Structural Issues a Square Peg in a Round Hole: Democracy, Constitutionalism, and Citizen Sovereignty

STRUCTURAL ISSUES

A Square Peg in a Round Hole: Democracy,

Constitutionalism, and Citizen Sovereignty

GEORG VANBERG*

ABSTRACT

A prominent view in popular conception and academic debate holds

that constitutionalism and democracy are fundamentally at odds. At best,

constitutional constraints on popularly elected, representative policy-

makers (constraints that are often enforced by unelected, unrepresentative

institutions such as independent courts) represent undemocratic, if neces-

sary, limits on democracy; at worst, they are illegitimate obstacles to

the “will of the people.” In this paper, I argue that this perception is

fundamentally f‌lawed and that the constitutional political economy para-

digm developed by James Buchanan provides a powerful corrective.

This paradigm shifts conceptions of democracy away from def‌initional

approaches that equate democracy with the presence of a particular set

of institutional features to a focus on the underlying normative criterion

that can legitimize a political order as democratic: citizen sovereignty.

I demonstrate that viewed from this vantage point, democracy is not

only consistent, but synonymous with constitutionalism: Placed in a

constitutional moment, and choosing the political system under which

they wish to live, citizens are likely to arrive at unanimous agreement

on constitutional safeguards that impose restrictions on majoritarian

politics.

TABLE OF CONTENTS

I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 656

II. PRELIMINARIES: NORMATIVE FOUNDATIONS . . . . . . . . . . . . . . . . . . 657

III. TWO LEVELS OF CHOICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659

IV. AGREE TO WHAT? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 660

V. IMPLICATIONS FOR INSTITUTIONAL DESIGN . . . . . . . . . . . . . . . . . . . 665

* Ernestine Friedl Distinguished Professor of Political Science and Professor of Law, Duke

University. georg.vanberg@duke.edu. © 2021, Georg Vanberg.

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