The paper makes a twofold contribution. Firstly, it advances a preliminary account of the conditions that need to obtain for constitutional rights to be democratic. Secondly, in so doing, it defends precommitment-based theories from a criticism raised by Jeremy Waldron—namely, that constitutional rights do not become any more democratic when they are democratically adopted, for the people could adopt undemocratic policies without such policies becoming democratic as a result. The paper shows that the reductio applies to political rights, yet not to non-political rights, such as reproductive, environmental, or privacy rights. The democratic status of the former is process-independent. The latter, by contrast, are democratic precisely when they are adopted by democratic means.
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It should be noted that Ackerman’s account is primarily aimed at explaining the American constitutional history. It is not a normative account. Further, he has argued elsewhere that, if that were the case, he would rather favor a German-style entrenchment of basic rights. ‘We should follow the lead of the modern German Constitution… It should not require the horror of a holocaust before Americans recognize that dualist democracy is not the best form of government available for modern society’ (Ackerman 1994, p. 533). However, given its pervasive influence in normative constitutional theory, and provided that it represents the PBA better than anyone else’s account, here I take Ackerman’s account as if it were normative.
Bayón (2004, p. 114) makes a similar argument.
The amended Article 9 of the Law of Political Parties reads as follows: ‘a party will be declared illegal when its grave and continuous’ activity ‘makes democratic principles vulnerable.’ Prohibited activities include
promoting, justifying or excusing assaults against the life or the integrity of persons… inciting, bringing about or legitimizing violence as a means for the achievement of political objectives… politically complementing and helping the action of terrorist organizations for the achievement of their ends of subverting constitutional order or gravely altering public peace… giving express or tacit political support, legitimizing terrorist actions or excusing and minimizing their significance.
As a reviewer for this journal has observed, this claim can be disputed on the basis that the ban may serve as a procedural precondition for the correct functioning of democracy. For example, it may serve as a precondition for the autonomous political agency of the Japanese people and, notably, Japanese women. Under this—admittedly plausible—interpretation, the ban may be said to be democratic because of its relationship with the political rights for which it serves as a precondition. I discuss this possibility, and its implications for the account advanced here, below.
Of course, additional arguments against the PBA that have not been considered here could end up blocking the argument (González-Ricoy 2012; forth.; see also Herzog 1994; Sánchez Cuenca 1998; Waldron 1998; Elster 2000; Bayón 2004; Kis 2009). However, as pointed out in above, in this paper I am only considering Waldron’s criticism and I leave these issues aside.
I am grateful to a reviewer for this journal for raising this issue.
In turn, says Habermas, basic rights are also the upshot of the political process, which is the only source of legitimacy under the conditions of ‘post-metaphysical thinking’.
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This research is part of the ARC project 09/14-018 on ‘Sustainability’ (French speaking community of Belgium). Previous versions of the paper were written while I was a lecturer at the Universitat de Barcelona and a visiting research affiliate at University College London, School of Public Policy. For comments I am grateful to José Luis Martí and to two referees for this journal. The usual disclaimer applies.
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González-Ricoy, I. An Account of the Democratic Status of Constitutional Rights. Res Publica 19, 241–256 (2013). https://doi.org/10.1007/s11158-013-9219-5
- Constitutional rights
- Constitutional precommitments
- Political and non-political rights
- Jeremy Waldron
- Bruce Ackerman
- Ronald Dworkin