Constitutionalism: protecting democracy from itself

In the constitutionalist school of contemporary conventional liberal thought the idea that liberal individual rights have to be secured from the possibly unpredictable effects of democratic decisions is preserved in a more explicit form than in the Rawlsian tradition of semi-deliberative contractarian liberal thought. Instead of an actual or hypothetical contract, the constitutionalist tradition relies in its

8 Rawls adds in parenthesis: “but may legitimately”; thus making a distinction between “justice” and

“legitimacy” and confirming that they may contradict each other. Rawls himself sees justice as more important value than legitimacy, but acknowledges that a different position can be legitimate under some circumstances (Rawls 1993, 428).

justification to the Kantian idea of each individual person’s moral autonomy and integrity that cannot be compromised by any collectively cherished values or collectively supported decisions. The constitutionalist tradition follows the early liberal skepticism toward the democratic public; it unapologetically underlines the need to protect the individual rights from the eventual whims of the majority – that is the task of the constitution, juridically hard to change without creating a serious legitimacy crisis for the polity itself. A major driving force behind constitutionalist thought is the idea that democracy is structurally able to eliminate itself by enacting, in the course of due democratic procedures and while respecting the will of the majority, illiberal or undemocratic laws; or by electing leaders who are willing to replace the liberal democratic order with a totalitarian rule. Thus the explicit goal of constitutionalism is to constrain democracy, not just in order to safeguard the rights of individuals, but also to preserve democracy itself. A means to protect the democratic system from its own excesses is judicial review, the power of independent judges to block democratic decisions that are deemed unconstitutional.

In this chapter I analyze how the relationship between democratic participation and constitutional rights is envisioned in the work of a major proponent of this branch of constitutionalism, Ronald Dworkin.

In his defense of what he calls a “constitutional conception of democracy”, Dworkin touches the core question at stake in this study. Admitting that majoritarian democracy is not necessarily at odds with the idea that individuals have “important moral rights that the majority should respect”, he writes: “In some political communities, […] the majoritarian premise has been thought to entail that the community should defer to the majority’s view about what these individual rights are, and how they are best respected and endorsed” (Dworkin 2003, 241-242; my emphasis). Dworkin argues that that is the case in Great Britain, while in the US most people agree “that the majority should not always be the final judge of when its own power should be limited to protect individual rights”, and accept that “at least some of the Supreme Court’s decisions that overturned popular legislation, […]

were right” (Ibid. 242, my emphasis). Thus, he explicitly argues that rights should not be conceived of as objects of democratic deliberations and decisions rather than its external constraints. Instead, the ultimate authority on what rights we have is the Constitution of a given liberal democratic polity, and the authority to interpret and enforce rights is to be left to the courts, not to democratically elected bodies.

Dworkin does not find this position problematic from a democratic point of view; all disagreement within liberal thought on this matter appears to be just a question of interpretation of the meaning and value of democracy. He even claims to make this argument for the sake of democracy, on the premise that the most important value in democracy is equality. In Dworkin’s view, the legitimacy of constitutional democracy is based on the value of equality. Equality, he argues, is better protected by the imposition of equal individual moral rights than by following the will of the majority. Thus it is legitimate to restrict the majoritarian premise in order to preserve rights, if a majority’s decision would threaten the equality of status and rights of citizens. In Dworkin’s interpretation the “defining aim of democracy” is that “collective decisions be made by political institutions whose structure, composition, and practices treat all members of the community, as individuals, with equal concern and respect”; not that collective decisions always be those that a majority of citizens would favor (Dworkin 2003, 242). Based on this conception of democracy, the constitutional constraints on democratic governments are seen as an imposition of democratic conditions - that is of equal status for all citizens; not a restriction that compromises them.

If the task of the judicial review is to prevent majority-backed representatives from enacting discriminatory laws (Dworkin provides a clear-cut example of a law banning a group from public office on the basis of their race), Dworkin argues that instead of compromising democracy, it indeed has the power to enact it. This way, the view that majoritarian decisions ought to be restricted by undebatable equal moral and legal rights of all individuals does not place rights in conceptual opposition to democracy but views them as a tool for its enforcement (albeit in a limited mode; in order to defend it from itself). Dworkin’s positive vision of democracy pictures a community of “moral membership” that in contrast to overwhelmingly collectivist (communitarian) ideals of community is based on the mutually recognized dignified status of its each member. Political participation in such a polity that equally respects all its members is an essential right but not a means for self-fulfillment (Dworkin, like Constant and Berlin, regards the idea of political participation as a way of self-fulfillment as potentially dangerous): a moral member of a “genuine political community” must have a say in collective decisions, a stake in them (“an opportunity to make a difference”); and also independence from them. That condition requires “universal suffrage and effective elections and representation”, while it “does not demand that these be the only avenues for

collective decisions”; it “also insists on free speech and expression for all opinion, not just on formal political occasions, but in the informal life of the community as well”

(Dworkin 2003, 248). Thus, the non-negotiable democratic rights that Dworkin subscribes to are similar to those argued for by Mill; and like Rawls, he makes a distinction between the properly “political” sphere of representative institutions and the “informal life of the community”, where the bulk of public discussion is supposed to take place.

