Constitutionalism and Democracy – Political Theory and the American-Richard Bellamy

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Constitutionalism and Democracy Political Theory and the AmericanConstitution

RICHARD BELLAMY and DARIO CASTIGLIONE

British Journal of Political Science / Volume 27 / Issue 04 / October 1997, pp 595 - 618DOI: 10.1017/S0007123497000288, Published online: 08 September 2000

Link to this article: http://journals.cambridge.org/abstract_S0007123497000288

How to cite this article:RICHARD BELLAMY and DARIO CASTIGLIONE (1997). Constitutionalism and Democracy Political Theory and the AmericanConstitution. British Journal of Political Science, 27, pp 595-618 doi:10.1017/S0007123497000288

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B.J.Pol.S. 27, 595618 1997 Cambridge University PressPrinted in the United Kingdom

Review Article: Constitutionalism andDemocracy Political Theory and theAmerican Constitution

RICHARD BELLAMY A N D DARIO CASTIGLIONE*

The term constitutional democracy can be interpreted as either an oxymoronor a tautology. On the one hand, constitutionalism and democracy can appearopposed to each other. Whereas the first term refers to restrained and dividedpower, the second implies its ultimately unified and unconstrained exercise.1On the other hand, constitutions can be presented as codifying the rules of thedemocratic game, indicating who can vote, how, when and why. Since thedemocratic ideal involves more than mere adherence to the formal proceduraldevices of democracy, such as majority rule, many constitutionalists argue thatno true democrat could consistently allow a democracy to abolish itself. Thereis no contradiction, therefore, in entrenching the rights that are inherent to thedemocratic process itself and preventing their abrogation even by democrati-cally elected politicians.2 However, democrats point out that rules constrain aswell as enable. There are many different models of democracy, which define thedemocratic rules in a variety of often incompatible ways. If democracy is tomean people rule, then the Demos should be free to redefine the rules wheneverthey want and should not be tied to any given definition. The need to keep openthe possibility of democratic review seems particularly important when oneremembers that the constitutions of many democracies have excludedsignificant categories of people from citizenship, notably women and thosewithout property, and placed severe limits on the exercise of the popular will,such as the indirect election of representatives. Of course, some exclusions andlimitations are inevitable they are intrinsic to any rule-governed activity. That

* Department of Politics, University of Reading; and Department of Politics, University of Exeter,respectively. Research for this article was supported by an ESRC research award on Languages andPrinciples for a Constitution of Europe (R000221170). We are grateful to Albert Weale, Ian Harden,Rainer Baubock and Cecile Fabre for their comments on earlier versions.

1 See S. S. Wolin, Collective Identity and Constitutional Power, in The Presence of the Past:Essays on the State and the Constitution (Baltimore: The John Hopkins University Press, 1989),p. 8; cf. also the various studies in J. Elster and R. Slagstad, eds, Constitutionalism and Democracy(Cambridge: Cambridge University Press, 1988). On the restriction of scope that constitutionalismimposes on democracy, see A. Weale, The Limits of Democracy, in A. Hamlin and P. Pettit, eds,The Good Polity: Normative Analysis of the State (Oxford: Basil Blackwell, 1989); and R. Ruffilli,Riforma delle istituzioni e trasformazione della politica, in Istituzioni Societa` Stato, vol. III,(Bologna: Il Mulino, 1991), pp. 70721.

2 Cf. P. Jones, Rights (London: Macmillan, 1994), pp. 1735.

596 B E L L A M Y A N D C A S T I G L I O N E

we are not lumbered with the exclusions and limitations of the eighteenthcentury, though, is in large part due to successive social and democraticmovements and reforms.

Here we come to a further source of potential complementarity or opposition.Most constitutions have been democratically enacted and largely derive theirlegitimacy from that fact. The great constitutional moments, be they the Britishreform acts of the nineteenth and early twentieth centuries, the conventions ofthe French and American revolutions, or the constitutional assemblies of thepost-war and post-colonial period, have been exercises of democratic politicsthat transformed earlier conceptions of democracy. If constitutions are simplyartefacts of democracy, however, then it seems difficult to accord them anyindependent weight. All democratic regimes operate within a frameworkinherited from the past, but there seems no compelling reason to prevent themfrom updating and rejecting that inheritance. The possibility of a people bindingnot only themselves but future generations as well is fraught with apparentcontradictions.3 Yet, constitutionalists reply, the notion of democracy pullingitself up by its own bootstraps or being able to abolish itself sounds similarlyodd. Surely, they argue, democracy is constituted by values, such as autonomyand equality, that it does not itself create. If so, then their belief that theconstitutional rules defining democracy cannot be curtailed even by the Demositself still holds. And so we come full circle.

In this article, we review two contrasting examples of how contemporarylegal and political philosophers have tried to cut the Gordian knot ofconstitutional democracy. Both groups seek to redefine the terms of theopposition so as to render them compatible: the first by assimilating democracyinto constitutionalism and emphasizing the importance of a framework of rightsand liberties as necessary presuppositions of politics; the second by conceivingthe constitution both as the outcome of a democratic process and as largelycoextensive with the institutions and practices of the political system. Almostall the authors reviewed are American and we emphasize throughout how theirarguments reflect their particular understanding of the constitutional history ofthe United States, with the first group favouring a liberal interpretation and thesecond a more republican one.4 Section I surveys and criticizes the standardconstitutionalist arguments for limitations on the workings of democracy.

3 Even supporters of constitutionalism against democracy regard too rigid a constitution asproblematic; see, for instance, A. de Tocqueville, who argued in favour of easy and methodic change:Recollections: The French Revolution of 1848, quoted in J. Elster, Argomentare e negoziare (Milano:Anabasi, 1993), p. 23, n. 15. This book consists of Arguing and Bargaining in Two ConstituentAssemblies, Storrs Lectures 1991, which have yet to be published in English.

4 Neither we nor the authors discussed regard these two traditions as either historically orsubstantively exclusive. On the contrary, we concur with those writers who have stressed theircomplementarity, such as J. Isaac, Republicanism vs. Liberalism: A Reconsideration, History ofPolitical Thought, 9 (1988), 34977; and S. Holmes, Passions and Constraint: On the Theory ofLiberal Democracy (Chicago: The University of Chicago Press, 1995), p. 5. It is nevertheless possibleto emphasize one more than the other.

Review Article: Constitutionalism and Democracy 597

Sections II and III respectively discuss a prominent example from the first andsecond groups of constitutional thought outlined above. Our own position,developed in the course of the discussion and stated explicitly in Section IV, isa modification and radicalization of the second view.

I. CONSTITUTIONALISM AND DEMOCRACY

The relations between constitutionalism and democracy have been subjected toanalysis in a number of recent articles and collections of essays, most of whichdraw largely on the American experience.5 These theorists indicate one wayconstitutional limitations may legitimately trump democracy and four otherways in which they promote it by protecting it against itself.6 First, someconstitutional limits to politics are deemed necessary to protect pre- orextra-political spheres, which should be immune from interference regardlessof other peoples opinions and interests. The protection of privacy and of basichuman rights unrelated to the political process, including on many accountsprivate property, fall into this category. Secondly, constitutions can help solvecollective action problems and guard against weakness of will or myopia on thepart of the people. Cass Sunstein, for example, cites several rights which states

