DEMOCRATIC THEORY AND CONSTITUTIONAL LAW

Much of American constitutional theory and law is concerned with the existence and significance of conflict between democracy and constitutionalism as implemented in this country. Democracy is often thought to be in conflict both with constitutionalism as a general matter and with the institutional implementation that Americans have largely come to identify with constitutionalism, judicial review.

Whether there is any inconsistency depends first on the nature of constitutionalism and the particular features of the constitution in question. At the very least a constitution is a set of rules that describe a structure of government, a way of making official decisions. The U.S. Constitution, like many others, is entrenched, which is to say that the ordinary legislative processes for which it provides are not empowered to change the Constitution itself. Congress, for example, may not provide in legislation that there shall be three senators from every state. Again like many others, the U.S. Constitution goes beyond prescribing a structure and places substantive limits on the power of the government it creates. The theory of constitutionalism is especially concerned with entrenchment and the hierarchical system of legal rules that produces it.

A constitution can conflict with democratic principles if it sets out a nondemocratic structure of government or if it sets out a democratic structure but limits the power of the government so created. The standard argument that the U.S. Constitution is undemocratic rests on a relatively simple concept of democracy, assuming that it consists of simple majority rule, either directly or through a representative legislature. By this test the constitutional structure itself is undemocratic because the U.S. senate and the electoral college give disproportionate weight to the influence of voters in small states. Moreover, the ordinary government, itself only somewhat majoritarian, is subject to limits that can be overridden only through the even less-majoritarian amending process of Article V. Amendment requires a supermajority of three-fourths of the states, so that even a small minority of the population can block constitutional change.

To the extent that the Constitution still protects state autonomy from national legislation it might be said to be undemocratic in one more way, because reserved state powers can block the decision of a national majority. Yet, clashes between local and national majorities present a problem concerning the definition of the relevant political community.

Whether there is really a conflict between the Constitution and democracy, however, depends on the content of democratic theory. Much of American constitutional commentary concerns the presence or absence of that conflict, and hence turns on the proper understanding of democracy. In particular, those who argue that constitutionalism and the U.S. Constitution do not actually conflict with democracy commonly appeal to a more sophisticated notion of democracy than the absolute rule of a majoritarian assembly. Three strategies of reconciling constitutionalism and democracy are especially important. Of those, two maintain that entrenchment and substantive limitations can provide prodemocratic corrections for the failings of ordinary representative government, while the third rejects an essentially procedural understanding of democracy.

According to the first such argument, representative assemblies are prone to make decisions that reflect the short-term but not the long-term views of their constituents. Seemingly undemocratic structures like bicameralism and substantive limitations like the contract clause can respond to those tendencies. On this account such limitations are a form of collective self-binding, the standard example of which is Odysseus's strategy of having himself bound to the mast while he listened to the Sirens' song. Fearful of what they and their representatives may do in perilous economic times, for example, the people in a sober moment of constitution-making may adopt a provision like the contracts clause banning state impairment of contractual obligations, thus limiting the legislature's flexibility in times of crisis.

Whether such arrangements perform as designed is a question for political science. Whether they are consistent with democracy is a question for normative democratic theory. Three questions seem particularly important. First is the basic issue of establishing the power of decision when the people are divided. May a majority, or a super-majority, properly bind a minority? To the extent that democracy entails such binding, as in most conceptions it does, it is in an important sense collectivist, allowing the choices of individuals to be overridden by those of groups. Second are issues associated specifically with self-binding where the model is an action by one individual, for example, someone who puts the alarm clock on the other side of the room before going to bed. Whether such self-management techniques are actually desirable requires a surprisingly intricate investigation. It must be explained, for example, why the choices made by an individual at one time are more authentic than those made at another. Finally, because constitutions generally endure beyond the lives of those who make them, the claim that constitutional self-binding is consistent with democracy requires a theory in which the decisions of one group of citizens count as self-binding with respect to their successors.

Much has been said about the last question, the problem of the "dead hand." It becomes serious when there is a real question whether a self-binding limitation introduced into the constitution in the past would enjoy contemporary democratic support. If not, whether the constitution is consistent with democracy depends on the temporal dimension of democracy. According to some approaches, collective political entities are continuous for purposes of establishing political obligation, with the result that people alive today may legitimately be bound by the choices of their predecessors. The question of inter-temporal political obligation was debated with particular vigor around the time of the U.S. Constitution's framing.

The second approach to reconciling constitutionalism and democracy rests on the claim that representative assemblies and other policymakers are apt to reflect the views of their constituents too little, not too much. Where the interests of agents and principals are different, the principals will want to take steps to check the power of their agents. A classic example involves political dissent. Incumbents in office have strong incentives to suppress dissent, for example by limiting the ability of outsiders to report on official misconduct. A strong law of seditious libel is one familiar way of accomplishing that end.

