I am writing this book during difficult political times (and I am writing it at this particular moment largely because of them). We live in the era of the “Arab Spring,” “Black Lives Matter” in the United States, and the rise of Syriza in Greece and Podemos in Spain, not to mention the “They all must go” movement in Argentina (“Que se vayan todos”). It is a time of massive demonstrations and protest against current authorities in Catalonia and Ecuador, a time when millions have descended to the streets to demand President Piñera’s resignation in Chile. Many of our constitutional democracies seem haunted by the same specter, that of “democratic fatigue” or “discontent.” Citizens seem fed up with their government institutions and tired of those who represent them in it. The notion of “democratic fatigue” and the related sense that democracy is being “eroded from within” to the point of being hollowed out are commonplace in the current social science literature. No longer are we as worried by the prospect of democracies “dying in a single blow” as was typical in the recent postcolonial era of military coups and dictatorships. Rather, we now talk about the “slow death” of our democracies through a gradual “dismantling” of their institutions by leaders who have consolidated their power in a series of arguably legal moves.
The outcome of progressive degradation in the government system is familiar (and is what generates the “fatigue”). There is a tendency to move from a government “of the people, by the people, for the people” to a government “of a few people, controlled by a minority, at the service of the privileged.” Our institutional system (and I say “our” with the constitutional model in mind that has been adopted in most Western nations since the end of the eighteenth century) resembles a system that has been “captured.”Footnote 1 Utterly perplexing stories are told all over of authorities who behave simply and unabashedly however they want, as if the rules they have to follow have been suspended, as if the boundaries on their power did not exist – authorities who proudly wear constitutional robes and democratic trappings while spouting human rights discourse. Moreover, they go unflinchingly about their business in a bureaucratically efficient manner, with an eye on best practices, proper attire, and the requisite array of erudite legal references.
I am writing this book in the face of a disheartening landscape and am trying to facilitate critical reflection on the situation in which we find ourselves – a reflection that is meant to help clarify our ideas and reexamine the settled truths we unthinkingly repeat. I am particularly interested in pushing back against a tendency coming from the social sciences to relate the democratic crisis underway with the actions of some reckless leader currently in power (say Jair Bolsonaro, Nicolás Maduro, Daniel Ortega, Viktor Orban, or Recep Erdogan) or with the breakdown of an institutional system that has been corrupted (as in Argentina, Colombia, Mexico, or Peru where dozens of parliamentarians and political leaders have been convicted). This kind of approach – which I will argue is mistaken – leads many prominent authors in the current generation of social scientists to focus their efforts on bringing about a change of leader (Impeach Trump!), adjusting the “old model” (to restore checks and balances, recuperate effective controls, or reestablish institutional “escape valves”). Or they focus their efforts on reinvigorating the sense of civic responsibility and duty in order to resolve, more or less definitively, the political “dramas” of our times.
I will argue that these efforts are useless for several reasons that will be subjected to a fairly meticulous examination over the course of this book. Above all, I will argue that it is mistaken to blame the apathy, indifference, or distaste of “people in general” (to the degree that the population’s views can be generalized) toward politics on a lack of engagement or desire to participate in political decision-making. Rather, I hold, the apparent indifference should be understood as an endogenous product of the institutional system itself; that is, something about the way the system is arranged produces or at least aggravates it. The protests and demonstrations that take place on a daily basis from Seattle to Washington, DC belie the notion of generalized political apathy as it is traditionally understood in the United States – and so did the thousands of volunteers who went from neighborhood to neighborhood knocking on doors to support Barack Obama’s presidential campaigns. Whether or not these examples are convincing, what can be observed is not a population disinterested in politics, but an institutional system that currently represents the only effective channel of democratic participation and yet discourages regular voting. Similarly, the hollowness of the notion of “apathy” that was used for decades to describe the political context in countries like Brazil or Argentina has also been revealed by frequent, massive demonstrations by sectors of the population actively demanding respect for their rights. These demonstrations take place despite the limitations imposed by very restrictive institutional systems that characterize the region (the most restrictive of which being the Chilean model put in place by the dictator Augusto Pinochet forty years ago that remains intact today). Again, if citizen engagement is lacking, the cause has to do with the institutional arrangements that discourage or prevent it.
