democratic grounds: there is nothing undemocratic about protecting the rights that are required for democracy to exist.35 Others, like Jeremy Waldron, oppose the very idea of entrenching rights. Waldron has even rejected the idea of enacting “any canonical list of rights, particularly if the aim is to put that canon beyond the scope of ordinary political debate and revision”.36 Moreover, he insists that whenever there is a disagreement about rights, it should not be judges but the people whose rights are in question (acting through their elected representatives) to be the ones to decide what rights they have.37 Now, the institution of an entrenched and supreme bill of rights, by itself, is not central to the argument of this book. Even according to traditional

22

The end of constitutionalism

constitutional theory, it is the people, in the exercise of their constituent power, who have the faculty to create a constitution and, if that is their wish, of entrenching fundamental rights and giving the judiciary the power to strike down legislation that is determined to be inconsistent with those rights.38 Even under that view, entrenched and supreme bills of rights only bind day-to-day legislative majorities, not the citizens themselves, who are said to retain the right to create a new constitution and thus to alter the rights recognised in an old one (even if they have no way of doing that as a matter of political reality).39 So, it is of little interest here whether legislatures or courts should have the final word regarding the meaning and scope of fundamental rights, nor is it a problem that legislatures are not allowed to alter rights through the same procedures they use for the adoption of ordinary laws. This book is not about limits to ordinary law-making institutions, but about the lack of opportunities for popular constitutional change. Nevertheless, at the heart of arguments in favour of entrenched and supreme bills of rights lies an important claim: that constitutionalism, by protecting certain principles, seeks to protect democracy from itself. That idea is important for at least two reasons. First, it suggests that fundamental rights have such an important connection to democracy that they are constitutive of it: democracy cannot exist in their absence. Second, since some rights are constitutive of democracy, the constitution that contains them should be difficult to change (and here ‘difficult to change’ usually means difficult to change for anyone, not just for legislatures) so that the abolition of democracy is avoided. Someone who accepts these ideas would probably be uncomfortable with giving ordinary citizens the means of engaging in profound constitutional transformations: there is always a chance that the people will decide to abolish fundamental rights and with them the entire democratic system of governance. Constitutionalism’s aspiration to the permanence of the constitutional regime can thus be defended from a democratic perspective. If one wants democracy to exist over time, it is a good idea to restrain everyone’s political power so they cannot, intentionally or unintentionally, abolish democracy. However, as I will argue below, even if one accepts that some rights are necessary for the existence of democracy, a commitment to the ideal of the ‘rule by the people’ mandates that the content of these rights be determined (and is susceptible of being re-determined) by those subject to the constitutional regime. The question of whether ordinary citizens should be allowed to ‘meddle’ with the fundamental rights contained in a constitution, as well as the dangers of the abolition of democracy through participatory procedures, will be addressed in Chapter 4 and will be developed through the rest of the book through a consideration of the theory of constituent power. As announced in the introduction, this book will argue that the democratic legitimacy of a constitutional regime rests precisely on whether it is susceptible to re-constitution. Nevertheless, it is important to consider here the

The end of constitutionalism

23

relationship between rights and democracy, since that is where an important part of constitutionalism’s claim to a democratic pedigree lies. Fundamental rights come in two main forms,40 and both of them can be said to have different types of connections to democracy. On the one hand, political rights, which are said to be constitutive of the very possibility of a democratic process; these are rights of political participation. On the other hand, individual rights that protect persons from state interference and which, although not having an obvious connection to democracy, can be seen as necessary for citizens to engage in any meaningful form of political participation. I will briefly examine below the ways in which both types of rights can be understood as connected to the democratic ideal, and address the question of whether in virtue of those connections they should be out of the scope of the decision-making power of popular majorities. Politics, individuals and democracy Political rights allow citizens to participate, individually and collectively, in order to attempt to solve their problems and to influence (and sometimes to determine) state policies. These rights, which are generally characterised as rights of political participation, are usually identified with the right to vote, but can be understood as including the right to freedom of assembly and the freedom of expression.41 It is not difficult to see how these rights are connected – in fact, fundamentally connected – to the democratic ideal. Protecting everyone’s right to vote, for example, seems to be necessary for any electoral exercise to be considered democratic. Similarly, without the right to freely associate with others, ordinary citizens would not be able to create and participate in political organisations and social movements that deliberate and make proposals about the present and future of the polity. And without the right to speak one’s mind freely, any exercise of democratic deliberation would be a sham. When constitutionalism promotes the permanence of a constitution that entrenches political rights, the argument goes, it is protecting democracy or, as Holmes put it, protecting “a procedural document securing the preconditions for rational consent and dissent, public debate, conflict resolution without violence and the thoughtful and cumulative revision of the constitutional framework itself”.42 Individual rights, on the other hand, are more difficult to connect to democracy. They create a private sphere in which the state cannot intervene, a dimension of the life of citizens that is not for others to intrude in. These rights are generally taken to include the right to privacy, freedom of conscience and the right to private property. Although Karl Marx once characterised these rights as those of the “the restricted individual, withdrawn into himself . . . and separated from the community”,43 and in that sense made them appear to be antithetical to the democratic ideal, there are ways of understanding these rights as fundamental to the existence of democracy. Individual rights, after all, can be seen as a necessary condition for citizens’ full participation in a democratic polity: without a secure place in the world

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to think and act free of state interference, individuals can hardly form political opinions and develop their capacities to deliberate with others. For instance, Frank Michelman has argued that the right to privacy can be understood as a precondition to meaningful political participation as it protects “the intimate associations through which personal moral understandings and identities are formed and sustained”.44 Like other republicans, he also maintains that the right to private property can be thought of as necessary “to imbue citizens with the independence” to engage in popular self-government.45 More recently, Corey Brettschneider has argued that freedom of conscience is essential to democracy because it “ensures that self-rulers will be able to think for themselves about political problems without being subject to external coercion”.46 Nevertheless, the most ambitious attempt to demonstrate that both political and individual rights are fundamentally connected to democracy is Jürgen Habermas’ co-originality thesis. According to Habermas, citizens can only make proper use of their public autonomy, of their ability to make laws in the exercise of their political rights, “if they are sufficiently independent in virtue of an equally protected private autonomy in their life conduct”.47 Nevertheless, this private autonomy, which finds its legal expression in individual rights that protect all citizens equally, can only exist if “they make an appropriate use of their political autonomy”.48 Citizens can thus only exercise their political rights properly if they are able to form their opinions and personalities in a secure private sphere; at the same time, they can only enjoy individual liberties if they exercise their political rights in order to determine the specific interests that need protection through individual rights. In a nutshell, “private and public autonomy require each other”.49 (Habermas also considers necessary, under certain situations, social and economic rights in contexts in which their implementation is required to provide citizens with the opportunity to exercise other rights.50) Only when both types of rights are fully realised are citizens able to see themselves both as authors and addressees of the law: citizens become authors of the law by virtue of the exercise of political rights, as well as its addressees by possessing a private autonomy that serves as a boundary to law. However, while Habermas believes that both political and individual rights are necessary in a democratic legal system, he insists that the specific content of these rights needs to be determined by the people through democratic procedures and cannot be imposed on them or determined by a priori moral norms.51 Moreover, the citizenry should be able to (re)determine the specific content of the fundamental rights when they consider it necessary, even if that means that they might occasionally make decisions that negatively affect democratic rights.52 For Habermas, the act of founding a constitution is not a one-time event in which a set of rights is permanently fixed. “[L]ater generations,” he writes, “have the task of actualizing the still untapped normative substance of the system of rights,” in a dynamic and self-correcting process “which is not immune to contingent interruptions and historical regressions”.53 This is why

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Habermas has expressed reservations about John Rawls’ theory of justice and why he thinks citizens should be able “to conceive of the constitution as a project”.54 For Habermas, Rawls’ theory can be taken to imply a society in which citizens “cannot reignite the radical democratic embers of the original position in the civil life of their society . . . and they find the results of the theory already sedimented in the constitution”.55 It can be granted that authors such as Michelman, Brettschneider and Habermas provide us with persuasive arguments establishing important connections between democracy and individual rights. And there seems to be little doubt that political rights have a fundamental connection to the practice of democracy. It is not clear, however, that these connections explain or justify constitutionalism’s aspiration to the permanence of the constitutional regime (as noted earlier, this aspiration tends to be institutionally expressed by a demanding amendment rule that also places the process of constitutional reform in legislatures rather than in ordinary citizens). They do not provide a ‘democratic’ justification for the aspiration to permanency for three main reasons. First, any right that has significant links to democracy might be interpreted by government (either by the legislature or by the judiciary) in ways that greatly exceed these connections. As a result, the content of the law could be restrained by ‘fundamental rights’, but by fundamental rights that have little or no connection to democracy. For example, one can agree that freedom of expression is necessary for any meaningful form of democratic deliberation. However, when that right is understood by government as protecting corporate funding of political campaigns,56 it is not clear why popular majorities, if they wish to, should not be able to alter the constitution through democratic procedures in order to render that interpretation ineffective. Thus, if one is to take to its ultimate consequences the idea that constitutionalism’s aspiration to permanence seeks to protect democracy from itself, then a constitution should not entrench fundamental rights as such, but only the interpretations of those rights (and institutions) in whose absence there cannot be a democracy.57 If this were possible, then one would have a constitution in which everything would be within the scope of the decision making power of popular majorities, with the only exception of those constitutional forms that are necessary for democracy to exist. In fact, the constitution would also have to entrench those social and economic rights without which the exercise of other fundamental rights would be impossible – after all, it is difficult to engage in political speech when struggling to find shelter. It is, of course, highly unlikely that a society will come to agree on which specific constitutional forms, which manifestation of fundamental rights, will perfectly embody democracy’s conditions of possibility, and as such remain permanently unchangeable. Second, even if there is such a minimal conception of rights, their protection does not necessarily depend on their entrenchment, but on the fact that they are respected as a matter of political practice. For example, in countries with uncodified constitutions, such as New Zealand, rights can be altered and abolished just as any other ordinary law. Nevertheless, New Zealanders enjoy

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fundamental rights to the same extent as other liberal democracies. Some other countries might entrench rights through the most demanding amendment rules possible, but routinely violate them.58 This suggests that in the end, the enjoyment of fundamental rights (in whatever form they take) might be more a matter of political culture than of constitutions and laws.59 Third, a democratic people might want to modify a constitution in order to expand the scope of rights or to add new rights that go beyond these minimal standards. For example, the right to private property could be reframed as requiring a basic income or new (second- and third-generation) rights directed at achieving a great reduction of social and economic inequalities could be recognised.60 In a typical constitutionalist constitution with an entrenched bill of rights, all these changes are as difficult to achieve (procedurally) as the abolition of the right to vote.

Beyond ‘democratic rights’: the extra-democratic effects of constitutions Contemporary constitutional theory seems to have reached a point in which democracy and constitutionalism appear as “partners in principle”,61 to use Dworkin’s phrase. One possible reason for this is that, as suggested above, many of the rights and institutions traditionally protected by liberal constitutions are fundamental to the exercise of democracy. We have seen that there are good arguments that point to different connections between democracy and fundamental rights. Nevertheless, constitutionalism’s fear of constitutional change is not limited to the protection of the rights and institutions that, according to some theorists, are constitutive of democracy; it extends to the entire organisation of government and the economy. Thus, when constitutionalists talk about protecting or advancing democracy by a constitution that is difficult to change, they are also protecting, for example, the traditional liberal system of governance, which comes accompanied by a conception of the market as a central feature of democratic life.62 That is, they are also making difficult more profound constitutional transformations that, while promoting progressive political goals and being perfectly consistent with basic democratic principles, are incompatible with other aspects of liberal governance whose connection to democracy is not very strong or non-existent. It is surprising that the fact that constitutions do much more than simply establish ‘the rules of the game’ (understood as the rules that make democratic decision-making processes possible and enable human beings to govern themselves) is absent from many discussions about the relationship between constitutionalism and democracy. This point is well exemplified in Holmes’ work, which we briefly examined earlier. The problem, as David Schneiderman has written, is that Holmes, as a good constitutionalist, “chooses to stress the structural and procedural aspects of constitutional rules”, ignoring the fact that constitutions also contain other provisions, such “as those concerning

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liberty and property”, which are less obviously related to the formation of a democratic will but have important implications in the daily lives of individuals.63 Put bluntly, liberal constitutions can also promote different economic and political inequalities, and can hinder rather than enable or protect democracy.64 In this respect, it should come as no surprise that a leading American historian (and pace Justice Oliver Wendell Holmes’ famous dissent in Lochner stating that the US constitution was not intended “to embody a particular economic theory”65) has concluded that the founders of the US Constitution sought “to place the new land in the mainstream of acquisitive capitalism”.66 An obvious example is provided by property rights. On its face, the right to private property is neutral: it guarantees, for instance, that any individual’s property will not be confiscated by the state without compensation or trespassed by strangers. And, as we saw earlier, it can even be connected to the possibility of meaningful political participation. But of course, there are many ways of conceiving the right to private property, and some of these ways will have little to do with increasing an individual’s ability to participate in politics. For example, it is difficult to appreciate how the protection of pharmaceutical companies’ property rights, which frequently results in a lack of access to medicines in poor countries, is connected to improving or protecting democracy. Moreover, if the allocation of property is unjustly unequal at the moment at which a constitution is adopted, the inevitable result is protecting an unjust status quo. In such situations, the kind of neutrality that is protected is a ‘status quo neutrality’, to use Cass Sunstein’s term.67 Moreover, not only will those who possess great amounts of property tend to enjoy greater degrees of political influence, but those who do not possess any will frequently lack the time and energy to even be involved in political activity. The anti-democratic (and conservative) character of constitutions impervious to change can be observed clearly in the following context. Suppose, for example, that a social movement is promoting important changes to the way property is regulated in a determinate jurisdiction with the objective of increasing the state’s capacity to intervene in the economy. If property rights are entrenched, that movement would probably seek to alter the constitution.68 When attempting to do so, however, it will most likely be confronted with a constitution that is not only very difficult to change, but whose change lies exclusively in the hands of government officials and could easily be blocked by a minority of ordinary legislators. It would be highly unlikely that the answer ‘the constitution is difficult to change in order to allow people to govern themselves’ would satisfy them, and understandably so. There is an obvious constitutionalist rejoinder to this argument. The problem is not the constitutional text or the fact that it can only be amended by supermajorities: many constitutional provisions, particularly those contained in a bill of rights, are abstract and can be interpreted in a number of ways. In fact, in many countries the scope and limits of rights (including property rights) are the result of the ways they have been interpreted by

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courts. Courts, however, are not always on the side of social justice. As Richard Ford, writing in a US context, has observed, there are many reasons to be sceptical that “any significant durable successes in terms of egalitarian distribution of social resources” can be achieved through constitutional litigation.69 In a similar vein, Michelman has rightly pointed out that courts seeking to enforce traditional constitutional protections can easily get in the way of different types of social reforms: Judges honouring claims to constitutional protection for freedoms of speech and association can stymie efforts to fashion a set of media policies aimed against undue concentrations of power to control public discourse, or a set of electoral practices designed to minimise conversions of economic into political power. Judges honouring claims to private liberty, property, and freedom from racial classifying may block employment legislation directed toward equal opportunity or decent conditions of work, or housing legislation aimed at giving everyone a chance for adequate housing.70 Perhaps more importantly, judicial interpretations of rights become part of the constitutional reality, alterable only through a subsequent court ruling or through a constitutional amendment.71 When looked at from a democratic perspective, this is particularly problematic since, as we have seen, constitutions, as well as their official interpretations, can have important extra-democratic effects. Accordingly, placing their content beyond the scope of democratic politics cannot be defended in terms of protecting democracy from itself, particularly when some of the changes that might be considered ‘unconstitutional’ would likely improve the quality of life, as well as the prospects for participation and deliberation on public issues, of many citizens. A liberal constitution is not simply “a charter that makes law-making possible”, a document that should not be “cluttered up with amendments relating to substantive matters”, as these matters come accompanied by an “insidious danger [that] lies in the weakening effect they would have on the moral force of the Constitution itself”, as Professor Lon Fuller once wrote.72 Liberal constitutions are already cluttered up with substantive matters and they do not merely set up the procedures through which ordinary laws are adopted. Constitutions also set up the basic structure of government and the types of structures and institutions they create might not be particularly conducive to democracy; yet they can only be altered with great difficulty. There are, naturally, different sorts of arguments against this kind of structural change, particularly arguments that point towards the need for political stability.73 Stability, however, cannot mean that these structural elements can never be changed (that would be petrifaction rather than stability), and yet that is in practice the effect that rigid constitutions have. Thus, for example, in the US as well as in other countries, there is a considerable amount of literature about

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the allegedly undemocratic character of judicial review of legislation. There are also other mechanisms and institutions, such as national recall referendums, the adoption of an electoral system based on the principle of proportional representation, and unicameralism, which perhaps would increase the quality of democracy. Abolishing judicial review, or adopting any of the previously mentioned mechanisms and institutions, might require alterations in the constitutional text that, even if supported by great majorities of the population, would be very difficult to achieve in a system in which the traditional obstacles to constitutional amendments are present and in which the power of constitutional reform lies in the exclusive hands of government officials.74 In short, there are many ways of democratising a political system that require fundamental constitutional re-making, and the fact that those changes lie outside the scope of democratic politics can hardly be made consistent with a commitment to democracy. Democracy, as suggested earlier (and as will be argued in the next chapter), is not limited to ordinary law-making; that is, to the kind of activities that take place inside legislatures. In the context of constitutional change, democracy mandates the creation of opportunities for popular participation in the production of the fundamental laws. And popular participation in constitutional change would be meaningless if it did not occur in a context in which citizens find their constitution radically open, susceptible to any kind of modification.

Concluding remarks This chapter introduced the ideal of constitutionalism, stressing some of the ways in which it finds itself in tension with democracy. It also considered different attempts to show that, despite these ‘apparent’ tensions, constitutionalism and democracy are in fact two sides of the same coin. More specifically, it examined the argument that, because constitutionalism protects certain rights that are necessary for the very existence of democracy, there cannot be a democracy without constitutionalism. Although that idea might have some force with regard to certain rights (interpreted in certain ways), it cannot explain why an entire constitution (which does much more than simply protect the rights that make democracy possible) must be entrenched and placed beyond the scope of democratic politics. The next chapter will delve deeper into the relationship between constitutionalism and democracy. It will examine the ways in which traditional approaches to democracy (the substantive and procedural approaches) operate almost exclusively in the context of democratic governance and thus neglect the second dimension of democracy: the relation of citizens to their constitution. As we will see, the second dimension of democracy is not only important for the question of democratic legitimacy but it also allows us to isolate the tensions and conflicts between constitutionalism and democracy and, therefore, to understand them better.

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Notes 1 Richard Bellamy and Dario Castiglione, ‘Review Article: Constitutionalism and Democracy: Political Theory and the American Constitution’, British Journal of Political Science 1997, vol 27, p 595. 2 Stephen M. Griffin, ‘Constitutionalism in the United States: From Theory to Politics’, Oxford Journal of Legal Studies, 1990, vol 10, p 202. 3 Michel Rosenfeld, ‘Modern Constitutionalism as Interplay Between Identity and Diversity’, in Michael Rosenfeld (ed), Constitutionalism, Identity, Difference, and Legitimacy, Durham: Duke University Press, 1994, p 5. 4 András Sajó, Limiting Government: An Introduction to Constitutionalism, Budapest: Central European University Press, 1999, p 39. 5 John Rawls, Political Liberalism, New York: Columbia University Press, 2005, p 233. 6 Giovanni Sartori, ‘Constitutionalism: A Preliminary Discussion’, American Political Science Review, 1962, vol 56(4), p 862. 7 There is, of course, much more to the ideal of the rule of law. See Lon Fuller, The Morality of Law, New Haven: Yale University Press, 1965; Joseph Raz, ‘The Rule of Law and its Virtue’, in The Authority of Law: Essays on Law and Morality, Oxford: Clarendon Press, 1979; Mark Bennett, ‘ “The Rule of Law” Means Literally What it Says’, Australian Journal of Legal Philosophy, 2007, vol 32, p 190. 8 For instance, countries such as the United Kingdom and New Zealand, which have unwritten or partially unwritten constitutions, adhere to the ideal of constitutionalism and effectively limit political power. 9 Lycurgus, who according to Greek mythology was a direct descendant of Hercules and the author of the Spartan constitution, persuaded Spartans to promise that they would not alter the new constitution until he returned from the Delphic Oracle. When the Oracle revealed to him that he had prepared a good constitution, he killed himself and had his ashes scattered in the ocean so that no one could ever maintain that he had returned in any form. The constitution remained unaltered for 500 years. Dennis Thompson, ‘Democracy in Time: Popular Sovereignty and Temporal Representation’, Constellations, 2005, vol 12, p 251. Interestingly, when asked about what kind of constitution he wanted for France, Robespierre (who was not very successful in creating stable constitutions) is said to have replied: “That of Lycurgus.” Alfred Cobban, A Modern History of France, Vol 1: 1715–1799, Penguin Books, 1963, p 179. 10 The US Constitution provides a good example of immutability: not only it is extraordinarily difficult to amend (through a process that can hardly be described as democratic and participatory) but it is always presented in its original form, with amendments not typographically integrated into the text but appearing at the end. See Claude Klein, ‘A Propos Constituent Power: Some General Views in a Modern Context’, in Antero Jyränky (ed), National Constitutions in the Era of Integration, The Hague: Kluwer Law International, 1999, p 33, n 12 11 Quoted in Lucien Jaume, ‘Constituent Power in France: The Revolution and its Consequences’, in The Paradox of Constitutionalism: Constituent Power and Constitutional Form, Martin Loughlin and Neil Walker (eds), Oxford: Oxford University Press, 2007. 12 Quoted in Antonio Negri, Insurgencies: Constituent Power and the Modern State, Minneapolis: University of Minnesota Press, 1999, p 1. The declaration was issued on 15 December 1798. 13 Thomas Jefferson, ‘Letter to Samuel Kercheval, July 12, 1816’, in The Portable Thomas Jefferson, Penguin, 1975, pp 558–559. 14 Ibid., p 559.

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15 The idea of periodic conventions was also present in Rousseau: “Besides the extraordinary assemblies unforeseen circumstances may demand, there must be fixed periodical assemblies which cannot be abrogated or prorogued, so that on the proper day the people is legitimately called together by law, without need of any formal summoning.” Jean-Jacques Rousseau, The Social Contract and the Discourses, London, Campbell Publishers, 1993, p 259. Those periodic assemblies would ask two questions: “The first is: ‘Does it please the Sovereign to preserve the present form of government?’ The second is: ‘Does it please the people to leave its administration in the hands of those who are actually in charge of it?’ ” Ibid., p 269. During the French Revolution, this idea was defended by Condorcet and also suggested by Sieyes. See Jaume, ‘Constituent Power in France’, p 71, n 16. Some state constitutions in the US contain provisions that mandate periodic constitutional conventions. See for example Article XIX, sec 2 of the Constitution of New York (1938): “§2. At the general election to be held in the year nineteen hundred fifty-seven, and every twentieth year thereafter, and also at such times as the legislature may by law provide, the question: ‘Shall there be a convention to revise the constitution and amend the same?’ shall be submitted to and decided by the electors of the state; and in case a majority of the electors voting thereon shall decide in favor of a convention for such purpose . . .” 16 Jefferson, ‘Letter to Samuel Kercheval’, p 560. 17 Clinton Rossiter (ed), The Federalist Papers no. 49, New York: New American Library, 1961. 18 In fact, he at least favoured an important constitutional amendment: in a letter to George Hay (23 August 1823), Madison argued in favour of modifying the rules for electing the President. See Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How the People can Correct It), New York: Oxford University Press, 2006, p 95. 19 Rossiter, The Federalist Papers. 20 Ibid. 21 Kathleen Sullivan, ‘What’s Wrong with Constitutional Amendments’, in Louis Michael Seidman and Virginia Sloan (eds), Great and Extraordinary Occasions: Developing Guidelines for Constitutional Change, New York: Century Foundation Press, 1999, pp 39–40. 22 Kathleen Sullivan, ‘Constitutional Amendmentitis’, The American Prospect, Fall, 1995. 23 Sullivan, ‘What’s Wrong with Constitutional Amendments’, p 41. 24 Sullivan, ‘Constitutional Amendmentitis’, 37. Sullivan’s rejection of formal constitutional amendments, of course, implicitly defends other modes of amending the constitution (e.g., amendments by judicial interpretation). On the relationship between interpretation and amendments, see David Strauss, ‘The Irrelevance of Constitutional Amendments’, 114 Harvard L. Rev. 1457 (2001). 25 See Bruce Ackerman, ‘Higher Lawmaking’, in Sanford Levinson (ed), Responding to Imperfection: Theory and Practice of Constitutional Amendment, Princeton: Princeton University Press, 1995; Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People can Correct It), New York: Oxford University Press, 2006; Akhil Reed Amar, ‘Popular Sovereignty and Constitutional Amendment’, in Responding to Imperfection; Stephen M. Griffin, ‘And the Nominee is . . . Article V’, in William Eskridge and Sanford Levinson (eds), Constitutional Stupidities, Constitutional Tragedies, New York: New York University Press, 1998; and Donald Lutz, ‘Toward a Theory of Constitutional Amendment’, American Political Science Review, 1994, vol 88, p 362. 26 Of course, this aspiration to permanence is not limited to US constitutional thought. For instance, a few weeks before the recent military coup in Honduras

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The end of constitutionalism (which was a reaction to President Manuel Zelaya’s proposal to call a constituent assembly for the adoption of a new constitution), a well-known Honduran historian expressed that the Constitution of Honduras did not need any reforms, since it was “complete”, and just needed “to be fully applied”. El Heraldo, ‘La Cuarta Urna es Una Locura en Honduras’, 16 March 2009. Available: www. elheraldo.hn/content/view/full/96983> (accessed 3 September 2011). Christopher Eisgruber, Constitutional Self Government, Cambridge, MA: Harvard University Press, 2007, p 13. Ibid., p 12. Stephen Holmes, ‘Precommitment and the Paradox of Democracy’, in Jon Elster and R. Slagstad (eds), Constitutionalism and Democracy, Cambridge: Cambridge University Press, 1988. Ibid., p 230. Despite the frequently repeated statement that constitutions bind present-day majorities because they were adopted by supermajorities, the route usually followed by most constituent assemblies around the world is to adopt constitutions through simple majority rule (sometimes subjecting them to a popular referendum before they come into effect), while at the same time requiring legislative supermajorities (and, again, sometimes popular referendums) for constitutional amendments in the newly created constitution. For example, one of the most recently adopted constitutions at the time of writing this book, the Constitution of Ecuador (2008), was created through a constituent assembly that had the power to approve the constitutional text (that would then be submitted to the electorate in a referendum) through the affirmative vote of a majority of its members. However, the ordinary amendment rule they created requires legislative supermajorities plus popular ratification (Article 441). The case of the United States is no different: the US Constitution was in fact ratified by simple majority rule (in some cases the vote was very close) in state conventions, while the amendment process of Article V is highly counter-majoritarian (requiring a two-thirds supermajority at the Federal Congress and the ratification of threefourths of state legislatures or conventions). See Lawrence Sager, ‘The Birth Logic of a Democratic Constitution’, in John Ferejohn, Jack N. Rakove and Jonathan Riley (eds), Constitutional Culture and Democratic Rule, Cambridge: Cambridge University Press, 2002, p 111. As will be seen in Chapter 7, these kinds of provisions are not necessarily inconsistent with a weak form of constitutionalism. The term ‘unwritten constitution’ might not accurately describe the constitution of countries such as the United Kingdom and New Zealand. Many of the constitutional norms of those countries can be found in some written legal instruments. In a way, what ‘unwritten’ means is: susceptible to being changed through the same kind of formal legislative process by which ordinary laws are changed. Ronald Dworkin, A Bill of Rights for Britain, London: Chatto & Windus, 1990. Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution, Cambridge, MA: Harvard University Press, 1996. Jeremy Waldron, Law and Disagreement, New York: Oxford University Press, 1999, p 212. Dworkin’s and Waldron’s views will be elaborated in Chapter 3. The question of whether these rights pre-exist the constitution is, in my view, a different one. That is to say, the idea of entrenchment is a juridical idea, one that supposes that someone has the legal ability of placing certain content outside the scope of ordinary legislative power. There are exceptions to this general view. For example, the German Constitutional Court has come close to arguing that there are certain constitutional principles that cannot be touched, even by the people in the exercise of constituent power. See

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41

42 43 44 45 46 47 48 49 50

51 52 53 54

55

56 57

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‘The Southwest Case, 1 BverfGE 14 (1951)’, in Walter F. Murphy and Joseph Tanenhaus (eds), Comparative Constitutional Law, New York: St. Martin’s Press, 1977 and more recently the Lisbon Case, BverfG, 2 BvE 2/08 (2009). I use the term ‘fundamental rights’ to refer to civil and political rights, also known as first-generation rights. However, it is not my intention to suggest that second-, third- and fourth-generation rights are not fundamental or unimportant (in fact, in many cases they serve as pre-conditions for any meaningful exercise of civil and political rights). In other words, under the term ‘political rights’ I include those rights that are necessary to formally participate in a democratic decision-making exercise (e.g., right to vote), as well as those rights necessary for expressing political opinions and deliberating about them with others. Holmes, ‘Precommitment and the Paradox of Democracy’, p 235. Karl Marx, ‘On the Jewish Question’, in Francois Furet, Marx and the French Revolution, Chicago: University of Chicago Press, 1984, p 110. Frank Michelman, ‘Law’s Republic’, Yale Law Journal, 1988, vol 97, p 1536. See also Hannah Arendt, The Human Condition, Chicago: University of Chicago Press, 1998. Frank Michelman, ‘Possession vs. Distribution in the Constitutional Idea of Property’, Iowa Law Review, 1987, vol 72, p 1334. See also Philip Pettit, Republicanism, Oxford: Oxford University Press, 1999, pp 160–161. Corey Brettschneider, Democratic Rights: The Substance of Self-Government, Princeton: Princeton University Press, 2007, p 45. Jürgen Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’, Political Theory, 2001, vol 29 (6), p 767. Ibid. Jürgen Habermas, ‘On the Internal Relation Between the Rule of Law and Democracy’, European Journal of Philosophy, 1995, vol 3(1), p 12. Habermas specifically mentions “[b]asic rights to the provision of living conditions that are socially, technologically, and ecologically safeguarded . . .” Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge: MIT Press, 1996, p 123. For a discussion, see David Ingram, Habermas Introduction and Analysis, Ithaca: Cornell University Press, 2010, pp 169–170, 184–189. Habermas, Between Facts and Norms, p 104. Ibid., pp 125–126. Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’, p 774. Jürgen Habermas, ‘Reconciliation Through the Public Use of Reason: Remarks on John Rawls’ Political Liberalism’, The Journal of Philosophy, 1995, vol. XCII(3), p 128. John Rawls, A Theory of Justice, Cambridge, MA: Harvard University Press, 1999. Ibid. It is not clear, however, how this sort of political event is supposed to take place. Because, as we will see later, the democratic legitimacy of a constitutional regime depends precisely on its susceptibility to “re-constitution”, this book can be understood as an argument in favour of providing citizens with the means to “reignite the radical democratic embers of the original position”. In the United States, see Citizens United v Federal Election Commission, 130 S Ct 876 (2010). A similar argument, with respect to judicial review of legislation, has been defended by John Hart Ely. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review, Cambridge, MA: Harvard University Press, 1980. The point here, however, is not about which rights should be supreme over ordinary legislation, but the entrenchment of rights in a rigid constitution.

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58 Consider, for example, Article 67 of the Constitution of the Democratic People’s Republic of Korea: “Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association. The State shall guarantee conditions for the free activity of democratic political parties and social organizations.” 59 See Waldron, Law and Disagreement, p 308. 60 See for example, C.B. Macpherson, Democratic Theory: Essays in Retrieval, Oxford: Clarendon Press, 1977. 61 Ronald Dworkin, ‘Equality, Democracy, and the Constitution: We the People in Court’, Alberta Law Review, 1990, vol 28, p 346. 62 Macpherson, Democratic Theory, pp 3–23. 63 David Schneiderman, Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise, Cambridge: Cambridge University Press, 2007, p 12. 64 This is well exemplified in critiques posed by the left to liberal constitutionalism. See for example Stephen Hill, ‘Constitutionalizing Inequality and the Clash of Globalization’, International Studies Association, 2002, vol 4(2). 65 Lochner v New York, 198 U.S. 45, 75–76 (1905) (Holmes, J., dissenting). For a critique of Holmes’ dissent, see James W. Ely Jr, ‘The Constitution and Economic Liberty’, Harvard Journal of Law and Public Policy, 2012, vol 35(1). 66 Kermit L. Hall, The Magic Mirror: Law in American History, Oxford: Oxford University Press, 1989, p 69. 67 Cass Sunstein, The Partial Constitution, Cambridge, MA: Harvard University Press, 1998. 68 New Latin American constitutions, for example, in addition to recognising different forms of property (e.g., public, private, communitarian, mixed, collective, etc.), condition the enjoyment of private property to a set of requirements (e.g., that it serves a social function). See for example Article 321 of the Constitution of Ecuador (2008), and Article 56 of the Constitution of Bolivia (2009). 69 Richard T. Ford, ‘Hopeless Constitutionalism, Hopeful Pragmatism’, in Jack Balkin and Reva Siegel (eds), The Constitution in 2020, Oxford: Oxford University Press, 2009, p 146. 70 Frank Michelman, ‘Economic Power and the Constitution’, in The Constitution in 2020, p 49. 71 Or, in certain situations, through the adoption of an ordinary law inconsistent with the judicial interpretation of a particular right but whose constitutionality is not challenged by anyone. 72 Lon Fuller, ‘American Legal Philosophy at Mid Century’, Journal of Legal Education, 1954, vol 6, 463–464. 73 Eisgruber, Constitutional Self-Government. 74 Judicial review of federal legislation in the US was established by a decision of its Supreme Court (Marbury v Madison, 5 U.S. 137 (1803)), but a constitutional amendment would probably be needed to abolish it as a juridical possibility.

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

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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

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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. Democratic governance 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?

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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

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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

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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.

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The theory and practice of substantive and procedural 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

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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 when the conditions that protect the status and interests of each individual as a full partner are met. For instance, if a community decides, by majority rule (or by unanimity for that matter), to ignore the interests or rights of some individual or group, its decision is not only unjust, it has nothing to do with democracy. In Dworkin’s view, deciding whether a law merits the adjective ‘democratic’ is not a matter of looking at the procedure from which it resulted; what is essential is to confront its content with the theory of equal partnership.31 If the theory allows for such content, then the decision in question can be considered democratic, no matter if it is taken by a legislative majority or by a non-representative institution. This substantive conception also applies

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to constitutions. For Dworkin, a constitution serves democratic ends insofar as it contains the right abstract principles. Who created the constitution, who is allowed to change it and how is secondary. The democratic credentials of a country’s fundamental laws depend not on when or by whom those laws were made, but on their content.32 Thus, for example, if the fundamental laws provide for a “more-or-less popularly accountable day-to-day government based on a more-or-less equally distributed franchise; for non-discriminatory law-making and prohibition of caste distinctions; for protection against arbitrary and oppressive uses of state powers; [and] for strong rights of moral autonomy”, we have a democratic regime.33 The partnership view of democracy also has procedural implications. That is, when there are disagreements about whether a proposed law or policy is consistent with the theory of equal partnership, there must be a procedure in place for reaching collective decisions. These procedures must show equal concern for the human beings that live within the state’s borders. In Dworkin’s view, this is best achieved with widespread and roughly equal suffrage, as “[o] fficials elected by a broad swathe of the population will do a much better job of protecting the weak against special privilege and tyranny than officials elected by and responsible to only a few”.34 The idea is that the test of whether a constitutional arrangement shows genuine procedural equality is to ask “whether that arrangement is likely to produce policies that respect substantive equality in concern for people’s lives”.35 Nevertheless, this does not provide any reason to think that majorities should be allowed to alter a constitutional structure ‘best calculated’ to ensure equal concern: “We may better protect equal concern by embedding certain individual rights in a constitution that is to be interpreted by judges rather than by elected representatives, and then providing that the constitution can be amended only by supermajorities.”36 Under this view, a democratic regime is one whose officials are elected under procedures that allow a majority of the people to replace them at regular intervals and that, “by and large”, treats individuals with equal concern.37

Ignoring the second dimension of democracy The substantive and procedural approaches discussed in the previous section not only lack a proper account of democracy at the level of the fundamental laws, but tend to negate it or at least obscure it. Dworkin’s partnership view, by presenting the traditional content of a liberal constitution as democracy’s precondition, makes the question of democracy at the level of the fundamental laws simply irrelevant. In his ‘partnership democracy’ all that matters is democracy at the level of governance, and even there it fails to meet the demands of the democratic ideal. That is to say, democracy cannot simply be, as Dworkin suggests, a system that gives “the final verdict on who leads it to many millions of people”; it must also attempt to give ordinary citizens a role in the activity of governing.38

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Under Dworkin’s view, if a constitution provides for the rights and institutions that make partnership democracy possible, it does not make sense to be concerned about who adopted it and how, or to worry about the possibility of important constitutional transformations. In fact, the very idea of democracy at the level of the fundamental laws, of ordinary people meddling with the constitutional regime, is a threat to partnership democracy. That is why Dworkin, the substantive democrat, favours an amendment procedure that makes constitutional change difficult and unlikely. Put another way, under Dworkin’s substantive conception, there could be a democracy under a ‘given’ (and almost impossible to amend) constitution. That is to say, someone (say a group of Western experts) writes a constitution that provides for an elective legislative assembly (and the protection of traditional liberal rights) and tells a group of people: there is your democratic constitution, now, govern yourselves ‘democratically’.39 For all the merits of his approach, what Dworkin does is to put the constitutional regime out of the scope of democratic politics, and by doing so, he might be guilty of breeding what Jonathan Wolff has dubbed “the enfeeblement of the political”: by attempting to protect society from the “tyranny of the majority”, Dworkin shrinks the sphere of democratic decision-making to a point in which democracy and constitutionalism become indistinguishable.40 While Dworkin’s partnership view seems to negate the second dimension of democracy, Waldron’s conception simply obscures it. His procedural approach has no account of democracy at the level of the fundamental laws; it is as if democratic governance enclosed all forms of democratic politics. The problem stems from Waldron’s defence of parliamentary supremacy, which would do away with the distinction between higher and ordinary laws and comes accompanied by a problematic overestimation of legislatures. Waldron’s attack of judicial review of legislation rests on the idea that when there is a disagreement about rights, it should be the people whose rights are in question who should decide what rights they have. But of course, when he says that ‘the people should decide’, he is not arguing in favour of some form of government by referendum, or suggesting that all citizens should come together in an assembly and deliberate about what is the best interpretation of a constitutional right. When Waldron talks about ‘the people’, he is talking about the legislature, which is why he usually writes ‘the people or their representatives’.41 The problem with this view is that while it gives to the legislative assembly what it takes away from the judiciary, it comes very close to equating ‘people’ with ‘legislature’, thus rendering the actual participation of ordinary citizens unnecessary in framing the content of the fundamental laws.42 His assertion that every time there is a disagreement about rights, “the people whose rights are in question have the right to participate on equal terms in that decision”,43 does not mean much if it only means that an ordinary legislature will do all the work. Democracy at the level of the fundamental laws cannot merely mean that the people are allowed to have elected representatives make decisions in their

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name. Although the legislature possesses a democratic pedigree that the judiciary lacks, it cannot be the main site for the exercise of the second dimension of democracy. I have to be clear here on what I mean. Although I am arguing that Waldron’s approach obscures the second dimension of democracy, I am not claiming that he is wrong in his attack on judicial review, that the institution of representation should be abandoned or that legislatures should not have the final word (with regard to the courts) on the requirements of constitutional rights. In fact, I very much agree with these views, and I think they are the views that democratic governance requires.44 More importantly, I am not arguing that Waldron really thinks that democracy can be exhausted in a legislature.45 My claim is that his defence of parliamentary sovereignty and of the ‘right to participate’ obscures the meaning and demands of democracy at the level of the fundamental laws (as there would simply be no fundamental laws to change through particularly participatory procedures). In Waldron’s defence, one might say that his approach does not exclude an account of the second dimension of democracy and that, in fact, it could be made compatible with it.46 But this is precisely my point: procedural accounts of democracy, as substantive ones, operate only at the level of democratic governance and therefore have little to say about democracy at the level of the fundamental laws. In that sense, my critique of Waldron and Dworkin is not symmetrical, for although Dworkin does not leave space for the second dimension of democracy (he sees a constitution that contains the right abstract principles as one that should not be meddled with and that should only be amended in exceptional cases by supermajorities), Waldron’s procedural approach may be seen as simply incomplete in that respect. When we look at the United Kingdom’s and New Zealand’s constitutional arrangements, which come very close to the practical realisation of Waldron’s theory, one can see that this conception can quickly become problematic. Those systems, sometimes depicted as the “perfect victory”47 of democratic theory, operate under the doctrine of parliamentary sovereignty. As A. V. Dicey explained in his famous treatise, a constitutional system consistent with the traditional conception of parliamentary sovereignty normally lacks a clear distinction between ordinary and constitutional laws.48 Dicey understood very well the immediate implications of this doctrine (and in fact later in his life rebelled against them)49: the people, even if they are sovereign in some sort of abstract way, can only act through parliament. This is why he agreed with de Tocqueville’s description of the English Parliament as “at once a legislative and constituent assembly”.50 In such a system, the second dimension of democracy is negated in important ways: regardless of how democratic such a system might be at the level of daily governance (e.g., it does not give judges the power to strike down legislation, it might operate under the fairest electoral system imaginable), it would fail to provide citizens with the opportunity to deliberate, propose and decide on the content of the fundamental laws. That is to say, by blurring the distinction between ordinary and constitutional law, we also end up blurring

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the distinction between parliament and people. In fact, any strong distinction between parliament and the people threatens the very basis of the doctrine of parliamentary sovereignty, as it opens the way for arguments that seek to justify the existence of legal limitations on parliament’s ‘unlimited’ law-making power (the most common approach concluding that those limitations are to be enforced by the judiciary) by reference to a superior popular sovereign.51 Under this type of arrangement, recommended at the level of theory by Waldron, an ordinary legislative assembly ends up doing all the work, and popular participation is limited to electing legislators every few years.52 There is usually no space for extraordinary mechanisms of constitutional change since legislators have jurisdiction over all law changes, regardless of how fundamental. In that respect, a traditional system of parliamentary sovereignty, which usually accompanies an unwritten constitution, amounts to the institutional elimination of the second dimension of democracy. Of course, a sovereign parliament always has the possibility of consulting the population before adopting a law that alters basic constitutional principles, but sovereign parliaments rarely do that (why do it, if you are sovereign?).53 For example, in the United Kingdom there have only been two national referendums in history: in 1975, electors were asked whether the UK should remain part of the European Community and, more recently, in 2011, on a proposed change to an ‘Alternative Vote’ electoral system.54 In New Zealand, there have been much more government-initiated referendums on constitutional and nonconstitutional issues (although there have been major constitutional changes that have not been adopted after a referendum).55 Moreover, New Zealanders have the opportunity to initiate non-binding referendums through the collection of signatures on any issue.56 In any case, a referendum is not a sufficient mechanism for the exercise of democracy at the level of the fundamental laws. Referendums, as we will see in the next chapter, do not involve the degree of popular participation that the second dimension of democracy requires. The very nature of an unwritten constitution also runs counter to the demands of democracy at the level of the fundamental laws. Not originating from a conscious act of self-government but developed over time as a result of conventions and practices among political elites, an unwritten constitution does not (almost by definition) result from democratic constitution-making process. The other major possibility, a system of constitutional supremacy like that present in the United States, is not very promising either. Even though susceptible of being born out of a democratic constitution-making episode and based on a radical distinction between constitutional and ordinary law, such a system does not necessarily fare better in giving citizens the opportunity to participate in episodes of democratic re-constitution. In fact, it might even do worse than the traditional system of parliamentary sovereignty. As discussed in the previous chapters, the typical liberal constitution is very difficult to change and its transformation usually lies exclusively in the

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hands of legislatures. Reputed to reflect the ‘will of the people’, its modification is placed out of the scope of ‘transient’, ‘passionate’ or ‘tyrannical’ presentday majorities (or supposed to take place through judicial interpretation). Constitutions can therefore only be changed by supermajorities (which means that a minority will be able to veto any proposal for change), and the relevant ‘supermajorities’ are not ordinary citizens but legislators. The inevitable result is a system in which citizens find the constitutional regime already written for them, and lack the legal faculty of proposing, much less of deliberating and deciding, on the content of the constitution. It is interesting that legislators, while subject to the difficult requirements of a constitutional amendment formula, are nonetheless allowed to do all of these things (that is, proposing, deliberating and deciding on the content of the constitution),57 whereas the people, whose will is supposed to be reflected in the constitution, is not.

The second dimension of democracy: approaching constituent power My purpose in the previous sections was not only to establish a distinction between democratic governance and democracy at the level of the fundamental laws, but also to show how the latter is obscured or negated in familiar approaches to democracy. I briefly examined the kind of issues connected to this second dimension, but I did not consider the specific constitutional forms proper to it and there is a reason for this: democracy at the level of the fundamental laws cannot be conceived as a regime or identified with a constitution; it is, rather, a moment in the life of a democratic polity that a juridical order makes possible. In this section, building on Sheldon Wolin’s democratic theory, I introduce this view. The idea that I take from Wolin is that of democracy (in what I call its second dimension) as a moment rather than as a form of government, a democracy that Wolin describes as fugitive to emphasise its necessarily episodic and occasional character.58 My contention, it should be clear from the beginning, is not that democracy as such is unrelated to constitutional forms. As I stated above, there are certain rights and institutions (whatever specific form they may take) that are necessary not only for democratic governance, but for the very existence of democracy, and there are also mechanisms that might facilitate the realisation of the democracy at the level of the fundamental laws. What I will suggest is that the second dimension of democracy is not a matter of entrenching basic principles, of finding the ‘most democratic form of government’, but a political practice that takes place outside the confines of the established constitution (no matter how democratic this constitution might be thought to be). Wolin maintains that to think of democracy and constitutions as naturally belonging together, as each incomplete without the other, is commonplace in contemporary societies.59 It is usually assumed, Wolin suggests, “that democracy is the sort of political phenomenon whose teleological or even ideological

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destination is a constitutional form”.60 A constitutional form is a structure to which all politics should conform; whatever falls outside it is seen as illegal, improper and anti-political.61 That, according to Wolin, has been the destiny of modern democracy: to be fitted into constitutional forms that allow only a determinate amount of popular politics to take place. For instance, constitutions regulate the periodicity of politics and encapsulate them in ritualistic processes such as giving the ‘voice of the people’ the opportunity to ‘speak’ every few years through the election of government officials.62 When democracy is settled into its ‘proper’ form (becoming a constitutional democracy), writes Wolin, it is rendered predictable and easily becomes the object of manipulation.63 According to the discourse of liberal constitutionalism, these constitutional forms are designed to protect democracy from itself: a democracy free of forms is synonymous with revolution, inherently instable and has a tendency to undermine the power of law and the authority of government.64 Instead of advancing a conception of constitutionalism that avoids democracy’s inclination towards revolution, while at the same time preserving its best features, Wolin proposes to use these very attacks as a basis for an aconstitutional democracy theory.65 Under this conception, it is not assumed that the natural direction of democracy is towards greater institutionalisation. Going beyond the emphasis on institutional arrangements in which constitutionalism has priority over democracy, Wolin invites us to think about democracy as episodically dictating the contents of a constitution and as representative of a moment in the life of a polity.66 In Wolin’s view, democracy cannot be seen as completing its task by establishing a constitutional form and then being fitted to it.67 A constitution should not be understood as the fulfillment of democracy but as the transfiguration of the democratic ideal into a regime; and democracy should be reconceived as a rebellious moment in which – what Wolin calls – ‘the political’ is remembered. The political refers to the idea that a society composed of human beings with different world views and interests can experience moments of commonality through public deliberations; that is, political moments in which collective power is used to promote or protect the wellbeing of society.68 The political should be distinguished from politics, which refers to the endless struggle among organised powers (e.g., political parties) over “access to the resources available to public authorities”.69 Unlike politics, which is continuous and endless, the political is episodic and rare.70 The obstacle faced by contemporary democracies is not, as it is usually argued, that the realisation of the rule by the people is incompatible with the size and complexity of modern societies.71 The problem is that contemporary democratic theory comes accompanied by a conception of politics as a ceaseless activity directed at assuming control or influence over the state apparatus.72 Moreover, any alternative conception of democracy centred in the ‘citizen-as-actor’ is in conflict with the modern idea of the state as the fixed centre of political life. Democracy, says Wolin,

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[N]eeds to be reconceived as something other than a form of government: as a mode of being that is conditioned by bitter experience, doomed to succeed only temporarily, but is a recurrent possibility as long as the memory of the political survives. The experience of which democracy is the witness is the realization that the political mode of existence is such that it can be, and is, periodically lost. Democracy, Polybius remarks, lapses ‘in the course of time’. Democracy is a political moment, perhaps the political moment, when the political is remembered and recreated. Democracy is a rebellious moment that may assume revolutionary, destructive proportions, or may not.73 Wolin’s approach to democracy needs to be understood in the context of his general critique of liberal constitutionalism. For him, a liberal constitution can be used to shape a kind of ‘democracy’ in which the demos is subject to institutional constraints that prevent certain kinds of outcomes, “such as the confiscation of the property of the rich”.74 Not surprisingly, Wolin’s writings stress the fundamental role that popular participation must play in any system that aspires to be democratic, and emphasise the minor role that it plays in contemporary constitutional democracies. Because liberal constitutionalism tends to produce systematic inequalities, he considers imperative the need for the active participation of those who historically have been the most politically disadvantaged: “Given the structural tendencies toward inequalities, political action on the part of the socially and economically disadvantaged becomes the crucial means of saving themselves.”75 However, this active demos does not (and should not) aspire to the taking of state power; on the contrary, it is engaged in local struggles directed at improving the lives of ordinary citizens, such as those for low-income housing, better schools and healthcare.76 The demos does not seek to govern because that would require accommodating itself to bureaucratised institutions that are, by their very nature, hierarchical and elitist.77 In addition, given its material conditions, and the fact that “the wealthy have purchased and nurtured political agents to govern for them”,78 democracy must be episodic and circumstantial.79 Accordingly, the type of politics proper to Wolin’s theory is small scale; its power lies in the multiplicity of different and modest sites dispersed among neighbourhoods, counties, local governments and institutions, and on “the ingenuity of ordinary people in inventing temporary forms to meet their needs”.80 In conceiving democracy as rare and episodic, however, Wolin provides us with a valuable tool to understand the practice of democracy at the level of the fundamental laws. The kind of democracy to which Wolin refers cannot be understood as exemplifying what I have called democratic governance. In fact, at times Wolin even seems to suggest that there is no such thing as ‘democratic’ governance: “Governing means manning and accommodating to bureaucratised institutions that, ipso facto, are hierarchical in structure and elitist, permanent rather than fugitive – in short, anti-democratic.”81 By doing this,

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Wolin neglects the importance of popular participation in the context of daily governance, and in that respect, his conception results in the opposite problem to that of Waldron and Dworkin. My approach seeks to avoid that problem by seeing what Wolin calls fugitive democracy as a manifestation of democracy at the level of the fundamental laws. That is to say, fugitive democracy is one of the possible manifestations of the democratic ideal. Both dimensions of democracy, I contend, are valuable in themselves. But even if it is clear that Wolin’s conception is not to be confused with democratic governance, neither is it obvious that it should be identified with the second dimension of democracy. Wolin’s focus on small-scale politics and local struggles makes his take on constitutional change very difficult to decipher: he seems to suggest that, in light of their material conditions and immediate needs, it does not make sense for ordinary citizens to think about challenging the ‘constitutional essentials’ of an established juridical order. At other times, however, Wolin appears more optimistic. For instance, he proposes to replace constitutional democracy with democratic constitutionalism, which he defines as a situation in which “democratisation has dictated” the content of the constitution and is “representative of a moment rather than a teleologically completed form”.82 Although this is not the place to attempt to construct a constitutional theory from Wolin’s writings, my interpretation of Wolin’s idea of democratic constitutionalism is that he is engaged, for the most part, in a discussion of democracy at the level of the fundamental laws. Under this interpretation, the second dimension of democracy is to be identified in the rare and fugitive instances in which an active demos posits the content of a constitution, when ordinary citizens exercise their (constituent) power to re-constitute the juridical order.83 In characterising democracy as fugitive and episodic, Wolin effectively describes the defining characteristic of the second dimension of democracy: a moment in the life of a juridical order rather than a completed constitutional form. The distinction between the two dimensions of democracy, while attributing to democratic governance a daily and continuous character, sees democracy at the level of the fundamental laws as the instance in which citizens come together and attempt to make their association more just; a ‘political moment’, to use Wolin’s terminology. It is precisely this episodic character that makes possible high levels of direct popular participation that are not possible in the context of everyday governance. Understanding the second dimension of democracy as a moment in the life of a juridical order means that it cannot be understood as expressed in a constitutional regime; on the contrary, it seeks to challenge the established constitutional arrangement and to transform it.84 In this sense, the very idea of identifying a determinate constitutional form with democracy’s second dimension would be based on a misconception. Unlike democratic governance, democracy at the level of the fundamental laws is a political practice that never coincides with the established laws and institutions. Its exercise

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can have the purpose of creating new rights or expanding existing ones (or sometimes even limiting them), of changing the structure of governance or founding a new state; it is always in conflict with the liberal idea of containing politics within certain bounds after an act of constitution-making takes place, of a constituent power exhausted after the constitution is in effect.85 It is a democracy that remains forever incomplete and that, when practised, challenges the very constitution that makes it possible.

