V. disagreement and the constitution of democracy
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Perhaps we should change our focus from constitutionalized practices of democracy to democratized practices of constitutionalism. Dworkin and Perry both seek to respond to democratic objections to judicial review by relying on a theory of the legitimacy constraints of democracy itself. According to this view, on some matters, legitimate democracy requires getting the right moral answers. Thus democratic processes must be constitutionalized to ensure such right outcomes on fundamental moral matters. To the extent that judges are better positioned to engage in principled moral reasoning, the arguments continue, we ought to entrust them with ensuring the constitutionalized legitimacy conditions of democracy. I argued that this latter institutional move, however, threatened to simply revive the paternalist worries forcefully articulated by Learned Hand. Waldron’s rights-based objection to rightsbased judicial review, although not dispositive, provided further warning of the moral costs of treating fellow citizens as incapable of reasoning together about the content and proper scope of the legal rights required for democracy. An alternative strategy for justifying judicial review that this chapter investigates is to understand a constitution itself as a product of true democracy, of real popular sovereignty. It is then up to the people, exercising their constituent power at the level of a constitutional assembly, to decide what particular institutional arrangements will best carry forward their collective ideals and decisions. The specific character and structure of those arrangements—whether they are populist or elitist, deliberative or aggregative, sensitive or insulated, electorally accountable or politically independent, and so on—is then a secondary matter. What is central is that the constitutional arrangements the people decide on are, first and foremost, democratically legitimated by the fact that they are the result of authentic popular sovereignty..
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Fabienne Peter (2007). Democratic Legitimacy and Proceduralist Social Epistemology. Politics, Philosophy and Economics 6 (3):329-353.
Joshua Cohen (2009). Philosophy, Politics, Democracy: Selected Essays. Harvard University Press.
John Parkinson (2006). Deliberating in the Real World: Problems of Legitimacy in Deliberative Democracy. OUP Oxford.
N. Maccormick (1997). Democracy, Subsidiarity, and Citizenship in the ‘European Commonwealth’. Law and Philosophy 16 (4):331-356.
A. Harel (2003). Rights-Based Judicial Review: A Democratic Justification. [REVIEW] Law and Philosophy 22 (s 3-4):247-276.
Luigi Ferrajoli (2011). The Normative Paradigm of Constitutional Democracy. Res Publica 17 (4):355-367.
Amy Gutmann & Dennis Thompson (2000). Why Deliberative Democracy is Different. Social Philosophy and Policy 17 (01):161-.
Stephen Macedo (ed.) (1999). Deliberative Politics: Essays on Democracy and Disagreement. Oxford University Press.
Thomas Christiano (2010). The Constitution of Equality: Democratic Authority and Its Limits. OUP Oxford.
Samuel Freeman (1990). Constitutional Democracy and the Legitimacy of Judicial Review. Law and Philosophy 9 (4):327 - 370.
Added to index2009-10-10
Total downloads16 ( #104,063 of 1,102,834 )
Recent downloads (6 months)0
How can I increase my downloads?