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Published online by Cambridge University Press: 24 March 2022
This article offers a critical discussion of two influential positions in contemporary legal and political theory, which will be referred to as ‘political constitutionalism’ and ‘strong popular sovereignty’. Despite their important differences, both share a sceptical approach to the dominant constitutional practice in liberal democracies, hence they are brought together here under the term ‘weak constitutionalism’. They both highlight the political dimension of the constitution, arguing that democratic legitimacy requires institutional arrangements that give the people and/or their representatives the last word in settling fundamental issues of political morality. By contrast, this article underlines the legal dimension of the constitution as the repository of the moral principles that make possible a practice of public justification in constitutional states. It is from this second constitutional dimension that the critical arguments are developed, both against the desire to take the constitution away from the courts and the aspiration to recognize the constituent power as pre-legal constitution-making faculty.
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3 This evolution can clearly be seen in some relevant authors of this trend of thought. Compare, for example, Jeremy Waldron’s work, ‘A Right-Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18 with ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346 (hereafter, ‘The Core of the Case’). While in the former article the author rejects judicial review in all its forms, in the latter he accepts a weak form judicial review where courts may not decline to apply legislation (or moderate its application) simply because rights would otherwise be violated. Another example can be found in Mark Tushnet’s work, between Taking the Constitution Away from the Courts (Princeton University Press, Princeton, NJ, 1999) and Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton University Press, Princeton, NJ, 2008). Unlike the first book, the second presents different judicial control techniques through which collaboration between legislators and judges can be channelled to make socioeconomic rights more robust.
4 Dixon, R, ‘Creating Dialogue about Socioeconomic Rights: Strong-Form versus Weak-Form Judicial Review Revisited’ (2007) 5 International Journal of Constitutional Law 391, 402–06Google Scholar.
5 This model covers the Canadian Charter of Rights and Freedoms (1982), the New Zealand Human Rights Act (1990) and the United Kingdom Human Rights Act (1998). For a detailed study of this model, see S Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press, Cambridge, 2013). Although the Canadian version is controversial among political constitutionalists, the New Zealand and British versions are generally considered to conform to the principle of parliamentary sovereignty. See, for instance, Waldron, ‘The Core of the Case’(n 3) 1370; Bellamy, R, ‘Political Constitutionalism and Human Rights Act’ (2011) 9 International Journal of Constitutional Law 86, 111.Google Scholar
6 The term is borrowed from Versteeg, M and Zackin, E, ‘Constitutions Unentrenched: Toward an Alternative Theory of Constitutional Design’ (2016) 110 American Political Science Review 658 Google Scholar.
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10 J Aguiló, ‘Cuatro pares de concepciones opuestas de la Constitución’, in J Aguiló, J Ruiz Manero and M Atienza (eds), Fragmentos para una teoría de la Constitución (Iustel, Madrid, 2007), 52–53.
11 These tensions are reflected in the opposing conceptions of the constitution in contemporary debate. In very general terms, it can be said that while ‘proceduralist’ or ‘negotiation-based’ conceptions emphasize the political or constitutive dimension of the constitution, the ‘substantive’ or ‘principle-based’ conceptions stress its legal or regulative dimension.
12 In my exposition, I will not follow any particular theoretical reconstruction of this tradition. My sole intention is to reflect the moral core included in the constitution of a liberal democracy. As I will argue, this moral core is supposed to be shared by the different moral and political positions that coexist in a democratic constitutional regime, making constructive communication between them possible.
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15 According to Kant, a legal system is ‘the aggregate of those conditions under which the will of one person can be conjoined with the freedom of the other in accordance with a universal law’. I Kant, Metaphysical Elements of Justice (2nd ed, J Ladd trans, Hackett, Indianapolis, IN, 1999) 30.
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19 K Möller, ‘From Constitutional to Human Rights: On the Moral Structure of International Human Rights’ (2014) 3(3) Global Constitutionalism 381 (emphasis in original). Besides positive obligations, Möller describes the global model of constitutional rights with three other fundamental features: the inflation of rights, their horizontal effect and the proportionality test in their adjudication. See Möller, K., The Global Model of Constitutional Rights (Oxford University Press, Oxford, 2012) Ch 1 Google Scholar.
20 In broader terms, this is the idea that underlies the communicative (or interactive) theories of legislation: see Witteveen, WJ, ‘Turning to Communication in the Study of Legislation’, in Zeegers, N, Witteveen, WJ and van Klink, B (eds), Social and Symbolic Effects of Legislation Under the Rule of Law (Edwin Mellen Press, Lewiston, NY, 2005) 17, 30–32 Google Scholar; van Klink, B, ‘Legislation, Communication, and Authority: How to Account for the Bindingness of Law?’ in Oliver-Lalana, AD (ed), Conceptions and Misconceptions of Legislation (Springer, Berlin, 2019) 67, 70–72 Google Scholar. According to these theories, law articulates community values in such a way as to provoke deliberation, interpretation and law-making in the community itself.
