ABSTRACT

I stated in the introduction that contemporary constitutional theory has turned its back on democracy, and my intention in the previous nine chapters has been to present a constitutional theory that directly confronts the demands imposed by the democratic ideal. In presenting such a theory, I attempted to avoid the all-too-common route of providing an interpretation of the democratic ideal that weakens democracy in signifi cant ways in order to make it consistent with liberal constitutionalism. Instead, I defended a strong and participatory conception of democracy, then took the unorthodox approach of developing an alternative conception of constitutionalism – a ‘weak constitutionalism’ – that can live up to democracy’s demands. The approach presented here does not come accompanied with a promise of any fi nal reconciliation between constitutionalism and democracy. On the contrary, it recommends a set of constitutional forms that make the tension between these two ideals even more obvious. That is to say, it requires a constitution that remains permanently open to future exercises of constituent power: a constitution according to which a departure from constitutionalism is episodically warranted and in which citizens are always free to exercise their democratic right to (re)create the constitutional regime. Only such a constitution, I have argued, would ever come to enjoy democratic legitimacy. The previous nine chapters developed these ideas, and these are the main conclusions that follow from them:

a. Constitutionalism and democracy cannot be brought to a fi nal and happy resolution: the former is about limiting political power, the latter about an unlimited (popular) political power. As a result of this tension, the democratic legitimacy of constitutional regimes is called into question.