ABSTRACT
I am an American who votes Democratic. I note this unsurprising fact to mark a defining feature of politics in a democratic state. Democratic politics requires partisanship. Does it also depend upon access to an impartial standard, procedure, or constitution through which to regulate partisanship? The answer is complex. The public authority of democratic constitutionalism cannot be established by fidelity to a written text alone. It cannot because, first, a constitution consists of words whose meanings are not definitively fixed even when initially composed; second, those words must later be applied in new and unforeseen circumstances; and third, the spirit through which the open-textured document is applied must give priority to public elections if the democratic element of constitutionalism is to be honored. If judicial authorities in a demo-constitutional state override this last consideration, citizens’ trust in the wisdom of judicial decisions becomes corroded.
