Comparative Constitutional Law
Show Less

Comparative Constitutional Law

Edited by Tom Ginsburg and Rosalind Dixon

This landmark volume of specially commissioned, original contributions by top international scholars organizes the issues and controversies of the rich and rapidly maturing field of comparative constitutional law.
Buy Book in Print
Show Summary Details
You do not have access to this content

Chapter 14: Political Parties and Constitutionalism

Richard H. Pildes


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...

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information

or login to access all content.