Book contents
- The Law As a Conversation among Equals
- Cambridge Studies in Constitutional Law
- The Law As a Conversation among Equals
- Copyright page
- Contents
- Preface
- Acknowledgments
- 1 Constitutionalism and Democracy
- 2 The Law As Conversation among Equals
- 3 “Democratic Dissonance”
- 4 A Constitution Marked by a “Discomfort with Democracy”
- 5 Motivations and Institutions: “If Men Were Angels”
- 6 The Structural Difficulties of Representation
- 7 The Rise and Fall of Popular Control
- 8 The Periodic Vote, or “Electoral Extortion”
- 9 Checks and Balances
- 10 Presidentialism
- 11 Rights
- 12 Social Rights and the “Engine Room”
- 13 Judicial Review
- 14 Constitutional Interpretation
- 15 Constitution Making
- 16 The Birth of Dialogical Constitutionalism
- 17 Why We Care About Dialogue
- 18 “Democratic Erosion”
- 19 The New Deliberative Assemblies
- 20 Conclusion
- Bibliography
- Index
9 - Checks and Balances
Combining “Institutional Means and Personal Motives”
Published online by Cambridge University Press: 25 April 2022
- The Law As a Conversation among Equals
- Cambridge Studies in Constitutional Law
- The Law As a Conversation among Equals
- Copyright page
- Contents
- Preface
- Acknowledgments
- 1 Constitutionalism and Democracy
- 2 The Law As Conversation among Equals
- 3 “Democratic Dissonance”
- 4 A Constitution Marked by a “Discomfort with Democracy”
- 5 Motivations and Institutions: “If Men Were Angels”
- 6 The Structural Difficulties of Representation
- 7 The Rise and Fall of Popular Control
- 8 The Periodic Vote, or “Electoral Extortion”
- 9 Checks and Balances
- 10 Presidentialism
- 11 Rights
- 12 Social Rights and the “Engine Room”
- 13 Judicial Review
- 14 Constitutional Interpretation
- 15 Constitution Making
- 16 The Birth of Dialogical Constitutionalism
- 17 Why We Care About Dialogue
- 18 “Democratic Erosion”
- 19 The New Deliberative Assemblies
- 20 Conclusion
- Bibliography
- Index
Summary
In this chapter, I demonstrate that the system of checks and balances, which was one of the fundamental innovations of modern constitutionalism, was also marked, from the beginning, by a strongly anti-democratic bias. This bias began -I maintain- with the pretense of balancing the “ambition” of the landowning minorities with the “ambition” of the indebted majorities. The choice was made to value political stability and social balance over democratic principles, which came at a very high cost. In this way, majority rule lost much of its meaning. Moreover, I claim that the system of checks and balances was conceived from a logic that is particularly worrying for those who defend a “conversational” or “deliberative” approach to democracy. I refer to the fact that the system was much more motivated to “avoid war” between factions than to promote dialogue between them. Thus -I claim- “constitutional dialogue” was possible, or at least not prevented by the institutional system erected, but the system certainly did not promote it and did in fact pose obstacles to it
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- Information
- The Law As a Conversation among Equals , pp. 124 - 135Publisher: Cambridge University PressPrint publication year: 2022