Improving Democracy Through Constitutional Reform: Some Swedish Lessons
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This leads to a second set of reasons for resisting the view that practicability is a proxy for democratic adequacy.
These are familiar concerns raised about the democratic credentials of pure majoritarian decision rules: permanent majorities may not adequately protect the interests of minorities; and temporary majorities may act for short-term self-interested goals rather than the long-term public benefit, particularly when they know that they are unlikely to maintain majority control. Under conditions where it is not difficult, relatively speaking, to form legislative supermajorities, these concerns may apply with equal force to amendment rules.
Yet, it is hard to criticise them on these grounds if practicability is the sole criterion for democratic adequacy, because subsequent supermajorities are equally empowered to overturn those changes. It might be tempting to discount these concerns as isolated to exceptional cases that do not conform to the general rule that practicability is a good proxy for democratic adequacy. But this is to concede that the practicability of an amendment procedure is not necessarily correlated with how democratic it is, but depends on other background conditions.
For instance, the constitutions of Germany, Italy and Norway all prohibit amendments that undermine core constitutional values: human dignity, a republican form of government, and basic principles of democracy, the rule of law and human rights, respectively. This is not to suggest that practicability is unimportant or, indeed, that heightened restrictions on amendment of the kind just discussed are ultimately reconcilable with popular rule.
It is rather to suggest that focusing solely on practicability is unlikely to single out criteria for democratically adequate amendment procedures. If formalist theories of interpretation are to be defended on the grounds that the stance they take on extraconstitutional amendment reflects a commitment to democracy, then we require an argument demonstrating the sense in which the amendment process is democratic. That requires, in turn, an inquiry into the features of amendment procedures — at the stage of both proposal and adoption — and how those features purport to ensure that the present generation is self-governing in the relevant sense.
In this section, I turn to considerations related to how amendment procedures can be thought to give effect to popular will in the here and now. It is helpful at this stage to make a few generalisations about the kinds of amendment rules found in contemporary constitutions.
Proposals generally require support from more than a simple majority of the legislature in order to be submitted for adoption, whether passage by supermajority the most common decision rule , or a complex extra-majoritarian decision rule for example, double majority passage. Secondly, amendment rules predominantly have two mechanisms for adoption: legislative vote, or popular referendum the latter being increasingly more common. These, too, generally impose a more demanding decision rule than approval by a simple majority whether of the legislature, or of the qualified voters.
Thirdly, as noted in the previous section, it is common for constitutions to prescribe a more difficult amendment rule for certain fundamental elements. My claim is that it is meaningless to analyse the democratic credentials of a given amendment procedure in the absence of some reasonably well-articulated criterion of democratic adequacy. Democracy is a perennially contested concept and there are many different ways of interpreting and thus giving effect to the basic principle of popular rule.
For that reason alone, one cannot simply invoke democracy as if it represents an uncontroversial and widely agreed upon evaluative criterion. Moreover, the democratic credentials of a given amendment procedure, once specified, may be detached from considerations that guide our evaluation of ordinary that is, non-constitutional law-making in terms of its conformity with the requirements of popular self-governance.
These considerations, I will ultimately suggest, cast doubt on the utility of invoking democracy as a normative criterion for selecting between formalist and antiformalist interpretive approaches. Amendment rules are no exception. How, then, are we to evaluate amendment procedures in terms of their level of commitment to democracy? It is not possible in an article of this length to canvass all possible theories of democracy on which formalist arguments might be based. Each type captures some aspects of existing amendment procedures that make them the object of praise or criticism.
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Moreover, despite lying at opposite ends of the spectrum in terms of the demands that they place on political institutions, each type of view has affinities with aspects of formalism. It must be emphasised that both theories of democracy are presented as ideal types, and in reality they do not represent mutually exclusive sets of concerns. As a consequence, what follows is necessarily schematic. Proceeding in this way will nevertheless serve to capture the range of argumentative strategies available. Although typically associated with the view that political engagement is an important good in its own right, direct democracy need not be defended on these grounds.
If these are the general contours of the evaluative criterion, then it is clear that existing amendment rules and practices are generally not democratic. They provide few vehicles for popular engagement beyond voting, sometimes only indirectly by electing representatives who are empowered to propose and adopt amendments on behalf of the populace. The people may, of course, influence the proposals considered and adopted by their elected representatives through regular political channels.
However, this falls short of the requirements for participation and deliberation that direct democracy contemplates. Voters may not be well-informed of the issue, and voter turnout may be low — indeed, this may well be by design, in order to obscure controversial issues and make failure or passage more likely.
Finally, the premise of making more fundamental aspects of the constitution less susceptible to popular control seems difficult to reconcile with this kind of view. In order for the argument to go through, formalists would need to commit themselves to a radical transformation of current amendment procedures and practices. But that might be a good thing. For one thing, commitment to this kind of project would give formalists a more powerful response to antiformalists, who deal with amendment procedures that are difficult and disengaged from public opinion by constructing their theories around them.
