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.     

The Kantian Liberal Peace (Revisited)

Democratic peace studies have traditionally identified Kantian "republicanism" with procedural democracy and largely ignored liberalism and constitutionalism, which are even more fundamental for Kant's reasoning behind the liberal peace. A closer look into his major political works reveals that peaceful relations are expected from states with the protection of individual freedoms (liberalism), the rule of law and legal equality (constitutionalism), and representative government (democracy). Only when all three constitutive elements are jointly considered can we uncover the multifaceted nature of Kant's approach to the domestic sources of international peace. In this way, we not only find that monadic and dyadic expectations are consistent with Kant's theory, but also that both normative and interest-based explanations for international peace can equally draw on Kant as their theoretical precursor. We further demonstrate that it is plausible to infer that the Kantian legacy is related to civil peace as well. The propositions we derive from our theoretical reexamination of the Kantian legacy are strongly supported in our quantitative empirical test. Moreover, constitutional liberalism, rather than democracy, shows to be both more central for Kant's theory and empirically more robustly related to international as well as domestic peace.     

Experimentalism in the EU: Common ground and persistent differences

Our central claim in this rejoinder is that experimentalist forms of organization in making regulatory rules, organizing social services, and articulating constitutional norms arise and diffuse as the problem that the actors and the state face shifts from ignorance to uncertainty. We argue that this has consequences for forms of accountability and for the conception and organization of democracy and constitutionalism. The EU, founded by diverse states in a period of continuing uncertainty, intensified by growing interdependence, proves to be a natural laboratory for observing urgent efforts to adjust to this new situation, and the symposium focuses on developments there. The symposium has brought us to see that there is more common ground in these debates than prior exchanges may have suggested. We therefore emphasize convergence on large points, while underscoring and, we hope, clarifying persistent differences, with the aim of encouraging the joint exploration of them already underway, in part explicitly, in part implicitly.     

Canada: The Supreme Court Sets Rules for the Secession of Quebec

The Supreme Court of Canada ruled in 1998 that neither the Canadianconstitution nor international law allows Quebec to secede fromCanada unilaterally. Secession would require amending the constitution.However, if a clear majority of Quebecers unambiguously optsfor secession, the federal government and the other provinceswould have a constitutional duty to negotiate. This is an obligationthat the court declared to be implicit in four principles that"inform and sustain the constitutional text"—federalism,democracy, constitutionalism and the rule of law, and respectfor minorities. The same set of principles would govern thenegotiations themselves. Accordingly, Quebec could not dictatethe terms of secession, and one cannot assume that agreementwould be reached. If negotiations fail, and Quebec declaresindependence unilaterally, the international community wouldhave to decide whether Quebec's action was legitimate.     

Conflicts of Values and Political Forgiveness

Citizens have a right to be governed by officials with an acute awareness of the conflicts between the constitutional values of liberal democracy. Such an awareness is an integral part of a public official's integrity. That is why citizens should have a say in deciding whether to remove from office an official with such integrity. In this article, this type of conflict between constitutional values is translated into the terms of an individual official's decision making with the help of moral theory. This yields two paradoxes: one focusing on the decision maker and the other on the object of his or her decisions: the citizen. These paradoxes lead to the following questions: If running a liberal democratic constitution essentially involves moral complexity, should we not try to have it run by officials with a sensitivity to that complexity? And if officials with that sensitivity are bound to commit moral wrongs because of complexity, do not we owe them something like political forgiveness? The paradoxes are used to formulate conditions for political forgiveness.     

Beyond dichotomous explanations: Explaining constitutional control of the executive with fuzzy-sets

Abstract. What are the main variations in the constitutional control of the executive in 45 parliamentary democracies and how can these differences be accounted for? Four competing hypotheses, based on dichotomies, explain the degree of this control by means of contrasting institutional settings: consensus democracy versus majoritarian democracy, presidentialism versus parliamentarism, thick versus thin constitutionalism and established versus new democracies. These hypotheses are tested with the help of fuzzy-sets that allow for varying degrees of membership that go beyond the presence/absence suggested by these dichotomies. The necessary and sufficient conditions for constitutional control are specified with the help of this new methodology. The fuzzy-set analysis shows that the degree of constitutional control can be explained solely by a specific combination of institutional conditions stemming from the four dichotomies, and not by one single dimension. This constellation remains hidden for the traditional correlational techniques like regression. Hence, the fuzzy-set logic presents a promising new tool for comparativists that can be used to reveal causalities.     

