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Constitutional reform in Europe and recourse to the people

Authors:
1
Forthcoming in: J. Gerkrath, & X. Contiades (eds.), Participatory Constitutional Change:
The people as amenders of the Constitution, Ashgate Publishing Ltd.
Constitutional reform in Europe and recourse to the people
Paul Blokker, Charles University, Prague
1
Constitutionalism in Europe is in turmoil. This is not only because of the European
integration project and its constitutional claims, but also due to important changes in the
form and role of constitutions in European societies (as well as globally). One could, with
Francesco Palermo, speak of an age of „constitutional acceleration‟, that is the
„intensification of recourse to [the instrument of] revision in order to update the
constitution‟ (Palermo 2007: 15). Ginsburg and Dixon, more in general, relate the
prominence of constitutional change and constitution-making in recent times to the „third
wave of democracy‟ that commenced in the 1970s, and which included Southern Europe
and later Central and Eastern Europe, but in a way, in particular from the 1990s onwards,
also touched the constitutional design of „established‟ democratic states (Ginsburg and
Dixon 2011: 3). Constitutional dynamics are thus not restricted to new democracies in the
making, but also involve established democratic regimes. What interests me here in
particular is how the „trend over this period has been one of increasing public
participation in the constitutional design process‟ (Blount 2011: 38).
In this chapter, I will look at one recent tendency in constitutional politics, that is, an
(possibly increased) emphasis on a recourse to popular participation in the reforming of
constitutional orders. There are now quite some examples in contemporary Europe where
constitutional revision and amendment is orchestrated in such a way as to include the
voice of the people. A transversal set of arguments in these projects of constitutional
revision is that they provide an explicit response to civic discontent, structural democratic
deficiencies, and that reforms can only be successful if citizens and/or civil society are
able to participate. In recent years, examples of such projects include Iceland, Ireland, the
Netherlands, Romania, and not least, the Convention on the Future of Europe. And also in
the UK currently proposals are being made to set up a Constitutional Convention that is to
include citizens, while two decades of constitutional reform included allusions to
democratizing the constitutional order.
The tendency towards recourse to the people is curious in a number of ways. First of all,
arguably the main tendency in European constitutional orders since 1945 has been a turn
away from the people, towards a form of „juristocracy‟ in what has been called „new
constitutionalism‟ (Hirschl 2004; Stone Sweet 2008). Second, in a related way, while the
most significant constitutional changes in Europe, related to 1989, were in important
respects about the re-establishment of self-government, in most if not all cases of Central
and Eastern European constitutionalism, the emphasis has been on legalistic, rigid and
entrenched constitutions in which there is an only relatively weak attention to civic
democratic engagement (see Blokker 2013). Third, the emergence of constitutionalism
beyond the state arguably most developed in the European context appears to involve
an unbalanced emphasis on legalistic understandings of constitutionalism, which
1
Associate professor, Institute of Sociological Studies, Department of Sociology, Charles University,
Prague. E-mail: paulus.blokker@fsv.cuni.cz.
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emphasizes aspects of the rule of law and a regulative dimension, but generally
complicates relations with democracy and self-government. In this regard, many scholars
appear to „theorize away‟ the problem of democratic legitimation in post-national regimes
(cf. Dobner 2007: 141-2; Besson 2006; see, for examples, Teubner 2012; Kumm 2006).
While democratic involvement in constitutional politics appears then as an uphill
struggle, it seems at the same time difficult to deny that some form of counter-tendency to
„apopular constitutionalism‟ or „counter-constitutionalism‟ is increasingly visible (the
term is Richard Albert‟s, Albert 2008). This counter-trend is related to democratic
innovation and legitimacy as well as the contestation of purely technocratic and legalistic
governance, and seems prominent in a number of constitutional reform projects in
Europe. In the paper I want to, first, discuss different degrees of sensibility in
constitutional theory to forms of inclusion and civic participation in constitutional
politics, concisely engaging with the dimensions of constitutional subjectivity and forms
of collective autonomy. I will search for these dimensions in what I will call legal,
political, popular, and democratic understandings of constitutionalism. In a second step, I
will turn to a number of recent examples of citizen involvement in constitution-making in
the cases of Iceland, Ireland, and Romania. Finally, I will conclude that the recourse to
the people is often more apparent than real, and that only in few instances civic
participation in constitutional politics lives up to the requirements set by normative
democratic theory.
Constitutionalism and the people: a theoretical inquiry
Legal constitutionalism
On the legal-constitutionalist view, the constitution is a legal document that can be largely
understood as providing the preconditions for democracy. Democracy can only function
as such if democratic politics abides to the constitutional limitations set to it. The
constitution - and increasingly so the idea of an included set of entrenched fundamental
rights - provide an independent and superior law that secures the working and outcomes
of democracy. One of the key assumptions of legal constitutionalism is that it is in
principle possible to reach a reasonable consensus on what such preconditions of
democracy ought to be, and how to translate them into a language of rights and
fundamental law (Bellamy 2007: 3).
A good example of legal constitutionalism is Ronald Dworkin‟s substantive view of
constitutional democracy. In the words of Frank Michelman, for Dworkin democracy
does not mean that „the people of a country ought to decide for themselves all of the
politically decidable matters about which they have good moral and material reason to
care‟ (Michelman 1999: 6), but rather means „government subject to conditions we
might call these “democratic conditions” – of equal status for all citizens‟ (Dworkin 1996:
17). In this, it is in principle possible to arrive at a pre-political set of 'essential
preconditions for democracy', the 'right' abstract principles (Dworkin 1995), „right rights‟
(Michelman 1999), or 'best answers' (Bellamy 2007), that all can rationally agree to, and
which identify what democracy ultimately is about.
2
Indeed, Ronald Dworkin's concern is
with 'what democracy, accurately understood, really is' (Dworkin 1996: 15). For Dworkin,
constitutionalism means a 'system that establishes individual legal rights that the
2
One of the most well-known formulations of such an idea is that of an 'overlapping consensus' (Rawls
1993; cf. Bellamy 2007: 101-2).
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dominant legislature does not have the power to override or compromise' (Dworkin 1995:
2). In this, the 'constitutional conception presupposes democratic conditions. These are
the conditions that must be met before majoritarian decision-making can claim any
automatic moral advantage over other procedures of collective action' (Dworkin 1996:
23). Since in a well-designed constitutional democratic system, a consensus on the right
norms can be presupposed, there is no need to change such norms in the future, only to
ensure their correct implementation. In other words, it is possible to depoliticize
principled, constitutional questions and take these out of the democratic political process
altogether, because a rational consensus has been reached or can be presumed on those
questions once a constitution is in place.
