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May 4, 2008
Though the idea of democratic decision-making constrained by constitutional terms has become pervasive in modern governance, but its popularity has not erased the deep questions of legitimacy that such constraints raise. many hold that if democratic self-rule is the legitimate form of government, then what can justify restrictions on (current) democratic majorities?
In his review of Howard Schweber, The Language of Liberal Constitutionalism, Brian Bix says:
When most constitutional law scholars think about constitutional theory and language, they consider arguments about how the terms of the United States Constitution (or some other constitution) should be interpreted: according to the Framers' original understanding, according to the Framers' views about application, according to the accepted meaning in the general population at the time of ratification, according to changing or modern understandings, etc. Schweber is making a different sort of point: that the sort of language one uses in arguing within and about a constitutional provision is, or at least should be, different from the sort of language one uses in other sorts of political, moral, or legal debate. To put the point a different way (and in the way Schweber usually couches the claim), constitutions limit the language in which claims can be made; constitutional language is "exclusive."
Constitutional language both plays an important theoretical role in justifying the system of governance and has an important function in the on-going constitutional process.
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