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Constitutionalism and Democracy Political Theory and the American

Constitution
RICHARD BELLAMY and DARIO CASTIGLIONE
British Journal of Political Science / Volume 27 / Issue 04 / October 1997, pp 595 - 618
DOI: 10.1017/S0007123497000288, Published online: 08 September 2000

Link to this article: http://journals.cambridge.org/abstract_S0007123497000288

How to cite this article:
RICHARD BELLAMY and DARIO CASTIGLIONE (1997). Constitutionalism and Democracy Political Theory and the American
Constitution. British Journal of Political Science, 27, pp 595-618 doi:10.1017/S0007123497000288
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 1997 Cambridge University Press

B.J.Pol.S. 27, 595618

Printed in the United Kingdom

Review Article: Constitutionalism and

Democracy Political Theory and the
American Constitution
RICHARD BELLAMY

AND

DARIO CASTIGLIONE*

The term constitutional democracy can be interpreted as either an oxymoron

or a tautology. On the one hand, constitutionalism and democracy can appear
opposed to each other. Whereas the first term refers to restrained and divided
power, the second implies its ultimately unified and unconstrained exercise.1
On the other hand, constitutions can be presented as codifying the rules of the
democratic game, indicating who can vote, how, when and why. Since the
democratic ideal involves more than mere adherence to the formal procedural
devices of democracy, such as majority rule, many constitutionalists argue that
no true democrat could consistently allow a democracy to abolish itself. There
is no contradiction, therefore, in entrenching the rights that are inherent to the
democratic process itself and preventing their abrogation even by democratically elected politicians.2 However, democrats point out that rules constrain as
well as enable. There are many different models of democracy, which define the
democratic rules in a variety of often incompatible ways. If democracy is to
mean people rule, then the Demos should be free to redefine the rules whenever
they want and should not be tied to any given definition. The need to keep open
the possibility of democratic review seems particularly important when one
remembers that the constitutions of many democracies have excluded
significant categories of people from citizenship, notably women and those
without property, and placed severe limits on the exercise of the popular will,
such as the indirect election of representatives. Of course, some exclusions and
limitations are inevitable they are intrinsic to any rule-governed activity. That

* Department of Politics, University of Reading; and Department of Politics, University of Exeter,

respectively. Research for this article was supported by an ESRC research award on Languages and
Principles for a Constitution of Europe (R000221170). We are grateful to Albert Weale, Ian Harden,
Rainer Baubock and Cecile Fabre for their comments on earlier versions.
1
See S. S. Wolin, Collective Identity and Constitutional Power, in The Presence of the Past:
Essays on the State and the Constitution (Baltimore: The John Hopkins University Press, 1989),
p. 8; cf. also the various studies in J. Elster and R. Slagstad, eds, Constitutionalism and Democracy
(Cambridge: Cambridge University Press, 1988). On the restriction of scope that constitutionalism
imposes on democracy, see A. Weale, The Limits of Democracy, in A. Hamlin and P. Pettit, eds,
The Good Polity: Normative Analysis of the State (Oxford: Basil Blackwell, 1989); and R. Ruffilli,
Riforma delle istituzioni e trasformazione della politica, in Istituzioni Societa` Stato, vol. III,
(Bologna: Il Mulino, 1991), pp. 70721.
2
Cf. P. Jones, Rights (London: Macmillan, 1994), pp. 1735.

596

BELLAMY AND CASTIGLIONE

we are not lumbered with the exclusions and limitations of the eighteenth
century, though, is in large part due to successive social and democratic
movements and reforms.
Here we come to a further source of potential complementarity or opposition.
Most constitutions have been democratically enacted and largely derive their
legitimacy from that fact. The great constitutional moments, be they the British
reform acts of the nineteenth and early twentieth centuries, the conventions of
the French and American revolutions, or the constitutional assemblies of the
post-war and post-colonial period, have been exercises of democratic politics
that transformed earlier conceptions of democracy. If constitutions are simply
artefacts of democracy, however, then it seems difficult to accord them any
independent weight. All democratic regimes operate within a framework
inherited from the past, but there seems no compelling reason to prevent them
from updating and rejecting that inheritance. The possibility of a people binding
not only themselves but future generations as well is fraught with apparent
contradictions.3 Yet, constitutionalists reply, the notion of democracy pulling
itself up by its own bootstraps or being able to abolish itself sounds similarly
odd. Surely, they argue, democracy is constituted by values, such as autonomy
and equality, that it does not itself create. If so, then their belief that the
constitutional rules defining democracy cannot be curtailed even by the Demos
itself still holds. And so we come full circle.
In this article, we review two contrasting examples of how contemporary
legal and political philosophers have tried to cut the Gordian knot of
constitutional democracy. Both groups seek to redefine the terms of the
opposition so as to render them compatible: the first by assimilating democracy
into constitutionalism and emphasizing the importance of a framework of rights
and liberties as necessary presuppositions of politics; the second by conceiving
the constitution both as the outcome of a democratic process and as largely
coextensive with the institutions and practices of the political system. Almost
all the authors reviewed are American and we emphasize throughout how their
arguments reflect their particular understanding of the constitutional history of
the United States, with the first group favouring a liberal interpretation and the
second a more republican one.4 Section I surveys and criticizes the standard
constitutionalist arguments for limitations on the workings of democracy.
3

Even supporters of constitutionalism against democracy regard too rigid a constitution as

problematic; see, for instance, A. de Tocqueville, who argued in favour of easy and methodic change:
Recollections: The French Revolution of 1848, quoted in J. Elster, Argomentare e negoziare (Milano:
Anabasi, 1993), p. 23, n. 15. This book consists of Arguing and Bargaining in Two Constituent
Assemblies, Storrs Lectures 1991, which have yet to be published in English.
4
Neither we nor the authors discussed regard these two traditions as either historically or
substantively exclusive. On the contrary, we concur with those writers who have stressed their
complementarity, such as J. Isaac, Republicanism vs. Liberalism: A Reconsideration, History of
Political Thought, 9 (1988), 34977; and S. Holmes, Passions and Constraint: On the Theory of
Liberal Democracy (Chicago: The University of Chicago Press, 1995), p. 5. It is nevertheless possible
to emphasize one more than the other.

Review Article: Constitutionalism and Democracy

597

Sections II and III respectively discuss a prominent example from the first and
second groups of constitutional thought outlined above. Our own position,
developed in the course of the discussion and stated explicitly in Section IV, is
a modification and radicalization of the second view.
I. C O N S T I T U T I O N A L I S M A N D D E M O C R A C Y

