Precommitment and the Paradox of Democracy
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Description
“II est absurde que la volonte se donne des chaines pour l'avenir.” Rousseau. Laurence Tribe opens his influential treatise on constitutional law with a concise formulation of the countermajoritarian dilemma—the discord between majoritarian politics and constitutionally anchored restraints: “In its most basic form, the question . . . is why a nation that rests legality on the consent of the governed would choose to constitute its political life in terms of commitments to an original agreement . . . deliberately structured so as to be difficult to change.” The underlying problem has been posed in a variety of ways. How can the “consent of the governed” be reconciled with the preempting of subsequent consent by a Constitutional Convention? Why should a constitutional framework, ratified two centuries ago, have such enormous power over our lives today? Why should a minority of our fellow citizens be empowered to prevent amendments to the Constitution? Is judicial review, when based on a superstitious fealty to the intent of the Framers, compatible with popular sovereignty?
Source Publication
Constitutionalism and Democracy
Source Editors/Authors
Jon Elster, Rune Slagstad
Publication Date
1988
Recommended Citation
Holmes, Stephen, "Precommitment and the Paradox of Democracy" (1988). Faculty Chapters. 820.
https://gretchen.law.nyu.edu/fac-chapt/820