21 See Rawls, J, Political Liberalism (Columbia University Press, New York, 1993) 137.Google Scholar Here I follow Rawls’ conception of legitimacy, which can be described as both democratic and liberal. This does not mean that I assume his conception of constitutional rights and judicial review, which in my view does not conform to the contemporary constitutionalist paradigm.
22 Postema, G, ‘Positivism and the Separation of Realists from their Scepticism: Normative Guidance, the Rule of Law, and Legal Reasoning’, in Cane, P (ed), The Hart–Fuller Debate in the 21st Century (Hart, Oxford, 2010) 271 Google Scholar.
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26 Pettit, P, Republicanism. A Theory of Freedom and Government (Oxford University Press, Oxford, 1997)Google Scholar; T. Hickey, ‘The Republican Core of the Case for Judicial Review’ (2019) 17 International Journal of Constitutional Law 288.
27 Dyzenhaus, D, ‘What is a Democratic Culture of Justification?’, in Hunt, M, Hooper, H and Yowell, P (eds), Parliament and Human Rights. Redressing the Democratic Deficit (Hart, Oxford, 2015) 425 Google Scholar. The particular institutionalization of this legal culture, and the specific role of the courts within it, will depend on the political circumstances and constitutional tradition of each society.
28 Kumm, M, ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review’ (2010) 4 Law & Ethics of Human Rights 142 Google Scholar.
29 Ibid 154–55.
31 For some powerful defences of complete removal of judicially enforced substantive standards from biding law, see Griffith, JAG, ‘The Political Constitution’ (1979) 42 The Modern Law Review 1 CrossRefGoogle Scholar; T Campbell, ‘Human Rights: A Culture of Controversy’ (1999) 26 Journal of Law and Society 6; A Tomkins, Our Republican Constitution (Hart, Oxford, 2005).
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35 See Vinx, L, ‘Republicanism and Judicial Review’ (2009) 59 University of Toronto Law Journal 591, 593 CrossRefGoogle Scholar.
36 For a defence of the role of courts in protecting both the preconditions of a deliberative democracy and personal autonomy, see Nino, CS, The Constitution of Deliberative Democracy (Yale University Press, New Haven, CT, 1996) 187–216 Google Scholar.
37 See Waldron, ‘The Core of the Case’(n 3) 1370; J Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (Cambridge University Press, Cambridge, 2010) 94.
38 For a defence of constitutional justice as a decisive factor in the promotion of a vigorous deliberative democracy, see R Alexy, ‘Balancing, Constitutional Review and Representation’ (2005) 3 International Journal of Constitutional Law 572; V Ferreres, ‘A Defense of Rigidity’, in P Comanducci and R Guastini (eds), Analyses and Right (Biappichelli, Turin, 2000) 45–68; P Häberle, Die Verfassung des Pluralismus: Studien zur Verfassungstheorie d. offenen Gesellschaft (Athenäum, Königstein, 1980). All these authors consistently point out that the legitimacy of constitutional justice requires that the courts’ arguments be connected to public debate and may reasonably be expected to be accepted without coercion by all citizens as free and equal after a public and deliberative process of justification.
39 Since this defence of judicial review asserts a normative connection between judicial and public opinion, it cannot be seriously challenged by a critique based on an empirical analysis of that connection. For a critique of Alexy’s theory through the analysis of the actual presence of judicial decisions in the media, see D Oliver-Lalana, ‘Representación argumentativa y legitimidad democrática en las decisiones judiciales’, in L Clérico, JR Sieckmann and AD Oliver-Lalana (eds), Derechos fundamentales, principios y argumentación. Estudios sobre la teoría jurídica de Robert Alexy (Comares, Granada, 2010) 147–76.
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42 See Cohen, J, ‘Deliberation and Democratic Legitimacy’, in Bohman, J and Rehg, W (eds), Deliberative Democracy (MIT Press, Cambridge, MA, 1997) 67, 73Google Scholar.
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44 J Raz, ‘Rights and Politics’ (1995) 71 Indiana Law Journal 27, 42.
46 Raz (n 44) 43: ‘The politics of constitutional rights allows small groups easier access to the centres of power, including groups which are not part of the mainstream in society.’ In a similar vein, see Kavanagh, A, ‘Participation and Judicial Review: A Reply to Jeremy Waldron’ (2003) 22 Law and Philosophy 451, 481 Google Scholar.