The relations between constitutionalism and democracy have been subjected to

analysis in a number of recent articles and collections of essays, most of which
draw largely on the American experience.5 These theorists indicate one way
constitutional limitations may legitimately trump democracy and four other
ways in which they promote it by protecting it against itself.6 First, some
constitutional limits to politics are deemed necessary to protect pre- or
extra-political spheres, which should be immune from interference regardless
of other peoples opinions and interests. The protection of privacy and of basic
human rights unrelated to the political process, including on many accounts
private property, fall into this category. Secondly, constitutions can help solve
collective action problems and guard against weakness of will or myopia on the
part of the people. Cass Sunstein, for example, cites several rights which states
5
Of particular importance for our discussion in this section are Elster and Slagstad, eds,
Constitutionalism and Democracy, especially the essays by Holmes, Ackerman and Sunstein;
W. F. Murphy, Constitutions, Constitutionalism and Democracy, in D. Greenberg, S. N. Katz,
M. B. Oliviero and S. C. Wheatley, eds, Constitutionalism and Democracy: Transitions in the
Contemporary World (New York: Oxford University Press, 1993); N. MacCormick, Constitutionalism and Democracy, in R. Bellamy, ed., Theories and Concepts of Politics (Manchester:
Manchester University Press, 1993); C. R. Sunstein, The Partial Constitution (Cambridge, Mass.:
Harvard University Press, 1993); C. R. Sunstein, Approaching Democracy: A New Legal Order for
Eastern Europe Constitutionalism and Secession, in C. Brown, ed., Political Restructuring in
Europe (London: Routledge, 1994); first published as Constitutionalism and Secession in The
University of Chicago Law Review, 58 (1991), 63370; S. L. Elkin and K. E. Soltan, eds, A New
Constitutionalism: Designing Political Institutions for a Good Society (Chicago: The University of
Chicago Press, 1993), notably the essays by Elkin and Sunstein; J. Waldron, A Right-Based Critique
of Constitutional Rights, Oxford Journal of Legal Studies, 13 (1993), 1851; J. Arthur, Words that
Bind: Judicial Review and the Grounds of Modern Constitutional Theory (Boulder, Colo.: Westview
Press, 1995); R. Dworkin, Constitutionalism and Democracy, European Journal of Philosophy,
3 (1995), 211; J. Habernas, On the Internal Relation Between the Rule of Law and Democracy,
European Journal of Philosophy, 3 (1995), 1221; Holmes, Passions and Constraint; R. Bellamy,
V. Bufacchi and D. Castiglione, eds, Democracy and Constitutional Culture in the Union of Europe
(London: Lothian Foundation Press, 1995); R. Bellamy, ed., Constitutionalism, Democracy and
Sovereignty: American and European Perspectives (Aldershot, Hants.: Avebury, 1996), and R.
Bellamy and D. Castiglione, eds, Constitutionalism in Transformation: European and Theoretical
Perspectives (Oxford: Blackwell, 1996).
6
Jon Elster has rightly noted that from a purely technical point of view written constitutions have
three main functions: (1) to define and protect rights; (2) to establish a map of political powers; and
(3) to fix the procedures for constitutional revision (cf. Constitutionalism in Eastern Europe: An
Introduction, The University of Chicago Law Review, 58 (1991), 44782). We, however, wish to
focus on the conceptual justifications underlying these functions in so far as they concern the
relationship between constitutionalism and democracy.

598

BELLAMY AND CASTIGLIONE

in a federal system might agree to secure on the basis of classical ruleutilitarian

calculations.7 Thirdly, constitutions can facilitate politics by taking explosive
and divisive issues off the agenda. Such pragmatic considerations are held to
support the extra-democratic protection of religious freedom and private
property. Fourthly, they can protect rights that are intrinsic to democracy, such
as freedom of speech and the right to vote. Finally, they may enable politics.
The separation of powers, for example, allows the people, as represented in the
legislature, to subject the executive to democratic control. As such, it fosters
rather than limits popular sovereignty.
A variety of arguments can be given for justifying some or all of these
constitutional constraints. These range from traditional liberal fears of the
tyranny of the majority that suggest a conflict between individual rights and
democracy, such as are expressed in the first constraint mentioned above,
through to proceduralist or more republican accounts that stress those
constraints further down the list as either facilitating or intrinsic to the
democratic process itself. We shall examine each type of constraint in turn,
starting with those most antagonistic to or fearful of democracy and working
through to those most favourable to it. Our case, developed over subsequent
sections, is that only the last type is either warranted or fully consistent with
democratic principles, since it can be applied so as to encompass the concerns
that motivate the others.
The first sort of limitation on the list reflects the standard liberal desire to
demarcate a substantive sphere of individual activity from which all political
interference is excluded on principle.8 This distinction between political and
extra- or pre-political areas is problematic. Although the politicization of all of
life is one of the hallmarks of a totalitarian state, the divide between the public
and private does not come out as neatly as this strategy implies. Power
relationships are not exclusive to the public domain, and politics may well be
needed to curb or correct abuses of power in social and domestic life.9 Far from
politics needing to be excluded from these spheres, it plays an active role in
guaranteeing their integrity. The definition of a private sphere is not a pre- or
extra-political fact, but something that is achieved through politics.
These points have been made with some force in recent years by feminists
concerned with the way too strong a publicprivate distinction has hidden the
domestic subordination and oppression of women from view, treating them as
part of a putative and sacrosanct natural familial order that should be beyond

7
Sunstein, Approaching Democracy, pp. 1618. His examples, drawn from the American
experience, are the Full Faith and Credit Clause and the Commerce Clause.
8
For a recent and succinct restatement of classical constitutionalism, see L. Ferrajoli, Dai diritti
del cittadino ai diritti della persona, in D. Zolo, ed., La Cittadinanza: Appartenenza, identita`, diritti
(Rome: Laterza, 1994), p 284.
9
On the importance of considering the social attacks against personal liberty, cf. E. W.
Bockenforde, Recht, Staat, Freiheit (Frankfurt am Main: Suhrkamp, 1991), transl. State, Society and
Liberty (Oxford: Berg Publishers, 1991), in particular chap. 10.

Review Article: Constitutionalism and Democracy

599

the reach of the law or politics.10 Their arguments echo earlier complaints about
the injustices deriving from certain forms of the constitutional privatization of
property. During the so-called Lochner era for example,11 the United States
Supreme Court ruled out not just redistributive measures but also minimum
wage and maximum hours legislation as unconstitutional. As with new thinking
on the domestic situation of women, erosion of the inviolability of private
property in part turned on recognition that market exchanges and the resulting
distribution of resources were not natural but social processes that were to a large
extent politically determined. Consequently, they were legitimate matters of
government action rather than unjustified incursions into pre-political fundamental rights although the contrary view remains disturbingly familiar.12
A similar point can be made with regard to the other main liberal reason for
limiting government: namely, the fear that elected representatives develop
interests of their own that lead them to encroach upon those of the people they
are pledged to protect. Here too it may be more appropriate to limit politics with
politics rather than to circumscribe what politics can do, as for example public
choice constitutionalists propose. The separation of powers can be understood
in these terms. Bicameral legislatures and the separate election of the executive
provide standard instances of how democracy can place constraints on itself as
part of a continuing process of self-limitation that, in contrast to strategies of
principled exclusion, allow some flexibility in the way those limits are deployed
and interpreted.
The second set of constitutional constraints are meant to promote politics by
protecting it from various types of irrational behaviour. They are typically
presented as the product of a pre-commitment on the part of the people
themselves in which the Demos constrains itself.13 Consequently, they are said
to involve no direct conflict with democratic principles. The belief that members
of the populace ought to bind themselves in rational moments against errors they
might make in less lucid times is supposedly analogous to personal forms of
self-restraint, such as an alcoholics decision to sign the pledge. As such, they
are presented as examples of self-governance and autonomy, rather than as an
abridgement of our collective freedom. Yet this analogy does not hold. Of

10

C. Pateman, Feminist Critiques of the Public/Private Dichotomy, in A. Phillips, ed., Feminism

and Equality (Oxford: Blackwell, 1987).
11
Lochner v. New York (1905) was the most famous case of this period, and involved the Supreme
Court striking down a maximum-hours law limiting bakers to a sixty-hour week.
12
In addition to the kind of objections we have just made in the main text, the defence of property
rights is often flawed because based on a confusion between the universal and the singular aspects
of the right itself. The former establish the right to own property in general as part of the autonomy
of the individual (but this does not sanction the particular form in which property has to be enjoyed);
while the latter establish the particular form that the right to own property can take in a society, so
defining the exercise of the right to property of a particular individual or group by excluding others.
Cf. Weale, Limits, pp. 423; and Ferrajoli, Dai diritti, pp. 26872.
13
Cf S. Holmes, Precommitment and the Paradox of Democracy, in Elster and Slagstad, eds,
Constitutionalism and Democracy, chap. 7.