Concluding remarks That democracy at the level of the fundamental laws cannot be identified with a determinate constitutional form or contained in a constitutional regime does not mean that its exercise is completely independent of the content of a constitution. In fact, there are different mechanisms that might facilitate the practice of democracy in its second dimension, making its exercise more likely by giving citizens the institutional tools to trigger an episode of profound constitutional transformation. Ironically, these types of mechanisms are beginning to appear not in the national constitutions of established Western liberal democracies but in the recently adopted constitutions of several Latin American countries. These new constitutions include, among others, mechanisms that allow ordinary citizens to initiate processes of constitutional reform through the collection of signatures, draft the content of the new provisions to be inserted into the constitution and require the state to call a popular referendum to validate the proposed changes. Some of these constitutions even include provisions that allow ordinary citizens to trigger sovereign assemblies in order to alter the constitution in fundamental ways or to replace the entire juridical order. These institutions will be considered in later chapters, but first we need to explore the democratic ideal further and identify some basic principles that should be taken seriously by any conception of democracy (particularly of democracy at the level of the fundamental laws).

Notes 1 Robert Dahl has also distinguished between the first and second dimensions of democracy, but he uses that distinction in a different way (although there is a certain symmetry between the way Dahl conceives the distinction and the way in which I will use it here). For Dahl, the first dimension of democracy is about the existence of certain rights and opportunities for political participation; the second dimension about actual citizen participation in a country’s political life. Robert Dahl, ‘A Democratic Paradox?’, Political Science Quarterly, 2000, vol 115(1), p 38. In fact, the distinction between ordinary governance and constitutionmaking was already present centuries ago. For example, George Lawson, writing in the seventeenth century, said that politics, understood as “the act of well ordering a commonwealth”, had two parts: the constitution and the administration of the Commonwealth. George Lawson, Politica Sacra et Civilis, Cambridge: Cambridge University Press, 1992. One could also think about democracy at the

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6

7 8

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The second dimension of democracy level of society (e.g., democracy in the workplace) as a third dimension and democracy at the international level as a fourth. This, of course, is outside of the scope of this book. Robert Dahl, Democracy and its Critics, New Haven: Yale University Press, 1989, p 233. Dahl himself sometimes appears to take this view. For a discussion, see Richard Krouse, ‘Polyarchy & Participation: The Changing Democratic Theory of Robert Dahl’, Polity, 1982, vol 14(3), pp 441–463. See for example Benjamin R. Barber, Strong Democracy: Participatory Politics for a New Age, Berkeley: University of California Press, 1984; Joshua Cohen and Charles Sabel, ‘Directly-Deliberative Polyarchy’, European Law Journal, 1997, vol 3, p 313; Allan Hutchinson, The Companies We Keep: Corporate Governance for a Democratic Society, Canada: Irwin Law, 2006. See for example Mark Tushnet, Taking the Constitution Away from the Courts, Princeton: Princeton University Press, 1999. Cf. Joel Colón-Ríos, ‘The Counter-Majoritarian Difficulty and the Road Not Taken: Democratizing Constitutional Amendments’, Canadian Journal of Law and Jurisprudence, 2012, vol xxv. As Habermas has noted, “democratic institutions of freedom disintegrate without the initiatives of a population accustomed to freedom”. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge: MIT Press, 1996, p 130. As we will see in Chapters 6 and 7, a constitutional regime might enjoy democratic legitimacy even if it did not originate in a democratic constitutionmaking process. There is a considerable body of literature that deals with the relationship between constitution-making and democracy, but most authors do not explicitly adopt a strongly democratic posture. See for example Jon Elster, ‘Ways of Constitution-Making’, in Alex Hadenious (ed), Democracy’s Victory and Crisis, Cambridge: Cambridge University Press, 1997; Andrew Arato, ‘Forms of Constitution Making and Theories of Democracy’, Cardozo Law Review, 1996, vol 17, p 191; Dennis C. Mueller, ‘On Writing a Constitution’, in Ram Mudambi and Pietro Navarra et al (eds), Rules and Reason: Perspectives on Constitutional Political Economy, Cambridge: Cambridge University Press, 2001. See for example Ackerman’s ‘Popular Sovereignty Initiative’, in which the President and the Supreme Court are presented as speaking in the people’s name. Bruce Ackerman, We the People: Transformations, Cambridge, MA: Harvard University Press, 1998, pp 414–416. The term ‘populism’ is nowadays used in a derogatory way: populist regimes are basically dictatorships covered by a thick layer of democratic rhetoric, a populist regime is what occurs when a democratic process goes wrong (that is, when citizens opt for a government or system of government repudiated by whoever is calling it populist). Needless to say, I do not use the term ‘populism’ in this way, but as a way of describing a regime based on democratic self-rule. For an account of the historical uses of the word ‘populism’, see Ernesto Laclau, Populist Reason, Verso, 2005. For a discussion of populism and proceduralism see Frank Michelman, ‘Constitutional Authorship’, in Larry Alexander (ed), Constitutionalism: Philosophical Foundations, Cambridge: Cambridge University Press, 1998. See for example Roberto Unger, The Self Awakened: Pragmatism Unbound, Cambridge, MA: Harvard University Press, 2007. For an excellent hypothetical dialogue between a ‘proceduralist’ and a ‘substantivist’, see Robert Dahl, Democracy and its Critics, p 135. See also the discussion

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28 29 30 31 32 33 34 35 36 37 38 39

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in Thomas Christiano, ‘The Authority of Democracy’, The Journal of Political Philosophy, 2004, vol 12, 266. For a general discussion, see Amy Gutmann and Dennis Thompson, Democracy and Disagreement, Cambridge, MA: Belknap Press of Harvard University Press, 1996, pp 26–27. Ibid., p 34. Jeremy Waldron, ‘Can There Be a Democratic Jurisprudence?’, Emory Law Journal, 2009, vol 58, 688. Jeremy Waldron, Law and Disagreement, Oxford: Oxford University Press 1999, p 213. Ibid., p 232 Ibid., p 213. Ibid., p 251. Ibid., p 232. Ibid., p 244. Jeremy Waldron, ‘The Core of the Case Against Judicial Review’, Yale Law Journal, 2006, vol 115, 1375. Waldron, Law and Disagreement, p 7. For Waldron, a democratic institution is an institution that is representative, accountable to the electorate and embodies the ‘spirit of self-government’. According to this vision, an elected legislature deserves to be characterised as a ‘democratic institution’ and its decisions naturally enjoy democratic legitimacy. As I will argue later, although this might be true with regard to democratic governance, it becomes problematic in the context of democracy at the level of the fundamental laws. Waldron, Law and Disagreement, p 293. Waldron sometimes seems to suggest that (even in the face of disagreement) there are right answers to questions of political morality. I do not share this view and I do not think there is a “set of eternal values or objective truths to which a democratic society must conform or by which it can be disciplined”. Allan C. Hutchinson, The Province of Jurisprudence Democratized, Oxford: Oxford University Press, 2009, p 81. Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution, Cambridge, MA: Harvard University Press, 1996. See also Ronald Dworkin, ‘Equality, Democracy, and the Constitution: We the People in Court’, Alberta Law Review, 1990, vol 28, p 329. Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate, Princeton: Princeton University Press, 2006. Ibid., p 143. For example, people who hold office have much more power over political decisions than people who do not. Ibid., p 131. Ibid., p 134. Frank I. Michelman, Brennan and Democracy, Princeton: Princeton University Press, 1999, pp 16–18. Ibid. Dworkin, Is Democracy Possible Here?, p 144. Ibid., p 145. Ibid., p 144. Ibid. Ibid., p 127 (emphasis added). Perhaps the most famous example of this ‘model’ of constitution-making is the case of Japan, whose supreme law was written by American experts and translated to Japanese during the post-war occupation. Kioko Inoue,

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The second dimension of democracy MacArthur’s Japanese Constitution: A Linguistic and Cultural Study of its Making, Chicago: University of Chicago Press, 1991. Jonathan Wolff, ‘John Rawls: Liberal Democracy Restated’, in April Carter and Geoffrey Stokes (eds), Liberal Democracy and its Critics: Perspectives in Contemporary Political Thought, Cambridge: Polity Press, 1998, p 125. Emphasis added. See for example Waldron, Law and Disagreement, pp 235, 252, 264, 265, 281, 293, 301 and 303. For a critique of Waldron’s attack on judicial review based on an examination of the concept of representation, see Dimitrios Kyritsis, ‘Representation and Waldron’s Objection to Judicial Review’, Oxford Journal of Legal Studies, 2006, vol 26, p 733. For Waldron’s defence of representative over direct democracy in the specific context of legislation, see Jeremy Waldron, ‘Representative Lawmaking’, Boston University Law Review, 2009, vol 89, pp 345–346. Waldron, Law and Disagreement, p 244. See Colón-Ríos, ‘The Counter-Majoritarian Difficulty and the Road Not Taken’. In fact, at one point during Law and Disagreement, Waldron briefly considers the question of “constitutional design” and maintains that even a theorist hostile to democracy, like Thomas Hobbes, argued that “the choice of constitution. . .was one that could only be made by the people”. Waldron, Law and Disagreement, pp 295–296. For an attempt at making the realisation of the second dimension of democracy consistent with a system of parliamentary sovereignty and an unwritten constitution, see Joel I. Colón-Ríos, ‘New Zealand’s Constitutional Crisis’, New Zealand Universities Law Review, 2011, vol 24, 448. Walter Murphy, ‘Constitutions, Constitutionalism, and Democracy’, in Douglas Greenberg and Stanley N. Katz et al (eds), Constitutionalism and Democracy: Transitions in the Contemporary World, Oxford: Oxford University Press, 1993, p 15. A.V. Dicey, Introduction to the Study of the Law and the Constitution, London: Macmillan, 1959, pp 36–37. A.V. Dicey, ‘The Referendum’, National Review, 1894, vol 23, p 65. Alexis de Tocqueville, Democracy in America, New York: New American Library, 1956, p 74. See for example R.A. Edwards, ‘Bonham’s Case: The Ghost that Runs the Constitutional Machine’, Denning Law Journal, 1996, vol 11, p 74. Hence Rousseau’s famous statement that “[t]he people of England regards itself as free; but it is grossly mistaken; it is free only during the election of members of parliament”. Jean-Jacques Rousseau, The Social Contract and the Discourses, London, Campbell Publishers, 1993, p 263. Whether a ‘sovereign’ parliament can be legally bound by a referendum result is a different question, which does not need to occupy us at this point. According to Section 8 of the Parliamentary Voting System and Constituencies Act 2011 (c. 1), the results of the 2011 referendum (in which voters rejected a change to an AV electoral system) were binding on the executive. There have been several non-national referendums in the context of devolution, and some authors argue that there is a trend in favour of the use of the referendum in the UK. See for example Vernon Bogdanor, The New British Constitution, Oxford: Hart Publishing, 2009. For a discussion of the use of the referendum in New Zealand, see John Parkinson, ‘Decision-Making by Referendum’, in Raymond Miller (ed), New Zealand Government and Politics, Auckland: Oxford University Press, 2010. New Zealand Citizen Initiated Referenda Act 1993. The Act establishes that “the results of which referenda will indicate the views held by the people of New Zealand on specific questions but will not be binding on the New Zealand

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57 58 59 60 61

62 63 64

65 66 67 68

69 70 71 72 73 74 75 76 77 78 79 80 81

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Government”. For a critique of the Act, see Caroline Morris, ‘Improving our Democracy or a Fraud on the Community? A Closer Look at New Zealand’s Citizens Initiated Referenda Act 1993’, Statute Law Review, 2004, vol 25, p 116. The exception being constitutions with unamendable or eternity clauses (discussed in Chapter 7). Sheldon Wolin, Politics and Vision, Princeton: Princeton University Press, 2004, p 602. Sheldon Wolin, ‘Fugitive Democracy’, in Seyla Benhabib (ed), Democracy and Difference: Contesting the Boundaries of the Political, Princeton: Princeton University Press, 1996, p 34. Ibid. Sheldon Wolin, ‘Norm and Form: The Constitutionalizing of Democracy’, in Peter Euben, John R. Wallach and Josiah Ober (eds), Athenian Political Thought and the Reconstruction of American Democracy, Ithaca: Cornell University Press, 1994, p 49. Sheldon Wolin, ‘Transgression, Equality, and Voice’, in Josiah Ober and Charles Hedrick (eds), Demokratia: A Conversation on Democracies, Ancient and Modern, Princeton: Princeton University Press, 1996, p 63. For example, public opinion and electoral majorities can be easily manufactured by money and the media. Wolin, Politics and Vision, p 602. Regarding this point, a contemporary critic of democracy has stated that the “surge of participatory democracy and egalitarianism [in the 1960s and 1970s] gravely weakened, where it did not demolish, the likelihood that anyone in any institution could give an order to someone and have it promptly obeyed”. Samuel Huntington, American Politics: The Promise of Disharmony, Cambridge, MA: Harvard University Press 1981, p 219. Wolin, ‘Norm and Form’, p 37. Ibid., p 39. Ibid., p 55. Wolin, ‘Fugitive Democracy’, p 31. Wolin’s concept of the political has been the object of many critiques, mainly because of its obscurity. For the purposes of my discussion, however, this definition of the political (provided by Wolin in his ‘Fugitive Democracy’) is sufficient. For a discussion of this concept see James Wiley, ‘Wolin on Theory and the Political’, Polity, 2006, vol. 38, 211 and Stephen Holmes, ‘The Permanent Structure of Antiliberal Thought’, in Nancy Rosenblum (ed), Liberalism and the Moral Life, Cambridge, MA: Harvard University Press, 1989. Wolin, ‘Fugitive Democracy’, p 31. Ibid. See for example Robert A. Dahl, A Preface to Democratic Theory, Chicago: The University of Chicago Press, 1970. Wolin, ‘Fugitive Democracy’, p 42. See also Sheldon Wolin, Tocqueville Between Two Worlds: The Making of a Political and Theoretical Life, Princeton: Princeton University Press, 2001. Wolin, ‘Fugitive Democracy’, p 43. Wolin, ‘Transgression, Equality, and Voice’, p 63. Sheldon Wolin, ‘The Liberal/Democratic Divide: On Rawls’s Political Liberalism’, 24 Political Theory 101 (1996). Wolin, ‘Norm and Form’, p 58. Wolin, Politics and Vision, p 603. Ibid., pp 603–604. Ibid., p 603. Ibid. Ibid.

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82 Wolin, ‘Norm and Form’, pp 39–40. 83 Regarding the idea of ‘democratic constitutionalism’, see also James Tully, ‘The Imperialism of Modern Constitutional Theory’, in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form, Oxford: Oxford University Press, 2007. 84 James D. Ingram, ‘The Politics of Claude Lefort’s Political: Between Liberalism and Radical Democracy’, Thesis Eleven, 2006, vol 87, p 40. 85 See Miguel Abensour, ‘ “Savage Democracy” and “Principle of Anarchy” ’, Philosophy and Social Criticism, 2002, vol 28, p 708. The theory of constituent power will be discussed in Chapter 5.

4

Democracy’s principles

In the previous chapter I argued that the second dimension of democracy is primarily concerned with the following questions: (1) Is this constitution the result of a democratic process? (2) Can this constitution be altered through democratic means? This chapter will consider the question of what kind of political practices amount to a democratic process, to an act of democratic re-constitution, by defending a particular conception of democracy.1 This conception rests on two basic principles: democratic openness and popular participation. Briefly put, these principles mandate that all laws, including the fundamental laws, are always susceptible to reformulation and replacement, and that changes take place through participatory procedures. Popular participation and democratic openness, although relevant in the context of democratic governance, acquire a much more important dimension in the context of the second dimension of democracy. The reason is as follows: the second dimension of democracy, due to its episodical character, makes the realisation of the basic principles of democracy both possible and desirable. A regime consistent with the idea of democracy at the level of the fundamental laws would thus be characterised by mechanisms that facilitate highly participatory constitutional transformations. This chapter will flesh out the content of what I have identified as the basic principles of democracy and explore the ways in which they are negated in constitutional theory and practice.

The principle of democratic openness Constitutionalism’s aspiration to permanence, as well as the political practices it produces is, at the very least, at odds with democracy and, in the worst case, incompatible with it. In fact, if my depiction (in Chapter 2) of constitutionalism and of its accompanying ideology is accurate, democrats stand for all that constitutionalists fear. It is true that democracy is one of the most contested terms of our political culture, and that it is far from clear what democracy requires in the context of large and complex societies. There are some basic principles, however, that are inherent to the principle of ‘the rule by the people’ (democracy’s specific and literal meaning).2 Once one begins to depart from these principles, democracy quickly becomes something else. The

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first of these principles is that a democratic society should be an open society; that is, one in which even the fundamental laws are not only open for discussion, but always susceptible to being reformulated or replaced. Democratic openness welcomes conflict and dissent, and it is incompatible with unchangeable – or virtually unchangeable – constitutional provisions. To paraphrase Cornelius Castoriadis, a democratic society is “not a society that has adopted just laws, once and for all, rather is a society where the question of justice remains constantly open”.3 Democracy put slightly differently, is about a citizenry that is allowed to have any constitution it wants. As Sheldon Wolin has put it, “democracy should not depend on elites making a one-time gift to the demos of a predesigned framework of equal rights”.4 The conception of an open society is directly related to the idea of the ‘rule by the people’ in one fundamental sense. To say that the people rule themselves is to say that they are a ‘selfgoverning’ people: a group of human beings that come together as political equals and give themselves the laws that will regulate their conduct and the institutions under which they will live. This involves two important and related points. First, for these rules to be the people’s own, it must be today’s people who rule, not past generations, however wise or well-intentioned their act of constitution-making was, or whatever the content of the provisions they adopted. In that sense, Stephen Holmes’ pre-commitment (discussed in Chapter 2 and perfectly attuned to the logic of constitutionalism) cannot be brought to a final reconciliation with democracy because a self-governing people must be able to reformulate their commitments democratically. Second, for there to be democratic self-rule, no rule can be taken for granted or removed from critique and revision.5 Democracy, as Claude Lefort has argued, allows “no law that can be fixed, whose articles cannot be contested, whose foundations are not susceptible of being called into question”.6 The idea of placing stringent requirements for constitutional amendments, or of placing part of the constitutional text outside the scope of democratic politics, is clearly at odds with the principle of democratic openness. The principle of democratic openness, particularly in the context of constitutional change, is highly compatible with majority rule. Any supermajority requirement would express an undemocratic bias in favour of a constitutional status quo, the potential closure of a constitution in whose creation citizens might not even have participated (e.g., because they were not allowed to do so or because they were ‘born’ into an already existing constitution). This openness, of course, is always an ‘imperfect’ openness, because for there to be critique and revision, the institutions and rights that make such activities possible must be respected (whatever the form these institutions and rights may take). These limits to democratic openness, however, are the limits of democracy itself. Consider the case of a people deciding to abolish a constitution that provides for institutions facilitating democratic self-rule and, instead, empowering a sovereign dictator. In this kind of situation, one must distinguish between the procedure by which a decision is taken (e.g., a democratic procedure) and its

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outcome or, as Jeremy Waldron has put it, between democratic means and democratic ends.7 Thus, if a people chooses to establish a dictatorial regime according to which a single individual is granted full legislative and constitution-making power, it does not follow that this regime would be democratic – even if it was democratically created.8 These people would not simply have supplanted one set of institutions for another. Such a regime would be in violation of the very idea of democracy: it would preclude the possibility of ‘rule by the people’ (in other words, it would be inconsistent with the first and second dimensions of democracy).9 To say that in a democracy everything is open for replacement, then, is to recognise that democracy always involves the risk of replacing itself. As expressed by Castoriadis: “In a democracy people can do anything – and must know that they ought not to do just anything. Democracy is the regime of self-limitation; therefore, it is also the regime of historical risk – another way of saying that it is the regime of freedom – and a tragic regime”.10 Democracy, there should be no doubt about it, is always a risk, but a risk that a democrat – to remain a democrat – has no choice but to accept. One might argue that it is precisely because of the risks associated with democratic openness that there exist constitutions, fundamental and supreme laws, and that the ideal of the ‘rule of law’ as opposed to the ‘rule of men’, is cherished. In other words, this is why constitutions must be difficult to change, and the reason for only altering them “reluctantly and as the last resort”.11 Having a written and entrenched constitution should then be seen as a way of providing some security against different types of democratic excesses, including the very abolition of democracy. But that answer greatly overestimates written and entrenched constitutions, as many public lawyers operating under an unwritten constitution and a system of parliamentary sovereignty would quickly point out: such systems have generally been successful in maintaining a democratic form of government in place. Moreover, once a political movement is sufficiently strong to violently (and undemocratically) replace a constitutional regime, legal principles (national or international) are not difficult to surpass. In that sense, if there are some forms of oppression that we consider unthinkable in contemporary liberal societies, it is not because there are laws or constitutions against such practices, but because it would be hard to imagine any group or individual with a political force capable of imposing them. Castoriadis is again on point: “If we can be reasonably certain that the re-establishment of slavery tomorrow in the United States or in a European country is extremely improbable,” he writes, “the ‘reasonable’ character of our forecast is based not on the existing laws or constitutions (for then we would be simply idiotic) but on a judgment concerning the active response of a huge majority of the people to such an attempt.”12 Under this view, the enjoyment of the rights and institutions that are usually associated with democracy are less the consequence of the entrenchment of the relevant legal and constitutional protections than a result of what may be identified as a “political culture of mutual respect”.13 Every constitutional regime unaccompanied by a

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democratic culture, no matter how liberal its constitution and how stringent its procedures for constitutional change are, is always at risk. The twentieth century is full of examples.14 A constitutional regime consistent with the principle of democratic openness and accompanied by a culture of political equality is also at risk (as there are no institutional or social arrangements that can guarantee that grave abuses and injustices will not be committed),15 but at a lesser risk than a constitution whose only chance to survive depends of putting democratic politics in an institutional straitjacket. This does not mean, however, that democratic openness recommends the establishment of a sovereign parliament which is free to make any legal or constitutional changes it deems appropriate. From the perspective of democratic openness, parliamentary sovereignty might be the best institutional arrangement in the context of day-to-day governance, but it is highly problematic in the context of democracy at the level of the fundamental laws (which means that the traditional doctrine of parliamentary sovereignty cannot be made entirely consistent with the principle of democratic openness). Such an arrangement might be consistent with ‘openness’ but not necessarily with a democratic form of openness. As we will see below, democracy requires that those subject to a constitutional regime are also its authors, in the sense of being allowed to deliberate and decide on its content through the most participatory procedures possible (which, as we will see later chapters, will vary according to the particular context and type of change).16 In that respect, even if one considers that democratic openness is realised by a system of parliamentary sovereignty in the context of the first dimension of democracy, this very principle does not allow one to conclude that parliament should be able to engage in the activity of constitution-(re)making, even if subject to special procedural hurdles. Episodes of important constitutional change make possible a fuller realisation of the principle of democratic openness, for they allow ordinary citizens to engage in more direct ways in the activity of constitutional reform.

The principle of popular participation That democracy requires popular participation in the positing of the law is almost axiomatic. Democratic self-government not only entails a “community of citizens – the demos – [that] proclaims that it is absolutely sovereign” (i.e., the principle of democratic openness); it also involves an affirmation of the “equal sharing of activity and power” of all citizens.17 As with the principle of democratic openness, popular participation is highly compatible with majority rule (as the only decision-making rule that gives every vote an equal weight). In other words, popular participation demands that participants in a decisionmaking process use a voting rule according to which their “ ‘yes’ and ‘no’ count equally”.18 Now, if democracy is about people ruling themselves as equals, about a group of human beings self-determining the conditions of their political

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association, the idea that they should be allowed to participate, in some way, in the creation of the rules to which they will become subject is uncontroversial, at least for the democrat. As Waldron has expressed, democracy requires “participation by the people – somehow, through some mechanism – on basically equal terms”.19 What remains controversial is how much participation, and by what means, is necessary for one to conclude that the principle of popular participation is being taken seriously. In order to answer that question, and instead of proceeding through an examination of different conceptions of democracy and their approaches to the question of participation,20 I propose to begin by considering the meaning of the principle of popular participation in the context of an ideal democracy; that is, a democracy free from the practical problems present in contemporary societies (e.g., problems of scale, lack of public interest, etc.) that contemporary conceptions of democracy try to accommodate. In such an ideal democracy (the favourite example of democratic theorists is, of course, the fifth-century Athenian Assembly), all citizens are allowed to participate directly in the activity of law-making. In other words, in an ideal democracy, the principle of popular participation equals direct (assembly) democracy: a democracy in which all citizens come together, deliberate and decide on the content of the law. Needless to say, not everyone has always been fond of such an ideal. For eighteenth-century critics of democracy (for which democracy almost invariably meant ‘direct democracy’),21 this conception was necessarily problematic: it presupposed that the lower classes of society would be granted political power, which was considered by itself a very good reason for discomfort. For example, Alexander Hamilton, who defended a distinction between the ‘will of the people’ and ‘the will of the legislature’ in order to defend judicial review of legislation, did not think very highly of popular assemblies. “Are not popular assemblies,” he asked, “frequently subject to the impulses of rage, resentment, jealously, avarice, and of other irregular and violent propensities?”22 Most contemporary democrats, however, explicitly or implicitly assume that a ‘direct assembly democracy’, in which the entire citizenry is allowed to decide and deliberate about the content of all laws, is the ideal, yet unrealisable, form of democracy. For instance, Joshua Cohen and Charles Sabel have recently attempted to find a “direct and deliberative alternative to assembly democracy”23 that is workable in a contemporary society. In a similar vein, John Burnheim identifies the “main practical problem about democracy” by the fact that “in any full-blooded sense ‘government of the people, by the people, for the people’ seems impossible in any but the narrowest range of circumstances”.24 Burnheim, Cohen and Sabel, of course, are highly critical of traditional forms of representative democracy. Nevertheless, even theorists who see representative democracy as a desirable form of democratic organisation (as opposed to a defective substitute for real democracy) criticise ‘direct assembly democracy’ for its failure to live up to the principle of popular participation. Nadia Urbinati, for example, defends representation as “both necessary and

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desirable” for participation and, in suggesting that direct democracy is not the best form of democracy, she stresses that “the direct presence of all citizens did not prevent the Athenian ekklesia from being an assembly in which the large majority abstained from fully active participation”.25 That is to say, the majority of the citizens present in the assembly limited themselves to listening to particular orators and voting on their proposals instead of speaking and engaging in real deliberative practices. As Urbinati’s criticism of Athenian democracy suggests, in an ideal democracy citizens not only reject or accept particular proposals through a ‘yes’ or ‘no’ vote. The ideal democracy is also deliberative: it requires an assembly composed of all those to whom the laws will apply, and in which participants not only decide on the laws that will be passed (as in a referendum) but also deliberate on their content (as in a properly functioning, deliberative assembly). An ideal democracy brings together what Cohen and Archon Fung have identified as two different strands of democratic thought.26 The first one, which they associate with Jean Jacques Rousseau, mandates broad citizen participation in political decision-making. The second one, associated with Jürgen Habermas, argues in favour of an increase in deliberation: citizens should address common problems by reasoning together and exchanging arguments. Put another way, the ideal democracy, a direct democracy, is the full realisation of what Cohen and Fung identify as radical democracy.27 Now, the unfortunate result of the complexities and size of contemporary societies has been that direct democracy has become equivalent to the referendum. As a mechanism of popular participation, however, referendums leave much to be desired. In particular, they do not meet one of the defining features of radical democracy: referendums only allow citizens to decide on the content of a particular proposal through a ‘yes’ or ‘no’ vote, but do not necessarily involve the level of deliberation present in an assembly. This does not mean that referendums are incompatible with the principle of popular participation, but that they must be surrounded by other – formal or informal28 – modes of deliberation in order to truly contribute to a democratic process. As Margaret Canovan has argued, the value of a referendum (whether initiated by citizens or by government) “is due not so much to the referendum procedure as to the popular mobilization that has taken form around it”.29 Even if the problem of the lack of deliberation was not present (as well as other issues such as the problems of low turnouts, the undue influence of media campaigns and varying degrees of intensity in the preferences of different groups),30 making the adoption of every law dependent on a special election seems like a highly unattractive (and costly) form of government.31 Not surprisingly, scholars committed to democracy have attempted to develop new ways of increasing citizen involvement in the context of daily governance that address the difficulties presented by referendums.32 We have thus lately seen an increase of proposals such as citizen juries and deliberative polls, in which randomly selected citizens deliberate and issue proposals on particular policy issues.33 To the extent that these mechanisms do not usually give

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participants real decision-making power but merely serve as a means to ‘discover’ what the entire citizenry would decide after a proper deliberative exercise, they are best understood as democratic simulations.34 Nevertheless, what unites these types of proposals is an attempt to create a mini ‘direct assembly democracy’, to produce a situation that mimics what citizens would do if they were able to come together to participate in and deliberate on the creation of the laws. And, as suggested above, this is precisely what the principle of popular participation requires: to make public decisionmaking procedures as participatory as possible. In this respect, the principle of popular participation is neither at odds with representative democracy nor should it be taken as a recommendation for its abolishment. In fact, in the context of day-to-day governance, the principle of popular participation is entirely consistent with processes of ordinary law-making that mainly take place through traditional representative institutions, as the problem of scale would make it practically impossible to implement a system in which citizens directly decide and deliberate on the content of every single piece of legislation. Of course, in a few local government and regulatory contexts, in which the problem of scale is significantly ameliorated, meeting the demands of the principle of popular participation could, in fact, mean having an assembly conformed by all those affected by the relevant ordinance or regulation. Even in the context of ordinary law-making for an entire country, one could sometimes make use of a combination of citizen juries, initiatives and referendums. However, any combination of these mechanisms would only be used sporadically, perhaps in the context of particular controversial issues, as it would be impracticable to subject the validity of every law to it having been proposed by citizens through a popular initiative, considered by a citizen jury and directly ratified by the electorate. Interestingly, the episodical nature of democracy at the level of the fundamental laws presents a more welcoming environment for the use of mechanisms of popular participation. That is to say, when new constitutions are created or existing ones need to be transformed in important ways, a rare opportunity to experiment with highly participatory procedures presents itself. As will be seen in the next chapters, the fact that most constitutional regimes miss these opportunities has a negative effect on their democratic legitimacy. Although the previous paragraphs treated the limits to the realisation of the principle of popular participation as mainly a problem of scale, we know that this is not the only problem faced by any attempt of increasing popular participation in politics: citizens’ lack of interest might prove fatal to any attempt at furthering the democratic character of a polity. Although the general trend towards a decrease in voter turnout in the world’s most advanced ‘democracies’ is certainly disturbing, I agree with Roberto Mangabeira Unger when he says that “the level of popular participation in politics is not an elusive and unyielding cultural fate, summarily reflecting the history of a people”.35 Put differently, political apathy might not be the cause (or the only cause) for the lack of participatory mechanisms but, at least in part, the result.

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Like Unger, I remain confident that “a few relatively modest institutional changes would be likely to heighten popular engagement in democracies that now seem de-energized”.36 This is why the dominant approaches to the relationship between democracy and constitutionalism (which are decidedly inclined towards realising the latter) are deeply unsatisfactory.

Negating democratic openness The principle of democratic openness is negated in important ways by the logic of constitutionalism. This occurs both at the level of constitutional theory and at the level of constitutional practice (i.e., in the way in which the constitutions of existing democracies approach constitutional change). This section will begin by examining two general strands of constitutional thought. The first one defends interpretation as the proper means of updating the meaning and scope of constitutional protections. I associate that view with theories of ‘living-tree’ constitutionalism, which will be exemplified through an examination of Wil Waluchow’s common law theory of judicial review.37 This approach is important since, unlike the traditional constitutionalist aspiration to permanence, it insists that constitutions should not be seen as frozen documents, but as susceptible to growth. According to some accounts, social movements have an important role to play in the development of a living-tree constitution. After considering this approach’s inconsistency with the principle of democratic openness, I will examine the ways in which this basic democratic principle is negated by the typical amendment rules of the constitutions of countries that are, by and large, considered to be well-functioning constitutional democracies. Waluchow’s defence of living-tree constitutionalism, at first sight, might be taken as an attempt to find a place for the principle of democratic openness in a world dominated by the traditional constitutionalist predisposition in favour of the established constitutional regime. In fact, Waluchow argues that entrenched bills of rights (enforced by judges) should not be seen as providing a fixed point of agreement on the extent of governmental powers, or as a precommitment about certain limits to majoritarian decision-making.38 Why should today’s people be restricted by past generations, he asks, “especially given the bias against change which constitutional amendment formulae typically, perhaps even essentially, builds right into constitutions?”39 To avoid this apparent problem, Waluchow invites us to see bills of rights as living trees, capable of growth and of adjusting to our ever-changing understandings about rights. Far from being fixed points of agreement only alterable through formal amendment, they represent “a concession to our inability to understand fully the nature of fundamental rights and how these might be infringed by government action”.40 Under this conception, judicial review of legislation would involve the identification of a community’s current and authentic constitutional morality, as opposed to the constitutional morality of previous generations or to the opinions defended by day-to-day majorities.

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Notice, first, that the updating that Waluchow has in mind is mainly made by judicial interpretation, rather than by a democratic procedure. It is judges who are called to make the living constitution grow, not popular majorities. The problem, then, is that Waluchow’s ‘rule of the living’ privileges only a part of the living: judges and those directly involved in constitutional interpretation. In that sense, even if it were consistent with the idea of openness (which, as we will see below, is not the case), the democratic character of that openness is weak at best. The living-tree conception, for all its sophistication and appeal, is plagued by important undemocratic features as it is driven by unelected judges, rather than by ordinary citizens. Perhaps acknowledging this problem, some scholars sympathetic to the living-tree conception have attempted to bring popular engagement and constitutional interpretation together. For instance, Robert Post and Reva Siegel advance a conception of constitutionalism according to which constitutional doctrine is responsive to popular movements and to the views of elected officials.41 They thus maintain that “constitutional meaning bends to the insistence of popular beliefs”.42 This responsiveness to popular beliefs, however, also falls short of giving citizens an actual role in proposing and deciding on the content of their constitution: citizens might be able to influence constitutional interpretation, but lack the faculty of making that influence decisive. Living constitutionalism, even in its more progressive versions, is not about popular participation in constitutional change. Second, and this goes to the heart of the idea of openness, notice that by focusing on interpretation, the living-tree conception of constitutionalism can only achieve a very limited form of openness. That is to say, to the extent that there are certain types of changes that are simply outside the scope of constitutional interpretation (such as creating a new constitution or making important alterations to the structure of government), giving judges the power to expand the constitution – of making constitutional principles grow – falls short of realising the principle of democratic openness. After all, the most famous judicial formulation of the living-tree conception, contained in the Privy Council’s decision in the case of Edwards v A.G. of Canada,43 clearly recognised the limits of this doctrine: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.”44 This is why Dworkin, who favours a theory of interpretation similar to that of Waluchow, maintains that: “Even a judge who believed that abstract justice requires economic equality cannot interpret the equal protection clause as making equality of wealth, or collective ownership of productive resources, a constitutional requirement, because that interpretation simply does not fit American history or practice, or the rest of the Constitution.”45 Since constitutional interpretation will not take us very far in terms of making a regime consistent with the principle of democratic openness, perhaps we should instead look at the terrain of constitutional amendments. Regardless of the theory of judicial interpretation adopted by judges (and regardless of the existence of the institution of judicial review of legislation),

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the existence of a democratic amendment process may open the constitution to important constitutional transformations and thus meet the demands of this basic democratic principle. Unfortunately, this is not the case in actual constitutional practice: most amendment rules embody, in important ways, the constitutionalist aspiration to permanence.46 Take, for example the US Constitution, generally recognised as a very rigid fundamental law.47 According to its amendment rule (Article V), two-thirds of both Houses of Congress may propose amendments to the constitution, or two-thirds of the state legislatures may apply for a Convention for proposing amendments. The proposed amendments must then be ratified by three-fourths of state legislatures, or by three-fourths of special state conventions.48 With such formidable hurdles, it is not surprising that the US Constitution has been amended only 27 times in over two centuries, and it is telling that the ratification of the Twenty-seventh Amendment took 200 years (it was ratified in 1992, after being originally presented by James Madison in 1789).49 The small number of amendments, of course, might simply be a reflection of a constitution whose content is almost unanimously endorsed, but this is not the case: since 1789 more than 10,000 amendments have been proposed in Congress.50 From the perspective of democratic openness there seems to be two basic problems: the role of supermajorities and the ambiguities surrounding the text of Article V. This amendment rule provides a minority of one-third of each House of Congress (and a minority of one-fourth of the states) with a veto power over any amendment proposal. By itself, this goes a long way in realising constitutionalism’s Lycurgian tendencies. Now, as noted above, the initiative to propose constitutional changes is not only placed in Congress, but also in a Convention (which would arguably have an unlimited power to propose amendments).51 However, even leaving aside the difficulties involved in calling a Convention (created in part by the supermajority rules in the initiative and ratification processes and the possibility that Congress might refuse to call it or to send its proposals for ratification),52 there are certain ambiguities in the text of Article V that make its democratic credentials questionable. For example, would the members of the Convention be democratically elected? If they are elected, would they be elected by the people at large or according to the principle of state equality (e.g., one delegate for each state regardless of the size of the state’s population)? Would the Convention have the power to adopt its own internal rules? Does the Convention or Congress have the power to create an alternative ratification procedure (such as a binding national referendum)? Could Congress transform itself into a Convention?53 Granted, some of the problems identified above are a result of the federal character of the United States. But the amendment rules of most national constitutions are not that different. To begin with, there is the obvious point that most constitutions contain amendment rules designed to make constitutional changes less easy to achieve than the adoption of ordinary laws, and this is usually done through a supermajority requirement. A good example is provided by Article 79(2) of the

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German Basic Law (1949), which expresses that amendments must be approved by “two-thirds of the Members of the Bundestag and two-thirds of the votes of the Bundesrat”. As we will see in later chapters, a supermajority requirement directed at an ordinary legislative assembly seeking to alter the constitutional text is by itself not a problem – as long as there is also an alternative, popularly initiated and participatory constitutional amendment process, which is not the case in the overwhelming majority of constitutional regimes. Nevertheless, many constitutions go beyond mere supermajority requirements and make constitutional change even more difficult. Consider, for example, the amendment rule of the Constitution of Spain (1978). According to Article 168, a ‘total revision’ of the constitution (or a partial revision that affects basic constitutional principles or fundamental rights) requires the affirmative vote of two-thirds of each house and the immediate dissolution of parliament and the calling of general elections. The new parliament must then approve, again by a two-thirds majority, the proposed changes (which are then submitted to the electorate in a referendum). This type of amendment rule comes very close to making constitutional change impossible, but falls short of the ultimate expression of constitutionalism’s Lycurgian tendencies: eternity clauses. The most famous eternity clause is contained in the previously mentioned Article 79 of the German Basic Law, which places certain provisions out of the scope of the amending power: “Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 [which among other things, protect fundamental rights, the democratic character of the state, and the right of resistance] shall be inadmissible.” Eternity clauses are, in fact, very common and can be also found in the constitutions of Greece (Article 110), Italy (Article 139) and Norway (Article 112). Other countries, such as India and Colombia, whose constitutions lack eternity clauses, have nevertheless declared (by judicial pronouncement) that there are ‘substantive’ limits to the power of constitutional reform; that is, the basic structure of the constitution or its fundamental principles cannot be altered through the ordinary amendment procedure. All the countries mentioned in this section are usually characterised as democracies, yet their constitutions seem to negate the principle of democratic openness in important ways. Instead of allowing citizens to come together as equals and reformulate or replace any constitutional norm, they either give different sets of minorities a right to veto any reform proposal or place certain provisions outside the power of constitutional reform. Those countries might in fact enjoy high degrees of democratic governance, but exhibit significant deficits of democracy at the level of the fundamental laws. As noted above and as will be argued in Chapters 7 and 8, this does not mean that supermajority requirements, eternity clauses and even the judicial doctrine of unconstitutional constitutional amendments are incompatible with democratic openness if they also contemplate the use of other, open and participatory procedures of constitutional change. Now, not all constitutions

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are like these, and in fact, even if uncommon, in some countries constitutional amendments are not necessarily subject to supermajority requirements. For example, according to Article 89 of the Constitution of France (1958), an amendment may be approved by the majority of both houses plus a majority of the electors in a referendum. And, of course, in countries with unwritten constitutions like the United Kingdom and New Zealand,54 any statute of constitutional significance may be altered as if it was an ordinary law. One might argue that those written and unwritten constitutions are (to a certain extent)55 consistent with the principle of democratic openness, but as we will see below, they fail to meet the demands of the principle of popular participation.

Negating popular participation As with the principle of democratic openness, my objective in this section is to show that the principle of popular participation is not given the attention it deserves by contemporary constitutional theory and practice. It is useful to begin this discussion by briefly looking at the ways in which some influential strands of democratic theory have dealt with the question of popular participation and how they are reflected in actual political systems. An almost obligatory point of departure here is the work of Joseph Schumpeter, whose Capitalism, Socialism and Democracy influenced a wave of works in democratic theory that appeared after the Second World War.56 Schumpeter meant to offer a non-normative account of democracy, a description of how democracy worked in the real world. With very good reasons, some authors have identified in Schumpeter and his followers an ideology “grounded upon a profound distrust of the majority of ordinary men and women”57 and a lack of enthusiasm for democracy. But regardless of the merits or demerits of Schumpeter’s approach, his conception exemplifies what democracy is now thought to require from peoples and their governments. Schumpeter described democracy as a certain type of institutional arrangement designed to arrive at political decisions.58 Democracy was to be understood as a method and disassociated from any particular ends, such as the achievement of justice or the improvement of people’s lives.59 According to Schumpeter, the institutional arrangement that we call democracy had to be defined in a realistic way; the definition had to be true to what “sponsors of the democratic method really mean by this term”.60 Thus, his conception rejected the premise of what he called the ‘classical doctrine’ (identified with authors such as Rousseau), which Schumpeter thought attributed to the people a participatory and decision-making role that rested on empirically unrealistic foundations. Schumpeter advanced the following definition of the democracy: “That institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote.”61 In Schumpeter’s theory, the people’s only role in a democracy is that of voting occasionally for candidates in competitive

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elections, not to decide policies: citizens have to understand that “once they have elected an individual, a political action is his business and not theirs”.62 The main problem with Schumpeter’s definition of the ‘democratic method’ and its inconsistencies with the principle of popular participation is not that it might encounter theoretical difficulties or that it might offend democratic sensibilities. What is worrying is that he comes very close to describing the kind of system that is routinely called democratic in our times. Samuel Huntington expressed this very well in his triumphal claim that by the 1970s, “the debate was over and Schumpeter had won”.63 For instance, consider the following statement by Joseph Nye, a leading liberal political thinker: “Democracy is government by officials who are accountable and removable by the majority of people in a jurisdiction.”64 This radical separation between the rulers and ruled is far removed from what democracy meant just a few centuries ago. In that respect, it would be no exaggeration to say that democracy has become a form of government that most eighteenth-century antidemocrats would be willing to support and champion, and in which the participation of citizens is limited to voting every few years in regular elections and perhaps giving their opinions to pollsters. Robert Dahl’s theory of polyarchy, briefly mentioned in the previous chapter, can in that sense be understood as a recognition of the failure of contemporary states to meet the demands of democracy. A polyarchy exists in a country whose institutions satisfy the minimal requirements of the democratic process. These institutions require: (1) that elected officials have control over governmental decisions about policy; (2) that they are elected in relatively frequent, fair and free elections; (3) that the right to vote is extended to all adults; (4) that most adults have the right to run for public office; (5) the protection of the freedom of expression; (6) that the citizens have access to alternative sources of information that are not monopolised by the government or any single group; and (7) that they have the right to form autonomous associations, such as political parties, which attempt to influence the government by competing in elections and by other peaceful means.65 As Dahl acknowledges, the idea of democracy has become almost universal today, and it is the standard that almost all contemporary regimes claim to uphold and considered to be the basic criterion of legitimacy for any political system.66 But as his theory of polyarchy suggests, what is taken for democracy is the regular election of representatives and the protection of fundamental rights. Naturally, not all democratic theorists agree with the desirability of the ‘already existing democracy’ described by authors such as Schumpeter and Dahl, and a number of ‘participatory democrats’ have provided alternative conceptions that combine institutions of direct and representative democracy in order to give citizens a more meaningful role in political decision-making. For example, C.B. Macpherson proposed a combination of a “pyramidal system with direct democracy at the base [e.g., neighbourhoods] and delegated democracy at every level above that (e.g., cities)”,67 and the existence of political parties which would ideally also operate according to the pyramidal

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system. Other participatory democrats, such as Carole Pateman and Benjamin Barber, also emphasise the importance of popular participation at different levels of society, such as the workplace and local communities.68 More recently, authors such as Fung, Sabel and Cohen, mentioned earlier, have also developed in various ways the connections between participation, deliberation and democracy.69 The work of these authors, of course, has not been successful in redefining what are generally seen as the demands imposed by the democratic ideal on a political regime: the dominant view of democracy, the one practised by states and politicians, does not require anything more than what Dahl identified as a polyarchy.70 Perhaps more importantly for my purposes in this book, most of the work of participatory democrats is directed at what I identified in the previous chapter as democratic governance (and certain forms of local democracy). That is to say, participatory democrats are not normally engaged in proposals for increasing popular participation in constitutional change. And, since contemporary constitutional theory has occupied itself with the debate about judicial review of legislation (in finding new ways of addressing the question of whether courts or legislatures should have the last word about the meaning and scope of constitutional protections), the actual participation of citizens in constitutional change is rarely considered by constitutional scholars.71 A good example is the work of Bruce Ackerman, whose theory of constitutional change is full of references to ‘the People’. Ackerman’s central claim emerges from the idea that the United States has a dualist constitution. By that, he means that the constitution seeks to distinguish between normal and constitutional politics.72 These latter periods of higher law-making are to be understood as the ‘highest kind of politics’, the moments in which ‘We the People’ speak without being restrained by pre-established constitutional forms.73 During times of normal politics, in contrast, it is only the government who speaks. Political representation must thus be seen with suspicion and the actions of the legislature should not be mistaken for the genuine voice of ‘We the People Assembled’.74 Despite his emphasis in ‘the People’ as the protagonist of important constitutional transformations, Ackerman’s take on popular participation in constitutional reform is mainly about getting the support of the people, about being able to speak in its name. Constitutional politics is a complex process involving Congress, the Executive and the Supreme Court, in which ordinary citizens play the minor role of expressing their support for change, mainly through regular elections. In other words, Ackerman’s conception of constitutional politics is not accompanied by mechanisms that would increase the participation of citizens in re-constituting the juridical system. Consider, for example, the mechanism Ackerman presents as a democratically superior alternative to Article V. According to Ackerman, constitutional change could take place through a special statute that he calls the ‘Popular Sovereignty Initiative’. “Proposed by a (second-term) President,” writes Ackerman, “this Initiative should be submitted to Congress for two-thirds approval, and should then be submitted to the voters at the next two Presidential elections. If it passes these

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tests, it should be accorded constitutional status by the Supreme Court.”75 Such a mechanism can hardly be made consistent with the principle of popular participation, as it leaves the process of constitutional change almost exclusively in the hands of the ordinary institutions of government. In this sense, Ackerman presents neither arguments nor proposals for an increase in the actual participation of citizens – understood as involving opportunities for proposing, deliberating and deciding on the content of the constitution – in constitutional remaking, unless one understands popular participation to be exhausted in the actions of a government that claims to act with the support of ‘We the People’ (as expressed in subsequent general elections). Moreover, just like the living-tree approach, Ackerman’s method of constitutional change can hardly be effective in altering what Sanford Levinson has identified as the basic structural elements of the US political system (e.g., the inability to remove a President who has lost the confidence of the electorate, the allocation of power in the US Senate and Article V itself).76 While helpfully distinguishing between the people and the legislature (and in that respect avoiding the problem previously identified in Waldron’s approach), Ackerman proceeds in a highly theoretical way, without attempting to provide ways for flesh-and-blood human beings to directly deliberate and decide about the content of their constitution. To be fair to Ackerman, one might argue that he is operating in the context of a very rigid constitution and merely attempting to find a way of showing that constitutional change may take place outside the confines of the previously discussed Article V.77 But even constitutional theorists that have unwritten (and flexible) constitutions as their main frame of reference do not pay proper attention to the participation of ordinary citizens in the activity of constitutional reform. Consider, for example, Jeffrey Goldsworthy’s defence of parliamentary sovereignty, which claims to rest on strongly democratic grounds. Goldsworthy argues that democracy requires “government by ordinary people”, and that according to the democratic ideal, “people have a right to participate on equal terms in the political decision-making that affects their lives”.78 Moreover, democracy assumes that ordinary people “possess the intelligence, knowledge and virtue needed to do so”.79 As will be obvious from this and the previous chapters, I agree with those statements. However, there are many different ways of understanding the implications of the phrase “the people’s right to participate on equal terms in the political decision-making”.80 Goldsworthy believes that an elected parliament whose decisions cannot be struck down by an unelected judiciary is the best embodiment of the form of government that such a phrase invokes. But it is very unclear why it is that we can equate a system of parliamentary sovereignty with the idea of “government by ordinary people”.81 To the extent to which the formal opportunities for ordinary citizens to participate in politics in a traditional system of parliamentary sovereignty is that of electing law-makers, one might as well say that the democratic ideal would also be realised by having political decisions made by a democratically

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elected and all-powerful monarch, or by a committee of ‘ordinary citizens’ elected for life by a popular majority. The democratic ideal, I have suggested in this chapter, cannot be fully realised in a contemporary society; the best that we can do is to find ways that approximate to it as much as possible, and that in part requires mechanisms of law-making consistent with the principles of democratic openness and popular participation. In the context of democratic governance, Goldsworthy’s defence of parliamentary sovereignty is largely consistent with these basic democratic principles. Fair enough, in some particular contexts there might be a possibility of extending the opportunities for direct popular participation – as by recognising the citizenry’s right to present legislation by popular initiative or by establishing different mechanisms for participatory decision-making at a local level – and Goldsworthy’s analysis is certainly consistent with providing additional opportunities for participation beyond the formal parliamentary process. The problem is that the emphasis on parliamentary sovereignty moves our attention away from the idea that in a democracy, it is ‘the people’ that is sovereign (and from the fact that a parliament and the people are not the same things). We will come back to this point in the next chapter, when the theory of constituent power will be considered at length, but it is important to emphasise that in those instances in which sovereignty is more visible, such as periods of important constitutional transformations (i.e., in the context of democracy at the level of the fundamental laws), we can (and should) depart from the tradition of parliamentary sovereignty in order to come closer to the realisation of the democratic ideal. This does not mean, however, that written constitutions fare any better in terms of providing citizens with the opportunity to meaningfully participate in an episode of constitutional change. When one looks at the amendment formulas of the traditional liberal constitution, as the ones briefly mentioned in the previous section of this chapter, the lack of mechanisms for popular participation is apparent. First, the power to initiate a process of constitutional change normally lies in the hands of ordinary government officials. A good example is Article 134 of the Constitution of the Russian Federation (1993), which gives the initiative to propose constitutional amendments to several entities and officials, including the President, the State Duma and the Federation Council. Second, just as with the adoption of ordinary laws, the official deliberation about the proposed changes takes place among legislators, who are normally not explicitly authorised by the people to alter the fundamental law (this is also true of unwritten constitutions). Nevertheless, some constitutions, as exemplified in the previously mentioned provisions of the French and Spanish constitutions, condition the validity of some types of constitutional changes to the positive vote of the electorate in a referendum. But a referendum, as we saw earlier, cannot meet the demands of the principle of popular participation by itself, as it gives citizens a mere veto power over proposals of constitutional change. In that respect, as Spanish constitutional scholar Pedro de Vega has argued, a constitutional referendum “does not have the objective of legitimating

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constitutional change through an act of the sovereign people”82 but of making change more difficult.

