The “instrument of future mischief”: Constitutionalism, Democracy, the People? A foretaste of the Democratic Renewal Conference

Reanimating moribund democracies with the tools of direct democracy and injections of citizen participation is not without its risks. The flip-side to lauding deliberative and direct democracy is decrying the abuses and dangers of populism. Chief among the risks is a real divergence between the will of the majority and the established constitutional ideology. Assume an orderly national referendum produces a democratic majority in favour of legislation having “illiberal” effects. A free and democratic society has directly expressed its will through a free and open vote. Could such referendum backing immunise legislation from constitutional review?

A Constitution Problem

In Canada, for example, a significant problem for any aggrieved party seeking constitutional relief against referendum-backed retrenchment of rights will be the criteria under s.1 of the Charter of Rights and Freedoms. That section guarantees rights and freedoms “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The instantiation of democratic self-determination would seem to settle the nature and scope of the rights in issue – even if a reversal of progressive, liberal definitions. And Canada is not unique on this point. The Bill of Rights in the South African Constitution contains a like general limitation provision in s.36. And Articles 8 to 11 of the European Convention on Human Rights (ECHR) also contain similar limitations clauses. Certainly a national referendum provides clear, demonstrable justification in a free and democratic society.

A Courts Problem

Characteristic of liberal democratic constitutionalism is the power of courts to review legislative and administrative acts of a government for consistency with constitutional rights and principles. The courts do so to preserve the integrity of liberal democratic constitutionalism for the benefit of the people as against undue interference from government power. But this protective power seems redundant here: there is no distinction between the authors of the legislation and those subject to it. In both instances it is the “people”. Indeed, it is society itself, that generates the rights and for whom the rights exist and apply, declaring the restrictions to be legitimate and valid.

Furthermore the courts themselves are agents of government power, being  like the other branches at one remove from the people. Referendum-backed legislation which reduces the scope of rights demonstrates that a free and democratic society understands the rights in issue in a far narrower, more restrictive way than hitherto appreciated by the courts. Alternatively, the legislation may well limit the nature or scope of rights as defined by the courts up to this point. But a referendum is the best evidence of the reasoned acceptance and approval by a free and democratic society of those restrictions and limitations. In any event the courts must choose whether to school the people on the constitution or be instructed by the people. Choosing the first might be seen as taking the constitution and courts to be independent of the democratic polity.

The Democracy Problem

That observation brings us to the heart of the matter. Following one line of argument, a democracy is no longer the people determining collectively for themselves by majority, not the “will of the demos” evidenced by expressions of majoritarian accord. Instead it is taken to consist of certain abstract values setting a horizon on what any society may decide for itself. Those values (in particular the undifferentiated, broad concepts of equality and liberty) are integral and essential to the concept of democracy. Liberalism predominantly supplies that ideological orientation, the definitions and content of which the courts settle. And as the ultimate arbiters under democratic constitutionalism, the courts become that “bevy of platonic guardians” feared by Learned Hand. Dress it up any way you please, it is a return to a natural law conception of political society. Models of direct democracy and citizen participation remain secondary considerations.

In the alternative, the expression of majoritarian accord (by referendum or other citizen input) may be said not to be the best or persuasive evidence of the “will of the demos”. The demos of the democracy is something more than the current population. Yet legislation and challenges to it are grounded in the needs, problems, and circumstances of just that population. Moreover, the wishes of the current population are good enough for general elections, constitutional amendments, and constitutional novations. If this does not shelve the notion of “demos” completely out of practicable reach in natural law, it risks an unjustified double standard demanding levels of deliberative perfection not required for elections and such like. (A less than charitable rejoinder would suggest that the courts thereby justify a continuing role for themselves to correct in judicial review the infirmities resulting from such imperfect expressions of democratic will.)

A third possibility might be that, in a democracy, the demos binds itself to certain principles in a constitution and cannot subsequently reverse or hollow them out except by express constitutional change. Attempting a redefinition or recalculation of the extent of constitutional rights and freedoms through referendum-backed legislation is doing something indirectly, surreptitiously, that ought to be done directly. Indirect constitutional change, not through the prescribed channels, is unconstitutional in form – and likely in substance as well. This of course belies the fact that it is the courts who have decided for the demos the content and scope of rights without ever soliciting direct input from the demos itself.

Conclusion

There are likely other possible conceptions of democracy. But if the debate and discussion on how to reanimate moribund democratic practices intend anything other than poking and prodding an inert leviathan, they need to make clear what their operative conception of democracy is. Anatomy and pathology come before diagnosis and treatment.

Dr. David Haljan is a Senior Research Fellow with the Leuven Centre for Public Law.

This paper is one of the many interesting contributions in the upcoming RIPPLE/LCPL conference “Democratic renewal in times of polarisation. The case of Belgium
19-20 September 2019, KU Leuven, Faculty of Law.

Title quote: Mary Shelley, Frankenstein 1816 (Bantam, 1991, p204)


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