The relevant constitutional subject in Dworkin‟s substantive view, that is, those that are
able to make their interpretation of the constitution and its principles count, is ultimately
restricted to Supreme Court judges. While general debate about constitutional principles
includes „professional lawyers but also the public at large in newspapers and popular
journals‟ (Dworkin 2006: 156), the „Supreme Court has the last word‟ (Dworkin 2006:
156). According to Dworkin, it should ultimately be higher judges that identify and
interpret key constitutional principles, as they are more reliable than political majorities in
doing so (Bellamy 2007: 3). One could interpret this as that democratic politics is
'regarded not only as something apart from law, but as inferior to law. Law aims at justice,
while politics only looks to expediency. The former is neutral and objective, the latter the
uncontrolled child of competing interests and ideologies'.
3
According to Dworkin, „[i]n
some circumstances... individual citizens may be able to exercise their moral
responsibilities of citizenship better when final decisions are removed from ordinary
politics and assigned to courts, whose decisions are meant to turn on principle, not on the
weight of numbers or the balance of political influence‟ (Dworkin 1996: 30). Thus
Dworkin finds beneficial that the „public participates in discussion‟, but lays the final
„adjudicative responsibility with the judges, whose decision is final, barring a
constitutional amendment, until it is changed by a later judicial decision‟ (Dworkin 1995:
10). Citizens‟ expression of their views on constitutional principles is essential in this
view, but since citizens (or politicians) are not able to transcend a political, particularistic
understanding, judges need to guide the way to a „clean‟, purely moral understanding of
these principles. As Michelman puts it, „you have to admit the practical possibility that an
independent judiciary will tend to get closer to the truth than would be the great body of
the people or their elected tribunes in legislatures‟ (Michelman 1999: 19, 23).
In the substantive view, self-government does not mean that citizens should themselves
be engaging in making their own rules, including the fundamental rules, but self-
government rather means that persons are able to identify with laws made through a
majoritarian process, while judicial review secures the rational preconditions for this
process (Michelman 1999: 31). In other words, self-government is supposedly not about
the actual authorship of the laws, including the laws of lawmaking (Michelman 1999: 24-
5), but rather about the realization and recognition by any individual citizen that formal
politics maintains „by its actions‟ „due respect for [one‟s] own moral and intellectual
singularity, and for the interest [one] accordingly take[s] in both the contents of collective
outcomes and [one‟s] capacities to influence them‟ (Michelman 1999: 30-31). As
Dworkin argues „we must ask what rights must be reserved to an individual citizen if
submitting to the will of the majority of his fellow citizens in other circumstances is to be
consistent with his dignity‟ (Dworkin 2006: 146). Self-government is not the realization
3
Judith Shklar, cited in: Goldoni 2012: 929.
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that a citizen can directly participate in majority rule. It is rather, as Michelman
understands it, a „feeling of satisfaction or even pride that you take in lawmaking that is
done by an organization that treats you and your independence and your interests with the
kind of respect that is due to a member‟ (Michelman 1999: 32; cf. Waldron 2006: 1375).
Thus, on Dworkin‟s „partnership view‟, „constitutional rights protecting an individual‟s
freedom to make ethical choices for himself are not compromises of democracy but rather
attempts to guarantee it‟ (Dworkin 2006: 146).
The emerging view of the constitution is a relatively static, permanent framework, which
is only to a very limited extent open to political and civic influence, in the form of
amendment, revision or otherwise. The legal-constitutionalist view in essence
understands the constitution as a 'meta-norm', which is not implicated in, as it transcends,
substantive views on the common good, and in this provides a 'neutral framework that
rests on a separation of the right from the good' (Bellamy & Castiglione 2000: 174-175).
Political constitutionalism
The most visible contender of a legalistic theory of constitutionalism, which as we have
seen endorses inter alia judicial supremacy and the strong entrenchment of rights, is the
theory of political constitutionalism (see, most prominently, Waldron 1999 and Bellamy
2007). The political-constitutionalist conception takes a wholly different view of the role
and substance of the constitution, and its relation to democratic politics. Its dispute with
legal constitutionalism starts from the observation that the
need for [an] alternative and more political approach arises from the contested nature of rights.
Despite widespread support for both constitutional rights and rights-based judicial review,
theorists, politics, lawyers and ordinary citizens frequently disagree over which rights merit or
require such entrenchment, the legal form they should take, the best way of implementing them,
their relationship to each other, and the manner in which courts should understand and uphold
them (Bellamy 2007: 16; emphasis added).
Rather than understanding the constitution as a 'right basic norm', political
constitutionalists understand the constitution as providing a basic framework for resolving
disagreements over the right and the good. This also means that foundational norms
should always be subject to reconsideration and reformulation. In other words, the
constitution is not seen as in need of an entrenched set of fundamental principles, but
rather as the framework for the articulation of and deliberation over conceptions of self-
government and the common good. As Bellamy aptly expresses it: 'we could see
constitutions not as constraints imposed upon democracy but as the limits that a mature
democracy places upon itself' (Bellamy 2007: 91; emphasis added). The relation between
democracy and constitutionalism in political constitutionalism is based not on the need
for „pre-commitments‟ or extra-political guarantees and the idea of superior judgmental
capacity (of judicial experts). Rather, the emphasis is on the idea of political equality and
a thrust towards the inclusion of a wide range of people‟s judgments (see Goldoni 2012).
Political constitutionalism starts from the idea that reasonable disagreement is part and
parcel of democracy. The critique of legal constitutionalism is that a 'failure to
acknowledge the disagreements that surround constitutional values, and the resulting need
for political mechanisms to resolve them, can itself be a source of domination and
arbitrary rule that impacts negatively on rights and the rule of law' (Bellamy 2007: 145;
cf. Waldron 1999).
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The political view of the constitution opens a door for the influence of politics on the law,
in that it emphasizes the negotiation of differences and a continuous quest for mutually
agreeable conditions. Political constitutionalism does not attempt to sever democratic
politics from questions of justice and right, but, in full acknowledgement of the
impossibility of settling constitutional questions and rights issues once and for all, it
makes the relation between politics, and rights and legality visible by means of a
continuous political engagement with acceptable interpretations. In this, however,
political constitutionalism risks being less inclusive and participatory as it claims to be on
the basis of its full recognition of pluralism. As Marco Goldoni has rightly pointed out,
the view of constitutional subjectivity or agency in political constitutionalism is reduced
to the parliament (Goldoni 2014). Political constitutionalists hold that it is the legislature
that is ultimately best able to represent (always anew) the irreducibly diversity of
viewpoints in society. Indeed, 'so long as a system of equal votes, majority rule and party
competition however interpreted offers a plausible system for giving citizens an equal
say in the ways collective arrangements are organised including those of the democratic
process then a self-constituting democratic constitution that avoids dominating through
arbitrary rule will have been secured' (Bellamy 2007: 220-21). Existing, representative
arrangements are thus preferred also as means of constitution-making, while extra-
institutional actors and politics are looked at with a certain skepticism: constitutions are
structuring, enabling devices in that 'it is a matter of what a constitution affirmatively
makes possible out of what would otherwise be the loose and lurching and dangerous
politics of the streets' (Waldron 2009: 23).