This is why I emphasize so strongly the importance of avoiding the conflation of democratic and constitutional problems – something that, I believe, we continue to do. The type of crisis we are facing has more to do with a democratic deficit (the way our institutions resist and block citizen control and decision-making power) than with the specific processes within the constitutional system by which each branch of the government checks and balances the others. I do not deny that this internal system is being undermined, but the recent impairments are rooted in deeper problems that date back from long ago.
The problems we are facing go well beyond personal ambitions and political circumstances. We need to look past the current political situation and leaders. I would like to show that changing the leadership or making “technical adjustments” to the current system will not enable us to regain what we lost or eliminate what causes our revulsion and fatigue. I would like to focus on structural factors related to the institutions we have. Among those institutions, I will center my examination on those that are germane to constitutional democracy, not because I take the “constitutional bases” as necessarily our most important institutions, but rather because I feel that they deserve special attention and careful study, which they have largely failed to attract.Footnote 2
In this regard, throughout this work I will repeatedly return to the idea that the original institutional system has been completely overwhelmed (to give a sense of the environment in which I am writing this book, at the moment extraordinary demonstrations are rocking Chile, Ecuador, Bolivia, and Spain). The institutional scheme no longer appears capable of carrying out even a portion of what it promised at its foundational moment – the promise on which its legitimacy stands.Footnote 3 To make sure my point is clear, not even were the current institutional system functioning perfectly could it make good on its early ambitious promises. I am referring to its inclusive promise – “full representation”; to its promise of respect for the rights of overlooked minorities; and its promise to recognize the sovereignty of the people’s voice. As we will see, countless changes have taken place since the foundational moment – changes in circumstances and in thinking. These changes have been so profound that we should not be surprised that the situation we face is dramatically expressed in terms of overwhelmed institutions and an alienated society. The institutions are no longer capable of meeting the expectations of their initial aspirations and promises while the society increasingly sees them as alien, distant, and removed.
1.1 The Democratic Objection is Still There
“When he woke up, the dinosaur was still there.”
The concrete institutional problems that I identified as characteristic of our time are rooted in causes that transcend both our current dilemma and the cast of political actors currently on stage. For that reason, I hope you will allow me to take a few steps back. My approach in this book requires a certain distance for the sake of perspective and a thorough analysis.
Practically speaking, constitutional democracy as we know it has displayed certain traits from its outset – over two centuries ago – that should concern us. These traits threaten to make our worst fears reality. The risk is that constitutionalism, instead of reinforcing freedom – both personal and collective – may be used to broaden the liberty of some at the expense of the liberty of others. This is the type of problem to which we refer when we speak of the tension between constitutionalism and democracy.
As will be shown, the first problem of our constitutional legal tradition is that, from its outset, its framers have been reticent, if not unwilling, to grant the general populace a protagonist role in civic matters. Instead, they sought to limit, not foster what Thomas Jefferson called the “direct and constant control by the citizens.”Footnote 4 Our constitutional legal tradition was thus marked by distrust of the common citizens’ capacity for political virtue – what Michael Sandel would call “democracy’s discontent.”Footnote 5
This distrust can be detected in the notion that only certain people have the ability to recognize what comprises the “public interest” that law should serve (the “representatives” of the people rather than the people themselves; trained “judges” rather than ordinary citizens). Such elitist presumptions were characteristic of the predominant discourse at the “founding moments” of modern constitutionalism, yet they neither disappeared over time nor grew obsolete, like laws passed in a bygone era that we simply forget. The initial “distrust” was translated, from the outset and ever since, into a system of institutions that remains intact. In some cases, the framers expressed anti-majoritarian intentions unabashedly. A severe case is that of Jaime Guzmán, the juridical architect of Pinochet in Chile, whose 1980 constitution was explicitly devised to prevent the conservative minority’s adversaries from dislodging them from power – reducing constitutionalism to a small cage to keep democracy under control.Footnote 6 We live by mechanisms for governance designed upon these types of premises, premises that justify the democratic objections of today and yesteryear against the scheme in place: the democratic objection that arose alongside constitutionalism has never dissipated, while constitutionalism itself has been consolidated.