600

BELLAMY AND CASTIGLIONE

course, there is a vast literature that treats the operation of the mass within
democratic societies as prone to irrational behaviour, and fears the tyranny of
the majority on just these grounds. But this possibility does not warrant a
wholesale ban on any discussion of either the rights and rules of the democratic
game or of those institutions that protect essential spheres outside it. Indeed, the
incommensurability and non-compossibility of basic liberties lays them open
to reasonable disagreements about how they are to be conceived and weighed,
both with regard to each other and in clashes with other values and interests.
Such disagreements are neither emotive nor unreasoned. Pre-commitment in
these areas cannot be compared to the self-binding of the confirmed alcoholic.
Rather, it resembles an orthodox Catholic, say, ordering his friends to keep all
heretical texts from him lest he fall into doctrinal error a far less edifying
model.14
There is also the problem that the people doing the binding may be different
to those that are bound. Thomas Jefferson raised this issue in terms of the
dubious legitimacy of the living being bound by the dead, a difficulty which
bedevils all contractarian theories of political obligation that appeal to consent.15
Surely, he claimed, the collective autonomy of the Demos required that each
generation is as independent of the one preceding, as that was of all which had
gone before, possessing like them, a right to choose for itself the form of
government it believes most promotive of its happiness. 16 As we shall see in
Section III when discussing Ackermans neo-Jeffersonian scheme, the main
objections to this thesis either invoke traditional liberal concerns to do with the
need to protect certain individual rights of the sort we examined above, or
involve practical or pragmatic worries related to its workability and potentially
disruptive effects. Either way, pre-commitment no longer offers the main
justification.
Pragmatic considerations predominate within the third class of constraint.
These involve burying sensitive or contentious issues likely to give rise to
irreconcilable differences that threaten to make democracy unworkable.
Religious disputes, for example, might factionalize the system and prevent
disinterested deliberation or mutual accommodation in other areas, or even lead
to civil strife. Removing such subjects from public debate is defended not to
protect pre-political rights but to prevent democracy from tearing itself apart or
fruitlessly diverting energy and resources into tackling irresolvable rather than
soluble problems. Such gag-rules are likened to the avoidance of contentious
topics between neighbours who disagree passionately about politics but feed

14

Waldron, A Rights-Based Critique, in particular pp. 469.

Holmes, Precommitment, offers a brief history of the doctrine, noting the importance of Paine
and Locke and also the standard criticisms of Hume, Madison and others. See too MacCormick,
Constitutionalism and Democracy, and Arthur, Words that Bind, pp. 203, 2432.
16
T. Jefferson, Letter to Samuel Kercheval, 12 July 1816, in M. D. Peterson, ed., The Portable
Thomas Jefferson (New York: Viking Press, 1975), p. 560.
15

Review Article: Constitutionalism and Democracy

601

each others cats and water the plants when one of them goes on holiday.17
Silence in certain areas helps keep the peace and fosters co-operation in other
matters.
As with the pre-commitment thesis, the analogy from the private and personal
domain does not transfer fully to the political and collective sphere. My
neighbours sexism may be immaterial to his ability as a cat feeder and mower
of lawns, for example, but highly pertinent to his views on issues of public policy
and my reaction to them. Like the other constitutional constraints examined so
far, there is a danger that isolating a matter from public scrutiny serves simply
to entrench an unjust status quo and gives tacit support to one of the sides in
the debate. In such cases, removal is as likely to undermine democracy as to
reinforce it. If redress cannot be obtained in principle through regular political
channels, then aggrieved parties will be tempted to resort to more drastic
extrapolitical remedies. Indeed, they may well be justified in doing so since the
democratic credentials of a system that prevents discussion of the matters its
citizens feel most passionately about are dubious to say the least.18
The fourth kind of constraint promises a closer fit with democracy. According
to this line of thinking, whilst substantive issues ought to be decided by the
democratic process, constitutions have a role to play in protecting the procedural
rules of democracy. Once again, this thesis has a distinguished American
pedigree,19 although similar arguments of course have appeared in other
cultures. For Chief Justice Earl Warren, the presumption of constitutionality
[was] based on the assumption that the institutions of state government are
structured so as to represent fairly all the people.20 On this basis, the Warren
Court from the mid-1960s onwards reviewed a number of State electoral laws
and districting arrangements with a view to ensuring they met this standard. The
difficulty is that matters of participation and process are as contested as most
other political issues. People will disagree about how fairness ought to be
interpreted and the degree to which it ought to be balanced against other values.
Thus, as in Britain, there is an American debate about the pros and cons of
proportional representation, the legitimacy of special electoral quotas for
particular disadvantaged groups, the relative merits of functional as against
territorial representation and the like.21 In many respects, these are not simply
arguments about process but also about substance, since one factor in almost
17

Cf. S. Holmes, Gag Rules or the Politics of Omission, in Elster and Slagstad, eds,
Constitutionalism and Democracy.
18
C. R. Sunstein, Constitutions and Democracies: An Epilogue, in Elster and Slagstand, eds,
Constitutionalism and Democracy, pp. 33940.
19
The key statement here is fn. 4 of United States v. Carolene Products of 1938. For a clear
discussion of the issues, see Arthur, Words that Bind, pp. 4852. The fullest philosophical defence
of the proceduralist argument is J. H. Ely, Democracy and Distrust: A Theory of Judicial Review
(Cambridge, Mass.: Harvard University Press, 1980).
20
Quoted in Arthur, Words that Bind, p. 50.
21
See, for example, D. J. Amy, Real Choices/New Voices: The Case for Proportional
Representation Elections in the United States (New York: Columbia University Press, 1993); and

602

BELLAMY AND CASTIGLIONE

any evaluation of a procedure is the type of outcome it leads to. To impose a

particular view of these issues as the most fair through judicial review of the
Constitution would be as potentially damaging to democracy as the other
limitations we have so far discussed. Even the entrenchment of procedural
democratic rights, therefore, can be regarded as undermining the autonomy and
responsibility for decision making that define democratic citizenship and link
the individual to the polis.
Similar criticisms might be thought applicable to our final set of constitutional
mechanisms, such as the separation of powers, that are designed to enable
politics. However, there is an important difference between the previous four
and this last category. The former offer a normative framework for politics. In
contrast, these refer to matters of institutional design through which principles
may be debated and either accepted or rejected. As such, this approach harks
back to the ancient conception of a constitution as describing the characteristics
and form of the body politic, as opposed to the more modern view of
constitutions as embodying a pre-political higher law.22 Indeed, a number of
recent commentators have stressed that the American Constitution, at least as
interpreted through the Federalist Papers, ought to be understood in these
terms.23 Its key features are not the Bill of Rights and judicial review by the
Supreme Court, which were absent from the original scheme, but the federalist
structure, the various forms of representation, and the mutual checking of
President, Congress and Senate. It was through these institutional means that
minority interests were to be protected and deliberation on the common good
promoted, rather than via the constitutional entrenchment of rights. Whereas the
earlier constraints derive their rationale from a largely instrumental conception
of politics which equates democracy with a crude majoritarianism,24 this view
sees politics in more deliberative terms and seeks to encourage policy makers
to consider minority rights and interests when making their decisions.
Of course, to the extent that these institutional devices foster a particular
quality of politics they cannot be regarded as totally process orientated. There
is nevertheless a difference between declaring certain issues as beyond political
debate as a matter of principle and an approach that provides procedures that
ensure that the sorts of concern lying behind such exclusions are taken into

(Fnote continued)

L. Gauinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (New
York: Free Press, 1994).
22
See C. H. McIlwain, Constitutionalism Ancient and Modern (Ithaca, NY: Cornell University
Press, 1940), chap. 2.
23
For example, B. Ackerman, We the People: Foundations (Cambridge, Mass.: Harvard
University Press, 1991), chap. 7; Sunstein, Partial Constitution, chap. 1; R. Bellamy, The Political
Form of the Constitution: The Separation of Powers, Rights and Representative Democracy and S.
Elkin, Madison and After: The American Model of Political Constitution, both in Bellamy and
Castiglione, eds, Constitutionalism in Transformation.
24
For example, Dworkin, Constitutionalism and Democracy, pp. 25.

