The Majoritarian Threat to Democracy: Constitutional Courts and the Democratic Pact

The Majoritarian Threat to Democracy: Constitutional Courts and the Democratic Pact

Description

Democracy at its core assumes two central principles: a right of participation by the citizenry and a fair aggregation mechanism such that the majority of those participants will ultimately prevail on contested issues of social policy. Each of the principles is subject to differentiation and contestation. Athens enshrined the concept of democracy with a definition of citizenship so narrow as to offend modern sensibilities. Athens also employed a lottery as a primary aggregation mechanism. While a lottery may be statistically likely to reflect the preferences of a cross-section of the citizenry, the system rejected the concept of formal proportionality among political parties that has become the dominant contemporary model internationally. Yet, the right of the majority to prevail in a contest among the citizenry cannot provide any guarantee of democratic legitimacy. If the terms of the contest are winner-takes-all, it does not matter that the prevailing side conclusively won the support of 51 percent of the voting populace. Without limitations on the scope of ensuing power, and without the possibility of renewed contestation, the claims of the victorious majority to compel the submission of the minority is without any moral force. The tragic “one man, one vote, one time” pattern of postcolonial Africa is a painful reminder of elections that served only as a referendum on who would wear the uniforms of state in consolidating autocratic power over historic enemies. Unfortunately, it turns out that a stable democracy requires that which it cannot offer in its opening stages. The majority’s ability to rule justly must offer the prospect of its being subject to removal if political alliances shift. Correspondingly, democracy must offer to the vanquished of today a chance of at least forming part of the victorious coalition of tomorrow. Democracy requires a credible commitment that elections not only usher in the holders of state power but may be the vehicle of their departure as well. The problem is that no democracy can offer such a credible commitment in its inaugural stages. Further, in countries marked by well-trod lines of violent conflict, especially those emerging from an authoritarian past that has robbed them of organically developed intermediary institutions of civil society, there is no reason to believe that anyone or any group would ever cede power and arms to representatives of its enemies. Over time, various strategies have emerged to address the problem of democratic commitment in divided societies. Following World War II, the dominant approaches were twofold. First, consociational divisions of power among the contending ethnic groups served to apportion political power and, hopefully, compel stable coalitions. Consociational models facilitate governance in the absence of a cohesive majority party and protect groups against abuses of power by pluralities or majoritarian coalitions built along historic fault lines. The key to consociationalism was to limit the capacity of the state to act violently against one or another of the social factions. Having all parties holding partial vetoes on state conduct limited the capacity of the state to act and, thereby, restrained state authority from using military and police powers against vulnerable groups. The second was to create a universal command of human rights that would in turn constrain the scope of governmental power. The human rights command was largely aspirational, despite its incorporation into treaties, but served to reinforce the demand that the state not turn its arsenal on the civilian population. Neither strategy brought about stable and tolerant rule in divided societies. The first, in its more formal commands in countries such as Lebanon or even Sri Lanka, failed to constrain renewed civil wars. The formal division of power led to frustration of groups whose political ambitions and abilities expanded over time, yielding a cauldron of discontent that the hardened lines of consociational rule had difficulty in containing. Meanwhile, the aspirational objectives of the latter proved insufficient to control governmental excesses as the history of the late twentieth century unfortunately demonstrated with depressing regularity. Over the past twenty years, a new wave of democracies has taken hold, most notably in the wake of the demise of the Soviet Union. Almost all the countries of the former Soviet bloc have deep divisions across the cleavages of ethnicity, language, or religion, and in many cases more than one. In all such cases, the critical issue of democratic stabilization is posed anew. While the newly democratizing countries are wealthier than the wave of postcolonial democracies right after World War II, they still share many of the disabilities that would predict unsuccessful efforts to stabilize rule across hardened social divisions. In this chapter, I want to suggest that there is continuity in the challenges faced by new democracies, but a significant change in the strategies that are of moment today. The continuity comes with the critical issue facing new democracies: the need for a credible constraint on the exercise of majoritarian power. The change comes in the form of institutional design, with reliance on consociational power sharing being replaced by a reliance on constitutional constraints on democratic actions that in turn are enforced by constitutional courts created for this express purpose.

Source Publication

Majority Decisions: Principles and Practices

Source Editors/Authors

Stéphanie Novak, Jon Elster

Publication Date

2014

The Majoritarian Threat to Democracy: Constitutional Courts and the Democratic Pact

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