What is worse, the constitutional system of checks and balances has not mitigated the democratic deficit over time. Instead, the problem has deepened, which only reinforces the validity of the democratic objection. Matters have worsened, as we will see, in at least two important ways. To begin with, the institutional situation is much worse, because the societies in which we live have evolved so much since the days of the framers. The societies that the “founding fathers” had in the backs of their minds when they drew up the original constitutions differ starkly in terms of composition, looming dangers, internal conflicts, and the divisions upon which social identities are formed. Secondly, and this point is more relevant to my argument in this book, we are coming off the “victory” of democracy as the dominant paradigm over communism, when more than ever people subscribe to its values. Never before has the citizenry been as “empowered,” following the current jargon, to intervene and participate capably in decisions on public matters that concern it. What I am trying to say is that the institutions designed on the basis of distrust toward the masses now clash with a citizenry that demands trust, one that will no longer lower its voice, bow its head, and go sit and wait at home. Addressing the discrepancy between what the institutions were designed to do, what they promised to deliver, and what society expects of them has thus become imperative. The gravity of the situation is compounded by the unfortunate circumstance – the circumstance that, in a way, drove me to write this book – that the most heralded theorists within the constitutional tradition, the ones that recognize the democratic “fatigue” or “erosion” afflicting us, nevertheless superimpose the issue of democratic deficit on questions of constitutionalism. The resulting theory thus proposes constitutional solutions (“tightening screws” in the “engine room” of the constitutional system) for problems whose root is of another order – the nature of our democracy itself. As a result, even in the best of cases, the democratic deficit causing our anguish goes on, untouched and intact.
After more than two hundred years, the democratic objection to the original constitutional framework remains, without doubt, as strong as it ever was. Like the dinosaur in Monterroso’s short story (often considered the shortest story ever told), we have woken up but the “democratic objection” has not left. Despite decades upon decades spent in debates and refutations, the simple, even obvious objection still stands, right where it has been from the start. For that reason alone, we have the right to ask ourselves why the decisions on the matters that are most important to us are left to others to make, in our name, and in spite of our disagreements with them. We argue and haggle until we can shout no more, so we take a break, and when we start up again, the democratic objection is right where we left it.
1.2 Of History and Ideas
What I have been describing, in terms of the institutional limitations that beleaguer us, points to an issue that is especially relevant for my argument in this book. I am referring to the “mismatch” between our institutions and the expectations and demands that the citizenry has of and places on them. We will delve into this issue in more detail in the next chapter, but to put it briefly, the institutions of which we currently dispose do not respond very well to our needs or our expectations. The mismatch is likely produced by many factors but, for the purpose of this work, I will emphasize two in particular: causes rooted in the historical paths our nations have followed and ideological reasons; that is, reasons related to ideas about objectives and regulation. Without going into them deeply at this point, I would like to provide some preliminary considerations.
1.2.1 “History”
Regarding the historical reasons for the discrepancy that concerns us here, among the many explanations for the choice of constitutional institutions with which we find ourselves, one in particular focuses on the history of constitutionalism itself. Many of our most important institutions were created in response to the specific problems our ancestors confronted during an era or historic moment. At the time, they may have represented the best response available, considering the circumstances in which they were deemed necessary, but that does not mean that they would necessarily continue to be adequate for the new problems to come brought by changing times.
