Revisiting the debate between rights and democracy in light of the Project of Legislative Act 240 of 2019.

On September 2019 a Legislative Act was presented in the Colombian Congress seeking to reform the Political Constitution of 1991. This reform added a paragraph to the article on referendums, establishing that when the Constitutional Court by means of a ruling, interprets matters referring to fundamental rights “the citizens may request through a referendum that such interpretation be annulled, if they consider it contrary to their fundamental principles”. Although the Project was finally shelved, in late 2020, the author of the project returned to the media with his proposal.
This proposal for constitutional reform brings us back to one of the most interesting debates in legal theory in recent years: Can fundamental rights be decided by means of plebiscite democracy? This paper seeks to analyze the constitutional paradigm in the light of this debate, asking about the relationship between law and democracy and, more concretely, between plebiscitary democracy and constitutional rights.