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Weak constitutionalism and the legal dimension of the constitution
Published online by Cambridge University Press: 24 March 2022
Abstract
This article offers a critical discussion of two influential positions in contemporary legal and political theory, which will be referred to as ‘political constitutionalism’ and ‘strong popular sovereignty’. Despite their important differences, both share a sceptical approach to the dominant constitutional practice in liberal democracies, hence they are brought together here under the term ‘weak constitutionalism’. They both highlight the political dimension of the constitution, arguing that democratic legitimacy requires institutional arrangements that give the people and/or their representatives the last word in settling fundamental issues of political morality. By contrast, this article underlines the legal dimension of the constitution as the repository of the moral principles that make possible a practice of public justification in constitutional states. It is from this second constitutional dimension that the critical arguments are developed, both against the desire to take the constitution away from the courts and the aspiration to recognize the constituent power as pre-legal constitution-making faculty.
Keywords
- Type
- Research Article
- Information
- Global Constitutionalism , Volume 11 , Issue 3: Populist Challenges to Global Governance: Feminist Perspectives , November 2022 , pp. 494 - 517
- Copyright
- © The Author(s), 2022. Published by Cambridge University Press
References
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73 This extraordinary body is convened through the collection of signatures and is activated by popular referendum; its proposals must be ratified by the people before they come into effect. As a channel for the exercise of constituent power, constituent assembly is not subject to any substantive limits stemming from the established legal order.
74 See Colón-Ríos (n 57) 9 (emphasis in original).
75 See Colón-Ríos (n 57) 10.
76 See Colón-Ríos (n 57) 39–40.
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80 This point has received numerous theoretical formulations, among which Jürgen Habermas’s co-originality thesis stands out. See Habermas, J, ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’ (2001) 29(6) Political Theory 767 CrossRefGoogle Scholar.
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86 This would be the position that refuses to turn the European Union into a federal state, however democratic its procedures, arguing that the principle of democracy requires states to have uncompromised external sovereignty. According to democratic re-constitution, a legitimate European federal state would only be possible through the exercise of constituent power by the European peoples acting as a single political community. For an analysis of this conception in the context of the German Federal Constitutional Court’s decision on the compatibility of the Treaty of Lisbon with the German Basic Law, see Vinx (n 84) 114–24.
87 Colón-Ríos (n 57) 104–07.
88 See section IV above.
89 Möller, ‘From Constitutional to Human Rights’ (n 19) 376. See section III above.
90 This standard approach is not only prevalent in constitutional theory but is also behind two of the main judicial doctrines on this topic: the Indian Supreme Court’s ‘basic structure doctrine’ and the Colombian Constitutional Court’s ‘constitutional replacement doctrine’. See Roznai, Y, Unconstitutional Constitutional Amendments (Oxford University Press, Oxford, 2017) 42–69 Google Scholar; see also Krishnaswamy (n 7) 118; and C Bernal Pulido, ‘Unconstitutional Constitutional Amendments in the Case study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine’ (2013) 11 International Journal of Constitutional Law 339.
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92 Here I leave aside the question of whether such limitations should be subject to substantive judicial review. I believe that judicial review of constitutional amendments will be legitimate if it is a necessary practice to maintain a culture of justification in the political circumstances of a given society. In any case, even if constitutional judges are responsible for specifying the extent of the implicit limits to the amending power, there will still be room for interpretation so that the political powers can respond to judicial determinations.
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