Edited by Tom Ginsburg and Rosalind Dixon
Chapter 14: Political Parties and Constitutionalism
Richard H. Pildes 1 INTRODUCTION Constitutions and judicial review are often thought of, particularly in more recent decades, as devices for ensuring the protection of individual rights and, through equality provisions, the rights of potentially vulnerable minority groups. Within this conception, constitutional law is viewed as a means of restraining potentially oppressive majorities from running roughshod over personal liberties or the interests of minority groups. This rights-equality conception tends to emphasize what might be called ‘negative constitutionalism’: constitutions as shields against majoritarian excesses. But constitutions also serve to constitute political power. In constitutional democracies, constitutions empower democracy: they create the institutional structures, offices of government and framework for decisionmaking that organize the diffuse preferences of a mass society into recognizable, meaningful and legitimate political outcomes. The study of how constitutions create positive political power, and how constitutional law sustains (or fails to sustain) this power, might be called ‘positive constitutionalism’.1 Though most modern constitutional scholarship focuses on the role of constitutions as checks on political power, the role of constitutions as creators of political power is at least as important, both historically, in terms of why constitutions were created originally, and in terms of the practice of governance today. For example, the American Constitution, the oldest constitution, was created to realize this kind of positive constitutionalism: its central purpose was to create a powerful, effective system for governance at the national level. Only after that Constitution was created was the Bill of Rights, the provisions designed to check the national...
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