Montesquieu on Federalism and Anglo-Gothic Constitutionalism

The common perception that Montesquieu is not a major theoristof federalism is due both to the peripheral nature of his accountof confederate republics and his praise of the unitary BritishConstitution in the Spirit of the Laws. This study challengesthis view by arguing that, despite his endorsement of the separationof powers, Montesquieu had serious reservations about England'shighly centralized system of parliamentary sovereignty. Moreover,his most significant reflections on federalism were not containedin his brief treatment of confederate republics, but ratherin his lengthy consideration of Gothic constitutionalism. Iconclude that Montesquieu's complex constitutional theory involvestwo distinct dimensions including both the separation of powersexemplified in England and the federal principles in the decentralizedGothic system of medieval France.     

From Majoritarian Democracy to Vertical Separation of Powers: Sweden and the European Union

The key problem in constitutional politics in the established democracies may be said to pertain to finding the right balance between majoritarian democracy, constitutionalism and effective decision making. From that perspective this essay examines the Swedish polity before and after the accession to the European Union in 1995. From 1917 onwards majoritarian democracy and parliamentarism were the praxis of the Swedish polity. But this mode of goverment was not written into the 1809 Instrument of Government, which was characterised by the separation of powers between the king and the parliament. It was first in the new Instrument of Government, adopted in 1973–74, that the praxis of majoritarian democracy and parliamentarism was codified. But in the 1990s a new form of dualism was introduced into the Swedish polity as a result of the country's accession to the European Union. On the one hand, there is an Instrument of Government characterised by the principle of majoritarian democratic rule. On the other, accession to the EU involves a vertical separation of powers on a major scale. Two conflicting fundamental elements, majoritarian democracy and vertical separation of powers, are currently incorporated in the Swedish polity.     

Constitutionalism and experimentalist governance

This comment explores how experimentalist governance is connected to wider constitutional questions and makes two claims. First, there are good reasons to believe that experimentalist governance can only flourish in a world where the precepts of liberal democratic constitutionalism have been widely accepted and institutionalized. Experimentalist governance is part and parcel of the world of liberal democratic constitutionalism. Second, it is not only governance in Europe that can be described in experimentalist terms. The concept is also useful to describe the dynamics of European constitutionalism.     

Garcia: Of Federalism and Constitutional Values

In Garcia v. San Antonio Metropolitan Transit Authority (1985),a majority of the U.S. Supreme Court's justices did violenceto the principles of the U.S. Constitution by leaving the statesto take their Tenth Amendment complaints to the Congress. Inabdicating their proper constitutional role, the majority ofjustices ignored history, political realities, and constitutionalprinciple. The Constitution's institutional arrangements, ofwhich federalism is a key component, are an intrinsic part ofthe constitutional scheme by which government power is limitedand individual rights are protected.     

The calculus of piratical consent: the myth of the myth of social contract

Is a genuine social contract mythical? I argue that pirates created genuine social contracts that established a system of constitutional democracy based on the same decision-making calculus and with the same effects that Buchanan and Tullock’s contractarian theory of government describes in The Calculus of Consent. Pirates’ constitutional democracy is the “holy grail” of social contract theory. It demonstrates that the contractarian basis of constitutional democracy is more than a mere analytic device or hypothetical explanation of how such a government could emerge. In pirates’ case, Buchanan and Tullock’s social contract theory describes how constitutional democracy actually did emerge.     

Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives

Scholars, the courts, and the public have been ambivalent about prerogative, the power of presidents to take extraordinary actions without explicit legal authorization in emergencies, because it seems to defy core principles of liberal constitutionalism. This article examines the relation between prerogative and liberal constitutionalism by comparing the approaches of two Founders with different conceptions of executive power, Jefferson and Hamilton. Although they both endorsed a Lockean conception of prerogative that makes it possible to secure vital substantive ends that might be imperiled by strict adherence to ordinary legal forms in an emergency, they disagreed over the constitutionality of prerogative. Whereas Hamilton located the authority for prerogative within the implied powers of the Constitution, Jefferson expected presidents to admit wrongdoing and seek post-hoc approval from the public, a difference with important implications for both democracy and constitutional practice that can be traced back to ambiguities in Locke's theory of prerogative .     

Constitutional political economy,democratic theory and institutional design

Democracy and constitutionalism are both central to the Western political tradition. And yet, constitutional restrictions are often perceived to be in tension with democratic commitments. I argue that the constitutional political economy approach developed by Nobel Laureate James Buchanan resolves the tension between constitutionalism and the values of democratic governance by shifting the analysis from a system-attributes perspective that focuses on the particular institutional properties of a political order to a system-legitimacy perspective that focuses on the manner in which political institutions gain democratic legitimacy. In so doing, the approach reveals that constitutionalism can be understood as a natural expression of democratic values.     

