Constitutional Democracy as a Way to Overcome the Risks of Majoritarian Democracy

Article XVI of the French Declaration of the Rights of Man and of the Citizen of 1789, the first modern definition of Constitution, provides that “A society in which the observance of the law is not assured, nor the separation of powers defined, has no Constitution at all”.

On the other hand, Emmanuel Sieyes was the first to establish in his book What Is the Third Estate? (Qu’est-ce que le tiers-etat? - 1791) that are two distinct pow­ers: in the first place, a constituent power that would be owned by the people directly or the representatives of them in an Assembly whose ultimate aim is to make a constitution, and the constituted powers (exercised by those bodies such as the executive, legislative and judicial branch), that are settled and limited by the Constitution itself.

Based on this logic, constituted powers lack the power to change the basic ele­ments proposed by the constituent power, because the constituted powers are regu­lated by the Constitution and are limited by it. As the French have explained this is a “constituted constitutional power” limited to the structural elements of the Constitution itself. On this point, Sieyes indicates in his Raisonee Exposition before the Constitution Committee of the National Assembly of July 20, 1789 that, “The powers within the public property are subject to all applicable laws, rules and forms that are owners are altering. And as they were unable to build themselves, they can­not change its Constitution”.

This democratic concept of a Constitution that states that the Constitution is the supreme law that limits the powers and protects the fundamental rights is fully in effect and their use is increasingly repeated.

Nevertheless, the idea of democratic constitution has represented an apparently irresolvable dilemma, that I will call “the democracy paradox” that is expresses thus: because democracy is based on the “majority rule”, the rationality of the law will depends on the power of the decision of the greatest number. This paradox is evidenced in a greater magnitude when it comes to the amendment of the Constitution, because it shows the tension between the democratic principle formu­lated by Rousseau, and the principle of supremacy of the Constitution established by authors such as Montesquieu and Bryce (De Vega 1985).

However, Rousseau’s idea that majoritarian democracy could establish unlim­ited constitutional change and that it was legibus solutus regarding the Constitution was changed by Rousseau himself in his text “ Considerations on the Government of Poland” (1771), where he realized that in most cases the exercise of direct representative democracy is not possible, and for this reason should be limited to the Constitution drafted by the constituents that directly represents the popular will.

On the other hand, the majoritarian conception of democracy proposed by Rousseau contained another problem evidenced by Tocqueville in his “Democracy in America”, which is that a “tyranny of the majority over the minority” can occur, and this could jeopardize the principles of pluralism, equality and freedom, when the decision of the majority is arbitrary or unfair.

Moreover the democracy of the majority is in crisis when it is evident that the largest number can not only go against the rights of minorities, but also eliminate the very foundations that enable democracy, turning it into a suicide power.

I can be argued, furthermore, as highlighted by Norberto Bobbio, that majority rule has no rational justification, “... as a quantitative criterion trusts a choice or a decision that is essentially qualitative’’ (Bobbio 2002, 255), and that even if it could be justified with axiological and teleological arguments it would be in trouble to overcome the “paradox of self-destruction” described above.

The arguments for democracy of majorities are divided into pragmatic and eval­uative arguments following the division proposed by Weber. On the basis of evalu­ative arguments one would say that the majority rule is justified because it can, better than any other system of decision, fulfil some fundamental values such as freedom, equality and pluralism, and on the basis of pragmatic arguments it is said that this system is intended to reach a joint decision relatively quickly among people who have different points of views, so democracy of majorities is the best way to form a collective will within an organized social group.

However, as mentioned, the democratic system based on majority rule would have two fundamental problems: (i) the paradox of self-destruction, and (ii) the problem of the protection of minority rights that could be illegitimately restricted by some decisions of the majority. These risks have led to theories of the limits of democracy or to rules stating that there are a number of constitutive elements in a democracy which cannot be eliminated by majority decisions.

Although Kelsen established that there is a modus vivendi between the majority and the minority that allows a “free confrontation between majority and minority” to create “...an atmosphere favourable to compromise between the two” (Kelsen 2008), the coexistence of convenience ignores the necessity of some commitments to refer to the same democratic game and to defend the rights of the minority.

The dilemma of self-destruction and the possibility of elimination of the rights of the minority by the majority rule was raised by Radbruch in his text “Relativism and law”, which holds that there comes a moment where one cannot accept or tolerate relativism, and where decisions are made intending to end relativism itself. This is the case when through democratic decisions based on the majority rule it is intended to eliminate the rights of freedom, equality and pluralism that legitimize this system of government.

Therefore, from the theoretical point of view a series of limitations or restrictions on the use of majority rule has started to emerge as the system that best explains democracy. Thus the idea of a democracy has to be different from the idea of democracy of majority, in order to establish rules or minimum standards that limit arbitrary democracy. This order raises the idea of a “Constitutional Democracy” that establishes limits that could not be modified by majoritarian democracy estab­lished in parliament and in any case retains both the rights of the minority and the requirements of the democratic system itself, through mechanisms such as judicial review, constitutional actions, constitutional rigidity and intangibility clauses.