5 Of particular importance for our discussion in this section are Elster and Slagstad, eds,Constitutionalism and Democracy, especially the essays by Holmes, Ackerman and Sunstein;W. F. Murphy, Constitutions, Constitutionalism and Democracy, in D. Greenberg, S. N. Katz,M. B. Oliviero and S. C. Wheatley, eds, Constitutionalism and Democracy: Transitions in theContemporary World (New York: Oxford University Press, 1993); N. MacCormick, Constitution-alism and Democracy, in R. Bellamy, ed., Theories and Concepts of Politics (Manchester:Manchester University Press, 1993); C. R. Sunstein, The Partial Constitution (Cambridge, Mass.:Harvard University Press, 1993); C. R. Sunstein, Approaching Democracy: A New Legal Order forEastern Europe Constitutionalism and Secession, in C. Brown, ed., Political Restructuring inEurope (London: Routledge, 1994); first published as Constitutionalism and Secession in TheUniversity of Chicago Law Review, 58 (1991), 63370; S. L. Elkin and K. E. Soltan, eds, A NewConstitutionalism: Designing Political Institutions for a Good Society (Chicago: The University ofChicago Press, 1993), notably the essays by Elkin and Sunstein; J. Waldron, A Right-Based Critiqueof Constitutional Rights, Oxford Journal of Legal Studies, 13 (1993), 1851; J. Arthur, Words thatBind: Judicial Review and the Grounds of Modern Constitutional Theory (Boulder, Colo.: WestviewPress, 1995); R. Dworkin, Constitutionalism and Democracy, European Journal of Philosophy,3 (1995), 211; J. Habernas, On the Internal Relation Between the Rule of Law and Democracy,European Journal of Philosophy, 3 (1995), 1221; Holmes, Passions and Constraint; R. Bellamy,V. Bufacchi and D. Castiglione, eds, Democracy and Constitutional Culture in the Union of Europe(London: Lothian Foundation Press, 1995); R. Bellamy, ed., Constitutionalism, Democracy andSovereignty: American and European Perspectives (Aldershot, Hants.: Avebury, 1996), and R.Bellamy and D. Castiglione, eds, Constitutionalism in Transformation: European and TheoreticalPerspectives (Oxford: Blackwell, 1996).

6 Jon Elster has rightly noted that from a purely technical point of view written constitutions havethree main functions: (1) to define and protect rights; (2) to establish a map of political powers; and(3) to fix the procedures for constitutional revision (cf. Constitutionalism in Eastern Europe: AnIntroduction, The University of Chicago Law Review, 58 (1991), 44782). We, however, wish tofocus on the conceptual justifications underlying these functions in so far as they concern therelationship between constitutionalism and democracy.


in a federal system might agree to secure on the basis of classical ruleutilitariancalculations.7 Thirdly, constitutions can facilitate politics by taking explosiveand divisive issues off the agenda. Such pragmatic considerations are held tosupport the extra-democratic protection of religious freedom and privateproperty. Fourthly, they can protect rights that are intrinsic to democracy, suchas freedom of speech and the right to vote. Finally, they may enable politics.The separation of powers, for example, allows the people, as represented in thelegislature, to subject the executive to democratic control. As such, it fostersrather than limits popular sovereignty.

A variety of arguments can be given for justifying some or all of theseconstitutional constraints. These range from traditional liberal fears of thetyranny of the majority that suggest a conflict between individual rights anddemocracy, such as are expressed in the first constraint mentioned above,through to proceduralist or more republican accounts that stress thoseconstraints further down the list as either facilitating or intrinsic to thedemocratic process itself. We shall examine each type of constraint in turn,starting with those most antagonistic to or fearful of democracy and workingthrough to those most favourable to it. Our case, developed over subsequentsections, is that only the last type is either warranted or fully consistent withdemocratic principles, since it can be applied so as to encompass the concernsthat motivate the others.

The first sort of limitation on the list reflects the standard liberal desire todemarcate a substantive sphere of individual activity from which all politicalinterference is excluded on principle.8 This distinction between political andextra- or pre-political areas is problematic. Although the politicization of all oflife is one of the hallmarks of a totalitarian state, the divide between the publicand private does not come out as neatly as this strategy implies. Powerrelationships are not exclusive to the public domain, and politics may well beneeded to curb or correct abuses of power in social and domestic life.9 Far frompolitics needing to be excluded from these spheres, it plays an active role inguaranteeing their integrity. The definition of a private sphere is not a pre- orextra-political fact, but something that is achieved through politics.

These points have been made with some force in recent years by feministsconcerned with the way too strong a publicprivate distinction has hidden thedomestic subordination and oppression of women from view, treating them aspart of a putative and sacrosanct natural familial order that should be beyond

7 Sunstein, Approaching Democracy, pp. 1618. His examples, drawn from the Americanexperience, are the Full Faith and Credit Clause and the Commerce Clause.

8 For a recent and succinct restatement of classical constitutionalism, see L. Ferrajoli, Dai dirittidel cittadino ai diritti della persona, in D. Zolo, ed., La Cittadinanza: Appartenenza, identita`, diritti(Rome: Laterza, 1994), p 284.

9 On the importance of considering the social attacks against personal liberty, cf. E. W.Bockenforde, Recht, Staat, Freiheit (Frankfurt am Main: Suhrkamp, 1991), transl. State, Society andLiberty (Oxford: Berg Publishers, 1991), in particular chap. 10.


the reach of the law or politics.10 Their arguments echo earlier complaints aboutthe injustices deriving from certain forms of the constitutional privatization ofproperty. During the so-called Lochner era for example,11 the United StatesSupreme Court ruled out not just redistributive measures but also minimumwage and maximum hours legislation as unconstitutional. As with new thinkingon the domestic situation of women, erosion of the inviolability of privateproperty in part turned on recognition that market exchanges and the resultingdistribution of resources were not natural but social processes that were to a largeextent politically determined. Consequently, they were legitimate matters ofgovernment action rather than unjustified incursions into pre-political funda-mental rights although the contrary view remains disturbingly familiar.12

A similar point can be made with regard to the other main liberal reason forlimiting government: namely, the fear that elected representatives developinterests of their own that lead them to encroach upon those of the people theyare pledged to protect. Here too it may be more appropriate to limit politics withpolitics rather than to circumscribe what politics can do, as for example publicchoice constitutionalists propose. The separation of powers can be understoodin these terms. Bicameral legislatures and the separate election of the executiveprovide standard instances of how democracy can place constraints on itself aspart of a continuing process of self-limitation that, in contrast to strategies ofprincipled exclusion, allow some flexibility in the way those limits are deployedand interpreted.

The second set of constitutional constraints are meant to promote politics byprotecting it from various types of irrational behaviour. They are typicallypresented as the product of a pre-commitment on the part of the peoplethemselves in which the Demos constrains itself.13 Consequently, they are saidto involve no direct conflict with democratic principles. The belief that membersof the populace ought to bind themselves in rational moments against errors theymight make in less lucid times is supposedly analogous to personal forms ofself-restraint, such as an alcoholics decision to sign the pledge. As such, theyare presented as examples of self-governance and autonomy, rather than as anabridgement of our collective freedom. Yet this analogy does not hold. Of

10 C. Pateman, Feminist Critiques of the Public/Private Dichotomy, in A. Phillips, ed., Feminismand Equality (Oxford: Blackwell, 1987).

11 Lochner v. New York (1905) was the most famous case of this period, and involved the SupremeCourt striking down a maximum-hours law limiting bakers to a sixty-hour week.

12 In addition to the kind of objections we have just made in the main text, the defence of propertyrights is often flawed because based on a confusion between the universal and the singular aspectsof the right itself. The former establish the right to own property in general as part of the autonomyof the individual (but this does not sanction the particular form in which property has to be enjoyed);while the latter establish the particular form that the right to own property can take in a society, sodefining the exercise of the right to property of a particular individual or group by excluding others.Cf. Weale, Limits, pp. 423; and Ferrajoli, Dai diritti, pp. 26872.

