Paradoxes of Constitutional Democracy

Drawing on the work of Frank Michelman and Jürgen Habermas, I outline two interconnected paradoxes of constitutional democracy. The paradox of the founding prevents a purely democratic constitution from being founded, because the procedures needed to secure its legitimacy cannot be spontaneously self-generated. It displays an infinite regression of procedures presupposing procedures. The paradox of dynamic indeterminacy heads off any attempt to resolve this problem through constitutional amendment. It shows that we cannot evaluate the legitimacy of a dynamically evolving constitution based on projections of its future development. To do so, we would need a stronger basis for making probabilistic judgments about the constitution's future path. After exploring the problems of using constitutional patriotism as such a basis, I outline an alternative built on the ideas of dynamic constitutionalism and reflexive citizenship. It shows how a dynamically evolving constitution can promote its own legitimacy from within, simultaneously resolving both paradoxes.     

National Security, Terrorism and Constitutional Balance

The 'war on terrorism' engages all the institutions of the state. A constitutional structure devoted to protection of liberty must place a paramount value on separation of powers, and a parliamentary democratic constitution should ensure that the ultimate locus of responsibility rests in the legislature, the only branch which has a direct connection to the citizens. However, in an ironic reversal of practice that prevailed before the coming of mass democracy, Parliament in the UK since the early twentieth century has largely accepted a supine role compared to the executive in matters of 'national security'. The judiciary, despite the enactment of legally enforceable human rights, has also manifestly failed to exercise its proper function of curbing abuses of state power. The result is an over-mighty executive, able to draw upon the deference of other branches of government in prosecuting the 'war on terrorism' on the battlefield and in the statute book, which has trampled on individual rights with virtually no check or counte-balance. Some principles by which the balance might be restored are suggested.     

Populism versus Democracy

This article provides a comparative conceptual analysis of the logic of populism and the logic of (constitutional) democracy. Populism is defined as a thin-centered ideology which advocates the sovereign rule of the people as a homogeneous body. The logic of this ideology is further developed in reference to the work of Carl Schmitt and is shown to generate all the characteristics typically ascribed to populism. The logic of democracy is analyzed on the basis of the work of Claude Lefort and defined as a regime in which the locus of power remains an empty place. This analysis replaces the widespread model of constitutional democracy as a paradoxical combination of a constitutional and a democratic pillar. This two-pillar model fails to appreciate the internal coherence and some of the main features of the (constitutional) democratic logic. Thereby, the two-pillar approach gives rise to an understanding of populism as continuous with the democratic promise of constitutional democracy. In contrast, our analysis explains populism as the closure of the empty place of democracy. This highlights the antagonistic discontinuity between the logic of populism and the logic of democracy.     

Homogeneity and Democracy in Austrian Federalism: The Constitutional Court's Ruling on Direct Democracy in Vorarlberg

This article seeks to analyze how homogeneity between the federationand the constituent Lander is provided by the Austrian federalConstitution in general. Focus is then put on a recent judgmentof the Austrian Constitutional Court, which has been one ofthe most outstanding cases of the Court's "homogeneity jurisdiction."The Court held a provision of a Land constitution to be in breachof the federal Constitution and therefore repealed it. The reasongiven was that the provision, which had obliged the Land parliamentto pass a law if this was demanded by a people's petition andsupported by the Land people in a referendum, endangered thesystem of representative democracy as provided by the federalConstitution. This narrow understanding of democratic homogeneityand the negligence of the principle of federalism are criticallyviewed in the article.     

Moral Leadership and Administrative Statesmanship: Safeguards of Democracy in a Constitutional Republic

The pursuit of the common good must be understood from the reality that governing is ugly. The ability to grapple with situations that are ambiguous requires administrators to be cognizant of action that might be suspect but necessary to accomplish the public interest. This often requires them to become active players. John Rohr postulates that the U.S. Supreme Court's standards of strict scrutiny is one approach that could be used to justify such action. Building on this line of thinking, the strict scrutiny test can be used as a guide to shape the constitutive character of administrative statesmanship while simultaneously restraining it. The ability to balance formative action and restraint provides a different dimension to an understanding of administrative statesmanship. Even though this process is not easy, it helps administrators refrain from going beyond the mark and enables them to act like statesmen in seemingly unresolvable situations.     

McCloskey versus McIntyre: Implications of Contested Elections in a Federal Democracy

The 1984 election in the Eighth Congressional District of Indianaproduced an unclear result. Election night totals gave the victoryto the Democratic incumbent Francis McCloskey. Subsequent recountsby state and local officials gave the victory to RepublicanRichard McIntyre. A further recount by the U.S. House of Representativesreturned the victory to McCloskey by a four-vote margin. Partisanshipwas important in all phases of deciding the outcome of the election,in part, because unclear rules and inconsistent counting procedurescreated ample opportunities for partisan interpretations ofelectoral rules. This contested election raised questions aboutthe legitimacy of the outcomes produced by various countingrules and about the problems of assuring majority rule wherecounting rules are inconsistent. The election also raised questionsabout the propriety of U.S. House intervention into local electoraladministration and about the roles of local, state, and federalofficials in deciding the outcome of a federal contested election.     

The Search for Citizenship in Bin Ali's Tunisia: Democracy versus Unity

Commitment to unity can hinder democracy, rendering the search for pluralism into an exercise in political singularity. I contest the thesis within the theory of democratic transition that national cohesion and ethnic homogeneity are essential preconditions for democracy. Tunisia is an ethnically homogeneous society, but seems to be unable to seize on the opportunity to transcend the threshold of democracy. The Tunisian example suggests that democracy (that is, an ethos of toleration of difference), should be rethought as one essential precondition for cohesion within democratising polities. The analysis unpacks how 'fragmented' politics works in the North African country. Politics becomes 'fragmented' when 'loyalty' to the state's discourse of 'citizenship' and 'identity', becomes the one distinguishing feature by which political community is defined and membership within it is determined. National unity is another word for political uniformity. Thus understood the state's imperative of unity and uniformity contradicts political pluralism and demotes rather than promotes democratic development.     

恐怖主义发展的新趋势

20世纪90年代以来,恐怖主义发展出现了一些新趋势案件迅速向世界各地扩散;文化方面的恐怖分子日趋五花八门;在经济领域制造恐怖者层出不穷;专以美国为敌者与日俱增;作案者纷纷化整为零;一些未成年人居然也成了恐怖分子;作案之后隐身遁形;施袭手段异常残酷;充当"击键杀手";使用生化武器;试图得到原子弹.     

When Does Deliberation Begin? Internal Reflection versus Public Discussion in Deliberative Democracy

Political deliberation involves both internal reflection and public discussion. The former might be far more important than implied by deliberative democrats' heavy emphasis on the discursive component. Analysis of the deliberations of a citizen's jury on an Australian environmental issue shows jurors' attitudes changing more in response to the 'information' phase of the jury proceedings, involving a large degree of 'deliberation within', than during the formal 'discussion' phase. Various ways can be imagined for evoking internal reflection of that sort, even in mass-political settings.