Review Article: Constitutionalism and Democracy

603

account and accorded especial weight. Moreover, there is no circularity in

devising a set of procedures to debate differences over procedures, so that this
argument can escape the criticisms we made of procedural rights above. For the
adoption of a given procedural process does not necessarily bias the decision
in such a discussion in its favour, as the ability of organizations to reform
themselves amply testifies.25
I I. T H E C O N S T I T U T I O N O F P O L I T I C S : J O H N R A W L S S P O L I T I C A L
LIBERALISM

John Rawlss Political Liberalism offers a novel defence of the liberal

arguments for constitutional democracy examined above.26 He contends that
within a pluralist society, the stability, fairness and legitimacy of the political
system requires the separation of the public from the private sphere, and the
ring-fencing of core democratic values. Constitutions should not only prevent
democracy interfering with the private beliefs and interests of individuals, they
also must act to hinder personal or self-interested considerations having an
undue influence on democratic decisions. As an additional safeguard, they
should defend democracy from itself by removing the rights and liberties at the
heart of the democratic process from the political agenda by placing their
interpretation and protection in the hands of a constitutional court.
Rawlss theory derives from a fairly standard liberal interpretation of the
American Constitution that gives pride of place to the Bill of Rights and the
Supreme Courts power of judicial review.27 However, the motivation behind
his triple restriction of the political sphere is not the promotion of the traditional
liberal values of autonomy, individuality and rationality. He aims for a political
conception of justice that is freestanding.28 Rawls maintains that the prime
source of tension in modern societies is the conflict between opposed ideological
and cultural views. He contends that such disputes are rarely rationally
resolvable due to what he calls the burdens of judgement and the difficulties
of identifying and interpreting relevant evidence in ethical argument.29 His
constitutional scheme avoids this problem because the isolation of core political
principles supposedly removes their dependence on any given extra-political set
of commitments, liberal or otherwise, and renders them acceptable to people
holding a wide range of beliefs. By being obliged to abstract from their
25

Waldron, A Rights-Based Critique, p. 40.

Cf J. Rawls, Political Liberalism (New York: Columbia University Press, 1993), in particular
Lectures 1, 4, 6 and 8. The main ideas were expressed in two earlier articles: Justice as Fairness:
Political not Metaphysical, Philosophy and Public Affairs, 14 (1985), 22351; and The Idea of an
Overlapping Consensus, Oxford Journal of Legal Studies, 7 (1987), 125.
27
This feature is particularly evident in Lectures 6 and 8 of Rawls, Political Liberalism, for
example pp. 23140 and pp. 34063, which consist of detailed accounts of the Supreme Courts
function and a discussion of certain test cases with regard to free speech and equal opportunities.
28
Rawls, Political Liberalism, p. 10.
29
Rawls, Political Liberalism, pp. 548.
26

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BELLAMY AND CASTIGLIONE

distinctive metaphysical, ethical and epistemological allegiances, Rawls

believes citizens can arrive at an overlapping consensus on the role and
basis of politics. Such agreement makes peaceful social co-existence and cooperation between a plurality of groups and individuals possible and guarantees
their mutual toleration.30
Rawlss theory suffers from many of the failings we identified with the liberal
constitutionalist position in the last section. We shall argue that the proposed
insulation of the political sphere from peoples prime concerns is not only
impossible but also undesirable. It prevents politics from performing its crucial
function of reconciling differences through negotiation and debate, whilst
risking excluding important minority issues from the political agenda and
thereby delegitimizing the public sphere the very problem Rawls seeks to
avoid.
Rawlss theory of an overlapping consensus on political values rests on
claims of both a socio-historical nature and of a more philosophical kind.
Sometimes, Rawls argues he is only articulating the ethos of the liberal
democratic tradition as it has developed since the wars of religion of the
sixteenth and seventeenth centuries.31 Originating as a modus vivendi thanks to
a fortuitous equitable balance of power between competing religious groups,
liberal democratic values have gradually become part of the unconscious
convictions of most citizens within Western societies. The philosophers task
is to bring these principles and their underlying rationale to light so that they
may be adequately protected. The original position should not be interpreted
as an objective point of view for judging the justice of all possible societies and
moralities sub specie aeternitatis, as he appeared sometimes to argue in A
Theory of Justice. Instead, it serves as a device of representation that models
the basic intuitive ideas at the heart of the liberal democratic tradition and brings
them into some degree of reflective equilibrium.32
We find this argument deeply unsatisfactory. To link the foundations of
democracy to the contingencies of a particular historical tradition risks falling
into relativism. Such an argument tells us neither which democratic tradition we
ought to opt for,33 and as we observed above many past democracies have been
singularly restricted, nor why any one of them is to be regarded as superior to
other possible forms of government.34 By naturalizing the formation of an
30

Rawls, Political Liberalism, pp. 914.

Rawls, Political Liberalism, Introduction.
32
Rawls, Political Liberalism, pp. 228.
33
Cf. Rawls, Political Liberalism, pp. 2345.
34
In his review of Political Liberalism, Ackerman emphasizes the danger of relativism implicit
in Rawlss new position (cf. B. Ackerman, Political Liberalisms, Journal of Philosophy, 91 (1994),
36486). He argues that Rawlss political liberalism is worryingly parasitic upon liberal practice
(p. 375), and he tries to suggest that appeals to the public political culture of present democracies
should be distinguished from a discourse based on the idea of an overlapping consensus (pp. 3767).
He also argues in favour of a constitutive form of public reason (p. 368), one on which citizens
of the liberal state can construct a new dimension to their social identity instead of stripping
31

Review Article: Constitutionalism and Democracy

605

overlapping consensus in democratic societies, Rawls seems to offer a

Panglossian view of the liberal constitution as though it could be founded on
no lasting wrong, and, more to the point, as though no regress from it were
possible. Moreover, there is a certain incoherence in this argument even in its
own terms. If citizens really do act on liberal democratic principles already, then,
as conservative and communitarian critics of liberalism point out, articulating
the theoretical basis of this practice risks producing a rationalistic and limited
abridgment that fails to do justice to its true complexity and so potentially
undermines it.35 Surely it is because Rawls believes this consensus can no longer
be assumed that he feels obliged to defend it.
Not surprisingly, Rawls ends up invoking stronger arguments of a more
philosophical character. Democracy, he contends, rests on a distinctive
conception of the citizen as possessing two moral powers: a capacity to form,
revise and pursue a conception of the good, and a sense of justice.36 This model
of agency is essential to his claim that all citizens can identify with his two
principles and, most importantly, makes it possible for them to distinguish their
public from their private persona. Unfortunately for his project, such a
perspective will only prove acceptable to a liberal who conceives society in
terms of a collection of free and equal individuals pursuing autonomously
chosen goals. Such a person already holds Rawlss political conception of
citizenship in his or her private life. Yet Rawls concedes that there are many
people who have affections, devotions, and loyalties that they believe they
would not, indeed could and should not, stand apart from and evaluate
objectively.37 Their religious, moral or other convictions are intrinsic to their
personal identity. In contrast to the liberal, Rawlss view of citizenship is not
costless for them. It challenges their integrity and potentially threatens certain
of their vital interests. For example, demands for the public funding of religious
schools appear ruled out and so is religious or other non-political reasoning
concerning morality when debating matters such as capital punishment or
abortion. In such cases, however, non-liberals might feel primarily bound by a
non-political conception of justice stemming from God or some other source.

(Fnote continued)

themselves of their other attachments and obligations in order to enter the public space (pp. 36971).
Michael Sandel (cf. Review of Political Liberalism, Harvard Law Review, 107 (1994), 176594)
suggests that it is possible to interpret Rawlss revised position as thoroughly historicist and
antiuniversalist (Sandel quotes here from Richard Rorty), so that in this view social policy needs
no more authority than successful accommodation amongst individuals (p. 1175). Sandel, however,
opts for a different interpretation (see below pp. 178994). See too R. Bellamy and M. Hollis,
Liberal Justice: Political and Metaphysical, Philosophical Quarterly, 45 (1995), 119, at p. 14.
35
The locus classicus for this argument is probably E. Burke, Reflections on the Revolution in
France (Oxford: Oxford University Press, 1993), for example, pp. 335.
36
Rawls, Political Liberalism, p. 19.
37
Rawls, Political Liberalism, pp. 301.

