Constitutional Democracy

3. Constitutional constraints, constitutional review

3. Constitutional constraints, constitutional review The provisions protecting liberal principles are commonly said to depart from democratic decision making in two important ways. First, in constitutional democracies majority rule has no universal application to collective decisions. The rule of the majority means that support by the smallest possible majority is sufficient for an option to be declared the winner. In cases of binary choices, majority rule holds that the choice that receives at least one vote more than the half of all votes is to be the choice of the community . The constitution exempts the liberal principles from the scope of this rule. It makes fundamental individual rights and the requirements of equal treatment part of the status quo; and it requires some super majority to alter the status quo.10 In what follows, I will refer to such procedural requirements as the liberal constraints of the constitution (or simply as liberal constraints ). I will talk about constitutionalism whenever majority rule is subjected to liberal constraints.11 Second, it appears as though constitutional democracies violate the principle of popular sovereignty as much as that of majority rule. For the constitutional status quo does not have legal force unless such laws that are adopted by simple majority and are claimed to conflict with the provisions of the constitution lose their force for this reason. However, a law does not become null and void unless it is declared such by a body with authority to strike down. If the legislature itself is this body then there are two possible alternatives. Either it is the case that the same super majority may settle constitutional disagreements only as is required for amending the constitution. In this case, only such controversies can be settled that the legislature could handle through amending the existing constitution; therefore, the constitutional controversy could not be settled in precisely those cases where the constitution is supposed to constrain the legislature. Or constitutional controversies are settled by simple majority vote. In this case, the importance of 62 ⁄ Liberal Democracy the fact that constitutions are made by qualified majority is completely lost. Half of the representatives (plus one) may declare the contested piece of legislation to be constitutional, and the outcome is the same as though the constitution were amended by a simple majority. Thus, in order for constitutionalism to work, the protection of the constitutional status quo must be removed from the authority of the legislature. But why not authorize another elected body? Because this body would not be identical with the legislature, neither would it be bound by the requirement of qualified majority—it is not its own two-thirds majority decisions that would be overturned by it. There are, however, further considerations that advise us against a second-chamber type solution. Constitutional review is supposed to establish whether contested provisions of law are or are not coherent with the rules and principles incorporated in the constitution. This and only this must be its outcome and motivating force. However, upholding or annulling a legal provision typically have different effects on different groups in society. In other words, constitutional decisions usually have signi ficant distributional consequences, and from the voters’ point of view the consequences of such decisions for their own situation are no less important than the consequences of the correct interpretation of the constitution for the contested piece of legislation. Therefore, it is reasonable to put the authority of constitutionally revising laws into the hands of such a body that is as much insulated from daily politics as possible. A necessary condition for this is that the members of the body entrusted with constitutional review must not be directly elected.12 Such a state of affairs would not raise the suspicion of violating the principle of popular sovereignty, had it been the case that the constitutional controversies were all due to the legislative majority transgressing self-evident constitutional constraints in transparently bad faith. In such cases, no one could claim that the guardians of the constitution make law despite their not being elected officials. They would only enforce such constitutional constraints against the current legislators that were erected by an earlier lawmaking or constitution-making assembly. In many cases, however, different good-faith interpretations of the constitution collide with one another; in other words, the narrow linguistic and logical reading of the relevant constitutional provision may allow for more than one—mutually exclusive—legal rule. It comes naturally to assume that in such cases...