In the UK, Brexit has led to a new public and scholarly debate about the constitutional implications of membership in the EU. Leading UK public law scholars now argue that membership has entailed a constitutional transformation to the extent that the old doctrine of ‘parliamentary sovereignty’ no longer rings true. EU membership has paved the way for judicial review, the adoption of fundamentals rights, a distinction between ‘constitutional statutes’ and ordinary legislation, and introduced the idea that ‘popular sovereignty’ can express itself via referenda. What is less discussed is that the process of constitutional transformation is not unique to the UK, but has taken place, albeit in different ways, in all the Member States. This paper discusses three different manifestations of constitutional transformation and the implications for (popular) sovereignty: (1) the ‘evolutionary democracies’ (2) the ‘post-fascist’ member states and (3) the ‘post-communist’ member states.
In order to understand the current calls for censorship, we must turn to the assumptions that comprise what political philosopher Charles Taylor calls the “social imaginary”, the way in which liberal ideas have shaped the way we think of ourselves. Once we see the explanatory power of these assumptions, we can understand why the call for censorship is voiced in such an urgent and confident manner; but it is also apparent that the confidence is misplaced, as it springs from nothing more than an ideology. To fully understand the rise of this pro-censorship liberal ideology, one must begin with an understanding of liberalism in its pro-speech form. Liberalism, as a political doctrine that seeks to secure a degree of liberty for diverse groups of people, is deeply unstable. We can then see how it gives rise to an authoritarian strain of the doctrine, which aims at homogeneity of belief. It is this doctrine that is implicated in the call for censorship; it prizes liberty in name alone.
How old is liberal democracy? According to Fareed Zakaria, who pointed to 1945 as its year of birth, it is 75. Though precise, Zakaria’s claim only makes sense in the context of his increasingly dubious distinction between democracies that are ‘liberal’ and those that are ‘illiberal’. If Zakaria is wrong, and if liberal democracy is not 75—then how old is this model of government? Could it be that liberal democracy expired long time ago? Or is it simply getting increasingly difficult to keep up with its ever more complicated versions, whose distinctive characteristics keep ‘morphing’ and ‘shape-shifting’? If so, which models of liberal democracy still count as sufficiently ‘liberal’ and ‘democratic’? Who’s to tell? Those who wish continue using their allegedly outdated models of liberal democracy without having to download the latest batch of allegedly critical upgrades? Or those who push them to replace their deliberately degraded models with the latest version of liberal democracy?
Popular sovereignty was presented in modern constitutional discourse as a mode of collective action. It was supposedly manifest in the power to constitute, control and dismantle governments. Important strands of contemporary constitutional theory, notably legal constitutionalism and deliberative democracy, have taken leave of this tradition. They have severed the connection between sovereignty and action. What remains of popular sovereignty is fundamental rights and values, or dispersed networks of deliberation. This is based on the idea that the place of power is ‘empty’, and is legitimised on the principle of including ‘All-Affected-Interests’. The very concept of sovereignty thus becomes unpopular. This contribution aims to re-establish the link between popular sovereignty and action by examining sovereignty’s emancipatory telos, its majoritarian mode of operation and its dependence on political citizenship.
This paper discusses sovereignty through the lens of radical republican theory, which is premised on the socio-ontological divide between the powerful few and the plebeian many, on the fundamental distrust of elites and the popular power to resist their domination. It surveys the constitutional ideas of Machiavelli and Condorcet and analyzes how their conception of plebeian sovereignty contributes to our understanding of the crisis of representative democracy and the erosion of institutions. While for Machiavelli the plebs were the ultimate guardians of liberty, having the final say on law and punishment as a check on oligarchic power, for Condorcet the sovereign was the common people gathered in a network of local assemblies, empowered to exercise veto, initiative, and constituent power to keep the republic free from systemic corruption.