The work aims to present a justification for the need to democratize the Constitution, within the perspective of weak constitutionalism, developed by Professor Joel Colón-Ríos. The assumption is that the relations between constitutionalism and democracy in modern constitutional democracies are most in favour of the limitations on the exercise of popular sovereignty. The proposal of a weak constitutionalism is presented as a possible way to redefine this balance putting the people to directly deliberate about the fundamental decisions of the Constitution and taking It away from Courts and Parliament. In order to proceed to this theoretical justification, we take separately the institutional and rights themes of the Constitution. Each one deserves a specific explanation about the need of popular participation in its essential definitions. Also, we try to think in constitutional designs that would make this proposal effective, drawing on some Latin American constitutional experiences.
This article explores elections from the perspective of ritual theory. Elections have a significant ritual dimension that is often neglected in mainstream sociological and legal accounts of voting. We analytically apply the category of ritual to understand elections as regulated repetitive collective actions that configure a social temporality and a spatiality. We explore how this perspective help us understand both the visible effects of elections (the efficacy of norms) through its invisible effects (e.g. social cohesion). By stressing the communal dimension of elections we finally discuss three popular debates in election studies that are crucial for liberal democracies: (a) the paradox of participation, i.e. we have little incentive to vote but low participation increases the value of our vote, (b) electronic voting, and (c) mandatory voting. A ritual understanding of voting is useful for theoretical discussions (a) as well as for empirical literature on participation (b, c).
This article uses a debate on non-resident voting to expose unexpected contours in the larger divide between global and local values. The Supreme Court of Canada held in Frank v Canada (Attorney General), 2019 SCC 1 that disenfranchising certain non-residents violated the Canadian Charter of Rights and Freedoms. I argue that the opinion is driven by a disagreement on national identity, in which the constitutional status of non-resident voters is emblematic of broader questions on how to treat borders in a globalized world. Non-resident voting offers a compelling case study in how these competing worldviews contrast, but also intermingle in unexpected ways. Thus, the majority cosmopolitan stance is surprisingly patriotic, while the dissent’s call for national sovereignty is bolstered by foreign law. These insights highlight the nebulous nature of national identity arguments, and offer lessons in bridging the seemingly insurmountable divides in this ongoing debate.
A basic principle of democracy is that elections must be ‘free and fair’. Freeness implies the absence of coercion or undue influence in electoral choices, while fairness means equal participation rights for voters and those to be voted. While this definition remains imperative in the 21st century, elections are increasingly affected by the rise of technology and social media. Facilitated access to information promotes citizens’ (equal) participation in democratic processes. At the same time, voters can, through the manipulation and individual targeting of information and in the absence of proper campaign regulations in the online sphere, be influenced in a much more unregulated manner than was possible before. In light of this, this paper will first review the notion of ‘free and fair’ elections in some EU legal systems, before suggesting a broader definition of these principles to also include the free formation of political will without undue manipulation in the online sphere.