13 Cf S. Holmes, Precommitment and the Paradox of Democracy, in Elster and Slagstad, eds,Constitutionalism and Democracy, chap. 7.


course, there is a vast literature that treats the operation of the mass withindemocratic societies as prone to irrational behaviour, and fears the tyranny ofthe majority on just these grounds. But this possibility does not warrant awholesale ban on any discussion of either the rights and rules of the democraticgame or of those institutions that protect essential spheres outside it. Indeed, theincommensurability and non-compossibility of basic liberties lays them opento reasonable disagreements about how they are to be conceived and weighed,both with regard to each other and in clashes with other values and interests.Such disagreements are neither emotive nor unreasoned. Pre-commitment inthese areas cannot be compared to the self-binding of the confirmed alcoholic.Rather, it resembles an orthodox Catholic, say, ordering his friends to keep allheretical texts from him lest he fall into doctrinal error a far less edifyingmodel.14

There is also the problem that the people doing the binding may be differentto those that are bound. Thomas Jefferson raised this issue in terms of thedubious legitimacy of the living being bound by the dead, a difficulty whichbedevils all contractarian theories of political obligation that appeal to consent.15Surely, he claimed, the collective autonomy of the Demos required that eachgeneration is as independent of the one preceding, as that was of all which hadgone before, possessing like them, a right to choose for itself the form ofgovernment it believes most promotive of its happiness.16 As we shall see inSection III when discussing Ackermans neo-Jeffersonian scheme, the mainobjections to this thesis either invoke traditional liberal concerns to do with theneed to protect certain individual rights of the sort we examined above, orinvolve practical or pragmatic worries related to its workability and potentiallydisruptive effects. Either way, pre-commitment no longer offers the mainjustification.

Pragmatic considerations predominate within the third class of constraint.These involve burying sensitive or contentious issues likely to give rise toirreconcilable differences that threaten to make democracy unworkable.Religious disputes, for example, might factionalize the system and preventdisinterested deliberation or mutual accommodation in other areas, or even leadto civil strife. Removing such subjects from public debate is defended not toprotect pre-political rights but to prevent democracy from tearing itself apart orfruitlessly diverting energy and resources into tackling irresolvable rather thansoluble problems. Such gag-rules are likened to the avoidance of contentioustopics between neighbours who disagree passionately about politics but feed

14 Waldron, A Rights-Based Critique, in particular pp. 469.15 Holmes, Precommitment, offers a brief history of the doctrine, noting the importance of Paine

and Locke and also the standard criticisms of Hume, Madison and others. See too MacCormick,Constitutionalism and Democracy, and Arthur, Words that Bind, pp. 203, 2432.

16 T. Jefferson, Letter to Samuel Kercheval, 12 July 1816, in M. D. Peterson, ed., The PortableThomas Jefferson (New York: Viking Press, 1975), p. 560.


each others cats and water the plants when one of them goes on holiday.17Silence in certain areas helps keep the peace and fosters co-operation in othermatters.

As with the pre-commitment thesis, the analogy from the private and personaldomain does not transfer fully to the political and collective sphere. Myneighbours sexism may be immaterial to his ability as a cat feeder and mowerof lawns, for example, but highly pertinent to his views on issues of public policyand my reaction to them. Like the other constitutional constraints examined sofar, there is a danger that isolating a matter from public scrutiny serves simplyto entrench an unjust status quo and gives tacit support to one of the sides inthe debate. In such cases, removal is as likely to undermine democracy as toreinforce it. If redress cannot be obtained in principle through regular politicalchannels, then aggrieved parties will be tempted to resort to more drasticextrapolitical remedies. Indeed, they may well be justified in doing so since thedemocratic credentials of a system that prevents discussion of the matters itscitizens feel most passionately about are dubious to say the least.18

The fourth kind of constraint promises a closer fit with democracy. Accordingto this line of thinking, whilst substantive issues ought to be decided by thedemocratic process, constitutions have a role to play in protecting the proceduralrules of democracy. Once again, this thesis has a distinguished Americanpedigree,19 although similar arguments of course have appeared in othercultures. For Chief Justice Earl Warren, the presumption of constitutionality[was] based on the assumption that the institutions of state government arestructured so as to represent fairly all the people.20 On this basis, the WarrenCourt from the mid-1960s onwards reviewed a number of State electoral lawsand districting arrangements with a view to ensuring they met this standard. Thedifficulty is that matters of participation and process are as contested as mostother political issues. People will disagree about how fairness ought to beinterpreted and the degree to which it ought to be balanced against other values.Thus, as in Britain, there is an American debate about the pros and cons ofproportional representation, the legitimacy of special electoral quotas forparticular disadvantaged groups, the relative merits of functional as againstterritorial representation and the like.21 In many respects, these are not simplyarguments about process but also about substance, since one factor in almost

17 Cf. S. Holmes, Gag Rules or the Politics of Omission, in Elster and Slagstad, eds,Constitutionalism and Democracy.

18 C. R. Sunstein, Constitutions and Democracies: An Epilogue, in Elster and Slagstand, eds,Constitutionalism and Democracy, pp. 33940.

19 The key statement here is fn. 4 of United States v. Carolene Products of 1938. For a cleardiscussion of the issues, see Arthur, Words that Bind, pp. 4852. The fullest philosophical defenceof the proceduralist argument is J. H. Ely, Democracy and Distrust: A Theory of Judicial Review(Cambridge, Mass.: Harvard University Press, 1980).

20 Quoted in Arthur, Words that Bind, p. 50.21 See, for example, D. J. Amy, Real Choices/New Voices: The Case for Proportional

Representation Elections in the United States (New York: Columbia University Press, 1993); and


any evaluation of a procedure is the type of outcome it leads to. To impose aparticular view of these issues as the most fair through judicial review of theConstitution would be as potentially damaging to democracy as the otherlimitations we have so far discussed. Even the entrenchment of proceduraldemocratic rights, therefore, can be regarded as undermining the autonomy andresponsibility for decision making that define democratic citizenship and linkthe individual to the polis.

Similar criticisms might be thought applicable to our final set of constitutionalmechanisms, such as the separation of powers, that are designed to enablepolitics. However, there is an important difference between the previous fourand this last category. The former offer a normative framework for politics. Incontrast, these refer to matters of institutional design through which principlesmay be debated and either accepted or rejected. As such, this approach harksback to the ancient conception of a constitution as describing the characteristicsand form of the body politic, as opposed to the more modern view ofconstitutions as embodying a pre-political higher law.22 Indeed, a number ofrecent commentators have stressed that the American Constitution, at least asinterpreted through the Federalist Papers, ought to be understood in theseterms.23 Its key features are not the Bill of Rights and judicial review by theSupreme Court, which were absent from the original scheme, but the federaliststructure, the various forms of representation, and the mutual checking ofPresident, Congress and Senate. It was through these institutional means thatminority interests were to be protected and deliberation on the common goodpromoted, rather than via the constitutional entrenchment of rights. Whereas theearlier constraints derive their rationale from a largely instrumental conceptionof politics which equates democracy with a crude majoritarianism,24 this viewsees politics in more deliberative terms and seeks to encourage policy makersto consider minority rights and interests when making their decisions.

Of course, to the extent that these institutional devices foster a particularquality of politics they cannot be regarded as totally process orientated. Thereis nevertheless a difference between declaring certain issues as beyond politicaldebate as a matter of principle and an approach that provides procedures thatensure that the sorts of concern lying behind such exclusions are taken into

(Fnote continued)L. Gauinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (NewYork: Free Press, 1994).

22 See C. H. McIlwain, Constitutionalism Ancient and Modern (Ithaca, NY: Cornell UniversityPress, 1940), chap. 2.

23 For example, B. Ackerman, We the People: Foundations (Cambridge, Mass.: HarvardUniversity Press, 1991), chap. 7; Sunstein, Partial Constitution, chap. 1; R. Bellamy, The PoliticalForm of the Constitution: The Separation of Powers, Rights and Representative Democracy and S.Elkin, Madison and After: The American Model of Political Constitution, both in Bellamy andCastiglione, eds, Constitutionalism in Transformation.

24 For example, Dworkin, Constitutionalism and Democracy, pp. 25.


account and accorded especial weight. Moreover, there is no circularity indevising a set of procedures to debate differences over procedures, so that thisargument can escape the criticisms we made of procedural rights above. For theadoption of a given procedural process does not necessarily bias the decisionin such a discussion in its favour, as the ability of organizations to reformthemselves amply testifies.25

I I. THE CONSTITUTION OF POLITICS: JOHN RAWLSS POLITICALLIBERALISM

John Rawlss Political Liberalism offers a novel defence of the liberalarguments for constitutional democracy examined above.26 He contends thatwithin a pluralist society, the stability, fairness and legitimacy of the politicalsystem requires the separation of the public from the private sphere, and thering-fencing of core democratic values. Constitutions should not only preventdemocracy interfering with the private beliefs and interests of individuals, theyalso must act to hinder personal or self-interested considerations having anundue influence on democratic decisions. As an additional safeguard, theyshould defend democracy from itself by removing the rights and liberties at theheart of the democratic process from the political agenda by placing theirinterpretation and protection in the hands of a constitutional court.