Concluding remarks This chapter defended a particular conception of democracy, one which comes accompanied by the basic principles of democratic openness and popular participation. These two principles, I argued, are negated in important ways by the conception of democracy reflected in the dominant constitutional tradition. As Unger has written, such a tradition is characterised by two features: “a style of constitutional organization of government slowing politics down . . . and a set of practices and institutions helping to keep society at a relatively low level of political mobilization”.83 Those features, exemplified in the constitutional theories and amendment provisions surveyed in this chapter, are in direct conflict with the basic principles of democracy. So it seems that when it comes to the relationship between constitutionalism and democracy, there is conflict and tension all the way along. In the next chapter I will explore the theory of constituent power, which is, in my view, the missing link in the constitutionalism–democracy debate. Constituent power, in my view, provides a promising way of looking at the relationship between constitutionalism and democracy and, more importantly, invites the development of a weak constitutionalism, one that can live up to the demands of the democratic ideal. As will be argued in the rest of this book, only a regime that approaches constituent power not as a threat but as the possibility of correcting existing injustices can be considered legitimate from a democratic perspective.

Notes 1 As briefly noted in Chapter 1, the value of the conception of democracy that I subscribe to through this book is directly connected to the ideal of self-rule: 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 selfimposed elite). In this respect, it would be characterised by some authors as populist democracy. See for example Amy Gutmann, Democracy’, in Robert E Goodin and Philip Pettit (eds), A Companion to Contemporary Political Philosophy, Oxford: Blackwell Publishers, 1997, p 19. Such a conception of democracy is, in my view, particularly relevant today when, as John McCormick has noted, “[r]ather than facilitating popular rule, electoral democracies appear to permit and perhaps even encourage political and economic elites to enrich themselves at the public’s expense and encroach upon the liberty of ordinary citizens”. John McCormick, Machiavellian Democracy, Cambridge: Cambridge University Press, 2011, p vii. 2 See Ellen Meiksins Wood, ‘Democracy: An Idea of Ambiguous Ancestry’, in J. Peter Euben et al (eds), Athenian Political Thought and the Reconstruction of American Democracy, Ithaca: Cornell University Press, 1994, p 59. 3 Cornelius Castoriadis, ‘Socialism and Autonomous Society’, Telos, 1980, vol 91, p 104. See also Allan C. Hutchinson, It’s All in the Game: A Non-Foundationalist Account of Law and Adjudication, Durham: Duke University Press, 2000.

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4 Sheldon S. Wolin, ‘The Liberal/Democratic Divide: On Rawls’s Political Liberalism’, Political Theory, 1996, vol 24(1), p 98. 5 See Alan Keenan, Democracy in Question: Democratic Openness in a Time of Political Closure, Stanford: Stanford University Press, 2003, p 10. 6 Claude Lefort, ‘The Image of the Body and Totalitarianism’, in Political Forms of Modern Society, Cambridge: Cambridge University Press, 1986, pp 303–304. 7 See Jeremy Waldron, Law and Disagreement, Oxford: Clarendon Press, 1999, pp 255, 291. 8 The example is Waldron’s. 9 As Walter Murphy has expressed, “if citizens destroy their own right to have rights, they destroy their authority to legitimize a political system”. Walter Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order, Baltimore: Johns Hopkins University Press, 2007, p 507. 10 Cornelius Castoriadis, ‘The Greek Polis and the Creation of Democracy’, in David Ames (ed), Castoriadis Reader, Oxford: Blackwell Publishers, 1997, p 282. 11 Kathleen Sullivan, “Constitutional Amendmentitis”, The American Prospect, Fall, 1995. 12 Castoriadis, ‘The Greek Polis and the Creation of Democracy’, p 283. 13 Waldron, Law and Disagreement, p 310. Robert Dahl makes a similar point in a hypothetical dialogue between a procedural and a constitutional democrat. Robert Dahl, Democracy and its Critics, New Haven: Yale University Press, 1989, pp 172–173. 14 The paradigmatic example would be Germany under the Weimar constitution. 15 As John Rawls has stated: “[T]here is no human institution -political or social, judicial or ecclesiastical- that can guarantee that legitimate (or just) laws are always enacted and just rights always respected.” John Rawls, Political Liberalism, New York: Columbia University Press, 2005, p 416. See also Christopher Zurn, ‘Deliberative Democracy and Constitutional Review’, Law and Philosophy, 2002, vol 21, p 513. 16 In some contexts it will not be possible to make use of the most participatory procedures that would be otherwise technically available. For example, subjecting the adoption of every law to it having been proposed by popular initiative and approved by popular vote would be more participatory than the typical lawmaking process through a representative assembly, but it would be impractical and probably undesirable (since it would put too much of a burden on citizens). However, in other contexts, like the adoption of fundamental constitutional changes (as opposed to ordinary ones), it would be possible to use much more participatory procedures. The distinction between ordinary and fundamental constitutional change will be discussed in Chapter 7. 17 Castoriadis, ‘The Greek Polis and the Creation of Democracy’, p 275. 18 Jürgen Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’, Political Theory, 2001, vol 29, p 776. 19 Waldron, Law and Disagreement, p 283. 20 For a useful discussion, see David Held, Models of Democracy, Stanford: Stanford University Press, 2006. 21 Barry Holden, Understanding Liberal Democracy, London: Philip Allan, 1988, p 2. 22 The Federalist no. 55, Jacob Cooke (ed), Connecticut: Wesleyan University Press, 1961. For similar statements against popular assemblies and direct forms of democracy, see Jean Bodin, Six Books of the Commonwealth, Cambridge: Cambridge University Press, 2004; Adam Ferguson, An Essay on the History of Civil Society, Edinburgh: Edinburgh University Press Paperbacks, 1978, p 187; The Federalist, no. 10. 23 Joshua Cohen and Charles Sabel, ‘Directly-Deliberative Polyarchy’, European Law Journal, 1997, vol 3(4), p 322.

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24 John Burnheim, Is Democracy Possible? The Alternative to Electoral Politics, Cambridge: Polity Press, 1985, p 2. 25 Nadia Urbinati, Representative Democracy: Principles and Genealogy, Chicago: Chicago University Press, 2006, p 4. See also Jeremy Waldron, ‘Representative Lawmaking’, Boston University Law Review 2009, vol 89, p 335. 26 Joshua Cohen and Archon Fung, ‘Radical Democracy’, Swiss Journal of Political Science, 2004, vol 10(4), p 23. 27 Ibid. 28 Habermas, for example, uses the phrase “informal public sphere” to identify a space in which social movements and other groups deliberate about political matters independently from the state. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge: MIT Press, 1996, p 301. 29 Margaret Canovan, The People, Cambridge: Polity Press, 2005, pp 113–114. 30 See Burnheim, Is Democracy Possible?, p 92. 31 New technological developments ameliorate in important ways this second objection to the referendum, but would not fully deal with the problem of deliberation. For a proposal that seeks to do away with representative democracy and that would have randomly selected citizens determining state policy, see Burnheim, Is Democracy Possible? 32 This, however, notwithstanding the fact that there seems to be a general trend towards the use of referendums and initiatives, which some scholars associate with a lack of confidence in legislatures. See John G. Matsusaka, ‘The Eclipse of Legislatures: Direct Democracy in the 21st Century’, Public Choice, 2005, vol 124, p 157. 33 The most famous example is James S. Fishkin, Democracy and Deliberation: New Directions for Democratic Reform, New Haven, CT: Yale University Press, 1991. 34 This does not mean that these mechanisms cannot be combined with other forms of direct democracy and make them a truly democratic device. The Citizens’ Assemblies in British Columbia and Ontario, in which the recommendations of an assembly of randomly selected citizens were put to popular vote, are thus a step in the right direction. For a discussion, see Frank Fischer, Democracy and Expertise: Reorienting Policy Inquiry, Oxford: Oxford University Press, 2009. 35 Roberto Mangabeira Unger, Democracy Realized: The Progressive Alternative, New York: Verso, 2001, p 219. 36 Ibid. 37 Waluchow, A Common Law Theory of Judicial Review: The Living Tree, New York: Cambridge University Press, 2007 and Wil Waluchow, ‘Constitutions as Living Trees: An Idiot Defends’, Canadian Journal of Law and Jurisprudence, 2005, vol 18, p 207. 38 Waluchow, A Common Law Theory of Judicial Review, p 183. 39 Ibid., p 136. 40 Ibid., p 228. 41 See Robert Post and Reva Siegel, ‘Roe Rage: Democratic Constitutionalism and Backlash’, 42 Harvard Civil Rights-Civil Liberties Law Review, 2007, vol 42, p 373. For a history of the US Supreme Court that seeks to show that the court has actually been responsive to democratic politics, see Barry Friedman, The Will of the People: How Public Opinion has Influenced the Supreme Court and Shaped the Meaning of the Constitution, New York: Farrar, Straus & Giroux, 2009. 42 Post and Siegel, ‘Roe Rage’, p 376. 43 [1930] 1 DLR 98, AC 124 44 Emphasis added.

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45 Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution, Cambridge: Harvard University Press, 1996, p 11. 46 Since he is not committed to a particularly strong form of democracy, Waluchow suggests that the problem of a difficult amendment process is not so serious when constitutions are not seen as “finished product[s] handed down in a form fixed until such time as its amending formula is invoked successfully or a revolution occurs”, but as a work in progress. Waluchow, A Common Law Theory of Judicial Review, p 69. However, as the previous critique of the living-tree conception suggests, that will not do, at least not if one takes the principle of democratic openness seriously. 47 Donald S. Lutz, ‘Toward a Theory of Constitutional Amendment’, in Sanford Levinson (ed), Responding to Imperfection: Theory and Practice of Constitutional Amendment, Princeton: Princeton University Press, 1995, p 260. According to Lutz, the US Constitution had the second most difficult amendment process in 1995 (a level of difficulty only surpassed by the now extinct Constitution of Yugoslavia). 48 The relevant text of the article reads as follows: “The Congress, whenever twothirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress . . .” 49 Richard Bernstein, ‘The Sleeper Wakes: The History and Legacy of the TwentySeventh Amendment’, Fordham Law Review, 1992, vol 61, p 497. 50 C-Span’s Capitol Questions, C-Span.org (2000), www.c-span.org/questions/ weekly54.asp. 51 For a discussion of the unlimited or limited power of an Article V Convention, see Walter E. Dellinger, ‘The Recurring Question of the “Limited” Constitutional Convention’, Yale Law Journal, 1979, vol 88, p 1623. 52 In fact, according to some interpretations of Article V, the required number of states had applied for a Convention as of 1993, but Congress did not convene it. Michael Stokes Paulsen, ‘How to Count to Thirty-Four: The Constitutional Case for a Constitutional Convention’, Harvard Journal of Law and Public Policy, 2011 vol 34, p 856. By 2010, the number of states asking for a Convention had decreased from 45 to 33 (34 being the requisite number of states). 53 Some of these questions are considered in Michael B. Rappaport, ‘Reforming Article V: The Problems Created by the National Convention Amendment Method and How to Fix Them’, Virginia Law Review, 2010, vol 96, p 1523. See also Richard B. Bernstein (with Jerome Agenl), Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It?, Lawrence: University Press of Kansas, 1993. 54 In New Zealand, Section 268(2) of the Electoral Act entrenches certain provisions of that Act and of the Constitution Act 1986, and establishes that they can only be repealed or amended by 75 per cent of all the members of the House of Representatives, or by a majority of the electors in a referendum. 55 ‘To a certain extent’, since the principle of democratic openness, as noted earlier, is not only about ‘openness’ but also about an openness than can be accessed by ordinary citizens, a democratic openness. 56 J.A. Schumpeter, Capitalism, Socialism and Democracy, London: Allen and Unwin, 1976. Examples of these works include Giovanni Sartori, Democratic Theory, Detroit: Wayne State University Press, 1962; Harry Eckstein, A Theory of Stable Democracy, Princeton: Princeton University Press, 1961; Anthony Downs, An Economic Theory of Democracy, New York: Harper and Row, 1956; and Robert A.

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57 58 59 60 61 62

63 64 65 66 67 68 69 70

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Dahl, A Preface to Democratic Theory, Chicago: The University of Chicago Press, 1970. Peter Bachrach, The Theory of Democratic Elitism: A Critique, Boston: Little, Brown, 1967, p 93. Schumpeter, Capitalism, Socialism and Democracy, p 243. Michael Saward, Democracy, Cambridge: Polity Press, 2003, p 39. Schumpeter, Capitalism, Socialism and Democracy, p 269. Ibid., p 269. Ibid., p 295. The limited role that Schumpeter assigns to the majority of citizens rests on the view that most people are ignorant about political issues, irrational in their preferences, easily manipulated by politicians, etc. See Saward, Democracy, p 42. Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century, Norman: University of Oklahoma Press, 1991, p 6. Joseph Nye, The Paradox of American Power: Why the World’s Only Superpower Can’t Go it Alone, Oxford: Oxford University Press, 2002, p 109. Dahl, Democracy and Its Critics, p 233. Ibid. C.B. McPherson, The Life and Times of Liberal Democracy, Oxford: Oxford University Press, 1977, pp 108, 113. Carole Pateman, Participation and Democratic Theory, Cambridge: Cambridge University Press, 1970; Benjamin Barber, Strong Democracy: Participatory Politics for a New Age, Berkeley: University of California Press, 1984. See Cohen and Sabel, ‘Directly-Deliberative Polyarchy’; Cohen and Fung, ‘Radical Democracy’. As Wolin has stated, the requirements of ‘democracy’ are so precise that world powers periodically dispatch experts to countries of the so-called ‘Third World’ to determine whether they have been met. Sheldon Wolin, ‘Fugitive Democracy’, in Seyla Benhabib (ed), Democracy and Difference: Contesting the Boundaries of the Political, Princeton: Princeton University Press, 1996, p 42. One exception is Ethan Leib who, writing in a US context, proposes the creation of a ‘popular branch’ of government (which would operate through juries composed of randomly selected citizens) and have the function of enacting laws and constitutional amendments. However, Leib thinks that the popular branch should be subject to a supermajority requirement, its proposals may be vetoed by the executive or legislative branch (in the latter case by a supermajority of legislators), and its decisions would be subject to judicial review: courts would thus be authorised “to uphold basic constitutional provisions to avert the tyranny of the majority and unacceptable deliberative findings”. Ethan J Leib, Deliberative Democracy in America: A Proposal for a Popular Branch of Government, University Park: Pennsylvania State University Press, 2004, pp 12, 22, 83. Bruce Ackerman, We the People: Foundations, London: Belknap Press of Harvard University Press, 1991, p 6 Bruce Ackerman, ‘Neo-Federalism?’, in Jon Elster and Rune Slagstad (eds), Constitutionalism and Democracy, New York: Cambridge University Press, 1988, p 163. Ackerman identifies three periods of constitutional politics in US history: the founding, the Civil War amendments and the judicial triumph of the New Deal. Ibid., p 167. Bruce Ackerman, We the People 2: Transformations, London: Belknap Press of Harvard University Press, 1998, p 415. Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How the People can Correct It, New York: Oxford University Press, 2006, p 22.

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77 For a view according to which Article V only applies to government and not to ‘the people’, who always remain free to change the constitution through other means (e.g., a national referendum), see Akhil Reed Amar, ‘The Consent of the Governed: Constitutional Amendment Outside Article V’, Columbia Law Review, 1994, vol 94, p 457. 78 Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates, Cambridge: Cambridge University Press, 2010, p 9. 79 Ibid., p 10. 80 Ibid., p 9. 81 Ibid., p 9. 82 Pedro de Vega, La Reforma Constitucional y la Problemática del Poder Constituyente, Madrid: Técnos, 1985, p 302. For de Vega, the constitutional referendum is part of the system of checks and balances typical of the constitutional state, and not a device for the exercise of constituent power. A similar conclusion was reached by the Colombian Constitutional Court in its Opinion C-141 (2010), which invalidated a controversial constitutional amendment about Presidential re-election. This decision will be discussed in Chapter 7. 83 Unger, Democracy Realized, p 213.

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The theory (and practice) of constituent power

The constitutionalism–democracy dilemma – the idea that constitutionalism and democracy are in tension (or in conflict) with each other – has been the object of judicial treatment in several cases which, in one way or another, touched upon the very basis of the juridical orders in question. In North America, one of these cases is the Reference re Secession of Quebec, where the Supreme Court of Canada considered the question of the unilateral secession of its second most populous province.1 In an attempt to balance democratic and constitutional principles, the Court held that the Canadian Constitution, which does not contain a provision allowing provinces to secede from Canada, could not be legitimately circumvented even if a majority of Québécois voted in favour of secession. According to the Court, the Canadian conception of democracy is not a mere system of majority rule but, taken in conjunction with other constitutional principles, involves the idea “that the political representatives of the people of a province have the capacity and the power to commit to be bound into the future by the constitutional rules being adopted”.2 In this sense, far from negating democracy, constitutionalism creates an orderly framework that allows people to make political decisions: “Viewed correctly, constitutionalism and the rule of law are not in conflict with democracy; rather, they are essential to it.”3 One year later, the Supreme Court of Justice of Venezuela examined a similar issue. The case before the Supreme Court of Justice did not involve the secession of a political unit from a federation, but the creation of a new constitutional regime through a procedure not contemplated by the constitution’s amendment rule. The controversy originated when the then recently installed government called for a referendum that asked the Venezuelan electorate whether they wished to convene a constituent assembly in order to create a new juridical order. The amendment procedure of the 1961 Constitution, a typical liberal constitution, placed the amending power in the hands of the ordinary legislature. Not surprisingly, many jurists argued that to convene a constituent assembly was contrary to the established juridical order and would require a previous constitutional amendment. In a decision that explicitly recognised the existence of a tension between constitutionalism and democracy, the court held that the constitution’s amendment rule applied only to government and

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not to the people in the exercise of their constituent power, which included the ability to alter the constitutional regime through extra-constitutional means.4 The reasoning of the court, which justified the abolition of the established constitutional regime in violation of valid positive law, seems alien to the traditional constitutionalist approach. It is, however, grounded on a theory that, although mostly ignored by contemporary Anglo-American constitutional thought, might allow us to re-conceive the relationship between constitutionalism and democracy. This chapter will introduce the theory of constituent power and consider the role, if any, it has played in the contemporary constitutional practice of different countries. The chapter begins by considering the work of George Lawson and John Locke, which is sometimes seen as an early formulation of the theory of constituent power. In showing that these two authors can at best be understood as advancing a theory of resistance, this first section will stress constituent power’s main feature: that it can be exercised at any moment after a constitution is in place, not only as a response to extreme governmental abuses. The second section considers the work of Emmanuel Sieyes and Carl Schmitt. Sieyes provided the first major theoretical treatment of constituent power, and Schmitt developed (and radicalised) Sieyes’ conception in important ways. Finally, the third section will contrast the very limited role that constituent power has played in Anglo-American constitutionalism (particularly in the tradition of parliamentary sovereignty) with its presence and influence in Latin America. In fact, Latin American constitutionalism, with all its problems and setbacks, has developed the theory of constituent power in interesting and promising ways.

Locke and Lawson: constituent power or right of resistance? Although the modern theory of constituent power did not appear until the late eighteenth century in the context of the French and American revolutions, George Lawson and John Locke came close to developing its main ideas. Not surprisingly, some authors see Locke and Lawson as theorists of constituent power, but I believe this characterisation is mistaken.5 At best, Lawson and Locke can be understood as providing a theoretical explanation for the right to resist an oppressive regime.6 It is true, as Andreas Kalyvas has argued, that Lawson and Locke went beyond the idea of sovereignty as ‘the power of command’ (present in authors such as Jean Bodin and Thomas Hobbes, and still very influential in our times) and linked sovereignty to the community’s power of creating new constitutional regimes.7 But Lawson and Locke did not see this power, this popular sovereignty, as susceptible to being exercised at any moment; rather, they conditioned it to situations in which government dissolved itself by breaching the people’s trust. As Kalyvas himself has maintained, they were more interested in justifying resistance to an unjust government than “to account for those historical moments of genuine rupture and transformation”.8

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George Lawson published his Politica Sacra et Civilis9 in 1657, engaging in what has been aptly described as a “systematic and comprehensive reconstruction of the theory of sovereignty”, one that places ultimate sovereign power in the community rather than in a parliament or a prince.10 Lawson conceived a community as a group of associates capable of constituting a commonwealth or form of government, which he defined as the “order of superiority and subjection in a community for the public good”.11 Once a commonwealth is established, individuals become subject to the power of those invested with the faculty of law-making.12 But the ordinary law-making power cannot adopt certain kinds of laws or give subjects certain types of commands, at least not if it does not wish to awaken the real sovereign power, which always remains in the community. That is to say, Lawson thought that in every commonwealth, regardless of the form of government it assumed, there were two different kinds of power. On the one hand, he identified personal majesty with the ordinary lawmaking power of government, “the power of a commonwealth already constituted”, which was exercised in England by the two houses of Parliament and the King.13 On the other hand, he distinguished personal majesty from the “power to constitute, abolish, alter, [and] reform forms of government”, which he attributed to the community and identified as real majesty.14 Personal majesty includes what, in Bodin’s and Hobbes’ theories, was understood as the ‘power of command’, the power “which concerns foreign affairs, peace, war, treaties, embassies; and the regulation of religion and human law”.15 In contrast, real majesty was defined as the sovereign “power to model the state”.16 The power to constitute government – real majesty – is never transferred from the community to their representatives.17 However, it is to be exercised only after government dissolved itself by exceeding its jurisdiction or undermining the constitution: “[a]s the community hath the power of constitution, so it hath of dissolution, when there shall be a just and necessary cause”.18 Lawson thus denounced the ideas of Junius Brutus, usually attributed with the authorship of Vindiciae Contra Tyrannos, who thought that whoever had the power to constitute a government also had the power to create a new one whenever they wished. A multitude of subjects could not get together and simply decide they wanted to alter or abolish the constitution for, as subjects, they had voluntarily submitted to obey the “laws once made, or suffer”.19 In other words, subjects lived under a form of government and had obligations towards it: only the community, after government had dissolved, could exercise its real majesty if they had just and necessary cause.20 When the conditions on which personal majesty is held are transgressed, such as cases of “negligence, imprudence, injustice, oppression, and other such like sins”,21 the obligation to obey terminates or dissolves and all authority reverts back to the community.22 Those types of abuses “offend God” and, in some cases, God might stir up the people to rebel.23 To use the example that Lawson probably had in mind: when Charles I broke with Parliament in 1642, government was

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dissolved and all power reverted to the community, which was then (and only then) free to establish a new constitutional regime.24 Parliament, in contrast, are only authorised to exercise its personal majesty within certain limits and for certain purposes, and cannot “meddle with the fundamental laws of the constitution”.25 Placing himself at odds with latter formulations of parliamentary sovereignty, Lawson was very clear on this point. In this respect, he agreed with Sir Roger Owen, who thought that there were things even parliament could not do, such as changing the form of the polity from a monarchy to a democracy.26 The reason why parliament could not do such things, Lawson argued, is because it only had personal and not real majesty.27 In fact, some of Lawson’s statements appear to be early formulations of the doctrine of constitutional supremacy: “The form of government was first constituted by the community of England, not by the parliament. For the community and people of England gave both king and parliament their being: and if they meddle with the constitution to alter it, they destroy themselves . . .”28 This does not mean that Lawson thought that once government was dissolved, the community could not make use of the existing parliament to exercise its real majesty, “but this cannot be as a parliament, but considered under another notion, as an immediate representative of a community, not of a commonwealth”.29 Like Lawson, John Locke maintained that the supreme power of the community is to be exercised only in situations of extreme injustice. The community always retains the right of saving itself from anybody, including the legislative and executive branches of government.30 In Locke’s words, it has “a supreme power to remove or alter the legislative when they find the legislative act contrary to the trust reposed in them”.31 Human beings had entered into society and established a commonwealth (an independent community that could take the form of a democracy, monarchy, or aristocracy)32 precisely to enjoy the protection of their property (which, for Locke, included their lives, liberties and estates)33 and there was no reason why they should tolerate a regime that violated their rights to those things.34 This power could not be exercised after “every little mismanagement in public affairs”35 but only when any part of government acted with “a calculated design to subvert the law and public liberty as such”.36 For example, when parliament acts against the trust reposed in it, by making itself or any other person or entity a master or arbitrary disposer of the property of the people, the community’s right to create a new government is triggered.37 The same occurs when an executive exercises its powers arbitrarily or hinders the legislature from meeting or acting freely, or when the legislative attempts to transfer its law-making power to other hands, for “the people alone can appoint the form of the commonwealth, which is by constituting the legislative and appointing in whose hands that shall be” (in this sense, like Lawson, Locke set limits on the kinds of constitutional changes that could be made by parliament).38 When a community is confronted by actions of that type, by a “long train of abuses” from its government, government dissolves

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and power “devolves to the people who have a right to resume their original liberty”.39 In exercising that right, they can provide for their own safety and security (which is the very reason why they entered into the social contract in the first place) by establishing a new legislative power. However, in a normal situation where government is in place, parliament is to be considered the supreme power, for it has a superior power to adopt laws that bind all subjects.40 Lawson and Locke’s conception is reflected in the founding document of the American Revolution: “[W]henever any Form of Government becomes destructive of these ends [’that all men are created equal, that they are endowed by their Creator with certain unalienable Rights’] it is the Right of the People to alter or to abolish it, and to institute a new Government.”41 Echoing Locke’s literal words, the same document established: “[W]hen a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce [the people] under absolute Despotism, it is their right, it is their duty, to throw off such Government . . .”42 In that respect, like Lawson, Locke was at pains to show that even if it is true that the people as a whole is the real supreme power, it cannot be considered as such “under any Form of Government”, because “this power of the people can never take place till the government be dissolved”.43 By creating a commonwealth, the people “provided a legislative with power to continue forever”,44 and they cannot resume their political power while the government lasted. Nevertheless, and providing the community with an important role in determining whether it could exercise its supreme power, Locke maintained that whenever there was a question of whether the legislative or executive have acted against the people’s trust and therefore government should dissolve, “the people shall be judge”.45 Despite providing an important justification for resistance, this approach, as Lawson’s, should be understood as a way of limiting the power of government: it is not inspired by a desire to place constitutional change in the hands of the citizenry.46 That is why Locke devotes an important section of the Second Treatise to rejecting the possible argument that his theory is an invitation to rebellion.47 He thus maintained that even “[g]reat mistakes in the ruling part, many wrong and inconvenient laws, and all the slips of human frailty will be borne by the people without mutiny or murmur”.48 In fact, Locke’s theory is consistent with limiting people’s participation in politics to an extent that one might argue, with Edmund Morgan, that it provided a rhetorical strategy for government to operate free of popular control.49 In other words, it is a theory inconsistent with the basic principles of popular participation and democratic openness. A formulation of the power to constitute government consistent with these principles can be found in the theory of constituent power, defended by Emmanuel Sieyes and Carl Schmitt, according to which present generations ought to have an unlimited right to model the fundamental laws under which they live.

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Sieyes and Schmitt on constituent power and constitutional remaking Sieyes developed the famous distinction between constituent and constituted powers in What is the Third Estate?50 Despite its undeniable theoretical value, What is the Third Estate? was a political pamphlet written with a determinate political objective: proving that the Third Estate, as the only legitimate representative of the French nation, had the power to adopt a constitution for France. As we will see below, unlike Lawson and Locke, Sieyes did not restrict this power to instances of tyranny or despotism in which government dissolved and power reverted to the community. He thought that a nation, understood as “a body of associates living under common laws and represented by the same legislative assembly”,51 could not be permanently subject to any constitution, that the living could not waive their right to will even after constituting a juridical order. While the power of the nation to alter its constitution was unlimited, the nation’s representatives had to operate according to the requirements and procedures contained in it. Ordinary representatives were an inevitable necessity in a community that had become “too numerous and occupy too large an area to exercise their common will easily by themselves”, but should not be attributed sovereign powers.52 Accordingly, representatives did not have the power to create or to change a constitution: a constitution, after all, is the document that allows the representative assembly to exist and to act, and that ensures public power is not used to injure the members of the community (e.g., through the adoption of a set of “political safeguards” that limit political power).53 Although a form of positive law, the constitution emanates “exclusively from the will of the nation” (as opposed to the will of ordinary representatives).54 Ordinary representatives are only called to maintain a good social administration and thus have a power confined to governmental affairs.55 In short, a legislature exists only in the form “which the nation has chosen to give to it”, and is “is nothing outside the articles of the constitution; only through its constitution can it act, conduct its proceedings and govern”.56 Up to now, we find no irreconcilable differences between Sieyes, Locke and Lawson. However, and here is where he departs from the two other authors, Sieyes believed that in the same way that it was correct to say that representatives are bound by the constitution, “it would be ridiculous to suppose that the nation itself could be constricted by the procedures or the constitution to which it had subjected its mandatories”.57 The nation is thus free to unbind from the constitutional regime whenever its interest requires so; the mere fact of expressing its will “puts an end to positive law, because it is the source and the supreme master of positive law”.58 Sieyes understood the nation, as the bearer of the constituent power, to be in the same position as the individuals living in the state of nature and, consequently, the exercise of its will had to be superior and independent of any constitutional form. “The manner in which a nation exercises its will,” wrote

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Sieyes, “does not matter; the point is that it does exercise it; any procedure is adequate, and its will is always the law.”59 On the other hand, the constituted powers – the legal and political institutions created by the constituent power – are always limited by the constitutional forms that grant their existence.60 For example, an ordinary legislature must adopt statutes in the manner prescribed in the constitution and, in the exercise of its ordinary law-making faculties, it has no power to alter the constitutional clauses that determine its own competencies.61 In attributing the unlimited faculty of making and remaking constitutions to the people as opposed to government, Sieyes’ theory of constituent power shows an important democratic potential but, unfortunately, he did not take that potential to its ultimate implications. On the contrary, he combined his theory of constituent power with a particular conception of representation that extirpates much of its radical democratic force. It will be recalled that for Sieyes, representation in a modern society is necessary since the nation comprises too many members and they cannot assemble to exercise ordinary governmental powers. But the same reasons that led Sieyes to conclude that the institution of representation is necessary at the level of day-to-day governance also led him to conclude that the exercise of constituent power could (and needed to) be represented as well. He thus introduced the idea of extraordinary representatives, granted with “whatever new powers the nation chooses to give them”.62 For him, a body of extraordinary representatives armed with the mandate to engage in the adoption of a new fundamental law “is in the same position as the nation itself in respect of its independence from the constitutional forms”.63 That is to say, extraordinary representatives can will as individuals in the state of nature could will, and are “a substitute for the whole nation in the course of framing its constitution”.64 The will of the extraordinary representatives, just as the will of the constituent power itself, is the source of constitutional law: they can put an end to any form of positive law, create a new constitution or transform an already existing one in important ways.65 From the perspective of democracy at the level of the fundamental laws this creates some obvious problems: the episodical character of constituent activity makes possible more direct forms of popular involvement in constitutional change. But perhaps even more democratically deficient is the fact that the nation, like Lawson’s community, can give (through unspecified means) the ordinary assembly (that is, the established legislature) the mandate to exercise constituent power on its behalf. “Identical people,” he wrote, “can certainly take part in different bodies and exercise in turn, by virtue of special mandates, functions which, given their nature, must not be merged together.”66 In such occasions, when acting as extraordinary representatives, legislators are not subject “to any procedures whatsoever”, but constitute an assembly that “meets and debates as the nation itself would do if we assumed a nation consisting of a tiny population that wanted to give its government a constitution”.67 As Carré de Malberg argued, through the introduction of the principle of representation, Sieyes “notably weakened the scope of his system of popular

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sovereignty”.68 In fact, some of Sieyes’ thoughts on the relationship between democracy and representation are strongly reminiscent of the anti-democratic sentiment that was characteristic of the eighteenth century: “The people, I repeat, in a country which is not a democracy (and France would not be one), the people may only speak and may only act through its representatives.”69 However, like most nineteenth-century political theorists, Sieyes identified democracy with what in Chapter 4 we called ‘direct assembly democracy’, and thus thought that it was a form of government impracticable in France.70 Despite its democratic limitations, Sieyes’ theory of constituent power goes beyond Lawson’s and Locke’s theories of resistance and recognises the people’s ultimate constitution-making power. It is a constitutional theory that rests on a distinction between a will that pre-dates the constitution and is superior to it, and the positive constitutional forms that determine how public power is to be exercised and how ordinary laws are to be created. It attributes to the constituent power not only the extraordinary faculty of constitution-making, but the capacity of not being absorbed by the adoption of a constitution. In this respect, Sieyes’ conception points toward a constitutional theory alien to liberal constitutionalism, one which allows an extra-constitutional power to exist besides the established constitution. Sieyes’ theory was further developed by Carl Schmitt in his comprehensive study of the Weimar Constitution.71 Like Sieyes, Schmitt conceived constituent power as an absolute and unlimited constitution-making faculty, radically unbound by the established constitutional forms and incapable of being limited by any form of positive law. Nevertheless, Schmitt developed the relationship between constituent power and the constitution in more systematic ways. For him, the constituent power – through an act of will – creates the Constitution, which carries with itself the fundamental political decisions about the form of government and the structure of the state. This is why Schmitt defined constituent power as a political will “capable of making the concrete, comprehensive decision over the type and form of its own political existence”.72 As such, the Constitution is to be distinguished from mere ‘constitutional laws’ (understood as individual constitutional clauses enumerated in the document called ‘the constitution’ but lacking a truly fundamental character).73 Constitutional laws are simply norms that have been included in the written constitution in order to protect them from parliamentary majorities, and should not be confused with the fundamental political decisions made by the constituent power. The distinction between the Constitution and constitutional laws has important implications for the power of constitutional reform. For Schmitt, the power to reform a constitution is a constituted power (that is, a power granted by the constitution itself) that can only modify the constitutional laws and does not include the faculty of producing the kind of profound changes proper for an exercise of constituent power.74 That is to say, only the constituent subject, not the institution given the power of constitutional reform, is capable of altering the Constitution and the

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fundamental political decisions it entails. However, this does not mean that the Constitution can never be altered, that constituent power may only be exercised once. In fact, Schmitt defended and developed Sieyes’ idea that constitutions are born and may die, but that the constituent power on which they rest cannot be destroyed or consumed by the law it creates: “The [constituent power]75 is not thereby expended and eliminated, because it was exercised once. The political decision, which essentially means the constitution, cannot have a reciprocal effect on its subject and eliminate its political existence.”76 “This political will,” he continued, “remains alongside and above the constitution”.77 Far from being a ‘one-time’ event (which is the practical reality in the context of most constitutions), the exercise of constituent power remains an ever-present possibility. As William Scheuerman has noted, for Schmitt, constituent power continues to exist above and beyond the institutions of a liberal constitutional regime.78 This is why, at least in part, constituent power should not be identified with the activity of founding a new state. In Schmitt, constituent power presupposes the existence of the state, the existence of a people already organised politically. In the language of modern political theory, it is premised on the idea that the ‘social contract’ is already in place, that the transition from the state of nature to civil society has already occurred: “The social contract, consequently, is already presupposed in the theory of [the constituent power of the people] when one considers its construction necessary at all.”79 Accordingly, Schmitt argued that during the American Revolution the concept of constituent power could not be identified with clarity, because the episodes of constitution-making that followed the Declaration of Independence coincided with the creation of a series of new states. But during the French Revolution the novelty of this concept was fully appreciated. There, a politically conscious people decided to adopt a new constitution within a state that pre-dated the revolution and continued to exist after it.80 Like Sieyes, Schmitt insisted that constituent power could not be limited by law or regulated by any legal procedures; the will of the constituent subject was to be seen as an “unmediated will”.81 “No constitutional law, not even a [C]onstitution,” Schmitt wrote, “can confer [constituent power] and prescribe the form of its initiation.”82 Nevertheless, he maintained that even though the initiation of an exercise of constituent power could not be limited by any rules or institutions, the “execution and formulation” of the decisions of the constituent subject required certain organisation and procedures.83 Otherwise, the constituent subject would remain in a state of powerlessness and disorganisation, unable to transform its will into law. In the context of modern democracy, these procedures take different forms, but their paradigm is the National Constituent Assembly that drafts a constitution (and whose work is sometimes, and under Schmitt’s view, ideally, subject to popular ratification before it comes into effect).84 Although such an assembly acts as a ‘sovereign’ dictator (in the sense that it is not bound by the established constitutional forms), it is not itself the sovereign. As such, it must always act in “the name of and under

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commission from the people, which can at any time decommission its agents through a political act”.85 Schmitt combated Sieyes’ strategy of combining the democratic theory of the people’s constituent power with the “antidemocratic theory of the representation of the people’s will”.86 He rejected this idea because he thought that the will of the people,87 the constituent power, could not be represented, and that any attempt to do so supposed the replacement of democracy with aristocracy.88 In that respect, and unlike Sieyes, Schmitt thought that it would have been more appropriate for the constitution drafted by the French Constituent Assembly to have been directly ratified by the French people in 1791.89 As Andrew Arato has noted, Schmitt “considers it a fatal omission that, in line with Sieyes’ peculiar interpretation of Rousseau, the assembly did not consider it essential to have its constitutional product ratified in a popular referendum”.90 Even if, as noted earlier, a referendum is not a particularly participatory and deliberative institution, I believe that we can identify here an important distinction between Sieyes and Schmitt. While the former thought that the constituent power could be represented, the latter insisted that it could only be delegated. Under Schmitt’s view, a constituent assembly is not the bearer of the constituent power and should not be confused with it.91 The practical implication of this idea is that a constituent assembly does not have the legal power to create a constitution by itself, without a draft having been ratified by the people (an idea reflected in the institution of the ratificatory referendum, where the electorate affirms – or negates – that the proposed constitution is ‘theirs’). However, Schmitt’s view about what counts as a manifestation of the ‘will of the people’ is inconsistent with most contemporary formulations of democracy (as well as with the one defended in Chapter 4) as it is does not seem to require any meaningful degree of participation and deliberation. In fact, Schmitt advanced the problematic view that the will of the people is best expressed through the act of acclamation, exemplified in a multitude that answers ‘yes’ or ‘no’ to a fundamental political question.92 Nevertheless, as we will see in Chapter 6, when combined with a strong conception of democracy, Schmitt’s approach can assist us in upsetting the balance between constitutionalism and democracy in favour of the latter.

Constituent power in contemporary constitutionalism Sieyes and Schmitt were no democrats, and yet their theories of constituent power have important democratic implications. Constituent power, in Ulrich Preuss’ words, is “an important part of the doctrine of popular sovereignty”93: constituent power means that the people, in the exercise of their (popular) sovereignty, may adopt any constitution they want. It is not surprising that the actual practice of constitutional change rarely complies with constituent power’s prescriptive aspects. Not only are constitutions sometimes adopted in

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a context in which the constitution-making body is not free to adopt any constitution it wants,94 but some constitutions are also adopted under military occupation.95 In terms of constituent power’s collective aspects, even the constitutions of the world’s leading democracies have been adopted and can be changed by government officials with little participation from the public, as we saw in Chapter 4.96 Nevertheless, as we will see in later chapters, some constitutions and processes of constitutional change, particularly in the Latin American region, seem to take the practical implications of the theory of constituent power seriously. To be sure, the fact that the practice of constitution-making and constitutional reform is frequently inconsistent with the theory of constituent power does not mean that it should be discarded. At the very least, the concept of constituent power provides us with some general indications about how constitutions should be created and re-created in a democracy; about how the constitutional regime should approach the sovereignty of the people. In short, about what should be the relationship between democracy and constitutionalism. This section will briefly examine some of the treatment that constituent power has received in the Anglo- and Latin American constitutional traditions. A full examination of this topic would, of course, require an additional book, so this section will be limited to a few examples of how the concept of constituent power has been deployed (or rejected), in some contexts, beginning with modern Britain. Since the theory of constituent power was developed in the tradition of written and supreme constitutions, it is not surprising that, until very recently, references to it in English constitutional theory are scarce.97 One of the reasons for this absence is the historical force of the doctrine of parliamentary sovereignty. In an important sense, the idea of a sovereign parliament that can alter the constitution by a simple majority vote rests on a rejection of the theory of the constituent power of the people (which is why, as we suggested earlier, Lawson’s conception explicitly rejects the very basis of parliamentary sovereignty). This point was captured nicely by Alexis de Tocqueville when he described the Westminster Parliament as “at once a legislative and constituent assembly”.98 Albert Venn Dicey, the principal exponent of the orthodox version of parliamentary sovereignty in the United Kingdom, agreed with the French author in his famous Introduction to the Study of the Law of the Constitution.99 According to Dicey, de Tocqueville provided a “convenient formula” for explaining the principle that Parliament may create any law it wants.100 Distancing the English system from the concept of constituent power, he added that since under the English constitution there was no clear distinction between fundamental and non-fundamental laws, “the very language expressing the difference between a ‘legislative’ assembly which can change ordinary laws and a ‘constituent’ assembly which can engage in fundamental constitutional change . . . has to be borrowed from the political phraseology of foreign countries”.101 An implication of this view is that under the

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English constitution the distinction between people and legislature is weak or non-existent: the people, even if sovereign in some sort of abstract way, can only act through parliament. Any strong distinction between parliament and the people threatens the doctrine of parliamentary sovereignty as it opens the way for arguments (like Lawson’s) that seek to justify the existence of legal limitations on parliament’s law-making power by reference to a superior popular sovereign.102 This is partly why Edmund Morgan once wrote that in England, representatives “invented the sovereignty of the people in order to claim it for themselves”, and saw it as existing only in the actions of a legislature who claimed to act in the name of the citizenry.103 Constituent power, Dicey suggested, is a foreign concept, one that belongs to countries with written and entrenched constitutions and is based on a distinction between a limited legislature and a sovereign people, attributing the latter with a superior power of constitutional change. According to Dicey, even if the people could be considered the political sovereign under the English constitution, the legal sovereign was the Crown-in-Parliament, and legal sovereignty enables its bearer to create any constitutional content it wishes.104 But Dicey seems to have abandoned this view in later writings, where he identified “the electors” as “the true sovereign of the country”, and even complained that “[our] present scheme of government . . ., while it ultimately refers every question to the decisions of the electors, is so worked as to prevent the electors from deciding any questions on its intrinsic merits”.105 In a language strongly reminiscent of the opening lines of Sieyes’ What is the Third Estate?, he added that under the current system, “Party becomes everything, the Nation sinks to nothing.”106 Taking this idea to its apparent natural consequences, he proposed the enactment of a ‘Referendum Act’ that would provide that no Bill affecting what he considered to be fundamental aspects of the constitution (Dicey specifically mentions the rights of the Crown, the constitution of either House of Parliament, and the Acts of Union), “should become law until it had been submitted to the electors of the United Kingdom for their approval or disapproval”.107 Such an Act, he wrote, would make everyone realise “the difference between any ordinary law and the fundamental laws of the realm”.108 One can thus find in Dicey at least a germ of the idea of the people’s constituent power, and of its role in the making and re-making of constitutions.109 The recent national referendum on a change to an ‘Alternative Vote’ electoral system, whose results were binding for government, might suggest that the United Kingdom is moving in the direction of a constitutional recognition of the sovereignty of the people.110 Nevertheless, although the institution of a referendum frequently signals some sort of commitment to the idea of a sovereign people (as opposed to a sovereign legislature), a referendum can rarely be characterised as a proper means for the exercise of constituent power. As Dietrich Conrad has observed, the democratic value of a constitutional referendum is dubious, since it must be restricted “to a few questions to be answered yes or no, [and] since it does not give the people an active part in

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moulding constitutional details and is, at its best, more in the nature of an ultimate veto power”.111 Put differently, and as I have maintained in previous chapters, a constitutional referendum cannot satisfy the principles of democratic openness and popular participation. A referendum presents citizens with a set of predesigned alternatives that they cannot change, and it does not allow them to put into question different constitutional provisions, much less the constitutional regime as a whole. It also fails to guarantee the degree of popular involvement that the principle of popular participation mandates. Rather than participating in proposing, deliberating and deciding on a set of fundamental constitutional changes, citizens are merely allowed to consent or reject them. Despite some weak indications to the contrary, it seems, as Martin Loughlin has maintained, that the concept of constituent power serves no juristic function in contemporary Britain: constituent power appears to have been absorbed by the doctrine of parliamentary sovereignty.112 Interestingly, in the United States (which rejected the doctrine of parliamentary sovereignty in the eighteenth century) the concept of constituent power has been notoriously absent as well. It is true that one can find references to the term ‘constituent power’ in early American literature, and the idea that the people were free to abolish or alter the constitution through extra-legal procedures was very much present in eighteenth-century North America.113 But in contemporary times one rarely finds any references to the theory of constituent power (or even indications of its existence) in the works of most constitutional scholars. In fact, one can understand Article V of the US Constitution as ‘burying’ constituent power under an amendment formula that can technically be used to change any constitutional provision, but the requirements of which are extremely difficult to meet.114 In such a situation, the very existence of an ‘unlimited’ power of constitutional reform makes an extra-constitutional exercise of constituent power appear unnecessary and, at the same time, the stringent requirements of the amendment procedure tend to prevent important transformations to take place. In other places, constituent power is an important part of mainstream constitutional thought. In Latin America, for example, the theory of constituent power has been a regular topic in legal–academic writings. The presence of constituent power in this juridical tradition is probably related to the way in which Latin American jurists, like their European counterparts, think about constitutional law and its connections to the political system. For them, constitutional law is part of the more general field of derecho politico (literally translated, ‘political law’).115 Political law can be defined as the study of the juridical order and its relationship with society and political activity, and most political law treatises devote one or several sections to a discussion of the concept of constituent power.116 This presence might also be a result of the fact that liberal constitutionalism has not been as successful in Latin America as in places like Canada or the United States. Most Latin American countries have experienced several constitutional ruptures as a result of revolutions or

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coups followed by various episodes of constitution-making. Perhaps the everchanging constitutional history of these countries has made the political foundations of constitutional regimes, law as politics in its most crude manifestation, easier to appreciate. The presence of the theory of constituent power in the Latin American constitutional tradition is so strong that it is not uncommon to find references to it in judicial decisions.117 I will briefly consider below Opinion 138 of the Colombian Supreme Court of Justice, rendered in 1990.118 Although certainly not the most recent of the decisions that discuss and rely on the theory of constituent power in important ways, this opinion marked the beginning of an approach to constitutional change that has spread, in a radicalised form, to different Latin American countries. Like the decision from the Venezuelan Supreme Court of Justice (mentioned at the beginning of this chapter), Opinion 138 validated the convocation of a special constitution-making body, one not contemplated in the amendment rule of the established constitution. This judicial opinion, as well as the convocation of the National Constituent Assembly in 1990, took place in a volatile political context: an armed conflict that involved the military, guerrillas, paramilitary groups and drug cartels, and a strong popular mobilisation in favour of constitutional reform. Since the late 1970s there had been several failed attempts to modify the country’s constitutional framework, which was perceived by many as hostile to the incorporation of new political movements that represented interests different from those traditionally advanced by the Liberal and Conservative parties.119 A traditional liberal constitution, the Colombian Constitution of 1886, placed the power of constitutional reform in the hands of Congress, and excluded the possibility of convening an extraordinary assembly for the creation of a new fundamental law.120 Calls for the adoption of a new constitution through a constituent assembly reached their climax when a student movement was successful in its campaign for the informal introduction of a ‘seventh ballot’ (séptima papeleta) in the March 1990 congressional elections, through which voters could express their will to convene a Constituent Assembly for the modification of the Constitution of 1886. Although not legally binding, the expression in favour of the Constituent Assembly was so strong that President Virgilio Barco issued a Decree ordering that, during the presidential elections of May 1990, voters would be formally asked whether they wished to convene a Constitutional Assembly (the assembly was re-labelled ‘constitutional’ by government with the obvious objective of suggesting that its powers could be limited by law) to “revise the Political Constitution with the objective of strengthening participatory democracy”.121 More than 88 per cent of those participating in the election voted ‘yes’. Interestingly (particularly from a Schmittian perspective),122 it was the almost permanent state of exception present in Colombia that facilitated the issuing of that Decree and allowed the new government to establish the legal procedures that ended in the convocation of the Assembly.123

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In August 1990, the new President, Cesar Gaviria Trujillo, issued another Decree under the authority given to him by the state of exception,124 expressing that the Constitution of 1886 was no longer effective or adequate for dealing with the Colombian reality, and that several guerrillas had expressed their willingness to disarm if allowed to participate in a constitution-making process. The Decree also stated that the convocation of a Constitutional Assembly would allow different social movements, including those engaged in illegal protests, to participate in the creation of a constitution that would potentially recognise the rights and institutions they considered necessary for the country. Recognising that a great majority of voters had expressed in favour of the assembly in the May 1990 elections, the Decree established the process for its convocation: in December 1990, there would be a special election in which voters would be given the opportunity to elect the members of the assembly and approve the topics that the assembly could consider in its deliberations (the Decree included a long list of specific topics, such as revising the internal procedures of Congress and considering new human rights to be recognised by the constitution). In this last respect, the Decree expressed that “The Assembly may not consider themes different from the ones included in the list approved by the people.”125 In a Sieyesean fashion, the Decree expressed that “The members of the Assembly will represent the entire Nation and must vote consulting only justice and the common good.”126 The Constitution adopted by the Assembly would then be sent to the Supreme Court of Justice to determine if it was consistent with the set of topics approved by the citizenry in the special election. Also in a Sieyesean fashion, the new or reformed constitution would come into effect without the need of popular ratification. The Supreme Court of Justice was called to consider if President Gaviria’s Decree was consisted with Article 121 of the Constitution of 1886 (the emergency provision of the constitution). While determining that the Decree was by and large constitutional (as there was a clear connection between the declared state of exception and the objectives of the Decree), the Court declared invalid those sections of the Decree that sought to limit the power of the Assembly, affirming its ‘constituent’ rather than ‘constitutional’ character. According to the Court, the Assembly would represent that nation’s constituent power, which could not be subject to any limits: “Being the Nation the bearer of the original constituent power (constituyente primario) and having a sovereign character from which the other public powers emerges,” the Court expressed, “neither it is subject to any limits other than those imposed by itself, nor its acts can be revised by the constituted powers.” 127 The Court defined constituent power as a “moral and political potency”, possessing a “creative vigour” and capable of “setting the historical course of a state” and of “opening closed channels of expression”.128 Citing one of its own opinions from 1978, the Court stated that it was “the essence of the

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original constituent power to attribute competences”, and therefore its own competencies could not be limited.129 Accordingly, the Court declared invalid all the sections of the Decree that attempted to limit the power and scope of the Assembly’s decision-making power and that restricted “the full exercise of its sovereignty”. Interestingly, the Court expressed that because the general objective behind the convocation of the assembly was to “strengthen participatory democracy” (an objective that was ratified by voters in the May 1990 elections), the Assembly could not legitimately abandon it. The Court also declared valid those provisions that tended to guarantee the independence of the extraordinary body, such as the one that prohibited government officials being members of the assembly, which, according to the Court, would allow it to exercise its functions with full autonomy. In contrast with the Sieyesean view, the Court expressed that it was not appropriate to “accumulate in the same persons or entities such different functions” as administrating the state or adopting ordinary laws, and that of creating a new constitution.130 The assembly (now renamed Constituent Assembly) was eventually composed not only of members of the traditional parties, but also included representatives from various social movements and ex-guerrilla groups, and was convened in 1991. The constitution it adopted has been widely celebrated, and it included many of the proposals rejected by previous governments (such as the establishment of a Constitutional Court), a generous catalogue of civil, social and economic rights, as well as mechanisms for their protection.131 However, and as we will see in Chapter 7, subsequent governments have attempted to introduce to it a set of constitutional reforms that were not well received by several groups. This allowed the Colombian Constitutional Court to use the theory of constituent power in order to limit the power of constitutional reform of ordinary government (an idea that was proposed by Schmitt in his Constitutional Theory and that, as will be seen in Chapter 7, facilitates rather than hinders the realisation of democracy at the level of the fundamental laws). While the decision of the Colombian Supreme Court of Justice discussed above illustrates the presence of constituent power in the Latin American tradition, it only marks the beginning of what could become a truly democratic form of constitutionalism. But the full consideration of this idea will have to wait until later chapters.

