DEMOCRACY AND THE US CONSTITUTION.doc

Recent years have seen renewed calls to revise the Constitution to make it more democratic. Unfortunately, efforts to "democratize" the Constitution face serious obstacles that advocates of reform have largely ignored. In particular, they have failed to grapple with the reality of widespread political ignorance, which both reduces the extent to which the Constitution can ever be fully democratic and makes the reform process more difficult. Part I of this article notes that advocates of "democratizing" the Constitution rarely specify the theory of democratic participation they would like the Constitution to conform to. This is a very significant omission. There is more than one theory of participation and different theories have widely divergent implications for constitutional reform. Some theories such as "deliberative democracy," imply a much higher level of political knowledge in the electorate than is likely to be feasible in the foreseeable future. ...

2007

Nothing, at first sight, seems less important than the external formalities of human behavior, yet there is nothing to which men attach more importance. They can get used to anything except living in a society which does not share their manners.-Alexis de Tocqueville, Democracy in America, p. 605 BRIAN SMITH is a doctoral candidate in political theory, Georgetown University. The author would like to thank Joshua Mitchell, Robert Purdy, and Stephanie Purdy for their comments on various drafts of this essay.

Morning Star (UK), 2022

International Journal of Constitutional Law, 2017

How do “the people” exercise their “constituent power” to replace the current constitutional order? The conventional answer—drawing heavily on the American Founding period—is that the people act through specialized constitution-making bodies like constitutional conventions in an extralegal form of constitutional politics. Comparative experience, however, suggests self-dealing majorities can dominate these specialized constitution-making bodies, claim to represent the limitless constituent power of the people, and then unilaterally draft new constitutional law that entrenches their power or policies. This Article will recover the American tradition of constituent power—which is still present in the common law of the American states—that limits the powers of specialized constitution-making bodies. This tradition in turn minimizes a serious agency problem in constitutional replacement: It allows the people (the principal) to better control their representatives (agents) in extraordinary constitution-making bodies. A recovery of this American practice therefore represents an important step in helping revise the universal claim that courts should play no role in constitutional politics. It suggests that judicial review can—in certain contexts—play an important role in ensuring a fuller and more deliberate expression of constituent power in formal constitutional replacement.

Voters, Institutions, and Accountability, 2001

Ever since the emergence of political theory, political thinkers have debated which political institutions foster democracies, individual freedoms and good governance. Aristotle's analysis of different types of constitutional regimes and their political effects was retaken and elaborated upon by most modern philosophers. Referring to the history of the Roman republic as well as to contemporary evidence from Venice and other Italian cities, Machiavelli discussed at length the conditions underlying successful republican states in his Discourses on the First Ten Books of Titus Livy. In the Spirit of Laws Montesquieu described in painstaking detail the foundations, structures and operation of monarchies, aristocracies and democracies and the potential causes of their decay. In turn, John Stuart Mill's Considerations on Representative Government examined the constitutional basis of a successful representative democracy.

The Constitution established a wholly undemocratic regime and subordinated the acts of our republican institutions to the Constitution. An examination of the Federalist Papers reveals that this regime is defensible as a genuinely popular form of government.

2004

I. STRUCTURAL BACKUP SYSTEMS IN A DEMOCRATIC CONSTITUTION A basic design premise of the United States Constitution is that the main constitutional mechanism for assuring good governance is democratic accountability through elections. As Madison put it, "[a] dependence on the people is, no doubt, the primary control on the government."' These primary systems, when they work properly, are expected to produce good government through the installation in power of good rulers who will rule for the common benefit of all. Democratic systems will thus produce "a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. ' 2 A second design premise of the Constitution, however, is that the primary system may fail: "the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, * Professor of Law and William J. Magavern Faculty Scholar, State University of New York, University at Buffalo Law School. A draft of this paper was presented to the faculty of St. John's University School of Law on September 27, 2004 as part of the St. John's Law Review Distinguished Scholars Series. An earlier version was also presented at the University at Buffalo Law School as part of a Faculty Seminar on Institutional Analysis, held under the auspices of the Christopher Baldy Center for Law and Social Policy. My thanks to the participants in both workshops for their comments, especially Lynn Mather. I additionally wish to thank Neal Devins and Bob Goodin for comments on an early draft, and Devon Runyan for research assistance. ' THE FEDERALIST No. 51, at 322 (James Madison) (Arlington House 1966). 2 Id. No. 10, at 82 (James Madison).

PMLA, 2014

Tragedy is a recurrent subject in recent constitutional law scholarship. But this scholarship theorizes tragedy through a single narrow model, generally applies it to a limited conception of the domain of constitutional law, and ultimately conceives tragedy only as a liability rather than as a positive potentiality of constitutional practice. This essay critiques one theoretical understanding of tragedy and introduces three more, to argue for an open-ended praxis of pluralist tragic engagement with the United States Constitution that is necessary for the sober, mature, demystified, and deliberative functionality of the constitutional system. Each of these four models of tragedy is paired with a domain of constitutional law: Aristotle's model with interpretation, Hegel's with structure and institutions, the radical Brazilian theater director Augusto Boal's with performance and public effects, and Nietzsche's with cultural and educational accessibility.

Global Policy, 2013

The 2009 Honduran constitutional crisis – in which a sitting president was removed from power and the country by military force – shows that, when it comes to the promotion of democracy, constitutions need to shift to the centre of debate and diplomatic practice in the Organization of American States (OAS). The undemocratic features of member states' actual constitutions cannot simply be ignored until there is a coup d'état. Although it is understandable that the first phase of OAS democracy promotion – undertaken as authoritarian regimes in the region waned – focused on preventing coups and the violent usurpation of democracy, the next phase ought to focus on ensuring that actual constitutions are aligned with, and supportive of, democracy.