Political constitutionalism's main critique is on the insistence on norm entrenchment and
judicial review in legal constitutionalism. The argument is rightly from a democratic
viewpoint that constitutional arrangements should not be imposed on a democratic
society, but should rather be the result of reflections of 'the people whose society is to be
governed by these arrangements' (Waldron 2009: 11: emphasis in original). Constitutions
institutionalize 'legislatures, large institutions, manned (peopled) in a certain way and
invested with public authority so that they can act credibly in the name of us all' (Waldron
2009: 20). The way self-government is perceived is, however, not entirely unrelated to
Dworkin's view in that it is not so much the actual possibility of civic engagement in
actual (constitutional) politics that is stressed, but rather the realization that representative
institutions offer the best arrangements for the preservation of individual dignity (in the
case of Dworkin) or respect for different viewpoints (Waldron).
The political-constitutional approach takes a more flexible view of the constitution than
the legal-constitutional one, but at the same time understands the primary constitutional
subject largely as the parliament, as the most adequate forum for debate and decision on
foundational rules and principles.
Popular constitutionalism
A set of constitutional theories that endorses more extensive popular engagement with
constitutional politics than provided either by legal or by political constitutionalism is that
of popular constitutionalism. A very influential theory in this branch is Bruce Ackerman‟s
idea of dualistic democracy. In Ackerman‟s reading of American constitutional history,
politics can be understood in a dual sense, that is, as consisting of normal politics
(normality) and constitutional politics (exceptional circumstances). In periods of normal
politics, it is political officials that engage in politics, constrained by the „constitutional
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forms imposed during rare periods of constitutional creativity‟, while ordinary citizens do
not or hardly engage in political matters. It is in periods of exceptional constitutional
politics that „mobilizational forms of mass engagement… dominate the constitutional
stage‟ (Ackerman 1991: 171).
In popular constitutionalism, the constitutional role of citizens is not reduced to the
receiving end, as in legal constitutionalism, nor to a purely indirect role through
parliamentary prerogatives, as in political constitutionalism. Rather, actual citizens‟
initiatives are relevant for changing the existing constitutional architecture, even if only
rarely so, that is, „under well-defined historical situations‟ (Ackerman 1991: 171). In
Ackerman‟s view, the citizens‟ role is not always available but occurs in specific
„constitutional moments‟ in which a „heightened constitutional consciousness‟ informs a
high level of civic mobilization in favour of constitutional change (Ackerman 1988: 163).
Such moments often involve some sort of crisis: „[t]he events catalyzing a dramatic rise
of political consciousness have been as various as the country‟s history war, economic
catastrophe, or urgent appeals to the national conscience‟ (Ackerman 1995: 66). The role
of citizens comes through in such moments in which normal politics gives way to higher
lawmaking, but such moments can only be successful if a civic „movement earns the
constitutional authority to claim that, in contrast to countless ideological fractions
competing in normal politics, its reform agenda should be placed at the center of public
scrutiny‟ (Ackerman 1991: 266).
In Ackerman‟s dualistic approach the role of the citizen is, however, largely confined to
one of support and mobilization. Ackerman‟s discussion of the constitutional convention
is one of an illegal vehicle in which „informal and unauthorized propositions‟ emerge, but
which is ultimately grounded in a popularly elected convention which is made up of
revolutionary elites (Ackerman 1991: 174). The public has a supportive rather than a pro-
active function in this constitutional theory. In his „neo-Federalism‟, Ackerman suggests
the working of a „life cycle of a successful movement in constitutional politics‟ that
begins with „sufficiently deep and broad support amongst the private citizenry‟, but then
moves onto the proposal stage (which brings in the established political parties or the
president), mobilized popular deliberation (in the appropriate political institutions), and
legal codification (with an upfront role for the Supreme Court) (Ackerman 1991: 266-67).
Ackerman‟s idea of a two-track system includes a higher lawmaking track that „imposes
specially rigorous tests upon the political movements that hope to earn the heightened
sense of democratic legitimacy awarded to spokespersons for the People‟ (Ackerman
1995: 65). In other words, much of the civic input is reduced to in an early phase -
support for an initiative, while in later stages the constitutional project, driven by
„revolutionary elites‟, becomes entirely dependent on „institutional trial‟ or „testing‟
(Ackerman 1991: 267; 1995: 65). As Ackerman claims
Only after the innovators carried their initiative repeatedly in deliberative assemblies and
popular elections has our Constitution finally awarded them the solemn authority to revise
the foundations of the polity in the name of We the People (Ackerman 1995: 64).
And elsewhere Ackerman states, „it is no easy thing for a transformative political
movement to maintain control over the presidency, Congress and the Court for a decade
or two to elaborate and consolidate a fundamental change of our constitutional principles‟
(Ackerman 2014: 5). In this, no separate democratic procedures or channels for citizen
participation are suggested (as in, for instance, in a civic initiative for amendment or the
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deliberative forum of a civic constitutional assembly).
4
Civic involvement seems for a
good part subjected to the endorsement of a cause by revolutionary elites as well as the
goodwill of formal political and institutional representatives to take up such a cause.
Indeed, „parties have played a strategic role in almost all important exercises in
constitutional politics‟ (Ackerman 1991: 282), while constitutional politics also „very
heavily relies on the good judgment of courts (284). As Sanford Levinson puts it,
„Ackerman‟s principal interest is in decisionmaking by political leaders (and, necessarily,
elites) who make decisions in the name of the People rather than in such decisionmaking
by the People themselves‟ (Levinson 2014: 4). Indeed, the „ “popular sovereigns” may be
like a Greek chorus or Shakespearean groundlings, but the focus is on the actions of the
kings and their courts‟ (Levinson 2014: 9).
What emerges from this brief discussion of popular constitutionalism is a view in which
the People matters, but at the same time performs a largely supportive role for elites who
identify the People‟s voice in „revolutionary‟ projects of constitutional revision. While
Ackerman importantly distinguishes between government and the people, the
constitutional theory mostly describes the importance of popular support for
constitutional revision projects, without which such projects would appear as privatistic
assaults on the constitution (Colon-Rios 2009: 17).