Concluding remarks The theory of constituent power allows us to see some of the concepts and arguments discussed in previous chapters in a new light. This is particularly true with respect to the two dimensions of democracy. Looked at from the perspective of constituent power, one can say that democracy at the level of daily governance takes place in the juridical domain of the constituted powers. There, legislators, judges and executive officials play a central role in administrating the state through the adoption, interpretation and application of the

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ordinary laws that regulate the day-to-day lives of individuals. As constituted powers, these officials and the institutions they represent operate under the constitutional forms to which they owe their existence. Democracy at the level of the fundamental laws, on the other hand, belongs to the political domain of the constituent power. There, citizens exercise their sovereignty and deliberate and decide about important constitutional changes without being subject to any form of positive law. While rare and episodic, democracy at the level of the fundamental laws represents the moment(s) in which a constitutional regime can come closer to the exercise of the people’s constituent power. Constituent power also provides important insights with respect to the ways in which democracy is negated by the traditional conception of constitutionalism. A constitutional regime that operates according to that traditional conception approaches constituent power as a threat to the regime’s aspiration to permanency. If constituent power (as conceived by Sieyes and Schmitt) can be exercised at any moment after a constitution is in effect, it can only be consistent with a regime that remains permanently open to its own transformation or abolition. This, of course, raises many dangers that constitutionalists would be quick to point out: unstable constitutional orders, permanent revolutions, the abolition of fundamental rights and the elimination of any form of democratic governance. However, these dangers are heavily ameliorated by the fact that constituent power, as we will see in the next chapter, is par excellence a democratic concept that is inexorably accompanied by a determinate political objective: the creation of a constitution. In that sense, as the next chapter will argue, in virtue of its connections to the basic principles of democracy, the theory of constituent power can help us judge the democratic legitimacy of a constitution.

Notes 1 Reference re Secession of Quebec, [1998] 2 SCR 217. 2 Ibid., para 76. It is interesting to note here that the political representatives of the province of Quebec did not ‘consent’ to the 1982 constitutional changes (which among other things created a charter of rights and a new amending procedure). 3 Ibid., paras 77–78. 4 Fallo Núm. 17 of the Supreme Court of Justice of Venezuela, 19 January 1999. As the reader will note, this reasoning bears a striking similarity with several aspects of Akhil Reed Amar’s theory of constitutional change. Akhil Reed Amar, ‘The Consent of the Governed: Constitutional Amendment Outside Article V’, Columbia Law Review, 1994, vol 94, p 457. 5 See for example Richard S. Kay, ‘Constituent Authority’, American Journal of Comparative Law, 2011, vol 59, p 715; John Rawls, Political Liberalism, New York: Columbia University Press, 2005, p 231; Julie Mostov, Power, Process, and Popular Sovereignty, Philadelphia: Temple University Press, 1992. 6 For an early discussion of the similarities between Lawson and Locke, see A.H. Maclean, ‘George Lawson and John Locke’, Cambridge Historical Journal, 1947, vol 9, p 69.

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7 Andreas Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’, Constellations, 2005, vol 12(2), p 223. 8 Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt, Cambridge: Cambridge University Press, 2008, p 1. 9 George Lawson, Politica Sacra et Civilis, Cambridge: Cambridge University Press, 1992. 10 Julian H. Franklin, John Locke and the Theory of Sovereignty: Mixed Monarchy and the Right of Resistance in the Political Thought of the English Revolution, Cambridge: Cambridge University Press, 1978, p 69. 11 Lawson, Politica Sacra, p 22. 12 Lawson appears to have taken the distinction between personal and real majesty from Christopher Besold, De magistrate in genere (Strasburg, 1625). Nevertheless, Julian Franklin traces the origin of this distinction to Hermann Kirchner, Respublica (1608). Julian Franklin, ‘Sovereignty and the Mixed Constitution: Bodin and his Critics’, in J.H. Burns (ed), The Cambridge history of Political Thought, 1450–1700, Cambridge: Cambridge University Press, 1991, p 316. 13 Lawson, Politica Sacra, p 47. 14 Ibid. 15 Ibid. 16 Ibid. As the reader may note, Lawson’s distinction between personal and real majesty is similar to that between democratic governance and democracy at the level of the fundamental laws (discussed in Chapter 3). 17 Ibid. 18 Ibid. (Emphasis added.) 19 Ibid., p 52. 20 Ibid., p 50. The distinction here between ‘multitude’ and ‘community’ is strongly reminiscent of Hobbes. 21 Ibid., p 69. 22 Ibid., p 68. See also Franklin, John Locke and the Theory of Sovereignty, p 72. 23 Lawson, Politica Sacra, p 69. 24 Ibid. 25 Ibid., p 48. 26 Ibid., p 107 27 Ibid. This idea comes close to the reasoning behind the doctrine of unconstitutional constitutional amendments, which will be discussed in Chapter 7. 28 Ibid. 29 Ibid., p 47. 30 John Locke, Two Treatises of Government, New York: Hafner Publishing Company, 195, p 232, para 220. 31 Ibid., p 196, para 149. 32 Ibid., p 187, para 133. 33 Ibid., p 184, para 123. 34 Ibid., p 233, para 222. Unlike Hobbes, who thought that any form of order, however oppressive, was superior to the state of nature, Locke considered that it was better to live in the state of nature than under a form of government that transgressed the conditions of the social contract. Ibid., p 127, paras 114, 191. 35 Ibid., p 235, para 225. 36 Franklin, John Locke and the Theory of Sovereignty, p 95. 37 Locke, Two Treatises of Government, p 233, para 221. 38 Ibid., p 193, para 141. 39 Ibid., p 235, paras 225, 233, 222. 40 Ibid., p 197, para 155. 41 Declaration of Independence (1776). 42 Ibid.

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43 Locke, Two Treatises of Government, p 197, para 149. As Carl Friedrich has noted: “. . . Locke’s juridical statement contains a kernel of two important generalisations: (1) there tends to exist a residuary and unorganised power of resistance in the community which seeks to restrain the government, and (2) this constituent power can only come to play when government fails to function.” Carl Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America, New York: Blaisdell Publishing Company, 1950, p 130. 44 Locke, Two Treatises of Government, p 246, para 243. 45 Ibid., p 245, para 240. This passage might be taken to suggest that, after all, for Locke it is the people who decide whether a certain situation merits the dissolution of government, and therefore justifies the exercise of the power to create a new constitutional order. A similar view can be identified in Lawson, who wrote that “[a]s the community hath the power of constitution, so it hath of dissolution, when there shall be a just and necessary cause”. Lawson, Politica Sacra, p 47. Such an interpretation would give force to the idea that Locke and Lawson were advancing a theory of constituent power and not merely a defence of the right of resistance. However, the very idea of the need to justify the exercise to create a new government with reference to certain abuses on the part of the legislative and executive powers, certainly signals a fundamental distinction between Locke’s and Lawson’s approaches and the theory of constituent power advanced by Sieyes and Schmitt. 46 Franklin, John Locke and the Theory of Sovereignty, p 123. 47 Locke, Two Treatises of Government, pp 235–240, paras 224–233. 48 Ibid., p 235, para 225. 49 Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America, New York: Norton, 1988, p 43. See also Mostov, Power, Process, and Popular Sovereignty, p 60. 50 Emmanuel Joseph Sieyes, What is the Third Estate?, New York: Praeger, 1963. In his Memoirs, Marquis de La Fayette placed the origins of the concept of constituent power in the American constitutional tradition, and rejected the idea that Sieyes was the creator of the distinction between constituent and constituted powers. For a discussion, see Raymond Carré de Malberg, Teoría General del Estado, Fondo de Cultura Económica, 1948. In fact, the phrase ‘constituent power’ was used by Thomas Young in a letter to the citizens of Vermont, where he wrote: “For my own part, I esteem the people at large the true proprietors of governmental power. They are the supreme constituent power and, of course, their immediate representatives are the supreme delegate power; and as soon as the delegate power gets too far out of the hands of the constituent power, a tyranny is in some degree established.” ‘Dr. Young’s Letter to the Inhabitants of Vermont, a Free and Independent State, Bounding on the River Connecticut and Lake Champlain’ (Philadelphia, April 1977). It is not entirely clear, however, if Young is using the term ‘constituent power’ as an unlimited power to create constitutions, or using it to refer to the general idea that representatives should act according to the will of those they represent. There are also some uses of the term ‘constituent power’ in early eighteenth-century England. See for example, ‘On the Independence of Parliament’, in The London Magazine, 1734, vol 3, p 462. 51 Sieyes, What is the Third Estate?, p 58. 52 Ibid., p 122. 53 Ibid., pp 123–124. 54 Ibid., p 124. 55 Ibid., p 130. 56 Ibid. 57 Ibid., p 126. 58 Ibid., p 128. 59 Ibid.

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76 77 78 79 80 81

82 83 84 85 86 87

The theory (and practice) of constituent power Ibid., p 134. Ibid., p 126. Ibid., p 130. Ibid., p 131. Ibid. Ibid. Ibid., pp 131–132. Ibid., p 132. Malberg, Teoría General del Estado, p 1165. Quoted in Lucien Jaume, ‘Constituent Power in France: The Revolution and its Consequences’, in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form, Oxford: Oxford University Press, 2007, p 80. That is to say, Sieyes thought that democracy and representation were incompatibl: where representation was necessary, like in France, there could not be a democracy: “ ‘No aristrocracy’ ought to become a kind of rallying-cry for all the friends of the nation and good order. The aristocrats will think that they can resort by crying: ‘No democracy’. But we will repeat ‘No democracy’ with them and against them. These gentlemen do not realize that representatives are not democrats; that since real democracy is impossible amongst such a large population, it is foolish to presume it or to appear to fear it . . .” Sieyes, What is the Third Estate?, p 196, n gg. Carl Schmitt, Constitutional Theory, Durham: Duke University Press, 2008. Ibid., p 125. Ibid., pp 76–77. Ibid., p 151. In the English translation of Constitutional Theory, ‘constituent power’ (verfassungsgebenden Gewalt) was translated as ‘constitution-making power’. For the sake of consistency, I will replace the phrase ‘constitution-making power’ with ‘constituent power’ (always in square brackets) when quoting directly from the English translation. Ibid., p 125. Ibid. William E. Scheuerman, ‘Revolutions and Constitutions’, in David Dyzenhaus (ed), Law as Politics: Carl Schmitt’s Critique of Liberalism, Durham: Duke University Press, 1998, p 257. Schmitt, Constitutional Theory, pp 112, 76. Ibid., pp 126–127. Ibid., p 132. This does not mean that Schmitt welcomed frequent exercises of constituent power. Like Sieyes, he considered stability and order of fundamental importance. And, in fact, part of his critique of liberalism was due to its alleged failure to guarantee stability by failing to make the ‘crucial’ distinction between friend and enemy. See Carl Schmitt, The Concept of the Political, Chicago: University of Chicago Press, 1996. For an illuminating discussion, see David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar, Oxford: Oxford University Press, 2003, p 97. Schmitt, Constitutional Theory, pp 132, 138. Ibid., pp 132, 141. I will come back to this point in Chapter 9. Ibid. Ibid., p 110. Ibid., p 128. It is in his Constitutional Theory where Schmitt, shifting away from the monarchical view he seemed to maintain in his Political Theology, designated the people as a legitimate subject of constituent power. See Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, Cambridge: MIT Press, 1985.

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88 Schmitt, Constitutional Theory, p 128. 89 Ibid., p 128. 90 Andrew Arato, ‘Forms of Constitution Making and Theories of Democracy’, Cardozo Law Review, 1995, vol 17, p 203. 91 Andreas Kalyvas, Democracy and the Politics of the Extraordinary, pp 116–117, 155. 92 Schmitt, Constitutional Theory, p 131. 93 Ulrich K. Preuss, ‘Constitutional Power Making for the New Polity: Some Deliberations on the Relations Between Constituent Power and the Constitution’, Cardozo Law Review, 1993, vol 14, p 652. 94 Examples of this include South Africa, in which a Constitutional Court reviewed the decisions of the constitution-making body (see In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) and In re Certification of the Amendment text of the Constitution of the Republic of South Africa, 1996 1997 (2) SA 97 (CC)), and Puerto Rico, in which the United States conditioned the validity of the Constitution of 1952 to the inclusion of certain provisions (and the exclusion of others). See José Trías Monge, Historia Constitucional de Puerto Rico, Volumen III, Editorial de la Universidad de Puerto Rico, San Juan, 1982. 95 The cases of Iraq and Afghanistan are instructive in this respect. See Andrew Arato Constitution Making Under Occupation: The Politics of Imposed Revolution in Iraq, New York: Columbia University Press, 2009 and Noah Feldman ‘Imposed Constitutionalism’, Connecticut Law Review, 2004, vol 27, p 857. 96 The paradigmatic example here would be the United States, but a more recent example is provided by Canada, which in the 1980s engaged in a process of constitutional change driven from the top down and in which the participation of citizens was limited to occasional consultation in committees that lacked decisionmaking power. See Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People?, Toronto: Toronto University Press, 2004. 97 For recent examples see the essays in The Paradox of Constitutionalism. 98 Alexis de Tocqueville, Democracy in America, New York: New American Library, 1956, p 74. 99 A.V. Dicey, Introduction to the Study of the Law and the Constitution, London: Macmillan, 1959. 100 Ibid., pp 36–37. 101 Ibid., p 37. The idea that Parliament has both ‘constituent’ and ‘legislative’ powers is present in the work of some contemporary defenders of the doctrine of parliamentary sovereignty. For example, Jeffrey Goldsworthy writes: “Parliament can be said to have constituent power to change every part of the unwritten constitution except, arguably, that which grants its own law-making authority.” Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates, Cambridge: Cambridge University Press, 2010, p 111. 102 See for example E.W. Thomas, ‘The Relationship of Parliament and the Courts: A Tentative Thought or Two for the New Millennium’, Victoria University of Wellington Law Review, 2000, vol 31, pp 21–23; R.A. Edwards, ‘Bonham’s Case: The Ghost that Runs the Constitutional Machine’, Denning Law Journal, 1996, vol 11, p 74. 103 Edmund S. Morgan, Inventing the People, p. 50. 104 Dicey, Introduction to the Study of the Law and the Constitution, p 38. 105 A.V. Dicey, ‘The Referendum’, National Review, 1894, vol 23, pp 70, 76. The idea of the electorate as the true sovereign also appears in the Introduction to the 8th edition of Introduction to the Study of the Law and the Constitution, written 30 years after the first edition was first published. Dicey Introduction to the Study of the Law and the Constitution, p lxvii.

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106 The relevant part of the opening lines of What is the Third Estate? reads as follows: “What is the Third Estate? Everything. What has it been until now in the political order? Nothing”. Sieyes, What is the Third Estate?, p 51. For Sieyes, the Third Estate was to be understood as the true representative of the Nation: at 58. 107 Dicey, ‘The Referendum’, p 69. 108 Ibid. 109 For an analysis of the development of this aspect of Dicey’s thought, see Rivka Weill, ‘Dicey Was Not Diceyan’, Cambridge Law Journal, 2003, vol 62, p 480. 110 On this point, see Vernon Bogdanor, The New British Constitution, Oxford: Hart Publishing, 2009. 111 Dietrich Conrad, ‘Limitation of Amendment Procedures and the Constituent Power’, Indian Year Book of International Affairs, 1966–1967, vols 15–16, p 405. 112 Martin Loughlin, ‘Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice’, in The Paradox of Constitutionalism, p 27. Martin Loughlin argues that, although absent from contemporary British constitutional thought, constituent power emerged during discussions during the constitutional conflicts of the seventeenth century. Loughlin, however, seems to identify constituent power with Lawson’s and Locke’s theories of resistance (discussed in the first section of this chapter). In the twentieth century, Britain did not show much sympathy for ‘constituent assemblies’ either. See Moore v Attorney-General for the Irish Free State [1935] AC 484. 113 For a discussion, see Jason Frank, Constituent Moments: Enacting the People in Postrevolutionary America, Durham: Duke University Press, 2010; Christian G. Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War, Cambridge: Cambridge University Press, 2008. 114 See Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’, p 414. 115 Rodrigo Borja, Derecho Político y Constitutional, México: Fondo de Cultura Económica, 1991, p 303. 116 See for example Patricio Colombo Murúa, Curso de Derecho Político, Buenos Aires: Abeledo-Perrot, 2000; Rodrigo Borja, Derecho Político y Constitutional; Carlos Fayt, Derecho Político, Buenos Aires: Ediciones Ghersi, 1982; Germán José Bidart Campos, Derecho Político, Buenos Aires: Aguilar, 1967; Luis Sanchez Agesta, Lecciones de Derecho Político, Granada, Librería Prieto, 1959. René Boggio, Manual Elemental de Derecho Político, Lima: Editorial Biblioteca de Derecho y Ciencias Sociales, 1948. 117 Chapter 7 will discuss some of these decisions. For a more detailed discussion, see Joel I. Colón-Ríos, ‘Carl Schmitt and Constituent Power in Latin American Courts’, Constellations, 2011, vol 18(3). 118 Opinion No. 138, 9 November 1990. 119 Renata Segura and Ana María Bejarano, ‘!Ni una Asamblea Más Sin Nosotros! Exclusion, Inclusion, and the Politics of Constitution-Making in the Andes’, Constellations, 2004, vol 11, p 220. 120 Constitución Política de Colombia de 1886, Article 209. As noted above, the decision of the Venezuelan Supreme Court of Justice, briefly discussed in the introduction, dealt with a very similar issue. Interestingly, the Supreme Court of Pennsylvania confronted a similar set of facts in 1874. See Wood’s Appeal, 75 Pa 59 (1874). 121 Decree 927 of 1990, 3 May. Quoting a 1987 decision of the Colombian Supreme Court of Justice, the Decree stated that the “Constituent Nation” has full autonomy to make any decisions “respecting its fundamental juridical structure”.

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122 For a discussion of the relationship between states of exception and constituent power, see Kalyvas, Democracy and the Politics of the Extraordinary, p 119. For Kalyvas: “The exception, besides designating the juridical declaration of an emergency situation, is the condition of possibility of sovereignty and extraordinary politics, not its essence. It is only in the moment of an organic crisis, to use Gramsci’s term, where the closure of the social explodes to bring about a displacement among its different structural levels, including the legal system, that there is the possibility for an imminent radical change in the political organisation of society. I take Schmitt’s reference to the exception as describing also this moment of crisis, this openness and contingency that provides the available space for the reactivation of the constituent power, which up to this moment remained in a dormant and subterranean form.” Ibid. 123 Decree No. 1038 of 1984 declared a state of exception in the entire national territory. In fact, by 1990, the country had lived 37 of the previous 42 years under a declared state of exception. See Eduardo Cifuentes Muñoz, ‘Los Estados de Excepción Constitucional en Colombia’, Ius et Praxis, 2002, vol 8(1), p 117. 124 Decree No. 1926 of 24 August 1990. 125 Ibid. The Decree also established the electoral system to be used: the assembly would be composed of 70 members elected by universal suffrage in a single national district, and those currently occupying a governmental position could not be candidates (and those elected to the assembly could not run for office in the 1992 or 1994 elections). Moreover, two seats would be reserved for demobilised guerrillas (a number that could be increased if other groups expressed their willingness to disarm and participate in the process). 126 Ibid. 127 Opinion 138. 128 Ibid. 129 Ibid. 130 Ibid. 131 See also Gonzalo Ramírez Cleves, Límites a la Reforma Constitucional en Colombia: El Concepto de Constitución como Fundamento de la Restricción, Bogotá: Universidad Externado de Colombia, 2005, p 442. In fact, the Colombian Constitution of 1991 has become a fundamental tool for the left, giving place to the curious situation that the left tends to defend the established constitutional regime, and the conservatives to challenge it from government. See Cesar Rodríguez Garavito, ‘La Nueva Izquierda Colombiana: Orígenes, Características y Perspectivas’, in Cesar Rodríguez Garavito, Patrick Barret and Daniel Chavez (eds), La Nueva Izquierda en América Latina, Bogotá: Grupo Editorial Norma, 2005, p 196.

6

The idea of democratic legitimacy

Constituent power, it has been suggested in previous chapters, has an important connection with the democratic ideal. In its modern and contemporary formulations, constituent power is attributed to the nation, the people or the community; in short, to all those who will become subject to the future constitutional regime. Constituent power points toward a democratic constitution-making power, and its popular and collective character makes it incompatible with given or imposed constitutions. This is why, paraphrasing Antonio Negri, to talk about democracy at the level of the fundamental laws – about popular sovereignty in the context of constitutional change – is to talk about constituent power.1 Not surprisingly, constituent power has traditionally been associated by constitutionalists with instability and the risk of political revolution. A multitude always getting what it wants, continually making and unmaking laws, represents the antithesis of good government; the rule of people’s ever-changing wishes against the empire of law and reason. As we saw in the previous chapter, since constituent power is about creating new constitutions without being subject to any form of positive law, constitutionalists’ fears are exponentially heightened. Nevertheless, as a result of its connections to the basic principles of democracy, constituent power can provide us with a way of assessing the democratic legitimacy of a constitutional regime. The chapter is organised in the following way. It begins by exploring the idea of legitimacy and distinguishing it from the related concepts of authority and justification. The conception of legitimacy that will emerge from that analysis will be highly procedural, but will not be able to assist us in identifying the specific procedures that must be present for the relevant institution (in our case a constitutional regime) to be considered legitimate. The chapter then proposes to fill that normative vacuum with the theory of constituent power. A conception of legitimacy centred on the theory of constituent power, however, might be seen as inevitably accompanied by an uncontrollable constitution-maker that may be tempted to abolish democracy or to perpetuate itself. In response to these fears, this chapter will argue that in virtue of its connections to the basic principles of democracy and its finality of

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establishing a new constitution, the exercise of constituent power should not be seen as a disaster waiting to happen. Far from being an uncontrolled power to destroy and create constitutions at will, constituent power carries with it important limitations: it must be exercised through a procedure that comes as close as possible to the idea of a people giving itself a constitution, and it must end in the adoption of a constitution that guarantees the conditions for its future exercise (conditions that promote respect for those rights and institutions that are necessary for an exercise of constituent power to take place). Finally, the chapter discusses the specific demands imposed by democratic legitimacy on a constitutional regime. It will be maintained that a democratically legitimate constitutional regime, one that citizens could genuinely see as theirs, should have been created through an open and participatory process, and must be subject to democratic re-constitution. That is, it must provide an opening, a means of egress, for constituent power to manifest from time to time. Although a constitutional regime that meets both of these requirements will certainly have a stronger claim to democratic legitimacy than one that only meets the second one, it will be argued that it is in the possibility to future exercises of constituent power where the basic condition of democratic legitimacy lies.

The idea of legitimacy It is rarely clear what is meant when someone says that the exercise of political power by some human beings over others is legitimate. In fact, as David Beetham has argued, the meaning of the term legitimacy usually depends on the training of the academic who is speaking or writing: whether she is a lawyer, a social scientist or a philosopher will have an important impact on her approach to the question of what constitutes legitimate political power.2 For instance, lawyers are traditionally concerned with how legal rules are posited, revised and enforced. For them, a legitimate political power is one acquired and exercised according to established law; in their view, says Beetham, legitimacy is equivalent to legal validity.3 This kind of approach is reminiscent of (though not identical to) Hans Kelsen’s pure theory of law. According to the pure theory, the question of legitimacy is only relevant if understood in terms of legal validity.4 A legitimate constitution is thus one that has been adopted in the manner prescribed by a superior norm (e.g., the amendment rule of the previously valid constitution). Questions such as: ‘What is the content of the laws?’ ‘Who posits them and how?’, which are fundamental to other conceptions of legitimacy, simply do not figure under the pure theory.5 Social scientists have a very different approach to legitimacy. The social scientist is not normally interested in questions of legal validity, but in looking at the extent to which those who exercise political power can count on the obedience of those subordinate to them.6 Social scientists are not concerned with the idea of legitimacy in universal or normative terms. Their objective is to show how legitimacy affects power relations in particular societies. By

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trying to stand back from their own values and beliefs (e.g., from their idea of what would amount to a ‘truly’ legitimate political power according to some set of normative criteria), they aim to discover what is actually believed in the society they are studying. Beetham sees this approach exemplified in Max Weber’s conception of legitimacy as the belief in legitimacy of the relevant social agents.7 In this vision, power relations are legitimate when “those involved in them, subordinate as well as dominant, believe them to be so”.8 Such an approach would consider a constitution legitimate if both officials and citizens believe it to be legitimate (regardless of the causes of that belief).9 For the social scientist, to say that a determinate political power is legitimate is to make a report, to describe the beliefs of a particular group of human beings. The question of legitimacy does not involve a juridical assessment of how a regime came into being, but an empirical judgment.10 Beetham distinguishes the approaches of the lawyer and of the social scientist from that of the philosopher.11 Moral and political philosophers are usually not interested in legal validity or in the actual beliefs of those involved in a relation of power. They are concerned with the question of how political power ought to be arranged.12 For them, political power is legitimate when its rules can be justified according to normative principles with which any rational and unbiased person would agree to. What is legitimate to the philosopher “is what is morally justifiable or rightful; legitimacy entails the moral justifiability of power relations”.13 This approach is exemplified in the political philosophy of John Rawls, who attempts to show how the idea of justice can guide the establishment of a just constitution.14 Consistent with Beetham’s depiction of the philosophical approach, Rawls expresses his conception of legitimacy in terms of what is justifiable to citizens: “As we have said, on matters of constitutional essentials and basic justice, the basic structure and its public policies are to be justifiable to all citizens, as the principle of political legitimacy requires.”15 In this sense, the project of those engaged in the philosophical approach is that of elucidating the general principles according to which political power may be justified.16 These three approaches to the question of legitimacy are different from the one that I will defend in this chapter.17 This chapter is about democratic legitimacy, not about what we may call ‘legitimacy as such’. These accounts are useful, however, because they throw light on the ways in which the ‘legitimacy’ aspect of ‘democratic legitimacy’ has been treated from different academic perspectives. But in order to fully explain the way in which the concept of legitimacy is used in this book, some further clarifications are needed. Accordingly, in what follows I distinguish the idea of legitimacy from two other concepts that, although related to legitimacy in important ways, are sometimes used interchangeably. The first of these concepts is that of justification. There is, of course, no single way of distinguishing between justification and legitimacy, and it is not necessary to undertake a comparative review of different understandings of these concepts.18 Instead, I propose to examine one influential account of this distinction, and build from there. The

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view that I have in mind is that of A.J. Simmons, and I will briefly outline its main points as a way of introducing the discussion.19 Simmons is particularly interested in the legitimacy and justification of the state. Under his view, legitimacy and justification provide different dimensions of institutional evaluation and involve different kinds of arguments: to legitimise a state, one must show that it has a special relationship with its citizens that gives it a right to rule over them; to justify the state, one must show that some realisable type of state is preferable to any (feasible) non-state alternative.20 If the distinction between legitimacy and justification collapses, Simmons argues, political philosophers would be robbed of one important mode of institutional evaluation. Simmons finds the model for the kind of distinction that he is trying to advance in the work of John Locke.21 In Locke’s political philosophy, political power is legitimate only if subjects have freely consented to it and if it is continuously exercised within the terms of those subjects’ consent. The legitimacy of particular states lies in the actual history of that state’s relationship with its subjects: if the subjects freely consented to the exercise of state power, their state is a legitimate one; if they did not, then they live in an illegitimate state.22 Nevertheless, when Locke advances his argument in favour of the preferability of the limited state (the state ruled by limited government) over life in the state on nature, he does not rely on consent theory (but on the idea that leaving the state of nature and creating a state would allow for a superior protection of individuals’ lives, liberties and estates).23 In other words, the fact that it is good to live in a state might be enough reason to support it, but does not create a duty to obey its dicta. What Simmons wants to take from Locke is that the considerations that serve to justify the state (which make it preferable to life in the state of nature) cannot by themselves legitimise it.24 In this way, Locke captures the distinction between legitimation and justification: “[T]he Lockean, I take it, wants to say the following: the general quality or virtues of a state (i.e., those features of it appealed to in its justification) are one thing; the nature of its rights over any particular subject (i.e., that in which its legitimacy with respect to that subject consists) are quite another thing.”25 That the limited state is justified does not say anything about its legitimacy. Justification is about demonstrating that the state is, on balance, a good thing; legitimation about showing that the state has the kind of relationship with its citizens that gives it the right to require their obedience. Simmons contrasts this approach with one that finds in the justification of the state the very conditions of its legitimacy. He identifies this view in Immanuel Kant and his followers. Kantians use the same kinds of arguments in attempting to justify the state as in demonstrating its legitimacy. Accordingly, they think of institutional evaluation in terms of what ought to be chosen by people and not in terms of their actual choices.26 Under their approach, the actual historical relation between the state and its citizens is irrelevant, and a state that can be rationally justified enjoys political legitimacy.27

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In distinguishing between legitimacy and justification, Simmons associates the idea of legitimacy with the ways in which the state arises. In his view, citizens have to do something before the juridical apparatus that governs them can be legitimated. Because he is committed to political voluntarism, for Simmons this ‘something’ must refer to the actual consent of individuals (a condition that Simmons, the philosophical anarchist, maintains is not met by any modern state).28 Although for reasons that will soon become clear, I do not entirely subscribe to Simmons’ conception of legitimacy, I believe that it has certain advantages over the Kantian approach. That approach (as the one identified earlier as the ‘philosophical approach’) treats legitimacy and justification as being the same things. Nevertheless, while Simmons’ conception gives us valuable insights into the distinction between justification and legitimacy, it does so at the price of identifying legitimacy with the idea of authority.29 For Simmons, a state’s legitimacy gives it the exclusive right to impose duties on subjects through legally binding directives and to coerce those who refuse to comply with them.30 This right to rule and the correlative duty to obey is what political philosophers have traditionally referred to by the term ‘authority’.31 Authority and legitimacy, in my view, should be understood as different (although closely related) concepts.32 That is to say, from the idea that a juridical order is legitimate, it does not necessarily follow that citizens have an obligation to obey the law. It is true that there might be conceptions of authority that say: every legitimate state has a right to rule and to be obeyed.33 And it is also true that Simmons’ looks like one of those conceptions. But those are conceptions of authority that make a state’s authority dependent on its legitimacy, not conceptions of legitimacy. It is not surprising that authority is usually conceived of as involving legitimacy: the argument that an illegitimate power could have the right to be obeyed is unpopular for good reasons. Nevertheless, from this does not follow that those subject to a legitimate power have a moral duty to obey it; that is a separate idea.34 In that respect, it may be said that authority entails legitimacy, but not the other way around.35 Legitimacy, as Simmons maintains, is about whether the way in which the state arose is considered the correct one according to some external criteria. However, whether or not those subjects are obliged to obey the laws that emanate from that political power is a different matter; it is a matter of the lawgiver’s authority (which might in turn depend on other considerations). In this section I have distinguished between the concepts of justification, authority, and legitimacy, and maintained that these three concepts, when applied to the exercise of political power, should be conceived in the following way: (a) Justification: to say that a state is justified is to say something positive about it, to suggest that it is better to have that type of state than to live in a non-state situation; (b) Authority: to say that a state enjoys authority is to say that it possesses the right to rule and to be obeyed by those within the scope of its power; (c) Legitimacy: to say that a state is legitimate is to say something about the ways it arose, about its pedigree. My principal objective has been to

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make clear that when I talk about legitimacy, I am neither making any claims about the advantages of having a state nor attempting to demonstrate that people have a moral obligation to obey the state’s directives. Legitimacy does not point toward the moral qualities of the institutions that are being assessed (in my analysis, constitutional regimes) or to their right to rule: it points to the way in which those institutions were created, and (as I will argue shortly), when combined with democracy, to the ways in which they can be altered.

Towards a conception of democratic legitimacy In the context of democratic legitimacy, which is the modality of legitimacy that interests me here, the distinction between legitimacy and authority is even more important.36 Notice that in Simmons’ approach, the link between the concepts of legitimacy and authority is a result of his strategy of connecting legitimacy with the idea of consent. Consent theory is about trying to explain the authority of the state and its basic idea is that those who wield political power over other human beings have the right to be obeyed only if the latter have freely consented to their authority.37 Democratic theory, in contrast, does not provide (and does not attempt to provide) an explanation of the state’s authority. In fact, democracy does not even involve the idea that citizens have a moral obligation to obey the law. What democracy requires is the equal participation of citizens in the positing of the laws and institutions that govern them (not merely their consent to the establishment of a political community).38 By virtue of that participation, citizens would have good reasons to take compliance with laws seriously as they resulted from procedures that expressed a commitment to their political equality.39 But if these laws (even if they were the result of a democratic process) involve serious violations of democratic principles (e.g., disenfranchising a segment of the population or establishing a dictatorship through popular vote), those that disagree with them would have a good reason to consider disobedience.40 But the idea of legitimacy that I subscribe to is similar to that advanced by Simmons in the sense that it partly looks for the legitimacy of a constitutional regime in the way that it arose, or, as he puts it, in the kind of historical relationship that it has with its citizens. It is also ‘procedural’ in a similar way to Jeremy Waldron’s approach to the legitimacy of political decisions: to ask whether a decision is legitimate is to ask whether it was taken according to the right procedures.41 As I will argue later, this does not mean that substance is irrelevant for the question of legitimacy: if the conditions that allow for the continuing legitimacy of a constitutional regime are abolished, its claims to legitimacy are immediately put into question, regardless of the ways in which such abolition took place. Nevertheless, my conception of legitimacy differs from each of the three approaches considered in the previous section: it does not provide enough tools to adequately differentiate the legitimate from the illegitimate.

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Each of the approaches considered in the first section provides (at least in theory) a straightforward test for assessing the legitimacy of political power. According to the legal approach, political power is legitimate if it is acquired and exercised according to established law (no matter the content of that law). Here, the test of legitimacy requires an exercise in juristic interpretation: if power was acquired and exercised legally, it is legitimate (valid). The social science approach demands that those involved in power relations believe them to be legitimate. Here, the test of legitimacy requires us to engage in an exercise in sociology: if the relevant group of human beings believes in the legitimacy of their political system, then the system is legitimate (believed to be legitimate). Lastly, the philosophical approach maintains that political power is legitimate where its basic structure would be favoured by every rational and unbiased person. Here, the test of legitimacy requires an exercise in reason: if a political structure can be rationally justified, then it is legitimate (justifiable). As noted above, the conception of legitimacy presented here associates the legitimacy of laws and institutions with the ways through which they come into existence (and, as we will see later, with the ways they can be changed) but, unlike the previous approaches it does not tell us which ‘ways’ are the right ones. That is to say, it does not tell us what processes, what type of ‘historical relations’, are the preferred ones. It provides us neither with a ‘test’ of legitimacy nor with a conception of legitimacy that, like Simmons’, comes accompanied by a theory about what must happen for the relevant institution to be legitimate (in Simmons’ approach that role is played by consent theory). In that respect, it is a conception of legitimacy that needs to be supplemented with some external criteria: it has a void that must be filled with a theory that can tell us how to differentiate between the right and the wrong ways of constitution-making. That void can initially be filled with democracy; that is to say, to talk about ‘democratic legitimacy’ rather than about ‘legitimacy’ as such.42 The idea of democratic legitimacy can take us a long way to determining what kind of procedures are the right ones. At the very least, it suggests that for a constitutional regime to be considered legitimate from a democratic perspective, its constitution must be created through democratic procedures: procedures that are consistent with the principles of popular participation and democratic openness (discussed in Chapter 4). Under this view, a constitutional regime which has been created through a process in which ordinary citizens are free to propose, deliberate and decide about the content of the constitution is certainly more likely to be considered democratically legitimate than a constitutional regime that has been implemented by a foreign power or a military elite. However, the manner in which a constitutional regime arises – its democratic pedigree – cannot be enough to satisfy the demands imposed by the democratic ideal. Democratic legitimacy, unlike a conception of legitimacy based on consent theory, cannot merely look to the past of the constitutional regime (i.e., to the historical relation it has with the citizens who live under it), but it must also look toward its potential

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future. A participatory and open constitution-making episode is, in that sense, only part of a democratically legitimate constitutional regime: the constitution must also remain permanently open to fundamental constitutional change; that is, to the future exercise of constituent power. In fact, I believe that in virtue of its connections to the democratic ideal (and, as a result, to the principles of democratic openness and popular participation), constituent power can help us judge the democratic legitimacy of a constitutional regime. First, as argued in Chapter 5, constituent power is not about a one-time constitution-making event: the people, as constituent subject, may engage in important constitutional transformations whenever they consider it necessary. Second, constituent power requires that those transformations can be understood as having been made by the people, and that means that they must take place through highly participatory procedures. When assessed from the perspective of constituent power, the democratic legitimacy of a constitutional regime would thus depend on: (a) whether the constitution has a democratic pedigree (i.e., whether it was created through an open and participatory process); and (b) whether it is susceptible to re-constitution (or, what is the same thing, to future exercises of constituent power). Only a constitutional regime that does not see the people’s constituent power as a threat can meet these requirements. Granted, a conception of democratic legitimacy that rests on the theory of constituent power, that seeks to leave the door open for constituent power to manifest from time to time, might be seen to be accompanied by necessary and serious risks. As noted earlier, the exercise of constituent power has been traditionally seen as a threat to both democracy and constitutions. There is something to the fears associated with constituent power, for constituent power (as well as democracy) has frequently been invoked by dictators and despots. The most famous example are probably the words attributed to Napoleon Bonaparte, “je suis le pouvoir constituent”,43 but there are also more recent situations in which a dictatorship has declared itself the bearer of the constituent power (as in Chile under Pinochet, and Spain under Franco).44 Moreover, France, where the theory of constituent power was first developed, experienced a wave of constitution-making during the eighteenth century that culminated in dictatorship, and in Latin America, where constituent power has long been part of the constitutional tradition, one can identify numerous constitutional breaks followed by constitution-making episodes (and, literally, hundreds of constitutions). Before considering in more detail the two criteria mentioned before, it is thus necessary to defend the theory of constituent power from these possible critiques.

Democratic legitimacy and the risks of constituent power It should come as no surprise that some authors have depicted the exercise of constituent power as lawless and arbitrary, as incapable of creating a constitution or unable to resist the temptation of perpetuating itself.45 For instance, in

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the sequel to We the People, Bruce Ackerman identifies constituent power as an arbitrary will that manifests itself in acts of upheaval in which “law ends, and pure politics (or war) begins”.46 A group of human beings engaged in the exercise of constituent power shows no respect for the established constitutional forms; such a group is simply putting into practice the (frequently violent) ‘right of revolution’, to use Carl Friedrich’s formulation.47 Interestingly, Ackerman’s recommended constitutional politics do not involve the “sheer acts of will”48 that allegedly characterise constituent power: even though Ackerman’s revolutionaries (the Founding Federalists, the Reconstruction Republicans and the New Deal Democrats) failed to follow the established rules for constitutional change and in that sense engaged in constituent activity, they “experienced powerful institutional constraints on their revisionary authority”, as they created new, higher laws without entirely repudiating the previous constitutional order and tradition.49 Decades earlier, Hannah Arendt voiced similar concerns, seeing in the theory of constituent power the potential of a perpetual revolution that would make impossible the establishment of a firm republic.50 Any structure built on the ever-changing will of the multitude as its foundation, she wrote, “is built on quicksand”.51 If one attempts to create a constitutional regime that institutionalises these concerns, one would probably end up with a highly constitutionalist conception of constitutional change: one that may point to the people as the source of all power, but that fails to provide them with an actual constitution-making ability. Even though such a conception would be highly inconsistent with what has been identified in Chapter 3 as democracy at the level of the fundamental laws, the critiques of arbitrariness and lawlessness must be taken seriously. They alert us to the possibility that an exercise of constituent power, instead of being a participatory constitution-making process that ends in the adoption of a democratic constitution, empowers an individual or an elite to establish an autocratic regime, or results in a set of political acts that fail to produce a constitution altogether. The most powerful response to these critiques emerges from constituent power’s relationship with democracy. Constituent power points towards a self-determining demos, a popular sovereign that adopts the laws which will govern its polity. In that respect, constituent power is much more than an absolute or arbitrary power to replace one constitution with another, as Ackerman’s analysis suggests. Rather, constituent power is the power of those living under a constitutional regime to reformulate its content democratically, free from any restrictions found in positive law. In fact, the very meaning of the term of constituent power suggests that a constitution must be jointly made. As Andreas Kalyvas has explained, the term constituere, which is formed by the prefix con (‘with’, ‘together’) and the suffix statuere (‘to set up’, ‘to construct’, ‘to place’), literally means “the act of founding together, founding in concert, creating jointly, or co-establishing”.52 “The correct use of the term ‘to constitute’,” Kalyvas continues, “prescribes that if one wants to constitute a new constitution, for example, one ought to coinstitute it, to institute it jointly with others”.53 The idea that constituent

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power is a collective power, the power of a people over their constitution, is of course not new: Sieyes attributed constituent power to the nation, and Schmitt, in his best moments, attributed it to the people. It is telling that even Friedrich depicted constituent power as the power of a group: constituent power cannot be correctly attributed to an individual or elite.54 Echoing these views, Ulrich Preuss has expressed that “essentially, the constituent power is the power of a collective body, which by the very act of constitution-giving, exercises its right to self-rule”.55 In a similar and more explicitly democratic vein, Dietrich Conrad has suggested that constituent power “always denoted not merely the constitution-making function somehow attributed to the people, but direct authorship of the people”.56 Constituent power, far from being equivalent to the arbitrary will of someone who succeeds in establishing a constitution, is subject to an important procedural limit: it must be exercised through a process that includes all those who will become subject to the constitutional regime. Since constituent power is closely related to the democratic ideal (more specifically, to the second dimension of democracy) it requires that a constitution is created in a manner consistent with the principles of democratic openness and popular participation. In fact, it can be said that the principles of democratic openness and popular participation are contained in the very concept of constituent power. As suggested by Sieyes and Schmitt, constituent power involves an unlimited constitution-making faculty, a power that assumes the constitutional regime from the outside and that is authorised to alter it in any way that it considers appropriate. No law, ordinary or fundamental, is outside the scope of the constituent power: from the perspective of the constituent subject, the constitutional regime appears as radically open, as the principle of democratic openness mandates. In terms of popular participation, it has already been established that according to most formulations of the concept, constituent power is seen as a power that must be exercised by those who will live under the new constitutional regime. When understood in this way, constituent power not only expresses the idea of an unlimited power to re-create constitutions, but of a power that must be exercised through processes that come, as close as possible, to the idea of a people giving itself a new constitution. According to this view, constituent power is always limited by the requirements of a democratic procedure. This is why to exercise constituent power is to engage in the kind of politics proper to the practice of democracy at the level of the fundamental laws. Moreover, as we will see in the next section, in order to be consistent with itself and avoid depriving the constitutional regime it inaugurates of democratic legitimacy, an exercise of constituent power should not result in the abolition of – or fail to create – the rights and institutions necessary to facilitate future constituent activities. Now, constituent power’s relationship with the principle of democratic openness brings to the fore the critique of lawlessness. That is to say, in being able to approach the constitutional regime from the outside, the constituent

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subject might be tempted to adopt constitution after constitution or, what is even worse, might attempt to perpetuate itself as an absolute decision-making power. When a ‘just and democratic’ constitution has been adopted, a radical democratic theory, one that points towards the people’s ability to re-create the constitutional regime through participatory procedures, appears at best as an irrelevant nuisance and at worst as a recipe for disaster. When confronted with this view, the questions that a democrat would ask herself are obvious. What if a ‘just and democratic’ constitution has not been adopted (or what if there is simply no such thing)? What if the constitution, far from having established a just and democratic regime, hinders the possibility of selfgovernment by creating structures that limit democracy or negate certain conceptions of what justice requires? One possible constitutionalist rejoinder to those questions is that, after all, the typical liberal (ie ‘just and democratic’) constitution is always open to piecemeal amendments and interpretation. Even if one accepts that view, it is unclear why more participatory procedures of constitutional change are not also desirable and, from a democratic perspective, required. That is to say, it is true that constitutional interpretation is capable of ‘augmenting’ the constitution (to use Arendt’s formulation),57 of expanding (or contracting) the scope of its system of rights and its protections of minorities, without at the same time involving the risk of a major constitutional overhaul. But most ordinary amendment processes, eternity clauses aside, can be used to transform constitutions in radical and important ways. Why should those processes not be made more inclusive and participatory? The fact that a highly participatory process would be understood as involving the exercise of constituent power, and therefore carrying with itself the possibility of the adoption of a new constitution, should not be seen as a problem in itself, unless one operates under a profound fear of democracy and popular politics. After all, nothing prevents government officials from using the amendment rule of a typical liberal constitution to replace it with a different one. However, the problem remains that a democratic constituent subject, seeing itself as unbound by any principle found in the established juridical order, might potentially rebel against the very idea of law and fail to adopt a constitution. In other words, if constituent power is a radically unlimited power, able to produce any substantive content, how to guarantee that it won’t decide to perpetuate itself? It is of course true that the constituent power is not subject to positive law, and that an exercise of constituent power usually involves the transformation of a constitutional regime in ways that go beyond its ordinary amendment process. Constituent power is thus a ‘rulebreaking’ activity, a practice that challenges the law, in the sense that it is not constrained by any limits other than self-imposed ones. But constituent power has a fundamental relationship with law: its destiny must always be the initiation of a new constitutional regime or the transformation of an old one.58 In other words, it always has a juridical objective; it is, as Kalyvas has stated, a juridical power, and “although it is outside established law, it is nevertheless of the law”.59

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In fact, all major theorists of constituent power believed that its exercise must always result in the establishment of a new or transformed constitution. For example, insisting that it was “not necessary to take many precautions” against extraordinary representatives, Sieyes argued that they were just appointed for “one purpose”, that of creating a new constitution, and for a “limited time”.60 And for Schmitt, while constituent power could be activated at any time, it always had to result in the making of a fundamental political decision, that is to say, in the making of a constitution.61 After the fundamental political decision is formulated and executed through a constituent assembly (or through the particular mechanism chosen by the constituent power), the assembly ceases to exist.62 Kalyvas has thus maintained that, for Schmitt, “[w]ith the creation of a stable constitution, the sovereign moves from a situation of concrete and physical public prominence to a state of invisibility”.63 This idea was also recognised by Friedrich, who wrote that constituent power must be “always employed to establish a constitution” and that if a constitution is not established, then an exercise of constituent power did not take place.64 This is one of the reasons why majority rule has traditionally been the decision-making method of constituent assemblies (even of those that create constitutions whose amendment requires qualified majorities): majority rule guarantees that a decision will be made and a constitution produced.65 Otherwise, there could be a limitless constituent power, a permanent deliberation about fundamental principles and an absence of democratic governance. Perhaps this is what Preuss means when he writes that constituent power “is a transitory power that exists only in an evanescent moment of history”.66 The exercise of constituent power cannot be permanent; each episode of constituent activity must end in the adoption of a novel constitution. Of course, there is always the possibility (however remote) of a democratically elected constituent assembly that perpetuates itself, establishes a new ‘revolutionary’ government and assumes permanent, ordinary law-making powers under the banner of a permanent revolution. Rather than a constituent act, that would be a coup d’état – an illegitimate seizure of power by a particular group that has received the mandate to create a new constitutional order but has instead decided to turn itself into ‘the government’. Fortunately, that is rarely the case and democratically convened constituent assemblies typically follow the same pattern: once a constitution is adopted, they immediately dissolve.67 The finality of an exercise of constituent power is precisely this: to return to normal politics after a new constitution is established. In that respect, constituent power not only reproduces the principles of democratic openness and popular participation but adds an important qualification: a constitution must be produced. There is no reason for a people to be constantly mobilised, for a constituent assembly to remain active after what was considered a defect – an injustice in the established constitutional regime – has been corrected. As suggested earlier, both the major theorists of constituent power aimed at the establishment of stable political regimes. As Martin Loughlin has argued,

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Sieyes, who maintained that the people could exercise their constituent power after a constitution is in place, thought that “one of the fundamental tasks of political practice is that this situation never arises”.68 And, as noted by David Dyzenhaus, even Schmitt, who radicalised Sieyes’ thought and is usually depicted as a thinker of the exception, “did not reject the idea of a society comprehensively governed by legal norms, on condition that the political decision that underpins that legal order is made explicit”.69 In that respect, a constitutional regime that does not attempt to close the door to the exercise of constituent power should not be seen as a recipe for arbitrariness and lawlessness, but as susceptible to episodical democratic transformations. As a result of that susceptibility, it would be able to claim democratic legitimacy.

