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1 results

  • 4 - A Constitution Marked by a “Discomfort with Democracy”

  • Roberto Gargarella, Universidad de Buenos Aires, Argentina
  • Book:
    The Law As a Conversation among Equals
    Published online:
    25 April 2022
    Print publication:
    21 April 2022, pp 51-65

  • Summary

    In this chapter, I begin to study in more detail the “construction” of “counter-majoritarian” constitutions or, to use the terms employed by the Brazilian jurist Roberto Mangabeira Unger, constitutions constructed around a “discomfort with democracy.” I use, as a starting point in this exploration, the concept of “factions” that played a central role in the Federalist Papers, and which James Madison took as a basis to explain and justify his influential approach to constitutionalism. I examine the institutional implications of this “counter-majoritarian” view through numerous examples, including the preponderance of “indirect elections”; the special requirements to run for the Senate; and the peculiar organization and competencies of courts.