Democratic constitutionalism
In a final theoretical interpretation of constitutionalism I wish to discuss, a critical,
radical-democratic or agonistic dimension is at the forefront. The argument in 'democratic
constitutionalism' is that contemporary or modern constitutionalism is deficient in terms
of its democratic nature. On Joel Colon-Rios‟ view, democratic constitutionalism „rests on
the idea that ordinary citizens should be allowed, to the extent to which it is practically
possible, to propose, deliberate, and decide on important constitutional transformations
through the most participatory methods possible (Colon-Rios 2011a: 3). The thrust of
democratic constitutionalism is against a one-sided understanding of constitutional
democracy in which constitutional order and stability take the overhand over the
possibility for the ruled to interfere into the setting of the rules. Main problems in
contemporary constitutionalism involve exactly its depoliticizing/juridifying tendencies.
Whereas the critique of political constitutionalism, and to some extent that of popular
constitutionalism, tends to remain confined to a „test of reality‟ of the existing
constitutional order, largely reproducing its ontology, democratic constitutionalism‟s
critique addresses the foundations of the existing constitutional paradigm.
Democratic constitutionalism understands modern constitutional orders as having
significant problems with democratic legitimacy, in that a constitutional meta-dimension
overshadows a democratic meta-dimension. A democratic constitutional approach
attempts to critically analyze unbalanced constitutional forms and orders as well as to
indicate ways of re-balancing them. What is significant is that democratic
constitutionalism points to practices beyond existing institutions and sees as relevant a
„multiplicity of sites‟ where citizens can engage in democratic practice (Tully 2008: 98).
4
Ackerman does admit to the contemporary importance of rethinking American constitutional revision
practice in the light of instruments of direct democracy, not least the referendum (see Ackerman 1991:
356-7, fn 12). Recently, Sanford Levinson has however pointed to Ackerman‟s „faith in a fundamentally
anti-democratic constitution‟, while paying little attention to state constitutions that often allow for
referenda and popular initiatives (Levinson 2014: 6-8).
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Democratic constitutionalists question the legal-constitutionalist understanding of
constitutional law as 'impermeable to the passions of mass politics', that is, it can only be
'changed and interpreted by those occupying positions of power' (Colon-Rios 2013: 200-
208). They argue that such a restricted view of the relation between the citizenry and
constituent power 'can only be compatible with an extremely limited conception of
democracy' (Colon-Rios 2013: 208-15). The suggestion is 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' (Colon-Rios 2013: 223-30). A strong call in democratic
constitutionalism is in favour of the inclusion of citizens among the constitutional
subjects so that they can 'propose, deliberate and decide upon important constitutional
transformations through extraordinary mechanisms that work independently of a
constitution's ordinary amendment procedure' (Colon-Rios 2013: 223-37).
A radical democratic view of constitutional democracy claims that democracy would need
to entail a more direct and substantive participation of citizens in the democratic process,
including constitutional politics. Democratic or civic constitutionalism shares with
political constitutionalism an emphasis on the open-endedness of the democratic process,
and the ultimately open-ended nature of rights. But for civic constitutionalism this means
the nature of the constitution itself is understood in a radically different way from modern
constitutionalism‟s foundationalism. That is, whereas modern constitutionalism
understands „constitution making as an “act of completion”, the constitution as a final
settlement or social contract in which basic political definitions, principles, and processes
are agreed, as is a commitment to abide by them‟, civic constitutionalism entails a
„conversation, conducted by all concerned, open to new entrants and new issues, seeking
a workable formula that will be sustainable rather than assuredly stable‟ (Hart 2003: 2–3;
cf. Chambers 1998). While the foundational nature of modern constitutionalism is not
dissolved completely, the idea of a „final act of closure‟ is replaced by one of flexibility
and a „permanently open process‟ (Hart 2003: 3). This derives from an unwillingness to
tie down democracy to choices made by previous generations, the recognition of the
continuously changing nature of society and identity, as well as the realization of the
ultimate impossibility of grounding foundational principles once and for all.
Civic constitutionalism departs significantly from political or republican constitutionalism
in that it judges representative constitutional politics as insufficient. Indeed, according to
the latter, the „democratic arrangements found in the worlds established working
democracies are sufficient to satisfy the requirements of republican non-domination‟
(Bellamy 2007: 260). Instead, civic constitutionalism endorses a more open democratic
settlement which aims at the „extension of democratic process to include, free, open, and
responsive discussion of the constitutional settlement‟. The latter provides the framework
under which „diverse and disagreeing groups can live, while continuing to engage in a
freely accessible debate about that settlement itself‟ (Hart 2003: 5, 3).
In democratic or civic constitutionalism democratic politics is understood in its radical
sense as the „rule of people extended to all matters including the creation and
recreation of the fundamental laws‟ (Colon-Rios 2009: 23). Here, the democratic
dimension of constitutional democratic legitimation clearly has the overhand, even if the
constitutional ordering type of legitimacy is not abandoned. To this effect, civic
constitutionalism is potentially open to a wide range of pluralistic influences.
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National cases of conventions
Let us now turn to a number of cases of involvement of citizens in projects of
constitutional change and constitution-making in Europe. Three cases those of Iceland,
Ireland, and Romania indicate important shifts away from a rigid, legalistic view of
constitutionalism, with its insistence on expert or elite-based constitutional politics, and in
some cases also from political constitutionalism, with its emphasis on the pre-eminent
parliamentary role in constitutional politics. The cases relate to forms of constitutional
reform in which both legality and legitimacy are continuous, with an emphasis on
established rules of revision (even if these are in practice sometimes abandoned), in
contrast to more radical, rupturing forms of change in cases of for instance transitions
from authoritarian to democratic systems (see Arato 2012). All three cases include some
forms of more incisive civic engagement, as imagined in popular or, more directly, in
democratic constitutionalism. In this, the cases might serve as important empirical
„testing‟ of the theories explored above.