The conditions of democratic legitimacy One can put into question the democratic legitimacy of a government, of a decision of the legislature or of a particular government official. As suggested above, this book’s approach to the question of democratic legitimacy is directed at constitutional regimes. The constitutional regime encompasses the constitution (be it written or unwritten) and the juridical structures it creates (e.g., the legislative, judicial and executive branches of governments as well as their interpretations about what the constitution requires). In other words, a constitutional regime is the legal apparatus that shapes the exercise of political power in a given jurisdiction, and its most fundamental component is the document or the set of principles known as ‘the constitution’. In that respect, to talk about the emergence of a constitutional regime and of the emergence of a new constitution is more or less the same. My conception of a ‘constitutional regime’ and ‘the constitution’ is strictly domestic: obligations such as those created by international treaties (e.g., the World Trade Organization) that for all practical purposes constitute a sort of supraconstitution, are therefore excluded.70 With respect to a particular constitutional regime, the question of democratic legitimacy is not about the procedure that the constitution establishes for law-making (i.e., democracy at the level of governance), but about the procedures through which the constitution was adopted and about how it may be altered (i.e., democracy at the level of the fundamental laws). A democratically legitimate constitutional regime would allow citizens to see the constitution as theirs, as their work in progress, and therefore to value it as their creation. This might certainly produce what could be seen as ‘loyalty’ toward the constitutional regime, but that loyalty does not translate into a moral duty to obey the directives of the constituted powers.71 As noted earlier, legitimacy and authority are separate ideas. In some cases, when the constituted powers’ commands are contrary to the established constitution, the loyalty to the constitutional regime might in fact recommend disobedience. Moreover, as will be seen in Chapter 9, when a majority of citizens believe that a constitutional regime (regardless of its democratic legitimacy or lack thereof) needs

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to be altered in important ways, they might decide to engage in different forms of protests (including civil disobedience) in order to activate a constituent process. Not everyone thinks about the legitimacy of constitutional regimes in the way I am proposing here. For instance, it has been written that a constitution is only legitimate “if those who are governed by it, including the organs of the state, acquiesce to its terms”.72 This kind of approach (reminiscent of Weber) is not only at odds with the idea of democratic legitimacy, but with the very idea of democracy. For example, it would consider legitimate a constitution that was imposed from above, according to which a sole individual exercises unlimited power as long as the relevant group of human beings ‘acquiesce to its terms’. I make reference to this approach in order to stress once more that democratic legitimacy is a broader idea than legitimacy as such. Its ‘democratic’ element connects the idea of legitimacy to democracy and its corollaries of openness and popular participation. In that respect, it is also more specific than other conceptions of democratic legitimacy. For instance, Joshua Cohen has expressed that “[t]he fundamental idea of democratic legitimacy is that the authorisation to exercise state power must arise from the collective decisions of the members of a society who are governed by that power”.73 But this definition is too general. It is better to say that for democratic legitimacy demands the participation of ordinary citizens in constituting (and their possibilities of re-constituting) the norms that govern the state. That is to say, a democratically legitimate constitutional regime is one that has emerged from (and created the conditions for) the realisation of what in Chapter 3 was identified as the second dimension of democracy. To meet these requirements, a constitutional regime must see constituent power as having a fundamental role in a democratic polity. This is why the fact that constituent power has been traditionally ignored by Anglo-American constitutional theory is fully understandable: if its importance were recognised, most constitutional regimes would be (correctly) seen as characterised by profound deficits of democratic legitimacy. Contrary to the dominant constitutional theories of legitimacy (‘the belief of legitimacy’ and the idea that a legitimate constitution is one that would be accepted by a rational people),74 a theory of democratic legitimacy that has constituent power at its centre asks us to look at the actual role that citizens played during the moment of constitution-making and at the role they are allowed to play if they wish to adopt a new or radically transformed constitution. Accordingly, such a theory imposes two main demands on a constitutional regime. First, a constitutional regime should have a democratic pedigree. This democratic pedigree refers to the degree of openness and popular participation experienced during the moment of constitution-making, which constituent power demands in light of its collective character. As noted in previous chapters, the principle of popular participation is not exhausted by the celebration of a popular referendum for the ratification of the constitutional text. Citizens must also be involved in the process of creating the constitution, for example,

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by being able to initiate a constitution-making process, through the selection of delegates to a constituent assembly, the presentation of proposals and, finally, through the ratification of the constitutional changes in a referendum. Moreover, a constitution must be born out of a context of democratic openness, in which the entire content of the future constitution is open to deliberation and debate and in which the constitution-maker is not constrained by any external or internal agent. That is to say, in a genuine exercise of constituent power, the people (as constitution-maker) cannot be subject to any form of positive law (national or international). The only exception are those limits that a democratic citizenry might impose on itself (such as those limits found in a country’s political culture or perhaps in a set of principles or laws that the constitution-maker considers appropriate to respect, as might be the case of the state’s international obligations).75 Most constitutional regimes (especially, but not only, those with very old written constitutions or with uncodified ones) would not even come close to meeting the requirement of a democratic pedigree, a defect that can only be superseded by the adoption of a new constitution or by the ratification of the existing one through a special participatory procedure. In fact, most modern constitutions were adopted by political elites, with the exclusion of large sectors of the population.76 A constitutional regime that lacks a democratic pedigree may still have a claim to democratic legitimacy (albeit a weaker claim) provided that it meets the second criterion (which, as we will see shortly, is also the basic condition of democratic legitimacy): a constitutional regime must be susceptible to democratic re-constitution; that is, it must not close the door to the future re-emergence of constituent power. An important part of the theory of constituent power is precisely about this: that constituent power does not disappear with the creation of a constitution; that a democratic pedigree is never enough. Although almost no one who claims to be a democrat is against popularly adopted constitutions, the idea that a constitution should remain permanently open to important transformations is controversial. This second requirement is mainly about the realisation of the principle of democratic openness, according to which there is no such thing as a finished constitution and even the most fundamental provisions of the constitutional regime must be open to debate and be susceptible to change through participatory procedures. In this respect, the second criterion of democratic legitimacy is consistent with Habermas’ conception of a constitutional regime as having a “future-oriented character”, an “openness” that allows present generations to revisit its basic principles and institutions.77 It is a ‘forward-looking’ criterion, one that looks at the possibilities of democratic re-constitution and not at the original constitution-making process. Accordingly, it avoids the problem of the ‘infinite regress’ that plagues some conceptions of democratic legitimacy (that is, the idea that the procedures of a democratic constitutionmaking process must also have been created democratically).78 Kalyvas’ account of constituent power and its relation to democratic legitimacy appears incomplete in this respect: “In a democratic regime, the legiti-

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macy of the fundamental laws and institutions depends on how inclusive the participation of citizens is during the extraordinary and exceptional moment of constitution-making.”79 If taken literally, that conception of democratic legitimacy would only look at the process through which a constitutional regime was created, and would not pay attention to its susceptibility to re-constitution. According to the conception presented here, it is this second requirement which allows a constitutional regime that lacks a democratic pedigree to enjoy a minimal degree of democratic legitimacy. In that sense, the second criterion determines the democratic legitimacy of a constitutional regime; this is why it can be understood as democratic legitimacy’s basic condition. However, it certainly makes a difference if a constitution that meets this condition was created by a democratic assembly or by a less (or non-) democratic institution (e.g., a special assembly of experts appointed by an elected legislature): in other words a constitutional regime that meets the two criteria discussed above would enjoy a higher degree of democratic legitimacy than one that meets only the second one.80 Moreover, it is an open question whether a constitutional regime imposed by a military dictator but that contains an amendment rule allowing for participatory constitutional change would ever come to enjoy more than the weakest form of democratic legitimacy possible (of course, during the moment at which it is imposed, such a regime would negate, in a radical way, the very idea of democratic legitimacy and the basic concept of democratic re-constitution).81 This second criterion has an additional and important implication (whose practical consequences will be fully explored in Chapter 7). Not only must the constitutional regime be susceptible to re-constitution through highly participatory procedures, but all instances of re-constitution must take place through this kind of procedure. Otherwise, the regime would have failed to provide an opening for constituent power to manifest, allowing important constitutional transformations to take place through ordinary and non-participatory procedures. That is to say, fundamental constitutional changes (changes that amount to an instance of re-constitution) should not be adopted by the ordinary institutions of government or through the normal process of constitutional reform. Those types of changes require an exercise of constituent power and, as such, must be adopted through the most participatory procedures possible. Accordingly, if a constitutional regime is re-constituted through a process that cannot be understood as a genuine exercise of constituent power (i.e., because it is inconsistent with the principles of democratic openness and popular participation) then the democratic legitimacy of the (resulting) regime would be put into question (in a way, the new or re-constituted constitutional regime would also fail to meet the first criterion, since it would lack a democratic pedigree). Now, for this second criterion to mean something for actual constitutional practice, it must have institutional implications. In other words, the constitutional forms must provide the means for constituent power to reappear after

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the constitution is in place and, if needed, to put the entire institutional arrangement into question. To begin with, there must be some basic institutional guarantees in place: freedom of assembly, freedom of expression, the right to vote; in short, those rights of political participation necessary for the very existence of democracy.82 If these rights are not respected, an exercise of constituent power, as well as any form of democratic engagement, would hardly be possible. As suggested earlier (and however unlikely)83 there could be an episode of participatory constitutional change, an exercise of constituent power, which results in the abolition of these guarantees. Even when the constituent subject is free to adopt any constitution it wants, the abolition of the rights of political participation (or the creation of a regime that negates the principles of popular participation and democratic openness) would be inconsistent with the future exercise of constituent power and with the very idea of democratic legitimacy. Like democracy, constituent power destroys itself when it violates the conditions that make it possible. In this respect, this second criterion is incompatible with, for instance, a dictatorship established through a democratically elected constituent assembly and ratified by the people in a referendum. Such a regime would not be susceptible to democratic re-constitution as it would not contain the guarantees and institutions that allow citizens to deliberate and decide on the future of their constitutional regime. Accordingly, it will be characterised by a profound deficit of democratic legitimacy regardless of its pedigree. Nevertheless, beyond the recognition of the rights of political participation, a constitutional regime must have some institutional mechanism in place (in addition to the ordinary amendment procedure) designed to allow citizens to propose, deliberate and decide upon fundamental changes to the constitution. These institutions should allow for the greatest possible degree of popular participation in constitutional reform, and as facilitators of the exercise of constituent power, they must not be subject to any substantive limitations originating in the established juridical order. The nature of these institutions, characteristic of a weak form of constitutionalism, will be considered in Chapter 8.

Concluding remarks To enjoy democratic legitimacy, as I have argued in this chapter, a constitutional regime should have a democratic pedigree and must allow constituent power to manifest from time to time. Such a regime would be based on a theory that rejects the idea that constituent power is forever exhausted with the adoption of a constitution and provide a means of egress, an outlet for it to become manifest when important juridical transformations are needed. Only a constitutional regime that is open to this kind of transformation, I have argued, can be considered legitimate from a democratic perspective; and even one that did not originate in a democratic constitution-making episode can enjoy a degree of democratic legitimacy if it is susceptible to

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re-constitution. In most modern states, the adoption of the mechanisms that would make this possible would itself involve a change in the balance of power as it would take away from the legislature the ability to re-constitute the juridical order. As will be argued in Chapter 8, only a constitutional regime based on a weak form of constitutionalism, one that does not see constituent power as a threat, can ever be considered legitimate from a democratic perspective. Before advancing that conception of constitutionalism and considering the constitutional forms that would be consistent with it, it is necessary to explore the types of constitutional transformations that warrant the exercise of constituent power. As such, the next chapter will argue that for a constitutional regime to meet the demands of democratic legitimacy it must distinguish between ordinary and fundamental constitutional change. In the absence of such a distinction, every single change in the constitution would require a degree of participation that would trivialise constituent power or make constitutional change as remote and infrequent as the founding of a new state. If these democratic processes are simply made parallel to the ordinary amendment procedure – that is, if the people and the legislature were attributed with the same powers of constitutional reform – not only would the ordinary legislature become a sort of constituent assembly in permanent session, duplicating the people as constituent subject, but it would have the power to abolish the institutions that allow for the very possibility of democratic re-constitution.

Notes 1 “To speak of constituent power is to speak of democracy. In the modern age the two concepts have often been related . . .” Antonio Negri, Insurgencies: Constituent Power and the Modern State, Minneapolis: University of Minnesota Press, 1999, p 1. 2 David Beetham, The Legitimation of Power, New Jersey: Humanities Press International, 1991, pp 4–5. 3 Ibid., p 4. 4 Hans Kelsen, Introduction to the Problems of Legal Theory: A Translation from the First Edition of Reine Rechtslehre or Pure Theory of Law, Oxford: Clarendon Press, 1992, p 18; Hans Kelsen, Pure Theory of Law, Berkeley: University of California Press, 1967, p 209. 5 Joseph Raz, ‘Kelsen’s Theory of the Basic Norm’, in Stanley L. Paulson et al (eds), Normativity and Norms: Critical Perspectives on Kelsenian Themes, Oxford: Clarendon Press, 1998, p 51. 6 Beetham, The Legitimation of Power, p 5. 7 Ibid., p 6. For a similar view, see Charles Taylor, ‘Alternative Futures: Legitimacy, Identity and Alienation in Late Twentieth Century Canada’, in M. Daly (ed), Communitarianism: A New Public Ethics, California: Wadsworth, 1994, p 58. For Taylor, legitimacy “is meant to designate the beliefs and attitudes that members have toward the society they make up. The society has legitimacy when members so understand and value it that they are willing to assume the disciplines and burdens which membership entails. Legitimacy declines when this willingness flags or fail”. Ibid. 8 Ibid.

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9 Max Weber, ‘The Profession and Vocation of Politics’, in Peter Lassman and Ronald Speirs (eds), Weber: Political Writings, Cambridge: Cambridge University Press, 1994, p 310. 10 Beetham, The Legitimation of Power, p 8. 11 For an attempt to combine some of these accounts, see Chris Thornhill, ‘Political Legitimacy: A Theoretical Approach Between Facts and Norms’, Constellations, 2011, vol 18(2), p 135. 12 Beetham, The Legitimation of Power, p 5. 13 Ibid. 14 John Rawls, A Theory of Justice, Cambridge: Harvard University Press, 1999, p 314. 15 John Rawls, Political Liberalism, New York: Columbia University Press, 2005, p 224. 16 Beetham, The Legitimation of Power, p 5. 17 For a different and recently developed typology, see Pierre Rosanvallon, ‘The Metamorphoses of Democratic Legitimacy: Impartiality, Reflexivity, Proximity’, Constellations, 2011, vol 18(2), p 114. 18 For an approach that seeks to distinguish between justification and legitimacy, see Wojciech Sadursky, ‘Law’s Legitimacy and “Democracy-Plus”, Oxford Journal of Legal Studies, 2006, vol 26(2), p 377. For a distinction between ‘substantive theories of legitimacy’ and ‘procedural theories of legitimacy’ that explains how these theories differ in terms of the role they attribute to the content of the laws, see Scott Hershovitz, ‘Legitimacy, Democracy, and Razian Authority’, Legal Theory, 2003, vol 9, p 221. For approaches that do not seem to distinguish between these concepts see Rawls, Political Liberalism, p 224; Ronald Dworkin, Law’s Empire, Cambridge: Harvard University Press, 1986, pp 190–191; Joseph Raz, The Morality of Freedom, Oxford: Oxford University Press, 1986, pp 70–71; Leslie Green, The Authority of the State, Oxford: Oxford University Press, 1990, p 5; Jeffrey Reiman, In Defense of Political Philosophy, New York: Harper and Row, 1972, pp 41–42. 19 A. John Simmons, ‘Justification and Legitimacy’, Ethics, 199, vol 109(4), p 739. See also A. John Simmons, Justification and Legitimacy: Essays on Rights and Obligations, Cambridge: Cambridge University Press, 2000. 20 Simmons, ‘Justification and Legitimacy’, p 742. 21 As Simmons himself notes, Locke does not use the terms ‘legitimacy’ and ‘justification’ in this context. 22 Simmons, ‘Justification and Legitimacy’, p 745. 23 John Locke, Two Treatises of Government, New York: Hafner Publishing Co., 1956, p 184, para 123. 24 Simmons, ‘Justification and Legitimacy’, p 752 25 Ibid., p 755. 26 Kant argues that persons have rights (e.g., the innate right to freedom or property rights) that can only be respected and enjoyed in civil society. To respect the rights of others, each person has an obligation to leave the state of nature and accept membership in civil society under coercive law. Thus, for Kant the justification of the state (its necessity for the realisation of rights) involves an obligation to accept the duties of civil society. As Simmons notes: “This justification is apparently intended by Kant to at the same time legitimate particular states by binding each of us to obedience to the laws of our own states.” Ibid. See also Immanuel Kant, The Metaphysics of Morals, Cambridge: Cambridge University Press, 1996 and Immanuel Kant, ‘Perpetual Peace’, in Hans Reiss (ed), Kant: Political Writings, Cambridge: Cambridge University Press, 1991. 27 Simmons, ‘Justification and Legitimacy’, p 761. The most famous of these contemporary Kantians is Rawls.

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28 This means that all states, including liberal democratic states, are illegitimate. For Simmons this does not make questions about legitimacy unimportant or irrelevant: “If all states are illegitimate, how important can questions about legitimacy be? The proper answer, I think, is that state legitimacy remains an important dimension of institutional evaluation because where states are legitimate with respect to persons, those states can justify acting . . . in more restrictive fashions, and those persons can justify less in the way of noncompliance and resistance than where states are illegitimate with respect to persons.” Simmons, ‘Justification and Legitimacy’, n 68. 29 In his entry in A Companion to Contemporary Political Philosophy, Richard E. Flathman takes the same route: “Together with its kissing cousins ‘authority’ and ‘obligation’, legitimacy is a notion that should arouse apprehension. Governments that are legitimate have the ‘right to rule’, to demand obedience from their citizens or subjects.” Richard E. Flathman, ‘Legitimacy’, in Robert E. Goodin and Philip Pettit (eds), A Companion to Contemporary Political Philosophy, Oxford: Blackwell Publishers, 1997, p 527. 30 Simmons, ‘Justification and Legitimacy’, p 746. 31 See Leslie Green, ‘Legal Obligation and Authority’, in Stanford Encyclopedia of Philosophy, Available http://plato.stanford.edu/entries/legal-obligation/> (accessed 8 September 2011). 32 Many authors use the term ‘legitimacy’ as equivalent to the term ‘authority’. See for example Randy E. Barnett, ‘Constitutional Legitimacy’, Columbia Law Review, 2003, vol 103, p 116: “A lawmaking system is legitimate, then, if it creates commands that citizens have a moral duty to obey.” For a recent discussion, see Jon Garthoff, ‘Legitimacy is not Authority’, Law and Philosophy, 2010, vol 29, p 669. 33 For an overview of some of these conceptions see Sadurski, ‘Law’s Legitimacy and “Democracy-Plus”’. 34 It could also be maintained that subjects should obey the law if laws are reasonable, wise, etc.; in other words, if they can be justified. For a discussion of the ways in which the concepts of legitimacy, justification and authority ‘interact’ with each other, see Sadurski, ‘Law’s Legitimacy and “Democracy-Plus”’. 35 Allen Buchanan, ‘Political Legitimacy and Democracy’, Ethics, 2002, vol 112, p 695. 36 One author who has stressed this point is Allen Buchanan. See his Justice, Legitimacy and Self-Determination: Moral Foundations for International Law, Oxford: Oxford University Press, 2004. 37 Ibid., p 242. In that respect, consent might make a constitutional regime legitimate in the Weberian sense but, as we will see later, it is not enough to make it democratically legitimate. 38 As Barber has written, “[t]he doctrine of consent was originally intended to give obedience a justification rooted in the interests of individuals rather than in the authority of states (in the rights of the ruled rather than in the rights of rulers) and did not necessarily entail democratic arrangements”. Benjamin Barber, A Passion for Democracy, Princeton: Princeton University Press, 1988, p 17. 39 See Hershovitz, ‘Legitimacy, Democracy, and Razian Authority’, p 217 and Alexander Kirshner, ‘Proceduralism and Popular Threats to Democracy’, Journal of Political Philosophy, 2010, vol 18(4), p 420. This obligation to take compliance with democratically enacted laws seriously is not to the state but to other citizens. Buchanan, Justice, Legitimacy and Self-Determination, p 253. 40 See Buchanan, ‘Political Legitimacy and Democracy’, p 714. 41 See Jeremy Waldron, ‘Rights and Majorities: Rousseau Revisited’, in John W. Chapman and Alan Wertheimer (eds), Majorities and Minorities, New York: New York University Press, 1990.

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42 This does not mean, however, that democratic legitimacy might not be one of the sources in which the legitimacy (in the sense of ‘the belief in legitimacy’) of a legal system rests. See Richard H. Fallon, Jr., ‘The Core of an Uneasy Case For Judicial Review’, Harvard Law Review, 2008, vol 121, p 1693. 43 Andrew Arato, ‘Forms of Constitution Making and Theories of Democracy’, Cardozo Law Review, 1996, vol 17, p 198, n 19. 44 See Renato Cristi, ‘The Metaphysics of Constituent Power: Schmitt and the Genesis of the Chile’s 1980 Constitution’, Cardozo Law Review, 2000, vol 21, p 1748. 45 A different line of attack to constituent power, which goes beyond the focus in its potential risks, has been advanced by David Dyzenhaus. For Dyzenhaus, “the question of constituent power simply does not arise for a liberal account of the rule of law”. Dyzenhaus, ‘The Politics of the Question of Constituent Power’, in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form, Oxford: Oxford University Press, 2007, pp 129–130. Dyzenhaus invites liberals to locate the ultimate source of authority of a legal order in principles “which are required to make sense of an ongoing practice of legality”, rather than in a legally uncontrolled constituent power. Ibid., p 144. A power who wishes to be sovereign must rule in accordance with the rule of law, which is taken to include principles such as impartiality, fairness and equality before the law. By respecting these principles, the institutions of a legal order collaborate in the ongoing constitution of a legitimate political authority. Despite its undeniable force, Dyzenhaus’ approach lacks any reference to the relationship between constituent power and democracy and, as a result, he does away with the question of constituent power at the price of neglecting its democratic potential. 46 Bruce Ackerman, We the People II: Transformations, Cambridge: Harvard University Press, 1998, p 11. 47 Carl Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America, New York: Blaisdell Publishing Company, 1950, p 129. 48 Ackerman, Transformations, p 11. 49 Ibid. 50 Hannah Arendt, On Revolution, Penguin Books, 1990. 51 Ibid., p 163. 52 Andreas Kalyvas, ‘The Basic Norm and Democracy in Hans Kelsen’s Legal and Political Theory’, Philosophy and Social Criticism, 2006, vol 32(5), pp 588, 589. 53 Ibid. 54 Friedrich, Constitutional Government and Democracy, p 132 55 Ibid. 56 Dietrich Conrad, ‘Limitation of Amendment Procedures and the Constituent Power’, The Indian Year Book of International Affairs, India: Madras, 1966–1967, p 403. 57 Arendt, On Revolution, p 202. 58 Andreas Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’, Constellations, 2005, vol 12(2), pp 233–234. 59 Ibid., p 234. 60 Emmanuel Joseph Sieyes, What is the Third Estate?, New York: Praeger, 1963, p 131. 61 Carl Schmitt, Constitutional Theory, Durham: Duke University Press, 2008, p 140. 62 For a discussion, see Arato, ‘Forms of Constitution Making and Theories of Democracy’, pp 202–205. 63 Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt, Cambridge: Cambridge University Press, 2008, p 133.

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64 Friedrich, Constitutional Government and Democracy, p 130. 65 Ulrich Preuss, ‘The Exercise of Constituent Power in Central and Eastern Europe’, in The Paradox of Constitutionalism, p 219. Locke also expressed this idea when he wrote that “where the majority cannot conclude the rest, there they cannot act as one body, and consequently will be immediately dissolved again”. Locke, Two Treatises of Government, p 170, para 98. 66 Preuss, ‘The Exercise of Constituent Power in Central and Eastern Europe’, p 218. 67 Of course, an ordinary legislature can be attributed with constitution-making faculties and, after the constitution is adopted, remain as an ordinary legislature (different examples of this model are provided by Spain in 1977, by the Czech and Slovak Republics in 1992 and by South Africa in 1996). For a discussion, see Andrew Arato, ‘Forms of Constitution Making and Theories of Democracy’. Moreover, some constituent assemblies have decided to exercise ordinary lawmaking powers while drafting the new constitution (even though they have dissolved after the constitution was created). For example, in Venezuela, the Constituent Assembly that drafted the Constitution of 1999 adopted several ordinary laws and even removed some judges from office. See Ricardo Combellas, ‘El Proceso Constituyente y la Constitución de 1999’, Politeia, 2003, vol 26(30), p 100. See also Laura Louza, ‘La Independencia del Poder Judicial a Partir de la Constitución de 1999’, Politeia, 2007, vol 30(38), p 151. In eighteenth-century France, too, the Constituent Assembly engaged in different forms of governance and in the adoption of ordinary laws, but after the king formally agreed to the new constitution in September 1791, the assembly immediately dissolved (the National Convention that began to operate one year later, however, attempted to perpetuate itself and extended its own powers in important ways). Alfred Cobban, A History of Modern France, Vol 1: 1715–1799, Penguin Books, 1963, pp 163, 176, 184, 250–251. There are some interesting examples of state conventions in nineteenth-century US that engaged, even if for a limited period, in the making of ordinary laws. For example, the South Carolina Convention of 1895 established a new county, paid interests on the public debt, put the counties on a cash basis and passed three statutes validating the subscriptions for stock in several railroads. In fact, this convention got so carried away with the idea of legislating that one of the members moved ‘that there shall be no session of the legislature this year, but the convention shall do its work in its place’. Roger Sherman Hoar, Constitutional Conventions: Their Nature, Powers, and Limitations, Boston: Little, Brown, & Company, 1917, Chapter XI, sec 8. 68 Martin Loughlin, The Idea of Public Law, Oxford: Oxford University Press, 2003, p 63. 69 David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Herman Heller in Weimar, Oxford: Oxford University Press, 2003, p 46. 70 This is certainly an important discussion, but it is out of the scope of this book. See for example Stephen Clarkson, Uncle Sam and Us: Globalization, Neoconservatism and the Canadian State, Toronto: University of Toronto Press, 2002, in particular chapter 4, “NAFTA and WTO as Supraconstitution”; David Schneiderman, Constitutionalizing Economic Globalization: Investments Rules and Democracy’s Promise, Cambridge: Cambridge University Press, 2008. I am also assuming that there are no competing claims to constituent power. In a constitutional regime that faces a demand of secession by a segment of the citizenry, the question of democratic legitimacy seems more like a luxury than like a real political aspiration: when the objective is keeping the constitutional regime from falling into pieces, the idea of democracy at the level of the fundamental laws is not a priority. In this kind of situation, the central question becomes: what group(s) has the constituent power? The answer to this question is decisive with respect to

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democratic legitimacy because whoever has the constituent power has the power to legitimate the constitutional regime or to establish a separate (potentially democratically legitimate) one. This is an answer that is profoundly political: it is to be found in political struggle and argumentation and not in established domestic or international law. Suffice it to say that while the competing claim to constituent power might have its roots in nationalism, it might partly rest in what is perceived as a democratically illegitimate constitutional regime: a constitution that is seen as imposed on part of the citizenry, even if it is a constitution that contains what are thought to be the right content. In Canada, the case of Quebec and the patriation of the constitution in 1982 might provide an example of this point. See Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People?, Toronto: Toronto University Press, 1993. This point is, of course, reminiscent of the idea of constitutional patriotism, most famously put forward by Jürgen Habermas. For a discussion, see JanWerner Müller, ‘A General Theory of Constitutional Patriotism’, International Journal of Constitutional Law, 2007, vol 6(1), p 72. François Venter, ‘Constitution Making and the Legitimacy of the Constitution’, in Antero Jyränki (ed), National Constitutions in the Era of Integration, The Hague: Kluwer Law International, 1999, p 21. Joshua Cohen, ‘Procedure and Substance in Deliberative Democracy’, in Seyla Benhabib (ed), Democracy and Difference: Contesting the Boundaries of the Political, Princeton: Princeton University Press, 1996, p 95. Consider, for example, the following statement by Ronald Holzhacker: “There are two main methods for assessing the democratic legitimacy of a political system. The first one is to evaluate the political system against normative theory, enquiring to what extent a political system conforms to certain normative criteria. The second is to determine empirically the extent a political system is seen as right and deserving of loyalty by its citizens – the members of a particular polity.” Ronald Holzhacker, ‘Democratic Legitimacy and the European Union’, European Integration, 2007, vol 29(3), p 259. These methods are about finding legitimacy in an order that did not have it when it was created and do not pay attention to the possibilities of its re-creation. This is probably what the delegates to the Venezuelan constituent assembly had in mind when, after recognising the unlimited constituent power of the people, included a constitutional provision that stated: “The people of Venezuela, loyal to the republican tradition, to their independence struggle, to peace and freedom, will not recognise [desconocerá] any regime, law, or authority that is inconsistent with the values, principles, and democratic guarantees or that erodes human rights.” Constitution of Venezuela (1999), Article 350. The history of the making of the US Constitution is telling in this respect. Jürgen Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’, Political Theory, 2001, vol 29(6), p 774. Habermas’ conception of legitimacy, however, sometimes appears wanting from the perspective of popular participation. See for example his discussion of Rousseau and Schumpeter in Jürgen Habermas, ‘Legitimation Problems in the Modern State’, in Communication and the Evolution of Society, Cambridge: Polity Press, 1991, pp 186–187. On this point, see Christopher Zurn, ‘The Logic of Legitimacy: Bootstrapping Paradoxes of Constitutional Democracy’, Legal Theory, 2010, vol 16(3), p 191. Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’, p 237. See also Andreas Kalyvas, ‘Book Review’, Constellations, 2001, vol 8(3), p 413. Perhaps what Kalyvas means is that every important constitutional transformation counts as an act of ‘constitution-making’ in itself, thus presenting a conception of democratic legitimacy that implicitly recognises the possibility of constitutional (re)making.

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80 See Zurn, ‘The Logic of Legitimacy: Bootstrapping Paradoxes of Constitutional Democracy’. 81 A constitution that has been created through an open and participatory constitution-making process but is not susceptible to democratic re-constitution would arguably enjoy an important degree of democratic legitimacy at the moment of its creation and shortly afterwards, but would lose that democratic legitimacy through time. 82 For a conception of democratic legitimacy that focuses on the pre-conditions of a democratic decision-making process, see Fabienne Peter, Democratic Legitimacy, London: Routledge, 2009. 83 There are, to my knowledge, no historical examples of a democratically elected constituent assembly that has decided to abolish democracy. In fact, available empirical evidence suggests that the more participatory a constitution-making process is, the more likely it is that the constitution it produces allows for different forms of popular participation. See Tom Ginsburg, Zachary Elkins and Justin Blount, ‘Does the Process of Constitution-Making Matter?’, Annual Review of Law and Social Science, 2009, vol 5, p 201.

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Not all constitutional regimes emerge out of democratic constitution-making episodes. In fact, many countries enjoying a reasonable degree of democratic governance frequently operate under constitutions adopted by state officials with little or no participation from ordinary citizens (unwritten constitutions would almost, by definition, fit this description).1 Other countries suffer from a different problem: they operate under constitutions that were imposed from the outside, even if drafted by an elected constituent assembly and ratified in a referendum.2 In the previous chapter, I suggested that such regimes are not necessarily illegitimate from a democratic perspective. Their claim to democratic legitimacy might lie in the fact that, although adopted through a process inconsistent with the basic principles of the democratic ideal (e.g., a constitution adopted by a group of well-intentioned jurists or by an ordinary legislature), they can be re-constituted democratically. Before exploring the question of what specific type of political practices amount to a democratic re-constitution (a question that will be considered in Chapter 8), it is necessary to determine what kind of constitutional changes amount to the creation of a new constitution. That is to say, when can we be said to be witnessing an instance of re-constitution? In answering that question, this chapter will advance a distinction between the power of constitutional reform and the exercise of constituent power: the latter representing an episode of fundamental constitutional change in which an active citizenry produces novel juridical forms without being subject to any form of positive law; the former only capable of producing certain constitutional changes and not requiring the same level of direct public involvement. This distinction is important since, if it were necessary for every constitutional change to be made through extraordinary and highly participatory procedures, the approach to democratic legitimacy presented in this book would hardly have any practical applications. Constitutions sometimes need to be changed in order to correct a small defect or to replace or alter a provision that has become anachronistic, and there is no reason why those small changes, which sit somewhere between the creation of an ordinary law and the adoption of a new and different constitution, should always be adopted through highly participatory procedures. Put differently, a system in which

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all constitutional changes have to be adopted through a process that involves intense levels of popular participation is neither practical nor desirable: it would unnecessarily burden both citizens and governments, forcing them to engage in costly and time-consuming procedures that are best reserved for exceptional circumstances. The solution, however, cannot be found in the opposite extreme; that is, a system in which legislative majorities (like in the United Kingdom) or supermajorities (like the United States) can make any constitutional change whatsoever, and in which the participation of the citizenry is minimal or nonexistent. In contrast, this chapter will defend a distinction between ordinary and fundamental changes, each of them requiring a different set of procedures. When a fundamental constitutional change takes place, the constitutional regime is re-constituted, and thus an exercise of the people’s constituent power is required (as mandated by the second condition of democratic legitimacy). The chapter begins by examining the distinction between ordinary and fundamental constitutional change through a discussion of Carl Schmitt’s and John Rawls’ thoughts on the limits of constitutional reform. It then considers an unorthodox (but increasingly popular) approach that puts Schmitt’s and Rawls’ conceptions into practice: the judicial doctrine of unconstitutional constitutional amendments, which rests in a recognition of the distinction between constituted and constituent power, and suggests that certain changes can only be adopted by the constituent subject. The chapter then moves to explore the ways in which traditional constitutional arrangements deal with the distinction between ordinary and fundamental constitutional change and, indirectly, with the question of constituent power. The problem, it will be seen, is that distinguishing between ordinary and fundamental constitutional change does not mean much from the perspective of democracy at the level of the fundamental laws unless that latter kind of change takes place through procedures consistent with the principles of popular participation and democratic openness.

Schmitt and Rawls on the limits of constitutional reform Eternity clauses, of course, are a way of distinguishing between fundamental and non-fundamental constitutional change. For example, when Article 60 of Brazil’s Constitution (1988) prohibits amendments that abolish federalism, universal suffrage, the separation of powers and individual rights, or when Article 268 of the Constitution of the Dominican Republic (2010) puts the republican, democratic and representative form of government outside the scope of the amending power, they are in fact identifying what was considered fundamental for those countries’ constitution-makers. This chapter, however, will focus on the theory of implicit limits to the power of constitutional reform and, apart from a few brief comments, it will not consider in detail the role of eternity clauses. In so doing, it seeks to suggest that all constitutions, not just those containing unamendable constitutional clauses, have a fundamental

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core whose alteration is equivalent to the creation of a new constitution. Such alterations, it will be argued, must take place through an exercise of constituent power (which mandates the use of highly participatory mechanisms). John Rawls and Carl Schmitt provide important insights into the distinction between ordinary and fundamental constitutional change, as well as the relationship between the theory of implicit limits to constitutional reform and constituent power: their views will be considered below. It is not commonplace to find similarities in the thoughts of authors with such different intellectual and political orientations as Rawls and Schmitt. The former was a leading liberal political philosopher, the latter was directly involved with Nazism after 1933; it would be difficult to find two scholars with more radically opposing trajectories. Rawls and Schmitt, however, reached similar conclusions regarding the limits of constitutional reform. They both believed that a constitutional amendment, even if adopted with the strictest respect to the constitution’s amendment rule, could be unconstitutional if it resulted in the creation of a different juridical order.3 Schmitt, whose conception of constituent power was discussed in Chapter 5, developed a theory of constitutional amendments based on a clear differentiation between the power of constitutional reform and constituent power. In particular, he defended a distinction between the ‘Constitution’ (understood as the conscious decision of the constituent subject in favour of a determinate mode of political existence) and mere ‘constitutional laws’ (understood as individual constitutional clauses enumerated in the document called ‘the Constitution’ but lacking a truly fundamental character).4 In the context of a written constitution, the kind of decisions that make the constitution different from particular constitutional laws can often be identified in the constitutional text, usually in those articles that refer to the basic structure of government, as well as in the preamble (in fact, Schmitt insisted that preambles frequently contain clear statements of the fundamental political decisions of the constituent subject, and should therefore not be discarded as ‘mere proclamations’).5 For instance, in the context of the Weimar Constitution (Schmitt’s specific frame of reference), these decisions included Article 1’s adoption of democracy as a form of government, the rejection of monarchy,6 the adoption of a federal structure of government, of parliamentarism and of the institutions of the “bourgeois Reschstaat with its principles, fundamental rights and the separation of powers”.7 Moreover, Schmitt maintained that an alteration of Article 76 (the amendment procedure) would also amount to the elimination of the constitution: the power to reform the constitution cannot modify the legal provision that regulates its existence and competencies.8 Constitutional laws, in contrast, are simply norms that have been included in the written constitution in order to protect them from ordinary parliamentary majorities.9 To continue with the Weimar Constitution, one could refer to Article 149 as an example of a constitutional law: “Universities will maintain Faculties of Theology.”

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Schmitt believed that constitutional laws were the proper object of the ordinary power of constitutional reform, as opposed to the fundamental decisions contained in the Constitution, which could only be touched by the constituent subject. Thus, an alteration or suppression of the above mentioned Article 149 through the ordinary amendment procedure would be perfectly valid, while the substitution of Article 1 for a clause that reads “All power stems from the King” (regardless of how respectful one is of the amendment formula) would signify the annihilation10 of the Constitution and the revolutionary creation of a new one.11 It is not that constitutional laws are unimportant; they were considered important by the constitution-makers and hence they included them in the document titled ‘the Constitution’. However, constitutional laws fall short of having the fundamental character of the decisions pertaining to a people’s political existence. It is thus absurd, according to Schmitt, to attribute equal status to all constitutional provisions, to see the constitution simply as a collection of clauses that are different from ordinary laws by virtue of not being susceptible to amendment through the same processes (in the case of a rigid written constitution). Interestingly, Schmitt’s conception of the limits of constitutional reform also applies to systems that operate under the doctrine of parliamentary sovereignty. For him, depictions of the Westminster Parliament as “all powerful” were a cause of great confusion, since “a majority decision of the English Parliament would not suffice to make England into a Soviet state”.12 “Only the direct, conscious will of the entire English people, not some parliamentary majority,” he added, “would be able to institute such fundamental changes.”13 Moreover, those constitutions that contain explicit limits to the amending power, like the German, Italian and Norwegian Constitutions, simply make clear the distinction between amendment and revolution, between constitutional reform and constituent power: if something is put outside the scope of the amending power it must be because it is of such a fundamental character that can only be altered by the constituent subject.14 Even in the context of those constitutions that explicitly allow for the ‘total revision’15 of the constitutional text, a change in the basic form of government (e.g., replacing a republic with a monarchy) would go beyond the realm of constitutional reform and could not be considered constitutional.16 The idea is that the power to reform a constitution, a constituted power, does not include the power of producing the kind of profound changes proper to an exercise of constituent power.17 Only the constituent subject is capable of altering the Constitution, and when this happens, we are no longer speaking about constitutional reform but about constitution-making, about the creation of a new and different Constitution.18 In short, the fundamental political decisions “are a matter for the [constituent power] of the German people and are not part of the jurisdiction of the organs authorised to make constitutional changes and revisions”.19 Under this view: The boundaries of the authority for constitutional amendments result from the properly understood concept of constitutional change. The

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The transformation of the juridical authority to “amend the constitution”, granted by constitutional legislation, means that constitutional provisions can substitute for individual or multiple ones. They may do so, however, only under the presupposition that the identity and continuity of the constitution in its entirety is preserved. This means the authority for constitutional amendment contains only the grant of authority to undertake changes, additions, extensions, deletions, etc., in constitutional provisions that preserve the constitution itself. It is not the authority to establish a new constitution . . . The offices with jurisdiction over a decision on a constitution amending statute do not thereby become the bearer or subject of the [constituent power].20

Rawls reached a similar conclusion in Political Liberalism, where he embraced the “radical idea”21 that not every change introduced into the US Constitution according to Article V (its amending provision) produces a valid amendment. For Rawls, the adoption of a ‘democratic constitution’ should be understood as an expression of the constituent people of governing itself in a certain way and of fixing, once and for all, certain constitutional essentials.22 These constitutional essentials refer to: (a) fundamental principles that specify the general structure of government and the political process (such as the powers of the legislature, executive and the judiciary, and the scope of majority rule); and (b) basic political rights and liberties that legislative majorities are to respect (such as the right to vote and participate in politics, liberty of conscience, freedom of thought and of association, and the protections of the rule of law).23 Constitutional essentials are to be considered higher law (and as such, an expression of the people’s constituent power) and to be distinguished from the creations “of Congress and of the electorate”.24 Interestingly, Rawls operates under a Lockean conception of ‘constituent power’ (discussed in Chapter 5): “. . . [The] constituent power of the people sets up a framework to regulate ordinary power, and it comes into play only when the existing regime has been dissolved.”25 Must an amendment negatively affecting these constitutional essentials, asks Rawls, be accepted as valid by the Supreme Court?26 For Rawls, the answer is a clear ‘no’. He maintains that to be valid, a constitutional amendment of this sort must do at least one of the following things: alter basic institutions in order to remove weaknesses that come to light in subsequent constitutional practice (e.g., Twenty-second Amendment of the US Constitution, limiting the President to two terms); or adjust basic constitutional values to changing political and social circumstances or incorporate a broader understanding of those values (e.g., the Nineteenth Amendment, which granted women the right to vote).27 As examples, Rawls considers an amendment to repeal the First Amendment of the US Constitution in order to establish an official religion, and the suppression of the Fourteenth Amendment with its equal protection of the laws. Rawls argues that even if these amendments were enacted according to

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Article V they should be declared invalid by the judiciary. When confronted with the question of their validity, courts should say that they contradict “the constitutional tradition of the oldest democratic regime in the world”.28 The idea is that the constitution might be amended in order to make its protections more inclusive or to correct weaknesses in the basic institutions, but not to repeal or reverse its essential protections29: Should that happen, and it is not inconceivable that the exercise of political power might take that turn, that would be a constitutional breakdown, or revolution in the proper sense, and not a valid amendment of the constitution. The successful practice of its ideas and principles over two centuries place restrictions on what can count as an amendment, whatever was true at the beginning.30 Both Schmitt and Rawls defended the view that the power of constitutional reform is not unlimited, and that there can be such a thing as an unconstitutional constitutional amendment. Although Schmitt focuses on those aspects that tend to express the basic form of the polity, and Rawls stresses the recognition of fundamental rights (whose non-amendable character appears to be connected to whether they have been respected for a long period of time), they agree that there are certain aspects of the constitutional regime that cannot be the object of constitutional reform. It is not clear, and this is where these two authors differ, whether the limits created by Rawls’ ‘constitutional tradition’ also apply to the constituent power. The problem stems from Rawls’ apparent identification of constituent power with the power to amend a constitution through the ordinary amendment procedure (e.g., Article V).31 As Samuel Freeman has noted, for Rawls, “[n]ot everything that the people actually will in the exercise of their constituent power can count as a valid amendment”.32 This, combined with Rawls’ Lockean conception of constituent power as only appearing after government is dissolved makes this aspect of his approach simply puzzling: either constituent power appears every time Article V is used (which would run counter to the distinction between the constituted power of constitutional reform and constituent power)33 or it only appears after government is dissolved (which would mean that constituent power is not exercised through Article V, or that every time Article V is used, government dissolves).34 Schmitt is much clearer in this respect. For him, the power to reform the constitution and the constituent power must never be identified with each other, and the limits that apply to the former do not apply to the latter: the constituent subject can create and destroy constitutions at will. On this point I agree with Schmitt. Placing limits on the subject of constituent power – the sovereign people – amounts to a negation of democracy at the level of the fundamental laws and of the principle of democratic openness (this does not mean, of course, that the constituent subject cannot impose certain limits on itself). Accordingly, the conception of constitutional reform and democratic

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legitimacy that I present in this book is incompatible with the part of Rawls’ view that appears to hold that the constituent power is subject to substantive limits found in the existing juridical order. Interestingly, Rawls’ conception has in fact found support in the jurisprudence of the German Federal Constitutional Court. As early as in 1951, the Constitutional Court expressed that there are some principles so fundamental that they even “bind the framer of the constitution”,35 and as recently as 2010 expressed that it “may remain open due to the universal nature of dignity, freedom and equality alone [whether the Basic Law’s eternity clause] even applies to the constituent power”.36 In contrast, following Schmitt, I maintain that these limits only apply to the ordinary institutions of government, not to the constituent power (at least not when understood in light of its connections to the democratic ideal).

The judicial doctrine of constitutional substitution Of course, the idea that a constitutional amendment might be unconstitutional precedes both Schmitt and Rawls. Aristotle seems to have suggested it when he asked: “On what principles ought we to say that a State has retained its identity, or conversely, that it has lost its identity and become a different State?”37 The answer provided by Aristotle was that a polis’ identity changes when its constitution is altered as a result of an interruption of its essential commitments.38 A change in the polis’ identity cannot be considered a mere reform, but signifies the birth of a new regime. This idea is also reflected in Article 16 of the Declaration of the Rights of Man and Citizen of 1789, which reads: “Any society in which the guarantee of rights is not secured, or the separation of powers not determined, has no constitution at all.” If the existence of a constitution depends on the protection of certain rights and on the separation of powers, an attempt to suppress those principles (even an attempt that respects the formal amendment formula) cannot be understood as a mere amendment: it would amount to the destruction of the constitution as opposed to its modification.39 Courts in countries such as Germany, Colombia and India have adopted, under different grounds, the idea of unconstitutional constitutional amendments.40 This doctrine is of fundamental importance for the conception of democratic legitimacy presented here: it allows us to differentiate between mere amendments and (re)constitution-making episodes, the latter involving an exercise of constituent power and therefore requiring the deployment of highly participatory procedures of constitutional change. The German Federal Constitutional Court has, several times, asserted its jurisdiction to strike down constitutional amendments (even if abstaining from exercising that power)41 if their content contradicts the central values upon which the constitution rests. While some academics and courts seem to suggest that the origin of that power is to be found in a form of higher law principles pre-existing the constitution,42 discussions about the Court’s ability to invalidate constitu-

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tional amendments usually start with the eternity clause contained in Article 79 of the Basic Law (1949). That is to say, according to the court, the Basic Law contains an explicit limit to constitutional reform, established by the constituent power, which demarcates the distinction between ordinary and fundamental constitutional change, and provides a legal justification for the Court’s ability to review the amending power. The Constitution of India (1950), however, lacks any eternity clauses, yet the country’s Supreme Court was able to assert a jurisdiction similar to that of its German counterpart. In the landmark case of Kesavananda Bharati v Kerala (1973),43 the Supreme Court of India determined that while parliament had the power to amend any constitutional provision, it could not alter the basic structure of the constitution. For the court, the constitution’s preamble and some constitutional clauses attributed a special importance to certain principles (among the principles mentioned in the different concurring opinions were those of constitutional supremacy, the republican form of government, federalism, the welfare state, individual liberty, and secularism).44 The court developed further the doctrine of the basic structure in Minerva Mills v Union of India (1980),45 insisting that the power of constitutional reform conferred on parliament was a limited one and could not be used to repeal or abrogate the existing constitution: “Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage; therefore you cannot destroy its identity.”46 An interesting – and from the perspective of the conception of democratic legitimacy defended in this book, particularly relevant – question emerges here. Since the Indian Constitution does not contain any means for the exercise of the constituent power of the people, what would happen (and what would the basic principles of democracy require) if, at some point, a large majority of the Indian citizenry wishes to create a new constitution?47 In respect to this question, probably the most instructive case is Opinion C-551/03 of the Colombian Constitutional Court. Unlike the German Basic Law, the Colombian Constitution of 1991 lacks explicit limits to constitutional reform (i.e. eternity or unamendable constitutional clauses) and, unlike the Indian (and the German) Constitution, the Colombian Constitution allows the legislature to convene (by a majority vote subject to popular referendum) a constituent assembly that could be used for the adoption of an entirely new constitution or for the radical transformation of the existing one.48 As a result, the decision of the Colombian Constitutional Court not only had to surpass the important hurdle of developing a judicial doctrine of implicit limits to the power of constitutional reform, but it also had to recognise that those limits only applied to the constituted powers, not to the constituent subject. Opinion C-551/03 is also extraordinary in an additional way: Article 241 of the Colombian Constitution clearly establishes that the Constitutional Court can only revise proposed amendments for procedural or

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formal defects in their adoption (‘sólo por vicios de forma o procedimiento’).49 Also interesting is the fact that, in rendering its decision, the Colombian Constitutional Court openly relied on Schmitt’s conception of the constituent power. This section will examine in some detail the reasoning of the Colombian Constitutional Court in Opinion 551/03. It will also consider the ways in which the doctrine created in that decision (i.e., the doctrine of ‘constitutional substitution’) has subsequently been developed. While my conception of democratic legitimacy does not require a judiciary with the power to strike down ‘unconstitutional’ constitutional amendments (it does not even require giving judges the power to strike down legislation), the arguments presented by the Colombian Constitutional Court throw light on the distinction between ordinary and fundamental constitutional change, as well as the relationship between the latter kind of change and the exercise of constituent power. The constitutional amendments at issue in Opinion C-551/03 were supposed to come into existence after their approval in a referendum, which was originally presented as an opportunity to vote against ‘petty politics and corruption’ (contra la corrupción y la politiquería), and included 19 questions. These questions were about disparate issues, such as the modification of the electoral system, the alteration of the budget process, the regulation of political parties, the public policy on drug-related offences and the prolongation of the period in office of the governors and mayors (including those already in office).50 Not surprisingly, the supporters of the referendum argued that in assessing the constitutionality of the proposed amendments, the court had to limit itself to examine whether the formal requirements established in the amendment rule were met. Those on the other side of the controversy asked the court to examine the substance of the amendments and, among other things, argued that a constitutional amendment could be declared unconstitutional if it contradicted the fundamental principles in which the constitution rested (or if it was inconsistent with Colombia’s international obligations). Thus, an important part of the decision focused on the meaning of the phrase ‘only for procedural or formal defects’ and on whether there existed substantive limits to the power of constitutional reform. The court’s decision, written by Eduardo Montealegre Lynett, began by agreeing with the idea that the content of a proposed constitutional change, unlike the content of an ordinary law, could not be the object of judicial review. Otherwise, the court stated, the power of constitutional reform would be abolished because a constitutional change is, by definition, always inconsistent with the constitutional text that it seeks to transform (and contradict).51 Accordingly, the court’s only role with regard to a proposed constitutional reform was, just as Article 241 states, ensuring that the requirements of the amendment procedure were strictly followed. However (and here is where the court’s reasoning takes an interesting and decisive twist), in the context of constitutional reform, procedure and

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substance overlap with each other. The court began its discussion of the relationship between substance and procedure with the following line of argument. According to the court, competence (competencia, understood as the legal power of producing a determinate legal consequence) is a fundamental part of any procedure: it would be legally meaningless to follow each of the requirements of a determinate amendment procedure if one lacks the competence to produce the desired outcome.52 Thus, the court expressed, when Article 241 of the Constitution of 1991 restricts the review power of the court with regard to constitutional amendments to that of identifying procedural or formal defects, it is necessarily conferring on that body the power to examine if the institution promoting the constitutional changes is acting ultra vires.53 The contrary would mean that the court would be unable to do anything if confronted with a constitutional change adopted through strict adherence to the amendment rule, but by an organ without the competence to bring that kind of change into existence. In this way, the court was able to avoid what looked like an insuperable constraint on its faculty of reviewing the content of proposed constitutional amendments. There was, however, an additional hurdle: does the power of constitutional reform created by the Constitution of 1991 have any competencies? That is, is it susceptible of being exercised ultra vires in the sense of being used to adopt changes that are outside the scope of its authority? This was not an insignificant hurdle because if the power of constitutional reform is not subject to any limits with regard to the types of changes it is allowed to produce, then the previous argument (even if accepted) would lack any practical effects in the context of the Colombian constitutional regime. The fact that the Constitution of 1991, unlike other constitutions, did not have eternity clauses added an additional layer of complexity. In light of these facts, the court proceeded to develop the doctrine of implicit limits to the amending power. According to the court, legal scholars and courts around the world have recognised that, under any democratic constitution (even under one that does not contain explicit limits to constitutional reform), the power of constitutional reform is subject to certain substantive limits. These limits, the court continued, emerge from the nature of the power of constitutional reform as a constituted, rather than a constituent, power.54 The authorities the court cited to sustain this proposition included Schmitt’s Constitutional Theory, whose ideas are also reflected in the discussion that followed.55 The next step was to elaborate the distinction between constituent and constituted power. The court defined the former “as a power which belongs to the people, who always has the faculty of giving itself a Constitution”.56 It maintained that constituent power (poder constituyente originario57) “was not subject to juridical limits, and constitutes, above all, an exercise of the political power of those associated”58 in a political community. Quoting from an earlier decision, the court characterised constituent power as “absolute, unlimited, permanent, without limits or jurisdictional controls,

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because its acts are political and foundational (político-fundacionales) and not juridical, whose validity derives from the political will of the society”.59 To this already Schmittian approach, the court added that political communities in contemporary states always remained free to exercise, in an episodical and transitional manner, their constituent power “in order to revise or modify its fundamental political decisions and to give its juridical institutions, new forms and content. . .”60 The court then moved to explain that the power of constitutional reform (as a constituted power or as a poder constituyente derivado) was subject to several types of limits and control. The very process of constitutional reform, which includes a set of formal requirements that need to be met for an amendment to be valid, is an example of one of those limits. The question, according to the court, is not whether the power of constitutional reform, as a constituted power, is subject to legal limits (as it clearly is), but whether its competencies are also limited.61 That is, whether there are some topics, some contents, outside its scope of authority. Now, the fact that the Constitution of 1991 did not contain any unamendable clauses might suggest that the power of constitutional reform is not subject to any substantive limits. For the court, this was only partially true. That is to say, it is correct that any article of the Constitution of 1991 can be reformed and modified. However, this does not mean that one can use the amendment rule to, instead of reforming the constitution, replace it with a new and different one.62 This is the Colombian doctrine of ‘constitutional substitution’, now famous among Latin American jurists. The court then proceeded to connect the doctrine of ‘constitutional substitution’ with the text of the Constitution of 1991.63 According to the court, when Article 374 establishes that “the Constitution can be reformed”, it is not making reference to any constitution, but to the Constitution of 1991. Under that reading, the constitutional text only authorises changes to the existing constitution, rather than giving government the power to replace it with a new one. This means that the constitution must “preserve its identity as a unity”, independently of the modifications that it might suffer over time: “the power of constitutional reform may modify any part of the constitutional text, but those modifications cannot involve the suppression of the Constitution or its substitution with a new one”.64 Nowhere in the ordinary amendment rule is there an authorisation “to eliminate or substitute the existing Constitution with a different one, something that can only be done by the constituent power”.65 The court limited itself to giving one example of a ‘constitutional substitution’: “[f]or instance, the power of constitutional reform cannot be used in order to substitute the Social and Democratic State and the Republican form of government (Article 1) with a totalitarian state, a dictatorship or a monarchy, because that would mean that the Constitution of 1991 has been replaced with a different one”.66 An objection to this argument, the court expressed, is that this doctrine could have the effect of making the constitutional regime permanent, and causing a constitutional rupture, a break in legal continuity, if the Colombian

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society determines that the substitution of the Constitution of 1991 is necessary.67 This led the Colombian Constitutional Court to briefly consider, in obiter, the question that has haunted constitutional theorists for decades: what is the role of ‘the people’, as the bearer of the constituent power, after a constitution has been adopted? When a constitution is reformed, the court argued (agreeing again with Schmitt), even if the changes are adopted through a referendum, it is not the constituent subject that acts.68 What takes place in those instances is an exercise of constituted power, authorised and limited by the constitutional text. But, (as asked above) what if the entire citizenry, or a great majority of it, supports the adoption of a new and different constitution? If the constitution does not provide any means for the exercise of constituent power, one arrives at the following dilemma: either the constituent power is asphyxiated by the limits to the power of constitutional reform, or a constitutional rupture is necessary in order to allow for an exercise of constituent power to take place.69 Nevertheless, in the opinion of the court, the Constitution of 1991 attempted to ‘solve’ that problem, to ease the tension between democracy and constitutionalism through the institution of the constituent assembly convened by the legislature (Article 376), which can be used as a means for the exercise of constituent power. It is true, expressed the court, that any attempt to channel constituent power is always imperfect, because constituent power, by its very nature, “does not admit a total institutionalisation”.70 However, the court continued, by providing the possibility of convening a constituent assembly (a provision that is absent from most constitutional regimes, including those that contain eternity clauses and/or operate under the judicial doctrine of implicit limits to constitutional reform, like Germany and India), the Constitution of 1991 sought to facilitate, rather than to negate, the expression of constituent power without causing unnecessary constitutional ruptures. After defending the doctrine of ‘constitutional substitution’ and asserting its jurisdiction to examine whether the amending power had been exercised ultra vires (i.e., whether its competencies had been exceeded), the court did not find that the proposed reforms involved the creation of a new constitution. Even while some aspects of the referendum were declared invalid,71 the court concluded that the proposed changes were under the sphere of authority of the power of constitutional reform, and thus ‘constitutional’. Since 2003, when Opinion C-551/03 was rendered, the court has had the opportunity to develop the doctrine of ‘constitutional substitution’ further.72 One of the most important of these decisions took place in 2005, in a case that dealt with a reform seeking to allow the president to run for a second term. In that case, the court developed a sophisticated “juridical methodology” (the details of which are out of the scope of this chapter) to be used by a judge who is called to determine whether a constitutional substitution has taken place.73 Nevertheless, the court did not find that modifying the Constitution of 1991 to allow for presidential re-election involved a violation of the jurisdictional

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limits of the amending authority. It expressed that the constitution’s ‘essential elements’ – including the social and democratic state, as well as the republican form of government, the unitary and decentralised state, and the participatory and pluralist democracy – were preserved intact. Moreover, according to the court, allowing for presidential re-election did not contravene the republican principle of alternabilidad (generally understood as requiring that the exercise of political power is periodically alternated among different persons).74 Nevertheless, the Constitutional Court reached a different conclusion in 2010 about a proposed constitutional reform to allow the president to run for a third consecutive term. In Opinion C-141 of 2010, it declared unconstitutional an amendment (presented by popular initiative) that sought to achieve that result. After pointing out a series of irregularities in the amendment process, the court, in Opinion C-141/10, expressed the opinion that the proposed change amounted to the substitution of the Constitution of 1991, since it was in conflict with its fundamental principles, including the separation of powers, the system of checks and balances, the rule about alternation in power, the right to equality, and the general and abstract character of the laws. Interestingly, the court maintained that although the constitutional reform was presented through popular initiative (unlike in Opinion C-551/03) and would be subject to referendum, this did not mean that it amounted to an exercise of constituent power (as those mechanisms are simply part of the ordinary amendment process).75 Interestingly, one year later the highest Venezuelan court confronted an amendment seeking to remove all barriers to re-election; it not only allowed elected officials to run for a second or third time, but to run consecutively for office as many times they wished.76 As in Colombia in 2003, those who opposed the amendment argued that the ordinary process of constitutional reform could not be used to alter the fundamental principles embedded in the constitution. The Venezuelan court asserted its jurisdiction to declare a constitutional amendment ‘unconstitutional’, but maintained that allowing continuous re-election did not alter in any way the constitution’s fundamental principles and therefore would not result in the creation of a different constitution (even though Article 6 of the Venezuelan constitution contains an eternity clause that seeks to preserve the principle of alternabilidad). Moreover, the court maintained that a referendum asking the people whether they wanted to amend the constitutional text in order abolish the limits on re-election could be understood as an example of participatory democracy in action (in fact, the court stated that the decision in favour of participatory democracy was one of the “fundamental decisions” made by the constituent power that created the Constitution of 1999).77 These contrasting approaches to presidential re-election in Colombia and Venezuela are a good illustration of an idea expressed below; that is, that countries will differ about the types of changes considered fundamental or amounting to the creation of a new constitution.