606

BELLAMY AND CASTIGLIONE

Why should they feel obliged to put to one side the truth as they see it and adopt
a somewhat alien (and alienating) Rawlsian political language?
Rawls has no satisfactory answer to this question. At times, he stresses largely
pragmatic reasons stemming from an interest in stability.38 However, this is
essentially an empirical claim of dubious validity, as we saw when discussing
gag-rules in the last section. It assumes that people will always prefer a quiet
life to protesting against what, from their private point of view, is an injustice
or a lack of concern. Since there is plenty of evidence to suggest people are not
always so passive, such exclusions may well have the opposite effect of
stimulating protests that go outside official political channels. The only
alternative, however, appears to be for him to go on the attack and argue for the
superiority or truth of the liberal position. However, Rawls himself signals the
prime danger of this strategy, since he doubts whether a comprehensive
liberalism could ever gain widespread acceptance except with the oppressive
use of state power.39
Rawlss difficulties stem in great part from his having cut himself off from
the resources of politics. In spite of its designation as a political conception of
justice, Rawls shows a decided antipathy to most forms of democratic decision
making. He insists that the basic liberties, which on his view underpin
democracy and provide the language of political argument, must themselves be
no longer regarded as appropriate subjects for political decision by majority or
other plurality voting They are part of the public charter of a constitutional
regime and not a suitable topic for ongoing public debate and legislation.40 Like
the proceduralist thesis criticized above, this argument overlooks the degree to
which the political sphere is itself a disputed matter.
Rawls admits that conflicts between the different liberties occasionally arise.
However, he believes that a given liberty can only be restricted by a different
liberty, and the general intention must always be to promote to the full the overall
scheme.41 Moreover, he thinks that such balancing should only be done by
judges in a constitutional court. The basic liberties, though, may prove not only
non-compossible but also incommensurable. The way we characterize any
given liberty and identify the constraints that determine its presence or absence
depends on normative and empirical judgements that he admits the burdens of
judgement make subject to reasonable disagreement. Such factors not only
undermine the neutral balancing of liberties, they may even result in a failure
to agree whether a conflict of liberties exists or not. Needless to say, the problem
of on-balance judgements becomes even more intractable when liberty has to
be weighed against other values because the exercise of freedom itself causes
harm or suffering. These sorts of difficulties lie at the heart of some of the most
38

See especially Rawls, Political Liberalism, p. xxv, where he describes stability rather than the
highest good as the defining issue of political justice.
39
Rawls, Political Liberalism, p. 146.
40
Rawls, Political Liberalism, p. 151, n. 16.
41
Rawls, Political Liberalism, Lecture 8.

Review Article: Constitutionalism and Democracy

607

heated contemporary American constitutional debates, from disagreements

over the legitimacy of affirmative action or welfare to debates about the
character and range of free speech raised by issues such as pornography and
official secrets. In these sorts of cases, it will be impossible to weigh up the basic
liberties involved, and in some cases balance them against other values, without
referring to our comprehensive moral commitments.42
These considerations substantially weaken the case for restricting the debate
of constitutional and other principled matters to the Supreme Court. Rawlss
reasons for so doing appear once again to be largely pragmatic. Judges legal
training and life tenure supposedly render them relatively immune to nonpolitical influences compared with politicians, and so they are more inclined
to reason solely in terms of public values when constitutional fundamentals are
at stake.43 However, we have called into question the theoretical possibility of
isolating these values in this way. If this criticism is correct, then it will be
impossible for judges to resolve conflicts between the basic liberties under
discussion in a pure manner simply on the basis of an interpretation of higher
constitutional law. Rather, they will end up drawing on their own more
comprehensive, and often partial, background values, opinions, prejudices and
interests.44 As a result, the practical consequences of such judicial foreclosure
may be quite other than those anticipated by Rawls.
Once the consequences of a decision for the interests and values of various
groups are recognized as relevant to how we understand and evaluate the
principles in play, then the unrepresentativeness of the judiciary and its
unresponsiveness to social influences will become drawbacks instead of
advantages. The very political isolation that commends the judiciary to Rawls
also renders them rather poor at weighing up how policies are likely to affect
society at large. Legal reasoning is often too circumscribed and their own
experience too narrow to take them into account. Cass Sunstein has pointed out,
for example, how the traditional legal model of compensatory justice is ill-suited
to understanding the problem of discrimination since it does not usually consist
of a well-defined set of discriminatory acts by identifiable persons against
particular victims. He also notes how resolving such problems requires quite
complex social reforms that courts are badly placed to provide or to motivate
support for. He cites busing policy as a case where legal intervention failed to
42

This criticism is developed more fully in R. Bellamy, Pluralism, Liberal Constitutionalism and
Democracy: A Critique of John Rawlss (Meta)Political Liberalism, in J. Meadowcroft, ed., The
Liberal Political Tradition: Contemporary Reappraisals (Cheltenham: Edward Elgar, 1996).
43
Rawls, Political Liberalism, p. 240. This position is put forward most forcefully by R. Dworkin,
The Forum of Principle, in A Matter of Principle (Cambridge, Mass.: Harvard University Press,
1985).
44
For a pathbreaking, if occasionally overstated, analysis of this phenomenon amongst British
judges, see J. G. A. Griffith, The Politics of the Judiciary (Glasgow: Fontana, 1981). Parallel
observations so far as American courts are concerned have fuelled the Critical Legal Studies
movement; for example, M. Tushnet, Red, White and Blue: A Critical Analysis of Constitutional Law
(Cambridge, Mass.: Harvard University Press, 1988).

608

BELLAMY AND CASTIGLIONE

consider the knock on effects for other related forms of public expenditure, such
as medical and welfare programmes, or potential popular resentment. Politics,
in contrast, provides a better forum for getting a rounded view of an issue and
promoting popular support for the policies that emerge precisely because it is
open to the views and concerns of the people at large. Moreover, political
deliberation need not be purely self-interested. The New Deal, and the civil
rights and environmental movements offer well-known instances of principled
politics that have probably done far more in effecting social change than any
isolated court decision. Indeed, Sunstein argues that many landmark Supreme
Court decisions, such as Brown v. Board of Education and Roe v. Wade, have
been surprisingly ineffective and that the changes with which they are
commonly associated have come from independent legislative and executive
action.45
Rawlss political liberalism overlooks the role of politics. Convincing people
of the merits of a given policy and justifying a given exclusion involves moral
argument and hence political debate. An overlapping consensus has to be
politically constructed by exploring what can be resolved through political
deliberation and what must remain matters of reasonable disagreement,
concerning which we either agree to disagree or as far as possible attempt to find
some acceptable compromise solution. As Bernard Crick has remarked:
Diverse groups hold together because they practise politics not because they agree
about fundamentals, or some such concept too vague, too personal, or too divine
ever to do the job of politics for it. The moral consensus of a free state is not
something mysteriously prior to or above politics: it is the activity (the civilizing
activity) of politics itself.46

Of course, different forms of conflict exist and some may prove more intractable
and divisive than others. But, as we hope to show in the next two sections,
politics may prove capable of overcoming these difficulties.
I I I. C O N S T I T U T I O N A L P O L I T I C S : B R U C E A C K E R M A N S W E T H E
PEOPLE

Bruce Ackermans We the People provides one possible account of how to

establish an overlapping consensus on the basic structure of society by
appealing to the resources of democratic politics. He argues that we must
distinguish between normal politics, which occurs under settled constitutional
systems, and constitutional politics, which arises in exceptional times and
places the whole system of government in discussion. He believes that this

45

Sunstein, Partial Constitution, pp. 1459.

