Rights, Democracy and the Constitution

Abstract

It is often taken for granted that whoever endorses the thesis of the "coto vedado" is committed to that specific institutional structure that is constitutionalism in the "strong" form that results from the combination of two main pieces: the primacy of a constitution that includes a catalog of basic rights and the existence of a judicial control mechanism of the constitutionality of ordinary legislation. In any case, constitutionalism has a thorny unfinished business in relation to what is usually called a "counter majority objection." If, as moral ideals, one starts not only from rights but also from the value of democracy, then the road to constitutionalism is perhaps less smooth than it seems. I will try to show that, if, as supporters of the moral ideal of the forbidden preserve, we understand that one of our rights is to participate on equal terms in collective decision-making, then an adequate balance between procedural and substantive values ​​recommends, in my opinion, the adoption of the kind of institutional design that we can call "weak constitutionalism."