Iceland
The Icelandic case is unique in that it is the only instance of a „consolidated‟ modern
democracy in which a full-blown constitution-making process was (co-)initiated and
executed by (formally) ordinary citizens. In this regard, Icelandic constitutional politics
comes closest even if not in all respects as we will see below to the democratic
constitutional idea. The mobilization of the citizens in the wake of the severe economic
crisis that resulted from a financial collapse at the end of 2008 could be understood in
Ackermanian terms as having led to „universal alarm‟. The economic crisis led to a
„heightened constitutional consciousness‟ of the citizenry, which through widespread
protest made a variety of claims, including radical constitutional change. In Iceland, the
constitutional subjects or rather protagonists were clearly the people in some form: a
multitude gathered in frequent protest actions, in particular in Reykjavik's main square in
front of the Icelandic parliament, Althingi; civic associations that promoted radical
constitutional change, such as the Democratic Movement and the Citizens‟ Movement,
which emerged in the midst of the crisis; individual political entrepreneurs such as
Hordur Torfason, a musician who sang protest songs outside of parliament on a daily
basis from 2008 onwards (cf. Bater 2011). Baldvin Bergsson has observed that a veritable
„social movement‟ emerged from the protests against the implications of the financial
crisis in 2008-9, even if the actual initiatives to constitutional change were coming from
distinctive individuals and civic associations such as the Constitutional Society (Bergsson
2014). The call for change was not merely one of 'constitutional engineering' or
'maintenance' but included invocations of radical change in the form of an entirely novel
constitution.
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For instance, the Citizens' Movement argued in 2009 as follows:
We must make radical democratic reform to ensure that the events of the last months [the
economic and political crises, pb] will not repeat themselves... We must build from the
bottom up. To ensure this is possible we need to instigate a constitutional [assembly]. A
constitutional [assembly], if done correctly, would initiate a discourse on what kind of
5
This needs to be seen not only in the light of calls for a moral regeneration of Icelandic society in the
context of the financial crisis, but also in the context of the 1944 Constitution that had never been
significantly changed and is very similar to the 1874 Icelandic Constitution. The latter was a copy of the
Danish Constitution and reflected Iceland's suzerain status with regard to the Danish Crown. In other
words, the 1944 Constitution can only with great difficulty be regarded as an expression of Icelandic
collective autonomy.
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society we want, what values we wish to uphold and how we want to distribute power to
those that seek to represent us in government. Post collapse, the build up and
investigation needs to be put on a certain path we believe a constitutional [assembly] is
that path (Citizens‟ Movement 2009; emphasis added).
But citizens and social movements were not only the initiators of critique and change.
Citizens played a constitutive part throughout the attempt at constitution-making that was
set up in the wake of the protests. It should be noted here that according to some
observers, calls for constitutional change had emerged at various times in recent decades,
therefore some fertile political ground for radical constitutional change might be said to
have been available when the financial crisis erupted at the end of 2008. When the
government collapsed as a result of the crisis, the new prime minister became Jóhanna
Sigurðardóttir, who had been endorsing constitutional change on various occasions since
at least 1994. Both societal and political calls for constitutional change came together in
the idea of setting up a Constitutional Council, to be made up of 25 elected citizens and
with a drafting mandate, and with the explicit exclusion of political actors.
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The citizen-based Constitutional Council was effectively elected in November 2010, even
if these elections were not unproblematic. The elections for the Council were nullified by
the Supreme Court in January 2011, because of supposed procedural inconsistencies, but
the Council was subsequently appointed by Althingi (the Parliament). The Council
worked on a new draft Constitution for four months in 2011, and delivered a draft by July
of that year. The drafting process in itself was unusually open to civic input and
commenting, not least by means of the usage of new media (a website, Facebook,
Twitter), and the Council indeed appears to have been taking into account individual
comments by citizens in the deliberations. From the delivery of the draft onwards,
however, the process of constitution-making changed rather radically, in that it was now
Althingi that was supposed to deliberate the draft and decide on its future. Althingi has
been very slow in actually engaging with the citizens‟ draft (between 2011 and 2013 very
little deliberation took place), for which one reason might be a certain alienation between
the political forces and the „bottom-up‟ citizen-driven project of constitutional change.
The citizens were consulted one more time in a referendum with six questions on the
constitutional draft in October 2012, and with a relative positive result for the project, but
the citizens‟ draft was ultimately left largely undiscussed until the elections of April 2013
saw the electoral victory of largely hostile political parties, the conservative Independent
and Progressive Parties. Even if the civic-constitutional project has not resulted in
tangible, comprehensive changes, currently (summer 2015), the governing political
parties are suggesting a new referendum on constitutional changes on some of the most
significant issues (Bergsson 2015), indicating that some constitutional reform is hard to
avoid in the wake of the project of constitutional renewal.
One international expert report on the Icelandic constitutional text identified „significant
input from the public‟ and judged its civic dimension as being „at the cutting-edge of
ensuring public participation in ongoing governance‟ (Elkins et al. 2012: 11). The
constitutional drafting was evaluated as „tremendously innovative and participatory‟, and
the final result „as one of the most inclusive in history and well-above the mean of
contemporary constitutions‟. All this indicates a significant democratic-constitutional
dimension in the Icelandic experiment. At the same time, if we consider Ackerman‟s
6
Citizen deliberation was also part of a Constitutional Gathering, a deliberation day with some 1,000
randomly selected citizens, held in November 2010.
11
observations, it might be true that, since the civic draft has ultimately not survived the test
of the political institutions, the verification of the voice of the People means that it has not
spoken on this occasion.
Ireland
The Icelandic case indicates important affinities with the theory of democratic
constitutionalism, and might have to some extent influenced the constitutional revision
process that emerged in Ireland in roughly the same period. The Irish Constitutional
Convention that operated from December 2012 until February 2014 was about a partial
revision of the Irish Constitution and was not purely citizen-driven, but the process did
contain significant innovations regarding citizen participation in constitutional revision.
The set-up of a Constitutional Convention in Ireland in December 2012 probably found
its origins in the Oireachtas (National Parliament) Joint Committee of the Constitution in
late 2009/early 2010. The parliamentary Committee proposed the establishment of a
Citizens‟ Assembly along the lines of the British Colombia Citizens‟ Assembly as well as
the Dutch Burgerforum of 2006 (Farrell 2013). The Assembly was understood as enabling
electoral reform on a „non-partisan basis‟, while the establishment of such an „Assembly
would facilitate greater popular engagement with the democratic institutions as well as
enhancing the legitimacy of any proposed reform‟ (Oireachtas 2010: 15; emphasis added).
This idea of an assembly or Constitutional Convention was equally endorsed by
oppositional political parties and explicitly justified through references to citizen
involvement. The centrist party Fine Gael, one of the political promoters of constitutional
change in the wake of the economic meltdown, argued in its manifesto „New Politics‟ that
„Ireland‟s broken political system is at the heart of its economic collapse‟ and that „[i]n
any Republic the people are supposed to be supreme‟ but „Ireland today is a Republic in
name only‟ (Fine Gael 2011: 3). The manifesto argued to the involvement of citizens in
radical change and that a „Citizens Forum‟ was to „accept submissions from all groups
and members of the public on possible changes to the institutional articles of the
constitution, and encourage as wide ranging a public debate as possible on these changes‟
(2011: 4). Similar observations were made in a statement of the Labour Party:
It is time for a fundamental review of our constitution. It is essential that the
people be involved in the process. Labour proposes a constitutional convention, a
coming together of all strands of Irish society to redraw our Constitution. The
constitutional convention would include experts and specialists, but would also
include individual citizens, randomly chosen to serve in much the same way that
we choose juries (Labour 2011; emphasis added).
