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Demagogy and Democratic Loyalty instead of Oligogy and Constitutional Patriotism
      Citation:Antoni Abad i Ninet, Demagogy and Democratic LoyaltyInstead of Oligogy and Constitutional Patriotism, 4Vienna Online J. on Int'l Const. L. 641 (2010) Content downloaded/printed from HeinOnline  Mon Jun 10 05:55:18 2019-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at The search text of this PDF is generated from uncorrected OCR text.-- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information   Use QR Code reader to send PDF to your smartphone or tablet device   ntoni bad i inet  emagogy nd Democratic Loyalty instead of Oligogy nd Constitutional Patriotism  BSTR CT This paper is an exercise of legal democratic experimentalism and a defense of the people s role in our judicial and political systems. I use the Catalonian Statute of Autonomy amendment approved by the Spanish Parliament as an example. This reform produced an upheaval in Spanish politics, which seriouslyaffected the confidence of citizens in the whole political system. This case is analyzed with other polarization cases and constitutional court models in order to reach general conclusions about the relationship between democracy and constitutionalism, the demos and constitutional/supreme court. The main objective is to verify that a less democratic constitutional court means more possibilities of polarization. The last issue that arises in this paper is the constitutional/supremecourt s lack of democratic legitimacy in modern society. The conclusion is that constitutional/supreme court legitimacy is based on violence. I INTRODUCTION This paper is an exercise in legal theory and comparative constitutional law focused on the particular institution of the constitutional/supreme court. As an initial premise, I employ the Spanish constitutional system s recent events to show how the paralysis and consequent crisis of confidence may affect constitutional/ supreme courts in comparable systems. I outline theoretical and practical amendments to be adopted in order to prevent this sort of crisis. The first segment of this paper is an introduction of different constitutional courts models. I present three classifications based on different criteria and characteristics. I assume that the polarization trend will dissimilarly affect a constitutional court. These effects will depend on the constitutional system and constitutional court variety. The second part of this article is related to the polarization phenomenon that currently involves the interpreter of the Spanish Constitution. I will demonstrate that this trend has also affected or may affect other supreme/constitutional courts. Starting with an ancient Athenian example and Sunstein s definition of the polarization phenomenon, I will analyze the causes and effects of the phenomenon regarding the constitutional/supreme courts. The amendment of the Catalonian Statute of Autonomy caused magistrates to shift from their initial positions to an irreconcilable and polarized scenario Paralysis was produced as a result of the Magistrates polarized positions. After the Spanish example, I will  introduce other polarized examples. The main objective of this section is to illustrate these effects. The third paragraph of this article is focused on a micro-comparison of positive constitutional law. The epigraph compares legal corpuses and to analyze the solutions adopted by diverse constitutional systems. In addition, it aims to adapt these elucidations to constitutional systems ruled by partitocracy. I present legal positive and jus-philosophical solutions to be applied in order to democratize our constitutional systems and our constitutional/supreme courts. The first group of these solutions affects the constitutional /supreme court jurisdiction and this allocation into the state s political structure. I analogize the application of the Swiss constitutional system to other constitutional structures. I try to encourage a Swiss democratization effect. The second proposition of this first group is a subsidiary to this precedent. This proposal advocates for a blending of weak and strong judicial review Tushnet). The second group of proposals is related to the constitutional/supreme court system of election and functioning. I define this group of alternatives as a jus positive because they maintain the main structure of our political systems. The first of these solutions is the democratization and universalization of the constitutional/supreme court system of election. I apply a novel interpretation of the responsive democracy theory (Post) to the constitutional/supreme court. The idea is to attribute to the people some sort of responsibility in the functioning of the high court. The main objective is to encourage citizen participation in the highest level of the judiciary. The second proposition is called atomization of the system of representation which maintainsthe current non-democratic framework of the constitutional/supreme court. Thisproposal consists of opening the magistrates election procedure to professional associations, law schools, notary and attorneys bars. The purpose is to removethe partisan/ president monopoly in these nominations and elections. As a result of the above segments, the last issue analyzed in this paper arises: who and/or what legitimates the constitutional/supreme court. I answer this question comparing different legal theories. Finally, I conclude that constitutional/ supreme court legitimacy is based on violence, not only as a principle (in cases that the constitutional/supreme court acts according to the people or their representative will) but also as a mean Mittle) in the rest of cases.I do not obviate, as Mirkine Guetzevitch asserts, that one of the main aspects that highlights the comparative constitutional law studies are the relativity of texts, formulas and dogmas. Men and ideas, parties and principles, mysticism and slogans, customs and traditions, are the determinant factors of a determinate regime.' But if the constitution wants to be considerate of the juridification of democracy 2   it is necessary to adapt the constitutional content to the reality that governs every moment; the definition of juridification is a phenomenon that appears to regulate and codify new legal fields emerging in society. 3 If we want to consider the constitution as the codification of democracy, the judiciary, and especially the constitutional/supreme court, requires urgent (in the vast majority 1 VERGOTINNI 1983): 28. 