Many antiformalists hold that the source of constitutionalism lies in popular sovereignty. Yet, they do not consider reforming amendment procedures as an alternative to judicial amendment in circumstances where the constitution has fallen out of step with public opinion. This is somewhat dissatisfying in its complacency. Moreover, it is an extension that could prove attractive to liberals and conservatives alike, thus potentially broadening the appeal of formalist approaches.
There are several reasons why formalists might be reluctant to commit themselves to this position, however.
Improving democracy through constitutional reform : some Swedish lessons
First of all, a key criticism of direct democracy is that it too readily assumes that decisions which result from direct popular participation adequately reflect public opinion. But this can be queried under conditions where there is reason to suspect the absence of, inter alia, equal voice and representation of different viewpoints, and deliberation guided by reason-giving. Some formalists may be concerned that such reforms would increase opportunities for judicial activism. However, even those who are not troubled by this possibility may hesitate to commit themselves to such a reform-driven project, as it takes them farther away from their core theoretical and practical objectives.
A second and more serious set of concerns relates to stability and predictability in the framework for governance. Given the emphasis that formalists place on rule of law values, they may be reluctant to expose the constitution to direct democracy. Jurisdictions with amendment procedures that approximate this more demanding requirement provide cautionary lessons here. For example, in Colombia convened a constituent assembly for the purpose of amending the constitution after unsuccessful peace negotiations with guerrilla groups.
Although the then-existing constitution granted Congress the exclusive power to propose and adopt amendments,  the Colombian Supreme Court of Justice upheld the constituent assembly on the grounds of its claim to popular sovereignty and its potential to achieve peace. Once convened, however, the constituent assembly went beyond its reform mandate, producing a new constitution.
Finally, there is a set of related concerns that arise from the risk of exposing constitutional law to interest group politics. In the United States, many state constitutions use direct democracy amendment procedures, combining the popular referendum a relatively common method for adopting amendments with proposal through popular ballot initiatives which is relatively uncommon. The experience of states with direct democracy based legislation nevertheless suggests that one must be cautious in assuming that amendments proposed through the popular initiative process better reflect the public interest.
Moreover, all that is generally required for a popular initiative to appear on the ballot is gathering signatures, a process that involves superficial at best public engagement with the amendment being proposed. Of course, not all ballot initiatives succeed at referendum. However, referenda have their own set of difficulties which may well exacerbate some of these concerns. Here, too, sponsoring groups typically invest large sums of money to advocate for their proposals. Moreover, even when special interest influence is not of great concern, at either stage poor drafting can undermine popular legislative intent, making it difficult for members of the public to understand the proposed amendment and, ultimately, making it difficult for courts who must interpret them.
It thus cannot be said definitively that these kinds of amendment procedures, although perhaps maximally participatory, are democratic in the relevant sense, because they may deliberately mislead the public or they may otherwise produce results that are in conflict with the interests of a majority of the population. Now, it is true that these risks are inherent in the ordinary political process as well. The point here is that formalists may well be reluctant to expose constitutional law to the same kinds of risks that ordinary law endures.
One possible mitigating factor is empirical evidence suggesting that amendment by direct democracy measures is more difficult and less likely to succeed than amendment through representative bodies. However, that assurance of stability and predictability comes at the cost of claiming that such procedures are democratic.
But fundamentality is not an obvious proxy for matters that are likely to enliven public concern. For instance, issues concerning structural features of government often attract less attention than divisive and highly contentious rights issues. Yet, structural reforms may in fact enjoy greater consensus and have more day-to-day impact on the responsiveness and effectiveness of government, thus arguably making them more appropriate topics for direct popular involvement.
The relative lack of public attention to issues concerning devolution and local governance in the United Kingdom,  as opposed to the high level of public attentiveness to the topic of redefining marriage, is a good example. In summary, there are two challenges that a direct democracy based criterion for evaluating amendment procedures presents for defending the formalist claim. First, a direct democracy based criterion does not provide a ready-made response: formalists cannot simply appeal to current amendment procedures to lend democratic credibility to their view, but must advocate for reform.
Second, although reform might be desirable, formalists must nevertheless address the concern that direct democracy may have undesirable consequences for other constitutional values. These considerations suggest that a direct democracy based criterion, insofar as it calls for endorsing a kind of constitutional politics, is likely to create tensions with other commitments of formalist views. This brings us to the second type of view that formalists might rely on to show that the amendment process is democratic.
Such views see representation not as a second-best solution that tends toward the corruption and degradation of the popular will, but rather think of representative institutions as necessary for the instantiation of the popular will. Without representation, on such views, the popular will would not strictly speaking exist — for instance, because it would lack coherence, or because it would be too indeterminate. Representative democracy views are, in the main, far less demanding than direct democracy views because they describe the kinds of institutions for example, voting and political parties that we are familiar with.