The Constitutional Convention that was set up did involve citizens in new and innovative
ways. Of particular interest is how citizens were selected and how the constitutional
revision process was set up (cf. Farrell et al. 2014). The 66 citizens that were selected to
participate in the Convention were selected randomly, with the help of a survey company,
which selected citizens on the basis of age, gender, region, education and socio-economic
status (Farrell et al. 2014: 3). Other members of the Convention were 33 elected
politicians, selected by various political parties. Also experts mostly political scientists -
were involved in the roles of mediators and as advisors. The Convention process
consisted of deliberative meetings roughly every month since January 2013, which would
last for a weekend, with the members of the Convention voting on final
recommendations. The mode of operation of the meetings was deliberative, and based on
12
debates around circular tables with politicians and citizens members. In some ways
following the spirit of the Philadelphia Convention, the Irish Convention went beyond its
explicit mandate and adopted 38 recommendations of reform, including proposals for the
reform of the lower house (Dáil) and the introduction of citizen initiatives.
Initially, the Irish Convention has been met by social and political indifference and
critique, including regarding its merely consultative nature. But there are indications that
the process has been more positively understood over time. Upon its completion in early
2014, the Convention generally received much more positive reviews (Suteu 2015: 267).
In terms of the Convention‟s citizen involvement and deliberative nature, it corresponds
to some of the thrust of democratic constitutionalism and an emphasis on the need for
complementary, direct-democratic instruments in modern democracies in crisis. While the
purely consultative nature deradicalised the Irish experiment from a democratic-
constitutional point of view, the process did result in some real impact. In 2014, four
referenda were promised on its basis. On 22 May 2015, a first referendum was held on
two issues, same-sex marriage and the reduction of the age of eligibility to run for
president. The first issue, same-sex marriage was approved by a large majority of the
voters (62 %), whereas the second was rejected (by 73 %).
In contrast to the Icelandic experience, the Irish experience seems to have been a largely
top-down, elite-driven experiment, remaining an exercise that is granted from above
rather than initiated from below. But while it is ultimately the political institutions that
execute the „test‟ of the popular voice as the government maintained final say over
reforms (cf. Suteu 2015: 268), in the Irish context this seems to have meant that it is a
voice that cannot be (fully) ignored.
Romania
The Romanian case of citizen involvement involves a not insignificant attempt at wider
public involvement in constitutional debate and politics, but also an unclear and very
limited impact of such involvement on actual constitutional reform. A recent attempt at
constitutional reform, starting in 2013, was not the direct result of a wider societal call for
change, but rather the reaction to continuous political infighting between institutions. In
this, the Romanian case of constitutional politics can be taken as closer to a political-
constitutional approach, but with an important twist. The recent Romanian attempts at
reform follow less a pluralistic, parliamentary approach and more a majoritarian,
governmentally driven process.
In the wake of a major constitutional conflict between president Băsescu and the
incumbent government of Victor Ponta in the summer of 2012, the Social Liberal Union
(USL) of Victor Ponta won a large majority in the December 2012 elections. The
supermajority made the prospective of significant constitutional revision possible, as the
Romanian amendment rule stipulates that amendments need to be approved by two-third
majorities in both the Houses of Parliament (art. 151(1)). One of the main objectives of
the project of constitutional reform which was effectively started in February 2013
stemmed from the insight that the intrinsic power struggle in the Romanian democratic
system, in particular related to the cohabitation between President and PM, and in distinct
ways facilitated by the Constitution‟s vagueness over presidential prerogatives
(Tănăşescu 2008), is unlikely to subside. In its 2013-16 program, the Ponta Government
has stated that:
13
The aim of constitutional revision consists in (re)gaining the trust of citizens in state
institutions through guaranteeing a predictable and stable conduct of institutionalized power. The
stake of this step consists in strengthening Romanian democracy. The fundamental law would need
to clarify the responsibilities and relations between the main public authorities and, very
importantly, to achieve the integrative function. [The] Constitution and its values should become
the binding element uniting the Romanian citizens with the state. The electoral legislation cannot
be absent from the process of rethinking the institutional architecture. The harmonization of the
legislative acts in the field and their integration in the Electoral Code, expression of a consensual
approach at the level of political class and the consultation with the civil society is one of the major
objectives of the Government.
7
Ponta argued that the main objective was to build 'constitutional peace'. His articulation
of the formal objective was that '[i]t is the obligation of enlightened minds and sensible
people to build a long-lasting peace, that is to find those mechanisms that make sure that
in a period hopefully as long as possible we will no longer have conflicts among the state
powers, political, constitutional conflicts likely to disrupt the smooth running of the
society'.
8
Constitutional reform was thus primarily driven by internal political concerns and
initiated by part of the political establishment. The substance of much of the reform
entailed fairly modest modifications of the constitutional order, but the process of
revision appeared to point to a promising and innovative civic-constitutional - way of
enhancing a democratic-constitutional culture in Romania. Rather ample space was given
to public debate and pro-democracy movements, based on an earlier experience with a so-
called Forum Constitutional in 2002. The two Forums consisted of relatively wide public
debate on constitutional reform, organized with the Chamber of Deputies. Public debates
were held in various cities throughout Romania, the Fora gave the possibility to submit
proposals for constitutional revision on the Forum‟s website, and to discuss publicly
constitutional issues on an online forum. The final outcome consisted of a report, edited
by the president of the Forum, and presented to the parliamentary commission.
One of the main forces behind the Forum Constitutional was a pro-democracy movement
Asociaţia Pro Democraţia (APD). The APD has in the past consistently contributed an
idea of 'grass roots' constitutional politics, by on various occasions making claims
towards a more participatory understanding of constitutional democracy and attempting to
raise civic awareness of constitutional matters (Andreescu 2011: 33). In the wake of an
earlier presidential and constitutional crisis in 2007, the APD had started a public
discussion on constitutional reform by the means of various public debates in different
Romanian cities. The APD self-professed aim was to increase awareness of citizens
around the issue of constitutional reform, not least with regard to the choice citizens need
to make in the constitutionally arranged for referendum in case of amendment:
Since the future reform will influence the consolidation of Romanian democracy for a prolonged
period of time, it is necessary that the possible implications of the modifications are understood by
the largest possible number of citizens. In contrast to the revision of 2003, which was made under
pressure of an external imperative, the debate on a future change of the Constitution needs to take
into account both the relations between institutions as well as relations between the state and
society, and relations between various groups in society. At the same time, given the fact that
7
Adapted from http://www.gov.ro/programme-for-government-2013-2016__l2a105576.html.