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Constitutional reform and acts of the people I have suggested above that the idea that the power of constitutional reform is not unlimited complements, in important ways, the conception of democratic legitimacy presented in the previous chapter. This is by no means obvious: if the doctrine of implicit limits is about certain constitutional provisions that cannot be changed, and democratic legitimacy requires that everything in a constitution be open to change, this theory seems to run counter to the argument presented in this book. Nevertheless, what the doctrine of implicit limits does do (at least the conception of the doctrine favoured here) is to point towards a distinction between fundamental and ordinary constitutional change, placing the former exclusively in the hands of the constituent subject and stressing the distinction between constitutional reform and the exercise of constituent power. Thus, if constituent power is understood in terms of its connections to the democratic ideal, the doctrine of implicit limits provides additional footing to the argument that fundamental constitutional change should only result from a participatory and open process. Moreover (and this follows from the last point), the doctrine of implicit limits, when considered from the perspective of constituent power, suggests that there must be a correlation between the substance of an amendment and the procedure used for its adoption. In other words, the more fundamental the change, the more participatory and transparent the amendment process should be.78 The correlation, it should be stressed, is not based on making the procedures for important transformations difficult or impossible (as in the case of many constitutional regimes that accept the distinction between ordinary and fundamental constitutional change), but in making them more democratic. This does not mean that nonfundamental changes should never be adopted through participatory procedures, but that the most participatory procedures are demanded by democratic legitimacy only in the context of fundamental constitutional change (as will be seen in Chapter 8, this point is especially relevant in the context of unwritten constitutions). It is nevertheless true that the doctrine of implicit limits to constitutional reform, in its traditional formulation, may be seen as a reflection of liberal constitutionalism’s discomfort with constitutional change (particularly popular constitutional change), and the aspiration to the permanence of the constitutional regime. However, my intention here is to adopt the underlying theoretical premise of this doctrine (the distinction between constituent power and constitutional reform) and use it against this discomfort with important constitutional transformations.79 Under this approach, the fears of the constitutionalist – the ever-present possibility of popular meddling with the constitution – becomes an essential component of a democratically legitimate constitutional regime. Now, even if one accepts the idea that certain modifications are out of the scope of the ordinary power of amendment, several important questions

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remain. What counts as a fundamental constitutional change? How does one distinguish between fundamental and ordinary constitutional principles or clauses? These questions are important to my argument because, as seen earlier, only fundamental constitutional transformations must take place through a process that amounts to an exercise of constituent power. In distinguishing between the fundamental and non-fundamental, one option would be to return to Schmitt and Rawls. For them, those constitutional clauses that reflect a decision of the constituent subject regarding ‘its mode of political existence’ (to use Schmitt’s phrase) or in favour of a ‘democratic constitution’ (to use Rawls’ phrase) – such as the adoption of a ‘democratic form of government’, federalism, the decision in favour of parliamentarism or presidentialism, the amendment formula itself, the scope and limits of majority rule as a decision-making method, as well as basic liberal rights and liberties (including the protections of the rule of law) – are to be considered fundamental. The decisions from Colombia and Venezuela, briefly discussed above, also identify certain principles that might be considered fundamental (some of which are in fact very similar to those identified by Schmitt and Rawls). While those sources provide a good indication of the kind of provisions that would be considered fundamental in most contemporary societies, the distinction is highly dependent on a society’s history and political culture and will thus vary from country to country.80 In Canada, for example, as early as in 1927, Ernest Lapointe proposed an amendment formula according to which ‘ordinary amendments’ could be adopted by the federal Parliament with the consent of a majority of the provinces. For ‘fundamental amendments’ (i.e., those involving questions of provincial rights, the rights of minorities or rights affecting ‘race, language and creed’), the unanimous consent of the provinces would have been required.81 The current amendment formula, adopted in 1982, rests on similar distinctions. Under the current formula, changes touching issues related to the national languages, the monarchy (e.g., the offices of the Queen and the Governor General), provincial representation in Parliament, the composition of the Supreme Court of Canada, as well as amendments to that part of the amendment rule, require provincial unanimity (as well as approval by the two houses of the federal legislature).82 The idea that some constitutional principles are more fundamental than others is not exclusive to countries with written constitutions. For example, although not explicitly establishing a distinction between fundamental and non-fundamental constitutional change, English courts have maintained that a statute that “(a) conditions the legal relationship between citizen and state in some general overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights”,83 cannot be subject to implied repeal. Moreover, in a recent report of a Select Committee of the House of Lords, it was stated that “not all constitutional change is of equal significance”, and suggested that changes involving “fundamental constitutional issues” might appropriately be subject to special procedures

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(i.e., referendums).84 In New Zealand, too, there have been judicial expressions (and extra-judicial expressions by judges) that point in a similar direction. For instance, Lord Cooke has famously argued in favour of the existence of certain common law principles so fundamental that not even parliament can change, such as “the operation of a democratic legislature and the operation of independent courts”, and the “existence and functioning of the Crown”.85 Arguably, even within specific countries, the fundamental or nonfundamental character of constitutional principles is not static but may be in a permanent state of flux: what is considered fundamental in a particular historical context might not be considered so at another time. However, while different societies will produce and assume different conceptions of the distinction between fundamental and ordinary constitutional change, the rights and institutions (whatever specific form they take) that are necessary for the exercise of constituent power present a special case. They are constitutive of the ability of the citizenry to put into question any principle(s) of the constitutional regime and are necessary for the practice of democracy at the level of the fundamental laws. As such, they should not be subject to abolishment by ordinary governmental institutions (even through especially difficult amendment rules), and their alteration could only take place through an exercise of constituent power: only citizens can deprive themselves of their sovereignty (and in that very act deprive their constitutional regime of democratic legitimacy). Perhaps this type of situation is what the delegates to the Venezuelan Constituent Assembly had in mind when, after recognising the unlimited constituent power of the people, included in the Constitution of 1999 a provision that stated: “The people of Venezuela, loyal to the republican tradition, to their independence struggle, to peace and freedom, will not recognise [desconocerá] any regime, law, or authority that is inconsistent with the values, principles, and democratic guarantees or that erodes human rights.”86 As we have seen, the idea of having a special procedure in place for fundamental constitutional change is not alien to actual constitutional practice. But the fact that a constitution establishes special procedures for certain types of amendments does not necessarily mean that these ‘special procedures’ seek to increase opportunities for popular participation or that they can be properly understood as facilitating the exercise of constituent power. For instance, the Constitution of Spain (1978), briefly mentioned in Chapter 4, establishes two different mechanisms for constitutional change. The first procedure requires the affirmative vote of three-fifths of both houses of parliament. This procedure (Article 167), which Spanish constitutional theory calls ‘general’,87 requires a referendum if requested by one-tenth of the members of either of the houses. However, the procedure cannot be used for the total revision of the constitution, or a partial revision that affects basic constitutional principles and fundamental rights.88 In order to reform such provisions, one must recur to the ‘exceptional’89 procedure established in Article 168, which not only requires the

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affirmative vote of two-thirds of both houses, but the immediate dissolution of parliament and the calling of a general election.90 The new parliament must approve, again by a two-thirds majority, the proposed changes, and the modifications must be submitted to the electorate in a referendum. The emphasis in the Spanish Constitution seems to be (as is also the case in the previously mentioned Canadian Constitution with respect to changes that require provincial unanimity) not so much on making the process leading to important transformations more participatory (unless one sees the ideal of popular participation exhausted in a referendum),91 but on making it more difficult. In fact, the process established in Article 168 of the Spanish Constitution seems to have the purpose of making fundamental transformations close to impossible. The approach defended in this book does not seek to make the adoption of fundamental changes more difficult or unlikely, but more democratic. The idea is not that a legislature should be able to adopt fundamental constitutional changes easily (as in a flexible, written or unwritten, constitution), but that there should be procedures in place that allow citizens to become protagonists of important transformations of their juridical order. In other words, it would not mean much if a constitutional regime requires that important transformations be effected through ‘democratic’ mechanisms if these mechanisms are very difficult or impossible to activate. The constitutional regime must possess a true escape valve for the constituent power, rather than merely recognising that it continues to exist after the constitution is in effect, while at the same time ‘doing away’ with it, as most constitutional regimes do. There are at least four methods of ‘doing away’ with constituent power: (a) mystifying constituent power; (b) displacing constituent power; (c) legalising constituent power; and (d) hiding constituent power. The mystification of constituent power can easily co-exist with the other three methods. The idea is to recognise (at the level of constitutional discourse) the people’s power to adopt a new or radically modified constitution but without providing any institutional means for this power to be exercised. This is a very common approach: while most constitutionalists and politicians would agree that the people have an unlimited power to re-create their juridical order, they generally abstain from proposing mechanisms that would allow something that resembles the exercise of that power to actually take place.92 The displacement of constituent power by ordinary government takes place in countries which, like the United Kingdom and New Zealand, have an unwritten (or partially unwritten) constitution and operate under the principle of parliamentary sovereignty. Here, there is an almost complete identification of ‘parliament’ and ‘people’; the former appears as a constituent assembly in a potentially permanent session,93 and the latter rarely makes an appearance other than voting in regular elections.94 The legalisation of constituent power is similar to its displacement but occurs in the context of some written constitutions. Under this kind of arrange-

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ment, the power of amendment is left in the hands of parliament and is subject to procedural hurdles that are relatively easy to meet (as in the case of some types of amendments under the Indian Constitution), so that the amendment process (and the organ with the power of constitutional reform) becomes ‘equivalent’ to the constituent power (it is thus not surprising that through the Twenty-fourth Amendment, the Indian Parliament – unsuccessfully – attempted to declare itself the bearer of an ‘unlimited constituent power’).95 Contrast this with the hiding of constituent power, exemplified in rigid constitutions (i.e., constitutions that are very difficult to amend, such as the US Constitution). This type of constitution ‘buries’ constituent power under an amendment formula that can technically be used to change any constitutional provision, but whose requirements are extremely difficult to meet.96 Thus, the very existence of an ‘unlimited’ power of constitutional reform makes an exercise of constituent power seem unnecessary and, at the same time, the stringent requirements of the amendment procedure tend to prevent important transformations from taking place. In these four situations the result is the same: popular participation in constitutional change is reduced to a minimum, and the modification of the fundamental laws becomes a very difficult enterprise or just a special kind of ordinary law-making (as in a flexible or unwritten constitution). A constitutional regime that does away with constituent power cannot be considered legitimate from a democratic perspective. It is not enough to have a constitution in which every single disposition can be changed, if the procedures for amendment are so stringent as to make any kind of modification highly unlikely. In the same way, it is not enough to have a constitution that can easily be amended if the ordinary legislature will do all the work and highly participatory procedures are simply not part of the equation. Democracy mandates an openness that can be accessed by the citizenry; one which comes accompanied by heightened opportunities for popular participation (in this respect, the ideals of popular participation and democratic openness are radically intertwined, and their separation sometimes becomes unstable). To be democratically legitimate, a constitutional regime must not mystify, displace, legalise or hide constituent power; on the contrary, it must provide a real possibility for its exercise, thus allowing citizens to see themselves as the real (or potential) authors of the constitution. Accordingly, those constitutions (like the Colombian Constitution of 1991) that provide legislative majorities with the initiative to convene an extraordinary constitution-making assembly are a step in the right direction but, as will be seen in the next chapter, one that does not go far enough.

Concluding remarks This chapter defended a distinction between ordinary and fundamental constitutional changes. The theory of implicit limits to the power of constitutional reform, defended by Schmitt and Rawls, as well as the judicial doctrine of

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constitutional substitution developed by the Colombian Constitutional Court, provide important insights as to the ways in which that distinction could be made, as well as to the relationship between that distinction and the theory of constituent power. However, distinguishing between ordinary and fundamental constitutional change only takes us halfway to the type of constitutional regime that can meet the demands of democratic legitimacy. In other words, what kind of mechanism, what kind of processes, should be available to citizens if they wish to engage in fundamental constitutional transformations, to exercise their constituent power and substitute the existing constitutional regime with a new one? What type of ‘amendment rule’ is required by democratic legitimacy in the context of fundamental constitutional changes? Those questions will be answered in the next chapter. As we will see, only a ‘weak’ form of constitutionalism, one that is freed from Lycurgian tendencies and that does not see constituent power as a threat, can ever come to enjoy democratic legitimacy.

Notes 1 The case of Canada in 1982 is telling in this respect. A wealthy democratic country engaged in important constitutional transformations through a process that was driven from the top down and in which the participation of citizens was limited to occasional consultation in committees that lacked decisionmaking power. See generally Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People?, Toronto: Toronto University Press, 2004. 2 An example of this kind is that of Puerto Rico, which adopted a constitution through an elected ‘constituent assembly’ and a series of referendums, but whose content was limited beforehand by the US Congress. See generally José Trías Monge, Historia Constitucional de Puerto Rico, Volume III, San Juan: Editorial de la Universidad de Puerto Rico, 1982. More recent examples include that of Iraq and Afghanistan. For a discussion, see Andrew Arato, Constitution Making Under Occupation: The Politics of Imposed Revolution in Iraq, New York: Columbia University Press, 2009. 3 Note that the emphasis here is not on the mechanisms that could be used in order to enforce implicit limits on constitutional change (e.g., judicial review of constitutional amendments) but in the realisation that there are some parts of a constitution of a higher hierarchy than others. 4 Carl Schmitt, Constitutional Theory, Durham: Duke University Press, 2008, pp 75–80. See also, Jeffrey Seitzer, ‘Carl Schmitt’s Internal Critique of Liberal Constitutionalism’, in David Dyzenhaus (ed), Law as Politics: Carl Schmitt’s Critique of Liberalism, Durham: Duke University Press 1998, p 290. 5 Schmitt, Constitutional Theory, pp 78–79. 6 “All state authority stems from the people” and “The German Reich is a Republic”. Ibid., p 77. 7 Ibid., pp 77–78. 8 Ibid., p 150. This point is especially relevant when a democratic amendment formula is seen as one of the guarantees of democratic legitimacy. The problem of amending the ‘amendment formula’ through the amendment formula itself has also been approached from the perspective of the logic and coherence of a constitutional system. See Alf Ross, ‘On Self-Reference and a Puzzle in Constitutional Law’, Mind: A Quarterly Review of Psychology and Philosophy,

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Vol. LXXVIII, No. 309 (1969). See also Peter Suber, The Paradox of SelfAmendment: A Study of Law, Logic, Omnipotence, and Change, New York: Peter Lang Publishing, 1990. The recent constitutional changes in Hungary, in which an amendment rule that required a 4/5 majority for the creation of a new constitution, was altered by a 2/3 majority (that is, the majority required for ordinary amendments) exemplify this problem. For a discussion, see Andrew Arato, ‘Post Sovereign Constitution-Making in Hungary: After Success, Partial Failure, and Now What?, 2011. Online. Available http://lapa.princeton.edu/eventdetail. php?ID=473> (accessed 9 September 2011). Schmitt, Constitutional Theory, p 67. Schmitt distinguished between ‘constitutional elimination’, ‘constitutional annihilation’ and ‘constitutional change’. Constitutional elimination involves the alteration of the substantive core of the constitution, constitutional annihilation involves a change in the identity of the constituent subject, and constitutional change a revision of the constitutional laws (one that leaves the fundamental political decisions intact). Schmitt, Constitutional Theory, p 147. Ibid. Of course, the principle protected by Article 1 could be changed while leaving the text of that Article untouched. That is, by inserting into the constitution several clauses that result in its abolition for all practical purposes. Ibid., pp 79–80. Ibid. This statement is reminiscent of George Lawson’s view with respect to the limits of parliamentary sovereignty (for a brief discussion, see Chapter 5 of this book). Ibid., p 152. As Dietrich Conrad has expressed: “Such provisions [that establish explicit limits on the power to reform a constitution] are valuable indications that the power to amend does not by the nature of things participate in the supposed omnipotence of constituent sovereignty but is a constituted, and hence legally definable, power.” Dietrich Conrad, ‘Limitation of Amendment Procedures and the Constituent Power’, The Indian Year Book of International Affairs, India: Madras, 1966–1967, p 379. Nevertheless, Conrad argued that the ambiguity of these kinds of clauses makes them “little more than guide-posts to systematic interpretation and doctrine”. Ibid. Consider for instance that in France, commentators disagree on the correct interpretation of an eternity clause that reads: “The republican form of government shall not be the object of an amendment” (Art 89 of the French Constitution, 1958). For some, this clause should be understood only as a prohibition of the restoration of monarchy; for others, it should be interpreted more broadly, as including other principles such as secularism, the rule of law, etc. For a brief discussion, see Claude Klein, ‘A Propos Constituent Power: Some General Views in a Modern Context’, in Antero Jyränky (ed), National Constitutions in the Era of Integration, The Hague: Kluwer Law International, 1999, p 39. See for example the Federal Constitution of the Swiss Confederation (1999), Article 193: “A total revision of the Federal Constitution may be proposed by the People or by one of the Chambers, or may be decreed by the Federal Parliament.” Schmitt, Constitutional Theory, p 152. Ibid., p 151. Schmitt distinguished between constitution-making and constitutional change; ideas he considered qualitatively different “because in the first instance the word ‘constitution’ denotes the constitution as complete, total decision, while in the other instance it denotes only the individual constitutional law”. Ibid., p 80. Ibid., pp 152, 74. Ibid., pp 150–151.

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21 Samuel Freeman, ‘Political Liberalism and the Possibility of a Just Democratic Constitution’, Chicago-Kent Law Review, 1994, vol 69, p 662. 22 John Rawls, Political Liberalism, New York: Columbia University Press, 2005, p 232. 23 Ibid. 24 Ibid., p 231. On this point, Rawls follows Bruce Ackerman’s theory of dualist democracy. However, Ackerman rejects the possibility of an unconstitutional constitutional amendment. See Bruce Ackerman, ‘Constitutional Politics/Constitutional Law’, Yale Law Journal, 1989, vol 99, pp 469–470. 25 Rawls, Political Liberalism, p 231. 26 Ibid., pp 233, 238. 27 Ibid., pp 238–239. For a similar view, see Walter F. Murphy, ‘Merlin’s Memory: The Past and Future Imperfect of the Once and Future Polity’, in Sanford Levinson (ed), Responding to Imperfection, Princeton: Princeton University Press, 1995, pp 173–174. 28 Rawls, Political Liberalism, p 239. The doctrine of implicit limits to constitutional reform was rejected (without much discussion) by the US Supreme court at the beginning of the twentieth century. See National Prohibition Cases, 253 US 350 (1920); Leser v Garnett, 258 US 130 (1922); Coleman v Miller, 307 US 433 (1939). Nevertheless, it has made many appearances in American constitutional theory. One of the first to propose it was John Calhoun (Vice-President under Andrew Jackson). Writing before the Civil War, Calhoun argued that the power of Congress to amend the Constitution must not “radically change the character of the Constitution, or the nature of the system”. John C. Calhoun, The Works of John C. Calhoun, New York: Appelton, 1968, p 301. The debate reachedits climax during the attempt to include in the Constitution an amendment prohibiting the desecration of the American flag. See for example Jeff Rosen, ‘Was the Flag Burning Amendment Unconstitutional?’, Yale Law Journal, 1991, vol 100, p 1073 and Eric A. Isaacson, ‘The Flag Burning Issue: A Legal Analysis and Comment’, Loyola of Los Angeles Law Review, 1992, vol 23, p 591. For a critique of this kind of argument, see John R. Vile, ‘The Case Against Implicit Limits’, in Responding to Imperfection. A defence of the idea of implicit limits can also be found in William L. Marbury, ‘The Limitations upon the Amending Power’, Harvard Law Review, 1920, vol 33, p 225: “It may be safely premised that the power to ‘amend’ the Constitution was not intended to include the power to destroy it.” See also Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America, Boston: Ginn and Company, 1950, pp 144–145. 29 Ibid., pp 238–239. 30 Ibid., pp 405–406. 31 “We assume the idea of a dualist constitutional democracy found in John Locke: it distinguishes the people’s constituent power to form, ratify, and amend the constitution from the ordinary power of legislators and executives in everyday politics. . .” Ibid., pp 405–406. 32 Freeman, ‘Political Liberalism and the Possibility of a Just Democratic Constitution’, p 662. And this is true even when, according to Rawls in his response to Habermas, “whether modern liberties are incorporated into the constitution is a matter to be decided by the constituent power of a democratic people, a familiar line of constitutional doctrine stemming from George Lawson via Locke”. Rawls, Political Liberalism, p 414. This seems to suggest that for Rawls, even when constitution-makers, in the exercise of constituent power, determine what the constitutional essentials are, they cannot abolish them later through the exercise of that same power (because any attempt to do so should be struck down by the courts).

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33 Ibid., p 231. One could understand Rawls as adopting the distinction made by some European and Latin American constitutionalists between pouvoir constituant originaire and pouvoir constituant derivé. For a brief explanation of this distinction, see note 57 of this chapter. 34 I do not consider here the possibility of amending the US Constitution through a Convention called by two-thirds of the state legislatures and ratified by three-fourths of said legislatures, as this method has never been used and there is no indication that Rawls was referring to it when writing about Article V. For a discussion, see Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How the People can Correct It), New York: Oxford University Press, 2006. 35 The Southwest Case, 1 BverfGE 14 (1951), in Walter F. Murphy and Joseph Tanenhaus (eds), Comparative Constitutional Law, New York: St. Martin’s Press, 1977. The German Constitutional Court was approvingly quoting a decision of the Bavarian Constitutional Court. 36 Lisbon Case, BverfG, 2 BvE 2/08, paras 216–218. Interestingly, in a 2006 decision, the Venezuelan Supreme Court of Justice maintained that the constituent power was not subject to any limits, except “the rights inherent to each person that emerge from their human dignity” (los derechos inherentes a la persona humana y derivados de su propia dignidad). Decision No. 06-0737, Supreme Court of Justice (Constitutional Chamber). 37 Aristotle, The Politics of Aristotle, Oxford: Oxford University Press, 1962, p 98. Quoted in Gary Jeffrey Jacobsohn, ‘An Unconstitutional Constitution? A Comparative Perspective’, International Journal of Constitutional Law, 2006, vol 4(3), p 460. 38 Jacobsohn, ‘An Unconstitutional Constitution?’, p 478. 39 Pedro de Vega, La Reforma Constitucional y la Problemática del Poder Constituyente, Madrid: Técnos, 1985, p 268. In fact, modern French constitutional theory has developed the doctrine of ‘constitutional fraud’ (fraude à la Constitution) to identify the act of using the formal amendment rule in order to create a different constitutional regime. Ibid., p 291. A relevant distinction between ‘amendment’ and the fundamental transformation of a constitution has been defended by Walter Murphy. For him, “The word amend comes from the Latin emendere, to correct. Thus an ‘amendment’ corrects or modifies a system without fundamentally changing its nature – that is, an amendment operates within the boundaries of a constitutional order.” Walter Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order, Baltimore: The Johns Hopkins University Press, 2007, p 506. See also Sotirios A. Barber, On What the Constitutions Means, Baltimore: The Johns Hopkins University Press, 1984, p 43. 40 I examined the doctrine of unconstitutional constitutional amendments in Germany, India, the United States and Colombia in Joel Colón-Ríos, ‘¿Pueden Haber Enmiendas Constitucionales Inconstitucionales: Una Breve Mirada al Derecho Comparado?’, Revista Jurídica Universidad Interamericana de Puerto Rico, 2008, vol 42, p 207. See also Richard Albert, ‘Nonconstitutional Amendments’, Canadian Journal of Law and Jurisprudence, 2009, vol 22(2); Jacobsohn, ‘An Unconstitutional Constitution?’ 41 See The Klass Case, 30 BVerGE 1 (1970) and The Electronic Eavesdropping Case, 109 BverfGE 279 (2003). For a more recent discussion, see the Lisbon Case. 42 In addition to the previously mentioned Southwest Case, see for example Article 117 Case, 3 BverfGE 225 (1953). More generally, see Matthias J. Herdegen, ‘Natural Law, Constitutional Values, and Human Rights’, Human Rights Law Journal, 1998, vol 19, p 37. 43 Kesavananda Bharti Sripadagalvaru v State of Kerala, 1973 (SUP) SCR 0001.

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44 For a discussion, see Rory O’Connel, ‘Guardians of the Constitution: Unconstitutional Constitutional Norms’, Journal of Civil Liberties, 1999, vol 4, p 69. 45 Minerva Mills Ltd v Union of India, AIR 1980 SC 1789. 46 Ibid., 1798. 47 This problem was raised by the parties in the Indian cases discussed above, and was also mentioned in the earlier case of Golaknath v Punjab, AIR 1967 SC 1643 (decided before the doctrine of the basic structure was developed), where it was stated: “If it is desired to abridge the Fundamental Rights, the legal method is that the State must reproduce the power which it has chosen to put under restraint. Parliament must amend Art 368 to convoke another constituent assembly, pass a law under item 97 of the List 1 of Schedule 7 to call a constituent assembly, and then that assembly may be able to abridge or take away the fundamental rights. Any other method must be regarded as revolutionary.” 48 Constitution of Colombia (1991), Article 376. This provisions states that the competencies of the constituent assembly may be determined ‘by law’. This is not necessarily inconsistent with the theory of constituent power, as long as it is understood that any limits to the assembly’s competencies are to be decided by the constituent power (who, as the Kompetenz-Kompetenz, can also authorise the assembly to draft an entirely new constitution without been subject to any specific limits). 49 Constitution of Colombia (1991), Article 241. Moreover, its Article 379 (which is part of the Constitution’s amendment rule) stated that proposed constitutional changes could only be declared ‘unconstitutional’ if they violated the requirements of the established amendment process. 50 The referendum was authorised by Law 796 of 2003. 51 Opinion C-551/03, para 13. 52 Ibid., para 22. 53 Ibid., para 23. 54 Opinion C-551/03, para 28. 55 The Court also referred to the works of Pedro de Vega, also quoted in Decision No. 17 of the Supreme Court of Justice of Venezuela, Alf Ross, and Germán Bidart Campos. De Vega, La Reforma Constitutional; Alf Ross, ‘On Self-Reference and a Puzzle in Constitutional Law’; Germán Bidart Campos, Historia e Ideología de la Constitución Argentina, Buenos Aires: Ediar, 1969. 56 Opinion C-551/03, para 29. 57 Latin American jurists (as their French counterparts) recur to the distinction between “constituent power proper” (pouvoir constituant originaire or poder constituyente originario) and “constituted constituent power” (pouvoir constituant derivé and poder constituyente derivado). The former refers to the sovereign power of the people to create a new constitutional regime; the latter refers to the power to reform the constitution according to the procedures created by the constituent subject. See Humberto Nogueira Alcalá, ‘Consideraciones sobre Poder Constituyente y Reforma de la Constitución en la Teoría y la Práctica Constitucional’, Revista Ius et Praxis, 2009, vol 15(1), p 229; Luis Sánchez Agesta, Principios de Teoría Política, Madrid: Editora Nacional, 1983; Rodrigo Borja, Derecho Político y Constitucional, México: Fondo de Cultura Económica, 1991; Carlos Fayt, Derecho Político, Buenos Aires: Ediciones Ghersi, 1982; Germán Bidart Campos, Derecho Político, Buenos Aires: Aguilar, 1967. 58 Opinion C-551/03, para 29. 59 The court was citing approvingly its Opinion C-544/92. Opinion C-551/03, para 29. 60 Ibid. (Emphasis added.) 61 Ibid., paras 31–32. 62 Ibid., para 33.

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63 This attempt to ground the doctrine of constitutional substitution in the literal words of the Constitution of 1991 (instead of grounding it solely on the theory of constituent power) has been criticised by some academics. See for example Gonzálo Ramírez Cleves, ‘Reformas a la Constitución de 1991 y su Control de Constitucionalidad: Entre Democracia y Demagogia’, Revista Derecho del Estado, 2008, vol 21, p 169. 64 Opinion C-551/03, para 34. 65 Ibid. Moreover, the court stated that the drafters of the Constitution of 1991 had the option of allowing for the ‘total revision’ of the constitution, like the Spanish or Swiss Constitutions. This reference, however, is in tension with the Schmittian conception, which maintains that even in the cases of constitutions that contemplate their ‘total revision’, the power of constitutional reform is a constituted, and therefore limited, power. See Schmitt, Constitutional Theory, p 152. 66 Opinion C-551/03, para 34. Needless to say, this example echoes Schmitt. 67 Opinion C-551/03, para 40. 68 On this point, see de Vega, La Reforma Constitutional, p 302. 69 Opinion C- 551/03, para 40. 70 Ibid. 71 The court did strike down several aspects of the proposed referendum, including the requirement of answering ‘yes’ or ‘no’ to a set of disparate issues in one of the referendum questions (as opposed to being able to vote separately on each issue), on the basis that it violated the “liberty of the elector”, the introductory notes at the beginning of each question, on the basis that they tended to promote the ‘yes’ vote, and invalidated one of the questions since it was “alien” to the referendum’s main topic. 72 These decisions include Opinion C-1040/05, Opinion C-970/04, Opinion C-971/04, Opinion C-1200/03, Opinion C-757/08, Opinion C-588/09 and, more recently, Opinion C-141/10. For a more detailed discussion of these decisions, see Gonzalo A. Ramírez Cleves, ‘El Control Material de las Reformas Constitucionales Mediante Acto Legislativo a Partir de la Jurisprudencia Establecida en la Opinion C-551 de 2003’, Revista Derecho del Estado, 2006, vol 18, p 3. 73 See Opinion C-1040/05, para 7.10.3. 74 However, the Legislative Act that brought these constitutional changes into existence contained a provision that granted the State Council (Consejo de Estado) the power to adopt the laws and regulations needed to implement the amendments (in the event that Congress failed to adopt them or if they were declared unconstitutional). The court considered this provision to confer the State Council an extraordinary legislative power, one which would not be subject to political or judicial control. That is, it would create a non-elected extraordinary (temporary) legislator that would adopt norms binding to all citizens. This, according to the court, was inconsistent with the principle of constitutional supremacy and the separation of powers, essential components of the identity of the Constitution of 1991. Accordingly, it would have the effect of substituting the constitution with a new one, and therefore, it was an act that lay outside the scope of the amending power. Ibid., para 7.10.4.3. 75 Opinion C-141/10, para 1.3. 76 Supreme Court of Justice of Venezuela (Constitutional Chamber), Decision No. 53, 3 February 2009. 77 Decision No. 53, Section V. 78 As this shows, procedure and substance are not always easily separable from each other: it is precisely because of the substance of the amendment that a special procedure is required. See William F. Harris II, The Interpretable Constitution, Baltimore: The Johns Hopkins University Press, 1993, p 175.

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79 On the discomfort with democracy, see Roberto Mangabeira Unger, What Should Legal Analysis Become, London: Verso, 1996. See also Jacques Ranciêre, Hatred of Democracy, London: Verso 2006. 80 In his study of Article V of the US Constitution, Lester B. Orfield provided a list of more than 25 topics that had been identified as outside the scope of the amending power by different authors and lawyers during the first part of the twentieth century in the United States (e.g., the establishment of a monarchy, the creation of nobility titles, an amendment creating special taxes for certain states). See Lester B. Orfield, The Amending of the Federal Constitution, Ann Arbor: University of Michigan, 1942, pp 87–88, n 12. 81 See Russell, Constitutional Odyssey, p 55. 82 Constitution Act, 1982, 41(a)–(e), Schedule B to the Canada Act 1982 (UK), 1982, c 11. The provisions of the Charter of Rights and Freedoms (right to vote, mobility rights and others) that are put out of the scope of the legislative override (Section 33) and thus give final decision-making power to the courts over certain topics (in the absence of an amendment) also point towards certain constitutional principles that are considered fundamental. 83 Thoburn v Sunderland City Council [2003] QB 151 at [62]. For critiques of these moves towards fundamental principles or to a ‘common law constitution’ that limit parliamentary sovereignty in the United Kingdom, see Adam Tomkins, ‘The Rule of Law in Blair’s Britain’, University of Queensland Law Journal, 2007, vol 26, p 225 and Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates, Cambridge: Cambridge University Press, 2010. 84 Select Committee on the Constitution, House of Lords, 15th Report of Session 2010–12, paras 13, 101. 85 Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, 398 (CA); Sir Robin Cooke, ‘Fundamentals’, New Zealand Law Journal, 1988, 164. As mentioned in Chapter 3, New Zealand has attempted to limit its own power to make certain fundamental constitutional changes through simple majority rule: Section 268(2) of the Electoral Act entrenched certain provisions of the Electoral Act 1993 and of the Constitution Act 1986 (provisions that, among other things, protect the right to vote and establish the term of Parliament), and established that they can only be repealed or amended by 75 per cent of all the members of the House of Representatives, or by a majority of the electors in a referendum. 86 Constitution of Venezuela (1999), Article 350. 87 De Vega, La Reforma Constitucional, p 143. 88 A similar approach is followed by Article 74 of the South African Constitution, which involve special requirements when an amendment seeks to alter the fundamental principles contained in Section 1. 89 De Vega, La Reforma Constitucional. 90 Many constitutions distinguish between reform, revision and mere amendments (for example, reforms and revisions tend to be associated with general constitutional changes that affect different parts of the constitution, and amendments about discrete changes to individual constitutional clauses) and require different procedures for each type of change. This distinction is common in Latin American Constitutions (see for example Title IX of the Constitution of Venezuela, which establishes a different set of procedures for ‘amendments’, ‘reforms’ and for the transformation of the state or the adoption of a new constitution). 91 The limits of the referendum as a mechanism of popular participation were discussed in Chapter 4. 92 See for example Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order.

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93 For the idea of the Westminster Parliament as a constituent assembly in permanent session, see Alexis de Tocqueville, Democracy in America, New York: New American Library, 1956, p 74. 94 For a history and discussion of the identification of ‘Parliament’ and ‘people’ in British constitutionalism, see Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America, New York: Norton, 1988. 95 “. . . Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. . .” In fact, the Supreme Court of India adopted the theory of implicit limits to constitutional reform in order to control the power of amendment in a relatively flexible constitution (see Kesavananda Bharti Sripadagalvaru v State of Kerala). Insisting in its ‘unlimited constituent power’, Parliament adopted the Forty-second Amendment in 1976, stating in part: “No amendment. . .shall be called into question in any court on any ground. . .For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.” This provision was subsequently invalidated in Minerva Mills Ltd v Union of India, supra note 45. 96 See Andreas Kalyvas, ‘Book Review’, Constellations, 2001, vol 8(3) (2001), p 414.

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The beginnings of weak constitutionalism

Constituent power should be understood as the ‘missing link’ in the debate about constitutionalism and democracy. After all, that debate is, in the last instance, about the ways in which constitutionalism appears to negate democracy at the level of the fundamental laws; about the ways it might hinder the people’s faculty of making and remaking constitutions. It is true that constitutionalism can be made consistent with the idea that the authority of a constitution is derived from the sovereign people, and that the demos has (at least theoretically) the right to have any constitution it wants. The problem, as we saw in Chapter 2, is that after a constitution is in place, constitutionalism’s main function (that of limiting political power) runs counter to the idea of creating opportunities for ordinary citizens to make episodical appearances and engage in important constitutional transformations. In other words, as a matter of actual political practice, the people’s ultimate political power is also seen as the object of constitutionalism’s limiting role.1 What constituent power does is point to some instances in which a departure from constitutionalism is warranted; episodes in which the citizenry exercises its democratic right to (re)create the constitutional regime under which it lives. A democratic constitutional theory, like the one that this book has been attempting to advance, would thus have an important place for the concept of constituent power. It would defend the idea that a constitutional regime should provide an opening for constituent power to manifest when important constitutional transformations are needed and would make significant demands on constitutional regimes. It would require a set of political arrangements according to which episodes of fundamental constitutional change only take place through highly participatory procedures, and a constitution that gives citizens the means to activate those procedures. That is to say, a democratic constitutional theory would see citizens as the potential authors of a new or importantly transformed constitutional regime, and propose a set of constitutional forms that allow them to engage in constituent activity. A constitution consistent with such a theory would conform to the conception of democratic legitimacy defended in Chapter 6; it would involve a radical transformation of the ideal of constitutionalism and an important re-examination of the current ‘balance’ between constitutionalism and democracy. In short, a democratically

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legitimate constitutional regime would only be consistent with a weak constitutionalism. This chapter will develop this alternative conception of constitutionalism and consider its institutional implications. We begin by exploring the main characteristics of weak constitutionalism. As will be seen, this is the conception of constitutionalism implicit in the previous discussions about democracy, constituent power and democratic legitimacy. We then consider the reasons why a constitutional regime based on a weak form of constitutionalism would require fundamental constitutional changes to take place through extraordinary bodies (as opposed to the ordinary institutions of government, such as legislatures). Special emphasis will be given to the Constituent Assembly (CA) convened ‘from below’, present in some Latin American constitutions. This mechanism, it will be argued, may facilitate the exercise of constituent power when the constitution is to be transformed in important ways, and a constitution that contains it would have a strong claim to democratic legitimacy. Finally, the chapter maintains that even though the CA convened ‘from below’ is normally associated with written and supreme constitutions, it has a place in constitutional regimes based on an unwritten constitution. Although the adoption of such a mechanism would have important consequences for the doctrine of parliamentary sovereignty, both written and unwritten constitutions may operate under a weak form of constitutionalism and can thus aspire to democratic legitimacy.

Weak constitutionalism Weak constitutionalism seeks to alter the traditional balance between constitutionalism and democracy in several ways. First, unlike the conception of constitutionalism under which most constitutional regimes operate, weak constitutionalism does not maintain the precedence of the constitutional forms over the constituent power of the people. It rests on the idea that there is a permanent tension between constitutional forms and constituent power, between constitutionalism and democracy. Instead of privileging the supremacy of the former by adopting a constitution that is difficult or impossible to change, it seeks to leave the door open for the future re-emergence of constituent power. It thus rests on a radical rejection of traditional constitutionalism’s aspiration to the permanency of the constitutional regime. In proceeding in this way, weak constitutionalism does not seek to resolve the tension between constitutionalism and democracy. On the contrary, weak constitutionalism recognises this tension as an inevitable consequence of having a constitution and makes it even more obvious by giving citizens the institutional means to act together to take precedence over the constitutional text, even if only episodically.2 Weak constitutionalism does not see constitutional change as a “dramatic and threatening occurrence that, given its nature, should be avoided by all means or at least postponed at much as possible” (as the Venezuelan Supreme Court of Justice

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once wrote about the prevailing attitude to constitutional reform),3 but as part of a continuing effort by the citizenry to construct a more just constitutional regime. Second, weak constitutionalism rests on a distinction between the two dimensions of democracy and, instead of seeing democracy exhausted at the level of daily governance, aspires to the realisation of democracy at the level of the fundamental laws. When an important constitutional transformation is needed, it mandates that changes to the constitution are made through the kind of processes present during a democratic constitution-making episode. Weak constitutionalism assumes that there is an important aspect of the democratic ideal that cannot be exhausted or constrained by a constitution, a dimension of democracy that is episodical by nature and that always escapes the very constitutional forms it might seek to transform. The issue, of course, is not about a form of constitutionalism that requires the direct vote of the electorate every time a constitutional change is to become valid. Democracy at the level of the fundamental laws is not simply about a process in which experts draft a constitution and then submit it to a ‘yes’ or ‘no’ vote in a referendum (which does not necessarily promote discussion and debate among citizens).4 Instead, it requires mechanisms through which citizens are allowed to participate in proposing, deliberating and deciding upon the content of the constitution. Third, weak constitutionalism mandates a constitutional regime consistent with the basic principles of democratic openness and popular participation. It is a form of constitutionalism that, instead of insisting on the preservation of the constitutional forms, seeks to create the conditions suitable for their transformation. While some of those forms might be constitutive of the citizenry’s ability to call into question and alter the constitutional regime (as in the case of basic political rights), weak constitutionalism does not attempt to put limits on the constituent power. It rests instead on the assumption that a democratic people, acting through inclusive and participatory procedures, would not seek to constrain their future ability to participate in the creation or re-creation of their constitution. In this respect, weak constitutionalism reinforces the idea that a constitution’s ‘openness’ must always be of a democratic nature, and should be accessible to the citizenry acting through procedures that come as close as possible to the ideal direct-assembly democracy. Fourth – and this feature in a way encapsulates all the others – weak constitutionalism does not see constituent power as a threat. This means two different things. As noted above, it means that weak constitutionalism does not look at fundamental constitutional change with suspicion, but as providing an opportunity to improve the established constitutional regime, extend its protections and come closer to a society of equals. Of course, this is not to say that every exercise of constituent power will result in a more just and inclusive constitution. As Habermas has noted, an open constitutional regime is not immune to “contingent interruptions and historical regressions, [but] can be understood in the long run as a self-correcting learning process”.5 It also

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means that weak constitutionalism rejects the Lockean view of the exercise of constituent power as restricted to situations of extreme governmental abuse or as a one-time event that is forever channelled through the ordinary process of constitutional reform. In contrast, it accepts the Sieyesean and Schmittian conceptions of constituent power as not being absorbed by the constitutionmaking act and as susceptible to being exercised at any moment after a constitution is in place. In this respect, it is a conception of constitutionalism that seeks to comply with the basic condition of democratic legitimacy: it leaves the door open for the future exercise of constituent power, for futures episodes of democratic re-constitution. Fifth, weak constitutionalism does not approach all constitutional changes in the same way. It assumes that some changes are more fundamental than others and that some apparently partial modifications of the constitution may amount to the creation of a new constitutional regime. Accordingly, weak constitutionalism is highly consistent with the idea, considered in Chapter 7, of implicit limits to constitutional reform (even though, as we will see later, it would not necessarily attribute to judges the power to separate the fundamental from the non-fundamental). It not only recognises that the constitution should be open to change, but also that the procedures to be used for its transformation are related in important ways to the nature of the changes at issue. The more fundamental the change, the more likely it amounts to a re-constitution and the more necessary it is for it to take place through a highly participatory procedure. If a constitutional regime is altered in fundamental ways through the ordinary institutions of government, its democratic legitimacy would immediately be called into question. This is partly why weak constitutionalism comes accompanied by the idea that important constitutional transformations should not be the work of ordinary institutions. These institutions are designed to operate at the level of daily governance, where intense episodes of popular participation are not always possible. Weak constitutionalism is thus not consistent with a constitution that, just like ordinary law, can be changed by democratic majorities if the term ‘democratic majorities’ simply refers to a majority of state officials sitting in a legislature. Sixth, weak constitutionalism does not see citizens simply as human beings with rights who participate in politics through the election of officials every few years, but as those who are allowed to take part in the (re)positing of the norms that govern the state. In other words, a citizen is someone who participates in the democratic legitimation of the constitutional regime and knows that, despite all the imperfections of such an order, it can be changed. Not only is this conception of the citizen more consistent with democracy, but it might also result in citizens developing a sense of identification with the constitutional regime, seeing the constitution as theirs – as their work-inprogress – and not simply as the embodiment of the will of a mysterious ‘People’ or the product of judicial interpretation.6 As will be argued in the next two chapters, when important constitutional transformations are needed, this active citizenry engages in different types of informal (and sometimes

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even ’illegal’) political practices in order to create the political climate necessary for constituent power to be activated. Finally, a constitutional regime based on either a written or unwritten constitution can operate under a weak form of constitutionalism. It is not the ‘writtenness’ or ‘unwrittenness’ of the constitution that matters (or the fact that it can or cannot be ordinarily amended in the same way as an ordinary law)7 but the way in which it approaches constituent power. However, as we will see below, weak constitutionalism would require a partial reconstruction of the doctrine of parliamentary sovereignty.