This understanding of democracy holds that the supremacy of the Constitution is the best way to limit the power of majoritarian democracy, an idea reinforced after the Second World War in Europe and after the end of dictatorship periods and auto­cratic systems in the late 1970s, 1980s and 1990s of the last century in countries as Portugal, Spain, Argentina, Brazil and Uruguay.

Nevertheless, when it comes to constitutional reforms, there remains the dilemma of what should prevail if the constitutional provision in its basic structure or the decisions made in a democracy come into conflict, presenting the tension between constitutional democracy and democracy of majorities. This tension has resulted in two clearly defined positions: those who believe that a court should protect the prin­ciple of constitutional supremacy to avoid the dangers and risks of democratic majorities and those who consider that democratic decisions under majority rule should prevail over the Constitution.

Among the first would be those who argue that democratic decisions cannot eliminate certain aspects considered as central to the Constitution and to the separa­tion of powers, protection of rights, alternation of power, authority and judicial review, which could be thought of as comprised in the idea of supremacy the Constitution, among other aspects inherent in the idea of constitutionalism. This thesis was developed, within the US doctrine, by William L. Marbury in 1919 in an article entitled “The Limitations upon the Amending Power” where he said, “the power to amend the Constitution was not intended to include the power to destroy it” (Marbury 1920, 225).

This same position was held by Justice Robert Jackson in the United States in the case of the “Salute to the Flag” in 1943 stating that these fundamental rights would be not possible to amend, who and stated in the ruling that,

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy to place them beyond the reach of majorities and officials establish them as legal principles that would be applied by the courts. The right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other funda­mental rights itself should not have a vote: do not depend on the outcome of elections^[CCLXXXIV]

However, other authors consider that there should be no fears or limits on deci­sions taken democratically, and that therefore judges should not have the power to make any judicial review of the decisions taken within the rule of majority. Such

criticism is based mainly on two aspects: (i) counter-majoritarian criticism, and secondly (ii) criticism regarding the decision-making of plural corporations as the tribunals and constitutional courts that are implemented by majority rule.

The counter majoritarian critic was first raised by Alexander Bickel in his 1962 text “The Least dangerous branch”, where it was stated that judicial review in the United States was creating a “government of judges” that can be inconvenient in relation to the possibility that these decisions are more regressive in recognizing rights that the decisions made in the democratically elected parliaments.

The second critique related with the use of rule of the majority by Tribunals and Constitutional Courts, is exposed by Jeremy Waldron in his book “Law and Disagreement” (1999), which emphasizes that the decisions by judges and Courts are taken in most cases using the majority rule, establishing the paradox that the decision of what is amendable and what not is at the end based not in the rationality but in numeric rationality. Kenneth Arrow explains the problems of such method: “neither majority-decision nor any other method of aggregation can guarantee that a coherent group preference can be constructed rationally out of a variety of coher­ent individual preferences” (Waldron 1999, 89).

From the tension between majoritarian democracy and constitutional democracy arises the idea of building a new concept of Constitution that it will be understood “as the decision of the majority, but without the restriction of the rights of the minority and the elements that makes possible democracy itself”.

Against this conception of democracy there emerges the thesis of the “substan­tive” or “material” limits to constitutional change, which accepts the power to amend the Constitution while not admitting the power to replace it. This thesis is explained by authors such as Jon Elster and Stephen Holmes as a kind of pre­commitment restraint that may be associated with the passage of “Ulysses and the sirens” in Homer’s Odyssey, where Ulysses instructs its subordinates to tie him to the mast and fill their ears with wax to avoid falling into the siren’s songs that could lead to the sinking of the expedition. According to this metaphor, the Constitution would be the mast where Ulysses is tied to prevent him from falling into the charms of the songs of the sirens of democracy of majorities that could lead to their own destruction.

In conclusion, the “substitution doctrine” in Colombia or the “Basic Structure” thesis in India would be a way of protecting constitutional democracy against the risks of majoritarian democracy in order to protect the basic elements of democracy itself, sucha as the principles of freedom, equality, pluralism, alternation of power, the principle of constitutional supremacy, and the fundamental rights needed to secure the rights of the minority groups.

The following section will discuss how the doctrine of substitution is imple­mented in Colombia and what were the main problems of the introduction of this thesis in the development of the judicial review, especially with regards to the dif­ficulty to distinguish between substitution and amendment, the indeterminacy of the notion of “irreplaceable elements”, and the Court’s power to interpret these ele­ments. Finally we face the question of whether the doctrine of substitution in Colombia is a good method to protect constitutional democracy against majoritarian democracy.

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