- This article explores three prominent ways in which constitutional democracy has been conceived, turning in a final section to the constitutive role each of them accords democracy as a source of the constitutional framework within which it operates. The analysis is conceptual rather than historical. It develops ideal types that reflect the main positions of key figures in the contemporary debate on constitutional democracy and the practices of established democratic states in Europe, North America, and the Commonwealth. It begins by tracing certain defining features of the two key terms of constitutionalism and democracy, with subsequent sections exploring the main ways in which they have been combined.
The first two accounts locate the basis of democracy within a legal Constitution that embodies democratic values that limit and define actual democratic processes. In the first account, the Constitution constrains the outcomes of democracy; in the second the Constitution enables the democratic process. On both these accounts, constitutionalism is seen as a higher law upheld by Constitutional Courts. By contrast, the third account sees democratic processes as themselves constitutional, self-limiting, and defining. The very need to adopt a democratic process to reach collective decisions renders democracy, per se, constitutional. Cutting across these three accounts is the constitutive role each accords to democracy. Constitutional democracy refers here to the employment of democracy for debating and validating the Constitution – including the Constitution of the democratic process itself.
The final section explores how each account conceives of this role in a way that accords with the distinctive conceptions it promotes of democracy and constitutionalism, more generally. Although these three accounts are considered discreetly, actually existing constitutional democracies tend to contain elements of all of them. The article concludes with a brief discussion of whether they ought to be combined, and if so how.