B. Crick, In Defence of Politics (Harmondsworth, Middx: Penguin, 1962), p. 24; cf. also
I. Hampsher-Monk, The Individualist Premise and the Practice of Politics, in I. Hampsher-Monk,
ed., Defending Politics (London and New York: British Academic Press, St. Martins Press, 1993).
46

Review Article: Constitutionalism and Democracy

609

dualist scheme47 cuts through the vicious circularity that surrounds the
relationship between constitutionalism and democracy.
Ackerman contends that the constitutionalists objections to simple majoritarianism are valid with respect to normal politics but do not hold for
constitutional politics. During normal politics, people do not speak with a
single voice but are divided into different ideological factions and interest
groups. At such times, the democratic process is best captured by an economic
model which characterizes voters as instrumental agents bent on maximizing
their own preferences. Consequently, fear of a tyrannous majority during such
periods is fully justified: judicial review, divided representation and Madisonian
checks and balances are needed to curb such tendencies as much as possible.48
Constitutional politics, in contrast, only takes place when some national crisis
manages to unite the people and leads them to transcend their own particular
interests and consider the common good. On such occasions, political decision
making is deliberative rather than economic in nature. The aggregating and
trading-off of group interests gives way to debate on the basis of publically
justifiable reasons. The aim is no longer the will of all so much as the general
will. As a result, objections to the will of the majority lose much of their force.
Instead of representing the aggregate of the largest number of personal
preferences, which then gets imposed on others who wanted something quite
different, a deliberative majority reflects a general opinion on the rules and
principles necessary to benefit everyone. In this latter case, voters should already
have taken the rights of other individuals into account when making their
decision and, when necessary, weighed them as best they could.49
Ackerman identifies three instances of constitutional politics in the United
States the Founding, Reconstruction and the New Deal. These constitutional
moments established a framework for normal politics that the Supreme Court
could then defend from populist incursions until such time as we the people
reconvened to reform it.50 This thesis aims to synthesize three different views
of constitutionalism.51 The concerns of rights foundationalists can be catered
for because dualist democracy gives rights special protection by making them
only reformable in the context of constitutional politics. Between times they can
be upheld by judicial review. He also hopes to accommodate the views of
monist democrats, who believe that the will of the people should always
prevail. These theorists make the mistake of believing that the popular will is
expressed in the ordinary law-making of normal politics. In fact, at such times
personal interests tend to supervene over the national interest, so that the
everyday legislation of governments reflects at best majority preferences rather
than the common good. However, the constraints imposed on majorities by the
47
48
49
50
51

Ackerman,
Ackerman,
Ackerman,
Ackerman,
Ackerman,

We
We
We
We
We

the
the
the
the
the

People,
People,
People,
People,
People,

pp.
pp.
pp.
pp.
pp.

333.
1813; 18695.
26694.
58104.
724.

610

BELLAMY AND CASTIGLIONE

constitution and its judicial guardians result from constitutional politics and so
do genuinely mirror the collective voice of the people. In bowing to them,
therefore, governments submit not to certain elites or imposed norms but to the
considered will of the Demos. Finally, Ackerman also tries to take the approach
of historicist interpreters of the constitution on board. This group divides into
roughly two camps: those who argue that judicial interpretation should
concentrate on divining the original intent of the founders, and those who regard
the constitution as an evolving document that judges need to update to reflect
current conditions. Ackerman merges the two within his dualist perspective. The
role of Supreme Court judges must be to uphold the intentions of the people as
expressed at the last relevant moment of constitutional politics. Since the
constitution has never been entirely rewritten, this will almost always involve
them in a complex process of integrating various elements from each of the three
moments. The Founders intentions remain important, but have been modified
by later new beginnings. The constitution does evolve, but not as a result of
judicial interpretation. It would be quite illegitimate for judges to take on the
responsibility of updating it. Rather, the judges role is to force the people to
deliberate on whether they think change is necessary or not by upholding the
status quo until they are sufficiently minded to do so.
Recognizing the constitutional role of politics involves a break with
traditional views of constitution-making processes and their self-legitimizing
qualities. Liberals and republicans part company at this point. The former insist,
as Rawls puts it, that the idea of right and just constitutions and basic laws
is always ascertained by the most reasonable political conception of justice
and not by the result of an actual political process.52 The latter subscribe
to the opposite view, providing an account of periodical constitutional precommitments as an actual, as opposed to a hypothetical, event.
A liberal might still object that since constitutions aim to embody universal
human rights or rights intrinsic to the procedures of democracy, constitutional
politics is at best superfluous, at worst pernicious.53 Given that such rights can
be justified, their democratic legitimation adds little or nothing to them whilst
risking placing them in jeopardy. This division reproduces the aforementioned
debate between Madison and Jefferson over the utility of periodic constitutional
conventions.54 Whereas Jefferson thought they were required to avoid any living
generation being bound by the decision of the dead,55 Madison believed they
52

Rawls, Political Liberalism, p. 233.

One of the objections advanced against Ackermans distinction between normal and
constitutional politics is that it does not solve the dualism between reason and consent which is at
the centre of Ackermans own analysis, cf. M. and W. A. Galston, Reason, Consent, and the US
Constitution: Bruce Ackermans We the People, Ethics, 104 (1994), 44666. Don Herzog has
objected that Ackermans dualism confuses three different questions: the subject, the manner and
the object of political action: Democratic Credentials, Ethics, 104 (1994), 46779.
54
Cf. Holmes, Precommitment, pp. 21521.
55
Jefferson, Letter to James Madison, 6 September 1789, The Portable Thomas Jefferson,
pp. 44451.
53

Review Article: Constitutionalism and Democracy

611

were unnecessary and potentially destabilizing.56 From a Madisonian perspective, Ackermans theory comes close to falling into the Jeffersonian error. If you
get matters right the first time, then there should be no need for any future
constitutional politics. Next time you might make a mistake.
Although the story Ackerman tells has a decidedly Whiggish tone, with each
constitutional moment leading in a progressive and more egalitarian direction,
the ghost of a potential Reagan revolution haunts the pages of his book.57 Reagan
would have radically shifted the constitution in a libertarian direction that
Ackerman clearly would have deplored. Yet he appears to accept that had
Reagan mobilized popular support for a counter New Deal, then the people
would have spoken and he would have had to live with the result. Similarly, he
regards as great wrongs the acceptance of slavery and the exclusion of women
from the franchise at the Founding, the radical interpretation of freedom of
contract so as to undermine all attempts at employment legislation during
Reconstruction, and the absence of an adequate welfare state even after the New
Deal. In his view, these policies were never acceptable. How then can he endorse
the constitutional politics that gave rise to these injustices?
Ackermans response to such criticisms has been disappointing.58 Sometimes
he seems to accept them and say that he has simply been arguing that historically
the American constitution has developed in this way. He even advocates the
irrevocable entrenchment59 of social and economic rights alongside civil and
political rights as an ideal conclusion to the long history of American
constitution making.60 This historical gambit raises a further set of objections,
however. If dualist democracy is a peculiarly American institution,61
56
J. Madison, Letter to T. Jefferson, 4 February 1790, in M. Meyers, ed., The Mind of the Founder:
Sources of the Political Thought of James Madison (Hanover, Pa.: Brandeis University Press, 1981),
pp. 1769.
57
Ackerman, We the People, pp. 506; on Reaganism as an attempt at a counterrevolution against
the legacy of the New Deal, cf. Wolin, Collective Identity.
58
Cf. B. Ackerman, Rooted Cosmopolitanism, Ethics, 104 (1994), 51635.
59
There are two different senses in which one can understand the entrenchment of rights: in the
constitutional sense of rights which have special protection against normal procedures of legislation
and policy making (this is the meaning that Ackerman gives to all constitutional rights in dualist
democracies, where absolute entrenchment can only be conceived as a temporary measure); and in
the supra-constitutional sense of irrevocable entrenchment, revocable only by a complete subversion
of the constitutional regime.
60
Ackerman, Rooted Cosmopolitanism, pp. 5335; cf. also We the People, pp. 31922. This
conclusion is in line with the standard cosmopolitan view of constitutionalism according to which
if certain fundamental rights are established to defend the individual against the majority, there is
no particular reason why a qualified majority (in either quantitative or qualitative terms) should
be any different from a simple majority (for a statement of this position, cf. Ferrajoli, Dai diritti,
p. 285). Indeed, in his review of Political Liberalism, Ackerman seems to adopt a much more
standardly liberal position, cf. Political Liberalisms, pp. 36486. The kind of distinctions which
in this piece Ackerman makes between his and Rawlss liberalism do not reflect the one identified
in our article, which is mainly based on Ackermans position as put forward in We the People.
61
In fact, the uniqueness argument is easily refuted by considering the whole debate on the
relationship between constituent power and constituted powers in France since the Revolution. See

