This essay aims to briefly discuss the idea that - though the theory of Constitutionalism qualifies and limits democracy, it is not incompatible with democracy, as a Constitution derives its authority from the People who are sovereign. This essay discusses this idea in the light of democratic theory and in relation to the constitutional development of the United States of America. In doing so, this essay briefly discusses the concepts of ‘Democracy’ and ‘Constitutionalism’ and highlights the distinction between ‘Sovereign’ and ‘Government’. This essay also points out that constitutionalism or a constitution serves democratic interests insofar as it contains the right principles and is drafted through a ‘proper’ process.
Introduction
Constitutional government, originated as a defence of the individual's right to life and property, and to freedom of religion and speech. In order to secure these rights, constitutional architects emphasized checks on the power of each branch of government. However, the relationship between democracy and modern constitutionalism is possessed of a degree of complexity that is often misunderstood, I begin by suggesting, that it is perhaps best approached and understood through setting the substructure by understanding the conceptions of ‘Democracy’ and ‘constitutionalism’. Democracy The concept of democracy is generally understood to mean the ‘rule by the people’ or ‘self-rule’. But when we speak of self-rule in the context of discussing democracy, we are typically referring, not to radical libertarianism or anarchy where no one or group is recognized as sovereign over us as individuals, but to rule by contemporary majorities. More precisely, we are referring to contemporary majorities within a defined geographical territory. This is a purely procedural conception of democracy “democracy as majority rule” . Beyond this fairly uncontroversial basic definition, however, different conceptions of democracy are found. There are versions on offer as competitors with majority rule. Ronald Dworkin’s conception of democracy is one, a conception in which the moral right to equal concern and complement and constrain majoritarian policy preferences. And “procedural” conceptions of John Ely are among others. However, we will stick to the simple conception of “self-rule” or “rule by the people” in this discussion. Furthermore, it is worth noting that even the most ardent contemporary majorities rule democrat will place some limits on majority rule; limits that might be considered “constitutional.” For example, no one advocates complete universal suffrage, so that everyone -- children, convicts, mentally unsound included would be entitled to vote. Constitutionalism Constitutionalism is the idea, that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations . In some minimal sense of the term, a constitution consists of a set of norms (rules, principles or values) creating, structuring, and possibly defining the limits of, government power or authority . Understood in this way, anything recognizable as a state must have some acknowledged means of constituting and specifying the limits placed upon the three basic forms of government power; legislative power, executive power and judicial power. When scholars talk of constitutionalism, they normally mean not only that there are norms creating legislative, executive and judicial powers, but that these norms impose significant limits on those powers. Often these limitations are in the form of civil rights against government, rights to things like free expression, association, equality and due process of law. But constitutional limits come in a variety of forms. They can concern such things as the scope of authority; the mechanisms used in exercising the relevant power; and of course civil rights . Constitutionalism in this …show more content…
We could divert our energies to the think about the relationship between citizens and constitutions, to the means of realizing democracy at the level of the fundamental laws, instead of focusing our attention on who should have the final word about the meaning of a constitutional provision. This, of course, does raise the stakes, constitutional theorists are no longer supposed to decide which of two more or less predictive institutions should enjoy more power (the judiciary or the legislature), but obliged to test their confidence and prejudices about ordinary citizens. In other words, the choice becomes that of trusting the political creativity of the citizens and proposing mechanisms to increase popular participation in constitutional
Introduction
Constitutional government, originated as a defence of the individual's right to life and property, and to freedom of religion and speech. In order to secure these rights, constitutional architects emphasized checks on the power of each branch of government. However, the relationship between democracy and modern constitutionalism is possessed of a degree of complexity that is often misunderstood, I begin by suggesting, that it is perhaps best approached and understood through setting the substructure by understanding the conceptions of ‘Democracy’ and ‘constitutionalism’. Democracy The concept of democracy is generally understood to mean the ‘rule by the people’ or ‘self-rule’. But when we speak of self-rule in the context of discussing democracy, we are typically referring, not to radical libertarianism or anarchy where no one or group is recognized as sovereign over us as individuals, but to rule by contemporary majorities. More precisely, we are referring to contemporary majorities within a defined geographical territory. This is a purely procedural conception of democracy “democracy as majority rule” . Beyond this fairly uncontroversial basic definition, however, different conceptions of democracy are found. There are versions on offer as competitors with majority rule. Ronald Dworkin’s conception of democracy is one, a conception in which the moral right to equal concern and complement and constrain majoritarian policy preferences. And “procedural” conceptions of John Ely are among others. However, we will stick to the simple conception of “self-rule” or “rule by the people” in this discussion. Furthermore, it is worth noting that even the most ardent contemporary majorities rule democrat will place some limits on majority rule; limits that might be considered “constitutional.” For example, no one advocates complete universal suffrage, so that everyone -- children, convicts, mentally unsound included would be entitled to vote. Constitutionalism Constitutionalism is the idea, that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations . In some minimal sense of the term, a constitution consists of a set of norms (rules, principles or values) creating, structuring, and possibly defining the limits of, government power or authority . Understood in this way, anything recognizable as a state must have some acknowledged means of constituting and specifying the limits placed upon the three basic forms of government power; legislative power, executive power and judicial power. When scholars talk of constitutionalism, they normally mean not only that there are norms creating legislative, executive and judicial powers, but that these norms impose significant limits on those powers. Often these limitations are in the form of civil rights against government, rights to things like free expression, association, equality and due process of law. But constitutional limits come in a variety of forms. They can concern such things as the scope of authority; the mechanisms used in exercising the relevant power; and of course civil rights . Constitutionalism in this …show more content…
We could divert our energies to the think about the relationship between citizens and constitutions, to the means of realizing democracy at the level of the fundamental laws, instead of focusing our attention on who should have the final word about the meaning of a constitutional provision. This, of course, does raise the stakes, constitutional theorists are no longer supposed to decide which of two more or less predictive institutions should enjoy more power (the judiciary or the legislature), but obliged to test their confidence and prejudices about ordinary citizens. In other words, the choice becomes that of trusting the political creativity of the citizens and proposing mechanisms to increase popular participation in constitutional