In my opinion, the Argentine jurist Juan Bautista Alberdi wrote brilliantly about these matters. He recognized the importance of designing constitutions that addressed the problems – the “dramas” or “tragedies” – facing society at the time. In this regard, the starting point for his reflection on constitutionalism differed significantly from that of many other jurists of his time, for whom constitutionalism represented a long-term project. For them, the idea was to elaborate a constitution that would crystallize society along the lines it established and, for that reason, it made sense to elaborate a “rigid” charter to make changes or reforms more difficult. Against that predominant vision, Alberdi proposed an understanding of constitutionalism in terms of the “dramas” of the time. Different eras faced different dramas, thus requiring different constitutional responses. For different, perhaps even more interesting reasons (related to collective self-government), Thomas Jefferson would also adopt a vision of constitutionalism much more grounded in the immediate context. Jefferson went as far as suggesting that the constitution be modified every nineteen years, the period that according to his calculations corresponded to generational turnover. Each generation, he maintained, should have its own constitution. Similarly, Article 28 of the Declaration of the Rights of Man and of the Citizen adopted by France in 1793 established that “A people has always the right to review, to reform, and to alter its constitution. One generation cannot subject to its law the future generations.”
Alberdi’s thinking followed a comparable, sympathetic, and ultimately similar line. He praised the constitutional theorists who had preceded him in America, theorists whom many of his contemporaries criticized. Alberdi extolled his predecessors for correctly conceptualizing the problem: they had recognized that constitutions are born of and in response to the “dramas” of the moment, and the constitutions they produced had done just that.Footnote 7 Alberdi asked himself:
All the Constitutions enacted in South America during the war of independence were complete expressions of the needs that dominated their time. That need consisted in putting an end to the political power exercised by Europe in America, which began during the conquest and continued during the time of colonialism … Independence and external freedom were the vital interests that concerned the legislators of the time. They were right: they understood the needs of their time, and they knew what to do.
In other words, Alberdi praised the first American constitutionalists because they understood the need for, first and foremost, independence. Body and soul, they devoted themselves to consolidating independence through a constitutional framework. With this understanding in mind, it should not be hard to anticipate the question he posed to the jurists of his own generation. He asked his contemporaries to consider the needs of the new era, the “dramas” that they needed to resolve. Naturally, he also offered an answer. Alberdi declared:
At that time, what was required was to consolidate independence through the material and moral enhancement of our peoples. The main goals of that time were political goals: today we need to concern ourselves with the economic goals.
What was needed, therefore – in his personal opinion – was populating the country in order to confront – as he would famously argue – the drama of the “desert.” This involved promoting immigration to provide an adequate labor force, developing commerce with other nations, and establishing legal frameworks for contractual obligations that, together, would lead to economic development. All of these required a completely new and distinct constitutional ordering. Above all, I want to draw attention to the aspect of Alberdi’s reasoning that is most relevant to this work, and I want to do it in an “Alberdian” way. I want to focus on the “mismatch” that Alberdi implicitly identified between the original constitution of Argentina and the “dramas” facing his generation in order to shed light on our own dilemma. Part of the institutional problem we are facing is related to a central aspect of Alberdi’s intuition. It is possible that our institutional arrangement has become obsolete, but not for the simple reason that it was created hundreds of years ago, or because so much has happened since then. Rather, it is simply not equipped to recognize and address the urgent, even dire “dramas” that mark the present day. We must answer for ourselves the question Alberdi posed to his contemporaries: What are the distinctive aspects of our era, the demands, needs, expectations, and calamities, that should be identified and addressed by the highest law of the land – constitutional law? Is it time for us to pay serious attention, finally (and through constitutional means), to the “drama” of inequality in which we have long been mired?
