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Passions and Constraint: On the Theory of Liberal Democracy

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Every once in a while, academic scholars of constitutional law question whether constitutionalism is inimical to democracy. Holmes' Passions and Constraint: On the Theory of Liberal Democracy is an effective response to these critics. Holmes makes the point that rather than limit democratic governance, constitutional constraints actually serve to enable it. A written constitution clarifies separation of powers. Committing to rules of government allows future generations to avoid wasting time debating the basics. Moreover, limiting government can effectively prevent tyranny and ensure that the people remain the true masters. I do think Holmes' argument would have been even stronger with comparative evidence. After all, every country save England has some form of written constitution, so there's near universal consensus at least amongst political elites that constitutions are beneficial.

Every once in a while, academic scholars of constitutional law question whether constitutionalism is inimical to democracy. Holmes' Passions and Constraint: On the Theory of Liberal Democracy is an effective response to these critics. Holmes makes the point that rather than limit democratic governance, constitutional constraints actually serve to enable it. A written constitution clarifies separation of powers. Committing to rules of government allows future generations to avoid wasting time debating the basics. Moreover, limiting government can effectively prevent tyranny and ensure that the people remain the true masters. I do think Holmes' argument would have been even stronger with comparative evidence. After all, every country save England has some form of written constitution, so there's near universal consensus at least amongst political elites that constitutions are beneficial.

Holmes makes a paradoxical defense of a simple argument, that freedom requires rules, for instance, a constitution is not a straitjacket but the double yellow lines that keep traffic flowing. But what is the alternative? The only thinkable alternative is anarchy, and surely no one would defend that. Conservatives often attack the desiccation of substantive democracy by procedural democracy, but according to Holmes procedural democracy is the grease on the skids of substantive democracy. But if the only alternative to Holmes arguement is the formlose Formende of Schmittian soccer-stadium democracy, then he makes a trivial argument to discredit a non-sensical one. He seems to find endless fascination in the paradox of a freedom engendered by rules and the paradoxes of self-binding, but more interesting and paradoxical is the fact that rules often take on a life of their own and encumber the very freedom they were instituted to safeguard, like the alarm clock which rings on Saturday morning. The argument is a stalking horse because he is not defending procedural democracy, which no one would attack (who loves the constitution more than conservatives?), but rather the regulatory and welfare state, which is not bound by rules but in fact conceals bureaucratic authoritarianism under the guise of democratic proceduralism.