Emphasis added.
8
See http://www.agerpres.ro/english/index.php/english-news/item/194055-PM-Ponta-Building-
longterm-constitutional-peace-is-our-obligation.html.
14
every change of the Constitution is to be adopted by referendum, it is necessary to hold a public
debate on the Constitutional revision to inform citizens on the issues they will vote on. What is
more, the future modification of the Constitution offers a chance to hold an open debate which will
help to enrich the political culture of the Romanian citizens, an essential aspect of the
consolidation of democracy (APD 2008: 6).
APD had been one of the driving forces in the organization of both a 2002 and a 2013
Forum Constitutional, as an 'institutionalised structure of dialogue with civil society
regarding the revision of the constitution'.
9
In 2002, as in 2013, the intention was to
provide a public deliberative forum in parallel to the official Romanian Commission for
the Revision of the Constitution.
But while the Constitutional Forum as a civic, inclusive precursor to the parliamentary
revision process appeared procedurally speaking promising, in retrospective it seems to
have been largely inconsequential. Even if the president of the Constitutional Forum,
Cristian Pîrvulescu, argued in the wake of the Forum that it would not have been
advisable for the bicameral Commission for the Revision of the Constitution to disregard
the recommendations of the Forum,
10
the Commission has been criticized for doing
exactly that. Nine NGOs accused the Commission for the Revision of the Constitution of
a lack of transparency and as being unclear about whether civic propositions were taken
into account or not. The organizations asked the Commission to offer clear arguments for
the rejection of specific proposals and to engage in debate for a reasonable amount of
time.
11
Also the parliamentary revision process itself was criticized. Bogdan Dima,
involved in a civic initiative called The Commission for a New Constitution, expressed
strong doubts about what he calls the 'anti-revision' of the Constitution, which he thought
consists in an 'exclusively political game, generated by personal political relations of
some of the key leaders of the last years'.
12
Finally, a constitutional expert, Ioan Stanomir,
regarded the current revision process as 'lacking in vision and characterized by
amateurism'.
13
After the initial period of public debate, which included the Constitutional Forum as well
as two meetings with the Council of Europe‟s Venice Commission, the Ponta government
internally produced a constitutional revision draft in late 2013, which was submitted to
the Constitutional Court
14
and the Venice Commission in February 2014. The
Constitutional Court raised several issues of constitutionality in its review of the
amendment proposal, finding problems of inconstitutionality with the proposed changes
to 26 articles of the 2003 Constitution.
15
And according to the Venice Commission, it was
regrettable that „following some initial positive steps indicating an option for an open and
transparent approach, the revision process was lead in a less inclusive manner and did not
entirely benefit of the timeframe available and the potential input of the various circles
having shown interest, in the Romanian society, for the revision of the Constitution‟
9
Forum Constituţional (2002) Forumul Constituţional. Raport final, p. 11, available at: http://
www.forumconstitutional.ro/raport_final.pdf.
10
See http://www.rri.ro/art.shtml?lang=1&sec=5&art=389435.
11
See http://m.romanialibea.ro/stire-304031.html.
12
See http://bogdandima.ro/?p=1123.
13
See http://www.ziare.com/politica/constitutie/stanomir-amatorismul-defineste-revizuirea-constitutiei-
1239834.
14
As indicated by article 146a of the Constitution, the Constitutional Court is to review the constitutionality
of the amendments proposed.
15
See http://www.mediafax.ro/politic/analiza-comisia-de-revizuire-a-constitutiei-isi-reia-activitatea-la-un-
an-dupa-respingerea-legii-la-curtea-constitutionala-13947715.
15
(Venice Commission 2014: 32). Since the constitutional review of the Constitutional
Court in February 2014, the process of constitutional reform has slowed down
considerably (also because of retreat of the National Liberal Party from the government
coalition), being further complicated by the election of a new president, Klaus Iohannis,
belonging to the political opposition, in November 2014. Be that as it may, Iohannis has
on various moments argued in favour of a necessity of modernizing the Constitution. In
March 2015, a new parliamentary constitutional reform commission was installed,
16
whereas the attempt of the government is to finalize the process by the end of 2015.
The Romanian experience with constitutional politics seems one that could be defined as
a problematic variant of political constitutionalism, that is, populist-majoritarian
constitution-making. Key characteristics are a process that is government-driven, non-
consensual and has populist overtones (cf. Arato and Tombus 2013). A process of
constitutional revision that was initiated in a promising and inclusive way (as appreciated
by the Venice Commission), subsequently turned into a non-transparent, elite-driven
exercise in an attempt to impose a partial, non-consensual view by means of a
supermajority onto society. This majoritarian avenue seems now however blocked (April
2014), in that the supermajority has turned into a reduced majority.
Concluding remarks
All three cases discussed include significant citizen input and innovative forms of
constitutional politics. But none of the cases ultimately embraces the radical inclusiveness
of democratic constitutionalism fully. The Icelandic case comes closest, but the design of
the process ultimately appears disattached from the main political institutions, and
therefore runs into forms of filibustering and outright rejection. The Romanian case
includes a promising attempt at widespread and open public debate, but without
significant impact on actual constitutional revision, and with a complete abandonment of
publicity and inclusiveness later on in the process. The more moderate experience of
Ireland seems the most successful in that structural citizen inclusion has been realized in
an innovative way, while the process can boast relatively significant results. The ad hoc
Irish experience lacks however a robust, institutionalized form of civic influence on
constitution-making.
Acknowledgement
The author acknowledges a Research Unit, 'Constitutional Politics in post-Westphalian
Europe' (CoPolis), financed by the Provincia Autonoma di Trento, and held at the
Department of Sociology and Social Research, University of Trento, Italy.
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... To this end, the qualitative analysis combines direct participatory observation (one of the authors was the Forum's local coordinator) and desk research. The findings of our study complement and nuance the conclusion reached by Blokker (2014) that the recourse to the people serves an instrumental purpose being more apparent than real and thus rarely meets the requirements of normative democratic theory. ...
... In providing the preconditions for democracy-i.e., conditions to be met for majoritarian decision-making (Dworkin 1995;Blokker 2014)-the constitution acts like a buffer zone that isolates the contextual factors (e.g. a specific parliamentary majority, the personalization of power) and does not allow them to interfere with democratic principles. On political grounds, it sets the broad principles for political decision-making by means of establishing the functions of institutions, rights and duties of citizens, and limits to the interference of the state in areas of private life (Freeman 1990;Ackerman 1993;Dworkin 1995). ...
