Political Parties and Constitutionalism
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Description
Constitutions and judicial review are often thought of, particularly in more recent decades, as devices for ensuring the protection of individual rights and, through equality provisions, the rights of potentially vulnerable minority groups. Within this conception, constitutional law is viewed as a means of restraining potentially oppressive majorities from running roughshod over personal liberties or the interests of minority groups. This rights-equality conception tends to emphasize what might be called ‘negative constitutionalism’: constitutions as shields against majoritarian excesses. But constitutions also serve to constitute political power. In constitutional democracies, constitutions empower democracy: they create the institutional structures, offices of government and framework for decisionmaking that organize the diffuse preferences of a mass society into recognizable, meaningful and legitimate political outcomes. The study of how constitutions create positive political power, and how constitutional law sustains (or fails to sustain) this power, might be called ‘positive constitutionalism’. Though most modern constitutional scholarship focuses on the role of constitutions as checks on political power, the role of constitutions as creators of political power is at least as important, both historically, in terms of why constitutions were created originally, and in terms of the practice of governance today. For example, the American Constitution, the oldest constitution, was created to realize this kind of positive constitutionalism: its central purpose was to create a powerful, effective system for governance at the national level. Only after that Constitution was created was the Bill of Rights, the provisions designed to check the national government, then grafted on. In general, the raison d’être of constitutions is to create power, albeit power that is checked and channeled appropriately. That means creating the institutions, structures, organizations and legal framework that enable democratic government (at least in constitutional democracies). And in any modern state, one of the most essential elements in democratic self-government is the political party. Although the romantic vision of the individual citizen as the vehicle of democratic self-governance still has powerful emotional and symbolic resonance, the reality is that in any large state, the most enduring and powerful vehicle for organizing citizens into effective participants in politics is the political party. Parties are central to defining political agendas, organizing coalitions of voters, amplifying the voices of diffuse groups and keeping officeholders accountable. In recognition of this fact, Germany’s Federal Constitutional Court (Bundesverfassungsgericht), has described the post-World War II German Constitution as having created a ‘party state’; the meaning of this idea is that democracy is only secured and made meaningful to the extent that free and vibrant political parties are permitted to compete for political power. But political parties in control of the powers of government can also use that power to seek to entrench themselves and reduce competitive pressures from other parties. Thus, constitutional regimes must both protect the role of political parties in democratic processes and protect democracy from partisan attempts to manipulate the rules of political engagement. This chapter explores how constitutional texts and court decisions have engaged the now well-recognized centrality of political parties to making democratic self-government meaningful.
Source Publication
Comparative Constitutional Law
Source Editors/Authors
Tom Ginsburg, Rosalind Dixon
Publication Date
2011
Recommended Citation
Pildes, Richard H., "Political Parties and Constitutionalism" (2011). Faculty Chapters. 1955.
https://gretchen.law.nyu.edu/fac-chapt/1955
