Democracy and Constitutionalism
At the very beginning of his book Brennan and Democracy, Frank Michelman (1999, 04) asserts that American constitutional theory is eternally hounded (,..)by a search of harmony between (...) two clashing commitments: one the ideal of government as constrained by the law (“constitutionalism ”), the other to the ideal of government by act of the people (“democracy ”).
This is also true for most of constitutional theory and constitutional practices after the terrible experiences of totalitarianism and authoritarianism[288] and the predominance of constitutional democratic States in western societies from the second half of the last century on.If the settlement of constitutional democracies in most western countries has been a significant achievement in the last 60 years yet the conciliation between constitutionalism and democracy has still been very problematic. Democracy as the sovereign government of the people inevitably implies a tension with constitutionalism as the rule of law. That is, people ruling themselves or the government by the people - majority government - is limited by the Constitution. As Michelman says (1999, 06), “Constitutionalism” appears to mean something like this: The containment of popular political decision-making by a basic law, the Constitution - a “law of lawmaking,” Considering that the Constitution for and in democracies is the outcome of a popular constituent power and considering that it is the basic law, then it must be untouchable by the majoritarian politics it means to contain (Michelman 1999, 06). This does not mean (and it is not desirable at all) that the constitution shields itself in face of democratic politics but it means that democracy and constitutionalism are, somehow, co-originary. Michelman folds these two principles from the standpoint of that which can be politically decidable.
And what is politically decidable? Can the people themselves define it? Yes and no!Of course the people must decide for themselves those politically decidable issues on moral, political and cultural grounds. But, on the other hand, some decisions taken by the people in constituting their community have to lay beyond the reach of majority, such as the limits of governmental powers, the commitments with human dignity, self-determination, liberty and equality etc.
This paradox between constitutionalism and democracy is somehow unavoidable and necessary and it brings some institutional difficulties. Yet it must be faced if one intends to radicalize the Constitution.
Constitutionalism means to restraint political power by the law. This notion becomes stronger as far as there is a Constitution, especially a written Constitution, with binding norms/rules to which all other norms/rules are subjected. However, none of this would be enough without a democratic counterpart. It is democracy that does not let constitutionalism to be paralyzed in its achievements. On the contrary, democracy tensions constitutionalism all the time and it renews it by means of the enforcement of the Constitution. As Post and Siegel (2007, 374) proposes democratic constitutionalism is a model to analyze the understandings and practices by which constitutional rights have historically been established in the context of cultural controversy. They also take disagreemeni as a normal condition to the development of constitutional law. As matter of fact any attempt to avoid disagreement threats democracy and constitutionalism or rather, politics and the law.
The Constitution is between the political act that established it and the legal act that enforces it. This tension is rather productive than problematic. The challenge for contemporary constitutional theory is then to conciliate a reasonably stable Constitution that assure full protection to people’s rights at the same time it restrains power with an intuition in favor of self-government (Gargarella 1996, 128). Besides these aspects it has to take into account the political action to be mediated by the Constitution.
It is worthy to recall Post and Siegel’s (2007, 376) considerations about backlash. According to them, it expresses the desire of a free people to influence the content of their Constitution, yet backlash also threatens the independence of law. Backlash is where the integrity of the rule of law clashes with the need of our constitutional order for democratic legitimacy. In this sense, people have to act politically expressing their own understanding of the Constitution, which means a certain protagonism by them in enforcing the Constitution.
11.6