What Does and Doesn't Belong in a Constitution (per Dorfman & Harel's Democratic Constitutionalism)
Later today and as part of a conference, I'll have occasion to offer comments on a paper titled Democratic Constitutionalism by Avihay Dorfman and Alon Harel. Although the current paper is not yet publicly available, interested readers can find much of the argument they set forth in Chapter 3 of their 2024 book Reclaiming the Public. In this essay, I'll briefly summarize their argument, explain why I find it broadly appealing, and then offer three reservations.
Summary
Dorfman and Harel argue that in a constitutional democracy, we have reason to care not only about the law's content but also about the institutions that generate the law. Ordinary legislation reflects the majority's choices about policy questions, such as which public projects to fund and how. Constitutions, by contrast, include legal norms that do not (or at least should not) depend on the majority's choices. Such choice-independent norms come in two flavors: (1) universal obligations that all democratic governments must abide; and (2) fundamental commitments of the particular polity governed by the constitution.
For Dorfman and Harel (as for a fair number of other democratic theorists, including, for example, Ronald Dworkin, who made a version of this argument succinctly in the introduction to his 1996 book Freedom's Law), constitutional recognition of choice-independent legal norms should not be understood as a limitation on democracy (as Alexander Bickel's framing of the "counter-majoritarian difficulty" would see it) but as establishing preconditions for constitutional democracy. Dorfman and Harel illustrate the point nicely with an example involving slavery:
Democracy becomes particularly appealing if the right not to be enslaved does not depend on what people choose or judge to be just and, further, the independence of this right of public sentiments is publicly recognized as such. It is the public recognition that the prohibition on slavery is not a choice that the polity can make; instead, it is beyond its choice, i.e., the state is obliged to prohibit slavery. This recognition is made salient by entrenching this prohibition in the constitution.
Although most of Democratic Constitutionalism defends the claim that it is important to constitutionalize the choice-independent legal norms, Dorfman and Harel also argue that choice--i.e., enactment through ordinary legislation using majoritarian processes--is key to the democratic legitimacy of some other norms. Taxation is their primary example. They:
argue that by using statutory procedures aimed at eliciting consent to the levying of taxes, the very value of the good produced by imposing taxes is transformed. Surely, the provision of public goods and redistribution (facilitated by taxes) can be effectively made by an enlightened monarch. Yet there is a fundamental difference between the enlightened monarch rule and a system based on the consent of the governed as in the form of statutes generated by democratic participation. Only the latter system can turn the goods that are being produced by taxes to become our goods, namely, ones we create and, so, goods for which we are responsible. Participating in such decisions is most clearly an indication of solidarity on our part towards other citizens. The participation therefore turns citizens from mere beneficiaries of the goods to agents who have some measure of control over them.
Overall Evaluation
I agree with what I take to be two of the core points of Democratic Constitutionalism: (1) entrenchment of universal obligations and fundamental commitments in a constitution is not contrary to but facilitative of democracy; and (2) that entrenchment transforms the social meaning (my term, not the authors') of a legal norm in a way that matters. As an illustration of (2) that Dorfman and Harel provide, it makes a difference whether the state recognizes same-sex marriage as a matter of fundamental constitutional right to equal dignity and respect rather than as a mere choice the majority has made, even if there is no realistic likelihood that the majority will repeal the statute recognizing same-sex marriage. (Dorfman and Harel also say, and I also agree, that in this instance and some others, there is value in recognizing the right through both constitutionalization and legislation.) As I noted above, point (1) is not original to Dorfman and Harel, but point (2), at least as they elegantly elaborate it, is.
Reservations
That said, I have a number of reservations about Democratic Constitutionalism. Here I'll briefly explain three of them.
A. Entrenchment and Amendment
Dorfman and Harel do not argue that constitutionalization of choice-independent legal norms must be absolutely choice-independent. Thus, they say that "eternity clauses" (like Article 79(3) of the German Basic Law) are not a necessary feature of constitutional entrenchment. They allow for the possibility of constitutional amendments. Indeed, Dorfman and Harel allow for constitutionalization even without any sort of super-majority process. They give the example of "the special status of constitutional conventions in the UK." The important point for Dorfman and Harel is not the process by which constitutional provisions are adopted or changed. "Ultimately," they say, "the question of whether public acknowledgment of an obligation is successfully realized in a particular legal system hinges on whether constitutional norms are understood by the public and by decision-makers as obligatory."
I agree with all of that in theory. The UK is a pretty good example of a polity in which constitutional norms can be changed through majoritarian processes but aren't so changed because they are recognized as obligatory. But even in the UK, "soft" judicial review under the Human Rights Act and the possibility of referral to the European Court of Human Rights reflect some recognition that non-majoritarian processes aid in fostering the perception and reality of the choice-independence of constitutional norms.
