Constitutionalism and Democracy

In light of the preceding reflections, I agree with the view that constitutionalism “includes the doctrine of official accountability to the people or to its legitimate representatives within the framework of fundamental law for better securing citizens’ rights.

Moreover, the democratic ideals that the concept was supposed to represent in each case did not extend to all citizens in practice. Indeed, the history of citizens’ rights in each case can be seen as following a different trajectory, according to a different contextual meaning for each society. On the one hand, constitutional ideals permitted the persistence of slavery and its aftermath for nearly two centuries after the bill of rights was adopted in the United States, and the exclusion of women and the poor classes from political participation in all three countries until the early twentieth century. Yet, each of the three countries negotiated its own way out of those undemocratic limitations, according to its own internal context and sociopolitical dynamics. In the final analysis, however, there was nothing predestined or irreversible about these developments in each case, only specific outcomes of political struggles, a civil war in the case of the United States, and social transformation over time in all three countries.

It is therefore important to affirm the need to invest in democracy and protection of rights, while realizing that the association between constitutionalism and democracy is part of a progressive evolution in each specific context. It is from this perspective that I will now approach the relationship between the two. While specific strategies should be developed and implemented to promote and secure the relationship, one should neither despair if the desired outcome is not immediately realized, even after several attempts, nor become complacent when the relationship appears to be established and secured.

Although the functioning of both presume the same basis or idea of political authority, namely, that governance is legitimized by the will of the people, “the relationship between constitutionalism and democracy, that is, between limited government and self-government, remains one of the most important but least understood subjects in political theory” (Holmes 1995: 299). Indeed, there is an obvious tension between constitutional limitations of the powers of government, on the one hand, and the implementation of the will of the majority of the population, on the other. This tension or paradox was apparent in the American and French constitutional experiences, reviewed earlier. “During the revolutions, the ‘people’ appeared as direct participants on the political stage, giving tangible expression to the principle of democracy. A constitution, on the other hand, acts as an intermediary between the people and the exercise of power; all political authority derives from it, and as a fundamental law it expressly limits the power of the popularly elected assembly” (Preuss 1995: 34).

Murphy attempts to mediate this tension by emphasizing human dignity as the unifying principle of both democracy and constitutionalism, the basis of both principles. In his view, however, democratic theory adopts a more positive view of human nature in the belief that people will make rational decisions that are genuinely in their best interest, and “will not tyrannize themselves” (Murphy 1993: 4).

In contrast, Murphy suggests, constitutionalism adopts a more skeptical view of human nature, and does not accept that such organic checks and balances are sufficient to prevent the abuses of power. Constitutionalists “want institutional restraints on substantive matters to prevent lapses into an authoritarian or even totalitarian system cloaked with populist trappings” (1993: 6; emphasis added). From the constitutionalist perspective, legitimacy for policy is guaranteed not just by faith in the decision-makers’ credibility but “also on substantive criteria” (6). Thus, Murphy maintains that both democracy and constitutionalism “accept the centrality of human dignity; they differ on how best to protect that value” (8). He argues that both need each other and that many of the societies commonly described as having democratic systems, such as Australia, India, and the United States, are more appropriately termed constitutional democracies. In Murphy’s view, constitutionalism is consistent with the fundamental democratic principle, except that it requires a pragmatic check on undesirable consequences that may occur when the “people” grant a government power to act in their name. Constitutionalism, from this point of view, is a set of measures and safeguards to ensure governance in accord with the spirit of democracy.

Holmes, on the other hand, challenges the idea of any intrinsic contradiction between constitutionalism and democracy as “empirically unconfirmed and theoretically inadequate” (Holmes 1995: 300).

It may seem that constitutionalism is an inherently undemocratic means of constraining the will of the people, but if one understands that these checks on the people’s proxies as being authorized by democracy itself, on a broader understanding of the term, then there is no inherent conflict. Constitutional safeguards against the abuse of vested power can be understood in terms of “plural agency” (Holmes 1995: 300), authorized by the people themselves. In other words, “constitutionalism attempts to solve the principal-agent problem not only by institutionalizing periodic elections but also by appointing multiple agents who can monitor each other” (301). This is what the separation of powers is supposed to achieve in the American constitutional system. The common sense of democratic citizens, it is said, recognizes “the need for a variety of indirect techniques for enforcing their will on public officials.”

Holmes also argues that the entrenchment of rights “beyond the reach of ordinary democratic processes” (1995: 303) is not antidemocratic.

For our purposes here, one may wonder about the best participatory framework for identifying and securing the basis for such essential democratic rights. If these rights are to be enshrined constitutionally as non-negotiable and immune from fundamental alteration by any government, the practical question is how can that be achieved in practice? More broadly speaking, the success of constitutionalism apparently lies in its grounding in some idea, phenomenon, or practice that already possesses national or societal legitimacy. In other words, for constitutionalism to become a self-perpetuating phenomenon by developing a history of success that is evident proof of its value, it must be fundamentally connected to some such aspect of social or cultural existence whose legitimacy has already been assured. For the purposes of constitutionalism in present African societies, as discussed throughout this book, the question is what sources of legitimacy can sustain constitutionalism until it becomes culturally or socially legitimate in and of itself?