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BELLAMY AND CASTIGLIONE

then it is unclear that any other nation either could or should adopt it, though
Ackerman proposes they ought to in his The Future of Liberal Revolution.62 Nor
does an appeal to history necessarily offer any compelling reason for Americans
to continue doing so. After all, the fact that something has functioned well in
the past may be no more than chance and might even suggest that we need to
discard it if the circumstances of the future turn out to be radically different from
those that obtained heretofor.
At other times, he offers a more pragmatic defence of his theory.
Constitutional moments, he suggests, are in the nature of things. In the past those
who have entrenched certain constitutional provisions have made grave
mistakes, in the American case condoning slavery, the oppression of women and
social inequalities. Given human fallibility, similar errors are likely to occur in
the future. Our best defence against oppression on the one hand and anarchic
revolution on the other is to regularize the conditions and forms under which
periodic constitutional review can take place.63 So stated, this line of argument
will not do. Such a negative reason does not seem sufficient to ground the
positive picture of public reason which Ackerman associates with higher
law-making.64 One could equally say that the chance of periodic review provides
the opportunity for even greater errors to be made in the future.
I V. P O L I T I C A L C O N S T I T U T I O N A L I S M

Most of the criticisms that have been levelled at Ackerman assume that an
overlapping consensus on certain constitutional principles can be justified a
priori. However, the earlier analysis of Rawls raised two difficulties with this
assumption associated with the burdens of judgement. First, the values and
theories upon which principles of justice and rights can be based are often
incommensurable. Consequently, they occasionally produce not only different
rankings of basic rights but also conceivably very diverse interpretations of what
justice requires. Secondly, even within an agreed scheme of values, rights may
clash. This problem of non-compossibility, however, will become even more
intractable when a political community includes individuals holding incommensurable understandings of the basis of rights and justice. There are limits to what
can be justified in abstract terms when these sorts of conflicts are acknowledged.

(Fnote continued)

L. Jaume, Il potere costituente in Francia dal 1789 a De Gaulle, in P. Pombeni, Potere costituente
e riforme costituzionali (Bologna: Il Mulino, 1992); and M-J. Redor, De lEtat legal a lEtat de droit
(Paris: Economica, Presses Universitaries dAix-Marseille, 1992).
62
B. Ackerman, The Future of Liberal Revolution (New Haven, Conn.: Yale University Press,
1992).
63
Ackerman, We the People, pp. 1739, 2727 and 2904.
64
For an insightful discussion of the motivational problems linked to higher law-making, and of
how it may be possible to give a more positive picture of public reason in constitutional moments,
cf. R. Goodin, Motivating Political Morality (Oxford: Blackwell, 1992), pp. 10023.

Review Article: Constitutionalism and Democracy

613

To the extent that liberal constitutionalists recognize these difficulties they

look to processes of judicial review to resolve them. However, there are grounds
for believing that democracy offers both a better and a more legitimate system
for their resolution. If no objective or universal standpoint can be identified a
priori, then it will be necessary to construct common ground by encouraging
each person to adapt his or her viewpoint to accommodate as far as possible those
of everyone else concerned. This process of mutual adaptation necessarily
entails a move from a purely self-regarding or partial stance to a more
other-regarding or impartial perspective, and the giving of reasons that can be
publically assessed. No arguments need be excluded a priori, although many
will be in practice. How far one will be required to shift ones position in any
given direction will depend on the radicalness both of ones own views and of
those whom one is addressing. Different rights and interests can in this way be
weighed in a manner suited to the specific circumstances and commitments of
those involved. Nevertheless, certain disagreements will prove intractable. At
this point, we will need a procedure for breaking the deadlock and reaching a
decision all can recognize as legitimate.65
Democracy has typically filled these two functions of promoting consensual
decision making and settling disputes. Indeed, constitutional courts themselves
employ both democratic debate and majority voting when ruling on hard cases.
However, judicial review is likely to possess less legitimacy than a political
process. For it lacks the potential of the wider political forum of involving all
relevant groups in the decision so that they feel that some account has been taken
of their views. In order to understand how democracy can achieve this result,
however, we need a more differentiated appreciation of the nature of democratic
decision making than Ackermans.
Ackerman rightly notes that most members of modern societies are best
defined as what he calls private citizens.66 In other words, they are neither
perfect privatists, a term he uses to denote individuals exclusively devoted to
their own personal concerns, nor are they public citizens, his label for persons
willing to devote all their energies to the common good. Like Ackerman, we
think this mixture is a good thing. A society of atomistic egoists would resemble
the Hobbesian state of nature, whereas public citizenship in the sense described
by Ackerman can all too easily degenerate into the enforced identification with
the state characteristic of totalitarian regimes. However, Ackerman fails to
develop this thesis sufficiently.67 He endows the private citizen with a
schizophrenic personality, acting as a perfect privatist in normal times and as

65

This account of the role of the democratic process in constructing a common point of view draws
on B. Manin, On Legitimacy and Deliberation, Political Theory, 15 (1987), 33868; and D. Miller,
Citizenship and Pluralism, Political Studies, 43 (1995), 43250.
66
Ackerman, We the People, pp. 23243. Ackerman himself emphasizes the conceptual nature
of the link between private citizenship and dualist democracy: cf. pp. 297300.
67
For a similar criticism of Ackermans conception of private citizenship, wavering between an
expressive and instrumental account of it, cf. Galston and Galston, Reason, Consent.

614

BELLAMY AND CASTIGLIONE

a public citizen on those extraordinary occasions that define constitutional

politics. He believes that only exceptional circumstances, such as civil war or
the mass unemployment of the 1930s, are capable of mobilizing the citizenry
and involving them in the protracted, well-focused, public-spirited, deep and
deliberative discussions that characterize higher law-making. In contrast, we
wish to suggest that citizens are capable of switching between and, when
appropriate, even mixing, the normal economic and the constitutional
deliberative form of politics most of the time.
Economic and deliberative democracy are best seen not as alternative and
mutually exclusive models of democracy,68 but as offering complementary
kinds of political reasoning. Economic democracy involves actors in a process
of what Jon Elster has characterized as bargaining,69 whereby interests can
either be traded or aggregated to achieve maximal welfare. This approach
clearly works well for what Albert Hirschman calls more-or-less conflicts,
where it is possible to split the difference.70 Wage bargaining typically takes
this form. Deliberative democracy, in contrast, involves a form of discourse that
Elster terms arguing.71 This style of politics is more appropriate to
Hirschsmans category of eitheror conflicts, involving rival principles.
Ethnic, religious and linguistic quarrels often have this character. For within
deliberative settings, views can be transformed as opposed to simply combined
in some mechanical fashion.72 Arguing and bargaining are forms of political
discourse present in both constitutional and normal politics, the only real
difference being the relative predominance of arguing in the first and bargaining
in the second. Indeed, even this ideological picture of constitutional dialogue
may be partly undermined by the introduction of a third form of political debate,
strategic arguing.73 Elster notes how self-interested agents often employ
impartial arguments for instrumental reasons so as to exploit the efficaciousness
of impartiality as a strategy for persuasion and its congruence with social norms.
The diffuse presence of strategic arguing in constitutional politics may imply
that impartiality and authenticity are as scarce here as in normal politics. But
68
For two histories of democratic thought that tend to divide the tradition into economic and
deliberative models (or protective and developmental, to use their terms), see C. B. Macpherson, The
Life and Times of Liberal Democracy (Oxford: Oxford University Press, 1977); and D. Held, Models
of Democracy (Cambridge: Polity Press, 1987).
69
Cf. Elster, Argomentare e negoziare, in particular chap. 5; cf. also Political Psychology
(Cambridge: Cambridge University Press, 1993), pp. 2434.
70
Cf. A. O. Hirschman, Social Conflicts as Pillars of Democratic Market Society, Political
Theory, 22 (1994), 20318.
71
Elster, Argomentare e negoziare, chap. 4.
72
Our view of deliberative democracy is looser than that employed by J. Habermas and others
influenced by his thought, who imbue it with strong metaphysical elements of a Kantian kind. See
in this regard Habermass critique of Rawls Reconciliation through the Public Use of Reason:
Remarks on John Rawlss Political Liberalism, Journal of Philosophy, 92 (1995), 10931. Our
position is closer to the accounts of Manin, On Legitimacy and Deliberation, and Miller,
Citizenship and Pluralism.
73
Elster, Argomentare e negoziare, chap. 6.