1.2.2 “Ideas”
In addition to foreshadowing some of the crucial historical factors behind our current dilemma that this book explores, I also want to give an indication of the ideological terrain to be covered, for the heart of this book is especially centered on the ideas (or principles and promises, if ideas is too vague) upon which modern constitutions rest. I am going to argue that modern constitutions are the fruit of a certain way of conceptualizing and understanding the world, which itself was the product of premises and principles from times long past (the times when those original constitutions were written). I would like to emphasize a specific problem related to what I have described above in terms of a “mismatch.” Our constitutions were conceived at a particular moment in our histories when power over the Americas passed from metropolitan European elites to colonial American ones. Yet they were still written by local elites whose thoughts and actions squared harmoniously within an elitist paradigm. In saying this, I am not giving credence to any conspiracy theories regarding the intentions of our founding fathers, or drawing on explanations that are either far-fetched or anachronous. It has long been established by respected scholars of many stripes that our “constitutional fathers” – almost without exception – shared a sense of, as I will refer to it repeatedly, “democratic distrust.” They distrusted the common citizens’ capacity for self-government; they distrusted their ability to exercise self-restraint out of respect for minorities; and they distrusted their aptitude for resisting the temptation of impulsive behavior.
This shared understanding was expressed in hundreds of “founding” documents and speeches. Its breadth and depth preclude any attempt to reduce it “anecdotally” to, for example, “the way people used to talk” – but no longer do, having long understood, once and for all, how preposterous that kind of elitist rhetoric is. I am interested in showing how our constitutions feed on those elitist premises and principles, and how the latter have shaped our current institutions. In other words, “democratic distrust” – the fear of being subjected to majority rule and the consequent counter-majoritarian bias that motivated our founding fathers – did not “evaporate” as society evolved to some higher awareness. It was incrusted in concrete institutional arrangements that still form the nucleus of our constitutions. Allow me to provide a few familiar examples to illustrate my point (examples that represent a central part of the analysis to come). Our current organizational model for the judiciary, for instance, is based on the hypothesis that impartiality is better served by entrusting adjudication to highly trained individuals than to democratic or collective reflection. Similarly, the “distance” or “gap” that we currently observe between electors and the elected derives in large part from a model chosen in order to insulate elected representatives as much as possible from the passions or irrationality of the masses. Hence the highly reduced number of institutional channels for communication with and control over our representatives – which for most people extend no further than voting in periodic elections. This feature is not an anomaly or oversight of the system; rather it reflects that the conviction could and should operate with little citizen participation or engagement. The idea of democratic distrust is of first-order importance in the explanations for all of these crucial decisions in our constitutional structure.
Because of this ideological landscape characterized by distrust of the citizens, resistance against civic engagement, and fear of democratic rule, a rift between constitutionalism and democracy has emerged. Moreover, for reasons I will discuss, the rift has become much more radical of late. Constitutional institutions are no longer conceived as centrally devoted to recognizing, expressing, or facilitating the formulation of the citizens’ collective will. The opposite is closer to the truth: democratic rule has been confined to narrow spaces under the care and control of the leading elites. That is why some of the most renowned studies of democracy and constitutionalism of our time ask, as Robert Dahl did in one of his most well-known books, How Democratic Is the American Constitution? (2013) or even assert that is not, as Sanford Levinson did in the title of his renowned book, Our Undemocratic Constitution (2008).
The spirit that animates this present work, however, is contributing to rebuilding the ties, now long destroyed, between democracy and constitutionalism. The task does not involve repairing what has broken, nor resuscitating practices from distant times and places. The chore we face is rebuilding the link between constitutionalism and democracy through the most honorable and respectable means: through conversation among equals.
1.3 Three Clarifications
Before continuing, I would like to make three clarifications in order to preclude possible misunderstandings of what I have already presented, as these clarifications will take on greater relevance in the pages that follow.
1.3.1 Rights
Above all, I must insist that giving democratic deliberation back its central place in constitutional self-government does not imply in any way making concern for rights secondary or peripheral, or adopting, as some do, an attitude inspired by Jeremy Bentham’s dismissal of rights as “nonsense upon stilts.”Footnote 8 Such a misunderstanding is made possible by the error of believing that there exists only one way to protect rights – by explicitly enumerating the rights to be strictly protected by “traditional” legal means. I am referring to the misunderstanding that expresses itself in the idea that only counter-majoritarian institutions are capable of guaranteeing rights. This assumption implies, conversely, that the only way to take rights seriously is by undermining, in one form or another, the democratic caliber of constitutionalism. In fact, there are various ways to protect rights, and not all of them require abandoning or compromising our basic democratic demands. We can keep democratic dialogue in the center of the process of government decision-making without abandoning our commitment to procedures that help us ensure effective rights. Mechanisms to reinforce limits on power without negating majority rule, for example the abandoned practice of “resending” questionable laws to the legislature for revision, come to mind. Similarly, in the past, forms of legislative “insistence” were conceived to require broader majorities in certain circumstances. Another possibility, one that is regaining attention, is instituting judicial review that is more deferential to the legislature. In other words, the courts are asked to show greater consideration for the democratic caliber of the laws that come before them. As will be shown, strict adherence to democratic principles does not require aversion to rights.
