2 - Constitutionalism

Summary

Constitutional Democracy

In order to understand Charters and the role they can or ought to play in countries like Canada, the United States, Germany, and Mexico, one must first appreciate two very basic facts. First, each of the societies in those countries claims to embrace some form of democracy. In Chapter 3 we will see that debates about the legitimacy of judicial review often turn on how more precisely we are to understand the concept of democracy, but for now, we can work with the following understanding: Democracy means that the people themselves are in some way ultimately responsible for determining the laws and regulations by which they are governed, not a king or queen as in a monarchy, or a group of elites as in an oligarchy. Of course, even citizens in ideal democracies do not themselves necessarily make all decisions creating, modifying, or extinguishing laws or other forms of government directive. Not all such “law-determining decisions” are made directly by citizens. Government by the people comes in a variety of very different shapes, and only some of these are direct, as in ancient Athens where all citizens were entitled to vote on matters coming before the Assembly. Most democracies are indirect, which characteristically means that citizens elect representatives who then, normally through processes involving majority voting in a representative assembly, make law-determining decisions on the people's behalf.