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615

Elster conjectures that strategic arguing illustrates the more general phenomenon of the civilizing effect of hypocrisy. Politics, in other words, forces us
to take on at least the semblance of accommodating others, a necessity that in
time may lead to us actually doing so.
The balance between the economic and deliberative elements within
democratic debate will depend on the issue and the circumstances. When
principles are at stake, as in debates about abortion or capital punishment,
discussion standardly takes a deliberative form and everyone involved makes
a genuine effort to respect basic human interests. Even in the British Parliament
a classical example of a monist democratic system MPs are given a free
vote on such occasions.74 However, economic reasoning is entirely appropriate
when one is looking simply for a decision that will maximize the general
welfare. Of course, many, if not most, decisions involve elements of both sorts
of reasoning. When deciding on whether to build a road, for example,
consideration is standardly given not only to the interests of residents and
potential road users but also to more principled concerns, such as protection of
the environment. Consequently, a democratic majority need not be seen as
riding rough shod over the values and interests of others. It may be more accurate
to regard it as the best means available of weighing them and bringing them into
some kind of balance through a combination of normal and constitutional
politics, economic and deliberative democracy.
If constitutional politics is not so different from normal politics, then the
constitutionalists belief that the enabling and facilitating of politics requires its
limitation proves overstated. We can think of constitutions as embodying certain
principles that stand at the heart of all just societies, without necessarily placing
these basic rights and liberties within an extra-political framework on the
grounds that they are prior to, pre-conditions of, or need protection from politics.
Instead, their identification, specification and implementation may all best be
seen as products of political processes.
A constitution that takes this form consists of a complex of institutions and
conventions that facilitate the various styles of political dialogue that we
identified earlier as appropriate to the management of particular sorts of social
and ideological conflict, rather than being a legal document that sets out specific
justiciable rights and norms. We remarked above how one school of thought
regards the Federalists scheme of the American constitution as having adopted
just such an approach in order to encourage deliberation and curb the excesses

74

For a discussion of whether Britain can be classified as either a monist or a dualist democracy
in Ackermans sense, cf. I. Harden, The Constitution and Its Discontents, British Journal of
Political Science, 21 (1991), 489510 (in particular, pp. 5005). Worries about monist democracy
in Britain are often the compound result of two different issues. One is the absolute sovereignty of
parliament, the other is the effect of the electoral system which transforms a relative electoral majority
into an absolute parliamentary majority. The latter is not exclusive to monist democracies, as
Ferrajoli, for instance, argues in the Italian case (Dai diritti, p. 285).

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of factionalism.75 They used a whole series of measures from the separation

of powers, to the use of diverse voting systems for different representative
bodies, through to the vertical and horizontal articulation of the principle of
subsidiarity between the state and federal legislatures so as to employ politics
not only to achieve the traditional constitutional goal of checking arbitrary
power, but also to secure informed, consensual and fair decision making.76
Within such a system, political justice designates a modus vivendi achieved
through a balance of power between interlocking democratic institutions, rather
than an overlapping consensus on certain core constitutional values that may be
upheld by a court of putative moral experts.77 This scheme involves the creation
of counter-balancing centres of decision making that devolve power up or down
to the most appropriate level in order to ensure that different values and interests
get heard within the policy-making process. A distinction between normal and
constitutional politics remains appropriate not because they reflect different
qualities of decision making but in order to differentiate between those decisions
that are tied up with the practices and procedures of the whole system and those
that reflect special contexts or on-going concerns. The former would need to be
the preserve of a wider legislative body, such as a federal legislature, and might
require special democratic protection, such as approval by a higher than average
majority, or even, in cases of radical reform, the calling of a constitutional
convention or a referendum. All of these are political mechanisms, however, that
aim to secure the identification of citizens and governments with the norms that
regulate their lives.
Unfortunately, the political dimension of constitutions has increasingly given
way to a reliance on judicial mechanisms. This juridification of the constitution
has a number of drawbacks. As the Italian jurist Gustavo Zagrebelsky has
remarked,78 instead of enunciating a few general norms and principles,
constitutions have steadily taken on the character of ordinary legislation with
an equivalent body of detailed case law. The case for handing over to judges
the necessary tasks of framing, interpreting, applying and balancing the basic
principles of a just social order mirrors the four constitutional arguments
examined in the first section, and suffers from parallel weaknesses. Such
limitations on the self-determination of ordinary citizens imply the paradoxical
75
This republican interpretation has been urged especially by Sunstein in Partial Constitution;
The Enduring Legacy of Republicanism, in Elkin and Soltan, eds, A New Constitutionalism; and
Preferences and Politics, Philosophy and Public Affairs, 20 (1991), 334. In our view, however,
he overemphasizes the need to exclude all forms of economic democracy.
76
For an understanding of constitutionalism which also emphasizes its more purposive and
constitutive function, cf. essays in Elkin and Soltan, eds, New Constitutionalism, in particular
S. L. Elkin, Constitutionalism: Old and New, pp. 323.
77
See R. Bellamy, The Constitution of Europe: Rights or Democracy, in Bellamy, Bufacchi and
Castiglione, eds, Democracy and Constitutional Culture in the Union of Europe, especially
pp. 16873, for a fuller account of these sort of proposals and their relation to the general approach
advocated here.
78
G. Zagrebelsky, Il diritto mite. Legge, diritti, giustizia (Torino: Einaudi, 1992), pp. 14754.

Review Article: Constitutionalism and Democracy

617

belief that ordinary citizens are not fully worthy of the liberties that the
proponents of such schemes nevertheless ascribe to them. In this area, where
no uniquely right answer exists, the political process of bargaining and arguing
forms a necessary aspect for generating an acceptable and authoritative solution.
It ensures not only that decisions get made in the light of the full range of
interests and values involved, but also promotes a certain identification with the
result on the part of the participants. To employ Harts terminology, democracy
creates not just a legal system but a society with law, in which citizens look
upon [the legal systems] rules from the internal point of view as accepted
standards of behaviour, and not merely as reliable predictions of what will befall
them, at the hands of officials, if they disobey.79
This approach does not entail the blurring of the roles of legislature and
judiciary, much less the elective dictatorship of executive power both
traditional problems of systems, such as the British, which appear to emphasize
democracy rather than liberal constitutionalism. Quite the contrary. Democracy
is necessary for the legitimate formulation of law but is perfectly consistent with
its application by an independent judiciary so as to avoid bias. Democracy and
the separation of legislative and judicial powers are both informed by the ideal
of impartiality, in the sense of ensuring all relevant interests and values are
weighed and publicly debated so that decisions do not reflect purely self-serving
preferences and prejudices. For similar reasons, democracy demands that
executive actions avoid arbitrariness by being publicly accountable. Thus, the
British tendency to equate democracy and the rule of law with the unchecked
power of the executive testifies to an absence of democratic controls rather than
the dangers of popular sovereignty. From our point of view, the remedy lies less
in a written constitution and bill of rights than in a more democratic system that,
for example, revives the powers of local government, introduces an elected
second chamber, reinforces the independence of MPs from party discipline and
ties them closer to the voters through electoral reform.
V. C O N C L U S I O N

Constitutionalism and democracy lie in an ambivalent relationship to one

another, with each providing both the foundation for and a threat to the other.
We have argued that these tensions are exacerbated by the pluralism of modern
societies, which make principled agreement hard to achieve. Watering down the
terms of the liberal constitutional framework, in the manner of Rawlss Political
Liberalism, does not resolve the difficulty, since such a thin consensus on
essentials remains too underdetermined to avoid the possibility of reasonable
conflict stemming from differing conceptions of the good. Instead, we have
advocated a republican form of political constitutionalism that draws on
democratic processes. Rather than excluding potential divisive differences to

79

H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), pp. 113 and 197.

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preserve a supposedly primordial consensus, this approach includes them and

seeks to promote accords through the political management of conflict. This
scheme fosters the identification with shared ends and respects our social
attachments in the manner desired by republican democrats, but still encourages
the critical reflection and toleration rightly demanded by liberal constitutionalists.80
80
We have attempted to apply the model of political constitutionalism to current debates in Europe
in R. Bellamy and D. Castiglione, The Communitarian Ghost in the Cosmopolitan Machine:
Constitutionalism, Democracy and the Reconfiguration of Politics in the New Europe, in Bellamy,
ed., Constitutionalism, Democracy and Sovereignty.