1.3.2 Democracy
The second clarification I would like to make is the following: My repeated insistence on the centrality of the democratic nature of the dilemma before us in no way implicates an overly simplistic notion of democracy essentially limited to its most direct and spectacular expression – making decisions through votes. The contrary is more accurate: in this work, I defend a notion of democracy that is somewhat peculiar. It is in line with the regulative ideal that arises and takes shape with reflection on law as a conversation among equals. That ideal involves a more demanding and complex notion of democracy. It is one that puts special importance on requirements such as equality (equal status for every participant); making sure all groups affected by a decision have been heard; and a prolonged period for debate (which increases the need for information, transparency, and public discussions where proposals can be mutually presented, challenged, and revised). From this ideal point of view – that of a conversation among equals – the plebiscitary option (in its least interesting yet most familiar form) is seen as the exception (one that must be strictly regulated in order to be acceptable), rather than as the rule. The referendums we have recently seen (from the Brexit vote in England to the referendum for the peace agreement in Colombia) seem to be, from this perspective, more indicative of the problem than a solution to it. Contemporary plebiscites are less “conversations among equals” than the final blow of the gavel in a ceremony organized by a central power who knows how to leverage its increasingly vertical integration to its advantage when organizing the referendum.
1.3.3 Utopian Fantasies?
The third concern that I would like to address at the outset relates to the apparently utopian character (meaning far removed from reality and the law) of the model of democracy I am defending. Far too often, whenever someone suggests alternatives involving democratic deliberation or dialogue, the immediate energetic and even arrogant response is the “realist” critique that usually takes the form of “that all sounds great, but in this world it simply is not possible.” These detractors suggest that we must return to reality – the reality that they understand better than anyone else. Fortunately, reality has finally come in line with the vision defended by those in favor of democratic dialogue, such that we now have marvelous examples that refute this kind of criticism. Truth be told, the present political moment of humankind, however dark and complex it is, does have something interesting to show us. It relates to the recent emergence of numerous experiences that illustrate, in practice, the possibility and effectiveness of what we mean when we speak of “democratic dialogue” or “collective conversation.” What we are talking about, ultimately, are extensive and inclusive debates in which “all those affected” participate. I am particularly interested in examining collective, open, and frank collective public discussions such as the one that took place in Ireland on the topic of abortion (or, on the same topic, even in Argentina, although the process there was subjected to more “top-down control”). Other instances include the “deliberative assemblies” that have been popping up across the western world since the beginning of the twenty-first century: from Australia to Canada; from Iceland to Chile or France. Examples such as those cited (we will explore several others in the pages to come) enable us to negate without fuss the widespread “realist refutation.” We are talking about discussions in which people of all ages – from teenagers to the elderly – took part. Some were highly trained professionals, others practically uneducated. The discussions took place in a wide range of social settings and seem to have (accidentally and unexpectedly) created the conditions necessary for people of apparently firm and even biased convictions to change or significantly modify their positions after debating them with others. Who would expect, for example, that a Catholic agrarian society where the Church is as powerful as in Ireland would open itself to discussions that led a majority to adopt a position in favor of legal abortion? We will look more closely at what occurred when I examine the new forms of collective dialogue.
To put it bluntly, it is possible to protect rights without a counter-majoritarian institutional system and constitutionalism does not require sacrificing democracy.
