A Square Peg in a Round Hole: Democracy, Constitutionalism, and Citizen Sovereignty
A prominent view in popular conception and academic debate holds that constitutionalism and democracy are fundamentally at odds. At best, constitutional constraints on popularly elected, representative policymakers (constraints that are often enforced by unelected, unrepresentative institutions such as independent courts) represent undemocratic, if necessary, limits on democracy; at worst, they are illegitimate obstacles to the “will of the people.” In this paper, I argue that this perception is fundamentally flawed and that the constitutional political economy paradigm developed by James Buchanan provides a powerful corrective. T
his paradigm shifts conceptions of democracy away from definitional approaches that equate democracy with the presence of a particular set of institutional features to a focus on the underlying normative criterion that can legitimize a political order as democratic: citizen sovereignty. I demonstrate that viewed from this vantage point, democracy is not only consistent, but synonymous with constitutionalism: Placed in a constitutional moment, and choosing the political system under which they wish to live, citizens are likely to arrive at unanimous agreement on constitutional safeguards that impose restrictions on majoritarian politics.
A commitment to long-term principles, in fact, gives the people more control over the general nature of the political order than they would possess if its character were determined solely by successive decision of particular issues
(Hayek, 1960: 269).
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