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'(I've Never Met) a Nice South African'

Virtuous Citizenship and Popular Sovereignty

Lawrence Hamilton

What is virtuous citizenship? Is it possible to be a virtuous citizen whatever the form of one's state? Is it possible to be a virtuous citizen in the new South Africa? In this article I defend some Republican ideas on civic virtue and popular sovereignty, especially as found in the writings of Jean-Jacques Rousseau, to suggest that popular sovereignty is a necessary condition for active and virtuous citizenship. For it is only under conditions of popular sovereignty that the right kind of political agency is possible. I discuss these ideas in the context of modern constitutional democracies, and argue that constitutional democracy in South Africa is not an instance of popular sovereignty and thus does not provide the possibility for virtuous citizenship. I end the article with a proposal for addressing these deficiencies: effective citizen control over the constitution by means of a decennial plebiscite—a carnival of citizenship.

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Resistance, Rebirth, and Redemption

The Rhetoric of White Supremacy in Post-Civil War Louisiana

Marek D. Steedman

Did white supremacists successfully appeal to a right of resistance in Louisiana in the 1870s? I argue that they did. White supremacists self-consciously defended their own actions within the framework of an Anglo-American discourse of resistance against tyrannical government, and they broadly succeeded in convincing fellow (white) citizens. Can we deny them the cover of legitimacy this tradition affords? We might suggest that a right to resist is rendered void by the fact that white supremacists were resisting constitutional democracy itself. I argue against this strategy (or, more precisely, for a right to resist constitutional democratic government), and suggest that the problem is not what white supremacists were fighting against. The right to resist is bound up with a defense of the just demands of the people, and this claim, as articulated by white supremacists, rests on decidedly shaky ground. Deciding the issue, however, is a matter of political contestation.

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The Justice of Crime Prevention

The Case of South Africa

Thaddeus Metz

The Kantian principle that persons must be treated with respect is the most widely accepted normative foundation of a constitutional democracy. Because the state must treat citizens as free and equal persons or in a way consistent with their dignity, it is obligated to abide by majority rule but to ensure that a constitution prevents a majority from violating minority rights to civil liberty and due process. My broad purpose in this article is to explore the implications of the principle of respect for criminal justice in South Africa.

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Christopher F. Zurn

This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three desiderata for the institutionalization of the function of constitutional review follow from this conception: structural independence, democratic sensitivity and the maintenance of legal integrity. Finally, evaluating three broadly different ways of institutionalizing constitutional review - solely in appellate courts, in deliberative constitutional juries of ordinary citizens and in a combined system of constitutional courts and civic constitutional amendment fora - it argues that the third arrangement would perform best at collectively fulfilling the sometimes antithetical desiderata.

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Hans Mommsen

The role of Konrad Adenauer in the proceedings of the Parliamentary Council in Bonn and his decision after his election as first federal chancellor not to form a coalition government with the Social Democratic Party paved the way to a fundamental transformation of the traditional German democratic paradigm versus the Anglo-Saxon concept of interaction between government and parliamentary opposition. The inherited pattern of constitutional democracy that had contributed to the structural weaknesses of Weimar parliamentarism was replaced by the concept of an interaction between government and opposition. Political parties took on the primary tasks of securing stable parliamentary majorities and providing sufficient electoral support for the chancellor. Adenauer's resolved political leadership, therefore, was an indispensable contribution to the reorientation of West German political culture from the former distrust of unrestricted parliamentary sovereignty toward Western democratic traditions.

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Andrew Arato

Constitutional politics has returned in our time in a truly dramatic way. In the last 25 years, not only in the new or restored democracies of South and East Europe, Latin America and Africa, but also in the established liberal or not so liberal democracies of Germany, Italy, Japan, Israel, New Zealand, Canada and Great Britain, issues of constitution- making, constitutional revision and institutional design or redesign have been put on the political agenda. Even in the United States, given the new or renewed problems of our versions of presidentialism, federalism and electoral regime, Article V has come to be experienced as a veritable prison house, and judicial constitutionmaking (think of Buckley v Valejo) is often seen as much as a threat to, as the protection of, democratic mechanisms. And, most recently, in countries currently experiencing externally imposed revolutions1, namely Afghanistan and Iraq, constitution-making has turned out to be a central stake in the ongoing political process. We are living in an epoch in which the nations seem to be slouching, or being prodded, toward Philadelphia and Americans, as the heirs of Madison and MacArthur, are sorely tempted to try teaching others the secrets of its success as a supposedly continuous 200-year-old constitutional democracy. But to be an effective teacher, it is not enough to be in a position of political-military superiority. One must first relearn to learn and even to re-learn.

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Tolerating the Conditionally Tolerant

The Uneasy Case of Salvation Religions

William A. Edmundson

– insofar as they embrace a political conception of justice – they are not unreasonable to hold. What of salvation religions that balk at a political conception of justice? What has a liberal constitutional democracy to say to them? Public Reason A

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Jean-Paul Gagnon and George Vasilev

. Tully , James . 2002 . “ The Unfreedom of the Moderns in Comparison to their Ideals of Constitutional Democracy .” Modern Law Review 65 ( 2 ): 204 – 228 . 10.1111/1468-2230.00375 Urbinati , Nadia . 2014 . Democracy Disfigured: Opinion, Truth

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Bertjan Wolthuis

The Law of Peoples Rawls refers to the theory as a description of a ‘realistic utopia’, answering the question of ‘what a reasonably just constitutional democracy would be like under reasonably favorable historical conditions that are possible given

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Richard Westra

domination and subordination characteristic of class societies antedating capitalism. Economic freedoms as such became the foundation for the political freedoms around which constitutional democracies formed. But capitalist democracies maintain one last human