Constitutions and Constitutionalism
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Democratic theory conventionally defines a constitution as a ‘higher law’ that cannot be changed through normal lawmaking procedures in a popularly elected assembly. Exceptional legal entrenchment is said to insulate constitutional rules from the majoritarian controls that purportedly govern ordinary legislation. In this way, a constitutional text strives to make fast the form of government (a presidential or parliamentary, a unitary or federal republic), the limits of government (inviolable rights and immunities), and the goals for which the government is empowered to act (to ensure domestic tranquility, provide for the common defense, and promote the general welfare). With this rough understanding of a democratic constitution in mind, constitutional theorists routinely plunge into a heated debate over the counter-majoritarian dilemma, namely the question: Why would constantly renewed generations of voters remain committed to an inherited arrangement that was intentionally crafted to be difficult to change? The so-called counter-majoritarian dilemma, however, is both politically fraught and analytically confused. American liberals, for example, have an incurably schizophrenic attitude toward counter-majoritarian institutions. On the one hand, they favor rigid restraints on racially bigoted majorities but, on the other hand, they oppose rigid restraints on economically redistributive majorities. American conservatives are no more consistent. A theoretically coherent and nonpartisan approach to counter-majoritarian institutions is nowhere to be found. The very idea of counter-majoritarianism suffers from a deeper flaw, moreover. The lex majoris partis is one of those decision rules that allow a population of human beings to make collective decisions for the first time. It may be a rational rule, but it is nevertheless a rule that is presupposed by, not produced by, collective choice, and that includes the choices attributed to an imaginary popular sovereign. Unless such a constitutive rule is already in place, the nation or the people cannot hammer out the kind of ‘constitutive will’ that could subsequently be thwarted or betrayed. This consideration reveals the flaw in Jon Elster’s much-discussed but abortive attempt to explain, by drawing an analogy between constitutional conventions and Ulysses ordering himself to be bound to the mast of his ship, how a democratic people could impose a constitution on itself.3 That this eye-catching parable does little to illuminate the origins, survival, and function of democratic constitutions (by which democratic peoples purportedly bind themselves) is by now widely acknowledged, even by Elster himself. The main defect of the analogy is that Ulysses operated as a coherent decision-maker, capable of issuing authoritative commands and being duly obeyed, prior to ordering his sailors to lash him to the mast. Only the acknowledged captain of a deferential crew, not a politically amorphous population operating without pre-established decision rules or a clearly demarcated boundary between members and nonmembers, could play such a constitutive role. Unlike hundreds of thousands of independent villagers and subsistence farmers strewn across a lengthy Atlantic coastline, compact political elites have a pre-constitutional capacity to create, amend, interpret, and enforce constitutional rules that favor their real or imagined interests. But this does not necessarily mean that ‘constitutionalization’, as neo-progressives continue to urge, is ‘driven primarily by political interests to insulate certain policy preferences from popular pressures’. Political, social, and economic elites have reasons to bind themselves that are related only incidentally to parrying majoritarian demands. This issue has been muddled in US historiography because the Contracts Clause was obviously inserted in the Constitution by creditors and their allies to resist the demands of debtors and tax delinquents.6 But governments routinely commit to repaying loans not only to resist the Sirens’ songs of tax relief and paper money but also in a bid to become a Siren. By making credible commitments to pay back loans, a government can entice money, at relatively low interest rates, from the pockets of money-lenders in a way that unbound borrowers cannot easily do. The unlocking of foreign and domestic credit by governments that have established a reputation for creditworthiness is a good example of elite self-binding for the elite’s own advantage. It suggests that the powerful can have a strong incentive to make their behavior predictable even in the absence of popular pressures. But this is only one example among many.
Source Publication
The Oxford Handbook of Comparative Constitutional Law
Source Editors/Authors
Michel Rosenfeld, András Sajó
Publication Date
2012
Recommended Citation
Holmes, Stephen, "Constitutions and Constitutionalism" (2012). Faculty Chapters. 793.
https://gretchen.law.nyu.edu/fac-chapt/793