... While we agree with Blokker (2014) that the recourse to the people served an instrumental purpose, our findings reveal that in Romania the process was real with respect to deliberation. The input and throughput legitimacy of the deliberative Constitutional Forum show how citizens 8 GHERGHINA AND MISCOIU -subjects of the constitution-were actively and effectively involved in the problem-identification and -solving process. ...
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Mechanisms of constitutional development have recently attracted significant attention, specifically, instances where popular involvement was central to the constitutional change. Examples include attempts by British Columbia, the Netherlands, and Ontario at electoral reform, in addition to the more sweeping reforms sought in Iceland and Ireland. Each of these countries’ attempts exemplifies varied innovative avenues to reform involving participatory and partially citizen-led processes aimed at revitalizing politics. The little legal scholarship on these developments has provided an insufficient analytical account of such novel approaches to constitution-making. This Essay seeks to build upon the current descriptive work on constitutional conventions by focusing on the cases of Iceland and Ireland. The Essay further aims to evaluate whether the means undertaken by each country translates into novelty at a more substantive level, namely, the quality of the process and legitimacy of the end product. The Essay proposes standards of direct democratic engagements that adequately fit these new developments and further identifies lessons for participatory constitution-making processes in the digital twenty-first century.
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Politics in America are polarized and trivialized, perhaps as never before. In Congress, the media, and academic debate, opponents from right and left, the Red and the Blue, struggle against one another as if politics were contact sports played to the shouts of cheerleaders. The result, Ronald Dworkin writes, is a deeply depressing political culture, as ill equipped for the perennial challenge of achieving social justice as for the emerging threats of terrorism. Can the hope for change be realized? Dworkin, one the world's leading legal and political philosophers, identifies and defends core principles of personal and political morality that all citizens can share. He shows that recognizing such shared principles can make substantial political argument possible and help replace contempt with mutual respect. Only then can the full promise of democracy be realized in America and elsewhere. Dworkin lays out two core principles that citizens should share: first, that each human life is intrinsically and equally valuable and, second, that each person has an inalienable personal responsibility for identifying and realizing value in his or her own life. He then shows what fidelity to these principles would mean for human rights, the place of religion in public life, economic justice, and the character and value of democracy. Dworkin argues that liberal conclusions flow most naturally from these principles. Properly understood, they collide with the ambitions of religious conservatives, contemporary American tax and social policy, and much of the War on Terror. But his more basic aim is to convince Americans of all political stripes--as well as citizens of other nations with similar cultures--that they can and must defend their own convictions through their own interpretations of these shared values.
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The very title of Bruce Ackerman's now three-volume masterwork, We the People, signifies his commitment to popular sovereignty and, beyond that, to the embrace of democratic inclusion as the leitmotif of American constitutionalism. But "popular sovereignty," not to mention "democracy," has many conceptions, and there is a tension within Ackerman's overall project as to which of the varieties he is most comfortable with. The United States Constitution, though written (and ratified) in the name of "We the People," nonetheless adopts a theory of "representative democracy" that is purposely designed to minimize to the vanishing point the ability of "the people" to have any direct role in making national-level political decisions. They are restricted to electing purported representatives, who will make decisions in their name, with or without genuine consultation. One can contrast this to American state constitutions, almost all of which include at least some aspect of direct democracy and many of which, with California being the most prominent example, allow vigorous popular participation in governance through initiative and referendum. So an obvious question is whether Ackerman simply feels constrained by the undoubted limits of the national Constitution - one lives with the Constitution one has, not the Constitution one might wish to have - or, on the contrary, whether he affirmatively embraces the particular crabbed form of popular sovereignty instantiated in the United States Constitution and rejects the more robust forms that are available not only in theory but also in the practices of many states (and foreign countries).
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IntroductionThe Weakest Meaning of “Constitutionalism”Constitutionalism as a TheoryParticular and General ConstitutionalismExplicit and Implicit ConstitutionsConstitutionalism and Written ConstitutionsConstitutionalism and ConstraintEmpowerment and AuthorityDemocracy: Constraint or Empowerment?Constitutionalism versus DemocracyPopular SovereigntyJudicial Review of LegislationConcluding RemarkNotes
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In Brennan and Democracy, a leading thinker in U.S. constitutional law offers some powerful reflections on the idea of "constitutional democracy," a concept in which many have seen the makings of paradox. Here Frank Michelman explores the apparently conflicting commitments of a democratic governmental system where key aspects of such important social issues as affirmative action, campaign finance reform, and abortion rights are settled not by a legislative vote but by the decisions of unelected judges. Can we--or should we--embrace the values of democracy together with constitutionalism, judicial supervision, and the rule of law? To answer this question, Michelman calls into service the judicial career of Supreme Court Justice William Brennan, the country's model "activist" judge for the past forty years. Michelman draws on Brennan's record and writings to suggest how the Justice himself might have understood the judiciary's role in the simultaneous promotion of both democratic and constitutional government. The first chapter prompts us to reflect on how tough and delicate an act it is for the members of a society to attempt living together as a people devoted to self-government. The second chapter seeks to renew our appreciation for democratic liberal political ideals, and includes an extensive treatment of Brennan's judicial opinions, which places them in relation to opposing communitarian and libertarian positions. Michelman also draws on the views of two other prominent constitutional theorists, Robert Post and Ronald Dworkin, to build a provocative discussion of whether democracy is best conceived as a "procedural" or a "substantive" ideal.
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Introduction: Constitutionalism beyond the State? The Skeptic's Challenge. The language of constitutionalism has become widespread among international lawyers. International law as a whole or specific international regimes are described using constitutional language. Yet from the perspective of many national constitutional lawyers - not only, but particularly, in the United States - the application of constitutional language to international law is viewed with skepticism. A constitution, in the modern tradition, is generally understood as the supreme law of a sovereign state. The constitution is a written document, imagined as constituting and authorized by “We the People,” enforced, if need be, by the coercive power of the state. International law, on the other hand, is conventionally imagined as the law among states, founded on the consent of states, and addressing questions of foreign affairs. Within this dualist paradigm, any talk of constitutionalism beyond the state is deeply implausible. Whoever uses the language of constitutionalism in relation to public international law is suspected of effectively advocating some version of a constitutional world state. Given the central role that sovereign states play and are likely to continue to play in the international system, such ideas, whatever their merit from a purely moral point of view might be, are easily dismissed as hopelessly out of touch with reality and certainly of little value for the analysis and assessment of international law as it exists today. © Cambridge University Press 2009 and Cambridge University Press, 2010.