49 For the role of the courts in constitutionalizing the vote of prisoners in South Africa and the United Kingdom, see Fredman (n 34) 455–68; in Canada, see Dyzenhaus (n 27); and in New Zealand, see A Geddis, ‘Prisoner Voting and Rights Deliberation: How New Zealand’s Parliament Failed’ (2011) New Zealand Law Review 443.
51 Webber, G and Yowell, P, ‘Introduction: Securing Human Rights through Legislation’, in Webber, G, Yowell, P, Ekins, R, Köpcke, M, Miller, BW and Urbina, FJ (eds), Legislated Rights: Securing Human Rights Through Legislation (Cambridge University Press, Cambridge, 2018) 1, 3 CrossRefGoogle Scholar.
52 Kavanagh, A, ‘What is So Weak About “Weak-Form Review”? The Case of the UK Human Rights Act’ (2006) 13 International Journal of Constitutional Law 1008, 1019 Google Scholar.
53 Rishworth, P, ‘The Inevitability of Judicial Review Under “Interpretative” Bills of Rights: Canada’s Legacy to New Zealand and Commonwealth Constitutionalism?’, in Huscroft, G and Brodie, I (eds), Constitutionalism in the Charter Era (LexisNexis, Toronto, 2004) 233 Google Scholar.
54 The literature on judicial self-restraint techniques is extensive. See, for example, A Bickel, ‘Foreword: The Passive Virtues’ (1961–62) 75 Harvard Law Review 40; D Dyzenhaus, ‘Proportionality and Deference in a Culture of Justification’, in G Huscroft, B Miller and G Webber (eds), Proportionality and the Rule of Law (Cambridge University Press, Cambridge, 2014) 234–58; A Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’ (2010) 126 Law Quarterly Review 222; King, J, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 Oxford Journal Legal Studies 409 CrossRefGoogle Scholar.
56 Viciano, R and Martínez, R, ‘Aspectos generales del nuevo constitucionalismo latinoamericano’, in Oleas, A (ed), El Nuevo Constitucionalismo en América Latina (Corte Constitucional, Quito, 2010) 16 Google Scholar. My translation.
57 Colón-Ríos, JI, Weak Constitutionalism. Democratic Legitimacy and the Question of Constituent Power (Routledge, London, 2012) 142 CrossRefGoogle Scholar.
58 See Versteeg and Zackin (n 6) 660–61; R Dixon, ‘Constitutional Drafting and Distrust’ (2016) 13 International Journal of Constitutional Law 819.
59 For a theoretical reconstruction of this model of constitutional design, see, among others, Elkins, Z, Ginsburg, T and Melton, J, The Endurance of National Constitutions (Cambridge University Press, Cambridge, 2009) Ch 4 CrossRefGoogle Scholar; J Dinan, ‘Foreword: Court-Constraining Amendments and the State Constitutional Tradition’ (2007) 38 Rutgers Law Journal 983; V Jackson, ‘What’s in a Name? Reflections on Timing, Naming, and Constitution-Making’ (2008) 49 William and Mary Law Review 1249.
63 See Holmes, S and Sunstein, CR, ‘The Politics of Constitutional Revision in Eastern Europe’, in Levinson, S (ed), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton University Press, Princeton, NJ, 1995) 275–306 Google Scholar.
64 See Przeworski, A, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America (Cambridge University Press, Cambridge, 1991) 80 CrossRefGoogle Scholar.
65 F Tomás y Valiente, ‘La resistencia constitucional y los valores’ (1994) 15–16 Doxa 635.
66 Gallie, WB, ‘Essentially Contested Concepts’ (1956) 56 Proceedings of the Aristotelian Society 167 CrossRefGoogle Scholar.
67 J Aguiló, ‘Sobre el constitucionalismo y la resistencia constitucional’ (2003) 26 Doxa 289, 315.
68 Some examples of this approach include Rawls’ idea of public reason and Ronald Dworkin’s explanation of how moral and political conflicts should be dealt with in a democratic society. See Rawls (n 21) 216–20; and R Dworkin, Is Democracy Possible Here? Principles for a New Political Debate (Princeton University Press, Princeton, NJ, 2006).
71 The classical formulation of this difference lays in Carl Schmitt’s constitutional theory, which is the main reference for defenders of democratic re-constitution: see Schmitt, C, Constitutional Theory (Seitzer, J trans, Duke University Press, Durham, NC, 2008) 150–52Google Scholar.
