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Constitutional Precommitments, and Their Relation to Democracy: An Evaluation of Holmes and Waldron.

Leonard O Goenaga

POT4930, Constitutional Theory

Professor Fatovic

February 18th, 2009

Question 2: Constitutional Precommitments, and Their Relation to Democracy: An Evaluation of Holmes and Waldron.

For some time, Constitutional Democracy has been seen as somewhat of an oxymoron. This tension has been between Constitutionalist (such as Hayek) and Democrats (such as Shapiro), who have argued over the dangers of an unchecked democratic mob, or aristocratic preserving tendencies of a dead constitution-writing elite. This debate has long been fought between both of these sides, each claiming their system to be the best, while fretting over perceived dangers of the other. However, Stephen Holmes, in Constitutionalism and Democracy, dares to argue that these two views are not so much mutually exclusive, and that they are essentially beneficial to one another’s existence. Holmes seeks to argue that Constitutionalism preserves and protects the opportunity for democracy in the form of precommitments. These precommitments can be defined as higher laws and principles, decided during the founding stages of a nation’s creation, which organize the functions and powers of government, as well as the rights and rules of the citizenry. In such a way, precommitments may be seen as binding restrictions, found in the form of written constitutional high law, that dictate a framework for further laws, and the functioning of government and power. It is the goal of this paper to survey the ideas of Holmes, a supporter of precommitments, and Waldron, whom opposed Holmes’ ideas, and discover which of these two areas of thought best preserve the idea of Democracy.

Before discovering the ways in which Constitutionalism enables Democracy, Holmes and those whom support precommitments must answer two questions regarding the ability of one generation to bind the latter. This argument against restraint is found within Thomas Paine and Thomas Jefferson, whom state that “the present generation has an unlimited and illimitable right to new-model the institutions under which it lives. The only consent that legitimates any form of government is ‘the consent of the living,’” (202). The trouble for Constitutionalism comes in this: how can dead generations of the past, set the rules for the present? Does it not initially seem that this process is anti-democratic? In addition, individuals who supported this view, such as Jefferson, suggest that “”only periodic and obligatory constitutional plebiscites can disenthrall the present from the past and assure every generation its proper say,” (205).

Having observed the complaints of Jefferson and Paine, we must now ask if a generation can bind the next. To answer this, we must observe first the type of contract being passed over, and the parties involved. “Rather than being presented as an exchange of promises between separate parties, modern constitutions are typically styled as frameworks which ‘we the people’ give ourselves,” (209). In other words, there are not two parties involved, but rather a single entity of the people prescribing to the established precommitments. “The present generation is bound by the decisions of its forefathers because the dead and the living constitute one people…Just like any other individual, a nation is bound by its original vows,” (208). This leads us to ask, why can one generation bind the next with such principles as constitutional precommitments? We find this in Holmes’ analysis of the inheritance of debt. “If you inherit another’s property you also inherit his debts,” (212). Perhaps conceptualizing the passing of debt improves an understanding of the individuals involved. “Whenever he accepts a bequest, a nonsigner of the original contract implicitly consents to the political conditions which make enjoyment of that property possible,” (213). The people, agreeing to this contract not with a second body, but within itself, and within the consent and contractual nature described in Locke’s second treatise, participates in the inheritance of the ‘property’ of the government. We also must ask, having established that the people constitute one body, and not contractual between two groups, if an individual can bind itself. A theological argument illuminates that one can restrain himself, while still preserving freedom. God committing himself to his own principles is a sign of His freedom. Committing to omnipotence allows omnipotence (213-214). Even Bodin understands the need for self-restraint, “by claiming that precommitment is a vehicle of royal freedom – the strategy by which a sovereign may most effectively assert his will.” (215).

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