Rawlss theory derives from a fairly standard liberal interpretation of theAmerican Constitution that gives pride of place to the Bill of Rights and theSupreme Courts power of judicial review.27 However, the motivation behindhis triple restriction of the political sphere is not the promotion of the traditionalliberal values of autonomy, individuality and rationality. He aims for a politicalconception of justice that is freestanding.28 Rawls maintains that the primesource of tension in modern societies is the conflict between opposed ideologicaland cultural views. He contends that such disputes are rarely rationallyresolvable due to what he calls the burdens of judgement and the difficultiesof identifying and interpreting relevant evidence in ethical argument.29 Hisconstitutional scheme avoids this problem because the isolation of core politicalprinciples supposedly removes their dependence on any given extra-political setof commitments, liberal or otherwise, and renders them acceptable to peopleholding a wide range of beliefs. By being obliged to abstract from their

25 Waldron, A Rights-Based Critique, p. 40.26 Cf J. Rawls, Political Liberalism (New York: Columbia University Press, 1993), in particular

Lectures 1, 4, 6 and 8. The main ideas were expressed in two earlier articles: Justice as Fairness:Political not Metaphysical, Philosophy and Public Affairs, 14 (1985), 22351; and The Idea of anOverlapping Consensus, Oxford Journal of Legal Studies, 7 (1987), 125.

27 This feature is particularly evident in Lectures 6 and 8 of Rawls, Political Liberalism, forexample pp. 23140 and pp. 34063, which consist of detailed accounts of the Supreme Courtsfunction and a discussion of certain test cases with regard to free speech and equal opportunities.

28 Rawls, Political Liberalism, p. 10.29 Rawls, Political Liberalism, pp. 548.


distinctive metaphysical, ethical and epistemological allegiances, Rawlsbelieves citizens can arrive at an overlapping consensus on the role andbasis of politics. Such agreement makes peaceful social co-existence and co-operation between a plurality of groups and individuals possible and guaranteestheir mutual toleration.30

Rawlss theory suffers from many of the failings we identified with the liberalconstitutionalist position in the last section. We shall argue that the proposedinsulation of the political sphere from peoples prime concerns is not onlyimpossible but also undesirable. It prevents politics from performing its crucialfunction of reconciling differences through negotiation and debate, whilstrisking excluding important minority issues from the political agenda andthereby delegitimizing the public sphere the very problem Rawls seeks toavoid.

Rawlss theory of an overlapping consensus on political values rests onclaims of both a socio-historical nature and of a more philosophical kind.Sometimes, Rawls argues he is only articulating the ethos of the liberaldemocratic tradition as it has developed since the wars of religion of thesixteenth and seventeenth centuries.31 Originating as a modus vivendi thanks toa fortuitous equitable balance of power between competing religious groups,liberal democratic values have gradually become part of the unconsciousconvictions of most citizens within Western societies. The philosophers taskis to bring these principles and their underlying rationale to light so that theymay be adequately protected. The original position should not be interpretedas an objective point of view for judging the justice of all possible societies andmoralities sub specie aeternitatis, as he appeared sometimes to argue in ATheory of Justice. Instead, it serves as a device of representation that modelsthe basic intuitive ideas at the heart of the liberal democratic tradition and bringsthem into some degree of reflective equilibrium.32

We find this argument deeply unsatisfactory. To link the foundations ofdemocracy to the contingencies of a particular historical tradition risks fallinginto relativism. Such an argument tells us neither which democratic tradition weought to opt for,33 and as we observed above many past democracies have beensingularly restricted, nor why any one of them is to be regarded as superior toother possible forms of government.34 By naturalizing the formation of an

30 Rawls, Political Liberalism, pp. 914.31 Rawls, Political Liberalism, Introduction.32 Rawls, Political Liberalism, pp. 228.33 Cf. Rawls, Political Liberalism, pp. 2345.34 In his review of Political Liberalism, Ackerman emphasizes the danger of relativism implicit

in Rawlss new position (cf. B. Ackerman, Political Liberalisms, Journal of Philosophy, 91 (1994),36486). He argues that Rawlss political liberalism is worryingly parasitic upon liberal practice(p. 375), and he tries to suggest that appeals to the public political culture of present democraciesshould be distinguished from a discourse based on the idea of an overlapping consensus (pp. 3767).He also argues in favour of a constitutive form of public reason (p. 368), one on which citizensof the liberal state can construct a new dimension to their social identity instead of stripping


overlapping consensus in democratic societies, Rawls seems to offer aPanglossian view of the liberal constitution as though it could be founded onno lasting wrong, and, more to the point, as though no regress from it werepossible. Moreover, there is a certain incoherence in this argument even in itsown terms. If citizens really do act on liberal democratic principles already, then,as conservative and communitarian critics of liberalism point out, articulatingthe theoretical basis of this practice risks producing a rationalistic and limitedabridgment that fails to do justice to its true complexity and so potentiallyundermines it.35 Surely it is because Rawls believes this consensus can no longerbe assumed that he feels obliged to defend it.

Not surprisingly, Rawls ends up invoking stronger arguments of a morephilosophical character. Democracy, he contends, rests on a distinctiveconception of the citizen as possessing two moral powers: a capacity to form,revise and pursue a conception of the good, and a sense of justice.36 This modelof agency is essential to his claim that all citizens can identify with his twoprinciples and, most importantly, makes it possible for them to distinguish theirpublic from their private persona. Unfortunately for his project, such aperspective will only prove acceptable to a liberal who conceives society interms of a collection of free and equal individuals pursuing autonomouslychosen goals. Such a person already holds Rawlss political conception ofcitizenship in his or her private life. Yet Rawls concedes that there are manypeople who have affections, devotions, and loyalties that they believe theywould not, indeed could and should not, stand apart from and evaluateobjectively.37 Their religious, moral or other convictions are intrinsic to theirpersonal identity. In contrast to the liberal, Rawlss view of citizenship is notcostless for them. It challenges their integrity and potentially threatens certainof their vital interests. For example, demands for the public funding of religiousschools appear ruled out and so is religious or other non-political reasoningconcerning morality when debating matters such as capital punishment orabortion. In such cases, however, non-liberals might feel primarily bound by anon-political conception of justice stemming from God or some other source.

(Fnote continued)themselves of their other attachments and obligations in order to enter the public space (pp. 36971).Michael Sandel (cf. Review of Political Liberalism, Harvard Law Review, 107 (1994), 176594)suggests that it is possible to interpret Rawlss revised position as thoroughly historicist andantiuniversalist (Sandel quotes here from Richard Rorty), so that in this view social policy needsno more authority than successful accommodation amongst individuals (p. 1175). Sandel, however,opts for a different interpretation (see below pp. 178994). See too R. Bellamy and M. Hollis,Liberal Justice: Political and Metaphysical, Philosophical Quarterly, 45 (1995), 119, at p. 14.

35 The locus classicus for this argument is probably E. Burke, Reflections on the Revolution inFrance (Oxford: Oxford University Press, 1993), for example, pp. 335.

36 Rawls, Political Liberalism, p. 19.37 Rawls, Political Liberalism, pp. 301.


Why should they feel obliged to put to one side the truth as they see it and adopta somewhat alien (and alienating) Rawlsian political language?