The rise of the constitutional regulatory state in Colombia: The case of water governance

This article interprets the regulatory state in Colombia as the result of a dialectic process between transnational knowledge and domestic politics, which influence, transform, and inspire each other. Such a process results in an interesting constitutional variant of the regulatory state, in which neo‐constitutionalism becomes a counterbalance to the unchecked expansion of neo‐liberal regulatory practices. I, therefore, distinguish between neoliberal and constitutional regulatory states. As a result of neo‐constitutionalism, the domestic judiciary is empowered, and becomes a crucial actor to understand both the specific traits of this regulatory experience, and its interaction with global centers of power.     

Correlation Versus Interchangeability: The Limited Robustness of Empirical Findings on Democracy Using Highly Correlated Data Sets

This article shows that highly correlated measures can producedifferent results. We identify a democratization model fromthe literature and test it in more than 120 countries from 1951to 1992. Then, we check whether the results are robust regardingmeasures of democracy, time periods, and levels of development.The findings show that measures do matter: Whereas some of thefindings are robust, most of them are not. This explains, inpart, why the debates on democracy have continued rather thanbeen resolved. More important, it underscores the need for morecareful use of measures and further testing to increase confidencein the findings. Scholars in comparative politics are drawnincreasingly to large-N statistical analyses, often using datasets collected by others. As in any field, we show how theymust be careful in choosing the most appropriate measures fortheir studies, without assuming that any correlated measurewill do.     

Banning political parties in a democratic constitutional state: the second NPD ban proceedings in a comparative perspective

ABSTRACT

Backes’s article discusses the judgement of the Second Senate of the German Bundesverfassungsgericht (Federal Constitutional Court) of 17 January 2017—not to ban the right-wing extremist party Nationaldemokratische Partei Deutschlands (NPD)—in light of recent lively international debates on the protection of democracy. It considers the logic of an examination of proportionality as established by German constitutional law, considering aspects of the legitimacy, suitability, necessity and appropriateness of the party ban. The article shows that the newly introduced criterion of ‘potentiality’ requires an examination of proportionality even if the court itself denies this. Thus the threshold for intervention has been raised, moderately, since a concrete or even immediate threat as defined in police law is not required. The Court links the definition of a free democratic basic order more closely to the established minimum definitions of comparative research and provides clarification that further refutes the (exaggerated) accusation of ‘vagueness’. In doing so it has sharpened the contours of the concept of militant democracy that is widely regarded in international comparative studies.     

Majoritarian Democracy in Britain: New Labour and the Constitution

In May 1997 the British electorate voted a Labour government into office after 18 years of Conservative administration. This government has subsequently enacted a large number of constitutional reforms. However, a debate exists in relation to the degree to which, taken together, these reforms amount to a fundamental shift in the nature of British democracy. This article utilises Arend Lijphart's work on patterns of democracy in order to provide a conceptual lens through which New Labour's constitutional reforms can be analysed in terms of representing either a minor or major shift from a traditionally majoritarian to more consensus-orientated system. The article concludes that, although significant, the actual degree of reform in Britain is less radical than is commonly assumed: although New Labour is committed to far-reaching constitutional reform in principle it has been far less committed in practice.     

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.     

The Meaning of Federalism in The Federalist: A Critical Examiniation of the Diamond Theses

Language poses a serious problem in political discourse whenterms like federalism come to mean anything, everything, andnothing. An issue of some importance is how "confederation"was conceptualized in The Federalist, how that conceptualizationwas subject to critical analysis, especially in Federalist 15and 16, and how the resolution of that critique contributedto the conceptualization of a federal system of governance.This essay was written in response to a re-reading of MartinDiamon's essay on "The Federalist's View of Federalism." Theposition taken is that the theory of constitutional choice usedto articulate the arguments in The Federalist provides the appropriatelogic for construing the meaning of federalism despite the ambiguitiesof language contained in The Federalist.     

Postmodernists,pragmatists and the justification of democracy

According to current wisdom, we have entered a new ‘age of democracy’. The new global popularity of the democratic ideal appears likely to pose new challenges to democratic theory, adding yet more formulations and nuances to existing categories. Just as some key questions about democracy–such as ‘why is it a good (or the best) political system?’ and 'precisely what does it demand of us, and owe to us, as citizens?' – become daily more urgent, some worry about the RESOurces of political theory to cope with them, given the apparent shift towards scepticism and a suspicion of large-scale, encompassing claims about politics. This article focuses of four arguments from postmodernist and pragmatist writers who have given democracy a prominent part in their work. It asks whether the writers examined provide convincing justifications for the democratic ideal.