If the people are to rule, however, they must have information about the conduct of their agents and in particular must have information about official misconduct. They thus have interests very different from those of incumbents in office. One way of dealing with this divergence of interests is to take basic questions concerning the operation of the political process out of the hands of the ordinary legislature by resolving those questions in a constitution. Protections for freedom of speech and freedom of the press are central examples.

As regulation of the political process moves beyond basic protection for political dissent it raises questions that must be referred to democratic theory. For example, many people believe that political influence will depend on personal wealth when the most effective means of access to public debate are controlled by private hands. Such disparities of influence are thought by some to be inconsistent with democracy. That conclusion has important implications for the rules governing political debate and hence for the constitutional entrenchment of such rules.

Finally, it is possible to reconcile familiar features of the U.S. Constitution with democracy by taking a nonprocedural view of democracy, one that breaks democracy's usual association with majority, or indeed popular, rule. One might think, for example, that the commitment to popular sovereignty really rests on a commitment to equality in certain substantive respects, so that what is more substantively egalitarian is more democratic. Whether a constitution is democratic, according to this theory, depends on that constitution's consonance with the deeper theory on which democracy itself rests.

This step is especially attractive if one is seeking to justify the substantive limitations in the U.S. Constitution that are now widely thought predominantly to protect political minorities. For example, constitutional antidiscrimination norms often provide such protection. Reconciling such norms with majoritarian democracy has posed a major problem for constitutional theory. If an important component of democracy is truly substantive, however, and if its substance is egalitarian, that problem of theory becomes much easier to solve. Nonprocedural conceptions of democracy, however, are quite controversial.

As the preceding discussion suggests, the potential inconsistency between democracy and an entrenched constitution is not tied to the particular enforcement mechanisms that any constitution may employ. Judicial review is not a necessary condition for that conflict. Nor is it a sufficient condition. A judiciary that somehow was confined to enforcing clear rules in a constitution that was itself democratic would raise no problems with respect to democracy. That would be true no matter how the judges were chosen and no matter how they could be removed.

Judicial review is potentially undemocratic to the extent that it puts the power of choice in the hands of judges. The supposed clash between democracy and judicial review is so prominent in American constitutional debate because it is so common for the judiciary to apply textually unclear constitutional provisions, or to apply principles that the judges have found to be implicit in the Constitution, in ways that appear closely to track the views of the judges as to desirable outcomes. When that happens constitutional adjudication resembles substantive policymaking whereby the judiciary displaces the decisions made by nonjudicial governmental actors. Because of their indirect selection and life tenure, American federal judges are frequently regarded as less accountable to the people than are elected officers.

As a result, judicial review as practiced in America encounters what alexander m. bickel called the counter-majoritarian difficulty. Whether that difficulty is real depends first of all on the extent to which the courts make substantive choices. When they do, the question whether their decisions are likely to be less democratic than those of other governmental decisionmakers is once again one for political science and democratic theory. Leading attempts to solve the countermajoritarian difficulty generally rely on arguments that reconcile the Constitution itself with democracy. Thus Bickel argued that because of the institutional characteristics of the judiciary, substantive judicial choice will in certain important areas reflect the long-term views of the people better than will the output of the more directly electoral process. In a similar vein, John Hart Ely has sought to justify large parts of contemporary constitutional doctrine on the grounds that it enhances democracy by mitigating the agency problems associated with representative legislatures. Implicit in a position like Ely's is a claim concerning the institutional tendencies of courts: that they will in general produce the kinds of doctrines that reinforce, rather than hinder, democracy.

There are commentators who reject all such attempts to reconcile American constitutional practice with democracy and conclude that the conflict is irresolvable. Those who take that position often then say, so much the worse for constitutionalism, or so much the worse for democracy.

John C. Harrison
(2000)

Bibliography

Amar, Akhil R. 1991 The Bill of Rights As a Constitution. Yale Law Journal 100:1131–1210.

Bickel, Alexander M. 1962 The Least Dangerous Branch. Indianapolis, Ind.: Bobbs-Merrill.

Dworkin, Ronald 1996 Freedom's Law. Cambridge, Mass.: Harvard University Press.

Elster, Jon and Slagstad, Rune, eds. 1988 Constitutionalism and Democracy. New York: Cambridge University Press.

Goldwin, Robert A. and Schambra, William A., eds. 1980 How Democratic is the Constitution? Washington, D.C.: American Enterprise Institute for Public Policy Research.

Hart Ely, John 1980 Democracy and Distrust. Cambridge, Mass.: Harvard University Press.