Constitutionalism and Democracy: A Study of Rationality and Social Change

Author: Elster
Publisher:
Publication Date: 1997-10-01
Features: The discussion about the relationship between constitutionalism and democracy has never stopped, starting from the people who led to the creation of the U.S. Constitution—Thomas Jefferson, James Madison. The role of the constitution is to limit the ruling power of the majority; thus, it is naturally believed that the constitution is anti-democratic. However, is that really the case? As a collection of essays discussing the relationship between constitutionalism and democracy, the authors' views differ more than they agree, but the common center of these articles is, why does a society limit its own highest power? Why would a democratic society tolerate what seems to be the arbitrariness of history over today? Democracy, constitutionalism, and private property are inseparable concepts.
Excerpt: There is no issue more frequently listed as "something to be avoided" than negative liberty, and nothing more often than religion. It is understandable that sectarianism—seen as a serious threat to cooperation within a community—is considered divisive. It is said that religious disputes cannot all be resolved politically, or reasonably. On this premise, many societies have decided to draw a "line" between the public and the private—classifying religious beliefs as non-political, beyond the jurisdiction of the majority or officials. At first glance, this division seems somewhat paradoxical, yet it is believed to strengthen social cohesion. As long as religious divisions do not turn into political sects, other disagreements will be easier to resolve. If this is the case, this argument could give us a more interesting understanding of the principle of separation of church and state. From this perspective, the "wall" between the church and the state not only protects the private sphere from harmful interference but also allows the public sphere to escape certain insoluble problems. Generally speaking, students of "negative liberty" overlook the discharging function and agenda-clearing function of private rights. People usually argue for the justification of limiting government jurisdiction by citing the fragility and intrinsic value of the protected areas. But what if we look at it the other way around—what benefits could be brought to public life by excluding certain issues from the public agenda? When one area is obscured, private rights may simultaneously lighten the burden on another area. Negative liberty "privatizes" certain issues, removing them from the list of problems awaiting political resolution. This deflection makes it easier to reach compromises on all remaining disputes. If we slightly change our perspective, what was once seen as a protective method now appears as a discharging strategy. By limiting their own religious expressions—as the previous example illustrates—officials seem to gain as much freedom as sect members. Political autonomy and religious autonomy complement each other. According to Isaiah Berlin, "There is no necessary connection between individual liberty and democratic rule." In his view, this connection is far more fragile than many of its advocates claim. If my argument has some merit, Berlin is at least partially wrong: private rights play a crucial role in democratic politics by eliminating insoluble disputes from the public forum. By narrowing the political agenda to issues that can be discussed, certain private rights can also be said to contribute to autonomy. To reiterate, their function is not only to protect the private sphere but also to lighten the burden on public institutions. Suppression of issues sounds like tyranny: restricting speech is silencing voices. But self-restraint may be necessary for self-governing political entities. On the one hand, avoiding conflict is often a prerequisite for resolving it. According to many democratic theorists, only by removing certain emotional solidarities and commitments from the political sphere can democracy be possible. By excluding religious issues from the legislative agenda, as I said, the principle of separation of church and state may help shape a certain type of public—one that is more receptive to democratic methods of resolving conflicts. Thus, self-silence is a form of self-control, not self-asphyxiation. To reiterate, by privatizing religious issues, a divided citizenry can reasonably resolve (through public discussion and compromise) other disagreements among them. People tend to associate democracy with openness, freedom of speech with the abolition of censorship. Therefore, emphasizing the role of speech restrictions in autonomy seems absurd, but it is not. The form of democratic politics undoubtedly depends on whether certain matters can be strategically excluded from the democratic agenda. Some theorists even argue that the suppression of issues is a necessary condition for the emergence and maintenance of democracy. For example, according to Joseph Schumpeter, one of the basic prerequisites for a successful democratic system is that "the range of political decision-making cannot be too broad." Robert Dahl believes that moral conflicts do not undermine democracy: as long as a society maintains the full autonomy of groups, that is, as long as groups can achieve their goals without interference through various means, disagreements over goals can coexist harmoniously with collective autonomy. Because Samuel Huntington views religion as the main source of conflicts that cannot be rationally resolved, he claims that cultures where religion and politics, the spiritual realm and the secular realm, are not strictly separated are "not suited for democracy." When the color of ultimate goals permeates all concrete political actions, compromise or gradual reform becomes almost impossible. According to this view, if there is no socially recognized boundary between religion and politics, democratization is doomed to fail from the outset.