Rawls has no satisfactory answer to this question. At times, he stresses largelypragmatic reasons stemming from an interest in stability.38 However, this isessentially an empirical claim of dubious validity, as we saw when discussinggag-rules in the last section. It assumes that people will always prefer a quietlife to protesting against what, from their private point of view, is an injusticeor a lack of concern. Since there is plenty of evidence to suggest people are notalways so passive, such exclusions may well have the opposite effect ofstimulating protests that go outside official political channels. The onlyalternative, however, appears to be for him to go on the attack and argue for thesuperiority or truth of the liberal position. However, Rawls himself signals theprime danger of this strategy, since he doubts whether a comprehensiveliberalism could ever gain widespread acceptance except with the oppressiveuse of state power.39

Rawlss difficulties stem in great part from his having cut himself off fromthe resources of politics. In spite of its designation as a political conception ofjustice, Rawls shows a decided antipathy to most forms of democratic decisionmaking. He insists that the basic liberties, which on his view underpindemocracy and provide the language of political argument, must themselves beno longer regarded as appropriate subjects for political decision by majority orother plurality voting They are part of the public charter of a constitutionalregime and not a suitable topic for ongoing public debate and legislation.40 Likethe proceduralist thesis criticized above, this argument overlooks the degree towhich the political sphere is itself a disputed matter.

Rawls admits that conflicts between the different liberties occasionally arise.However, he believes that a given liberty can only be restricted by a differentliberty, and the general intention must always be to promote to the full the overallscheme.41 Moreover, he thinks that such balancing should only be done byjudges in a constitutional court. The basic liberties, though, may prove not onlynon-compossible but also incommensurable. The way we characterize anygiven liberty and identify the constraints that determine its presence or absencedepends on normative and empirical judgements that he admits the burdens ofjudgement make subject to reasonable disagreement. Such factors not onlyundermine the neutral balancing of liberties, they may even result in a failureto agree whether a conflict of liberties exists or not. Needless to say, the problemof on-balance judgements becomes even more intractable when liberty has tobe weighed against other values because the exercise of freedom itself causesharm or suffering. These sorts of difficulties lie at the heart of some of the most

38 See especially Rawls, Political Liberalism, p. xxv, where he describes stability rather than thehighest good as the defining issue of political justice.

39 Rawls, Political Liberalism, p. 146.40 Rawls, Political Liberalism, p. 151, n. 16.41 Rawls, Political Liberalism, Lecture 8.


heated contemporary American constitutional debates, from disagreementsover the legitimacy of affirmative action or welfare to debates about thecharacter and range of free speech raised by issues such as pornography andofficial secrets. In these sorts of cases, it will be impossible to weigh up the basicliberties involved, and in some cases balance them against other values, withoutreferring to our comprehensive moral commitments.42

These considerations substantially weaken the case for restricting the debateof constitutional and other principled matters to the Supreme Court. Rawlssreasons for so doing appear once again to be largely pragmatic. Judges legaltraining and life tenure supposedly render them relatively immune to non-political influences compared with politicians, and so they are more inclinedto reason solely in terms of public values when constitutional fundamentals areat stake.43 However, we have called into question the theoretical possibility ofisolating these values in this way. If this criticism is correct, then it will beimpossible for judges to resolve conflicts between the basic liberties underdiscussion in a pure manner simply on the basis of an interpretation of higherconstitutional law. Rather, they will end up drawing on their own morecomprehensive, and often partial, background values, opinions, prejudices andinterests.44 As a result, the practical consequences of such judicial foreclosuremay be quite other than those anticipated by Rawls.

Once the consequences of a decision for the interests and values of variousgroups are recognized as relevant to how we understand and evaluate theprinciples in play, then the unrepresentativeness of the judiciary and itsunresponsiveness to social influences will become drawbacks instead ofadvantages. The very political isolation that commends the judiciary to Rawlsalso renders them rather poor at weighing up how policies are likely to affectsociety at large. Legal reasoning is often too circumscribed and their ownexperience too narrow to take them into account. Cass Sunstein has pointed out,for example, how the traditional legal model of compensatory justice is ill-suitedto understanding the problem of discrimination since it does not usually consistof a well-defined set of discriminatory acts by identifiable persons againstparticular victims. He also notes how resolving such problems requires quitecomplex social reforms that courts are badly placed to provide or to motivatesupport for. He cites busing policy as a case where legal intervention failed to

42 This criticism is developed more fully in R. Bellamy, Pluralism, Liberal Constitutionalism andDemocracy: A Critique of John Rawlss (Meta)Political Liberalism, in J. Meadowcroft, ed., TheLiberal Political Tradition: Contemporary Reappraisals (Cheltenham: Edward Elgar, 1996).

43 Rawls, Political Liberalism, p. 240. This position is put forward most forcefully by R. Dworkin,The Forum of Principle, in A Matter of Principle (Cambridge, Mass.: Harvard University Press,1985).

44 For a pathbreaking, if occasionally overstated, analysis of this phenomenon amongst Britishjudges, see J. G. A. Griffith, The Politics of the Judiciary (Glasgow: Fontana, 1981). Parallelobservations so far as American courts are concerned have fuelled the Critical Legal Studiesmovement; for example, M. Tushnet, Red, White and Blue: A Critical Analysis of Constitutional Law(Cambridge, Mass.: Harvard University Press, 1988).


consider the knock on effects for other related forms of public expenditure, suchas medical and welfare programmes, or potential popular resentment. Politics,in contrast, provides a better forum for getting a rounded view of an issue andpromoting popular support for the policies that emerge precisely because it isopen to the views and concerns of the people at large. Moreover, politicaldeliberation need not be purely self-interested. The New Deal, and the civilrights and environmental movements offer well-known instances of principledpolitics that have probably done far more in effecting social change than anyisolated court decision. Indeed, Sunstein argues that many landmark SupremeCourt decisions, such as Brown v. Board of Education and Roe v. Wade, havebeen surprisingly ineffective and that the changes with which they arecommonly associated have come from independent legislative and executiveaction.45

Rawlss political liberalism overlooks the role of politics. Convincing peopleof the merits of a given policy and justifying a given exclusion involves moralargument and hence political debate. An overlapping consensus has to bepolitically constructed by exploring what can be resolved through politicaldeliberation and what must remain matters of reasonable disagreement,concerning which we either agree to disagree or as far as possible attempt to findsome acceptable compromise solution. As Bernard Crick has remarked:Diverse groups hold together because they practise politics not because they agreeabout fundamentals, or some such concept too vague, too personal, or too divineever to do the job of politics for it. The moral consensus of a free state is notsomething mysteriously prior to or above politics: it is the activity (the civilizingactivity) of politics itself.46

Of course, different forms of conflict exist and some may prove more intractableand divisive than others. But, as we hope to show in the next two sections,politics may prove capable of overcoming these difficulties.

I I I. CONSTITUTIONAL POLITICS: BRUCE ACKERMANS WE THEPEOPLE

Bruce Ackermans We the People provides one possible account of how toestablish an overlapping consensus on the basic structure of society byappealing to the resources of democratic politics. He argues that we mustdistinguish between normal politics, which occurs under settled constitutionalsystems, and constitutional politics, which arises in exceptional times andplaces the whole system of government in discussion. He believes that this

45 Sunstein, Partial Constitution, pp. 1459.46 B. Crick, In Defence of Politics (Harmondsworth, Middx: Penguin, 1962), p. 24; cf. also

I. Hampsher-Monk, The Individualist Premise and the Practice of Politics, in I. Hampsher-Monk,ed., Defending Politics (London and New York: British Academic Press, St. Martins Press, 1993).


dualist scheme47 cuts through the vicious circularity that surrounds therelationship between constitutionalism and democracy.

