Republican Constitutionalism: Freedom as Non-domination and the Democratic Challenge to Liberalism
摘要
Is constitutionalism irredeemably liberal? Constitutionalism is often defined as the limitation of power by the Constitution in order to preserve freedom. As such, it is often associated with liberalism, insofar as the latter places freedom at the foundation of all good government. The emergence of constitutionalism is therefore part of a broader history: that of the advent of liberalism. As such, liberal constitutionalism is based on two fundamental elements: natural rights and the existence of an alleged neutral and impartial power—constitutional judges—capable of protecting them. This contribution seeks to qualify this observation. It will show that another philosophy—republicanism—allows us to think constitutionalism differently. Based on a renewed definition of freedom (freedom as non-domination) and a renewed history of legal modernity, republicanism aims to demonstrate that constitutionalism can only protect freedom if it is part of a broader democratic and argumentative logic. This is why republicanism emphasises the ability of elected institutions and the people to protect the Constitution.