Exercising constituent power or weak constitutionalism’s mechanisms As we have seen in previous chapters, the amendment processes of most written constitutions seek to make constitutional change difficult and unlikely. While unwritten constitutions normally fare better in this respect, they, just as their written counterparts, allow fundamental constitutional changes to occur without any significant degree of public involvement. Even those constitutions that require a government-initiated referendum before some (or all) constitutional amendments come into effect, fail to provide ordinary citizens with the means to propose, deliberate and decide upon the content of the fundamental laws. This traditional approach to constitutional reform is a reflection of, on the one hand, constitutionalism’s aspiration to permanency and, on the other, constitutionalism’s fear of constitutional change (particularly if it involves ordinary people meddling with the content of the constitution). In contrast, weak constitutionalism mandates that a constitution remains open to change and that fundamental constitutional transformations take place through the most participatory procedures possible; in other words, through an exercise of the people’s constituent power. But what could it mean for the people to exercise constituent power? Previous chapters of this book have suggested that an extraordinary assembly, elected and convened with the specific purpose of drafting a new constitution, could be understood as facilitating the exercise of constituent power. Nevertheless, it is clear that such an assembly, just as an ordinary legislature, is a representative body composed of delegates elected by the people, but it is not the people.8 In fact, the very idea of the people ‘giving itself a constitution through the exercise of constituent power’ has been challenged by many constitutional and political theorists. It has been argued, for example, that this position is based “on an unacceptable political mythology”, and that any act of ‘the people’ (a people that is only capable of action through representation) is determined by prior electoral and procedural rules that must be given to the citizenry by someone else.9 In what sense, then, can it be argued that an extraordinary assembly may be used to facilitate the exercise of constituent power by the people? After all, the members of a contemporary society cannot spontaneously come together and give themselves a new constitution and so,

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in that sense, there is no such thing as an exercise of constituent power by the people, at least not in the modern world. However, there are some rules and procedures that might come closer, even if just a little closer, to the idea of a citizenry giving itself a constitution (even if these rules and procedures were not themselves adopted through a highly participatory process). For example, an elected CA activated by a popular referendum, for the specific and sole purpose of deliberating on the creation of a new constitution, might be closer (although, as we will see shortly, not as close as possible) to an exercise of the people’s constituent power than an ordinary legislature engaging in profound constitutional changes. The idea that extraordinary assemblies are somehow closer to the people than the ordinary legislative body is, of course, nothing new; indeed, it was present in the great revolutions of the seventeenth and eighteenth centuries. The ‘higher’ nature of extraordinary assemblies was associated with the Lockean idea that after a long train of abuses, the people had the right to create a new form of government and that, in order to do so, a special assembly was needed. It was also connected with the view that a legislature is elected with the purpose of adopting ordinary laws, not to engage in profound transformations of the juridical order under which it operates. It was thus maintained in seventeenth-century England that the right to create a new government could only be exercised “by such Persons only as are appointed by the Society for that purpose”.10 Consistent with that view, the Convention Parliament that met in 1689 without having been summoned by James II and which invited William and Mary to reign jointly – while seen by many as an inferior and legally irregular body – was depicted by some “as something greater, and of greater power than Parliament”.11 Although composed of the Commons and Lords who would usually sit in Parliament, the Convention Parliament was elected specifically to bring the country to a settlement regarding the monarchy and presented William and Mary with a Bill of Rights that sought to limit the powers of the Crown.12 Not surprisingly, years later, James Otis suggested that the Convention Parliament of 1689 had “created the government anew” (i.e., engaged in an act of re-constitution, according to the terminology adopted in this book) and in that sense was something more than an ordinary parliament.13 Nevertheless, it was in eighteenth-century North America where the distinction between an ordinary legislature and a constitution-making body was fully developed. Even though, as in England, extraordinary assemblies were originally seen as legally defective and therefore inferior to ordinary legislatures, they were to become closely associated with a people acting outside the normal institutions of government, with the purpose of transforming them. The main idea was that the ordinary legislature had no mandate to meddle with the ‘form of government’ and, at the same time, to render a form of government unalterable by an ordinary legislature, a body with a specific mandate from the people was needed. In that vein, Jefferson’s Notes on the State

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of Virginia stated “that to render a form of government unalterable by ordinary acts of assembly, the people must delegate persons with special powers”.14 Similarly, a Pennsylvania pamphleteer maintained in 1776 that: “Legislative bodies of men [have no power to destroy or create] the authority they sit by.” Otherwise, he continued, “every legislative body would have the power of suppressing a constitution at will; it is an act which can be done to them, but cannot be done by them”.15 These authors believed that Conventions, as extraordinary constitution-making bodies, were “in a special manner the epitome of the People”, and could thus be used to create and destroy constitutions at will.16 It has been suggested that by 1780 in Massachusetts, “the theory of Revolutionary constitutionalism required that the body charged with framing the constitution be a special assembly, chosen for that sole purpose, rather than an ordinary legislature”.17 Not surprisingly, in the New York Convention of 1821, a delegate felt confident enough to reply to the claim that “we were not sent here to deprive any portion of the community of their vested rights”, with a defiant: “Sir, the people are here themselves. They are present by their delegates. No restriction limits our proceedings. What are these vested rights? Sir, we are standing upon the foundations of society. The elements of government are scattered around us.”18 In a slightly more belligerent tone, Onslow Peters claimed during the Illinois Convention of 1847 that: “We are . . . the sovereignty of the State. We are what the people of the State would be, if they were congregated here in one mass meeting.”19 “We are,” he added “what Louis XIV said he was: ‘We are the State.’ We can trample the Constitution under our feet as waste paper, and no one can call us to account, save the people.”20 The idea that important constitutional changes must take place through extraordinary bodies, specifically elected for that purpose, did not survive for long. In the United States, the Federal Constitution of 1787, while technically contemplating a role for special conventions (both at state and national levels), gave the ordinary institutions of government an unlimited power of constitutional reform: the power to create the government anew. In the United Kingdom, the triumph of the doctrine of parliamentary sovereignty came accompanied with a rejection of any legally relevant distinction between the people and the ordinary legislature (a distinction vehemently defended by the Levellers in the mid-seventeenth century).21 In a sense, weak constitutionalism is an invitation to return to that abandoned tradition but, as we will see below, with a renewed democratic impetus. Before moving to that discussion, however, it is necessary to consider in more detail the idea of the superiority of special conventions over ordinary legislatures, as well as to supplement it with additional arguments. As noted above, English and North American supporters of special conventions stressed the fact that legislatures are not elected for the adoption of new constitutions. Put in the terminology presented in Chapter 3 of this book, legislatures are elected to engage in the activity of democratic governance, not in the exercise of democracy at the level of the fundamental laws.

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There is something in that argument, but it certainly cannot be the only reason for rejecting legislatures as potential constitution-making bodies. For instance, it is not clear why fundamental constitutional changes cannot be adopted by an ordinary legislature and then be subject to a popular vote. After all, legislators are directly elected, the electoral system is (ideally) structured in such a way that the resulting legislative assembly represents different sectors of society and legislators can be held politically accountable. If the concern is simply that the legislature is not normally authorised to engage in fundamental constitutional changes, there could be a special election granting it that power.22 However, there are additional reasons why a CA is a superior mechanism of fundamental constitutional change. To begin with, a legislature might be one of the institutions that citizens intend to alter, and giving ordinary representatives this task would make the adoption of the changes less likely (and would also put legislators in a position of being judges in their own case).23 Moreover, a CA comprises delegates who, unlike ordinary representatives, are not subject to re-election (since, as explained in Chapter 6, the assembly ceases to exist as soon as the constitution is adopted). Although this might be seen as a negative feature of a CA, in the sense that its delegates cannot be held accountable for their mistakes, it may be conceived as an advantage from the perspective of democratic openness.24 Precisely because they do not have to worry about what will happen in the next electoral campaign, they will feel free to propose and support novel measures beneficial to society at large or to call into question long-established institutions and principles, even against the opposition of small but powerful sectors of society. As Ruth Gavison has expressed: “If the members of the assembly are people who are not directly involved in day-to-day politics, it is likely that their judgment will be less clouded by their own immediate political interests.”25 Delegates to the CA, however, will have to take seriously what they perceive to be the ‘will of the people’ (as well as the reasons for activating this extraordinary constitutionmaking method), as they know that their proposals will have to be ratified in a referendum before having any legal effect. Closely connected to the previous points is the fact that a legislature is a body elected and designed with the purpose of dealing with the issues a polity faces on a day-to-day basis (e.g., how to spend government funds or whether certain conduct should be decriminalised). As an institution of democratic governance, it is the natural operating ground of traditional political parties and different sorts of interest groups that aim at influencing public policy. A CA, on the contrary, is concerned with fundamental constitutional change: it is called to operate during exceptional ‘political moments’, to use Wolin’s formulation.26 Its function is to deliberate about the content of the constitution in order to create a constitutional regime that improves the lives of citizens. For that reason, it has the potential to give voice to a whole new universe of participants, attracting the involvement of individuals and groups not traditionally engaged in political activity. In other words, a CA makes

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clear that the country is going through important constitutional transformations: a period of higher law-making that differs from day-to-day politics and in which all citizens are called to deliberate and decide upon the future of the fundamental laws. Accordingly, it is likely to be more consistent with the principle of popular participation than an ordinary legislative assembly invested with constitution-making faculties. The previous reasons, in my view, provide strong support for the idea that a CA is a superior mechanism of fundamental constitutional change than an ordinary legislature. In other words, that the exercise of constituent power should take place through an extraordinary body, elected for the purpose of engaging in an act of constitution-making in a way that tends to realise the principles of democratic openness and popular participation. But this is, of course, insufficient from a democratic perspective. That is to say, it is not enough to have an extraordinary assembly authorised to adopt a new constitution (and, accordingly, not subject to substantive limits found in the existing juridical order): the process that leads to the convocation of the assembly, the drafting of the constitution, and the decision of whether to accept or not its proposals must be as open and participatory as possible. What is required, then, is a process of fundamental constitutional change that can be correctly understood as an exercise of constituent power. As maintained in Chapter 6, the possibility of such a process is a necessary condition for the democratic legitimacy of the constitutional regime.

Of constituent assemblies convened from below As Dietrich Conrad once expressed, the theory constituent power, has “always denoted not merely the constitution-making function somehow attributed to the people, but direct authorship of the people”.27 This is very different, he added, from saying that all public authority derives from the people. That is to say, constituent power requires “a distinct and more directly creative influence in the institution of all other authority. Unless this essential feature can be retained and more clearly brought out, we had better discard the concept as empty, misguiding rhetoric”.28 This is why not every extraordinary constitution-making body, even if it succeeds in adopting a constitution and has the support of popular majorities, is a proper mechanism for the exercise of constituent power. Thus, while a constitutional regime that allows for fundamental constitutional change to take place through a CA can potentially be consistent with weak constitutionalism and meet the basic condition of democratic legitimacy, all depends on whether the degree of openness and popular participation in the constitution-making process (before the assembly is convened, during its deliberations and when the constitution is ratified) would allow citizens to see themselves as the actual authors of the constitution. In what follows, I consider the CA convened ‘from below’, currently present in several Latin American constitutions. I will also explore the ways in which such a mechanism could be made more democratic.

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The CA convened from below can be distinguished from the most common type of extraordinary constitution-making body contained in the amendment rules of some constitutions. Similar to the English and American conventions (but authorised by the established constitutional order),29 this (more common) mechanism consists of an extraordinary assembly comprising delegates with the mandate of engaging in the re-constitution of the juridical order and convened by ordinary government (usually by the legislature). The Constitutional Convention contemplated by Article V of the US Constitution (which was explored in some detail in Chapter 4) is an example of this type of assembly and serves to expose its major limitations: the initiative to convene it is placed exclusively in government, it is sometimes extremely difficult to convene and it does not involve any type of direct popular participation. A more democratic variant of the CA convened by the legislature is present in the constitutions of Nicaragua and Colombia. Article 193 of the Constitution of Nicaragua (1987) attributes the National Assembly with the initiative to call for the popular election of a CA invested with the power to create a new constitution. Similarly, Article 376 of the Constitution of Colombia (1991) gives a simple majority of both houses of Congress the power to trigger a binding referendum asking the electorate whether they wish to convene a CA. Because it is convened by the government and not by the electorate, this kind of assembly only guarantees the mere possibility of constitutional remaking through an extraordinary and elected body. In other words, it provides an opening for an unlimited constitutionmaking power to be exercised, but not a democratic opening, not an ‘openness’ always accessible to the citizenry. Moreover, the fact that this modality of the CA is convened by the ordinary legislature comes accompanied by at least two additional difficulties. First, it might allow a legislature that is determined to alter the constitution in order to extend governmental powers to convene a CA in the absence of genuine popular support for constitutional change. (This could happen even in a context where a referendum is required in order for the assembly to be convened: as I suggested in Chapter 4, referendums are always susceptible to different forms of manipulation.) Second, it would give the ordinary institutions of government the (only) key to opening the door for important constitutional transformations. That is, the legislature could reject a popular claim for a CA even in times of heightened popular mobilisation. The CA convened ‘from below’, triggered at the initiative of the citizenry as opposed to that of the legislature, is thus a democratically superior mechanism. It attributes to the people (as the mythical, extra-legal founders of the constitution)30 the faculty of re-activating their constituent power and becoming the authors of a radically transformed constitutional regime. This mechanism is about recognising a power superior to the constitution and giving citizens, acting outside the ordinary institutions of government, the institutional means for exercising it. The convocation of such an assembly could be initiated by the collection of a number of signatures, ranging from 10 to 20 per cent of the electorate.31 After the required number of signatures

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is collected, a referendum would take place in which the entire citizenry has the opportunity to decide whether the assembly is convened. If the majority votes in the affirmative (there could be a requirement of minimum participation for the result to be binding), the election of delegates would take place. From then on, the assembly would deliberate as a sovereign body, independent of the ordinary (or constituted) powers of government, and would operate according to its own rules. It would be authorised to replace the existing constitutional regime and create an entirely new one. Its proposals, of course, would have to be ratified by the electorate in an additional referendum in order to enter into effect.32 This is, in fact, the way in which the constitutions of Venezuela,33 Ecuador34 and Bolivia conceive of this extraordinary body. The case of the Bolivian Constitution (2009) is the most interesting as its Article 411 not only attributes to ordinary citizens the power to convene a CA, but – in a Schmittian fashion – specifically states that fundamental constitutional transformations must be adopted through this kind of body. This provision maintains that the “total reform of the Constitution, or those modifications that affect its fundamental principles, its recognised rights, duties and guarantees, or the supremacy of the Constitution and the process of constitutional reform, will take place through a sovereign Constituent Assembly, activated by popular will through a referendum”. It not only provides the executive and the Plurinational Assembly with the initiative to trigger the referendum, but it also allows it to be “triggered by popular initiative, by the signatures of at least twenty percent of the electorate”. Consistent with the Schmittian theory of constituent power, Article 411 also states: “The Constituent Assembly will auto-regulate itself on all matters. The entering into force of the reform will require popular ratification through referendum.”35 As the reader will note, this provision contains an indirect reference to the distinction (discussed in Chapter 7) between ordinary and fundamental constitutional change. It also assumes that constitutional changes of a fundamental nature should not take place through the constituted process of constitutional reform (it is important to remember here that the Bolivian Constitution, as well as the constitutions of Venezuela and Ecuador, also contain an ordinary amendment process that takes place mainly through the actions of the legislature), but through a mechanism that facilitates the exercise of constituent power. This is why Article 411 refers to the CA as ‘sovereign’, and attributes it with the power to auto-regulate on all matters. Interestingly, this contrasts with the law that provided for the convocation of the CA that drafted the Constitution of 2009. Adopted according to Article 232 of the previous Constitution of Bolivia (1967, as amended), that law required that the decisions of the (government-initiated) CA had to be made by a two-thirds majority. Although the assembly that resulted from this process attempted to assert its constituent character, insisting that it was not subject to any form of positive law, in the end it decided, by and large, to abide by the supermajority requirements. However, as can be seen, with the

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adoption of Article 411, the delegates to the CA were at pains to ensure that any future assembly would be considered a ‘constituent body’ with the power to adopt its own rules and to decide about its internal decision-making process.36 In other words, instead of creating an amendment rule that permanently closed the political terrain in which the constituent subject operates (as most liberal constitutions do), they decided to leave the door open for the future exercise of constituent power. As mentioned above, according to Article 411 of the Bolivian Constitution, the initiative to convene the CA is put in the (non-exclusive) hands of the citizenry. The fact that the executive and the ordinary legislature also possess the power of triggering the referendum that would ask the electorate whether they wish to convene the assembly is not necessarily problematic from the perspective of democratic legitimacy. Certainly, such a provision may be open to abuse and is subject to some of the criticisms posed above to the CA convened by the legislature. However, there might be highly exceptional situations in which the need for an important constitutional transformation is urgent and clearly supported by the great majority of a mobilised population, and in which collecting signatures would become an expensive formality. Moreover, as long as the constitution is open to important transformation through highly participatory procedures, the basic condition of democratic legitimacy would be met. This does not mean, however, that the previously cited Article 411 should be taken as providing for the ideal CA. Despite its superiority over the amendment rules of most constitutions, there are ways of increasing its participatory character beyond the specifications of that provision. The principle of popular participation is not exhausted in a popular initiative to convene a CA: it also makes important demands with respect to the way in which the delegates to the assembly are elected, as well as to the role non-delegates can play in the deliberation about the new or importantly transformed constitution. First, because a CA should be broadly representative, the electoral system used to elect its delegates should promote the ability of different minorities and social movements to gain seats in the assembly (this would likely be achieved with some form of proportional representation).37 Moreover, the threshold for becoming a delegate should be as low as possible in order to allow the greatest amount of delegates practically feasible, thus closing the distance between the citizenry and the assembly.38 In addition to adopting a system of proportional representation, the entire country should be designated a single electoral district because this is a good way of ensuring that all citizens are properly represented, as individuals and groups with different views about the constitution might be found anywhere in a country (in order to provide representation to marginalised groups, which in some cases might be indigenous peoples, a number of reserved seats might be created).39 Another alternative, which would greatly increase the possibilities of ordinary citizens becoming delegates would be to replace the election of delegates with a process of random selection (similar to the one used in several countries for selecting members to citizen juries).40

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Second, and as has been the practice in some CAs, current state officials should not be allowed to sit as delegates, and those who sit as delegates should not be allowed to run for office in the next regular elections.41 These rules would increase the possibility for ordinary citizens to become delegates, and in that respect would provide the assembly with an additional ‘popular’ character. Moreover, it would add a degree of transparency to the process, as those who deliberate about the form and powers of the new constitutional regime will not be exercising those powers in the near future. Third, the ability to make proposals about the content of the new constitution should not be limited to the assembly’s delegates. Not only should non-delegates be able to submit proposals, but there could be a process in place according to which, if a proposal is favoured by a certain number of non-delegates, members of the CA would be bound to deliberate on the desirability of its adoption (and, if the assembly rejects it, there could even be the possibility of triggering a special election in which the entire citizenry would consider the proposal at issue). Finally, there is no reason why the deliberation about the content of the new constitution should only formally take place at a ‘national’ CA. Prior to the election or selection of the delegates, there could be a number of smaller, extraordinary assemblies (organised geographically or thematically) that would be open to the public, and would deliberate about the need to adopt a new constitution or radically transform the existing one, as well as about its potential content. These assemblies would the power to present formal recommendations to the CA, which would have to be considered by the latter. When triggered by the citizens themselves, a CA would facilitate the exercise of constituent power and come very close to embodying the principles of democratic openness and popular participation. On the one hand, as a repository of the constituent power, the CA has unlimited competencies42 and can make any change in the constitutional regime, no matter how fundamental. It is true that it could result in the abolition of democracy (and of the rights and institutions that are necessary for any democratic exercise) and in the alteration of the very amendment formula that provides for its convocation, but if it does, it would destroy its very democratic legitimacy, together with that of the constitutional regime. On the other hand, and unlike the CA convened exclusively by the legislature, it recognises the citizenry as the protagonist of important constitutional transformations from the beginning to the end of the process. After the initial stage of the process begins, the electorate can reject the convocation of the CA by a simple majority in a referendum, or it can reject the proposed constitution in the ratificatory referendum at the end, but the public discussion about the future of the constitutional regime that can take place around these exercises would be by itself a valuable democratic event. A constitutional regime that grants the citizenry the power to convene a CA even against the will of government officials would certainly have a stronger claim to democratic legitimacy than a system that leaves fundamental constitutional change in the hands of the ordinary political

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institutions. This mechanism combines institutions of direct (collection of signatures, referendums) and representative (the assembly) democracy; of all the other methods of constitutional change, it has a better chance of maximising popular participation. Of course, such a mechanism is not likely to be used frequently and it has never been used in the few constitutional regimes that recognise it. In fact, frequently resorting to the convention of a CA (in any of its variants) could be an indication of a profound political problem rather than the symptom of an active and lively democracy. What democratic legitimacy requires is not a constitutional regime that is constantly altered in fundamental ways through highly participatory procedures, but one that may be altered in that way. Now, at the beginning of this chapter, I maintained that weak constitutionalism could be consistent with an unwritten constitution, yet the type of mechanism described above – the CA convened ‘from below’ – seems to be a creature of written and supreme fundamental laws. Although that is correct as a matter of actual political practice, it does not have to be that way.

Constituent assemblies and unwritten constitutions I maintained in Chapter 6 that democratic legitimacy requires that fundamental constitutional changes comply with the principles of popular participation and democratic openness. That is to say, not all constitutional changes must take place through highly participatory procedures, only those of a fundamental character.43 The fact that in the typical unwritten constitution most constitutional changes may take place through the ordinary law-making process is, by itself, not a problem. In the context of such a constitution, what would be needed is a system according to which fundamental constitutional changes take place through an extraordinary and participatory body (similar to the CA convened ‘from below’ described earlier).44 In order for that system to be as participatory as possible, it must be susceptible to being triggered by the citizens themselves, and should be elected and subsequently operate in a way that promotes the principles of popular participation and democratic openness. The process could begin with a proposal (presented by a citizen or group) for a particular constitutional change45 (or for the adoption of an entirely new constitution). On the basis of that proposal, a number of signatures would have to be collected in order to trigger an initial referendum on the issue (parliament could also share the legal power to trigger this referendum, making in that case the collection of signatures unnecessary). After the required number of signatures is collected, a referendum would take place in which citizens would be asked whether they wish to convene a CA called to deliberate on the proposed changes. After a positive vote, the assembly would be convened (and delegates elected) and its proposals would be subject to a binding referendum before they come into effect. In a way, this mechanism is reminiscent of Dicey’s ‘Referendum Act’ (briefly discussed in Chapter 5), which would have provided

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that no Bill that affected what he considered to be fundamental aspects of the constitution “should become law until it had been submitted to the electors of the United Kingdom for their approval or disapproval”.46 However, unlike Dicey’s referendum, which he considered as a manifestation of the negative aspect of sovereignty,47 as a people’s veto against unwanted fundamental changes, the mechanism proposed above would provide citizens with a positive, productive force: a means for exercising their constituent power. An obvious problem that emerges here is how to distinguish between fundamental and non-fundamental constitutional changes in the context of an unwritten constitution. In a way, this question is not any more difficult (or easier) than when asked in the context of most written constitutions. As noted in Chapter 7, just as in the context of written constitutions that lack eternity clauses or any sort of explicit distinction between ordinary and fundamental constitutional change (such as an amendment formula that requires different processes for different types of changes), what is considered fundamental would vary from country to country (and probably from generation to generation within a single country), and would usually include things such as the basic structure of government, the limits of the ordinary law-making power, the system of rights and the amendment rule itself. But this, of course, raises another question: even if one agrees that different countries at different times will consider different principles and institutions to be fundamental, who should have the right to decide what is considered fundamental, and therefore outside the scope of the ordinary power of constitutional reform? In Chapter 7 we saw that in some countries with written constitutions, this function has been assumed by the judiciary. That is to say, courts have asserted their jurisdiction to declare proposed constitutional amendments unconstitutional when they amount to replacing an existing constitution with a new one. Some courts, like the Colombian Constitutional Court, have expressly grounded this doctrine on the theory of constituent power. However, there is no reason why this function should necessarily lie with judges (even though the fact that the judiciary is attributed with this power is not necessarily problematic from the perspective of democratic legitimacy). For instance, there could be a process through which a legislative minority or a number of citizens can prevent a constitutional change that they consider fundamental from being adopted through the ordinary process of constitutional reform, and thus require government (if it is determined to produce the relevant changes) to call a special election for the convention of an extraordinary assembly. This kind of process is in fact more congenial to systems that operate under an unwritten constitution and that do not give judges the power to strike down legislation. It would be used in cases in which a parliamentary majority intends to adopt a change to the law that, in the view of some members of parliament and/or a group of citizens, should be adopted through a CA. Since those best placed to determine what rules have fundamental constitutional significance are arguably citizens themselves, this type of issue could be settled

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by referendum. As suggested above, the initiative to trigger the referendum for convening the CA could be shared by citizens and a certain percentage of members of parliament. For example, if a determinate number of ordinary legislators (say a minority of 35 per cent) are convinced that a particular Bill amounts to a fundamental constitutional change, they would have the legal faculty of triggering a referendum (which could also be triggered by popular initiative).48 The referendum would ask citizens two questions: first, do you think that the proposed law change has a fundamental constitutional significance? Second, do you wish to convene a CA to deliberate on the proposed change?49 If the answer is ‘yes’ to the first question and ‘no’ to the second, the proposed change should be seen as rejected by the people and as not susceptible to being legitimately adopted through the ordinary lawmaking process. In the case of the CA convened from below (in the context of an unwritten constitution), the question of what is a fundamental constitutional change is less controversial, as the very convocation of the assembly by popular initiative implies that the citizenry has considered that a particular proposal for change is the proper object of an exercise of constituent power. Needless to say, the provision of a CA convened from below in a traditional parliamentary sovereignty system would in itself involve an important constitutional transformation, since it would take constituent power away from parliament and give it to the people. In such cases, it is important to note the following. If a mechanism like this were ever to be adopted by a ‘sovereign’ parliament, the relevant provisions would automatically be protected by a sort of ‘double entrenchment’ (and parliament would at that very moment lose its role as a legislative and constituent assembly). That is to say, their subsequent repeal would in itself amount to a fundamental constitutional transformation involving the exercise of constituent power and would therefore be outside the scope of parliament’s ordinary lawmaking power (which would still include the power of ordinary constitutional reform). However, if at some point a parliamentary majority succeeds in repealing the Act that created the possibility for citizens to convene a CA, it would have clearly engaged in an illegitimate exercise of constituent power and thus would have deprived the constitutional regime of the previously achieved level of democratic legitimacy. But whether that exercise of constituent power is ‘illegal’ is a different question: provided that courts lack the power to invalidate legislation, no institution would be able to declare the relevant Act void. In those cases, we would be in a purely political zone in which parliament would have acted legally, but illegitimately. In this respect, the adoption of a CA, and therefore the abolishment of parliament as a legislative and constituent assembly, would not signify a move towards a ‘legal constitution’.50 The unwritten constitution would still only be enforceable politically, and judges would lack the power to strike down any parliamentary attempt to assert its lost constituent jurisdiction (unless, of course, the people decided to give

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judges that power, either through the adoption of a written and supreme constitution or though some other type of arrangement). The same would apply if a parliamentary majority engages in what is, by all accounts, a fundamental constitutional change (for example, replacing a monarchy with a republic) without the apparent opposition of the citizenry. In such a situation, parliament would evidently be acting as a constituent body. However, the lack of opposition (assuming, of course, that there are mechanisms in place for the electorate or a legislative minority to prevent the change from taking place through the ordinary law-making process) could simply be a result of the fact that the change at issue, while fundamental, is so uncontroversial that it does not warrant the activation of extraordinary mechanisms of popular participation. If this is not the case, then parliament would be illegitimately exercising the people’s constituent power and negating democracy in important ways.

Concluding remarks There is no single or correct set of arrangements that must be adopted in order to meet the demands of democratic legitimacy. Their basic feature, of course, must be the facilitation of the exercise of constituent power through an open and participatory procedure. In that respect, the objective of this chapter was not to describe the institutional mechanisms necessary for the realisation of democracy at the level of the fundamental laws, but to give examples of the type of arrangement that would meet the demands of democratic legitimacy. A regime based on the theory of weak constitutionalism, a democratically legitimate constitutional regime, would be open to fundamental constitutional change and would allow those changes to take place through the most participatory mechanisms possible. The CA convened from below, I argued, is one way of achieving that goal. When a CA is convened at a time when a strong popular majority is in favour of major constitutional change, something distinct from the exercise of ordinary political power takes place. That is what makes such an act an exercise of constituent power. The fact that citizens are allowed to participate directly in the process (through the collection of signatures, the initial referendum for convening the assembly, the selection of delegates, the deliberations about its content and the referendum for the ratification of the new constitution) makes it an exercise of constituent power, even if it does not fully exhaust the radical democratic potential of constituent activity. What the theory of constituent power does is allow us to think about certain moments, certain episodes of heightened popular support for constitutional change that warrant and require the use of extraordinary and participatory procedures. In other words, there are times in the life of a constitutional regime when democracy should trump constitutionalism. That is, episodes in which citizens act outside the ordinary institutions of government and call the most fundamental principles of their constitution into question and, if

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necessary, participate in the creation of an entirely new juridical order. Such a conception is in conflict with the traditional view of constitutionalism and, if it is to be realised, requires the adoption of a weak form of constitutionalism. Nevertheless, as we will see in the next and final chapter, the CA should be seen as a means for the execution of the decisions of the constituent subject. It is in its activation, in the informal political practices through which an exercise of constituent power is initiated, where an important part of the radical potential of weak constitutionalism lies. Although by itself it cannot guarantee that a democratically legitimate constitutional regime will be produced, the activation of constituent power, the moments that precede the convening of an extraordinary constitution-making body – in which popular majorities and social movements mobilise in support for important constitutional change – are perhaps where the condition of possibility for a democratic re-constitution lies.

Notes 1 As Sartori has put it, constitutionalism requires a constitution that not only limits governmental power but the will of the people as well. Giovanni Sartori, ‘Constitutionalism: A Preliminary Discussion’, The American Political Science Review, 1962, vol 56, p 862. Limiting the political power of the people is necessary, according to Sartori, “because a constitution cannot effectively limit the will of the power holders if they can outflank constitutional impediments by making direct appeals to the will of the people”. Ibid. 2 The way weak constitutionalism approaches popular participation in constitutional change distinguishes it from the work of Sanford Levinson. Levinson appears to suggest that his proposal for a constitutional convention would be irrelevant if the structural changes he considers necessary could be achieved through other methods (like judicial interpretation). Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How the People can Correct It), New York: Oxford University Press, 2006, p 164. In contrast, weak constitutionalism seeks to perpetuate the people’s ability to re-model the fundamental laws, to institutionalise the means for ordinary citizens to engage in profound and participatory episodes of constitutional change whenever they consider it necessary and regardless of the content of the constitution in question. 3 Supreme Court of Justice of Venezuela (Constitutional Chamber), Decision No. 53, 3 February 2009. 4 James Tully, ‘The Unfreedoms of the Moderns in Comparison to their Ideals of Constitutional Democracy’, The Modern Law Review, 2002, vol 65, p 213. 5 Jürgen Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’, Political Theory, 2001, vol 29(6), p 774. 6 This point has some similarities with the idea of ‘constitutional patriotism’. See Jürgen Habermas, The Inclusion of the Other, Cambridge: MIT Press 1998, pp 105–154; Jan-Werner Müller, ‘A General Theory of Constitutional Patriotism’, International Journal of Constitutional Law, 2008, vol 6(1), p 72. 7 As noted in Chapter 2, the term ‘unwritten constitution’ might not accurately describe the constitution of countries such as the United Kingdom and New Zealand, since many of the constitutional rules in place there can be found in some written legal instruments. In a way, what ‘unwritten’ means is: susceptible of being changed through the same kind of formal legislative processes through which

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ordinary laws are changed. The conception of democratic legitimacy defended in this book is not incompatible with an ‘unwritten’ constitution that can be amended through simple legislative majorities, as long as an exception is made for fundamental constitutional change (which must take place through highly participatory procedures). A constituent assembly, at least in the context of a modern state, cannot be composed of all citizens so it would therefore have an important representative component. However, when those sitting in an assembly lack decision-making power (in the sense that their proposals need to be directly ratified by the people before they acquire legal validity), they are not ‘representatives’ but ‘delegates’. For a discussion of representation and delegation in the context of Schmitt’s theory of constituent power, see Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt, Cambridge: Cambridge University Press, 2008, p 155. See Andrew Arato, ‘Redeeming the Still Redeemable: Post Sovereign Constitution Making’, International Journal of Politics, Culture, and Society, 2009, vol 22(4), pp 437–438 and Hans Lindahl, ‘Sovereignty and Representation in the European Union’, in Neil Walker (ed), Sovereignty in Transition, Oxford: Hart Publishing, 2003. Quoted in Gordon S. Wood, The Creation of the American Republic 1776–1787, Chapel Hill: The University of North Carolina Press, 1969, p 319. Ibid., p 318. For a discussion, see Steve Pincus, 1688: The First Modern Revolution, New Haven: Yale University Press, 2009, pp 282–284. Wood, The Creation of the American Republic, p 319. See also Martin Loughlin, ‘Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice’, in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism, Oxford: Oxford University Press, 2007, p. 41. Thomas Jefferson, ‘Notes on the State on Virginia’ (1776), in Merrill D. Peterson (ed), The Portable Thomas Jefferson, New York: The Viking Press, 1975, p. 170. A similar point was raised by Schmitt in his Constitutional Theory: “If such a constitution-making assembly were not qualitatively different from a properly constituted parliament, one would be led to the nonsensical and unjust result that a parliament could bind all subsequent parliaments (selected by the same people according to democratic electoral methods) through simple majority decisions and could make a qualified majority necessary for the elimination of certain (not qualitatively different) laws, which came about through simple majority.” Carl Schmitt, Constitutional Theory, Durham: Duke University Press, 2008, p 80. Quoted in Wood, The Creation of the American Republic, p 337. Wood, The Creation of the American Republic, p 337. Locke’s theory of resistance was very influential in eighteenth-century North America and, as noted in Chapter 5, reflected in the Declaration of Independence. However, some of the state constitutions adopted in the eighteenth century attributed the people with the right to create a new government even in the absence of the extreme governmental abuses required by the Lockean conception. See for example Kentucky’s Constitution of 1792, which attributed “the people” with the power to “alter, reform, or abolish their government” in any “manner as they may think proper”. Christopher G. Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War, Cambridge: Cambridge University Press, 2008, p 28. See Richard B. Bernstein (with Jerome Agel), Amending America: If We Love the Constitution So Much Why Do We Keep Trying to Change It?, Lawrence: University Press of Kansas, 1993, p 8.

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18 Quoted in Roger Sherman Hoar, Constitutional Conventions: Their Nature, Powers, and Limitations, Boston: Little, Brown, & Company, 1917, Chapter XI, Sec 3. 19 Ibid. 20 Ibid. 21 For a discussion, see Loughlin, ‘Constituent Power Subverted’, pp 35–38. 22 An example of this is the election of the first French Parliament after the Second World War, when voters were asked: “Do you want the assembly elected today to be a constituent assembly?” See Jon Cowans, ‘French Public Opinion and the Founding of the Fourth Republic’, French Historical Studies, 1991,vol 17, p 62. 23 Legislatures, of course, are not unknown to engage in this kind of selftransformation. For example, through the New Zealand Constitution Amendment (Request and Consent) Act 1947 and the Legislative Council Abolition Act 1950, the New Zealand Parliament abolished its upper house. In 1922, the Australian State of Queensland’s legislature also abolished its upper house through legislation. The concern that ordinary legislators would not be likely to make certain changes supported by the citizenry was also present in some of the discussions around the adoption of Article V of the US Constitution in 1787. See Bernstein and Agel, Amending America, p 17. 24 For a defence of the superiority of extraordinary delegates over ordinary representatives in the context of constitutional change, see Dennis C. Mueller, ‘On Writing a Constitution’, in Ram Mudambi, Pietro Navarra and Giuseppe Sobbrio (eds), Rules and Reason: Perspectives on Constitutional Political Economy, Cambridge: Cambridge University Press, 2001, p 9. 25 Ruth Gavison, ‘Legislatures and the Phases and Components of Constitutionalism’, in Richard W Bauman and Tsvi Kahana (eds), The Least Examined Branch: The Role of Legislatures in the Constitutional State, Cambridge: Cambridge University Press, 2006, p 206. 26 Sheldon Wolin, ‘Fugitive Democracy’, in Seyla Benhabib (ed), Democracy and Difference: Contesting the Boundaries of the Political, Princeton: Princeton University Press, 1996, p 31. Wolin’s ideas were discussed in Chapter 3 of this book. 27 Dietrich Conrad, ‘Limitation of Amendment Procedures and the Constituent Power’, The Indian Year Book of International Affairs, India: Madras, 1966–1967, p 403. 28 Ibid. Cf. Benjamin Rush, ‘Address to the People of the United States’, in John P. Kaminski et al (eds), The Documentary History of the Ratification of the Constitution, Charlottesville: University of Virginia Press, 2009. In a Lockean fashion, Rush expressed: “It is often said that ‘the sovereign and all other power is seated in the people’. This idea is unhappily expressed. It should be – ‘all power is derived from the people’. They possess it only on the days of their elections. After this, it is the property of their rulers, nor can they exercise or resume it, unless it is abused.” 29 The fact that a Constituent Assembly is authorised by the constitutional order does not necessarily make it inconsistent with the theory of constituent power. This point was discussed in Chapter 5. 30 Mythical because, as noted in Chapter 6, most constitutions are not adopted democratically and most people are usually born into an already constituted constitutional regime. 31 The idea here is not to set the threshold too high so as to make the triggering of the constituent assembly impossible, but at the same time not setting it so low that a minority that does not have the support of large sections of the population (but perhaps plenty of economic resources) can easily initiate a process of fundamental constitutional change. The few constitutions that allow for the convocation of a constituent assembly ‘from below’ require 12–20% of the signatures of registered electors (Ecuador 12%, Venezuela, 15%, Bolivia 20%).

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32 Because a Constituent Assembly is generally understood as a means for exercising constituent power, its proposals for change are not normally subject to judicial review, regardless of their content. However, and as noted above, the legal validity of their proposals usually depends on their ratification in a referendum. For an unusual case of a court reviewing the decisions of a constitutionmaking body, see In re Certification of the Constitution of the Republic of South Africa, 1996, 1996 (4) SA 744 (CC) and In re Certification of the Amendment text of the Constitution of the Republic of South Africa, 1996, 1997 (2) SA 97 (CC). 33 Constitution of Venezuela (1999), Article 347. In the case of the Venezuelan Constitution, it is not clear if a referendum is required to convene the assembly or if the collection of signatures (15% of the electors) is all that is needed. A literal reading of the text certainly suggests the latter, but such reading would likely be rejected in practice. Interestingly, the set of constitutional changes rejected by the electorate in December 2007 included an amendment that would have increased the number of signatures required from 15% to 30%. 34 Constitution of Ecuador (2008), Article 444. 35 Article 411. The translation is mine. The official Spanish text of Article 411 reads as follows: “La reforma total de la Constitución, o aquella que afecte a sus bases fundamentales, a los derechos, deberes y garantías, o a la primacía y reforma de la Constitución, tendrá lugar a través de una Asamblea Constituyente originaria plenipotenciaria, activada por voluntad popular mediante referendo. La convocatoria del referendo se realizará por iniciativa ciudadana, con la firma de al menos el veinte por ciento del electorado; por mayoría absoluta de los miembros de la Asamblea Legislativa Plurinacional; o por la Presidenta o el Presidente del Estado. La Asamblea Constituyente se autorregulará a todos los efectos, debiendo aprobar el texto constitucional por dos tercios del total de sus miembros presentes. La vigencia de la reforma necesitará referendo constitucional aprobatorio.” 36 For a discussion about the conflict around the 2/3 rule, which involved social unrest and also a decision of the Supreme Court of Justice declaring that the assembly was a ‘constituted power’, see Jorge Lazarte, ‘La Asamblea Constituyente de Bolivia: De la Oportunidad a la Amenaza’, Nuevo Mundo Mundos Nuevos, 2008, vol 8. Online. Available http://nuevomundo.revues.org/42663?lang=en> (accessed 9 September 2009); Ruben Martínez Dalmau, El Proceso Constituyente Boliviano (2006–2008) en el Marco del Nuevo Constitucionalismo Latinoamericano, Editorial Enlace, La Paz, 2008. 37 Jon Elster, ‘Legislatures as Constituent Assemblies’, in Richard W. Bauman and Tsvi Kahana (eds), The Least Examined Branch: The Role of Legislatures in the Constitutional State, Cambridge: Cambridge University Press, 2006, p 187. 38 Mueller, ‘On Writing a Constitution’, p 18. To have an idea of what counts as a practically feasible number of delegates, one of the largest assemblies has been the Indian Constituent Assembly, which comprised 389 members. Patrick Fafard and Darrel R. Reid, Constituent Assemblies: A Comparative Survey, Ontario: Institute of Intergovernmental Relations, 1991, p 18. The Kenyan National Constitutional Conference was even larger, and comprised 629 delegates. 39 Mueller, ‘On Writing a Constitution’, p 18. 40 The decision between election and random selection is not only about assuring representativeness, but also heightened popular engagement, and a full discussion of this topic is outside the scope of this book. It might be true that a scientific random selection of delegates would result in a representative assembly “very unlikely to differ radically from the population”: James S. Fishkin and Robert C. Luskin, ‘The Quest for Deliberative Democracy’, in Michael Saward (ed), Democratic Innovation: Deliberation, Representation and Association, London: Routledge, 2000, p 20. Nevertheless, perhaps something is lost by depriving

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citizens of the opportunity to select particular delegates that, for different reasons, they think would better represent their views in a deliberative exercise (for example, popular interest in the process might be affected if citizens do not think the assembly is acting in their ‘name’). From the perspective of deliberative democracy, however, there is no guarantee that an election of delegates will be preceded by sufficient (and intelligent) deliberation and debate. See John S. Dryzek, ‘Legitimacy and Economy in Deliberative Democracy’, Political Theory, 2001, vol 29, pp 653–654. For a proposal designed to increase deliberation among citizens before an election, see Bruce Ackerman and James Fishkin, Deliberation Day, New Haven: Yale University Press, 2004. For a discussion of the advantages and disadvantages of election and selection by lot in the context of a citizen assembly, see Kevin O’Leary, ‘The Citizen Assembly: An Alternative to the Initiative’, University of Colorado Law Review, 2007, vol 78, pp 1525– 1535. More generally, see Bernard Manin, The Principles of Representative Government, Cambridge: Cambridge University Press, 1997. 41 For example, the French Constituent Assembly adopted a rule proposed by Robespierre according to which the members of the assembly were banned from entering the first ordinary legislative assembly elected under the new constitution. See Andrew Arato, ‘Forms of Constitution Making and Theories of Democracy’, Cardozo Law Review, 1995, vol 27, p 227. A similar rule was adopted by the Colombian National Constituent Assembly of 1991. See Constitution of Colombia (1991), Transitional Article 2. 42 There could certainly be a CA with limited competencies, in the sense that the people could authorise delegates to make proposals only with respect to some fundamental aspects of the constitutional regime. Such an assembly would involve the exercise of constituent power even if it is not given the power to create an entirely new constitutional text, as those (fundamental) changes would amount to an act of re-constitution. For an example, see Article 376 of the Constitution of Colombia (1991). 43 This does not mean that there cannot be participatory procedures for ordinary constitutional change, such as the popular initiative to amend the constitution. Present in several Latin American and European constitutions, as well as in the constitutions of several states in the US, this mechanism typically works in the following manner. A group of citizens drafts a proposal for amending the constitution and collects the required number of signatures (usually around 10–15% of the registered electors) in order to be able to present the proposal to the authorities. Once the proposal is presented and the signatures validated, governmental authorities are required to submit it to the people for their approval or rejection in a referendum. If the proposal is approved, it immediately becomes part of the constitutional text. The legislature is thus bypassed altogether, and the official authorities have no choice but to provide the administrative tools that allow citizens to exercise their power to change the constitutional text ‘by themselves’. The competencies of the popular initiative to amend the constitution should be seen as equivalent to that of the ordinary amending power. It would be used to make those kinds of changes that citizens deem necessary but that do not warrant the convocation of a constituent assembly. They would play the role, as John Calhoun once said of the amending power in general, of the vis medicatrix of the constitutional regime: the power to repair the constitution and not to radically transform it. John Calhoun, The Works of John Calhoun, New York: Russell and Russell, 1968. At the same time, they could be used to overrule the decisions of the courts regarding the constitutionality of ordinary legislation (if the system at hand allows for judicial review), and would become especially useful to adopt changes that a legislature would not be eager to adopt through the ordinary amendment procedure. Although not having a good

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reputation among progressives in the US (particularly as a result of its use in California, where the prohibition against same-sex marriage was given constitutional status through a popular initiative), this mechanism has been put to more positive uses in other parts of the world. For example, it was used in Uruguay to stop the privatisation of state enterprises. For instance, in 2004, a popular initiative was used to include the ‘right to water’ in the constitutional text in order to prohibit the privatisation of the water sector. In this particular case, after the signatures were presented to the government, the required referendum took place and 64% of the population voted in favour of the proposed amendments (with a participation of 90% of registered voters). See Carlos Santos, Aguas en Movimiento: la Resistencia a la Privatización del Agua en Uruguay, Montevideo: Ediciones de la Canilla, 2006. More generally see David Altman, ‘Democracia Directa en el Continente Americano: ¿Autolegitimación Gubernamental o Censura Ciudadana?’, Política y Gobierno, 2005, vol 12(2), p 203. I have discussed the possibility of such a mechanism in the context of New Zealand in Joel I. Colón-Ríos, ‘New Zealand’s Constitutional Crisis’, New Zealand Universities Law Review, 2011, vol 24, p 448. As in the CA convened from below, discussed in the context of written constitutions, this proposal would take the form of a proposal for change rather than a draft of a specific amendment to a constitutional statute or convention (e.g., ‘A proposal for the convocation of a constituent assembly to deliberate on the possible entrenchment of the Bill of Rights Act’, or ‘A proposal for the adoption of a republican constitution’). A.V. Dicey, ‘The Referendum’, National Review, 1894, vol 23, p 69. Dicey specifically mentions the rights of the Crown, the constitution of either of the Houses of Parliament and the Acts of Union, as susceptible to change only after a referendum. A.V. Dicey, Introduction to the Study of the Law and the Constitution, London: Macmillan, 1959, p cxi. The main reason for giving a certain percentage of members of parliament the faculty to trigger the referendum is that in cases in which there is clear public support for a Constituent Assembly and urgency to make certain changes, the process of signature collection can be avoided. Granted, giving parliamentary minorities the faculty to trigger referendums on constitutional change comes accompanied with the risk that this mechanism becomes a tool for the political opposition to prevent the parliamentary majority from properly exercising its law-making power and to shift an important part of the decisions normally made by parliament to a constituent assembly (e.g., by triggering referendums on Bills whose constitutional significance is arguably non-existent). However, although there is certainly the risk of abuse, one must not underestimate the political cost of calling – and perhaps being defeated in – what are perceived to be unnecessary referendums. Another, different option (and, in a sense, an option less consistent with the principle of popular participation and with the doctrine of parliamentary sovereignty) would involve the judiciary. Under this alternative, instead of triggering a referendum, citizens or legislators would ask a court to determine whether a particular law change is of a fundamental nature and thus requires an exercise of constituent power. This would be similar to the role assumed by judges in those countries with written constitutions in which the doctrine of unconstitutional constitutional amendments, discussed in Chapter 7, has been adopted. For a discussion, see Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy, Cambridge: Cambridge University Press, 2007.

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Activating constituent power

Weak constitutionalism and democratic legitimacy not only demand a constitution that makes available a set of mechanisms that facilitate the exercise of constituent power. The most an established mechanism of constitutional change can achieve, it was suggested by Carl Schmitt, is the execution of the constituent power: the transformation of the will of the constituent subject into law. But in order for an exercise of constituent power to take place, something, some sort of political act(s), must occur that results in the initiation of constituent activity. Such activity would normally take the form of informal political practices like civil disobedience, street assemblies and mass protests. By engaging in those kinds of activities, groups who aim at the transformation of the constitutional regime attempt to create the climate necessary (e.g., convince other citizens that an important constitutional transformation is desirable) for an exercise of constituent power to take place and a new constitutional regime to be produced. Put differently, these groups would attempt to activate constituent power in the hope that the decision (now supported by a great majority of the population) in favour of a new constitutional regime is executed. As a way of concluding my analysis, this chapter will examine the distinction between the activation and the execution of constituent power, and briefly explore its meaning in the context of the recent upheavals in the Middle East, North Africa and Europe.

The activation/execution distinction A democratic of constituent power might be the result of at least two different types of events. The first is a situation in which a government attempts to use the ordinary process of constitutional reform to inaugurate a new constitutional regime. In such cases, depending on the regime in question, the judiciary might invalidate the relevant constitutional change and the government would have no choice but to abandon its plans or to ask the citizenry to convene an extraordinary constitution-making assembly. If a majority votes in favour of convening the extraordinary assembly, the constituent process begins. In this type of situation, the initiation of the exercise of constituent power is a result of the combination of an act of government and of a popular vote.

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The second type of situation is different. It is about a citizenry that wishes to alter the constitutional regime without the open support, or even against the will, of government. In this second type of situation, it is usually a group of citizens that seeks to convince popular majorities of the need to adopt a new or radically transformed constitution. If these citizens are successful, it could be said that they were able to activate constituent power. Only after that happens, a constitution-making body, in any of its variants, would be convened and a new constitution produced (or, to put it slightly differently, the will of the constituent subject executed). It is on this type of situation that I will focus in this chapter. In such a situation, the citizens of a democratically legitimate constitutional regime, one open to future exercises of constituent power, are likely to recur to the established participatory procedures of fundamental constitutional change. And in a regime that lacks that opening, citizens would put pressure on state officials until they agree to create a means for the exercise of constituent power. Both in the instance of a regime whose constitution allows citizens to convene a constituent assembly and in the case of a regime in which the power of constitutional reform is in the exclusive hands of ordinary government, one can make a distinction between the activation of constituent power and its execution. In both instances (provided that the movement in favour of fundamental constitutional changes comes from civil society and not from the state), the exercise of constituent power would likely be preceded by different public manifestations in favour of a new constitution. The exercise of constituent power is activated through this kind of informal practice, and only when this happens would a mechanism of constitution-(re) making is likely to be convened (regardless of whether it is convened by the collection of signatures or by the legislature). Once that happens, the exercise of constituent power becomes more organised and regulated, in the sense of formally taking place through a special body that is elected and that operates according to certain rules. Such a body is called to execute the decision of the constituent power; that is, to produce fundamental constitutional transformations. Constituent power’s execution, of course, requires the constitutionmaking body to deliberate about the ways in which the popular mandate for fundamental constitutional change may be translated into constitutional law, and its proposals would be subject to popular ratification. Carl Schmitt understood this distinction very well. It is true that he thought “there cannot be a regulated procedure, through which the activity of the [constituent power] would be bound”.1 Moreover, he maintained that the constituent power of the people is an “unmediated will”, one which exists prior to and above “every constitutional procedure”, and insisted that no constitutional form could “prescribe the form of its initiation”.2 He thus maintained that because the people “are not a stable, organised organ” (unlike, for example, a monarch), the decision to create a new constitutional regime could “only be made evident through the act itself and not through observation of a normatively regulated process”.3 For Schmitt, the natural form of the

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direct expression of a people’s will “is the assembled multitude’s declaration of their consent or disapproval, the acclamation”; the people, he said, can only “say yes or no to the fundamental questions of their political existence”.4 This unmediated and non-participatory character of the constituent power, an instance in which the citizenry is limited to make a ‘yes’ or ‘no’ decision as to whether to alter its form of political existence, sits uncomfortably with the conception of democracy and democratic legitimacy defended in this book. But what Schmitt was describing in those passages was clearly not an exercise of constituent power, but the ways in which it might be activated. Schmitt was simply describing the types of political practices that he thought should be taken to reflect a popular will to exercise constituent power. This is why he wrote that although no constitution can confer constituent power or establish the process through which it is initiated, “[t]he further execution and formulation of a political decision reached by the people in unmediated form requires some organization, a procedure, for which the practice of modern democracy developed certain practices and customs”.5 The examples he considers regarding the procedures that can be used to execute the people’s political decisions are different types of extraordinary constitution-making bodies and special elections.6 If these organisations and procedures are not available, the constituent subject could remain in a state of powerlessness and disorganisation; it would be unable to transform its will into law. If Schmitt’s theory of constituent power is understood in light of this distinction, its practical applications become much clearer and it is freed from its more mysterious aspects. He was only noting the uncontroversial fact that no constitutional form can establish the ways in which a popular majority may express their will to create a new constitution. Such expressions would naturally take place in the political terrain through popular manifestations against the established constitutional order and in favour of the creation of a new one. For example, they could involve a popular movement demanding a fundamental constitutional change through different informal political practices. These proposed changes would normally be of a general character (such as the creation of a new constitution or the adoption of mechanisms to enforce social and economic rights), and their transformation into constitutional law would therefore be subject to intense deliberation within (and outside) the constitution-making body finally called to execute constituent power. Nevertheless, Schmitt’s conception of the way in which an exercise of constituent power is initiated is problematic in at least one important respect. It is not accompanied by a deliberative conception of the public sphere, one in which proponents of a new constitutional order not only express their ‘will’ to create a new constitution through non-deliberative acts of acclamation, but in which they engage in informal deliberative practices designed to engage with other citizens and persuade them about the need for re-inaugurating the constitutional order.7 If one sees the moment of the decision (in which Schmitt is almost exclusively focused) as preceded by a set of informal participatory

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practices through which citizens deliberate about whether a fundamental constitutional change is necessary (and followed by the convening of a democratically elected constituent assembly that would deliberate about the specific constitutional changes to be adopted), then the distinction between the initiation and the execution of constituent power assumes a radical democratic potential. It allows us to conceive of the pre-constitution-making moment as a terrain of direct citizen participation and of popular challenges to the established constitutional regime. In this respect, a regime based on the theory of weak constitutionalism, a democratically legitimate constitutional regime, would not only be open to fundamental constitutional change through highly participatory procedures, but would also guarantee the rights that make the democratic initiation of constituent power possible, such as rights to assembly and expression.