Meanwhile, in the U.S. and most other countries with written constitutions, it is possible to amend or repeal constitutional rights that Dorfman and Harel (and I and most readers) regard as choice-independent. True, that typically requires a super-majority process, and that makes sense for repeal of a fundamental commitment. When the People ratified the 21st Amendment, they showed that temperance was no longer a fundamental commitment. But what are we to make of the People's ability--even through a super-majority process--to repeal constitutional provisions that entrench universal norms? If a norm is truly universal, such that it is a precondition for any constitutional democracy, shouldn't it be protected by an eternity clause?
Dorfman and Harel could say yes--that the vast majority of constitutions that don't permanently entrench the right against slavery or the right of competent adults to vote are defective for failing to do so. To bite the bullet in that way, however, would render Democratic Constitutionalism utopian, an almost purely aspirational project rather than what I take it to be: an interpretive project (in the Dworkinian sense) that aims to provide a normatively appealing account of existing practices.
B. State Action
With the notable exception of the prohibition of slavery in the Thirteenth Amendment, the U.S. Constitution applies to the government, not private parties. Many more recent constitutions, such as that of South Africa, give various provisions what is sometimes called "horizontal effect." But even in South Africa, the constitution applies less fully to private action than to state action. Its Section 8 makes provisions of the bill of rights binding on private parties "to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right."
Yet the logical upshot of Democratic Constitutionalism is that all universal obligations and fundamental commitments of a polity should be constitutionalized. Surely every constitutional democracy would protect rights against murder, sexual violence, theft of property, and other serious harms regardless of whether they are perpetrated by the state or by private actors. And indeed, the criminal law in every constitutional democracy criminalizes such actions.
The U.S. Supreme Court has held (in DeShaney v. Winnebago County and Castle Rock v. Gonzales) that the state has no duty to protect people from private violence. The U.S. is in this respect an outlier. Many national constitutions (either expressly or via judicial interpretation) impose on the state a duty to protect people from private harm. But notably, what the constitution does in those countries is to impose a duty on the state. So far as I'm aware, no national constitution itself outlaws murder or other crimes. That work is left to the criminal code.
Why? The answer, I think, is that constitutions do not contain all of the universal obligations and fundamental commitments of a polity. Many contain only those that impose limits or duties on the government. Some (like South Africa's) provide for some rights against private actors. The comparative constitutional picture is thus a hodgepodge--even with respect to ostensibly universal obligations. In this respect, too, the account that Dorfman and Harel offer doesn't fit the pattern of actual democratic constitutional practice all that well.
C. What's Fundamental?
Meanwhile, it is not entirely clear why Dorfman and Harel think that any particular matter is best relegated to majoritarianism. Take taxes, their leading example.
Suppose anti-oligarchy is a fundamental commitment of a polity and further, that the people of the polity recognize that it is difficult to prevent or reverse oligarchy if people accumulate vast wealth. Would it not make sense for that polity to entrench in its constitution a wealth tax on ultra-millionaires and billionaires? The constitutionally imposed wealth tax could be indexed to inflation so that it does not affect anyone but the ultra-rich. Moreover, some of its details could be left to legislation and regulation.
As I understand the argument of Dorfman and Harel, making any substantive choices about taxation must be left to legislation; otherwise, it is not a choice. But why not?
Surely the answer cannot be about consent at the individual level. We would expect most ultra-millionaires and billionaires to vote against candidates for the legislature who support a wealth tax, regardless of whether those candidates will be voting on the tax as ordinary legislation or as a constitutional amendment. So most of the people who would be paying the tax will not be consenting to it in any literal sense.
More broadly, this example underscores the slipperiness between "fundamental commitments" that, according to Dorfman and Harel, are choice-independent and therefore belong in a constitution, and "choices" of the polity that should be accomplished through legislation. I suppose one could say that a fundamental commitment just exists; it's not a choice. I'm dubious of such a claim, but even if we grant it, that doesn't respond to my hypothetical, in which the polity already has a fundamental commitment to anti-oligarchy. Many questions that might be a matter of choice in most polities could turn out to be the stuff of a fundamental commitment in any particular polity. Thus, while I agree with Dorfman and Harel that there is value in democratic choice across a great many domains, I don't see that as walling off any matter from the possibility of finding its way into a constitution as a fundamental commitment.
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Despite my reservations, I learned a great deal from Democratic Constitutionalism. It's possible I've misunderstood the argument in one or more respects. In any event, I look forward to engaging directly with Dorfman and Harel about their fascinating and important project.
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Postscript: I have a new Verdict column up today discussing a conference I recently attended about constitutional law casebooks and pedagogy in an era of rapid constitutional upheaval.