The Rule of Law in Democratic Constitutionalism

The literature on the rule of law, and especially the debate over the constitutional implications of populism, tend to treat democracy and the rule of law as opposing values. This paper argues that this opposition is misconceived for it fails to account adequately for the ways in which democracy depends upon the rule of law for its integrity and efficacy. The rule of law enables democratic action; it does not merely or even principally constrain it. The paper will rehabilitate the notion of rule by law, suggesting that, to the extent that we have denigrated it, we have ignored the most important and distinctive dimension of the rule of law. Drawing upon examples from the CEE, the paper argues that populist governments often ignore the principles and institutions that maintain democracy’s integrity. In their neglect for the legal infrastructure the sustains democratic responsibility, populists are not simply bad constitutionalists; they are bad democrats.