Ackerman contends that the constitutionalists objections to simple majori-tarianism are valid with respect to normal politics but do not hold forconstitutional politics. During normal politics, people do not speak with asingle voice but are divided into different ideological factions and interestgroups. At such times, the democratic process is best captured by an economicmodel which characterizes voters as instrumental agents bent on maximizingtheir own preferences. Consequently, fear of a tyrannous majority during suchperiods is fully justified: judicial review, divided representation and Madisonianchecks and balances are needed to curb such tendencies as much as possible.48Constitutional politics, in contrast, only takes place when some national crisismanages to unite the people and leads them to transcend their own particularinterests and consider the common good. On such occasions, political decisionmaking is deliberative rather than economic in nature. The aggregating andtrading-off of group interests gives way to debate on the basis of publicallyjustifiable reasons. The aim is no longer the will of all so much as the generalwill. As a result, objections to the will of the majority lose much of their force.Instead of representing the aggregate of the largest number of personalpreferences, which then gets imposed on others who wanted something quitedifferent, a deliberative majority reflects a general opinion on the rules andprinciples necessary to benefit everyone. In this latter case, voters should alreadyhave taken the rights of other individuals into account when making theirdecision and, when necessary, weighed them as best they could.49

Ackerman identifies three instances of constitutional politics in the UnitedStates the Founding, Reconstruction and the New Deal. These constitutionalmoments established a framework for normal politics that the Supreme Courtcould then defend from populist incursions until such time as we the peoplereconvened to reform it.50 This thesis aims to synthesize three different viewsof constitutionalism.51 The concerns of rights foundationalists can be cateredfor because dualist democracy gives rights special protection by making themonly reformable in the context of constitutional politics. Between times they canbe upheld by judicial review. He also hopes to accommodate the views ofmonist democrats, who believe that the will of the people should alwaysprevail. These theorists make the mistake of believing that the popular will isexpressed in the ordinary law-making of normal politics. In fact, at such timespersonal interests tend to supervene over the national interest, so that theeveryday legislation of governments reflects at best majority preferences ratherthan the common good. However, the constraints imposed on majorities by the

47 Ackerman, We the People, pp. 333.48 Ackerman, We the People, pp. 1813; 18695.49 Ackerman, We the People, pp. 26694.50 Ackerman, We the People, pp. 58104.51 Ackerman, We the People, pp. 724.


constitution and its judicial guardians result from constitutional politics and sodo genuinely mirror the collective voice of the people. In bowing to them,therefore, governments submit not to certain elites or imposed norms but to theconsidered will of the Demos. Finally, Ackerman also tries to take the approachof historicist interpreters of the constitution on board. This group divides intoroughly two camps: those who argue that judicial interpretation shouldconcentrate on divining the original intent of the founders, and those who regardthe constitution as an evolving document that judges need to update to reflectcurrent conditions. Ackerman merges the two within his dualist perspective. Therole of Supreme Court judges must be to uphold the intentions of the people asexpressed at the last relevant moment of constitutional politics. Since theconstitution has never been entirely rewritten, this will almost always involvethem in a complex process of integrating various elements from each of the threemoments. The Founders intentions remain important, but have been modifiedby later new beginnings. The constitution does evolve, but not as a result ofjudicial interpretation. It would be quite illegitimate for judges to take on theresponsibility of updating it. Rather, the judges role is to force the people todeliberate on whether they think change is necessary or not by upholding thestatus quo until they are sufficiently minded to do so.

Recognizing the constitutional role of politics involves a break withtraditional views of constitution-making processes and their self-legitimizingqualities. Liberals and republicans part company at this point. The former insist,as Rawls puts it, that the idea of right and just constitutions and basic lawsis always ascertained by the most reasonable political conception of justiceand not by the result of an actual political process.52 The latter subscribeto the opposite view, providing an account of periodical constitutional pre-commitments as an actual, as opposed to a hypothetical, event.

A liberal might still object that since constitutions aim to embody universalhuman rights or rights intrinsic to the procedures of democracy, constitutionalpolitics is at best superfluous, at worst pernicious.53 Given that such rights canbe justified, their democratic legitimation adds little or nothing to them whilstrisking placing them in jeopardy. This division reproduces the aforementioneddebate between Madison and Jefferson over the utility of periodic constitutionalconventions.54 Whereas Jefferson thought they were required to avoid any livinggeneration being bound by the decision of the dead,55 Madison believed they

52 Rawls, Political Liberalism, p. 233.53 One of the objections advanced against Ackermans distinction between normal and

constitutional politics is that it does not solve the dualism between reason and consent which is atthe centre of Ackermans own analysis, cf. M. and W. A. Galston, Reason, Consent, and the USConstitution: Bruce Ackermans We the People, Ethics, 104 (1994), 44666. Don Herzog hasobjected that Ackermans dualism confuses three different questions: the subject, the manner andthe object of political action: Democratic Credentials, Ethics, 104 (1994), 46779.

54 Cf. Holmes, Precommitment, pp. 21521.55 Jefferson, Letter to James Madison, 6 September 1789, The Portable Thomas Jefferson,

pp. 44451.


were unnecessary and potentially destabilizing.56 From a Madisonian perspec-tive, Ackermans theory comes close to falling into the Jeffersonian error. If youget matters right the first time, then there should be no need for any futureconstitutional politics. Next time you might make a mistake.

Although the story Ackerman tells has a decidedly Whiggish tone, with eachconstitutional moment leading in a progressive and more egalitarian direction,the ghost of a potential Reagan revolution haunts the pages of his book.57 Reaganwould have radically shifted the constitution in a libertarian direction thatAckerman clearly would have deplored. Yet he appears to accept that hadReagan mobilized popular support for a counter New Deal, then the peoplewould have spoken and he would have had to live with the result. Similarly, heregards as great wrongs the acceptance of slavery and the exclusion of womenfrom the franchise at the Founding, the radical interpretation of freedom ofcontract so as to undermine all attempts at employment legislation duringReconstruction, and the absence of an adequate welfare state even after the NewDeal. In his view, these policies were never acceptable. How then can he endorsethe constitutional politics that gave rise to these injustices?

Ackermans response to such criticisms has been disappointing.58 Sometimeshe seems to accept them and say that he has simply been arguing that historicallythe American constitution has developed in this way. He even advocates theirrevocable entrenchment59 of social and economic rights alongside civil andpolitical rights as an ideal conclusion to the long history of Americanconstitution making.60 This historical gambit raises a further set of objections,however. If dualist democracy is a peculiarly American institution,61

56 J. Madison, Letter to T. Jefferson, 4 February 1790, in M. Meyers, ed., The Mind of the Founder:Sources of the Political Thought of James Madison (Hanover, Pa.: Brandeis University Press, 1981),pp. 1769.

57 Ackerman, We the People, pp. 506; on Reaganism as an attempt at a counterrevolution againstthe legacy of the New Deal, cf. Wolin, Collective Identity.

58 Cf. B. Ackerman, Rooted Cosmopolitanism, Ethics, 104 (1994), 51635.59 There are two different senses in which one can understand the entrenchment of rights: in the

constitutional sense of rights which have special protection against normal procedures of legislationand policy making (this is the meaning that Ackerman gives to all constitutional rights in dualistdemocracies, where absolute entrenchment can only be conceived as a temporary measure); and inthe supra-constitutional sense of irrevocable entrenchment, revocable only by a complete subversionof the constitutional regime.

60 Ackerman, Rooted Cosmopolitanism, pp. 5335; cf. also We the People, pp. 31922. Thisconclusion is in line with the standard cosmopolitan view of constitutionalism according to whichif certain fundamental rights are established to defend the individual against the majority, there isno particular reason why a qualified majority (in either quantitative or qualitative terms) shouldbe any different from a simple majority (for a statement of this position, cf. Ferrajoli, Dai diritti,p. 285). Indeed, in his review of Political Liberalism, Ackerman seems to adopt a much morestandardly liberal position, cf. Political Liberalisms, pp. 36486. The kind of distinctions whichin this piece Ackerman makes between his and Rawlss liberalism do not reflect the one identifiedin our article, which is mainly based on Ackermans position as put forward in We the People.

61 In fact, the uniqueness argument is easily refuted by considering the whole debate on therelationship between constituent power and constituted powers in France since the Revolution. See


then it is unclear that any other nation either could or should adopt it, thoughAckerman proposes they ought to in his The Future of Liberal Revolution.62 Nordoes an appeal to history necessarily offer any compelling reason for Americansto continue doing so. After all, the fact that something has functioned well inthe past may be no more than chance and might even suggest that we need todiscard it if the circumstances of the future turn out to be radically different fromthose that obtained heretofor.

