Democratic Paradox Reframed: Constitutionalism, Democracy, and Populism

• In Event: Democracy--Crisis, Practice and Paradox

Abstract

Despite profound disagreements, deliberative democrats and agonists concur that the ‘democratic paradox’ lies in the conflictual interdependence of individual rights and popular sovereignty. Instead, I argue that paradox is instead better conceived as cross-cutting imperatives governing interpretation of the constitutional norms structuring democracy. This paradox cascades through interrelated iterations in constitutionalism, ordinary democratic politics, and extraordinary politics. In constitutional interpretation – exhibited in American campaign finance and political gerrymandering case law – the ‘paradox of structural rights’ results from competing democratic imperatives for courts to specify constitutional norms structuring the democratic process and refrain from doing so. In the democratic processes that courts both structure and avoid, the ‘paradox of democratic reflexivity’ inheres in conflicting imperatives for cumulative legal closure concomitant to past democratic authorship of constitutional norms and lasting legal openness to future ‘reflexive’ democratic reforms. Synthesizing agonism’s emphasis on the political as conflict with deliberative democracy’s stipulation that legitimation requires rational justification, I offer a normative model of democratic politics as enduring conflict between rational discourses of authorial closure and reflexive openness. Cumulative democratic authorship tends to generate ‘juridification’ that can diminish democratic reflexivity. As an extraordinary reaction against de-democratizing neutralization of reflexivity, populism seeks to entrench itself through authorship of permanent constitutional norms; per my model, it is undemocratic. By contrast, extraordinary constitutionalism paradoxically aims at its own eclipse by retrieving reflexivity, and thereby remains democratic.

Author

• David Lebow, Harvard University