ABSTRACT
Constitutionalism is popular political phenomenon. It has become common to suppose that a respectable legal system must include constitutional protection of individual rights. The argument that constitutionalism subverts political equality assumes that constitutional interpretation is actually legislation. The two connected doctrines are a legal theory – legal positivism – and a philosophical thesis – Archimedean moral scepticism. Legal positivism cannot support the claim that constitutionalism is undemocratic, because legal positivism is a bad theory of law. The distinction between statistical and communal action allows us two conceptions of democracy as collective action. The first is a statistical conception: that in a democracy political decisions are made in accordance with some function – a majority or plurality – of the votes or decisions or wishes of individual citizens. The second is a communal conception: that in a democracy political decisions are taken by a distinct entity – the people as such – rather than any set of individuals one by one.
