Public Law as Democracy: The Case of Constitutional Rights

Constitutional rights have come to be seen as central to the basic tasks of public law, defining and marking the limits of public power in ways that can be publically justified, and thereby ensuring that it promotes public ends. Such rights are commonly believed to achieve these tasks by virtue of standing outside of the political process. Yet, this view gives rise to a paradox whereby the supposed beneficiaries of public law, whose interests it exists to protect and promote in the activities of the political authorities that act on their behalf, are not actively involved in the reasoning of the public themselves. Against this account, this chapter presents a democratic view of public law as the rule of the public. On this view, democratic mechanisms offer the means for the public not just to authorise and control those who rule, be it through elections or via their representatives in the legislature, but also to generate and justify law and policies that reflect the reasons of the public. Democracy serves the basic tasks of public law by providing oversight of the public authorities and their functions in conformity to public processes and norms. However, it is the public itself that does so, through their actions and reasons rather than via legal intermediaries. This argument is developed by showing that constitutional rights cannot be regarded as lying outside democratic politics, as liberal theorists have tended to contend, but are only justified when they emerge as products of a normal democratic process, a view that is related to the republican account of freedom as non-domination.