At other times, he offers a more pragmatic defence of his theory.Constitutional moments, he suggests, are in the nature of things. In the past thosewho have entrenched certain constitutional provisions have made gravemistakes, in the American case condoning slavery, the oppression of women andsocial inequalities. Given human fallibility, similar errors are likely to occur inthe future. Our best defence against oppression on the one hand and anarchicrevolution on the other is to regularize the conditions and forms under whichperiodic constitutional review can take place.63 So stated, this line of argumentwill not do. Such a negative reason does not seem sufficient to ground thepositive picture of public reason which Ackerman associates with higherlaw-making.64 One could equally say that the chance of periodic review providesthe opportunity for even greater errors to be made in the future.

IV. POLITICAL CONSTITUTIONALISM

Most of the criticisms that have been levelled at Ackerman assume that anoverlapping consensus on certain constitutional principles can be justified apriori. However, the earlier analysis of Rawls raised two difficulties with thisassumption associated with the burdens of judgement. First, the values andtheories upon which principles of justice and rights can be based are oftenincommensurable. Consequently, they occasionally produce not only differentrankings of basic rights but also conceivably very diverse interpretations of whatjustice requires. Secondly, even within an agreed scheme of values, rights mayclash. This problem of non-compossibility, however, will become even moreintractable when a political community includes individuals holding incommen-surable understandings of the basis of rights and justice. There are limits to whatcan be justified in abstract terms when these sorts of conflicts are acknowledged.

(Fnote continued)L. Jaume, Il potere costituente in Francia dal 1789 a De Gaulle, in P. Pombeni, Potere costituentee riforme costituzionali (Bologna: Il Mulino, 1992); and M-J. Redor, De lE tat legal a lE tat de droit(Paris: Economica, Presses Universitaries dAix-Marseille, 1992).

62 B. Ackerman, The Future of Liberal Revolution (New Haven, Conn.: Yale University Press,1992).

63 Ackerman, We the People, pp. 1739, 2727 and 2904.64 For an insightful discussion of the motivational problems linked to higher law-making, and of

how it may be possible to give a more positive picture of public reason in constitutional moments,cf. R. Goodin, Motivating Political Morality (Oxford: Blackwell, 1992), pp. 10023.


To the extent that liberal constitutionalists recognize these difficulties theylook to processes of judicial review to resolve them. However, there are groundsfor believing that democracy offers both a better and a more legitimate systemfor their resolution. If no objective or universal standpoint can be identified apriori, then it will be necessary to construct common ground by encouragingeach person to adapt his or her viewpoint to accommodate as far as possible thoseof everyone else concerned. This process of mutual adaptation necessarilyentails a move from a purely self-regarding or partial stance to a moreother-regarding or impartial perspective, and the giving of reasons that can bepublically assessed. No arguments need be excluded a priori, although manywill be in practice. How far one will be required to shift ones position in anygiven direction will depend on the radicalness both of ones own views and ofthose whom one is addressing. Different rights and interests can in this way beweighed in a manner suited to the specific circumstances and commitments ofthose involved. Nevertheless, certain disagreements will prove intractable. Atthis point, we will need a procedure for breaking the deadlock and reaching adecision all can recognize as legitimate.65

Democracy has typically filled these two functions of promoting consensualdecision making and settling disputes. Indeed, constitutional courts themselvesemploy both democratic debate and majority voting when ruling on hard cases.However, judicial review is likely to possess less legitimacy than a politicalprocess. For it lacks the potential of the wider political forum of involving allrelevant groups in the decision so that they feel that some account has been takenof their views. In order to understand how democracy can achieve this result,however, we need a more differentiated appreciation of the nature of democraticdecision making than Ackermans.

Ackerman rightly notes that most members of modern societies are bestdefined as what he calls private citizens.66 In other words, they are neitherperfect privatists, a term he uses to denote individuals exclusively devoted totheir own personal concerns, nor are they public citizens, his label for personswilling to devote all their energies to the common good. Like Ackerman, wethink this mixture is a good thing. A society of atomistic egoists would resemblethe Hobbesian state of nature, whereas public citizenship in the sense describedby Ackerman can all too easily degenerate into the enforced identification withthe state characteristic of totalitarian regimes. However, Ackerman fails todevelop this thesis sufficiently.67 He endows the private citizen with aschizophrenic personality, acting as a perfect privatist in normal times and as

65 This account of the role of the democratic process in constructing a common point of view drawson B. Manin, On Legitimacy and Deliberation, Political Theory, 15 (1987), 33868; and D. Miller,Citizenship and Pluralism, Political Studies, 43 (1995), 43250.

66 Ackerman, We the People, pp. 23243. Ackerman himself emphasizes the conceptual natureof the link between private citizenship and dualist democracy: cf. pp. 297300.

67 For a similar criticism of Ackermans conception of private citizenship, wavering between anexpressive and instrumental account of it, cf. Galston and Galston, Reason, Consent.


a public citizen on those extraordinary occasions that define constitutionalpolitics. He believes that only exceptional circumstances, such as civil war orthe mass unemployment of the 1930s, are capable of mobilizing the citizenryand involving them in the protracted, well-focused, public-spirited, deep anddeliberative discussions that characterize higher law-making. In contrast, wewish to suggest that citizens are capable of switching between and, whenappropriate, even mixing, the normal economic and the constitutionaldeliberative form of politics most of the time.

Economic and deliberative democracy are best seen not as alternative andmutually exclusive models of democracy,68 but as offering complementarykinds of political reasoning. Economic democracy involves actors in a processof what Jon Elster has characterized as bargaining,69 whereby interests caneither be traded or aggregated to achieve maximal welfare. This approachclearly works well for what Albert Hirschman calls more-or-less conflicts,where it is possible to split the difference.70 Wage bargaining typically takesthis form. Deliberative democracy, in contrast, involves a form of discourse thatElster terms arguing.71 This style of politics is more appropriate toHirschsmans category of eitheror conflicts, involving rival principles.Ethnic, religious and linguistic quarrels often have this character. For withindeliberative settings, views can be transformed as opposed to simply combinedin some mechanical fashion.72 Arguing and bargaining are forms of politicaldiscourse present in both constitutional and normal politics, the only realdifference being the relative predominance of arguing in the first and bargainingin the second. Indeed, even this ideological picture of constitutional dialoguemay be partly undermined by the introduction of a third form of political debate,strategic arguing.73 Elster notes how self-interested agents often employimpartial arguments for instrumental reasons so as to exploit the efficaciousnessof impartiality as a strategy for persuasion and its congruence with social norms.The diffuse presence of strategic arguing in constitutional politics may implythat impartiality and authenticity are as scarce here as in normal politics. But

68 For two histories of democratic thought that tend to divide the tradition into economic anddeliberative models (or protective and developmental, to use their terms), see C. B. Macpherson, TheLife and Times of Liberal Democracy (Oxford: Oxford University Press, 1977); and D. Held, Modelsof Democracy (Cambridge: Polity Press, 1987).

69 Cf. Elster, Argomentare e negoziare, in particular chap. 5; cf. also Political Psychology(Cambridge: Cambridge University Press, 1993), pp. 2434.

70 Cf. A. O. Hirschman, Social Conflicts as Pillars of Democratic Market Society, PoliticalTheory, 22 (1994), 20318.

71 Elster, Argomentare e negoziare, chap. 4.72 Our view of deliberative democracy is looser than that employed by J. Habermas and others

influenced by his thought, who imbue it with strong metaphysical elements of a Kantian kind. Seein this regard Habermass critique of Rawls Reconciliation through the Public Use of Reason:Remarks on John Rawlss Political Liberalism, Journal of Philosophy, 92 (1995), 10931. Ourposition is closer to the accounts of Manin, On Legitimacy and Deliberation, and Miller,Citizenship and Pluralism.

73 Elster, Argomentare e negoziare, chap. 6.


Elster conjectures that strategic arguing illustrates the more general phenom-enon of the civilizing effect of hypocrisy. Politics, in other words, forces usto take on at least the semblance of accommodating others, a necessity that intime may lead to us actually doing so.