Dworkin takes issue with the proponents of what he calls the “communitarian”

account of democracy; those who believe that “special benefits […] follow, both for people as individuals and for the political society as a whole, when citizens are actively engaged in political activity in a certain spirit”, arguing that

“they rely on a dubious but rarely challenged assumption that public discussion […] is of better quality and engages more people in the deliberative way that the communitarians favor if these issues are finally decided by legislatures rather than by courts” (Dworkin 2003, 252).

He believes, contrary to the proponents of “communitarian” or deliberative democracy, that public debates, or the individual citizen’s chances of effectively participating in them, are not any worse in degree or quality when their goal is to influence judicial decisions than when they are directed at decisions made through legislative processes. True to the liberal tradition introduced above, Dworkin thus does not oppose public participation in open moral and political discussions in the

“civil society” (he even supports it), but he takes for granted that political and legislative decisions are taken in the “proper political” sphere of representative democratic institutions or courts; and he argues that democratic majoritarian decisions must be constitutionally limited with reference to individual moral rights, through judicial interference in the decisions of legislative bodies, if necessary in order to defend those rights. Those constraints, however, are not established in explicit defiance to democratic values, but in order to protect democracy from itself.

In contrast to the proponents of radical and deliberative models of democracy, Dworkin does not pay specific attention to the quality and inclusiveness of democratic procedures; “democracy” as a value is expressed in the norm of equality that in his account is best guarded by the enforcement of equal individual rights for all. “Majority rule” is discussed as representative democracy, and although Dworkin admits that there can be different interpretations of how to best institutionalize it, he does not even consider the possibility of wider public participation in “proper”

political decision making, certainly not in deciding on the questions of establishing, interpreting and enforcing rights. Regarding the relationship between democracy and rights, the constitutionalist account of democracy states clearly that constitutional rights should remain beyond the grasp of majoritarian decision making and that in case of conflict, disagreements over rights should be solved in courts, not by citizens or legislative bodies. Because rights, being equal, are assumed to fulfill the main premise of democracy – the premise of equality; the constitutional limits to democracy create no problem regarding democratic legitimacy. Dworkin admits that disagreement can occur about which laws or decisions can be deemed sufficiently “undemocratic” to qualify for rejection by judicial review in the name of democracy, but he argues that also those disagreements should be settled in courts, because the representative bodies may be fallible or biased. In Dworkin’s view, such arrangement cannot be objected as undemocratic, because it is undertaken for the sake of democracy in the first place. Judicial review of democratic decisions in order to guarantee their compatibility with constitutional rights is the guarantee of democratic legitimacy, because it defends the ultimate democratic ideal, the equality of all people before the law. In Dworkin’s view the legitimacy of a democratic regime is to be found in its egalitarian politics of rights rather than in the inclusiveness of its decision-making procedures. (Dworkin 2003, 242.)

Dworkin’s interpretation of “majoritarian” democracy is a rather Rousseauian (albeit not participatory) vision of democracy as “collective self-determination”, not as intersubjective action between individual citizens deliberating on common concerns. He perceives such conception of democracy as the greatest threat to individual rights, and thus to the ideal of equality and therefore to democracy itself:

“Self-determination is the most potent – and dangerous – political ideal of our time”

(Dworkin 2003, 246). Dworkin describes the idea of participatory democracy as a decision making order in which the citizens can identify with their governors – an idea vaguely reflected, albeit in positive terms, by Mouffe. In Dworkin’s view this identification often implies a concrete, romantic shared identity, like that of ethnicity, language, religion or race; while Mouffe talks about collective “political”

sovereignty. Curiously, they share the view that democracy implies an identification between the governors and the governed – albeit for Dworkin, that is a horrific vision and for Mouffe, a genuinely democratic one. It is also interesting to compare Dworkin’s equality-based defense of constitutional rights as constraints on democracy with Mouffe’s view that democracy, with its core value of equality, is in

tension with liberalism, whose core value is, in her view, freedom. This contradiction raises questions about the position of the concept of equality in liberal democratic theory: does the liberal politics of rights promote the value of equality and thus democracy (like Dworkin claims); or is it in contradiction with it, as Mouffe argues?

(Mouffe 2000, 2-5.)