73 This extraordinary body is convened through the collection of signatures and is activated by popular referendum; its proposals must be ratified by the people before they come into effect. As a channel for the exercise of constituent power, constituent assembly is not subject to any substantive limits stemming from the established legal order.
77 Kumm, M, ‘The Best of Times and the Worst of Times: Between Constitutional Triumphalism and Nostalgia’, in Dobner, P and Loughlin, M (eds), The Twilight of Constitutionalism? (Oxford University Press, Oxford, 2010) 208 Google Scholar.
78 King, J, ‘The Democratic Case for a Written Constitution’ (2019) 72 Current Legal Problems 27 CrossRefGoogle Scholar.
79 See Colón Ríos (n 9) 10, 40, 118, where the author acknowledges that any exercise of constituent power presupposes those institutions and rights of political participation necessary for the very existence of democracy. However, in my view, the recognition of these presumptions is incompatible with the description of constituent power as radically unbounded by any form of positive law. I cannot see how it is possible to guarantee the exercise of such political rights without the discipline of a legal system.
80 This point has received numerous theoretical formulations, among which Jürgen Habermas’s co-originality thesis stands out. See Habermas, J, ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’ (2001) 29(6) Political Theory 767 CrossRefGoogle Scholar.
82 King (n 78) 8–9: ‘One perceived mistake would be to invoke the idea of popular sovereignty by the people, a sovereign collective identity whose pronouncements for the people can persist over time … [Authorship] is a metaphor … The representatives participate in the joint-authorship exercise, in other words, in the name of their constituencies … Hence the final product is not indicative of unanimous actual authorial intention. It is rather the product jointly endorsed as being adopted under the most legitimate procedure.’
83 Schmitt, C, The Concept of the Political (exp ed, Schwab, G trans, University of Chicago Press, Chicago, 2007) 25–37 CrossRefGoogle Scholar.
84 See Vinx, L, ‘The Incoherence of Strong Popular Sovereignty’ (2013) 11 International Journal of Constitutional Law 101, 108 CrossRefGoogle Scholar.
85 In this sense, democratic re-constitution seems to be the driving conception behind the secessionist demands of some minority nationalisms that uphold their right to decide unilaterally on their own form of political life.
86 This would be the position that refuses to turn the European Union into a federal state, however democratic its procedures, arguing that the principle of democracy requires states to have uncompromised external sovereignty. According to democratic re-constitution, a legitimate European federal state would only be possible through the exercise of constituent power by the European peoples acting as a single political community. For an analysis of this conception in the context of the German Federal Constitutional Court’s decision on the compatibility of the Treaty of Lisbon with the German Basic Law, see Vinx (n 84) 114–24.
88 See section IV above.
90 This standard approach is not only prevalent in constitutional theory but is also behind two of the main judicial doctrines on this topic: the Indian Supreme Court’s ‘basic structure doctrine’ and the Colombian Constitutional Court’s ‘constitutional replacement doctrine’. See Roznai, Y, Unconstitutional Constitutional Amendments (Oxford University Press, Oxford, 2017) 42–69 Google Scholar; see also Krishnaswamy (n 7) 118; and C Bernal Pulido, ‘Unconstitutional Constitutional Amendments in the Case study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine’ (2013) 11 International Journal of Constitutional Law 339.
91 For a broader analysis of the nature of constitutional amendment power from a theory of delegation, see Roznai (n 90) 117–20.
92 Here I leave aside the question of whether such limitations should be subject to substantive judicial review. I believe that judicial review of constitutional amendments will be legitimate if it is a necessary practice to maintain a culture of justification in the political circumstances of a given society. In any case, even if constitutional judges are responsible for specifying the extent of the implicit limits to the amending power, there will still be room for interpretation so that the political powers can respond to judicial determinations.
94 This issue has been subject of extensive debate. Particularly noteworthy is its formulation by John Elster as ‘the paradox of democracy’ and the subsequent reply by Stephen Holmes. See Elster, J, Ulysses and the Sirens (Cambridge University Press, Cambridge, 1979) 93–95 Google Scholar, and Holmes, S ‘Precommitment and the Paradox of Democracy’, in Elster, J and Slagstad, R (eds), Constitutionalism and Democracy (Cambridge University Press, Cambridge, 1988) 221–25Google Scholar.
97 See, among others, Balkin, J, Living Originalism (Harvard University Press, Cambridge, MA, 2011)CrossRefGoogle Scholar; Strauss, D, The Living Constitution (Oxford University Press, Oxford, 2010)Google Scholar; Barber, S and Fleming, J, Constitutional Interpretation: The Basic Questions (Oxford University Press, Oxford, 2007).CrossRefGoogle Scholar
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