2 ARAGON REYES 2007): 39. 3 HABERMAS 1981): 455.  of cases) correction of this allocation in the political system and the democratization of their systems of elections and decisions. Otherwise the constitution will be a juridification of the Partycracy. This article aims to highlight the urgent need to democratize the constitutional court's rules involving, in a responsible manner,the real owner of the sovereignty, the Demos I propose demagogy versus oligogy. II CONSTITUTIONAL SUPREME OURT MODELS As a previous step to studying the possible effects of the polarization phenomenon of the constitutional/supreme courts, it is necessary to recognize some differences among the structures and functions of these tribunals. I consider that the polarization will affect the courts, depending on their particular features. I employ three sorts of court classifications to highlight these differences. The first is based on the constitutional/supreme court concept of judicial review. Duchacek stated that, in all kind of systems, federal and unitary, there is a need for an impartial body that can determine the sense of the supreme law of thenation, the constitution, and according to its conclusions, may determine thecompatibility of any law or normative act, national or local, with the constitution. 4 According to this author, this could lead (as it indeed has) to a broad interpretation of the concept of judicial review. Courts could void or confirm the validity of laws passed by the national or local parliaments. Duchacek continued that a federal system seems to have even more need for an impartial body because the interpretation of the meaning of the constitution also includes the srcinal and delicate political agreement between the local communities from which the entire federal system was created. In its role of protector and interpreter of the compact and federal arbiter of disputes, about the division of powers between the two jurisdictions, the body should ideally be independent of the sphere of power of the federal and provincial governments. 5 Finally, there is another kind of court with constitutional powers. Although a supreme court could be incorporated into the first category of specified courts, I believe it is appropriate to establish a separate and unique type from the previous two. The Federal Supreme Court of Switzerland, with a material and jurisdictional uniqueness, is interesting in relation to the purpose of this paper. The nature of the Swiss Federal Supreme Court is special and limited. It can only decide on validity of cantonal laws and generally cannot review federal laws. Thus, only the Swiss people, requested by fifty thousand active citizens or eight cantons may challenge any law passed by the federal legislature (Article 189 of the Constitution of Switzerland . Only the Swiss people can confirm the validity or annulment of federal constitutional law Only Switzerland seems to be close to the democratic ideal to which all states should move closer. 6 I agree with Jackson and Tushnet when they state that the (Swiss) constitution-makers of 1874, who were democrats before liberals, would not have wanted a group of 4 DUCHACEK 1970): 255. 5 DUCHACEK 1970): 256. 6 DUCHACEK 1970): 256.  judges to be able to undo the work of a parliamentary majority, and even of apopular majority. Thus Article 113 (3) of the Constitution represents the victory of democracy over constitutionalism. 7 The second classification is based on the allocation of constitutionalinterpretation. Which court is empowered to engage constitutional interpretation? Jakson and Tushnet differentiated between centralized, decentralized and hybrid review models. 8 The decentralized model (also known as the American or diffuse model involving incidental review) is represented by the organization of the U.S. judicial jurisdiction. A key characteristic of this model is that many courts (state and federal) can engage in constitutional interpretation. This system has beenused in countries such as Argentina, Australia, Canada and Japan. 9 The centralized model (also called the Austrian or European model) is characterized by the existence of a special court, with exclusive or close exclusive jurisdiction over constitutional rulings. The Austrian Constitution of 1920 created such a court, theorized by the scholar Hans Kelsen. Similar constitutional courts exist today incountries like Germany, France, Italy, and some of eastern European nations as well. Yet, hybrid models also exist, in which the ordinary courts may have powerto refuse to apply an unconstitutional law, but only a single court has the power to declare a law invalid.   0 Theoretically, differences between the two systems may reflect different conceptions of the separation of powers. In the Americanmodel, limitations on executive and legislative power have been achieved by the progressive recognition of a third power - the judiciary - described as the least dangerous branch. That third power does not exist in most European countries. European constitutional theory acknowledges only executive and legislative power. The third classification is related to the jurisdiction of the Court. I want to emphasize Tushnet's differentiation between weak and strong forms of judicial review.   3 The strong form will be represented by the U.S. judicial review system and by the constitutional systems around the world that emulate the American system. The distinction between the U.S. and the German constitutional systems, based on the existence or not of a specialized constitutional court, is not transcendent in this issue. The difference between strong and weak systems of judicial review is grounded in the relation among the judiciary, the legislature and the government. Under a strong-form system, like the emerging form of the U.S. Supreme Court's decisions, the tension between judicial enforcement of constitutional limitations and democratic self-government is obvious. The people have little recourse when the courts interpret the Constitution reasonably but in the reasonable alternative view of the majority, mistakenly.   4 The strong courtreview insists that the court's reasonable constitutional interpretations prevail 7 JACKSON TUSHNET (2006): 478. 8 JACKSON TUSHNET (2006): 465. 9 JACKSON TUSHNET (2006): 465. 10 JACKSON &TUSHNET (2006): 466. 11 JACKSON &TUSHNET (2006): 467. 12 JACKSON &TUSHNET (2006): 482. 13 TUSHNET (2008). 14 TUSHNET (2008): 22.
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