Academic

Colon-Rios on Weak Constitutionalism

By Lawrence Solum

Joel I Colon-Rios (Osgoode Hall Law School) has posted What is Left of Democracy in 'Constitutional Democracy'? Or Towards a 'Weak Constitutionalism' on SSRN. Here is the abstract:

Democracy and constitutionalism are not the same thing. Although it may appear obvious that the previous statement is correct, many contemporary constitutional and political theorists would come very close to negate its accuracy. Much has been written to show that constitutionalism and democracy, far from being in tension with each other, are in fact two sides of the same coin. In these approaches, constitutionalism is presented as the embodiment of democratic principles. The aim of this paper is to show that this kind of approach is only successful after it strips the idea of democracy of its most basic components, thus being able to transform constitutionalism into the democratic telos.

The first part of the paper consists in an examination of the concept of constitutionalism and of the ideology that drives it as a political practice. Constitutionalism, I argue, is characterized by a sacralization of the constitutional regime, a defense of the permanence of the constitution that has entrenched the right (liberal) abstract principles. Its main objective is the closure of the political, the expulsion of sovereignty from the juridical terrain. Democracy seems to stand for all that constitutionalism negates. Against constitutionalism's obsession with permanence, democracy recommends that even the most fundamental principles are subject to question and revision. The ideal of democratic openness, one of the basic components of democracy, appears to be at odds with constitutionalism. The second part will be devoted to a discussion of what is meant by democratic openness.

In the third part of the paper, I examine what I call the second basic component of democracy, namely, popular participation in government and in the positing of the laws that govern the state. Popular participation is required by the very meaning of democracy and it constituted an important -if not the most important- element of the democracy practiced in Athens. Moreover, it played a central role in the writings of modern opponents of democracy, which rejected democracy precisely because of the risks associated with the participation of ordinary citizens in the activity of governing. In contemporary discussions about the meaning of democracy, however, the ideal of popular participation is notoriously absent.

Finally, I consider the treatment that democracy's basic components receive under the theory of constitutional democracy. Constitutional democracy is the liberal attempt to balance democracy and constitutionalism. I argue that it is a failed attempt. Not only it privileges constitutionalism by retaining its fear of constitutional change and negating the ideal of democratic openness, but it also moves popular participation to a secondary plane. By way of conclusion, I introduce a conception of constitutionalism that is more consistent with the democratic ideal: weak constitutionalism.

Full post as published by Legal Theory Blog on August 07, 2008 (boomark / email).