Power Sharing in Deeply Divided Places

8. Courts, Constitutions, and the Limits of Majoritarianism

CHAPTER 8 Courts, Constitutions, and the Limits of Majoritarianism Samuel Issacharoff As my colleague Richard Pildes (2004) has proclaimed, we are in the Age of Democracy. Today more citizens participate in popular elections of government than at any other time in the history of world affairs. Democratization movements throughout the world have produced institutions of self-governance in regions where this was previously unthinkable. Even countries deep in the throes of tyranny or kleptocracy attempt to maintain a veneer of participatory engagement by their citizens, hoping perhaps that the act of casting a ballot serves as a sudden guarantee of legitimacy. The welcome expansive role of elections once again raises questions as to what properly constitutes democratic government, however. The term “democracy ” is frequently used in its most minimal sense, as a system through which the majority, either directly or through representative bodies, exercises decision-making political power. And certainly, so long as the system is reasonably free and involves an uncorrupted popular selection of the head of state, a society is deemed democratic. Whether majoritarian selection is sufficient is another question altogether. Consider the Copenhagen criteria for accession to the European Union (EU) as a case in point. In order to be eligible for admission to the EU, a candidate state must have a demonstrated commitment to democracy. Little beyond this minimal condition is specified, leaving both the EU and potential entrants subject to ad hoc decision making on a country-by-country basis. The reason is largely historic and emerges from an era in which the democratic world in Europe could be quite aptly defined by the exclusion of the Soviet bloc, Francoist Courts, Constitutions, and Majoritarianism 215 Spain, and the military regimes in Greece and Portugal. Little more analysis was needed, and such classification was straightforward. But when faced with claims for integration from the East, with divided societies such as the Baltics, Romania, and Bulgaria, or fratricidal societies such as the Balkans, this definition becomes predictably insufficient. In such countries, the question is not simply one of the majority being able to rule but of the limits on what the majority may do with its power. The emergence of new systems of self-rule forces us to ask whether such a spare definition is sufficient or whether further institutional constraints on the majority are necessary in order to produce stable governments capable of protecting other core liberal values, such as equality, rule of law, and freedom of speech. Once we turn to fractured societies marked by deep cleavages over race, ethnicity, language, or religion, the use of an elected head of state as the shorthand for our democratic aspiration becomes woefully inadequate. Popular selection only determines who shall rule; it does not speak of the constraints that must accompany the exercise of that power. In deeply divided societies , the emergence of stable democratic rule requires dampening animosities so that the population as a whole views the exercise of state authority as politically legitimate or, perhaps more modestly, does not rise in armed rebellion against the state. To this end, some guarantee is required that elections are not a one-shot, end-stage game in which access to state power will permanently define the relation of conqueror and vanquished. In a divided society, constraints on pure majoritarian democracy provide credible commitments that the faction in control of government will face limits in the use of state power against minorities in that country and that new majorities may emerge to dislodge the incumbent officeholders from power. For several decades now, the task of defining permissible bounds of constrained democracy has been the central challenge taken up by theories of consociationalism. In his classic account, Arend Lijphart (1977) identified the critical elements of the consociational experiment as turning on an ex ante allocation of political representation and other public benefits along the lines of the central cleavages of the society and the creation of a mutual veto or concurrent-majority voting rule to enforce that agreement. The key to the consociational model is that power will be allocated across competing interests in the society, independent of the political process. Thus, elections in consociational democracies typically can decide who among the candidates of a particular ethnic or racial group will hold an office that was predetermined to be assigned to that particular group; whether a particular group 216 Samuel Issacharoff or interest should hold office is decided outside...