Sustainable democracy and the crisis of constitutionalism

Chairs
Rosalin Dixon rosalind.dixon@unsw.edu.au; David Landau dlandau@law.fsu.edu; Mateo Merchán Duque mm12922@nyu.edu

Beneath the ongoing and extensive discussions surrounding democratic erosion, resilience, and even repair, a fundamental question persists: what is necessary to establish a sustainable democratic system? While some advocate for radical transformations in the practice of current democratic systems, it is also worthwhile to reflect on the potential of constitutionalism to formulate strategies that ensure enduring democratic frameworks. This workshop explores how constitutionalism issues—specifically, the institutional design of the political system and checks and balances—are particularly relevant for devising mechanisms that can provide forms of democracy more suitable for contemporary societies. Setting aside the highly pertinent questions about the economic and geopolitical conditions for a sustainable democracy, this workshop will examine how addressing the crisis of democracy necessitates tackling the crisis of constitutionalism.

Thematic blocks:

1. What is the relationship between democracy and constitutionalism? To consider democracy does not solely involve revising our understanding of representation or deliberation; it may also encompass profound questions regarding constitutionalism. For example, it concerns how the system of checks and balances articulates majoritarian and minoritarian perspectives. In this initial discussion, we will explore the extent to which addressing the issues of constitutionalism is necessary to comprehend and resolve the challenges of democracy, as well as how the former underpins the concept of a sustainable democratic framework.
2. The enduring question of how to address deeply moral disagreements remains at the forefront of discussions surrounding democracy and constitutionalism. Who holds the authority to decide on contentious moral issues? What is the moral cost of overriding a majority decision? Is such a cost even applicable? Furthermore, the wide spectrum of disagreement on topics like abortion, affirmative policies, and same-sex marriage has been exploited by aspiring authoritarian regimes and politicians, who use it to cast doubt on the principles of constitutionalism and advocate for certain forms of direct democracy. In this context, it is essential to reflect on the role of rights and moral disagreement at the intersection of the ongoing crisis in constitutionalism and democracy.
3. What is the specific role of constitutional courts in establishing the conditions for a sustainable democratic framework? Sustainable democracy requires a discussion of the criteria used to assess the functions of courts, both national and supranational, in protecting fundamental democratic principles and institutions. Moreover, these courts are sometimes called upon to endorse significant changes in institutional arrangements. In this regard, the examination of comparative experiences sheds light on this critical task.