Subscribing to this kind of view is thus more likely to allow formalists to avail themselves of existing amendment procedures to claim their commitment to democracy. The drawback is that representative democracy views invite the criticism that they do not so much present normative criteria for democratic adequacy as offer post hoc justifications for the status quo. Nevertheless, while this may be true of some views, it is not a fair characterisation across the board.
Many representative democracy views push in favour of institutional changes designed to ensure that mechanisms of representation function as they ought to. For instance, they may advocate in favour of campaign finance regulation, public information laws, and electoral reforms on the grounds that they are necessary to ensure that policy-making is appropriately responsive to and reflective of majority preferences however defined. As these kinds of policies indicate, proponents of representative democracy are generally forthcoming about the fact that certain background conditions are required to ensure that the popular will is effectively realised through representative institutions; indeed, this is a basic puzzle built in to the notion of representation that all such views must grapple with.
By contrast, as already suggested, there is sometimes a tendency to assume that popular deliberation and participation necessarily produce democratic results. It thus might be said in favour of theories of representative democracy that they have the advantage of putting the fact that procedural rules are a manner of shaping or even constituting the popular will front and centre.
The critical question, then, is how mechanisms of representation ought to operate at the level of constitutional law-making, and whether current amendment rules can reasonably be understood to conform to the demands of a representation-based criterion. The difficulty here appears to have less to do with the ability of citizens to influence the initial proposal and consideration of amendments than it does with the powerful minority veto power over proposed amendments, often at multiple stages in the ratification process.
From the perspective of representative democracy, legislative initiation in particular appears to have several advantages over the popular initiative. Proposals submitted by legislators are typically thought to be better drafted and more carefully researched than those submitted by citizen groups.
Legislators have legal drafting expertise that citizen groups typically lack. Moreover, legislators are required to take into account a wide range of preferences and viewpoints, and they are expected to make compromises in the formulation of public policy on that basis. By contrast, citizen groups are by definition designed to advance factional policy agendas. When representative institutions are working properly, then, the amendment proposal process will be a function of normal democratic politics and mechanisms of accountability and responsiveness. Citizens can advocate for amendments in the same way that they advocate for other social policies, and political parties can run on the promise to bring about constitutional reform and obtain a mandate from the electorate.
Proposals will be made with community consultation, including written submissions, hearings, and the circulation of discussion papers and reports. Similar considerations would presumably be in play at the stage of adoption through legislative approval as well confining our attention, for the moment, to decision procedures that rely on legislative deliberation and voting at both stages of the amendment process.
It would thus seem that formalists could offer a respectable argument for the democratic adequacy of this aspect of amendment. The argument is not, of course, immune from objection. For one thing, the most basic mechanism of accountability — regular elections — is not as effective here because unpopular amendments cannot be undone as easily as unpopular legislation. Still, it is not implausible to imagine ways that ordinary political reforms could be used to bring procedures for constitutional amendment by legislative bodies in line with the demands of representative democracy.
The difficulty thus appears to be less with the decision procedure than with the decision rule. Current decision rules require either a supermajority or complex extra-majority vote, and decision rules for adoption in particular tend to be more onerous.
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Supermajority decision rules are the most common. As a result, legislative minorities hold a veto power over amendment proposals that may otherwise carry broad popular support. The only way to maintain that a minority legislative veto is consistent with popular rule would be to insist that the criterion of democracy requires refining preferences through the considered deliberation and debate of elected representatives so as to produce a near-consensus.
Leaving aside independent objections to this kind of suggestion, strengthening the element of elite deliberation in the criterion puts formalists in a difficult position because they advance similar arguments against the democratic credentials of judicial decision-making.
To be sure, part of the objection in that context is the idea that judges are unelected, and therefore unaccountable. However, the objection also makes much of the broader unrepresentativeness and elite status of the judiciary as an institution. It is difficult to see how supermajority voting requirements within legislatures fare much better in this regard: there is no reason to think that a legislative minority is likely to be representative of the population as a whole. This puts formalists in a difficult position. The proposition that legislators are superiorly placed to initiate constitutional amendments on democracy grounds is already controversial.
But to insist that a minority of the legislature is superiorly placed to decide whether a constitutional amendment succeeds or fails cannot be sustained on democracy grounds, even if there were such a consultation process in place. Under circumstances where it is evident that a particular proposal enjoys strong, broad-based support across the electorate and the proposal nevertheless fails to be adopted due to the opposition of a minority faction of the legislature, we would likely conclude that mechanisms of representation have failed — not that the popular will dictated against it.
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One way that formalists might address this concern is by confining their argument to hybrid amendment rules, which combine legislative proposal with the popular referendum for adoption. Esperamos que disfrute de su visita. Both authors and parts are not established. It takes the landscape on four so single users - China, Japan, India, and the United States - using a wasteful college of recent, stable, accessible, and possible museums.
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