Of revolutions, informal assemblies, and other protests The activation of constituent power, as we have seen, escapes any form of legal organisation. This is why Andreas Kalyvas is correct in stating that from the perspective of constituent power, “phenomena such as civil disobedience, irregular and informal movements, insurgencies and revolutionary upheavals retain all their dignity and significance even if they directly challenge the existing constitutional structure of power”.8 These are the types of political practices that would normally precede an exercise of constituent power, the activities that might give birth to a popular majority determined to create a new constitution. It is not difficult to identify recent instances of the initiation of constituent power in action. From the student demonstrations that led to the adoption of the Colombian Constitution of 1991 to the indigenous mobilisations that ended in the creation of the Bolivian Constitution of 2009, the twentieth and twenty-first centuries are full of examples. Nevertheless, the most recent (and perhaps most extreme) examples are those currently taking place in the Middle East and North Africa, where disorganised multitudes have challenged the existing juridical orders and demanded the establishment of new constitutions. In a way, the massive character of these movements is consistent with Schmitt’s conception of the activation of constituent power: a multitude expressing its decision to establish a new order. This ‘decision’ is perhaps reflected in one of the main slogans of these demonstrations – Al-sha’b yurid isquat al-nizam (‘The people want the downfall of the regime!’).9 These popular protests have overthrown governments in places like Tunisia and Egypt, and at the time of writing this book they continue to exert pressure in countries like Bahrain, Syria, and Yemen. While having their origins in complex social, economic, and political issues, they involve demands for traditional liberal freedoms and important constitutional reforms. This is why, in those cases in which they have succeeded, constitutional changes are taking place; and in those where they have not, protesters have

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clearly shown their intentions of inaugurating new constitutional orders.10 Nevertheless, even in Egypt, where a strong popular movement was able to activate an episode of constituent activity, the constitutional changes that resulted have not been adopted through highly participatory procedures.11 In fact, the constitutional changes recently approved in Egypt (via referendum) were drafted by a committee of experts appointed by the Supreme Council of the Armed Forces.12 Not surprisingly, some have criticised these changes as having failed to meet some of the main demands of the citizenry.13 In cases like this, to use Schmitt’s formulation, the constituent power has been, at least for now, unable to transform its proposals into constitutional law. The recent events in the Middle East and North Africa also serve to stress the point that in the absence of mechanisms that facilitate the ‘execution and formulation’ of the decisions of the constituent power (such as the Constituent Assembly convened from below), the success of a popular movement in producing important constitutional changes depends on democratically irrelevant factors such as the effectiveness of the state’s repressive apparatus, how adept a political movement is in persuading people to engage in different forms of protest that might even involve the risk of death, and how the challenge to the existing regime, and the regime itself, is perceived by the international community.14 Accordingly, some popular movements (e.g., Tunisia and Egypt) are successful in promptly overthrowing the existing regimes, while in other places (e.g., Bahrain, Libya, Syria and Yemen) the regimes in question are able to survive for longer. This is of course a direct implication of the absence of democratic legitimacy: even though those regimes in many cases failed to protect individual and political rights, their constitutions, just as the typical constitutionalist fundamental law, lacked mechanisms designed to facilitate the exercise of constituent power. Perhaps such mechanisms of participatory constitutional change would not have meant much in a context of political and social repression, in which citizens’ political rights are heavily restricted, but their mere availability would have likely affected, in positive ways, the procedures chosen to bring the new constitutional regime into existence.15 As noted in previous chapters, the basic condition of democratic legitimacy, as well as the very ideas of democracy and constituent power, require that basic political rights are respected (regardless of the specific form they take). But the recognition and respect of these rights, as I have argued in the previous chapters, is not enough: to take the people’s constituent power seriously requires providing citizens with the means for its exercise. This point is exemplified in the political protests currently taking place in different European countries, where multitudes who enjoy basic political rights lack any formal means to translate their political demands into constitutional law. In fact, while the ‘Arab Revolutions’ are perhaps the extreme example of the activation of constituent power (a set of political acts unmediated by any form of procedure through which mass movements expressed their support for fundamental constitutional changes), the recent events in Greece and Spain

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provide more discrete examples of the type of political practices through which constituent power might be activated.16 In Greece, citizens have engaged in general and regional strikes, as well as in what Costas Douzinas has described as “imaginative acts of resistance”17 (including different forms of civil disobedience) in order to protest against a set of economic measures that are seen as imposed (with the agreement of the Greek government) by the International Monetary Fund, the European Union and the European Central Bank. “A motley multitude of indignant men and women of all ideologies, ages, occupations, including the many unemployed,” writes Douzinas, engaged in “daily occupations and rallies, sometimes involving more than 100,000 people . . . with the police observing from a distance.”18 They call themselves ‘the outraged’ and protest against “the unjust pauperising of working Greeks, the loss of sovereignty that had turned the country into a neo-colonial fiefdom of bankers, and the destruction of democracy”.19 The demonstrations included informal assemblies of thousands of citizens (which took place in Syntagma, the central square of Athens opposite to Parliament), in which speakers were selected randomly (aspiring speakers were given a number and called to the platform if their number was drawn) and discussed different topics and proposals.20 Weekly debates were also organised, in which lawyers, economists and philosophers presented alternatives to deal with the crisis. For Douzinas, these types of political practices should be understood as “democracy in action”, as a demonstration that “parliamentary democracy must be supplemented with its more direct version”.21 However, he also reminds us that the Syntagma Square was named after nineteenth-century demonstrations, in which citizens demanded a constitution (syntagma) from the monarch. This is, he argues, what the ‘outraged’ are doing, “demanding a new political arrangement to free them from neoliberal domination and political corruption”. In the absence of the ‘total’ political revolutions seen in the Middle East and North Africa, these kinds of political practices are the ones that, in my view, would normally precede an exercise of constituent power in a typical ‘constitutional democracy’ or even in a regime based on a weak form of constitutionalism. These practices not only create the political climate necessary for large popular majorities to become interested in possible constitutional changes, but provide additional channels of direct participation and deliberation among citizens. This does not mean that the main objective of those political practices (and of those involved in them) must necessarily be the production of fundamental constitutional transformations. However, from a juridical perspective, widespread discomfort with the structure and functioning of a political system would normally require some form of constitutional change. In that respect, it is not surprising that in June 2011 the Greek government announced a referendum on a set of (as of this moment, yet undisclosed) “major changes” to the constitution.22 A constitutional referendum, as I have argued in previous chapters, is not a sufficient mechanism for the exercise of

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constituent power and, accordingly, such constitutional changes (if they ever take place) would be characterised by an important deficit of democratic legitimacy. Moreover, precisely because they would not take place through a process that allows citizens to propose, deliberate and decide upon the content of the transformed constitution, it is unlikely that they would meet, in any significant degree, the demands of the protest movement. Only time will tell if this political movement will succeed in triggering a genuine constituent episode, one that will ensure the new constitution is the result of the execution of the constituent power. Interestingly, in the context of the political protests taking place in Spain, which involve calls for ‘real democracy’ and political practices that range from civil disobedience and mass mobilisations to informal assemblies, the very language of constituent power has been explicitly present. It has been maintained, for example, that the protest movement (los indignados, which literally means ‘the outraged’) should be seen as “the germ of a more ambitious, constituent process”.23 And, given the apparent unresponsiveness of state officials, it has been suggested that a “participatory constituent assembly” must be called in order to redefine the democratic process and create solutions to the crisis.24 In a similar vein, it has been argued that when acts of resistance and disobedience become massive, as in Spain, they become a “democratic and constituent imposition that goes beyond the law and exhibits the vulnerabilities of the political system”.25 Even if some of these statements might overestimate the revolutionary potential of the protest movement, they throw light on the distinction between the activation and the execution of constituent power. They also show, however, the democratic limits of a constitutional regime that does not seek to provide an opening for constituent power to manifest from time to time. In such a context, as Schmitt suggested, there is always the possibility that the constituent power remains ‘powerless’ and disorganised, and therefore unable to produce a novel constitution. This does not mean, however, that movements taking place under a regime that is not susceptible to democratic re-constitution would necessarily be unable to trigger participatory processes of constitutional change, as the success of the popular protests in Iceland demonstrates. Those protests, which were a direct result of a financial crisis that quickly became political, ended in a participatory constitution-making process.26 That is to say, Icelanders decided to (partially) bypass the existing constitution’s amendment process and recur to a different, more democratic one. A Constitutional Council27 composed of 25 elected citizens was given the task of drafting a constitution that was then sent to the country’s parliament (the Althingi). This election was preceded by a ‘citizen jury’ composed of 950 randomly selected citizens, which gave recommendations as to the content of the future constitution. The Althingi would then (ideally) send the draft constitution to a popular referendum or return it to the Constitutional Council for amendments.28 As the reader will note, this process exhibits some important inconsistencies with the classical theory of constituent power (the most

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obvious of which is the non-sovereign character of the constitution-making body and its legal inferiority to the ordinary legislature)29 and could be improved in different ways. Nevertheless, the degree of popular involvement in the drafting of the constitution was high by most standards. For example, it made intense use of technology and social media in order to allow non-members of the Constitutional Council to participate in the drafting process, and has been identified by some as an instance of constitution-making being ‘crowdsourced’. In this instance, one may conclude that the activation of the constituent power came very close to result in an authentic constituent process. Unfortunately, as is the case with most contemporary constitutions, the draft constitution (although incorporating some mechanisms of direct democracy),30 did not attempt to reproduce the participatory and extraordinary character of the constitution-making process in its amendment rule. Instead, the proposed amendment procedure31 places the initiative of constitutional reform in the ordinary legislature, whose proposals for change would normally have to be ratified in a referendum. In that respect, even if it has a claim to a democratic pedigree (that is, provided that the Althingi submits the draft constitution to a referendum without first engaging in non-cosmetic changes),32 the draft constitution lacks an opening for future exercises of constituent power and thus would not meet the basic condition of democratic legitimacy. From the perspective of weak constitutionalism, the tasks of a constitution-maker would not only be to adopt a constitution through the most participatory procedures possible, but to facilitate the occurrence of future acts of democratic re-constitution.

Concluding remarks “Democracy,” Sheldon Wolin has written, “means participation; but participation is not primarily about ‘taking part’, as in elections or office holding.”33 Participation means, he says, “originating or initiating cooperative action with others . . . in response to felt needs”.34 The activation of constituent power, although only a part of a democratic act of re-constitution, exemplifies Wolin’s point. After all, the ‘taking part’ in the production of fundamental constitutional changes (e.g., through the collection of signatures that might lead to convening a Constituent Assembly and the participation in the different elections that such a mechanism involves) would be highly unlikely unless resulting from informal political acts, political practices that create the environment for constituent power to be activated. As has been argued through this book, democratic legitimacy requires certain constitutional forms, mechanisms that facilitate the exercise of the people’s constituent power when fundamental constitutional changes are needed. But such mechanisms, even the Constituent Assembly convened from below, require an active citizenry, one that sees the constitution as theirs and, as such, as the proper object of fundamental change. The recent events in places as diverse as Egypt,

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Greece, Spain and Iceland show that even in large and complex societies, informal political practices can result in the activation of processes of fundamental constitutional change. However, at the same time, they show that the exercise of constituent power, the reconstruction of the judicial order through a process consistent with the principles of democratic openness and popular participation, can hardly become a reality in constitutional regimes that fail to meet the basic condition of democratic legitimacy.

Notes 1 Carl Schmitt, Constitutional Theory, Durham: Duke University Press, 2008, p 130. 2 Ibid., p 132. 3 Ibid., p 131. Schmitt’s conception of the people came very close to expressing the distinction between democratic governance and democracy at the level of the fundamental laws (discussed in Chapter 3): “The people in this capacity [i.e., as the bearer of the constituent power] would lose their nature, when they direct themselves to the daily, normal functioning and the regular completion of official business. According to their nature, the people are not a magistrate, and even in a democracy they are never the responsible officials.” Ibid. A similar point is also made by Andreas Kalyvas. See Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt, Cambridge: Cambridge University Press, 2008, pp 133–134. 4 Schmitt, Constitutional Theory, p 131. 5 Ibid., pp 132, 140. 6 Ibid. 7 Here, Habermas’ conception of the public sphere in which “culturally mobilised publics” organised in “associations of civil society” interact with formal legal institutions becomes particularly relevant. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge: MIT Press, 1996, p 301. For a discussion of the democratic limitations of Schmitt’s theory of constituent power, see Andreas Kalyvas, Democracy and the Politics of the Extraordinary, pp 123–126. 8 Andreas Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’, Constellations, 2005 vol 12, p 230. 9 Perry Anderson, ‘On the Concatenation in the Arab World’, New Left Review, 2011, vol 68, pp 9–10. 10 For example, by mid 2011, the Libyan Transitional National Council released the “Draft Constitutional Charter for the Transitional Stage”, which sets out a process for the creation of a new Libyan Constitution. Although the specifics of that process are somewhat unclear, it seems that it would involve an elected Constituent Assembly (the members of the Transitional National Council apparently would not be allowed to run as delegates), which would draft a constitution in a three-month period and submit it to a referendum. 11 This might not be the case in Tunisia, where a special election for a 217member Constituent Assembly took place in October 2011. 12 Interestingly, one of the amendments approved in the referendum contemplates the creation of a new constitution by a Constituent Assembly whose members would be appointed by the two houses of parliament in a joint meeting. Egypt State Information Service, ‘Army Council issue statement on constitutional amendments’, 27 February 2011. Available www.sis.gov.eg/en/Story.aspx?sid=53903 (accessed 20 August 2011).

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13 See for example Taerk Masoud, ‘The Road to (and from) Liberation Square’, Journal of Democracy, 2011, vol 22(3), p 20; Jason Gluck, ‘Constitutional Reform in Transitional States: Challenges and Opportunities Facing Egypt and Tunisia’, Peacebrief, no. 92 (United Stated Institute of Peace) (April 2011). Online. Available www.usip.org/files/resources/PB92.pdf> (accessed 20 August 2011). 14 This argument is also developed in Joel I. Colón-Ríos and Allan C. Hutchinson, “Democracy and Revolution: An Enduring Relationship?”, Denver University Law Review, 2011, vol 89(2). 15 These events may also be examples of revolutions that fail to leave the door open for future democratic revolutionary activity; that is, for future exercises of constituent power. In a certain way, this idea resonates with Slavoj Žižek’s view that “the Egyptian summer of 2011 will be remembered as marking the end of revolution, a time when its emancipatory potential was suffocated”. Slavoj Žižek, ‘Shoplifters of the World Unite’, London Review of Books (19 August 2011). Online. Available www.lrb.co.uk/2011/08/19/slavoj-zizek/shoplifters-ofthe-world-unite> (accessed 25 August 2011). 16 Žižek has argued that the 2011 riots in the UK expressed “an authentic rage which is not able to transform itself into a positive programme of socio-political change”. This is precisely why, unlike the events in Greece and Spain and in different countries in the Middle East and North Africa, these riots are difficult to analyse from the perspective of constituent power. Ibid. The Occupy Wall Street protests are more promising in this respect, although their demands do not normally involve direct calls for constitutional change. 17 Costas Douzinas, ‘In Greece, We See Democracy in Action’, Guardian, Wednesday 15 June 2011. Available www.guardian.co.uk/commentisfree/2011/jun/15/ greece-europe-outraged-protests> (accessed 20 August 2011). 18 Ibid. 19 Ibid. 20 Ibid. 21 Ibid. 22 Antonios Bouchagiar and Mihalis Gousgounis, ‘Direct Democracy in Greece & the 2011 Referendum’, Democracy International, 15 July 2011. Online. Available www.mehr-demokratie.de/fileadmin/di/pdf/papers/Direct-Democracy-Greece2011-Referendum.pdf> (accessed 20 August 2011). 23 Antoni Domènech, ‘Mejor al Revés: ¿Cuál es la Alternativa Real al Movimiento del 15 de Mayo?’, Sin Permiso, 22 May 2011. Online. Available www.sinpermiso. info/textos/index.php?id=4183> (accessed 20 August 2011). 24 Enrique Santiago Romero, ‘Toda Revolución Necesita una Constitución’, Rebelión, 23 May 2011. Online. Available http://rebelion.org/noticia.php?id=128915> (accessed 20 August 2011). 25 Pablo Iglesias Turrión, ‘Llega la Hora de Generalizar la Desobediencia de los Indignados’, Público, 21 May 2011. Online. Available www.lavozdeasturias.es/ politica/opinion_0_484751660.html (accessed 20 August 2011). 26 Iceland’s existing constitution, adopted in 1944, contains an amendment rule (Article 79) that places the initiative and the drafting of constitutional changes in the hands of the ordinary institutions of government: if a proposal for change is adopted by the ordinary legislature, then a general election takes place and only if the new legislature ratifies the proposal does it become constitutional law. 27 The Constitutional Council was composed of the 25 citizens originally elected as members of a Constitutional Assembly. That election, however, was declared void by the country’s Supreme Court (in a heavily criticised decision) due to certain technical errors. As a result, the Althingi appointed those 25 citizens to a Constitutional Council and attributed it with the functions of the Constitutional Assembly.

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28 For an overview of the process and the content of the draft constitution, see the Constitutional Council official website: www.stjornlagarad.is/english/. 29 For example, the Constitutional Council cannot be understood as a means for exercising constituent power. According to Article 114 of the draft constitution, it can only present the draft constitution to the Althingi, which would have the power to adopt it according to the amendment procedure established in the Constitution of 1944. 30 See Articles 65–67 of the draft constitution, which provide citizens with the right to present proposals to the Althingi by popular initiative and to trigger binding referendums. Although it is unclear whether the popular initiative can be used to present amendments to the constitution, Article 67 suggests that it can only be used to present proposals for ordinary legislation (or to void an ordinary law adopted by the Althingi): “Care shall be taken that a bill at the initiative of the voters shall be in accordance with the Constitution.” 31 Article 113 of the draft constitution provides that amendments are to be adopted by the Althingi and then submitted to popular referendum in order to become valid (the referendum is not necessary if a 5/6 majority of Althingi members vote in favour of the amendments). 32 The claim to a democratic pedigree would be limited in important ways by the non-sovereign character of the Constitutional Council. 33 Sheldon Wolin, ‘Contract and Birthright’, Political Theory, 1986, vol 14(2), p 192. 34 Ibid.

10 Conclusion

I stated in the introduction that contemporary constitutional theory has turned its back on democracy, and my intention in the previous nine chapters has been to present a constitutional theory that directly confronts the demands imposed by the democratic ideal. In presenting such a theory, I attempted to avoid the all-too-common route of providing an interpretation of the democratic ideal that weakens democracy in significant ways in order to make it consistent with liberal constitutionalism. Instead, I defended a strong and participatory conception of democracy, then took the unorthodox approach of developing an alternative conception of constitutionalism – a ‘weak constitutionalism’ – that can live up to democracy’s demands. The approach presented here does not come accompanied with a promise of any final reconciliation between constitutionalism and democracy. On the contrary, it recommends a set of constitutional forms that make the tension between these two ideals even more obvious. That is to say, it requires a constitution that remains permanently open to future exercises of constituent power: a constitution according to which a departure from constitutionalism is episodically warranted and in which citizens are always free to exercise their democratic right to (re)create the constitutional regime. Only such a constitution, I have argued, would ever come to enjoy democratic legitimacy. The previous nine chapters developed these ideas, and these are the main conclusions that follow from them: a.

Constitutionalism and democracy cannot be brought to a final and happy resolution: the former is about limiting political power, the latter about an unlimited (popular) political power. As a result of this tension, the democratic legitimacy of constitutional regimes is called into question. b. Constitutionalism is characterised by an aspiration to the permanence of the established constitution. Although constitutions are sometimes seen as protecting the pre-conditions of democracy, they also establish structures and promote institutions that have little or no connection to the democratic ideal, and that in many cases conflict with it. c. Democracy at the level of daily governance must be distinguished from democracy at the level of the fundamental laws. The first has to do with

Conclusion

d.

e.

f.

g.

h.

i.

187

the adoption of ordinary laws and the administration of a state’s bureaucratic apparatus; the second, episodical in character, with the ways a constitution was created and the ways it can be changed. Democratic openness and popular participation should be seen as the basic principles of the democratic ideal. These basic principles require that even the most fundamental provisions of a constitutional regime can be questioned and revised through highly participatory procedures. In the context of constitutional change, participation is not just about voting, but also about being able to propose, deliberate and decide upon the content of a constitution. Constituent power not only means the unlimited power to create a constitution, but also the power to create a constitution with others. This power is not exhausted with the adoption of a constitution and can be exercised at any time. Accordingly, it comes accompanied with an important democratic component and is highly consistent with the basic principles of democracy. To say that a constitutional regime is legitimate is to say something about how it arose and how it can be altered. Constituent power and legitimacy come together in the idea of democratic legitimacy: a democratically legitimate constitutional regime should have a democratic pedigree and must have an opening for constituent power to manifest itself when important constitutional transformations are to be made. Democratic legitimacy also requires that fundamental constitutional changes take place through the most participatory procedures possible. When a fundamental constitutional change takes place, an instance of re-constitution occurs and the exercise of constituent power is required. The judicial doctrine of ‘constitutional substitution’ exemplifies some of the ways in which the distinction between ordinary and fundamental constitutional change is already taken into account by some constitutional regimes. A constitutional regime can be consistent with those requirements only to the extent that it is based on a weak form of constitutionalism, one that does not see constituent power as a threat but that recognises the necessity of keeping the constitutional regime permanently open. Such a regime would be characterised by mechanisms that seek to facilitate the exercise of constituent power, such as the Constituent Assembly convened from ‘below’. A constitutional regime that seeks to facilitate future exercises of constituent power by adopting the types of mechanisms recommended by weak constitutionalism would meet the basic condition of democratic legitimacy (susceptibility to democratic re-constitution). However, in order to be convened, these mechanisms necessitate a citizenry that, through informal political practices, creates the environment for constituent power to be activated.

188

Conclusion

In a way, all the main conceptions that have been explored through the previous chapters (the principles of popular participation and democratic openness, the second dimension of democracy, constituent power) provide support for the same idea: that democracy requires constitutional regimes that provide the citizenry with the means to engage in future episodes of democratic re-constitution. The conception of constitutionalism on which most contemporary constitutional regimes rest is inconsistent with that idea. Accordingly, only a conception of constitutionalism that does not aim at the permanence of a constitution reputed to contain the right content can give rise to a democratically legitimate constitutional regime. This conception, which I call ‘weak constitutionalism’, approaches the post-constitutionmaking exercise of constituent power not as a threat but as the potential realisation of democracy at the level of the fundamental laws. Constituent power has been ignored by constitutional theory for too long and at a very high price. My aim has been to produce a democratic constitutional theory, one in which constituent power appears as a central theme and in which democratic peoples, not constitutionalism or constitutionalists, dictate the content of the constitution.

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Index

acclamation 88, 177; non-deliberative acts of 177 Ackerman, Bruce 11, 13, 39–40, 52n9, 70–1, 77n73, 110, 146n24 alternabilidad 138 amendmentitis 19 American constitutional theory 18, 97n50, 146n28 American Revolution 8, 80, 83, 87 anarchism 106 Anglo-American: constitutional theory 3, 7, 18, 80; constitutional tradition 13, 89, 115 anti-democratic: character 27, 49; sentiment 86 apathy 63 Arab Revolutions 14, 175, 178–180 Arato, Andrew 88 arbitrary will 110–11 Arendt, Hannah 110, 112 Aristotle 132 aspiration to permanence 12, 18–22, 25, 31n26, 57, 64–6, 95, 139, 153, 156, 186 Athenian Assembly 61–2 Athenian democracy 62 authority 13, 42, 48, 81, 93, 102, 106–7, 110, 114, 121n29, 122n45, 129–30, 135–7, 152, 158, 160 Bahrain 178–9 Barber, Benjamin 70, 121n38 basic income 26 basic structure: of constitution 67, 104, 133; doctrine of 133, 148n47; of governance 27; of government 28, 128, 166; of political power 108 Beetham, David 103–4 Bodin, Jean 80–1

Bolivia 14, 162 Bonaparte, Napoleon 18, 25, 109 Brazil: Constitution of 127 Brettschneider, Corey 24 Brutus, Junius 81 Burnheim, John 61 campaign finances 37 Canada 2, 65, 79, 91, 99n96, 124n70, 127, 140, 144n1; Supreme Court of 79, 140 Canadian Senate 37 Canovan, Margaret 62 capitalism 27, 68 Castoriadis, Cornelius 58 Charles I 81 citizens 2, 6–8, 10–13, 17–18, 20, 22–5, 37, 91, 95, 99n96, 103–8, 114–18, 121n29, 121n32, 124n74, 126–7, 141–4, 144n1, 149n74, 152–6, 159–61, 164–8, 170n8, 173n40, 173n43, 176–81, 184n27, 185n30, 186; assemblies 38, 40, 75n34, 61; juries 62–3, 163; ordinary 1–2, 5, 19, 21–3, 25, 43–4, 49–51, 60, 65, 70–2, 72n1, 76n55, 108, 115, 126, 152, 156, 162–4, 169n2, 173n43 civil disobedience 14, 107, 114–15, 175, 178, 180–1 Cobbett, William 41 Cohen, Joshua 61–2, 70, 115 collection of signatures 10, 46, 51, 161–3, 165, 172n33, 173n43, 173n48, 176, 182 Colombia 67, 92–3, 132, 134–8, 140; Congress of 92–3, 149n74, 161; Constitution of (1886) 92–3; Constitution of (1991) 101n131,

204

Index

133–4, 143–4, 148n48, 148n49, 161, 173n43, 178; Constitutional Court of 14, 78n82, 94, 133–4, 137, 166; Supreme Court of Justice 92, 94, 100n121 commonwealth 51n1, 81–3; form of the 82 Commonwealth system 36 competence 94, 135 Conrad, Dietrich 90, 111, 145n14, 160 consent theory 105–8, 121n38, 177 constituent assembly 32n26, 32n31, 45, 79, 89, 92, 113, 116, 119, 123n67, 125n83, 126, 133, 137, 148n47, 148n48, 160–7, 170n8, 171n29, 172n32, 178; convened from below 10, 14, 153, 160–8, 171n31, 174n45, 179, 182, 187 constituent power 3, 7–11, 13–14, 18, 21–2, 36, 39n32, 40, 47, 50–1, 73, 79–103, 109–19, 122n45, 123n70, 126–44, 146n31, 146n32, 148n57, 151n95, 152–69, 171n29, 174n49, 175–83, 186–8; activation of 14, 87, 113, 115, 157, 160–1, 175–83; collective character of 8, 89, 111, 115; delegated 88; destroying itself 118; displacing 142; distinction between activation and execution of constituent power 14, 175–8, 181; distinction between constituent power and the right of resistance 8, 80–83; doing away with 142–3; execution of 14, 175–8, 181; hiding 142–3; legalising 142–3; limitations of 103, 111–13, 132, 137, 147n36, 154; original 93–4; origins of concept of 80, 89, 97n50, 109; risks of 73, 95, 102, 109–14, 131 constituted powers 84–6, 93–5, 97n50, 114, 127, 129, 131, 133, 135–7, 162 constitution: abolition of a 58, 81, 91; flexible 7, 17, 71, 142, 151n95; rigid 7, 12, 19–20, 28, 33n57, 71, 129, 143; uncodified 25, 116; unwritten 5, 17, 20, 30n8, 32n33, 46, 59, 68, 71–2, 99n101, 126, 139, 142–3, 153, 156, 165–8, 169n7 constitutional amendments: stringent requirements of 4, 19–21, 32n31, 44, 47, 58, 60, 67, 91, 134, 136, 143 constitutional change 1–7, 9–14, 18–22, 26, 29, 39–40, 44, 46, 50, 58, 60, 64–7, 70–3, 83, 85, 88–92,

95, 99n96, 102, 110, 116–18, 126–9, 132, 134–5, 139–41, 145n8, 145n10, 145n18, 148n49, 149n74, 150n90, 153–8, 161, 165–6, 168–9, 169n2, 173n43, 174n48, 175, 178–81, 184n26, 187; distinction between ordinary and fundamental constitutional change 74n16, 127–8, 133–4, 139–41, 143, 162, 166, 187; episodic nature of 2, 6, 186–7; fundamental 10–12, 14, 38–9, 74n6, 89, 91, 109, 117, 119, 126–8, 133–4, 139–41, 143–4, 150n85, 152–4, 156, 159–60, 162, 164–8, 170n7, 171n31, 176–8, 182–3, 187; popular participation in 3–5, 10, 20, 22, 25, 29, 65, 70–1, 85, 139, 143, 167; popular support for 92, 161, 168, 176 constitutional convention 18–19, 31n15, 46, 66, 169n2; Article V of the United States Constitution 66, 76n48, 147n34, 161; periodic 18–9, 31n15 constitutional interpretation 3–5, 18, 28, 44, 64–5, 112, 114, 145n14 constitutional politics 13, 19, 39, 70, 77n73, 110 constitutional regime: abolition of an established 80, 95 constitutional rupture 91, 136–7 constitutional significance 167 constitutional substitution 127, 132–8, 144, 149n63, 187 constitutional supremacy 17, 36, 46, 82, 133, 149n74, 162 constitutionalism: definitions of 3–4, 17 constitutionalism-democracy debate 1, 4–5, 26, 29, 48, 64, 73, 79–80, 152, 168, 186–7 constitution-making 6–7, 9–10, 14, 38–40, 46, 51, 52n8, 59, 86–7, 89, 92–3, 102, 108–11, 115–18, 123n67, 124n79, 125n81, 125n83, 126, 129, 143, 145n18, 154, 157–61, 169, 175–82 constitutive of democracy 2, 22–3, 26 constituyente primario see original constituent power Convention Parliament 157 co-originality thesis 24 coup d’état 31n26, 92, 113 Crown, the 90, 141, 157, 174n46 Crown-in-Parliament 90 Czech Republic 123n67

Index Dahl, Robert 37, 51n1, 69–70 day-to-day majorities 2, 17, 22, 64 de Malberg, Raymond Carré 85 de Vega, Pedro 72, 78n82 Declaration of the Rights of Man and Citizen 132 delegates 116, 141, 156, 158–9, 161–4, 168, 170n8, 171n24, 172n40 delegation 170n8 deliberation 1, 23, 25, 27–8, 40, 48, 62, 70, 72, 75n31, 88, 113, 116, 163–4, 173n40, 177, 180 deliberative polls 62 democracy: abolition of 22, 39, 59, 63, 102, 125n83, 164; balance with constitutionalism 4, 48, 50, 79, 88, 94, 152–3; basic principles of 7, 13, 47, 51, 57, 73, 83, 95, 102, 126, 133, 154, 187; deliberative 61–3, 173n40, 177; direct 40, 61–2, 69, 75n34, 182; direct assembly 61, 63, 86, 154; at the level of daily governance 6, 11, 13, 29, 35–7, 39, 45, 50, 59, 60, 62, 94, 154–5, 186; at the level of fundamental laws 6–9, 11–13, 20, 29, 35–51, 53n24, 57, 59–60, 63, 67, 72, 85, 94–5, 102, 110–11, 114–15, 123n70, 127, 131, 141, 152, 154, 158, 168, 183n3, 186, 188; a non-majoritarian conception of 19–20; participatory conception of 5, 13, 55n64, 57, 60, 63, 69–70, 94, 138, 186–7; strong conception of 5, 88, 186; two dimensions of 6–7, 11–12, 36–40, 50, 51n1, 59, 94, 154 democratic constitutional theory 1, 3, 8, 152, 188 democratic constitutionalism 3–5, 50, 94 democratic culture 60 democratic ends 43, 59 democratic governance 6, 35–8, 40, 44–5, 47, 49–50, 57, 67, 70, 72, 95, 113, 126, 158–9, 183n3 democratic legitimacy 2–3, 8–10, 13–14, 36–7, 39–40, 63, 95, 102– 19, 122n42, 123n70, 124n74, 125n81, 126–7, 132–4, 139, 141, 144, 152, 155, 160, 163–8, 170n7, 175, 177, 179, 181–3, 186–7; basic condition of 13, 103, 115–17, 155, 160, 163, 179, 182–3, 187 democratic means 36, 38, 57, 59

205

democratic openness 6–7, 11, 13, 57–60, 64–8, 76n55, 83, 91, 108–9, 111, 113, 116–18, 127, 131, 143, 154, 159–60, 164–5, 183, 187–8 democratic pedigree 9–10, 13, 23, 42, 45, 108–9, 115–18, 182, 185n32, 187 Democratic People’s Republic of Korea: Constitution of 34n58 democratic re-constitution 2–3, 9–10, 13, 36, 38, 46, 57, 103, 116–19, 125n81, 126, 155, 169, 181–2, 187–8 democratic will 1, 27 derecho politico see political law Dicey, A.V. 45, 89–90, 165–6, 174n46 dictator 58, 87, 109, 117 dictatorial regime 40, 52, 59, 107, 109, 118, 136 dissent 7, 23, 58 doctrine of implicit limits 12–14, 127–8, 133, 135, 137, 139, 143, 144n3, 146n28, 151n95, 155 Dominican Republic: Constitution of 127 Douzinas, Costas 180 dualist constitution 70 duty to obey 105–6, 114, 121n32 Dworkin, Ronald 11–12, 21, 26, 36, 42–5, 50, 65 Dyzenhaus, David 114, 122n45 economic inequalities 26–7 Ecuador 14, 32n31, 162, 171; Constitution of 14, 32n31 162 Edwards v A.G. of Canada 65 Egypt 178–9, 182–3, 184n15, Eisgruber, Christopher 19–20 elections 6, 35, 37, 67–71, 92–4, 142, 164, 171n28, 177, 182 elite 6, 46, 58, 73n1, 108, 110–11, 116 entrenchment 12, 17–18, 21–3, 25–7, 29, 32n38, 33n57, 59, 167, 174n45 equal citizens 6–7, 73n1 equal participation 71, 107 eternity clauses 20, 67, 112, 127, 133, 135, 137, 166 European Central Bank 180 European Union 180 experts 44, 53n39, 77n70, 117, 154, 179 extraordinary assemblies 14, 31n15, 157, 164; organised geographically and/or thematically 164 extraordinary representatives 85, 113

206

Index

fear 5–6, 12, 18–21, 26, 37, 39, 57, 102, 109, 112, 139, 156 first dimension of the democratic ideal see democracy at the level of daily governance Ford, Richard 27–8 France 68, 84–6, 88; Constitution of 68, 72, 84, 145n14 Franco, Francisco 109 freedom of association 1, 6, 23, 28, 34n58, 69, 130, 178 freedom of conscience 23–4, 130 freedom of expression 1, 23, 25, 28, 34n58, 37, 40, 69, 118, 178 Freeman, Samuel 131 French Revolution 8, 31n15, 80, 87 Friedrich, Carl 97n43, 110–11, 113 fugitive democracy 12, 47, 50 Fuller, Lon 27–8 Fung, Archon 62, 70 fundamental laws 1, 5, 5–8, 11–13, 20, 29, 36–40, 42, 47, 49, 51, 53n24, 57–58, 60, 63, 67, 72, 82–83, 85, 89–90, 94–95, 96n16, 102, 110–11, 114, 117, 123n70, 127, 131, 141, 143, 152, 154, 156, 158, 160, 165, 168, 169n2, 183n3, 186, 188 Gavison, Ruth 159 German Basic Law 67, 132–3 German Constitutional Court 32n39, 132, 147n35 Germany 129, 132, 137, 147n40; Constitution of 129, 133 Glorious Revolution 14 God 81 Goldsworthy, Jeffrey 13, 71–2, 99n101 government: abolition of 83, 170n16; officials 1, 4–5, 7, 19, 27, 29, 35, 40, 43, 48, 65, 69, 72, 89, 94–5, 104, 112, 114, 126, 138, 155, 164, 176, 181, 183n3 governmental abuse 11, 13, 80–3, 97n45, 155, 157, 163, 170n16, 171n28 governmental structure 17–19, 26, 28, 49, 65, 82, 112, 114, 117, 128, 130, 141, 153, 155, 157–8, 161, 166 Greece 14, 67, 179–80, 183, 184n16; Constitution of 67 guerrillas 92–3, 101n125

Habermas, Jürgen 24–5, 33n50, 52n6, 62, 75n28, 116, 124n71, 124n77, 146n32, 154, 183n7 Hamilton, Alexander 61 higher laws 17, 40, 44, 70, 110, 130, 132, 160 Holmes, Oliver Wendell 27 Holmes, Stephen 19–20, 23, 26, 58 Honduras 32n26 House of Lords 37, 140 Huntington, Samuel 55n64, 69 Iceland 14, 181, 183, 184n26; Constitution of 181, 184n26 ideology 18, 57, 68 implicit limits to constitutional reform 12–14, 127–8, 133, 135, 137, 139, 143, 144n3, 146n28, 151n95, 155 imposed constitutions 9, 39–42, 102, 115, 117, 124, 126 India 67, 132–3, 137, 143, 147n40, 148n47, 172n38; Constitution of 67, 132–3, 143; Parliament of 143; Supreme Court of 133, 151n95 indigenous mobilisation 178 inequalities 26–7, 49 informal assemblies 14, 180–1 informal deliberative practices 62, 175–7 informal political practices 14, 155–6, 169, 175, 177, 182–3, 187 International Monetary Fund 180 Italy 67; Constitution of 67, 129 James II 157 Jefferson, Thomas 7, 18–19, 157 judicial review 3–6, 20, 29, 33n57, 34n74, 37, 41–2, 44–5, 61, 64–5, 70, 77n71, 172n32, 173n43; abolition of 5, 29 judiciary 3–4, 21–2, 25, 28, 37, 43–6, 64–5, 70–1, 71n77, 94, 130–2, 134–5, 137, 140–1, 146n32, 166–7, 174n49, 175; unelected 65, 71 justification 8, 13, 21, 25, 102–6, 120n18, 120n26, 121n34, 133 Kalyvas, Andreas 8, 80, 101n122, 110, 112–13, 116, 124n79, 178 Kant, Immanuel 105–6, 120n26 Kelsen, Hans 103 Kesavananda Bharati v Kerala 133, 151n95

Index La Fayette, Marqués 97n50 Latin America 3, 8, 10, 34n68, 51, 80, 89, 91, 94, 109, 136, 148n57, 150n90, 153, 160, 173n43 Latin American: constitutionalism 8, 10, 13, 34n68, 51, 80, 89, 91–2, 94, 109; constitutional tradition 13, 89, 92, 94; left 8 lawlessness 110–11, 114 Lawson, George 8, 13, 51n1, 80–6, 89–90, 96n12, 96n16, 97n45, 100n112, 145n13, 146n32 lawyers 59, 103, 150n80, 180 Le Chapelier, Isaac 18 Lefort, Claude 58 legal constitution 167 legal continuity: break in 136 legal validity 9, 103, 170n8, 172n32 legislative minority 27, 166, 168 legislative supermajorities 7, 20, 27, 32n31, 41, 43, 45, 47, 66–8, 77n71, 127, 162 legislature 2, 5, 11, 19, 22, 25, 29, 31n15, 35, 37–8, 44–5, 47, 53n24, 61, 66, 70–1, 75n32, 76n48, 79, 82, 84–5, 90, 114, 117, 119, 123n67, 126, 130, 133, 137, 140–3, 147n34, 153, 155–64, 171n23, 173n43, 176, 182, 184n26; abolition of 167, 171n23; as constituent assembly in permanent session 119 legitimacy of judicial review of legislation 3–4 Levinson, Sanford 71, 169n2 liberal constitution 2–3, 21, 26–8, 43, 46, 72, 79, 92, 112, 163 liberal constitutionalism 14n1, 18, 34n64, 48–9, 86, 91, 139, 186 liberal democracy 5 liberty 27–8, 73n1, 82–3, 130, 133, 149n71 Libya 178–9; Transitional National Council of 183n10 limits: self-imposed 9, 93, 112, 116, 131 living-tree constitutionalism 13, 64–5, 71, 76n46 Lochner 27 Locke, John 8, 13, 80–4, 86, 96n34, 97n43, 97n45, 100n112, 105, 120n21, 123n65, 130–1, 146n31, 155, 157, 170n16 Lord Cooke 141 los indignados see the outraged

207

Loughlin, Martin 91, 100n112, 113 Lycurgian 17, 19–21, 39, 66–7, 144 Macpherson, C.B. 69 Madison, James 18–20, 31n18, 66 main demands 115, 179 majority rule 11, 20, 32n31, 35, 41–2, 58, 60, 79, 113, 130, 140, 150n85 manipulation 48, 161 Marx, Karl 23 Michelman, Frank 24–5, 28 Middle East 175, 178–80, 184n16 Minerva Mills v Union of India 133, 151n95 minority protection 1, 112 Morgan, Edmund 83, 90 nation 84–5, 90, 93, 98n70, 100n121, 102, 111 Nazism 128 Negri, Antonio 8, 102, 119n1 New York Convention 158 New Zealand 25, 30n8, 32n33, 45–6, 54n56, 68, 76n54, 141–2, 150n85, 169n7, 171n23 Nicaragua: Constitution of 161 non-delegates 163–4 North Africa 175, 178–80, 184n16 Norway 67; Constitution of 67, 129 Nye, Joseph 69 obedience 103, 105, 120n26, 121n29, 121n38 old constitutions 9, 22, 116, 131 Opinion 551/03 133–4, 137 Opinion C-141/10 78n82, 138 ordinary constitution-making institutions 22, 141, 167 ordinary laws 6, 12, 17, 20, 22, 25, 28, 32n33, 35–8, 41, 44, 66, 72, 86, 89, 94–5, 123n67, 129, 157, 169n7, 187; distinction between ordinary and constitutional law 14, 19, 40, 44–6 ordinary representatives 38, 84, 159, 171n24 Otis, James 157 the outraged 180–1 Owen, Sir Roger 82 parliamentary sovereignty 5, 11, 13, 20, 35–6, 40, 45–6, 54n46, 59–60, 71–2, 80, 82, 89–91, 99n101, 129, 142, 145n13, 150n83, 153, 156, 158, 167, 174n49

208

Index

parliamentary supremacy 44 partial revision 11, 67, 141 partnership view 42–4 party 90 Pateman, Carole 70 the people 1, 4, 7–8, 11, 13–14, 19, 21–2, 24, 31n15, 32n39, 35, 37, 39–42, 44–8, 52n9, 54n45, 57–9, 61, 68, 70–2, 77n77, 79–83, 85–91, 93, 95, 97n45, 97n50, 98n87, 102, 109–12, 114, 116, 118–19, 124n75, 127, 130–1, 133, 135, 137–43, 145n15, 152–3, 156–61, 167–8, 169n1, 169n2, 170n8, 170n16, 171n28, 173n42, 173n43, 176–9, 182, 183n3 people’s trust 8, 80, 83 people’s veto 72, 166 Peters, Onslow 158 philosopher 103–6, 128, 180 Pinochet, Augusto 109 the political 48–9, 55n68 political associations 6, 69 political campaigns 25, 37, 159 political culture 3, 9, 26, 57, 59, 116, 140 political decisions: fundamental 86–7, 128–9, 136, 145n10 political influence 27 political law 91 political parties 6, 34n58, 37, 48, 69, 92, 94, 134, 159 pollsters 69 polyarchy 37, 69–70 Polybius 49 popular assembly see citizens assembly popular constitutional change 3, 20, 22, 139 popular initiative 38, 40, 63, 72, 74, 138, 162–3, 167, 173n43, 185n30 popular majorities 2, 4–6, 18, 23, 25, 40, 65, 72, 73n1, 160, 168–9, 176–8, 180 popular participation 3, 5–7, 9–11, 13, 21, 38–9, 46, 49–50, 57, 60–5, 68–73, 83, 91, 108–9, 111, 113, 115, 117–18, 124n77, 125n83, 127, 141–3, 154–5, 160–1, 163–5, 168, 169n2, 174n49, 183, 187–8 popular sovereignty 8, 36, 39, 80, 88, 102 Popular Sovereignty Initiative 70 populist 3, 40, 52n10, 73n1

positive law 10, 79–80, 84–6, 95, 102, 110, 116, 126, 162 Post, Robert 65 power of command 80–1 power to strike down legislation 21–2, 45, 132, 134, 166 pre-commitment 20, 58 Preuss, Ulrich 88, 111, 113 principles 6–7, 9, 11–13, 17–18, 20–2, 26, 32n39, 37, 42–7, 51, 57–72; fundamental 2, 7, 18, 67; abolition of constitutional 145n11, 146n32 private property 23–4, 26–7, 34n68 private sphere 2, 23–4 procedural democracy 6, 12, 29, 35–6, 41–5 proceduralists 36, 41 proportional representation 29, 37, 163 protest 14, 93, 115, 175, 178–82 public autonomy 24 pyramidal system 69 radical democracy 62, 112 random selection 62, 75n31, 75n34, 77n71, 163, 172n40, 180–1 real majesty 81–2, 96n12 rebellion 83 Reference re Secession of Quebec 79 referendum 2, 10, 21, 32n31, 39, 40, 44, 46, 51, 54n53, 54n54, 54n55, 62–3, 66–8, 72, 75n31, 75n32, 76n54, 78n77, 78n82, 79, 88, 90–1, 115–16, 118, 126, 133, 134, 137–8, 141–4, 149n71, 150n85, 154, 156–9, 161–8, 173n43, 174n46, 174n48, 174n49, 179–82, 183n12, 185n30, 185n31 Referendum Act 90, 165 representative democracy 54n42, 61, 63, 75n31, 165 representative institutions 1, 12, 37–8, 53n24, 63, 74n16, 84, 156, 163, 170n8, 172n40 representatives 1, 4, 21, 37, 40–4, 69, 79, 81–2, 84–6, 90, 94–5, 97, 98n70, 113, 127, 159, 170n8, 171n24 repression 179 republicans 24 Reschstaat 128 revolution 8, 10, 14, 18, 39, 48, 76n46, 80, 83, 87, 91–2, 95, 102, 110, 113, 129, 131, 157, 178–80, 184n15

Index rights 1–2, 8, 10–12, 17–18, 21–9, 33n40, 33n41, 33n50, 33n57, 34n71, 35, 38, 40–7, 51, 51n1, 58–9, 64, 67, 69, 71–2, 74n9, 74n15, 80–4, 90, 93–5, 95n2, 97n45, 103, 105–7, 110–12, 117–18, 120n26, 121n29, 121n38, 124n75, 127–8, 130–2, 138, 140–1, 147n36, 148n47, 150n82, 150n85, 152–4, 157–8, 162, 164, 166, 170n16, 174n43, 174n46, 178–9, 185n30, 186; abolition of institutions and 10, 22, 25–6, 40, 95, 111, 118–19, 141; best decisions about 42; constitutional 1, 21–2, 44–5, 140; democratic 18, 24, 26–9, 152, 186; fundamental 17, 21–6, 33n40, 35, 38, 64, 67, 69, 95, 128, 131, 140–1, 148n47; individual 23–5, 43, 127, 179; political 10, 18, 23–5, 33n40, 33n41, 38, 130, 154, 179; of political participation 10, 23, 41–5, 69, 71–2, 118, 130; to privacy 23–4; property 23–4, 26–7, 120n26; of resistance 8, 67, 80–4, 97n45, 110; to rule 105–7, 111, 121n29, 121n38; social and economic 18, 24–5, 94, 117; to vote 1, 23, 26, 33n41, 41, 69, 118, 130, 150n82, 150n85 risk 18–19, 59–60, 102, 109–14, 122n45, 174n48, 179 Rousseau, Jean Jacques 31n15, 54n52, 62, 68, 88 rule by the people 6- 7, 20, 22, 24, 35, 48, 52n10, 57–9, 73n1 rule of law 17–18, 59, 79, 122n45, 130, 140, 145 Russia: Constitution of 72 Sabel, Charles 61, 70 Scheuerman, William 87 Schmitt, Carl 7–8, 13–14, 80, 83–8, 92, 94–5, 97n45, 98n81, 98n87, 101n122, 111, 113–14, 127–37, 140, 145n10, 145n18, 149n65, 155, 162, 170n8, 170n14, 175–81, 183n3, 183n7 Schneiderman, David 26 Schumpeter, Joseph 68–9, 77n62 secession 79, 123n70 second dimension of the democratic ideal see democracy at the level of fundamental laws Second World War 68, 171n22

209

self-government 20, 24, 46, 53n24, 60 self-rule 6, 24, 52n10, 58, 73n1, 111 séptima papeleta see seventh ballot seventh ballot 92 Siegel, Reva 65 Sieyes, Emmanuel 7–8, 13, 31n15, 80, 83–8, 90, 93–5, 97n45, 97n50, 98n70, 98n81, 111, 113–14, 155 Simmons, A. J. 13, 105–8, 120n26, 121n28 size and complexities of modern societies 38, 48 Slovak Republic 123n67 social contract 8, 31n15, 83, 87, 96n34 social movement 23, 27, 64, 75n28, 93–4, 163, 169 social scientists 103–4 South Africa 99n94, 123n67, 172n32; Constitution of 99n94, 150n88 sovereign: the electors as true 81, 90, 99n105 sovereignty 5, 8, 11, 13, 20, 35–6, 39–40, 45–6, 51, 58–60, 71–3, 80–2, 84–91, 93–5, 99n101, 99n105, 101n122, 102, 110, 113, 122n45, 129, 131, 141–2, 145n14, 148n57, 152–3, 156, 158, 162, 166–7, 171n28, 180 Spain 14, 109, 123n67, 179, 181, 183, 184n16; Constitution of 67, 141 special conventions: superiority of 158 state conventions 32n31, 66, 123n67, 158, 161, 165–6 state of exception 92–3, 101n123 state of nature 84–5, 87, 96n32, 105, 120n26 status quo neutrality 27, 58 student demonstrations 178 substantive democracy 6, 41–5 substantive limits 10, 67, 118, 132, 134–6, 160 substantivists 36, 41–2 Sullivan, Kathleen 19, 31n24 Sunstein, Cass 27 superiority of special conventions 158 supermajorities 7, 20, 27, 32n31, 41, 43, 45, 47, 58, 66–8, 77n71, 127, 162 supreme bill of rights 21, 26 Syria 178–9 Tocqueville, Alexis de 45, 89 total revision 67, 129, 141, 145n15, 149n65

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Index

Tunisia 178–9, 183n11 two-thirds majority 32n31, 66–7, 70, 76n48, 142, 147n34, 162 tyranny 43–4, 77n71, 84, 97n50 unamendable constitutional clauses 127, 133, 136 unanimity 41, 140, 142 Unger, Roberto Mangabeira 63–4, 73 United Kingdom 2, 21, 30n8, 32n33, 45–6, 54n54, 68, 89–90, 127, 142, 158, 166, 169n7, 184n16; 2011 riots 184n16 United States of America 2, 4–5, 19, 28, 31n15, 32n31, 34n74, 37, 46, 58–9, 66, 70, 77n71, 77n73, 91, 99n94, 99n96, 123n67, 127, 150n8, 158, 173n43; Congress of the 32n31, 66, 70, 76n48, 76n52, 130, 144n2, 146n28; Constitution of the 4, 19, 27, 30n10, 32n31, 66, 76n47, 91, 130, 143, 147n34, 150n80, 158, 161, 171n23; constitution amendment rule 4; Declaration of Independence 87; Senate of the 71; Supreme Court of the 34n74, 52n9, 70–1, 75n41, 130, 146n28 universal suffrage 38, 101n125, 127 Urbinati, Nadia 61–2

Venezuela 14, 79, 121n67, 124n75, 138, 140–1, 150n90, 162, 171n31; Constituent Assembly of 14, 121n67, 124n75, 141; Constitution of 125n75, 138, 150n90, 172n33; Supreme Court of Justice of 79, 92, 95n4, 100n120, 147n36, 153–4, 162 violent 59, 61, 110 Waldron, Jeremy 11–12, 21, 36, 41–2, 44–6, 50, 53n24, 53n26, 54n41, 54n42, 54n45, 59, 61, 71, 107 Waluchow, Wil 13, 64–5, 76 weak constitutionalism 3, 5, 7, 10–12, 14, 118–19, 144, 153–6, 158, 160, 165, 168–9, 169n2, 175, 178, 180, 182, 186–8 Weber, Max 104, 115, 121n37 Weimar Constitution 74n14, 86, 128 Wolff, Jonathan 44 Wolin, Sheldon 12, 36, 47–50, 55n68, 58, 77n70, 159, 182 Yemen 178–9 Young, Thomas 97n50 Žižek, Slavoj 184n15