ABSTRACT
James Buchanan and Roger Congleton proposed a more principled constraint on the majority rule, namely a generality constraint on the political process. Under this requirement, majorities would be prohibited constitutionally from treating different persons and groups differently. Even in traditional constitutional pluralist democracies there is an acceptance that certain “high stake” decisions, such as constitutional amendments, require “super majorities” or other mechanisms which would be more inclusive of minorities. Passing from philosophy to the law, it can be said that constitutions can, should and often do include rules making it difficult for the parliamentary representation of the majority to restrict political and human rights. If the limitation and change of the constitutional constraints on majority rule were left to the courts alone, the risk of arbitrariness would not be eliminated. A modern constitution cannot include a jus respondent of law professors.