The balance between the economic and deliberative elements withindemocratic debate will depend on the issue and the circumstances. Whenprinciples are at stake, as in debates about abortion or capital punishment,discussion standardly takes a deliberative form and everyone involved makesa genuine effort to respect basic human interests. Even in the British Parliament a classical example of a monist democratic system MPs are given a freevote on such occasions.74 However, economic reasoning is entirely appropriatewhen one is looking simply for a decision that will maximize the generalwelfare. Of course, many, if not most, decisions involve elements of both sortsof reasoning. When deciding on whether to build a road, for example,consideration is standardly given not only to the interests of residents andpotential road users but also to more principled concerns, such as protection ofthe environment. Consequently, a democratic majority need not be seen asriding rough shod over the values and interests of others. It may be more accurateto regard it as the best means available of weighing them and bringing them intosome kind of balance through a combination of normal and constitutionalpolitics, economic and deliberative democracy.

If constitutional politics is not so different from normal politics, then theconstitutionalists belief that the enabling and facilitating of politics requires itslimitation proves overstated. We can think of constitutions as embodying certainprinciples that stand at the heart of all just societies, without necessarily placingthese basic rights and liberties within an extra-political framework on thegrounds that they are prior to, pre-conditions of, or need protection from politics.Instead, their identification, specification and implementation may all best beseen as products of political processes.

A constitution that takes this form consists of a complex of institutions andconventions that facilitate the various styles of political dialogue that weidentified earlier as appropriate to the management of particular sorts of socialand ideological conflict, rather than being a legal document that sets out specificjusticiable rights and norms. We remarked above how one school of thoughtregards the Federalists scheme of the American constitution as having adoptedjust such an approach in order to encourage deliberation and curb the excesses

74 For a discussion of whether Britain can be classified as either a monist or a dualist democracyin Ackermans sense, cf. I. Harden, The Constitution and Its Discontents, British Journal ofPolitical Science, 21 (1991), 489510 (in particular, pp. 5005). Worries about monist democracyin Britain are often the compound result of two different issues. One is the absolute sovereignty ofparliament, the other is the effect of the electoral system which transforms a relative electoral majorityinto an absolute parliamentary majority. The latter is not exclusive to monist democracies, asFerrajoli, for instance, argues in the Italian case (Dai diritti, p. 285).


of factionalism.75 They used a whole series of measures from the separationof powers, to the use of diverse voting systems for different representativebodies, through to the vertical and horizontal articulation of the principle ofsubsidiarity between the state and federal legislatures so as to employ politicsnot only to achieve the traditional constitutional goal of checking arbitrarypower, but also to secure informed, consensual and fair decision making.76

Within such a system, political justice designates a modus vivendi achievedthrough a balance of power between interlocking democratic institutions, ratherthan an overlapping consensus on certain core constitutional values that may beupheld by a court of putative moral experts.77 This scheme involves the creationof counter-balancing centres of decision making that devolve power up or downto the most appropriate level in order to ensure that different values and interestsget heard within the policy-making process. A distinction between normal andconstitutional politics remains appropriate not because they reflect differentqualities of decision making but in order to differentiate between those decisionsthat are tied up with the practices and procedures of the whole system and thosethat reflect special contexts or on-going concerns. The former would need to bethe preserve of a wider legislative body, such as a federal legislature, and mightrequire special democratic protection, such as approval by a higher than averagemajority, or even, in cases of radical reform, the calling of a constitutionalconvention or a referendum. All of these are political mechanisms, however, thataim to secure the identification of citizens and governments with the norms thatregulate their lives.

Unfortunately, the political dimension of constitutions has increasingly givenway to a reliance on judicial mechanisms. This juridification of the constitutionhas a number of drawbacks. As the Italian jurist Gustavo Zagrebelsky hasremarked,78 instead of enunciating a few general norms and principles,constitutions have steadily taken on the character of ordinary legislation withan equivalent body of detailed case law. The case for handing over to judgesthe necessary tasks of framing, interpreting, applying and balancing the basicprinciples of a just social order mirrors the four constitutional argumentsexamined in the first section, and suffers from parallel weaknesses. Suchlimitations on the self-determination of ordinary citizens imply the paradoxical

75 This republican interpretation has been urged especially by Sunstein in Partial Constitution;The Enduring Legacy of Republicanism, in Elkin and Soltan, eds, A New Constitutionalism; andPreferences and Politics, Philosophy and Public Affairs, 20 (1991), 334. In our view, however,he overemphasizes the need to exclude all forms of economic democracy.

76 For an understanding of constitutionalism which also emphasizes its more purposive andconstitutive function, cf. essays in Elkin and Soltan, eds, New Constitutionalism, in particularS. L. Elkin, Constitutionalism: Old and New, pp. 323.

77 See R. Bellamy, The Constitution of Europe: Rights or Democracy, in Bellamy, Bufacchi andCastiglione, eds, Democracy and Constitutional Culture in the Union of Europe, especiallypp. 16873, for a fuller account of these sort of proposals and their relation to the general approachadvocated here.

78 G. Zagrebelsky, Il diritto mite. Legge, diritti, giustizia (Torino: Einaudi, 1992), pp. 14754.


belief that ordinary citizens are not fully worthy of the liberties that theproponents of such schemes nevertheless ascribe to them. In this area, whereno uniquely right answer exists, the political process of bargaining and arguingforms a necessary aspect for generating an acceptable and authoritative solution.It ensures not only that decisions get made in the light of the full range ofinterests and values involved, but also promotes a certain identification with theresult on the part of the participants. To employ Harts terminology, democracycreates not just a legal system but a society with law, in which citizens lookupon [the legal systems] rules from the internal point of view as acceptedstandards of behaviour, and not merely as reliable predictions of what will befallthem, at the hands of officials, if they disobey.79

This approach does not entail the blurring of the roles of legislature andjudiciary, much less the elective dictatorship of executive power bothtraditional problems of systems, such as the British, which appear to emphasizedemocracy rather than liberal constitutionalism. Quite the contrary. Democracyis necessary for the legitimate formulation of law but is perfectly consistent withits application by an independent judiciary so as to avoid bias. Democracy andthe separation of legislative and judicial powers are both informed by the idealof impartiality, in the sense of ensuring all relevant interests and values areweighed and publicly debated so that decisions do not reflect purely self-servingpreferences and prejudices. For similar reasons, democracy demands thatexecutive actions avoid arbitrariness by being publicly accountable. Thus, theBritish tendency to equate democracy and the rule of law with the uncheckedpower of the executive testifies to an absence of democratic controls rather thanthe dangers of popular sovereignty. From our point of view, the remedy lies lessin a written constitution and bill of rights than in a more democratic system that,for example, revives the powers of local government, introduces an electedsecond chamber, reinforces the independence of MPs from party discipline andties them closer to the voters through electoral reform.

V. CONCLUSION

Constitutionalism and democracy lie in an ambivalent relationship to oneanother, with each providing both the foundation for and a threat to the other.We have argued that these tensions are exacerbated by the pluralism of modernsocieties, which make principled agreement hard to achieve. Watering down theterms of the liberal constitutional framework, in the manner of Rawlss PoliticalLiberalism, does not resolve the difficulty, since such a thin consensus onessentials remains too underdetermined to avoid the possibility of reasonableconflict stemming from differing conceptions of the good. Instead, we haveadvocated a republican form of political constitutionalism that draws ondemocratic processes. Rather than excluding potential divisive differences to

79 H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), pp. 113 and 197.


preserve a supposedly primordial consensus, this approach includes them andseeks to promote accords through the political management of conflict. Thisscheme fosters the identification with shared ends and respects our socialattachments in the manner desired by republican democrats, but still encouragesthe critical reflection and toleration rightly demanded by liberal constitutional-ists.80

80 We have attempted to apply the model of political constitutionalism to current debates in Europein R. Bellamy and D. Castiglione, The Communitarian Ghost in the Cosmopolitan Machine:Constitutionalism, Democracy and the Reconfiguration of Politics in the New Europe, in Bellamy,ed., Constitutionalism, Democracy and Sovereignty.

Documents

Constitutionalism and Democracy – Political Theory and the American-Richard Bellamy