HOW TO CONCEIVE THE CONFLICT BETWEEN CONSTITUTIONALISM AND DEMOCRACY TODAY? A VIEW FROM THE DEMOCRATIC CONSTITUTIONALISM

Abstract

Since the emergence of normative conceptions of democracy and from the change in the constitutional paradigm after WWII, a tension arose for the simultaneous achievement of two goals, namely, collective self-government (democracy) and the guarantee of fundamental rights and principles (constitution). This tension is expressed, for example, when the constitutional courts revoke a widely accepted law, require certain policy to be enforced, or interpret a constitutional provision in a way that favors a certain group on a morally complex topic. How to support constitutional limits to political action, how to properly articulate the institutional role of the courts with respect to the majority principle what should the role of constitutional courts be with respect to well-organized civil society, how to increase the constitution's democratic legitimacy. These issues, among others, are addressed by democratic constitutionalism and thus provide elements to consider new ways of thinking about how to conceive this tension.